United States District Court, E.D. Wisconsin
JOHN H. BALSEWICZ, also known as MELISSA BALSEWICZ, Plaintiff,
CRAIG BLUMER, SGT. DARRYL FRANKLIN, EDWARD KREMER, GERALD LENNOP, MICHAEL HELMEID, LINDSAY DANFORTH, JOHN BESSERT, BRIAN SCHRAA, JOHN LENZ, JENNIFER SRNKA, and STEVE SCHMIDT, Defendants.
Stadtmueller U.S. District Judge.
John H. Balsewicz, a transgender prisoner also known as
Melissa Balsewicz (“Balsewicz”), is currently
incarcerated at Waupun Correctional Institution
(“Waupun”). She alleges that several medical
staff members at the Wisconsin Resource Center
(“WRC”), a mental health institution where she
was incarcerated from June 2016 to February 2017, were
deliberately indifferent to her risk of self-harm, in
violation of her rights under the Eighth Amendment. Next, she
alleges that two doctors, one at the WRC and another at
Waupun, were deliberately indifferent to her gender
dysphoria, in violation of her rights under the Eighth
Amendment, because they failed to promptly transmit her
gender dysphoria diagnosis to the appropriate committee
within the Wisconsin Department of Corrections
(“Corrections”) so that she could begin receiving
treatment. Finally, Balsewicz alleges that the WRC medical
staff defendants retaliated against her for filing a
grievance against a WRC social worker by removing her from
therapy and by ignoring her suicide threats, in violation of
her rights under the First Amendment.
parties have filed cross-motions for summary judgment.
(Plaintiff's Motion, Docket #33; Defendants' Motion,
Docket #41). Those motions are now fully briefed and ripe for
adjudication. See (Docket #33- #37, #41-#62,
#65-#66, #68-#73). For the reasons explained below,
Defendants' motion must be granted. Balsewicz's
motion will be denied as moot, and this case will be
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016).
following facts are material to the disposition of the
defendants' motion for summary judgment. They are drawn
from the parties' factual briefing, (Docket #43-#56,
#61-#62, #71-#73), unless otherwise noted. The Court will
discuss the parties' principal factual disputes as
times relevant to this case, Balsewicz was incarcerated
either at Waupun or at the WRC, which is a facility that
concentrates on treating Corrections inmates who are in need
of specialized mental health services. Although Balsewicz has
been treated at the WRC on several occasions during her
incarceration, the relevant time period for her claims in
this case started when she was admitted to the WRC on June
this time period, all but one of the defendants were
employees at the WRC. Doctor Craig Blumer (“Dr.
Blumer”) was the clinical director, Michael Helmeid
(“Helmeid”) and Gerald Lennop
(“Lennop”) were psychiatric care supervisors
(“PCS”), John Bessert (“Bessert”),
John Lenz (“Lenz”), and Brian Schraa
(“Schraa”) were psychiatric care technicians
(“PCT”), Lindsay Danforth
(“Danforth”) was a psychological associate,
Jennifer Srnka (“Srnka”) was a social worker,
Edward Kremer (“Kremer”) was a unit supervisor,
and Darryl Franklin (“Franklin”) was a sergeant.
Doctor Steve Schmidt (“Dr. Schmidt”), the only
non-WRC defendant, was a supervisor in the psychological
services unit at Waupun, where Balsewicz was incarcerated
before and after she was placed at WRC.
Gender Dysphoria Diagnosis and Referral for
has a Transgender Committee whose purpose is to offer
guidance or direction in making determinations as to
appropriate treatment and accommodations for inmates who are
transgender, who meet DSM-5 criteria for gender dysphoria,
who have a verified intersex condition. The Transgender
Committee meets monthly to discuss requests from individual
inmate requests transgender services, such as hormone therapy
or sex reassignment surgery, a psychological services unit
staff member conducts an in-person assessment and writes a
report about the inmate's alleged gender issue. When the
report is complete, the staff member, or his or her
supervisor, forwards a copy to Doctor Kevin Kallas
(“Dr. Kallas”), the mental health director for
Corrections and a member of the Transgender Committee. Dr.
Kallas decides whether to refer the inmate for further
assessment by Corrections' outside transgender
consultant, Cynthia Osborne (“Osborne”).
evaluation of an inmate includes review of relevant health
records, pre-sentence investigations, and prison incident
reports, as well as a meeting with the inmate. Osborne
prepares a written report with her recommendation for
treatment, and Corrections makes its treatment decision based
on that report.
around early April 2016, while she was incarcerated at
Waupun, Balsewicz underwent a gender dysphoria assessment.
The assessment was conducted by Bonnie Halper, a
psychological associate at Waupun. On April 26, 2016, Halper
sent her report to Dr. Schmidt by email, and asked him to
forward it to the Transgender Committee for consideration of
Balsewicz's request for gender dysphoria treatment. On
April 28, 2016, Dr. Schmidt responded to Halper's email,
but his response only pertained to issues involving another
inmate. He did not forward Halper's report about
Balsewicz to the Transgender Committee. He avers that this
failure was an oversight and was not intentional; he says he
merely forgot to send it along. (Docket #46 at 3).
two months later, on June 16, 2016, Balsewicz was admitted to
the WRC for mental health issues including depression and
borderline personality disorder. On August 19, 2016, in a
session with a non-defendant WRC psychologist, Balsewicz told
the psychologist that he had undergone a gender dysphoria
assessment at Waupun and was waiting to learn if he would be
permitted to see Osborne. (Docket #44-1 at 46). The
psychologist said she would follow up with Dr. Blumer, the
clinical director at the WRC, to determine where the
Transgender Committee was in terms of its review of
Balsewicz's assessment. Id. Dr. Blumer testifies
in his declaration that he first learned from the
psychologist on September 23, 2016 that Balsewicz had
undergone a gender dysphoria assessment while at Waupun.
(Docket #48 at 3). He then immediately forwarded the report
to Dr. Kallas. Id. Dr. Kallas reviewed it and
advised Dr. Blumer that Balsewicz was an appropriate
candidate to see Osborne for further evaluation. Balsewicz
was placed on a list to see Osborne at her next available
opening, which was not until February 2017.
evaluated Balsewicz and confirmed the diagnosis of gender
dysphoria. In her written report, Osborne recommended that
Corrections defer consideration of hormone treatment for at
least a year due to Balsewicz's lack of psychological
stability. Osborne recommended that Balsewicz engage in
treatment to focus on learning positive coping skills, and
while doing so, that she be permitted access to the usual
accommodations available to other inmates with gender
re-evaluated Balsewicz on April 2, 2018 and issued a
corresponding report on May 11, 2018 (after this case was
filed). In that report, Osborne observed that Balsewicz still
displayed maladaptive personality traits, but given the
duration of Balsewicz's reported gender dysphoria, it was
reasonable for Balsewicz to start hormone therapy. As of the
time of the filing of the parties' summary judgment
materials, Balsewicz had not yet started hormone therapy, but
the defendants indicate the treatment is imminent.
Kallas testified by declaration that even though there was a
delay from April 2016 to September 2016 in his receiving the
gender dysphoria assessment report that Halper prepared,
there was not a resulting delay in Balsewicz receiving
hormonal treatment. (Docket #50 at 6). This is because
Osborne's February 2017 recommendation to defer hormones
was based largely upon Balsewicz's longstanding history
of psychological problems and personality-based
vulnerabilities. Id. Therefore, an earlier
evaluation would not, in Dr. Kallas' opinion, have
resulted in a more favorable recommendation for hormones.
Balsewicz's Depression and Suicide Attempts
her admission to the WRC in June 2016 (after Halper's
assessment was completed but before Dr. Blumer sent
Halper's report to Dr. Kallas), Balsewicz reported that
she had been depressed her whole life and that she had
constant thoughts of suicide. Her admission assessment chart
indicates that she had been diagnosed with major depressive
disorder, borderline personality disorder, and gender
dysphoria (provisional). (Docket #48-1 at 25). Her initial
treatment plan included staff monitoring her emotional and
mental health, as well as participation in a depression
support group and dialectical behavior therapy
(“DBT”). DBT is a treatment that is designed for
individuals with borderline personality disorder who struggle
with life-threatening behaviors, including suicidality and
intentional self-harm. On August 23, 2016, Balsewicz signed a
DBT agreement, indicating that she would commit to treatment
for at least six months and would commit to reducing
life-threatening behaviors. On August 30, 2016, staff at the
WRC added a goal of “being free from suicidal thoughts
and attempts” to her treatment plan.
September 2016, Balsewicz reported on multiple occasions that
she had a decreased urge to harm herself or commit suicide.
She continued with group therapy for her depression and she
participated positively on occasion, although she was
sometimes disruptive during group sessions. In October 2016,
she reported increased urges to commit suicide, and those
impulses were discussed in individual therapy sessions.
During those sessions, Balsewicz did not report a current
intent or plan to follow through on her thoughts of suicide.
At the end of October, Balsewicz reported that she was
feeling better overall, but still struggled with depression.
November 2016, Balsewicz's DBT treatment providers at the
WRC noted that Balsewicz's primary concern in her
sessions was her gender dysphoria, not the conditions for
which she was referred to WRC to be treated with DBT.
Balsewicz claims that her depression stemmed from not being
treated for her gender dysphoria. Balsewicz began to refuse
to participate in some DBT activities, and treatment
providers began to question her motivation to continue with
the treatment. Throughout November, Balsewicz reported
suicidal urges, but told her treatment providers that she had
no imminent intent to act on the urges.
November 29, 2016 session with defendant Srnka, Balsewicz
stated that she no longer wanted to be in individual therapy.
She revoked her consent for staff to speak to her family, and
she told Srnka that she had already said her goodbyes to her
family. After the session, Srnka sent an email to other
members of the WRC staff-Dr. Blumer, Franklin, Danforth, and
Spiegelberg-expressing her concern about Balsewicz and
advising that staff keep an “extra eye on [her] in case
[she] does try anything.” (Docket #49-1 at 9).
Spiegelberg responded, stating that she would conduct a
suicide risk assessment later that day during her session
with Balsewicz. Id. at 9. She later reported that
Balsewicz was not actively suicidal, based on Balsewicz's
statement to her that she had not “gotten to that point
yet.” Id. at 8-9. However, Spielberg went on
to say that “[Balsewicz] does intend to die by hanging.
[She] expressed that [she] came into this world by a cord and
that [she] will leave by a cord.” Id. The next
day, November 30, Danforth responded to the group email that
she “passed this information on to the PCTs and asked
them to keep a close eye on [Balsewicz].” Id.
at 8. She also “requested that they do a room search
just to make sure [she] doesn't have any ligatures in
[her] cell.” Id.
December 2016, Balsewicz's treatment providers noted her
commitment level to DBT to be low, and for that reason, WRC
staff agreed that Balsewicz should be removed from the DBT
program. She continued with the other portions of
her treatment plan.
December 9, 2016, Danforth wrote to Dr. Blumer by email to
express her heightened concern about Balsewicz's suicide
threats. She indicated that Balsewicz said she would kill
herself by hanging if she was transferred back to Waupun.
See (Docket #49-1 at 12-13). Dr. Blumer responded
that Balsewicz's treatment team at the WRC should assess
her level of suicide risk and respond accordingly.
Id. He continued: “I encourage you to
continue to do what you are doing in increasing awareness and
monitoring by staff, offering appropriate treatment and
assessing risk. If the least restrictive means of insuring
[her] safety is [clinical observation] then that is where
[she] should be placed.” Id.
December 16, 2016, Balsewicz reported to Srnka specific plans
and means to follow through with a suicide attempt.
Specifically, she stated that she would take pills and cut
both of her wrists. (Docket #44-1 at 5). She named several
objects available in the prison that could be sharpened and
used to cut her wrists, including a cocoa butter lid, the
plastic from a deodorant stick, or her glasses. Id.
She also said she had asked other inmates to give her their
medication, but none agreed. Id.
consulted with Danforth that day, and together they agreed to
move Balsewicz to the “high management unit” and
place her on clinical observation status. See
(Docket #44-1 at 5). There are cameras in the observation
cells to assist with observation, and staff also check on the
inmates housed on high management every fifteen minutes.
(Docket #49 at 4). Balsewicz's clothing was taken away
immediately upon being put on observation status and she was
given a security smock and a mattress. However, in the
afternoon of that day, Srnka and Danforth met with her,
assessed her, and decided to give her clothes back because,
according to an email by Danforth, Balsewicz “had been
cooperative with the observation placement” and