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Balsewicz v. Blumer

United States District Court, E.D. Wisconsin

March 26, 2019

JOHN H. BALSEWICZ, also known as MELISSA BALSEWICZ, Plaintiff,


          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         Plaintiff 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.

         The 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 dismissed.


         Federal 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).

         3. RELEVANT FACTS

         The 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 appropriate.

         At all 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 16, 2016.

         During 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.

         3.1 Gender Dysphoria Diagnosis and Referral for Treatment

         Corrections 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, [1] or who have a verified intersex condition. The Transgender Committee meets monthly to discuss requests from individual inmates.

         If an 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”).

         Osborne's 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.

         In or 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).

         About 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).[2] 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.

         Osborne 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 dysphoria.

         Osborne 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.

         Dr. 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. Id.

         3.2 Balsewicz's Depression and Suicide Attempts

         Upon 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).[3] 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.

         In 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.

         In 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.

         In a 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.

         In 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.[4] She continued with the other portions of her treatment plan.

         On 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.[5] 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.

         On 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.

         Srnka 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 ...

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