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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

BENJAMIN N. MOOTS,

Plaintiff,

vs. Case No. 4:10cv98-SPM/WCS

WALTER McNEIL, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff has filed a second amended complaint, doc. 16, which has been

reviewed as required by 28 U.S.C. § 1915A. Plaintiff's second amended complaint was

filed on April 30, 2010, although this action was initiated on March 15, 2010. Docs. 1, 2. 

Plaintiff alleges that he suffers from a condition known as "gynecomastia, an

enlargement of male breast tissue." Doc. 16, p. 4. Medical tests reveal no underlying

cause for the condition, and no cancerous tissue is present. Id. Plaintiff alleges his

condition is "physically painful, sore, tender, and prone to swelling . . . " Id., at 5. 
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1

 Plaintiff has not presented a viable claim concerning the improperly conducted

strip searches. Plaintiff has not named any person responsible for those searches, and

it is unlikely that any of the medical personnel who are named as Defendants conduct

strip searches. That responsibility would be carried out by correctional officers, not my

medical staff. 

Case No. 4:10cv98-SPM/WCS

Plaintiff alleges that he has been given nothing "more than ibuprofen" for his complaints

of pain and tenderness. Id.

Plaintiff requested additional treatment for the condition, but was told by Dr.

Torres, "there's nothing to worry about" and it is "only cosmetic." Id., at 5. Plaintiff

contends that Dr. Torres told him that the Florida Department of Corrections "does not

provide cosmetic treatment." Id. 

Plaintiff alleges that the condition has caused him to suffer from feelings of

depression and anxiety. Id. Plaintiff also contends that instead of offering him medical

treatment, Defendants segregate him from the general inmate population by placing him

in protective management due to his "observable 'female characteristics.' " Id. Plaintiff

contends he is prejudged because of his physical appearance, and subjected

to"improperly conducted strip searches,1

 in public areas which is a violation of

Department" rules, so that his condition is noticeable to staff and inmates who are

present, causing him further harassment and ridicule. Id., at 6.

Plaintiff alleges that when he reentered the Department of Corrections in June of

2006, he was diagnosed with gynecomastia. Doc. 16, p. 4. In July of 2006, Plaintiff

underwent medical tests to determine if there were any cancerous tissue present, but

no malignancies were found. Id. An "ultrasound identified 'bilateral homogeneous soft

tissue structures.' " Id. Plaintiff contends Defendant Blakenship knew of Plaintiff's

suffering when Plaintiff sent a grievance requesting mastectomy surgery to remedy his
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Case No. 4:10cv98-SPM/WCS

problem. Id., at 6. Defendant Blakenship denied Plaintiff's grievance on January 7,

2010, stating that "a mammogram was ordered and no other medical procedures can be

done until this test is completed, which Plaintiff refused at the advice of [Doctor] Torres

as 'medically unnecessary.' " Id., at 7. Plaintiff contends this denial of his grievance,

and the requirement to have a "medically unnecessary mammogram" was deliberate

indifference to Plaintiff's serious medical needs. Id. 

Plaintiff then filed an appeal in mid-January, 2010, to Defendant McNeil and

Defendant Rahangdale, the Director of Health Services. Id., at 7. Defendants had thirty

days to answer the appeal, and Plaintiff claims they "intentionally declined to do so." Id.

Plaintiff further contends that Defendant Rahangdale and McNeil are responsible for the

Department's policy prohibiting "cosmetic procedures." Id., at 7-8. Plaintiff alleges the

refusal to respond to his grievance by mid-March, 2010, shows they are deliberately

indifference to his serious medical needs. Id., at 8.

On February 21, 2010, Plaintiff's mother sent an email to Defendant Rahangdale

complaining about medical care offered to Plaintiff. Id., at 8. The email was "delegated

to Defendant Baker for Response." Id. Defendant Baker replied to the email message

and advised that Plaintiff was being given proper medical care. Id., at 8-9. Plaintiff

contends, however, that Defendant Baker was aware that Plaintiff needed to have a

double mastectomy but was refused, and Defendant Baker refused to "make any

additional treatment available evidencing deliberate indifference . . . ." Id., at 9. 

Plaintiff also alleged that on March 22, 2010, he met with Defendants Baker and

Blankenship and asked about further treatment. Id., at 9. Plaintiff was told there was

no treatment they could offer him. Id. Plaintiff asked about receiving a particular drug,
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2

 Tamoxifen is a nonsteroidal oral antiestrogen used as the citrate salt in the

treatment and prophylaxis of breast cancer. DORLAND'S MEDICAL DICTIONARY FOR

HEALTHCARE CONSUMERS, available at: http://www.mercksource.com (Medical

Dictionary link).

Case No. 4:10cv98-SPM/WCS

"Tamixofen",2 to reduce irritation and size of the tissue, but was told "The Governor told

me to cut 23 million dollars from my budget, I can't treat your condition." Id. 

Analysis

Deliberate indifference to the serious medical needs of sentenced prisoners

violates the Eighth Amendment's prohibition of cruel and unusual punishment. Estelle

v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). A "'serious' medical

need is one that has been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize the necessity for a doctor's

attention." Hill v. Dekalb Regional Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994),

abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153

L.Ed.2d 666 (2002), quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D. N.H.

1977). Alternatively, "a serious medical need is determined by whether a delay in

treating the need worsens the condition" or "if left unattended, poses a substantial risk

of serious harm." Mann v. Taser Intern., Inc., 588 F.3d 1291, 1307 (11th Cir. 2009),

citing Hill, 40 F.3d at 1188-89, and Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.

2003); see also Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d

156 (1992) ("Because society does not expect that prisoners will have unqualified

access to health care, deliberate indifference to medical needs amounts to an Eighth

Amendment violation only if those needs are ‘serious’ ").
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The concept of deliberate indifference entails something more than negligence,

but is satisfied by something less than actions undertaken with an intent to cause harm. 

Farmer v. Brennan, 114 S. Ct. 1970, 1978 (1994). Subjective recklessness, as defined

in criminal law, is the standard which must be shown for an official's actions to rise to

the level of deliberate indifference. Id. Deliberate indifference has been described as a

culpable state of mind of the defendant to unnecessarily and wantonly inflict pain or

harm to a prisoner by depriving him of a basic human need. Wilson v. Seiter, 501 U.S.

294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). 

Combining the standards from Farmer and Estelle, the Eleventh Circuit has

clarified that, ultimately, there are four requirements to bringing an Eighth Amendment

claim for the denial of medical care: "an objectively serious need, an objectively

insufficient response to that need, subjective awareness of facts signaling the need, and

an actual inference of required action from those facts." Taylor v. Adams, 221 F.3d

1254 (11th Cir. 2000), cert. denied 531 U.S. 1077 (2001); Farrow v. West, 320 F.3d

1235, 1243 (11th Cir. 2003). Put another way, once a prisoner shows that he has a

serious medical need, "the prisoner must prove three facts: (1) subjective knowledge of

a risk of serious harm; (2) disregard of that risk; and (3) by conduct that is more than

mere negligence." Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004), citing

McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999).

Medical malpractice does not constitute deliberate indifference. Estelle, 429 U.S.

at 106, 97 S. Ct. at 292. "Nor does a simple difference in medical opinion between the

prison's medical staff and the inmate as to the latter's diagnosis or course of treatment

support a claim of cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495,
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Case No. 4:10cv98-SPM/WCS

1505 (11th Cir. 1991), citing Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). 

See also Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993). For example, in

Estelle, the prisoner received treatment for his back injury (bed rest, muscle relaxants

and pain relievers), but complained that more should have been done in the way of

diagnosis, such as an X-ray or other tests. The Court rejected this as a basis for

liability: 

But the question whether an X-ray--or additional diagnostic techniques or

forms of treatment--is indicated is a classic example of a matter for

medical judgment. A medical decision not to order an X-ray, or like

measures, does not represent cruel and unusual punishment.

429 U.S. at 107, 97 S. Ct. at 293. A prisoner's medical need may be found to be

serious if the failure to treat the condition could result in significant further injury or an

unnecessary infliction of pain. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). 

However, routine discomfort does not qualify as a serious medical need. Id. Further,

when an inmate has received some medical attention or care and the dispute involves

the adequacy of the care, federal courts are reluctant to second guess medical

judgments and find an eighth amendment violation. Harris v. Thigpen, 941 F.2d 1495,

1507 (11th Cir. 1991).

There have been numerous cases which have addressed the related problem of

whether prisons must provide surgery or hormone therapy for such conditions as

gender identity disorder (GID), gender dysphoria, or transsexualism. The cases are

useful because these medical conditions create much the same sort of problems for a

prisoner as the condition suffered by Plaintiff. 
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In De'Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003), plaintiff De'Lonta, who

was born as a man, suffered from GID, "a disorder characterized by a feeling of being

trapped in a body of the wrong gender." De'Lonta, 330 F.3d at 631. De'lonta had

undergone various procedures to make herself appear more feminine, including

dermabrasions, a chemical face peel, and estrogen treatments "to slow hair growth,

soften her skin, and develop breasts and other female characteristics." Id., at 631-632. 

Since 1983 when De'lonta entered the custody of the Virginia Department of

Corrections, doctors had diagnosed her as suffering from GID, and in 1993, De'lonta

began receiving estrogen therapy for the disorder while in Greensville Correctional

Center. Id., at 632. When the treatments were abruptly discontinued two years later

pursuant to a new policy, she "developed an uncontrollable urge to mutilate her

genitals." Id. The Fourth Circuit held that the district court should not have dismissed

her claims, finding that "protection against continued self-mutilation constitutes a serious

medical need to which prison officials may not be deliberately indifferent." Id., at 634. 

The court distinguished Maggert v. Hanks, 131 F.3d 670 (7th Cir.1997) (holding that

prisoner was not constitutionally entitled to curative treatment for gender dysphoria) as

a case where there was no indication that prisoner was at risk for self-mutilation or other

serious bodily harm. The court also held that it was wrong to dismiss the claim

concerning discontinuation of the hormone therapy as simply a disagreement with the

judgment of prison's doctors. The court stated that because the "limited record" existing

showed the discontinuation was due to a policy not to provide hormone therapy, it

supported "the inference that Appellees' refusal to provide hormone treatment to
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De'lonta was based solely on the Policy rather than on a medical judgment concerning

De'lonta's specific circumstances." Id., at 634-635.

In Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997), a psychiatrist refused to

prescribe estrogen for the prisoner, who allegedly suffered from gender dysphoria,

instead recommending that he continue with counseling with the prison psychologist. 

Maggert, 131 F.3d at 670 -71. Acknowledging that gender dysphoria is a serious

psychiatric disorder, the Court considered that treatments "necessary to 'cure' a

prisoner's gender dysphoria . . . are protracted and expensive." Id., at 671. The court

further held: 

A prison is not required by the Eighth Amendment to give a prisoner medical care

that is as good as he would receive if he were a free person, let alone an affluent

free person. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 

He is entitled only to minimum care. Hudson v. McMillian, 503 U.S. 1, 9, 112

S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992); Wellman v. Faulkner, 715 F.2d 269,

271 (7th Cir. 1983); Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991);

Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988).

Maggert v. Hanks, 131 F.3d at 671-72. The court noted that in most cases, medicare

and standard health care plans do not pay for sex-change operations; rather, one

desiring to have a sex change operation for gender identity disorder would be required

to pay the costs of treatment out of his own pocked. Id., at 672. The court said: 

Withholding from a prisoner an esoteric medical treatment that only the wealthy

can afford does not strike us as a form of cruel and unusual punishment. It is not

unusual; and we cannot see what is cruel about refusing a benefit to a person

who could not have obtained the benefit if he had refrained from committing

crimes. We do not want transsexuals committing crimes because it is the only

route to obtaining a cure.

Maggert, 131 F.3d at 672. Finally, the court concluded that gender dysphoria is not "a

severe enough condition to warrant expensive treatment at the expense of others." Id. 
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3

 Kosilek v. Maloney, supra, was a case challenging a Massachusetts DOC

policy aimed to maintain a transsexual inmate in the same condition he was in when

incarcerated. 221 F.Supp.a2d at 159-160. The blanket policy categorically excludes

the possibility of sex reassignment surgery. Id., at 160.

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In a more recent gender identity disorder case, the District Court of

Massachusetts also noted that some gender identity disorders are not so severe or

profound as to require sex reassignment surgery, hormone therapy, or even

psychotherapy. Kosilek v. Maloney, 221 F.Supp.2d 156, 184 (D. Mass., 2002),3 quoting

Farmer v. Moritsugu, 163 F.3d 610, 615 (D.C. Cir. 1998) (finding that the B.O.P. policy

allowing for three treatment options for transsexualism was constitutional) and stating

"merely because someone is a transsexual, it does not inexorably follow that he or she

needs psychotherapy" or other forms of treatment. The court pointed out that if some

form of treatment has been provided, prison officials are "not constitutionally required to

provide . . . pre-operative hormone treatment and a sex change operation." Kosilek,

221 F.Supp.2d at 185, citing Meriwether v. Faulkner, 821 F.2d 408, 413-14 (7th Cir.

1987); see also Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986); Lamb v.

Maschner, 633 F.Supp. 351, 353-354 (D. Kan. 1986). Likewise, other courts of appeal

have held that denial of hormone therapy to treat transsexualism is not deliberate

indifference. Praylor v. Texas Dept. of Criminal Justice, 430 F.3d 1208, 1209 (5th Cir.

2005); citing to White v. Farrier, 849 F.2d 322 (8th Cir. 1988) (acknowledging that

transsexualism is a serious medical condition, but holding that declining to provide

hormone therapy did not constitute deliberate indifference to that medical need). 

In this case, Plaintiff suffers from gynecomastia. Plaintiff's condition has not

been "diagnosed by a physician as mandating treatment or one that is so obvious that
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even a lay person would easily recognize the necessity for a doctor's attention." Hill, 40

F.3d at 1187. Indeed, the physicians do not recommend surgery. Plaintiff does not

allege a condition that even a lay person would recognize would cause significant pain if

not treated. While Plaintiff has alleged that he is subjected to psychologically

challenging problems, he has not shown that he has a condition as severe as gender

identity disorder or transsexualism. Further, even in the even more difficult case of

protecting the safety of a transsexual prisoner, safety concerns may be provided for

without requiring the more drastic remedy of surgery. Kosilek, 221 F.Supp.2d at 194,

citing Farmer, 511 U.S. at 830-31, 114 S.Ct. 1970 (case in which a transsexual prisoner

alleged deliberate indifference to his safety after he was beaten and raped while in the

general population at a federal penitentiary). Thus, Plaintiff has failed to state a claim

under the Eighth Amendment.

Accordingly, it is RECOMMENDED that Plaintiff's second amended complaint,

doc. 16, be DISMISSED for failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and

recommendation direct the Clerk of Court to note on the docket that this cause was

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IN CHAMBERS at Tallahassee, Florida, on May 11, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE
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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.