Case: Konitzer v. Bartow

On July 30, 2003, Plaintiff, a male inmate suffering from Gender Dysphoria ("GD") confined by the Wisconsin Department of Corrections ("DOC"), filed a civil rights action under 42 U.S.C. § 1983 in the U.S. District Court for the Eastern District of Wisconsin, Milwaukee Division. Although the complaint was originally filed pro se, Plaintiff was later represented by counsel appointed by the court. When the Third Amended Complaint was filed on July 13, 2007, Plaintiff was housed at the Wisconsin Resource Center ("WRC"), a Wisconsin Department of Health and Family Services ("DHFS") facility for inmates with mental health needs. Plaintiff named all employees and/or officials of DOC and DHFS as Defendants. Plaintiff claimed that Defendants were inadequately treating his GD in violation of the Eighth Amendment of the U.S. Constitution.

For the violation of his Eighth Amendment rights, Plaintiff sought injunctive relief for the following: (1) enjoining Defendants, their employees, agents, and successors in office from providing medical care and treatment to Plaintiff that is inconsistent with the standards of medical care and treatment for GD in the State of Wisconsin as a whole; (2) enjoining Defendants, their employees, agents, and successors in office from refusing to provide and delaying provision of necessary medical treatment and care for GID to Plaintiff either at suitable and adequate facilities within the WRC or elsewhere; (3) enjoining Defendants and their 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 Pplaintiff which is consistent with the standards of medical care in the State of Wisconsin as a whole; and (4) that the court establish a panel of independent medical experts to regularly evaluate the delivery of medical treatment and care administered to Plaintiff and insure the compliance of Defendants and their successors in office with the court's orders.

On January 17, 2006, Plaintiff filed an emergency motion for a temporary restraining order ('TRO") and preliminary injunction enjoining Defendants from stopping Plaintiff's hormonal therapy. According to Plaintiff's brief and declarations by his doctor and one of his attorneys, Plaintiff had been receiving female hormonal and anti-adrogen therapy since 1999 for treatment of GD. Plaintiff argued that Wis. Stat. § 302.386(5m), enacted on January 6, 2006, also known as the "Inmate Sex Change Prevention Act," would become effective on January 24, 2006, and that pursuant to the statute, Defendants would begin reducing Plaintiff's hormone therapy with the intention of eventually stopping it completely. The papers supporting the motion added that all of Plaintiff's endocrine functions and organ systems would be affected by cessation of the therapy. Further, they maintained that Plaintiff's depression would become more acute, blood pressure would rise and suicide ideation would accelerate. Consequently, Plaintiff concluded that the Eighth Amendment's ban on cruel and unusual punishment and the Ex Post Facto Clause of article I, section 10 of the U.S. Constitution supported injunctive relief and entry of an order barring Defendants from terminating Plaintiff's hormonal therapy.

On January 20, 2006, in an unpublished order, Judge Charles N. Clevert, Jr. granted Plaintiff's motion for preliminary injunction.

On February 08, 2008, Defendants filed a motion for partial summary judgment. On March 31, 2010, Judge Clevert granted in part and denied in part Defendants' motion for partial summary judgment. Judge Clevert further ordered that Plaintiff's request that only female correctional officers conduct any future strip searches of Plaintiff was denied. In a decision issued on May 10, 2010, Judge Clevert concluded that no reasonable jury could find that Defendants had been deliberately indifferent to Plaintiff's medical needs in regard to strip searches, and therefore summary judgment was granted as to this issue; however, as to all other issues raised in Defendants' summary judgment motion, summary judgment was denied.

In July 2010, Judge Clevert referred the case to Magistrate Judge Patricia J. Gorence for mediation. On December 27, 2010, Judge Clevert approved the parties' Settlement Agreement which provides, among other things, DOC will continue Plaintiff's hormone therapy consistent with state law, unless such therapy is medically contraindicated or the plaintiff agrees to the cessation of such therapy. On the same day, the court also denied Plaintiff's motion to reopen the case and dismissed the case.

Plaintiff appealed the District Court's grant of partial summary judgment to the Seventh Circuit as a pro se appellant. However, because Plaintiff failed to pay the required docketing fee within the statutory period, the appeal was dismissed on June 02, 2011.