United States District Court, W.D. Wisconsin
OPINION & ORDER
WILLIAM M. CONLEY District Judge
April 7, 2015, this court granted plaintiff Roy Mitchell
leave to proceed under 42 U.S.C. § 1983 on Eighth
Amendment claims against Drs. Kevin Kallas and Dawn Laurent
for their alleged failure to treat Mitchell for gender
dysphoria while she was incarcerated at Columbia Correctional
Institution (“CCI”). (Dkt. #11.) Before the court
are plaintiff's Motion for Partial Summary Judgment (dkt.
#86) and defendants' Motion for Summary Judgment (dkt.
#110). Since the undisputed facts do not support a finding
that Kallas and Laurent acted with deliberate indifference to
Mitchell's need for treatment, plaintiff's motion
will be denied and defendants' motion will be granted.
Moreover, even if a reasonable jury could find
deliberate indifference on this record, both defendants are
entitled to qualified immunity given the unsettled law and
varying protocols for gender dysphoria. Accordingly, judgment
will be entered in defendants' favor.
Mitchell is a former CCI inmate. While biologically male,
Mitchell identifies as a female.
Drs. Kevin Kallas and Dawn Laurent are both employed by the
Wisconsin Department of Corrections (“DOC”). Dr.
Kallas is a trained psychiatrist. He has been DOC's
Mental Health Director since 2002, overseeing the DOC's
mental health care. His responsibilities include supervising
the DOC's Psychology Director and Psychiatry Director,
assisting in developing mental health policies, and
conducting clinical consults on specific cases by request. As
such, Kallas does not provide direct clinical treatment to
inmates at institutions, and he has never provided direct
clinical treatment to Mitchell. Rather, he was involved with
assessing and ushering through her requests for hormone
Laurent is a licensed psychologist. She was employed as the
Psychological Services Unit (“PSU”) Supervisor at
CCI from December 2011 to November 2013. During this time,
Laurent was responsible for development, administration and
coordination of psychological programs in the unit. In that
capacity, Laurent met with Mitchell once, during October of
DOC's Gender Dysphoria Treatment Generally
dysphoria is defined by the DOC as:
Discomfort or distress caused by a marked difference between
an individual's expressed/experienced gender and that
gender that others would assign him or her. A DSM-5 diagnosis
of gender dysphoria requires the condition to be present for
at least six months and causes clinically significant
distress or impairment in social, occupational, or other
important areas of functioning.
the DOC, psychologists and psychiatrists together diagnose,
monitor and treat inmates with gender dysphoria. However,
only psychiatrists have the authority to order or administer
his time as Mental Health Coordinator, Dr. Kallas has been
involved with approximately 100 inmates with gender
dysphoria. Kallas believes that there are approximately 35
inmates in the DOC with gender dysphoria currently. Kallas
also sits on the Gender Dysphoria Committee (the
“Committee”), which was created in 2011 to ensure
that inmates meeting the DSM criteria for gender dysphoria
receive appropriate treatment. Among other endeavors, the
Committee consults with outside authorities regarding inmates
with gender identity issues.
such outside authority is Cynthia Osborne, who holds a
Masters of Science in Education and a Masters of Social Work.
She is an assistant professor at Johns Hopkins University,
and she specializes in providing gender dysphoria
evaluations. As a part of her consults, Osborne travels to
Wisconsin each year, evaluates selected inmates in person and
makes recommendations regarding gender identity diagnoses.
Osborne also conducts a monthly conference call for PSU staff
at DOC institutions across Wisconsin to discuss questions
related to inmates with gender dysphoria issues.
also implemented a gender dysphoria policy, DAI #500.70.27.
In outlining DOC's treatment of gender dysphoria, the
policy takes into consideration various guidance documents,
including the World Professional Association for Transgender
Health (“WPATH”) standards of care. WPATH
standards of care provide clinical guidance for the treatment
of transgender patients, but they are “flexible”
and can be modified to address the needs of the institutional
relevant to the present lawsuit, DAI #500.70.27 permits
hormone treatment for inmates with gender dysphoria as a
means to feminize the body, reduce gender dysphoria and
minimize the risk of depression, anxiety or other
impairments. The policy provides that inmates who are not
receiving hormonal medication at the time of DOC intake may
be started on hormonal medications provided that: (1) the
inmate cooperates with DOC staff in obtaining records or
other necessary confirmations of previous treatment; and (2)
the Committee determines that the hormones are medically
necessary and not contraindicated for any reason. As noted
above, the Committee can use an outside consultant to make
treatment decisions, a practice that is consistent with the
WPATH standards of care. The DOC is not, however, bound by
any recommendations made by consultants.
DOC has a practice not to begin hormone treatment
unless an inmate will remain incarcerated for at least six
months after treatment begins. DOC justifies this practice on
three grounds: (1) the DOC needs six months to assess the
benefits of the treatment and any side effects, as well as to
determine a proper dose and follow appropriate follow-up
laboratory tests to check for signs of cardiovascular
impairment and venous thromboembolism; (2) hormone therapy
cannot actually begin until the inmate has been screened for
medical contraindications; and (3) WPATH standards emphasize
the importance of medical screening before administering
hormone therapy, as well as consistent clinical and
laboratory monitoring during the first year of treatment.
While the DOC does not provide treatment after an
inmate's release, the Committee has on occasion responded
to questions from the Division of Community Corrections
agents about conditions of supervision for former inmates
with gender dysphoria.
Mitchell's Hormone Treatment Requests
arriving at CCI on October 11, 2011, Mitchell had already
been diagnosed with gender dysphoria. Upon her arrival, Dr.
Patrick Kumke, a Psychological Associate, met with Mitchell
and noted several diagnoses, including gender dysphoria.
Kumke also noted that PSU would continue routine clinical
monitoring of Mitchell. He further instructed Mitchell to
talk to her assigned clinician once she received her housing
November 25 and 27, 2011, Mitchell submitted formal
psychological services requests asking for female hormone
treatment. Dr. Teresa McLaren from PSU responded that they
could discuss these requests during their appointment, which
was scheduled for that week. When the two met on November 30,
they discussed Mitchell's ongoing nightmares, sleep
problems and social habits. Mitchell also asked about the
DOC's policy related to gender dysphoria. In response,
McLaren advised that the policy was in the process of being
finalized, and she would provide a copy to Mitchell once it
December of 2011, Mitchell wrote a follow up request to Dr.
Kallas for hormone treatment. In response, Dr. Kallas asked
Dr. McLaren to conduct a gender dysphoria assessment on
Mitchell. After conducting an exam, Dr. McLaren responded
that in her opinion Mitchell should be considered for gender
dysphoria treatment by the Committee. The Committee likewise
deemed Mitchell an appropriate referral for an evaluation by
its consultant from Johns Hopkins, Cynthia Osborne.
March 5, 2012, Dr. Kallas wrote to Mitchell, advising that
she would be meeting with Osborne for a consultation in April
of 2012. (See dkt. #1, Exh. E.) Kallas also told
Mitchell to work with Dr. Laurent in assigning her a
clinician. At the beginning of April, Mitchell submitted yet
another psychological services request, which she directed to