• • Case 1:09-cv-10272-JLT Document 1 Filed 02/24/09 Page 1 of 17 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

VA]':lESSA ADAMS, legal name Nicholas Adams

)

)

)

Plaintiff,

)

v.

09~ CA

10272

)

FEDERAL BUREAU OF PRISONS; FEDERAL

)

BUREAU OF PRISONS DIRECTOR HARLEY G. )

LAPPIN, in his official capacity; REAR ADMIRAL )

NEWTON E. KENDIG, MD, in his official capacity, )

and DR. JAMES FLETCHER, PSYCHIATRIST FMC )

DEVENS, in his individual capacity,

CIVIL ACTION NO. _ _ __

JLT

Defendants

COMPLAINT
Plaintiff Vanessa Adams, legal name Nicholas Adams, I by counsel, brings tins action to obtain redress for the deprivation of her federal constitutional rights, as hereinafter alleged.
INTRODUCTION 1. Plaintiff is currently a prisoner serving her sentence at a facility operated by the
Federal Bureau of Prisons ("BOP").
2. Plaintiff was diagnosed with Gender Identity Disorder in 2005 by medical
professionals at United States Medical Center for Federal Prisoners (USMCFP) Springfield.
3. Despite knowing of the Plaintiff's diagnosis and of the fact thai she has on multiple occasions caused serious harm to herself, Defendants have refused, and continue to refuse to provide appropriate medical care for Plaintiffs (;ondition.

1 Although Plaintiff was born a biological male, she identifies as female, goes by "Vanessa," and inknds to change her legal name to "Vanessa Adams." Accordingly, throughout this pleading, she will be referred to tv the feminine pronoun and salutation.
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<t. Plaintiff by this action challenges Defendants' refusal to provide medical care as
an unconstitutional deprivation in violation of the Eighth Amendment of the United States Constitution.
5. In support of their refusal to provide medical care for Plaintiff, BOP officials and staff have referred to a BOP policy which prevents prisoners 'With Gender Identity Disorder from receiving individualized medical assessments and trealment for this serious medical condition.
6. Plaintiff challenges the constitutionality of this policy both on its face and as
applied to her as a violation of the Eighth Amendment of the United States Constitution.
7. Plaintiff seeks declaratory and injilllctive relief, as well as money damages.
JURISDICTION
8. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 in that it is a civil action arising under the Constitution and laws of the United States and is premised upon the acts or omissions of defendants acting illlder color of federal law.
9. Jurisdiction in this Court is proper for the Plaintiffs claim for dedaratory and injunctive relief against Defendants Federal Bureau of Prisons, Director Harley G.
Lappin, and Assistant Director Health Services Dr. Newton E. Kendig in their official capacities pursuant to 5 U.S.C. § 702.
10. This Court is authorized to grant declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
II. Jurisdiction in this Court is proper for the Plaintiffs damages claim against Defendant DR. FLETCHER in his individual capacity in that it is premised upon the cause of action recognized in the United States Supreme Court ruling in Bivens v. Six Unknown Agents ofthe Federal Bureau ofNarcotics,'l03 U.S. 388, 397 (1971), as well as the Eighth Amendment of the United States Constitution.
12. Venue in the District of Massachusetts is proper pursuant to 28 U.S.C. § 1391(e).
13. All Defendants are agencies, officers, or employees of the Uniled States of America, or were at the time of the incidents at issue.
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• • Case 1:09-cv-10272-JLT Document 1 Filed 02/24/09 Page 3 of 17 PARTIES
14. Plaintiff. VANESSA ADAMS, at all times material to this action. has been a federal prisoner in the custody and control of the Federal Bureau of Prisons (BOP). She is currently housed at United States Penitentiary-I, Federal Correctional Complex at Coleman in Florida (USP-I Coleman).
15. Defendant, FEDERAL BUREAU OF PRISONS (hereinafter, "BOP"). is the United States agency that currently and at all times relevant to this Complaint, has custody and control of Plaintiff Adams.
16. Defendant, HARLEY G. LAPPIN. ("LAPPIN"), is currently aCId has been Director of the BOP at all times relevant to this claim. He is sued in his official capacity.
17. Defendant, REAR ADMIRAL NEWTON E. KENDIG, MD ("KENDIG"), is currently Assistant Director, Health Services Division and Medical Director of the BOP. He has been Medical Director of the BOP since 1999, and Assistant Director, Health Services Division, since August 2006. He is responsible for the provision of health services at all BOP facilities. He is sued ir- his official capacity.
18. Defendant, DR. JAMES FLETCHER, was the psychiatrist responsible for Plaintiff Adams' medical care at Federal Medical Center Devens frem August 4, 2005 through March 23,2006. He is sued in his individual capacity.
19. There is an actual controversy between and among the parties.

GID IS A SERIOUS MEDICAL CONDITION THAT REQUIRES ADEQUATE MEDICAL TREATMENT
20. Ms. Adams was diagnosed with GID in 2005 by mental health providers employed by Defendant BOP.

21.
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GID is a recognized diagnosable and treatable medical condition listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). Diagnosis is based on the following .::riteria: (I) a strong cross-gender identification, which is the desire to be, or the insistence that one is, the other sex; (2) a persistent discomfort with one's assigned sex or an inappropriateness in the gender role of that sex; (3) the disturbance is not concurrent with a physical intersex condition (e.g. a person who is born with ambiguous genitalia); and (4) the disturbance causes clinically significant distress
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• • Case 1:09-cv-10272-JLT Document 1 Filed 02/24/09 Page 4 of 17 or impairment in social, occupational, or other important areas of fundioning.
22. The World Health Organization also recognizes the discordal1ce between anatomical sex and gender as a disorder in its 1990 publication, The International Classification of Diseases (known as lCD-to), but uses the nomenclature of transsexualism.
23. The World Professional Association for TransgenderHealth (WPATH) is an international professional association of physicians and other health care professionals who specialize in treating OlD. WPATH promotes understanding and treatment of gender identity disorders. WPATH publishes the intemationally accepted Standards of Care for the Treatment of Gender Identify Disorders (Standards ofCare).
24. The Standards ofCare are guidelines for care and treatment of people with OlD.
25. The goal of medical treatments for GID according to the Standards ofCare is: (I) to alleviate the clinically significant distress and impairment or functioning associated with GID, and (2) to achieve lasting personal comfilrt with the gendered self in order to maximize overall psychological well-being and selffulfillment.
26. The Standards of Care provide that there are three medically appropriate treatment options to treat GID: (I) hormones of the desired gender; :2) the "reallife experience," i.e. living full-time in the new gender, as a prerequisite to surgery; and (3) surgery to change the sex characteristics of the pelson suffering from GID. These treatment options are frequently referred to as tri.adic therapy. Triadic therapy is recognized throughout the medical community as the accepted and appropriate treatment for GID.
27. According to the Standards ofCare and the DSM-IV-TR, people with GID who do not receive appropriate medical treatment are at risk of genital self-harm (a form of surgical self-treatment through auto-castration or auto-penectomy that can lead to serious, even life threatening, injuries), depression, anxiety. and suicide attempts.
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MS. ADAMS' GENDER IDENTITY DISORDER WAS DIAGNOSED BY THE BOP IN 2005
28. Ms. Adams was received by the BOP in 1999, and is currently s.crving a 248month sentence in the BOP, with a projected release date in 2017. Since 1999, Ms. Adams has been imprisoned in at least seven different BOP facilities in seven states. She was initially designated to Federal Correctional Institution ("FCI") Tucson in Arizona, and then transferred to FCI Victorville in California where she was incarcerated for three years. In 2003 she was transferred to United States Medical Center for Federal Prisoners ("USMCFP") Springfield, in 'v1issouri for a psychiatric evaluation. She was returned to FCI Tucson in Febru~Jy 2004. She returned to USMCFP Springfield in May 2004 for voluntary inpat: ent treatment after her third suicide attempt in BOP custody.
29. After attempting to cut off her testicles, in August 2005, Ms. Adams was transferred to Federal Medical Center ("FMC") Devens in Massachusetts for inpatient mental health treatment. In March 2006, she was transferred to United States Penitentiary ("USP") Beaumont in Texas where she was held until December 2006. In December 2006, she was sent to the Federal Tr:msfer Center in Oklahoma before her final transfer on January 4, 2007 to USP-l Coleman in Florida, where she is currently incarcerated.
30. Ms. Adams was born in Greenville, Illinois in 1970. Throughout her life, Ms. Adams has believed she was assigned the wrong gender. This has caused her much emotional turmoil since she was a child, but she was not able to seek treatment because of family and societal pressures.
31. The emotional and physical consequences of identifYing as female while being physiologically male intensified severely during her time of incarc"ration within the BOP, resulting in several suicide attempts and eventually leading to her 2005 GID diagnosis.
32. In September 2002, at FCr Victorville, Ms. Adams attempted suicid~ by hanging herself.
33. In July 2003, at FCI Victorville, Ms. Adams attempted suicide bo' cutting her wrists.
34. In May 2004, at FCr Tucson, Ms. Adams admitted to planning to ccmmit suicide by taking deliberate action that would lead correctional officers cO shoot her (colloquially known as "death by cop").
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35. As a result of this attempt, Ms. Adams was sanctioned to 30 days disciplinary segregation and transferred to the Axis II residential treatment program at USMCFP Springfield to address her suicidality and chronic depression.
36. While participating in the Axis II program, Ms. Adams raised he;' feelings of being trapped in the wrong body during individual counseling for d,:pression and tendencies toward self-harm.
37. Ms. Adams' treating psychologist at USMCFP Springfield formally diagnosed Ms. Adams with Gender Identity Disorder sometime in late 2004 or c.lTly 2005.
DEFENDANTS FAILURE AND REFUSAL TO TREAT MS. ADAMS' GID CONDITION
38. Despite this diagnosis and Ms. Adams' numerous requests for GID treatment starting in February 2005, Defendant BOP refused to provide medkal treatment. This denial exacerbated Ms. Adams' GID condition and caused her overall health to further deteriorate.
39. Although Defendants knew that persons with untreated GID hav.:: heightened suicide risk, and that Ms. Adams had a history of suicide attempts. Defendants denied Ms. Adams adequate medical care to treat her condition. On February 8, 2005, at USMCFP Springfield, Ms. Adams attempted to hang herself in her cell.
40. Defendant BOP still did not provide Ms. Adams with treatment fo 1I0wing this suicide attempt. Instead, she "''as charged with Destruction of Government Property for breaking the sprinkler head that failed to support her weight during the suicide attempt, and charged a fine of $50.00.
41. On July 15, 2005, also while at USMCFP Springfield, Ms. Adams ;)ttempted to cut off her testicles with a razorblade. as an attempt at self-treatment for her GID. Ms. Adams was found in the shower in a pool of blood, with a gaping wound in her scrotal sac that required seven staples to repair.
42. Ms. Adams told the nurse attending to her wound, "I cut myself with a razor, these things are driving me nuts. I don't want them anymore. Nc·i:lody knows what it is like to be in the wrong body. Can't you just finish it." •
43. After this incident, Ms. Adams' treating psychiatrist confirmea her initial diagnosis of GID, but still did not provide her treatment. Instead Ms. Adams was disciplined for 30 days and transferred to the inpatient mental healthlnit at FMC Devens.
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44. Defendants knew Ms. Adams had a serious medical condition and wa~ at high risk of self harm, as demonstrated by her transfer, in August, 2005, from USMCFP Springfield to FMC Devens because the Devens' facilities were equipped to address the acute mental health needs of incarcerated individuals.
45. Upon intake at the inpatient mental health unit at FMC Devens (·n August 5, 2005, BOP psychiatrist Defendant DR. FLETCHER performed a diagnostic assessment of Ms. Adams and further confirmed that she suffers from OlD. Dr. FLETCHER also denied Ms. Adams treatment for OID, despite her multiple suicide attempts and recent attempt to self-castrate.
46. Although Defendants knew that Ms. Adams, as a person with untrea1ed OID, had heightened suicide risk and was at risk for further genital selt~mutilation, Defendants continued to deny Ms. Adams adequate medical treatmem
47. On August 15,2006, at USP Beaumont, Ms. Adams attempted to se',er her penis with a razorblade, in an attempt at self-treatment for her OID.
48. A USP Beaumont psychologist concluded that Ms. Adams' attempt II> cut off her penis was a result of her OID condition, specitically her preoccupation with getting rid of primary or secondary sexual characteristics.
49. However, the psychologist did not recommend or provide any treatment for her OID. Instead Ms. Adams was disciplined and lost visitation privileges for 60 days.
50. Although Defendants knew that Ms. Adams, as a person with untreated OlD, had a heightened suicide risk and was at risk for further genital sell~mutilation, Defendants still continued to deny Ms. Adams medical treatment for (jID.
51. In December 2006, while at the Oklahoma City Federal Transfer Center en route to USP-I Coleman, Ms. Adams again attempted suicide, this time by consuming an overdose of psychotropic medication.
52. Since 2005, Ms. Adams has made numerous requests to BOP officials at multiple levels, including the Administrator of National Inmate Appeals, as v,ell as chief psychiatrists, chief physicians, wardens, and treating psychologi sts in four different BOP facilities asking for medical treatment, including honnone treatment, for OlD, but Defendants have repeatedly denied her treatment, although Defendants knew that Ms. Adams, as a person with GID, had a heightened risk of suicide and genital self-mutilation if left untreated.
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53. In denying her treatment, Defendants rely on a BOP policy which prevents persons with GID from receiving h01ll10ne therapy if that course of treatment had not commenced prior to incarceration.
DEFENDANTS BOP, LAPPIN, AND KENDIG PROMULGATED AND ENFORCED A POLICY THAT DENIES PRISONERS WITH GENDER IDENTITY DISORDER, INCLUDING MS. ADAMS, INDIVIDUALIZED EVALUATION AND CONSTITUTIONALY ADEQUATE TREATMENT
54. BOP Program Statement P6031.0 I(30) provides that "Inmate, who have undergone treatment for gender identity disorder will be maintained only at the level of change which existed when they were incarcerated in the Bureau. Such inmates will receive thorough medical and mental health evaluations, including the review of all available outside records. The Medical Director will be consulted prior to continuing or implementing such treatment. '[be Medical Director must approve, in writing, h01ll10ne use for the maintenance of secondary sexual characteristics in writing."
55. Defendants BOP, LAPPIN, and KENDIG are responsible for the promulgation and administration of BOP Program Statement poLicies.
56. BOP Program Statement P601O.02, Health Services Administration, signed by Defendant LAPPIN on January 1S, 2005, governs the structure and ajministration of Health Services for inmates within the custody and control of the BOP.
57. BOP Program Statement P6031.01, Patient Care, signed by Defendant LAPPIN on January 15, 2005, outlines the detailed policies regarding inmak health care within the BOP, including the policy regarding GID treatment.
58. Program Statement P6010.02(5) delegates authority for the care and treatment of federal prisoners within the custody and control of the BOP to the Assistant
Director, Health Services Division (HSD). Defendant KENDIG tas been the
Assistant Director, HSD since 2006.
59. Program Statement P60IO.02(5)(a) subsection I delegates the "clinical direction and administration of all activities related to the physical and psychiatric care of inmates to the Medical Director. The Medical Director is the final health care authority for all clinical issues." Defendant KENDIG has been the Medical Director since 1999.
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60. BOP relies on Program Statement P6031.0 I(30) to deny all inmates under its care any individualized medical assessment and appropriate care and Ireatment for GlD.
61. BOP Program Statement P6031.01(30) excludes Ms. Adams from treatment for GID, without regard to her serious, individual medical needs, with')ut regard to her history of suicidality and genital self-harm, and without regard 10 the serious future suicide risk she poses.
62. Due to Defendants' ongoing deliberate indifference to her serious medical need, Ms. Adams continues to suffer severe emotional harm and remai:ls at risk for additional emotional and physical harm.
DEFENDANT DR. FLETCHER FAlLED AND REFUSED TO TREAT MS. ADAMS' GID CONDITION DESPITE HER SERIOUS MEDICAL NEEDS
63. Upon admission to FMC Devens and the inpatient mental health unit, DR. FLETCHER noted Ms. Adams' history of GID, genital self-harm, and suicidality, specifically noting her still-healing wound on her scrotum from her attempted self-castration just two weeks prior.
64. Upon admission, while DR. FLETCHER informed Ms. Adams th•., pursuant to BOP policy, she was not eligible for hormone therapy he gave her a copy of the WPATH Standards o/Care which provides for the very care Deliendants BOP and DR. FLETCHER were denying her.
65. DR. FLETCHER was responsible for Ms. Adams' mental health care while she was incarcerated at FMC Devens from August 4, 2005 through March 23, 2006. Ms. Adams was in the inpatient mental health unit until late January 2006.
66. DR. FLETCHER was aware of Ms. Adams' serious medical and mental health needs, including her diagnosis of GID and other mental health Gisorders, her ongoing desire for hormone therapy, as well as her history of suicide attempts and genital self-harm.
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67. DR. FLETCHER's initial plan for Ms. Adams included monitoring for signs of suicide and had the goal of reducing "self-injurious or other negative behavior," but did not include any plan to medically or psychologically address her OlD.
68. Thougb Ms. Adams repeatedly told DR. FLETCHER that she contmued to need medical care and treatment for her OlD and that she considered sell-castration an alternative to hormone therapy, DR. FLETCHER offered no trealment for her OlD condition.
69. Rather, during their meetings he read Ms. Adams excerpts of the BOP policy and the Standards of Care. He made it clear that Defendant BOP wou:d not initiate hormone therapy under any circumstances, and that he would not provide OIDspecific mental health treatment.
70. During her inpatient stay at FMC Devens, Ms. Adams requested e.. aluation and treatment for OlD both in \\iTiting and during psychiatric sessions no fewer than ten times. Each time, Defendant DR. FLETCHER denied appropriate medical treatment simply because Ms. Adams did not meet BOP policy criteria specifically, she had not been treated for GID prior to incarceration.
71. DR. FLETCHER repeatedly dismissed Ms. Adams' requests for trea~ment, giving her no treatment for her OlD. Instead, DR. FLETCHER deliberatel:, disregarded the seriousness of her medical condition.
72. DR. FLETCHER failed to develop any treatment plan for ongoing mental health care or medical care upon her discharge from the inpatient unit in late January 2006, even with her serious history of self·harm. her ongoing desire to access treatment for OlD, and her co-existing mental health disorders. Hc!r discharge diagnoses included GID and Oender Dysphoria, but DR. FLETCHER's report failed to provide any plan to address these conditions.
73. DR. FLETCHER remained responsible for Ms. Adams' psychiatric ore after her discharge from inpatient care, and met with Ms. Adams at least two times prior to her transfer from FMC Devens in March 2006. DR. FLETCHER continued to ignore Ms. Adams' continued requests for treatment, and he failed to develop a discharge treatment plan that once transferred to a non-medical BOP facility, would provide Ms. Adams' with ongoing mental health and medicallreatment for her serious medical condition and prevent future harm.
74. In August 2006, after her transfer to USP Beaumont, Ms. Adams attempted to cut off her penis stating to the responding psychologist that she "did not want it."
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75. Ms. Adams' attempt to sever her penis resulted in significant physical and emotional injury and distress.
76. The reviewing psychologist at USP Beaumont determined that Ms. Adams' attempt to cut off her penis was the result of her OlD condition and her desire to commence treatment for GID. The psychologist, in denying Ms. Adams treatment for GID at this time, noted and relied upon DR. FLETCHER's discharge report on Ms. Adams, and cited to DR. FLETCHER's comments that Ms. Adams was not eligible for GID treatment because of Defendant BOP's policy.
DEFENDANTS CONTINUE TO DENY MS. ADAMS TREATMENT FOR GID, IGNORING HER SERIOUS MEDICAL NEEDS, BASED ON BOP POLICY AND DEFENDANT DR. FLETCHER'S 200S REPORT DENYING HER TREATMENT
77. Ms. Adams' BOP medical, mental health, and inmate records consist{'ntly include references to DR. FLETCHER'S 2005 report diagnosing Ms. Adams with GID but denying her treatment because of BOP's policy.
78. After her transfer to USP Beaumont, Defendants repeatedly denied Ms. Adams' requests for treatment based on both Defendant BOP's policy, and the fact that FMC Devens had established the precedent of denying Ms. Adam~ appropriate medical treatment.
79. Since her transfer to USP-I Coleman, Ms. Adams has requested treatment for OlD, as well as access to mental health and other support services, ill writing, on at least five occasions.
80. Each of these requests has been formally denied for the reasons stated above and each denial references Defendant DR. FLETCHER's report from 2005 stating Ms. Adams is not a candidate for gender reassignment treatment because of BOP's policy.
81. As recently as January 20, 2009, Defendant BOP denied Ms. Adams' request for treatment for her GID, citing Defendant DR. FLETCHER's 2005 r<'!port citing BOP's policy.
82. Defendants have not evaluated Ms. Adams to ascertain her current condition and treatment needs since Defendant DR. FLETCHER's 2005 diagnostic assessment.
83. Despite her history of serious self-harm and affirmative diagnosis of GID, a serious medical condition recognized by the medical and p<),chological
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• • Case 1:09-cv-10272-JLT Document 1 Filed 02/24/09 Page 12 of 17 communities, Defendants have consistently refused to provide Ms. Adams medical care to treat her GID.

COUNT I: DEFENDANTS BOP, LAPPIN, AND KENDIG'S FAILURE AND REFUSAL TO PROVIDE CARE AND TREATMENT FOR MS. ADAMS' GlD CONDITION VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION
84. Plaintiff Adams restates and realleges paragraphs 1-83 as if fully se' forth in this Count!.
85. Defendants have been deliberately indifferent to Ms. Adams' ser'ous medical needs by failing to provide her with medical care for her GID. Defendants have not developed or implemented a treatment plan to treat her GID and they have not provided her with any medical care for GID.
80. By their policies, practices, acts and omissions, Defendants violate Ms. Adams' right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.
87. As a matter of policy and practice, Defendants have refused, and continue to refuse, to provide appropriate medical treatment to Ms. Adams wrlO has been diagnosed with a serious medical condition which has severe pnysical and emotional consequences.
88. To the extent that the failure and refusal of Defendants to provide adequate treatment rests on BOP Program Statement P6031.0 I(3), thai policy is unconstitutional on its face and as applied to Ms. Adams as set forth more fully below in Counts II and III.

COUNT II: DEFENDANTS BOP, LAPPIN, AND KENDIG'S PROMULGATION AND ENFORCEMENT OF BOP PROGRAM STATEMENT po031.OH30» VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION ON ITS FACE

89. 90.
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Plaintiff Adams restates and reaJleges paragraphs 1-83 as if fully set ;orth in this Count II.
By their policies, practices, acts and omissions, Defendants violatc' the rights of inmates with GID to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.
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91. Program statement P6031.01(30» violates the Eighth Amendment to the United States Constitution on its face.
92. As a matter of policy and practice, Defendants have refused, an·:! continue to refuse, to provide appropriate medical treatment to inmates wY J have been diagnosed with GID.
93. Defendants have long been aware of the consequences of failing to provide medically appropriate treatment for inmates with OlD by way of accepted medical literature, advocacy organizations, prisoner grievances and other means, but have failed to take reasonable corrective action.
94. Defendants LAPPIN and KENDIG are ultimately responsible, under BOP policy, tor the physical and psychiatric care of all federal prisoners within the BOP.
95. By refusing to provide appropriate medical treatment for OlD, Defendants have acted, and continue to act, with deliberate indifference to the ser.ous medical needs of, and the substantial risk of serious harm to, prisoners with G :D.
COUNT III: DEFENDANTS BOP, LAPPIN, AND KENDIG'S PROMULGATION AND ENFORCEMENT OF BOP PROGRAM STATEMENT P6031.01(30» VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS APPLIED TO
PLAINTIFF ADAMS
96. Plaintiff Adams restates and realleges paragraphs 1-83 as if fully set forth in this Count III.
97. BOP diagnosed Plaintiff with GID in 2005. At the time of her diagnosis, and at all times thereafter, Defendants were aware of the medically appropriate treatments for GID.
98. Despite this knowledge, BOP has refused, and continues to refuse. to provide Plaintiff with treatment for her OlD.
99. Plaintiff has a history of serious suicide attempts and other self-harm while in BOP custody, including serious attempts to cut off her genitalia. These attempts have been diagnosed as being related, both directly and indirectly, to her untreated OlD.
100. Defendants have applied Program Statement P6031.01(30) to Plaintiff and in so doing have refused to allow her any access to medical or psychological treatment for herGID.
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101. By their policies, practices, acts and omissions, Defendants violate the rights of Ms. Adams to be free from cruel and unusual punishment as guar:mteed by the Eighth Amendment to the United States Constitution.
102. Defendants have long been aware of the consequences of failing to provide medicaUy appropriate treatment for Ms. Adams by way of accepted medical literature, advocacy organizations, her own grievances, and other means, but have failed to take reasonable corrective action.
103. By refusing to provide Ms. Adams medical treatment for GID, Deji,mdants have acted, and continue to act, with deliberate indifference to the serious medical needs of, and the substantial risk of serious harm to, Ms. Adams.
COUNT IV: DEFENDANT DR. FLETCHER WAS DELIBERATELY INDIFFERENT TO PLAINTIFF'S SERIOUS MEDICAL NEEDS, IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CAUSING HER PHYSICAL AND EMOTIONAL INIDRY
104. Plaintiff Adams restates and realleges paragraphs 1·83 as if fully set forth in this Count IV.
105. Defendant DR. FLETCHER was deliberately indifferent to PlaintiIT's serious medical and mental health needs, subjecting her to inadequate medical and mental healthcare to the point of no care for her serious medical condition, in violation of her right to be free from cruel and unusual punishment as guarar.leed by the Eighth Amendment to the United States Constitution.
106. While under DR. FLETCHER's care, Plaintiff repeatedly requested treatment for her GID and made DR. FLETCHER aware of her serious medical and mental health needs, utilizing a variety of written and oral means of communication. DR. FLETCHER failed to address Plaintiff's concerns, failed to provide her any medical care or mental health treatment for GID, and failed to provide her with any ongoing psychiatric or other mental health treatment plan upon Iwr discharge from his care even though he was aware that her serious medical lmd mental health needs persisted.
107. DR. FLETCHER was aware of Plaintiff's diagnosis of GID, and con.;urred with it. He was aware of her history of suicide attempts. He was aware of her history of attempted self·castration as well as her belief that self·eastrati.)n was an alternative to hormone therapy as treatment for GID.
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108. As a result of Defendant DR. FLETCHER's failure to treat Plaintiff's serious medical condition or develop any ongoing psychiatric treatment plan for her, even with her known histcry of self harm, Plaintiff once again attempted to sever her male genitalia, resulting in six stitches to her penis, causing her significant physical injury and significant emotional suffering.
PAAYER FOR RELIEF
Plaintiff has suffered and ",ill continue to suffer immediate and irreparable injury as a
result of the unlawful acts, omissions, policies, and practices of the Defendants as alleged herein,
unless she is provided with medically appropriate treatment for her GID. The dedaratory and
injunctive relief sought by Plaintiff is necessary to prevent continued and further injury.
WHEREFORE, Plaintiff requests that this Court gtant the following relief:
A. Enjoin Defendants BOP, LAPPIN, and KENDIG from continuing to enforce the current BOP policy toward the treatment of incarcerated persons 'Nilh Gender Identity Disorder;
B. Enjoin Defendant BOP to provide Ms. Adams with appropriate GlD treatment by medical and mental health professionals with expertise in Gender Identity Disorder, including GlD specific psychological treatment, hormone therapy, and other medical treatments deemed appropriate by medical professionals with experience treating GID;
C. Issue a permanent injunction against Defendants BOP, LAPPIN, and KENDIG from subjecting Plaintiff to the unconstitutional and illegal policies, ac's, practices and omissions described in this Complaint;
D. Issue a judgment against Defendants BOP, LAPPIN, and KENDIG ddaring that the policies, acts, practices and omissions of these Defendants with regard to prisoners with GID are unlawful and constitute cruel and unusual pur.lshment in violation of the Eighth Amendments tc the United States Constitution;
E. Order Defendant BOP, through Defendants LAPPIN and KENDIG, to promulgate a formal policy stating that prisoners with OlD are entitled to medically appropriate treatment, including hormone therapy, "real life" exper ~nce, and transition surgery, regardless of whether or not they received GID treatment prior to incarceration;
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• • Case 1:09-cv-10272-JLT Document 1 Filed 02/24/09 Page 16 of 17 F. Order Defendants BOP, through Defendants LAPPIN and KEND1G to take all other actions necessary to provide medically appropriate treatment for prisoners with GlD;
G. Order Defendant DR. FLETCHER to pay monetary damages;
H. Order reasonable attorney fees as well as costs of suit to Plaintiffs attorneys; and
r. Grant such other and further relief as this Court considers just and proper.
Respectfully Submitted,
J<n.~:~.
Massachusetts Bar No. 562298 jlevi@gIad.org Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA 02108 617-426-1350
and
Allyson E. Kurker, Esq. Massachusetts Bar No. 665231 BINGHAM MCCUTCHEN LLP One Federal Street Boston, MA 02110 617-951-8000 allyson.kurker@bingham.com
Jody Marksamer, Esq.2 California Bar No. 229913 jmarksamer@nclrights.org Shannon Minter, Esq., sminter@nclrights.org California Bar No. 168907 National Center for Lesbian Rights 870 Market Street, Suite 3 Boston, MA 02!O8 San Francisco. CA 94102 415-392-6257
2 Attorneys Marksamer, Minter, and Capobianco have all submitted their Motions for admission to this District Pro
Hac Vice with this Complaint in accordance with Loeal Rule 83.5.3(b).
16
A/7283SSS6.2

• • Case 1:09-cv-10272-JLT Document 1 Filed 02/24/09 Page 17 of 17
and Cassandra Capobianco, Esq. Florida Bar No. 614734 ccapobianco@filsinc.org Florida Institutional Legal Services, Inc. 12921 SW Ist Road, Ste. 107, # 346 Newberry, Florida 32669 352955-2260
CERTIFICATE OF SERVICE
In accordance with Local Rule S.2(b), I, Allyson Kurker, hereby certify that this document was filed by-hand with the clerk of courts on February 24, 2009, and will then be filed through the ECF system and sent electronically to the registered participants as identified on the Notiee of Eleetronic Filing. lsi Allyson E. Kurker Allyson E. Kurker
17
"'72835556.2

 
 Case 1:09-cv-10272-JLT Document 16 Filed 07/10/09 Page 1 of 18

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

VANESSA ADAMS, legal name Nicholas Adams

)

)

)

Plaintiff,

)

)

)

v.

)

)

FEDERAL BUREAU OF PRISONS; FEDERAL

)

BUREAU OF PRISONS DIRECTOR HARLEY G. )

LAPPIN, in his official capacity; REAR ADMIRAL )

NEWTON E. KENDIG, MD, in his official capacity, , )

) Defendants

CIVIL ACTION NO. 09-10272 JLT

PLAINTIFF’S FIRST AMENDED COMPLAINT
Plaintiff Vanessa Adams, legal name Nicholas Adams (“Plaintiff” or “Ms. Adams”),1 by counsel, brings this action to obtain redress for the deprivation of her federal constitutional rights, as hereinafter alleged.
INTRODUCTION
1. Plaintiff is currently a pr isoner serving her sente nce at a f acility operated by the Federal Bureau of Prisons (“BOP”).
2. Plaintiff was diagnosed with Gender Identi ty Disorder (referred to herein as "Gender Identity Disorder" or “GID”) in 2005 by medical professionals at the United States Med ical Center for Federal Prisoners (“USMCFP” ) in Springfield, Missouri.
3. Gender Identity Disorder is a serious medical condition that requires medical care, and th at causes th e individu al with GID significant d istress in social, occupational, or other important areas of function. People with GID typically have strong cross-gender identification, m eaning a belief that one is the opposite sex, and a persiste nt anxiety and discom fort concerning their assigned sex.
1 Although Plaintiff was born a biological male, she identifies as female, goes by “Vanessa,” and intends to change her legal name to “Vanessa Adams.” Accordingly, throughout this pleading, she will be referred to by the feminine pronoun and salutation except that Plaintiff has not changed pronouns in quoted statements from BOP documents.
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4. Beginning over four (4) years ago, in approxim ately February 2005, Ms. Adams has sought treatm ent for he r GID. Despite the BOP' s diagnosis of Ms. Ada ms’ GID, and Defendants’ know ledge that Ms. Adam s has caused serious harm to herself on m ultiple occasions due to her untreated cond ition, Defendants have refused, and continue to refuse, to provide appropriate medical care to Plaintiff.
5. As a direct result of De fendants’ refusals and delib erate ind ifference to her serious GID condition, Ms. Adams has attempted to commit suicide multiple times, has attem pted to rem ove her penis or testicles with a razor on at least two occas ions, and h as ultim ately seve red her own penis. Nevertheless, Defendants continue to refuse to pr ovide necessary m edical care to Ms. Adams, including, but not lim ited to, re fusing to provide her with specific psychological treatm ent, horm one ther apy, and other m edical treatm ents deemed appropriate by m edical prof essionals with experience in the treatment of GID.
6. In support of their refusal to provide necessary m edical care for Plaintiff, BOP officials and staff have referre d to a BOP policy which prevents prisoners with Gender Identity Diso rder from receiving individu alized medical assessments and treatment for this serious medical condition.
7. Ms. Adams by this a ction challenges Defendants’ refusal to provide m edical care as an unconstitutional deprivation in violation of the Eighth Amendment of the United States Constitution.
8. Ms. Adam s challeng es the constitutiona lity of this polic y both on its face and as applied to her as a violation of the Eighth Am endment of the United States Constitution.
9. Ms. Adam s seeks declarato ry and injunc tive relief, including appropriate treatment and counseling by com petent professionals experienced in treating persons with GID, to continue throughout her incarceration.
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JURISDICTION
10. Jurisdiction of this Court is invoked pursuant to 28 U. S.C. § 1331 in that it is a civil action arising under the Constitution and laws of the United States and is prem ised upon the acts or om issions of de fendants acting under color of federal law.
11. Jurisdiction in this Cour t is prope r f or the Pla intiff’s claim f or declara tory and injunctive relief against Defendants Federal Bureau of Prisons, Director Harley G. Lappin, and Assistant Direct or Health Services Dr. Newt on E. Kendig in their official capacities pursuant to 5 U.S.C. § 702.
12. This Court is authorized to grant decl aratory and injuncti ve relief under 28 U.S.C. §§ 2201 and 2202.
13. Venue in th e Distr ict o f Massachu setts is p roper pursu ant to 28 U.S .C. § 1391(e).
14. All Defendants are ag encies, officers, or em ployees of the United States of America, or were at the time of the incidents at issue.
PARTIES
15. Plaintiff VANESSA ADAMS, at all tim es material to this action, has been a federal prisoner in the custody and cont rol of the BOP. She is currently housed at the USMCFP in Springfiel d, Missouri. She was previously housed at other BOP institutions, in cluding the Federal Medical C enter Devens in Ayer, Massachusetts.
16. Defendant BOP is the United States agency th at currently and at all tim es relevant to this Complaint, has custody and control of Plaintiff Adams.
17. Defendant, HARL EY G. LAPPIN, (“LAPPI N”), is curr ently and has been Director of the BOP at all tim es relevant to th is cla im. He is sued in his official capacity.
18. Defendant, REAR ADMIRAL NEWTON E. KENDIG, MD (“KENDIG”), is currently Assistant Director, Health Se rvices Division and Medical Director of the BOP. He has been Medical Director of the BOP since 1999, and Assistant Director, Health Services Division, since August 2006. He is responsible for the provision of health se rvices at all BOP facilities. He is sued in his official capacity.
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19. There is an actual controversy between and among the parties.
OVERVIEW OF MS. ADAMS’ PLACEMENT HISTORY WITHIN THE BOP
20. Ms. Ada ms was receiv ed by the BOP in 1999, to the Federal Correctional Institution (“FCI”) Tucson, Arizona. Since 1999, Ms. A dams has been imprisoned in at leas t seven different BOP f acilities in sev en states. She is currently serving a 248-month sentence in the B OP, with a projected release date in 2017.
21. The em otional and physical consequences of identifying as fem ale while being physiologically m ale have inte nsified severely during Ms. A dams’ incarceration within th e BOP, resulting in s everal suic ide attem pts and eventually leading to her GID dia gnosis. On Septem ber 29, 2002, at FCI Victorville, California, Ms. Adam s attempted suicide by hanging herself. On July 8, 2003, Ms. Adam s attempted suic ide by cutting he r wrists. Fo llowing this attem pt, she r emained on suic ide watch for over a month, and was ultimately transferred to the USMCFP Sp ringfield, Missouri, for a psychiatric evaluation. She was returned to F CI Tucson in February 2004. On May 9, 2004, at FCI Tucson, Ms. Ada ms admitted to planning to co mmit suicide by taking delib erate action that would lead correctional officers to shoot her (colloquially known as “death by cop”). As a result of this attem pt, Ms. Adams was sanctioned to 30 days discipli nary segregation an d transferred to the Axis II residential treatm ent program at USMCFP Springf ield to a ddress her suicidality and chronic depression.
22. As a result of BOP’s failure to treat Ms. Adam s, she made her first attempt to cut off her testicles at USMCFP Spr ingfield in July 2005. Shortly thereafter, Ms. Adams was transferred to the Federal Medical Center (“FMC”) Devens in Massachusetts for inpatient m ental health treatment. In March 2006, she was transferred to United States Peniten tiary (“USP”) Beaum ont in Texas where she was held until December 2006. Wh ile at USP Beaumont, in August 2006, Ms. Adams attempted to cut her penis off. In December 2006, she was sent to the Federal Transfer Center in Oklahom a before being transf erred on January 4, 2007 to USP-I Coleman in Florida.
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23. Because of BOP’s failure to prov ide Ms. Adams with treatm ent for her GID, Ms. Adam s successfully severed her penis in February 2009 at USP-I Coleman. Ms. Adam s was then tr ansferred to the USMCFP in Springf ield, Missouri, where she is currently incarcerated.

GID IS A SERIOUS MEDICAL CONDITION THAT REQUIRES ADEQUATE MEDICAL TREATMENT
24. As discussed more fully below, Ms. Adams was diagnosed with GID in 2005 by mental health providers employed by Defendant BOP.

25. GID is a recognized diagnosable an d treatable medical condition listed in the American Psychiatric A ssociation’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). Diagnosis is based on the following criteria: (1) a strong cross-gender identification, which is the desire to b e, or the insistence that one is, the other sex; (2) a persistent discomfort with one’s assigned sex or an inappropr iateness in the g ender ro le of that sex ; (3 ) the disturbance is not concurrent with a physical intersex condition (e.g. a person who is born with ambiguous genitali a); and (4) the disturbance causes clinically significant distress or im pairment i n soc ial, oc cupational, or ot her important areas of functioning.

26. The W orld Health Org anization also recognizes the discordance between anatomical sex and gender as a disorder in its 1990 publication, The International Class ification of Diseases (known as ICD-10), but uses the nomenclature of transsexualism.

27. The World Professional Association for Transgender Health (WPATH) is an

international professional associati on of physicians and other health care

professionals who specialize in

treating GID. WPATH pro motes

understanding and treatment of gender identity disorders. WPATH publishes

the internationally accepted Standards of Care for the Trea tment of Gender

Identity Disorders (Standards of Care).

28. The Standards of Care are guid elines for care and treatment of people with GID.

29. The goal of m edical treatments for GID according to the Standards of Care is: (1) to a lleviate the clin ically significant distress and im pairment of functioning associated with GID, and (2 ) to achieve lasting personal comfort with the gendered self in order to maximize overall psychological well-being and self-fulfillment.

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30. The Standards of Care provide th at there are three m edically app ropriate treatment options to tre at GID: (1) hormones of the desired gender; (2) the “real-life experience,” i.e. living full-time in the new gender, as a prerequisite to surgery; and (3) surgery to change the sex characteristics of the p erson suffering from GID. These treatment opt ions are frequen tly referred to as triadic therapy. Triadic therapy is recognized throughout the m edical community as the accepted and appropriate treatment for GID.
31. According to the Standards of Care and the DSM-IV-TR, people with GI D who do not receiv e appropriate m edical treatment are at risk of genital selfharm (a form of surgical self-treat ment through auto-castration or autopenectomy that can lead to serious , even life threatening, injuries), depression, anxiety, and suicide attempts.

DEFENDANTS BOP, LAPPIN, AND KENDIG PROMULGATED AND ENFORCE A POLICY THAT DENIES PRISONERS WITH GENDER IDENTITY DISORDER, INCLUDING MS. ADAMS, INDIVIDUALIZED EVALUATION AND CONSTITUTIONALY ADEQUATE TREATMENT
32. BOP Program Statem ent P6031.01(30) pr ovides that “Inm ates who have undergone treatment for gender identity disord er will be maintained on ly at the level of change which existed when they were incarcerated in the Bureau. Such inm ates will receive thorough m edical an d m ental health evaluations, including the review of a ll available outside records. The Medical Director will b e cons ulted prio r to continuin g or im plementing such trea tment. The Medical Director must approve, in writing, hormone use for the m aintenance of secondary sexual characteristics in writing.”

33. Defendants BOP, LAPPIN, and KE

NDIG are responsible for the

promulgation and administration of BOP Program Statement policies.

34. BOP Program State ment P6010.02, Health Services Adm inistration, signed by Defenda nt LAPPIN on January 15, 2005, governs the structure and administration of Health Services for inmates within the custody and control of the BOP.

35. BOP Program State ment P6031.01, Patie nt Care, signed by Defendant LAPPIN on January 15, 2005, outlin es the detailed policies regarding inmate health care within the BOP, including the policy regarding GID treatment.

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36. Program St atement P6010.02(5) delega tes authority for the care and treatment of f ederal prisoners within the cus tody and control of the BOP to the Assistant Director, Health Services Division (HSD). Defendant KENDI G has been the Assistant Director, HSD since 2006.
37. Program Statem ent P6010.02(5)(a) subsection 1 delegates the “clinical direction and adm inistration of all ac tivities related to the physical and psychiatric care of inmates to the Medical Director. The Medical Director is the final health care authority for all clinical issues.” Defendant KENDIG has been the Medical Director since 1999.
38. BOP relies on Program Statement P6031.01(30) to deny all inm ates under its care any individualized m edical asse ssment and appropriate care and treatment for GID.
39. BOP Program Statem ent P6031.01(30) ex cludes Ms. Adam s from treatment for GID, without regard to her serious , individual m edical needs, without regard to her history of suicidality a nd genital self-harm , and without regard to the s erious f uture su icide risk she poses. Due to Defendants’ ongoing deliberate indifference to her serious medical need, Ms. Adam s continues to suffer severe em otional harm and rem ains at risk for additional em otional and physical harm.
MS. ADAMS HAS REPEATEDLY COMMUNICATED TO THE DEFENDANTS THAT SHE HAS GENDER IDENTITY DISORDER AND HAS FREQUENTLY REQUESTED
APPROPRIATE MEDICAL TREATMENT
40. Ms. Adam s was born in Greenville, Illinois in 1970. Throughout her life, Ms. Adams has believed she was assigned the wrong gender.
41. As a child, Ms. Adams felt more comfortable with girls and played games in which she would dress-up as a girl.
42. As a young teen, Ms. Ada ms becam e aware of her fe male gender id entity, realized that she was a fe male insi de a m ale body and began privately presenting as female.
43. Ms. Adams was terrified of telling h er family that she felt “fem ale” because she was afraid that they would reject her.
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44. When she was 16 years old, Ms. Adam s first told som eone that sh e felt “female,” and began researching methods of transition.
45. During her late teens and twenties, Ms. Adams desperately wanted to present as a fe male publically, but she was unable to do so be cause of financial restrictions, the social obligations of her conservative church and workplace (Ms. Adams worked in infor mation management at a law firm ), and because of family pressure to act “normal”.
46. After becom ing incarcerated at age 29, Ms. Ada ms participated in therapy groups that helped her understand that the source of her self-destructive behavior is the distress and turm oil she has been experiencing her whole life because of her untreated GID.
47. During her incarceration, she has repeat edly communicated to the BOP, both verbally and through her actions, that she identifies as a fe male and has Gender Ide ntity Disord er. She ha s repe atedly m ade written and ver bal requests for treatm ent for her cond ition. Exa mples of Ms. Adam s’ communications include, but are not limited to, the following:
a. By no later than February 2005, Ms. Adams requested that the BOP place her on female hormones to assist with her transition.
b. On July 15, 2005, a BOP employee found Ms. Adams “standing in a pool of blood” because she had tried to cut her testicles off with a razor, stating, “these things [her testicles] are driving me nuts... Nobody knows what it is like to be in the wrong body. Can’t you just finish it.” Ms. Adams’ gaping wound in her scrotal sac required seven staples to repair.
c. On August 4, 2005, Dr. James Fletcher, staff psychiatrist at FMC Devens, stated that Ms. Adams, “has been very persistent and requested on numerous times through various avenues that hebe considered for gender reassignment therapy, namely estrogen... He has been disappointed to find out that the Bureau of Prisons policy is rather rigid in this regard[ ] …” and that she “was not a candidate.”
d. On November 3, 2005, Dr. Fletcher noted Ms. Adams’ “unrequited wish to engage in gender reassignment hormonal therapy.”
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e. On March 28, 2006, the BOP’s staff psychologist stated that Ms. Adams “complained of attempting to get hormone therapy for his gender transformation, but has so far been refused by the BOP.”
f. In August 2006, Ms. Adams told medical staff treating her that, “I have all these parts I don’t need,” asked them to cut her penis off for her, and requested hormone therapy.
g. On August 15, 2006, Ms. Adams attempted to sever her penis with a razorblade.
h. On September 20, 2006, Ms. Adams requested progressive hormone treatments for her gender identity disorder.
i. On or about May 23, 2007, Ms. Adams wrote to Dr. Ivan Negron, Clinical Director of FCC Coleman, noting “a pattern of no one responding to my please (sic) for hormone treatment” and again requesting hormone treatments.
j. On December 16, 2007, the warden of FCC Coleman responded to Ms. Adams’ complaint that she had not received treatment for her Gender Identity Disorder, refusing to provide her with treatment.
k. On January 20, 2009, the warden of USMCFP Springfield responded to Ms. Adams’ requests for treatment of her Gender Identity Disorder, refusing to provide her with treatment.
l. On February 8, 2009, Ms. Adams severed her penis with a razor.
DEFENDANTS HAVE BEEN AWARE OF MS. ADAMS’ GENDER IDENTITY DISORDER SINCE AT LEAST 2005 AND HAVE FAILED AND REFUSED TO
ADEQUATELY TREAT HER GID CONDITION
48. BOP knew that Ms. Adams had gender identity issues as early as May 2004.
49. Ms. Adams’ trea ting psycholog ist at USMCFP Springf ield f ormally diagnosed her with Gender Identity Di sorder in approxim ately February 2005.
50. Defendants knew Ms. Ada ms had a seri ous m edical condition and was at high risk of self harm , as dem onstrated by her medi cal fi les, request s for treatment, and actions of self-harm , but they have responded with denials of
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treatment and deliberate indifference. These reco

rds dem onstrating

Defendants’ knowledge and inadequate responses include, but are not limited

to, the following:

a. On February 8, 2005, at USMCFP Springfield, Ms. Adams attempted to hang herself in her cell. Defendant BOP did not provide Ms. Adams with treatment following this suicide attempt. Instead, in a particularly callous response, BOP charged her with Destruction of Government Property for breaking the sprinkler head that failed to support her weight during the suicide attempt, and assessed a fine of $50.00 against her.

b. In a report from an individual therapy session, dated June 28, 2005, the BOP’s staff psychologist stated that what Ms. Adams “really wants is alternatives to mutilating his genitals and ways to develop a more female appearance...”

c. In a review dated July 1, 2005, th e BOP’s staff psyc hologist stated that Ms. Adam s “som etimes thinks about cutting off his penis to m ake himself more female and to stop th e male hormones from being produced in his body.”

d. In an evaluation report dated July 15, 2005, discussing Ms. Adams’ attempted self-castration, the BOP’s staff psychologi st stated that Ms. Adam s “appears s omewhat desper ate to find a way to either get female hormones or to complete the process he attempted today. I believe he will attempt again at som e point before his sentence ends. … [H]is Gender Identity Disorder will continue and his desire to be female will not remit. Therefore, he will continue to be at risk for this type of behavior.”

e. Following Ms. Ada ms’ first attem pt at self-castration, Defendants still did not provide her treatm ent. Instead Ms. Adams was disciplined for 30 days f or “Tattoo ing or Self -Mutilation” f or attem pting to cut of f her testicles.
f. In a transfer request dated on July 20, 2005, the BOP’s staff psychologist stated that Ms. Ada ms’ “has a history of suicide attem pts while in BOP custody, largely related to his Gender Identity Disorder” and noted that, “He has sought female hormones while at this facility and been denied.”
g. On August 7, 2005, a charge nurse at FMC Devens explained to Ms. Adams that “[ hormone treatment] is not going to happen unless you

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were already on hor mones before com ing to prison.” The sa me author noted that Ms. Adams was at a “high risk for self mutilation.” h. On August 11, 2005, Dr. Fletcher stated that Ms. Adam s is “convinced, as of the last couple of year s, that he is a fem ale trapped in a man’s body.” i. On September 7, 2005, Dr. Fletch er noted that Ms. Adams was “still ruminating about how to access female hormones as an alternative to autocastration.” j. On Septem ber 8, 2005, Dr. Fletcher stated that Ms. Adam s “has some delusional ideas about what it m ight be like to be horm onally altered... He has tried to emasculate himself, or at least castrate himself, on one occasion, a feeble attem pt, but feels that he does not lik e his testicle s and wishes that we would surgically remove them if we [the BOP] won’ t give him hormones...” k. On April 15, 2006, a B OP staff psyc hologist documented that Ms. Adams attempted to sever her penis that sam e day, quoting Ms. Ada ms as saying she “had been trying to get on hormones” and asked m edical staff to “f inish the job” in ferring that she wanted the m edical staf f to completely sever he r p enis. The s taff psychologist noted that “Adam s’ self-inflicted wounds to hi s penis today appear to be a result of the coexisting diagnosis of Gender Identity Dis order. Specifically, a preoccupation with g etting rid of primary or secondary sex ual characteristics.” l. In an evaluation on August 16, 2006, the BOP’s staff psychologist noted that Ms. Adam s stated she wa s “continuing to plan on ways to amputate his penis, with a focus on how he could com plete it in light of the amount of pain he experienced when he cut himself yesterday.” m. On February 8, 2009, Ms. Adams severed her own penis.
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51. Upon intake at the inpati ent mental health unit at FMC Devens on August 5, 2005, BOP psychiatrist Dr. Jam es Fl etcher performed a diagnostic assessment of Ms. Adam s and further c onfirmed that she suffers from GID. Dr. Fletcher also denied Ms. Adam s treatment for GID, despite her m ultiple suicide atte mpts and d espite spec ifically no ting her s till-healing woun d on her scrotum from her attempted self-castration just two weeks prior.
52. Upon adm ission, while Dr. Fletcher info rmed Ms. Adam s that pursuant to BOP policy, she was not eligible for horm one therapy he gave her a copy of the W PATH Standards of Care which provide the prof essional consensus about the psychiatric, psychological, medical, and surgical m anagement of gender iden tity diso rders - and which also provide f or the very car e Defendants were and continue to deny her.
53. Dr. Fletche r inf ormed Ms. Adam s that Def endant BOP would not initia te hormone therapy for her under any circ umstances, and that he would not provide GID-specific mental health treatment.
54. Since 2005, Ms. Adams has m ade at l east 19 requests to BOP officials at multiple levels, including the Adm inistrator of National In mate Appeals, as well as chief psychiatrists, chief physicians, wardens, and treating psychologists in f our diff erent BOP f acilities as king f or m edical trea tment, including horm one treatm ent, for GID, but Defendants have repeatedly denied her treatment, although Defendants knew that Ms. Adams, as a person with GID, h ad a he ightened risk of suicide and genita l self-mutilation if left untreated.
55. During her inpatient stay at FMC De vens, Ms. Ada ms requested evaluation and trea tment f or GID both in writi ng and during psychiatric sessions no fewer than ten tim es. Each tim e, Dr. Fletcher denied appropriate m edical treatment because M s. Adam s did not m eet BOP policy criteria – specifically, she had not been treated for GID prior to incarceration.
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56. In denying her treatm ent, Defendants rely o n a BOP polic y which p revents persons with GID from receiving hormone therapy if that course of treatment had not commenced prior to incarceration.
57. Despite the BOP’s GID diagnosis and Ms. Adam s’ num erous requests for GID treatment, s tarting w ith requests to be p laced on fem ale hor mones in February 2005, the BOP has refused to provide m edical treatment. This denial exacerbated Ms. Adam s’ GID condition and caused her overall health to further deteriorate.
58. Although Defendants knew that persons w ith untreated GID have heightened suicide risk and risk of further gen ital self-m utilation, and that Ms. Adams had a history of suicide attem pts, Defendants denied Ms. Ada ms ade quate medical care to treat her condition.
DEFENDANTS CONTINUE TO DENY MS. ADAMS TREATMENT FOR GID, IGNORING HER SERIOUS MEDICAL NEEDS, BASED ON BOP POLICY
59. Ms. Adam s’ BOP m edical, m ental health , and inm ate reco rds cons istently include references to Dr . Fletcher’s 2005 report di agnosing Ms. Adam s with GID but denying her treatment because of BOP’s policy.
60. After her transfer to USP Beaum ont, Defendants repeatedly denied Ms. Adams’ requests for treatm ent based on both Defendant BOP’s policy, and the fact that FMC Devens had esta blished the precedent of denying Ms. Adams appropriate medical treatment.
61. While at USP-I Coleman, Ms. Adams requested treatment for GID, as well as access to mental health and other support services, in writing, on at least five occasions.
62. Each of these requests w as formally denied for the reasons stated above and each denial references Dr. Fletcher’s report from 2005 stating Ms. Adam s is not a candidate for gender reassignment treatment because of BOP’s policy.
63. As recently as January 20, 2009, Defendant BOP denied Ms. Adams’ request for treatment for her GID, citing Dr. Fletcher’s 2005 report citing the BOP’s policy.
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64. On infor mation and belief, Defendants have not evaluated Ms. Ada ms to ascertain her current co ndition and treatment needs relating to her GID s ince Dr. Fletcher’s 2005 diagnostic report.
65. Despite her history of seri ous self-harm and affirm ative diagnosis of GID, a serious m edical condition recognized by the m edical and psychological communities, Defendants have consistently refused to provide - and continue to refuse to provide - Ms. Adams medical care to treat her GID.
66. Even after Ms. Adam s’ attempts at se lf-castration and succesful am putation of her penis, Defendants continue to refuse to tre at h er for her GID symptoms, including failing to provide her with female hormones.
67. She is currently hous ed at USMCP Spri ngfield, an institution where officials are openly hostile to her because of her gender identity.
68. As a result of Defendants’ indiffere nce, Ms. Ada ms continues to suffer emotionally and physically because of her Gender Identity Disorder.
COUNT I: DEFENDANTS BOP, LAPPIN, AND KENDIG’S FAILURE AND REFUSAL TO PROVIDE CARE AND TREATMENT FOR MS. ADAMS’ GID CONDITION VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION
69. Plaintiff Adams restates and realleg es paragraphs 1-68 as if fully set forth in this Count I.
70. Defendants have been deliberately indi fferent to Ms. Ada ms serious medical needs by failing to provide her with m edical care for her GID. Defenda nts have not developed or imple mented a treatment plan to tre at her GID and they have not provided her with any medical care for GID.
71. By their po licies, practices, acts a nd om issions, Defendants violate Ms. Adams right to be free from cruel a nd unusual punishm ent as guaranteed by the Eighth Amendment to the United States Constitution.
72. As a matter of policy and practice, Defendants have refused, and continue to refuse, to provide appropriate medical treatment to Ms. Adams who has been diagnosed with a serio us m edical c ondition w hich has severe physical and emotional consequences.
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73. To the exte nt that the f ailure and r efusal of Defendants to provide adequate treatment rests on BOP Program Statem ent P6031.01(3), that policy is unconstitutional on its face and as applie d to Ms. Adam s as set forth more fully below in Counts II and III.
COUNT II: DEFENDANTS BOP, LAPPIN, AND KENDIG’S PROMULGATION AND ENFORCEMENT OF BOP PROGRAM STATEMENT P6031.01(30)) VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION ON ITS FACE
74. Plaintiff Adams restates and realleg es paragraphs 1-68 as if fully set forth in this Count II.
75. By their policies, practices, acts and omissions, Defendants violate the rights of inm ates with GID to be free fr om cruel and unusual punishm ent as guaranteed by the Eighth Amendment to the United States Constitution.
76. As a matter of policy and practice, Defendants have refused, and continue to refuse, to provide appropriate m edical treatm ent to inm ates who have been diagnosed with GID.
77. Defendants have long b een aware o f the consequences of failing to pro vide medically appropriate treatm ent for inmates with GID by way of accepted medical lite rature, advo cacy organ izations, pris oner grieva nces and o ther means, but have failed to take reasonable corrective action.
78. Defendants LAPPIN and KENDIG are ultimately respons ible, under BOP policy, for the physical and psychiatric care of all federal prisoners within the BOP.
79. By refusing to provide appropriate m edical treatm ent for GID, Defendants have acted, and continue to act, with deliberate indifference to the seriou s medical needs of, and the substantial risk of serious harm to, prisoners with GID.
COUNT III: DEFENDANTS BOP, LAPPIN, AND KENDIG’S PROMULGATION AND ENFORCEMENT OF BOP PROGRAM STATEMENT P6031.01(30)) VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS APPLIED TO
PLAINTIFF ADAMS
15

Case 1:09-cv-10272-JLT Document 16 Filed 07/10/09 Page 16 of 18
80. Plaintiff Adams restates and realleg es paragraphs 1-68 as if fully set forth in this Count III.
81. BOP diagnosed Plaintiff with GID in 2005. At the time of her diagnosis, and at all tim es thereafter, Defendants were aware of the m edically approp riate treatments for GID.
82. Despite this knowledge, BOP has refused, and continues to refuse, to provide Plaintiff with treatment for her GID.
83. Plaintiff has a history of serious suicide attempts and other self-harm while in BOP custody, including serious attem pts to cut off her ge nitalia. These attempts have been diagnosed as being related, both directly and indirectly, to her untreated GID.
84. Defendants have applied Program Statement P6031.01(30) to Plaintiff, and in so doing have refused to allow her any access to m edical or psycholo gical treatment for her GID.
85. By their policies, practices, acts and omissions, Defendants violate the rights of Ms. Adams to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.
86. Defendants have long b een aware o f the consequences of failing to pro vide medically appropriate treatm ent for Ms. Adams by way of accepted m edical literature, advocacy organizations, her own griev ances, and o ther means, but have failed to take reasonable corrective action.
87. By refusing to provide Ms. Adam s m edical treatm ent for GID, Defendants have acted, and continue to act, with deliberate indifference to the seriou s medical needs of, and the substantial risk of serious harm to, Ms. Adams.
PRAYER FOR RELIEF Plaintiff has suf fered and will continue to suf fer imm ediate and irrepa rable inju ry as a result of the unlawful acts, omissions, policies, and practices of the Defendants as alleged herein, unless she is provided with m edically appropriate treatm ent for her GID. The declaratory and injunctive relief sought by Plaintiff is necessary to prevent continued and further injury.
WHEREFORE, Plaintiff requests that this Court grant the following relief:
16

Case 1:09-cv-10272-JLT Document 16 Filed 07/10/09 Page 17 of 18
A. Enjoin Defendants BOP, LAPPIN, and KE NDIG from continuing to enforce the current BOP policy to ward the tr eatment of incarcerated persons with Gender Identity Disorder;
B. Enjoin Defendant BOP to provide Ms. Ada ms with appropriate GID treatment by medical and m ental health professionals with expertise in Gender Identity Disorder, including GID speci fic psychological treatm ent, hormone therapy, and other m edical treatm ents deem ed appr opriate by m edical pr ofessionals with experience in the treatment of GID;
C. Issue a perm anent injunction again st Defendants BOP, L APPIN, and KENDIG from subjecting Plaintiff to the unconstitutional and illegal policies, acts, practices and omissions described in this Complaint;
D. Issue a judgment against Defendants BO P, LAPPIN, and KENDIG declaring that the policies, acts, practices and omissions of these Defendants with regard to prisoners with GID are unlawful and cons titute cruel and un usual punishment in violation of the Eighth Amendments to the United States Constitution;
E. Order Defendant BOP, through Defendants LAPPIN and KENDIG, to promulgate a for mal policy stating that prisoners w ith GID shall have access to medically appropriate treatm ent, including horm one therapy, “real life” experience, and transition surgery, regardless of whether or not they received GID treatment prior to incarceration;
F. Order Defendants BOP, through D efendants L APPIN and KENDIG to take all other actions necessary to provide m edically appropriate treatm ent for prisoners with GID;
G. Order reasonable attorney fees as well as costs of suit to Plaintiff’s attorneys; and
H. Grant such other and further relief as this Court considers just and proper.
Respectfully Submitted,
s/ Jennifer Levi
Jennifer Levi, Esq. Massachusetts Bar No. 562298 Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA 02108
and
17

Case 1:09-cv-10272-JLT Document 16 Filed 07/10/09 Page 18 of 18
Jody Marksamer, Esq. California Bar No. 229913 Shannon Minter, Esq., California Bar No. 168907 National Center for Lesbian Rights 870 Market Street, Suite 3 Boston, MA 02108 San Francisco, CA 94102 and Cassandra Capobianco, Esq. Florida Bar No. 614734 Florida Institutional Legal Services, Inc. 12921 SW 1st Road, Ste. 107, # 346 Newberry, Florida 32669
CERTIFICATE OF SERVICE In accordance with Local Rule 5.2(b), I, Jennifer Levi, hereby certify that this document filed through the ECF system on July 10, 2009 will be sent electronically to the registered participants as identified on the Notice of Electronic Filing. /s/ Jennifer Levi Jennifer Levi, Esq.
18

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

VANESSA ADAMS, legal name, Nicholas Adams,
Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

* * * * * * Civil Action No. 09-10272-JLT * * * * *

MEMORANDUM

June 7, 2010

TAURO, J.

I. Introduction

Plaintiff, an inmate in the custody of the Federal Bureau of Prisons, asserts that

Defendants have subjected her1 to cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution by denying her appropriate medical treatment for

her diagnosed condition of Gender Identity Disorder. Presently at issue is Defendants’ Motion to

Dismiss the Amended Complaint [#20]. For the following reasons, Defendants’ Motion to

Dismiss the Amended Complaint [#20] is DENIED.

II. Background2

1Though Plaintiff is biologically a male, this court refers to Plaintiff using female pronouns out of deference to her self-identification as such.
2Where Defendants challenge the existence of the Court’s subject matter jurisdiction on mootness grounds, the court will construe the allegations of the Complaint in Plaintiff’s favor, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), but may also look beyond the pleadings, to
1

Plaintiff came into the custody of the Federal Bureau of Prisons (“BOP”) in 1999 at age 29. Though Plaintiff is biologically a male, she has self-identified as a female throughout her adult life. Because of this, she wanted to initiate the gender transition process prior to her incarceration, but found herself unable to do so in the face of the restrictions imposed on her by a conservative family and workplace.
BOP formally diagnosed Plaintiff with Gender Identity Disorder (“GID”) in February 2005. GID is a readily diagnosable and treatable mental illness with an established course of treatment, consisting primarily of three components. T his course of treatment is commonly referred to as “triadic therapy” and includes: (1) hormones of the desired gender; (2) the “real-life experience,” i.e. living full-time in the new gender, and (3) surgery to change the sex characteristics of the person suffering from GID. Individuals suffering from GID who do not receive appropriate medical treatment are at risk of serious harm including depression, anxiety, self-mutilation and suicide.
After her 2005 diagnosis, Plaintiff requested that BOP treat her with female hormones in order to assist her in her transition from male to female, but BOP denied her request. As a result, on February 8, 2005, Plaintiff attempted to hang herself in her cell at USMCFP Springfield. Thereafter, BOP’s staff psychologist observed that what Plaintiff “really wants is alternatives to mutilating [her] genitals and ways to develop a more female appearance...,”3 and that Plaintiff
affidavits and depositions, in order to determine whether it may properly hear Plaintiff’s claims. NEGB, LLC v. Weinstein Co. Holdings, 490 F. Supp. 2d 89, 92 (D. Mass. 2007). This court presents the relevant facts as they are alleged in the Amended Complaint, except where specifically noted otherwise.
3Amended Compl. ¶ 50. 2

“sometimes thinks about cutting off [her] penis to make [herself] more female and to stop the male hormones from being produced in [her] body.”4 Despite this warning from the staff psychologist that Plaintiff presented a real risk of self-mutilation, BOP did not provide her with treatment for her GID. And two weeks later, Plaintiff did in fact try to cut her testicles off using a razor. Plaintiff’s wound required seven staples to repair.
In discussing this attempt at self-castration, the BOP staff psychologist stated that Plaintiff “appears somewhat desperate to find a way to either get female hormones or to complete the process [she] attempted today. I believe [she] will attempt again at some point before [her] sentence ends. … [Her] Gender Identity Disorder will continue and [her] desire to be female will not remit. Therefore, [she] will continue to be at risk for this type of behavior.”5 BOP, however, still did not provide Plaintiff with treatment. Rather, BOP punished Plaintiff for violating the prison’s prohibition against “self-mutilation.”
On July 20, 2005, BOP’s staff psychologist submitted a request to transfer Plaintiff from Springfield to FMC Devens in Massachusetts, based on her history of suicide attempts and selfmutilation stemming from BOP’s ongoing refusal to treat her GID. Upon intake at the inpatient mental health unit at Devens, BOP psychiatrist Dr. James Fletcher performed a diagnostic assessment of Plaintiff, which confirmed that she suffers from GID. But Dr. Fletcher informed Plaintiff that BOP would not provide treatment because, pursuant to BOP policy, only those inmates who received hormone therapy prior to incarceration were eligible to receive hormones
4Id. 5Id.
3

while incarcerated.6 Dr. Fletcher stated that Plaintiff “has been very persistent and requested on numerous times through various avenues that [she] be considered for gender reassignment therapy, namely estrogen... [She] has been disappointed to find out that the Bureau of Prisons policy is rather rigid in this regard[ ] …”7 and that she “was not a candidate.”8 A charge nurse at FMC Devens echoed this position, explaining that “[hormone treatment] is not going to happen unless you were already on hormones before coming to prison.”9
While at Devens, Plaintiff requested evaluation and treatment for GID both in writing and during psychiatric sessions no fewer than ten times. Each time, BOP denied her treatment because she did not meet BOP policy criteria. Specifically, they consistently declared her ineligible for hormone treatment during incarceration because she had not been treated with hormones prior to incarceration.
BOP transferred Plaintiff to USP Beaumont in Texas in March 2006. In August 2006, Plaintiff asked the Beaumont medical staff to cut her penis off for her and requested hormone therapy. Medical staff refused this request and Plaintiff again attempted to sever her penis on August 15, 2006. Subsequently, the BOP psychologist noted that Plaintiff was “continuing to
6Policy Statement 6031.01 states, “Inmates who have undergone treatment for gender identity disorder will be maintained only at the level of change which existed when they were incarcerated in the Bureau. Such inmates will receive thorough medical and mental health evaluations, including the review of all available outside records. The Medical Director will be consulted prior to continuing or implementing such treatment. The Medical Director must approve, in writing, hormone use for the maintenance of secondary sexual characteristics in writing.” Aff. of Patrick C. Gariety, ¶ 4.
7Amended Compl. ¶ 47. 8Id. 9Id. at ¶ 50.
4

plan on ways to amputate h[er] penis….”10 In 2007, Plaintiff was transferred to FCC Coleman in Florida. On June 27, 2007, the
warden denied Plaintiff’s request for treatment based on Dr. Fletcher’s determination that she was not a candidate for treatment because she had not received hormones prior to incarceration.11 Plaintiff’s appeal of this decision was denied by the Regional Director for the Southeast Regional Office based on the same BOP policy, which prevented inmates from receiving hormone treatment while incarcerated unless they received hormones prior to incarceration.12 Plaintiff also appealed this denial. And on December 13, 2007, the Administrator for National Inmate Appeals again denied Plaintiff’s request for treatment, concluding that “the Agency will not initiate medical or surgical intervention” for a GID diagnosis.13
On January 20, 2009, just days before the initiation of this action, BOP again denied Plaintiff’s request for treatment. And three weeks later, Plaintiff finally succeeded in severing her penis with a razor. D espite Plaintiff’s self-mutilation and the pendency of this litigation, BOP still provided Plaintiff with no treatment for GID for the next six months.
Plaintiff was transferred to USMCFP Springfield in Missouri in March 2009, where she again requested hormone treatment. On August 14, 2009, Plaintiff filed, and this court allowed, an emergency motion seeking an order allowing Plaintiff’s outside expert, Dr. Randi Ettner, to
10Id. 11Decl. of Cheryl Magnusson, Ex. B, FCC Coleman, BP-9 Response, Case Number: 455962-F1. 12Id., Ex. D, Regional Administrative Remedy Appeal No. 455962-R2, Part B-Response. 13Id., Ex. E, Administrative Remedy Number 455962-A1, Part B-Response.
5

perform an psychological evaluation of her. B OP finally initiated hormone treatment for Plaintiff on the very same day.
Based on the foregoing facts, Plaintiff’s Amended Complaint alleges that BOP has acted with deliberate indifference in violation of the Eighth Amendment by refusing to adequately treat her GID. Plaintiff additionally asserts that the policy upon which BOP consistently relied in denying treatment is unconstitutional on its face and as applied to her. III. Discussion
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Defendants contend that this court is without subject matter jurisdiction to hear the current action because, by voluntarily providing hormone therapy to Plaintiff as of August 14, 2009, Defendants have rendered her claims moot. This court disagrees. Pursuant to Article III of the United States Constitution, federal courts have the power to “adjudicate only actual, ongoing cases or controversies.”14 T his constitutional limitation on the jurisdiction of the federal courts is expressed, at the outset of a case, through the requirement that Plaintiff have standing to commence the litigation. Thus, “[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.”15 The injury must be both “concrete and particularized,” as well as “actual or imminent, not conjectural or hypothetical.”16
14Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). 15Id. 16Katin v. National Real Estate Info. Services, Inc., 2009 WL 929554, * 3 (D. Mass. 2009)
6

The “case-or-controversy requirement subsists through all stages of federal judicial proceedings,”17 however, and the “requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”18 So even where the Plaintiff initially presents a viable claim, “a federal court is duty bound to dismiss [her] claim as moot if subsequent events unfold in a manner that undermines any one of the three pillars on which constitutional standing rests: injury in fact, causation, and redressability.”19
Nonetheless, “[i]t is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts would be compelled to leave the defendant . . . free to return to his old ways.”20 Accordingly, the standard set forth by the Supreme Court for “determining whether a case has been mooted by the defendant's voluntary conduct is stringent.... [A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”21 Importantly, a statement by Defendants that the challenged conduct will not recur, standing alone, cannot
17Ramirez v. Sanchez Ramos, 438 F.3d 92, 100 (1st Cir. 2006) (“Article III considerations require that an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed.”) (internal quotation and citation omitted).
18Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotations omitted).
19Ramirez, 438 F.3d at 100. 20Friends of the Earth, 528 U.S. at 189. 21Id. (citing United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)) (emphasis added).
7

suffice to satisfy this heavy burden of persuasion.22 And, certainly, “where a defendant is unwilling to give any assurance that the conduct will not be repeated, a natural suspicion is provoked that recurrence may well be a realistic possibility.”23
The “need for protection against continued self-mutilation [because of Gender Identity Disorder] constitutes a serious medical need to which prison officials may not be deliberately indifferent.”24 Plaintiff consistently requested hormone therapy beginning in 2005 when she received a diagnosis of GID from BOP medical staff. Defendants, however, steadfastly denied Plaintiff hormone therapy over the course of more than four years, even in the face Plaintiff’s attempted and successful self-castration. They provided treatment to her only after she had commenced this lawsuit and filed an emergency motion seeking medical evaluation by an outside expert. In fact, the day that Defendants made hormone therapy available to Plaintiff was the very same day that this court allowed Plaintiff’s emergency motion. Yet, Defendants now ask this court to dismiss this action as moot based on the fact that they have voluntarily ceased the deprivation of medical treatment challenged in Plaintiff’s Complaint.
Notably, Defendants do not argue that the challenged deprivation of hormone therapy is not reasonably likely to recur, but instead state only that “Plaintiff’s medical and psychological
22See Concentrated Phosphate Export Assn., 393 U.S. at 203. 23Adams v. Bowater, Inc., 313 F.3d 611, 615 (1st Cir. 2002). 24De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); see also Kosilek v. Maloney, 221 F.Supp.2d 156, 184 (D. Mass 2002) (finding that gender identity disorder constitutes a serious medical need necessary to implicate the protections of the Eighth Amendment where the Plaintiff had engaged in self-mutilation).
8

progress will continue to be monitored on a regular basis,”25 in accordance with the Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders.
Moreover, Defendants have not disavowed the policy they relied on for four years in support of their claim that Plaintiff was ineligible for hormone therapy because she was not receiving it at the time of her incarceration. Indeed, Defendants defend the policy and, for the purposes of litigation, take the position that the policy does allow the Medical Director to implement hormone treatment to those inmates who have not undergone such treatment prior to incarceration. Defendants take this position notwithstanding the fact that they found Plaintiff to be ineligible to receive hormones precisely because, prior to this lawsuit, they consistently interpreted this policy to prohibit inmates, who had not received hormone treatment before incarceration, from receiving hormone therapy while incarcerated.26 And where, as here, Defendants continue to vigorously defend the policy that they relied on in denying treatment in the first place, “recurrence [of the challenged conduct] is certainly more than a theoretical possibility.”27
On such a record, this court cannot conclude that Defendants have satisfied “the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not
25Aff. of Patrick C. Gariety, ¶ 9. 26See Decl. of Cheryl Magnusson, Ex. D, Regional Administrative Remedy Appeal No. 455962-R2, Response. 27Adams, 313 F.3d at 615.
9

reasonably be expected to recur.”28 I f this court were to dismiss Plaintiff’s claims at this juncture, based on nothing more than Defendants voluntary cessation of the challenged conduct, without even so much as an assurance from Defendants that the challenged conduct will not recur, it would “leave the defendant[s] . . . free to return to [their] old ways.”29 And contrary to Defendants’ assertions, mootness doctrine does not condone, much less mandate, such an outcome.
B. Motion to Dismiss or Transfer Based on Improper Venue Defendants next argue that this court is not a proper venue in which to hear Plaintiff’s lawsuit and, therefore, they seek dismissal pursuant to Fed. R. Civ. P. 12(b)(3). The applicable venue provision provides that, in a civil action against an employee or agency of the United States, venue is proper in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or (3) the plaintiff resides, if no real property is involved in the action.30 Because neither Plaintiff nor Defendants reside in Massachusetts, venue is only proper in this district if Plaintiff can demonstrate that a substantial part of the events giving rise to Plaintiff’s claims took place here. In order to determine whether Massachusetts is a judicial district in which a substantial part of the events occurred, this court must look “not to a single ‘triggering event’ prompting the
28Id. (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)).
29Friends of the Earth, 528 U.S. at 189. 3028 U.S.C. § 1391(e).
10

action, but to the entire sequence of events underlying the claim.”31 In so doing, the court does “not focus on the actions of one party. Rather, [the court’s] approach takes ‘a holistic view of the acts underlying a claim.’”32
Where the events giving rise to a claim have taken place in multiple locations, as is the case here, venue may be proper in more than one district. Under such circumstances, the court is “not required to determine the best venue, merely a proper one.”33 In other words, the question before this court is whether the district that Plaintiff chose had a substantial connection to the claim, even though other forums may have had a greater connection.34 A nd importantly, when more than one proper venue exists, “there is a strong presumption in favor of the plaintiff’s choice of forum.”35
In support of their contention that Massachusetts is an improper venue, Defendants state that the “only nexus linking [Plaintiff’s] claims to this judicial district is the fact that [Plaintiff] was incarcerated at FMC-Devens for eight months ending in March 2006, and that she was denied hormone therapy during that time. Since then, however, [Plaintiff] has been incarcerated in several federal penitentiaries, and personnel at FMC Devens have had little or no input on her
31Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st Cir. 2009) (quoting Uffner v. La Reunion Francaise, S.A. 244 F.3d 38, 42 (1st Cir. 2001)).
32Id. (quoting Uffner, 244 F.3d at 43 n.6). 33Id. (internal citation omitted). 34Setco Enters., Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir. 1993). 35Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000).
11

medical treatment.”36 In essence, Defendants appear to argue that, though Massachusetts has a connection to this action, other judicial districts have more substantial connections. But as this court noted above, the relevant question is not whether another district may have had a more substantial connection to the claims, but whether a substantial part of the events giving rise to the claims occurred in this district. And Defendants cannot minimize the import of this action’s connections to Massachusetts, simply by pointing out that other events, perhaps more substantial, have since occurred in different districts.
Plaintiff alleges that the following events demonstrate a connection between her claims and this district: BOP transferred Plaintiff to FMC Devens in Massachusetts because she had a history of suicide and self-mutilation attempts that stemmed from her untreated GID; BOP officials at FMC Devens denied her hormone therapy on multiple occasions while she was incarcerated there; FMC Devens’ psychiatrist, Dr. Fletcher, issued a report declaring Plaintiff ineligible for hormone therapy during incarceration because she had not received hormone treatment prior to incarceration; and other BOP officials have since cited Dr. Fletcher’s report as a basis for a number of subsequent denials of hormone treatment.
In light of the foregoing, this court is convinced that the events alleged to have occurred in Massachusetts, together, constitute a substantial and consequential portion of the factual predicate giving rise to Plaintiff’s claims. And the fact that there may be other judicial districts with greater connections to this action cannot suffice to overcome the strong presumption in favor of maintaining this lawsuit in Plaintiff’s original choice of forum. Accordingly, this court must conclude that venue in this judicial district is proper.
36Def.’s Mem. Supp. Mot. Dismiss, 8. 12

As an alternative to dismissal, Defendants seek a transfer of venue, pursuant to 28 U.S.C. § 1406, to the Western District of Missouri. When a plaintiff has filed an action in an improper venue, 28 U.S.C. § 1406 permits the district court to dismiss the action or, in the interest of justice, to transfer the action to a proper venue, so that it may proceed. Because this court has found that Plaintiff properly laid venue in Massachusetts, there is no basis upon which to effect a transfer of this action to another judicial district under § 1406.37 IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss the Amended Complaint [#20] is DENIED. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge
37This court surmises from the two cases Defendants cite in support of their Motion to Transfer that they may actually be attempting to ask for a discretionary transfer from one proper venue to another, pursuant to 28 U.S.C. § 1404, based on the convenience of the parties and witnesses. At the outset, it is worth noting that this court doubts whether such a discretionary transfer would be warranted, given that (1) a substantial portion of the events giving rise to this action occurred in Massachusetts and (2) there is no reason to believe that Plaintiff will continue to be incarcerated in Missouri, as she has been transferred at least four times in the past five years. Nonetheless, Defendants have not moved for such a discretionary transfer and, therefore, that issue is not properly before this court.
13

 
 Case 1:09-cv-10272-JLT Document 53 Filed 09/29/11 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________________

)

VANESSA ADAMS, legal name,

)

Nicholas Adams,

)

)

Plaintiff,

)

)

v.

)

CIVIL ACTION

)

NO. 09-10272 JLT

FEDERAL BUREAU OF PRISONS; FEDERAL )

BUREAU OF PRISONS DIRECTOR HARLEY G. )

LAPPIN, in his official capacity; REAR ADMIRAL )

NEWTON E. KENDIG, MD, in his official capacity, )

)

Defendants.

)

____________________________________________)

STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE

Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, and in accordance with

the terms of the May 13, 2011 Settlement Agreement between Plaintiff Vanessa Adams and the

Federal Bureau of Prisons (BOP), (attached hereto as Exhibit 1), the parties hereby stipulate

through their undersigned counsel, to the entry of an order dismissing with prejudice all claims

that were stated or that could have been stated in the her Complaint against the BOP.

Respectfully submitted,

VANESSA ADAMS, legal name, Nicholas Adams,

By her attorneys,

/s/ Cassandra Capobianco Cassandra Capobianco, Florida Bar #614734 Admitted pro hac vice ccapobianco@filsinc.org Florida Institutional Legal Services, Inc. 14260 SW Newberry Road, #412 Newberry, FL 32669 352-375-2494

1

Case 1:09-cv-10272-JLT Document 53 Filed 09/29/11 Page 2 of 2

Dated: September 29, 2011

Jennifer Levi, BBO #562298 jlevi@glad.org Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA 02108 617.426.1350
Diane Hertz, New York Bar #2343176 Bingham McCutchen, LLP 399 Park Avenue New York, NY 10022-4689 212-705-7821
Allyson Kurker, BBO #665231 Kurker Law Group LLC 427 Elm Street Concord, MA 01742 978-254-5487
Jody Marksamer, California Bar #229913 Admitted pro hac vice jmarksamer@nclrights.org Shannon Minter, California Bar #168907 Admitted pro hac vice sminter@nclrights.org Christopher Stoll Admitted pro hac vice National Center for Lesbian Rights 870 Market Street, Suite 3 San Francisco, CA 94102
FEDERAL BUREAU OF PRISONS
By its attorneys,
CARMEN M. ORTIZ United States Attorney
By: /s/ James J. Fauci JAMES J. FAUCI Assistant U.S. Attorney U.S. Attorney’s Office John Joseph Moakley U.S. Courthouse One Courthouse Way, Suite 9200 Boston, MA 02210 jeff.fauci@usdoj.gov (617) 748-3289
2

 
 Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 1 of 8
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:09−cv−10272−JLT

CLOSED

Adams v. Federal Bureau of Prisons et al Assigned to: Judge Joseph L. Tauro Cause: 28:1983 Civil Rights
Plaintiff Vanessa Adams also known as Nicholas Adams

Date Filed: 02/24/2009 Date Terminated: 10/03/2011 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: U.S. Government Defendant
represented by Allyson E. Kurker Kurker Law Group LLC 427 Elm Street Concord, MA 01742 978−254−5487 Email: allyson@kurkerlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Levi Gay &Lesbian Advocates &Defenders Suite 800 30 Winter Street Boston, MA 02108 617−426−−1350 Email: jlevi@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco Florida Institutional Legal Services 14260 W. Newberry Rd. − #412 Newberry, FL 32669 352−375−2494 Email: ccapobianco@filsinc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher F. Stoll National Center for Lesbian Rights Suite 370 870 Market Street San Francisco, CA 94102 415−392−6257 x 320 Email: cstoll@nclrights.org ATTORNEY TO BE NOTICED
Diane Hertz Bingham McCutche, LLP 399 Park Avenue New York, NY 10022−4689 212−705−7821 PRO HAC VICE ATTORNEY TO BE NOTICED
Jody Marksamer National Center for Lesbian Rights Suite 370 870 Market Street San Francisco, CA 94102 415−392−6257

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 2 of 8
Email: jmarksamer@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Minter National Center for Lesbian Rights Suite 370 870 Market Street San Francisco, CA 94102 415−392−6257 Email: sminter@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Federal Bureau of Prisons
Defendant Harley G. Lapin Director, Federal Bureau of Prisons
Defendant M.D. Newton E Kendig Rear Admiral
Defendant James Fletcher, M.D. Psychiatrist, FMC Devens, in his individual capacity
Mediator Kenneth P. Neiman TERMINATED: 04/20/2011

represented by James J. Fauci Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6000 Fax: 617−526−5000 Email: james.fauci@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Fauci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Fauci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Fauci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/24/2009
02/24/2009

# Docket Text
1 COMPLAINT against Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD, filed by Nicholas Adams. (Attachments: # 1 Civil Cover Sheet and Category Sheets)(Boyce, Kathy) (Entered: 02/24/2009)
ELECTRONIC NOTICE of Case Assignment. Judge Joseph L. Tauro assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Dein (Boyce, Kathy) (Entered: 02/24/2009)

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 3 of 8

02/24/2009
02/24/2009 02/24/2009 02/24/2009 02/24/2009 02/25/2009 02/25/2009 02/25/2009 02/25/2009
02/25/2009
03/02/2009 03/03/2009 03/03/2009
03/11/2009 03/19/2009 04/09/2009

2 Summons Issued as to Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD, U.S. Attorney and U.S. Attorney General Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Boyce, Kathy) (Entered: 02/24/2009)
3 NOTICE of Appearance by Allyson E. Kurker on behalf of Nicholas Adams (Kurker, Allyson) (Entered: 02/24/2009)
4 MOTION for Leave to Appear Pro Hac Vice for admission of Jody Marksamer by Nicholas Adams. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kurker, Allyson) (Entered: 02/24/2009)
5 MOTION for Leave to Appear Pro Hac Vice for admission of Cassandra Capobianco by Nicholas Adams. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kurker, Allyson) (Entered: 02/24/2009)
6 MOTION for Leave to Appear Pro Hac Vice for admission of Shannon Minter by Nicholas Adams. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kurker, Allyson) (Entered: 02/24/2009)
Filing fee/payment: $ 350.00, receipt number BST009026 for 1 Complaint (Russo, Patricia) (Entered: 02/25/2009)
Filing fee/payment: $ 50.00, receipt number BST009040 for 6 MOTION for Leave to Appear Pro Hac Vice for admission of Shannon Minter (Russo, Patricia) (Entered: 02/25/2009)
Filing fee/payment: $ 50.00, receipt number BST009041 for 4 MOTION for Leave to Appear Pro Hac Vice for admission of Jody Marksamer (Russo, Patricia) (Entered: 02/25/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 4 Motion for Leave to Appear Pro Hac Vice; Added Jody Marksamer for Vanessa Adams. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Forms and then scroll down to CM/ECF Forms. (Abaid, Kimberly) (Entered: 02/25/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 6 Motion for Leave to Appear Pro Hac Vice; Added Shannon Minter for Vanessa Adams. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Forms and then scroll down to CM/ECF Forms. (Abaid, Kimberly) (Entered: 02/25/2009)
7 NOTICE of Appearance by Jennifer L. Levi on behalf of Vanessa Adams (Levi, Jennifer) (Entered: 03/02/2009)
Filing fee/payment: $ 50.00, receipt number BST009220 for 5 MOTION for Leave to Appear Pro Hac Vice for admission of Cassandra Capobianco (Russo, Patricia) (Entered: 03/03/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 5 Motion for Leave to Appear Pro Hac Vice; Added Cassandra Capobianco for Vanessa Adams. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Abaid, Kimberly) (Entered: 03/03/2009)
8 AFFIDAVIT OF SERVICE Executed by Vanessa Adams. James Fletcher, MD served on 2/28/2009, answer due 3/20/2009. Acknowledgement filed by Vanessa Adams. (Kurker, Allyson) (Entered: 03/11/2009)
9 NOTICE of Appearance by James J. Fauci on behalf of Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD (Fauci, James) (Entered: 03/19/2009)
10 AFFIDAVIT OF SERVICE Executed by Vanessa Adams. Federal Bureau of Prisons served on 2/27/2009, answer due 3/19/2009; Harley G. Lapin served on

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 4 of 8

04/14/2009 04/16/2009
04/17/2009 04/24/2009 06/05/2009 06/05/2009 06/18/2009
06/25/2009 07/10/2009 07/21/2009 07/22/2009 08/14/2009
08/14/2009
08/19/2009 08/19/2009
09/10/2009

2/27/2009, answer due 3/19/2009; Newton E Kendig served on 2/27/2009, answer due 3/19/2009. Acknowledgement filed by Vanessa Adams. (Levi, Jennifer) (Entered: 04/09/2009)
Set/Reset Answer Deadlines for Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD. (Abaid, Kimberly) (Entered: 04/16/2009)
Notice of correction to docket made by Court staff. Correction: Docket Entry 10 corrected because: Defendants are federal government defendants. Reset answer deadlines to give 60 days from date of service for response. (Abaid, Kimberly) (Entered: 04/16/2009)
11 Assented to MOTION for Extension of Time to June 5, 2009 to File Responsive Pleading by Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD.(Fauci, James) (Entered: 04/17/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 11 Motion for Extension of Time Answer due by 6/5/2009. (Lovett, Zita) (Entered: 04/24/2009)
12 MOTION to Dismiss by Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD.(Fauci, James) (Entered: 06/05/2009)
13 MEMORANDUM in Support re 12 MOTION to Dismiss filed by Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD. (Attachments: # 1 Exhibit)(Fauci, James) (Entered: 06/05/2009)
14 NOTICE by Vanessa Adams of Non−Opposition to 12 Defendants' Motion to Dismiss Defendant Fletcher (Capobianco, Cassandra) Modified on 6/30/2009 (Abaid, Kimberly). Modified on 6/30/2009 (Abaid, Kimberly). (Entered: 06/18/2009)
15 Judge Joseph L. Tauro: ORDER entered 12 Motion to Dismiss Count IV of the Complaint is ALLOWED WITHOUT OPPOSITION. (Abaid, Kimberly) (Entered: 06/26/2009)
16 First AMENDED COMPLAINT against Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, filed by Vanessa Adams.(Capobianco, Cassandra) (Entered: 07/10/2009)
17 MOTION for Extension of Time to August 24, 2009 to File Response/Reply by Federal Bureau of Prisons.(Fauci, James) (Entered: 07/21/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 17 Motion for Extension of Time to File Response/Reply Responses due by 8/24/2009 (Abaid, Kimberly) (Entered: 07/22/2009)
18 Emergency MOTION Unopposed by Defendants seeking Order Issued by Tuesday, August 18, 2009 Directing Defendant BOP to Allow Plaintiff's Expert a Contact Visit with Plaintiff on August 20, 2009 by Vanessa Adams.(Capobianco, Cassandra) (Entered: 08/14/2009)
Judge Patti B. Saris: Electronic ORDER entered allowing 18 Emergency MOTION Unopposed by Defendants seeking Order Issued by Tuesday, August 18, 2009 Directing Defendant BOP to Allow Plaintiff's Expert a Contact Visit with Plaintiff on August 20, 2009 by Vanessa Adams. (Alba, Robert) (Entered: 08/14/2009)
19 Second MOTION for Extension of Time to September 10, 2009 to File Response/Reply Unopposed by Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD.(Fauci, James) (Entered: 08/19/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 19 Motion for Extension of Time to File Response/Reply re 19 Second MOTION for Extension of Time to September 10, 2009 to File Response/Reply Unopposed Responses due by 9/10/2009 (Lovett, Zita) (Entered: 08/19/2009)
20 MOTION to Dismiss The Amended Complaint by Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD.(Fauci, James) (Entered: 09/10/2009)

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 5 of 8

09/10/2009
09/21/2009 09/22/2009 10/13/2009 10/20/2009
11/23/2009 12/01/2009 06/07/2010 06/07/2010 06/17/2010 06/18/2010
06/25/2010 08/11/2010
08/11/2010 08/11/2010 08/30/2010 08/31/2010 09/03/2010

21 MEMORANDUM in Support re 20 MOTION to Dismiss The Amended Complaint filed by Federal Bureau of Prisons, Harley G. Lapin, Newton E Kendig, James Fletcher, MD. (Attachments: # 1 Affidavit Patrick C. Gariety, M.D., # 2 Affidavit Cheryl Magnusson)(Fauci, James) (Entered: 09/10/2009)
22 MOTION for Extension of Time to October 23, 2009 to File opposition to defendants' motion to dismiss by Vanessa Adams.(Kurker, Allyson) (Entered: 09/21/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 22 Motion for Extension of Time (Lovett, Zita) (Entered: 09/22/2009)
23 Second MOTION for Extension of Time to November 23, 2009 to File Response/Reply Unopposed by Vanessa Adams.(Capobianco, Cassandra) (Entered: 10/13/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 23 Motion for Extension of Time to File Response/Reply re 23 Second MOTION for Extension of Time to November 23, 2009 to File Response/Reply Unopposed Responses due by 11/23/2009 (Lovett, Zita) (Entered: 10/20/2009)
24 Opposition re 20 MOTION to Dismiss The Amended Complaint filed by Vanessa Adams. (Attachments: # 1 Affidavit of Dr. Randi Ettner)(Kurker, Allyson) (Entered: 11/23/2009)
25 NOTICE by Vanessa Adams re 24 Opposition to Motion of filing Curricum Vitae of Dr. Randi Ettner (Attachments: # 1 Curriculum Vitae of Dr. Randi Ettner)(Capobianco, Cassandra) (Entered: 12/01/2009)
26 Judge Joseph L. Tauro: Judge Joseph L. Tauro: MEMORANDUM AND ORDER entered re 20 . AN ORDER HAS ISSUED. (Geraldino−Karasek, Clarilde) (Entered: 06/07/2010)
27 Judge Joseph L. Tauro: ORDER entered DENIED re 20 Defendants' Motion to Dismiss the Amended Complaint. IT IS SO ORDERED. (Geraldino−Karasek, Clarilde) (Entered: 06/07/2010)
28 Assented to MOTION for Extension of Time to June 25, 2010 to File Response/Reply by Federal Bureau of Prisons.(Fauci, James) (Entered: 06/17/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 28 Motion for Extension of Time to File Response/Reply re 28 Assented to MOTION for Extension of Time to June 25, 2010 to File Response/Reply Responses due by 6/25/2010 (Lovett, Zita) (Entered: 06/18/2010)
29 ANSWER to 16 Amended Complaint by Federal Bureau of Prisons, Newton E Kendig, Harley G. Lapin.(Fauci, James) (Entered: 06/25/2010)
30 NOTICE of Scheduling Conference set for 9/17/2010 10:30 AM in Courtroom 22 before Judge Joseph L. Tauro. IS CANCELED. SEE RESCHEDULED NOTICE 32 .(Geraldino−Karasek, Clarilde) Modified to correct docket entry on 8/12/2010 ). (Entered: 08/11/2010)
31 Judge Joseph L. Tauro: RULE 26 DISCOVERY ORDER entered. (Geraldino−Karasek, Clarilde) (Entered: 08/11/2010)
32 NOTICE rescheduled : Scheduling Conference is set for 9/7/2010 10:30 AM in Courtroom 22 before Judge Joseph L. Tauro. (Geraldino−Karasek, Clarilde) (Entered: 08/11/2010)
33 NOTICE of Change of Address or Firm Name by Allyson E. Kurker (Kurker, Allyson) (Entered: 08/30/2010)
34 First JOINT STATEMENT re scheduling conference. (Attachments: # 1 Exhibit Plaintiff's Rule 16.4 Certification)(Capobianco, Cassandra) (Entered: 08/31/2010)
35 MOTION for Reconsideration re 27 Order on Motion to Dismiss , Or, In the Alternative, to Limit Discovery by Federal Bureau of Prisons.(Fauci, James) (Entered: 09/03/2010)

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 6 of 8

09/03/2010 09/07/2010 09/08/2010
09/08/2010 09/14/2010 09/15/2010 09/23/2010 09/23/2010 10/29/2010 11/09/2010 11/10/2010 11/19/2010 12/01/2010
01/11/2011

36 MEMORANDUM in Support re 35 MOTION for Reconsideration re 27 Order on Motion to Dismiss , Or, In the Alternative, to Limit Discovery filed by Federal Bureau of Prisons. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Fauci, James) (Entered: 09/03/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Scheduling Conference held on 9/7/2010. (see order for details). (Court Reporter: Carol Scott at 617−330−1377.)(Attorneys present: Kurker,Levi,pltf;Fauci,deft.) (Lovett, Zita) (Entered: 09/08/2010)
37 Judge Joseph L. Tauro: ORDER entered DENIED re 35 MOTION for Reconsideration. Discovery to be completed by 3/7/2011). Plaintiff shall serve expert her report(s) by May 9, 2011 and Defendant shall serve their expert report(s) by June 9, 2011. Parties may conduct depositions ( SEE ORDER FOR DETAILS ) No further Discovery is permitted without leave of this court. Status Conference set for 6/22/2011 02:15 PM in Courtroom 22 before Judge Joseph L. Tauro. This case is hereby REFERRED to a Magistrate Judge for Mediation. IT IS SO ORDERED. (Geraldino−Karasek, Clarilde) (Entered: 09/08/2010)
Motions terminated: 35 Defendants Motion for Reconsideration re 27 Order on Motion to Dismiss, or, In the Alternative, to Limit Discovery pursuant to ORDER re 37 of 9/8/2010. (Geraldino−Karasek, Clarilde) (Entered: 02/07/2011)
38 Judge Joseph L. Tauro: ORDER entered REFERRING CASE to Alternative Dispute Resolution.(Geraldino−Karasek, Clarilde) (Entered: 09/14/2010)
ELECTRONIC NOTICE of assignment to ADR Provider. Magistrate Judge Kenneth P. Neiman appointed. The Court will contact counsel with regard to scheduling mediation in Boston. (Franklin, Yvonne) (Entered: 09/15/2010)
39 Magistrate Judge Kenneth P. Neiman. ORDER with respect to Mediation ENTERED, cc:cl. Mediation set for 11/9/2010 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman; confidential mediation memoranda shall be submitted to the court by no later than 11/4/10. See order for details.(Healy, Bethaney) (Entered: 09/23/2010)
Set Deadline as to Confidential Mediation Memoranda due by 11/4/2010. (Geraldino−Karasek, Clarilde) (Entered: 09/24/2010)
40 MOTION for Leave to Appear Pro Hac Vice for admission of Diane Hertz Filing fee: $ 50, receipt number 0101−3129749 by Vanessa Adams. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kurker, Allyson) (Entered: 10/29/2010)
41 REPORT of Alternative Dispute Resolution Provider. "There was progress. Another mediation conference is scheduled for January 12, 2011 at 10:00 a.m." (Healy, Bethaney) (Entered: 11/10/2010)
Set/Reset Hearings: Alternative Dispute Resolution Hearing set for 1/12/2011 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 11/10/2010)
42 MOTION for Leave to Appear Pro Hac Vice Filing fee: $ 50, receipt number 0101−3158036 by Vanessa Adams. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kurker, Allyson) (Entered: 11/19/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered ALLOWED 40 Motion for Leave to Appear Pro Hac Vice Added Diane Hertz. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. ; ALLOWED 42 Motion for Leave to Appear Pro Hac Vice Added Christopher F. Stoll. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Geraldino−Karasek, Clarilde) (Entered: 12/01/2010)
ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Mediation set for 1/18/2011 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 7 of 8

01/20/2011 01/20/2011 01/21/2011 01/21/2011 01/25/2011 02/09/2011 02/09/2011 02/10/2011 02/10/2011 02/25/2011 03/08/2011 03/08/2011 03/28/2011 04/15/2011 04/20/2011
04/20/2011

P. Neiman. (Healy, Bethaney) (Entered: 01/11/2011)
43 REPORT of Alternative Dispute Resolution Provider. "There was progress. A further telephone conference will take place on Friday, January 21, 2011, at 12:30 p.m." (Healy, Bethaney) (Entered: 01/20/2011)
Set/Reset Hearings: Followup Alternative Dispute Resolution Hearing set for 1/21/2011 at 12:30 PM before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 01/20/2011)
44 REPORT of Alternative Dispute Resolution Provider. "There was progress. Another telephone conference is scheduled for 2/11/11 at 1:00 p.m." (Healy, Bethaney) (Entered: 01/21/2011)
Set/Reset Hearings: Further telephone conference re: ADR set for 2/11/2011 at 1:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 01/21/2011)
45 Joint MOTION to Stay for Discovery and Status Conference at End of Stay by Federal Bureau of Prisons.(Fauci, James) (Entered: 01/25/2011)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 45 Motion to Stay. A status conference shall be held on April 21, 2011 at 2:15 p.m. (Lovett, Zita) (Entered: 02/09/2011)
Set Hearings: Status Conference set for 4/21/2011 02:15 PM in Courtroom 22 before Judge Joseph L. Tauro. (Geraldino−Karasek, Clarilde) (Entered: 02/10/2011)
46 MOTION to Reschedule Teleconference Regarding Mediation by Federal Bureau of Prisons.(Fauci, James) (Entered: 02/10/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 46 Defendant's assented−to Motion to Reschedule Telephone Mediation Conference. The Clerk's Office shall contact the parties to reschedule. So ordered. (Neiman, Kenneth) (Entered: 02/10/2011)
ELECTRONIC NOTICE of Hearing ISSUED, cc:cl. Followup Telephone Conference re: Mediation set for 3/7/2011 at 10:30 AM before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 02/25/2011)
47 REPORT of Alternative Dispute Resolution Provider. "There was progress. Another telephone conference is scheduled for March 28, 2011, at 1:00 p.m. and another in person conference is scheduled for April 18, 2011, at 10:00 a.m." (Healy, Bethaney) (Entered: 03/08/2011)
Set/Reset Hearings: Mediation set for 4/18/2011 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. Telephone Conference re: ADR set for 3/28/2011 at 1:00 PM before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 03/08/2011)
48 REPORT of Alternative Dispute Resolution Provider. There was continued progress. An in−person conference is scheduled for April 18, 2011, at 10:00 a.m. (Healy, Bethaney) (Entered: 03/28/2011)
Set/Reset Hearings: Followup Alternative Dispute Resolution Hearing by Telephone set for 4/18/2011 at 10:00 AM before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 04/15/2011)
49 REPORT of Alternative Dispute Resolution Provider. "Settled. The court, however, should not dismiss the case until the parties file their settlement agreement with the court and, thereafter, file a stipulation of dismissal in accord with the settlement agreement, which might not occur for another 100 days or so." (Healy, Bethaney) (Main Document 49 replaced on 4/21/2011) (Healy, Bethaney). (Entered: 04/20/2011)
ELECTRONIC NOTICE Resetting or Canceling a Hearing. Hearing rescheduled or canceled: 4/21/2011 (Lovett, Zita) (Entered: 04/20/2011)

Case: 1:09-cv-10272 As of: 11/02/2014 08:39 PM EST 8 of 8

04/20/2011 05/24/2011
07/25/2011 08/03/2011 09/29/2011 10/03/2011 01/23/2013 01/23/2013 02/04/2013 02/19/2013

50 Joint MOTION for Extension of Time to July 29, 2011 to Stay Discovery by Federal Bureau of Prisons.(Fauci, James) (Entered: 04/20/2011)
51 Judge Joseph L. Tauro: ORDER entered ALLOWED 50 Motion for Extension of Time to July 29, 2011 to Stay Discovery. (Geraldino−Karasek, Clarilde) (Entered: 05/25/2011)
52 Joint MOTION for Extension of Stay of Discovery by Vanessa Adams, Federal Bureau of Prisons.(Fauci, James) (Entered: 07/25/2011)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 52 Motion extension of time (Lovett, Zita) (Entered: 08/03/2011)
53 STIPULATION of Dismissal with Prejudice by Vanessa Adams, Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1)(Fauci, James) (Entered: 09/29/2011)
Civil Case Terminated. (Geraldino−Karasek, Clarilde) (Entered: 10/03/2011)
54 Letter/Request for Docket Sheet from Louis Agnes, LSCI Butner P.O. Box 999 Butner, NC 27509. (Geraldino−Karasek, Clarilde) (Entered: 01/23/2013)
55 DOCKET SHEET sent to Louis Agnes, LSCI Butner P.O. Box 999 Butner, NC 27509. (Geraldino−Karasek, Clarilde) (Entered: 01/23/2013)
56 SECOND Letter/Request for Docket Sheet from Louis Agnes, LSCI Butner P.O. Box 999 Butner, NC 27509. (Geraldino−Karasek, Clarilde) (Entered: 02/05/2013)
57 Letter/Request for Docket Entries from Louis Agnes, LSCI Butner P.O. Box 999 Butner, NC 27509. (Geraldino−Karasek, Clarilde) (Entered: 02/19/2013)

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

VANESSA ADAMS, legal name Nicholas Adams, )

)

Plaintiff,

)

)

v.

)

)

FEDERAL BUREAU OF PRISONS; FEDERAL )

BUREAU OF PRlSONS DIRECTOR HARLEY )

G. LAPPIN, in his official capacity; REAR

)

ADMIRAL NEWTON E. KENDIG, MD, in his )

official capacity.

)

)

Defendants.

)

--------------------------)

C.A. No. 09-10272-JLT

STlPVLATION FOR COMPROMISE SETTLEMENT AND RELEASE

It is hereby stipulated by and between Nicholas Adams alkJa Vanessa Adamsl

(hereinafter referred to as Plaintiff"), and Harley G. Lappin, Acting Administrator of the United

States Bureau of Prisons, (hereinafter referred to as "Detendant" or the "BOP"), by and through

their respective counsel, as follows:

I. In light of the unique circumstances ofPlainlitT's medical needs and Ireatment, the parties

hereby agree to settle and compromise each and every claim of any kind, whether known

or unknown, arising directly or indirectly from the acts or omissions that gave rise to this

case, Vanessa Adams v. Federal Bureau of Prisons el aI., Civil Action No. 09-10272-

JLT, under the terms and conditions set forth in this Stipulation for Compromise

Settlement and Release ("Settlement Agreement").

I According to the Amended Complaint tiled in this action, Adams was born a biological male but "identifies as a female, goes by 'Vanessa,' and intends to change her legal name to 'Vanessa Adams.'" Throughout this Settlement Agreement, Ms. Adams will be referred to by the feminine pronoun and title.
1

2. Defendant further agrees to the following: a. The BOP will issue guidance relating to the treatment of prisoners with Gender Identity Disorder ("GID") forthwith. A copy of the guidance to be issued is attached hereto as Exhibit A. The guidance will be issued, at a minimwn, to the following classes of individuals: i. Chief Executive Officers at all BOP institutions and offices; ii. all Regional Health Services Administrators, Regional Psychology Services Administrators, and the Chief of Pharmacy; iii. BOP medical personnel who have responsibility for treating inmates who have been diagnosed with GID; and iv. BOP inmates who have been diagnosed with GID. b. The BOP will place a note in Plaintiff's medical file that she prefers to be addressed as a female and that addressing her as such is appropriate given her diagnosed condition of GlD. A copy of this note is attached hereto as Exhibit B. c. The BOP will sign a declaration indicating it has no opposition to Plaintiff's effort to change her legal name. This declaration will be submitted in open court proceedings related to Plaintiff's efforts to change her legal name. A copy ofthe declaration is attached hereto as Exhibit C. d. The BOP will continue to provide Plaintiff with appropriate hormone treatment unless medically contraindicated as long as medically necessary to treat Plaintiff's GID. e. Subject to bona fide safety and security considerations, Plaintiff will have access to items on the female commissary including, by way of example only, facial cream,
2

hair relaxer, and supportive undergarments, beginning on Plaintiff's transfer (0 FCC Butner and continuing as long as medically necessary to treat Plaintiff's OlD.
f. By June 20, 2011, the BOP will evaluate Plaintiff for hair removal in furtherance of the treatment of her diagnosed condition ofGlD. Based on that evaluation, the BOP will provide Plaintiff with an appropriate course of hair removal treatment, to the extent medically appropriate. This therapy will begin by July 18,2011 and continue to the extent medically necessary to treat Plaintiff's OlD.
g. By June 20, 2011, the BOP will consult with Plaintiff regarding vocal therapy in furtherance of the treatment of her diagnosed condition of GID. Based on that consultation, the BOP will provide Plaintiff with an appropriate course of vocal therapy. This therapy will begin by July 18,2011 and continue to the extent medically necessary to treat Plaintiffs GID.
h. Within eighteen months of the date of this Settlement Agreement, the BOP will
evaluate Plaintiff's OlD and her treatment to that point. Such evaluation will be
conducted according to the standards set forth in the BOP's GID Guidance (attached hereto as Exhibit A) and the standards of care referred therein and will include an assessment of what additional treatment, if any, is appropriate to treat Plaintiff's GlD. If the assessment determines that further treatment is medically necessary under the applicable standards of care, but that Plaintiff has not met the eligibility or readiness requirements, a plan will be developed to help provide Plaintiff with the treatment and resources necessary to satisfy those requirements, to the extent feasible in the prison context. Plainti1fwill be evaluated for additional treatment on an annual basis
3

throughout the duration of her current incarceration if she requests such an evaluation in writing.
t.
3. In consideration of the promises and undertakings of Defendant herein, Plaintiff, for herself, her heirs, spouse, personal representative and assigns, hereby releases and forever discharges Defendant, together with its agents, employees, successors and assigns, and each and all thereof, of and from any and all manner of actions, suits, damages, attorney fees, and claims of whatsoever kind or nature, whether known or unknown, as of the effective date of this Settlement Agreement, which Plaintiff and her heirs and assigns ever had or now has, including, but not limited to, all claims set forth or that could have been set forth in the charges and the civil action, or any and all other claims relating to or arising directly or indirectly from the acts or omissions that gave rise to the abovecaptioned action. This paragraph does not apply to any action to enforce the terms Oflhis Settlement Agreement, nor does it apply to any future action Plaintiff may bring regarding her future treatment by the BOP including, but not limited to, her hormone treattnent.
4. This Settlement Agreement is not and should not be construed as an admission of liability or fault on the part of Defendant, its agents, servants or employees. This Settlement Agreement is entered into by all parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation. Furthermore, with the exception of the Guidance (Exhibit A) and the BOP Declaration regarding non-objection to Plaintiff's legal name change (Exhibit C), none of the terms in the Settlement Agreement may be
4

offered or received in evidence or in any way referred to in a civil, criminal or administrative action or proceeding other than proceedings that may be necessary to consummate or enforce this Settlement Agreement. 5. The acts as set forth in Paragraphs 2 and 7, and the additional provisions herein, shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unseen injuries and the consequences therefore, resulting, and to result, from the subject matter of the above-captioned action, for which Plaintiff and her heirs, executors, administrators, agents, or assigns, and each of them, now have or may hereafter acquire against Defendant, its agents, servants, or employees. This paragraph does not apply to any action to enforce the terms of this Settlement Agreement, nor does it apply to any future action Plaintiff may bring regarding her future treatment by the BOP. The only future claims concerning the adequacy of her medical treatment that may be brought by Ms. Adams to eniorce this Agreement are those with respect to Defendant's obligations in Paragraphs 2(e), 2(f), 2(g) and 2(h). 6. The Plaintiff agrees to exhaust administrative remedies on any issue constituting an alleged breach of the Settlement Agreement, prior to filing any action for enforcement. If Plaintiff files a lawsuit to enforce the tenos of this Settlement Agreement, the parties agree that they will, as soon as is practicable, mediate the matter before an impartial mediator. In the event that Court-sponsored mediation is not available, Defendant will pay for the cost of, at a minimum, one mediation. 7. Within 10 days of the commencement of the treatment described in Paragraph 2(1) and 2(g), Plaintiff shall deliver to Det,mdant's counsel an executed Stipulation of Dismissal
5

of Civil Action No. 09-10272, Vanessa Adams v. Federal Bureau ofPrisons, el al., with prejudice and without costs. Defendant's counsel agrees to execute the Stipulation of Dismissal and to file it with the court no later tban 10 calendar days after receiving it fi'om PlaintitTs counsel. A copy of the Stipulation of Dismissal with prejudice and without costs is attached hereto as Exhibit D. 8. Defendant agrees that a motion pursuant to Federal Rule of Civil Procedure 60 is an appropriate vehicle to challenge PlaintitTs dismissal of her case made in reliance on the terms of this Settlement Agreement. 9. Plaintiff represents and warrants that she has no pending complaints or charges against Defendant, other than the civil action noted ahove and that she will not file any new or further actions, complaints or charges pertaining to matters released under this Settlement Agreement. Plaintiff confirms and represents that she has not heretofore assigned to any person or entity any claims that would otherwise be covered by this Settlement Agreement. Plaintiff further acknowledges and agrees that this Settlement Agreement has been negotiated by the parties. Plaintiff warrants, represents and agrees that she is not relying on the advice of the United States Attorney's Office or the BOP, or anyone associated with these entities as to the legal consequences of any kind arising out of this Settlement Agreement. This paragraph does not apply to any action to enforce the terms of Ihis Settlement Agreement, nor does it apply to any future action Plaintiff may bring regarding her future treatment by the BOP. 10. The parties agree to respect the privacy rights of all individuals involved in this matter. The fact that the case was voluntarily resolved in a manner acceptable to both sides may be communicated to others. With the exception of the Guidance (Exhibit A), Ihe BOP
6

Declaration regarding non-objection to Plaintiff's legal name change (Exhibit C), and the terms in sections 2 (d) - (h), which relate to Plaintiff's own medical care, explicit terms of the Settlement Agreement cannot be discussed with, disclosed, or related to anyone who does not need the information to implement the Settlement Agreement, without the express written permission of the other party unless required by statute, regulation, or order of a court of competent jurisdiction. 11. This Settlement Agreement cannot be modified or amended except by an instrument in writing, agreed to and signed by the parties, nor shall any provision hereof be waived other than by a written waiver, signed by the parties. 12. The provisions of this Settlement Agreement shall be deemed severable, and any invalidity or unenlorceability of anyone Or more of its provisions shall not affect the validity or enforceability ofthe other provisions herein. 13. Plaintiff hereby acknowledges that she fully agrees to each and every provision in this Settlement Agreement, and the normal rule of construction to the effect that any ambiguities in this Settlement Agreement are to be resolved against the drafting party shall not be employed in the interpretation of this Settlement Agreement. 14. The undersigned parties affirm that the only consideration for signing this Settlement Agreement is the representations and promises contained herein and that no other representation, promise or ag!eement of any kind has been made to or with the undersigned by any person or entity whatsoever to cause the undersigned to sign this Settlement Agreement. This Settlement Agreement contains the entire "l,'teement between Plaintiff and Defendant with respect to the subject matter and supersedes any prior agreements or understandings between them concerning the su~iect matter hereof
7

and the tenns of this Settlement Ab'l"eement are contractual in nature and not mere recitals. 15. It is agreed and understood that this Settlement Agreement shall become effective as of the date upon which it is executed by all the undersigned parties. The provisions in this Settlement Agreement are intended to be perpetual and shall survive the perfonnance of any and all provisions ofthis Settlement Agreement. 16. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together constitute one and the same instrwnent, and photographic copies of such signed counterparts may be used in lieu of the original

FOR THE DEFENDANT,
JAMES J. FAUCI Assistant U.S. Attorney

Dated: -4-.J'Jf- _, 2011

FOR THE PLAINTIFF,

Dated: ~.s::. 2011

8

EXHIBIT A

MEMORANDUM FOR CHIEF EXECUTIVE OFFICERS

FROM: SUBJECT:

RADM Newton E. Kendig, Assistant Director Health Services Division
Charles E. Samuels Jr., Assistant Director Correctional Programs Division
Gender Ide~tity Disorder Evaluation and Treatment

This memorandum provides additional clarification for the evaluation and treatment of inmates with Gender Identity Disorder (GID), and should be read in conjunction with guidance provided in June, 2010 (attached). This memorandum should be distributed and implemented immediately, and applies to inmates currently in Bureau of Prisons (Bureau) custody. This memorandum will be incorporated into the national program statement as soon as possible.
Inmates with a possible diagnosis of GID, including inmates who assert they have GID, will receive thorough medical and mental health evaluations from medical professionals with basic competence in the assessment of the DSM-IV/ICD-10 sexual disorders and who have participated in BOP's GID training, including the review of all available community health records. The evaluation will include an assessment of the inmate's treatment and life experiences prior to incarceration as well as experiences during incarceration (including hormone therapy, completed or in-process surgical interventions, real life experience consistent with the inmate's gender identity, private expressions that conform to the preferred gender, and counseling). If a diagnosis of GID is reached, a proposed treatment plan will be developed which promotes the physical and mental stability of the patient. The development of the treatment plan is not solely dependent on services provided or the inmate's life experiences prior to incarceration. The treatment plan may include elements or services that were, or were not, provided prior to incarceration, including, but not limited to: those elements of the real life experience consistent with the prison environment, hormone therapy and

counseling. Treatment plans will be reviewed regularly and updated as necessary.
Current, accepted standards of care will be used as a reference for developing the treatment plan. All appropriate treatment options prescribed for inmates with GID in currently accepted standards of care will be taken into consideration during evaluation by the appropriate medical and mental health care staff. Each treatment plan or denial of treatment must be reviewed by the Medical Director or BOP Chief Psychiatrist. Hormone therapy must be requested through the non-formulary review process, and approved by the Medical Director and/or BOP Chief Psychiatrist. Consultation with the Chief of Psychology prior to such approval may be appropriate in some cases.In summary, inmates in the custody of the Bureau with a possible diagnosis of GID will receive a current individualized assessment and evaluation. Treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.
cc: Regional Health Service Administrators Regional Psychology Services Administrators Chief of Pharmacy

EXHIBITB

To: All Bureau of Prisons staff and medical and mental health providers
Date: [April 22, 2011J
From: [BOP medical DirectorJ
RE: Addressing inmate Adams as a female
Nicholas Adams a/k/a Vanessa Adams (inmate # 11207-112), is a transgender woman and should be referred to with feminine pronouns and honorifics (e,g" she, her, Ms" and ma'am) and called her female name, Vanessa, Addressing Ms, Adams in this way in written and verbal communications is appropriate given her diagnosed condition of gender identity disorder (GID), Contact [her treating physicianJ if you have questions,
[Signed by BOP medical directorJ

EXHIBITC

Prison Administrator's Furl Name}, [Prison Administrator's Title] Prison p.dministrator's Address) City, State, Zip] Phone #]
Declaration of IPrison Administrator's Full Name]
I, [Prison Administrator's Full Name], dedare as follows:
1. I am employed by the Federal Bureau of Prisons, [Name of Division], 2. I am the [name of position] of [name of faclilty) where Vanessa Adams, #11207·112 is currently
incarcerated. 3, (If provided by anyone other than Vvarden, state authority to grant permission}. 4. If called upon to give testimony in this matter, I could and would competently testify to the
following from my own personal knowledge. S. Based upon my personal knowledge and professional opinion, I have no objection to inmate
Adams' petition for name change.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, executed this IDatel day of [Month], !Yea..d in ICity], [State).
[Prison Administrator's Full Name], [Prison Administrator's Title] [Prison Administrator's Number (if applicable)] Federal Bureau of Prisons, [Unit/Faciiity Name, if appropriate}

EXHIBITD

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

VANESSA ADAMS, legal name Nicholas Adams, )

)

Plaintiff,

)

)

v.

)

)

FEDERAL BUREAU OF PRISONS; FEDERAL )

BUREAU OF PRISONS DIRECTOR HARLEY )

G. LAPPIN, in his official capacity; REAR

)

ADMIRAL NEWTON E. KENDIG, MD, in his )

official capacity.

)

)

Defendants.

)

---------------------------)

C.A. No. 09-1 0272-JLT

STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE

Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, and in accordance with

the terms of the April_, 2011 Settlement Agreement between Plaintiff Vanessa Adams, and the

Federal Bureau of Prisons (BOP), (attached hereto as Exhibit/), Vanessa Adams hereby

stipulates through her undersigned counsel, to the entry of an order dismissing with prejudice all

claims that were stated or that could have been stated in the her Complaint against the BOP. A

proposed order of dismissal is attached as Exbibit 2.

WHEREFORE, to permit them to effectuate the terms of the Settlement Agreement,

pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, the parties respectfully request

that the Court enter an order in the form of the attached hereto as Exhibit 3.

1

Respectfully submitted,
VANESSA ADAMS, legal name, Nicholas Adams,
By her attorneys,
/s/
Cassandra Capobianco, Florida Bar #614734 Admittedpro hac vice ccapobianco@filsinc.org Florida Institutional Legal Services, Inc. 12921 SW 1st Road, Ste. 107, #346 Newberry, FL 32669
Jennifer Levi, BBO #562298 jlevi@glad.org Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA 02108 617.426.1350
Diane Hertz, New York Bar #2343176 Bingham McCutchen, LLP 399 Park Avenue New York, NY 10022-4689 212-705-7821
Allysoll Kurker, BBO #665231 Kurker Law Group LLC 427 Elm Street Concord, MA 01742 978-254-5487
Jody Marksamer, California Bar #229913 Admitted pro hac vice jmarksamer@nclrights.org
Shannon Minter, California Bar #168907 Admilled pro hac vice sminter@nclrights.org
2

Christopher Stoll Admilled pro hac vice National Center for Lesbian Rights 870 Market Street, Suite 3 San Francisco, CA 94102 Dated: August 31, 20 I0
CERTIFICATE OF SERVICE I hereby certifY that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on this day of April_, 2011. lsi Cassandra Capobianco, Florida Bar #614734 Admitted pro hac vice
3