Konitzer v. Frank (711 F. Supp. 2d 874, 2010)

DECISION ON GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. #155)

C.N. CLEVERT, JR., Chief Judge.

Plaintiff, an inmate at the Wisconsin Resource Center (WRC), is proceeding on a Third Amended Complaint, pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1983, claiming the defendants are violating rights secured to the plaintiff by the Eighth Amendment of the United States Constitution. The Third Amended Complaint charges that the defendants are subjecting the plaintiff to cruel and unusual punishment by failing to administer proper treatment for the plaintiffs Gender Identity Disorder (“GID”) and is seeking an order:

(1)enjoining the defendants, their employees, agents and successors in office from providing medical care and treatment to the plaintiff that is inconsistent with the standards of medical care and treatment for GID in the State of Wisconsin as a whole;

(2) enjoining the defendants, their employees, agents and successors in office from refusing to provide and delaying provision of necessary medical treatment and care for GID to the plaintiff either at suitable and adequate facilities within the WRC or elsewhere;

(3) enjoining the defendants, their employees, agents and successors in office from failing to instruct, supervise and train their employees and agents in such a manner as to assure the delivery of medical treatment and care to the plaintiff which is consistent with the standards of medical care in the State of Wisconsin as a whole;

(4) establishing an independent panel of medical experts to regularly evaluate the delivery of medical treatment and care to the plaintiff and ensuring compliance with court orders respecting this matter; and

(5) awarding the costs and expenses of this action.

The defendants disagree and are asking for partial summary judgment dismissing all but one of the plaintiffs claims for injunctive relief.

I. STANDARD FOR SUMMARY JUDGMENT

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). “Material facts” are those facts that, under the applicable substantive law, “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute of “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The burden of showing the needlessness of trial — (1) the absence of a genuine issue of material fact; and (2) an entitlement to judgment as a matter of law — is upon the moving party. However, when the opponent is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267, 106 S.Ct. 2505; see also Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (stating that “proper” summary judgment motion may be “opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings”). “Rule 56(c) mandates the entry of summary judgment, ... upon motion, against a party who fails to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

In evaluating a motion for summary judgment, courts draw all inferences in a light most favorable to the nonmoving party. Johnson v. Pelker, 891 F.2d 136, 138 Nth Cir.1989). “However, we are not required to draw every conceivable inference from the record — only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) (citation omitted).

II. RELEVANT UNDISPUTED FACTS

A. Background

Konitzer was first committed to the Wisconsin Department of Corrections (DOC) in April 1982. (DFOF ¶ 1.) Between April 1982 and May 1993, Konitzer was housed in several DOC correctional institutions, having been released on three separate occasions. (DFOF ¶2.) He escaped from custody in May 1991, and was unaccountable until being captured on May 28, 1991. Id. Konitzer’s most recent period of incarceration began December 20, 1994, following a conviction on three counts of armed robbery masked; three counts of armed robbery; one count of armed robbery-repeater; and one count of possession of a firearm by a felon. (DFOF ¶ 3.) He is serving a 128-year sentence and is eligible for parole on June 10, 2026. (DFOF ¶ 4.) Konitzer’s maximum release date is February 9, 2081, whereas his maximum discharge date is June 11, 2122. Id.

At an early age, Konitzer did not feel comfortable as a biological male. (PFOF ¶ 34.) Often, he would dress in his sister’s clothes and wear his mother’s makeup. Id. Most of the time, Konitzer kept his discomfort about his body to himself. (PFOF ¶ 35.) When he told his parents that he felt like a girl, his stepfather tried to convince him otherwise and beat him when that failed. Id.

While serving a previous sentence, Konitzer told prison psychiatrists that he believed he was a transsexual. Id. A February 13, 1988, clinical dictation by Pauline Thome states:

Mr. Konitzer was found guilty of making a weapon. He appealed but the appeal was denied. During the appeal, he said he was making a weapon to disguise the fact that he was making stockings for himself with the shirts. By admitting what he was doing, Mr. Konitzer broke a 10 year secret about his transsexualism. Mr. Konitzer does not experience a conflict about his sexual identity, only a conflict about bringing it out in the open. He feels extremely threatened by the possibility that other inmates will know about his transsexual behavior, and his homosexual inclination.

(PFOF ¶ 37, Cothroll Decl. ¶4, Ex. 208, Bates No. 2668-69.)

In 1993, Konitzer began seeking treatment for GID at Pathways Counseling Center in Milwaukee. (PFOF ¶ 38.) Pathways evaluated Konitzer and determined that he suffered from GID, placed him in group therapy, and referred him for hormone therapy. Id. During that time, Konitzer began referring to himself as Donna, initiated electrolysis, dressed as a woman, and sought relationships with friends who supported his belief that he was a woman. Id.

About three months into the hormone therapy, Konitzer was introduced to cocaine by a friend, Kelly Stark. (PFOF ¶ 40.) Stark pressured Konitzer to quit hormone therapy in hopes of an intimate relationship with her. Id. Addicted to cocaine, Konitzer ceased taking his female hormones and stopped attending therapy sessions at Pathways, thereby causing his female development to end. (PFOF ¶ 41.) While on cocaine, Konitzer committed several crimes which led to his arrest in June 1994 and the sentence he is now serving. (PFOF ¶ 42.)

Konitzer has been housed at various DOC correctional institutions, including Dodge Correctional Institution (DCI), Waupun Correctional Institution (WCI), Green Bay Correctional Institution (GBCI), the Wisconsin Resource Center (WRC), and Columbia Correctional Institution (CCI). (DFOF¶ 7.) While incarcerated at GBCI, Konitzer used a razor blade to cut open his scrotal tissue, leaving one testicle exposed and losing a lot of blood. (DFOF ¶ 47.) On September 5, 2002, he was moved to the WRC due to disfigurement attempts involving use of a nail dipper to wound his scrotum. (DFOF ¶ 10.)

The WRC is part of the Department of Health and Family Services (DHFS), Division of Disability and Elder Services and provides mental health treatment to the DOC inmates as its primary mission. (DFOF ¶ 12-13.) The DOC and the DHFS employees work at the WRC. (DFOF ¶ 14.) The DOC employees include security staff, namely, the captains, the sergeants, and the correctional officers.

Defendant Byran Bartow has been employed by the DHFS as Director of the WRC since approximately March 28, 2000. (DFOF ¶ 15.) As Director, Bartow manages the WRC. (DFOF ¶ 16.) He is involved in policy making and signs all the WRC policies and procedures, including those related to treatment. Defendant Mario Canziani has been employed by the DHFS as the WRC Security Director since August 1996. (DFOF ¶ 17.)

There are approximately 344 DOC inmates housed in the WRC for mental health care programs, and 60 patients detained or committed as sexually violent persons under Wis. Stat. Chapter 980. (DFOF ¶ 18.) Only male inmates and patients are housed at the WRC. (DFOF ¶ 19.) Typically, inmates are transferred to the WRC when they exhibit mental health problems in the prison environment, such as withdrawn or unresponsive demeanor and adjustment difficulties, including suicide attempts. (DFOF ¶ 20.) The DOC is required to provide the WRC with referral information, but there are no strict diagnostic criteria required of the DOC inmates transferred to the WRC. (DFOF ¶ 20.) The WRC conducts intake and does an assessment of new inmates, which includes medication review and psychiatric evaluations. (DFOF ¶ 22.) Inmates are then placed in a program or series of programs which staff believe best meet their needs.

The DOC does not establish policies at the WRC, but the WRC adheres to the DOC’s policies and administrative rules, except when the issue is central to the mental health care of the inmates housed at the WRC. (DFOF ¶ 23.) Eventually, most inmates at the WRC are transitioned back to the DOC. (DFOF ¶ 24.) The WRC administrators believe it is in the best interests of inmates that they are treated no differently at the WRC than they would be at the DOC because consistent treatment makes it easier for the inmate to transition back into the DOC. Also, they believe that if inmates were treated differently, other inmates may be encouraged to seek transfers to the WRC by acting out in a manner that would facilitate their transfer to the WRC and delay their return to the DOC. Thus, the WRC attempts to maintain as much of a prison environment as possible for safety, as well as for treatment and inmate management. (DFOF ¶ 26.)

B. Gender Identity Disorder

The DOC diagnosed Konitzer with GID in December 1999 and the DOC has prescribed hormone therapy since that date. (PFOF ¶ 2; DFOF ¶28; DFOF ¶¶210-303.) Konitzer feels “trapped in the wrong body.” (PFOF ¶ 3.) The disconnect between Konitzer’s male body and his female identity causes him a great deal of stress, and he has been diagnosed with post traumatic stress disorder. (PFOF ¶ 4.) To relieve this stress, Konitzer has tried to live as a female while in prison. Id.

GID is a rare disorder with an approximate incidence between 1 in 11,900 to 45,-000 in males and 1 in 30,000 to 100,000 in females. (PFOF ¶6.) Persons with GID are uncomfortable being regarded by others, or functioning in society, as a member of their designated sex. (PFOF ¶ 5.) Some persons with GID seek hormonal and surgical treatments to alleviate their discordance. Id.

The Diagnostic and Statistical Manual, Fourth Edition (“DSM-IV”), is a manual that lists various mental health conditions and is used to standardize diagnoses and to provide a reference point respecting diagnoses, including GID. (PFOF ¶¶ 14-15.) The DSM-IV defines GID as: (1) A strong and persistent cross-identification (not merely a desire for any perceived cultural advantage of being the other sex) manifested by symptoms such as a stated desire to be the other sex, frequent passing as the other sex, desire to live or be treated as the other sex, or the conviction that he or she has the typical feelings and reactions of the other sex; (2) Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex manifested by symptoms such as preoccupation with getting rid of primary and secondary sex characteristics (e.g., request for hormones, surgery, or other procedures to physically alter sexual eharaeteristics to simulate the other sex) or belief that he or she was born the wrong sex; (3) The disturbance is not concurrent with a physical intersex condition; and (4) The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. (PFOF ¶ 16.)

The DSM-TV sub-classifies a GID patient by the patient’s sexual preference as attracted to males, attracted to females, attracted to both, or attracted to neither. (PFOF ¶ 17.) The sub-classification was intended to assist in determining, over time, whether individuals of one sexual orientation or another experienced better outcomes using particular therapeutic approaches; it was not intended to guide treatment decisions. (PFOF ¶ 18.) Id.

The Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders, Sixth Version, February 2001 (“Standards of Care”), provide in relevant part:

The Purpose of the Standards of Care. The major purpose of the Standards of Care (SOC) is to articulate this international organization’s professional consensus about the psychiatric, psychological, medical, and surgical management of gender identity disorder. Professionals may use this document to understand the parameters within which they may offer assistance to those with these conditions. Persons with gender identity disorders, their families, and social institutions may use the SOC to understand the current thinking of professionals. All readers should be aware of the limitations of knowledge in this area and of the hope that some of the clinical uncertainties will be resolved in the future through scientific investigation.

The Overarching Treatment Goal. The general goal of psychotherapeutic, endocrine, or surgical therapy for persons with gender identity disorders is lasting personal comfort with the gendered self in order to maximize overall psychological well-being and self-fulfillment.

The Standards of Care Are Clinical Guidelines. The SOC are intended to provide flexible directions for the treatment of persons with gender identity disorders. When eligibility requirements are stated they are meant to be minimum requirements. Individual professionals and organized programs may modify them. Clinical departures from these guidelines may come about because of a patient’s unique anatomic, social, or psychological situation, an experienced professional’s evolving method of handling a common situation, or a research protocol. These departures should be recognized as such, explained to the patient, and documented both for legal protection and so that the short and long term results can be retrieved to help the field to evolve.

The Clinical Threshold. A clinical threshold is passed when concerns, uncertainties, and questions about gender identity persist during a person’s development, become so intense as to seem to be the most important aspect of a person’s life, or prevent the establishment of a relatively unconflicted gender identity. The person’s struggles are then variously informally referred to as a gender identity problem, gender dysphoria, a gender problem, a gender concern, gender distress, gender conflict, or transsexualism. Such struggles are known to occur from the preschool years to old age and have many alternate forms. These reflect various degrees of personal dissatisfaction with sexual identity, sex and gender demarcating body characteristics, gender roles, gender identity, and the perceptions of others. When dissatisfied individuals meet specified criteria in one of two official nomenclatures — the International Classification of Diseases 10 (ICD-10) or the Diagnostic and Statistical Manual of Mental Disorders — Fourth Edition (DSM-IV) they are formally designated as suffering from a gender identity disorder (GID). Some persons with GID exceed another threshold — they persistently possess a wish for surgical transformation of their bodies.

Two Primary Populations with GID Exist-Biological Males and Biological Females. The sex of a patient always is a significant factor in the management of GID. Clinicians need to separately consider the biologic, social, psychological, and economic dilemmas of each sex. All patients, however, should follow the SOC.

After the diagnosis of GID is made the therapeutic approach usually includes three elements or phases (sometimes labeled triadic therapy): a real-life experience in the desired role, hormones of the desired gender, and surgery to change the genitalia and other sex characteristics.

Many persons with GID will desire all three elements of triadic therapy. Typically, triadic therapy takes place in the order of hormones = > real-life experience = > surgery, or sometimes: real-life experience => hormones => surgery.

However, the diagnosis of GID invites the consideration of a variety of therapeutic options, only one of which is the complete therapeutic triad. Clinicians have increasingly become aware that not all persons with gender identity disorders need or want all three elements of triadic therapy.

(George Daley Dep., Sept. 10, 2004, Ex. 12, Bates No. 5478-80.)

When Konitzer’s current period of incarceration began, he did not have any female development. (PFOF ¶ 43.) Following his convictions, Konitzer’s gender dysphoria did not subside, and his distress worsened because he was living as a male. (PFOF ¶ 45.) Konitzer tried to obtain hormone therapy while incarcerated at WCI, but his request was denied by a nurse. Id. In November 1999, Konitzer wrote defendant Sharon Zunker, then Director of the Bureau of Health Services, requesting hormone therapy and an orchiectomy. (PFOF ¶ 46.) The request proved unsuccessful. Id. However, on December 8, 1999, Dr. Metodio Reyes requested authorization to continue Konitzer’s hormone therapy. (DFOF ¶214.) The next day, DOC Medical Director George Daley approved the request. (DFOF ¶ 215).

While at GBCI, Konitzer also requested the opportunity to live as female, and sought the help of Dr. Gerald Wellens in obtaining makeup and female undergarments. (PFOF ¶ 60.) Dr. Wellens was unable to assist Konitzer in obtaining makeup or female undergarments and was told by GBCI Warden Daniel Bertrand, “if you let one inmate wear a bra and panties, then they’ll all want to wear a bra and panties.” (PFOF ¶ 62.) Afterward, Konitzer would make cosmetics and find ways to obtain female undergarments. (PFOF ¶ 63.)

On April 27, 2000, Konitzer received an adult conduct report at GBCI for wearing a bra. (PFOF ¶ 66.) While at GBCI, Dr. Wellens observed that Konitzer wore makeup regularly. (PFOF ¶ 64.) On October 4, 2000, GBCI Deputy Warden Michael Baenen wrote Konitzer that “[a] prohibition against make up at work is not a prohibition against make up in your cell or other areas.” (PFOF ¶ 65.) According to Dr. Randi Ettner, living as a female consolidates the female identity for the male-to-female transsexual and creates harmony between outward appearance and inner self. (PFOF ¶ 61.)

On June 15, 2000, Dr. Laurens D. Young, Chief Psychiatric Consultant to the DOC, wrote Sharon Zunker informing her that in addition to Konitzer, two other inmates in the DOC system on hormone therapy had mutilated their genitals and that such behavior was typical for patients with GID. (PFOF ¶ 69.)

In early January 2001, Konitzer attempted suicide at GBCI by trying to hang himself. (PFOF ¶ 70.) Konitzer felt depressed over incidents of sexual assault involving a GBCI prison guard, and because he felt that he was not receiving the proper treatment for his GID. Id. In late January 2001, Konitzer cut skin away from his scrotum and tied a cord around his testes to cut off the blood flow because he hated living as a male. (PFOF ¶ 71.) Konitzer was transported to a hospital in Green Bay for treatment of the genital wound. (PFOF ¶ 72.) Prior to transferring Konitzer to the hospital, female guards at GBCI conducted a strip search. Id. Konitzer’s self-mutilation required transfer to the University of Wisconsin Hospital where surgeons removed Konitzer’s left testicle and portions of the right testicle after obtaining court authorization. The hospital went to court after Konitzer insisted on removal of both testicles. (PFOF ¶¶ 83-84.) Konitzer was taken to the WRC following release from the hospital. Id.

When Konitzer was transferred to the WRC, he had three sets of women’s underwear, three bras, one nightgown, and six sets of men’s bikini style underwear. (PFOF ¶ 73.) The WRC confiscated these items as unallowable property. Id. On February 19, 2001, Konitzer filed an offender complaint stating that Steve Hamilton of the WRC had confiscated the six sets of men’s bikini underwear as female clothing and that they should be returned. (PFOF ¶ 74.) The complaint was affirmed and staff returned the underwear to Konitzer. Id.

An Inmate Classification Summary for the WRC states that during staffing for Konitzer’s case on March 8, 2001, Dr. Arong stated she believes Konitzer is stable for transfer. (PFOF ¶ 75.) She added that it is possible he will attempt to hurt himself again due to his gender identity disorder. Id. On May 1, 2001, Deputy Warden Baenen wrote Konitzer stating: “You further raise the issue of wearing make up and being searched by female officers. Clearly you did do both of these at GBCI. The issue, however, is not whether this ever happened, but whether it was sanctioned as part of institutional policy while you were here. The answer to that question is no, neither was sanctioned.” (PFOF ¶ 76.)

On March 25, 2003, Dr. Kevin Kallas wrote to Konitzer, noting his six attempted self-castrations and self-penectomy. (Cothroll Decl. ¶ 4, Ex. 203, Bates No. 5402-03.) Dr. Kallas stated that “[t]his letter is in response to your correspondence with Governor Jim Doyle,” and that “[y]ou state that treating you as a male has caused you six attempted self-castrations and one instance of attempting to cut your penis off.” Id.

In July 2003, Konitzer attempted suicide at the WRC by standing in a bucket of water and dropping a plugged-in alarm clock. (PFOF ¶ 88.) Staff at the WRC turned off the power, however, before the alarm clock reached the water. Id. Shortly thereafter, Konitzer again attempted suicide by crushing his hyoid bone in his neck with a nylon cord. (PFOF ¶ 90.) Konitzer attempted suicide because he did not want to live life as a male. (PFOF ¶¶ 89,91.)

Konitzer’s March 28, 2005, Revised Release Transfer Summary states that his self-abusive behavior does not result from any form of manipulation, but appears to result from a sense of hopelessness that causes self-destructive feelings. (PFOF ¶ 92.) WRC Security Director Canziani is aware of one of Konitzer’s self-castration attempts and one of his suicide attempts (PFOF ¶ 93), and Director Bartow recalls Konitzer’s suicide and castration attempts (PFOF ¶ 94). According to Dr. Tom Speech, Konitzer had a long history of attempted self-castration, which as a form of self-injury was a concern to the WRC staff. (PFOF ¶ 95.) Dr. Thomas Michlowski, a psychiatrist and Medical Director of the WRC, knows that attempted castration has been an issue for Konitzer from time to time, and is aware that Konitzer attempted suicide at the WRC. (PFOF ¶ 97.)

On May 15, 2006, in an effort to further alleviate his gender dysphoria, Konitzer attempted to castrate his remaining testes. (PFOF ¶ 209.) Konitzer’s attempt resulted in his transfer to Theda Clark Medical Center in Neenah, Wisconsin. Id. There, on May 16, 2006, doctors surgically removed Konitzer’s remaining testicle. Id.

Since May 17, 2006, shortly after his castration attempt, Konitzer has lived in a WRC cell containing a private toilet. (PFOF ¶ 210.) A window shutter over the door prevents other inmates from viewing Konitzer in compromising situations, such as when he uses the toilet, but staff are still able to see him during rounds. Id. Although some inmates have made comments to Konitzer about his living situation, none have been negative, nor has Konitzer been assaulted since May 17, 2006. Id.

Around the same time, on or about March 17, 2006, the WRC medical staff requested that Konitzer be referred to the University of Wisconsin endocrinology clinic (“UW”) for “recommendations on dosages of medication, estrogen, etc.” (Id.; Konitzer Suppl. Decl., Ex. 217.) The request further stated that the WRC “will be required to withdraw Estrogen. Please recommend method and associate [sic] medical problems.” Id.

In September 2006, Dr. Roger Kulstad of the UW Hospital recommended that Konitzer receive Vaniqa cream, a hair growth retardant, for folliculitis (hair follicle infection) on his face. (PFOF ¶ 214.) In addition, Dr. Kulstad recommended Rogaine and a bra, noting with respect to the latter that Konitzer receive “a bra for adequate breast support. Breasts are Tanner IV consistent with adult female. This is medically necessary.” Id. On September 28, 2006, UW Hospital issued an Endocrine-Diabetes Consult Note signed by the attending endocrinologist, Dr. Elaine M. Pelley. Id. The Note reiterates Dr. Kulstad’s previous recommendations regarding Vaniqa and a bra. Id. In the Note, Dr. Pelley stated that she agreed “with [Dr. Kulstad’s] findings and plan as outlined above.” (Id.; Cothroll Surreply Decl. ¶ 2, Ex. 218 at UW 467.)

C. DOC Policy

The DOC has in place Executive Directive # 68. (DFOF ¶ 72.) This directive is entitled “Scope of Services for Treatment of Gender Identity Disorder.” (Bartow Dep., Sept. 9, 2004, Ex. 6.) Executive Directive # 68 was the result of a collaborative effort by DOC health services staff, DOC’s chief psychiatrist, other DOC psychiatrists and psychologists, and members of the DOC executive staff. (DFOF ¶ 73.) According to defendant Sharon Zunker, DOC Health Services Coordinator, the policy was based upon the input of the “executive staff who reviewed this policy and procedure, including wardens and other members of the executive staff at the time.” (Zunker Dep. at 76.) Executive Directive # 68 was signed by then DOC Secretary Jon E. Litscher on December 17, 2002. (DFOF ¶ 74.) Prior to January 24, 2006, the effective date of Wis. Stat. § 302.386(5m), Executive Directive # 68 allowed for hormonal therapy to be initiated by a DOC physician for inmates with severe gender dysphoria. (DFOF ¶75.)

Gender dysphoria is a broader term that includes GID. (DFOF ¶ 77.) Under Executive Directive # 68, offenders are placed in facilities in accordance with their gender as determined by their external genitalia. (DFOF ¶ 78.) The WRC has directed its staff to treat Konitzer as a male in all respects. (DFOF ¶ 80.)

The WRC will not deviate from general corrections practice regarding the management of an inmate’s mental illness unless it considers the departure to be central to the mental illness at issue. (PFOF ¶ 100.) Bartow, as the leader of the WRC, has decided that the WRC will not treat any male inmate as a female and will not do so in Konitzer’s case because of DOC policy. (PFOF ¶ 101.) Regarding the prospect of treating Konitzer as a female, Bartow maintains that “if our team was convinced and had a convincing argument that is what really needed to be done for his case, I would arrange to have him go somewhere else, by whatever means it took, because we don’t do that here.” (Bartow Dep. at 136; PFOF ¶ 102.)

In discussing Konitzer’s therapy sessions to address his disorders, Dr. Speech testified: “From our point of view, you’re in a male correctional facility, and it looks like you’re going to be there a very long time. And what we can do is help you adjust to that. We can help you cope with having a gender identity disorder under those circumstances.” (Speech Dep. at 49-50; PFOF ¶ 109.) When asked whether he had explored the options of allowing Konitzer to wear makeup, to wear female attire or to be referred to as a female, defendant Dr. Speech testified: “We determined that since the Department of Corrections did not allow any of those things, that it would be inappropriate to allow Konitzer to do any of that here, because he’s going to go back to an environment where he only stands to lose all of those things, which would be a significant setback to him, particularly given his emotional makeup and his diagnoses. That would be setting him up for failure when he returns. He would become extremely angry is our belief and we would be right back where we started, just setting him up for frustration.” (Speech Dep. at 57-58; PFOF ¶ 110.)

In 2002, the WRC clinical staff suggested to DOC staff treatment strategies such as “allowing Mr. Konitzer to wear female clothing or undergarments as a reward for lack of self-mutilation, or having us pursue sex reassignment surgery.” (Kallas Dep. at 62; PFOF ¶ 111.) On October 8, 2002, Dr. Speech wrote Dr. Kallas stating that he had “reservations about not having female staff present at searches. This provision was set up for our protection as much as for the protection of the inmates.” (Speech Dep. Ex. 41, Bates No. 5444; PFOF ¶ 112.) Dr. Kallas testified that Dr. Speech made the recommendations for female clothing and sex reassignment surgery, but that the DOC would not implement any of them because of the DOC policy and that the correctional environment would not allow the WRC’s suggestions. (PFOF ¶ 113.) Konitzer continues to wear makeup and feminize his appearance at the WRC, despite the policy against him possessing and wearing feminine items. (PFOF ¶ 121.)

D. Expert Opinions

The WRC staff diagnosed Konitzer with the following DSM-IV Axis I diagnoses in addition to GID: cocaine dependence in remission in a controlled environment, post traumatic stress disorder, and major depression, as well as the DSM-IV Axis II diagnosis of personality disorder with cluster B traits. (DFOF ¶ 43.) Cynthia Osborne, a psychotherapist and assistant professor in the Department of Psychiatry & Behavioral Sciences at Johns Hopkins University School of Medicine, has a similar opinion and believes that Konitzer meets the criteria for DSM-IV Axis II diagnoses of antisocial personality and borderline personality disorder. (DFOF ¶¶ 44, 45.) Because of the presence of Axis II symptomatology, Osborne is uncertain whether Konitzer’s GID is the “cause” of his disruptive, suicidal, or self-harming behaviors. (DFOF ¶ 54.)

In the view of Dr. Daniel Claiborn, who has a Ph.D. in counseling psychology and is a licensed psychologist in Kansas and Missouri, Konitzer manifests severe, chronic “Cluster B” personality disorders, characterized by self-centeredness, drama, volatile emotions, and erratic behaviors. (DFOF ¶¶ 46,48.) Moreover, Dr. Claiborn opines that these combined personality disorders (antisocial, borderline, histrionic, and narcissistic) militate against honest self-exploration, trust, commitment, and taking responsibility for change. Id. Further, Dr. Claiborn believes antisocial personality disorder is Konitzer’s most severe disorder. (DFOF ¶ 47.) It is Dr. Claiborn’s opinion that Konitzer’s treatment must be designed carefully to address GID in the context of severe and overlaying personality pathologies and that failure to do so will likely result in disappointing outcomes for Konitzer and the State of Wisconsin. (DFOF ¶ 49.)

Randi Ettner, Ph.D., who was retained by Konitzer, recommends that Konitzer receive the following treatment for GID: (1) evaluation by a physician who specializes in the care of GID patients so that Konitzer’s hormonal protocol can be accurately reconfigured; (2) follow-up with the same medical specialist every six months, or as necessary; (3) non-medical security examinations should be executed by female correctional personnel; (4) periodic access to a mental health care giver with expertise in treatment of this class of disorder, i.e. a member of the Harry Benjamin International Gender Dysphoria Association; (5) access to a modest amount of make-up; (6) use of female undergarments; (7) privacy toilet and showering; (8) the ability to use a female name in addressing oneself, and to be so addressed by others; (9) the ability to use products such as depilatories and/or hair growth stimulators that are harmless and enhance one’s ability to live in the preferred gender role. (DFOF ¶ 50.) However, she does not know the exact status of Konitzer’s medical treatment and it is beyond her experience to comment on Konitzer’s particular hormone treatment. (DFOF ¶ 52.) Nonetheless, Dr. R. Ettner believes it is not malpractice for an endocrinologist to treat a patient who has GID even though they have not done that before. (DFOF ¶ 56.) Dr. R. Ettner does not have experience treating individuals while they are incarcerated or in prison security issues or prison administration, and only interviewed Konitzer once at the WRC. (DFOF ¶ 55.)

In the opinion of Dr. Claiborn, physicians who are generally informed about transsexualism and consult with an endocrinologist are competent to help Konitzer make informed decisions about his treatment options. (DFOF ¶ 57.) Psychologists are not allowed to practice outside their areas of expertise, but, in Dr. Claiborn’s opinion, education and familiarity are sufficient qualifications for a mental health provider to help Konitzer consider his options within the prison system. (DFOF ¶ 60.) Dr. Claiborn opines that mental health personnel should have an understanding of the prison resources and of techniques for helping individuals adjust to circumstances beyond their control, whatever those might be. Id. Mental health personnel in prisons and working with Konitzer should also have familiarity with personality disorders. Id.

In the opinion of Osborne, focusing Konitzer’s treatment on adjustment rather than cross gender transition is a clinically sound and ethically wise stance. (DFOF ¶ 61.)

Frederic Ettner, M.D. was also retained by Konitzer and recommends that Konitzer receive the following protocol: (1) complete physical examination and laboratory testing including hormonal assessment; (2) HRT (hormone replacement therapy), specifically non-conjugated estrogens, i.e. estradiol valerate (bio-identical) in the form of patch, gel, or cream; (3) anti-androgen finasteride to block exogenous androgens and stimulate scalp hair and decrease body hair; (4) consistent follow-up every three months; and (5) coordination with psychiatrists and psychological recommendations. (DFOF ¶ 62.) It is the view of Dr. F. Ettner that a medical doctor may give Konitzer a complete physical examination and laboratory testing including hormonal assessment, and that it is not necessary that the doctor have expertise in GID to perform this. (DFOF ¶ 65.) Dr. F. Ettner concedes that Konitzer probably could have conjugated estrogens for a period of time until stabilized, and then after a period of perhaps a year or two, could easily be transferred to a non-conjugated estrogen. (DFOF ¶ 66.)

According to defendants’ expert Dr. Samuel Westriek, there are no “official” guidelines for the best medical treatment of male-to-female transsexuals but a few authors have published recommendations based on their considerable experience with these patients. (DFOF ¶ 63; Westrick Dep., May 16, 2005, Ex. 88 at 2.) Consensus exists among experts that estrogen therapy is a cornerstone of treatment for a male-to-female individual with GID, while nuances of type and dose remain controversial, or at least subject to much diversity of opinion. (DFOF ¶ 64.)

From a psychiatric perspective, hormones are not prescribed to a male-to-female GID patient for feminization per se. (DFOF ¶ 67.) Rather, hormones are prescribed to reduce symptoms of dysphoria and to improve function. Id. Osborne also opines that while feminization may be the male-to-female GID patient’s desire, the clinically neutral clinician is invested only in assisting the patient to function better, to adjust to his environment, and to ameliorate to the greatest extent possible dysphoria and any co-morbid symptoms. (DFOF ¶ 68.)

With regard to the administration of anti-androgen finasteride to block exogenous androgens, stimulate scalp hair and decrease body hair, Dr. F. Ettner believes that finasteride is not absolutely necessary for the treatment of transgendered males to females. (DFOF ¶ 69.) Dr. F. Ettner testified:

In the standards of care, it is recommended that it [finasteride] be utilized. Is it absolutely necessary? If it wasn’t available in her part of the universe, no, it would not be absolutely necessary. One could utilize other hormones to help treat the gender dysphoria, but certainly if it is available, it should be looked into and utilized.

(F. Ettner Dep., May 6, 2005, at 37.) Similarly, in the opinion of Dr. Westriek, it does not appear there is any rationale to prescribe an anti-androgen agent to Konitzer because there are no androgens in Konitzer’s system causing masculinization. (DFOF ¶ 70.)

As for coordination of Konitzer’s psychiatrists and his psychological recommendations, Dr. F. Ettner acknowledges that phone calls, e-mails or any type of coordination with someone such as an endocrinologist and a treating psychiatrist would satisfy Konitzer’s treatment needs. (DFOF ¶ 71.) Further, Dr. F. Ettner opines that refusing to provide Konitzer with the real-life experience puts him at risk for castration and self harm, and that the frustration of living with an untreated gender condition always has disastrous consequences. (PFOF ¶ 118.) Dr. F. Ettner testified:

Standard of care does not specify a list of particular ingredients that will create the image that Donna Down Konitzer needs to establish a level of well-being. It does, however, provide a guideline, and in that guideline, the thrust of it is to help these people consolidate an identity that is ego-syntonic and causes them to feel comfortable and safe in this world, therefore, the real-life experience, so they get practice in living 24 hours a day, seven days a week in their preferred gender.

(F. Ettner Dep. at 101; PFOF ¶ 122.)

Dr. Randi Ettner’s opinion is that certain things, such as depilatories and hair growth stimulators, which may appear superficial or not medical, play a very prominent role in the treatment of GID and allow the patient to move from a discordant and uncomfortable life that interferes with their functioning into a safer and more comfortable gendered ecology. (PFOF ¶ 123.) Moreover, Dr. R. Ettner opines that Konitzer has not received the minimum standard of care for the treatment of GID. (PFOF ¶ 124.) Indeed, she maintains that many of Konitzer’s interventions have been counter-therapeutic. Id. It is the view of Dr. R. Ettner that the overarching goal of Konitzer’s treatment is to assist him to adapting to life as a male.

Cynthia Osborne advised the DOC to consider:- (1) use of the inmate’s chosen name and feminine pronouns by all treatment, security and administrative personnel, which can be done without pursuit of a legal name change; (2) the wearing of feminine apparel, such as undergarments, in ways that minimize security risks, for example, Konitzer could be allowed cross dressing opportunities in the privacy of his own room; (3) the use of some items of light makeup in the privacy of his room; (4) the use of Rogaine, hair removal wax, and other products that may assist Konitzer in quieting the dysphoria; (5) the opportunity to shower privately; (6) the assignment of female guards whenever possible to conduct strip searches; and (7) the thorough training of institutional staff to understand GID. (PFOF ¶ 126.) Additionally, Osborne recommends that the DOC consider allowing feminizing strategies that do not constitute a threat to security, interfere with daily operations of prison programs, or undermine the safety, functioning, and options of inmates. (PFOF ¶ 127.) According to Osborne, “I have no clinical opposition to this inmate or some other inmates being accommodated in them gender preferences to a reasonable extent. If it does not put them at risk, or other people at risk, I have no objection.” (PFOF ¶ 128.) She added that her opinion was based on the consensus of the collegial community with which she is affiliated. (PFOF ¶ 130.) This collegial community consists of Osborne’s colleagues at Johns Hopkins and other colleagues around the nation with whom she consults and shares treatment opinions. Id. Every group that operates in this country and abroad in the area of GID is familiar with the Standards of Care and recognizes them as guidelines. (PFOF ¶ 131.)

Osborne admits that the literature says it is appropriate to address a GID patient by their preferred gender name, but she believes it is bad clinical advice. (PFOF ¶ 132.) The only literature that supports her opinion is her article on split gender identity, which was the first to advocate that viewpoint. Id. The article on split gender identity was based upon Osborne and her co-author’s observational research and no empirical data. (PFOF ¶ 133.) In defendant Dr. David Burnett’s understanding of the Standards of Care, the real-life experience is a legitimate form of treatment for a GID patient, depending upon that person’s individual situation. (PFOF ¶ 134.)

Dr. Claiborn testified that, more often than not, he interviews individuals when he prepares an expert report. (PFOF ¶ 135.) However, Dr. Claiborn did not interview Konitzer prior to preparing his report. (PFOF ¶ 136.) Dr. Claiborn has never published or written books on GID, and has seen only about thirty patients with GID over the past twenty years, does not subscribe to any journals specific to GID or belong to any associations specific to GID. (PFOF ¶ 137.) Dr. Claiborn testified that the DSM is an economic and political process, and that many so-called disorders are included in the DSM that are not really disorders or diseases at all and he would include GID as one of those. (PFOF ¶ 138.)

Citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), but admitting that he did not read the case, Dr. Claiborn understands the Eighth Amendment to the United States Constitution to prohibit deliberate indifference to serious medical needs. (PFOF If 140, 142.) Dr. Claiborn explained that “serious medical needs” as outlined in his report focuses on the word medical and that a medical need would be one that was resolved through pharmacological or surgical treatment. (PFOF ¶ 141.) In his experience, Dr. Claiborn testified that patients with borderline personality disorder that practice self-mutilation usually do so in the form of wrist slitting. (PFOF ¶ 143.) Dr. Claiborn has never in his experience seen, or heard, of a patient with borderline personality disorder who has attempted genital mutilation, and believes it unusual to see any kind of self-mutilation with a person with antisocial personality disorder. (PFOF ¶ 144.) He does not think that female security examinations, makeup, female clothing, toilet and shower privacy, and referring to Konitzer by a female name is necessary because GID is not a disorder or disease that requires treatment. (PFOF ¶ 145.) Dr. Claiborn does not consider himself to be an expert in prison security, and cannot comment on the issue of what prisons can and cannot do since that is not his area of expertise. (PFOF ¶ 146.)

Osborne, who also stated that she is not an expert in prison security, testified:

A. The presence of sociopathy tendencies does not mean someone has necessarily acted on those behaviorally. This is all a matter of clinical judgment. And I would not, I don’t think I have ever recommended full cross gender transition for someone who has severe personality disorder traits.

Q. So when you state the Harry Benjamin Standards of Care include a criterion of being crime free, are you referring to, is it your impression that the Harry Benjamin standards require crime free criterion for sex reassignment surgery? A. Yes. I think it is implicit.

Q. Would you say that the Harry Benjamin Standards of Care require that a person be crime free for treatments of gender identity disorder other than sex reassignment surgery?

A. This criteria right here is for hormones. That is a requirement for hormone therapy. So that precedes surgery.

Q. So you are saying then in general the Harry Benjamin Standards of Care require criteria of being crime free?

A. Require is a strong word for something that is a non-regulatory guideline. But this is a recommended way by this foundation of treating GID. And it includes this criterion, suggested criterion that sociopathy be under control. A person who is actively acting out or in prison because they have acted out I would say that is just a major logical contraindication.

(PFOF ¶ 141; Osborne Dep., May 17, 2005, at 134-36.) Osborne opines:

I recommend that the DOC consider allowing feminizing strategies that don’t constitute a threat to security, or interfere with daily operations of prison programs, the safety or functioning of inmates, and that don’t jeopardize the future options of the inmate. Some accommodation will reduce power struggles, invite better cooperation, and raise the potential for smoother sailing for both the inmate and the DOC. But accommodating strategies should not be confused with medically necessary treatments. Of the hundreds of gender identity disordered patients I have treated and the dozens in my current caseload, none has these kinds of products and services funded by third party payers.

(Osborne Dep., Ex. 95 at 43.)

Dr. R. Ettner testified that simply because a particular treatment is cost prohibitive, that does not mean it is not medically necessary. (PFOF ¶ 151.) There are some people who do not have insurance, which makes any medically necessary procedure prohibitive for them. Id. Moreover, even if the DOC were to change its policy and permit Konitzer to wear makeup, the final authority as to whether Konitzer could wear makeup at the WRC rests with Bartow, who is not a clinician. (PFOF ¶ 153.)

Dr. Santos-Borja testified:

Q. ... Konitzer’s self-abuse and self-harm appear to result from a sense of hopelessness that caused self-destructive feelings. What’s your sense of what this hopelessness is?

A. Hopelessness about being confined in a — his identity as a male, her identity, hopelessness in terms of being confined in prison for a long, long time and not being able to do anything to be able to live as a female. Also some relationships. I don’t know, problems, those kinds of things.

Q. So hopelessness in the sense that Inmate Konitzer has gender identity disorder and can’t do anything about it?

A. It’s a general sense of hopelessness. It’s cumulative. I wouldn’t say that it’s just because of that particular thing. I think a lot of things makes [sic] Konitzer hopeless. He has a tendency to seek out relationships and there’s, you know, very little chance of having a really long-lasting relationship in this kind of setting.

(Santos-Borja Dep., April 27, 2005, at 69-70.)

Co-morbid disorders mean that an individual has more than one disorder, such as antisocial personality disorder and depression, at the same time. (PFOF ¶ 155.) Dr. R. Ettner would not approach a patient who had GID any differently because that patient might also have other co-morbid personality disorders such as borderline personality disorders. (PFOF ¶ 156.) Just like a medical doctor might see diabetes and GID and Raynaud’s syndrome in the same patient, he would not refuse treatment for anyone of those conditions just because they exist in a person simultaneously. (PFOF ¶ 157.) Osborne testified that she is not aware of any antisocial or borderline patient who has auto-castrated, but that she has had GID patients who have done so. Id.

Dr. R. Ettner interviewed Konitzer at the WRC and administered the MMPI. (PFOF ¶ 159.) The MMPI confirms that Konitzer is at risk for suicide or castration attempt because it indicates a lot of suicidal ideation and depression. Id. The value of the MMPI is that it is normed (compares results against the same group) for correctional settings. (PFOF ¶ 160.) If MMPI test scores are not normed to a matched group that resembles the individual, the scores are meaningless. Id.

Osborne did not administer the MMPI to Konitzer because she is not qualified to administer it. (PFOF ¶ 161.) However, she agrees that the MMPI is normed for the prison population. Id. Instead, Osborne administered the Brief Symptom Inventory, the Derogatis Affects Balance Scale, and the NEO-P-I-R to understand Konitzer’s psychological distress. (PFOF ¶ 162.) None of these psychological tests are normed for prison populations. Id.

E. Security

The risk of danger to staff and inmates in a correctional environment is higher than most aspects of normal society. (DFOF ¶ 86.) The nature of the correctional environment, particularly in view of recent severe population increases, represents a density of human living conditions that is only comparable to the worst of human slums in major urban areas around the world. Id. The human living conditions in correctional facilities are further aggravated in that this density consists of hundreds of individuals at each institution who have led lives of severe social dysfunction in the form of drug abuse, violence, unstable family relationships, and mental health disorders. (DFOF ¶ 87.) In high security prison populations, nearly forty percent of the inmates have committed acts of violence while incarcerated. (DFOF ¶ 88.) The risk that inmates will commit acts of violence while incarcerated is dramatically elevated by a number of conditions that may or may not be present in the prison population. (DFOF ¶ 89.) One is the presence of lethal weapons in the possession of inmates, another is the possession and sale of illegal drugs by inmates, and another is the sexual behavior among inmates. Id. It is not unusual to find that over fifty percent of the incidents in prison are related to sexual partnering among inmates where conflict has developed in the form of jealous partners, failed relationships, or competition from other inmates. (DFOF ¶ 90.) The level of risk of incidents of violence in prison is further elevated when any of the participants has a history of violent, assaultive behavior, such as Konitzer. (DFOF ¶ 91.)

It is the mission and obligation of all American correctional systems to protect inmates and staff from physical harm. (DFOF ¶ 92.) Where inmates show an inclination to be sexually active towards one another, it is common practice for staff to investigate, to be aware, and to take active measures in terms of prevention. (DFOF ¶ 93.) Inmate sexual activity is commonly the subject of administrative discipline. Id. Additionally, corrections staff may elect to separate inmates by a change of cell assignment or cell house assignment. (DFOF ¶ 94.) Where violence appears imminent, inmates may be segregated from others. Id. These are continual practices in an effort to keep the peace in correctional institutions. Id.

The movement of contraband is a security risk at the DOC and the WRC. (DFOF ¶ 110.) Due to the WRC’s open treatment philosophy, inmates are moving from area to area in the facility, and some of the inmates are highly dangerous. (DFOF ¶ 111.) The movement of contraband is an even greater concern at the WRC because inmates are housed there to receive programming for mental health and/or behavioral issues, and the WRC does not typically hold inmates in long-term segregation. (DFOF ¶ 112.)

Strip searches are conducted at the WRC when there is reason to believe that contraband could be concealed on the clothing or body of an inmate. (DFOF ¶ 115.) These searches are required any time an inmate leaves or enters the WRC or any time that an inmate is brought to a secure unit. (DFOF ¶ 116.) Strip searches are necessary under these circumstances to prevent contraband from being brought into the facility and on secure units. It is particularly important to prevent contraband from being brought on to secure units at the WRC because these are disciplinary units that house highly assaultive or abusive inmates, and contraband must be controlled to prevent injury to inmates and staff. (DFOF ¶ 117.)

Personal searches or pat searches on inmates are required randomly; and each WRC unit has criteria for how many random pat searches staff are expected to conduct. (DFOF ¶ 118.) The WRC staff is expected to stop inmates and to conduct pat searches randomly. Pat searches are also conducted whenever inmates leave work areas, as well as kitchen and maintenance areas to ensure that inmates are not smuggling tools, food, or other things to and from their housing unit. (DFOF ¶ 119.) Moreover, pat searches are done as a general security practice. (DFOF ¶ 120.)

The WRC adheres to the DOC administrative rules when conducting strip searches and pat searches. (DFOF ¶ 121.) These rules require that a person of the same sex as the inmate being searched shall conduct the strip search, although any staff member may conduct pat searches.

DOC Security Chief Daniel A. Westfield testified that contraband can be concealed in body cavities, or taped to the body. For these reasons, strip searches must be conducted in accordance with DOC rules and cannot be compromised for any inmate, including Konitzer. Such searches are unpleasant for both the inmate and the staff. (DFOF ¶ 135.) During a strip search, inmates are required to completely expose body orifices for visual inspection. The entire body of the inmate is to be checked, including armpits, hands, pubic region, between toes, soles of feet, rectum, and inner portion of legs. Consequently, DOC rules require that a person of the same sex as the inmate being searched conduct the strip search.

Executive Directive # 68 states in part: The DOC shall use the name of the offender as it appears on the Judgement [sic] of Conviction. The only exception to a name change will be through an order of a judge to have the name of the offender legally changed after the Judgement [sic] of Conviction. A new Judgement [sic] of Conviction must be issued or the court order must specifically state “change all records”.

(Bai'tow Dep., Sept. 9, 2004, Ex. 6.)

Konitzer’s name appears as “Scott A. Konitzer” on his Judgments of Conviction dated June 11, 1997, and December 16, 1994. (DFOF ¶ 140.) Konitzer is in a male institution; was incarcerated under the name of Scott Konitzer and the WRC staff is directed not to address Konitzer by any female name or pronoun. Id. However, the WRC partially accommodates Konitzer’s request to be referred to as a female is by referring to him as “Konitzer,” avoiding the use of Scott. (DFOF ¶ 149.)

Pursuant to Executive Directive # 68, property and apparel allowed to an inmate shall be consistent with the offender’s determined gender. (DFOF ¶ 158.) Gender, under Executive Directive # 68, is determined by the inmate’s external genitalia. Konitzer is not authorized by the DOC to obtain and wear female clothing while housed at the WRC. (DFOF ¶ 159.)

While housed at the WRC, Konitzer is allowed items of clothing and property that males in the DOC prison system are typically allowed. (DFOF ¶ 162.) The WRC conforms its policies related to inmates housed at this facility and allowable clothing and property to the DOC policies and procedures, because eventually most DOC inmates housed at the WRC are returned to a DOC correctional institution. The WRC also conforms its policies and procedures related to an inmate’s allowed clothing and property to DOC’s policies because it is managed as a prison and seeks to avoid wasting resources such as clothing and personal items that an inmate may not retain following transfer to a DOC correctional institution. (DFOF ¶¶ 163-164.)

DOC 309 IMP #2, “Subject: Inmate Personal Clothing,” provides a listing of female and male clothing items that DOC inmates are allowed to obtain and possess. (DFOF ¶ 172.) The IMP # 2 includes a specific listing of allowed personal clothing items to be obtained and possessed by male and female inmates. (DFOF ¶ 173.) The IMP # 2 indicates that only traditional style briefs and boxers are permitted for male inmates, and only traditional style briefs are permitted for female inmates. The IMP # 2 does not allow for male inmates to have bras. (DFOF ¶ 174.)

Each WRC housing unit has a separate shower area. (DFOF ¶ 189.) The shower area on Konitzer’s housing unit consists of two individual shower stalls with curtains for privacy. These shower stalls are in an area that is “L” shaped, and are located on the right-hand side of the entrance and walkway leading to the stalls. The shower stalls are open daily from 6:00 a.m. until approximately 9:00 a.m. (DFOF ¶ 190.) Only two inmates may shower at a time in the separate shower stalls. WRC unit staff have accommodated Konitzer’s request for separate showering hours on his unit, although this has not been provided uniformly. (DFOF ¶ 191.) Currently Konitzer is allowed to take a daily shower and is able to use the shower area alone with the exterior door leading to the shower stalls secured. (DFOF ¶ 192.) This accommodation for private showering is included in Konitzer’s Release/Transfer Summary Inmate form dated March 28, 2005. (DFOF ¶ 193.) The DOC represents that it intends to allow Konitzer to shower separately from other inmates when or if he is transferred back to a DOC institution. (DFOF ¶ 194.)

The restroom (toilet area) floor plan on Konitzer’s housing unit includes urinals and three individual stalls with doors that secure similar to a public restroom; however, the door to the restroom area is opened to the hallway. (DFOF ¶ 195.) Konitzer may use the individual stall and secure the door when using this facility.

In January 2004, Dr. Don S. Schalch, an endocrinologist from the University of Wisconsin Hospital and Clinics recommended that Konitzer be prescribed Rogaine for hair loss. (DFOF ¶ 200.) Dr. Schalch did not believe that Rogaine was necessary to treat functional impairment Konitzer may have. (DFOF ¶ 201.) Rather, it was Dr. Schalch’s clinical judgment that it was reasonable for Konitzer to use Rogaine to enhance the amount of his scalp hair.

The DOC considered Dr. Schalch’s recommendation to provide Konitzer with the non-formulary medication, Rogaine, but refused to provide it because it was considered a cosmetic for hair loss, and thus would not be a covered benefit provided by the DOC. (DFOF ¶ 203.) Further, the WRC determined that it was not in Konitzer’s best interest for it to provide Rogaine, if the treatment would not be allowed to continue following any transfer back to a DOC institution. (DFOF ¶ 204.) Furthermore, female inmates housed at Taycheedah Correctional Institution are not permitted Rogaine or any other type of hair growth stimulators except for medical purposes, and not allowed to purchase and/or use products to decrease or remove unwanted body hair, except for disposable razors. (DFOF ¶¶ 205, 207.) There have been no instances where depilatory products, Rogaine, or Prepuce (finasteride) have been approved for use by any DOC inmate or prescribed for use by any DOC physician or medical professional for the treatment of hair loss. (DFOF ¶ 208.) In any event, Dr. Claiborn opines that hair removal and hair growth products are not required or necessary for Konitzer’s mental health. (DFOF ¶ 209.)

Dr. Gerald Wellens, the former Chief Psychologist at GBCI, oversaw the psychological staff and programs at GBCI. (PFOF ¶ 171.) Dr. Wellens also provided direct psychological services to inmates at the institution. Id. Dr. Wellens became involved with Konitzer’s ease in the fall of 1999 following a self-castration attempt by Konitzer. (PFOF ¶ 172.) At that time, Konitzer had not