                                                                                    FILED
                                                                        United States Court of Appeals
                                            PUBLISH                             Tenth Circuit

                       UNITED STATES COURT OF APPEALS                          August 15, 2018

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

MICHELLE RENEE LAMB, a/k/a
Thomas Lamb,

      Plaintiff - Appellant,

v.                                                            No. 17-3171
                                                 (D.C. No. 5:16-CV-03077-EFM-DJW)
JOE NORWOOD; JOHNNIE GODDARD;                                  (D. Kan.)
PAUL CORBIER; KANSAS
DEPARTMENT OF CORRECTIONS;
CORIZON HEALTH SERVICES,

      Defendants - Appellees.
                      _________________________________

                                      ORDER
                         _________________________________

Before BACHARACH, McKAY, and BALDOCK, Circuit Judges.
                 _________________________________

       Plaintiff-Appellant Michelle Renee Lamb has filed a petition for rehearing en

banc. The panel has sua sponte decided to grant panel rehearing in part and only to the

limited extent reflected in the amendments made to the attached revised opinion. Any

request for panel rehearing is otherwise denied. The clerk is directed to file the new

opinion effective the date of this order.

       The petition for rehearing en banc was also circulated to all the members of the

court in regular active service who are not otherwise disqualified. See Fed. R. App. P.
46(a). As no judge on the original panel or the en banc court called for a poll, the request

for en banc reconsideration is denied.

       The American Civil Liberties Union (ACLU), The ACLU of Kansas, Lambda

Legal Defense and Education Fund, Inc., The National Center for Transgender Equality,

and Transcend Legal also filed a motion for leave to file an amicus brief. The motion for

leave to file an amicus brief is granted. The clerk is directed to file the proposed brief

submitted with the motion effective the date of the original submission.



                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




                                              2
                                                                          FILED
                                                              United States Court of Appeals
                                   PUBLISH                            Tenth Circuit

                 UNITED STATES COURT OF APPEALS                       August 15, 2018

                                                                 Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT                        Clerk of Court
                        _________________________________

MICHELLE RENEE LAMB, a/k/a
Thomas Lamb,

       Plaintiff - Appellant,

v.                                                      No. 17-3171

JOE NORWOOD; JOHNNIE
GODDARD; PAUL CORBIER;
KANSAS DEPARTMENT OF
CORRECTIONS; CORIZON
HEALTH SERVICES,

       Defendants - Appellees.
                    _________________________________

               Appeal from the United States District Court
                        for the District of Kansas
                  (D.C. No. 5:16-CV-03077-EFM-DJW)
                    _________________________________

Submitted on the briefs * :

Michelle Renee Lamb a/k/a Thomas Lamb, pro se.

Dwight R. Carswell, Assistant Solicitor General, Bryan C. Clark, Assistant
Solicitor General, and Rachael D. Longhofer, Assistant Attorney General,
Office of Attorney General for the State of Kansas, Topeka, Kansas, for
Defendants–Appellees Joe Norwood, Johnnie Goddard, and the Kansas
Department of Corrections; Casey L. Walker and Trevin Erik Wray,

*
     The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. Thus, we have decided the
appeal based on the briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G).
Simpson, Logback, Lynch, Norris, P.A., Overland Park, Kansas, for
Defendant–Appellee Paul Corbier; and Jeffrey T. Donoho and Roger W.
Slead, Horn Aylward & Bandy, LLC, Kansas City, Missouri, for
Defendant–Appellee Corizon Health Services.
                   _________________________________

Before BACHARACH, McKAY, and BALDOCK, Circuit Judges.
               _________________________________

BACHARACH, Circuit Judge.
               _________________________________

      Michelle Renee Lamb was born a male. From a young age, however,

Michelle displayed feminine characteristics and identified as a female.

Michelle is now in state prison and is experiencing gender dysphoria. For

this condition, she is receiving medical treatment, though she claims that

the treatment is so poor that it violates the Eighth Amendment. For this

claim, Michelle must show that prison officials have acted with deliberate

indifference to her gender dysphoria. 1

      The undisputed evidence shows that Michelle is receiving hormone

treatment, testosterone-blocking medication, and weekly counseling

sessions. A 1986 precedent, Supre v. Ricketts, 752 F.2d 958

(10th Cir. 1986), suggests that these forms of treatment would preclude

liability for an Eighth Amendment violation. Based partly on this

precedent, the district court granted summary judgment to the prison



1
     See Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir.
1999).

                                      2
officials. Michelle challenges the grant of summary judgment, and we

affirm.

1.    What is gender dysphoria and how is it treated?

      To address Michelle’s appeal, we must consider what gender

dysphoria is and consider the available forms of treatment. The term

“[g]ender dysphoria describes the psychological distress caused by

identifying with the sex opposite to the one assigned at birth.” 2 Treatment

forms currently include

          [c]hanges in gender expression and role (which may
           involve living part time or full time in another
           gender role, consistent with one’s gender identity);

          [h]ormone therapy to feminize or masculinize the
           body;

          [s]urgery to change primary and/or secondary sex
           characteristics (e.g., breasts/chest, external and/or
           internal genitalia, facial features, body contouring);

          [p]sychotherapy (individual, family, or group) for
           purposes such as exploring gender identity, role,
           and expression; addressing the negative impact of
           gender dysphoria and stigma on mental health;
           alleviating internalized transphobia; enhancing
           social and peer support; improving body image; and
           promoting resilience. 3


2
      Sven C. Mueller, et al., Transgender Research in the 21st Century: A
Selective Critical Review from a Neurocognitive Perspective, 174 Am. J.
Psychiatry 1155, 1155 (2017).
3
     E. Coleman et al., Standards of Care for the Health of Transsexual,
Transgender, & Gender-Nonconforming People, Version 7, 13 Int’l J.

                                      3
2.    What are the applicable legal tests?

      To determine whether the prison’s treatment for Michelle’s gender

dysphoria was constitutionally adequate, we consider the constitutional

test, the standard for summary judgment, and our standard of review.

      The Eighth Amendment prohibits officials from acting with

deliberate indifference to a prisoner’s serious medical need. 4 The

seriousness of Michelle’s medical need is uncontested for purposes of

summary judgment. Thus, the only substantive issue is whether the existing

treatment constituted deliberate indifference to Michelle’s gender

dysphoria.

      This issue arose in summary judgment proceedings. To obtain

summary judgment, the prison officials needed to show the absence of a

genuine dispute of material fact and their entitlement to judgment as a

matter of law. 5 In considering the district court’s application of the

summary judgment test, we engage in de novo review. 6



Transgenderism 165, 171 (2011); see R., Doc. 43-1 (Decl. of Dr. Randi C.
Ettner at 5–6 ¶ 23).
4
      Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999).
5
      Fed. R. Civ. P. 56(a).
6
      Rife v. Okla. Dep’t of Pub. Safety, 854 F.3d 637, 643 (10th Cir.),
cert. denied, 138 S. Ct. 364 (2017).

                                       4
3.    What does our 1986 precedent say?

      As noted above, we addressed a similar issue in 1986, when we

issued Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986). 7 There an inmate

with gender dysphoria claimed violation of the Eighth Amendment based

on a refusal to provide estrogen therapy. We concluded that the treatment

did not violate the Eighth Amendment, reasoning that the state’s

department of corrections had made an informed judgment about treatment

options in the face of disagreement within the medical community. 8

4.    Do subsequent medical advances render Supre obsolete?

      Strictly speaking, Supre does not answer our question. There the

claim involved denial of estrogen therapy, and Michelle is not complaining

about a lack of estrogen therapy. She wants other forms of treatment,

including greater doses of hormones and authorization for surgery. But if

the Eighth Amendment was not violated by the denial of estrogen therapy,

it stands to reason that Michelle’s current treatment methods do not

constitute deliberate indifference.

      Michelle’s rejoinder is that Supre is too old to provide guidance

because it rested on outdated medical assumptions. As Michelle points out,


7
     Less than two months before issuance of the opinion in Supre,
Michelle lost a similar suit on summary judgment. Lamb v. Maschner, 633
F. Supp. 351 (D. Kan. 1986).
8
      Supre, 792 F.2d at 963.

                                      5
science has advanced since 1986, resulting in new forms of treatment for

gender dysphoria. 9 But even if we were to reconsider our earlier medical

assumptions, Supre would continue to provide our analytical framework.

5.    Does the existing treatment of Michelle constitute deliberate
      indifference?

      Under this analytical framework, we conclude that the summary

judgment record does not contain any evidence of deliberate indifference

to Michelle’s treatment needs.

      We have consistently held that prison officials do not act with

deliberate indifference when they provide medical treatment even if it is

subpar or different from what the inmate wants. 10 These holdings apply

here because Michelle is obtaining psychological counseling and hormone

treatments, including estrogen and testosterone-blocking medication.

Though prison officials have not authorized surgery or the hormone

dosages that Michelle wants, the combination of the existing treatment and

sparseness of the summary judgment record precludes a reasonable fact-

finder from inferring deliberate indifference.

9
      See Tim C. van de Grift et al., Surgical Satisfaction, Quality of Life,
& Their Association After Gender-Affirming Surgery: A Follow-Up Study,
44 J. of Sex & Marital Therapy 138, 139 (2018) (“In the past decades,
(surgical) care for people diagnosed with gender dysphoria is increasingly
provided in specialized, interdisciplinary health-care facilities following
the Standards of Care.”)
10
      Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999).


                                      6
      Paul Corbier, M.D. stated under oath that Michelle’s existing

treatment has proven beneficial and that surgery is impractical and

unnecessary in light of the availability and effectiveness of more

conservative therapies. Though Michelle disagrees with Dr. Corbier’s

opinion, the disagreement alone cannot create a reasonable inference of

deliberate indifference. And even if Dr. Corbier had been wrong, prison

officials could not have been deliberately indifferent by implementing the

course of treatment recommended by a licensed medical doctor like

Dr. Corbier. 11

      Michelle questions Dr. Corbier’s opinion based on a case in Tax

Court, O’Donnabhain v. Commissioner of Internal Revenue, 134 T.C. 34

(T.C. 2010). There the Tax Court held that expenses for hormone therapy

and sex reassignment surgery constituted expenses for medical care,

triggering a deduction under the Tax Code. 12 But Tax Court opinions do not

bind our court. And O’Donnabhain bears little relevance to our issue

because the prison officials have not questioned the medical nature of

hormone therapy or sex reassignment surgery. Instead, the prison officials


11
       See Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir. 2014) (stating that
even if sex reassignment surgery were the only medically adequate
treatment for gender identity disorder, an Eighth Amendment violation
would have taken place only if prison officials knew or should have known
this fact and failed to appropriately respond).
12
      134 T.C. at 77.

                                     7
contend only that they could not have been deliberately indifferent by

providing hormone therapy and psychological counseling.

      In our view, the summary judgment record precludes a reasonable

fact-finder from inferring deliberate indifference.

6.    Did the district court erroneously restrict discovery?

      Michelle also raises procedural challenges involving discovery.

These challenges stem from the district court’s order for an investigative

report.

      Under the Prison Litigation Reform Act, the district court had to

screen the amended complaint to determine whether it was frivolous,

malicious, failed to state a claim on which relief could be granted, or

triggered the defendants’ immunities from monetary relief. 13 To facilitate

this screening process, district courts in our circuit frequently require

investigative reports and stay discovery until the filing of these reports.

      The district court followed this process here, requiring an

investigative report and staying discovery until the report was filed. Prison

officials filed the report and sought summary judgment at the same time.

With the filing of the report, the stay automatically terminated and

Michelle was free to conduct discovery.




13
      28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)–(b); 42 U.S.C. § 1997e(c)(1).

                                       8
      One month later, the defendants moved to stay further discovery until

the district court ruled on the summary judgment motion. The motion for a

stay remained pending for roughly six months. During this period,

Michelle was free to conduct discovery. But she apparently thought that

the defendants’ motion for a stay automatically curtailed discovery. It

didn’t.

      Michelle also seems to have misunderstood the impact of the

investigative report. The report concluded that Michelle’s treatment was

acceptable; Michelle disagreed and moved for an order requiring prison

officials to supplement the report with additional documentation. The

district court overruled this motion, and Michelle challenges this ruling.

      We have little reason to question the ruling. The investigative

report’s function was to facilitate the district court’s screening process. 14

And on screening, the district court allowed the action to proceed.

      When the defendants moved for summary judgment, the investigative

report served as the equivalent of an affidavit supporting the summary

judgment motion. 15 To rebut the investigative report, Michelle was free to


14
      See Rachel v. Troutt, 820 F.3d 390, 396 (10th Cir. 2016) (“Courts
order the [investigative] report not to provide discovery, but to aid in
screening the complaint.”).
15
       See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992)
(stating that investigative reports are treated like affidavits when filed as
evidence supporting summary judgment motions).

                                       9
present her own evidence, including her own affidavit and material

obtained through discovery. Michelle did not need supplementation of the

investigative report to obtain such material. As a result, the district court

did not err in overruling Michelle’s motion to require supplementation of

the investigative report.

7.    Conclusion

      We conclude that no genuine issue of material fact exists. In light of

the prison’s treatment for Michelle’s gender dysphoria, no reasonable fact-

finder could infer deliberate indifference on the part of prison officials.

And the district court did not improperly curtail Michelle’s opportunity to

conduct discovery. Thus, we affirm the award of summary judgment to the

prison officials.

                                     * * *

      Judge Baldock concurs only in the judgment.




                                      10
