                                    ___________

                                    No. 95-1613
                                    ___________

Merlin C. Long,                           *
                                          *
            Appellant,                    *
                                          *   Appeal from the United States
     v.                                   *   District Court for the
                                          *   Southern District of Iowa.
Crispus C. Nix; Sally Chandler-           *
Halford, as Director of the               *
Iowa Department of Corrections;           *
Thomas Hundley, Warden of ISP;            *
Paul W. Grossheim; Paul W.                *
Loeffelholz;                              *
                                          *
            Appellees.                    *


                                    ___________

                     Submitted:     February 23, 1996

                           Filed:
                                    ___________

Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
                               ___________

BOWMAN, Circuit Judge.



     Merlin    C.   Long   is   serving   a   life   sentence   at   the   Iowa   State
Penitentiary (ISP) for the brutal murder of a woman.            See Long v. Brewer,
253 N.W.2d 549, 551 (Iowa 1977).          He filed this 42 U.S.C. § 1983 (1994)
lawsuit against officials of the Iowa Department of Corrections seeking,
among other things, treatment for a gender-identity disorder and damages
for the defendants' alleged deliberate indifference to his gender-identity
disorder.   Based on the evidence introduced during a one-day bench trial,
the District
Court1 held that (1) the extent of Long's gender-identity disorder does not
constitute a serious medical need, (2) even if Long has a serious medical
need, the defendants were not deliberately indifferent to that need, and
(3) the defendants were entitled to qualified immunity from Long's claim
for damages.   Long v. Nix, 877 F. Supp. 1358, 1365-67 (S.D. Iowa 1995).
Long timely appeals from the judgment of the District Court, and we affirm.



                                      I.


     Long began his stay at ISP in 1964.       He arrived in full drag, but
initially prison officials refused to let him wear women's clothes.
Following a hunger strike that began shortly after his arrival, Long was
allowed to wear women's clothes and make-up on a regular basis.          This
privilege, however, was revoked in 1981 after a member of the Iowa Parole
Board complained to prison officials about Long's attire.   Since 1981 Long
repeatedly has sought permission to wear women's clothing and make-up.    ISP
officials have denied his request each time.   He also has requested hormone
therapy and sex-change surgery.    Aside from these requests, however, Long
has not sought, nor have prison health services employees ordered, any
treatment for a gender-identity disorder.      In fact, Long has repeatedly
refused to cooperate with prison psychologists and psychiatrists over the
past twenty years.   See Long, 877 F. Supp. at 1362; see also Program Review
Committee Pre-Parole Evaluation (Feb. 3, 1978); Psychiatric Consultation
(Apr. 24, 1981); Psychiatric Evaluation (Feb. 15, 1986).


     As the District Court found, Long's 1990 evaluation was unproductive
because Long presented himself in a "hostile and belligerent," "verbally
abusive and abrasive manner."     Long, 877




      1
       The Honorable Celeste F. Bremer, United States Magistrate
Judge for the Southern District of Iowa. The case was tried before
Magistrate Judge Bremer by consent of the parties pursuant to 28
U.S.C. § 636(c) (1994).

                                     -2-
F. Supp. at 1362.          During his 1991 psychological evaluation, all Long
requested was "what he deserves":            a transfer from ISP to a less structured
setting.       Id.    The psychologist concluded that "[a]t this point in time
there    are    no    psychological     or    psychiatric    issues    that   need   to   be
addressed."          Psychological Evaluation (Jan. 30, 1991).              In 1992, Long
"indicated no mental health issues or problems," and the psychologist
concluded that there were no psychological issues that needed to be
addressed.       Psychological Evaluation (Jan. 29, 1992).                  In 1993, Long
refused to participate in a psychological interview and "no meaningful
psychological report" was submitted.                Long, 877 F. Supp. at 1362.           In
contrast to Long's behavior, the record shows that prison officials have
been responsive to Long's requests for treatment when they were reasonable.
In 1982, for example, Long requested "treatment and evaluation" at the Iowa
State Medical Facility (ISMF).          ISMF Referral (Feb. 12, 1982).         His request
was granted, and he was transferred to ISMF.                Later that same year he was
transferred at his own request to a Missouri maximum security prison where
he was allowed to wear women's clothing at all times.                 In 1986 he returned
to ISP.     His complaints to a member of the medical staff at that time
"center[ed] around the fact that he will not be allowed to have the
numerous       articles   of   female    clothing    which    he   owns."     Psychiatric
Evaluation (Feb. 15, 1986).           Long, however, never has shown a continued
interest in psychiatric evaluation or treatment either for depression or
his gender-identity disorder.                "In 1994, Long [again] declined to be
interviewed for his annual psychological evaluation.                  Long explained that
he is apprehensive about meeting with ISP staff members because they are
unsympathetic and because he thinks it is unlikely that he will be
paroled."       Long, 877 F. Supp. at 1362.


        At trial, Dr. Walter O. Bockting, Ph.D., testified that Long has
developed an intense gender dysphoria.                 His report diagnosed Long as
suffering from a gender-identity disorder not otherwise specified, a sexual
disorder not otherwise specified, and an




                                              -3-
antisocial-personality disorder.       Dr. Bockting concluded that Long has
other emotional problems in addition to his gender-identity disorder,
stating that tests indicated that Long "may be demanding, rebellious,
hostile,    aggressive,    antisocial,      impulsive,     exhibitionistic,      and
promiscuous."    Id.   Dr. Bockting suggested that these traits result from
the dysfunctional family setting in which Long was raised.            Id.


      Several of the psychologists and psychiatrists that had worked with
Long at ISP also testified at trial.     The state's principal expert witness
was Dr. Paul W. Loeffelholz, M.D.     For the most part, Dr. Loeffelholz did
not disagree with Dr. Bockting's diagnoses.        As the District Court noted,
however, the diagnoses were in conflict on some points.            See id. at 1365-
66.   The main disagreement between the experts was whether Long's gender-
identity disorder is his predominate psychiatric condition.            Dr. Bockting
stated that Long's primary psychiatric condition is his gender-identity
disorder.   Dr. Loeffelholz testified that Long's gender-identity disorder
is intermittent and generally exhibited when Long is under stress, while
his   "primary    psychological   problem    is   his    serious    antisocial   and
manipulative behavior."      Id. at 1363.         At bottom, the difference in
diagnoses turns on whether Long primarily wants to wear women's clothing
to achieve sexual arousal or to satisfy his desire to be a woman.


      Despite his opinion that Long's gender-identity disorder is Long's
principal condition, Dr. Bockting admitted that he believes that Long wears
women's clothing both to express his feminine identity and for sexual
stimulation.     Dr. Bockting concluded that, because Long experiences some
arousal, he suffers in part from paraphilia (a sexual attraction to an
unusual subject or object) and transvestic fetishism (sexual arousal from
cross-dressing).    As a result, Dr. Bockting stated that Long "does not meet
the minimal requirements that would make him eligible" for hormone therapy
or




                                      -4-
sex-change surgery.        Id. at 1362.    The experts thus agreed that Long is not
a transsexual.


        In contradistinction to their general agreement on the diagnosis, the
experts flatly disagreed about the appropriate treatment for Long's
condition.       Dr. Bockting recommended psychotherapy for Long's gender-
identity disorder combined with tranquilizers for the depression and
anxiety that has resulted from his inability to wear women's clothes.                  If
the tranquilizers prove to be ineffective, Dr. Bockting recommended that
Long be given limited opportunities to wear women's clothes to relieve his
anxiety.      Dr. Loeffelholz disagreed and noted that Long has not requested
treatment for his anxiety or depression nor has he fully cooperated with
prison psychologists so that the staff could properly respond to his
anxiety or depression, let alone his gender-identity disorder.


        The   District     Court   found   that   Dr.   Loeffelholz   had    refused   to
prescribe tranquilizers "[i]n spite of Dr. Bockting's recommendation."                 Id.
at 1363.       The District Court nonetheless found that Dr. Loeffelholz's
refusal was based on a difference in professional judgment.                 Id. at 1363,
1366.    As a result, the court concluded that "[Dr.] Loeffelholz did not act
with deliberate indifference to Long's allegedly serious medical need" and
that the other defendants "were justified in relying on the opinions of
medical staff."      Id.


                                            II.


        Long argues, among other things, that the District Court erred when
it held that his gender-identity disorder does not constitute a serious
medical need and that the defendants were not




                                           -5-
deliberately indifferent to his gender-identity disorder.2       Furthermore,
Long argues that both the District Court's findings of fact and its
conclusions of law are subject to de novo review "in light of the societal
values underlying the relevant legal concepts."       Appellant's Brief at 2
(citing Falls v. Nesbitt, 966 F.2d 375, 377 (8th Cir. 1992)).          We first
address the standard of review.


                                       A.


     In Nesbitt, we stated that "[m]ixed questions of law and fact that
require the consideration of legal concepts and involve the exercise of
judgment about the values underlying legal principles are reviewable de
novo."       Id.   While we believe that the term "mixed question of law and
fact" is confusing and best discarded, Nesbitt cannot be read to permit the
de novo review of the factual findings of a district court.        First, in
Nesbitt, the "operative facts" were "not in dispute."    Id. at 376.    Second,
we began our discussion of the standard of review by stating that "[t]he
trial judge's findings of fact will not be set aside unless they are found
to be `clearly erroneous.'"       Id. at 377 (quoting Fed. R. Civ. P. 52(a)).
The language cited by Long thus stands for the unremarkable proposition
that a legal conclusion drawn from established facts is subject to de novo
review.       Despite Long's invitation, we decline to subject the District
Court's findings of fact in this case to de novo review.        As usual, we
review the factual findings of the District Court for clear error and its
legal conclusions de novo.     See, e.g., Little Rock School Dist. v. Pulaski
County Special School Dist., #1, Nos. 95-1481 & 95-1482, slip op. at 8 (8th
Cir. May 15, 1996); Williams v. Carter, 76 F.3d




         2
      Because we agree with the District Court's conclusion that
the prison officials did not act with deliberate indifference to
Long's gender-identity disorder, we need not and do not address his
arguments regarding the prison officials' entitlement to qualified
immunity.

                                       -6-
199, 200 (8th Cir. 1996) (per curiam); see also Ornelas v. United States,
No. 95-5257, 1996 WL 276414 at *6 (U.S. May 28, 1996) (historical facts
reviewed "only for clear error" but legal conclusions such as "reasonable
suspicion" and "probable cause" reviewed de novo).               After reviewing the
trial transcript and the documentary evidence, we conclude that the
relevant factual findings of the District Court, as outlined above, are not
clearly erroneous.


                                            B.


     Turning to the merits of Long's legal arguments, we conclude that he
failed       to   prove   that    the   prison    officials   acted   with   deliberate
indifference.       Deliberate indifference to the serious medical needs of a
prisoner constitutes cruel and unusual punishment, Estelle v. Gamble, 429
U.S. 97, 102-03 (1976), and the Constitution prohibits state governments
from inflicting such punishments, Louisiana ex rel. Francis v. Resweber,
329 U.S. 459, 463 (1947) (stating that Due Process Clause of Fourteenth
Amendment incorporates Eighth Amendment's guarantee against cruel and
unusual punishment).             We assume without deciding that Long's gender-
identity disorder constitutes a serious medical need for the purposes of
this case.3


     "A prison official exhibits deliberate indifference when the official
actually `knows of and disregards' a prisoner's serious medical needs."
Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (quoting Farmer v. Brennan,
114 S. Ct. 1970, 1977, 1979 (1994)).




         3
       A psychological disorder may constitute a serious medical
need. White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988). We
have held that transsexualism is a serious medical need, id.,
though that holding may be in doubt in light of Farmer v. Brennan,
114 S. Ct. 1970 (1994), and subsequent cases. It is undisputed in
this case, however, that Long is not a transsexual, and thus White
does not control the resolution of whether Long's gender-identity
disorder is a serious medical need.

                                            -7-
Thus,       the failure to treat a medical condition does not constitute
punishment within the meaning of the Eighth Amendment unless prison
officials knew that the condition created an excessive risk to the inmate's
health and then failed to act on that knowledge.          Moreover, nothing in the
Eighth Amendment prevents prison doctors from exercising their independent
medical judgment.        White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988).
Prisoners do not have a constitutional right to any particular type of
treatment.       See id. at 327-28.   Prison officials do not violate the Eighth
Amendment when, in the exercise of their professional judgment, they refuse
to implement a prisoner's requested course of treatment.                     Kayser v.
Caspari, 16 F.3d 280, 281 (8th Cir. 1994); Taylor v. Turner, 884 F.2d 1088,
1090 (8th Cir. 1989).


        The record indicates that Dr. Loeffelholz and other members of the
prison medical staff were aware of Long's psychological problems.                  The
record, however, does not show any deliberate indifference on the part of
the   prison      officials.     Long's   expert   in   this   case,   Dr.   Bockting,
recommended an initial course of treatment that consisted of psychotherapy
and tranquilizers.      Dr. Loeffelholz did not reject psychotherapy, only the
use of tranquilizers.          In fact, the record is full of evidence of the
attempts of the prison medical staff to evaluate Long's psychological
problems and Long's refusal to cooperate.          In these circumstances, Long has
failed to prove that Dr. Loeffelholz4 was deliberately indifferent to
Long's gender-identity disorder, the only serious medical need alleged in
this case.5


        4
      We also agree with the District Court's conclusion, Long, 877
F. Supp. at 1366, that the other defendants were entitled to rely
on the opinions of the medical staff when refusing Long's requests
to cross-dress. See Heidemann v. Rother, Nos. 94-4112 & 95-1136,
slip op. at 11-12 (8th Cir. May 23, 1996).
             5
        In his Reply Brief, Long alleges that his anxiety and
depression constitute independent serious medical needs and that
cross-dressing is the appropriate treatment for these conditions.
Reply Brief at 7. This argument is not properly before us, having
been raised for the first time in Long's Reply Brief. See United
States v. Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995), cert.
denied, 116 S. Ct. 1449 (1996). The only serious psychological
need referred to in Long's amended complaint, and the alleged

                                          -8-
     To the extent that Long's claim is based on the prison officials'
failure to provide tranquilizers, it fails because it is merely a dispute
over the course of treatment.    The prison officials' decision not to treat
Long with tranquilizers is "a classic example of a matter for medical
judgment" that does not rise to the level of cruel and unusual punishment.
See Gamble, 429 U.S. at 107.     To the extent that Long's claim is based on
the prison officials' failure to provide psychotherapy, it fails because
Long consistently has refused psychological help.         It is perhaps possible
that Long would benefit from some form of therapy.           Long, however, has
resisted the attempts of Iowa prison officials to provide psychological
evaluation, treatment, and therapy over the past twenty years.           Even Dr.
Bockting   noted    that   "Long's   profile   may   be   `highly   resistant   to
psychological treatment.'"     Long, 877 F. Supp. at 1362.      We reject Long's
contention that the Eighth Amendment requires the Iowa Department of
Corrections to provide Long with a "sensitive" psychotherapist trained in
gender-identity issues.      Appellant's Brief at 14, 15.      The record shows
that the ISP medical staff is competent to diagnose inmates' medical
problems and to order treatment or further evaluation by other medical
professionals.6


     The District Court correctly stated that "[i]n essence, Long demands
the privilege of cross dressing so that he can exist in the prison on his
own terms, rather than in conformity with prison regulations."         Long, 877
F. Supp. at 1366.    Having no apparent




serious medical need on which the case was tried, is his gender-
identity disorder.
     6
     ISP employs three full-time psychologists. The psychologists
may refer a prisoner to the prison system's 46-bed licensed
psychiatric hospital or to outside facilities and specialists for
further evaluation and treatment.

                                       -9-
interest in overcoming his gender-identity disorder, Long has frustrated
the attempts of prison doctors to treat that disorder by his consistent
refusal of psychological evaluation over the past twenty years.   In these
circumstances, the District Court unquestionably was correct when it held
that Long failed to prove that the defendant prison officials have been
deliberately indifferent to his gender-identity disorder.


                                  III.


     For the reasons stated above, the judgment of the District Court is
affirmed.



     A true copy.


            Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -10-
