Kosilek v. Department of Corr, et al

Filing 626

Judge Mark L. Wolf: ORDER entered. In view of the foregoing, it is hereby ORDERED that: 1. The attached redacted version of Kosilek's Response is made part of the public record. 2. Unless and until otherwise ordered, defendant shall not serve on Kosilek's counsel the report for May 2013, to be filed pursuant to paragraph 2 (b) of the November 20, 2012 Order, as modified by the January 18, 2013 Memorandum and Order.(Hohler, Daniel)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHELLE L. KOSILEK,

Plaintiff,

v.

C.A. No. 00-12455-MLW

LUIS S. SPENCER, in his official
capacity as Commissioner of the
Massachusetts Department of
Correction,
Defendant
ORDER
WOLF, D.J.

May 29, 2013

The court has read Plaintiff Michelle Lynne Kosilek's Response
to the Court's May 3,

2012 Order and Defendant's April 30,

2013

Status Report, which was filed under seal ("Kosilek's Response").
A redacted version of that submission is being made part of the
public record.
Kosilek's Response demonstrates that plaintiff has violated
paragraph 2 (b)

of the November 20,

2012 Order,

which states in

pertinent part that, "Each report [of defendant Luis Spencer], and
the information it contains, may be provided by counsel to Kosilek
and those assisting counsel in this case, and may be used solely
for the purpose of monitoring and litigating matters in this case."
More specifically, Kosilek's Response reveals that in violation of
the November 20, 2012 Order Kosilek disclosed information contained
in Spencer's reports to a friend who serves as Kosilek's health
care proxy. In addition, also in violation of that Order, Kosilek

used

the

information

communicate

with

a

improperly

doctor

being

shared

with

consul ted

his

by

friend

defendant

as

to
a

possible candidate to perform the Sex Reassignment Surgery that the
court has ordered.
Kosilek's

Response

suggests

that

he

may

claim

a

lack

of

knowledge of the terms of paragraph 2(b) of the November 20, 2012
Order as a defense in any possible civil and/or criminal contempt
proceedings. Kosilek represents that he now "understand [s] that the
information contained in the DOC's status reports is confidential
and cannot be shared with or disclosed to any individuals other
than the parties to this case, their counsel and those acting at
counsel's direction." Aff. of Michelle Lynne Kosilek in Response to
the Court's May 3, 2013 Order
contempt

does

not

appear

~11.

Therefore,

be

necessary

to

a finding of civil
to

coerce

future

compliance with the Order Kosilek violated. In addition, contempt
proceedings

are

necessarily

time-consuming

and,

as

Kosilek

is

already serving a life sentence, even if justified, a finding of
criminal contempt may not be meaningful.
In order to provide the court an opportunity to consider how
to proceed in these circumstances, the defendant is being relieved
of his obligation to provide counsel
monthly

report

due

to

be

filed

for Kosilek a copy of the

on May

31,

Kosilek is admonished to understand that,
rei terated

in

Farmer

v.

Brennan,

2

" , [a] n

as

2013.

In

addition,

the Supreme Court

appeal

to

the

equity

jurisdiction conferred on federal district courts is an appeal to
the sound discretion which guides the determinations of courts of
equity.'"

511 U.S.

825,

847

(1994)

(quoting Meredith v.

Winter

Haven, 320 U.S. 228, 235 (1943)). As an injunction is an equitable
remedy, this means that future inequitable conduct by Kosilek could
threaten the injunction mandating Sex Reassignment Surgery that
Kosilek persuaded the court is necessary and appropriate in this
case. Cf. Cablevision of Boston, Inc. v. Pub. Improvement Comm'n of
the City of Boston, 38 F. Supp. 2d 46, 53 (D. Mass. 1999)

(citing

cases) .
In view of the foregoing,

it is hereby ORDERED that:

1. The attached redacted version of Kosilek's Response is made
part of the public record.
2.

Unless and until otherwise ordered,

defendant shall not

serve on Kosilek's counsel the report for May 2013,
pursuant

to

paragraph 2 (b)

of the

November 20,

to be filed

2012

Order,

as

modified by the January 18, 2013 Memorandum and Order.

~C'~~-e~~

UNITED STATES DISTRICT JUDGE

3

~

Case 1:00-cv-12455-MLW Document 625 *SEALED*

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REDACTED VERSlON

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHELLE LYNNE KOSILEK,
Plaintiff,
v.
LUIS S. SPENCER, in his official capacity as
Commissioner of the Massachusetts Department of
Correction,
Defendant.

)
)
)
)
)
)
)
)

)

)

)

Civil Action
No. 00-12455-MLW

FILED UNDER SEAL

------------------)
PLAINTIFF MICHELLE LYNNE KOSILEK'S
RESPONSE TO THE COURT'S MAY 3, 2013 ORDER AND
DEFENDANT'S APRIL 30, 2013 STATUS REPORT (REDACTED)
Plaintiff Michelle Lynne Kosilek ("Kosilek") submits this pleading: (I) to respond to this
Court's May 3,2013 Order and (2) to address the April 30, 2013 status report filed by defendant
Luis S. Spencer, Commissioner of the MA Department of Corrections (the "DOC"). The May 3,
20] 3 Order required Kosilek to: "file, under seal, an affidavit addressing: whether the referenced
email was sent on [her] behalf; if so, attaching a copy of the email; and, if so, seeking to explain
why the message did not constitute a violation of paragraph 2(b)" of this Court's November 20,
2012 Order. May 3, 2013 Order,

~

2. In compliance with the May 3, 2013 Order, Kosilek files

herewith an affidavit, as well as redacted versions of her affidavit and of this response, that the
Court may make part of the public record.
For the reasons stated in Part I, this Court should not enter a finding of contempt as to
Kosilek. For the reasons stated in Part II, however, the defendant is in violation of this Court's
orders of November 20, 2012 and January 18, 2013 and this Court should require compliance.

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REDACTED VERSION

I.

Plaintifrs Response to this Court's May 3, 2013 Order

A.

The Circumstances and Contents of Plaintiff's Email to Dr. _ .
I.

On November 20, 2012, this Court entered an Order requiring the defendant to

file monthly reports "describing the actions he has taken, and any progress he has achieved, in
preparation to provide Kosilek sex reassignment surgery promptly if the September 4, 2012
decision is affirmed." November 20, 2012 Order,

~

2(b). The Order further stated that "[e]ach

report, and the information it contains, may be provided by counsel to Kosilek and those
assisting counsel in this case, and may be used solely for the purpose of monitoring and litigating
matters in this case. Any disclosure of a report or the information that it contains which is not
authorized by this Order may be deemed a civil and/or criminal contempt." ld. Pursuant to this
Court's November 20, 2012 Order, plaintiff and her counsel have reviewed the DOC's monthly
status reports to monitor whether the DOC is making appropriate progress in preparing for her
surgery. See Michelle Lynne Kosilek's Affidavit in Response to the Court's May 3,2013 Order
("Kosilek AfC'),
2.

~~

9-10.

After reviewing the DOC's April 1,2013 status report, Kosilek learned that Dr.
was under consideration to perform her

, M.D. of

sex reassignment surgery ("SRS") in the event that this Court's September 4, 2012 Order is
affirmed. On April 3, 2013, Kosilek sent an email to Dr. _

and the following exchange

ensued:
April 3, 2013 email from Kosilek to Dr. _ : "Dear Dr. _ ,
I have been informed that you have been chosen to~
Please share our 0 inion about the necessity of _ _
with the Department of Corrections
and
, to avoid any more unnecessary delays.
My concern about delay is because of the six week wait between
treatments i f . is chosen over _ . Thank you very

2

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REDACTED VERSION

much. Looking forward to meeting with you. Sincerely, Michelle
Lynne Kosilek"
April 7, 2013 email response from Dr. _
to Kosilek (at 12:25
PM): "M: Thanks for you[r] email. You are correct, there is a need
pri~ersion
to
vaginoplasty and either
or
both
work well. However, I have not received any word from the
Department of Corrections, so I am reluctant to start giving you
specific advice until we have confirmation. I wil~ the neeeJed
information out as soon as 1 hear from them. Thx.~'
April 7, 2013 response from Kosilek to Dr. _
(at 2:04 PM):
"My impression was that the DOC told the court that they were
only waiting for a response from you to Dr. Groblewski on your
compensation, and that they are not considering any other surgeons
at this point. Thank you [f]or your response, and 1 will patiently
wait, as 1 have for 22 years! Sincerely, Michelle PS- This email is
coming to you through my friend who is also my Health Care
Proxy ..."

..

April 7,2013 response from Dr. _
to Kosilek (at 3:07 PM): "I
have been away for over a week, so there may be some hard-copy
correspondence waiting when 1 get back to the office on Tuesday.

Kosilek Aff.,

3.

~

'

8 and Exhibit B attached thereto.
, a licensed

Kosilek's emails were sent on her behalf by Dr.

, who has been a friend of Kosilek's for many

psychologist in private practice in

years and is her designated health care proxy. See Kosilek Aff., ~ 5. Dr. _

has established

and administers an email account in Kosilek's name that Kosilek uses from time to time to make
inquiry of experts in the field regarding issues in her treatment.

Kosilek first contacted Dr.

_ , a recognized specialist, with such an inquiry several years ago after SRS was
recommended by UMass consultants in 2006. Id.,
4.

~

7.

Plaintiff was generally familiar with the terms of the Court's November 20, 2012

confidentiality order.

She reached out to Dr. _

3

regarding the pre-surgical preparation

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REDACTED VERSION

necessary for her treatment, an issue of enormous concern to her particularly since this Court's
order of September 4,2012. Plaintiff has not communicated any of the confidential information
set forth in the DOC's status report to any other prisoner, or to anyone else, other than to Dr.
_

as necessary for communication with Dr. _ . Id.,
5.

'i! 4.

After receiving this Court's Order of May 3, 2013, Kosilek conferred with her

counsel regarding the November 20, 2012 confidentiality order. Kosilek Aff.,

'i!'i!

10-11. As a

result of that conference, Kosilek understands that she may not communicate with Dr. _

or

with anyone else identified by the DOC in a status report except through such protocols as may
be expressly approved by the DOC, or the Court, at such time as such person is officially
retained in connection with her treatment.

Id.

Kosilek will not attempt further direct

communications except pursuant to such protocols. Id.

B.

Plaintiff's Email Did Not Constitute A Violation of Paragraph 2(b) of the November
20,2012 Order.
6.

This Court's November 20, 2012 Order provides that: "Each report, and the

information it contains, may be provided by counsel to Kosilek and those assisting counsel in
this case, and may be used solely for the purpose of monitoring and litigating matters in this case.
Any disclosure of a report or the information that it contains which is not authorized by this
Order may be deemed a civil and/or criminal contempt." November 20, 2012 Order at 2.

i.

7.

Plaintiff's Communication With Dr. _ , Although Perhaps Not Of The Type
Or Content That Either The Court Or Counsel Envisioned, Was Made In Her
Good Faith Belief That She Was "Monitoring And Litigating Matters In This
Case."
Plaintiff actively monitors her own health care and treatment. Kosilek Aff.,

'i! 7.

Since the Court's September 4,2012 decision ordering surgery, she has been anxious about the
deferral of surgery and eager to have her procedure this year, in the event that the decision is

4

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REDACTED VERSION

affirmed. ld., ~ 12. She worries that the DOC will not make timely pre-surgery preparations,
including not only decisions regarding the logistics of which physician is to be retained to
perform the surgery, where it will take place, transport, etc., but also regarding a pre-surgical
plan to prepare her physically. ld. Among other things, plaintiff is concerned (apparently
validly so) that the need for

prior to surgery, a multi-month treatment

process, may substantially delay her surgery. ld.,

~

18. In early January 2013, Plaintiff had

brought this issue to the attention of the DOC through her long-time treating staff clinician Mark
Burrowes, but received no response. 1 ld., ~ 13.

8.

was the subject

The need for a pre-surgical plan addressing

of plaintiffs April 3,2013 email to Dr. _ . Indeed, Dr. _
confirming

responded to plaintiffs email,

is a medically necessary pre-surgery

or

or _

procedure. Plaintiff is concerned that such

delay her surgery because these treatments take time. Kosilek Aff.,

could materially
~

18.

often requires several treatments, with up to a six-week wait in between treatments to determine
efficacy by ruling out

. ld. The lack of response from the DOC has increased her

anxiety and frustration that the proper pre-surgery preparations are not (and seemingly would not
be) taking place without her bringing it to the DOC and Dr. _ ' s attention. ld., ~ 17-18.

ii.

9.

The Communication Did Not Apparently Contravene Any Of The Concerns
Articulated By The Court Or Defendant When The Order Was Entered.
In seeking a confidentiality order, defendant argued that "if information

identifying possible surgeons and surgery locations were leaked to members of the public, it
could adversely impact the willingness of surgeons and facilities to agree to participate in the
1 Plaintiffreceived confirmation as earl as December 18,2012 from GlD s ecialist D r . .
hat plaintiff
would "definitely require
prior to surgery. See Kosilek
AfL ~ 13 and Exhibit C attached thereto. Plaintiff forwarded Dr.
etter to DOC officials Drs. Groblewski,
Weiner and Deiner on January 15,2013. Id.

5

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REDACTED VERSION

surgery ...." Defendant's Reply to Plaintiffs Response to the Court's November 9,2012
Memorandum and Order and to Defendant's Submission of November 2,2012 at II. According
to the Court, "[tjhis was the sole reason the court allowed the monthly reports to be filed under
seal." See January 18, 2013 Memorandum and Order at 2; November 19, 2012 Hearing Tr. at
111:15-113:17.
10.

The tenor of Dr.

_'s

responses suggests that plaintiff's email did not, in fact,

harass or embarrass Dr. _ , nor has it apparently affected his willingness to perform the
surgery. Indeed, his response suggests that he viewed Kosilek's email as an ordinary course,
quotidian doctor-patient communication intended to address topics of concern to a patient
progressing towards a surgical procedure.
II.

As the Court observed, "the plaintiff [has] a legitimate interest in knowing what's

being done and bringing to my attention whether there's any possible basis for contempt of my
order." November 19,2012 Hearing Tr. at 112:22-25. The Court rejected defendant's
contention that the Court would be best able to monitor the DOC's surgery preparation process,
stating: "I actually I don't think I am .... this is a place where the adversary process would need
to work." Id. at 112:6-10. At the November 19,2012 hearing, the Court articulated that its
"order placing [the monthly reports] under seal, orders parties not to disclose the information. It
would mean that [Kosilek] can't tell another prisoner what's in the report." Id. at 120:22-121 :5.
In compliance with the Court's directive, Kosilek has not disclosed any report or any information
contained in any report to other prisoners or unauthorized individuals. A fair gloss on plaintiffs
exchange with Dr. _

is that she was "monitoring" the litigation in order to "bring]'] to [the

court's] attention" deficiencies in the DOC's progress in making preparations for her surgery so
that it may take place "promptly."

6

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iii.

Kosilek's Conduct Does Not Warrant A Finding Of Civil Or Criminal Contempt
12.

The circumstances do not merit a finding of civil or criminal contempt. "Civil

contempt is a forward-looking penalty meant to coerce compliance" whereas criminal contempt
"punishjes] past noncompliance."

Hawkins v. Dep 't of Health & Human Servs. for New

Hampshire, Comm'r, 665 F.3d 25, 32 (1 st Cir. 2012). To find civil contempt, a court must find
clear and convincing evidence that the putative contemnor "violated a clear and unambiguous
order that left no reasonable doubt as to what behavior was expected and who was expected to
behave in the ind icated fashion." In re Grand Jury Investigation, 545 F.3d 21, 25 (1st Cir. 2008)
(internal citation omitted). "[Ajny ambiguities or uncertainties in such a court order must be
read in a light favorable to the person charged with contempt." Id.

"The court retains the

authority to eschew the imposition of a contempt sanction if it deems such eschewal to be in the
interests of justice in the particular case." Id.; see Langton v. Johnston, 928 F.2d 1206, 1221-23
(1 st Cir. 1991) (affirming denial of civil contempt when, despite noncompliance with court's

order, defendant had made good-faith efforts to comply).
13.

Criminal contempt proceedings are held when the "subject of an order" "willfully

flout]s]" or "majkes] a deliberate decision to refuse a court order." AngioIrynamics, Inc. v.

Biolitec AG, No. 09-CY-30I8I-MAP, 2013 WL 1567739, at *6 (D. Mass. Apr. 11, 2013).
Courts require evidence of willfulness in order to find criminal contempt. See, e.g., N.L.R.B. v.

Hosp. San Francisco, Inc., 989 F.2d 484, at *2 (1st Cir. 1993) ("As this is a proceeding in civil,
rather than criminal, contempt, the Board need not establish willfulness or bad faith.").
14.

In this case, the Court's order did not "clearjly] or "unambiguous[ly]" proscribe

the conduct that occurred. The Order stated that "[ejach report, and the information it contains,
may be provided by counsel to Kosilek ... and may be used solely for the purpose ofmonitoring

7

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REDACTED VERSION

and litigating matters in this case." November 20, 2012 Order,

~

2(b) (emphasis added). Here,

Plaintiff used the information solely "to monitor and litigate matters in this case," even though
the manner in which she did so may have been outside the contemplation of the Court and
counsel. Plaintiff contacted Dr. _ , discussed in the reports as the likely surgeon to perform
her surgery, in furtherance of the litigation and to monitor the progress of the DOC in making
preparations for her surgery. In these circumstances, a civil contempt finding will not lie. See
United States v. Saccoccia, 433 F.3d 19, 29 (I st Cir. 2005) (affirming denial of civil contempt

when "the words of the court's order [did not] clearly and unambiguously forbid[] the precise
conduct on which the contempt allegation [was] based"; the Order "could have been interpreted

in various ways"; and "there was ambiguity about what the Order required.") (emphasis in
original); Langton, 928 F.2d at 1220 (1st Cir. 1991) (vsubstantial'' and "good faith effort[s] at
compliance" with a court order "can avert a finding of [civil] contempt"); In re Grand Jury
Investigation, 545 F.3d at 27 (attorney "had not deliberately violated a known sealing order" and

thus "extreme remedy" of civil contempt was not proper).
15.

_'s

Moreover, no apparent harm has resulted to the process established by the Court

to allow the DOC to implement a confidential plan for surgery. Dr.

email response

shows no reluctance to participate. Rather, his responses both voluntarily provide information
about the process and state that he is expecting confirmation of his role from the DOC. See In re
Grand Jury Investigation, 545 F.3d at 27 (refusing to find contempt where no "proceeding had

been prejudiced as a result" of the disclosures).
16.

Moreover, there is no further risk of non-compliance. Since this Court's May 3,

2013 Order, plaintiff has conferred with her counsel; understands that she may not contact Dr.
_ , or any other individual identified in the DOC status reports, other than according to such

8

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REDACTED VERSION

protocol as may be established by the Court, the DOC or its counsel; and will not do it again.
Kosilek Aff., ~~ 10-11. After conferring with counsel, Kosilek attests that she will not further
contact Dr. _
_

until a formal relationship has been established and the DOC confirms that Dr.

has been officially retained to perform her surgery. ld., ~ 10. Plaintiff will only contact

the selected surgeon through such protocol as shall be established by the Court or the DOC. ld.
No further measures need to be taken to ensure compliance.

See Hawkins, 665 F.3d at 32

(district court appropriately found no additional measures were necessary to ensure compliance
with decree). As this Court has noted, it is quite "preposterous" that Kosilek would do anything
to intentionally jeopardize the "surgery that [s]he [has] spent 20 years of [her] life dedicating
[her]selfto get." See November 19, 2012 Hearing Tr. at 113:5-10.
17.

Because plaintiffs conduct resulted from a misunderstanding of this Court's

Order, and not from a conscious or wilful disobedience, a finding of criminal contempt is not
proper. United States v. Mourad, 289 F.3d 174, 180 (I st Cir. 2002) ("To convict a defendant of
criminal contempt under 18 U.S.c. § 401(3), the government must prove beyond a reasonable
doubt that the defendant willfully violated a lawful order of reasonable specificity.") (emphasis
added); United States v. Wefers, 435 F.2d 826, 829 (I st Cir. 1970) (finding criminal contempt
conviction not supported because of the "absence of direct evidence that Wefers intentionally
violated the order" and defendant's "subjective intent" and belief that the court order was not
directed towards him).
18.

Accordingly, this Court should not enter a finding of contempt as to Kosilek.

9

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II.
Defendant Spencer Has Violated the Conditions Of The Stay By Failing To "Take
Forthwith All Of The Actions Reasonably Necessary To Provide Kosilek Sex Reassignment
Surgery As Promptly As Possible If The September 4, 2012 Decision Ordering Such
Treatment Is Affirmed."
19.

On November 20, 2012, the Court issued an order allowing defendant's Motion to

Stay Execution of Final Judgment Pending a Decision on Defendant's Appeal pursuant to two
conditions: (I) that "Defendant shall take forthwith all of the actions reasonably necessary to

provide Kosilek sex reassignment surgery as promptly as possible if the September 4, 2012
decision ordering such treatment is affirmed"; and (2) that Defendant shall file monthly reports
"describing the actions he has taken, and any progress he has achieved, in preparation to provide
Kosilek sex reassignment surgery promptly if the September 4, 2012 decision is affirmed."
November 12,2012 Order, ~ 2 (emphasis added). Prior to granting the stay, the Court cautioned
defendant that "one of the key issues for me is to assure, if I grant the stay, that the Department
of Corrections really is taking forthwith, which means right now ... the steps necessary to
provide that surgery ... and not tell me, if and when I'm affirmed in my decision, 'It's going to
take us a couple of years to figure out how to do this surgery.'" November 19,2012 Hearing Tr.
at 108-109. Defendant's counsel stated that defendant understood. [d. at 109:25.
20.

Following entry of the November 20, 2012 Order, defendant filed two status

reports, both of which continued the defendant's longstanding pattern of foot-dragging and delay.
Plaintiff filed a response and, on January 18, 2013, "concerned that the pattern of resistance and
delay regarding adequate medical care for transsexual prisoners ... may be continuing," this
Court entered an order requiring defendant to provide "more detailed monthly reports, signed
under oath by [Commissioner] Spencer, in order to provide the information necessary for the
court to monitor compliance with the November 20, 2012 Order and to determine whether there

10

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REDACTED VERSION

is any possible willful disobedience of it that should be addressed."

January 18, 2013

Memorandum and Order at 5-6.
21.

Thereafter, defendant filed three status reports (on January 31, February 28, and

April I, 2013) that showed evidence of progress. In brief, these status reports showed that
defendant had: (1) found a Massachusetts hospital suitable for plaintiff's SRS; (2) identified Dr.
_

as an appropriate surgeon; (3) spoken to the MA Board of Registration in Medicine about

an appropriate credentialing mechanism for an out-of-state surgeon; and (4) begun taking steps
to address security and logistical concerns at the hosting hospital. Thus, after years of claiming
that SRS was impossible because of insurmountable difficulties transporting Kosilek out-of-state
for surgery, within three months of the Court's January 18, 2013 Order, defendant found a
potential solution for those difficulties and a way in which Kosilek can receive surgery in a
secure and nearby facility.

That potential solution, although a very positive development,

underscores the contumacy with which the defendant has approached this procedure for the past
seven years.
A.

Although A Solution Is In Sight, Substantially More Needs to Be Done to Prepare
Plaintiff For Surgery.

22.

Defendant's February and March status reports identified several outstanding

issues, among many others, that need to be addressed before defendant has taken "all of the
actions reasonably necessary to provide Kosilek sex reassignment surgery as promptly as
possible."
23.
Dr. _

The March status report (filed April 1,2013) stated that "ADC Weiner contacted
on March 27,2013 to discuss the logistics and financial requirements concerning SRS,

if he were selected as the surgeon to perform the SRS. He is awaiting a return phone call from
Dr. _ . " April 1, 2013 Status Report, ~ 8.
11

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24.

Since that report, defendant has taken no apparent steps to follow-up with Dr.

_ . Dr. _ ' s email response to plaintiff, dated April 7, 2013, confirmed both that (1)
Kosilek has a need for

prior to surgery and (2) Dr. _

has not heard

further from the DOC on any matter. It stated in pertinent part:
You are correct, there is a need to
~nversion vaginoplasty and either
or
. . - . - both work well. However, I have not received
any word from the Department of Corrections, so 1 am reluctant to
start giving you specific advice until we have confirmation. I will
get the needed information out as soon as I hear from them.
Kosilek Aff.,

~

25.

8 and Exhibit B attached thereto.
Contrary to defendant's report stating the DOC is awaiting Dr. _ ' s reply, Dr.

_ ' s emails suggest that the DOC owes Dr. _
Dr. _

a response. The subsequent email from

of the same date again states he is waiting to hear from the DOC: "I have been away

for over a week, so there may be some hard-copy correspondence waiting when I get back to the
office on Tuesday." Id.
26.

The February 28, 2013 status report states that the DOC contacted the

Massachusetts Board of Registration in Medicine regarding the required licensing and
credentialing process for an out-of-state physician seeking to perform surgery in a Massachusetts
hospital. Defendant reports that this process will take between three and six months. February
28, 2013 Status Report, ~ 8. In its April 1, 2013 report, when the DOC identified Dr. _

as

the likely surgeon to perform plaintiffs SRS, it stated, without more, that: "[i]t appears that Dr.
_

may be facilitated by _

's credentialing and privileging at

] recommendation of him." April 1,2013
Status Report,

~

6.

12

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27.

Now, in mid-May, the DOC apparently has yet to initiate the multi-month

licensing process for its identified surgeon, Dr. _ , despite reporting in its most recent April
30, 2013 status report, that Dr. _

has not "identified any medical obstacles to performing

the surgery, including hospital credentialing and privileging." April 30, 2013 Status Report, ~ 5.
28.

The April 1, 2013 report also states that on March 20, 2013, DOC Deputy

Commissioner Peter Pepe met with
to "d iscuss security concerns and logistics" if
. April 1,2013 Status Report, ~ 9.

plaintiff's surgery were to take place at

As a result of the meeting, the DOC identified "[a] number of questions regarding security at the
hospital remain[ing] to be answered, including whether the DOC will be provided with access to
hospital staff rosters to help ensure that no unauthorized hospital personnel gain access to inmate
Kosilek." ld., ~ 14. The report advised that "additional meetings with hospital ~
will be needed to further discuss pre- and post-surgery logistics" should Kosilek's
surgery take place at

. ld.,

~

15. Since the March 20, 2013 meeting, no

apparent follow-up action to further address security concerns and/or develop a security plan for
pre- and post-surgery has taken place.
29.

Thus, defendant has yet: (\) to take steps to officially retain Dr. _

plaintiff's surgery; (2) to secure officially

to perform

as the location where

plaintiff's surgery will take place; (3) to initiate the licensing and credentialing process for Dr.
_ ; (4) to obtain a pre-surgery plan that details a timeline and steps that need to be taken to
prepare plaintiff for her surgery, which, based on recent email correspondence between plaintiff
and Dr. _ , appears, at a minimum, to include the multi-month process o f _

13

Case 1:00-cv-12455-MLW Document 625 *SEALED*

Filed OS/23/13 Page 14 of 17
REDACTED VERSION

_ ; and (5) to follow-up with

to address any remaining security

questions and concerns and develop both a pre- and post-surgery security plan.

Notwithstanding All Of These Outstanding Issues, Defendant's April 30, 2013
Status Report Indicates No Progress Whatsoever.

B.

30.

On January 18, 2013, this Court ordered defendant to provide "more detailed

monthly reports." January 18, 2013 Order at 6. Notwithstanding that order, Defendant's most
recent status report filed on April 30, 2013 fails to provide detail regarding any substantive
progress since its last report submitted on March 29, 2013. The bewildering single substantive
paragraph states only: "ADC Weiner has advised me that he has had had further positive
conversations with

,and.
.

Neither doctor has identified any

medical obstacles to performing the surgery, including hospital credentialing and privileging."
April 30, 2013 Status Report, ~ 5. The substantive update ends here. Defendant does not explain
why he is not taking steps "forthwith" to initiate the licensing process for Dr. _ ; and
initiating the credentialing and privileging process with Dr. _
place at

so that the surgery can take

. Defendant provides no additional detail on next steps, meetings,

financial requirements, or any obstacles that would delay initiating the credentialing process.
31.

As credentialing and privileging is a several month process, any unreasonable

delay would not comport with this Court's November 20,2013 directive that defendant "prepar[e]
to provide Kosilek sex reassignment surgery promptly."

To comply with this "clear and

unambiguous" order, defendant should supplement its April 30, 2013 report with its planned next
steps. If defendant offers no good faith reason to delay the credentialing and privileging process,
this Court should order defendant to begin such processes immediately.

14

Case 1:00-cv-12455-MLW Document 625 *SEALED*

Filed 05/23/13 Page 15 of 17
REDACTED VERSION

32.

Similarly, Dr. _ ' s email suggests that implementation of pre-surgical

treatment may be a many month process. This Court should order the DOC to retain a surgeon
and to work with the selected surgeon to develop a pre-surgical plan that details a timeline and
steps that need to be taken to prepare plaintiff for her surgery, including, at a minimum,
scheduling

treatments.

Simply confirming that "[njeither doctor has

identified any medical obstacles," meets neither the letter nor the spirit of this Court's November
20, 2012 and January 18, 2013 orders. See January 18, 2013 Order at 2 ("As the court repeatedly
told counsel for Spencer, 'forthwith' means 'right now."'),
C.

Given the First Circuit's Imminent Ruling, Defendant's Progress To-Date Likely
Will Not Allow Surgery to Take Place "Promptly."

" " iJ,',i>, , •. "0".; •

33.

""<'.. ~,l-.

Defendants' appeal of this Court's September 4,2012 decision ordering sex

reassignment surgery has been fully briefed and the First Circuit Court of Appeals heard oral
argument on April 2, 2013. An unofficial transcript of the argument is attached as Exhibit A to
the Affidavit of Frances S. Cohen in Response to the DOC's April 30, 2013 Status Report. It is
likely that the Court of Appeals' ruling will be forthcoming within the next few months.
34.

Given the relative imminence ofthe First Circuit's ruling, the defendant's lack of

progress on at least two already-identified pre-surgery issues is unsatisfactory. First, the
licensing and credentialing process for Dr. _ , would at a minimum take three months. And,
second, pre-surgery treatments may be a multi-month process. See Kosilek Aff., 'il18.
Defendant has ignored all of plaintiffs efforts, beginning in January 2013, to alert him to
medically necessary pre-surgery requirements. See Kosilek Aff., 'iI'iI 13-17. Most recently, in
March 2013, plaintiff requested that DOC Health Services begin

treatment in

preparation of her SRS. Id., 'illS. On March 21,2013, the DOC denied plaintiffs request,
stating the DOC's "legal team [has] no court order to start your _ . " Id., Exhibit D. If
15

Case 1:00-cv-12455-MLW Document 625 *SEALED*

Filed 05/23/13 Page 16 of 17
REDACTED VERSION

defendant insists on waiting for a court order for every necessary element of pre-surgical
preparation, he will be in flagrant disregard of this Court's orders. See AngioDynamics, Inc.,
2013 WL 1567739, at *6 ("[O]nce the subject of an order willfully refuses to meet the court's
order, criminal contempt has been committed ....").
35.

Given defendant's substantially slowed rate of progress, it seems highly unlikely

that either of these two steps (among many others) will be completed within the time frame
established by the Court. Defendant's conduct does not comport with this Court's admonition to
defendant that it "expect]s] there to be a good faith, energetic effort" to take all steps reasonably
necessary to prepare for providing the SRS so that SRS can be provided promptly should the
DOC's appeal be ultimately unsuccessful. November 19, 2013 Hearing Tr. at 113: 14.
36.

Accordingly, Kosilek asks that this Court order the following, as well as any other

relief it deems proper:
A. require Defendant to confirm arrangements with either Dr. _

or such other

appropriate professional as the DOC may select as appropriate to perform
Kosilek's surgery if this Court's September 4,2012 decision is affirmed;
B. require Defendant to confirm arrangements with the hosting hospital;

C. begin the licensing, credentialing and privileging process for the selected surgeon;
and
D. obtain and implement a pre-surgical plan for Kosilek.

16

Case 1:00-cv-12455-MLW Document 625 *SEALED*

Filed 05/23/13 Page 17 of 17
REDACTED VERSION

Dated: May 23,2013

Is/Frances S. Cohen
Frances S. Cohen (BBO No. 542811)
Jeff Goldman (BBO No. 660870)
Christina Chan (BBO No. 677703)
BINGHAM MCCUTCHEN LLP
One Federal Street
Boston, Massachusetts 02110
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Joseph L. Sulman (BBO No. 663635)
David I. Brody, Esq. (BBO No. 676984)
Law Office of Joseph L. Sulman, Esq.
185 Devonshire Street, Suite 502
Boston, MA 02 110
Phone: [phone]
Fax: [phone]
[e-mail]

Attorneys for the PlaintiffMichelle Lynne
Kosilek

CERTIFICATE OF SERVICE
I, Frances S. Cohen, hereby certify that this motion was served on all counsel of record
by UPS mail on May 23,2013.
Is/Frances S. Cohen
Frances S. Cohen

17

Case 1:00-cv-12455-MLW Document 625-8 *SEALED*

Filed OS/23/13 Page 1 of 5
REDACTED VERSION

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHELLE LYNNE KOSILEK,
Plaintiff,

v.
LUIS S. SPENCER, in his official capacity as
Commissioner of the Massachusetts Department of
Correction,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action
No. OO-12455-MLW

FILED UNDER SEAL

-----------------)
AFFIDA VIT OF MICHELLE LYNNE KOSILEK IN RESPONSE TO THE
COURT'S MAY 3, 2013 ORDER (REDACTED)
Michelle Lynne Kosilek ("Kosilek") deposes and says as follows:

I.

I make this affidavit in response to this Court's May 3, 2013 Order

directing that I file an affidavit addressing "whether the referenced email [in paragraph 6 of
Commissioner Spencer's April 30, 2013 affidavit] was sent on [my] behalf; if so, attaching a
copy of the email; and, if so, seeking to explain why the message did not constitute a violation of
paragraph 2(b) [of the November 20,2012 Order]."

2.
on my behalf by Dr.

3.
was employed at

A/75571594I

The emails were sent

I authored two emails to Dr.

, my longtime friend and designated Health Care Proxy.

Dr. _ , a licensed psychologist, was

• • • • • • whilel

f r o m _ . Dr. _

is currently in private

Case 1:00-cv-12455-MLW Document 625-8 *SEALED*

Filed OS/23/13 Page 2 of 5
REDACTED VERSION

practice in

. I did not share a copy of either the DOC's April 1, 2013 report with

Dr. _ , or of any other status reports.

4.

I have not disclosed any of the information contained in any of the DOC's

status reports to any other inmates or to anyone other than Dr. _ .

5.

Dr. _

has been my health care proxy since February 8, 2013. A true

and accurate executed copy of the Massachusetts Health Care Proxy form is attached hereto as
Exhibit A.

6.

Dr. _

has established an email account for me:
. Through her, I use the email account to communicate with

medical experts regarding my medical condition.

7.

In the past several years, I have regularly contacted qualified health care

providers in the United States with inquiries about my mental health condition and sexual
reassignment surgery. My first contact with Dr. _

was several years ago after sexual

reassignment surgery was first recommended for me in 2006.

8.

On April 3,2013, Dr. _

used my email account to contact D r . _

on my behalf. A true and accurate copy of the emails sent from that email account (by Dr.
_ ) to Dr. _ , as well as the response emails sent by Dr. _

to this email account are

attached hereto as Exhibit B.

9.
report, was that Dr. _

My belief, based on my review of the DOC's recent April 1, 2013 status
was the physician who would be selected by the DOC to perform my

sex reassignment surgery if this Court's September 4,2012 decision is affirmed.

2
A175571594I

Case 1:00-cv-12455-MLW Document 625-8 *SEALED*

Filed 05/23/13 Page 3 of 5
REDACTED VERSION

10.

Subsequently, I conferred with my counsel and I now understand that 1

cannot contact Dr. _ , or any other individual identified in the DOC status reports, other than
according to such protocol as may be established by either the Court, or the DOC. 1 will not
further contact Dr. _
that Dr. _

until a formal relationship has been established and the DOC confirms

has been officially retained to perform my surgery.

11.

1 have conferred with my counsel and understand that the information

contained in the DOC's status reports is confidential and cannot be shared with or disclosed to
any individuals other than the parties to this case, their counsel and those acting at counsel's
direction.

12.

I have been very anxious and concerned about when my surgery will take

place and about any delays that may occur.

13.

1 have been attempting to alert the DOC to the pre-surgical requirement of
for several months since early January, 2013. Dr. _ ' s confirmation

reinforced a prior December 18, 2012 letter I received from 0
confirmed the necessity of

which also

before sex reassignment surgery. On January 15,

20 I3, I had given Mark Burrowes, my long-time UMass staff treating clinician, a copy of Dr.
_ e t t e r . Mr. Burrowes then emailed that letter to DOC Drs. Robert Deiner, Thomas
Groblewski and Lawrence Weiner shortly thereafter. A true and correct copy of the December
18, 2013 letter form Dr._is attached hereto as Exhibit C.

14.

On February 8, 2013, I sent a follow-up letter to UMass referral

management nurse Kathleen Wiwatoski, inquiring about the need for pre-operative_
This letter also went unanswered.
3
A175571594.1

Case 1:00-cv-12455-MLW Document 625-8 *SEALED*

Filed 05/23/13 Page 4 of 5
REDACTED VERSION

15.

In March 2013, I also requested that DOC Health Services start my

treatment of

in preparation of my sex reassignment surgery should the

District Court's September 4,2012 Order be affirmed. On March 21, 2013, the DOC denied my
because the DOC's "legal team [has] no court order to start your

request for

_ . " A true and correct copy of the March 21,2013 DOC Health Services "Medical
Results Notice" detailing the denial o f _ is attached hereto as Exhibit D.

16.

Thereafter, I sent the April 3, 2013 email to Dr. _ . Shortly after

sending my email, on April 6, 2013, I notified the DOC by mail that I had contacted D r . _
to try to prevent further delays in my preparations for surgery. A true and accurate copy of the
April 6, 2013 letter to the DOC is attached hereto as Exhibit E.

17.

I have received no response from Drs. Deiner, Weiner or Groblewski since
or any indication that steps would be taken to

January 15,2013 regarding
address this pre-surgical requirement.

18.

My concern is that such _

to advise the DOC that: (1) _

the DOC to delay my surgery. I asked Dr. _
_

is a rate-limiting step and would allow

is medically necessary before any reconstructive surgery to prevent
; (2) that i f . is the chosen method, a six-week delay

between treatments may be required to determine efficacy by ruling out _ ; and (3) that
up to six treatments may be required to prepare _

4
A1755715941

for surgery.

Case 1:00-cv-12455-MLW Document 625-8 *SEALED*

19.

Filed OS/23/13 Page 5 of

On a related matter, Talso have not seen, been evaluated or received

treatment from a GID-specializing endocrinologist for almost two years.

20.

In an October 14,2011 letter from Dr. Padrna Balasubramanian, my last

treating endocrinologist. Dr. Bulasubrarnanian stated she was not experienced enough to treat

GID condition and that Dr. Groblewski was in the process of seeking alternative clinical
coverage for my GIO care. A true and accurate copy of Dr. Balsubramanian's October 14,201
letter is attached hereto as

21.

h~.hibiLE.

To this date, I have not seen an endocrinologist since my treatment with

Dr. Balsubramanian was terminated in October 2011. The past practice relating to medical
management of hormones had been an appointment every three to four months. On April 9,
2013, my primary care provider, Nurse Practitioner Linda Booth, reported my blood lab values
were outside 0 f tolerance. A true and accurate copy of the lab results is attached hereto as
ExhLl)itG.

Executed under the penal ties of perjury this

5

I~~day of May, 2013.

Case 1:00-cv-12455-MLW Document 625-1 *SEALED*

Filed 05/23/13 Page 1 of 5

MASSACHUSEITS DEPARTMENT OF CORRECTION

HEALm SERVICES

MASSACHUSETTS HEALTH CARE PROXY

TO MY FAMILY, DOCTORS AND ALL THOSE CONCERNED WITH MY CARE:

1.

Appojptment of Agent

I, tf\1L.h<!\le L1l\l\d\oSllet~ of VY\assa~tttr ( Gt ~o±t Q[\§QV\l.L, (the
"Principal") being a competent adult at least eighteen (18) years of age, of sound mind and
under no constraint, duress or undue influence, hereby appoint the following person to be my
Health Care Agent (HIPAA Personal Representative under the Health Insurance Portability
Accountability Act of 1996, as the same may be amended from time to time), under the terms
of this document:
Name:
Address:

:-------­

In so doing, J intend to create a Health Care Proxy according to Chapter 20 I D of the
Massachusetts General Laws. In making this appointment, 1 am giving my Health Care Agent
the authority to make any and all health care decisions on my behalf, subject to any
limitations I state in this document, in the event that I should at some future time become
incapable of making health care decisions for myself.

2.

Alternate Agents (Optional)

1 hereby appoint the following person or persons in succession to serve as my Health Care
Agent in the event that my former Health Care Agent is not available, willing or competent to
serve, or is disqualified from acting on my behalf. Each Alternate Health Care Agent is to act
alone and in the order listed.
Alternate # I:
Name:
Address:

Alternate #2:

Name:

-----­

Address:

----­

_ __ ._------­
..

Phone: (h)
Email:

(wL

_

Phone: (b) _ _..._ _{w)_.
Email: - - - ­
..

_--_._­

--­

8080 J OF 5

Exhibit A

Case 1:00-cv-12455-MLW Document 625-1 *SEALED*

Filed OS/23/13 Page 2 of 5

MASSACHUSETI'S DEPARTMENT OF CORRECTION

HEALTH SERVICES

MASSACHUSETTS HEALTH CARE PROXY
3. Powers Given to Health Care Agent
I give my Health Care Agent fuJI authority to make any and all health care decisions for me,
including decisions about life-sustaining treatment, subject only to any limitations I state below.

My Health Care Agent will have the authority to act on my behalf it: when and for so long as a
determination has been made that I lack the capacity to make or to communicate health care
decisions for myself. This decision must be made in writing by the physician responsible for my care
according to accepted standards of medical judgment and the requirements of Chapter 2010 of the
Massachusetts General Laws.
The authority of my Health Care Agent will cease if my physician determines that J have regained
capacity. The authority of my Health Care Agent will recommence ifI later lose capacity.
I am to be notified of any determination that I lack capacity to make or communicate health care
decisions where there is any indication that I am able to comprehend this notice.
My Health Care Agent will make health care decisions for me only after consultation with my health
care providers and after full consideration of acceptable medical alternatives regarding diagnosis,
prognosis, treatment and their side effects.
My Health Care Agent will have the right to receive any and all medical information necessary to
make informed decisions regarding my health care, including relevant confidential medical
information that I would be entitled to receive.
My Health Care Agent will make health care decisions for me only in accordance with my Health
Care Agent's assessment of my wishes, including my religious and moral beliefs, or, if my wishes
are unknown, in accordance with my Health Care Agent's assessment of my best interests.
The decisions made by my Health Care Agent for me will have the same power as my own decisions
would have, if I were competent, over the decisions by any other person, including a person acting
pursuant to a durable Power of Attorney, except any limitation I set forth below or by specific Court
Order overriding this Health Care Proxy.
[f I object to a health care decision made by my Health Care Agent after I have been determined to
lack capacity by my physician, my decision will prevail unless it is determined by Court Order that I
lack capacity to make health care decisions.
I specifica~ly limit ~y HeaJthCare Agent's authority as follows:

no, \1w\I'\·s

\YI~-",,_liYi\~~ 0\1

.r ~

"

(\,\4-0£-:- ',Itt ~t(..,\S!<2v's' 9, f

Gtt\-J,.
--2L~(},1-l'ovLtUh~,~*.t ",,~js jt2 j\t1o,\y"f£\\V\ 11M I\f' 0.. 'QIl.fS \stl""t
_¥~~ rldl L r. uJ<JUt,~_A.\1.. i Y\ S'1A..l.1A 0 S 1+~~o.~*:k:J..!\ 1:'=:=:::::::==::=:::=
I

0 0;&'
(\."

I may revoke this Health Care Proxy by executing a later Health Care Proxy or by notifying my
Health Care Agent or health care provider orally or in writing or by any other act showing a specific
intent to revoke this Health Care Proxy.

80802

OF

5

Case 1:00-cv-12455-MLW Document 625-1 *SEALED*

Filed 05/23/13 Page 3 of 5

MASSACHUSEITS DEPARTMENT OF CORRF£TION

IlEAL TH SERVICES

MASSACHUSETTS HEALTH CARE PROXY
4.

IDPAA (Health Insurance Portability A~countabiUtyAct) Compliance

A. I authorize any physician, health care professional, dentist, health plan, hospital, clinic,
laboratory, pharmacy, or other covered health care provider, any insurance company, and any
health care clearinghouse that has provided treatment or services to me or that has paid for or
is seeking payment from me for such services, to give, disclose and release to my Personal
Representative (or Alternate), without restriction, all HIPAA protected health information,
including without limitation, past, present. or future medical and hospital records or
communications for all my individually identifiable health information, whether physical or
mental, as well as all information relating to the diagnosis and treatment of HIVI AIDSIARC,
sexually transmitted diseases, abortion, genetic testing, physical abuse, and substance abuse,
including drug or alcobol abuse, mental retardation, developmental disability, mental illness,
mental deficiency, psychiatric illness, and psychotherapy treatment.

B. I authorize my HIPAA Personal Representative (or Alternate) to request, receive, and
review the above information; to sign, seal, execute, and deliver such authorizations, releases,
or other documents as may be required; and, generally, to do all acts and take all steps which
in the judgment of my HIPAA Personal representative (or Alternate) are necessary,
convenient, or expedient. A copy of this HIPAA Health Care Proxy shall have the same
force and effect as the original.
5.

Signature of Principal.

I have this day attached a Statement of Personal Wishes to my Health Care Proxy and I
hereby sign my name to this Health Care Proxy in the presence of two witnesses.

Date:

80803

OF S

Case 1:00-cv-12455-MLW Document 625-1 *SEALED*

Filed 05/23/13 Page 4 of 5

MASSACHllS.:l-rs DEPARTMENT OF CORRF£TION
HEAL111 SERVICES

MASSACHUSETTS HEALTH CARE PROXY
5.

Witnesses:

We, the undersigned, have each witnessed the signing of this docwnent by the Principal or at
the direction of the Principal and state that the Principal appears to be at least eighteen years
of age, of sound mind, and under no constraint, duress or undue influence. Neither of us is
named as a Health Care Agent in this document.

Witnell8 1:
Signature:
Address:

Witness 2:
Signature:
Address:

6.

Statement of Health Care Agent and Alternates (Optional)

I have been named by the Principal as the Principal's Health Care Agent or as an alternate
Health Care Agent in this document.

I have read this document carefully and accept the appointment. I have had or plan to have a
discussion with the Principal about the Principal's health care wishes.
I am not an operator, administrator or employee of a hospital. clinic, nursing home, rest

home, Soldiers' Home or other heath care facility where the Principal is presently a patient or
resident or has applied for admission, or ifI am a person so described, 1 am also related to the
Principal by blood, marriage or adoption.
Health Care Agent:
Alternate Health Care Agent 1:
Alternate Health Care Agent 2:

80804

Of

5

_
_

Case 1:00-cv-12455-MLW Document 625-1 *SEALED*

Filed 05/23/13 Page 5 of 5

MASSACHUSETTS DEPARTMENT OF CORRECTION
HEALTH SERVICES

MASSACHUSETTS HEALTH CARE PROXY
STATEMENT OF PERSONAL WISHES

1-. ~i lt~4ign this form to offer my Health Care Agent guidance so that
he or she may make decisions based on an assessment of my personal wishes as well as
medical information provided by my physicians. My Health Care Agent has authority to
make such decisions in accordance with my Health Care Proxy and applicable Massachusetts
Law. This form is an expression of my wishes and not legally binding.

l,m,Lh?1le

1/there is no hope for my recovery and, in the opinion 0/ my physician, 1 will die without
life sustaining treaJltU!nl that only prolongs the dying process; I ask that my Health Care
Agent consider the foOowing expression ofmy wishes:
I.

Treatment should be given to maintain my dignity, keep me comfortable and relieve
my pain.

2.

If my heart stops beating I do/do Dot wish it to be restarted.

3.

If I stop breathing, I do/do not want to have a breathing tube put into my throat and
be connected to a breathing machine.

4.

My physician may/may not withhold or withdraw treatment that only serves to
prolong the dymg process. For instance:

-

A.

If I cannot drink, I do/d2.!!!U.want to receive liquids through a needle
placed in my vein unless it is necessary to keep me comfortable.

B.

If I cannot cat, I do/do not want a tube inserted in my nose, mouth, or
surgically placed to give
food.

C.

If I have an infection, I do/do not want antibiotics administered to prolong
my life without hope of rec~or cure unless necessary to keep me
comfortable.

me

-

5.

If possible, [ WOUld/would not like to die at home with hospice care, if needed.

6.

Unless necessary for my comfort, 1 would not prefer to be hospitalized.

7.

I do/do not want spiritual support. My faith tradition
spirit~1 contact person is
O~t

_"la.._

------- 9.
10.

5

. My
~who can be reached at

---~

~1~:tLno~~ ""''\.'ntA,\#, ~rl4.~ed-4a~.rl.l~~G\,+{'\\\ 'f\\a.~Of ~<A(~Ui(,.S.

((.M~

******** . \
OF

is\l<<~u.~l.\S4.l1Jl

If possible, I do/do not wish to be an organ donor.

,
80805

~(~

~-~'1)
Dare

Case 1:00-cv-12455-MLW Document 625-2 *SEALED*

Filed OS/23/13 Page 1 of 6

Chan, Christina
From:
Sent:
To:
Subject:

Michelle Lynne Kosilek
Wednesday, Ma 08,2013 11:26 AM
Pre-Op

1st of 4
---------- Forwarded message ---------­
From: Michelle Lynne Kosilek <
Date: Wed, A r 3,2013 at 3:38 PM
Subiect:
Pre-Op
To:

an_

DearDr._
I have been informed that ou have been chosen to do my surgery, Please share your opinion about the
necessity 0
with the Department of Corrections
to avoid any more unnecessary delays. My concern about delay is because of the s~
wait between treatments
chosen o v e r _
Thank you very much. Looking forward to meeting with you.
Sincerely,

Michelle Lynne Kosilek

i_s

1

Exhibit B

Case 1:00-cv-12455-MLW Document 625-2 *SEALED*

Filed OS/23/13 Page 2 of 6

Chan. Christina
From:

Sent:

Michelle Lynne Kosilek
Wednesda May 08, 2013 11:26 AM
I

To:

Subject:

re-Op

2nd of 4

----.----- Forwarded mcssa
From:
Date: Sun, Apr 7,2013 at 12:25 PM
Subject: Re:
Pre-Op
To: Michelle Lynne Kosi1ek <
M:

Thanks for you email. You are correct, there is a need to
prior to a penile inversion
vaginoplasty and e i t h e r _ o r
both work well. However, I have not received any word from the
Department of Corrections, so I am reluctant to start giving you specific advice until we have confirmation. I will get the
needed information out as soon as I hear from them.

..
Thx.

From: Michelle Lynne Kosilek
Date: Wednesday, April 3, 2013 3:38 PM
To:
Subject:
DearDr."
I have been informed that you have been chosen to do my surgery. Please share your opinion about the necessityo f "
with the Department of Corrections and~ to avoid any more
unnecessary delays. My concern about delay is because of the six week wait between tr~s chosenover

-

Thank you very much. Looking forward to meeting with you.
Sincerely,

Michelle Lynne Kosilek

••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Electronic Mail is not secure, may not be read every day, and should not be used for urgent or sensitive issues

Case 1:00-cv-12455-MLW Document 625-2 *SEALED*

Filed 05/23/13 Page 3 of 6

Chan, Christina
From:
Sent:
To:
Subject:

Michelle Lynne Kosilek
Wednesda .Ma 08, 2013 11:26 AM

re-Op

3rd of 4

---------- Forwarded message ---------­

From: Michelle Lynne Kosilek
Date: Sun, Apr 7, 2013 at 2:04 PM
Subject: Re:
Pre-Op
To:

My impression was that the DOC told the court that they were only waiting for a response from you to
Dr.Groblewski on your compensation, and that they are not considering any other surgeons at this point. Thank
you or your response, and I will patiently wait, as I have for 22 years!
Sincerely,
Michelle

ps- This email is coming to you through my friend who is also my Health Care Proxy ...
On Sun, Apr 7,2013 at 12:25 PM,
M:

Thanks for you email.
rior to a penile inversion
vaginoplasty and either
Jor
oth work well. However, I have not received any word from the
Department of Corrections, so I am reluctant to start giving you specific advice until we have confirmation. I will get the
needed information out as soon as I hear from them.
Thx.

-

From: Michelle Lynne Kosilek
Date: Wednesday, April 3, 2013 3:38 PM
To:
Subject:
Pre-Op
DearDr._
I have been informed that you have been chosen to do my surgery. Please share your opinion about the necessity of~
with the Department of Corrections a n d _ to avoid any more
unnecessary delays. My concern about delay is because of the six week wait between treatmentsif~s chosen over

-

Thank you very much. looking forward to meeting with you.

Sincerely,

Michelle lynne Kosi/ek

Case 1:00-cv-12455-MLW Document 625-2 *SEALED*

Filed OS/23/13 Page 4 of 6

**********************************************************
Electronic Mail is not secure, may not be read every day. and should not be used for urgent or sensitive issues

2

Case 1:00-cv-12455-MLW Document 625-2 *SEALED*

Filed 05/23/13 Page 5 of 6

Chan, Christina
From:
Sent:
To:
Subject:

Michelle Lynne Kosilek
Wednesday, May 08, 2013 11:27 AM

~pre-op

---------­ Forwarded message ---------­
From:
Date: Sun, Apr 7,2013 at 3:07 PM
Subject: Re:
Pre-O
To: Michelle Lynne Kosilek

I have been away for over a week, so there may be some hard-copy correspondence waiting when I get back to the office on
Tuesday. •
From: Michelle Lynne Kosilek
Date: Sunda ,April7, 2013 2:04 PM
To:
Subject: Re:
My impression was that the DOC told the court that they were only waiting for a response from you to Dr.Groblewski on your
compensation, and that they are not considering any other surgeons at this point. Thank you or your response, and I will
patiently wait, as I have for 22 years I
Sincerely,
Michelle

ps- This email is coming to you through my friend who

is also my Health Care Proxy...

On Sun, Apr 7,2013 at 12:25 PM,
M:
Thanks for you email. You are correct, there is a need t
prior to a penile inversion
both work well. However, I have not received any word from the
vaginoplasty and eithe~r
Department of Corrections, so I am reluctant to start giving you specific advice until we have confirmation. I will get the
needed Information out as soon as I hear from them.

..
Thx.

From: Michelle Lynne Kosilek
Date: Wednesday, April 3, 2013 3:38 PM
To:
Subject:
DearDr_

Case 1:00-cv-12455-MLW Document 625-2 *SEALED*

Filed OS/23/13 Page 6 of 6

I have been informed that you have been chosen to do my surgery. Please share your opinion about the necessity o•
• •t.vith the Department of Corrections and
to avoid any more
Is chosen over
unnecessary delays. My concern about delay is because of the six week walt between treatments If

-

Thank you very much. looking forward to meeting with you.

Sincerely,

Michelle lynne Kosilek

Electronic Mail is not secure, may not be read every day, and should not be used for urgent or sensitive Issues

**********************************************************
Electronic Mail is not secure, may not be read every day, and should not be used for urgent or sensitive issues

4th of 4

2

Case 1:00-cv-12455-MLW Document 625-3 *SEALED*

Filed OS/23/13 Page 1 of 1

December 18, 2012

Dear Michelle
I have spoken to a consultant regarding your questions. I will convey the answers I received. I
must preface this by saying that it's puzzling that you are receiving luporolide injections.... It's a very
costly way of blocking natal hormones. Do you know the rationale for administering this rather than
something more typical, e.g. Spironolactone? Are you receiving estrogen? What type? How is it
administered? I can ask a more specific question about hormones prior to surgery if you tell me
everything you are receiving currently.

\

-:::=:::=::::=-•••••

You will definitely require

• • • • • • • • Otherwise, there will be.

\

I hope this answers your questions...I'm happy to help!

Exhibit C

Case 1:00-CV-12455-MLW Document 625-4 *SEALED*

Filed 05/23/13 Page 1 of 1

Massachusetts Department of Correction
Health Services

Medical Results Notice
'RRECTION INSTITUTIONAL USE ONLY

KOSILEK, MICHELLE

W53865 _

MCI-NORFOLK

NAME:
ID NUMBER:

o-J.V.U.

-------

INSTITUTION:
DATE:

-----

,-------~-

J )~ I IJ /~

TIME:

J Jo~

Vi'A.lli"ilNG: This notice is for your information only. It may not be used to gain access to
HSU. Do not bring it up to the HSU control Desk. If you do so, a sick slip charge may apply,
and you will be put on the waiting list to be seen like all other sick slip requests.

~

I

This note is to inform you that the recent tests you had done were:

o VVithin the range of normal and no additional treatment is needed.
o Improved from previous tests.
o Not improved to the level needed.

Please continue to work on diet, exercise to best of your
ability, medication compliance and the other things we talked about during your visit. We will
discuss this further at your next chronic visit or as stated below.

[J Require additional testing. (see below) You will be scheduled for a follow-up appointment.

o Require follow up in health services.
o

(see below) You will be called up for your appointment.

HCV Treatment NOT Approved:
\!ViII not be in DOC system long enough to complete treatment
Not eligible at this time due to Disciplinary Report (will re-evaluate in 12 months)
C
Other
_

o
o

---1--------­

l3'1)ther:

NOTE:
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January 2009

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--------t::+t+:-+H---r-TAATfl--f':+i=r-

HSU Results Notice

8084

Exhibit D

Case 1:00-cv-12455-MLW Document 625-5 *SEALED*

Filed OS/23/13 Page 1 of 1

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10/14/201O'2iS@l31:00-cv-12455-MLW

DocumenJ!"f~5-6

*SEALED*

Filed

05/23/13ID:~~

laIDf21>f2

THE COM MONWEALTH OF MASSACHUSETn
EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVIC
DEPARTMENT OF PUBLIC HEALTH
LEMUEL SHATTUCK HOSPITAL
PaulO Rornary

Chief Executive Officer

October 14, 2011
Michelle Kosilek

clo Health Office
Box 43
Norfolk, MA 02056

Dear Michelle Kosilek:
Alter careful consideration, I have decided that it is best for you to receive your endocrinology care from a
more experienced GID provider. The issues involved in your medical care are very complicated, and I do
not have the expertise for treating this condition.
The UMass Correctional Health Medical Director, Dr. Thomas Groblewski, is in the process of arranging
alternative clinical coverage for your OlD care.

It has been my pleasure to try to serve you.

Sincerely,
rl~

\

'11\\'...AI'--._' ~.'

-~
"

~.,.

__-'

,I

Padma Balasubramanian, M.D.

cc:

Thomas Groblewski, MD (UMass Correctional Health Medical Director)
Ken Freedman, MD (LSH Medical Director)

~O

I.(~ 0 ,\'
~~ C??:; 1
•

REC'E1VED OCT 1 77.0"

LEMUEL SHAT'"UCK HOSPITAL· 170 MORTON STREET· JAMAICA PLAIN, MASSACHUSETTS 02130·3782 • 617·522·8110

Exhibit F

Case 1:00-cv-12455-MLW Document 625-7 *SEALED*

Filed OS/23/13 Page 1 of 1

Massachusetts Department of Correction

Health Services

Medical Results Notice

KOSILEK, MICHELLE
W53865 _

MCI-NORFOLK

110 NUMBER:

_

CORRECTION INSTITUTIONAL USE ONLY

_ _ _ INSTITUTION:

0.0.8

DATE:

Lt l '1)

--::--_

I),.

TIME:

'\

P/'r-­

WARNING: This notice is for your information only. It may not be used to gain access to
HSU. Do not bring it up to the HSU control Desk. If you do so, a sick slip charge may apply,
and you will be put on the waiting list to be seen like all other sick slip requests.

Ci Jmproved from previous tests.
CJ Not improved to the level needed. Please continue to work on diet, exercise to best of your
ability, medication compliance and the other things we talked about during your visit. We will
discuss this further at your next chronic visit or as stated below.

CI Require additional testing. (see below) You will be scheduled for a follow-up appointment.
Ll Require follow up in health services. (see below) You will be called up for your appointment.

o

HCV Treatment NOT Approved:
Will not be in DOC system long enough to complete treatment
o
Not eligible at this time due to Disciplinary Report (will re-evaluate in 12 months)
C=:J
Other
_

o

[] Other:

--------, -,---,,,------------­

NOTE:

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PROVIDER NAME:
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"

January 200Y
3084

_
.._-~-----,-

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HSU Results Notice

Exhibit G

Case 1:00-cv-12455-MLW Document 625-9 *SEALED*

Filed 05/23/13 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHELLE LYNNE KOSILEK,
Plaintiff,

v.
LUIS S. SPENCER, in his official capacity as
Commissioner of the Massachusetts Department of
Correction,
Defendant.

)
)
)
)
)
)
)
)
)

)
)
)

Civil Action

No. 00-12455-MLW

FILED UNDER SEAL

-----------------)
AFFIDAVIT OF FRANCES S. COHEN IN SUPPORT OF PLAINTIFF'S

RESPONSE TO THE COURT'S MAY 3, 2013 ORDER AND

THE DOC'S APRIL 30, 2013 STATUS REPORT

I, Frances S. Cohen, being duly sworn, deposes and states as follows:
1.

I am a member of the bar of this Court and the Commonwealth of Massachusetts

and of the firm Bingham McCutchen LLP, One Federal Street, Boston, MA 021 10.
2.

I have been lead counsel to Michelle Lynne Kosilek since this Court appointed

me early in 2000.
3.

My secretary prepared the attached transcript of the First Circuit Court of

Appeals' oral argument hearing for Kosilek v. Spencer, C.A. No. 12-2194, on April 2, 2013
(Exhibit A). An official recording of the argument is available on the First Circuit Court of
Appeals' website at: http://media.ca 1.uscourts.gov/fi les/audio/audiorss.php.
Executed under penalty of perjury this 23rd day of May, 2013.

Is/Frances S. Cohen
Frances S. Cohen

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed 05/23/13 Page 1 of 18

INFORMAL TRANSCRIPT

APPEALS COURT / FIRST CIRCUIT

ORAL ARGUMENT

APRIL 2, 20 I3

KOSILEK V. SPENCER
12-2 I 94
Before Judges Juan Torruella, Ojetta Thompson, William Kayatta

Judge Torruella: Good morning Mr. McFarland.

McFarland: Good morning your honors. Richard McFarland on behalf of the Commissioner of
Corrections and Luis S. Spencer. The Commissioner's appeal challenges the District Court's
determination that the failure to provide inmate Michelle Kosilek with sex reassignment surgery
constitutes deliberate indifference in violation of the Eighth Amendment. This appeal challenges
both the objective and subjective components of the district court's finding of deliberate
indifference. With regard to the objective components the District Court errs that as matter of
law determining that the Eighth Amendment requires that inmates receive minimally adequate
treatment that mandates that Ms. Kosilek receive treatment necessarily to cure her gender
dysphoria. The trial is undisputed that Ms. Kosilek receives GID treatment in the form offemale
hormones subs ....

Judge Thompson: When did Judge Wolf ever say anything about cure as opposed to adequate
treatment?

McFarland: Well, the judge talked about the fact that you are treating symptoms that is not
sufficient, so the judge clearly was indicating that you needed to resolve this disorder once and

AI75476287.\

Exhibit A

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed OS/23/13 Page 2 of 18

for all and the judge thought that by SRS according to the testimony would eliminate the
dysphoria and thus eliminate the threats of suicide on the part of Kosilek. So, in sense if you are
not addressing symptoms then you are curing the disorder. That was a large part of his...

Judge Thompson: But, the judge didn't make that finding, that's your spin on it. The judge
indicated that in order to treat underlying OlD which he said required this surgery that that was
what constituted adequate treatment, not that it was a cure.

McFarland: But, it is in a sense a cure, your honor. That's what the experts testified that by
providing Ms. Kosilek with the surgery that would cure the dysphoria which is the hallmark of
gender dysphoria.

Judge Thompson: But, if someone is suffering from cancer, if you provide them with
chemotherapy, that may cure the cancer, but it is also treating the cancer. And, it's adequately
treating the cancer as opposed to just giving them morphine to treat the pain.

McFarland: Well, this is very different. In this case, the evidence was clear that by giving Ms.
Kosilek the hormone treatments, laser hair removal and access to female clothing and canteen as
well as the psychotherapy there was an effective treatment for that disorder. The experts were all
in agreement that Ms. Kosilek had reduced significantly the depression, her irritability, her
anxiety. Those things were all reduced by the current treatment. In fact in 20 years there was
not one incident of self-injurious behavior, not one attempted self castration, not one attempted

2

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed 05/23/13 Page 3 of 18

suicide, in 20 years in MCI custody. Moreover, Michelle Kosilek was highly functional in the
prison. She was able to maintain numerous jobs throughout many, many years ofthe prison.

Judge Thompson: But, Judge Wolf made different findings offact based upon the conflicting
testimony of expert witnesses. I would just note that your brief doesn't even discuss our
standard of review when there's been complete find ings of fact with an opinion rendered by the
judge as to who is the more credible and which expert testimony should be accepted.

McFarland: Our position is that by expanding the definition of the adequacy of treatment for
individuals in prison this is become an issue oflaw. The judge, in effect, has used the Standards
of Care to establish what the constitutional minimums are for GID inmates or mental health
inmates.

Judge Kayatta: When you say the judge used the Standard of Care, wasn't it your own doctors
and their consultants and another qualified medical expert who all testified that there was a
substantial risk of serious harm, indeed, death, if the surgery were not provided and the trial
judge then find us a matter of fact that he credited that testimony and did not credit the opposite
testimony.

McFarland: It's clear that if the Standards of Care were to playa major role in this whole
decision. The judge discredited our experts, because they had some qualms with the Standards
of Care, that were being used to establish the minimum treatment in the Eighth Amendment, then

3

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed 05/23/13 Page 4 of 18

when the treatment according with Judge Wolf was that you must provide this individual, Ms.
Kosilek, with SRS ....

Judge Kayatta: What difference does it make what your experts said when the other experts
who are medically qualified you did not challenge a Daubert motion, their professional
credentials or the adequacy of their opinion and in accordance with the Standard of Care they
said something different than you are now telling us. We are obligated to defer to the District
Court's fact finding.

McFarland: We did file a Daubert motion in this case early on which was denied.

Judge Kayatta: But, you haven't appealed that.

McFarland: No, we haven't.

Judge Kayatta: So, it's not before us and we are now back to how can we set aside fact finding
by the District Court on this issue.

McFarland: We believe, your honor, that certainly when you are looking at a case that expands
the Eighth Amendment to new heights by placing new demands on the DOC or any DOC as to
the level of treatment required, it is an issue oflaw. Certainly, where an inmate has spent 20
years in prison and by all accounts is doing quite well, is able to maintain this dysphoria in
prison then that's typically a factor when you look at the community...

4

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed OS/23/13 Page 5 of 18

Judge Torrruella: When you say new heights, are there some circuits that have granted this
type of relief.

McFarland: A number of any circuit that is granted an order, a State to be provided with SRS.
There was a decision in the Fields case in the Seventh Circuit which talks about, which nullifies
a state statute in which prohibited the state DOC from giving inmates in their system hormones
and surgery. That decision did not say that, did not provide or order that inmates be given SRS.
The fact that in the Fields case the court found that providing the inmates with hormone
treatment was an effective treatment for their 010 which is the same thing happening to Ms.
Kosilek.

Judge Torruella: Changing the subject slightly, what do you have to say about your opponent's
and the District Court's challenge to your position about the security concern?

McFarland: Well, we believe that security concerns were made reasonably and they were not
influenced by fear of public controversy or political controversy. In fact, we have asked the
court to look specifically at the testimony of Commissioner Clarke who was the last person to
testify in this case, the court ordered him to testify and Commissioner Clarke who was new to the
system, new to the DOC, had spent three years as the Commissioner of Correction for the State
of Washington as well as fifteen years in the State of Nebraska. A highly experienced
correctional professional and the judge brought him in and said "give me your opinion, give me
your fresh opinion as to whether or not you think these are credible, reasonable security concerns

5

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed OS/23/13 Page 6 of 18

raised by those below you". And Commissioner Clarke spent time, he reviewed the record as
identified by plaintiffs counsel, he prepared a report and he testified. Based on his thirty-four
years of experience he came across as very similar concerns that were raised by those below you,
other commissioners and other staff people. He relied upon and he believed the testimony from
Supt. Bissonnette of the women's prison, he looked at the testimony of Luis Spencer who also
found that there was strong security concerns placing Ms. Kosilek back into the state of Norfolk
as an anatomical female, Supt. Bissonnette had strong concerns in her testimony about placing
Kosilek post-surgery within a female facility, concerns in affecting the climate of the majority of
the women there are victims of sex abuse and violent PST sufferers and she felt there was a large
concern that this would affect the climate.

Judge Kayatta: So, if a post-surgical transgender patient committed a serious crime in MA and
was convicted and turned over to your client's care and custody would they set her free or would
they have a place for her?

McFarland: A post-surgical transsexual who committed a crime?

Judge: Yes

McFarland: They would probably be sent to MCl Framingham, but of course the difference is
the notoriety of inmate, Ms. Kosilek, who was well known to the population at MCl Framingham
as someone who has killed a spouse, so that is also a factor that you may not have with another
individual, that doesn't have the same notoriety or the same impact on the facility. Supt.

6

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed 05/23/13 Page 7 of 18

Bissonnette talked about hearing from other female inmates and offenders in the prison who are
very concerned about having Ms. Kosilek come to their facility post-surgery. So, there are a
number of issues that were raised. She was concerned that the less secure facility at MCI
Framingham compared to the much greater security ofMCI Norfolk which is where Ms. Kosilek
has been housed for twenty years might lead to a potential for an escape risk. There were
concerns about sending Ms. Kosilek to a less security DMH facility for a mental health treatment
should that be necessary.

Judge Kayatta: How would that be, an escape risk any different from a female prisoner who
murdered a spouse?

McFarland: The testimony was that Kosilek having grown up as a male and being stronger than
a lot of the females, would have a different desire. Would have different abilities. This is the
testimony of Commissioner Bissonnette who worked for some twenty years at MCI Framingham
and also worked at male facilities. She was quite concerned that the facility there while
sufficient to handle the normal female offenders who are there just nine to ten months on average
with handling an individual like Ms. Kosilek who could be there for life might be a difficult
situation.

Judge Kayatta: What is the plaintiffs age currently?

McFarland: I believe the plaintiff is 63.

7

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed 05/23/13 Page 8 of 18

Judge Kayatta: So, by the time of the surgery she would be 64 or 65 post-hormonal treatment
and the concern your cl ient has is that she would pose an unusual escape risk, because of her
strength.

McFarland: That was the testimony in 2006, your honor. That Ms. Kosilek did pose, present
an unusual risk of escape at that facility. It's clear that Commissioner, there was also the
concern about the judge's determination that Commissioner Clarke was biased and was affected
by fear of other controversy. There was absolute no hints in the record that Commissioner
Clarke was subject to any kind of fear of her political controversy. He did receive two letters
unsolicited from members of the legislature, but he did not respond to them, and he made it clear
in his testimony that they had no impact on him. He testified that he neither talked about this
case to any senior officials in the dept. or in the states, he made it clear that he was going to do
this his own way, provide a fresh perspective based on his extensive experience, he did not want
to talk to other correctional professionals, get their opinions. This is the man who was the
president elect of the largest association of correctional staff and administrators in the world at
ACA, many, many years as an auditor of other prison systems, a consultant to the Federal
Bureau of Prisons, so he clearly was, and the judge noticed this, a very well-qualified individual
and a perfect individual to address these issues and to look, provide a fresh look at the concerns.

Judge Thompson: Are you arguing that the court had to disregard the earlier testimony of
Commissioner Dennehy who testified, if I recall, that she would rather retire than be the
Commissioner at the time the court ordered such surgery?

8

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed OS/23/13 Page 9 of 18

McFarland: Commissioner Dennehy felt very strongly that this situation would create all kinds
of problems in the correctional world. She felt very strongly and maybe shouldn't have said so
strongly that she would resign, but certainly...

Judge Thompson: But, this is an official capacity suit, so the question is are you arguing that
we should disregard her testimony or that the district court should have disregarded her
testimony in making his findings of fact.

McFarland: No, not a question of disregarded testimony, but certainly we feel that the
testimony of Commissioner Spencer and Commissioner Clarke is much more relevant, is closer
in time and he had the benefit of looking at this issue through his own perspective, not having
any impact with any other state legislators or other state bodies. He was the individual that the
judge picked out and ordered him to testify. So, while we don't conceive that Commissioner
Dennehy was acting in, with regard to fear or of controversy or political retaliation, we do feel
that the court would have been better to look entirely at the testimony that was closer in time to
its decision and had the benefit of looking at other testimony and the benefit of really using
national experiences to address this issue.

Judge Thompson: I think the problem what I'm having and probably a problem shared with my
colleagues, is that to the extent that this case involves mixed questions of law and fact, we are
bound by a clear error standard as far as reviewing the trial judge's findings.

9

Case 1:00-cv-12455-MLW Document 625-10 *SEALED*

Filed OS/23/13 Page 10 of 18

McFarland: I understand your honor. But, we do feel strongly that with regard to the objective
opponent especially, the judge did create or carve out, what we say is a new exception to the
Eighth Amendment, requiring this treatment that would in the sense cure it and by relying on
professional standards which the Supreme Court has admonished for us not to rely on for
professional standards to establish constitutional minimums. That was in the case of Rhodes v.

Chapman and also recently Vladan v. Brown. So, in this case the Court puts entirely standards of
care, this is what they require, this is what I'm going to report in the Eighth Amendment and the
failure to provide Ms. Kosilek with SRS as is put on in the standards of care is a violation of the
Eighth Amendment. That is an issue of law in this court in address. Thank you very much

Judge Torruella: Good morning Ms. Cohen.

Cohen: Good morning. May it please the court, I represent Michelle Lynne Kosilek who is
serving a life sentence at MCI Norfolk.
She is transsexual, she will be 64 next week on April 10th, she was born anatomically male, but
her gender identity is entirely female. She suffers, as the expert testimony overwhelmingly
stated, mental anguish on a daily basis as a result of the dissonance between her physical body
and her mental state.
Severe GID as this court has already acknowledged is a debilitating condition. It's characterized
not only by mental anguish, but by genital mutilation, self castration, and by suicide. In this case,
as the questions have already pre essayed Kosilek is seeking the very treatment that was
recommended for her by the prison medical staff, by the vendor, UMass Correctional Medical
Health Services, and by the staff clinician.

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One of the key witnesses at trial was Dr. Kenneth Appelbaum who is the chief psychiatrist for
the vendor, Massachusetts Correctional Health Services. He is a psychiatrist on the staff of
UMass and he coordinated the review and testified in court and reviewed all of the medical
experts' testimony at the request of the trial court judge. He testified that the only adequate
treatment for Michelle Kosilek's serious GJD disorder is sexual reassignment surgery.
The DOC has not challenged that sexual reassignment surgery would cure, or it would, excuse
me, we've heard a lot of discussion about "cure" and I don't want to use that word in this
context, but the DOC does not challenge that SRS is an adequate treatment for the severe gender
identity disorder that Ms. Kosilek faces. Instead they have two different claims. First, they
claim that they have an alternative treatment which would also be adequate and that would be
continuing the hormone therapy and the psychotherapy that she has had as well as physical
restraints if she becomes suicidal or anti-depressants. They claim that that treatment is also
adequate to the same extent that SRS would be adequate. And second, they claim that security
concerns preclude Ms. Kosilek from receiving SRS. The district court found against them on
both issues and made rulings of fact.

The same district court judge has had the opportunity to preside over these proceedings for
twelve years. There is an initial decision, Kosilek v. Maloney in 2002, the second trial lasted 28
days, the court heard testimony from 17 witnesses and reviewed more than 100 exhibits in
coming to the conclusion that SRS was the only adequate treatment for Ms. Kosilek's condition.

This appeal presents two narrow issues. First, did the district court err in finding, as a matter of
fact, that SRS is the only adequate treatment for Ms. Kosilek's severe GlD. And second, did the

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trial court err, as a matter of fact, in finding that the DOC has been deliberately indifferent to her
condition and the questions have touched on this morning...

Judge Torruella: Is that a question of fact, whether it was meant to be deliberate indifference.
would have thought that was a legal standard.

Cohen: The question of the subsidiary factual findings are what are in dispute. There is no
dispute with regard to the legal standard here. The legal standard is whether there was deliberate
indifference and that has two prongs, an objective prong, which goes to the seriousness of the
medical condition, and the adequacy of the treatment, and a subjective of prong, which is
whether the defendant disregarded a known risk. It is not necessary to have intent to harm, it's
simply enough to be aware of the risk of harm. And, on each of those ...

Judge Thompson: Does the adequacy prong have a security concern?

Cohen: Yes.

Judge Thompson: How do you address their argument that if they respond to threats of suicide
by allowing for this type of surgery in this instance that they would be held hostage in the future
by similarly situated prisoners with medical conditions or any other demands if they don't
succumb to the threats of suicide.

Cohen: The district court. ..

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Judge Thompson: ....hostage

Cohen: Oh, excuse me your honor, the district court made two findings on that issue. First, the
district court found that these are not threats of suicide. The district court found that it was
incredible, simply not believable as a factual matter, that anyone would be willing to engage in
SRS and give up the male characteristics and male organs as a pretext in order to get this surgery.
The district court did not agree with that as a factual finding and found that Michelle Kosilek
was not feigning any condition in manipulation. Second, the medical providers recommended
this treatment for Michelle Kosilek. This is not an issue of anyone being held hostage, this is a
case where the very treatment providers that were selected by the DOC to provide medical
services to Michelle Kosilek determined that that was the appropriate treatment and so under the
objective of prong in terms of adequacy, these are based on findings by the clinicians that were
hired by the DOC by Dr. Appelbaum of UMass Correctional Services, by the staff clinician,
Mark Burrowes, who is the person who is in daily contact with Michelle Kosilek at MCl Norfolk,
and it was also the conclusion of Kosilek's medical experts that this was the appropriate
treatment.

Judge Kayatta: Didn't Dr. Levine testify that the science was not there yet to reach conclusions
as to, that was sufficient to negate the view that the surgery was not necessary?

Cohen: Dr. Levine testified that a prudent professional would not withhold SRS for Michelle
Kosilek. He expressed some ...

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Judge Kayatta: He testified that it would imprudent not to require it.

Cohen: That's right. And, Dr. Levine testified that the science had not yet addressed, validated
some aspects ofSRS and in that regard his testimony was contradictory to that of Dr. Randi
Kaufman and Dr. Appelbaum and the district court, as where there were two permissible views
of the evidence, was properly entitled to credit the testimony of Dr. Kaufman and Dr.
Appelbaum and not to agree with Dr. Levine in that respect.

Judge Torruella: One of the sequence of treatments of the Benjamin Standard of Care is a
documented real life experience ofliving as a member of the opposite sex. Can you tell me what
that means, and can you tell me how that can be met in a prison environment?

Cohen: Yes, Judge Torruella, this is the subject that Judge Wolf took up at the first trial of
Kosilek v. Maloney and there was also testimony about it in Kosilek v. Spencer. What the
Benjamin Standards of Care, which are what prudent professionals use to treat GID provide for
is that prior to making an irreversible commitment to SRS that a patient who is suffering with
severe GID have a year ofliving in the desired role. And, what the district court found was that
it is possible to have a real life experience in prison. That was what the testimony was of various
clinicians including Dr. Kaufman, Dr. Brown and Dr. Appelbaum. The prison really is Michelle
Kosilek's life, that she has faced what Dr. Kaufman said, were unusual odds in her real life
experience, because she has lived in a male facility where there is, I think, Dr. Brown testified,
daily monitoring of her conduct and she has met those challenges by behaving and living in the

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female role at all times. So, not only has she had a classic real life experience, the evidence was,
but it was an unusually challenging one where she actually corrects the corrections officers and
the inmates who are derisory with regard to her GID and she has had an unusually strong gender
identity during her real life experience. I wanted to speak briefly to the security concern ...

Judge Torruella: If I want to read more about this in the record, is that available? In the record?

Cohen: Yes, it is in the record and we have cited it, the real life experience evidence and it is in
our brief, the citations to the record where the evidence is discussed and in particular, Dr.
Kaufman and Dr. Brown testified. Dr. Kaufman was the consultant to the DOC health team and
Dr. Brown was our litigation expert for Michelle Kosilek and they both testified in that regard.
want to talk briefly about the security concerns and specifically with regard to the two security
"reviews" that were done. We used the term in quotation marks in our brief, because both
reviews were purpose made, the district court found that they were drafted largely by trial
counsel, hastily done in response to the court requirements, the relevant superintendents were not
consulted, that would be the superintendent of the facility which Kosilek is confined or the
superintendent ofthe women's facility when the security review was done. When Commissioner
Clarke testified that it would be an insurmountable barrier to security to have SRS, he was
unfamiliar with Kosilek's age, he was unfamiliar with her classification history that she had
never had an escape attempt and he was unfamiliar with her disciplinary record that she has been
a model prisoner.

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Judge Kayatta: Ms. Cohen, if we accept the judge's factual finding that the security testimony
was in bad faith and improperly motivated in the like, does that litigate the possibility though
that the testimony albeit in bad faith was correct and where in the record does the district court
rely on a determination that one of the four options for housing the plaintiff after the surgery will,
in fact, not pose a security risk?

Cohen: It is in the record when the district court discusses Commissioner Clarke's testimony
and Commissioner Clarke specifically acknowledged on cross examination in response to
questions from the court that Ms. Kosilek could be housed in a highly restricted setting, if
necessary ...

Judge Kayatta: Didn't the judge find that itself could be a violation of the Eighth Amendment?

Cohen: No, he did not. That question was not before the court and what the judge did in
difference to the prison officials was he left it up to the prison officials to decide how to house
Michelle Kosilek in the hopes that they would act in good faith in that regard.

Judge Kayatta: And, my question though was how could the court order the surgery without
also having something in the record that would support a finding, that there is at least one way
that will work as to oppose to ordering the surgery and then saying we will figure it out
afterwards.

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Cohen: There was one way which is housing in a more restricted setting and there was no
indication in the record that that was an Eighth Amendment violation. The court also found out
that there were other ways including the possibility of a transfer to another state under the
interstate compact and there was evidence in the record of other transsexuals, in particular the
transsexual in Washington state having been transferred to the state of Washington which
accepter her and where she has been a model prisoner, although Commissioner Clarke wasn't
aware of her, she was a prisoner in Washington State during her ten year. One ...

Judge Torruella: Along those grounds is there any evidence in the record as to any transsexuals
being presently in prison or at any point being in prison here in Massachusetts.

Cohen: I don't believe there is evidence in the record that there were transsexuals in the prison.
My memory may be faulty on this, there may have been some testimony by Commissioner
Bissonnette that there had been transsexuals at Framingham from time to time, but I don't recall
specifically. I just want to say that there is also present in the record that. ..

Judge Thompson: Wasn't there some testimony of the record that when Commissioner
Dennehy came on board that she stopped hormone treatment not only for your client, but others?

Cohen: That's correct. This is not the only case involving this issue. This court has had the

same defendant and the same issues in Battista v. Clarke. The district court has ...

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Judge Thompson: I think, so to the extent that there were other people were on honnone
treatment, I mean I know they haven't had the surgery, but there are other people suffering from
this disorder who are currently housed at the facilities and receiving this treatment.

Cohen: That is correct. I had understood the question to refer to post-surgical transsexuals, but
certainly there are cases in the district court and Battista v. Clarke in this court involving other
transsexuals. There is Sonneya v. Spencer, is one of the other cases and the case of Battista and
there is one other. I also want to say that following Kosilek v. Maloney which was the case in
which the DOC, the first case here maintains throughout the trial that there would be an
insurmountable security barrier if Michelle Kosilek was given hormones. And the district court
with due respect for state officials did not enter an Order for Relief, but outlines the relevant
legal principles and after that decision the DOC did commission a bona fide security review and
the security review found no concerns with maintaining Michelle Kosilek on hormones, even
though that was directly contrary to what the testimony had been throughout the trial and for the
years previous and she was put on hormones and has lived at MCI Framingham without incident
since then. And, I see that my time is up. Thank you.

Judge Kayatta: Thank you

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