MERLIN C. LONG v CRISPUS C. NIX
___________
No. 95-1613
___________
Merlin C. Long, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Crispus C. Nix; Sally Chandler- *
Halford, as Director of the *
Iowa Department of Corrections; *
Thomas Hundley, Warden of ISP; *
Paul W. Grossheim; Paul W. *
Loeffelholz; *
*
Appellees. *
___________
Submitted: February 23, 1996
Filed:
___________
Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
___________
BOWMAN, Circuit Judge.
Merlin C. Long is serving a life sentence at the Iowa State
Penitentiary (ISP) for the brutal murder of a woman. See Long v.
Brewer, 253 N.W.2d 549, 551 (Iowa 1977). He filed this 42 U.S.C.
SS 1983 (1994) lawsuit against officials of the Iowa Department of
Corrections seeking, among other things, treatment for a gender-
identity disorder and damages for the defendants' alleged
deliberate indifference to his gender-identity disorder. Based on
the evidence introduced during a one-day bench trial, the District
Court(1) held that (1) the extent of Long's gender-identity disorder
does not constitute a serious medical need, (2) even if Long has a
serious medical need, the defendants were not deliberately
indifferent to that need, and (3) the defendants were entitled to
qualified immunity from Long's claim for damages. Long v. Nix, 877
F. Supp. 1358, 1365-67 (S.D. Iowa 1995). Long timely appeals from
the judgment of the District Court, and we affirm.
I.
Long began his stay at ISP in 1964. He arrived in full drag,
but initially prison officials refused to let him wear women's
clothes. Following a hunger strike that began shortly after his
arrival, Long was allowed to wear women's clothes and make-up on a
regular basis. This privilege, however, was revoked in 1981 after
a member of the Iowa Parole Board complained to prison officials
about Long's attire. Since 1981 Long repeatedly has sought
permission to wear women's clothing and make-up. ISP officials
have denied his request each time. He also has requested hormone
therapy and sex-change surgery. Aside from these requests,
however, Long has not sought, nor have prison health services
employees ordered, any treatment for a gender-identity disorder.
In fact, Long has repeatedly refused to cooperate with prison
psychologists and psychiatrists over the past twenty years. See
Long, 877 F. Supp. at 1362; see also Program Review Committee Pre-
Parole Evaluation (Feb. 3, 1978); Psychiatric Consultation
(Apr. 24, 1981); Psychiatric Evaluation (Feb. 15, 1986).
As the District Court found, Long's 1990 evaluation was
unproductive because Long presented himself in a "hostile and
belligerent," "verbally abusive and abrasive manner." Long, 877
F. Supp. at 1362. During his 1991 psychological evaluation, all
Long requested was "what he deserves": a transfer from ISP to a
less structured setting. Id. The psychologist concluded that
"[a]t this point in time there are no psychological or psychiatric
issues that need to be addressed." Psychological Evaluation
(Jan. 30, 1991). In 1992, Long "indicated no mental health issues
or problems," and the psychologist concluded that there were no
psychological issues that needed to be addressed. Psychological
Evaluation (Jan. 29, 1992). In 1993, Long refused to participate
in a psychological interview and "no meaningful psychological
report" was submitted. Long, 877 F. Supp. at 1362. In contrast to
Long's behavior, the record shows that prison officials have been
responsive to Long's requests for treatment when they were
reasonable. In 1982, for example, Long requested "treatment and
evaluation" at the Iowa State Medical Facility (ISMF). ISMF
Referral (Feb. 12, 1982). His request was granted, and he was
transferred to ISMF. Later that same year he was transferred at
his own request to a Missouri maximum security prison where he was
allowed to wear women's clothing at all times. In 1986 he returned
to ISP. His complaints to a member of the medical staff at that
time "center[ed] around the fact that he will not be allowed to
have the numerous articles of female clothing which he owns."
Psychiatric Evaluation (Feb. 15, 1986). Long, however, never has
shown a continued interest in psychiatric evaluation or treatment
either for depression or his gender-identity disorder. "In 1994,
Long [again] declined to be interviewed for his annual
psychological evaluation. Long explained that he is apprehensive
about meeting with ISP staff members because they are unsympathetic
and because he thinks it is unlikely that he will be paroled."
Long, 877 F. Supp. at 1362.
At trial, Dr. Walter O. Bockting, Ph.D., testified that Long
has developed an intense gender dysphoria. His report diagnosed
Long as suffering from a gender-identity disorder not otherwise
specified, a sexual disorder not otherwise specified, and an
antisocial-personality disorder. Dr. Bockting concluded that Long
has other emotional problems in addition to his gender-identity
disorder, stating that tests indicated that Long "may be demanding,
rebellious, hostile, aggressive, antisocial, impulsive,
exhibitionistic, and promiscuous." Id. Dr. Bockting suggested
that these traits result from the dysfunctional family setting in
which Long was raised. Id.
Several of the psychologists and psychiatrists that had worked
with Long at ISP also testified at trial. The state's principal
expert witness was Dr. Paul W. Loeffelholz, M.D. For the most
part, Dr. Loeffelholz did not disagree with Dr. Bockting's
diagnoses. As the District Court noted, however, the diagnoses
were in conflict on some points. See id. at 1365-66. The main
disagreement between the experts was whether Long's gender-identity
disorder is his predominate psychiatric condition. Dr. Bockting
stated that Long's primary psychiatric condition is his gender-
identity disorder. Dr. Loeffelholz testified that Long's gender-
identity disorder is intermittent and generally exhibited when Long
is under stress, while his "primary psychological problem is his
serious antisocial and manipulative behavior." Id. at 1363. At
bottom, the difference in diagnoses turns on whether Long primarily
wants to wear women's clothing to achieve sexual arousal or to
satisfy his desire to be a woman.
Despite his opinion that Long's gender-identity disorder is
Long's principal condition, Dr. Bockting admitted that he believes
that Long wears women's clothing both to express his feminine
identity and for sexual stimulation. Dr. Bockting concluded that,
because Long experiences some arousal, he suffers in part from
paraphilia (a sexual attraction to an unusual subject or object)
and transvestic fetishism (sexual arousal from cross-dressing). As
a result, Dr. Bockting stated that Long "does not meet the minimal
requirements that would make him eligible" for hormone therapy or
sex-change surgery. Id. at 1362. The experts thus agreed that
Long is not a transsexual.
In contradistinction to their general agreement on the
diagnosis, the experts flatly disagreed about the appropriate
treatment for Long's condition. Dr. Bockting recommended
psychotherapy for Long's gender-identity disorder combined with
tranquilizers for the depression and anxiety that has resulted from
his inability to wear women's clothes. If the tranquilizers prove
to be ineffective, Dr. Bockting recommended that Long be given
limited opportunities to wear women's clothes to relieve his
anxiety. Dr. Loeffelholz disagreed and noted that Long has not
requested treatment for his anxiety or depression nor has he fully
cooperated with prison psychologists so that the staff could
properly respond to his anxiety or depression, let alone his
gender-identity disorder.
The District Court found that Dr. Loeffelholz had refused to
prescribe tranquilizers "[i]n spite of Dr. Bockting's
recommendation." Id. at 1363. The District Court nonetheless
found that Dr. Loeffelholz's refusal was based on a difference in
professional judgment. Id. at 1363, 1366. As a result, the court
concluded that "[Dr.] Loeffelholz did not act with deliberate
indifference to Long's allegedly serious medical need" and that the
other defendants "were justified in relying on the opinions of
medical staff." Id.
II.
Long argues, among other things, that the District Court erred
when it held that his gender-identity disorder does not constitute
a serious medical need and that the defendants were not
deliberately indifferent to his gender-identity disorder.(2)
Furthermore, Long argues that both the District Court's findings of
fact and its conclusions of law are subject to de novo review "in
light of the societal values underlying the relevant legal
concepts." Appellant's Brief at 2 (citing Falls v. Nesbitt, 966
F.2d 375, 377 (8th Cir. 1992)). We first address the standard of
review.
A.
In Nesbitt, we stated that "[m]ixed questions of law and fact
that require the consideration of legal concepts and involve the
exercise of judgment about the values underlying legal principles
are reviewable de novo." Id. While we believe that the term
"mixed question of law and fact" is confusing and best discarded,
Nesbitt cannot be read to permit the de novo review of the factual
findings of a district court. First, in Nesbitt, the "operative
facts" were "not in dispute." Id. at 376. Second, we began our
discussion of the standard of review by stating that "[t]he trial
judge's findings of fact will not be set aside unless they are
found to be `clearly erroneous.'" Id. at 377 (quoting Fed. R. Civ.
P. 52(a)). The language cited by Long thus stands for the
unremarkable proposition that a legal conclusion drawn from
established facts is subject to de novo review. Despite Long's
invitation, we decline to subject the District Court's findings of
fact in this case to de novo review. As usual, we review the
factual findings of the District Court for clear error and its
legal conclusions de novo. See, e.g., Little Rock School Dist. v.
Pulaski County Special School Dist., #1, Nos. 95-1481 & 95-1482,
slip op. at 8 (8th Cir. May 15, 1996); Williams v. Carter, 76 F.3d
199, 200 (8th Cir. 1996) (per curiam); see also Ornelas v. United
States, No. 95-5257, 1996 WL 276414 at *6 (U.S. May 28, 1996)
(historical facts reviewed "only for clear error" but legal
conclusions such as "reasonable suspicion" and "probable cause"
reviewed de novo). After reviewing the trial transcript and the
documentary evidence, we conclude that the relevant factual
findings of the District Court, as outlined above, are not clearly
erroneous.
B.
Turning to the merits of Long's legal arguments, we conclude
that he failed to prove that the prison officials acted with
deliberate indifference. Deliberate indifference to the serious
medical needs of a prisoner constitutes cruel and unusual
punishment, Estelle v. Gamble,
429 U.S. 97, 102-03
(1976), and the
Constitution prohibits state governments from inflicting such
punishments, Louisiana ex rel. Francis v. Resweber,
329 U.S. 459,
463
(1947) (stating that Due Process Clause of Fourteenth Amendment
incorporates Eighth Amendment's guarantee against cruel and unusual
punishment). We assume without deciding that Long's gender-
identity disorder constitutes a serious medical need for the
purposes of this case.(3)
"A prison official exhibits deliberate indifference when the
official actually `knows of and disregards' a prisoner's serious
medical needs." Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)
(quoting Farmer v. Brennan, 114 S. Ct. 1970, 1977, 1979 (1994)).
Thus, the failure to treat a medical condition does not constitute
punishment within the meaning of the Eighth Amendment unless prison
officials knew that the condition created an excessive risk to the
inmate's health and then failed to act on that knowledge.
Moreover, nothing in the Eighth Amendment prevents prison doctors
from exercising their independent medical judgment. White v.
Farrier, 849 F.2d 322, 327 (8th Cir. 1988). Prisoners do not have
a constitutional right to any particular type of treatment. See
id. at 327-28. Prison officials do not violate the Eighth
Amendment when, in the exercise of their professional judgment,
they refuse to implement a prisoner's requested course of
treatment. Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994);
Taylor v. Turner, 884 F.2d 1088, 1090 (8th Cir. 1989).
The record indicates that Dr. Loeffelholz and other members of
the prison medical staff were aware of Long's psychological
problems. The record, however, does not show any deliberate
indifference on the part of the prison officials. Long's expert in
this case, Dr. Bockting, recommended an initial course of treatment
that consisted of psychotherapy and tranquilizers. Dr. Loeffelholz
did not reject psychotherapy, only the use of tranquilizers. In
fact, the record is full of evidence of the attempts of the prison
medical staff to evaluate Long's psychological problems and Long's
refusal to cooperate. In these circumstances, Long has failed to
prove that Dr. Loeffelholz(4) was deliberately indifferent to Long's
gender-identity disorder, the only serious medical need alleged in
this case.(5)
To the extent that Long's claim is based on the prison
officials' failure to provide tranquilizers, it fails because it is
merely a dispute over the course of treatment. The prison
officials' decision not to treat Long with tranquilizers is "a
classic example of a matter for medical judgment" that does not
rise to the level of cruel and unusual punishment. See Gamble,
429
U.S. at 107
. To the extent that Long's claim is based on the
prison officials' failure to provide psychotherapy, it fails
because Long consistently has refused psychological help. It is
perhaps possible that Long would benefit from some form of therapy.
Long, however, has resisted the attempts of Iowa prison officials
to provide psychological evaluation, treatment, and therapy over
the past twenty years. Even Dr. Bockting noted that "Long's
profile may be `highly resistant to psychological treatment.'"
Long, 877 F. Supp. at 1362. We reject Long's contention that the
Eighth Amendment requires the Iowa Department of Corrections to
provide Long with a "sensitive" psychotherapist trained in gender-
identity issues. Appellant's Brief at 14, 15. The record shows
that the ISP medical staff is competent to diagnose inmates'
medical problems and to order treatment or further evaluation by
other medical professionals.(6)
The District Court correctly stated that "[i]n essence, Long
demands the privilege of cross dressing so that he can exist in the
prison on his own terms, rather than in conformity with prison
regulations." Long, 877 F. Supp. at 1366. Having no apparent
interest in overcoming his gender-identity disorder, Long has
frustrated the attempts of prison doctors to treat that disorder by
his consistent refusal of psychological evaluation over the past
twenty years. In these circumstances, the District Court
unquestionably was correct when it held that Long failed to prove
that the defendant prison officials have been deliberately
indifferent to his gender-identity disorder.
III.
For the reasons stated above, the judgment of the District
Court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable Celeste F. Bremer, United States Magistrate
Judge for the Southern District of Iowa. The case was tried before
Magistrate Judge Bremer by consent of the parties pursuant to 28
U.S.C. SS636(c) (1994).
(2)
Because we agree with the District Court's conclusion that the
prison officials did not act with deliberate indifference to Long's
gender-identity disorder, we need not and do not address his
arguments regarding the prison officials' entitlement to qualified
immunity.
(3)
A psychological disorder may constitute a serious medical
need. White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988). We
have held that transsexualism is a serious medical need, id.,
though that holding may be in doubt in light of Farmer v. Brennan,
114 S. Ct. 1970 (1994), and subsequent cases. It is undisputed in
this case, however, that Long is not a transsexual, and thus White
does not control the resolution of whether Long's gender-identity
disorder is a serious medical need.
(4)
We also agree with the District Court's conclusion, Long, 877
F. Supp. at 1366, that the other defendants were entitled to rely
on the opinions of the medical staff when refusing Long's requests
to cross-dress. See Heidemann v. Rother, Nos. 94-4112 & 95-1136,
slip op. at 11-12 (8th Cir. May 23, 1996).
(5)
In his Reply Brief, Long alleges that his anxiety and
depression constitute independent serious medical needs and that
cross-dressing is the appropriate treatment for these conditions.
Reply Brief at 7. This argument is not properly before us, having
been raised for the first time in Long's Reply Brief. See United
States v. Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995), cert.
denied, 116 S. Ct. 1449 (1996). The only serious psychological
need referred to in Long's amended complaint, and the alleged
serious medical need on which the case was tried, is his gender-
identity disorder.
(6)
ISP employs three full-time psychologists. The psychologists
may refer a prisoner to the prison system's 46-bed licensed
psychiatric hospital or to outside facilities and specialists for
further evaluation and treatment.