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.U OtJ dt7h Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 /1'P7age 1 of f1'30 y

(k

i Ordtr /lid. '3

UNITED STATES DISTRICT COURT DIS1RICT OF MASSACHUS

MICHELLE LYNNE KOSILEK,

)

Plaintiff

)

v.

)

)

MASSACHUSETTS DEPARTMENT OF )

CORRECTIONS; MICHAEL T. MALONEY; )

CORRECTIONAL MEDICAL SERVICES, )

INC.; U/MASS MEDICAL SCHOOL; DR. )

ARTHUR BREWER; DR. HARRISON

)

O'CONNOR; DR. KENNETH APPLEBAUM;)

KAREN DEWEES,

)

Defendants)

)

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

COMPLAINT AND DEMAND FOR JURY TRIAL Introduction
1. This is an action for damages and injunctive relief against the Massachusetts Department of Correction, Michael T. Maloney, Correctional Medical Services, Inc. (CMS), U/Mass. Medical School (UMMS), Dr. Arthur Brewer, Dr. Harrison O'Connor, Dr. Kenneth Applebaum, and Karen DeWees! Mr. Maloney is Commissioner of Massachusetts Department of Correction; a" other personally named Defendants are employees of the CMS/UMMS contract with Defendant Department of Corrections, a subcontract to provide mental health services to inmates. During Plaintiffs seven years in their custodyI
Defendant s have engaged in a pattern of illegal denial of medical and mental
health services. Defendant Maloney has been dismissed for personal liability on
l~n a related civil action based on perjury he submitted to the Court (Exhibit

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 2 of 13

which he denied responsibility for denial of treatment. Sworn testimony of at

least three defendants later revealed treatment exclusion was added to
ti-i.B
CMS/UMMS contract by order of Mr. Maloney. Conversely, while Defendant

Maloney has decided to arbitrarily refuse to treat Plaintiff's medical condition, he
Ci-.ic
has signed another contract with Justice Resource Institute to provide very

specific treatment such as aversion therapy and electrical monitoring of genital

responses, a contract that employs a number of specialists in the field of sex-

offender treatment at a yearly rate of over three-million dollars, while admitting
*" that 75% of these patients are non-compliant. Additionally, this speCial

psychiatric treatment for sex offenders only is mandatory with built-in sanctions \
for non-compliance. "The primary goal ... is to facilitate the eventual

involvement of offenders in community living. , ," Plaintiff deserves the same

dedication by Defendant Maloney\and DOC\to treatment of her condition (Exhibit

lC: i

)

In addition to being denied treatment for Gender Identity Disorder, Plaintiff

is also being denied vegetarian diet for an animal protein allergy and was not

informed of being infected with a fatal illness she has and Defendants have know,",
J'i.1.J )
about for seven years--Hepatitis . Defendants have also attempted to make
h !t-lS
Plaintiff pay for prescribed medication for chronic cervical spine arthritis and for

the price of drawing, analyzing and storipg blood for a state-mandated DNA

database.

These actions violated Plaintiffs First Amendment right to freedom of

expression; Fourth Amendment right to freedom from seizure of her assets; Fifth
~ £::'&i.c ()) ~4JQ~IJ..~ 1 ~so aJ..~\t~ ~Q\ <itt n(it 'Mt~,'\-o..l\\ ,\\.

3 Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 3 of 13
Amendment right to Due Process; Eighth Amendment right to Freedom from cruel and unusual punishment, and Fourteenth Amendment guarantee of Equal Protection under the law. These actions also constitute medical malpractice.
JURISDICTION 2. The Plaintiff's claims for relief are filed under 42 USC 1983 to redress injuries suffered by Plaintiff for deprivation under color of state law of rights secured by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The Plaintiff's claims also arise directly under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. Accordingly the Court has jurisdiction over the claims pursuant to 28 USC 1331 and 1343 (3). 3. Venue in the District of Massachusetts is proper, because each of the Defendants resides and/or does business in the District of Massachusetts and each of the claims for relief arose in this District.
PARTIES 4. The Plaintiff is presently incarcerated at MO-Norfolk, a prison operated by the Massachusetts Department of Corrections. 5. Defendant Massachusetts Department of Corrections is charged with the
administration of medical care to prisoners in its custody, o..swcll u.s ~('e....rr~tl\ clttA,:\\ttS.
6. Defendant Maloney is the Commissioner of the Massachusetts Department of Corrections. His duties and powers include the duty to institute and supervise" policies for the provision of medical services to prisoners in the care and custody
of the Massachusetts Department of Corrections,a.~ c..ov V\.1-",\ '~tl\~.s I \02> <l)d--C.WI. ~

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 4 of 13
7. Correctional Medical Services is a corporation contracted to provide medical services to prisoners held by the Massachusetts Department of Corrections. 8. U/Mass Medical School is a state-funded educational entity that has entered into a sub-contractual agreement to provide the mental health services component of the CMS/Department of Corrections contract for medical services. 9. Dr. Arthur Brewer is the Medical Director of CMS. 10. Dr. Harrison O'Connor is an Orthopedic Surgeon who is employed by UMMS. Dr O'Connor was employed as a psychiatrist by CMS, by the previous contract vendor, EMSA, and by the Department of Corrections despite th e fact that he is not now, nor has he ever been certified as a psychiatrist, and has never served a psychiatric internship (Exhibit 2). 11. Dr. Kenneth Applebaum is the Director of the UMMS component of the CMS/UMMS contract. 12. Karen DeWees, UCSW, is the Director of Mental Health Services at MCINorfolk. She is employed by UMMS.
FAcruAL ALLEGATIONS a. Plaintiff's Transsexualism 13. Plaintiff suffers from a medical condition known as transsexualism, a severe fonn of Gender Identity Disorder. Although Plaintiff is anatomically male, she identifies psychologically as female, and always has. Gender Identity Disorder is a diagnostic medical term used to describe a number of disturbances

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 5 of 13

related to having a gender identity that is incongruous to one's anatomy.

Transsexualism is used to describe the most extreme manifestation of this

disorder, named so because the suffering caused by an incongruous anatomy

compels the patient to seek hormonal and surgical intervention to ease the

, \-

"

"

suffering. Plaintiff has described this otherness as a feeling of biological

~
claustrophobia. Medical treatment of this condition is directed at correcting the

incongruity between the afflicted person's assigned sex (anatomical) and the

person's psychological identity (opposite sex). The universal prescribed

treatment involves psychotherapy, hormone therapy, and surgical correction of

the offending genitalia. The only treatment modality that is deemed appropriate

and curative for this serious condition is the regimen described above, as

mandated by the "Standards of Care for Gender Identity Disorder" (Exhibit 3).

14. Plaintiff has suffered from Gender Identity Disorder. As a child she was

beaten and sexually abused by her caretakers as a result of expressrt\~her

female identity. As a result, Plaintiff began an on again/off again hiding process

in which she would pretend to be male to avoid further abuse. Two subsequent

attempts to live as a female after achieving breast development through the use

of estrogen resulted in other beatings and a gang rape.

15. Plaintiff first sought psychiatric treatment for Gender Identity Disorder in

1970 with Dr. Terry B. Brelje, PhD while incarcerated for possession of

marijuana.

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 6 of 13

16. After being released (n 1972, Plaintiff resumed living as a female and

taking estrogen. A severe beating by two men outside of a bar resulted in

Plaintiff fleeing into a false male identity.

b. Plaintiff's Incarceration

17. In 1990, Plaintiff was placed in pre-trial detention in the Bristol County

Jail. As a pre-trial detainee Plaintiff had the right to treatment for Gender

Identity Disorder, and even offered to self-pay. Sheriff David Nelson refused to

*' allow Plaintiff to complete her transition and she was denied this right until she
left his wstody.st.i\t- O.o.C(o",,,,;&;Ib\\U r'''fb~$ J,[~ f'OI' If, dtV'.10.1 w:

18. On January 25, 1993 Plaintiff was placed in the custody of the

Massachusetts Department of Corrections. As a prisoner, Plaintiff retains the

right to be free from Cruel and Unusual Punishment under the Eighth

Amendment of the United States Constitution. Deliberate indifference to the

serious medical needs of a prisoner constitutes cruel and unusual punishment.

19. Plaintiff repeatedly informed the Department of Corrections of her

transsexualism over the course of the next seven (7) years, including Defendant

Maloney. Despite documentation by medical staff during intake interview at

MO-cedar Junction that Plaintiff was a transsexual with breasts who was

requesting treatment, Defendants have refused to provide and/or pay for any

Gender Identity Disorder-related treatment. The only exception has been a

Federal court-ordered evaluation by Dr. Marshall Forstein, an expert the

'* Department of Corrections identified and hired. Defendants have refused to

GU,iM~~.tu-\z.c'uo tU.UGJ(o..~t.~~(,'\Ol~(fe.~A<.\v\-ai'.iic\i\)\"6\1t,6w" .ofaf 4!u\\-~\'l.~ \eJw~te(V'-b~!\59e.\L\tc{.\a\a.a--+~

~1... ((Mt7~)

AALtfaIA

CQ,("h'or'lll'~ d~V\W b'"{ ~Ct: \V\ ~O~ <:"05~5

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 7 of 13
comply with Dr. Forstein's recommendations (Exhibit 4) because of Mr. Maloney's personal belief that taxpayer money should not be spent for this medical
t:.{, condition. 1..6 ~()S'sf{
BRST CLAIM FOR REUEF Denial of Free Speech-All Defendants 20. One of the diagnostic criteria for identifying a patient with Gender Identity Disorder is a compelling need for the patient to express her true identity through the use of cross-gender expression, as exemplified by the use of makeup, jewelry, clothes, hairstyle, and body language. State Court in Massachusetts has recently ruled that this behavior ~s a protected form of expression under the First Amendment to the United States Constitution (Pat Doe vs. Brockton School Board). The Defendants have conspired to punish Plaintiff with Disciplinary Action including loss of job, canteen privileges, and Administrative Segregation for expressing herself, despite the fact that no rules exist under which Plaintiff could be punished. Defendant Maloney has admitted under oath that a policy allowing inmates to wear makeup and earrings does exist, and that it does not exclude anatomical males. A certified letter to MCI-Norfolk Superintendent lim Hall requesting proof of any rule prohibiting me from displaying my symptoms went unanswered, yet CMS/UMMS staff drew up "Guidelines" agreeing that Department of Corrections can punish me for my symptoms, while refusing to treat my illness! (Exhibits 5 and 6). Defendants' actions violate First Amendment, caUSing Plaintiff continuous suffering.

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 8 of 13
SECOND ClAIM FOR REliEF Fourth Amendment Violation-Illegal Seizure 21. Defendants Maloney, Department of Corrections and CMS have begun to seize inmate funds ($110.00 each) in accordance with a DNA Database, the creation of which is mandated by MGL Ch. 22 E Section 4 paragraph b. This is an illegal seizure of funds in that Plaintiff was not sentenced to any fines or fees when she was convicted four years before MGL Ch. 22 E Section 4 paragraph b was enacted. This also violates Eighth Amendment prohibition against Cruel and Unusual Punishment. Plaintiff requests an Injunction preventing Defendants from enforcing MGH Ch. 22 E Section 4 paragraph b (only this paragraph) until such time as the constitutionality of this paragraph can be determined.
THIRD ClAIM FOR REliEF Fifth Amendment Vjolation-Due Process 22. Defendants Maloney, Department of Corrections, and CMS are now depriving inmates of property without Due Process by means of an illegal
$110.00 DNA database fee. NO inmates have been sentenced to pay this fee.
FOURTH CLAIM FOR REUEF Eighth Amendment Violation-All Defendants 23. Plaintiff suffers from a serious medical condition known as transsexualism. 24. Plaintiff has repeatedly made this known to all Defendants over a sevenyear period.

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 9 of 13
25. For the first five years (1993-1998) Defendants denied treatment, repeatedly, denying psychotherapy and honnones (Exhibit 7) on the premise (personal belief of Dr. O'Connor) that prisoners "come to prison to be held in custody, not to be treated for one ailment of another" and again denying estrogen therapy on the premise that the CMS contract excluded estrogen therapy when the exclusion wasn't added until three and liz years later! (Exhibit 8). 26. In 1998, Defendants entered into a contractual agreement to exclude
~'iqB treatment for sex change, either surgery or related treatment. Since transsexualism is a serious medical need, refusing to treat this condition is Deliberate Indifference and thus it is Cruel and Unusual Punishment, a violation of the Eighth Amendment to the United States Constitution. 27. As a result of these years of denial of medical treatment, Plaintiff has continuously suffered depression and anxiety, with a resultant constantly high
level of stress-honnones which has contributed to a shortening of Plaintiff's life-
expectancy~Plaintiff requests an assessment of her medical chart by a qualified
endocrinologist to confinn this allegation.
28. Despite claiming that no one who works for Department of Correction or
i:'1-q ~4~e:J- ~drl~rQr~ \
CMS/UMMS is qualified to treat Gender Identity Disorder, Defendants have promulgated "Guidelines" for treatment (Exhibit 6). This admission was included as part of a Discovery Request in CA 9212820MLW and it included an admission that CMS has been mostly responsible for over three hundred lawsuits based on

\() Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 10 of 13
Eighth Amendment violations (Exhibit 9). Response number one on the same document failed to provide a specific treatment protocol' , but referenced a Regulation 103 DOC 630, which requires CMS and all other treatment providers to provide healthcare services comparable in quality to that available in the community (Exhibit 10). Defendant CMS' refusal to pay for an allergy skin test and refusal to provide prescribed pain medication, as well as their failure to inform Plaintiff that she has a potentially fatal illness (Hepatitis C) (Exhibit 11) are all violations of Eighth Amendment and Department of Correction Regulation 103 DOC 630. CMS inability to obey the law and thereby limit litigation is best exemplified by their medical release form that includes a litigation waiver (Exhibit 12). All of Defendants' actions violate Eighth Amendment. As a result of Defendants' inaction, Plaintiff has continuously suffered for seven (7) years.
FIFTH ClAIM FOR REUEF Fourteenth Amendment Violation-Denial of Equal Protection-All Defendants 29. Plaintiff suffers from a medical condition, Gender Identity Disorder; if untreated this condition can lead to self-mutilation and/or suicide. Despite being aware of these risks and admitting same under oath, Defendants have elected to deny treatment to Plaintiff for seven (7) years. Two years ago, Defendants codified this denial of treatment by becoming signatories to a multimillion-dollar contract. Of the thousands of medical and/or psychiatric conditions that affect human beings, Defendants voluntarily agreed to exclude treatment for only one condition-Gender Identity Disorder. Treatment for this disorder is quite

\\ Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 11 of 13

common nowadays (Plaintiffs surgeon of choice, Dr. Stanley Biber, has

perfonned thousands of sex¥reassignments). Ironically, it is one of the few

psychiatric disorders that has a curative treatment. Intentionally refusing to

treat Gender Identity Disorder while punishing the Plaintiff for exhibiting the very

symptoms that define her illness is a blatant violation of the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution.

Additionally, Defendants' Guidelines (Exhibit 6) though frightfully inadequate, do

recognize that transsexual prisoners who enter the system with evidence of

honnone therapy, e.g. breast development, should be treated differently.

Plaintiff had breasts when she entered which have now diminished but

Defendants are still refusing estrogen to Plaintiff. Because of the increasing

masculinization of Plaintiffs body, she continues to suffer depression,

exacerbated by recent loss of scalp hair. Defendants' actions violate Plaintiff's

right to Equal Protection under the law guaranteed by the Fourteenth

rtJ \ e" B Amendment to the United States Constitution.8.~ S~O(}\d.

i~e. Co

Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 12 of 13
PRAYERS FOR RELlEF 1. Plaintiff prays that this Honorable Court award Plaintiff damages, in an amount to be determined by the jury at trial, under each Claim for Relief as set forth above. 2. Plaintiff prays that the Court award interest on said damages. 3. Plaintiff prays that this Court award injunctive relief against Defendants Department of Correction, Michael T. Maloney, and CMS/UMMS requiring them to provide appropriate treatment for Plaintiff's medical condition in accordance with standards of care; Plaintiff further prays that the Court enjoin the Defendants Department of Corrections, Michael T. Maloney, and CMS from enforcing Section 4 paragraph b of MGL Chapter 22 E. 4. Plaintiff prays that this Court will appoint Counsel as the Court did in a related matter, CA9212820MLW. Defendant Department of Correction and Michael T. Maloney have perjured themselves to the Federal Court in an attempt to evade their obligations under First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Defendants have a large legal staff and unlimited funds; Plaintiff is indigent, and seriously disadvantaged by lack of a law degree. 5. Plaintiff prays that this Court award such other relief as is just and proper.

\ ) Case 1:00-cv-12455-MLW Document 5 Filed 12/12/00 Page 13 of 13

DEMAND FOR JURY TRIAL

In accordance wrth Federal RC iv P 38(b), Plaintiff demands a trial by jury

on all issues so triable!
Dated this L'1 ±Y\ day of hlGI,jert,~('

, 2000.

Respectfully submitted,
II\~(~~~
Michelle Lynne Kosilek ? td'" 'iQ..

 
 Case 1:00-cv-12455-MLW Document 139 Filed 06/14/05 Page 1 of 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

MICHELLE KOSILEK,

)

Plaintiff

)

)

VS.

)

)

MASSACHUSETTS DEPARTMENT OF )

CORRECTION; MICHAEL T. MALONEY; )

CORRECTIONAL MEDICAL SERVICES, )

INC.; UIMASS MEDICAL SCHOOL;

)

DR. ARTHUR BREWER; DR. HARRISON )

O'CONNOR; and DR. KENNETH

)

APPLEBAUM [SIC],

)

Defendants

)

CIVIL ACTION NO. 00-12455-MLW

STIPULATION OF DISMISSAL

The parties to the above-entitled action, pursuant to the provisions of Fed.R.Civ.P. 41(a)(1)(ii), hereby stipulate that said action be dismissed, with prejudice and without costs, and waiving all rights of appeal, as to defendants Correctional Medical Services, Inc. and Arthur Brewer, M.D.

The Plaintiff,

The Defendants,

MICHELLE KOSILEK

CORRECTIONAL MEDICAL SERVICES, INC.

Mic elle KosiIek, Pro Se MCI-Norfolk

and ARTHUR BREWER, M.D.

By their

&//!

--

P.O. Box 43

Davi A. Hilton, BBO #548214

Norfolk, MA 02056

Victoria A. Crawshaw, BBO #640935

Morrison Mahoney LLP

The Plaintiff,

250 Summer Street

MICHELLE KOSILEK

Boston, MA 02210

By ~er attorney, . . aN('l~<\ ttl! ~!ulltf". . (~7) 439-7500
fnl.w,\,J';) ltl"'-..-- "1'i~~tL~ fl'; I,~'>tccl:fhe Defendants,

Frances S. Cohen, BBO #5 28 1

UMASS MEDICAL SCHOOL, DR. HARRISON

Dechert LLP

O'CONNOR and DR. KENNETH APPELBAUM

200 Clarendon Street, 27th Floor

By their attorney,

Boston, MA 02116

(617) 728-7100

Stephen M. 0' hea, BBO #559236

The Defendants,

Martin, Magnuson, McCarthy & Kenney

DEPARTMENT OF CORRECTION

101 Merrimac Street, 7th Floor

and MICHAEL T. MALONEY

Boston, MA 02114

(617) 227-3240

Richard C. McFarland, BBO #542278 Department of Correction - Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 (617) 727-3300, Ext. 132
Dated: 611/05

 
 Case 1:00-cv-12455-MLW Document 143 Filed 07/01/05 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETfS

MICHELLE LTh'NE KOSILEK,

)

Plaintiff

)

)

v.

)

)

MASSACHUSETTS DEPARTMENT OF )

CORRECTIONS; MICHAEL T.

)

MALONEY; CORRECTIONAL MEDICAL )

SERVICES, INC.; U/MASS MEDICAL

)

SCHOOL;

)

DR ARTHUR BREWER; DR HARRISON )

O'CONNOR; DR KENNETH

)

APPELBAU:Vl and KA..REN DEWEES

)

Defendants

CIVIL ACTION NO. 00-12455

STIPULATION OF DISMISSAL, WITH PREJUDICE, \\1THOUT COSTS AND WITH ALL RIGHTS OF APPEAL WAIVED ONLY WITH REGARD TO ALL CLAIMS ASSERTED AGAINST THE DEFENDANTS, U/MASS MEDICAL SCHOOL,
DR. HARRISON O'CONNOR AND DR. KENNETH APPELBAUM

Now come the parties to the above-captioned action and, pursuant to Federal Rule of Civil Procedure 41 (a)(l)(ii), hereby stipulate to the dismissal of all claims that have been or could have been asserted against the defendants, University of Massachusetts Medical School, Dr. Harrison O'Connor and Dr. Kenneth Appelbaum, with prejudice, without costs and with all rights of appeal waived,

d#c.,.< az &~
Stephen M. O'Shea, BBO #559236 Attorney for the Defendants UMass Medical School, Dr. Harrison O'Connor and Dr. Kenneth Appelbaum and Karen Dewees MARTIN, MAGNUSON, McCARTHY & KENNEY 101 Merrimac Street, 7th Floor Boston, Massachusetts 02114 (617) 227-3240

,~M j~~"~3-o0
Micilelle Lynne KSilek, Pro Se Plaintiff MCI-Norfolk, W-53865 - Box 43 Norfolk, Massachusetts 02056

Case 1:00-cv-12455-MLW Document 143 Filed 07/01/05 Page 2 of 3 2

ll~ (?h(;;tI4.,.!tf~)-'
Richard McFarland, Esquire BBO#542278 Attorney for the Defendants, Department of Corrections and Michael T. Maloney Department of Correction 70 Franklin Street Boston, Massachusetts 02110 T: (617) 727-3300 X132

.M£;(?4,{~«'t/,*~#q
Victoria Crawshaw, Esquire BBO # 640935 Attorney for the Defendants, Con'ectional Medical Services, Inc. and Dr. Arthur Brewer Morrison, Mahoney & Miller, LLP 250 Summer Street Boston, Massachusetts 02210-1181 (617)439-7500

I"') !vv\'w"! It lMA--
Frances Cohen, Esquire BBO # 542811 Attorney for Plaintiff (Claims for Injunctive Relief Only) Michelle Kosilek Dechert, LLP 200 Clarendon Street, 27th Floor Boston, Massachusetts 02116-5021 (617) 728-7100

Case 1:00-cv-12455-MLW Document 143 Filed 07/01/05 Page 3 of 3
CERTIFICATE OF SERVICE
T, Stephen M. O'Shea, attorney for the defendants, University of Massachusetts Medical School (HUMMS"), Dr. Harrison O'Connor, Dr. Kenneth Appelbaum and Karcn Dewees, hereby certify that on this 30th day of June 2005, I forwarded the Stipulation Of Dismissal, With Prejudice, Without Costs And With All Rights Of Appeal Waived Only With Regard To All Claims Asserted Against The Defendants, UlMass Medical School, Dr. Harrison O'Connor and Dr. Kenneth Appelbaum to the Court and served a copy thereof by first class mail. postage pre-paid to Michelle Lynne Kosilek, Box 43 Norfolk, Massachusetts 02056; Richard C. McFarland, Esq. Department of Corrections, Legal Division, 70 Franklin Street, Suite 600, Boston, Massachusetts 02110; Victoria Crawshaw, Esquire, Morrison, Mahoney & Miller. 250 Summer Street, Boston. Massachusetts 02210 and Frances Cohen, Esquire. Dechert, LLP. 200 Clarendon Street, 27th Floor, Boston, Massachusetts 02116.
/~"?2n ;-:/%u(
Stephen M. O'Shea, Esq. BBO#559236 Attorney for the Defendants. University of Massachusetts Medical School, Dr. Harrison O'Connor, Dr. Kenneth Appelbaum and Karen Dewees MARTIN, MAGNUSON, McCARTHY
& KENNEY 101 Merrimac Street, 7th Floor Boston, Massachusett, 021 14 (617) 227-3240

 
 Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 1 of 15

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

MICHELLE LYNNE KOSILEK,

)

)

Plaintiff,

)

v.

) C.A. No. 00-12455-MLW

)

HAROLD W. CLARKE and

) (LEAVE TO FILE GRANTED ON ) DEC. 21, 2009, ECF DOC. 505)1

DOES 1 through 100

)

)

Defendant.

)

_______________________________________)

SECOND AMENDED COMPLAINT Plaintiff Michelle Lynne Kosilek alleges as follows.

NATURE OF THIS ACTION

1.

This is a civil rights action under 42 U.S.C. § 1983 arising out of the

deliberately indifferent denial of adequate medical treatment to Plaintiff Michelle Lynne

Kosilek ("Kosilek") by Defendants. Kosilek is in the custody of the Massachusetts

Department of Correction ("DOC") under the control of defendant Harold W. Clarke

("Clarke").

2.

Plaintiff has been diagnosed with Gender Identity Disorder ("GID"), a

1 Plaintiff’s counsel regrets that this Second Amended Complaint is being filed several months after leave to file was granted. The Plaintiff submitted this Second Amended Complaint on December 4, 2009 as an exhibit to her motion for leave to file. See ECF Doc. 492. When leave to file was granted on December 21, 2009, Plaintiff’s counsel mistakenly believed that no further action was necessary. It should be noted that the amendments to the complaint are few and relate solely to issues addressed at length in this litigation. Therefore, the late submission of this Second Amended Complaint should not prejudice the Defendant or inconvenience the Court.

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 2 of 15

condition which in her case has created a serious need for medical treatment. As this
Court held in Kosilek v. Maloney, 221 F. Supp. 20 156, 158 (D. Mass. 2002):
Plaintiff Michelle Kosilek is serving a life sentence, with the possibility of parole, for murdering [her] wife. Kosilek is also suffering from a severe form of a rare, medically recognized major mental illness — gender identity disorder ("GID"). Kosilek is a transsexual. Since at least age three, Kosilek has believed that [s]he is actually a female who has been cruelly trapped in a male's body. [footnote omitted]. This belief has caused Kosilek to suffer constant mental anguish and, at times, abuse. While incarcerated, it has also caused Kosilek to attempt twice to kill [her]self, and to try to castrate [her]self as well.

3.

In Kosilek v. Maloney, this Court found that Kosilek has a serious medical

need for treatment and that she had not been adequately treated.

4. Since this Court's 2002 decision, the defendants have provided Kosilek with some limited treatment for her condition. Nonetheless, for reasons that have nothing to do with her medical treatment or any other legitimate purpose, the defendants have refused to provide the full course of treatment — including but not limited to Sexual Reassignment Surgery ("SRS") and electrolysis — specifically recommended by David Seil, M.D. in his February 23, 2003 report (the “Seil Report”), Kevin Kapila, M.D., and Randy Kaufman, Psy.D., in their February 24, 2005 report (the “Fenway Report”), and other experts retained by the DOC itself as being medically necessary. The recommended treatment is in accord with the generally accepted standards of medical treatment.

5. The denial of treatment, including but not limited to SRS and electrolysis, has been in willful disregard of the rights of Kosilek and the Eighth Amendment to the United States Constitution.

6. Ms. Kosilek seeks an order compelling the DOC to provide the full course of treatment as recommended by the Seil Report and as further specified in the Fenway
2

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 3 of 15
Report. PARTIES
7. Plaintiff Michelle Lynne Kosilek is a citizen of the United States and is currently housed at the Massachusetts Corrections Institute at Norfolk ("MCI-Norfolk"), a prison operated by the DOC.
8. Defendant Harold W. Clarke is an individual who is believed to be a resident of Massachusetts and who as of November 26, 2007, is Commissioner of the DOC.
9. Defendant Does 1-100 are unnamed agents or employees of the DOC who have participated in the decision to deny medical care to Kosilek.
JURISDICTION AND VENUE 10. This court has jurisdiction over the claims presented herein pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 11. Venue is appropriate in this judicial district pursuant to 28 U.S.C. § 1391 because this is the district in which Plaintiff's claims arose.
STATEMENT OF FACTS 11. Kosilek is incarcerated in the custody of the DOC under the supervision of the defendants at MCI Norfolk. 12. Kosilek previously sued former DOC Commissioner Michael T. Maloney seeking treatment for her GID. That lawsuit culminated in a decision which put Commissioner Maloney on notice that Kosilek has a serious medical need which is not
3

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 4 of 15
being properly treated. Therefore he has a need to respond reasonably to it. The Court expects that he will." Kosilek v.Maloney, at 162. Defendant Clarke is also on notice of the decision in Kosilek v. Maloney.
13. The Court stated that "[i]f hormone or sex reassignment surgery are
recommended, Maloney may properly consider whether security issues make it impossible to provide adequate medical care in prison for Kosilek's serious medical need." Id.
14. The Court further found that:
If Maloney, in good faith, reasonably decides that there is truly no way that he can discharge both his duty to protect safety and his duty to provide Kosilek with adequate medical care, and concludes that security concerns must trump the recommendations of qualified medical professionals, a court will have to decide whether the Eighth Amendment has been violated. ...If, however, concerns about cost or controversy prompt Maloney to deny Kosilek adequate care for his serious medical need, Kosilek will then likely be entitled to his injunction that he has unsuccessfully sought in this case. Id. at 162. 15. Kosilek has a serious medical need based on her diagnosis of GID. GID is
defined as a major mental illness by the Diagnostic and Statistical Manual, Fourth Edition Text Revision ("DSM-IV-TR"). A transsexual, as the Supreme Court has described it, suffers from:
"[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex," and who typically seeks medical treatment, including hormone therapy and surgery, to bring about a permanent sex change." Farmer v. Brennan, 511 U.S. 825, 829 (1970), quoted in Kosilek v. Maloney at 163.
16. Kosilek has had GID since her earliest memories. Substantial long-term history supports Kosilek's diagnosis with DOC.
4

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 5 of 15
17. The agents and employees of the DOC, including the defendants and medical professionals under contract to the DOC, have acknowledged her diagnosis. Nonetheless, the defendants have persistently denied Kosilek treatment.
18. Kosilek persistently feels like a woman trapped in a man's body. The failure to provide medical treatment to her will lead to serious bodily harm, untreated mental illness, depression, self-mutilation and suicide.
19. The appropriate, generally accepted treatment for Kosilek includes treatment pursuant to "Standards of Care" published by the Harry Benjamin International Gender Dysphoria Association, Inc. ("Harry Benjamin"). The Standards of Care establish a "triadic treatment sequence" for treatment. This triadic sequence is comprised of: (1) hormone therapy; (2) a real-life experience of living as a member of the opposite sex; and (3) sex reassignment surgery. Id. at 3.
20. The Standards of Care state that cross-sex hormones are "often medically
necessary" "for properly selected adults with gender identity disorders." Id. at 13. "They
improve the quality of life and limit the psychiatric comorbidity, which often accompanies lack of treatment." Id. The administration of hormones to a transsexual typically diminishes co-existing serious psychological problems such as depression and suicidality. As the Standards of Care explain:
Hormone therapy can provide significant comfort to gender patients who do not wish to cross live or undergo surgery, or who are unable to do so. In some patients, hormone therapy alone may provide sufficient symptomatic relief to obviate the need for cross living or surgery. Id. at 14 (emphasis added). 21. Pursuant to the Standards of Care, after at least one year of a real life
5

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 6 of 15
experience, including hormones, SRS is medically indicated in some individuals. Id. at 20. The Standards of Care state that:
Sex Reassignment is Effective and Medically Indicated in Severe GID. In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not "experimental," "investigational," "elective," "cosmetic," or optional in any meaningful sense. It constitutes very effective and appropriate treatment for transsexualism or profound GID. Id. at 18. 22. Mental health services are provided to the DOC under contract with the
Psychiatry Department of the University of Massachusetts Medical School.
23. On February 23, 2003, after evaluating Ms. Kosilek upon the referral by the Department of Corrections medical and/or mental health providers, Dr. Seil issued his report that specifically provided seven recommendations regarding Ms. Kosilek’s GID treatment, the first five of which were substantive changes to her treatment.
24. The Seil Report’s first recommendation was “Estrogen therapy,” which was described as the “first line of internal relief.” The second recommendation was “Electrolysis Treatment.” Dr. Seil recommended that: “Facial hair is a major signifier of male gender. . . . In combination with estrogen, electrolysis is very effective.” The third recommendation was “Access to gender appropriate personal items.” The fourth recommendation was “Facial and other feminizing procedures.” The fifth recommendation was “Sexual reassignment surgery.” Dr. Seil recommended that: “A future assessment needs to be made by an experienced gender specialist with Ms. Kosilek after treatment with hormones for a year as to whether this step definitely need be taken.”
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Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 7 of 15
25. Kenneth Appelbaum, M.D., and Arthur Brewer, M.D., the mental health and medical program directors respectively for the University of Massachusetts Correctional Health program, the medical and mental health provider for the DOC, both approved of Dr. Seil’s recommendations for hormone therapy, electrolysis, and access to gender appropriate items.
26. On June 1, 2006, Dr. Appelbaum testified that he and Dr. Brewer approved of these recommendations in Dr. Seil’s treatment plan.
Q. And when you received this report, your obligation under the contract was to review it, and if you approved it, to forward it to the health program Director and the Commissioner of -- excuse me, to the Department of Corrections for review by the Health Services Division and the Commissioner of Correction. Isn't that right? A. Yes, that is essentially the process. Q. And did you forward it to the Department of Corrections for approval? A. Yes, we did provide the Department of Corrections with the report. Q. And that indicated that you and Dr. Brewer agreed with the implementation of the recommendations of this report, at least with respect to Items 1, 2 and 3? A. Correct. June 1, 2006 Tr. at 47:7-48:3.
27. Nearly one year after the first decision of this Court, the DOC commenced treating Kosilek for GID in the summer of 2003. At that time, Kosilek was informed by MCI-Norfolk medical staff that SRS had been approved. On August 21, 2003, Kosilek began treatment with hormones, commencing the one year "Real Life Test" required by the Standards of Care. Kosilek thus has been receiving hormones for nearly two years. She has been dressing and living as a woman to the full extent permitted by MCI-Norfolk.
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Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 8 of 15
She has developed breasts as a result of the hormone treatment. In addition, laser treatment has removed her facial hair.
28. Under the Standards of Care, Kosilek should have been evaluated for SRS after a one year Real Life Test. At the conclusion of one year on hormones, nothing occurred. Kosilek's mental health professional at MCI Norfolk, Mark Burrowes, was unable to give Kosilek any information regarding her treatment plan.
29. Under pressure of repeated requests from Kosilek and her counsel, in the winter of 2004, the DOC finally sought an evaluation concerning readiness for SRS. A report by GID specialists, selected by the DOC, was provided to the DOC on February 24, 2005. The Fenway Report is signed by Drs. Kapila and Kaufman, two experts selected by the University of Massachusetts medical staff, at the request of the DOC.
26. The Fenway Report states that Kosilek, although happier since put on hormones, "continues to feel incomplete without lower surgery." Report at 4. The Report notes:
• "She continues to have a strong, persistent, cross-sex identification, and her desire to continue transitioning through surgery is clear". Id. at 4.
• "Her ability to live full-time as a female in a male prison, as well as her record of good behavior and absence of conflict with others, suggests intense motivation, as well as real adaptability to her environment, despite obvious stressors." Id.
• "Her joy around being feminized through hormone therapy, facial and body hair removal, and her ability to have access, and to dress in, feminine attire and makeup is palpable. Id.
• "These responses further suggest that being able to express herself as female has been helpful in alleviating her gender dysphoria." Id.
27. Notwithstanding these substantial improvements, the Report notes that "Michelle continues to feel quite distressed, both with having male genitalia, as well as
8

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 9 of 15
not having female genitalia." Id.
28. The Report unequivocally recommends sexual reassignment surgery as medically necessary: "It appears likely that this surgery would allow Michelle to have full relief from the symptoms of gender dysphoria she has experienced over the course of her life and may well increase her chance of survival". Id. at 6.
29. The report has been reviewed by University of Massachusetts medical staff who have informed the DOC that they are presently unaware of any known medical or mental health contraindication to providing sexual reassignment surgery.
30. Although the report was transmitted to the DOC on February 24, 2005, it was not presented to plaintiff or her counsel until March 5, 2005, after an order of this Court issued on March 2, 2005 requiring the DOC to do so.
31. Not satisfied with the recommendations made by the experts procured by the DOC, Defendant secured the services of Cynthia S. Osborne, M.S.W., to "review" the Fenway Report. Ms. Osborne has never had any contact with Kosilek.
32. The current stance by the Department of Correction creates an inevitable sense of deja vu. The retention of a second expert in circumstances where the DOC does not like the recommendation of its own selected expert is all too familiar and replicates the prior conduct of the DOC regarding the opinion of Dr. Forstein. As this Court found:
In June, 2000, Dr. Forstein was asked by representatives of the DOC whether his recommendations for treating Kosilek in prison would differ from those in his March 15, 2000 report which addressed what he would prescribe if Kosilek were in the community rather than incarcerated. When Dr. Forstein stated that his recommendations regarding what was required to treat Kosilek adequately were not altered by the fact that Kosilek was incarcerated, the DOC terminated its relationship with him.
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Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 10 of 15
Kosilek v. Maloney at 173 (emphasis added). 33. The DOC then retained Dr. Robert Dickey, a gender specialist in Canada,
who is the author of an article recommending that inmates not receive sexual reassign hormones or surgery while in prison. As this Court found, Dr. Dickey and his colleagues at the Clark Institute do not use the Standards of Care, which are regularly relied upon by experts in the United States and elsewhere for treating gender identity disorders. Id. Dr. Dickey's approach, as this Court found "would almost always preclude initiating hormones for an inmate for whom they had not been prescribed prior to incarceration." Moreover, the Court found that the DOC had prepared a treatment plan for Kosilek without the participation of her regular mental health professional. Id. at 174-175. Ms. Osborne has never examined Kosilek. She was selected, like Dr. Dickey, in resultoriented fashion because she was known to the defendants and to their agents and employees as a medical expert who testifies on behalf of prisons, and against inmates who seek treatment for GID. Notwithstanding the lack of an examination of Kosilek, she did not hesitate to express a view that treatment should be denied. Her report stated:
• Kosilek was inappropriate for sexual reassignment surgery because Ms. Osborne did not have sufficient knowledge of Kosilek's history.
• Incarcerated individuals "are usually individuals who cannot make adequate psychosocial adjustment in the real world and who would rarely if ever succeed in a real life experience in the real world."
• "With the Harry Benjamin Standard as they are, how it can [sic] be justified that criminals in the real world don't qualify for hormones or surgery but incarcerated criminals do, or that non-incarcerated individuals must so often face and adjust to losses associated with their inability to access, for any number of reasons, desired feminizing options but incarcerated individuals must not, is, in my opinion, beyond reason."
• "in my view, providing surgery, or even hormones, to incarcerated individuals, is an undesirable lowering of the [Harry Benjamin] Standards,
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Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 11 of 15
and an explicit violation of the criteria regarding sociopathy and suicidality." Osborne Report at 5. 35. Osborne, in addition to not having examined Kosilek, expresses views that are contrary to the medical opinions expressed by Drs. Kapila and Kaufman, the University of Massachusetts retained experts who did examine Kosilek. Moreover, her views are contrary to generally accepted medical opinion and make unwarranted assumptions about what is constitutionally required.
36. On May 27, 2005, former Commissioner and defendant Kathleen Dennehy signed a report regarding "Anticipated Safety and Security Concerns Arising From the Allowance of Inmate Michele [sic] Kosilek's Request For Sex Reassignment Surgery". One week prior to that report, Dennehy had announced her views to a television "Spotlight Team" in conjunction with a report on the cost of treatment for GID.
37. That report, which focuses largely on security issues involved in arranging for sexual reassignment surgery, does not raise any security concerns sufficient to overcome the Eighth Amendment obligation to provide adequate medical treatment.
38. The so-called security concerns set forth in the Security Report are wholly
pretextual. Conclusions reflected in the Security Report did not arise from legitimate or bona fide security concerns, but rather from a distaste for sexual reassignment surgery.
39. On May 7, 2008, Defendant Clarke filed his Statement of Commissioner Harold W. Clarke Regarding Inmate Michelle Kosilek’s Requset for Sex Reassignment Surgery. The Statement largely followed the Security Report filed by former defendant Dennehy in 2005, and concluded that safety and security concerns prevented him from
11

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 12 of 15
allowing Ms. Kosilek to receive SRS. 40. On May 12 and 13, 2008, Defendant Clarke testified in this matter and
reiterated that he had made the official decision to deny Ms. Kosilek SRS. 41. The defendants, by failing to provide adequate medical treatment for
Kosilek have disregarded her serious medical need and placed her at a substantial risk of serious medical harm. Kosilek has been diagnosed by physicians retained by the DOC as having a serious medical need. She has been denied adequate medical care — the very care recommended by the DOC retained experts — for her serious medical need.
42. The defendants, who are the officials responsible for making the relevant decisions regarding Kosilek's care, are aware based on information they have received from University of Massachusetts, and from the recommended experts, that a serious risk of harm exists and the defendants have drawn the inference that such a risk exists. Nonetheless, the defendants have behaved wantonly by failing to provide adequate medical care.
43. The defendants are acting in bad faith and do not perceive any genuine conflict between providing adequate medical treatment and "security" concerns.
44. The defendants' treatment decisions regarding Kosilek were not based on her unique circumstances, or an individualized medical evaluation of Kosilek, but were rather based on a choice made for political, not medical reasons. The defendants' reasons for denying medical treatment are not rooted in legitimate penological concerns.
43. The defendants have knowingly and unreasonably disregarded an intolerable risk of harm to Kosilek and will continue to do so unless injunctive relief is
12

Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 13 of 15
entered. COUNT I
Denial of Adequate Medical Treatment with Deliberate Indifference to a Serious Medical Need in Violation of the Eighth Amendment
44. The plaintiff repeats and realleges the allegations of paragraphs 1 through 43 as if fully set forth herein.
45. Kosilek has a serious medical need for full treatment in accordance with the discretion of her treating physicians and medical personnel including the recommendations of consulting physicians experienced in the treatment of GID, including but not limited to the recommendations set forth in the Seil Report and the Fenway Report.
46. Kosilek's serious medical need has not been treated and she has been denied full treatment, including SRS.
47. Defendants have been deliberately indifferent to Kosilek's serious medical needs and have denied her treatment for reasons that are unrelated to her medical needs or to legitimate security concerns. Defendants know that medical experts consider Kosilek to be at risk for serious medical harm and have knowingly disregarded that risk.
48. Defendants' denial of medically necessary care for Kosilek is deliberately indifferent to her serious medical need and constitutes cruel and unusual punishment in violation of Kosilek's rights under 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution.
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Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 14 of 15 49. Kosilek faces a substantial and imminent risk of serious medical harm.

PRAYERS FOR RELIEF

WHEREFORE, Plaintiff requests that this Court enter relief as follows:

1. Enter injunctive relief against the defendants enjoining them from

interfering with the discretion of the mental health and other medical professionals

involved in her care;

2. Enter injunctive relief against the defendants enjoining them to provide

adequate medical care to Kosilek consistent with the treatment recommendations as set

forth in the Seil Report and the Fenway Report, including but not limited to SRS and an

independent medical evaluation by a GID specialist for electrolysis;

3. Award reasonable attorneys fees and costs to plaintiff's counsel under 42

U.S.C. § 1988; and

4. Award such other relief as shall be required in the interests of justice.

Date: April 16, 2010

/s/ Joseph L. Sulman Joseph L. Sulman (BBO #663635) LICHTEN & LISS-RIORDAN, P.C. 100 Cambridge Street, 20th Floor Boston, MA 02114 jsulman@llrlaw.com
Frances S. Cohen (BBO No. 542811) BINGHAM MCCUTCHEN LLP 150 Federal Street Boston, MA 02210 Phone: (617) 951- 8872 Fax: (617) 951-8736 frances.cohen@bingham.com

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Case 1:00-cv-12455-MLW Document 520 Filed 04/16/10 Page 15 of 15
CERTIFICATE OF SERVICE I, Joseph L. Sulman, hereby certify that a true copy of the above document was served upon the attorney of record for each other party by ECF on this 16th day of April, 2010.
/s/ Joseph L. Sulman Joseph L. Sulman
15

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

MICHELLE L. KOSILEK, Plaintiff,
v.
LUIS S. SPENCER, in his official capacity as Commissioner of the Massachusetts Department of Correction,
Defendant.

) ) ) ) C.A. No. 00-12455-MLW ) ) ) ) ) )

MEMORANDUM AND ORDER ON EIGHTH AMENDMENT CLAIM

WOLF, D.J.

September 4, 2012

I. SUMMARY . . . . . . . . . . . . . . . . . . . . . . . 1
II. THE APPLICABLE STANDARDS . . . . . . . . . . . . . 21
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW . . . . . . . 37
A. Kosilek has a Gender Identity Disorder . . . . . 39
B. Kosilek I . . . . . . . . . . . . . . . . . . . 40
C. The Aftermath of Kosilek I . . . . . . . . . . . 49
D. The Trial of Kosilek II . . . . . . . . . . . . 67
E. The Eighth Amendment Analysis . . . . . . . . . 76
1. Kosilek has a Serious Medical Need . . . . 77
2. Sex Reassignment Surgery is the Only Adequate Treatment for Kosilek's Serious Medical Need . . . . . . 80
3. Kosilek Has Satisfied the Subjective Prong of the Deliberate Indifference Test . . . . . . . 94
4. The Defendant's Stated Security Concerns are Pretextual and do not Justify Denying Kosilek Sex Reassignment Surgery . . . . . . . . . 98
5. Defendant's Deliberate Indifference Will Continue and, Therefore, Kosilek is Entitled to a Narrowly-Tailored Injunction . . . . . 119
IV. ORDER . . . . . . . . . . . . . . . . . . . . . . . . 126

I. SUMMARY This is an unusual case for an obvious reason and another that
is less evident. This case is unusual because a transsexual prisoner, plaintiff Michelle Kosilek, seeks an unprecedented court order requiring that the defendant Commissioner of the Massachusetts Department of Correction (the "DOC") provide him with sex reassignment surgery to treat his major mental illness, severe gender identity disorder. This case is also unusual because until recently inmates suing for medical care have typically sought treatment that prison doctors were unwilling to prescribe. In this case, however, Kosilek is seeking the treatment that has been prescribed for him by the DOC's doctors as the only form of adequate medical care for his condition. Such cases have recently become more common in Massachusetts because the DOC has repeatedly denied transsexual prisoners prescribed treatment for reasons that the courts have found to be improper. See Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011); Soneeya v. Spencer, No. CIV.A.07-12325, 2012 WL 1057625 (D. Mass. Mar. 29, 2012); Brugliera v. Comm'r of Mass. Dep't of Corr., No.07-40323, 2009 U.S. Dist. LEXIS 131002 (D. Mass. Dec. 16, 2009); Kosilek v. Maloney, 221 F. Supp. 156 (D. Mass. 2002) ("Kosilek I").
Kosilek is serving a life sentence, without possibility of parole, for murdering his wife. Kosilek suffers from a gender identity disorder, which is recognized as a major mental illness by the medical community and by the courts. Kosilek is, therefore, a
1

transsexual – a man who truly believes that he is a female cruelly trapped in a male body. This belief has caused Kosilek to suffer intense mental anguish. This anguish has caused Kosilek to attempt to castrate himself and to attempt twice to kill himself while incarcerated, once while he was taking the antidepressant Prozac.
The Harry Benjamin Standards of Care (the "Standards of Care") are protocols used by qualified professionals in the United States to treat individuals suffering from gender identity disorders.1 According to the Standards of Care, psychotherapy with a qualified therapist is sufficient treatment for some individuals. In other cases psychotherapy and the administration of hormones provide adequate relief. There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate.
This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized. For example, in 2010, the United States Tax Court held that the costs of feminizing hormones and sex reassignment surgery are for certain individuals tax deductible as forms of necessary "medical care" for a serious, debilitating condition that is sometimes associated with suicide and self-castration, rather than nondeductible expenses for "cosmetic" treatment. See O'Donnabhain v.
1The Harry Benjamin International Dysphoria Association has been renamed and is now known as the World Professional Association on Transgender Health (the "WPATH"). The Standards of Care have been renamed the "Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People," published by WPATH.
2

Comm'r of Internal Revenue, 134 T.C. 34, 70, 76-77 (U.S. Tax. Ct. 2010). Similarly, in 2010, the Seventh Circuit held that a state statute prohibiting hormone therapy and sex reassignment surgery for any prisoner violated the Eighth Amendment because such forms of treatment could be medically necessary to treat some inmates adequately. See Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).
In the instant case, Kosilek alleges that his rights under the Eighth Amendment are being violated by the DOC's refusal to provide him with the sex reassignment surgery that, following the Standards of Care, the DOC's doctors have found to be the only adequate treatment for the severe gender identity disorder from which Kosilek suffers. Kosilek still severely suffers from this major mental illness despite the fact that he is receiving psychotherapy and female hormones. After a long period of pretense and prevarication, DOC Commissioner Kathleen Dennehy testified in 2006 that she understood and accepted the DOC doctors' view that Kosilek is at substantial risk of serious harm and that sex reassignment surgery is the only adequate treatment for his condition.2
2The testimony in this case was presented primarily in 2006 and concluded in 2008. Later legal and factual developments generated further hearings, most recently in October, 2011.
The parties have repeatedly agreed, including in October, 2011, that there have been no material changes in the facts since the testimony was completed and that the court should decide the case without hearing additional testimony. See Dec. 21, 2009 Tr. at 16; Nov. 2, 2010 Plaintiff's Response to Court's October 21, 2010 Order and Objection to Defendant's Motion to Supplement the
3

However, she claimed that providing such treatment would create insurmountable security problems and that she denied Kosilek sex reassignment surgery because of those security considerations.
Kosilek has proven, however, that the Commissioner's purported security concerns are a pretext to mask the real reason for the decision to deny him sex reassignment surgery – a fear of controversy, criticism, ridicule, and scorn. Therefore, Kosilek has proven that the DOC is violating his rights under the Eighth Amendment. He has also established that this violation will continue if the court does not now order the DOC to provide the treatment its doctors have prescribed. Therefore, such an injunction is being issued.
In summary, the reasons for these conclusions are as follows. The Eighth Amendment prohibits cruel and unusual punishment. The Supreme Court has explained that "[t]he Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotation omitted).
Among other things, the Eighth Amendment does not permit the unnecessary infliction of pain on a prisoner, either intentionally
Record (Under Seal); Nov. 3, 2010 Defendant's Response to the Court's Order of October 21, 2010 (Under Seal); Aug. 18, 2011 Tr. at 10; Oct. 12, 2011 Tr. at 4-5. The court also agrees that it is appropriate to decide the case without hearing any additional testimony. The court is, however, ruling on several pending motions relating to proffered evidence and admitting some, but not all, of it. See Sept. 4, 2012 Memorandum and Order on Pending Motions.
4

or because of the deliberate indifference of the responsible prison
official. Any such infliction of pain is deemed "wanton." The
wanton infliction of pain on an inmate violates the Eighth
Amendment.
Prisoners have long been held to have a right to humane
treatment, including a right to adequate care for their serious
medical needs. It may seem strange that in the United States
citizens do not generally have a constitutional right to adequate
medical care, but the Eighth Amendment promises prisoners such
care. The Supreme Court recently explained the reason for this
distinction:
To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates may actually produce physical torture or a lingering death. Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.
Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (internal quotations
and citations omitted).
Nevertheless, because the Eighth Amendment prohibits only
certain punishments, to establish a violation when a prisoner's
health is at issue, it is not sufficient for an inmate to prove
only that he has not received adequate medical care. Rather, he
must also prove that the official responsible for his care has
5

intentionally ignored a serious medical need or otherwise been deliberately indifferent to it.
The deliberate indifference test has an objective and subjective prong. To satisfy the objective prong in a case involving medical care, a prisoner must show that he has a serious medical need. A serious medical need is one that involves a substantial risk of serious harm if it is not adequately treated. Typically, it is a need 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.
Adequate medical care requires treatment by qualified personnel, who provide services that are of a quality acceptable when measured by prudent professional standards in the community. Adequate care is tailored to an inmate's particular medical needs and is based on medical considerations. Absent legitimate countervailing penological considerations, adequate care addresses the cause of the person's suffering rather than merely the symptoms. As the Seventh Circuit recently wrote in finding that a statute prohibiting hormones and sex reassignment surgery for all prisoners violated the Eighth Amendment:
Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.
6

Fields, 653 F.3d at 556 (citation omitted).
An inmate is not entitled to ideal care or the care of his
choice. Courts must defer to the decisions of prison officials
concerning what form of adequate treatment to provide an inmate.
However, courts must decide if the care being provided is minimally
adequate.
With regard to the subjective prong, to establish deliberate
indifference it must be proven that the responsible official knows
that the prisoner is at high risk of serious harm if his condition
is not adequately treated. In certain cases even proof that a
prison official knew that an inmate was suffering severely from a
serious condition that was not being adequately treated might not
violate the Eighth Amendment. As this court wrote in 2002:
Because the Eighth Amendment proscribes the unnecessary infliction of pain on a prisoner, the practical constraints imposed by the prison environment are relevant to whether the subjective component of the Eighth Amendment test has been satisfied. The duty of prison officials to protect the safety of inmates and prison personnel is a factor that may properly be considered in prescribing medical care for a serious medical need. It is conceivable that a prison official, acting reasonably and in good faith, might perceive an irreconcilable conflict between his duty to protect safety and his duty to provide an inmate adequate medical care. If so, his decision not to provide that care might not violate the Eighth Amendment because the resulting infliction of pain on the inmate would not be unnecessary or wanton. Rather, it might be reasonable and reasonable conduct does not violate the Eighth Amendment.
Kosilek I, 221 F. Supp. 2d at 161.
7

In 2011, the First Circuit addressed this issue in Battista. In affirming an order that the DOC provide prescribed female hormones to a transsexual prisoner, the First Circuit stated that:
Medical "need" in real life is an elastic term: security considerations also matter at prisons . . . , and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials' actions are not "deliberate indifference." Battista, 645 F.3d at 454. However, as the First Circuit also explained in Battista, prison officials forfeit the deference to their decisions by the courts to which they are generally entitled when their stated reasons for refusing treatment are proven to be pretexts for a purpose that does not serve a legitimate penological objective. See id. at 455. Even if a violation of the Eighth Amendment is proven, a court may not issue an injunction unless it is also established that the violation will continue in the future. In addition, if an injunction is justified, it must be narrowly drawn to remedy the constitutional violation and not otherwise displace the discretion of prison officials. Therefore, in this case to obtain an order directing the DOC to provide sex reassignment surgery, Kosilek has been required to prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied
8

that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant's unconstitutional conduct will continue in the future.
All of the requirements for an injunction ordering the DOC to provide Kosilek sex reassignment surgery have been met in the instant case, which is essentially a continuation of Kosilek I. In Kosilek I, a specialist retained by the DOC to treat Kosilek found that he was suffering from a severe gender identity disorder. Consistent with the Standards of Care, that doctor recommended that Kosilek be provided female hormones and, after a year of living as a female, be evaluated for possible sex reassignment surgery. After receiving that recommendation, the DOC fired the specialist and retained instead a Canadian doctor known for his view that hormones should never be prescribed for a prisoner, like Kosilek, for whom they were not prescribed before his incarceration.
After trial, the court found that Kosilek did indeed have a serious medical need. It also found that Kosilek was being denied adequate medical care. More specifically, the court found that the Canadian doctor's rigid "freeze-frame" policy, which had been adopted by the DOC, effectively prohibited DOC doctors from considering whether Kosilek should have hormone therapy and sex reassignment surgery, which were forms of treatment prescribed by qualified professionals for some, but not all, individuals suffering from gender identity disorders. As a result of that policy, no individualized medical evaluation had been done for the
9

purpose of prescribing treatment for Kosilek's serious medical need.
Nevertheless, the court did not order Michael Maloney, the Commissioner of the DOC at the time, to provide Kosilek with female hormones for several reasons. First, it found that Maloney had not adopted the Canadian doctor's policy with the intent to inflict pain on Kosilek or otherwise as a result of deliberate indifference. Rather, Maloney had not focused on Kosilek's medical condition and did not have the understanding of Kosilek's suffering necessary to justify a finding of deliberate indifference. The court also found that while Maloney had some sincere security concerns about providing Kosilek with hormones or sex reassignment surgery, his reluctance to authorize these treatments was substantially attributable to his fear of public and political criticism that any expenditure for hormones or sex reassignment surgery would be an improper use of public funds. As the court explained, however: "[S]ecurity is a legitimate consideration for Eighth Amendment purposes. A concern about political or public criticism for discharging a constitutional duty is not." Kosilek I, 221 F. Supp. 2d at 162. The court also did not issue the requested injunction because it expected that, educated by the decision in Kosilek I, Maloney would make future decisions concerning Kosilek in a manner that did not violate the Eighth Amendment. Id. at 192.
The court concluded its summary in Kosilek I by stating that:
10

If Maloney, in good faith, reasonably decides that there is truly no way that he can discharge both his duty to protect safety and his duty to provide Kosilek with adequate medical care, and concludes that security concerns must trump the recommendations of qualified medical professionals, a court will have to decide whether the Eighth Amendment has been violated. That question is not now before this court. If, however, concerns about cost or controversy prompt Maloney to deny Kosilek adequate care for his serious medical need, Maloney will have violated the Eighth Amendment. Kosilek will then likely be entitled to the injunction that he has unsuccessfully sought in this case.
Id. at 162 (emphasis added).
The First Circuit has cited Kosilek I as the first in a series
of cases demonstrating the DOC's "resistance" to providing adequate
medical care for transsexual prisoners. See Battista, 645 F.3d at
454 (citing Kosilek I, 221 F. Supp. 2d at 159-60; Brugliera, 2009
U.S. Dist. LEXIS 131002). In 2012, a district court found that the
DOC continued this resistance in the case of Katheena Soneeya. See
Soneeya, 2012 WL 1057625, at *15-16.
If Maloney had remained the Commissioner of the DOC, he might
have heeded the court's warning that an injunction would issue if
he denied Kosilek adequate medical care because of a fear of
controversy or criticism. Despite testifying at trial that it
would be impossible to reasonably assure Kosilek's safety if he
were given female hormones, Maloney subsequently revised his view.
The DOC engaged a specialist in treating gender identity disorders
to evaluate Kosilek and, in 2003, Maloney allowed Kosilek to begin
receiving the hormone treatments that the specialist prescribed.
Kosilek has since lived in the general population of a male prison,
11

MCI Norfolk, with breasts and other feminine characteristics, without being assaulted or engaging in any sexual activity.
However, in December, 2003, Maloney was succeeded as Commissioner by Dennehy. Dennehy was determined not to be the first prison official to provide an inmate sex reassignment surgery. Indeed, she testified that she would retire rather than obey an order from the Supreme Court to do so. Acting on this determination, Dennehy engaged in a pattern of pretense, pretext, and prevarication to deny Kosilek the sex reassignment surgery that the DOC doctors prescribed after Kosilek had completed more than a year of "real life experience" living as a female in prison.
When a specialist retained by the DOC doctors recommended that Kosilek receive sex reassignment surgery, as Deputy Commissioner Dennehy participated in the decision to have him fired. When Dennehy became Commissioner, she halted certain prescribed treatments for Kosilek and other transsexual prisoners, purportedly to review their cases, and long delayed decisions on whether such treatments would be allowed. Departing from the DOC's standard practice of relying on its doctors to retain specialists, Dennehy had the DOC hire Cynthia Osborne, a social worker who worked in the Johns Hopkins psychiatric department, which was long led by a doctor known for his religious and moral opposition to sex reassignment surgery. That department was also known for its view that a prisoner should never be provided sex reassignment surgery. Osborne had advised several states that sex reassignment surgery
12

was not appropriate for each of the prisoners she had evaluated. Dennehy was not truthful when she testified that the DOC did not hire Osborne because of her predictable position that Kosilek should not receive sex reassignment surgery. In addition, Dennehy long falsely claimed that she did not understand whether the DOC doctors were recommending sex reassignment surgery for Kosilek.
In this case, Kosilek has proven that he still has a severe gender identity disorder. Although female hormones have helped somewhat, he continues to suffer intense mental anguish because of his sincere and enduring belief that he is a female trapped in a male body. That anguish alone constitutes a serious medical need. It also places him at high risk of killing himself if his major mental illness is not adequately treated.
As the DOC doctors responsible for treating Kosilek and the experts who testified on Kosilek's behalf credibly concluded, sex reassignment surgery is the only adequate treatment for Kosilek's serious medical need. The DOC's trial expert, Dr. Chester Schmidt, a psychiatrist from Johns Hopkins, proposed providing Kosilek with psychotherapy and antidepressants, rather than sex reassignment surgery. Dr. Schmidt's recent work focuses primarily on medical billing procedures rather than treatment of gender identity disorders. Dr. Schmidt does not accept the Standards of Care, which as explained earlier are followed by prudent professionals. His approach to dealing with Kosilek's condition would not be employed by prudent professionals in the community. Moreover,
13

providing Kosilek antidepressants would not reduce his suffering to a level at which he would no longer have a serious medical need. Kosilek has already tried to kill himself once while taking Prozac and his experts credibly testified that he would remain at high risk of doing so again.
Although Dennehy long falsely claimed that she did not know whether the DOC's doctors were recommending sex reassignment surgery as medically necessary for Kosilek, she eventually testified at trial that she understood and accepted that Kosilek was at a significant risk of serious harm if not provided such treatment. She never claimed, let alone proved, that she believed that Dr. Schmidt's approach would provide adequate treatment for Kosilek. Dennehy correctly concluded that she was not competent to make clinical judgments.
Rather, Dennehy testified that she was denying the sex reassignment surgery prescribed for Kosilek solely because of insurmountable security concerns. Kosilek has proven, however, that this contention is not credible. As described in detail in the Memorandum, Dennehy testified untruthfully on many matters. This contributes to the conclusion that her stated reasons for refusing to allow Kosilek to receive the surgery were pretextual. In addition, Dennehy announced that security concerns made it impossible to provide Kosilek sex reassignment surgery without conducting the security review required by the DOC's established procedures. Such a review would have included a written assessment
14

from the Superintendent of MCI Norfolk, who had previously advised Commissioner Maloney that providing Kosilek female hormones would not create unmanageable security problems. Dennehy incredibly claimed that, despite Kosilek's excellent record in prison and while being transported to medical appointments and court, there was an unacceptable risk that Kosilek would attempt to flee while being transported to get the treatment that he had dedicated twenty years of his life to receiving. In any event, Dennehy ultimately admitted that the safety of Kosilek and others could be reasonably assured by placing him in an onerous form of protective custody after receiving sex reassignment surgery.
As explained in detail in the Memorandum, Dennehy did not decide to deny Kosilek sex reassignment surgery because of a sincere or reasonable concern for security. Rather, she was motivated by her understanding that providing such treatment would provoke public and political controversy, criticism, scorn, and ridicule. She had ample reasons to expect such a reaction. The Lieutenant Governor in whose administration Dennehy served publicly opposed using tax revenues to provide Kosilek sex reassignment surgery. Many members of the state legislature, including one who was close to Dennehy, did the same. In addition, the media regularly ridiculed the idea that a murderer could ever be entitled to such "bizarre" treatment. See, e.g., Brian McGrory, "A test case for a change," The Boston Globe, June 13, 2000.
15

Elected officials are entitled to express their views on whether a prisoner should receive sex reassignment surgery. The media has the right to comment critically on the conduct of prison officials and judges as well. Every citizen has a right to criticize public officials, including judges, too.
However, a prison official acts with deliberate indifference and violates the Eighth Amendment if, knowing of a real risk of serious harm, she denies adequate treatment for a serious medical need for a reason that is not rooted in the duties to manage a prison safely and to provide the basic necessities of life in a civilized society for the prisoners in her custody. Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose. It is precisely the type of conduct the Eighth Amendment prohibits.
As the Supreme Court has explained, "[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Therefore, "[t]he right to be free of cruel and unusual punishments, like other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections." Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring) (internal quotation omitted).
16

Prisoners who have lost their liberty by murdering others may understandably be unsympathetic candidates for the humane treatment that they denied their victims. However, as future Supreme Court Justice Anthony Kennedy wrote in 1979: "[T]he whole point of the [Eighth] [A]mendment is to protect persons convicted of crimes. Eighth [A]mendment protections are not forfeited by one's prior acts." Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979). It is despised criminals, like Kosilek, who are most likely to need the protection of the Eighth Amendment and its enforcement by the courts.
This court fully understands that special care should be exercised before judges intrude on matters of prison administration. It recently expressed this view in approving a settlement by the DOC of a class action in which it was alleged that the practice of placing mentally ill prisoners in prolonged segregation was unconstitutional, in part because it was causing many inmates to kill themselves. See Disability Law Ctr. v. Mass. Dep't of Corr., No. CIV.A.07-10463, 2012 WL 1237760, at *1 (D. Mass. Apr. 12, 2012). Like the district court in Battista, this court has been cautious in deciding to grant the relief sought in order to assure that it was both justified and necessary. See Battista, 645 F.3d at 455 (stating that district judge was initially "far from anxious to grant the relief sought" but did so after perceiving a "pattern of delays"). It has given the defendant many opportunities to consider relevant information and
17

reconsider its decision to deny Kosilek sex reassignment surgery.

It required Dennehy to read certain trial testimony so she could

make a more fully informed decision on whether to permit the

prescribed surgery. The court obtained the views of the DOC's

doctors and an independent expert on whether Dr. Schmidt's proposed

approach would provide Kosilek adequate medical care. In addition,

it required Dennehy's immediate successor as Commissioner, Harold

Clarke, to report on whether he would reverse Dennehy's decision.

However, the DOC, through several Commissioners, has continued,

without proper justification, to refuse to discharge its

constitutional duty to provide Kosilek the adequate care required

for his serious condition. It is evident that the defendant will

continue to violate Kosilek's Eighth Amendment rights if a court

order is not issued.

As the Supreme Court has held, "a policy of judicial restraint

cannot encompass any failure to take cognizance of valid

constitutional claims whether arising in a federal or state

institution." Procunier v. Martinez, 416 U.S. 396, 405 (1974).

Rather, as the Court more recently instructed:

If government fails to fulfill [its] obligation, the

courts have a responsibility to remedy the resulting

Eighth Amendment violation. Courts must be sensitive to

the State's interest in punishment, deterrence, and

rehabilitation, as well as the need for deference to

experienced and expert prison administrators faced with

the difficult and dangerous task of housing large numbers

of convicted criminals. Courts nevertheless must not

shrink from their obligation to enforce the

constitutional rights of all persons, including

prisoners.

Courts may not allow constitutional

18

violations to continue simply because a remedy would involve intrusion into the realm of prison administration. Brown, 131 S. Ct. at 1928-29 (internal quotations and citations omitted). Therefore, an injunction must issue in this case. As indicated earlier, any such order must be narrowly drawn to extend no further than necessary to correct the proven violation of the inmate's federal rights. See 18 U.S.C. §3626(a)(1)(A). In this case, Kosilek has proven that his Eighth Amendment rights have been violated by the DOC's refusal to provide the sex reassignment surgery prescribed by its doctors. The court is ordering the defendant to take all of the steps reasonably necessary to provide Kosilek that treatment as promptly as possible. The court is not deciding where the surgery should be done or who should perform it. Nor is the court deciding where Kosilek should be incarcerated after the surgery. It is the duty of the DOC to make those decisions reasonably and in good faith. As indicated earlier, in another case before this court, the DOC recently demonstrated that it could and would properly discharge its constitutional duty to provide adequate medical care to mentally ill prisoners who were committing suicide at a high rate when held in segregated confinement. See Disability Law Ctr., 2012 WL 1237760, at *1. In that case the DOC worked long, hard, and successfully to develop innovative ways to address both the serious medical needs of those inmates and the genuine concerns for
19

safety that they presented. As a result, a challenging class action was settled on a basis that this court found to be fair and reasonable.
The DOC has an equal obligation under the Eighth Amendment to make decisions concerning Kosilek that are not cruel and unusual. It has long been well-established that it is cruel for prison officials to permit an inmate to suffer unnecessarily from a serious medical need. It is unusual to treat a prisoner suffering severely from a gender identity disorder differently than the numerous inmates suffering from more familiar forms of mental illness. It is not permissible for prison officials to do so just because the fact that a gender identity disorder is a major mental illness is not understood by much of the public and the required treatment for it is unpopular.
Kosilek shares with every other inmate in the DOC's custody the right to have decisions concerning him made by prison officials reasonably and in good faith in order to assure that he is not again subject to the cruel and unusual punishment that the Eighth Amendment prohibits. The court hopes that the DOC will in the future recognize and respect that right.
II. THE APPLICABLE STANDARDS As the Supreme Court wrote in another case involving a
transsexual inmate, "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to
20

scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation omitted). The Eighth Amendment, in pertinent part, prohibits the infliction of "cruel and unusual punishments." U.S. Const., Am. VIII. Such punishments are those that are "incompatible with the evolving standards of decency that mark the progress of a maturing society" or that involve the "unnecessary and wanton infliction of pain" on an inmate. Estelle, 429 U.S. at 102-104 (internal quotations omitted); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth Amendment, therefore, "imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. at 832 (internal quotation omitted).
The Supreme Court has recently explained the reasons for the Eighth Amendment, and the important values that it both represents and protects:
As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.
21

Brown, 131 S. Ct. at 1928 (internal quotations and citations omitted). Because incarceration "takes from prisoners the means to provide for their own needs," society must provide for these basic needs or cause prisoners to suffer starvation, torture, and death. Id. "A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society." Id.; see also Farmer, 511 U.S. at 832; Kosilek I, 221 F. Supp. 2d at 177-78.
At issue in this case is a prisoner's right to medical care. As indicated earlier, "prison officials must ensure that inmates receive adequate . . . medical care." Farmer, 511 U.S. at 832. However, not "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Estelle, 429 U.S. at 105. A mere accident or even negligence is insufficient. Id. at 105-06; see also Feeney v. Corr. Med. Servs., 464 F.3d 158, 162 (1st Cir. 2006). "In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend 'evolving standards of decency' in violation of the Eighth Amendment." Estelle, 429 U.S. at 106; see also Braga v. Hodgson, 605 F.3d 58, 61 (1st Cir. 2010); Flanory v. Bonn, 604 F.3d 249, 253-54 (6th Cir. 2010). As the Supreme Court explained in Farmer, it must be proven that a prison official acted with "deliberate
22

indifference" to a substantial risk of serious harm in order to establish a violation of the Eighth Amendment. 511 U.S. at 835-47.
The test for a violation of the Eighth Amendment has both an objective and a subjective component. See id. at 846 n.9; Wilson v. Seiter, 501 U.S. 294, 298–99 (1991); DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991); De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). The objective component is satisfied where an inmate demonstrates that "he is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. In cases involving a denial of medical care, an inmate must show that he has a serious medical need for which he has not received adequate medical care. See Kosilek I, 221 F. Supp. 2d at 161; see also Estelle, 429 U.S. at 104. However, to violate the Eighth Amendment, a prison official must have a "sufficiently culpable state of mind, namely one of deliberate indifference to an inmate's health or safety." Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (internal quotations omitted). This requirement is subjective. A prison official must know of the substantial risk of serious harm faced by the inmate in order to violate the Eighth Amendment. See id.; see also Farmer, 511 U.S. at 837. However, even a prison official who knows of such a risk does not violate the Eighth Amendment if the denial of particular medical care is based on reasonable, good faith judgments balancing the inmate's medical needs with other legitimate, penological considerations. See Battista, 645 F.3d at 454. The deliberate
23

indifference requirement "follows from the principle that 'only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297).
As stated earlier, an inmate alleging a violation of the Eighth Amendment must first prove that he has a serious medical need. Generally, an inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm in order to prove a violation of the Eighth Amendment. See Farmer, 511 U.S. at 828, 835-43. Therefore, "a serious medical need" is one that involves a substantial risk of serious harm if it is not adequately treated. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) ("A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" (quoting Estelle, 429 U.S. at 104)).
The First Circuit has also defined a serious medical need as 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.'" Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18 (1st Cir. 1995) (quoting Gaudreault v. Mun. of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990)). Similarly, the Second Circuit has held that courts should look to the following factors in determining whether an inmate has a serious medical need:
24

(1) whether a reasonable doctor or patient would perceive the medical need in question as "important and worthy of comment or treatment," (2) whether the medical condition significantly affects daily activities, and (3) "the existence of chronic and substantial pain." Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). A serious medical need may be mental or physical. See Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991) (stating that there is "no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart") (internal quotations omitted). Therefore, deliberate indifference to an inmate's serious mental health needs violates the Eighth Amendment. See id.; see also Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006); Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996). With regard to the level of care to be provided, the First Circuit has stated that, "it is plain that an inmate deserves adequate medical care." United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987). "Adequate services" are "services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." Id. at 43. Therefore, as this court wrote in Kosilek I, "reference to established professional standards is important to determining the adequacy of medical care." 221 F. Supp. 2d at 180. Adequate medical care is also treatment that is "the product of sound medical judgment." Chance, 143 F.3d at 703. Sound
25

medical judgment is based on the needs of the particular prisoner. "The failure to consider an individual inmate's condition in making treatment decisions is . . . precisely the kind of conduct that constitutes a substantial departure from accepted professional judgment, practice, or standards such as to demonstrate that the person responsible did not actually base the decision on such a judgment." Roe v. Elyea, 631 F.3d 843, 862-63 (7th Cir. 2011) (internal quotation omitted); see also Soneeya, 2012 WL 1057625, at *10, *16 (holding that the DOC violated a transsexual prisoner's rights under the Eighth Amendment by relying on a blanket policy denying certain treatment, and stating that "[a]dequate care is based on an individualized assessment of an inmate's medical needs in light of relevant medical considerations"); Kosilek I, 221 F. Supp. 2d at 193 ("[D]ecisions 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.'") (quoting Allard v. Gomez, 9 Fed. App'x 793, 795 (9th Cir. 2001)).
Absent legitimate countervailing penological considerations, adequate medical care typically requires addressing the cause of the inmate's serious medical need rather than merely providing treatment to reduce the pain it causes. See Fields, 653 F.3d at 556. As indicated earlier, in holding that a state statute prohibiting hormone therapy and sex reassignment surgery for
26

inmates with severe gender identity disorders violated the Eighth Amendment, the Seventh Circuit recently wrote that "[s]urely, had the [] legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional." Id.; see also Wolfe v. Horn, 130 F. Supp. 2d 648, 653 (E.D. Pa. 2001) (although transsexual inmate was prescribed Prozac for depression, there was a fact question precluding summary judgment as to whether inmate received any treatment for transsexualism); West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (providing aspirin rather than recommended post-operative treatment may not constitute adequate medical care); Sulton v. Wright, 265 F. Supp. 2d 292, 300 (S.D.N.Y. 2003) ("[E]ven if an inmate receives 'extensive' medical care, a[n] [Eighth Amendment] claim is stated if, as here, the gravamen of his problem is not addressed.").
However, the fact that an inmate is entitled to adequate medical care does not mean that he is entitled to ideal care or to the care of his choice. See DeCologero, 821 F.2d at 42; DesRosiers, 949 F.2d at 18; Barron v. Keohane, 216 F.3d 692, 693 (8th Cir. 2000); Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); Fernandez v. United States, 941 F.2d 1488, 1493-94 (11th Cir. 1991). Prison officials have the right to exercise discretion in deciding which of several adequate treatments is chosen for a prisoner. See DeCologero, 821 F.2d at 42–43; DesRosiers, 949 F.2d at 19-20. Therefore, "[s]o long as the treatment given is
27

adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703 (emphasis added).
Moreover, "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." Farmer, 511 U.S. at 837. Therefore, if a prisoner satisfies the objective component of the test by establishing the denial of adequate medical care to treat a serious medical need, he must also demonstrate that prison officials had a "sufficiently culpable state of mind" – that of "'deliberate indifference' to an inmate's health or safety." Leavitt, 645 F.3d at 497. This component of the test is subjective. It does not require deliberate intent to harm an inmate, but does require that the official know of the substantial risk of harm to the inmate. See Farmer, 511 U.S. at 837; Battista, 645 F.3d at 453. Specifically, "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; see also Flanory, 604 F.3d at 254; Chance, 143 F.3d at 702; De'Lonta, 330 F.3d at 634.
State of mind "is often inferred from behavior." Battista, 645 F.3d at 453. Deliberate indifference to the serious medical needs of an inmate may be "evidenced 'by denial, delay, or interference with prescribed health care.'" Id. (quoting
28

DesRosiers, 949 F.2d at 19); see also Johnson v. Wright, 412 F.3d
398, 404 (2d Cir. 2005) ("[A] deliberate indifference claim can lie
where prison officials deliberately ignore the medical
recommendations of a prisoner's treating physicians."); Durmer v.
O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (sending inmate to
several specialists after first doctor prescribed expensive
physical therapy for a stroke could violate the Eighth Amendment,
depending on doctor's motives). Similarly:
while a single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of mere negligence, repeated examples of such treatment bespeak a deliberate indifference by prison authorities to [inmates'] agony . . . Indeed, it is wellsettled in [the Second] [C]ircuit that a series of incidents closely related in time . . . may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners.
Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) (internal quotation
omitted); see also Guglielmoni v. Alexander, 583 F. Supp. 821, 826
(D. Conn. 1984) (same).
Certain constraints facing prison officials are relevant to
the subjective state of mind component of the Eighth Amendment
test. See Wilson, 501 U.S. at 303. More specifically, "assuming
the conduct is harmful enough to satisfy the objective component of
the Eighth Amendment claim, whether it can be characterized as
'wanton' depends upon the constraints facing the official." Id.
(internal citation omitted); see also DesRosiers, 949 F.2d at 19.
As the Supreme Court reiterated in 1993, the inquiry into whether
deliberate indifference has been proven is "an appropriate vehicle 29

to consider arguments regarding the realities of prison administration." Helling v. McKinney, 509 U.S. 25, 37 (1993).3
The duty to reasonably assure inmate security is one of the realities of prison administration and, therefore, is relevant to the deliberate indifference analysis. See Farmer, 511 U.S. at 833; Battista, 645 F.3d at 454-55. More specifically, in addition to an inmate's medical needs, "security considerations also matter at prisons . . . and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials' actions are not 'deliberate indifference.'" Battista, 645 F.3d at 454 (quoting Farmer, 511 U.S. at 844-45).
Therefore, the deliberate indifference test "leave[s] ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources." Battista, 645 F.3d at 453. Prison administrators are usually entitled to deference by the courts in their judgment concerning what is necessary to discharge their duty to maintain
3In 1991, prior to the Supreme Court's 1993 decision in Helling and the 1994 decision in Farmer, the First Circuit discussed the practical constraints facing prison officials in considering the objective adequacy of medical care. See DesRosiers, 949 F.2d at 19. Helling and Farmer indicate that these constraints should instead be considered in determining whether prison officials acted with deliberate indifference.
30

institutional security. See Whitley v. Albers, 475 U.S. 312, 32122 (1986).
However, deference does not extend to "actions taken in bad faith and for no legitimate purpose." Whitley, 475 U.S. at 322; see also Fields, 653 F.3d at 558. Rather, prison officials forfeit their right to deference when their stated, legitimate grounds for refusing treatment are proven to be pretextual, and the plaintiff establishes that the "balancing judgments" were not "within the realm of reason and made in good faith." Battista, 645 F.3d at 454-55. This is true even if those officials were not motivated by a "sinister motive or 'purpose' to do harm to" the inmate. Id. at 455.
Because deference is not due to actions taken "for no legitimate purpose," Whitley, 475 U.S. at 322, prison officials may be found to be deliberately indifferent if they deny adequate treatment for a serious medical need for reasons that are not rooted in the responsibility to preserve internal order and discipline, and maintain institutional security. See Battista, 645 F.3d at 454-55; cf. Fields, 653 F.3d at 558 (deference not appropriate where blanket ban on hormone therapy not shown to have any security benefit). Such a denial of treatment in the face of a known risk of serious harm to an inmate, taken without reasonable, good faith penological justification, is the sort of "unnecessary and wanton infliction of pain" that the Eighth Amendment prohibits. Hope v. Pelzer, 536 U.S. 730, 737 (2002)
31

("[A]mong unnecessary and wanton inflictions of pain are those that
are totally without penological justification.") (internal
quotations omitted); White v. Farrier, 849 F.2d 322, 325 (8th Cir.
1988) (stating, in a case involving a transsexual prisoner, that
"[a]ctions without a penological justification may constitute an
unnecessary infliction of pain").
As explained in Kosilek I, the cost of adequate medical care
is not a legitimate reason for not providing such care to a
prisoner. See 221 F. Supp. 2d at 182. More specifically:
[I]t would not be reasonable to deny an inmate adequate medical care because it would be expensive to do so. Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985); Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991). "Lack of funds . . . cannot justify an unconstitutional lack of competent medical care and treatment for inmates." Ancata, 769 F.2d at 705.
Id. As the Eleventh Circuit stated in 1991:
We do not agree that "financial considerations must be considered in determining the reasonableness" of inmates' medical care to the extent that such a rationale could ever be used by so-called "poor states" to deny a prisoner the minimally adequate care to which he or she is entitled. Minimally adequate care usually requires minimally competent physicians. It may also sometimes require access to expensive equipment, e.g. CAT scanners or dialysis machines, or the administration of expensive medicines.
Harris, 941 F.2d at 1509 (quoting district court opinion); see also
Wilson, 501 U.S. at 301-02 (Court unaware of any officials ever
attempting to use a cost defense to avoid the holding of Estelle);
Fields, 653 F.3d at 556 ("[A]t oral argument . . . [the state]
disclaimed any argument that [the statute prohibiting hormone
32

therapy or sex reassignment surgery] is justified by cost savings"); Chance, 143 F.3d at 704 (finding that plaintiff's allegations that doctors "recommended extraction [of tooth] not on the basis of their medical views, but because of monetary incentives," if proven, would contribute to a showing of deliberate indifference on the part of the defendants); Durmer, 991 F.2d at 68-69 (finding that evidence that doctor wanted to avoid providing physical therapy to a prisoner because it "would have placed a considerable burden and expense on the prison and was therefore frowned upon throughout the prison health system" might contribute to a showing of deliberate indifference); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) ("We find no other explanation in the record than budget concerns for denying Jones's surgery. Budgetary constraints, however, do not justify cruel and unusual punishment."); Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974) ("Where state institutions have been operating under unconstitutional conditions and practices, the defenses of fund shortage and the inability of the district court to order appropriations by the state legislature, have been rejected by the federal courts."); Soneeya, 2012 WL 1057625, at *11 ("Cost of treatment, however, may not be used as a reason to deny an inmate medically necessary care."); Rosado v. Alameida, 349 F. Supp. 2d 1340, 1349 (S.D. Cal. 2004) ("[C]ase law suggests that the high costs associated with the [liver] transplant procedure do not preclude success on a deliberate indifference claim."); Renelique
33

v. Doe, No. CIV.A.99-10425, 2003 WL 23023771, at *15 (S.D.N.Y. Dec. 29, 2003) ("[C]onstitutionally deficient medical care of inmates cannot be justified by a facility's lack of funds.").4
Nor would it be permissible for a prison official to fail to provide adequate medical care to a prisoner because it would be unpopular or politically controversial to do so. As noted earlier, the Supreme Court has explained that "[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." Barnette, 319 U.S. at 638. "The right to be free of cruel and unusual punishments, like other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections." Furman, 408 U.S. at 268 (Brennan, J., concurring) (internal quotation omitted). "The whole point of the [Eighth] [A]mendment is to protect persons convicted of crimes. Eighth [A]mendment protections are not forfeited by one's prior acts." Spain, 600 F.2d at 194.
4This court does not construe the First Circuit's brief reference in Battista, 645 F.3d at 453, in general dicta, to "administrators who have to make difficult trade-offs as to risks and resources," to contradict the conclusion that cost is not a legitimate reason to deny an inmate adequate treatment for a serious medical need. Rather, this language may, at most, suggest that cost can properly be considered in choosing between adequate options for treating a prisoner.
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Finally, with regard to the generally applicable legal standards, the fact that this case only involves a request for declaratory and prospective injunctive relief, rather than monetary damages, has significance. In order to obtain an injunction, an inmate must prove that a prison official was, at the time of trial, "knowingly and unreasonably disregarding an objectively intolerable risk of harm, and . . . will continue to do so." Farmer, 511 U.S. at 846.
In addition, if a prisoner proves that he has been deprived of adequate medical care in violation of the Eighth Amendment and that a court order is required to correct that violation, under the Prison Litigation Reform Act (the "PLRA") the injunction issued must be "narrowly drawn, extend[] no farther than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. §3626(a)(1)(A). The PLRA also provides that "[t]he court [must] give substantial weight to any adverse impact on public safety or the operation of the [prison] system caused by the relief." Id.
The foregoing general principles concerning the Eighth Amendment as applied to the alleged denial of adequate medical care provide the following framework for analyzing Kosilek's claim. To prevail in this case, Kosilek must prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high
35

risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant's unconstitutional conduct will continue in the future. If Kosilek proves that he is entitled to relief, the injunction issued must be narrowly tailored to remedy the violation of his Eighth Amendment rights and not unnecessarily restrict the discretion of prison officials.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW The following facts have been proven by a preponderance of the
credible evidence at a 28-day trial, in which the court had the opportunity to observe the witnesses and to consider the extent to which their testimony was corroborated or contradicted by other evidence that was introduced. Some of the following facts were also found in Kosilek I, and their correctness was confirmed, rather than undermined, by the credible evidence presented in the instant case.5 See 221 F. Supp. 2d at 156.
5Kosilek argues that the defendant is collaterally estopped from challenging several facts that he asserts were litigated and determined in Kosilek I, specifically: (1) that gender identity disorder is a major mental illness; (2) that gender identity disorder is biological and innate and not a result of choice or upbringing; (3) that the Standards of Care describe the generally-accepted treatment for individuals with gender identity
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A. Kosilek has a Gender Identity Disorder
It is not disputed that Kosilek has long had a gender identity
disorder. As indicated earlier, gender identity disorder is widely
recognized by the medical community and the courts as a major
disorder; (4) that a real life experience as defined by the Standards of Care is possible in a prison setting; (5) that sex reassignment surgery is a possible, valid treatment for Kosilek despite her incarceration; and (6) that Kosilek's risk of suicide is sincere and not manipulative. Defendant disagrees.
The First Circuit has held that "[t]he principle of collateral estoppel, or issue preclusion . . . bars relitigation of any factual or legal issue that was actually decided in previous litigation between the parties, whether on the same or a different claim." Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 51 (1st Cir. 1997) (internal quotations and emphasis omitted). The Supreme Court has stated that "[t]o determine the appropriate application of collateral estoppel . . . necessitates three further inquiries: first, whether the issues presented by this litigation are in substance the same as those resolved against [defendant] in [the prior case]; second, whether controlling facts or legal principles have changed significantly since [the prior final judgment]; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion." Montana v. United States, 440 U.S. 157, 974-75 (1979).
It was necessary for the court to hear evidence on the disputed issues to determine whether any of the controlling facts found in Kosilek I have changed significantly. In addition, the court must decide Kosilek's condition at the time of trial, and the defendant's knowledge and state of mind then too. Although some of the disputed six issues might merit being given preclusive effect, the court has not done so. Rather, it has decided these issues again based on the evidence presented in the instant case.
There are, however, historical facts found concerning Kosilek's life before the 2002 decision in Kosilek I and the prior conduct of the DOC which could not be altered by subsequent events, and which were generally not disputed by the evidence in the instant case. Some of those facts provide valuable context for the issues that must now be decided and are, therefore, included in the court's discussion of Kosilek I.
37

mental illness. See, e.g., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition - Text Revisions ("DSM-IV-TR"); Farmer, 511 U.S. at 829; Battista, 645 F.3d at 450. As also described earlier, the Tax Court has recently characterized gender identity disorder as "a serious psychologically debilitating condition." O'Donnabhain, 134 T.C. at 61.
In Kosilek I, this court found that while a gender identity disorder is a major mental illness, it is not "necessarily a serious medical need for which the Eighth Amendment requires treatment" because "[a]s with other mental illness, gender identity disorders have differing degrees of severity." 221 F. Supp. at 184. The evidence in the instant case confirmed that "merely because someone is a transsexual, it does not inexorably follow that he or she needs" any particular form of treatment. Farmer v. Moritsugu, 163 F.3d 610, 615 (D.C. Cir. 1998); see also Kosilek I, 221 F. Supp. 2d at 184.
Therefore, it is necessary for the court to decide, among other things, the current severity of Kosilek's gender identity disorder and what is necessary to treat it adequately. These, and the other relevant questions, are best understood in the context of the facts found in Kosilek I.
B. Kosilek I As described more fully in Kosilek I, "Kosilek has long held a strong and persistent belief that he is a woman trapped in a
38

man's body." 221 F. Supp. 2d at 163. The belief was steadily manifest before Kosilek was ten years old. He suffered regular abuse, including being stabbed by his stepfather, because of his announced desire to live as a girl. Kosilek later obtained female hormones that were prescribed by a physician in exchange for sex. As a result of taking the hormones, Kosilek "'felt normal'" for the first time in his life.
While in a drug rehabilitation facility, Kosilek met Cheryl McCaul, who was working as a volunteer counselor. McCaul told Kosilek that his transsexualism would be cured by "a good woman," and married him. However, Kosilek's distress did not abate. In 1990, after McCaul became angry when she found Kosilek wearing her clothes, Kosilek murdered her. He then fled and was arrested in New York while wearing female clothing.
While awaiting trial, Kosilek again took female hormones in the form of birth control pills that were illegally provided by a guard. He also tried to obtain treatment, including eventually by filing the suit that resulted in the 2002 decision in Kosilek I.
Kosilek hired an expert who recommended psychotherapy with a qualified specialist in gender identity disorders, but the Bristol County Sheriff denied him this treatment. Kosilek then twice tried to kill himself before his trial, once while he was taking the antidepressant Prozac. In addition, Kosilek attempted to castrate himself.
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In 1992, Kosilek was convicted of murder and sentenced to life in prison without the possibility of parole. At MCI Norfolk, a medium security male prison operated by the DOC, Kosilek began living like a woman to the maximum extent possible. He had his name legally changed from "Robert" to "Michelle" and did everything he could to present himself as a female.
Prior to 2002, Kosilek had not been assaulted sexually while in the custody of the DOC at MCI Norfolk. Nor did he voluntarily have sexual relations with any other inmate.
At the time of both Kosilek I and the instant case, the DOC contracted with the University of Massachusetts Correctional Health Program ("UMass") to provide medical services, including mental health services, to inmates at MCI Norfolk and other facilities. As occurred in the instant case, UMass contracted with outside specialists when it lacked expertise in a particular area.
In Kosilek I, the court found that Kosilek had a severe form of gender identity disorder that caused him to suffer constant mental anguish. That anguish had prompted his attempts to kill and castrate himself. Kosilek's severe gender identity disorder was held to be a "serious medical need" within the meaning of the Eighth Amendment. This court also found that:
The Harry Benjamin Standards of Care (the "Standards of Care") are protocols used by qualified professionals in the United States to treat individuals suffering from gender identity disorders. According to the Standards of Care, psychotherapy with a qualified therapist is sufficient treatment for some individuals. In other cases psychotherapy and the administration of female hormones
40

provide adequate relief. There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate.
221 F. Supp. 2d at 158-59.
Kosilek, however, had not been provided any of the treatment
prescribed by the Standards of Care. This decision did not result
from the DOC's established process for addressing inmates' medical
needs. It was the then-Commissioner of the DOC Maloney's:
policy and usual practice to rely on the social workers and medical professionals employed by the DOC, and the outside experts they often consult, to determine whether an inmate has a serious medical need and, if so, what is necessary to treat it adequately. Kosilek, however, [was] dealt with differently. Because of Kosilek's lawsuit Maloney, as a practical matter . . . made the major decisions relating to Kosilek's medical care.
Id. at 159.
The court found in 2002 that Maloney's refusal to allow
Kosilek to get the female hormones DOC doctors had prescribed and
possibly, sex reassignment surgery, was "rooted in sincere security
concerns, and in a fear of public and political criticism as well."
Id. at 162.
Maloney knew that there was substantial public and political
opposition in Massachusetts to providing female hormones and sex
reassignment surgery to a prisoner, particularly including Kosilek.
For example, in 2000, a Boston Globe columnist prominently wrote:
Robert Kosilek is as remarkable a man as you would ever want to meet.
First, he's a certified wife killer, having been convicted of taking a wire to the throat of his beloved Cheryl, then hiding her body in the trunk of their car in
41

the parking lot of a North Attleboro mall.
Then he showed up at his trial in a dress, calling himself Michelle, telling anyone who would listen that his inner woman was trying to overcome his, well, outer man. Even his lawyer seemed unsure whether to call him he or she.
Now in prison, serving a life term without possibility of parole, he's grown his stringy brown hair all the way down his back. He wears polish on his fingernails. He says he pines every moment of every day to be the woman he was always meant to be. And he's demanding that the state, meaning you and me, pay the $25,000 for a sexchange operation, which the more politically correct call a "sexual reassignment."
But none of this is remarkable, just standard-issue bizarre. What's truly remarkable is his ability to make a complete and utter fool out of an otherwise thoughtful and respected federal jurist, US District Judge Mark L. Wolf.
Indeed, (s)he's actually made a mockery of our entire penal system, and in the process is costing us thousands of dollars and dozens of hours of valuable court time.
Brian McGrory, "A test case for a change," The Boston Globe, June
13, 2000.6 In addition, "[a]t the time of trial [of Kosilek I in
6The court may take judicial notice of the existence and content of published articles, even if they are not in the record before it, particularly when, as here, they are not being considered for the truth of the matters reported. See Fed. R. Evid. 201; United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 n.13 (2007)) (observing that, on appeal, courts have the discretion to expand the existing record to take judicial notice under Rule 201 of the existence and content of published articles); Ieradi v. Mylan Laboratories, Inc., 230 F.3d 594, 598 n.2 (3d Cir. 2000) (taking judicial notice of an article published in the New York Times that was not in the record); United States v. Isaacs, No. CR.A.07-732, 2008 WL 4346780, at *2 n.4 (C.D. Cal. Sept. 19, 2008) (taking judicial notice of articles published in the Los Angeles Times and rejecting argument that those articles were not actually "spread on the record in this case"); Northwest Bypass Grp. v. U.S. Army Corps
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February, 2002] the DOC was supporting proposed legislation that
would prohibit inmates with gender identity from changing their
names [and] . . . had not expressed a view on another bill that
would prohibit providing inmates with hormones and sex reassignment
surgery." Kosilek I, 221 F. Supp. 2d at 171 n.8. The court
concluded that:
Maloney did not regard sex reassignment surgery as an appropriate use of taxpayers' money. Maloney and his colleagues . . . thought that any such expenditure would be politically unpopular. Maloney did not want to authorize hormones or sex reassignment surgery for Kosilek or any other inmate unless he was legally obligated to do so.
Id. at 170-71.
Relying on his lawyers rather than on the DOC's doctors,
Maloney did several things designed to avoid the virtually
unprecedented, and foreseeably unpopular, step of providing female
hormones to a male prisoner. The DOC initially engaged Dr.
Marshall Forstein to serve as an expert in the litigation. Dr.
Forstein recommended that Kosilek receive psychotherapy from an
expert in gender identity disorders, be provided female hormones,
of Engineers, 488 F. Supp. 2d 22, 2526 (D.N.H. 2007) (taking judicial notice of newspaper article, though limiting consideration of facts contained in article to those that appeared undisputed); U.S. ex rel Lam v. Tenet Healthcare Corp., 481 F. Supp. 2d 673, 680 (W.D. Tex. 2006) ("Pursuant to Rule 201(b), Courts have the power to take judicial notice of the coverage and existence of newspaper and magazine articles."). In this case, the quoted article is not hearsay because it is not being considered for the truth of the matters reported in the article, but rather as evidence that such statements were made. See Fed. R. Civ. P. 801(c).
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and be given a consultation with an experienced surgeon who specialized in sexual reassignment surgery. This was not what Maloney wanted to hear. "When Dr. Forstein stated that his recommendations regarding what was required to treat Kosilek adequately were not altered by the fact that Kosilek was incarcerated, the DOC terminated its relationship with him." Id. at 173.
As part of what the First Circuit has characterized as a pattern of "resistance," to providing recommended treatment to transsexual prisoners, Battista, 645 F.3d at 454, Maloney made it clear to Dr. Ira Packer of UMass "that [he] did not want to provide Kosilek or any other inmate hormones or sex reassignment surgery." Kosilek I, 221 F. Supp. 2d at 169. As a result, Dr. Packer, who had no experience with gender identity disorders, looked for an expert who would support Maloney's determination not to provide such treatment.
Dr. Packer found the published work of a Canadian doctor, Robert Dickey, who had opined that sex reassignment surgery should never be considered for an inmate. Rather, it was Dr. Dickey's view that transsexual prisoners should be frozen in the "frame" in which they entered prison and receive female hormones only if they had been prescribed prior to incarceration.
Subsequently, without having read Dr. Forstein's report, Dr. Dickey's article on treatment of transsexual inmates, Dr. Packer's memorandum summarizing Dr. Dickey's article, or the Standards of
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Care, Maloney adopted Dr. Dickey's recommended, inflexible "freezeframe" policy for the DOC. Dr. Dickey was later engaged to testify at trial as the DOC's expert.
Dr. Dickey testified in support of the DOC's decision not to provide Kosilek hormones pursuant to its "freeze-frame" policy. The court did not find Dr. Dickey to be a persuasive witness, in part because he did not believe in the Standards of Care, which prudent professionals in the United States follow, and in part because his approach did not permit the individualized decisionmaking concerning an inmate's medical care that is required by the Eighth Amendment.
Rather, the court relied on the testimony of Kosilek's experts, Drs. George Brown and Forstein, and professionals employed by the DOC, including Dr. Packer and Kosilek's social worker Mark Burrowes, in finding that certain facts important to the Eighth Amendment analysis had been proven. Those facts included the following. In 2002, Kosilek's severe, untreated gender identity disorder was causing him intense mental anguish. As a result, he was at high risk of killing himself if his mental illness was not properly treated. Thus, Kosilek had a serious medical need. Id. at 160, 184-85. In addition, Kosilek had not been offered adequate medical treatment. Rather, the mere counseling Kosilek was being provided was found to be "'so clearly inadequate as to amount to a refusal to provide essential care.'" Id. at 185 (quoting Torraco,
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923 F.2d at 234). Therefore, the objective component of the Eighth
Amendment standard had been proven. Id. at 161, 189.
However, the court found that Kosilek had not satisfied the
subjective component of the deliberate indifference test. Rather,
it found that "Maloney knew many facts from which it could have
been inferred that Kosilek was at substantial risk of serious harm
if he did not receive adequate treatment. Maloney did not,
however, actually draw that [required] inference." Id. at 161.
The court concluded its summary of Kosilek I by writing:
This court's decision [in Kosilek I] puts Maloney on notice that Kosilek has a serious medical need which is not being properly treated. Therefore, he has a duty to respond reasonably to it. The court expects that he will.
In essence, the court expects that Maloney will allow qualified medical professionals to recommend treatment for Kosilek. At a minimum, psychotherapy with, or under the direction of, a professional with training and experience concerning individuals with severe gender identity disorder is required. Such therapy should raise no security concerns.
If hormones or sex reassignment surgery are recommended, Maloney may properly consider whether security issues make it impossible to provide adequate medical care in prison for Kosilek's serious medical need. The court expects that any such consideration will include the following facts.
Kosilek is already living largely as a woman in a medium security male prison. This has not presented a security problem. The policy Maloney adopted contemplates continuing female hormones for transsexuals for whom they have been prescribed prior to incarceration. Maloney expects that he would keep such inmates in the general population of a male prison. This has, evidently, been done safely in several states, in the United States Bureau of Prisons system, and in Canada.
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If Maloney, in good faith, reasonably decides that there is truly no way that he can discharge both his duty to protect safety and his duty to provide Kosilek with adequate medical care, and concludes that security concerns must trump the recommendations of qualified medical professionals, a court will have to decide whether the Eighth Amendment has been violated. That question is not now before this court. If, however, concerns about cost or controversy prompt Maloney to deny Kosilek adequate care for his serious medical need, Maloney will have violated the Eighth Amendment. Kosilek will then likely be entitled to the injunction that he has unsuccessfully sought in this case.
Kosilek I, 221 F. Supp. 2d at 162 (emphasis added).
The court also explained the reasons for its expectation that,
having been educated by the Kosilek I decision, Maloney would
provide proper treatment for Kosilek's serious medical need. The
court anticipated that Maloney would in the future follow the DOC's
usual practice of allowing medical professionals, including experts
retained by UMass, to decide what was necessary to treat Kosilek.
The court relied upon Maloney's testimony that if the doctors for
the DOC who were engaged to provide mental health care to inmates
decided to bring in a specialist to treat Kosilek, he would not
interfere. Maloney asserted that such medical judgments are "what
[he was] paying them for." Id. Maloney claimed he had "never in
[his] career interfered with a doctor's order for treatment and
[had] no intention of doing so in the future," with regard to
Kosilek or anyone else. Id. In 2002, the court relied upon these
representations.
Therefore, the court did not order the DOC to do anything.
Rather, it expected that the DOC would begin to treat Kosilek's
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situation as a medical matter and rely on qualified professionals to decide what care was necessary to adequately address his serious medical needs.
C. The Aftermath of Kosilek I Following the August 28, 2002 decision in Kosilek I, under Maloney the DOC began to respond, equivocally, to the court's ruling. In December, 2002, the DOC replaced its inflexible freezeframe policy for inmates with gender identity disorders with a presumptive policy that would provide inmates hormones if they had been previously prescribed, but allowed increased or decreased treatment if it was determined by UMass to be medically necessary, and approved by both the Director of the Department's Health Services Division and the Commissioner. This policy and procedure is unique. It makes gender identity disorder the only condition that presumptively would not be treated differently as it became more or less severe. In addition, gender identity disorder is the only condition that requires DOC doctors to obtain approval of the Commissioner to provide treatment that they find to be medically necessary. In February, 2003, after consultation with DOC staff, UMass engaged a gender identity disorder specialist, Dr. David Seil, to evaluate Kosilek and make recommendations for his care. Dr. Seil evaluated Kosilek and submitted his report on about February 23, 2003. Dr. Seil, like every other specialist who had evaluated
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Kosilek, found that he suffered from a severe gender identity disorder. He also found that Kosilek was not then suicidal because the hope of getting hormone therapy and sex reassignment surgery was sustaining him. However, Dr. Seil wrote that, "[s]he has made two serious suicide attempts around this issue and an attempted mutilation in the past . . . If transitioning to female is not within her control, she may take control of the situation by ending her own life." Ex. 10 at 4.
Dr. Seil also wrote that the Standards of Care had "been implemented for tens of thousands of individuals with GID7 internationally for decades." Id. He opined that those "Standards of Care need to be observed" in Kosilek's case. Id. He reached this opinion after considering possible security concerns, writing, "[i]n respect to security, Ms. Kosilek already is living as a female within a male environment without threat to herself or others." Id.
Therefore, consistent with the Standards of Care, Dr. Seil recommended that Kosilek be provided estrogen therapy; electrolysis to remove facial hair, which "is a major signifier of male gender"; and access to female clothing and makeup. Id. at 5. With regard to possible sex reassignment surgery, Dr. Seil wrote:
Such surgery is the final step in the treatment of GID. As it is highly traumatic and painful surgery, and is irreversible, evaluation of its necessity must wait until
7Gender identity disorder is often referred to as "GID" in both the medical and legal communities.
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the year of living as a female has occurred. Ms. Kosilek has lived for many years as female, but not with the beneficial effect of hormone therapy and electrolysis. A future assessment needs to be made by an experienced gender specialist with Ms. Kosilek after treatment with hormones for a year as to whether this step definitely need be taken. Id. Dr. Seil's report put the DOC on notice that Kosilek might require sex reassignment surgery after a year of real life experience on hormones and living even more fully as a female in prison. Once again Maloney and his staff, including Deputy Commissioner Dennehy, had received advice they did not like. Just as the DOC in 2000 had terminated Dr. Forstein as its litigation expert after he recommended that Kosilek be treated in accordance with the Standards of Care, it decided not to employ Dr. Seil any longer. In March, 2003, Dr. Kenneth Appelbaum, the Director of Mental Health at UMass, was directed by DOC staff to seek other psychiatrists to evaluate Kosilek and other inmates with gender identity disorders in the future. At the same meeting, the National Commission on Correctional Health Care (the "NCCHC") position that sex reassignment surgery should not be done in prison was discussed with Dr. Appelbaum in what he understood to be an effort to direct him to find a specialist who agreed with this view.8
8On October 18, 2009, the NCCHC revised its Position Statement on "Transgender Health Care in Correctional Settings."
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In addition, after Dr. Seil's report was received, following
established DOC security procedure regarding gender identity
disorder, see Ex. 8, Maloney asked Luis Spencer, the Superintendent
of MCI Norfolk where Kosilek was incarcerated, to prepare a written
report on whether providing Kosilek hormones would create any
security risks. In Kosilek I, Maloney had expressed serious
concerns about security in the prison if Kosilek or any other
inmate were to receive hormones or sex reassignment surgery.
Maloney reasoned that many inmates were sex offenders and was
worried that a prisoner with breasts, living as a female in a male
prison, would create a risk of violence that could injure prison
guards, as well as inmates. He testified that even allowing an
inmate to have make-up could facilitate attempts to escape.
However, on July 29, 2003, Spencer reported to Maloney, in a
memorandum delivered to then Deputy Commissioner Dennehy, that he
had considered the proposal for estrogen therapy. He stated:
It now states that, "[t]he management of medical (e.g. medically necessary hormone treatment) and surgical (e.g. genital reconstruction) transgender issues should follow accepted standards developed by professionals with expertise in transgender health," and cited the Standards of Care. See Kosilek's Mar. 2, 2010 Motion to Supplement the Record at Ex. A. Kosilek moved to have the NCCHC Position Statement made part of the record in this case. See id. The Defendant opposed this request. Kosilek's motion is being denied because the Position Statement is hearsay, and there has been no testimony or crossexamination concerning it. While the court has not relied on the revised Position Statement in making its findings, it is consistent with the conclusions the court has reached based on the evidence that was admitted in this case.
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I have reviewed the possible cause and effect as it relates to the security and operations of MCI Norfolk and do not feel that there are any concerns at this time. However, as these treatments continue and Inmate Kosilek begins to develop physical changes, our security concerns may have to be re-evaluated. Ex. 21. Therefore, Spencer approved providing Kosilek hormones from a security perspective. In August, 2003, Kosilek began taking estrogen hormones. In October, 2003, Kosilek was allowed to begin wearing female undergarments. In addition, Kosilek was scheduled to begin laser removal of his masculine hair. As planned, Spencer monitored the situation to see if Kosilek's increasing feminization raised any security issues. Three years later, by 2006, there had been no reported issues or problems.9 However, in December, 2003, Deputy Commissioner Dennehy became the Acting Commissioner of the DOC. She received the position permanently in March, 2004. Dennehy had been an integral part of the DOC's previous efforts to deny Kosilek treatment for his severe gender identity disorder. She knew that such treatment for prisoners was unpopular with the public and many politicians. Dennehy was determined not to be the first prison official in the United States to authorize sex reassignment surgery for an inmate. Indeed, she testified in the instant case that she would retire rather than obey an order from the Supreme Court to do so.
9Nor have there been any issues or problems resulting from Kosilek's feminization since Kosilek and Spencer testified in 2006.
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Therefore, as described below, Dennehy began taking a series of actions intended to delay, and ultimately deny, the medical care that was being prescribed for Kosilek.
Promptly upon becoming Commissioner, Dennehy told her staff that she wanted to "regroup" on the treatment being provided to prisoners with gender identity disorders. Ex. 47 at 196. Among other things, she ordered a reevaluation of Kosilek "before approving laser hair removal or anything else." Id. at 199. There was no medical reason, or other justification, for the reevaluation concerning the hair removal. The direction was a substantial departure from Dennehy's practice, pursuant to the UMass contract, of playing no role in the treatment of inmates.
In September, 2004, Kosilek had been taking hormones for a year and, under the Standards of Care, was due to be evaluated for possible sex reassignment surgery. Kosilek had not yet been reevaluated for laser hair removal. Under its contract with the DOC, UMass was solely responsible for selecting outside specialists with expertise in medical and mental health matters that the UMass staff did not have. UMass decided to retain doctors at the Fenway Community Health Center of Massachusetts (the "Fenway Clinic"), which is the foremost referral center in New England for individuals with gender identity disorders. However, in view of the Fenway Clinic's reputation, it was foreseeable that Fenway doctors might recommend laser hair removal and sex reassignment surgery for Kosilek. Therefore, Dennehy's representative, Greg
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Hughes, expressed reservations to Dr. Appelbaum of UMass about retaining Fenway. He relented, however, when Dr. Appelbaum explained that he had no other options.
Within a week, however, Dennehy had taken the unprecedented step of having the DOC, on its own, find an expert to potentially evaluate Kosilek and other inmates with gender identity disorder for treatment, rather than relying on UMass to do so. Hughes informed Dr. Appelbaum that the DOC was planning to retain Cynthia Osborne, a Licensed Social Worker, who was assisting Virginia and Wisconsin in litigation brought by transsexual prisoners seeking treatment that those states did not wish to provide. Hughes communicated to Dr. Appelbaum that Osborne was being selected because she was more "sympathetic" to the DOC's opposition to providing sex reassignment surgery and other treatment. See June 1, 2006 Tr. at 93; Ex. 47 at 223.
However, UMass continued to work with the Fenway Clinic, and in the fall of 2004, Drs. Randi Kaufman and Kevin Kapila of the Fenway Clinic began their evaluation of Kosilek for possible sex reassignment surgery. Drs. Kaufman and Kapila are specialists on gender identity disorders, and have treated many individuals with that mental illness. Dr. Appelbaum correctly characterized them as "well trained, credentialed . . . [and] very knowledgeable." June 1, 2006 Tr. at 88.
On February 24, 2005, the Fenway doctors issued a report on their evaluation of Kosilek. See Ex. 25 (the "Fenway Report").
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Applying the Standards of Care, Drs. Kaufman and Kapila found that Kosilek had demonstrated his ability to live as a female in a male prison while taking prescribed hormones. Despite the hormones, however, they found that continued to be "quite distressed" about his male anatomy. Id. at 5-6. The doctors opined that "[g]iven her previous suicide attempts, her ongoing distress, and the lack of other goals in her life, it is quite likely that Michelle will attempt suicide again if she is not able to change her anatomy." Id. at 5. Therefore, Drs. Kaufman and Kapila stated that it was their "recommendation . . . that Michelle be able to have sex reassignment surgery." Id. at 6.
Dennehy and her staff received the Fenway Report from UMass and read it shortly after it was issued. The court finds that Dennehy understood, from the report, that Kosilek was still suffering from a severe gender identity disorder, that the experts retained to advise the DOC were recommending sex reassignment surgery, and that there was a significant risk that Kosilek would try to kill himself if his hope of getting that surgery was lost.
On April 12, 2005, the DOC retained Osborne to complete a peer review of the Fenway Report. Osborne was then on the faculty of the John Hopkins School of Medicine, whose Psychiatry Department had long been led by Dr. Paul McHugh. Dr. McHugh was well-known for his strongly held view that sex reassignment surgery is "religiously abhorrent." Dec. 19, 2006 Tr. at 162. Indeed, Dr. McHugh was an advisor to the Vatican and had urged it to condemn
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sex reassignment surgery. June 8, 2006 Tr. at 165. The John Hopkins psychiatric department was substantially influenced by Dr. McHugh's views.
Prior to being hired by the DOC in April, 2005, Osborne had opined that an inmate could not have the real life experience required by the Standards of Care to be eligible for sex reassignment surgery and, in any event, such surgery was rarely medically necessary. After the Virginia Department of Corrections retained Osborne and terminated hormone therapy for a transsexual inmate named Ophelia De'lonta, De'lonta mutilated his genitals and Osborne was replaced by Dr. Brown. See De'Lonta, 330 F.3d at 632; May 30, 2006 Tr. at 102; May 31, 2006 Tr. at 15; June 8, 2006 Tr. at 161-62. After Osborne advised the Wisconsin Department of Corrections that sex reassignment surgery was not necessary for an inmate named Donna Dawn Konitzer, Konitzer castrated himself. See June 8, 2006 Tr. at 163.
Dennehy testified that Osborne's opposition to providing sex reassignment surgery to prisoners was not a factor in her selection. This court finds that this contention is not credible or correct. Rather, the court concludes that Osborne's known positions and foreseeable advice that Kosilek should not be provided sex reassignment surgery were precisely the reasons that Dennehy decided to hire her.
As Dennehy's hiring of Osborne indicates, Dennehy remained determined to delay and defeat Kosilek's effort to get the surgery
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that had been prescribed. Among other things, she falsely claimed that she did not know whether the Fenway Clinic doctors viewed sex reassignment surgery as medically necessary.
On April 15, 2005, in a status report to the court, UMass referenced the Fenway Report's recommendation that Kosilek receive sex reassignment surgery and stated that UMass, Dr. Arthur Brewer, and Dr. Appelbaum "are presently unaware of any known medical or mental health contraindication to providing sex reassignment surgery to [Kosilek], although they are also unaware of any other case in which an inmate has undergone sex reassignment surgery while incarcerated." Ex. 23 at 2. Nevertheless, Dennehy pretended that she did not understand whether UMass was recommending sex reassignment surgery for Kosilek.
In successive responses to inquiries prompted by Dennehy, UMass confirmed and clarified that it was indeed recommending sex reassignment surgery for Kosilek. On May 10, 2005, UMass wrote that, "[w]e have consistently indicated . . . that we defer to the Fenway staff regarding the propriety of sexual reassignment surgery in the case of Michelle Kosilek." Ex. 15 at 2. However, on May 25, 2005, the DOC again asked UMass for its recommendation. Ex. 18. UMass responded on June 14, 2005, that "[b]ased on the opinions of Dr. Kapila and Dr. Kaufman, and notwithstanding the report of Dr. Osborne, we would again suggest that solely from a clinical perspective it appears that sex reassignment surgery should be offered to Michelle Kosilek." Ex. 16 at 3.
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On September 1, 2005, in response to letters from Peter Heffernan, Acting Director of the DOC's Health Services Division, regarding the treatment of Kosilek and other inmates with gender identity disorder, Drs. Brown and Appelbaum wrote to the DOC that, "[f]rom what we have been told by Dr. Kapila and Dr. Kaufman, it is our understanding that further delay in providing the recommended treatment likely will result in continued or increased levels of distress for each afflicted individual, with the possibility of self-inflicted injury. To that extent, we also view the treatment recommendations as medically necessary." Ex. 42 at 3.
Dennehy was fully informed of the communications from UMass and understood that the DOC's doctors were recommending sex reassignment surgery as the only adequate treatment for Kosilek's condition. For example, on November 23, 2005, she wrote the Director of the United States Bureau of Prisons that, "[o]ur medical providers[,] the Commonwealth's medical school, is supporting their consultant's recommendation for the surgery !!!!!!." Ex. 88; June 20, 2006 Tr. at 39. Nevertheless, eight months later at trial in June, 2006, Dennehy testified that she was still "awaiting clear recommendations and directions from UMass. Medical." June 19, 2006 Tr. at 88-89.
The court finds, however, that Dennehy at all relevant times knew that the DOC's doctors viewed sex reassignment surgery as the only adequate treatment for Kosilek's severe gender identity disorder and, therefore, were recommending it. She also knew that
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Kosilek was suffering mental anguish as a result of his severe gender identity disorder, and that he was at high risk of attempting again to kill himself if not given sex reassignment surgery. However, she remained determined not to be the first corrections official to authorize such treatment, which she believed would be unpopular with elected officials, the media and the public. Therefore, she continued, and indeed intensified, her effort to resist, delay, and interfere with the DOC's doctors' prescription for providing Kosilek what she understood was the only adequate, and therefore the essential, medical care for his condition.
In the spring of 2005, during the period in which Dennehy falsely claimed that she did not understand whether UMass was recommending sex reassignment surgery for Kosilek as the only adequate treatment, Dennehy selectively gave interviews to some members of the media in an effort to demonstrate that she was responsive to the political and public opposition to using tax revenues to provide a prisoner sex reassignment surgery. Dennehy denied a request from an independent producer to do a documentary on inmates with gender identity disorder because the "matter was in litigation." June 19, 2006 Tr. at 79-80; Ex. 85. At the same time, however, she provided wide access to DOC facilities and inmates, and an interview, to the Channel 4 "Eyewitness News Team," so it could do a news piece that she knew would be hostile to providing treatment to inmates suffering from gender identity disorders.
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On May 16, 2005, Dennehy was interviewed for the Channel 4 piece, which was broadcast on May 25, 2005. The piece reported that the DOC would, later that week, inform the court of the security concerns posed by providing sex reassignment surgery to Kosilek. Although Dennehy made only brief remarks in the Channel 4 piece, she coordinated her comments to Channel 4 with a State Senator, who lived in the same town as Dennehy and called her on her cell phone to discuss the television piece. The piece reported that, prompted by Kosilek's case, the Senator was sponsoring proposed legislation to prohibit the use of tax revenues to provide sex reassignment surgery for prisoners in Massachusetts. June 19, 2006 Tr. at 64; Ex. 64. It featured the Senator as saying: "I think it's unconscionable that the Commonwealth of Massachusetts . . . would have to pay for any type of elective sex change operations for any prisoners." Ex. 64. The head of Citizens for Limited Taxation echoed this theme, stating: "I can't even imagine seriously considering this. Never mind doing this. Never mind paying for it." Id. The piece reported that "[s]ex changes for all [12 prisoners diagnosed with gender identity disorder] would cost [taxpayers] at least a quarter of a million dollars." Id.
The Channel 4 piece ended by reporting that: Later this week, the state will tell the federal court that sex surgery for Michelle Kosilek would result in a security nightmare. When that happens, expect Kosilek to pursue her lawsuit. Then a federal judge will eventually decide whether you will pay the bill for Kosilek's operation and beyond that, sex surgeries for other convicts serving time for horrendous crimes.
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Id. The Channel 4 piece made it clear that Dennehy opposed the
provision of sex reassignment surgery to Kosilek on the basis of purported security concerns. However, when the piece was recorded on May 16, 2005, Dennehy had not conducted the security review included in the DOC's written procedures for making decisions concerning prisoners with gender identity disorders. Nor had she had any discussion about security concerns with key DOC personnel, including Spencer, the Superintendent of MCI Norfolk where Kosilek was incarcerated.10 According to the DOC's established procedures, if UMass prescribed treatment for a prisoner's gender identity disorder, the Superintendent of the facility in which the inmate was incarcerated was to be asked to assess the impact such treatment would have on security and make a written recommendation to the Commissioner on whether the treatment should be allowed. See Ex. 8. Spencer understood that this was the standard operating procedure with regard to Kosilek and anyone else similarly situated. Dennehy also knew that this was the DOC's standard decision-making process with regard to inmates with gender identity disorders. She testified that having Superintendents complete such
10As described below, Dennehy's position that insurmountable security concerns precluded providing Kosilek with sex reassignment surgery was also not based on the advice of any experts. The officials who provided expert testimony for the defendant at trial, one from the DOC and one from the Bureau of Prisons, were not retained until six months after Dennehy announced her position.
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security assessments was valuable because the Superintendents had the security background and familiarity with their respective institutions to make informed, accurate judgements.
As described earlier, although Commissioner Maloney had testified in Kosilek I that it would be too dangerous to provide female hormones to Kosilek, following the court's decision in that case Maloney asked Spencer to conduct a security assessment in accordance with the DOC's established procedure. Spencer did so and determined that the provision of hormones to Kosilek would not create any security concerns. That prediction proved to be correct. Although Spencer was aware in 2005 that the DOC doctors had recommended sex reassignment surgery for Kosilek, he was not asked to provide Dennehy with the written security assessment and recommendation that established procedure included.
Rather, only after indicating to Channel 4 on May 16, 2005, that she would deny sex reassignment surgery for Kosilek because of purported security considerations did Dennehy meet for the first time with her lawyers, Spencer, and Lynn Bissonette, the Superintendent of the woman's prison, MCI Framingham, on May 19, 2005, to discuss security matters in preparation for a report to the court that was then due on May 27, 2005.11 At the time of this
11In deciding that Dennehy met with Spencer and Bissonette to discuss the security implications of sex reassignment surgery for Kosilek for the first time on May 19, 2005, the court credits her deposition testimony and does not find to be believable her testimony that the first such meeting occurred on September 14 or 19, 2004.
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meeting, Dennehy had not received any written materials from either Spencer or Bissonette concerning any possible security concerns.
Following the May 19, 2005 meeting, trial counsel for the DOC drafted a report concerning the security implications of sex reassignment surgery for Kosilek, which was reviewed by Dennehy a day or two before being filed on June 14, 2005. June 19, 2005 Tr. at 63. The report described a series of purported security concerns and concluded that it was necessary for the Commissioner to deny Kosilek sex reassignment surgery because the DOC would be unable to protect his safety if the surgery was performed. However, as explained below, Dennehy's stated security concerns were largely false and, in any event, were not her real reason for denying the surgery. Rather, the real reason was to avoid public and political criticism that providing the prescribed treatment would foreseeably provoke.
In the fall of 2005, the DOC had already engaged Osborne to prepare a peer review of the Fenway Report, and decided to retain her as a medical expert at trial. In addition, based on her recommendation, the DOC also retained Dr. Schmidt, a psychiatrist at the Johns Hopkins University School of Medicine, to serve as a medical expert.
The court-ordered deadline for disclosure of experts and their opinions was December 2, 2005. On November 23, 2005 Dennehy contacted Harley Lappin, the Director of the United States Bureau of Prisons, looking for trial experts. Dennehy clearly
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communicated to Lappin her opposition to providing Kosilek sex reassignment surgery. The DOC subsequently retained Robert Dumond of the DOC and Arthur Beeler of the Bureau of Prisons as litigation experts on security issues. Each opined that insurmountable security problems would make it impossible to protect Kosilek's safety if he were provided sex reassignment surgery. However, Beeler formed his opinion before visiting any DOC facility or learning anything specific to Kosilek. In addition, although Dumond testified as to the risks of sexual assault and violence to transsexuals in prison and to Kosilek specifically, he failed to consider Kosilek's history of living safely as a woman at MCI Norfolk in forming his opinion.
In February, 2006, Dr. Loren Schechter, a Chicago surgeon with substantial experience in performing sex reassignment surgery who was found by Kosilek's lawyers, testified in a deposition that he would be willing to evaluate Kosilek, and if appropriate, perform sex reassignment surgery on Kosilek in Massachusetts. Schechter is not licensed to practice in Massachusetts, but could perform the surgery in the state if he receives a sponsorship to do so.
D. The Trial of Kosilek II As the trial began in the spring of 2006, the Lieutenant Governor of the Commonwealth of Massachusetts publicly stated her opposition to using tax revenues to fund sex reassignment surgery for a prisoner. Dennehy, who served under the Governor and
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Lieutenant Governor, was well aware of the Lieutenant Governor's
position.
The media also continued to oppose sex reassignment surgery
for Kosilek. For example, a June 11, 2006 The Boston Globe column
began:
The [Kosilek] trial underway in federal court in Boston is not about the rights of transsexuals. It's about the manipulations of a murderer.
Ex. 95, "Eileen McNamara, "When gender isn't relevant," The Boston
Globe, June 11, 2006. Soon after, The Boston Globe opined in an
editorial that:
Kosilek's case is not compelling for reasons even beyond the obvious distastefulness of a wife killer angling to serve out his sentence of life without parole in a women's prison. Private insurers rarely pay for sexchange operations . . . . Kosilek, like any inmate, deserves proper mental health care, including hormone treatment and expert therapy. If he is at risk of suicide, he should be placed under constant observation. But that's sufficient.
Ex. 94, "Set limits on sex change," The Boston Globe (June 15,
2006). Dennehy was aware of these statements, and the wide-spread
public hostility to providing sex reassignment surgery for
prisoners that they expressed as well.
Because Kosilek is seeking only injunctive relief, his case
must be decided by a judge alone, rather than by a jury. The trial
of Kosilek II before this court began on May 30, 2006.
Several doctors testified at trial. Each one opined that
Kosilek has a gender identity disorder. Dr. Brown, a specialist in
gender identity disorders who was on the board of directors of the
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Harry Benjamin International Gender Dysphoria Association at the time of the trial, testified for Kosilek. Dr. Brown estimated that, at the time of trial, he had treated or evaluated over 1,000 patients with gender identity disorders. He had then authored or co-authored 25 peer-reviewed articles and fourteen book chapters on gender identity disorder. After reviewing Kosilek's medical records, conducting a clinical interview with Kosilek, and speaking with Kosilek's treating mental health professional at MCI Norfolk, Burrowes, Dr. Brown diagnosed Kosilek with "chronic and severe" gender identity disorder. May 30, 2006 Tr. at 94.
Dr. Kaufman, a psychotherapist at the Fenway Clinic from 1999 to July 2005, who specializes in therapy with transsexual patients, also testified for Kosilek. At the Fenway Clinic, Dr. Kaufman served as the co-chair of the Transgender Clinical Team from 1999 to 2003, and the coordinator of the transsexual health program. See Ex. 56. Dr. Kaufman estimated that, at the time of trial, she had evaluated and treated about 300 patients for gender identity disorder. After reviewing Kosilek's medical record, speaking with Burrowes, and conducting an in-person evaluation with Kosilek, Dr. Kaufman also diagnosed Kosilek with severe gender identity disorder.
Osborne, a social worker and assistant professor at Johns Hopkins School of Medicine, testified for the defendant, and agreed that Kosilek has a severe gender identity disorder. June 8, 2006 Tr. at 186. Dr. Schmidt, Director of Psychiatry at Johns Hopkins
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Bayview Medical Center, a satellite facility of the Johns Hopkins School of Medicine, also testified for the defendant. At the time of the trial, Dr. Schmidt was the medical director of the managed care group known as Johns Hopkins Health Care, and was an associate director at the Center for Sexual Health and Medicine at Johns Hopkins School of Medicine. His recent professional focus was then on "Coding Procedural Technology," a technical script used by psychiatrists to communicate with third-party providers, such as managed care companies, for the purposes of billing services. Dr. Schmidt also diagnosed Kosilek with gender identity disorder, though he stopped short of characterizing it as severe.
Kosilek testified regarding his gender identity disorder and the extreme mental anguish and emotional distress it causes him. He testified that he would not want to continue living if he were denied sex reassignment surgery. As indicated earlier, Drs. Kaufman and Kapila, in their evaluation of Kosilek, reported that, despite receiving hormones, Kosilek "continues to feel quite distressed, both with having male genitalia, as well as not having female genitalia." Ex. 25 at 5. They opined that "[g]iven her previous suicide attempts, her ongoing distress, and the lack of other goals in her life, it is quite likely that Michelle will attempt suicide again if she is not able to change her anatomy." Id. Burrowes testified that, even after taking hormones, Kosilek continued to be "distressed" and "disgusted" by his male genitalia. June 7, 2006 Tr. at 115.
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Several of the doctors testified that the Standards of Care are the generally accepted, widely-used treatment standards for gender identity disorder. In accordance with the Standards of Care, many of the doctors testified that sex reassignment surgery is medically necessary and the only adequate treatment for Kosilek's gender identity disorder. The Fenway clinicians, Drs. Kaufman and Kapila, had written that "[g]iven her continued psychological distress, despite the treatment she has already had for GID in making a social and hormonal transition, sex reassignment surgery is the only treatment at this point that would ameliorate Kosilek's continued gender dysphoria." Ex. 53 at 159. Dr. Kaufman testified that, even though Kosilek had received hormones and hair removal and was dressing like a woman, "she still shows a level of dysphoria that really can't be treated in any other way but surgery." June 5, 2006 Tr. at 104. Dr. Kaufman also testified that if Kosilek does not receive sex reassignment surgery, "she would be at great risk for committing suicide." Id. at 104-05. Dr. Brown opined that sex reassignment surgery, together with hormones and psychotherapy, is necessary to provide Kosilek with "minimally adequate medical care." May 31, 2006 Tr. at 13. Dr. Brown testified that he could say, to a reasonable degree of medical certainty, that there is a substantial risk of serious harm to Kosilek if he does not receive sex reassignment surgery. Finding the opinions of Drs. Kaufman and Kapila to be reliable, Dr. Appelbaum of UMass concluded that sex reassignment surgery "is not
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only clinically appropriate and should be offered to Miss Kosilek, but . . . it is medically necessary." Oct. 3, 2006 Tr. at 36.
On the other hand, Dr. Schmidt, who as described below does not follow the Standards of Care, testified that sex reassignment surgery was not medically necessary for Kosilek. Dr. Schmidt opined that if Kosilek were denied sex reassignment surgery and became depressed, his depression and distress could be treated with antidepressants and psychotherapy, and that this would alleviate his distress to a point at which he was no longer at substantial risk of serious harm. However, Dr. Schmidt also acknowledged that Kosilek's distress will probably intensify and become severe if he is denied sex reassignment surgery. Osborne also testified that sex reassignment surgery was not medically necessary for Kosilek, in part because she believed that it was not possible to have the "real life experience" required by the Standards of Care in prison.
After hearing this evidence, the court instructed Dennehy to review the medical evidence and consider further whether the DOC would permit the sex reassignment surgery that UMass had prescribed for Kosilek. Dennehy did not, however, revise her position. The court also instructed Dr. Appelbaum to review Dr. Schmidt's testimony and inform the court of his opinion concerning whether Dr. Schmidt's recommendations were within prudent professional standards. After consulting Drs. Kaufman and Kapila, in whom he continued to have confidence, Dr. Appelbaum concluded that "[t]he
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recommendations of Dr. Schmidt do not meet prudent professional standards." Ex. 90 at 6-7.
In a further effort to ascertain whether Dr. Schmidt's treatment recommendations were within prudent professional standards, the court, pursuant to Federal Rule of Evidence 706, appointed Dr. Stephen Levine as an expert witness. Dr. Levine is a psychiatrist and co-director at the Center for Marital and Sexual Health in Cleveland, Ohio. Dr. Levine was the chairman of the Harry Benjamin International Gender Dysphoria Association committee for the fifth version of the Standards of Care. At the time of trial, Dr. Levine testified that he had evaluated about 325 to 400 individuals with gender identity disorders and had recommended sex reassignment surgery for approximately 24 of them.
In his initial report to the court, Dr. Levine stated that, "[i]t is my opinion that Dr. Schmidt's view, however unpopular and uncompassionate in the eyes of some experts in GID, is within prudent professional standards." Ex. 98 at 18. However, when he testified, Dr. Levine clarified this statement and testified that, in his view, Dr. Schmidt's recommendations would be a professionally prudent response to Kosilek's condition only if, for some reason such as cost or the fact that Kosilek was incarcerated, sex reassignment surgery was not an option. See Dec. 19, 2006 Tr. at 190-91, 200-01. Despite instructions by the court to the contrary, see Oct. 31, 2006 Order, in formulating his initial report Dr. Levine had assumed Kosilek had not had the real life
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experience required by the Standards of Care and that Kosilek could not afford to pay for sex reassignment surgery. Id. at 179-80, 189-91. Eliminating these considerations and any security concerns, Dr. Levine opined that a prudent professional would not deny Kosilek sex reassignment surgery. Id. at 179, 190.
Dennehy also testified during the trial, after reviewing the medical testimony pursuant to the court's order. Although she initially testified that it was not clear to her that UMass was recommending sex reassignment surgery as medically necessary, she eventually, and credibly, testified that she understood that UMass had found that Kosilek had a serious medical need and required sex reassignment surgery. See Oct. 18, 2006 Tr. at 11-18. At that point, Dennehy also testified that, because she had no clinical background, she was not in a position to question the DOC's doctors' evaluation of Kosilek's condition and recommendation concerning what was necessary to treat it properly. In essence, she understood that Kosilek was at significant risk of suffering serious harm if he did not receive sex reassignment surgery. Id. at 11.
Dennehy further testified that she was not influenced by cost or controversy, and only safety and security concerns were preventing her from allowing Kosilek to receive sex reassignment surgery. Id. at 17-18; June 19, 2006 Tr. at 45-46. Specifically, Dennehy claimed to be concerned about safety and security both during and after the surgery, with regard to the risk of escape and
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whether Kosilek would either pose a danger to or be at risk of assault from other inmates after surgery at either a male or female prison. Id. at 21. Dennehy also testified that she would retire rather than obey a Supreme Court order requiring her to provide sex reassignment surgery to Kosilek. June 20, 2006 Tr. at 117.
With regard to security, defendant provided two expert witnesses: Dumond, director of the Research and Planning Division at the DOC, and Beeler, Warden of the Federal Medical Center in Butner, North Carolina. Both testified as to the general risks of violence and sexual assault facing transsexuals in prison. Although Dumond provided some testimony about Kosilek, he failed to consider his history of living safely as a woman at MCI Norfolk when forming his opinion. In addition, Beeler was not permitted to testify as to Kosilek's specific situation because he was not sufficiently informed about the facts concerning Kosilek to be qualified to express an opinion concerning any risk to, or posed by, Kosilek particularly. See Fed. R. Evid. 702.
Susan Martin, Director of the Health Services Division of the DOC until July 2005, and Greg Hughes, the Regional Director of Mental Health for the DOC until July 2005, also testified regarding the DOC's decision-making process on the provision of treatment to Kosilek.
Dennehy resigned on April 30, 2007, and was replaced by Acting Commissioner James R. Bender, who did not testify. Harold W. Clarke became Commissioner on November 26, 2007. The court
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directed Clarke to consider some of the evidence presented at trial and decide whether he would permit Kosilek to have the sex reassignment surgery that had been prescribed. Clarke submitted a report on May 7, 2008, stating that, like Dennehy, he did not profess to have any clinical expertise regarding the appropriate treatment for Kosilek. Also like Dennehy, he claimed that he was not influenced by cost or controversy. Rather, he stated that "the safety and security concerns presented by the prospect of undertaking sex reassignment surgery for Michelle Kosilek [we]re insurmountable" and precluded the provision of sex reassignment surgery. Ex. 107 at 1. He subsequently testified and reiterated these views. As a result, the testimony at trial did not conclude until May, 2008.
The court has not taken any testimony since then. As described earlier, see fn. 2, supra, the parties have agreed that there have been no material changes in the facts since the testimony was completed and that the court should decide this case without hearing any additional testimony. However, to address more recent judicial decisions and developments, further arguments were heard in 2009 and 2011.
In May, 2011, Luis Spencer, the former Superintendent of MCI Norfolk, became Commissioner of the DOC, and was substituted as the defendant.
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E. The Eighth Amendment Analysis As stated earlier, in order to prevail in this case, Kosilek must prove that: (1) he has a serious medical need; (2) sex reassignment surgery is the only adequate treatment for it; (3) the defendant knows that Kosilek is at high risk of serious harm if he does not receive sex reassignment surgery; (4) the defendant has not denied that treatment because of good faith, reasonable security concerns or for any other legitimate penological purpose; and (5) the defendant's unconstitutional conduct will continue in the future.
1. Kosilek has a Serious Medical Need The credible evidence at trial has proven that there is a substantial risk that Kosilek will suffer serious harm if his continuing severe gender identity disorder is not adequately treated and, therefore, that he now has a serious medical need. See Farmer, 511 U.S. at 828, 835-47. Kosilek has been functioning better since being provided female hormones and retaining the hope of receiving sex reassignment surgery. However, he continues to suffer intense mental anguish because of his belief that he is a female trapped in a male body. As indicated earlier, Kosilek testified that he will kill himself if the hope of getting sex reassignment surgery as a result of the instant case is lost. This is a credible threat, resulting from genuine mental anguish, rather than a calculated effort to manipulate prison officials or deceive the court.
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The court concludes Kosilek has a serious medical need. The reasons for this conclusion include the following. As described earlier, a serious medical need may be mental as well as physical. See Torraco, 923 F.2d at 234; Clark-Murphy, 439 F.3d at 292; Steele, 87 F.3d at 1269. A serious medical need is, among other things, one "'that has been diagnosed by a physician as mandating treatment.'" Mahan, 64 F.3d at 18 (quoting Gaudreault, 923 F.2d at 208); see also Brock, 315 F.3d at 162.
As also described earlier, the medical community and the courts have recognized that a gender identity disorder can cause intense mental anguish and require further treatment for some individuals who are already receiving psychotherapy and hormones. See, e.g., Fields, 653 F.3d at 559; O'Donnabhain, 134 T.C. at 38-40. Severe gender identity disorder, when not adequately treated, may lead to self-mutilation and suicide.
The highly qualified doctors employed and retained by the DOC have diagnosed Kosilek as having such a condition. Their diagnosis is supported by the credible testimony of Drs. Brown and Forstein. The court is persuaded that Kosilek is now suffering a degree of mental anguish that itself constitutes a serious harm that requires adequate treatment. See Farmer, 511 U.S. at 828, 835-47; McGuckin, 974 F.2d at 1059. The court also finds that Kosilek's severe emotional distress will intensify if he loses the hope of receiving sex reassignment surgery. The genuine high risk that he will again
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try to kill himself if denied sex reassignment surgery indicates the
intensity of his mental anguish.
The finding that Kosilek's severe gender identity disorder is
a serious medical need is consistent with the conclusions regularly
reached in comparable cases. As the Tax Court wrote in 2010:
Seven of the U.S. Courts of Appeals that have considered the question have concluded that severe GID or transexualism constitutes a "serious medical need" for purposes of the Eighth Amendment. See De'Lonta [], 330 F.3d [at] 634 []; Allard[], 9 Fed. Appx. [at] 794 []; Cuoco v. Moritsugu, [222 F.3d 99, 106 (2d Cir. 2000)]; Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995); Phillips v. Mich. Dept. Of Corr., 932 F.2d 969 (6th Cir. 1991), affg. 731 F. Supp. 792 (W.D. Mich. 1990); White[], [849 F.2d at 325]; Meriwether v. Faulkner, 821 F.2d 408, 411-413 (7th Cir. 1987); see also Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997) (describing gender dysphoria as a "profound psychiatric disorder"). No U.S. Court of Appeals has held otherwise.
O'Donnahbain, 134 T.C. at 62 (footnote omitted). Since the Tax
Court's decision, the First Circuit has also found severe gender
identity disorder to be a serious medical need in the context of a
civil commitment. See Battista, 645 F.3d at 452. Other courts have
reached comparable conclusions. See Soneeya, 2012 WL 1057625, at
*12; Fields, 653 F.3d at 555; Norwood v. Tobiasz, No. CIV.A.11-507,
2012 WL 506580, at *4 (E.D. Wis. Feb. 15, 2012) (slip copy);
Norington v. Daniels, No. CIV.A.11-282, 2011 WL 5101943, at *2 (N.D.
Ind. Oct. 25, 2011); Adams v. Federal Bureau of Prisons, 716 F.
Supp. 2d 107, 112 (D. Mass. 2010); Konitzer v. Frank, 711 F. Supp.
2d 874, 905 (E.D. Wis. 2010); Briones v. Grannis, No. CIV.A.09-
08074, 2010 WL 3636139, at *5 (C.D. Cal. Sept. 14, 2010); Barnhill
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v. Cheery, No. CIV.A.06-922-T-23TGW, 2008 WL 759322, at *11 (M.D. Fla. Mar. 20, 2008); Sundstrom v. Frank, 630 F. Supp. 2d 974, 983 (E.D. Wis. 2007); Gammett v. Idaho State Bd. Of Corr., No. CIV.A.05257, 2007 WL 2186896, at *3 (D. Idaho Jul. 27, 2007); Brooks v. Berg, 289 F. Supp. 2d 286, 287 (N.D.N.Y. 2003); Barrett v. Coplan, 292 F. Supp. 2d 281, 286 (D.N.H. 2003). These decisions "reflect a clear consensus that GID constitutes a medical condition of sufficient seriousness that it triggers the Eighth Amendment requirement that prison officials not ignore or disregard it." O'Donnabhain, 134 T.C. at 63 (footnote omitted).
2. Sex Reassignment Surgery is the Only Adequate Treatment for Kosilek's Serious Medical Need
As described earlier, Kosilek is entitled to adequate care for his serious medical need, but not to ideal care or to the care of his choice. See DeCologero, 821 F.2d at 42; DesRosiers, 949 F.2d at 18. Therefore, it is necessary to decide whether the DOC has offered an adequate alternative to the sex reassignment surgery Kosilek is seeking and the DOC's doctors have prescribed.
As also explained earlier, "adequate services" are "services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." DeCologero, 821 F.2d at 43. Such services are "the product of sound medical judgment." Chance, 143 F.3d at 703. Absent legitimate countervailing penological considerations, adequate medical care requires addressing the causes of a prisoner's serious medical need
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rather than merely providing treatment to reduce the pain it causes.
See Fields, 653 F.3d at 556; West, 571 F.2d at 162; Sulton, 265 F.
Supp. 2d at 300; Wolfe, 130 F. Supp. 2d at 653. Adequate medical
care also requires an individualized assessment of a patient's
medical needs. See Roe, 631 F.3d at 862-63; Soneeya, 2012 WL
1057625, at *10; Kosilek I, 221 F. Supp. 2d at 193.
As this court wrote in Kosilek I, "reference to established
professional standards is important to determining the adequacy of
medical care." 221 F. Supp. 2d at 180. In Kosilek I, the court
found that the Standards of Care "describe the generally accepted
treatment for individuals with gender identity disorders in the
community." Id. at 166. The credible evidence in the instant case
demonstrates that the Standards of Care continue to describe the
quality of care acceptable to prudent professionals who treat
individuals suffering from gender identity disorders.
This conclusion has subsequently been confirmed in other cases.
For example, the Seventh Circuit recently characterized these
standards as "[t]he accepted standards of care." Fields, 653 F.3d
at 553. In addition, in 2010 the Tax Court concluded that:
The Benjamin standards are widely accepted in the psychiatric profession, as evidenced by the recognition of the standards' triadic therapy sequence as the appropriate treatment for GID and transexualism in numerous psychiatric and medical reference texts. Indeed, every psychiatric reference text that has been established as authoritative in this case endorses sex reassignment surgery as a treatment for GID in appropriate circumstances. No psychiatric reference text has been brought to the Court's attention that fails to
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list, or rejects, the triadic sequence or sex reassignment surgery as the accepted regimen for GID.
O'Donnabhain, 134 T.C. at 65-67; see also Alexander v. Weiner, 841
F. Supp. 2d 486, 488-89 (D. Mass. 2012); Battista v. Dennehy, No.
CIV.A.05-11456, 2006 WL 1581528, at *10 n.18 (D. Mass. Mar. 22,
2006); Barrett, 292 F. Supp. 2d at 286; Hare v. Dep't of Human
Servs., 666 N.W.2d 427, 429 n.1 (Minn. Ct. App. 2003).
The Standards of Care "triadic sequence is comprised of: (1)
hormone therapy; (2) a real-life experience of living as a member
of the opposite sex; and (3) sex reassignment surgery." Kosilek I,
221 F. Supp. 2d at 166. Although the Standards of Care have been
revised somewhat since Kosilek I was decided in 2002, the
prerequisites for complete sex reassignment surgery remain the
same.12 See Ex. 9; Alexander, 841 F. Supp. 2d at 488-89.
12In September, 2011, WPATH published the Seventh Version of the Standards of Care. See WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, 7th Version, http://www.wpath.org/documents/SOC V7 03-1712.pdf.
Kosilek requested that the court take judicial notice of the Seventh Version of the Standards of Care. See Kosilek's Oct. 4, 2011 Response to Defendant's Memorandum of Law in Response to Court's August 18, 2011 Order. However, it is not appropriate for the court to do so because the Standards of Care do not qualify as facts not subject to reasonable dispute. See Fed. R. Evid. 201. Rather, the testimony in the instant case demonstrated that the parties disputed various facts in the Sixth Version of the Standards of Care. Because there was no testimony or opportunity for cross-examination regarding the Seventh Version of the Standards of Care, the court has not considered it in making its findings. However, the court notes that the Seventh Version continues to require hormones and a one-year real life experience as prerequisites for the complete sex reassignment surgery Kosilek seeks.
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The Standards of Care recognize that, "[m]any adults with
gender identity disorder find comfortable, effective ways of living
that do not involve all of the components of the triadic sequence."
Ex. 9 at 11. Therefore, "[n]ot all persons with gender identity
disorders need or want all these elements of triadic therapy." Id.
at 3. For some, taking cross-sex hormones may be sufficient. Id.
at 14. If they are not, the Standards of Care provide for a "real
life experience" in which a male suffering from a gender identity
disorder must live for a year as a woman to test his determination
and ability to do so. Id. at 17-18.
The credible evidence in the instant case confirmed the
conclusion in Kosilek I that a person can have a "real life experience" in prison.13 For someone like Kosilek who is serving a
sentence of life without the possibility of parole, prison is, and
always will be, his real life. See 221 F. Supp. 2d at 167.
The Standards of Care address the third possible stage of the
treatment of gender identity disorder, surgery. They state:
13The Seventh Version of the Standards of Care states that the Standards of Care in their entirety "apply to all transsexual, transgender, and gender nonconforming people, irrespective of their housing situation," and that "[h]ealth care for transsexual, transgender, and gender nonconforming people living in an institutional environment should mirror that which would be available to them if they were living in a noninstitutional setting within the same community." Standards of Care, Seventh Version at 67. Although the court did not consider the Seventh Version of the Standards of Care in reaching its conclusions, it is consistent with the court's finding that a transsexual prisoner can have the required real life experience in prison.
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Sex Reassignment is Effective and Medically Indicated in Severe GID. In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not "experimental," "investigational," "elective," "cosmetic," or optional in any meaningful sense. It constitutes very effective and appropriate treatment for transsexualism or profound GID.
Ex. 9. at 18.
As indicated earlier, Drs. Brown, Kaufman, and Forstein, who
each specialize in treating individuals with gender identity
disorders, all testified that sex reassignment surgery is medically
necessary for some individuals suffering from severe gender identity
disorders. By contrast, Dr. Schmidt testified that he disagreed
with the Standards of Care to the extent they provided that sex
reassignment surgery is medically necessary for some transsexuals.14
The court finds the views of Drs. Brown, Kaufman, and Forstein to
be persuasive on the issue of whether such surgery is ever medically
necessary. As previously described, the Standards of Care are
accepted by prudent professionals in the community and provide that
14Osborne also testified in a manner consistent with Dr. Schmidt, her colleague at Johns Hopkins. As she is a social worker rather than a medical doctor, there is a question concerning whether she should be regarded as among those eligible to be found a prudent professional for the purpose of diagnosing what is medically necessary and prescribing treatment for Kosilek. However, the court's assessment and analysis of Dr. Schmidt's testimony is equally applicable to Osborne. Therefore, while the court has fully considered Osborne's testimony, it is not discussing it separately.
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sex reassignment surgery is medically necessary for some individuals.
All of the doctors who testified at trial, except for Dr. Schmidt, provided evidence that sex reassignment surgery for Kosilek is both medically necessary and the only adequate treatment for his severe gender identity disorder. For example, the Fenway clinicians, Drs. Kaufman and Kapila, wrote that "[g]iven her continued psychological distress, despite the treatment she has already had for GID in making a social and hormonal transition, sex reassignment surgery is the only treatment at this point that would ameliorate Kosilek's continued gender dysphoria." Ex. 53 at 159. Finding the opinions of Drs. Kaufman and Kapila to be reliable, Dr. Appelbaum of UMass concluded that sex reassignment surgery "is not only clinically appropriate and should be offered to Miss Kosilek, but . . . it is medically necessary." Oct. 3, 2006 Tr. at 36. Dr. Brown opined that sex reassignment surgery, together with hormones and psychotherapy, is necessary to provide Kosilek with "minimally adequate and medically necessary" care. May 31, 2006 Tr. at 13. Dr. Forstein testified that "the only prudent treatment for Michelle Kosilek at this point is Sexual Reassignment Surgery." Mar. 15, 2007 Tr. at 116. Dr. Forstein further explained that sex reassignment surgery is "the only reasonable treatment to prevent the potentially catastrophic effect of refusing treatment to her at this point in her life." Id. at 132.
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In contrast, as indicated earlier, Dr. Schmidt testified that he did not agree with the Standards of Care to the extent that they state, "Sexual Reassignment is Effective and Medically Indicated in Severe GID." See June 7, 2006 Tr. at 82. Nor did he agree with the Standards of Care that sex reassignment surgery "when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary." Id.
In addition, the Standards of Care provide that in order to obtain sex reassignment surgery an individual must obtain two "letters of recommendation" from qualified mental health professionals. See Ex. 9 at 7-8. Accordingly, prudent professionals who treat individuals suffering from severe gender identity disorders write such letters of recommendation when sex reassignment surgery is necessary to treat a particular patient adequately. However, consistent with his view that sex reassignment surgery is never medically necessary, Dr. Schmidt never recommends sex reassignment surgery for any patients. See June 7, 2006 Tr. at 77, 80. At most, Dr. Schmidt writes letters taking a neutral position on sex reassignment surgery for a particular patient. Id. at 77, 80.
Dr. Schmidt also opined that sex reassignment surgery is not medically necessary for Kosilek particularly. Dr. Schmidt based his opinion in part on his general opposition to sex reassignment surgery. He also relied on his view that it is impossible to have
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a "real life experience" in prison and, therefore, Kosilek is not eligible for sex reassignment surgery under the Standards of Care.
Dr. Schmidt recognized that Kosilek would likely suffer severe emotional distress if denied sex reassignment surgery, become depressed, and be at risk of committing suicide. Id. at 103. However, as described earlier, Dr. Schmidt recommended that instead of sex reassignment surgery, Kosilek be provided psychotherapy and antidepressants, and be put on a "suicide watch" to keep him from succeeding in killing himself. Id. at 38-39, 91, 106. As Dr. Schmidt described it, his approach would not be aimed at curing the mental illness that caused Kosilek's suffering, but at managing the symptoms of that illness to reduce the intensity of the suffering and the risk of suicide. Id. at 106. In his opinion, this approach would be sufficient to diminish Kosilek's mental anguish to a point at which he no longer suffers serious harm from his gender identity disorder and, therefore, no longer has a serious medical need. Id. at 106-07.
Although Drs. Brown, Kaufman, Kapila, Appelbaum, and Forstein recommended sex reassignment surgery for Kosilek, if Dr. Schmidt's recommended alternative treatment for Kosilek is "of a quality acceptable within prudent professional standards," it would constitute adequate medical care for the purpose of the objective prong of the Eighth Amendment deliberate indifference standard. See DeCologero, 821 F.2d at 43. Therefore, as described earlier, the court ordered the DOC to have UMass review the transcripts of the
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medical testimony and address, among other things, whether the "approach advocated by [Dr.] Schmidt constitutes 'adequate medical care' for Kosilek, meaning 'services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.'" June 29, 2006 Order at ¶2 (quoting Kosilek I, 221 F. Supp. 2d at 180). After consulting Drs. Kaufman and Kapila, in whom he continued to have confidence, Dr. Appelbaum explained in a lengthy letter, and credibly concluded, that "[t]he recommendations of Dr. Schmidt do not meet prudent professional standards." Ex. 90 at 6-7.
As also explained earlier, in a further effort to make a wellinformed decision concerning whether Dr. Schmidt's recommended treatment for Kosilek constituted adequate medical care, pursuant to Federal Rule of Evidence 706, the court appointed Dr. Levine as an additional expert.
Dr. Levine's credible testimony at trial also contributes to the court's conclusion that Dr. Schmidt is not a prudent professional and his recommendations concerning Kosilek are not within the range that would be acceptable by prudent professionals. In his initial report to the court, Dr. Levine stated that, "[i]t is my opinion that Dr. Schmidt's view, however unpopular and uncompassionate in the eyes of some experts in GID, is within prudent professional standards." Ex. 98 at 18. However, Dr. Levine's testimony demonstrated that the opinion expressed in his report was based on several erroneous assumptions and that in his
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view there were many respects in which Dr. Schmidt was not a prudent professional.15
Most significantly, Dr. Levine testified that he did not
believe a prudent professional would deny Kosilek sex reassignment
surgery. In his view, Dr. Schmidt's recommendations would be a
professionally prudent response to Kosilek's condition only if, for
some reason such as cost or the fact that Kosilek was incarcerated,
sex reassignment surgery was not an option. See Dec. 19, 2006 Tr.
at 190, 201. Despite instructions by the court to the contrary, see
Oct. 31, 2006 Order, in formulating the opinion expressed in his
report Dr. Levine relied on the assumptions that Kosilek had not had
the real life experience required by the Standards of Care and that
Kosilek could not afford to pay for sex reassignment surgery. Id.
at 180, 190. Eliminating these considerations and any security
concerns, Dr. Levine opined that a prudent professional would not
deny Kosilek sex reassignment surgery. Id. at 179, 190. Rather,
he stated that, as contemplated by the Standards of Care, a prudent
15Even when the testimony is unequivocal, "[t]he court may not rubber stamp the conclusions reached by a court-appointed expert." Gonzalez v. Galvin, 151 F.3d 526, 535 (6th Cir. 1998). Rather, the court must recognize "that even an impartial expert can be wrong, and that the impartial expert must be subjected to the same evaluation of credibility as any other witness." DeAngelis v. A. Tarricone, 151 F.R.D. 245, 247 (S.D.N.Y. 1993). This means, among other things, that the court must consider the reasons for the impartial expert's opinions and disregard them to the extent that they rely on unproven or erroneous assumptions. The court must also "decide how much of [the] witness's testimony to believe, and how much weight it should be given." First Circuit Pattern Jury Instr. 2.07 (6/14/02).
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professional would write a letter recommending sex reassignment surgery, and stated that a "qualified mental health professional" working with patients with gender identity disorders would not adopt a uniform policy of refusing to write letters of recommendation, as Dr. Schmidt did. Id. at 164-65.
Dr. Levine also testified that antidepressants would not provide treatment for Kosilek's gender identity disorder. Id. at 174-75. According to Dr. Levine, a prudent professional would not deny an eligible individual in the community sex reassignment surgery and provide him with antidepressants instead. Id. at 176.
As indicated earlier, based on the credible evidence, the court finds that Dr. Schmidt is not a prudent professional and that the treatment that he proposed for Kosilek is not "of a quality acceptable within prudent professional standards." DeCologero, 821 F.3d at 43. Therefore, the court concludes that Dr. Schmidt's proposal would not provide adequate medical care for Kosilek's condition.
The court finds that Dr. Schmidt is not a prudent professional for several reasons. First, he does not accept certain fundamental features of the Standards of Care, which "describe the generally accepted treatment for individuals with gender identity disorders in the community." Kosilek I, 221 F. Supp. 2d at 166; see also Fields, 653 F.3d at 553; O'Donnabhain, 134 T.C. at 65-67. Contrary to the Standards of Care, Dr. Schmidt does not believe that sex reassignment surgery is ever medically necessary. In further
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contrast to prudent professionals who follow the Standards of Care, Dr. Schmidt will not write a letter recommending that an eligible patient receive sex reassignment surgery.
In addition, contrary to this court's conclusion, Dr. Schmidt does not believe that Kosilek has had the real life experience required by the Standards of Care because, in his view, it is not possible to have the required real life experience in prison. See June 7, 2006 Tr. at 78-79. This is one reason that he believes that sex reassignment surgery has not been shown to be medically necessary for Kosilek. See June 7, 2006 Tr. at 79. However, as Drs. Kaufman and Kapila wrote, in their response to Osborne's peer review of their evaluation of Kosilek, "[t]he point of having a [real life experience] is to provide the person with an awareness of what to expect in a different gender role." Ex. 53 at 154. Kosilek's real life experience living as a woman in prison provides him with an awareness of what to expect in a different gender role, as he is serving a life sentence and will never have the opportunity to live as a woman outside of prison. Indeed, the evidence at trial indicated that the prison environment has provided Kosilek with a an even more stringent "real life experience" test than many transsexuals have outside prison, because inmates are constantly under observation and any failure to live as a woman would be readily noted. Except for his assumption that Kosilek has not had a real life experience, Dr. Schmidt acknowledges that there are no
88

medical contraindications to providing Kosilek sex reassignment surgery. See June 7, 2006 Tr. at 79.
In addition, Dr. Schmidt's opinion that Kosilek should not be provided sex reassignment surgery is not based on Kosilek's unique circumstances, but on Dr. Schmidt's categorical view, unsupported by the Standards of Care, that sex reassignment surgery for a prisoner is never justified. Such a "failure to consider an individual inmate's condition in making treatment decisions is . . . . precisely the kind of conduct that constitutes a substantial departure from accepted professional judgment, practice, or standards such as to demonstrate that the person responsible actually did not base the decision on such a judgment." Roe, 631 F.3d at 862-63 (internal quotation omitted); see also Soneeya, 2012 WL 105625, at *16; Kosilek I, 221 F. Supp. 2d at 193.
Moreover, the treatment Dr. Schmidt recommends, psychotherapy and antidepressants, would not treat the cause of Kosilek's intense mental anguish, but rather would only attempt to diminish its symptoms. As both Drs. Kapila and Appelbaum credibly testified, prudent medical professionals typically treat the cause of a disease or disorder, not merely the symptoms. Once again, absent genuine countervailing penological considerations, adequate medical care requires addressing the cause of the inmate's serious medical need rather than merely providing treatment to reduce the pain it causes. See Fields, 653 F.3d at 556; Wolfe, 130 F. Supp. 2d at 653; West, 571 F.2d at 162; Sulton, 265 F. Supp. 2d at 300.
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In any event, the approach proposed by Dr. Schmidt would not reduce Kosilek's suffering to the point that he no longer had a serious medical need. As Drs. Kapila, Kaufman, Appelbaum, and Brown persuasively testified, antidepressants and psychotherapy would not eliminate Kosilek's distress or diminish it to the point where there was no longer a significant risk of serious harm. Indeed, antidepressants could increase, rather than diminish, the risk of serious harm to Kosilek. At times antidepressants may, as Dr. Kaufman testified, give a depressed person the emotional energy to kill himself that he would otherwise lack. Kosilek has already attempted to kill himself while taking Prozac.16
Accordingly, the court finds that Dr. Schmidt is not a prudent professional. His approach is not within the range of treatment that a prudent professional would prescribe, and the treatment he recommends is not adequate to treat Kosilek's serious medical need. While based on the evidence in this case, the court's conclusion concerning whether Dr. Schmidt is a prudent professional and his proposal for treating Kosilek is comparable to the Tax Court's assessment of his testimony in O'Donnabhain. There, the Tax Court rejected Dr. Schmidt's characterization of the Standards of Care as "merely guidelines" rather than a true "community standard."
16At least one other transsexual prisoner reportedly also attempted suicide while taking Prozac. See Wolfe, 130 F. Supp. 2d at 650-51. In addition, it appears that De'lonta attempted to mutilate himself while taking Prozac. See De'Lonta, 330 F.3d at 635.
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O'Donnabhain, 134 T.C. at 45. It also characterized Dr. Schmidt's view that sex reassignment surgery was not ever medically necessary, or medically necessary for O'Donnabhain, as "idiosyncratic and unduly restrictive." Id. at 75. This court agrees with that characterization of Dr. Schmidt's views.
In any event, Kosilek has proven that he has a serious medical need that has not been adequately treated because sex reassignment surgery is the only adequate treatment for it. Kosilek has, therefore, satisfied the objective prong of the deliberate indifference test. See Farmer, 511 U.S. at 835-47; Wilson, 501 U.S. at 298-99; DesRosiers, 949 F.2d at 18; De'Lonta, 330 F.3d at 634.
3. Kosilek Has Satisfied the Subjective Prong of the Deliberate Indifference Test
As explained earlier, a prison official cannot be found to be deliberately indifferent to a prisoner's serious medical need unless he "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; see also Flanory, 604 F.3d at 254; Chance, 143 F.3d at 702; De'Lonta, 330 F.3d at 634.
As a threshold matter, it is usually necessary to identify the decisionmaker whose state of mind is to be analyzed. See Kosilek I, 221 F. Supp. 2d at 190; cf. Farmer v. Moritsugu, 163 F.3d at 61415. Prior to trial the DOC stipulated that the defendant,
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Commissioner Dennehy, was "the sole decision-maker for determining whether safety and/or security concerns prevent the provision of sex reassignment surgery to Kosilek." May 26, 2006 Second Amended Stipulations at ¶10. During trial, it was confirmed that this stipulation means that Dennehy should not be the focus for the court's determination of whether the defendant knew that Kosilek had a serious medical need for which sex reassignment surgery was medically necessary, but only for the purpose of deciding whether safety and security concerns precluded the provision of sex reassignment surgery. Ultimately, the defendant agreed that the court should focus on Dr. Appelbaum of UMass, rather than Dennehy, to determine whether the DOC knew that Kosilek was at a substantial risk of serious harm if not provided sex reassignment surgery. See Oct. 18, 2006 Tr. at 16; May 13, 2008 Tr. at 44. However, it was also confirmed that the court should focus on Dennehy to determine the relevant facts regarding the existence and implications of any good faith security concerns for the purpose of the subjective prong of the deliberate indifference standard. See Oct. 18, 2006 Tr. at 16. In Battista, however, the First Circuit stated that where, as here, the suit is against defendants only in their official capacities and seeks injunctive relief, it is unnecessary to sort out "the separate roles of individual defendants." 645 F.3d at 452.17
17UMass, Dr. Appelbaum, Dr. Arthur Brewer, Dr. Harrison O'Connor, Karen Dewees, and Correctional Medical Services, Inc.
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On the record before the court, it does not matter whether Dennehy or Dr. Appelbaum is the focus for determining whether the relevant decisionmaker actually knew that Kosilek was at substantial risk of serious harm if he did not receive sex reassignment surgery. The evidence on the record clearly establishes that both Dr. Appelbaum and Dennehy were aware of facts from which they could infer that a substantial risk of serious harm to Kosilek existed, and drew the inference. See Farmer, 511 U.S. at 837.
As explained earlier, Dr. Appelbaum held this view and repeatedly expressed it to Dennehy. Dr. Appelbaum read the court's decision in Kosilek I at the time it was issued. Therefore, he was aware of the court's conclusion that "there is a high risk that Kosilek will harm himself if he does not receive adequate treatment for his severe mental illness." See 221 F. Supp. 2d at 165. Dr. Appelbaum also read and accepted the February 24, 2005 report of Drs. Kaufman and Kapila, which concluded that it was "quite likely" that Kosilek would attempt to commit suicide again if unable to change his anatomy. See Ex. 25 at 5.
Dr. Appelbaum communicated to the DOC on "many occasions" that there were risks of suicide and self harm if the recommendations of Drs. Kaufman and Kapila were not followed. See June 2, 2006 Tr. at 9. In a June 14, 2005 letter on which Dennehy was copied, Drs.
were originally named as defendants in this case in their official capacities. The claims against them were dismissed before trial.
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Appelbaum and Brewer recommended sex reassignment surgery from a clinical perspective, describing, among other things, Drs. Kaufman and Kapila as having concluded that Kosilek "would likely attempt suicide in the event she were denied such treatment." Ex. 16. On September 1, 2005, Drs. Appelbaum and Brown wrote to the DOC regarding treatment recommendations involving Kosilek and other inmates with gender identity disorder, stating that "further delay in providing the recommended treatment likely will result in continued or increased levels of distress for each afflicted individual, with the possibility of self-inflicted injury." Ex. 42. Dennehy was copied on this letter too. In response to a court order, Drs. Appelbaum and Brewer also reviewed certain trial testimony and wrote to Dennehy on September 18, 2006, endorsing the testimony of Dr. Kaufman that Kosilek would face a substantial risk of serious harm if he did not receive sex reassignment surgery. See Ex. 90.
Dennehy also read the court's decision in Kosilek I, including the court's conclusion that Kosilek's gender identity disorder was causing him severe emotional distress, and accepted that as an accurate statement of Kosilek's condition. See June 19, 2006 Tr. at 86-87. In addition, Dennehy read the report of Drs. Kaufman and Kapila, and Dr. Appelbaum's letters about Kosilek, each of which discussed the likelihood that Kosilek's gender identity disorder could cause him to attempt suicide or inflict injuries upon himself. See Exs. 16, 25, 90. Finally, after being ordered to read the medical testimony at trial, Dennehy stated that she credited the
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opinions of the clinicians and did not dispute that Kosilek's gender
identity disorder constituted a serious medical need. See Oct. 18,
2006 Tr. at 11. Instead, she testified that only safety and
security concerns were preventing Kosilek from receiving the prescribed treatment. Id. at 17.18
Kosilek has proven that both Dr. Appelbaum and Dennehy actually
knew that Kosilek faced a substantial risk of serious harm. See
Farmer, 511 U.S. at 837. Therefore, each knew that Kosilek had a
serious medical need. See id.; McGuckin, 974 F.2d at 1059.
4. The Defendant's Stated Security Concerns are Pretextual and do not Justify Denying Kosilek Sex Reassignment Surgery
In view of the foregoing, Kosilek has proven that: he had a
serious medical need; sex reassignment surgery is the only adequate
treatment for it; and both the Commissioner of the DOC and UMass,
which is responsible for making medical decisions for the DOC, know
that Kosilek is suffering serious harm and will continue to do so
if not provided such surgery. However, the Commissioner claims that
18This was the same position taken by Clarke. On May 7, 2008, Clarke informed the court that, like Dennehy, he did not "profess to have any clinical training that would enable [him] to render an opinion regarding the validity of the clinical opinions expressed at trial." Ex. 107. Those opinions included Dr. Appelbaum's advice to Dennehy that Kosilek was at substantial risk of serious harm if not provided sex reassignment surgery. Also like Dennehy, however, Clarke stated in his report to the court that "the safety and security concerns presented by the prospect of undertaking sex reassignment surgery for Michelle Kosilek are insurmountable." Id. Clarke subsequently testified and reiterated these views.
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security considerations preclude providing the treatment DOC doctors
have prescribed for Kosilek.
In essence, the court is required to determine whether the
issue anticipated in Kosilek I truly exists and, if so, how it must
be decided. As indicated earlier, in Kosilek I, the court wrote:
It is conceivable that a prison official, acting reasonably and in good faith, could perceive an irreconcilable conflict between his duty to protect the safety of inmates and his duty to provide a particular inmate with adequate medical care. If so, his decision not to provide that medical care might not violate the Eighth Amendment because the resulting infliction of pain on the inmate would not be unnecessary or wanton. Rather, such a decision might be reasonable. The Supreme Court has held that "prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause." Farmer, 511 U.S. at 845; see also White[], 849 F.2d [at] 325 [] ("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).
221 F. Supp. 2d at 182.
This statement of the law has been confirmed and clarified by
decisions since Kosilek I, particularly the First Circuit's 2011
decision in Battista, which, as explained previously, also involved
the treatment of a transsexual by the DOC during the time Kosilek
has been denied sex reassignment surgery. 645 F.3d at 449.
As indicated earlier, the Supreme Court has stated that to
violate the Eighth Amendment "the offending conduct must be wanton."
Wilson, 501 U.S. at 302. Where, as here, "the conduct is harmful
enough to satisfy the objective component of the Eighth Amendment
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claim, whether it can be characterized as 'wanton' depends upon the constraints facing the official." Id. at 303 (internal citation omitted).
The duty to reasonably assure the security of the inmate, and others, is one of the realities of prison administration which may compete with a prison official's duty to provide an inmate medical care. See Farmer, 511 U.S. at 833; Battista, 645 F.3d at 454-55. As the First Circuit stated in Battista:
[S]ecurity considerations also matter at prisons . . . and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials' actions are not deliberate indifference. 645 F.3d at 454 (internal quotation omitted). Therefore, if the decision to deny Kosilek sex reassignment surgery has been made in good faith and is based on reasonable security concerns, the court must defer to the DOC. Id. at 454-55; Whitley, 475 U.S. at 321-22. Deciding whether an official has acted in good faith requires that the court determine subjective intent. "[S]ubjective intent is often inferred from behavior." Battista, 645 F.3d at 453. Among other things, deliberate indifference may be "evidenced by 'denial, delay, or interference, with prescribed health care.'" Id. (quoting DesRosiers, 949 F.2d at 19). As described below, in the instant case the court is persuaded that defendant's stated reasons for denying Kosilek the care the DOC doctors have prescribed are not reasonable and made in good faith.
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Rather, they are pretextual. More specifically, Kosilek has not been denied sex reassignment surgery because of a good faith belief that his security, or anyone else's, could not be reasonably assured if he is provided sex reassignment surgery. Rather, the defendant has refused to provide the only adequate treatment for Kosilek's serious medical need in order to avoid public and political criticism. This is not a legitimate penological purpose. Therefore, the defendant's conduct is wanton and violates the Eighth Amendment.
This conclusion is based on a combination of corroborating considerations. They include the following.
Dennehy was the Deputy Commissioner of the DOC at the time of Kosilek I. She was then integrally involved in decisions by Maloney that the court found were motivated in part by the belief that sex reassignment surgery was not an appropriate use of taxpayer's money and that any such expenditure would be unpopular. See Kosilek I, 221 F. Supp. 2d at 162. She also participated in the decision to terminate the employment of Dr. Seil after he recommended sex reassignment surgery for Kosilek.
As described earlier, when Dennehy became Acting Commissioner in 2003, she immediately halted the provision of certain prescribed treatments for Kosilek and other transsexual prisoners, purportedly to review their cases, and long delayed decisions on such treatments. When Kosilek had completed a year of real life experience taking hormones, Dr. Appelbaum, despite reservations
98

expressed on behalf of Dennehy, decided to engage the Fenway Clinic doctors to perform an evaluation to determine whether Kosilek should be provided sex reassignment surgery. Departing from the DOC's standard practice of relying on its doctors to retain specialists, Dennehy had the DOC hire Osborne, who Dennehy knew opposed sex reassignment surgery and had testified against allowing inmates prescribed treatment for gender identity disorder in two other states, to counter the Fenway Clinic's recommendation. Dennehy then testified falsely that her decision to hire Osborne was not based on Osborne's known opposition to ever providing a prisoner sex reassignment surgery.
Dennehy also testified falsely that she did not understand that the DOC's doctors were recommending sex reassignment surgery as the only adequate treatment for Kosilek. Although Dennehy testified in June 2006 that up to and during the trial UMass had not clearly communicated to her whether it recommended sex reassignment surgery as the only adequate treatment for Kosilek, this contention is not credible. As discussed earlier, on November 23, 2005, about eight months before the trial, Dennehy wrote to Lappin, the Director of the Bureau of Prisons that, "[o]ur medical providers[,] the Commonwealth's medical school, is supporting their consultant's recommendation for the surgery !!!!!!." Ex. 88. The court finds that Dennehy was pretending not to understand UMass's treatment recommendations in order to delay having to announce that she would not allow Kosilek to receive sex reassignment surgery.
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In addition, the court finds that Dennehy's purported safety and security concerns regarding the provision of sex reassignment surgery to Kosilek are pretextual and unreasonable. The process by which Dennehy decided that security concerns precluded the provision of sex reassignment surgery contributes to this conclusion. In making the initial security determination, Dennehy departed from the DOC's established, written procedure and did not get a recommendation from Spencer, as Superintendent of MCI Norfolk, before declaring to the media, and later to the court, that providing sex reassignment surgery for Kosilek would create insurmountable security problems. Dennehy did not get any advice from the experts that the DOC retained to testify on security issues at trial, Beeler and Dumond, before stating her position. Therefore, she did not rely on their opinions in forming her position and they are not relevant to the question of her good faith.
Similarly, Clarke did not consult Spencer about these security concerns or claim to have relied on the DOC's trial experts in deciding that he agreed with Dennehy's position. Rather, he merely reviewed some testimony, responded to questions posed by the DOC's trial counsel, and provided comments on the report that they prepared for submission to the court. As with Dennehy, Clarke's position did not result from a process pursued with an open mind in a good faith effort to determine whether security considerations required denying Kosilek sex reassignment surgery.
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In addition, the court finds that the purported security considerations that Dennehy and Clarke claim motivated their decisions to deny Kosilek sex reassignment surgery are largely false and any possible genuine concerns have been greatly exaggerated to provide a pretext for denying the prescribed treatment. Dennehy and Clarke each ultimately accepted the DOC doctors' assessment that Kosilek is suffering genuine mental anguish, and that there is a substantial risk that he will again attempt to kill himself if not provided sex reassignment surgery. Yet they claim that they will not permit him to receive that treatment in part because doing so would encourage other prisoners to try to manipulate prison officials by pretending to be similarly situated to Kosilek. However, Dr. Brown testified in this case that he had "never seen" a patient seek to remove his genitals, as Kosilek has, for the purpose of gaining some other benefit. May 30, 2006 Tr. at 113; see also Kosilek I, 221 F. Supp. 2d at 164-65 ("As Dr. Marshall Forstein persuasively put it, he has never known a 'heterosexual man want to voluntarily give us his penis to get something like hormones.'"). The court agrees that there is no real risk that a male prisoner will attempt to cut off his testicles unless he is suffering from a severe gender identity disorder. The court understands that some prisoners may threaten suicide in order to obtain something of value to them. However, the court finds that a desire to deter such efforts by others did not motivate Dennehy's decisions concerning
101

Kosilek and, in any event, would not be a reasonable justification for denying him adequate medical care for his serious medical need.
Dennehy also claimed that she was motivated to deny Kosilek sex reassignment surgery by her understanding that there is no one in Massachusetts to perform the sex reassignment surgery Kosilek requires and her belief that there is too great a risk that Kosilek would flee if transported to another state to receive it. As discussed below, it is not now necessary or, indeed, permissible for the court to decide where Kosilek should receive such surgery. That is a decision to be made by the DOC. However, Massachusetts is a medical mecca and there may now be a doctor who regularly practices in the state who could perform the surgery. In addition, Dr. Schechter, who is experienced in performing sex reassignment surgery, expressed a willingness to provide it to Kosilek in Massachusetts if he receives the sponsorship to do so that is required because Dr. Schechter is not licensed to practice in Massachusetts.
In any event, Dennehy knew that there are other states in which Kosilek's sex reassignment surgery could be performed, including Illinois, where Dr. Schechter is licensed. Dennehy claimed, however, that there is an unacceptable risk that Kosilek would flee if transported out of Massachusetts for the procedure. She justified her position in part on the fact that Kosilek fled Massachusetts after murdering his wife. Dennehy's purported concern that Kosilek would flee if transported to receive treatment is
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plainly pretextual. The DOC's Male Classification Manual, which is
used to determine the level of the security risk posed by a
prisoner, states with regard to how past flight should influence an
inmate's security classification that "escapes or attempts to escape
. . . do not include . . . fugitive from justice, resistance at time
of arrest or other incidents in which custody is not determined."
See Classification Manual at 2.19 More significantly, Dennehy knew
19On June 2, 2008, Kosilek moved to supplement the record to add the Classification Manual as an exhibit. See Plaintiff's Mot. for Leave to Supplement Record and for Rule 37 Sanctions. Defendant opposed its admission on relevance grounds. The court finds that the Classification Manual is relevant to Commissioners Dennehy and Clarke's assessment of Kosilek as a flight risk, which in turn is relevant to the credibility of their stated security concerns. Neither party challenges the reliability of the Classification Manual. The Classification Manual is admissible under the public records exception to the hearsay rule. See Fed. R. Evid. 803(8).
Moreover, the court may take judicial notice of the Classification Manual, as it is a record of a state agency not subject to reasonable dispute. See Brown v. Valoff, 422 F.3d 926, 931 n.7 (9th Cir. 2005) (taking judicial notice of the California Department of Corrections Operations Manual and stating, "'[w]e may take judicial notice of a record of a state agency not subject to reasonable dispute'" (quoting City of Sausalito v. O'Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004))). The court may also take judicial notice of state regulations. See Getty Petroleum Marketing, Inc., v. Capital Terminal Co., 391 F.3d 312, 325 n.19 (1st Cir. 2004) (Lipez, J., concurring) (stating that "[f]ederal courts and most state courts take judicial notice of [state administrative] regulations" and citing McCormick on Evidence §335 ("State and national administrative regulations having the force of law will also be noticed, at least if they are published so as to be readily available.")); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 742 n.4 (1976) (taking judicial notice of rules and regulations adopted by the Board of Public Works of Maryland). Although the DOC's Classification Manual is not published in a regulation, it is referenced in two published regulations: 103 Mass. Code Regs. §420.06 and 103 Mass. Code Regs. §420.08(3)(d).
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that Kosilek had never attempted to flee during the many times he was transported to medical appointments and court. She did not truly believe that Kosilek would do so while being transported to get the treatment he had dedicated the past twenty years of his life to receiving. Nor did she have a genuine fear that Kosilek would flee after the procedure, while still recovering from it.
Clarke too initially opined that Kosilek posed an unacceptable risk of flight if transported out of Massachusetts in part because he had fled the state after killing his wife. See Ex. 107. However, Clarke ultimately testified that he could say "[w]ith some degree of certainty" that the DOC would "take all the precautions necessary to secure that transport, secure the place where it's going to take place, and care for [Kosilek] in terms of providing appropriate custody prior to returning [Kosilek] back to the state." May 12, 2008 Tr. at 114. Clarke also admitted that, in characterizing Kosilek as an escape and security risk, he had not reviewed Kosilek's disciplinary record and classification history, reflecting Kosilek's record of excellent behavior in prison, and was unaware that Kosilek was in his late fifties and, therefore, was likely to be less dangerous than younger inmates. He acknowledged that these factors weigh in favor of a finding that Kosilek posed fewer security risks than he originally claimed.
Accordingly, the court has considered the Classification Manual to be evidence in this case. It is not essential, however, to the court's conclusions.
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Dennehy and Clarke also claimed that they denied Kosilek sex
reassignment surgery because they could not reasonably assure his
safety, or the safety of others, after the surgery. The court
continues to recognize, as it did in Kosilek I, that "[p]rison
officials must 'take reasonable measures to guarantee the safety of
inmates,' as well as to provide them adequate medical care.'" 221
F. Supp. 2d at 194 (quoting Farmer, 511 U.S. at 832, and Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)); see also Battista, 645 F.3d
at 454 (quoting Farmer, 511 U.S. at 833). As the DOC's experts,
Beeler and Dumond, testified, there are real risks of sexual assault
and other violence in prison. However, as indicated earlier, those
experts did not express these views to Dennehy before she announced
that security presented an insurmountable obstacle to providing sex
reassignment surgery to Kosilek. Nor was Beeler sufficiently
informed about the facts concerning Kosilek to be permitted to
testify concerning any risk to, or posed by, Kosilek particularly.20
20The court has given little weight to the testimony of Dumond and Beeler because both experts failed to consider material aspects of Kosilek's history and personal characteristics in forming their opinions. Although Dumond testified as to the general risks of sexual assault and violence in prisons and provided some testimony concerning Kosilek particularly, his opinions did not take into account Kosilek's history of being safely incarcerated in a male prison, while long living as a woman. In addition, although Dumond testified as to the risks of housing Kosilek at MCI Framingham, this testimony was not based on any studies or literature, and was speculative. With regard to Beeler, as indicated earlier, he did not review Kosilek's medical records as he would normally do before making a decision regarding prescribed medical treatment for an inmate, and did not have sufficient facts concerning Kosilek to be qualified to express an opinion on any risk to, or posed by,
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Nevertheless, there is superficial appeal to Dennehy's claim that there is an unacceptable security risk involved in either incarcerating someone who is anatomically a female in a male prison or placing a person who has murdered his wife in a female prison. The court, however, finds that these concerns were not reasonable, and did not actually motivate the decisions of Dennehy or Clarke to deny Kosilek sex reassignment surgery. Rather, each of them ultimately agreed that it would be possible for the DOC to reasonably assure the safety of Kosilek and others after sex reassignment surgery by housing Kosilek in a segregated protective custody unit.
As explained below, it is not now necessary or permissible for the court to decide where Kosilek should be incarcerated after receiving sex reassignment surgery. That is a matter that must be decided, reasonably and in good faith, by the DOC. However, there are a range of potentially viable options, and this contributes to the conclusion that the defendant's position that safety considerations present an insurmountable barrier to providing sex reassignment surgery is pretextual.
First, Kosilek could continue to be housed in the general population at MCI Norfolk, a male prison. Prior to the decision in Kosilek I, the defendant claimed it would be too dangerous to
Kosilek particularly. Accordingly, the court limited his testimony to general security concerns and the reasonableness of those concerns.
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provide Kosilek female hormones, or even make-up, and allow him to remain at MCI Norfolk. See 221 F. Supp. 2d at 170. However, after the court's decision Superintendent Spencer found that doing so would not present any security concerns. See Ex. 21. Kosilek was then provided with hormones, make-up, and feminine apparel. He has been living at MCI Norfolk with breasts, long hair, makeup, and feminine clothes for many years. This has not provoked any assaults or created any other problems. In view of this history, neither Dennehy nor Clarke has provided a credible explanation for their purported belief that if Kosilek's genitalia are altered the risk to him and others at MCI Norfolk will be materially magnified.
Kosilek would much prefer to be incarcerated in the women's prison, MCI Framingham. That, however, is not his decision to make. The claims of Dennehy and Clarke that they have denied sex reassignment surgery for Kosilek in part because MCI Framingham is not sufficiently secure to prevent an escape by Kosilek, who has never attempted to flee, are not credible. There is conflicting testimony on whether Kosilek's mere presence at MCI Framingham would disturb the "climate" of the prison and possibly provoke violence. The Superintendent, Bissonette, testified that it would. Dr. Appelbaum, who was in charge of the UMass mental health program at the DOC and was, therefore, familiar with the provision of mental health treatment in the DOC's prisons, stated that it was at most uncertain whether Kosilek would disrupt the "climate" at MCI Framingham, but that any "climate" issues could be managed.
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In any event, as Dennehy and Clarke each acknowledged, there are alternatives to placing Kosilek in the general population of either MCI Norfolk or MCI Framingham. As they knew, the Interstate Corrections Compact, M.G.L. c. 125, App. §2-1 (2006) (the "ICC") could be used to transfer Kosilek to a prison in another state, where he would be less notorious and, therefore, at less risk of harm. The ICC was used to transfer Joseph/Josephine Shanley, a transsexual who murdered his sister, from New Hampshire to Washington. Shanley was housed there in a women's prison so uneventfully that while Clarke was Commissioner of Corrections in Washington he did not know Shanley was in his custody. The Commissioners' refusal to explore the option of an interstate transfer further undermines their credibility concerning the reason Kosilek has been denied sex reassignment surgery.
Most significantly, all of the responsible DOC officials testified that after sex reassignment surgery the safety of Kosilek and others could be reasonably assured if Kosilek was placed in a segregated unit at either MCI Norfolk or MCI Framingham, in a form of protective custody.21 The conditions of incarceration they
21More specifically, Dennehy testified that it was not "truly impossible" for the DOC to provide a safe and secure place of incarceration for Kosilek if he had sex reassignment surgery. See June 20, 2006 Tr. at 53. Rather, after sex reassignment surgery "the only acceptable result from [Dennehy's] perspective would be placement in either . . . at Norfolk, the Special Management Unit, or at Framingham in the Closed Custody Unit, in 23 hour lock down." Id.; see also id. at 77.
Clarke agreed, stating that he could and would place Kosilek 108

contemplated would be onerous for Kosilek. After sex reassignment surgery, it may foreseeably be argued that keeping Kosilek in segregation is unnecessary and a form of extrajudicial punishment that is prohibited by the Eighth Amendment.
That issue, however, is not now before the court. Indeed, it may never be. In Battista, "for some time, the defendants portrayed the choice facing the court as one between keeping Battista in a severely constraining protective custody unit and denying her hormone therapy." 645 F.3d at 455. However, "[f]inally faced with a decision by the district court to require therapy, defendants . . . offered to create a modified protective custody arrangement that would provide Battista and others with both protection from other residents and 'access to treatment, work, educational programs, and recreation.'" Id. at n.5. The DOC may decide that the same measures would be appropriate for Kosilek after he receives sex reassignment surgery.22
in the Special Management Unit at MCI Norfolk after surgery. See May 12, 2008 Tr. at 50-51; Ex. 107. As then Superintendent of MCI Norfolk, Spencer also testified that he could and would place Kosilek in that unit at MCI Norfolk. See June 9, 2006 Tr. at 5253. Bissonnette testified that if Kosilek were assigned to MCI Framingham after sex reassignment surgery, she would place Kosilek in the Closed Custody Unit at MCI Framingham "for as long as [Bissonnette] felt that the security and operation of the institution were at risk." June 21, 2006 Tr. at 42.
22The possibility of a special unit for transsexual prisoners was discussed in the testimony at the trial of Kosilek I and of the instant case.
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The immediate issue is limited to whether the defendant
reasonably and in good faith determined that security concerns
required denying Kosilek the only adequate treatment for his serious
medical need. See Battista, 645 F.3d at 454. Kosilek has proven
the defendant did not make that decision in good faith or
reasonably, but rather delayed and interfered with the prescribed
treatment based on pretextual and unreasonable security concerns.
Such a pattern of prevarication, "denial," "delay," and
"interference" has contributed to judicial findings that the DOC had
violated the Eighth Amendment rights of other transsexual inmates.
See Battista, 645 F.3d at 455 ("It was only after what the judge
perceived to be a pattern of delays, new objections substituted for
old ones, misinformation and other negatives that he finally
concluded that he could not trust the defendants [with regard to
whether hormones should be provided]. . . . [T]he record contains support for [this] conclusion.");23 Soneeya, 2012 WL 1057625, at *5
23As the First Circuit further explained in Battista:
First, for some time, the Department refused to take the GID diagnosis and request for hormone therapy seriously. Its representatives resisted it in other cases, and when their own medical advisers supported the request for Battista, the defendants went back and forth apparently looking for an out. It may take some education to comprehend that GID is a disorder that can be extremely dangerous. But the education seems to have taken an unduly long time in this instance, especially in light of the self-mutilation attempt.
645 F.3d at 455.
District Judge Douglas P. Woodlock characterized the period 110

(finding deliberate indifference where the DOC's response to transsexual plaintiff's "requests for treatment has been characterized by a series of delays, bureaucratic mismanagement, and seemingly endless security review with no clear rhyme or reason"); Brugliera, 2009 U.S. Dist. LEXIS 131002, at *33 (finding that defendant had acted with deliberate indifference in relying on "exaggerated security risks" to avoid providing adequate care to inmate and defendant had demonstrated no willingness to consider abiding by the treatment advice of the DOC's medical professionals for over three-and-a-half years); see also Todaro, 565 F.2d at 52 ("[A] series of incidents closely related in time . . . may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners.") (internal quotation omitted).
Accordingly, the court finds that defendant's decision to deny Kosilek sex reassignment surgery was not based on good faith and reasonable security concerns, and is not entitled to deference. Rather, the court finds that the decision to deny Kosilek sex reassignment surgery was made to avoid political and public criticism. Dennehy and her successor, Clarke, had an unusual motive to deny Kosilek the treatment that DOC doctors prescribed and to testify falsely about their reason for doing so. Issues concerning
from about 2004 to 2008, which included all of Dennehy's tenure as Commissioner, as "the period of obstruction of the clinicians' diagnosis and treatment." Battista v. Dennehy, 05-11456-DPW, Aug. 23, 2010 Tr. at 52. As described above, this court has relied on the evidence in the instant case to reach the same conclusion.
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medical care for prisoners rarely attract political or public
attention. In this case, however, the Lieutenant Governor in whose
administration Dennehy served publicly expressed her opposition to
Kosilek receiving sex reassignment surgery. A State Senator, who was
close to Dennehy, called her to discuss the television piece Dennehy
was facilitating and then introduced legislation to prohibit the DOC
from paying for sex reassignment surgery.
When the court ordered Clarke to reconsider the issue when he
became Commissioner, many Senators and State Representatives
immediately wrote to him to express their strong opposition to the
idea of public funds being used for a prisoner's sex change
operation. See Ex. 111, 112. More specifically, on April 4, 2008,
three days after the court instructed Clarke to review some of the
testimony and reconsider the issue, seventeen State Senators sent
a letter to Clarke, stating:
We write to you today to express our concern about recently published reports pertaining to your interest in reviewing the sex-change/hormone therapy case of convicted murderer Robert Kosilek. It is our opinion that taxpayer's money should not be used for such procedures.
Due to the present condition of our state's economic situation, along with our opposition to Mr. Kosilek's argument that the state should bear responsibility for paying for these treatments, we urge you to deny his request.
The granting of this request would not only be an affront to the taxpayers of the Commonwealth, but would also raise a significant security risk. A decision in favor of Mr. Kosilek would lead to negative consequences for his safety and send the wrong message to the citizens of Massachusetts in the ability of their government to
112

effectively use state funds to manage corrections facilities. Ex. 111. The Senators' reference to "the wrong message" would have reasonably been interpreted as a veiled threat that appropriations for the DOC might be reduced if Clarke reversed Dennehy's position. On April 8, 2008, 25 State Representatives wrote to Clarke to express "outrage" at the request that taxpayers fund a "sex-change" operation for Kosilek. Ex. 112. In addition, as described earlier, over many years, the media consistently published articles, columns, and editorials opposing the provision of sex reassignment surgery to prisoners generally and Kosilek particularly, often ridiculing the idea and specifically opposing the expenditure of taxpayer funds to provide such treatment. As stated earlier, elected officials, the media, and members of the public have every right to express their opinions on matters of interest to them. Nevertheless, prison officials must comply with the Eighth Amendment, and cannot deny prisoners adequate medical care because of cost concerns, or fear of political controversy or public criticism. As explained previously, it is not legally permissible to deny a prisoner adequate medical care because the required treatment would be expensive. See Ancata, 769 F.2d at 705; Harris, 941 F.2d at 1509; Durmer, 991 F.2d at 68-69; Chance, 143 F.3d at 703–04; Jones, 781 F.2d at 771; Rosado, 349 F. Supp. 2d at 1349; Renelique,
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2003 WL 230323771, at *15; Gates, 501 F.2d at 1320. In the instant case, however, the court does not find that the defendant has denied Kosilek the sex reassignment surgery prescribed for him primarily because it would be expensive. The DOC provides many prisoners with Hepatitis B medication that costs $18,000 a year. Other prisoners receive dialysis, which is also costly.
In this case, the defendant has denied Kosilek sex reassignment surgery because of the belief that the idea of providing such treatment for a transsexual who murdered his wife is offensive to many members of the community, many of their elected representatives, and to the actively interested media as well. Dennehy, who formulated the position of the DOC, and her successors have denied Kosilek the prescribed sex reassignment surgery to avoid controversy, criticism, and, indeed, ridicule, and scorn. This represents an abdication of the defendant's responsibility to obey the requirements of the Eighth Amendment.
Once again, it is important to recognize that, "[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts." Barnette, 319 U.S. at 638. Therefore, "[t]he right to be free of cruel and unusual punishment, like other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections." Furman, 408 U.S. at 268 (Brennan, J., concurring) (internal quotation omitted).
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Even prisoners who have committed the most despicable or controversial crimes are protected because "Eighth [A]mendment protections are not forfeited by one's prior acts." Spain, 600 F.2d at 194.
In summary, the court is persuaded that the decision to deny Kosilek sex reassignment surgery is not the result of a good faith balancing judgment and is not reasonable. See Battista, 645 F.3d at 454. Rather, that decision was based on fear of criticism and controversy, articulated at times as a concern about cost to the taxpayer. Neither cost nor fear of controversy is a legitimate penological objective. This court may not defer to the defendant's decision to deny Kosilek sex reassignment surgery because deference does not extend to "actions taken in bad faith and for no legitimate purpose." Whitley, 475 U.S. at 322; see also Battista, 645 F.3d at 454. Because there is no penological justification for denying Kosilek the treatment prescribed for him, he is now being subject to the "unnecessary and wanton infliction of pain" prohibited by the Eighth Amendment. Hope, 536 U.S. at 737 (internal quotation omitted); see also White, 849 F.2d at 325. Therefore, Kosilek has proven that, as in Battista, the DOC has violated the Eighth Amendment by being deliberatively indifferent to his serious medical need. 645 F.3d at 455.
5. Defendant's Deliberate Indifference Will Continue and, Therefore, Kosilek is Entitled to a NarrowlyTailored Injunction
In Kosilek I, the court warned that:
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If . . . concerns about cost or controversy prompt [the Commissioner] to deny Kosilek adequate medical care for his serious medical need, [the Commissioner] will have violated the Eighth Amendment. Kosilek will then likely be entitled to the injunction that he has unsuccessfully sought in this case.
221 F. Supp. 2d at 162. This warning was not heeded and the
requirements for an order directing the DOC to provide Kosilek sex
reassignment surgery have now been met.
The Supreme Court stated the standards for obtaining injunctive
relief in Farmer, writing in part:
In a suit such as petitioner's, insofar as it seeks injunctive relief to prevent a substantial risk of serious injury from ripening into actual harm, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct: their attitudes and conduct at the time suit is brought and persisting thereafter. . . . [T]o establish eligibility for an injunction, the inmate must demonstrate the continuance of that disregard during the remainder of the litigation and into the future. In so doing, the inmate may rely, in the district court's discretion, on developments that postdate the pleadings and pretrial motions, as the defendants may rely on such developments to establish that the inmate is not entitled to an injunction. If the court finds the Eighth Amendment's subjective and objective requirements satisfied, it may grant appropriate injunctive relief. Of course, a district court should approach issuance of injunctive orders with the usual caution, and may, for example, exercise its discretion if appropriate by giving prison officials time to rectify the situation before issuing an injunction.
511 U.S. at 845-47 (internal quotations, citations, and footnote
omitted).
This court understands and shares the Supreme Court's view that
"a district court should approach the issuance of injunctive orders
with . . . caution." Id. at 846-47. Indeed, when asked during the
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pendency of the instant matter to mediate a case brought in response to the high number of suicides by mentally ill inmates in the custody of the DOC, this court:
informed the parties of its view that judges should become involved in the administration of prisons only as a last resort and then only to the most limited extent necessary. It urged the parties to develop a settlement that would be consistent with these principles or risk having any proposed resolution requiring judicial approval rejected by the court. Disability Law Ctr., 2012 WL 1237760, at *1 (footnote omitted). Like the district judge in Battista, this court has been "far from anxious to grant the relief sought" unnecessarily because of its strong preference for having prison officials discharge their duties by properly making decisions concerning the medical care inmates require. 645 F.3d at 455. However, beginning with hormone therapy, for more than a decade the DOC has refused to provide Kosilek with the medical care its doctors deemed necessary and prescribed. Although the court found Commissioner Maloney to have been motivated in part by concerns about cost and controversy, in Kosilek I the court did not find him deliberately indifferent in part because it found that he had not actually drawn the inference that Kosilek was at substantial risk of serious harm if he did not receive adequate treatment. See 221 F. Supp. 2d at 161, 189-192. In addition, the court found that, instructed as to his obligations by the decision in Kosilek I, the Commissioner was not likely to be indifferent to Kosilek's serious medical needs in the future. Id. at 193-95.
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The court's trust proved to be misplaced when Dennehy succeeded Maloney as Commissioner. In Kosilek I, "[t]he court fully accept[ed] Maloney's testimony that if the doctors from the University of Massachusetts who are engaged to provide mental health care to inmates decided to bring in a specialist to treat Kosilek, he would not interfere . . . Indeed, Maloney sincerely believe[d] that he ha[d] 'never in [his] career interfered with a doctor's order for treatment and [had] no intention of doing so in the future,' with regard to Kosilek or anyone else." Id. at 176.
However, as described earlier, immediately upon becoming Acting Commissioner Dennehy began interfering with the treatment prescribed by the specialists engaged by UMass. In an effort to ascertain whether Dennehy would refuse to permit Kosilek to have sex reassignment surgery if more fully informed, the court ordered her to read certain trial testimony. However, Dennehy persisted in denying Kosilek the treatment the DOC doctors had prescribed. In an attempt to determine whether the treatment advocated by Dr. Schmidt was, or was believed to be, within prudent professional standards, the court ordered Dr. Applebaum of UMass to provide his view on this question for the purpose of both the objective and subjective prongs of the deliberate indifference test. When Dr. Applebaum opined that Dr. Schmidt was not a prudent professional, the court appointed Dr. Levine as an impartial expert to assist it in deciding that question as it related to the objective prong of the test. When Clarke succeeded Dennehy as Commissioner, the court
118

ordered him to review the matter and state his position on whether
Kosilek would be provided sex reassignment surgery.
However, the DOC has persisted in presenting pretexts for
impermissible reasons for denying Kosilek the treatment its doctors
have prescribed. This is part of a pattern of unconstitutional
conduct by the DOC with regard to transsexual prisoners that has
been demonstrated in other cases. See Battista, 645 F.3d at 455
("In the end, there is enough in this record to support the district
court's conclusion that 'deliberate indifference' has been
established – or an unreasonable professional judgment exercised –
even though it does not rest on any established sinister motive or
'purpose to do harm.'"); Soneeya, 2012 WL 1057625, at *17 ("[G]iven
the DOC's long history of obstruction and delay, it is likely that
the DOC will persist in not providing Ms. Sooneya with an
individualized evaluation by a qualified medical professional.")24;
24In Soneeya, the court was addressing, in part, a policy the DOC adopted in 2010 which categorically prohibits sex reassignment surgery because of "overwhelming safety and security concerns." 2012 WL 1057625, at *8. As demonstrated, such concerns are pretextual and do not exist in Kosilek's case. The DOC policy described in Soneeya is just the type of categorical approach to denying treatment that this court found to be unlawful in Kosilek I, 221 F. Supp. 2d at 171, 186-87, and the Seventh Circuit condemned in Roe, 631 F.3d at 862-63. The fact that the DOC adopted this categorical prohibition after the decision in Kosilek I and the trial of this case reinforces the court's conclusion that it is not appropriate to give prison officials further time to rectify the situation before issuing an injunction. See Farmer, 511 U.S. at 847.
Kosilek filed a motion to supplement the record with and/or take judicial notice of the DOC's 2010 policy, published as 103 DOC 652 on the DOC's website, on gender identity disorder. See
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Brugliera 2009 U.S. Dist. Lexis 131002, at *26, *33 (granting
preliminary injunction after finding that purported security
concerns about providing hormones were pretextual and stating that,
"given that [the DOC] has demonstrated no willingness to consider
abiding by the treatment advice of the DOC's medical professionals
for over three-and-a-half years now, the court sees no reason to
believe that the [DOC's] deliberate indifference is likely to cease
in the future").
In these circumstances, even without regard to the DOC's
conduct in other cases, the court is persuaded that defendant's
violation of Kosilek's Eighth Amendment rights will continue in the
future unless the court grants Kosilek relief now. This court
believes deeply in the principle of judicial restraint. However,
as explained earlier, the Supreme Court has instructed that, "a
policy of judicial restraint cannot encompass any failure to take
Feb. 2, 2010 Plaintiff's Mot. to Supplement the Record or in the Alternative Request for Judicial Notice. The defendant did not file an opposition. The policy is admissible under the public records exception to the hearsay rule. See Fed. R. Evid. 803(8).
In addition, the court may take judicial notice of the policy, as a record of a state agency not subject to reasonable dispute, see Brown, 422 F.3d at 931 n.7, or as a state regulation, see Getty, 391 F.3d at 325 n.19 (Lipez, J., concurring). However, while the 2010 policy prohibiting sex reassignment surgery for inmates is consistent with the court's conclusion that the DOC will not provide the prescribed treatment for Kosilek in the future without a court order, the court has not relied upon it in reaching its factual and legal conclusions, largely because it has not heard any testimony concerning that policy.
120

cognizance of valid constitutional claims whether arising in a
federal or state institution." Procunier, 416 U.S. at 405.
Therefore, an appropriate injunction must issue.
The PLRA establishes the proper scope of injunctive relief.
See 18 U.S.C. §3626. It provides, in part, that:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. §3626(a)(1)(A).
The federal right violated in the instant case is Kosilek's
Eighth Amendment right to the only adequate treatment for his
serious medical need, sex reassignment surgery. Therefore, the DOC
is being ordered to provide Kosilek that treatment. The court finds
that there is no less intrusive means to correct the prolonged
violation of Kosilek's Eighth Amendment right to adequate medical
care.
In part because of the requirement that prospective relief be
narrowly drawn, the court is not deciding who should perform the
necessary surgery or where it should be done. That is up to the
DOC.
121

Similarly, the court is not now deciding where Kosilek should be incarcerated after the surgery. The DOC has the discretion to make good faith, reasonable decisions concerning security if the surgery genuinely creates or increases any risk to Kosilek or others. If the DOC decides that Kosilek must be segregated and locked up 23 hours a day to reasonably assure his safety, it is foreseeable that the court may be asked to decide whether that decision is reasonable and made in good faith. See Battista, 645 F.3d at 454. That issue, however, is not now ripe for resolution.
Rather, the court is issuing only an injunction that is narrowly drawn, extends no further than necessary to correct the continuing violation of Kosilek's Eighth Amendment right to adequate medical care for his serious medical need, and is the least intrusive means necessary to correct the violation of that right. See 18 U.S.C. §3626(a)(1)(A). It is doing so after carefully considering the defendant's purported security concerns and finding that with regard to Kosilek they are either pretextual or can be dealt with by the DOC. The court is allowing the DOC to decide how any real security issues, or other issues, should be addressed. Id. Therefore, the injunction being issued satisfies the requirements of the PLRA.
IV. ORDER In view of the foregoing, it is hereby ORDERED that: 1. Judgment shall enter for plaintiff Michelle Kosilek. 122

2. Defendant shall take forthwith all of the actions reasonably necessary to provide Kosilek sex reassignment surgery as promptly as possible.
3. The possible award of reasonable costs and attorneys fees, pursuant to 42 U.S.C. §1988, is reserved for future consideration.
/s/ MARK L. WOLF UNITED STATES DISTRICT JUDGE
123

 
 Neutral As of: March 31, 2014 11:01 PM EDT

Kosilek v. Spencer

United States District Court for the District of Massachusetts November 20, 2012, Decided; November 20, 2012, Filed C.A. No. 00-12455-MLW

Reporter: 2012 U.S. Dist. LEXIS 165852

MICHELLE L. KOSILEK, Plaintiff, v. LUIS S. SPENCER, in his official capacity as Commissioner of the Massachusetts Department of Correction, Defendant.

WOLF, D.J.
For the reasons described in detail in court on November 20, 2012, it is hereby ORDERED that:

1. Plaintiff Michelle Kosilek’s Motion to Amend Judgment (Docket No. 568) is DENIED. The denial is, however, without prejudice to the filing of a new case concerning electrolysis based on current circumstances if they involve a material change in the relevant facts. See, e.g., South Boston Allied War Veterans Council v. The City of Boston, 875 F. Supp. 891, 907-10 (D. Mass. 1995).

Counsel: [*1] For Michelle Kosilek, Plaintiff: Frances S. Cohen, LEAD ATTORNEY, Bingham McCutchen LLP, Boston, MA; Joseph L. Sulman, LEAD ATTORNEY, Law Office of Joseph L. Sulman, Esq., Boston, MA; Christina Y. Chan, Jared A. Craft, Bingham McCutchen LLP - MA, Boston, MA.
For Department of Correction for the State of Massachusetts, Luis S. Spencer, Commissioner of the Department of Corrections, Defendants: Joan T. Kennedy, LEAD ATTORNEY, Department of Correction, Boston, MA; Richard C. McFarland, LEAD ATTORNEY, Commonwealth of Massachusetts, Department of Correction, Boston, MA.
For Does 1 through 100, Defendant: Joan T. Kennedy, LEAD ATTORNEY, Department of Correction, Boston, MA.
Christine M. Alexander, Movant, Pro se.
Judges: MARK L. WOLF, UNITED STATES DISTRICT JUDGE.
Opinion by: MARK L. WOLF
Opinion
ORDER

2. [*2] Defendant Luis S. Spencer’s Motion to Stay Execution of Final Judgment Pending a Decision on Defendant’s Appeal (Docket No. 561) is ALLOWED on the following conditions imposed pursuant to Federal Rule of Civil Procedure 62(c):
a) Defendant shall take forthwith all of the actions reasonably necessary to provide Kosilek sex reassignment surgery as promptly as possible if the September 4, 2012 decision ordering such treatment is affirmed.
b) Defendant shall, on the last day of each month, file under seal a report describing the actions he has taken, and any progress he has achieved, in preparation to provide Kosilek sex reassignment surgery promptly if the September 4, 2012 decision is affirmed. Unless otherwise ordered, each such report shall be served on Kosilek’s counsel. Each report, and the information it contains, may be provided by counsel to Kosilek and those assisting counsel in this case, and may be used solely for the purpose of monitoring and litigating matters in this case. Any disclosure of a report or the information that it contains which is not authorized by this Order may be deemed a civil and/or criminal contempt.
3. The parties shall, by December 7, 2012, supplement their [*3] submissions concerning Plaintiff’s Motion for

2012 U.S. Dist. LEXIS 165852, *3

Page 2 of 2

Award of Fees and Costs, addressing at least the issues described by the court at the November 20, 2012 hearing.
4. A hearing at which the court intends to decide orally Kosilek’s motion for attorneys fees and costs shall be held on December 19, 2012, at 3:00 p.m.

wish to discuss issues concerning the implementation of the court’s orders or other matters. For planning purposes, defendant shall, by December 17, 2012, inform the court of whether Spencer, or any other representative(s) or of the Commonwealth of Massachusetts, will attend the December 19, 2012 hearing.

Spencer and/or other representatives of the /s/ Mark L. Wolf Commonwealth of Massachusetts are invited, but not
ordered, to attend the December 19, 2012 hearing if they UNITED STATES DISTRICT JUDGE

 
 United States Court of Appeals
For the First Circuit
No. 12-2194
MICHELLE KOSILEK,
Plaintiff, Appellee,
v.
LUIS S. SPENCER, Commissioner of the Massachusetts Department of Correction,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta, Circuit Judges.
Richard C. McFarland , Legal Division, Department of Correction, with whom Nancy Ankers White , Special Assistant Attorney General, was on brief, for appellant.
Frances S. Cohen , with whom Jeff Goldman , Christina Chan , Bingham McCutchen LLP , Joseph L. Sulman , David Brody , and Law Office of Joseph L. Sulman, were on brief, for appellee.
Andrew D. Beckwith on brief for the Massachusetts Family Institute, amicus curiae in support of appellant.
Cori A. Lable, Daniel V. McCaughey, Kristin G. Ali, and Ropes & Gray LLP on brief for World Professional Association for Transgender Health, Mental Health America, Callen-Lorde Community Health Center, Whitman-Walker Health, GLMA: Health Professionals Advancing LGBT Equality, and Mazzoni Center, amici curiae in support of appellee.
Joshua Block, Matthew R. Segal , and David C. Fathi on brief

for American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Legal Aid Society, Harvard Prison Legal Assistance Project, Prisoners' Legal Services of New York, and Prisoners' Legal Services of Massachusetts, amici curiae in support of appellee.
Jennifer Levi and Bennett H. Klein on brief for Gay & Lesbian Advocates & Defenders, EqualityMaine, Human Rights Campaign, MassEquality, Massachusetts Transgender Political Coalition, National Center for Transgender Equality, National Gay & Lesbian Task Force, and Transgender New Hampshire, amici curiae in support of appellee.
January 17, 2014
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THOMPSON, Circuit Judge . Twenty years after prison inmate Michelle Kosilek first requested treatment for her severe gender identity disorder, the district court issued an order requiring the defendant, Luis S. Spencer, Commissioner of the Massachusetts Department of Correction (the "DOC"), 1 to provide Kosilek with sex reassignment surgery. The court found that the DOC's failure to provide the surgery — which was said by a group of qualified doctors to be medically necessary to treat Kosilek's condition — violated Kosilek's Eighth Amendment rights. The DOC appeals the district court's order. Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court.
I. BACKGROUND A. Gender Identity Disorder and Sex Reassignment Surgery
The concepts of gender identity disorder and sex reassignment surgery sit center stage in this case and feature prominently in this opinion. Therefore, before we go any further, we provide a little context. As this court has explained, gender identity disorder is "a psychological condition involving a strong identification with the other gender." Battista v. Clarke , 645 F.3d 449, 450 (1st Cir. 2011). It is a disorder recognized by the American Psychiatric Association, which describes gender identity
1 For ease of reference we will speak of the defendant as the DOC, since the DOC's commissioner has changed multiple times during the life span of Kosilek's lawsuits.
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disorder as having two components. American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition - Text Revision 576 (2000) ("DSM-IV-TR").2 The first is "evidence of a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex." Id. The second is "evidence of persistent discomfort about one's assigned sex or a sense of inappropriateness in the gender role of that sex." Id.
This current diagnosis of gender identity disorder grew out of an earlier diagnosis of transsexualism, which first appeared as an official disorder in the third edition of the DSM, published in 1980. Judith S. Stern & Claire V. Merkine, Brian L. v. Admin. for Children's Services: Ambivalence Toward Gender Identity Disorder as a Medical Condition, 30 Women's Rts. L. Rep. 566, 56768 (2009). In the 1950s and 1960s, research began to show that a "combination of psychotherapy, hormone treatment, and surgical reconfiguration of the genitalia" could be used to treat gender identity disorder. Id. at 571. This idea gained traction in the 1960s and 1970s, id., and as we will discuss more fully below, this

2 DSM-IV-TR, the version applicable in Kosilek's cases, uses

the term gender identity disorder. A newer edition, DSM-5, was

released in May 2013. DSM-5 replaces the term gender identity

disorder with gender dysphoria to avoid any negative stigma. See

American

Psychiatric

Ass'n,

Gender Dysphoria ,

http://www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf

(last visited Jan. 16, 2014). Because the term gender identity

disorder was used throughout Kosilek's cases and was the then-

appropriate nomenclature, we will use that term.

-4-

triadic approach is still utilized by many practitioners today. Sex reassignment surgery in particular has been performed in North America since at least the 1950s, and it has been estimated that as of January 2006, 30,000 sex reassignment surgeries have been performed in the United States. Id. at 571-72.
With this bigger picture in place, we move on to the facts of this case. We again note that this case has an over twenty-year history. This has included two trials and two lengthy, fact-intensive decisions issued by the district court, the latter of which is the subject matter of this appeal. Because of this, and because the district court's opinion was so fact-intensive, it is necessary for us to lay out a good deal of background.
B. Kosilek's Conviction Michelle Kosilek, née Robert, who is sixty-four years old, was born and still is anatomically male. Kosilek suffers from gender identity disorder. This has resulted in Kosilek's long-held belief that she3 is a woman cruelly trapped in a man's body. Kosilek, who spent some of her childhood in an orphanage, suffered regular abuse as a child, in part because of her expressed desire to live as a girl. As she grew older, she alternated between living as a man and a woman. Kosilek's teenage and early
3 We will refer to Kosilek as her preferred gender of female, using feminine pronouns.
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adult years were marred by arrests, incarcerations, beatings, heavy drinking, drug use, and a stint as a prostitute.
Sometime in the 1980s, Kosilek married Cheryl McCaul, a volunteer counselor at a drug rehabilitation facility, who Kosilek met while being treated there. McCaul thought she could cure Kosilek's gender identity disorder, but Kosilek's desire to be female did not go away. In 1990, Kosilek murdered McCaul. Kosilek fled the area but was ultimately apprehended in New York.
Kosilek awaited trial at the Bristol County Jail. While there, Kosilek, who had taken female hormones many years earlier, started taking female hormones (in the form of birth control pills) that she illicitly obtained from a guard. She also, at her own expense, consulted with a gender identity disorder specialist, though she was not allowed to undergo any treatment. While awaiting trial, Kosilek twice tried to kill herself; one attempt was made while she was taking the antidepressant Prozac. Kosilek also attempted self-castration.
Kosilek was eventually tried and, in 1992, was convicted of McCaul's murder and sentenced to life in prison without the possibility of parole. She was turned over to the DOC and since 1994 has been residing in the general population at MCI-Norfolk, a medium security male prison. There Kosilek started living, to the extent possible, as a woman, legally changing her name from Robert to Michelle.
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C. Kosilek's Lawsuits In 1992, Kosilek filed a pro se complaint against the DOC in the United States District Court for the District of Massachusetts.4 See Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002) ("Kosilek I"). Kosilek alleged the DOC was denying her adequate medical care in violation of the Eighth Amendment. Kosilek sought damages and an injunction ordering that she be provided with sex reassignment surgery. The case was assigned to Judge Mark L. Wolf, and proceeded for some years with the parties engaging in discovery and motion practice. Meanwhile, in December 2000, having not yet received the relief she was seeking, Kosilek filed this case — a second pro se lawsuit against the DOC and some of its medical providers. See Kosilek v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012) ("Kosilek II"). Again the gravamen of Kosilek's complaint was that the DOC was denying her adequate medical care in violation of the Eighth Amendment by not providing her with sex reassignment surgery. This case also went to Judge Wolf. In February 2002, Kosilek's first lawsuit, Kosilek I , finally proceeded to a non-jury trial. Due to some pretrial skirmishing, only Kosilek's claim for injunctive relief remained (her damages claim was gone). The trial lasted a couple of weeks.
4 Kosilek initially sued the Bristol County Sheriff, but later amended the complaint to include the DOC after she was transferred to its custody.
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D. The Kosilek I Decision
On August 28, 2002, Judge Wolf issued his decision. See
Kosilek I, 221 F. Supp. 2d at 156. The court explained that to
make out an Eighth Amendment violation, both an objective and a
subjective component must be satisfied. In short, the objective
component requires that the inmate has a serious medical need that
has not been adequately treated. The subjective piece, on the
other hand, focuses on the state of mind of the prison officials
and requires that they were aware the inmate was at risk for serious harm.5
The court found that Kosilek suffered from a severe form
of gender identity disorder that caused her great mental anguish.
It went on to hold that this disorder was a serious medical need
within the meaning of the Eighth Amendment. To address the issue
of what types of treatment might be warranted, the court looked to the Harry Benjamin Standards of Care (the "Standards of Care"), 6
which it found to be the accepted protocols used by professionals
5 We will go into much greater depth regarding the Eighth Amendment standard in our own analysis, but for now it suffices to introduce the concept of the two-pronged test.
6 The operative version of the Standards of Care for both Kosilek I and Kosilek II is the Sixth Version, issued in February 2001. See Harry Benjamin Int'l Gender Dysphoria Ass'n, Standards of Care for Gender Identity Disorders, Sixth Version (2001). The Seventh Version came out in 2011 under a new name. World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People, Version 7 (2011) (the "Standards of Care, Version 7").
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in the United States to treat gender identity disorder. The Standards of Care indicated that, depending on the severity of an individual's gender identity disorder, psychotherapy alone or psychotherapy along with the administration of female hormones could constitute sufficient treatment. In other instances, however, sex reassignment surgery was medically necessary. The court found that, despite DOC doctors recommending that Kosilek receive female hormones and possibly surgery, the DOC, which at the time was headed up by Commissioner Michael Maloney, had not provided Kosilek with any of the treatment prescribed by the Standards of Care.
The court chronicled the steps taken by Maloney to avoid providing Kosilek with treatment. First, when an expert hired by the DOC, Marshall Forstein, M.D., recommended psychotherapy and hormones for Kosilek, and also, that she be allowed to consult with a surgeon who specialized in sex reassignment surgery, the DOC terminated its relationship with Dr. Forstein. Maloney then made it clear to DOC doctors that he did not want to provide Kosilek or any transgender prisoner with hormones or surgery, and the DOC proceeded to find a Canadian doctor, Robert Dickey, M.D., who believed inmates should never be considered for sex reassignment surgery. Dr. Dickey advocated a "freeze-frame" policy whereby transgender individuals would be frozen in the frame in which they entered prison. For instance, only persons receiving hormones
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before they were in prison would get hormones in prison. Despite Maloney having little familiarity with the rationale behind Dr. Dickey's philosophy on the treatment of gender identity disorder, and not having read the Standards of Care, Maloney adopted Dr. Dickey's freeze-frame policy for the DOC.
Dr. Dickey testified at trial, but the court did not find him persuasive because he did not subscribe to the Standards of Care, which the court found that prudent professionals follow, and his approach did not allow for individual assessment. The court found Kosilek's experts credible and relied on their testimony to find that the objective component of the Eighth Amendment had been satisfied, namely that Kosilek had a serious medical need that had not been adequately treated.
But the court found Kosilek had fallen short of establishing an Eighth Amendment violation because the subjective component of deliberate indifference had not been satisfied. Maloney, the court concluded, knew many facts from which he could have inferred Kosilek would suffer serious harm if her gender identity disorder was not treated, but he did not actually draw that required inference. Instead Judge Wolf found Maloney's refusal to allow Kosilek treatment was "rooted in sincere security concerns, and in a fear of public and political criticism as well." The end result: because there was no Eighth Amendment violation, the court did not order the DOC to do anything.
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Nonetheless, Judge Wolf expected it would do something. He wrote: "This court's decision puts Maloney on n otice that Kosilek has a serious medical need which is not being properly treated. Therefore, he has a duty to respond reasonably to it. The court expects that he will."
E. The After-Effects of Kosilek I Following the court's dictate, lots of activity ensued at the DOC. First, the DOC lifted its freeze-frame policy around December 2002. In its place went a policy allowing inmates suffering from gender identity disorder to receive a level of treatment commensurate with that which they were receiving upon entering prison (including receipt of hormones), but also providing for increased or decreased treatment if it was determined to be medically indicated by the University of Massachusetts Correctional Health Program ("UMass"), the entity under contract with the DOC to provide medical (including mental health) services to all inmates. Prior to the implementation of any progressive or regressive treatment changes, the DOC's Director of Health Services and the Commissioner were required to consider whether the changes would result in any safety or security concerns. A couple of months later, in February 2003, the DOC brought in a gender identity specialist, David Seil, M.D., to
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evaluate Kosilek.7 Dr. Seil interviewed Kosilek and reviewed her
medical records, and then conveyed his findings and recommendation
in writing. Per DOC policy, which required any recommendations
involving gender identity disorder to go to both UMass's Medical
Director and its Mental Health Program Director, the report went to
Kenneth Appelbaum, M.D., who held the latter position.
Dr. Seil wrote the following. Like Drs. Forstein and
Dickey before him, he diagnosed Kosilek with gender identity disorder. He found Kosilek's "gender dysphoria 8 intense," and
though Kosilek had done what she could to obtain relief by living
as a woman, her basic disorder had been left untreated during her
incarceration. Dr. Seil, who noted that Kosilek had been living as
a woman in a male prison without security issues thus far,
indicated that the Standards of Care "need[ed] to be observed." He
further found that Kosilek was not currently suicidal because she
then felt some power over her pursuit of becoming a woman.
7 UMass's policy was to utilize consultants in matters that went beyond the expertise of its direct staff.
8 Dr. Seil, and various other medical providers involved in this case, sometimes use the term gender dysphoria. As indicated previously, the American Psychiatric Association now uses this term in place of gender identity disorder. The current version of the Standards of Care says gender dysphoria is "broadly defined as discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth." Standards of Care, Version 7, at 2. It is not certain whether the medical providers in this case were all using the term gender dysphoria to mean precisely the same thing but, at a minimum, it appears they were all using it similarly.
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Dr. Seil made several recommendations. First, Kosilek should be provided with estrogen therapy, electrolysis (specifically, permanent facial hair removal), and access to gender-appropriate personal items, such as female clothing and make-up. Additionally, Kosilek should be allowed to see the therapist she had been treating with, master's-level psychologist Mark Burrowes, more often than once a month. Further, feminizing procedures, such as rhinoplasty (plastic surgery performed on the nose) or breast augmentation, should be considered in the future. Finally, Dr. Seil noted that sex reassignment surgery was the last step in treating gender identity disorder. He explained that, as provided in the Standards of Care, an evaluation of the necessity of the surgery must wait until after a patient has lived as a woman for at least a year.9 While Kosilek had been living as a woman for many years, she had not had the benefit of hormone therapy and electrolysis. Therefore Dr. Seil recommended that after Kosilek had a year of hormone treatment under her belt, an experienced gender identity specialist should evaluate her to determine whether surgery was needed.
9 Dr. Seil was referring to the fact that the Standards of Care require that prior to receiving sex reassignment surgery, a person must live full-time for one year in the preferred gender role. This requirement is commonly called the real-life experience, and it is something we will discuss in more detail later.
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The DOC began implementing Dr. Seil's recommendations. In April 2003, Kosilek started treating with an endocrinologist to develop a hormone therapy treatment plan. Concomitantly, per DOC policy, the security implications of Kosilek receiving hormones were assessed. On July 29, 2003, Luis Spencer, now the DOC Commissioner but then the Superintendent of MCI-Norfolk, reported to then DOC Commissioner Maloney that he did not believe there were any current security concerns with Kosilek being provided estrogen therapy, but once Kosilek began to exhibit physical changes security concerns might have to be reevaluated.
And so on August 26, 2003, Kosilek began female hormone treatment. Then, starting in October 2003, Kosilek was provided with certain gender-appropriate items, such as female undergarments and make-up. As neither Dr. Seil nor the endocrinologist Kosilek was treating with had made specific recommendations as to whether feminizing procedures were needed, none were provided. The DOC did find a facility willing to provide Kosilek with electrolysis and, after a security review of the facility was conducted, electrolysis treatments were scheduled for November the following year.
In December 2003, Kathleen Dennehy, who had been the DOC's Deputy Commissioner under Maloney, was elevated to Commissioner. Right away she informed the staff she wanted to
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"regroup on this GID stuff."10 And she wanted Kosilek reevaluated before approving "laser hair removal or anything else."11
As of September 2004, Kosilek had been on hormones for a year and, pursuant to the Standards of Care and Dr. Seil's recommendation, was eligible to be evaluated for sex reassignment surgery. The issue of conducting evaluations for prisoners with gender identity disorder was taken up at executive staff meetings, attended by UMass and DOC personnel, around this time. Those typically in at tendance from the DOC included Susan Martin, the DOC's Director of Health Services, and Gregory Hughes, the DOC's Director of Mental Health and Substance Abuse Services, as well as a couple other DOC officials. Representing UMass was its Mental Health Program Director Dr. Appelbaum, along with some additional UMass personnel.
At one meeting, Dr. Appelbaum spoke about retaining the Fenway Community Health Center (the "Fenway Center"), a Boston healthcare facility focused on serving the lesbian, gay, bisexual, and transgender community. Hughes, however, had some reservations; he felt the Fenway Center might be too sympathetic to the prisoners and too quick to recommend treatment. Dr. Appelbaum countered, stating the Fenway Center's approach represented the norm rather
10 "GID" is an acronym for gender identity disorder. 11 It is unclear from the record what happened, if anything, based on Dennehy's desires to regroup and reevaluate.
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than the exception and there really were not many other providers in the area with whom to consult. Hughes said he had spoken with a Johns Hopkins gender identity specialist, Cynthia Osborne, a licensed social worker, who was working with the Virginia and Wisconsin departments of corrections, which had also been sued by transgender prisoners. It was noted on the meeting minutes that Osborne "may do more objective evaluations," and was "[m]ore sympathetic to DOC position."
Despite Hughes's qualms about the Fenway Center and the possible option of using Osborne, the DOC went ahead with retaining the Fenway Center. Kosilek was evaluated by Kevin Kapila, M.D., and Randi Kaufman, Psy.D., who conducted a ninety-minute interview with her and reviewed her medical records. The doctors issued their report with several findings on February 24, 2005 (the "Fenway Report"). As had been documented in the past, Kosilek "clearly fit[]" the diagnosis for gender identity disorder. Kosilek had been on hormone therapy and living full-time as a woman for seventeen months by that time. Kosilek's ability to live as a woman, her good behavior, and her absence of conflict with others, suggested, according to the doctors, an "intense motivation, as well as a real adaptability to her environment." They noted her favorable response to the use of hormones, electrolysis, and use of feminine products. But, they noted, Kosilek was still "quite distressed," and given Kosilek's "previous suicide attempts, her
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ongoing distress, and lack of other goals in her life," the doctors found it was quite likely Kosilek would attempt suicide again if she was not provided with sex reassignment surgery. Kosilek had a serious medical need, they felt, and there was a substantial risk of harm if her disorder was left untreated.
The report went on to note that Kosilek had moved successfully through the steps outlined in the Standards of Care, there had not been any adv erse reactions to Kosilek's feminized appearance, and Kosilek had benefitted psychologically from her changes. Drs. Kapila and Kaufman concluded Kosilek was likely ready for sex reassignment surgery. The surgery, the doctors opined, would provide Kosilek with full relief from the symptoms of gender identity disorder and likely increase her chance of survival. The ultimate recommendation of the specialists retained by the DOC as advised by its own doctors: Kosilek should be given the surgery.
Unhappy with the Fenway Report, the DOC turned to the Johns Hopkins gender identity specialist, Cynthia Osborne, whose name had been batted around at the earlier DOC meeting. The DOC asked Osborne to conduct a peer review 12 of the Fenway Report and
12 Peer review is the term used by the DOC — we presume because social worker Osborne was tasked primarily with reviewing the recommendation of her so-called peers, the Fenway Center doctors, as opposed to interviewing Kosilek and conducting an independent assessment.
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she agreed. The report, along with other evaluations conducted of Kosilek, were sent to Osborne on April 12, 2005.
In the meantime, on April 15, 2005, Dr. Appelbaum, who at the time was a defendant in this lawsuit along with UMass and some other doctors, filed (at the district court's request) a status report. It advised the court of Drs. Kapila and Kaufman's sex reassignment surgery recommendation for Kosilek. Dr. Appelbaum also said he had advised the DOC of the doctors' recommendation and had informed them he was unaware of any medical reason why Kosilek should not receive the surgery.
The court responded with an April 25, 2005 order directing the DOC to provide a report addressing potential security concerns should Kosilek undergo the surgery. It also directed the DOC to indicate whether it was going to provide Kosilek with the surgery recommended by the Fenway Center doctors.
A few days later, on April 28, 2005, the DOC responded to the UMass status report. The letter was penned by Susan Martin (recall she was the DOC Director of Health Services) and sent to Dr. Appelbaum and UMass's Medical Director, Arthur Brewer, M.D. (also a defendant). Dennehy and other DOC officials were copied. Martin maligned Dr. Appelbaum's status report, asserting that the DOC did not consider it an adequate review of the Fenway Report or a clear explanation of UMass's recommendation. Martin requested that the UMass doctors make clear whether they thought Kosilek
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should be operated on. She also wanted answers to various questions relating to, among other things, the surgery's logistics, such as who would perform it, the recovery process, and the success rate.
Drs. Appelbaum and Brewer, in a May 10, 2005 response letter to the DOC, clarified their stance on the Fenway Report. As they explained, UMass deferred to the Fenway Center and stood behind the doctors' sex reassignment surgery recommendation for Kosilek. They were aware of no mental health barriers to Kosilek being operated on and the next step was finding a surgeon. It appeared there were no physicians in Massachusetts who could perform the surgery, so some out-of-state practitioners were suggested. The doctors also offered to look into the logistics of providing the surgery.
In the interim, Osborne completed her review of the Fenway Report.13 She chronicled her findings in a report dated May 20, 2005, which she sent to the DOC. It began with the caveat that Osborne had not conducted a clinical evaluation of Kosilek and her report was based solely on her review of the Fenway Report and some of the other evaluations of Kosilek. Though she did not doubt

13 We pause to say

a little more about Osborne's

qualifications. According to her C.V., at least as of 2006, she

held a master's degree in education and social work. Osborne was

also an assistant professor of psychiatry at Johns Hopkins

University School of Medicine and on the consulting faculty of the

University's Center for Sexual Health and Medicine.

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Kosilek met the criteria for gender identity disorder, Osborne went on to lodge numerous criticisms against Drs. Kapila and Kaufman's approach.
First, Osborne disparaged the Fenway Report for not addressing the issue of whether Kosilek was suffering from any personality disorders. She opined that "[c]larity regarding the presence, absence, nature and severity" of any personality disorder, especially given that clinicians had at one point diagnosed Kosilek with antisocial personality disorder, was critical because its presence could complicate a gender identity disorder diagnosis. Osborne also argued that threats of suicide and self-harm signal serious mental illness apart from gender identity disorder, which demands treatment and, in fact, counsels against providing sex reassignment surgery. She thought the Fenway Report had given short shrift to this issue.
Osborne then turned her focus to the Standards of Care, expressing her concerns that they did not translate well into a prison environment. She wrote: "In my view, providing surgery, or even hormones, to incarcerated individuals, is an undeniable lowering of the Standards, and an explicit violation of the criteria regarding sociopathy and suicidality." While Osborne recognized the Standards of Care as helpful, she noted they had no regulatory authority. Also, there was no universal consensus in the psychiatric community about what constituted medical necessity
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in the treatment of gender identity disorder. She criticized the Fenway Report for failing to address other possible treatment options for Kosilek or to provide an adequate explanation for its surgery recommendation. Kosilek, in Osborne's eyes, had an unrealistic expectation that she was owed certain treatments and Kosilek would instead benefit from a thorough assessment for psychiatric disorders and treatment designed to address any such disorders along with her gender identity disorder.
On May 25, 2005, the back and forth between the DOC and UMass continued. Martin sent Drs. Appelbaum and Brewer another criticism-laced letter. While the doctors had answered some of the DOC's questions, they had not provided a comprehensive review of the appropriateness or necessity of surgery for Kosilek. Citing the DOC's Eighth Amendment obligations, Martin lamented that neither UMass nor the Fenway Report had offered guidance on whether surgery was "a medical necessity for Kosilek." Finally, Martin informed them of the DOC's engagement of Osborne to review the Fenway Report and enclosed a copy of Osborne's report. Martin asked UMass to review the report and give the DOC its ultimate recommendation as to the appropriateness of surgery for Kosilek.
The same day Martin fired off her letter, a news piece, which was highly negative toward Kosilek and her quest for surgery, appeared on a local television station. Commissioner Dennehy had been interviewed for the piece on May 16, and one of her comments
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made it on air. 14 A Massachusetts state senator, who had filed legislation seeking to prohibit the state from paying for sex reassignment surgery for inmates, also spoke to the reporter. "When you go to prison you lose some rights. You also lose your rights to get a sex change operation," he stated. The senator, who was an acquaintance of Dennehy, had called Dennehy on her cell phone to advise her that he would be participating in the news piece. The piece concluded with the reporter indicating: "Later this week, the state will tell the federal court that sex surgery for Michelle Kosilek would result in a security nightmare."15
Despite the security concerns the DOC expressed to the media, Dennehy and her staff had yet (as of the time she was interviewed) to officially convene to conduct their internal security review. Not until May 19, three days after her interview, did they actually meet. In attendance were Dennehy, DOC counsel, Superintendent Spencer of MCI-Norfolk, and Superintendent Lynne Bissonnette of MCI-Framingham, the women's prison where Kosilek might be sent were she to undergo surgery. Dennehy did not have the benefit of written reports from Spencer or Bissonnette, despite
14 She was quoted: "The courts are telling us that medical professionals make medical recommendations and correctional administrators assess the safety and security concerns."
15 It seems likely that the reporter learned this information from Dennehy herself, though it is unclear whether it could have come from someone on her staff. Either way the DOC does not dispute that this tidbit came from within the DOC.
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DOC policy calling for the superintendents to make such recommendations, because (as Dennehy later testified) the security concerns seemed self-evident.
On June 10, 2005, the DOC brought the court back into the loop, finally filing the status report which the court had ordered back on April 25. The DOC informed Judge Wolf it had decided not to provide Kosilek with sex reassignment surgery. In support of its decision, the DOC attached Osborne's report. It also attached the court-ordered security report, which was principally authored by DOC attorneys with input from Dennehy.
The security report, which said it was based on Dennehy's thirty years of correctional knowledge and experience, as well as the experience of colleagues she had spoken with, stated the following. Allowing the surgery to go forward "would create substantial safety and security problems for DOC." She claimed that out-of-state surgery, which appeared to be the only option based on a dearth of doctors in Massachusetts, would cause "complex security and logistical issues" and might give Kosilek a chance to escape custody. Kosilek's post-surgery confinement was also a cause for concern. Dennehy argued Kosilek would be at risk for sexual assault if she were to remain in a male prison, and housing her in a female prison would come with its own host of problems. Specifically, Dennehy anticipated "serious climate issues" since the majority of the women at MCI-Framingham had histories of trauma
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and it was well known that Kosilek had killed her wife. The women might pose a threat to Kosilek and vice versa. Kosilek would need to be isolated and restrictively confined in either prison and this, Dennehy concluded, might be deleterious to Kosilek's mental health. Citing these concerns, along with what she perceived as an unclear stance from UMass on whether surgery was necessary,16 and given Osborne's critiques of the Fenway Report, Dennehy indicated that the DOC was denying Kosilek's request for surgery.
After the status report was filed with the court, the DOC and UMass continued to clash over what the DOC perceived to be UMass's equivocations. Drs. Appelbaum and Brewer directed a June 14, 2005 letter at the DOC. Calling the DOC's statements in its previous letters and status report "disingenuous," the doctors emphasized that it was not within their purview to decide whether surgery is medically necessary for Kosilek as that term is contemplated by the Eighth Amendment. UMass, they explained, had consistently relied on the expertise of outside consultants, all of whom had said the same thing. The doctors again underlined that solely from a clinical perspective it appeared that Kosilek should be offered surgery.
16 The report quoted the supposedly ambiguous language from UMass's letter: "the treatment recommended in the Fenway report . . . appears to be reasonable and appropriate, since the patient has met criteria for the diagnosis of gender identity disorder and has reached a point in clinical treatment where sexual reassignment surgery, if desired, would be the next step."
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On October 7, 2005, Drs. Kapila and Kaufman prepared and issued another report, this one a response to Osborne's critiques of their Fenway Report, which they sent to UMass and which UMass passed on to the DOC. Citing medical literature and studies, the doctors took aim at Osborne's criticisms, explaining why her challenges to their recommendation for surgery were clinically unfounded or irrelevant. The report also argued that Kosilek was stable, not currently suicidal, and a good candidate for surgery. The doctors strenuously insisted that their recommendation of surgery was an informed clinical judgment rooted in Kosilek's gender identity diso rder diagnosis, her marked mental health improvement since being provided hormones and being allowed to live as a woman, and the well-documented effectiveness of surgery. The doctors reiterated their recommendation that Kosilek be provided with the surgery. Dr. Appelbaum submitted this report to the DOC on October 17, 2005, restating UMass's endorsement of the original Fenway Report's recommendations and requesting that the DOC issue a decision approving those recommendations.
As to the status of Kosilek's lawsuit, as of July 2005, Kosilek had let all the medical provider defendants (Drs. Appelbaum and Brewer, and UMass, among others) out of the case. That same month she filed an amended complaint, this time with the benefit of an attorney, with Dennehy as the sole named defendant. Kosilek no longer sought damages, she only requested injunctive relief
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requiring the DOC to provide her with adequate medical care, including sex reassignment surgery. The case went to trial a little less than a year later.
F. The Kosilek II Trial 1. Round One of Testimony The non-jury trial, which like Kosilek I was presided over by Judge Wolf (by then Chief Judge), began on May 30, 2006. Testimony initially went until the end of June, with multiple witnesses testifying.17 First the court heard from George Brown, M.D., a practicing psychiatrist who helped author the Standards of Care, and who testified as an expert on Kosilek's behalf (he also testified in Kosilek I). As he had done back in 2001, Dr. Brown evaluated Kosilek and reviewed her medical records. He prepared a written report, and in it diagnosed Kosilek with chronic and severe gender identity disorder. He did not think she met the criteria for antisocial personality disorder. Dr. Brown also did not think Kosilek was trying to game the system, writing that he was "hard pressed to develop a rational explanation for why someone would work so fervently to obtain this serious, painful surgery" other than as a means to treat gender identity disorder. Dr. Brown also opined that Kosilek had met or exceeded the readiness criteria for
17 We summarize the testimony in the order it was given, save for Dr. Schmidt. He actually testified before Kosilek finished putting on her witnesses (we assume for scheduling convenience).
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sex reassignment surgery. Among other things, she had completed a more than two-year monitored, real-life experience living as a woman while incarcerated. Further, he wrote, Kosilek had "received an unambiguous diagnosis of severe gender identity disorder from no fewer than nine mental health professionals who have interviewed her, many of whom are recognized international experts in the field of gender identity disorder." Dr. Brown stressed, "[n]o further treatment or real-life experience is necessary," and Kosilek should receive the surgery, which Dr. Brown deemed "medically necessary."
Hammering the point home, Dr. Brown testified, consistent with his written report, that the hormones and psychotherapy Kosilek was receiving, though they had helped relieve her dysphoria, were "[a]bsolutely not" sufficient to eliminate the serious risk of harm Kosilek faced, up to and including suicide. When asked whether sex reassignment surgery was medically necessary, Dr. Brown stated: "Absolutely. If I can walk away from these proceedings with one point being clear in people's minds, it's that." Without surgery, he added, "the degree of likelihood of [Kosilek] suffering serious medical consequences up to and including suicide are exceedingly high." As for antidepressants, they are for the treatment of patients with major depressive disorder, which Dr. Brown stressed Kosilek did not have. With regards to gender identity disorder, such antidepressant medications had been shown to be "very ineffective" as they might
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only slightly relieve some depressive symptoms but would not treat the underlying gender identity disorder. Only surgery, Dr. Brown testified, had the "significant potential" to cure Kosilek's medical condition.
Next came Dr. Kenneth Appelbaum's testimony. The Fenway Center doctors, he said, had significant experience in the area of gender identity disorder and were well-trained, credentialed, and knowledgeable. He thought their assessments were typically reasonable and consistent with the approaches followed by most other medical providers. In general, Dr. Appelbaum did not see why the DOC would need to consult with Osborne (an out-of-state, master's-level social worker) given that it had already received the recommendations of the Fenway Center doctors (a local physician and doctoral psychologist), who were, in Dr. Appelbaum's mind, highly experienced in dealing with gender identity disorder. As for Osborne, Dr. Appelbaum recalled that the DOC's Hughes had commented that she would be more sensitive to the DOC's concerns because she did not believe sex reassignment surgery was appropriate in the corrections setting. Finally, Dr. Appelbaum testified that from his conversations with Kosilek's treatment team at the prison, it was his understanding Kosilek had shown good adjustment being on hormones and receiving therapy.
Dr. Randi Kaufman from the Fenway Center then took the stand. She reiterated the conclusion she made in her report, in
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particular that Kosilek had successfully completed the real-life experience contemplated by the Standards of Care. She also testified that, to a reasonable degree of medical certainty, there was a "very high likelihood" Kosilek would attempt suicide if denied treatment for her gender identity disorder. Though Kosilek benefitted from being on hormones, Dr. Kaufman felt Kosilek had a level of gender identity disorder that could not be treated with anything less than surgery. "She's done all the things that people do to change their gender presentation," she said, and "[t]here really isn't anything left except for surgery." Kosilek had a medical need for the surgery.
Mark Burrowes, a licensed mental health counselor with a master's degree in counseling psychology, who had been treating Kosilek for four or five years, also testified. Kosilek, he agreed, was ready for sex reassignment surgery. Not having the surgery would be detrimental and could result in Kosilek making an attempt on her life. Suicide monitoring would not be an adequate alternative to surgery since Kosilek's male genitalia still caused her distress.
Finally, Michelle Kosilek was called by her attorneys. She spoke about her life at MCI-Norfolk. Generally she got along quite well with most of the people there, though a small percentage of the correction officers gave her a hard time. Kosilek had, since she got to prison, worked on a daily basis. She testified
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that the hormone treatments had made her a little less depressed but she continued to feel distress over her body. Kosilek, who said she was not currently suicidal, felt the hormones were not enough and she needed surgery. She did not want to continue living with her male genitalia and, if denied surgery, antidepressants and psychotherapy would not help matters.
The DOC then put on its case. First, Chester Schmidt, M.D., a psychiatrist at the Johns Hopkins School of Medicine, and associate director of the Johns Hopkins Center for Sexual Health and Medicine, testified as an expert for the DOC. He became involved in this case through his connection with Cynthia Osborne. As to his general approach for treating patients with gender identity disorder, Dr. Schmidt stated he does utilize the Standards of Care but thinks of them more as protocols or guidelines, as opposed to actual standards of care. He does not agree with the idea, set forth in the Standards of Care, that sex reassignment surgery is medically necessary in patients with severe gender identity disorder. In fact, Dr. Schmidt did not recall ever seeing a case where he thought surgery was medically necessary. It was his and his Johns Hopkins colleagues' practice to neither advocate nor speak against a patient's desire for surgery, but to leave it in the hands of the patient. He would not send a letter of recommendation to a surgeon on behalf of a patient, but he would
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release his file to the surgeon and simply indicate he saw no contraindications to surgery.
After giving his general overview, Dr. Schmidt turned his focus to Kosilek, whom he had personally evaluated in November 2005. Kosilek did meet the criteria for gender identity disorder, he concluded. However, Dr. Schmidt did not believe surgery was medically necessary as Kosilek, he theorized, had made an "excellent adaptation" without surgery thus far. He also felt the real-life experience contemplated in the Standards of Care was virtually impossible to replicate in prison. But besides this barrier, Dr. Schmidt admitted he did not see any contraindications to surgery. Should Kosilek become depressed if she did not receive the surgery, Dr. Schmidt thought she could be treated with antidepressants and psychotherapy, and managed in a medical facility should her suicidal desires become severe. This latter scenario was a possibility, as Dr. Schmidt recognized Kosilek's risk of suicide based on what she had said and done in the past. But, Dr. Schmidt opined, psych otherapy and medications could effectively reduce Kosilek's dysphoria to a level where she was no longer at risk for serious harm.
Next Cynthia Osborne, the Johns Hopkins social worker and DOC consultant, gave testimony echoing Dr. Schmidt. By the time of trial, she had met with and interviewed Kosilek. Osborne agreed with Kosilek's severe gender identity disorder diagnosis. Yet,
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like Dr. Schmidt, in general, she did not believe the real-life experience called for by the Standards of Care could happen in a prison environment. Also, Kosilek was not, in her opinion, a good candidate for sex reassignment surgery, nor was it medically necessary, because Kosilek had responded very well to hormone treatment. Rather, Osborne thought support groups or group therapy could be used to treat Kosilek effectively. Kosilek's threats of suicide if denied surgery did not change Osborne's mind on what treatment was warranted. Indeed, she minimized concerns about suicide by noting that any good mental health system would know how to deal with a patient's suicidality. Osborne, again like Dr. Schmidt, did not fully agree with the Standards of Care's statement that sex reassignment surgery is medically necessary in cases of severe gender identity disorder.
Luis Spencer, then still Superintendent of MCI-Norfolk, also testified for the DOC. He explained the set-up at MCINorfolk, describing it as having one of the more secure perimeters in Massachusetts. It is surrounded by walls on all sides, an electrified fence, and guard towers which are manned twenty-four hours a day, seven days a week. Approximately one-third of the inmates at MCI-Norfolk, Spencer explained, are serving a life sentence and one-third have committed sexual felonies.
Spencer also testified about Kosilek. She had adjusted fairly well to life at MCI-Norfolk and had not reported any threats
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or harassment from other inmates. As of the time of trial, no security concerns involving Kosilek had arisen; however, Spencer had some apprehension going forward should Kosilek receive the surgery. He would have "grave concerns" putting Kosilek back in the general population with the full anatomy of a female. Spencer worried that she could be raped or assaulted and he saw no alternative but to house her in the high-security Special Management Unit. This unit was a standalone secure building where Kosilek would remain in her cell twenty-three hours a day and could only leave when shackled and escorted by two guards. The questioning also briefly touched on Kosilek's threats of suicide were she not to receive the surgery. Spencer said his policy is not to negotiate with inmates who threaten suicide, as to do so would undermine his and the staff's authority. Rather, he would implement the DOC's mental health policy and take the appropriate steps to guard a suicidal inmate's safety.
Gregory Hughes, who was the DOC's Director of Mental Health and Substance Abuse Services until 2005, and who holds a master's degree in social work, was questioned next. Hughes testified about the aftermath of Kosilek Iand the DOC's efforts to comply with the court's decision. His role included overseeing and facilitating the services supplied to Kosilek, and in particular making happen the independent evaluation Judge Wolf ordered in Kosilek I. He testified about his dissatisfaction with the Fenway
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Report, questioning its thoroughness and its heavy reliance on Kosilek's self-reporting. He was concerned that the doctors had not reviewed any of Kosilek's medical records or mental health history or interviewed other people to verify Kosilek's selfreports. And while Hughes knew the doctors suggested surgery, he said he was uncertain about whether there were other recommendations and what next step the DOC should take. Because he was concerned with the Fenway Report's quality, Hughes had decided to contact Osborne. Hughes also testified that he reported his concerns about the report to Drs. Appelbaum and Brewer and that the DOC sought their thoughts during staff meetings. Hughes recalled the doctors saying there were no contraindications to surgery but did not believe they used the term "medically necessary."
Robert Dumond, who was the Director of the DOC's Research and Planning Division, and who had previously provided mental health screenings at MCI-Framingham, testified on the DOC's behalf. Dumond, who had a master's degree in psychology and experience in the areas of victimization and sexual assault in the prison system, was asked by the DOC to consider the risk factors for postoperative individuals in prison. Placing Kosilek at MCI-Framingham post-surgery, he responded, could "destabilize[] the safety and security of the institution" and create a risk for Kosilek to become a victim or victimizer.
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Arthur Beeler was also called by the DOC to testify about security issues. Beeler, a thirty-year employee with the Federal Bureau of Prisons, was warden at the Federal Correction Complex, Federal Medical Center in Buckner, North Carolina. Beeler toured MCI-Norfolk and MCI-Framingham, spoke with Superintendent Spencer, and reviewed the DOC's mental health policies in preparation for his testimony. In his opinion, Kosilek was currently safe and secure at MCI-Norfolk, based in part on the set-up of the facilities and her cell and the fact that Kosilek had never been assaulted there. Beeler indicated that he "would be very concerned" about placing Kosilek in the women's general population at MCI-Framingham and was satisfied that the mental health procedure at MCI-Norfolk was sufficient to address inmate suicide ideation and behavior. Beeler cautioned against giving in to an inmate's threats of suicide, likening it to opening Pandora's box. Beeler was not permitted to testify specifically about whether security concerns should preclude Kosilek from getting surgery because, the court found, he was not sufficiently informed about "the facts concerning Kosilek" because Beeler had not looked at her disciplinary or medical records.
Susan Martin, the DOC's Director of Health Services during the relevant time period, was next up. After speaking some about the contractual relationship between the DOC and UMass, Martin turned to the Fenway Center's evaluation of Kosilek. Like
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Hughes, she was not satisfied with the evaluation. Martin did not think the Fenway Report was very thorough and she raised this concern to UMass at the time. Though Martin knew the Fenway Center doctors were recommending surgery, she did not think they were clear enough about what exactly needed to happen and when. Because of these perceived omissions, Martin decided to have Osborne review the report.
When asked about UMass's role, Martin indicated she thought it was UMass's job to determine whether the Fenway Center's recommendations "were medically necessary and clinically sound," and UMass, she said, would not do this. She considered it UMass's responsibility to find a surgeon, and simply providing the DOC with a list of possible surgeons was not sufficient.
Next came DOC Commissioner Kathleen Dennehy's testimony. If faced with a court order compelling the DOC to provide Kosilek with sex reassignment surgery, Dennehy said she would probably retire before implementing something she considered unsafe. And based "strictly [on] safety and security concerns" she said she would still veto the surgery even if UMass told her it was medically necessary and even if Kosilek would likely attempt suicide if denied the surgery. (Dennehy claimed she was still awaiting clear direction from UMass.)
When asked, Dennehy acknowledged her awareness of the negative public attention that Kosilek's bid had been receiving.
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She admitted she knew that a Massachusetts senator, who she was friendly with and who had spoken in the news piece, vocally opposed sex reassignment surgery for inmates and was pushing for legislation to put a stop to its provision. She also said she knew of the Massachusetts Lieutenant Governor's opposition to surgery for transgender inmates.
Finally, Lynne Bissonnette, Superintendent of MCIFramingham, was called upon to discuss the feasibility of Kosilek's post-operative placement there. She explained the set-up at MCIFramingham. The women lived in multi-person rooms or dormitorystyle housing units, with the exception of the women in the segregation or medical units who had single cells. For the most part the buildings at MCI-Framingham were surrounded by a single, non-electrified twelve-foot-high fence. There had been, Bissonnette indicated, no prisoner escapes during her three-year tenure at Framingham.
As for the population at the facility, according to Bissonnette, a large majority of the women there had been victims of domestic violence or sexual assault. Also, a majority had mental health issues with about a half receiving medication for those issues. Bissonnette stated that if a woman could not effectively be maintained by the mental health professionals at the prison, she was sent for inpatient treatment at a Massachusetts Department of Mental Health facility, where security was not the
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equivalent of what was provided at the prison. And whereas Massachusetts provides a special secure hospital for male prisoners, Bridgewater State Hospital, she explained that no comparative facility exists for women.
Bissonnette's testimony then turned to Kosilek specifically, whose criminal record she had reviewed. Bissonnette did not think Kosilek was an appropriate candidate to be housed at MCI-Framingham post-operatively and noted several concerns. First, Bissonnette considered Kosilek a flight risk based on the weak perimeter at MCI-Framingham, the length of Kosilek's sentence, and the fact that Kosilek had fled Massachusetts after killing her wife.18 Second, Bissonnette worried about the lack of available inpatient mental health care. Kosilek would have to be sent to a less secure hospital for the general public should she require care. Third, Bissonnette considered Kosilek both a potential predator and victim within the inmate population — a predator because Kosilek had strangled her wife and a victim because a large proportion of MCI-Framingham's population had been the victims of domestic violence and sexual abuse and might seek to harm her. Further, and for essentially those same reasons, Bissonnette felt Kosilek would have a negative effect on the prison population.
18 Bissonnette considered Kosilek's earlier flight, even though the DOC classification manual says pre-custodial flight should not be considered when classifying inmates.
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In light of all of these concerns, were Bissonnette required to house Kosilek, she would put her in the Close Custody Unit, the single cell segregation unit, where inmates cannot hold any employment and are placed in restraints whenever they leave the cell. Since Kosilek is serving a life sentence, Bissonnette expressed concern that housing her in an environment this restrictive for such an extended period of time would have a negative impact on Kosilek's mental health.
On cross-examination Bissonnette made a few concessions. She agreed that MCI-Framingham currently houses approximately forty offenders who are serving life sentences for murder. Further, the institution houses in the general population inmates who are convicted of heinous crimes against children alongside prisoners who are mothers. Bissonnette explained that if inmates are perceived to experience trauma based on the presence of other inmates, there are policies and procedures in place to follow (such as simply ordering a cell transfer) and the mental health and security staff would respond appropriately. Though Bissonnette again acknowledged Kosilek could be housed in the Close Custody Unit safely, she persisted that this was not the "best setting for any inmate over a long period of time."19
19 During the first round of testimony some more negative press came out. The Boston Globe ran an editorial on June 15, 2006, which took the position that Kosilek should not receive the surgery. The editorial referred to the "distastefulness of a wife killer angling to serve out his sentence of life without parole in
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2. Responses to the First Round of Testimony After the first bout of testimony, which concluded at the end of June 2006, Judge Wolf then directed the UMass doctors to review Dr. Schmidt's testimony and to inform the court whether the latter's proposed approach was within prudent professional standards. Drs. Appelbaum and Brewer responded in a report filed with the court on September 18, 2006. They continued to endorse the Fenway Center doctors' conclusion that Kosilek had a serious medical need requiring surgery. In their opinion, Dr. Schmidt's proposed alternative course of psychotherapy, medication, and suicide watch fell "outside the bounds of acceptable professional standards" and would not constitute "adequate medical care." Such interventions would "likely do little" to reduce Kosilek's dysphoria or the risk of harm to her. Only surgery, they concluded, could do this, and there was "no good clinical reason to withhold that treatment at this time." The judge also ordered Dennehy to review the evidence presented at trial and decide whether the DOC would reverse its position on surgery for Kosilek. After doing so, Dennehy indicated to the court that Drs. Appelbaum's and Brewer's testimony confirmed what she suspected (but apparently did not previously find clear): that the doctors believed surgery was medically necessary. Dennehy stood firm though; she advised Judge Wolf that her decision not to

a women's prison."

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allow sex reassignment surgery for Kosilek remained. Her safety and security concerns with providing surgery, which Dennehy called "alarming and substantial," had not changed.
3. Second Round of Testimony Testimony resumed in early October 2006, with various witnesses taking and re-taking the stand. First came Dr. Appelbaum, who emphasized several points. Kosilek had a serious medical need because there was a serious risk of harm if she was not adequately treated; and he had informed Dennehy of this. Antidepressants were unlikely to effectively treat Kosilek because the source of her distress was her gender identity disorder and medication would not target this underlying condition. Rather, surgery, he explained, was the "recognized and appropriate treatment" and the only treatment "likely to significantly relieve, if not eliminate Miss Kosilek's distress." Dr. Kevin Kapila from the Fenway Center also spoke. He called Kosilek's gender identity disorder "one of the more severe cases" he had ever seen and he testified about the report he and Dr. Kaufman had written. In his opinion, Kosilek had a serious medical need and there was a substantial risk of harm if she was not treated with surgery. Dr. Kapila also testified that he thought Dr. Schmidt's recommendation was unreasonable. Specifically, Dr. Kapila (who had reviewed Dr. Schmidt's testimony) opined to a reasonable degree of medical certainty that Dr.
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Schmidt's plan to treat Kosilek with psychotherapy and medication was inadequate. Pointing to his own evaluation of Kosilek after she had been receiving psychotherapy and hormones for seventeen months, Dr. Kapila noted her symptoms had still not resolved; "she still was dealing with discomfort around having male genitalia." Dr. Schmidt's approach would not deal with this core problem — only surgery could — and, Dr. Kapila continued, one tries to treat the problem, not merely the symptoms.
Dr. Kaufman then got recalled. While she agreed Kosilek's dysphoria had improved as a result of receiving hormone treatments and gender-appropriate items and clothing, Dr. Kaufman persisted in opining that Kosilek still had a serious medical need and if she did not receive surgery there was a substantial risk of serious harm. Despite all the treatment Kosilek had received, she still continued to experience severe dysphoria. Like Dr. Kapila, Dr. Kaufman did not think the treatment advocated by Dr. Schmidt was adequate. It is important to distinguish between depression and dysphoria, she said, and Dr. Schmidt's treatment would not sufficiently address the latter.
UMass's Medical Director, Dr. Arthur Brewer, was up next. He had little to add to the testimony of the other medical providers because, as medical director, he was not involved in UMass's mental health program and had no role in Kosilek's treatment. His position remained the same as in his and Dr.
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Appelbaum's September 18, 2006 letter, which supported the Fenway Center doctors and criticized Dr. Schmidt's approach.
Judge Wolf then again heard from Commissioner Dennehy. She accepted that Kosilek had a serious medical need but said she had previously been confused about whether surgery was medically necessary. While she had now "deduced" UMass's opinion on the appropriateness of surgery for Kosilek, she had not changed her thoughts on the security and safety concerns related to providing such surgery. Absent these concerns, Dennehy agreed she would have no reason to interfere with any medical order for treatment.
The court questioned Dennehy about her awareness of any publicity surrounding Kosilek's case. Dennehy was generally aware of a couple of articles appearing in the Boston papers and admitted skimming one. She also knew about an article on a national news media website. In general she tried not to read newspaper articles that involved her and she never thought about what the public and political reaction would be if the DOC allowed Kosilek to have surgery.
4. The Court-Appointed Expert After hearing all the witnesses each side wished to present, Judge Wolf decided to appoint an expert in order to help him decide whether the care proposed by Dr. Schmidt was objectively adequate. See Fed. R. Evid. 706 (providing that the court may on its own initiative appoint an expert). After soliciting the
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parties' thoughts on who to appoint, Judge Wolf selected Stephen Levine, M.D., on October 31, 2006. Dr. Levine practiced at the Center for Marital and Sexual Health in Ohio and was a clinical professor of psychiatry at Case Western Reserve University School of Medicine. The court informed Dr. Levine that Kosilek had been living as a woman in prison and instructed him to treat this case as if Kosilek were just another patient out in free society, without all the issues attendant to her being incarcerated.
A month later, Dr. Levine, who did not interview Kosilek, issued a written report. Commenting on the views held by Drs. Brown and Schmidt, he noted they "reflect the current polarities within psychiatry" with each of their respective positions having merit. He wrote that "Dr. Schmidt's view, however unpopular and uncompassionate in the eyes of some experts in GID, is within prudent professional community standards."
In addition to submitting his report, Dr. Levine also testified on December 19, 2006. At first, he reiterated that the treatment recommended by Dr. Schmidt, though perhaps not popular, was within prudent professional standards. He thought Kosilek had obtained a good amount of relief from being on hormones and dressing as a woman and was probably as feminine as she was going to be; surgery would be "icing on the cake" he said. Dr. Levine, like Dr. Schmidt, stopped short of saying that Kosilek would try to kill herself if she was denied surgery. He thought it was just a
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possibility and Kosilek's impulse could perhaps change over time. And, he added, even if Kosilek received the surgery, it was possible that, having nothing left to fight for, she could still experience an emotional crisis and contemplate suicide. In general, Dr. Levine had criticisms of both Dr. Schmidt's and Dr. Brown's reports, but he thought they were both reasonable.
During questioning by Judge Wolf, it seemed Dr. Levine had not followed some of the court's directives about not taking into account the fact that Kosilek was in prison. Presuming Kosilek would never be free, Dr. Levine did agree Kosilek had lived a real-life experience as a woman in prison. He also believed she essentially met all the eligibility and readiness requirements for surgery under the Standards of Care. Dr. Levine opined that providing Kosilek with surgery, assuming she had met the real-life experience requirement, would be consistent with prudent professional practice. And although Dr. Levine had earlier in his testimony found Dr. Schmidt's approach to be prudent, he clarified that putting aside issues such as cost and security, it would not be within prudent professional standards to deny Kosilek surgery.
After hearing Dr. Levine's testimony, the court asked the UMass doctors to prepare a written letter indicating what treatment the DOC would propose as a possible alternative to surgery. In a letter filed with the court on February 22, 2007, Dr. Brewer indicated that, after consulting with Drs. Kapila and Kaufman, he
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felt that, if denied surgery, Kosilek should receive psychotherapy and should continue to receive hormones and feminine clothes and items. However, Dr. Brewer hastened to add what Drs. Kapila and Kaufman had repeatedly advised him: such treatment was "likely going to be ineffective to relieve Ms. Kosilek's distress and may well result in self harm or suicide."
5. Third Round of Testimony Trial picked back up on March 15, 2007, with Kosilek again calling Dr. Kaufman, as well as an additional witness, Dr. Marshall Forstein of Harvard Medical School and the Cambridge Health Alliance. Dr. Forstein, who had evaluated Kosilek on behalf of the DOC around the time of Kosilek I (and testified in that trial), evaluated Kosilek again in 2005. Kosilek called on Dr. Forstein to address whether surgery was appropriate and if psychotherapy would be a reasonable alternative to surgery. Sex reassignment surgery, Dr. Forstein opined, was the only reasonable treatment for Kosilek for preventing the potential for self-mutilation or death. He thought surgery was probably not appropriate for actively suicidal patients, but he did not find Kosilek to be so. Nor did Dr. Forstein think psychotherapy or antidepressants were reasonable alternatives to surgery for Kosilek. Dr. Kaufman again made her views clear during her testimony: "We don't recommend psychotherapy. We recommend
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surgery." Psychotherapy, she said, does not relieve gender identity disorder, especially when it is severe: "rather than trying to change the mind, we find that we need to change the body." After this testimony, both parties rested.
6. Commissioner Clarke Enters the Fray On May 2, 2007, Dennehy informed the court she was no longer commissioner of the DOC and James Bender had taken her place. Bender's tenure was short and he never testified. His successor, Harold Clarke, became commissioner in November 2007. In April 2008, the court ordered Clarke to review certain trial transcripts, to submit a report of his conclusions, and to offer testimony at a hearing to be held the following month. Clarke submitted his report to the court on May 7, 2008.20 In it, he took the same stance as Dennehy had before him. "Insurmountable" is how Clarke characterized his concerns attendant to providing Kosilek with sex reassignment surgery. Ticking off several of those concerns, Clarke claimed that transporting Kosilek out of the state for surgery would pose a flight risk based on Kosilek's life sentence and her exodus from the state after killing her wife.21 Next, he claimed there were flight risks with housing
20 In connection with preparing the report, Clarke read the testimony of Kosilek, Dennehy, Spencer, and Bissonnette. He had also reviewed several trial exhibits including the Fenway Report and Dr. Seil's report.
21 Like Bissonnette, Clarke considered Kosilek's earlier flight, even though the DOC classification manual says pre-
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Kosilek post-surgery at MCI-Framingham, as it was not as secure as MCI-Norfolk, and Kosilek would pose a risk to the female inmates and vice versa. Clarke opined that the only viable post-operative option would be to place Kosilek in the Special Management Unit at MCI-Norfolk where she would be on lock down twenty-three hours a day.
Clarke's written report highlighted other problems he envisioned. An out-of-state transfer was not a viable option because there was no guarantee another state would take Kosilek or, if it did, that the state would keep her. Nor did Clarke think a special unit for inmates with gender identity disorder would work as such inmates vary greatly in their security and treatment needs. Further, providing Kosilek with surgery in response to her threats of suicide would be "contrary to well-established correctional practices." Inmates should not "be permitted to manipulate the system utilizing a 'do it or else' theory." All of these conclusions, Clarke explained, were based on his own correctional experience, and he expressly disclaimed reliance on any political, media, or cost-related influences.
A few days after submitting his report, on May 12 and 13, 2008, Clarke came before Judge Wolf. He reiterated the security concerns outlined in his report, but was forced to make a few concessions on cross-examination. Clarke did not know that Kosilek
custodial flight should not be considered when classifying inmates. -48-

was, at that time, fifty-eight years old; he had assumed she was much younger. Prisoners in t heir fifties, he agreed, generally cease to be aggres sive and have a calming effect in the prison environment. Clarke, who did not consult with any of the prison superintendents in connection with his review, had also never read Kosilek's recent classification report and was not aware of her excellent disciplinary record. Yes, he was aware Kosilek had been transported to scores of doctor's appointments without any attempt at escape and he agreed that if need be the DOC could, "with some degree of certainty," safely transport Kosilek for surgery out of state. Clarke also acknowledged that his previous employer, the State of Washington Department of Corrections (he had been the secretary of this DOC), had housed without any issues a postoperative female transgender inmate, who was serving a life sentence for murdering his sister, in one of its women's prisons.
Clarke was also asked about some letters he had recently received from Massachusetts lawmakers. In particular, a few days after he was ordered by the court to testify, Clarke received a letter signed by seventeen Massachusetts state senators voicing their concerns over Clarke's review of Kosilek's case. The senators "urge[d]" Clarke to deny Kosilek's request for surgery as it would be an "affront to the taxpayers" and "raise a significant security risk." A decision in favor of Kosilek would "send the wrong message to the citizens of Massachusetts." Around that same
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time Clarke received another letter signed by twenty-five state representatives. Similar sentiments were expressed in that letter. The representatives vented their "outrage" at Kosilek's request, citing state budget concerns, and contended providing the surgery would "set a bad precedent." At trial, Clarke said he did not respond to the letters as he thought it would be inappropriate given the review he was tasked with. Nonetheless, Clarke was aware the lawmakers were drafting legislation seeking to limit the state's ability to expend funds in this case. He was not however (he said) influenced by the legislators' ire or any of the media's anti-Kosilek coverage.
7. The Trial Comes to an End After Clarke completed his testimony, the parties made closing statements. Then, two years after it had begun, Kosilek's trial came to an end. No more testimony was taken by the court after May 2008. In total the court had sat for twenty-eight days of trial. However time rolled on, and in 2009 and again in 2011 Judge Wolf heard additional arguments from the parties to address recent judicial decisions and developments.
G. The Kosilek II Decision On September 4, 2012, after confirming with the parties they had nothing new to report, Judge Wolf issued his decision. See Kosilek II, 889 F. Supp. 2d at 190. The decision was lengthy (126 pages); it contained a thorough history of Kosilek's quest, a
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detailed summary of the evidence adduced at trial, and loads of factual findings. In order to prevail on her claim, Judge Wolf found Kosilek had to prove five things: the first two considerations as part of the Eighth Amendment's objective component, the last three as part of its subjective prong. Kosilek had to establish that: (1) she has a serious medical need; (2) the need can only be adequately treated with sex reassignment surgery; (3) the DOC knows that Kosilek is at a high risk for serious harm if surgery is not performed; (4) the DOC did not deny Kosilek the surgery based on a legitimate penological purpose, namely good faith, reasonable security concerns; and (5) the DOC's unconstitutional conduct will continue in the future. The decision addressed each piece in turn.
First, with respect to the serious medical need component, the court found that credible evidence at trial established that Kosilek suffered from severe gender identity disorder and would suffer serious harm if it was not adequately treated. The court focused on Kosilek's threat of suicide (determined to be credible and not manufactured) and the fact that multiple highly qualified doctors employed by the DOC had diagnosed Kosilek with a severe form of gender identity disorder, a diagnosis confirmed by Drs. Brown and Forstein. The court's takeaway: Kosilek had established a serious medical need.
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On point two — what treatment was adequate to address this need — the court found the following. The Standards of Care dictated a three-part sequence that called for hormone therapy, a real-life experience living as the opposite sex, and then sex reassignment surgery (though not all patients need or want all these things). Kosilek of course had been on hormone therapy and the court concluded the evidence showed that she underwent a reallife experience living as a woman in prison. The court found Drs. Brown, Kaufman, and Forstein credible when they testified, consistent with the Standards of Care, that surgery was medically necessary for some individuals with severe gender identity disorder and, indeed, medically necessary for Kosilek herself. It also concluded, relying in part on the opinions of Drs. Appelbaum and Levine, that Dr. Schmidt's proposed alternative treatment of psychotherapy, antidepressants, and suicide watch did not meet prudent professional standards. More specifically, the court determined that Dr. Schmidt's categorical views about sex reassignment surgery, including his refusal to recommend sex reassignment surgery for patients, were not supported by the Standards of Care. Moreover, the treatment advocated by Dr. Schmidt would not treat the cause of Kosilek's mental anguish (it would diminish the symptoms at most) or reduce her suffering to the point that she no longer h ad a serious medical need. Having determined that Kosilek had proven she had a serious medical need
-52-

that had not been treated adequately, the court decided that Kosilek had satisfied the objective prong of the Eighth Amendment test. The court then turned its attention to the so-called subjective prong: in essence, did the DOC know of and disregard an excessive risk to Kosilek's health.
The court started with the third issue it had outlined — whether the DOC knew that Kosilek was at risk for serious harm if surgery was not performed. As a threshold matter, the court considered who within the DOC should be its focus as far as who knew what and when. The court determined, based in part on stipulations from the parties, that former DOC Commissioner Dennehy was the sole decision-maker on the issue of whether security concerns should preclude Kosilek from getting surgery. And Dr. Appelbaum of UMass, it decided, should be the focus of the court's determination about whether the DOC was aware that Kosilek had a serious need for surgery. Ultimately though, the court decided this was a distinction without a difference because the evidence established that both Dennehy and Dr. Appelbaum were aware of facts from which they could infer — and did in fact draw the inference — that "a substantial risk of serious harm to Kosilek existed." The court focused on Dr. Appelbaum's numerous communications with Dennehy in which he advised her of the serious risks faced by Kosilek if the Fenway Center's proposed course of treatment was not undertaken. It also looked to the fact that Dennehy had read the
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Kosilek I decision, read testimony in this case, and that, in her own testimony, she ultimately did not dispute that Kosilek had a serious medical need.
The court's analysis proceeded to the fourth factor — that is, whether the DOC denied Kosilek surgery based on a legitimate penological purpose. First, the court explained it is not legally permissible to deny a prisoner medical treatment based on cost alone, but the court did not find cost to be the basis for the DOC's decision here. Noting the DOC's provision of various expensive medical treatments to many prisoners, the court specifically declined to find that the DOC's denial of surgery to Kosilek was motivated by the high cost of the treatment. The court then moved on to the main bone of contention, which was whether the DOC's proffered security concerns were its real reason for denying Kosilek surgery. If the DOC's decision was made in good faith and based on reasonable security concerns, the court said it would defer to the DOC's decision. Ho wever, such deference was not to be. Quite the contrary, the court found that, after a long period of pretense and prevarication, Den nehy persisted in falsely asserting that providing Kosilek with the surgery would present insurmountable security concerns. The court found Dennehy's security excuses nothing more than a pretext to deny Kosilek surgery. Indeed, it was a "fear of controversy, criticism, ridicule, and scorn" that was the real driving force behind the
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DOC's decision to withhold surgery. In support of its conclusion, the court cited Dennehy's pattern of delay, deviation from DOC policy, feigned ignorance about what treatment DOC doctors were recommending, failure to do a thorough security evaluation before making up her mind, the unrealistic nature of the supposed security risks, and the public and political outcry against Kosilek. It summed things up this way: "Because there is no penological justification for denying Kosilek the treatment prescribed for [her], [s]he is now being subject to the 'unnecessary and wanton infliction of pain' prohibited by the Eighth Amendment."
Expressing a reticence to tell the DOC how to discharge its duty, and lamenting the fact that the DOC had not just made the proper medical decisions on its own, the court moved on to the final consideration, which was whether the DOC's unconstitutional conduct, absent court intervention, would continue. Based on the DOC's pattern of unconstitutional conduct as chronicled above, the court determined the DOC's deliberate indifference would not cease without judicial intervention. Kosilek was entitled to an injunction. Because an injunction must be narrowly tailored, the court declined to decide who should do the surgery, where it should be done, or where Kosilek should be housed afterwards. Rather Judge Wolf simply ordered the DOC to provide Kosilek with sex reassignment surgery. The order read: "Defendant shall take
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forthwith all of the actions reasonably necessary to provide Kosilek sex reassignment surgery as promptly as possible."
The DOC quickly filed this appeal and moved the district court to stay its order to provide Kosilek with surgery pending resolution of the appeal, which the court did.
II. THE ISSUES ON APPEAL After setting forth the extensive backdrop of Kosilek's odyssey, we start by narrowing the issues before us. On appeal, the DOC attacks the district court's decision but limits its offensive to just a couple of issues. To start, it does not take umbrage with many of the district court's findings, namely that Kosilek has a serious medical need, that the DOC knows she has a serious medical need, that surgery could appropriately treat this need, or that injunctive relief (should the DOC's conduct be deemed unlawful) is an appropriate vehicle for relief. And based on the evidence adduced at trial, we think the DOC would not have had strong arguments on any of these points. The two basic criticisms the DOC levels at the district court's decision are the following. First, it claims the court erred in finding that the DOC's decision not to provide Kosilek sex reassignment surgery constitutes inadequate medical care in violation of the Eighth Amendment. Second, it contends the court erred in finding the DOC deliberately indifferent to Kosilek's need for treatment. We elaborate.
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On point one, the DOC argues that surgery is not constitutionally required because the treatment Kosilek is already receiving — psychotherapy, hormones, permanent hair removal, and access to female clothing and cosmetics — is adequate. Kosilek, it contends, is not entitled to the most sophisticated or desirable treatment or to curative treatment, as opposed to treatment for her mental illness. And should Kosilek engage in self-injurious behavior (e.g., attempt to commit suicide) if denied surgery, the DOC contends treating this behavior with methods like psychotherapy, antidepressants, and a protective environment would be adequate. In sum, the DOC thinks the court erred when it found the DOC's current and proposed treatment course inadequate (i.e., failed to meet prudent professional standards) under the Eighth Amendment and the sex reassignment surgery medically necessary.
Kosilek disagrees. She counters that the court correctly found surgery to be the only adequate treatment for her serious medical need — a finding support ed by more than ample evidence. Kosilek points out that almost all of the medical professionals who testified at trial agreed this was the case, and only the DOC's experts disagreed; Kosilek says the court was entitled to disbelieve them. She claims the evidence also establishes that, even with hormones and psychotherapy, her mental anguish is severe and the DOC's proposed course of treatment would not sufficiently
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reduce this. Sex reassignment surgery is medically necessary, according to Kosilek.
As to the court's deliberate indifference finding, the DOC contends the court erred in rejecting the safety and security concerns presented by DOC officials at trial in support of their decision to withhold surgery, which they say were based on their best correctional judgment and were reasonable and not pretextual. The DOC "vigorously disputes" that the public criticism of Kosilek and her request for surgery had any impact on the decision-making process of Commissioner Dennehy or her successor, Clarke. However, other than this broad assertion it says little else about Dennehy herself and her motives. Instead it homes in on Dennehy's ultimate successor Clarke, claiming that he should be the focus of this court's determination as to the validity of the security concerns voiced by the DOC (despite the DOC's at-trial stipulation that Dennehy was the operative decision-maker).22 There was an absence of evidence in the record, says the DOC, that Clarke's proffered security concerns were exaggerated or made in bad faith and so, the court was required to accord him deference. Further, the DOC points out Kosilek offered no counter correctional expert testimony, and the district court did not find that Superintendent
22 At oral argument counsel for the DOC clarified that he does not suggest that this court disregard Dennehy's testimony, only that it should focus on Clarke's as it is more relevant being closer in time.
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Bissonnette or Spencer acted in bad faith or were tainted by a fear of public criticism.
On the court's deliberate indifference finding, Kosilek argues that the DOC had no legitimate security reason to withhold surgery and importantly, more than sufficient evidence supported the court's conclusion that the alleged security concerns were pretextual. Kosilek points to several pieces of evidence: the security decision was made before any security review occurred; a subsequent security review did not follow DOC procedure; the security report was hastily drafted by trial counsel; and the security evaluation that was performed did not take into account certain fundamental factors like Kosilek's age and good disciplinary record. Kosilek adds that there was evidence that Kosilek's transportation to surgery and post-operative placement would not be actually impossible from a security perspective. As such, no "mechanical deference" is owed to the DOC, according to Kosilek, whose argument focuses on the illegitimacy of the proffered security concerns rather than the supposed role public criticism played in the DOC's decision. Kosilek also lambasts the DOC for attempting to distance itself from Dennehy on appeal since below the DOC stipulated that Dennehy's motivations should be the focus and in fact objected to Clarke's testimony as unnecessary.
With the arguments delineated and the issues narrowed, we turn to the operative law.
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III. EIGHTH AMENDMENT CRITERION The Eighth Amendment provides the vehicle through which courts scrutinize "the treatment a prisoner receives in prison and the conditions under which he is confined." Farmerv. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks omitted). One way prison officials violate the Eighth Amendment is when they fail to provide an inmate with adequate medical care, such that "their 'acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (citing Estelle v. Gamble , 429 U.S. 97, 106 (1976)). To prevail on an Eighth Amendment inadequate medical care claim, a plaintiff must satisfy two inquiries, one objective and one subjective. Id. The objective component requires that "the deprivation alleged must be, objectively, sufficiently serious." Farmer, 511 U.S. at 834 (internal quotation marks omitted); Leavitt, 645 F.3d at 497. Thus an Eighth Amendment claim such as this one turns, in part, on whether the prisoner has a "serious medical need," in other words, "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." Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18-19 (1st Cir. 1995) (internal quotation marks omitted). A prisoner is entitled to adequate medical care for that need, though
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this does not necessarily mean the most sophisticated care available. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987). Rather, adequate care is "services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." Id. at 43.
For the subjective prong to be satisfied, prison officials must have had "a sufficiently culpable state of mind"; that is, they showed deliberate indifference to an inmate's health and safety. Farmer, 511 U.S. at 834; Leavitt , 645 F.3d at 497. "Deliberate indifference means that a prison official subjectively 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." Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007) (internal quotation marks omitted). To establish a subjective intent, "a deliberate intent to harm is not required," rather "it is enough for the prisoner to show a wanton disregard sufficiently evidenced 'by denial, delay, or interference with prescribed health care.'" Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011) (quoting DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991)).
If a court finds that the Eighth Amendment's objective and subjective prongs have been satisfied, it may grant appropriate injunctive relief. Farmer, 511 U.S. at 846.
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IV. STANDARD OF REVIEW Here Kosilek's Eighth Amendment claim was heard exclusively by a judge. When this court decides an appeal from a judgment following a bench trial, different standards of review are at play. Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir. 2009). First, questions of law engender de novo review. Id. Findings of fact, however, are reviewed only for clear error. Id. This means we accept the court's factual findings unless the evidence compels us to conclude contrarily that a mistake was made, "keeping in mind that the district judge had the opportunity to assess the credibility of the witnesses." Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st Cir. 2006). "'This deferential standard extends . . . to inferences drawn from the underlying facts,' and 'if the trial court's reading of the record [with respect to an actor's motivation] is plausible, appellate review is at an end.'" Id. at 138-39 (a lteration in original) (quoting Smith v. F.W. Morse & Co. , 76 F.3d 413, 420 (1st Cir. 1996)). Finally, with mixed questions of law and fact, there is a continuum. Johnson v. Watts Regulator Co., 63 F.3d 1129, 1132 (1st Cir. 1995). The more fact-intensive the question, the more deferential our review. Id. Conversely, the more law-dominated the question, the more likely our review moves toward a de novo look. Id.
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Before going any further we address a point of dispute
among the parties. While everyone agrees that the above standard of review controls, the parties disagree on how to apply it. 23
Kosilek argues that the district court's determinations on the
adequacy of the medical care and the viability of the purported
security rationale are findings of fact and therefore this court's
review is for clear error only. The DOC, however, claims that the
court's conclusion regarding the appropriateness of Kosilek's
health care is a conclusion of law engendering de novo review; it
does not address at all what standard should apply to the court's
deliberate indifference finding. Neither side gives us any legal
support for the respective positions they take in this debate.
This court has not provided clear guidance; however, we
are not left totally in the dark. For one, we have explained that
a "state-of-mind issue such as the existence of deliberate
indifference usually presents a jury question," Torracov. Maloney,
923 F.2d 231, 234 (1st Cir. 1991), in other words an issue for the finder of fact. 24 Further, when reviewing a trial judge's
23 In violation of our rules, the DOC did not include a standard of review in its opening brief. See Fed. R. App. P. 28(a)(9)(B). Not until its reply brief did we learn the DOC's stance on this important issue.
24 The Eighth Circuit has held that "whether an official was deliberately indifferent to [an] inmate's serious medical need" is a question of fact. Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011). On the other hand, the Fifth Circuit has characterized it as a legal conclusion resting on certain facts. Walker v. Butler, 967 F.2d 176, 178 (5th Cir. 1992).
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determination on the adequacy of medical treatment following a bench trial, this court has applied the deferential clearly erroneous standard. DesRosiers , 949 F.2d at 19-20. 25 And it is well established that "elusive issues of motive and intent" (at play here in connection with the subjective prong) are typically fact-bound ones subject to the clearly erroneous rule. Fed. Refinance Co. v. Klock , 352 F.3d 16, 27-28 (1st Cir. 2003); see also McIntyre ex rel. Estate of McIntyrev. United States, 545 F.3d 27, 40 (1st Cir. 2008).
On top of all this, the district court here "engaged in a careful and close analysis of the trial evidence" and therefore, given the fact-intensive nature of the court's inquiry, we are satisfied that the court's findings — that the DOC refused to provide medically necessary treatment for a serious, lifethreatening medical condition that could be accommodated without security risk — should be reviewed for clear error only. See, e.g., Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012). To the extent that any of the court's findings could be viewed as more akin to a mixed question of law and fact or even a legal label (the most arguable one being whether the DOC's conduct amounted to deliberate indifference), some deference is still appropriate. See
25 The Ninth Circuit seems to take a similar approach. It described a dispute about whether "any option other than surgery was medically acceptable" for an inmate alleging an Eighth Amendment violation as an "issue of fact." Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012).
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Battista, 645 F.3d at 454 ("The legal labels applied to facts are
reviewed on appeal more closely than a district court fact-finding,
but often with some deference to the district judge."); Fed.
Refinance Co., 352 F.3d at 27 (explaining that the more fact-
intensive the question the more deferential our review).26
The dissent first diverges from this opinion on the
standard of review issue. While our dissenting colleague agrees
that a continuum (anchored on one side by de novo review and on the
other by clear error review) is at play, he is not convinced that
the district court's controlling findings should be reviewed on the
clear error end of the spectrum. However, the dissent does not
explain how any of the findings made by the district court, which
26 Our precedent indicates that where a district court's decision threatens to intrude on a party's First Amendment rights, we must "make an independent examination of the whole record" in reviewing a decision that there is no such intrusion. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)). But we are aware of no precedent for importing this elevated review into other contexts not implicating a need to guard against judicial restriction of First Amendment rights. Supreme Court decisions certainly signal no license to extend Bose Corp. beyond First Amendment cases. See Maine v. Taylor , 477 U.S. 131, 145 (1986) ("[N]o broader review is authorized [under Bose Corp. ] simply because this is a constitutional case."); Hernandez v. New York , 500 U.S. 352, 367-69 (1991) (refusing to apply elevated review under Bose Corp. and instead applying clear error review to a claim under the Equal Protection Clause); Thornburg v. Gingles, 478 U.S. 30, 78-79 (1986) (doing the same in a claim of vote dilution under the Voting Rights Act). And as our dissenting colleague perceptively explained in another opinion, it is not clear that a heightened standard would apply even if this were a First Amendment case, because the district court did not reject but sustained the assertion of a constitutional right. United States v. Frabizio, 459 F.3d 80, 96 (1st Cir. 2006) (Torruella, J., concurring).
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led to the result we are affirming, are anything more than quintessentially factual findings. And while the dissent argues that we must review de novo the district court's conclusion that the facts demonstrate an Eighth Amendment violation, where a legal conclusion flows directly from factual findings, our review of those factual findings — and thus the overall conclusion — remains deferential. For example, in a recent Eighth Amendment case similar to this one, we reviewed the district court's determination that the state had been deliberately indifferent to the needs of a prisoner suffering from gender identity disorder by asking whether the court had a "reasonable basis" for its conclusion, not whether the district court actually reached the right decision. Battista, 645 F.3d at 454-55. Here, the success of Kosilek's claim depends almost entirely on questions of credibility (in assessing the state's motives) and on questions of medical care (in assessing Kosilek's medical needs). These are exactly the kinds of questions that we must review deferentially, especially where, as here, there is ample testimony precisely and directly supporting the district court's answers to such questions.
With the parameters of our review cleared up, we move on to the merits of this case.
V. THE OBJECTIVE PRONG As we said, the DOC does not dispute that Kosilek has a serious medical need. The real issue is whether the district court
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erred in finding that the care the DOC has provided Kosilek with
(i.e., hormones, psychotherapy, and feminine items) and proposes to
provide her with to relieve any self-injurious behavior (i.e.,
psychotherapy, antidepressants, and a protective environment) is
adequate. Said another way, is, as the district court found, sex
reassignment surgery medically necessary and the only appropriate
treatment for Kosilek?
Our review starts off with the DOC's expert Dr. Schmidt,
who the district court concluded was not a prudent professional.27
This finding was not clearly erroneous. First, Dr. Schmidt
expressed a good deal of disagreement with the Standards of Care28.
However, the Standards of Care were widely relied upon and trusted
by the other medical providers who testified at trial and have been
cited by the courts as generally accepted. See, e.g., De'Lonta v.
Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (describing the
27 In its decision, the court noted it had considered Osborne's testimony but was not discussing it separately because she testified consistent with her colleague Dr. Schmidt and there was a question as to whether she should even be considered in the prudent professional debate because she is a social worker and not a medical doctor. We take the same tack and focus on Dr. Schmidt.
28 The Seventh Version of the Standards of Care, which, as indicated, came out in 2011, contains a new section addressing the applicability of the standards to persons living in institutional environments such as prison or long-term care facilities. Standards of Care, Version 7, at 67. It indicates that, for those persons, health care "should mirror that which would be available to them if they were living in a non-institutional setting" and that "[a]ll elements of assessment and treatment as described in the [Standards of Care] can be provided to people living in institutions." Id.
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Standards of Care as "the generally accepted protocols for the treatment of GID"); Soneeya v. Spencer, 851 F. Supp. 2d 228, 231 (D. Mass. 2012) (noting that the "course of treatment for Gender Identity Disorder generally followed in the community is governed by the 'Standards of Care'"); O'Donnabhain v. Comm'r of Internal Revenue, 134 T.C. 34, 65 (U.S. Tax Ct. 2010) (indicating that the Standards are "widely accepted in the psychiatric profession, as evidenced by the recognition of the standards' triadic therapy sequence as the appropriate treatment for GID and transsexualism in numerous psychiatric and medical reference texts").
More specifically, the Standards of Care, which the parties agree are applicable in some regard to the treatment of gender identity disorder (though the DOC would certainly like to see them given less weight than Kosilek would), provide for a triadic approach: a real-life experience in the preferred gender role, hormones of the desired gender, and surgery to alter one's genitalia. The Standards of Care indicate that for persons with severe gender identity disorder, sex reassignment surgery is effective. Standards of Care at 18. In such persons, surgery paired with hormone therapy and a real-life experience is "medically indicated and medically necessary." Id. Surgery is not, the Standards of Care say, "experimental, investigational, elective, cosmetic, or optional in any meaningful sense." Id. Dr. Schmidt, however, disagreed with the proposition that surgery is
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medically necessary in cases of severe gender identity disorder. In fact, he did not recall seeing a case of gender identity disorder serious enough to require surgery in the approximately 300 patients he has evaluated. Dr. Schmidt's views regarding the need for surgery for patients with severe gender identity disorder was not only unsupported by the Standards of Care but also contradicted by the testimony of the other medical providers at trial.
As for what treatment was appropriate for Kosilek in particular, Dr. Schmidt opined that surgery was not necessary as Kosilek had done well just using hormones thus far. The main barrier Dr. Schmidt saw was that, in his opinion, a real-life experience living as the opposite gender could not be effectively replicated in prison. Rather, Dr. Schmidt's proposed course of treatment was to utilize psychotherapy and medication to reduce Kosilek's dysphoria to a point where she was no longer at risk for serious harm. Should her suicidal desires persist, Dr. Schmidt thought Kosilek could be effectively managed in a medical facility. However, a majority of the other medical providers who testified at trial regarding Dr. Schmidt's proposed course of treatment thought it was unreasonable (namely, Drs. Kapila, Kaufman, Appelbaum, and Forstein).29 The consensus was that Dr. Schmidt's approach would
29 We do not list Dr. Levine among these providers because, as the reader will recall, there was some change in his testimony. Initially he opined that Dr. Schmidt's view, though unpopular, was reasonable. However, Dr. Levine apparently had disregarded the court's order to treat Kosilek as if she were a patient out in free
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not effectively treat the real issue, which was Kosilek's gender identity disorder, or significantly relieve her distress to a level where she was not at risk for serious harm. As Dr. Kapila explained, Kosilek's symptoms and distress had not been resolved though she had been on hormones for some time.
Ultimately, the court was confronted with two diametrically opposed opinions, both given by qualified medical professionals. Given the contradictory evidence, which was heavily weighted against the DOC, we are far from left with the impression that the trial court made a mistake when it determined that Dr. Schmidt was not a prudent professional or that his approach was unreasonable. See Janeiro, 457 F.3d at 138. The court did not clearly err.
The question that remains is what treatment is medically adequate to treat Kosilek. The DOC twists the district court's holding, claiming that it impermissibly held that the Eighth Amendment requires treatment that actually "cures" the inmate's condition. The court said no such thing. It simply found that the only adequate treatment in this case was sex reassignment surgery.
society. After being reminded of those parameters, Dr. Levine clarified his opinion. He said, putting aside a variety of concerns about the surgery, including cost, security, and the requirement of a "real life experience," prudent professionals do not ordinarily prevent a patient from receiving sex reassignment surgery. But even were we to disregard Dr. Levine's opinion entirely, there was ample evidentiary support for the court's conclusion that Dr. Schmidt's approach was not prudent.
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And though, according to the experts, surgery did have the potential to cure or at least greatly alleviate Kosilek's gender identity disorder, this does not translate to a finding by the court that only curative treatment passes constitutional muster. To give an exampl e, if Kosilek had cancer and the court found chemotherapy to be the only adequate treatment under the Eighth Amendment, as opposed to, say, an aspirin, it would not necessarily follow that the court held that the Eighth Amendment requires an inmate to be cured. The DOC's argument misses the mark.
However, as the district court found, there is a difference between treating the underlying disorder and treating only its symptoms. The Seventh Circuit Court of Appeals drew a similar distinction when it held that a Wisconsin statute which prohibited the state's department of corrections from providing transgender inmates with hormones and sex reassignment surgery was unconstitutional. Fields v. Smith, 653 F.3d 550, 552-53, 559 (7th Cir. 2011). The court, discussing how some patients require hormone therapy, noted that although the defendant department could "provide psychotherapy as well as antipsychotics and antidepressants, defendants failed to present evidence rebutting the testimony that these treatments do nothing to treat the underlying disorder." Id. at 556. The defendants failed to show, the court concluded, that another treatment could be an adequate stand-in for hormone therapy. Id.
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And providing some treatment is not the same as providing adequate treatment. The Fourth Circuit Court of A ppeals, in De'Lonta, 708 F.3d at 520, reversed the district court's dismissal of a transgender inmate's Eighth Amendment claim. The court found that the inmate, who sought sex reassignment surgery because her gender identity disorder symptoms persisted despite receiving hormones, stated a plausible deliberate indifference claim. Id.at 522, 525. Notably the court found that just because the Virginia Department of Corrections had provided the inmate with some treatment for her gender identity disorder (hormone therapy and psychological counseling) consistent with the Standards of Care, "it does not follow that they have necessarily provided her with constitutionally adequate treatment." Id. at 522, 526. The court added that total depri vation of care is not a prerequisite for a constitutional violation. Id. at 526.
Here there was testimony from the medical providers at trial that the preferred a pproach is to treat the underlying problem (the gender identity disorder) and not just the symptoms, as Dr. Schmidt proposed. "[Y]ou treat the primary problem, you don't treat symptoms," Dr. Kapila testified. And while the evidence, as recognized by the district court, was that Kosilek had shown improvement being on hormones and had obtained some measure of stability holding on to the hope of receiving surgery, all the medical providers, save Dr. Schmidt, agreed that this was not
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enough. As the Fenway Center doctors concluded early on, all signs indicated that Kosilek was still quite distressed and likely to suffer serious harm in the form of suicide if not operated on.
The take-away from the evidence: surgery was the next logical adequate treatment step. Kosilek had been on hormones for some time and the evidence, in the form of reports and testimony from the Fenway Center doctors and Drs. Forstein and Brown, supported the notion that Kosilek had undergone a real-life experience living as a woman in prison. In fact, Dr. Brown testified that in his opinion Kosilek had not only met the minimum real-life experience but had exceeded it. Dr. Brown focused on the amount of information (presumably the significant medical and disciplinary records kept in a prison setting) that existed regarding Kosilek's time in prison. Dr. Brown would not, he explained, have such a thorough record with a patient in the outside world. And Dr. Schmidt's opinion that a real-life experience could never be replicated in prison did not take into account Kosilek's situation in particular, or more generally the different realities of transgender prisoners. As the district court found, "[f]or someone like Kosilek who is serving a sentence of life without the possibility of parole, prison is, and always will be, [her] real life."
With the prerequisites for surgery satisfied, Drs. Brown, Kaufman, Forstein, Kapila, and Appelbaum all testified
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unequivocally: sex reassignment surgery was medically necessary and the only appropriate treatment for Kosilek. And they all agreed that a very likely consequence of Kosilek not receiving the surgery was a serious risk of harm, predominantly suicide. Kosilek herself testified, and the court found credibly so, that though hormone treatments had helped, she still suffers intense mental anguish over her male genitalia and believed she needed surgery. As Kosilek explained, she did not want to continue living with her male genitalia and antidepressants and psychotherapy would not change that.
We are bound by certain well-established adages: a party challenging findings of fact after a bench trial "faces a steep uphill climb" and this court "is not at liberty to start afresh." Monahan v. Romney , 625 F.3d 42, 46 (1st Cir. 2010) (internal quotation marks omitted). Here there was ample evidence to support the district court's conclusion that sex reassignment surgery was the only adequate treatment for Kosilek. In fact, substantial evidence, notwithstanding Dr. Schmidt's testimony, pointed in that direction. The court did not clearly err in deciding to credit the evidence and testimony offered by Kosilek and in concluding that the objective component of the Eighth Amendment inquiry had been satisfied. In sum, where at least three eminently qualified doctors testify without objection, in accord with widely accepted, published standards, that Kosilek suffers from a life-threatening
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disorder that renders surgery medically necessary, and the factfinder is convinced by that testimony, we are at a loss to see how this court can properly overrule that finding of fact.
VI. THE SUBJECTIVE PRONG The basis for the district court's deliberate indifference conclusion was its findings that the DOC had no valid penological reason to deny surgery. As indicated earlier, the judge primarily focused on Dennehy (as the parties stipulated), concluding that she delayed treatment, deviated from policy, inadequately reviewed security ramifications, and manufactured security concerns. The court also assessed Clarke's motivations and concluded that Clarke's failure to do a thorough security review suggested he did not operate with an open mind. Also found to be important on both the Dennehy and Clarke front: the unrealistic nature, in the court's mind, of the supposed security risks and the public and political outcry against Kosilek. The issue for this court to decide is whether the record supported these underlying factual conclusions. First, let us get a few things out of the way. Though a lot of the public and political opposition to Kosilek receiving surgery involved a rally cry that taxpayers should not have to foot the bill for the procedure, the district court did not think that cost considerations played any role in the DOC's decision to deny surgery. And both the parties agree with this point on appeal;
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there was no evidence that the DOC withheld surgery because it was
too expensive. Therefore we have no cause to consider the cost
issue.30 Second, as alluded to, the parties disagree about whether
Dennehy or Clarke or both should bear the brunt of this court's
attention on the validity-of-the-security-concerns issue. In suits
like this one, where injunctive relief is sought "to prevent a
substantial risk of serious injury from ripening into actual harm,"
we consider deliberate indifference "'in light of the prison
authorities' current attitudes and conduct,' [and] their attitudes
and conduct at the time suit is brought and persisting thereafter."
Farmer, 511 U.S. at 845 (quoting Helling v. McKinney, 509 U.S. 25,
36 (1993)). Therefore we will look at both Dennehy and Clarke.
With those preliminary points dealt with, we proceed to the merits.
30 Although the DOC has not argued the cost issue, much media commentary focused on the cost of sex reassignment surgery for Kosilek, and a prior commissioner of the DOC claimed that the surgery was an inappropriate use of taxpayer funds. As the district court noted in Kosilek II , one Boston Globe column from 2000 griped that Kosilek was "demanding that the state, meaning you and me, pay the $25,000 for a sex-change operation." 889 F. Supp. 2d at 215. While the record does not indicate if that number reflects the exact cost of the surgery today, it appears to be in the ballpark. Yet, the cost of sex reassignment surgery pales in comparison to the amount of money it seems the state will be expending to defend this lawsuit. Around a year ago, Kosilek's attorneys filed a motion in the district court seeking to have the DOC pay them over $800,000 in fees and costs. In a tentative ruling issued from the bench, Judge Wolf indicated that he is planning to order the DOC to pay around $700,000, though it does not appear that this amount has yet been formalized in a written order.
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Clearly, when decisions about medical care are made in the prison system, there are certain considerations not present in society at large. "Any professional judgment that decides an issue involving conditions of confinement must embrace security and administration and not merely medical judgments." Battista, 645 F.3d at 455. And because "security considerations . . . matter at prisons" and conflicting demands must be balanced by officials, the deliberate indifference test "leave[s] ample room for professional judgment." Id. at 453, 454.
However, as we ex plained in Battista, at some point a defendant forfeits the advantage of deference. Id. at 455. In Battista, which involved some of the same players as this case, this court considered the claim of another transgender inmate suing the Massachusetts DOC. Id. at 450. This court found the record supported the district court's determination that the DOC had shown deliberate indifference by refusing to provide the inmate with the hormone treatment that doctors had recommended for her. Id. at 450, 455. As it does in this case, the DOC cited security concerns for denying the recommended treatment. Id. at 452. Nonetheless, in reaching its result, the Battista court refused to give the DOC the advantage of deference. Id. at 455. It cited a "pattern of delays, new objections substituted for old ones, misinformation and other negatives," including an initial failure to take the inmate's diagnosis of gender identity disorder and request for
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hormones seriously, the passage of years before a substantial security justification was made, and the DOC's portrayal of the only options as withholding hormones or placing the inmate in severely constraining protective custody. Id.
Here Judge Wolf found a very similar pattern of behavior on the DOC's part and the record supports this finding. On the delay front, it has indisputably been many years since medical providers started considering the propriety of surgery for Kosilek. Dr. Forstein, back in then Commissioner Maloney's tenure (the years 1997 to 2003) during the days of Kosilek I, had recommended that Kosilek be allowed to consult with a surgeon who specialized in sex reassignment surgery. In 2003, Dr. Seil made the same recommendation, indicating that Kosilek should be allowed to meet with a specialist after a year on hormones. Then in February 2005, the Fenway Center doctors indicated after evaluating Kosilek that she should be allowed to have surgery. Dennehy herself was Deputy Commissioner during Kosilek I and was involved in the decisions made in connection with that case. And right when she started as Commissioner, Dennehy slowed th ings down. She took the unusual step in assuming an active role in a de novo blanket reassessment of the treatment of those inmates suffering from gender identity disorder, including Kosilek, despite the fact that the DOC's contract with UMass provided that the UMass medical professionals would make the decisions about the medical care for inmates with
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this disorder and the Commissioner would only step in at the end to assess any security concerns.
The DOC explains away this delay by claiming that for a long time it did not understand that UMass recommended surgery for Kosilek, but the district court did not buy it. And, in reality, the issue seems to be one of semantics. While there was testimony from Hughes and Martin that they knew UMass supported the Fenway Center doctors' recommendation for surgery, they did not think UMass was clear enough on the logistics or whether surgery was "medically necessary" (as opposed to medically optional). However, Drs. Appelbaum and Brewer made pellucid in their June 14, 2005 letter that they did not think it was within their purview to decide as a legal matter whether surgery for Kosilek was medically necessary. Thus, in the end, there was evidence that the DOC knew that Kosilek's medical providers were recommending surgery, and in response, the DOC dallied and disregarded. This behavior is significant, as in order to establish a subjective intent, "it is enough for the prisoner to show a wanton d isregard sufficiently evidenced 'by denial, delay, or interference with prescribed health care.'" Battista, 645 F.3d at 453 (quoting DesRosiers, 949 F.2d at 19); see also Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (A "deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians.").
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While the DOC maintains that it opposed surgery based on security concerns, the district court did not clearly err in finding that these concerns followed hasty, results-driven evaluations. Written procedure adopted by the DOC required that, subsequent to a medical provider's recommendation that an inmate receive treatment for gender identity disorder, the Superintendent in the relevant prison would conduct a security assessment and make a recommendation to the Commissioner. Despite this policy, the DOC concluded, as was reported in the news piece Dennehy was interviewed for, that surgery for Kosilek "would result in a security nightmare" before it ever conducted such a review.
Once the security review was eventually undertaken, the DOC did not give itself much time to complete it. Although the DOC was ordered by the court back on April 25, 2005 to conduct the review, Dennehy, the attorneys, and the superintendents did not meet until May 19 to produce the report, which was due to the court on May 27. The report was then penned predomi nantly by trial counsel and reviewed by Dennehy only a day or two before it went to Judge Wolf. This pattern of haste continued. On November 23, 2005, just nine days before expert disclosures were due, Dennehy contacted the director of the Federal Bureau of Prisons looking for a recommendation for a security expert to testify at trial. When the DOC experts did testify, it was apparent, as the court explained, that both Dumond and Beeler "failed to consider material
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aspects of Kosilek's history and personal characteristics in forming their opinions," such as her good disciplinary record or her medical records. As a result, the court gave their testimony "little weight."
As for Clarke's security review, the court criticized him for not consulting with Spencer, then still the Superintendent of MCI-Norfolk, and for apparently not reviewing any of the DOC's expert security testimony offered at trial, when deciding whether he agreed with Dennehy's stance on surgery. The DOC calls this finding disingenuous since the court's order only called for Clarke to review certain testimony and Clarke testified that accordingly this is what he did. It is unclear whether Clarke shirked his review responsibilities or genuinely felt that his review was limited in scope. But both views are permissible and when faced with two permissible views of the evidence, the district judge's choice of one of them cannot be clearly erroneous. See Monahan, 625 F.3d at 46. Plus the thoroughness of Clarke's review is undercut by the fact that he did not know some important pieces of information, such as Kosilek's age and excellent disciplinary record, when he advanced his security concerns.
Another denouement of the district court was that the security concerns the DOC ultimately proffered (following its hasty review) were "largely false" and "greatly exaggerated." This conclusion was not clearly erroneous. The DOC repeatedly protested
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that transporting Kosilek to surgery out of state would pose an insurmountable security risk. On its face, the concern seems patently unrealistic. First, the DOC undoubtedly has a large amount of experience transporting prisoners within and outside of Massachusetts. Further, the likelihood of Kosilek, who has been transported to multiple doctor's appointments without issue, fleeing while traveling to receive the surgery that she has dedicated decades of her life to obtaining is improbable enough that we need say nothing more. Almost equally as unlikely is the idea that a now sixty-four year old, post-surgical, recovering Kosilek would be able to escape when being transported back to prison. Even Clarke conceded that it was near certain that the DOC could safely transport Kosilek to and from surgery. On top of all this, there was evidence that the sur gery might be able to be performed in Massachusetts. An Illinois doctor testified at deposition that he would be willing to evaluate Kosilek for surgery and travel to Massachusetts to operate on her if all the appropriate arrangements, such as licensing requirements, could be made.
The DOC's argument that Kosilek's post-operative housing would create a security risk is more plausible than its out-ofstate-transport one, but not enough for us to think the court clearly erred in not crediting it as a bar to surgery. Ultimately there was evidence of viable housing options for Kosilek.
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Though the DOC claims that housing Kosilek in the general population at MCI-Norfolk or MCI-Framingham is not feasible, the evidence did not unequivocally support this proposition. First, Kosilek has been housed safely while living as a woman — wearing female clothing, using female cosmetics, and taking female hormones that caused her to develop breasts and a feminine body shape — in the general population at MCI-Norfolk for many years. Moreover, in connection with Kosilek I , then Commissioner Maloney was adamant that there were serious security concerns surrounding Kosilek remaining at MCI-Norfolk while receiving hormones. He reasoned that many inmates were sex offenders and a prisoner living as a female with female attributes such as breasts would create a risk of violence. But once an actual security review was done, then Superintendent Spencer reported that there were no current security concerns with Kosilek being provided estrogen therapy. And no security issues ended up cropping up after that. The DOC's aboutface calls into question their present stance with regard to the impact of surgery.
Second, with regard to housing Kosilek in the general population at MCI-Framingham, there was evidentiary support for the court's conclusion that the DOC's concerns were bogus or at least overblown. For one, the DOC claimed men are stronger than women. But Kosilek's perceived superior strength as a man did not jibe with her advanced age, physically slight frame, or the fact that
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she has been on female hormones for years. Moreover, the DOC's
claim that she would be an escape risk based on the weak perimeter
at MCI-Norfolk is also questionable when one considers Kosilek's
excellent disciplinary record and the fact that she would, at least
initially, be a post-operative patient. And while the DOC pointed
to Kosilek's life sentence as a factor compounding the risk of her
escape, Bissonnette testified that MCI-Framingham already housed
around forty life offenders and gave no explanation why Kosilek
should be viewed differently from these other lifers. Finally, in
rejecting the DOC's heightened flight risk contentions if Kosilek
were housed at MCI-Framingham, the court noted that according to
the DOC's classification manual, Kosilek's post-crime, one-time
pre-arrest flight (a flight embarked on twenty-three years ago)
should not even have been a consideration, even though Bissonnette claimed it was.31
The potential for Kosilek causing inmate climate issues
at MCI-Framingham due to the fact that she murdered her wife was
another theory the DOC floated in support of its security concern
31 According to both Spencer and Bissonnette, Kosilek also could be safely housed in their respective high-security units, though of course that would come with trade-offs for Kosilek as far as how restricted her life would be. Obviously Kosilek is aware of those trade-offs and persists in her request for surgery.
There was also evidence of another scenario — an out-of-state transfer for Kosilek. The DOC's only counter to this was the speculative ground advanced by Clarke that there was no guarantee another state would take or keep Kosilek. But there was no evidence that either of these scenarios were explored or probable.
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argument. But the possibility of one inmate being offensive to another based on the crime the other inmate committed is not a new phenomenon, and the evidence was that there were procedures in place to deal with these types of situations at MCI-Framingham, such as moving prisoners around. Not to mention, as Clarke recognized, his former employer, the Washington Department of Corrections, housed a post-operative female transgender inmate, also serving a life sentence for murdering a female relation, without security or climate issues.
Aside from the DOC's purported security concerns, the court pointed to other evidence which it thought suggested the DOC's denial of surgery was not prompted by valid penological concerns but rather a deliberate indifference to Kosilek's medical needs. For instance, there was evidence that the DOC did not leave things up to chance when it sought an opinion about whether an operation for Kosilek was even warranted. The DOC knew before it retained Osborne that she was assisting other departments of corrections in defending litigation filed by transgender prisoners. In fact, Hughes specifically noted that Osborne would be more sympathetic to the DOC's concerns and that she did not believe that sex reassignment surgery was appropriate in the corrections setting. It was not a stretch for the court to disbelieve Dennehy's testimony that Osborne's very predictable opposition to
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providing Kosilek with surgery did not play a role in her selection.
The public disapproval of Kosilek's quest was another piece of the puzzle. Even though Dennehy and Clarke denied being motivated by avoidance of public controversy, the district court found this testimony lacking in credibility and concluded that Dennehy and Clarke were keenly aware of and in fact motivated by the outcry. Evidence supporting the court's finding included Dennehy's press appearance in the news piece featuring her senator acquaintance who opposed the surgery; Dennehy's testimony that she was aware that some politicians were against Kosilek being provided with surgery and that she was generally aware of the negative news coverage; and Clarke's admission that he received the two letters from the seventeen unhappy state senators and twenty-five unhappy representatives.
This evidence could be conceivably viewed as not overwhelming in amount. However it was up to the district court to make a credibility call, and Judge Wolf did not believe Dennehy's or Clarke's testimony on the impact of public opinion on their decisions. Credibility calls are something we seldom second guess in this context. Rather we give due regard to the judge's opportunity to assess witness credibility. Fed. R. Civ P. 52(a)(6); Monahan, 625 F.3d at 46. This deference extends to "inferences drawn from the underlying facts, and if the trial
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court's reading of the record

[with respect to an actor's

motivation] is plausible, appellate review is at an end." Janeir,o

457 F.3d at 138-39 (internal quotation marks omitted) (alteration

in original). Here the district court's impression of Dennehy and

Clarke's motivations was certainly plausible. Furthermore,

adequate record support for a court's conclusion that "'deliberate

indifference' has been established — or an unreasonable

professional judgment exercised" — can exist even though that

indifference "does not rest on any established sinister motive or

'purpose' to do harm." Battista , 645 F.3d at 455. It is enough

that the district court had a reasonable basis for its perception

that the DOC had shown a pattern of "delays, poor explanations,

missteps, changes in position and rigidities." Id. And as we

chronicled above, there was ample evidentiary support for this

finding. Finding no clear error, we defer to the district court's

assessment of Dennehy's and Clarke's testimony and the other

evidence on the issue.

Finally, the DOC offered one last argument to counter the

court's finding of deliberate indifference. Besides the various

security concerns it alleged, there was a good amount of testimony

from DOC officials and experts that it is not wise to give in to

inmate threats of suicide. The fear seems to be that other inmates

will mimic Kosilek's threats of suicide in order to receive some

benefit (let's say, desirous medical treatment or a preferable

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housing assignment) based on Kosilek's threats in this case. As a general proposition we agree that the DOC should not have to yield to an inmate's threats. However, we do not see Kosilek's particular suicide issue as quite the concern the DOC makes it out to be. First, the evidence was that Kosilek, who had previously attempted both suicide and self-castration, did not manufacture a suicide threat to game the system. Sadly, it is not unheard of for inmates suffering from gender identity disorder to engage in selfdestructive behavior. See, e.g., Konitzer v. Frank, 711 F. Supp. 2d 874, 879 (E.D. Wis. 2010) (transgender inmate cut open and wounded his scrotum on multiple occasions while incarcerated); De'Lonta v. Angelone , 330 F.3d 630, 632 (4th Cir. 2003) (transgender inmate stabbed or cut his genitals on more than twenty occasions after the department of corrections stopped his hormone regimen). Second, as far as other inmates are concerned, the DOC admittedly employs competent mental health professionals who can no doubt assess whether an inmate's threats of suicide are real or manufactured. And if they are real, they can be addressed appropriately on an individualized basis. Finally, and more fundamentally, even though deterring other inmates from potentially engaging in undesirable behavior may be a valid penal objective, it is not a reason to withhold medical care that has been deemed medically necessary for a particular inmate. Our ultimate conclusion: the district court did not err in finding the security
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rationale submitted by the DOC for not providing Kosilek with surgery largely false and greatly exaggerated.
VII. CONCLUSION We are assuredly mindful of the difficult tasks faced by prison officials every day. But as the Supreme Court has cautioned, while sensitivity and deference to these tasks is warranted, "[c]ourts nevertheless must not shrink from their obligation to 'enforce the constitutional rights of all 'persons,' including prisoners.'" Brown v. Plata , 131 S. Ct. 1910, 1928 (2011) (quoting Cruz v. Beto , 405 U.S. 319, 321 (1972) (per curiam)). And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox. Here the trial judge had the opportunity to preside over two lawsuits involving the same players and similar allegations, to hear evidence in this case over the course of a twenty-eight day trial, to question witnesses, to assess credibility, to review a large volume of exhibits, and, in general, to live with this case for twelve years (twenty years if you count Kosilek I). The judge was well-placed to make the factual findings he made, and there is certainly evidentiary support for those findings. Those findings — that Kosilek has a serious medical need for the surgery, and that the DOC refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that
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the DOC has violated Kosilek's Eighth Amendment rights. The court did not err in granting Kosilek the injunctive relief she sought.
Affirmed. -Dissenting Opinion Follows-
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TORRUELLA, Circuit Judge, Dissenting. Lest we lose sight of the rule that we are c alled upon to enforce, stretching it beyond the bounds of its intended purpose, it is perhaps appropriate to begin by reciting the text of the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. In applying any rule, precise demarcation of its reach is both appropriate and necessary. Where these boundaries are ignored, the results are most often unforeseen, unintended, and unwarranted. It is only through careful attention to the countervailing interests that prescribe the sweep of a rule that we are best able to identify both those situations that fall clearly within its bounds, and those complexities that skirt along its outermost edges. Such limitations serve more than an exclusionary purpose; by establishing a rule's pr oper scope, they ensure the effectiveness of its protections when correctly and adeptly applied.
With due respect to the majority, I am forced to dissent because I cannot support what is, in my view, an outcome that proceeds with little recognition of such boundaries. Instead, it allows to stand a decision that, finding its foundation in several erroneous assumptions, reaches a result beyond the limits of our established Eighth Amendment jurisprudence.
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I. Kosilek's History and Treatment Michelle Kosilek ("Kosilek") is an anatomically male prisoner who suffers from severe gender identity disorder ("GID"). In 1992, Kosilek was convicted of murdering he3r2 wife and sentenced to life imprisonment without the possibility of parole. While in prison, Kosilek legally changed her name from "Robert" to "Michelle" and began living as a woman to the extent possible within a male prison environment. Kosilek has previously sought legal redress for what she alleged were constitutional shortcomings in the Commonwealth of Massachusetts's treatment of prisoners with GID. See Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002). Resolved in 2002, this litigation failed to substantiate any Eighth Amendment violations but ultimately contributed to changes in the care and treatment of GID prisoners, including Kosilek. Today, the Massachusetts Department of Corrections ("DOC") provides Kosilek with a bevy of ameliorative measures aimed at treating her GID. These measures, as recommended by the DOC's medical advisors, include: psychotherapy, hormone therapy, electrolysis for facial hair removal, and access to female clothing and personal items (including underwear and cosmetics) such as
32The district court adopted masculine pronouns in reference to Kosilek's anatomical gender. See Kosilek v. Spencer , 889 F. Supp. 2d 190 (D. Mass. 2012). Kosilek, however, self-identifies as female and has undertaken significant efforts, including through treatment provided by the DOC, to formalize this gender presentation. I therefore follow the majority's practice of using female pronouns.
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those provided to inmates at MCI-Framingham, Massachusetts's only

female prison. The DOC's

medical providers, Kosilek's

psychiatrist, and Kosilek herself testified as to the positive

impact these measures have had on her mental state and self-esteem.

Nonetheless, the district court, validated by the

majority in this appeal, has now ordered that the DOC provide

Kosilek with sex reassignment surgery ("SRS") to change her male

sex organs to female. According to the district court, this

surgery is the only adequate medical treatment for the serious risk

posed by Kosilek's GID; although Kosilek is not now suicidal, a

failure to provide the surgery could result in the deterioration of

her mental state and the potential for future self-harm.

33

Consequently, in the district court's mind, any other treatment --

namely, the continued provision of psychotherapy, hormonal

treatments, and female attire, in addition to treating any

potential suicidality through antidepressants and increased therapy

-- is violative of the Eighth Amendment.

II. The Eighth Amendment

Fundamental to our understanding of criminal sentencing

and penological standards is the requirement that "cruel and

unusual punishments [not be] inflicted" upon those convicted of a

crime. U.S. Const. amend. VIII. In adopting this prohibition,

33Kosilek has previously attempted suicide and self-castration while in custody. These attempts were made prior to 1992, while Kosilek was awaiting trial on murder charges.
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"Americans . . . feared the imposition of torture and other cruel punishments not only by judges acting beyond their lawful authority, but also by legislatures engaged in making the laws by which judicial authority would be measured." Ingraham v. Wright, 430 U.S. 651, 665 (1977) (citing Weems v. United States, 217 U.S. 349, 371-73 (1910)).
Later courts made apparent that the Eighth Amendment's restrictions on criminal punishment also governed the treatment to which prisoners were entitled when they became sick or injured while in custody. After all, where "society takes from prisoners the means to provide for their own needs[,] . . . [a] prison's failure to provide sustenance [and care] for inmates may actually produce physical 'torture or [] lingering death.'" Brownv. Plata, 131 S. Ct. 1910, 1928 (2011) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). The Eighth Amendment therefore proscribes medical care that does not rise to the level of "the evolving standards of decency that mark the progress of a maturing society." Estelle , 429 U.S. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
That appropriate medical care must be provided does not, however, mean that inmates may seek and receive the care of their choosing. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987). Rather, this worthy pledge of protection is made practicable through the creation of a floor below which the standard of care must not fall. Prison officials commit no
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violation so long as the medical care provided is minimally adequate. See id.; Leavitt v. Corr. Med. Servs., Inc. , 645 F.3d 484, 497 (1st Cir. 2011) (stating that an Eighth Amendment violation occurs when the medical care provided is "so inadequate as to constitute an unnecessary and wanton infliction of pain or [is] repugnant to the conscience of mankind" (quoting Estelle, 429 U.S. at 105-06)). "[T]his obligation is met in full measure by the provision of . . . services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." DeCologero, 821 F.2d at 43. This limit on the scope of the Eighth Amendment's protection is clear: care need not be ideal, so long as it is both diligent and within the bounds of prudence.
Neither do all instances of inadequate care constitute constitutional violations. To substantiate a constitutional claim there must be proof that the government was "deliberately indifferent" to this lack of treatment. See Battista v. Clarke, 645 F.3d 449, 452 (1st Cir. 2011) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994); Estelle, 429 U.S. at 104-05). A finding of deliberate indifference requires two showings. First, a prisoner must prove his or her medical need is objectively serious. Mahan v. Plymouth Cnty. House of Corr. , 64 F.3d 14, 17-18 (1st Cir. 1995). A serious medical need is "one that has been diagnosed by a physician as mandating treatment, or one that is so objectively
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obvious that even a lay person would easily recognize the necessity for a doctor's attention." Gaudreault v. Municipality of Salem , 923 F.2d 203, 208 (1st Cir. 1990) (citations omitted). Second, a prisoner must prove subjective intent to deny care on the part of prison officials. Farmer , 511 U.S. at 837 (reasoning that the Eighth Amendment's prohibition of punishment means that it reaches only the intentional provision of inadequate medical care). Therefore, a prisoner must establish both that an official was "aware of facts from which [an] inference [of a substantial risk of serious harm] could be drawn" and that the official in fact drew the inference. Id. It follows that a showing of ordinary negligence is insufficient to establish a constitutional violation; deliberate indifference requires a level of obstinacy akin to criminal recklessness. Giroux v. Somerset Cnty., 178 F.3d 28, 32 (1st Cir. 1999).
A final boundary delimiting the Eighth Amendment's scope of protection is one founded in the recognition that "security considerations also matter at prisons . . . and administrators have to balance conflicting demands." Battista , 645 F.3d at 454. Therefore, deference is given to the reasonable judgments of prison officials "so long as [those] balancing judgments are within the realm of reason and made in good faith." Id. Although prison officials may "forfeit[] the advantage of deference" when their stated rationales for the rejection of medically prescribed
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treatment are pretextual, id. at 455, an assessment of deliberate indifference must still "embrace security and administration, [] not merely medical judgments." Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993).
III. Clear Error Review It is beyond argument that our standard of review in cases such as this one falls upon a continuum, ranging from clear error for questions of pure fact, to de novo for questions of pure law. See, e.g., United States v. Mariano, 983 F.2d 1150, 1158 (1st Cir. 1993). Moreover, resolving Kosilek's claim certainly requires the careful and thorough consideration of innumerable factual findings, including the weighing and assessment of expansive testimony provided by both medical personnel and prison officials. That this element of our task includes a grant of deference to the district court is not in dispute. Starting from this shared presumption, however, my path quickly diverges from that of the majority. Namely, I take issue with the majority's conclusion that all issues in this case fall squarely on the factual end of our spectrum, and that, consequently, clear error review applies to all elements of the district court's decision, including its ultimate conclusions. Recognizing, as the majority does, that our precedent is far from crystallized on the matter, see ante at 63, I would not be so quick to leave such legal determinations bereft of searching appellate
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review.34 Neither, I believe, is that the intended result of our
standards.
At a minimum, our court should carefully apply a more
critical eye to the district court's distillation of factual
findings into legal conclusions, reviewing those ultimate
conclusions with significantly less deference. See, e.g., Hallett
v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) ("The district court's
factual findings regarding conditions at the Prison are reviewed
for clear error. However, its conclusion that the facts do not
34While "no broader review is authorized . . . simply because this is a constitutional case," see Maine v. Taylor, 477 U.S. 131, 145 (1986), I believe that where such rights are implicated in cases presenting closely intertwined questions of law and fact our court would be wise to tread carefully before applying, in toto, a clearly erroneous standard of review. Although the Supreme Court has rejected the application of a higher standard of review in constitutional cases where the question at hand was one purely of "historical fact," the Court has not expressly foreclosed heightened review to other questions involving "legal, as well as factual, elements." Hernandez v. New York , 500 U.S. 352, 366-67 (1991). The majority makes much of the fact that I have previously explained the existence of a circuit split -- in which the First Circuit has not taken a side -- regarding whether heightened review of underlying facts would appropriately apply in cases in which a right is protected below. United States v. Frabizio, 459 F.3d 80, 96 (1st Cir. 2006) (Torruella, J., concurring). Critically, however, I do not now sound a call for plenary review of what are wholly factual findings. Cf. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984). Rather, I intend a more general point, cautioning that where factual determinations and constitutional standards are closely related we ought to carefully ensure that such subordinate determinations do not erroneously cast the die of our legal conclusions. After all, our ultimate conclusions derive unquestionably from legally operative standards, and it is undoubtedly the duty of appellate courts to "to clarify[] [such] legal principles." Ornelasv. United States, 517 U.S. 690, 697 (1996).
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demonstrate an Eighth Amendment violation is a question of law that we review de novo." (citing Campbell v. Wood, 18 F.3d 662, 681 (9th Cir. 1994) (en banc))); 35 Alberti v. Klevenhagen , 790 F.2d 1220, 1225 (5th Cir. 1986) ("[O]nce the facts are established, the issue of whether these facts constitute a violation of constitutional rights is a question of law that may be assayed anew upon appeal."). Any deference must also admit of exception where the trial court bases its findings on an "erroneous interpretation of the standard to be applied," Vinick v. United States, 205 F.3d 1, 7 (1st Cir. 2000) (quotation marks omitted) (quoting United States v. Parke, Davis & Co. , 362 U.S. 29, 44 (1960), for even under deferential review we have a duty to "look carefully . . . to detect infection from legal error," Sweeneyv. Bd. of Trs. of Keene State Coll., 604 F.2d 106, 109 n.2.
While recognizing that the delineation between questions of law and fact is often less than pristine, see, e.g., Miller v. Fenton, 474 U.S. 104, 113-14 (1985), the inherent difficulty in our task cannot lead to the abdication of our responsibility to identify and strenuously review a district court's conclusions of law, even where those conclusions are not easy to parse from their
35The majority is correct to note that the Ninth Circuit has found the question of adequate medical alternatives to be one of fact. Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012). Yet, Ninth Circuit practice includes plenary review of a district court's eventual Eighth Amendment holding. Thus, I seriously question the majority's proclamation that our sister circuit "takes a similar approach" to the one they now advocate.
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factual underpinnings. I cannot agree, therefore, with the
majority's failure to undertake any inquiry more searching than that provided by clear error review.36
IV. The District Court's Conclusions
In its review, the district court undertook to answer
five distinct questions which, when answered in the affirmative, it
found substantiated a constitutional violation deserving of remedy.
These were: (1) whether Kosilek had a serious medical need; (2)
whether SRS was the only adequate treatment for that need; (3)
whether the DOC knew Kosilek was at high risk of serious medical
harm absent SRS; (4) whether the DOC's denial of treatment was made
in bad faith or for pretextual reasons; and (5) whether the DOC's
conduct, if found to be unconstitutional, would continue in the
future.
In my view, by parsing the issue into such discrete,
hermetic questions, the district court's opinion artfully shielded
from review the complex and oft-interrelated nature of our Eighth
36The majority notes that our court has previously upheld a finding of deliberate indifference where the district court had a "reasonable basis" for its finding. Battista , 645 F.3d at 455. That same opinion, however, made clear that a finding of deliberate indifference was appropriately "reviewed on appeal more closely than [] district court fact-finding." Id. at 454 (citations omitted). While the majority admits of this subtlety, see ante at 64, its review then appears to abdicate such nuance and apply maximum deference throughout. In any case, where, as here, the district court's determinations were infected by various errors as described below, I believe the majority presumes too much regarding their reasonableness.
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Amendment inquiry. See Leavitt, 645 F.3d at 498 ("[T]he subjective deliberate indifference inquiry may overlap with the objective serious medical need determination; similar evidence, including evidence of adverse effects, may be relevant to both components." (internal quotation marks and citation omitted)); DesRosiers v. Moran, 949 F.2d 15, 18-19 (1st Cir. 1991) (recognizing that "[i]n practice" the objective and subjective components of our deliberate indifference standards "may overlap or merge"). In treating Kosilek's contentions, therefore, I adopt our court's past practice of assessing the district court's "several subordinate findings" in a more holistic manner.37 Battista, 645 F.3d at 452. This approach gives due recognition to the fact that "[m]edical need' in real life is an elastic term," id. at 454, and acknowledges that any determination of a treatment's adequacy must carefully balance the many competing concerns faced by prison officials. I begin with a discussion of the district court's errors, as I see them. A. Prudent Medical Care
The district court faced a question about the practice of prudent medical professionals that, at its crux, hinged on whether the DOC's preferred treatment plan -- advocated by Dr. Schmidt -was a medically adequate response to Kosilek's GID. Ultimately,
37That GID is a serious medical condition is not contested. Further, the fifth question need only be reached upon establishing a constitutional violation, for the purposes of crafting a remedy. Therefore, I focus on only the second, third, and fourth questions presented.
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the district court, in a decision now upheld by the majority, determined that Dr. Schmidt was not a prudent professional, based largely on his statements of equivocation regarding use of the Harry Benjamin Standards of Care (the "Standards of Care" or the "Standards"). Indeed, Dr. Schmidt testified that he viewed the Standards as "guidelines." He also ma de clear that he found the protocol laid out on the Standards of Care "very useful for patients," and that he "referr[ed] [patients] to the protocol and ask[ed] them to become familiar with them." As to SRS, Dr. Schimdt stated that he "neither advocate[s] for nor . . . speak[s] against the decision[]." Instead, he "leaves[s] the decision-making in the hands of the patients." This is far from what the district court, now affirmed by the majority, characterizes as an outright rejection of the Standards' applicability.
Still, the district court took particular issue with Dr. Schmidt's practice of not writing letters of recommendation for patients seeking surgery. The district court's concern was predicated on its belief that letters of recommendation are required by the Standards of Care, and "[a]ccordingly, prudent professionals . . . write such letters." Kosilek, 889 F. Supp. 2d at 233. This reasoning contains an inferential leap. That there is a predicate requirement to a medical procedure does not lead inexorably to the conclusion that prudence mandates assisting patients to meet that requirement. For instance, if a surgery
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could not be conducted on an individual under a particular age

without several letters of recommendation, a medical professional

who refused to write such a letter based on their understanding of

that treatment's appropriateness for youths would not be,

necessarily, imprudent.

In affirming the district court's finding that

Dr. Schmidt was not prudent, the majority also assigns significant

weight to the fact that, despite having treated approximately 300

individuals with GID, Dr. Schmidt does not appear to believe

surgery was ever "medically necessary." The majority disparages

this belief as clearly contrary to the Standards of Care, and

therefore clearly imprudent. Yet, again, Dr. Schmidt admits to

using the standards for guidance and to "maintain[ing] a neutral

position" on surgery. At the request of his patients, he also

released medical files to surgeons and wrote letters indicating,

where appropriate, that there were

no contra-indications to

surgery. His testimony regarding his disagreement that surgery was

medically necessary stemmed from his belief that patients

exhibiting particularly high levels of distress often suffer from

co-morbid conditions that require treatment in their own right.

Moreover, the Standards of Care themselves admit of just

this sort of flexible application, not simply strict adherence.

The first page of the Standards of Care states unequivocally that,

"[t]he Standards of Care are Clinical Guidelines;" it continues on

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to make clear that the Standards are "intended to provide flexible directions" and that "[a]ll readers should be aware of the limitations of knowledge in the area." Standards of Care at 1 (emphasis added). But see Kosilek, 889 F. Supp. 2d at 236 (citing O'Donnabhain v. Comm'r , 134 T.C. 34, 45 (U.S. Tax Ct. 2010)) (relying on O'Donnabhain's rejection of any characterization of the Standards of Care as "guidelines" as imprudent). The Standards of Care further provide that "[i]ndividual professionals and organized programs may modify them." Standards of Care at 2. This much was made clear in Dr. Levine's testimony:
[T]he "Standards of Care" was a consensus document from people from seven different countries or something, you know, who come from different systems, and it was a political process that forged together a set of standards . . . . So "prudent" is a wonderful word, but it's not like it has one simple definition. In fact, Dr. Levine, who was an independent expert hired by the district court, expressly stated in his initial report that, while not popular, Dr. Schmidt's view was within "prudent professional standards." In its opinion, however, the district court took significant pains to recast this finding, dismissing it as erroneous based on Dr. Levine's purported refusal to testify, at least initially, as to how a medically prudent professional would act if all countervailing interests were set aside . In other words, the court required Dr. Levine to presume that a patient had fully met all the readiness criteria in the Standards of Care and
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faced no other extrinsic obstacles to surgery (such as money,
safety, or external pressure). The district court then hung its
hat on the fact that, "[e]liminating these considerations and any
security concerns, Dr. Levine opined that a prudent professional
would not deny Kosilek sex reassignment surgery." Kosilek, 889 F.
Supp. 2d at 235 (emphasis added).
Medical prudence, however, does not exist in a bubble,
and a standard of minimal adequacy must inherently admit of
conditions that are less than ideal. See Rhodes v. Chapman, 452
U.S. 337, 367 (1981) (Brennan, J., concurring) ("[C]ases are not
decided in the abstract. A court is under the obligation to
examine the actual effect of challenged conditions . . . ."). In
fact, Dr. Levine's testimony recognizes just such nuance -- even if
the district court's re ading of it does not. Dr. Levine stated
that while p rudent professionals would not deny SRS to eligible
individuals, "life, [and] reality" sometimes would. In those
instances, prudent professionals "bring to bear" the same methods
described by Dr. Schmidt to otherwise alleviate the individual's symptoms of GID.38
38In my reading, Dr. Schmidt never counseled for denying surgery. His testimony suggested deference to a patient's choice and willingness to release medical records to qualified surgeons. He then expressed concern as to whether a prisoner could ever meet readiness criteria for surgery, noting disagreement with the district court's presumption that a real-life experience could necessarily occur behind bars. Although admonishing Dr. Schmidt for purportedly ignoring the Standards of Care, the district court discredited his testimony in part based on this expression of
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Nonetheless, the district court suggested that portions of Dr. Levine's testimony might be properly "disregard[ed]" based on the purported change in his opinion. Kosilek, 889 F. Supp. 2d at 234 n.15. I see no merit in this assertion, and moreover believe that it evidences the district court's troublesome practice of rejecting testimony -- even the testimony of an impartial, court-appointed expert -- where it explored the very real nuances implicit in defining prudent care. For one, the reason for any such "change" is clearly evidenced in the record: the district court demanded it. For another, Dr. Levine's testimony, even after he was admonished for undertaking an assessment recognizing the realities in which GID patients live, was not inconsistent.
He began, in his written report, by stating that Dr. Schmidt's method, while not preferred, was prudent. In later testimony, after specifically predicating his statement with an acknowledgment that "the 'Standards of Care' [] have to be interpreted . . . by the life of the environment in which Michelle Kosilek is going to live," Dr. Levine again concluded that Dr. Schmidt's proposed treatment was not "imprudent." The following exchange then occurred:
concern regarding whether a real-life experience -- a key component of those Standards -- could occur in prison. See Kosilek, 889 F. Supp. 2d at 235. In fact, in combination with the district court's insistence that Dr. Levine ignore questions regarding this reallife experience and instead presume that the experience necessarily can and did occur, this suggests a purposeful tipping of the testimonial scales away from an area of potentially worthy inquiry.
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THE COURT: But is this an area in which you think prudent professionals can reasonably differ as to what is at least minimally adequate treatment for this condition? [DR. LEVINE]: Yes, and do. Therefore, in addition to finding no internal inconsistencies in Dr. Levine's expert testimony, see Mitchell v. United States, 141 F.3d 8, 17 (1st Cir. 1998), I disagree that he ever testified to Dr. Schmidt's proposed method of care being outside professional standards. At his most negative, Dr. Levine stated that Dr. Schmidt's proposal would be "uncompassionate" and "unpopular." At his most mincing, he referred to Dr. Schmidt's proposed method of care as "not exactly imprudent."39 As such, the district court's proffered conclusion that Dr. Levine found Dr. Schmidt's proposal unreasonable is unsupported by the record. Insofar as the majority now affirms the same, erroneous reading, I find their conclusion to be equally flawed. B. Serious Risk It is undisputed that surgery for Kosilek would be an appropriate option for treating her GID. This fact is far from determinative, however, of whether a choice not to provide the surgery gives rise to a deprivation of constitutional magnitude. See Cameron, 990 F.2d at 20 (finding that prison officials are not
39This admittedly unenthusiastic endorsement referenced Dr. Schmidt's proposed treatment presuming that there was a total absence of countervailing factors to consider in developing a treatment plan.
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"bound to do what the doctors say is best . . . even if the doctors are unanimous"). If an alternative short of surgery is still sufficient to address, with minimal adequacy, Kosilek's medical need, no constitutional claim can arise. See DeCologero, 821 F.2d at 43.
The district court reasoned, however, that any treatment except surgery is necessarily inadequate, given that Kosilek's medical providers testified to a likelihood that a denial of surgery would signific antly increase Kosilek's risk of severe emotional distress, potentially manifesting in self-harm. Moreover both the district court and majority rejected, as violative of the Eighth Amendment, the DOC's plan to treat any symptoms of heightened distress and suicide ideation with additional psychotherapy and the possible use of antidepressants.
This conclusion rests on an artful -- and in my mind erroneous -- compartmentalization of the DOC's preferred treatment plan. The district court seeks to draw a clear line between the cause of Kosilek's distress (GID) and her symptoms (emotional distress and possible suicide ideation).40 In support of the same reasoning, the majority cites a Seventh Circuit case for the
40It is rare, to my understanding, that medical treatments may so neatly and completely delineate between symptom and disease. Certainly, were a patient to present with signs of both obesity and severe hypertension, it is an uncommon doctor that would disparage a peer for prescribing blood-pressure medication, although designed no doubt to treat a symptom.
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proposition that "psychotherapy as well as antipsychotics and antidepressants . . . do nothing to treat the underlying disorder [of GID]." See Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011). Critically, however, in Fields the prisoner was denied any hormonal treatment, meaning that the court was called on to resolve a question of whether psychotherapy and antidepressants alone could sufficiently treat GID. In contrast, here the question was whether the continued provision of all ameliorative measures currently afforded Kosilek in addition to antidepressants and psychotherapy would be constitutionally adequate.
Indeed, the DOC's proposed method of treating Kosilek's distress and desire to self-harm cannot be assessed piecemeal, but must be addressed in light of Kosilek's entire course of treatment. Were surgery not provided, the provision of psychotherapy, hormones, electrolysis, and female clothing and cosmetics would continue to represent a very real and direct treatment for Kosilek's GID. Moreover, although she remains distressed, Kosilek admits that the DOC's current treatment regimen has led to a significant stabilization in her mental state. Kosilek's doctors testified to the same, highlighting her "joy around being feminized." This claim is also borne out by the long passage of time since she exhibited symptoms of suicide ideation or attempted to self-castrate. The provision of additional, supplemental care specifically targeting her risk of suicide cannot, in my reading,
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render that treatment, which has successfully mitigated her
symptoms for nearly a decade, suddenly inadequate.41
What is clear from the record is that the DOC has
provided Kosilek with care sufficient to decrease her levels of
distress and manage her desires to self-harm. On the whole, this
suggested course of treatment appears tailored to Kosilek's current
symptoms and adequately prepared to address her future ones in a
manner that is in no way "so inadequate as to shock the
conscience." Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir. 1991)
(internal quotation marks omitted) (quoting Sires v. Berman, 834
F.2d 9, 13 (1st Cir. 1987); see also DeCologero, 821 F.2d at 43
(finding that care is adequate where it is "reasonably commensurate
with modern medical science").
C. Security Concerns
In issues of security, "[p]rison administrators . . .
should be accorded wide-ranging deference in the adoption and
41The Massachusetts DOC has recently undertaken a significant effort to ensure it is well-prepared to address the needs of prisoners exhibiting symptoms of suicidality. See Disability Law Ctr. v. Mass. Dep't of Corr. , C.A. No. 07-10463-MLW, 2012 WL 1237760 (D. Mass. Apr. 12, 2012). I see nothing to suggest such care, if provided, would not itself be thorough and adequate. Moreover, it bears consideration that Kosilek is not currently suicidal and that although her medical providers suggest a likelihood that suicide ideation will reemerge if SRS is not provided, there is no indication as to the severity, duration, or even sole causal factors of this potential result. As Dr. Levine testified, the presumption that Kosilek may become suicidal must also recognize the potential that this impulse is not stagnant, but might naturally -- and with the assistance of therapy -- dissipate or "evolve over time."
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execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish , 441 U.S. 520, 547 (1979). Although we cannot "abdicate our responsibility to ensure that the limits imposed by the Constitution are not ignored," Blackburn v. Snow, 771 F.2d 556, 562 (1st Cir. 1985), we do not sit to substitute our own judgment for that of prison administrators. Nonetheless, believing that the DOC's cited security concerns were mere pretext, the district court declined to afford them weight. Kosilek, 889 F. Supp. 2d at 247. The majority affirmed this denial; a decision that I believe ignores the very real security issues presented by the DOC.
That various security concerns might arise in the context of a prison setting in which a post-operative, male-to-female transsexual is housed with male prisoners takes no great stretch of the imagination.42 In fact, nearly every case to consider the provision of medical care to prisoners at some point relies on the Supreme Court's 1994 decision in Farmer v. Brennan, 511 U.S. 825 (1994). In that case, an Eighth Amendment claim was predicated on
42I find the DOC's concerns regarding Kosilek's post-operative housing significant. I do not, however, dispute the district court's finding, affirmed by the majority, that any security concerns regarding Kosilek's ability to escape custody while being transported for surgery are, at best, extremely minimal. Prison officials have significant experience transporting prisoners, and both Kosilek's age and history of good behavior counsel in favor of safe transport.
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prison officials' failure to provide (in part through segregation) for the safety of a pre -operative transsexual. Id. at 847. The court reasoned that by knowingly allowing the petitioner to remain in general custody at a male prison despite his feminine body shape, clothing, and slight stat ure, prison officials could illustrate the sort of subjective indifference necessary to sustain an Eighth Amendment claim. Id.
Despite the obviousness of such risks, the majority reasons that no clear error occurred, in part because the DOC's security review of MCI-Norfolk was started, completed, and submitted in a matter of weeks. With speed, it suggests, comes inadequacy. I am not so ready to adopt that presumption. The record shows that all involved parties met for the first time on May 19, 2005, to discuss a report that was due by May 27, 2005. That this was their first meeting, however, does not necessarily mean that it was the first instance in which the various individuals considered the issues and questions implicit in ensuring a safe environment for prisoners undergoing treatment for GID.
The district court and the majority also highlight the fact that experts retained by the DOC were not wholly knowledgeable about Kosilek's personal characteristics, such as age and record of good behavior. Although this shortcoming in their knowledge was not ideal, I cannot credit any presumption that these lapses
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rendered the experts unable or unqualified to speak to the general

security concerns created by housing a post-operative transsexual

in a prison's general population. Kosilek's record of good

behavior, for instance, has no bearing on an assessment of whether

other prisoners might threaten or harm her based on her post-

operative anatomy and gender presentation.

Further, in reaching its conclusion the district court

stated that "the DOC [could] reasonably assure the safety of

Kosilek and others after sex reassignment surgery by housing

Kosilek in a segregated protective custody unit." Kosilek, 889 F.

Supp. 2d at 243. Yet, the court also warned that "it may

foreseeably be argued that keeping Kosilek in

segregation is

unnecessary and a form of extrajudicial punishment that is

prohibited by the Eighth Amendment." Id. at 245. The tension

between these statements is clear, and the district court's proffer

that we disregard security concerns based on the existence of a

possibility for segregated housing appears unreasonable when, in

short turn, they assert that such a course of action would violate

the Constitution.

The majority defends the district court's determination

in part by noting that Kosilek may continue to be housed in MCI-

Norfolk's general population where no security issues have arisen

during her tenure. The fact that no such issues have arisen in the

past, however, does not n ecessarily render inappropriate or

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unreasonable the DOC's concerns that issues might present
themselves in Kosilek's post-operative future. Certainly, courts
cannot and should not strip from prison officials the ability to
consider and implement prophylactic solutions to foreseeable issues
reasonably within the scope of their security expertise. In fact,
such a retroactive style of administration would, in itself, seem
to amount to just the sort of indifference to credible threats of
harm that might constitute a constitutional violation. SeeCortés-
Quiñones v. Jiménez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)
(stating that prison officials have a duty to take reasonable
measures to protect prisoners from harm).
Ultimately, in a feat of conclusory reasoning, the
district court overlooked the legitimacy of the DOC's concern based
on its belief that the decision to deny SRS was a response to "public and political criticism." 43 Kosilek , 889 F. Supp. 2d at
240. The evidence on record tending to support this theory
includes a press appearance by Commissioner Dennehy, negative news
coverage regarding Kosilek's request for surgery, and letters
received by the DOC from members of the Massachusetts legislature.
43Perhaps cognizant of the inferential leap made by the district court, see ante at 85, the majority places greater emphasis on other rationales mentioned by the district court. The district court's opinion, however, makes clear that its conclusion rested predominantly on concern about public opinion. Kosile,k 889 F. Supp. 2d at 240 ("[T]he defendant has refused to provide . . . [SRS] in order to avoid public and political criticism. This not a legitimate penological purpose. Therefore, the defendant's conduct . . . violates the Eighth Amendment.").
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Surely, this evidence provides ample support for the fact that public criticism existed and was leveled at the DOC, both by the media and politicians. It in no way, however, proves the DOC's reasons for denying Kosilek's request or shows that this denial was motivated specifically by the public outcry.
In any case, even if the district court's finding that public criticism played a role in shaping the DOC's decision is accepted wholesale,44 this finding might at most counsel for the DOC to lose "the advantage of deference." Battista , 645 F.3d at 455 (emphasis added). It cannot, however, suddenly render superfluous the very real concerns the DOC expressed about housing Kosilek after her operation. I find no license in the record for the district court to have wholly dismissed the validity of these concerns.
V. Kosilek's Eighth Amendment Claim Having set forth my disagreements with the district court's conclusions regarding the scope of medical prudence, the potential for adequate treatment short of surgery, and the DOC's security concerns, I turn to the task of determining whether Kosilek has proven deliberate indifference to a serious medical need. Cameron , 990 F.2d at 20 ("Indeed, when it comes to
44As the majority notes, c redibility determinations of this type are given particular deference by our court. See ante at 8586. Thus, while I see no extrinsic support in the record, I recognize I cannot equal the district court's ability to hear and weigh testimony.
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constitutional rights, none of the professionals has the last word. Professional judgment, as the Supreme Court has explained, creates only a 'presumption' of correctness; welcome or not, the final responsibility belongs to the courts." (citing Youngberg v. Romeo, 457 U.S. 307, 323 (1982)). As a starting point, this review must embrace the many competing concerns, including those relevant to prison administration, that are inherent in our constitutional inquiry, for there is "[n]othing in the Constitution [that] mechanically gives controlling weight to one set of professional judgments." Id.
What is clear is that the DOC has, for several years, provided Kosilek with significant treatment for her GID. Equally clear is that this treatment has resulted in marked improvement in Kosilek's mental state and contentment. She is not currently suicidal, and all reported instances of self-harm occurred two decades ago, long prior to her current course of treatment. The DOC also stands prepared to offer additional psychiatric services should Kosilek begin exhibiting signs of suicidality. I can see no violation on these facts. Not performing surgery is not the most compassionate solution to Kosilek's GID. Neither, however, does it fall outside the scope of clear professional standards, DeCologer,o 821 F.2d at 43, or illustrate severe obstinacy and disregard of Kosilek's medical needs, DesRosiers , 949 F.2d at 19 ("[T]he
-116-

complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain." (citations omitted)).
Kosilek is receiving, and would continue to receive, a regimen of treatment that mitigates the severity of her GID. This treatment is far from the proverbial "aspirin" doled out to a cancer patient in lieu of chemotherapy. See ante at 71. Rather, the DOC has for years ensured an individualized treatment plan for her physical and mental needs as well as consistent access to a team of specialists. I do not see in this treatment, nor does the district court or majority make clear, any "reasonable basis," see ante at 66, for a finding of wanton disregard. Girou,x 178 F.3d at 32 (requiring a level of "excessive risk" like that of criminal recklessness); DesRosiers, 949 F.2d at 19. Rather, giving due consideration to countervailing security concerns and based on a review of the record that shows the DOC's proposed care was not outside the realm of professionalism, I cannot say that the DOC has failed to adequately care for Kosilek's GID or callously ignored her pain. Feeney v. Corr. Med. Servs., Inc. , 464 F.3d 158, 162 (1st Cir. 2006) ("The care provided must have been 'so inadequate as to shock the conscience.'" (quoting Torraco, 923 F.2d at 235)).
Facing litigation that was equally protracted and passionate, the district court's task was by no means a simple one. The complexities of this case were many, and the testimony considerable. I am convinced, however, that the district court
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ultimately erred in several key respects, skewing its factual

conclusions towards a result, now upheld by the majority, that is

beyond the boundaries of our accepted legal precedent.

The Eighth Amendment proscribes punishment, including

punishment in the form of medical care so unconscionable as to fall

below society's minimum standards of decency. See

Wilson v.

Seiter, 501 U.S. 294, 300 (1991); Estelle , 429 U.S. at 102. Its

boundary simply does not reach, however, to instances of care that,

although not ideal, illustrate neither an intent to harm nor the

obstinate and unwarranted application of clearly imprudent care.

Respectfully, I would reverse.

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 891 F.Supp.2d 226 (2012)
Michelle L. KOSILEK, Plaintiff,
v.
Luis S. SPENCER, in his official capacity as Commissioner of the Massachusetts Department of Correction, Defendant.
C.A. No. 00­12455­MLW. United States District Court, D. Massachusetts.
September 16, 2012.
Frances S. Cohen, Jared A. Craft, Bingham McCutchen LLP, Joseph L. Sulman, Law Office of Joseph L. Sulman, Esq., Boston, MA, for Plaintiff. Joan T. Kennedy, Department of Correction, Richard C. McFarland, Commonwealth of Massachusetts, Department of Correction, Boston, MA, for Defendant.
MEMORANDUM AND ORDER
WOLF, District Judge. On September 4, 2012, the court issued a Memorandum and Order that, among other things, directed that judgment enter for plaintiff Michelle Kosilek (the "Order"). See 889 F.Supp.2d 190, 250­51, 2012 WL 3799660 at *54 (D.Mass. Sept. 4, 2012). The Order also stated that "[ t] he possible award of reasonable costs and attorneys fees, pursuant to 42 U.S.C. § 1988, is reserved for future consideration." Id. Judgment for plaintiff was entered on September 6, 2012.
The court understands the present procedural posture of the case is as follows. Unless otherwise ordered, if defendant Luis Spencer wishes to appeal, a Notice of Appeal must be filed within 30 days of the entry of judgment. See Fed. R.App. P. 4(a)(1)(A). The time begins running the day after the entry of judgment and if the 227*227 last day is a Saturday, Sunday or legal holiday, the period to file runs until the next business day.See Fed.R.Civ.P. 6(a)(1). Therefore, the present deadline for the filing of a Notice of Appeal is October 9, 2012, because October 6, 2012 is a Saturday, October 7, 2012 is a Sunday and October 8, 2012 is Columbus Day.[1] The

court may, however, extend the time for filing a Notice of Appeal if good cause or excusable neglect is shown. SeeFed. R.App. P. 4(a)(5); Virella­Nieves v. Briggs & Stratton Corp., 53 F.3d 451, 453 (1st Cir.1995).
Kosilek has prevailed on his claim that the defendant has violated his Eighth Amendment rights and is continuing to do so. Therefore, he is eligible to be awarded his reasonable attorneys' fees and costs. See 42 U.S.C. § 1988(b). The Supreme Court has stated that "a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotation marks omitted). The First Circuit has "consistently held that despite the permissive phrasing of the Fees Act [§ 1988(b) ], fee awards in favor of prevailing civil rights plaintiffs are virtually obligatory." De Jesús Nazario v. Morris Rodríguez, 554 F.3d 196, 200 (1st Cir.2009) (internal quotation marks, citations, and alterations omitted). Unless the court orders a different deadline, a motion for attorneys' fees must be filed within 14 days of the entry of judgment, which in this case would be September 20, 2012.See Fed.R.Civ.P. 6(a)(1) and 54(d)(2)(B). If Kosilek files a motion for attorneys' fees before defendant files a Notice of Appeal, the court may extend the time for the filing of a Notice of Appeal but is not required to do so. See Fed.R.Civ.P. 58(e); Fed. R.App. P. 4(a)(4)(A)(iii).
In this case, unless the "stringent criteria" for establishing "special circumstances" are shown to exist, De Jesús Nazario, 554 F.3d at 201, the amount of attorneys' fees which Kosilek will be awarded is likely to be large. For example, after a six­day trial in which Department of Corrections Commissioner Kathleen Dennehy was found to have unlawfully refused to provide certain Muslim prisoners daily Halal meals, the Department was ordered by another judge of this Court to pay $237,299 as attorneys' fees and an additional $13,630 as costs. See Hudson v. Dennehy, 538 F.Supp.2d 400, 413 n. 26 (D.Mass.2008); Memorandum and Order on Plaintiffs' Motion for Attorneys' Fees and Costs at 15, Hudson v. Dennehy, 568 F.Supp.2d 125 (D.Mass.2008) (Docket No. 125). In addition, deciding the issues relating to a possible fee award may require substantial further litigation. See Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988)(Fee litigation "can turn a simple civil case into two or even more cases — the case on the merits, the case for fees, the case for fees on appeal, the case for fees for proving fees, and so on ad infinitum, or at least ad nauseam."). Therefore, it is in the interest of justice that the parties have an opportunity to confer to determine whether they can agree on a resolution of the issues concerning the possible award of attorneys' fees and any related questions.

Accordingly, it is hereby ORDERED that: 1. The time by which plaintiff shall file any motion for attorneys' fees is EXTENDED to October 4, 2012, without prejudice to the possibility of a further 228*228 extension if one is requested. See Fed. R.Civ.P. 54(d)(2)(B). 2. Counsel shall meet at least once to discuss whether the parties can agree on a resolution of the question of an award of attorneys' fees to plaintiff and any related issues. 3. By October 2, 2012:
a. Defendant shall either file a motion to extend the time for the filing of a Notice of Appeal or state that he is not seeking an extension of time to do so. See Fed. R.App. P. 4(a)(5).
b. If such an extension is requested, plaintiff shall state whether he opposes the request and, if so, the reasons for his opposition.
c. Plaintiff shall state whether he requests a further extension of time to file a motion for an award of attorneys' fees.
d. If such an extension is requested, defendant shall state whether he opposes the request and, if so, the reasons for his opposition.
[1] While the court understands its calculations are accurate, the parties should either confirm or correct them to assure that no deadline is inadvertently missed.

 
 United States Court of Appeals
For the First Circuit

No. 12-2194

MICHELLE KOSILEK,

Plaintiff, Appellee,

v.

LUIS S. SPENCER, Commissioner of the Massachusetts Department of Correction,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]

Before
Lynch, Chief Judge, Torruella, Howard, Thompson and Kayatta, Circuit Judges.

Richard C. McFarland , Legal Division, Department of

Correction, with whom Nancy

Ankers White , Special Assistant

Attorney General, was on brief for appellant.

Joseph L. Sulman, with whom David Brody, Law Office of Joseph

L. Sulman , Frances S. Cohen , Jeff Goldman , Christina Chan , and

Bingham McCutchen LLP, were on brief for appellee.

Andrew D. Beckwith , on brief for the Massachusetts Family

Institute, amicus curiae in support of appellant.

Daniel V. McCaughey, Cori A. Lable, Kristin G. Ali and Ropes

& Gray LLP , on brief for World Professional Association for

Transgender Health, Mental Health America, Callen-Lorde Community

Health Center, Whitman-Walker Health, GLMA: Health Professionals

Advancing LGBT Equality, and Mazzoni Center, amici curiae in

support of appellee.

Matthew R. Segal , Joshua Block , LGBT Project, and David C.

Fathi, National Prison Project, on brief for American Civil

Liberties Union, American Civil Liberties Union of Massachusetts, Legal Aid Society, Harvard Prison Legal Assistance Project, Prisoners' Legal Services of New York, and Prisoners' Legal Services of Massachusetts, amici curiae in support of appellee.
Jennifer Levi and Bennett H. Klein, on brief for Gay & Lesbian Advocates & Defenders, EqualityMaine, Human Rights Campaign, MassEquality, Massachusetts Transgender Political Coalition, National Center for Transgender Equality, National Gay & Lesbian Task Force, and Transgender New Hampshire, amici curiae in support of appellee.
Opinion En Banc
December 16, 2014
-2-

TORRUELLA, Circuit Judge. This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution. We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction ("DOC") has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek ("Kosilek"). More precisely, we are faced with the question whether the DOC's choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment -- a treatment which would give rise to new concerns related to safety and prison security.
After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment. We therefore reverse the district court's grant of injunctive relief, and we remand with instructions to dismiss the case.
I. Background This litigation has now spanned more than twenty years and produced several opinions of significant length. See Kosilek v. Spencer , 889 F. Supp. 2d 190 (D. Mass. 2012) ("Kosilek II ");
-3-

Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002) ("Kosilek I"). In light of the expansive record, we recite here only the facts necessary to clarify the issues on appeal. A. Michelle Kosilek
Michelle Kosilek -- born in 1949 as Robert Kosilek -- is an anatomically male prisoner in her mid-sixties who suffers from gender identity disorder ("GID")1 and self-identifies as a female. In 1992 Kosilek was convicted of first-degree murder and sentenced to a term of life imprisonment without parole for the 1990 strangulation of her then-wife, Cheryl McCaul, whose body was found abandoned in the backseat of a vehicle at a local shopping mall. See Commonwealth v. Kosilek, 423 Mass. 449, 668 N.E.2d 808 (1996). While awaiting trial for McCaul's murder, Kosilek twice attempted to commit suicide. She also once tied a string around her testicles in an attempt at self-castration, but removed the string when it became painful. Since 1994, Kosilek has been housed at MCI-Norfolk, a medium security male prison in Massachusetts. Throughout the twenty-year duration of her incarceration at MCINorfolk, Kosilek has not attempted to harm herself.

1 The term "gender ide ntity disorder" has recently been replaced

with the term "gender dysphoria" in the medical community. SeeAm.

Psychiatric Ass'n,

Gender Dysphoria ,

http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf

(last visited June 3, 2014). To maintain consistency with prior

related litigation and evidence in the record, we continue to use

the term "GID" in this opinion.

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B. Kosilek I Kosilek first sued the DOC in 1992, alleging that its
failure to provide direct treatment for her GID was a violation of the Eighth Amendment. At that time, Kosilek was receiving only "supportive therapy" to cope with the distress caused by her GID. Kosilek initially sought both damages and injunctive relief requiring the DOC to provide her with sex reassignment surgery ("SRS"), although only her claim for injunctive relief survived to trial.
The district court issued a decision in 2002, in which it concluded that Kosilek had proven the existence of a serious medical need and had shown that her then-current treatment plan was inadequate. The court concluded, however, that the DOC was unaware that a failure to provide additional treatment to Kosilek might result in serious harm. Moreover, it held that the DOC's failure to provide treatment was rooted, at least in part, in "sincere security concerns." As a result, the court ruled that the DOC was not in violation of the Eighth Amendment.
Despite finding for the DOC, the district court's opinion made clear that Kosilek required additional treatment for her GID, and that the DOC would need to develop and implement an improved treatment plan. The court warned that a failure to provide treatment in the future, now that the DOC was on notice of the
-5-

potential for harm if only "supportive therapy" was provided, could amount to an Eighth Amendment violation. C. The DOC offers treatment
The DOC responded to Kosilek I by revamping its policy for GID treatment. In the past, the DOC had adopted a policy of "freezing" a prisoner's treatment at whatever level that prisoner had attained prior to incarceration. Hormonal treatment, for example, would be available only to prisoners who had been prescribed hormones prior to incarceration. In place of this "freeze-frame" policy, after Kosilek I the DOC adopted a plan that allowed prisoners to receive additional treatment beyond the level of that received before entering prison, when such care was medically required. Under this new plan, medical recommendations would be made by the University of Massachusetts Correctional Health Program ("UMass"), a health-services provider contracted by the DOC. The DOC Commissioner and the DOC Director of Health Services were responsible for assessing whether any change in treatment would create increased security concerns.
Kosilek was evaluated by Dr. David Seil, a genderidentity specialist, who prescribed a course of treatment to alleviate the mental distress -- often referred to as "dysphoria" -- associated with her GID. In line with Dr. Seil's recommendations, in 2003 the DOC began providing Kosilek with significant ameliorative treatment aimed at directly addressing the
-6-

mental distress caused by GID. In addition to continued mental
health treatment, she was provided female, gender-appropriate
clothing and personal effects, and electrolysis was performed to
permanently remove her facial hair.2 Kosilek also began a course
of hormonal treatments recommended by an endocrinologist. These
treatments resulted in "breast development and shrinkage of her
testicles." All of the treatments described continue to be offered
to Kosilek to the present day.
D. Consideration of SRS
In line with the Harry Benjamin Standards of Care ("the
"Standards of Care" or "the Standards"),3 Dr. Seil recommended that
Kosilek be considered for SRS after one year of hormonal
2 Facial hair removal was delayed because of difficulty finding a provider that was willing to perform these services on Kosilek. The minutes of the DOC's Executive Staff Meetings show that they proactively sought out service providers throughout this period of delay, and electrolysis was completed in November 2004.
3 The Standards of Care are a set of treatment recommendations issued by the Harry B enjamin International Gender Dysphoria Association that provide guidance on the treatment of individuals with GID. Relevant to Kosilek II is the sixth version of the Standards of Care. See Harry Benjamin Int'l Gender Dysphoria Ass'n, Standards of Care for Gender Identity Disorders, Sixth Version (2001) ("Standards of Care"). A seventh version of the Standards of Care was published in 2011, and adopts the Harry Benjamin Association's new name. See World Professional Ass'n for Transgender Health ("WPATH"), Standards of Care for the Health of Transsexual, Transgender, and Gender–Nonconforming People, Version 7 (2011). The Standards of Care "are intended to provide flexible directions for the treatment" of GID, and state that "[i]ndividual professionals and organized programs may modify" the Standards' requirements in response to "a patient's unique . . . situation" or "an experienced professional's evolving [treatment methodology]." Standards of Care at 1-2 (emphasis added).
-7-

treatment.4 Accordingly, in 2004 the DOC began the process of finding an appropriate professional to evaluate Kosilek's eligibility for, and the necessity of, SRS. At the DOC's Executive Staff Meetings there was some debate regarding who should be hired to conduct this eval uation. The UMass Mental Health Program Director, Dr. Kenneth Appelbaum, suggested that the DOC consult with the Fenway Community Health Center (the "Fenway Center"). The Fenway Center is a Boston-based facility focused on serving the lesbian, gay, bisexual, and transgender community. In contrast, the DOC's Director of Mental Health and Substance Abuse Services, Gregory Hughes ("Hughes"), suggested consulting with Cynthia Osborne ("Osborne"), a gender identity specialist employed at the Johns Hopkins School of Medicine who had experience working with other departments of correction regarding GID treatment.
Hughes expressed concern with using the Fenway Center because of "the perception that their approach was to come out with recommendations that globally endorsed a full panoply of treatments." It was thought that Osborne, in contrast, "may do more objective evaluations." Dr. Appelbaum noted, however, that the Fenway Center's approach was, to his knowledge, probably "more
4 This treatment plan aligns with the Standards of Care's triadic sequence for GID treatment. This sequence begins with diagnosis and the provision of therapy, progresses to endocrine treatments, and culminates with consideration of SRS after at least one full year living a "real life experience" in the preferred gender role. Many individuals with GID choose not to complete the full sequence.
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the norm than the exception." The DOC also recognized that having

a Boston-based treatment provider might more easily facilitate the

process of Kosilek's evaluation.

The Fenway Center was retained by the DOC, and Kosilek

was evaluated by Kevin Kapila, M.D., and Randi Kaufman, Psy.D., in

a ninety-minute interview. Drs. Kapila and Kaufman also reviewed

Kosilek's medical records. On February 24, 2005, they issued a

report recommending that Kosilek receive SRS (the "Fenway Report").

The Fenway Report acknowledged Kosilek's positive response to the

treatment provided by the DOC.

Her joy around being feminized through hormone

therapy, facial and body hair removal, and her

ability to have access, and to dress in,

feminine attire and make-up is palpable.

These responses further suggest that being

able to express herself as female has been

helpful in alleviating her gender

dysphoria. . . .

[I]t is clear that her

increasingly feminine presentation has been

beneficial to her psychologically.

Nonetheless, it also emphasized that Kosilek remained significantly

distressed by "having male genitalia, as well as not having female

genitalia." In light of this continuing distress, the Fenway

Center doctors stated that "it is quite likely that Michelle will

attempt suicide again if she is not able to change her anatomy."

The report also concluded that Kosilek had fully progressed through

the Standards of Care's triadic sequence, and that she "appear[ed]

to be ready" for SRS. SRS, the doctors believed, would most likely

"allow Michelle to have full relief from the symptoms of gender

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dysphoria" and would quite possibly "increase her chance for survival" by greatly decreasing the potential for future suicidal ideation.
The Fenway Report was received by the DOC and reviewed by Dr. Appelbaum and his UMass colleague, Dr. Arthur Brewer. The UMass doctors informed the DOC that they found no clear contraindications to SRS, but noted that they were "unaware of any other case in which an inmate has undergone sex reassignment surgery while incarcerated."
After considering the information from UMass, the DOC decided to have Osborne conduct a peer review of the Fenway Report. In a letter to Osborne, the DOC stated that it was requesting her services because "[t]he treatment of Gender Identity Disorder within a correctional environment is a complicated issue and one that the Department takes very s eriously. We are aware of the substantial expertise you possess in this area and hope that you can provide us with assistance in determining appropriate
-10-

treatment."5 On April 12, 2005, the DOC sent Osborne copies of all
previous medical evaluations of Kosilek.
On April 28, 2005, the DOC Director of Health Services,
Susan Martin ("Martin"), wrote UMass, stating her concern that
UMass had not "address[ed] the lack of detail, clarity and specific
recommendations in the evaluation done by the Fenway Clinic," and
had failed to provide an independent recommendation as to the
appropriateness of surgery. She also asked for specific logistical
information, including a list of doctors who might provide the
surgery, what procedures would be performed, and what recovery time
could be expected.
On May 10, 2005, Drs. Appelbaum and Brewer replied,
indicating that they deferred to the Fenway Center's recommendation
of surgery, as they were not experts in the area of SRS -- a
medical procedure specifically excluded from their contract to
provide services to the DOC. They provided a preliminary list of
surgeons to consider, none of whom were licensed to practice
medicine in Massachusetts.
5 Osborne previously worked with the Virginia and Wisconsin Departments of Correction regarding their treatment of prisoners with GID. It is unclear from the record whether the Fenway Center had previously developed treatment plans for GID within a penological setting. When the DOC asked what consid eration the Fenway Center gave to issues such as "criminal history [and] violence against women," the center responded that "independent of other psychological disorders [Fenway experts] don't consider criminal history, homicide, [or] brutality." On January 5, 2005 -before the Fenway Center released its report -- the DOC's Director of Health Services "expressed concern" about these omissions.
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On May 20, 2005, Osborne finished her peer review of the Fenway Report. She began by making clear that her review was limited to reading and evaluating the reports of others. As a result, she could not independently diagnose Kosilek, but she agreed with the conclusion that Kosilek suffered from GID. Still, she disagreed with what she believed to be a lack of comprehensiveness in the report and an inclination to minimize the possibility of comorbid conditions. Namely, Osborne highlighted that Kosilek had previously been diagnosed with Antisocial Personality Disorder, a diagnosis neither confirmed nor denied by the Fenway Report, and that the report included no indication that Kosilek had been assessed for other pathologies likely to lead to self-harming behavior. Osborne expressed belief that threats of self-harm or suicide should serve as a contraindication to surgery, and that such threats were not a valid or clinically acceptable justification for surgery. In consequence, she disagreed with the Fenway Center's statements that surgery was medically necessary as a means to diminish the likelihood that Kosilek would attempt suicide in the future.
Osborne's report also highlighted that the Standards of Care admit of flexible application, and noted that the Standards state that "the diagnosis of GID invites the consideration of a variety of therapeutic options, only one of which is the complete therapeutic triad." She emphasized that "[t]here is currently no
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universal professional consensus regarding what constitutes medical necessity in GID."
In reference to the Standards of Care's application in a penological setting, Osborne noted that the Standards of Care include a criterion that candidates for SRS exhibit "satisfactory control of problems such as sociopathy, substance abuse, psychosis and suicidality." She believed that this requirement was inherently in conflict with the Standard's application to incarcerated persons, as she felt incarceration indicated a lack of mastery over such antisocial leanings. Moreover, Osborne noted that non-incarcerated individuals often face external constraints in their choice of treatments or determine, as a result of their "real life experience," that other, non-invasive treatments are personally preferable to SRS. In consequence, she felt that it was unrealistic for inmates to expect "that prison life [would] provide no constraints or obstacles to cross gender preferences" and that it was "outside[] the bounds of good clinical practice" for care providers to try to meet this expectation. Given the isolation attendant to incarceration, Osborne also emphasized that prisoners might often lack awareness of the frequency with which individuals choose alternative treatments over SRS.
After considering Osborne's peer review, Martin again reached out to the doctors at UMass. On May 25, 2005, she expressed continuing concern with the Fenway Report, highlighting
-13-

that Osborne's peer review had raised at least three questions regarding the report's thoroughness: (1) why the report omitted consideration of potential comorbidities; (2) why the report did not rely on formal psychological testing, but only an in-person interview; and (3) why Kosilek's claims that she would likely seek to end her life if not provided with SRS were seen to justify, rather than serve as a contraindication to, surgery. Martin also expressed dissatisfaction that "the February 24, 2005 evaluation by the Fenway Clinic does not indicate whether sex reassignment surgery is a medical necessity for Michele [sic] Kosilek" and "fails to adequately address the issue of whether the current treatment provided to Kosilek provides sufficient relief of the symptoms of gender dysphoria."
A response from Drs. Appelbaum and Brewer came on June 14, 2005. The doctors made clear that they were not experts in the treatment of GID, and that they deferred to the Fenway Center's treatment recommendation. Referring to the differences between the preferred treatment plans of the Fenway Center and Osborne, the doctors reminded Martin that Osborne's report had emphasized the "dearth of empirical research upon which to base treatment decisions" for GID and had highlighted the lack of "professional consensus" regarding the "medical necessity" of SRS.
The Fenway Center issued a follow-up report aimed at answering Osborne's critique of its initial recommendation. In
-14-

this report, Drs. Kapila and Kaufmann noted that suicidal ideation was common among individuals suffering from GID, and that it often decreased with the provision of care. Therefore, the likelihood that Kosilek would become suicidal if denied surgery was, to the doctors, not a contraindication to her eligibility, but instead was a symptom that could be alleviated by provision of SRS. The doctors also disagreed with Osborne's belief that incarceration was a significant contraindication to surgery, noting that the Standards of Care specifically state that "[p]ersons who are receiving treatment for [GID] should continue to receive appropriate treatment . . . after incarceration. For example, those who are receiving psychotherapy and/or cross-sex hormonal treatments should be allowed to continue this medically necessary treatment . . . ."
The Fenway Center doctors further discussed their belief that a key step of the triadic sequence, the "real-life experience," could occur in prison. This treatment prerequisite requires that an individual live full-time in their preferred cross-gender role for at least one year prior to being deemed eligible for SRS. The purpose of this requirement is ensure that GID patients have an opportunity to experience a full measure of life in a cross-gender role, including the social scrutiny that may arise among professional counterparts and peers. Prison, the Fenway Center's doctors surmised, might be considered a "more
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stringent" real-life experience, because a prisoner's gender presentation would be subject to full-time monitoring by prison personnel and other inmates. The report concluded by reiterating the Fenway Center's recommendation that Kosilek receive SRS. The doctors recognized that performing "such a procedure would . . . bring up issues of housing and safety," but emphasized that "hormone therapy and [SRS] are the only clinical treatments found to be effective for GID." E. The DOC's Security Report
On April 25, 2005, the district court issued an order requiring that the DOC conduct a review of any potential safety and security concerns arising from the provision of SRS. In the next month, the DOC worked to formalize its security concerns into a report, which it eventually submitted to the court on June 10, 2005. As made clear by the minutes of the DOC's staff meetings, however, these security issues were a topic of discussion prior to the court's order. Previously, on January 5, 2005, the meeting attendees had discussed how and if Kosilek's prior violent acts against her wife should impact their evaluation and treatment plan. On April 20, 2005, the parties discussed potential security concerns that would arise should Kosilek be housed, post-surgery, in MCI-Framingham, Massachusetts' only female prison. During that meeting, DOC personnel noted that they were prepared to provide an
-16-

evaluation of general climate and security concerns implicated by the provision of surgery.
On May 19, 2005, DOC Commissioner Kathleen Dennehy ("Dennehy") convened a meeting with the Superintendent of MCINorfolk, Luis Spencer ("Spencer"), and the Superintendent of MCIFramingham, Lynne Bissonnette ("Bissonnette"), as well as the DOC's legal counsel. The purpose of this meeting was to formally discuss the security concerns previously expressed by both superintendents in phone conversations with Dennehy. It was also an opportunity to begin preparation of the report requested by the district court.
The report focused mainly on issues of safety and security surrounding Kosilek's post-operative housing. Dennehy conveyed concern regarding housing Kosilek at MCI-Norfolk, noting that approximately twenty-five percent of male offenders in the Massachusetts prison system are classified as sex offenders and concluding that "Kosilek would clearly be a target for assault and victimization in a male prison." The report also expressed concerns with housing Kosilek at MCI-Framingham, including the absence of single-bed cells, such that all inmates had to share cells, and the possibility that Kosilek's presence might exacerbate mental distress among the significant portion of MCI-Framingham's population that had previously experienced domestic abuse and trauma at the hands of male partners.
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Given the stated infeasibility of housing Kosilek in the general population of either MCI-Framingham or MCI-Norfolk, the report considered segregated housing in a protected ward. It expressed concern, however, about the possible deleterious impact on Kosilek's mental health caused by any housing solution that required long-term isolation. The report also noted that it was not within the DOC's ability to create a special ward for prisoners with GID, given that these prisoners present a significant range of criminal histories, security ratings, and treatment needs that are antithetical to co-housing.
On June 10, 2005, citing both its internal review of safety and security and Osborne's reported concerns regarding the appropriateness of SRS, the DOC informed the district court that it had chosen to continue Kosilek's current ameliorative treatment, but not to provide her with SRS. F. Kosilek II
Trial commenced on May 30, 2006, with what would be the first of three rounds of testimony. For the sake of clarity and concision, we summarize this testimony topically, rather than temporally. We begin with evidence regarding the standard of care for treatment of GID.
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1. Testimony related to medical necessity
a. Initial testimony
First to testify in 2006 was an expert witness for
Kosilek, Dr. George Brown, who had previously evaluated Kosilek in
2001 and was an author of the Standards of Care. Prior to
testifying, Dr. Brown issued a written report assessing Kosilek’s
readiness for surgery and evaluating her current mental and
physical presentation, as compared with 2001. Dr. Brown noted that
Kosilek consistently presented as female and that "[a]ccess to
makeup and female undergarments, laser hair removal, along with
hormonal treatments . . . have all seemed to significantly
reinforce and consolidate the outward expression of [Kosilek's]
gender identity as female." Other positive effects of treatment
were also described:
Hormonal treatments have resulted in obvious breast growth since my last assessment, decrease in upper body strength, increase in hip size, changes in amount and texture of body hair, skin texture changes, testicular volume decrease, and a large reduction in spontaneous erections . . . . Psychologically, the effects of these combined treatments have [included] . . . resolution of depression, resolution of suicidality and suicide gestures and attempts, improved mood with reduction in irritability, anxiety, and depression . . . .
Based on his observations, Dr. Brown concluded that Kosilek was
eligible for SRS, having met all of the readiness criteria.
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Before the court, Dr. Brown's testimony emphasized that the provision of female clothing and effects, hair removal, and hormones had resulted in a lessening of "the severity of [Kosilek's] dysphoria." According to Dr. Brown "[s]he was clearly less depressed, less anxious, less irritable . . . . She was not suicidal . . . ." Despite these significant improvements, Dr. Brown testified that he believed SRS to be an appropriate and "medical[ly] necessary component" of Kosilek's treatment. He related instances in which incarcerated persons who could not complete the triadic sequence 6 exhibited an increase in negative symptoms, including a resurgence of self-harming behavior.
Dr. Brown further testified that, if not granted surgery, he believed Kosilek’s feelings of "hopelessness will intensify," and that she would likely attempt suicide. In reaching this conclusion, Dr. Brown emphasized that "other parts of the treatment plan [e.g. , hormones, hair removal, and the provision of female clothing] . . . all contribute in their own way to a level of improvement." Nonetheless, he felt that, if Kosilek lost hope of receiving SRS, her current treatment plan would not stop a deterioration of her mental state and the possible reemergence of suicidal ideation.
6 The steps of this sequence, if fully completed, progress from GID diagnosis and therapeutic treatment, through endocrine treatment, and culminate -- after at least a one-year-long reallife experience -- with the consideration of SRS.
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Dr. Kaufman from the Fenway Center also testified, reiterating that the Fenway Center believed SRS to be an appropriate and medically necessary step in Kosilek's treatment. She further stated her belief that, if not given surgery, Kosilek would present a significant risk of suicide: "if she's not able to have surgery, I think that she'll be hopeless and feel helpless and at that point really will have nothing else to live for."
Next to testify was Mark Burrows ("Burrows"), who had been Kosilek’s treating psychiatrist for approximately five years. Burrows testified to Kosilek's strong desire for SRS, and to her feelings of hope associated with completing the formalization of her gender presentation. Burrows also stated that denying surgery would likely have a negative impact on Kosilek's mental health. He believed that it was "slightly" "more probable than not" that a denial of the surgery would result in Kosilek attempting to commit suicide. Burrows also spoke about his belief that, if given SRS, Kosilek should not continue to reside at MCI-Norfolk, as "the risks involved in her possibly being assaulted are obvious."
Dr. Appelbaum of UMass was also called as a witness for Kosilek. He testified as to UMass's trust in the Fenway Center's recommendations, and to his belief that the DOC need not have sought out a peer review of the Fenway Report, given the Fenway Center's expertise in the treatment of GID.
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Kosilek testified next. She expressed the depth of her desire for SRS, and she stated that she would continue to experience mental anguish regarding her gender identity so long as she had male genitalia. If not provided with SRS, Kosilek said that she "would not want to continue existing [as an anatomical male]" and might instead attempt to commit suicide. She disagreed with the suggestion that treatment short of SRS could adequately relieve her mental distress, stating that "[t]he problem is my genitals. That's what needs to be fixed." Kosilek also testified as to feeling discomfort in the all-male environment of MCI-Norfolk and having a strong desire to be transferred to MCI-Framingham. She felt that the inmates at MCI-Framingham would be more accepting and welcoming of her than those at MCI-Norfolk.
The DOC offered testimony from Dr. Chester Schmidt, a licensed psychiatrist and Associate Director of the Johns Hopkins School of Medicine. Dr. Schmidt expressed his belief that Kosilek had undergone an "excellent adaptation" through treatment with hormones, hair removal, psychotherapy, and the provision of female garb. These treatments had alleviated the severity of her mental distress and allowed Kosilek to significantly consolidate her gender identity. Dr. Schmidt acknowledged that, if not provided SRS, Kosilek's level of mental distress would likely increase, with depression or attempts at self-harm possible. On the whole, however, he believed that her positive adaptation and the
-22-

consolidation of her gender identity indicated that the current course of treatment provided by the DOC was medically adequate. Dr. Schmidt explained that the severity of dysphoria associated with GID may "wax and wane," with patients feeling depressed or hopeless at times, but generally being able to alleviate these depressive symptoms with appropriate psychotherapy and medical interventions. He felt that these measures, in combination with Kosilek's current course of treatment, would allow her to live safely and maintain a level of contentment.
On cross-examination, Dr. Schmidt was questioned regarding his alleged rejection of the Standards of Care. Dr. Schmidt responded that he found the Standards of Care "very useful for patients" and that he commonly requested that patients familiarize themselves with these Standards when they began to seek care for SRS. Asked if he had stricter requirements for SRS eligibility than those in the Standards of Care, Dr. Schmidt emphasized that he neither "advocate[s] for nor . . . speak[s] against the decisions for the cross-gender hormones or eventually for surgery." Rather, he believes such decisions are best made by the patient, based on their personal needs and desires. In line with this belief, Dr. Schmidt stated that he does not specifically recommend SRS, but at a patient's request he will release medical files and send a letter indicating that a patient is ready for surgery to their chosen SRS provider.
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Dr. Schmidt further testified that he viewed the Standards of Care as "guidelines." He explained, however, that "[t]here are many people in the country who disagree with those standards who are involved in the [GID] field." Because of this disagreement, Dr. Schmidt expressed hesitation to refer to the Standards of Care, or the recommendation for SRS, as medically necessary. He emphasized the existence of alternative methods and treatment plans accepted within the medical community. He also questioned whether the Standards of Care's requirement of a reallife experience could occur in prison, opining that the real-life experience required a range of social and vocational experiences unavailable within a penological setting.
Osborne testified next, reiterating her agreement with Kosilek's GID diagnosis, but disagreeing that SRS was a medically necessary treatment. In reference to the Standards of Care, Osborne testified that she fully agreed that SRS was an effective and appropriate treatment for GID. She emphasized, however, that she did not view SRS as medically necessary in light of "the whole continuum from noninvasive to invasive" treatment options available to individuals with GID. Regarding Kosilek personally, Osborne indicated that she believed Kosilek's current treatment plan had been highly effective in allowing Kosilek to feel "hopeful, euphoric, and not depressed" about her gender identity. Osborne, like Dr. Schmidt before her, again expressed skepticism as to
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whether a real-life experience could occur in jail, given that a single-sex environment necessarily limited the sorts of social and human interactions available. Osborne agreed that not providing Kosilek with SRS might give rise to possible suicidal ideation, but noted that the DOC had significant expertise in treating prisoners exhibiting self-harming behavior. She felt that Kosilek's current treatment plan, in conjunction with protective measures aimed at ensuring her personal safety, was an appropriate and medically acceptable response to Kosilek's GID.
b. The UMass report Following the close of initial testimony, the district court ordered UMass to review the testimony of all medical experts and to issue a report regarding whether the treatment proposed by Dr. Schmidt was an adequate method of treating Kosilek's GID. In this report -- submitted to the court on September 18, 2006 -- Drs. Appelbaum and Brewer made clear that they "worked with and relied upon Dr. Kapila and Dr. Kaufman" who "assist[ed] to prepare this response." The report stated that the UMass doctors "have been informed by Dr. Kaufman and Dr. Kapila that . . . trial testimony . . . confirms their opinion that Michelle Kosilek has a 'serious medical need' because there is a 'substantial risk of serious harm if it is not adequately treated.'" In conclusion, the report reiterated that the Fenway Center believed Dr. Schmidt's proposed
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treatment plan would not provide adequate care, and UMass endorsed that conclusion.
c. The court-appointed expert
At the conclusion of the first round of testimony, the district court decided to appoint an independent expert to assist in determining what constituted the medical standard of treatment for GID. On October 31, 2006, with the parties' input, the district court selected Dr. Stephen Levine, a practitioner at the Center for Marital and Sexual Health in Ohio and a clinical professor of psychiatry at Case Western Reserve University School of Medicine. Dr. Levine had helped to author the fifth version of the Standards of Care, and served as Chairman of the Harry Benjamin International Gender Dysphoria Association's Standards of Care Committee.
A month after his appointment, Dr. Levine issued a written report. The report began by explaining the dual roles that WPATH -- formerly the Harry Benjamin Association and the organization that wrote the Standards of Care -- plays in its provision of care to individuals with GID:
WPATH is supportive to those who want sex reassignment surgery (SRS). . . . Skepticism and strong alternate views are not well tolerated. Such views have been known to be greeted with antipathy from the large numbers of nonprofessional adults who attend each [of] the organization's biennial meetings. . . .
The [Standards of Care are] the product of an enormous effort to be balanced, but it
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is not a politically neutral document. WPATH aspires to be both a scientific organization and an advocacy group for the transgendered. These aspirations sometimes conflict. The limitations of the [Standards of Care], however, are not primarily political. They are caused by the lack of rigorous research in the field.
Dr. Levine further emphasized that "large gaps" exist in the
medical community's knowledge regarding the long-term effects of
SRS and other GID treatments in relation to its positive or
negative correlation to suicidal ideation.
Dr. Levine next discussed the possibility of Kosilek
having a real-life experience in prison. He explained that the
Fenway Center, in stating that a real-life experience could be had
in prison, "failed to offer a mild caveat that the real life test
was designed to test the patients' capacity to function as a female
in the community by mastering the demands of . . . family, social
relationships, educational accomplishment, [and] vocational
performance." Such experiences and relationships, Dr. Levine
noted, are not a part of Kosilek's daily life in prison. Dr.
Levine's final conclusion was that:
Dr. Schmidt's view, however unpopular and uncompassionate in the eyes of some experts in GID, is within prudent professional community standards. Treatment stopping short of SRS would be considered adequate by many psychiatrists, gender team members, and gender patients themselves, if Kosilek were a citizen in the community. . . . [T]here are a number of acceptable community standards which derive from differing assumptions about disorders,
-27-

their causes, and the possible effective interventions. He recognized that the different treatment plans advocated by Dr. Schmidt and the Fenway Center "each . . . [had] merit," as well as limitations. Dr. Levine further wrote that doctors generally "do not recommend treatment to GID patients. . . . The decision is [the patient's], when and if they still want it." Dr. Levine testified on December 16, 2006. He first reiterated his belief that Dr. Schmidt's view, although not preferred by some GID specialists, was within "prudent professional standards." He noted that Kosilek had received significant relief on her current treatment plan, and that many patients with GID live comfortably without completing the triadic sequence. He believed that Kosilek had already successfully consolidated her gender identity, such that the removal of her male genitalia might relieve dysphoria, but it was not necessary to complete that consolidation. He also indicated var iability and difficulty in forecasting depressive symptoms and self-harming behavior in GID patients. He explained that he believed Kosilek would certainly express deep disappointment if denied SRS -- described as the sole current focus of her life -- but that coping mechanisms might well change her outlook in months and years to come, allowing her to live happily without the provision of SRS. The district court then asked Dr. Levine to narrow the lens of his inquiry by presuming that there were absolutely no
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external contraindications to surgery and that Kosilek had indeed had a real-life experience in prison. Given these presumptions, the court asked Dr. Levine to testify as to whether it would still be prudent to not provide Kosilek with SRS. Dr. Levine acknowledged his belief that prudent professionals would generally not deny surgery to a fully eligible individual. Still, he hesitated to declare Dr. Schmidt's approach medically unacceptable. He answered that the provision of SRS would surely be a prudent course of treatment, but then stated that "I also believe it's prudent not to give her Sex Reassignment Surgery for lots of reasons." He again emphasized for the court that the treatment of GID was an evolving field, in which practitioners could reasonably differ in their preferred treatment methods. Dr. Levine explained that in many instances patients cannot or do not want to receive SRS, and prudent physicians commonly employ a range of treatments to ameliorate these patients' dysphoria.
d. Additional rounds of testimony Several witnesses were recalled for additional testimony. Drs. Kapila and Kaufman appeared again on behalf of Kosilek. Both reiterated their belief that Kosilek had a serious medical need and that, given Kosilek's high risk of suicide if denied the surgery, SRS was the only adequate treatment plan. Dr. Appelbaum also testified again, as did the UMass Medical Director. Both UMass
-29-

doctors reaffirmed their endorsement of the Fenway Center's treatment recommendations.
Kosilek also presented additional witness testimony from Dr. Marshall Forstein, Associate Professor of Psychiatry at Harvard Medical School, who had previously evaluated Kosilek during Kosilek I. Dr. Forstein issued a written report, in which he noted that "the question of the most prudent form of treatment is complicated by the diagnosis of GID being on the margins of typical medical practice." Despite this recognition, he testified that he believed SRS was necessary for Kosilek. He felt that, if she was not given SRS, there was a significant risk that Kosilek would attempt suicide or self-mutilation. Although Dr. Forstein believed that psychotherapy might "help with frustration, with harassment, and with depression," he was uncertain whether Kosilek could ever fully "reconcile with being incompletely transitioned."
2. Testimony regarding safety and security concerns a. Initial testimony
In line with the June 10, 2005, security report prepared by Commissioner Dennehy, multiple DOC officials testified regarding the safety and security concerns that were likely to arise if Kosilek was provided SRS.
First to testify was Spencer, who at that time served as Superintendent of MCI-Norfolk. Spencer began by explaining the general layout and security measures at MCI-Norfolk. He also
-30-

explained that the prison had, so far, successfully been able to accommodate Kosilek's receipt of care without incident. Spencer was unaware of any issues or incidents of harassment related to Kosilek's breast growth and increasingly feminine appearance. He stated, however, that he would have significant concerns housing an anatomically female prisoner in MCI-Norfolk, an all-male prison. Despite the lack of historical incidents specific to Kosilek, he emphasized that "inmates do get assaulted, inmates have been raped . . . [a]nd putting a female in a correctional environment like MCI-Norfolk would be of high concern to me." If Kosilek remained at MCI-Norfolk, Spencer testified that he believed she would only be safe if housed in the Special Management Unit, a highly restricted secure building separated from the general population.
Bissonnette, Superintendent of MCI-Framingham, also testified about the security concerns she believed would arise if Kosilek was transferred to the all-female prison after receiving SRS. She explained that MCI-Framingham does not have private cells, save for the segregation and medical units. All women in the general population are required to cohabitate, and that prison would be unable to provide a single-occupancy cell for Kosilek. She also explained that Kosilek's presence could create significant disruption in MCI-Framingham's population, given that Kosilek had been convicted for violently murdering her wife, and that a
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significant portion of women at MCI-Framingham were victims of domestic abuse.
Bissonnette acknowledged that there were procedures in place designed to help women cope with exposure to upsetting or traumatic experiences with other prisoners, but maintained that these security concerns would require that Kosilek, if transferred to MCI-Framingham, be housed in the segregated Close Custody unit. Bissonnette explained that she had significant hesitation about incarcerating anyone long-term in the Close Custody unit, given the potential negative effects of such long-term segregation.
Commissioner Dennehy also testified. She described the security concerns arising from cross-gender housing as "obvious" to any experienced corrections officer. In line with her belief that the safety and security concerns about post-operative housing were clear, Dennehy stated that she would not feel comfortable allowing SRS -- even if mandated by the court -- if she could not identify an adequate method of safely housing Kosilek after her operation. Dennehy reiterated Spencer's and Bissonnette's concerns, stating that she deeply trusted both Superintendents' professional judgments regarding the security of housing Kosilek at their respective facilities. Dennehy also explained why reliance on an interstate compact to transfer Kosilek would be problematic. She emphasized that other states take prisoners on a fully voluntary
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basis, and that no state may be willing or able to accommodate a transfer request for Kosilek.
Commissioner Dennehy was also questioned about negative press surrounding the DOC's possible provision of SRS to Kosilek. Specifically, she was asked about her professional relationship with a state senator who had vocally opposed surgery and sponsored legislation to deny its provision. She was also asked about any contact with the then-lieutenant governor, who was another strong opponent of providing SRS to prisoners. Dennehy stated that she was aware of negative press reports and political opposition surrounding Kosilek's request, but that her decision not to provide SRS was based only on security concerns and had not been influenced by this public pressure.
The district court recalled Dennehy on October 18, 2006, to ask additional questions regarding a growing amount of press coverage surrounding the case. Dennehy acknowledged that she was aware of significant news coverage of Kosilek's case, but denied personally following the story in the media. She explained that there were staff members within the DOC trained to deal with press inquiries and that she generally received only summaries of news coverage from her staff. Again, Dennehy strongly denied forming any opinion about correctional safety procedures based on media reports or public opinion.
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b. Commissioner Clarke Dennehy ended her tenure as DOC Commissioner on April 30, 2007, and in November 2007 the position was filled by Harold Clarke. After Clarke took over, the district court requested that he familiarize himself with a selected number of trial transcripts. Clarke was ordered to file a report, on the basis of those transcripts, indicating whether he believed that the DOC had legitimate reasons to refuse Kosilek's request for SRS. Clarke's report, filed approximately a month after the district court's order, stated that his conclusions were based on more than three d ecades of correctional experience and were not influenced by political or media pressure. He expressed concern regarding threats of suicide being used as a means for prisoners to receive wanted benefits or concessions from staff. Finding it to be bad practice for prison administrators to give in to demands accompanied by the threat of suicide, Clarke stated that he believed the Massachusetts prison system had taken significant measures to ensure it was prepared to deal with suicidal ideation among its prison population. In addition to considering the issue of suicide, Clarke's report reemphasized the significant postoperative security concerns expressed by his predecessor. He stated that housing Kosilek at MCI-Norfolk created clear security concerns related to mixed-gender prison populations, while housing Kosilek at MCI-Framingham would pose a significant risk of
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destabilizing that environment, given the number of women prisoners who were victims of domestic violence. Clarke also stated his belief that a separate unit to house GID prisoners was not feasible, given that prisoners with GID might have a wide range of security classifications and security needs, making cohabitation unsafe. In reference to the possibility of an interstate transfer, Clarke reiterated the concern that any interstate transfer would be completely voluntary and that a receiving state might later decide to return Kosilek, at which time the housing concerns would reemerge.
Testifying before the court, Clarke acknowledged that he had received several letters from outraged state politicians claiming that provision of the surgery would be an "affront to the taxpayers" and citing state budget concerns as a reason to deny Kosilek surgery. The letters argued that a strained state budget should not be used to accommodate what the legislators believed to be an "elective" procedure and that the DOC would be "unwise" to provide it. Clarke, however, explained that he had not answered these letters, as he believed providing an answer would be inappropriate given his role as DOC Commissioner. He also denied being in any way influenced by cost concerns in reaching his conclusion regarding safety and security concerns. Clarke similarly testified that he was aware of media coverage regarding Kosilek's
-35-

request, but he had not personally viewed the news or heard the

radio stories.

G. Kosilek II

The district court issued

an extensive opinion on

September 4, 2012. This opinion concluded that Kosilek had a

serious medical need and that -- based on the court's belief that

Dr. Schmidt was not a prudent professional -- the only adequate way

to treat this need was through SRS. Moreover, the court determined

that the DOC's stated security concerns were merely pretextual and

concluded that the DOC had in fact made its decision based on

public and political pressure. This, the court concluded, amounted

to deliberate indifference under the Eighth Amendment. Stating its

belief that the DOC would continue to deny Kosilek adequate

treatment in the future, the district court granted an injunction

requiring that the DOC provide Kosilek with SRS.

II. Discussion

A. The Eighth Amendment and Medical Care in Prison

"Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted." U.S.

Const. amend. VIII. From this brief amendment, courts have derived

the principles that govern the permissible conditions under which

prisoners are held and that establish the medical treatment those

prisoners must be afforded. See Farmer v. Brennan, 511 U.S. 825,

832 (1994). Where "society takes from prisoners the means to

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provide for their own needs," the failure to provide such care "may actually produce physical torture or a lingering death." Brownv. Plata, 131 S. Ct. 1910, 1928 (2011) (internal quotation marks omitted). Undue suffering, unrelated to any legitimate penological purpose, is considered a form of punishment proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Eighth Amendment is meant to prohibit "unnecessary and wanton infliction of pain," which is "repugnant to the conscience of mankind." Id. at 105-06 (internal quotation marks omitted).
The Amendment's focus on punishment means that not all shortages or failures in care exhibit the intent and harmfulness required to fall within its ambit. See Farmer , 511 U.S. at 837 (reasoning that the Eighth Amendment's prohibition of punishment implies an act done with intentionality). Therefore, to prove an Eighth Amendment violation, a prisoner must satisfy both of two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators' deliberate indifference to that need. See Estelle, 429 U.S. at 106 (holding that inadequate treatment must be "sufficiently harmful to evidence deliberate indifference to serious medical needs"); Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987) ("A plaintiff must satisfy two elements to present a viable [Eighth Amendment] claim: he must show a serious medical need, and he must prove the defendant's purposeful indifference thereto.").
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First, a medical need must be "serious." Id.

This

objective prong requires that the need be "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." Gaudreault v. Municipality of Salem,

Mass., 923 F.2d 203, 208 (1st Cir. 1990). This prong does not

impose upon prison administrators a duty to provide care that is

ideal, or of the prisoner's choosing. SeeUnited States v. Derbes,

369 F.3d 579, 583 (1st Cir. 2004) (stating that prison

administrators are "by no means required to tailor a perfect plan

for every inmate; while [they are] constitutionally obligated to

provide medical services to inmates, these services need only be on

a level reasonably commensurate with modern medical science and of

a quality acceptable within prudent professional standards"

(internal quotation marks and citations omitted)); United Statesv.

DeCologero, 821 F.2d 39, 43 (1st Cir. 1987) (same); Ferranti v.

Moran, 618 F.2d 888, 891 (1st Cir. 1980) ("[A]llegations [that]

simply reflect a disagreement on the appropriate course of

treatment . . . fall[] short of alleging a constitutional

violation."). Rather, the Constitution proscribes care that is

"'so inadequate as to shock the conscience.'" Torraco v. Maloney,

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923 F.2d 231, 235 (1st Cir. 1991) (quoting Sires , 834 F.2d at
13)).7
Second, even if medical care is so inadequate as to
satisfy the objective prong, the Eighth Amendment is not violated
unless prison administrators also exhibit deliberate indifference
to the prisoner's needs. Estelle , 429 U.S. at 105-06. For
purposes of this subjective prong, deliberate indifference "defines
a narrow band of conduct," Feeney v. Corr. Med. Servs. Inc. , 464
F.3d 158, 162 (1st Cir. 2006), and requires evi dence that the
failure in treatment was purposeful. See Estelle, 429 U.S. at 105
(holding that "an inadvertent failure to provide adequate medical
care" is not a constitutional violation); 8 id. at 106 ("Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner."); Watsonv. Caton, 984 F.2d 537,
540 (1st Cir. 1993) ("The courts have consistently refused to
7 Although these cases address the second, subjective prong of the Eighth Amendment analysis, we have recognized that "the subjective deliberate indifference inquiry may overlap with the objective serious medical need determination" and that "similar evidence . . . may be relevant to both components." Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 498 (1st Cir. 2011) (internal quotation marks and brackets omitted); see alsoDesRosiers v. Moran, 949 F.2d 15, 18-19 (1st Cir. 1991). As the adequacy of care is germane both to Kosilek's objective need for surgery and to the DOC's alleged deliberate indifference to that need, the principles of these cases are relevant to both steps of our analysis.
8 Although this case does not involve "an inadvertent failure to provide adequate medical care," see Estelle, 429 U.S. at 106, that fact alone does not elevate the DOC's choice among alternative treatments to "deliberate indifference" for purposes of the Eighth Amendment analysis.
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create constitutional claims out of disagreements between prisoners and doctors about the proper course of a prisoner's medical treatment, or to conclude that simple medical malpractice rises to the level of cruel and unusual punishment."). "The obvious case would be a denial of needed medical treatment in order to punish the inmate." Watson , 984 F.2d at 540. While deliberate indifference may also be exhibited by a "wanton disregard" to a prisoner's needs, Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011), such disregard must be akin to criminal recklessness, requiring consciousness of "'impending harm, easily preventable.'" Watson, 984 F.2d at 540.
When evaluating medical care and deliberate indifference, security considerations inherent in the functioning of a penological institution must be given significant weight. Battista, 645 F.3d at 454 ("[S]ecurity considerations also matter at prisons . . . and administrators have to balance conflicting demands."). "[W]ide-ranging deference" is accorded to prison administrators "in the adoption and execution of policies and practices that in their judgement are needed to . . . maintain institutional security." Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (quoting Bell v. Wolfish , 441 U.S. 520, 547 (1979)) (internal quotation marks omitted). In consequence, even a denial of care may not amount to an Eighth Amendment viol ation if that decision is based in legitimate concerns regarding prisoner safety
-40-

and institutional security. Cameron v. Tomes, 990 F.2d 14, 20 (1st

Cir. 1993) (requiring

courts to

"embrace security and

administration, . . . not merely medical judgments" in assessing

claims of deliberate indifference); Sires , 834 F.2d at 13

("[S]afety factors are properly included in the evaluation of the

medical needs of an inmate."). Importantly, prison administrators

need only have "'responded reasonably to the risk.'" Giroux v.

Somerset Cnty., 178 F.3d 28, 33 (1st Cir. 1999) (quoting Farmer ,

511 U.S. at 844).

B. Standard of Review

The test for establishing an Eighth Amendment claim of

inadequate medical care encompasses a multitude of questions that

present elements both factual and legal. Review of such "mixed

questions" is of a variable exactitude; the more law-based a

question, the less deferentially we assess the district court's

conclusion. In Re Extradition of Howard, 996 F.2d 1320, 1328 (1st

Cir. 1993) ("The standard of review applicable to mixed questions

usually depends upon where they fall along the degree-of-deference

continuum . . . .").

The ultimate legal conclusion of whether prison

administrators have violated the Eighth Amendment is reviewed de

novo. See, e.g., Thomas v. Bryant, 614 F.3d 1288, 1307 (11th Cir.

2010) ("Whether the record demonstrates that [the prisoner] was

sprayed with chemical agents . . . and that he suffered

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psychological injuries from such sprayings are questions of fact. Whether these deprivations are objectively 'sufficiently serious' to satisfy the objective prong, is a question of law . . . ." (internal citations omitted)); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) ("The district court's factual findings regarding conditions at the Prison are reviewed for clear error. However, its conclusion that the facts do not demonstrate an Eighth Amendment violation is a question of law that we review de novo." (citing Campbell v. Wood , 18 F.3d 662, 681 (9th Cir. 1994) (en banc))); Hickey v. Reeder , 12 F.3d 754, 756 (8th Cir. 1993) ("Whether conduct, if done with the required culpability, is sufficiently harmful to establish an Eighth Amendment violation is an objective or legal determination which we decide de novo ."); Alberti v. Klevenhagen , 790 F.2d 1220, 1225 (5th Cir. 1986) ("[O]nce the facts are established, the issue of whether these facts constitute a violation of constitutional rights is a question of law that may be assayed anew upon appeal."). Subsidiary legal questions, such as whether an actor's conduct amounted to deliberate indifference for purposes of the Eighth Amendment, are likewise reviewed de novo. Cf. Ornelas v. United States, 517 U.S. 690, 699 (1996) (holding that, for Fourth Amendment purposes, reasonable suspicion and probable cause determinations should receive de novo appellate review); United States v. Camacho , 661 F.3d 718, 724 (1st Cir. 2011) (we review de novoa district court's
-42-

subsidiary reasonable suspicion and probable cause determinations in evaluating a motion to suppress); United States v. Bucci , 582 F.3d 108, 115-17 (1st Cir. 2009).
Our court awards deference to the district court's resolution of questions of pure fact and issues of credibility. See, e.g. , DesRosiers v. Moran , 949 F.2d 15, 19 (1st Cir. 1991) (reviewing factual findings regarding the adequacy of care deferentially); Torraco, 923 F.2d at 234 (finding that issues of culpability in a deliberate indifference inquiry are usually questions for a jury). We will reverse the district court's findings on such factual questions only for clear error. DesRosiers, 949 F.2d at 19 ("[W]e assay findings of fact in a bench trial only for clear error."). We find clear error when we are left with "'a strong, unyielding belief, based on the whole of the record,' that the judge made a mistake." In re O'Donnel,l 728 F.3d 41, 45 (1st Cir. 2013) (quoting Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper (In re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir. 2008)). We may also find clear error when the district court commits an error of law that affects its fact-finding analysis. See Uno v. City of Holyoke, 72 F.3d 973, 978 (1st Cir. 1995) ("[T]he jurisprudence of clear error 'does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the
-43-

governing rule of law.'" (quoting Thornburg v. Gingles , 478 U.S.

30, 106 (1986))).

This standard of review tracks the Supreme Court's

framework for appellate review of claims of excessive punishment or

fines under the Eighth Amendment. United Statesv. Bajakajian, 524

U.S. 321, 336-37 & n.10 (1998). In Bajakajian, the Supreme Court

concluded that the excessiveness of a fine was a question properly

considered de novo by appellate courts, applying "the standard of

gross disproportionality articulated in [its] Cruel and Unusual

Punishments Clause precedents." Id. at 336. "[T]he application of

a constitutional standard to the facts of a particular case," the

Supreme Court reasoned, may appropriately require de novoappellate

review to ensure consistency in the law's development. Id. at 336

n.10; see also Cooper Indus. v. Leatherman Tool Grp., Inc. , 532

U.S. 424, 435-36 (2001) (extending de novo

review of the

excessiveness inquiry associated with the Excessive Fines Clause of

the Eighth Amendment to punitive damages awards); Ornela,s 517 U.S.

at 699 (holding that "as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo

on appeal").

The considerations set forth in Ornelas, and applied in

Bajakajian and Leatherman Tool , are equally relevant here.

"Medical 'need' in real life is an elastic term," Battista , 645

F.3d at 454, "that take[s its] substantive content from the

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particular context[] in which the standards are being assessed." Ornelas, 517 U.S. at 696. Similarly, the "legal rules" for what constitutes care in violation of the Eighth Amendment "acquire content only through application" -- a fact which favors de novo appellate review "to maintain control of, and to clarify, the legal principles." See id. at 697. C. The Objective Prong: Serious Medical Need
To sustain a claim under the objective prong of the Eighth Amendment, Kosilek must show that she has a serious medical need for which she has received inadequate treatment. SeeEstelle, 429 U.S. at 106; Sires, 834 F.2d at 13 (finding no Eighth Amendment violation where the prisoner failed to "present[] any evidence of a serious medical need that has gone unmet"); see also Derbes, 369 F.3d at 583 (a prison's constitutional obligation to provide medical services does not require "a perfect plan for every inmate"); DeCologero, 821 F.2d at 42 ("[T]hough it is plain that an inmate deserves adequate medical care, he cannot insist that his institutional host provide him with the most sophisticated care that money can buy."). A signif icant risk of future harm that prison administrators fail to mitigate may suffice under the objective prong. Helling v. McKinney, 509 U.S. 25, 35 (1993); see also Baze v. Rees , 553 U.S. 35, 50 (2008) ("[S]ubjecting individuals to a risk of future harm . . . can qualify as cruel and unusual punishment."); Roe v. Elyea , 631 F.3d 843, 858 (7th Cir.
-45-

2011) ("[T]he Eighth Amendment 'protects [an inmate] not only from

deliberate indifference to his or her current

serious health

problems, but also from deliberate indifference to conditions

posing an unreasonable risk of serious damage to future health.'"

(quoting Board v. Farnham, 394 F.3d 469, 479 (7th Cir. 2005))).

That GID is a serious medical need, and one which

mandates treatment, is not in dispute in this case. The parties do

not spar over the fact that Kosilek requires medical care aimed at

alleviating the harms associated with GID -- to the contrary, the

DOC has provided such care since 2003. Rather, the parties

disagree over whether SRS is a medically necessary component of

Kosilek's care, such that any course of treatment not including

surgery is constitutionally inadequate. The parties' disparate

positions on this issue are fit for succinct summary.

Kosilek argues that the only constitutionally sufficient

treatment regimen is to adhere to the Standards of Care's triadic

sequence in full, including the provision of SRS. Kosilek

emphasizes that doctors at both UMass and Fenway Clinic -- doctors

hired by the DOC -- confirmed at trial that SRS was "medically

necessary." The failure to provide treatment, these doctors

testified, would almost certainly lead to a deterioration in

Kosilek's mental state and a high likelihood of self-harming

behaviors. In light of this risk, and given that they believed

Kosilek had successfully met all eligibility criteria for SRS,

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these doctors believed that any course of treatment excluding SRS is insufficient to treat Kosilek's GID.
In contrast, the DOC argues that full progression through the Standards of Care's triadic sequence is not the only adequate treatment option, as Kosilek's GID may be appropriately managed with treatment short of SRS. The DOC maintains that the evidence does not meet the standards for negligent treatment of a medical condition, much less the higher Eighth Amendment standard. See Estelle, 429 U.S. at 106 ("Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment."); Watson, 984 F.2d at 540 (stating that "simple medical malpractice" does not "rise[] to the level of cruel and unusual punishment").
Relying on the advice of accredited medical professionals, the DOC argues that its alternative course of treatment -- which provides Kosilek such alleviative measures as psychotherapy, hormones, electrolysis, and the provision of female garb and accessories -- is sufficient to treat Kosilek's GID and far exceeds a level of care that would be "so inadequate as to shock the conscience." See Torraco , 923 F.2d at 235 (quoting Sires, 834 F.2d at 13). Moreover, this course of treatment has, in practice, greatly diminished Kosilek's mental distress and allowed her a fair measure of contentment. Should suicidal ideation arise
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in the future, the DOC contends that -- based on the advice of its

medical experts and its own penological experience -- it would be

able to address that future risk appropriately through

psychotherapy and antidepressants.

We begin by discussing the district court's conclusions

regarding the objective prong. We then examine de novo

the

question whether the treatment offered was constitutionally

adequate.

1. The district court's medical prudence determination

The district court ruled that SRS was a medically

necessary treatment, and that Dr. Schmidt's alternative belief was outside the bounds of medical prudence. 9 However, the court's

finding that Dr. Schmidt's views were medically imprudent was based

on several erroneous determinations.

First, the court ruled that, unlike prudent medical

professionals, Dr. Schmidt did not "follow" the Standards of Care

in his treatment of GID. This finding ignored critical nuance in

Dr. Schmidt's testimony and based its conclusion on a severely

strained reading of Dr. Levine's expert testimony.

9 For the sake of clarity, we reiterate that medical imprudence -without more -- is insufficient to establish an Eighth Amendment violation. See Estelle, 429 U.S. at 105-06; Watson , 984 F.2d at 540. Instead, a prisoner must satisfy both prongs of the Eighth Amendment inquiry, proving that the level of care provided is "sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106.
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As an initial matter, the Standards of Care themselves

admit of significant flexibility in

their interpre tation and

application. They state, for example, that "[t]he Standards of

Care [a]re Clinical Guidelines " and are "intended to provide

flexible directions" to medical professionals in crafting treatment

plans. Standards of Care at 1 (emphases added). The Standards of

Care also specifically warn that "[a]ll readers should be aware of

the limitations of knowledge in this area." Standards of Care at

1. "Individual professionals and organized programs," the

Standards of Care continue on, "may modify [the standards]" as

appropriate. Id. at 2. Dr. Levine's testimony acknowledged this

flexibility:

[DR. LEVINE]: [T]he "Standards of Care" was a consensus document from people from seven different countries or something, you know, who come from different systems, and it was a political process that forged together a set of standards . . . . So "prudent" is a wonderful word, but it's not like it has one simple definition.

. . .

THE COURT: But is this an area in which you think prudent professionals can reasonably differ as to what is at least minimally adequate treatment for this condition?

[DR. LEVINE]: Yes, and do.

Moreover, the district court put great weight on the fact that the Standards of Care require that patients receive two letters of recommendation prior to SRS. The court concluded,
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therefore, that "prudent professionals who treat individuals suffering from severe gender identity disorders write such letters of recommendation," and it faulted Dr. Schmidt as imprudent for his failure to engage in this practice. In so doing, the court relied on Dr. Levine's testimony, which it believed stated that a prudent professional would not "[refuse] to write letters of recommendation."
Dr. Schmidt's testimony, however, makes clear that although he does not advocate or recommend surgery to his patients, if a patient chooses to seek SRS, he releases all of their medical files to a surgeon and writes that surgeon a letter confirming that the patient is eligible for surgery. Insofar as Dr. Schmidt had not advocated for the surgery, this neutrality aligns with what Dr. Levine describes as the accepted practice for doctors in the treatment of GID: "[i]f the patient meets eligibility requirements . . . we then write a letter of support . . . I understand how others may perceive this as a recommendation . . . [but] we tell ourselves we are opening a gate to their decision." Therefore, whatever the semantic force of the district court's distinction, we see no material difference between the letters written by Dr. Schmidt confirming a patient's readiness for surgery and what the Standards of Care refers to as a letter of recommendation.
The district court next concluded that Dr. Schmidt was imprudent because antidepressants and psychotherapy alone are
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inadequate to treat GID. Again, the court claimed that it relied on the testimony of Dr. Levine, but misconstrued his testimony in support of its conclusion. Dr. Levine did in fact state that "gender dysphoria is not significantly ameliorated . . . by treating [patients] with a prozac-like drug alone." He continued on, however, to explain that he did not believe this was the treatment plan advocated by Dr. Schmidt or the DOC. To the contrary, he understood that Kosilek would continue to receive ameliorative treatment for her GID and, if she entered a depressive or suicidal state based on her inability to receive SRS, antidepressants and psychotherapy would be used to help stabilize her mental state so as to allev iate the risk of suicide while working with her to craft new perspectives and life goals beyond surgery. He felt that the treat ment might well be successful in this capacity, when combined with the direct alleviative treatments currently provided.
Finally, the district court found Dr. Schmidt imprudent because he did not believe that a real-life experience could occur in prison, given that it was an isolated, single-sex environment. The district court disagreed, stating that it had concluded a reallife experience could occur in prison, as Kosilek would remain incarcerated for her entire life. In reaching this determination, the court made a significantly flawed inferential leap: it relied on its own -- non-medical -- judgment about what constitutes a
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real-life experience to conclude that Dr. Schmidt's differing viewpoint was illegitimate or imprudent. Prudent medical professionals, however, do reasonably differ in their opinions regarding the requirements of a real-life experience -- and this reasonable difference in medical opinions is sufficient to defeat Kosilek's argument. Cf. Bismark v. Fisher, 213 F. App'x 892, 897 (11th Cir. 2007) ("Nothing in our case law would derive a constitutional deprivation from a prison physician's failure to subordinate his own professional judgment to that of another doctor . . . ."); Estate of Cole by Parduev. Fromm, 94 F.3d 254, 261 (7th Cir. 1996); Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977).
In fact, Dr. Levine noted that an incarcerative environment might well be insufficient to expose Kosilek to the variety of societal, familial, and vocational pressures foreseen by a real-life experience. This viewpoint aligned with that of Dr. Schmidt and Osborne. And, although Dr. Forstein's written report appears to presume Kosilek had completed a real-life experience, it echoed this same point: "being in prison has helped [Kosilek] consolidate her desire . . . simplifying the issues, without the stressors and choices that she would have had to make out in the outside real world." We find no support for the district court's conclusion that no reasonable medical expert could opine that Kosilek lacked real-life experience, particularly in light of the contrary testimony from medical experts concerning the range of
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social, environmental, and professional considerations that are
necessary to constitute a real-life experience under the Standards
of Care. The district court thus erred by substituting its own
beliefs for those of multiple medical experts.10
The district court's finding of medical imprudence relied
heavily on inferences we do not believe can rightly be drawn from
Dr. Levine's testimony; this finding also ignored significant
contrary evidence regarding the breadth and variety of acceptable
treatments for GID within the medical community.11 Its conclusion
that the F enway Center's recommendation constituted the sole
acceptable treatment plan is, thus, contradicted by the record.
10 There are obvious reasons for the range of judgments in this area. Although the medical experts disagreed over whether experience in a prison setting could qualify as real-life experience, none of the experts who opined that it could do so appear to have considered the fact that after SRS, Kosilek would most likely be housed in the drastically different setting of a female facility. This distinction was reflected in Dr. Forstein's report, which stated that "[Kosilek's] 'real life experience' leads her to the conclusion that so long as she is in a male prison . . . she cannot perceive herself as a true woman." This statement acknowledges that any real-life experience available to Kosilek was shaped by her current, all-male prison environment. Kosilek introduced no evidence to show that her experience there would satisfy the requirement that she have real-life experience in her post-operative housing environment.
11 The district court ignored or minimized significant portions of Dr. Levine's testimony on the theory that the doctor had based his evaluation of medical prudence on the "erroneous assumption[]" that Kosilek may not have had a real-life experience in prison and faced no other extrinsic obstacles to surgery. As explained above, in doing so the court improperly supplanted a question of medical opinion -- on which experts may differ -- with its own decision based on a layman's view, and terming all contrary views imprudent.
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2. Adequacy of the DOC's treatment plan Regarding the medical adequacy of Kosilek's treatment, the district court held that psychotherapy and antidepressants alone would not adequately treat Kosilek's GID. This finding mischaracterizes the issues on appeal and unduly minimizes the nature of the DOC's preferred treatment plan. The DOC does not claim that treating Kosilek's GID merely with therapy and antidepressants alone would constitute adequate care. Cf. Fields v. Smith , 653 F.3d 550, 556 (7th Cir. 2011) (accepting, in the absence of contrary evidence, expert testimony that "psychotherapy as well as antipsychotics and antidepressants . . . do nothing to treat the underlying disorder [of GID]"). In fact, since Kosilek I the DOC has acknowledged the need to directly treat Kosilek's GID. Beginning in 2003, it has provided hormones, electrolysis, feminine clothing and accessories, and mental health services aimed at alleviating her distress. The parties agree that this care has led to a real and marked improvement in Kosilek's mental state. There is also no dispute that this care would continue, whether or not SRS is provided. The question before our court, therefore, is not whether antidepressants and psychotherapy alone are sufficient to treat GID, or whether GID constitutes a serious medical need. Rather, the question is whether the decision not to provide SRS -- in light of the continued provision of all ameliorative measures currently
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afforded Kosilek and in addition to antidepressants and psychotherapy -- is sufficiently harmful to Kosilek so as to violate the Eighth Amendment. It is not. See Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) ("[I]t's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes."); see also Estelle, 429 U.S. at 106 (requiring proof of "acts or omissions sufficiently harmful" as to illustrate deliberate indifference to a serious medical need); Estate of Bearden ex rel. Bearden v. Anglin, 543 F. App'x 918, 921 (11th Cir. 2013); Leavitt, 645 F.3d at 497.
Kosilek admits that the DOC's current treatment regimen has led to a significant stabilization in her mental state. Kosilek's doctors testified to the same, highlighting her "joy around being feminized." This claim is also borne out by the passage of significant time since she exhibited symptoms of suicidal ideation or attempted to self-castrate. In addition to alleviating her depressive state, this treatment has also resulted in significant physical changes and an increasingly feminine appearance.
The significance of a future risk of suicidality is not one that this court takes lightly, and Kosilek is right to note that a clear risk of future harm may suffice to sustain an Eighth
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Amendment claim. See Helling, 509 U.S. at 35 (determining that an "unreasonable risk" of future harm may amount to an Eighth Amendment violation); Baze, 553 U.S. at 49; Roe, 631 F.3d at 858. Nonetheless, the risk of suicidal ideation is born from Kosilek's GID-related mental distress. Therefore an assessment of the gravity of that risk, and its appropriate treatment, must encompass the entirety of the DOC's treatment plan, not merely the potential addition of psychotherapy and antidepressants.
Kosilek is provided hormones, facial hair removal, feminine clothing and accessories, and access to regular mental health treatment. The DOC also stands ready to protect Kosilek from the potential for self-harm by employing its standard and accepted methods of treating any prisoner exhibiting suicidal ideation. Trial testimony established that this plan offers real and direct treatment for Kosilek's GID. It employs methods proven to alleviate Kosilek's mental distress while crafting a plan to minimize the risk of future harm. See Carpenter, 316 F.3d at 186. It does not wantonly disregard Kosilek's needs, but accounts for them. See Torraco, 923 F.2d at 235.
The law is clear that where two alternative courses of medical treatment exist, and both alleviate negative effects within the boundaries of modern medicine, it is not the place of our court to "second guess medical judgments" or to require that the DOC adopt the more compassionate of two adequate options. Layne v.
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Vinzant, 657 F.2d 468, 474 (1st Cir. 1981) (quoting Westlake v.
Lucas, 537 F.2d 857, 8 60 n.5 (6th Cir. 1976)); Bismark , 213 F.
App'x at 897; Medrano v. Smith , 161 F. App'x 596, 599 (7th Cir.
2006); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Bowrin,g
551 F.2d at 48.
That the DOC has chosen one of two alternatives -- both
of which are reasonably commensurate with the medical standards of
prudent professionals, and both of which provide Kosilek with a
significant measure of relief -- is a decision that does not
violate the Eighth Amendment.12
Kosilek warns, however, that upholding the adequacy of
the DOC's course of treatment in this case -- despite her medical
12 This holding in no way suggests that correctional administrators wishing to avoid treatment need simply to find a single practitioner willing to attest that some well-accepted treatment is not necessary. We do not establish here a per se rule allowing a dissenting medical opinion to carry the day. Rather, our determination is limited to the particular record on appeal, which involves a medical condition that admits of a number of valid treatment options. This fact was testified to by Dr. Levine, recognized by the UMass doctors in their correspondence with the DOC, and corroborated by Dr. Forstein in his written report.
The DOC did not engage in a frenzy of serial consultations aimed at finding the one doctor out of a hundred willing to testify that SRS was not medically necessary. Rather, it made a considered decision to seek out a second opinion from an expert previously considered in its initial selection process. Our opinion rests on the facts presented in this record, and we find merely that the regimen of care provided by the DOC -- which includes hormonal treatments as well as feminine products, clothing, and hair removal, and which has successfully alleviated the severity of a prisoner's distress -- is not sufficiently harmful to Kosilek to constitute an Eighth Amendment violation.
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history and record of good behavior -- will create a de facto ban against SRS as a medical treatment for any incarcerated individual. We do not agree. For one, the DOC has specifically disclaimed any attempt to create a blanket policy regarding SRS. We are confident that the DOC will abide by this assurance, as any such policy would conflict with the requirement that medical care be individualized based on a particular prisoner's serious medical needs. Se,e e.g., Roe, 631 F.3d at 862-63 (holding that the failure to conduct an individualized assessment of a prisoner's needs may violate the Eighth Amendment).
For another, this case presents unique circumstances; we are simply unconvinced that our decision on the record before us today will foreclose all litigants from successfully seeking SRS in the future. Certain facts in this particular record -- including the medical providers' non-uniform opinions regarding the necessity of SRS, Kosilek's criminal history, and the feasibility of postoperative housing -- were important factors impacting the decision. D. The Subjective Prong: Deliberate Indifference
1. The DOC's reliance on medical experts The subjective element of an Eighth Amendment claim for injunctive relief requires not only that Kosilek show that the treatment she received was constitutionally inadequate, but also that the DOC was -- and continues to be -- deliberately indifferent
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to her serious risk of harm. See Farmer, 511 U.S. at 844-45.13 On
the record presented, this is a burden Kosilek cannot meet. Even
if the district court had been correct in its erroneous
determination that SRS was the only medically adequate treatment
for Kosilek's GID, the next relevant inquiry would be whether the
DOC also knew or should have known this fact, but nonetheless
failed to respond in an appropriate manner. See Wilson v. Seiter,
501 U.S. 294, 298 (1991). In answering this question, it is not
the district court's own belief about medical necessity that
controls, but what was known and understood by prison officials in
crafting their policy. Id. at 300 (requiring a showing of
purposefulness or intent on the part of prison administrators).
In this case, the DOC solicited the opinion of multiple
medical profes sionals and was ultimately presented with two
alternative treatment plans, which were each developed by different
medical experts to mitigate the severity of Kosilek's mental
distress. The choice of a medical option that, although disfavored
by some in the field, is presented by competent professionals does
13 Although the DOC has not specifically argued that the conflicting medical opinions preclude a finding of subjective deliberate indifference, we do not find this argument waived. As we have explained above, the subjective and objective analyses overlap. See supra note 7; see also Leavitt, 645 F.3d at 498. The DOC's contention that the district court erred in deeming SRS medically necessary and in rejecting Dr. Schmidt's approach as imprudent necessarily entails the DOC's subjective belief that SRS was unnecessary. The contr ary position -- i.e. , that SRS is not objectively necessary but that the DOC did not disagree as to the need for SRS -- would be wholly illogical.
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not exhibit a level of inattention or callousness to a prisoner's
needs rising to a constitutional violation1.4 Cf. Torraco, 923 F.2d
at 234 ("[T]his court has hesitated to find deliberate indifference
to a serious need '[w]here the dispute concerns not the absence of
help, but the choice of a certain course of treatment,' [but]
deliberate indifference may be found where the attention received
is 'so clearly inadequate as to amount to a refusal to provide
essential care.'" (internal citations omitted)). Moreover, a later
court decision -- ruling that the prison administrators were wrong
in their estimation of the treatment's reasonableness -- does not
14 If the prison itself should have been aware that some of the medical advice it was receiving was imprudent -- that is, if any layperson could have realized that the advice was imprudent -- then the decision to still follow that advice may qualify as deliberate indifference. See Farmer, 511 U.S. at 846 n.9 ("If, for example, the evidence before a district court establishes that an inmate faces an objectively intolerable risk of serious injury, the defendants could not plausibly persist in claiming lack of awareness . . . ."); Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004) ("If [the challenged prison conditions] are found to be objectively unconstitutional, then that finding would also satisfy the subjective prong because the same information that would lead to the court's conclusion was available to the prison officials."). The facts of this case, however, are highly distinct from such a scenario.
Nor did the district court's conclusion render the DOC's continued refusal to provide SRS deliberately indifferent. On the contrary, the evidence was conflicting as to the medical need for SRS. The choice between reasonable medical views was not for the district court to make, and the DOC remained entitled to reasonably rely on Schmidt's and Osborne's expert opinions. Moreover, even assuming arguendo that the DOC was on notice that its treatment was insufficient, the DOC's continued refusal also rested on valid security concerns, discussed below, such that its actions did not amount to deliberate indifference in any event.
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somehow convert that choice into one exhibiting the sort of obstinacy and disregard required to find deliberate indifference. Cf. Nadeau v. Helgemoe, 561 F.2d 411, 417 (1st Cir. 1977) (refusing to "substitute the values and judgment of a court for the values and judgment of the . . . prison administration").
2. The DOC's security concerns The subjective prong also recognizes that, in issues of security, "[p]rison administrators . . . should be accorded wideranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell, 441 U.S. at 547. Although we cannot "abdicate our responsibility to ensure that the limits imposed by the Constitution are not ignored," Blackburn v. Snow, 771 F.2d 556, 562 (1st Cir. 1985), we do not sit to substitute our own judgment for that of prison administrators, see Nadeau , 561 F.2d at 417. As long as prison administrators make judgments balancing security and health concerns that are "within the r ealm of reason and made in good faith," their d ecisions do not amount to a violation of the Eighth Amendment. Battista, 645 F.3d at 454. The DOC officials explained that they believed SRS would create new security issues, the most significant being the provision of safe housing options for Kosilek after her surgery. They further explained the importance of keeping other inmates from
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believing that they could use threats of suicide to extract concessions from the prison administration. Nonetheless, rather than deferring to the expertise of prison administrators, the district court ignored the DOC's stated security concerns, reasoning both that Kosilek could be housed safely and that the DOC had not acted out of a legitimate concern for Kosilek's safety and the security of the DOC's facilities. As explained below, this was in error.
a. The DOC's concerns about safety and security were reasonable Recognizing that reasonable concerns would arise regarding a post-operative, male-to-female transsexual being housed with male prisoners takes no great stretch of the imagination. See Farmer, 511 U.S. at 848-49 (summarizing evidence that a prison's refusal to provide segregated housing to a pre-operative male-to-female transsexual could pose significant security concerns). At the same time, as particularly relevant in Kosilek's case, the DOC's security report reflected that significant concerns would also arise from housing a formerly male inmate -- with a criminal history of extreme violence against a female domestic partner -- within a female prison population containing high numbers of domestic violence survivors. Nonetheless, in dismissing the DOC's concerns, the district court relied heavily on the fact that security issues have not yet arisen within MCI-Norfolk's general population. Rejecting the testimony of multiple
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individuals with decades of penological experience -- all of whom

acknowledged the risk of housing a female prisoner at MCI-Norfolk

-- the district court reasoned that Kosilek's past safety was

indicative of a likelihood that she could reside safely at the

prison after her operation.

This reasoning wrongly circumvents the deference owed to

prison administrators: the appropriate inquiry was not whether the

court believed that Kosilek could be housed safely, but whether the

DOC has a reasoned basis for its stated concerns. Indeed, that

Kosilek had so far been safe within MCI-Norfolk's prison population

does not negate the DOC's well-reasoned belief that safety concerns

would arise in the future after SRS. Cf. Jones v. N.C. Prisoners'

Labor Union , 433 U.S. 119, 132-33 & n.9 (1977) (holding, in the

First Amendment context, that the rights of prisoners may be

abridged based on a

reasonable belief that future harm or

disruption may occur); cf. Hudson v. Palmer, 468 U.S. 517, 526-27

(1984) (requiring prison administrators to implement prophylactic

solutions to foreseeable security issues reasonably within the

scope of their expertise). Moreover,

the fact that, pre-

operatively, Kosilek has not been subject to assault or threats

does not vitiate the concern that she would be victimized after

receiving SRS.15

15 These concerns were obvious to more than just those individuals within the DOC with significant penological experience. The likelihood that issues surrounding secure housing would arise after
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The district court also reasoned that "the DOC [could] reasonably assure the safety of Kosilek and others after sex reassignment surgery by housing Kosilek in a segregated protective custody unit." It then noted, however, that there existed a strong argument that such isolation would amount to "a form of extrajudicial punishment that is prohibited by the Eighth Amendment." This warning echoes the very concerns highlighted by the DOC, which expressed disagreement with the use of long-term isolation as a housing solution for Kosilek, based on its potential negative effects on her mental health. See alsoBattista, 645 F.3d at 454 (explaining that creating a segregated treatment center to house a GID prisoner would "pose administrative difficulties and be isolating"). The deference awarded to prison administrators cannot be defeated by such circular reasoning, which dismisses the DOC's concern in one breath only to recognize its validity in the next.
The prison administrators in this case have decades of combined experience in the management of penological institutions, and it is they, not the court, who are best situated to determine what security concerns will arise. See Bell , 441 U.S. at 548 ("[J]udicial deference is accorded [in part] because the administrator ordinarily will . . . have a better grasp of his domain than the reviewing judge . . . ."). The DOC's judgment
SRS was also acknowledged by Kosilek's treating psychologist, Mark Burrows, and by the Fenway Center doctors in their initial report.
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regarding post-operative housing is without doubt "within the realm of reason," Battista , 645 F.3d at 454, and the district court's alternative belief as to the possibility of safely housing Kosilek does not suffice to undermine this reasonableness.
The DOC officials also expressed concern that providing Kosilek SRS would incentivize the use of suicide threats by prisoners as a means of receiving desired benefits. Although the district court determined that, in this case, Kosilek's risk for suicidal ideation was very real, this finding does not invalidate the DOC's reason able belief that providing SRS might lead to proliferation of false threats among other prisoners.
The DOC's concern -- regarding the unacceptable precedent that would be established in dealing with future threats of suicide by inmates to force the prison authorities to comply with the prisoners' particular demands -- cannot be discounted as a minor or invalid claim. Such threats are not uncommon in prison settings and require firm rejection by the authorities, who must be given ample discretion in dealing with such situations. Given the circumstances presented here, we cannot say that the DOC lacks reasonable security concerns.
b. Deference to the DOC's reasonable concerns about safety and security The district court ultimately dismissed the DOC's concerns as pretextual, reasoning that DOC was in fact acting in response to "public and political criticism." The primary evidence
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on record tending to support this theory includes a press interview by Commissioner Dennehy, Dennehy's relationships with a state senator and the lieutenant governor, and the acknowledgment that the DOC was aware of negative news coverage regarding Kosilek's request for surgery.
In her testimony, Dennehy denied being influenced by such media and political pressures, and stated that the decision not to provide SRS was founded in bona fide security concerns alone. The district court, however, found this testimony non-credible, and this credibility finding is the sort of determination to which our court gives defe rence. See Fed. R. Civ. P. 52(a)(6). Even accepting that Dennehy's motivations were colored by political and media pressure, however, does not take Kosilek's claim as far as it needs to go.
As an initial matter, the fact that Dennehy was motivated in part by concerns unrelated to prison security does not mean that the security concerns articulated by the DOC were irrelevant, wholly pretextual, or -- most importantly -- invalid on the merits. In Battista , our court held that deference to the decisions of prison administrators could be overcome where those administrators admittedly relied on inflated data, identified a security concern only several years after refusing to provide treatment for an acknowledged medical need, and engaged in a pattern of changing positions and arguments before the court. Battista , 645 F.3d at
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455. Such gross delays and misstatements were not present here.16 Rather, the DOC testified consistently that it believed the postoperative security concerns surrounding Kosilek's treatment were significant and problematic.17 Even if not entitled to deference, see id., those concerns still matter insofar as they are reasonable and valid, and Kosilek did not put on any evidence showing that they wholly lacked merit.18

16 Great weight was placed on the fact that Dennehy told a reporter

that there were significant security concerns about post-operative

housing three days before she met with Superintendents Spencer and

Bissonnette. The record reveals, however, that discussions about

housing had previously occurred at Executive Staff Meetings, and

Dennehy testified that she had conducted phone calls with both

Superintendents prior to meeting to

formalize their security

report. This timeline, therefore, is far from sufficient to

establish that the DOC's security assessments were unprincipled or

invalid.

17 That the DOC may have, in the district court's assessment, engaged in a pattern of prevarication regarding whether they understood that SRS was being recommended by UMass as medically necessary, does not undercut the consistency with which they identified safety and security concerns -- concerns which are within their expert province -- that would arise from the surgery.

18 Kosilek did cross-examine Commissioner Clarke to show that a

transgendered prisoner had safely been housed in a Washington State

prison under his supervision. Left unexplored, however, were the

numerous ways in which MCI-Norfolk's environment, facilities, or

population might be distinct from this prison in Washington.

Neither was there a comparison between that prisoner's criminal

history and the criminal history of Kosilek. That an individual

was housed safely by Commissioner Clarke while employed in another

state does not rebut Superintendent Bissonnette's testimony that

moving her to MCI-Framingham would cause climate problems in that

particular prison. See Feeley v. Sampson, 570 F.2d 364, 371 (1st

Cir. 1978) (rejecting uniform housing conditions for detainees,

without regard to their disparate

criminal histor y, because

"Constitutional rights cannot be defined in terms of literal

comparisons of this nature").

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Second, when determining the appropriateness of injunctive relief, our focus must include "current attitudes and conduct." Farmer, 511 U.S. at 845 ("'[D]eliberate indifference[] should be determined in light of the prison authorities' current attitudes and conduct': their attitudes and conduct at the time suit is brought and persisting thereafter." (quoting Helling, 509 U.S. at 36)). Dennehy has not served as DOC Commissioner since 2007. Given the age of this litigation and the changes in DOC leadership that have occurred since the suit was filed, the district court's assumption that Dennehy's attitudes necessarily carried over to her successors and governed their actions is unsupported by the record. Although consideration of Dennehy's motivation is surely relevant, it is insufficient to show that the DOC continued to be motivated by public pressure even after her departure, or that this is what motivates the DOC presently.
Indeed, it was Commissioner Clarke -- and not Dennehy -who made the decision here. And the only evidence tending to show that Commissioner Clarke may have considered public and political criticism were two letters received by Clarke -- who did not respond -- from Massachusetts legislators. These letters, however, relate almost in their entirety to concerns about the cost of SRS, and the district court soundly rejected any argument that the DOC, or Clarke specifically, had adopted its safety and security measures as a pretextual means of addressing the cost concerns
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raised by state legislators. Moreover, Clarke was never found by the court to be noncredible.19
The district court improperly imputed its belief that Commissioner Dennehy had acted out of concern for public and political pressure to its assessment of the motivations of future DOC Commissioners. This error ignores the requirement, in cases of injunctive relief, that a court consider the attitudes and beliefs of prison administrators at the time of its decision. Id. at 84546. The effect of this error is particularly clear given that Clarke has now been replaced by Commissioner Spencer, so that Dennehy is now several administrations and more than seven years removed from the decisionmaking process. Without proof that the DOC remains motivated by pretextual or improper concerns with public pressure, even if it was assumed that Dennehy was improperly motivated, the district court's finding that injunctive relief was required is unsupportable.
III. Conclusion We are not tasked today with deciding whether the refusal to provide SRS is uncompassionate or less than ideal. Neither finding would support Kosilek's claims of a constitutional violation. The Eighth Amendment, after all, proscribes only medical care so unconscionable as to fall below society's minimum
19 We further note that the DOC has not defended this case based on cost considerations relating to the provision of SRS.
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standards of decency. See Estelle, 429 U.S. at 102-05. In this case, the DOC has chosen to provide a form of care that offers direct treatment for Kosilek's GID. Cf. Leavitt, 645 F.3d at 498 (acknowledging that the effects of treatment decisions may be relevant to consideration of the subjective component of the Eighth Amendment). Moreover, it has done so in light of the fact that provision of SRS would create new and additional security concerns -- concerns that do not presently arise from its current treatment regimen.
Given the positive effects of Kosilek's current regimen of care, and the DOC's plan to treat suicidal ideation should it arise, the DOC's decision not to provide SRS does not illustrate severe obstinacy or disregard of Kosilek's medical needs. DesRosiers, 949 F.2d at 19 ("[T]he complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain."). Rather, it is a measured response to the valid security concerns identified by the DOC. Battist,a 645 F.3d at 454 ("Medical 'need' in real life is an elastic term: security considerations also matter at prisons. . . ."); Cameron, 990 F.2d at 20 ("Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments."). Having reviewed the record before us, we conclude that Kosilek has failed, on these facts, to demonstrate an Eighth Amendment violation. Accordingly, we reverse the district court's order of injunctive relief and
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remand this case to the district court with instructions to dismiss the case.
Reversed and Remanded. -Dissenting Opinions Follow-
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THOMPSON, Circuit Judge, dissenting. The majority turns a blind eye to binding precedent, opting instead to cobble together law from other circuits and non-Eighth Amendment jurisprudence to formulate a standard of review that, though articulated as one of variable exactitude, amoun ts to sweeping de novo review. Armed with the ability to take a fresh look at findings that clearly warranted deference, the majority easily steps into the trial judge's shoes -- the inarguable superiority of the judge's ability to marshal facts, assess motive, and gauge credibility all but forgotten. The parameters set by the majority foretold the result. It concludes that the Massachusetts Department of Correction did not violate Michelle Kosilek's constitutional rights. That conclusion is erroneous, the majority's analytical path to it is misguided, and the fact that this case is even subject to en banc scrutiny in the first place is wrong. And so I dissent.
I. En Banc Grant The criteria for en banc relief are clear: it is not a favored form of relief, and ordinarily should not be ordered unless "(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance." Fed. R. App. P. 35(a). My colleagues' reasons for granting en banc review are not articulated, but it seems clear that the maintenance of uniformity piece is not in play. Therefore I can only assume they perceive an
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issue of exceptional importance. This justification is problematic.
As my colleague has explained in a series of thoughtful dissents, in this circuit there has been what some might see "as the recurring unprincipled denial and granting of petitions for rehearing en banc, without any attempt to define and apply a set of objective criteria to determine when a case is of exceptional importance." Kolbe v. BAC Home Loans Servicing, LP, 738 F.3d 432, 474 (1st Cir. 2013) (Torruella, J., dissenting); see also Igartúa v. United States, 654 F.3d 99, 105 (1st Cir. 2011) (Torruella, J., filing opinion concerning denial of en banc consideration); United States v. Vega-Santiago, 519 F.3d 1, 7 (1st Cir. 2008) (Torruella, J., dissenting). I am at a loss to see what objective criteria warranted review in this case.
While the relief ordered by the district court, and affirmed by a majority of the original panel, was unprecedented, Kosilek's case is not a legally complicated one. Rather it is a fact-intensive dispute, which required the original panel to determine whether the district court's take on the significant amount of evidence, and its ultimate holding as to the existence of an Eighth Amendment violation, was erroneous. I fail to see what in this framework made this case worthy of en banc review.
I am not implying this case is unimportant. This litigation is significant to Kosilek, the DOC, and many others, and
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the rights afforded under the Eighth Amendment are crucial. But if those things alone were enough, nearly every case would attract the full court's attention. And a good deal more cases would be heard en banc if disagreeing with the result reached by the original panel, or simply desiring to weigh in, were valid grounds for awarding en banc review. They are not, but unfortunately I suspect they were the grounds that carried the day here. Se,e e.g., Kolbe, 738 F.3d at 474 (Torruella, J., dissenting) ("En banc consideration is not for the purpose of correcting panel decisions.") (citing Calderón v. Thompson , 523 U.S. 538, 569 (1998) (Souter, J., dissenting)).
This case does not satisfy the well-settled requirements for a grant of en banc. Lamentably, a majority of this court decided otherwise. Similarly, a majority has decided that the district court got it wrong. That conclusion is fundamentally flawed, starting with the level of scrutiny paid to the lower court's decision.
II. Standard of Review The issue of what standard of review should be employed is a significant point of divergence for me, and indeed one that permeates the entirety of my discord with the majority. The majority, undoubtedly aware that it could more handily toss aside the district court's findings if it utilized a non-deferential standard of review, formulates its standard by borrowing liberally
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from other circuits and non-Eighth Amendment jurisprudence while disregarding on-point case law from this circuit. The end result is a standard that, in theory, afforded minimal deference to the lower court's finding, and in the majority's actual application, afforded essentially none.
Let me start with our common ground. I agree with the majority that different standards of review are in play. When deciding a post-bench-trial appeal, this court takes up questions of law de novo, but reviews findings of fact for clear error only. Wojciechowicz v. United States , 582 F.3d 57, 66 (1st Cir. 2009). On the latter point, this means we accept the court's factual findings, and the inferences drawn from those facts, unless the evidence compels us to conclude a mistake was made. Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st Cir. 2006). With inquiries that are more of a mixed bag, there is a continuum. Johnson v. Watts Regulator Co., 63 F.3d 1129, 1132 (1st Cir. 1995). The more fact-intensive the question, the more deferential our review. Id. Conversely, the more law-dominated the query, the more likely our review is de novo. Id.
That is where the congruity ends. The majority, undoubtedly with a certain end result in mind, maneuvers the standard of review into its most favorable form. While it correctly acknowledges that factual and legal issues are implicated, the majority utterly favors the de novo end of the
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spectrum.20 This approach does not accord with our case law
(although to read the majority you would think we had very little
on-point jurisprudence in this circuit).
For one, the majority posits that the issue of deliberate
indifference is a legal one to be reviewed de novo. It relies on
Fourth Amendment jurisprudence, citing criminal cases that, in the
context of deciding the validity of searches and seizures, hold
that reasonable suspicion and probable cause determinations should
receive de novo appellate review. See Ornelas v. United States ,
517 U.S. 690, 699 (1996); United States v. Camacho, 661 F.3d 718,
724 (1st Cir. 2011). I do not see how these cases are analogous to
Kosilek's challenge, nor why we should look to Fourth Amendment
cases rather than our Eighth Amendment jurisprudence.
In the context of the Eighth Amendment, we have explained
that the existence of deliberate indifference is a "state-of-mind
issue" that usually presents a jury question, Torraco v. Maloney,
923 F.2d 231, 234 (1st Cir. 1991), or in other words, an issue for
20 The majority's decision to give little deference to the district court is undoubtedly a boon to the DOC, and given the DOC's garbled treatment of the standard of review issue on appeal, it is a downright windfall. In violation of our rules, the DOC did not include a standard of review in its opening brief. See Fed. R. App. P. 28(a)(8)(B). In its reply brief, the DOC gave us a bit more, arguing that the appropriateness of medical care called for de novo review but neglecting to indicate what scrutiny a deliberate indifference finding necessitated. In its petition for en banc review, the DOC's position continued to evolve. It contended that a heightened standard of review should be applied because this case involves intertwined issues of law and fact.
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the finder of fact. This makes sense. Often intertwined in state-

of-mind issues are determinations about credibility and motivation;

those are classic examples of the judgment calls to which we give

deference. See Fed. R. Civ. P. 52(a)(6) ("[T]he reviewing court

must give due regard to the trial court's opportunity to judge the

witnesses' credibility."); Monahan v. Romney, 625 F.3d 42, 46 (1st

Cir. 2010). See also Janeiro, 457 F.3d at 138-39 (explaining that,

following a bench trial, "if the trial court's reading of the

record [with respect to an actor's motivation] is plausible,

appellate review is at an end") (alteration in original).

The majority recognizes Torraco, citing it for the narrow

proposition that "issues of culpability in a deliberate

indifference inquiry are usually questions for a jury," in

connection with its discussion about what standard of review

findings of fact garner. But this is a mischaracterization of what

Torraco held. Rather, the case states that "the existence

of

deliberate indifference," is a state-of-mind issue, which makes it

a typical juror question. Torraco , 923 F.2d at 234 (emphasis

added). The majority's slight spin on this holding allows it to

ignore Torraco, and lean on Fourth Amendment jurisprudence instead

to support the notion that deliberate indifference gets a fresh

look from this court.

Similarly erroneous is the majority's position that we

review de novo the district court's ultimate determination as to

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whether an Eighth Amendment violation oc curred. For support it

cites to a series of Eighth Amendment cases from other circuit

courts. See , e.g. , Thomas v. Bryant , 614 F.3d 1288, 1307 (11th

Cir. 2010); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002).

At first blush, there is some surface appeal to this position. If

nothing else, the existence of a constitutional violation sounds

like something that would fall closer to the question-of-law end of

the spectrum.

The problem though is that the ultimate

constitutional question is inextricably tied up with the factual

details that emerged at trial, the credibility of the witnesses,

and the questions of motivation. This counsels against pure de

novo review and our own case law supports this notion.

As explained above, a state-of-mind issue such as the

existence of deliberate indifference is typically left to the

finder of fact. Torraco , 923 F.2d at 234. And when reviewing a

trial judge's determination on the adequacy of medical treatment

following a bench trial, this court has applied the deferential

clearly erroneous standard. DesRosiers v. Moran, 949 F.2d 15, 19-

20 (1st Cir. 1991). On top of this, it is well established that

"elusive issues of motive and intent" (relevant here in connection

with the Eighth Amendment's subjective prong) are typically fact-

bound ones subject to the clearly erroneous rule. Fed. Refinance

Co. v. Klock, 352 F.3d 16, 27-28 (1st Cir. 2003); see alsoMcIntyre

ex rel. Estate of McIntyre v. United States, 545 F.3d 27, 40 (1st

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Cir. 2008). Thus the major pieces of the puzzle in an Eighth
Amendment inquiry -- adequacy of medical care, the existence of
deliberate indifference, and the parties' motive and intent -- are
subject to the clearly erroneous standard, making unqualified de
novo review a bad fit.
Policy concerns do not counsel otherwise, making the
majority's reliance on Ornelas, 517 U.S. at 690, a Fourth Amendment case, not particularly persuasive.21 Ornelas, which characterized
the ultimate reasonable suspicion and probable cause determination
as a mixed question of law and fact, decided that de novo review
was the best fit for its resolution. Id. at 696-97. The Supreme
Court, as the majority points out, emphasized that "[i]ndependent
review" by appellate courts can help "to maintain control of, and
to clarify, the legal principles" in reasonable suspicion and
probable cause cases. Id. at 697. While I do not disagree that as
an appellate court we are often required to clarify legal
21 The majority al so relies on United States v. Bajakajian , 524 U.S. 321 (1998), an Eighth Amendment excessive punishment and fines case, for the same proposition it cites Ornelasfor. Specifically, the majority states that in Bajakajian, the Supreme Court reasoned that the "'application of a constitutional standard to the facts of a particular case' . . . may appropriately require de novo appellate review to ensure consistency in the law's development." Bajakajian does not say this. The Court there did not address the concept of consistency of the law; it simply cited Ornelasfor the narrower proposition that de novo review attaches to the issue of whether a fine is constitutionally excessive. See id. 336, n.10. For that reason I focus on Ornelas.
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principles and ensure continuity of the law's development, this is not a persuasive justification for employing de novo review here.
As noted by the dissent in Ornelas, "[l]aw clarification requires genera lization, and some issues lend themselves to generalization much more than others." Id. at 703 (Scalia, J., dissenting). The issues here do not. Cases dealing with the constitutional adequacy of medical care under the Eighth Amendment are incredibly fact-specific, resulting in distinctive issues. The trial judge must, among other things, have a handle on the prisoner's medical condition, the treatment sought, the treatment provided (if any), what treatment medical providers recommended, what the defendant knew and when, and what motivated its decisions. This court cannot hope to match the district judge's expertise in these areas, nor can I fathom why we would want to try. The "extremely fact-bound nature" of these cases means that "de novo review [will] have relatively little benefit," id. at 700 (Scalia, J., dissenting), leaving us unmoved by the uniformity-of-the-law considerations raised by the majority.
So where does all this leave us with regard to the standard that attaches to the determination of whether the Eighth Amendment has been violated? It is clear (and the majority agrees) that with questions of varying exactitude, the "standard of review applied depends, in the last analysis, on the extent to which a particular question is fact-dominated or law-dominated." Turnerv.
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United States , 699 F.3d 578, 584 (1st Cir. 2012) (internal quotation marks omitted); see also In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013); Dugas v. Coplan, 506 F.3d 1, 8 (1st Cir. 2007). Drawing the distinction between law-heavy versus factheavy questions is sometimes a tricky thing to do, and given that establishing an Eighth Amendment claim involves a mixed question of law and fact, it is a thicket into which we must enter. Luckily, I do not think it is a particularly thorny one in this case.
Here, before reaching its ultimate constitutional conclusion, the trial court heard testimony from no fewer than nineteen witnesses (e.g., medical providers, medical experts, prison officials, and Kosilek) over the course of a trial that ultimately extended two years. The court scrutinized events that had transpired over a twenty-year period, including those relating to what treatment Kosilek had requested, what treatment had been recommended, and what care was ultimately provided. The court considered evidence about the DOC's security review, how it was conducted, and the concerns it raised. It assessed the credibility of Kosilek, DOC officials, and the medical experts. The court reviewed a copious amount of exhibits, such as Kosilek's medical records, Kosilek's prison records, DOC policies, DOC contracts, DOC manuals, reports from Kosilek's medical providers, reports penned by each side's experts, DOC staff meeting notes, security reports, medical literature, correspondence, and deposition testimony. The
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end result was pages upon pages of factual findings made by the trial judge.22
In other words, the district court "engaged in a careful
and close analysis of the trial evidence," Turner , 699 F.3d at
584, to make its ultimate determination that the DOC, without any
valid penological purpose, refused to provide medically necessary
treatment for Kosilek's life-threatening condition. Given the
clearly fact-intensive nature of the court's review, our own
examination into whether the court was correct that the DOC
violated the Eighth Amendment should be deferential, as opposed to the fresh look the majority proposes. 23 See id. ; Fed. Refinance
Co., 352 F.3d at 27 (explaining that the more fact-intensive the
question, the more deferential our review). As ably said by the
Supreme Court, "deferential review of mixed questions of law and
fact is warranted when it appears that the district court is better
positioned than the appellate court to decide the issue in
22 Indeed the majority dedicates over thirty pages of its opinion to the factual and procedural background in this case. This is not surprising; those facts are integral to the resolution of the constitutional question. What is surprising is the majority's failure to see the significance of the factually concentrated nature of this case. 23 Plus, even assuming that the conclusion that the DOC's refusal to provide care constituted an Eighth Amendment violation lands closer to the law side of the mixed-question spectrum, a measure of deference is still appropriate. See Battista v. Clarke, 645 F.3d 449, 454 (1st Cir. 2011) ("The legal labels applied to facts are reviewed on appeal more closely than a district court fact-finding, but often with some deference to the district judge.").
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question, or that probing appellate scrutiny will not contribute to

the clarity of legal doctrine." Salve Regina Coll.v. Russell, 499

U.S. 225, 233 (1991) (internal quotation marks omitted).

The majority's articulation of a standard of review that

runs afoul of our case law is not the only problem. There is also

its application. While the majority's skewed standard allows

minimal aspects of the lower court's decision to garner clear error

review, namely factual findings and credibility determinations, in

actual application essentially no deference was paid. The only

conclusion of the district court that the majority concedes

warranted deference was the judge's determination that Commissioner

Kathleen Dennehy's testimony was not credible.

24 Given the

voluminous record in this case, and the breadth of the lower

court's findings, it is simply unfathomable that the majority did

not consider a single other fact-drawn inference, credibility

finding, or motive determination, all of which warrant deference.

For instance, the district court drew inferences from the

various medical providers' testimony to decide what constituted a

prudent approach. It also considered what Commissioner Harold

Clarke's motivations were for denying sex reassignment surgery. It

drew inferences from the DOC's conduct (e.g., the timing of

security reviews and the DOC's communications with Kosilek's

24 Of course the majority then goes on to explain why the court's adverse credibility determination does not matter, a point I will get into later.
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medical providers) to determine that the DOC had engaged in prevarication and delay. The majority; however, does not appear to adjust its consideration of these issues to reflect any deference to the trial judge. Rather it decides anew what inferences should be drawn from the facts attested to at trial. Even under the majority's standard, this is not proper.
Without doubt, the level of scrutiny applied by a court permeates its analysis and guides the outcome. The impact here is clear. The Eighth Amendment is violated when prison officials fail to provide an inmate with adequate medical care, such that "their 'acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (citing Estelle v. Gamble , 429 U.S. 97, 106 (1976)). The district court concluded that the evidence established the DOC had committed such a violation. The majority says otherwise but its analysis is plagued with flaws, starting with its determination as to the objective prong.
III. Eighth Amendment: Objective Prong Whether the so-called objective component of the Eighth Amendment inquiry is satisfied turns on whether the alleged deprivation is "objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted); Leavitt, 645 F.3d at 497. In this context, a prisoner
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with a "serious medical need," Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 17-18 (1st Cir. 1995), is entitled to adequate medical care, i.e, "services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987).
That gender identity disorder is a serious medical need which warrants treatment, is not, as the majority notes, disputed. The disagreement -- both between the parties and amongst this en banc court -- centers around whether the district court correctly found that the DOC's proffered regimen of care was inadequate, and that sex reassignment surgery is the only appropriate treatment for Kosilek. Based on the record, a nd when one employs the proper standard of review, that conclusion was generously supported by the evidence.
A. Dr. Schmidt's Prudence To start, despite the majority's qualms, the district court's conclusion that the DOC's expert, Dr. Chester Schmidt, was not a prudent professional was not clearly erroneous. In his testimony, Dr. Schmidt expressed a good deal of disagreement with the Harry Benjamin Standards of Care, which were widely relied upon by the other medical providers who testified below and which have been generally accepted by courts. Se,e e.g., De'Lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (describing the Standards of
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Care as "the generally accepted protocols for the treatment of

GID"); Soneeya v. Spencer, 851 F. Supp. 2d 228, 231 (D. Mass. 2012)

(noting that the "course of treatment for Gender Identity Disorder

generally followed in the community is governed by the 'Standards

of Care'"); O'Donnabhain v. Comm'r of Internal Revenue , 134 T.C.

34, 65 (U.S. Tax Ct. 2010) (indicating that the Standards are

"widely accepted in the psychiatric profession, as evidenced by the

recognition of the standards' triadic therapy sequence as the

appropriate treatment for GID and transsexualism in numerous

psychiatric and medical reference texts").

While, as the majority notes, the Standards of Care have

a built-in flexibility, that pliancy appears to stem from the

uniqueness of patient needs and the evolution of the gender

identity disorder field. 25 Dr. Schmidt's departure from the

Standards appeared more fundamental. For instance, the Standards

of Care explained that sex reassignment surgery is not

"experimental, investigational, elective, cosmetic, or optional in

any meaningful sense." Standards of Care, Version 6, at 18. Dr.

Schmidt disagreed. In his expert report, he wrote that sex

reassignment surgery was a "voluntary,

elective choice[] and

procedure[]," calling the steps towards reassignment "equivalent to

25 The Standards state: "Clinical departures from these guidelines may come about because of a patient's unique anatomic, social, or psychological situation, an experienced professional's evolving method of handling a common situation, or a research protocol." Standards of Care, Version 6, at 2.
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a variety of elective cosmetic non-surgical procedures and elective

cosmetic surgical procedures." Another example: the Standards of

Care provide that, for persons with severe gender identity

disorder, sex reassignment surgery is effective, and when paired

with hormone therapy and a

real-life e xperience, "medically

indicated and medically necessary." Standards of Care, Version 6,

at 18. Dr. Schmidt again was not on board. He testified that

generally he does not believe that sex reassignment surgery is

medically necessary and his practice manifests this philosophy. In

the approximately 300 patients he had evaluated, Dr. Schmidt never

recalled seeing even one case of gender identity disorder serious

enough to warrant surgery.26

For Dr. Schmidt, there was an additional wrinkle. In Dr.

Schmidt's opinion, a real-life experience living as the opposite

gender could not be effectively replicated in prison, and this

counseled against surgery for Kosilek. The district court found

that this viewpoint was not prudent. The majority claims that in

doing so the court "relied on its own -- non-medical -- judgment

26 The majority makes much of the district judge faulting Dr. Schmidt for not writing letters of recommendation for patients seeking sex reassignment surgery, suggesting that the judge did not appreciate the nuance between opening the door for surgery and advocating for it. I suspect the judge was more broadly concerned with the fact that Dr. Schmidt did not think sex reassignment was ever medically necessary, nor had he ever seen a case where it was warranted. And despite having this strident perspective, Dr. Schmidt nonetheless opened the door for patients to undergo this major medical procedure.
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about what constitutes a real-life exper ience." This is not accurate.
The court based its determination, back in Kosilek I, on the testimony of Dr. Marshall Forstein and Dr. George Brown, who "convincingly testified [that] Kosilek's 'real life' is prison." Kosilek v. Maloney, 221 F. Supp. 2d 156, 167 (D. Mass. 2002). Then in Kosilek II , the court found the "credible evidence in the instant case confirmed the conclusion in Kosilek I that a person can have a 'real life experience' in prison." Kosilek v. Spencer, 889 F. Supp. 2d 190, 232 (D. Mass. 2012). Evidence before the court in Kosilek II included an expert report from Dr. Forstein, and testimony from Dr. Randi Kaufman, both of whom indicated that Kosilek had undergone a real-life experience in prison. There was also the February 24, 2005 report from the Fenway doctors, Dr. Kevin Kapila and Dr. Kaufman, which explained that Kosilek had moved successfully through the steps outlined by the Standards of Care. Then, in their October 7, 2005 report, the Fenway doctors explained at length why Cynthia Osborne's review subtly distorted the concept of the real-life experience, and why Kosilek had completed the real-life test -- a test made even more stringent by the fact that she was living as a female in an all-male prison. Dr. Brown echoed a similar sentiment. He testified that Kosilek had not only met the minimum real-life experience but had exceeded it. Dr. Brown focused on the significant amount of information
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that existed regarding Kosilek's time in prison, a record that his
patients in the outside world would never have.27
The record is clear. The district court's determination
that Dr. Schmidt's viewpoint about the feasibility of a real-life
experience in prison was not based on the judge's own lay opinion.
It was, as the district court alluded to, grounded in a significant
amount of evidence offered by competent medical professionals, all
of whom disagreed with Dr. Schmidt.28
The same can be said about what course of treatment was
appropriate for Kosilek. Dr. Schmidt testified that Kosilek had
"made an excellent adaptation" on her current treatment regimen and
that surgery would not "confer any additional functional
capability." Surgery was not, according to Dr. Schmidt, medically
necessary for Kosilek. To minimize the risk of future harm to
27 The majority mentions that none of the experts who opined that Kosilek completed a real-life experience considered that she might be housed in a female facility post-surgery. This is hardly surprising as this is a theory of my colleagues' own making. The DOC never made any argument that a potential post-surgery housing change rendered Kosilek unable to complete the real-life experience, nor did any provider opine that it was even a consideration.
28 The Seventh Version of the Standards of Care came out in 2011. Notably it contains a new section devoted to scenar ios where persons with gender identity disorder are living in institutional environments such as prisons or long-term care facilities. Standards of Care, Version 7, at 67. It provides that those individuals' health care "should mirror that which would be available to them if they were living in a non-institutional setting" and that "[a]ll elements of assessment and treatment as described in the [Standards of Care] can be provided to people living in institutions." Id.
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Kosilek, Dr. Schmidt thought employing psychotherapy and medication
to reduce her dysphoria and, if needed, placing Kosilek in a
medical facility would be effective. A majority of the testifying
medical providers said otherwise though. When asked what they
thought about Dr. Schmidt's sugg ested regimen, Drs. Kapila, Kaufman, Appelbaum, and Forstein all thought it unreasonable29. The
common thinking was that Dr. Schmidt's approach was not likely to
effectively reduce Kosilek's risk of self harm, given that the
source of her dysphoria was her male genitalia.
In the Eighth Amendment context, the adequacy of medical
care is "measured against 'prudent professional standards.'" Nunes
v. Mass. Dept. of Corr., 766 F.3d 136, 142 (1st Cir. 2014) (quoting
DeCologero, 821 F.2d at 43). The district court here concluded
that Dr. Schmidt was not a prudent professional. Given the above,
I am not convinced that this determination was clearly erroneous.
Dr. Schmidt's significant disagreement with widely accepted
guidelines and the sharp contrast between his and the other well-
credentialed providers' opinions, offer strong support for the
court's finding.
29 Court-appointed expert, Dr. Stephen Levine, ultimately testified that from a purely medical perspective (absent considerations relative to the prison environment), a prudent professional would not deny Kosilek sex reassignment surgery. However, Dr. Levine initially opined that Dr. Schmidt's view was reasonable (if not popular), a discrepancy that apparently arose from Dr. Levine disregarding the district court's order to treat Kosilek as a patient in free society. Considering this incongruity, I do not list Dr. Levine as one of Dr. Schmidt's critics.
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B. Adequacy of the DOC's Treatment

In light of the court's determination as to Dr. Schmidt's

prudence, the question remains whether the evidence supported its

conclusion that the DOC's treatment was not medically adequate.

The majority's consi deration of this issue begins with a faulty

premise. It states that the "district court held that

psychotherapy and antidepressants alone would not adequately treat

Koslilek's GID," a finding the majority calls an incorrect

characterization of the issues, and a minimization of the DOC's

proffered treatment plan. It is the majority who is wrong.

The district court was of course well aware that the DOC

was suggesting a more comprehensive treatment plan beyond therapy

and medication. Nonetheless, as it repeatedly explained, it found

that all treatment other than sex reassignment surgery was

inadequate for Kosilek. See , e.g. , Kosilek , 889 F. Supp. 2d at

202, 233, 236, 238, 240. This included the DOC's past treatment,

as well as its intended treatment going forward. In other words,

the court did not minimize the DOC's

regimen. Based on the

testimony and evidence presented, it simply found the regimen did

not, and would not going forward, adequately treat Kosilek's gender

identity disorder. This finding was well within the court's

purview to make. The fact that the DOC fashioned some treatment,

in the form of hormone therapy, electrolysis, and access to

feminine items does not insulate it from liability. In De'Lontav.

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Johnson, the Fourth Circuit Court of Appeals found that an inmate, who sought sex reassignment surgery after her gender identity disorder failed to resolve despite receiving hormones, stated a plausible deliberate indifference claim. 708 F.3d at 522, 525. The court concluded that, though the Virginia Department of Corrections had provided the inmate with hormone therapy and psychological counseling consistent with the Standards of Care, "it does not follow that they have necessarily provided her with constitutionally adequate treatment." Id. at 522, 526 (emphasis in original).
The majority nonetheless would have us believe the care provided by the DOC can withstand constitutional scrutiny. It endeavors to convince by giving little weight to the attested to shortcomings in Kosilek's treatment plan, and instead focusing heavily on the improvement Kosilek has made since being provided hormones, electrolysis, feminine garb and gear, and mental health treatment. This is not in dispute; Kosilek has indeed progressed. However, despite the short shrift the majority pays it, there was ample evidence supporting the district court's conclusion that this improvement was not sufficient to ease Kosilek's suffering to a point where she was no longer facing a life-threatening risk of harm.
Though the DOC has been treating Kosilek for many years, the district court found that she "continues to suffer intense
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mental anguish." Kosilek , 889 F. Supp. 2d at 202. The court chronicled the evidence: Kosilek's own testimony about her continued distress,30 the Fenway Center report indicating Kosilek's ongoing angst over her male genitalia and the high likelihood of another suicide attempt, and the along-the-same-lines testimony of Kosilek's treating psychologist, Mark Burrowes. See id. at 226. There was also Dr. Kaufman's testimony that, even with the treatment the DOC provided, Kosilek still suffered from clinically significant distress and severe dysphoria, a fact she found "quite notable." Dr. Brown testified similarly, explaining that Kosilek's treatment to date, including the hormones, had not obviated her need for surgery. Further, there was evidence that Kosilek's improvement was tangled up in her continuing hope that sex reassignment surgery would be provided. Dr. Brown testified: "And without that hope, the [DOC's] treatments are -- I wouldn't say for naught, but they are not going to continue her level of improvement where she is now."
Thus, even with Kosilek's documented improvement, Drs. Brown, Kaufman, Forstein, Kapila, and Appelbaum all testified unequivocally that sex reassignment surgery was medically necessary and the only appropriate treatment for Kosilek. They further

30 The court found Kosilek testified credibly that although hormone

treatments had helped, she was distressed by her male genitalia and

believed that she

needed surgery. Antidepressants and

psychotherapy, according to Kosilek, would not alter the fact that

she did not want to continue living with her male genitalia.

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agreed that there was a serious risk of harm, most likely suicide, should Kosilek not receive the surgery, which was a concern the Fenway doctors voiced as early as 2005. As the majority says, this potentiality matters because the Eighth Amendment's protections extend beyond present suffering to future harm. See Helling v. McKinney, 509 U.S. 25, 33-34 (1993); Leavitt, 645 F.3d at 501.
The DOC's assertion that this future risk could be curbed with medication and psychotherapy cannot carry the day. As the district court found, treating the underlying disorder and its symptoms are two very different things, a distinction also drawn by the Seventh Circuit. See Fields v. Smith, 653 F.3d 550 (7th Cir. 2011). In Fields , the court found a Wisconsin statute that prohibited the state's correctional department from providing transgender inmates with hormones and sex reassignment surgery unconstitutional. Id. at 552-53, 559. The court, discussing how some patients require hormone therapy, found the department of corrections had not effectively rebutted the evidence that an offering of medication and psychotherapy would "do nothing to treat the underlying disorder." Id. at 556. In the instant matter, Drs. Appelbaum and Kapila testified that the preferred approach is to treat the underlying problem -- Kosilek's gender identity disorder -- as opposed to the symptoms it might produce. As chronicled above, the consensus was that the only way to adequately treat that problem was with sex reassignment surgery.
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Lest we forget, the procedural posture of this case bears another mention. The DOC is challenging the district court's grant of injunctive relief following a bench trial, meaning that due regard is paid to the judge's factual findings and credibility determinations. See Monahan, 625 F.3d at 46. When the evidence yields competing inferences or two permissible views, we cannot second guess, "even if, had we been sitting as triers of the facts, we might have arrived at a different set of judgments." N. Ins. Co. of N.Y. v. Point Judith Marina, LLC, 579 F.3d 61, 67 (1st Cir. 2009). Here the judge concluded that the DOC's present treatment regimen, with the added medication and therapy to cushion the postsurgery-denial fallout, would not reduce Kosilek's suffering to the point where she did not have a major medical need. Rather, sex reassignment surgery was the only adequate treatment for Kosilek's life-threatening disorder. As detailed above, these findings were supported by the un-objected to testimony of multiple eminently qualified doctors, by widely accepted, published standards, and by the testimony of Kosilek herself. The factfinder found this evidence convincing; he found the DOC's evidentiary offering less so. It is not for us to re-weigh the evidence and second-guess this determination, but that is exactly what the majority does.
What's more, by upholding the adequacy of the DOC's course of treatment, the majority in essence creates a de facto ban on sex reassignment surgery for inmates in this circuit. Its
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attempt to repudiate this notion is not compelling. For instance, the fact that the DOC has "disclaimed any attempt to create a blanket policy regarding SRS" is a non-starter. The issue is not whether correctional departments will voluntarily provide the surgery, it is whether the precedent set by this court today will preclude inmates from ever being able to mount a successful Eighth Amendment claim for sex reassignment surgery in the courts. Equally unconvincing is the majority's assertion that the "unique circumstances" presented by Kosilek's case will prevent any de facto ban. The first so-called anomaly cited by the majority -the divergence of opinion as to Kosilek's need for surgery -- only resulted from the DOC disregarding the advice of Kosilek's treating doctors and bringing in a predictable opponent to sex reassignment surgery. It is no stretch to imagine another department of corrections stealing a page from this play book, i.e., just bring in someone akin to Osborne. It is hardly a matchless scenario. The same goes for Kosilek's criminal history and post-surgical housing options, which the majority also points to. Rare will be the prisoner who does not pose some type of security concern, or harbor some potential for causing climate unrest. So the question remains, if Kosilek -- who was time and again diagnosed as suffering from severe gender identity disorder, and who was uniformly thought by qualified medical professionals to require
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surgery -- is not an appropriate candidate for surgery, what inmate is?
In sum, the majority's conclusion that the district court wrongly found that Kosilek satisfied the objective component of the Eighth Amendment inquiry is, in my opinion, flatly incorrect. I am no more convinced by the majority's examination of the subjective component.
IV. Eighth Amendment: Subjective Prong A satisfied subjective prong means that prison officials had "a sufficiently culpable state of mind" in that they showed deliberate indifference to an inmate's health and safety. Farmer, 511 U.S. at 834; Leavitt, 645 F.3d at 497. The officials were both "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists" and they drew that inference. Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007). The majority posits that the DOC, because it was faced with conflicting medical opinions about what treatment was appropriate for Kosilek, and because it proffered reasonable security concerns, was not deliberately indifferent to Kosilek's risk for serious harm. Both theories fail to convince.
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A. Conflicting Medical Opinions The idea that incompatible medical opinions serve to insulate the DOC from a deliberate indifference finding is a concept not advanced by the DOC, which rests on several faulty propositions and has very problematic implications. The majority concedes that the DOC never made this particular argument, but charitably claims it is not waived because "[t]he DOC's contention that the district court erred in deeming SRS medically necessary and in rejecting Dr. Schmidt's approach as imprudent necessarily entails the DOC's subjective belief that SRS was unnecessary."31 This is a stretch. An argument advanced on appeal years after surgery was denied is not the equivalent of the DOC's subjective belief that sex reassignment surgery was unnecessary when it denied it. Moreover, the mere existence of contradictory medical opinions does not necessarily mean that the DOC did not deny Kosilek surgery for purely pretextual reasons. It is certainly conceivable that a correctional department could seize on an opinion from a medical provider, whether or not it found it compelling, as a means to justify denying treatment.
31 When the DOC first informed the district court that it would not be providing Kosilek with surgery (back in June 2005 under Dennehy's watch), Dr. Schmidt had not even evaluated Kosilek let alone communicated his findings. At the time, the DOC was only armed with the report of Cynthia Osborne who had not met with Kosilek but rather had simply peer reviewed the Fenway Report.
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Another even more serious flaw in the majority's theory is that it is contradicted by the evidence. Commissioner Dennehy testified multiple times, and submitted a report to the same effect, that it was security concerns that motivated her decision to deny Kosilek surgery. During Dennehy's first round of testimony, when she was still claiming ignorance about whether UMass (the DOC's contracted health-services provider) was recommending surgery, she testified that based "strictly [on] safety and security concerns" she would still veto the surgery even if UMass told her that it was medically nece ssary. Then, once UMass's position that surgery was medically necessary became pellucid to Dennehy, she submitted a report to the court indicating that she was standing firm in her decision to deny surgery based on "alarming and substantial" safety and security concerns. Her final time on the stand, Dennehy testified that the only thing, in her view, preventing surgery for Kosilek was safety and security concerns; absent such concerns, Dennehy would have no reason to interfere with any medical order for treatment.
The evidence with regard to Commissioner Clarke's stance on the issue was similar. In his report to the court, Clarke disclaimed any ability to render an opinion on the validity of the medical opinions expressed at trial, and went on to explain his view that "the safety and security concerns presented by the prospect of undertaking sex reassignment surgery for Michelle
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Kosilek are insurmountable." Clarke then hammered home his security concerns on the stand. Therefore, even though there was contradictory opinions on whether surgery was medically necessary for Kosilek, both Dennehy's and Clarke's decision to deny the procedure was, as they put it, based solely on security concerns.
The majority's presumption that the existence of varying medical opinions should insulate the DOC is not only an unpreserved, unsupported argument but it has very troubling implications. It gives correctional departments serious leeway with the Eighth Amendment. If they do not want to provide a prisoner with care recommended by one or more than one medical provider, they need only find a doctor with a differing mind set (typically not a difficult task). It is no stretch to think that might be what happened here. The DOC had the treatment recommendation of Drs. Kaufman and Kapila, a local psychiatrist and psychologist who had evaluated Kosilek. The doctors themselves were recommended by the DOC's own medical provider, UMass. Yet the DOC took the unusual step of having the Fenway doctors' recommendation peer reviewed by Cynthia Osborne, an out-of-state social worker with a known opinion about sex reassignment surgery. It seems highly unlikely that the DOC was simply looking for a more complete picture of Kosilek's treatment options, and that Osborne's predictable opposition to Kosilek being provided with surgery was a non-factor. The DOC knew that Osborne was working with the
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Virginia and Wisconsin departments of corrections to help defend
lawsuits filed by transgender prisoners, and internal DOC meeting
minutes noted that Osborne "may do more objective evaluations" and
was "[m]ore sympathetic to DOC position." Predictably, Osborne was
one-hundred percent sympathetic.
B. Security Concerns
There is no dispute that "security considerations . . .
matter at prisons," leaving "ample room for professional judgment."
Battista v. Clarke, 645 F.3d 449, 453, 454 (1st Cir. 2011). "Any
professional judgment that decides an issue involving conditions of
confinement must embrace security and administration and not merely
medical judgments." Id. at 455 (quoting Cameron v. Tomes, 900 F.2d
14, 20 (1st Cir. 1993) (emphasis in original)). But it is also
true that at some point a defendant forfeits the advantage of
deference, for instance following a "pattern of delays, new
objections substituted for old ones, misinformation and other negatives."32 Id. The district court determined that the DOC had
done just this, causing undue delay in Kosilek's treatment regimen,
32 The pattern in Battista -- a case in which a transgender inmate sued the Massachusetts DOC for failing to provide doctorrecommended hormones -- included an initial failure to take the inmate's diagnosis and hormone request seriously, the years it took for a solid security justification to be made, and the DOC's claim that withholding hormones or placing the inmate in severely constraining protective custody were the only two options. In other words, there are some marked similarities between that case and this one. That is, apart from their outcomes. In Battista , this court affirmed the district court's deliberate indifference determination.
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manufacturing security concerns, and orchestrating a half-hearted

security review. The record amply supported these conclusions, yet

the majority too easily discounts them, especially given the

deferential look this issue warrants. Se,e e.g., Torraco, 923 F.2d

at 234 (explaining that deliberate indifference is usually a jury

question); Monahan, 625 F.3d at 46 (providing that due regard is

given to credibility calls); Fed. Refinance Co., 352 F.3d at 27-28

(noting that a clear error look makes sense when there are

questions of motive and intent).

Of course, it has been many years since medical providers

began considering the propriety of surgery for Kosilek. Back

during Kosilek I, Dr. Forstein recommended that Kosilek be allowed

to consult with a surgeon who specialized in sex reassignment

surgery. Then in 2003, Dr. Seil said Kosilek should be allowed to

meet with a specialist after a year on hormones. But right when

she started as commissioner, Dennehy made a curious move. She

reassessed the care being provided to all inmates suffering from

gender identity disorder, despite the DOC's contract with UMass

placing that medical care squarely in UMass's purview. Then once

the Fenway doctors opined in 2005 that Kosilek should be allowed to

have surgery, the DOC frittered away

time claiming not to

understand that UMass recommended surgery for Kosilek. The

majority does not quibble with the court's finding that the DOC

prevaricated in this respect because it "does not undercut the

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consistency with which they identified safety and security concerns." This misses the point. To establish a subjective intent, "it is enough for the prisoner to show a wanton disregard sufficiently evidenced 'by denial, delay, or interference with prescribed health care.'" Battista , 645 F.3d at 453 (quoting DesRosiers, 949 F.2d at 19); see also Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (A "deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians."). That is precisely what the district court found happened here, and the evidentiary support for this determination is in the record.
The same goes for the court's conclusion that the DOC's security reviews were rushed and results-driven. Dennehy told a news outlet that the DOC would deny Kosilek's request for surgery despite only having "generalized discussions" and phone calls with the relevant players; she had not yet received written reports or convened a formal security meeting. When the DOC did meet, there was just a week left before its court-ordered security report was due -- a report that was then penned predominantly by trial counsel and reviewed by Dennehy only a day or two before its filing. Once trial was underway, the hurriedness continued. A mere nine days before expert disclosures were due, Dennehy contacted the director of the Federal Bureau of Prisons looking for a security expert. And the experts the DOC ultimately did present at trial seemed ill
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prepared, failing to take into account important details about Kosilek's medical and disciplinary history.
For the district court, another reason not to esteem the DOC's proffered security concerns was the fact that they were "largely false" and "greatly exaggerated." This finding is not clearly erroneous. Yet the majority easily dismisses it, in part by limiting its focus to what it presumably perceives as the DOC's more valid security concerns -- where to house Kosilek postoperatively and the deterrence of false suicide threats by inmates. The majority is conveniently forgetting the throw-it-up-and-seewhat-sticks approach taken by the DOC below. It was this approach, in part, that led the court to question whether the DOC could be trusted to give an accurate picture of security concerns consequent to surgery.
For instance, the DOC repeatedly claimed that transporting Kosilek to surgery out of state would pose an insurmountable security risk. It is hardly surprising the district court thought this was an embellished concern. Kosilek had been transported to multiple doctor's appointments without issue, and it is illogical to think Kosilek would attempt to flee en route to the surgery she has dedicated decades of her life to obtaining. Also eminently unlikely is that during the transport home from highly invasive surgery, a sixty-five-year-old, recovering Kosilek would be able to escape the grasp of DOC personnel. Even Clarke thought
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it near certain that Kosilek could safely be transported to and from surgery.
With regard to housing Kosilek in a female prison, the DOC painted Kosilek as a highly-polarizing escape risk who could not possibly safely reside in MCI-Framingham's general population. It pointed to the comparatively weaker perimeter of MCI-Framingham, alleging that Kosilek's superior male strength and life sentence made her a flight risk. One can easily see why the district court was not buying this. Kosilek was advanced in age, physically slight, had taken female hormones for years, and had an excellent disciplinary record. And MCI-Framingham successfully housed approximately forty life offenders. The court also had reason to be skeptical of the DOC's adamant contention that Kosilek would cause inmate climate issues at MCI-Framingham due to the fact that she murdered her wife. Undoubtedly inmates find other inmates offensive for a plethora of reasons, such as, race, religion, gang affiliation, sexual orientation, or the crime committed. Prisons deal with these situations on a routine basis and the evidence established that MCI-Framingham had procedures in place to do just that.
The DOC even admitted at oral argument that had a postoperative, transgender person out in free society committed murder, the DOC would have to figure out where to house that person. The DOC; however, did not think this a particularly important point,
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protesting that Kosilek presents unique concerns that separate her from this hypothetical inmate. I am unmoved. The fact that Kosilek's crime was one of violence against a woman could equally apply to another potential inmate. And the fact that Kosilek gained notoriety by litigating against the DOC all these years -in other words, successfully pursuing her constitutional right to adequate medical care -- hardly seems a compelling consideration.
For the district court, also blunting the DOC's fervent cries of overwhelming security concerns were the alternatives to placing Kosilek in the general population of a Massachusetts prison. There was the option of transferring Kosilek to an out-ofstate prison (though this scenario appears to have been left largely unexplored by the DOC). In fact, the evidence established that Clarke's former employer, the Washington Department of Corrections, housed a post-operative female transgender inmate, also serving a life sentence for murdering a female relative, without security or climate issues. The inmate's housing was so unremarkable that Clarke was not even aware of it during his tenure in Washington. Further, there was evidence that Kosilek's safety could be ensured by placing her in a segregated housing unit.
The DOC's past conduct was also relevant to the district court's credibility assessment. In connection with Kosilek ,I then Commissioner Michael Maloney hammered the serious security concerns surrounding Kosilek remaining at MCI-Norfolk while receiving
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hormones, theorizing that an inmate living as a female (with female attributes) among sex offenders would create a risk of violence. However, once the DOC actually stopped to conduct a security review, it determined there were no current security concerns with Kosilek being provided estrogen therapy. Indeed no security issues ever arose. Kosilek has been safely housed at MCI-Norfolk for many years presenting herself as female. The DOC's reversal on this issue calls into question its stance before this court about the non-feasibility of housing a post-surgical Kosilek at MCI-Norfolk.
The DOC also expressed concern that providing Kosilek with surgery would encourage inmates to utilize suicide threats to receive a desired benefit, and the majority deems this concern reasonable. I am not convinced, and neither was the district court. Not only is there absolutely no evidence that Kosilek is trying to game the system, but the DOC, as it emphasized at trial, employs mental health professionals and has policies in place to deal with suicidality. Presumably, these tools can be used by the DOC to assess whether an inmate's particular suicide threat is manufactured or real, and it can be dealt with accordingly. That the DOC does not want to be inundated with a hypothetical influx of false suicide threats hardly seems a valid reason to deny a prisoner care deemed medically necessary.
For the district court, the public and political disapproval of Kosilek's surgical pursuit was another factor. It
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did not believe Dennehy's and Clarke's claims that the avoidance of
controversy played no role in the DOC's decision to deny surgery.
The majority concedes that it must give deference to the court's
finding that Dennehy's motivations were colored by public pressure
and so, instead, the majority hypes up the role of Commissioner
Clarke by characterizing him as the ultimate decision maker. I see
a few flaws with the majority's reasoning.
For one, the majority says the district court improperly
imputed Dennehy's motivations to Clarke, thus ignoring the
injunctive-relief requirement that it take into account the DOC's then present-day stance. 33 See Farmer , 511 U.S. at 845 (quoting
Helling, 509 U.S. at 36) (The court considers deliberate
indifference "'in light of the prison authorities' current
attitudes and conduct,' . . . their attitudes and conduct at the
time suit is brought and persisting thereafter."). The majority
has it wrong. The court took testimony from Clarke, reviewed his
written report, and spoke extensively in its decision about why it
was not convinced that Clarke denied Kosilek surgery based on
33 While a defendant's attitudes and conduct at the time a decision is rendered are relevant, what motivates the DOC today is not. This fact may be less than clear given the majority's reference to the DOC's present stance ("proof that the DOC remains motivated by pretextual or improper concerns") and the fact that Dennehy is now seven years removed from the decision-making process. To be clear, we are reviewing the district court's decision that the DOC, through Dennehy and Clarke, denied Kosilek surgery based on pretextual reasons. Indeed it would be an amazing feat of prescience for the district court to anticipate what the DOC's viewpoint would be two years after penning its decision.
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legitimate penological concerns. Of note, it was Kosilek who sought to have Clarke inform the court of his position, and the DOC, which stipulated at trial that Dennehy was the operative decision maker, actually objected to Clarke even testifying as he was simply "maintain[ing] the position set forth by the DOC through former Commissioner Dennehy."
Furthermore, though the majority defers to the court's take on Dennehy, it refuses to do so for Clarke, cla iming that "Clarke was never found by the court to be non-credible." This is not entirely accurate. Clearly the import of the court's conclusion that Clarke's articulated security concerns were either false or exaggerated as a pretext to deny surgery means that the court did not think Clarke a completely credible witness. See Kosilek, 889 F. Supp. 2d at 241 ("[T]he purported security considerations that Dennehy and Clarke claim motivated their decisions to deny Kosilek sex reassignment surgery are largely false and any possible genuine concerns have been greatly exaggerated to provide a pretext for denying the prescribed treatment.") In fact, the court specifically found certain claims made by Clarke not to be credible. See id. at 244 (finding that "neither Dennehy nor Clarke has provided a credible explanation for their purported belief that if Kosilek's genitalia are altered the risk to him and others at MCI Norfolk will be materially magnified" and "[t]he claims of Dennehy and Clarke that they have denied sex
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reassignment surgery for Kosilek in part because MCI Framingham is not sufficiently secure to prevent an escape by Kosilek, who has never attempted to flee, are not credible.") Therefore, as it did with Dennehy, the majority should be giving due regard to the court's conclusion that Clarke was not believable.
The majority also misses the mark with its contention that the "only evidence" tending to show Clarke may have considered public and political criticism were the two letters from the unhappy Massachusetts legislators. This is not the whole picture. In addition to the letters, what convinced the court that Clarke was improperly motiv ated was his advancing inflated security concerns following a hasty review, suggesting that he did not operate with an open mind. Having already detailed the evidence supporting the court's distrust of the DOC's proffered security concerns, I will not rehash.
As for the thoroughness of Clarke's review, the court criticized Clarke for not consulting with Luis Spencer, who was Superintendent of MCI-Norfolk at the time, and for not reviewing the DOC's security-expert trial testimony, prior to deciding whether to deny surgery. The DOC counters that Clarke, pursuant to the court's order, was not required to do either of those things. It is both conceivable that Clarke's review was too cursory, or that he felt constrained by the court's order, though the fact that Clarke did not know significant details such as Kosilek's age and
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excellent disciplinary record favors the former possibility. Either way, both views are permissible, which means that the district court's choice of one of them cannot be clearly erroneous. See Monahan , 625 F.3d at 46. Nor is it appropriate for us to second-guess the court's tenable perception of Clarke's motivations, as deference extends to "inferences drawn from the underlying facts, and if the trial court's reading of the record [with respect to an actor's motivation] is plausible, appellate review is at an end." Janeiro , 457 F.3d at 138-39 (internal quotation marks omitted) (alteration in original).
Ultimately, there was adequate evidentiary support for the court's determination that the DOC was deliberately indifferent. The court did not obviously err in concluding the DOC delayed implementing medical treatment recommended by its own providers, sought out a more favorable medical opinion, engaged in a hasty, result-driven security review, offered a host of poorly thought out security concerns, and then denied surgery based not on any legitimate penological concerns but on a fear of controversy. Whether I, or any of my colleag ues, would have drawn these same conclusions had we been presiding over this trial is irrelevant; our review is circumscribed. It is enough that the district court had a reasonable basis for its judgment. The district court's determination that the Eighth Amendment's subjective prong was satisfied should stand.
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V. Conclusion I am confident that I would not need to pen this dissent, over twenty years after Kosilek's quest for constitutionally adequate medical care began, were she not seeking a treatment that many see as strange or immoral. Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction. Whether today's decision brings this case to a close, I cannot say. But I am confident that this decision will not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson, 163 U.S. 537 (1896), deeming constitutional state laws requiring racial segregation, and Korematsu v. United States, 323 U.S. 214 (1944), finding constitutional the internment of JapaneseAmericans in camps during World War II. I only hope that day is not far in the future, for the precedent the m ajority creates is damaging. It paves the way for unprincipled grants of en banc relief, decimates the deference paid to a trial judge following a bench trial, aggrieves an already marginalized community, and enables correctional systems to further postpone their adjustment to the crumbling gender binary. I respectfully dissent.
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KAYATTA, Circuit Judge , dissenting. Reading the majority's lengthy and oft-revisited discussion of the applicable standard of review, one would think that this case posed issues of law or application of law to fact. This is plainly not so.
There is not a comma, much less a word, of the applicable law that the district court did not expressly and correctly explain and apply. All the parties and all the judges in this case, including the trial judge, agree on the controlling principles of law, long ago established by the Supreme Court. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987). Under that law, a prison must supply medical care to its prisoners "at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards." DeCologero, 821 F.2d at 43. The failure to provide such care, moreover, does not constitute an Eighth Amendment viol ation unless it rises to the level of "deliberate indifference" to a "serious medical need." "Deliberate indifference" means that the prison official "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. A "serious medical need" is defined as, among other things, "one that has been diagnosed by a physician as mandating treatment." Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990).
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Our decision in this case therefore necessarily turns on the facts themselves. And we begin our review knowing that Kosilek does indeed have a serious medical need, and the prison's own doctors, as well as the specialists retained by those doctors, informed DOC that treatment of Kosilek's medical condition in accordance with prudent professional standards requires sex reassignment surgery (SRS). 34 That leaves only two factual questions: (1) Are the DOC's doctors correct that SRS is the only treatment for Kosilek's condition that is commensurate with modern medical science as practiced by prudent professionals3;5 and, if so, (2) Did prison officials nevertheless deny that treatment not because they disbelieved their own doctors, and not because of prison security considerations, but rather simply because they feared public ridicule. If the answer to each of these two questions is "yes," Kosilek should win. Otherwise, she loses.
Were I the trial judge charged with answering these two factual questions based solely on the written record, I would likely find against Kosilek on the first question for the reasons stated by the trial court's appointed independent expert, Dr. Levine. In a nutshell, Dr. Levine, who participated in drafting
34 None of these witnesses face challenge on the grounds that their opinions are outside the bounds of accepted science. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-90 (1993). 35 In the majority's words, "whether SRS is a medically necessary component of Kosilek's care, such that any course of treatment not including surgery is constitutionally inadequate." Slip Op. at 46.
-114-

the Standards of Care, provided carefully nuanced and persuasive testimony that medical science has not reached a wide, scientifically driven consensus mandating SRS as the only acceptable treatment for an incarcerated individual with gender dysphoria. But I am not the trial judge in this case. Nor are my colleagues. And that is the rub.
The experienced jurist who was the trial judge in this case, and who actually sat and listened to the live testimony, found as a matter of fact that:
(1) Commensurate with modern medical science, no prudent professional would recommend any treatment for Kosilek other than SRS; and
(2) Prison officials nevertheless denied the treatment not because they rejected the accuracy of the medical advice tendered by their own doctors, and not because of security issues, but rather because they feared public ridicule. Their reasons for denying the necessary treatment were thus in bad faith.
The majority never explains why these two findings are not pure findings of fact, and are not therefore subject solely to review for clear error. Nor can it. After all, we are talking about, first, what the medical--not legal--standard of care is for a particular affliction, and second, whether Dennehy and Clarke were truthful in describing their security objections, such as their claim that they feared that Kosilek, after trying to get this
-115-

surgery for twenty years, would escape on the way to the operating room or, fresh from the surgeon's knife, overpower her guards and run away. Let me be plain on this point: Until today, there was absolutely no precedent (and the majority cites none) for reviewing such quintessentially factual findings under anything other than the clear error test.
As Judge Thompson carefully explains, there is a considerable amount of evidence that directly supports the trial court's findings on these two points, depending on which witnesses one believes. I write separately only to stress that even if one agrees with the majority that the district court got the factfinding wrong, we should defer unless the result is clearly erroneous. Of course, deferring to the trial judge's fact-finding happens to produce a result in this case that some of us find surprising, and much of the public likely finds shocking. Scientific knowledge advances quickly and without regard to settled norms and arrangements. It sometimes draws in its wake a reluctant community, unnerved by notions that challenge our views of who we are and how we fit in the universe. The notion that hard-wired aspects of gender may not unerringly and inexorably correspond to physical anatomy is especially unnerving for many.
The solution, I think, is to trust our trial judges to resolve these factual issues when the evidence supports a finding either way. Some will get it wrong; most will get it right. The
-116-

arc of decision-making, over time, will bend towards the latter.

For each instance of error in fact-finding, such as possibly this

case itself, $25,000 or so may be lost. But doctors and lawyers

will refine their presentations and other trial judges will make

their own findings, not bound in any way by the fact-finding in

this case.

Instead, by deciding the facts in this case as an

appellate court essentially finding law, the majority ends any

search for the truth through continued examination of the medical

evidence by the trial courts. It locks in an answer that binds all

trial courts in the circuit: no prison may be required to provide

SRS to a prisoner who suffers from gender dysphoria as long as a

prison official calls up Ms. Osborne or Dr. Schmidt.

36

Acknowledging that the majority may well be correct on the facts,

I nevertheless decline the invitation to join the majority in

embracing the authority to decide the facts. I suspect that our

court will devote some effort in the coming years to distinguishing

this case, and eventually reducing it to a one-off reserved only

for transgender prisoners.

36 No prisoner is likely to have a more favorable record than Kosilek.
-117-

 
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 Case: 12-2C1a9s4e 1:0D0o-ccuvm-1e2n4t5: 51-0M1LWPaDgoec:u1menDt 6a9te2 FiFleilde:d0055/1/084/2/10515 PagEen1tryofID1: 5908463

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

May 4, 2015

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the First Circuit United States Courthouse 1 Courthouse Way Boston, MA 02210

Re: Michelle Kosilek v. Carol Higgins O'Brien, Commissioner, Massachusetts Department of Correction No. 14-1120 (Your No. 12-2194)

Dear Clerk: The Court today entered the following order in the above-entitled case: The petition for a writ of certiorari is denied.

Sincerely,

Scott S. Harris, Clerk

 
 Case 1:00-cv-12455-MLW Document 693 Filed 06/04/15 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

MICHELLE L. KOSILEK,

)

Plaintiff,

)

)

v.

)

)

THOMAS E. DICKHAUT, in his

)

official capacity as Acting

)

Commissioner of the

)

Massachusetts Department of

)

Correction,

)

Defendant.

)

C.A. No. 00-12455-MLW

MEMORANDUM AND ORDER

WOLF, D.J.

June 4, 2015

On September 4, 2012 this court issued a Memorandum and

Order on Eighth Amendment Claim finding sex reassignment surgery

SRS ( 11

11 }

was

the only adequate

treatment

for plaintiff Michelle

Kosilek•s serious medical need and, therefore, ordered defendant

Commissioner of the Department of Corrections ( 11 DOC 11 ), then Luis

Spencer, to provide it. See Kosilek v. Spencer, 889 F. Supp. 2d

190 (D. Mass. 2012).

On September 4, 2012, the court also issued a Memorandum

and Order Concerning Electrolysis (Docket No. 556). The DOC had

previously ceased providing Kosilek electrolysis to remove his

facial hair. Kosilek alleged in his Second Amended Complaint that electrolysis was medically necessary and, therefore,

required by the Eighth Amendment.

Case 1:00-cv-12455-MLW Document 693 Filed 06/04/15 Page 2 of 4
Despite the fact that the defendant had not responded
properly to the Orders concerning Kosilek 1 s motion for
electrolysis, the court did not decide Kosilek 1 s Eighth
Amendment claim concerning it. It explained that:
[T) he court did not consider or rely upon any of the evidence relating to the dispute regarding electrolysis in reaching its decision concerning sex reassignment surgery because it had not heard any testimony regarding that dispute. Nor is the court now issuing an order concerning electrolysis, in part because the sex reassignment surgery that has been ordered will be a material change in circumstances regarding any arguable serious medical need Kosilek may have for electrolysis.
Mem. & Order Concerning Electrolysis (Docket No. 556} at 2-3.
Therefore, the court ordered that "[t]o the extent that Count 1
of the Second Amended Complaint requests a medical evaluation by
an independent gender identity disorder specialist to determine
whether electrolysis is medically necessary, the request is
DENIED without prejudice." Id., ~3 (emphasis added}.
The decision ordering sex reassignment surgery was
initially affirmed on appeal. See Kosilek v. Spencer, 740 F.3d
733 (1st Cir. 2014} . However, after being reheard en bane, it
was reversed and this court was instructed to dismiss this case.
See Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014} (en bane). In its decision, the majority repeatedly expressed the understanding that Kosilek was being provided electrolysis. See
id. at 86 (emphasis added} (" [T) he DOC argues that its
2

Case 1:00-cv-12455-MLW Document 693 Filed 06/04/15 Page 3 of 4

alternative course of treatment - which provides Kosilek such

alleviative measures as psychotherapy, hormones, electrolysis,

and the provision of female garb and accessories - is sufficient

to treat Kosilek 1 s [gender identity disorder]

. ) ; id. at

89 (emphasis added) ("Beginning in 2003, [the DOC] has provided

hormones I electrolysis 1 feminine clothing and accessories, and mental health services aimed at alleviating [Kosilek 1 s]

distress"); id. at 90 (emphasis added) ( "Kosilek is provided

hormones, facial hair removal, feminine clothing and access to

regular mental health treatment.").

In a May 23, 2014 letter to this court, Kosilek complained

that counsel for the DOC had falsely informed the First Circuit

that Kosilek " 1 continues to receive electrolysis 1 " and " 1 regular

permanent hair removal . 1 " See June 2, 2014 Order (Docket No.

673). An exhibit to that letter indicates that in a footnote to

his en bane reply brief, Kosilek 1 s counsel stated:

[T]he DOC has incorrectly asserted throughout this appeal that Kosilek is continuing to receive hormone therapy and hair removal. She is not. RA 57-59. The DOC stopped providing hair removal after concluding that further removal is not medically necessary for Kosilek. The district court denied without prejudice Kosilek 1 s request in her second amended complaint for an independent evaluation regarding electrolysis. RA 59. While the subject of hair removal is not at issue in this appeal, the DOC should not be credited for treatment that it no longer provides.

3

Case 1:00-cv-12455-MLW Document 693 Filed 06/04/15 Page 4 of 4

Id., Ex. A. In his letter, Kosilek suggested that he might file a new case seeking electrolysis. Id. In the June 2, 2014 Order, this court 11 reminded [Kosilek] that as he is represented by counsel only counsel may communicate with the court on his

behalf. 11

On January 7, 2015, mandate issued. Kosilek•s petition for

review by the Supreme Court was denied on May 4, 2015. See

Kosilek v. O'Brien, No. 14-1120, 575 u.s.

(May 4,

2015) .

This memorandum memorializes the history of the electrolysis

issue, which may be relevant to deciding possible questions of

fact preclusion or issue preclusion if Kosilek files another

case seeking electrolysis. In the context of the foregoing,

this case is hereby

DISMISSED.

CUN>I,T.ED..S.~AT~Es~ DISTRI-C.tT=>JU. DwGE-V~~

4

 
 United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:00-cv-12455-MLW

Kosilek v. Department of Corr, et al

Date Filed: 11/21/2000

Assigned to: Judge Mark L. Wolf

Date Terminated: 03/31/2015

Demand: $0

Jury Demand: Both

Case in other court: First Circuit, 12-02194

Nature of Suit: 550 Prisoner: Civil

Supreme Court of the United States, Rights

14-01120

Jurisdiction: Federal Question

Cause: 42:1983 Prisoner Civil Rights

Plaintiff Michelle Kosilek

represented by Frances S. Cohen Attorney General Government Bureau One Ashburton Place 18th Floor Boston, MA 02109 617-963-2553 Email: frances.cohen@state.ma.us TERMINATED: 08/14/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph L. Sulman Law Office of Joseph L. Sulman, Esq. 185 Devonshire Street, Suite 502 Boston, MA 02110 617-521-8600 Email: jsulman@sulmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Y. Chan Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617-963-2109 Email: christina.chan@state.ma.us TERMINATED: 08/14/2013 ATTORNEY TO BE NOTICED

David I. Brody Law Office of Joseph L. Sulman, Esq. 185 Devonshire Street Suite 502 Boston, MA 02110 617-521-8600 Email: dbrody@sulmanlaw.com ATTORNEY TO BE NOTICED
Jared A. Craft Bingham McCutchen LLP - MA One Federal Street Boston, MA 02110 617-951-8640 Email: jared.craft@bingham.com TERMINATED: 08/14/2013 ATTORNEY TO BE NOTICED

V.
Defendant
Department of Correction for the State of Massachusetts

represented by Joan T. Kennedy Department of Correction Suite 600 70 Franklin Street Suite 600 Boston, MA 02110 617-727-3300 Fax: 617-727-7403 Email: Joan.KennedyConstant@massmail.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard C. McFarland Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617-727-3300 X 132 Fax: 617-727-7403 Email: richard.mcfarland@massmail.state.ma.us

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael T. Maloney TERMINATED: 04/20/2010

represented by Joan T. Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard C. McFarland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
University of Mass. Medical School TERMINATED: 07/01/2005

Defendant
M.D. Arthur K. Brewer TERMINATED: 06/14/2005

represented by David A. Hilton Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617-439-7500 Fax: 617-342-4864 Email: dhilton@morrisonmahoney.com LEAD ATTORNEY
Victoria A. Crawshaw Morrison MahoneyLLP 250 Summer Street Boston, MA 02210 617-439-7546 Fax: 617-342-4955 Email: vcrawshaw@morrisonmahoney.com

Defendant
Harrison O'Connor TERMINATED: 07/01/2005

Defendant
Kenneth Applebaum TERMINATED: 07/01/2005

Defendant
Karen Dewees TERMINATED: 07/17/2001

Defendant
Correctional Medical Systems TERMINATED: 06/14/2005

represented by Bruce R. Henry Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617-439-7500 Fax: 617-342-4851 Email: alkennedy@morrisonmahoney.com TERMINATED: 12/20/2004 LEAD ATTORNEY
David A. Hilton (See above for address) LEAD ATTORNEY
Stephen M. O'Shea Martin, Magnuson, McCarthy and Kenney 101 Merrimac St. Boston, MA 02114 617-227-3240 Fax: 617-227-3346 Email: soshea@mmmk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria A. Crawshaw (See above for address)

Defendant
Kathleen M. Dennehy TERMINATED: 09/21/2007

represented by Richard C. McFarland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joan T. Kennedy (See above for address) ATTORNEY TO BE NOTICED

Defendant Does 1 through 100

represented by Joan T. Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
University of Massachusetts Medical School TERMINATED: 07/01/2005

represented by Anthony R. Brighton Smith, Sovik, Kendrick & Sugnet, P.C. 250 S. Clinton Street, Suite 600 Syracuse, NY 13202-1263 315-474-2911 Email: abrighton@smithsovik.com TERMINATED: 08/11/2011 ATTORNEY TO BE NOTICED

Stephen M. O'Shea (See above for address) ATTORNEY TO BE NOTICED

Defendant
Luis S. Spencer Commissioner of the Department of Corrections

represented by Joan T. Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard C. McFarland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Christine M. Alexander

represented by Christine M. Alexander PRO SE

Date Filed 11/21/2000 11/21/2000 12/12/2000
12/12/2000
12/12/2000 12/12/2000 12/12/2000 12/22/2000 12/27/2000
12/27/2000 12/27/2000 12/27/2000 01/10/2001 01/23/2001

# Docket Text
1 Application/petition by Michelle Kosilek to proceed without prepayment of fees (in forma pauperis) . filed. (scj) (Entered: 12/04/2000)
2 Motion by Michelle Kosilek for appointment of counsel . filed. (scj) (Entered: 12/08/2000)
3 Judge Mark L. Wolf . Order entered granting [1-1] motion to proceed without prepayment of fees (in forma pauperis) . It is further ordered that the clerk issue summons and that the US marshal serve the summons, complaint and copy of this order upon the defendants at the directions of the plaintiff with all costs to the US government. cc/pla [EOD Date 12/22/00] (scj) (Entered: 12/22/2000)
4 Judge Mark L. Wolf . Order entered denying [2-1] motion for appointment of counsel without prejudice to filing such a motion after the named defendants have filed responsive pleadings. cc/pla [EOD Date 12/22/00] (scj) (Entered: 12/22/2000)
5 Complaint filed in accordance with order no. 3. Case assigned to Judge: Wolf. Fee Status: Waived (scj) . (Entered: 12/27/2000)
6 Appendix/exhibits by Michelle Kosilek in support of [5-1] complaint. filed. (scj) (Entered: 12/27/2000)
7 Motion by Michelle Kosilek to amend [5-1] complaint . filed. (scj) (Entered: 12/27/2000)
8 Notice for payment of prisoner filing fee issued to the Treasurer at MCI Norfolk . cc/pla, accounting, MCI Norfolk Treasurer (scj) (Entered: 12/27/2000)
Summons issued for Department of Corr, Michael T. Maloney, University of Mass., Arthur K. Brewer, Harrison O'Connor, Kenneth Applebaum, Karen Dewees. Mailed to plaintiff on 12/27/00 with USM 285 forms and US marshal service letter (scj) (Entered: 12/27/2000)
9 Letter by Michelle Kosilek dated: 12/26/00 to: Mr. Cronin filed. (ktb) (Entered: 12/27/2000)
10 Memorandum by Michelle Kosilek in support of continuity of claim, FILED. (ktb) (Entered: 12/27/2000)
11 Appendix/exhibits by Michelle Kosilek filed. (ktb) (Entered: 12/27/2000)
complaint scanned (scj) (Entered: 01/10/2001)
14 Return of service executed as to Michael T. Maloney with service on 1/18/01 filed. (ktb) (Entered: 01/29/2001)

01/23/2001 01/23/2001 01/23/2001 01/26/2001
01/26/2001 01/26/2001 01/29/2001
01/30/2001
01/30/2001
02/01/2001 02/01/2001 02/01/2001 02/01/2001 02/01/2001 02/02/2001

15 Return of service executed as to Department of Corrections with service on 1/18/01 filed. (ktb) (Entered: 01/29/2001)
16 Return of service unexecuted as to Karen Dewees filed. (envelope attached) FOE (ktb) (Entered: 01/29/2001)
17 Return of service unexecuted as to Arthur K. Brewer, filed. (returned envelope attached) FOE (ktb) (Entered: 01/29/2001)
13 Notice of appearance of attorney for Department of Corr, Michael T. Maloney by Richard C. McFarland, filed, c/s. (ktb) (Entered: 01/29/2001)
18 Return of service unexecuted as to University of Mass. Medical School, filed. (return envelope returned - FOE) (ktb) (Entered: 01/29/2001)
19 Return of service unexecuted as to Harrison O'Connor, filed. (RETURN ENVELOPE RETURNED) FOE (ktb) (Entered: 01/29/2001)
12 Motion by Department of Corr, Michael T. Maloney to extend time to 3/2/01 to file a responsive pleading , filed, c/s. (ktb) (Entered: 01/29/2001)
20 Response by Michelle Kosilek in opposition to [12-1] motion to extend time to 3/2/01 to file a responsive pleading , filed, c/s. (ktb) (Entered: 02/01/2001)
21 Motion by Michelle Kosilek for appointment of counsel, or in the alternative, to merge two civil actions , FILED, c/s. (ktb) (Entered: 02/01/2001)
22 Letter by Michelle Kosilek dated: 1/26/01 to: Clerk enclosing four returns of service on summons (ktb) (Entered: 02/05/2001)
23 Return of service unexecuted as to Karen Dewees, filed. (ktb) (Entered: 02/05/2001)
24 Return of service unexecuted by Marshal's Office on University of Mass. Medical School filed. (ktb) (Entered: 02/05/2001)
25 Return of service unexecuted as to Harrison O'Connor , filed. (ktb) (Entered: 02/05/2001)
26 Return of service unexecuted by US Marshal's Service as to Arthur K. Brewer, Medical Director, filed. (ktb) (Entered: 02/05/2001)
27 Motion by Michelle Kosilek to impose sanctions , with exhbits 1 and 2, filed. cpy sent to deft via certifed mail (ktb) (Entered: 02/06/2001)

02/06/2001 02/28/2001 03/02/2001 03/02/2001 03/12/2001 03/12/2001 03/28/2001 04/19/2001
04/30/2001 05/10/2001 05/11/2001 05/11/2001

Judge Mark L. Wolf . Endorsed Order entered granting [12-1] motion to extend time to 3/2/01 to file a responsive pleading. cc/cl. [EOD Date 2/6/01] (ktb) (Entered: 02/06/2001)
28 Motion by Michelle Kosilek for summary judgment, default of Rule 4 , filed, c/s. (ktb) (Entered: 02/28/2001)
29 Motion by Department of Corr, Michael T. Maloney to dismiss the complaint , filed, c/s. (ktb) (Entered: 03/15/2001)
30 Memorandum by Department of Corr, Michael T. Maloney in support of [29-1] motion to dismiss the complaint, filed, c/s. (ktb) (Entered: 03/15/2001)
31 Response by Michelle Kosilek in opposition to [29-1] motion to dismiss the complaint , filed. (eaf) (Entered: 03/19/2001)
32 Amended Motion by Michelle Kosilek for summary judgment , default for failure to answer complaint filed. (eaf) (Entered: 03/19/2001)
33 Letter by Michelle Kosilek dated: 3/24/01 to Clerk re his pending motion for summary judgment based on Default (Rule 4), FILED. (ktb) (Entered: 03/28/2001)
34 Judge Mark L. Wolf . Order entered denying [28-1] motion for summary judgment, default of Rule 4 denying [32-1] motion for summary judgment. The Clerk shal re-issue summons for service of defts Universiry of Mass Medical School. Correctiona Mecial Srvies, Inc. Harrison O'Connor. Arthur K. Brewer, Kennthe Applebaum, and Karen DeWees. The Summomns and complaint chall, by May 1, 2001 be served on the these defts. Because pltf is proceeding in forma pauperis, the United States Marshal shall serve a copy of the complaint, summons, and this order up ont e defts listed above with all cots of servie to be advanced by the United States. cc/cl. [EOD Date 4/23/01] (ktb) (Entered: 04/23/2001)
35 Notice of appeal by Michelle Kosilek filed. Fee Status: vv Appealing: [34-1] order . Appeal record due on 5/15/01 (ktb) (Entered: 05/02/2001)
36 Return of service executed as to Correctional Medical with service on 5/9/01 filed. Answer due on 5/29/01 for Correctional Medical (ktb) (Entered: 05/10/2001)
37 Return of service executed as to Kenneth Applebaum with service on 5/11/01 filed. Answer due on 5/31/01 for Kenneth Applebaum (ktb) (Entered: 05/18/2001)
38 Return of service executed as to Harrison O'Connor with service on 5/11/01 filed. Answer due on 5/31/01 for Harrison O'Connor (ktb) (Entered: 05/18/2001)

05/11/2001 05/11/2001 05/11/2001 05/25/2001 05/25/2001 05/29/2001
05/29/2001 05/30/2001 05/30/2001 06/01/2001 06/05/2001 06/05/2001 06/07/2001 06/08/2001

39 Return of service executed as to Arthur K. Brewer with service on 5/11/01 filed. Answer due on 5/31/01 for Arthur K. Brewer (ktb) (Entered: 05/18/2001)
40 Return of service executed as to Karen Dewees with service on 5/11/01 filed. Answer due on 5/31/01 for Karen Dewees (ktb) (Entered: 05/18/2001)
41 Return of service executed as to University of Mass. with service on 5/11/01 filed. Answer due on 5/31/01 for University of Mass. (ktb) (Entered: 05/18/2001)
42 Order of the US Court of Appeals re: [35-1] appeal; The application for permission to appeal is denied. (jr) (Entered: 05/25/2001)
Certified copy of docket and record on appeal forwarded to U.S. Court of Appeals re: [35-1] appeal . (jr) (Entered: 05/25/2001)
43 Request (non motion) of the Defts Univerisity of Massachusetts Medical School, Dr. Harrison O'Connor, Dr. Kenneth Appelbaum and Karen DeWees, for a Consolidated Hearing with Regard to Motion to Dismiss the pltf's Complaint and/or for the entry of Summary Judgment, FILED, c/s (ktb) (Entered: 05/29/2001)
44 Motion by University of Mass., Harrison O'Connor, Kenneth Applebaum, Karen Dewees to dismiss the pltfs's complaint and/or for the entry of summary judgment , filed, c/s. (ktb) (Entered: 05/29/2001)
45 Letter to Judge Young to Kosilek re motion for writ of mandamus, FILED. (ktb) (Entered: 06/01/2001)
46 Motion by Michelle Kosilek for a writ of mandamus , filed, c/s. (ktb) (Entered: 06/01/2001)
47 Judge Mark L. Wolf . Order entered mooting [46-1] motion for a writ of mandamus cc/cl. [EOD Date 6/5/01] (ktb) (Entered: 06/05/2001)
48 Response by Michelle Kosilek in opposition to [44-1] motion to dismiss the pltfs's complaint and/or for the entry of summary judgment, filed, c/s. (ktb) (Entered: 06/05/2001)
49 Motion by Michelle Kosilek for default judgment against Arthur K. Brewer, Correctional Medical , filed, c/s. (ktb) (Entered: 06/05/2001)
US Court of Appeals Case Number assigned to [35-1] appeal : USCA NUMBER: 01-1777. (jr) (Entered: 06/07/2001)
Case returned to the District Court from the Court of Appeals, requested by the Law Clerk, Judi Goldberg. (jr) (Entered: 06/08/2001)

06/08/2001 06/08/2001 06/11/2001 06/11/2001 06/12/2001 06/12/2001 06/13/2001 06/18/2001 07/17/2001 08/07/2001
08/07/2001 08/10/2001 08/20/2001 08/20/2001

Transmitted supplemental record on appeal: re: [35-1] appeal Document numbers: 47 (jr) (Entered: 06/08/2001)
50 Motion by Arthur K. Brewer, Correctional Medical to dismiss , filed, c.s. (ktb) (Entered: 06/11/2001)
Transmitted supplemental record on appeal: re: [35-1] appeal Document numbers: 47 (jr) (Entered: 06/11/2001)
51 Response by Arthur K. Brewer, Correctional Medical in opposition to [49-1] motion for default judgment against Arthur K. Brewer, Correctional Medical, filed, c/s. (ktb) (Entered: 06/12/2001)
52 Letter by Michelle Kosilek dated: 6/8/01 requesting a trancript order form, FILED. (ktb) (Entered: 06/12/2001)
53 Letter by Michelle Kosilek dated: 6/8/01 requesting a copy of any repsonse filed by defts CMS and Arthur Brewer, M.D. showing that they have responded to new summons issued. (ktb) (Entered: 06/12/2001)
54 Response by Michelle Kosilek in opposition to [50-1] motion to dismiss, filed, c/s. (ktb) (Entered: 06/13/2001)
55 Letter by Michelle Kosilek to clerk enclosing the transcript order he had filled out and requesting a copy of Doc. #51, along with a complete docket sheet, filed. (ktb) Modified on 06/18/2001 (Entered: 06/18/2001)
56 Notice of voluntary dismissal by Michelle Kosilek as to Karen Dewees, filed, c/s. (ktb) (Entered: 07/17/2001)
57 Judge Mark L. Wolf . Order entered granting [7-1] motion to amend [51] complaint denying [21-1] motion for appointment of counsel, or in the alternative, to merge two civil actions denying [27-1] motion to impose sanctions granting [44-1] motion to dismiss the pltfs's complaint and/or for the entry of summary judgment as to DeWees. This case is STAYED pending final resolution of Kosilek v. Nelson CA 92-12820-MLW, which will affect which, if nay, of the claims in the instant case are viable. cc/cl. [EOD Date 8/9/01] (ktb) (Entered: 08/09/2001)
Case stayed Reason: pursuant to 8/7/01 Order (ktb) (Entered: 09/04/2002)
Transmitted supplemental record on appeal: re: [35-1] appeal Document numbers: 57 (jr) (Entered: 08/10/2001)
58 Mandate of US Court of Appeals re: [35-1] appeal dismissing [35-1] appeal. (jr) (Entered: 08/20/2001)
Record on appeal returned from U.S. Court of Appeals, re: [35-1] appeal . (jr) (Entered: 08/20/2001)

10/19/2001 02/19/2002 04/17/2002 07/16/2002 09/04/2002 09/11/2002 09/11/2002 09/30/2002
09/30/2002
10/01/2002 10/24/2002 10/29/2002 11/25/2002

59 Joint Pretrial memorandum by Michelle Kosilek, Department of Corr, Michael T. Maloney, filed. (ktb) (Entered: 10/22/2001)
60 Motion by Michelle Kosilek to further amend complaint , filed, c/s. (ktb) (Entered: 02/19/2002)
61 Exhibits by Michelle Kosilek [60-1] motion to further amend complaint, FILED. (ktb) (Entered: 04/22/2002)
62 Motion by Michelle Kosilek for preliminary injunction , filed, c/s. (ktb) (Entered: 07/17/2002)
63 Letter by Paul McTauge and Stephen M. O'Shea dated: 9/3/02 to: clerk re pending motion to dismiss, FILED. (ktb) (Entered: 09/04/2002)
64 Letter by Michelle Kosilek dated: 9/1/02 enclosing a copy of a letter "seeking resolution without further involvement of the Court." FILED. (ktb) (Entered: 09/16/2002)
65 Copy of Letter by Michelle Kosilek to MCI Norfolk Supt. Luis Spencer, FILED. (ktb) (Entered: 09/16/2002)
66 Judge Mark L. Wolf . Memorandum and Order entered. denying WITHOUT PREJUDICE [29-1] motion to dismiss the complaint; Pltf's Motion for defaul judgment denied without prejudice; denying [50-1] motion to dismiss denying [60-1] motion to further amend complaint denying [62-1] motion for preliminary injunction [EOD Date 9/30/02] Absent good cause shown, this case will continue to be STAYED muntil at least 1/31/03. The parties shall, by 1/31/03, report whether they request that the stay be lifted and, if so, the reasons for that request. cc/cl. (ktb) Modified on 10/01/2002 (Entered: 09/30/2002)
Terminated document: denying w/o prejudice [49-1] motion for default judgment against Arthur K. Brewer, Correctional Medical Requested by mlw. See Memorandum and Order entered 9/30/02. (ktb) (Entered: 10/01/2002)
67 Motion by Michelle Kosilek for summary judgment , filed, c/s. (ktb) (Entered: 10/04/2002)
68 Pltf's Settlement Offer, and request for deft's 9/3/02 submission. FILED. (ktb) (Entered: 10/25/2002)
69 Letter by Michelle Kosilek enclosing a letter to James V. Kerrigani of Mass. Peer Review Organization dated: 10/28/02 to: Clerk O'Leary filed. (ktb) (Entered: 10/30/2002)
70 Motion by Michelle Kosilek to lift stay , filed, c/s. (ktb) (Entered: 11/27/2002)

01/31/2003 01/31/2003 01/31/2003 02/04/2003 02/04/2003
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09/15/2003

71 Motion by Department of Corr, Michael T. Maloney to lift stay , filed, c/s. (ktb) (Entered: 02/03/2003)
73 Renewed Motion by Department of Corr, Michael T. Maloney to dismiss , filed, c/s. (ktb) (Entered: 02/03/2003)
72 Memorandum by Department of Corr, Michael T. Maloney in support of [73-1] motion to dismiss filed, c/s. (ktb) (Entered: 02/03/2003)
74 Letter by Stephen M. O'Shea dated: 1/31/03 to: clerk requesting a hearing on #75, FILED. (ktb) (Entered: 02/04/2003)
75 Motion by University of Mass., Harrison O'Connor, Kenneth Applebaum to vacate [66-1] memorandum order, dismiss the pltf's complaint , filed, c/s., (ktb) (Entered: 02/04/2003)
76 Response by Michelle Kosilek in opposition to [73-1] motion to dismiss, filed, c/s. (ktb) (Entered: 02/13/2003)
77 Letter by Michelle Kosilek dated: 3/1/03 to: clerk enclosing a copy of the report of Dr. David Seil, FILED. (ktb) (Entered: 03/17/2003)
78 Letter by Michelle Kosilek enclosing a hand-written copy of a letter to counsel for Mr. Maloney filed. (ktb) (Entered: 03/19/2003)
79 Letter by Michelle Kosilek to Judge Wolf requesting a hearing on motion for s/j, filed. (ktb) (Entered: 04/01/2003)
83 Letter/request (non-motion) from Michelle Kosilek. (O'Leary, Dennis) (Entered: 06/03/2003)
80 Letter by Michelle Kosilek enclsoing a letter to Atty McFraland, counsel for deft, filed. (ktb) (Entered: 05/12/2003)
81 Courtesy copy of letter non-motion) from Michelle Kosilek to Attorney Richard McFarland. (O'Leary, Dennis) (Entered: 05/22/2003)
82 Courtesy copy of letter non-motion) from Michelle Kosilek to Susan Bergeron. (O'Leary, Dennis) (Entered: 05/22/2003)
84 Letter/request (non-motion) from Michelle Lynne Kosilek enclosing Letter to Atty McFarland rquesting implementation of Court Ordered medically presecibed treatment, FILED. (Boyce, Kathy) (Entered: 06/23/2003)
85 Letter/request (non-motion) from Michelle Kosilek dated 9/10/03 encosing a letter sent to Kenneth Appelbaum, M.D. requesting compl,aince with Court-Ordered treatment recommendations, FILED. (Boyce, Kathy) (Entered: 09/22/2003)

09/23/2003 09/23/2003 09/26/2003
10/02/2003 10/17/2003 12/05/2003 12/16/2003 12/29/2003 02/05/2004 03/01/2004 04/02/2004 04/12/2004 05/03/2004

86 Letter dated 9/19/03 to Judge Wolf from Michelle Kosilek re his recend demand for treatment, FILED. (Boyce, Kathy) (Entered: 09/24/2003)
88 Letter/request from Michelle Lynne Kosilek attaching copies of two letters he sent to Dr. Kenneth Appelbaum, FILED, c/s. (Boyce, Kathy) (Entered: 09/30/2003)
87 Judge Mark L. Wolf : ORDER entered 1. Kosilek shall, by October 31, 2003, inform the court whether this case should be dismissed or should continue. If the case is to be continued, Kosilek shall state whether the stayshould be lifted or perpetuated. 2. This Order shall be served on the defendants, Kosilek, who is pro se in this case, and Frances Cohen, who is Kosilek's counsel in Maloney. 3. This case is otherwise STAYED. (O'Leary, Dennis) (Entered: 09/26/2003)
89 Response to 87 Order, by Michelle Kosilek entitled ( "Informative motion") FILED, c/s. (Boyce, Kathy) (Entered: 10/06/2003)
90 Copy of Letter from Michelle Kosilek to Ms. Dixon, LICSW at Fenway Community Health Center, FILED. (Boyce, Kathy) (Entered: 10/21/2003)
91 Letter from Michelle Kosilek to clerk enclosing a copy of a letter to counsel for deft U/Mass Medical School, FILED, c/s. (Boyce, Kathy) (Entered: 12/17/2003)
93 Letter to Clerk from Michelle Lynne Kosilek enclosing dismissal offer to counsel for Arthur Brown, FILED. (Boyce, Kathy) (Entered: 01/13/2004)
92 Letter to Deputy Supt. Christopher Mitchell from Michelle Kosilik, FILED. (Boyce, Kathy) (Entered: 01/12/2004)
94 Letters from Michelle Lynne Kosilek to Dr. Kenneth Appelbaum, M.D. and Dr. SeilFILED.(Boyce, Kathy) (Entered: 02/17/2004)
95 Letter from Kosilek enclosing a copy of his letter to Kathleen Dennehy, Commissioner of the Dept. of Corrections, FILED.(Boyce, Kathy) (Entered: 03/04/2004)
96 Judge Mark L. Wolf : ORDER entered Status Report due by 5/14/2004.(O'Leary, Dennis) (Entered: 04/02/2004)
97 Letter dated 4/8/04 (non-motion) from Michelle Kosilek to Judge Wolf, with attached letter sent to counsel for defts, FILED. (Boyce, Kathy) (Entered: 04/16/2004)
98 Letter from Michelle Lynne Kosilek to Mr. Oleary enc;osing a letter to Dr. Kenneth Appelbaum, Filed. (Boyce, Kathy) (Entered: 05/06/2004)

05/10/2004 05/14/2004
05/21/2004 06/04/2004
06/07/2004 06/21/2004 06/25/2004 07/19/2004 08/05/2004
08/27/2004 09/22/2004 10/22/2004 10/26/2004

100 Letter dated May 5, 2004 from Michelle Lynne Kosilek to Atty O'Shea, FILED. (Boyce, Kathy) (Entered: 05/24/2004)
99 Response by Kenneth Applebaum, Arthur K. Brewer, Correctional Medical Systems, Department of Correction for the State of Massachusetts, Michael T. Maloney, Harrison O'Connor, University of Mass. to April 2, 2004 Court Order. (McFarland, Richard) (Entered: 05/14/2004)
101 MOTION to Maintain Stay by Michelle Kosilek, FILED, c/s. (filed in chambers on 5/21/04)(Boyce, Kathy) (Entered: 05/24/2004)
102 Judge Mark L. Wolf : ORDER entered It is hereby ORDERED that:1. The stay of this case shall continue.2. The parties shall, by November 19, 2004, confer andreport, jointly if possible, whether this case may be dismissedand, if not, whether the stay should be lifted.(O'Leary, Dennis) (Entered: 06/04/2004)
104 Letter from Michelle Lynne Kosilek dated May 31, 2004 enclosing a letter sent to Arthur Brewer, M.D., FILED. (Boyce, Kathy) (Entered: 07/07/2004)
103 Letter dated 6/10/04 from Michelle Lynne Kosilek containing renewed settlement proposal, FILED. (Boyce, Kathy) (Entered: 07/06/2004)
105 Letter dated June 25, 2004 from Michelle Kosilek to Dr. Kenneth Applebaum, FILED. (Boyce, Kathy) (Entered: 07/09/2004)
106 Pltf's Informative Pleading Progress of Therapy, FILED. (Boyce, Kathy) Additional attachment(s) added on 7/21/2004 (Boyce, Kathy). (Entered: 07/21/2004)
Judge Mark L. Wolf : ORDER entered ELECTRONIC ENDORSEMENT re 106 Remark As this "Informative Motion" does not request any specific relief, the court makes no decision concerning it.(O'Leary, Dennis) (Entered: 08/05/2004)
107 Letter dated 8/25/04 from Michelle Kosilek to Mr. O'Leary re denial of medical treatment, FILED. (Boyce, Kathy) (Entered: 09/09/2004)
108 MOTION to Lift Stay by Michelle Kosilek, FILED, c/s.(Boyce, Kathy) (Entered: 09/23/2004)
109 MOTION for Injunctive Relief by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 # 4 # 5 # 6, FILED, c/s.(Boyce, Kathy) (Entered: 10/26/2004)
Judge Mark L. Wolf : Electronic ORDER entered terminating 101 Motion to Stay (O'Leary, Dennis) (Entered: 10/26/2004)

11/02/2004 11/09/2004 11/17/2004
11/19/2004 11/19/2004 11/19/2004 11/23/2004 11/23/2004 12/02/2004 12/20/2004 12/20/2004
01/03/2005

110 Letter to Mr. O'Leary from Michelle Lynne Kosilek enclosing a letter sent Medical Director Arthur Brown, FILED. (Boyce, Kathy) (Entered: 11/03/2004)
111 Letter dated 11/8/04 from Michelle Lynne Kosilek to Judge Wolf, FILED. (Boyce, Kathy) (Entered: 11/12/2004)
E-Mail Notice re Letter, Document No. 11 originally issued on 11/12/04 returned as undeliverable. Name of Addressee: Steve O'Shea, Esq. exhibit Letter attached to Letter from Michelle Kosilek was written in pencil and was unreadable when electronically filed. Letter with attached letter faxed to Steve O'Shea (Boyce, Kathy) (Entered: 11/17/2004)
112 STATUS REPORT by Kenneth Applebaum, Arthur K. Brewer, Correctional Medical Systems, Department of Correction for the State of Massachusetts, Michael T. Maloney, Harrison O'Connor. (McFarland, Richard) (Entered: 11/19/2004)
113 CERTIFICATE OF SERVICE by Kenneth Applebaum, Arthur K. Brewer, Correctional Medical Systems, Department of Correction for the State of Massachusetts, Michael T. Maloney, Harrison O'Connor re 112 Status Report. (McFarland, Richard) (Entered: 11/19/2004)
114 Letter/request (non-motion) from Michelle Kosilek dated 11/15/04, FILED. (Boyce, Kathy) (Entered: 11/22/2004)
115 NOTICE of Voluntary Dismissal by Michelle Kosilek as to all pending motions except of her 10/19/04 Motion for Injunctive Relief and the 11/23/04 Motion for Default Judgment, FILED. (Boyce, Kathy) (Entered: 11/30/2004)
116 MOTION for Default Judgment of Defts by Michelle Kosilek, FILED, c/s.(Boyce, Kathy) (Entered: 11/30/2004)
117 Copy of Letter dated 11/30/04 sent from Michelle Kosilek to Med. Director Arthur Brewer, M.D. at U.Mass Correctional Healthcare, FILED. (Boyce, Kathy) (Entered: 12/07/2004)
118 NOTICE of Withdrawal of Appearance Attorney Bruce R. Henry terminated. (Henry, Bruce) (Entered: 12/20/2004)
119 NOTICE of Appearance by Victoria A. Crawshaw and David A. Hilton on behalf of Arthur K. Brewer, Correctional Medical Systems (Crawshaw, Victoria) Modified on 2/14/2005 to add the appearance of David A. Hilton to the text of entry.(Boyce, Kathy). (Entered: 12/20/2004)
120 MOTION to appear pro bono publico, by Michelle Kosilek, FILED, c/s.(Boyce, Kathy) (Entered: 01/10/2005)

01/30/2005 02/01/2005 02/28/2005 02/28/2005 03/02/2005
04/13/2005 04/15/2005 04/15/2005 04/15/2005 04/18/2005 04/25/2005

Judge Mark L. Wolf : Electronic ORDER entered granting 120 Informative Motion. The parties shall, by February 28, 2005, report further on the status of this case. (O'Leary, Dennis) (Entered: 02/01/2005)
Set/Reset Deadlines: Status Report due by 2/28/2005. (O'Leary, Dennis) (Entered: 02/01/2005)
121 STATUS REPORT by Department of Correction for the State of Massachusetts, Michael T. Maloney, University of Mass., Arthur K. Brewer, Harrison O'Connor, Kenneth Applebaum, Correctional Medical Systems. (Crawshaw, Victoria) (Entered: 02/28/2005)
122 STATUS REPORT by Michelle Kosilek. (Cohen, Frances) (Entered: 02/28/2005)
123 Judge Mark L. Wolf : ORDER entered. Defendant, DOC shall by 3/11/2005 provide counsel for plaintiff Michelle Kosilek the recentevaluation report prepared by the Fenway Clinic and alldisciplinary reports, letters to the file, and other documentsrelating to the conduct of Kosilek in prison from August 28, 2002to the present. Status Report due by 4/15/2005. Status Conference set for 4/25/2005 03:00 PM in Courtroom 10 before Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 03/04/2005)
124 NOTICE OF RESCHEDULING. The STATUS CONFERENCE originally scheduled for APRIL 25, 2005 at 3:00 P.M. before Judge Wolf, has been RESCHEDULED for APRIL 25, 2005 at 10:30 AM in courtroom 10 on the 5th floor. (O'Leary, Dennis) (Entered: 04/13/2005)
125 STATUS REPORT by University of Mass., Arthur K. Brewer, Harrison O'Connor, Kenneth Applebaum, Correctional Medical Systems. (Crawshaw, Victoria) (Entered: 04/15/2005)
126 STATUS REPORT by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Cohen, Frances) (Entered: 04/15/2005)
127 STATUS REPORT by Department of Correction for the State of Massachusetts, Michael T. Maloney. (McFarland, Richard) (Entered: 04/15/2005)
128 Writ of Habeas Corpus ad Prosequendum Issued for 4/25/2005. (O'Leary, Dennis) (Entered: 04/18/2005)
129 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 4/25/2005. (Court Reporter Killian.) (O'Leary, Dennis) (Entered: 04/25/2005)

04/25/2005 05/24/2005 06/09/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/13/2005 06/14/2005 06/14/2005 06/14/2005 06/17/2005 06/21/2005 06/24/2005

130 Judge Mark L. Wolf : ORDER entered. Status Report due by 6/10/2005. Status Conference set for 6/14/2005 03:00 PM in Courtroom 10 before Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 04/25/2005)
131 MOTION to Modify April 25, 2005 Order by Department of Correction for the State of Massachusetts, Michael T. Maloney.(McFarland, Richard) (Entered: 05/24/2005)
137 MOTION for Summary Judgment by Michelle Kosilek. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 3# 5 Exhibit 5)(Boyce, Kathy) (Entered: 06/13/2005)
132 STATUS REPORT of the Defendants by Arthur K. Brewer, Correctional Medical Systems. (Crawshaw, Victoria) (Entered: 06/10/2005)
133 STATUS REPORT By Attorney Stephen M. O'Shea by University of Mass., Harrison O'Connor, Kenneth Applebaum. (Crawshaw, Victoria) (Entered: 06/10/2005)
134 Assented to MOTION for Extension of Time to 06/13/05 to File Status Report by Michelle Kosilek.(Cohen, Frances) (Entered: 06/10/2005)
135 STATUS REPORT by Department of Correction for the State of Massachusetts, Michael T. Maloney. (Attachments: # 1 # 2)(McFarland, Richard) (Entered: 06/10/2005)
136 STATUS REPORT by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Cohen, Frances) (Entered: 06/13/2005)
Judge Mark L. Wolf : Electronic ORDER entered granting 131 Motion to Modify Court Order dated 4/25/2005. (O'Leary, Dennis) (Entered: 06/14/2005)
138 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 6/14/2005. (Court Reporter Twowey.) (O'Leary, Dennis) (Entered: 06/14/2005)
139 STIPULATION of Dismissal by Arthur K. Brewer, Correctional Medical Systems. (O'Leary, Dennis) (Entered: 06/14/2005)
140 Judge Mark L. Wolf : ORDER entered. Status Report due by 6/21/2005. Hearing set for 9/8/2005 03:30 PM in Courtroom 10 before Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 06/17/2005)
141 STATUS REPORT by Michelle Kosilek. (Cohen, Frances) (Entered: 06/21/2005)
Judge Mark L. Wolf : Electronic ORDER entered. ELECTRONIC ENDORSEMENT re 141 Status Report filed by Michelle Kosilek. The

06/29/2005 07/01/2005
07/15/2005 08/05/2005 08/10/2005
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09/01/2005 09/07/2005 09/08/2005
09/12/2005

parties shall report further by June 29, 2005.(O'Leary, Dennis) (Entered: 06/24/2005)
142 STATUS REPORT by University of Mass.. (O'Shea, Stephen) (Entered: 06/29/2005)
143 STIPULATION of Dismissal with Prejudice, Without Costs, and with All Rights of Appeal Waived only with regard to University of Mass. Medical School, Harrison O'Connor, Kenneth Applebaum, FILED, c/s. (Boyce, Kathy) (Entered: 07/05/2005)
144 AMENDED COMPLAINT against all defendants, filed by Michelle Kosilek.(Cohen, Frances) (Entered: 07/15/2005)
145 ANSWER to Amended Complaint by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 08/05/2005)
146 TRANSCRIPT of Status Conference held on April 25, 2005 before Judge Wolf. Court Reporter: Shelly M. Killian. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-7117 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/10/2005)
147 Letter to Judge Wolf dated 8/15/05 from Michelle Lynne Kosilek to Judge Wolf re hus medical condition, FILED. (Boyce, Kathy) (Entered: 08/18/2005)
148 Judge Mark L. Wolf : ORDER entered. re 147 Letter/request (nonmotion). The attached August 15, 2005 letter to the court fromplaintiff Michelle Kosilek is hereby provided to her counsel,Frances Cohen, Esq., and to counsel for defendants. (Attachments: # 1)(O'Leary, Dennis) (Entered: 08/29/2005)
149 Writ of Habeas Corpus ad Prosequendum Issued for 9/8/2005. (O'Leary, Dennis) (Entered: 09/01/2005)
150 STATUS REPORT by Michelle Kosilek. (Attachments: # 1)(Cohen, Frances) (Entered: 09/07/2005)
Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 9/8/2005. Court receives a status report from the parties. Court establishes a schedule for the remainder of the case. Scheduling order to issue. (Digital Recorder #digital.) (O'Leary, Dennis) (Entered: 09/14/2005)
Judge Mark L. Wolf : Electronic ORDER entered terminating 108 Motion, terminating 109 Motion for Preliminary Injunction, terminating 116 Motion for Default Judgment, terminating 134 Motion for Extension of Time, terminating 137 Motion

09/14/2005
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for Summary Judgment pursuant to the rulings made in court on September 8, 2005. (O'Leary, Dennis) (Entered: 09/12/2005)
151 Judge Mark L. Wolf : ORDER entered. SCHEDULING ORDER: Final Pretrial Conference set for 2/15/2006 03:00 PM in Courtroom 10 before Judge Mark L. Wolf. Status Conference set for 1/26/2006 04:00 PM in Courtroom 10 before Judge Mark L. Wolf. Amended Pleadings due by 10/31/2005. Discovery due by 1/13/2006. Jury Trial set for 2/27/2006 09:00 PM in Courtroom 10 before Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 09/14/2005)
152 First MOTION for Extension of Time to November 30, 2005 to amend pleadings, file additional pleadings, serve additional parties by Michelle Kosilek.(Cohen, Frances) Additional attachment(s) added on 10/17/2005 (Boyce, Kathy). Modified on 10/17/2005 to add proper electronic signature (Boyce, Kathy). (Entered: 10/12/2005)
Notice of correction to docket made by Court staff. Correction: Document No. 152, Motion for Extension of Time corrected: to add corrected electronic signature page (Boyce, Kathy) (Entered: 10/17/2005)
153 TRANSCRIPT of Status Conference held on September 8, 2005 before Judge Wolf. Digital Recording: Transcribed by Maryann Young. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting Maryann Young 508/384-2003 or the Clerk's Office. (Scalfani, Deborah) Modified on 10/18/2005 (Scalfani, Deborah). (Entered: 10/18/2005)
154 Amended MOTION for Extension of Time to 12/23/2005 to Amend the pleadings and Withdrawal of Prior Motion by Michelle Kosilek.(Cohen, Frances) (Entered: 10/28/2005)
155 Document disclosure by Michelle Kosilek.(Cohen, Frances) (Entered: 10/31/2005)
156 MOTION for Discovery for an Order Compelling Plaintiff toSubmit to Mental Examinations and Psychological Testing Pursuant to Fed. R. Ci. P. 35(a) by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 11/01/2005)
157 MEMORANDUM in Support re 156 MOTION for Discovery for an Order Compelling Plaintiff toSubmit to Mental Examinations and Psychological Testing Pursuant to Fed. R. Ci. P. 35(a) filed by Kathleen M. Dennehy. (Attachments: # 1)(McFarland, Richard) (Entered: 11/01/2005)
158 Document disclosure by Michelle Kosilek. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Cohen, Frances) (Entered: 11/01/2005)

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Withdrawal of motion: 152 First MOTION for Extension of Time to November 30, 2005 to amend pleadings, file additional pleadings, serve additional parties filed by Michelle Kosilek (Boyce, Kathy) (Entered: 11/07/2005)
159 Opposition re 156 MOTION for Discovery for an Order Compelling Plaintiff toSubmit to Mental Examinations and Psychological Testing Pursuant to Fed. R. Ci. P. 35(a) filed by Michelle Kosilek. (Cohen, Frances) (Entered: 11/15/2005)
160 AFFIDAVIT of Randi Ettner, Ph.D. re 159 Opposition to Motion For An Order Compelling Plaintiff to Submit to Mental Examinations and Psychological Testing Pursuant to Fed.R.Civ.P.35(a) by Michelle Kosilek. (Cohen, Frances) (Entered: 11/15/2005)
161 MOTION for Discovery - Leave to Depose Inmate Plaintiff by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 11/16/2005)
Judge Mark L. Wolf : Electronic ORDER entered granting 154 Motion for Extension of Time and Withdrawal of Prior Motion. ALLOWED. It is however, unlikely that any further extension will be granted. (O'Leary, Dennis) (Entered: 11/29/2005)
162 Document Disclosure of Expert Testimony by Kathleen M. Dennehy. (Attachments: # 1 expert report# 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(McFarland, Richard) Additional attachment(s) added on 12/6/2005 (O'Leary, Dennis). Modified on 1/24/2006 to change the event name from Motion for Disclosure to Document Disclosure as this document was inadvertently e-filed as a motion (Boyce, Kathy). (Entered: 12/02/2005)
163 Remark Docket entry no. 162 corrected to delete unredacted versions and add redacted versions of exhibits 5 (Beeler Report and Resume)and 7 (Dumond CV). (Attachments: #1) (O'Leary, Dennis) (Entered: 12/06/2005)
164 Assented to MOTION to Take Deposition from Christine Alexander and Edward Voisine by Michelle Kosilek.(Cohen, Frances) (Entered: 12/07/2005)
165 Judge Mark L. Wolf : ORDER entered granting 156 Motion for Order Compelling Plaintiff to Submit to Mental Examinations and Psychological Testing. Counsel shall confer and, by December 21, 2005, submit to the court a proposed order specifying the time, place, manner, conditions, and scope of examination and the person or persons by whom it is to be, granting 161 Motion for Leave to Depose Inmate Plaintiff, granting 164 Motion to Take Deposition of Edward Voisine and Christine Alexander. (O'Leary, Dennis) (Entered: 12/16/2005)

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166 NOTICE of Appearance by Joan T. Kennedy on behalf of all defendants (Kennedy, Joan) (Entered: 12/21/2005)
167 MOTION for Extension of Time to 01/13/2006 to File by Kathleen M. Dennehy.(Kennedy, Joan) (Entered: 12/21/2005)
Judge Mark L. Wolf : Electronic ORDER entered granting 167 Motion for Extension of Time to File. As this court is informed that plaintiff does not object, and in reliance on the representation that this will not delay the deposition of plaintiff or the completion of discovery, this motion is ALLOWED. (O'Leary, Dennis) (Entered: 12/27/2005)
168 Joint MOTION for Extension of Time to 1/32/06 to Complete Depositions by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 01/09/2006)
Judge Mark L. Wolf : Electronic ORDER entered granting 168 Motion for Extension of Time to Complete Discovery Discovery to be completed by 1/31/2006. (O'Leary, Dennis) (Entered: 01/10/2006)
169 Recommendations for Scheduling Order. (Cohen, Frances) (Entered: 01/18/2006)
170 STATUS REPORT by Michelle Kosilek. (Cohen, Frances) (Entered: 01/18/2006)
171 STATUS REPORT ON SETTLEMENT AND BASIS FOR FILING SUMMARY JUDGMENT MOTION by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 01/20/2006)
172 Writ of Habeas Corpus Issued as to Robert Michelle Kosilek for 1/26/2006. (O'Leary, Dennis) (Entered: 01/23/2006)
Motion terminated: 162 MOTION for Disclosure of Experts filed by Kathleen M. Dennehy terminated as the Document is not a Motion but a Document Disclosure (Boyce, Kathy) (Entered: 01/24/2006)
Notice of correction to docket made by Court staff. Correction: Document No. 162, Disclosure of Expert Testimony modified for the docket to reflect that the Document Entry is not a Motion but a Document Disclosure (Boyce, Kathy) (Entered: 01/24/2006)
173 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Scheduling Conference held on 1/26/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 01/27/2006)
174 Judge Mark L. Wolf : ORDER entered. For the reasons stated in court on 1/26/06, it is hereby ORDERED that: (1). The deft's motion to file a supplemental expert report is ALLOWED. (2). The pltf's motion to depose Dr. Loren Schechter is ALLOWED. The deposition shall be

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completed by February 7, 2006. (3). The deft shall file a motion for summary judgment by February 17, 2006. The pltf shall respond by March 10, 2006. Any reply shall be filed by March 17, 2006. (4). A hearing on the motion for summary judgment will be held on March 30, 2006 at 3:00 p.m. (5). If the motion for summary judgment is denied, the parties shall exchange witness lists and proposed exhibits by March 31, 2006. (6). If necessary, trial shall commence on April 6, 2006. (Boyce, Kathy) (Entered: 01/27/2006)
175 NOTICE of Appearance by Joseph L. Sulman on behalf of Michelle Kosilek (Sulman, Joseph) (Entered: 01/30/2006)
176 MOTION for the Court to Correct Errors in the Deponent's Deposition taken on 1/12/06 by Deponent Christine M. Alexander, FILED.(Boyce, Kathy) (Entered: 02/09/2006)
177 Document disclosure by Kathleen M. Dennehy. (Attachments: # 1 Supplement)(McFarland, Richard) (Entered: 02/15/2006)
178 MOTION for Summary Judgment by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 02/17/2006)
179 MEMORANDUM in Support re 178 MOTION for Summary Judgment filed by Kathleen M. Dennehy. (Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19Exhibit)(McFarland, Richard) (Entered: 02/17/2006)
180 AFFIDAVIT in Support re 178 MOTION for Summary Judgment filed by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 02/17/2006)
181 MOTION for Leave to File Excess Pages by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 02/17/2006)
NOTICE issued requesting courtesy copy for 179 Memorandum in Support of Motion,, 180 Affidavit in Support of Motion, 181 MOTION for Leave to File Excess Pages, 178MOTION for Summary Judgment. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 2/24/2006.These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (O'Leary, Dennis) (Entered: 02/21/2006)
182 Assented to MOTION for Leave to File Excess Pages by Michelle Kosilek.(Cohen, Frances) (Entered: 03/10/2006)
183 Opposition re 178 MOTION for Summary Judgment filed by Michelle Kosilek. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit

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3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18#19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29# 30Exhibit 30# 31 Exhibit 31# 32 Exhibit 32# 33 Exhibit 33# 34 Exhibit 34# 35 Exhibit 35# 36 Exhibit 36# 37 Exhibit 37# 38 Exhibit 38# 39 Exhibit 39# 40 Exhibit 40# 41Exhibit 41# 42 Exhibit 42# 43 Exhibit 43)(Cohen, Frances) (Entered: 03/10/2006)
184 AFFIDAVIT in Support of Plaintiff's Opposition To Defendant's Motion for Summary Judgment. (Attachments: # 1 Exhibit List)(Cohen, Frances) (Entered: 03/10/2006)
NOTICE issued requesting courtesy copy for 182 Assented to MOTION for Leave to File Excess Pages, 183 Opposition to Motion,,,, 184 Affidavit in Support. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 3/15/2006. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (O'Leary, Dennis) (Entered: 03/13/2006)
185 REPLY to Response to Motion re 178 MOTION for Summary Judgment filed by Kathleen M. Dennehy. (Attachments: # 1 # 2 # 3 # 4 # 5)(McFarland, Richard) (Entered: 03/17/2006)
186 MOTION to Strike 183 Opposition to Motion,,, by Kathleen M. Dennehy. (Attachments: # 1)(McFarland, Richard) (Entered: 03/17/2006)
187 Writ of Habeas Corpus ad Testificandum Issued as to Robert Michelle Kosilek for 3/30/2006. (O'Leary, Dennis) (Entered: 03/20/2006)
NOTICE issued requesting courtesy copy for 185 Reply to Response to Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 3/24/2006. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF.(O'Leary, Dennis) (Entered: 03/22/2006)
188 Notice Cancelling Hearing. Hearing cancelled: Summary Judgment Motion Hearing scheduled for March 30, 2006 at 3:00 PM (O'Leary, Dennis) (Entered: 03/28/2006)
189 MOTION in Limine by Michelle Kosilek. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 03/30/2006)

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190 Proposed Exhibit List by Kathleen M. Dennehy.. (McFarland, Richard) (Entered: 03/31/2006)
191 Witness List by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 03/31/2006)
192 Opposition re 186 MOTION to Strike 183 Opposition to Motion,,, filed by Michelle Kosilek. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 03/31/2006)
193 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 4/7/2006. (O'Leary, Dennis) (Entered: 04/04/2006)
194 Opposition re 189 MOTION in Limine filed by Kathleen M. Dennehy. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit)(McFarland, Richard) (Entered: 04/06/2006)
195 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 4/11/2006 and continuing. (O'Leary, Dennis) (Entered: 04/06/2006)
196 REPLY to Response to Motion re 189 MOTION in Limine filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 04/07/2006)
197 Judge Mark L. Wolf : ORDER entered denying re 178 MOTION for Summary Judgment filed by Kathleen M. Dennehy,, Motions terminated: 178 MOTION for Summary Judgment filed by Kathleen M. Dennehy. Bench Trial set for 5/30/2006 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Pretrial Conference set for 5/25/2006 11:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 04/10/2006)
198 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Motion Hearing held on 4/7/2006 re 178 MOTION for Summary Judgment filed by Kathleen M. Dennehy,. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 04/18/2006)
199 TRANSCRIPT of Motion for Summary Judgment Hearing held on April; 7, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 04/19/2006)
200 MOTION in Limine by Kathleen M. Dennehy. (Attachments: # 1 Exhibit)(Kennedy, Joan) (Entered: 04/28/2006)
201 MOTION in Limine by Michelle Kosilek. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 04/28/2006)

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202 Judge Mark L. Wolf : ORDER entered. re 176 MOTION to Correct filed by Christine M. Alexander, (O'Leary, Dennis) (Entered: 05/10/2006)
203 Opposition re 200 MOTION in Limine filed by Michelle Kosilek. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Cohen, Frances) (Entered: 05/11/2006)
204 STIPULATION re 197 Order,, Set Hearings,, Terminate Motions, all material facts which the parties agree, exhibits the parties intend to offer at trial with no objection, exhibits parties intend to offer at trial at the objection of the opposition party, proposed witness list by Michelle Kosilek, Kathleen M. Dennehy. (Cohen, Frances) (Entered: 05/12/2006)
205 Opposition re 201 MOTION in Limine filed by Kathleen M. Dennehy. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 05/15/2006)
206 MOTION for Leave to File Late by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 05/15/2006)
207 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 5/25/2006. (O'Leary, Dennis) Modified on 5/17/2006 (O'Leary, Dennis). (Entered: 05/17/2006)
208 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 5/30/2006 and continuing. (O'Leary, Dennis) Additional attachment(s) added on 5/17/2006 (O'Leary, Dennis). (Entered: 05/17/2006)
ELECTRONIC NOTICE issued requesting courtesy copy for 203 Opposition to Motion, 205 Opposition to Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 5/19/2006. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (O'Leary, Dennis) (Entered: 05/17/2006)
209 MOTION for Leave to File Supplemental Brief by Michelle Kosilek.(Sulman, Joseph) (Entered: 05/17/2006)
210 Opposition re 200 MOTION in Limine filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/17/2006)
211 Opposition re 200 MOTION in Limine Corrected Supplemental Brief filed by Michelle Kosilek. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 05/17/2006)
212 REPLY to Response to Motion re 209 MOTION for Leave to File Supplemental Brief and Plaintiff's Opposition to Defendant's Motion to Exclude Testimony of Christine Alexander and Edward Voisine filed by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 05/19/2006)

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213 STIPULATION re 197 Order,, Set Hearings,, Terminate Motions, Amended Stipulations by Michelle Kosilek, Kathleen M. Dennehy. (Sulman, Joseph) (Entered: 05/24/2006)
214 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Final Pretrial Conference held on 5/25/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 05/26/2006)
215 NOTICE by Michelle Kosilek Informative Motion (Sulman, Joseph) (Entered: 05/26/2006)
216 STIPULATION re 197 Order,, Set Hearings,, Terminate Motions, Second Amended Stipulation by Michelle Kosilek, Kathleen M. Dennehy. (Sulman, Joseph) (Entered: 05/26/2006)
217 STIPULATION Third Amended Stipulations by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 05/26/2006)
218 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 5/30/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 05/31/2006)
219 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for June 5, 2006 through June 9, 2006 (excluding June 6, 2006). (O'Leary, Dennis) (Entered: 05/31/2006)
220 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 5/31/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 05/31/2006)
221 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/1/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/05/2006)
222 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/2/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/05/2006)
225 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/5/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/07/2006)
223 Supplemental MEMORANDUM in Support re 200 MOTION in Limine filed by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 06/06/2006)
224 MEMORANDUM OF LAW by Michelle Kosilek. (Sulman, Joseph) (Entered: 06/06/2006)

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226 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/6/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/07/2006)
228 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/7/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/09/2006)
227 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for June 12, 2006 through June 16, 2006. (O'Leary, Dennis) (Entered: 06/08/2006)
229 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/8/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/09/2006)
230 MEMORANDUM OF LAW by Michelle Kosilek. (Sulman, Joseph) (Entered: 06/09/2006)
231 Response by Kathleen M. Dennehy Concerning the Trial Deposition of Loren Schechter, M.D.. (McFarland, Richard) (Entered: 06/09/2006)
233 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/9/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/12/2006)
Judge Mark L. Wolf : Electronic ORDER entered denying 236 Motion for Directed Verdict. For the reasons stated in court on June 9, 2006 this motion is hereby DENIED. (O'Leary, Dennis) (Entered: 06/14/2006)
232 MEMORANDUM OF LAW by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 06/11/2006)
234 Objection by Kathleen M. Dennehy To Production of Notes of Expert Witness That Include Conversations With Defendant's Counsel. (McFarland, Richard) (Entered: 06/12/2006)
235 MOTION to Compel Production of Cynthia Osborne's Notes by Michelle Kosilek.(Cohen, Frances) (Entered: 06/12/2006)
237 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/12/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/13/2006)
236 MOTION for Directed Verdict by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 06/13/2006)
238 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/13/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/13/2006)

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239 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/14/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/15/2006)
240 MEMORANDUM OF LAW by Michelle Kosilek. (Sulman, Joseph) (Entered: 06/15/2006)
241 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/15/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/16/2006)
242 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/16/2006. (Court Reporter ROMANOW.) (O'Leary, Dennis) (Entered: 06/19/2006)
243 MEMORANDUM OF LAW by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 06/19/2006)
244 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/19/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/20/2006)
246 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/20/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/21/2006)
245 MEMORANDUM OF LAW by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 06/21/2006)
Judge Mark L. Wolf : Electronic ORDER entered finding as moot 176 Motion to Correct (O'Leary, Dennis) (Entered: 06/21/2006)
247 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/21/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 06/22/2006)
248 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 6/23/2006. (Court Reporter Romanow.) (O'Leary, Dennis) Additional attachment(s) added on 6/26/2006 (O'Leary, Dennis). (Entered: 06/23/2006)
251 Judge Mark L. Wolf : ORDER entered regarding experts(O'Leary, Dennis) (Entered: 06/30/2006)
249 RESPONSE TO ORDER TO SHOW CAUSE by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 06/26/2006)
250 RESPONSE TO ORDER TO SHOW CAUSE by Michelle Kosilek. (Sulman, Joseph) (Entered: 06/26/2006)

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252 Judge Mark L. Wolf : ORDER entered establishing various filing deadlines and setting a Scheduling Conference for 8/23/2006 10:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 06/30/2006)
253 First RESPONSE to Motion re 252 filed by Kathleen M. Dennehy. (Kennedy, Joan) Text Modified on 7/10/2006 to correct document linkage (Boyce, Kathy). (Entered: 07/07/2006)
254 Supplemental RESPONSE to Motion re 252 Order filed by Kathleen M. Dennehy. (Kennedy, Joan) Text Modified on 7/10/2006 to correct document linkage (Boyce, Kathy). (Entered: 07/07/2006)
255 Response by Michelle Kosilek to 252 Order, Set Deadlines/Hearings. (Sulman, Joseph) (Entered: 07/07/2006)
Notice of correction to docket made by Court staff. Correction: Document Nos. 253, 254, Response and Supplemental Response to 252 Court Order corrected because: as the e-filings filed on 7/7/06 were inadvertently linked to the wrong documents when e-filed and have subsequently been corrected. (Boyce, Kathy) (Entered: 07/10/2006)
256 Supplemental Response by Kathleen M. Dennehy to 252 Order, Set Deadlines/Hearings. (Attachments: # 1)(McFarland, Richard) (Entered: 07/21/2006)
257 MOTION Testimony transcripts by Michelle Kosilek.(Sulman, Joseph) (Entered: 07/24/2006)
Judge Mark L. Wolf : Electronic ORDER entered granting 257 Motion Preparation of trial testimony transcripts (O'Leary, Dennis) (Entered: 07/25/2006)
258 Excerpt TRANSCRIPT of Trial (Testimony of Superintendent Luis S. Spencer) held on June 9, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/04/2006)
259 Judge Mark L. Wolf : ORDER entered. It is hereby ORDERED that:1. Counsel shall confer and, by August 18, 2006, inform thecourt:(a) Whether they agree that any of the foregoingindividuals would be suitable if the court decides to appoint anexpert pursuant to Rule 706 and, if not, the reasons for theirobjections.(b) Provide additional background information concerningany candidate a party regards as suitable for appointment.2. The issue of the possible appointment of an expert,pursuant to Rule 706, will be addressed further at the August 23,2006 conference.(O'Leary, Dennis) (Entered: 08/04/2006)

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260 Excerpt TRANSCRIPT of Trial (Testimony of Superintendent Lynne Bissonette) held on June 21, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/04/2006)
Judge Mark L. Wolf : Electronic ORDER entered granting 206 Motion for Leave to File; granting 209 Motion for Leave to File; finding as moot 235 Motion to Compel (O'Leary, Dennis) (Entered: 08/08/2006)
261 EXCERPT TRANSCRIPT of Closing Arguments held on June 23, 2006 and June 27, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/16/2006)
262 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 8/23/2006. (O'Leary, Dennis) (Entered: 08/17/2006)
263 TRANSCRIPT of Trial (Testimony of George R. Brown, MD held on May 30 and 31, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/21/2006)
264 TRANSCRIPT of Trial (Testimony of Kenneth Appelbaum, M.D) held on June 1, 2 and 5, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/21/2006)
265 TRANSCRIPT of Trial (Testimony of Randi Kaufman) held on June 5 and 6, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/21/2006)
266 TRANSCRIPT of Trial (Testimony of Mark Burrowes) held on June 6 and 7, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/21/2006)

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267 TRANSCRIPT of Trial (Testimony of Cynthia Osborne) held on June 8 and 14, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/21/2006)
268 TRANSCRIPT of Trial (Testimony of Commissioner Kathleen Dennehy) held on June 16, 19, and 20, 2006 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/21/2006)
269 RESPONSE TO ORDER TO SHOW CAUSE by Michelle Kosilek. (Sulman, Joseph) (Entered: 08/21/2006)
270 Proposed Findings of Fact by Kathleen M. Dennehy. (Attachments: # 1)(McFarland, Richard) (Entered: 08/21/2006)
271 Response by Kathleen M. Dennehy to Order of August 4, 2006. (McFarland, Richard) (Entered: 08/21/2006)
272 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) Additional attachment(s) added on 8/22/2006 (Boyce, Kathy). (Entered: 08/21/2006)
273 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) Modified on 8/22/2006 for the docket to reflect that this document (pages 82 - 152 with Exhibit A) is part two of Document No. 272 (Boyce, Kathy). (Entered: 08/21/2006)
274 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 8/23/2006. (Court Reporter Patrisso.) (O'Leary, Dennis) (Entered: 08/23/2006)
275 Judge Mark L. Wolf : ORDER entered. For the reasons stated in court on August 23, 2006, it ishereby ORDERED that:1. With the agreement of counsel for the parties and forUniversity of Massachusetts Medical School ("UMass"), UMass shall,by September 6, 2006, submit to defendant Kathleen Dennehy, withcopies to counsel for plaintiff Michelle Kosilek and the court,responses to the questions stated in paragraph 2 of the June 29,2006 Order. If UMass will not be able to do so by September 6,2006, it shall advise the court as soon as possible and state whenit will be feasible to submit its response.2. Testimony in this case will resume at 9:30 a.m., onSeptember 13, 2006, with a witness from UMass, to be followed, ifnecessary, by testimony by Drs. Kaufman and/or Kapila on September14 and 15, 2006. Plaintiff's counsel shall

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consult with counsel forDrs. Kaufman and Kapila and inform the court as promptly aspossible concerning their availability to testify on those dates.3. The parties shall have no further direct or indirectcontact with any individual identified as a potential courtappointedexpert.(O'Leary, Dennis) (Entered: 08/23/2006)
276 STATUS REPORT by University of Massachusetts Medical School. (O'Shea, Stephen) (Entered: 09/01/2006)
277 Judge Mark L. Wolf : ORDER entered. Attached are letters that the court has sent today to Dr. PaulFink and Dr. Stephen Levine concerning their willingness to beconsidered for appointment pursuant to Federal Rule of Evidence706. (Attachments: # 1 # 2)(O'Leary, Dennis) (Entered: 09/01/2006)
278 TRANSCRIPT of Status Conference held on August 23, 2006 before Judge Wolf. Court Reporter: Marcia G. Patrisso. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-8728 or the Clerk's Office. (Scalfani, Deborah) (Entered: 09/01/2006)
279 Judge Mark L. Wolf : ORDER entered. re 277 Order,, 276 Status Report filed by University of Massachusetts Medical School, Status Conference set for 9/13/2006 10:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Response Deadline 9/12/2006 at 10:00 AM.(O'Leary, Dennis) (Entered: 09/11/2006)
280 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 9/13/2006. (O'Leary, Dennis) (Entered: 09/12/2006)
281 RESPONSE TO ORDER TO SHOW CAUSE by Michelle Kosilek. (Sulman, Joseph) (Entered: 09/12/2006)
282 Response by Kathleen M. Dennehy to September 12, 2006 Court Order. (McFarland, Richard) (Entered: 09/12/2006)
283 Judge Mark L. Wolf : ORDER entered. As the parties have not, pursuant to the September 11, 2006Order, registered any objection, it is hereby ORDERED that Drs.Appebaum, Kaufman, and Kapila may read the transcript ofCommissioner Dennehy's testimony.(O'Leary, Dennis) (Entered: 09/12/2006)
284 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 9/13/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 09/14/2006)
285 Response by University of Massachusetts Medical School To Commissioner Dennehy. (O'Shea, Stephen) (Entered: 09/18/2006)

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286 MOTION clarification by Michelle Kosilek.(Sulman, Joseph) (Entered: 09/19/2006)
287 NOTICE of Hearing : Status Conference set for 9/29/2006 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 09/22/2006)
Judge Mark L. Wolf : Electronic ORDER entered granting 286 Motion for Clarificatrion. At this point, because they are jointly advising UMASS, Drs. Kapila and Kaufman may confer and then counsel may meet with them together. (O'Leary, Dennis) (Entered: 09/25/2006)
288 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 10/3/06 through 10/5/06. (O'Leary, Dennis) (Entered: 09/28/2006)
ElectronicClerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 9/29/2006. Attys Sulman and Cohen for the plaintiff, Attys McFarland and Kennedy for the defendant and Atty O'Shea on behalf of UMASS Medical. Court condusts status conference setting the schedule for the resumed testimony scheduled to start on 10/3/06. Court also conducted telphone conference with potential court appointed expert without atty O'Shea present. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 10/04/2006)
289 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 10/3/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 10/04/2006)
296 TRANSCRIPT of Proceedings held on 10/3/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 10/16/2006)
290 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 10/4/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 10/04/2006)
297 TRANSCRIPT of Proceedings held on 10/47/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 10/16/2006)
Judge Mark L. Wolf : Electronic ORDER entered finding as moot 200 Motion in Limine (O'Leary, Dennis) (Entered: 10/05/2006)
291 MOTION Informative motion by Michelle Kosilek. (Attachments: # 1 Exhibit # 2 Exhibit # 3)(Sulman, Joseph) (Entered: 10/05/2006)

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292 Letter/request (non-motion) from Defendant Kathleen M. Dennehy. (McFarland, Richard) (Entered: 10/06/2006)
293 MEMORANDUM OF LAW by Michelle Kosilek. (Sulman, Joseph) (Entered: 10/11/2006)
295 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Scheduling Conference held on 10/11/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 10/13/2006)
294 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 10/17/2006 - 10/18/2006. (O'Leary, Dennis) (Entered: 10/12/2006)
298 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 10/17/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 10/17/2006)
299 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 10/18/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 10/18/2006)
300 Response by Kathleen M. Dennehy to October 18, 2006 Order. (McFarland, Richard) (Entered: 10/20/2006)
301 Response by Michelle Kosilek October 18, 2006 Order. (Sulman, Joseph) (Entered: 10/20/2006)
302 TRANSCRIPT of Proceedings held on 10/17/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 10/30/2006)
303 TRANSCRIPT of Proceedings held on 10/18/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 10/30/2006)
304 Judge Mark L. Wolf : ORDER appointing an expert entered. (O'Leary, Dennis) (Entered: 10/31/2006)
305 NOTICE of Change of Address by Frances S. Cohen (Cohen, Frances) (Entered: 11/02/2006)
306 NOTICE of Hearing : Status Conference set for 11/14/2006 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 11/07/2006)

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ElectronicClerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 11/14/2006. Attys Cohen and Sulman for the plaintiff. Attys mcfarland and Kennedy for the defendant. Dr. Levine, court appointed expert participating by telephone. Court goes over any questions the expert might have with regard to his role. Court orders tha parties to provide the requested MMPI data by Friday, November 17, 2006. court establishes a schedule for the expert. report due by December 1, 2006. Parties to respond to the report by 12:00 pm on December 6, 2006. further status conference set for December 7, 2006 at 9:00 am. Testimony of the expert to begin on December 19, 2006 at 9:00 am. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 11/14/2006)
307 Judge Mark L. Wolf : ORDER entered. Establishing various deadlines and hearings. Bench Trial set for 12/19/2006 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Status Conference set for 12/7/2006 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 11/14/2006)
308 TRANSCRIPT of Proceedings held on 11/14/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 11/16/2006)
309 DESIGNATION OF EXPERTS by Michelle Kosilek. (Cohen, Frances) (Entered: 11/17/2006)
310 NOTICE re letter sent to Dr. Levine w/o attachments. (O'Leary, Dennis) (Entered: 11/21/2006)
311 Sealed Document. (O'Leary, Dennis) (Entered: 11/21/2006)
312 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 12/19/2006. (O'Leary, Dennis) (Entered: 11/29/2006)
313 Judge Mark L. Wolf : ORDER entered. Attached is the November 27, 2006 report of Dr. StephenLevine. As ordered on November 14, 2006, the parties shall, by12:00 noon on December 6, 2006, inform the court whether or notthey request the deposition of Dr. Levine and a telephoneconference with him shall, in any event, be held on December 7,2006, at 9:00 a.m. (Attachments: # 1)(O'Leary, Dennis) (Entered: 11/29/2006)
314 RESPONSE TO ORDER TO SHOW CAUSE by Michelle Kosilek. (Sulman, Joseph) (Entered: 11/30/2006)

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315 Response by Kathleen M. Dennehy to November 29, 2006 Order Regarding Deposition of Stephen B. Levine, M.D.. (McFarland, Richard) (Entered: 12/06/2006)
316 RESPONSE TO ORDER TO SHOW CAUSE by Michelle Kosilek. (Sulman, Joseph) (Entered: 12/06/2006)
ElectronicClerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 12/7/2006. Attys Coehn & Sulman for the plaintiff. Attys McFarland & Kennedy for the defendant. Court goes over the plaintiff's request to depose the court appointed independent expert. Court will allow the deposition. Plainitiff's counsel will go to Cleveland for the depo. Defense counsel will either travel to Cleveland or participate via video conference. Court appointed expert joins in the conference by telephone. Court orders the deposition to take place on December 14, 2006 and advises the court appointed expert with the plans for the deposition. Trial testimony will remain scheduled for 12/19/06 at 9:00 AM. Court directs the clerk to check whether the expert would qualify for government travel rates. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 12/08/2006)
317 Judge Mark L. Wolf : ORDER entered. For the reasons stated on December 7, 2006, it is herebyORDERED:1. Plaintiff Michelle Kosilek's request for the depositionof Dr. Stephen Levine is, pursuant to Federal Rule of Evidence 706,ALLOWED.2. Dr. Levine shall be deposed in Ohio, on December 14,2006, for up to seven hours.3. The parties shall cause an expedited transcript to beprepared and, as they agreed, a copy shall be provided to the courtbefore December 19, 2006.4. Dr. Levine's trial testimony shall commence on December19, 2006, at 9:00 a.m.5. A copy of this Order shall be sent to Dr. Levine.(O'Leary, Dennis) (Entered: 12/08/2006)
318 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial held on 12/19/2006. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 12/20/2006)
319 Judge Mark L. Wolf : ORDER entered. Status Report due by 1/5/2007. Bench Trial set for 1/11/2007 09:00 AM before Chief Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 12/20/2006)
320 MOTION for Leave to File Trial Subpoena/Rule 34 Request by Michelle Kosilek. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 12/28/2006)
321 TRANSCRIPT of Proceedings held on 12/19/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the

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court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 01/04/2007)
322 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 1/11/2007. (O'Leary, Dennis) (Entered: 01/04/2007)
323 Assented to MOTION for Extension of Time to January 12, 2006 to Respond to order by Michelle Kosilek.(Sulman, Joseph) (Entered: 01/05/2007)
324 MOTION for Extension of Time to 1/12/2007 to File Response/Reply as to 319 Order, Set Deadlines/Hearings by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 01/05/2007)
Judge Mark L. Wolf : Electronic ORDER entered granting 323 Motion for Extension of Time, granting 324 Motion for Extension of Time to File Response/Reply (O'Leary, Dennis) (Entered: 01/08/2007)
ELECTRONIC NOTICE Cancelling Hearing. Hearing cancelled: Bench Trial scheduled for 1/11/2007 (O'Leary, Dennis) (Entered: 01/08/2007)
325 MOTION to Quash by Kathleen M. Dennehy.(Kennedy, Joan) (Entered: 01/09/2007)
326 MEMORANDUM in Support re 325 MOTION to Quash filed by Kathleen M. Dennehy. (Attachments: # 1 Exhibit Inmate Medical Records# 2 Exhibit Peer Review Inmate Suicide Policy)(Kennedy, Joan) Additional attachment(s) added on 1/10/2007 (Boyce, Kathy). (Entered: 01/09/2007)
Notice of correction to docket made by Court staff. Correction: Document No. 326, Memorandum in Support of Motion to Quash corrected because: to attach a corrected pdf document to Exhibit B as the previous exhibit was inadvertently attached incorrectly (Boyce, Kathy) (Entered: 01/10/2007)
327 RESPONSE TO ORDER TO SHOW CAUSE by Michelle Kosilek. (Sulman, Joseph) (Entered: 01/12/2007)
328 RESPONSE TO ORDER TO SHOW CAUSE by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 01/12/2007)
329 Opposition re 325 MOTION to Quash filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 01/23/2007)
330 NOTICE of Hearing on Motion 325 PLEASE TAKE NOTICE that the above-entitled case has been set for a MOTION HEARING on the Defendant?s Motion to Quash and a STATUS/SCHEDULING CONFERENCE on JANUARY 30, 2007 at 11:00 A.M. before Judge

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WOLF in Courtroom # 10 on the 5th floor. (O'Leary, Dennis) (Entered: 01/24/2007)
331 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Status Conference held on 1/30/2007. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 01/30/2007)
332 Judge Mark L. Wolf : ORDER entered. Bench Trial set for 3/14/2007 09:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Motion Hearing set for 3/7/2007 11:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf.(O'Leary, Dennis) (Entered: 01/30/2007)
333 MOTION for Clarification re 332 Order, Set Hearings by Kathleen M. Dennehy. (Attachments: # 1 Exhibit January 30, 2007 Order)(Kennedy, Joan) (Entered: 02/05/2007)
Judge Mark L. Wolf : Electronic ORDER entered denying 333 Motion for Clarification. As the defendant has repeatedly represented that UMMS is responsible for making medical decisions on behalf of the defendant for the purposes of this case, the court does not deem any amendment to the Jan. 30, 2007 order to be necessary or appropriate. (O'Leary, Dennis) (Entered: 02/12/2007)
334 NOTICE of Appearance by Anthony R. Brighton on behalf of University of Massachusetts Medical School (Brighton, Anthony) (Entered: 02/12/2007)
335 MOTION lift sequestration order by University of Massachusetts Medical School.(Brighton, Anthony) (Entered: 02/12/2007)
Judge Mark L. Wolf : Electronic ORDER entered granting 335 Motion Lifting of Sequestration Order. ALLOWED. The Sequestration Order is hereby AMENDED to permit the activities required by paragraph 2(a) of the January 30, 2007 Order. (O'Leary, Dennis) (Entered: 02/13/2007)
336 MOTION Informative Motion re 332 Order, Set Hearings by Michelle Kosilek. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 02/13/2007)
337 Disclosure pursuant to Rule 26 by Michelle Kosilek.(Sulman, Joseph) Additional attachment(s) added on 2/20/2007 (O'Leary, Dennis). (Entered: 02/16/2007)
Judge Mark L. Wolf : Electronic ORDER entered granting 336 Informative Motion. Dr. kaufman may review Dr. Levine's testimony. (O'Leary, Dennis) (Entered: 02/20/2007)
338 Letter/request (non-motion) from Arthur Brewer, M.D.. (O'Shea, Stephen) (Entered: 02/22/2007)

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339 MOTION in Limine To Exclude Additional Expert Testimony by Kathleen M. Dennehy.(McFarland, Richard) (Entered: 02/23/2007)
340 MEMORANDUM in Support re 339 MOTION in Limine To Exclude Additional Expert Testimony filed by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 02/23/2007)
341 Report On Number Of Suicides And Prevented Suicides Response by Kathleen M. Dennehy to 332 Order, Set Hearings. (Attachments: # 1)(McFarland, Richard) (Entered: 02/23/2007)
342 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 3/7/2007. (O'Leary, Dennis) (Entered: 02/27/2007)
343 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 3/14/2007. (O'Leary, Dennis) (Entered: 02/27/2007)
344 Opposition re 339 MOTION in Limine To Exclude Additional Expert Testimony filed by Michelle Kosilek. (Attachments: # 1 Exhibit UMass Letter to Court)(Sulman, Joseph) (Entered: 03/01/2007)
345 MOTION to Continue Rebuttal Testimony to March 9 and 30, 2007 by Michelle Kosilek.(Sulman, Joseph) (Entered: 03/06/2007)
346 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Motion Hearing held on 3/7/2007 re 339 MOTION in Limine To Exclude Additional Expert Testimony filed by Kathleen M. Dennehy,, 345 MOTION to Continue Rebuttal Testimony to March 9 and 30, 2007 filed by Michelle Kosilek,. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 03/07/2007)
347 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 3/15/2007. (O'Leary, Dennis) (Entered: 03/07/2007)
348 Judge Mark L. Wolf : ORDER entered For the reasons stated in court on March 7, 2007, it is herebyORDERED that:1. Defendant's Motion in Limine to Exclude AdditionalTestimony (Docket No. 339) is DENIED without prejudice todefendant's right to object to particular questions or lines ofquestioning pursuant to, among other things, Federal Rule ofEvidence 403.2. On March 15, 2007, the testimony of Dr. Randi Kaufmanshall commence at 10:00 a.m. and the testimony of Dr. MarshallForstein shall commence at 2:00 p.m.3. Counsel shall confer and be prepared to propose at theMarch 15, 2007 hearing a schedule for supplementing the previouslyfiled proposed findings of fact and conclusions of law. (O'Leary, Dennis) (Entered: 03/07/2007)
349 MOTION Admit Evidence by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Sulman, Joseph) (Entered: 03/13/2007)

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352 Clerk's Notes for proceedings held before Judge Mark L. Wolf : Bench Trial completed on 3/15/2007. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 03/23/2007)
350 STIPULATION by Michelle Kosilek, Kathleen M. Dennehy. (McFarland, Richard) (Entered: 03/16/2007)
351 Judge Mark L. Wolf : ORDER entered regarding a letter received by the plaintiff.(O'Leary, Dennis) (Entered: 03/20/2007)
353 MEMORANDUM OF LAW by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit A)(Sulman, Joseph) (Entered: 03/28/2007)
354 Judge Mark L. Wolf : ORDER entered. For the reasons stated in court on March 15, 2007, it ishereby ORDERED that: 1. The parties shall file supplemental Findings of Factand Conclusions of Law by May 15, 2007. 2. If needed, further closing arguments will be held on June 6 or 8, 2007, at 9:00 a.m.(O'Leary, Dennis) (Entered: 03/28/2007)
355 TRANSCRIPT of Proceedings held on 3/15/2007 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 03/29/2007)
356 NOTICE by Kathleen M. Dennehy of Successor Defendant (McFarland, Richard) (Entered: 05/02/2007)
357 TRANSCRIPT of Proceedings held on 5/25/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
358 TRANSCRIPT of Proceedings held on 5/30/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
359 TRANSCRIPT of Proceedings held on 5/31/3006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
360 TRANSCRIPT of Proceedings held on 6/1/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the

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court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
361 TRANSCRIPT of Proceedings held on 6/2/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
362 TRANSCRIPT of Proceedings held on 6/5/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
363 TRANSCRIPT of Proceedings held on 6/6/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
364 TRANSCRIPT of Proceedings held on 6/7/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
365 TRANSCRIPT of Proceedings held on 6/8/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
366 TRANSCRIPT of Proceedings held on 6/9/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
367 TRANSCRIPT of Proceedings held on 6/12/2007 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
368 TRANSCRIPT of Proceedings held on 6/13/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the

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court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
369 TRANSCRIPT of Proceedings held on 6/14/2007 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
370 TRANSCRIPT of Proceedings held on 6/15/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
371 TRANSCRIPT of Proceedings held on 6/16/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
372 TRANSCRIPT of Proceedings held on 6/19/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
373 TRANSCRIPT of Proceedings held on 6/20/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
374 TRANSCRIPT of Proceedings held on 6/21/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
375 TRANSCRIPT of Proceedings held on 6/23/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
376 TRANSCRIPT of Proceedings held on 6/27/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the

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court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
377 TRANSCRIPT of Proceedings held on 9/13/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
378 TRANSCRIPT of Proceedings held on 10/11/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
379 TRANSCRIPT of Proceedings held on 12/7/2006 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
380 TRANSCRIPT of Proceedings held on 1/30/2007 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
381 TRANSCRIPT of Proceedings held on 3/7/2007 before Judge Wolf. Court Reporter: Romanow. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (O'Leary, Dennis) (Entered: 05/07/2007)
Judge Mark L. Wolf : Electronic ORDER entered finding as moot 291 Motion, finding as moot 320 Motion for Leave to File;, finding as moot 325 Motion to Quash (O'Leary, Dennis) (Entered: 05/08/2007)
382 Proposed Findings of Fact by Kathleen M. Dennehy. (McFarland, Richard) (Entered: 05/15/2007)
383 MOTION for Leave to File Supplemental Trial Record by Kathleen M. Dennehy. (Attachments: # 1)(McFarland, Richard) (Entered: 05/15/2007)
384 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/15/2007)

05/15/2007 05/15/2007 05/15/2007 05/15/2007 05/15/2007 05/15/2007 05/30/2007 05/30/2007
05/31/2007 05/31/2007 06/04/2007 06/06/2007
08/08/2007
08/16/2007 08/20/2007

385 MOTION Informative Motion Proposed Findings of Fact by Michelle Kosilek.(Sulman, Joseph) (Entered: 05/15/2007)
386 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/15/2007)
387 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/15/2007)
388 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/15/2007)
389 Proposed Findings of Fact by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/15/2007)
390 Assented to MOTION for Leave to File Supplemental Trial Record by Michelle Kosilek.(Sulman, Joseph) (Entered: 05/15/2007)
391 MOTION New Cases by Michelle Kosilek.(Sulman, Joseph) (Entered: 05/30/2007)
392 Response by James R. Bender to May 30, 2007 Court Request for Citations to New Cases Cited in Defendant's Revised Proposed Findings of Fact and Conclusions of Law. (McFarland, Richard) (Entered: 05/30/2007)
393 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 6/8/2007. (O'Leary, Dennis) (Entered: 05/31/2007)
394 MOTION for Clarification by Michelle Kosilek.(Cohen, Frances) (Entered: 05/31/2007)
395 MOTION to Continue Closing Arguments at the Request of Plaintiff's counsel by Michelle Kosilek.(Cohen, Frances) (Entered: 06/04/2007)
Judge Mark L. Wolf : Electronic ORDER entered granting 395 Motion to Continue. ALLOWED. The hearing will be rescheduled for August or September, 2007. (O'Leary, Dennis) (Entered: 06/06/2007)
396 NOTICE of Hearing :Bench Trial/Closing Arguments set for 8/31/2007 10:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 08/08/2007)
397 MOTION clarification for closing arguments by Michelle Kosilek.(Sulman, Joseph) (Entered: 08/16/2007)
398 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 8/31/2007. (O'Leary, Dennis) (Entered: 08/20/2007)

08/20/2007 08/23/2007 08/27/2007 08/27/2007 08/27/2007 09/05/2007 09/05/2007 09/12/2007 09/12/2007
09/12/2007 09/19/2007 09/19/2007 11/16/2007

399 MOTION Supplement Record by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit A - Classification Report)(Sulman, Joseph) (Entered: 08/20/2007)
400 Assented to MOTION supplement record by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit A, Request for Response)(Sulman, Joseph) (Entered: 08/23/2007)
401 RESPONSE to Motion re 397 MOTION clarification for closing arguments filed by James R. Bender. (McFarland, Richard) (Entered: 08/27/2007)
402 Opposition re 399 MOTION Supplement Record filed by James R. Bender. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 08/27/2007)
403 REPLY to Response to Motion re 399 MOTION Supplement Record filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 08/27/2007)
ELECTRONIC NOTICE of Hearing :Bench Trial/Closing Arguments set for 9/12/2007 09:30 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 09/05/2007)
404 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 9/12/2007. (O'Leary, Dennis) (Entered: 09/05/2007)
405 MEMORANDUM OF LAW by Michelle Kosilek. (Cohen, Frances) (Entered: 09/12/2007)
406 Clerk's Notes for proceedings held before Judge Mark L. Wolf : granting 400 Motion to supplement the record.; Bench Trial completed on 9/12/2007. (Court Reporter Romanow.) (O'Leary, Dennis) (Entered: 09/12/2007)
407 Updated Exhibit List from bench trial held on 9/12/07. (O'Leary, Dennis) (Entered: 09/12/2007)
408 Response by James R. Bender To The Court Regarding Plaintiff's Motion to Exclude Expert Reports. (McFarland, Richard) (Entered: 09/19/2007)
409 Response by Michelle Kosilek Regarding Court's request for Parties to Confer about Plaintiff's Motion in Limine. (Sulman, Joseph) (Entered: 09/19/2007)
410 TRANSCRIPT of Bench Trial held on September 12, 2007 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained by the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/737-0370 or the Clerk's Office. (Scalfani, Deborah) (Entered: 11/16/2007)

01/08/2008 01/10/2008 01/18/2008 02/25/2008
02/25/2008 02/29/2008
03/03/2008 03/04/2008 03/04/2008 03/10/2008

411 MOTION Informative Motion Requesting Status Conference by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Sulman, Joseph) (Entered: 01/08/2008)
412 NOTICE by James R. Bender of Successor Defendant (McFarland, Richard) (Entered: 01/10/2008)
413 RESPONSE to Motion re 411 MOTION Informative Motion Requesting Status Conference filed by Harold W. Clarke, Harold W. Clarke. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 01/18/2008)
414 REPLY to Response to 411 MOTION Informative Motion Requesting Status Conference and 413 Response to Motion Regarding Informative Motion filed by Michelle Kosilek. (Cohen, Frances) Modified on 2/26/2008 to create document relationship to document No. 413. (Boyce, Kathy). (Entered: 02/25/2008)
415 AFFIDAVIT of Michelle L. Kosilek by Michelle Kosilek. (Cohen, Frances) (Entered: 02/25/2008)
416 Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. Accordingly, it is hereby ORDERED that: 1. The Informative Motion (Docket No. 411) is ALLOWED. 2. A hearing to address the issues raised in the Informative Motion, as amplified in this Memorandum, shall be held on March 13, 2008, at 11:00 a.m. Defendant Clarke shall attend. If, however, he has an irreconcilable conflict on that date, he shall, by March 7, 2008, file a motion to reschedule which provides alternative dates in the near future for the hearing. (O'Leary, Dennis) (Entered: 02/29/2008)
417 MOTION for Discovery Leave to Serve Subpoenas by Michelle Kosilek.(Sulman, Joseph) (Entered: 03/03/2008)
418 MOTION to Continue hearing by Harold W. Clarke.(McFarland, Richard) (Entered: 03/04/2008)
419 RESPONSE to Motion re 418 MOTION to Continue hearing filed by Michelle Kosilek. (Cohen, Frances) (Entered: 03/04/2008)
420 Chief Judge Mark L. Wolf: ORDER entered. Defendant Harold W. Clarke's Motion to Reschedule Hearing (Docket No. 418) is hereby ALLOWED. The hearing shall be held on April 1, 2008, at 10:30 a.m. The court has not decided whether to require Mr. Clarke to testify in this case. Nevertheless, plaintiff Michelle Kosilek's Motion for Leave to Serve Subpoenas on the states of Washington and New Hampshire and/or their respective departments of corrections for documents and records relating to the transfer and housing of transsexual inmates (Docket No. 417) is also hereby ALLOWED. (O'Leary, Dennis) (Entered: 03/10/2008)

03/11/2008
03/12/2008 03/17/2008 03/24/2008 03/31/2008 04/01/2008 04/01/2008

421 Chief Judge Mark L. Wolf: ORDER entered granting 349 Motion ; granting 383 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document.; granting 385 Motion ; granting 390 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document.; granting 391 Motion ; finding as moot 394 Motion for Clarification ; granting in part and denying in part 399 Motion (O'Leary, Dennis) (Entered: 03/11/2008)
422 REPLY to Response to 411 MOTION Informative Motion Requesting Status Conference filed by Harold W. Clarke. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 03/12/2008)
423 EXHIBIT 101 Supplement by Harold W. Clarke. (Attachments: # 1 Supplement)(McFarland, Richard) (Entered: 03/17/2008)
424 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 4/1/2008. (O'Leary, Dennis) (Entered: 03/24/2008)
425 MOTION Informative Motion Error noted in Post-Trial Brief by Michelle Kosilek.(Sulman, Joseph) (Entered: 03/31/2008)
426 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Status Conference held on 4/1/2008. (Court Reporter: romanow.) (O'Leary, Dennis) (Entered: 04/01/2008)
427 Chief Judge Mark L. Wolf: ORDER entered. As stated at the April 1, 2008 conference, it is hereby ORDERED that: 1. Plaintiff Michelle Kosilek ("Kosilek") shall, by April 4, 2008, identify the trial transcripts and exhibits on which Kosilek requests that the Commissioner of the Department of Correction ("Commissioner") focus in preparation for his testimony. 2. By April 11, 2008, the Commissioner shall inform the court of the amount of time he requests to prepare for his testimony.3. By May 2, 2008, the parties shall jointly report as to whether the medical issues identified in plaintiff's Informative Motion (Docket No. 411) have been resolved and, if not, state their respective positions concerning them. 4. The trial, at which the Commissioner will testify, will continue on May 12, 2008, at 9:00 a.m., and continue on May 13 and 14, 2008, if necessary, unless more time is needed for the Commissioner to prepare properly for this testimony. The court may direct the Commissioner to submit a brief statement of his conclusions before he testifies. (O'Leary, Dennis) (Entered: 04/01/2008)

04/04/2008 04/11/2008 04/16/2008 04/22/2008
05/02/2008 05/07/2008 05/07/2008 05/12/2008 05/13/2008 05/15/2008 05/21/2008 05/30/2008 06/02/2008 06/02/2008

428 NOTICE by Michelle Kosilek (Attachments: # 1 Exhibit letter to defense counsel)(Sulman, Joseph) (Entered: 04/04/2008)
429 Response by Harold W. Clarke to 427 Memorandum & ORDER, Order (McFarland, Richard) Text of docket entry modified on 4/25/2008 (Boyce, Kathy). (Entered: 04/11/2008)
430 Chief Judge Mark L. Wolf: ORDER entered. Accordingly, it is hereby ORDERED that the Commissioner shallsubmit a brief statement of his conclusions by May 7, 2008.(O'Leary, Dennis) (Entered: 04/16/2008)
431 TRANSCRIPT of Status Conference held on April 1, 2008 before Judge Wolf. Court Reporter: Richard H. Romanow. The original transcripts are maintained by the Clerk's Office. Copies may be obtained by contacting the court reporter at bulldog@richromanow.com or the Clerk's Office. (Scalfani, Deborah) (Entered: 04/22/2008)
432 STATUS REPORT by Michelle Kosilek. (Sulman, Joseph) (Entered: 05/02/2008)
433 Response by Harold W. Clarke to 430 Order. (Attachments: # 1 Supplement)(McFarland, Richard) (Entered: 05/07/2008)
434 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 5/12 - 5/14/2008. (O'Leary, Dennis) (Entered: 05/07/2008)
435 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Bench Trial held on 5/12/2008. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 05/12/2008)
436 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Bench Trial completed on 5/13/2008. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 05/14/2008)
437 Supplemental Trial Witness/Exhibit List. (O'Leary, Dennis) (Entered: 05/15/2008)
438 NOTICE of Change of Address or Firm Name by Frances S. Cohen (Cohen, Frances) (Entered: 05/21/2008)
439 Joint MOTION for Extension of Time to file updated Request for Findings by Michelle Kosilek.(Cohen, Frances) (Entered: 05/30/2008)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 439 Motion for Extension of Time to file Revised Proposed Findings. (O'Leary, Dennis) (Entered: 06/02/2008)
440 MOTION for Leave to File Classification Manual, MOTION for Sanctions ( Responses due by 6/16/2008) by Michelle Kosilek.

06/09/2008
06/09/2008
06/09/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/16/2008

(Attachments: # 1 Exhibit Exhibit A, # 2Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Sulman, Joseph) (Entered: 06/02/2008)
441 Transcript of Bench Trial (Continued) held on May 12, 2008, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 6/27/2008. Redacted Transcript Deadline set for 7/7/2008. Release of Transcript Restriction set for 9/4/2008. (Scalfani, Deborah) (Entered: 06/09/2008)
442 Transcript of Bench Trial (Continued) held on May 13, 2008, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 6/27/2008. Redacted Transcript Deadline set for 7/7/2008. Release of Transcript Restriction set for 9/4/2008. (Scalfani, Deborah) (Entered: 06/09/2008)
443 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 06/09/2008)
444 Proposed Findings of Fact by Harold W. Clarke. (McFarland, Richard) (Entered: 06/13/2008)
445 Second Proposed Findings of Fact by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Sulman, Joseph) (Entered: 06/13/2008)
446 Proposed Findings of Fact by Harold W. Clarke. (McFarland, Richard) (Entered: 06/13/2008)
447 Proposed Findings of Fact by Harold W. Clarke. (McFarland, Richard) (Entered: 06/13/2008)
448 Proposed Findings of Fact by Harold W. Clarke. (McFarland, Richard) (Entered: 06/13/2008)
449 Proposed Findings of Fact by Harold W. Clarke. (McFarland, Richard) (Entered: 06/13/2008)
450 RESPONSE to Motion re 440 MOTION for Leave to File Classification Manual MOTION for Sanctions filed by Harold W. Clarke. (McFarland, Richard) (Entered: 06/13/2008)
ELECTRONIC NOTICE issued requesting courtesy copy for 445 Proposed Findings of Fact, 444 Proposed Findings of Fact, 448 Proposed Findings of Fact, 449 Proposed Findings of

07/08/2008
08/08/2008 10/16/2008 10/28/2008 10/31/2008 12/12/2008 01/15/2009 01/26/2009 02/05/2009
03/05/2009 03/26/2009
05/20/2009
05/20/2009

Fact, 446 Proposed Findings of Fact, 447 Proposed Findings of Fact. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 6/20/2008. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF.(O'Leary, Dennis) (Entered: 06/16/2008)
451 NOTICE by Harold W. Clarke of Clarification of Testimony (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 07/08/2008)
452 NOTICE by Harold W. Clarke of Clarification of Testimony (McFarland, Richard) (Entered: 08/08/2008)
453 NOTICE of Withdrawal of Appearance by Joseph L. Sulman (Sulman, Joseph) (Entered: 10/16/2008)
454 NOTICE of Change of Address or Firm Name by Joseph L. Sulman (Sulman, Joseph) (Entered: 10/28/2008)
455 Letter to Chief Judge Wolf from Michelle Lynne Kosilek. (Boyce, Kathy) (Entered: 10/31/2008)
456 Letter/request (non-motion) from Kosilek counsel to UMass counsel. (Sulman, Joseph) (Entered: 12/12/2008)
457 NOTICE by Michelle Kosilek (Attachments: # 1 Exhibit Exhibit A)(Sulman, Joseph) (Entered: 01/15/2009)
458 AFFIDAVIT of Miichelle Lynne Kosilek by Michelle Kosilek. (Sulman, Joseph) (Entered: 01/26/2009)
459 AFFIDAVIT of Marshall & Levesque by Harold W. Clarke. (Attachments: # 1 Affidavit, # 2 Affidavit)(McFarland, Richard) (Entered: 02/05/2009)
460 MOTION status conference by Michelle Kosilek.(Sulman, Joseph) (Entered: 03/05/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered finding as moot 397 Motion Clarification. As the closing argument has occurred this motion is moot. (O'Leary, Dennis) (Entered: 03/26/2009)
461 MOTION for Injunctive Relief Motion for Interim Relief by Michelle Kosilek. (Attachments: # 1 Affidavit)(Sulman, Joseph) (Entered: 05/20/2009)
462 Memorandum in Support of Motion for Injunctive Relief by Michelle Kosilek Notice of Additional Support (Sulman, Joseph) Docket text Modified on 6/3/2009 (Boyce, Kathy). (Entered: 05/20/2009)

06/03/2009 06/16/2009 06/20/2009
07/10/2009 07/14/2009 07/14/2009 07/28/2009 07/31/2009 08/05/2009 08/06/2009 08/10/2009
08/11/2009

463 Opposition re 461 MOTION for Injunctive Relief Motion for Interim Relief filed by Harold W. Clarke. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit)(McFarland, Richard) (Entered: 06/03/2009)
464 REPLY to Response to 461 MOTION for Injunctive Relief Motion for Interim Relief filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 06/16/2009)
465 Chief Judge Mark L. Wolf: ORDER entered. 1. Plaintiff Michelle Kosilek's Motion for a StatusConference (Docket No. 460) is ALLOWED. 2. A status conference and hearing on Kosilek's Motion for Interim Relief (Docket No. 461) shall be held on August 11, 2009, at 10:30 a.m. 3. Counsel for the parties shall, by July 31, 2009, confer and file a statement of their respective positions on all of theissues to be addressed on August 11, 2009.(O'Leary, Dennis) (Entered: 06/23/2009)
466 NOTICE by Michelle Kosilek of Service of Discovery (Attachments: # 1 Exhibit Exhibit A - Trial Subpoena/Rule 34 Request, # 2 Exhibit Exhibit B - Interrogatories)(Sulman, Joseph) (Entered: 07/10/2009)
467 MOTION for Protective Order by Harold W. Clarke.(McFarland, Richard) (Entered: 07/14/2009)
468 CERTIFICATE OF CONSULTATION re 467 MOTION for Protective Order. (McFarland, Richard) (Entered: 07/14/2009)
469 Opposition re 467 MOTION for Protective Order filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 07/28/2009)
470 STATUS REPORT Joint Status Report by Michelle Kosilek. (Attachments: # 1 Exhibit Plaintiff's Exhibit A, # 2 Exhibit Plaintiff's Exhibit B)(Sulman, Joseph) (Entered: 07/31/2009)
471 CERTIFICATE OF SERVICE by Michelle Kosilek re 469 Opposition to Motion. (Sulman, Joseph) (Entered: 08/05/2009)
472 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 8/11/2009. (O'Leary, Dennis) (Entered: 08/06/2009)
ELECTRONIC NOTICE of Rescheduling Hearing on Motion (as to time only) 467 MOTION for Protective Order, 461 MOTION for Injunctive Relief Motion for Interim Relief: The Motion Hearing previously set for 8/11/2009 at 10:30 AM is now set for 8/11/2009 at 9:30 AM in Courtroom 10 before Chief Judge Mark L. Wolf. Please mark your calendars accordingly.(O'Leary, Dennis) (Entered: 08/10/2009)
473 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 8/11/2009 re 461 MOTION for Injunctive Relief Motion for Interim Relief filed by Michelle

08/11/2009
08/25/2009 09/24/2009
09/24/2009 10/16/2009 10/19/2009 10/19/2009 10/19/2009 10/19/2009

Kosilek, 467 MOTION for Protective Order filed by Harold W. Clarke, 460 MOTION status conference filed by Michelle Kosilek. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 08/11/2009)
474 Chief Judge Mark L. Wolf: ORDER entered For the reasons stated in court on August 11, 2009, it is hereby ORDERED that: 1. The Motion by Plaintiff Michelle Kosilek for Interim Relief (Docket No. 461) is DENIED without prejudice. 3. Defendant Harold W. Clarke's Motion for a Protective Order (Docket No. 467) is ALLOWED in part and DENIED in part. 6. A hearing on any renewed motion for an order directing the resumption of electrolysis treatments will commence on November 23, 2009, at 9:30 a.m., and continue from day to day until concluded. (O'Leary, Dennis). (Entered: 08/11/2009)
475 JOINT STATEMENT of counsel Pursuant to August 11, 2009 Order. (McFarland, Richard) (Entered: 08/25/2009)
476 Transcript of Motions for Preliminary Injunction and Protective Order held on August 11, 2009, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 10/13/2009. Redacted Transcript Deadline set for 10/22/2009. Release of Transcript Restriction set for 12/21/2009. (Scalfani, Deborah) (Entered: 09/24/2009)
477 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 09/24/2009)
478 MOTION for Extension of Time to October 19, 2009 to File motion by Michelle Kosilek.(Sulman, Joseph) (Entered: 10/16/2009)
479 NOTICE by Harold W. Clarke re 478 MOTION for Extension of Time to October 19, 2009 to File motion Assenting to It (Kennedy, Joan) (Entered: 10/19/2009)
480 Assented to MOTION for Extension of Time to 10/19/09 to File Motion for Preliminary Injunctive Relief by Michelle Kosilek.(Cohen, Frances) (Entered: 10/19/2009)
481 Interim MOTION for Preliminary Injunction Renewed by Michelle Kosilek. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Cohen, Frances) (Entered: 10/19/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered withdrawing 478 Motion for Extension of Time; granting 480 Motion

10/30/2009 11/02/2009 11/03/2009 11/05/2009
11/10/2009 11/23/2009 11/23/2009 11/23/2009 11/24/2009 11/25/2009 11/25/2009

for Extension of Time Motion for Preliminary Injunction due by 10/19/2009. (Boyce, Kathy) (Entered: 10/19/2009)
482 MOTION for Extension of Time to 11/3/2009 to File Opposition to Plaintiff's Renewed Motion for Interim Relief by Harold W. Clarke.(McFarland, Richard) (Entered: 10/30/2009)
Chief Judge Mark L. Wolf: Electronic ORDER entered granting 482 Motion for Extension of Time (O'Leary, Dennis) (Entered: 11/02/2009)
483 Opposition re 481 Interim MOTION for Preliminary Injunction Renewed filed by Harold W. Clarke. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(McFarland, Richard) (Entered: 11/03/2009)
ELECTRONIC NOTICE issued requesting courtesy copy for 483 Opposition to Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 11/9/2009. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (O'Leary, Dennis) (Entered: 11/05/2009)
484 REPLY to Response to 481 Interim MOTION for Preliminary Injunction Renewed filed by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 11/10/2009)
485 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 11/23/2009 re 481 Interim MOTION for Preliminary Injunction Renewed filed by Michelle Kosilek. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 11/23/2009)
486 Letter/request (non-motion) from Counsel for Plaintiff Michelle Kosilek. (Sulman, Joseph) (Entered: 11/23/2009)
487 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 11/25/2009. (O'Leary, Dennis) (Entered: 11/23/2009)
488 Letter/request (non-motion) from Defendant On Issue of Hair Removal. (McFarland, Richard) (Entered: 11/24/2009)
489 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 11/25/2009 re 481 Interim MOTION for Preliminary Injunction Renewed filed by Michelle Kosilek. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 11/25/2009)
490 Chief Judge Mark L. Wolf: ORDER entered denying 481 Motion for Preliminary Injunction. (O'Leary, Dennis) (O'Leary, Dennis). (Entered: 11/25/2009)

11/25/2009 12/04/2009 12/04/2009 12/10/2009
12/10/2009 12/11/2009 12/11/2009 12/15/2009
12/15/2009 12/15/2009 12/16/2009

Set Deadlines/Hearings: Status Report due by 12/4/2009. Further closing argument hearing set for 12/21/2009 10:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (O'Leary, Dennis) (Entered: 11/25/2009)
491 STATUS REPORT by Michelle Kosilek. (Sulman, Joseph) (Entered: 12/04/2009)
492 MOTION for Leave to File Second Amended Complaint by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 12/04/2009)
ELECTRONIC NOTICE OF RESCHEDULING AS TO TIME ONLY. Further argument on the merits of Kosilek's claim that the failure of the Department of Corrections (the "DOC") to provide Kosilek with the sex reassignment surgery recommended by the DOC's doctors violates the Eighth Amendment previously scheduled for 12/21/2009 at 10:00 a.m. will now be heard by the court on December 21, 2009, at 11:00 a.m. (O'Leary, Dennis) (Entered: 12/10/2009)
493 Writ of Habeas Corpus ad Testificandum Issued as to MICHELLE KOSILEK for 12/21/2009. (O'Leary, Dennis) (Entered: 12/10/2009)
494 STATEMENT OF COUNSEL by Michelle Kosilek. (Sulman, Joseph) (Entered: 12/11/2009)
495 STATEMENT OF COUNSEL by Harold W. Clarke. (McFarland, Richard) (Entered: 12/11/2009)
496 Transcript of Motion for a Preliminary Injunction Hearing held on November 23, 2009, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 1/5/2010. Redacted Transcript Deadline set for 1/15/2010. Release of Transcript Restriction set for 3/15/2010. (Scalfani, Deborah) (Entered: 12/15/2009)
498 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 12/15/2009)
499 Opposition re 492 MOTION for Leave to File Second Amended Complaint filed by Harold W. Clarke. (McFarland, Richard) (Entered: 12/15/2009)
500 REPLY to Response to 492 MOTION for Leave to File Second Amended Complaint filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 12/16/2009)

12/17/2009
12/18/2009 12/21/2009 12/21/2009 12/21/2009
01/12/2010 01/22/2010 01/25/2010
01/25/2010 02/02/2010

501 Transcript of Motion for Preliminary Injunction (Continued) Judge's ruling held on November 25, 2009, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 1/7/2010. Redacted Transcript Deadline set for 1/19/2010. Release of Transcript Restriction set for 3/17/2010. (Scalfani, Deborah) (Entered: 12/17/2009)
502 NOTICE by Michelle Kosilek Additional Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sulman, Joseph) (Entered: 12/18/2009)
503 NOTICE by Michelle Kosilek of authority (Sulman, Joseph) (Entered: 12/21/2009)
504 NOTICE of Change of Address or Firm Name by Joseph L. Sulman (Sulman, Joseph) (Entered: 12/21/2009)
505 Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 12/21/2009 re 492 MOTION for Leave to File Second Amended Complaint filed by Michelle Kosilek, Hearing re Closing Arguments held on 12/21/2009. (Court Reporter: Romanow.) (O'Leary, Dennis) (Entered: 12/22/2009)
506 MEMORANDUM OF LAW by Michelle Kosilek. (Sulman, Joseph) (Entered: 01/12/2010)
507 Response by Harold W. Clarke to 506 Memorandum of Law. (McFarland, Richard) (Entered: 01/22/2010)
508 Transcript of Motion Session with Closing Arguments (revisited) held on December 21, 2009, before Judge Wolf. Court Reporter: Richard H. Romanow at bulldog@richromanow.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 2/16/2010. Redacted Transcript Deadline set for 2/25/2010. Release of Transcript Restriction set for 4/26/2010. (Scalfani, Deborah) (Entered: 01/25/2010)
509 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 01/25/2010)
510 MOTION supplement record or take judicial notice by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 02/02/2010)

02/26/2010 03/02/2010
03/09/2010 03/12/2010
04/14/2010 04/16/2010
04/16/2010 05/12/2010
07/07/2010 10/21/2010 11/01/2010 11/03/2010 11/04/2010 01/27/2011 04/19/2011
05/26/2011

515 NOTICE by Michelle Kosilek of Supplemental Authority (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 02/26/2010)
516 MOTION Supplement Record with new NCCHC GID policy by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 03/02/2010)
517 Response by Harold W. Clarke to 515 Notice (Other) of Supplemental Authority by Plaintiff. (McFarland, Richard) (Entered: 03/09/2010)
518 Opposition re 516 MOTION Supplement Record with new NCCHC GID policy filed by Harold W. Clarke. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 03/12/2010)
519 NOTICE by Michelle Kosilek of Additional Authority (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 04/14/2010)
520 AMENDED COMPLAINT Second against Harold W. Clarke, Department of Correction for the State of Massachusetts, Harold W. Clarke, filed by Michelle Kosilek.(Sulman, Joseph) (Entered: 04/16/2010)
521 MOTION Preclude Filing by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Sulman, Joseph) (Entered: 04/16/2010)
Chief Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 492 Motion for Leave to File Amended complaint nunc pro tunc to 12/21/2009. See clerk notes dated 12/21/2009 docket entry 505. (O'Leary, Dennis) (Entered: 05/12/2010)
522 ANSWER to 520 Amended Complaint by Harold W. Clarke.(McFarland, Richard) (Entered: 07/07/2010)
525 SEALED DOCUMENT. (O'Leary, Dennis) (Entered: 10/21/2010)
526 MOTION for Leave to File by Harold W. Clarke. (Attachments: # 1 Supplement)(McFarland, Richard) (Entered: 11/01/2010)
528 SEALED DOCUMENT. (Boyce, Kathy) (Entered: 11/04/2010)
529 SEALED DOCUMENT. (Boyce, Kathy) (Entered: 11/05/2010)
530 NOTICE of Change of Address or Firm Name by Joseph L. Sulman (Sulman, Joseph) (Entered: 01/27/2011)
531 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Michelle Kosilek re 530 Notice of Change of Address or Firm Name. (Sulman, Joseph) (Entered: 04/19/2011)
532 NOTICE of Supplemental Authorities by Michelle Kosilek recent decision (Attachments: # 1 Battista v Clark decision)(Sulman, Joseph)

08/02/2011 08/03/2011
08/03/2011 08/09/2011 08/10/2011 08/11/2011 08/17/2011 08/18/2011
08/18/2011

Docket text Modified on 6/13/2011 (Boyce, Kathy). (Entered: 05/26/2011)
533 MOTION for Hearing (Status Conference) by Michelle Kosilek.(Sulman, Joseph) Modified event and docket text on 8/3/2011 (Anderson, Jennifer). (Entered: 08/02/2011)
534 Chief Judge Mark L. Wolf: ORDER entered granting 533 Motion for Hearing. Accordingly, it is hereby ORDERED that: 1. Plaintiff's Motion for a Status Conference (Docket No. 533) is ALLOWED. 2. A status conference will be held on August 18, 2011, at 10:30 a.m. Kosilek shall attend. (Hohler, Daniel) (Entered: 08/03/2011)
ELECTRONIC NOTICE of Hearing :Hearing set for 8/18/2011 10:30 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 08/03/2011)
536 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for August 18, 2011, 10:30 a.m. (Hohler, Daniel) (Entered: 08/09/2011)
537 NOTICE of Withdrawal of Appearance by Anthony R. Brighton (Brighton, Anthony) (Entered: 08/10/2011)
538 NOTICE of Appearance by Stephen M. O'Shea on behalf of University of Massachusetts Medical School (O'Shea, Stephen) (Entered: 08/11/2011)
539 Notice of Supplemental Authorities re 533 MOTION for Hearing (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8Exhibit, # 9 Exhibit)(Sulman, Joseph) (Entered: 08/17/2011)
ELECTRONIC Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Hearing held on 8/18/2011. Court in session. Parties identify themselves. Court hears parties on various issues. Court to issue order regarding further briefing. Further hearing scheduled for 10/11/11 at 3:00 p.m. Court in recess. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: McFarland, Cohen, Sulman) (Hohler, Daniel) (Entered: 08/18/2011)
540 Chief Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that: 1. Luis S. Spencer, the current Commissioner of the Department of Corrections, is substituted as the defendant in this case. 2. The parties shall, by September 16, 2011, submit supplementary memoranda concerning the recent, relevant authority addressed at the hearing. Among other things, they shall address whether this court may rely on the factual findings in Battista v. Clarke, No. 10-1965, 2011 WL 1902165 (1st Cir. May 20, 2011), affirming Battista v. Dennehy, No. 0511456-DPW (D. Mass. Aug. 23, 2010), in deciding this case. They shall

08/19/2011 08/23/2011
08/23/2011 09/16/2011 09/16/2011 09/16/2011 09/16/2011
09/28/2011 10/04/2011

also address the import, if any, of the factual findings in the other cases discussed, including O'Donnabhain v. Commissioner of Internal Revenue, 134 T.C. No.4 (2010). 3. Responses shall be filed by October 4, 2011. 4. Unless otherwise ordered, a further hearing will be held on October 11, 2011, at 3:00 p.m.(Hohler, Daniel) Modified on 8/19/2011 (Hohler, Daniel). (Entered: 08/19/2011)
ELECTRONIC NOTICE of Hearing :Hearing set for 10/11/2011 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 08/19/2011)
541 Transcript of Conference held on August 18, 2011, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 9/13/2011. Redacted Transcript Deadline set for 9/23/2011. Release of Transcript Restriction set for 11/21/2011. (Scalfani, Deborah) (Entered: 08/23/2011)
542 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/23/2011)
543 NOTICE of Appearance by Jared A. Craft on behalf of Michelle Kosilek (Craft, Jared) (Entered: 09/16/2011)
544 Response by Luis S. Spencer to August 19, 2011 Order of the Court. (McFarland, Richard) (Entered: 09/16/2011)
545 BRIEF by Michelle Kosilek Supplemental Memorandum. (Cohen, Frances) (Entered: 09/16/2011)
546 AFFIDAVIT of Plaintiff re 545 Brief by Michelle Kosilek. (Attachments: # 1 Exhibit Exhibit 25, # 2 Exhibit Exhibit 131, # 3 Exhibit Exhibit 134, # 4 Exhibit Exhibit 138, # 5Exhibit Exhibit 139, # 6 Exhibit Exhibit 140, # 7 Exhibit Exhibit 143, # 8 Exhibit Exhibit 144)(Cohen, Frances) (Entered: 09/16/2011)
ELECTRONIC NOTICE OF RESCHEDULINGThe hearing previously set for 10/11/2012 is now set for 10/12/2011 02:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 09/28/2011)
547 Response by Luis S. Spencer to 545 Brief. (McFarland, Richard) (Entered: 10/04/2011)

10/04/2011 10/06/2011 10/12/2011
10/14/2011
10/14/2011 11/21/2011 11/30/2011 09/04/2012 09/04/2012 09/04/2012 09/06/2012 09/16/2012

548 Response by Michelle Kosilek to 544 Response. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Sulman, Joseph) (Entered: 10/04/2011)
549 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 10/12/2011. (Hohler, Daniel) (Entered: 10/06/2011)
ELECTRONIC Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Hearing re Hearing held on 10/12/2011. Court in session. Parties identify themselves. Plaintiff Kosilek is present. Court hears argument. Court takes matter under advisement. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Cohen, McFarlad, Kennedy) (Hohler, Daniel) (Entered: 10/12/2011)
550 Transcript of Conference/Motions held on October 12, 2011, before Chief Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 11/4/2011. Redacted Transcript Deadline set for 11/14/2011. Release of Transcript Restriction set for 1/12/2012. (Scalfani, Deborah) (Entered: 10/14/2011)
551 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 10/14/2011)
552 MEMORANDUM OF LAW by Michelle Kosilek to 545 Brief. (Attachments: # 1 Exhibit)(Sulman, Joseph) (Entered: 11/21/2011)
553 MEMORANDUM OF LAW by Luis S. Spencer to 552 Memorandum of Law. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 11/30/2011)
554 Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel) (Entered: 09/04/2012)
555 Chief Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 09/04/2012)
556 Chief Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 09/04/2012)
557 Chief Judge Mark L. Wolf: ORDER entered. JUDGMENT (Hohler, Daniel) (Entered: 09/06/2012)
558 Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER Accordingly, it is hereby ORDERED that: 1. The time by which plaintiff shall file any motion for attorneys' fees is EXTENDED

10/02/2012 10/02/2012
10/02/2012 10/03/2012 10/03/2012 10/04/2012 10/04/2012

to October 4, 2012, without prejudice to the possibility of a further extension if one is requested. See Fed. R. Civ. P. 54(d)(2)(B). 2. Counsel shall meet at least once to discuss whether the parties can agree on a resolution of the question of an award ofattorneys' fees to plaintiff and any related issues. 3. By October 2, 2012: a. Defendant shall either file a motion to extend the time for the filing of a Notice of Appeal or state that he is not seeking an extension of time to do so. See Fed. R. App. P. 4(a)(5). b. If such an extension is requested, plaintiff shall state whether he opposes the request and, if so, the reasons for his opposition. c. Plaintiff shall state whether he requests a further extension of time to file a motion for an award of attorneys' fees. d. If such an extension is requested, defendant shall state whether he opposes the request and, if so, the reasons for his opposition.(Hohler, Daniel) (Entered: 09/16/2012)
559 NOTICE by Luis S. Spencer Response to September 16, 2012 Order (McFarland, Richard) (Entered: 10/02/2012)
560 NOTICE OF APPEAL by Luis S. Spencer Fee Status: State or Local Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 10/22/2012. (McFarland, Richard) (Entered: 10/02/2012)
561 MOTION to Stay Execution of Final Judgment Pending a Decision on Defendant's Appeal by Luis S. Spencer.(McFarland, Richard) (Entered: 10/02/2012)
562 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 560 Notice of Appeal, (Attachments: # 1 Page 2)(Ramos, Jeanette) (Entered: 10/03/2012)
563 USCA Case Number 12-2194 for 560 Notice of Appeal, filed by Luis S. Spencer. (Ramos, Jeanette) (Entered: 10/03/2012)
564 MOTION for Attorney Fees and Costs by Michelle Kosilek.(Cohen, Frances) (Entered: 10/04/2012)
565 MEMORANDUM in Support re 564 MOTION for Attorney Fees and Costs filed by Michelle Kosilek. (Cohen, Frances) (Entered: 10/04/2012)

10/04/2012
10/04/2012 10/04/2012 10/05/2012 10/05/2012 10/11/2012 10/12/2012 10/15/2012
10/16/2012 10/16/2012 10/18/2012 10/19/2012 10/22/2012 10/24/2012

566 AFFIDAVIT of Frances S. Cohen in Support re 564 MOTION for Attorney Fees and Costs filed by Michelle Kosilek. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cohen, Frances) (Entered: 10/04/2012)
567 AFFIDAVIT of Michelle Lynne Kosilek in Support re 564 MOTION for Attorney Fees and Costs filed by Michelle Kosilek. (Cohen, Frances) (Entered: 10/04/2012)
568 MOTION to Amend 554 Memorandum & ORDER, 556 Order by Michelle Kosilek.(Cohen, Frances) (Entered: 10/04/2012)
569 Chief Judge Mark L. Wolf: ELECTRONIC ORDER entered. ORDER REOPENING CASE(Hohler, Daniel) (Entered: 10/05/2012)
570 Case Reopened per 569 (Duong, Diep) (Entered: 10/05/2012)
571 MOTION for Extension of Time to 11/2/12 to File Response/Reply as to 564 MOTION for Attorney Fees and Costs by Luis S. Spencer.(McFarland, Richard) (Entered: 10/11/2012)
572 USCA Appeal Fees received $455.00 receipt number 1BST033636 re 560 Notice of Appeal, filed by Luis S. Spencer. (MacDonald, Gail) (Entered: 10/15/2012)
573 Chief Judge Mark L. Wolf: ENDORSED ORDER entered granting 571 Motion for Extension of Time to File Response/Reply re 564 MOTION for Attorney Fees and CostsResponses due by 11/2/2012. "Allowed." (Hohler, Daniel) (Entered: 10/16/2012)
574 NOTICE of Appearance by Christina Y. Chan on behalf of Michelle Kosilek (Chan, Christina) (Entered: 10/16/2012)
575 Opposition re 561 MOTION to Stay Execution of Final Judgment Pending a Decision on Defendant's Appeal filed by Michelle Kosilek. (Attachments: # 1 Exhibit A)(Cohen, Frances) (Entered: 10/16/2012)
576 Opposition re 568 MOTION to Amend 554 Memorandum & ORDER, 556 Order filed by Luis S. Spencer. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 10/18/2012)
577 MOTION to Seal Document Exhibit 1 to 576 Opposition to Motion by Luis S. Spencer.(MacDonald, Gail) (Entered: 10/22/2012)
578 RESPONSE to Motion re 577 MOTION to Seal Document 576 Opposition to Motion filed by Michelle Kosilek. (Cohen, Frances) (Entered: 10/22/2012)
579 Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel) (Entered: 10/24/2012)

10/24/2012
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580 ELECTRONIC NOTICE Setting Hearing on Motion 568 MOTION to Amend 554 Memorandum & ORDER, 556 Order , 561 MOTION to Stay Execution of Final Judgment Pending a Decision on Defendant's Appeal, 564 MOTION for Attorney Fees and Costs : NOTICE TO COUNSEL re: Cameras in the Courtroom Project. The parties in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site athttp://www.mad.uscourts.gov/general/cameras.html to determine if they wish to consent to video recording. The parties shall confer and, by 11/12/2012, jointly inform the court whether or not they both consent to the video recording of the November 19, 2012 hearing. A RESPONSE FROM EACH PARTY IS REQUIRED. See Memorandum and Order Docket no. 579 . Motion Hearing set for 11/19/2012 11:00 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 10/24/2012)
581 RESPONSE TO COURT ORDER by Luis S. Spencer . (McFarland, Richard) (Entered: 11/02/2012)
582 RESPONSE to Motion re 564 MOTION for Attorney Fees and Costs filed by Luis S. Spencer. (McFarland, Richard) (Entered: 11/02/2012)
583 Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel) (Entered: 11/09/2012)
584 RESPONSE TO COURT ORDER by Michelle Kosilek, Luis S. Spencer Regarding Videotaping of November 19, 2012 Hearing. (McFarland, Richard) (Entered: 11/13/2012)
585 REPLY to Response to 564 MOTION for Attorney Fees and Costs filed by Michelle Kosilek. (Cohen, Frances) (Entered: 11/13/2012)
586 Assented to MOTION for Leave to File A Supplemental Affidavit of Frances S. Cohen by Michelle Kosilek. (Attachments: # 1 Supplement Affidavit of Frances S. Cohen, # 2Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Cohen, Frances) (Entered: 11/13/2012)
587 RESPONSE to Motion re 568 MOTION to Amend 554 Memorandum & ORDER, 556 Order filed by Michelle Kosilek. (Attachments: # 1 Exhibit A, # 2 Exhibit B Part I, # 3Exhibit B Part II, # 4 Exhibit B Part III, # 5 Exhibit B Part IV, # 6 Exhibit C, # 7 Exhibit D)(Cohen, Frances) (Entered: 11/13/2012)
588 ORDER of USCA as to 560 Notice of Appeal, filed by Luis S. Spencer. Order issued in the USCA 11/13/2012 (Ramos, Jeanette) (Main Document 588 replaced on 11/15/2012) (Ramos, Jeanette). (Entered: 11/15/2012)

11/15/2012 11/16/2012 11/19/2012 11/19/2012
11/19/2012
11/19/2012
11/20/2012

589 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 11/19/2012. (Hohler, Daniel) (Entered: 11/15/2012)
590 REPLY to Response to 568 MOTION to Amend 554 Memorandum & ORDER, 556 Order filed by Luis S. Spencer. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 11/16/2012)
591 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 11/20/2012. (Hohler, Daniel) (Entered: 11/19/2012)
592 ELECTRONIC NOTICE Setting Hearing on Motion 568 MOTION to Amend 554 Memorandum & ORDER, 556 Order , 586 Assented to MOTION for Leave to File A Supplemental Affidavit of Frances S. Cohen, 561 MOTION to Stay Execution of Final Judgment Pending a Decision on Defendant's Appeal, 564 MOTION for Attorney Feesand Costs : Motion Hearing set for 11/20/2012 11:30 AM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) Modified on 11/19/2012 (Hohler, Daniel). (Entered: 11/19/2012)
593 ELECTRONIC NOTICE Resetting Hearing on Motion 568 MOTION to Amend 554 Memorandum & ORDER, 556 Order , 586 Assented to MOTION for Leave to File A Supplemental Affidavit of Frances S. Cohen, 561 MOTION to Stay Execution of Final Judgment Pending a Decision on Defendant's Appeal, 564 MOTION for Attorney Feesand Costs : Motion Hearing set for 11/20/2012 11:30 AM in Courtroom 10 before Chief Judge Mark L. Wolf. PLEASE NOTE HEARING STARTS AT 11:30 a.m.(Hohler, Daniel) (Entered: 11/19/2012)
594 ELECTRONIC Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Evidentiary Hearing held on 11/19/2012. Court in session. Court addresses background matters. Court unseals Document 576-1. Court hears parties on motion to amend. Dr. Robert Diener is sworn and takes the stand. Attorney Cohen examines Dr. Diener. Exhibit 1 admitted. Attorney McFarland cross-examines Dr. Diener. Exhibits 2 and 3 admitted. Redirect examination by Attorney Cohen. Court in recess. Court back in session. Court hears party on motion to stay. Court hears parties on attorneys fees motion. Dr. Diener is excused from proceedings. Court in recess until 11:30 a.m. 11/20/2012. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Macfarland, Kennedy, Cohen) (Hohler, Daniel) (Entered: 11/20/2012)
595 ELECTRONIC Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Evidentiary Hearing held on 11/20/2012. Court in session. Court denies motion to amend and provides reasoning. Court allows motion to stay pending appeal with conditions including monthly reports. Court orders further briefing on motions for attorneys fees. Parties ordered to submit filings by 12/7/2012. Hearing on the motion set

11/20/2012 11/20/2012 11/20/2012 12/03/2012 12/07/2012 12/07/2012 12/10/2012
12/10/2012

for 12/19/2012, 3:00 p.m., Courtroom 10 before Chief Judge Mark L. Wolf. Court in recess. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Macfarland, Kennedy, Cohen) (Hohler, Daniel) Modified on 11/20/2012 (Hohler, Daniel). (Entered: 11/20/2012)
596 Chief Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 11/20/2012)
597 ELECTRONIC NOTICE Setting Hearing on Motion 564 MOTION for Attorney Fees and Costs : Motion Hearing set for 12/19/2012 03:00 PM in Courtroom 10 before Chief Judge Mark L. Wolf. (Hohler, Daniel) (Entered: 11/20/2012)
598 Remark: Copy of Docket No. 596 delivered in-hand to Court of Appeals Clerk's Office 2:47 p.m. 11/20/2012 by Courtroom Deputy Clerk Hohler(Hohler, Daniel) (Entered: 11/20/2012)
599 SEALED DOCUMENT. Status Report filed by Luis S. Spencer, Commissioner, Massachusetts Department of Correction. (MacDonald, Gail) UNSEALED BY COURT ORDER ON 1/18/2013 Modified on 1/18/2013 (Hohler, Daniel). (Entered: 12/03/2012)
600 Supplemental MEMORANDUM in Opposition re 564 MOTION for Attorney Fees and Costs filed by Luis S. Spencer. (McFarland, Richard) (Entered: 12/07/2012)
601 Supplemental MEMORANDUM in Support re 564 MOTION for Attorney Fees and Costs filed by Michelle Kosilek. (Cohen, Frances) (Entered: 12/07/2012)
602 Transcript of Motion Hearing held on November 19, 2012, before Chief Judge Mark L. Wolf. COA Case No. 12-2194. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 12/31/2012. Redacted Transcript Deadline set for 1/10/2013. Release of Transcript Restriction set for 3/11/2013. (Scalfani, Deborah) (Entered: 12/10/2012)
603 Transcript of Motion Hearing (Judge's Ruling) held on November 20, 2012, before Chief Judge Mark L. Wolf. COA Case No. 12-2194. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 12/31/2012. Redacted Transcript Deadline set for 1/10/2013. Release of Transcript Restriction set for 3/11/2013. (Scalfani, Deborah) (Entered: 12/10/2012)

12/10/2012 12/12/2012 12/17/2012 12/19/2012
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01/08/2013 01/11/2013 01/18/2013

604 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 12/10/2012)
605 Writ of Habeas Corpus ad Testificandum Issued as to Michelle Kosilek for 12/19/2012. (Hohler, Daniel) (Entered: 12/12/2012)
606 RESPONSE TO COURT ORDER by Luis S. Spencer . (McFarland, Richard) (Entered: 12/17/2012)
607 ELECTRONIC Clerk's Notes for proceedings held before Chief Judge Mark L. Wolf: Motion Hearing held on 12/19/2012 re 564 MOTION for Attorney Fees and Costs filed by Michelle Kosilek. Court is in session. Defendant is present. Court hears argument on motion for attorney fees. Court takes motion under advisement. Lobby conference held. Court is in recess. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: White, Macfarlane, Kennedy, Cohen, Chan, Brody) (Hohler, Daniel) (Entered: 12/20/2012)
608 SEALED DOCUMENT. (MacDonald, Gail) UNSEALED by 1/18/2013 ORDER Modified on 1/18/2013 (Hohler, Daniel). (Entered: 01/03/2013)
609 Transcript of Motion for Attorney's Fees and Costs Hearing held on December 19, 2012, before Judge Mark L. Wolf. COA Case No. 122194. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 1/29/2013. Redacted Transcript Deadline set for 2/8/2013. Release of Transcript Restriction set for 4/8/2013. (Scalfani, Deborah) (Entered: 01/08/2013)
610 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 01/08/2013)
611 STATUS REPORT Response to Status Report by Michelle Kosilek. (Attachments: # 1 Nov 30 2012 Status Report, # 2 Jan 2 2013 Status Report)(Cohen, Frances) UNSEALED BY COURT ORDER on 1/18/2013 Modified on 1/18/2013 (Hohler, Daniel). (Entered: 01/11/2013)
612 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER Therefore, it is hereby ORDERED that: 1. Defendant's

01/24/2013 01/24/2013 02/05/2013
03/04/2013 03/05/2013 04/01/2013 05/03/2013

November 30, 2012 Status Report (Docket No. 599), defendant's January 2, 2013 Status Report (Docket No. 608); and Plaintiff Michelle Lynne Kosilek's Response to Status Report (Docket No. 611) are UNSEALED. 2. By January 31, 2013, defendant Luis Spencer shall file, under seal, and serve on counsel for Kosilek, an affidavit, under oath: a) Stating that he has read this Memorandum and Order. b) Describing in detail what actions have been taken by him, or by identified individuals on his behalf, to comply with the November 20, 2012 Order, and the results of those actions. 3. By the last day of each month Spencer shall file, under seal, a supplementary affidavit that includes the information required by paragraph 2 (b) hereinabove. 4. By the last day of each month, including January 31, 2013, Spencer shall also file, under seal, a redacted version of his affidavit, which the court may make part of the public record. 5. Kosilek shall file any future responses to defendant IS status reports under seal and shall also file redacted versions of such responses, which the court may make part of the public record.(Hohler, Daniel) (Entered: 01/18/2013)
613 MOTION to Seal - Motion for Copy of Sealed Exhibit by Luis S. Spencer.(McFarland, Richard) (Entered: 01/24/2013)
614 Judge Mark L. Wolf: ENDORSED ORDER entered granting 613 Motion to Seal "ALLOWED, with the understanding that Exhibit 70 will be filed under seal with the First Circuit." (Hohler, Daniel) (Entered: 01/24/2013)
616 Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that the attached redacted version of theAffidavit of Luis S. Spencer (Under Seal) (Docket No. 615-2, withfurther redactions made by the court) shall be docketed for thepublic record in this case.(Hohler, Daniel) (Entered: 02/05/2013)
618 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Redacted Affidavit of Luis S. Spencer with attachment) (MacDonald, Gail) (Entered: 03/05/2013)
619 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Luis S. Spencer February 28, 2013 Affidavit of Luis S. Spencer (Under Seal). (McFarland, Richard) (Entered: 03/05/2013)
621 Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that the attached redacted version of the Affidavit of Luis S. Spencer (March, 2013) (Under Seal) (Redacted) (Docket No. 620-1) shall be docketed for the public record in this case.(Hohler, Daniel) (Entered: 04/01/2013)
623 Judge Mark L. Wolf: ORDER entered. re 596 Order. (MacDonald, Gail) (Entered: 05/03/2013)

05/30/2013
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06/26/2013
06/28/2013 06/28/2013 07/08/2013

626 Judge Mark L. Wolf: ORDER entered. In view of the foregoing, it is hereby ORDERED that: 1. The attached redacted version of Kosilek's Response is made part of the public record. 2. Unless and until otherwise ordered, defendant shall not serve on Kosilek's counsel the report for May 2013, to be filed pursuant to paragraph 2 (b) of the November 20, 2012 Order, as modified by the January 18, 2013 Memorandum and Order.(Hohler, Daniel) (Entered: 05/30/2013)
627 MOTION for Reconsideration re 626 Order, seeking partial reconsideration by Michelle Kosilek.(Cohen, Frances) (Entered: 06/05/2013)
628 AFFIDAVIT of Frances S. Cohen in Support re 627 MOTION for Reconsideration re 626 Order, seeking partial reconsideration filed by Michelle Kosilek. (Cohen, Frances) (Entered: 06/05/2013)
629 AFFIDAVIT of Joseph L. Sulman in Support re 627 MOTION for Reconsideration re 626 Order, seeking partial reconsideration filed by Michelle Kosilek. (Sulman, Joseph) (Entered: 06/06/2013)
631 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 06/10/2013)
632 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 586 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Hohler, Daniel) (Entered: 06/26/2013)
633 Assented to MOTION for Leave to File Supplemental Affidavit of Frances S. Cohen In Support of Plaintiff's Motion for Award of Attorneys' Fees and Costs Granted on June 26, 2013 by Michelle Kosilek. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Cohen, Frances) (Entered: 06/26/2013)
634 AFFIDAVIT of Frances S. Cohen Supplemental Affidavit by Michelle Kosilek. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Cohen, Frances) (Entered: 06/28/2013)
635 NOTICE by Michelle Kosilek of Withdrawal of June 26, 2013 Motion for Leave to File Supplemental Affidavit of Frances S. Cohen (Cohen, Frances) (Entered: 06/28/2013)
637 Judge Mark L. Wolf: ORDER entered. (MacDonald, Gail) (Entered: 07/08/2013)

07/19/2013
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08/14/2013 09/03/2013 10/08/2013 11/12/2013 12/04/2013 01/10/2014 01/10/2014 01/13/2014 01/17/2014 01/17/2014 01/27/2014 02/06/2014 03/03/2014

638 MOTION to Withdraw as Attorney by Michelle Kosilek. (Attachments: # 1 Notice of Withdrawal of Frances S. Cohen, # 2 Notice of Withdrawal of Christina Chan, # 3 Notice of Withdrawal of Jared A. Craft)(Cohen, Frances) (Entered: 07/19/2013)
642 Judge Mark L. Wolf: ENDORSED ORDER entered granting 638 Motion to Withdraw as Attorney. Attorney Jared A. Craft; Christina Y. Chan and Frances S. Cohen terminated "ALLOWED."(Hohler, Daniel) (Entered: 08/14/2013)
643 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Redacted Affidavit, # 2 Redacted Response to Status Report)(Hohler, Daniel) (Entered: 08/14/2013)
645 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 09/03/2013)
647 Judge Mark L. Wolf: ORDER entered re 612 Memorandum & ORDER. (Attachments: # 1 Redacted Affidavit of Luis S. Spencer) (MacDonald, Gail) (Entered: 10/09/2013)
649 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Redacted Affidavit of Luis S. Spencer). (MacDonald, Gail) (Entered: 11/12/2013)
651 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 12/05/2013)
658 NOTICE of Appearance by David I. Brody on behalf of Michelle Kosilek (Brody, David) (Entered: 01/10/2014)
659 NOTICE of Change of Address or Firm Name by David I. Brody (Brody, David) (Entered: 01/10/2014)
660 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 01/13/2014)
661 OPINION of USCA as to 560 Notice of Appeal filed by Luis S. Spencer. AFFIRMED. (Paine, Matthew) (Entered: 01/21/2014)
662 USCA Judgment as to 560 Notice of Appeal filed by Luis S. Spencer. The judgment of the district court is affirmed. (Paine, Matthew) (Entered: 01/21/2014)
663 MOTION Schedule Status Conference by Michelle Kosilek.(Sulman, Joseph) (Entered: 01/27/2014)
665 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Redacted Affidavit of Katherine Chmiel)(MacDonald, Gail) (Entered: 02/06/2014)
667 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Redacted Affidavit of Luis S. Spencer) (MacDonald, Gail) (Entered: 03/04/2014)

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01/07/2015
03/17/2015 03/31/2015 05/04/2015

669 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 04/07/2014)
671 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Redacted Affidavit of Luis S. Spencer)(MacDonald, Gail) (Entered: 05/02/2014)
672 Judge Mark L. Wolf: ENDORSED ORDER entered denying 663 Motion "Denied without prejudice."(Hohler, Daniel) (Entered: 05/16/2014)
673 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 06/02/2014)
675 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 06/06/2014)
677 NOTICE by Luis S. Spencer of Successor Defendant (McFarland, Richard) (Entered: 08/01/2014)
679 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 08/06/2014)
681 Judge Mark L. Wolf: ELECTRONIC ORDER entered. (Hohler, Daniel) (Entered: 09/17/2014)
683 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 10/01/2014)
686 Judge Mark L. Wolf: ORDER entered. (Hohler, Daniel) (Entered: 12/04/2014)
687 OPINION of USCA as to 560 Notice of Appeal filed by Luis S. Spencer. (Paine, Matthew) (Entered: 12/17/2014)
688 USCA Judgment as to 560 Notice of Appeal filed by Luis S. Spencer. The district court's order of injunctive relief is reversed, and the matter is remanded to the district court with instructions to dismiss the case. (Paine, Matthew) (Entered: 12/17/2014)
689 MANDATE of USCA as to 560 Notice of Appeal filed by Luis S. Spencer. Appeal 560 Terminated (Paine, Matthew) (Entered: 01/08/2015)
691 Case Appealed to Supreme Court of the United States, Case Number 141120. (Paine, Matthew) (Entered: 04/02/2015)
690 Order entered in error. Modified on 4/1/2015 (Hohler, Daniel). (Entered: 04/01/2015)
692 Order entered from the U.S. Supreme Court. The Petition for a Writ of Certiorari is Denied. (Paine, Matthew) (Entered: 05/26/2015)

06/04/2015 03/07/2016

693 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel) (Entered: 06/04/2015)
694 Letter/request (non-motion) for transcript from Michelle Kosilek. (Franklin, Yvonne) (Entered: 03/07/2016)

 
 As of: April 1, 2014 9:05 PM EDT

Kosilek v. Spencer

United States Court of Appeals for the First Circuit February 12, 2014, Entered No. 12-2194

Reporter: 2014 U.S. App. LEXIS 2660

MICHELLE KOSILEK, Plaintiff, Appellee, v. LUIS S. SPENCER, Commissioner of the Massachusetts Department of Correction, Defendant, Appellant.
Prior History: Kosilek v. Spencer, 2014 U.S. App. LEXIS 951 (1st Cir. Mass., Jan. 17, 2014)

For LUIS S. SPENCER, [*2] Commissioner of the Department of Corrections, Defendant - Appellant: Joan T. Kennedy, Richard Charles McFarland, MA Dept of Corrections, Legal Division, Boston, MA.
For ARTHUR K. BREWER, Defendant: Victoria A. Crawshaw, David Austin Hilton, Morrison Mahoney LLP, Boston, MA.

Counsel: [*1] For MICHELLE KOSILEK, Plaintiff Appellee: Michelle Kosilek, MCI Norfolk, Norfolk, MA; David Isaac Brody, Law Office of Joseph L Sulman, Boston, MA; Christina Y. Chan, Jared A. Craft, Bingham McCutchen LLP, Boston, MA; Joseph L. Sulman, Boston, MA.

For EQUALITY MAINE, GAY & LESBIAN

ADVOCATES & DEFENDERS, HUMAN RIGHTS

CAMPAIGN, MASSEQUALITY, MASSACHUSETTS

TRANSGENDER

POLITICAL

COALITION,

NATIONAL CENTER FOR TRANSGENDER

EQUALITY, NATIONAL GAY & LESBIAN TASK

FORCE, TRANSGENDER NEW HAMPSHIRE,

Interested Party - Amicus Curiae: Bennett H. Klein,

Jennifer L. Levi, Gay & Lesbian Advocates & Defenders,

Boston, MA.

For MA DEPT. OF CORRECTION, KATHLEEN DENNEHY, Defendants: Joan T. Kennedy, Richard Charles McFarland, MA Dept of Corrections, Legal Division, Boston, MA.

For MA FAMILY INSTITUTE, Interested Party - Amicus Curiae: Andrew David Beckwith, Massachusetts Family Institute, Woburn, MA.

For WORLD PROFESSIONAL ASSOCIATION FOR

TRANSGENDER HEALTH, CALLEN-LORDE

COMMUNITY

HEALTH

CENTER,

WHITMAN-WALKER HEALTH, GLMA: HEALTH

PROFESSIONALS ADVANCING LGBT EQUALITY,

MAZZONI CENTER, MENTAL HEALTH AMERICA,

Interested Party - Amicus Curiae: Cori A. Lable, Daniel V.

McCaughey, Ropes & Gray LLP, Boston, MA.

For AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION, LEGAL AID SOCIETY, HARVARD PRISON LEGAL ASSISTANCE PROJECT, PRISONERS’ LEGAL SERVICES OF NEW YORK, PRISONERS’ LEGAL SERVICES, Interested Party - Amicus Curiae: Joshua A. Block, American Civil Liberties Union Foundation, New York, NY; David C. Fathi, American Civil Liberties Union, Washington, DC; Matthew R. Segal, American Civil Liberties Union of Massachusetts, Boston, MA.

For CORRECTIONAL MEDICAL SYSTEMS, Defendant: Victoria A. Crawshaw, David Austin Hilton, Morrison Mahoney LLP, Boston, MA; Stephen M. O’Shea, Martin Magnuson McCarthy & Kenney, Boston, MA.
For DOES 1 THROUGH 100, Defendant: Joan T. Kennedy, MA Dept of Corrections, Legal Division, Boston, MA.
For UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL, Defendant: Stephen M. O’Shea, Martin Magnuson McCarthy & Kenney, Boston, MA.

Judges: Before Lynch, Chief Judge, Torruella, [*3] Howard, Thompson and Kayatta, Circuit Judges.
Opinion
ORDER OF COURT
A majority of the active judges having voted to rehear this case en banc, the petition for rehearing en banc is granted. In accordance with customary practice, the panel opinion and the dissent released on January 17, 2014, are withdrawn, and the judgment entered on the same date is vacated. See 1st Cir. I.O.P. X(D).

2014 U.S. App. LEXIS 2660, *3

Page 2 of 2

The parties have filed briefs and the en banc court will have copies of those briefs. However, the parties are free to file supplemental briefs, not to exceed 25 pages per side. Such briefs should be filed simultaneously on or before March 14, 2014. Amici are welcome to file amicus briefs, also not to exceed 25 pages per brief, on the same schedule, but must seek prior leave of court. Supplemental briefs by the parties and amicus briefs must comply with applicable rules concerning format, service, and other requirements.
Any reply briefs, whether by the parties or by amici given permission to file a brief, must be filed no later than 7 days

after the principal supplemental briefs are filed. Reply briefs are limited to 15 pages.
Fourteen paper copies of all briefs filed should be provided to the Clerk’s Office no later [*4] than one business day after the electronic brief is filed.
The en banc hearing is scheduled for May 8, 2014 at 9:30 a.m., En Banc Courtroom, 7th Floor, John Joseph Moakley Courthouse, Boston, Massachusetts.