BOUDIN, Circuit Judge.
In 1983, in state court in Massachusetts, Sandy Battista (born "David Megarry") was convicted of the rape of a child, robbery, and kidnapping. After serving that sentence, Battista was involuntarily committed in 2003 in a civil proceeding, Mass. Gen. Laws ch. 123A, § 14 (2008), to the Massachusetts Treatment Center for Sexually Dangerous Persons ("Treatment Center"). Such persons are held civilly without limit in time until adjudged safe for release. Id. §§ 9, 14.
The Treatment Center, for which the Massachusetts Department of Correction ("the Department") is responsible, Mass. Gen. Laws ch. 123A, § 2, is an all-male facility housing three groups: criminals participating in treatment programs, civilly committed residents, and those awaiting adjudication as "sexually dangerous persons." Massachusetts law requires that civil detainees like Battista be separated from criminal ones. Durfee v. Maloney, Nos. CIV. A. 98-2523B, CIV. A. 98-3082B, 2001 WL 810385, at *15 (Mass.Super.Ct. July 16, 2001).
Battista is anatomically male but suffers from "gender identity disorder" ("GID"), a psychological condition involving a strong identification with the other gender. GID is a disorder recognized in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). The diagnostic criteria include not only "cross-gender identification" but also "clinically significant distress or impairment in social, occupational, or other important areas of functioning." Id. at 537-38.
In 1996, Battista changed her name to Sandy and began to seek treatment from the Department, including administration of female hormones and access to female garb. Her early demands were met with skepticism and resistance.
Battista filed her complaint in the present suit in July 2005 and in October 2005 sought to castrate herself with a razor blade. The suit, against various officials of the Department, charged deliberate indifference to her medical needs in violation of the Eighth and Fourteenth Amendments and 42 U.S.C. § 1983 (2006), as well as state law, including Mass. Gen. Laws ch. 12, §§ 11H-11I. In particular, Battista sought an injunction requiring that hormone therapy and female garb and accessories be provided to her.
In and around 2005 and 2006, the Department fenced with its own healthcare provider, the University of Massachusetts Correctional Health Program, which offered strong support for the GID diagnosis, asserted that harm could easily occur without adequate treatment, and recommended hormone therapy as medically
Battista's first request to the district court for a preliminary injunction was denied in March 2006, with a finding that the defendants had not at this stage been shown to be deliberately indifferent to her medical needs. Battista v. Dennehy, No. 05-11456-DPW, 2006 WL 1581528, at *9-10, *12 (D.Mass. Mar. 22, 2006). After the further medical assessments continued to recommend hormone therapy, the Department stated that it would not implement treatments until security concerns were further evaluated. This proved to be a drawn-out process.
In August 2008, the first security review by the Department concluded that a feminine appearance would endanger Battista. The core security concern throughout has been that sexual contacts or assaults by other detainees would be made more likely by female clothing and accessories and the enhancement of breasts due to hormone therapy. The report, however, was fairly cursory, comprising only a few paragraphs, and in December 2008 the district court entered a preliminary injunction requiring psychotherapy, access to women's attire and accessories, monthly reports on Battista's condition, and a recommendation on hormone therapy after a six-month review.
In the six-month report, the doctors again prescribed the hormones. A first dose was administered, but then the Department put another indefinite hold on treatment pending a second security review. The September 2009 review again found the safety risk too high. This new report was more substantial although it more or less duplicated an earlier report prepared for an inmate who also had requested and been denied hormone therapy. Its security evaluation is at the core of the Department's substantive objection to hormone therapy for Battista.
Although hormone therapy had been provided for GID to inmates of some male prisons, the September 2009 report included data gathered under the Prison Rape Elimination Act of 2003 ("PREA") § 4, 42 U.S.C. § 15603, to argue that the risk of sexual assault was higher at the Treatment Center as compared to other facilities of the Department, including prisons. The report noted that Treatment Center residents were sex offenders and that the Treatment Center had an open floor plan. It stressed Battista's past infractions and the inability to move her to another facility because of her civil commitment status.
A bench trial took place in June and August 2010. In the course of the trial, Battista offered an evaluation from psychiatrist George Brown. He testified that Battista was eligible and ready for hormonal treatment, that the past treatment for her GID "falls below any reasonable standard of care," and that with a
On August 3, 2010, the court stated that it would enter a modified preliminary injunction order requiring hormone therapy to begin shortly. On August 23, 2010, the district court delivered a detailed oral decision, which recounted the history and made numerous findings in support of its injunction, applying the usual four-part test for preliminary relief, Iantosca v. Step Plan Svcs., Inc., 604 F.3d 24, 29 n. 5 (1st Cir.2010) (likelihood of success, irreparable harm, balance of hardships on the opposing sides, public interest).
The district court's ultimate finding of "deliberate indifference" rests on several different subordinate findings, which can be recast and summarized under two headings: first, that Battista has an established medical need for hormone therapy, may suffer severe harm without it, and (implicitly) that such therapy is feasible despite safety concerns; and second, that the defendants' reliance on their administrative discretion in invoking and dealing with security concerns has been undercut by a collection of pretexts, delays, and misrepresentations.
The focus of this appeal is narrow. The Department concedes that Battista suffers from GID and needs treatment and that hormone therapy has been recommended as medically necessary; but it says that security concerns reasonably underpin its refusal and contests the finding of deliberate indifference. Because the individual defendants are sued only in their official capacity for injunctive relief and no damages are sought, qualified immunity is not an issue nor need the separate roles of individual defendants be sorted out.
Defendants suggest that review is de novo; the plaintiff, that it is essentially for abuse of discretion in the grant of preliminary relief. In truth, the standard of review varies depending on the precise underlying issue in the mosaic of arguments and counter-arguments. Legal issues are open to de novo review, factual findings are reviewed for clear error, and judgment calls by the district judge may get deference depending on the circumstances. Venegas-Hernandez v. Asociacion De Compositores y Editores de Musica Latinoamericana (ACEMLA), 424 F.3d 50, 53 (1st Cir.2005).
The substantive standard for liability is a more complicated story. In the district court, the parties and the judge focused on the Eighth Amendment test used to assess medical care, or the lack of it, for criminal prisoners, namely, whether the defendants were "deliberately indifferent" to the needs of their charge. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This choice of tests was hardly surprising: although protection of civilly committed persons rests on due process concepts rather than the Eighth Amendment, deliberate indifference is the familiar test for medical care.
Because Battista is civilly committed, a different, more plaintiff-friendly standard arguably applies here: whether the defendant failed to exercise a reasonable professional judgment. Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
Both the Farmer and Youngberg tests leave ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources. This is a regular theme in the Eighth Amendment cases, Farmer, 511 U.S. at 844, 114 S.Ct. 1970, and it is equally important under Youngberg. There, while stressing that civilly committed persons are entitled to an extra margin of protection, the Court also stated that there can be more than one reasonable judgment, and that the choice in such cases is for the professional. 457 U.S. at 321, 324-25, 102 S.Ct. 2452.
Finally, while an "intent to punish" is not required even under Farmer, it could certainly be highly significant under Farmer and, a fortiori, under Youngberg. So it is useful to dispose at the outset of plaintiff's claim that Robert Murphy—the superintendent of the Treatment Center—admitted that whether Battista should "be punished for her lack of good judgment by withholding medical care" was "a consideration" when Murphy wrote the security report rejecting hormone therapy.
This overreads Murphy's testimony. That Battista had regularly evaded Treatment Center restrictions and engaged in sexual contacts with other detainees was fully established, and it enhanced the danger to her in the future if her attractiveness to other detainees was increased. So that fact was legitimately a "consideration" that could affect whether hormone treatment could be safely allowed. The term "punish" was not Murphy's own but was inserted into the question itself by Battista's counsel during the deposition:
But the question remains whether the withholding of hormone therapy was "wanton" or outside the bounds of "reasonable professional judgement." Medical "need" in real life is an elastic term: security considerations also matter at prisons or civil counterparts, and administrators have to balance conflicting demands. The known risk of harm is not conclusive: so long as the balancing judgments are within the realm of reason and made in good faith, the officials' actions are not "deliberate indifference," Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970, or beyond "reasonable professional" limits, Youngberg, 457 U.S. at 321, 324-25, 102 S.Ct. 2452.
Here, despite much early resistance, Brugliera v. Comm'r of Mass. Dep't of Corr., No. 07-40323-JLT (D.Mass. Dec. 18, 2009); Kosilek v. Maloney, 221 F.Supp.2d 156, 159-60 (D.Mass.2002), hormone therapy for GID is now provided in some cases in Massachusetts prisons. The defendants point to this to establish their good faith; Battista, to show that providing her the therapy would be consistent with security needs. Both positions are overstated. Hormone therapy has not been welcomed by the Department, but both the Treatment Center's internal environment and Battista herself arguably presented added risks.
The Treatment Center is the one facility where Battista can be housed as a civil inmate and, while the Department could establish a branch elsewhere, Mass. Gen. Laws ch. 123A, § 2, this would pose administrative difficulties and be isolating for Battista. The civil-side residents of the Treatment Center contain a disproportionate number of male sex offenders who might threaten one who presents herself as female. And Battista has a record of infractions and sexual contacts and risk-taking that colorably place her at greater risk from invited or uninvited sexual contact.
Nor is Battista's willingness to take risks for herself decisive. The defendants have an obligation to take reasonable measures to protect inmates, Farmer, 511 U.S. at 833, 114 S.Ct. 1970 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)), and Battista is quite likely to sue if preventable harm occurs. Battista will bear some of the risk of the hormone therapy, but not all of it. And, while she could be kept in protective custody available at the Treatment Center, this custody—as currently structured—involves confinement for most of the day and other disadvantages that Battista is unwilling to tolerate.
The legal labels applied to facts are reviewed on appeal more closely than a district court fact-finding, but often with some deference to the district judge. United States v. Quinones-Medina, 553 F.3d 19, 22 (1st Cir.2009). Yet this would be a much harder case if defendants had proffered a persuasive and untainted professional judgment that—while hormone therapy would help Battista—the dangers, security costs and other impediments made it infeasible. For the problem is not
Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir.1993).
Yet in this instance, as the record now stands, the defendants have forfeited the advantage of deference. Initially, the district judge was far from anxious to grant the relief sought. It was only after what the judge perceived to be a pattern of delays, new objections substituted for old ones, misinformation and other negatives that he finally concluded that he could not trust the defendants in this instance. The details are laid out in his oral opinion and the record contains support for his conclusion. Several examples stand out.
First, for some time, the Department refused to take the GID diagnosis and request for hormone therapy seriously. Its representatives resisted it in other cases, and when their own medical advisers supported the request for Battista, the defendants went back and forth apparently looking for an out. It may take some education to comprehend that GID is a disorder that can be extremely dangerous. But the education seems to have taken an unduly long time in this instance, especially in light of the self-mutilation attempt.
Second, once the medical prescription was clear, several years passed before the defendants produced a substantial security justification; and this, it turns out, depended in part on inaccurate data in paragraphs largely written by Department counsel and inserted at counsel's request after Murphy had made his decision and submitted his initial draft. Murphy admitted in his trial affidavit that he had miscounted the PREA incidents in 2007 and 2008; there were really 41, not 68, reported incidents at the Treatment Center.
Third, for some time, the defendants portrayed the choice facing the court as one between keeping Battista in a severely constraining protective custody unit and denying her hormone therapy. Defendants now show some signs of retreating from this all or nothing choice,
In the end, there is enough in this record to support the district court's conclusion that "deliberate indifference" has been established—or an unreasonable professional judgment exercised—even though it does not rest on any established sinister motive or "purpose" to do harm. Rather, the Department's action is undercut by a composite of delays, poor explanations, missteps, changes in position and rigidities—common enough in bureaucratic regimes but here taken to an extreme. This, at least, is how the district court saw it, and it had a reasonable basis for that judgment.
Another set of defendant arguments is contained only in the reply brief. These include a claim that the decision is inconsistent with the court's earlier denial of relief. This claim, perhaps imprudently, draws attention to the experience with the Department gained by the district court after that denial. Anyway, claims first raised only in reply briefs are forfeit, Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir.1992), and we note only that none of them appear promising even if they had been preserved.