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Gulley-Fernandez v. Johnson

United States District Court, E.D. Wisconsin

May 25, 2018




         The pro se plaintiff, Dominique DeWayne Gulley-Fernandez, is incarcerated at the Wisconsin Secure Program Facility. Plaintiff alleges that defendants violated her[1]rights under the Eighth Amendment to the United States Constitution and state law because they have not properly treated her gender identity disorder and continue to house her at an institution that is harmful to her condition. The parties have filed cross-motions for summary judgment. In addition, plaintiff has filed a motion for diagnostic evaluation, a motion to appoint counsel, a motion for injunctive relief, and a motion for a John Doe criminal investigation. Because the undisputed facts establish that plaintiff does not have gender identity disorder and that defendants did not act with deliberate indifference to her condition, I will grant defendants' motion for summary judgment, deny plaintiff's summary judgment motion, and dismiss this case.


         On March 21, 2016, the court consolidated this case with Gulley-Fernandez v. Johnson, Case Number 15-cv-995-RTR (E.D. Wis.). (ECF No. 56.) Plaintiff filed her comprehensive amended complaint on March 31, 2016. (ECF No. 62.) She alleged that defendants have failed to treat her gender identity disorder and mental health issues, and that defendants have continued to house her near inmates who sexually harass and abuse her. I subsequently screened plaintiff's comprehensive amended complaint and allowed her proceed on these claims under the Eighth Amendment. (ECF No. 71.)

         On May 4, 2017, I consolidated Case No. 17-cv-1347-LA with this case. (ECF No. 154.) In that case, which was transferred from the Western District of Wisconsin, plaintiff alleged that defendants Tracy Johnson, David Gardner, T. Sebranek, and Dr. Burton Cox, Jr., were failing to properly treat plaintiff's gender dysphoria in violation of the Eighth Amendment and state law.

         I subsequently granted plaintiff's request to dismiss defendants Dr. Torria Van Buren, Dr. Gary Ankarlo, Dr. Kevin Kallas, Dr. Victoria (Tori) Sebranek, Dr. Burton Cox, Timothy Haines, and Troy Hermans. (ECF No. 170.) That leaves only the following individuals as defendants: Shirley Dawson, Dawn Landers, Tracy Johnson, Christa Morrison, David Gardner, and Gary Boughton.


         A. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         B. Factual Background[2]

         Plaintiff is an inmate in the custody of the Wisconsin Department of Corrections. She was transferred from Dodge Correctional Institution to the Wisconsin Secure Program Facility (WSPF) on March 10, 2011, where she is currently housed. Defendant Dawson was a psychiatrist at Dodge Correctional Institution while plaintiff was housed there in 2010-2011. Defendant Landers was a licensed psychologist at Dodge Correctional Institution. Defendant Johnson is the psychologist supervisor at WSPF. Defendant Morrison is an offender classification specialist with the Bureau of Offender Classification and Movement. Defendant Gardner is an administrative captain at WSPF. Defendant Boughton is the warden at WSPF. Morrison and Gardner serve as members of the Program Review Committee at WSPF.

         Plaintiff has been allowed to proceed on her claims that defendants failed to adequately treat her gender identity disorder and mental health issues at WSPF. She is proceeding on Eighth Amendment deliberate indifference claims against all defendants. She also proceeds on state-law claims for medical malpractice and negligence against Johnson based on allegations that Johnson ignored her requests for treatment or transfer. (See Case No. 17-cv-347-LA, ECF No. 18 at 8.) Plaintiff's claims can be properly divided into two groups: (1) claims against health and psychological care staff members (Dawson, Landers and Johnson) that resulted in her placement at WSPF and (2) claims against other staff (Morrison, Gardner, and Boughton) who allegedly unconstitutionally retain her at WSPF.

         1. Plaintiff's History within the Wisconsin Department of Corrections

         Plaintiff claims that she, as a transgender inmate, is inappropriately and unconstitutionally housed at WSPF. She believes that the defendants have violated her constitutional rights by failing to house her around inmates who are more tolerant of her condition. Plaintiff claims that, at WSPF, she is housed around inmates that call her names. She believes that WSPF does not have appropriate psychological or health care staff to treat inmates with gender identity disorders. Plaintiff admits that she has never been diagnosed with a gender identity disorder, that a gender identity disorder diagnosis is a matter of medical judgment, and that none of the named defendants have ever said anything negative to her regarding her stated gender identity.

         In October 2015, plaintiff underwent a gender identity consultation with the department's independent consultant, Cynthia Osborne. Osborne did not diagnose plaintiff with a gender identity disorder.

         Most recently, and in the context of this lawsuit, plaintiff was evaluated by Dr. Chester Schmidt, a Johns Hopkins psychiatrist who specializes in the diagnosis, treatment and care of patients with gender identity disorders. Dr. Schmidt met with plaintiff on July 13, 2017. Plaintiff claims that she was honest during her conversation with Dr. Schmidt, and that the two discussed plaintiff's family, history, alleged symptoms of gender identity disorder, and physical symptoms that she believes are related to her disorder. Plaintiff shared with Dr. Schmidt that she would like to undergo psychotherapy, hormonal treatment, and eventually have a sex change operation.

         Dr. Schmidt's October 2, 2017, report noted that plaintiff “has a many year interest in living in a cross-gender role.” (Rakvic-Farr Ex. 1007 at 1.) He noted that plaintiff, although street-wise about everyday activities, makes poor decisions when it comes to her relationship with authority and societal and prison rules. Dr. Schmidt diagnosed plaintiff with mild intellectual disability and antisocial personality disorder.

         Based upon the lack of independent medical records that confirm plaintiff's assertions regarding her history of taking cross-sex hormones and upon her unreliable historical reports and attempts at deception, Dr. Schmidt concluded that plaintiff is not eligible for management with cross-gender hormones. He found that plaintiff did not meet three of the four criteria that psychiatrists analyze before prescribing hormone therapy.[3] Dr. Schmidt noted that plaintiff has failed to demonstrate the ability to conform her behaviors to social norms even in the highly-structured prison environment and that plaintiff has taken no responsibility for her repeated disruptive behaviors.

         Plaintiff's ongoing psychological concerns prevented Dr. Schmidt from making a diagnosis of gender dysphoria. Dr. Schmidt opened that f plaintiff is diagnosed with gender dysphoria in the future, a clinical decision regarding whether plaintiff is eligible for cross-gender hormones should be made at that time. According to Dr. Schmidt, once plaintiff's disciplinary and medical records “document stabilization of function, ” plaintiff should be evaluated once again. Until then, she should continue to be provided counseling therapy.

         2. Plaintiff's Alleged Gender Identity Disorder

         Plaintiff describes her sexual orientation as “bisexual slash transgender, ” but admits that her sexual orientation has evolved over time. Plaintiff was not treated for gender identity issues prior to her incarceration in 2010, though she took hormones that she purchased off the street and used intermittently for some time in her early teens.

         Plaintiff first had feelings that she wanted to transition from male to female when she was eight years old. She cross-dressed a handful of times as a child, and dressed as a woman daily in high school. Plaintiff has taken steps to feminize herself within prison, including using socks and clothing to fill out her chest.

         At her deposition, plaintiff explained that she would like to live “fully” as a woman for “a day, two days, a week, a month, a year. Go from there, do the hormonal therapy treatment, the psychotherapy, and then the whole - undergoing the whole SRS.” (Rakvic-Farr Ex. 1006, Gulley Dep. 123:23-124:2.) Plaintiff has a mandatory release date in 2021 (with no possibility of parole before then) and agrees that it will be ...

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