Hunt v. Bender et al
Filing
126
Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND ORDER. This Court hereby enters Judgment in Favor of Plaintiff as to Counts I and II, and for Defendant as to Count III. AN ORDER HAS BEEN ISSUED. (Geraldino-Karasek, Clarilde)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KATHEENA SONEEYA
f.k.a. Kenneth Hunt,
Plaintiff,
v.
LUIS S. SPENCER
in his official capacity,
Defendant.
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Civil Action No. 07-12325-JLT
MEMORANDUM
March 29, 2012
TAURO, J.
I.
Introduction
Katheena Soneeya is a male-to-female transsexual currently serving a natural life sentence
in the custody of the Massachusetts Department of Correction (DOC). She1 has been
incarcerated since 1982, and is currently housed at MCI-Shirley, a medium security male prison.
She is suing Defendant for violation of her Eighth and Fourteenth Amendment rights under the
United States Constitution, and for a violation of her rights under Article 114 of the Declaration
of Rights of the Massachusetts Constitution. A bench trial was held on January 29, 2012.
II.
Background
A.
Factual Background
In 1982, Massachusetts Superior court convicted Katheena Soneeya (born Kenneth Hunt)
of the murder of two women, and she is currently serving a life sentence without possibility of
1
Although Plaintiff is biologically male, the court will refer to her using feminine pronouns
in deference to her expressed gender identity.
parole. She has been in the custody of the DOC since her conviction in 1982, and has been
housed at a number of different facilities during the term of her incarceration. She is currently
housed at MCI-Shirley, a medium security male prison.
Although Soneeya was born a biological male, she has consistently suffered from gender
dysphoria, or a sense that her physical body does not match her gender identity. From early
childhood on, Ms. Soneeya has felt that she was a “woman.”2 She has told medical providers that
as a child she would wear her mother’s clothing or makeup when she could, she preferred female
friends, and she and her brother would play a game of mock-sex where she would take the female
role.3
This persistent cross-gender identification is intertwined with a personal history
characterized by early trauma and sexual development. Ms. Soneeya testified to feeling like a
“freak” as she was growing up, and she suffered rejection and ostracization, as well as sexual,
physical, and emotional abuse from her parents and others.4 Medical and prison records
submitted in to evidence also show that Ms. Soneeya has a history of psychiatric treatment related
to “self mutilative behavior and suicidal ideation.”5 Ms. Soneeya’s history also reflects two
suicide attempts in Boston when she was between the ages of fourteen and seventeen.6 In 1982,
2
Trial Tr. II-6:15-23 (Testimony of Katheena Soneeya); Pl. Ex. 1 (Power 1990 Mental
Health Examination) at 3-5.
3
Pl. Ex. 10 (1998 Seil Letter).
4
Pl. Ex. 1 (Power 1990 Mental Health Examination) at 3-5; see also Pl. Ex. 44 (2011
Levine Report) at 4-6.
5
Pl. Ex. 7 (1997 Carpenter Eval.) at 2.
6
Id.
2
Ms. Soneeya was convicted of the murder of her cousin and another woman, and was sentenced
to life in prison without the possibility of parole.
Ms. Soneeya was first diagnosed with gender identity disorder (“GID”) in 1990, while in
DOC custody.7 Ms. Soneeya initially sought help from mental health services at Old Colony after
she attempted to castrate herself in order to “get rid of the one problem that’s been bothering [her
for her] whole life.”8 In a 1990 evaluation, Dr. Judith Power diagnosed Ms. Soneeya with
“transsexualism, polysubstance abuse, personality disorder, NOS with histrionic borderline and
antisocial features.”9 Ms. Soneeya testified at trial that she was “stunned” by the diagnosis, and
by the realization that, she “grew up suffering with this for [her] whole life and realized that there
was treatment around the corner that [she] couldn’t get.”10
Gender Identity Disorder is defined by the “Diagnostic and Statistical Manual of Mental
Disorders, 4th Edition, Text-Revised” (“DSM-IV-TR”) as a major mental illness characterized by
“a strong and persistent cross-gender identification.”11 Individuals with GID experience
“[p]ersistent discomfort with [their] sex or sense of inappropriateness in the gender role of that
sex,” and in adults “the disturbance is manifested by symptoms such as preoccupation with getting
rid of primary and secondary sex characteristics . . . or belief that he or she was born the wrong
7
Pl. Ex. 1(1990 Power Eval.) at 3 (diagnosing Ms. Soneeya with “transsexualism,” and
discussing her “gender identity issues”).
8
Trial Tr. II at 8:5-11:17 (Testimony of Katheena Soneeya).
9
Pl. Ex. 1 (1990 Power Eval.) at 3.
10
Trial Tr. II at 12:11-13:3 (Testimony of Katheena Soneeya).
11
Trial Tr. I at 50:4-24 (Testimony of Dr. Randi Kaufman).
3
sex.”12
The course of treatment for Gender Identity Disorder generally followed in the community
is governed by the “Standards of Care” promulgated by the World Professional Association for
Transgender Health (“WPATH”).13 A new version of the Standards of Care, the seventh version,
was released in September, 2011, after Plaintiff filed her initial complaint in this case.14 Both the
sixth version and the seventh version of the SOC are relevant to the instant proceeding. The sixth
provides the standard for Plaintiff’s past treatment, and because plaintiff seeks only prospective
relief, the seventh version provides the community standard for treatment of GID going forward.
The Standards of Care are generally understood to be flexible clinical guidelines, which individual
health professionals and programs may modify.15 The Standards of Care explicitly state that,
“[c]linical departures from the SOC may come about because of a patient’s unique anatomic,
social, or psychological situation; an experienced health professional’s evolving method of
handling a common situation; a research protocol . . . or the need for specific harm reduction
strategies.”16
The Standards of Care put forth three major areas of therapy for GID, which consist of:
12
Pl. Ex. 62 (DSM-IV-TR) at 537-38.
13
Trial Tr. I at 53:4-7 (Testimony of Dr. Randi Kaufman); Trial Tr. III-68:15-19
(Testimony of Dr. Stephen Levine). The Standards of Care were previously known as the Harry
Benjamin International Gender Dysphoria Association’s Standards of Care. Pl. Ex. 51 (Harry
Benjamin International Gender Dysphoria Association’s Standards of Care 6th Version (“SOC
v6"; Pl. Ex. 53 (WPATH Standards of Care, 7th Version (“SOC v7") at 1 n.1.
14
Trial Tr. I-54:9-15 (Testimony of Dr. Randi Kaufman).
15
Pl. Ex. 53 (SOC v7) at 2.
16
Id.
4
(1) hormone therapy; (2) a real-life experience living as a member of the opposite sex; and (3) sex
reassignment surgery.17 Not all persons suffering from GID want or require all three types of
therapy in order to alleviate their gender dysphoria.18 Ultimately, the level of treatment that a
patient requires depends on the severity of their GID diagnosis, and the treatment of gender
dysphoria has become more individualized with the adoption of the seventh version of the
Standards of Care.19
Under the Standards of Care, initiation of each stage of triadic therapy should only be
undertaken once the patient meets certain eligibility and readiness criteria. Initiation of hormone
therapy requires that the patient has: (1) persistent, well-documented gender dysphoria; (2) the
capacity to make informed treatment decisions; (3) attained the age of majority; and (4)
reasonable control over any medical or mental health concerns.20 While sex reassignment surgery
is not necessary for all patients, for some, “surgery is essential and medically necessary to alleviate
their gender dysphoria.”21 The seventh version of the Standards of Care asserts that, “[t]he vast
majority of follow-up studies have shown an undeniable beneficial effect of sex reassignment
surgery on postoperative outcomes such as subjective well being, cosmesis, and sexual
function.”22 The sixth version of the standards of care sets forth readiness and eligibility criteria
17
Kosilek v. Maloney 221 F. Supp. 2d 156, 166 (D. Mass 2002). See Pl. Ex. 51 (SOCv6)
18
Trial Tr. at I-64:2-10 (Testimony of Dr. Kaufman).
19
Pl. Ex. 53 (SOC v7) at 8-9.
20
Pl. Ex. 53 (SOC v7) at 34.
21
Pl. Ex. 53 (SOC v7) at 54.
22
Pl. Ex. 53 (SOCv7) at 207.
at 3.
5
for sex reassignment surgery. The eligibility criteria are:
1.
2.
3.
4.
5.
6.
Legal age of majority in the patient’s nation;
Usually 12 months of continuous hormonal therapy for those
without a medical contraindication . . . ;
12 months of successful continuous full time real-life
experience. Periods of returning to the original gender may
indicate ambivalence about proceeding and generally should
not be used to fulfill this criterion;
If required by the mental health professional, regular
responsible participation in psychotherapy throughout the reallife experience at a frequency determined jointly by the patient
and the mental health professional. Psychotherapy per se is
not an absolute eligibility criterion for surgery;
Demonstrable knowledge of the cost, required lengths of
hospitalization, likely complications, and post surgical
rehabilitation requirements of various surgical approaches;
Awareness of different competent surgeons.23
The readiness criteria are:
1.
2.
Demonstrable progress in consolidating one’s gender identity;
Demonstrable progress in dealing with work, family, and
interpersonal issues resulting in a significantly better state of
mental health; this implies satisfactory control of problems
such as sociopathy, substance abuse, psychosis, suicidality, for
instance.24
With respect to the relevance of other psychiatric disagnoses to a patient’s GID treatment,
the sixth version of the Standards of Care take the position that “[t]he presence of psychiatric
comorbidities does not necessarily preclude hormonal or surgical treatment, but some diagnoses
23
Pl. Ex. 51 (SOC v6) at 20. Although the SOC v7 doesn’t distinguish between
“readiness” and “eligibility” criteria, it has similar prerequisites for SRS. See Pl. Ex. 53 (SOC v7)
at 58-62.
24
Pl. Ex. 51 (SOC v6) at 20.
6
pose difficult treatment dilemmas and may delay or preclude the use of either treatment.”25
At trial, two experts testified regarding treatment for GID in general, and Ms. Soneeya’s
treatment while in DOC custody in particular. Plaintiff’s expert, Dr. Randy Kaufman, Psy.D., is a
clinical psychologist and psychotherapist with a private practice in Cambridge, Massachusetts.
Her current practice focuses on treatment of individuals with GID and other gender identity
issues.
From 1999 through 2005, Dr. Kaufman worked at the Fenway Clinic, the premiere
institution in New England for treatment of gender identity issues.26 At the Fenway Clinic, Dr.
Kaufman worked primarily with patients with gender identity issues.27 She developed the
transgender health program at the Fenway Clinic and started the first two support groups for
individuals with GID.28 In 2001, while still at the Fenway Clinic, Dr. Kaufman opened her private
practice in Cambridge, Massachusetts, which she maintains today.29 She currently sees twentyeight patients with gender identity issues in her private practice, and she has treated three hundred
seventy-two patients with gender identity issues over the course of her career.30
Between 2003 and 2005, the Fenway Clinic had a contract with UMass Medical School,
for the evaluation of prisoners in the custody of the DOC for gender identity disorder. Pursuant
25
Pl. Ex. 51 (SOC v6) at 7.
26
Trial Tr. I at 41:11-43:25, 111:2-16 (Testimony of Dr. Kaufman).
27
Trial Tr I at 42:10-12 (Testimony of Dr. Kaufman).
28
Trial Tr. I at 43:7-17 (Testimony of Dr. Kaufman).
29
Trial Tr. I at 44:10-11 (Testimony of Dr. Kaufman).
30
Trial Tr. I at 45:1-9 (Testimony of Dr. Kaufman).
7
to this contract, Dr. Kaufman evaluated a number of inmates in DOC custody including Ms.
Soneeya.31 She has published a number of articles on transgender and gender identity issues, and
she previously testified as an expert in the Kosilek litigation in this district.32 Dr. Kaufman has
evaluated Ms. Soneeya twice, once in 2003 as part of her work with the Fenway Clinic, and once
in 2010 in preparation for this litigation.33
The defense called Dr. Stephen Levine as an expert witness. Dr. Levine is a practicing
clinical psychiatrist who specializes in sexuality.34 He is also a professor of psychiatry at Case
Western Reserve University, and has written a number of scholarly articles and publications in the
field of psychiatry and human sexuality.35 He was the chairman of the writing group that was
commissioned to write the fifth version of the Harry Benjamin Standards of Care.36 In 1974, Dr.
Levine co-founded the Case Western Reserve University Gender Identity Clinic.37 The clinic
evaluated and provided services to individuals who were seeking to transition from one gender to
another. The clinic coordinated care with two local hospitals, and in some cases offered
hormones and sex reassignment surgery. In addition to providing services, the clinic also
conducted research, and the clinic staff wrote a number of papers dedicated to the then-emerging
31
Trial Tr. I at 45:12-22; Pl. Ex. 46 (2003 Kaufman Eval.).
32
Trial Tr. I at 46:7-49:11 (Testimony of Dr. Kaufman).
33
Trial Tr. I at 64:23-66:19, 73:3-24 (Testimony of Dr. Kaufman).
34
Trial Tr. III at 8:6-9:11 (Testimony of Dr. Levine).
35
Trial Tr. III at 9:12-11:16 (Testimony of Dr. Levine).
36
Trial Tr. III at 12:11-14 (Testimony of Dr. Levine).
37
Trial Tr. III at 15:14-17 (Testimony of Dr. Levine).
8
field of gender identity disorders.38 While the clinic served a large volume of patients in the
1970s, the number of patients has diminished dramatically over the years.39 The clinic that Dr.
Levine co-founded has seen about four hundred GID patients since it opened in 1974. Of that
number approximately thirty of those patients were in Dr. Levine’s personal case load. At the
time of trial, Dr. Levine did not have any GID patients in his personal case load.40
Dr. Levine currently serves as the GID consultant for MHM, the private contractor that
provides mental health services for inmates in the custody of the DOC.41 He was retained in this
capacity following his testimony as a court-appointed expert in previous litigation in this district
concerning the DOC’s treatment of another prisoner with GID.42 In his role as GID consultant to
MHM, Dr. Levine has personally interviewed about a dozen inmates with GID, and he had an
instrumental role in establishing MHM’s supervision group and GID treatment committee.43
Dr. Levine has met with Ms. Soneeya twice. Once in 2008, to do an initial evaluation of
Ms. Soneeya in his capacity as the GID consultant for MHM, and again in 2011 in preparation for
this litigation.44 The 2008 meeting lasted for approximately one hour because it was cut short due
38
Trial Tr. III at 15:20-17:3 (Testimony of Dr. Levine).
39
Trial Tr. III at 17:2-3 (Testimony of Dr. Levine).
40
Trial Tr. III at 61:11-25 (Testimony of Dr. Levine).
41
Trial Tr. III at 27:5-17 (Testimony of Dr. Levine).
42
Trial Tr. III at 54:16-55:11 (Testimony of Dr. Levine). See generally Kosilek v.
Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002).
43
Trial Tr. III at 27:11-13 (Testimony of Dr. Levine).
44
Trial Tr. III at 52:8-15 (Testimony of Dr. Levine).
9
to an incident at the prison.45 The 2011 meeting lasted four hours. In addition to these meetings,
Dr. Levine has been routinely appraised of Ms. Soneeya’s care and progress through his work as
a GID consultant to MHM. He participates in monthly meetings with the GID supervision and
treatment groups that directly oversee Ms. Soneeya’s care.46 Dr. Levine testified at trial that
when he prepared for his evaluation of Ms. Soneeya in 2008, he assumed that she would never
receive sex reassignment surgery because it was prohibited by prison policy.47
While both experts agree that Plaintiff indisputably suffers from GID, they differ on the
question of whether sex reassignment surgery is medically necessary in this case.48 Both Dr.
Levine and Dr. Kaufman concur that plaintiff has a genuine, consolidated female gender identity,
and that she has been receiving hormone treatment for her GID since 2003.49
In particular, Dr. Kaufman and Dr. Levine disagree as to whether Ms. Soneeya has
fulfilled the eligibility and readiness criteria in the standards of care, and whether the standards of
care are applicable in the prison context. Both Dr. Levine and Dr. Kaufman agree that
continuation of hormone therapy can be clinically appropriate in the prison setting. They differ as
to the feasibility of a patient undergoing a “real life experience” as prescribed by the Standards of
Care, while incarcerated, and, therefore, whether sex reassignment surgery can ever be medically
45
Trial Tr. III at 52:11-12 (Testimony of Dr. Levine); see Pl. Ex. 45 (2008 Report of Dr.
Levine) (indicating that conversation ended “at the last minute before prisoner count.”).
46
Trial Tr. II at 73:5-8 (Testimony of Dr. Andrade) (indicating that Dr. Levine “calls in for
an hour each month, from eleven to twelve, to review all cases of significant clinical concern.”).
47
Trial Tr. III at 57:20-58:7 (Testimony of Dr. Levine).
48
See Pl. Ex. 44 (2011 Levine Eval.); see also Pl. Ex. 47 (2010 Kaufman Eval.).
49
See Pl. Ex. 44 (2011 Levine Eval.); Pl. Ex. 47 (2010 Kaufman Eval.); see also Pl. Ex. 48
(2011 Kaufman Response to 2011 Levine Eval.) at 2.
10
appropriate for a patient who has not undergone the real life experience as a free person.50 In
addition, Dr. Levine testified at trial that while Plaintiff meets the eligibility criteria under the
standards of care, “the mental health staff that deal[] with her . . . do not feel that she meets the
readiness criteria . . . because of her psychological makeup and her inability to deal with things . . .
in a nuanced fashion.”51 Dr. Kaufman and Dr. Levine also disagree about the long term benefits
of sex reassignment surgery for any patient with GID. Dr. Levine, in particular, emphasized that
there is a lack of empirical evidence from long term studies demonstrating positive outcomes for
GID patients who have undergone sex reassignment surgery because a majority of patients are
lost to follow up and unable to be reached years after their surgery.52 This position is, however,
contrary to the one endorsed by the Standards of Care and Dr. Kaufman, which indicate that the
evidence available shows generally positive outcomes for most patients who have sex
reassignment surgery.53
50
See Trial Tr. III at 23:10-26:25 (Testimony of Dr. Levine).
51
Trial Tr. III at 74:23-75:3 (Testimony of Dr. Levine).
52
Trial Tr. III at 74:23-81:1 (Testimony of Dr. Levine).
53
Trial Tr. I at 101:9-102:8 (Testimony of Dr. Randi Kaufman); Pl. Ex. 53(SOC v7) at 5455). At trial, Dr. Levine emphasized a new study from Sweden (Trial Tr. III - 79:6-81:1
Testimony of Dr. Levine) (Def. Ex. FF: Dhejne Study)), which was based on population data for
all transsexuals who have undergone sex reassignment surgery in that country. The study
indicated that postoperative transsexuals have a higher mortality rate, from all causes, than the
population at large, but it contained no data regarding the relative mortality rate of transsexuals
who had undergone sex reassignment surgery and those who had not. It, therefore, cannot be
said to provide evidence either for or against the effectiveness of sex reassignment surgery as a
treatment for GID. Indeed, the Dhejne Study itself states that, “no inferences can be drawn as to
the effectiveness of sex reassignment as a treatment for transsexualism. In other words, the
results should not be interpreted such as sex reassignment per se increases morbidity and
mortality. Things might have been even worse without sex reassignment.” (Def. Ex. FF at 10).
The study is, however, an indication that long term complications of sex reassignment surgery are
an important factor that should be considered by the patient and his or her health care
11
Ms. Soneeya has a long history of seeking treatment for her GID from the DOC with
varying degrees of success over time. Ms. Soneeya was initially diagnosed with GID in 1990,
after she had been in DOC custody for eight years.54 Since that time, the DOC’s response to her
requests for treatment has been characterized by a series of delays, bureaucratic mismanagement,
and seemingly endless security review with no clear rhyme or reason. In 1999, after settling a law
suit against the DOC and nine years after her initial diagnosis, Ms. Soneeya received her first
treatment plan that indicated that the Standards of Care should be followed in deciding her course
of treatment.55 Between 1990 and 2003 Ms. Soneeya received a number of psychological
evaluations that confirmed the diagnosis of GID, and also diagnosed her with comorbid
personality disorders.56 Pursuant to those evaluations, Ms. Soneeya was provided with
psychotherapy, but her therapists had little or no experience in treating gender identity disorders.57
In 2003, Ms. Soneeya was evaluated by Drs. Kaufman and Kapila as part of a contractual
professionals in making the decision to go forward with sex reassignment surgery.
54
Def. Ex. A (Plaintiff’s Medical Records).
55
Def. Ex. H. (Hickey Mental Health Treatment Plan).
56
See Pl. Ex. 1(1990 Power Eval.); Pl. Ex. 5 (1992 King Eval.); Pl. Ex. 6 (1997 Russel
Eval.); Pl Ex. 7 (1997 Carpenter Eval.); Pl. Ex. 10 (1998 Seil Eval.); Pl. Ex. 11 (1999 Hickey
Treatment Plan); Pl Ex. 46 (2003 Fenway Eval.); Pl. Ex. 45 (2008 Levine Eval.).
57
See Joint Ex. 1 (Dep. of Dr. Angeles) at 20:6-22:22 (Testifying that she was at one point
Ms. Soneeya’s primary care provider, and that she had no prior experience treating patients with
GID); Joint Ex. 2 (Dep. of Dr. Arthur Brewer) at 29:3-30:17 (indicating that his training in
treatment of GID was limited to a symposium he attended in 2007 or 2008, and that he was
unaware of whether any of the medical staff at UMass had attended training sessions on GID);
Joint Ex. 5 (Dep. of William Micucci) at 37:6-40:14 (indicating that his experience treating
patients with GID was limited to his experience within the DOC, and trainings provided by
various DOC contractors including the Fenway Clinic and Dr. Levine); see also Trial Tr. I-74:1475:10 (Testimony of Dr. Kaufman) (indicating that Mr. Micucci spoke about Plaintiff’s GID
“from a really clinically uninformed perspective.”).
12
arrangement between the Fenway Clinic and the UMass Correctional Health Program, then the
DOC’s mental health provider.58 That report confirmed Ms. Soneeya’s GID diagnosis, and
indicated that Ms. Soneeya should immediately receive hormone therapy coupled with ongoing
psychotherapy.59 The report also indicated that although the evaluators did not believe that Ms.
Soneeya was currently a candidate for sex reassignment surgery, that this should be re-considered
in the future as her treatment progressed.60 That evaluation also noted that although Ms. Soneeya
did have a comorbid diagnosis of sociopathy, this was well controlled in the prison environment.61
In September 2003, pursuant to the Fenway Clinic evaluation, Ms. Soneeya began to
receive hormone therapy under the care of Dr. Maria Warth.62 Dr. Warth was, at that time, an
endocrinologist on staff at the Lemuel Shattuck Hospital (the outpatient hospital under contract
with the DOC to provide specialized care to DOC inmates).63 Although Dr. Warth had no prior
experience in treating patients with GID, she made an effort to familiarize herself with the medical
literature related to hormone therapy for GID patients and with the Standards of Care.64 Ms.
Soneeya experienced some complications related to her hormone therapy, including physical side
58
Trial Tr. I at 64:23-69:17 (Testimony of Dr. Kaufman); see Pl. Ex. 46 (2003 Fenway
Report).
59
Pl. Ex. 46 (2003 Fenway Report) at 5-6.
60
Pl. Ex. 46 (2003 Fenway Report) at 6.
61
Pl. Ex. 46 (2003 Fenway Report) at 6.
62
Joint Ex. 8 (Dep. of Dr. Warth) at 8:21-9:3, 9:10-10:15, 37:22-38:7.
63
Joint Ex. 8 (Dep. of Dr. Warth) at 8:21-9:3, 9:10-10:15, 37:22-38:7.
64
Joint Ex. 8 (Dep. of Dr. Warth) at 31:12-32:25, 88:13-89:7.
13
effects, and she continues to seek evaluation and adjustment of her endocrine care.65 Dr. Warth
was hesitant to increase Ms. Soneeya’s hormone dosage because of concerns related to the
physical side effects of increased estrogen in a person of Ms. Soneeya’s age and weight.66
In 2007, MHM took over from UMass as the DOC’s mental health contractor.67 Since
2008, the mental health care provided to Ms. Soneeya has been supervised by Dr. Levine in his
capacity as the GID consultant for MHM.68 Mental health clinicians who were assigned to treat
inmates diagnosed with GID were also provided with some training on GID treatment, including a
training provided by Dr. Kaufman in 2002 and one provided by Dr. Levine in 2008.69 In 2005, the
Fenway Clinic made a formal recommendation to UMass that Ms. Soneeya be able to feminize her
appearance further including access to female canteen items and clothing, and permanent removal
of facial and body hair.70 It was the understanding of Dr. Kaufman at the time that even though
the recommended feminine products were “everyday” items readily available in the real world, it
65
Trial Tr. II at 21:9-23:6 (Testimony of Katheena Soneeya), Pl. Ex. 47 (2010 Kaufman
Report) at 1-4 (indicating that Plaintiff had experienced development with hormones, but had also
experienced complications and would benefit from an evaluation by an endocrinologist with
experience treating patients with GID).
66
Joint Ex. 8 (Dep. of Dr. Warth) at 47:12-50:19.
67
Joint Ex. 9 (Dep. of Dr. Zakai) at 25:14-27:19; Trial Tr. II at 79:17-80:10 (Testimony of
Dr. Andrade).
68
Joint Ex. 9 (Dep of Dr. Zakai) at 79:3-80:3, 81:8-15; Joint Ex. 5 (Dep. of William
Micucci) at 39:4-42:24; Joint Ex. 6 (Dep. of Merleen Mills) at 24:11-25:6; Trial Tr. at II-72:173:15 (Testimony of Dr. Andrade); Trial Tr. at III-27:14-28:4 (Testimony of Dr. Levine); Trial
Tr. at I-77:1-18 (Testimony of Dr. Kaufman); Def. Ex. A (Plaintiff’s Medical Records) at 318457.
69
Joint Ex. 5 (Dep. of William Micucci) at 39:4-40:20.
70
Pl. Ex. 23 (Letter to Dr. Applebaum from Drs. Kaufman and Kapila).
14
was necessary for her and Dr. Kapila to make a formal clinical recommendation in writing
because, “the inmates were having a very difficult time receiving [them],” “the DOC didn’t want
to produce them,” Ms. Soneeya would not be able to receive these feminine items without a
formal letter.71
In spite of the Fenway Clinic’s recommendations, Ms. Soneeya did not receive feminizing
items in 2005. In late 2005, UMass wrote a letter to the DOC, which endorsed the Fenway Clinic
treatment plan, and recommended that Ms. Soneeya receive laser hair removal and access to
female clothing and cosmetics.72 UMass submitted another written recommendation for GID
treatment in April of 2006, in which it warned that, “further delay in providing the recommended
treatment likely will result in continued or increased levels of distress for each afflicted individual,
with the possibility of self-inflicted injury, and, to that extent, the treatment recommendations are
medically necessary.”73 The DOC has not provided Plaintiff with any sort of permanent hair
removal to date. The DOC takes the position that these recommendations were not treatment
orders because they were not submitted on the appropriate type of form.74
In addition to the UMass and Fenway Clinic recommendations, Dr. Warth recommended
progressive GID treatment consistent with the standards of care beginning in 2005.75 Dr. Warth’s
71
Trial Tr. I-72:15-22 (Jan. 30, 2012) (Testimony of Dr. Randi Kaufman); Pl. Ex. 23
(Letter from Dr. Kaufman to Dr. Applebaum).
72
Pl. Ex. 27 (Letter from Dr. Applebaum to Peter Heffernan).
73
Pl. Ex. 30 (GID Treatment Recommendation Request Form).
74
Trial Tr. II at 151:23-162:3, 165:17-167:2 (Testimony of Lawrence Weiner); Joint Ex. 4
(Dep. of Terre Mashall) at 105:12-110:9; 115:4-116:4, 118:19-120:16, 121:10-122:22, 134:14138:22, 140:3-4.
75
See Pl. Ex. 24 (Progress Notes of Dr. Warth).
15
recommendations included a request that Ms. Soneeya be provided with more feminine items, be
given permanent hair removal, and be assessed for readiness for sex reassignment surgery.76 Dr.
Warth continued to make these recommendations until she ended her employment with the
Lemuel Shattuck Hospital in June 2008.77 The DOC was aware of the recommendations, but did
not treat them as medical orders.78
Contrary to the recommendations of her mental health providers, Ms. Soneeya did not
receive any female clothing or cosmetics until late 2009.79 The former DOC Chief Psychiatrist
testified in a deposition that this was inconsistent with the treatment plan for Ms. Soneeya and had
“complicated” her treatment.80 Ms. Soneeya’s repeated requests for female clothing and canteen
items between 2003 and 2009 were met by a pattern of obstruction and delay on the part of the
DOC. In 2004, one of Ms. Soneeya’s requests for female canteen items, such as lipstick and
mascara, was submitted to then-Commissioner Kathleen Dennehy for a final decision on security
review. The treatment request was denied. The DOC reasoned that these items, “could present an
escape risk [by] altering appearance (male to female).”81 There is no record, however, of any
76
See Pl. Ex. 24 (Progress Notes of Dr. Warth).
77
See Pl. Ex. 24 (Progress Notes of Dr. Warth).
78
Joint Ex. 4 (Dep. of Terre Marshall) at 9:6-10:6, 11:14-25, 12:9-16, 12:23-13:12, 13:1914:9, 14:22-15:7, 15:14-17:16, 17:23-18:8, 75:20-22, 76:25-78:9, 85:5-20, 85:23-86:17, 95:1299:3.
79
Joint Ex. 9 (Dep. of Dr. Zakai) at 101:2-101:23. See Trial Tr. II at 28:23-30:19
(Testimony of Katheena Soneeya).
80
Joint Ex. 9 (Dep. of Dr. Zakai) at 101:2-101:23.
81
Joint Ex. 4 (Dep. of Terre Marshall) at 143:11-145:23.
16
inmate ever using cosmetics to effect an escape from DOC custody.82
In late 2006, the DOC conducted a more formal “security review” of the UMass and
Fenway Clinic recommendation that Ms. Soneeya receive female canteen items. That treatment
recommendation was denied in a “security opinion,” which had no stated criteria.83 In 2009, the
recommendation that Ms. Soneeya be given access to female clothing and canteen items was
reviewed again, this time with the support of then-Superintendent Duane MacEachern and three
other prison officials. Mr. MacEachern took the position that the female canteen items Ms.
Soneeya currently has access to did not raise any security concerns, and that the risk of any
hypothetical concerns could be mitigated.84 The recommendation was once again denied by thenDeputy Commissioner James Bender with no explanation.85
Until 2010, the DOC had no formal policy for treating prisoners with GID, and the
process for obtaining access to treatment was largely ad hoc.86 UMass Correctional Health
currently provides health care for inmates in DOC custody, but since 2007 MHM has had a
contract with the DOC to provide mental health services. At trial, Dr. Robert Diener who is
currently Chief Psychiatrist for the DOC, testified that the DOC did not renew UMass’s contract
to provide mental health services to DOC inmates, and instead replaced UMass with MHM. This
replacement occurred after UMass’s outside expert had recommended sex reassignment surgery
82
Joint Ex. 4 (Dep. of Terre Marshall) at 143:11-145:23.
83
Joint Ex. 4 (Dep. of Terre Marshall) at 138:23-139:17.
84
Joint Ex. 3 (Dep. of Duane MacEachern) at 51:6-18, 53:8-13.
85
Pl. Ex. 42 (Letter from Duane MacEachern to James Bender); Joint Ex. 3 (Dep. of
Duane MacEachern) at 55:3-61:2.
86
See Joint Ex. 4 (Dep. of Terre Marshall) 35:17-42:18.
17
for at least one inmate with gender identity disorder.87 Once MHM assumed responsibility for
inmates’ GID care, it ordered a reevaluation of Ms. Soneeya. This reevaluation was prompted in
part by the DOC’s dissatisfaction with the findings in prior patient evaluations.88 Dr. Levine was
hired by MHM as a GID consultant based on his testimony in the Kosilek trial.89 His 2008
evaluation did not contemplate sex reassignment surgery being an available treatment option for
Ms. Soneeya.90 In the report, Dr. Levine switches back and forth between using masculine and
feminine pronouns, and advises that Ms. Soneeya may have to “come to grips” with the reality
that she may have to “live with her male genitalia.”91 He also recommended that, “[u]ntil
Katheena changes her mind about taking hormones, they should be continued.”92 At trial, Dr.
Kaufman testified that the inconsistency in pronoun use, and the recommendations in the 2008
report are inconsistent with both the sixth and seventh versions of the Standards of Care.93
The various clinicians and experts who have evaluated Ms. Soneeya also disagree as to the
level of risk she faces in relation to her gender dysphoria. Dr. Kaufman testified at trial that she
was concerned that if Ms. Soneeya was denied sex reassignment surgery, she would lapse into
hopelessness and commit suicide. Ms. Soneeya herself has indicated that she would commit
87
Trial Tr. II at 142:18-22, 143:13-25 (Testimony of Dr. Diener).
88
Joint Ex. 9 (Dep. of Dr. Zakai) at 70:11-72:10.
89
Trial Tr. III-55:15-18 (Testimony of Dr. Stephen Levine).
90
Pl. Ex. 45 (Levine 2008 Evaluation).
91
Pl. Ex. 45 (Levine 2008 Evaluation) at 4.
92
Pl. Ex. 45 (Levine 2008 Evaluation) at 4.
93
Trial Tr. II at 89:2-14, 86:3-102:8 (Testimony of Dr. Andrade).
18
suicide if denied this form of treatment. Dr. Levine, however, opined that any depression Ms.
Soneeya faces after possibly being denied sex reassignment surgery could be managed by the
mental health services available at the DOC, and Ms. Soneeya’s medical records reflect that she
has not recently engaged in self harm, and that she is relatively stable and well adjusted in her
current prison environment.
In 2010, the DOC adopted and enacted a formal GID policy. Prior to the promulgation of
the 2010 GID policy, the DOC had no consistent process for reviewing security concerns raised
by GID treatment recommendations.94 It was clear, however that, “[i]t was the commissioner’s
ultimate role to determine whether there was an overwhelming security or safety or corrections
issue.”95 The 2010 policy creates a GID Treatment Committee, which is responsible “for
reviewing the overall treatment of all GID diagnosed inmates . . . on a quarterly basis,” and a GID
Management and Security Committee, which is tasked with reviewing, “any elements of the
Treatment Plan that may potentially present security, safety, or operational difficulties within a
correctional environment.”96 The policy goes on to state that,
The Treatment Plan for inmates diagnosed with GID shall not contain
provisions for services that are not medically necessary for the
treatment of GID within the Department. These elective or cosmetic
services generally include but are not limited to:
a.
Feminization or masculinization procedures such as laser hair
removal and/or electrolysis for permanent facial, chest or other
body hair removal . . .
b.
Plastic surgery, including . . . rhinoplasty, tracheal shaving,
facial feminization/masculinization, mastectomy . . . (FTM),
and breast augmentation (MTF) . . .
94
Joint Ex. 4 (Dep. of Terre Marshall) 31:6-13.
95
Joint Ex. 4 (Dep. of Terre Marshall) at 39:4-6.
96
Pl. Ex. 50 (DOC 2010 GID Policy) at 652.05-652.06.
19
c.
Genital sex reassignment surgery is prohibited as it presents
overwhelming safety and security concerns in a correctional
environment.97
The GID policy further indicates that all final recommendations by the GID Treatment
Committee must undergo security review by the GID Management and Security Committee.
After such review, “[t]he Security Review is then forwarded to the Commissioner for the final
[security] determination. If the Commissioner’s decision is not in support of the recommended
treatment plan, the Treatment Plan is returned to the GID Treatment Committee for consideration
of potential clinical alternatives that meet the inmate’s needs.”98 Under the policy, “[t]he decision
of the Commissioner regarding any aspect of a GID inmate’s management within the Department
shall be final.”99
The depositions and trial testimony in this case indicate that Dr. Kaufman is the only
provider to recommend sex reassignment surgery for Ms. Soneeya. Her treating clinicians and
Dr. Levine have expressed concern over her readiness for sex reassignment surgery in light of her
comorbid psychological diagnoses, and unwillingness to engage in therapy.100 The evidence
submitted also indicates, however, that the DOC has never provided Ms. Soneeya with an
individualized evaluation of her treatment where sex reassignment surgery is considered an
option. It is also clear that the DOC’s haphazard and reactionary approach to security review has
97
Pl. Ex. 50 (DOC 2010 GID Policy) at 653.03(D)(6)( c).
98
Pl. Ex. 50 (DOC 2010 GID Policy) at (C)(5) p. 11.
99
Pl. Ex. 50 (DOC 2010 GID Policy) at 652.06(A)(4)
100
See Pl. Ex. 1 (1990 Power Eval.) at 6; Pl. Ex. 5 (1992 King Eval.) at 3; Pl. Ex. 7 (1997
Carpenter Eval.) at 17; Pl. Ex. 10 (1998 Seil Eval.) at 8; Pl. Ex. 11 (1999 Hickey Treatment Plan)
at 1-2.
20
resulted in delays in treatment that have had an adverse impact on Ms. Soneeya’s care. The
various experts and clinicians who have evaluated Ms. Soneeya also disagree as to the level of
risk posed by her GID.
B.
Procedural Background:
Plaintiff filed the first complaint in this case pro se in December of 2007. In August of
2008, Judge Gertner granted Plaintiff’s Motion to Appoint Counsel, and the law firm of Ropes &
Gray LLP was appointed to represent Ms. Soneeya. On December 15, 2008, Plaintiff filed the
First Amended Complaint, and after discovery, Plaintiff filed the Second Amended Complaint in
December of 2010. In April of 2011, the case was assigned to Judge Stearns, and in May, 2011,
the case was reassigned to this Judge. A bench trial was held on January 30, 2012.
III.
Discussion
A.
Legal Standard
The Eighth Amendment, which is made applicable to the States through the Due Process
Clause of the Fourteenth Amendment, “prohibits the infliction of ‘cruel and unusual punishments’
on those convicted of crimes.”101 When serving a term of imprisonment, “[a]n inmate must rely
on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not
be met.”102 In Estelle v. Gamble, the Supreme Court held that prison officials’ deliberate
indifference to an inmate’s serious medical need may constitute a violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment.103 In its opinion, the Court further
101
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (citing Robinson v. California, 370 U.S.
660, 666 (1962)).
102
Estelle v. Gamble, 429 U.S. 97, 103 (1976).
103
Id. at 104.
21
emphasized that, “[t]he Amendment embodies ‘broad and idealistic concepts of dignity, civilized
standards, humanity, and decency’ against which we must evaluate penal measures.”104
The inquiry into whether prison officials’ denial of medical care to an inmate amounts to
an Eighth Amendment violation has both an objective and a subjective component.105 Objectively,
“it must be proven that there is a serious medical need and that adequate care has not been
provided.”106 Not every ailment qualifies as a serious medical need for Eighth Amendment
purposes. Rather, “[a] serious medical need is one that involves a substantial risk of serious harm
if it is not adequately treated.”107 In general, a serious medical need is “one ‘that has been
diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person
would easily recognize the need for a doctor’s attention.’”108
Prisoners have a right, under the Eighth Amendment to receive adequate treatment for
their serious medical needs. Prisoners must be provided with, “services at a level reasonably
commensurate with modern medical science and of a quality acceptable within prudent
professional standards.”109 Adequate care is based on an individualized assessment of an inmate’s
104
Id. at 102 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).
105
Kosilek, 221 F. Supp. 2d at 160.
106
Id. at 160.
107
Id.
108
Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 18 (citing Gaudreault v.
Municipality of Salem Mass., 923 F.2d 203, 208 (1st Cir. 1990).
109
Battista v. Dennehy, 2006 WL 1581528 at *7 (D. Mass., March 22, 2006) (quoting
U.S. v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987)).
22
medical needs in light of relevant medical considerations.110 Courts must evaluate whether the
care being provided is minimally adequate, but should defer to the considered judgment of prison
officials in choosing between different forms of adequate medical care.111
Once it has been established that a prisoner suffers from a serious medical need, it must
also be shown that prison officials have acted with ‘deliberate indifference’ to that need.112 In
Whitley v. Albers, the Supreme Court emphasized that:
[i]t is obduracy and wantonness, not inadvertence or error in good
faith that characterize the conduct prohibited by the Cruel and
Unusual Punishments Clause, whether that conduct occurs in
connection with establishing conditions of confinement, supplying
medical needs, or restoring official control over a tumultuous
cellblock.113
Deliberate indifference may be manifested in a variety of ways, including by “prison
doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with treatment once prescribed.”114
Other courts have found that “consciously choosing ‘an easier and less efficacious’ course of
treatment plan may constitute deliberate indifference, if the choice was made for non-medical
reasons not rooted in a legitimate penological purpose.”115
110
Kosilek, 221 F. Supp. 2d at 160.
111
Id. at 160-161.
112
Estelle, 429 U.S. at 106; see Farmer v. Brennan, 511 U.S. 825, 840-47 (1970).
113
Whitley v. Albers, 475 U.S. 312, 319 (citing Estelle, 429 U.S. at 105-106).
114
Estelle, 429 U.S. at 104-05.
115
Kosilek, 221 F. Supp. 2d at 183 (citing Chance v. Armstrong, 143 F.3d 698, 703 (2d
Cir. 1998); Durmer v. O’Carroll, 991 F.2d 64, 67-69 (3d Cir. 1993)).
23
As the First Circuit has made clear, the Eighth Amendment standard for what behavior
constitutes deliberate indifference “is in part one of subjective intent.”116 Here, as in criminal law,
“subjective intent is often inferred from behavior and even in the Eighth Amendment context . . . a
deliberate intent to harm is not required . . . . Rather, it [may be] sufficiently evidenced ‘by denial,
delay, or interference with prescribed health care.’”117 In Battista v. Clarke, the First Circuit
found that there was sufficient evidence to support a finding of deliberate indifference where,
“even though it does not rest on any established sinister motive or ‘purpose’ to do harm,” the
Department of Corrections’ actions reflected a “composite of delays, poor explanations, missteps,
changes in position and rigidities – common enough in bureaucratic regimes but here taken to an
extreme.”118
The deliberate indifference inquiry has two parts. First, it must be established that the
responsible official is aware of the facts from which he or she could infer that a substantial risk of
serious harm exists, and second, the official must also draw that inference.119 In deciding what
type of care to provide, or even in rare circumstances, whether to provide care for a prisoner’s
medical needs, it is appropriate for prison officials to weigh the “practical constraints imposed by
the prison environment.”120 In determining whether the subjective standard of deliberate
indifference has been satisfied:
116
Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011).
117
Id. at 453 (citing Farmer, 511 U.S. at 835).
118
Battista, 645 F.3d at 455.
119
Kosilek, 221 F. Supp. 2d at 161.
120
Id. at 161, 182 (citing Farmer 511 U.S. at 832).
24
[t]he duty of prison officials to protect the safety of inmates and
prison personnel is a factor that may properly be considered in
prescribing medical care for a serious medical need. . . . [A] prison
official, acting reasonably and in good faith, might perceive an
irreconcilable conflict between his duty to protect safety and his duty
to provide adequate medical care.121
A decision to alter or deny treatment on such grounds might not rise to the level of an Eighth
Amendment violation because the infliction of pain on the individual inmate “would not be
unnecessary or wanton,” in light of the realities of prison administration.122 Cost of treatment,
however, may not be used as a reason to deny an inmate medically necessary care.123
A prison official is a proper defendant in an Eighth Amendment suit if that official was
“personally involved” in the decision to deny treatment for Plaintiff’s serious medical need.124
Personal involvement may be established, “by showing that the official knew of the prisoner’s
need for medical care and yet failed to provide the same.”125
An Eighth Amendment violation may be found based upon the failure of a correctional
institution to adapt an established policy in order to adequately address an inmate’s serious
121
Kosilek, 221 F. Supp. 2d at 161, 182 (citing Farmer, 511 U.S. at 845; White v. Farrier,
849 F.2d 322, 325 (8th Cir. 1988)).
122
Kosilek, 221 F. Supp. 2d at 161; see also Whitley v. Albers 475 U.S. at 319 (“It is
obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct
prohibited by the Cruel and Unusual Punishments Clause.”).
123
Kosilek, 221 F. Supp. 2d at 161, 182; see also Ancata v. Prison Health Servs. Inc., 769
F. 2d 700, 705 (11th Cir. 1985).
124
See Braga v. Hodgson, 605 F.3d 58, 61 (1st Cir. 2010) (granting summary judgment in
favor of Defendant Sheriff because of Plaintiff’s failure to allege Sheriff’s “personal involvement
with or knowledge of [Plaintiff’s] medical care.”).
125
Ramirez v. Colon, 21 F. Supp. 2d 96, 98 (D.P.R. 1997).
25
medical need.126 The Ninth Circuit held in Allard that denial of treatment for gender dysphoria
based on a blanket prison policy, rather than individual need, may constitute deliberate
indifference under the Eighth Amendment standard.127 Similarly, the Seventh Circuit recently
upheld a District Court’s invalidation of a Wisconsin law that prohibited the use of hormones or
sex reassignment surgery as a treatment for inmates suffering from gender identity disorder.128
There, the Seventh Circuit affirmed the District Court’s finding that an Eighth Amendment
violation “stemmed from ‘removing even the consideration of hormones or surgery,” as options
for GID treatment.129 In Brooks v. Berg, the District Court for the Northern District of New
York also found that a “blanket denial of medical treatment is contrary to a decided body of case
law,” and that “[p]risons must provide inmates with serious medical needs some treatment based
on sound medical judgment.” The court continued: “[P]rison officials cannot deny transsexual
inmates all medical treatment by referring to a prison policy. . . .”130 Indeed, another sitting of this
court has found that treatment decisions concerning inmates with GID must be based on an
individualized judgment made by the inmate’s medical providers instead of a broad departmental
policy.131
126
See Mahan, 64 F.3d at 18.
127
Allard v. Gomez, 9 Fed. Appx. 793, 795 (9th Cir. 2001).
128
Fields v. Smith, 653 F.3d 550, 559 (7th Cir. 2011).
129
Id. at 551; see also Fields v. Smith 713 F. Supp. 2d at 865-67.
130
Brooks v. Berg, 270 F. Supp. 2d 302, 310 (N.D.N.Y. 2003) (vacated in part on other
grounds).
131
Kosilek, 221 F. Supp. 2d at 193 (Wolf, J.) (“It is permissible for the DOC to maintain a
presumptive freeze-frame policy. However, decisions as to whether psychotherapy, hormones,
and/or sex reassignment surgery are necessary to treat Kosilek adequately must be based on an
26
Because this case involves only prospective injunctive relief, the court must focus on the
state of affairs at the time of trial. “In order to obtain an injunction, the prisoner must prove that
the Defendant official was, at the time of trial, ‘knowingly and unreasonably disregarding an
intolerable risk of harm, and [that he] will continue to do so.’”132 As the Supreme Court has
emphasized, “[i]f the evidence establishes that an inmate faces an objectively intolerable risk of
serious injury, the defendants could not plausibly persist in claiming lack of awareness,” and the
responsible officials are thus required to take action to abate that risk.133
In sum, in order to obtain relief on her Eighth Amendment claim in this case, Plaintiff must
prove that: “(1) [s]he has a serious medical need; (2) which has not been adequately treated; (3)
because of [Commissioner Spencer’s] deliberate indifference; and (4) that deliberate indifference
is likely to continue in the future.”134
B.
Application
1.
Serious Medical Need
It is undisputed that Ms. Soneeya has a gender identity disorder, and it is well established
that GID may constitute a serious medical need.135 As with other mental illnesses, gender identiy
disorders have varying degrees of severity. Whether GID creates a serious medical need for
individualized medical evaluation of Kosilek rather than as a result of a blanket rule. . . . Those
decisions must be made by qualified professionals . . . such professionals must exercise sound
medical judgment.”) (internal citations and quotations omitted).
132
Id. at 183.
133
Farmer, 511 U.S. at 846 n.9.
134
Kosilek ,221 F. Supp. 2d at 184.
135
See id. at 184; Alexander v. Weiner, ___ F. Supp. 2d ___, 2012 WL 149492 (D. Mass
Jan. 18, 2012) (Tauro, J.); Field, 712 F. Supp. 2d at 862 (citing cases).
27
which the Eighth Amendment requires treatment in any given case depends on the severity of the
individual inmate’s disorder.136
In the Kosilek case, another sitting of this court found that an inmate with a GID
diagnosis and a similar history of “mental anguish,” suicide attempts, and self mutilation had a
serious medical condition for which the Eighth Amendment required treatment.137 Courts in other
circuits have similarly noted that gender identity disorder may constitute a serious medical need.
In De'Lonta v. Angelone the Fourth Circuit found that an inmate’s “need for protection against
continued self-mutilation constitutes a serious medical need to which prison officials may not be
deliberately indifferent.”138 The Seventh Circuit also recently affirmed the decision of the District
Court for the Eastern District of Wisconsin, which found that prisoners with GID suffered from a
serious medical need.139 Ms. Soneeya has clearly demonstrated that she has a serious medical
need because she has shown that she has a condition that has been diagnosed by a medical
professional, and that, if left untreated, is likely to cause her serious harm.
It is clear from the evidence presented in this case that Ms. Soneeya’s GID diagnosis
constitutes a serious medical need. The record reflects a history of suicidality and one attempt at
self castration while in DOC custody.140 Ms. Soneeya was initially diagnosed with GID (then
called transsexualism) in 1990, and that diagnosis was re-confirmed by a series of mental health
136
See Kosilek, 221 F. Supp. 2d at 184.
137
Id.
138
De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003).
139
Field, 653 F.3d at 544-555.
140
See Pl. Ex. 7 at 2 (1997 Seil Eval.); see also Trial Tr. at II 8:5-11:17 (Testimony of
Katheena Soneeya).
28
evaluations up to and including the reports prepared by both Plaintiff and Defendant in
preparation for this trial.141 She has a serious medical need, “that has been diagnosed by a
physician as mandating treatment.”142
As Ms. Soneeya has gradually received access to more treatment for her GID, her mental
stability and adjustment have improved.143 She has fixated on sex reassignment surgery as the
solution to her problems since the time of her initial diagnosis in 1990.144 Ms. Soneeya testified at
trial that she is “running on hope” that she will receive sex reassignment surgery, and that she
does not “want to go through [her] natural life sentence tormented, miserable [and] in pain, . . .
being ridiculed because [she is] different.”145
2.
Adequacy of Treatment
Ms. Soneeya’s treatment while in DOC custody has been characterized by a pattern of
delays, inconsistencies, and seemingly endless security review. Ms. Soneeya first received her
diagnosis of GID in 1990, after she had been in custody for eight years.146 It was not until nine
141
See, e.g., Pl. Ex. 1 (1990 Power Eval.) at 6; Pl. Ex. 5 (1992 King Eval.) at 3; Pl. Ex. 7
(1997 Carpenter Eval.) at 17; Pl. Ex. 10 (1998 Seil Eval.) at 8; Pl. Ex. 11 (1999 Hickey
Treatment Plan) at 1-2.
142
Mahan, 64 F.3d at 18 (internal quotations omitted).
143
See Trial Tr. I 77:11-82:12; see also Pl. Ex. 45 (2008 Levine Report) at 3-4.
144
See Pl. Ex. 1 (1990 Power Eval.) at 6; Pl. Ex. 5 (1992 King Eval.) at 3; Pl. Ex. 7 (1997
Carpenter Eval.) at 17; Pl. Ex. 10 (1998 Seil Eval.) at 8; Pl. Ex. 11 (1999 Hickey Treatment Plan)
at 1-2; Pl. Ex. 44 (2011 Levine Report) at 8-9; Pl. Ex. 45 (2008 Levine Report) at 1-2; Pl. Ex. 46
(2003 Fenway Eval.) at 6; Pl. Ex. 47 (2010 Kaufman Eval.) at 1-3.
145
146
Trial Tr. II-32:20-33:3 (Testimony of Katheena Soneeya).
Pl. Ex. 1 (1990 Power Eval.) at 3 (diagnosing Ms. Soneeya with “transsexualism,” and
discussing her “gender identity issues”), Def. Ex. A. (Plaintiff’s Medical Records).
29
years later, and after the settlement of a lawsuit against the DOC, that Ms. Soneeya first received
a treatment plan that prescribed treatment in accordance with the Standards of Care.147 It was not
until four years after that, in the summer of 2003, that Ms. Soneeya was evaluated by a medical
professional with expertise in GID.148 In the fall of 2003 that she was able to begin hormone
treatment under the care of Dr. Maria Warth.149 Even then, Dr. Warth had no previous
experience in treating patients with GID.150 Once Ms. Soneeya began hormone therapy, she
experienced a number of negative side effects, changes in treatment, and difficulties with dosing
and administration.151 Ms. Soneeya has recently started to see a new endocrinologist, who she
expects to further adjust her hormone regimen.152
Ms. Soneeya’s efforts to obtain female canteen items and clothing, which her medical
providers indicated were necessary for her treatment, were similarly drawn out over several years.
In July 2005, two years after its initial report, the Fenway Clinic indicated that it was medically
necessary for Ms. Soneeya to have access to methods to further feminize her appearance. These
included permanent removal of facial and body hair, access to women’s clothing, including a bra,
underpants, and shoes, and access to canteen items available to other women in DOC custody,
147
Def. Ex. H. (Hickey Mental Health Treatment Plan).
148
See Pl. Ex. 46, Trial Tr. I at 64:23-66:18.
149
Joint Ex. 8 (Dep. of Dr. Warth) at 8:21-9:3, 9:10-11:15, 37:22-38:7.
150
Id. at 31:12-32:25, 88:13-89:7.
151
Trial Tr. II at 21:13-23:6 (Testimony of Katheena Soneeya).
152
Trial Tr. II at 22:20-23, 40:18-41:20 (Testimony of Katheena Soneeya).
30
such as lipstick and mascara.153 Dr. Kaufman was required to formalize her recommendations for
these items in a letter to Dr. Appelbaum in 2005 because, “the inmates were having a very difficult
time receiving [access to those canteen and clothing items].” A formal letter was necessary to
allow Ms. Soneeya to gain access to her recommended treatment because, “the DOC didn’t want
to produce them.”154 Between 2005 and late 2009, the DOC denied repeated requests for access
to female clothing and canteen items both from Ms. Soneeya and from UMass, the DOC’s
contractual medical provider, on Ms. Soneeya’s behalf.155 The DOC’s stated reason for not
providing these items in a timely fashion is that these recommendations were not on the proper
type of medical treatment request form.156 This form was purportedly required to initiate a
security review of the requested treatment, but it is not clear from any of the evidence that there
was ever a standardized process for either medical or security review of treatment
recommendations for GID inmates prior to the implementation of the 2010 GID policy.157
The DOC has provided Ms. Soneeya with psychotherapy on an ongoing basis since her
initial diagnosis in 1990.158 This therapy has, however, almost exclusively been with providers
153
Pl. Ex. 23 (Letter from Dr. Kaufman to Dr. Appelbaum).
154
Trial Tr. I-72:15-22 (Testimony of Dr. Randi Kaufman).
155
See Trial Tr. I at 70:4-10; Pl. Ex. 23 (Letter from Dr. Kaufman to Dr. Applebaum);
Joint Ex. 4 (Dep. of Terre Marshall) at 114:2-118:22.
156
See Joint Ex. 4 (Dep. of Terre Marshall) at 109:7-13, 114:2-125:25. Trial Tr. II161:23-162:3, 165:17-167:2 (Testimony of Lawrence Weiner).
157
See Joint Ex. 4 (Dep. of Terre Marshall) at 37:9-41:22, 109:7-13, 114:2-125:25.
158
See Def. Ex. A (Plaintiff’s Medical Records).
31
who have little or no experience or expertise in the treatment of patients with GID.159 Although
the DOC’s first mental health care contractor, UMass, hired the Fenway Clinic, a group with
expertise in the treatment of GID, to assess Ms. Soneeya and others within DOC custody
suffering from gender dysphoria, the treatment recommendations from outside experts were often
delayed or not implemented at all.160 In 2007, after years of disagreements with UMass over the
treatment of GID prisoners and the implementation of the Fenway Clinic’s recommendations, the
DOC hired a new contractor, MHM, to provide mental health care to the inmates in DOC
custody.161 The DOC switched mental health providers in part because it disagreed with UMass
and the Fenway Clinic’s treatment recommendations for inmates with GID.162 After the switch
from UMass to MHM, inmates suffering from GID were reevaluated by MHM’s GID expert, Dr.
Stephen Levine.
It was understood by Ms. Soneeya’s diagnosing, treating, and reviewing clinicians that sex
reassignment surgery would not be permitted while she was in prison.163 In 2010, the DOC
formalized this approach by adopting its GID Treatment Policy, which contains a blanket
prohibition on laser hair removal, cosmetic surgery, and sex reassignment surgery as treatments
159
See supra note 57.
160
See Joint Ex. 4 (Dep. of Terre Marshall) at 114:2-125:25; see also discussion of
Plaintiff’s medical history supra section II A.
161
See Trial Tr. II-142:18-22, 143:13-25 (Testimony of Dr. Diener).
162
See id.
163
See Trial Tr. II 101:2-11 (Testimony of Dr. Andrade); Joint Ex. 4 (Dep. of Terre
Marshall) at 85:12-17; Joint Ex. 5 (Dep. of William Micucci) at 119:24-120:4; Trial Tr. III at
57:20-58:1 (Testimony of Dr. Levine).
32
for GID inmates.164 Because of this blanket policy, Ms. Soneeya has never been evaluated by
MHM or the DOC for sex reassignment surgery or further feminization. Indeed, her most recent
interview with Dr. Levine was solely for the purpose of this litigation.165
The 2010 GID policy establishes pathways for medical and security review of treatment
recommendations for inmates with GID. While the implementation of some procedure for dealing
with treatment recommendations for patients with GID is undoubtedly an improvement, the policy
is flawed in that it creates blanket prohibitions on some types of treatment that professional and
community standards indicate may sometimes be necessary for the adequate treatment of GID.166
This blanket ban on certain types of treatment, without consideration of the medical requirements
of individual inmates, is exactly the type of policy that was found to violate Eighth Amendment
standards in other cases both in this district and in other circuits.167
Here, as in the Kosilek case, the DOC has approached Ms. Soneeya’s needs as a legal,
rather than a medical, problem, and have failed to offer her the type of individualized medical
164
Pl. Ex. 50 (DOC 2010 GID Policy) at 652.03(D)(6).
165
Trial Tr. II at 89:10-92:25 (Testimony of Dr. Andrade).
166
See Pl. Ex. 50 (DOC 2010 GID Policy) at 652.03(D)(6); Trial Tr. I at 55:6-64:22
(Testimony of Dr. Kaufman), Pl. Ex. 53 (SOC v7) at 54-55; Kosilek 221 F. Supp. 2d at 186
(noting that Plaintiff was precluded from receiving treatments commensurate “with modern
medical science that prudent professionals in the United States prescribe as medically necessary
for some . . . individuals suffering from gender identity disorders.”).
167
See Kosilek, 221 F. Supp. 2d at 193 (requiring individual assessment of inmate’s
medical needs rather than application of blanket “freeze-frame” approach to GID treatment);
De’Lonta, 330 F.3d at 635 (overturning dismissal of prisoner’s Eighth Amendment suit where she
alleged inadequate treatment under a blanket policy that prohibited hormone therapy for GID);
Field, 653 F.3d at 558-59 (upholding the District Court’s invalidation of Wisconsin statute that
created a blanket ban on hormone therapy and sex reassignment surgery for inmates with GID).
33
assessment that the law requires.168 In Kosilek, the court emphasized that while federal courts
should defer to the considered judgment of prison officials regarding inmate care and safety, there
is no such considered judgment where an inmate has not received an individualized medical
evaluation.169 In that litigation, the court found that the plaintiff inmate was not receiving
adequate treatment for her GID where she had not been evaluated for hormone therapy, sex
reassignment surgery, or other treatments for her condition.170 The DOC has pointed to Ms.
Soneeya’s progress in achieving stability in prison, and her lack of current problems with
instability, anxiety, and depression as evidence that her GID is being adequately treated.171 While
it is clear that Ms. Soneeya has made progress, and that she appreciates the help she has received
from her clinicians at the DOC, it is unclear whether Ms. Soneeya’s treatment has succeeded in
mitigating her severe gender dysphoria and removed the risk of serious future harm. While the
DOC has offered to treat any depression or anxiety that might occur as a result of the denial of
SRS, treating the symptoms is not a substitute for treating Ms. Soneeya’s underlying condition.
The DOC cannot, therefore, claim that Ms. Soneeya is receiving adequate treatment for her
serious medical needs because it has not performed an individual medical evaluation aimed solely
at determining the appropriate treatment for her GID under community standards of care.
168
See, e.g., Trial Tr. II at 87:2-92:25 (Testimony of Dr. Andrade) (Levine and Kaufman
reports were prepared for litigation purposes and didn’t guide treatment decisions for Ms.
Soneeya).
169
Kosilek, 221 F. Supp. 2d at 186.
170
Id. at 188.
171
See Def. Prop. Find. Facts [#122] at 23-24 (“Merleen Mills testified that during the time
she worked with Soneeya, she saw Soneeya become calmer, less anxious and generally welladjusted.” (Joint Ex. 6 (Dep. of Merleen Mills) at 26:6-20)).
34
3.
Deliberate Indifference
In Battista v. Clarke, the First Circuit held that ‘deliberate indifference’ may be found even
in the absence of “any established sinister motive or ‘purpose’ to do harm.” Rather, a pattern of
“delays, poor explanations, missteps, changes in position and rigidities,” may be used to infer
deliberate indifference on the part of the Department of Corrections.172 In this case, as discussed
above, the DOC has been anything but responsive to Ms. Soneeya’s needs or the
recommendations of her medical providers. Ms. Soneeya waited nine years after her initial
diagnosis to receive a treatment plan that applied community standards of care. She waited
another four years to receive an evaluation by an expert in gender identity disorders. She has yet
to be evaluated by an expert within the DOC for further feminization or sex reassignment surgery.
Ms. Soneeya has been forced to wait months, and sometimes years for the implementation of
basic recommendations, such as access to female undergarments and makeup. This pattern of
denials and delay occurred without any formal structure in place for reviewing treatment
recommendations, or security concerns.
Here, as in the Battista case, DOC representatives responded to recommendations of their
own medical advisers regarding treatment for GID inmates by going “back and forth apparently
looking for an out.”173 When dissatisfied with UMass and the Fenway Clinic’s recommendations,
the DOC hired a new mental health services provider. The DOC also denied Ms. Soneeya’s
requests for a bra and canteen items, that were prescribed as medically necessary, for “security
reasons” without saying what those reasons were or making any sort of individualized security
172
Battista 645 F.3d at 455.
173
See id., 645 F.3d at 454-455.
35
inquiry into the specifics of Ms. Soneeya’s situation.
While courts should defer to the considered judgment of prison administrators in the
“adoption and execution of policies and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional security,”174 no deference is required
where it is apparent that a considered judgment has not been made. The DOC’s 2010 GID policy
removes the decision of whether sex reassignment surgery is medically indicated for any individual
inmate from the considered judgment of that inmate’s medical providers. It does so without
engaging in an individualized review of security concerns. In Field v. Smith, the Seventh Circuit
found that a Wisconsin statute that banned hormone therapy and sex reassignment surgery for
inmates was unconstitutional where that statute “remove[d] even the consideration of hormones
or surgery for inmates with gender issues.”175 The district court in that case emphasized that
deliberate indifference may be found where a prison official “consciously chooses to disregard a
nurse’s or doctor’s directions in the face of medical risks,” and that by removing decisions
regarding what treatment is medically necessary from the discretion of an inmate’s medical
providers, the statute was facially invalid.176
Here, as in Battista, Plaintiff is seeking only injunctive relief, and therefore, “the separate
roles of individual defendants [need not] be sorted out.”177 It is clear, however, that the 2010
GID policy rests final treatment decisions as to all GID inmates within the discretion of the
174
Whitley v. Albers, 745 U.S. 312, 321-22 (1986) (quoting Bell v. Wolfish, 441 U.S. at
175
Fields, 653 F.2d at 558 (quoting Fields 712 F. Supp. 2d at 865-67).
176
Fields, 712 F. Supp. 2d at 866-67 (affirmed by Fields1, 653 F.2d 550 (7th Cir. 2011)).
177
Battista, 645 F.3d at 452.
547).
36
Commissioner.178 Unlike the DOC’s policies with respect to other medical conditions, treatment
recommendations for GID inmates are subject to review by a security committee, and the
Commissioner has the last word as to whether a form of therapy will be made available to an
inmate.179 Here, as in the Kosilek case, because the GID policy prohibits certain treatments,
decisions concerning Plaintiff’s medical care were, “as a practical matter, made by [Spencer],
rather than by the medical professionals employed by the DOC.”180
In Kosilek, the court reasoned that its decision put the Department of Corrections, “on
notice that [Plaintiff’s] severe gender identity disorder constitutes a serious medical need,” and
emphasized that, “decisions as to whether psychotherapy, hormones and/or sex reassignment
surgery are necessary to treat [Plaintiff] adequately must be based on an ‘individualized medical
evaluation’ rather than as a result of a blanket rule.”181 Failure to offer such an individualized
assessment in the face of Plaintiff’s serious medical needs constitutes is sufficient to allow the
court to conclude that there is deliberate indifference in this case.
Commissioner Spencer and the DOC are indisputably aware of Ms. Soneeya’s serious
medical need. In light of the Kosilek case and others like it in this district, including Ms.
Soneeya’s own prior litigation, it is clear that Commissioner Spencer and the DOC were aware
that GID may constitute a serious illness that requires treatment. Since Ms. Soneeya’s initial
diagnosis she has consistently sought, and her providers have consistently recommended further
178
Pl. Ex. 50 (DOC 2010 GID Policy) at 652.06(A)(4).
179
See Joint Ex. 4 (Dep. of Terre Marshall) at 39:2-41:16; Pl. Ex. 50 (DOC 2010 GID
Policy) at 652.06(A)(4).
180
Kosilek, 221 F. Supp. 2d at 186.
181
Id. at 193.
37
feminization. It is also evident from her requests for sex reassignment surgery and more
psychotherapy that Ms. Soneeya’s severe gender dysphoria persists, in spite of the treatment she
has already received. Nonetheless, the DOC has declined to engage in an individualized inquiry
into Ms. Soneeya’s medical needs, and instead has relied on blanket prohibitions and amorphous
security concerns that do not reflect the considered opinions of individuals within the DOC who
regularly interact with Ms. Soneeya in either medical or security capacities. The DOC and
Commissioner Spencer are thus aware of Ms. Soneeya’s serious medical need, and yet have
chosen to deliberately disregard that need by failing to undertake a good faith evaluation of her
medical care, or the security implications of the various treatment options.182
4.
Likely to Continue
The record before the court indicates that the DOC’s pattern of obstruction and delay is
likely to continue in the future. It was not until 2010 that the DOC implemented the GID policy
in this case. The GID policy itself does not allow for consideration of sex reassignment surgery,
laser hair removal, or other plastic surgery to treat GID inmates. The policy on its face has no
exceptions for cases where those procedures may be found to be medically necessary, and it was
the testimony from the DOC’s own contract-employees that they believe the Policy to prohibit
some forms of treatment.183 At trial, the DOC’s GID expert testified that he does not believe that
the real life experience is possible in the prison environment, and that, therefore, sex reassignment
182
See, e.g., Trial Tr. IV at 25:10-27:8 (Testimony of Duane MacEachern) (indicating that
approval of certain canteen items for Ms. Soneeya had been denied by Commissioner for “security
reasons” without further explanation); Trial Tr. IV at 50:9-51:1 (indicating that a person who had
previously been male might be able escape over the fence that surrounds MCI Framingham,
without consideration of Ms. Soneeya’s individual physical abilities).
183
Trial Tr. II at 57:20-58:7 (Testimony of Dr. Levine); Trial Tr. II at 101:6-101:16
(Testimony of Dr. Andrade); Trial Tr. II at 134:5-21 (Testimony of Dr. Diener).
38
surgery, may never be medically necessary for an inmate.184 This is contrary to the vast weight of
the literature in the field, and the provisions of the Standards of Care.
At this time, it cannot be said that sex reassignment surgery is indisputably medically
necessary, or that the provision of sex reassignment surgery to Ms. Soneeya would not cause
insurmountable security concerns. There has been ample testimony to support both the
contention that sex reassignment surgery is necessary for Ms. Soneeya’s GID, and that she has
not made sufficient progress in her psychotherapy to be ready to take that dramatic and
irreversible step. The testimony in this case, and the evaluation by the DOC’s GID expert were
prepared in the course of litigation, and were, therefore, not designed to advance or facilitate Ms.
Soneeya’s treatment. Similarly, although none of the experts currently recommend laser hair
removal for Ms. Soneeya, it may become necessary at some point in the future in light of other
developments in her care.185 It should thus be available for consideration in Ms. Soneeya’s case as
it is for patients in the community. It is clear that with the current GID policy in place, and given
the DOC’s long history of obstruction and delay, it is likely that the DOC will persist in not
providing Ms. Soneeya with an individualized evaluation by a qualified medical professional as to
her readiness for sex reassignment surgery, and the security implications thereof.
Because the DOC has shown deliberate indifference to Ms. Soneeya’s serious medical
need through its pattern of delay, and failure to provide her with individualized treatment, and
because such treatment is likely to continue in the future under the DOC’s new GID policy, it is
clear that injunctive relief is appropriate in this case. Under the Prison Litigation Reform Act,
184
Trial Tr. III at 24:13-26:25 (Testimony of Dr. Levine).
185
See Pl. Ex. 47 (2010 Kaufman Report) at 5.
39
prospective relief must be narrowly tailored, and must “extend no further than necessary to
correct the violation of the Federal right of a particular plaintiff or plaintiffs.”186 The Act goes on
to state that “[t]he court shall not grant or approve any prospective relief unless the court finds
that such relief is narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation of the Federal
right.”187
In light of these considerations, and consistent with the analysis above, this court finds that
the DOC’s GID policy is facially invalid insofar as it determines, without exception, that certain
accepted treatments for GID are never medically necessary for inmates in GID custody. In Ms.
Soneeya’s case, the DOC must conduct an individualized assessment of her readiness for sex
reassignment surgery, applying community standards for acceptable care of patients with GID.
This must be followed by a good faith security review, which takes into account Ms. Soneeya’s
individual history of incarceration and present circumstances.
C.
State Law Claims
Ms. Soneeya also alleges that her rights under Article 114 of the Amendments to the
Massachusetts Constitution have been violated because the DOC has discriminated against her
because of a disability. Absent an explicit waiver, Eleventh Amendment immunity precludes
private litigation against states and state agencies in federal court.188 Massachusetts law states
186
18 U.S.C. § 3626(a)(1)(A).
187
Id.
188
Penhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Bd. of Trs. of the
Univ. of Alabama v. Garrett, 531 U.S. 356, 364 (2001); City of Boerne v. Flores, 521 U.S. 507
(1997); Cory v. White, 457 U.S. 85, 90 (1982).
40
that actions to enforce rights protected by Article 114 of the Amendments to the Massachusetts
Constitution must be brought in State superior court.189 It is well established that “[a] state’s
consent to be sued in its state courts is not sufficient to constitute a waiver of its Eleventh
Amendment immunity.”190 Because the Commonwealth has not waived its Eleventh Amendment
immunity for actions seeking to enforce rights secured by Article 114 in Federal Court, this court
does not have jurisdiction to hear Ms. Soneeya’s state law claims.
IV.
Conclusion
For the foregoing reasons, this court finds that Commissioner Spencer and the Department
of Corrections have violated Ms. Soneeya’s rights under the Eighth Amendment because of their
deliberate indifference to her serious medical needs. Accordingly, judgment is entered for Plaintiff
on Counts I and II of her Second Amended Complaint. The DOC must provide Ms. Soneeya
with treatment for her GID in accordance with community standards for adequate care, including
but not limited to an individualized assessment of her hormone regimen, psychotherapy needs, and
readiness for sex reassignment surgery by a medical provider with expertise in treating patients
with GID. The DOC must also conduct a good faith security review of any treatment
recommendations that relies on articulable reasons for approving or denying treatment given the
specific context of Ms. Soneeya’s incarceration. It cannot be said, however, that an order for sex
reassignment surgery is undoubtedly medically necessary for Ms. Soneeya at this time given the
broad disagreement between her various medical providers. As stated above, this court does not
189
Mass. Gen. Laws c. 93, § 103; Shedlock v. Dept. of Correction, 442 Mass. 852-53 n.6
(2004).
190
Erwin Chemerinsky, Federal Jurisdiction 440 (4th ed. 2003); See, e.g., Florida Dept. of
Health & Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U.S. 147, 149-150 (1981).
41
have jurisdiction over Ms. Soneeya’s state law claims, and thus declines to address Ms. Soneeya’s
allegations in Count III of the Second Amended Complaint.
AN ORDER HAS BEEN ISSUED.
/s/ Joseph L. Tauro
United States District Judge
42
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