___________

No. 95-1613

___________

Merlin C. Long, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Crispus C. Nix; Sally Chandler- *

Halford, as Director of the *

Iowa Department of Corrections; *

Thomas Hundley, Warden of ISP; *

Paul W. Grossheim; Paul W. *

Loeffelholz; *

*

Appellees. *

___________

 Submitted: February 23, 1996

 Filed:

___________

Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Merlin C. Long is serving a life sentence at the Iowa State

Penitentiary (ISP) for the brutal murder of a woman. See Long v. Brewer,

253 N.W.2d 549, 551 (Iowa 1977). He filed this 42 U.S.C. § 1983 (1994)

lawsuit against officials of the Iowa Department of Corrections seeking,

among other things, treatment for a gender-identity disorder and damages

for the defendants' alleged deliberate indifference to his gender-identity

disorder. Based on the evidence introduced during a one-day bench trial,

the District
 The Honorable Celeste F. Bremer, United States Magistrate

1

Judge for the Southern District of Iowa. The case was tried before

Magistrate Judge Bremer by consent of the parties pursuant to 28

U.S.C. § 636(c) (1994).

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Court held that (1) the extent of Long's gender-identity disorder does not 1

constitute a serious medical need, (2) even if Long has a serious medical

need, the defendants were not deliberately indifferent to that need, and

(3) the defendants were entitled to qualified immunity from Long's claim

for damages. Long v. Nix, 877 F. Supp. 1358, 1365-67 (S.D. Iowa 1995).

Long timely appeals from the judgment of the District Court, and we affirm.

I.

Long began his stay at ISP in 1964. He arrived in full drag, but

initially prison officials refused to let him wear women's clothes.

Following a hunger strike that began shortly after his arrival, Long was

allowed to wear women's clothes and make-up on a regular basis. This

privilege, however, was revoked in 1981 after a member of the Iowa Parole

Board complained to prison officials about Long's attire. Since 1981 Long

repeatedly has sought permission to wear women's clothing and make-up. ISP

officials have denied his request each time. He also has requested hormone

therapy and sex-change surgery. Aside from these requests, however, Long

has not sought, nor have prison health services employees ordered, any

treatment for a gender-identity disorder. In fact, Long has repeatedly

refused to cooperate with prison psychologists and psychiatrists over the

past twenty years. See Long, 877 F. Supp. at 1362; see also Program Review

Committee Pre-Parole Evaluation (Feb. 3, 1978); Psychiatric Consultation

(Apr. 24, 1981); Psychiatric Evaluation (Feb. 15, 1986). 

As the District Court found, Long's 1990 evaluation was unproductive

because Long presented himself in a "hostile and belligerent," "verbally

abusive and abrasive manner." Long, 877
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F. Supp. at 1362. During his 1991 psychological evaluation, all Long

requested was "what he deserves": a transfer from ISP to a less structured

setting. Id. The psychologist concluded that "[a]t this point in time

there are no psychological or psychiatric issues that need to be

addressed." Psychological Evaluation (Jan. 30, 1991). In 1992, Long

"indicated no mental health issues or problems," and the psychologist

concluded that there were no psychological issues that needed to be

addressed. Psychological Evaluation (Jan. 29, 1992). In 1993, Long

refused to participate in a psychological interview and "no meaningful

psychological report" was submitted. Long, 877 F. Supp. at 1362. In

contrast to Long's behavior, the record shows that prison officials have

been responsive to Long's requests for treatment when they were reasonable.

In 1982, for example, Long requested "treatment and evaluation" at the Iowa

State Medical Facility (ISMF). ISMF Referral (Feb. 12, 1982). His request

was granted, and he was transferred to ISMF. Later that same year he was

transferred at his own request to a Missouri maximum security prison where

he was allowed to wear women's clothing at all times. In 1986 he returned

to ISP. His complaints to a member of the medical staff at that time

"center[ed] around the fact that he will not be allowed to have the

numerous articles of female clothing which he owns." Psychiatric

Evaluation (Feb. 15, 1986). Long, however, never has shown a continued

interest in psychiatric evaluation or treatment either for depression or

his gender-identity disorder. "In 1994, Long [again] declined to be

interviewed for his annual psychological evaluation. Long explained that

he is apprehensive about meeting with ISP staff members because they are

unsympathetic and because he thinks it is unlikely that he will be

paroled." Long, 877 F. Supp. at 1362.

At trial, Dr. Walter O. Bockting, Ph.D., testified that Long has

developed an intense gender dysphoria. His report diagnosed Long as

suffering from a gender-identity disorder not otherwise specified, a sexual

disorder not otherwise specified, and an
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antisocial-personality disorder. Dr. Bockting concluded that Long has

other emotional problems in addition to his gender-identity disorder,

stating that tests indicated that Long "may be demanding, rebellious,

hostile, aggressive, antisocial, impulsive, exhibitionistic, and

promiscuous." Id. Dr. Bockting suggested that these traits result from

the dysfunctional family setting in which Long was raised. Id.

Several of the psychologists and psychiatrists that had worked with

Long at ISP also testified at trial. The state's principal expert witness

was Dr. Paul W. Loeffelholz, M.D. For the most part, Dr. Loeffelholz did

not disagree with Dr. Bockting's diagnoses. As the District Court noted,

however, the diagnoses were in conflict on some points. See id. at 1365-

66. The main disagreement between the experts was whether Long's genderidentity disorder is his predominate psychiatric condition. Dr. Bockting

stated that Long's primary psychiatric condition is his gender-identity

disorder. Dr. Loeffelholz testified that Long's gender-identity disorder

is intermittent and generally exhibited when Long is under stress, while

his "primary psychological problem is his serious antisocial and

manipulative behavior." Id. at 1363. At bottom, the difference in

diagnoses turns on whether Long primarily wants to wear women's clothing

to achieve sexual arousal or to satisfy his desire to be a woman.

Despite his opinion that Long's gender-identity disorder is Long's

principal condition, Dr. Bockting admitted that he believes that Long wears

women's clothing both to express his feminine identity and for sexual

stimulation. Dr. Bockting concluded that, because Long experiences some

arousal, he suffers in part from paraphilia (a sexual attraction to an

unusual subject or object) and transvestic fetishism (sexual arousal from

cross-dressing). As a result, Dr. Bockting stated that Long "does not meet

the minimal requirements that would make him eligible" for hormone therapy

or
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sex-change surgery. Id. at 1362. The experts thus agreed that Long is not

a transsexual.

In contradistinction to their general agreement on the diagnosis, the

experts flatly disagreed about the appropriate treatment for Long's

condition. Dr. Bockting recommended psychotherapy for Long's genderidentity disorder combined with tranquilizers for the depression and

anxiety that has resulted from his inability to wear women's clothes. If

the tranquilizers prove to be ineffective, Dr. Bockting recommended that

Long be given limited opportunities to wear women's clothes to relieve his

anxiety. Dr. Loeffelholz disagreed and noted that Long has not requested

treatment for his anxiety or depression nor has he fully cooperated with

prison psychologists so that the staff could properly respond to his

anxiety or depression, let alone his gender-identity disorder.

The District Court found that Dr. Loeffelholz had refused to

prescribe tranquilizers "[i]n spite of Dr. Bockting's recommendation." Id.

at 1363. The District Court nonetheless found that Dr. Loeffelholz's

refusal was based on a difference in professional judgment. Id. at 1363,

1366. As a result, the court concluded that "[Dr.] Loeffelholz did not act

with deliberate indifference to Long's allegedly serious medical need" and

that the other defendants "were justified in relying on the opinions of

medical staff." Id.

II.

Long argues, among other things, that the District Court erred when

it held that his gender-identity disorder does not constitute a serious

medical need and that the defendants were not
 Because we agree with the District Court's conclusion that

2

the prison officials did not act with deliberate indifference to

Long's gender-identity disorder, we need not and do not address his

arguments regarding the prison officials' entitlement to qualified

immunity.

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deliberately indifferent to his gender-identity disorder. Furthermore,

2

Long argues that both the District Court's findings of fact and its

conclusions of law are subject to de novo review "in light of the societal

values underlying the relevant legal concepts." Appellant's Brief at 2

(citing Falls v. Nesbitt, 966 F.2d 375, 377 (8th Cir. 1992)). We first

address the standard of review.

A.

In Nesbitt, we stated that "[m]ixed questions of law and fact that

require the consideration of legal concepts and involve the exercise of

judgment about the values underlying legal principles are reviewable de

novo." Id. While we believe that the term "mixed question of law and

fact" is confusing and best discarded, Nesbitt cannot be read to permit the

de novo review of the factual findings of a district court. First, in

Nesbitt, the "operative facts" were "not in dispute." Id. at 376. Second,

we began our discussion of the standard of review by stating that "[t]he

trial judge's findings of fact will not be set aside unless they are found

to be `clearly erroneous.'" Id. at 377 (quoting Fed. R. Civ. P. 52(a)).

The language cited by Long thus stands for the unremarkable proposition

that a legal conclusion drawn from established facts is subject to de novo

review. Despite Long's invitation, we decline to subject the District

Court's findings of fact in this case to de novo review. As usual, we

review the factual findings of the District Court for clear error and its

legal conclusions de novo. See, e.g., Little Rock School Dist. v. Pulaski

County Special School Dist., #1, Nos. 95-1481 & 95-1482, slip op. at 8 (8th

Cir. May 15, 1996); Williams v. Carter, 76 F.3d
 A psychological disorder may constitute a serious medical

3

need. White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988). We

have held that transsexualism is a serious medical need, id.,

though that holding may be in doubt in light of Farmer v. Brennan,

114 S. Ct. 1970 (1994), and subsequent cases. It is undisputed in

this case, however, that Long is not a transsexual, and thus White

does not control the resolution of whether Long's gender-identity

disorder is a serious medical need.

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199, 200 (8th Cir. 1996) (per curiam); see also Ornelas v. United States,

No. 95-5257, 1996 WL 276414 at *6 (U.S. May 28, 1996) (historical facts

reviewed "only for clear error" but legal conclusions such as "reasonable

suspicion" and "probable cause" reviewed de novo). After reviewing the

trial transcript and the documentary evidence, we conclude that the

relevant factual findings of the District Court, as outlined above, are not

clearly erroneous.

B.

Turning to the merits of Long's legal arguments, we conclude that he

failed to prove that the prison officials acted with deliberate

indifference. Deliberate indifference to the serious medical needs of a

prisoner constitutes cruel and unusual punishment, Estelle v. Gamble, 429

U.S. 97, 102-03 (1976), and the Constitution prohibits state governments

from inflicting such punishments, Louisiana ex rel. Francis v. Resweber,

329 U.S. 459, 463 (1947) (stating that Due Process Clause of Fourteenth

Amendment incorporates Eighth Amendment's guarantee against cruel and

unusual punishment). We assume without deciding that Long's genderidentity disorder constitutes a serious medical need for the purposes of

this case.3

"A prison official exhibits deliberate indifference when the official

actually `knows of and disregards' a prisoner's serious medical needs."

Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (quoting Farmer v. Brennan,

114 S. Ct. 1970, 1977, 1979 (1994)). 
 We also agree with the District Court's conclusion, Long, 877 4

F. Supp. at 1366, that the other defendants were entitled to rely

on the opinions of the medical staff when refusing Long's requests

to cross-dress. See Heidemann v. Rother, Nos. 94-4112 & 95-1136,

slip op. at 11-12 (8th Cir. May 23, 1996).

 In his Reply Brief, Long alleges that his anxiety and

5

depression constitute independent serious medical needs and that

cross-dressing is the appropriate treatment for these conditions.

Reply Brief at 7. This argument is not properly before us, having

been raised for the first time in Long's Reply Brief. See United

States v. Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995), cert.

denied, 116 S. Ct. 1449 (1996). The only serious psychological

need referred to in Long's amended complaint, and the alleged

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Thus, the failure to treat a medical condition does not constitute

punishment within the meaning of the Eighth Amendment unless prison

officials knew that the condition created an excessive risk to the inmate's

health and then failed to act on that knowledge. Moreover, nothing in the

Eighth Amendment prevents prison doctors from exercising their independent

medical judgment. White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988).

Prisoners do not have a constitutional right to any particular type of

treatment. See id. at 327-28. Prison officials do not violate the Eighth

Amendment when, in the exercise of their professional judgment, they refuse

to implement a prisoner's requested course of treatment. Kayser v.

Caspari, 16 F.3d 280, 281 (8th Cir. 1994); Taylor v. Turner, 884 F.2d 1088,

1090 (8th Cir. 1989).

The record indicates that Dr. Loeffelholz and other members of the

prison medical staff were aware of Long's psychological problems. The

record, however, does not show any deliberate indifference on the part of

the prison officials. Long's expert in this case, Dr. Bockting,

recommended an initial course of treatment that consisted of psychotherapy

and tranquilizers. Dr. Loeffelholz did not reject psychotherapy, only the

use of tranquilizers. In fact, the record is full of evidence of the

attempts of the prison medical staff to evaluate Long's psychological

problems and Long's refusal to cooperate. In these circumstances, Long has

failed to prove that Dr. Loeffelholz was deliberately indifferent to

4

Long's gender-identity disorder, the only serious medical need alleged in

this case.5
serious medical need on which the case was tried, is his genderidentity disorder.

 ISP employs three full-time psychologists. The psychologists 6

may refer a prisoner to the prison system's 46-bed licensed

psychiatric hospital or to outside facilities and specialists for

further evaluation and treatment.

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To the extent that Long's claim is based on the prison officials'

failure to provide tranquilizers, it fails because it is merely a dispute

over the course of treatment. The prison officials' decision not to treat

Long with tranquilizers is "a classic example of a matter for medical

judgment" that does not rise to the level of cruel and unusual punishment.

See Gamble, 429 U.S. at 107. To the extent that Long's claim is based on

the prison officials' failure to provide psychotherapy, it fails because

Long consistently has refused psychological help. It is perhaps possible

that Long would benefit from some form of therapy. Long, however, has

resisted the attempts of Iowa prison officials to provide psychological

evaluation, treatment, and therapy over the past twenty years. Even Dr.

Bockting noted that "Long's profile may be `highly resistant to

psychological treatment.'" Long, 877 F. Supp. at 1362. We reject Long's

contention that the Eighth Amendment requires the Iowa Department of

Corrections to provide Long with a "sensitive" psychotherapist trained in

gender-identity issues. Appellant's Brief at 14, 15. The record shows

that the ISP medical staff is competent to diagnose inmates' medical

problems and to order treatment or further evaluation by other medical

professionals.6

The District Court correctly stated that "[i]n essence, Long demands

the privilege of cross dressing so that he can exist in the prison on his

own terms, rather than in conformity with prison regulations." Long, 877

F. Supp. at 1366. Having no apparent
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interest in overcoming his gender-identity disorder, Long has frustrated

the attempts of prison doctors to treat that disorder by his consistent

refusal of psychological evaluation over the past twenty years. In these

circumstances, the District Court unquestionably was correct when it held

that Long failed to prove that the defendant prison officials have been

deliberately indifferent to his gender-identity disorder.

III.

For the reasons stated above, the judgment of the District Court is

affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.