___________ 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 Stat e Penitentiary (ISP) fo r 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 indiffere nce to his gender-identity disorder. Based on t he evidence introduced during a one-day bench trial, the District

### The Honorable Celeste F. Bremer, United States Magistrat e 1 

### Judge for the Southern District of Iowa. The case was triedbefore Magistrate Judge Bremer by consent of the parties pursuant to 2 8 U.S.C. § 636(c) (1994).
-2- Court held that (1) the extent of Long's gender-identity disor der 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 dam ages. 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.

Lon g began his stay at ISP in 1964. He arrived in full drag, bu t initia lly prison officials refused to let him wear women's clothes

. Following a hunger strike that began shortly after his arrival, Long was all owed to wear women's clothes and make-up on a regular basis. Thi s privilege, however, w as 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. IS P officials have denied his request each time. He also has requested hormon e therapy and sex-chang e surgery. Aside from these requests, however, Long has not sought, nor have prison health services employees ordered, an y tre atment for a gender-identity disorder. In fact, Long has repeatedl y refused to cooperate with prison psychologists and psychiatrists over the past twenty years. See Long , 877 F. Supp. at 1362; see also Program Revie w 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

### -3-

F. Supp. a t 1362. During his 1991 psychological evaluation, all Lon g requested was "what he deserves": a transfer from ISP to a less structure d setting. Id. The psychologist concluded that "[a]t this point in tim e th ere are no psychological or psychiatric issues that need to b e address ed." Psychological Evaluation (Jan. 30, 1991). In 1992, Lon g "indic ated no mental health issues or problems," and the psychologis t concluded that there were no psychological issues that needed to b e addr essed. Psychological Evaluation (Jan. 29, 1992). In 1993, Lon g refuse d to participate in a psychological interview and "no meaningfu l psy chological report" was submitted. Long , 877 F. Supp. at 1362. I n 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 Iow a State Medical Facility (ISMF). ISMF Referral (Feb. 12, 1982). His reques t was granted, and he w as transferred to ISMF. Later that same year he was transferred at his own request to a Missouri max imum security prison where he was allowed to wear women's clothing at all t imes. In 1986 he returned to ISP. His complaints to a member of the medical staff at that tim e "center[e d] around the fact that he will not be allowed to have th e
numero us articles of female clothing which he owns." Psychiatri c Evaluation (Feb. 15, 1986). Long, however, never has shown a continue d interest in psychiatric evaluation or treatment either for depression or his gender-identity disorder. "In 1994, Long [again] declined to b e interviewed for his a nnual psychological evaluation. Long explained that he is apprehensive about meeting with ISP staff members because they are
uns ympathetic and because he thinks it is unlikely that he will b e paroled." Long , 877 F. Supp. at 1362.

At trial, Dr. Walter O. Bockting, Ph.D., testified that Long ha s deve loped an intense gender dysphoria. His report diagnosed Long a s suffering from a gender-identity disorder not otherwise specified, a sexua l disorder not otherwise specified, and an

### -4-

anti social-personalitydisorder. Dr. Bockting concluded that Long ha s other e motional problems in addition to his gender-identity disorder , statin g that tests indicated that Long "may be demanding, rebellious , ho stile, aggressive, antisocial, impulsive, exhibitionistic, an d promiscuous." Id. Dr. Bockting suggested that these traits result from the dysfunctional family setting in which Long was raised. Id.

Several o f 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. Loeff elholz, M.D. For the most part, Dr. Loeffelholz did not disagree with Dr. Bockting's diagnoses. As the District Court noted, however, the diagnose s were in conflict on some points. See id. at 1365- 66. The main disagre ement 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-identit y disorder. Dr. Loeffe lholz testified that Long's gender-identity disorder is intermittent and generally exhibited when Long is under stress, while his "p rimary psychological problem is his serious antisocial an d manipulat ive behavior." Id. at 1363. At bottom, the difference i n 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.

De spite his opinion that Long's gender-identity disorder is Long' s principal condition, Dr. Bockting admitted that he believes that Long wear s women's clothing both to express his feminine identity and for sexua l stimulation. Dr. Bockting concluded that, because Long experiences some
arous al, he suffers in part from paraphilia (a sexual attraction to a n unusual subject or ob ject) and transvestic fetishism (sexual arousal from cross-dressing). As a result, Dr. Bockting stated that Long "does not mee t the minimal requirements that would make him eli gible" for hormone therapy
or

### -5-

sex-change surgery. Id. at 1362. The experts thus agreed that Long is no t a transsexual.
In contradistinction to their general agreement on the diagnosi s, the exper ts flatly disagreed about the appropriate treatment for Long' s conditi on. Dr. Bockting recommended psychotherapy for Long's gender

id entity disorder combined with tranquilizers for the depression an d anxiety that has resu lted 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 wome n's clothes to relieve his anxiety. Dr. Loeffel holz disagreed and noted that Long has not requested treatment for his anxiety or depression nor has he fully cooperated with pris on psychologists so that the staff could properly respond to hi s anxiety or depression, let alone his gender-identity disorder.

The District Court found that Dr. Loeffelholz had refused t o 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 ac t with deliberate indifference to Long's allegedly serious medical need" and that the other defendants "were justified in relying on the opinions o f medical staff." Id.

II.

Long argu es, among other things, that the District Court erred when it held that his gender-identity disorder does not constitute a seriou s medical need and that the defendants were not

### Because we agree with the District Court's conclusion tha t 2 

### the prison officials did not act with deliberate indifference t o Long's gender-identity disorder, we need not and do not addr ess his arguments regarding the prisonofficials' entitlement to qualified immunity.
-6- del iberately indifferent to his gender-identity disorder. Furthermore , 2 Long argu es that both the District Court's findings of fact and it s conclusions of law are subject to de novo review "in light of the societal val ues underlying the relevant legal concepts." Appellant's Brief at 2 (citing Falls v. Nesbitt , 966 F.2d 375, 377 (8th Cir. 1992)). We firs t address the standard of review.

A.

In Nesb itt , we stated that "[m]ixed questions of law and fact tha t req uire the consideration of legal concepts and involve the exercise o f judgme nt about the values underlying legal principles are reviewable d e
novo ." Id. While we believe that the term "mixed question of law an d fact" is confusing and best discarded, Nesbitt cannot be read to permit th e de novo review of the factual findings of a district court. First, i n 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 a side 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 propositio n that a legal conclusion drawn from established f acts is subject to de novo review. Despite Long's invitation, we decline to subject the Distric t Cour t's findings of fact in this case to de novo review. As usual, w e review the factual fi ndings of the District Court for clear error and its legal conclusions de novo. See , e.g. , Little Ro ck School Dist. v. Pulaski County Special School Dist., #1 , Nos. 95-1481 & 95-1482, slip op. at 8 (8t h Cir. May 15, 1996); Williams v. Carter , 76 F.3d

### A psychological disorder may constitute a serious medica l 3 

### need. W hite v. Farrier , 849 F.2d 322, 325 (8th Cir. 1988). W e hav e 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 su bsequent 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.
-7- 199, 200 (8th Cir. 19 96) (per curiam); see also Ornelas v. United States , No. 95-52 57, 1996 WL 276414 at *6 (U.S. May 28, 1996) (historical fact s reviewed "only for cl ear error" but legal conclusions such as "reasonable
sus picion" and "probable cause" reviewed de novo). After reviewing th e trial transcript and the documentary evidence, we conclude that th e relevant factual findings of the District Court, as outlined above, are no t clearly erroneous.

B.
Turning to the merits of Long's lega l arguments, we conclude that he failed to prove that the prison officials acted with deliberat e 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 frominflicting such punishments, Louisiana ex rel. Francis v. Resweber , 329 U.S. 459, 463 (1947) (stating that Due Process Clause of Fourteent h Ame ndment incorporates Eighth Amendment's guarantee against cruel an d
unusua l punishment). We assume without deciding that Long's gender

identity disorder constitutes a serious medical need for the purposes of this case. 3
"A prison official exhibits deliberate indifference when the of ficial actual ly `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 c onclusion, 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 an d 5 

### de pression constitute independent serious medical needs and tha t cross-dressing is the appropriate treatment for these conditions. Reply Brief at 7. This argume nt 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 psychologica l nee d referred to in Long's amended complaint, and the allege d
-8- Thus, th e failure to treat a medical condition does not constitut e punish ment within the meaning of the Eighth Amendment unless priso n 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 ex ercising their independent medical j udgment. White v. Farrier , 849 F.2d 322, 327 (8th Cir. 1988)

. Priso ners do not have a constitutional right to any particular type o f treatment. See id. at 327-28. Prison officials do not violate the Eighth Amendment when, in the exercise of their professional judgment, they refus e 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 reco rd indicates that Dr. Loeffelholz and other members of th e prison medical staff were aware of Long's psychological problems. Th e record, however, does not show any deliberate indifference on the part of th e 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 reje ct psychotherapy, only the
use of tr anquilizers. In fact, the record is full of evidence of th e attemp ts of the prison medical staff to evaluate Long's psychologica l problems and Long's refusal to cooperate. In these circumstances, Long ha s failed t o prove that Dr. Loeffelholz was deliberately indifferent t o 4 Long's gender-identit y disorder, the only serious medical need alleged in this case. 5

### serious medical need on which the case was tried, is his gender

identity disorder. ISP employs three full-time psychologists . The psychologists 6 

### may refer a prisoner to the prison system's 46-bed license d psychiatric hospital or to outside facilities and specialists for further evaluation and treatment.
-9- To the extent that Long's claim is based on the prison officials ' failure to provide tr anquilizers, it fails because it is merely a dispute over the course of treatment. The prison offici als' decision not to treat Long with tranquilizers is "a classic example of a matter for medica l judgment" that does not rise to the level of cru el 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, ha s resist ed the attempts of Iowa prison officials to provide psychologica l evaluation, treatment, and therapy over the past twenty years. Even Dr. Bockti ng noted that "Long's profile may be `highly resistant t o psychological treatme nt.'" Long , 877 F. Supp. at 1362. We reject Long's conten tion that the Eighth Amendment requires the Iowa Department o f Corrections to provid e Long with a "sensitive" psychotherapist trained in gender-identityissues. Appellant's Brief at 14, 15. The record show s that the ISP medical staff is competent to diagnose inmates' medica l problems and to order treatment or further evaluation by other medica l professionals. 6
The District Court correctly stated that "[i]n essence, Long demands the privilege of cros s dressing so that he can exist in the prison on his own terms, rather tha n in conformity with prison regulations." Long , 877 F. Supp. at 1366. Having no apparent

### -10-

interest in overcoming his gender-identity disorder, Long has frustrated the attempts of prison doctors to treat that disorder by his consisten t refusal of psychologi cal evaluation over the past twenty years. In these circumstances, the Di strict Court unquestionably was correct when it held that Long failed to prove that the defendant prison officials have bee n deliberately indifferent to his gender-identity disorder.

III.

For the r easons stated above, the judgment of the District Court is affirmed.

A true copy.

Attest:

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