Lamb (ID #17636) v. Goddard et al
MEMORANDUM AND ORDER denying as moot 33 Motion to Stay Discovery; granting 35 Motion for Summary Judgment; granting 38 Motion for Summary Judgment; granting 46 Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 07/06/2017. Mailed to pro se party Michelle Renee Lamb at EL DORADO Correctional Facility-Central by regular mail. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHELLE RENEE LAMB,
a/k/a THOMAS LAMB
Case No. 16-3077-EFM-DJW
JOE NORWOOD, JOHNNIE GODDARD,
PAUL CORBIER, KANSAS
DEPARTMENT OF CORRECTIONS, and
CORIZON HEALTH SERVICES,
MEMORANDUM AND ORDER
Michelle Renee Lamb is currently serving three consecutive life sentences for two counts
of kidnapping and one count of murder. Michelle Renee was born Thomas Preston; she changed
her name in 2007.1 She has been diagnosed with gender dysphoria; although she was born a
biological male, she considers herself female. Michelle brings this action against the Kansas
Department of Corrections (“KDOC”); Joe Norwood,2 the Secretary of Corrections, in his
The Court follows KDOC’s approach and uses female pronouns when referring to Michelle.
At the time Lamb filed this action, Johnnie Goddard was the acting Secretary of Corrections for the
Kansas Department of Corrections. That position is now held by Joe Norwood, who is automatically substituted as
a party in this case to the extent that Lamb sued Goddard in his official capacity. See Fed R. Civ. P. 25(d).
official capacity; Johnnie Goddard,3 Deputy Secretary of Corrections, in his individual capacity;
Corizon Health Services; and Dr. Paul Corbier. She asserts that the Defendants are violating the
Eighth Amendment’s prohibition against cruel and unusual punishment by failing to adequately
treat her gender dysphoria. She also alleges that her constitutional rights are being violated by
the conditions of her confinement. Accordingly, she seeks declaratory and injunctive relief.
Specifically, she seeks more comprehensive treatment of her gender dysphoria, access to more
female items in prison, recognition of her name change, and transfer to a female-only prison
Corizon and Dr. Corbier have each filed a motion for summary judgment (Docs. 35 and
38), arguing that they are not violating the Eighth Amendment because they are not deliberately
indifferent to Lamb’s medical needs. KDOC, Norwood, and Goddard (the “Prison Officials”)
have also filed a motion for summary judgment (Doc. 46). They also argue that Lamb cannot
demonstrate deliberate indifference to her medical needs.
Furthermore, they contend that
Lamb’s conditions of confinement are constitutional. For the reasons stated below, the Court
agrees with the Defendants and grants all three motions for summary judgment.
Factual and Procedural Background4
In December 1969, Thomas Lamb abducted and murdered a young woman named Karen
Sue Kemmerly. Shortly thereafter, in January 1970, Thomas Lamb abducted another young
woman named Patricia Ann Childs and sought a ransom in exchange for her release. While in
Thomas Lamb’s custody, Childs’ hands were bound and on several occasions, she was forced to
Because Lamb also alleges that Goddard violated her rights in his individual capacity, he remains a
defendant to that extent.
In accordance with summary judgment procedures, the Court has set forth the uncontroverted facts, and
they are related in the light most favorable to the non-moving party.
engage in sexual intercourse with Thomas. Shortly after the ransom was paid and Childs was
released, Thomas Lamb was apprehended. Thomas Lamb was convicted of two counts of
kidnapping and one count of first degree murder, and is now serving three consecutive life
sentences in prison.
While in prison, Thomas Preston Lamb began going by Michelle Renee Lamb. And in
2007, that name change was made official. Michelle Lamb has been diagnosed with gender
dysphoria: she was born a biological male, but self identifies as a female transsexual. Lamb is in
the custody of the KDOC. At the time she filed this action, Johnnie Goddard was the acting
Secretary of Corrections. Currently, that position is held by Joe Norwood. KDOC contracts
with Corizon to provide medical care to its inmates. Since either 2012 or 2014,5 Lamb has been
seen by Dr. Paul Corbier. Dr. Corbier is Corizon’s Regional (Kansas) Medical Director.
Lamb receives weekly counseling and therapy sessions. Every week, she meets with
Brandon Pratt, a licensed psychologist employed by Corizon.
She also receives hormone
treatments. Specifically, she takes estrogen and a testosterone-blocking medication. Dr. Corbier
asserts that he and a panel of practitioners have deemed that Lamb’s treatment is appropriate. In
January 2016, Lamb was allowed access to jewelry—specifically earrings—and was also given
female undergarments. Pratt explains that access to these items is meant to be therapeutic for
Lamb’s gender dysphoria. Dr. Corbier stated that Lamb’s condition will not decline if her
current treatment regimen continues, and in his opinion, “the relative risks and benefits of sexual
reassignment surgery render surgery [an] impractical and unnecessary option when more
conservative therapies are available and effective.”
The parties disagree as to when Dr. Corbier’s involvement began.
Lamb does not feel that her gender dysphoria is being treated. Lamb contends that the
weekly sessions and hormone treatments only treat the depression that results from her untreated
She claims that various medical doctors and gender dysphoria experts
recommend that she receive much more comprehensive treatment. She also asserts that the
treatment she is currently receiving falls short of the standard of care set forth by the World
Professional Association for Transgender Health (“WPATH”).
Lamb brings this action under § 1983 against Corizon, Dr. Corbier, and the Prison
Officials. She alleges that the current treatment that she is receiving for her gender dysphoria
violates her Eighth Amendment rights. She seeks injunctive relief, asking the Court to direct that
the Defendants provide Lamb with treatment conforming to the WPATH’s standard of care.
That treatment would include (1) castration surgery; (2) transfer to a female prison facility; (3) a
name change on all of KDOC’s official documents; (4) genital sex reassignment surgery; (5)
access to all canteen and property items that are currently available to female inmates; (6) female
voice therapy, electrolysis, and/or laser hair removal; and (7) an adjustment of Lamb’s hormone
Dr. Corbier and Corizon have each filed a motion for summary judgment. The Prison
Officials have also filed a motion for summary judgment. In their motions, all of the Defendants
argue that the facts show that they are not deliberately indifferent to Lamb’s medical condition
because she is receiving adequate treatment. Furthermore, the Prison Officials also argue that
Lamb’s constitutional rights are not violated by the conditions of her confinement.
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.6
A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the
proffered evidenced permits a reasonable jury to decide the issue in either party’s favor.7 The
moving party bears the initial burden of proof, and must show the lack of evidence on an
essential element of the claim.8 If the moving party carries this initial burden, the non-moving
party that bears the burden of persuasion at trial may not simply rest on its pleading but must
instead “set forth specific facts” from which a rational trier of fact could find for the non-moving
These facts must be clearly identified through affidavits, deposition transcripts, or
incorporated exhibits—conclusory allegations alone cannot survive a motion for summary
To survive summary judgment, the non-moving party’s evidence must be
admissible.11 The Court views all evidence and reasonable inferences in the light most favorable
to the party opposing summary judgment.12
Lamb is proceeding pro se. The Court therefore reviews her pleadings, including those
related to Defendants’ motion, “liberally and holds them to a less stringent standard than those
Fed. R. Civ. P. 56(a).
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Cartrett,
477 U.S. 317, 322-23 (1986)).
Id. (citing Fed. R. Civ. P. 56(e)).
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir. 2000) (citing Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670-71 (10th. Cir. 1998)).
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
drafted by attorneys.”13 The Court, however, cannot assume the role of advocate for the pro se
litigant.14 Likewise, Lamb’s pro se status does not relieve her from the obligation to comply
with procedural rules, including the Federal Rules of Civil Procedure.15
Lamb seeks declaratory and injunctive relief under 42 U.S.C. § 1983. Section 1983 is not
a source a substantive rights; it merely provides a mechanism for enforcing rights secured
elsewhere under federal law.16 And so to invoke § 1983, Lamb must first show that she has been
deprived of a right secured under federal law.17 Specifically, she alleges that all of the defendants
are violating her Eighth Amendment rights by failing to acknowledge and treat her serious
medical condition. She also alleges that the conditions of her confinement are violating her
constitutional rights. She seeks an injunction directing the Defendants to properly treat her
condition, and requests changes to the condition of her confinement, primarily, transfer to a
Lamb’s hormone treatments and weekly therapy sessions do not violate the Eighth
Lamb contends that all of the Defendants are violating her Eighth Amendment rights by
treating her in a manner that falls short of WPATH standards. She asserts that the Eighth
Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (quotations omitted).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[W]e do not believe it is the proper function of
the district court to assume the role of advocate for the pro se litigant.”).
Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2002).
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).
13D Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Richard D. Freer, Federal Practice
and Procedure § 3573.2, 568 (3d ed. 2008) (noting that to prevail on a § 1983 claim, a plaintiff must show “that he
has been deprived of a right secured by an appropriate federal law.”).
Amendment requires that she receive the following treatments: castration surgery; genital sex
reassignment surgery; female voice therapy, electrolysis, and/or laser hair removal; and an
adjustment to the hormone treatment that she is currently receiving. She argues that anything
short of the above treatments—such as the care she is currently receiving—constitutes deliberate
indifference to her medical needs in violation of the Eighth Amendment.
“A prison official’s deliberate indifference to an inmate’s serious medical needs is a
violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.”18 The
deliberate indifference standard involves two components: “an objective component requiring
that the pain of deprivation be sufficiently serious; and a subjective component requiring that
[prison] officials act with a sufficiently culpable state of mind.”19 For the purposes of this
motion only, the defendants concede that the deprivation of gender dysphoria treatment is
sufficiently serious. Therefore, their motion turns on the subjective component.
“A mere ‘negligent failure to provide adequate medical care, even one constituting
medical malpractice, does not give rise to a constitutional violation.’ ”20 Nor does a prisoner’s
disagreement with a diagnosis or prescribed course of treatment constitute an Eighth Amendment
violation.21 “Where a doctor ‘orders treatment consistent with the symptoms presented and then
continues to monitor the patient’s condition, an inference of deliberate indifference is
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991).
Jackson v. Clowers, 83 F. App’x 990, 993 (10th Cir. 2003) (quoting Perkins v. Kan. Dep’t of Corrs., 165
F.3d 803, 811 (10th Cir. 1999)).
Id. (citing Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992)).
unwarranted under [Tenth Circuit] case law.’ ”22 With that in mind, “the subjective component
is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his
considered medical judgment.”23
The Defendants argue that they acknowledge and are treating Lamb’s condition. Dr.
Corbier—a board certified medical doctor—asserts that he is aware of Lamb’s gender dysphoria
diagnosis. He asserts that her diagnosis and treatment regimen has been reviewed and approved
by a panel of practitioners that includes specialists in psychiatry and behavioral psychology.
Lamb receives weekly counseling and therapy sessions, hormone treatments, and has been
provided access to female clothing and accessories, which Brandon Pratt—Corizon’s
psychologist—claims is intended to be therapeutic. Dr. Corbier states that Lamb’s condition will
not decline if her current treatment regimen continues. In Dr. Corbier’s opinion, “the relative
risks and benefits of sexual reassignment surgery render surgery [an] impractical and
unnecessary option when more conservative therapies are available and effective.”
Lamb attempts to controvert many of Dr. Corbier’s assertions, but she mostly does so
improperly. Under Rule 56 of the Federal Rules of Civil Procedure, a party attempting to
controvert a fact must do so by “citing to particular parts of materials in the record.”24 This
District’s local rules also require that in a memorandum opposing summary judgment, “[e]ach
fact in dispute must be numbered by paragraph, [and] refer with particularity to those portions of
Toler v. Troutt, 631 F. App’x 545, 548 (10th Cir. 2015) (quoting Self v. Crum, 439 F.3d 1227, 1232-33
(10th Cir. 2006)).
Self, 439 F.3d at 1232.
Fed. R. Civ. P. 56(c)(1)(A).
the record upon which the opposing party relies.”25 Lamb mostly fails to cite to the record with
any degree of particularity in attempting to controvert the Defendants’ facts. Nevertheless,
Lamb did support her complaint with a declaration that she swore to under penalty of perjury.
Such a document can be treated as an affidavit and serve as evidence in consideration of a
motion for summary judgment.26 And so the Court will look to Lamb’s declaration to see if a
genuine dispute of material fact exists.
Lamb primarily attempts to controvert the assertions of Pratt and Dr. Corbier by arguing
that the weekly sessions and hormone treatment only treat depression, and not gender dysphoria.
She claims that other medical professionals have told her that her hormone dosage is too low and
have recommended gender reassignment surgery.
She sets forth various opinions and
recommendations related to both her and other individuals’ gender dysphoria. Ultimately, she
asserts that her treatment falls short of the standard set forth by various experts as well as the
WPATH standard of care. Therefore, she argues that the treatment she is receiving is wholly
But under Tenth Circuit precedent, Lamb’s treatment satisfies the Eighth Amendment. In
1986, the Tenth Circuit decided Supre v. Rickets.27 In Supre, the Court noted that prison officials
must provide treatment to transgender prisoners.28 But the Court also noted that in that case, the
prison was justified in withholding hormone treatment.29 Specifically, the Court stated:
D. Kan. R. 56.1(b)(1).
Lewis v. Carrell, 2014 WL 4450147, at *3 (D. Kan. 2014).
792 F.2d 958 (10th Cir. 1986).
Id. at 963.
While the medical community may disagree among themselves as to the best form
of treatment for plaintiff’s condition, the Department of Corrections made an
informed judgment as to the appropriate form of treatment and did not
deliberately ignore plaintiff’s medical needs. The medical decision not to give
plaintiff estrogen until further study does not represent cruel and unusual
In her response to the motions for summary judgment, Lamb states that “[e]very conjecture made
in Supre v. Ricketts, has now been debunked by the Medical and Behavioral Science Community
through scientific & Medical research in gender identity disorder.” But the Tenth Circuit has
favorably cited Supre as recently as 2015 in Druley v. Patton.31 In Druley, the Tenth Circuit
considered an argument similar to that advanced by Lamb.32 Specifically, the prisoner in Druley
argued that treatments that fell short of WPATH’s standard of care violated her Eighth
Amendment rights.33 The Court noted that “[t]he WPATH Standards of Care are intended to
provide flexible directions for the treatment” of gender dysphoria.34 Druely reflects the reality
that the treatment of gender dysphoria is a highly controversial issue for which there are differing
opinions. Dr. Corbier exercised his medical judgment to determine a course of treatment for
Lamb, and in doing so, he has not violated her Eighth Amendment rights.35 Lamb obviously
601 F. App’x 632 (10th Cir. 2015).
Id. at 633 (noting that the plaintiff is “seeking a court order directing the  defendants to raise her
hormone medications to the levels recommended by the Standards of Care established by the World Professional
Association for Transgender Health (WPATH), allow her to wear ladies’ undergarment, and move her to a non-airconditioned building to alleviate asthma symptoms.”).
Id. at 635 (quoting Kosilek v. Spencer, 774 F.3d 63, 70 n.3, 86, 88 (1st Cir. 2014)) (internal quotation
marks omitted) (emphasis in orginal).
Lamb also asserts that Supre and Druley have been overruled by the case O’Donnabhain v.
Commissioner of Internal Revenue, 134 T.C. 34 (T.C. 2010). In that 2010 case, the United States Tax Court
determined that hormone treatment and sex reassignment surgery were tax deductible expenses for medical care. Id.
at 65-66. Obviously, this 2010 decision regarding tax-deductible expenses does not overturn a 2015 Tenth Circuit
disagrees with Dr. Corbier’s treatment decisions, but “disagreement does not give rise to a claim
for deliberate indifference to serious medical needs.”36
Because the Defendants have recognized Lamb’s medical condition and are treating her
for it, they have not been deliberately indifferent towards her medical needs. Accordingly, the
treatment of Lamb’s gender dysphoria does not violate the Eighth Amendment.
Lamb’s conditions of confinement do not violate the Constitution.
Lamb also objects to certain conditions of her confinement. She seeks an injunction
ordering the Prison Officials to provide her access to all female canteen and property items in
prison and to refer to her as Michelle, and not Thomas. She also seeks transfer to an all-female
prison facility. The Prison Officials seek summary judgment, arguing that Lamb’s conditions of
confinement satisfy the Constitution.
Canteen and Property Items
With regards to the canteen and property items, the record shows that Lamb was given
access to jewelry and women’s undergarments. But Lamb requests more. She wants access to
all prison property items that are listed as “female only.” This property apparently include items
such as mascara and eye shadow. Deprivation of access to items such as those does not rise to
the level of a constitutional violation.
“The Eighth Amendment protects inmates from
deprivation ‘of the minimal civilized measure of life’s necessities.’ ”37
confinement violate the Eighth Amendment if they result in ‘serious deprivations of basic human
case that addresses the precise issue that is now before the Court. This irrelevant and non-binding opinion has no
influence in this case.
Perkins, 165 F.3d at 811.
Jackson v. Wilkinson, 671 F. App’x 717, 718 (10th Cir. 2016) (quoting Rhodes v. Chapman, 452 U.S.
337, 347 (1981)).
needs.’ ”38 Basic human needs include “shelter, sanitation, food, personal safety, and medical
care.”39 Mascara, eye shadow, and other such items are not basic human needs. Even in an allfemale prison full of biological females, the Eighth Amendment would not require inmate access
to cosmetics. There is no such requirement in this case, either.
As noted above, Thomas Preston Lamb has legally changed her name to Michelle Renee
Lamb. She now requests that that change be reflected in all of KDOC’s official documents. The
Constitution does not require such an accommodation.
At the outset, Lamb’s request fails to give rise to any constitutional right.40 But even if it
did, KDOC was acting pursuant to a regulation that provides that while incarcerated, a prisoner
must respond to the name under which she was convicted.41 If a prisoner has legally changed her
name, the new name is reflected as an alias in parentheses after the convicted name.42 “[W]hen a
prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”43 Here, the Prison Officials argue the
relevant KDOC regulation exists “[f]or record-keeping purposes and to reduce confusion,” which
Savage v. Fallin, 663 F. App’x 588, 592 (10th Cir. 2016) (quoting Rhodes, 452 U.S. at 347).
Id. (quoting Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980)) (internal quotation marks omitted).
Kirwan v. Larned Mental Health, 816 F. Supp. 672, 674 (D. Kan. 1993) (“In the present case, however,
the court finds no constitutional right at issue. Plaintiff changed his name for personal reasons, and he complains of
prison regulations which interfere with his desire to referred to by his new name.”).
Turner v. Safely, 482 U.S. 78, 89 (1987).
constitutes a legitimate penological interest. Moreover, the legitimacy of such regulations has
been recognized by this and other federal courts.44
Transfer to a Female Facility
Finally, Lamb is not entitled to transfer to a female facility. “Inmates do not have a
constitutional right to choose their place of confinement.”45 And although Lamb argues that
“transfer does not raise serious safety and security concerns,” the Court cannot overlook the
heinous crimes for which Lamb is serving three life sentences. Thomas Lamb murdered Karen
Sue Kemmerly—a woman.
Shortly thereafter, he kidnapped Patricia Ann Childs—another
woman—and forced her to have sex with him while she was held against her will. Thomas was
ordered to serve three life sentences so that he would never kill or hurt another woman again.
Thomas is now Michelle, but Michelle is still a convicted kidnapper and murderer of women,
and the justification for her sentence has not changed.
“Prison officials must be free to take appropriate action to ensure the safety of inmates
and corrections personnel . . . . Accordingly, we have held that even when an institutional
restriction infringes on a specific constitutional guarantee, . . . the practice must be evaluated in
the light of the central objective of prison administration, safeguarding institutional security.”46
See United States v. White, 2011 WL 13174484, at *1 (D. Kan. 2011); Strope v. Gibbens, 2003 WL
1906458, at *5 (D. Kan. 2003); Kirwan, 816 F. Supp. at 673-74; see also Matthews v. Morales, 23 F.3d 118 (5th
United States v. Neighbors, 2012 WL 2449865, at *1 (D. Kan. 2012); see also Cox v. Fluery, 2009 WL
3011221, at *5 (W.D. Mich. 2009) (“A prisoner has no right under federal law to compel or prevent a transfer to
another facility.”); Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan. 1986) (“Even though a transfer may relieve
plaintiff’s anxieties, clearly a violation of the women’s rights would be at issue.”).
Bell v. Wolfish, 441 U.S. 520, 547 (1981).
KDOC has determined that the transfer of Michelle to a female facility would give rise to safety
and security concerns. The Court has no reason to upset that determination. 47
The Defendants have an obligation to treat Lamb’s gender dysphoria, but they are not
obligated to treat it in the specific manner that Lamb prefers. Gender dysphoria is a sensitive and
highly debated topic in today’s society, and if she were not in prison, Lamb would be free to seek
whatever treatments and lifestyle changes that she felt were necessary. But she is not free: she is
serving three consecutive life sentences for kidnapping and murder. And to the extent that the
treatment she is receiving falls of short of what she feels that she needs, such limitations, even if
restrictive or harsh, “are part of the penalty that criminal offenders pay for their offenses against
IT IS THEREFORE ORDERED that Defendant Paul Corbier’s Motion for Summary
Judgment (Doc. 35) is GRANTED.
IT IS FURTHER ORDERED that Defendant Corizon Health Services’s Motion for
Summary Judgment (Doc. 38) is GRANTED.
IT IS FURTHER ORDERED that Defendants Joe Norwood’s, Johnnie Goddard’s, and
the Kansas Department of Corrections’s Motion for Summary Judgment (Doc. 46) is
Had any of Lamb’s claims survived summary judgment, the Court would note that Lamb’s cause of
action against KDOC would be barred by the Eleventh Amendment. KDOC is a state agency, and “[a]ctions
commenced pursuant to 42 U.S.C. § 1983 cannot be brought against the State of Kansas or any state agencies since
the state is not a person within the meaning of the Eleventh Amendment of the United States Constitution.” Lee v.
McManus, 589 F. Supp. 633, 638 (D. Kan. 1984); see also Murray v. Kan. Dep’t of Corrs., 2009 WL 1617664, at *3
(D. Kan. 2009) (“[B]ecause KDOC is a state agency and state agencies are not subject to suit under 42 U.S.C.
§ 1983, the Court must dismiss Plaintiff’s claims against KDOC brought pursuant to 42 U.S.C. § 1983.”).
Rhodes, 452 U.S. at 347.
IT IS FURTHER ORDERED that the Defendants’ Joint Motion to Stay Discovery
(Doc. 33) is DENIED AS MOOT.
IT IS SO ORDERED.
Dated this 6th day of July, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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