United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 1998 Decided December 18, 1998
No. 98-5087
Dee Farmer,
Appellee
v.
Kenneth Moritsugu,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 92cv01690)
Stacy M. Ludwig, Assistant U.S. Attorney, argued the
cause for appellant. With her on the briefs were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Laura K. McNally argued the cause for appellee. With
her on the brief was James J. Sandman.
Before: Edwards, Chief Judge, Williams and Randolph,
Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: This case presents the question whether the
Medical Director of the Bureau of Prisons ("BOP") can be
held personally liable under the Eighth Amendment for the
alleged failure to treat a transsexual inmate. Appellee Dee
Deidre Farmer ("Farmer"), a transsexual who has been incar-
cerated in various BOP facilities since 1986, alleges that
appellant Kenneth Moritsugu ("Moritsugu"), the BOP's Medi-
cal Director, exhibited deliberate indifference to her serious
medical needs by failing to ensure that she received treat-
ment for her condition. Moritsugu asserts qualified immuni-
ty, arguing that he adhered at all times to the BOP's con-
cededly constitutional medical policy, which invests him with
only a very limited role in decisions concerning the diagnosis
and care of individual patients in local BOP institutions. We
agree that Moritsugu was not the person to whom Farmer's
treatment requests were appropriately addressed. We also
find that Farmer failed to demonstrate a specific need for
treatment, and, therefore, that Moritsugu's response to
Farmer's demands could not have constituted deliberate indif-
ference to her medical needs. Accordingly, we reverse the
District Court's denial of qualified immunity.
I. Background
A.Farmer's Efforts to Obtain Treatment
Transsexualism is a gender identity disorder, the sufferers
of which believe that they are "cruelly imprisoned within a
body incompatible with their real gender identity." The
Merck Manual of Medical Information 418 (1997). The
disorder is commonly accompanied by a desire to change
one's anatomic sexual features to conform physically with
one's perception of self. To relieve this gender discomfort,
transsexuals may pursue some combination of hormone thera-
py, surgery, and psychological counseling. They may also
choose to live in their preferred gender role by dressing,
naming, and conducting themselves in conformity with that
gender. See id. at 418-19.
Farmer is a pre-operative male-to-female transsexual, i.e.,
she identifies herself as a woman although she is biologically
male. For several years prior to her incarceration, Farmer
lived as a woman in her dress and conduct. She also received
hormone therapy and silicone breast injections. Farmer has
never undergone sex re-assignment surgery. However, be-
fore her imprisonment, she had an unsuccessful "black mar-
ket" operation to remove her testicles, and, while in prison,
she attempted to perform self-castration.
Since at least 1991, Farmer has actively sought treatment
for her transsexualism. She has lodged administrative com-
plaints within the institutions in which she has been incarcer-
ated. She has also initiated multiple lawsuits claiming viola-
tions of her constitutional rights arising from her conditions
of imprisonment and lack of medical treatment. And, most
relevant to the instant case, she has written numerous letters
to BOP officials, including Moritsugu, to inform them that she
desired, but was not receiving, treatment for her transsexual-
ism. See Letters from Farmer to Prison Officials, reprinted
in Joint Appendix ("J.A.") 66-80. In these letters, Farmer
has claimed that, because her condition has worsened during
the course of her confinement, she is entitled to some form of
treatment. Farmer claims that her pleas for assistance
largely have gone unanswered; on this score, she points out
that she has received only intermittent counseling from the
BOP during her incarceration.
The BOP's general health care mission is to provide essen-
tial medical care, defined as care that is either medically
mandatory or presently medically necessary in the clinical
judgment of health care professionals. See Federal Bureau
of Prisons, U.S. Dep't of Justice, Program Statement, No.
6000.04 (Dec. 15, 1994) ("Health Services Manual"), Ch. 1,
s 1, reprinted in J.A. 61. The term "medically mandatory"
applies to "cases in which urgent intervention is required."
Id. The term "presently medically necessary" describes
treatment "without which an inmate could not be maintained
without significant risk of either further serious deterioration
of his/her condition or significant reduction of the chance of
possible repair after release, or without significant pain or
discomfort." Id. In addition to this broad mission state-
ment, the BOP's medical policy includes a provision specifical-
ly applicable to the treatment of transsexualism, which de-
clares:
It is the policy of the [BOP] to maintain a transsexual
inmate at the level of change existing upon admission.
Should the Clinical Director determine that either pro-
gressive or regressive treatment changes are indicated,
the Medical Director must approve these prior to imple-
mentation. The use of hormones to maintain secondary
sexual characteristics may be continued at approximately
the same levels as prior to incarceration (with appropri-
ate documentation from community physicians/hospitals)
and with the Medical Director's approval.
Health Services Manual, Ch. 5, s 14, reprinted in J.A. 64.
The present case centers on the course of predominantly
unanswered correspondence by which Farmer sought Mori-
tsugu's intervention in her treatment program. Moritsugu,
for his part, acknowledges receiving one letter from Farmer.
In that letter, dated July 30, 1992, Farmer apparently re-
quested some combination of treatment--hormones, castra-
tion, and/or psychotherapy--for her transsexualism. That
letter, in turn, prompted Moritsugu's response of August 11,
1992. See Letter from Moritsugu to Farmer (Aug. 11, 1992),
reprinted in J.A. 52-53.
In his letter to Farmer, Moritsugu recited the BOP's
general medical policy, as described above. He then proceed-
ed to address briefly each potential form of treatment for
transsexualism. As to hormones, Moritsugu stated that
Farmer was not on hormones when she arrived in the federal
prison system, and that he had not received a request for
such treatment from the medical personnel of the facility in
which she was incarcerated. As to castration, Moritsugu
again emphasized that he had not received a recommendation
for such treatment from the relevant medical personnel, and
added that he would only consider authorizing castration if it
was clinically necessary, rather than simply "a cosmetic pro-
cedure or a procedure to further transsexual change." J.A.
52. Finally, as to psychotherapy, Moritsugu observed that
Farmer had received counseling, but that her transsexualism
was a "general emotional state," which did "not present a
specific mental health problem that mental health personnel
[could] isolate for treatment." Id. at 52-53. He concluded by
stating that mental health personnel were available to assist
Farmer if she had "specific needs." Id. at 53.
Farmer claims to have written Moritsugu on four subse-
quent occasions, requesting that he reconsider his decision.
Moritsugu, however, does not acknowledge receiving, and did
not respond to, any of these alleged letters.
B.Farmer's Lawsuit
On May 15, 1996, Farmer filed the instant lawsuit in
District Court, naming Kathleen Hawk, in her official capaci-
ty as Director of the BOP, and Moritsugu, in both his official
and individual capacities. Farmer's complaint sought dam-
ages against Moritsugu pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), alleging, inter alia, that Moritsugu violated her
Eighth Amendment rights by failing "to promulgate any
policy which would have required the BOP medical staff to
provide [her] with treatment for transsexualism," and by
failing to "direct the BOP medical staff to provide [her] with
treatment for transsexualism." Second Amended Complaint
pp 53-54, reprinted in J.A. 37.
Defendants moved to dismiss or, in the alternative, for
summary judgment, arguing, inter alia, that Moritsugu was
entitled to qualified immunity on the claim for damages
asserted against him in his individual capacity. The District
Court granted in part and denied in part defendants' motion.
See Farmer v. Hawk, 991 F. Supp. 19, 28 (D.D.C. 1998). As
relevant to the present action, the trial court first determined
that, at the time of Moritsugu's letter to Farmer, it was
clearly established that transsexualism was a serious medical
condition entitling Farmer to some form of treatment. See
id. at 25-27. With regard to Moritsugu's alleged failure to
promulgate a new policy for treatment of transsexuals, the
court found that the BOP's current policy is constitutional on
its face, and, therefore, that Moritsugu's failure to issue a new
policy could not have been deliberately indifferent. See id. at
27. However, with regard to Moritsugu's alleged failure to
enforce adequately the existing policy to secure treatment for
Farmer, the trial court concluded that Moritsugu's response
to Farmer's requests "could very possibly have constituted
deliberate indifference," because his letter "acknowledge[d]
and sanction[ed] the withholding of any treatment from
Farmer." Id. at 28. Thus, the court held that Moritsugu
was not entitled to immunity on this claim. See id. This
appeal, which concerns solely the question of Moritsugu's
liability in his individual capacity, followed.
II. Analysis
A.Qualified Immunity Principles
It is well-established that qualified immunity shields gov-
ernment officials from liability for civil damages "insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Where an official's conduct is objectively reasonable in light
of existing law, that official will enjoy protection from liability.
See Anderson v. Creighton, 483 U.S. 635, 639 (1987). Where,
however, "an official could be expected to know that certain
conduct would violate statutory or constitutional rights," that
official may be vulnerable to suit by one who suffers injury
resulting therefrom. Harlow, 457 U.S. at 819. In short,
"[a]n official is ... entitled to summary judgment [on quali-
fied immunity grounds] unless '[t]he contours of the right
[were] sufficiently clear that a reasonable official would [have]
underst[ood] that what he [was] doing violate[d] that right.' "
Harris v. District of Columbia, 932 F.2d 10, 13 (D.C. Cir.
1991) (quoting Anderson, 483 U.S. at 640).
By "provid[ing] government officials with the ability rea-
sonably to anticipate when their conduct may give rise to
liability for damages," Anderson, 483 U.S. at 646 (citation and
internal quotation marks omitted), the doctrine of qualified
immunity strikes a balance between compensating those in-
jured by official conduct and protecting the Government's
basic ability to function. See Harlow, 457 U.S. at 813-14. In
other words, qualified immunity is designed to mitigate the
social costs of exposing government officials to personal liabil-
ity--costs such as "distraction of officials from their govern-
mental duties, inhibition of discretionary action, and deter-
rence of able people from public service." Id. at 816; see also
Harris, 932 F.2d at 13. To this end, qualified immunity
provides not simply a defense to liability, but also "an entitle-
ment not to stand trial or face the other burdens of litigation,
conditioned on the resolution of the essentially legal question
whether the conduct of which the plaintiff complains violated
clearly established law." Mitchell v. Forsyth, 472 U.S. 511,
526 (1985).
B.Appellate Jurisdiction
The present matter comes to us on interlocutory appeal
from the District Court's denial of Moritsugu's motion for
summary judgment on the basis of qualified immunity. See
Farmer v. Hawk, 991 F. Supp. at 28. We begin our analysis,
therefore, by considering whether we have jurisdiction to
decide this appeal.
Pursuant to 28 U.S.C. s 1291, we have jurisdiction over
appeals from "final decisions of the district courts." A denial
of summary judgment is ordinarily not "final," because it
simply sends a case to trial. However, under a settled
application of the "collateral order doctrine," see Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), an
appeal from a denial of summary judgment on the ground of
qualified immunity may be susceptible to immediate appeal.
See Mitchell, 472 U.S. at 530.
Because immunity from the burdens of litigation "is effec-
tively lost if a case is erroneously permitted to go to trial," id.
at 526, the policies underlying qualified immunity favor reso-
lution of immunity claims prior to full discovery, and, there-
fore, support immediate appeal of an order denying immuni-
ty. See id. at 526-30. Collateral order principles do not,
however, permit an immediate appeal merely because a de-
fendant asserted, but was denied, qualified immunity. See
Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Rather, the
Supreme Court has distinguished between appeals raising
"abstract" legal issues--i.e., "whether the facts alleged ...
support a claim of violation of clearly established law," Mitch-
ell, 472 U.S. at 528 n.9--and appeals challenging evidentiary
sufficiency--i.e., whether the summary judgment record rais-
es genuine issues of fact for trial. See Johnson v. Jones, 515
U.S. 304, 313 (1995). As we see it, this precedent draws a
critical line between appeals of the "I cannot, as a matter of
law, be held liable" variety and appeals of the "I did not, as a
matter of fact, do it" variety. The former is permitted,
notwithstanding the absence of a final judgment in the case,
see Mitchell, 472 U.S. at 530; the latter, however, is not. See
Johnson, 515 U.S. at 313.
We find that the instant appeal falls on the permissible side
of this line. The District Court found that material issues of
fact remain in dispute, including the question of whether
Farmer actually received any treatment for her transsexual-
ism. See Farmer v. Hawk, 991 F. Supp. at 27, 30. Mori-
tsugu's challenge, however, does not go to this finding. The
crux of Moritsugu's appeal is that, even assuming the facts as
presented by Farmer, he could not have violated her Eighth
Amendment rights, because he adhered to the BOP's consti-
tutional medical policy, which does not charge him with
responsibility for the diagnosis and treatment of individual
patients. See Brief for Appellant at 9. In short, Moritsugu
has effectively conceded the facts as alleged by Farmer,
contesting instead whether those facts could support a conclu-
sion that he violated Farmer's constitutional rights. This
case, therefore, "concern[s], not which facts the parties might
be able to prove, but, rather, whether or not certain given
facts show[ ] a violation of 'clearly established' law." John-
son, 515 U.S. at 311 (citing Mitchell, 472 U.S. at 528).
Accordingly, we have jurisdiction to hear and decide this
appeal.
C.Moritsugu's Qualified Immunity Claim
We turn now to the merits of Moritsugu's qualified immuni-
ty claim. We review the District Court's denial of summary
judgment de novo, applying the same legal standard that
governed the District Court's determination. See National
Wildlife Fed'n v. Browner, 127 F.3d 1126, 1128 (D.C. Cir.
1997).
Moritsugu is protected by qualified immunity unless Farm-
er's allegations could sustain a finding that his conduct violat-
ed clearly established law. See Harlow, 457 U.S. at 818. The
"clearly established law" upon which Farmer's contentions
rest is the Eighth Amendment's proscription against "deliber-
ate indifference to serious medical needs of prisoners." Es-
telle v. Gamble, 429 U.S. 97, 104 (1976). A prison official who
"knows of and disregards an excessive risk to inmate health
or safety" is deliberately indifferent for these purposes.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). The only
question presently before us, then, is whether, viewing the
record in the light most favorable to Farmer, Moritsugu's
conduct could have constituted deliberate indifference to
Farmer's medical needs.
In Farmer's view, Moritsugu was deliberately indifferent,
because, in the face of her repeated requests for some type of
treatment, he responded with only a single letter explaining
the BOP's policy and finding that she had not established an
entitlement to treatment thereunder. The bottom line,
Farmer contends, is that Moritsugu was aware of, yet or-
dered no treatment for, her medical condition. See Brief of
Appellee at 11. The District Court agreed, finding that
Moritsugu effectively "sanction[ed]" the withholding of treat-
ment from Farmer. Farmer v. Hawk, 991 F. Supp. at 28.
We find, however, that Farmer's claims imply an obligation
falling well outside the scope of Moritsugu's role as Medical
Director, and, moreover, that Moritsugu's response to Farm-
er's requests comported with constitutional BOP medical
policy. Thus, we conclude that Moritsugu's conduct met the
standard of "objective legal reasonableness" required to sup-
port qualified immunity. Harlow, 457 U.S. at 819.
There is no dispute here that the BOP's medical policy
specifically speaks to the treatment of transsexualism. See
Health Services Manual, Ch. 5, s 14, reprinted in J.A. 64.
Moreover, although Farmer originally challenged both the
BOP's medical policy and its application to her, the District
Court found that the policy is constitutional on its face. See
Farmer v. Hawk, 991 F. Supp. at 27. Farmer has not
contested this finding on appeal. We deem it unnecessary to
reach the question of whether or not transsexualism is a
serious medical condition, therefore, because even assuming
that it is, adherence to the policy would, a fortiori, be
constitutional.
The parties agree, moreover, that, pursuant to this con-
cededly constitutional policy, only three treatment options
were potentially available in this case: hormone therapy,
castration, and psychotherapy. Throughout this litigation,
Farmer has recognized that she is not entitled to any particu-
lar treatment of her choosing. See Brief for Appellee at 4.
At oral argument, counsel also conceded that hormone thera-
py and castration are not realistically at issue in this case, i.e.,
Farmer cannot pin a claim of deliberate indifference on
Moritsugu's failure to order these treatments. We agree, and
find nothing in the record to suggest otherwise.
The only remaining question, then, is whether Moritsugu
was deliberately indifferent to Farmer's need for psychother-
apy. We find that he was not, as Farmer has failed to
establish any "need" for psychotherapy of which Moritsugu
was aware and to which he was indifferent. Farmer appar-
ently relies on the simple fact of her diagnosis to support her
need for counseling. Yet, this is plainly inadequate: merely
because someone is a transsexual, it does not inexorably
follow that he or she needs psychotherapy. Even the fact
that Farmer received some counseling in the past does not
necessarily demonstrate her present need for that treatment.
Indeed, it appears undisputed that, under the established
BOP policy, Farmer had no guarantee of psychotherapy for
transsexualism absent a demonstrated need.
Quite apart from whether Farmer had a need for psycho-
therapy, the most important point in this case is that
Moritsugu is not the person within the BOP who determines
whether psychotherapy is required in a given case. As
Medical Director, overseeing operations in facilities nation-
wide from his office in Washington, D.C. , Moritsugu does not
diagnose individual patients; nor does he prescribe treat-
ments for particular patients, except insofar as he may be
called upon to approve the recommendation of a treating
physician. Such determinations are made at the local level,
i.e., within individual BOP institutions. In short, Farmer's
pleas to Moritsugu were plainly misguided. The appropriate
recourse was, first and foremost, through the local medical
personnel who were responsible for Farmer's treatment deci-
sions. If Farmer was dissatisfied with local medical treat-
ment, she had recourse to grievance and appeal procedures
pursuant to which she could contest any failures in medical
care. There is no claim here that these grievance procedures
were legally inadequate.
Obviously, Farmer preferred to seek relief from the head of
the operation, apparently on the mistaken assumption that
the boss can cure all ills. It is unimaginable, however, that
Moritsugu should be available to intervene in established
processes on behalf of every BOP inmate who happens to be
dissatisfied with his or her medical treatment. This is partic-
ularly true where, as here, the requests were completely
unsupported by treatment records or recommendations from
local medical personnel establishing a need for treatment. It
is clear that Moritsugu's role as Medical Director neither
required nor countenanced his involvement in Farmer's case.
On its face, Moritsugu's August 11 letter simply confirms
the obvious. To be sure, Moritsugu did, perhaps unnecessari-
ly, comment directly upon issues pertaining to Farmer's
medical care. Implicit in his letter, however, was the strong
message that Farmer's requests were misdirected. He stat-
ed that he had not received requests from local medical
personnel to treat Farmer with hormones or castration, but
that mental health personnel were available to assist her
should she have specific needs for psychotherapy. See J.A.
52-53. The bottom line is apparent: as far as Moritsugu
could tell, Farmer had not demonstrated any need for treat-
ment, and it was not his role to ascertain this need. Under
these circumstances, the letter reflected little more than
Moritsugu's adherence to the BOP's medical policy, pursuant
to which he was not directly involved in decisions concerning
Farmer's care. Even Farmer's counsel, when questioned at
oral argument, acknowledged that her client could not win an
Eighth Amendment claim on the basis of Moritsugu's letter
alone.
Thus, we find that Moritsugu is entitled to qualified immu-
nity, for there is nothing else in the record on which to pin
deliberate indifference. Farmer emphasizes that her claims
rest not on any isolated occurrence, such as Moritsugu's
August 11 letter, but rather on Moritsugu's persistent failure,
in the face of her ongoing requests, to ensure that she receive
any treatment. However, the mere fact that Farmer wrote
to Moritsugu on multiple occasions does not change the
outcome, because Moritsugu was never the person to whom
these matters should have been addressed in the first place.
Farmer's claims, unsupported by evidence of a medical need
for psychotherapy, did not trigger any obligation on the part
of Moritsugu to conduct an independent investigation into her
medical condition and treatment. Farmer's implications in
this regard, therefore, fail to appreciate Moritsugu's limited
role, under the BOP's constitutional medical policy, in treat-
ment decisions properly made by physicians in local institu-
tions. In light of these factors, we hold that Moritsugu's
conduct was objectively reasonable.
We add, as a final note, that exposing Moritsugu to person-
al liability in these circumstances would be totally at odds
with the policies underlying the doctrine of qualified immuni-
ty. See Harlow, 457 U.S. at 806, 814. If Moritsugu is liable
in a case such as this, he is, in effect, liable for all alleged
mistakes in the individual diagnoses of every inmate in the
BOP system, simply by virtue of an inmate's complaint. Such
an outcome is untenable. This is not to say that we can
envision no circumstances under which Moritsugu could have
been deliberately indifferent to an inmate's medical needs.
However, we simply cannot imagine how the Medical Director
in Washington, D.C. could be expected to formulate treatment
regimes for prisoners throughout the system on the basis of
essentially undocumented complaints charging inadequate
care. And, if the weight of such an assignment were not
problematic enough, the risk of personal liability would make
it virtually impossible for the Government to fill positions
such as Moritsugu's, as few qualified doctors would be willing
to assume this responsibility with the accompanying risks of
liability. The Government cannot be expected to operate in
this way, and high government officials cannot be expected to
assume this type of liability.
III. Conclusion
For all of the foregoing reasons, we find that Moritsugu is
entitled to qualified immunity on Farmer's Eighth Amend-
ment claims against him in his individual capacity. Accord-
ingly, we reverse the District Court's denial of summary
judgment in his favor.
So ordered.