# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted September 17, 2019 *

Decided September 20, 2019

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 19-1619

J OHN H. BALSEWICZ, Plaintiff-Appellant

,

v

.

CRAIG BLUMER, et al.

, Defendants-Appellees

. Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 17-CV-360-JPS

J . P. Stadtmueller, J udge

.

O R D E R

John Balsewicz, also known as Melissa, is a transgender prisoner who has been diagnosed with gender dysphoria and depre ssion. She sued various prison healthcare providers under 42 U.S.C. § 1983, alleging that they unconstitutionally delayed hormone treatment, inadequately addressed he r suicidal ideation, and retaliated against her for complaining about sexual harassment. We affirm the district court’s entry of summary judgment for the defendants.

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts an d legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1619 Page 2

We review the evidence in the lig ht most favorable to Balsewicz. See Rosario v.
Brawn , 670 F.3d 816, 820 (7th Cir. 2012). In Apr il 2016, while housed at the Waupun Correctional Institution, Balsewicz under went an assessment for gender dysphoria. A doctor should have forwarded the results to the Wisconsin Department of Corrections’s Transgender Committee for consideratio n of the proper accommodations and treatment, but he failed to do so.

A short time later, Balsewicz was transf erred to the Wisconsin Resource Center to receive mental health treatment. She re ported that she thought constantly about suicide and had been depressed her whol e life; she was diagnosed with major depressive disorder and borderline personal ity disorder. The Resource Center assigned her to a depression support group and to Dialectical Behavioral Therapy (“DBT”)— specialized group treatment for inmates with personality disorders who have thoughts of self-harm.

In September, Balsewicz asked about th e status of her gender dysphoria assessment. A Resource Center doctor disco vered that her assessment had not been forwarded to the Committee and immediately sent it. The Committee determined that Balsewicz was an appropriate candidate to see the gender dysphoria consultant. An appointment was scheduled for the next available opening, roughly five months later.

Over time, members of Balsewicz’s DBT treatment team observed that she was more focused on her gender dysphoria than on being treated for her thoughts of selfharm—the reason for which she was placed in the DBT group. Balsewicz voiced her desire to be treated for her gender dyspho ria and stated that her depression stemmed from not being treated. In early December, he r treatment team agreed to discontinue the DBT; she remained in group therapy for her depression. Throughout this time, Balsewicz reported that, while she still had thoughts of self-harm and was depressed, she had no intent to attempt self-harm.

Later in December, however, Balsewicz was placed in clinical observation after she told a social worker that she intended to kill herself by overdosing on pills or cutting her wrists. Inmates under observatio n are checked every fifteen minutes, and cameras in the cells assist with monitori ng. Additionally, inmates are allowed only property that staff believe will not pose a sa fety risk. At first, Balsewicz was allowed only a security smock, mattress, and safety bl anket. After treatment staff met with her, assessed her condition, and determined th at she was calm and cooperative, they allowed her to wear her regular clothing. Two days later, however, Balsewicz tried toNo. 19-1619 Page 3

hang herself by making a ligature out of her clothes. She was sent to the hospital for evaluation, deemed stable, and returned to observation.

A few days later, a doctor and a social worker met with Balsewicz for therapy. At the end of the session, Balsewicz grabbed scisso rs from a table. She made no attempt to harm anyone. Instead, the staff believed that she was trying to be helpful by letting them know that there was a possible weapon sitting out. But given Balsewicz’s history of violence and her decision to grab the sciss ors, staff also reported their concern that she had made an indirect threat. So, they issued her a conduct report and moved her to the high management unit for more monitori ng. The next day, Balsewicz used the lens of her eyeglasses to cut her arm; staff assessed her and put her back on observation. A week later, she called for help and, when a te chnician arrived, she swallowed a handful of lithium pills that she had been hoarding. Staff sent her to the hospital, where tests showed that her lithium levels were elev ated but still within the normal range.

Balsewicz filed a grievance in January, alle ging that, at a therapy session back in early November, a social worker had sexually harassed her by initiating sexually explicit conversations and providing her with a pair of women’s underwear. She stated that she had immediately reported the incident but was not taken seriously. The Resource Center investigated her claims and found that no staff member had committed a sexual harassment violation.

Balsewicz eventually saw the gender dysphoria consultant in February 2017. The consultant recommended against hormone tr eatment due to Balsewicz’s psychological instability. The consultant reevaluated Balsewi cz about a year later and determined that she could start hormone treatment, which began in September 2018.

In the meantime, Balsewicz had sued numerous doctors and members of her mental health treatment team, alleging that they had been deliberately indifferent to her gender dysphoria and risk of suicide. She further claimed that the defendants removed her from treatment in retaliation for her o ral complaint about se xual harassment. The district court granted the defendan ts’ motion for summary judgment.

On appeal, Balsewicz first contends that she submitted sufficient evidence to create a factual issue about whether members of her treatment team were indifferent to her risk of suicide by allowing her to have her regular clothing while on observation. But nothing in the record suggests that any defendant intentionally or recklessly disregarded her risk of suicide, such as by failing to take reasonable steps to prevent herNo. 19-1619 Page 4

suicide attempts. See Farmer v. Brennan , 511 U.S. 825, 832 (1994); Rosario , 670 F.3d at 821– 22. Here, the defendants began frequent monito ring of Balsewicz from the moment that she threatened to attempt suicide. She was pl aced on observation, checked every fifteen minutes, and given limited access to clothing and other items. Although the defendants
allowed her to wear clothes that she then used to try to hang herself, that decision was made only after the treatment team assessed her and deemed it safe. They were wrong, but a reasonable jury could not conclude th at allowing Balsewicz to wear her regular clothes, while still under observation, was su ch a departure from professional judgment that it constituted deliberate indifference. See Youngberg v. Romeo

, 457 U.S. 307, 323 (1982); McGee v. Adams , 721 F.3d 474, 481 (7th Cir. 2013).

We reach the same conclusion about Balsewicz’s two other suicide attempts. Balsewicz had told her treatment team that she could attempt suicide by cutting her wrists or overdosing on pills. But allowing her to keep her glasses while in the high management unit demonstrates, at worst, negligence; the deliberate-indifference standard presents a higher bar. See Farmer , 511 U.S. at 836. Further, the defendants were unaware that Balsewicz was hoarding her li thium pills; she reported that she was taking the pills and that they were improvin g her mood. Even if the defendants could
have done more to ensure that she took her pills every day—her observation cell was searched weekly—deliberate indifference requir es more than a showing of negligence.
See Farmer , 511 U.S. at 836.

As for Balsewicz’s argument that the defendants unlawfully delayed her hormonal treatment, the delay did not rise to the level of deliberate indifference. Inexplicable delays in treatment can, in so me cases, constitute deliberate indifference.
See Petties v. Carter , 836 F.3d 722, 730 (7th Cir. 2016) (en banc). Here, there was a fivemonth delay in forwarding her gender dy sphoria assessment to the Committee for consideration. But the doctor responsible atte sted that he had accidentally overlooked sending the assessment—he had sent another pa tient’s file at the same time. Balsewicz has presented no evidence to contest this. Th e second doctor attested that he sent the assessment immediately upon discovering it, and Balsewicz has no evidence to support her speculation that he knew about the assessment sooner.

Finally, Balsewicz contends that the dist rict court erred in entering summary judgment for the defendants on her claim that they retaliated against her for her “verbal complaint” of staff misconduct by removing her from DBT treatment a month after her complaint and ignoring her threats of self-h arm. But the only evidence of retaliation that Balsewicz presents is what she believes is suspicious timing, which by itself is notNo. 19-1619 Page 5

enough to establish retaliatory motive. See Gracia v. SigmaTron Int’l, Inc. , 842 F.3d 1010, 1021 (7th Cir. 2016). She presents no evidence to refute the defendants’ stated reasons for their decision to remove her from treatm ent (her disruptive behavior and a lack of commitment to treatment). And we already have concluded that her risk of suicide was not ignored but handled within a permissi ble range of professional judgment.

We have considered Balsewicz’s remaining arguments, and none has merit.

AFFIRMED