Jackson, Lonnie v. Kallas, Kevin et al

Filing 41

ORDER that Plaintiff Lonnie Jackson is GRANTED leave to proceed on her Eighth Amendment claims against defendants Kevin Kallas, Jeff Anders, Mary Muse, Marlena Larson, John Doe, James Zanon, Paul Bekx, Amy Pechacek, Kevin Carr and Larry Fuchs, in t heir official capacities for purposes of injunctive relief, for their alleged failure to provide her adequate treatment for gender dysphoria. Plaintiff's individual capacity and equal protection claims and defendants Ryan Holmacher, James Greer, Cathy Jess, Robert Hable, Gary Ankarlo, Hugh Johnson, Cindy O'Donnell, Mark Wiegerber and Corey Sabish are DISMISSED. Signed by District Judge Barbara B. Crabb on 3/9/2020. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LONNIE JACKSON,
OPINION AND ORDER
Plaintiff,
17-cv-350-bbc
v.
DR. KEVIN KALLAS, JEFF ANDERS,
RYAN HOLMACHER, JAMES GREER,
MARY MUSE, CATHY A. JESS, ROBERT HABLE,
GARY ANKARLO, HUGH JOHNSON,
CINDY O’DONNELL, MARK WIEGERBER and
COREY SABISH,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Lonnie Jackson, a transgender inmate at the Waupun Correctional Institution,
is proceeding on claims that defendants violated her constitutional rights under the Eighth
Amendment and the equal protection clause by refusing to provide her an orchiectomy and sex
reassignment surgery. Plaintiff, who is now represented by counsel, has filed a second

amended complaint in which she dismisses several defendants, adds new defendants, adds
allegations in support of her Eighth Amendment official capacity claims and dismisses her
individual capacity and equal protection claims. Dkt. #38. The second amended complaint
is now ready for screening under 28 U.S.C. § 1915A.
Having reviewed the second amended complaint, I conclude that plaintiff may
proceed on her deliberate indifference claims under the Eighth Amendment against the
following defendants in their official capacities for purposes of injunctive relief: original
defendants Kevin Kallas, Jeff Anders and Mary Muse and new defendants Marlena Larson,

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John Doe, James Zanon, Paul Bekx, Amy Pechacek, Kevin Carr and Larry Fuchs. Plaintiff’s
individual capacity claims, equal protection claims will be dismissed, as will defendants Ryan
Holmacher, James Greer, Cathy Jess, Robert Hable, Gary Ankarlo, Hugh Johnson, Cindy
O’Donnell, Mark Wiegerber and Corey Sabish.
Plaintiff alleges the following facts in her second amended complaint. (The facts set forth
in the order screening plaintiff’s first amended complaint are incorporated by reference. Dkt.
#18.)

ALLEGATIONS OF FACT
Plaintiff Lonnie Jackson, also known as Anastacia Sabrina-Loni Jackson, is a transgender
male-to-female inmate incarcerated at the Waupun Correctional Institution. She experiences
gender dysphoria and mental distress because of the conflict between her male anatomical
features and her female gender identity. Defendants are all employees of the Wisconsin
Department of Corrections: Kevin Carr is the secretary, Amy Pechacek is the deputy secretary,
Kevin Kallas is the mental health director for the Bureau of Health Services, Jeff Anders is the
psychiatry director for the bureau, John Doe is the director of the bureau, Paul Bekx is the
medical director of the bureau, Mary Muse is the nursing director of health services, James
Zanon is the deputy warden of Oshkosh Correctional Institution and Larry Fuchs is the security
chief for the department.
The Gender Dysphoria Committee was established under Division of Adult Institutions
Policy 500.70.27 to evaluate claims from inmates with gender dysphoria and to determine the
necessary method of treatment.

At all times relevant to plaintiff’s complaint, all of the

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defendants except Carr and Pechacek have been members of the committee. Defendant Carr
has ultimate authority for the administration of health care for inmates. Defendant Pechacek
and the remaining defendants all have the authority to implement state laws regarding the
treatment of inmates at Wisconsin correctional facilities, including evaluating prisoner health
care issues and denying or granting relief requested by inmates.
Plaintiff received a definitive diagnosis of gender identity disorder from psychological
services on December 22, 2009. On December 6, 2011, Dr. Lesley Baird, a psychological
associate at Waupun Correctional Institution, evaluated plaintiff and determined that she met
the criteria for gender identity disorder. On December 15, Dr. Cynthia Osborne, a gender
specialist working for the Department of Corrections, evaluated plaintiff for gender dysphoria
and possible hormonal treatment.

Dr. Osborne subsequently issued a gender identity

consultation report on June 15, 2012, in which she recommended that plaintiff be given
hormone treatment, participate in supportive counseling and be considered for “feminizing
allowances,” such as make-up and being referred to by a feminine name and pronouns. On July
31, 2012, defendant Kallas informed plaintiff that she was approved for hormone treatment.
Plaintiff began hormone therapy on or about December 25, 2012. After December 2012,
plaintiff made numerous formal and informal requests for sex reassignment surgery. Her
hormone treatment varied over the next few years, and she continued to suffer severe effects of
gender identity disorder.
On December 16, 2014, Dr. Osborne evaluated plaintiff to determine whether she was
a candidate for surgical treatment. On January 14, 2015, Dr. Osborne recommended sex
reassignment surgery for plaintiff and suggested that an orchiectomy would be an alternative to

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full sex reassignment surgery because it presented fewer medical risks. On January 21, plaintiff
wrote to the Gender Dysphoria Committee to request the recommended sex reassignment
surgery, as well as electrolysis and light make-up.
The Gender Dysphoria Committee denied plaintiff’s January 21, 2015 request for
surgery, and all of plaintiff’s subsequent appeals and requests, based on Division of Adult
Institutions Policy 500.70.27, which states that “due to the limitations inherent in being
incarcerated, a real-life experience for the purpose of gender reassignment therapy is not possible
for inmates who reside within a correctional facility. However, treatment and accommodations
may be provided within the correctional facility to lessen gender dysphoria.” DAI Policy
500.70.27, 3 (2015). The committee also has denied all inmate requests for sex reassignment
surgery on the same ground. Plaintiff also filed offender complaints in 2015 and 2016 regarding
surgery, electrolysis and light make-up, and they were all denied.

OPINION

Plaintiff alleges that defendants failed to provide her sex reassignment surgery and
other appropriate treatment for gender dysphoria, including sex reassignment surgery,
orchiectomy, light make-up and electrolysis, in violation of her rights under the Eighth
Amendment. She alleges that defendants were fully aware that she faced a serious medical
need for sex reassignment surgery because both her treating psychologist and a specialist
working for them evaluated her and recommended surgical treatment, but they continue to
deny it as a matter of “blanket policy,” causing her ongoing anguish and suffering. Plaintiff
is suing the individual defendants in their official capacities for injunctive relief.
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For the same reasons explained in the order screening plaintiff’s first amended
complaint, plaintiff’s allegations are sufficient to state a claim for deliberate indifference
under the Eighth Amendment. Fields v. Smith, 653 F.3d 550, 554-59 (7th Cir. 2011)
(enforcement of statute prohibiting all use of hormone therapy and sex reassignment surgery,
regardless of medical need, qualified as deliberate indifference under Eighth Amendment);
Rosati v. Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015) (citing Fields with approval and
finding that allegations that prison officials were aware of transgender inmate’s medical
history and need for treatment but denied sex reassignment surgery because of blanket policy
against such surgery sufficient to state deliberate indifference claim); McGowan v. Hulick,
612 F.3d 636, 640 (7th Cir. 2010) (claim of delayed care may violate Eighth Amendment
if it caused inmate’s condition to worsen or unnecessarily prolonged her pain); Konitzer v.
Frank, 711 F. Supp. 2d 874, 909 (E.D. Wis. 2010) (recognizing that use of modest makeup
and facial hair remover, among other things, are part of real-life experience as a female in
male institution). In addition, because plaintiff alleges that defendants have the authority
either as Department of Corrections officials or members of the Gender Dysphoria
Committee to evaluate the health care needs of transgender inmates, grant or deny relief
requested by transgender inmates and implement state laws regarding the treatment of
transgender inmates at Wisconsin state correctional facilities, she may proceed against them

in their official capacities for purposes of injunctive relief. Williams v. Wisconsin, 336 F.3d
576, 581 (7th Cir. 2003) (“Official-capacity suits against state officials seeking prospective
relief are permitted by § 1983.”) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58,

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71 n. 10 (1989)).

ORDER
IT IS ORDERED that
1. Plaintiff Lonnie Jackson is GRANTED leave to proceed on her Eighth Amendment
claims against defendants Kevin Kallas, Jeff Anders, Mary Muse, Marlena Larson, John Doe,
James Zanon, Paul Bekx, Amy Pechacek, Kevin Carr and Larry Fuchs, in their official
capacities for purposes of injunctive relief, for their alleged failure to provide her adequate
treatment for gender dysphoria.
2. Plaintiff’s individual capacity and equal protection claims and defendants Ryan
Holmacher, James Greer, Cathy Jess, Robert Hable, Gary Ankarlo, Hugh Johnson, Cindy
O’Donnell, Mark Wiegerber and Corey Sabish are DISMISSED.
Entered this 9th day of March, 2020.
BY THE COURT:
/s/
_____________________
BARBARA B. CRABB
District Judge

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