Farmer, Dee v. Moritsugu, Kenneth

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 1998 Decided December 18, 1998

No. 98-5087

Dee Farmer,

Appellee

v.

Kenneth Moritsugu,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 92cv01690)

Stacy M. Ludwig, Assistant U.S. Attorney, argued the

cause for appellant. With her on the briefs were Wilma A.

Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Laura K. McNally argued the cause for appellee. With

her on the brief was James J. Sandman.

Before: Edwards, Chief Judge, Williams and Randolph,

Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: This case presents the question whether the

Medical Director of the Bureau of Prisons ("BOP") can be

held personally liable under the Eighth Amendment for the

alleged failure to treat a transsexual inmate. Appellee Dee

Deidre Farmer ("Farmer"), a transsexual who has been incar-

cerated in various BOP facilities since 1986, alleges that

appellant Kenneth Moritsugu ("Moritsugu"), the BOP's Medi-

cal Director, exhibited deliberate indifference to her serious

medical needs by failing to ensure that she received treat-

ment for her condition. Moritsugu asserts qualified immuni-

ty, arguing that he adhered at all times to the BOP's con-

cededly constitutional medical policy, which invests him with

only a very limited role in decisions concerning the diagnosis

and care of individual patients in local BOP institutions. We

agree that Moritsugu was not the person to whom Farmer's

treatment requests were appropriately addressed. We also

find that Farmer failed to demonstrate a specific need for

treatment, and, therefore, that Moritsugu's response to

Farmer's demands could not have constituted deliberate indif-

ference to her medical needs. Accordingly, we reverse the

District Court's denial of qualified immunity.

I. Background

A.Farmer's Efforts to Obtain Treatment

Transsexualism is a gender identity disorder, the sufferers

of which believe that they are "cruelly imprisoned within a

body incompatible with their real gender identity." The

Merck Manual of Medical Information 418 (1997). The

disorder is commonly accompanied by a desire to change

one's anatomic sexual features to conform physically with

one's perception of self. To relieve this gender discomfort,

transsexuals may pursue some combination of hormone thera-

py, surgery, and psychological counseling. They may also

choose to live in their preferred gender role by dressing,

naming, and conducting themselves in conformity with that

gender. See id. at 418-19.

Farmer is a pre-operative male-to-female transsexual, i.e.,

she identifies herself as a woman although she is biologically

male. For several years prior to her incarceration, Farmer

lived as a woman in her dress and conduct. She also received

hormone therapy and silicone breast injections. Farmer has

never undergone sex re-assignment surgery. However, be-

fore her imprisonment, she had an unsuccessful "black mar-

ket" operation to remove her testicles, and, while in prison,

she attempted to perform self-castration.

Since at least 1991, Farmer has actively sought treatment

for her transsexualism. She has lodged administrative com-

plaints within the institutions in which she has been incarcer-

ated. She has also initiated multiple lawsuits claiming viola-

tions of her constitutional rights arising from her conditions

of imprisonment and lack of medical treatment. And, most

relevant to the instant case, she has written numerous letters

to BOP officials, including Moritsugu, to inform them that she

desired, but was not receiving, treatment for her transsexual-

ism. See Letters from Farmer to Prison Officials, reprinted

in Joint Appendix ("J.A.") 66-80. In these letters, Farmer

has claimed that, because her condition has worsened during

the course of her confinement, she is entitled to some form of

treatment. Farmer claims that her pleas for assistance

largely have gone unanswered; on this score, she points out

that she has received only intermittent counseling from the

BOP during her incarceration.

The BOP's general health care mission is to provide essen-

tial medical care, defined as care that is either medically

mandatory or presently medically necessary in the clinical

judgment of health care professionals. See Federal Bureau

of Prisons, U.S. Dep't of Justice, Program Statement, No.

6000.04 (Dec. 15, 1994) ("Health Services Manual"), Ch. 1,

s 1, reprinted in J.A. 61. The term "medically mandatory"

applies to "cases in which urgent intervention is required."

Id. The term "presently medically necessary" describes

treatment "without which an inmate could not be maintained

without significant risk of either further serious deterioration

of his/her condition or significant reduction of the chance of

possible repair after release, or without significant pain or

discomfort." Id. In addition to this broad mission state-

ment, the BOP's medical policy includes a provision specifical-

ly applicable to the treatment of transsexualism, which de-

clares:

It is the policy of the [BOP] to maintain a transsexual

inmate at the level of change existing upon admission.

Should the Clinical Director determine that either pro-

gressive or regressive treatment changes are indicated,

the Medical Director must approve these prior to imple-

mentation. The use of hormones to maintain secondary

sexual characteristics may be continued at approximately

the same levels as prior to incarceration (with appropri-

ate documentation from community physicians/hospitals)

and with the Medical Director's approval.

Health Services Manual, Ch. 5, s 14, reprinted in J.A. 64.

The present case centers on the course of predominantly

unanswered correspondence by which Farmer sought Mori-

tsugu's intervention in her treatment program. Moritsugu,

for his part, acknowledges receiving one letter from Farmer.

In that letter, dated July 30, 1992, Farmer apparently re-

quested some combination of treatment--hormones, castra-

tion, and/or psychotherapy--for her transsexualism. That

letter, in turn, prompted Moritsugu's response of August 11,

1992. See Letter from Moritsugu to Farmer (Aug. 11, 1992),

reprinted in J.A. 52-53.

In his letter to Farmer, Moritsugu recited the BOP's

general medical policy, as described above. He then proceed-

ed to address briefly each potential form of treatment for

transsexualism. As to hormones, Moritsugu stated that

Farmer was not on hormones when she arrived in the federal

prison system, and that he had not received a request for

such treatment from the medical personnel of the facility in

which she was incarcerated. As to castration, Moritsugu

again emphasized that he had not received a recommendation

for such treatment from the relevant medical personnel, and

added that he would only consider authorizing castration if it

was clinically necessary, rather than simply "a cosmetic pro-

cedure or a procedure to further transsexual change." J.A.

52. Finally, as to psychotherapy, Moritsugu observed that

Farmer had received counseling, but that her transsexualism

was a "general emotional state," which did "not present a

specific mental health problem that mental health personnel

[could] isolate for treatment." Id. at 52-53. He concluded by

stating that mental health personnel were available to assist

Farmer if she had "specific needs." Id. at 53.

Farmer claims to have written Moritsugu on four subse-

quent occasions, requesting that he reconsider his decision.

Moritsugu, however, does not acknowledge receiving, and did

not respond to, any of these alleged letters.

B.Farmer's Lawsuit

On May 15, 1996, Farmer filed the instant lawsuit in

District Court, naming Kathleen Hawk, in her official capaci-

ty as Director of the BOP, and Moritsugu, in both his official

and individual capacities. Farmer's complaint sought dam-

ages against Moritsugu pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), alleging, inter alia, that Moritsugu violated her

Eighth Amendment rights by failing "to promulgate any

policy which would have required the BOP medical staff to

provide [her] with treatment for transsexualism," and by

failing to "direct the BOP medical staff to provide [her] with

treatment for transsexualism." Second Amended Complaint

pp 53-54, reprinted in J.A. 37.

Defendants moved to dismiss or, in the alternative, for

summary judgment, arguing, inter alia, that Moritsugu was

entitled to qualified immunity on the claim for damages

asserted against him in his individual capacity. The District

Court granted in part and denied in part defendants' motion.

See Farmer v. Hawk, 991 F. Supp. 19, 28 (D.D.C. 1998). As

relevant to the present action, the trial court first determined

that, at the time of Moritsugu's letter to Farmer, it was

clearly established that transsexualism was a serious medical

condition entitling Farmer to some form of treatment. See

id. at 25-27. With regard to Moritsugu's alleged failure to

promulgate a new policy for treatment of transsexuals, the

court found that the BOP's current policy is constitutional on

its face, and, therefore, that Moritsugu's failure to issue a new

policy could not have been deliberately indifferent. See id. at

27. However, with regard to Moritsugu's alleged failure to

enforce adequately the existing policy to secure treatment for

Farmer, the trial court concluded that Moritsugu's response

to Farmer's requests "could very possibly have constituted

deliberate indifference," because his letter "acknowledge[d]

and sanction[ed] the withholding of any treatment from

Farmer." Id. at 28. Thus, the court held that Moritsugu

was not entitled to immunity on this claim. See id. This

appeal, which concerns solely the question of Moritsugu's

liability in his individual capacity, followed.

II. Analysis

A.Qualified Immunity Principles

It is well-established that qualified immunity shields gov-

ernment officials from liability for civil damages "insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Where an official's conduct is objectively reasonable in light

of existing law, that official will enjoy protection from liability.

See Anderson v. Creighton, 483 U.S. 635, 639 (1987). Where,

however, "an official could be expected to know that certain

conduct would violate statutory or constitutional rights," that

official may be vulnerable to suit by one who suffers injury

resulting therefrom. Harlow, 457 U.S. at 819. In short,

"[a]n official is ... entitled to summary judgment [on quali-

fied immunity grounds] unless '[t]he contours of the right

[were] sufficiently clear that a reasonable official would [have]

underst[ood] that what he [was] doing violate[d] that right.' "

Harris v. District of Columbia, 932 F.2d 10, 13 (D.C. Cir.

1991) (quoting Anderson, 483 U.S. at 640).

By "provid[ing] government officials with the ability rea-

sonably to anticipate when their conduct may give rise to

liability for damages," Anderson, 483 U.S. at 646 (citation and

internal quotation marks omitted), the doctrine of qualified

immunity strikes a balance between compensating those in-

jured by official conduct and protecting the Government's

basic ability to function. See Harlow, 457 U.S. at 813-14. In

other words, qualified immunity is designed to mitigate the

social costs of exposing government officials to personal liabil-

ity--costs such as "distraction of officials from their govern-

mental duties, inhibition of discretionary action, and deter-

rence of able people from public service." Id. at 816; see also

Harris, 932 F.2d at 13. To this end, qualified immunity

provides not simply a defense to liability, but also "an entitle-

ment not to stand trial or face the other burdens of litigation,

conditioned on the resolution of the essentially legal question

whether the conduct of which the plaintiff complains violated

clearly established law." Mitchell v. Forsyth, 472 U.S. 511,

526 (1985).

B.Appellate Jurisdiction

The present matter comes to us on interlocutory appeal

from the District Court's denial of Moritsugu's motion for

summary judgment on the basis of qualified immunity. See

Farmer v. Hawk, 991 F. Supp. at 28. We begin our analysis,

therefore, by considering whether we have jurisdiction to

decide this appeal.

Pursuant to 28 U.S.C. s 1291, we have jurisdiction over

appeals from "final decisions of the district courts." A denial

of summary judgment is ordinarily not "final," because it

simply sends a case to trial. However, under a settled

application of the "collateral order doctrine," see Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), an

appeal from a denial of summary judgment on the ground of

qualified immunity may be susceptible to immediate appeal.

See Mitchell, 472 U.S. at 530.

Because immunity from the burdens of litigation "is effec-

tively lost if a case is erroneously permitted to go to trial," id.

at 526, the policies underlying qualified immunity favor reso-

lution of immunity claims prior to full discovery, and, there-

fore, support immediate appeal of an order denying immuni-

ty. See id. at 526-30. Collateral order principles do not,

however, permit an immediate appeal merely because a de-

fendant asserted, but was denied, qualified immunity. See

Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Rather, the

Supreme Court has distinguished between appeals raising

"abstract" legal issues--i.e., "whether the facts alleged ...

support a claim of violation of clearly established law," Mitch-

ell, 472 U.S. at 528 n.9--and appeals challenging evidentiary

sufficiency--i.e., whether the summary judgment record rais-

es genuine issues of fact for trial. See Johnson v. Jones, 515

U.S. 304, 313 (1995). As we see it, this precedent draws a

critical line between appeals of the "I cannot, as a matter of

law, be held liable" variety and appeals of the "I did not, as a

matter of fact, do it" variety. The former is permitted,

notwithstanding the absence of a final judgment in the case,

see Mitchell, 472 U.S. at 530; the latter, however, is not. See

Johnson, 515 U.S. at 313.

We find that the instant appeal falls on the permissible side

of this line. The District Court found that material issues of

fact remain in dispute, including the question of whether

Farmer actually received any treatment for her transsexual-

ism. See Farmer v. Hawk, 991 F. Supp. at 27, 30. Mori-

tsugu's challenge, however, does not go to this finding. The

crux of Moritsugu's appeal is that, even assuming the facts as

presented by Farmer, he could not have violated her Eighth

Amendment rights, because he adhered to the BOP's consti-

tutional medical policy, which does not charge him with

responsibility for the diagnosis and treatment of individual

patients. See Brief for Appellant at 9. In short, Moritsugu

has effectively conceded the facts as alleged by Farmer,

contesting instead whether those facts could support a conclu-

sion that he violated Farmer's constitutional rights. This

case, therefore, "concern[s], not which facts the parties might

be able to prove, but, rather, whether or not certain given

facts show[ ] a violation of 'clearly established' law." John-

son, 515 U.S. at 311 (citing Mitchell, 472 U.S. at 528).

Accordingly, we have jurisdiction to hear and decide this

appeal.

C.Moritsugu's Qualified Immunity Claim

We turn now to the merits of Moritsugu's qualified immuni-

ty claim. We review the District Court's denial of summary

judgment de novo, applying the same legal standard that

governed the District Court's determination. See National

Wildlife Fed'n v. Browner, 127 F.3d 1126, 1128 (D.C. Cir.

1997).

Moritsugu is protected by qualified immunity unless Farm-

er's allegations could sustain a finding that his conduct violat-

ed clearly established law. See Harlow, 457 U.S. at 818. The

"clearly established law" upon which Farmer's contentions

rest is the Eighth Amendment's proscription against "deliber-

ate indifference to serious medical needs of prisoners." Es-

telle v. Gamble, 429 U.S. 97, 104 (1976). A prison official who

"knows of and disregards an excessive risk to inmate health

or safety" is deliberately indifferent for these purposes.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). The only

question presently before us, then, is whether, viewing the

record in the light most favorable to Farmer, Moritsugu's

conduct could have constituted deliberate indifference to

Farmer's medical needs.

In Farmer's view, Moritsugu was deliberately indifferent,

because, in the face of her repeated requests for some type of

treatment, he responded with only a single letter explaining

the BOP's policy and finding that she had not established an

entitlement to treatment thereunder. The bottom line,

Farmer contends, is that Moritsugu was aware of, yet or-

dered no treatment for, her medical condition. See Brief of

Appellee at 11. The District Court agreed, finding that

Moritsugu effectively "sanction[ed]" the withholding of treat-

ment from Farmer. Farmer v. Hawk, 991 F. Supp. at 28.

We find, however, that Farmer's claims imply an obligation

falling well outside the scope of Moritsugu's role as Medical

Director, and, moreover, that Moritsugu's response to Farm-

er's requests comported with constitutional BOP medical

policy. Thus, we conclude that Moritsugu's conduct met the

standard of "objective legal reasonableness" required to sup-

port qualified immunity. Harlow, 457 U.S. at 819.

There is no dispute here that the BOP's medical policy

specifically speaks to the treatment of transsexualism. See

Health Services Manual, Ch. 5, s 14, reprinted in J.A. 64.

Moreover, although Farmer originally challenged both the

BOP's medical policy and its application to her, the District

Court found that the policy is constitutional on its face. See

Farmer v. Hawk, 991 F. Supp. at 27. Farmer has not

contested this finding on appeal. We deem it unnecessary to

reach the question of whether or not transsexualism is a

serious medical condition, therefore, because even assuming

that it is, adherence to the policy would, a fortiori, be

constitutional.

The parties agree, moreover, that, pursuant to this con-

cededly constitutional policy, only three treatment options

were potentially available in this case: hormone therapy,

castration, and psychotherapy. Throughout this litigation,

Farmer has recognized that she is not entitled to any particu-

lar treatment of her choosing. See Brief for Appellee at 4.

At oral argument, counsel also conceded that hormone thera-

py and castration are not realistically at issue in this case, i.e.,

Farmer cannot pin a claim of deliberate indifference on

Moritsugu's failure to order these treatments. We agree, and

find nothing in the record to suggest otherwise.

The only remaining question, then, is whether Moritsugu

was deliberately indifferent to Farmer's need for psychother-

apy. We find that he was not, as Farmer has failed to

establish any "need" for psychotherapy of which Moritsugu

was aware and to which he was indifferent. Farmer appar-

ently relies on the simple fact of her diagnosis to support her

need for counseling. Yet, this is plainly inadequate: merely

because someone is a transsexual, it does not inexorably

follow that he or she needs psychotherapy. Even the fact

that Farmer received some counseling in the past does not

necessarily demonstrate her present need for that treatment.

Indeed, it appears undisputed that, under the established

BOP policy, Farmer had no guarantee of psychotherapy for

transsexualism absent a demonstrated need.

Quite apart from whether Farmer had a need for psycho-

therapy, the most important point in this case is that

Moritsugu is not the person within the BOP who determines

whether psychotherapy is required in a given case. As

Medical Director, overseeing operations in facilities nation-

wide from his office in Washington, D.C. , Moritsugu does not

diagnose individual patients; nor does he prescribe treat-

ments for particular patients, except insofar as he may be

called upon to approve the recommendation of a treating

physician. Such determinations are made at the local level,

i.e., within individual BOP institutions. In short, Farmer's

pleas to Moritsugu were plainly misguided. The appropriate

recourse was, first and foremost, through the local medical

personnel who were responsible for Farmer's treatment deci-

sions. If Farmer was dissatisfied with local medical treat-

ment, she had recourse to grievance and appeal procedures

pursuant to which she could contest any failures in medical

care. There is no claim here that these grievance procedures

were legally inadequate.

Obviously, Farmer preferred to seek relief from the head of

the operation, apparently on the mistaken assumption that

the boss can cure all ills. It is unimaginable, however, that

Moritsugu should be available to intervene in established

processes on behalf of every BOP inmate who happens to be

dissatisfied with his or her medical treatment. This is partic-

ularly true where, as here, the requests were completely

unsupported by treatment records or recommendations from

local medical personnel establishing a need for treatment. It

is clear that Moritsugu's role as Medical Director neither

required nor countenanced his involvement in Farmer's case.

On its face, Moritsugu's August 11 letter simply confirms

the obvious. To be sure, Moritsugu did, perhaps unnecessari-

ly, comment directly upon issues pertaining to Farmer's

medical care. Implicit in his letter, however, was the strong

message that Farmer's requests were misdirected. He stat-

ed that he had not received requests from local medical

personnel to treat Farmer with hormones or castration, but

that mental health personnel were available to assist her

should she have specific needs for psychotherapy. See J.A.

52-53. The bottom line is apparent: as far as Moritsugu

could tell, Farmer had not demonstrated any need for treat-

ment, and it was not his role to ascertain this need. Under

these circumstances, the letter reflected little more than

Moritsugu's adherence to the BOP's medical policy, pursuant

to which he was not directly involved in decisions concerning

Farmer's care. Even Farmer's counsel, when questioned at

oral argument, acknowledged that her client could not win an

Eighth Amendment claim on the basis of Moritsugu's letter

alone.

Thus, we find that Moritsugu is entitled to qualified immu-

nity, for there is nothing else in the record on which to pin

deliberate indifference. Farmer emphasizes that her claims

rest not on any isolated occurrence, such as Moritsugu's

August 11 letter, but rather on Moritsugu's persistent failure,

in the face of her ongoing requests, to ensure that she receive

any treatment. However, the mere fact that Farmer wrote

to Moritsugu on multiple occasions does not change the

outcome, because Moritsugu was never the person to whom

these matters should have been addressed in the first place.

Farmer's claims, unsupported by evidence of a medical need

for psychotherapy, did not trigger any obligation on the part

of Moritsugu to conduct an independent investigation into her

medical condition and treatment. Farmer's implications in

this regard, therefore, fail to appreciate Moritsugu's limited

role, under the BOP's constitutional medical policy, in treat-

ment decisions properly made by physicians in local institu-

tions. In light of these factors, we hold that Moritsugu's

conduct was objectively reasonable.

We add, as a final note, that exposing Moritsugu to person-

al liability in these circumstances would be totally at odds

with the policies underlying the doctrine of qualified immuni-

ty. See Harlow, 457 U.S. at 806, 814. If Moritsugu is liable

in a case such as this, he is, in effect, liable for all alleged

mistakes in the individual diagnoses of every inmate in the

BOP system, simply by virtue of an inmate's complaint. Such

an outcome is untenable. This is not to say that we can

envision no circumstances under which Moritsugu could have

been deliberately indifferent to an inmate's medical needs.

However, we simply cannot imagine how the Medical Director

in Washington, D.C. could be expected to formulate treatment

regimes for prisoners throughout the system on the basis of

essentially undocumented complaints charging inadequate

care. And, if the weight of such an assignment were not

problematic enough, the risk of personal liability would make

it virtually impossible for the Government to fill positions

such as Moritsugu's, as few qualified doctors would be willing

to assume this responsibility with the accompanying risks of

liability. The Government cannot be expected to operate in

this way, and high government officials cannot be expected to

assume this type of liability.

III. Conclusion

For all of the foregoing reasons, we find that Moritsugu is

entitled to qualified immunity on Farmer's Eighth Amend-

ment claims against him in his individual capacity. Accord-

ingly, we reverse the District Court's denial of summary

judgment in his favor.

So ordered.