United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the pro se amended
complaint of plaintiff Cody Ray Caskey, formerly an inmate at
the Mike Durfee State Penitentiary (MDSP). See
Docket Nos. 1 & 13. Defendants have filed a motion for
summary judgment. See Docket No. 43. This matter was
referred to this magistrate judge for a recommended
disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the
October 16, 2014, standing order of the Honorable Karen E.
Schreier, United States District Judge. For the reasons
discussed below, the court recommends granting
Deliberate Indifference Claim
Caskey alleges defendant Dooley and defendant Adams were
deliberately indifferent to his serious medical needs by
refusing to give him hormone replacement therapy, in
violation of the Eighth Amendment's prohibition against
cruel and unusual punishment. See Docket Nos. 1 and
Defendants' statement of undisputed facts, unresponded to
by Mr. Caskey, is as follows. See Docket No. 45.
time of the events described by Mr. Caskey in his complaints
in this matter, he was incarcerated at the Mike Durfee State
Prison (MDSP) in Springfield, South Dakota. Id. at
p. 1, ¶ 1. By the time he filed his complaint in May,
2017, he had been transferred to the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota.
Id. at pp. 1-2, ¶ 2. He was paroled on March
29, 2018, and currently resides in Texas. Id.
Caskey was initially incarcerated in the South Dakota state
prison system on approximately October 9, 2012. Id.
at p. 13, ¶ 53. Dr. Christopher Davidson, a Sioux Falls
psychiatrist, saw Mr. Caskey upon his first arrival at prison
on October 9, 2012, for an intake mental health appointment.
Id. at pp. 11, 13; ¶¶ 47, 53. The last
time Dr. Davidson saw Mr. Caskey was May 9,
2014. Id. at pp. 11-12, ¶ 48. Dr.
Davidson's records did not document a diagnosis of gender
identity disorder or dysfunction (“GID”) or a
prescription for hormone therapy. Id. at pp. 11-13,
Davidson did diagnose Mr. Caskey with mood disorder,
anxiety disorder, obsessive compulsive personality traits,
and narcolepsy. Id. Dr. Davidson's notes did
indicate that Mr. Caskey had reported to him he walked in a
feminine way and pushed up his boobs. Id.
Furthermore, the notes included Mr. Caskey's report of
being hospitalized at age 14 in a mental institution because
he was starting to reveal his sexuality and deal with it; he
reported having been diagnosed at that time with bipolar
disorder with psychotic features. Id. Mr. Caskey
told Dr. Davidson that since age 14, he had become much more
comfortable and that he had been mostly stable since that
time, especially over the last 4-5 years (i.e. from
approximately 2007-2012). Id.
Caskey told prison health officials in 2014 that he was a
homosexual and had been diagnosed with HIV approximately 18
years earlier. Id. at pp. 13-14, ¶¶ 56-57.
However, Mr. Caskey was noncompliant with anti-viral
medications for HIV and those medications were eventually
discontinued. Id. During his initial period of
incarceration, Mr. Caskey never mentioned having been
diagnosed with GID or having previously been prescribed
hormone replacement therapy. Id. at pp. 13-15,
¶ 56-64. During this initial period of incarceration,
Mr. Caskey never requested that he be prescribed hormone
replacement therapy. Id.
Caskey was paroled from his initial incarceration in
approximately March, 2015. See Docket No. 48 at p.
2. His parole was revoked in August, 2015, and he was paroled
a second time sometime prior to August, 2016. Id.
During this brief, second, period of incarceration, Mr.
Caskey told prison personnel in May, 2016, that he was
transgender and, although he had previously been prescribed
hormone treatment in Texas, he had been off of the treatment
for about 10 years. See Docket No. 45 at pp. 5-6,
¶¶ 18, 20; Docket No. 49 at p. 5, ¶ 16.
being paroled for the second time in 2016, Mr. Caskey
absconded from supervision. See Docket No. 45 at p.
7, ¶¶ 27-30. An arrest warrant was issued for him
on August 30, 2016, for this alleged parole violation.
Id. He was apprehended in Travis County, Texas, on
approximately December 9, 2016. Id. He returned to
South Dakota and his parole was revoked. Id. In
anticipation of Mr. Caskey's return to the South Dakota
prison system, on December 15, 2016, defendants requested Mr.
Caskey's medical records from the Texas facility where he
had been held. Id. at p. 8. ¶ 31.
first mention Mr. Caskey made to prison officials that he
believed he suffered from GID was on January 27, 2017, when
his medical history was taken upon his readmission to prison
following his (second) parole revocation. Id. at p.
7, ¶ 26. When Mr. Caskey received an initial physical
examination upon reentering prison on February 1, 2017, he
reported he had been receiving hormone replacement therapy in
Texas immediately prior to his apprehension and he asked that
his medication be continued. Id. at p. 8, ¶ 32.
However, Mr. Caskey has admitted variously that he has been
off of hormone replacement therapy for either 5 or 10 years,
which would make his statement in February, 2017, untrue.
See Docket No. 10, p. 41; Docket No. 13, p. 57;
Docket No. 49 at p. 5, ¶ 16.
February 10, 2017, Mr. Caskey was the subject of a health
intake interview. Id. at p. 16, ¶ 66. He told
prison officials he was transgender and had attempted suicide
at age 16 due to the stress of being transgender, though he
denied any suicidal ideation at the time of the interview.
Id. at p. 16, ¶¶ 66-67.
first grievance Mr. Caskey ever filed with defendants
regarding his request for hormone replacement therapy was
dated February 16, 2017. Id. at pp. 4-5,
¶¶ 12, 19. In his grievance, he stated he was not
feeling proper after being taken off of prescription
Premarin. Id. He requested
“continuation” of Premarin to stabilize his
February 22, 2017, Mr. Caskey reported to Health Services to
follow up on his request for hormone therapy. Id. at
p. 8, ¶ 33. Health Services told him it had requested
and received his medical records from Texas, but those
records did not mention hormone replacement therapy.
Id. Mr. Caskey suggested defendants had not sent
their records request to the correct place. Id. at
pp. 8-9, ¶ 34. Defendants had Mr. Caskey fill out two
blank forms which would allow defendants to make further
requests for Mr. Caskey's medical records. Id.
at p. 9, ¶ 35.
February 23, 2017, defendants sent Mr. Caskey an Informal
Resolution Response (IRR--a response to his grievance), in
which they stated they had received Mr. Caskey's outside
medical records and were unable to verify any prescription
for Premarin. Id. at p. 4, ¶ 13.
February 28, 2017, Mr. Caskey again contacted Health Services
regarding his medical records. Id. at p. 9, ¶
36. Health Services informed Mr. Caskey that they had sent a
request for records, but no records were found. Id.
Mr. Caskey then told defendants he had used his “female
name” in Texas and they needed to request the records
under that name. Id.
Services then had Mr. Caskey sign yet another medical records
request form and sent this out. Id. at pp. 9-10,
¶ 39. However, as of July 21, 2017, defendants had not
been able to obtain any documentation that Mr. Caskey had
ever been diagnosed with GID or that he had ever been
prescribed hormone replacement therapy in connection with
GID. Id. at p. 10, ¶ 40.
Caskey was seen by Mental Health on June 8, 2017.
Id. at p. 11, ¶ 45. At that appointment, Mr.
Caskey told the mental health professional that he had been
previously diagnosed by Dr. Christopher Davidson, a Sioux
Falls psychiatrist, with GID. Id. at p. 11, ¶
then obtained Dr. Davidson's records concerning Mr.
Caskey. Those records are detailed above in connection with
Mr. Caskey's initial period of incarceration. As
discussed above, Dr. Davidson's records did not contain a
diagnosis for GID, did not contain any prescriptions for
hormone replacement therapy, and did not document any
pre-incarceration diagnosis or treatment along those lines.
response to defendants' IRR, Mr. Caskey filed a Request
for Administrative Remedy (AR) in which he continued to
maintain that he did not feel complete without taking
Premarin and requested that defendants immediately prescribe
that drug for him. Id. at p. 4, ¶ 14. He
asserted in his AR that he was transgender and by law
entitled to hormonal replacement. Id. Warden Dooley
responded to Mr. Caskey's AR by informing him defendants
had searched and could not find any substantiation in his
medical records that he was ever prescribed hormone
replacement. Id. at p. 5, ¶¶ 15-16.
Therefore, the Warden denied the grievance as per the medical
14, 2017, Defendant Brad Adams submitted an authorization
request to have Mr. Caskey evaluated by an endocrinologist
for treatment of gender dysphoria. Id. at p. 17,
¶ 70. Dr. Adams' request was denied by the medical
director because Mr. Caskey needed first to be diagnosed with
GID. Id. at p. 17-18, ¶¶ 74-76. Without
such a diagnosis, the medical director concluded, it was
premature to determine whether hormone treatment was
warranted and appropriate. Id. Defendants advised
Mr. Caskey in October, 2017, that they were in the process of
hiring a consultant to address hormone replacement requests
statewide. Id. at p. 18, ¶¶ 77-78. On
November 13, 2017, defendants advised Mr. Caskey that Dr.
Adams' request for an endocrinology appointment was being
further reviewed. Id. at p. 19, ¶ 81.
hired their GID consultant, who assumed her duties in May,
2018. Id. at p. 22, ¶¶ 94-96. However, Mr.
Caskey had already been paroled in March, 2018, so he was
never evaluated by this consultant. Id.
assert numerous instances documented in Mr. Caskey's
medical and administrative record which they believe shows
manipulation and malingering on his part. Id. at pp.
23-29, ¶¶ 97-126. These are in connection with
reports of back and neck pain, suicide threats, or attempts
to obtain medications or separate shower facilities.
Id. None of the instances ...