Justice Delayed is Justice Denied

See Kosilek vs Spencer III USCA 1st Cct No. 12-2194

THOMPSON, Circuit Judge. Twenty years after prison inmate Michelle Kosilek first requested treatment for her severe gender identity disorder, the district court issued an order requiring the defendant, Luis S. Spencer, Commissioner of the Massachusetts Department of Correction (the "DOC"),1 to provide Kosilek with sex reassignment surgery. The court found that the DOC's failure to provide the surgery — which was said by a group of qualified doctors to be medically necessary to treat Kosilek's condition — violated Kosilek's Eighth Amendment rights. The DOC appeals the district court's order. Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court.

... In 1992, Kosilek filed a pro se complaint against the DOC in the United States District Court for the District of Massachusetts.4 See Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002) ("Kosilek I"). Kosilek alleged the DOC was denying her adequate medical care in violation of the Eighth Amendment. Kosilek sought damages and an injunction ordering that she be provided with sex reassignment surgery....

Meanwhile, in December 2000, having not yet received the relief she was seeking, Kosilek filed this case — a second pro se lawsuit against the DOC and some of its medical providers. See Kosilek v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012) ("Kosilek II"). Again the gravamen of Kosilek's complaint was that the DOC was denying her adequate medical care in violation of the Eighth Amendment by not providing her with sex reassignment surgery. This case also went to Judge Wolf.
In February 2002, Kosilek's first lawsuit, Kosilek I, finally proceeded to a non-jury trial...

On August 28, 2002, Judge Wolf issued his decision. See Kosilek I, 221 F. Supp. 2d at 156....

... the court found Kosilek had fallen short of establishing an Eighth Amendment violation because the subjective component of deliberate indifference had not been satisfied. Maloney, the court concluded, knew many facts from which he could have inferred Kosilek would suffer serious harm if her gender identity disorder was not treated, but he did not actually draw that required inference. Instead Judge Wolf found Maloney's refusal to allow Kosilek treatment was "rooted in sincere security concerns, and in a fear of public and political criticism as well."
The end result: because there was no Eighth Amendment violation, the court did not order the DOC to do anything.


Nonetheless, Judge Wolf expected it would do something. He wrote: "This court's decision puts Maloney on notice that Kosilek has a serious medical need which is not being properly treated. Therefore, he has a duty to respond reasonably to it. The court expects that he will."

In 2003, Dr. Seil made the same recommendation, indicating that Kosilek should be allowed to meet with a specialist after a year on hormones. Then in February 2005, the Fenway Center doctors indicated after evaluating Kosilek that she should be allowed to have surgery. Dennehy herself was Deputy Commissioner during Kosilek I and was involved in the decisions made in connection with that case. And right when she started as Commissioner, Dennehy slowed things down. She took the unusual step in assuming an active role in a de novo blanket reassessment of the treatment of those inmates suffering from gender identity disorder, including Kosilek, despite the fact that the DOC's contract with UMass provided that the UMass medical professionals would make the decisions about the medical care for inmates with this disorder and the Commissioner would only step in at the end to assess any security concerns.

The DOC explains away this delay by claiming that for a long time it did not understand that UMass recommended surgery for Kosilek, but the district court did not buy it.< br/>...
Thus, in the end, there was evidence that the DOC knew that Kosilek's medical providers were recommending surgery, and in response, the DOC dallied and disregarded. This behavior is significant, as in order to establish a subjective intent, "it is enough for the prisoner to show a wanton disregard sufficiently evidenced 'by denial, delay, or interference with prescribed health care.'" Battista, 645 F.3d at 453 (quoting DesRosiers, 949 F.2d at 19); see also Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005)(A "deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians.").
...
Aside from the DOC's purported security concerns, the court pointed to other evidence which it thought suggested the DOC's denial of surgery was not prompted by valid penological concerns but rather a deliberate indifference to Kosilek's medical needs. For instance, there was evidence that the DOC did not leave things up to chance when it sought an opinion about whether an operation for Kosilek was even warranted. The DOC knew before it retained Osborne that she was assisting other departments of corrections in defending litigation filed by transgender prisoners.
In fact, Hughes specifically noted that Osborne would be more sympathetic to the DOC's concerns and that she did not believe that sex reassignment surgery was appropriate in the corrections setting. It was not a stretch for the court to disbelieve Dennehy's testimony that Osborne's very predictable opposition to providing Kosilek with surgery did not play a role in her selection.

The public disapproval of Kosilek's quest was another piece of the puzzle. Even though Dennehy and Clarke denied being motivated by avoidance of public controversy, the district court found this testimony lacking in credibility and concluded that Dennehy and Clarke were keenly aware of and in fact motivated by the outcry. Evidence supporting the court's finding included Dennehy's press appearance in the news piece featuring her senator acquaintance who opposed the surgery; Dennehy's testimony that she was aware that some politicians were against Kosilek being provided with surgery and that she was generally aware of the negative news coverage; and Clarke's admission that he received the two letters from the seventeen unhappy state senators and twenty-five unhappy representatives.
...
It is enough that the district court had a reasonable basis for its perception that the DOC had shown a pattern of "delays, poor explanations, missteps, changes in position and rigidities." Id. And as we chronicled above, there was ample evidentiary support for this finding. Finding no clear error, we defer to the district court's assessment of Dennehy's and Clarke's testimony and the other evidence on the issue.

TLDR; - it's been 20 years with no end in sight because of deliberate delay due to personal, political and electoral unpopularity. Every stone has deliberately been left unturned.