# Supre v. Ricketts

> Court of Appeals for the Tenth Circuit · June 2, 1986 · 792 F.2d 958

URL: https://www.frixlaw.com/law-library/cases/8941399

## Case

- **Full name:** Shauna SUPRE, also known as Ralph Spencer v. James G. RICKETTS, Ph.D., Executive Director, Colorado Department of Corrections, L. Dennis Kleinsasser, Ph.D., Robert McGowan, M.D., Robert Warren, Ph.D., and Robert T. Moore
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** June 2, 1986
- **Citations:** 792 F.2d 958
- **Precedential status:** Published
- **Opinion:** Dissent by Seymour
- **Judges:** Baldock, Seth, Seymour
- **Cited by:** 179 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8941399

## How later opinions describe it (automated extraction)

- finding that where "there were a variety of options available for the treatment of plaintiff's psychological and physical medical conditions" and the prison chose one of those options, plaintiff could not show that "there was a total failure to give medical attention"
- concluding that deliberate indifference claim "was plainly not unfounded" when "record contain[ed] no proof that prison physicians ever addressed whether [prisoner's] self-mutilation might have been ... in need of treatment"
- concluding that deliberate indifference claim “was plainly not unfounded” when “record contained] no proof that prison physicians ever addressed whether [prisoner’s] self-mutilation might have been ... in need of treatment”
- holding that prisoner who had engaged in self-mutilation was not entitled to hormone treatment for gender dysphoria because denial of such treatment was based on "an informed [medical] judgment"
- concluding that declining to provide hormone therapy did not constitute deliberate indifference when prison officials offered alternate treatment

## Opinion text

SEYMOUR, Circuit Judge,
dissenting.
I respectfully dissent. Shauna Supre may be considered a prevailing party for purposes of recovering attorneys fees: (1) if her action is causally linked to attaining some of the benefits sought in bringing suit, and (2) if her original legal claim was not unfounded. 1 Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir.1978). In reversing the district court’s fee award, the majority has misapplied the first prong of the prevailing party test and misapprehended the second. In my view, Supre has met the test for recovery of attorneys fees. 2
*965 J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.1985), relied on by the majority, affirms that this circuit follows Nadeau. See id. at 1472. Although J & J Anderson suggests that a defendant’s remedial conduct must be required by law, see id. at 1475, the majority has viewed this language in a vacuum. We further explained in J & J Anderson that a plaintiff need show only that the defendant’s conduct was “ ‘not a wholly gratuitous response to an action that in itself was frivolous or groundless.’ ” Id. (quoting Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir.1982)). We then demonstrated that the plaintiffs there could not conceivably have prevailed. See id. at 1475-78; accord Operating Engineers Local Union No. 3 v. Bohn, 737 F.2d 860, 863 (10th Cir.1980). 3 Nadeau’s formulation therefore represents the law in this circuit.
The Fifth Circuit recently clarified the Nadeau test:
“[W]e hold that a plaintiff who achieves the goal sought in a civil rights suit by voluntary action of the defendant prevails within the meaning of the Act if she demonstrates that the suit caused the defendant to act, unless the defendant proves that the plaintiff’s claim had no colorable merit and the defendant made the change gratuitously for reasons unrelated to the potential merit of the suit.”
Hennigan v. Ouachita Parish School Board, 749 F.2d 1148, 1149 (5th Cir.1985). An overwhelming majority of the circuits have endorsed these standards, and no court before today has held in favor of more stringent criteria. See id. at 1151-52 & n. 15 (reviewing cases). The majority in this case has warped what the Supreme Court has approved as a “generous formulation,” see Hensley v. Eckerhart, 461 U.S. 424, 433 , 103 S.Ct. 1933, 1939 , 76 L.Ed.2d 40 (1983) (citing Nadeau, 581 F.2d at 278-79 ), into a gauntlet to be run by this civil rights plaintiff.
In holding that Supre is not entitled to attorneys fees, the majority has erred in imposing its own view of the evidence regarding whether this action secured significant benefits. See Anderson v. City of Bessemer City, 470 U.S. 564 , 105 S.Ct. 1504, 1512 , 84 L.Ed.2d 518 (1985). Supre’s lawsuit focused upon what constituted medically necessary treatment for gender dysphoria in her case. The district court specifically found that this action prompted the Department of Corrections (the Department) to relax its rigid treatment policy and to allow Supre estrogen therapy on a continuing basis. The court concluded that the Department would not have acted both promptly and favorably without the impetus of this vigorously prosecuted action. See rec., vol. VII, at 65-66.
The record amply supports this conclusion. Supre first requested estrogen in August 1980. After promising a response within one month, prison officials repeatedly delayed without explanation. Supre became desperate: as a male-to-female transsexual, she viewed herself as a woman trapped in a man’s body. She attempted suicide once and mutilated herself several times in efforts at self-emasculation. After a final attempt resulted in the surgical removal of Supre’s testicles, the Department at last addressed her year-old plea and rejected it. This delay clearly supports an inference that the Department would not unilaterally have confronted the task of developing a new treatment policy.
The district court found an additional fact significant: immediately after the court ordered a continuance of this case, the Department’s panel of experts met for the first time and the Department revised its original policy. See Supre v. Ricketts, 596 F.Supp. 1532, 1534-35 (D.Colo.1984); see also United Handicap Federation v. *966 Andre, 622 F.2d 342 , 347 (8th Cir.1980) (chronology of events “an important factor” in inferring existence of causal connection). The court’s order provided for individual attention to Supre’s case by the panel, and strongly implied that one of her treating physicians should be included in its deliberations. The fulfillment of these conditions reinforces the likelihood of a link between Supre’s lawsuit and the panel’s ultimate recommendations. In light of these facts, I would defer to the district court’s markedly superior position from which to assess the influence of this litigation.
The court also found that the case precipitated Supre’s release, which apparently offered the only feasible alternative for needed care. Daniel Grove, who participated in making the necessary decisions, testified that Supre was released in part because the prison could not provide the medical treatment and accommodations she required. Grove also testified that Supre presented a management problem for prison officials. The district court noted that the availability of estrogen due to this lawsuit caused Supre to develop female breasts, which made her difficult to house in an all-male facility.
The majority concedes the existence of this causal connection, but asserts that Supre in fact posed a management problem because of her attempts at self-emasculation. This argument ignores the fact that the prison did not recommend parole until immediately after Supre began receiving estrogen, which was long after the most extreme incidents of self-mutilation had occurred. See Andre, 622 F.2d at 347. The district court did hear testimony supporting the majority’s position, but apparently chose to discount it in light of other evidence.
Such credibility determinations are entitled to great deference on appeal, see Anderson, 105 S.Ct. at 1512-13 , and the majority has offered no convincing reason for disturbing those made in this case.
“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Id. at 1512. In my view, the record in this case clearly supports a finding that this action has generated significant results in terms of both treatment and release.
In requiring Supre to prove that the Department’s change in treatment policy was required by law, the majority has improperly converted Nadeau’s modest requirement that a plaintiff’s action not be unfounded into an onerous and unprecedented demand that she win her case outright. The Supreme Court has admonished that “[a] request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437 , 103 S.Ct. at 1941 . Surely Congress did not intend that a settling plaintiff be required to prove her whole case in order to recover such fees. Nadeau established that a plaintiff should be considered the prevailing party in a case terminated without trial unless her original legal claim could be deemed frivolous, unreasonable, or groundless. See 581 F.2d at 281 . In my view, the record in this case reveals a complicated fact pattern which supports a claim of “deliberate indifference to serious medical needs.” See Estelle v. Gamble, 429 U.S. 97,104 , 97 S.Ct. 285, 291 , 50 L.Ed.2d 251 (1976).
This case presents more than a straightforward professional disagreement over the proper course of treatment for gender dysphoria. The issue is decidedly not whether estrogen therapy is always required in such cases, but whether the failure to provide it under the circumstances of this case presented a nonfrivolous constitutional claim. Even assuming that the Department developed a general policy for gender dysphoria which was constitutionally adequate, prison officials nonetheless ignored a pressing medical need of Supre as an individual. She was no ordinary trans *967 sexual, but one driven to acts of self-emasculation. Prison officials put off her pleas for estrogen even though she mutilated herself repeatedly and attempted suicide. Such a failure to act raises an inference of deliberate indifference, whatever the proper course of treatment. As Dr. Graze testified, “[t]here was knowledge of several attempts at mutilation, and ... I was shocked that estrogen had not been given.” Rec., vol. IV, at 111.
The Department’s original treatment policy failed to respond to Supre’s aberrant, self-destructive behavior, as did Dr. Alsever’s conclusion that estrogen was not medically compelled in cases of gender dysphoria. As the district court summarized:
“The official response of the defendants to the mutilations, castration, doctors’ diagnosis and recommendations, and plaintiff’s requests for female hormones was a written policy statement dated April, 1982, which concluded that treatment for gender dysphoria and evaluation of sexual reassignment could not be provided in a penal setting.”
Supre, 596 F.Supp. at 1534 . Although prison officials have opined that Supre’s conduct was calculated and manipulative, a charge she denies, this record contains no proof that prison physicians ever addressed whether her self-mutilation might have been symptomatic and in need of treatment. Cf . Lee v. McManus, 543 F.Supp. 386, 390-92 (D.Kan.1982) (preliminary injunction issued when physicians disagreed over necessary treatment and prison physician had ignored plaintiff’s case). Perhaps the Department could have shown at trial that its medical staff did not merely promulgate a gender dysphoria treatment policy and apply it woodenly to Supre’s case. On this record, however, the question remains unresolved. Supre’s original claim was plainly not unfounded.
Having concluded that Supre should be considered a prevailing party, I would uphold the amount of attorneys fees awarded as reasonable in light of the results obtained, see Hensley, 461 U.S. at 435 , 103 S.Ct. at 1940 . As the district court suggested, plaintiff’s counsel deserves every penny for rescuing his client from conditions which might well have amounted to cruel and unusual punishment.
I would affirm.
. I choose the female pronouns "she” and "her” as a matter of courtesy to Shauna Supre. The trial judge adopted this practice, and counsel for the Department of Corrections has sometimes acknowledged Supre in female terms as well.
. Notwithstanding my view of the merits, I agree with much of the analysis contained in Part III of the majority opinion. In particular, I agree that the clearly erroneous standard of review applies to mixed questions involving primarily a factual inquiry, while de novo review is appropriate when considerations of law predominate. As the majority recognizes, this distinction applies when the facts are established or admitted. A district court’s findings with regard to any underlying issues of historical fact *965 remain subject to review under the clearly erroneous standard.
. Like J & J Anderson, Bohn purports to follow Nadeau but states that a defendant's conduct must be required by law. See Til F.2d at 863. Unlike J & J Anderson, the court provides no explanation for the apparent contradiction. Because the plaintiffs claims were patently unfounded, see id., the court’s particular choice of words should be viewed as inadvertent or, alternatively, as dictum.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8941399. Public record. Not legal advice.