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U.S. DIST. CO~~l~AST DiST. Wl SC.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JUL 1 3 2005

DONNA DAWN (f/k/a Scott) KONITZER,
Plaintiff,
v.
BYRAN BARTOW, MATTHEW J. FRANK, THOMAS M)CHLOWSKI, MARIO CANZIAN), SHARON ZUNKER, DAVID BURNETT, and THOMAS SPEECH,
Defendants.

AT

O'CLOCK

M

SOFRON B. NEDILSKY

Case No. 03 CV 717

Hon. Charles N. Clevert, Jr.

TmRD AMENDED COMPLAINT

Plaintiff, Donna Dawn (flk /a Scott) Konitzer, by her undersigned attorneys, hereby brings this amended civil rights complaint against the Defendants and alleges as follows:
PARTIES I. The plaintiff Donna Dawn (flkla Scott) Konitzer is an adult resident of the State of Wisconsin, who is presently incarcerated at the Wisconsin Resource Center ("WRC"), P.O. Box 220, Winnebago, WI 54985. The plaintiffs Prisoner LD. # is 105033.

2. Defendant Byran Bartow is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Director of the WRC.

3. Defendant Matthew J. Frank is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Secretary of the Department of Corrections ("DOC").

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EXHIBIT
j --L....iA_

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4. Defendant Thomas Michlowski is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Medical Director of the WRC.
5. Defendant Mario Canziani is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Department Health and
Family Services Security Director of the WRC.
6. Defendant Sharon Zunker is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Health Services Nursing Coordinator for the Bureau of Health Services of the DOC.
7. Defendant David Burnett is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Medical Director of the DOC.
8. Defendant Thomas Speech is an adult resident of the State of Wisconsin who at all times referenced in this amended complaint was employed as Clinical Director of the WRC.
9. All defendants are being sued in their official capacities.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331,
1343(a)(3) and (4) in that this is a civil action arising under Constitution and laws of the United States, namely 42 U.S .C. § 1983 and the Eighth Amendment to the United States Constitution, and a civil action to redress the deprivation, under the color of State law, of rights, privileges,
2
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and immunities secured by said provisions and to recover damages or secure equitable relief for the protection of civil rights.

II. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2).

FACTUAL ALLEGATIONS
12. On or about December 22 . 1994. the plaintiff was introduced into the Wisconsin Department of Corrections prison population.

13. Since December 22, 1994, the plaintiff has been incarcerated at Waupun Correctional Institution ("wcr"), Dodge Correctional Institution ("Dcr" ). Green Bay Correctional Institution ("GBCI"), Columbia Correctional Institution ("CCr"), and the WRC. The plaintiff is currently incarcerated at the WRC and has been since September 2002.

14. Between 1994 and 2002, the plaintiff has been transferred between WCI, DCI. GBCI, CCI, and the WRC . Between 1998 and 200 I, Plaintiff was housed at GBCI.

I S. Upon information and belief, prison medical personnel diagnosed the plaintiff as having Gender Identity Disorder ("GID") sometime prior to December 1999.

treatment.

16. GlD is a disorder that necessitates specific medical and psychiatric

17. The defendants refuse to provide adequate medical care necessary for the treatment of an inmate suffering from GlD .

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18. On or about December 1999 at the request of a state-employed physician at GBCI, the plaintiff was started on hormone therapy. The request was approved by the former Medical Director of the DOC, George M. Daley.
19. The plaintiff had no female development prior to her incarceration. 20. As a result of the hormone therapy, plaintiff now has substantial female development. 21. The DOC's stated policy is to treat prisoners with GlD in accordance with their external genitalia. 22. Treating an individual suffering from GID in accordance with his or her external genitalia fails to meet an adequate standard of medical care. 23. The plaintiffs external genitalia is male. 24. Since her incarceration plaintiff has engaged in multiple suicide and castration attempts as a result of defendants' inadequate medical treatment of her GID. 25. A number of the plaintiffs attempts at self-inflicted harm have resulted in hospitalization due to lite-threatening complications. 26. Throughout her incarceration, the plaintiff has repeatedly alerted officials of her need for proper medical treatment in accordance with the medical standards for treating GID.

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27. Despite this knowledge, the defendants have deliberately refused to provide the plaintiff with the adequate medical care necessary for the treatment of an inmate suffering from GID.
CLAIM UNDER 42 U.S.c. § 1983 FOR VIOLATION OF EIGHTH AMENDMENT RIGHTS
28. Plaintiff incorporates by reference the allegations contained in paragraphs 1-27 of her complaint.
29. In committing the acts and omissions complained of herein, the defendants are and were at all times persons who were acting under color of the laws of the State of Wisconsin.
30. Under the Eighth Amendment to the Constitution of the United States, the plaintiff is protected from cruel and unusual punishment administered by persons acting under color of the laws of the State of Wisconsin, including the defendants.
31. The plaintiff suffers from GID, a serious medical condition.
32. By failing to administer proper treatment, including but not limited to, by implementing a policy that does not follow standard protocol for the treatment of GID, the defendants have failed to treat adequately the plaintiffs GID.
33. By failing to provide proper treatment for the plaintiffs GID, including but not limited to, by initiating hormone therapy for the plaintiff, but refusing to otherwise adequately treat plaintiff, the defendants' have unreasonably jeopardized the plaintiffs future health.

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34. After being informed of plaintiffs medical condition and resulting needs the defendants, by their actions and omissions complained of herein, demonstrated deliberate indifference towards her that fails to meet the standards for proper medical care for the treatment of prisoners with GID.
35. By failing to properly treat the plaintiffs GID, the defendants worsened her serious medical condition and jeopardized her future health with deliberate indifference to both of these results, thereby violating the plaintiffs rights under the Eighth Amendment.
36. The actions and omissions of the defendants have resulted in serious physical and emotional harm to the plaintiff, including, but not limited to, inducing suicide attempts, auto-castration, and depression.
WHEREFORE, the plaintiff respectfully requests the following relief: A. Judgment declaring that the acts and omissions of the defendants, as set forth above, violate rights secured to the plaintiff by the Eighth Amendment to the United States Constitution. B. Preliminary and permanent injunctions:
(1) Enjoining the defendants, their employees, agents, and successors in office from providing medical care and treatment to the plaintiff that is inconsistent with the standards of medical care and treatment for GID in the State of Wisconsin as a whole;
(2) Enjoining the defendants, their employees, agents, and successors in office from refusing to provide and delaying provision of necessary medical treatment and care for GID to the plaintiff either at suitable and adequate facilities within the WRC or elsewhcre;

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(3) Enjoining the defendants and their successors in office from failing

to instruct, supervise and train their employees and agents in such a manner as to assure the

delivery of medical treatment and care to the plaintiff which is consistent with the standards of

medical care in the State of Wisconsin as a whole; and

(4) That the Court establish a panel of independent medical experts to

regularly evaluate the delivery of medical treatment and care administered to the plaintiff and

insure the compliance of the defendants and their successors in office with the Court's Orders;

C. Judgment for the plaintiffs costs and expenses of this action, including

reasonable attorney's fees, pursuant to 42 U.S.C . § 1988 and any other applicable law; and

D. Such further and additional prospective relief that is appropriate.

Dated this 11th day of July, 2005.

FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, WI 53202-5306 Voice: 414.297.5567 (BEC) Fax: 414.297.4900 Email: bcothroll@foley.com

Thomas L. Shriner, Jr. David M. Lucey Brian E. Cothroll
~~a
Attorneys for Plaintiff, DONNA DAWN (f/kla Scott) KONITZER

001.18445471

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 U.S,. (~''"j.

~ i(.Udh1l11

UNITED STATES DISSIlt£aaItIJT:F'];CCOOtlJJRRmm::rr--W\VI/

FOR THE EASTERN DISTRICT O'F'Ii'"WWIISS((::JJONSIN

DONNA DAWN (flkl/aa Scott) KONITZER, Plainttiiffff,
v. BYRAN BARTOW, et aI.,
Defendants .

'06 JAN 17 P4 :17
r'.,..,,.,'. ,I'::n"~"a"'"ss.ee ,NN: oo.· ,~(~1.U\k~:i: '(P,,WJT~\f/MrJuIl 77
i!::;LLC:_'.'' ~:~r\
Hon. Charles N. Cleven, Jr.
Copy hand-delivered to chambers

BRIEF IN SUPPORT OF PLAINTIFF'S EMERGGEENCY MOTION FOR AA TEMPORARY RESTRAINING ORDER AND PRREELLIIMMIINARY INJJUNCTION ENJOINING DEFEENDANTS FROM STOPPING PLAINTIFF'S HORMOONAL THERAPY

In an overtly retaliatory maneuver against Plaintiff Donna Dawn (fl/k/a Scott)

Konitzer because of the above-captioned lawsuit, the Wisconsin legislature recently passed, and

Governor James Doyle recently signed into law, 2005 Wisconsin Act 105, the "Inmate Sex

Change Prevention Act" (the "Prevention Act"). The act, which created Wis. Stat.

§ 302.386(S5m),

takes

effect

on

January

24,

2006.

1
'

Pursuant

to

the

Prevention

Act,

defendants

informed Ms. Konitzer, a biological male in the Wisconsin correctional systemm,,22 that they plan to

begin reducing the female hormones she receives as treatment for her Gender Identity Disorder

("GID") on January 24, 2006. As illustrated in Ms. Konitzer's response to defendants ' motion

I The Prevention Act, though signed on January 6, will be published on January 23, 2006 and take effect Ihe next day, pursuant to Wis,. Stat. § 991.11,.
2 Inmate Konitzerr,, as a perrson sufferring from Genderr Identity Disoorrderr, desires to be calledd by a feminine name which reflects her inner self-i mage. Thus, throughout this brieeff, inmate Konitzer generally will be referred to as "uDonnaa Dawn," "I'MMs. Konitzerr," or by a female pronoun..

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for summary judgment, defendants' refusal to provide the real-life experience in conjunction with hormona/therapy constitutes cruel and unusual punishment under the Eighth Amendment. Although hormonal therapy alone has not met the standards of care to adequately treat Ms.
Konitzer' s severe OGIlD, she has significantly benefited from it. Coupled with defendants' counter-therapeutic refusal to socially treat her as a female, their intended action will wreak psychological and physical havoc on Ms. Konitzer, and makes either a castration attempt or attempted suicide a virtual certainty.
To prevent such disastrous consequences, plaintiff asks the Court to enter a Temporary Restraining Order and Preliminary Injunction directing defendants and persons acting under their authority to continue administration ofppllaintiffff's hormonal therapy, and enjoining their enforcement of sec. 302.386(S5m), Wis. Stats., because such enforcement, as applied to plaintiff, violates plaintiff's Eighth Amendment right to be free from cruel and unusual punishment; violates plainttiiffff's First Amendment right to petition the government for a redress of grievances; and violates the Ex Post Facto Clause of Article I, section 10 of the United States
Constitution. STATEMENT OF FACTS
As the Court is aware, Ms. Konitzer is an inmate currently incarcerated at the Wisconsin Resource Center ("WRC") who has been diagnosed with OGID 3 (PFOF ~ 4422.)4f While incarcerated, and owing to her OGIlD, Ms. Konitzer has attempted castration and suicide mUullttiiple
As the facts of this case are well known to the Court, plaintiff limits her discussion of the facts
only to those relevant to the instant motion. For a more expositive discussion of the facts of this case, Ms. Konitzer
refers the Court to her Response to Defendants' Motion for Summary Judgment, and her proposed findings of fact and resp onses to defendants' proposed findings offact submitted in support of the Response .
Throughout this brieeff, citations to Plaintiffs Proposed Findings of Fact are referred to herein as "PPFOF ~ _ ", Defendants' Proposed Findings of Fact are referred to herein as "DFOF ~ _"n, and Plaintiffs Response to Defendants' Proposed Findings of Fact are referred to herein as "PRESP, __..n "

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302.386(5m) prohibits the DOC from using federal or state funds to facilitate an inmate 's sex change operation or provide an inmate with hornmnone therapy. (Todd Dec!. '~\12, Ex. A.) Under the statute, no regard is given to the medical condition ofiimnmnates currently on hormone therapy.
It is evident that the act is directed at Ms. Konitzer personally. Around the time the Prevention Act was introduced, legislative press releases noted that the " lawmakers sponsored the legislation after a prisoner at the Wisconsin Resource Center near Oshkosh was given hormone therapy treatments at the expense of taxpayers and is now suing the state to complete his ' gender transformation' to a woman." (Todd Dec!. '~\13, Ex. B.) Rep. Scott Suder, tihle bill's co-sponsor,, also singled out Ms. Konitzer. As his press releases relate, he "introduced [the bill] after a prison inmate sued the state to fully fund his gender transfer surgery." (Todd Dec!. '~\14, Ex. C.) Pursuant to the newly-enacted legislation, defendants Bryan Bartow and Dr. Thomas MicWhlowski informed Ms. Konitzer that the WRC plans to begin reduction of Ms. Konitzer's hormone therapy on January 24,,220006, the effective date of the act, without regard for the current lawsuit or medical condition, and with the intention of eventually stopping the treatment completely.
Defendants' ill-conceived actions will jeopardize Ms. Konitzer's psychological health and create a life-threatening situation. (R. Ettner Dec!l. '~\14.) Female hormones are as necessary for the treatment of GOID as insulin is for diabetes. (F. Ettner Dec!. '~\16.) Ms. Konitzer's history of self-castration and attempted suicide due to her GOIlD is well-documented,
and stopping her hormonal therapy exacerbates the risk of self-harm or suicide. (Idd. '~\I 5.)
Moreover, hormones profoundly affect the brain, and the cascading changes in brain chemistry
will lead to depression, anxiety, agitation and other mood changes in Ms. Konitzer, C(RR.. Eiltner
Dec!l. '~\16; F. Eittner Dec!. '~15), which may cause her, if provoked, to act out against others as well

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as herself. (R. Ettner Decl. '~1[6.) This is true even for individuals with no history of mental issues. (I/d.) The Standards of Care explicitly note that rapid withdrawal of hormonal therapy for prisoners places them at risk for psychiatric symptoms and self-injurious behaviors.. (See F. Etltner Decl., Ex. A, p. 12.) Defendants already are counter-therapeutically treating Ms. Konitzer as a male, and their plans to stop her honnone therapy after six years will almost certainly propel Ms. Konitzer to attempt castration again, or even try to end her own life.. (R. Ettner. Dec!l. '~1['~1[ 56.) Indeed, given Ms. Konitzer'Ss past history and the cruelty of the State's intended course off action, one of those outcomes is a virtual certainty. (J/d. '~1[7; F. Ettner Decl. '~1[6.)
Withdrawing female hormones also wreaks havoc on the body's internal systems and functionss. (F. Ettner Dec!. '~1[44.) Stopping Ms. Konitzer's medically necessary female hormones puts her at an increased risk of coronary heart disease and diabetes , and she likely will experience muscle wasting and osteoporosis. (I/d.)8 Ms.. Konitzer will also deal with stress more poorly, as her body's production of cortisone (an internal anti-stressor), will become disregulated. (/Id.) This damage is both substantial and ilrTreepparable. (/Idd..)
Finally, defendants ' own expert, Cynthia S. Osborne, MSW, agrees with the plainttiifff that stopping hornmnone therapy would be "cruel and clinically inappropriate." (Todd Decl. '~1[ 5, Ex. D.)
ARGUMENT Without the Court's intervention, enforcement of sec. 302.386(S5m), as applied to Ms. Konitzer, will violate plaintiffs Eighth and First Amendment rights, as well the Ex Post

These conditions are also likely exacerbated by the fact that Ms. Konitzer has only one testicle, and due to the hormone therapy, that testicle has shriveled. (See F. Eittner Decl., Ex. A, p. 12.)

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Facto Clause of the Constitution.. In addition, Ms.. Konitzer is virtually certain to suffer
irreparable injury if defendants cease her hormone therapy.
1l. Under Tbe Test Traditionally Applicable For Injunctive Relief, Tbis Court Sbould Order Injunctive Relief To Preserve Tbe Status Quo - Administration of Ms. Konitzer's Hormone Tberapy
The standard for granting preliminary injunctive relief is well-established:
A party seeking to obtain a preliminary injunction must demonstrate: (I) its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists; and (3) it will suffer irreparable harm if the injunction is not granted. See Abboltlt Labs. v. Mead Johnson & Co., 971 F.2d 6, 1I1I (7th Cir. 1992).
If the court is satisfied that these three conditions have been met, then it must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the ilrTreeppaarable harm the moving party will suffer if relief is denied. See Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311 (7th Cir. 1994). Finally, the court must consider the public interest (non-parties) in denying or granting the injunction. !ld.
The court then weighs all of these factors, " sitting as would a chancellor in equity," when it decides whether to grant the injunction. Abbolttl Labs., 971 F.2d at 12. This process involves engaging in what we term the sliding scale approach; the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms need favor the plaintiffs position. lId. The sliding scale approach is not mathematical in nature, rather "it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief." lId. (internal citations and quotation marks omitted).
Ty, Inc. v. Jones Group, Inc., 237 FF.J3d 891, 895-96 (7th Cir. 2001).
A. Ms. Konitzer Has a Substantial Likelibood of Success on tbe Merits.
In the Seventh Circuit, a party seeking a preliminary injuwnlction must show that it
has "some likelihood of success on the merits." Abbot Labs. , 971 F.2d at 1II1. The court has held
that "the threshold is low. It is enough that the plaintiffs chances are better than negligible ....

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." Roland Mach. Co. v. Dresser Indus.,, Inc., 749 F.2d 380, 387 (7th Cir. 1984). Here, Ms. Konitzer's likelihood of success on the merits is high, and heavily favors a grant of injunctive relief.
1. Enforcement of Sec. 302.386(Sm) Will Violate Ms. Konitzer's Eighth Amendment Right to Necessary Medical Treatment
Deliberate indifference by prison officials to a prisoner's serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). The test for demonstrating deliberate indifference to Ms. Konitzer's GlD is two-ffold. First, Ms. Konitzer must show that she suffers from a serious medical need which presents an objectively substantial risk of harm. Greeno v.. Daley, 414 F.3d 645 , 653 (7th Cir. 2005). Second Ms.. Konitzer must show that the defendants knew that the risk existed, that the defendants either intentionally, or recklessly ignored it, and that they will continue to do so in the future. Farmer v.. Brennan, 511 U.S. 825,842, 846 (1994).
With regard to the first prong, that Ms. Konitzer's GID is a serious medical need is undeniable.. See Meriwelther v. Faulkner, 821 408, 413 (7th Cir.. 1987) (finding that "there is no reason to treat transsexuallism differently than any other psychiatric disorder" and that "it is a serious medical need."); see also Phillips v.. Michigan Dep 'It oa/Correctlions, 731 F. Supp. 792, 800-01 (W .D. Mich. 1990) (finding that whether diagnosis of inmate's condition was transsexual ism or gender identity disorder, inmate suffered from a serious medical need and was entitled to preliminary injunction ordering estrogen therapy). Indeed, defendants' concede that Ms. Konitzer suffers from GID and that it is a serious medical need, referring throughout their summary judgment brief to Ms. Konitzer's GlD as a "serious medical need. " (Defs..' Briefin Support of Motion for Summary Judgment, pp. 1, 6, 9.)
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It is also obvious that Ms. Konitzer can demonstrate that defendants are recklessly, even intentionally, ignoring the risk of harm to Ms. Konitzer that their intended action poses. Defendants' actions are attributable solely to the enactment of the Prevention Act. (See Todd Dec!. ~ 6, Ex. E.) The act on its face creates a blanket rule, without the individualized determination that the Eighth Amendment requires. See De 'Lonta, 330 F.3d 630, 634-35 (4th Cir. 2003) (stating that treatment based upon a blanket rule rather than an individualized determination constitutes deliberate indifference, and that treatment that does not prove to be a reasonable method of reducing self-mutilation can constitute deliberate indifference). And although the Wisconsin legislature went to great lengths to avoid any reference to GID, the statute is the only one plaintiff is aware of in the state of Wisconsin that explicitly crafted to prohibit treatment medically necessary under the standards of care for treatment of an illness. By any measure, defendants' enforcement of the statute against Ms. Konitzer is an intentional, or at the very least a reckless, disregard of risks of harm to her.
Those risks are evident, both in the record and as outlined above. Ms. Konitzer has attempted castration and suicide numerous times, and stopping her hormone treatment will only exacerbate her psychological and physical distress. Defendants' intended action also will damage her internal systems and functions substantially and irreparably. (F. Ettner Dec!. ~ 4). Ms. Konitzer is already in a fragile psychological state, and loss of female hormones that help consolidate her gender identity makes an attempted castration or suicide a virtual certainty. (R. Etitner Decl.. ~~ 6-7.)
"Female hormones are as necessary for the treatment of GID as insulin is for diabetes. " (F. Ettner Dec!\. ~ 6.) That is the position of treatment providers with expertise in this area, (see R.. Ettner Decl.; F. Eittner Dec!.); that is the position of the definitive authority for

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treating GIlD, the Harry Benjamin International Gender Dysphoria Association Standards of Care. (R. Ettner Decl. ~ 3; F.. Ettner Decl. ~ 2 and Ex. A.); and that is the position of courts confronting this issu~. See Phillips, 731 F. Supp. at 800-01. Even defendants' own expert, Cynthia S. Osborne, MSW, has reached the conclusion, expressed in her expert report that to discontinue hormonal treatment at this point would be cruel and clinically inappropriate. (Todd Decl. ~ S, Ex. D.) Defendants' intended action to cease this medically necessary treatment further illustrates their deliberate indifference toward Ms. Konitzer' s GID and violates Ms.. Konitzer's Eighth Amendment right to be free from cruel and unusual punishment.
2. Enforcement of Sec. 302.386(Sm) Will Violate Ms. Konitzerr's First Amendment Right to Petition tbe Goverrnment for a Redress of Grievances
The enactment of sec.. 302.386(Sm) is a direct retaliation against Ms. Konitzer for her current lawsuit claiming that the state is denying her necessary medical treatment. The legislature has sought to punish Ms. Konitzer for filing her lawsuit against the state by taking away the very medical treatment she is already receiving.. Such retaliation is, of course, prohibited by the First Amendment's Petition Clause. See Harris v. Fleming,, 839 F.2d 1232, 1236-38 (7th Cir. 1988) (allegations of retaliation, combined with evidence of termination from prison employment and cell transfers following successful lawsuits, held sufficient to create jury question in section 1983 action).
While facially neutral, sec. 302.386(Sm) in reality is not a broad-based legislative judgment regarding the use of state funds or prison policies generally, but a retaliatory measure. In February 200S5 (the time the act was introduced), Dr. Kevin Kallas, medical director for the Wisconsin Department of Corrections ("DOC"), acknowledged that while a few other inmates in the DOC received hormones, Ms. Konitzer was by far the most vocal about seeking necessary treatment for her GID. (Todd Decl. ~ 7, Ex. F.) Moreover, press releases, from members of the

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Wisconsin legislature who sponsored the Prevention Act, specifically pointed to Ms. Konitzer' s hormone treatment and lawsuit. (Todd Decl., Exs.. B, C.)
Furthermore, the timing of the law is suspicious. Ms. Konitzer has been receiving hormone therapy continuously since 1999, and it was not until after she filed her lawsuit that the legislature took up the issue of stopping her hormone therapy. This timing is further evidence that the legislature acted with a retaliatory intent. See Bruce v.. Ylsf, 351 F.3d 1283, 1288 (9th Cir. 2003) ("[T]iming can properly be considered as circumstantial evidence of retaliatory intentl.")..
The prohibition against state retaliation against inmate lawsuits is settled law. "Persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes access of prisoners to the courts for the purpose of presenting their complaints." Milhouse v. Carlson, 652 F.2d 371, 373 (10th Cir. 1981). Access to the courts "must be freely exercisable without hindrance or fear of retaliation." Id. at 374; see also Bruce, 351 F.3d at 1288 ("[A] chilling effect on a prisoner's First Amendment right to file prison grievances is sufficient to raise a retaliation claim.). While admittedly these cases all dealt with retaliation by prison official, state legislation is equally subject to the prohibition of the Petition Clause. See, e.g., In re Workers' Compensation Refuimnd, 46 F.3d 813, 833-23 (8th Cir. 1995).
3. Enforcement of Sec. 302.386(5m), as Applied to Ms. Konitzer, Violates tbhe Ex Post Facto Clause.
Section 302.386(5m) also retroactively increases Ms. Konitzer's punishment by altering the conditions of her confinement, in violation of the Ex Post Facto Clause. See U.S. Const. art. I, § 10, cl. 1; Collins v. Youngblood,, 497 U.S.. 37,41--42 (1990), cited approvingly in Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003) ("A change in law violates the federal Ex

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B. Ms. Konitzerr Does Not Have an Adequate Remedy At Law and Will Suffer Irrreeparraabble Harm Without Hormone Therapy. That Ms. Konitzer does not have an adequate remedy at law is clear. Ms.
Konitzer's mental and physical health will be jeopardized absent a preliminary injunction, so an award of damages at some later point would be woefully insufficient. See Roland Mach..,, 749 F.2d at 386 (An inadequate remedy means only that it is "seriously deficient as a remedy for the harm suffered.")..
The Seventh Circuit has defined irreparable harm as "harm that cannot be prevented or fully rectified by the final judgment after the trial." ldd. at 386. The extreme psychological distress and physical damage Ms. Konitzer will endure, as noted above, because of defendants' intended action is precisely the kind of harm injunctive relief protects against. Such relief is all the more critical because defendants' action puts Ms. Konitzer life in peril. (R. Ettner Decl. ~ 7; F. Ettner Dec!l. ~ 6.)
C. The Balance of Harms Weighs Heavily in Ms. Konitzerr's Favorr and the Public Interest Will be Served by a Prreliminary Injunnnction. The WRC is currently providing Ms.. Konitzer with hormone therapy, and so a
preliminary injunction will result in no actual harm to defendants. See Phillips, 731 F. Supp.. at 801I (finding that a preliminary injunction requiring the Michigan Department of Corrections to provide plaintiff with estrogen treatment was unlikely to result in harm to others). While the WRC will be forced to continue to pay the costs of Ms. Konitzer's hormone therapy, when this is weighed against the anticipated harm to plainttiiffff's health, the balance tips dramatically in her favor.. Finally, the public interest will be served by granting a preliminary injunction safeguarding constitutional rights in Wisconsin prisons.. See id.. II. Immediate Injuunncttive RelieffIIs Necessaary.

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The defendants' plan to end Ms. Konitzer's hormone therapy on January 24, 2006 threatens Ms. Konitzer with imminent harm, potentially life-threatening. The enactment of sec. 302.386(S5m) and defendants' intended action pursuant to it have unfortunately precipitated this emergency and the need for expedited relief. If injunctive relief is to protect Ms. Konitzer from irreparable harm, it must be entered prior to January 24, 2006. The Court should therefore enter at the least a temporary restraining order effective prior to January 24, to maintain the status quo, pending a future decision regarding preliminary injunctive relief.
CONCLUSION Defendants' intended action is the picture of cruel and unusual punishment. As the Court of Appeals wrote only last week about a different but similarly irresponsible piece of legislation from Illinois: "[wJ]e do not understand how a responsible state legislature could pass, a responsible Governor sign, or any responsible state official contemplate enforcing, such
legi slation." 520 S. Michigan Ave. Assoc., Ltd. v Devine, No. 05-2479 (ih Cir. Jan. 10,2006), slip op. at 6-7. Enforcement of the act in retaliation for Ms. Konitzer's commencement of this lawsuit will do significant damage to her physical and psychological well-being, and may cause her to attempt to take her own life. It should also be an embarrassment to the State of Wisconsin.
Ms. Konitzer has demonstrated that preliminary relief is warranted and, therefore, respectfully requests immediate entry of a temporary restraining order requiring defendants to continue administering her hormone therapy effective until the Court can enter further preliminary injunctive relief.

MllW_1942S311.2

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Dated this 17th day of January, 2006. FOLEY & LARDNER LLP

FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202 414.297.5567 (BEC) 414.297.4900 (Facsimile) bcothroll@foley.com

Thomas L. Shriner, Jr. David Lucey Brian E. Cothroll Leon W.. Todd
Attorneys for plaintiff, Donna Dawn (f/k/a Scott) Konitzer

MILW_1942S531.2

15

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

DONNA DAWN KONITZER a/k/a Scott Konitzer,
Plaintiff,
v.
BYRON BARTOW, MATTHEW J. FRANK, TOM MICHLOWSKI, MARIO CANZIANI, SHARON ZUNKER, TOM BURNETT, and TOM SPEECH
Defendants.

Case No. 03-C-717

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND GRANTING MOTION FOR PRELIMINARY INJUNCTION BARRING DEFENDANTS
FROM WITHDRAWING PLAINTIFF’S HORMONAL THERAPY A telephonic hearing was conducted by the court on January 18, 2006, for initial consideration and scheduling of Plaintiff’s Emergency Motion for a Temporary Restraining Order and Preliminary Injunction Enjoining Defendants from Stopping Plaintiff’s Hormonal Therapy, filed January 17, 2006. The plaintiff appeared by Attorneys Brian E. Cothroll and Leon W. Todd; and the defendants appeared by Assistant Attorney General Jody J. Schmelzer. The plaintiff, a Wisconsin prison inmate, brings this civil rights action under 42 U.S.C. §1983 and the Eighth Amendment to redress an alleged deprivation of rights and immunities, under color of state laws. The plaintiff claims that the defendants refuse to provide the plaintiff adequate medical care necessary for the treatment of plaintiff’s Gender Identity Disorder (GID). The Third Amended Complaint asserts, in part, that the defendants have unreasonably jeopardized the plaintiff’s future health and that they are deliberately

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indifferent to the plaintiff’s serious medical needs under the Eighth Amendment of the United States Constitution.
Also pending before the court is the defendants’ motion for summary judgment brought pursuant to Fed. R. Civ. P. 56. The motion was accompanied by supporting briefs, affidavits, exhibits and proposed findings. Opposing submissions have been filed by the plaintiff and the motion will be decided in due course.
The plaintiff’s emergency motion of January 17, filed pursuant to Fed. R. Civ. P. 65, asks this court to direct the defendants and persons acting under their authority to continue administration of the hormonal therapy that the plaintiff has been receiving while in the defendants’ custody at the Wisconsin Resource Center. According to the plaintiff’s brief and declarations by Frederic M. Ettner, M.D. and one of the plaintiff’s attorneys, Leon W. Todd, the plaintiff has been receiving female hormonal and anti-adrogen therapy since 1999 for treatment of GID. They submit that Wis. Stat. § 302.386(5m), enacted January 6, 2006, also known as the “Inmate Sex Change Prevention Act,” will become effective on January 24, 2006, and that pursuant to the statute, the defendants will begin reducing the plaintiff’s hormone therapy with the intention of eventually stopping it completely. The papers supporting the motion add that all of the plaintiff’s endocrine functions and organ systems will be affected by cessation of the therapy, including but not limited to the cardiovascular system, metabolic function, gonadal function, pancreatic function, and adrenal function. Further, they maintain that the plaintiff’s depression will become more acute, blood pressure will rise and suicide ideation will accelerate. Consequently, the plaintiff concludes that the Eighth Amendment’s ban on cruel and unusual punishment and the Ex Post Facto Clause of article
2
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I, section 10 of the United States Constitution support injunctive relief and entry of an order barring the defendants from terminating the plaintiff’s hormonal therapy.
During the telephonic hearing on January 18, defense counsel acknowledged receipt of the plaintiff’s motion and advised that the defense needs time to prepare for a full hearing on a preliminary injunction. The ensuing statements of the plaintiff’s counsel and defense counsel noted that the defendants acknowledge, at least for the purpose of their motion for summary judgment, that the plaintiff has GID and is receiving hormonal therapy for the condition. The defendants plan to wean the plaintiff from hormonal therapy starting January 24, based on the Inmate Sex Change Prevention Act, Wis. Stat. § 302.386(5m). Moreover, the defendants did not dispute that an Assistant Professor Psychotherapist/ Forensic Consultant/Human Service Consultant, whose report they rely on in support of their motion for summary judgment, states “that to discontinue that [hormonal] treatment at this point, given the considerable feminine development that has occurred [with the plaintiff] and the inmate’s reported satisfaction with that development, would be cruel and clinically inappropriate. GID is accepted in the medical nomenclature as a psychiatric illness that requires treatment. And hormonal reassignment is one recognized treatment for GID.” ( Ex. 95 at 34.)
To prevail on a motion for a preliminary injunction, the plaintiff must establish (1) a likelihood of success on the merits of at least one of the plaintiff’s claims; (2) that there is no adequate remedy at law; and (3) that the plaintiff will suffer irreparable harm if the injunction is not granted. Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 811 (7th Cir. 2002); see also Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If these three conditions are met, the court must balance the harm to the plaintiff if the injunction
3
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is not issued against the harm to the defendants if it is issued. Storck v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). This balancing involves a sliding scale analysis: the greater the plaintiff’s chances of success on the merits, the less strong a showing the plaintiff must make that the balance of harm is in its favor. Id.
Based on the record in this case, including the statements of counsel at the January 18 telephonic hearing, the court finds that the plaintiff has established a basis for a temporary injunction. Specifically, it is likely that the plaintiff can establish an Eighth Amendment violation inasmuch as the withdrawal of hormonal therapy will injure the plaintiff’s long term health, and the adverse effects will be irreparable. Moreover, money damages would not provide an adequate remedy to the plaintiff. Further, the balance of harms tips in favor of the plaintiff because the Wisconsin Department of Corrections has been administering hormones to the plaintiff since 1999, ostensibly for health reasons, and at least one of the defendants’ witnesses agrees with the plaintiff’s claim that termination of that therapy would be cruel and clinically inappropriate. With due regard for this proof, continuing the plaintiff’s hormone treatments is more important than the saving of state and federal funds that must be expended for the treatments pending a further preliminary injunction hearing. For the reasons stated above and those set forth in the record of the hearing of January 18, 2006,
IT IS ORDERED that the plaintiff’s motion for preliminary injunction is granted. IT IS FURTHER ORDERED, nunc pro tunc 3:51 p.m., January 18, 2006, that the defendants and anyone acting under their authority or the authority of the State of Wisconsin, is enjoined until February 7, 2006, from withdrawing from the plaintiff any hormone therapy prescribed as of January 17, 2006.
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IT IS FURTHER ORDERED that no security for costs is warranted with respect to the plaintiff’s motion.
IT IS FURTHER ORDERED that a telephonic status conference is scheduled for January 27, 2006, at 11:30 a.m.
IT IS FURTHER ORDERED that a full hearing on the plaintiff’s motion for preliminary injunction shall commence February 7, 2006, at 1:00 p.m., In Courtroom 222 U. S. Courthouse, 517 East Wisconsin Ave., Milwaukee, Wisconsin.
Inasmuch as the plaintiff failed to present specific facts establishing that immediate and irreparable injury would be suffered by the plaintiff before the defendants were heard, as required by Fed. R. Civ. P. 65(b),
IT IS FURTHER ORDERED that plaintiff’s motion for a Temporary Restraining Order is denied.
Dated at Milwaukee, Wisconsin, this 20th day of January, 2006. BY THE COURT s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. U. S. District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

DONNA DAWN KONITZER a/k/a Scott Konitzer,

Plaintiff,

v.

Case No. 03-C-717

BYRAN BARTOW, MATTHEW J. FRANK, TOM MICHLOWSKI, MARIO CANZIANI, SHARON ZUNKER, TOM BURNETT, and TOM SPEECH,

Defendants.

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants Byran Bartow, Matthew J. Frank, Tom Michlowski, Mario Canziani, Sharon Zunker, David Burnett, and Tom Speech, by their attorneys, Peggy A. Lautenschlager, Attorney General, and Jody J. Schmelzer, Assistant Attorney General, hereby submit this brief in support of their motion for partial summary judgment.

ISSUES PRESENTED
1. Are the defendants are entitled to judgment as a matter of law on recommendations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 for injunctive relief because there is no evidence that the defendants have or would be deliberately indifferent to any serious medical need Konitzer may have absent such injunctive relief?
2. Should the court decline to issue injunctive relief, as a matter law, refusing to implement the recommendations that Konitzer receive searches from female guards only, makeup, female undergarments, a female name, and the use of hair removal/growth products where such recommendations are contrary to WRC and DOC’s legitimate institutional interests and are

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beyond the scope of injunctive relief available under the Prisoner Litigation Reform Act (“PLRA”)?
STATEMENT OF THE CASE This is a 42 U.S.C. § 1983 action brought by Scott (a/k/a Donna Dawn) Konitzer (Konitzer), an inmate confined to the Wisconsin Department of Corrections (DOC). It was initiated on August 11, 2003. Konitzer is a male inmate currently housed at the Wisconsin Resource Center (WRC), a State of Wisconsin Department of Health and Family Services (DHFS) facility for inmates with mental health needs. The defendants are all employees and/or officials of DOC and DHFS. In an order dated September 24, 2003, the court granted Konitzer leave to proceed in forma pauperis on his claim that the defendants were inadequately treating his Gender Identity Disorder (GID) in violation of the Eighth Amendment. The only claim that Konitzer makes is that the defendants have violated his Eighth Amendment rights. See Third Amended Complaint. Konitzer seeks injunctive relief for the following: (1) enjoining the defendants, their employees, agents, and successors in office from providing medical care and treatment to the plaintiff that is inconsistent with the standards of medical care and treatment for GID in the State of Wisconsin as a whole; (2) enjoining the defendants, their employees, agents, and successors in office from refusing to provide and delaying provision of necessary medical treatment and care for GID to the plaintiff either at suitable and adequate facilities within the WRC or elsewhere; (3) enjoining the defendants and their successors in office from failing to instruct, supervise and train their employees and agents in such a manner as to assure the delivery of medical treatment and care to the plaintiff which is consistent with the standards of medical care in the State of Wisconsin as a whole; and (4) that the Court establish a panel of independent medical experts to
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regularly evaluate the delivery of medical treatment and care administered to the plaintiff and insure the compliance of the defendants and their successors in office with the Court’s Orders (See Third Amended Complaint, p. 6, ¶ (B)(1)-(4).
Presumably, the specific injunctive relief1 sought by Konitzer is set forth by his retained experts in this case, Dr. Randi Ettner and Dr. Frederic Ettner. Dr. Randi Ettner recommends that Konitzer receive the following while incarcerated in order to receive the appropriate, acknowledged treatment for GID: (1) evaluation by a physician who specializes in the care of these patients so that Konitzer’s hormonal protocol be accurately reconfigured; (2) follow-up with this medical specialist every six months, or as necessary; (3) non-medical examinations for security purposes executed by female personnel; (4) periodic access to a mental health caregiver with expertise in treatment of this class of disorder, i.e. a member of the Harry Benjamin International Gender Dysphoria Association; (5) access to a modest amount of make-up; (6) use of female undergarments; (7) privacy in toilet and shower; (8) the ability to use a female name in addressing oneself, and to be so addressed by others; and (9) the ability to use products such as depilatories and/or hair growth stimulators that are harmless and enhance one’s ability to live in the preferred gender role (DFOF ¶ 50).
Dr. Frederic Ettner recommends that in order to provide for the health and welfare of Konitzer, he must receive the following protocol: (10) complete physical examination and laboratory testing including hormonal assessment; (11) HRT (hormone replacement therapy), specifically non-conjugated estrogens, i.e. estradiol valerate (bio-identical) in the form of patch, gel, or cream; (12) anti-androgen finesteride in order to block exogenous androgens and stimulate
1 See Fed. R. Civ. P. 65(d). - 3 -
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scalp hair and decrease body hair; (13) consistent follow-up every 3 months; and (14) coordination with psychiatrists and psychological recommendations (DFOF ¶ 62).
Through their motion for partial summary judgment, the defendants submit that there is no dispute of material facts in this case as to recommendation No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 14, and that they are entitled to summary judgment on Konitzer’s requests for prospective relief based upon these recommendations.2 This brief is submitted in support of that motion.
STANDARD OF REVIEW Under Federal Rules of Civil Procedures 56(c), summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Summary judgment must be granted “against a party who fails to make a showing sufficient to establish the existence of an element to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The opposing party "may not rest upon the mere allegations or denials" in the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e). Also, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574, 586
2 The only recommendation that the defendants do not submit is ripe for summary judgment is recommendation No. 11, that Konitzer continue on hormone replacement therapy. While there is no dispute that DOC has provided hormone therapy to Konitzer since December of 1999 (DFOF ¶ 216), the newly enacted Wis. Stat. § 302.386(5m) prevents DOC from continuing the administration of hormones to inmates. The defendants submit that given the new law, and DOC’s obligation to follow the new law, recommendation No. 11 now creates a disputed issue of material fact. A preliminary injunction hearing
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(1986). "[A] party must produce specific facts showing that there remains a genuine issue for trial and evidence 'significantly probative'as to any [material] fact claimed to be disputed." Branson v. Price River Coal Company, 853 F.2d 768, 771-72 (10th Cir. 1988). In order for a party “to avoid summary judgment that party must supply evidence sufficient to allow a jury to render a verdict in his favor.” Williams v. Ramos, 71 F.3d 1246, 1248 (7th Cir. 1995).
Presenting only a scintilla of evidence is not sufficient to oppose a motion for summary judgment. Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). Moreover, more than mere conclusory allegations are required to defeat a motion for summary judgment. Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 840 (7th Cir. 1996).
The requirements for a valid injunction are found in Fed. R. Civ. P. 65(d), which provides, so far as pertinent here, that "[e]very order granting an injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." Fed. R. Civ. P. 65(d). Before a court may award permanent injunctive relief, a party must demonstrate (1) it has succeeded on the merits; (2) no adequate remedy at law exists; (3) the moving party will suffer irreparable harm without injunctive relief; (4) the irreparable harm suffered without injunctive relief outweighs the irreparable harm the nonprevailing party will suffer if the injunction is granted; and (5) the injunction will not harm the public interest. Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998), citing, Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987).
is scheduled for August 24, 2006, to address recommendation No. 11, namely, the continuation of hormone therapy for Konitzer in the wake of Wis. Stat. § 302.386(5m).
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In this case, the scope of injunctive relief must also comply with the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA). The PLRA requires that, prior to granting prospective relief, a court must find that the relief is: (1) narrowly drawn; (2) extends no further than necessary to correct the violation of the Federal right; and (3) is the least intrusive means necessary to correct the violation of the Federal right. 18 U.S.C. § 3626(a)(1). Not only must these findings be made, but the court must also give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Id. Moreover, in order to obtain an injunction an inmate must prove that a prison official is, at the time of trial, “knowingly and unreasonably disregarding an intolerable risk of harm, and…will continue to do so.” Farmer v. Brennan, 511 U.S. 825, 846 (1994).
ARGUMENT
I. THE DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON RECOMMENDATIONS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 AND 14 FOR INJUNCTIVE RELIEF BECAUSE THERE IS NO EVIDENCE THAT THE DEFENDANTS HAVE OR WOULD BE DELIBERATELY INDIFFERENT TO ANY SERIOUS MEDICAL NEED KONITZER MAY HAVE ABSENT SUCH INJUNCTIVE RELIEF.
A. Introduction. Before the court could order any of the injunctive relief sought by Konitzer, he must first succeed on the merits of his Eighth Amendment claim. See Hunter v. Quinlan, 815 F. Supp. 273, 275 (N.D. Ill. 1993). Even though Wis. Stat. § 302.386(5m) may ultimately force Konitzer’s withdrawal from hormone therapy, the undisputed facts in this case support summary judgment on all the remaining recommendations. The court cannot find that the defendants were or would act with deliberate indifferent to Konitzer’s GID absent these specific requests for
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injunctive relief. Therefore, they are entitled to summary judgment on recommendation Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 14.
B. The Constitution does not mandate comfortable prisons where inmates are entitled to the medical treatment of his or her choice.
At the outset, it must be emphasized that this case is about what the Constitution requires. The Eighth Amendment forbids cruel and unusual punishment; it does not require the most intelligent, progressive, humane, or efficacious prison administration. Oliver v. Deen, 77 F.3d 156, 161 (7th Cir. 1996). What Konitzer seeks here is the sort of federal court “micromanagement” of a state prison that the Seventh Circuit deplored in Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995); see Oliver, at 161.
The Constitution "does not mandate comfortable prisons," Rhodes v. Chapman, 452 U.S. 337, 349 (1981), but neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). It is well established that prisoners have a right to receive adequate medical care. Estelle v. Gamble, 429 U.S. 97 (1976). There can be little doubt that this right encompasses a right to receive mental health treatment. Jones 'El v. Berge, 164 F. Supp.2d 1096 (W.D. Wis. 2001) (citing Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.1987); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983)). But see Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002) (prisoners "do not have a fundamental right to psychiatric care at public expense") (dicta) (emphasis in original).
The Supreme Court’s decision in Wilson v. Seiter, 501 U.S. 294 (1991), makes it clear that there is both an objective component of an prisoner’s Eighth Amendment claim (was the deprivation sufficiently serious?), as well as a subjective component (did the official act with a sufficiently culpable state of mind?). Id. at 298. After incarceration, only the unnecessary and
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wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize conduct prohibited by the Cruel and Unusual Punishment Clause. Whitley v. Albers, 475 U.S. 312, 319 (1986). Therefore, it is necessary that an inquiry into the prison official’s state of mind be made when it is claimed that the official has inflicted cruel and unusual punishment. Wilson, 501 U.S. at 299. In the context of provision of medical care to prison inmates, the requisite wantonness is defined as deliberate indifference to a prisoner’s serious medical needs. Estelle, 429 U.S. at 104; Wilson, 501 U.S. at 302.
“Deliberate indifference” is recklessness in the criminal law sense, that is recklessness implying “an act so dangerous that the defendant’s knowledge of the risk [of harm resulting from the act] can be inferred.” Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985). The Seventh Circuit in Duckworth determined that deliberate indifference to an inmate’s safety could not constitute cruel and unusual punishment unless the defendant had “actual knowledge of impending harm easily preventable.” Id. at 653. Ordinary negligence and even gross negligence in the tort sense are not enough. McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991).
A prison inmate’s dissatisfaction with the adequacy of medical treatment actually received does not state a claim under 42 U.S.C. § 1983. Courts will not attempt to second-guess licensed physicians as to the propriety of a particular course of medical treatment for a given prisoner-patient. Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974), vacated on other grounds sub nom Cannon v. Thomas, 419 U.S. 813 (1974) (a difference of opinion does not raise a material issue of fact). A difference of opinion between physician and patient concerning the adequacy of medical treatment actually provided does not rise to a claim under § 1983. Davis v. Schmidt, 57 F.R.D. 37, 41 (W.D. Wis. 1972). Where medical experts disagree, a prison official
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does not act indifferently by following the advice of one of the experts. Thomas, 493 F.2d at 158; Jorden v. Farrier, 788 F.2d 1347 (8th Cir. 1986) (states in dicta that following the advice of one treating medical official over another does not raise a constitutional claim); see also United States v. Rovetuso, 768 F.2d 809, 825 (7th Cir. 1985), cert. denied, 474 U.S. 1076 (1986) (a prisoner has no right to a doctor of his own choice).
Questions of medical judgment simply do not form the basis of Eighth Amendment claims:
[T]he question whether an X-ray–or additional diagnostic techniques or forms of treatment–is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court…. Estelle, 429 U.S. at 107-108. As the Seventh Circuit reformulated the applicable standard, a prisoner alleging that prison officials inflict cruel and unusual punishment must demonstrate that those officials actually wish to harm him, or at least, are totally unconcerned with his welfare. Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). The Supreme Court in Farmer, defined the standard in the following terms: We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837 (emphasis added.) Farmer requires that medical professionals exercise medical judgment. If a decision is made by a health care professional, it is presumably valid. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). The constitution does not require prison officials to administer
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the least painful treatment. Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). The constitution is not a medical code that mandates specific treatment. Id.
C. Defendants have treated Konitzer’s serious medical need and any disagreement over the course of treatment he receives does not constitute deliberate indifference to that serious medical need.
1. Summary of argument. For purposes of this summary judgment only, the defendants do not dispute that Konitzer has a serious medical need given his overall mental health diagnosis and diagnosis of GID. The defendants, however, strongly dispute that they have been deliberately indifferent to Konitzer’s GID and his mental health care, or that the court must order recommendations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 to prevent/cure any Eighth Amendment violation. Konitzer’s treatment in these regards has been constitutionally thorough and complete—a far cry from being a demonstration of deliberate indifference (DFOF ¶¶ 210-589). At its core, this action is nothing more than an attempt by Konitzer to garner his preferred form of “treatment” for GID while at the same time ignoring his more severe and overlaying personality pathologies. Simply put, the defendants disagree with Konitzer’s preferred form of treatment for GID and have instead treated all of his serious medical needs. Given that recommendations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 amount to nothing more than a disagreement over what form of treatment should be implemented, Konitzer fails to state an Eighth Amendment claim. The defendants are entitled to summary judgment.
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2. There is no universal consensus as to what “the” treatment for GID is or what constitutes a medical necessity in the treatment of GID.
There is no dispute that Konitzer has been diagnosed with GID (DFOF ¶ 28).3 However, there is no universal consensus in the psychiatric community about what constitutes “the” treatment for GID or what constitutes medical necessity in the treatment of GID (DFOF ¶ 32). In fact, a patient diagnosed with GID chooses how they want to live the remainder of their life after they have acknowledged that they have GID (DFOF ¶ 33). Each transgendered individual decides which options to pursue and how far and how fast to go with regard to those life-changing options (DFOF ¶ 40). Age, physical characteristics, income, employment, personality, pain tolerance, and desired lifestyle all factor into the equation when a transgendered individual makes his or her decision as to how to live (id.).
The Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Indentity Disorder (“Harry Benjamin standards”) provide guidelines that have been helpful in professionalizing the treatment of GID (DFOF ¶ 30). The Harry Benjamin standards “are intended to provide flexible directions for the treatment of persons with gender identity disorders” (DFOF ¶ 37). The standards provide: “[m]any adults with gender identity disorder find comfortable, effective ways of living that do not involve all the components of the triadic treatment sequence” (DFOF ¶ 38), which is the sequence of hormone therapy, real life experience in the preferred gender, and reassignment surgery discussed in the standards. Hence, for individuals with GID, the Harry Benjamin standards emphasize the person’s choices and options rather than diagnosis that requires necessary “treatment” (DFOF ¶ 35).
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However, the Harry Benjamin standards require being crime free (DFOF ¶ 41). This is without exception accepted as the community standard in gender clinics throughout the world (id.). Prison life presents an inherent and irresolvable contradiction to this standard (id.), and is a context that renders existing standard treatment guidelines for GID unrealistic and impossible (DFOF ¶ 42). New treatment guidelines for GID within prisons, with awareness of and in consideration of the complexities created by that situation, have not been developed (id.).
3. Konitzer’s medical record overwhelmingly demonstrates that he has been receiving care and treatment.
Konitzer is, and has been, receiving exhaustive treatment by the defendants for his mental health needs, including his GID (see DFOF ¶¶ 210-589). This treatment includes countless psychiatric evaluations, physical examinations, hormone therapy4 (most recently in the nonconjugated form), laboratory testing, assessment and reassessment of his prescription medications, referral to the University of Wisconsin Hospitals and Clinic to see an endocrinologist, and consistent follow-up with his treatment providers (id.) The psychiatric and medical care provided to Konitzer has been exhaustive and complete. To now argue otherwise is to simply ignore the voluminous medical record. This is not a case where treatment has been abruptly halted and no treatment provided. See e.g. Wolfe v. Horn, 130 F.Supp.2d 648 (E.D.Pa. 2001). It is precisely the opposite. The court should grant defendants’ motion for summary judgment.
3 GID is defined as a persistent desire to live as a member of the opposite sex (DFOF ¶ 29). The condition is manifested by an intense desire to adopt the social role, and to acquire the physical appearance, of the opposite sex (id.). GID is largely a self-diagnosed condition (DFOF ¶ 33). 4 See, note 2, supra.
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4. Disagreements over Konitzer’s course of treatment do not constitute an Eighth Amendment violation.
Simply put, Konitzer’s requests reflect a desire to be more comfortable in prison and receive his preferred form of treatment for GID. Once again, this amounts to nothing more than a disagreement about Konitzer’s treatment, not whether the defendants have been deliberately indifferent to him. Although the government has a duty to provide medical care for those it punishes by incarceration, Snipes, 95 F.3d at 590, it is equally true that a prisoner is not entitled to whatever treatment he desires. Means v. Cullen, 297 F. Supp.2d 1148, 1154 (W.D. Wis. 2003). “[D]ifferences in opinion between the patient and the doctor [regarding medical treatment] never give rise to a constitutional claim.” Higgins v. Correctional Medical Services of Illinois, Inc., 8 F. Supp.2d 821, 830 (N.D. Ill. 1998). Hence, no Eighth Amendment claim lies to support a court order implementing recommendations Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, or 14. Just because Konitzer believes he has a right to a particular type of treatment for GID, that particular type of treatment does not set the parameters of the Eighth Amendment. In fact, just the opposite is true.
For instance, case law from analogous Eighth Amendment cases is in accord with defendants’ position here. Transsexual inmates have no constitutional right to any particular type of treatment. Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987); Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986); Lamb v. Maschner, 633 F. Supp. 351 (D. Kansas 1986); White v. Farrier, 849 F.2d 322, 327 (recognizing other courts’ holdings that inmates are not constitutionally entitled to hormone therapy); Tiller v. Owens, 719 F. Supp. 1256, 1308 (W.D. Penn. 1989); Long v. Nix, 877 F. Supp. 1358 (S.D. Iowa 1995). Moreover, the controlling case in the Seventh Circuit is even more deferential to the defendants.
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In Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997), a prisoner sought estrogen therapy
under the Eighth Amendment for his gender dysphoria. The court affirmed dismissal of the case,
holding that:
except in special circumstances that we do not at present foresee, the Eighth Amendment does not entitle a prison inmate to curative treatment for his gender dysphoria.
Id. at 672. In so holding, the court reasoned that:
A prison is not required by the Eighth Amendment to give a prisoner medical care that is as good as he would receive if he were a free person, let alone an affluent free person. (Citation omitted). He is entitled only to minimum care.
Id. at 671. The court went on to state:
Gender dysphoria is not, at least not yet, generally considered a severe enough condition to warrant expensive treatment at the expense of others than the person suffering from it. That being so, making the treatment a constitutional duty of prisons would give prisoners a degree of medical care that they could not obtain if they obeyed the law.
Id. at 672.
Here, Konitzer and his experts disagree with the defendants and their experts about the
proper course of mental health treatment (see DFOF ¶¶ 44-71, 130-131, 150, 176, 186-188, 209).
While Konitzer’s expert, Dr. Randi Ettner, advocates allowing Konitzer to feminize his
appearance, be treated as a female, and to see GID medical and mental health specialists, the
defendants have instead (and quite properly) focused Konitzer’s treatment on adjustment rather
than cross gender transition (DFOF ¶¶ 50, 61). Instead of concentrating solely on Konitzer’s
GID, the defendants have also been treating Konitzer’s other mental health needs. These mental
health needs include the following DSM-IV Axis I and Axis II diagnoses: Cocaine Dependence
in Remission in a Controlled Environment, Post Traumatic Stress Disorder, Major Depression,
and Personality Disorder with Cluster B traits (DFOF ¶ 43).
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Defense expert Professor Cynthia Osborne believes this is a clinically sound and ethically wise stance (DFOF ¶ 61). For Konitzer, treatment must be carefully designed to address not just the GID, but GID in the context of severe and overlaying personality pathologies (DFOF ¶ 49). In the opinion of Professor Cynthia Osborne, to not do so will likely result in disappointing outcomes for both Konitzer and the defendants (id.). Juxtaposed with Osborne’s opinion is that of Konitzer’s own expert, Dr. Randi Ettner. However, Dr. Randi Ettner does not even know the status of Konitzer’s medical treatment, does not have experience treating incarcerated individuals, and has never made a finding as to what was causing Konitzer to experience extreme stress and psychological distress (DFOF ¶¶ 51, 53, 55). Any recommendations regarding Konitzer’s course of treatment ring particularly hollow when his own expert knows so little about him and his treatment.
Defense expert, Dr. Daniel Claiborn, is in accord with Professor Osborne. Dr. Claiborn asserts that Konitzer manifests severe and chronic personality disorders, characterized by selfcenteredness, drama, volatile emotions, and erratic behaviors. The very nature of these combined personality disorders (Antisocial, Borderline, Histrionic, and Narcissistic) militates against honest self-exploration, trust, commitment, and taking responsibility for change (DFOF ¶ 46). According to Dr. Claiborn, Konitzer’s Antisocial Personality Disorder is his most severe disorder (DFOF ¶ 47). Since Konitzer has other more severe disorders in addition to GID, it logically follows that defendants’ course of treatment is appropriate and not an example of deliberate indifference.
As for any of Konitzer’s potential medical needs, Konitzer’s expert, Dr. Frederic Ettner, recommends specific types of medical treatment for Konitzer (DFOF ¶¶ 62). However, he wavers on whether such recommendations are even medically necessary (DFOF ¶¶ 62-71). This
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is not surprising since there are no “official” guidelines for the best medical treatment of male-tofemale transsexuals (DFOF ¶ 63). This of course begs the following questions: How can the defendants be acting deliberately indifferent toward Konitzer’s GID when there are no official guidelines for treating male-to-female transsexuals? How can the defendants be acting deliberately indifferent toward Konitzer’s GID when his very own expert concedes that his recommendations are not even medically necessary? The answer to both questions is that they cannot.
Konitzer’s complaint that defendants are being deliberately indifferent to his GID by not implementing recommendations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 simply does not hold any water. It ignores the voluminous medical record detailing the thorough and complete psychiatric and medical treatment that Konitzer has received. This is not a case in which the defendants have done nothing for Konitzer or ignored Konitzer. On the contrary. The defendants have provided treatment for Konitzer’s long list of disorders and continue to do so. With little doubt, the type of care and attention that Konitzer has received has gone far beyond the type of care and attention he would have received if he had not been in state custody over the past decade. In addition, a disagreement between experts over what treatment Konitzer should receive does not state an Eighth Amendment violation. In turn, Konitzer’s request for injunctive relief on recommendations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 fails. Konitzer’s request for injunctive relief goes way beyond what the Eighth Amendment requires, is overly broad, and overly intrusive. Defendants’ motion for summary judgment must be granted.
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II. THE COURT SHOULD DECLINE TO ISSUE INJUNCTIVE RELIEF AND NOT ADOPT THE RECOMMENDATIONS THAT ONLY FEMALE OFFICERS CONDUCT STRIP SEARCHES OF KONITZER, PROVIDE HIM MAKEUP, PROVIDE HIM FEMALE UNDERGARMENTS, A FEMALE NAME, AND THE USE OF HAIR REMOVAL/GROWTH PRODUCTS BECAUSE SUCH RECOMMENDATIONS ARE CONTRARY TO WRC AND DOC’S LEGITIMATE INSTITUTIONAL INTERESTS AND BEYOND THE SCOPE OF INJUNCTIVE RELIEF ALLOWED UNDER THE PLRA.
A. Introduction. In his Complaint, Konitzer alleges that the defendants have implemented policies that conflict with his needs as a biological male inmate with GID (Third Amended Complaint). Presumably, these would include conditions of Konitzer’s confinement that are contrary to recommendations made by Konitzer’s experts. These conditions include: (a) the requirement that Konitzer be searched by same-sex guards (male) (contrary to recommendation No. 3); (b) the prohibition of possession and use of makeup (contrary to recommendation No. 5); (c) the prohibition of possession and use of female undergarments (contrary to recommendation No. 6); (d) the prohibition of use of a female name since such name would be considered a false names or title (contrary to recommendation No. 8); and (e) the denial of hair removal and/or hair growth products (contrary to recommendation Nos. 9 and 12). The policies supporting these types of conditions, however, are reasonably related to legitimate institutional interests in safety, security, management, and administration. Therefore, they do not violate the Eighth Amendment, regardless of Konitzer’s desired treatment.
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B. When determining whether an inmate’s conditions of confinement violate the Constitution, security concerns of correctional officials must be given great deference.
1. Deference to prison officials’ decisions regarding security is essential.
Courts are obligated to defer to prison officials'adoption of policies necessary to preserve
security and internal order. Hewitt v. Helms, 459 U.S. 460, 474 (1983). In the prison environment,
"safety of the institution's guards and inmates is perhaps the most fundamental responsibility of the
prison administration." Id. at 473.
"[P]rison officials are to remain the primary arbiters of the problems that arise in prison
management." Shaw v. Murphy, 532 U.S. 223, 230 (2001).
Judges should be cautious about disparaging disciplinary and security concerns expressed by the correctional authorities. American jails are not safe places, and judges should not go out of their way to make them less safe.
Keeney v. Heath, 57 F.3d 579, 581 (7th Cir. 1995).
The nature of operating a penal institution, including the management of inmates and prevention of escapes, requires "moment-to-moment decisions and crisis management" which requires that correctional officers have discretion on how they will deal with any situation that arises.
Ottinger v. Pinel, 215 Wis. 2d 266, 279, 572 N.W.2d 519 (Ct. App. 1997) (quoting from Barillari
v. City of Milwaukee, 194 Wis. 2d 247, 260, 533 N.W.2d 759 (1995)).
In determining whether prison policies are reasonably related to the government's interests
in maintaining security and order and operating the institution in a manageable fashion, courts heed
the Supreme Court's admonition that "[s]uch considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the absence of substantial evidence in the
record to indicate that the officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such matters." Childs v. Duckworth, 705 F.2d - 18 -
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915, 920 (7th Cir. 1983); Pell v. Procunier, 417 U.S. 817, 827 (1974); Bell, 441 U.S. at 540 n. 23.
As stated in Turner v. Safley, 482 U.S. 78, 84-85 (1987):
A second principle identified in [Procunier v.] Martinez, [416 U.S. 396 (1974)] ... is the recognition that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform." As the Martinez Court acknowledged, "the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree." Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.
(Citations omitted.)
An illustration of judicial restraint comes from Sandin v. Conner, 515 U.S. 472 (1995).
There, the Court overturned the rule in Hewitt that mandatory prison regulations created protectible
liberty interests in prisoners. In doing so it said:
Second, the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little off-setting benefit to anyone. In so doing, it has run counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.
515 U.S. at 482.
The Seventh Circuit has identified as "the animating theme" of the Supreme Court's prison
jurisprudence for the last 20 years as being "the requirement that judges respect the hard choices
made by prison administrators." Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995) (emphasis in
the original). As indicated, Sandin expresses disapproval of excessive judicial involvement in
day-to-day prison management, which often squanders judicial resources with little offsetting
benefit to anyone. 515 U.S. at 482. Remember, these are convicted felons who have lost some of
their rights. Imprisonment "necessarily makes unavailable many rights and privileges of the
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ordinary citizen, 'a retraction justified by the considerations underlying our penal systems."'Wolf v. McDonnell, 418 U.S. 539, 555 (1974).
2. When determining the constitutionality of a prisoner’s conditions of confinement courts must always give great deference to security concerns and corrections officials’ obligation to take reasonable measures to protect prisoners from violence at the hands of other prisoners.
Like most other claims under the Eighth Amendment, a claim asserting cruel and unusual conditions of confinement must satisfy a two-part test, with a subjective and an objective component. Farmer, 511 U.S. at 835. Generally, the standard for determining whether prison conditions satisfy the objective component of the Eighth Amendment focuses on whether the conditions are contrary to “the evolving standards of decency that mark the progress of a maturing society.” Id. at 833-834 (internal quotations omitted). To meet this standard, the deprivation must be “extreme;” mere discomfort is not sufficient. Hudson v. McMillan, 503 U.S. 1, 8-9 (1993). “Only those deprivations denying the minimal civilized measures of life’s necessities … are sufficiently grave to form the basis of an Eighth Amendment violation.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) quoting, Wilson v. Seiter, 501 U.S. 294, 298 (1991).
The duty imposed by the Eighth Amendment on prison officials to “provide humane conditions of confinement,” Farmer, 511 U.S. at 832, requires prison officials to take reasonable measures to “’protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S.823 (1988)). Violent assaults, of course, are not “part of the penalty that criminal offenders pay for their offenses.” Rhodes v. Chapman, 452 U.S.337, 347 (1981).
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A prison official may enact a security measure, even one that impinges on medical needs,
if the measure "was applied in a good faith effort to maintain or restore discipline." Whitley v.
Albers, 475 U.S. 312, 320-21 (1986). In such situations, an official is liable only for acting
"maliciously and sadistically for the very purpose of causing harm." Id. Constraints facing a
prison official are relevant to whether his conduct can be characterized as "wanton." Wilson, 501
U.S. at 303. Thus, the "realities of prison administration" are relevant to the issue of deliberate
indifference. Helling v. McKinney, 509 U.S. 25, 37 (1993).
Hence, prison officials, acting reasonably and in good faith, do not violate the Eighth
Amendment because the resulting infliction of pain on the inmate would not be unnecessary or
wanton. Rather, such a decision would be reasonable. Prison officials who act reasonably cannot
be found liable under the Cruel and Unusual Punishments Clause. Farmer, 511 U.S. at 845.
In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’…a standard that incorporates due regard for prison officials’ ‘unenviable task of keeping dangerous men in safe custody under humane conditions.’
Id. (citations omitted); see also White v. Farrier, 849 F.2d 322, 325 (8th Cir.1988) ("Denial of
medical care that results in unnecessary suffering in prison is inconsistent with contemporary
standards of decency and gives rise to a cause of action under 42 U.S.C. § 1983. Actions without
penological justification may constitute an unnecessary infliction of pain.") (emphasis added).
C. Preventing Konitzer from possessing makeup, female undergarments, and hair growth/removal products in a male prison is reasonably related to WRC and DOC’s legitimate interests in safety and security.
Preventing Konitzer from possessing makeup, female undergarments, and hair
growth/removal products in a male prison is reasonably related to WRC and DOC’s legitimate - 21 -
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interests in safety, security, and fair administration. The reasons supporting DOC’s position are many. See also Star v. Gramley, 815 F.Supp. 276, 278 (C.D.Ill. 1993) (denial women’s makeup and apparel at male prison upheld); Wolfe v. Horn, 130 F.Supp.2d 648, 654 (E.D.Pa. 2001) (denial of female clothing and makeup is not a constitutional violation); Lamb v. Maschner, 633 F. Supp. 351 (D. Kansas 1986) (denial of female clothing and cosmetics to GID inmate not a constitutional violation); Long v. Nix, 86 F.3d 761 (8th Cir. 1996) (denial of women’s clothing and makeup upheld); Murray v. United States Bureau of Prisons, 106 F.3d 401, 1997 WL 34677 (deprivation of hair and skin products for GID inmate do not state a constitutional claim. Cosmetics are not among the civilized measure of life’s necessities as to be required under constitution).
Allowing Konitzer these items would create a serious security risk. When an inmate enhances his differences in appearance or identity, such as appearing more feminine in a male prison population, it significantly increases the likelihood that the inmate will be the target of aggression or the center of conflict among the prison population. The inmate’s use of female undergarments, the use of hair removal products, and makeup gives a loud message to all observers. It says to all inmates that the person is of the female gender and is available for sexual conduct. It is seen by all inmates as an open invitation to compete for that person’s attention and invites assaults (DFOF ¶ 81). The consequences of providing Konitzer with property items typically associated with females, such as makeup and female undergarments, while he is housed in a male correctional environment, could compromise his safety and security, especially considering his lengthy sentence structure (DFOF ¶ 84). It is not unusual to find that over 50% of the incidents of violence in prison are related to sexual partnering among inmates where conflict has developed in the form of jealous partners, failed relationships, or competition from
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other inmates. (DFOF ¶ 90). The level of risk of incidents of violence in prison is further elevated when any of the participants have a history of violent, assaultive behavior, such as Konitzer (DFOF ¶ 91).
Allowing Konitzer to have these items would also interfere with fair administration of the institution. Anytime an inmate is the recipient of an exception to rules and practices, then all other inmates immediately consider themselves candidates for the same exceptions. The logical extension of flexing the rules for all inmates, in operational terms, can be a condition that is unsafe and unmanageable in the correctional environment (DFOF ¶ 82). Prison riots often times occur because staff may not be uniformly enforcing rules. This creates tension within the inmate population and confusion among staff (DFOF ¶ 83). Any time an inmate is allowed to make himself a target of attention by enhancing his femininity in the form of clothing and makeup, it automatically increases the work demand of existing staff resources (DFOF ¶ 95). The feminization of an inmate increases the work demand of existing staff resources by: creating additional property management challenges such as making sure that an inmate is not doing a brisk business in the sales or bartering of cosmetics or undergarments; resolving disputes over who is eligible to possess such items and who is not eligible; determining whether hair removal products or hair growth stimulators are an appropriate product for the general inmate population; finding an opportunity for peaceful integration of an inmate to a new living condition as he is being moved from another location; or continuously observing an inmate based upon a perception of increased risk (DFOF ¶ 96). Staff resources that would be required due to the increases of work demand created by the feminization of an inmate are exceptional, and staff will be drawn from attending to other operational duties in the institution that are also likely to involve safety and control (DFOF ¶ 97). The logical extension of flexing the rules for all inmates,
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in operational terms, can be a condition that is unsafe and unmanageable in the correctional environment (DFOF ¶ 101). See also DFOF ¶¶ 81-109; 170; 181.
Allowing makeup also creates a security risk because Konitzer could use it to disguise his appearance and escape from the institution (DFOF ¶ 177). For example, an inmate at Waupun Correctional Institution almost successfully escaped from that institution after a visitor of the inmate came in and provided makeup to the inmate. This inmate almost made it past the guard station wearing the makeup that made him look like a female visitor (DFOF ¶ 178). When correctional staff is trained to look for males leaving the institution, it is much more difficult when they have to be concerned about males made up to look like females. (DFOF ¶ 179). Given Konitzer’s sentence structure and escape history, he is classified as a high risk for an escape attempt (DFOF 180) and it would make absolutely no sense to allow him to possess makeup. It could not only be used to disguise his identity, but it could also be used to feign an injury, such as a black eye, in order to lure a staff member or other inmate in their room (DFOF ¶ 185).
Allowing makeup could also put Konitzer in a position of being in control of something that other inmates may want (DFOF ¶ 182). Contraband moves, and Konitzer could be offered money for things that other inmates want. This would put him in a power position over other inmates (DFOF ¶ 183). Allowing Konitzer to possess makeup could create a black market for people wanting it. (DFOF ¶ 184). 5
5 Dr. Randi Ettner does not believe that makeup, per se, treats GID. (DFOF ¶ 186). In Dr. Claiborn’s opinion, the use of makeup is a choice on the part of Konitzer’s and a privilege with possible safety ramifications. There is no reasonable basis for considering this a necessary “treatment” for GID. (DFOF 188). The same is true regarding female undergarments (DFOF ¶¶ 160-61) and hair products (DFOF ¶¶ 198-209).
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D. Refusing to accommodate Konitzer’s request to be searched by female guards only is reasonably related to WRC and DOC’s legitimate penological interests in prison management, administration, and security.
Refusing to accommodate Konitzer’s request to be searched by female guards only is reasonably related to WRC and DOC’s legitimate penological interests in prison management, administration, and security. DOC rules require that a person of the same sex as the inmate being searched conduct the strip search, although any staff member may conduct pat searches (DFOF ¶ 121). Although WRC does not and will not tolerate deliberate mistreatment related to strip searches conducted on Konitzer, such as unnecessary onlookers, WRC will not adopt practices that are different from DOC related to strip searches (DFOF ¶ 122). It is essential that WRC staff treat DOC inmates under its control in a consistent manner. If staff were to treat inmates differently or grant special favors, it would become a serious management issue and would compromise the ability of staff to maintain order in the facility (DFOF ¶ 123).
In addition, it would become a difficult management issue if WRC were required to have only female officers strip search and pat search Konitzer. This is because officers are assigned to a certain post and have certain job responsibilities (DFOF ¶ 124). Each correctional institution is operated with a specific number of established “Posts.” These are locations where specific tasks are performed critical to the safe and controlled operation of the facility (DFOF ¶ 125). It is essential that the posts in correctional institutions remain in operation. Staff is seldom pulled from posts except in the most extreme circumstances (DFOF ¶ 126). Institution shift commanders must have the discretion to make assignments as he or she sees fit (DFOF ¶ 127).
It is not possible for DOC to ensure that Konitzer be pat searched or strip searched only by female staff. Staffing patterns and staff resources may not allow for this to occur. The
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availability of female correctional officers is controlled by the number of female officers employed at an institution, and staff who may be on leave. Labor contracts also affect the number of male and female correctional staff at institutions. There may be occasions when a female on any given shift is not available due to these factors (DFOF ¶ 137). To create work positions merely for the purpose of ensuring that a female is available at all times to pat search or strip search Konitzer is impractical and cost prohibitive (DFOF ¶ 138).
Another management issue that would arise if WRC were required to have only female officers strip search and pat search Konitzer would be the effect that it would have on the rest of the inmate population. WRC houses many people who would much rather be searched by females than by males for reasons not related to GID (DFOF ¶ 128). This creates a managerial problem and security risk because once you treat one inmate with special favors, other inmates will feel entitled. This creates disorder in the prison and therefore, a security risk (DFOF ¶ 129).
Finally, Konitzer’s situation is not unique or new to DOC. There have been other inmates with breast development or gender issues that have been managed in adult male institutions. These inmates have been safely managed without special accommodations for searches. Male officers perform the strip searches of these other inmates with breast development or gender issues (DFOF ¶ 136).6
6 Dr. Randi Ettner cannot predict that being searched by a male guard would cause Konitzer to inflict harm, only that it would be extremely agitating for Konitzer (DFOF ¶130). In Dr. Claiborn’s opinion, requiring that Konitzer be searched only by female security officers does not constitute a necessity and cannot be construed at “treatment” for Konitzer. Dr. Claiborn believes that examination by male personnel will not harm Konitzer (DFOF ¶ 131).
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E. Refusing to accommodate Konitzer’s request to be referred to by a female name is reasonably related to WRC and DOC’s legitimate interests in prison management and administration.
1. Allowing Konitzer the use of a female name would create a security risk, cause administrative problems, and give him special privileges in comparison to other prisoners.
Allowing Konitzer the use of a female name would create a security risk, cause administrative problems, and give him special privileges in comparison to other prisoners. Konitzer wants WRC staff to address him by using a female name and female pronouns. However, Konitzer is in a male institution and he was incarcerated under the name of Scott Konitzer (DFOF ¶ 145). WRC already accommodates Konitzer. Staff refers to him as “Konitzer,” avoiding the use of his legal first name, Scott (DFOF ¶ 149).
Calling inmates by names other than their legal names creates order and maintenance issues at a prison. It presents identity problems, escape issues, and power and control issues with inmates. Staff needs to know who an inmate is at all times wherever they are, and they need to be accountable for the inmate’s first and last name and inmate number. That is how WRC identifies people, how staff maintains order, and how staff ensures that inmates do not have power over other inmates (DFOF ¶ 147).
Administrative code provisions and policies are also designed to protect the public. Allowing inmates to identify themselves as something other than their legal name would enable them to misrepresent themselves to the public and could lead to predatory behavior and victimization (DFOF ¶ 153). Wisconsin Administrative Code § DOC 303.31 makes it a disciplinary offense for any inmate to use a name other than the name by which the inmate was committed to the department unless the name was legally changed. This is uniformly enforced
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for legitimate penological purposes (DFOF ¶ 151). Allowing inmates to use nicknames or other titles would allow inmates to have a power relationship relative to other inmates. In the past, inmates have used these terms to exert their will, control, influence and power over other inmates (DFOF ¶ 152).
In addition, the database system used by DOC’s Division of Adult Institutions (CIPIS) does not allow for more than one name to be used for the DOC number assigned to the offender. This system carries essential information concerning each inmate offender, including background information, convictions, institutional transfer histories, and program review actions (DFOF ¶ 155). DOC staff needs to be able to quickly and uniformly identify any given inmate at any given time in order access essential information about the inmate. If an inmate does not use their legal name, staff may be delayed in finding, utilizing, and recording necessary information, including inmate health records, security information, disciplinary records, and other records that are necessary in order for DOC to perform its necessary duties and obligations in a timely fashion (DFOF ¶ 156).
Allowing an inmate to use a name other than his legal name could also cause tracking problems for victim notifications. Victims may be confused if a notification letter came that did not have the offender’s legal name listed. In addition, if a victim is not already in the system but later wishes to enroll for notification and only provides the inmates’ old name, DOC may have difficulty finding the offender in the system (DFOF ¶ 157).
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2. The court is prevented from issuing an order requiring the defendants and everyone else from referring to Konitzer by a female name under the Rooker-Feldman doctrine.
Among the recommendations made by Konitzer’s expert Dr. Randi Ettner is that the court order the defendants and everyone else to refer to Konitzer by a female name. Presumably this name is “Donna Dawn Konitzer.” However, such a request is inextricably intertwined with the state court petition for a name change that took place and which was ultimately denied (DFOF ¶¶ 141-44). Therefore, the Rooker-Feldman doctrine is controlling, and this court lacks subject matter jurisdiction to collaterally review the appropriateness of that state court determination.
The Rooker-Feldman doctrine is based on 28 U.S.C. § 1257, which grants the Supreme Court jurisdiction to review the decisions of the highest state courts for compliance with the Constitution. See 28 U.S.C. § 1257; District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 467 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). In Rooker, the Supreme Court held that no matter how wrong a state court decision may have been, a federal district court had no jurisdiction to reverse or modify it. Rooker, 263 U.S. at 415-416; Garry v. Geils, 82 F.3d 1362, 1366 (7th Cir. 1996). The Feldman Court similarly held that federal district courts "do not have jurisdiction . . . over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional." Feldman, 460 U.S. at 486. The Rooker-Feldman doctrine has since emerged to stand for the proposition that lower federal courts do not have authority to review the judgments of the state courts even when a federal question is presented. Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 700 (7th Cir. 1998). If the injury complained of resulted from the state court judgment itself, or if the plaintiffs ask the district court to consider collateral attacks on
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state court judgments, the doctrine will apply. See GASH Assocs. v. Village of Rosemont, 995 F.2d 726, 727 (7th Cir. 1993).
The Rooker-Feldman doctrine extends beyond issues actually raised in state court to issues that are "inextricably intertwined" with the state court proceedings. Feldman, 460 U.S. at 483 n.16; Johnson v. Collins, 58 F. Supp. 2d 890, 897 (N.D. Ill. 1999). The Seventh Circuit noted that there is "no bright line that separates a federal claim that is 'inextricably intertwined' with a state court judgment from a claim that is not so intertwined." Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993). The crucial point is whether the district court is in essence being called upon to review the state-court judgment. Id. Thus, while 42 U.S.C. § 1983 creates a civil cause of action against public officials for violating a person's constitutional rights, that cause of action is constrained by the jurisdictional principles of Rooker-Feldman. Young v. Murphy, 90 F.3d 1225, 1230-31 (7th Cir. 1996).
Konitzer has already litigated a petition for a name change in Brown County Case No. 00 IP 32 captioned In the Matter of a Change of Name of Scott Allen Konitzer, where he requested that his name be changed to Donna Dawn Konitzer (DFOF ¶ 141). Through this action, a state court was called on to determine both Konitzer’s rationale for wanting the name change, and DOC’s rationale for opposing such a change (see DFOF ¶ 142). As such, the present request to be referred to as “Donna Dawn Konitzer” is "inextricably intertwined" with the state court proceedings. Konitzer is, in essence, requesting a federal district court to review the state-court judgment denying his name change petition. This is not permissible under the Rooker-Feldman doctrine, and summary judgment is proper.
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CONCLUSION This court should grant the defendants’ motion for partial summary judgment as to the plaintiff’s request for injunctive relief to implement recommendations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14. Dated at Madison, Wisconsin, this 28th day of February, 2006.
PEGGY A. LAUTENSCHLAGER Attorney General
S/JODY J. SCHMELZER Assistant Attorney General Jody J. Schmelzer State Bar No. 1027796 Attorneys for Defendants Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-3094 FAX (608) 267-8906 schmelzerjj@doj.state.wi.us
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

DONNA DAWN KONITZER a/k/a Scott Konitzer,
Plaintiff,
v.
MATTHEW J. FRANK, TOM MICHLOWSKI, MARIO CANZIANI, SHARON ZUNKER, TOM SPEECH, DAVID BURNETT, and BYRAN BARTOW,
Defendants.

Case No. 03-C-717

DECISION ON GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. # 155) Plaintiff1, an inmate at the Wisconsin Resource Center (WRC), is proceeding
on a Third Amended Complaint, pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1983, claiming the defendants are violating rights secured to the plaintiff by the Eighth Amendment of the United States Constitution. The Third Amended Complaint charges that the defendants are subjecting the plaintiff to cruel and unusual punishment by failing to administer proper treatment for the plaintiff’s Gender Identity Disorder ("GID") and is seeking an order:

1Konitzer is a m ale-to-fem ale transsexual who has been prescribed fem inizing horm ones for several years and feels like a wom an trapped in a m an's body. W hile the court recognizes that this action was filed by Konitzer under the apparent chosen nam e of Donna Dawn, Konitzer remains a biological male. Therefore, for clarity, this decision will utilize male pronouns where appropriate, although the court is sensitive to Konitzer's preference.
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(1) enjoining the defendants, their employees, agents and successors in office from providing medical care and treatment to the plaintiff that is inconsistent with the standards of medical care and treatment for GID in the State of Wisconsin as a whole;
(2) enjoining the defendants, their employees, agents and successors in office from refusing to provide and delaying provision of necessary medical treatment and care for GID to the plaintiff either at suitable and adequate facilities within the WRC or elsewhere;
(3) enjoining the defendants, their employees, agents and successors in office from failing to instruct, supervise and train their employees and agents in such a manner as to assure the delivery of medical treatment and care to the plaintiff which is consistent with the standards of medical care in the State of Wisconsin as a whole;
(4) establishing an independent panel of medical experts to regularly evaluate the delivery of medical treatment and care to the plaintiff and ensuring compliance with court orders respecting this matter; and
(5) awarding the costs and expenses of this action. The defendants disagree and are asking for partial summary judgment dismissing all but one of the plaintiff’s claims for injunctive relief.
I. STANDARD FOR SUMMARY JUDGMENT Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
2
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McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991). "Material facts" are those facts that, under the applicable substantive law, "might affect the outcome of the suit." See Anderson, 477 U.S. at 248. A dispute of "material fact" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The burden of showing the needlessness of trial—(1) the absence of a genuine issue of material fact; and (2) an entitlement to judgment as a matter of law—is upon the moving party. However, when the opponent is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267; see also Celotex Corp., 477 U.S. at 324 (stating that "proper" summary judgment motion may be "opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings"). "Rule 56(c) mandates the entry of summary judgment, . . . upon motion, against a party who fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322.
In evaluating a motion for summary judgment, courts draw all inferences in a light most favorable to the nonmoving party. Johnson v. Pelker, 891 F .2d 136, 138 (7th Cir. 1989). "However, we are not required to draw every conceivable inference from the record—only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (citation omitted).
II. RELEVANT UNDISPUTED FACTS2
2 Facts are taken from the July 15, 2005 Defendants' Proposed Findings of Fact and February 28, 2006 Amendm ent to Defendants' Proposed Findings of Fact, both of which are cited as "DFOF". Facts are also taken from the October 3, 2005 Plaintiff's Proposed Findings of Fact, the April 28, 2006 Amended and Additional Proposed Findings of Fact, and the November 28, 2006 Plaintiff's Proposed Findings of Fact in Support of Surreply in Opposition to Defendants' Motion for Sum m ary Judgm ent, all of which are
3
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A. Background Konitzer was first committed to the Wisconsin Department of Corrections (DOC) in April 1982. (DFOF ¶ 1.) Between April 1982 and May 1993, Konitzer was housed in several DOC correctional institutions, having been released on three separate occasions. (DFOF ¶ 2.) He escaped from custody in May 1991, and was unaccountable until being captured on May 28, 1991. Id. Konitzer's most recent period of incarceration began December 20, 1994, following a conviction on three counts of armed robbery masked; three counts of armed robbery; one count of armed robbery—repeater; and one count of possession of a firearm by a felon. (DFOF ¶ 3.) He is serving a 128-year sentence and is eligible for parole on June 10, 2026. (DFOF ¶ 4.) Konitzer's maximum release date is February 9, 2081, whereas his maximum discharge date is June 11, 2122. Id. At an early age, Konitzer did not feel comfortable as a biological male. (PFOF ¶ 34.) Often, he would dress in his sister's clothes and wear his mother's makeup. Id. Most of the time, Konitzer kept his discomfort about his body to himself. (PFOF ¶ 35.) When he told his parents that he felt like a girl, his stepfather tried to convince him otherwise and beat him when that failed. Id. While serving a previous sentence, Konitzer told prison psychiatrists that he believed he was a transsexual. Id. A February 13, 1988, clinical dictation by Pauline Thome states: Mr. Konitzer was found guilty of making a weapon. He appealed but the appeal was denied. During the appeal, he
cited as "PFOF".
4
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said he was making a weapon to disguise the fact that he was making stockings for himself with the shirts. By admitting what he was doing, Mr. Konitzer broke a 10 year secret about his transsexualism. Mr. Konitzer does not experience a conflict about his sexual identity, only a conflict about bringing it out in the open. He feels extremely threatened by the possibility that other inmates will know about his transsexual behavior, and his homosexual inclination. (PFOF ¶ 37, Cothroll Decl. ¶ 4, Ex. 208, Bates No. 2668-69.) In 1993, Konitzer began seeking treatment for GID at Pathways Counseling Center in Milwaukee. (PFOF ¶ 38.) Pathways evaluated Konitzer and determined that he suffered from GID, placed him in group therapy, and referred him for hormone therapy. Id. During that time, Konitzer began referring to himself as Donna, initiated electrolysis, dressed as a woman, and sought relationships with friends who supported his belief that he was a woman. Id. About three months into the hormone therapy, Konitzer was introduced to cocaine by a friend, Kelly Stark. (PFOF ¶ 40.) Stark pressured Konitzer to quit hormone therapy in hopes of an intimate relationship with her. Id. Addicted to cocaine, Konitzer ceased taking his female hormones and stopped attending therapy sessions at Pathways, thereby causing his female development to end. (PFOF ¶ 41.) While on cocaine, Konitzer committed several crimes which led to his arrest in June 1994 and the sentence he is now serving. (PFOF ¶ 42.) Konitzer has been housed at various DOC correctional institutions, including Dodge Correctional Institution (DCI), Waupun Correctional Institution (WCI), Green Bay Correctional Institution (GBCI), the Wisconsin Resource Center (WRC), and Columbia Correctional Institution (CCI). (DFOF¶ 7.) While incarcerated at GBCI, Konitzer used a
5
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razor blade to cut open his scrotal tissue, leaving one testicle exposed and losing a lot of blood. (DFOF ¶ 47.) On September 5, 2002, he was moved to the WRC due to disfigurement attempts involving use of a nail clipper to wound his scrotum. (DFOF ¶ 10.)
The WRC is part of the Department of Health and Family Services (DHFS), Division of Disability and Elder Services and provides mental health treatment to the DOC inmates as its primary mission. (DFOF ¶ 12-13.) The DOC and the DHFS employees work at the WRC. (DFOF ¶ 14.) The DOC employees include security staff, namely, the captains, the sergeants, and the correctional officers.
Defendant Byran Bartow has been employed by the DHFS as Director of the WRC since approximately March 28, 2000. (DFOF ¶ 15.) As Director, Bartow manages the WRC. (DFOF ¶ 16.) He is involved in policy making and signs all the WRC policies and procedures, including those related to treatment. Defendant Mario Canziani has been employed by the DHFS as the WRC Security Director since August 1996. (DFOF ¶ 17.)
There are approximately 344 DOC inmates housed in the WRC for mental health care programs, and 60 patients detained or committed as sexually violent persons under Wis. Stat. Chapter 980. (DFOF ¶ 18.) Only male inmates and patients are housed at the WRC. (DFOF ¶ 19.) Typically, inmates are transferred to the WRC when they exhibit mental health problems in the prison environment, such as withdrawn or unresponsive demeanor and adjustment difficulties, including suicide attempts. (DFOF ¶ 20.) The DOC is required to provide the WRC with referral information, but there are no strict diagnostic criteria required of the DOC inmates transferred to the WRC. (DFOF ¶ 21.) The WRC conducts intake and does an assessment of new inmates, which includes
6
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medication review and psychiatric evaluations. (DFOF ¶ 22.) Inmates are then placed in a program or series of programs which staff believe best meet their needs.
The DOC does not establish policies at the WRC, but the WRC adheres to the DOC's policies and administrative rules, except when the issue is central to the mental health care of the inmates housed at the WRC. (DFOF ¶ 23.) Eventually, most inmates at the WRC are transitioned back to the DOC. (DFOF ¶ 24.) The WRC administrators believe it is in the best interests of inmates that they are treated no differently at the WRC than they would be at the DOC because consistent treatment makes it easier for the inmate to transition back into the DOC. Also, they believe that if inmates were treated differently, other inmates may be encouraged to seek transfers to the WRC by acting out in a manner that would facilitate their transfer to the WRC and delay their return to the DOC. Thus, the WRC attempts to maintain as much of a prison environment as possible for safety, as well as for treatment and inmate management. (DFOF ¶ 26.)
B. Gender Identity Disorder The DOC diagnosed Konitzer with GID in December 1999 and the DOC has prescribed hormone therapy since that date. (PFOF ¶ 2; DFOF ¶ 28; DFOF ¶¶ 210-303.) Konitzer feels "trapped in the wrong body." (PFOF ¶ 3.) The disconnect between Konitzer's male body and his female identity causes him a great deal of stress, and he has been diagnosed with post traumatic stress disorder. (PFOF ¶ 4.) To relieve this stress, Konitzer has tried to live as a female while in prison. Id. GID is a rare disorder with an approximate incidence between 1 in 11,900 to 45,000 in males and 1 in 30,000 to 100,000 in females. (PFOF ¶ 6.) Persons with GID are uncomfortable being regarded by others, or functioning in society, as a member of their
7
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designated sex. (PFOF ¶ 5.) Some persons with GID seek hormonal and surgical treatments to alleviate their discordance. Id.
The Diagnostic and Statistical Manual, Fourth Edition ("DSM-IV"), is a manual that lists various mental health conditions and is used to standardize diagnoses and to provide a reference point respecting diagnoses, including GID. (PFOF ¶¶ 14-15.) The DSM-IV defines GID as: (1) A strong and persistent cross-identification (not merely a desire for any perceived cultural advantage of being the other sex) manifested by symptoms such as a stated desire to be the other sex, frequent passing as the other sex, desire to live or be treated as the other sex, or the conviction that he or she has the typical feelings and reactions of the other sex; (2) Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex manifested by symptoms such as preoccupation with getting rid of primary and secondary sex characteristics (e.g., request for hormones, surgery, or other procedures to physically alter sexual characteristics to simulate the other sex) or belief that he or she was born the wrong sex; (3) The disturbance is not concurrent with a physical intersex condition; and (4) The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. (PFOF ¶ 16.)
The DSM-IV sub-classifies a GID patient by the patient's sexual preference as attracted to males, attracted to females, attracted to both, or attracted to neither. (PFOF ¶ 17.) The sub-classification was intended to assist in determining, over time, whether individuals of one sexual orientation or another experienced better outcomes using particular therapeutic approaches; it was not intended to guide treatment decisions. (PFOF ¶ 18.) Id.
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The Harry Benjamin International Gender Dysphoria Association's Standards
of Care for Gender Identity Disorders, Sixth Version, February 2001 ("Standards of Care")3,
provide in relevant part:
The Purpose of the Standards of Care. The major purpose of the Standards of Care (SOC) is to articulate this international organization's professional consensus about the psychiatric, psychological, medical, and surgical management of gender identity disorder. Professionals may use this document to understand the parameters within which they may offer assistance to those with these conditions. Persons with gender identity disorders, their families, and social institutions may use the SOC to understand the current thinking of professionals. All readers should be aware of the limitations of knowledge in this area and of the hope that some of the clinical uncertainties will be resolved in the future through scientific investigation.
The Overarching Treatment Goal. The general goal of psychotherapeutic, endocrine, or surgical therapy for persons with gender identity disorders is lasting personal comfort with the gendered self in order to maximize overall psychological well-being and self-fulfillment.
The Standards of Care Are Clinical Guidelines. The SOC are intended to provide flexible directions for the treatment of persons with gender identity disorders. When eligibility requirements are stated they are meant to be minimum requirements. Individual professionals and organized programs may modify them. Clinical departures from these guidelines may come about because of a patient's unique anatomic,
3 The parties dispute the relevance of the Standards of Care to the professional treatm ent of individuals with GID. According to the defendants, the Standards of Care provide guidelines that have been helpful in professionalizing the treatm ent of GID. (DFOF ¶ 30.) The defendants further assert that the Standards of Care have no regulatory authority and there is not universal consensus in the psychiatric comm unity about what constitutes "the" treatm ent for GID or what constitutes medical necessity in the treatment of GID. (DFOF ¶¶ 31-32.)
The plaintiff disputes that the Standards of Care are merely helpful guidelines. According to Konitzer, the Standards of Care were designed to present professional consensus about psychiatric, m edical, and surgical managem ent of gender conditions—referred to as the "Triadic Treatm ent”—and the param eters within which professionals could offer services to individuals. (PFOF ¶ 20.) Typically, the Triadic Therapy takes place in the order of: 1) horm ones, 2) real-life experience, and 3) surgery. (PFOF ¶ 24.) A GID patient, however, may undergo a variety of different therapeutic options because clinicians recognize that not all persons with GID need or want all three elem ents of Triadic Therapy. (PFOF ¶ 25.)
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social, or psychological situation, an experienced professional's evolving method of handling a common situation, or a research protocol. These departures should be recognized as such, explained to the patient, and documented both for legal protection and so that the short and long term results can be retrieved to help the field to evolve.
The Clinical Threshold. A clinical threshold is passed when concerns, uncertainties, and questions about gender identity persist during a person's development, become so intense as to seem to be the most important aspect of a person's life, or prevent the establishment of a relatively unconflicted gender identity. The person's struggles are then variously informally referred to as a gender identity problem, gender dysphoria, a gender problem, a gender concern, gender distress, gender conflict, or transsexualism. Such struggles are known to occur from the preschool years to old age and have many alternate forms. These reflect various degrees of personal dissatisfaction with sexual identity, sex and gender demarcating body characteristics, gender roles, gender identity, and the perceptions of others. When dissatisfied individuals meet specified criteria in one of two official nomenclatures - the International Classification of Diseases 10 (ICD-10) or the Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM-IV) they are formally designated as suffering from a gender identity disorder (GID). Some persons with GID exceed another threshold - they persistently possess a wish for surgical transformation of their bodies.
Two Primary Populations with GID Exist - Biological Males and Biological Females. The sex of a patient always is a significant factor in the management of GID. Clinicians need to separately consider the biologic, social, psychological, and economic dilemmas of each sex. All patients, however, should follow the SOC.
. . . .
After the diagnosis of GID is made the therapeutic approach usually includes three elements or phases (sometimes labeled triadic therapy): a real-life experience in the desired role, hormones of the desired gender, and surgery to change the genitalia and other sex characteristics.
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. . . . Many persons with GID will desire all three elements of triadic therapy. Typically, triadic therapy takes place in the order of hormones => real-life experience => surgery, or sometimes: real-life experience => hormones => surgery. . . . . However, the diagnosis of GID invites the consideration of a variety of therapeutic options, only one of which is the complete therapeutic triad. Clinicians have increasingly become aware that not all persons with gender identity disorders need or want all three elements of triadic therapy. (George Daley Dep., Sept. 10, 2004, Ex. 12, Bates No. 5478-80.) When Konitzer's current period of incarceration began, he did not have any female development. (PFOF ¶ 43.) Following his convictions, Konitzer's gender dysphoria did not subside, and his distress worsened because he was living as a male. (PFOF ¶ 45.) Konitzer tried to obtain hormone therapy while incarcerated at WCI, but his request was denied by a nurse. Id. In November 1999, Konitzer wrote defendant Sharon Zunker, then Director of the Bureau of Health Services, requesting hormone therapy and an orchiectomy. (PFOF ¶ 46.) The request proved unsuccessful. Id. However, on December 8, 1999, Dr. Metodio Reyes requested authorization to continue Konitzer's hormone therapy. (DFOF ¶ 214.) The next day, DOC Medical Director George Daley approved the request. (DFOF ¶ 215). While at GBCI, Konitzer also requested the opportunity to live as female, and sought the help of Dr. Gerald Wellens in obtaining makeup and female undergarments. (PFOF ¶ 60.) Dr. Wellens was unable to assist Konitzer in obtaining makeup or female undergarments and was told by GBCI Warden Daniel Bertrand, "if you let one inmate wear
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a bra and panties, then they'll all want to wear a bra and panties." (PFOF ¶ 62.) Afterward, Konitzer would make cosmetics and find ways to obtain female undergarments. (PFOF ¶ 63.)
On April 27, 2000, Konitzer received an adult conduct report at GBCI for wearing a bra. (PFOF ¶ 66.) While at GBCI, Dr. Wellens observed that Konitzer wore makeup regularly. (PFOF ¶ 64.) On October 4, 2000, GBCI Deputy Warden Michael Baenen wrote Konitzer that "[a] prohibition against make up at work is not a prohibition against make up in your cell or other areas." (PFOF ¶ 65.) According to Dr. Randi Ettner, living as a female consolidates the female identity for the male-to-female transsexual and creates harmony between outward appearance and inner self.4 (PFOF ¶ 61.)
On June 15, 2000, Dr. Laurens D. Young, Chief Psychiatric Consultant to the DOC, wrote Sharon Zunker informing her that in addition to Konitzer, two other inmates in the DOC system on hormone therapy had mutilated their genitals and that such behavior was typical for patients with GID. (PFOF ¶ 69.)
In early January 2001, Konitzer attempted suicide at GBCI by trying to hang himself. (PFOF ¶ 70.) Konitzer felt depressed over incidents of sexual assault involving a GBCI prison guard, and because he felt that he was not receiving the proper treatment for his GID. Id. In late January 2001, Konitzer cut skin away from his scrotum and tied a
4Dr. Randi Ettner is a practicing clinical psychologist and a practicing forensic psychologist, who provides diagnoses, psycho assessm ents, and treatments for persons with mental illnesses. (PFOF ¶ 50.) Forensic psychologists are trained to understand the interface between psychology and the law. (PFOF ¶ 51.) She has published numerous papers and books on the subject of GID, including research every two years at the meeting of the Harry Benjam in International Gender Dysphoria Association. (PFOF ¶ 53.) Dr. Ettner sees patients approxim ately 60% of the tim e and has acted in an expert capacity in legal matters including four or five cases involving gender identity issues. (PFOF ¶¶ 54-55.) Dr. Ettner has authored Confessions of a Gender Defendant: Psychologist's Reflection on Life Am ongst the Transgendered, and Gender Loving Care: A Guide to Counseling Gender Variant Clients. (PFOF ¶ 56.)
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cord around his testes to cut off the blood flow because he hated living as a male. (PFOF ¶ 71.) Konitzer was transported to a hospital in Green Bay for treatment of the genital wound. (PFOF ¶ 72.) Prior to transferring Konitzer to the hospital, female guards at GBCI conducted a strip search. Id. Konitzer's self-mutilation required transfer to the University of Wisconsin Hospital where surgeons removed Konitzer's left testicle and portions of the right testicle after obtaining court authorization. The hospital went to court after Konitzer insisted on removal of both testicles. (PFOF ¶¶ 83-84.) Konitzer was taken to the WRC following release from the hospital. Id.
When Konitzer was transferred to the WRC, he had three sets of women's underwear, three bras, one nightgown, and six sets of men's bikini style underwear. (PFOF ¶ 73.) The WRC confiscated these items as unallowable property. Id. On February 19, 2001, Konitzer filed an offender complaint stating that Steve Hamilton of the WRC had confiscated the six sets of men's bikini underwear as female clothing and that they should be returned. (PFOF ¶ 74.) The complaint was affirmed and staff returned the underwear to Konitzer. Id.
An Inmate Classification Summary for the WRC states that during staffing for Konitzer's case on March 8, 2001, Dr. Arong stated she believes Konitzer is stable for transfer. (PFOF ¶ 75.) She added that it is possible he will attempt to hurt himself again due to his gender identity disorder. Id. On May 1, 2001, Deputy Warden Baenen wrote Konitzer stating: "You further raise the issue of wearing make up and being searched by female officers. Clearly you did do both of these at GBCI. The issue, however, is not whether this ever happened, but whether it was sanctioned as part of institutional policy
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while you were here. The answer to that question is no, neither was sanctioned." (PFOF ¶ 76.)
On March 25, 2003, Dr. Kevin Kallas wrote to Konitzer, noting his six attempted self-castrations and self-penectomy. (Cothroll Decl. ¶ 4, Ex. 203, Bates No. 5402-03.) Dr. Kallas stated that "[t]his letter is in response to your correspondence with Governor Jim Doyle," and that "[y]ou state that treating you as a male has caused you six attempted self-castrations and one instance of attempting to cut your penis off." Id.
In July 2003, Konitzer attempted suicide at the WRC by standing in a bucket of water and dropping a plugged-in alarm clock. (PFOF ¶ 88.) Staff at the WRC turned off the power, however, before the alarm clock reached the water. Id. Shortly thereafter, Konitzer again attempted suicide by crushing his hyoid bone in his neck with a nylon cord. (PFOF ¶ 90.) Konitzer attempted suicide because he did not want to live life as a male. (PFOF ¶¶ 89,91.)
Konitzer's March 28, 2005, Revised Release Transfer Summary states that his self-abusive behavior does not result from any form of manipulation, but appears to result from a sense of hopelessness that causes self-destructive feelings. (PFOF ¶ 92.) WRC Security Director Canziani is aware of one of Konitzer's self-castration attempts and one of his suicide attempts (PFOF ¶ 93), and Director Bartow recalls Konitzer's suicide and castration attempts (PFOF ¶ 94). According to Dr. Tom Speech, Konitzer had a long history of attempted self-castration, which as a form of self-injury was a concern to the WRC staff. (PFOF ¶ 95.) Dr. Thomas Michlowski, a psychiatrist and Medical Director of the WRC, knows that attempted castration has been an issue for Konitzer from time to time, and is aware that Konitzer attempted suicide at the WRC. (PFOF ¶ 97.)
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On May 15, 2006, in an effort to further alleviate his gender dysphoria, Konitzer attempted to castrate his remaining teste. (PFOF ¶ 209.) Konitzer's attempt resulted in his transfer to Theda Clark Medical Center in Neenah, Wisconsin. Id. There, on May 16, 2006, doctors surgically removed Konitzer's remaining testicle. Id.
Since May 17, 2006, shortly after his castration attempt, Konitzer has lived in a WRC cell containing a private toilet. (PFOF ¶ 210.) A window shutter over the door prevents other inmates from viewing Konitzer in compromising situations, such as when he uses the toilet, but staff are still able to see him during rounds. Id. Although some inmates have made comments to Konitzer about his living situation, none have been negative, nor has Konitzer been assaulted since May 17, 2006. Id.
Around the same time, on or about March 17, 2006, the WRC medical staff requested that Konitzer be referred to the University of Wisconsin endocrinology clinic ("UW") for "recommendations on dosages of medication, estrogen, etc." (Id.; Konitzer Suppl. Decl., Ex. 217.) The request further stated that the WRC "will be required to withdraw Estrogen. Please recommend method and associate [sic] medical problems." Id.
In September 2006, Dr. Roger Kulstad of the UW Hospital recommended that Konitzer receive Vaniqa cream, a hair growth retardant, for folliculitis (hair follicle infection) on his face. (PFOF ¶ 214.) In addition, Dr. Kulstad recommended Rogaine and a bra, noting with respect to the latter that Konitzer receive "a bra for adequate breast support. Breasts are Tanner IV consistent with adult female. This is medically necessary." Id. On September 28, 2006, UW Hospital issued an Endocrine-Diabetes Consult Note signed by the attending endocrinologist, Dr. Elaine M. Pelley. Id. The Note reiterates Dr. Kulstad's
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previous recommendations regarding Vaniqa and a bra. Id. In the Note, Dr. Pelley stated that she agreed "with [Dr. Kulstad's] findings and plan as outlined above." (Id.; Cothroll Surreply Decl. ¶ 2, Ex. 218 at UW 467.)
C. DOC Policy The DOC has in place Executive Directive #68. (DFOF ¶ 72.) This directive is entitled "Scope of Services for Treatment of Gender Identity Disorder."5 (Bartow Dep.,

5Executive Directive #68 provides:

SUBJECT: Scope of Services for the Treatm ent of Gender Identity Disorder

I.

Background

It is the policy of the W isconsin Departm ent of Corrections (DOC) to provide appropriate treatm ent services to offenders m eeting the criteria for a diagnosis of gender identity disorder (DSM-IV 302.85). Practitioners shall take correctional and comm unity standards of care into consideration when providing treatment services.

II.

Definitions

Diagnostic and Statistical Manual, 4th Edition, Revised (DSM-IV): The standard manual of psychiatric diagnoses and classification codes.

Gender Identity Disorder: A psychiatric disorder in which a person is not satisfied and is seriously dysphoric with regard to their anatom ical gender. In general, this condition is a stable, nonviolent condition and not due to psychosis, but it may accompany other mental disorders.

Hormonal Therapy: The use of hormones to stimulate the development of secondary sexual characteristics such as enlargement of breasts and which may exert systemic effects such as body hair loss.

Sexual Reassignment Therapy: Treatm ent for gender identity disorder in which one or m ore of the following are used: horm onal m edications, surgical procedures to alter a person's physical appearance so that he/she appears m ore like the opposite gender and psychological counseling.

II. [sic] Guidelines

A. No surgical procedures for the purpose of sexual reassignment shall be provided to any offenders incarcerated in the W DOC.

B. After consultation with the Gender Identity Disorder Comm ittee, horm onal therapy for severe gender dysphoria may be initiated by the W DOC physicians. The Gender Identity Disorder Com m ittee will consult with a non-W DOC consultant before approving or denying a request from a W DOC physician for initiating horm onal therapy. If the Com m ittee and the non-W DOC consultant do not agree regarding initiating horm onal therapy for severe gender dysphoria, the DOC Medical Director and non-W DOC Consultant will meet with the Secretary's Office to reach a decision.

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C. An offender who is receiving horm onal m edications as a part of an established sexual reassignm ent therapy regim en under the supervision of a m edical doctor at the tim e of incarceration m ay be continued on horm onal m edications provided that the offender cooperates with the DOC in obtaining confirm ation of his/her previous treatm ent. If an offender chooses to discontinue horm onal medications and then wishes to restart horm onal medications, the com m ittee referenced below will evaluate the request and m ake a determ ination.
D. The offender m ust agree to sign DOC-1163, Confidential Inform ation Release Authorization, allowing DOC m edical and mental health staff access to medical and mental health records regarding all prior treatm ent related to gender identity disorder.
E. Offenders identified or claim ing to suffer from gender identity disorder shall have access to the full range of m ental health therapies available through the W isconsin DOC. They shall have access to therapies in which they m ay explore their am bivalence, confusion and conflict around sexual identity as well as those services focusing on enabling those with identifiable mental health problem s to better adjust to institutional living.
F. Self-inflicted genital m utilation or other form s of self-m utilation are not consistent with successful sexual reassignment therapy.
Facility Placement
A. In the event that an offender who has completed a surgical sexual reassignment treatm ent program is com m itted to the DOC, that offender shall be placed in a correctional facility appropriate for his/her reassigned gender.
B. In general, offenders shall be placed in facilities in accordance with their gender as determined by their external genitalia.
Name and Apparel for Inmates with Gender Identity Disorder
A. The DOC shall use the name of the offender as it appears on the Judgement [sic] of Conviction. The only exception to a name change will be through an order of a judge to have the name of the offender legally changed after the Judgement [sic] of Conviction. A new Judgement [sic] of Conviction must be issued or the court order must specifically state "change all records".
B. Property and apparel shall be consistent with the offender's determ ined gender.
Gender Identity Disorder Management and Treatment Committee
A. Composition: The Com m ittee shall be com posed of the DOC Medical Director, the DOC Mental Health Director, the Bureau of Health Services Director or designee, an assigned doctoral prepared psychologist, and a W arden or designee. In addition, a m edical specialist in the treatm ent of gender identity disorder from the com m unity m ay be retained as a consultant on specific cases. If the offender is identified as a sex offender, the Chief Psychologist, Sex Offender Specialist shall participate as a member.
B. Function: The com m ittee shall be convened to address issues in the managem ent of individuals with gender identity disorder after review and referral by the medical director, m ental health director or Bureau director. Inm ates may be referred to the m edical director, m ental health director or bureau director to address issues of concern through the com m ittee by institution W ardens or their designees.
The com m ittee shall advise the medical director or treating physician on issues such as appropriate diagnoses, complications of treatm ent, m anagem ent issues, and/or the design and im plem entation of a plan of care.
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Sept. 9, 2004, Ex. 6.) Executive Directive #68 was the result of a collaborative effort by DOC health services staff, DOC's chief psychiatrist, other DOC psychiatrists and psychologists, and members of the DOC executive staff. (DFOF ¶ 73.) According to defendant Sharon Zunker, DOC Health Services Coordinator, the policy was based upon the input of the "executive staff who reviewed this policy and procedure, including wardens and other members of the executive staff at the time." (Zunker Dep. at 76.) Executive Directive #68 was signed by then DOC Secretary Jon E. Litscher on December 17, 2002. (DFOF ¶ 74.) Prior to January 24, 2006, the effective date of Wis. Stat. § 302.386(5m), Executive Directive #68 allowed for hormonal therapy to be initiated by a DOC physician for inmates with severe gender dysphoria. (DFOF ¶ 75.)
Gender dysphoria is a broader term that includes GID. (DFOF ¶ 77.) Under Executive Directive #68, offenders are placed in facilities in accordance with their gender as determined by their external genitalia. (DFOF ¶ 78.) The WRC has directed its staff to treat Konitzer as a male in all respects. (DFOF ¶ 80.)
The WRC will not deviate from general corrections practice regarding the management of an inmate's mental illness unless it considers the departure to be central to the mental illness at issue. (PFOF ¶ 100.) Bartow, as the leader of the WRC, has decided that the WRC will not treat any male inmate as a female and will not do so in Konitzer's case because of DOC policy. (PFOF ¶ 101.) Regarding the prospect of treating Konitzer as a female, Bartow maintains that "if our team was convinced and had a convincing argument that is what really needed to be done for his case, I would arrange to
(Bartow Dep., September 9, 2004, Ex. 6.)
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have him go somewhere else, by whatever means it took, because we don't do that here." (Bartow Dep. at 136; PFOF ¶ 102.)
In discussing Konitzer's therapy sessions to address his disorders, Dr. Speech testified: "From our point of view, you're in a male correctional facility, and it looks like you're going to be there a very long time. And what we can do is help you adjust to that. We can help you cope with having a gender identity disorder under those circumstances." (Speech Dep. at 49-50; PFOF ¶ 109.) When asked whether he had explored the options of allowing Konitzer to wear makeup, to wear female attire or to be referred to as a female, defendant Dr. Speech testified: "We determined that since the Department of Corrections did not allow any of those things, that it would be inappropriate to allow Konitzer to do any of that here, because he's going to go back to an environment where he only stands to lose all of those things, which would be a significant setback to him, particularly given his emotional makeup and his diagnoses. That would be setting him up for failure when he returns. He would become extremely angry is our belief and we would be right back where we started, just setting him up for frustration." (Speech Dep. at 57-58; PFOF ¶ 110.)
In 2002, the WRC clinical staff suggested to DOC staff treatment strategies such as "allowing Mr. Konitzer to wear female clothing or undergarments as a reward for lack of self-mutilation, or having us pursue sex reassignment surgery." (Kallas Dep. at 62; PFOF ¶ 111.) On October 8, 2002, Dr. Speech wrote Dr. Kallas stating that he had "reservations about not having female staff present at searches. This provision was set up for our protection as much as for the protection of the inmates." (Speech Dep. Ex. 41, Bates No. 5444; PFOF ¶ 112.) Dr. Kallas testified that Dr. Speech made the recommendations for female clothing and sex reassignment surgery, but that the DOC would not implement
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any of them because of the DOC policy and that the correctional environment would not allow the WRC's suggestions. (PFOF ¶ 113.) Konitzer continues to wear makeup and feminize his appearance at the WRC, despite the policy against him possessing and wearing feminine items. (PFOF ¶ 121.)
D. Expert Opinions The WRC staff diagnosed Konitzer with the following DSM-IV Axis I diagnoses in addition to GID: cocaine dependence in remission in a controlled environment, post traumatic stress disorder, and major depression, as well as the DSM-IV Axis II diagnosis of personality disorder with cluster B traits. (DFOF ¶ 43.) Cynthia Osborne, a psychotherapist and assistant professor in the Department of Psychiatry & Behavioral Sciences at Johns Hopkins University School of Medicine, has a similar opinion and believes that Konitzer meets the criteria for DSM-IV Axis II diagnoses of antisocial personality and borderline personality disorder. (DFOF ¶¶ 44, 45.) Because of the presence of Axis II symptomatology, Osborne is uncertain whether Konitzer's GID is the "cause" of his disruptive, suicidal, or self-harming behaviors. (DFOF ¶ 54.) In the view of Dr. Daniel Claiborn, who has a Ph.D. in counseling psychology and is a licensed psychologist in Kansas and Missouri, Konitzer manifests severe, chronic "Cluster B" personality disorders, characterized by self-centeredness, drama, volatile emotions, and erratic behaviors.6 (DFOF ¶¶ 46,48.) Morever, Dr. Claiborn opines that these combined personality disorders (antisocial, borderline, histrionic, and narcissistic)
6 It is undisputed that Dr. Claiborn did not interview Konitzer, despite stating that it was his practice to do so in alm ost every case in which he was retained as an expert, and that he only had not interviewed a subject when he was asked to review another expert's report or determine whether another evaluation of the subject was warranted. (Claiborn Dep. at 25-26, 51-52, 54.)
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militate against honest self-exploration, trust, commitment, and taking responsibility for change. Id. Further, Dr. Claiborn believes antisocial personality disorder is Konitzer's most severe disorder. (DFOF ¶ 47.) It is Dr. Claiborn's opinion that Konitzer's treatment must be designed carefully to address GID in the context of severe and overlaying personality pathologies and that failure to do so will likely result in disappointing outcomes for Konitzer and the State of Wisconsin. (DFOF ¶ 49.)
Randi Ettner, Ph.D., who was retained by Konitzer, recommends that Konitzer receive the following treatment for GID: (1) evaluation by a physician who specializes in the care of GID patients so that Konitzer's hormonal protocol can be accurately reconfigured; (2) follow-up with the same medical specialist every six months, or as necessary; (3) non–medical security examinations should be executed by female correctional personnel; (4) periodic access to a mental health care giver with expertise in treatment of this class of disorder, i.e. a member of the Harry Benjamin International Gender Dysphoria Association; (5) access to a modest amount of make-up; (6) use of female undergarments; (7) privacy toilet and showering; (8) the ability to use a female name in addressing oneself, and to be so addressed by others; (9) the ability to use products such as depilatories and/or hair growth stimulators that are harmless and enhance one's ability to live in the preferred gender role. (DFOF ¶ 50.) However, she does not know the exact status of Konitzer's medical treatment and it is beyond her experience to comment on Konitzer's particular hormone treatment. (DFOF ¶ 52.) Nonetheless, Dr. R. Ettner believes it is not malpractice for an endocrinologist to treat a patient who has GID even though they have not done that before. (DFOF ¶ 56.) Dr. R. Ettner does not have experience treating individuals while they
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are incarcerated or in prison security issues or prison administration, and only interviewed Konitzer once at the WRC. (DFOF ¶ 55.)
In the opinion of Dr. Claiborn, physicians who are generally informed about transsexualism and consult with an endocrinologist are competent to help Konitzer make informed decisions about his treatment options. (DFOF ¶ 57.) Psychologists are not allowed to practice outside their areas of expertise, but, in Dr. Claiborn's opinion, education and familiarity are sufficient qualifications for a mental health provider to help Konitzer consider his options within the prison system. (DFOF ¶ 60.) Dr. Claiborn opines that mental health personnel should have an understanding of the prison resources and of techniques for helping individuals adjust to circumstances beyond their control, whatever those might be. Id. Mental health personnel in prisons and working with Konitzer should also have familiarity with personality disorders. Id.
In the opinion of Osborne, focusing Konitzer's treatment on adjustment rather than cross gender transition is a clinically sound and ethically wise stance. (DFOF ¶ 61.)
Frederic Ettner, M.D. was also retained by Konitzer and recommends that Konitzer receive the following protocol: (1) complete physical examination and laboratory testing including hormonal assessment; (2) HRT (hormone replacement therapy), specifically non-conjugated estrogens, i.e. estradiol valerate (bio-identical) in the form of patch, gel, or cream; (3) anti-androgen finasteride to block exogenous androgens and stimulate scalp hair and decrease body hair; (4) consistent follow-up every three months; and (5) coordination with psychiatrists and psychological recommendations. (DFOF ¶ 62.) It is the view of Dr. F. Ettner that a medical doctor may give Konitzer a complete physical examination and laboratory testing including hormonal assessment, and that it is not
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necessary that the doctor have expertise in GID to perform this. (DFOF ¶ 65.) Dr. F. Ettner concedes that Konitzer probably could have conjugated estrogens for a period of time until stabilized, and then after a period of perhaps a year or two, could easily be transferred to a non-conjugated estrogen. (DFOF ¶ 66.)
According to defendants' expert Dr. Samuel Westrick, there are no "official" guidelines for the best medical treatment of male-to-female transsexuals but a few authors have published recommendations based on their considerable experience with these patients. (DFOF ¶ 63; Westrick Dep., May 16, 2005, Ex. 88 at 2.) Consensus exists among experts that estrogen therapy is a cornerstone of treatment for a male-to-female individual with GID, while nuances of type and dose remain controversial, or at least subject to much diversity of opinion. (DFOF ¶ 64.)
From a psychiatric perspective, hormones are not prescribed to a male-to-female GID patient for feminization per se. (DFOF ¶ 67.) Rather, hormones are prescribed to reduce symptoms of dysphoria and to improve function. Id. Osborne also opines that while feminization may be the male-to-female GID patient's desire, the clinically neutral clinician is invested only in assisting the patient to function better, to adjust to his environment, and to ameliorate to the greatest extent possible dysphoria and any co-morbid symptoms. (DFOF ¶ 68.)
With regard to the administration of anti-androgen finasteride to block exogenous androgens, stimulate scalp hair and decrease body hair, Dr. F. Ettner believes that finasteride is not absolutely necessary for the treatment of transgendered males to females. (DFOF ¶ 69.) Dr. F. Ettner testified:
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In the standards of care, it is recommended that it [finasteride] be utilized. Is it absolutely necessary? If it wasn't available in her part of the universe, no, it would not be absolutely necessary. One could utilize other hormones to help treat the gender dysphoria, but certainly if it is available, it should be looked into and utilized.
(F. Ettner Dep., May 6, 2005, at 37.) Similarly, in the opinion of Dr. Westrick, it does not
appear there is any rationale to prescribe an anti-androgen agent to Konitzer because there
are no androgens in Konitzer's system causing masculinization. (DFOF ¶ 70.)
As for coordination of Konitzer's psychiatrists and his psychological
recommendations, Dr. F. Ettner acknowledges that phone calls, e-mails or any type of
coordination with someone such as an endocrinologist and a treating psychiatrist would
satisfy Konitzer's treatment needs. (DFOF ¶ 71.) Further, Dr. F. Ettner opines that refusing
to provide Konitzer with the real-life experience puts him at risk for castration and self harm,
and that the frustration of living with an untreated gender condition always has disastrous
consequences. (PFOF ¶ 118.) Dr. F. Ettner testified:
Standard of care does not specify a list of particular ingredients that will create the image that Donna Down Konitzer needs to establish a level of well-being. It does, however, provide a guideline, and in that guideline, the thrust of it is to help these people consolidate an identity that is ego-syntonic and causes them to feel comfortable and safe in this world, therefore, the real-life experience, so they get practice in living 24 hours a day, seven days a week in their preferred gender.
(F. Ettner Dep. at 101; PFOF ¶ 122.)
Dr. Randi Ettner's opinion is that certain things, such as depilatories and hair
growth stimulators, which may appear superficial or not medical, play a very prominent role
in the treatment of GID and allow the patient to move from a discordant and uncomfortable
life that interferes with their functioning into a safer and more comfortable gendered
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ecology. (PFOF ¶ 123.) Moreover, Dr. R. Ettner opines that Konitzer has not received the minimum standard of care for the treatment of GID. (PFOF ¶ 124.) Indeed, she maintains that many of Konitzer's interventions have been counter-therapeutic. Id. It is the view of Dr. R. Ettner that the overarching goal of Konitzer's treatment is to assist him to adapting to life as a male.
Cynthia Osborne advised the DOC to consider: (1) use of the inmate's chosen name and feminine pronouns by all treatment, security and administrative personnel, which can be done without pursuit of a legal name change; (2) the wearing of feminine apparel, such as undergarments, in ways that minimize security risks, for example, Konitzer could be allowed cross dressing opportunities in the privacy of his own room; (3) the use of some items of light makeup in the privacy of his room; (4) the use of Rogaine, hair removal wax, and other products that may assist Konitzer in quieting the dysphoria; (5) the opportunity to shower privately; (6) the assignment of female guards whenever possible to conduct strip searches; and (7) the thorough training of institutional staff to understand GID. (PFOF ¶ 126.) Additionally, Osborne recommends that the DOC consider allowing feminizing strategies that do not constitute a threat to security, interfere with daily operations of prison programs, or undermine the safety, functioning, and options of inmates. (PFOF ¶ 127.) According to Osborne, "I have no clinical opposition to this inmate or some other inmates being accommodated in their gender preferences to a reasonable extent. If it does not put them at risk, or other people at risk, I have no objection." (PFOF ¶ 128.) She added that her opinion was based on the consensus of the collegial community with which she is affiliated. (PFOF ¶ 130.) This collegial community consists of Osborne's colleagues at Johns Hopkins and other colleagues around the nation with whom she consults and shares
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treatment opinions. Id. Every group that operates in this country and abroad in the area of GID is familiar with the Standards of Care and recognizes them as guidelines. (PFOF ¶ 131.)
Osborne admits that the literature says it is appropriate to address a GID patient by their preferred gender name, but she believes it is bad clinical advice. (PFOF ¶ 132.) The only literature that supports her opinion is her article on split gender identity, which was the first to advocate that viewpoint. Id. The article on split gender identity was based upon Osborne and her co-author's observational research and no empirical data. (PFOF ¶ 133.) In defendant Dr. David Burnett's understanding of the Standards of Care, the real-life experience is a legitimate form of treatment for a GID patient, depending upon that person's individual situation. (PFOF ¶ 134.)
Dr. Claiborn testified that, more often than not, he interviews individuals when he prepares an expert report. (PFOF ¶ 135.) However, Dr. Claiborn did not interview Konitzer prior to preparing his report. (PFOF ¶ 136.) Dr. Claiborn has never published or written books on GID, and has seen only about thirty patients with GID over the past twenty years, does not subscribe to any journals specific to GID or belong to any associations specific to GID. (PFOF ¶ 137.) Dr. Claiborn testified that the DSM is an economic and political process, and that many so-called disorders are included in the DSM that are not really disorders or diseases at all and he would include GID as one of those. (PFOF ¶ 138.)
Citing Estelle v. Gamble, 429 U.S. 97 (1976), but admitting that he did not read the case, Dr. Claiborn understands the Eighth Amendment to the United States Constitution to prohibit deliberate indifference to serious medical needs. (PFOF ¶ 140, 142.) Dr. Claiborn explained that "serious medical needs" as outlined in his report focuses on the
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word medical and that a medical need would be one that was resolved through pharmacological or surgical treatment. (PFOF ¶ 141.) In his experience, Dr. Claiborn testified that patients with borderline personality disorder that practice self-mutilation usually do so in the form of wrist slitting. (PFOF ¶ 143.) Dr. Claiborn has never in his experience seen, or heard, of a patient with borderline personality disorder who has attempted genital mutilation, and believes it unusual to see any kind of self-mutilation with a person with antisocial personality disorder. (PFOF ¶ 144.) He does not think that female security examinations, makeup, female clothing, toilet and shower privacy, and referring to Konitzer by a female name is necessary because GID is not a disorder or disease that requires treatment. (PFOF ¶ 145.) Dr. Claiborn does not consider himself to be an expert in prison security, and cannot comment on the issue of what prisons can and cannot do since that is not his area of expertise. (PFOF ¶ 146.)
Osborne, who also stated that she is not an expert in prison security, testified:
A. The presence of sociopathy tendencies does not mean someone has necessarily acted on those behaviorally. This is all a matter of clinical judgment. And I would not, I don't think I have ever recommended full cross gender transition for someone who has severe personality disorder traits. Q. So when you state the Harry Benjamin Standards of Care include a criterion of being crime free, are you referring to, is it your impression that the Harry Benjamin standards require crime free criterion for sex reassignment surgery? A. Yes. I think it is implicit. Q. Would you say that the Harry Benjamin Standards of Care require that a person be crime free for treatments of gender identity disorder other than sex reassignment surgery?
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A. This criteria right here is for hormones. That is a requirement for hormone therapy. So that precedes surgery.
Q. So you are saying then in general the Harry Benjamin Standards of Care require criteria of being crime free?
A. Require is a strong word for something that is a non-regulatory guideline. But this is a recommended way by this foundation of treating GID. And it includes this criterion, suggested criterion that sociopathy be under control. A person who is actively acting out or in prison because they have acted out I would say that is just a major logical contraindication.
(PFOF ¶ 141; Osborne Dep., May 17, 2005, at 134-36.) Osborne opines:
I recommend that the DOC consider allowing feminizing strategies that don't constitute a threat to security, or interfere with daily operations of prison programs, the safety or functioning of inmates, and that don't jeopardize the future options of the inmate. Some accommodation will reduce power struggles, invite better cooperation, and raise the potential for smoother sailing for both the inmate and the DOC. But accommodating strategies should not be confused with medically necessary treatments. Of the hundreds of gender identity disordered patients I have treated and the dozens in my current caseload, none has these kinds of products and services funded by third party payers.
(Osborne Dep., Ex. 95 at 43.)
Dr. R. Ettner testified that simply because a particular treatment is cost
prohibitive, that does not mean it is not medically necessary. (PFOF ¶ 151.) There are
some people who do not have insurance, which makes any medically necessary procedure
prohibitive for them. Id. Moreover, even if the DOC were to change its policy and permit
Konitzer to wear makeup, the final authority as to whether Konitzer could wear makeup at
the WRC rests with Bartow, who is not a clinician. (PFOF ¶ 153.)
Dr. Santos-Borja testified:
Q. . . . Konitzer's self-abuse and self-harm appear to result from a sense of hopelessness that caused self-destructive feelings. What's your sense of what this hopelessness is?
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A. Hopelessness about being confined in a - - his identity as a male, her identity, hopelessness in terms of being confined in prison for a long, long time and not being able to do anything to be able to live as a female. Also some relationships. I don't know, problems, those kinds of things. Q. So hopelessness in the sense that Inmate Konitzer has gender identity disorder and can't do anything about it? A. It's a general sense of hopelessness. It's cumulative. I wouldn't say that it's just because of that particular thing. I think a lot of things makes [sic] Konitzer hopeless. He has a tendency to seek out relationships and there's, you know, very little chance of having a really long-lasting relationship in this kind of setting. (Santos-Borja Dep., April 27, 2005, at 69-70.) Co-morbid disorders mean that an individual has more than one disorder, such as antisocial personality disorder and depression, at the same time. (PFOF ¶ 155.) Dr. R. Ettner would not approach a patient who had GID any differently because that patient might also have other co-morbid personality disorders such as borderline personality disorders. (PFOF ¶ 156.) Just like a medical doctor might see diabetes and GID and Raynaud's syndrome in the same patient, he would not refuse treatment for anyone of those conditions just because they exist in a person simultaneously. (PFOF ¶ 157.) Osborne testified that she is not aware of any antisocial or borderline patient who has auto-castrated, but that she has had GID patients who have done so. Id. Dr. R. Ettner interviewed Konitzer at the WRC and administered the MMPI. (PFOF ¶ 159.) The MMPI confirms that Konitzer is at risk for suicide or castration attempt because it indicates a lot of suicidal ideation and depression. Id. The value of the MMPI is that it is normed (compares results against the same group) for correctional settings.
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(PFOF ¶ 160.) If MMPI test scores are not normed to a matched group that resembles the individual, the scores are meaningless. Id.
Osborne did not administer the MMPI to Konitzer because she is not qualified to administer it. (PFOF ¶ 161.) However, she agrees that the MMPI is normed for the prison population. Id. Instead, Osborne administered the Brief Symptom Inventory, the Derogatis Affects Balance Scale, and the NEO-P-I-R to understand Konitzer's psychological distress. (PFOF ¶ 162.) None of these psychological tests are normed for prison populations. Id.
E. Security The risk of danger to staff and inmates in a correctional environment is higher than most aspects of normal society. (DFOF ¶ 86.) The nature of the correctional environment, particularly in view of recent severe population increases, represents a density of human living conditions that is only comparable to the worst of human slums in major urban areas around the world. Id. The human living conditions in correctional facilities are further aggravated in that this density consists of hundreds of individuals at each institution who have led lives of severe social dysfunction in the form of drug abuse, violence, unstable family relationships, and mental health disorders. (DFOF ¶ 87.) In high security prison populations, nearly forty percent of the inmates have committed acts of violence while incarcerated. (DFOF ¶ 88.) The risk that inmates will commit acts of violence while incarcerated is dramatically elevated by a number of conditions that may or may not be present in the prison population. (DFOF ¶ 89.) One is the presence of lethal weapons in the possession of inmates, another is the possession and sale of illegal drugs by inmates, and another is the sexual behavior among inmates. Id. It is not unusual to find that over fifty percent of the incidents in prison are related to sexual partnering among inmates where
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conflict has developed in the form of jealous partners, failed relationships, or competition from other inmates. (DFOF ¶ 90.) The level of risk of incidents of violence in prison is further elevated when any of the participants has a history of violent, assaultive behavior, such as Konitzer. (DFOF ¶ 91.)
It is the mission and obligation of all American correctional systems to protect inmates and staff from physical harm. (DFOF ¶ 92.) Where inmates show an inclination to be sexually active towards one another, it is common practice for staff to investigate, to be aware, and to take active measures in terms of prevention. (DFOF ¶ 93.) Inmate sexual activity is commonly the subject of administrative discipline. Id. Additionally, corrections staff may elect to separate inmates by a change of cell assignment or cell house assignment. (DFOF ¶ 94.) Where violence appears imminent, inmates may be segregated from others. Id. These are continual practices in an effort to keep the peace in correctional institutions. Id.
The movement of contraband is a security risk at the DOC and the WRC. (DFOF ¶ 110.) Due to the WRC's open treatment philosophy, inmates are moving from area to area in the facility, and some of the inmates are highly dangerous. (DFOF ¶ 111.) The movement of contraband is an even greater concern at the WRC because inmates are housed there to receive programming for mental health and/or behavioral issues, and the WRC does not typically hold inmates in long-term segregation. (DFOF ¶ 112.)
Strip searches are conducted at the WRC when there is reason to believe that contraband could be concealed on the clothing or body of an inmate. (DFOF ¶ 115.) These searches are required any time an inmate leaves or enters the WRC or any time that an inmate is brought to a secure unit. (DFOF ¶ 116.) Strip searches are necessary under
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these circumstances to prevent contraband from being brought into the facility and on secure units. It is particularly important to prevent contraband from being brought on to secure units at the WRC because these are disciplinary units that house highly assaultive or abusive inmates, and contraband must be controlled to prevent injury to inmates and staff. (DFOF ¶ 117.)
Personal searches or pat searches on inmates are required randomly; and each WRC unit has criteria for how many random pat searches staff are expected to conduct. (DFOF ¶ 118.) The WRC staff is expected to stop inmates and to conduct pat searches randomly. Pat searches are also conducted whenever inmates leave work areas, as well as kitchen and maintenance areas to ensure that inmates are not smuggling tools, food, or other things to and from their housing unit. (DFOF ¶ 119.) Moreover, pat searches are done as a general security practice. (DFOF ¶ 120.)
The WRC adheres to the DOC administrative rules when conducting strip searches and pat searches. (DFOF ¶ 121.) These rules require that a person of the same sex as the inmate being searched shall conduct the strip search, although any staff member may conduct pat searches.
DOC Security Chief Daniel A. Westfield testified that contraband can be concealed in body cavities, or taped to the body. For these reasons, strip searches must be conducted in accordance with DOC rules and cannot be compromised for any inmate, including Konitzer. Such searches are unpleasant for both the inmate and the staff. (DFOF ¶ 135.) During a strip search, inmates are required to completely expose body orifices for visual inspection. The entire body of the inmate is to be checked, including armpits, hands, pubic region, between toes, soles of feet, rectum, and inner portion of legs. Consequently,
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DOC rules require that a person of the same sex as the inmate being searched conduct the strip search.
Executive Directive #68 states in part: The DOC shall use the name of the offender as it appears on the Judgement [sic] of Conviction. The only exception to a name change will be through an order of a judge to have the name of the offender legally changed after the Judgement [sic] of Conviction. A new Judgement [sic] of Conviction must be issued or the court order must specifically state "change all records". (Bartow Dep., Sept. 9, 2004, Ex. 6.) Konitzer's name appears as "Scott A. Konitzer" on his Judgments of Conviction dated June 11, 1997, and December 16, 1994. (DFOF ¶ 140.) Konitzer is in a male institution; was incarcerated under the name of Scott Konitzer and the WRC staff is directed not to address Konitzer by any female name or pronoun. Id. However, the WRC partially accommodates Konitzer's request to be referred to as a female is by referring to him as "Konitzer," avoiding the use of Scott. (DFOF ¶ 149.) Pursuant to Executive Directive #68, property and apparel allowed to an inmate shall be consistent with the offender's determined gender. (DFOF ¶ 158.) Gender, under Executive Directive #68, is determined by the inmate's external genitalia. Konitzer is not authorized by the DOC to obtain and wear female clothing while housed at the WRC. (DFOF ¶ 159.) While housed at the WRC, Konitzer is allowed items of clothing and property that males in the DOC prison system are typically allowed. (DFOF ¶ 162.) The WRC conforms its policies related to inmates housed at this facility and allowable clothing and property to the DOC policies and procedures, because eventually most DOC inmates
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housed at the WRC are returned to a DOC correctional institution. The WRC also conforms its policies and procedures related to an inmate's allowed clothing and property to DOC's policies because it is managed as a prison and seeks to avoid wasting resources such as clothing and personal items that an inmate may not retain following transfer to a DOC correctional institution. (DFOF ¶¶ 163-164.)
DOC 309 IMP #2, "Subject: Inmate Personal Clothing," provides a listing of female and male clothing items that DOC inmates are allowed to obtain and possess. (DFOF ¶ 172.) The IMP #2 includes a specific listing of allowed personal clothing items to be obtained and possessed by male and female inmates. (DFOF ¶ 173.) The IMP #2 indicates that only traditional style briefs and boxers are permitted for male inmates, and only traditional style briefs are permitted for female inmates. The IMP #2 does not allow for male inmates to have bras. (DFOF ¶ 174.)
Each WRC housing unit has a separate shower area. (DFOF ¶ 189.) The shower area on Konitzer's housing unit consists of two individual shower stalls with curtains for privacy. These shower stalls are in an area that is "L" shaped, and are located on the right-hand side of the entrance and walkway leading to the stalls. The shower stalls are open daily from 6:00 a.m. until approximately 9:00 a.m. (DFOF ¶ 190.) Only two inmates may shower at a time in the separate shower stalls. WRC unit staff have accommodated Konitzer's request for separate showering hours on his unit, although this has not been provided uniformly. (DFOF ¶191.) Currently Konitzer is allowed to take a daily shower and is able to use the shower area alone with the exterior door leading to the shower stalls secured. (DFOF ¶ 192.) This accommodation for private showering is included in Konitzer's Release/Transfer Summary Inmate form dated March 28, 2005. (DFOF ¶ 193.) The DOC
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represents that it intends to allow Konitzer to shower separately from other inmates when or if he is transferred back to a DOC institution. (DFOF ¶ 194.)
The restroom (toilet area) floor plan on Konitzer's housing unit includes urinals and three individual stalls with doors that secure similar to a public restroom; however, the door to the restroom area is opened to the hallway.7 (DFOF ¶ 195.) Konitzer may use the individual stall and secure the door when using this facility.
In January 2004, Dr. Don S. Schalch, an endocrinologist from the University of Wisconsin Hospital and Clinics recommended that Konitzer be prescribed Rogaine for hair loss. (DFOF ¶ 200.) Dr. Schalch did not believe that Rogaine was necessary to treat functional impairment Konitzer may have. (DFOF ¶ 201.) Rather, it was Dr. Schalch's clinical judgment that it was reasonable for Konitzer to use Rogaine to enhance the amount of his scalp hair.
The DOC considered Dr. Schalch's recommendation to provide Konitzer with the non-formulary medication, Rogaine, but refused to provide it because it was considered a cosmetic for hair loss, and thus would not be a covered benefit provided by the DOC. (DFOF ¶ 203.) Further, the WRC determined that it was not in Konitzer's best interest for it to provide Rogaine, if the treatment would not be allowed to continue following any transfer back to a DOC institution. (DFOF ¶ 204.) Furthermore, female inmates housed at Taycheedah Correctional Institution are not permitted Rogaine or any other type of hair growth stimulators except for medical purposes, and not allowed to purchase and/or use products to decrease or remove unwanted body hair, except for disposable razors. (DFOF
7 As indicated above, since Konitzer's May 17, 2006 castration attem pt, he has lived in a cell at the W RC containing a private toilet. (PFOF ¶ 210.)
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¶¶ 205, 207.) There have been no instances where depilatory products, Rogaine, or Prepuce (finasteride) have been approved for use by any DOC inmate or prescribed for use by any DOC physician or medical professional for the treatment of hair loss. (DFOF ¶ 208.) In any event, Dr. Claiborn opines that hair removal and hair growth products are not required or necessary for Konitzer's mental health. (DFOF ¶ 209.)
Dr. Gerald Wellens, the former Chief Psychologist at GBCI, oversaw the psychological staff and programs at GBCI. (PFOF ¶ 171.) Dr. Wellens also provided direct psychological services to inmates at the institution. Id. Dr. Wellens became involved with Konitzer's case in the fall of 1999 following a self-castration attempt by Konitzer. (PFOF ¶ 172.) At that time, Konitzer had not begun female hormone therapy. Id. In his entire experience in the DOC, this was the only castration attempt that came to Dr. Wellens's attention. Id. Initially, Dr. Wellens referred to Konitzer as "Scott" or "Mr. Konitzer." (PFOF ¶ 173.) After Konitzer corrected him, he quickly began using Donna Dawn or Ms. Konitzer in Konitzer's presence. Id. However, Dr. Wellens was not able to do so in other settings. Id. GBCI would not permit the use of Donna Dawn in any context, and he, along with all staff, was verbally ordered by GBCI's warden at the time, Daniel Bertrand, not to refer to Konitzer as "Donna Dawn" or "DD." Id.
In December 1999, Konitzer was placed on female hormone therapy. (PFOF ¶ 174.) Following the initiation of female hormone therapy, Dr. Wellens observed female development, such as breasts. Id. While the hormone therapy provided some relief, Konitzer remained distressed because he was not allowed to wear makeup or a bra, and could not be referred to by his preferred female name. Id.
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According to Dr. R. Ettner, a gynecomastia vest, a supportive undergarment designed for male breast development, fails to substitute for a bra inasmuch as it does not provide Konitzer with an ego-syntonic state of mind. (PFOF ¶ 179.) It would not satisfy the recommendation that Konitzer be provided with a bra. Id. The importance of the female attire is to provide Konitzer with an ego-syntonic state of mind. Id. Canziani testified that if you provide one inmate with a bra, then others will want them or be able to order them. (PFOF ¶ 188.)
Konitzer is classified as a low risk for escape.8 (PFOF ¶ 191.) WRC staff are supposed to check the identification of persons leaving the WRC. (PFOF ¶ 192.) Women prisoners at Taycheedah Correctional Institution (TCI) are permitted to wear makeup, which would present concerns over feigning injury. (PFOF ¶ 193.)
Staff refusal to treat Konitzer as a female causes him a great deal of pain. (PFOF ¶ 197.) When staff refer to him as a male, it defeats his self-image and serves as a constant reminder of feeling that he is trapped in the wrong body. Id. Konitzer believes there is nothing more disrespectful and painful than the actions by WRC staff which reinforce his biological male status. Id.
On July 2, 2002, Phil Kingston, Warden at Columbia Correctional Institution, wrote a letter to Konitzer. (PFOF Amended ¶ 206.) In the letter, Kingston states that he reviewed Konitzer's correspondence about a job denial. Id. Kingston further states that
8Konitzer’s Program Review Inm ate Risk Assessm ent, dated January 26, 2001, indicates a “Low” rating under the escape history category and notes a 1991 escape attem pt. This low rating is in contrast to the defendants’ characterization of Konitzer as high-risk for escape given Konitzer’s sentence length and prior escape attem pt. (See DFOF ¶ 180.) The facts m ust be taken in Konitzer’s favor.
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CCI's Security Director, Tim Douma, stated that "there is no security issue regarding your appearance, presentation, or lifestyle issues.” Id.
On January 24, 2006, Wis. Stat. § 302.386(5m) became effective. Section 302.386(5m), which codifies the Inmate Sex Change Prevention Act, 2005 Wis. Act 105, was prompted by this lawsuit.
On December 1, 2005, Dr. Speech wrote to Konitzer regarding his statement that his treatment at the WRC did not meet the Standards of Care:
Your request presumes we are or will be providing you treatment for the gender identity disorder; we have consistently said such treatment is outside the realm of expertise and that we did not consider this a focus of treatment for you here at WRC. Unless the court says otherwise, you are not here for GID treatment. (Cothroll Suppl. Decl., Ex. 213.) On or about March 24, 2006, the WRC stopped selling "Majic Shave" in its canteen. (PFOF ¶ 211.) Majic Shave is a cream that removes hair without requiring a razor. In other words, it is a type of "depilatory." Id. Currently Majic Shave is sold in at least two DOC institutions, Waupun Correctional Institution and Oshkosh Correctional Institution. Id.
III. ANALYSIS The defendants contend that: (1) they are entitled to judgment as a matter of law on Konitzer's medical experts' recommendations 1-10 and 12-14 for injunctive relief because there is no evidence that the defendants have or would be deliberately indifferent to any serious medical need Konitzer may have absent such injunctive relief9; and (2) the
9 The defendants do not contend that recommendation 11, that Konitzer continue on hormone replacement therapy, is ripe for summ ary judgment. According to the defendants, given the new law, W is. Stat. § 302.386(5m ), that prevents the DOC from continuing the adm inistration of horm ones to inm ates,
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court should decline to issue injunctive relief and should not adopt the recommendations that only female officers conduct strip searches of Konitzer, Konitzer be provided with makeup and female undergarments, Konitzer be addressed by a female name, and Konitzer be allowed the use of hair removal/growth products because such recommendations are contrary to the WRC and the DOC's legitimate institutional interests and beyond the relief allowed under the Prisoner Litigation Reform Act.
Konitzer contends that: (1) as a matter of law, his GID is a serious medical need for which he is entitled to treatment under the Eighth Amendment; (2) summary judgment should be denied because his treatment by the defendants does not stem from any medical judgment but rather strict adherence to Directive #68; (3) there is a material factual dispute as to whether his GID requires deference to administrative decisions based on vague security risks and theoretical management issues; (4) Rooker-Feldman does not apply because he is not seeking review or rejection of the state court's denial of his petition for a legal name change; and (5) his hormone treatment should be established and closely monitored.
To establish liability under the Eighth Amendment, a prisoner must show: (1) that his medical need was objectively serious; and (2) that the official acted with deliberate indifference to the prisoner's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v. Gamble, 429 U.S. 97,104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000).
and the DOC's obligation to follow the new law, recom m endation 11 creates a disputed issue of m aterial fact. (Defs.' Br. at 4, n.2.)
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A serious medical need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Factors that indicate a serious medical need include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Gutierrez, 111 F.3d at 1373 (citations omitted). A medical condition need not be life-threatening to qualify as serious and to support a § 1983 claim, providing the denial of medical care could result in further significant injury or in the unnecessary infliction of pain. See Reed v. McBride, 178 F.3d 849, 852-53 (7th Cir. 1999); Gutierrez, 111 F.3d at 1371.
A prison official acts with deliberate indifference when "the official knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. Prison officials act with deliberate indifference when they act "intentionally or in a criminally reckless manner." Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor gross negligence is a sufficient basis for liability. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). A finding of deliberate indifference requires evidence "that the official was aware of the risk and consciously disregarded it nonetheless." Chapman, 241 F.3d at 845 (citing Farmer, 511 U.S. at 840-42).
A. Relevant Case Law
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As an initial matter, the court recognizes that claims regarding GID, although
unusual, are not unprecedented:
In view of the general lack of public knowledge and understanding of gender identity disorders, the idea that an imprisoned male murderer may ever have a right to receive female hormones and sex reassignment surgery may understandably strike some as bizarre. However, Kosilek's claims raise issues involving substantial jurisprudence concerning the application of the Eighth Amendment to inmates with serious medical needs. This case requires the neutral application of the principles that emerge from that jurisprudence to the facts established by the evidence in this case.
Kosilek v. Maloney, 221 F. Supp. 2d 156, 160 (D. Mass. 2002). The court turns to a review
of case law containing claims brought by prisoners with GID issues.
The Seventh Circuit Court of Appeals has issued two opinions on this topic.
In Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987), the court held that an inmate
stated a valid claim under the Eighth Amendment in connection with denial of medical
treatment for transsexualism, reversing the lower court's dismissal of the complaint for
failure to state a claim. The prisoner in that case was a biological male who underwent nine
years of estrogen therapy before incarceration. Id. at 410. Once incarcerated the inmate
was denied all medical treatment—chemical, psychiatric or otherwise—for his GID and
related medical needs. Id. In concluding that the complaint stated a claim, the court found
that transsexualism was a serious medical need. Id. at 411-13. In doing so it defined
transsexualism as:
“a condition that exists when a physiologically normal person (i.e., not a hermaphrodite - a person whose sex is not clearly defined due to a congenital condition) experiences discomfort or discontent about nature's choice of his or her particular sex and prefers to be the other sex. This discomfort is generally accompanied by a desire to utilize hormonal, surgical, and civil
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procedures to allow the individual to live in his or her preferred sex role. The diagnosis is appropriate only if the discomfort has been continuous for at least two years, and is not due to another mental disorder, such as schizophrenia . . . . [S]ee generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, § 302.5x (3d ed. 1980); Edgerton, Langman, Schmidt & Sheppe, Psychological Considerations of Gender Reassignment Surgery, 9 Clinics in Plastic Surgery 355, 357 (1982); Comment, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn. L. Rev. 288, 288 n.1 (1975); Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cornell L. Rev. 963, 963 n.1 (1971).”
Id. at 411-12 (quoting Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1083 n.3 (7th Cir.
1984)) (alteration in original). Additionally, the court determined that the complaint
contained allegations indicating that the defendants were deliberately indifferent to that
need because they "failed to provide the plaintiff with any kind of medical treatment, not
merely hormone therapy, for her gender dysphoria." Id. at 413. The court went on to say,
We therefore conclude that plaintiff has stated a valid claim under the Eighth Amendment which, if proven, would entitle her to some kind of medical treatment. It is important to emphasize, however, that she does not have a right to any particular type of treatment, such as estrogen therapy which appears to be the focus of her complaint. The only two federal courts to have considered the issue have refused to recognize a constitutional right under the Eighth Amendment to estrogen therapy provided that some other treatment option is made available. See Supre v. Ricketts, 792 F.2d 958 (10th Cir.1986); Lamb v. Maschner, 633 F. Supp. 351 (D. Kan. 1986). Both of these courts nevertheless agreed that a transsexual inmate is constitutionally entitled to some type of medical treatment.
In Supre v. Ricketts, the plaintiff, an inmate in the Colorado Department of Corrections, was examined by two endocrinologists and a psychiatrist. These doctors considered estrogen treatment, but ultimately advised against it, citing the dangers associated with this controversial form of therapy.
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Instead they prescribed testosterone replacement therapy and mental health treatment consisting of a program of counseling by psychologists and psychiatrists. Given the wide variety of options available for the treatment of the plaintiff’s psychological and physical medical conditions, the Tenth Circuit refused to hold that the decision not to provide the plaintiff with estrogen violated the Eighth Amendment as long as some treatment for gender dysphoria was provided. Similarly, in Lamb v. Maschner, the plaintiff, an inmate at the Kansas State Penitentiary, had been evaluated by medical doctors, psychologists, psychiatrists and social workers and was undergoing some type of mental treatment. As a result of this treatment, the court held that the defendant prison officials were not constitutionally required to provide the plaintiff with pre-operative hormone treatment and a sex change operation.
The courts in Supre and Lamb both emphasized that a different result would be required in a case where there had been a total failure to provide any kind of medical attention at all. That is precisely the type of case before us. We agree with the Tenth Circuit that given the wide variety of options available for the treatment of gender dysphoria and the highly controversial nature of some of those options, a federal court should defer to the informed judgment of prison officials as to the appropriate form of medical treatment. But no such informed judgment has been made here. While we can and will not prescribe any overall plan of treatment, the plaintiff has stated a claim under the Eighth Amendment entitling her to some kind of medical care.
Id. at 413-14.
The other Seventh Circuit case is Maggert v. Hanks, 131 F.3d 670 (7th Cir.
1997). In Maggert, the district court's dismissal of the action was affirmed because the
prisoner failed to create a genuine issue of material fact that he had GID. Id. at 671.
However, the Court of Appeals went on to address "a broader issue, having to do with the
significance of gender dysphoria in prisoners' civil rights litigation." Id. First, it defined
gender dysphoria, "the condition in which a person believes that he is imprisoned in a body
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of the wrong sex, that though biologically a male (the more common form of the condition)
he is 'really a female,'" as a "serious psychiatric disorder." Id. Treatment, or "the cure," for
transsexualism, was discussed as well:
The cure for the male transsexual consists not of psychiatric treatment designed to make the patient content with his biological sexual identity - that doesn't work - but of estrogen therapy designed to create the secondary sexual characteristics of a woman followed by the surgical removal of the genitals and the construction of a vagina-substitute out of penile tissue.
. . .
Someone eager to undergo this mutilation is plainly suffering from a profound psychiatric disorder.
Id. However, prisons do not necessarily have a duty to authorize these hormonal and
surgical curative procedures:
Withholding from a prisoner an esoteric medical treatment that only the wealthy can afford does not strike us as a form of cruel and unusual punishment. It is not unusual; and we cannot see what is cruel about refusing a benefit to a person who could not have obtained the benefit if he had refrained from committing crimes. We do not want transsexuals committing crimes because it is the only route to obtaining a cure.
It is not the cost per se that drives this conclusion. For life-threatening or crippling conditions, Medicaid and other public-aid, insurance, and charity programs authorize treatments that often exceed $100,000. Gender dysphoria is not, at least not yet, generally considered a severe enough condition to warrant expensive treatment at the expense of others than the person suffering from it. That being so, making the treatment a constitutional duty of prisons would give prisoners a degree of medical care that they could not obtain if they obeyed the law.
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Id. at 672. Lastly, the Seventh Circuit stated: "We conclude that, except in special circumstances that we do not at present foresee, the Eighth Amendment does not entitle a prison inmate to curative treatment for his gender dysphoria." Id. at 672.
In Phillips v. Michigan Department of Corrections, 731 F. Supp. 792, 801 (W.D. Mich. 1990), the court granted a prisoner's motion for preliminary injunction ordering correctional officials to provide the inmate with estrogen therapy. The prisoner in that case was a thirty-four-year-old male-to-female transsexual who lived as a woman since she was seventeen. Id. at 793-94. Prior to incarceration, she had a number of "surgeries and other procedures to enhance her appearance as a female, including electrolysis, a brow lift, dermabrasions, a chemical face peel, jaw reduction, a chin implant, and breast implant surgery." Id. at 794. In addition, the inmate took estrogen treatment starting at the age of seventeen or eighteen to slow hair growth, soften skin, develop the breast implants, and further develop female characteristics. Id. Not long after her incarceration, the plaintiff was examined by a Michigan Department of Corrections physician who stopped the hormonal treatments and denied her requests for brassieres. Id. The prisoner's request for brassieres was later granted, after the physician's supervisor intervened. Id. In granting the request for a preliminary injunction, the court found that the prisoner had a serious medical need and that the defendant denied her medical care through both intentional conduct and deliberate indifference:
The denial of medical care in this case stems from at least three sources - which in concert violate plaintiff's right under the constitution to be free from cruel and unusual punishment. A result decried in Meriwether and in dicta by the Supre and Lamb courts is present here: defendant has failed to provide plaintiff with treatment of any kind. And, as was the plaintiff in
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Meriwether, plaintiff has been the subject of ridicule and offensive remarks at the hands of Dr. Opika. Third, this Court characterizes defendant's conduct in this case as conduct which actually reversed the therapeutic effects of previous treatment. It is one thing to fail to provide an inmate with care that would improve his or her medical state, such as refusing to provide sex reassignment surgery or to operate on a long-endured cyst. Taking measures which actually reverse the effects of years of healing medical treatment, as I observe here, is measurably worse, making the cruel and unusual determination much easier. Id. at 800 (footnote omitted). In Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002), plaintiff Kosilek was a male-to-female transsexual sentenced to life in prison. Since his incarceration in 1990, Kosilek had tried to access proper diagnosis and treatment, but his claims were consistently denied by the institution. Id. at 159. While incarcerated, he tried to commit suicide on two occasions and to castrate himself. Id. at 158. Kosilek also complained of being in severe mental anguish. Id. He sued the Massachusetts Department of Corrections and Commissioner Michael Maloney, who in 2000 had adopted a blanket policy regarding the treatment of transsexuals in prisons. Id. Under the policy, transsexuals who had received treatment by doctors prior to incarceration could have that treatment continued after incarceration; however, transsexuals taking hormones that had not been prescribed by a doctor were not permitted to continue hormone usage in prison. Id. at 159-60. The policy also denied the possibility of any inmate receiving gender reassignment surgery. Id. at 160. Because Kosilek's transsexualism was undiagnosed, the policy denied him access to doctors for treatment and diagnosis of GID. Id.
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The court found that Kosilek's GID was a serious medical need. Id. at 184.
Kosilek's GID "has prompted him to attempt suicide twice while incarcerated, and to try to
castrate himself as well. There is a significant risk that he will attempt to kill, mutilate, or
otherwise harm himself again if he is not afforded adequate treatment for this disorder." Id.
Next, the court found that Kosilek had not been offered adequate treatment for the serious
medical need in that "[t]he services now being offered Kosilek are not sufficient to diminish
his intense emotional distress, and the related risks of suicide and self-mutilation, to the
point at which he would no longer be at a substantial risk of serious harm." Id. at 185. The
court reasoned that "no informed medical judgment has been made by the DOC concerning
what treatment is necessary to treat adequately Kosilek's severe gender identity disorder."
Id. at 186. The Massachusetts Department of Corrections policy, also known as the
Guidelines, prevented an individualized medical assessment:
However, the Guidelines preclude the possibility that Kosilek will ever be offered hormones or sex reassignment surgery, which are the treatments commensurate with modern medical science that prudent professionals in the United States prescribe as medically necessary for some, but not all, individuals suffering from gender identity disorders. The Guidelines, in effect, prohibit forms of treatment that may be necessary to provide Kosilek any real treatment. Maloney's decision to implement the Guidelines precluded the medical professionals and social workers he employs and regularly relies upon from even considering whether hormones should be prescribed to treat Kosilek's severe gender identity disorder.
Id. at 186 (internal citation omitted). Thus, the court concluded that Kosilek satisfied the
objective component of the Eighth Amendment. Id. at 189.
However, the court found that Maloney's failure to provide Kosilek with
adequate care had not been due to deliberate indifference. Id. at 189-92. It pointed out
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that his actions were like those of "a defendant with a legal problem" and were not taken
to inflict pain on Kosilek. Id. at 162, 191. Finally, the court found that Maloney was not
likely to be indifferent to Kosilek's serious medical need in the future. Id. at 193-95. It
reasoned that Maloney "is now on notice that Kosilek's severe gender identity disorder
constitutes a serious medical need" and, therefore, "the DOC has a duty to provide Kosilek
adequate treatment." Id. at 193.
It is permissible for the DOC to maintain a presumptive freeze-frame policy. However, decisions as to whether psychotherapy, hormones, and/or sex reassignment surgery are necessary to treat Kosilek adequately must be based on an "individualized medical evaluation" of Kosilek rather than as "a result of a blanket rule." Those decisions must be made by qualified professionals. Such professionals must exercise sound medical judgment, based upon prudent professional standards, particularly the Standards of Care.
Thus, the court expects that Maloney will follow the DOC's usual policy and practice of allowing medical professionals to assess what is necessary to treat Kosilek. As the DOC does not employ anyone with expertise in treating gender identity disorders, the DOC may decide to follow its regular practice of retaining an outside expert to evaluate Kosilek and to participate in treating, or recommending treatment for him.
The evidence demonstrates that, at a minimum, Kosilek should receive genuine psychotherapy from, or under the direction of, someone qualified by training and experience to address a severe gender identity disorder. It will be Kosilek's obligation to cooperate in establishing a proper relationship with his therapist(s). The Standards of Care indicate that such therapy, or such therapy and pharmacology, may be sufficient to reduce the anguish caused by Kosilek's gender identity disorder so that it no longer constitutes a serious medical need.
If psychotherapy, and possibly psychopharmacology, do not eliminate the significant risk of serious harm that now exists, consideration should be given to whether hormones should be prescribed to treat Kosilek. Administering female hormones to a male prisoner in a male prison could raise genuine security
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concerns. Maloney would be entitled to consider whether those concerns make it necessary to deny Kosilek care that the medical professionals regard as required to provide minimally adequate treatment for his serious medical need.
. . . .
As the Standards of Care explain, "hormone therapy alone may provide sufficient symptomatic relief to obviate the need for cross-living or surgery." If psychotherapy, hormones, and possibly psychopharmacology are not sufficient to reduce the anguish caused by Kosilek's gender identity disorder to the point that there is no longer a substantial risk of serious harm to him, sex reassignment surgery might be deemed medically necessary. Id. at 18. If that occurs, Maloney may consider whether security requirements make it truly necessary to deny Kosilek adequate care for his serious medical need. If and when he makes such a decision, a court may have to determine again whether the Eighth Amendment has been violated.
Id. at 193-95 (citations omitted).
In De'Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003), the court of appeals
reversed the district court's dismissal of the complaint for failure to state a claim. The
prisoner in that case, a biological male, had GID and was incarcerated in the custody of the
Virginia Department of Corrections since 1983. Id. at 632. Department of Corrections
doctors diagnosed the prisoner with GID and the prisoner received estrogen therapy from
1993 until 1995, at which time the treatment was terminated pursuant to a new Department
of Corrections policy. Id. The policy provided that neither medical nor surgical interventions
related to gender or sex change would be provided to inmates with GID. Id. Inmates
entering prison taking hormone medication or already receiving such medication were to be
informed of the policy and then the medication would be tapered immediately and afterward
discontinued. Id. Following termination of his hormone medication, the prisoner developed
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an uncontrollable urge to mutilate his genitals. Id. Repeatedly he requested resumption of the hormone therapy and treatment by a gender specialist, however, his requests were denied and the self-mutilation continued. Id. The court held first that the prisoner's "need for protection against continuous self-mutilation constitutes a serious medical need to which prison officials may not be deliberately indifferent." Id. at 634 (citing Lee v. Downs, 641 F.2d 1117, 1121 (4th Cir. 1981)). Next, it found that the inmate had stated an Eighth Amendment claim by alleging inadequate medical treatment to protect him from his compulsion to mutilate himself. Id. at 635.
In Brooks v. Berg, 270 F. Supp. 2d 302 (N.D.N.Y.), vacated in part on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003), a prisoner, who was a biological male, diagnosed himself with GID. Id. at 304. The prisoner sought treatment by writing letters to a Mental Health Satellite Unit and to a supervisor; however, he never received a response. Id. The prisoner then filed his lawsuit alleging that the defendants failed to provide him with necessary medical treatment for his serious medical need in violation of the Eighth Amendment and asking the court to force the defendants to allow him to see a doctor qualified to propose a course of treatment. Id. at 305-06. Pursuant to a Department of Corrections policy, inmates who could prove that they received hormone therapy prior to incarceration might be eligible for continued hormone therapy. Id. at 305. The policy further stated that transsexual surgical operations were not honored during incarceration. Id.
The court found that the defendants were deliberately indifferent to the prisoner's serious medical need:
Defendants do not contest Plaintiff’s claim that he was never treated for GID notwithstanding numerous requests for
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treatment. In addition, Defendants have not provided the Court with any evidence showing that the decision to refuse Plaintiff treatment was based on sound medical judgment. Finally, Defendants have failed to submit any evidence that they were not aware that Plaintiff’s health could be jeopardized if treatment was refused. Accordingly, the Court finds that Defendants have failed to establish, as a matter of law, that Plaintiff was provided adequate treatment for his serious medical needs.
Id. at 310. The court went on to say:
This blanket denial of medical treatment is contrary to a decided body of case law. Prisons must provide inmates with serious medical needs some treatment based on sound medical judgment. There is no exception to this rule for serious medical needs that are first diagnosed in prison. Prison officials are thus obliged to determine whether Plaintiff has a serious medical need and, if so, to provide him with at least some treatment. Prison officials cannot deny transsexual inmates all medical treatment simply by referring to a prison policy which makes a seemingly arbitrary distinction between inmates who were and were not diagnosed with GID prior to incarceration. In light of the numerous cases which hold that prison officials may not deny transsexual inmates all medical attention, especially when this denial is not based on sound medical judgment, the Court finds that Defendants have failed to establish as a matter of law that their actions were objectively reasonable.
Id. at 312.
In Praylor v. Texas Department of Criminal Justice, 430 F.3d 1208, 1208-09
(5th Cir. 2005), a transsexual state prison inmate sought an injunction instructing the Texas
Department of Criminal Justice [“TDCJ”] to provide him with hormone therapy and
brassieres. The court simply concluded that the prisoner was not entitled to such treatment.
This circuit has not addressed the issue of providing hormone treatment to transsexual inmates. Other circuits that have considered the issue have concluded that declining to provide a transsexual with hormone treatment does not amount to acting with deliberate indifference to a serious medical need. See, e.g., White v. Farrier, 849 F.2d 322 (8th Cir. 1988)
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(acknowledging that transsexualism is a serious medical condition, but holding that declining to provide hormone therapy did not constitute deliberate indifference to that medical need); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding transsexual prisoner has no constitutional right to "any particular type of treatment, such as estrogen therapy"); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment). Assuming, without deciding, that transsexualism does present a serious medical need, we hold that, on this record, the refusal to provide hormone therapy did not constitute the requisite deliberate indifference.
In Praylor's case, the record reflects that he did not request any form of treatment other than hormone therapy. Testimony from the medical director at the TDCJ revealed that the TDCJ had a policy for treating transsexuals, but that Praylor did not qualify for hormone therapy because of the length of his term and the prison's inability to perform a sex change operation, the lack of medical necessity for the hormone, and the disruption to the all-male prison. Cf. De'Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003). Moreover, the director testified that Praylor had been evaluated on two occasions and denied eligibility for hormone treatment and that the TDCJ did provide mental health screening as part of its process for evaluating transsexuals. See Supre, 792 F.2d at 963. Accordingly, based upon the instant record and circumstances of Praylor's complaint, the denial of his specific request for hormone therapy does not constitute deliberate indifference. See Meriwether, 821 F.2d at 413; Supre, 792 F.2d at 963.
Id. at 1209.
B. Discussion
It is undisputed that in December 1999, the DOC diagnosed Konitzer with GID
and prescribed hormone therapy. It is also undisputed that since December 1999, Konitzer
has cut open scrotal tissue (following transfer to GBCI); cut skin from his scrotum and tied
cord around his testes (January 2001); attempted castration (May 2001); attempted
castration (August 2001); succeeded in partial castration (October 2001); attempted
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castration (August 2002); and attempted to castrate his remaining teste (May 2006). In addition, Konitzer attempted suicide in January 2001 and July 2003. With due regard for these undisputed facts, the defendants' statement admitting that Konitzer has a serious medical need for the purpose of summary judgment and the relevant case law lead the court to the conclusion that Konitzer's GID constitutes a serious medical need. See Meriwether, 821 F.2d at 411-13; Maggert, 131 F.3d at 671.
While it is undisputed that Konitzer’s GID is a serious medical need, the defendants contend that they have not been deliberately indifferent to Konitzer's medical need. The parties disagree whether the defendants’ failure to follow the Standards of Care in treating Konitzer’s GID constitutes a substantial departure from accepted professional judgment. Moreover, they disagree whether the defendants’ justifications for not providing the real-life experience to Konitzer are supported by a legitimate penological interest.
Defendants contend that they have not been deliberately indifferent to Konitzer's medical need because he has been evaluated consistently and treated by medical professionals. Konitzer's medical records establish that he has been seen many times for medical issues since 1999. (DFOF ¶¶4 210-588.) Inasmuch as Konitzer has received medical attention consistently, the defendants submit that they cannot be found to have been deliberately indifferent. Instead, they submit their course of treatment is different from what Konitzer, or his medical experts, would have chosen. And, because disagreement with medical professionals about treatment needs does not state a cognizable Eighth Amendment claim under the deliberate indifference standard of Estelle v. Gamble, 429 U.S. 97 (1976), the defendants argue that Konitzer's Eighth Amendment claim must fail. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). Moreover, the
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defendants contend, the real-life experience that Konitzer seeks is contrary to the WRC and the DOC's legitimate institutional interest of prison security. See Helling v. McKinney, 509 U.S. 25, 37 (1993) (stating that the "realities of prison administration" are relevant to the issue of deliberate indifference); Farmer v. Brennan, 511 U.S. 825, 832 (1994) (finding that under the Eighth Amendment prison officials must, among other things, take reasonable measures to guarantee the safety of the inmates).
Defendants claim the Standards of Care are not necessary for the treatment of GID and GID is largely a self-diagnosed condition. (DFOF ¶ 33.) A patient diagnosed with GID chooses how to live after acknowledging the GID. (DFOF ¶ 34.) For individuals with GID, the Standards of Care emphasize the person's choices and options rather than speak of a diagnosis that requires necessary "treatment." (DFOF ¶ 35.) The Standards of Care put emphasis on flexible choices for individuals with GID. (DFOF ¶ 36.) The Standards of Care state that they "are intended to provide flexible directions for the treatment of persons with gender identity disorders." (DFOF ¶ 37; Daley Dep., Sept. 10, 2004, Ex. 12, Bates No. 5478.) Moreover, the Standards of Care advise that "[m]any adults with gender identity disorder find comfortable, effective ways of living that do not involve all the components of the triadic treatment sequence." (DFOF ¶ 38.) The transgendered situation is about choices, not medical necessity. (DFOF ¶ 39.) Each transgendered individual decides which options to pursue and how far and how fast to go with regard to those life-changing options—based on age, physical characteristics, income, employment, personality, pain tolerance, and desired lifestyle, among other considerations. (DFOF ¶ 40.) The Standards of Care include a criterion of being crime free. (DFOF ¶ 41.) This is accepted as the community standard in gender clinics throughout the world. Id. However,
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prison life presents an inherent and irresolvable contradiction to this standard. Id. Prison life is a context that renders existing standard treatment guidelines for GID unrealistic and impossible. (DFOF ¶ 41.) New treatment guidelines for GID within prisons, with awareness of and in consideration of the complexities created by that situation, are yet to be developed. Id.
On the other hand, Konitzer submits that the Standards of Care were designed to present professional consensus about psychiatric, medical, and surgical management of gender conditions and the parameters within which professionals could offer services to individuals. (PFOF ¶ 20.) The Standards of Care are now in their sixth edition, having been revised in 2001. Id. The Standards of Care establish a triadic therapeutic sequence (the "Triadic Therapy"): (1) hormone therapy, (2) real-life experience, and (3) sex reassignment surgery. (PFOF ¶ 23.) Typically, the Triadic Therapy takes placed in the order of hormones => real-life experience => surgery. (PFOF ¶ 24.) A GID patient, however, may undergo a variety of different therapeutic options because clinicians recognize that not all persons with GID need or want all three elements of Triadic Therapy. (PFOF ¶ 25.) For a male-to-female GID patient like Konitzer, the first step of the Triadic Therapy, hormone therapy, entails the prescription of female hormones like estrogen. (PFOF ¶ 26.) The second step in the Triadic Therapy is the real-life experience, which is the act of fully adopting a new or evolving gender role or gender presentation in everyday life. (PFOF ¶ 27.) The real-life experience for male-to-female transsexuals includes the removal of unwanted hair, which further consolidates their female identity. (PFOF ¶ 28.) Hair is also removed with depilatories or lasers. (PFOF ¶ 29.) The final step of the Triadic
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Therapy is sex reassignment surgery. (PFOF ¶ 30.) For individuals with profound GID, sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven to be effective. Id. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Id. Sex reassignment is not "experimental," "investigational," "elective," cosmetic," or optional in any meaningful sense. Id. It constitutes very effective and appropriate treatment for transsexualism or profound GID. Id. Psychotherapy is not a component of the Triadic Therapy. (PFOF ¶ 31.) The goal of psychotherapy, when it is employed, is to help the person live more comfortably within a gender identity and to deal effectively with non-gender issues. (PFOF ¶ 32.) Konitzer is not a good candidate for psychotherapy. (PFOF ¶ 33.)
Taking the facts in Konitzer’s favor, the Standards of Care suggest necessary or recommended treatment for many GID patients. Further, although some persons may choose not to follow the Triadic Therapy, a reasonable jury could find that components of the Triadic Therapy, including the real-life experience, are appropriate for Konitzer. Among the evidence supporting this conclusion, is Dr. F. Ettner’s opinion that refusing to provide Konitzer with the real-life experience puts him at risk for castration and self harm, and that the frustration of living with an untreated gender condition always has disastrous consequences. Dr. R. Ettner opined that Konitzer has not received the minimum standard of care for the treatment of GID and that many of Konitzer's interventions have been counter-therapeutic. Her view is that the overarching goal of Konitzer's treatment has been to assist him to adapting to life as a male. Cynthia Osborne stated that every group that operates in this country and abroad in the area of GID is familiar with the Standards of Care
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and recognizes them as guidelines. (PFOF ¶ 131.) In defendant Dr. David Burnett's understanding of the Standards of Care, the real-life experience is a legitimate form of treatment for a GID patient, depending upon that person's individual situation. (PFOF ¶ 134.)
Mere differences of opinion among medical personnel regarding a plaintiff’s appropriate treatment do not give rise to deliberate indifference. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). However, deliberate indifference may be inferred “when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Id.; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (citing as examples “the leg is broken, so it must be set; the person is not breathing, so CPR must be administered”).
“[T]o prevail on an Eighth Amendment claim ‘a prisoner is not required to show that he was literally ignored.’” Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir. 2005) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). A defendant ‘s contention that a medical care claim fails because the prisoner “received some treatment overlooks the possibility that the treatment [the prisoner] did receive was ‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.” Greeno, 414 F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (internal quotation marks omitted)).
This is not a case, as in Meriwether, Phillips, and Brooks, where a prisoner has been denied all medical care for GID. This case is more analogous to Kosilek, where
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the treatment offered for GID is arguably inadequate because the patient keeps exhibiting the behavior seen in GID sufferers, repeated self-castration attempts. The next level of treatment for Konitzer, according to the Standards of Care, is the real-life experience. However, most aspects of the real-life experience are unavailable to Konitzer because they are contrary to DOC policy as stated in Executive Directive #68.
Taking all reasonable inferences in a light most favorable to Konitzer, as the court must do at this stage, a reasonable jury could find that the defendants were deliberately indifferent to Konitzer’s serious medical need when they failed to provide him with the second step of treatment from the Standards of Care, the real-life experience, in the face of his repeated self-mutilations and suicide attempts. Clearly, what the defendants were doing to treat Konitzer was not working.
Next, the parties disagree whether denial of the real-life experience is justified by prison security concerns. The defendants assert that allowing Konitzer to have the real-life experience would compromise prison security. According to the defendants, when an inmate enhances his differences in appearance or identity, such as appearing more feminine or homosexual in a male prison population, it significantly increases the likelihood that the inmate will be the target of aggression or the center of conflict among the prison population. (DFOF ¶ 81.) The inmate's use of female clothing and undergarments, the use of a female name, the use of hair removal products, and feminine makeup products gives a loud message to all observers. It says to all inmates that the person is of the female gender and is available for sexual conduct; it is seen by all inmates as an open invitation
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to compete for that person's attention and invites assaults.10 The consequences of providing Konitzer with property items typically associated with females while housed in a male correctional environment, could compromise Konitzer’s safety and security, especially considering Konitzer's lengthy sentence structure. (DFOF ¶ 84.)
Further, say defendants, the feminization of an inmate increases the work demand of existing staff resources by creating additional property management challenges, such as making sure that an inmate is not doing a brisk business in the sales or bartering of cosmetics or undergarments; resolving disputes over who is eligible to possess such items and who is not eligible; determining whether hair removal products or hair growth stimulators are an appropriate product for the general inmate population; finding an opportunity for peaceful integration of an inmate to a new living condition as he is being moved from another location; or continuously observing an inmate based upon a perception of increased risk. Staff resources that would be required due to the increases of work demand created by the feminization of an inmate are exceptional, and staff will be drawn from attending to other operational duties in the institution that are also likely to involve safety and control. (DFOF ¶ 97.) When an inmate enhances his differences in appearance or identity, such as appearing more feminine or homosexual in a male prison population, it significantly increases the likelihood that the inmate will be the target of aggression or the center of conflict among the prison population. (DFOF ¶ 98.)
10 The defendants' argum ent that institution security would be com prom ised by allowing Konitzer to enhance his femininity is underm ined inasmuch as the DOC has prescribed Konitzer feminizing horm one therapy since Decem ber 1999.
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However, although a jury may well find that the defendants are justified in having a blanket policy that does not allow Konitzer to experience life as a female (through the use of modest makeup, womens’ undergarments, female strip searches, facial hair remover, and being referred to as a female) in a male institution, on this record the court cannot grant summary judgment. Taking the facts in Konitzer’s favor, modest makeup, female undergarments, facial hair remover or growth items, and being referred to as a female are part of the real-life experience.
With regard to a bra and makeup, it is undisputed that Konitzer’s hormone therapy resulted in breast development. In September 2006, Dr. Kulstad of the UW Hospital noted that Konitzer’s breasts were “consistent with [an] adult female” and that while hormone therapy provided some relief for GID, Konitzer remained distressed because he was not allowed to wear makeup or a bra.
Instead of a bra, the WRC provided Konitzer with a male-appropriate undergarment. Unlike a bra, a support undergarment for men who suffer from gynecomastia is a vest that acts to bind. (PFOF ¶ 180.) It is a garment that a female-tomale transsexual may use to disguise breast development. Id. A supportive undergarment designed for gynecomastia does not support the breasts, but damages them. Id. It is extremely tight and does not provide any support for Konitzer’s breasts. (PFOF ¶ 181.) Instead it crushes them against Konitzer’s chest wall and is very painful. Id.
Further, according to Dr. R. Ettner, the gynecomastia vest fails to substitute for a bra inasmuch as it does not provide Konitzer with an ego-syntonic state of mind. (PFOF ¶ 179.) The importance of the female attire is to provide Konitzer with an ego-syntonic state of mind. Id. ) In Dr. Claiborn’s opinion, the use of female undergarments
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is a choice on the part of Konitzer. However, Dr. Kulstad stated that a bra was medically necessary. Dr. Wellens felt that things like makeup and female underwear were necessary to alleviate Konitzer’s psychological distress. (PFOF ¶ 175.) So, he would serve as a gobetween for Konitzer and Warden Bertrand. Id.
Thus, rather than providing Konitzer with a supportive undergarment, the WRC has provided him with an undergarment that may cause him physical pain and fails to address his GID.
Makeup and items such as depilatories and hair growth stimulators are similar to feminine clothing for purposes of Konitzer’s GID treatment. According to Dr. R. Ettner, the hair-related items may appear superficial or not medical but in fact play a prominent role in the treatment of GID and allow the patient to move from a discordant and uncomfortable life that interferes with their functioning into a safer and more comfortable gendered ecology. Again, Dr. Wellens believed things like makeup and female underwear were necessary to alleviate Konitzer’s psychological distress and Dr. Kulstad noted that Konitzer was distressed because he was not allowed to wear makeup.
Similarly, sufficient evidence exists in the record that use of a female name may be required for Konitzer’s treatment. For instance, Dr. Wellens observed after Konitzer was placed on hormone therapy that while the hormone therapy provided some relief, Konitzer remained distressed because he could not be referred to by his preferred female name. Konitzer has stated that staff refusal to treat Konitzer as a female causes him a great deal of pain, defeats his self-image and serves as a constant reminder of feeling that he is trapped in the wrong body. (PFOF ¶ 197.)
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Defendants argue security concerns. As to a bra, defendants say the largest security concern with allowing Konitzer to wear female undergarments is furthering him being identified as a female in the prison population. (DFOF ¶ 169.) However, Konitzer has breasts—bra or no bra. Notably, upon meeting Konitzer for the first time, WRC inmate Wayne Polakowski thought he was a woman. (PFOF ¶ 167.) Thus, a reasonable jury could find that Konitzer looks female enough such that the addition of a bra will make little difference in singling him out among the male prison population.
Barstow and Canziani opine that if one male inmate has a bra, others will want them and security issues will arise. But other than this conclusory opinion, no evidence suggests that other inmates desire bras or that other inmates are denied recommended treatment items because others may desire them, too. Further, although some inmates have commented to Konitzer about his living situation, such as his shuttering the window of his cell when using the toilet, none has been negative, nor has Konitzer been assaulted since May 17, 2006, even though he has possessed women’s undergarments in violation of WRC rules.
Theodore Witheril has visited Konitzer several times and has observed Konitzer wearing bras because the bra straps were visible as an outline underneath his shirts and because Konitzer told Witheril that he was wearing bras. (PFOF ¶ 169.) WRC inmate Wayne Polakowski has been incarcerated with Konitzer since June 2004, and has observed Konitzer wearing his clothes in a feminine manner, but is not aware of any problems between other inmates and Konitzer because of his appearance. (PFOF ¶ 168.) Dr. Wellens observed at GBCI that Konitzer was respected by inmates and was not aware of a single instance of hostility towards him by another inmate. (DFOF ¶ 185.)
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Konitzer is not allowed to possess or use makeup because he could use it to disguise his appearance and identity and escape from the institution. (DFOF ¶ 177.) An inmate at Waupun Correctional Institution almost escaped from that institution after a visitor of the inmate came in and provided makeup to the inmate, who used it to nearly make it past the guard station because he looked like a female visitor. (DFOF ¶ 178.) For correctional staff members who are trained to look for males leaving the institution, say defendants, it is much more difficult if they have to be concerned about males made up to look like females. (DFOF ¶ 179.) And, argue defendants, given Konitzer’s sentence structure and escape history, he is classified as a high risk for escape attempt. (DFOF ¶ 180.)
But a reasonable jury could find that this is a poor reason for denying Konitzer modest makeup. Again, Konitzer looks like a woman with or without the makeup; makeup may not change his appearance much at all. And WRC staff are supposed to check the identification of persons leaving the WRC. (PFOF ¶ 192.) Further, Konitzer’s risk assessment indicates a low rating for escape history. (PFOF ¶ 191.)
Additionally, say defendants, possessing makeup could put Konitzer in a position of being in control of something that other inmates may want. (DFOF ¶ 182.) Contraband moves, and Konitzer can be offered money for things that other inmates want. (DFOF ¶ 183.) Further, if the makeup is in the hands of other inmates it could be used to feign an injury, such as a black eye to lure a staff member or other inmate to an inmates’s room. But while Dr. Wellens was Chief Psychologist at GBCI, he observed Konitzer wearing makeup regularly without any apparent problems. Polakowski has observed Konitzer wearing makeup and is not aware of any problems between other inmates and Konitzer.
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Defendants have pointed to no instances of Konitzer selling makeup items. And women prisoners at Taycheedah Correctional Institution are permitted to wear makeup, which would present similar concerns over feigning injury yet it appears that makeup is acceptable to the DOC when it is used by women prisoners.
Defendants have not provided sufficient security reasons regarding depilatories or Rogaine such that summary judgment could be granted. Majic Shave is sold in Waupun Correctional Institution and Oshkosh Correctional Institution. (PFOF ¶ 211.) Female inmates housed at Taycheedah Correctional Institution appear to be permitted Rogaine or other type of hair growth stimulators for medical purposes. (DFOF ¶¶ 205, 207.) Although there have been no instances where hair-related products have been approved for use by any DOC inmate or prescribed for use by any DOC medical professional for the treatment of hair loss (DFOF ¶ 208), Konitzer’s treatment would be for GID, not a less serious hair loss issue.
In addition, summary judgment must be denied as to Konitzer’s use of a female name or identification by female pronouns. Defendants argue that DOC inmates are prohibited from using false names and titles; they are not allowed to call themselves doctor if they are not a doctor, nor are they allowed to call themselves by nicknames, by their rank in a gang, or by religious titles. Calling inmates by names other than their legal names creates order and maintenance issues at a prison, presenting identity problems, escape issues, and power and control issues with inmates. (DFOF ¶ 147.) Staff need to know who an inmate is at the immediate time wherever they are, and they need to be accountable for their first and last name and inmate number. That is how the WRC identifies people, how
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staff members maintain order, and how staff members ensure that inmates do not have power over other inmates.
Further, say defendants, allowing Konitzer to use a name other than the name under which he was incarcerated, would be treating him differently than other inmates who may want to use a name other than their legal name. The Wisconsin Administrative Code § DOC 303.31 makes it a disciplinary offense for any inmate to use a name other than the name by which the inmate was committed to the department unless the name was legally changed. (DFOF ¶ 151.) This is uniformly enforced for legitimate penological purposes. Allowing inmates to use nicknames or other titles would allow inmates to have a power relationship relative to other inmates. (DFOF ¶ 152.) In the past, inmates have used these terms, such as religious or gang titles, to exert their will, control, influence, and power over other inmates. Allowing inmates to identify themselves by something other than their legal names would enable them to misrepresent themselves to the public and could lead to predatory behavior and victimization.
Further, according to defendants, the database system used by the DOC's Division of Adult Institutions does not allow for more than one name to be used for the DOC number assigned to an offender. (DFOF ¶ 155.) This system carries essential information concerning each inmate offender, including background information, convictions, institutional transfer histories, program review actions, etc. DOC staff need to be able to quickly and uniformly identify any given inmate at any given time to access essential information about the inmate. (DFOF ¶ 156.) Allowing an inmate to use a name other than his or her legal name could also cause tracking problems for victim notifications. (DFOF ¶ 157.) Victims may be confused if a notification letter came that did not have the offender's
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legal name listed. In addition, if a victim is not already in the system but later wishes to enroll for notification and only provides the inmate's old name, DOC may have difficulty finding the offender in the system.
Again, this is a jury issue. Referring to Konitzer by female pronouns does not appear to impinge on any of these security issues. Moreover, verbal reference about Konitzer or use of a female name in Konitzer’s presence would not require any change to the DOC’s database system or victim notification system. And the court is unpersuaded that staff at WRC will not know who Konitzer is when he uses his last name and prisoner identification number with “Donna Dawn” rather than “Scott.” Further, Cynthia Osborne noted that the DOC should consider use of an inmate's chosen name and feminine pronouns by all treatment, security and administrative personnel, which can be done without pursuit of a legal name change.
However, in one respect summary judgment has been granted, and that is in regard to strip searches. Although the WRC will not tolerate deliberate mistreatment related to strip searches conducted on Konitzer, such as unnecessary lookers, the WRC’s practices related to strip searches do not differ from the DOC, and it is reasonable that the practices be consistent. Order is very important in a prison environment. Therefore, Konitzer is strip searched and pat searched in accordance with DOC administrative rules.
It would become a management issue if the WRC were required to have only female officers strip search and pat search Konitzer. (DFOF ¶ 124.) Each correctional institution is operated with a specific number of established "posts." (DFOF ¶ 125.) These are locations where specific tasks are performed critical to the safe and controlled operation of the facility. It is essential that the posts in correctional institutions remain in operation.
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(DFOF ¶ 126.) Staff is seldom pulled from posts except in the most extreme circumstances. Occasionally, where some scheduling overlaps or staff may be temporarily assigned from jobs that do not staff posts, they are available for reassignment. (DFOF ¶ 127.) It is best to leave the judgment to make reassignment up to the institution shift commander of the moment because he or she is closest to the conditions to exercise the best judgment.
It is not possible for the DOC to ensure that Konitzer will be pat searched or strip searched by female staff. (DFOF ¶ 137.) Also, staffing patterns and staff resources may not allow for this to occur. The availability of female correctional officers is controlled by the number of female officers employed at an institution, and staff who may be on leave. Labor contracts also affect the number of male and female correctional staff at institutions. There may be occasions when a female on any given shift is not available due to these factors. To create work positions merely for the purpose of ensuring that a female is available at all times to pat search or strip search Konitzer is impractical and cost prohibitive. (DFOF ¶ 138.)
The record indicates that Dr. R. Ettner cannot predict that being searched by a male guard would cause Konitzer harm, only that it would be extremely agitating for Konitzer. (DFOF ¶ 130.) And, in Dr. Claiborn's opinion, requiring that Konitzer be searched by female security officers only does not constitute a necessity and cannot be construed as "treatment" for Konitzer. (DFOF ¶ 131.) Additionally, Dr. Claiborn believes that examination by male personnel will not harm Konitzer.
Konitzer's situation is not unique or new to DOC. (DFOF ¶ 136.) There have been other inmates with breast development or gender issues that have been managed in adult male institutions. These inmates with similar situations have been managed safely
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without special accommodations for searches. Male officers perform the strip searches of these other inmates with breast development or gender issues.
On these facts, no reasonable jury could find that defendants have been deliberately indifferent to Konitzer’s medical needs in regard to strip searches, and summary judgment has been granted as to this issue. However, as to all other issues raised in defendants’ summary judgment motion, summary judgment has been denied.
Dated at Milwaukee, Wisconsin, this 10th day of May, 2010. BY THE COURT /s/ C. N. Clevert, Jr. C. N. CLEVERT, JR. CHIEF U. S. DISTRICT JUDGE
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 Rev. 5/85) Judgment in a Civil Case q
United States District Court

EASTERN DISTRICT OF WISCONSIN

SCOTT KONITZER, also know as, Donna Dawn Konitzer,

v. MATTHEW J. FRANK, et al.

JUDGMENT IN A CIVIL CASE CASE NO. 03-C-717

This action came before the court, the issues have been decided and a

decision has been rendered. Now, therefore,

IT IS ORDERED AND ADJUDGED

follows:

The Court approves the parties’ Settlement Agreement which provides as

1. The Department of Corrections (DOC) will contract with an outside medical specialist with expertise in endocrinology or gender identity disorder (GID) to independently evaluate the plaintiff with follow-up evaluations to occur at intervals recommended by the medical specialist. This evaluation may occur in person, by telemedicine and/or record review.

2. The plaintiff will be provided state-issued brassieres and underwear consistent with those provided to inmates at Taycheedah Correctional Institution (TCI) in accordance with DOC policies as to allowable property limits. The DOC will provide the plaintiff access to the TCI canteen catalogue to select brassieres and underwear available to TCI inmates. DOC will purchase these items on a one-time basis in a quantity that is allowable under DOC property guidelines.

3. DOC will continue the plaintiff's hormone therapy consistent with state law, unless such therapy is medically contraindicated or the plaintiff agrees to the cessation of such therapy.

4. DOC will continue to provide medical and mental health treatment to the plaintiff as recommended by state correctional healthcare personnel. DOC will consider the recommendations of the independent outside medical specialist.

toilet.

5. DOC will commit to secure the plaintiff privacy in the shower and

Case 2:03-cv-00717-CNC Filed 12/27/10 Page 1 of 3 Document 311

6. DOC will not oppose a legal name change for the plaintiff in state court and will respond accordingly.
7. DOC agrees to provide the plaintiff with access to a DVD player for one hour per week to utilize a speech therapy DVD. The DVD will be reviewed by DOC personnel for security purposes prior to providing the DVD to the plaintiff for use. The DOC agrees to purchase the DVD in the amount of approximately $50.00.
8. DOC agrees to forgive all debt that the plaintiff owes to DOC as of September 1, 2010, including legal loans and restitution to DOC. This provision does not absolve DOC of the obligation to collect, or limit DOC's ability to collect, any monies currently owed to third parties, which DOC is obligated to collect. This provision also does not prevent DOC from assessing or collecting any obligations incurred after September 1, 2010.
9. DOC agrees that the plaintiff will have access to generic Propecia provided that (a) there are no medical contraindications to such a prescription; (b) the plaintiff does not divert or misuse the medication; and (c) the plaintiff does not choose to discontinue the medication. Once access to the medication is lost for any of these reasons, DOC will be under no obligation to restart it.
10. DOC will pay for a six month supply of generic Propecia. After the six-month period has expired, the plaintiff must bear the entire cost of the medication and pay for the medication before it is dispensed.
11. DOC agrees that the plaintiff will be offered an entry-level work assignment within 60 days after properly completing the application process. Retention, promotion, or reassignment in any work assignment will be based on the same criteria that apply to any other inmate.
12. DOC agrees to investigate the availability of nonprescription hypoallergenic hair removal products available through the institution canteen vendor and make them available for the plaintiff to purchase, provided that the items do not present any security concerns.
13. The plaintiff agrees to release all claims against the State of Wisconsin or any of its employees or agents arising in any way out of incarceration or hospitalization for any events that have occurred on or before September 1, 2010.
14. The parties agree that this agreement is the settlement of a disputed claim. It is not to be construed as an admission on the part of the State of Wisconsin, the Department of Corrections, or any of their employees that the care and treatment that the plaintiff received violated the 8th Amendment or deviated from any applicable standards of care, nor is it intended to establish a standard of care or constitutional standard for the treatment of the plaintiff or any other inmate.
15. Upon execution of a release of claims and settlement agreement and stipulation of dismissal, the parties agree that the court will close the case. Within
Case 2:03-cv-00717-CNC Filed 12/27/10 Page 2 of 3 Document 311 2

one year, any party may move to reopen the case solely for the purpose of enforcement of the settlement agreement.
This action is DISMISSED.
The court retains jurisdiction over the Settlement Agreement for one year from the date of entry of judgment. Within one year, any party may move to reopen this case solely to enforce the Settlement Agreement.
This dismissal is without prejudice solely as to the one-year retention of jurisdiction over the Settlement Agreement; for all other purposes the case is at an end and may not be reopened.

APPROVED:

s/ C. N. CLEVERT, JR. C. N. CLEVERT, JR. Chief U. S. District Judge
12/27/10 Date

JON W. SANFILIPPO Clerk
s/ C. Fehrenbach (By) Deputy Clerk

Case 2:03-cv-00717-CNC Filed 12/27/10 Page 3 of 3 Document 311 3

 
 Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 1 of 23
CLOSED, PRISONER
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:03−cv−00717−CNC

Konitzer v. Bartow et al Assigned to: Chief Judge Charles N Clevert, Jr related Case: 2:06−cv−00112−CNC
Case in other court: 11−01450 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Scott Konitzer also known as Donna Dawn Konitzer

Date Filed: 07/30/2003 Date Terminated: 09/30/2010 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Scott Konitzer 105033 a/k/a Donna Dawn Konitzer Columbia Correctional Institution PO Box 900 Portage, WI 53901−0900 PRO SE
Brian E Cothroll Foley &Lardner LLP 777 E Wisconsin Ave Milwaukee, WI 53202−5300 414−271−2400 Fax: 414−297−4900 Email: bcothroll@foley.com TERMINATED: 06/17/2010
David M Lucey Foley &Lardner LLP 777 E Wisconsin Ave Milwaukee, WI 53202−5300 414−297−5511 Fax: 414−297−4900 Email: dlucey@foley.com TERMINATED: 06/17/2010
Jennifer A Farley Reinhart Boerner Van Deuren SC 1000 N Water St − Ste 2100 PO Box 2965 Milwaukee, WI 53202 414−297−5576 Fax: 414−297−4900 TERMINATED: 04/25/2005
Kathy L Nusslock Davis &Kuelthau SC For mediation only 111 E Kilbourn Ave − Ste 1400 Milwaukee, WI 53202−6613 414−225−1447 Fax: 414−278−3647 Email: knusslock@dkattorneys.com TERMINATED: 09/03/2010
Thomas L Shriner , Jr Foley &Lardner LLP 777 E Wisconsin Ave Milwaukee, WI 53202−5300 414−297−5601 Fax: 414−297−4900

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 2 of 23
Email: tshriner@foley.com TERMINATED: 06/17/2010

V. Defendant Byran Bartow TERMINATED: 08/22/2006
Defendant Matthew J Frank
Defendant Tom Michlowski

represented by Corey F Finkelmeyer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−7342 Fax: 608−267−8906 Email: finkelmeyercf@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−3094 Fax: 608−267−8906 Email: schmelzerjj@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−267−2222 Fax: 608−267−2223 Email: sullivanfx@doj.state.wi.us ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 3 of 23

Defendant Mario Canziani
Defendant Sharon Zunker
Defendant Tom Burnett TERMINATED: 08/22/2006
Defendant Tom Speech
Defendant

Francis X Sullivan (See above for address) ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) ATTORNEY TO BE NOTICED

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 4 of 23

Jon E Litscher TERMINATED: 07/13/2005

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steve Spanbauer TERMINATED: 07/13/2005

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Med Dir George M Daley TERMINATED: 07/13/2005

Defendant
Unknown sued as Other Members of the Wisconsin Resource Center Staff and Other Members of the Department of Corrections Staff TERMINATED: 07/13/2005

Defendant Dr David Burnett

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Byran Bartow sued as Byron Bartow

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) ATTORNEY TO BE NOTICED

Movant Foley &Lardner LLP

represented by David M Lucey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas L Shriner , Jr (See above for address)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 5 of 23
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian E Cothroll (See above for address) TERMINATED: 06/17/2010 ATTORNEY TO BE NOTICED

Date Filed 07/30/2003
07/30/2003 07/30/2003 07/30/2003 08/11/2003 08/11/2003 08/19/2003 08/20/2003
08/29/2003 09/03/2003
09/03/2003 09/08/2003 09/08/2003 09/08/2003 09/10/2003 09/16/2003
09/22/2003

# Docket Text
1 PRISONER COMPLAINT against Byron Bartow, Matthew J Frank filed by Donna Dawn Konitzer. Consent forms to be distributed for Magistrate Judge Patricia J Gorence. (kah, ) Modified on 5/16/2005 (bet) (Entered: 07/31/2003)
2 MOTION for Leave to Proceed in forma pauperis by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 07/31/2003)
3 MOTION to Appoint Counsel by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 07/31/2003)
Party Tom Michlowski, and Mario Canziani, and Sharon Zunker, and Tom Burnett, and Tom Speech, and Jon E Litscher added. (kah, ) (Entered: 07/31/2003)
4 AMENDED COMPLAINT filed by plaintiff(vkb) Modified on 5/16/2005 (bet) (Entered: 08/12/2003)
Defendant Jon E Litscher terminated (vkb) (Entered: 08/12/2003)
5 LETTER from Donna Dawn Konitzer re: status of case (docket sent 08/19/03). (kah, )
6 ORDER signed by Judge Charles N Clevert: That within 21 days of the date of this order, the plaintiff shall forward to the clerk of this court the sum of $1.08 as an initial partial filing fee in this action. Upon payment of the initial partial filing fee, the court will determine whether the action can continue informa pauperis. IT IS FURTHER ORDERED that copies of this order be sent to the warden of the institution where the inmate is confined and to Charles D. Hoornstra, Assistant Attorney General, Wisconsin Department of Justice, P.O. Box 7857, Madison, WI, 53707−7857. (cc: all counsel)(eeb, ) Modified on 8/20/2003 (eeb, ).
7 LETTER from Donna Dawn Konitzer re: his cases and demanding a jury trial. (kah, )
8 COMBINED MOTION for Extension of Time to Pay Partial Filing Fee and MOTION to Order Defts to Withdraw Monies from Inmate/Pltf Release Fund to Pay Fees by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 09/04/2003)
9 DECLARATION of Pltf Donna Dawn Konitzer (kah, ) (Entered: 09/04/2003)
INITIAL PARTIAL FILING FEE Received: $ 1.08, receipt number 101−115212. (kah, )
10 LETTER from Donna Dawn Konitzer re: consenting to a magistrate judge. (kah, ) (Entered: 09/09/2003)
11 LETTER from Donna Dawn Konitzer re: partial filing fee. (kah, ) (Entered: 09/09/2003)
12 LETTER from Donna Dawn Konitzer re: rejected disbursement request and partial filing fee. (kah, )
13 LETTER from Donna Dawn Konitzer asking the court to grant pltf summary judgment against the defts if they continue to refuse to pay the partial filing fees. (kah, )
14 LETTER from Donna Dawn Konitzer re: partial filing fee. (kah, ) (Entered: 09/23/2003)

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09/24/2003
10/06/2003 10/06/2003 10/06/2003
10/06/2003 10/14/2003 10/14/2003 10/14/2003 10/20/2003 10/20/2003 10/20/2003 10/20/2003 10/23/2003 10/23/2003 10/23/2003 10/27/2003 10/27/2003

15 ORDER SCREENING COMPLAINT PURSUANT TO 28 USC 1915A signed by Judge Charles N Clevert on 09/24/03: IT IS ORDERED thatpltf's 2 Motion for Leave to Proceed in forma pauperis is granted; FURTHER ORDERED that pltf's 3 Motion to Appoint Counsel is denied; 8 Motion for Extension of Time to pay partial filing fee is denied as moot; 8 Motion to Order defts to withdraw monies from inmate/pltf release fund to pay fees is denied as moot; FURTHER ORDERED that the US Marshal shall serve a copy of the complaint, the summons, and this order upon the defts pursuant to Federal Rule of Civil Procedure 4; FURTHER ORDERED defts to file a responsive pleading to the pltf's complaint; the Secretary of the Wisconsin Department of Corrections or his designee shall collect from the pltf's prison trust account the $148.92 balance of the filing fee by collecting monthly payments from the pltf's prison trust account. (cc: all counsel, warden, Charles D. Hoornstra, AAG) (kah, ) (Entered: 09/25/2003)
TRANSMIT Complaint, Notice, Waiver, Order &Consent Forms to US Marshal for service upon all defts. (kah, )
16 MOTION to Order Defts to Provide Pltf with Paper, Envelopes, Postage, and Photocopies as Pltf Deems Necessary to Prosecute Cases 03−C−717 &03−C−753 by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 10/07/2003)
17 BRIEF in Support re 16 MOTION to Order Defts to Provide Pltf with Paper, Envelopes, Postage, and Photocopies as Pltf Deems Necessary to Prosecute Cases 03−C−717 &03−C−753 filed by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 10/07/2003)
18 CERTIFICATE OF SERVICE BY MAIL by Plaintiff Donna Dawn Konitzer (kah, ) (Entered: 10/07/2003)
19 MOTION to Order Defts to Extend Inmate Legal Loan by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 10/15/2003)
20 NOTICE OF ADDITION OF DEFTS by Plaintiff Donna Dawn Konitzer (kah, ) (Entered: 10/15/2003)
21 CERTIFICATE OF SERVICE BY MAIL by Plaintiff Donna Dawn Konitzer (kah, ) (Entered: 10/15/2003)
22 CONSENT to Jurisdiction by US Magistrate Judge by Plaintiff Donna Dawn Konitzer (eeb, )
23 LETTER (courtesy copy) from Donna Dawn Konitzer to Judge Randa re: his pending motions. (kah, ) (Entered: 10/21/2003)
24 MOTION to Appoint Counsel by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 10/21/2003)
25 CERTIFICATE OF SERVICE BY MAIL by Plaintiff Donna Dawn Konitzer (kah, ) (Entered: 10/21/2003)
26 NOTICE of Appearance by Jody J Schmelzer on behalf of Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker. (kah, )
27 REFUSAL of Consent to Jurisdiction by US Magistrate Judge by Defendants Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker (kah, )
28 CERTIFICATE OF SERVICE BY MAIL by Defendants Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker (kah, )
29 Letter REQUEST by Plaintiff Donna Dawn Konitzer for a docket sheet; mailed on 10/28/03. (kah, ) (Entered: 10/28/2003)
30 MOTION to Stay Proceedings by Plaintiff Donna Dawn Konitzer. (kah, ) (Entered: 10/28/2003)

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10/27/2003
10/27/2003 10/27/2003 10/31/2003 10/31/2003 10/31/2003 10/31/2003 10/31/2003 10/31/2003 10/31/2003 11/07/2003 11/07/2003
12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003
12/05/2003 12/15/2003 12/17/2003
12/17/2003

31 ADDENDUM TO COMPLAINTS 03−C−717 &03−C−753 by Donna Dawn Konitzer adding defts Steve Spanbauer, Jon Litscher, and George Daley, MD. (kah, ) (Entered: 10/28/2003)
32 CERTIFICATE OF SERVICE BY MAIL by Plaintiff Donna Dawn Konitzer (kah, ) (Entered: 10/28/2003)
Added Parties Steve Spanbauer, and Jon E Litscher, and George M Daley per pltf's Addendum to Complaint. (kah, ) (Entered: 10/28/2003)
33 WAIVER OF SERVICE Returned Executed by Byron Bartow; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
34 WAIVER OF SERVICE Returned Executed by Matthew J Frank; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
35 WAIVER OF SERVICE Returned Executed by Tom Michlowski; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
36 WAIVER OF SERVICE Returned Executed by Mario Canziani; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
37 WAIVER OF SERVICE Returned Executed by Sharon Zunker; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
38 WAIVER OF SERVICE Returned Executed by Tom Burnett; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
39 WAIVER OF SERVICE Returned Executed by Tom Speech; waiver sent on 10/8/2003. (kah, ) (Entered: 11/03/2003)
40 LETTER from Donna Dawn Konitzer re: his/her gender. (kah, ) (Entered: 11/10/2003)
41 ORDER signed by Judge Charles N Clevert Jr on 11/7/03: IT IS ORDERED that pltf's 16 Motion to Order Defts to Provide Pltf with Paper, Envelopes, Postage, and Photocopies as Pltf Deems Necessary to Prosecute Cases 03−C−717 &03−C−753 is denied as moot; FURTHER ORDERED that 19 Motion to Order Defts to Extend Inmate Legal Loan is denied as moot; FURTHER ORDERED that 24 Motion to Appoint Counsel is denied as moot; FURTHER ORDERED that 30 Motion to Stay Proceedings is granted; FURTHER ORDERED that the Clerk of Court close this case administratively; this case may be reopened if pltf files a written request with the court by 03/02/04 . (cc: all counsel) (kah, ) (Entered: 11/10/2003)
42 MOTION to Appoint Counsel by Donna Dawn Konitzer. (kah, ) (Entered: 12/09/2003)
43 MOTION to Remove Stay by Donna Dawn Konitzer. (kah, ) (Entered: 12/09/2003)
44 LETTER from Donna Dawn Konitzer to Judge Clevert re: dissatisfaction with the recent decisions in the cases before this court. (kah, ) (Entered: 12/09/2003)
45 LETTER (courtesy copy) from Donna Dawn Konitzer to Atty Mary Batt re: proper way to address the pltf. (kah, ) (Entered: 12/09/2003)
46 MOTION to Order Defts to Provide Extension of Inmate Legal Loan and Provide Postage, Paper, Envelopes and Any Photocopies Necessary to Prosecute Cases by Donna Dawn Konitzer. (kah, ) (Entered: 12/09/2003)
47 CERTIFICATE OF SERVICE BY MAIL by Donna Dawn Konitzer (kah, ) (Entered: 12/09/2003)
TRANSMIT File to pro se clerk. (kah, )
48 MOTION for Extension of Time to File Responsive Pleading by Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker. (kah, ) (Entered: 12/18/2003)
49 BRIEF in Opposition re 46 MOTION for Order to Provide Extension of Legal Loan and Provide Postage, Paper, Envelopes, and any Photocopies Necessary to

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12/17/2003 12/22/2003 12/22/2003 01/07/2004
01/07/2004 01/13/2004 01/15/2004 01/15/2004 01/29/2004 01/29/2004 02/02/2004 02/03/2004 02/05/2004 02/05/2004 03/17/2004
03/19/2004 03/19/2004 03/19/2004 03/19/2004

Prosecute this Case filed by Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker. (kah, ) (Entered: 12/18/2003)
50 CERTIFICATE OF SERVICE BY MAIL by Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker (kah, ) (Entered: 12/18/2003)
51 ANSWER AND AFFIRMATIVE DEFENSES to Amended Complaint Under the Civil Rights Act, 42 USC 1983 by Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker.(kah, )
52 CERTIFICATE OF SERVICE BY MAIL by Byron Bartow, Tom Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker (kah, )
53 ORDER signed by Judge Charles N Clevert Jr on 01/07/04: IT IS ORDERED that the Clerk of Court reopen this case; FURTHER ORDERED that pltf's 42 Motion to Appoint Counsel is granted; FURTHER ORDERED that counsel be appointed pursuant to a separate order of the court; FURTHER ORDERED that pltf's 43 Motion to Remove Stay is granted; FURTHER ORDERED that 46 Motion to Order defts to provide extension of inmate legal loan is denied; FURTHER ORDERED that defts 48 Motion for Extension of Time to Answer is granted; FURTHER ORDERED that the US Marshal serve defts Steve Spanbauer, Jon E. Litscher, and George Daley pursuant to Federal Rule of Civil Procedure 4 . (cc: all counsel) (kah, ) (Entered: 01/08/2004)
Case Reopened per 01/07/04 Order (kah, ) (Entered: 01/08/2004)
TRANSMIT Complaint, Notice, Waiver, Order &Consents to US Marshal for service upon defts Spanbauer, Litscher and Daley. (kah, )
54 ORDER by Judge Charles N Clevert Jr that Atty Jennifer A. Frankes is appointed to represent the plaintiff in this action (cc: all counsel)(vkb)
Attorney Jennifer A Frakes added for Donna Dawn Konitzer. (kah, ) (Entered: 01/16/2004)
55 MOTION for Injunctive Relief by Donna Dawn Konitzer. (kah, )
56 CERTIFICATE OF SERVICE BY MAIL by Donna Dawn Konitzer (kah, )
Mail Returned as Undeliverable; return to sender; addressee unknown. Service packet sent to Dr. George M. Daley. (kah, )
57 LETTER from the court to Atty Frakes re: her client filing motions on his own behalf. (kah, ) (Entered: 02/04/2004)
58 NOTICE of Appearance (Addition of Attorney) by Brian E Cothroll on behalf of Donna Dawn Konitzer. (kah, ) (Entered: 02/06/2004)
59 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (kah, ) (Entered: 02/06/2004)
60 NOTICE of Hearing: Telephonic Rule 16 Scheduling Conference set for 4/7/2004 11:00 AM before Judge Charles N Clevert Jr; parties to submit a joint written report outlining their discovery plan by 04/01/04. (cc: all counsel)(kah, ) (Entered: 03/18/2004)
61 WAIVER OF SERVICE Returned Executed by Jon E Litscher; waiver sent on 1/26/2004. (kah, ) (Entered: 03/22/2004)
62 WAIVER OF SERVICE Returned Executed by Steve Spanbauer; waiver sent on 1/26/2004. (kah, ) (Entered: 03/22/2004)
63 Waiver of Service Returned Unexecuted as to Dr. George M. Daley; returned unknown. (kah, ) (Entered: 03/22/2004)
Attorney Jody J Schmelzer added for Jon E Litscher and Steve Spanbauer. (kah, ) (Entered: 03/22/2004)

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03/26/2004 03/26/2004 04/01/2004 04/01/2004 04/08/2004
04/21/2004 04/26/2004
05/05/2004 05/05/2004 05/20/2004
05/20/2004 05/20/2004 05/20/2004 08/02/2004 08/09/2004

64 ANSWER AND AFFIRMATIVE DEFENSES to Prisoner Complaint by Jon E Litscher, Steve Spanbauer.(kah, )
65 CERTIFICATE OF SERVICE BY MAIL by Jon E Litscher, Steve Spanbauer (kah, )
66 JOINT REPORT of Rule 26(f) Plan by all parties (kah, ) (Entered: 04/02/2004)
67 CERTIFICATE OF SERVICE by all parties (kah, ) (Entered: 04/02/2004)
68 ORDER GRANTING LEAVE TO DEPOSE THE PRISONER PLTF signed by Judge Charles N Clevert Jr on 04/08/04: IT IS ORDERED that the defts are granted leave to depose the pltf upon the condition that, at least 14 days before such a deposition, the appropriate notice is served upon pltf's counsel. (cc: all counsel)(kah, ) (Entered: 04/12/2004)
69 ORDER GRANTING WITHDRAWAL OF PLTF'S PRO SE MOTION FOR INJUNCTIVE RELIEF signed by Judge Charles N Clevert Jr on 04/21/04: IT IS ORDERED that pltf's pro se 55 Motion for Injunctive Relief is withdrawn. (cc: all counsel) (kah, ) (Entered: 04/23/2004)
70 ORDER signed by Judge Charles N Clevert Jr on 04/26/04. Parties to complete initial disclosures by 05/31/04. Amended Pleadings due by 7/15/2004. Plaintiffs Expert Witness List due by 8/2/2004 and reports by 08/16/04. Defendants Expert Witness List due by 9/1/2004 and reports by 09/16/04. Discovery due by 10/29/2004. Dispositive Motions due by 11/15/2004. Status Conference set for 11/5/2004 09:30 AM in Courtroom 222 before Judge Charles N Clevert Jr. Scheduling Conference held 04/07/04. (cc: all counsel)(kah, ) (Entered: 04/27/2004)
71 MOTION for Leave to File Amended Pro Se Complaint by Donna Dawn Konitzer. (kah, ) Modified on 5/16/2005 (bet) (Entered: 05/06/2004)
72 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (kah, ) (Entered: 05/06/2004)
73 ORDER GRANTING MOTION FOR LEAVE TO AMEND PLTF'S AMENDED PRO SE COMPLAINT signed by Judge Charles N Clevert Jr on 05/20/04: IT IS ORDERED that pltf's 71 Motion for Leave to File the Second Amended Complaint is granted; FURTHER ORDERED that the clerk of court detach the Second Amended Complaint from the motion (Exhibit A) and file it as of the date of this order; FURTHER ORDERED that defts answer the Second Amended Complaint by 05/19/04. (cc: all counsel) (kah, )
74 SECOND AMENDED COMPLAINT against all defts filed by Donna Dawn Konitzer; Unknown Other Members of the Wisconsin Resource Center Staff and Unknown Other Members of the Department of Corrections Staff added.(kah, )
75 ANSWER AND AFFIRMATIVE DEFENSES to Second Amended Complaint with Jury Demand by Byron Bartow, Tom Burnett, Mario Canziani, George M Daley, Matthew J Frank, Jon E Litscher, Tom Michlowski, Steve Spanbauer, Tom Speech, Sharon Zunker.(kah, )
76 CERTIFICATE OF SERVICE BY MAIL by Byron Bartow, Tom Burnett, Mario Canziani, George M Daley, Matthew J Frank, Jon E Litscher, Tom Michlowski, Steve Spanbauer, Tom Speech, Sharon Zunker (kah, )
77 STIPULATION and Motion to Amend Scheduling Order by all parties (kah, ) (Entered: 08/03/2004)
78 ORDER GRANTING JOINT MOTION TO AMEND SCHEDULING ORDER signed by Judge Charles N Clevert Jr on 08/09/04: IT IS ORDERED that Plaintiff shall name Expert Witnesses by 9/2/2004, and provide Fed. R. Civ. P. 26 expert reports by 09/16/04. Defendants Expert Witnesses due by 10/1/2004, and reports by 10/16/04. Discovery due by 11/29/2004. Dispositive Motions due by 12/15/2004; all other deadlines and requirements set forth in the court's 04/26/04 scheduling order remain. (cc: all counsel)(kah, ) (Entered: 08/10/2004)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 10 of 23

09/15/2004 09/15/2004 09/15/2004 09/17/2004 09/23/2004 10/05/2004
10/05/2004
12/09/2004 12/15/2004 12/15/2004 12/15/2004 12/17/2004
12/17/2004
03/29/2005 04/19/2005
04/25/2005 07/11/2005

79 MOTION to Amend Scheduling Order by Donna Dawn Konitzer. (kah, ) (Entered: 09/16/2004)
80 DECLARATION of Dr. Randi Ettner (kah, ) (Entered: 09/16/2004)
81 DECLARATION of Brian E. Cothroll (kah, ) (Entered: 09/16/2004)
82 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (kah, ) (Entered: 09/20/2004)
83 LETTER from Jody Schmelzer informing the court she no longer opposes the pltf's Motion to Amend the Scheduling Order. (kah, )
84 ORDER GRANTING MOTION TO AMEND THE SCHEDULING ORDER signed by Judge Charles N Clevert Jr on 10/5/04: IT IS ORDERED that pltf's 79 Motion to Amend the scheduling order is granted; pltf to name expert witnesses by 12/2/04 and provide expert reports by 12/16/04; defts to name expert witnessses by 01/03/05 and reports by 01/17/05; discovery to be completed by 03/01/05; dispositive motions due 03/15/05; FURTHER ORDERED the telephonic status conference set for 11/5/04 is reset to 03/10/05 at 9:00 a.m.; the court will initiate the call . (cc: all counsel) (kah, ) (Entered: 10/06/2004)
Set Deadlines/Hearings: Discovery due by 3/1/2005. Plaintiffs Expert Witness List due by 12/2/2004. Defendants Expert Witness List due by 1/3/2005. Dispositive Motions due by 3/15/2005. Telephonic Status Conference reset for 3/10/2005 09:00 AM before Judge Charles N Clevert Jr. (kah, ) (Entered: 10/06/2004)
85 LETTER from Donna Dawn Konitzer (pro se) re: intent to file a motion for injunction. (kah, )
86 LETTER from Brian Cothroll informing the court that the pltf will not be filing an injunction as previously stated. (kah, ) (Entered: 12/16/2004)
87 Unopposed MOTION to Amend Scheduling Order by Donna Dawn Konitzer. (kah, ) (Entered: 12/16/2004)
88 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (kah, ) (Entered: 12/16/2004)
89 ORDER GRANTING UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER signed by Judge Charles N Clevert Jr on 12/17/04: IT IS ORDERED that pltf's 87 Motion to Amend the Scheduling Order is granted; FURTHER ORDERED that pltf's expert reports are due 01/17/05; defts experts due 2/1/05, and provide expert reports by 02/17/05; all discovery is due by 03/29/05; dispositive motions due 04/15/05; FURTHER ORDERED that the telephonic status conference set for 03/10/05 at 9:00a.m. is reset to 04/08/05 at 9:30 a.m.; the court will initiate the call. (cc: all counsel) (kah, ) (Entered: 12/20/2004)
Set Deadlines/Hearings: Discovery due by 3/29/2005. Plaintiffs Expert Witness List due by 1/17/2005. Defendants Expert Witness List due by 2/1/2005. Motions due by 4/15/2005. Telephonic Status Conference reset for 4/8/2005 09:30 AM before Judge Charles N Clevert Jr. (kah, ) (Entered: 12/20/2004)
90 STIPULATION and Motion to Amend Scheduling Order by all parties (kah, ) (Entered: 03/30/2005)
91 ORDER APPROVING STIPULATION AND AMENDING SCHEDULING ORDER signed by Judge Charles N Clevert Jr on 04/19/05. Discovery extended to 6/30/2005. Dispositive Motions extended to 7/15/2005. (cc: all counsel)(kah, ) (Entered: 04/22/2005)
92 LETTER from Jennifer Farley informing the court she will no longer be representing the pltf in this case. (kah, )
93 STIPULATION to Amend the Complaint by all parties (kah, ) (Entered: 07/12/2005)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 11 of 23

07/11/2005 07/13/2005
07/13/2005
07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/20/2005
07/20/2005 08/02/2005
08/03/2005 08/12/2005
08/29/2005 08/29/2005 08/31/2005
09/13/2005

94 CERTIFICATE OF SERVICE by all parties (kah, ) (Entered: 07/12/2005)
95 ORDER APPROVING STIPULATION REGARDING THE FILING OF THE THIRD AMENDED COMPLAINT signed by Judge Charles N Clevert Jr on 07/13/05: IT IS ORDERED that the time for filing an amended complaint is extended to the date of this order; the clerk of court is directed to detach the Third Amended Complaint from the Stipulation and docket it as of 07/13/05; FURTHER ORDERED that defts have 10 business days from the date of this order to file a responsive pleading to the Third Amended Complaint. (cc: all counsel)(kah, ) (Entered: 07/15/2005)
96 THIRD AMENDED COMPLAINT against Tom Michlowski, Mario Canziani, Sharon Zunker, Tom Burnett, Tom Speech, Byron Bartow, Matthew J Frank filed by Donna Dawn Konitzer.(kah, ) (Entered: 07/15/2005)
97 MOTION for Summary Judgment by all defendants. (kah, ) (Entered: 07/18/2005)
98 BRIEF in Support re 97 MOTION for Summary Judgment filed by all defendants. (kah, ) (Entered: 07/18/2005)
99 AFFIDAVIT of David E. Burnett, M.D. (kah, ) (Entered: 07/18/2005)
100 AFFIDAVIT of Theresa A. Murphy (kah, ) (Entered: 07/18/2005)
101 AFFIDAVIT of Daniel A. Westfield (kah, ) (Entered: 07/18/2005)
102 AFFIDAVIT of Mario Canziani (kah, ) (Entered: 07/18/2005)
103 AFFIDAVIT of Christine Freeland (kah, ) (Entered: 07/18/2005)
104 AFFIDAVIT of Katherine Bovee − (IN PAPER FORMAT) (kah, ) (Entered: 07/18/2005)
105 Proposed Findings of Fact by all defendants − (IN PAPER FORMAT). (kah, ) (Entered: 07/18/2005)
106 CERTIFICATE OF SERVICE BY MAIL by all defendants (kah, ) (Entered: 07/18/2005)
107 ANSWER and Affirmative Defenses to Third Amended Complaint by Tom Michlowski, Mario Canziani, Sharon Zunker, Tom Burnett, Tom Speech, Byron Bartow, Matthew J Frank.(kah, )
108 CERTIFICATE OF SERVICE BY MAIL by Tom Michlowski, Mario Canziani, Sharon Zunker, Tom Burnett, Tom Speech, Byron Bartow, Matthew J Frank (kah, )
109 LETTER from plaintiff (personally) requesting that the court not accept any response to defendants' motion for summary judgment until plaintiff has notified the court that he has met with his attorneys; also informing the court that he believes the defendants are violating his attorney client privilege (vkb)
110 LETTER from Brian Cothroll re: 07/29/05 letter the court received from the pltf. (kah, )
111 ORDER signed by Judge Charles N Clevert Jr on 08/12/05 extending pltf's time in which to respond to defts Motion for Summary Judgment to 08/31/05. (cc: all counsel)(kah, ) (Entered: 08/18/2005)
112 STIPULATION Extending Pltf's Time to Respond to Defts Motion for Summary Judgment to 09/14/05 by all parties (kah, ) (Entered: 08/30/2005)
113 CERTIFICATE OF SERVICE by all parties (kah, ) (Entered: 08/30/2005)
114 ORDER APPROVING STIPULATION signed by Judge Charles N Clevert Jr on 08/31/05: IT IS ORDERED that pltf's time in which to respond to defts Motion for Summary Judgment is extended from 08/31/05 to 09/14/05. (cc: all counsel)(kah, ) (Entered: 09/02/2005)
115 STIPULATION Extending Plaintiff's time to Respond to Defendant's Motion for Summary Judgment to 09/30/05 and Extending defendants' Time to Reply to 11/29/05 by all parties. (jc)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 12 of 23

09/13/2005
10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 10/03/2005 11/29/2005
11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 12/15/2005

116 ORDER approving stipulation extending plaintiff's time to respond to deffendants' motion for summary judgment to 09/30/05 and extending deffendants' time to reply to 11/29/05 signed by Judge Charles N Clevert Jr on 09/13/05. (cc: all counsel)(jc) (Entered: 09/15/2005)
117 BRIEF in Opposition re 97 MOTION for Summary Judgment filed by Donna Dawn Konitzer − (IN PAPER FORMAT). (kah, ) (Entered: 10/04/2005)
118 RESPONSE to Defts Proposed Findings of Fact filed by Donna Dawn Konitzer − (IN PAPER FORMAT). (kah, ) (Entered: 10/04/2005)
119 Proposed Findings of Fact by Donna Dawn Konitzer − (IN PAPER FORMAT). (kah, ) (Entered: 10/04/2005)
120 DECLARATION of Brian E Cothroll − (IN PAPER FORMAT) (kah, ) (Entered: 10/04/2005)
121 DECLARATION of Donna Dawn (f/k/a Scott) Konitzer − (IN PAPER FORMAT) (kah, ) (Entered: 10/04/2005)
122 DECLARATION of Theodore Witheril (kah, ) (Entered: 10/04/2005)
123 DECLARATION of Wayne Polakowski (kah, ) (Entered: 10/04/2005)
124 DECLARATION of Gerald J. Wellens, Ph.D (kah, ) (Entered: 10/04/2005)
125 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (kah, ) (Entered: 10/04/2005)
126 REPLY to Pltf's Responses to Defts Proposed Findings of Fact filed by Tom Michlowski, Mario Canziani, Sharon Zunker, Tom Burnett, Tom Speech, Byron Bartow, Matthew J Frank − (IN PAPER FORMAT). (kah, ) (Entered: 11/30/2005)
127 RESPONSE to Pltf's Proposed Findings of Fact filed by all defendants − (IN PAPER FORMAT). (kah, ) (Entered: 11/30/2005)
128 AFFIDAVIT of Jody J. Schmelzer − (IN PAPER FORMAT) (kah, ) (Entered: 11/30/2005)
129 SUPPLEMENTAL AFFIDAVIT of Katherine Bovee − (IN PAPER FORMAT) (kah, ) (Entered: 11/30/2005)
130 REPLY BRIEF in Support re 97 MOTION for Summary Judgment filed by all defendants. (kah, ) (Entered: 11/30/2005)
131 SUPPLEMENTAL AFFIDAVIT of Daniel A. Westfield (kah, ) (Entered: 11/30/2005)
132 SUPPLEMENTAL AFFIDAVIT of Christine Freeland (kah, ) (Entered: 11/30/2005)
133 SUPPLEMENTAL AFFIDAVIT of Mario T. Canziani (kah, ) (Entered: 11/30/2005)
134 SUPPLEMENTAL AFFIDAVIT of David E. Burnett, M.D. (kah, ) (Entered: 11/30/2005)
135 AFFIDAVIT of Leon Lipp (kah, ) (Entered: 11/30/2005)
136 AFFIDAVIT of Angela M. Laufenberg (kah, ) (Entered: 11/30/2005)
137 AFFIDAVIT of Paulette J. Sanders (kah, ) (Entered: 11/30/2005)
138 AFFIDAVIT of Michael Beck (kah, ) (Entered: 11/30/2005)
139 AFFIDAVIT of Wendy M. Monfils (kah, ) (Entered: 11/30/2005)
140 CERTIFICATE OF SERVICE BY MAIL by all defendants (kah, ) (Entered: 11/30/2005)
141 LETTER from Donna Dawn Konitzer (pro se) advising the court some motions will be filed on pltf's behalf. (kah, )

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 13 of 23

12/15/2005 12/19/2005 01/13/2006
01/17/2006
01/17/2006
01/17/2006 01/17/2006 01/17/2006 01/20/2006
01/20/2006
01/23/2006 01/26/2006 01/27/2006 01/31/2006
02/22/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 03/31/2006
03/31/2006

142 Letter REQUEST by Donna Dawn Konitzer for the court to schedule a hearing on defts pending Motion for Summary Judgment. (kah, )
143 LETTER from Jody Schmelzer in response to pltf's request for hearing on Motion for summary judgment. (kah, ) (Entered: 12/20/2005)
144 LETTER from Atty. Cothroll (for plaintiff) re: the Inmate Sex Change Prevention Act; informing the court that he is preparing a motion for injunctive relief and supporting papers and requesting that the Court schedule a hearing on this matter so as to permit a decision before 1/24/06 (vkb)
145 EMERGENCY MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction Enjoining Defts From Stopping Pltf's Hormonal Therapy by Donna Dawn Konitzer. (kah, ) (Entered: 01/18/2006)
146 BRIEF in Support re 145 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction filed by Donna Dawn Konitzer. (kah, ) Additional attachment(s) added on 1/19/2006 (kah, ). (Entered: 01/18/2006)
147 DECLARATION of Leon W. Todd (kah, ) (Entered: 01/18/2006)
148 DECLARATION of Frederic M. Ettner, M.D. (kah, ) (Entered: 01/18/2006)
149 DECLARATION of Randi C. Ettner, Ph.D. (kah, ) (Entered: 01/18/2006)
150 ORDER signed by Judge Charles N Clevert Jr on 1/20/2006 denying 145 Motion for TRO, granting 145 Motion for Preliminary Injunction . Telephonic conference is scheduled for 1/27/2006 at 11:30 a.m. and a full hearing on plaintiff's motion for preliminary injunction is scheduled for 2/7/2006 @ 1:00 p.m. (cc: all counsel) ((mj), C. N. CLEVERT, JR.) (Entered: 01/23/2006)
Set Deadlines/Hearings: Motion Hearing set for 2/7/2006 01:00 PM in Courtroom 222 before Judge Charles N Clevert Jr. Telephonic Status Conference set for 1/27/2006 11:30 AM before Judge Charles N Clevert Jr. (kah, ) (Entered: 01/24/2006)
Copy of Order on Motion for TRO,, Order on Motion for Preliminary Injunction, 150 sent via U.S. Mail to Jody Schmelzer ((mj), C. N. CLEVERT, JR.)
151 LETTER from pltf (pro se) re: upcoming hearing. (kah, )
152 LETTER from the Court to Attorney Brian E. Cothroll regarding pro se filings. (cc: All Counsel) ((mj), C. N. CLEVERT, JR.)
153 ORDER EXTENDING PLAINTIFF'S PRELIMINARY INJUNCTION barring defendants from withdrawing plaintiff's hormonal therapy andwithdrawing defendants' 97 Motion for Summary Judgment signed by Judge Charles N Clevert Jr on 1/31/2006 . A full hearing on plaintiff's motion for preliminary injunction will be held on 8/24/2006 at 8:30 a.m. (cc: all counsel) ((mj), C. N. CLEVERT, JR.)
154 LETTER from Michelle Lynne Kosilek re: pltf's hair loss; w/attached courtesy copy of letter to David Lucey at Foley &Lardner. (kah, )
155 MOTION for Partial Summary Judgment by all defendants. (Schmelzer, Jody)
156 BRIEF in Support re 155 MOTION for Partial Summary Judgment filed by all defendants. (Schmelzer, Jody)
157 CERTIFICATE OF SERVICE by all defendants (Schmelzer, Jody)
158 Proposed Findings of Fact by all defendants (Schmelzer, Jody)
159 STIPULATION Extending Plaintiff's Time to Respond to Defendant's Summary Judgment Motion to April 14, 2006 by Donna Dawn Konitzer (Attachments: # 1 Text of Proposed Order Regarding Stipulation Extending Plaintiff's Time to Respond to Defendant's Summary Judgment Motion to April 14, 2006)(Cothroll, Brian)
160 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (Cothroll, Brian)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 14 of 23

04/03/2006
04/14/2006
04/14/2006 04/17/2006
04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 05/18/2006
05/19/2006 05/19/2006
05/23/2006 05/24/2006 05/24/2006
05/24/2006 05/24/2006 05/25/2006 06/05/2006 06/07/2006 06/19/2006

161 ORDER approving stipulation extending plaintiff's time to respond to defendant's motion for summmary judgment to April 14, 2006, signed by Judge Charles N Clevert Jr on 4/3/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.) (Entered: 04/05/2006)
162 STIPULATION Extending Plaintiff's Time to Respond to Defendants' Motion for Summary Judgment to April 28, 2006 and Extending Defendants' Time to Reply to May 19, 2006 by Donna Dawn Konitzer (Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
163 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (Cothroll, Brian)
164 ORDER APPROVING STIPULATION EXTENDING PLTF'S TIME TO RESPOND TO DEFTS MOTION FOR SUMMARY JUDGMENT to 4/28/06 signed by Judge Charles N Clevert Jr on 4/17/06; defts to reply by 5/19/06. (cc: all counsel)(kah, ) (Entered: 04/18/2006)
165 BRIEF in Opposition re 155 MOTION for Partial Summary Judgment filed by Donna Dawn Konitzer. (Cothroll, Brian)
166 RESPONSE (Amended) to Defendants Proposed Findings of Fact filed by Donna Dawn Konitzer. (Cothroll, Brian)
167 Proposed Findings of Fact by Donna Dawn Konitzer (Cothroll, Brian)
168 DECLARATION of Donna Dawn Konitzer (Amended) (Cothroll, Brian)
169 DECLARATION of Brian Cothroll (Supplemental) (Attachments: # 1 Exhibit 212# 2 Exhibit 213)(Cothroll, Brian)
170 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (Cothroll, Brian)
171 STIPULATION Extending Defendants' Time To File Reply Materials In Support of Defendants' Motion for Summary Judgment to May 24, 2006 by all defendants (Schmelzer, Jody)
172 Docket Annotation to Atty Schmelzer re: doc. 171. (kah, )
173 ORDER appproving stipulation extending defendants' time to file reply materials in support of defendants' motion for summary judgment to May 24, 2006, signed by Judge Charles N Clevert Jr on 5/19/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.)
174 LETTER from Donna Dawn Konitzer (pro se) re: problems that need to be brought to the judges attention. (kah, )
175 REPLY BRIEF in Support re 155 MOTION for Partial Summary Judgment filed by all defendants. (Schmelzer, Jody)
176 REPLY to Plaintiff's Amended Responses to Defendants' Proposed Findings of Fact filed by all defendants. (Attachments: # 1 Affidavit Thomas Speech)(Schmelzer, Jody)
177 RESPONSE to Plaintiff's Amended and Additional Proposed Findigns of Fact filed by all defendants. (Schmelzer, Jody)
178 CERTIFICATE OF SERVICE by all defendants (Schmelzer, Jody)
179 LETTER from the Court to pltf in response to 5/10/06 letter to the judge. (cc: All Counsel) (kah, ) (Entered: 05/26/2006)
180 LETTER (courtesy copy) from pltf to Atty Cothroll re: his case. (kah, ) (Entered: 06/06/2006)
181 LETTER from pltf to Law Clerk w/attached letters to Atty Cothroll. (kah, ) (Entered: 06/08/2006)
182 LETTER from the Court to pltf re: recent correspondence sent to the court. (cc: All Counsel) (kah, ) (Entered: 06/20/2006)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 15 of 23

08/01/2006
08/01/2006 08/01/2006
08/10/2006 08/10/2006 08/17/2006 08/17/2006 08/17/2006 08/17/2006 08/31/2006
08/31/2006 08/31/2006 08/31/2006
09/01/2006 09/18/2006
09/18/2006 09/19/2006
09/29/2006
09/29/2006 09/29/2006
10/11/2006 10/11/2006 10/11/2006

183 STIPULATION To Enter Preliminary Injunction Barring Defendants From Withdrawing Plaintiff's Hormone Therapy by all defendants. (Attachments: # 1)(Schmelzer, Jody)
184 CERTIFICATE OF SERVICE by all defendants (Schmelzer, Jody)
185 ORDER ENTERING PRELIMINARY INJUNCTION barring defendants from withdrawing plaintiff's hormone therapy signed by Judge Charles N Clevert Jr on 8/1/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.) (Entered: 08/02/2006)
186 MOTION to Withdraw as Attorney for Plaintiff by Foley &Lardner LLP. (Cothroll, Brian)
187 CERTIFICATE OF SERVICE by Foley &Lardner LLP (Cothroll, Brian)
188 NOTICE of Intent to Oppose Motion to Withdraw as Counsel by Donna Dawn Konitzer (kah, )
189 MOTION for Writ of Habeas Corpus Ad Testificandum/Prosequendum by Donna Dawn Konitzer. (kah, )
190 LETTER (courtesy copy) from Donna Dawn Konitzer to Brian Cothroll and David Lucey re: motion to withdraw. (kah, )
191 CERTIFICATE OF SERVICE BY MAIL by Donna Dawn Konitzer (kah, )
192 STIPULATION to Extend Deadline for Plaintiff to Respond to Motion for Leave to Withdraw by {GetPersonName(rep). (Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
193 CERTIFICATE OF SERVICE by Foley &Lardner LLP (Cothroll, Brian)
194 LETTER from Jody J. Schmelzer re Foley &Lardner LLP's motion for leave to withdraw as counsel for plaintiff. (Schmelzer, Jody)
195 ORDER Approving 192 Stipulation Extending Plaintiff's time to respond to motion for leave to withdraw filed by Foley &Lardner LLP signed by Judge Charles N Clevert Jr on 8/31/2006. Response due 9/21/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.) (Entered: 09/01/2006)
Copy of Order, 195 sent via U.S. Mail to Donna Dawn Konitzer ((mj), C. N. CLEVERT, JR.)
196 STIPULATION to Extend Deadline for Plaintiff to Respond to Motion for Leave to Withdraw Until October 2, 2006 by Foley &Lardner LLP. (Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
197 CERTIFICATE OF SERVICE by Foley &Lardner LLP (Cothroll, Brian)
198 ORDER Approving Stipulation Extending Plaintiff's Time to Respond to Motion for Leave to Withdraw to October 2, 2006, signed by Judge Charles N Clevert Jr on 9/19/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.) (Entered: 09/20/2006)
199 STIPULATION to Extend Deadline for Plaintiff to Respond to Motion for Leave to Withdraw Until October 12, 2006 by Foley &Lardner LLP. (Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
200 CERTIFICATE OF SERVICE by Foley &Lardner LLP (Cothroll, Brian)
201 ORDER Approving Stipulation Extending Plaintiff's Time to Respond to Motion for Leave to Withdra to October 12, 2006, signed by Judge Charles N Clevert Jr on 9/29/2006. (cc: all counsel)((mj), C. N. CLEVERT, JR.) (Entered: 10/04/2006)
202 LETTER from pltf explaining delay in filing a response. (kah)
203 BRIEF in Opposition filed by Donna Dawn Konitzer re 186 MOTION to Withdraw as Attorney for Plaintiff. (kah)
204 DECLARATION of Michelle Lynne Kosilek. (kah)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 16 of 23

10/17/2006
10/17/2006
10/24/2006 10/24/2006 10/24/2006 10/24/2006 10/25/2006 11/17/2006
11/28/2006
11/28/2006 10/10/2007
10/16/2007 10/24/2007
10/24/2007 11/16/2007 01/18/2008
01/22/2008
01/22/2008 03/29/2008
03/29/2008 04/09/2008
05/17/2008

205 NOTICE of Telephonic Hearing on Motion 186 to Withdraw as Attorney for Plaintiff : (cc: all counsel, Donna Dawn Konitzer; Social Worker, Wisconsin Resource Center) Motion Hearing set for 11/22/2006 11:30 AM before Judge Charles N Clevert Jr. ((mj), C. N. CLEVERT, JR.)
206 CORRECTED NOTICE of Hearing on Motion 186 to Withdraw as Attorney for Plaintiff : Motion Hearing reset for 11/17/2006 11:30 AM before Judge Charles N Clevert Jr. ((mj), C. N. CLEVERT, JR.)
207 REPLY BRIEF in Support filed by Foley &Lardner LLP re 186 MOTION to Withdraw as Attorney for Plaintiff. (Cothroll, Brian)
208 DECLARATION of Thomas L. Shriner, Jr. (Cothroll, Brian)
209 DECLARATION of Brian E. Cothroll. (Cothroll, Brian)
210 CERTIFICATE OF SERVICE by Foley &Lardner LLP (Cothroll, Brian)
211 Docket Annotation to Atty Cothroll and Shriner re: docs 207,208 &210. (kah)
212 Minutes: Motion Hearing held on 11/17/2006 before Judge Charles N Clevert Jr: 186 Motion to Withdraw as Attorney held in abeyance; finding as moot 189 Motion for Writ of Habeas Corpus Ad Testificandum/Prosequendum. (Tape #11:37:47 − 12:11:34.) ((mj), C. N. CLEVERT, JR.) (Entered: 11/22/2006)
213 7.4 MOTION for Leave to File Surreply in Opposition to Defendants' Motion for Partial Summary Judgment by Donna Dawn Konitzer. (Attachments: # 1 Exhibit A − Proposed Surreply# 2 Exhibit B − Surreply Proposed Findings of Fact# 3 Exhibit C − Supplemental Declaration of Donna Dawn Konitzer# 4 Exhibit D − Surreply Declaration of Brian Cothroll)(Cothroll, Brian)
214 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (Cothroll, Brian)
215 LETTER from pltf (pro se) re: his attorney and case and also REQUEST for emergency hearing − (Photographs are SEALED per court order). (kah) Additional attachment(s) added on 10/24/2007 (kah). Modified text on 10/24/2007 (kah).
216 LETTER from Anthony Riach written on behalf of pltf Konitzer re: his case. (kah)
217 ORDER SEALING PORTION OF DOCKET NO. 215 signed by Judge Charles N Clevert Jr on 10/24/07; the photographs attached to document 215 are sealed, except as otherwise directed by the court. (cc: all counsel)(kah)
218 Minute Entry for proceedings held before Judge Charles N Clevert Jr: Status Conference held on 10/24/2007 ((mj), C. N. CLEVERT, JR.)
219 LETTER from Donna Dawn Konitzer re: his attorney and this case. (kah)
220 STIPULATION to Reopen Discovery Relating to Defendants' Administration of Plaintiff's Hormone Therapy Pursuant to the Court's Preliminary Injunction by Donna Dawn Konitzer. (Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
221 ORDER Reopening Discovery Relating to Defendants' Administration of Plaintiff's Hormone Therapy pursuant to the Court's Preliminary Injunction re 220 Stipulation, filed by Donna Dawn Konitzer signed by Judge Charles N Clevert Jr on 1/22/08. (cc: all counsel)((mj), C. N. CLEVERT, JR.)
Set Deadlines/Hearings: Discovery due by 3/31/2008 (kah) (Entered: 01/23/2008)
222 STIPULATION to Extend Discovery Regarding Defendants' Administration of Ms. Konitzer's Hormone Therapy Pursuant to the Preliminary Injunction until May 31, 2008 by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
223 CERTIFICATE OF SERVICE by all plaintiffs (Cothroll, Brian)
224 ORDER signed by Judge Charles N Clevert, Jr on 4/9/08 APPROVING 222 Stipulation extending discovery relating to defendant's administration of plaintiff's hormone therapy. (cc: all counsel)((cef) C. N. Clevert, Jr.) (Entered: 04/11/2008)
225 STIPULATION to Extend Discovery Relating to Defendants' Administration of Plaintiff's Hormone Therapy to July 31, 2008 by Donna Dawn Konitzer.

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 17 of 23

05/17/2008 05/21/2008
07/31/2008 08/01/2008 08/01/2008 08/01/2008
08/29/2008
05/21/2009
05/21/2009 01/30/2010
02/11/2010 03/31/2010
04/09/2010 05/10/2010 05/11/2010 05/11/2010 05/12/2010
05/13/2010

(Attachments: # 1 Text of Proposed Order)(Cothroll, Brian)
226 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (Cothroll, Brian)
227 ORDER Approving Stipulation Extending Discovery Relating to Defendants' Administration of Plaintiff's Hormone Therapy pursuant to the Court's Preliminary Injunction to July 31, 2008 signed by Judge Charles N Clevert, Jr on 5/21/08. (cc: all counsel)((mj), C. N. CLEVERT, JR.) (Entered: 05/22/2008)
228 STIPULATION Extending Limited Discovery into the Administration of Plaintiff's Hormone Therapy until September 15, 2008 by Donna Dawn Konitzer. (Cothroll, Brian)
229 PROPOSED Order Approving Stipulation Extending Limited Discovery into Administration of Plaintiff's Hormone Therapy until September 15, 2008 filed by Donna Dawn Konitzer. (Cothroll, Brian)
230 Docket Annotation to Atty Cothroll re: doc. 229. (kah)
231 ORDER signed by Judge Charles N Clevert, Jr on 8/1/08 re 228 Stipulation filed by Plaintiff. It is ordered that discovery regarding defendants' administration of the plaintiff's hormone therapy pursuant to the preliminary injunction is extended until September 15, 2008. (cc: all counsel)((cef), C. N. Clevert, Jr.)
232 ORDER Denying Without Prejudice Foley and Lardner's Motion to Withdraw 186 and Granting Defendants' Motion for Leave to File Surreply 213 signed by Judge Charles N Clevert, Jr on 8/29/08. (cc: all counsel) ((cef), C. N. Clevert, Jr.) Modified file date on 9/3/2008 (kah). (Entered: 09/02/2008)
233 LETTER from Brian E. Cothroll, Counsel to Plaintiff Donna Dawn Konitzer enclosing. (Attachments: # 1 Exhibit A (Preliminary Injunction Orders entered in Battista v Dennehy, Civ Action No. 05−11456−DPW (D. Mass.)), # 2 Exhibit B (Preliminary Injunction Order entered in Brugliera v Commissioner of Mass Dept of Corrections, Civ Action No. 07−40323−JLT (D. Mass.)))(Cothroll, Brian)
234 CERTIFICATE OF SERVICE by Donna Dawn Konitzer (Cothroll, Brian)
235 LETTER from Brian E. Cothroll, counsel to Donna Dawn Konitzer , enclosing. (Attachments: # 1 Exhibit A: Dec. 16, 2009 Memorandum Decision in Brugliera v. Comm'r of Mass. Dep't of Corrections, D. Mass. Case No. 07−40323−JLT, # 2 Exhibit B: Preliminary Injunction Order in Brugliera v. Comm'r of Mass. Dep't of Corrections)(Cothroll, Brian)
236 ORDER authorizing the filing of the supplemental materials. (cc: all counsel)((cef), C. N. Clevert, Jr.) (Entered: 02/12/2010)
237 ORDER Granting in Part and Denying in Part Defendants' Motion For Partial Summary Judgment 155 . Further ordering that plaintiff's request that only female correctional officers conduct any future strip searches of the plaintiff is denied. (cc: all counsel) ((cef), C. N. Clevert, Jr.)
NOTICE: Status Conference is set for 5/13/10 at 2:00 PM in Courtroom 222 before Chief Judge Charles N Clevert Jr. ((cef), C. N. Clevert, Jr.)
238 DECISION On Granting In Part and Denying In Part Defendants' Motion For Partial Summary Judgment. (cc: all counsel)((cef), C. N. Clevert, Jr.)
239 REQUEST by Donna Dawn Konitzer to attend May 14th hearing. (kah)
240 MOTION for Reconsideration by Donna Dawn Konitzer. (Attachments: # 1 Letter)(kah) (Entered: 05/12/2010)
241 NOTICE of Appearance by Francis X Sullivan on behalf of Byran Bartow(sued as Byron Bartow), David Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker. Attorney(s) appearing: Francis X Sullivan (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
242 MINUTE ORDER. Status Conference held on 5/13/10. Plaintiff's pro se motion 240 for reconsideration and plaintiff's pro se request 239 are moot inasmuch as the

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 18 of 23

05/28/2010 06/04/2010 06/04/2010 06/09/2010 06/15/2010 06/16/2010 06/16/2010 06/17/2010
06/30/2010 06/30/2010 07/01/2010 07/21/2010
07/21/2010 07/26/2010 07/27/2010 07/28/2010 07/28/2010 08/02/2010

submissions were tendered without the endorsement of counsel, and therefore, cannot be considered by the court. STATUS CONFERENCE is set for 6/17/10 at 9:30 AM in Courtroom 222. (Tape #2:08:17 to 2:31:26) ((kwb), C. N. Clevert, Jr.) (Entered: 05/14/2010)
243 REQUEST by Donna Dawn Konitzer for a hearing re: Atty Cothroll. (kah)
244 MOTION to Withdraw as Attorney for Plaintiff (Renewed) by Foley &Lardner LLP. (Cothroll, Brian)
245 CERTIFICATE OF SERVICE by Foley &Lardner LLP (Cothroll, Brian)
246 LETTER from the Court to Counsel. (cc: All Counsel) ((cef), C. N. Clevert, Jr.)
247 MOTION for Extension of Time by Donna Dawn Konitzer. (kah) (Entered: 06/16/2010)
248 LETTER from Francis X Sullivan requesting to appear by telephone. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
TEXT ONLY ORDER Granting Request 248 of Attorneys Sullivan and Schmelzer to appear by telephone for the Status Conference set for 6/17/10 at 9:30 AM. ((kwb), C. N. Clevert, Jr.)
249 MINUTE ORDER. Status Conference held on 6/17/10. Foley &Lardner's Motion to Withdraw as Counsel for Plaintiff is Granted effective 2 weeks from today, unless prior to that time Foley seeks to withdraw the request. 244 Plaintiff Konitzer's pro se Motion for Additional Time to File a Response in Opposition to Foley &Lardner's Motion to Withdraw is Denied as the record is sufficient to support Foley's Motion to Withdraw and plaintiff disagrees with Foley's handling of his case. 247 A Telephonic Status Conference is set for 7/21/10 at 9:00 AM. The court will initiate the call. Copy of Minute Order sent to Plaintiff Konitzer at Columbia Correctional via U.S. Mail. (Tape #9:41:07 to 10:16:49) ((kwb), C. N. Clevert, Jr.) (Entered: 06/21/2010)
250 LETTER from Foley &Lardner LLP Notifying Court of Continued Intent to Seek Leave to Withdraw as Appointed Counsel for Plaintiff. (Cothroll, Brian)
251 CERTIFICATE OF SERVICE by Foley &Lardner LLP of June 30, 2010 Letter to the Court (Cothroll, Brian)
252 LETTER from Michelle Lynne Kosilek re: Donna Dawn. (kah) (Entered: 07/12/2010)
253 MINUTE ORDER. Telephonic Status Conference held on 7/21/10. Based upon the statements of the parties, the court will refer this matter to Magistrate Judge Patricia J. Gorence for mediation. If this matter remains unresolved, a trial to the court will proceed on 9/13/10 at 8:30 AM in Courtroom 222. See Minutes for additional information. Copy of Minute Order sent to Plaintiff Konitzer at Columbia Correctional via US Mail. (Tape #9:17:41 to 9:37:45) ((kwb), C. N. Clevert, Jr.)
254 ORDER REFERRING CASE to Magistrate Judge Patricia J Gorence for mediation. (cc: all counsel; via U.S. Mail to Plaintiff)((cef), C. N. Clevert, Jr.)
Mail Returned as Undeliverable. Order 254 sent to Donna Dawn Konitzer returned Addressee Unknown − REMAILED to "Inmate Konitzer". (kah)
255 LETTER from Magistrate Judge Patricia J. Gorence to plaintiff with agreement to limited appointment of attorney for mediation assistance. (mlm)
256 REQUEST by Donna Dawn Konitzer for local rules, forms and copy of docket (mailed local rules, complaint form and docket). (kah)
257 LETTER from plaintiff to Judge Gorence re: upcoming mediation. (copy mailed to Atty Nusslock) (mlm)
258 BRIEF to the Court filed by Donna Dawn Konitzer. (kah)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 19 of 23

08/02/2010 08/09/2010 08/09/2010 08/18/2010
08/18/2010 08/18/2010
08/18/2010 08/20/2010 08/20/2010 08/20/2010 08/20/2010 08/20/2010 08/20/2010 08/24/2010 09/01/2010
09/03/2010 09/03/2010
09/10/2010 09/10/2010 09/14/2010

Mail Returned as Undeliverable. Letter 255 sent to Donna Dawn Konitzer returned "not the legal name" − REMAILED to "Inmate Konitzer". (mlm)
259 AGREEMENT to Limited Appointment of Attorney for Mediation Assistance signed by Donna Dawn Konitzer. (mlm)
260 LETTER from plaintiff to Judge Gorence re: the case. (mlm)
TEXT ONLY ORDER: The trial scheduled for 9/13/10 is removed from the court's calender pending mediation. Pretrial reports need not be filed at this time. If necessary, upon completion of mediation, the court will set new dates. (cc: all counsel)((cef), C. N. Clevert, Jr.)
261 ORDER Appointing Pro Bono CounselKathy L. Nusslock in Mediation Proceeding signed by Magistrate Judge Patricia J Gorence on 8/18/10. (cc: all counsel)(kaf)
262 ORDER RE: MEDIATION SEE ORDER FOR DETAILS ( Mediation Hearing set for 9/1/2010 10:00 AM in Courtroom 264, 517 E. Wisconsin Ave., Milwaukee, WI 53202 before Magistrate Judge Patricia J Gorence.) signed by Magistrate Judge Patricia J Gorence on 8/18/10. (cc: all counsel, copy sent via US Mail Scott Konitzer a/ka/ Donna Dawn Konitzer)(kaf)
Copy of Order 261 Appointing Pro Bono Counsel in Mediation Proceedings sent via U.S. Mail to Scott Konitzer a/k/a Donna Dawn Konitzer. (kaf)
263 LETTER from Donna Dawn Konitzer re: this case. (Attachments: # 1 Cover page)(kah)
264 MOTION for Writ of Habeas Corpus Ad Testificandum by Scott Konitzer. (Attachments: # 1 Text of Proposed Order, # 2 Letter)(kah)
265 MOTION to Compel All Parties, Counsel, Witnesses, and Court Personnel to Follow Rules by Scott Konitzer. (Attachments: # 1 Text of Proposed Order)(kah)
266 MOTION to Substitute Parties by Scott Konitzer. (Attachments: # 1 Text of Proposed Order)(kah)
267 MOTION for Extension of Time by Scott Konitzer. (Attachments: # 1 Text of Proposed Order)(kah)
268 CERTIFICATE OF SERVICE by Scott Konitzer (kah)
269 WRIT of Habeas Corpus issued as to Scott Konitzer, a/k/a Donna Dawn Konitzer (2 certified copies of Writ sent via fed ex to Warden, Columbia Correctional Institution) (mlm)
270 Minute Entry for proceedings held before Magistrate Judge Patricia J Gorence: Mediation Hearing held on 9/1/2010. The parties have settled the case and will submit appropriate documents to the court by September 15, 2010. (kaf) Modified on 9/8/2010 (kah). (Entered: 09/07/2010)
271 ORDER Releasing Pro Bono Representation of Attorney Kathy L Nusslock of pro se plaintiff Konitzer in this matter signed by Magistrate Judge Patricia J Gorence on 9/3/10. (cc: all counsel)(PATRICIA J. GORENCE)(kaf) (Entered: 09/07/2010)
272 ORDERED that this case be and hereby is returned to Chief United States District Judge Charles N. Clevert. The parties will submit appropriate documents to the court on or before September 15, 2010 signed by Magistrate Judge Patricia J Gorence on 9/3/10. (cc: all counsel)(PATRICIA J. GORENCE)(kaf) (Entered: 09/07/2010)
273 LETTER from Magistrate Judge Patricia Gorence to Attorney Nusslock re: mediation. (mlm) Modified on 9/13/2010 (mlm). (Entered: 09/13/2010)
274 LETTER from Magistrate Judge Patricia Gorence to Attorney Gatewood re: mediation. (mlm) (Entered: 09/13/2010)
277 REQUEST by Scott Konitzer for stay of final judgment. (kah) (Entered: 11/08/2010)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 20 of 23

09/30/2010 11/02/2010
11/02/2010 11/02/2010 11/02/2010 11/05/2010 11/05/2010 11/12/2010 11/22/2010
11/22/2010 11/22/2010
11/23/2010 11/24/2010
11/24/2010
11/30/2010 12/03/2010 12/03/2010
12/03/2010
12/09/2010
12/09/2010
12/09/2010

275 ORDER Closing Case for Administrative Purposes. (cc: all counsel; via U.S. Mail to Plaintiff)((cef), C. N. Clevert, Jr.)
278 MOTION to Reopen Case and Mediation or MOTION to Consider this a Notice of Appeal by Scott Konitzer. (Attachments: # 1 Letter (copy of docket mailed per request), # 2 Letter, # 3 Letter)(kah) (Entered: 11/08/2010)
279 DECLARATION of Donna Dawn Konitzer. (kah) (Entered: 11/08/2010)
280 MOTION for Leave to Proceed in forma pauperis by Scott Konitzer. (kah) (Entered: 11/08/2010)
281 CERTIFICATE OF SERVICE by Scott Konitzer (kah) (Entered: 11/08/2010)
276 LETTER from Jody J. Schmelzer. (Attachments: # 1 Mediation Settlement Agreement)(Schmelzer, Jody)
282 Prisoner Trust Fund Account Statement by Scott Konitzer. (kah) (Entered: 11/08/2010)
283 MOTION to Stay by Scott Konitzer. (kah) (Entered: 11/15/2010)
284 MOTION for Extension of Time TO RESPOND TO KONITZER'S MOTION TO REOPEN CASE by Byran Bartow(sued as Byron Bartow), David Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker. (Schmelzer, Jody)
285 AFFIDAVIT of JODY J. SCHMELZER. (Schmelzer, Jody)
286 CERTIFICATE OF SERVICE by Byran Bartow(sued as Byron Bartow), David Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker (Schmelzer, Jody)
287 LETTER from pltf re: status of motion to reopen and re: trial date. (kah)
TEXT ONLY ORDER: Granting Defendant's Motion for Extension of Time to Respond to Konitzer's Motion to Reopen Case 284 . Defendant's response is due 12/10/10. (cc: all counsel; via U.S. Mail to Plaintiff)((cef), C. N. Clevert, Jr.)
NOTICE: HEARING on Plaintiff's Motions 278 , 280 and 283 is set for 12/17/10 at 10:00 AM in Courtroom 222. Plaintiff to appear by video conferencing if possible. Copy of this Notice mailed to Plaintiff. ((cef), C. N. Clevert, Jr.)
288 LETTER from Plaintiff stating he does not object to 284 Defendant's Motion for Extenison of Time, but he would oppose additional requests. (blr)
289 MOTION to Seal by plaintiff Scott Konitzer (vkb)
290 SEALED MOTION for Writ of Habeas Corpus ad Testificandum by plaintiff Scott Konitzer (vkb) (Additional attachment(s) added on 12/3/2010: # 1 Text of Proposed Order) (vkb). Modified on 12/29/2010, unsealed pursuant to 310 (vkb)
291 SEALED Combined Rule 60(b) and 11(b) MOTION for Relief by plaintiff Scott Konitzer (vkb) (Additional attachment(s) added on 12/3/2010: # 1 SEALED Exhibits pages 1−100, # 2 SEALED Exhibits pages 101−149) (vkb). Modified on 12/29/2010; main document unsealed pursuant to 310 (vkb)
292 SEALED MEMORANDUM ADDENDUM filed by plaintiff Scott Konitzer re 291 MOTION for Relief and Brief (vkb) (vkb). Modified on 12/29/2010; unsealed pursuant to 310 (vkb)
293 LETTER from plaintiff requesting that any extensions of time made by defendants to respond to the Rule 60(b) motion be denied; requesting that the court issue a writ; and requesting that the defendants be ordered not to interfere or prevent the plaintiff from bringing evidence (vkb)
294 LETTER from plaintiff re: defendants' counsel holding back pleadings; also requesting that the court hear the Rule 60(b) motion during the 12/17/10 hearing (vkb)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 21 of 23

12/09/2010 12/10/2010 12/10/2010
12/13/2010
12/13/2010 12/14/2010 12/15/2010 12/15/2010 12/16/2010 12/16/2010 12/16/2010 12/17/2010
12/23/2010 12/23/2010 12/23/2010 12/23/2010 12/27/2010

295 LETTER from plaintiff informing the court that the defendants may be planning to transfer plaintiff to another institution and asking that the court order the defendants not to prevent plaintiff from bringing evidence before the court (vkb)
296 LETTER from plaintiff requesting copies; copies sent with bill for $7.30 (Attachments: # 1 Letter from clerk in response)(vkb)
297 BRIEF in Opposition filed by Byran Bartow(sued as Byron Bartow), David Burnett, Mario Canziani, Matthew J Frank, Tom Michlowski, Tom Speech, Sharon Zunker re 278 MOTION to Reopen Case MOTION for Consideration. (Attachments: # 1 Affidavit Schmelzer, # 2 Certificate of Service)(Schmelzer, Jody)
NOTICE of Electronic Filing Error re 297 Brief in Opposition to Motion, filed by Tom Michlowski, Mario Canziani, David Burnett, Tom Speech, Sharon Zunker, Matthew J Frank, Byran Bartow ; Certain attachments to this document should have been filed as separate entries (the Affidavit). This document does not need to be re−filed; Please refer to the user manuals on electronic case filing found at www.wied.uscourts.gov (kah)
298 LETTER from the Court to Atty Nusslock. (cc: All Counsel; via U.S. Mail to Atty Nusslock and Plaintiff) ((cef), C. N. Clevert, Jr.)
299 ORDER Denying Plaintiff's Motion for Writ of Habeas Corpus Ad Testificandum 290 . (cc: all counsel; via U.S. Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)
300 MOTION to File Surreply by Scott Konitzer. (Attachments: # 1 Proposed Surreply, # 2 Certificate of Service)(blr) (Entered: 12/16/2010)
301 LETTER from plaintiff requesting information on how to obtain a record of the mediation hearing (copy of minutes sent) (Attachments: # 1 Letter from clerk in response)(vkb) (Entered: 12/16/2010)
302 LETTER from JODY J. SCHMELZER re Affidavits for HEARING SUPPLEMENT TO DKT 297. (Schmelzer, Jody)
303 AFFIDAVIT of GREGORY D. GRAMS. (Schmelzer, Jody)
304 AFFIDAVIT of DAVID E. BURNETT, M.D.. (Schmelzer, Jody)
309 Minute Entry for hearing held 12/17/2010 before Chief Judge Charles N Clevert, Jr: Substantive Provisions of Settlement Agreement as Exhibit A received by the Court. Case has settled and will be closed for all purposes. Court to retain jurisdiction for one year from the date of entry of the judgment. Plntf's motions to reopen case 278 and to seal 289 are DENIED; Motions 283 291 300 are DENIED AS MOOT. (Tape #10:13:50−11:33:16) (Attachments: # 1 Exhibit A) (djd) (cc: all counsel, via U.S. Mail to Plaintiff) Modified on 12/28/2010 (vkb) (Entered: 12/27/2010)
305 LETTER from plaintiff requesting that a hearing be held in February, 2011; also requesting that the court seek limited appointment of counsel; also stating issues plaintiff is having with defendants and seeking relief (vkb) (Entered: 12/27/2010)
306 SEALED LETTER from plaintiff to the Court(vkb) (Entered: 12/27/2010)
307 LETTER from plaintiff requesting copy of the docket; docket sent (vkb) (Entered: 12/27/2010)
308 LETTER from plaintiff requesting information; response sent (Attachments: # 1 Letter from clerk in response)(vkb) (Entered: 12/27/2010)
310 ORDER Denying Plaintiff's Motion to Reopen Case 278 , Denying Plaintiff's Motion for Leave to Proceed IFP on Appeal 280 , Denying as Moot Plaintiff's Motion to Stay 283 , Denying Plaintiff's Motion to Seal 289 , Denying as Moot Plaintiff's Motion for Relief 291 , Denying as Moot Plaintiff's Motion to File Surreply 300 , and Dismissing Case. (cc: all counsel; via U.S. Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 22 of 23

12/27/2010
12/30/2010
02/09/2011 02/24/2011
02/24/2011 02/24/2011
02/24/2011 02/24/2011 02/24/2011 02/24/2011 02/24/2011
03/01/2011 03/01/2011 03/02/2011 03/02/2011 03/03/2011 03/03/2011 03/04/2011
03/04/2011 03/08/2011
03/18/2011

311 JUDGMENT signed by Deputy Clerk approved by Chief Judge Charles N Clevert, Jr on 12/27/10. See Judgment for details. (cc: all counsel; via U.S. Mail to Plaintiff)((cef), C. N. Clevert, Jr.)
312 ORDER Denying Plaintiff's Motion for a Settlement Enforcement Hearing and the Appointment of Counsel 305 . (cc: all counsel; via U.S. Mail to Plaintiff)((cef), C. N. Clevert, Jr.)
313 LETTER from Plaintiff requesting transcripts. (dmm)
314 Letter REQUEST from Resident Konitzer requesting the following: (1) transcripts of all hearings before the court, including telephone hearings, held between 3/1/10 and 1/30/11 and that pltf be provided with copies of those transcripts; (2) that all documents, letters, pleadings and any other paper filed and docketed be included in the record on appeal; (3) copies of documents 239 through 308. (kmm)
315 MOTION for Extension of Time to file Notice of Appeal by Scott Konitzer. (lmt)
316 NOTICE OF APPEAL with attached Certificate of Service by Scott Konitzer from USDC re: 311 Judgment and 310 Order on Motion to Reopen Case, Order on Motion for Consideration, Order on Motion for Leave to Proceed in forma pauperis, Order on Motion to Stay, Order on Motion to Seal, Order on Motion for Relief, and Order on Motion to File. (cc: all counsel)Newlin Notice to be sent by 4/25/2011 (lmt)
317 DECLARATION of Scott Konitzer, aka Donna Dawn Konitzer. (lmt)
318 7th Circuit Information Sheet re: 316 Notice of Appeal Prisoner, (lmt)
319 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 316 Notice of Appeal Prisoner (lmt)
320 Pro Se Cover Letter re: 316 Notice of Appeal Prisoner (Attachments: # 1 Docket Sheet)(lmt)
321 USCA Case Number 11−1450 re: 316 Notice of Appeal Prisoner, filed by Scott Konitzer. (Attachments: # 1 Circuit Rule 3 (b) Fee Notice)(lmt) (Entered: 02/25/2011)
322 DESIGNATION of Record on Appeal and request for copies of documents re 316 Notice of Appeal Prisoner (lmt)
323 LETTER from plaintiff requesting transcripts. (dmm)
324 Prisoner Trust Fund Account Statement by Scott Konitzer. (dlm)
325 LETTER to plaintiff regarding cost of photocopies. (kah)
326 MOTION for Leave to Appeal in forma pauperis with attached Certificate of Service by Scott Konitzer. (lmt)
327 Financial Release Statement by Scott Konitzer. (lmt)
328 MOTION to Withdraw Notice of Appeal and Request to Proceed in Forma Puaperis with attached Certificate of Service by Scott Konitzer. Document emailed to COA(lmt)
329 REQUEST to withdraw transcript request. (lmt)
330 ORDER Withdrawing Plaintiff's Request for Transcripts 313 , Withdrawing Plaintiff's Motion for Extension of Time 315 , Withdrawing Plaintiff's Motion for Leave to Proceed IFP on Appeal 326 , Granting Plaintiff's Motion to Withdraw Request to Proceed IFP on Appeal 328 , and Granting Plaintiff's Request to Withdraw Transcript Request 329 . (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.) (Entered: 03/11/2011)
331 MOTION to Modify the court's order of 03/08/11 by Scott Konitzer to grant IFP on appeal, to grant the motion for transcripts and to grant the motion for extension of time. (Attachments: # 1 Cover Letter)(kmm)

Case: 2:03-cv-00717-CNC As of: 07/14/2011 09:04 PM CDT 23 of 23

03/23/2011 03/25/2011 04/01/2011
04/12/2011 04/12/2011 04/19/2011 04/22/2011 06/02/2011
06/13/2011 06/13/2011

332 ORDER Denying Plaintiff's Motion to Modify 331 . (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)
333 LETTER from plaintiff re: transcript request and appeal (cc: Heidi Trapp). (kah)
334 ORDER of USCA re 316 Notice of Appeal Prisoner, filed by Scott Konitzer. The following is before the court: MOTION FOR ORDER INFORMING PLAINTIFF−APPELLANT THAT SHE MAY PROCEED ON APPEAL IN FORMA PAUPERIS, MOTION FOR ORDER FOR AN EXTENSION OF TIME TO FILE APPEAL BRIEF, MOTION FOR ORDER TO DISTRICT CLERK TO PROVIDE REQUESTED PORTIONS OF THE DOCKET RECORD SO THAT THEY CAN BE INCLUDED BY PLAINTIFF−APPELLANT ON APPEAL, MOTION FOR ORDER TO DISTRICT COURTREPORTER REQUIRING THAT REPORTER PROVIDE A NECESSARY COPY OF COURT TRANSCRIPTS THAT ARE NECESSARY TO THE PLAINTIFF APPELLANT TO PROSECUTE THIS APPEAL. MOTION FOR ORDER ALLOWING THE PLAINTIFF−APPELLANT TO PROCEED ON APPEAL WITHOUT THE FILING OF A APPEAL BRIEF APPENDIX UNDER RULE #30(f) ALLOWING PLAINTIFF TO CITEFROM THE ORIGINAL RECORD, filed on March 30, 2011, by the pro se appellant.Pursuant to this courts Fee Notice and Order date February 24, 2011,IT IS ORDERED that the motion is DENIED without court action. The appellant isreminded of the obligation to either file a motion to proceed on appeal in forma pauperis or pay the required appellate fees in the district court. Failure to comply with this order will result in the dismissal of this appeal. (lmt)
335 ORDER of USCA 11−1450 IT IS ORDERED that the clerk of this court transfer the motion to the clerk of the district court for a ruling on the motion, along with a copy of this order. The pro se appellant is reminded that if the district court denies the in forma pauperis motion, he/she must refile the motion in this court pursuant to Fed. R. App. P. 24. (Attachments: # 1 IFP)(dlm) Modified on 4/15/2011 (dlm). (Entered: 04/13/2011)
336 MOTION for Leave to Appeal in forma pauperis by Scott Konitzer. (dlm) (Entered: 04/15/2011)
337 ORDER Denying Plaintiff's Petition for Leave to Proceed IFP on Appeal 336 because this court certifies that such appeal has been taken in bad faith. Further ordering that plaintiff forward to the Clerk the sum of $455.00 as the full filing fee by 5/2/11. (cc: all counsel; via US Mail to Plaintiff, Warden and PLRA Attorney) ((cef), C. N. Clevert, Jr.)
338 Certified Record on Appeal Transmitted to US Court of Appeals consisting of 4 volumes of pleadings on CD, 11 loose pleadings and 1 sealed document (#306) on CD re 316 Notice of Appeal Prisoner, (cc: all counsel) (Attachments: # 1 Docket Sheet)(lmt)
339 USCA Mandate (certified copy) w/attached order. IT IS ORDERED that this appeal is DISMISSED for failure to pay the required docketing fee pursuant to Circuit Rule 3(b). IT IS FURTHER ORDERED that the appellant pay the appellate fee of $455.00 to the clerk of the district court. The clerk of the district court shall collect the appellate fees from the prisoner's trust fund account using the mechanism of Section 1915(b). Newlin v. Helman, 123F.3d 429, 433 (7th Cir. 1997) as to 316 Notice of Appeal Prisoner, filed by Scott Konitzer USCA Number 11−1450 (dmm)
340 ORDER Collecting Appellate Filing Fee signed by Chief Judge Charles N Clevert, Jr on 6/13/11. (cc: all counsel; via US Mail to Plaintiff, Warden &PLRA Attorney)((cef), C. N. Clevert, Jr.)
Appeal Record Returned consisting of 11 loose pleadings re 316 Notice of Appeal Prisoner. (lmt) (Entered: 06/14/2011)