Case 1:05-cv-11456-DPW Document 3 Filed 07/08/05 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY J. BATTISTA, Plaintiff,
vs.

' . ::: ')
I

KATH(EEN M. DENNEHY, Commissioner;

))

ROBERT MURPHY, Superintendent;

STEVEN FAIRlY, Director of Security;

) C.A.NO.

SUSAN J. MARTIN, Director of Health Services,

05il I " ·' GREGORY J. HUGHES, i'ICSW; and

UMASS. CORRECTIONAl HEAlTH PROGRAM

-

sued in the individual and offtchl

,

tlJ ,7__/ &1 capac H h s ,

tUJA/t~.d

rr. Defendant Is.

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n)nL4

V . ; n:-111'
_ v J...jJ. 'r:JV

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c{ I'}

Y E R T F T E 0 C 0 MP t A T N T
Plaintiff, Sandy J. Battista, an involuntarily civilly
committed patient, acting pro-se, for her 11 Complaint states as
follows:
INTRi)J)!J£:J]!l~_;_
This 1s a Civil Rights Action requesting declaratory and injunctive relief and damages from the Commissioner of the Department of Corrections, defendant ~athleen M. Dennehy, her officers, agents and employees (jointly "Defendant's"), for depr(v1ng ~he plaintiff, as a civilly committed patient, of estahlished constitutional and statutory rights because of sex, ~1sahility, gender identity and expression. The plaintiff also alleges the Tort of
r11 Though st~ll biologically male, platntiff has heen diagnosed by three separate medical professionals as meetfrg the diagnostic criteria for "Gender Identity Otsorder{NOS)" and recommended for cross-gender hormonal therapy. As such, rshe1 recognizes as being transgendered anrl prefers to b! referred to by female pronouns. Phrased simply in nonmedical terminology, pl~inttff has the soul cf a femal! in the hody of a malt'!.

Case 1:05-cv-11456-DPW Document 3 Filed 07/08/05 Page 2 of 16
Intent~onal and Reckless or Negligent Infliction of Fmotional Oistrf!SS.
JUR!~PJ~!JON_~~~-Y!~Yfl
1) This Court has jurisdicticn over this action pursuant to 28 U.S.C. 1§§1331-32 and 1343{3) and (4). The matters 1n controversy arise under d2 U.S.C. 61983.
2) Venue properly lies in this District pursuant to 28 U.S.C. §1391(b)(2), because the events gfvfng rise to this cau~e of ~iiton occurred at the Mass. Treatment Center{"~TC"), tn Rrtdgewate~. Massachusetts. Which ts located wtth1n the Fastern District of Massachusetts.
3) The Court has supplemental jurisdiction over any of the plaintiff's state law claims pursuant to 28 U.S.C. 61367.
4) Plaintiff's claims for injunctive relfef are properly authorized by 28 U.S.C. 112283-84 and Rule 6~ of the Federal ~ules of Civil Procedure.
PII R!J.E).:
5) Plaintiff, Sandy J. Battfsta("Battfsta'), is and was, 8t all times relevant hereto, a cfvtlly committed patient fn the care and custody of the Massachusetts Department of Correcttcns ["DOC"). lit the time of the events relevant hereto, Battista was civilly committed to the MTC, located at 30 Administration Rd., Bridgewater, County of Plymouth, Massachusetts. 02324-3210.
6) Battista is and was, at all times menticned herei~, a~ adult citizen of the United States a~d a resfdent of the State of Massachusetts.

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timing, and level of medical and mental health services. 13) At all ttmes rel~vant h~reto, all of the above-named
defendant's have acted under "color of state law• and are sued in their t~divtdual and official capacities.
PRE VI O.!J.L~~!I2!l!l2. Jl.L1\~ TT I]]'!\_:
14) In and around July of 1997, while incarcerated, Rattista brought a cause of acticn against the Commonwealt~ of ~~ssac~usetts, asserting t~at OOC medical providers w~re netrg deltherately indifferent to her (then) self-diagnosed g~nder disorder, with the County of SuffoH. See ~!l.fiSJ.-)9_ .fl_aj;_j:_t_s_t_a_ )tS_._ .r.Ol!llll.O.flW!'!.O.l_t_h_ 9!. ~!!~~-­ ~c.h_u_s_e_t._t.s_, __e_t_£__1_,_, C.A.• No,Q7-34R7-A(C:uffoH <:unertor Court).
15) In and around July of 1Q9R, the Suffolk Superior ~our+, tn treating defendant's Motion as one for 5umm~ry Ju~gment, held that: ••• "it was Pattista w~o ~~~diagnosed her~elf as 1 transsexual. ~he has fatTed to proffer reliable ev•~~~ce, 5uch as a ••~1C!1 ~tagnosis rer~ere~ hy a ohys1e1~n, conftrming her assert~on. T~us, the Court s~r1ously nouhts whether Rnttista w1Tl he ahle to put forth any evi~ence of ~ '!er1ous •edicaT need' at tr1~1."
Trl •
lfi) Tn and ~round Janu1ry of '""'· ~h11e "temoor~rily" c1v11Ty committed, ~att1sta brought a second cau~· of act'on aga1rst the DOC, and treatment provt~ers employe~ hy the nne, assertirg stmtlar claims concerning her (then) "independently" diagnosed gender disorder, with the !lnited ~tate~ nt~trlct Court.
~ e e San.9.L..J_,_ ~_!!.j_tj_?_t:.\1 __v_s_. _~ 9 _ll~r.t. !".Ur .P!'.Y _, _.?_11 p.!'!'j !'.t ."' _n9!'_n _t_, _!'.t. Jl.l ..• _,_
C.~.No.02-10137-~El.(On ftl!').

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-517} In and around October n~ ?r.O?, in re$pons~ to pl~intiff's Application for a TRO, filed in t~e above mentioneA act~on, ~~'er­ dant Hughes submitted a sworn aff1davtt he'ore t~is rourt, rlec-
olan w,ll be developed to addres~ R~ttista's medical anrl m~ntal heBlth issues• pertaining to her claimed gender issues. The very sa~e "treatment plan" defendant's are now arbitrarily w1thbo1~1ng, after taking an oath before this Court th~y would ornvide,(~ copy of this Affidavit 1s attached ber~w1th for t~e Court's convenience and marked as fxhtb1t-1)("Ex.- •).
18) In and around November of ?nO?, this Court (("s~er, J.), in ruling on the defendant's Motion to ntsmiss •~ the ahov~ ~ent1oned actton, held that: •. "the r~moT1irt ~~ ~1smiss~ri pursuant to the res judtcate doctrine. However, even if Rattista·~ Complaint were ~ot barred by res judicata, adjudtcattrg Rattista's tnjuncttv~ and d~c1Bratory cletms, ortor to a def•rtt orrler to civilly commit her would be premature.• Ex.-2.
STAT EM_E!fJ ~ QJ'. f,D,_CJ5: 19) On ~/?4/01, just five days prior to Rattista's scheduled
release date from prison, the Worcester County District Attorney's Office filed it's!~. Q~!j~ petition seeking ~ determination as to her (then} alll"ged "sexual <:langerousness." St"e ComrnO!I.\'I~.lljth...Jih Sandy~Y.·-~J!jj'._t_s.taJ WORCV01-11 OA-C.
20) On ~/?~/01, as a result of the above pe~ttton, Ratt1sta was transferred from ~er previous place o' ircarceraticn to the ~Tr, to await disposition on the ahov~ civil oet.ttion to commit.
?1} On 5/20/01, 8atttsta was dtscharg~d 'rom her orpvtou•

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sentences of 'ncarceraticn. ?2) On 12/19/01, the Worcester ~uperior Court (Fecteau, J.),
determined that there was pro~able cause to helieve that ~attista waR 1 •sexually dangerous person,• and ordered her held at the MTC pending examination by two Commonwealth examiner's.
2~) Pn 3/1/02, Battista met with one of the above mentioned Commonwealth examiner's. Katr1n (~ause) Weir, Ed.n •.
?4) On 4/1/02, the above mentioned examiner submitted her Report to the Court on Battista's (then) alleged •sexual dangerousness.• Ex.-'1.
25) •s part or the above examiner's Clinical lssPssments and Conclusions, Dr. Weir opined that Rattist~·s •gender issues" may have some "biological basis,• which "clearly has ~ cnmp'ex network of issues related to.• As well concluding that Ratttsta "needs to work through" thos~ issues. Id.(at oag~-1~, para.5r"~ummary Dss~ssm~nt"l); and (at page-14, para.3r•conc1usions and Recomm~n~­ attons"l).
26) On 5/15/03, a Worcester Superior Court Jury o~ Ratttsta's peers, declared her to be a "sexu~lly ~angerous persnn,• and the Court (Sweeney, J.), ordered her committed to the MTC, ror •an indeterminate period of a ~tnimuw o~ one day and a m~x~mum o~ the rrespondent'sl natural life unt11 otherwise discharged ourRu~nt to the provtstons of section 9." Ex.-4.
?7} On 7/23/03, Ratttsta, actt~g pro-se. filed her petition sl!'eldng a revi!':w o~ her •current" S!!xua1 -'angerousn,..ss, under the provisions of secttcn 9 ~~ ~.(. c.1?~A. ~f the Massachusetts Gen-
eral taws. See _Sa.!ll!Y. J_,_ !l.!!.t.J:i?):~_•.P.ej:J!J!lJI.!!!_YJ., .. f.QJ!IJ!IOnw_e_a]!_h_,_

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C.A.No.03-1074~(Suffolk Sup~rior Court). ?B) On ''/13/03, whil~ civilly cornmitt~n, Rattista was
advised by one of her tr~~tment prnvi~er~. nr. Michol~s P~tr~u. regarding her gend~r issues, •to s~~k services via the UM~ss mental health program." rx.-5.
?9) On 3/?9/~4, ~atttsta submitted a written compT,tnt with defendant Dennehy, pointing out that she was ~~tng tr~ate~ diff~r~ntly compar~d to state prisoners similtrly situated, who w~r~ being afforded "more consid~rate treatment." Ex.-6.
30) On 4/21/04, during an annual review of ~atttst~'s tr~at­ ment progress, the MTC's Community Access PoBrd, recomm~nded that Ratt1stl "explore the reT1ttonship her gender 1ssues hav~ on her sexual offense rtsk tn tr~atment.'' Ex.-7(at page-1sr•rssues Qematntng for Treatment•1).
31) On 4/27/04, Fatt,sta suhmttted a second written compl1int with defendant Dennehy, pointing out that th~ aFfidavit submitted to thts Court by one of her employees (at ~17, above), not only "obligated" her to ~onor those declarations, hut wtthholdtng such ts a form of "p~rjury.• Ex.-8.
3?) On 5/25/04, defendant Martin tnforme~ Rattistt t~at ~er previous complaints to deFendant Oennehy (at ••2q ~ 31, ahov~), were referred to her for response. Fx.-9.
33) Defendant Martin further '"formed Ratttsta that upon her request, the MTC's contractual mentil ~ealth provi~er will schedule an independent evaluation to d~t~rmine what course of treatment may be most important for her gender issues. Td.
~4) On 8/10/04, upon Battista's request, arrangem~nts were

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mede for her to be seen by two separate independent gender specialists for the development of a treatment plan to address me~ical and mental health issues regarding her claimed gender issues.
35) On 11/16/04, the abov~ mentioned gender specialists submitted their report, clinically diagnostrg Ratttste as meeting all of the diagnostic criteria for "Gender Identity ~1sorder­ (NOS),• and recommended a treatment plan that included cross gender hormonal therapy, as well as individual psychotherapy to support the adjustment the hormones will bring. Fx.-10.
36} In and around November of ?C04, arrangements were made, in accordance with the above treatment plan, so that Rattista was provided individual psychotherapy, by a clinician being trained to counsel her to support the adjustments the hormones will bring.
37) In and around April of 2005, also in accordanc~ wit~ the above treatment plan, arrang~~ents were made to hav~ Pattista seen by an outside sp~cialist 1~ Endocrinology for th~ purpose of an appropriate ~~dlcal prescripticn to andres~ hormonal therapy.
38) Shortly thereafter, ~attiste was s~en hy th~ MTC's in house physician, Or. Friedman, who submitted an oro~r to fill the a~ove medical prescription.
~9} On 4/2"/05, after numerous letters of inquiry as to what the delay was in the above prescri~ed medical treatment, Rattista was informed in person by the MTC's 4ealth Services Administrator, Maryanne Percuoco, that d~fendant's Dennehy, Martin, Murphy and Fairly had an administrative "hold" on her

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m~dtcal prescription, pending some so-call~d "security revi~w.• 40) On 4/?.6/05, as a direct anrl proxtm3t.e result of t~e
above mentioned admtntstrattve hold, Ratttst8 had an emottonal breakdown and was placed under a psychiatrist's care, as welT as on Anttdepresstnts, ~ue to th~ overwhelming anxiety she was expertenct~g and a sense of hopelessness over the recent news in wtthhol~tng her prescribed medical tr~atm~nt.
41) On 4/~7/05, Battista wrote def~ndant's ~urphy an~ ~atrly and r~quested that eny pending admtntstrattve "security review" of her prescribed treatment be "expedtt~d," due to th~ continual d~tertoratton tn her mental health and well-being. ~x.-11. (A copy of this correspondence was also directed at defendant nennehy's attention as well. tx.-1~).
42) On 5/5/0~, Rattista agair wrote de•endant Murphy, regarding not receiving any response to her request ~~ove, ~~ well as bringi~g to his attenticn the extreme profoun~ effects she was experiencing tn the delay in her prescrited treatment. Ex.-
13 •
43) On 5/9/05, Ratttsta was removed from t~e ge~eral oopul,tton of the MTC and placed in its segregation {minimum privilege) unit o~ administrative watch, due to another emottonal breakdown over the stress and anx~ety she was experiencing tn the delty in her prescribed treatment.
44) Plso on 5/9/05, defendant Martin informed Rattista that her medical prescription (at ~~37-3R, ahove) was currently bet~g reviewed by deTendant UMCMP "to determine it's appropriate-
ness and necessity." as well as by noc admi"tstrators "to deter-

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min! any pot~ntial s~curity contrai~dicaticns." tx.-14, 45} On 5/13/~5, Battista wrot~ ~~~~nrlant ll~r.HP of h~r con-
cerns and questions, relevant to why they w~re conductirg a medical review of the appropriateness and nec~ssity of their own sub-contracted medical professional's treatment recommendations. Fx.-15.
46) In her correspond~nce, Ratttsta also pointed out that, the right to the prescribed treatment at issue was not 5ust a question of Battista's health and well-betnq. ~ather, the question must also be focused on "whether the prescrt~ed treatment ts ststutorily mandated and necessary.• ld,
47} On 5/17/05, due to the conti~ual deterioration in Battista's mental health and well-hetng, her treati~g psychiatrists felt it medical necessary to ~ouhle the dosage in her Antidepressants.
48) On 5/27/05, defendant Martir informed Rattist~ that her correspondence to defe"dant Dennehy (at '41, ahov~) was re9erre~ to her for response. Fx.-16.
49) D~fenrlant Marttr reiterated to Pattist~ that her prescribed treatment still was unryer revt~w. However, ~e9en~ant Martin now alleges that the "review" 1s bei~g conducted in "the context of a prison environment.• Jd.
50) On 6/2/05, Battista wrote defendant Martir of her concerns that her status as heing "civilly" committed, as weTl as the implication that being dented prescribed treatment wnul~ have on the remedial aspect of her commitment ts not heing co~­ stdered. Blttista further questioned why the alleged pendi~g review was bei"g conducted in the context of a "orison environ-

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ment,• rather than in the context of • •mental health facility.• Ex.-17. (A copy o' this correspondence was also directed at defendant Dennehy's attention. Fx.-1~).
51) In her correspondence, Ratt~sta also notified defendant's ~arttr and nennehy of her trtent on pursu1~q a TQn, should she not receive her medically prescri~ed treatm~nt tr ~n appropriate time period. Id.
~~) Patttsta was competently cli~teally diagnose~ hy two separate gender specialist ~~ meetirg all of the diagnostic criteri• for ·~ender !~entity Otsorder(~OS).•
53) Consistent with the ahove c11r1c~l diagnosis, th~ examirer's determined that it is clirically an~ m~dically nec~ssary and appropriate f~r Rattist~ to ~e provid~d cross-g~nder hormon~l th~rary, and ir~tvidual psychothprapy hy a per~on ~xp~rt~nc~. and/or trained to counsel p~rsons wtt~ gender rltsorrlers, to RllPPort the adjustment that the hormones wilT ~ring.
54) Also consistent wtth the ahnve clinical diagnosir, the cl1n1cal treatment outl1nerl hy the Harry Renja~tn International Standards of Care neem tt cltnically and me~1ca1ly nec•ss,ry and appropriate for Ratttsta to wear clothing that ts consistent with her female gender expression, tnd prnhthttiro her from doina so could cause grievous harm tn Rattista's ment~l health an~ well beinq.
~~) In addition to being cltn1ca11y and m~dtcally necessary and appropriate, Battista's wearing clothing typically worn hy females is a stBtement a"d ~xpr~ssion or w~o she ts.
56) Battista's medical records reveal that she was horn

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w;th a rare mentc~1 connition r~~~rren to ~Y th~ me~ical profession as "Congenital Adrenal Hyperplast•." T~ts condition is an "int~rsex" condtttcn ann "physical tmp~trment• at hirt~, ~n~ correspon~s with t~e existence o~ th~ ~hove psyc~ological t~nA­ it'on, "A~nrler Identity ~tsord~r(Nn~).•
~7) As ~ proxtm;t~ res11lt o~ the A~~~nd~nt's withholding medically prescrt~~d treatment, Ratttsta has h~~n ~~nied t~e nonortuntty to eli•inate risk factors rlurtrg th~ cours~ o~ ~er rivi1
commttm~nt.
;R) As an additional proximate result of the de~endant's wtthho1dtnq medically prescrt~~d treatment, Patttsta has suffered th~ ~n11nwirg immediate and trreparahl~ h~rm: extrem~ stress and anxt~ty. a s~nse o~ hopelessnes! in tr~atment, whtch has a•fected her e1ting ann sleeping habits, IS well as h~r weight ~n~ ~~illty to function in her normal ~aily routires, ~~well 8~ R~ility tn part,ctpate productively tn on-goin9 treatm~nt for tho~P sPxual offending b~havtors which ;he we~ originally commited un~er. ~uch harm 3od th~ pot~nttal impact on Rattist~·s cnnttnu•~ lth~rty is netth~r compensable of specul1tiv~.
59) De~endant's hav~ m•de an Rrhitrflry ~"~ me~trally unsupported decision to forego provi~ing Rattist.~ with n~cess~ry orescribed medical treatment.
60) Defendant's have acted in a manner which tr~ats P~tttsta, becausP of the nature o' her me~ical tq~ m~nt~l hea1th condition, ~ifferently from other stit~ prison~rs and n~t•~nts Rt th~ MTr. suffering from ~quivalent merlic~l 1nd m~nt~l health conrlitions.
61) Oe~~n~8nt's hav~ treate~ Pattista's ~~rltcal ~on m~ntal

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health needs dtfferently from t~ose other stmtl1rly sttu~ted inm~tes a~o patients solely on the h~sts of cle~s, t.e., inmates and patients wtth g~nd~r tssu~s.
62) Defendant's not only have a mor~l ohligatt~n to the public, but also have a statutory ohltgatton und~r c.1?qA •to do all that C3n he done to treat and rehahtltt~te" ~atttst~. Tncludtng, but not ltmtted to, treattrg Ratttsta's "gend~r •sstles.•
61) Karl ~atttsta bee~ provt~~d such medically pr~scrt~ed treatment, her rtsk of commttttrg 1 n~w sexu~l offense wool~ have heen eliminated. As studt~s r~veal that th~ ris• of renffendtrg ~~ong c8strat~d sex offen~ers is virtually nil.
~4) The acts of the defendant's hav~ b~~n conscious, r~­ peated and hav~ t"t~nttcnally or r~cklessTy and neglig~ntly e&used Rattista extr~m~ emotional distress.
fi5) Upon inform~t1on and helt~f, ~e~~nrlant's ~re rroviring state prisoner's hous~d in the g~neral oopulaticn of ~" all mal~ adult state prison with hormonal therapy, as w~ll as the right to retain, at their own expense, female clothing ann ma~~-un. T~is has apparently caused no s~rurtty prahT~~s.
66) •s a practical matter, to the h~st of Ratttst3'S oersonal knowledg~ and helie~, her att~~pt ft aope~ring 'eminine hy altering her m~le clothing in a f~minine f•s~ion, anrl fashioning make-up from colored pencils ~nrl wearing her hair in 'emintne style, has never cause~ undue disruption, disorder, or distraction within t~e DOC, sine~ 1qq; thru ~ate.

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COUNT I 67) Battista incorporat~s hy re~er~nc~ and realleges paragraphs 1 through 65 of the Complaint as if fully set forth herein. 68} By withholding necessary medically prescri~ed treatment, ~efendant's have violated Rattista's constitutional suhstant•v~ due process rights in treatment; 103 D~C 610.00("~edical ~ervices"); 103 DOC 650.00("Mental Health Services"): an~ A.l. c.1P1A, SP.
COUNT II 69) Battista incorporates by referenc~ and re1ll~ges paragraphs 1 through 66 of the Complaint as if fully set forth herein. 70) By withholding necessary medically prescribed tr~atm~nt, where such treatment has been provided to stJte prisoners suffering from analagous medical conditions, without a rational basis and legitimat~ purpos~. defendant's have violated Ratttsta's constitutional rights to equal protection.
COUNT I II 71) Battista tncorporat~s by r~ference tnd realleges paragraphs l through 66 o~ the Complaint as if fully set forth herein. 7P) ~y withholding necessary meriictlly prescrihed treatment, d~fendant's actions have vtolat~d Ritttsta's constitutton1l rtgnts to be free from ~iscrtmtnatton based on sex, disability, gen~er identity, and expression.
('Qli~T IV
73) Battista tncorporat~s by r~f~r~nce ann reall~ges oaragraphs 1 through 66 of the Complatnt iS if fully set forth nerein.

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74) By withholding nec~sstry medically prescribed treatm~nt, defendant's acttons have d~nied Battista the opportunity to eliminate risk factors during the course of her ctvtl commttm~nt. Thus, impacting Batttstt's continued lt~erty.
COUNT V 75) Battisti incorporates by reference and realleges paragraphs 1 through 66 of the Compltint as if fully set forth herein. 76) By withholding necessary medically prescrtDed treatment, defendant's have acted tn an intentional or recklessly negligent manner causing Battista extreme emotional distress.
REliEF REQUESTED: WHEREFORE, 8atttsta request the following relief: (a) a decl1ratory judgment that the defendant's have a const-
ttuttcnal and statutory obligation to ensure that Ratttst• receives idequate and necessary medical treatment for her •gender issues;"
(h) a declaratory judgment that th~ d~fendant's acts ~~v~ constituted "delirerat~ indifference" to Rattista's prescri~~~ medical treatm~nt;
(c) a declaratory judgment that the defendant's acts hav~ denied Battista e~ual prot~cttcn;
(d) a decl1ratory judgment trat tne def~ndant's acts have constituted discrtminatton based on sex, ~isahiTtty, gender irlentity, and expression;
{e) issue a temporary restrairing order an1/or preliminary injunction against defendant's prohibiting them from wtthhol~ing

Case 1:05-cv-11456-DPW Document 3 Filed 07/08/05 Page 15 of 16
-166attista's medical prescripticn, ~rev~cusTy prescrihed ~Y'
rr. Marta W~rt~ on April 1?, ?~05:
{f) issue a per•anent tnjunct~on ~gatnst the defendant's, t~eir successors In office, ag~"ts ~"~ empToy~es and ~?T ot~er persons ~cttrg in concern an~ participat~cn with them, from withholding frcm ~atttsta 1ny ~nd all treatment recommend•ttons ~eemed cltrtcally and medically necess~ry 1nd aporourt2te hy medical orofessionaTs a~dresstrg Ratttst~·s gender issues;
(g) Issue a permanent tnjunct,cn egat~st the de•endint's,
p!rsons acting in concern and parttctpattcn wit~ th~m. -rom ~ro~1bttt~g Battista from we~rtrg female cToth1rg a"~ ustr~

and proper.

o~spectfu1ly su~~1tte~,

~0h.ht~t~~~~St~ #M:,~o~n

Mass. Tr~atm~nt renter

3C ftdmtntstrattcn ~~.

Mass. qrt~gewater,

n?1?1-~?~n

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I, Sandy J. ~uttist~. being duly sworn. Aep~ses and says
that r am the plaintiff tr t~e ibove-capt1cne~ •ctlcn, t~at she
has read the foregoing Complitnt end knows th~ contents thereof,
that the s~•e ts true and accurate lo the be•t ur her own oersonal
knowledge and belieF, except as to matters th~retr st1t~d urnn tn'ormlticn and beT1ef, which matters she heTteves to hp true ind accurate.
Signed under the pairs and pena7t1es o' ~erjury this
__ ~~- day o' ,lv7y, ?I'Jfl~.
~Ma~ss4.~.t!.enitMCe~nt~1r 30 Arlm1n1strat1cn q~.
Rridgew~t!r, M•s~. 0?~?".-~?1fl

 
 Case 1:05-cv-11456-DPW Document 81 Filed 01/10/08 Page 1 of 22

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY l BATTISTA,

)

)

Plaintiff,

)

)

v.

)

)

HAROLD W. CLARKE,

)

KATHLEEN M. DENNEHY,

)

ROBERT MURPHY,

)

TERRE K. MARSHALL, and

)

SUSAN J. MARTIN, in their official and individual

)

capacities;

)

)

Defendants.

)

__________________________________

)
)

Civil Action No. 05-11456-DPW

FIRST AMENDED COMPLAINT Plaintiff Sandy J. Battista for her Complaint states as follows:
INTRODUCTION I. Sandy J. Battista, a civilly committed person within the Massachusetts Department of Corrections (the "DOC"), was first diagnosed with Gender Identity Disorder ("OlD") in 2001. This diagnosis was later confirmed in 2004 by the DOC's own contracted medical provider. The DOC's doctors subsequently prescribed Ms. Battista with a GID treatment plan that includes (i) psychotherapy, (ii) hormone therapy; (iii) laser hair removal; and (iv) access to feminine clothing and products from the DOC's canteen. In 2005, the prescription for hormone therapy was filled by the DOC's pharmacist and sent to the Massachusetts Treatment Center, where Ms. Battista is housed. Before delivering the prescribed medication, however, DOC officials -none of whom are medical professionals- unilaterally decided to withhold her treatment indefinitely, despite the repeated and forceful objections of its own

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doctors. For over two years, the DOC, through the named Defendants, has ref·used to deliver the treatment plan prescribed by DOC physicians. The DOC's sole rationale for withholding this treatment is a "security review" that has been ongoing for almost three years. This civil rights action seeks declaratory and injunctive relief to ensure that Ms. Battista receives her prescribed GID treatment plan. Ms. Bat1ista also seeks damages for the years of extreme physical and emotional pain she has suffered as a result of the Defendants actions.
JURISDICTION AND VENUE 2. This Court has subject mat1erjurisdiction over all claims arising under federal law pursuant to 28 U.S.C.§§ 1331 and 1343 and over the request for declaratory relief pursuant to 28 U.S.C. §§ 1331, 2201 and 2202. This court has supplemental jurisdiction over all state law claims under 28 U.S.C. § 1367(a). 3. Venue lies in the District of Massachusetts pursuant to 28 U.S.C. § 1391(b). The events giving rise to this action occurred in this District and, on information and belief, the Defendants reside in this District.
PARTIES 4. Plaintiff, Sandy J. Battista is, and was at all times relevant hereto, a civilly committed patient in the care and custody of the DOC housed at the Massachusetts Treatment Center ("MTC"), 30 Administration Road, Bridgewater, Massachusetts. 5. Defendant Harold W. Clarke is the Commissioner of the Department of Corrections in the Commonwealth of Massachusetts. Mr. Clarke is ultimately responsible for and controls the care and custody of the Plaintiff and the operation and actions of the DOC. He is being sued in both his official and individual capacity. 6 Defendant Kathleen Dennehy is the former Commissioner of the Department of Corrections in the Commonwealth of Massachusetts. As Commissioner, Ms. Dennehy was
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ultimately responsible for and controlled the care and custody of the Plaintiff and the operation and actions of the DOC between early 2004 and April 2007. She is being sued in both her official and individual capacity.
7. Defendant Susan J. Martin was at the time of certain allegations in this complaint the Director of the Health Services Division ("HSD") of the DOC. As Director of HSD, Ms. Martin was responsible for ensuring the proper administration of prescribed medical treatment and was ultimately responsible for the health of persons within the DOC. Ms. Martin is being sued in both her official and individual capacity.
8. Defendant Tene K. Marshall is, and was at the time of certain allegations in this complaint, the Director of the Health Services Division ("1-ISD") of the DOC As Director of 1-ISD, Ms. Marshall is responsible for ensuring the proper administration of medical treatment and is ultimately responsible for the health of persons within the DOC Ms. Marshall is being sued in both her official and individual capacity.
9. Defendant Robert Murphy is, and was at all times relevant to this action, the Superintendent of the MTC. Mr. Murphy is a DOC employee responsible for all activity within the MTC, including the health and wellbeing of Ms. Battista and its other civilly committed inmates. Mr. Murphy is being sued in both his official and individual capacity.
I0. The DOC is a department of the Commonwealth of Massachusetts. STATEMENT OF FACT
PlaintifFs Geuder Identity Disorder I L Gender Identity Disorder (OlD) is defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex. People with gender identity disorder may act and present themselves as members of the opposite sex and may express a desire to alter their bodies. People with OlD desire to live as members of the opposite
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sex and often dress and use mannerisms associated with the other gender. The disorder affects an individual's self-image and can impact the person's mannerisms, behavior and dress
12. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM4") recognizes GID and states that it is identified by "[a] strong persistent cross-gender identification" and "[p]ersistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex."
13. Professionals and experts on GID have developed written standards of care to guide the diagnosis and treatment of GID. These standards, known as the Harry Benjamin Standards of Care, are an internationally accepted treatment protocol meant to "articulate ... professional consensus about the psychiatric, psychological, medical and surgical management of gender identity disorders."
14 If not addressed, GID can cause a poor self-image, social isolation and extreme emotional distress. Left untreated, the disorder can cause severe depression and anxiety, and interfere with an individual's ability to function in the world, leading to further isolation, selfabuse and even suicide.
15. Though still biologically male, Ms. Battista identifies as a female. Phrased simply in non-medical terminology, Ms. Battista is a female in a male body.
16. Within the limiting conditions of civil confinement, Ms. Battista has attempted to alter her appearance, mannerisms and dress to conform to her gender identity. She prefers to be referred to by feminine pronouns and, in July 1995, legally changed her birth name to her current, more feminine one
17. Since 2001, three separate medical professionals and the DOC's own medical providers have diagnosed Ms Battista with GID, each finding that Ms Battista has met the
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diagnostic criteria and each recommending that she be treated with appropriate psychotherapy and hormone therapy in accordance with recognized clinical guidelines.
UMCHP is Solely Responsiblefor the DOC's Medical Decisions 18. The DOC contracts with private vendors to provide medical, dental and mental health services to criminally and civilly committed inmates within the DOC's custody. 19. Pursuant to DOC regulations, the DOC's private medical contractor has full responsibility for all decisions related to the type, timing and level of medical and mental health services provided to inmates. The relevant DOC regulation states:
In concert with the Division of Health Services, the contractual medical provider shall be solely responsible (or making all decisions with respect to the type, timing and level of services needed by inmates covered under the contractual agreement with the Department of Correction... Matters ofmedical, mental health and dental judgment are the sole province of the responsible physicians, psychiatrists or dentists. 103 DOC 610.01 (emphasis added). 20. At all times relevant to this action, the University of Massachusetts Correctional Health Program ("UMCHP") was under contract with the DOC to provide all inmate medical and mental health services, including those of Ms. Battista. Under DOC regulations, UMCHP has sole authority to diagnose and set medical and mental health treatments for Ms. Battista. 21. Repeatedly over the last three years, UMCHP has submitted its diagnosis and GID Treatment Plan for Ms. Battista to the DOC. The most recent letter by UMCHP states that "all of the interventions and treatments described in this letter should be provided on an ongoing basis without further evaluation for necessity." The letter unequivocally sets forth UMCI-IP's treatment plan, which includes (i) psychotherapy, (ii) hormones, (iii) facial and chest hair removal, and (iv) access to feminine clothing and canteen products. A copy of the doctors' letter, dated October 17, 2006, is attached hereto as Exhibit A
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22. Despite the repeated and consistent advice of its physicians, the DOC has refused to implement the recommended treatment plan and has indefinitely withheld treatment from Ms. Battista based on a still-ongoing "security review."
Plaintiff's GID Diagnosis by the DOC's Own Doctors 23. Between November 2003 and May 2004, Ms. Battista sent a series of separate correspondence to UMCHP and DOC officials, including Defendants Dennehy, Martin and Murphy, requesting an evaluation of her gender issues by UMCHP. 24. UMCHP subsequently requested the expertise of Fenway Community Health ("Fenway") to assess the possible diagnosis of OlD and to help UMCHP determine a proper treatment. 25. On August 10, 2004, the DOC, UMCHP and Fenway arranged for two separate independent gender specialists -Dr. Kevin Kapila, MD, and Dr Randi Kaufman, PsyD- to examine and evaluate Ms. Battista and to recommend a treatment plan to address her gender issues. 26. On November 16, 2004, Dr. Kapila and Dr. Kaufman submitted their repmt and recommendation to UMCHP. 27. The report applies the Harry Benjamin Standards of Care and diagnoses Ms. Battista with OlD. The report states that "[t]he Benjamin Standards of Care call for the patient to be both eligible, and ready, to begin hormone treatment" 28. In its conclusion, Dr. Kapila and Kaufman's report states:
It is therefore the clinical recommendation of these evaluators that Sandy Jo have her Gender Identity Disorder addressed through hormone administration and ongoing psychotherapy to support the adjustment of the transition the hormones will bring. The psychotherapy should be with a clinician who is knowledgeable about gender identity issues ....
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29. Fenway provided its report and recommendations to UMCHP, which later reviewed and accepted their diagnosis and recommendation.
30. On April 12, 2005, UMCHP referred Ms. Battista to Dr. Maria Warth, an endocrinologist at Lemuel Shattuck Hospital ("LSH"), for a recommendation of an appropriate hormone prescription. LSH is the designated medical facility for all DOC inpatient admissions, pursuant to I03 DOC 604.02 and provides medical services to DOC facilities across the Commonwealth, including the MTC
31. Dr. Warth recommended to UMCHP a medically appropriate prescription for Ms. Battista's hormone therapy. UMCHP reviewed and accepted the recommendation.
32. On April 14, 2005, Dr. Friedman -UMCHP's in-house physician at MTCreviewed, approved and signed Ms. Battista's prescription for hormone therapy as recommended by Dr. Warth and Fenway.
13. On information and belief, the prescription was filled by the state office of pharmacy services and returned to MTC for distribution to Ms. Battista.
.34. Sometime after the prescription was filled, the pharmacist and/or MTC Heath Services personnel were instructed not to distribute the hormones to Ms. Battista On information and belief, this instruction came from DOC officials who are not and were not medical professionals.
The DOC's Refusal to Allow Treatme11t a11d the Pai11jul Effect 011 Ms. Battista 35. Starting on April 14, 2005, the day her hormone prescription was to be filled, Ms. Battista wrote numerous letters to the Defendants inquiring about the status of her prescription and other treatment
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36. On April 25, 2005, the MTC's Health Services Administrator, Maryanne Percuoco, told Ms. Battista that Defendants Dennehy, Martin and Murphy had an administrative "hold" on her medical prescription pending a "security review."
37. On April 26, 2005, after hearing that the DOC refused to fill her prescription, Ms. Battista became overwhelmed with anxiety and a sense of hopelessness and suffered an emotional breakdown.
38. Ms. Battista was immediately placed under a psychiatrist's care. She was prescribed Doxepin and Prozac for depression and was provided Benadryl to aide sleep.
39. The antidepressants, however, treated only her anxiety and not the underlying cause of her emotional distress -namely, her OlD. Thus, Ms. Battista's mental health further deteriorated and her emotional anguish increased as time passed with no response from the DOC on the status of her treatment.
40. On April 26, 2005, Ms. Battista notified Defendant Murphy to request that any pending administrative "security review" be expedited due to the continual deterioration of her health and well-being.
41. On April 27, 2005, Ms. Battista wrote a Jetter to Defendant Dennehy explaining her waning mental health and asking that the DOC's "security review" be expedited.
42. On May 5, 2005, after receiving no response, Ms. Battista again wrote Defendant Murphy to explain the extreme and profound effects on her from the delay in her prescribed treatment.
43. On May 9, 2005, Ms Battista experienced a second severe emotional breakdown from the constant stress and anxiety that resulted from the DOC's failure to provide her prescribed treatment and the general unresponsiveness of each Defendant
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44. As a result of this emotional collapse, Ms. Battista was placed in a segregation unit in the MTC and placed on "crisis" watch When on "crisis" watch, Ms. Battista was locked in a solitary room naked with only a mattress and security blanket She was watched constantly for two to three straight days.
45. In a letter dated May 9, 2005, Defendant Martin informed Ms Battista that her medical prescription was currently being reviewed by UMCHP "to determine it's appropriateness and necessity" as well as by DOC administrators "to determine any potential security contraindications.'' As stated more fully above, however, UMCHP has steadfastly backed its GID diagnosis and its treatment plan, which includes its prescription of Ms. Battista's hormone therapy. Indeed, UMCHP explicitly states that its treatment plan should "be provided on an ongoing basis without further evaluation (or necessitv." Exhibit A (emphasis added).
46. On May 11, 2005, the DOC denied Ms. Battista's Inmate Grievance Form seeking her prescribed GID treatment or, in the alternative, to expedite the security issue. Ms. Battista then appealed to the superintendent, Defendant Murphy, who promptly denied her grievance appeal stating that the "[m]atter is currently at the level of a medical and clinical decision" and advised Ms. Battista to "discuss [her] concerns with the Medical Director."
47. On May 17, 2005, due to the continued deterioration in her mental health and well-being, Ms. Battista's treating psychiatrists felt it medically necessary to double the dosage of her anti-depressant medication Once again, this treatment did not negate the ever-increasing strain from her failure to receive GID treatments.
48. In a letter dated May 27, 2005, Defendant Mmiin reiterated to Ms. Battista that her prescribed treatment was still under review by "medical and security personneL"
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49. Over the next several months, Ms. Battista continued to write DOC officials about her health and her desperate need for GID treatments. As the DOC continued to withhold treatment, Ms. Battista's mental health disintegrated.
50. In October 2005, Ms. Battista attempted to castrate herself with a razor blade in her cell. Ms. Battista was trying to rid herself of the testosterone produced in the male testes. Since Ms. Battista could not receive hormone therapy, she sought to rid herself of her testosterone in a self abusive way.
51. Upon slicing her testicles with a razor blade, Ms. Battista became afraid at the amount of blood that issued forth from the opening and stopped her incision Ms. Battista, while sitting in a pool of blood, stitched herself back up with a needle and thread.
52. A day after the wound was sewn, the area around the incision became infected and swollen. Ms. Battista was in a great deal of pain for several days.
53. After seeking medical treatment, Ms. Battista was prescribed antibiotics and again put on "crisis" watch for three to four days. She has petmanent scarring from this attempted castration.
54 Since April 2005, Ms. Battista's eating and sleeping habits have been continually and severely affected.
55. Without the hormones, hair removal and feminine products, Ms. Battista often starves herself to get rid of muscle mass and appear more feminine At times, Ms. Battista also binge eats from depression and anxiety before forcing herself to vomit
56. Since the DOC's initial denial of hormone treatment in April 2005, Ms. Battista has lost approximately 30-40 pounds and now weighs a mere 130 pounds.
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57c Moreover, since the denial of treatment, Msc Battista's struggles to function in her normal daily routines and is unable to fully concentrate on her sex offender treatment
58c As of the date of this Complaint -almost three years after Ms. Battista's prescription for hormones was first written- the Defendants have yet to provide Msc Battista with a decision on the "security issues" sunounding her treatment
59 As explained above, UMCHP has never deviated from its GID diagnoses of Msc Battista nor her prescribed treatment of hormone therapy.
60. In or around June 2005, a DOC mental health clinician informed Ms. Battista that all previous and current medical recommendations for "cross-gender hormone treatment" were put "on hold" by the DOC until further notice. He informed her that the DOC would not make a decision regarding her OlD treatment plan any time in the near future.
The DOC's Attempts to Obstruct and Undermine UMCHP's Medical Judgment 61. On or about December 21, 2005, Defendant Marshall and other DOC officials met with UMCHP to discuss Ms. Battista's OlD diagnosis and treatment. At the meeting, as described in a July 6, 2006 letter from Defendant Marshall, DOC officials allegedly instructed UMCHP that "it is your responsibility as the contractual medical and mental health provider to review all outside consultant's evaluations... based on what proposed interventions are clinically appropriate and medically necessary." 62. Despite this, and despite UMCHP's repeated assertions that Ms Battista's prescribed treatment is in fact clinically appropriate and medically necessary, the DOC continued to delay and obstruct UMCHP's prescribed treatment for Ms. Battista. 63. After the DOC delayed UMCHP's medical directives for over a year, UMCHP once again laid out Ms Battista's OlD Treatment Plan on April 19, 2006. In no uncertain terms,
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the treatment plan directed the DOC to provide Ms. Battista with (i) psychotherapy, (ii) hormones, (iii) facial and chest hair removal, and (iv) access to feminine clothing and canteen products.
64. On July 6, 2006, Defendant Marshall wrote a letter to Patti Onorato, the Executive Director ofUMCHP. In the letter, Ms. Marshall states:
Neither the Superintendents of the institutions where these inmates diagnosed with GID reside, nor the Commissioner, are in a position to interpret the ambiguous and broad clinical language set forth in the Fenway Clinic evaluations that each inmate diagnosed with GID be afforded the HarTy Benjamin Standards of Care (SOC). The [DOC] is not in the position of making any OlD treatment recommendations, but reviews the recommendations proposed for specific security related concerns. 65. Despite her assertion that the DOC's only concern is security, Ms. Marshall directly challenges the reasoning behind UMCHP's treatment plan. Ms. Marshall states that "your treatment proposal for Mr. Battista, which specifies counseling, hormones, facial and chest hair removal, and access to feminine clothing and canteen products .. does not reflect that in fact Mr. Battista is already receiving mental health counseling...." The letter further challenges each of UMCHP's treatment recommendations as "lacking" and "unclear." 66. Finally, Defendant Marshall states that "[w]e await more clarity in your response so that [Defendant Murphy] may begin a security review for Mr Battista." Thus, in July 6, 2006 -over a year after originally withholding Ms. Battista's prescription- the DOC had yet to even begin the security review that Defendant Martin slated was ongoing in May 2005
UMCHP Stands By its Diagn05is and Treatment Plan 67. On October 17, 2006, Dr. Arthur Brewer, Program Medical Director of UMCHP, and Dr. Kenneth Appelbaum, Director of Mental Health for UMCHP wrote to Defendant Marshall to further stress the importance of their treatment plan for Ms. Battista. See Exhibit A.
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68. In the letter, Drs. Appelbaum and Brewer further clarified UMCHP's original diagnosis and recommendations for treatment, stating:
Dr. Warth, endocrinologist from LSH, has recommended that Sandy Jo Battista started on Lupron l mg subcutaneously daily and Estradiol 0.05mg daily via patch.
69. The letter goes on to state:
Laser hair removal would be performed at Boston University Dermatology., Lidocaine topical cream 2.5% will be applied to the area to be treated just prior to transport by medical staff. Post treatment requires the patient apply Hydrocortizone cream 2.5% twice a day to the treatment area until the next scheduled treatment Most patients require ten treatments and the treatments occur every 6-8 weeks.
70. As for feminine dress, the UMCHP doctors reiterate that :
[W]e have again reviewed the question of access to feminine clothing and canteen items with our GID consultants. They have unequivocally informed us that access to such items is an "essential" component of the management of GID. !d. (emphasis added).
71. UMCHP further stresses that "we agam recommend that, in the absence of
security related concerns and restrictions, the inmate be allowed to choose on an ongoing basis from all female canteen items .. " !d.
72. The letter ends: Based on the consistent recommendations of our consultants, which we have previously shared and endorsed, we are again recommending that. ... all of the interventions and treatments described in this letter should be provided on an ongoing basis wit/tout further evaluation [or necessitp_
!d. (emphasis added).
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73c The only GID treatment the DOC does provide Ms. Battista is an individual counseling session with Diane McLaughlin, a mental health administrator with no prior GID experiencec These sessions are not psychotherapy sessions, but merely consist of a brief "check in" once per month for less than five minutes per session.
74. Over one year after the date of UMCHP's letter and three years after Ms. Battista's original diagnosis, the DOC has yet to institute UMCHP prescribed treatments.
The DOC's Treatment of Other Inmates 75. Upon information and belief, the DOC provides hormonal therapy and access to female canteen items to state criminal inmates who are similarly diagnosed with GIDC The continued provision of these GID treatments to inmates under tighter security restrictions than Ms. Battista demonstrates that no genuine security issues exist with regards to Ms. Battista's treatment 76. Upon information and belief, female prisoners and civilly committed inmates have access to different products and clothing in the DOC canteen than male prisoners and civilly committed inmates. These products include, inter alia, makeup, female clothing, female deodorant and feminine hygiene productsc 77. Upon information and belief, the DOC does not unduly delay or otherwise withhold medical treatment for state criminal inmates or civilly committed individuals with any non-GID diagnosisc 78. Unlike with criminally convicted prisoners, civil commitment is not punitive in nature and the DOC in running the MTC has a statutory obligation to provide adequate treatment to civilly committed residents
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79. Upon information and belief, the DOC does not -and cannot under its own regulations- wholly reject the medical decisions of UMCHP or any other contracted medical or mental health provider for any non-GID diagnosis.
COUNT I Violations of the Fourteenth Amendment to the United States Constitution
Due Process
(42 u.s.c. § 1983)
80. Paragraphs I through 79 are incorporated by reference as if set forth fully herein. 8I. By withholding necessary medical treatment, Defendants, acting under color of state Jaw, have deprived and continue to deprive Plaintiff of her life, liberty and property without due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States. 82. Ms. Battista is a civilly committed person and, as such, is entitled to greater protections than a criminal inmate housed for punitive purposes. 8.3. As a result of Defendants' actions, Plaintiff has suffered substantial injury.
COUNT II Violations of the Eighth Amendment to the United States Constitution
Cruel & Unusual Punishment
(42 u.s.c. § 1983)
84 Paragraphs 1 through 8.3 are incorporated by reference as if set forth fully herein. 85. Plaintiffs has a serious medical need for OlD treatment in accordance with the diagnosis of UMCHP, her treating physicians and medical personnel including the recommendations of consulting physicians experienced in the treatment of GID 86. Plaintiffs serious medical need has been withheld by Defendants and it goes untreated to this day.
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87, Defendants have been deliberately indifferent to Plaintiffs serious medical needs and have denied her treatment for reasons that are unrelated to her medical needs or legitimate security concerns, Defendants know that medical experts consider Plaintiffto be at risk for serious medical harm and have knowingly disregarded that risk,
88, Defendants' denial of Plaintiffs medically necessary care is deliberately indifferent and constitutes cruel and unusual punishment in violation of Plaintiffs rights under 42 tLS,C § 1983 and the Eighth Amendment to the United States Constitution
89. As a result of Defendants' actions, Plaintiff faces a substantial and imminent risk of serious medical harm.
COUNT III Violations of the Fourteenth Amendment to the United States Constitution
Equal Protection
(42 u.s.c. § 1983)
90. Paragraphs 1 tluough 89 are incorporated by reference as if set forth fully herein, 91. Defendants, under color of state law, have deprived and continue to deprive Plaintiff of her right to equal protection of the laws, as secured by the Fourteenth Amendment to the United States Constitution and 42 U.S,C. § 1983, by withholding medically necessary treatments for GID patients while providing full access to medical care for non-GID patients. Thus, the Defendants have and continue to discriminate against Plaintiff on the basis of her gender identity. 92. Defendants have deprived and continue to deprive Plaintiff of her right to equal protection of the laws, as secured by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, by withholding medical care from Plaintiff, a civilly committed person, while providing full access to GID treatments to state inmates serving criminal sentences.
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93. Defendants' disparate treatment of Plaintiff is based on Plaintiffs gender identity and civil commitment status and is motivated by discrimination.
94. As a result of Defendants' discriminatory actions, as described above, the Plaintiff has suffered substantial injury.
COUNT IV Violations of Article X and XII of the Massachusetts Declaration of Rights
Massachusetts Due Process (M.G.L. ch. 12, §§ llH-1) 95. Paragraphs 1 through 94 are incorporated by reference as if set forth fully herein. 96. By withholding necessary medical treatment, Defendants, acting under color of state law, have deprived and continue to deprive Plaintiff of her life, liberty and property without due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States. 97. Ms. Battista is a civilly committed person and, as such, is entitled to greater protections than a criminal inmate housed for punitive purposes 98. As a result of Defendants' actions, Plaintiff has suffered substantial injury. 99. The Defendants' interference with Plaintiffs rights secured by Article X and XII of the Massachusetts Declaration of Rights has been accomplished by threats, intimidation or coercion in violation ofM.G.L. ch. 12, § 11!.
COUNTY Violations of Article XXVI of the Massachusetts Declaration of Rights
Massachusetts Cruel & Unusual Ptmi~hment (M.G.L. ch. 12, § Ill)
100. Paragraphs 1 through 99 are incorporated by reference as if set forth fully herein.
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10 I. Plaintiffs has a serious medical need for GID treatment in accordance with the diagnosis of UMCHP, her treating physicians and medical personnel including the recommendations of consulting physicians experienced in the treatment of GID.
102. Plaintiffs serious medical need has been withheld by Defendants and it goes untreated to this day.
103. Defendants have been deliberately indifferent to Plaintiffs serious medical needs and have denied her treatment for reasons that are unrelated to her medical needs or legitimate security concerns. Defendants know that medical experts consider Plaintiff to be at risk for serious medical harm and have knowingly disregarded that risk.
104. Defendants' denial of Plaintiff's medically necessary care is deliberately indifferent and constitutes cruel and unusual punishment in violation of Plaintiffs rights under M.G.L ch. 12, §II/ and Article XXVI of the Massachusetts Declaration of Rights.
105. As a result of Defendants' actions, Plaintiff faces a substantial and imminent risk of serious medical harm.
COUNT VI Violations of Article I of the Massachusetts Declaration of Rights
Massachusetts Equal Protection (M.G.L. ch. 12, § Ill)
I06. Paragraphs I through I 05 are incorporated by reference as if set forth fully herein. 107. Defendants, under color of state law, have deprived and continue to deprive Plaintiff of her right to equal protection of the laws, as secured Article I of the Massachusetts Declaration of Rights and M.G.L. ch. 12, §111, by withholding medically necessary treatments for OlD patients while providing full access to medical care for non-OlD patients. Thus, the
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Defendants have and continue to discriminate against Plaintiff on the basis of her gender identity.
I 08. Defendants have deprived and continue to deprive Plaintiff of her right to equal protection of the laws, as secured by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, by withholding medical care ti:om Plaintiff, a civilly committed person, while providing full access to OlD treatments to state inmates serving criminal sentences.
109. Defendants' disparate treatment of Plaintiff is based on Plaintiff's gender identity and civil commitment status and is motivated by discrimination.
II 0. The Defendants' interference with Plaintiff's rights secured by Article I of the Massachusetts Declaration of Rights has been accomplished by threats, intimidation or coercion in violation ofM GL. ch. 12, §I II.
Ill. As a result of Defendants' discriminatory actions, as described above, the Plaintiff has suffered substantial injury.
COUNT VII Negligeuce 112. Paragraphs I through Ill are incorporated by reference as if set forth fully herein. 113. Defendants have a duty not to unduly interfere with OMCHP's medical diagnosis and treatment plan for Ms. Battista. Defendants have a futiher duty to expedite any security review and not unduly delay a decision that would affect the Plaintiff's medical and mental health.
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114. By withholding UMCHP's treatment plan under the guise of a security review for a period of almost three years, as set forth more fully above, Defendants have breached their duty to Plaintiff.
115. As a result of Defendants' actions, as described above, the Plaintiff has suffered substantial injury.
COUNT VIII Intentional Infliction ofEmotional Distress 116. Paragraphs I through 115 are incorporated by reference as if set forth fully herein. 117. Defendants' conduct in withholding Plaintiffs medical care against the express advice of the DOC's medical providers, as more fully above described above, was extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable. 118. Defendants intended to inflict -or knew or should have known that their conduct would likely result in- emotional distress to Plaintiff: 119. The Defendants' actions were the proximate cause of Plaintiffs emotional distress and, as outlined above, Plaintiffs emotional distress was severe and of such a nature that no reasonable person could expect to endure it.
COUNT IX Negligent Infliction ofEmotional Distress 120. Paragraphs I through 119 are incorporated by reference as if set forth fully herein 121. Defendants have a duty not to unduly interfere with UMCHP's medical diagnosis and treatment plan for Ms. Battista. Defendants have a further duty to expedite any security review and not unduly delay a decision that would affect the Plaintiffs medical and mental health.
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122. By disregarding their own regulations and by withholding UMCHP's treatment
plan from Plaintiff for a period of almost three years, Defendants have breached their duty to
Plaintifi
123. Defendants' actions, as described above, have caused the Plaintiff severe
emotional distress and physical harm.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
(a) Enterjudgment for the Plaintiff and against the Defendants on all counts of this Complaint;
(b) Declare the practice of denying Plaintiff her GID treatment as prescribed by UMCHP unconstitutional and/or in violation of state and/or federal law;
(c) Declare that Defendant's three year "security review" is impermissibly delayed and that no legitimate security concerns exist that justify denying Plaintiff's prescribed treatment plan;
(d) Enter a permanent injunction against Defendants to prevent the DOC from interfering with the discretion of the medical and mental health professionals involved in Plaintiff's care;
(e) Enter a permanent injunction ordering the Defendants to provide the Plaintiff with GID treatment consistent with the recommendations of UMCHP and Fenway;
(f) Enter a permanent injunction ordering Defendants to provide Plaintiff with adequate psychotherapy in accordance with the recommendations of the DOC' contracted medical and mental health providers;
(g) Enter a permanent injunction ordering Defendants to provide Plaintiff with her prescribed hormone treatment in accordance with the UMCHP GID treatment plan;
(h) Enter a permanent injunction ordering Defendants to allow Plaintiff to access feminine canteen and other products in accordance with the UMCHP GID treatment plan;
(i) Enter a permanent iqjunction ordering Defendants to provide Plaintiff with laser hair removal treatments in accordance with the UMCHP GID treatment plan;
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(j) Award Plaintiff compensatory damages for her physical and emotional pain and suffering resulting from each of the named Defendants' actions;
(k) Award the Plaintiff reasonable costs and attorney's fees pursuant to 42 U.S.C. § 1988; and
(I) Grant such other relief as the Court deems just and proper.

Dated: January I0, 2008

Respectfully submitted,
SANDY J. BATTISTA
by her attorneys,
Is/ Neal E. Minahan
Emily Smith-Lee (BBO# 634223) Neal E. Minahan (BB0#661371) Dana McSherry (BBO #664430) Ada Sheng (BB0#664775) McDermott Will & Emery LLP 28 State Street Boston, MA 02 I 09 tel: 617.535.4000 fax: 617.535.3800

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) on January I0, 2008.
Is/ Neal E. Minahan
Neal E. Minahan

-22-

Case 1:05-cv-11456-DPW
M Unim,ity of Massachusetts UMASS.Medical School

Document 81-2

Filed 01/10/08 Page 1 of 2
UMass Correctional Health University of Massachusetts Medical School One Research Drive, Suite l20C Westborough, MA 01581-3922 USA 508.475.3220 (office) 508.475.3270 (fax)

A Program ofCommomwealth Medicittc

October 17, 2006
Terre Marshall, Director DOC Health Services Division PO, Box426 Bridgewater, MA 02324

-------------.
DEPARTMENT OF CORRECTION
liL ; j 8 2006 4,.t'.&/~(2:,.J._____J

Dear Ms Marshall.
I am writing in response to your July 6, 2006 letter requesting detailed C..ender Identity Disorder (GrD) treatment recommendations for Sandy Jo Battista, M15930
Dr. Warth, endocrinologist fiom LSI-I, has recommended that Sandy Jo Battista be started on Lupron 1 mg subcutaneously daily and Estradiol 0 05mg daily via patch.
Laser hair removal would be performed at Boston University Dermatology located at 930 Commonwealth AvenueWest, in Boston. Lidocaine topical cream 25% will be applied to the area to be treated just prior to transport by medical staff Post treatment requires the patient applies Hydrocortisone cream 2.5% twice a day to the treatment area until the next scheduled treatment Most patients require ten treatments and the treatments occur every 6-8 weeks. Laser hair removal should not be initiated until the patient has been on hormones for a period of time
Please note that, we have again reviewed the question of access to feminine clothing and canteen items with our GrD consultants. They have unequivocally informed us that access to such items is an "essential" component of the management of GID. Feminine attire and make-up assist the patient in "feeling more feminine .... [and] secure in their identity" and provide a "signal to other persons of the social transition .... It is not, however, the standard of care for medical or mental health professionals to weigh the initial or ongoing need for any particular feminine product, or any other treatments with the exception of hormones and sex reassignment surgery (SRS). Only hormones and SRS require the support of the therapist Access to feminine attire and make-up is "based on what the individual wants and needs to feel more feminine ...

1\TTI\CHMENT B

. . Case 1:05-cv-11456-DPW Document 81-2 Filed 01/10/08 Page 2 of 2

Thus, in accordance with the recommendations of our consultants, we again recommend that, in the absence of security-related concerns and restrictions, the inmate be allowed to choose on an ongoing basis from all female canteen items or other sources of feminine attire and products that are routinely available to female inmates.
At this point, the inmate has not made specific requests at this time, however, we repeat our previous recommendations that these items, and any other items that the inmate requests going forward, be provided if they do not pose an unacceptable security risk
Y()uhave also asked \'/hether the treatme11tsand interventionsthl!t we have previously recommended, and are recommending again in this letter, should be provided in a "specific progression" or be subject to "continuous review.. to determine either their efficacy or whether they remain essential " Based on the consistent recommendations of our consultants, which we have previously shared and endorsed, we are again recommending that in the absence of security contraindications all of the interventions and treatments described in this letler should be provided on an ongoing basis without further evaluation for necessity
Sincerely,

Arthur Brewer, MD Program Medical Director UMASS Correctional Health

Kenneth Appelbaum, MD Directm, Mental Health UMASS Correctional Health

cc: Patti Onorato, Executive Director, UMASS Conectional Health

 
 Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 1 of 35
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY JO BATTISTA,

)

Plaintiff,

)

)

v.

)

)

KATHLEEN M. DENNEHY,

)

Commissioner, ROBERT MURPHY, )

Superintendent; STEVEN FAIRLY,)

Director of Security;

)

SUSAN J. MARTIN, Director of )

Health Services; GREGORY J. )

HUGHES, LICSW; and UMASS

)

CORRECTIONAL HEALTH PROGRAM, )

sued in the individual and )

official capacities,

)

Defendants.

)

CIVIL ACTION NO. 05-11456-DPW

MEMORANDUM AND ORDER March 22, 2006
Sandy J. Battista was civilly committed as a sexually dangerous person, pursuant to Mass. Gen. L. ch. 123A, and is currently housed at the Massachusetts Treatment Center for Sexually Dangerous Persons ("MTC"). Battista has been diagnosed with Gender Identity Disorder ("GID"), and in April 2005, a doctor prescribed female hormones to treat the condition.1 This treatment was put on administrative hold pending further review.
Battista, acting pro se, brings this action under 42 U.S.C.
1 Although anatomically male, Plaintiff considers herself to be transgendered and uses female pronouns in referring to herself. In this Memorandum, I acknowledge her preference, and address her as a female.
1

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 2 of 35
§1983 alleging that Defendants' failure to provide her with hormone therapy and their refusal to allow her to wear women's clothing, use feminine hygiene products and makeup, deprived her of constitutional rights to equal protection and substantive due process.2 She also alleges violation of state civil commitment statutes and Department of Correction ("DOC") regulations and raises a claim of Intentional Infliction of Emotional Distress.
Plaintiff has moved for a temporary restraining order and a preliminary injunction requiring Defendants to provide her with hormone therapy forthwith. For the reasons discussed below, I will deny interlocutory relief and dismiss the case as against Defendant University of Massachusetts Correctional Health Program but will grant her recent motion for the appointment of counsel to pursue her claims on the merits.
I. BACKGROUND In 1983, Plaintiff was convicted of rape of a child, kidnapping, and robbery; she was sentenced to 12 to 20 years in prison. Days before her scheduled release in 2001, the district attorney petitioned for her commitment as a sexually dangerous person pursuant to Mass. Gen. L. ch. 123A. In May 2003, a jury
2 Count III states that Defendants "violated Battista's constitutional rights to be free from discrimination based on sex, disability, gender identity, and expression." Complaint at ¶ 72. No provision of the constitution explicitly guarantees those rights in the way Plaintiff asserts them here. I assume that Plaintiff intended to assert discrimination claims under the Fourteenth Amendment, and thus, in this Memorandum, the concerns of Count III will be addressed as properly asserted under Count II (equal protection) and Count IV (due process).
2

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 3 of 35
agreed that she was sexually dangerous and committed her to the MTC, where she remains today.3
As part of the civil commitment proceedings, Plaintiff underwent psychological evaluations by state examiners. One of those examiners, Dr. Katrin Rouse Weir, opined that Plaintiff has a "complex network of issues related to [gender identity], which he needs to work through." Complaint, Ex. 3 at 14. Plaintiff offered to be surgically castrated, but Dr. Weir expressed reservations about the effectiveness of this treatment in Battista's case.4 Id.
During an annual review of Plaintiff's status in April 2004, the MTC's Community Access Board ("CAB") determined that she remained a sexually dangerous person. Complaint, Ex. 7 at 15. The CAB offered no opinion as to how Plaintiff's gender issues related to her risk of criminal activity, but suggested that she explore the connection further during her treatment for sexual deviancy.5 Id.
3 In July 2003, Plaintiff filed a petition in the Superior Court for her discharge from civil commitment pursuant to Mass. Gen. L. c.123A § 9. See Battista v. Commonwealth, C.A. No. 0310744 (Suffolk Superior Court). This court has not advised that a hearing date has been set for the § 9 petition. Weiner Affidavit at ¶ 11.
4 Dr. Weir's reservations stemmed from Battista's history of sexual offense, apparent confusion regarding sexual preference, pedophilia and antisocial personality disorder, and demonstrated aggression and impulsivity. Complaint, Ex. 3 at 14-15.
5 Battista's 2005 annual review noted that she meets regularly with clinical staff to discuss gender identity issues and is receiving treatment for gender reassignment, but she has not made a "genuine effort" to participate effectively in her
3

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 4 of 35
In March and April 2004, Plaintiff submitted written complaints to Commissioner Dennehy, claiming that Dennehy was violating her equal protection rights by denying her hormone therapy and surgical castration while providing it to other prisoners. Complaint Ex. 6. Dennehy referred Plaintiff's complaints to Susan Martin, the Director of Health Services for the Massachusetts Department of Correction. Martin suggested that Plaintiff submit a request for an evaluation with a mental health provider to determine the appropriate treatment for GID. Complaint, Ex. 9.
Upon Plaintiff's request, arrangements were made for her to be seen by two separate, independent gender specialists from the Fenway Clinic in August 2004. Complaint at ¶ 34. The specialists diagnosed Plaintiff with GID, and recommended hormone therapy and psychotherapy ("Fenway Report"). Complaint, Ex. 10 at 6. In accordance with this recommendation, Plaintiff was provided with psychotherapy by a therapist trained to counsel individuals who are undergoing hormone treatment. Complaint at ¶ 36. She was also seen by an endocrinologist. Id. at ¶ 38. Shortly thereafter, MTC's in-house physician, Dr. Friedman, submitted an order to fill Plaintiff's prescription for hormones.6
therapy sessions. Plaintiff's Reply Memo, Ex. 7 at 8-9. 6 In September 2001, at her own expense, Plaintiff had
engaged Diana Ellaborn, a private licensed clinical social worker who specialized in gender disorders. Letter to K. Dennehy, Complaint Ex. 6 (March 29, 2004). Ms. Ellaborn diagnosed
4

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 5 of 35
By April 2005, Plaintiff had not yet received the hormone treatment. After receiving numerous letters of inquiry from Plaintiff, MTC Health Administrator Maryanne Percuoco informed her that Dennehy, Martin, Murphy and Fairly had put the prescription on hold pending "security review." Id. at ¶ 39; Plaintiff's Reply Memo, Ex. 3.
On April 26, 2005, allegedly as a result of the delay in receiving hormone treatment, Plaintiff suffered an emotional breakdown; she was administered antidepressants and put under the care of a psychiatrist. Id. at ¶ 40. She repeatedly wrote to Murphy and Fairly, carbon copying Dennehy, requesting that the security review be expedited. Id. at ¶¶ 41, 42. Martin explained to Plaintiff that the prescription was still being reviewed to determine its "appropriateness and necessity" and any potential security issues. Id. at ¶ 44. After another breakdown on May 9, 2005, Plaintiff was placed on administrative watch. Id. at ¶ 42.
Plaintiff continued to write Defendants about her concerns regarding the delay in hormone therapy, and in June 2005, she threatened legal action. Id. at ¶¶ 45-46, 50-51. In July 2005, she filed this suit seeking declaratory and injunctive relief and damages for Defendants' alleged failure to provide her with adequate medical care.
Plaintiff has already brought two actions similar to this
Plaintiff with GID and recommended hormone therapy and surgical castration. Id.
5

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 6 of 35
one. In 1998, the Suffolk Superior Court held that Defendants
were not liable for refusing to treat her for GID. Battista v.
Commonwealth, No. 97-03487 (Suffolk Superior Court) (1998)
(Plaintiff's Reply Memo, Ex. 1). At that time, she had not yet
been professionally diagnosed with GID, and the court found that
she had refused to cooperate with prison medical staff's attempts
at psychological evaluation. Four years later, Judge Lasker
dismissed on res judicata grounds a nearly identical case brought
by Plaintiff in federal court. Battista v. Murphy, No. 02-CV-
10137-MEL (Nov. 4, 2002).7
7 It bears noting that the Plaintiff has been a particularly active litigant in this court. In addition to the instant action and that referenced above before Judge Lasker, the Plaintiff has engaged in the following litigation in this court: Battista v. Murphy, 05-12383-DPW (filed Nov. 21, 2005) (a §1983 action alleging that defendants unconstitutionally prohibited plaintiff from communicating with other inmates); Battista v. DeCataldo et. al., 05-10743-RWZ (July 8, 2005) (dismissing a §1983 action in which Plaintiff challenged the constitutionality of her designation as a sexually dangerous person); Battista v. MacEachern, et. al., 04-10779-DPW (Nov. 12, 2004) (denying motion to proceed in forma pauperis on action challenging the alleged censorship of a magazine for nudity) aff'd No. 04-1676, 04-1708 (1st Cir. Oct. 13, 2004); Battista v. Percuoco, et. al., 0410890-MEL (Nov. 3, 2004) (denying motion to proceed in forma pauperis on §1983 action challenging the alleged censorship of a magazine for nudity) aff'd No. 04-1740 (1st Cir. Oct. 13, 2004); Cote et. al. v. Murphy, et. al., 03-10716-DPW (Sept. 27, 2004) (dismissing action challenging the constitutionality of "doublebunking" at the Massachusetts Treatment Center, and consequently, denying as moot Plaintiff's motion to intervene) aff'd, No. 042538 (1st Cir. Oct. 21, 2005); Battista v. Murphy, et. al., 0410226-MEL (Aug. 24, 2004) (denying motion to proceed in forma pauperis on equal protection challenge to Massachusetts Treatment Center's policies allowing inmates to retain personal possessions) aff'd No. 04-1783, 04-1979 (1st Cir. Oct. 13, 2004); Battista v. Murphy et. al., 03-12643-MEL (Aug. 24, 2004) (denying motion to proceed in forma pauperis on §1983 action alleging that failure to provide plaintiff with surgical castration violated
6

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 7 of 35
II. DISCUSSION
In deciding whether to issue interlocutory injunctive
relief, a district court must weigh four factors:
(1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.
Wine and Spirits Retailers, Inc., v. Rhode Island, 418 F.3d 36,
46 (1st Cir. 2005). "The sine qua non of this four-part inquiry
is likelihood of success on the merits: if the moving party
cannot demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity." Id.
(quoting New Comm Wireless Servs., Inc., v. SprintCom, Inc., 287
her due process rights) aff'd No. 04-1782, 04-1978 (1st Cir. Oct. 13, 2004); Battista v. Massachusetts, 04-10378-RGS (May 10, 2004) (dismissing complaint challenging the retroactive application of Massachusetts' civil commitment statute for sexually dangerous persons); Battista v. Forensic Health Services, 03-11161-NG (Jan. 12, 2004) (denying for failure to exhaust state remedies a petition for writ of habeas corpus based on allegations that defendant's policy for evaluating sexual dangerousness is unconstitutional); Battista v. Conte, et. al., 02-40181-NMG (July 24, 2003) (dismissing a §1983 suit alleging that defendants unconstitutionally impaired plaintiff's plea agreement and intentionally caused emotional distress); Battista v. Murphy, et. al., 02-12384-WGY (Dec. 31, 2002)(denying for failure to exhaust state remedies a petition for writ of habeas corpus challenging plaintiff's adjudication as a sexually dangerous person); Battista v. Murphy, et. al., 98-12310-NG (Dec. 27, 1999) (denying petition for writ of habeas corpus on the grounds that Plaintiff's claims of ineffective assistance of counsel were wholly unsupported); Battista et. al. v. DuBois, et. al., 9412043-DPW (Apr. 29, 1996) (granting summary judgment in favor of defendants on §1983 action alleging deprivation of personal hygiene supplies in violation of the Eighth Amendment and on challenge to state's policy of determining inmate indigency).
7

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 8 of 35
F.3d 1, 9 (1st Cir. 2002)). Accordingly, I begin with a discussion of the likelihood of Plaintiff's success on the merits. A. Success on the merits 1. UMass Correctional Health Program
Defendant UMass Correctional Health Program ("UMCHP") has moved to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that (1) as a state agency, any claims for injunctive or monetary relief against it in federal court are barred by the Eleventh Amendment to the United States Constitution, and (2) the complaint fails to allege any action on the part of UMCHP that can be enjoined.
A court may not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 50 (1st Cir. 2005). Assuming, as I must, that all well-pled allegations in the complaint are true and indulging all reasonable inferences in Plaintiff's favor, id., I nevertheless find that her claims against UMCHP cannot stand.
In the absence of consent, the Eleventh Amendment bars suits brought by a citizen against her own state or state agency. Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 100 (1984). Whether a state university is a state agency for
8

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 9 of 35
purposes of sovereign immunity is a "vexing" question, whose resolution generally involves consideration of a number of factors, including the university's mission, governance, and financial relationship to the state. Neo Gen Screening, Inc., v. New England Newborn Screening Program, 187 F.3d 24, 27 (1st Cir. 1999).
Several courts have granted the University of Massachusetts sovereign immunity. See, e.g., id. (upholding Judge O'Toole's holding that U Mass and its newborn screening program were state agencies); Daniel v. American Board of Emergency Medicine, 988 F. Supp. 127, 178-81 (W.D.N.Y. 1997) (finding the U Mass Medical Center to be a state agency). These decision were factdependent, turning on the nature of the university department in question. Here, UMCHP has presented no evidence as to its relationship to U Mass or to the state, beyond the fact that its name contains the words "University of Massachusetts". Consequently, I do not rest dismissal of the case against UMCHP on sovereign immunity grounds.
However, Plaintiff has failed to allege facts that support a claim against UMCHP. In her complaint, the reference to UMCHP alleges that Martin informed Battista that UMCHP was reviewing her prescription for hormones to determine its "appropriateness and necessity." Complaint at ¶ 44. Plaintiff also wrote a letter to Arthur Brewer, MD, the medical director of UMCHP, explaining her concerns about her GID treatment. Complaint at ¶¶
9

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 10 of 35
45-46; Ex. 17. Plaintiff's letter and her complaint, do not explain what, if any, role that UMCHP or any employee of UMCHP had in the alleged violation of her civil rights. From Battista's letter, it appears that UMCHP professionals were reviewing her case, but the authority to provide the treatment Battista seeks resides with the Department of Corrections. Complaint Ex. 17. Thus, because the complaint fails to allege facts sufficient to support a claim against UMCHP, I will grant UMCHP's motion to dismiss. The remainder of this Memorandum applies only to the remaining defendants. 2. Res Judicata
Pointing to the two previous lawsuits that Plaintiff brought regarding the sufficiency of her treatment for GID, Defendants contend that the doctrine of res judicata, or claim preclusion, bars the current action.
Res judicata prevents parties from "relitigating issues which were raised or could have been raised in a previous action, once a court has entered a final judgment on the merits in the previous action." FDIC v. Shearson-American Express, Inc., 996 F.2d 493, 497 (1st Cir. 1993). In order to trigger res judicata, three requirements must be met: (1) a final judgment on the merits in an earlier action; (2) an identity of parties or privies in the two suits; and (3) an identity of the cause of action in both the earlier and later suits. Id.
10

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 11 of 35
Plaintiff concedes that the judgment of the state court in Battista v. Commonwealth, No. 97-03487-A (Suffolk Superior Court) (1998), and Judge Lasker's decision in Battista v. Murphy, No. 02-CV-10137-MEL (Nov. 4, 2002), constitute final judgments on the merits for purposes of claim preclusion. The dispute centers around elements (2) and (3).
With respect to the second element, the basic premise is that parties to a prior action are bound by the judgment and nonparties are not bound. A. Wright & A. Miller, 18A Fed. Prac. & Proc. Juris. 2d §4449. A present party may invoke claim preclusion if she was also a named party in the prior action, so long as the party was acting in the same legal capacity in each suit. Id. The more difficult situation arises when a non-party to the first action seeks to use claim preclusion. Under federal law, "nonmutual claim preclusion may be invoked by defendants who were not parties to the original action, if the new defendants have a close and significant relationship with the original defendants." Hermes Automation Technology, Inc. v. Hyundai Electronics Industries Co., 915 F.2d 739, 751 (1st Cir. 1990)(internal quotations omitted). Massachusetts law is narrower in that it allows the new defendant to invoke claim preclusion "only if that person's interest was represented by a party to the prior action."8 Id.
8 The governing claim preclusion law depends on the court in which the final judgment on the merits was rendered. Hermes
11

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 12 of 35
Only two of the named defendants in the present suit were defendants in earlier suits: Kathleen Dennehy was named in the state court action, and Robert Murphy was named in the federal court action. Although the parties have not directly addressed this point, it appears that Dennehy and Murphy were acting in the same legal capacities in the prior suits as they are in the current one. As for the remaining defendants, the only evidence of privity is an oblique suggestion in Defendants' brief that they, and the prior defendants, are all Department of Corrections officials. Without more, this is insufficient to allow Defendants to invoke claim preclusion under either the federal or Massachusetts standard.
Nevertheless, even if privity of identity were established here, I find the third element of res judicata -- identity of cause of action -- is not satisfied. Consistent with the "broad purpose of res judicata to eliminate needless repetitive litigation," Kilgoar v. Colbert County Bd. of Educ., 578 F.2d 1033, 1035 (5th Cir. 1978), a second suit will be barred if its claims and those asserted in the earlier action "derive from a common nucleus of operative facts." Breneman v. Federal Aviation Administration, 381 F.3d 33, 38 (1st Cir. 2004). However,
Automation Technology, Inc. v. Hyundai Electronics Industries Co., 915 F.2d 739, 750 (1st Cir. 1990). Here, there were two previous final judgments, one from a Massachusetts court and one from a federal court. Consequently, the law of either jurisdiction could apply.
12

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 13 of 35
"[s]ubsequent conduct, [that,] even if it is of the same nature
as the conduct complained of in a prior lawsuit, may give rise to
an entirely separate cause of action." Gonzalez-Pina v.
Rodriguez, 407 F.3d 425, 430 (1st Cir. 2005) (quoting Kilgoar,
578 F.2d at 1035).
It is true that in this suit and the previous two, Plaintiff
alleged that he received inadequate treatment for GID. However,
the facts that gave rise to the current suit differ significantly from the first two.9 The first suit centered around the
defendants' failure to provide Battista with a therapist who
specialized in gender identity disorders. In holding that no
constitutional violation had occurred, Justice Burnes of the
Superior Court relied in part on the fact that Plaintiff's GID
was self-diagnosed. Battista, No. 97-3487-A at 11. Central to
Justice Burnes' holding was the fact that Battista herself
refused to cooperate with prison officials' attempts at
psychological evaluation.
9 I note that the claims in this suit are not identical to those raised in the first two. Battista's state court suit was a §1983 action alleging violation of the First, Eighth, and Fourteenth Amendments, 42 U.S.C. §1988, the Massachusetts Civil Rights Act, and other state laws. Her first federal suit only claimed violations of the First, Eighth, and Fourteenth Amendments under §1983. The current action contains a §1983 claim based on the Fourteenth Amendment, a claim alleging violation of Mass. Gen. L. c. 123A, §2, and a claim of Intentional Infliction of Emotional Distress. Nevertheless, res judicata could still apply in the form of claim preclusion, if the new claims arose from the same transaction or occurrence, or in the form of issue preclusion, if the same issues were previously litigated.
13

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In contrast, by the time the current suit was filed, Plaintiff had been professionally diagnosed with GID and had received counseling by a gender specialist. Her suit is now driven by a different set of facts: she was prescribed hormone therapy by a licensed professional, the prescription was approved by an MTC physician, and Defendants withheld that treatment. Thus, the issue for resolution here is not whether failing to provide Plaintiff with a specialized psychotherapist violates the constitution, but whether the withholding of professionally prescribed hormone therapy is a constitutional violation.
The previous federal court action presents a closer case regarding res judicata. By November 2002, when Judge Lasker handed down his decision, a professional had diagnosed Plaintiff with GID, and had recommended hormone therapy and surgical sex reassignment as possible treatments.10 In that previous suit, Plaintiff sought, as she does here, an injunction requiring prison officials to provide her with that treatment. Again, what distinguishes this case is that Battista had been prescribed medication to treat her condition, and that medication was withheld.
In sum, res judicata does not preclude this suit. Although there is some identity of parties and the legal principles are
10 A private gender specialist, Diane Ellaborn, diagnosed Battista with GID in October 2001. Dr. Katrin Rouse Weir's report, dated April 1, 2002, acknowledged Ms. Ellaborn's findings.
14

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 15 of 35
similar, the cause of action arises from new conduct that occurred after the previous judgments were rendered. 3. State law and DOC policies
Count I alleges that by withholding Plaintiff's prescribed treatment, Defendants violated Mass. Gen. L. ch. 123A, §2 and Department of Correction ("DOC") policies 103 DOC 630 and 650. These claims have no likelihood of success because neither federal nor state law offer grounds for relief.
To state a claim under § 1983, a plaintiff must allege that the defendant, acting under color of state law, deprived her of a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). Since Plaintiff's claims in Count I are based solely on state law, §1983 does not apply. See Martinez v. Colon, 54 F.3d 980, 989 (1st Cir. 1995) ("It is established beyond peradventure that a state actor's failure to observe a duty imposed by state law, standing alone, is not a sufficient foundation on which to erect a section 1983 claim.").
State law, however, is no more helpful to the Plaintiff. As Defendants correctly point out, neither Mass. Gen. L. ch. 123A nor the DOC policies at issue confer a private right of action. Massachusetts courts are "reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference." Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544 (1998). There is no suggestion in the enabling statute, Mass. Gen. L. ch. 124, §1,
15

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that the legislature intended to allow private actions. Without an enabling statute to support it, a private cause
of action cannot be inferred solely from an agency regulation. Id. at 546; see Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994) ("It is implausible to imagine that the Legislature, in granting the department authority to promulgate regulations, was empowering the department to create possible civil liability against the officials.") (internal citations omitted). Thus, Plaintiff's claims based upon Mass. Gen. L. ch. 123A, §2 and policies 103 HOC 610 and 650 cannot stand.
4. Equal Protection Plaintiff alleges that in withholding her hormone therapy,
but providing it to other inmates who suffer from GID, Defendants denied her constitutional right to equal protection.
To establish an equal protection violation, a plaintiff must show that (1) she was selectively treated, compared with others similarly situated; and (2) "that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995). "The underlying equal protection inquiry, ... is whether different treatment of two separately classified groups is at least
16

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 17 of 35
marginally reasonable." Walker v. Exeter Region Cooperative
School Dist. , 284 F.3d 42, 44 (1st Cir. 2002) (emphasis in
original).
Plaintiff has failed to meet these requirements. In support
of her claim of selective treatment, she asserts that
transgendered inmates housed with the general population of an
all-male state prison have been allowed hormone therapy, as well
as the right to retain, at their own expense, female clothing and makeup, apparently without any security problems.11 Complaint at
¶ 65. At most, these facts show that prison officials, and
possibly medical staff, made different decisions with respect to
Plaintiff than they did for other transgendered inmates. These
facts alone do not establish that Plaintiff and the inmates were
similarly situated or that Defendants had no legitimate
justification for treating Plaintiff as they did.
Defendants assert that Plaintiff has not received hormone
11 Although not mentioned in the body of the complaint, Plaintiff appears to be referring to two transgendered prisoners, Kenny Hunt, who is housed at MCI-Shirley Medium, and Michelle Kosilek, housed at MCI-Norfolk. Letter to K. Dennehy, Complaint Ex. 6 at 2 (March 29, 2004). While awaiting consultation with an endocrinologist, Plaintiff learned from Hunt that Hunt and Kosilek were receiving hormone therapy for their gender disorders and were allowed to keep makeup. Id. Neither Hunt nor Kosilek were receiving this treatment prior to their incarceration. Id.
Kosilek has filed an action against the Massachusetts Department of Correction alleging that the defendants unconstitutionally denied her medical treatment for GID. Kosilek v. Dept. of Corrections, Civil Action No. 00-12455-MLW (filed Nov. 21, 2000). The case is set for trial before Chief Judge Wolf on April 6, 2006.
17

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therapy because the Fenway Clinic's November 16, 2004, evaluation of Battista was "vague and incomplete." Weiner Affidavit at ¶ 6. Defendants claim that they are awaiting further review of the Fenway Report before they implement an irreversible course of treatment. Id. at ¶ 7. Evaluations by a number of other medical professionals dating as far back as 1995, indicate that Plaintiff's psychological issues are serious and raise questions about the severity of her GID and the proper course of treatment. Id. at ¶¶ 7, 10, 11. This evidence suggests that Defendants' decision to await further review of Plaintiff's case easily clears the hurdle of being "marginally reasonable."
Thus, Plaintiff has failed to show that she is likely to succeed on her equal protection claim. 5. Due Process
In Counts I and IV, Plaintiff claims that she has been denied her substantive due process right to medical care.
As an involuntarily committed person, Plaintiff has a constitutional right to minimally adequate medical care. Youngberg v. Romeo, 457 U.S. 307, 319 (1982); Cameron v. Tomes, 783 F. Supp. 1511, 1515 (D. Mass. 1992) (Keeton, J.), modified by Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993). Although this right is grounded in the Fourteenth Amendment's Due Process clause, courts have looked to Eighth Amendment jurisprudence for guidance. See Cameron, 783 F. Supp. at 1515; Garcia v. City of Boston, 115 F. Supp.2d 74, 82 (D. Mass. 2000) (Lasker, J.). The
18

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Eighth Amendment represents a floor below which the level of medical care afforded to such individuals cannot constitutionally fall. See Youngberg, 457 U.S. at 322 ("Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.").
The Eighth Amendment imposes a duty to attend to the "serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "Deliberate indifference" to those needs on the part of government officials violates the Constitution. Id. In the First Circuit's words, "[d]eliberate indifference is conduct that offends evolving standards of decency in a civilized society." DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). It is more than mere negligence; it requires that officials had a "culpable state of mind and intended to wantonly inflict pain." Id. Such indifference may be manifested by prison doctors in response to the prisoner's needs or by [other prison officials] in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-105.
This does not mean that prisoners, or the civilly committed, have a constitutional right to ideal medical treatment or to all the medical treatment of their choice. See Doe v. Gaughan, 808 F.2d 871, 886 (1986). Rather, a state must provide "adequate services: services at a level reasonably commensurate with modern
19

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medical science and of a quality acceptable within prudent professional standards." U.S. v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987).
It is sufficient, for constitutional purposes, for professional judgment to have been exercised. Youngberg, 457 U.S. at 321. Once that judgment has been exercised, "[i]t is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." Id. at 321-22. Decisions made by professionals enjoy a presumption of validity; "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323.
Finally, in determining whether the quality of medical care in an institutional setting satisfies Due Process, a court must weigh the civilly committed individual's liberty interest against the State's asserted reasons for restraining that liberty. Youngberg, 457 U.S. at 320. In undertaking this balancing, the court must consider the "practical constraints facing prison officials," such as security concerns. DesRosiers, 949 F.2d at 19.
With this legal framework in mind, I consider the facts of this particular case in assessing the propriety of Defendants' withholding of Plaintiff's prescription for hormones.
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Plaintiff contends that Defendants have intentionally interfered with her medical treatment after it had been prescribed -- conduct singled out by the Supreme Court as an example of deliberate indifference. See Estelle, 429 U.S. at 105. Her argument is as follows. Defendant arranged for Plaintiff to be seen by gender specialists at Fenway Community Health. Those specialists developed a treatment plan that included hormone therapy accompanied by psychotherapy. An inhouse physician approved the prescription for hormones, and although Defendants provided the psychotherapy and a consultation with an endocrinologist, they arbitrarily refused to follow through with the hormone treatment.
Defendants respond that medical professionals disagreed over the proper course of Plaintiff's treatment. They point to a number of reports by medical professionals discussing Plaintiff's gender disorder. These reports stated that Plaintiff was conflicted about her desire to be a woman and her gender issues were complicated by a traumatic childhood and severe psychological disturbances.12 These reports recommended
12 For example, in October 2001, Ronald Ebert, PhD., wrote: [Plaintiff's] wish to become a woman through surgery appears to be an attempt upon his part to regain the mother who rejected him and was killed for her rejection. It may also be an attempt to reject his father and his father's anger towards women, or it might serve to psychologically redeem his father by bringing mother back to life. In any case this is an incomplete psychological attempt to resolve his terrible childhood in a dramatic and permanent fashion. It
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psychotherapy and those that did not rule out physical sex change as a form of treatment, recommended extreme caution should that option be pursued.13 In contrast, the Fenway Report diagnosed Plaintiff with GID and recommended hormone therapy. Faced with these competing recommendations, Defendants claim that they decided to withhold Plaintiffs hormone treatment until they could review her case further.
Although it is somewhat curious that Defendants would withhold treatment approved by an in-house physician, the range of psychological evaluations and treatment recommendations evidence Defendants' genuine attempts to diagnose and treat Plaintiff's numerous disorders. At this stage, they undermine Plaintiff's efforts to show a likelihood of success on the merits
is to be hoped that any ethical professional he sees to support his wish to change his sex will agree that many years of further treatment and therapy are required before such a decision can be made. Weiner Affidavit, Ex. 1 at 9. 13 Dr. Victoria Russell, a psychiatrist, wrote a memo to Kathleen Dennehy dated March 17, 1997, in which she said the following regarding Plaintiff's request for a sex change: Taken in the context of his past experience and behavior, this Inmate's name change and requests for a sex change are bizarre at best, and psychotic at worst... No reasonably experienced therapist would consider recommending an individual with this history for a sex change operation without extensive testing and therapy. The Inmate has had neither. On my opinion, this Inmate would never be a reasonable candidate for sex-change surgery. Weiner Affidavit, Ex. 4 at 2.
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of her substantive due process claim. The record contains nine comprehensive psychological
evaluations of Plaintiff by medical or social work professionals dating back to 1997.14 These reports detail Plaintiff's tragic childhood, brutal crimes, psychoses, and cooperation, or lack thereof, in psychotherapy. They each recognize Plaintiff's gender issues, but rely primarily on psychotherapy for treatment.
Only the Ellaborn Report and the Fenway Report explicitly recommend hormone therapy. The Ellaborn Report, requested by Plaintiff's former attorney and privately funded, is the only one that strongly recommends hormones and surgery and dismisses any link between Plaintiff's GID, history of sexual offenses, and personality disorders. The Fenway Report is more cautious, acknowledging that Plaintiff's incarceration might present complications with respect to her personal safety and "transition status." Complaint, Ex. 10 at 7. Given the strong reservations the great majority of health professionals expressed towards hormone treatment and surgical options, and the qualification in
14 These reports are, beginning with the most recent: Brent Thibout, MA, LMHC, Plaintiff's Reply, Ex. 7 (March 14, 2005); Kevin Kapila, MD, and Randi Kaufman, PsyD ("Fenway Report"), Complaint, Ex. 10 (Aug. 10 2004); Frank DiCataldo, Ph.D., Complaint, Ex. 7 (Apr. 24, 2004); Katrin Rouse Weir, Ed. D., Complaint, Ex. 3 (Apr. 1, 2002); Ronald S. Ebert, Ph.D., Weiner Affidavit, Ex. 1 (Oct. 19, 2001); Diane Ellaborn, LICSW ("Ellaborn Report"), Plaintiff's Memo to Exclude Osborne Report, Attachment B (October 17, 2001); David Campopiano, MA and Robert Prentky, Ph.D., Weiner Affidavit, Ex. 2 (Nov. 18, 1998); J. Tyler Carpenter, PhD, Weiner Affidavit, Ex. 3 (Oct. 4, 1997); and Victoria Russell, MD, Weiner Affidavit at Ex. 4 (Mar. 17, 1997).
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the Fenway Report, Defendant's hesitancy in providing Plaintiff
with hormone therapy cannot on this record be termed
unreasonable.15
15 Defendants engaged Cynthia S. Osborne, MSW, to conduct a review of the Fenway Report ("Osborne Report"). See Second Affidavit Weiner, Ex. 1. Osborne offered a stinging critique of the Fenway Report's analysis and treatment recommendations. Plaintiff has moved to exclude this report, alleging that Osborne is not qualified as an expert under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Daubert requires that an expert's testimony "rests on a reliable foundation and is relevant to the task at hand." Id. at 597. Ms. Osborne is an expert in gender identity disorders, a licensed clinical social worker, holds a masters degree in social work, and is a Forensic Consultant and Assistant Professor in the Department of Psychiatry and Behavioral Sciences at Johns Hopkins University. Second Affidavit of Weiner at ¶ 8, Ex. 1 at 12. Her report comprehensively reviews Plaintiff's previous psychological evaluations dating back to 1979 and provides a detailed analysis of Plaintiff's previous diagnoses and treatment recommendations, incorporating the most recent relevant studies. Ms. Osborne discusses the Harry Benjamin Standards of Care and their application to Plaintiff, specifically addressing Plaintiff's status as an incarcerated individual.
The Osborne Report clearly satisfies Daubert's requirements of reliability and relevancy, and consequently, I deny Plaintiff's motion to exclude it. However, because Ms. Osborne never personally met or evaluated Plaintiff, I do not give the Osborne Report as much weight as the other reports in deciding whether Defendants' treatment of Plaintiff meets constitutional standards.
In a related motion, Defendants have requested that the case be dismissed as a sanction against Plaintiff for attempting to intimidate Ms. Osborne. Plaintiff filed a cross-motion for sanctions alleging abusive motion practice.
Plaintiff sent two letters to Ms. Osborne, dated August 17, 2005, and October 21, 2005. Plaintiff's Cross-Motion, Attachment B; Defendants' Motion for Sanction, Ex. 1. The October 21 letter states
[I]f left with no alternative, I will without question supplement my pleadings to add a claim against you for violations of my due process rights. Additionally, as mentioned from my independent gender specialist, Ms. Diane Ellaborn, LICSW, who is an appointed member to the Harry Benjamin International Gender Dysphoria Association's Ethics
24

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Moreover, there is no evidence that Defendants have
neglected Plaintiff's medical needs, let alone exhibited the
"wanton disregard" required to establish a constitutional
violation. See DesRosiers, 949 F.2d at 19. To the contrary,
Defendants have conducted a number of professional psychological
evaluations of Plaintiff that addressed her gender issues,
including at least one by gender specialists. Defendants
arranged for her to see an endocrinologist for a consultation on
hormone therapy, and provided her with regular sessions with a
counselor trained in gender issues.16 See Complaint, Ex. 17.
Committee, your evaluative process will also be the subject of review. Defendants' Motion for Sanction, Ex. 1. This passage suggests threats of legal action and ethics committee reporting designed to intimidate the witness. Although improper, the threats do not warrant a sanction of dismissal, given that the Plaintiff is pro se and this is the only instance of improper behavior brought to my attention. Plaintiff, however, should take note that her conduct was inappropriate and sanctions may be imposed for similar conduct in the future. At this point, however, the cross-motions for sanctions will be denied.
16 Plaintiff has also received treatment for her other psychological disorders. She has participated in, among other things, a Relapse Prevention program, group therapy, individual therapy, and a class on victim empathy. Plaintiff's Reply, Ex 7 at 5-8. She has failed to take advantage of other treatment recommendations, such as an anger and stress management class, a social skills class, and community meetings. Id.
Plaintiff has submitted an affidavit that claims she is receiving "no form of medical treatment to alleviate the symptoms I am experiencing over my gender issues." Battista Affidavit at ¶ 10. This directly contradicts the Second Affidavit of Lawrence Weiner, which states that Plaintiff has been engaged in regular psychotherapy sessions with a gender specialist since January 2005, has regular sessions with a general psychiatrist, and is being closely monitored by the mental health staff. Second
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Plaintiff relies on Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002) (Wolf, J.), to support her claim that withholding hormone therapy is a constitutional violation. Kosilek is a prisoner serving a life sentence at MCI-Norfolk, a mediumsecurity male prison. Id. at 158. She had a gender identity disorder, and believing that she was a female trapped in a male body, suffered constant mental anguish and attempted twice to commit suicide. Id. Michael Maloney, the Commissioner of the Department of Corrections, adopted a blanket policy prohibiting administration of female hormones to inmates who had not been taking them prior to incarceration. Id. at 159-160. Pursuant to this policy and against the recommendation of at least one medical professional, Maloney decided not to provide Kosilek with hormones or other treatment generally recommended for individuals with Kosilek's symptoms. Id. at 159.
Kosilek sued alleging that Maloney provided inadequate health care in violation the Eighth Amendment. Chief Judge Wolf held that because Maloney did not have the requisite state of mind, there was no constitutional violation. Id. at 190-91. However, he also found that Maloney had failed to provide Kosilek with adequate medical care. Maloney was not a medical professional, and did not consult with one when he denied Kosilek hormone therapy. Kosilek had a serious medical need and, more
Weiner Affidavit at ¶¶ 4, 7. 26

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concerned about financial costs and political fallout than Kosilek's well-being, Maloney "offered no real treatment at all." Id. at 161, 191.
After reviewing the nature of GID, the standard treatments, and holding a hearing during which an expert testified, Chief Judge Wolf concluded that "at a minimum, Kosilek should receive genuine psychotherapy from, or under the direction of, someone qualified by training and experience to address a severe gender identity disorder." Id. at 193. Chief Judge Wolf held further that hormones, and even sex reassignment surgery should be considered, if deemed medically necessary by a qualified professional. Id. at 195.
Plaintiff appears to read Kosilek as requiring prison officials to provide any treatment recommended by a medical professional and in accordance with prudent professional standards. I disagree. The central holding in Kosilek is that the medical care of prisoners must be based on an individual professional evaluation, not a blanket rule. Id. at 193. Kosilek's medical care failed to meet the constitutional standard because she was not provided with a specialist trained to treat her disorder, and more importantly, decisions about her health care were neither made by a medical professional nor based upon medical considerations. Id. at 193.17
17 Kosilek's case alleging inadequate treatment for GID is scheduled for trial before Chief Judge Wolf on April 6, 2006.
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In contrast, Plaintiff not only received numerous assessments by psychologists, psychiatrists, and social workers, she also received an evaluation by gender specialists. Those specialists recommended a course of treatment that included specialized psychotherapy and hormones. Several other medical professionals also recommended psychotherapy, and Plaintiff has been receiving that portion of the treatment. Defendants claim that they are considering hormone therapy, but are reviewing it for its appropriateness "in the context of prison environment," Complaint, Ex. 16. -- the very situation that the Fenway Report flagged as being a potential complication. Thus, Plaintiff has received the individualized, specialized medical care that Chief Judge Wolf found lacking in Kosilek's case.
Relying on Kosilek, Plaintiff argues that evaluations of medical professionals who are not gender specialists are irrelevant. Kosilek is not so rigid. Again, Kosilek focuses on the importance of individualized medical treatment by professionals exercising sound medical judgment. While specialist opinions are valuable, this does not mean that the opinions of other qualified medical professionals should be disregarded. The opinions of non-gender specialists are especially valuable in Plaintiff's case, where she suffers from a number of psychological disorders that potentially interact with
See Note 11, supra. 28

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her GID. Even if I disregard non-gender specialist evaluations, the
Fenway Report raised the specter of potential problems with incarcerated individuals and candidly admitted that the widely accepted standard of care for GID did not address individuals who wished to begin hormone treatment after incarceration.18 Complaint, Ex. 10 at 7. It is not unreasonable on its face for Defendants to take time reviewing this issue before providing Plaintiff with hormone treatment.
I recognize that Plaintiff has spent years waiting for the hormone therapy that she believes will relieve her suffering. She has endured mental breakdowns, bouts of depression, thoughts of suicide and even attempted to mutilate herself. However, Plaintiff has not demonstrated that the health care she has received falls short of constitutional standards. On this record at this time, I cannot adopt the medical recommendations of two gender specialists, while discounting the numerous opinions of other qualified medical professionals. See Youngberg, 457 U.S. at 321-22.
Due process analysis, moreover, requires weighing the interests of the state. The interest of the state in exercising caution before embarking on hormone therapy in this case is
18 The Fenway Report relied on the Harry Benjamin Standards of Care, an internationally accepted treatment protocol for gender identity disorders. Complaint, Ex. 10 at 6.
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significant. After reviewing the record, I cannot say that it is
clear that the treatment Plaintiff seeks will have its desired
effect.19 Defendants' concerns about initiating hormone therapy
while Plaintiff is incarcerated have a foundation in this record.
At this stage, Plaintiff has not shown herself likely to prevail
on her substantive due process claims.
6. Intentional Infliction of Emotional Distress
Plaintiff has alleged that Defendant's withholding of
hormone therapy constitutes intentional infliction of emotional
distress ("IIED").
In order to establish a claim for IIED under Massachusetts
law, a plaintiff must show
(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was "extreme and outrageous," was "beyond all possible bounds of decency" and was "utterly intolerable in a civilized community"; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was "severe" and of a nature "that no reasonable man could be expected to endure it."
Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976)(internal
citations omitted).
19 In this connection, Plaintiff has alleged in Count IV that denial of hormone therapy will violate her due process right to liberty by lengthening her incarceration. Complaint at ¶ 74. As noted above, the relationship between Plaintiff's gender identity disorder, her offending behavior, and her other psychological disorders is unclear. The impact of hormone therapy on Plaintiff's designation as a sexually dangerous person is also uncertain. Thus, it does not appear that Plaintiff is likely to succeed on this claim.
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"Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities" are insufficient to establish liability for IIED. Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987). Nor is it enough "that the defendant has acted with an intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Id. Rather, a defendant will be subject to liability only when his conduct "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Id.
I cannot say on this record that Defendants' actions constitute conduct "atrocious and utterly intolerable in a civilized society." Id. As discussed above, Defendants withheld the hormone therapy that had been prescribed to Plaintiff because they concluded that, given the Plaintiff's medical and criminal history and the differing views of several medical professionals as to the appropriateness of hormone therapy, further review was necessary before administering hormones to Plaintiff. See Weiner Affidavit at ¶¶ 6-9.
Although Plaintiff has suffered mental anguish as a result of the postponement of hormone therapy, Defendants' actions appear to have been based upon legitimate, if debatable grounds, and their decision does not appear unreasonable. It appears
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Defendants' conduct falls short of "extreme and outrageous," and Plaintiff's claim of IIED is unlikely to succeed on the merits. B. Harm to Plaintiff
The second element that a court considers in deciding whether to grant a temporary restraining order or a preliminary injunction is potential for irreparable harm to the movant if injunctive relief is denied. Wine and Spirits, 418 F.3d at 46.
Plaintiff claims that she is threatened with irreparable harm in two ways. First, she contends that the continued deprivation of her constitutional right to adequate medical care constitutes irreparable harm. Second, she argues that so long as one of the conditions that resulted in her confinement goes untreated, she will be unable to gain release from the institution and reintegrate into society.
Neither of these claims has vitality. Because I have found that Defendants' conduct has not been shown likely to amount to a constitutional violation, Plaintiff cannot be said to suffer irreparable harm on that ground. With respect to Plaintiff's second argument-- that Plaintiff's condition is now going untreated -- I note she is receiving specialized and general psychotherapy, the treatment recommended by each professional report in the record. Moreover, as discussed above, medical professionals debate the impact that hormone therapy will have on Plaintiff's criminal proclivity and psychological disorders, and
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consequently, her designation as a sexually dangerous person. Since her release depends on a finding that she is no longer sexually dangerous, see Mass. Gen. L. c. 123A §9, the effect that withholding hormone treatment has on Plaintiff's liberty is unclear. C. Harm to Defendant and Balance of Hardships
There is harm in requiring Defendants on an interlocutory basis to administer hormone therapy when qualified medical professionals have expressed divergent opinions as to its effectiveness. The admonition in Youngberg bears repeating: "It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." Youngberg, 457 U.S. at 321. Tying the hands of competent medical professionals and prison officials on this record risks harming not only the autonomy of the state and the quality of its health care, but the Plaintiff's own well-being.
In short, the balance of hardships between Plaintiff and Defendants appears to favor Defendants. D. Public interest
Finally, I must consider the effect on the public interest of requiring Defendants to administer hormone therapy to Plaintiff.
Plaintiff contends that it is in the public interest in having public officials obey the law and having civilly committed
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individuals receive treatment based upon professional medical judgment. I agree. As discussed above, Plaintiff has not shown that Defendants have not obeyed the law. It appears on this record that Plaintiff has received medical care based upon the judgment (albeit contested) of medical professionals, thus satisfying the public interest.
III. CONCLUSION Plaintiff has failed to show that she is likely to succeed on the merits of her claim; moreover, the balance of hardships and the potential effect on the public interest counsels against interlocutory injunctive relief. For the reasons set forth more fully above, I DENY Plaintiff's motion for a temporary restraining order and preliminary injunction (No. 7) and ALLOW the Motion to Dismiss the defendant University of Massachusetts Correctional Medical Health Program (No. 19). The decision to deny interlocutory relief is, of course, based upon a limited record in a setting where professional judgment will be determinative. I am of the view that, before the case moves on to final resolution, the pro se Plaintiff should have the benefit of counsel to permit professional prosecution of the case. I note further that in a parallel action, Battista v. Murphy, Civil Action No. 05-12383-DPW (filed Nov. 21, 2005), Plaintiff seeks to challenge regulations limiting correspondence
34

Case 1:05-cv-11456-DPW Document 42 Filed 03/22/06 Page 35 of 35 in Massachusetts correctional facilities. That case appears to have been prompted by limitations imposed on Plaintiff's ability to communicate with the plaintiff in Kosilek, a gender identity case pending before Chief Judge Wolf. See Note 11, supra.
Accordingly, I will ALLOW the Plaintiff's Motion to Appoint Counsel in the instant case, and consolidate this case with Civil Action No. 05-12383, for which the same counsel shall be appointed to conduct the litigation.
/s/ Douglas P. Woodlock ____________________________ DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
35

 
 Case 1:05-cv-11456-DPW Document 119 Filed 12/09/08 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY JO BATTISTA,

)

Plaintiff,

)

)

v.

)

)

KATHLEEN M. DENNEHY, ET AL., )

Defendants.

)

CIVIL ACTION NO. 05-11456-DPW

WOODLOCK, D.J.

MEMORANDUM December 9, 2008

I. INTRODUCTION

On October 15, 2008, I held a hearing in connection with

plaintiff Sandy Battista’s Motion for a Preliminary Injunction,

at which time for the reasons stated at the conclusion of the

hearing and reflected in the notes of the Court Reporter, I

DENIED the motion to the extent that it requested an Order

compelling the defendants (hereinafter “DOC”) to provide hormone

treatment immediately to Battista, but GRANTED the motion to

incorporate the DOC’s proposed GID Treatment Plan in a Court

Order. I directed the parties to confer and jointly submit a

proposed form of order for the DOC/’s GID Treatment Plan that

included specific treatment provisions which would be readily

enforced should there be non-compliance by the DOC.

Counsel for the parties conferred but were unable to reach

an agreement on a proposed plan. As a result, both Battista and

the DOC submitted separate proposals and supporting submissions.

II. DISCUSSION

I have reviewed each of the GID Treatment Plans proposed by

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the parties, and, while overlapping in substance in most areas, they differ in certain critical areas. In general, I find a number of Battista’s proposals to be overly broad in scope and not tailored to the limited injunction I informed counsel I would enter on the current record. On the other hand, I find that, although the DOC’s proposal strays slightly from the initial proposal they presented to me in connection with the preliminary injunction hearing, the DOC’s proposal provides an adequate basis for a manageable interlocutory treatment plan. In this Memorandum I outline my resolution of certain issues.
A. Reference to Battista Using Female Pronoun and Non-Harassment by Prison Staff
I decline to grant Battista’s request to order the DOC or its prison staff to refer to her as a woman, using the female pronoun, and to treat her as a woman without harassment. While I have made efforts in these proceedings to honor Battista’s request to refer to her using the female pronoun, and have instructed counsel to do the same for purposes of this litigation, I find that such an order directed to the DOC or its prison staff has not been shown to be necessary, particularly where the record on preliminary injunction essentially is devoid of any indication that prison staff have or will harass Battista once a GID Treatment Plan is put into effect. Indeed, Battista, in opposing the DOC’s claim that she would be at risk of assault if hormone or other feminization therapy were provided, has
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claimed that staff and inmates already view her as a woman. Moreover, prison staff already are required to behave toward all inmates in a professional, harassment-free manner. An Order compelling the prison staff to do what they are already obligated to do, without any credible evidence that the staff otherwise would not behave properly, is an overbroad use of the injunctive powers of the Court.
B. Therapist for Battista I decline to grant Battista’s request for an Order compelling Dr. Zakai himself to be her therapist, or designating some other therapist for Battista other than Dr. Ruth Khowais. As the DOC correctly point out, such an intrusion into the decision-making by MHM, as the contractual mental health services provider for the DOC inmates, is, on this record, beyond the scope of my remedial authority, just as it is contractually beyond the scope of the DOC’s authority to designate the clinician. Battista has no constitutional right to the therapist of her choice, and absent some evidence that MHM’s choice of Dr. Ruth Khowais as Battista’s therapist is unreasonable (which I cannot find on this record, even given her past experience with Battista), I will take no action to require another therapist to be designated in her stead. C. Frequency and Length of Therapy While one may question the efficacy of therapy on a bi-
3

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weekly or monthly basis as the DOC proposes (rather than on a weekly basis), I decline to grant Battista’s request that I order that therapy occur at least once per week. I will direct that the frequency of the therapy be provided on a not less than a biweekly basis, on the grounds that the initial GID Treatment Plan submitted by the DOC contemplated that therapy was to be made on at least a monthly basis but not more than a weekly basis. I note that Battista’s Reply brief departs from her original proposal and indicates that therapy on a biweekly basis is acceptable.
With respect to the amount of time which must be spent in each therapy session, I will not order the length of therapy to be at least 60 minutes, as Battista requests, but will require that each therapy session last a minimum of 45 minutes, as the DOC has proposed. I also note that Battista’s Reply brief departs from her original proposal in this regard, indicating that therapy sessions lasting 45-60 minutes is acceptable to her.
D. Documentation of Communications between DOC and Health Care Providers
I decline to Order, as Battista requests, that every communication between the DOC or any of its prison staff and MHM staff be documented in writing and provided to Battista’s counsel for review.
Even given my prior findings of deliberate indifference to Battista’s serious medical needs, which I dictated on the record
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in open court on October 15, 2008, I find this proposed requirement to be an overly broad and cumbersome remedy to prevent future attempts to influence MHM clinicians’s decisions with respect to Battista’s GID Treatment Plan. Such a requirement would undoubtedly and unnecessarily bog down proper prison administration and/or health care treatment. I will, however, prohibit the DOC and their agents, servants or employees, from taking any actions, directly or indirectly, to coerce or otherwise improperly influence recommendations or conclusions of medical or mental health care providers concerning any aspect of Battista’s GID Treatment. Further, in order to ensure that the medical and mental health care providers are aware of this restriction, the DOC shall notify the medical and mental health care providers of this Order, and shall advise these providers that any behavior which they deem to be in violation of this Order should be documented in writing and reported to this Court forthwith.
E. Confidentiality of Therapy Records I will DENY Battista’s request for an Order requiring that her therapy records be kept confidential and separate and apart from any information with respect to legal proceedings on her sexual dangerousness, determinations relevant to release from the Treatment Center, and any future disciplinary proceedings pending specific order of this court. I credit Battista’s argument that
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she will be less open to full participation in therapy, and thus the goals of therapy will be undermined if there is disclosure of her GID therapy records. Nevertheless, I am not prepared at this juncture to guarantee perpetual confidentiality of these materials. Battista will have to make her own choices regarding the extent of her participation in therapy, even though such choices raise the potential of use in or impact on these other areas.
F. The DOC’s Treatment Proposal 1. Feminization Matters
With respect to the DOC’s GID Treatment Plan proposal, I note that, in light of its current position that Battista would be permitted to purchase certain feminine products, the DOC appears to be receding from its initial position that any feminization efforts which would give Battista a female appearance would pose a security risk. The DOC has now agreed that Battista would be permitted to purchase women’s jeans, women’s dress pants, women’s dress shirts, women’s sneakers, women’s briefs, Mennen Dry Shower Lady Speed Stick Deodorant, emery boards, ponytail holders, Centrum women’s vitamins, and foam rollers (large). This list does not, as Battista requests, include a bra, nor does it include permitting hair removal.
I will adopt the DOC’s proposal with respect to the feminine items over which no objection is raised, but decline to compel
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Case 1:05-cv-11456-DPW Document 119 Filed 12/09/08 Page 7 of 8
the DOC to provide other feminine items, or to permit hair removal treatment immediately. These additional feminization efforts are matters to be addressed in the course of therapy, to determine whether these additional items are recommended by mental health professionals. I will direct that Dr. Zakai and Dr. Levine provide a report to the Court after conducting the supervisory review as set forth in the Preliminary Injunction Order, which addresses these additional feminization matters.
2. Supervision by Dr. Levine Of great significance is the DOC’s material alteration of the GID Treatment Plan proposed in opposition to Battista’s motion for preliminary injunction, as it relates to the supervisory review to be conducted by Dr. Levine. Initially, the DOC’s GID Treatment Plan called for monthly supervision by Dr. Zakai and Dr. Levine (albeit it indicated “if available”), rather than quarterly supervision as is now proposed. In lieu of Dr. Levine, the DOC now proposes that the supervision be done by Dr. Zakai and “other clinicians involved in the clinical management of GID.” In denying Battista’s motion for injunctive relief with respect to the immediate institution of hormone therapy, I relied in substantial part on the opinion of Dr. Levine with respect to GID treatment for Battista, and on the fact that Dr. Levine, an acknowledged expert in the treatment of GID, was retained by MHM
7

Case 1:05-cv-11456-DPW Document 119 Filed 12/09/08 Page 8 of 8
to act as a consultant in this matter and in formulating GID treatment for DOC inmates in general. I consider that without Dr. Levine’s active participation and hands-on input with respect to Battista’s continuing treatment and the possibility for modifications of her treatment plan during the course of therapy, the DOC may continue its deliberate indifference to Battista’s serious medical needs, and not provide the minimally necessary GID treatment that is constitutionally mandated. Thus, I will not adopt the DOC’s revision to their initial proposal that Dr. Levine provide supervision only on a quarterly basis. Rather, I will require that Dr. Levine provide monthly supervision and sign monthly reports with respect to Battista’s therapy and recommendations for modifications to her treatment plan. In Battista’s Reply, it appears the parties are now in agreement on this point.
A separate Preliminary Injunction Order will be issued in conjunction with this Memorandum.
/s/ Douglas P. Woodlock DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
8

 
 Case 1:05-cv-11456-DPW Document 120 Filed 12/09/08 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY JO BATTISTA,

)

Plaintiff,

)

)

v.

)

)

KATHLEEN M. DENNEHY, ET AL., )

Defendants.

)

CIVIL ACTION NO. 05-11456-DPW

WOODLOCK, D.J.

PRELIMINARY INJUNCTION ORDER December 9, 2008

In accordance with my findings with respect to the propriety

of preliminary injunctive relief, as dictated on the record in

the notes of the Court Reporter on October 15, 2008 and in

accordance with the Memorandum issued this date, it is hereby

ORDERED that:

1. The DOC, its agents, servants and/or employees, shall ensure that the GID Treatment Plan set forth herein for Battista is implemented by the DOC’s mental health services provider, MHM, and that parallel medical treatment will be provided by the DOC’s medical service provider. Battista’s mental health treatment pursuant to this plan must commence within 14 days of the date of this Order. Treatment may not be materially altered without prior permission of the Court, and any failure of the DOC to comply with the directives contained herein may result in contempt proceedings or other sanctions.

2. Pursuant to the GID Treatment Plan Supplement, Battista will receive psychotherapy at least once every other week, with sessions lasting at least forty-five minutes; therapy sessions shall be conducted in a private conference room or private office at the Massachusetts Treatment Center.

3. Therapy sessions must be conducted by Dr. Ruth Khowais, a MHM doctoral level credentialed clinical psychologist and the Mental Health Director for the Treatment Center. Should MHM seek to change the treatment plan by using a different therapist for Battista, the DOC shall notify this Court and Battista’s counsel of such change at least two weeks in advance.

Case 1:05-cv-11456-DPW Document 120 Filed 12/09/08 Page 2 of 4
4. During these therapy sessions, Dr. Khowais will provide psychotherapy focusing on the specific areas of exploration detailed in Dr. Levine’s June 18, 2008 report and the GID Treatment Plan Supplement dated July 30, 2008, e.g., Battista’s psychosexual development, masochism, interplay of GID with co-morbid mental disorders including pedophilia, and Battista’s understanding of her gender mosaic. In addition, Dr. Khowais will assess Battista’s appropriateness of initiation of hormone therapy including, but not limited to, the following clinical rationales:
A. Whether Battista has actively participated in discussing comprehensive mental health issues, including pedophilia, that Dr. Khowais deems relevant or appropriate in the context of therapy;
B. Whether Battista has actively participated in discussing appropriate expectations regarding
(i) the effects of any hormone therapy and any likely or potential changes in her personal interactions resulting from the hormone therapy; and
(ii) the possibility that hormone therapy may not be clinically indicated; and
C. Whether Battista has agreed to continue and actively participate in regular therapy sessions with Dr. Khowais or another therapist designated by MHM after the commencement of hormone therapy, should hormone therapy be clinically indicated and made available to Battista.
5. In addition to conducting biweekly therapy sessions with Battista, Dr. Khowais will meet in regular monthly supervision sessions with Dr. Zakai, Dr. Levine and other MHM clinicians with whom Dr. Zakai chooses to consult. Monthly supervision reports shall be signed by Dr. Zakai, Dr. Khowais, Dr. Levine, and any other MHM clinician consulted by Dr. Zakai. The monthly reports, beginning January 30, 2009, shall be provided to the Court under seal and to counsel for the DOC and counsel for Battista. The monthly supervision reports must provide an update on the progress of therapy, with specific reference to the criteria set forth in this Order. The reports must also include opinions as to other potential feminizing intervention that may be requested by Battista and discussed in therapy. The DOC, its agents, servants, and/or employees are prohibited
2

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from dictating, directly or indirectly, the manner, format, or substance in which the monthly report is prepared by the clinicians.
6. At the completion of six (6) months of therapy sessions, and no later than June 30, 2009, Dr. Zakai, as the Chief Psychologist for MHM, shall prepare a report with MHM’s recommendations for ongoing treatment for Battista’s GID. This report shall consider the appropriateness of hormone therapy for Battista, consistent with the criteria set forth herein, and without consideration of any purported security concerns of the DOC. Dr. Zakai shall provide a detailed explanation of Dr. Levine’s recommendation, and Dr. Khowais’s recommendation, as well as his own recommendation. In the event any of these clinicians do not recommend commencement of hormone therapy, the report shall discuss whether there are additional therapeutic goals they believe must be accomplished in treatment before hormone therapy may be deemed appropriate, and shall set forth a plan to allow Battista the opportunity to achieve appropriate goals in ongoing therapy. The report shall be submitted simultaneously to the Court under seal, and to counsel for the DOC and counsel for Battista.
7. The DOC, its agents, servants and/or employees are prohibited from taking any actions, directly or indirectly, to coerce, or otherwise improperly influence recommendations or conclusions concerning any aspect of Battista’s GID Treatment. The DOC is prohibited from interfering in any manner with any medical or mental health decisions made by the contractual medical or mental health care providers. The DOC shall notify the medical and mental health care providers of this Order forthwith by providing them with a copy of this Order, and shall advise these providers that any behavior which any provider deems to be in violation of this Order shall be documented in writing and reported to this Court forthwith.
8. Neither the DOC or any of its prison staff may obtain any medical or mental health information generated from the evaluation or treatment of Battista from its contractual health care providers without an order of this Court.
9. Battista shall be allowed to purchase the following items from the list of products available to female offenders in DOC custody, none of which present safety or security concerns within the Treatment Center: women’s jeans, women’s dress pants, women’s dress shirts, women’s sneakers,
3

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women’s briefs, Mennen Dry Shower Lady Speed Stick Deodorant, emery boards, ponytail holders, Centrum women’s vitamins, and foam rollers (large). The list of female products that must be made available for purchase by Battista does not include a bra. The purchase of a bra and for the implementation of hair removal are matters which should be addressed as part of the therapy and specific recommendations as to these two matters must be made by Dr. Khowais, Dr. Zakai and Dr. Levine in connection with the supervision reports to be submitted to the Court, consistent with the obligation that “[d]uring therapy, an ongoing assessment and evaluation will be done to determine appropriateness of further feminization.” The DOC shall ensure that Battista is provided with sufficient blank order forms for purchase of the approved clothing and canteen items identified above, as well as postings of new items, deleted items, and price changes.
10. Battista shall also be made part of any appropriate group therapy if such therapy becomes available.
11. Should any of the MHM clinicians recommend initiation of hormone therapy, an endocrine consult shall promptly be undertaken to ascertain safety and the best approach in consideration of Battista’s Adrenal Hyperplasia.
12. Should Dr. Khowais, Dr. Levine, or any MHM clinicians involved in the consultation, evaluation, and/or treatment of Battista recommend initiation of hormone therapy, and should such recommendation be adopted by Dr. Zakai as the authorized agent of MHM, the fact of the recommendation for hormone therapy shall be disclosed by Dr. Zakai to the DOC and to Battista’s counsel in writing, and the DOC shall promptly undertake a good-faith, comprehensive security review to ascertain any safety and security risks associated with providing Battista with hormone therapy.
13. The DOC shall provide copies of this Preliminary Injunction Order and the contemporaneous Memorandum to Dr. Zakai, Dr. Khowais, Dr. Levine, and to legal counsel or other authorized representative for the contractual health care service providers.

SO ORDERED.

/s/ Douglas P. Woodlock DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
4

 
 Case 1:05-cv-11456-DPW Document 244 Filed 05/23/11 Page 1 of 1
United States Court of Appeals
For the First Circuit

No. 10-1965

SANDY J. BATTISTA,

Plaintiff, Appellee,

v.

HAROLD W. CLARKE, Commissioner of the Massachusetts Department of Correction, and MICHAEL CORSINI, Superintendent of Massachusetts Treatment Center,

__________

Defendants, Appellants.

KATHLEEN M. DENNEHY; ROBERT MURPHY; STEVE FAIRLY; SUSAN J. MARTIN; GREGORY J. HUGHES; UMASS CORRECTIONAL HEALTH PROGRAM; TERRE MARSHALL,

Defendants.

JUDGMENT Entered: May 20, 2011
This cause came on to be heard on appeal from the United States District Court for the District of Massachusetts and was argued by counsel.
Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed.
By the Court:
/s/ Margaret Carter, Clerk

cc: Ms. Sheng, Mr. Man, Ms. McSherry, Ms. Smith-Lee, Ms. Kennedy, Mr. Minihan, Mr. McFarland, Mr. Hughes & Mr. O'Shea.

 
 Case 1:05-cv-11456-DPW Document 256 Filed 07/11/11 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY JO BATTISTA,

)

Plaintiff,

)

)

v.

)

)

LUIS S. SPENCER, COMMISSIONER )

OF THE MASSACHUSETTS

)

DEPARTMENT OF CORRECTIONS, )

and MICHAEL CORSINI,

)

SUPERINTENDENT OF THE

)

MASSACHUSETTS TREATMENT

)

CENTER in their official

)

capacities,

)

Defendants.

)

CIVIL ACTION NO. 05-11456-DPW

FINAL JUDGMENT AND ORDER July 11, 2011
Following a non-jury trial concerning preliminary injunctive
relief, the findings and conclusions regarding which were
affirmed by the Court of Appeals, and upon the determination of
the parties that the case was ripe for final judgment, after
hearings and consideration of the parties’ submissions, the court
substantially adopts the parties’ proposals for such a final
judgment. Accordingly, it is hereby ORDERED that:
1. This Final Judgment and Order shall supercede the Preliminary Injunction Order dated December 9, 2008 (Docket No. 120), the Amended Preliminary Injunction Order dated February 10, 2009 (Docket No. 128), and the Modified Preliminary Injunction Order dated August 23, 2010 (Docket No. 223), which shall no longer be in effect.
2. This Final Judgment and Order shall apply to the currently named Defendants in their official capacities as Commissioner of the Massachusetts Department of Correction (the “DOC”) and Superintendent of the Massachusetts Treatment Center (The “Treatment Center”), their successors, agents, servants, employees, and/or representatives (hereinafter collectively referred to as “the DOC”).

Case 1:05-cv-11456-DPW Document 256 Filed 07/11/11 Page 2 of 5
3. The DOC, its agents, servants and/or employees, shall ensure that the treatment provisions set forth herein for Plaintiff Sandy Jo Battista (hereinafter “Battista”) are implemented by the DOC’s medical and mental health services providers.
4. In accordance with the electronic interim order of June 29, 2011, the DOC shall ensure that its current medical services provider begin and continue to provide female hormone therapy to Battista consistent with previous recommendations of the DOC’s medical and mental health clinicians. The DOC shall ensure that continued hormone treatment is provided to Battista consistent with the recommendations of the DOC’s medical and mental health clinicians, unless otherwise ordered by this Court.
5. Upon the initiation of treatment with female hormones, Battista will continue to be housed in a single cell in the general population at the Treatment Center. While housed in the Treatment Center’s general population, Battista will have access to the same rights, privileges, treatments, programs, recreational activities, and common areas that are presently available to Battista and other residents housed in the Treatment Center’s general population. Similarly, Battista shall have the same responsibilities and be subject to the same disciplinary actions as all other residents in the Treatment Center. DOC shall provide notification to Battista’s counsel as soon as possible and in any event no later than two business days (defined as days when the Clerk’s Office of this Court in Boston is regularly open) after any change in Battista’s housing placement.
6. The DOC may implement additional security measures that the Treatment Center Superintendent deems necessary to provide for Battista’s personal safety within the general population. Such additional security measures may include (i) the placement of Battista on a management plan, and/or (ii) increased staff supervision during Battista’s movement outside her housing unit. If the Treatment Center Superintendent determines that these increased security measures are insufficient to protect Battista from a known risk of assault, Defendants may temporarily restrict Battista’s access to certain areas of the Treatment Center. Nothing in this paragraph shall limit the discretion of DOC with regard to Battista’s placement within the Treatment Center or prevent the DOC from implementing general
2

Case 1:05-cv-11456-DPW Document 256 Filed 07/11/11 Page 3 of 5
security measures concerning all residents of the Treatment Center. Such general security measures may include, but are not limited to, lockdowns and cell searches, consistent with the Superintendent’s statutory responsibilities pursuant to Massachusetts General Laws chapter 127, § 33.
7. The DOC, its agents, servants and/or employees are prohibited from taking any actions, directly or indirectly in retaliation against Battista for bringing this litigation. Defendants shall not house Battista on the Minimum Privileges Unit (“MPU”) except as pursuant to procedures set forth in 103 CMR 431.00, et seq.
8. If Defendants implement any additional security measures for Battista, Defendants shall, within five (5) business days of their implementation, notify Plaintiff’s counsel, of (i) the nature of the additional security measures, (ii) the anticipated duration that the additional security measures will remain in effect, and (iii) the specific reasons why the additional security measures are deemed necessary.
9. Nothing in this Final Judgment and Order shall be interpreted to prohibit the DOC from enforcing any rules, regulations, policies and/or disciplining Battista for any violations of same, pursuant to 103 CMR 431.00 et seq.
10. Battista shall continue to receive psychotherapy sessions as treatment for GID at the Treatment Center for the duration of her commitment. The particular therapist and the frequency and duration of the psychotherapy sessions shall be determined by the DOC’s mental health services provider. GID group therapy shall be made available to Battista if such group therapy becomes available at the Treatment Center and if deemed appropriate by the DOC’s mental health services provider.
11. The DOC, its agents, servants and/or employees are prohibited from taking any actions, directly or indirectly, to coerce, or otherwise improperly influence recommendations or conclusions concerning any aspect of Battista’s GID treatment. The DOC is prohibited from interfering in any manner with any medical or mental health decisions made by the contractual medical or mental health care providers. The DOC shall notify the medical and mental health care providers of this Order. Any behavior which any provider deems to be in violation of this Order
3

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shall be documented in writing and reported to providers’ counsel, Plaintiff’s counsel and Defendants’ counsel.
12. Defendants shall have access to Battista’s medical and mental health information for purposes of communicating with Treatment Center mental health staff in regular team discussions and for use in developing preventative security measures for the protection of Battista and other Treatment Center residents.
13. Battista shall be allowed to purchase any and all items listed in Addendum E to the DOC’s Policy for the Identification, Treatment and Correctional Management of Inmates Diagnosed with Gender Identity Disorder (GID), 103 DOC 652.00 et seq. (the “DOC’s GID Policy”). Pursuant to the DOC’s GID Policy, if Battista develops breasts, the DOC will provide Battista with access to bras. 103 DOC 652.03(D)(2)(b). In addition, the DOC shall ensure that Battista is provided with sufficient and up-to-date blank order forms for purchase of the approved clothing and canteen items identified above, upon request.
14. If the DOC’s medical and/or mental health clinicians recommend further GID treatment for Battista, including, but not limited to, (i) hair removal treatment, (ii) canteen items not currently listed in Addendum E of the DOC’s GID Policy, and (iii) sex reassignment surgery, the DOC shall immediately notify Plaintiff’s counsel of those recommendations. Such notice shall include (i) the clinicians’ specific recommendations, (ii) the DOC’s plan (if any) for implementing those recommendations, and (iii) the basis for any objection to implementing the clinicians’ recommendations.
15. The DOC shall provide copies of this Final Judgment and Order to the Psychiatric Medical Director and the GID Consultant of the DOC’s mental health services provider, the Program Medical Director of the DOC’s medical services provider, other legal counsel or other authorized representative for the health care service providers, and the DOC’s Assistant Deputy Commissioner for Clinical Services.
16. This Court shall retain jurisdiction over this action for the purpose of enabling any party to apply to the Court for: (i) such further orders or directions as may be necessary or appropriate for the interpretation or implementation of this Final Judgment and Order; (ii) the
4

Case 1:05-cv-11456-DPW Document 256 Filed 07/11/11 Page 5 of 5

modification of the provisions of this Final Judgment and Order; (iii) for Plaintiff and/or Defendants to apply to the Court for the enforcement of this Final Judgment and Order, including contempt proceedings and sanctions; and (iv) such other relief as this Court deems appropriate.

17. Michael Corsini is substituted for Robert Murphy as the successor Defendant Superintendent of the Treatment Center.

18. Luis Spencer is substituted for Harold Clarke as the successor Defendant Commissioner of the DOC.

19. All original Defendants to this action are dismissed except Michael Corsini and Luis Spencer in their official capacities.

20. The following claims are DISMISSED:

(a) All of Plaintiff’s claims against Defendants in their individual capacities;

(b) All of Plaintiff’s claims for monetary damages against Defendants;

(c) All of Plaintiff’s Equal Protection claims against Defendants; and

(d) All claims for equitable relief, except those based upon the Eighth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983.

21.

Plaintiff’s claims for equitable relief under the

Eighth and Fourteenth Amendments are GRANTED, pursuant

to 42 U.S.C. § 1983, as set forth in this Final

Judgment and Order.

22.

This Final Judgment and Order shall take effect

immediately upon its entry.

SO ORDERED.

/s/ Douglas P. Woodlock DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
5

 
 Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 1 of 17
United States Court of Appeals
For the First Circuit
No. 10-1965 SANDY J. BATTISTA,
Plaintiff, Appellee, v.
HAROLD W. CLARKE, Commissioner of the Massachusetts Department of Correction, and MICHAEL CORSINI,
Superintendent of Massachusetts Treatment Center, Defendants, Appellants. __________
KATHLEEN M. DENNEHY; ROBERT MURPHY; STEVE FAIRLY; SUSAN J. MARTIN; GREGORY J. HUGHES; UMASS CORRECTIONAL HEALTH PROGRAM;
TERRE MARSHALL, Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before Boudin, Circuit Judge, Souter,* Associate Justice, and Stahl, Circuit Judge.
Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief for appellants.
Neal E. Minahan, with whom Christopher D. Man and McDermott Will & Emery LLP were on brief for appellee.
*The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 2 of 17 May 20, 2011

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 3 of 17
BOUDIN, Circuit Judge. In 1983, in state court in Massachusetts, Sandy Battista (born "David Megarry") was convicted of the rape of a child, robbery, and kidnapping. After serving that sentence, Battista was involuntarily committed in 2003 in a civil proceeding, Mass. Gen. Laws ch. 123A, § 14 (2008), to the Massachusetts Treatment Center for Sexually Dangerous Persons ("Treatment Center"). Such persons are held civilly without limit in time until adjudged safe for release. Id. §§ 9, 14.
The Treatment Center, for which the Massachusetts Department of Correction ("the Department") is responsible, Mass. Gen. Laws ch. 123A, § 2, is an all-male facility housing three groups: criminals participating in treatment programs, civilly committed residents, and those awaiting adjudication as "sexually dangerous persons." Massachusetts law requires that civil detainees like Battista be separated from criminal ones. Durfee v. Maloney, Nos. CIV. A. 98-2523B, CIV. A. 98-3082B, 2001 WL 810385, at *15 (Mass. Super. Ct. July 16, 2001).
Battista is anatomically male but suffers from "gender identity disorder" ("GID"), a psychological condition involving a strong identification with the other gender. GID is a disorder recognized in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The diagnostic criteria include not only "cross-gender identification" but also "clinically significant distress or impairment in social,
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occupational, or other important areas of functioning." Id. at 537-38.
In 1996, Battista changed her name to Sandy and began to seek treatment from the Department, including administration of female hormones and access to female garb. Her early demands were met with skepticism and resistance.1 In 1997, a Department consultant diagnosed her GID, but the Department offered no further evaluation or treatment until 2004. Prior to this case, Battista filed two suits seeking GID treatment and accumulated expert opinions confirming the seriousness of her condition and recommending accommodations including hormone therapy.
Battista filed her complaint in the present suit in July 2005 and in October 2005 sought to castrate herself with a razor blade. The suit, against various officials of the Department, charged deliberate indifference to her medical needs in violation of the Eighth and Fourteenth Amendments and 42 U.S.C. § 1983 (2006), as well as state law, including Mass. Gen. Laws ch. 12, §§ 11H-11I. In particular, Battista sought an injunction requiring that hormone therapy and female garb and accessories be provided to her.
1In response to Battista's initial requests, a Department psychiatric consultant stated in 1997 that the name change and desired treatments were "bizarre at best, and psychotic at worst" and recommended various medical and psychological testing, as well as therapy. The consultant also considered Battista's requests to be "elective procedures" equivalent to "tummy tucks and liposuctions."
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In and around 2005 and 2006, the Department fenced with its own healthcare provider, the University of Massachusetts Correctional Health Program, which offered strong support for the GID diagnosis, asserted that harm could easily occur without adequate treatment, and recommended hormone therapy as medically necessary. The Department instead hired another gender specialist, who then agreed that hormone treatment might be appropriate along with other therapy.
Battista's first request to the district court for a preliminary injunction was denied in March 2006, with a finding that the defendants had not at this stage been shown to be deliberately indifferent to her medical needs. Battista v. Dennehy, No. 05-11456-DPW, 2006 WL 1581528, at *9-10, *12 (D. Mass. Mar. 22, 2006). After the further medical assessments continued to recommend hormone therapy, the Department stated that it would not implement treatments until security concerns were further evaluated. This proved to be a drawn-out process.
In August 2008, the first security review by the Department concluded that a feminine appearance would endanger Battista. The core security concern throughout has been that sexual contacts or assaults by other detainees would be made more likely by female clothing and accessories and the enhancement of breasts due to hormone therapy. The report, however, was fairly cursory, comprising only a few paragraphs, and in December 2008 the
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district court entered a preliminary injunction requiring psychotherapy, access to women's attire and accessories, monthly reports on Battista’s condition, and a recommendation on hormone therapy after a six-month review.
In the six-month report, the doctors again prescribed the hormones. A first dose was administered, but then the Department put another indefinite hold on treatment pending a second security review. The September 2009 review again found the safety risk too high. This new report was more substantial although it more or less duplicated an earlier report prepared for an inmate who also had requested and been denied hormone therapy. Its security evaluation is at the core of the Department's substantive objection to hormone therapy for Battista.
Although hormone therapy had been provided for GID to inmates of some male prisons, the September 2009 report included data gathered under the Prison Rape Elimination Act of 2003 ("PREA") § 4, 42 U.S.C. § 15603, to argue that the risk of sexual assault was higher at the Treatment Center as compared to other facilities of the Department, including prisons. The report noted that Treatment Center residents were sex offenders and that the Treatment Center had an open floor plan. It stressed Battista's past infractions and the inability to move her to another facility because of her civil commitment status.
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A bench trial took place in June and August 2010. In the
course of the trial, Battista offered an evaluation from
psychiatrist George Brown. He testified that Battista was eligible
and ready for hormonal treatment, that the past treatment for her
GID "falls below any reasonable standard of care," and that with a
high degree of medical certainty . . . when this patient loses hope again regarding access to appropriate care, she will engage in surgical self-treatment by autocastration or will hire someone to do this for her. This could lead to an inadvertent death due to exsanguination.
On August 3, 2010, the court stated that it would enter
a modified preliminary injunction order requiring hormone therapy
to begin shortly. On August 23, 2010, the district court delivered
a detailed oral decision, which recounted the history and made
numerous findings in support of its injunction, applying the usual
four-part test for preliminary relief, Iantosca v. Step Plan Svcs.,
Inc., 604 F.3d 24, 29 n.5 (1st Cir. 2010) (likelihood of success,
irreparable harm, balance of hardships on the opposing sides,
public interest).
In its decision, the district court unqualifiedly required hormone therapy.2 The injunction is styled as preliminary
2The modified preliminary injunction now on appeal was issued on August 23, 2010, and requires "[w]ithin seven (7) business days of the entry of this Order, the DOC shall provide hormone therapy to Battista in accordance with the recommendation of Dr. Levine, Dr. Zakai, and Ruth Khowais, Psy.D. on June 19, 2009, and the prescription by endocrinologist Dr. Mohammed Saad dated August 4, 2009 and August 14, 2009."
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because both sides sought a ruling on implementation issues-specifically, how restricted Battista may be in her confinement-which the district court now has under consideration; but hormone therapy has now been definitively decreed. That directive was stayed by the district court pending appeal, as defendants requested, solely because the district court feared harm to Battista if hormone therapy were begun and later stopped again.
The district court's ultimate finding of "deliberate indifference" rests on several different subordinate findings, which can be recast and summarized under two headings: first, that Battista has an established medical need for hormone therapy, may suffer severe harm without it, and (implicitly) that such therapy is feasible despite safety concerns; and second, that the defendants' reliance on their administrative discretion in invoking and dealing with security concerns has been undercut by a collection of pretexts, delays, and misrepresentations.
The focus of this appeal is narrow. The Department concedes that Battista suffers from GID and needs treatment and that hormone therapy has been recommended as medically necessary; but it says that security concerns reasonably underpin its refusal and contests the finding of deliberate indifference. Because the individual defendants are sued only in their official capacity for injunctive relief and no damages are sought, qualified immunity is
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not an issue nor need the separate roles of individual defendants be sorted out.3
Defendants suggest that review is de novo; the plaintiff, that it is essentially for abuse of discretion in the grant of preliminary relief. In truth, the standard of review varies depending on the precise underlying issue in the mosaic of arguments and counter-arguments. Legal issues are open to de novo review, factual findings are reviewed for clear error, and judgment calls by the district judge may get deference depending on the circumstances. Venegas-Hernández v. Asociación de Compositores y Editores de Música Latinoamericana (ACEMLA), 424 F.3d 50, 53 (1st Cir. 2005).
The substantive standard for liability is a more complicated story. In the district court, the parties and the judge focused on the Eighth Amendment test used to assess medical care, or the lack of it, for criminal prisoners, namely, whether the defendants were "deliberately indifferent" to the needs of their charge. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). This choice of tests was hardly surprising: although protection of civilly committed persons
3In the district court, Battista asserted but then abandoned earlier damage claims and focused her suit on forward-looking injunctive relief. Had this appeal involved individual liability for damages and qualified immunity, a different outcome could easily have been possible as to such claims.
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rests on due process concepts rather than the Eighth Amendment, deliberate indifference is the familiar test for medical care.
The Eighth Amendment standard is in part one of subjective intent. Farmer, 511 U.S. at 839-40. The phrasing itself implies at least a callous attitude, but subjective intent is often inferred from behavior and even in the Eighth Amendment context--contrary to the defendants' assertion--a deliberate intent to harm is not required. Id. at 835. Rather, it is enough for the prisoner to show a wanton disregard sufficiently evidenced "by denial, delay, or interference with prescribed health care." DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991).
Because Battista is civilly committed, a different, more plaintiff-friendly standard arguably applies here: whether the defendant failed to exercise a reasonable professional judgment. Youngberg v. Romeo, 457 U.S. 307, 321 (1982).4 Battista has repeatedly invoked a due process standard and claimed it to be more favorable but does not pinpoint the Youngberg formulation. However, fine-tuning is unnecessary. The two standards are not all
4The decisions are not uniform. Compare Ketchum v. Marshall, No. 90-F-1627, 963 F.2d 382, 1992 WL 111209, at *2 (10th Cir. 1992) (unpublished table decision) (using deliberate indifference test for medical care for the civilly committed without mentioning Youngberg), with Patten v. Nichols, 274 F.3d 829, 833-42 (4th Cir. 2001) (applying professional judgment test, not deliberate indifference), with Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008) (treating both standards as equivalent to deliberate indifference), and Ambrose v. Puckett, 198 F. App'x 537, 539-40 (7th Cir. 2006) (treating both standards as equivalent to professional judgment).
-10-

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 11 of 17
that far apart and, to the extent that the Youngberg phrasing governs and is more helpful to Battista, that only reinforces the outcome reached by the district judge.
Both the Farmer and Youngberg tests leave 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. This is a regular theme in the Eighth Amendment cases, Farmer, 511 U.S. at 844, and it is equally important under Youngberg. There, while stressing that civilly committed persons are entitled to an extra margin of protection, the Court also stated that there can be more than one reasonable judgment, and that the choice in such cases is for the professional. 457 U.S. at 321, 324-25.
Finally, while an "intent to punish" is not required even under Farmer, it could certainly be highly significant under Farmer and, a fortiori, under Youngberg. So it is useful to dispose at the outset of plaintiff's claim that Robert Murphy--the superintendent of the Treatment Center--admitted that whether Battista should "be punished for her lack of good judgment by withholding medical care" was "a consideration" when Murphy wrote the security report rejecting hormone therapy.
This overreads Murphy's testimony. That Battista had regularly evaded Treatment Center restrictions and engaged in sexual contacts with other detainees was fully established, and it
-11-

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 12 of 17
enhanced the danger to her in the future if her attractiveness to other detainees was increased. So that fact was legitimately a "consideration" that could affect whether hormone treatment could be safely allowed. The term "punish" was not Murphy's own but was inserted into the question itself by Battista's counsel during the deposition:
Q: Should Battista be punished for her lack of good judgment by withholding medical care?
A: That's a consideration, yes. However, even without an evil motive, the district court could reasonably find that there had been "denial," "delay" and "interference" under Eighth Amendment precedent and that a reasonable professional judgment had not been exercised under Youngberg. It has been fifteen years since Battista first asked for treatment, and for ten years, health professionals have been recommending hormone therapy as a necessary part of the treatment. When during the delay Battista sought to mutilate herself, the Department could be said to have known that Battista was in "substantial risk of serious harm." Farmer, 511 U.S. at 847. But the question remains whether the withholding of hormone therapy was "wanton" or outside the bounds of "reasonable professional judgement." Medical "need" in real life is an elastic term: security considerations also matter at prisons or civil counterparts, and administrators have to balance conflicting
-12-

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 13 of 17
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," Farmer, 511 U.S. at 844-45, or beyond "reasonable professional" limits, Youngberg, 457 U.S. at 321, 324-25.
Here, despite much early resistance, Brugliera v. Comm'r of Mass. Dep't of Corr., No. 07-40323-JLT (D. Mass. Dec. 18, 2009); Kosilek v. Maloney, 221 F. Supp. 2d 156, 159-60 (D. Mass. 2002), hormone therapy for GID is now provided in some cases in Massachusetts prisons. The defendants point to this to establish their good faith; Battista, to show that providing her the therapy would be consistent with security needs. Both positions are overstated. Hormone therapy has not been welcomed by the Department, but both the Treatment Center's internal environment and Battista herself arguably presented added risks.
The Treatment Center is the one facility where Battista can be housed as a civil inmate and, while the Department could establish a branch elsewhere, Mass. Gen. Laws ch. 123A, § 2, this would pose administrative difficulties and be isolating for Battista. The civil-side residents of the Treatment Center contain a disproportionate number of male sex offenders who might threaten one who presents herself as female. And Battista has a record of infractions and sexual contacts and risk-taking that colorably place her at greater risk from invited or uninvited sexual contact.
-13-

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 14 of 17
Nor is Battista's willingness to take risks for herself decisive. The defendants have an obligation to take reasonable measures to protect inmates, Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)), and Battista is quite likely to sue if preventable harm occurs. Battista will bear some of the risk of the hormone therapy, but not all of it. And, while she could be kept in protective custody available at the Treatment Center, this custody--as currently structured--involves confinement for most of the day and other disadvantages that Battista is unwilling to tolerate.
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. United States v. QuiñonesMedina, 553 F.3d 19, 22 (1st Cir. 2009). Yet this would be a much harder case if defendants had proffered a persuasive and untainted professional judgment that--while hormone therapy would help Battista--the dangers, security costs and other impediments made it infeasible. For the problem is not one of callous guards or inept medical care but of conflicting considerations. As we said in an earlier case involving the Treatment Center:
Any professional judgment that decides an issue involving conditions of confinement must embrace security and administration, and not merely medical judgments. . . . The administrators are responsible to the state and to the public for making professional
-14-

Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 15 of 17

judgments of their own, encompassing

institutional concerns as well as individual

welfare.

Nothing in the Constitution

mechanically gives controlling weight to one

set of professional judgments.

Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993).

Yet in this instance, as the record now stands, the

defendants have forfeited the advantage of deference. Initially,

the district judge was far from anxious to grant the relief sought.

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 in this instance. The details are laid out in his

oral opinion and the record contains support for his conclusion.

Several examples stand out.

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.

Second, once the medical prescription was clear, several

years passed before the defendants produced a substantial security

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Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 16 of 17
justification; and this, it turns out, depended in part on inaccurate data in paragraphs largely written by Department counsel and inserted at counsel's request after Murphy had made his decision and submitted his initial draft. Murphy admitted in his trial affidavit that he had miscounted the PREA incidents in 2007 and 2008; there were really 41, not 68, reported incidents at the Treatment Center.
Third, 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. Defendants now show some signs of retreating from this all or nothing choice,5 but not far: this is consistent with a pattern of slow retreats to the next redoubt. The district court may well be right that a detailed solution will be developed only when the choice is forced on defendants.
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. Rather, the Department's action is undercut
5Finally faced with a decision by the district court to require therapy, defendants now say they have 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." This may on investigation be less than the quotation suggests but that is another matter.
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Case 1:05-cv-11456-DPW Document 243 Filed 05/23/11 Page 17 of 17
by a composite of delays, poor explanations, missteps, changes in position and rigidities--common enough in bureaucratic regimes but here taken to an extreme. This, at least, is how the district court saw it, and it had a reasonable basis for that judgment.
There are a few loose ends to address. One is that the defendants say that the harm faced by Battista is neither immediate nor irreparable--common requisites for preliminary relief--but, as already noted, the injunction is not preliminary as to her entitlement to hormone therapy. And while the risk of selfmutilation is unpredictable, it grows as the litigation drags on. They also say that the risk of physical assault will be increased by therapy, which may be so but is not decisive: medical treatment often poses risks and invites trade-offs.
Another set of defendant arguments is contained only in the reply brief. These include a claim that the decision is inconsistent with the court's earlier denial of relief. This claim, perhaps imprudently, draws attention to the experience with the Department gained by the district court after that denial. Anyway, claims first raised only in reply briefs are forfeit, Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992), and we note only that none of them appear promising even if they had been preserved.
Affirmed.
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 Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SANDY JO BATTISTA,

)

Plaintiff,

)

)

v.

)

)

KATHLEEN M. DENNEHY, ET AL., )

Defendants.

)

CIVIL ACTION NO. 05-11456-DPW

WOODLOCK, D.J.

MEMORANDUM AND ORDER February 10, 2009

Following my findings and conclusions with respect to the

propriety of preliminary injunctive relief, as dictated on the record in the notes of the Court Reporter on October 15, 2008, I

issued a Preliminary Injunction Order (Docket No. 120), together with a Memorandum (Docket No. 119) detailing my reasons for crafting the injunction in the way I did. Thereafter, the

defendants (hereinafter “DOC”) moved for reconsideration with respect to paragraph 8 of the Preliminary Injunction Order,

contending that the restrictions in the DOC's authority to obtain medical or mental health information somehow impermissibly restricted its ability to carry out its statutory,

constitutional, contractual, and litigation responsibilities. See Motion to Reconsider (Docket No. 121). Battista opposed the

motion. On February 6, 2009, I held a hearing on the DOC's motion.
While I noted at that hearing that it was unlikely that the

Preliminary Injunction Order as it stood would be read to bar the release of records to the DOC without prior court order if there

was an imminent threat of harm to Battista or others, I told the parties I would be prepared to issue a clarifying amendment. I

Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 2 of 7
directed the parties to prepare a joint form of order expressly reflecting such an amendment.
On February 9, 2009, the parties each filed separate submissions, indicating that they could not reach an agreement on language modifying paragraph 8 of the Preliminary Injunctive Order. Instead, each side proposed differing language for such modification. See Plaintiff's Letter (Docket No. 126) and Defendants' Response (Docket No. 127). Upon review of these submissions, I find neither proposal managed to achieve the objective I outlined at the hearing.
Accordingly, I will modify the Preliminary Injunction Order to reflect more precisely my direction regarding the scope of the injunctive relief necessary to preserve Battista's constitutional rights, while balancing the DOC's mandate with respect to security issues. These security issues are the only matters raised by the DOC that would warrant a modification of the injunction.1 In all other respects, I have found that the requirement that the DOC seek prior permission of the Court before obtaining any of the medical or mental health information generated by the clinicians (by filing a motion supported by a
1The DOC attached to its response an affidavit (Docket No. 127-2) offering in a conclusory fashion an objection to the Preliminary Injunction Order. This belated affidavit, the first purportedly evidentiary submission -- as distinguished from lawyer's argument concerning the terms of the preliminary injunction -- adds nothing to what has already been developed in these proceedings. Indeed, it continues the defendants' pattern of neglecting to engage with the Plaintiff's particular circumstance by invoking generalities unballasted by specific demonstrations of particularized problematic circumstances.
2

Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 3 of 7
credible showing of the need for such records), to be a
permissible use of my injunctive powers under the circumstances
and particularly appropriate to ensure that the DOC does not
continue to act with deliberate indifference to Battista's
medical needs.
Apart from paragraph 8 of the Preliminary Injunction Order,
all other provisions contained in the initial Order (Docket No.
120) will remain in full force and effect. Only paragraph 8 of
the Preliminary Injunction Order is modified; in the Amended
Preliminary Injunction Order that paragraph is amended to read as
follows:
8. Neither the DOC or any of its prison staff may obtain any medical or mental health information generated from the evaluation or treatment of Battista from its contractual health care providers without a prior Order of this Court.
(a) This paragraph shall not restrict the DOC or any prison staff from obtaining any medical or mental health information generated by its contractual health care providers where there exists an immediate threat of serious bodily harm to Battista or to others, when the information sought by the DOC pertains to legitimate concerns by the DOC for the safety and security of Battista or others. In obtaining such medical or mental health information pursuant to this harm exception, the DOC is not restricted to instances where the contractual health care providers make the determination that there is an imminent threat of serious bodily harm to Battista or others; rather, the DOC may consider other sources of information (i.e., intelligence from non-health care providers) in determining whether there exists an imminent threat of serious bodily harm to Battista or others, and whether the medical and mental health information is necessary for the DOC to carry out its mandate to protect the safety and security of Battista and others.
3

Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 4 of 7
(b) In any instance where the DOC seeks disclosure of medical or mental health information from the evaluation or treatment of Battista based on the perceived existence of an imminent threat of serious bodily harm to Battista or others, such disclosure shall be limited to the information necessary to address the safety and security threat and may not be used for any reason other than to secure Battista's safety or the safety of others. In the event the contractual health care providers make any such disclosure of Battista's medical or mental health information, the DOC shall, within five (5) days of receipt of the information, provide a Notice to this Court reporting the type and nature of the information obtained, and the specific basis on which the DOC sought disclosure with respect to security and safety concerns. Additionally, the Superintendent of the Massachusetts Treatment Center shall file an Affidavit representing to the Court that the medical or mental health information obtained pursuant to this harm exception will not be used for any reason other than to secure Battista's safety or the safety of others, and further, that all reasonable and necessary steps shall be taken to ensure that this information will not be placed within the DOC in a manner which would make it accessible to others not concerned with safety issues. The Notice and Affidavit filed by the DOC pursuant to this provision may be filed under seal, and must be disclosed to Battista's counsel.
(c) Should the DOC or any of its prison staff seek to obtain medical or mental health information, for reasons that do not involve any immediate threat of serious harm to Battista or others, the DOC must provide a specific and particularized evidentiary demonstration of good cause for such disclosure.
The essential objective which gave rise to the limitation on
immediate access by the defendants to the clinical records was
that there be no interference, direct or indirect, in the
development of an independent clinical judgment regarding the
4

Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 5 of 7
proper course of therapy for the plaintiff. At the hearing in this matter on February 6, 2009, I informed the parties that the first January 27, 2009 status report of the therapy team had given me reason to believe that the perceived posture of the defendants was coloring or distorting the approach and judgment of the clinicians.
With respect to the January 27, 2009 supervision report by the clinicians, I stated my anxious concerns at the February 6th hearing that in some fashion -- anticipatory perhaps -- the individuals who were required to file the monthly report have taken it upon themselves to make an evaluation of the likelihood that their clinical suggestions would be accepted by the DOC, and, consequently, appeared to be tailoring or, in some fashion, modifying their independent clinical judgment.
At one point in the report there is language that reads: “It seems important in the near future to explore both the prison obstacles to taking hormones because of her civil status and concerns for her safety (which she minimizes glibly) and the fact that we doubt that she will ever be granted SRS as long as she is in custody.” Language to similar effect is found in the penultimate paragraph of the report, where it reads: “Any decision to provide hormones should be with the understanding that, realistically, this may be all that can get accomplished. Given her civil commitment, we are not even sure that if the
5

Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 6 of 7
clinical decision is made to try hormones, it will be accomplished because of security concerns.”
As I informed counsel at the February 6th hearing, I believe the clinicians should be candid with the plaintiff about the real world environment in which their recommendations will be resolved. And if the plaintiff has a tendency to be less than fully sensitive to safety concerns, that is something which should be discussed in their sessions as they deem clinically appropriate.
But the clinicians should not approach their task on the assumption that their independent clinical judgment will be disregarded or should be tailored in some fashion by their own “doubt that [the plaintiff] will ever be granted SRS as long as she is in custody.”
As I emphasized to the parties at the hearing, the clinicians' responsibility is to provide their best clinical judgment concerning the proper treatment of the plaintiff without regard to what others in authority may do with that clinical advice.
The record in this case suggests a passive aggressive approach by the defendants to their responsibilities for the medical care of the plaintiff. For that reason interlocutory relief was indicated to insure untainted clinical treatment and advice. The defendants' past approach and their current
6

Case 1:05-cv-11456-DPW Document 128 Filed 02/10/09 Page 7 of 7
litigation posture must not interfere with the best judgment of the clinicians. Accordingly, the clinicians should carefully consider whether they are operating under some sort of anticipatory influence by the defendants to address their task in a less than independent fashion. If they are, they are not properly approaching their responsibilities.
The parties are directed to provide a copy of this Memorandum to the clinicians responsible for the status reports ordered by the Preliminary Injunction Order.

SO ORDERED.

/s/ Douglas P. Woodlock DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE

7

 
 Case 1:05-cv-11456-DPW Document 223 Filed 08/23/10 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

SAN9Y J. BATTISTA,

)

)

Plaintiff,

)

)

v.

) Civil Action

HAROLD W. C~ARKE, MICHAEL CORSINI, in their official capacities;

) No. ) 05-1.1456-DPW
)
)

)

Defendants.

)

)

[F~~mD) )

(I

MODIFIED PRELIMINARY INJUNCTION ORDER

It is hereby ORDERED that:

.•"

The DOC, its agents, servants and/or employees, shall

ensure that the GID Treatment Plan set forth herein

for Battista is implemented by the DOC's mental health

services provider, MHM, and that parallel medical

treatment will be provided by the DOC's medical

service provider. Treatment may not be materially

altered without prior permission of the Court, and any

failure of the DOC to comply with the directives

contained herein may result in contempt proceedings or

other sanctions.

2. Pursuant to the GID Treatment Plan Supplement, Battista will receive psychotherapy at least once every other week, with sessions lasting at least forty-five minutes; therapy sessions shall be conducted in a private conference room or private office at the Massachusetts Treatment Center.

3. Therapy sessions must be conducted by Mr. Neil Norcliffe, the Mental Health Director for the Treatment Center. Should MHM seek to change the treatment plan by using a different therapist for Battista, the DOC shall notify this Court and Battista's counsel of such change at least two weeks ir. advance.

Case 1:05-cv-11456-DPW Document 223 Filed 08/23/10 Page 2 of 5
4. During these therapy sessions, Mr. Norcliffe will provide psychotherapy focusing on the specific areas of exploration detailed in Dr. Levine's June 18, 2008 report and the GID Treatment Plan Supplement dated July 30, 2008, e.g., Battista's psychosexual development, masochism, interplay of GID with comorbid mental disorders including pedophilia, and Battista's understanding of her gender mosaic.
5. In addition to conducting biweekly therapy sessions with Battista, Mr. Norcliffe will meet in regular monthly supervision sessions with Dr. Deiner, Dr. Levine and other MHM clinicians with whom Dr. Deiner chooses to consult. Monthly supervision reports shall be signed by Dr. Deiner, Mr. Norcliffe, Dr. Levine, and any other MHM clinician consulted by Dr. Deiner. The monthly reports shall be provided to the Court under seal and to counsel for the DOC and counsel for Battista. The monthly supervision reports must provide an update on the progress of therapy, with specific reference to the criteria set forth in this Order. The reports must also include opinions as to other potential feminizing intervention that may be requested by Battista and discussed in therapy. The DOC, its agents, servants, and/or employees are prohibited from dictating, directly or indirectly, the manner, format, or substance in which the monthly report is prepared by the clinicians. The monthly report shall specifically address the following:
A. When will the feminizing effects of Ms. Battista's hormone therapy lii<ely begin to materialize? What effects is Ms. Battista likely to experience and when?
B. Is she continuing to cooperate in therapy and actively participating in discussing issues related to her comprehensive mental health?
C. How is she adjusting psychologically to her feminization, i.e., the physical changes brought about by hormone therapy?
D. What is her ongoing perspective on the efficacy of the hormone therapy and how that compares with her expectations prior to receiving the therapy?

Case 1:05-cv-11456-DPW Document 223 Filed 08/23/10 Page 3 of 5
E. How has the hormone therapy affected her interactions with other residents at the Treatment Center?
F. How has the hornone therapy affected her perception of the quality of her life at the Treatment Center?
G. An update on the GID Clinical Supervision Group's impression of Ms. Battista's progress in therapy.
H. What, if any, additional feminizing interventions has Ms. Battista requested? Does the GID tean recommend s'.lch interventions? Why or why not?
6. The DOC, its agents, servants and/or employees are prohibited from taking any actions, directly or indirectly, to coerce, or otherwise improperly influence recommendations or conclusions concerning any aspect of Battista's GID Treatment. The DOC is prohibited from interfering in any manner with any medical or mental health decisions nade by the contractual medical or mental health care providers. The DOC shall notify the medical and mental health care providers of this Order forthwith by providing them with a copy of this Order, and shall advise these providers that any behavior which any provider deems to be in violation of this Order shall be documented in writing and reported to this Court forthwith.
7. Neither the DOC or any of its prison staff may obtain any medical or mental health information generated from the evaluation or treatment of Battista from its contractual health care providers without a prior Order of this Court.
(a) This paragraph shall not restrict the DOC or any prison staff from obtaining any medical or mental health information generated by its contractual health care providers where there exists an immediate threat of serious bodily harm to Battista or to others, when the information sought by the DOC pertains to legitimate concerns by the DOC for the safety and security of Battista or others. In obtaining such medical or mental health information pursuant to this harm exception, the DOC is not restricted to instances

Case 1:05-cv-11456-DPW Document 223 Filed 08/23/10 Page 4 of 5
where the contractual health care providers make the determination that there is an imminent threat of serious bodily harm to Battista or others; rather, the DOC may consider other sources of information (i.e., intelligence from non-health care providers) in determining whether there exists an imminent threat of serious bodily harn to Battista or others, and whether the medical and mental health information is necessary for the DOC to carry out its mandate to protect the safety and security of Battista and others.
(b) In any instance where the DOC seeks disclosure of medical or mental health information from the evaluation or treatment of Battista based on the perceived existence of an imminent threat of serious bodily harm to Battista or others, such disclosure shall be limited to the information necessary to address the safety and security threat and may not be used for any reason other than to secure Battista's safety or the safety of others. In the event the contractual health care providers make any such disclosure of Battista's medical or mental health information, the DOC shall, within five (5) days of receipt of the information, provide a }:otice to this Court reporting the type and nature of the infornation obtained, and the specific basis on which the DOC sought disclosure with respect to security and safety concerns. Additionally, the Superintendent of the Massachusetts Treatment center shall file an Affidavit representing to the Court that the medical or mental health information obtained pursuant to this harm exception will not be used for any reason other than to secure Battista's safety or the safety of others, and further, that all reasonable and necessary steps shall be taken to ensure that this information will not be placed within the DOC in a manner which would make it accessible to others not concerned with safety issues. The Notice and Affidavit filed by the DOC pursuant to this provision may be filed under seal, and must be disclosed to Battista's counsel.
(c) Should the DOC or any of its prison staff seek to obtain medical or mental health information, for reasons that do not involve any immediate threat

Case 1:05-cv-11456-DPW Document 223 Filed 08/23/10 Page 5 of 5

of serious harm to Battista or others, the DOC nust provide a specific and particularized evidentiary demonstration of good cause for such disclosure.

8. Within seven (7) business days of the entry of this Order, the DOC shall provide hornone therapy to Battista in accordance with the recommendation of Dr. Levine, Dr. Zakai, and Ruth Khowais, Psy.D. on June 19, 2009, and the prescription by endocrinologist Dr. Mohammed Saad dated August 4, 2009 and August 14, 2009.

9. Battista shall be allowed to purchase any and all items pursuant to Addendum E to the DOC's Policy for the :dentification, Treatment and Correctional Management of Innates Diagnosed with Gender Identity Disorder (GID) 103 DOC 652. The purchase of a bra and for the implementation of hair removal are matters which should be addressed as part of the therapy and specific recommendations as to these two matters nust be made by Mr. Norcliffe, Dr. Deiner and Dr. Levine in connection with the supervision reports to be submitted to the Court, consistent with the obligation that "[d]uring therapy, an ongoing assessment and evaluation will be done to determine appropriateness of further feninization." The DOC shall ensure that Battista is provided with sufficient blank order forms for purchase of the approved clothing and canteen items identified above, as well as postings of new items, deleted itens, and price changes.

10. Battista shall also be made part of any appropriate group therapy if such therapy becomes available.

11. The DOC shall provide copies of this Preliminary Injunction Order and the contemporaneous Memorandum to Dr. Deiner, Mr. Norcliffe, Dr. Levine, and to legal counsel or other authorized representative for the contractual health care service providers.

SO ORDERED.

iJnu,, I Itk/14,~_.
DOUGL•AS P. WOODLOCK
UNITED STATSS DISTRICT JUDGE

 
 Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 1 of 28
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:05−cv−11456−DPW

CLOSED

Battista v. Dennehy et al Assigned to: Judge Douglas P. Woodlock Lead case: 1:05−cv−12383−DPW Member case: (View Member Case) related Case: 1:12−cv−11451−DPW
Case in other court: First Circuit, 10−01965 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Sandy J. Battista

Date Filed: 07/08/2005 Date Terminated: 07/11/2011 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Emily E. Smith−Lee SLN Law, LLC 10 East Chestnut Street Sharon, MA 02067 781−784−2322 Fax: 781−328−1772 Email: esmithlee@slnlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neal E. Minahan , Jr. Smith Lee Nebenzahl LLP One Post Office Square Sharon, MA 02067 781−327−1917 Fax: 781−793−0600 Email: nminahan@slnlaw.com TERMINATED: 07/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ada Y. Sheng McDermott Will & Emery 28 State Street Boston, MA 02109 (617) 535−4073 Fax: (617) 535−3800 Email: asheng@mwe.com ATTORNEY TO BE NOTICED
Dana M. McSherry McDermott, Will & Emery LLP 28 State Street Boston, MA 02109 617−535−4060 Fax: 617−535−3800 Email: dmcsherry@mwe.com ATTORNEY TO BE NOTICED

V.
Defendant
Kathleen M. Dennehy Commissioner TERMINATED: 06/15/2010

represented by Joan T. Kennedy Department of Correction Suite 600 70 Franklin Street Suite 600 Boston, MA 02110

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 2 of 28

617−727−3300 Fax: 617−727−7403 Email: Joan.Kennedy@massmail.state.ma.us 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 ATTORNEY TO BE NOTICED

Defendant
Superintendent Robert Murphy TERMINATED: 06/15/2010

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

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

Defendant
Steve Fairly Director of Security TERMINATED: 06/15/2010

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

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

Defendant
Susan J Martin Director of Health Services TERMINATED: 06/15/2010

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

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

Defendant
Gregory J. Hughes LICSW TERMINATED: 06/15/2010

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

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

Defendant
UMass Correctional Health Program TERMINATED: 06/15/2010

represented by 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 ATTORNEY TO BE NOTICED

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 3 of 28

Defendant Terre K. Marshall TERMINATED: 06/15/2010
Defendant Harold W. Clarke
Defendant Michael Corsini Superintendent of Massachusetts Treatment Center. Substitution for Robert Murphy (the former Superintendent).
Defendant Luis S. Spencer
Interested Party MHM Services, Inc.'s

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
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
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
represented by Joan T. Kennedy (See above for address) ATTORNEY TO BE NOTICED
Richard C. McFarland (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen E. Hughes Bonner, Kiernan, Trebach & Crociata, LLP 40 Court Street, 3rd Floor Boston, MA 02108 617−426−3900 Fax: 617−426−0380 Email: shughes@bonnerkiernan.com TERMINATED: 08/08/2011 ATTORNEY TO BE NOTICED

Date Filed 07/08/2005 07/08/2005 07/08/2005

# Docket Text
1 Application to Proceed Without Prepayment of Fees and Affidavit by Sandy J. Battista.(Jenness, Susan) (Entered: 07/11/2005)
2 MOTION for Leave to Proceed in forma pauperis by Sandy J. Battista.(Jenness, Susan) (Entered: 07/11/2005)
3 Verified COMPLAINT against Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes, UMass Correctional Health Program Filing fee: $ 0.00, receipt number 0.00, filed by Sandy J. Battista. (Attachments: # 1 Civil Cover

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 4 of 28

07/08/2005 07/08/2005 07/08/2005 07/08/2005 07/08/2005 07/12/2005 07/13/2005
07/13/2005 07/22/2005 07/22/2005 07/22/2005 07/22/2005 07/25/2005 07/27/2005 08/01/2005 08/02/2005

Sheet)(Jenness, Susan) (Entered: 07/11/2005)
4 EXHIBIT re 3 Complaint, by Sandy J. Battista. (Jenness, Susan) (Entered: 07/11/2005)
5 MEMORANDUM OF LAW in support of Application for Temporary Restraining Order and/or in the alternative for Preliminary Injunction by Sandy J. Battista. (Jenness, Susan) (Entered: 07/11/2005)
6 Proposed Document(s) submitted by Sandy J. Battista. Document received: Proposed Order to Show Cause. (Jenness, Susan) (Entered: 07/11/2005)
If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Dein. (Jenness, Susan) (Entered: 07/11/2005)
7 MOTION for Temporary Restraining Order, or in the alternative, MOTION for Preliminary Injunction, by Sandy J. Battista.(Rynne, Michelle) Additional attachment(s) added on 7/12/2005 (Nici, Richard). (Entered: 07/12/2005)
8 Judge Douglas P. Woodlock : SHORT ORDER OF NOTICE entered re 7 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Sandy J. Battista,, 3 Complaint, filed by Sandy J. Battista,, 5 Memorandum of Law. Defendant shall file a response by 7/22/05.(Rynne, Michelle) (Entered: 07/12/2005)
9 Judge Douglas P. Woodlock : ORDER entered granting 1 Motion for Leave to Proceed in forma pauperis, granting 2 Motion for Leave to Proceed in forma pauperis: The Clerk shall issue summonses and the United States Marshal shall serve a copy of the summonses, complaint, and this order upon defendants Kathleen Dennehy, Commissioner, Superintendent Robert Murphy, Steve Fairly, Director of Security, Susan J. Martin, Director of Health Services, Gregory J. Hughes, LICSW, and U. Mass. Correctional Health Program, as directed by plaintiff with all costs of service to be advanced by the United States. (Greenberg, Rebecca) (Entered: 07/13/2005)
Summons Issued as to Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes, UMass Correctional Health Program. (Greenberg, Rebecca) (Entered: 07/13/2005)
10 Opposition re 7 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (McFarland, Richard) (Entered: 07/22/2005)
11 MEMORANDUM in Opposition re 7 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1)(McFarland, Richard) (Entered: 07/22/2005)
12 MOTION for Leave to File Memorandum of Law in Excess of Twenty Pages by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes.(McFarland, Richard) (Entered: 07/22/2005)
13 CERTIFICATE OF SERVICE by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes re 12 MOTION for Leave to File Memorandum of Law in Excess of Twenty Pages, 10 Opposition to Motion, 11 Memorandum in Opposition to Motion. (McFarland, Richard) (Entered: 07/22/2005)
Judge Douglas P. Woodlock : Electronic ORDER entered granting 12 Motion for Leave to File excess pages (Rynne, Michelle) (Entered: 07/25/2005)
14 Response by UMass Correctional Health Program To Plaintiff's Application For A Temporary Restraining Order. (O'Shea, Stephen) Additional attachment(s) added on 8/2/2005 (Nici, Richard). (Entered: 07/27/2005)
15 Plaintiff's MOTION for Leave to File a reply to opposition of defendant's Kathleen Dennehy, Robert Murphy, Susan Martin, Steven Fairly and Gregory Hughes to Plaintiff's request for a preliminary injunction by Sandy J. Battista.(Nici, Richard) (Entered: 08/02/2005)
Notice of correction to docket made by Court staff. Correction: docket entry #14 corrected because: the document was unsigned. (Nici, Richard) (Entered: 08/02/2005)

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08/03/2005
08/04/2005 08/04/2005 08/04/2005 08/04/2005 08/10/2005 08/10/2005 08/11/2005 08/11/2005 08/11/2005 08/12/2005 08/17/2005 08/17/2005 08/17/2005 08/17/2005 08/17/2005
08/18/2005 08/18/2005

16 NOTICE of Plaintiff not to oppose relief requested in response of defendant, UMass Correctional Health Program, to plaintiff's application for a temporary restraining order, and/or in the alternative, for a preliminary injunction by Sandy J. Battista (Nici, Richard). (Entered: 08/04/2005)
Judge Douglas P. Woodlock : Electronic ORDER entered granting 15 Motion for Leave to File reply to motion for preliminary injunction. Reply due 8/18/05. (Rynne, Michelle) (Entered: 08/04/2005)
Set/Reset Deadlines as to 7 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order. Replies due by 8/15/2005. (Rynne, Michelle) (Entered: 08/04/2005)
17 SUMMONS Returned Executed Steve Fairly served on 8/3/2005, answer due 8/23/2005. (Nici, Richard) (Entered: 08/08/2005)
18 SUMMONS Returned Executed Robert Murphy served on 8/3/2005, answer due 8/23/2005. (Nici, Richard) (Entered: 08/08/2005)
19 MOTION to Dismiss by UMass Correctional Health Program.(O'Shea, Stephen) (Entered: 08/10/2005)
20 MEMORANDUM in Support re 19 MOTION to Dismiss filed by UMass Correctional Health Program. (O'Shea, Stephen) (Entered: 08/10/2005)
21 MOTION for Consolidation of Evidentiary Hearings by Sandy J. Battista.(Nici, Richard) (Entered: 08/12/2005)
23 MOTION for Evidentiary Hearing by Sandy J. Battista.(Nici, Richard) (Entered: 08/12/2005)
24 REPLY to Response to Motion re 7 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Sandy J. Battista. (Attachments: # 1 Part 2# 2 Part 3)(Nici, Richard) (Entered: 08/15/2005)
22 MOTION for Court to call witnesses as it's own by Sandy J. Battista.(Nici, Richard) (Entered: 08/12/2005)
25 SUMMONS Returned Executed Gregory J. Hughes served on 8/9/2005, answer due 8/29/2005. (Nici, Richard) (Entered: 08/17/2005)
26 SUMMONS Returned Executed Susan J Martin served on 8/9/2005, answer due 8/29/2005. (Nici, Richard) (Entered: 08/17/2005)
27 SUMMONS Returned Executed Kathleen M. Dennehy served on 8/8/2005, answer due 8/29/2005. (Nici, Richard) (Entered: 08/17/2005)
28 SUMMONS Returned Executed UMass Correctional Health Program served on 8/5/2005, answer due 8/25/2005. (Nici, Richard) (Entered: 08/17/2005)
Judge Douglas P. Woodlock : Electronic ORDER entered. ELECTRONIC ORDER REQUIRING ELECTRONIC FILING. It is hereby ORDERED that, unless leave is granted, upon good cause shown, to file paper documents in lieu of electronic filing via this Court's CM/ECF system, ALL future submissions in this case must be electronically filed. Such filings shall be made in accordance with, and subject to, the terms and conditions of electronic filing as set forth by this Court. All parties and counsel who choose to appear in this action must make arrangements to register for participation in electronic case filing, if they have not already done so. It is FURTHER ORDERED that Notices, Orders and Memoranda of the Court will only be filed and served electronically. Once a party or counsel has registered for electronic filing, it is his/her responsibility to monitor his/her e−mail to ensure receipt of electronic notices. Any changes in e−mail addresses must be reported to the Court immediately(Nici, Richard). (Entered: 08/17/2005)
29 MEMORANDUM in Opposition re 19 MOTION to Dismiss filed by Sandy J. Battista. (Nici, Richard) (Entered: 08/25/2005)
30 MEMORANDUM in Support re 19 MOTION to Dismiss filed by Sandy J. Battista. (Nici, Richard) (Entered: 08/25/2005)

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10/19/2005 10/19/2005 10/26/2005 11/07/2005 11/07/2005 11/23/2005 12/05/2005 01/30/2006 03/13/2006 03/13/2006 03/22/2006 03/22/2006
03/23/2006
03/30/2006
04/19/2006 04/19/2006

31 MOTION for Leave to Supplement plaintiff's pending application for a preliminary injunction by Sandy J. Battista.(Nici, Richard) (Entered: 10/20/2005)
32 AFFIDAVIT of Sandy J. Baptista re 31 MOTION for Leave to File by Sandy J. Battista. (Nici, Richard) (Entered: 10/20/2005)
33 RESPONSE to Motion re 31 MOTION for Leave to File filed by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1 Affidavit)(McFarland, Richard) (Entered: 10/26/2005)
34 MOTION to exclude report of Cynthis S. Osbourne and or Motion to strike by Sandy J. Battista.(Nici, Richard) (Entered: 11/08/2005)
35 MEMORANDUM in Support re 34 MOTION to exclude report of Cynthis S. Osbourne and or Motion to strike filed by Sandy J. Battista. (Attachments: # 1 Part 2)(Nici, Richard) (Entered: 11/08/2005)
36 MOTION for Sanctions Against Plaintiff For Improper Communications With Defendants' Expert Witness by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 11/23/2005)
37 Cross MOTION for Sanctions by Sandy J. Battista.(Nici, Richard) (Entered: 12/06/2005)
38 Letter/request (non−motion) from Sandy Battista. Mailed a copy of the docket to Ms. Battista. (Nici, Richard) (Entered: 01/31/2006)
39 MOTION to Appoint Counsel by Sandy J. Battista. (Attachments: # 1 Affidavit)(Nici, Richard) (Entered: 03/15/2006)
40 MEMORANDUM in Support re 39 MOTION to Appoint Counsel filed by Sandy J. Battista. (Nici, Richard) (Entered: 03/15/2006)
41 Opposition re 39 MOTION to Appoint Counsel filed by UMass Correctional Health Program. (Brighton, Anthony) (Entered: 03/22/2006)
42 Judge Douglas P. Woodlock : MEMORANDUM AND ORDER entered granting 39 Motion to Appoint Counsel, denying 7 Motion for Preliminary Injunction, denying 7 Motion for TRO, granting 19 Motion to Dismiss and directing consolidation of this case with Civil Action No. 05−12823 for purposes of appointing the same counsel to conduct the litigation. (Woodlock, Douglas) Additional attachment(s) added on 3/23/2006 (Rynne, Michelle). (Entered: 03/23/2006)
Judge Douglas P. Woodlock : ORDER entered terminating 31 Motion for Leave to File, terminating 34 Motion to exclude, denying 36 Motion for Sanctions, denying 37 Motion for Sanctions, terminating 21 Motion for consolidation of hearings, terminating 22 Motion for Court to call witnesses, terminating 23 Motion for Hearing (Woodlock, Douglas) (Entered: 03/23/2006)
43 Judge Douglas P. Woodlock : ORDER entered. Order Appointing Pro Bono Counsel: It is ORDERED that Julie A. Hardy, Esq. is appointed to represent the plaintiff under the provisions of the United States District Court Plan for the Appointment of Counsel For Indigent Parties in Civil Cases, unless this appointment is declined by written notice (copy to pro bono coordinator) within twenty−one (21) days from the date of this Order. Once this order takes effect, appointed counsel or his or her designated associate(s) shall: (1) promptly file a Notice of Appearance in this action; and (2) serve until the litigation is terminated or the Court enters an order revoking said appointment. Contact: Julie A. Baker, Esq. 120 Tremont Street, Suite 370J, Boston, MA 02108(617)573−8136, BBO #557047. (PSSA, 1) (Entered: 03/30/2006)
44 MOTION for Entry of Judgment under Rule 54(b) by UMass Correctional Health Program.(Brighton, Anthony) (Entered: 04/19/2006)
45 MEMORANDUM in Support re 44 MOTION for Entry of Judgment under Rule 54(b) filed by UMass Correctional Health Program. (Attachments: # 1 # 2)(Brighton, Anthony) (Entered: 04/19/2006)

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05/08/2006 09/12/2006 10/11/2006 11/20/2006 12/04/2006 12/04/2006 12/04/2006 12/18/2006 12/18/2006 12/18/2006 02/08/2007 02/12/2007
03/22/2007

46 NOTICE of intent not to oppose motion of defendant by Sandy J. Battista (Nici, Richard) Additional attachment(s) added on 5/9/2006 (Nici, Richard). (Entered: 05/09/2006)
47 NOTICE of Hearing : Scheduling Conference set for 10/12/2006 03:00 PM in Courtroom 1 before Judge Douglas P. Woodlock. All pending matters will be addressed at this conference.(Rynne, Michelle) (Entered: 09/12/2006)
ELECTRONIC NOTICE Cancelling Hearing. Scheduling Conference set for 10/12/2006 03:00 PM is cancelled. (Rynne, Michelle) (Entered: 10/11/2006)
48 MOTION for Reconsideration by Sandy J. Battista. (Attachments: # 1 Affidavit)(Nici, Richard) (Entered: 11/22/2006)
49 Opposition re 48 MOTION for Reconsideration filed by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1 Affidavit)(McFarland, Richard) (Entered: 12/04/2006)
50 MOTION for Discovery − Order Compelling Plaintiff to Submit to a Mental Examination by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes.(McFarland, Richard) (Entered: 12/04/2006)
51 MEMORANDUM in Support re 50 MOTION for Discovery − Order Compelling Plaintiff to Submit to a Mental Examination filed by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 12/04/2006)
52 MOTION for Leave to File by Sandy J. Battista. (Attachments: # 1 # 2 Exhibit)(Nici, Richard) (Entered: 12/19/2006)
53 MEMORANDUM in Opposition re 50 MOTION for Discovery − Order Compelling Plaintiff to Submit to a Mental Examination filed by Sandy J. Battista. (Nici, Richard) (Entered: 12/19/2006)
54 MEMORANDUM OF LAW by Sandy J. Battista to 53 Memorandum in Opposition to Motion. Exhibits filed and not scanned.(Nici, Richard) (Entered: 12/19/2006)
55 Letter/request (non−motion) from S. Baptista. (Nici, Richard) (Entered: 02/08/2007)
56 Judge Douglas P. Woodlock : ORDER entered. [Summary of Text: On January 9, 2007, Plaintiff sent a letter to the Pro Se Staff Attorneys Office requesting a list of ten (10) of the major law firms and their addresses, so that she may write to them personally with a procedural outline of her claims, and forward to them documentary evidence for their consideration. The basis for this request is that she was informed that obtaining pro bono counsel takes time, and that in her view, counsel would be more inclined to accept an appointment knowing the facts and evidence of her cases. Plaintiff's request is DENIED. The Court will not approve of the dissemination of this its confidential list of its pro bono contacts or sources....While Plaintiff may, of course, make her own efforts to secure counsel to represent her, she may not represent to any law firms or attorneys that this Court endorsed the direct solicitation. Alternatively, if Plaintiff does not wish the Pro Bono Coordinators to continue their efforts because of the time delay, she may elect to withdraw her request for a successor appointment of pro bono counsel, and proceed pro se, by filing a Notice with the Court.](PSSA, 1) (Entered: 02/12/2007)
57 Judge Douglas P. Woodlock : ORDER FOR APPOINTMENT OF PRO BONO COUNSEL AND ORDER ON PENDING MOTIONS entered: it is hereby Ordered that Erin Anderson, Esq. is appointed as successor pro bono counsel to Attorney Julie A. Baker to represent the Plaintiff Sandy J. Battista in C.A 05−12383−DPW and C.A. 05−11456−DPW. Contact Information for pro bono counsel is: Erin Anderson, Esq., P.O. Box 934, York Harbor, Maine 03911 (207)363−9113 (fax)(774) 888−9043 (cell) e−mail: erino27@yahoo.com. It is Further Ordered that Plaintiff's pro se Motion for Reconsideration of the Application for a Temporary Restraining Order (#48), Defendants' Motion for an Order Compelling Plaintiff to Submit to a Mental Examination (#50), Defendant University of Massachusetts's Motion for Entry of Separate and Final Judgment (#44), and Plaintiff's Motion for Leave to File a Reply (#52) are all DENIED without prejudice. The parties may reassert such terminated motions no earlier than forty−five (45) days from the date of this Order in order to

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05/09/2007 05/10/2007 05/10/2007 06/26/2007
06/26/2007 06/26/2007
07/10/2007 07/10/2007
07/10/2007 07/12/2007 07/12/2007 10/26/2007 10/26/2007 11/05/2007 11/16/2007
11/16/2007

permit newly appointed counsel a reasonable period to assess the issues in these cases. The parties are reminded that any motion submitted to the Court must comply with Local Rule 7.1. (PSSA, 1) Modified on 3/22/2007 to correct typographical errors. (PSSA, 1). (Entered: 03/22/2007)
58 MOTION for Extension of Time by Sandy J. Battista.(Nici, Richard) (Entered: 05/09/2007)
59 MOTION for Entry of Judgment under Rule 54(b) by UMass Correctional Health Program.(Brighton, Anthony) (Entered: 05/10/2007)
60 MEMORANDUM in Support re 59 MOTION for Entry of Judgment under Rule 54(b) filed by UMass Correctional Health Program. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Brighton, Anthony) (Entered: 05/10/2007)
61 MOTION for Extension of Time to 10/26/07 to Complete Discovery Pursuant to Fed. R. Civ. P. 56(f) by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1 Affidavit)(McFarland, Richard) (Entered: 06/26/2007)
62 MOTION for Discovery −Renewed Motion for Order Compelling Plaintiff to Submit to Mental Examinations by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes.(McFarland, Richard) (Entered: 06/26/2007)
63 MEMORANDUM in Support re 62 MOTION for Discovery −Renewed Motion for Order Compelling Plaintiff to Submit to Mental Examinations filed by Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 06/26/2007)
64 MOTION for Protective Order by Sandy J. Battista.(Nici, Richard) (Entered: 07/10/2007)
65 MEMORANDUM in Opposition re 61 MOTION for Extension of Time to 10/26/07 to Complete Discovery Pursuant to Fed. R. Civ. P. 56(f), 62 MOTION for Discovery −Renewed Motion for Order Compelling Plaintiff to Submit to Mental Examinations filed by Sandy J. Battista. (Nici, Richard) (Entered: 07/10/2007)
66 MEMORANDUM in Support re 64 MOTION for Protective Order filed by Sandy J. Battista. (Attachments: # 1 Exhibit)(Nici, Richard) (Entered: 07/10/2007)
67 Letter/request (non−motion) from New Mexico Legal Aid. (Nici, Richard) (Entered: 07/12/2007)
Judge Douglas P. Woodlock : Electronic ORDER entered ALLOWING 67 Letter/request treated as a motion to withdraw as pro bono counsel. (Lovett, Jarrett) (Entered: 07/12/2007)
68 Letter/request (non−motion) from Sandy Baptista. (Nici, Richard) (Entered: 10/26/2007)
DOCKET SHEET sent to S. Baptista (Nici, Richard) (Entered: 10/26/2007)
69 Letter/request (non−motion) from S. Battista. (Nici, Richard) (Entered: 11/05/2007)
70 Judge Douglas P. Woodlock : ORDER entered. Order Appointing Pro Bono Counsel. There being sufficient cause to exercise the discretionary power of the Court to appoint counsel, it is ORDERED that McDermott Will & Emery LLP is appointed to represent the plaintiff under the provisions of the United States District Court Plan for the Appointment of Counsel For Indigent Parties in Civil Cases, unless this appointment is declined by written notice (copy to pro bono coordinator) within twenty−one (21) days from the date of this Order. Once this order takes effect, appointed counsel or his or her designated associate(s) shall: (1) promptly file a Notice of Appearance in this action; and (2) serve until the litigation is terminated or the Court enters an order revoking said appointment. Contact names: Neal E. Minahan, Jr., Esq.,Emily E. Smith−Lee, Esq.,Ada Sheng, Esq.(PSSA, 1) (Entered: 11/16/2007)
Judge Douglas P. Woodlock : Electronic ORDER entered: In view of the Order Appointing Successor Pro Bono Counsel in this action, it is hereby Ordered that the pending motions in C.A. 05−11456−DPW ((i.e., Motion for an Extension of Time

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 9 of 28

11/16/2007
11/20/2007 11/28/2007 12/05/2007 12/07/2007 12/07/2007 12/10/2007 12/10/2007
12/10/2007
01/08/2008 01/08/2008

(#58), Motion for Entry of Judgment Under Rule 54(b) (#59), Motion for Extension of Time to 10/26/07 to Complete Discovery (#61), Motion for DiscoveryRenewed Motion for an Order Compelling Plaintiff to Submit to Mental Examinations (#62) and Motion for Protective Order (#64)) are all DENIED without prejudice to renew after counsel have consulted. With respect to the pending motions in C.A. 05−12383−DPW, the plaintiff's pro se Motion to Withdraw Request for Successor Counsel (#9), and the pro se Motion for Summary Judgment (#10) are both hereby DENIED. A Status Conference will be set. (PSSA, 1) (Entered: 11/16/2007)
ELECTRONIC NOTICE of STATUS CONFERENCE: A STATUS CONFERENCE (with pro bono counsel and defense counsel in both C.A. 05−11456−DPW and C.A. 05−12383−DPW) is set for December 10, 2007 at 10:00 a.m. in courtroom #1 on the 3rd floor. Counsel shall file a JOINT STATUS REPORT by December 5, 2007, which shall identify any outstanding issues in these two actions, including requests for discovery and any other matters under Fed. R. Civ. P. 16. (Entered: 11/16/2007)
71 NOTICE of Appearance by Neal E. Minahan, Jr on behalf of Sandy J. Battista (Minahan, Neal) (Entered: 11/20/2007)
72 NOTICE of Appearance by Emily E. Smith−Lee on behalf of Sandy J. Battista (Smith−Lee, Emily) (Entered: 11/28/2007)
73 STATUS REPORT JOINTLY FILED by Sandy J. Battista, Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes. (Minahan, Neal) (Entered: 12/05/2007)
74 NOTICE of Appearance by Dana M. McSherry on behalf of Sandy J. Battista (McSherry, Dana) (Entered: 12/07/2007)
75 NOTICE of Appearance by Joan T. Kennedy on behalf of Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes (Kennedy, Joan) (Entered: 12/07/2007)
76 NOTICE of Appearance by Ada Y. Sheng on behalf of Sandy J. Battista (Sheng, Ada) (Entered: 12/10/2007)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock : Status Conference held on 12/10/2007: Court sets discovery deadlines as follows: Plaintiff shall file an amended complaint by January 7, 2008. Plaintiff shall file notice of whether or not going forward as to the defendant, UMass Correctional Health Program and file notice of intentions of pursuing the communication issue. All non−expert discovery, including depositions, and disclosure of experts and expert reports shall be completed by 4/18/08; disclosure of rebuttal experts and rebuttal expert reports by 5/16/08; all expert discovery, including depositions, to be completed by 6/13/08; all dispositive motions to be filed by 7/11/08. (Court Reporter: Brenda Hancock)(Attorneys present: McSherry, Minahan, Smith−Lee, Sheng, Kennedy, McFarland, Burgess) (Lovett, Jarrett) (Entered: 12/10/2007)
Judge Douglas P. Woodlock : Electronic ORDER entered. SCHEDULING ORDER:Plaintiff shall file notice of whether or not going forward as to the defendant, UMass Correctional Health Program and file notice of intentions of pursuing the communication issue. All non−expert discovery, including depositions, and disclosure of experts and expert reports shall be completed by 4/18/08; disclosure of rebuttal experts and rebuttal expert reports by 5/16/08; all expert discovery, including depositions, to be completed by 6/13/08; all dispositive motions to be filed by 7/11/08. Joint Status Report due by 8/5/08 indicating the current status of the case, including discovery proceedings, settlement discussions, pending or contemplated motions, proposed dates for pretrial conferences and for trial, and any other matters which should be addressed at the further conference. Further Status/Scheduling Conference set for 8/12/2008 02:30 PM before Judge Douglas P. Woodlock.Associated Cases: 1:05−cv−12383−DPW, 1:05−cv−11456−DPW(Lovett, Jarrett) (Entered: 12/10/2007)
77 MOTION for Leave to File First Amended Complaint by Sandy J. Battista. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 01/08/2008)
78 NOTICE by Sandy J. Battista of Non−Opposition (Minahan, Neal) (Entered: 01/08/2008)

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01/10/2008
01/10/2008 01/10/2008 01/10/2008
01/28/2008 01/28/2008 01/28/2008 02/11/2008 02/11/2008 02/15/2008 02/29/2008 02/29/2008 03/06/2008 03/21/2008 03/24/2008
03/24/2008

79 Judge Douglas P. Woodlock: ORDER entered granting 77 Motion for Leave to File. The proposed First Amended Complaint (#77) is now the operative pleading in this action. Additionally, the earlier denial of the Motion for Entry of Judgment Under Rule 54(b) by University of Massachusetts Correctional Health Program (#59) is VACATED and the Clerk is to enter Separate and Final Judgment for University of Massachusetts Correctional Health Program, based on the March 22, 2006 Memorandum and Order (#42). (PSSA, 1) (Entered: 01/10/2008)
80 Judge Douglas P. Woodlock: ORDER entered. SEPARATE AND FINAL JUDGMENT in favor of University of Massachusetts Correctional Health Program against Sandy Jo Battista.(PSSA, 1) (Entered: 01/10/2008)
81 First AMENDED COMPLAINT against Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin, filed by Sandy J. Battista. (Attachments: # 1 Exhibit A)(Minahan, Neal) (Entered: 01/10/2008)
82 Summons Issued as to Terre K. Marshall, Harold W. Clarke. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Seelye, Terri) (Entered: 01/16/2008)
85 MOTION to Dismiss Counts III−IX by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin.(McFarland, Richard) (Entered: 01/28/2008)
86 MEMORANDUM in Support re 85 MOTION to Dismiss Counts III−IX filed by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (McFarland, Richard) (Entered: 01/28/2008)
87 CERTIFICATE OF CONSULTATION re 85 MOTION to Dismiss Counts III−IX. (McFarland, Richard) (Entered: 01/28/2008)
88 Assented to MOTION for Extension of Time to February 15, 2008 to File Opposition to Defendants' Motion to Dismiss by Sandy J. Battista.(Minahan, Neal) (Entered: 02/11/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 88 Assented Motion for Extension of Time to File Response/Reply re 85 MOTION to Dismiss Counts III−IX: Response due by 2/15/2008 (Lovett, Jarrett) (Entered: 02/11/2008)
89 Opposition re 85 MOTION to Dismiss Counts III−IX filed by Sandy J. Battista. (Sheng, Ada) (Entered: 02/15/2008)
90 MOTION for Protective Order by Sandy J. Battista.(McSherry, Dana) (Entered: 02/29/2008)
91 MEMORANDUM in Support re 90 MOTION for Protective Order filed by Sandy J. Battista. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McSherry, Dana) (Entered: 02/29/2008)
92 MEMORANDUM in Opposition re 90 MOTION for Protective Order filed by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (Attachments: # 1 Exhibit, # 2 Exhibit)(McFarland, Richard) (Entered: 03/06/2008)
93 MOTION for Leave to File Reply to Defendants' Opposition to Protective Order by Sandy J. Battista. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Sheng, Ada) (Entered: 03/21/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 93 MOTION for Leave to File Reply to Defendants' Opposition to Protective Order by Sandy J. Battista; 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. (Lovett, Jarrett) (Entered: 03/24/2008)
94 REPLY to Response to 90 MOTION for Protective Order filed by Sandy J. Battista. (Attachments: # 1 Exhibit 1)(Smith−Lee, Emily) Modified text on 3/26/2008 (Seelye,

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 11 of 28

03/31/2008 05/14/2008
07/10/2008 08/05/2008 08/06/2008 08/06/2008
08/06/2008 08/11/2008 08/12/2008
08/14/2008 08/14/2008

Terri). (Entered: 03/24/2008)
ELECTRONIC NOTICE of Hearing on Motion 85 MOTION to Dismiss Counts III−IX, 90 MOTION for Protective Order : Motion Hearing set for 5/14/2008 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 03/31/2008)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Motion Hearing held on 5/14/2008 re 85 MOTION to Dismiss Counts III−IX filed by Harold W. Clarke, Robert Murphy, Kathleen M. Dennehy, Terre K. Marshall, Susan J Martin, 90 MOTION for Protective Order filed by Sandy J. Battista: Parties give oral arguments. The Defendant's Motion to Dismiss is ALLOWED in part and DENIED in part. Plaintiff's claims of negligence and negligent infliction of emotional distress, (Counts VII and IX) are DISMISSED. The motion is DENIED as to all other counts. The Plaintiff''s Motion for a Protective Order is DENIED without prejudice to renew if the parties are unable to resolve or narrow the issues. Discovery Schedule set: Defendant's expert report pursuant to rule 26 is due by 7/1/08, and the Plaintiff's expert report is due by 8/15/08, all discovery shall be completed by 9/26/08. (Court Reporter: Diane Molas)(Attorneys present: Minahan, McSherry, Sheng, and Smith−Lee for the pltff; McFarland for the Deft's) (Lovett, Jarrett) (Entered: 05/14/2008)
ELECTRONIC NOTICE OF RESCHEDULING AS TO TIME ONLY: Further Status/Scheduling Conference reset for 8/12/2008 03:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 07/10/2008)
95 STATUS REPORT (JOINT) by Sandy J. Battista. (Sheng, Ada) (Entered: 08/05/2008)
96 MOTION for Preliminary Injunction by Sandy J. Battista.(Smith−Lee, Emily) (Entered: 08/06/2008)
97 MEMORANDUM in Support re 96 MOTION for Preliminary Injunction filed by Sandy J. Battista. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Smith−Lee, Emily) (Entered: 08/06/2008)
98 MOTION for Extension of Time to Two Weeks to File Rebuttal Expert Report by Sandy J. Battista. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Smith−Lee, Emily) (Entered: 08/06/2008)
99 MOTION for Extension of Time to September 5, 2008 to Respond to 96 Plaintiff's Renewed Motion for Preliminary Injunction by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin.(McFarland, Richard) (Entered: 08/11/2008)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status Conference held on 8/12/2008: Court informed that a treatment plan has been faxed over to the pltff today; said plan may be amended depending on the pltff's progress; security issue is being further explored; Court GRANTS 98 Motion for Extension of Time to File Rebuttal Expert Report by Sandy J. Battista to a date to be determined upon disposition on the pltff's Motion for Preliminary Injunction; GRANTS 99 Motion for Extension of Time to File Response re 96 MOTION for Preliminary Injunction by 9/5/2008, reply is due by 9/12/2008; a Hearing as to 96 MOTION for Preliminary Injunction is set for 10/8/2008 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Court Reporter: Diane Molas)(Attorneys present: Minahan, Sheng, & Smith−Lee for the pltff; McFarland for the deft's) (Lovett, Jarrett) (Entered: 08/13/2008)
100 FILING ERROR − FILED PREMATURELY AS LEAVE NOT GRANTED − ANSWER to 81 Amended Complaint by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin.(McFarland, Richard) Modified text on 8/15/2008 (Seelye, Terri). (Entered: 08/14/2008)
101 MOTION for Leave to File Answer by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (Attachments: # 1 Affidavit

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 12 of 28

08/15/2008 08/15/2008
08/15/2008 08/18/2008 09/05/2008 09/11/2008 09/12/2008 09/15/2008 09/16/2008 09/18/2008
09/19/2008 09/22/2008 09/22/2008

Counsel)(McFarland, Richard) (Entered: 08/14/2008)
Notice of correction to docket made by Court staff. Correction: Document #100 corrected because: filed prematurely as leave not granted. (Seelye, Terri) (Entered: 08/15/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 101 MOTION for Leave to File Answer (late) by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin; 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. (Lovett, Jarrett) (Entered: 08/15/2008)
ELECTRONIC NOTICE RESCHEDULING Hearing on Motion 96 MOTION for Preliminary Injunction : Motion Hearing reset for 10/15/2008 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 08/15/2008)
102 ANSWER to First Amended Complaint with Jury Demand by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Steve Fairly, Susan J Martin, Gregory J. Hughes.(Kennedy, Joan) Related Document 81 . Modified text & created link on 8/19/2008 (Seelye, Terri). (Entered: 08/18/2008)
103 Opposition re 96 MOTION for Preliminary Injunction filed by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (Attachments: # 1 Exhibit, # 2 Exhibit)(McFarland, Richard) (Entered: 09/05/2008)
104 Assented to MOTION for Extension of Time to September 19, 2008 to File Response/Reply by Sandy J. Battista.(Minahan, Neal) (Entered: 09/11/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 104 Assented to Motion for Extension of Time to September 19, 2008 to File Reply (PSSA, 1) (Entered: 09/12/2008)
105 Assented to MOTION to Take Deposition from Dr. Levine, Dr. Zakai, Diane McLaughlin by Sandy J. Battista.(Smith−Lee, Emily) (Entered: 09/15/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 105 Plaintiff's Motion to Take Deposition from from Dr. Levine, Dr. Zakai, Diane McLaughlin. (PSSA, 1) (Entered: 09/16/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered: PROCEDURAL ORDER: By September 22, 2008, Plaintiff shall file a brief "Exhibit List" with respect to exhibits A−Y attached to the Memorandum in Support of the Motion for Preliminary Injunction (Docket No. 97). The Exhibit List shall include a chart containing: (1) the exhibit number; (2) a brief description of the exhibit (e.g., Report of [Name]; Deposition of [Name]; (3) the date of the exhibit; (4) the page number in the brief in which the exhibit is cited; and (5) if citing to witness testimony in the brief, identify the name of the witness and the page and line number of the exhibit. Plaintiff shall provide an Exhibit List with respect to any Reply brief filed. It is further ordered that the Defendants shall provide the same type of Exhibit List with respect to the attachments included in their Opposition (Docket No. 103), also by September 22, 2008.(PSSA, 1) (Entered: 09/18/2008)
106 REPLY to Response to 96 MOTION for Preliminary Injunction filed by Sandy J. Battista. (Attachments: # 1 Exhibit A to G, # 2 Exhibit H to L, # 3 Exhibit M to O, # 4 Exhibit P to T)(Minahan, Neal) (Entered: 09/19/2008)
107 Amended Memorandum in Support of Plaintiff's Renewed Motion For Preliminary Injunction by Sandy J. Battista. (Attachments: # 1 Chart of Exhibits and Exhibits A−E, # 2 Exhibits F−I, # 3 Exhibits K−P, # 4 Exhibits Q−Y)(Smith−Lee, Emily) Modified text on 9/23/2008 (Seelye, Terri). (Entered: 09/22/2008)
108 EXHIBIT Chart re 106 in support of plaintiff's reply to defendant's opposition to plaintiff's motion for preliminary injunction by Sandy J. Battista. (Smith−Lee, Emily) Modified text on 9/23/2008 (Seelye, Terri). (Entered: 09/22/2008)

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 13 of 28

09/22/2008 09/22/2008
10/06/2008 10/07/2008
10/07/2008 10/15/2008
10/27/2008 10/31/2008 10/31/2008 11/04/2008

109 Exhibit List to Defendants' Opposition to Plaintiff's Renewed Motion for Preliminary Injunction by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (McFarland, Richard) Related Document 103 . Modified text & created link on 9/23/2008 (Seelye, Terri). (Entered: 09/22/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered: Plaintiff's Motion to file an Amended Memorandum in Support of Plaintiff's Renewed Motion for Preliminary Injunction (Docket No. 107) is ALLOWED. Although Plaintiff does not indicate how the Amended Memorandum alters the original, it appears that, apart from pagination and substitution of Exhibit I, the Amended Memorandum (also Docket No. 107) is substantively identical to the original (Docket No. 97). Therefore the Court presumes this Amended Memorandum and attached exhibits are filed solely for purposes of completeness of the record, and not as additional or supplemental arguments not previously asserted in the original memorandum or in Plaintiff's Reply (Docket No. 106). Accordingly, the Defendants need not file a response to the Amended Memorandum, and the Court will consider the Defendants' Opposition (Docket No. 103) as the response to the Amended Memorandum (Docket No. 107). (PSSA, 1) (Entered: 09/22/2008)
110 MOTION for Leave to File Sur−reply to Plaintiff's Reply to Defendants' Opposition to Plaintiff's Renewed Motion for Preliminary Injunction by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (Attachments: # 1 Supplement, # 2 Exhibit)(McFarland, Richard) (Entered: 10/06/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 110 MOTION for Leave to File Sur−reply to Plaintiff's Reply to Defendants' Opposition to Plaintiff's Renewed Motion for Preliminary Injunction by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin; 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. (Lovett, Jarrett) (Entered: 10/07/2008)
111 SUR−REPLY to Motion re 96 MOTION for Preliminary Injunction filed by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 10/07/2008)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Motion Hearing held on 10/15/2008 re 96 MOTION for Preliminary Injunction filed by Sandy J. Battista: Plaintiff's Motion for a Preliminary Injunction (#96) is allowed to the extent that the Court will enforce the DOC's GID treatment plan by court order. The parties are directed to confer and propose, if possible, a joint plan for the enforcement of a GID treatment plan which includes providing this Court with monthly supervision reports signed by Dr. Zakai and Dr. Levine. The parties shall submit a proposed form of Order for GID treatment by October 31, 2008. The Court makes findings of deliberate indifference and likelihood of success on the merits as relfected in the stenographer's notes and stated on the record in open court. Notwithstanding this finding, hormone therapy will not be ordered at this time. By 11/14/08, plainitiff shall make the Rule 26 expert disclosures and expert discovery may be conducted. A further scheduling conference will be set to schedule a trial date. (Court Reporter: Diane Molas)(Attorneys present: Smith−Lee, McSherry, Minahan, Sheng, McFarland) (Lovett, Jarrett) (Entered: 10/15/2008)
Set/Reset Deadlines: Plainitiff shall make Rule 26 expert disclosures by 11/14/2008. (Lovett, Jarrett) (Entered: 10/27/2008)
112 MOTION Motion for Entry of Proposed Order on Motion for Prelminary Injunction by Sandy J. Battista. (Attachments: # 1 Exhibit to Motion for Entry of Proposed Order)(Smith−Lee, Emily) (Entered: 10/31/2008)
113 Response by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin to Order of October 15, 2008. (Attachments: # 1 Supplement)(McFarland, Richard) (Entered: 10/31/2008)
114 Transcript of Motion Hearing held on May 14, 2008, before Judge Woodlock. Court Reporter: Diane Molas at dmolas1@aol.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 14 of 28

11/04/2008 11/10/2008 11/14/2008
11/17/2008 12/09/2008
12/09/2008 12/18/2008 12/23/2008 12/23/2008 01/09/2009 01/27/2009 01/29/2009 02/06/2009

after it is released. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/2/2008. Release of Transcript Restriction set for 1/30/2009. (Scalfani, Deborah) (Entered: 11/04/2008)
115 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: 11/04/2008)
116 MOTION for Leave to File Reply to Defendants' Response to October 15, 2008 Court Order by Sandy J. Battista. (Attachments: # 1 Exhibit Proposed Reply, # 2 Exhibit)(Smith−Lee, Emily) (Entered: 11/10/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 116 Motion for Leave to File Reply to Defendants' Response to October 15, 2008 Court Order; 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. (PSSA, 1) Modified text on 11/17/2008 (Seelye, Terri). (Entered: 11/14/2008)
117 REPLY to Response to 112 MOTION Motion for Entry of Proposed Order on Motion for Prelminary Injunction (leave to file granted 11/14/08) filed by Sandy J. Battista. (Attachments: # 1 Exhibit)(Smith−Lee, Emily) (Entered: 11/17/2008)
119 Judge Douglas P. Woodlock: MEMORANDUM (outlining resolution of certain issues in connection with the Plaintiff's Motion for Preliminary Injunction). A separate Preliminary Injunction Order will be issued in conjunction with this Memorandum. (PSSA, 1)[Remark: Motion for Entry of Proposed Preliminary Injunction Order (#112) terminated by this Memorandum]. (Entered: 12/09/2008)
120 Judge Douglas P. Woodlock: PRELIMINARY INJUNCTION ORDER entered. [Clinician's Monthly reports beginning January 30, 2009; and six−month report due June 30, 2009]. (PSSA, 1)[Remark: See Memorandum (#119) issued along with this Order.] (Entered: 12/09/2008)
121 MOTION for Reconsideration re 120 Order by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin.(McFarland, Richard) (Entered: 12/18/2008)
122 Assented to MOTION for Extension of Time to 1/9/2009 to File Response/Reply as to 121 MOTION for Reconsideration re 120 Order by Sandy J. Battista.(Minahan, Neal) (Entered: 12/23/2008)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 122 Assented to MOTION for Extension of Time to 1/9/2009 to File Response/Reply as to 121 MOTION for Reconsideration re 120 Order by Sandy J. Battista. (Lovett, Jarrett) (Entered: 12/23/2008)
123 Opposition re 121 MOTION for Reconsideration re 120 Order filed by Sandy J. Battista. (Attachments: # 1 Exhibit)(Smith−Lee, Emily) (Entered: 01/09/2009)
ELECTRONIC NOTICE of Hearing : Status Conference set for 2/6/2009 10:00 AM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 01/27/2009)
124 Sealed Document: Monthly report dated 1/27/09. (Seelye, Terri) (Entered: 01/29/2009)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status Conference held on 2/6/2009: After a hearing 121 MOTION for Reconsideration is ALLOWED only to the extent that the preliminary injunction order will be modified to state that the records may be released to the DOC without court order if there is an imminent threat of harm to Battista or others. By 12:00 noon on February 9, 2009, the parties shall submit an agreed−upon form of Order which will serve as an amendment to the preliminary injunction order 120 . With respect to the monthly supervision report of January 2009 submitted by the clinicians, the Court expresses concerns that good clinical advice be rendered absent consideration of security concerns. The Court will issue a Memorandum expressing these concerns,

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02/06/2009 02/09/2009 02/09/2009 02/10/2009
02/10/2009 02/24/2009
02/24/2009 03/03/2009 03/13/2009 03/30/2009 04/29/2009 05/04/2009 05/26/2009 05/29/2009

which the DOC will deliver to the clinicians. Scheduling addressed: the parties may do limited discovery after the six months of therapy. Jury Trial set for August 3, 2009 on a 9am−1pm schedule. An Order setting civil trial will issue. (Court Reporter: Brenda Hancock)(Attorneys present: McSherry & Minahan for the pltff; McFarland for the deft's) (Lovett, Jarrett) (Entered: 02/06/2009)
125 Judge Douglas P. Woodlock: ORDER entered. ORDER SETTING CIVIL JURY TRIAL: Pretrial Conference set for 7/14/2009 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. Jury Trial set for 8/3/2009 09:00 AM in Courtroom 1 before Judge Douglas P. Woodlock.(Lovett, Jarrett) (Entered: 02/06/2009)
126 Letter/request (non−motion) from Plaintiff proposing supplementary language to Preliminary Injunction Order. (Attachments: # 1 Text of Proposed Order Supplement to Preliminary Injunction Order)(McSherry, Dana) (Entered: 02/09/2009)
127 Response by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin to Order of February 6, 2009 Regarding Defendants' Motion for Reconsideration of Preliminary Injunction Order. (Attachments: # 1 Affidavit)(McFarland, Richard) (Entered: 02/09/2009)
128 Judge Douglas P. Woodlock: ORDER entered. MEMORANDUM AND ORDER: Apart from paragraph 8 of the Preliminary Injunction Order, all other provisions contained in the initial Order (Docket No. 120) will remain in full force and effect. Only paragraph 8 of the Preliminary Injunction Order is modified. [See Amended Preliminary Injunction Order] [Regarding the clinicians' report of January 27, 2009: Summary of Text: "The clinicians should carefully consider whether they are operating under some sort of anticipatory influence by the defendants to address their task in a less than independent fashion. If they are, they are not properly approaching their responsibilities. The parties are directed to provide a copy of this Memorandum to the clinicians responsible for the status reports ordered by the Preliminary Injunction Order."].(PSSA, 1) (Entered: 02/10/2009)
129 Judge Douglas P. Woodlock: ORDER entered: AMENDED PRELIMINARY INJUNCTION ORDER.(PSSA, 1)[Remark: See Memorandum and Order; only paragraph 8 amended]. (Entered: 02/10/2009)
130 Transcript of Status Conference and Motion Hearing held on February 6, 2009, before Judge Woodlock. Court Reporter: Brenda K. Hancock at 617/439−3214. 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 3/16/2009. Redacted Transcript Deadline set for 3/24/2009. Release of Transcript Restriction set for 5/22/2009. (Scalfani, Deborah) (Entered: 02/24/2009)
131 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: 02/24/2009)
132 Sealed Document: Monthly report dated 2/27/09. (Seelye, Terri) (Entered: 03/03/2009)
133 Assented to MOTION to Continue Jury trial to August 24, 2009 by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin.(McFarland, Richard) (Entered: 03/13/2009)
134 Sealed Document: Monthly report dated 3/30/09. (Seelye, Terri) (Entered: 03/31/2009)
135 Sealed Document: Monthly report dated 4/17/09. (Seelye, Terri) (Entered: 04/29/2009)
ELECTRONIC NOTICE of Hearing : Status Conference set for 5/29/2009 02:00 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 05/04/2009)
136 Sealed Document: Monthly report dated 5/15/09. (Seelye, Terri) (Entered: 05/27/2009)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status Conference held on 5/29/2009: Parties discuss possibility of a summary judgment motion. The clinicians' formal recommendation is due June 30, 2009. By July 10, 2009 the parties are to submit a Joint Proposed Scheduling Order (re:

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06/01/2009 06/11/2009 06/25/2009 06/29/2009 06/30/2009
06/30/2009
06/30/2009 07/02/2009 07/10/2009 07/13/2009

prospective relief, an endocrinologist or other doctors' appointments, prompt completion of a security review, etc.). A further conference will be set for September 2009. 133 Motion to Continue Trial is ALLOWED; a new trial date will be set. The Court wants ongoing reports from the clinicians on a monthly basis until the issues in this matter are finalized. The parties shall submit a joint form of Order for the continued clinicians' reports if one is needed. (Court Reporter: Diane Molas)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland & Kennedy for the deft's) (Lovett, Jarrett) (Entered: 05/29/2009)
ELECTRONIC NOTICE Cancelling Hearing: The Pretrial Conference set for 7/14/2009 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock is hereby canceled in light of the directions provided at the hearing held on 5/29/09. (Lovett, Jarrett) (Entered: 06/01/2009)
137 Letter/request (non−motion) from Department of Correction. (Attachments: # 1 Affidavit, # 2 Affidavit)(McFarland, Richard) (Entered: 06/11/2009)
138 Response by Sandy J. Battista to 137 Letter/request (non−motion). (McSherry, Dana) (Entered: 06/25/2009)
ELECTRONIC NOTICE of Hearing : Status Conference set for 6/30/2009 10:00 AM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 06/29/2009)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status Conference held on 6/30/2009 re 137 DOC's letter/request seeking medical/mental health records of Plaintiff: Plaintiff's counsel in the MGL 123A, § 9 hearing in state court appears at the hearing to oppose the request, contending the issue of disclosure of records should be resolved by the state Superior Court (unified session) judge rather than this Court. Issues of privilege and relevance to the § 9 hearing, including whether the Commonwealth and/or the CAB should have access to those records may be decided by the state court. All parties agree to this course of action, but issue whether Plaintiff has affirmatively raised the GID issues in § 9 matter would be considered by this Court. The Court expresses concern that Plaintiff's therapy not be burdened by the § 9 proceedings, and that the parties comply with the Amended Preliminary Injunction Order previously entered by this Court. Material obtained must be used solely for § 9 procedures. In light of this, the DOC's request for medical and mental health records is denied without prejudice to pursuit in the state Superior Court. A separate Order addressing the Court's concerns shall enter. (Court Reporter: Diane Molas)(Attorneys present: Minahan, Jr.; McSherry, & CPCS atty Beard−Bader for the pltff; McFarland, Kennedy, & DOC atty Mary Murry for the deft's) (Lovett, Jarrett) (Entered: 06/30/2009)
139 Transcript of Motion Hearing held on October 15, 2008, before Judge Woodlock. Court Reporter: Diane M. Molas at 267/977−2909. 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 7/20/2009. Redacted Transcript Deadline set for 7/28/2009. Release of Transcript Restriction set for 9/25/2009. (Scalfani, Deborah) (Entered: 06/30/2009)
140 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: 06/30/2009)
141 Sealed Document. Monthly & Six Month Reports dated 6/30/09 (Attachments: # 1 Exhibit A, # 2 Exhibit B) (York, Steve) (Entered: 07/02/2009)
142 Recommendations for Scheduling Order filed Jointly. (Minahan, Neal) (Entered: 07/10/2009)
Judge Douglas P. Woodlock: Electronic ORDER entered: The Joint Proposed Schedule (Docket No. 142) is ADOPTED. It is hereby Ordered that: An endocrine consult shall be scheduled forthwith but no later than July 28, 2009, and a recommendation or prescription regarding hormone therapy shall be made by no later than August 14, 2009; a copy shall be provided to the DOC's medical provider upon receipt, and filed with this Court. Upon receipt of the endocrinologist's

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 17 of 28

07/17/2009
08/05/2009 08/14/2009 09/01/2009 09/02/2009 10/07/2009 10/26/2009
11/02/2009 11/02/2009
11/04/2009 11/05/2009 11/13/2009
11/17/2009 11/19/2009 11/24/2009

recommendation or prescription for hormone therapy, the defendants shall, with deliberate speed, conduct a security review and draft a recommendation relating to the initiation of hormones for Battista. The security review shall be submitted to the Court and to Battista's counsel no later than 3 weeks after the endocrinologist's recommendation or prescription for hormone therapy. Additional discovery (as outlined in the joint proposal) shall be completed by October 2, 2009. Trial will be scheduled within 2 months after the completion of discovery. (PSSA, 1) (Entered: 07/13/2009)
143 NOTICE by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin of Order of Massachusetts Superior Court on DOC Access to Planitiff's Records (Attachments: # 1 Appendix)(McFarland, Richard) (Entered: 07/17/2009)
144 Sealed Document. Monthly Report Dated July 20, 2009 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 08/05/2009)
145 NOTICE by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin of Endocrinology Consultation Report (Attachments: # 1 EndocrinologyReport)(McFarland, Richard) (Entered: 08/14/2009)
146 Sealed Document. Monthly Report Dated August 23, 2009 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 09/01/2009)
147 NOTICE by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin of Submission of Court−Ordered Report (Attachments: # 1 Safety & Security Review)(McFarland, Richard) (Entered: 09/02/2009)
148 Sealed Document. Monthly Report Dated September 23, 2009 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 10/07/2009)
ELECTRONIC NOTICE of Hearing : Status Conference set for 11/24/2009 03:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. By 11/17/09, the parties shall file a JOINT STATUS REPORT indicating the current status of the case, including discovery proceedings, pending or contemplated motions, proposed dates for pretrial conferences and for trial, and any other matters which should be addressed at the conference. (Lovett, Jarrett) (Entered: 10/26/2009)
149 MOTION to Compel Production of Documents and For Sanctions by Sandy J. Battista.(Minahan, Neal) (Entered: 11/02/2009)
150 MEMORANDUM in Support re 149 MOTION to Compel Production of Documents and For Sanctions filed by Sandy J. Battista. (Attachments: # 1 Exhibit A−G, # 2 Exhibit H−Q, # 3 Exhibit R−V, # 4 Exhibit W−X, # 5 Exhibit Y−AA, # 6 Exhibit BB−DD, # 7 Exhibit EE Part 1, # 8 Exhibit EE Part 2, # 9 Exhibit FF Part 1, # 10 Exhibit FF Part 2, # 11 Exhibit FF Part 3, # 12 Exhibit FF Part 4, # 13 Exhibit GG−HH)(Minahan, Neal) (Entered: 11/02/2009)
151 Sealed Document. Monthly Report Dated October 19, 2009. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 11/04/2009)
152 General Order 09−1, dated January 6, 2009 regarding the E−Government Act and Personal Identifiers entered. (York, Steve) (Entered: 11/05/2009)
153 Opposition re 149 MOTION to Compel Production of Documents and For Sanctions filed by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 11/13/2009)
154 STATUS REPORT Filed Jointly by Sandy J. Battista. (McSherry, Dana) (Entered: 11/17/2009)
155 NOTICE by Terre K. Marshall, Harold W. Clarke, Kathleen M. Dennehy, Robert Murphy, Susan J Martin of Assignment of Dr. Diener to Co−Lead Monthly Supervision of GID Therapists (McFarland, Richard) (Entered: 11/19/2009)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status Conference/Motion Hearing Held re: 149 Motion to Compel Production of Documents: The Court will review in camera the disputed materials (re: the first draft

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11/30/2009 11/30/2009 12/01/2009 12/04/2009
12/04/2009
12/07/2009 12/08/2009 12/11/2009 12/30/2009 02/02/2010 02/23/2010 03/01/2010

of the security review, DOC e−mails, and drafts of the GID policy and related materials). DOC counsel shall provide the 7 documents to the Court by 11/25/09, other materials by 12/1/09. DOC counsel shall also disclose to Plaintiff's counsel all documents as to the underlying facts referenced in Superintendent Murphy's Affidavit attached to the DOC's opposition. Plaintiff's counsel shall report by 12/11/09 whether Plaintiff wishes to voluntarily dismiss the deliberate indifference claims and proceed only with claims for prospective relief to be tried in a bench trial and not a jury trial. Plaintiff's counsel shall also report whether Superintendent Murphy's deposition is to be taken; if so, the Court will require costs to be paid by the DOC. Parties report no trial date has been set on the Section 9 hearing in state court. This case is likely to be tried in April 2010, and the Court would likely merge any renewed preliminary injunction with a trial on the merits in light of the schedule. A firm date shall be set at a later time. (Court Reporter: Brenda Hancock)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland for the deft's) (Lovett, Jarrett) (Entered: 11/24/2009)
156 Defendants' Sealed Motion for leave to file Confidential Attorney−Client Communications. by Kathleen M. Dennehy. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 11/30/2009)
157 Sealed Document. Monthly Report Dated November 24, 2009. (Attachments: # 1 Exhibit) (York, Steve) (Entered: 11/30/2009)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 156 Sealed Motion (PSSA, 1) (Entered: 12/01/2009)
158 Transcript of Status Conference/Motion Hearing held on November 24, 2009, before Judge Woodlock. Court Reporter: Brenda K. Hancock at 617/439−3214. 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 12/25/2009. Redacted Transcript Deadline set for 1/4/2010. Release of Transcript Restriction set for 3/4/2010. (Scalfani, Deborah) (Entered: 12/04/2009)
159 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: 12/04/2009)
160 Sealed Motion for leave to file Confidential Documents. by Kathleen M. Dennehy. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 12/07/2009)
Judge Douglas P. Woodlock: Electronic ORDER entered granting 160 Sealed Motion for leave to file Confidential Documents, filed by Kathleen M. Dennehy. (PSSA, 1) (Entered: 12/08/2009)
161 Voluntary Dismissal as to Count VIII by Sandy J. Battista (McSherry, Dana) Modified on 12/15/2009 to correct title (York, Steve). (Entered: 12/11/2009)
164 Sealed Document. Monthly Report Dated December 21, 2009. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 12/30/2009)
165 Sealed Document. Monthly Report Dated January 17, 2010. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 02/02/2010)
ELECTRONIC NOTICE of Hearing : Further Status/Scheduling Conference set for 3/1/2010 11:30 AM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 02/23/2010)
Electronic Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Further Status/Scheduling Conference held on 3/1/2010: re: PRETRIAL MATTERS: (1) The Court will not compel disclosure of documents by Defendants as they are suffused with attorney−client privileged materials; (2) Defendants shall file a copy of the published GID policy for the record forthwith; (3) By March 15, 2010, Defendants shall file a privilege log that contains a chronology of the development of the GID program. The log need not contain the substance but only the dates upon which drafts were circulated by the responsible persons; (4) By March 15, 2010, the Defendants shall provide to Plaintiff the figures/statistics of sexual abuse at other prison facilities; (5) the parties intend to conduct additional discovery; (6) Trial of this action shall

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 19 of 28

03/01/2010
03/01/2010
03/03/2010 04/02/2010 04/30/2010 05/17/2010
05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010
05/17/2010 05/17/2010 05/17/2010 05/28/2010 06/01/2010

proceed notwithstanding Plaintiffs SDP hearing has not been scheduled yet; and (7) Superintendent Murphy is stepping down from the MTC to take over the state hospital, and Corsini (currently at BSCC) will be stepping into the MTC as of 3/15/10, however, defense counsel reports that no changes in policies are anticipated. Re: TRIAL MATTERS: (1) Plaintiff withdraws her damages claims so a jury trial is no longer necessary; (2) A Non−Jury Trial is set for June 14, 2010 and is expected to last about one week, although trial days may be sporadic depending on the Courts trial schedule; (3) the clerk shall issue the standard Non−Jury Order providing for submission of Affidavits as direct testimony of witnesses, with live cross−examination, and marked−up Findings of Facts and Conclusions of Law. (Court Reporter: Brenda Hancock)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland & Kennedy for the deft's) (Lovett, Jarrett) (Entered: 03/01/2010)
166 Judge Douglas P. Woodlock: ORDER entered. ORDER REGULATING NON−JURY CIVIL TRIAL: Bench Trial set for 6/14/2010 09:00 AM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 03/01/2010)
167 NOTICE by Harold W. Clarke of Massachusetrts Department of Correction's Policy on the "Identification, Treatment and Correctional Management of Inmates Diagnosed with Gender Identity Disorders (GID)" (Attachments: # 1 Appendix)(McFarland, Richard) (Entered: 03/01/2010)
168 Sealed Document. Monthly Report Dated February 23, 2010. (Attachments: # 1 Exhibit) (York, Steve) (Entered: 03/03/2010)
169 Sealed Document. Monthly Report Dated March 21, 2010. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 04/02/2010)
170 Sealed Document. Monthly Report Dated April 18, 2010. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 04/30/2010)
171 Plaintiff's Prospective Witness List and Affidavits of Direct Testimony by Sandy J. Battista. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McSherry, Dana) (Entered: 05/17/2010)
172 Plaintiff's Exhibit List by Sandy J. Battista.. (Attachments: # 1 Exhibit 1)(McSherry, Dana) (Entered: 05/17/2010)
173 Plaintiff's Exhibit List of Marked Items by Sandy J. Battista.. (Attachments: # 1 Exhibit 1)(McSherry, Dana) (Entered: 05/17/2010)
174 Plaintiff's Deposition Witness List To Be Used At Trial by Sandy J. Battista. (Attachments: # 1 Exhibit 1)(McSherry, Dana) (Entered: 05/17/2010)
175 Plaintiff's Objections to Defendants' Marked Items Exhibit List by Sandy J. Battista.. (Attachments: # 1 Exhibit 1)(McSherry, Dana) (Entered: 05/17/2010)
176 Witness List by Harold W. Clarke. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit)(McFarland, Richard) (Entered: 05/17/2010)
177 Proposed Document(s) submitted by Harold W. Clarke. Document received: Defendant'sMarked Response to Plaintiff's Proposed Findings of Fact and Conclusions of Law. (McFarland, Richard) (Entered: 05/17/2010)
178 Proposed Findings of Fact by Harold W. Clarke. (McFarland, Richard) (Entered: 05/17/2010)
179 Marked Exhibit List by Harold W. Clarke.. (McFarland, Richard) (Entered: 05/17/2010)
180 Objections to Plaintiff's Marked Exhibit List by Harold W. Clarke.. (McFarland, Richard) (Entered: 05/17/2010)
181 Sealed Document. Monthly Report Dated May 26, 2010 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 05/28/2010)
182 TRIAL BRIEF by Sandy J. Battista. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McSherry, Dana) (Entered: 06/01/2010)

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06/01/2010 06/01/2010 06/01/2010 06/01/2010 06/01/2010 06/01/2010 06/07/2010 06/07/2010 06/08/2010 06/11/2010 06/14/2010
06/14/2010

183 Marked Response by Sandy J. Battista to Defendant's [Proposed] Substitute Findings of Fact and Conclusions of Law. (Attachments: # 1 Exhibit 1)(McSherry, Dana) (Entered: 06/01/2010)
184 PRETRIAL MEMORANDUM by Harold W. Clarke. (McFarland, Richard) (Entered: 06/01/2010)
185 NOTICE by Harold W. Clarke of Intent to Cross−Examine (McFarland, Richard) (Entered: 06/01/2010)
186 MOTION in Limine by Harold W. Clarke.(McFarland, Richard) (Entered: 06/01/2010)
187 MOTION Leave to Present Direct Testimony of Robert Murphy by Oral Examination by Harold W. Clarke.(McFarland, Richard) (Entered: 06/01/2010)
188 MOTION Present Plaintiff's Direct Testimony by Oral Examination by Sandy J. Battista.(McSherry, Dana) (Entered: 06/01/2010)
190 MOTION in Limine Regarding Defendants' Objections to the Relevance of Events Prior to the 2009 Security Review by Sandy J. Battista.(McSherry, Dana) (Entered: 06/07/2010)
191 MOTION in Limine to preclude testimony from Luis Spencer, Paul DiPaolo & Shiela Smith by Sandy J. Battista.(Minahan, Neal) (Entered: 06/07/2010)
192 Writ of Habeas Corpus ad Prosequendum Issued for 6/14/10. (Lovett, Jarrett) (Entered: 06/08/2010)
193 RESPONSE to Motion re 191 MOTION in Limine to preclude testimony from Luis Spencer, Paul DiPaolo & Shiela Smith filed by Harold W. Clarke. (McFarland, Richard) (Entered: 06/11/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Bench Trial DAY 1 held on 6/14/2010. Pretrial matters addressed: (1) Court makes rulings on motions: ## 186 , 187 , 188 , 190 , 191 all DENIED; (2) plaintiff still asserts an equal protection claim but the focus of this case is on the deliberate indifference claim for equitable relief; (3) case is now only against defendants Commissioner Clarke and MTC Superintendent Corsini (as the successor to Robert Murphy), all other named defendants are out of this case; (4) parties are to provide portions of deposition testimony to be received; (5) parties final submissions shall contain citations to the record as to every proposition asserted; (6) Court deems plaintiffs factual findings that were not contested to be conceded; (7) defense counsel to provide Court with copies of exhibits. Plaintiffs case−in−chief commences (no opening statements necessary): Affidavit of Sandy J. Battista received (for direct testimony); cross−examination of Battista conducted by Attorney McFarland; Fifth Amendment privilege asserted by Battista as to funds at issue in the litigation pending before Judge Gertner. Re−direct by Attorney McSherry; Plaintiff offers the following: Affidavit of Dr. Brown (received as direct, no live cross−examination); portions of deposition of Kathleen Dennehy received, portion of depositions of Terre Marshall (taken on 6/27/08 and 10/09)); 30(b)(6) deposition of Terre Marshall (7/9/08). Apart from cross−examination of Robert Murphy, plaintiffs case−in−chief is completed (plaintiff will not call Terre Marshall or Susan Martin); plaintiff intends to cross−examine defendants witnesses (Spencer, DiPaulo, Smith). Re: Exhibits and Transcripts: Def. Exh. M not admitted; Def. Exh. 502 received; Def Exh. 503 received; Def. Exhs. II (marked as 504) and 501 received. Court admits the agreed−upon exhibits. Re: Exh. A−QQQ Court overrules objections based on relevance and undue prejudice and instructs parties to review hearsay objections to decide whether to continue to press them. Defendant to submit unredacted version of exhibits for review by Court, and redacted version for public (redacting names of MTC residents). Defendants will have to redact transcript to delete names of MTC residents mentioned (the burden will not be on the court reporter) Absent a motion to redact, the testimony in open court remains public. After parties submit revised findings of facts/conclusions of law (with references to record), final arguments will be set. (Court Reporter: Debra Joyce at 617−737−4410)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland & Kennedy for the deft's) (Lovett, Jarrett) (Entered: 06/14/2010)
194 Depositions from UMass Correctional Health Program. (Attachments: # 1 Deposition, # 2 Deposition)(York, Steve) (Entered: 06/14/2010)

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 21 of 28

06/15/2010 06/16/2010 06/17/2010
06/23/2010

ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Bench Trial DAY 2 held on 6/15/2010. Defendants' case−in−chief commences; Affidavit of Superintendent Robert Murphy admitted (as direct); cross−examination by Attorney Minehan; re−direct by Attorney Kennedy. Trial to continue 6/16/10 at 9am. Court instructs defendants to provide marked and agreed upon exhibits by 6/16, plaintiff to provide 8x11 of chaulks. Court will authorize plaintiff's counsel to obtain an expedited transcript to be paid for by the Court. Parties to think about a proposed schedule for closing arguments. Exhibits: Def's Exh. 502 admitted; P's Exh. WWWW received as Exh. 55; P's Exhs. 8 and 15 admitted; P's Exhs. A and B (chaulks of MTC) received as chaulks. (Court Reporter: Debra Joyce at 617−737−4410)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland & Kennedy for the deft's) (Lovett, Jarrett) (Entered: 06/15/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Bench Trial DAY 3 held on 6/16/2010. Defendants' redirect of Superintendent Robert Murphy continued; re−cross conducted; Court inquires of Murphy; Defendant offers Affidavit of Paul DiPaolo, received. Cross−examination conducted by Attorney Minehan; redirect by Attorney McFarland; Court inquires of DiPaolo. witness excused. Trial to continue 6/17/10 with Smith and Spencer as witnesses. Exhibits: Exh. 14 and 15 received; Exh. E (marked as #505) admitted with qualifications of its reliability; Exh. F (marked as #506) received on same basis, as is Exh. H (marked as #507); Exh. I (marked as #508) received as to notice to Murphy; Exh. L (marked as #509) received on same basis, as is Exh. M (marked as #510). Defs' Exh. 511, 512, 513, 514, P's Exh. 29, Exh. 54, 33 admitted. Exh. 53 and discussed. (Court Reporter: Debra Joyce at 617−737−4410)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland & Kennedy for the deft's) (Lovett, Jarrett) (Entered: 06/16/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Bench Trial DAY 4 held on 6/17/2010. Defendants offer Affidavit of Luis S. Spencer, admitted; cross−exam by Attorney McSherry; redirect by Attorney Kennedy; re−cross. Court inquires of witness. Affidavit of Sheila Smith admitted; cross−exam by Attorney McSherry, redirect by Attorney McFarland. Court inquires of witness. Defendant rests. Plaintiff rests except for the introduction of exhibits. Exhibits: Exh. BBBBB (marked at #56) admitted; Ps Exh. 1−54 admitted; Ds Exh. 500−504 admitted (uncontested exhibits are admitted). After hearing re: disputed exhibits, Ps disputed exhibits (K, L, M and others of this ilk) are admitted over hearsay objection for purposes of notice to defendants and not as to the truth of the underlying incidents recounted therein, as to which Court will not resolve. Similarly, Court gives view of the admission of defendants disputed exhibits and parties agree on these. Re: Scheduling and Organization of submissions by the parties: (1) the Court wants each side to submit two (2) sets of one comprehensive, marked−up Findings of Fact and Conclusions of Law (FOF/COL) that incorporates prior submissions and supplements based on trial evidence, with citations to the record for every proposition. The parties shall exchange the proposed FOF/COL so that it can be underlined as to new findings in dispute, or withdraw as to earlier disputed findings that are no longer in dispute; Final versions by no later than July 23, 2010; (2) Along with the FOF/COL, each side shall submit two (2) sets of binders that include, with respect to each witness, copies of the Affidavit, Exhibits, and transcript and deposition excerpts pertaining to that witness. The parties shall also submit two (2) sets of binders of deposition transcripts. The record may be submitted any time, but no later than July 23, 2010. By July 23, 2010, the Plaintiff shall submit a proposed form of Injunction; Defendants Response to this is due July 30, 2010. A hearing on final arguments will be held on August 3, 2010 at 10:00 a.m. Re: Transcript: Plaintiff will front the costs for an expedited transcript, to be prepared by the court reporter (Debra Joyce) and sent to counsel by June 23, 2010. The Court will entertain an application by Plaintiff for reimbursement from the attorney admissions fund. (Court Reporter: Debra Joyce at 617−737−4410.)(Attorneys present: Minahan, Jr. & McSherry for the pltff; McFarland & Kennedy for the deft's) (Lovett, Jarrett) (Entered: 06/17/2010)
195 Transcript of Bench Trial Day One held on June 14, 2010, before Judge Douglas P. Woodlock. 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: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/14/2010. Redacted Transcript Deadline set for 7/26/2010. Release of

Case: 1:05-cv-11456 As of: 03/22/2018 11:47 PM EDT 22 of 28

06/23/2010
06/23/2010
06/23/2010
06/23/2010 07/01/2010 07/20/2010 07/23/2010 07/23/2010 07/23/2010 07/23/2010 07/28/2010 07/30/2010 08/03/2010

Transcript Restriction set for 9/21/2010. (Scalfani, Deborah) (Entered: 06/23/2010)
196 Transcript of Bench Trial Day Two held on June 15, 2010, before Judge Douglas P. Woodlock. 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: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/14/2010. Redacted Transcript Deadline set for 7/26/2010. Release of Transcript Restriction set for 9/21/2010. (Scalfani, Deborah) (Entered: 06/23/2010)
197 Transcript of Bench Trial Day Three held on June 16, 2010, before Judge Douglas P. Woodlock. 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: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/14/2010. Redacted Transcript Deadline set for 7/26/2010. Release of Transcript Restriction set for 9/21/2010. (Scalfani, Deborah) (Main Document 197 replaced on 6/23/2010) (Scalfani, Deborah). (Entered: 06/23/2010)
198 Transcript of Bench Trial Day Four held on June 17, 2010, before Judge Douglas P. Woodlock. 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: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/14/2010. Redacted Transcript Deadline set for 7/26/2010. Release of Transcript Restriction set for 9/21/2010. (Scalfani, Deborah) (Entered: 06/23/2010)
199 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: 06/23/2010)
200 Sealed Document. Monthly Report Dated June 21, 2010 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 07/01/2010)
201 NOTICE by Sandy J. Battista of Submission of Trial Record (McSherry, Dana) (Entered: 07/20/2010)
202 NOTICE by Sandy J. Battista of Submission of Proposed Permanent Injunction Order (Attachments: # 1 Exhibit A)(McSherry, Dana) (Entered: 07/23/2010)
203 Proposed Findings of Fact by Sandy J. Battista. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 07/23/2010)
204 NOTICE by Harold W. Clarke, Michael Corsini of Submission of Trial Record (McFarland, Richard) (Entered: 07/23/2010)
205 Proposed Findings of Fact by Harold W. Clarke, Michael Corsini. (McFarland, Richard) (Entered: 07/23/2010)
206 Writ of Habeas Corpus ad Prosequendum Issued for 8/3/10. (Lovett, Jarrett) (Entered: 07/28/2010)
207 NOTICE by Harold W. Clarke, Michael Corsini re 202 Notice (Other) of Defendants' [Proposed] Permanent Injunction Order (Attachments: # 1 Text of Proposed Order, # 2 Appendix)(McFarland, Richard) (Entered: 07/30/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Bench Trial DAY 5 held and completed on 8/3/2010. Final Arguments. The Court addresses the written proposals for Permanent Injunction filed by each party pursuant to the prior directives. The Court rejects these proposals, opting instead to enter a modified Preliminary Injunction Order incorporating paragraph 3 of the Defendants' proposal, and providing for the adminstration of hormone therapy to Battista within 7 business days from the date of the Order. Court makes findings on the record as to the reasons for amending the preliminary injunction to include hormone treatment at this time, giving the parties additional time to explore alternatives for placement, and examine Battista's compliance with MTC rules and regulations after hormone treatment is administered. The Court will hold further status conferences or hearings as necessary, and the parties shall file a Status Report. The report of the clinicians' shall continue to be filed; however, the parties shall file a joint form of Order by 8/10/10 with proposals for modification of the content of the clinicians'

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08/03/2010 08/05/2010 08/06/2010
08/06/2010 08/06/2010 08/09/2010 08/09/2010 08/10/2010 08/10/2010 08/11/2010 08/12/2010 08/13/2010
08/13/2010

report (e.g., how hormone treatment is progressing, what effects have occurred or what effects do they foresee will occur, and when). (Court Reporter: Debra Joyce at 617−737−4410)(Attorneys present: Minahan, Jr. & McSherry for the pltff; Kennedy & McFarland for the deft's) (Lovett, Jarrett) (Entered: 08/03/2010)
262 Letter from Stephen E. Hughes. (York, Steve) (Entered: 10/11/2011)
208 Sealed Document. Monthly Report Dated July 26, 2010. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 08/05/2010)
209 NOTICE OF APPEAL by Harold W. Clarke, Michael Corsini Filing fee: $ 455, receipt number 0101−3016234 Fee Status: n. 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/clerks/transcript.htm 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 8/26/2010. (McFarland, Richard) (Entered: 08/06/2010)
210 MOTION to Stay re 209 Notice of Appeal,,, by Harold W. Clarke, Michael Corsini.(McFarland, Richard) (Entered: 08/06/2010)
211 MEMORANDUM in Support re 210 MOTION to Stay re 209 Notice of Appeal,,, filed by Harold W. Clarke, Michael Corsini. (McFarland, Richard) (Entered: 08/06/2010)
ELECTRONIC NOTICE Setting Hearing on Motion 210 MOTION to Stay re 209 Notice of Appeal,,, : Motion Hearing set for 8/13/2010 09:00 AM in Courtroom 1 before Judge Douglas P. Woodlock. (York, Steve) (Entered: 08/09/2010)
212 Writ of Habeas Corpus ad Prosequendum Issued for 08/13/2010. (York, Steve) (Entered: 08/09/2010)
213 NOTICE by Sandy J. Battista of Proposal Regarding Monthly GID Clinician Reports (McSherry, Dana) (Entered: 08/10/2010)
214 NOTICE by Harold W. Clarke, Michael Corsini in Compliance with the Court's August 3, 2010 Order (Kennedy, Joan) (Entered: 08/10/2010)
215 Supplemental Response by Harold W. Clarke, Michael Corsini to 214 Notice (Other). (Kennedy, Joan) (Entered: 08/11/2010)
216 Opposition re 210 MOTION to Stay re 209 Notice of Appeal,,, filed by Sandy J. Battista. (Minahan, Neal) (Entered: 08/12/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Hearing held re: Defendants Motion to Stay 210 : By August 17, 2010, the parties shall submit an updated version of the Amended Preliminary Injunction Order of 2/10/09 (now out of date), that includes paragraph 3 of the defendants proposed form of preliminary injunction as previously discussed, as well as reference to the names of the specific clinicians treating Battista. The Preliminary Injunction Order shall also include the specific questions to be answered in monthly reports to the Court by the clinicians, including all of defendants questions contained in the proposal 215 as well as proposed questions 1 and 4 of the plaintiffs proposal 213 . By August 18, 2010, the defendants shall file an Affidavit(s) of the clinicians as to the effects that a Stay or reversal of an Order for administration of hormone therapy would have on Battista. By August 20, 2010, the plaintiff shall file any reply on that issue. A further hearing is set for August 23, 2010 at 9:00am. MHM clinicians shall participate at the hearing. The Court will enter a Preliminary Injunction Order at that time and make further Findings of Facts/Conclusions of Law, and will rule on the Motion to Stay at that time.(Court Reporter: Brenda Hancock at 617−439−3214)(Attorneys present: McSherry, Minahan; Kennedy; Stephen Hughes for MHM Services) (Seelye, Terri) (Entered: 08/13/2010)
ELECTRONIC NOTICE Setting Further Hearing on Motion 210 to Stay : Motion Hearing set for 8/23/2010 at 9:00 AM in Courtroom 1 before Judge Douglas P. Woodlock. (Seelye, Terri) (Entered: 08/13/2010)

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08/13/2010 08/16/2010 08/17/2010 08/17/2010 08/18/2010 08/19/2010 08/20/2010 08/23/2010 08/23/2010
08/23/2010
08/23/2010

217 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 209 Notice of Appeal, (Ramos, Jeanette) (Additional attachment(s) added on 8/13/2010: # 1 Page 2) (Ramos, Jeanette). (Entered: 08/13/2010)
USCA Case Number 10−1965 for 209 Notice of Appeal, filed by Harold W. Clarke, Michael Corsini. (Ramos, Jeanette) (Entered: 08/16/2010)
218 Proposed Document(s) submitted by Sandy J. Battista. Document received: Proposed Modified Preliminary Injunction Order. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 08/17/2010)
219 NOTICE by Harold W. Clarke, Michael Corsini of Submission of Proposed Modified Preliminary Injunction Order (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 08/17/2010)
220 NOTICE by Harold W. Clarke, Michael Corsini of Submission of Affidavits (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(McFarland, Richard) (Entered: 08/18/2010)
221 Writ of Habeas Corpus ad Prosequendum Issued for 8/23/10. (Lovett, Jarrett) (Entered: 08/19/2010)
222 NOTICE by Sandy J. Battista of Subission of Expert Report and Testimony (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Minahan, Neal) (Entered: 08/20/2010)
223 Judge Douglas P. Woodlock: ORDER entered. MODIFIED PRELIMINARY INJUNCTION ORDER. See Order for specifics.(Lovett, Jarrett) (Entered: 08/23/2010)
224 Judge Douglas P. Woodlock: ORDER OF STAY PENDING APPEALING entered granting 210 Motion to Stay to the extent that the direction in paragraph 9 of the Modified Order is stayed pending appeal and the specific questions related thereto found in paragraph 5A through H need not be addressed. Consequently, the questions framed in paragraph 4 of the Amended Preliminary Injunction Order of February 10, 2009 shall remain the operative questions to be answered by the monthly GID Clinician Reports provided during the pendency of the appeal. Given the equitable character of this proceeding, no supersedeas bond shall be required. (Woodlock, Douglas) (Entered: 08/23/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Further Hearing on 210 Defendants Motion to Stay Execution of Modified Preliminary Injunction Order Pending Appeal: MHM Medical Director Dr. Robert Diener testifies, court and parties inquire. Court finds it would be improvident not to stay proceedings pending appeal, states reasons on the record, and Allows the Motion to Stay. The issue of DOCs restricted access to medical or mental health information addressed; the Court finds no reason to alter this provision in the Preliminary Injunction Order. The DOC can petition the Court for relief as needed. The issue of the Preliminary Injunction Order with respect to the parameters of psychotherapy (location, dates, duration, therapist) addressed; the Court economics will not drive this issue and will not alter this provision, but will entertain any requests by clinicians for modification if necessary (e.g., to diminish frequency of therapy). The Court modifies the Preliminary Injunction Order (paragraph regarding administration of hormone treatment is no longer applicable in light of the Stay, and the original questions for the clinicians to answer will remain in place, rather than the proposed new questions, in light of the Stay of hormone treatment). In order to have in place a plan for the administration of hormone treatment (should the Court of Appeals affirm the District Court), the Court instructs the plaintiff to submit two alternative proposals for the housing and programs for the plaintiff should hormone treatment be administered. The DOC shall respond to plaintiffs proposals and shall submit four (4) of its own proposals. By September 13, 2010, the parties shall provide the Court with proposals for the timing and structure for the submissions to the Court. Court makes detailed findings of facts and conclusions of law on the record outlining the reasons for the modified Preliminary Injunction Order (entered August 23, 2010). (Court Reporter: Brenda Hancock at 617−439−3214)(Attorneys present: Minahan, Jr. for the pltff; Kennedy & McFarland for the deft's) (Lovett, Jarrett) (Entered: 08/23/2010)
Judge Douglas P. Woodlock: ORDER entered. FINDINGS OF FACT AND CONCLUSIONS OF LAW as stated on the record by Judge Woodlock on 8−23−2010.(Sonnenberg, Elizabeth) (Entered: 02/17/2011)

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08/26/2010 08/30/2010 08/30/2010
09/01/2010 09/02/2010
09/02/2010 09/07/2010
09/07/2010 09/13/2010 09/14/2010
10/05/2010 10/15/2010 11/04/2010 11/15/2010 12/02/2010

225 NOTICE by Harold W. Clarke, Michael Corsini re 209 Notice of Appeal,,, Amended (McFarland, Richard) (Entered: 08/26/2010)
TRANSCRIPT ORDER ACKNOWLEDGMENT FORM received from USCA and addressed to Brenda Hancock re 209 Notice of Appeal. Transcript order form filed in USCA on August 30, 2010. Transcripts ordered: August 23, 2010. Transcript due by 10/29/2010. (Scalfani, Deborah) (Entered: 08/30/2010)
TRANSCRIPT ORDER ACKNOWLEDGMENT FORM received from USCA and addressed to Debra Joyce re 209 Notice of Appeal,,, Transcript order form filed in USCA on August 30, 2010. Transcripts ordered: August 3, 2010 Closing Arguments Plaintiff and Defendant. Transcript due by 10/29/2010. (Scalfani, Deborah) (Entered: 08/30/2010)
226 Sealed Document. Monthly Report Dated August 21, 2010 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 09/01/2010)
227 Transcript of Bench Trial Day Five held on August 3, 2010, before Judge Douglas P. Woodlock. APPEAL #10−1965. 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: Debra Joyce at joycedebra@gmail.com Redaction Request due 9/23/2010. Redacted Transcript Deadline set for 10/4/2010. Release of Transcript Restriction set for 12/1/2010. (Scalfani, Deborah) Modified on 9/2/2010 (Scalfani, Deborah). (Entered: 09/02/2010)
228 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: 09/02/2010)
229 Transcript of Hearing on Motion to Stay Execution of Modified Preliminary Injunction Order Pending Appeal held on August 23, 2010, before Judge Douglas P. Woodlock. COA Case No. 10−1965. 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: Brenda Hancock at 617−439−3214 Redaction Request due 9/28/2010. Redacted Transcript Deadline set for 10/8/2010. Release of Transcript Restriction set for 12/6/2010. (Scalfani, Deborah) (Entered: 09/07/2010)
230 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: 09/07/2010)
231 JOINT STATEMENT of counsel re Scheduling. (Minahan, Neal) (Entered: 09/13/2010)
Judge Douglas P. Woodlock: ELECTRONIC ORDER entered APPROVING 231 Joint supplemental statement of counsel: Plaintiff shall submit two (2) alternative proposals by October 15, 2010. The Defendants shall respond to the Plaintiff's proposals and submit their own alternative proposals by November 15, 2010. A Hearing on these proposals shall be determined after review. (Lovett, Jarrett) (Entered: 09/14/2010)
232 Sealed Document. Monthly Report Dated September 28, 2010. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 10/05/2010)
233 Proposed Document(s) submitted by Sandy J. Battista. Document received: Proposal Related to Housing Conditions. (Minahan, Neal) (Entered: 10/15/2010)
234 Sealed Document. Monthly Report Dated October 18, 2010.. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 11/04/2010)
235 Response by Harold W. Clarke, Michael Corsini to Court Order of August 23, 2010. (Attachments: # 1 Exhibit Attachments 1−3)(McFarland, Richard) (Entered: 11/15/2010)
236 Sealed Document. Monthly Report Dated November 18, 2010. (Attachments: # 1 Exhibit)(York, Steve) (Entered: 12/02/2010)

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01/10/2011 02/04/2011 02/08/2011 03/07/2011 03/31/2011 05/03/2011 05/23/2011 05/23/2011
06/06/2011 06/15/2011 06/16/2011 06/21/2011 06/22/2011 06/22/2011 06/24/2011
06/27/2011 06/27/2011 06/28/2011

237 Sealed Document. Monthly Report Dated December 23, 2010 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 01/10/2011)
239 SEALED DOCUMENT. (Boyce, Kathy) (Entered: 02/17/2011)
238 NOTICE by Harold W. Clarke, Michael Corsini of Assignment of New Therapist (McFarland, Richard) (Entered: 02/08/2011)
240 Sealed Document. Monthly Report Dated February 27, 2011 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 03/08/2011)
241 Sealed Document. Monthly Report Dated March 20, 2011 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 03/31/2011)
242 Sealed Monthly Report Dated April 20, 2011 (Attachments: # 1 Exhibit) (York, Steve) (Entered: 05/03/2011)
243 OPINION of USCA No. 10−1965. Opinion issued in the USCA 5/20/2011 (Ramos, Jeanette) (Entered: 05/23/2011)
244 USCA Judgment as to 209 Notice of Appeal, filed by Harold W. Clarke, Michael Corsini. This cause came on to be heard on appeal from the Untied States District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed. Judgment issued in the USCA 5/20/2011 (Ramos, Jeanette) (Entered: 05/23/2011)
245 Sealed Monthly Report Dated May 24, 2011 (Attachments: # 1 Exhibit)(York, Steve) (Entered: 06/06/2011)
246 MANDATE of USCA as to 209 Notice of Appeal, filed by Harold W. Clarke, Michael Corsini. Appeal 209 Terminated. Mandate issued in the USCA 6/14/2011 (Ramos, Jeanette) (Entered: 06/15/2011)
ELECTRONIC NOTICE of Hearing : Status Conference set for 6/24/2011 09:00 AM in Courtroom 1 before Judge Douglas P. Woodlock. Status report due by 6/21/11.(Lovett, Jarrett) (Entered: 06/16/2011)
247 STATUS REPORT by Sandy J. Battista. (Minahan, Neal) (Entered: 06/21/2011)
248 STATUS REPORT by Michael Corsini, Luis S. Spencer. (McFarland, Richard) (Entered: 06/22/2011)
249 NOTICE by Michael Corsini, Luis S. Spencer of Successor Defendant (McFarland, Richard) (Entered: 06/22/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status Conference held on 6/24/2011. The Court directs parties to file a joint proposed form of Final Judgment, with hormone treatment to begin 7 days after entry. The proposed Final Judgment shall address the issues, including DOC access to medical/mental health records and notice to plaintiff's counsel of any disciplinary action after entry. The parties shall confer about whether continuing monthly report of the clinicians is necessary. The joint proposed Final Judgment is due June 27, 2011 by close of business; a further Status Conference is set for 6/28/2011 04:00 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Court Reporter: Brenda Hancock at 617−439−3214)(Attorneys present: McSherry & Minahan, Jr. for the pltff; McFarland Kennedy for the deft's) (Lovett, Jarrett) (Entered: 06/24/2011)
250 Proposed Document(s) submitted by Sandy J. Battista. Document received: Final Judgment. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 06/27/2011)
251 Proposed Document(s) submitted by Michael Corsini, Luis S. Spencer. Document received: Proposed Final Judgment and Order. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 06/27/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Hearing held on 6/28/11 re: differing proposals for Final Judgment and Order. The Court reviews each paragrah and makes modifications where appropriate. The Court also addresses the remaining issues that are needed to be included in the Final Judgment, such as dismissals of certain parties and claims, substitution of parties,

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06/29/2011
07/05/2011
07/05/2011 07/06/2011 07/11/2011 07/11/2011 07/25/2011 07/25/2011 08/04/2011 08/04/2011 08/05/2011 08/08/2011 08/22/2011 03/28/2014

and the grant of the deliberate indifference claims for equitable relief. Plaintiff's counsel shall submit a final version of the Final Judgment and Order incorporating all modifications and additions discussed, by July 6, 2011. In the interim, the Court issues an oral Order from the bench that hormone therapy commence with seven (7) business days. DOC counsel shall report any issues in this regard by 6/29/11, and an Interim Order for the administration of hormones shall issue. (Court Reporter: Brenda Hancock at 617−439−3214)(Attorneys present: McSherry & Minahan, Jr. for the pltff; McFarland Kennedy for the deft's) (Lovett, Jarrett) (Entered: 06/29/2011)
252 Judge Douglas P. Woodlock: ELECTRONIC INTERIM ORDER entered, in accordance with the oral directions given at the hearing in this matter on June 28, 2011 and the report of defendants' counsel today that the implementation of the medical order for administration of female hormones to the plaintiff can be undertaken by July 8, 2011, it is hereby ORDERED that the defendants shall implement the medical order for administration of female hormones to the plaintiff by no later than July 8, 2011. (Woodlock, Douglas) (Entered: 06/29/2011)
253 Transcript of Hearing Re: Final Judgment and Order held on June 28, 2011, before Judge Douglas P. Woodlock. 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: Brenda Hancock at 617−439−3214 Redaction Request due 7/26/2011. Redacted Transcript Deadline set for 8/5/2011. Release of Transcript Restriction set for 10/3/2011. (Scalfani, Deborah) (Entered: 07/05/2011)
254 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: 07/05/2011)
255 JOINT STATEMENT of counsel on Proposed Final Judgment and Order. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 07/06/2011)
256 Judge Douglas P. Woodlock: FINAL JUDGMENT AND ORDER entered. (Woodlock, Douglas) (Entered: 07/11/2011)
Civil Case Terminated. (Lovett, Jarrett) (Entered: 07/11/2011)
257 MOTION for Attorney Fees, MOTION for Bill of Costs ( Responses due by 8/8/2011) by Sandy J. Battista.(Minahan, Neal) (Entered: 07/25/2011)
258 MEMORANDUM in Support re 257 MOTION for Attorney Fees MOTION for Bill of Costs filed by Sandy J. Battista. (Attachments: # 1 Affidavit of Neal E. Minahan, Esq., # 2 Exhibit A, # 3 Exhibit B)(Minahan, Neal) (Entered: 07/25/2011)
259 Assented to MOTION for Extension of Time to August 22, 2011 to File Response/Reply as to 257 MOTION for Attorney Fees MOTION for Bill of Costs by Michael Corsini, Luis S. Spencer.(Kennedy, Joan) (Entered: 08/04/2011)
Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 259 Assented to MOTION for Extension of Time to August 22, 2011 to File Response/Reply as to 257 MOTION for Attorney Fees, MOTION for Bill of Costs by Michael Corsini, Luis S. Spencer. (Lovett, Jarrett) (Entered: 08/04/2011)
260 MOTION to Withdraw Appearance by MHM Services, Inc.'s.(Hughes, Stephen) Modified on 8/8/2011 to correct the relief type of the motion from motion to withdraw to motion to withdraw as Attorney. (Finn, Mary). (Entered: 08/05/2011)
Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 260 Motion to Withdraw as Attorney. Attorney Stephen E. Hughes terminated. (Lovett, Jarrett) (Entered: 08/08/2011)
261 Opposition re 257 MOTION for Attorney Fees MOTION for Bill of Costs filed by Michael Corsini, Luis S. Spencer. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 08/22/2011)
264 NOTICE by Michael Corsini, Luis S. Spencer of Plaintiff's Discharge from DOC Custody (McFarland, Richard) (Entered: 03/28/2014)

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07/22/2014 265 NOTICE of Withdrawal of Appearance by Neal E. Minahan, Jr (Minahan, Neal) (Entered: 07/22/2014)