Case: 6:15-cv-190 As of: 03/01/2020 11:32 AM CST 1 of 6
U.S. District Court [LIVE] Western District of Texas (Waco) CIVIL DOCKET FOR CASE #: 6:15−cv−00190−RP

APPEAL

Gibson v. Livingston et al Assigned to: Judge Robert Pitman Cause: 42:1983 Prisoner Civil Rights
Plaintiff Scott Lynn Gibson also known as Vanessa Lynn

Date Filed: 06/08/2015 Date Terminated: 08/31/2016 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Scott Lynn Gibson 699888 A. Hughes Unit Rt. 2, Box 4400 Gatesville, TX 76597 PRO SE

V. Defendant Brad Livingston
Defendant Name Unknown UTMB Policy Maker Defendant Municipality of Gatesville, TX TERMINATED: 11/17/2015

represented by Afton R. Trevino City of Austin Law Department Litigation Division P.O. Box 1546 Austin, TX 78701 512−974−2282 Fax: 512−974−1311 Email: afton.trevino@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard A. Huntpalmer Office of the Attorney General Law Enforcement Defense Division 300 W. 15th Street Austin, TX 78701 512−463−2080 Fax: 512−370−9398 Email: richard.huntpalmer@cpa.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Roy Lee Barrett Naman Howell Smith & Lee, LLP 400 Austin Avenue, Suite 800 Waco, TX 76703−1470 (254)755−4100 Fax: 254/754−6331 Email: Barrett@namanhowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joe Rivera Naman Howell Smith & Lee, PLLC

Case: 6:15-cv-190 As of: 03/01/2020 11:32 AM CST 2 of 6

Defendant Dr. D. Greene
Amicus Office of the Attorney General

400 Austin Ave., Suite 800 Waco, TX 76703 (254) 755−4129 Fax: (254) 754−6331 Email: jrivera@namanhowell.com ATTORNEY TO BE NOTICED
represented by Afton R. Trevino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/08/2015 06/08/2015
06/08/2015 06/08/2015 06/09/2015 06/11/2015
06/22/2015 06/22/2015 06/22/2015 07/02/2015
07/07/2015
07/07/2015 07/09/2015 07/09/2015 07/17/2015 07/20/2015

# Docket Text
1 COMPLAINT filed by Scott Lynn Gibson.(mc5) (Entered: 06/09/2015)
2 MOTION For the Court to Follow the Court's Decisions in Kosilex v. Spancer and Field v. Smith For Lack of Precedent by Scott Lynn Gibson. (mc5) (Entered: 06/09/2015)
3 MOTION for Preliminary Injunction by Scott Lynn Gibson. (mc5) (Entered: 06/09/2015)
4 MOTION to Proceed in forma pauperis by Scott Lynn Gibson. (mc5) (Entered: 06/09/2015)
5 Letter to Scott Lynn Gibson advising of case number, filing instructions and general case information. (mc5) (Entered: 06/09/2015)
6 ORDER Directing Monthly Payments be made from Prison Account of Scott Lynn Gibson, aka Vanessa Lynn, TDCJ # 699888. Signed by Judge Walter S. Smith. (ad) (Entered: 06/11/2015)
7 MOTION to Appoint Counsel by Scott Lynn Gibson. (tb) (Entered: 06/23/2015)
8 MOTION For U.S. Marshal to Serve Complaint and Summons by Scott Lynn Gibson. (tb) (Entered: 06/23/2015)
9 MOTION to Produce by Scott Lynn Gibson. (tb) (Entered: 06/23/2015)
10 MOTION Requesting the Court to Compel the Defendant's to Adhere to Their Stated Reason for Denying Plaintff Medial Care by Scott Lynn Gibson. (ad) (Entered: 07/02/2015)
11 ORDER DENYING 3 Motion for Preliminary Injunction; DENYING 7 Motion to Appoint Counsel ; DENYING 9 Motion to Produce; DENYING 10 Motion to Compel and GRANTING 2 Motion to Follow Court's Decisions but only to the extent that the circuit court decisions in Kosilek and Fields are recognized as persuasive but not controlling authority. Signed by Judge Walter S. Smith. (ad) (Entered: 07/07/2015)
12 ORDER GRANTING 8 Motion to Have the USMS serve Complaint and Summons. Signed by Judge Walter S. Smith. (ad) (Entered: 07/07/2015)
13 Summons Issued as to Brad Livingston. (ad) (Entered: 07/09/2015)
14 Summons Issued as to Unknown UTMB Policy Maker. (ad) (Entered: 07/09/2015)
15 MOTION requesting the court to consider the court's legal reasoning in Fields v. Smith by Scott Lynn Gibson. (tb) (Entered: 07/17/2015)
16 MOTION for Reconsideration by Scott Lynn Gibson. (tb) (Entered: 07/21/2015)

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07/30/2015 08/06/2015 08/06/2015 08/06/2015 08/10/2015 08/10/2015
08/18/2015 08/19/2015
08/20/2015 08/24/2015 09/16/2015 09/16/2015 10/07/2015
10/19/2015 10/19/2015 10/19/2015 10/19/2015
10/20/2015 10/22/2015 10/23/2015
10/27/2015
10/30/2015
11/03/2015

17 ORDER DENYING 15 Motion ; DENYING 16 Motion for Reconsideration. Signed by Judge Walter S. Smith. (tb) (Entered: 07/30/2015)
18 MOTION Requesting the Court to Follow the Court's Decision from the States for Lack of Precedent by Scott Lynn Gibson. (tb) (Entered: 08/06/2015)
19 ADVISORY TO THE COURT by Scott Lynn Gibson. (tb) (Entered: 08/06/2015)
20 MOTION Requesting the Clerk's Office to Place the Address on Plaintiff's Summons by Scott Lynn Gibson. (tb) (Entered: 08/06/2015)
21 ORDER GRANTING 20 Motion Requesting the Clerk's Office to Place the Address on Plaintiff's Summons. Signed by Judge Walter S. Smith. (tb) (Entered: 08/10/2015)
22 ORDER DENYING 18 Motion Requesting the Court to Follow the Court's Decision from the States for Lack of Precedent. Signed by Judge Walter S. Smith. (tb) (Entered: 08/10/2015)
23 ADVISORY TO THE COURT by Office of the Attorney General. (Trevino, Afton) (Entered: 08/18/2015)
24 ORDERED that, pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure, the United States Marshal shall serve a copy of the Complaint (Doc. 1 ), summons, and this Order upon Defendant Livingston at the following address: P.O. Box. 99, Huntsville, Texas 77342. Signed by Judge Walter S. Smith. (tb) (Entered: 08/19/2015)
25 Clerk's Copy of 13 Summons Issued (tb) (Entered: 08/20/2015)
26 ADVISORY TO THE COURT by Scott Lynn Gibson. (tb) (Entered: 08/25/2015)
27 Clerk's Copy (tb) (Entered: 09/16/2015)
28 Certified mail acknowledgment receipt of order to answer 1983 actions as to Brad Livingston. (tb) (Entered: 09/16/2015)
29 Defendant Brad Livingston's Original ANSWER to 1 Complaint and Jury Demand. Attorney Afton R. Trevino added to party Brad Livingston(pty:dft) by Brad Livingston.(Trevino, Afton) (Entered: 10/07/2015)
30 MOTION Pursuant to Rule B (b), FED. R. CIV. P. by Scott Lynn Gibson. (tb) (Entered: 10/19/2015)
31 MOTION to Produce Documents by Scott Lynn Gibson. (tb) (Entered: 10/19/2015)
32 MOTION for Interrogatories and to Produce Documents by Scott Lynn Gibson. (tb) (Entered: 10/19/2015)
33 MOTION TO FOLLOW THE COURT'S DECISION IN FIELD V. SMITH, 655 F.3d 550,556 7th cir. 2001 FOR LACK OF PRECEDENT by Scott Lynn Gibson. (tb) (Entered: 10/19/2015)
34 MOTION to Dismiss by Municipality of Gatesville, TX. (Attachments: # 1 Proposed Order)(Barrett, Roy) (Entered: 10/20/2015)
35 Miscellaneous Objection to 29 Answer to Complaint by Scott Lynn Gibson. (tb) (Entered: 10/22/2015)
36 ORDERED that Plaintiff shall have 14 days to respond to Gatesville's 34 MOTION to Dismiss filed by Municipality of Gatesville, TX. Signed by Judge Walter S. Smith. (tb) (Entered: 10/23/2015)
37 Acknowledgment of Service returned by Scott Lynn Gibson. Municipality of Gatesville, TX served on 10/23/2015, answer due 11/23/2015. (tb) (Entered: 10/27/2015)
38 Response in Opposition to Motion, filed by Scott Lynn Gibson, re 34 MOTION to Dismiss filed by Defendant Municipality of Gatesville, TX. (jgb) (Entered: 11/02/2015)
39 RESPONSE to Motion, filed by Municipality of Gatesville, TX, re 34 MOTION to Dismiss filed by Defendant Municipality of Gatesville, TX (Barrett, Roy) (Entered:

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11/09/2015 11/17/2015
11/19/2015 11/23/2015 11/24/2015 12/04/2015 12/08/2015 12/18/2015 12/21/2015 01/14/2016 02/19/2016 02/19/2016 02/19/2016 02/26/2016 02/26/2016 02/26/2016 03/01/2016
03/01/2016 03/01/2016

11/03/2015)
40 NOTICE OF COMPLIANCE WITH DUTY TO DISCLOSE by Brad Livingston (Trevino, Afton) (Entered: 11/09/2015)
41 ORDER DENYING 30 Motion ; DENYING 31 Motion to Produce; DENYING 32 Motion to Produce; DENYING 33 Motion ; GRANTING 34 Motion to Dismiss. Terminated party Municipality of Gatesville, TX. Signed by Judge Walter S. Smith. (sm3) (Entered: 11/17/2015)
42 MOTION for Preliminary Injunction by Scott Lynn Gibson. (tb) (Entered: 11/20/2015)
43 MOTION for Discovery by Scott Lynn Gibson. (tb) (Entered: 11/23/2015)
44 MOTION for Protective Order by Brad Livingston. (Attachments: # 1 Proposed Order)(Trevino, Afton) (Entered: 11/24/2015)
45 Response in Opposition to Motion, filed by Scott Lynn Gibson, re 44 MOTION for Protective Order filed by Defendant Brad Livingston (tb) (Entered: 12/04/2015)
46 ORDER DENYING 42 Motion for Preliminary Injunction; DENYING 43 Motion for Discovery; DENYING 44 Motion for Protective Order. Signed by Judge Walter S. Smith. (tb) (Entered: 12/08/2015)
47 MOTION for Reconsideration re 46 Order on Motion for Preliminary Injunction, by Scott Lynn Gibson. (tb) (Entered: 12/18/2015)
48 MOTION to Amend Complaint by Scott Lynn Gibson. (Attachments: # 1 Amended Complaint)(tb) (Entered: 12/21/2015)
49 MOTION for Entry of Judgment under Rule 54(b) by Municipality of Gatesville, TX. (Attachments: # 1 Proposed Order, # 2 Proposed Order Proposed Final Judgment)(Barrett, Roy) (Entered: 01/14/2016)
50 MOTION for Summary Judgment with Brief in Support by Brad Livingston. (Attachments: # 1 Exhibit C, # 2 Proposed Order)(Trevino, Afton) (Entered: 02/19/2016)
51 MOTION to Seal Exhibit A and Exhibit B of Defendant Livingston's Motion for Summary Judgment with Brief in Support by Brad Livingston. (Attachments: # 1 Proposed Order)(Trevino, Afton) (Entered: 02/19/2016)
52 Motion for leave to File Sealed Document (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order) (Trevino, Afton) (Entered: 02/19/2016)
Text Order GRANTING 51 Motion entered by Judge Walter S. Smith. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ss) (Entered: 02/26/2016)
Text Order GRANTING 52 Motion for Leave to File Sealed Document entered by Judge Walter S. Smith. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ss) (Entered: 02/26/2016)
53 Sealed Document filed. (Attachments: # 1 Exhibit) (mc5) (Entered: 02/26/2016)
54 ORDER DENYING 47 Motion for Reconsideration ; GRANTING 48 Motion to Amend Complaint; GRANTING 49 Motion for Entry of Judgment under Rule 54(b). ORDERED that the Clerk's Office is directed to provide Plaintiff with the appropriate number of marshal forms and summonses. ORDERED that, pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure, the United States Marshal shall serve a copy of Plaintiff's Complaint, summons, and this Order upon each defendant as directed by the Plaintiff. Signed by Judge Walter S. Smith. (tb) (Entered: 03/01/2016)
55 SUPPLEMENT to 1 Complaint by Scott Lynn Gibson. (tb) (Entered: 03/01/2016)
56 ORDERED, ADJUDGED, and DECREED as follows: Final judgment should and is hereby RENDERED in favor of the City of Gatesville and it is hereby ORDERED, ADJUDGED and DECREED that all Plaintiffs claims and causes of action herein against the city are dismissed with prejudice. Signed by Judge Walter S. Smith. (tb) (Entered: 03/01/2016)

Case: 6:15-cv-190 As of: 03/01/2020 11:32 AM CST 5 of 6

03/11/2016
03/14/2016 03/14/2016 03/14/2016 03/15/2016 04/04/2016 04/04/2016 04/04/2016 04/04/2016 05/02/2016 06/23/2016
08/26/2016 08/31/2016
08/31/2016 09/12/2016
09/12/2016 09/14/2016 09/15/2016 09/19/2016
09/27/2016 09/27/2016

58 Response in Opposition to Motion, filed by Scott Lynn Gibson, re 50 MOTION for Summary Judgment with Brief in Support filed by Defendant Brad Livingston (Attachments: # 1 Exhibit)(jch) (Entered: 03/14/2016)
57 Summons Issued as to D. Greene. (jch) (Entered: 03/14/2016)
59 AMENDED AFFIDAVIT in Support of 1 Complaint by Scott Lynn Gibson. (tb) (Entered: 03/14/2016)
60 MOTION REQUESTING THE COURT TO CONSIDER THE COURT'S HOLDING IN PRAYLOR V. TDCJ by Scott Lynn Gibson. (tb) (Entered: 03/14/2016)
61 Clerk's Copy of 57 Summons Issued (jch) (Entered: 03/15/2016)
62 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by Scott Lynn Gibson. (tb) (Entered: 04/05/2016)
63 DECLARATION in Support of 62 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction by Scott Lynn Gibson. (tb) (Entered: 04/05/2016)
64 Letter/Correspondence from Scott Lynn Gibson. (tb) (Entered: 04/05/2016)
65 Acknowledgment of Service returned by Scott Lynn Gibson. D. Greene served on 3/21/2016, answer due 5/2/2016. (tb) (Entered: 04/05/2016)
66 MOTION to Compel Dr. Greene to respond to Plaintiff's 1983 Complaint by Scott Lynn Gibson. (tb) (Entered: 05/02/2016)
67 MOTION TO ALLOW PLAINTIFF TO USE TDCJ'S SPOKESMAN JASON CLARK' STATEMENT AS PROOF TO SUPPORT HER LAWSUIT by Scott Lynn Gibson. (tb) (Entered: 06/23/2016)
68 MOTION for the Court to Lift the Ban on Gender Reassignment Surgery by Scott Lynn Gibson. (tb) (Entered: 08/26/2016)
69 ORDER GRANTING 50 Motion for Summary Judgment; DENYING 60 Motion ; DENYING 62 Motion for TRO; DENYING 62 Motion for Preliminary Injunction; DENYING 66 Motion to Compel; DENYING 67 Motion ; DENYING 68 Motion. ORDERED that the Clerk of the Court is directed to e−mail copies of this Order and the Judgment to the TDCJ−Office of the General Counsel and the ProSe Clerk for the United States District Court for the Eastern District of Texas. Signed by Judge Walter S. Smith. (tb) (Entered: 08/31/2016)
70 CLERK'S JUDGMENT (tb) (Entered: 08/31/2016)
71 NOTICE OF APPEAL by Scott Lynn Gibson. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (jch) (Entered: 09/12/2016)
72 MOTION to proceed In Forma Pauperis on appeal 71 by Scott Lynn Gibson. (jch) (Entered: 09/12/2016)
73 NOTICE of New Attorney−In−Charge by Brad Livingston (Huntpalmer, Richard) (Entered: 09/14/2016)
74 MOTION for Reconsideration re 69 Order on Motion for Summary Judgment, by Scott Lynn Gibson. (tb) (Entered: 09/15/2016)
75 ORDER REASSIGNING CASE. Case reassigned to Judge Robert Pitman for all proceedings. Judge Walter S. Smith no longer assigned to case. Signed by Chief Judge Orlando L. Garcia. (mc5) (Entered: 09/22/2016)
76 ORDER DENYING 74 Motion for Reconsideration. Signed by Judge Robert Pitman. (tb) (Entered: 09/27/2016)
77 ORDER Directing Monthly Payments be made from Prison Account of SCOTT LYNN GIBSON. Signed by Judge Robert Pitman. (tb) (Entered: 09/27/2016)

Case: 6:15-cv-190 As of: 03/01/2020 11:32 AM CST 6 of 6

10/12/2016
02/09/2018 04/22/2019 12/09/2019

Certification of the Electronic Record on Appeal has been accepted by the 5th Circuit re 71 Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (tb) (Entered: 10/12/2016)
78 Initial Partial Filing fee received in the amount of $1.00, receipt number 600022379. (jch) (Entered: 02/09/2018)
79 Certified copy of USCA MANDATE Affirming District Court's decision re 71 Notice of Appeal, filed by Scott Lynn Gibson. (lad) (Entered: 04/23/2019)
80 WRIT OF CERTIORARI re 71 Notice of Appeal, DENIED by US Supreme Court (lad) (Entered: 12/11/2019)

 
 Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE We S t a r

DISTRICT OF TEXAS

Li a c o

DIVISION

Form To Be Used By A Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U S C § 1983

Scott Lynn gibson 6998BB Plaintiff's name and ID Number

fr2necSc,, Ln/4)

2Oig

A. hughes Unit Place of Confinement
V.

CASE NO:

A
(Clerk will assign the number)

Brad Livingston, Director of TDCJ Defendant's name and address UTMB Policy Maker
Defendant's name and address

P0 Box 99 huntsville,TX 77342

Municipality o Gatesville, TX
Defendant's name and address
(DO NOT USE "El AL.")

-INSTRUCTIONS - READ CAREFULLY
NOTICE:
Your complaint is subject to dismissal unless it conforms to these instructions and this form.
1. To start an action you must file an original and one copy of your complaint with the court. You should keep a copy of the complaint for your own records.
2. Your complaint must be legibly handwritten in ink, or typewritten. You, the plaintiff, must sign and declare
under penalty of perjury that the facts are correct. If you need additional space, DO NOT USE THE REVERSE SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND
WRITE ON IT.
3. You must file a separate complaint for each claim you have unless the various claims are all related to the
same incident or issue or are all against the same defendant, Rule 18, Federal Rules of Civil Procedure. Make a short and plain statement of your claim, Rule 8, Federal Rules of Civil Procedure.
4. When these forms are completed, mail the original and one copy to the Clerk of the United States Court for the appropriate District of Texas in the Division where one or more named defendants are located, or where the incident giving rise to your claim for relief occurred. The list labeled as "VENUE LIST" is posted in your unit law library. It is a list of Texas prison units indicating the appropriate District Court, the Division and an address of the Divisional Clerks.

ATC 1983 (Rev. 04/06)

Page 1 of 5

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 2 of 33 FILING FEE AND IN FORMA PAUPERIS

1. In order for your complaint to be filed, it must be accompanied by the filing fee of $350.00.
2. If you do not have the necessary funds to pay the filing fee in full at this time, you may request permission to proceed in forma pauperis. In this event you must complete the application to proceed in forma pauperis
(IFP), setting forth the information to establish your inability to prepay the fees and costs or give security
therefore. You must also include a six (6) month history of your Inmate Trust Account. You can acquire the application to proceed IFP and appropriate Inmate Account Certificate from the law library at your prison
unit.

3. 28 U.S.C. 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), provides, ". . .if a prisoner brings a civil action or files and appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." Thus, the Court is required to assess and, when funds exist, collect, the entire filing fee or an initial partial filing fee and monthly installments until the entire amount of the filing fee has been paid by the prisoner. If you submit the application to proceed in forma pauperis, the Court will apply 28 U.S.C. 1915 and, if appropriate, assess and collect the entire filing fee or an initial partial filing fee, then
monthly installments from your Inmate Account, until the entire Q filing fee has been paid.
4. If you intend to seek in forma pauperis status, then do not send your complaint without an Application to Proceed IFP, and the Certificate of Inmate Trust Account. Complete all the essential paperwork before
submitting it to the Court.

CHANGE OF ADDRESS

It is your responsibility to inform the Court of any change of address and its effective date. Such notice
should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any
motions(s) for any other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may
result in the dismissal of your complaint pursuant to Rule 41(b), Federal Rules of Civil Procedures.

I. PREVIOUS LAWSUITS:

A. Have you filed any other lawsuits in the state or federal court relating to

imprisonment?

X

YES

NO

B. If your answer to "A" is yes, describe each lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, giving the same information.)

1. Approximate date of filing lawsuit: 2004/2005

Parties to previous lawsuit: Plaintiff(s): Scott Lynn Oibson
Defendant(s):'

3. Court(Iffederal, name the district; if state, name the county) Sothern Di s tict Court with TDCJ's storllaaemy pocloiucryt records were destroyed so I could comply
4. Docket Number:
5. Name ofjudge to whom case was assigned:

6. Disposition: (Was the case dismissed, appealed, still pending?) Denied

7. Approximate date of disposition: 200

ATC 1983 (Rev. 04/06)

Page 2 of 5

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 3 of 33

nit II. PLACE OF PRESENT CONFINEMENT: A. H ugh e s U

III. EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted both steps of the grievance procedure in this institution? X

YES

NO

Attach a copy of the Step 2 grievance with the response supplied by the prison system.

IV. PARTIES TO THE SUIT:
Li.4U0 A.GNaatmeseovfialdlderesTsoXf.plaintiff: Scott Lynn Gibson-- A. Hughes unit RI. 2 box

B. Full name of each defendant, his official position, his place of employment, and his full mailing address.
dirneeadnsiiefofsnesBrmeriefenfltmy deteodsc#ircibmaelythgecsraaeacdrrt(eiso)Lauooirsvsfoyimnmmsisgtyseeisodmtnsoi(ecsan)ratioliocfTtuhnhisebseadenemDdfe-eniofrddnoeainrcct,satoewlnxrhoicchmoroeyfneaoddusTisicDctliaaCigi.o.mJlnnemu, neaaanrnsmtodendssyuboreugoi.nergrysedwceulhiirbcihteyrate

Defendant#2: Name unknown-flut is the policy maker at UTMB

dert Cr e a t e dBrelT
dinedniiefsfermeenmt etodicmayl

care of serious

mmyedsiecrailoiocf utnhsieoseadndmef.eenoddnainctalwexhicchorenyaodusisctiliagoimnnem,d heaanrnmtdedsiybroegui.negry

which
d]ihRrate

Defendant #3:

The Municiplity of Gatesville TX

CraenradesasbtiegednBimJraieDnefdlnyetdeetssnicuerfiobire.raytchtiieeynagct(t/islonI)drodLrioafmfUlilesoisrniwoeinnei(nsst)gomfttoehTiDsmmCdyJeefedntsiodecaranitle,onwucfhsoaicrrhecmyeoeuodcafilacismamyylesdtsnheaeemrremideaod.tuiycsou.bmaendiocnal

sex need

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

Defendant #5:

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

Note: This policy sex reassignment

doesn't even
surgey would

traellaotw

Plaintiff
the actual

to be cause

eovf ahluearteidllntoessse.e

if

ATC i983 (Rev. 04/06)

Page 3 of 5

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 4 of 33
V. STATEMENT OF CLAIM:
State here in a short and plain statement the facts of your case, that is, what happened, where did it happen,
when did it happen, and who was involved. Describe how defendant is involved. You need not give any
legal argument or cite any cases of statutes. If you intent to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach extra pages if necessary, but remember that the complaint
must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR COMPLAINT.
The Defendants are violating Plaintiff's constitutional rights under the 8th amendment by denying her medical care that would treat the actual cause of her serioud medical condition to enforce a sytamatic ban on sex reassignment surgery; which creates a policy of deliberate indifference to her gender dysphoria because they refuse to allow her to be evaluated to determine if 8ex reassignment surgery would be a viable medical treatment option based on her medical needs. Consequently, Plaintiff has
to suffer severe mental anguish that causes her to have realistic thoughts of commiting suicide end of self-casteration which forces her to live in conditions that places her].ife at substanial VI. RELIEF: State briefly exactly what you want the court to do for you. Make no legal arguments. Cite not cases or statutes. Grant Plaintiff declaration that this ban is unconstitution3l, and
rind a preliminary and permanent injunction ordering the Defendants to the ai n sax reassignment surgery. and attoreny fees VII. GENERAL BACKGROUND INFORMATION:
A. State, in complete form, all names you have ever used or been known by including any and all aliases: LIL Younjs tee, Joy Venessa

B. List all TDCJ-ID identification numbers you have ever been assigned and all other state or federal prison or FBI numbers ever assigned to you, if know to you.
699838

VIII. SANCTIONS:

A. Have you been sanctioned by any court as a result of any lawsuit you have filed?

YES

NO

B. If your answer is "yes", give the following information for every lawsuit in which sanctions were
imposed. (If more than one, use another piece of paper and answer the same questions.)

1. Court that imposed sanctions (If federal, give district and division):

2. Case Number:

3. Approximate date sanctions were imposed:

4. Have the sanctions been lifted or otherwise satisfied?

YES

NO

ATC 1983 (Rev. 04/06)

Page 4 of 5

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 5 of 33
STATEMENT OF CLAIM CONTINUED
risk of harm.
(2). Plaintiff asserts that TDCJ-ID ban on sex reassignment surgery is unconstitutional, both facicelly and as applied because it indiacriminally and arbitrarily denies transgender inmates who has severe Gender Dysphoria medical treatment that would treat the actual cause of their illness for no justification whatsoever, end thus it's not based on A Doctor's evalutiun. In Fact, This policy refuses to even allow Plaintiff to be evaluted to see if sex reassignment surgery would adequately treat her.
Plaintiff asserts that as applied to her TDCJ-Id ban on sex reassignment surgery is uncondtitutional because it allows the Defendants to ignor her serious medical needs for nonmedical reasons which places her life at substantial risk of harm because her ill ness causes her to have realistic thoughts of committing suicide and of self-casteretion,
Plaintiff futher asserts that no set of circumstances exists under which the ban can be valid because TDCJ-ID has created a situation where they don't even have to evalute a traneqender inmate for this type of treatment regardless how severe their illness is
cr.e*Ic creates a policy of deliberate indifferences to an inmates
serious medical needs, and totally rejects the stanard of care that purant professionals foèlow to treat Gender Dysphoria.

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 6 of 33

C. Has any court ever warned or notified you that sanctions could be imposed?

YES

NO

D. If your answer is "yes", give the following information for every lawsuit in which warning was imposed. (If more than one, use another piece of paper and answer the same questions.)

1. Court that imposed warning (if federal, give the district and division):
2. Case number: 3. Approximate date warning were imposed:

Executed on:

(Date)

(Printed Name)

PLAINTIFF'S DECLARATIONS

(Signature of Plaintiff)

I declare under penalty of perjury all facts presented in this complaint and attachment thereto are true and
correct.

2. I understand if I am released or transferred, it is my responsibility to keep the Court informed of my current mailing address and failure to do so may result in the dismissal of this lawsuit.
3. I understand that I must exhaust all available administrative remedies prior to filing this lawsuit.
4. I understand I am prohibited from bringing an in forma pauperis lawsuit if I have brought three or more civil actions in a Court of the United States while incarcerated or detained in any facility, which lawsuits are dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief may be granted, unless I am under imminent danger or serious physical injury.
5. I understand even if I am allowed to proceed without prepayment of costs, I am responsible for the entire
$350 filing fee and costs assess by the Court, which shall be deducted in accordance with the law from the inmate account by my custodian until the filing fee is paid.

Signed this

(Day)

dayof /'/7
(Month)

,20
(Year)

5cof/ /
,7edName)2L
(Signa re of Plaintiff)

WARNING: The Plaintiff is hereby advised any false or deliberately misleading information provided in response to the following questions will result in the imposition of sanctions. The sanctions the Court may impose include, but are not limbed to monetary sanctions and/or the dismissal of this action with prejudice.

ATC 1983 (Rev. 04/06)

Page 5 of 5

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 7 of 33 Originally publzshe4on Think Progress by Alice Olstein April 3 2015

IwwsahanowtemdthatayotnItaehkeadedtihta.ecIohhpaonppcoéerttutoonlicetyoarrtrnoesfoprfoofmnedr mfwriyeitnphdeasnnhpiipanlca,anardcnepdroassttiertidikveiintyditvoaidsvuoaamllu,eaaobnnldee friendship

because i much but

have they

a cousm in wont let us

prison and he ee/wnte hun

feels so lonely and i so having the chance

miss him so to write and

help someone feel important and less lonely )

I think everyone deserves a friend to talk to

Have heard sane -- and

countless people on the mside have learned a lot about trust

say and

that receiving letters kept them solidarity from pen pals in the

past

/ I've spent roughly 3 years of my life in different psychiatric mstitute It can
feel like it will never end. People need libpe.

cjot I recently came
understand how

out to my parents it is to survive in

and havinteen
an unwelcommg

in the
enonment

being said I wanted to make an impact on LBGTQ community

someone like they helped me when I was lost or in bad situation

so long i With that and help I want to

return the good that was done to me.

MHIsuceypowpFuoaaldrsthtnrsee'otrcmbeweneatotslhynaeecrretewuleafhoalolsryenhdiein,meapdnrsdidsuitoIriansnnufgdpohprmiossasoeyhmbaIere'mdteuevnstrteeynt,iinImmgreaetskfo.uemIsaewadnkaaeenlwlnucapfordifneootnramdcth'tyewpfiatahcrtthtauhnnad,t

I
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rFatCraats,e 6:a1n5-nctva-d-0n0..1a9nd0--Wa 4S' S( ..D.-o..cunm. ae1nTtn1t,dFialend 06/08/15 POaFgFeI8CEof U3S3E ONLY

iSa9'i Grievance #: 2p

i // Date Received:

5 /1 '9

/;' / Date Due: _ LI

Grievance Code:

-

Investigator ID #:

-LIU1 -1'

Extension Date:
Date Retd to Offender. AN 0 5

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when

/ appealing the results of a disciplinary hearing.
Who did you talk to (name, title)?
drs What was their response? rD(.

Or1 C (242
piviik. 5ex

When? 12-
Si1,i1('t 1- S

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/

What action was taken? /Lb'i)p

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1-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF TifiS FORM

(OVER) Appendix F

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 9 of 33

Action Requested to resolve your Complaint.

Grievance Response: TDidcimnhohyfopeosniorpcoDmrhettisoaaaq,nrlguirtcnaeao"ogal.mrsiaeftAri'padcsllfisaonaooirgnnf, adtyfbsumooSpntutehrcaondtticdtiooaseitlnasnigicsdonnaitbgsloemo"Msf;rioedstareeheantrenu,tfrdhainelelfoi,tonrD5ertgtreahSeatyaMmeftodmoe-uirIntemVidtno.oatnolPnirdsgloDeortiaienSemssdvMeinacevnoaV-tcttieaterhcde.ter.chioetIcetgirrinniistiaiLezarifeatioalt"rhGfs"eotieermdpneidpsiitenachrirertehmrItideDoeegnnnirsttiooieitrfnvydtaheDsneorcicsoepiorahprlDyd,rsoeoyircccs"ecpiasubhsnpuobattroityraiao.mutnhGtaaielkilriv,ez"eoitGnnrregoetahnttthhadmeteereyrnotu

JAN

2O15

/t4' / J/ft7/9 SignatureAuthority:

JtYJf1/'

Date:

ds Ifyou are dissatisfied with tre Step rresponse, you may submit a Step 2 (1-128) to the Unit Grievance Investigator within 15

State the reason for appeal on the Step 2 Form.

I

from the date of thjStep41 res use.

Returned because:

*Resubmit this form when the corrections are made.

o i. Grievable time period has expired. 0 2. Submission in excess of 1 every 7 days. * o 3. Originals not submitted. * 0 4. Inappropriate/Excessive attachments. * 0 5. No documented attempt at informal resolution. *
1J 6. No requested relief is stated. *
O 7. Malicious use of vulgar, indecent, or physically threatening langu;
J 8. The issue presented is not grievable.
0 9. Redundant, Refer to grievance #________________________________ O 10. Illegible/Incomprehensible. * O ii. Inappropriate. *
UGI Printed Name/Signature:
Application of the screening criteria for this grievance is not expected to adversely Affect the offender's health.
Medical Signature Authority:___________________________________________

OFFICE USE ONLY

Initial Submission

UGI Initials:___________

Grievance #:

Screening Criteria Used:

Date Recd from Offender:

Date Returned to Offender:

2/"-Submission Grievance #:

UGI Initials:_________

Screening Criteria Used:

Date Recd from Offender:

Date Returned to Offender:

p-Submission

UGI Initials:_________

Grievance #:

Screening Criteria Used:

Date Reed from Offender:

Date Returned to Offender:

1-127 Back (Revised 11-2010)

Appendix F

Case 6:15-cv-00190-WSS Document 1 Filed 0F6E/B08i/215Q1P5age 10 of 33

Texas Department of Cii Amnal Justice

STEP 2

OFFENDER

GRIEVANCE FORM

cb) OffenderName:3Cc// L/,T9)7)

mcj#....j

.t Unit: ,4 %i-A'

/Z Housing Assignment:

c

Umt where mcident occurred: i2

k()..4's r , ii

IO,',? OFFICE USE ONLY
Grievance #: ?c
/ UGlRecdDate:
HQRecdDate: JAN 1 2015
Date Due:
a 4 Grievance Code: (2
Investigator ID#:
Extension Date:

You must attach the completed Step I Grievance that has be accepted You may not appeal to Step 2 with a Step 1 that has b'

- by the Warden for your Step 2 appeal to be
ed unprocessed

Give reason for appeal (Be Specific). Jam dissatisfied with the re6dnse at,Siep I because..

Jfie7

kr r(Ec-jtc( Wit'! fJi1(f1/CzCtVTJeL. /1 £t

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I

Appendix G

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 11 of 33

Offender Signature:
Grievance Response:
A review of the medicI grievance and dccurnentk ias iee Lompleted regarthng your report you have been diagnosed with gender
dysphoria and wants a policy change in TDC to include sex reassignment surgery. You also want to be referred to a specialist for the surgery.
An appellate review of the medical grievance and clinical records indicates you were given appropriate information in the Step 1 Responsa. Additionally, you were seen on 8-25-2014 for hormone therapy. You also received a referral to HG-endocrinology and have an appointment ; March 2015. You were advised to continue your psychiatric therapy. Per provider chart review on 9-24-2014 you were recommended for antiandrogen effects prior to starting therapy and spironolactone was started. Another provider chart review was done on 12-17-2014 and ft was recommended that your levels of testosterone be monitored before making adjustments to your medication. Your estrogen therapy cannot be started until your testosterone is suppressed due to the increase risk of blood clots. You are to return to clinic in 2-3 motiths for possibe
initiation of estrogen therapy. On 2-3-2015 you were seen requesting a bra for your gender identity disorder. You were referred to ee tie
provider for evaluation of sports bra need. According to documentation there's no evidence that you have been denied or delayed in receiving medications or treatment.
Documentation in your medical records indicates you have been afforded the access to proper medical care in accordance to CMHC policy A 01.1. You are being seen in accordance to CMHC policy G-51.11. No further action is warranted at this time through the grievance process.

Signature Authority:

STEP H MEDICAL GRIEVANCE PROGRN
OFFICE OF PROFESSIO STANDARDS TDCJ HEALTH SERVICES DMSION

Date:

/5

Returned because: *Resubmit this form when corrections are made.
O 1. Grievable time period has expired. 0 2. Illegible/Incomprehensible.* O 3. Originals not submitted. * O 4. Inappropriate/Excessive attachments.* 0 5. Malicious use of vulgar, indecent, or physically threatening language. 0 6. Inappropriate.*

OFFICE USE ONLY

Initial Submission

CGO Initials:

Date UGI Reed:_______________________

Date CGO Reed:_______________________

(check one) _Screened __jmproperly Submitted

Comments:

Date Returned to Offender:__________________

Submission

CGO Initials:_______

Date UGI Reed:______________________

Date CGO Reed:______________________

(cheek one) __Sereened __jmproperly Submitted

Comments:

CGO Staff Signature:

Date Returned to Offender:

3 Submission

CGO Initials:_______

Date UGI Reed:______________________

Date CGO Reed:______________________

(cheek one) __Screened __jmproperly Submitted

Comments:

Date Returned to Offender:

1-128 Back (Revised 11-2010)

AppendL-G--

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 12 of 33

Texas Department of Criminal Justice

OFFICE USE ONLY

jIJI OFFENDER GRIEVANCE FORM

/S542 Grievance #: j7
Date Received: r2 ,"2? /'/5'

Date Due:

Grievance Code:

OffenderName:SC0tt L. Gibson

TDCJ# 699888

jJnit:

A. H u h e s

Housing Assignment: 1 7 n

7?

5 Wi

Unit where incident occurred: A . H U g h e s Un i t

Date Retd to Otfender APR 1 2015

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when appealing the results of a disciplinary hearing.
Whodidyoutaikto(name,title)? E)ClUSive Directer & IJTMR po1iyamkai_aWhen? 2 1 7 t5

What was their response? none

What action was taken?

none

State your grievance in the space provided. Please state who, what, when, where and the disciplinary case number if appropriate The Director of TDOJ and UTMB policy makers who are directly responisihin for
creating and enforcing TDCJ's ban on sex reassignment surjery are:violating my constitutional rights under the 8th amendment because this ban is based on a

blanket policy that prohibits any transgender inmate to receive this medicalLy necessary treatment sbsent evaluation of the inmate's specific medical needs
because my Doctor cannot even consider sex rpassigntment surey_ for viable treatment options to treat the actual causegnder dysphoria which puts my

health and safetvjn substantial

..._aylifE in iry

ftPP1-.

Gender Dysphoria is a serious

risk because I stay medical condiction.

depressed and it TDC has a legal

nffec.±....
-
objgatior

to provide me care that mets purdent standard of care messured by orofessionaL

standards of the community, tailored to an inmate's particular medical con-

seideration. See BURRETT V. COPPLAN, 292 F. Supp. 2d 281 (D.N.H. 2003) TDCJ

canot provide me this this type of care when it has a blanket policyin place

that prohibits my Doctor from making a medical determination of my medical

needs and provide me with treatment that actual treats the actual cause of

my illness!

IN FIELDS V. SMITH. 653 f.3d 550. 556 f7th cir. 2011 )Ih. Court rulad tha_t
a statute prohibiting hormone therapy and sex reassignment suriery for any

prisoner violates the 8th Amendment because sucj_farm of medically necessary to treat "some" inmates adequately.

NOTE: I AM NOT REQUESTING A SEX CHANGE AT 11-115 TIME! I'm only trying to
get TDCJ to recognize that sex reassignment surjery is a medically_necessary
tand I'd like to see it added to ITs health care policy!

1-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER)

Appendix F

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 13 of 33

ActionRequestedtoreso1veyourComp1aint.0 change the policy and add sex reassignment sur

jery to the policy

Offender Signature Grievance Response:

Date

/5

YtCrthhreeeooevaaunipltsrdtmoehaidlteliinlcnoaeeytnteg.sadsa,FestuiG.kenfePneibltlnreifdlsareieensvureeenCIldtus.oMuseYebndHstortiCthotuaypePnaotDiarin1eaniiitsCtoe1ioaYnd-r6l.dt0YGshetrtee-oopomu1mrie.anGenlrenItteha(tnrTaleedlhcrgeheeerraeiaivtDaelmitlvnhytahegsnncpscattheresooerefvparliirtOoacmo)aeec.edsenPnsidaotsfnelfybidorcoyrisaueGurswheteiiaarlntveirdzehecieeInnfrinugovtDrtiettnhyrchgsheseeparaxihnndmogfeoreeqirdnaumtaoapatrleelr
complaints process before filing a formal grievance.
APR 14 2015

Signature Authority:
If you are dissatisfied with the Step I response, you may submit a Ste p State the reason for appeal on the Step 2 Form.

i 1

1 _

' Date:

I (

12 to the Unit Grievance Investigator within 15 days from the date of the Step 1 response.

Returned because:

*Resubmit this form when the corrections are made.

O 1. Grievable time period has expired. 0 2. Submission in excess of 1 every 7 days. * o 3. Originals not submitted. *
0 4. Inappropriate/Excessive attachments. * 0 5. No documented attempt at informal resolution. *
6. No requested relief is stated. *
0 7. Malicious use of vulgar, indecent, or physically threatening langua
t:i 8. The issue presented is not grievable.
0 9. Redundant, Refer to grievance #_________________________________
iJ 10. Illegible/Incomprehensible. *
O 11. Inappropriate. *
UGI Printed Name/Signature:
Application of the screening criteria for this grievance is not expected to adversely Affect the offender's health.
Medical Signature Authority:

OFFICE USE ONLY

Initial Submission

UGI Initials:___________

Grievance #:
Screening Criteria Ued:

"ecd from Offender:

ed toOffender:

.i5SiOfl

UGI Initials:__________

nce________________________________

;eening Criteria Used:

Date Recd from Offender:

Date Returned to Offender:

p-Submission

UGI Initials:__________

Grievance #:

Screening Criteria Used:

Date Recd from Offender:

Date Returned to Offender:

1-127 Back (Revised 11-2010)

Appendix F

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 14 of 33
-

OFFICE USE ONLY

Texas Department of Criminal Justice Grievance #:7O/S? 9'(2 (&

STEP 2

OFFENDER

GRIEVANCE FORM

Offender Name:_____B_c_o_t_t__L_y_n__n__G_i_b_s_o_n_____

Unit: A. h U ph e s U fl it

Housing Assignment:

ç'

Unitwhereincidentoccurred:13 Hughes unit

UGI Reed Date:______________
IIQ Recd Date: APR 2 0 2015
Date Due:
('c2 1.4
Grievance Code:
Envestigator 1D#:
Extension Date:

You must attach the completed Step I Grievance that has been signed by the Warden for your Step 2 appeal to be accepted. You may not appeal to Step 2 with a Step 1 that ha" been returned unprocessed

Give reason for appeal (Be Specific). Jam dissatisfied with the respo;se at Step] because... My step one wasn't addressed! My clain protains exclusively about TDCJ's ban on sex reassignment surjery! I!! I'm requesting this office to
order the Directorij and UTMB to rescind this ban because it is being used

to deny me treatment that would (actualy) treat the cause of my illness! The treatment I'm recieving now (doesn't) actual treat the real cause of
my gender dysphoria! In fact, I'm not even receiving the treatment that the Doctors who diagnosed me recommended that I Ie placed onl These'. following
standard of care, recommended that I be Diaced ort fma1e hormones, However, I still haven't been plced on the.m.for pretexual reasons! Dr.Nlckenney at

IJTMB told ins that he can't put me on estrogen until my testosterone is suppressed to a low level due to blood clots! But I don't have a history of

blood clots! True enough, estrogen can cause blood clots but I don't have

a personal history of blood clots. lilhen I explained this to him, and explained to him that I'm fully aware about hormone treatment, he told me that

he still can't put me on estronen until TDCJ approves it! so his inital

reason was pretexual to cover up that TDCJ still blocking this treatment! Besides, Dr. Green on my unit told me that as long as he is the Doctor. I

will never get put on female hormones because I'm a man! I'm willing to take polygraph test to prove this! I have encountered strong resistance about

getting this treatment, and I'm not going to accept it! I'm going to let

the Federal Courts address this problem! Plus I'm trying to get my support

group have l000s of people call TDC.J every day for a month to draw attent-

1-128 Front (Revised 11-2010)

YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER)

Appendix G

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 15 of 33
ion to this unconstitutional policy, and I'm filing complaints with. the PC because TDCJ isn't following the Standard of care!

Offender Signature: (C2UL(T'
Grievance Response

C"

/ / Date:

(" / /5

In your Step 1 Medical Grievance, youstated you have been denied access to file your medical complaints with the UTMB officials. You stated you wrote a complaint about TDC's refusal to add Sex Reassignment Surgery and laser hair removal to policy for offenders wanting treatment for Cender Identity Disorder You are requesting the policy be changed to include the surgery and hair removal
Review of the Correctional Maned Health Care Policy G-51 (i-Treatment of Offenders with Intersex Disorder, Gender Identity
Disorder or Gender Dysphoria ds's not designate Sex Reassignnent Surgery or laser hair removal as part of the treatment protocol for Gender Identity Disorder. Policies are not revised by the University or at the unit level. Review of the medicakecord reveals documentation showing you ae being treated for this disorder in accordance with the Correctional Managed Health Care Policy. If you feel your condition has changed, or warrants further evaluation, you may wish to submit a Sick Call Request (SCR) to discuss your concerns with a licensed medical provider.

STEP II MEDICAL GRIEVANCE PROGRAM OFFICE OF PROFESSJONj. STANDARDS TDCJ HEALTH SERVICES DMSION
Signature Authority:____________________________________________________________ Date:

j I 15

Returned because: *Resubmit this form when corrections are made.
O -1. Grievable time period has expired. O 2. Illegible/Incomprehensible.* O 3. Originals not submitted. * 0 4. Inappropriate/Excessive attachments.* O 5. Malicious use of vulgar indecent, or physically threatening language. O 6. Inappropriate.*

OFFICE USE ONLY

InitialSubmission

CGO Initials:

Date UGI-Recd:__________________________________

Date CGO Reed:________________________________

(check one) _j_Screened

Improperly Submitted

Comments:

Date Returned to Offender:_________________________

Z" Submission Date UGI Recd:

CGO Inilials:

Date CGO Recd:________________________________

(check one) __Screened __jrnproperly Submitted

Comments:

CGO Staff Signature:

Date Returned to Offender: 3 Submission

CGO Initials:

Date UGI Reed:

Date CGO Reed:________________________________

(check one) __Screened __jrnproperly Submitted

Comments:

Date Returned to Offender:

1-128 Back (Revised 11-2010)

Appendix G

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 16 of 33 SEP 0 9 201k

Texas Department of Criminal Justice

STEP 2

OFFENDER

GRIEVANCE FORM

Offender Nameti3// 4, cb,o

TDCJ#

Unit: i2 ikAL5

Housing Assignment: b. £ )

Unit where incident occurred: /Z

-5 (-tn

OFFICE USE ONLY
%Q Grievance#:iOJq )
UGIRecd Date: iUN 022014
HQRecdDate:JUN 05 2014
Date Due:
Grievance Code: O '6 (f2
Investigator ID#:
Extension Date:

You must attach the completed Step 1 Grievance that has been signed by the Warden for your Step 2 appeal to be
accepted. You may not appeal to Step 2 with a Step 1 that has been returned unprocessed.

Give reason for appeal (Be Specific) Jam dissatisfied witJ rpn1ye at Step 1 because

L)i' f2/cj,-r

/5

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tn/t!

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.c

-2010)

YOUR SIGNATURE IS REQUIRED ON BACK OF THIS

Appendix G

tiI /// cifr2/
5: 2/ cc, 4//(A/'ci V

c/E/S i4 3': / /5 flc7/15t' c1ezJ,

Case 6:15-cv-00190-WSS 7D-ocumC e9n"tI)1 Filed.c0Y6c/0,/18/15 dPage 17 of''3,k3s 've&

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c1t'*'C' / Offender Signature:

S Date:

Grievance Response:
In your Step I medical grievance, you stated you have been denied treatment for his Gender Identity Disord. This
issue was previously addressed in grievance #2014149791 and will not be revisited at this time.

Signature Authority:

STEP II MEDCAL GRECE PRO
OTuhFJCHJCurEurOa1LrPsnRrC.rE-SpSx'n 1. T'r'..Th CS

Date:

--I

Returned because: *Resubmit thisform when corrections are made.
O 1. Grievable time period has expired.

OFFICE USE ONLY

Initial Submission

CGO Initials:

Date UGI Recd:_____________________________

O 2. Illegible/Incomprehensible.*

Date COO Reed:______________________

O 3. Originals not submitted. *
0 4. Inappropriate/Excessive attachments.*
0 5. Malicious use of vulgar, indecent, or physically threatening language.

(cheek one) __Screened _jmproperly Submitted

Comments:

Date Returned to Offender:____________________

Submission

CGO Initials:

O 6. Inappropriate.*

Date UGI Reed:____________________ Date CGO Reed:_____________________

(check one) __Screened __jmproperly Submitted

Comments:

CGO Staff Signature:

Date Returned to Offender:

3 Submission

CGO Initials:____

Date UGI Recd:___________________

Date COO Reed:_____________________

(check one) __Screened __jmproperly Submitted
Comments:

Date Returned to Offender:

1-128 Back (Revised 11-2010)

Appendix G

TCeaxsaes6D:15e-pcva-r0t0m19e0n-Wt oSSf

Document
Criminal

1 Filed 06/08/15
Justice

PaOgFeF1I8CEof

33 USE

ONLY

STEP OFFENDER 1 GRIEVANCE FORM

pwq 33 Grievance #&O
5 Date Received:

/a

f,

j /

DateDue:

IJ

Grievance Code:

c 27') (é? /0

Offender Name: 5c,// .. Cib5oq)

TDCJ /i _6

Unit: /2' /-/,.rJie5

Housing Assignment: 1.2 .E

Unit where incident occurred: 4'

Investigator ID #: -_L

1 (.

fl Extension Date:

Date Retd to Offender: MAY 3 0 2OJ

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when

/.// appealing the results of a disciplinary hearing.
Who did you talk to (name, title)? Ol' L) (t,il I ,'tiC'

? 2o1

24 What was their response? D'S

.r *//

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d,tf ?)te,t

What action was t

State your grievance in the space provided. Please state who, what, when, where and the disciplinary case number if appropriate

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/ - i:Jt', Cre,ü 1-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF TifiS FORM

(OVER) Appendix F

ijt&J

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ActionRequcsted.to resolve your. Complaint

rrc

PSi/Ch, ,1

Offender Signature:cc/J2..-. iJ

Grievance Response:

..
5Sc,,'C,/,b Date:

,j...
2

A ad review. ofyourmedical records revea1at you were seen

eyaluated by, Mr. Togo, PA on 04/30/14 fpr your request for

MD hormone replacement therapy due to a Gender Identity Disorder. Mr. Togo referred you to Dr. Greene,

for further assessment.

You were seen.and evaluated hyDr.GreeneonO5/09/14 for.your Gerieridentity Disorder;you werereferred to mental.health because you did not enter the system with a gender identity disorder diagnosis in place. Only a licensed Psychiatrist can make that
Ms..Pollard, 5PM met.with you on.

05/15/14, she explained to you the CMJ{C Policy, G-51.I, (Treatment of Offenders with Intersex Conditions, Gender Identity

-

m CMHC .-. Disorder,-or-Gender-:Dysphoria)-Youhave to-right toreceive. mental.bealth counselingfor which youare.receiv.ing.,.You,.were.npton.
hormone therapy treatment when -ou ente ed the te i t)r c no rndication te stirt it 'it this ime acrordance with

/I' /2J /Z6' 4#9' Polit51'. lçl'reatmant Of-Offenders with-Intersex Conditions,.Gender-Identity Disorder, or Gender Dysphoria). Use established
.......................... .-- medical-and-mental health sick call-procedures should-you need further-evaluation. Please use the initial step in the grievance process

-

-

.

by utilizing the informal complaints process before-filing a-formal grievance

Signature Authority

Date

If you are dissatisfied with the Step 1 response, you may submit a Step 2 (1-128) to the Unit Grievance Investigator within 15 day from the date of the Step 1 response.
State the reason for appeal on the Step 2 Form.

Returned because:

*Resubmit this form when the corrections are IBade.

o i. Grievable time period has expired.

O 2. Submission in excess of I every 7 days. *

O 3.

.-. --
Originals not submitted.

*

---'

------------ ---------------.-,----

0 -

-

;-

4. Inappropriate/Excessive attachments. * .......................

- -

-

-

O 5. -No documented- attempt at informal resolution. *

-

.

.

D-6 No requested relief-is stated. *

0 7 -
0 8

Malicious use of vuIar mdecerit or physically threatening languagi -
The issue presented is not gnevable

0 9 Redundant Refer to grievance #

0 10 illegible/Incomprehensible *

0 * 11 Inappropriate
UGI Printed Name/Signature:

'--

Application of the screening criteria for this grievance is not expected to adversely

Affect the offender,s health

-

-'

-

-

Medical Signature Authority

U J

-

.L -

-.

-

-

-

1-127 Back (Revised 11-2010)

-

-

OFFICE USE ONLY

Initial Submission.-..-

........ -.UGI Initial-s

Grievance#:

.

:

.

Screening-CriteriaUsed:

-
Date Recd from Offender...
-

Date -Returned to Offender:

.

-

Submission Grievance #

UGI Initials:________

Screening Criteria Used

Date Recd from Offender

Date Returned to Offender

aSubmission

UGI Initials:
:

Grieyaucu#;

,,

-

Screening Criteria Used:

DateRecdfromOffender:

Date Returned to Offender

Appendix F

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 20 of 33
ft
SIlTED STATES DISTICT COSIT WEITERI DISTRICT 0? TEXAS

SCOTT I. $11501 PLAIITIF?

)S5

*
15*0 IIVISISTUN.
I AT EL, DEflND**I'S

115CA190
CIVIL ACTISI 10.

I. 3U*ISDICTIU & VENUE
(1). This is a Civil Action authorized by 42 U.S.C. Section 1903 to redress the deprivation, under color of State Law, of rights eicured by The Constitution of The United States.
The court has 3uriediction under 20 U.S.C. sec. 1331 and 1343 (a) (3). Plaintiff seeks declaratory relief pursuant to 28 U.S.C. eec. 2201 and 2202.
iaintiff claims for injunctive relief end authorized by 20 U.S.C. sec. 2283 and 2284 and rule 65 of The Federal Rules of Civil Procedure.
(2). Western District of Texas is an appropriate vanes under 28 U.S.C. sec. 1391 (b) (2) because it is where the evente giving rise to this claim occurred.

11. PASTIES
(3). Plaintiff SCOTT EVIl 01010*, is and wee at all Uses mentioned
hers in a prisoner of The State of Texas in The Custody of The Director at the A. Hughes Unit in Gatiaville, Ix.

Psj

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 21 of 33

(4). Defendant bred t.ivtngston is The Director of TDC3- ID He is legally responsible far the operation of TDC3-ID end the welfare of all inaates in TDC3-ID.
(5). Defendant unknown at this tise - is the policy asker at UTMS. He is responsible for asking TDC3-ID's Medical Policies.
(6). Defendant - The sunicipelity of Gatesvilla, Ix.
(7). Each defendant is sued in their official capacity. At all ties. eantionad in this complaint the defendants ware operating under color of Stats I.sw.

IZ2. FACTS

t (8). Plaintiff 1* a Pre-Op Transsexual. She has legully been

diagnosed with Gender Dyspharte by TDC3ID Doctors

Sky View

Unit and is currently receiving remale Hormones end AntiAndrogena.

(9). Plain*f goes by; VEflUA.
(10). Platntff ha, lived as a Female since she was about 15 years old. She is now 37 years old and sincerely believes that she is a Female trapped in a sale's body and it causes her to have realistic thoughts of coesitting euictda and a? selfcastsrstion.

(ii). Plaintf he. atteapted to commit suicide three tisse since
she hes been incarcerated and has abused her genitals by tying a string around the testicles until they turned a bloody purple color end were so swollen end hurt so bed she could barely walk.

Pg. 2

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 22 of 33
(12). Plaintiff did this in belief thet if she destroyed her testicles it would stop thee from producing testosterones.
(13). Plaintiff doesn't dais she etteapted suicide solely
due to her gender related condition, however, it did play * sinificant part in her suicide atteapte because the constant stress she deals with is at times is overwhelming.
(14). Plaintiff first entered TDC3-ID in 1995. At this time she was verebly requested to be treated and she was told RO, and she just lived as a resale.
(15). In the ensuing years she aterted suffering severe depression and the thoughts of suicide becaus, sore prevalent end realistic.
(16). In 2014, Plaintiff learned that TDC3ID reacted fs
policy that prohibited trenagender inmates who ware not diagnosed in soceity with Gender Identity Disorder, from rectaving treatment.
(17). Plaintiff requested to be treated. Initially medical was still enforcing the old policy. However, after expressing her desire to caet.rate herself, she was sent to TDC3-ID Mental Hospital end was diagnosed with sender Dysphoria, end was recommended to be pieced on resale Hormones.
Cia). Dr. Kevin Mckenney placed her on Estrogen end Spironolsctone.
(19). At this time PlaintIff explained to Dr. McKsnney that she could not live in a wales body because it made htr hate herself, feel deformed, nasty and caused her to have thoughts of soasiting suicide.
(20). Dr. MCK.nney told Plstfltiff that all he could do was place her an Female Narmanes bessus. TDC3.ZD bee a Ban an Sax Reassignment Surjsry.
Pg. 3

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 23 of 33
(21). Plaintiff also requested Dr. Mcennsy to provide her
with a pass that would allow her to live as a Female.
(22), Plaintiff has constetly requested to have her genitals removed and the Defendants have ignored hart or told her NO.
(23). Plaintiff has also requested since TDC-XD has * Ban
on Sex Reassignment Surjery, could she have a pass to live as a female, to dress as a female end to keep her hair at Least 7 inches long at all times, end she yes told NO.
(2k). Plaintiff have put the Defendants on notice, That she $as thoughts øf suicide, self- casteration, and that their Ran on six reala ignment eurjery violates the 8th Amendment of The United States Canetitation. She was told that the Director doe. not respond to inmates request or complaints.
(25). The Dsfandents also aware of Federal Law - case law that shows that a systematic Ban on Sex change Ia Unconstitutional. Because in her complaints she cited the law and explained how TDC3-ID's Ban is Identical to the one that Federal court found Unlawful.
UU. CAU-SE V--AC-TI-DI
(26). The Defendants are Vlàlating Plaintiff's Constitutional Rights under The 6th Amen&$ent by denying her Medical Car. that would treat the actual cauae of her serious Medical condition to enforce a systematic ban on Sax Resecigneent Surjery; which creates a policy of deliberite indifference to her gender dyephorie because they refuse to allow her to be evaluated to determine if Sex Reassignment Surjery would be ó viable medical treatment option based on her medical needs.
Coneeqvently, Plaintiff has to suffer severe mental anguish

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 24 of 33
that osuise her to have realistic thoughts at suicide end of seif-casterstion.
In addition she La forced to live in conditione that pieces herhtf. at substantial risk of harm.
(27), Plaintiff asserts that TDCID ban en Sax Rasesigneent
Surjsry is Unconatttutienst, both ficically end as applied because it tndieoziaLnslly and arbitranily denies trenigender inmates who has severe Gender Dyaphorte Medical Treatment that would treat the actual cause of their illness, Thus it prohibits them from even seeing a Doctor to be evaluated to see whether or not they need Sex Reassignment Surjsry to sdsquety treat their illness.
(20). Plaintiff asserts that as applied to her TDC31D ban
an Sex Reassignment Surjsry is Unconstitutional becaus. it allows the Defendants to ignar her serious medical needs for namnedical reasons which places her life at substantial risk of serious harm because her illness causes her to have realistic thoughts of cosmiting suicide end of self cesteration.
(29). Plaintiff futher asserts that no set of circumstance
exists under which the ban can be valid because TDC3XD has created
a situation where they don't even hive to evaluate a Tranagender inmate for this type of treatment regardless how severe their Gender Dyepharia is. h*ch creates a policy of deliberate indifference to en inmates eertious medical need.
(30). The 0th Amendment prohibits prison official, to tgnar en inmates serious medical needs.
(31). This Ban does just that* It en macta can not be evalusted,
Plaintiff's condition will be ignored end she will only receive acre thatesrely provides treatment to reduce the pain it cause,
Pg S

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 25 of 33

(32). This ban is not predicated on any type at medical usttfLcatian rather is based axelusivaly on a blanket policy that indiscriminately bans Sax Reassignment $urjsry would treat Plaintiff adequately,

(33). The defendants have a legal obligation to provide plaintiff with adequate medical oars of quality acceptable when measured by prudent professional standards of the community, tailored
to her specific. meda.l needs, BURRETT V. L0PEN, 292 F. Supp.
2d 281 C.D.N.H. 2003).

(34). Pursuant The World Professional Association for Tranagender Health, Sax reassignment Surjsry is Medically Necessary to treat acme people adequately. Sac LX 1.

(35). Sex Reassignment Surjsry is not cosmetic or slectiva, See LX (2).

(36). The Defendants cannot fulfils this laDe obligution because:

(1).

Ny doctor is prohibttad from following the standard of care for Trenagendar Health,

(2).

He cannot evaluate me or refer me to a specialist to determine if Sex Reassignment Surjery would treat tha actual cause of my illness adequately.

(37). Plaintiff asserts that if hsr Doctor can not evaluate her or follow the standard of care, ha cannot make sound medical
judgment.

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 26 of 33
(3$), The failure to consider an individual inmate's condition in making treatment decisions is precisely ihe kind of conduct that constitutes * substantial departure from accepted professional judgment, end clearly shows that the Defendants are denying to treat Plaintiff to enforce a blenket bed on Sax Reassignment $urjery for nsnaedical reasons.
(39). Plaintiff asserts that the Defendants are aware of the substantial harm of serious risk that Plaintiff faces because
Plaintiff was admitted to TDC3ID'e Msntel Hospital for expressing
her dsetrss to commit suictds and to useterats herself.
(ho), Absent legitimate countervailing consideration, adequate medics] cars rsquiras addressing the actual sauss of the serious medical condition, rather then merely pravtdtng trastsent to
reduce the pain it causes. SLJRRET U. COPUN, 12 P. Supp 2d. 251
C.D.N.H. 2003).
(1). the Defendants stated reason far ds*ytng Plaintiff Sex
Reassignment $uzjsry Lal She don't qualify. See Exhibit (i),
(2). Ms. V. Pollard Tha Hughse'a Unit Medical complaint
coardinstor cads this claim. However, she is not a Doctor nor was pløintttf evaluated by a Doctor therefore her judgment is not based an sound Medical 3udgmant.
(3). Gender Dysphoris is * serious Msdioal condition that u.n cause a person to commit suicide e3petsUy if the person
isn't adequately treated. KD$It.EX V. MALONEY, 221 P. Zd 1$S (0. Mass 2002). See Cx (3).
(fl). Fmala Hormones doss not adequately treats everyonee
actual cause of Gander Dysphoria. See Cx (5)
Pg. 7

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 27 of 33
(45).. In FIELIDS V. SMITH, 656 F. 3d S50,6 (7th air. 2011)
The court ruled that " Asetatute prohibiting hormone therapy and Sex Reassignment Surjery far any prisoner violates the 0th Amendment because same inmates could be msdtcslly necessary to treat acme inmates adsquately.
(46). Plaintiff farther asserts thet the municipality of Satesvifle, Texas teresponsibla for denying Plaintiff Medical Care because The State of Texas caileatly La enforcing a State wide ban on inmetas receiving Sex Reassignment Sur3.ry foX any reason,
(47). This policy has been in affect far over 20 yeats and flat one inmate in The State of Taxes while Incarcerated in oca
ID has ever bean esluated for protanuat Sax Reassignment Sur3sry.
(48). This policy or ban is incompatible with the aanaspt of human dignity and has no pleas in civilized society because denying to treat en prisoner's serious Medical needs is the product of physical torure,
(49). Plaintiff claims that the Defendants stated reason or any claims that they claim is not based on any REAL security assessment or Madicel audgeant because they have never ectuel tested wethar or not providing Plaintiff with Sex Reassignment Surjsry would crest a serious security risk.
PRAYER
Plaintiff as the court to grant her the following relief:
(1). Declaration that the acts and omissions described herein violates her rights under The Conetitittan and Laws of The United States, and
Pg. 0

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 28 of 33

(2). A preliminary and permanent injunction ordering The Defendants to rescind The Ban on Sex Reassignment Surjery and Add this medically necessary treatment to it's Health Care Policy to treat Transgender inmates, and to make the treatment avaliable, and
(3). Take judicial notice of The World Professional Association for transgender health's statements that Sex Reassignment Surjery is Medically necessary treatment - not as proof as treatment, but to estublish that this statement does exist. See FED. R.
E\JID 201 and 801 (c).
(Li). Grant her a jury trail on all issues that are triable by a jury,
(5). Attorney Fees,
(6). And recovery of cost of this suit.

a' S Date

13

ectfu SCOTT L. GIBSON

VERIFICATION

I SCOTT L. GIBSON the Plaintiff in the above complaint hereby verify that the matters alleged herein are true, except as to matters alleged on information and belief, and as to those I believe them to be true & correct. I certify inder penalty of perjury that the foregoing is true and correct.

Pg. 9

SCOTT L. GIBSON

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 29 of 33 To: District cleark's Office

Dear Cleark,

Thank you for your help! will you please submit the enclose legal material to the Court, and let me know once it is
filed. Itreme1y appreciat your assistance in this matter!

Scott Lynn gibson,

/

/

/

JUN 0 8 Z015

CLERK, U.S. D

COURT

WESTERN DSTRCT OF TEXAS

DEPUTY CLERK

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 30 of 33
SCOTT 1!. GIBSON TDCJ-ID # 699888

AFFLiDA VII

My name is: SCOTT U. GIBSON TDCJ-ID #699888 I'm the Plaintiff in the foreqoing Civil Complaint and I submit this Affidavit about the following:
(1) I have been legally Diagnosed with Gender Dysphoria by TDCJ-ID Doctors.
(j)
(2). I'm currently on Female Hormones and Pnti-Androgens.
(3) Dr. Kevin McKenney places me on the medication.
(4). I have lived as a Female from about the age of 14 or 15 years old and I sincerely believe that I'm a Female trapped in a Males body.
(5). This makes me suffer severe Depression that makes me have thoughts of committing suicide and of self-casteration because I feel Deformed, Nasty and it makes me Hate my body to the point I want to Die.
(6). The depression is so severe at times I have to abuse my genitals to cope.

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Pg. 1

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 31 of 33
(7). Since I've been in prison, I have tried to commit suicide 3 times. I can't claim it was all due to my Gender Dysphoria but it stresses me out and little thinqs will oush me to the point I want to Die.
(8). For years, I use to tie a string around my testicles until they turned a bloody purple color and hurt so b3d that I could barely walk. I did this in belief that if I destrayed my testicles it would prevent them from producing testosterone.
(9). I truly believe that if I don't get a Sex change I will end up committing suicide because the older I became the strong my pain gets, as well as the need to abuse my body gets. (10). I have written Medical over 30 times about this and they tell me I will never get a Sex change or he treated.
(11). The Defendants know about the risk I face yet they ignored my request because they claim that they don't respond to inmates complaints. See Ex (5)
(12). I'm afraid to tell TDCJ-ID doctors how close I come to committing suicide or casterting myse].f - Each day because all they will do is put me in a cold room naked and I will have to suffer because it is so cold in their, if I had anythinq to kill myself with, I would! (1 3) . It is hard to talk to medical buut how I feel because they do not - They refuse to hear anything about Sex change; Etc.
Pg. 2

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 32 of 33 (hi.). plus alot of the Doctors are against inmates receiving this type of treatment. I swear under penalty of perjury that the foregoing statements
are true.
511 2/2015
Pg. 3

Case 6:15-cv-00190-WSS Document 1 Filed 06/08/15 Page 33 of 33

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 Case 6:15-cv-00190-RP Document 48 Filed 12/21/15 Page 1 of 2

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

DEC21 2015
CLERK US DISTRIC

WACO DIVISION
SCOTT L. GXBSONIVANESSA

DEPUTY

PLiAINTIFF,
'I.

BRAD UIVINGSTON,ET AIJ.,

DEFENDANTS.

CIVIL ND. W-15-CA-190

MOTION REQUESTING THE COURT TO ML.IJOW PLiAINTIFF TO ADD NEWA NEW DEFENDANT TO HER PENDING 1983 CDMPL!AINT OR TO
AMEND HER COMPLAINT
To The Honorable Judge Smith:
Plaintiff respectfully request this Court to Allow her
to Add Dr. Greene to her Pending suit. The Complaint involves
claims of denial of medical care for her serious medical condition. Her pending suit is also about a lack of care that meets professional Standard of care for transgender inmates.
Plaintiff respectfully, request the Court to approve her mot-
ion

Scott Vanessa) Gibson

1.

Case 6:15-cv-00190-RP Document 48 Filed 12/21/15 Page 2 of 2 NOTICE OF SERVICE
Plaintiff hereby certify that she sent the above motion and complaint to the Defendants by placing the same in TDCJ's mail Box on 12 11,2015 addressed to: Ken Paxton.-Attorney teneral Of TExas Pa Box 12548, capitol Station Austin, Tx 78711
(5)
Scott (Vanessa) Gibson
2.

 
 Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 1 of 13

PRISONER'S CIVIL RIGHTS COMPL.\INT (Rev. 05/201 5)

IN THE UNITED STATES DISTRICT COURT

FOR THE Western

DISTRICT OF TEXAS

I)IVISION

Scott L Gibson (Vanessa) 699888
Plaintifis Name and ID Number
P.. Hughes unit Place of Conflnement
V.
Brad Livingston I)efendanfs Name and Address
Dr. Greene Defendant's Name and Address
Rt. 2 Box 4400 Gatesville, Texas 76587 I)efendanfs Name and Address
DO NOT USE "FT AL.')

CASE NO.__________________
(Clerk will assign the number)

INSTRUCTIONS - READ CAREFULLY

NOT ICE:

Your complaint is subject to dismissal unless it conforms to these instructions and this form.

1. To start an action you must file an original and one copy of your complaint with the court. You should keep a cops' of the complaint for your own records.

2. Your complaint must be legibly handwritten, in ink, or typewritten. You, the plaintiff, must sign and declare
under penal's of perjury that the facts are correct. If you need additional space, DO NOT USE THE REVERSE
SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND WRITE ON IT.

3. You must file a separate complaint for each claim you have unless the various claims are all related to the same
incident or issue or are all against the same defendant, Rule 18. Federal Rules of Civil Procedure. Make a short and plain statement of your claim, Rule 8. Federal Rules of Civil Procedure.

4. When these forms are completed. mail the original and one copy to the clerk of the United States district court for the appropriate district of Texas in the division where one or more named defendants are located, or where the
incident giving rise to your claim for relief occurred. If you are confined in the Texas Department of Criminal
Justice. Correctional Institutions I)ivision (TDCJ-CID). the list labeled as "VENUE LiST" is posted in your unit law library. It is a list of the Texas prison units indicating the appropriate district court, the division and an address list of the divisional clerks.

Rev. O5IL

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 2 of 13
FILING FEE AND INFORMA PA UPERIS (1FF)
1. In order for your complaint to be filed, it must he accompanied by the statutory filing fee of $350.00 plus an administrative fee of $50.00 for a total fee of S400.00.
2. If you do not have the necessary funds to pay the fee in full at this time, you may request permission to proceed inform, pauperLc. In this event you must complete the application tQ proceed in fbrma paliperis. setting forth information to establish your inability to prepay the fees and costs or give security therefor. You must also include a current six-month history of your inmate trust account. If you are an inmate in TDCJ-CID. you can acquire the application to proceed in fbrma pauperis and the certificate of inmate trust account, also known as in fi.rma pauperis data sheet, from the law library at your prison unit.
. The Prison Lhiga ion Reform Act of 1995 (PLRA) provides '... if a prisoner brings a civil action oi files an
appeal in förmcz pauperis, the prisoner shall be required to pay the full amount of a filing fee." See 28 US.C. 1915. Thus, the court is required to assess and. when funds exist, collect, the entire filing fee or an initial partial
filing fee and monthly installments until the entire amount ofthe filing fee has been paid by the prisoner. If you submit the application to proceed in /brma pauperis, the court will apply 28 U.S.C. § 1915 and, if appropriate,
assess and collectthe entire filing fee or an initial partial filing fee, then monthly installments from your inmate trust account, until the entire $350.00 statutory filing fee has been paid. (The $50.00 administrative fee does not apply to cases proceeding in fbrrna pauperis.)
4. If you intend to seek intbrma pauperis status, do not send your complaint without an application to proceed in/ormapauperis and the certificate of inmate trust account. Complete all essential paperwork before submitting
it to the court.
CHANGE OF ADDRESS
It is your responsibility to inform the court of any change of address and its effective date. Such notice should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any motion for any
other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal
of your complaint pursuant to Rule 4 1(b), Federal Rules of Civil Procedure.
1. PREVIOUS LAWSUITS:
A. Have you filed any other lawsuit in state or federal court relating to your imprisonment? ._YES_NO
B. If your answer to "A" is "yes," describe each lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper. giving the same information.)
Approximate date of filing lawsuit: 2004/2005/pending law suit 2015
2. Parties to previous lawsuit:
Pintiff(s) Scott_L._ibson Defendant(s) UTM Officials,Bran Livingston
3. Court: (If federal, name the district: if state, name the
4. Causenumher:Lost record/Pending law suit w-1 5-ca-i 90
5. Name ofjudge to whom case was assigned: Pending : Judge Smith 6. Disposition: (Was the case dismissed, appealed, still pending?)__Denied/pending
7. Approximate date of disposition: 2005
Rev. 05/15
2

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 3 of 13

PLACE OF PRESENT CON F!NEMET: A. Hughes unit

EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted all steps of the institutional grievance procedure?

X YES

Attach a copy of your final step of the grievance procedure with the response supplied by the institution.

IV PARTIES TO THIS SLIT:
A, Name and address ofplaimiiI;, Scott L. Giben 699888

Rt2 Box 6400/Gatasvil].e, Tx 76597

B. Fuilname of each defendant, his official position, his place ofemployment, and his full mailing address.

i)cfindant

Bred Livingston
I:

Po Box 44/ Hntavi11e Ix

Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you. nforcinQ unconatituttonal oolicv that denies tr'snaander inmRt md1i1

I)efendant

Dr. D. Greene
-..,, .........................................

xRexgaxx2x Rt 2 Box 4400

Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed ou.

Denying ma the treatment my Doctor at IJTMB prescribed .me Because TDCJ

Hea1thcarpoLicyto_attransgende.inmates.. -....................................

-

does

not

have

the

1)efcndant #3:

Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.

I)elètidant 4:
Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.

i)etndant 5: Briefly describe the act(s) or omission(s) of this defendant which you claimed harmed you.

Rev. 051t5

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 4 of 13
CAUSE 0 ACTION
1. Dr. Greene is violating Plaintiff's constitutional right. under the 8th Amendment of the United St.t.. Constitution by denying her the treatment her Doctor prescribed her to treat her severe Gender Dyspharia, and continues to be deliberate indifferent to her illness by refusing to allow her to live as a female which is causing her dysphorts to worsen and causing her savers depreasion.
SERIOUS MEDICAL CONDITXOP4
2. Plaintiff has a legal diagnosis of Gender Dysphoria. She iaa diagnosed by TDC Doctora and she is currently taking:
1. Latrogan-premarin 2.50 rage, 2. Spirolactane 200 age, 3. Finastreride 5. rags. To treat or provide relief for her Gender Dysphorta.
3 kn 7 28, 2015 Plaintiff's primary Doctor at UTMB-Dr. K. Mcktnney prescribed her the above medication, and the reallife experience and ordered that ahe be provided the items to freely live as a female.
I,, Hi. order did not apecify exactly what itena Plaintiff
ahauld be allowed to have, However, the reallife experience
is in conpliance with the World Professional Association for Tranegender Health Carl's Standard of care, end is recognized as affective therapy to treat Gender Dysphoria.
The Standard of care recommenda the fottotng therapy:
1.

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 5 of 13
(1) Hermone therapy, (2) Real4tfe experience and (3) sex
reassignment surgery.
This therapy i. called the Triadic therapy end the medical Community accepts it as medically necessary treatment when prescribed by a Doctor to treat Gender Dyspharta.
DENIAL or TRESTMLNT
5. Dr. Greene summarily dented Plaintiff's Doctor's orders based on the fact that 10C3 does not have a health care policy in place that provides tranegender inmates the real-life experience nor does 10C3 allow TraneGender inmates to live as females or express their gender. See Lx (A)
On 9 21,15 Plaintiff spoke to Dr. Greene about why he den.. tad her the treatment her Doctor prescribed her.
Dr. Greene told Pleinttff " In eli. my years as a Doctor, I have never authorized a "Men" a peas to live as a female and I will neveri do it t"
He emphezed never by dreging it out so it sounded more ltke Neveeer.
Plaintiff explatntad to him that the reel-life experience La a serious part of her treatment, and that her Doctor done authorized it.
Dr. Greene told Plaintiff: "I don't care what UTMB prescribed you. They prescribe slot of treatment that TDC does not providel"
Plaintiff pressed the issue and axplainted that he was violating clearly established law end professional standards of care, and he told Plaintiff"
2.

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 6 of 13
I will never do that until TDC'a policy clearly provicoe
you this type of trastmantf" 6. Dr. Greene ta not a Gender Dyephorta epecialiet and has never actually treated this medical condition. Therefore he is not qualifed to deny Plaintiff thia treatment nor is he legally qualified to treat Gender Dyiphorte.
3.

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 7 of 13
V. STATEMENT OF CLAIM:
State here in a short and plain statement the facts of your case, that is, what happened, where did it happen, when did it happen, and who was involved. Describe how çh defendant is involved. You need not give an legal arguments or cite an cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach extra pages if necessary, but remember the complaint must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR COMPLAINT.

VI. RELIEF
State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or stgthrataautntets.thpoelraeialncittmiifnfaarndytheiomnitjsruseniacottnmiseonnt,viotphleaarttmeiswneaptlpearieinnslc'irufinfbc'etsdionc,onsdteictluatriaotniaoln rights,

VII. GENERAL BACKGROUND INFORMATION: A. State, in complete form, all names you have ever used or been known b including any and all aliases. Scott Lynn Gibson, lii vounqster joy. vanessa
B. List all TDCJ-CID identification numbers you have ever been assigned and all other state or federal prison or FBI numbers ever assigned to you.
699888

VIII, SANCTft)NS:

A. Have you been sanctioned by any cotirt as a result of any lawsuit you have filed?

YES

No

B. If your answer is yes," give the following information Ibr every lawsuit in which sanctions were imposed. (If more than one. use another piece of paper and answer the same questions.)

I. Court that imposed sanctions (if federal, give the district and division):
2. Case number:

3. Approximatedatesanctionswereimposed: 4. Have the sanctions been lifted or otherwise satisfied?

YES NO

Rev. 05/15
4

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 8 of 13

C. 1-las any court ever warned or notcfied you that sanctions could be imposed?

YESN()

ft Ifyour answer is 'yes," give the following information for every lawsuit in which a warning was issued.
(If more than one, use another piece of paper and answer the same questions.)

1. Court that issued warning (if federaL give the district and division):_______ 2. Case number:
3. Approximate date warning was issued:_

........
_______

Executed on: DA1

7
/

(Signature of laintiff)

PLAINTIFF'S I)ECLARATIONS

I. I declare under penalty of perjury all facts presented in this complaint and attachments thereto are true
and correct.
2. 1 understand, if I am released or transferred, it is my responsibility to keep the court informed of my current mailing address and failure to do so may result in the dismissal of this lawsuit.
3. 1 understand I must exhaust all available administrative remedies prior to filing this lawsuit.
4. 1 understand I am prohibited from bringing an infbrmapauperis lawsuit if I have brought three or more civil actions or appeals (from a judgment in a civil action) in a court of the United States while
incarcerated or detained in any facility, which lawsuits were dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief may be granted, unless I am under
imminent danger of serious physical injury.
5. I understand even if I am allowed to proceed withoutprepaynient ofcosts,! am responsible for the entire
filing fee and costs assessed by the Court. which shall be deducted in accordance with the law from my inmate trust account by my custodian until the filing fee is paid.

Signedthis

Jdayof_L2

tDay)

(month)

.20/3'
(year)

(Signature of Plaintiff) WARNING: Plaintiff is advised any false or deliberately misleadinginformation provided in response to the above questions may result in the imposition of sanctions. The sanctions the court may impose include, but are not limited to, monetary sanctions and the dismissal of this action with prejudice.
Rev. 05/15

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 DP!cag0e 99 o2f01153

Texas Department of Criminal Justice

STEP 2

OFFENDER

GRIEVANCE FORM

Offender Name:

i

TDCJ #

Unit:

Housing Assignment: /2

Unit where incident occurred:

i?, lit

(j

OFFICE USE ONLY

2c3 Grievance

D)(d3)

t?J 5 UGI Recd Date: JO
OCT 30 1U15
HQ Recd Date:

DateDue: \_(1_i
95 Grievance Code: (

Investigator ID#:

Extension Date:

You must attach the completed Step 1 Grievance that has been signed by the Warden for your Step 2 appeal to be
accepted. You may not appeal to Step 2 with a Step 1 that has been returned unprocessed.
Givereason for appeal (Be Specific). lam dissatisfied with the response at Step 1 because...

1-128 Front (Revised 11-2010)

YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER) Appendix G

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 10 of 13
c

Offender Signature:

Date:

Grievance Response:

In your Step 1 medical grievance, you stated you are being denied a pass to be provided the items you need to live openly as a female as ordered by the specialist at Hospital Galveston. You are requesting to be issued a pass to live openly as a female and be transferred to a female unit.

In reviewing your complaint and medical records, it appears that you are receiving treatment for your condition. Your request to order Dr. Greene to issue a medical pass to live in a female prison unit is denied. The function of medical passes is limited, and medical providers do not have authority to assign offenders to prison units. The function of assigning offenders to specific prison units is a responsibility of Classification. Any orders received at Hospital Galveston speciafty clinics are recommendations only and the final decision for final orders is made by the unit providers. You may wish to submit a Sick Call Request to medical if you feel your situation warrants further evaluation. 2.02

Signature Authority:

STEP II MEDICAL GRIEVANCE PROGRAM OFFICE OF PROFESSIONAL STANDARDS TDCJ HEALTH SERVICES DIVISION

Date:

1 tLo LE

Returned because: *Resubmit this form when corrections are made.

OFFICE USE ONLY

E 1. Grievable time period has expired.
0 2. Illegibleflncomprehensible.* 0 3. Originals not submitted. * 0 4. Inappropriate/Excessive attachments.*

Initial Submission

CGO Initials:

Date UGI Reed:_______________________

Date COO Reed:______________________

(check one) _Screened _Jmproperly Submitted

Comments:

Date Returned to Offender_______________________

O 5. Malicious use of vulgar, indecent, or physically threatening language. 2" Submission

CGO Initials:________

O 6. Inappropriate.*

Date UGI Reed:______________________ Date COO Recd:______________________

(check one) _Screened

Improperly Submitted

Comments:

CGO Staff Signature:

Date Returned to Offender:

Submission

CGO Initials:______

Date UGI Reed:______________________

Date COO Reed:______________________

(check one) _Screened jmproperly Submitted

Comments:

Date Returned to Offender:

1-128 Back (Revised 11-2010)

Appendix G

Orikc OCCasCeQ6J:15-cv-00(190-RP Document 55 Filed 03/01/16 Page 11 of 13

Texas Department of Criminal Justice

OFFICE USE ONLY

OFFJDER
STEP 1 GRIEVANCE FORM

g/2..c//J Grievance#: c9O/t
Date Received:

%t53

if DateDue:

Grievance Code:

OffenderNamé: Scott L. Gibson

TDCJ# 699888

A. hughes Unit:

1 2-E-38 Housing Assignment:

Investigator ID #: Extension Date:

Unit where incident occurred: A . H u g he s

Date Rctd to Offender: OCT 1 9 2015

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when

.sppeahng the results of a disciplinary hearing

Vhodidyoutatkto(name,titie)?

Greene

_When?9 1 5

Whatwastheiiresponse? I will not issue you a pass to live asafemale/policy not corn

let\veiia action was taken? Denied ray Doctor's orders.

State your grievance in the space provided. Please state who, what when, where and the disciplinary case number if appropriate

and ordered that I be

On 9 21,15 I spoke to Dr. Greene at about 3:30 aboutau-
thorizing the pass my DoctDr prescribed me so I could get the items
to freely live asafemale. He told me he would not issue me this
type of pass or allow me to have the items to live as a female.
I tried to show him the IiJORL.D PROFESSIONAL ASSOCIATION
OF TRANSGENDER HEALTH CARE,A-ACLU REPORT ENTITLED MEDICAL CARE that
states that prison Doctors have to follow the Standard of care, and I explained that he was violating clearly esblished law by interferririg with the treatment my Doctor ordered for me He teld me he wouldn't read it because these standards were free world standards, and TDCJ has not completed their policy to allow this type of tre a t me n t.
dditionally explained to him that my Doctor was authorized by TDCJ to Treat GID and to begain my Estrogen treatment, and that the real-life experience is incomplience with The 500, and since a GID Specialist prescribed it to me to treat my serious medical condition, it is medically necessary.
He told me he has never issued no pass like this and he would not.

rn -
gender health care. So he isfully aware that the real-life exper-
ience is medically necessary. Dr. Greene isn't a OlD specialist

1127 Front (Revised 11-2010) YOUR SIGNATURE IS kEQUED ON BACK OF THIS FORM

(OVER)

Appendix F

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 12 of 13 So it- is inappropriate for him to vetoed a specialist's orders, espeb-

-

çially;when hekas admitted that he is not a GID specialist and has'

never treated GID.

Dr. Greene is being delibet'indifferent to my erious medical condition by denying me thetreatment my Doctor prescribed me, and
he is. violating clearly established law that prohibits prison officials to enterfer with treatment prescibed. Estelle v. Gamable,429 U.S. 97, iJIS, 97 S.CT. 285 (1976). By doing so, he- is also violating

my constitutional rights under the 6th and 14th Amend, of the U.S.

kel him this une mkin me ee---elj

--eaae, e-n-sI he

ctionRequestedtoreso1veyourCompiaint.,1 request a full inv-estigation in-to my complainf and

to order-Dr. Greene to iseue me the pass to live as a female, and to

orovicle

witItfle items tio- 1ee1v 1fi an a 1mn1

)ffenddr Signature

Date:

;rievance Response:

Un-substantiated. Your request jsnt in accordane with.the published policy; which at this time
does not address housing, clothing, or special passes. Recommend that you continue to utilize the informal complaints process by submitting an 1-60 to the Complaints Coordinator for resolution prior to submitting a formal grievance.

1M& Signature Authority
If you are dissatisfied with the Step 1 response, you may submit a Step 2 (I- 28) to the Unit Grievance Investigator wit
State the reason for appeai on the Step 2 Form.

Returned because:

*Resubmit this form when the corrections are made.

Date
15 days from the date of th Ste 1 response.

o i. Grievable time period has expired. 0 2. Submission in excess of 1 every 7 days. *
03. Originals not submitted. *
04. Inappropriate/Excessive attachments. *
O 5. No documented attempt at informal resolution. * 0 6. No requested relief is stated. *
7. Malicious use of vulgar, indecent, or physically threatening language. *
0 8. The issue presented is not grievable. O 9. Redundant, Refer to grievance 0 10. ifiegible/Incomprehensible. * 0 11. Inappropriate. *
UGI Printed Name/Signature:
Application of the screening criteria for this .grievance is not expected to adversely Affect the offender's health.
Medical Signature Authority:__________________________________________

OFFICE USE ONLY

Initial Submission

UGI Initials:___________

Grievance #: Screening Criteria Used:

Date Recd from Offender:

Date Returned- to Offender:

2'-Submission Grievance #:

UGI Initiais:_________

Screening Criteria U,ed:

Date Recd from Offender:

Date Returned to Offender:

1''-Submission Grievance #:

UGI Initiais:__________

Screening Criteria Used:

Date Recd from Offender:

Date Returned to Offender:

1-127 Back (Revised 11-2010)

Appendix F

Case 6:15-cv-00190-RP Document 55 Filed 03/01/16 Page 13 of 13

h 2, 8 y
7

CIeA('
2

f
'

Ii(/ I

/

/?&
7(

 
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 General Docket United States Court of Appeals for the Fifth Circuit

Court of Appeals Docket #: 16-51148 Nature of Suit: 3550 Prisoner - Civil Rights Scott Gibson v. Bryan Collier, et al Appeal From: Western District of Texas, Waco Fee Status: In Forma Pauperis

Docketed: 09/16/2016 Termed: 03/29/2019

Case Type Information: 1) Prisoner w/ Counsel 2) State 3) Civil Rights

Originating Court Information:

District: 0542-6 : 6:15-CV-190

Originating Judge: Walter S. Smith, Jr., U.S. District Judge

Date Filed: 06/08/2015

Date NOA Filed:

Date Rec'd COA:

09/12/2016

09/12/2016

Prior Cases: None

Current Cases: None

Panel Assignment: Panel: JES RHB JCH Date of Hearing: 12/03/2018

Date of Decision: 03/29/2019

Date Completed: 03/29/2019

SCOTT LYNN GIBSON, also known as Vanessa Lynn
Plaintiff - Appellant
v.
BRAD LIVINGSTON Terminated: 11/14/2016
Defendant - Appellee

Stephen L. Braga Email: stephen.braga@bracewell.com [COR LD NTC Pro Bono - Appointed] University of Virginia School of Law Appellant Litigation Clinic 580 Massie Road Charlottesville, VA 22903

BRYAN COLLIER Defendant - Appellee

John Clay Sullivan Email: john.sullivan@morganlewis.com [COR LD NTC Government] Office of the Attorney General Office of the Solicitor General P.O. Box 12548 Austin, TX 78711

Richard Huntpalmer Direct: 512-463-2080 [COR NTC Government] Office of the Attorney General for the State of Texas 300 W. 15th Street William P. Clements Building Austin, TX 78701

Heather Kriscenski Rhea [COR NTC Government] Office of the Attorney General Law Enforcement Defense Division P.O. Box 12548 Austin, TX 78711-2548

DR. D. GREENE Defendant - Appellee

John Clay Sullivan [COR LD NTC Government] (see above)

SCOTT LYNN GIBSON, also known as Vanessa Lynn, Plaintiff - Appellant
v. BRYAN COLLIER; DR. D. GREENE,
Defendants - Appellees

09/16/2016
2 pg, 47.82 KB
09/21/2016
2 pg, 73.46 KB

PRISONER CASE WITH COUNSEL docketed. NOA filed by Appellant Mr. Scott Lynn Gibson [16-51148] (MVM) [Entered: 09/16/2016 02:54 PM]
INITIAL CASE CHECK by Attorney Advisor complete, Action: Case OK to Process after monitoring for Doc. 74 - Motion for Reconsideration. [8314550-2] Initial AA Check Due satisfied.. Awaiting District Court Action (motion for IFP and motion for

10/05/2016
10/05/2016
10/05/2016
10/05/2016
5 pg, 87.28 KB
10/05/2016
10/07/2016
10/12/2016 10/20/2016
5 pg, 200.1 KB
10/24/2016
4 pg, 145.06 KB
10/25/2016
1 pg, 52.12 KB

reconsideration pending) deadline due on 10/06/2016 [16-51148] (MVM) [Entered: 09/21/2016 03:02 PM]
DISTRICT COURT ORDER of 09/27/2016 granting IFP ( IN DETAIL) in accordance with the Prison Litigation Reform Act (PLRA) for Appellant Mr. Scott Lynn Gibson. Initial partial filing fee assessed.Awaiting District Court Action deadline satisfied [1651148] (MBC) [Entered: 10/05/2016 01:07 PM]
DISTRICT COURT ORDER of 09/27/2016 denying motion for reconsideration, doc 74 (IN DETAIL) [16-51148] (MBC) [Entered: 10/05/2016 01:08 PM]
ELECTRONIC RECORD ON APPEAL REQUESTED FROM DISTRICT COURT for 6:15-CV-190. Electronic ROA due on 10/20/2016. [16-51148] (MBC) [Entered: 10/05/2016 01:09 PM]
BRIEFING NOTICE ISSUED A/Pet's Brief due on 11/14/2016 for Appellant Scott Lynn Gibson. [16-51148] (MBC) [Entered: 10/05/2016 01:13 PM]
APPEARANCE FORM received from Mr. Richard Huntpalmer for Mr. Brad Livingston for the court's review. Lead Counsel? Yes.. THE IMAGE FOR THIS FILING WILL NOT BE VIEWABLE AS IT CONTAINS SENSITIVE INFORMATION. [16-51148] (Richard Huntpalmer ) [Entered: 10/05/2016 04:30 PM]
APPEARANCE FORM FILED by Attorney Richard Huntpalmer for Appellee Brad Livingston in 16-51148 [16-51148] (RAJ) [Entered: 10/07/2016 03:35 PM]
ELECTRONIC RECORD ON APPEAL FILED. Exhibits on File in District Court? No. Electronic ROA deadline satisfied. [1651148] (DDL) [Entered: 10/12/2016 08:11 AM]
MOTION filed by Appellant Mr. Scott Lynn Gibson to appoint counsel [8338556-2]. Date of service: 10/13/2016 [16-51148] (CNF) [Entered: 10/20/2016 02:30 PM]
MOTION filed by Appellant Mr. Scott Lynn Gibson to supplement the record on appeal with attached exhibits [83409812]. [16-51148] (CNF) [Entered: 10/24/2016 04:03 PM]
CLERK ORDER denying motion to supplement the record on appeal filed by Appellant Mr. Scott Lynn Gibson [8340981-2] [16-51148] (CNF) [Entered: 10/25/2016 08:13 AM]

10/28/2016
2 pg, 66.57 KB

DOCUMENT RECEIVED - NO ACTION TAKEN. No action will be taken at this time on the record excerpts received from Appellant Mr. Scott Lynn Gibson because documents are part of the record on appeal and appellant's is not required to file record excerpts (also portions of this document are part of the sealed record on appeal ) [16-51148] (MVM) [Entered: 11/03/2016 11:58 AM]

10/28/2016

APPELLANT'S BRIEF FILED by Mr. Scott Lynn Gibson. # of

37 pg, 1016.63 KB Copies Provided: 4

A/Pet's Brief deadline satisfied. Appellee's Brief due on

11/30/2016 for Appellee Brad Livingston [16-51148] (MVM)

[Entered: 11/03/2016 02:19 PM]

11/04/2016
1 pg, 42.1 KB

LEVEL 1 EXTENSION REQUESTED by Appellee Mr. Brad Livingston for filing Response to Plaintiff-Appellant's Brief until 12/28/2016 at 11:00 pm. [16-51148] (Richard Huntpalmer ) [Entered: 11/04/2016 03:34 PM]

11/07/2016

EXTENSION RECEIVED for Appellee Mr. Brad Livingston. Extension Granted to and including 12/28/2016. E/Res's Brief deadline updated to 12/28/2016 for Appellee Brad Livingston [1651148] (MBC) [Entered: 11/07/2016 02:57 PM]

11/15/2016
2 pg, 55.59 KB

LETTER OF ADVISEMENT. Reason: Providing parties a copy of the updated case caption [16-51148] (PAC) [Entered: 11/15/2016 12:34 PM]

11/21/2016
4 pg, 137.19 KB

DOCUMENT RECEIVED - NO ACTION TAKEN. No action will be taken on the motion asking court to waive requriement to use tabs to mark excerpts etc. received from Appellant Mr. Scott Lynn Gibson. We are advising appellant that we are taking no action on this motion in light of record excerpts not being required by pro se prisoners. The court will have the entire record to use in reviewing his appeal [16-51148] (CNF) [Entered: 12/01/2016 09:41 AM]

12/28/2016
25 pg, 488.1 KB

SUFFICIENT APPELLEE'S BRIEF FILED # of Copies Provided: 0 Sufficient Brief deadline satisfied. Paper Copies of Brief due on 01/17/2017 for Appellees Bryan Collier and D. Greene. [1651148] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLEE'S BRIEF FILED Brief is insufficinet for the following: title does not agree with the caption of the case; use of the word 'id.' is not permitted when citing to the record on appeal. Instructions to Attorney: PLEASE READ THE ATTACHED NOTICE FOR INSTRUCTIONS ON HOW TO

01/05/2017
0 pg, 0 KB
01/17/2017
01/18/2017 01/23/2017
2 pg, 86.72 KB
02/03/2017
3 pg, 94.17 KB
03/01/2017
4 pg, 144.75 KB
09/14/2017
6 pg, 147.81 KB
09/14/2017

REMEDY THE DEFAULT. # of Copies Provided: 0 E/Res's Brief deadline satisfied. Sufficient Brief due on 01/13/2017 for Appellees Bryan Collier and D. Greene.. Reply Brief due on 01/11/2017 for Appellant Scott Lynn Gibson [16-51148] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLEE'S BRIEF FILED by Mr. Bryan Collier. Date of service: 12/28/2016 via US mail Appellant Gibson; email - Attorney for Appellee: Huntpalmer [1651148] (Richard Huntpalmer ) [Entered: 12/28/2016 05:29 PM]
PROPOSED SUFFICIENT BRIEF filed by Appellee Mr. Bryan Collier in 16-51148 [8389917-2] Date of service: 01/05/2017 via US mail - Appellant Gibson; email - Attorney for Appellee: Huntpalmer [16-51148] (Richard Huntpalmer ) [Entered: 01/05/2017 01:40 PM]
Paper copies of appellee brief filed by Appellee Mr. Bryan Collier in 16-51148 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [16-51148] (MVM) [Entered: 01/18/2017 01:56 PM]
BRIEFING COMPLETE.Reply Brief deadline canceled [1651148] (MBC) [Entered: 01/18/2017 09:56 AM]
LETTER OF ADVISEMENT. Reason: advising parties of new caption as alias was erroneously left off at case opening [1651148] (MVM) [Entered: 01/23/2017 02:13 PM]
LETTER filed by Appellant Mr. Scott Lynn Gibson in support of appeal. [16-51148] (CNF) [Entered: 02/06/2017 11:30 AM]
LETTER filed by Appellant Mr. Scott Lynn Gibson in support of appeal. [16-51148] (CNF) [Entered: 03/05/2017 05:08 PM]
COURT ORDER granting motion to appoint counsel filed by Appellant Mr. Scott Lynn Gibson. (IN DETAIL) . Judge(s): PRO [8338556-2] Genaro R. Cortez is appointed as counsel. [85905192] A/Pet Supplemental Brief due on 10/24/2017 for Appellant Scott Lynn Gibson. [16-51148] (NFD) [Entered: 09/14/2017 09:47 AM]
NON-CJA APPOINTMENT for Attorney Mr. Genaro Retta Cortez for Mr. Scott Lynn Gibson. The District Court has appointed you as non-CJA counsel in this case and your appointment carries over for this appeal. For reimbursement of legal services and expenses, you must file using a CJA 20 voucher even though your appointment is not under the CJA Plan. For

instructions and to download the form, please visit http://www.uscourts.gov/forms/vouchers/appointment-andauthority-pay-court-appointed-counsel. You must submit your completed voucher by email to cja_request@ca5.uscourts.gov at the completion of the case. If you have questions concerning the filing of a voucher, please email cja_request@ca5.uscourts.gov or call 504-310-7765.

10/10/2017
6 pg, 176.66 KB
10/10/2017 10/10/2017

ORIGINATING COURT DISTRICT: WTX ORIGINATING CASE NUMBER: 6:15-CV-190 DATE OF APPOINTMENT: 09/14/2017 [16-51148] (NFD) [Entered: 09/14/2017 10:14 AM]
COURT ORDER upon reconsideration, previously appointed counsel is RELIEVED from representation and PRO BONO COUNSEL is APPOINTED to represent Scott Lynn Gibson, Texas prisoner #699888, also known as Vanessa Lynn. The appointment is for the limited purpose of briefing in this court and presentation of oral argument, if argument is granted. This appointment does not include preparation or filing of a petition for certiorari, nor does it include the duty to meet with the client. (IN DETAIL) [8610065-2]; appointing Stephen L. Braga as counsel [8610065-2] [8610065-2] A/Pet Supplemental Brief deadline updated to 11/20/2017 for Appellant Scott Lynn Gibson Judge(s): PRO. [16-51148] (SDH) [Entered: 10/10/2017 11:48 AM]
ATTORNEY NOT PARTICIPATING. Genaro Gortez is designated as inactive in this case. Reason:per court's order of 10/10/17, the court has reconsidered the appointment of Genaro Cortez and has appointed new counsel as pro bono. [16-51148] (SDH) [Entered: 10/10/2017 12:51 PM]
NON-CJA APPOINTMENT for Attorney Mr. Stephen L. Braga for Mr. Scott Lynn Gibson. The District Court has appointed you as non-CJA counsel in this case and your appointment carries over for this appeal. For reimbursement of legal services and expenses, you must file using a CJA 20 voucher even though your appointment is not under the CJA Plan. For instructions and to download the form, please visit http://www.uscourts.gov/forms/vouchers/appointment-andauthority-pay-court-appointed-counsel. You must submit your completed voucher by email to cja_request@ca5.uscourts.gov at the completion of the case. If you have questions concerning the filing of a voucher, please email cja_request@ca5.uscourts.gov or call 504-310-7765.

ORIGINATING COURT DISTRICT: WTX ORIGINATING CASE NUMBER: 6:15-CV-190 DATE OF APPOINTMENT: 10/10/2017 [16-51148] (SDH) [Entered: 10/10/2017 12:52 PM]

10/24/2017
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APPEARANCE FORM John C. Sullivan for the court's review. Lead Counsel? Yes. [16-51148] (John Clay Sullivan ) [Entered: 10/24/2017 06:01 PM]

10/25/2017

APPEARANCE FORM FILED by Attorney(s) John Clay Sullivan for party(s) Appellee D. Greene Appellee Bryan Collier, in case 16-51148. [16-51148] (MVM) [Entered: 10/25/2017 02:13 PM]

10/26/2017
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APPEARANCE FORM received from Mr. Stephen Louis Braga, I, Esq. for Mr. Scott Lynn Gibson Appellant for the court's review. Lead Counsel? Yes. [16-51148] (Stephen L. Braga ) [Entered: 10/26/2017 07:53 PM]

10/27/2017

APPEARANCE FORM FILED by Attorney Stephen Louis Braga I for Appellant Scott Lynn Gibson in 16-51148 [16-51148] (MVM) [Entered: 10/27/2017 09:40 AM]

11/08/2017

EXTENSION RECEIVED for Appellant Mr. Scott Lynn Gibson. Extension Granted to and including 12/05/2017. A/Pet Supplemental Brief deadline updated to 12/05/2017 for Appellant Scott Lynn Gibson [16-51148] (SDH) [Entered: 11/08/2017 01:16 PM]

11/15/2017
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LETTER OF ADVISEMENT. Reason: Advising appellant that counsel received an extension to 12/5/17 and all correspondence should be addressed and handled by court appointed counsel [1651148] (MBC) [Entered: 11/15/2017 09:15 AM]

12/05/2017
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RECORD EXCERPTS FILED. # of Copies Provided: 0 Paper Copies of Record Excerpts due on 12/11/2017 for Appellant Scott Lynn Gibson. [16-51148] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: RECORD EXCERPTS FILED by Appellant Mr. Scott Lynn Gibson. Date of service: 12/05/2017 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Sullivan [16-51148] (Stephen L. Braga ) [Entered: 12/05/2017 02:23 PM]

12/05/2017
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SUFFICIENT APPELLANT'S SUPPLEMENTAL BRIEF FILED. # of Copies Provided: 0 E/Res Supplemental Brief due on 01/04/2018 for Appellee Bryan Collier and D. Greene. Paper Copies of Brief due on 12/18/2017 for Appellant Scott Lynn Gibson. [16-51148] REVIEWED AND/OR EDITED - The

12/06/2017
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original text prior to review appeared as follows: APPELLANT'S SUPPLEMENTAL BRIEF FILED. Brief NOT Sufficient as it requires 'United States Court of Appeals' on the title page is not in the correct font type; use of the word 'id' is not permitted when citing to the record on appeal. # of Copies Provided: 0 A/Pet's Supplemental Brief deadline satisfied. E/Res Supplemental Brief due on 12/05/2017 for Appellees Bryan Collier and D. Greene.. Paper Copies of Brief due on 12/11/2017 for Appellant Scott Lynn Gibson. [16-51148] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLANT'S BRIEF FILED by Mr. Scott Lynn Gibson. Date of service: 12/05/2017 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Sullivan [16-51148] (Stephen L. Braga ) [Entered: 12/05/2017 08:40 PM]
LETTER OF ADVISEMENT. Reason: Responding to inquiry of 12/4/17 [16-51148] (MBC) [Entered: 12/06/2017 08:16 AM]
PROPOSED SUFFICIENT BRIEF filed by Appellant Mr. Scott Lynn Gibson in 16-51148 [8653200-2] Date of service: 12/08/2017 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Sullivan [16-51148] (Stephen L. Braga ) [Entered: 12/08/2017 12:10 PM]
Paper copies of Record Excerpts filed by Appellant Mr. Scott Lynn Gibson in 16-51148 received. Paper copies match electronic version of document? Yes They require: the cover should be white # of Copies Provided: 4. Paper Copies of Record Excerpts due deadline satisfied.. Sufficient Paper Copies of Record Excerpts Due on 12/19/2017 for Appellant Scott Lynn Gibson. [16-51148] (MRW) [Entered: 12/14/2017 08:58 AM]
Paper copies of Appellant Supplement Brief filed by Appellant Mr. Scott Lynn Gibson in 16-51148 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [16-51148] (MVM) [Entered: 12/21/2017 03:06 PM]
UNOPPOSED LEVEL 1 EXTENSION REQUESTED by Appellees Mr. Bryan Collier and Mr. D. Greene for filing Appellees' Brief until 02/05/2018 at 11:59 pm Appellees' Brief. [16-51148] (John Clay Sullivan ) [Entered: 12/19/2017 05:10 PM]
EXTENSION RECEIVED for Appellees Mr. Bryan Collier and Mr. D. Greene. Extension Granted in Part to and including 01/19/2018. Lacking substantial reasons. E/Res Supplemental Brief deadline updated to 01/19/2018 for Appellees D. Greene and

Bryan Collier [16-51148] (MBC) [Entered: 12/20/2017 09:36 AM]

01/05/2018

Paper copies of Record Excerpts [8659537-2] received as sufficient. Sufficient Paper Copies of Record Excerpts due deadline satisfied. [16-51148] (RAJ) [Entered: 01/05/2018 01:18 PM]

01/19/2018
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APPELLEE'S SUPPLEMENTAL BRIEF FILED # of Copies Provided: 0 E/Res's Supplemental Brief deadline satisfied. Supplemental Reply Brief due on 01/19/2018 for Appellant Scott Lynn Gibson.. Paper Copies of Brief due on 01/29/2018 for Appellees Bryan Collier and D. Greene. [16-51148] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLEE'S SUPPLEMENTAL BRIEF FILED by Mr. Bryan Collier and Mr. D. Greene Date of service: 01/19/2018 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Sullivan [16-51148] (John Clay Sullivan ) [Entered: 01/19/2018 06:25 PM]

01/25/2018

Paper copies of Appellee Supplement Brief filed by Appellees Mr. Bryan Collier and Mr. D. Greene in 16-51148 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [1651148] (MCS) [Entered: 01/29/2018 09:08 AM]

01/29/2018

BRIEFING COMPLETE.Supplemental Reply Brief deadline canceled [16-51148] (MBC) [Entered: 01/29/2018 09:24 AM]

02/02/2018
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APPELLANT'S REPLY BRIEF FILED # of Copies Provided: 0 Paper Copies of Brief due on 02/14/2018 for Appellant Scott Lynn Gibson. [16-51148] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLANT'S REPLY BRIEF FILED by Mr. Scott Lynn Gibson. Date of service: 02/02/2018 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Sullivan [16-51148] (Stephen L. Braga ) [Entered: 02/02/2018 02:11 PM]

02/14/2018

Paper copies of Appellant Reply Brief filed by Appellant Mr. Scott Lynn Gibson in 16-51148 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [16-51148] (RAJ) [Entered: 02/14/2018 02:36 PM]

04/30/2018

LETTER OF ADVISEMENT. Reason: advising appellant his

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07/18/2018
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10/22/2018 12/03/2018

is requesting a copy of the supplemental reply brief filed on his behalf [16-51148] (MVM) [Entered: 04/30/2018 10:38 AM]
CASE TENTATIVELY calendared for oral argument for the week of 07/09/2018. [16-51148] (GAM) [Entered: 05/14/2018 11:40 AM]
TENTATIVE CALENDAR changed from week of 07/09/2018 to week of 09/03/2018.. [16-51148] (GAM) [Entered: 05/15/2018 11:38 AM]
CASE CALENDARED for oral argument on Wednesday, 09/05/2018 in New Orleans in the West Courtroom -- AM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [16-51148] (SME) [Entered: 07/18/2018 01:01 PM]
CALENDARED CASE CONTINUED due tropical storm Gordon.. [16-51148] (SME) [Entered: 09/05/2018 02:37 PM]
CASE TENTATIVELY calendared for oral argument for the week of 12/03/2018. [16-51148] (GAM) [Entered: 09/28/2018 11:09 AM]
CASE CALENDARED for oral argument on Monday, 12/03/2018 in New Orleans in the En Banc Courtroom -- AM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [16-51148] (PFT) [Entered: 10/17/2018 01:52 PM]
APPEARANCE FORM for the court's review. Lead Counsel? No. [16-51148] (Heather Kriscenski Rhea ) [Entered: 10/19/2018 05:26 PM]
APPEARANCE FORM FILED by Attorney(s) Heather Kriscenski Rhea for party(s) Appellee Bryan Collier, in case 1651148 [16-51148] (CMB) [Entered: 10/22/2018 10:24 AM]
ORAL ARGUMENT HEARD before Judges Smith, Barksdale, Ho. Arguing Person Information Updated for: Stephen Louis Braga, I arguing for Appellant Scott Lynn Gibson; Arguing Person Information Updated for: John Clay Sullivan arguing for Appellee Bryan Collier, Et Al. [16-51148] (PFT) [Entered: 12/03/2018 09:54 AM]

01/24/2019
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SUPPLEMENTAL AUTHORITIES (FRAP 28j) FILED by Appellant Mr. Scott Lynn Gibson Date of Service: 01/24/2019 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Rhea, Sullivan [16-51148] (Stephen L. Braga ) [Entered: 01/24/2019 12:34 PM]

01/31/2019
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RESPONSE filed by Appellees Mr. Bryan Collier and Mr. D. Greene to the 28j Letter filed by Appellant Mr. Scott Lynn Gibson [8968255-2] Date of Service: 01/31/2019 via email - Attorney for Appellant: Braga; Attorney for Appellees: Huntpalmer, Rhea, Sullivan [16-51148] (John Clay Sullivan ) [Entered: 01/31/2019 05:10 PM]

03/29/2019
53 pg, 333.44 KB

PUBLISHED OPINION FILED. [16-51148 Affirmed ] Judge: JES , Judge: RHB , Judge: JCH. Mandate issue date is 04/22/2019 [16-51148] (This opinion includes URL material that is archived by the Fifth Circuit Court of Appeals Library, and made available at http://www.lb5.uscourts.gov/ArchivedURLS/.) (NFD) [Entered: 03/29/2019 02:45 PM]

03/29/2019

JUDGMENT ENTERED AND FILED. [16-51148] (NFD)

1 pg, 34.16 KB [Entered: 03/29/2019 02:48 PM]

04/22/2019

MANDATE ISSUED. Mandate issue date satisfied. [16-51148]

53 pg, 423.38 KB (KGL) [Entered: 04/22/2019 10:02 AM]

06/04/2019
1 pg, 86.24 KB

LETTER OF ADVISEMENT. Reason: attaching copy of opinion and judgment for appellant's review and advising of any current deadlines in this case [16-51148] (MVM) [Entered: 06/04/2019 09:49 AM]

07/01/2019
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SUPREME COURT NOTICE that petition for writ of certiorari [9088258-2] was filed by Appellant Mr. Scott Lynn Gibson on 06/20/2019. Supreme Court Number: 18-1586. [16-51148] (SMC) [Entered: 07/01/2019 03:22 PM]

12/09/2019
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SUPREME COURT ORDER received denying petition for writ of certiorari filed by Appellant Mr. Scott Lynn Gibson in 16-51148 on 12/09/2019. [9206253-1] [16-51148] (SMC) [Entered: 12/09/2019 03:11 PM]

 
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LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
November 03, 2016

Mr. Richard Huntpalmer Office of the Attorney General for the State of Texas P.O. Box 12548 Capitol Station Austin, TX 78711-2548
No. 16-51148 Scott Gibson v. Brad Livingston, et al USDC No. 6:15-CV-190

Dear Mr. Huntpalmer,
We filed the appellant's brief on 10/28/16. Appellee's brief is due within 30 days of that date, see FED R. APP. P. 31(a)(1). 5TH CIR. R. 31 and the Internal Operating Procedures following rules 27 and 31 state that except in the most extraordinary circumstances, the maximum extension for filing briefs is 30 days in criminal cases and 40 days in civil cases.
New Guidance Regarding Citations in Pleadings.
The court has approved an amendment to 5TH CIR. R. 28.2.2 granting the Clerk the authority to create a standard format for citation to the electronic record on appeal. You must use the new citation format when citing to the electronic record on appeal.
A. In single record cases, use the short citation form, "ROA" followed by a period, followed by the page number. For example, "ROA.123."
B. For multiple record cases, cite "ROA" followed by a period, followed by the Fifth Circuit appellate case number of the record referenced, followed by a period, followed by the page of the record. For example, "ROA.13-12345.123."
Important notice regarding citations to the record on appeal to comply with the recent amendment to 5TH CIR. R. 28.2.2.
Parties are directed to use the new ROA citation format in 5TH CIR. R. 28.2.2 only for electronic records on appeal with pagination that includes the case number followed by a page number, in the format "YY-NNNNN.###". In single record cases, the party will use the shorthand "ROA.###" to identify the page of the record

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referenced. For multi-record cases, the parties will have to identify which record is cited by using the entire format (for example, ROA.YY-NNNNN.###).
Parties may not use the new citation formats for USCA5 paginated records. For those records, parties must cite to the record using the USCA5 volume and or page number.
In cases with both pagination formats, parties must use the citation format corresponding to the type of record cited.
Explanation: In 2013, the court adopted the Electronic Record on Appeal (EROA) as the official record on appeal for all cases in which the district court created the record on appeal on or after 4 August 2013. Records on appeal created on or after that date are paginated using the format YY-NNNNN.###. The records on appeal in some cases contain both new and old pagination formats, requiring us to adopt the procedures above until fully transitioned to the EROA.
The recent amendment to 5TH CIR. R. 28.2.2 was adopted to permit a court developed computer program to automatically insert hyperlinks into briefs and other documents citing new EROA records using the new pagination format. This program provides judges a ready link to pages in the EROA cited by parties.
Attention Attorneys: Direct access to the electronic record on appeal (EROA) for pending appeals will be enabled by the U S District Court on a per case basis. Counsel can expect to receive notice once access to the EROA is available. Counsel must be approved for electronic filing and must be listed in the case as attorney of record before access will be authorized. Instructions for accessing and downloading the EROA can be found on our website at www.ca5.uscourts.gov/attorneys/attorney-forms/eroa_downloads. Additionally, a link to the instructions will be included in the notice you receive from the district court.
Sealed documents, except for the presentence investigation report in criminal appeals, will not be included in the EROA. Access to sealed documents will continue to be provided by the district court only upon the filing and granting of a motion to view same in this court.
Pro se litigants may request the record from the district court to prepare your brief. If you wish to receive exhibits, you must specifically request them.
Once you obtain the record, you should check it within 14 days of receipt for any missing or incomplete items. If you need to request a supplemental record or order transcripts, do so promptly. The court will not grant extensions of time to file your brief because you did not timely check the record.
Important notice: 5TH CIR. R. 30.1.7(c) provides that the electronic PDF version of the record excerpts should contain pages representing the "tabs" identified in the index of the document. However, we remind attorneys that the actual paper copies of record excerpts filed with the court must contain actual physical tabs

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that extend beyond the edge of the document, to facilitate easy identification and review of tabbed documents.
Sincerely, LYLE W. CAYCE, Clerk

Enclosure(s)
cc w/encl: Mr. Scott Lynn Gibson

By: _________________________ Melissa V. Mattingly, Deputy Clerk 504-310-7719

Case: 16-51148 Document: 00513746027 Page: 4 Date Filed: 10/28/2016
Case No. 16-51148
SCOTT LYNN GIBSON, Plaintiff - Appellant
v. BRAD LIVINGSTON; DR. D. GREENE,
Defendants - Appellees

 
 Case: 16-51148 Document: 00513815284 Page: 1 Date Filed: 12/28/2016

No. 16-51148

In the United States Court of Appeals For the Fifth Circuit

SCOTT LYNN GIBSON, Plaintiff-Appellant
v.

BRYAN COLLIER; DR. D. GREENE, Defendants-Appellees

On Appeal from the United States District Court for the Eastern District of Texas - Waco Division (Civil Action No. 6:15-CV-190)

BRIEF OF DEFENDANT-APPELLEE BRYAN COLLIER

KEN PAXTON Attorney General of Texas

KAREN D. MATLOCK, Chief of the Law Enforcement Defense Division

JEFFREY C. MATEER First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 012) Austin, Texas 78711-2548 (512) 463-2080/Fax: (512) 936-2109

RICHARD A. HUNTPALMER Assistant Attorney General State Bar No. 24097857 richard.huntpalmer@oag.texas.gov
COUNSEL FOR DEFENDANT-APPELLEE BRYAN COLLIER

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CERTIFICATE OF INTERESTED PERSONS

NO. 16-51148
SCOTT LYNN GIBSON, Plaintiff-Appellant
v.

BRYAN COLLIER; DR. D. GREENE, Defendants-Appellees

The undersigned counsel of record certifies that the following listed persons and

entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome

of this case. These representations are made in order that the judges of this Court may

evaluate possible disqualification or recusal.

Defendant-Appellee: Counsel for Defendant-Appellee:

Bryan Collier Richard A. Huntpalmer Assistant Attorneys General Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, TX 78711

Defendant-Appellee:

Dr. D. Greene

Counsel for Defendant-Appellee:

Dr. D. Greene is unrepresented. Counsel for Bryan Collier have made an argument as amicus curiae on Dr. Greene’s behalf.

Plaintiff-Appellant: Appearing Pro Se

Scott Gibson Alfred Hughes Unit 2101 FM 369 North Iowa Park, TX 76367

/s/ Richard A. Huntpalmer RICHARD A. HUNTPALMER Assistant Attorney General richard.huntpalmer@oag.texas.gov

Case: 16-51148 Document: 00513815284 Page: 3 Date Filed: 12/28/2016
STATEMENT REGARDING ORAL ARGUMENT Oral argument is unnecessary because the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
ii

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TABLE OF CONTENTS
Statement Regarding Oral Argument ......................................................................................ii
Table of Contents .....................................................................................................................iii
Table of Authorities............................................................................................................. iv, v
Issues Presented .........................................................................................................................1
Statement of the Case................................................................................................................1 I. Gibson’s Background......................................................................................................1 II. Correctional Managed Health Care Policy G-51.11 (“G-51.11”)..............................2 III. Gibson’s Claim.................................................................................................................2
Course of Proceedings and Disposition in the Court Below ...............................................3
Summary of the Argument .......................................................................................................4
Standard of Review ....................................................................................................................5
Argument ....................................................................................................................................5
I. Gibson cannot establish a genuine issue of material fact as to whether G-51.115 is unconstitutional.............................................................................................................5 A. Gibson failed to produce evidence suggesting that the care provided for in G-51.11 is so inadequate as to shock the conscience. ............................................6 B. Gibson failed to produce evidence suggesting that G-51.11 amounts to.............7 deliberate indifference. ...............................................................................................7
II. Rule 56 does not require the summary judgment movant to produce affirmative evidence to negate a non-movant’s claim. ..................................................................10
III. Amicus Curiae Advisory regarding the District Court’s proper dismissal of Gibson’s claims against Dr. Greene. ...........................................................................10
Conclusion ................................................................................................................................12
Certificate of Service................................................................................................................13
Certificate of Compliance .......................................................................................................14
iii

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TABLE OF AUTHORITIES

Cases:

Page(s)

Boudreaux v. Swift Transp. Co., 402 F.3d 536 (5th Cir. 2005) ...............................................................................................10

Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752 (5th Cir. 2001) ...............................................................................................12

Estelle v. Gamble, 429 U.S. 97 (1976) ......................................................................................................... 5, 6, 7

Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................................................8

Hay v. Waldron, 834 F.2d 481 (5th Cir. 1987) .................................................................................................8

Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) ........................................................................................... 6, 7, 8

Miller v. Calhoun Cnty., 408 F.3d 803 (6th Cir. 2005) .................................................................................................6

Milton v. TDCJ, 707 F.3d 570 (5th Cir. 2013) .................................................................................................5

Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507 (5th Cir. 2001) ...............................................................................................10

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014) .......................................................................................passim

Praylor v. Texas Dep’t of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005) ............................................................................................. 6

Rizzo v. Goode, 423 U.S. 362 (1976) ................................................................................................................9

iv

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Thompson v. Steele, 709 F.2d 381 (5th Cir. 1983) .................................................................................................9
Wilson v. Seiter, 501 U.S. 294 (1991) ................................................................................................................8
Statutes and Rules: 28 U.S.C. § 1915(e)(2)..............................................................................................................11 28 U.S.C. § 1915(e)(2)(B)(ii)....................................................................................................11 42 U.S.C. § 1983 .................................................................................................................... 3, 9 Federal Rule of Civil Procedure 56(e) ...................................................................................10
v

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ISSUES PRESENTED Appellant presents fifteen issues on appeal. They may be properly and concisely addressed when consolidated into the following dispositive issues for review: 1. Whether Gibson has established a genuine issue of material fact as to
whether policy G-51.11 is unconstitutional on its face or as applied to Gibson. 2. Whether Defendants were required to affirmatively negate Gibson’s claims to be entitled to summary judgment.
STATEMENT OF THE CASE Plaintiff-Appellant Scott Lynn Gibson (“Gibson”) is a male-to-female preoperative transsexual1 who seeks an evaluation for sex-reassignment surgery (“SRS”) and, if warranted, the surgery itself, on the grounds that inmates diagnosed with severe Gender Dysphoria (“GD,” previously known as Gender Identity Disorder), are entitled to such treatment under the Eighth Amendment’s prohibition against cruel and unusual punishment. I. Gibson’s Background Gibson has identified as a female for 20 years, but did not begin receiving treatment for his gender disorder until 2014. ROA.388-89. When Gibson entered TDCJ 1995, he verbally requested treatment for his undiagnosed gender disorder, but was denied. ROA.388-89. The policy in place at that time prohibited treatment for
1 Though Gibson self-identifies as female, Gibson is biologically male and is confined in a male prison unit. For clarity and consistency, this brief will refer to Gibson as male.

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transgender inmates without a gender disorder diagnosed before incarceration. ROA.38889. The current policy, effective since October 2013, does not have this treatment barrier for inmates like Gibson. ROA.266-70.
Once Gibson learned of the new policy and expressed a desire to castrate himself, Gibson was evaluated by University of Texas Medical Branch doctors at the Skyview psychiatric facility and diagnosed with GD in May 2014. ROA.398-99. Gibson has since received ongoing mental health care, and began receiving hormone therapy in September 2014. ROA.398-99. II. Correctional Managed Health Care Policy G-51.11 (“G-51.11”)
Policy G-51.11 provides guidelines for the management of inmates with intersex conditions and GD. ROA.266-70. The policy provides three levels of procedures to manage inmates with a known intersex condition, those pre-diagnosis, and those who receive a diagnosis while incarcerated. ROA.267-69. The policy provides that inmates with GD “will receive thorough medical and mental health evaluations,” ROA.268, mental health counseling, ROA.269, and, hormone therapy if warranted under the [c]urrent, accepted standards of care and the offender’s physical and mental health.” ROA.269. Gibson’s care and treatment was managed under the guidelines of this policy. ROA.18, 414. III. Gibson’s Claim
Gibson does not contend that he has not received treatment within the current policy’s guidelines. Rather, Gibson contends that mental health care and hormone
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therapy are insufficient to treat his severe GD, and that the policy’s failure to provide SRS as a treatment option renders it constitutionally inadequate. In support, Gibson cites the World Professional Association for Transgender Health’s (WPATH) standards of care for the treatment of transgender individuals, which includes SRS as a last resort treatment option. Gibson argues that Livingston showed deliberate indifference to his severe GD by creating and enforcing a treatment policy, which should—but does not— include WPATH’s SRS recommendation.
COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW Gibson filed suit under 42 U.S.C. § 1983 against Livingston, in his official capacity, alleging the violation of his Eighth Amendment rights. Gibson seeks prospective injunctive relief in the form of an evaluation for SRS, and if necessary, SRS. Gibson asserts Livingston was deliberately indifferent to his serious medical needs by creating and enforcing a policy that provides constitutionally inadequate guidelines for the treatment of inmates with GD. Bryan Collier has since taken over from Livingston as Executive Director of TDCJ. On summary judgment, the district court found Gibson failed to demonstrate a violation of his Eight Amendment rights. ROA.416-17. In assessing Gibson’s claim, the district court first considered the current state of relevant Fifth Circuit law, finding no controlling precedent suggesting that inmates are constitutionally entitled to SRS as a treatment for GD. ROA.416-17. The court next declined to adopt the WPATH standards of care under which Gibson sought to hold Livingston accountable, because Gibson
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failed to provide sufficient summary judgment evidence that those standards were constitutionally required. ROA.416. Finally, the court found that even assuming the appropriate standard of care mandated SRS as a treatment option for GD, the record evidence did not support Gibson’s conclusory assertion that Livingston’s conduct amounted to deliberate indifference. ROA.416. On appeal, Gibson challenges the district court’s conclusions and asserts that the court erred in granting summary judgment because Defendants did not affirmatively negate his claims.
SUMMARY OF THE ARGUMENT Gibson cannot establish a genuine issue of material fact as to whether policy G51.11 is unconstitutional. Gibson failed to produce competent summary judgment evidence demonstrating that SRS is constitutionally required or that the medical treatment he has received under G-51.11 is constitutionally inadequate. Gibson also failed to show Livingston’s conduct as a policy-maker amounted to deliberate indifference. Summary judgment was appropriate due to Gibson’s failure to establish a genuine issue of material fact concerning the essential elements of his Eighth Amendment claims. Livingston, as the moving party, was not required to affirmatively negate Gibson’s claims to be entitled to summary judgment. The District Court properly dismissed Dr. Greene from the suit sua sponte. That discretion was within the court’s power under the Federal in forma pauperis statute, and Gibson failed to allege facts stating a claim on which relief could be granted. This Court should affirm the judgment below in its entirety.
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STANDARD OF REVIEW This Court “review[s] a district court’s decision granting summary judgment de novo, applying the same standards as the trial court.” Milton v. TDCJ, 707 F.3d 570, 572 (5th Cir. 2013). “Summary judgment must be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which it will bear the burden of proof at trial.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (internal quotation mark omitted). To make that required showing, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Id. (internal quotation mark omitted). “Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” Id. (quotation marks omitted).
ARGUMENT I. Gibson Cannot Establish A Genuine Issue Of Material Fact As To Whether
G-51.11 Is Unconstitutional. The Eighth Amendment is meant to prohibit “unnecessary and wanton infliction of pain,” which is “repugnant to the conscience of mankind.” Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). The Eighth Amendment’s focus on punishment means that not every shortage or failure of medical care violates the Constitution. The Eighth Amendment is implicated only where there is (1) objective proof of a serious medical need, and (2) deliberate indifference to that serious medical need. See id. at 104. Gibson failed to put forth evidence that raises a genuine issue of material fact as to either of these prongs.
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A. Gibson Failed To Produce Evidence Suggesting That The Care Provided For In G-51.11 Is So Inadequate As To Shock The Conscience. To satisfy the first prong of his Eighth Amendment claim, Gibson must show that
he has a serious medical need for which he received inadequate care. See Gamble, 429 U.S. at 106. This Court has previously declined to hold that GD is a serious medical need. See Praylor v. Texas Dep’t of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir. 2005) (per curiam). The Court need not reach that issue here because, even assuming that GD is a serious medical need, Gibson has failed to show that the mental health counseling and hormone treatment provided for in G-51.11 is so inadequate as to shock the conscience. In fact, as this Court recognized in Praylor, multiple courts have held that not even hormone treatment is required to adequately address GD. See id. at 1209 (citing cases).
To be actionable under the Eighth Amendment, medical care must be so inadequate as to shock the conscience. See, e.g., Gamble, 429 U.S. at 106 (actions must be “repugnant to the conscience of mankind”); Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014) (en banc) (“[T]he Constitution proscribes care that is so inadequate as to shock the conscience.”) (internal quotation marks omitted), cert. denied sub nom., Kosilek v. O’Brien, 135 S. Ct. 2059 (2015); Miller v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005) (“Grossly inadequate medical care is medical care that is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”) (internal quotation marks omitted). To support his assertion that mental health counseling and hormone therapy are inadequate, Gibson relied on the WPATH guidelines. ROA.416; Appellant’s Br. 12, 17-20. But while those guidelines do
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recommend SRS as a form of treatment, they provide no help in determining whether diverging from those guidelines shocks the conscience.
As the district court explained, Gibson put forth “no witness testimony or evidence from professionals in the field demonstrating that the WPATH-suggested treatment option of SRS is so universally accepted, that to provide some but not all of the WPATHrecommended treatment amounts to” a constitutional violation. ROA.416; see also Kosilek, 774 F.3d at 86-91 (en banc First Circuit reversing district court’s conclusion that WPATH guidelines represented constitutionally required standard of care).2 Gibson failed to provide any evidence that would give context to the WPATH guidelines—indeed, he did not even provide a full copy of the guidelines. See ROA.416.
Evidence that supports the use of a certain treatment is not evidence that such treatment is required. Because Gibson failed to produce the latter evidence, he “fail[ed] to make a showing sufficient to establish the existence of an element essential to” his “case,” and the district court properly granted summary judgment to Defendants. Steadfast Ins. Co., 767 F.3d at 511 (internal quotation mark omitted).
B. Gibson Failed To Produce Evidence Suggesting That G-51.11 Amounts To Deliberate Indifference.
Even if Gibson did produce evidence suggesting that SRS is medically necessary to adequately treat GD, his claim would still fail because he failed to produce any evidence suggesting that anyone “knew or should have known this fact, but nonetheless failed to
2 Gibson cites the district court’s opinion in Kosilek but overlooks its subsequent reversal. See Appellant’s Br. 12.
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respond in an appropriate manner.” Kosilek, 774 F.3d at 91; accord Wilson v. Seiter, 501 U.S. 294, 298 (1991) (explaining that “the subjective component” of an Eighth Amendment claim asks whether “officials act[ed] with a sufficiently culpable state of mind”). Gibson produced no evidence concerning the process that went into developing G-51.11 or the medical advice received and relied on by prison officials. Without such evidence, it impossible to determine whether “officials act[ed] with a sufficiently culpable state of mind.” Wilson, 501 U.S. at 298.
Gibson likewise produced “no evidence addressing the security issues associated with adopting in full the WPATH standards in an institutional setting.” ROA.416. This Court does “not sit to substitute [its] own judgment for that of prison administrators.” Kosilek, 774 F.3d at 92; accord Hay v. Waldron, 834 F.2d 481, 486 (5th Cir. 1987) (“[A] court should accord broad deference to prison administrators regarding the reasonableness of the scope, the manner, the place and the justification for a particular policy.”). As the First Circuit noted in Kosilek, “[r]ecognizing that reasonable concerns would arise regarding a post-operative, male-to-female transsexual being housed with male prisoners takes no great stretch of the imagination.” 774 F.3d at 93 (citing Farmer v. Brennan, 511 U.S. 825, 848-49 (1994)).
Yet Gibson produced no evidence bearing on this issue. As a result, Gibson has again “fail[ed] to make a showing sufficient to establish the existence of an element essential to” his “case,” and the district court properly granted summary judgment to Defendants. Steadfast Ins. Co., 767 F.3d at 511 (internal quotation mark omitted).
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Gibson’s Eighth Amendment claim against Livingston as a policymaker fails for the additional reason that Gibson failed to produce any evidence suggesting that Livingston was personally aware of facts indicating a substantial risk of serious harm or that Livingston was actually aware of that risk. A plaintiff bringing a civil rights claim under 42 U.S.C. § 1983 must establish a causal connection between the alleged constitutional deprivation and the defendant whom they would hold responsible; “[p]ersonal involvement is an essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983); see Rizzo v. Goode, 423 U.S. 362, 371-77 (1976) (affirmative link needed between injury and conduct of defendant). For a claim of deliberate indifference, a public official must have been personally aware of the facts indicating a substantial risk of serious harm, and the official must have actually recognized the existence of such a risk. Farmer, 511 U.S. at 838.
Because Gibson sues Livingston as a policymaker, as the district court correctly reasoned, Gibson must show that Livingston was aware both that the WPATH standards of care were appropriate for inmates diagnosed with GD, and that a substantial risk of serious harm would be posed to those inmates absent a policy that provides SRS. Further, Gibson must show Livingston deliberately created and enforced a policy to deny such treatment despite the known or obvious constitutional violations that would follow. Gibson, however, produced no evidence of Livingston’s knowledge of any relevant fact or risk. As such, summary judgment was appropriate for this reason as well.
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II. Rule 56 Does Not Require The Summary Judgment Movant To Produce Affirmative Evidence To Negate A Non-Movant’s Claim. Citing Federal Rule of Civil Procedure 56(e), Gibson asserts that the district court
erred in granting summary judgment to Livingston because Livingston did not produce evidence to affirmatively negate Gibson’s claims. See Appellant’s Br. 27-28. Gibson is mistaken.
Subsection (e) of Rule 56 says nothing about what is needed to negate a nonmovant’s claim. Subsection (c), meanwhile, provides that “[a] party asserting that a fact cannot be . . . genuinely disputed must support the assertion by . . . showing that the materials [in the record] do not establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Thus, contrary to Gibson’s premise, a summary judgment “movant need not negate the elements of the nonmovant’s case.” Steadfast Ins. Co., 767 F.3d at 511 (internal quotation marks omitted).
Because Gibson, as the nonmovant, failed to “set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case” (Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)), summary judgment was appropriate.3 III. Amicus Curiae Advisory regarding the District Court’s proper dismissal of Gibson’s claims against Dr. Greene.
Concurrent with its grant of summary judgment in Livingston’s favor, the district
3 The case relied on by Gibson—Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507 (5th Cir. 2001)—correctly states that the non-movant must support her claim with competent summary judgment evidence. See id. at 515. Gibson failed to do that here and thus summary judgment was appropriate.
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court also dismissed Gibson’s claim against Dr. Greene4 pursuant to 28 U.S.C. § 1915(e)(2), which subjects in forma pauperis complaints to sua sponte dismissal for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii). The lower court found Gibson’s allegations against Dr. Greene amounted to a treatment disagreement, not a constitutional violation. ROA.419. This Court should affirm that judgment.
Gibson asserts Dr. Greene, a TDCJ medical doctor, violated his Eighth Amendment rights by refusing to provide Gibson the same treatment—the items necessary to have “real life experience” as a female—recommended by Dr. McKinney, his UTMB doctor. ROA.284-295; App.Br. 15-16. Gibson concedes that Dr. McKinney did not specify what “real life experience” items included, but asserts it should include SRS under the WPATH standards. App.Br. 15-17; accord ROA.417-19. Gibson further argues that Dr. Greene is not a GD specialist and therefore did not base his treatment denial on accepted standards of care for inmates with GD but instead relied on the guidelines provided by G-51.11.
The lower court correctly reasoned that Gibson’s allegations against Dr. Greene “fail to amount to a constitutional violation.” ROA.421. The competent summary judgment evidence shows Dr. Greene provided Gibson treatment in line with G-51.11, a constitutionally adequate policy for managing inmates with GD. ROA.421; see also discussion supra at 5-9. Though Gibson plainly disagrees with the extent of the care he
4 Dr. Greene has not made an appearance in this case and is not represented by the Office of the Attorney General for Texas.
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has received, Gibson has not and cannot demonstrate Dr. Greene “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Therefore this Court should affirm the District Court’s sua sponte dismissal of Gibson’s claim against Dr. Greene.
CONCLUSION The Court should affirm the judgment of the District Court in its entirety.

Respectfully submitted.

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General

LACEY E. MASE Division Chief Law Enforcement Defense Division
RICHARD A. HUNTPALMER Assistant Attorney General State Bar No. 24097857 richard.huntpalmer@oag.texas.gov

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

COUNSEL FOR DEFENDANT-APPELLEE BRYAN COLLIERDEFEND

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 012) Austin, Texas 78711-2548 (512) 463-2080/Fax: (512) 936-2109

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CERTIFICATE OF SERVICE On January 5, 2017, this brief was served via CM/ECF on all registered counsel and transmitted to the Clerk of the Court. Counsel further certifies that: (1) any required privacy redactions have been made in compliance with Fifth Circuit Rule 25.2.13; (2) the electronic submission is an exact copy of the paper document in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned with the most recent version of Symantec Endpoint Protection and is free of viruses.
/s/ Richard A. Huntpalmer RICHARD A. HUNTPALMER Assistant Attorney General richard.huntpalmer@oag.texas.gov
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CERTIFICATE OF COMPLIANCE This brief complies with: (1) the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 2,865 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and (2) the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface (14-point Garamond) using Microsoft Word (the same program used to calculate the word count).
/s/ Richard A. Huntpalmer RICHARD A. HUNTPALMER Assistant Attorney General richard.huntpalmer@oag.texas.gov
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Case: 16-51148 Document: 00513818325 Page: 1 Date Filed: 12/28/2016

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
December 30, 2016

Mr. Richard Huntpalmer Office of the Attorney General for the State of Texas P.O. Box 12548 Capitol Station Austin, TX 78711-2548
No. 16-51148 Scott Gibson v. Bryan Collier, et al USDC No. 6:15-CV-190

Dear Mr. Huntpalmer,
The following pertains to your brief electronically filed on 12/28/16.
We filed your brief. However, you must make the following corrections within the next 14 days.
Opposing party's briefing time continues to run.
You need to correct or add:
Caption on the brief does not agree with the caption of the case in compliance with FED R. APP. P. 32(a)(2)(C). (See attachment)
Record References: Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed by the Clerk of Court. Although your brief contains citations to the record, they are not in proper form. (See 5TH CIR. R. 28.2.2) Use of the word ‘id.’ is not permitted when citing to the record on appeal.
Once you have prepared your sufficient brief, you must select from the Briefs category the event, Proposed Sufficient Brief, via the electronic filing system. Please do not send paper copies of the brief until requested to do so by the clerk's office. The brief is not sufficient until final review by the clerk's office. If the brief is in compliance, paper copies will be requested and you will receive a notice of docket activity advising you that the sufficient brief filing has been accepted and no further corrections are necessary. The certificate of service on your

Case: 16-51148 Document: 00513818325 Page: 2 Date Filed: 12/28/2016

proposed sufficient brief MUST be dated on the actual date that service is being made.
Sincerely, LYLE W. CAYCE, Clerk

cc: Mr. Scott Lynn Gibson

By: _________________________ Melissa V. Mattingly, Deputy Clerk 504-310-7719

Case: 16-51148 Document: 00513818325 Page: 3 Date Filed: 12/28/2016
Case No. 16-51148
SCOTT LYNN GIBSON, Plaintiff - Appellant
v. BRYAN COLLIER; DR. D. GREENE,
Defendants - Appellees

Case: 16-51148 Document: 00513828722 Page: 1 Date Filed: 12/28/2016

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
January 10, 2017

Mr. Richard Huntpalmer Office of the Attorney General for the State of Texas P.O. Box 12548 Capitol Station Austin, TX 78711-2548
No. 16-51148 Scott Gibson v. Bryan Collier, et al USDC No. 6:15-CV-190

Dear Mr. Huntpalmer,
We have reviewed your electronically filed proposed sufficient brief and it is sufficient.
You must submit the 7 paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies may result in the dismissal of your appeal pursuant to 5TH CIR. R. 42.3.
The paper copies of your brief/record excerpts must not contain a header noting "RESTRICTED". Therefore, please be sure that you print your paper copies from this notice of docket activity and not the proposed sufficient brief/record excerpts filed event so that it will contain the proper filing header. Alternatively, you may print the sufficient brief/record excerpts directly from your original file without any header.

Case: 16-51148 Document: 00513828722 Page: 2 Date Filed: 12/28/2016

Sincerely, LYLE W. CAYCE, Clerk

cc: Mr. Scott Lynn Gibson

By: _________________________ Melissa V. Mattingly, Deputy Clerk 504-310-7719

 
 Case: 16-51148 Document: 00514261733 Page: 1 Date Filed: 12/05/2017
RECORD NO. 16-51148

IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
SCOTT LYNN GIBSON, also known as Vanessa Lynn,
Plaintiff-Appellant,
v.

BRYAN COLLIER; DR. D. GREENE,

Defendants-Appellees,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS - AT WACO Honorable Walter S. Smith, Jr., U.S. District Judge
SUPPLEMENTAL BRIEF OF APPELLANT SCOTT LYNN GIBSON

Stephen L. Braga Elizabeth Benshoff (Third Year Law Student) John Bok (Third Year Law Student) UNIVERSITY OF VIRGINIA
SCHOOL OF LAW Appellate Litigation Clinic 580 Massie Road Charlottesville, Virginia 22903-1789 (434) 924-3825 stevebraga@virginia.edu
Counsel for Appellant
LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477 A Division of Lantagne Duplicating Services

Case: 16-51148 Document: 00514261733 Page: 2 Date Filed: 12/05/2017
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges of
this Court may evaluate possible disqualification or recusal.
Defendant-Appellee – Bryan Collier
Counsel for Defendant-Appellee – Richard A. Huntpalmer – John Clay Sullivan Assistant Attorneys General Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, TX 78711
Defendant-Appellee – Dr. D. Greene
Counsel for Defendant-Appellee – John Clay Sullivan Assistant Attorneys General Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, TX 78711
Plaintiff-Appellant – Scott Gibson
Counsel for Plaintiff Appellant – Stephen L. Braga UNIVERSITY OF VIRGINIA SCHOOL OF LAW Appellate Litigation Clinic 580 Massie Road, SL-251 Charlottesville, VA 22903-1789 (434) 924-3825 stevebraga@virginia.edu
/s/ Stephen L. Braga

Case: 16-51148 Document: 00514261733 Page: 3 Date Filed: 12/05/2017

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________
Case No. 16-51148 ________

SCOTT LYNN GIBSON,
Plaintiff-Appellant, v.

BRYAN COLLIER, et al.,

________

Defendants-Appellees.

On Appeal From The United States District Court For The Western District Of Texas - At Waco
Honorable Walter S. Smith, Jr., U.S. District Judge ________

SUPPLEMENTAL BRIEF OF APPELLANT SCOTT LYNN GIBSON ________

This appeal raises two questions of first impression in this Circuit: is Gender

Dysphoria (“GD”) a serious medical condition, and is Sex Reassignment Surgery

(“SRS”) a potentially necessary treatment for some who suffer from GD? If the

answer to both of these questions is yes, then Texas state inmates who suffer from

GD should have SRS available as a potential treatment for their condition.

Otherwise, by proscribing this potential treatment for this serious medical

ii

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condition, the Texas Department of Criminal Justice (“TDCJ”) violates the Eighth Amendment’s ban on Cruel and Unusual Punishments by being “deliberately indifferent” to these inmates’ serious medical needs. Yet that is exactly what is happening here, to the great and unconstitutional suffering of inmate Scott Lynn Gibson (“Gibson”) and others like her.
STATEMENT REGARDING ORAL ARGUMENT Gibson respectfully requests oral argument of this appeal because the issues of first impression it raises involve fundamental and evolving rights of the required care and treatment for transgender inmates under the United States Constitution, the analysis of which might be substantially aided by the assistance of counsel at oral argument who are familiar with the medical standards set by The World Professional Association for Transgender Health (“WPATH”), etc. In addition, as appellees’ counsel has informed the Court,1 at least one other case in this Circuit (Haverkamp v. Penn, No. 2:17-CV-18 (S.D.Tex. Corpus Christi Division)) has been stayed pending the resolution of this appeal, which also counsels in favor of the issues on appeal being fully aired as well.
1 See Notice Of Form For Appearance for John C. Sullivan. iii

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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ........................................................i STATEMENT REGARDING ORAL ARGUMENT ............................................. iii TABLE OF CONTENTS..........................................................................................iv TABLE OF AUTHORITIES ....................................................................................vi STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF ISSUES PRESENTED FOR REVIEW ......................................1 STATEMENT OF THE CASE..................................................................................2
Gibson’s Transgender Condition.....................................................................2 Gibson’s Diagnosis With Gender Dysphoria ..................................................4 Gibson Continues To Suffer From Her Condition ..........................................4 Limited Treatment Is Prescribed For Gibson ..................................................5 Gibson Is Denied Evaluation For SRS Treatment...........................................5 Gibson Files A Lawsuit Over Her Lack Of Treatment ...................................6 Initial Briefing Before This Court .................................................................10 SUMMARY OF THE ARGUMENT ......................................................................12 STANDARD OF REVIEW .....................................................................................13 ARGUMENT ...........................................................................................................14 I. GENDER DYSPHORIA IS A SERIOUS MEDICAL CONDITION .....15
iv

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II. SEX REASSIGNMENT SURGERY IS A POTENTIALLY MEDICALLY NECESSARY TREATMENT FOR GENDER DYSPHORIA ...........................................................................................17 A. WPATH’s Standards of Care are Universally Accepted by the Medical Community as the Appropriate Standards of Care for Transgender Individuals, Including Incarcerated Individuals .......19 B. By Not Deferring to the Clearly Established Medical Expert Consensus of WPATH’s Standards of Care, the District Court Departed from Clear U.S. Supreme Court Precedent and Eighth Amendment Jurisprudence .................................................24
III. TDCJ’S DENIAL OF SRS AS A POTENTIAL TREATMENT FOR INMATES SUFFERING FROM GD VIOLATES GIBSON’S EIGHTH AMENDMENT RIGHT TO MEDICAL CARE .....................25
CONCLUSION ................................................................................................... 33 CERTIFICATE OF SERVICE ...........................................................................36 CERTIFICATE OF COMPLIANCE..................................................................37
v

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TABLE OF AUTHORITIES
CASES
Allard v. Gomez, 9 Fed. App'x 793 (9th Cir. 2001)....................................................................16
Atkins v. Virginia, 536 U.S. 304 (2002).........................................................................................24
Barrett v. Coplan, 292 F. Supp. 281 (D.N.H. 2003) .....................................................................30
De'lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013) .........................................................15, 23, 27, 33
Denegal v. Farrell, No. 1:15-cv-01251, U.S. Dist. LEXIS 83373 (E.D. Cal. May 31, 2017) .......30
Estelle v. Gamble, 429 U.S. 97 (1976)...........................................................................................14
Farmer v. Brennan, 511 U.S. 825 (1996).........................................................................................15
Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) .........................................................20, 27, 29, 33
Fields v. Smith, 712 F. Supp. at 830 (E.D. Wis. 2010), aff'd 653 F.3d 550 (7th Cir. 2011)............................................................................................ 23-24
Griffin v. Hess Corp., No. 17-30165, 2017 U.S. App. LEXIS 22011 (5th Cir. Nov. 3, 2017) ...................................................................................................14
Gulley-Fernandez v. Wisc. Department of Correctional, No. 15-cv-995, 2015 U.S. Dist. LEXIS 161623 (E.D. Wis. Dec. 1, 2015) .................................................................................32
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Case: 16-51148 Document: 00514261733 Page: 8 Date Filed: 12/05/2017
Haverkamp v. Penn, 2:17-CV-18 (S.D. Tex. May. 11, 2017)........................................................... iii
Helling v. McKinney, 509 U.S. 25 (1993)..................................................................................... 16-17
Herman v. Holiday, 238 F.3d 660 (5th Cir. 2001) .....................................................................15, 26
Johnson v. Treen, 759 F.2d 1236 (5th Cir. 1985) ........................................................................26
Kariuki v. Tarango, 709 F.3d 495 (5th Cir. 2013) ...........................................................................13
Konitzer v. Frank, 711 F. Supp. 874 (E.D. Wis. 2010) .................................................................32
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014)..............................................................................15
Long v. Nix, 877 F. Supp. 1358 (S.D. Iowa 1995) ...............................................................21
Lovelace v. Software Spectrum, 78 F.3d 1015 (5th Cir. 1996) ...........................................................................21
Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987) ...........................................................................16
Murray v. United States Bureau of Prisons, No. 95-5204, 1997 U.S. App. LEXIS 1716 (6th Cir. Jan. 28, 1997) ..............16
Norsworthy v. Beard, 74 F. Supp. 3d 1100 (N.D. Cal. 2015).............................................................23
Norsworthy v. Beard, 87 F. Supp. 3d 1104 (N.D. Cal. 2015).............................................................32
Praylor v. TDCJ, 430 F.3d 1208 (5th Cir. 2005) .......................................................15, 16, 17, 18
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Case: 16-51148 Document: 00514261733 Page: 9 Date Filed: 12/05/2017
Roper v. Simmons, 543 U.S. 551 (2005).........................................................................................25
Rosati v. Igbinoso, 791 F.3d 1037 (9th Cir. 2015) ...................................................................26, 28
Shadle v. Frakes, No. 8:16CV546, 2017 U.S. Dist. LEXIS 53731 (D. Neb. Apr. 7, 2017)........30
Soneeya v. Spencer, 851 F. Supp. 2d 228 (D. Mass. 2012)..............................................................23
Stone v. Trump, No. MJG-17-2459 (D. Md. Nov. 21, 2017).....................................................31
Tate v. Wexford Health Source, Inc., No. 3:16-cv-00092 U.S. Dist. LEXIS 20391 (S.D. Ill. Feb. 18, 2016) ...........30
Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991) ...........................................................................26
Whitley v. Albers, 475 U.S. 312 (1986).........................................................................................14
STATUTES & RULES 28 U.S.C. § 1331........................................................................................................1 29 U.S.C. § 1291........................................................................................................1 42 U.S.C. § 1983................................................................................................1, 6, 7
Fed. R. Civ. P. 56(a).................................................................................................14 Fed. R. Evid. 201(d).................................................................................................21 Fed. R. Evid. 201(b)(2) ............................................................................................21
CONSTITUTIONAL AMENDMENTS U.S. Const., amend. VIII.................................................................................. Passim
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OTHER AUTHORITIES Am. Med. Ass’n House of Delegates, Resolution 122 (A-08) Removing Financial Barriers to Care for Transgender Patients 1 (2008) http://www.tgender.net/taw/ama_resolutions.pdf. ................................................... 22 NCCHC, Transgender, Transsexual, and Gender Nonconforming Health Care in Correctional Settings (Apr. 2015) https://www.ncchc.org/ ............................................................................................23 “Pentagon Approves Gender-Reassignment Surgery for Service Member,” The New York Times (Nov. 14, 2017)....................................................................31 WPATH, Am. Psychiatric Ass’n, Report of the APA Task Force on the Treatment of Gender Identity Disorder 6 (2011).....................................................21 WPATH, Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A. (Dec. 21, 2016), http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352& pk_association_webpage=3947 ...............................................................................22 WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (2011)....................................................................20
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STATEMENT OF JURISDICTION The District Court had subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 because Gibson’s suit arose under 42 U.S.C. § 1983. This Court has jurisdiction over this appeal pursuant to 29 U.S.C. § 1291 because the District Court entered a final, summary judgment below. That judgment was entered on August 31, 2016, ROA.421, and Gibson timely filed a notice of appeal on September 12, 2016. ROA 422.23.
STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Whether Gender Dysphoria is a serious medical condition, as recognized by the unanimous consensus of reputable medical organizations, for purposes of the Eighth Amendment? 2. Whether Sex Reassignment Surgery is a potential medically necessary treatment for some who suffer from Gender Dysphoria, as recognized by the consensus medical standard of care required for transgender individuals, for purposes of the Eighth Amendment? 3. Whether the District Court erred in granting summary judgment against Gibson’s claim that Texas’ prohibition of Sex Reassignment Surgery as a potential treatment for inmates suffering from Gender Dysphoria violates her Eighth Amendment rights by being “deliberately indifferent” to her serious medical needs?
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STATEMENT OF THE CASE The facts concerning Gibson’s condition, and those surrounding the District Court’s ruling, are quite narrow indeed. As a result, this case presents an uncluttered record on which this Court can directly address the important legal questions at issue herein.
Gibson’s Transgender Condition Gibson is a pre-operational male-to-female transgender inmate currently incarcerated at the A. Hughes Unit of the Texas Department of Criminal Justice in Gatesville, Texas. ROA.397. She has openly lived as a female for over twenty years, since the age of fifteen. ROA.388-89. Gibson is a “female trapped in a male’s body.” ROA.397. When Gibson entered TDCJ in 1995, she immediately requested to be treated, but her request was denied because TDCJ had a policy at the time prohibiting treatment for transgender inmates who were not diagnosed before incarceration. ROA.398-99. As a result, throughout her incarceration, Gibson has suffered from “severe depression and the thoughts of suicide [have become] more prevalent and realistic.” ROA.398-99. Gibson’s condition has led her to abuse her testicles by tying a string around them until they are swollen and dark purple, causing her severe pain. ROA.407.
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She does this to “stop the testosterones [sic] from entering into [her] body” and “to destroy [her] testicles” because “the pain of having them is overwhelming and [she] cannot cope.” ROA.392. She also abuses her penis by “pulling it, bending it” and she “pulled it one day so hard [she] heard a pop, and severe pain shot into [her] stumach [sic] and [she] threw up.” ROA.392. She asserts she has “been having serious thoughts of removing [her] testicles because they make [her] sick, make [her] feel deformed, and [she] cannot live in peace” because she is in “[constant] mental and physical anguish!” ROA.392. As she experiences it, her “sex organs . . . don’t belong to [her] and [she is] tired of being forced to live with them!” ROA.393.
She has also attempted suicide three times while incarcerated. ROA.407. She cut a vein in her arm, causing substantial blood loss, tried to hang herself with her light cord, and overdosed on medication. Id. She has also cut herself “over 100 times.” ROA.407. While Gibson “doesn’t claim she attempted suicide solely due to her gender related condition, . . . it did play a significant part in her suicide attempts because the constant stress she deals with is at times overwhelming.” ROA.398-99. She “feel[s] Deformed, Nasty and it makes [her] Hate [her] body to the point [she] want[s] to Die.” ROA.406.
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Gibson’s Diagnosis With Gender Dysphoria In 2014, TDCJ rescinded the “non-treatment” policy described above and Gibson then renewed her request for treatment. ROA.266-70. TDCJ refused Gibson’s request again, however, because “medical was still enforcing the old policy.” ROA.398-99. “After expressing her desire to casterate [sic] herself,” Gibson was sent to Sky View Unit, a psychiatric facility. ROA.398-99. At Sky View, psychiatrist Robin L. Rigsby diagnosed Gibson with Gender Dysphoria. ROA.386.
Gibson Continues To Suffer From Her Condition Gibson regularly informed prison officials of her distress and repeatedly requested her penis and testicles be removed because “having them make[s] [her] sick.” ROA.302-04. She has to “wear socks over [her] hand to use the restroom and to take a shower.” ROA.407. Gibson has told “every nurse, doctor” that she will cut her penis and testicles off if she does not get treatment. ROA.407. She has “written Medical over 30 times about this and they [told her] she will never get a Sex change or be treated.” ROA.407. Gibson has repeatedly informed doctors of the extreme mental and physical anguish she suffers on a regular basis. ROA.30204.
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Limited Treatment Is Prescribed For Gibson In early 2015, Gibson’s primary care doctor at the University of Texas Medical Branch (Dr. McKinney) prescribed certain treatments for Gibson’s GD. ROA. 238. Specifically, the doctor prescribed hormone therapy with estrogenpremarin, spirolactone, and finestreride, as well as the “real-life” experience, such as access to a bra. ROA.390. However, Dr. Greene at the prison refused to allow Gibson the opportunity for the real-life experience portion of her treatment, stating “I have never authorized a ‘Man’ a pass to live as a female and I will never do it!” ROA.390 (emphasis added).
Gibson Is Denied Evaluation For SRS Treatment As a result of her GD and as a consequence of her continued suffering, Gibson has repeatedly requested that she be considered for SRS. ROA.305. In response to those requests, Gibson has been told that “TDCJ/UTMB does not provide inmates sex changes for any reason.” ROA.394 (emphasis added). In addition, because of the TDCJ’s blanket prohibition on SRS, Gibson has not even “been evaluated to see if SRS would adequately treat [her] condition, nor has any doctor made a sound medical judgment [about that potential treatment option] based on [her] medical needs.” ROA.394. When she wrote a letter to the Director of TDCJ (Brad Livingston) explaining her condition, her depression, and
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her thoughts of suicide and self-mutilation, she received a letter in return advising her to put in a sick call. ROA.394 (emphasis added).
Gibson believes that “if [she doesn’t] get a Sex change [she] will end up committing suicide because the older [she becomes] the strong[er] [her] pain gets, as well as the need to abuse [her] body parts.” ROA.407.
Gibson Files A Lawsuit Over Her Lack Of Treatment Feeling left with no alternative by the repeated denials of her requests for treatment, on June 9, 2015, Gibson filed a pro se complaint in the Western District of Texas, Waco Division, against TDCJ Director Brad Livingston (“the Director”),2 an unknown University of Texas Medical Branch (“UTMB”) Policy Maker, and the Municipality of Gatesville, Texas, alleging violations of her rights under 42 U.S.C. §1983. ROA.376. The heart of Gibson’s claim was the TDCJ’s “enforce[ment] of a systematic ban on sex reassignment surgery, which creates a policy of deliberate indifference to her gender dysphoria because they refuse to allow her to be evaluated to determine if sex reassignment surgery would be a viable medical treatment option based on her medical needs. Consequently, Plaintiff has to suffer severe mental anguish that causes her to have realistic thoughts of committing suicide and of self-castration.” ROA.380. As relief on this
2 Bryan Collier subsequently took over the role of TDCJ’s Executive Director from Livingston, as reflected in the current case caption on appeal.
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claim, Gibson sought a “declaration that this ban is unconstitutional” and a “permanent injunction” against its ongoing enforcement. ROA.380.
On October 7, 2015, the Director answered Gibson’s complaint. His answer denied all of Gibson’s allegations and asserted that Gibson “has failed to state a claim for which relief can be granted under 42 U.S.C. § 1983.” ROA.136. The Director also asserted various affirmative defenses and immunities against Gibson’s claims. ROA.137-38.
On October 20, 2015, the Municipality of Gatesville, Texas moved to dismiss the claims against it, arguing that it had no role in setting TDCJ policy concerning inmate medical treatment. ROA.157. The district court granted this motion on November 17, 2015. ROA.402.
On December 21, 2015, Gibson sought leave to amend her complaint to include Dr. Greene as a defendant. ROA.402. Greene was the physician who refused to allow Gibson to be treated for her GD as prescribed by her UTMB primary care doctor. ROA.235-247. As Gibson put it: “Dr. Greene is not a Gender Dysphoria specialist and has never actually treated this medical condition. Therefore he is not qualified to deny Plaintiff this treatment nor is he legally qualified to treat Gender Dysphoria.” ROA.240. The District Court sua sponte dismissed Gibson’s claims against Greene as a matter of law because “Plaintiff
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cannot state a claim for deliberate indifference based on Dr. Greene’s refusal to
provide Plaintiff with SRS in accordance with TDCJ policy.” ROA 418-21.
On February 19, 2016, the Director filed a motion for summary judgment
arguing there was no issue of material fact in dispute as he was (1) entitled to
qualified or Eleventh Amendment immunity and (2) not deliberately indifferent to
Gibson’s serious medical needs. ROA.398. The Director’s grounds for summary
judgment on the merits of Gibson’s Eighth Amendment claim were presented in
three brief pages of text. ROA.259-61. The crux of this argument was its
recharacterization of Gibson’s claims as follows:
Plaintiff complains that sex reassignment surgery is a cure to his gender dysphoria and that Defendant is medically indifferent to his serious medical needs because she hasn’t been provided sex reassignment surgery. Plaintiff does not get to choose her medical treatment. Plaintiff’s medical records indicate that she is and has received extensive treatment regarding gender dysphoria. Plaintiff is receiving hormone treatment therapy in accordance with the Correctional Managed Health Care Policy Manual, as well as mental health services. Plaintiff’s disagreement with the course of treatment pursued by prison medical staff does not constitute a viable claim for deliberate indifference to serious medical needs under the Eighth Amendment.
ROA.260.
On March 11, 2016, Gibson filed a pro se response in opposition to the
Director’s motion for summary judgment arguing there was a genuine issue of
material fact as to whether (1) Gibson had a serious medical condition in GD, (2)
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TDCJ’s policy for treating GD did not follow that of prudent medical professionals

(as illustrated by WPATH) because those policies effectively eliminated SRS as a

treatment option, and (3) the Director was deliberately indifferent to Gibson’s medical needs by enforcing TDCJ’s policy against Gibson. ROA.299-320.3 The

gravamen of Gibson’s opposition was to focus on the right to have her

“individualized medical needs” determined rather than be subject to the TDCJ’s

“blanket policy that denies Transgender inmates SRS and allows TDJC’s Doctors

to ignore their condition by not fully assessing their individualized medical needs

to determine if SRS would adequately treat her condition.” ROA.305. Gibson

further explained:

ROA.305.

The Defendants claim that Plaintiff cannot choose the care she wants. Plaintiff is not demanding SRS. If the Court goes by her Complaint, it’s clear that she is not requesting SRS, rather she is requesting to be evaluated by a GID specialist so the doctor can fully assess her condition and determine whether or not based on her individualized medical needs SRS would adequately treat her condition. If her Doctor cannot assess her medical needs, her condition will not be treated nor will there be a sound medical judgment made.

On August 31, 2016, the district judge granted the Director’s motion for

summary judgment. ROA.419. The district court held that no reasonable trier of

fact could determine that Livingston’s conduct in TDCJ’s failure to offer SRS to

3 Gibson also opposed the Director’s arguments for Qualified and Eleventh Amendment immunity. The District Court subsequently ruled in favor of Gibson on these arguments because she was not seeking any monetary relief on his claims, only injunctive relief. ROA.412-13.
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Gibson amounted to deliberate indifference. ROA.416-17. In doing so, the District Court was influenced by the fact that there was no controlling precedent in this Circuit suggesting that inmates are constitutionally entitled to SRS as a treatment for GD. ROA.416-17. And it was uninfluenced by the WPATH Standards of Care which Gibson cited as support for his contention that SRS was a potentially medically necessary treatment for her GD that should be evaluated. ROA.416.
This appeal followed.4 Initial Briefing Before This Court
On initial briefing in this Court before undersigned counsel was appointed to file this supplemental brief, the parties submitted the following elucidation of the issues.
Gibson argued, inter alia, that “Gender Dysphoria is a serious medical condition that triggers the protection of the Eighth Amendment” and that “Plaintiff’s factual allegations that the Defendants denied her Sex Reassignment Surgery (SRS) based on a blanket policy that denies her and other Transgender inmates SRS and other treatment and care that the Standard of care for Transgender Health Care recommends raised a material issue under the Eighth
4 This Court subsequently entered an order appointing undersigned counsel to represent Gibson through the filing of this Supplemental Brief on appeal. See Letter From Deputy Clerk Shawn Henderson to Stephen L. Braga dated October 10, 2017.
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Amendment.” Gibson Initial Brief (“Gibson IB”) at 1-2. In support of these claims, Gibson cited “The World Professional Association For Transgender Health (‘WPATH’), a professional Association dedicated to establishing the Standards for treating Gender Dysphoria,” and noted that “[t]hese Standards are accepted by the medical community and Federal courts.” Gibson IB at 12.5 According to Gibson, the WPATH “treatment protocols include socially transitioning (dressing, grooming, and presenting oneself to others in accordance with one’s gender identity), hormone therapy, and surgeries. The particular course of medical treatment varies on the individualized needs of the person.” Gibson IB at 14.6 By contrast, “TDCJ has designed a health care policy designed to fit all Transgender inmates without actually basing the care on their individualized medical needs, and [under] Policy G.51.11 Plaintiff and other transgender inmates treatment is frozen at the first phase of the treatment.” Gibson IB at 18.
In his initial brief, the Director argued that “Gibson failed to produce evidence suggesting that the care provided for in G-51.11 is so inadequate as to shock the conscience.” Brief Of Defendant-Appellee Bryan Collier (“Director IB”) at 6. According to the Director, “[t]o support his assertion that mental health
5 Gibson also noted that “The National Commission on Correctional Healthcare” cited “the WPATH standards of care” in connection with “the medical management of prisoners with gender dysphoria.” Gibson IB at 13. 6 With respect to each patient’s “individualized needs,” Gibson also pointed to WPATH’s recognition “that while many individuals need both hormone therapy and surgery to alleviate their gender dysphoria, others need only one of these treatment options and some need neither.” Gibson IB at 18.
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counseling and hormone therapy are inadequate, Gibson relied on the WPATH guidelines. But while those guidelines do recommend SRS as a form of treatment, they provide no help in determining whether diverging from those guidelines shocks the conscience.” Director IB at 7. The Director also argued that “Gibson failed to produce evidence suggesting that G-51.11amounts to deliberate indifference.” Director IB at 7. As the Director saw it, “[e]ven if Gibson did produce evidence suggesting that SRS is medically necessary to adequately treat GD, his claim would still fail because he failed to produce any evidence suggesting that anyone ‘knew or should have known this fact, but nonetheless failed to respond in an appropriate manner.’” Director IB at 7-8.
SUMMARY OF THE ARGUMENT In granting summary judgment, the district court erred by not accepting and deferring to the established consensus of reputable U.S. medical organizations as required by Supreme Court Eighth Amendment jurisprudence. There is virtually unanimous medical consensus around the World Professional Association for Transgender Health’s (“WPATH”) Standards of Care prescribing the level of care required for the adequate care of transgender patients suffering from gender dysphoria. (Indeed, even the TDCJ itself has adopted “parts” of those WPATH standards.) Not surprisingly, therefore, the Courts have almost uniformly deferred to those standards as well.
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Yet TDCJ’s policy explicitly deviates from the Standards by not allowing consideration of SRS as a potentially medically necessary treatment for GD, which prevents evaluation of - and potential accommodation for - each individual’s unique medical circumstances. WPATH’s Standards of Care do not provide such flexibility for the provider of care to deviate from the Standard when treating gender dysphoria. By deciding on its own to remove this one aspect of the GD standard of care, the TDCJ has effectively gutted the potential care plan required for those at the most extreme end of the treatment spectrum.
Policy G51.11 constitutes a blanket ban on SRS as a potential treatment for gender dysphoria. It prevents TDCJ from making individualized determinations of inmates’ medical needs. TDCJ’s repeated refusals to consider SRS as a treatment for inmates like Gibson who continue to experience symptoms of gender dysphoria after other treatments have been prescribed constitutes deliberate indifference to serious medical needs. TDCJ prison officials are well aware of Gibson’s history of self-harm and repeated attempts at self-castration and suicide. The refusal to allow consideration of such a recognized additional treatment options disregards an excessive risk that Gibson will harm herself in the future.
STANDARD OF REVIEW “This Court reviews a district court’s grant of summary judgment de novo, applying the same standard as the district court” Kariuki v. Tarango, 709 F.3d 495,
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501 (5th Cir. 2013). In reviewing such a judgment, the facts “must be viewed ‘in the light most favorable to the nonmoving party’ and ‘all reasonable inferences’ must be drawn in favor of that party.” Griffin v. Hess Corp., No. 17-30165, 2017 U.S. App. LEXIS 22011, at *4 (5th Cir. Nov. 3, 2017) (internal citation and quote marks omitted). And summary judgment is proper only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
ARGUMENT The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. CONST., amend. VIII. The Supreme Court has specifically identified the deliberate indifference to a serious medical need as a violation of the Eighth Amendment because such actions can “produce physical ‘torture or a lingering death.’” Estelle v. Gamble, 429 U.S. 97, 103-104 (1976). “It is . . . obduracy and wantonness” that defines such an Eighth Amendment violation, whether it “occurs in connection with establishing conditions of confinement, supplying medical needs, or returning order to a tumultuous cellblock.” Whitley v. Albers, 475 U.S. 312, 319 (1986). To state a claim under the Eighth Amendment for deliberate indifference to a serious medical need, the plaintiff must satisfy two prongs. First, the plaintiff must show the prison officials were “aware of facts from which an inference of
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excessive risk to the prisoner’s health or safety could be drawn.” Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001).7 Second, the plaintiff must demonstrate that the prison officials acted with “deliberate indifference” to such “potential harm,” as evidenced by denials of requests for treatment, disregard for ongoing symptoms and the like. Holiday, 238 F.3d at 664.
I. GENDER DYSPHORIA IS A SERIOUS MEDICAL CONDITION In Praylor v. TDCJ, 430 F.3d 1208, 1209 (5th Cir. 2005), this Court
“[a]ssum[ed], without deciding, that transexualism does present a serious medical need.” In the District Court, the Director went one step further and asserted that “based upon the existence of policy G-51.11, TDCJ appears to recognize gender disorder as a serious medical need.” Defendant’s Motion For Summary Judgment at 7.8 The Director’s concession in this regard is well-taken in light of the continually evolving standards surrounding GD.
Thus, other courts have consistently recognized gender dysphoria as a serious medical condition. See Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (“That GID is a serious medical need, and one which mandates treatment, is not in dispute in this case.”); De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (“De’lonta has alleged an objectively serious medical need for protection against
7 See also Farmer v. Brennan, 511 U.S. 825, 838 (1996). 8 As the District Court put it in reliance on these moving papers, the Director “does not argue that GID/GD is not a serious medical condition for Fifth Amendment purposes.” Order of August 31, 2016 (“Dist. Ct. Order”) at 15.
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continued self-mutilation.”); Allard v. Gomez, 9 Fed. App’x 793, 794 (9th Cir. 2001) (mem.) (“It is now undisputed that the appellant suffered from [gender identity disorder], that appellant repeatedly sought hormone treatment for it . . . and that the disorder constituted a serious medical need.”); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 U.S. App. LEXIS 1716, *11 (6th Cir. Jan. 28, 1997) (per curiam) (“[T]ranssexualism is a recognized medical disorder, and transsexuals often have a serious medical need for some sort of treatment”); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (“Courts have repeatedly held that treatment of a psychiatric or psychological condition may present a “serious medical need” under the Estelle formulation . . . [t]here is no reason to treat transsexualism differently than any other psychiatric disorder. Thus . . . plaintiff’s complaint does state a “serious medical need.””).
Based on this unanimity of opinion, this Court should not hesitate to make it clear in this Circuit from this point forward that GD is a serious medical condition for purposes of the Eighth Amendment. It is time to resolve this question of first impression left open in the twelve years since Praylor.9 Plainly, that question must be resolved in Gibson’s favor.
It is important in this analysis, however, not only to recognize that GD is a serious medical condition, but also to recognize just how serious it is. See Helling
9 Thus, the court below should be the last to have to consider the fact that “[t]he Fifth Circuit has yet to recognize unequivocally that transsexualism presents a serious medical need.”
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v. McKinney, 509 U.S. 25, 33 (1993)(evaluating the significance of the risk of future harm). As the facts of record concerning Gibson’s situation amply reveal, inadequate treatment for inmates suffering from gender dysphoria presents a significant risk of future self-harm and psychological suffering. Without appropriate treatment, those inmates - like Gibson - can continue to struggle with thoughts of self-mutilation and suicide as a result of their condition.10 Death can, thus, be the unfortunate result of mistreated GD. Nothing is more “serious” than that.
II. SEX REASSIGNMENT SURGERY IS A POTENTIALLY MEDICALLY NECESSARY TREATMENT FOR GENDER DYSPHORIA
Once GD is properly recognized as a serious medical condition, the Eighth Amendment analysis then turns to the potential treatments for that condition. The District Court stumbled in this regard on this Court’s holding in Praylor II that “the refusal to provide hormone therapy” did not constitute “deliberate indifference” to Praylor’s medical needs. Dist. Ct. Order at 18. As the district judge explained, “[w]ith this precedent, the Court cannot make the leap to hold that a policy that does not provide surgery to treat GID/GC necessarily constitutes deliberate indifference.” Id. at 18-19.
10 As Exhibit 3 submitted in support of Gibson’s opposition to the motion for summary judgment against him below indicates: “An October 2010 study done by the National Center for Transgender Equality found that 41% of transgender people in the U.S. have attempted suicide, compared to a rate of 1.6% for the general population.”
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Like all decisions, of course, the Praylor precedent is limited to its own facts, which are dramatically different than the facts before this Court. For example, in Praylor’s situation, hormone therapy was available as a treatment option in the prison and Praylor was evaluated for such therapy on two occasions. See 430 F.3d at 1209. In this case, Gibson’s complaint is predicated on the fact undisputed by the Director - that SRS is not available as a treatment option in the prison. Similarly, in Praylor’s case, there is no indication that Praylor had been diagnosed with GD. See id. In this case, by contrast, Gibson has been labeled with that serious diagnosis. Finally, in Praylor’s case, the prison’s evaluation of him concluded that there was no “medical necessity for the hormone.” Id. In Gibson’s case, her principal complaint is that prison policy G-51.11 robs her of the opportunity to have any such individualized determination of the potential medical necessity of SRS made for her GD.
But perhaps the most important distinction between Praylor and this case is the fact that the Praylor decision does not contain any discussion whatsoever of the authoritative medical consensus concerning the WPATH Standards of Care for Transgender Health, which have evolved significantly since Praylor. Yet in this
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Court, those standards are front and center for review, as part of another question of first impression for this Court to review.11
A. WPATH’s Standards of Care are Universally Accepted by the Medical Community as the Appropriate Standards of Care for Transgender Individuals, Including Incarcerated Individuals.
The World Professional Association for Transgender Health (“WPATH”)12
develops and publishes the Standards of Care for the Health of Transsexual,
Transgender, and Gender-Nonconforming People (Standards of Care), which are
recognized in the medical community as the authoritative standards for the
provision of transgender health care. Gibson submitted the WPATH Standards of
Care to the District Court Exhibit 4 to his opposition to the Director’s summary
judgment motion. As relevant to this case, Standard of Care XI for “Surgery” and
titled “Sex Reassignment Surgery Is Effective and Medically Necessary,”
provides:
Surgery - particularly genital surgery - is often the last and the most considered step in the treatment process for gender dysphoria. While many transsexual, transgender and gender non-conforming individuals find comfort with their gender identity, role and expression without surgery, for many others surgery is essential and medically necessary to alleviate their
11 Cf. Dist. Ct. Order at 17 (recognizing Gibson’s case as presenting “an issue of first impression in this Circuit” because “there is no Fifth Circuit precedent holding that denying an inmate SRS to treat GID/GD amounts to an Eighth Amendment violation”). 12 WPATH is an international professional association with membership consisting of more than 600 physicians, psychologists, social scientists, and legal professionals dedicated to the treatment of gender identity disorders.
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gender dysphoria. For the latter group, relief from gender dysphoria cannot be achieved without surgery.
Exhibit 4 at 9-10.13 This is in direct contrast with the Texas Department of
Criminal Justice’s (“TDCJ”) policy on the “Treatment of Offenders with Intersex
Conditions,” which remains silent as to the availability of SRS and instead
practically limits the available care to hormonal therapy, which is insufficient.
ROA.69.10-ROA.69.11.
The district court below did not fully consider TDCJ’s inadequacy under the
WPATH Standards of Care because Gibson provided “no witness testimony or
evidence from professionals in the field demonstrating that the WPATH-suggested
treatment option of SRS is so universally accepted, that to provide some but not all
of the WPATH-recommended treatment amounts to deliberate indifference.”14
ROA.69.19.
13 However, as this option is “often the last and the most considered step in treatment” per WPATH’s Standards of Care, SRS would be medically permissible only after the patient receives two referrals from medical professionals. In such a referral, medical professionals must verify that the patient has a “persistent, well documented gender dysphoria” and state the “clinical rationale for support in the patient’s request for surgery.” WPATH, STANDARDS OF CARE FOR THE HEALTH OF TRANSSEXUAL, TRANSGENDER, AND GENDER NONCONFORMING PEOPLE 27-8, 59 (2011) (“Standards of Care”). The rationale requirement is usually met by stating the inadequacy of less intrusive treatment options such as lifestyle treatment (such as wearing gender conforming clothes) and hormone therapy. 14 The district court also appeared to charge the appellant with the burden of negating all of the institutional safety and other concerns associated with implementation of the treatment alternative. Id. Affirmative proof of such factual concerns should more properly fall on the institution in the first instance. See Fields v. Smith, 653 F.3D 550, 557 (7th Cir. 2011) (Defendant sought proof of their institutional concerns through their expert witness, of which, was rejected due to substantial risk of transgender violence even without treatment); see also,
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Although Gibson, a pro se plaintiff below, did not directly present evidence of the WPATH Standard of Care’s “universal[] acceptance,” such universal acceptance by the medical community can readily be factually inferred and/or judicially noticed under FED. R. EVID. 201, especially at the summary judgment phase.15 It is undisputed, in fact, that all reputable U.S. medical organizations have recognized WPATH as the proper standard of care. No professional organization of mental health care, including the APA, has prescribed its own standards of care for transgender individuals suffering from gender dysphoria; all instead all defer to WPATH, AM. PSYCHIATRIC ASS’N, REPORT OF THE APA TASK FORCE ON THE TREATMENT OF GENDER IDENTITY DISORDER 6 (2011). WPATH, thus, stands alone in this regard, as even the TDCJ has implicitly recognized by deciding to follow “some . . . of the WPATH-recommended treatment.” Dist. Ct. Order at 19.
In addition, the American Medical Association articulated unequivocally that WPATH “is the leading international, inter-disciplinary professional organization devoted to the under-standing and treatment of gender identity disorders, and has established internationally accepted Standards of Care for providing medical
Long v. Nix, 877 F. Supp. 1358, 1361 (S.D. Iowa 1995) (Defendant had acting warden testify in effort to prove the institutional concerns). 15 Specifically, FED. R. EVID. 201(b)(2) states that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Furthermore, “The court may take judicial notice at any stage of the proceeding.” FED. R. EVID. 201(d). See also Lovelace v. Software Spectrum, 78 F.3d 1015, 1018-19, n.1 (5th Cir. 1996) (A court may under FED. R. EVID. 201(b)(2) consider the contents of Securities Exchange Commission public disclosure documents not incorporated into the complaint).
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treatment for people with [gender dysphoria] including…sex reassignment surgery, which are… recognized within the medical community to be the standard of care for treating people with [gender dysphoria].” AM. MED. ASS’N HOUSE OF DELEGATES, RESOLUTION 122 (A-08) REMOVING FINANCIAL BARRIERS TO CARE FOR TRANSGENDER PATIENTS 1 (2008), http://www.tgender.net/taw/ama_resolutions.pdf.
Similar support for the WPATH Standard of Care has been articulated by the Endocrine Society, the American Psychological Association, the American Academy of Family Physicians, the American Public Health Association, the National Association of Social Workers, the American College of Obstetrics and Gynecology, the American Society of Plastic Surgeons, and the World Health Organization. WPATH, Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A. (Dec. 21, 2016), http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352&pk_a ssociation_webpage=3947.
Finally, and most importantly, the National Commission on Corrective Health Care (“NCCHC”) cites the WPATH Standards of Care as “[t]he…accepted standards developed by professionals with expertise in transgender health,” that prison doctors must follow in treating prisoners suffering from gender dysphoria.
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NCCHC, Transgender, Transsexual, and Gender Nonconforming Health Care in Correctional Settings (Apr. 2015), https://www.ncchc.org/ transgender-transsexual-and-gender-nonconforming-health-care.
Thus, not only was TDCJ’s policy for transgender prisoners below the medical community’s consensus to follow the WPATH’s standards for the transgender community in general—given the NCCHC’s adherence to WPATH standards, TDCJ’s policy also fell short of the standards directed by the national medical commission to ensure the proper standard of care for prisoners.
This overwhelming consensus from the medical community has led naturally to the WPATH Standards of Care similarly being recognized by various U.S. courts, including the Fourth Circuit, as the preeminent authority for the care required for correctional inmates. De'Lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (describing WPATH as “the generally accepted protocols” for treatment of gender dysphoria); Norsworthy v. Beard, 74 F. Supp. 3d 1100, 1104 (N.D. Cal. 2015) (describing WPATH as the “leading medical research and standards of care” and granting prisoner suffering from gender dysphoria a preliminary injunction for SRS based on the expert medical consensus from WPATH); Soneeya v. Spencer, 851 F. Supp. 2d 228, 231 (D. Mass. 2012) (recognizing “the ‘Standards of Care’ promulgated by the [WPATH]” as “the course of treatment for Gender Identity Disorder generally followed in the community”); Fields v. Smith, 712 F. Supp. at
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838 n.2 (E.D. Wis. 2010) (acknowledging WPATH’s Standard of Care as “the worldwide acceptable protocol for treating GID”), aff’d 653 F.3d 550 (7th Cir. 2011).
B. By Not Deferring to the Clearly Established Medical Expert Consensus of WPATH’s Standards of Care, the District Court Departed from Clear U.S. Supreme Court Precedent and Eighth Amendment Jurisprudence.
The district court erred in refusing to defer to the general consensus of the medical community that the WPATH standards of care govern the treatment of gender dysphoria prisoners. This refusal violates U.S. Supreme Court precedent and Eighth Amendment jurisprudence, especially for purposes of ruling on a motion for summary judgment when all reasonable factual inferences must be found in favor of the non-moving party.
In considering Eighth Amendment cases involving complex medical science, the Supreme Court has repeatedly deferred to the existing general consensus in the medical community. In Akins v. Virginia for instance, the Supreme Court determined that the state justification of retribution and deterrence for the execution of mentally retarded prisoners violated the Eighth Amendment. 536 U.S. 304, 319-20 (2002). The Court arrived at this conclusion after deferring to the general consensus of medical experts from the American Association on Mental Retardation and the American Psychiatric Association as to the clinical definition of mental retardation. Id., at 318.
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Again, when considering a matter of Eighth Amendment jurisprudence in Roper v. Simmons, the Supreme Court deferred to the consensus of the expert medical community. 543 U.S. 551, 569 (2005). In finding an Eighth Amendment violation for juvenile capital punishment, the Supreme Court relied on a consensus of “scientific and sociological studies” in holding that juveniles cannot reliably be considered to hold the same moral reprehensibility as adult worst offenders. Id. The District Court should have followed the same approach here.
III. TDCJ’S DENIAL OF SRS AS A POTENTIAL TREATMENT FOR INMATES SUFFERING FROM GD VIOLATES GIBSON’S EIGHTH AMENDMENT RIGHT TO MEDICAL CARE
Even if this court does not find error in the lower court’s refusal to defer to the medical community’s acceptance of the WPATH standards of care, this court should still reverse the District Court’s decision on Eighth Amendment grounds. In the light most favorable to the plaintiff, the facts of this case demonstrate, at the very least, a deliberate indifference to Gibson’s serious medical condition and risk of serious harm in the future.
The repeated denial of Gibson’s requests for consideration for SRS constitutes deliberate indifference to her serious medical needs in light of her continuing symptoms. She has presented factual allegations which, when taken as true, as required in this appeal, demonstrate that her medical condition is serious and that the defendants are aware of the serious risk resulting from her symptoms.
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The defendants have nonetheless continued to deny her requests for consideration for SRS based on Policy G 51.11’s blanket ban rather than an individualized medical assessment. Gibson’s allegations state a valid claim under the Eighth Amendment’s protections against cruel and unusual punishment and should be resolved at trial.
It is a truism that under the Eighth Amendment, inmates are not entitled to ideal care or care of their choosing. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Rather, the plaintiff must show that the prison officials were “aware of facts from which an inference of excessive risk to the prisoner’s health or safety could be drawn” and that the prison officials “actually drew an inference that such potential for harm existed.” Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001). Under this standard, the plaintiff must show officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Id. (citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
Other circuits have found that the denial of consideration for SRS can constitute an Eighth Amendment violation, particularly where the denial is based on a policy creating a blanket ban on surgery without consideration of the inmate’s specific circumstances. See Rosati v. Igbinoso, 791 F.3d 1037, 1039-40 (9th Cir. 2015) (finding a viable Eighth Amendment claim where California prison denied
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her sex reassignment surgery based on a blanket ban or the recommendation of a physician’s assistant without experience in transgender medicine); De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (finding plaintiff’s complaint sufficient to state a claim where she suffered from constant mental anguish and overwhelming urges to castrate herself); Fields v. Smith, 653 F.3d 550, 555 (7th Cir. 2011) (finding a state policy prohibiting the use of state funds for hormone therapy and sex reassignment surgery was unconstitutional because it prohibited effective treatment for a serious medical condition).
In De’lonta v. Johnson, the Fourth Circuit reversed the lower court’s dismissal where the plaintiff suffered from constant mental anguish and overwhelming urges to castrate herself despite having received hormone therapy, mental health consultations, and real-life experiences. De’lonta, 708 F.3d at 525. De’lonta had been repeatedly hospitalized following self-castration attempts and had repeatedly requested SRS under the WPATH Standards of Care for gender dysphoria. De’lonta, 708 F.3d at 522. The court held that, while the prison had provided some treatment for De’lonta’s gender dysphoria, “it does not follow that they have provided the constitutionally mandated level of treatment” and that the plaintiff did not need to show “a total deprivation of care” for the court to find “a constitutional violation.” Id. The court recognized that while hormone therapy and
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real-life experiences can treat some cases of gender dysphoria, others require SRS when the symptoms persist. Id. at 523.
The state’s argument that SRS was merely a preferred treatment failed to acknowledge the ongoing symptoms of De’lonta’s underlying condition. Id. Although the requisite level of treatment cannot be determined solely by the inmate’s choice, it must address the serious medical need causing the inmate’s suffering. Id. The Fourth Circuit made a helpful comparison to painkillers prescribed for persistent pain, explaining that the prison could not deny an inmate consideration for surgery just because she had received one form of treatment if it had not alleviated her symptoms. Id. at 526.
Similarly, in Rosati v. Igbinoso, the Ninth Circuit found the plaintiff’s complaint was sufficient to state a claim where she alleged the prison had denied her request for SRS in a California prison based either on a blanket ban or on the recommendation of a physician’s assistant without any experience treating transgender patients. 791 F.3d at 1039-40. While the state argued there was no blanket ban, it also admitted that, “no California prisoner has ever received SRS,” suggesting no request for the procedure would be approved. Id. at 1040. The court held that “even absent such a blanket ban, Rosati plausibly alleges her symptoms (including repeated efforts at self-castration) are so severe that prison officials recklessly disregarded an excessive risk to her health by denying SRS solely on the
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recommendation of a physician’s assistant with no experience in transgender medicine.” Id. at 1040.
In Fields v. Smith, the Seventh Circuit affirmed the lower court’s determination that a Wisconsin statute prohibiting the prescription of hormone therapy and SRS was unconstitutional on its face and as applied to the plaintiffs because it violated the Eighth Amendment. 653 F.3d 550. The Seventh Circuit affirmed the district court’s holding that “plaintiffs suffered from a serious medical need, namely GID, and that defendants acted with deliberate indifference in that defendants knew of the serious medical need but refused to provide hormone therapy because of [the statute].” Id. at 555. The court cited testimony from doctors stating they could think of “no other state law or policy, besides [the Act in question], that prohibits prison doctors from providing inmates with medically necessary treatment” as evidence that hormone therapy and SRS are necessary medical treatments for inmates suffering from gender identity disorder. Id. at 554.
Similar to the Fourth Circuit, the Seventh Circuit stated that “[s]urely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional.” Id. at 556. The court viewed both cancer and transsexualism as serious medical conditions requiring treatment and stated that the refusal to provide effective treatment “serves no valid penological
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purpose and amounts to torture.” Id. at 556. While the statute in question prohibited both hormone therapy and SRS, the court refused to separate the two treatments because the statute removed any consideration of either treatment for inmates suffering from gender identity disorder regardless of medical need. Id. at 559.
Not surprisingly in light of the ample authority delineated above, District Courts throughout the country have similarly found blanket bans on consideration for SRS as a treatment for gender dysphoria to be unconstitutional under the Eighth Amendment. See Denegal v. Farrell, No. 1:15-cv-01251, U.S. Dist. LEXIS 83373 (E.D. Cal. May 31, 2017) (refusing to order summary judgment where a transgender woman alleged vaginoplasty was medically necessary to treat her GID and was only available for cis women); Shadle v. Frakes, No. 8:16CV546, 2017 U.S. Dist. LEXIS 53731 (D. Neb. Apr. 7, 2017) (stating the alleged denial of hormone therapy and SRS was sufficient to overcome summary judgment); Tate v. Wexford Health Source, Inc., No. 3:16-cv-00092 U.S. Dist. LEXIS 20391, at *7, *10 (S.D. Ill. Feb. 18, 2016) (holding summary judgment is inappropriate where the prison’s policy prevents evaluation for SRS and fails to train personnel to treat transgender inmates); Barrett v. Coplan, 292 F. Supp. 281 (D.N.H. 2003) (finding the plaintiff’s complaint was sufficient where a policy prohibited hormone therapy and SRS despite repeated self-castration and suicide attempts).
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The federal government has now come in line solidly behind these Courts as well. Just two weeks ago, United States District Court Judge Marvin Garbis issued a preliminary injunction against implementation of the Department of Defense’s new policies with respect to transgender members of the military, which included a directive aimed at future funding for Sex Reassignment Surgery. See Stone v. Trump, Civil Action No. MJG-17-2459 (D. Md. Nov. 21, 2017). In the course of addressing the claims before him, Judge Garbis noted that the federal “[d]efendants do not dispute that the military has a statutory obligation to provide medicallynecessary treatment, nor that surgical procedures are sometimes necessary to treat transgender individuals who have been diagnosed with gender dysphoria.” Memorandum And Order Re: Motions at 51.
And just a week before Judge Garbis‘ decision, the Pentagon approved SRS for an active-duty transgender member of the military. See “Pentagon Approves Gender-Reassignment Surgery for Service Member,” The New York Times (Nov. 14, 2017). As Dana W. White, the chief Pentagon spokeswoman, explained: “the individual who underwent the surgery had already started a sex-reassignment course of treatment and that the individual’s doctor said the surgery was medically necessary.” Id.
Motions for summary judgment should be denied where the decision to deny access to SRS or other treatment was made with knowledge of the plaintiff’s
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ongoing attempts to harm herself. See Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1117-18 (N.D. Cal. 2015) (denying summary judgment where the plaintiff alleged prison was “fully aware she faced a serious medical need for SRS and failed to address her ongoing anguish.”); Gulley-Fernandez v. Wisc. Dept. of Corr., No. 15cv-995, 2015 U.S. Dist. LEXIS 161623 (E.D. Wis. Dec. 1, 2015) (denying summary judgment where inmate was prohibited from receiving hormone therapy, real life experiences, and SRS); Konitzer v. Frank, 711 F. Supp. 874, 908 (E.D. Wis. 2010) (“[A] reasonable jury could find that the defendants were deliberately indifferent to Konitzer’s serious medical need where they failed to provide him with the second step of treatment . . . in the face of his repeated mutilations and suicide attempts. Clearly, what the defendants were doing to treat Konitzer was not working”). That should plainly be the result here as well. On this record, a reasonable factfinder certainly could find that TDCJ’s policy rewriting the WPATH standards of care to eliminate the potentially medically necessary SRS treatment for those suffering the most from GD does indeed “shock the conscience.”
Policy G 51.11 constitutes a blanket ban on SRS because it does not provide for evaluation for SRS when other treatment options do not address the patient’s ongoing symptoms. Just as the Fourth and Seventh Circuits asserted, denying further treatment options is akin to providing ineffective treatment options for
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other serious conditions, like cancer or physical ailments requiring surgery. See De’Lonta, 708 F.3d at 526; Fields, 653 F.3d at 556. Where other treatments fail to address the underlying issue and the inmate continues to suffer with symptoms of gender dysphoria, a failure to consider other treatment options constitutes deliberate indifference to the inmate’s serious medical condition.
CONCLUSION Sometimes cases are more difficult than they seem at first blush. Other times they are easier. Under proper analysis, Gibson’s case falls into the latter category. “Surely, had the . . . legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional.” Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011). The substance of Gibson’s situation is no different. TDJC Policy G 51.11 effectively provides that its transgender inmates must be treated only with part of the recognized standard of care for patients suffering from Gender Dysphoria. Under the Eighth Amendment, however, prison officials are not allowed to substitute their judgment for the medical profession on the scope of such treatment. This is not a case of a prison authority deciding only to offer one of a variety of equally effective alternative medical cares. Quite to the contrary. As the WPATH Standards of Care and the many courts (and others) who have relied upon
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those standards make clear, the consensus medical care for GD is a gradually increasing spectrum of care ending with SRS as the most severe potential medically necessary treatment for those patients for whom the prior nonsurgical treatments have proved unsuccessful. Thus, TDCJ’s policy removes from the treatment equation the final alternative treatment potential for those GD patients who are suffering the most. SRS is the last treatment standing for these patients.
As demonstrated above, GD is a serious medical condition. A deadly serious one. This is not a routine prison medical case of poison ivy. It is rather a case of poison itself. And Policy G-51.11 does not reflect a prison policy of offering calomine lotion instead of cortisone cream for such routine medical care. Rather, it reflects a policy of withholding the only potential antidote for the poison of GD in those individuals whose suffering continues unabated by lesser treatments.
If a prisoner in Texas gets bitten by a poisonous rattlesnake, could the prison refuse to consider providing that prisoner with the anti-venom that might save the prisoner’s life. Of course not. That would be precisely the type of “torture” that the Eighth Amendment prohibits. That is also precisely the type of potentially medically necessary care that is being withheld from consideration here. And as the facts of Gibson’s suffering detailed in the record amply reveal, she is just as surely going through “torture” as well.
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The Eighth Amendment demands better from prison officials, for Gibson and for all those who might follow in her footsteps. Our society’s evolving standards of decency must require this Court to reverse the decision below. Gibson respectfully prays that it do so promptly.
Respectfully Submitted, /s/ Stephen L. Braga Stephen L. Braga (Counsel of Record) Elizabeth Benshoff (Third Year Law Student) John F. Bok (Third Year Law Student) UNIVERSITY OF VIRGINIA SCHOOL OF LAW Appellate Litigation Clinic 580 Massie Road, SL-251 Charlottesville, VA 22903-1789 (434) 924-3825 stevebraga@virginia.edu Counsel for Appellant
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CERTIFICATE OF SERVICE The undersigned hereby certifies the Supplemental Brief of Appellant SCOTT LYNN GIBSON was electronically filed with the Fifth Circuit Court of Appeals on December 8, 2017. The Supplemental Brief of Appellant was served by ECF on December 8, 2017, on Counsel for Appellee. The addresses for the Appellee Counsel: John Clay Sullivan Richard Huntpalmer Office of the Attorney General Office of the Solicitor General P.O. Box 12548 Austin, TX 78711 john.sullivan@oag.texas.gov richard.huntpalmer@oag.texas.gov
/s/ Stephen L. Braga Stephen L. Braga (Counsel of Record) Counsel for Appellant
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Case: 16-51148 Document: 00514261733 Page: 47 Date Filed: 12/05/2017
CERTIFICATE OF COMPLIANCE WITH RULE 28.1 AND RULE 32(a) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements and Type Style Requirements
1. This brief complies with the Type-volume limitation of Fed. R. App. 28.1(e)(2)(A) because: The word count of this brief is 7,306 words.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
This brief has been prepared in a proportionally spaced typeface using Microsoft Word, Times New Roman, 14 point.
/s/ Stephen L. Braga Stephen L. Braga (Counsel of Record) Counsel for Appellant
37

Case: 16-51148 Document: 00514263230 Page: 1 Date Filed: 12/05/2017

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
December 06, 2017

Mr. Stephen Louis Braga I University of Virginia School of Law Appellant Litigation Clinic 580 Massie Road Suite 900 SL-251 Charlottesville, VA 22903
No. 16-51148 Scott Gibson v. Bryan Collier, et al USDC No. 6:15-CV-190

Dear Mr. Braga,
The following pertains to your brief electronically filed on 12/5/17.
We filed your brief. However, you must make the following corrections within the next 14 days.
Opposing counsel's briefing time continues to run.
You need to correct or add:
Record References: Although your brief contains citations to the record, they are not in proper form. Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed by the Clerk of Court. The use of "id" is not permitted when citing to the record on appeal. (See 5TH CIR. R. 28.2.2)
‘United States Court of Appeals’ is in a different font then the rest of the brief and does not appear to be spaced properly.
Note: Once you have prepared your sufficient brief, you must electronically file your 'Proposed Sufficient Brief' by selecting from the Briefs category the event, Proposed Sufficient Brief, via the electronic filing system. Please do not send paper copies of the brief until requested to do so by the clerk's office. The brief is not sufficient until final review by the clerk's office. If the brief is in compliance, paper copies will be requested and you will receive a notice of docket activity advising you that the sufficient brief filing has been accepted and no further

Case: 16-51148 Document: 00514263230 Page: 2 Date Filed: 12/05/2017
corrections are necessary. The certificate of service/proof of service on your proposed sufficient brief MUST be dated on the actual date that service is being made. Also, if your brief is sealed, this event automatically seals/restricts any attached documents, therefore you may still use this event to submit a sufficient brief.
Sincerely, LYLE W. CAYCE, Clerk
By: _________________________ Melissa V. Mattingly, Deputy Clerk 504-310-7719 cc: Mr. Richard Huntpalmer Mr. John Clay Sullivan

Case: 16-51148 Document: 00514270360 Page: 1 Date Filed: 12/05/2017

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
December 12, 2017

Mr. Stephen Louis Braga I University of Virginia School of Law Appellant Litigation Clinic 580 Massie Road Suite 900 SL-251 Charlottesville, VA 22903
No. 16-51148 Scott Gibson v. Bryan Collier, et al USDC No. 6:15-CV-190

Dear Mr. Braga,
We have reviewed your electronically filed Appellants Supplemental Brief and it is sufficient.
You must submit the 7 paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1.
The paper copies of your brief/record excerpts must not contain a header noting "RESTRICTED". Therefore, please be sure that you print your paper copies from this notice of docket activity and not the proposed sufficient brief/record excerpts filed event so that it will contain the proper filing header. Alternatively, you may print the sufficient brief/record excerpts directly from your original file without any header.

Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Casey A. Sullivan, Deputy Clerk (504)310-7642
cc: Mr. Richard Huntpalmer Mr. John Clay Sullivan

 
 Case: 16-51148 Document: 00515229112 Page: 1 Date Filed: 12/09/2019

Case: 16-51148 Document: 00515229114 Page: 1 Date Filed: 12/09/2019

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130
December 09, 2019

Ms. Jeannette Clack Western District of Texas, Waco United States District Court 800 Franklin Avenue Waco, TX 76701
No. 16-51148 Scott Gibson v. Bryan Collier, et al USDC No. 6:15-CV-190

Dear Ms. Clack, Enclosed is a copy of the Supreme Court order denying certiorari.

Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Stacy M. Carpenter, Deputy Clerk

 
 Gibson v. Collier, 920 F.3d 212 (2019)

920 F.3d 212 United States Court of Appeals, Fifth Circuit.
Scott Lynn GIBSON, also known as Vanessa Lynn, Plaintiff-Appellant v.
Bryan COLLIER; Dr. D. Greene, Defendants-Appellees
No. 16-51148 |
FILED March 29, 2019
Synopsis Background: Transgender state prisoner brought action for injunctive relief against Director of Texas Department of Criminal Justice (TDCJ), alleging that Department’s policy, which did not authorize sex reassignment surgery or an individualized assessment of whether such surgery was medically necessary, constituted deliberate indifference to serious medical needs and therefore violated Eighth Amendment’s prohibition of cruel and unusual punishments, facially and as applied. Director moved for summary judgment based on qualified immunity and sovereign immunity. The United States District Court for the Western District of Texas, Walter S. Smith, Jr., J., denied Director’s motion for summary judgment based on immunity but granted summary judgment to Director on the merits. Prisoner appealed.
Holdings: The Court of Appeals, James C. Ho, Circuit Judge, held that:
prisoner offered no evidence of medical community’s universal acceptance of necessity and efficacy of sex reassignment surgery as treatment for gender dysphoria or Gender Identity Disorder (GID), as would be required to establish deliberate indifference;
Department was not required to make individualized assessment of prisoner; and
Department’s policy was not “unusual,” for Eighth Amendment purposes.
1

Affirmed.
Rhesa Hawkins Barksdale, Circuit Judge, filed a dissenting opinion.
Procedural Posture(s): On Appeal; Motion for Permanent Injunction; Motion for Summary Judgment.
*215 Appeal from the United States District Court for the Western District of Texas, Walter S. Smith, Jr., U.S. District Judge
Attorneys and Law Firms
Stephen Louis Braga, I, Esq., University of Virginia School of Law, Appellant Litigation Clinic, Charlottesville, VA, for Plaintiff-Appellant.
John Clay Sullivan, Office of the Attorney General, Office of the Solicitor General, Richard Huntpalmer, Office of the Attorney General for the State of Texas, Heather Kriscenski Rhea, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendants-Appellees.
Before SMITH, BARKSDALE, and HO, Circuit Judges.
Opinion
JAMES C. HO, Circuit Judge:
A state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery to a transgender inmate. The only federal court of appeals to *216 decide such a claim to date has so held as an en banc court. See Kosilek v. Spencer, 774 F.3d 63, 76–78, 87–89, 96 (1st Cir. 2014) (en banc). The district court in this case so held. And we so hold today.
Under established precedent, it can be cruel and unusual punishment to deny essential medical care to an inmate. But that does not mean prisons must provide whatever care an inmate wants. Rather, the Eighth Amendment “proscribes only medical care so unconscionable as to fall below society’s minimum standards of decency.” Id. at 96 (citing Estelle v. Gamble, 429 U.S. 97, 102–5, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
Accordingly, “mere disagreement with one’s medical treatment is insufficient” to state a claim under the Eighth

Gibson v. Collier, 920 F.3d 212 (2019)
Amendment. Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018). This bedrock principle dooms this case. For it is indisputable that the necessity and efficacy of sex reassignment surgery is a matter of significant disagreement within the medical community. As the First Circuit has noted—and counsel here does not dispute—respected medical experts fiercely question whether sex reassignment surgery, rather than counseling and hormone therapy, is the best treatment for gender dysphoria. See Kosilek, 774 F.3d at 76–78, 87 (surveying conflicting testimony concerning medical efficacy and necessity of sex reassignment surgery).
What’s more, not only do respected medical experts disagree with sex reassignment surgery—so do prisons across the country. That undisputed fact reveals yet another fatal defect in this case. For it cannot be cruel and unusual to deny treatment that no other prison has ever provided—to the contrary, it would only be unusual if a prison decided not to deny such treatment.
The dissent correctly observes that no evaluation for sex reassignment surgery was ever provided in this case, because Texas prison policy does not authorize such treatment in the first place. The dissent suggests that a blanket ban is unconstitutional—and that an individualized assessment is required. But that defies common sense. To use an analogy: If the FDA prohibits a particular drug, surely the Eighth Amendment does not require an individualized assessment for any inmate who requests that drug. The dissent’s view also conflicts with Kosilek—as both the dissent in Kosilek and counsel here acknowledge, the majority in Kosilek effectively allowed a blanket ban on sex reassignment surgery.
In addition, the dissent would remand to correct certain alleged procedural errors made by the district court. But counsel has asked us to reach the merits, forfeiting any procedural objections that could have been brought. And the dissent’s remaining procedural concerns are redundant of the substantive debate over the proper interpretation of the Eighth Amendment. We affirm.1
I.
Scott Lynn Gibson is a transgender Texas prison inmate in the custody of the Texas Department of Criminal
2

Justice (TDCJ) in Gatesville. He was originally *217 convicted and sent to prison on two counts of aggravated robbery. In prison, he committed the additional crimes of aggravated assault, possession of a deadly weapon, and murder. He was convicted of those subsequent offenses, and is now sentenced to serve through May 2031, and eligible for parole in April 2021.
Gibson was born male. But as his brief explains, he has been diagnosed as having a medical condition known today as “gender dysphoria” or “Gender Identity Disorder” (GID). He has lived as a female since the age of 15 and calls himself Vanessa Lynn Gibson.2
The American Psychiatric Association defines “gender dysphoria” in its most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as a “marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by” at least two of six factors, namely:

1. A marked incongruence between

one’s

experienced/expressed

gender and primary and/or

secondary sex characteristics.... 2.

A strong desire to be rid of one’s

primary and/or secondary sex

characteristics because of a marked

incongruence with one’s

experienced/expressed gender.... 3.

A strong desire for the primary

and/or

secondary

sex

characteristics of the other gender.

4. A strong desire to be of the other

gender (or some alternative gender

different from one’s assigned

gender). 5. A strong desire to be

treated as the other gender (or some

alternative gender different from

one’s assigned gender). 6. A strong

conviction that one has the typical

feelings and reactions of the other

gender (or some alternative gender

different from one’s assigned

gender).

As the Manual further notes, “[t]he condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

Gibson v. Collier, 920 F.3d 212 (2019)
Gibson has averred acute distress. He is depressed, has attempted to castrate or otherwise harm himself, and has attempted suicide three times (though he says that gender dysphoria was not the sole cause of his suicide attempts). His prison medical records reflect that he has consistently denied any suicidal urges. But in this litigation, Gibson has averred that, if he does not receive sex reassignment surgery, he will castrate himself or commit suicide.
After he threatened to castrate himself, Gibson was formally diagnosed with gender dysphoria and started mental health counseling and hormone therapy. Since his formal diagnosis, Gibson has repeatedly requested sex reassignment surgery, explaining that his current treatment regimen of counseling and hormone therapy helps, but does not fully ameliorate, his dysphoria.
TDCJ Policy G-51.11 provides that transgender inmates must be “evaluated by appropriate medical and mental health professionals and [have their] treatment *218 determined on a case by case basis,” reflecting the “[c]urrent, accepted standards of care.” Although there is some dispute whether the Policy forbids sex reassignment surgery or is merely silent about it, doctors have denied Gibson’s requests because the Policy does not “designate [sex reassignment surgery] ... as part of the treatment protocol for Gender Identity Disorder.”3
II.
This appeal comes to us with an unusual procedural history. Proceeding pro se, Gibson sued, inter alia, the Director of the TDCJ (now, Bryan Collier), challenging TDCJ Policy G-51.11 as unconstitutional under the Eighth Amendment, both facially and as applied. He argued that Policy G-51.11 amounts to systematic deliberate indifference to his medical needs, because it prevents TDCJ from even considering whether sex reassignment surgery is medically necessary for him. He demanded injunctive relief requiring TDCJ to evaluate him for sex reassignment surgery.4
The Director moved for summary judgment on two grounds: qualified immunity and sovereign immunity. Notably, the Director did not move for summary judgment on the merits of Gibson’s Eighth Amendment
3

claim.

Gibson nevertheless responded to the motion for

summary judgment on the merits. He argued that the

Policy prohibits potentially necessary medical care. To

support his claim of medical necessity, he attached the

Standards of Care issued by the World Professional

Association for Transgender Health (WPATH). Those

standards provide that, “for many [transgender people,]

[sex reassignment] surgery is essential and medically

necessary to alleviate their gender dysphoria.” WPATH,

STANDARDS OF CARE FOR THE HEALTH OF

TRANSSEXUAL,

TRANSGENDER,

AND

GENDER-NONCONFORMING PEOPLE 54 (7th ed.,

2011) (STANDARDS OF CARE).

The district court rejected the Director’s two immunity defenses—denying qualified immunity because this is a suit for injunctive relief, not damages, and denying sovereign immunity under Ex parte Young. But the district court granted summary judgment for the Director on the merits of Gibson’s Eighth Amendment claim.

Gibson appealed pro se. This court appointed experienced counsel to advocate on Gibson’s behalf. With the assistance of able counsel, Gibson declined to protest any procedural defect in these proceedings. Instead, Gibson asks us to reverse solely on the basis of the merits of his Eighth Amendment claim, and to remand for further proceedings accordingly.

We accept Gibson’s invitation to reach his deliberate indifference claim on the merits, rather than reverse based on any procedural defects in the district court proceedings. In doing so, we note that, had Gibson presented any such procedural concerns, we might very well have remanded this case for further proceedings. But he did not do so—as the dissent admits. See Diss. Op. at 230 (admitting that “Gibson did not assert not being able to present essential facts”); id. at 231 (admitting that “Gibson on appeal does not contest the violation of this Rule”). And we presume *219 he had good reason not to do so. Reasonable counsel might conclude that it would be a waste of time and resources for everyone involved (and give false hope to Gibson) to remand for procedural reasons. After all, Gibson is destined to lose on remand if he is unable to identify any genuine dispute of material fact. That is the case here, as we shall demonstrate.

Gibson v. Collier, 920 F.3d 212 (2019)
III.
We review grants of summary judgment de novo, and ask whether “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “ ‘[T]he substantive law will identify which facts are material.’ This means ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ ” Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (second alteration in original) (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).5
The Eighth Amendment forbids cruel and unusual punishments. The Supreme Court has construed this prohibition to include “deliberate indifference to serious medical needs of prisoners.” Gamble, 429 U.S. at 104, 97 S.Ct. 285.
To establish deliberate indifference, Gibson must first demonstrate a serious medical need. Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006) (citing Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). Second, he must show that the Department acted with deliberate indifference to that medical need. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001) (citing Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999)).
Here, the State of Texas does not appear to contest that Gibson has a serious medical need, in light of his record of psychological distress, suicidal ideation, and threats of self-harm. Instead, the State disputes that it acted with deliberate indifference to his medical needs.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Gamble, 429 U.S. at 104, 97 S.Ct. 285 (citation omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality op.)). This is a demanding standard.
Negligence or inadvertence is not enough. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under *220 the Eighth Amendment.” Id. at 106, 97 S.Ct. 285. “[A]n inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’
4

or to be ‘repugnant to the conscience of mankind.’ ” Id. at 105–6, 97 S.Ct. 285.
Rather, the inmate must show that officials acted with malicious intent—that is, with knowledge that they were withholding medically necessary care. The plaintiff must show that officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
There is no intentional or wanton deprivation of care if a genuine debate exists within the medical community about the necessity or efficacy of that care. “Disagreement with medical treatment does not state a claim for Eighth Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (collecting cases). There is no Eighth Amendment claim just because an inmate believes that “medical personnel should have attempted different diagnostic measures or alternative methods of treatment.” Id. See also Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992) (prisoners are not entitled to “the best [treatment] that money c[an] buy”).
Gibson seems to accept this standard. As his brief notes, to state an Eighth Amendment claim, he must demonstrate “universal acceptance by the medical community” that sex reassignment surgery treats gender dysphoria.
This is not to say, of course, that a single dissenting expert automatically defeats medical consensus about whether a particular treatment is necessary in the abstract. “Universal acceptance” does not necessarily require unanimity. But where, as here, there is robust and substantial good faith disagreement dividing respected members of the expert medical community, there can be no claim under the Eighth Amendment. See, e.g., Kosilek, 774 F.3d at 96 (“Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments.”) (quoting Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993)).
Accordingly, there is no genuine dispute of material fact as to deliberate indifference under the Eighth Amendment where—as here—the claim concerns treatment over which there exists on-going controversy within the medical community. Indeed, Gibson himself admits as much.

Gibson v. Collier, 920 F.3d 212 (2019)
IV.
The district court concluded that Gibson failed to present a genuine dispute of material fact concerning deliberate indifference. To quote: “Plaintiff would prefer a policy that provides [sex reassignment surgery]. However, a Plaintiff’s disagreement with the diagnostic decisions of medical professionals does not provide the basis for a civil rights lawsuit.” Op. at 20. “Plaintiff provides ... no witness testimony or evidence from professionals in the field demonstrating that the WPATH-suggested treatment option of [sex reassignment surgery] is so universally accepted, that to provide some but not all of the WPATH-recommended treatment amounts to deliberate indifference.” Id. at 19. “Accordingly, Plaintiff fails to establish there is a genuine issue of material fact as to whether the policy is unconstitutional on its face or as applied to Plaintiff.” Id. at 20.
We agree. What’s more, the conclusion of the district court is further bolstered by *221 a recent ruling by one of our sister circuits. As the First Circuit concluded in Kosilek, there is no consensus in the medical community about the necessity and efficacy of sex reassignment surgery as a treatment for gender dysphoria. At oral argument, Gibson’s counsel did not dispute that the medical controversy identified in Kosilek continues to this day. This on-going medical debate dooms Gibson’s claim.
A.
The sparse record before us includes only the WPATH Standards of Care, which declares sex reassignment surgery both effective and necessary to treat some cases of gender dysphoria. As the First Circuit has concluded, however, the WPATH Standards of Care reflect not consensus, but merely one side in a sharply contested medical debate over sex reassignment surgery.
The en banc First Circuit considered whether a prison acted with deliberate indifference when it failed to offer sex reassignment surgery to a Massachusetts inmate. Kosilek, 774 F.3d at 68–96. Although the prison denied
5

the surgery, it offered “hormones, electrolysis, feminine clothing and accessories, and mental health services.” Id. at 89.
As part of its deliberate-indifference analysis, the First Circuit considered whether WPATH and its proponents reflect medical consensus. It concluded that, notwithstanding WPATH, sex reassignment surgery is medically controversial. Accordingly, Massachusetts prison officials were not deliberately indifferent when they “chose[ ] one of two alternatives—both of which are reasonably commensurate with the medical standards of prudent professionals, and both of which provide [the plaintiff] with a significant measure of relief.” Id. at 90. The court held that this choice between treatments “is a decision that does not violate the Eighth Amendment.” Id.
To support its decision, the First Circuit exhaustively detailed the underlying expert testimony in the case. That testimony is crucial because it provides objective evidence that the medical community is deeply divided about the necessity and efficacy of sex reassignment surgery. As the First Circuit explained, respected doctors profoundly disagree about whether sex reassignment surgery is medically necessary to treat gender dysphoria.
To begin with, Kosilek recounted the testimony of Dr. Chester Schmidt, “a licensed psychiatrist and Associate Director of the Johns Hopkins School of Medicine.” Id. at 76. He testified that “ ‘[t]here are many people in the country who disagree with [WPATH] standards who are involved in the [gender dysphoria] field.’ ” Id. (first alteration in original). As a result, “Dr. Schmidt expressed hesitation to refer to the [WPATH] Standards of Care, or the recommendation for [sex reassignment surgery], as medically necessary. He emphasized the existence of alternative methods and treatment plans accepted within the medical community.” Id. at 76–77.
Next, the court summarized Cynthia Osborne’s testimony. Id. at 77. She is “a gender identity specialist employed at the Johns Hopkins School of Medicine who had experience working with other departments of correction regarding [gender dysphoria] treatment.” Id. at 70. She testified that “she did not view [sex reassignment surgery] as medically necessary in light of ‘the whole continuum from noninvasive to invasive’ treatment options available to individuals with [gender dysphoria].” *222 Id. at 77.6
Third, the First Circuit considered the opinions of an expert appointed by the district court, “Dr. Stephen Levine, a practitioner at the Center for Marital and Sexual

Gibson v. Collier, 920 F.3d 212 (2019)
Health in Ohio and a clinical professor of psychiatry at Case Western Reserve University School of Medicine.” Id.
As the First Circuit pointed out, “Dr. Levine had helped to author the fifth version of the [WPATH] Standards of Care.” Id. So it was notable that Dr. Levine expressed concerns that later versions of WPATH were driven by political considerations rather than medical judgment. His written report “explain[ed] the dual roles that WPATH ... plays in its provision of care to individuals with GID.” Id. As the report stated:
WPATH is supportive to those who want sex reassignment surgery (SRS).... Skepticism and strong alternate views are not well tolerated.... The [Standards of Care are] the product of an enormous effort to be balanced, but it is not a politically neutral document. WPATH aspires to be both a scientific organization and an advocacy group for the transgendered. These aspirations sometimes conflict.
Id. at 78 (first alteration in original) (emphasis added).
Dr. Levine also expressed concerns that the support for sex reassignment surgery expressed in the Standards of Care lacked medical support. “The limitations of the [Standards of Care], however, are not primarily political. They are caused by the lack of rigorous research in the field.” Id. “Dr. Levine further emphasized that ‘large gaps’ exist in the medical community’s knowledge regarding the long-term effects of [sex reassignment surgery] and other [gender dysphoria] treatments in relation to its positive or negative correlation to suicidal ideation.” Id. Dr. Levine ultimately agreed with Dr. Schmidt’s testimony:
Dr. Schmidt’s view, however unpopular and uncompassionate in the eyes of some experts in [gender dysphoria], is within prudent professional community standards.
6

Treatment stopping short of [sex reassignment surgery] would be considered adequate by many psychiatrists.
Id. And when asked to confirm if “prudent professionals can reasonably differ as to what is at least minimally adequate treatment” for gender dysphoria, Dr. Levine agreed: “Yes, and do.” Id. at 87.
Finally, the court noted that “Dr. Marshall Forstein, Associate Professor of Psychiatry at Harvard Medical School ... issued a written report, in which he noted that ‘the question of the most prudent form of treatment is complicated by the diagnosis of [gender dysphoria] being on the margins of typical medical practice.’ ” Id. at 79.
To be sure, not all of the testimony was negative toward sex reassignment surgery. See id. at 74–76, 77, 79. And not all of it was about sex reassignment surgery generally, as distinguished from the plaintiff’s individual need for such surgery. But the *223 unmistakable conclusion that emerges from the testimony is this: There is no medical consensus that sex reassignment surgery is a necessary or even effective treatment for gender dysphoria.7
We see no reason to depart from the First Circuit. To the contrary, we agree with the First Circuit that the WPATH Standards of Care do not reflect medical consensus, and that in fact there is no medical consensus at this time. WPATH itself acknowledges that “this field of medicine is evolving.” STANDARDS OF CARE 41. The record in Kosilek documents more than enough dissension within the medical community to conclude that it is not deliberately indifferent for Texas prison officials to decline to authorize sex reassignment surgery.
Indeed, even one of the dissenters in Kosilek felt compelled to acknowledge the “carefully nuanced and persuasive testimony that medical science has not reached a wide, scientifically driven consensus mandating [sex reassignment surgery] as the only acceptable treatment for an incarcerated individual with gender dysphoria.” 774 F.3d at 114 (Kayatta, J., dissenting). That admission is fatal to this case as well.8

Gibson v. Collier, 920 F.3d 212 (2019)
B.
Gibson relies exclusively on the WPATH Standards of Care to support his claim that failure to evaluate for sex reassignment surgery constitutes deliberate indifference to his serious medical needs. Yet he too acknowledges that WPATH’s conclusions are hotly contested.
When asked about Kosilek at oral argument, Gibson’s counsel did not dispute that the Standards of Care are a matter of contention within the medical community. In fact, counsel conceded as much, acknowledging that the First Circuit in Kosilek “criticizes” WPATH and “doesn’t recognize [WPATH] as having universal consensus.” Oral Arg. 10:50–11:33.
Gibson nevertheless asks this court to remand so that he can present evidence of *224 his individual need for sex reassignment surgery. Oral Arg. 11:35–12:10; 13:27–16:22. We do not see how evidence of individual need would change the result in this case, however. Any evidence of Gibson’s personal medical need would not alter the fact that sex reassignment surgery is fiercely debated within the medical community. Because Gibson does not dispute the expert testimony assembled by the First Circuit concerning the medical debate surrounding sex reassignment surgery, he cannot establish on remand that such surgery is universally accepted as an effective or necessary treatment for gender dysphoria. Nor can he contend that TDCJ has been deliberately indifferent to his serious medical needs—particularly where TDCJ continues to treat his gender dysphoria through other means. See Brauner v. Coody, 793 F.3d 493, 500 (5th Cir. 2015) (“Deliberate indifference is not established when ‘medical records indicate that [the plaintiff] was afforded extensive medical care by prison officials.’ ”) (alteration in original) (quoting Norton, 122 F.3d at 292).
In sum, Gibson has failed to present a genuine dispute of material fact. There is no material fact dispute as to whether TDCJ was deliberately indifferent to his medical needs. It is undisputed that TDCJ has provided him with counseling and hormone therapy. And he acknowledges the on-going good faith medical debate over the necessity and efficacy of sex reassignment surgery.
C.
7

The dissent contends that we are not permitted to look at the record in Kosilek. Although it might have been better practice for TDCJ to present its own evidence, rather than borrow from Kosilek, we disagree that this warrants reversal.
No legal authority compels the state, every time a prison inmate demands sex reassignment surgery, to undertake the time and expense of assembling a record of medical experts, pointing out what we already know—that sex reassignment surgery remains one of the most hotly debated topics within the medical community today. There is no reason why—as a matter of either common sense or constitutional law—one state cannot rely on the universally shared experiences and policy determinations of other states.9
D.
The dissent also suggests that Kosilek allows a prison to deny sex reassignment surgery only if the prison first makes an individualized assessment of the inmate’s particular medical needs. Under this view, it would be unconstitutional for a prison system to make a categorical policy judgment not to wade into the controversial world of sex reassignment surgery—as TDCJ did here.
*225 There are a number of problems with this theory. To begin with, Gibson’s own brief acknowledges that, if the logic of Kosilek is correct, it would allow a “blanket refusal to provide SRS.” Counsel made the same acknowledgment during oral argument. The court stated: “But your brief acknowledges that the reasoning of the First Circuit is essentially allowing a blanket ban.” Counsel responded: “And in fact, we do that by adopting the dissent—you’re correct, your Honor—by adopting the dissent’s position,” referring to the dissent in Kosilek. Oral Arg. 10:02–10:20.
Our dissenting colleague suggests that counsel subsequently retracted this admission. But counsel’s original admission—made first in writing, and then again at the podium—is consistent with the dissent in Kosilek, which likewise construed the logic of the en banc majority to permit a blanket ban. To quote the dissent: “[T]he majority in essence creates a de facto ban on sex reassignment surgery for inmates in this circuit.... [T]he

Gibson v. Collier, 920 F.3d 212 (2019)
precedent set by this court today will preclude inmates from ever being able to mount a successful Eighth Amendment claim for sex reassignment surgery in the courts.” Kosilek, 774 F.3d at 106–7 (Thompson, J., dissenting).
Moreover, putting Kosilek to one side, there is a more fundamental problem with the dissent’s contention that the Eighth Amendment requires individualized assessments, and thus forbids categorical judgments about the necessity and efficacy of certain medical treatments. To illustrate: An entire agency of the federal government—the Food and Drug Administration—is devoted to making categorical judgments about what medical treatments may and may not be made available to the American people. So imagine an inmate seeks a form of medical treatment that happens to be favored by some doctors, but has not (at least not yet) been approved by the FDA. Could the inmate challenge this deprivation on the ground that it is a categorical prohibition on medical treatment, rather than an individualized assessment? Surely not. There is no basis in the text or original understanding of the Constitution—nor in Supreme Court or Fifth Circuit precedent—to conclude that a medical treatment may be categorically prohibited by the FDA, yet require individualized assessment under the Eighth Amendment. The dissent seems to acknowledge this, stating only that “[o]ther circuits have time and again held that ... a blanket policy ... could constitute deliberate indifference.” Diss. Op. at 239 (emphases added) (discussing examples from Fourth and Ninth Circuits).

Edmo did. It took sides in an on-going medical debate—much like the district court did in Kosilek. And just as the district court in Kosilek was subsequently reversed by the First Circuit en banc, so too the judgment of the district court in Edmo should not survive appeal.
After all, Edmo rejected the views of multiple medical experts who disputed the *226 efficacy of sex reassignment surgery for inmates—including Dr. Campbell, the Idaho Department of Correction’s chief psychologist (and a WPATH member). 2018 WL 6571203, at *6–7. The dissent points out that the record in Edmo includes expert medical testimony disagreeing with two of the doctors that the First Circuit credited in Kosilek. But that is not news—Kosilek itself included the testimony of other medical experts—some who agreed, and some who disagreed, with those doctors.
At bottom, our disagreement with the dissent concerns not the record evidence in Kosilek or Edmo or any other case, but the governing constitutional standard. We can all agree that sex reassignment surgery remains an issue of deep division among medical experts. Indeed, that is precisely our point. We see no basis in Eighth Amendment precedent—and certainly none in the text or original understanding of the Constitution—that would allow us to hold a state official deliberately (and unconstitutionally) indifferent, for doing nothing more than refusing to provide medical treatment whose necessity and efficacy is hotly disputed within the medical community.

E.
Finally, the dissent does not dispute that no circuit has disagreed with Kosilek. So the dissent relies primarily on a recent ruling by a federal district court ordering the state of Idaho to provide sex reassignment surgery to an inmate. See Edmo v. Idaho Dep’t of Corr., 2018 WL 6571203, *19 (D. Idaho Dec. 13, 2018) (appeal pending).
But Edmo did not even mention Kosilek. To the contrary, it held that the Eighth Amendment requires “even controversial” procedures. Id. at *1. Our circuit precedent, by contrast, rejects Eighth Amendment claims in cases involving medical disagreement. See, e.g., Norton, 122 F.3d at 292. Yet that is precisely what the district court in
8

V.
As a matter of established precedent, Gibson’s claim plainly fails, due to the undisputed medical controversy over sex reassignment surgery. But there is an even more fundamental flaw with his claim, as a matter of constitutional text and original understanding.
Lest we lose the forest for the trees, a prison violates the Eighth Amendment only if it inflicts punishment that is both “cruel and unusual.” U.S. CONST. amend. VIII (emphasis added). As the text makes clear, these are separate elements. See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 116 (2012)

Gibson v. Collier, 920 F.3d 212 (2019)

(“[I]n the well-known constitutional phrase cruel and unusual punishments, the and signals that cruelty or unusualness alone does not run afoul of the clause: The punishment must meet both standards to fall within the constitutional prohibition.”); Akhil Reed Amar, America’s Lived Constitution, 120 YALE L.J. 1734, 1778 (2011) (“[W]hether hypothetical punishment X is ‘cruel’ as well as unusual is of course a separate question.”).

Under the plain meaning of the term, a prison policy cannot be “unusual” if it is widely practiced in prisons across the country. One of the nation’s leading originalist scholars put the point simply: “ ‘[U]nusual’ should mean what it says.... [S]o long as Congress routinely authorized a particular punishment, it would be hard to say that the punishment, even if concededly cruel, was ‘cruel and unusual.’ ” Amar, 120 YALE L.J. at 1778–79.10

This understanding of the term “unusual”—that widely accepted practices, such as the denial of sex reassignment surgery, *227 do not violate the Eighth Amendment—is not just commanded by constitutional text. It is also consistent with opinions issued by various members of the Supreme Court. This is particularly notable considering that few constitutional provisions have divided members of the Court more vigorously than the Eighth Amendment.

In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,

115 L.Ed.2d 836 (1991), for example, Justice Scalia wrote

that, “by forbidding ‘cruel and unusual punishments,’ the

Clause disables the Legislature from authorizing ... cruel

methods of punishment that are not regularly or

customarily employed.” Id. at 976, 111 S.Ct. 2680 (op. of

Scalia, J.) (second emphasis added) (citations omitted).

“[T]he word ‘unusual’ ” means “ ‘such as [does not]

occu[r] in ordinary practice,’ ‘[s]uch as is [not] in

common use.’ ” Id. (alterations in original) (quoting

WEBSTER’S AMERICAN DICTIONARY (1828);

WEBSTER’S

SECOND

INTERNATIONAL

DICTIONARY 2807 (1954)).

Similarly, in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), Justice Scalia explained that “[t]he punishment is either ‘cruel and unusual’ (i. e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court but the citizenry of the United States. It is they, not we, who must be persuaded. For as we stated earlier, our job is to identify the ‘evolving standards of decency’; to determine, not what they should be, but what they are.” Id. at 378, 109 S.Ct. 2969 (op. of Scalia, J.).
9

The specific holding of Stanford—that it is not cruel and unusual punishment to impose capital punishment on 16 and 17-year-olds—was later abrogated by Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). But Simmons did not abrogate Justice Scalia’s interpretation of “unusual.” To the contrary, the majority in Simmons relied heavily on “[t]he evidence of national consensus against the death penalty for juveniles” to support its holding. Id. at 564, 125 S.Ct. 1183. “30 States prohibit the juvenile death penalty.” Id. And “even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent. Since Stanford, six States have executed prisoners for crimes committed as juveniles. In the past 10 years, only three have done so: Oklahoma, Texas, and Virginia.” Id. at 564–65, 125 S.Ct. 1183. See also id. at 565, 125 S.Ct. 1183 (“In December 2003 the Governor of Kentucky decided to spare the life of Kevin Stanford, and commuted his sentence to one of life imprisonment without parole, with the declaration that ‘[w]e ought not be executing people who, legally, were children.’ By this act the Governor ensured Kentucky would not add itself to the list of States that have executed juveniles within the last 10 years even by the execution of the very defendant whose death sentence the Court had upheld in Stanford v. Kentucky.”) (alteration in original) (citation omitted).
Similarly, Justice Breyer has observed that “[t]he Eighth Amendment forbids punishments that are cruel and unusual. Last year, in 2014, only seven States carried out an execution. Perhaps more importantly, in the last two decades, the imposition and implementation of the death penalty have increasingly become unusual.” Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2772, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting).
Gibson’s claim fails this fundamental principle. As his counsel has acknowledged, only one state to date, California, has ever provided sex reassignment surgery to a prison inmate. Oral Arg. 28:20–53. It did so in January 2017, pursuant to the settlement of a federal lawsuit. Before that litigation, no prison in the United *228 States had ever provided sex reassignment surgery to an inmate.11
Accordingly, Gibson cannot state a claim for cruel and unusual punishment under the plain text and original meaning of the Eighth Amendment, regardless of any facts he might have presented in the event of remand.
* * *

Gibson v. Collier, 920 F.3d 212 (2019)
Gibson acknowledges that sex reassignment surgery for prison inmates was unheard of when proceedings in this case began—and that it was only done for the first time, anywhere, a year later in California, in response to litigation. Gibson nevertheless contends that what was unprecedented until just recently—and done only once in our nation’s history—suddenly rises to a constitutional mandate today. That is not what the Constitution requires. It cannot be deliberately indifferent to deny in Texas what is controversial in every other state. The judgment is affirmed.
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
The Director of the Texas Department of Criminal Justice (TDCJ) was awarded summary judgment on a basis not urged by him; and, to make matters far worse, in awarding judgment on the merits sua sponte, the district court did not provide Gibson the required notice that it would consider such a basis and allow Gibson to respond. Accordingly, as the majority notes correctly, this appeal springs from this very unusual and improper procedure and resulting sparse summary-judgment record, which is insufficient for summary-judgment purposes. Therefore, this case should be remanded for further proceedings. Accordingly, I must respectfully dissent from the majority’s reaching the merits of this action, which concerns the Eighth Amendment’s well-established requirements for medical treatment to be provided prisoners.

on the basis of qualified and Eleventh Amendment immunity. The district court denied immunity, but then, sua sponte, improperly granted summary judgment on the merits, without providing notice to Gibson—as required by Federal Rule of Civil Procedure 56(f)—that it was considering a basis for granting summary judgment not advanced by the Director in his motion and, concomitantly, giving Gibson the opportunity to respond.
*229 II.
Procedurally, summary judgment was improperly granted for several reasons, in violation of bedrock bases for ensuring fundamental due process to the nonmovant in a summary-judgment proceeding. Substantively, numerous reasons compel summary judgment’s not being granted, most especially the requested medical relief’s not being considered based on Gibson’s individual needs.
A.
Gibson proceeded pro se in district court. The procedure employed by the district court in granting summary judgment against Gibson flies in the face of fundamental fairness, which Rule 56 (summary judgment), and caselaw concerning it, seek to ensure. Regrettably, the majority compounds the error.

I.
Gibson’s pro se complaint claimed: sex-reassignment surgery (SRS) is a medically-necessary treatment for gender dysphoria; and the Director, in violation of the Eighth Amendment, was deliberately indifferent to Gibson’s serious medical need (gender dysphoria) by refusing to allow Gibson to even be evaluated for SRS, due to a blanket ban on SRS instituted by TDCJ Policy No. G-51.11. The Director moved for summary judgment
10

1.
The Director moved for summary judgment based only on immunity: qualified and Eleventh Amendment. When relief is sought against an official in his individual capacity, in our considering entitlement vel non to qualified immunity, the well-known, two-prong analysis is employed: first, “whether the facts alleged, taken in the

Gibson v. Collier, 920 F.3d 212 (2019)
light most favorable to the party asserting the injury, show that the [official’s] conduct violated a constitutional right”, Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001) ); and, second, if the allegations show a constitutional violation, “whether the right was clearly established—that is whether ‘it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted’ ”, id. (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151). The district court did not address these two prongs, instead denying qualified immunity because Gibson was only seeking injunctive relief against the Director in his official capacity.
But, in urging qualified immunity, the Director’s brief—which was incorporated in his summary-judgment motion—addressed, inter alia, the Eighth Amendment claim by discussing the first prong of the qualified-immunity analysis. The Director asserted Gibson “failed to state an actionable claim for medical deliberate indifference”. In support of this contention, the Director claimed, inter alia, “[Gibson’s] disagreement with the course of treatment pursued by prison medical staff does not constitute a viable claim for deliberate indifference to serious medical needs under the Eight[h] Amendment”.
Proceeding pro se, Gibson’s response to the Director’s immunity claims, inter alia, necessarily addressed Gibson’s Eighth Amendment deliberate-indifference claim in the context of the first prong of the qualified immunity urged by the Director. Gibson contended SRS is not demanded, or even requested; rather, Gibson requested an evaluation by a gender-dysphoria specialist so that Gibson’s condition could be fully assessed, and a determination made by a medical professional, based on Gibson’s individualized needs, whether SRS would adequately treat Gibson’s gender dysphoria. Gibson averred there was a genuine dispute of material fact as to: whether Gibson had a serious medical condition; whether Gibson was entitled to medical care that meets prudent professional standards, as opposed to being denied medical care based on a blanket policy; and whether the Director was deliberately indifferent to Gibson’s serious medical need.
The discussion for qualified-immunity purposes in the summary-judgment motion *230 and Gibson’s pro se response may be why the district court improperly went beyond the summary-judgment motion, based only on
11

immunity, and addressed the merits of the Eighth Amendment claim. But, at this very early stage of the proceeding, no discovery had been taken, and material facts were unavailable to Gibson. Gibson’s affidavit in opposition to summary judgment stated TDCJ was enforcing a blanket ban and refusing to allow doctors to fully evaluate medical needs. As a result, Gibson was unable to prove SRS is medically necessary in this case, because TDCJ prevented Gibson from even being evaluated for SRS.
Along that line, Rule 56(d) provides: “If a nonmovant [for a summary-judgment motion] shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to summary judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order”. Fed. R. Civ. P. 56(d). While Gibson did not assert not being able to present essential facts, including because of not being aware the court was considering a basis for judgment not advanced by the Director, this Rule reflects the necessity of allowing a party opposing summary judgment to garner such facts.
In addition, in Celotex Corp. v. Catrett, the Supreme Court explained that summary judgment can be entered against a party which fails to show it will be able to prove an essential element of its case “after adequate time for discovery”. 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Gibson was not allowed discovery. Gibson filed requests for admissions, which the Director never answered, instead filing a motion for a protective order based on his qualified-immunity defense.
The court never ruled on the Director’s protective order, but ruled, in granting summary judgment, that, although the Director did not have immunity, Gibson had not shown a genuine dispute of material fact. For instance, the court found, inter alia, “the record contain[ed] no evidence addressing the security issues associated with adopting in full the WPATH standards in an institutional setting”. Gibson v. Livingston, No. 6:15-cv-190, at 19 (W.D. Tex. 31 Aug. 2016). Notwithstanding the fact that the court improperly placed the burden of showing security concerns on Gibson, the record contained no evidence of security concerns because there had been no discovery. Ruling on the merits without compelling the Director to respond to Gibson’s discovery requests, after denying the Director’s qualified-immunity defense, flies in the face of clear Supreme Court precedent.

Gibson v. Collier, 920 F.3d 212 (2019)
More to the point concerning the district court’s addressing the merits sua sponte, Rule 56(f) provides, inter alia: “After giving notice and a reasonable time to respond, the court may ... grant the [summary-judgment] motion on grounds not raised by a party....” Fed. R. Civ. P. 56(f)(2) (emphasis added). Contrary to this Rule, the district court ruled on the merits without giving Gibson any notice or opportunity to respond.
Regarding sua sponte grants of summary judgment, “we have vacated summary judgments and remanded for further proceedings where the district court provided no notice prior to granting summary judgment sua sponte, even where ‘summary judgment may have been appropriate on the merits’ ”. Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994) (emphasis added) (affirming district court’s sua sponte grant of summary judgment because plaintiffs *231 could not identify how discovery would yield a genuine dispute of material fact) (citing Judwin Properties, Inc. v. U.S. Fire Ins., 973 F.2d 432, 437 (5th Cir. 1992) ). “Since a summary judgment forecloses any future litigation of a case the district court must give proper notice to [e]nsure that the nonmoving party had the opportunity to make every possible factual and legal argument.” Id. (quoting Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988) ). “When there is no notice to the nonmovant, summary judgment will be considered harmless if the nonmovant has no additional evidence or if all the nonmovant’s additional evidence is reviewed by the appellate court and none of the evidence presents a genuine [dispute] of material fact.” Id. (emphasis in original) (quoting Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403 n.7 (5th Cir. 1993) ).
Gibson was not given every opportunity to present evidence and contentions in opposing summary judgment on the basis for which it was granted. Gibson, as an inmate, must rely on TDCJ or the court to allow an evaluation to determine if SRS is necessary for Gibson. Accordingly, we have not been able to evaluate all the evidence to determine if there are no genuine disputes of material fact, as that evaluation has not been allowed. Although Gibson on appeal does not contest the violation of this Rule, which exists to ensure fundamental due process, it is one factor that should be considered in evaluating this insufficient record.
The majority at 3 states Gibson has “forfeit[ed]” any procedural objections because Gibson has now asked for a ruling on the merits. (In that regard, the majority is
12

inconsistent: it notes that Gibson has asked our court to rule on the merits, but also states at 15 that Gibson has asked our court to remand, so that evidence of Gibson’s individual need for SRS can be presented.) But, just as a party cannot decide our standard of review, a party also cannot decide an insufficient record is sufficient.
2.
The majority, as did the district court, consistently places the burden of production on Gibson. But, at hand is a summary judgment. It may be granted only when there is no genuine dispute of material fact and movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Because the Director, not Gibson, moved for summary judgment, it was the Director’s burden to “demonstrate the absence of a genuine [dispute] of material fact”. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885–86, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ). “If the [movant] fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Id. Only if the Director met his burden would the burden shift to Gibson to “go beyond the pleadings and designate specific facts showing that there is a genuine [dispute] for trial”. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548).
Again, if a genuine dispute of material fact exists, we cannot hold movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985) (“Accordingly, on appeal we view all materials in the light most favorable to [nonmovant] ... to determine if there is any [dispute] of material fact. If no such [dispute] exists, we must then determine if [movant is] entitled to judgment as a matter of law.” (emphasis added) (citation omitted)).
In moving for summary judgment only on the basis of immunity, the Director provided the following evidence in support: *232 Gibson’s grievance records; Gibson’s medical records from January 2014-August 7, 2015; and TDCJ Policy No. G-51.11. The Director submitted no evidence regarding the medical necessity vel non of SRS in treating gender dysphoria.

Gibson v. Collier, 920 F.3d 212 (2019)
In response, Gibson offered as evidence: Gibson’s affidavit, grievance records, and psychiatric records from a psychiatric facility; literature on health care and transgender individuals, including excerpts from a report detailing the WPATH Standard of Care, which state “for many ... surgery is essential and medically necessary to alleviate their gender dysphoria”; a copy of TDCJ’s policy on surgical castration for sex offenders; and copies of correspondence to Gibson from TDCJ Correctional Managed Health Care.
Therefore, because the Director did not provide evidence showing an absence of a dispute as to the medical necessity of SRS in treating gender dysphoria, he did not meet his burden; summary judgment was improper.
The majority does not address the Director’s failure to show an absence of a dispute for a material fact, which was the Director’s burden, as movant, under Rule 56(a). Instead, the majority, throughout its opinion, claims Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc), shows there is no genuine dispute of material fact in regard to the medical controversy surrounding SRS; but, in district court, the Director did not even cite Kosilek, much less contend the evidence presented in Kosilek was dispositive. Again, the majority can only state that Gibson “has failed to present a genuine dispute of material fact”, Maj. Opn. at 224, without citation to any facts presented to the district court by the Director, without any citation for why it was Gibson’s burden at this stage, and without citation for whether there is any proof regarding whether this medical controversy—which it submits at 216–17 “dooms” Gibson’s claim—still exists, over four years after Kosilek was decided. Nevertheless, the majority at 219–20 note 5 states there is no merit to my contention that it is misplacing the burden of production on Gibson.
Again, though, the majority is improperly taking evidence from another case (Kosilek, decided by the first circuit over four years ago, and tried well before then)—facts not presented in this case to the district court—and is refusing to evaluate those facts in the requisite light most favorable to Gibson, the nonmovant. See Johnson, 759 F.2d at 1237 (“The burden is on the moving party to establish that there is no genuine issue of fact and the party opposing the motion should be given the benefit of every reasonable inference in his favor.” (citation omitted)).
Instead, the majority contends at 219–20 note 5 that it is “recogniz[ing] the futility of Gibson’s claim”; however, a review of relevant caselaw yielded no precedent providing for the denial of remand based on futility when
13

there is a genuine dispute of material fact at the summary-judgment stage. The majority is, in essence, skipping straight to the “judgment as a matter of law” prong for summary judgment. That is improper, because, as noted supra, this court must first determine there is no genuine dispute of material fact. Obviously, as explained more fully infra, under the Eighth Amendment deliberate-indifference standard, individualized medical assessment is required in each case to determine the necessity of a particular treatment for a prisoner. Because Gibson has not received the requested and physician-ordered evaluation for SRS, there is a genuine dispute of material fact—whether SRS is medically necessary in Gibson’s case.
The majority instead, in essence, is treating this Rule 56 summary-judgment *233 motion as a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6). See Maj. Opn. at 216–17, 219–20, 220–21, & 228–29 (“Accordingly, Gibson cannot state a claim for cruel and unusual punishment under the plain text and original meaning of the Eighth Amendment, regardless of any facts he might have presented in the event of remand.” (first emphasis added)). Here, we are not determining whether Gibson failed to state a claim (Gibson did state a claim for deliberate indifference), but are instead determining whether, inter alia, there are genuine disputes of material fact. Again, I emphasize, the only facts presented to the district court regarding the medical necessity of SRS were the WPATH Standards of Care. As much as it claims not to have, in its zeal to interpret the original text of the Eighth Amendment (which, as explained infra has already been done by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)), the majority has “missed the trees for the forest” by disregarding what stage of the proceeding we are evaluating and the concomitant standards for it.
B.
The procedural errors that compel vacating the summary judgment almost pale in comparison to the majority’s going far outside the totally lacking summary-judgment record at hand in holding judgment was properly granted. This is reflected in the majority’s refusing to consider Gibson’s individual medical needs, which are in large part

Gibson v. Collier, 920 F.3d 212 (2019)
unknown because Gibson has never received the requested evaluation for SRS, despite the evaluation’s being ordered by a TDCJ doctor.
1.
Instead of looking to the summary-judgment record for evidence of the claimed uncertainty in the medical community, the majority at 10–14 attempts to create its own record, as noted, from the opinion in Kosilek (en banc) (which, again, was not cited by the Director in the brief incorporated in his summary-judgment motion), and from other outside sources, Maj. Opn. at 221–22 & 222–23 nn.6–7. While we can, of course, look to other cases for legal analysis, we cannot reconstruct the summary-judgment record in this case from the record in another.
Moreover, this case is a far cry from Kosilek, which spanned over 20 years, had a very “expansive” record, and was not decided by summary judgment. Kosilek, 774 F.3d at 68. Throughout Kosilek’s trial, testimony was provided by numerous medical professionals—including gender-dysphoria specialists who had evaluated Kosilek—regarding the medical necessity of SRS in that case, and from multiple prison officials regarding safety concerns if Kosilek were allowed SRS, neither of which is in issue for the summary judgment at hand.
Additionally, Kosilek, as noted, was decided more than four years ago, which is not as “recent” as the majority claims at 220–21. In the last four years, have there been any developments in the medical community regarding treating gender dysphoria and determining the necessity for SRS? We do not know because, in the instant summary-judgment record, we have no expert testimony or any evidence as to the medical necessity outside of the WPATH Standards of Care. (Somewhat along the line of relevant medical-community developments, the majority at 216 note 2, in discussing why it uses male pronouns for Gibson, cites Frontiero v. Richardson for the proposition that “sex ... is an immutable characteristic determined solely by ... birth”. 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) *234 (Brennan, J.) (plurality opinion). Frontiero, an equal-protection challenge, confronted the disparate treatment of women; its being cited by the majority is puzzling, to say the least. In any
14

event, 46 years have passed since 1973, when Frontiero was decided.)
A recent example of the disagreement over the requirement under the Eighth Amendment to provide SRS in certain instances is the 13 December 2018 opinion in Edmo v. Idaho Department of Corrections. No. 1:17-cv-00151-BLW, 2018 WL 6571203 (D. Idaho 13 Dec. 2018), concerning the court’s granting Edmo’s motion for preliminary injunction and ordering the Idaho Department of Corrections (IDOC) to provide Edmo with SRS. There, the district court held Edmo had “satisfie[d] both elements of the deliberate-indifference” standard: Edmo proved there was a serious medical need; and IDOC and its medical provider, with full awareness of Edmo’s circumstances, had refused to provide Edmo with SRS. Id. at *2. The district court went on to state: “In refusing to provide that surgery, IDOC and [its medical provider] have ignored generally accepted medical standards for the treatment of gender dysphoria”. Id. The court also noted, as did the court in Kosilek, that its opinion was based on “the unique facts and circumstances” of Edmo’s case, and “is not intended, and should not be construed, as a general finding that all inmates suffering from gender dysphoria are entitled to” SRS. Id.
In so holding, the court found the “WPATH Standards of Care are the accepted standards of care for treatment of transgender patients”, and “have been endorsed by the [National Commission on Correctional Health Care (NCCHC) ] as applying to incarcerated persons”. Id. at *15. The court found credible Edmo’s two experts, doctors “who have extensive personal experience treating individuals with gender dysphoria both before and after receiving [SRS]”. Id. at *15. One doctor testified “that [SRS] is the cure for gender dysphoria” and would “eliminate” Edmo’s gender dysphoria, id. at *12; the other, that “it is highly unlikely that [Edmo’s] severe gender dysphoria will improve without” SRS, id.
The court also gave “virtually no weight” to IDOC’s experts, who had no “experience with patients receiving [SRS] or assessing patients for the medical necessity of [SRS]”. Id. at *15. IDOC and its medical provider were trained by a doctor, id., whose testimony in Kosilek is relied on heavily by the majority at 221–22. The court found that doctor and another, who also testified in Kosilek and is quoted by the majority at 221, were “outliers in the field of gender dysphoria treatment”; “do not ascribe to the WPATH Standards of Care”; and impose additional requirements on incarcerated

Gibson v. Collier, 920 F.3d 212 (2019)
individuals to receive SRS that have no scientific support, have not been endorsed by any professional organizations, and have not been adopted by the NCCHC. Id. at *16; see also Norsworthy v. Beard, 87 F.Supp.3d 1164, 1188 (N.D. Cal. 2015) (finding the above-referenced doctor who trained IDOC and its medical provider was not credible because he testified as to “illogical inferences”, misrepresented the WPATH Standards of Care, “overwhelmingly relie[d] on generalizations about gender dysphoric prisoners, rather than an individualized assessment”, and “admittedly include[d] references to a fabricated anecdote”).
The record in Edmo contains more than, as the majority suggests at 225–26, a disagreement with the doctors in Kosilek. The courts in Edmo and Norsworthy found those doctors not credible in the light of their misrepresentations and refusal to subscribe to the medically-accepted *235 standards of care—WPATH. See, e.g., Edmo, 2018 WL 6571203, at *16; Norsworthy, 87 F.Supp.3d at 1188.
2.
The majority at 220–21 and 223–24 also errs in stating Gibson’s “concessions”. Gibson’s statement that the first circuit (which decided Kosilek en banc) “doesn’t recognize [WPATH] as having universal consensus” is not equivalent to a concession that WPATH is not universally accepted. And, contrary to the majority’s statement at 223–24, Gibson does contest the expert testimony in Kosilek refuting such “universal acceptance”. Although Gibson acknowledges that, while proceeding pro se in district court, Gibson did not present evidence of WPATH’s universal acceptance, Gibson asserts such acceptance could be inferred as “[i]t is undisputed ... that all reputable U.S. medical organizations have recognized WPATH as the proper standard of care”.
In that regard, the majority rests on lack of “universal acceptance” of the medical necessity of SRS, stating that, to constitute deliberate indifference, the medical procedure must be “universally accepted”. E.g., Maj. Opn. at 220–21, 220–21, & 223–24. Tellingly, the majority provides no citation to any caselaw regarding this universal-acceptance standard. In fact, the only
15

citation for this point is to Gibson’s brief. Maj. Opn. at 220–21. Gibson’s brief seemingly quoted the following statement from the district court’s order:

However, plaintiff provides as

summary judgment evidence only

portions of the WPATH report, and

no witness testimony or evidence

from professionals in the field

demonstrating

that

the

WPATH-suggested

treatment

option of SRS is so universally

accepted, that to provide some but

not

all

of

the

WPATH-recommended treatment

amounts to deliberate indifference.

Gibson, No. 6:15-cv-190, at 19 (emphasis added). But, the district court did not cite any caselaw for this universal-acceptance standard either. And, a review of relevant caselaw yields no precedent for this standard. It is, therefore, improper to add this unfounded qualification to the well-known deliberate-indifference standard.
In any event, again, it was not Gibson’s burden to show universal acceptance, because the Director failed to present any evidence demonstrating WPATH is not universally accepted. (The Kosilek court quoted Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993), for the proposition that security concerns, as identified by prison administrators in Kosilek, are entitled to great deference—not, as the majority states at 220–21, as support for the controversial nature of SRS and the requirement of “universal consensus”. Kosilek, 774 F.3d at 96.)

3.
The majority, at 221–22 and 222–23 notes 6–7, also cites three outside sources for evidence of the claimed controversy surrounding SRS. In note 6, the majority cites two news articles showing two doctors “are not the only experts at the Johns Hopkins School of Medicine who

Gibson v. Collier, 920 F.3d 212 (2019)

question the necessity and effectiveness of [SRS]”. Johns

Hopkins, however, has opened a transgender health

service and resumed providing SRS to transgender

individuals, a program cancelled by a former chief of

psychiatry who felt SRS was not a viable treatment. Amy

Ellis Nutt, Long Shadow Cast by Psychiatrist on

Transgender Issues Finally Recedes at Johns Hopkins,

Wash.

Post

(5

Apr.

2017),

https://www.washingtonpost.com/national/health-science/

long-shadow-cast-by-psychiatrist-on-transgender-issues-fi

nally-recedes-at-johns-hopkins/2017/04/05/e851e56e-0d8

5-11e7-ab07-07d9f521f6b5_story.html?noredirect=on

*236 & utm_term=.062c67bae5fe.

The Decision Memo by the Centers for Medicare &

Medicaid Services (CMS), cited by the majority at

222–23 note 7, is also unpersuasive, and, in fact, if

anything, supports Gibson’s claim. The memo notes that

CMS is not issuing a national coverage determination

(NCD) for SRS “for Medicare beneficiaries with gender

dysphoria because the clinical evidence is inconclusive

for the Medicare population”, but coverage

determinations for SRS continue to be made locally “on a

case-by-case basis”. CMS, Decision Memo for Gender

Dysphoria and Gender Reassignment Surgery, at 2 (30

Aug.

2016),

https://www.cms.gov/medicare-coverage-database/details/

nca-decision-memo.aspx?NCAId=282 (emphasis added).

The memo goes on to acknowledge that, while SRS “may be a reasonable and necessary service for certain beneficiaries with gender dysphoria”, “[t]he current scientific information is not complete for CMS to make a NCD that identifies the precise patient population for whom the service would be reasonable and necessary”, and “[p]hysician recommendation is one of many potential factors that the local [Medicare Administrative Contractors] may consider when determining whether the documentation is sufficient to pay a claim”. Id. at 40–41. A determination made on a case-by-case basis and supported by physician recommendation is precisely what Gibson has been denied.

4.
It must also be noted that the Kosilek opinion is not nearly as determinative on the issue of the necessity vel non for
16

SRS as the majority suggests. The majority in Kosilek stated: based on the evaluation of Kosilek by numerous medical professionals, the court was convinced that both the Massachusetts Department of Correction’s (DOC) course of treatment and SRS could alleviate Kosilek’s symptoms. Kosilek, 774 F.3d at 90.
But, it was “not the place of [the] court to ‘second guess medical judgments’ or to require that the DOC adopt the more compassionate of two adequate options”. Id. (citations omitted). The first circuit warned that the opinion was not meant to “create a de facto ban against SRS as a medical treatment for any incarcerated individual”, as any such “blanket policy regarding SRS” “would conflict with the requirement that medical care be individualized based on a particular prisoner’s serious medical needs”. Id. at 90–91 (emphasis added) (citing Roe v. Elyea, 631 F.3d 843, 862–63 (7th Cir. 2011) (holding failure to conduct individualized assessment of prisoner’s needs may violate Eighth Amendment)).
I agree the evidence in Kosilek encompassed both Kosilek’s individual medical needs and the broader dispute about the efficacy of SRS; however, the holding in Kosilek is based on Kosilek’s specific circumstances. Id. at 89–92.
Addressing the subjective prong of deliberate indifference, the Kosilek court noted, “it is not the district court’s own belief about medical necessity that controls, but what was known and understood by prison officials in crafting their policy”. Id. at 91 (citation omitted). The court went on to acknowledge that the DOC had “solicited the opinion of multiple medical professionals and was ultimately presented with two alternative treatment plans, which were each developed by different medical experts to mitigate the severity of Kosilek’s mental distress”. Id. (emphasis added). Inherent in that analysis is the fact that Kosilek was evaluated by medical professionals, and the DOC chose a course of *237 treatment for Kosilek recommended by them.
And, contrary to the majority’s assertion at 224–25, the dissent in Kosilek does not suggest anything else. The dissent does state: “the majority in essence creates a de facto ban on sex reassignment surgery for inmates in [the first] circuit”. Kosilek, 774 F.3d at 106–07 (Thompson, J. dissenting). This was due, however, to the majority’s crediting “the divergence of opinion as to Kosilek’s need for surgery”, which “only resulted from the DOC disregarding the advice of Kosilek’s treating doctors and bringing in a predictable opponent to [SRS]”. Id. at 107

Gibson v. Collier, 920 F.3d 212 (2019)
(emphasis added). The dissent concluded: “So the question remains, if Kosilek—who was time and again diagnosed as suffering from severe gender identity disorder, and who was uniformly thought by qualified medical professionals to require surgery—is not an appropriate candidate for surgery, what inmate is”? Id.
The majority at 225 notes Gibson’s brief “acknowledges that, if the logic of Kosilek is correct, it would allow a ‘blanket refusal to provide SRS’ ”. Gibson stated at oral argument, however: to the extent the brief acknowledged the blanket refusal, it was error; and Gibson does not take that position. Oral Argument 09:54–10:47 (“When you read Kosilek, that is not what it says.”). Gibson further stated “the Eighth Amendment claim, as this court’s precedents say repeatedly, turns on ... individualized medical assessments”. Oral Argument 11:40–12:11.
In that regard, unlike Gibson, Kosilek was evaluated for SRS and denied it based on security concerns, uncertainty in the medical community, and conflicting medical opinions regarding Kosilek’s individual needs. Gibson has not even received a requested evaluation, even though the summary-judgment record contains a “clinic note”, electronically signed by Dr. Greene, stating: “Please schedule [Gibson] with unit MD for evaluation for referral for sex change operation and evaluation for medical pass for gender identity disorder.” (Emphasis added.) Moreover, the district court referenced this ordered referral for SRS evaluation in its summary of the relevant summary-judgment evidence. (At oral argument, neither party was aware of this evidence.)
Again, the evaluation ordered by Dr. Greene has never occurred. As noted by the majority at 218, according to TDCJ, Gibson’s requests for evaluation have been denied “because [TDCJ] Policy [No. G-51.11] does not ‘designate [SRS] ... as part of the treatment protocol for Gender Identity Disorder’ ”. Gibson does not contend that TDCJ has refused a doctor’s orders based on the ban per se, but Gibson does contend that requests for evaluations are denied based on the ban, and not on medical advice or valid penological interests. In any event, as our review is de novo, we are allowed to consider the entire record, which shows that a doctor ordered an evaluation, which has not occurred solely due to the ban. (The majority at 218 note 3 states: “Gibson’s counsel does not argue that the clinic note is relevant to this appeal”. But, as noted above, at oral argument neither party was aware it existed. Obviously, Gibson can urge, and has urged, the requirement for an individualized medical assessment of Gibson’s medical needs—as required by the Eighth
17

Amendment—without pointing out this clinic note. As also noted above, the district court referenced the clinic note in its order.)
Gibson also moved in district court to add to the summary-judgment record a news article in which the spokesman for TDCJ stated “it should be noted that offenders cannot have gender reassignment surgery which would be considered *238 elective and is not covered under the TDCJ offender health care plan”, as further proof that TDCJ’s denial of SRS is based on a policy and not on Gibson’s medical need. Gibson’s motion was denied summarily in the order granting summary judgment.
In Gibson’s case, a TDCJ medical professional ordered evaluation for SRS; but TDCJ, not due to a conflicting medical opinion, but instead based on a blanket policy, refused to have Gibson evaluated. This is contrary to the Eighth Amendment’s requirement that any denial of treatment be based on medical judgment in the specific-fact scenario. See Delaughter v. Woodall, 909 F.3d 130, 138–39 & n.7 (5th Cir. 2018) (“We have previously suggested that a non-medical reason for delay in treatment constitutes deliberate indifference.” (citing Thibodeaux v. Thomas, 548 F. App’x 174, 175 (5th Cir. 2013) )); Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (“[G]iven the fact-specific nature of Eighth Amendment denial of medical care claims, it is difficult to formulate a precise standard of ‘seriousness’ ...”. (quoting Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir. 1997) )); Id. (“Just as the relevant ‘medical need’ can only be identified in relation to the specific factual context of each case, the severity of the alleged denial of medical care should be analyzed with regard to all relevant facts and circumstances.” (citation omitted)).
A second dissent in Kosilek disagreed with the standard of review the majority applied to what the dissent deemed were pure questions of fact. Id. at 113–15 (Kayatta, J., dissenting). The dissenting judge stated that even though he disagreed with the trial judge’s findings on the medical necessity of SRS in Kosilek’s case, the judge did not clearly err in finding the medical professionals who concluded SRS was necessary in Kosilek’s case were more credible. Id. In stating why he would have found SRS was not medically necessary, the judge noted he believed one expert “provided carefully nuanced and persuasive testimony that medical science has not reached a wide, scientifically driven consensus mandating SRS as the only acceptable treatment for an incarcerated individual with gender dysphoria”. Id. at 114. The

Gibson v. Collier, 920 F.3d 212 (2019)

majority at 223 concludes that this “admission is fatal to this case”. That the majority believes a statement by a dissenting judge as to how he personally would have weighed the testimony in another case could somehow doom Gibson’s case is wide of the mark. The majority apparently believes Gibson was never entitled to due process for this claim because Kosilek, an out-of-circuit opinion, has foreclosed any advancement in the law and medical research in this area.

In addition, the majority’s analogies to drugs banned by

the FDA at 216–17 and 225–26 are inapposite. First, SRS

is not subject to FDA approval. CMS, Decision Memo for

Gender Dysphoria and Gender Reassignment Surgery, at

5–6

(30

Aug.

2016),

https://www.cms.gov/medicare-coverage-database/details/

nca-decision-memo.aspx?NCAId=282. Second, our focus

in deliberate-indifference cases is on the actions of prison

officials in response to treatment prescribed by medical

professionals for serious medical needs of prisoners.

5.
This blanket ban on even an evaluation for SRS is clearly contrary to Kosilek’s holding. It even goes against TDCJ’s G-51.11 policy, which provides that inmates with gender dysphoria are “evaluated by appropriate medical and mental health professionals and treatment determined on a case by case basis as clinically indicated”, according to the “[c]urrent, accepted standards *239 of care”. TDCJ has denied Gibson evaluation for SRS and having treatment determined based on individualized needs, which is mandated under the “current, accepted standards of care”—WPATH—relied on by TDCJ in crafting its policy. Other circuits have time and again held that refusal to treat, or evaluate for treatment, based on a blanket policy and not medical judgment, could constitute deliberate indifference. See, e.g., Rosati v. Igbinoso, 791 F.3d 1037 (9th Cir. 2015) (per curiam); Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014); Fields v. Smith, 653 F.3d 550 (7th Cir. 2011).
More importantly, our precedent suggests a refusal to evaluate Gibson for SRS or a decision to deny SRS not based on medical judgment could constitute deliberate indifference. See, e.g., Delaughter, 909 F.3d at 138–39 & n.7 (“We have previously suggested that a non-medical
18

reason for delay in treatment constitutes deliberate indifference.” (collecting cases)); see also Estelle, 429 U.S. at 104–05, 97 S.Ct. 285 (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” (internal citation and footnotes omitted)). If “intentionally interfering with the treatment once prescribed” could constitute a violation of the Eighth Amendment, surely a blanket refusal to be evaluated for treatment could also constitute a claim.
6.
The majority at 222–23 note 8 states no circuit has disagreed with Kosilek; however, that does not tell the full story. I am not aware of any circuit that has considered another case regarding SRS which has gone through a full trial, instead of being dismissed at the Rule 12(b)(6) or summary-judgment stages. See, e.g., Rosati, 791 F.3d 1037; De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013).
As the majority notes, the fourth and ninth circuits have allowed Eighth Amendment claims to survive motions to dismiss for failure to state a claim. See Maj. Opn. at 223–24 note 8 (citing Rosati, 791 F.3d at 1040; De’lonta, 708 F.3d at 526); see also De’lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) (regarding a request for hormone therapy). In doing so, the fourth and ninth circuits have suggested the failure to provide medical care based on an administrative policy, and not on medical judgment, could constitute deliberate indifference. See Rosati, 791 F.3d at 1039–40 (citing Colwell, 763 F.3d at 1063 (“holding that the ‘blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that one eye is good enough for prison inmates is the paradigm of deliberate indifference’ ”)); De’lonta, 330 F.3d at 635 (“In fact, [the doctor’s] response ... which states that there was no gender specialist at [the consulting medical facility] and that [the prison’s] policy is not to provide hormone therapy to prisoners, supports the inference that [the] refusal to provide hormone treatment to De’lonta was based solely on the Policy rather than on a medical

Gibson v. Collier, 920 F.3d 212 (2019)
judgment concerning De’lonta’s specific circumstances.” (emphasis added)).
Nor are the majority’s cited cases regarding hormone therapy persuasive, because, as the majority states at 223–24 note 8, the holdings were limited to the individual cases. In Praylor v. Texas Department of Criminal Justice, our court *240 held that, “on [that] record, the refusal to provide hormone therapy did not constitute the requisite deliberate indifference”. 430 F.3d 1208, 1209 (5th Cir. 2005) (emphasis added). In Supre v. Ricketts, decided in 1986, the tenth circuit also held the failure to treat the plaintiff with hormone therapy did not rise to deliberate indifference. In so holding, the court explained:
It is apparent from the record that there were a variety of options available for the treatment of plaintiff’s psychological and physical medical conditions. It was never established, however, that failing to treat plaintiff with estrogen would constitute deliberate indifference to a serious medical need. While the medical community may disagree among themselves as to the best form of treatment for plaintiff’s condition, the [prison] made an informed judgment as to the appropriate form of treatment and did not deliberately ignore plaintiff’s needs.
792 F.2d 958, 963 (10th Cir. 1986) (emphasis added).
Supre was examined by two endocrinologists and a psychiatrist, each of whom considered estrogen therapy as a course of treatment. Id. at 960. Two of the doctors advised against hormone therapy because of its dangers and controversial nature at that time. Id. But, one of the endocrinologists recommended hormone therapy. Id. The prison made “an informed judgment” based on the recommendations of Supre’s doctors, not based on a policy. Id. at 963.
Finally, the majority at 223–24 note 8 cites Meriwether v. Faulkner, decided by the seventh circuit in 1987. The Meriwether court, in allowing the Eighth Amendment
19

claim to survive a motion to dismiss, stated: “[Plaintiff] does not have a right to any particular type of treatment, such as estrogen therapy ....” 821 F.2d 408, 413 (7th Cir. 1987). In 2011, however, the seventh circuit explained in Fields v. Smith that the Meriwether language was dicta, and held “the evidence at trial indicated that plaintiffs could not be effectively treated without hormones”. 653 F.3d at 555–56. Therefore, the court affirmed the district court’s ruling that the Wisconsin statute in question, “which prohibit[ed] the Wisconsin Department of Corrections ... from providing transgender inmates with certain medical treatments”, id. at 552, was invalid, both on its face and as applied to plaintiffs, as a violation of the Eighth Amendment, id. at 559.
7.
The majority has missed the mark. The question is not whether there is a broad medical controversy, but whether there is a disagreement about the efficacy of the treatment for this particular prisoner, based on this prisoner’s individual needs. Obviously, what is not medically necessary for one person, may be medically necessary for another. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“Whether a course of treatment was the product of sound medical judgment, negligence, or deliberate indifference depends on the facts of the case.”).
This fact-specific inquiry required by the Eighth Amendment is exactly why we cannot rely solely on the record in Kosilek in determining the medical necessity in Gibson’s case, unlike the procedure used in the below-described First Amendment precedent relied on by the majority at 224–25 note 9.
Never mind that the Director did not “borrow from Kosilek” as the majority suggests at 224–25; again, the Director did not even cite Kosilek in his summary-judgment motion. Again, in this record, the only evidence of medical necessity is the WPATH Standards of Care. Contrary to *241 the majority’s above-noted position at 224–25 and note 9, the need for individualized medical determinations is obviously different from the general evidence required to show a State’s compelling interest in protecting its citizens from corruption of the political system by large campaign contributions or from the secondary effects caused by a strip club or adult

Gibson v. Collier, 920 F.3d 212 (2019)
theater. See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000); City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
Even if the Director had cited Kosilek in district court, we are required, at this summary-judgment stage, to view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant—Gibson. See Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (citations omitted). The testimony in Kosilek, coupled with the WPATH Standards of Care, when viewed in the light most favorable to Gibson, demonstrate a genuine dispute of material fact on the medical necessity of SRS in general. And, on this record, we cannot know if SRS is medically necessary for Gibson, because Gibson has been denied the right to an evaluation and the due-process right to make a record on this point of contention.
The majority consistently misconstrues the correct standard. At 216–17, the majority quotes Delaughter, 909 F.3d at 136, stating: “ ‘[M]ere disagreement with one’s medical treatment is insufficient’ to state a claim under the Eighth Amendment.” See also Maj. Opn. at 220 (quoting Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) ). This is correct; “mere disagreement with one’s medical treatment is insufficient to show deliberate indifference”. Delaughter, 909 F.3d at 136 (citation omitted).
But, the majority at 216 goes on to claim that “[t]his bedrock principle dooms this case” because of the broad medical controversy surrounding SRS. This is incorrect. A prisoner’s mere disagreement with his medical treatment is insufficient to show deliberate indifference when: the prisoner has, in fact, been evaluated by a medical professional; the medical professional has prescribed a course of treatment; and the prisoner then disagrees with that course of treatment. See, e.g., Estelle, 429 U.S. at 107, 97 S.Ct. 285 (prisoner disagreed with diagnosis and treatment plan by medical professionals); Norton, 122 F.3d at 291–92 & n.1 (prisoner disagreed with medical treatment and asserted prison should have tried alternative methods of treatment or different diagnostic measures, but medical records showed prison officials followed medical treatment prescribed by doctors and afforded prisoner extensive medical care); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (prisoner disagreed with revocation of his “diet card” after medical personnel determined the newly-built ramps in the dining
20

hall made the diet card unnecessary).
Gibson, on the other hand, has been treated for SRS in the form of hormone therapy. Gibson does not deny that. Gibson, however, avers the hormone therapy is not adequate and SRS may be medically necessary to treat Gibson’s gender dysphoria, and requests an evaluation for SRS. Ordinarily, the majority would be correct in stating this would not be enough to show deliberate indifference. But, the difference in this case is that a medical professional ordered Gibson be evaluated for SRS. This evaluation has never happened because of the prison’s ban on SRS, not because of any treatment plan by a medical professional. See Maj. Opn. at 217–18.
*242 I am not taking a position on whether Gibson’s claim constitutes deliberate indifference. But, the Director’s refusal to have Gibson evaluated for SRS, contrary to a medical professional’s order and based on a blanket ban, could constitute deliberate indifference; and, Gibson should, as a matter of due process, be allowed to conduct discovery and build a record on this claim, including being evaluated by a medical professional to determine the medical necessity of SRS in Gibson’s case.
8.
The majority goes to great lengths at 19–23 discussing the text and original understanding of the Eighth Amendment’s “cruel and unusual punishment” standard. Its analysis is unnecessary; the standard has been long established. In Estelle, the Supreme Court held “that deliberate indifference to serious medial needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment”. 429 U.S. at 104, 97 S.Ct. 285 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ); see, e.g., Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (“A prison official violates the Eighth Amendment’s prohibition against cruel and unusual punishment when his conduct demonstrates deliberate indifference to a prisoner’s serious medical needs, constituting an ‘unnecessary and wanton infliction of pain.’ ” (citation omitted)); Barksdale v. King, 699 F.2d 744, 748 (5th Cir. 1983) (“ ‘[A]cts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs’ of inmates constitute cruel and

Gibson v. Collier, 920 F.3d 212 (2019)

unusual punishment.” (alteration in original; second emphasis added) (quoting Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir.), vacated in part by 688 F.2d 266 (5th Cir. 1982) (this portion of opinion vacated because parties entered into settlement before original opinion issued without disclosing to court))); Dickson v. Colman, 569 F.2d 1310, 1311 (5th Cir. 1978) (“The Court [in Estelle] held that inadequate medical care did not constitute cruel and unusual punishment cognizable under section 1983 unless the mistreatment rose to the level of ‘deliberate indifference to serious medical needs.’ ” (quoting Estelle, 429 U.S. at 106, 97 S.Ct. 285)).
We, therefore, are not at liberty to undertake the text-and-original-understanding analysis. Instead, we must decide only: whether the prisoner has a serious medical need (the Director has conceded Gibson does); and, if there is a serious medical need, whether the prison has been deliberately indifferent to that need. End of analysis.

III.
The inadequate summary-judgment record does not provide any evidence regarding the medical community’s current opinion on the necessity of SRS in treating gender dysphoria in general, much less in regard to Gibson; and we cannot base the medical community’s standards on evidence submitted in a four-year-old case. Nor can we depart even further from the record and caselaw to make our own record, ignoring the genuine disputes of material fact at hand. This case does not call into question the “text [or] original understanding” of the Eighth Amendment, see Maj. Opn. at 226–27; the controlling medical-deliberate-indifference standard for prisoners is well-established. Instead, at issue is fundamental fairness—the right to due process. Summary judgment was improper; and, therefore, I must respectfully dissent.
All Citations
920 F.3d 212

Footnotes

1

In reaching this judgment, we express no opinion on the ongoing debate over the medical necessity or efficacy of

sex reassignment surgery, other than to acknowledge the existence and vigor of that debate. Nor do we express any

opinion as to what alternative medical treatments, if any, Texas prison officials might voluntarily offer to Gibson, as

a matter of policy or compassion. We conclude only that the Constitution affords us no authority, as a court of law,

to make such decisions on behalf of Texas.

2

We use male pronouns, consistent with TDCJ policy—which Gibson does not appear to challenge. Tex. Dep’t of

Criminal

Justice,

OFFENDER

INFORMATION

DETAILS:

SCOTT

LYNN

GIBSON,

https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=05374437 (last visited Mar. 29, 2019)

(listing Gibson as male and assigning him to male-only prison facility). See also Farmer v. Brennan, 511 U.S. 825, 829,

832, 851, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (using male pronouns for transgender prisoner born male); id. at

852–54, 114 S.Ct. 1970 (Blackmun, J., concurring) (same); Praylor v. Texas Dep’t of Criminal Justice, 430 F.3d 1208,

1208–9 (5th Cir. 2005) (per curiam) (same); cf. Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d

583 (1973) (Brennan, J.) (plurality op.) (“[S]ex ... is an immutable characteristic determined solely by ... birth.”).

3

The dissent refers to a “clinic note” seeking to schedule Gibson for an individualized assessment for sex

reassignment surgery, but acknowledges that Gibson’s counsel does not argue that the clinic note is relevant to this

appeal. Diss. Op. at 237.

4

Gibson also sued “Dr. D. Greene” at the prison hospital, along with the Municipality of Gatesville. The district court

dismissed both of those defendants, and those claims are not at issue in this appeal.

5

The dissent contends that we have somehow misapplied the standards governing summary judgment. The

21

Gibson v. Collier, 920 F.3d 212 (2019)

contention is meritless. We all agree that summary judgment is proper where there is no genuine dispute as to any material fact—and that the underlying substantive law (here, the Eighth Amendment) dictates which facts are material. As we explain below, Eighth Amendment precedent establishes that medical disagreement is not actionable. Given the demonstrable medical disagreement over sex reassignment surgery, we conclude—consistent with established precedent—that there are no material facts in dispute here. In sum, the dissent’s disagreement concerns substantive Eighth Amendment law, not the standards that govern summary judgment. The dissent’s related complaint—that we have somehow misplaced the burden of production on Gibson, rather than on TDCJ where it belongs—fails for similar reasons. To recognize the futility of Gibson’s claim does not place the burden of production on him. It simply follows from the established rule that summary judgment is proper in the absence of a dispute over facts that might affect the outcome of the suit under the governing law.

6

Schmidt and Osborne are not the only experts at the Johns Hopkins School of Medicine who question the necessity

and effectiveness of sex reassignment surgery. See, e.g., Paul McHugh, Transgender Surgery Isn’t the Solution, WALL

ST.

J.

(May

13,

2016),

https://www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-1402615120; see also Amy Ellis

Nutt, Long Shadow Cast by Psychiatrist on Transgender Issues Finally Recedes at Johns Hopkins, WASH. POST (Apr. 5,

2017),

https://www.washingtonpost.com/national/health-science/long-shadow-cast-by-psychiatrist-on-transgender-issues

-finally-recedes-at-johns-hopkins/2017/04/05/e851e56e-0d85-11e7-ab07-07d9f521f6b5_story.html?noredirect=on

& utm_term=.062c67bae5fe.

7

Nor is the Kosilek testimony alone in questioning the efficacy of sex reassignment surgery. In August 2016, for

example, the Center for Medicare & Medicaid Services at the U.S. Department of Health and Human Services issued

a “Decision Memo for Gender Dysphoria and Gender Reassignment Surgery.” The memo surveyed the available

medical literature and found that there was insufficient expert medical evidence to support sex reassignment

surgery with respect to Medicare and Medicaid patients. See generally CMS, Decision Memo for Gender Dysphoria

and

Gender

Reassignment

Surgery

(Aug.

30,

2016),

https://www.cms.gov/medicare-coverage-database/details/nca-decision-memo.aspx?NCAId=282.

8

We are not aware of any circuit that has disagreed with Kosilek. The Fourth and Ninth Circuits allowed Eighth

Amendment claims for sex reassignment surgery to survive motions to dismiss, without addressing the merits. See

Rosati v. Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015) (per curiam); De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir.

2013).

Moreover, various circuits, including our own, have rejected Eighth Amendment claims for hormone therapy—never

mind sex reassignment surgery—to treat gender dysphoria, at least in individual cases. See Praylor, 430 F.3d at 1209

(“[W]e hold that, on this record, the refusal to provide hormone therapy did not constitute the requisite deliberate

indifference.”); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (“[Prisoners do] not have a right to any

particular type of treatment, such as estrogen therapy.”); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (“It

was never established, however, that failing to treat plaintiff with estrogen would constitute deliberate indifference

to a serious medical need. While the medical community may disagree among themselves as to the best form of

treatment for plaintiff’s condition, the [prison] made an informed judgment as to the appropriate form of treatment

and did not deliberately ignore plaintiff’s medical needs.”).

9

Cf. City of Erie v. Pap’s A.M., 529 U.S. 277, 297, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality op.) (“Erie could

reasonably rely on the evidentiary foundation set forth in [City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106

S.Ct. 925, 89 L.Ed.2d 29 (1986)] and [Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d

310 (1976)] to the effect that secondary effects are caused by the presence of even one adult entertainment

establishment in a given neighborhood.”); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 393 n.6, 120 S.Ct.

897, 145 L.Ed.2d 886 (2000) (“ ‘The First Amendment does not require a city, before enacting ... an ordinance, to

22

Gibson v. Collier, 920 F.3d 212 (2019)

conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.’ ”) (alteration in original) (quoting Playtime Theatres, 475 U.S. at 51–52, 106 S.Ct. 925).

10 See also John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739, 1745 (2008) (“As used in the Eighth Amendment, the word ‘unusual’ was a term of art that referred to government practices that are contrary to ‘long usage’ or ‘immemorial usage.’ Under the common law ideology that came to the founding generation through Coke, Blackstone, and various others, the best way to discern whether a government practice comported with principles of justice was to determine whether it was continuously employed throughout the jurisdiction for a very long time, and thus enjoyed ‘long usage.’ The opposite of a practice that enjoyed ‘long usage’ was an ‘unusual’ practice, or in other words, an innovation.”) (footnotes omitted).

11 See, e.g., Quine v. Beard, 2017 WL 1540758, *1 (N.D. Cal. Apr. 28, 2017) (“Under the Agreement, [the California

Department of Corrections and Rehabilitation] agreed to provide sex reassignment surgery to Plaintiff.”); Kristine

Phillips, A Convicted Killer Became the First U.S. Inmate to get State-Funded Gender-Reassignment Surgery, WASH.

POST

(Jan.

10,

2017),

https://www.washingtonpost.com/news/post-nation/wp/2017/01/10/a-transgender-inmate-became-first-to-get-st

ate-funded-surgery-advocates-say-fight-is-far-from-over/?utm_term=.e236ac6bbd90 (“After a lengthy legal battle, a

California transgender woman became the first inmate in the United States to receive a government-funded

gender-reassignment surgery.”); see also Rosati, 791 F.3d at 1040 (“[T]he state acknowledged at oral argument that

no California prisoner has ever received SRS.”).

23