Robbin Amanda Bayse v. Ted Philbin

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11299

____________________

ROBBIN AMANDA BAYSE,

a.k.a. Robert Bayse,

Plaintiff-Appellee,

versus

TIMOTHY WARD,

Commissioner, et al.,

Defendants,

TED PHILBIN,

Warden,

MS. SHELTON,

Deputy Warden of Care and Treatment,

MS. HARVEY,

Deputy Warden of Security,

Defendants-Appellants.

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2 Opinion of the Court 24-11299

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 1:22-cv-00024-JRH-BKE

____________________

Before WILLIAM PRYOR, Chief Judge, and LUCK and BRASHER, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether qualified immun-

ity shields state prison officials from a lawsuit alleging that their

denial of a transgender prisoner’s request to grow long hair and

wear makeup, earrings, and nail polish violated the prisoner’s right

to be free from cruel and unusual punishment. See U.S. CONST.

amend. VIII. Robert Bayse, an inmate at a Georgia prison for male

convicts, suffers from gender dysphoria and borderline personality

disorder and receives cross-sex hormone therapy and mental-

health counseling at that prison. At another prison, Bayse was also

allowed to follow female grooming and cosmetic standards. But

Bayse’s current treatment plan does not prescribe those social tran-

sitioning accommodations. Bayse sued several prison officials after

they denied these accommodations. See 42 U.S.C. § 1983. The dis-

trict court denied the officials’ motion for summary judgment

based on qualified immunity. We vacate and remand with instruc-

tions to grant the officials qualified immunity because they did not

violate the Eighth Amendment.

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I. BACKGROUND

Robert Bayse is a prisoner who identifies as a transgender

woman named Robbin. Bayse is serving two concurrent life sen-

tences after being convicted of rape, aggravated sodomy, and child

molestation in 1998. While in custody, Bayse was diagnosed with

gender dysphoria and has received several forms of treatment for

this condition. Bayse meets with an endocrinologist every three to

six months. Bayse takes a daily testosterone suppressant and an

every-other-week estrogen supplement. Bayse also receives men-

tal-health counseling for both gender dysphoria and borderline per-

sonality disorder.

In October 2019, Georgia State Prison instituted a compre-

hensive treatment plan for Bayse. The plan listed gender dysphoria

as Bayse’s “[p]rincipal [d]iagnosis” and borderline personality dis-

order as an “[o]ther [d]iagnos[i]s.” It outlined an “[i]ntervention

[s]trategy” that involved “continu[ing] to utilize hormone therapy

to affirm [Bayse’s] female identity” and “affirm[ing] [Bayse’s] gen-

der through utilizing she/her/hers pronouns and female titles.” It

also allowed Bayse to “continue to wear female undergarments”;

“follow grooming and cosmetic standards consistent with those of

. . . women incarcerated by the Georgia Department of Correc-

tions (including make up, earrings, nail polish, and hair length)”;

and “participate in weekly . . . community meetings [and] twice

monthly individual therapy sessions.”

In January 2020, Bayse was transferred to Augusta State

Medical Prison where Bayse continued to take hormones and

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receive mental-health counseling. But no medical professional at

Augusta State Medical Prison ever prescribed the social transition-

ing accommodations to allow Bayse to follow female grooming

and cosmetic standards. Instead, prison officials repeatedly told

Bayse that these accommodations violated Department of Correc-

tions policy.

At some point in 2020, medical professionals at Augusta

State Medical Prison gave Bayse a new comprehensive treatment

plan. The plan listed borderline personality disorder as Bayse’s

“[p]rincipal [d]iagnosis” and gender dysphoria as an “[o]ther [d]iag-

nos[i]s.” It outlined an “[i]ntervention [s]trategy” that involved

learning “coping skills to decrease depressive episodes,” “meet[ing]

with [a] mental health counselor [once] a month . . . for individual

counseling,” “meet[ing] [twice] per week for suicide precautions,”

and “see[ing] psychiatry every 60 days.” The plan did not include

any social transitioning accommodations that permitted Bayse to

adhere to female grooming and cosmetic standards. Bayse contin-

ued to receive cross-sex hormone therapy even though the plan did

not mention that form of treatment.

In April or May 2020, Bayse briefly met with Warden Ted

Philbin. Bayse showed Warden Philbin the treatment plan from

Georgia State Prison and complained that prison officials were tell-

ing Bayse that the social transitioning accommodations violated

Department of Corrections policy. Warden Philbin told Bayse that

he would investigate the issue.

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The dispute over the social transitioning accommodations

escalated. On June 8, 2020, Bayse filed a grievance against Deputy

Warden of Security Tamika Harvey for “yell[ing]” at Bayse to

“[g]et a hair cut” despite knowing of Bayse’s gender dysphoria.

Mental-Health Director Donna Young met with Bayse to discuss

this complaint and explained that Department of Corrections

Standard Operating Procedure 507.04.68 states, “If a diagnosis of

Gender Dysphoria is reached, a treatment plan will be developed

that promotes the physical and mental health of the patient. The

development of the treatment plan is not solely dependent on ser-

vices provided or the offender’s life experiences prior to incarcera-

tion.” Bayse stormed out of Young’s office saying, “[Y]ou better not

mess with my fucking hair.”

On June 12, Bayse met with Warden Philbin, Deputy War-

den Harvey, Deputy Warden of Care and Treatment Ruthie Shel-

ton, Young, and Mental-Health Counselor Minnie Davis. Bayse tes-

tified that Davis explained that Bayse’s “treatment plan had been

changed” such that Bayse “c[ould]n’t wear . . . makeup, . . . ear-

rings, . . . [or] nail polish, and . . . had to cut [Bayse’s] hair.” Warden

Philbin told Bayse that the treatment plan from Georgia State

Prison violated Department of Corrections policy. And Deputy

Warden Harvey told Bayse that Bayse would have to “cut [Bayse’s]

hair, . . . [and] take off [Bayse’s] makeup, nail polish, and . . . ear-

rings.” Bayse later alleged that Warden Philbin also stated, “[Bayse]

was not born a female, that [Bayse] was born with a penis and that

if [Bayse] was a female, then [Bayse] would not be in a male

prison,” and that Deputy Warden Harvey said, “Bayse, you have a

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dick between your legs. You’re a male and not a female.” Warden

Philbin denied saying that the treatment plan from Georgia State

Prison was against prison policy or anything about Bayse being

born male, and Deputy Warden Harvey denied making the state-

ment about Bayse being a male. Young’s notes from the meeting

described Bayse as “loud and disrespectful.”

On June 24, Bayse met with a psychologist about Bayse’s

“emotional distress due to circumstances regarding gender dyspho-

ria.” The psychologist recorded that Bayse asserted a “‘right’ to be

treated as a female” and “displayed affective instability and irrita-

bility.” And when she tried to prepare Bayse “for the inevitable

event of getting a haircut,” Bayse “walk[ed] out.” The prison con-

tinued to provide mental-health counseling in the ensuing months,

but Bayse often refused to cooperate.

In March 2021, Deputy Warden Harvey instructed Captain

Ramondo Gaines that Bayse needed a haircut to comply with the

prison’s standard operating procedures. Captain Gaines enlisted

Officers Jason Smith and Cordero Campbell to assist. Bayse testi-

fied that the officers held Bayse down while another inmate cut

Bayse’s hair. Captain Gaines and Officer Smith denied that Bayse

was held down with any force. But the contemporaneous incident

report checked the box that “[h]ands-[o]n” force was used. After

the haircut, Officers Smith and Campbell escorted Bayse to the cri-

sis stabilization unit, where Bayse stayed for two days. Within

three days of being released from this supervision, Bayse attempted

self-castration.

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Bayse sued several prison officials. See 42 U.S.C. § 1983.

Bayse’s pro se complaint alleged that the officials’ refusal to grant

Bayse social transitioning accommodations constituted deliberate

indifference in violation of the Eighth Amendment. See U.S.

CONST. amend. VIII. Bayse named four groups of officials as de-

fendants: supervisory officials with statewide positions and war-

dens, officers, and mental-health providers at Augusta State Medi-

cal Prison. After an initial screening, the district court dismissed

Bayse’s claims against the supervisory officials.

The wardens—Warden Philbin, Deputy Warden Shelton,

and Deputy Warden Harvey—and the officers—Captain Gaines

and Officer Smith—moved to dismiss Bayse’s claims against them

on the grounds of sovereign immunity and failure to exhaust ad-

ministrative remedies. The mental-health providers—Young, Da-

vis, and Psychologist Paul Clements—moved to dismiss the claims

against them on the grounds of failure to exhaust administrative

remedies and failure to state a claim. The district court granted the

wardens and officers’ motion as to the official-capacity claims for

monetary relief. But it denied the motions as to the rest of the

claims against the wardens, officers, and mental-health providers.

The remaining parties moved for summary judgment. Bayse

argued that the wardens, officers, and mental-health providers

were liable under section 1983 because they failed to provide ade-

quate medical care for Bayse’s gender dysphoria, including by not

adhering to the standards of care established by the World Profes-

sional Association for Transgender Health. The mental-health

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providers contended that they were not liable because they had no

authority to override the prison’s standard operating procedures

for hair length and cosmetics and they provided adequate medical

care for Bayse’s gender dysphoria. And they attached declarations

from Clements and Davis stating that in their “professional opin-

ion[s] . . . , the[] female grooming and cosmetic accommodations

would not be appropriate or clinically indicated for . . . Bayse and

would not address the primary diagnosis of Borderline Personality

Disorder.” The wardens and officers argued that they were

shielded by qualified immunity and that Bayse’s deliberate-indiffer-

ence claims failed because they were not involved in any medical

decisions and Bayse received other treatment for gender dysphoria.

A magistrate judge issued a report and recommendation

that recommended denying summary judgment to all parties ex-

cept for the officers who did not participate in the denial of any

treatment. He recommended denying summary judgment to

Bayse because Bayse did not provide a statement of undisputed ma-

terial facts, as required by the local rules, and because “reasonable

jurors could disagree concerning whether [the wardens and men-

tal-health providers] . . . acted with deliberate indifference.” He

found that “[Bayse] has failed to submit any evidence of medical

necessity” and explained that neither Bayse’s previous treatment

plan nor the World Professional Association for Transgender

Health’s standards of care “constitute[d] evidence of medical neces-

sity.”

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The magistrate judge also recommended denying summary

judgment to the wardens and mental-health providers. He rejected

their interpretation of Department of Corrections Standard Oper-

ating Procedure 507 to be a blanket ban on social transitioning ac-

commodations as “incorrect” and “pretextual.” He concluded that

“reasonable jurors could find [that they] failed to establish [that]

social transitioning accommodations were not medically neces-

sary.” He explained that Clements’s and Davis’s declarations stat-

ing that Bayse’s requested accommodations were not clinically in-

dicated were insufficient because they were “rife with ambiguity”

and based on the false premise that granting such an exemption

conflicted with prison policy. And he rejected the wardens’ argu-

ment that there was no constitutional violation because Bayse re-

ceived other treatment for gender dysphoria.

The magistrate judge also recommended denying the war-

dens qualified immunity. He concluded that it was clearly estab-

lished that they could not deny medically necessary social transi-

tioning accommodations for Bayse’s gender dysphoria. Although

the magistrate judge acknowledged that “the law can be ‘clearly

established’ for qualified immunity purposes only by decisions of

the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the

highest court of the state where the case arose,” Jenkins ex rel. Hall

v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997)

(en banc) (citation omitted), he relied on an unpublished circuit de-

cision and a district court decision to conclude that the wardens

had “fair warning that denial, discontinuation, or interference with

medically necessary treatment for gender dysphoria constituted

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deliberate indifference.” And he distinguished our published deci-

sion in Keohane v. Florida Department of Corrections Secretary, 952 F.3d

1257 (11th Cir. 2020), as being “based on the plaintiff’s failure to

establish medical necessity and the defendant’s proof of an unam-

biguous and enforceable application of prison policy.”

The mental-health providers and wardens objected to the

report and recommendation. The mental-health providers argued

that the magistrate judge misapplied the standard for deliberate in-

difference because there was no evidence that the accommoda-

tions were medically necessary. They also disputed his framing that

Standard Operating Procedure 507 was the “starting point” for

Bayse’s treatment plan and his discrediting of Clements’s and Da-

vis’s declarations. The wardens argued that the magistrate judge

defined clearly established law at too high a level of generality.

They criticized him for relying on nonbinding decisions to decipher

clearly established law and for misinterpreting Keohane. And they

contended that he erred by placing the burden on them to prove a

lack of medical necessity.

The district court adopted the report and recommendation.

It added that the magistrate judge’s qualified-immunity analysis

was correct because “there need not exist a case requiring specific

treatment for a particular diagnosis.” The wardens appeal the de-

nial of qualified immunity.

II. STANDARDS OF REVIEW

We “review a denial of qualified immunity de novo and, on a

motion for summary judgment, view the evidence in the light most

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favorable to the nonmoving party.” Nelson v. Tompkins, 89 F.4th

1289, 1295 (11th Cir. 2024). When an interlocutory appeal of a de-

nial of qualified immunity implicates issues involving both eviden-

tiary sufficiency and whether the law was clearly established, we

have “two options regarding how to deal with [a] factual issue.”

Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996). “We may ac-

cept the district court’s findings of fact if they are adequate.” Nelson,

89 F.4th at 1296 (citation and internal quotation marks omitted).

“Or, we may conduct our own analysis of the facts in the light most

favorable to the plaintiff.” Id. (citation and internal quotation marks

omitted). Yet “we will not disturb a factual finding by the district

court if there is any record evidence to support that finding.” Stan-

ley v. City of Dalton, 219 F.3d 1280, 1287 (11th Cir. 2000).

III. DISCUSSION

“[Q]ualified immunity provides that government officials

performing discretionary functions generally are shielded from lia-

bility for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a rea-

sonable person would have known.” Miller v. Palm Beach Cnty. Sher-

iff’s Off., 129 F.4th 1329, 1332 (11th Cir. 2025) (citation and internal

quotation marks omitted). To establish qualified immunity, “[t]he

officer bears the initial burden to prove that he acted within his dis-

cretionary authority.” Dukes v. Deaton, 852 F.3d 1035, 1041 (11th

Cir. 2017). The burden then shifts to the plaintiff to establish “that

the officer[] violated the constitutional rights at issue” and “that

those rights were clearly established at the time of the alleged mis-

conduct.” King v. Pridmore, 961 F.3d 1135, 1142 (11th Cir. 2020).

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The Eighth Amendment prohibits the “inflict[ion]” of “cruel

and unusual punishments,” U.S. CONST. amend. VIII, and the Four-

teenth Amendment bars state officials from violating the Eighth

Amendment, id. amend. XIV; Robinson v. California, 370 U.S. 660,

666–67 (1962). Because prisoners rely on prison officials to treat

their medical needs, the Eighth Amendment requires officials “to

provide minimally adequate medical care to those whom they are

punishing by incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504

(11th Cir. 1991). But this care need not “be perfect, the best obtain-

able, or even very good.” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d

1263, 1271 (11th Cir. 2020) (citation and internal quotation marks

omitted).

Prison officials violate the prohibition on cruel and unusual

punishments when they act with “deliberate indifference to serious

medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104

(1976). “A deliberate-indifference claim entails both an objective

and a subjective component.” Keohane, 952 F.3d at 1266. As to the

objective component, an inmate must establish, “as a threshold

matter, that he suffered a deprivation that was, objectively, suffi-

ciently serious.’’ Wade v. McDade, 106 F.4th 1251, 1262 (11th Cir.

2024) (en banc) (citation and internal quotation marks omitted).

And as to the subjective component, an inmate must prove that

“the defendant acted with subjective recklessness as used in the

criminal law.” Id. (citation and internal quotation marks omitted).

The “deliberate indifference . . . standard . . . is a high stand-

ard.” West v. Tillman, 496 F.3d 1321, 1333 (11th Cir. 2007); see also

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Johnson v. Lewis, 83 F.4th 1319, 1327 (11th Cir. 2023) (“Deliberate

indifference . . . is a ‘steep hill’ for a plaintiff to climb.” (citation

omitted)); Keohane, 952 F.3d at 1277 (acknowledging the “low de-

liberate-indifference bar” that prison officials must clear); Hoffer,

973 F.3d at 1271 (reiterating “the stringency of the deliberate-indif-

ference standard”). “[P]risoners aren’t constitutionally entitled to

their preferred treatment plan . . . .” Keohane, 952 F.3d at 1277. A

denial of medical care constitutes deliberate indifference “only

when it is so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental fairness.”

Harris, 941 F.2d at 1505 (citation and internal quotation marks

omitted).

At summary judgment, the moving party’s burden “de-

pend[s] on which party would bear the burden of proof on a dis-

puted issue at trial.” Poer v. Jefferson Cnty. Comm’n, 100 F.4th 1325,

1335 (11th Cir. 2024). The moving party always “bears the initial

responsibility of informing the district court of the basis for its mo-

tion, and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of

a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (internal quotation marks omitted). “Where the

nonmoving party bears the burden of proof at trial, the moving

party may discharge this ‘initial responsibility’ by showing that

there is an absence of evidence to support the nonmoving party’s

case . . . .” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th

Cir. 2004) (citation omitted). If the moving party makes that

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showing, “the nonmoving party bearing the ultimate burden of

proof at trial must come forward with evidence sufficient to with-

stand a directed verdict motion.” Id.

The district court ruled that “reasonable jurors could find

[that the wardens and mental-health providers] failed to establish

[that] social transitioning accommodations were not medically

necessary.” But the wardens argue that the district court erred be-

cause it was Bayse’s burden to prove that the accommodations

were medically necessary. And they contend that, at worst, the ex-

istence of a dispute over whether the accommodations were med-

ically necessary defeats a claim for deliberate indifference under the

Eighth Amendment. Bayse responds that the record supports the

ruling that there is a genuine dispute of fact about whether the ac-

commodations were medically necessary.

Our decision in Hoffer v. Secretary, Florida Department of Cor-

rections squarely resolves the burden issue in favor of the wardens.

973 F.3d 1263. There, we reversed a district court for “impermissi-

bly flipp[ing] the burden of proof” for a deliberate-indifference

claim. Id. at 1274. We explained that “[o]ur precedent is clear that

an inmate bears the burden of proving all aspects of his Eighth

Amendment claim.” Id. “So it wasn’t the [official]’s burden to

demonstrate that [a certain] treatment . . . isn’t medically neces-

sary; it was the plaintiffs’ burden to prove that such treatment is

necessary.” Id.; see also Celotex, 477 U.S. at 325 (explaining that “the

burden is [not] on the party moving for summary judgment to pro-

duce evidence showing the absence of a genuine issue of material

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fact”). The district court was wrong to deny the wardens summary

judgment on the ground that they failed to establish that the social

transitioning accommodations were not medically necessary. Un-

der Hoffer, the burden was on Bayse to prove medical necessity.

And because, as the district court acknowledged, Bayse “failed to

submit any evidence of medical necessity,” Bayse cannot establish

a constitutional violation.

Bayse resorts to two ancillary pieces of evidence to argue

that the social transitioning accommodations were medically nec-

essary: Bayse’s previous treatment plan from Georgia State Prison

and the standards of care promulgated by the World Professional

Association for Transgender Health. But this evidence is insuffi-

cient to satisfy Bayse’s burden—even as the nonmovant on sum-

mary judgment. See Celotex, 477 U.S. at 325 (“[T]he burden on the

moving party may be discharged by ‘showing’—that is, pointing

out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.”).

The district court correctly concluded that these sources

“do[] not constitute evidence of medical necessity.” The social tran-

sitioning accommodations can be “psychologically pleasing” with-

out being “strictly medically necessary.” Keohane, 952 F.3d at 1274

(citation and internal quotation marks omitted). Bayse offers no ev-

idence that considerations of medical necessity motivated these ac-

commodations, so the previous treatment plan lacks probative

value. See Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d 1164,

1170 (11th Cir. 2018) (“Speculation does not create a genuine issue

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16 Opinion of the Court 24-11299

of fact; instead, it creates a false issue, the demolition of which is a

primary goal of summary judgment.” (citation and internal quota-

tion marks omitted)). And the standards of care from the Associa-

tion—by their own terms—are “[f]lexible [c]linical [g]uidelines”

that list “[c]hanges in gender expression” as a mere “option[]” for

treatment. These general standards are far too equivocal to be evi-

dence that social transitioning accommodations were medically

necessary for Bayse.

The district court also erred in its analysis of whether the

wardens violated clearly established law. “In this circuit, the law

can be ‘clearly established’ for qualified immunity purposes only by

decisions of the U.S. Supreme Court, Eleventh Circuit Court of Ap-

peals, or the highest court of the state where the case arose.” Jen-

kins, 115 F.3d at 826 n.4 (emphasis added) (citation omitted).

“[U]npublished case law . . . and [decisions] from the district courts

[are] unavailing . . . because only binding precedent can clearly es-

tablish a right for qualified immunity purposes.” Gilmore v. Hodges,

738 F.3d 266, 279 (11th Cir. 2013); see also J W ex rel. Williams v.

Birmingham Bd. of Educ., 904 F.3d 1248, 1260 n.1 (11th Cir. 2018)

(“Unpublished cases . . . do not serve as binding precedent and can-

not be relied upon to define clearly established law.” (citation omit-

ted)). And “dicta cannot clearly establish the law for qualified im-

munity purposes.” Jones v. Cannon, 174 F.3d 1271, 1288 n.11 (11th

Cir. 1999).

Despite our clear command not to rely on nonprecedential

decisions, the district court relied on an unpublished circuit

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decision and a district court decision to support its ruling that the

wardens violated clearly established law. See Kothmann v. Rosario,

558 F. App’x 907, 912 (11th Cir. 2014); Diamond v. Owens, 131 F.

Supp. 3d 1346, 1375 (M.D. Ga. 2015). This reliance “transgressed

the fundamental rule that courts of this circuit are bound by the

precedent of this circuit.” In re Hubbard, 803 F.3d 1298, 1309 (11th

Cir. 2015). Moreover, the wardens explained in their objections to

the magistrate judge’s report and recommendation that neither Ko-

thmann nor Diamond could “provide a basis for denying [them]

qualified immunity.” Our published decision in Keohane should have

made it clear that the wardens did not violate clearly established

law. Moving forward, district courts would be wise not to make

the same mistake.

IV. CONCLUSION

We VACATE and REMAND with instructions to grant

qualified immunity to the wardens.