[News/Law] [NJ, USA] Smith v. New Jersey Department Of Corrections
Stephanie Stevens
SMITH v. NEW JERSEY DEPARTMENT OF CORRECTIONS
JAMES RANDALL SMITH, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
No. A-3303-08T2.
Superior Court of New Jersey, Appellate Division.
Submitted August 17, 2010.
Decided August 27, 2010.
James R. Smith, appellant pro se.
Paula T. Dow, Attorney General, attorney for respondent (Melissa H.
Raksa, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy
Attorney General, on the brief).
Before Judges Lihotz and Baxter.
PER CURIAM.
Appellant James R. Smith, an inmate at New Jersey State Prison serving
a forty-year sentence for kidnapping and sexual assault, appeals from
a final determination of the Department of Corrections (DOC) refusing
to diagnose appellant with gender identity disorder (GID) and provide
appropriate psychological treatment. Appellant challenges the DOC's
determination as arbitrary and capricious. We disagree and affirm.
These are the relevant facts adduced from the record. Appellant is
designated a "special needs inmate." Specifically, appellant claimed
to be a "[m]ale-to-[f]emale [t]ransgender individual" who although
"born biologically male" is "psychologically and emotionally female."
On February 13, 2008, appellant submitted an Inmate Remedy Form (IRF)
challenging a January 21, 2009 administrative memorandum declining
appellant's request to be classified with a GID. Appellant sought
reconsideration of this decision, requesting the notes of Keasha
Baldwin, L.C.S.W., be reviewed and that a second evaluation regarding
the asserted GID condition be conducted.
Appellant maintains the initial request for a GID classification was
made to psychiatrist, Michael Jordan, M.D., on June 12, 2007, who
refused. Thereafter, beginning December 13, 2007 and continuing at
subsequent two-week intervals, appellant asked Baldwin whether surgery
and hormone treatments would be provided. Appellant's written request
to DOC Lead Psychologist, Flora DeFilippo, sought hormone therapy
along with female clothing and amenities. Baldwin advised appellant
would neither be diagnosed nor treated for GID stating "it would be
better if you just forget about it." Baldwin's response prompted
appellant's submittal of the IRF.
The February 25, 2008 response to the IRF denied appellant's request,
stating: "Inmate has refused to discuss this with treating
psychiatrist. [Inmate] must talk to her — based on evaluation we will
recommend an appropriate course of action." Appellant filed an
administrative appeal, stating conversations with the psychiatrist
were prohibited due to a "lack of privacy and confidentiality" as a
unit officer "sits nearby" during the sessions and the unit microphone
records all conversations. Appellant acknowledged a failure to discuss
the issues during the psychiatric and counseling sessions because of a
desire for more "priva[cy]" and to be in a "secure setting" beyond
earshot of the unit officer and other inmates. The State Prison
Administrator denied the appeal on March 4, 2008, stating appellant
must comply with the designated treatment plan.
Thereafter, appellant's treating psychiatrist, Dr. Moshkovich,
scheduled a more private session during which appellant described
feelings attributed to GID. Following the April 9, 2008 evaluation,
Dr. Moshkovich prescribed Paxil for depression. Appellant then
submitted a list of nine questions to Dr. Moshkovich, inquiring
whether the DOC would be providing treatment for GID, including
"cross-sex," estrogen and "female" hormones, women's cosmetics and
amenities, feminine hygiene products, depilatories, and castration.
Dr. Moshkovich responded negatively to each of appellant's requests.
Appellant appealed. On the DOC's motion, we remanded the matter to
allow further explanation of the IRF denial. Appellant was granted
additional psychiatric evaluations. Thereafter, the State Prison
Administrator formally responded to appellant's IRF. A January 21,
2009 memorandum stated appellant's psychological records and case
history were reviewed by State Prison Psychiatrist, Dr. Baum, who
opined appellant's records and a December 5, 2008 evaluation did not
show "two major criteria" of GID, that is, "a strong identification
with the opposite sex, and a high level of discomfort with your
body[.]" Based on these findings, the mental health department
concluded appellant failed to meet the diagnostic criteria for GID.
Finally, the Administrator related the policy that "sexual
reassignment surgery is an elective procedure and is not
provided/available to inmates[.]"
In a January 26, 2009 IRF, appellant requested an interview with Dr.
Baum. A second IRF, dated the same day, requested reconsideration of
the Administrator's determination. In response, Drs. Reeve and
Lieberman evaluated appellant on February 4, 2009. The request for
reconsideration of the Administrator's prior determination was denied.
On appeal, appellant maintains the failure to afford "private and
confidential meetings" with prison mental health professionals denied
rights guaranteed by the Eighth[ 1 ] and Fourteenth Amendments of
United States Constitution along with the right to privacy, as well as
analogous provisions of the State Constitution. Additionally,
appellant asserts the denial of mental health care for GID violates
the Eighth Amendment's prohibition against cruel and unusual
punishment, as well as the due process and equal protection clauses of
the State and Federal Constitutions.
"An appellate court ordinarily will reverse the decision of an
administrative agency only when the agency's decision is `arbitrary,
capricious or unreasonable or [] is not supported by substantial
credible evidence in the record as a whole.'" Ramirez v. Dep't of
Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Appellant argues treatment for GID is necessary "to alleviate [the]
discomfort of being trapped in a body that doesn't belong to
[appellant]." Yet, appellant has never been diagnosed with GID and
there is no evidence in this record to support appellant's contention
that he suffers from the mental health disorder. Moreover, appellant
resists the medical professionals' request to discuss these feelings
and engage in therapy designed to consider whether he experiences the
symptoms of GID, because of an overwhelming concern that someone might
be listening.
First, an observation. These contentions were not raised in the
administrative proceedings from which the appeal is filed. Generally,
we reject considerations of matters not raised below, except those
that present a question of constitutional dimension or public import
that requires resolution without initial consideration by the trial
judge. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). We
will briefly address appellant's claims.
First, notwithstanding the lack of such a diagnosis, appellant claims
his privacy was breached when Dr. Moshkovich discussed her evaluation
with her supervisors, suggesting she revealed his male-to-female GID.
Appellant then leaps to the assumption these supervising physicians
told the Housing Unit Officers, in violation of N.J.A.C. 10A:16-4.4
and with disregard of constitutional protections shielding disclosure
of medical diagnoses.
Prison inmates do not shed all fundamental protections of the
Constitution at the prison gates. See Turner v. Safley, 482 U.S. 78,
95, 107 S. Ct. 2254, 2265, 96 L. Ed. 2d 64, 83 (1987). Rather, inmates
"retain[] those [constitutional] rights that are not inconsistent with
[their] status as [] prisoner[s] or with the legitimate penological
objectives of the corrections system." Pell v. Procunier, 417 U.S.
817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974). With
regard to an inmate's right to keep confidential previously
undisclosed medical information, it follows that impingement on that
right would be permitted only to the extent a prison official's
actions were "reasonably related to legitimate penological interests."
Ibid.
This record is devoid of facts supporting appellant's contentions that
a gratuitous disclosure occurred. Dr. Moshkovich acknowledged she
discussed appellant's GID disclosure with her supervisors when
discussing her evaluation and treatment. Such discourse among the unit
psychiatrists is necessary to devise an appropriate course of
treatment for an inmate. This record reflects several doctors were
involved in appellant's mental health care. These discussions can
hardly be characterized as a breach of appellant's constitutional
right to privacy. Likewise, nothing shows the doctors then revealed
the transgender identity issue to the Housing Unit Officers. The
claims are nothing more than mere speculation and supposition and are
rejected.
Appellant next suggests breaches of his Eighth Amendment right to be
free of cruel and unusual punishment occurred when the requests for
provision of GID treatment, hormone therapy, feminine clothing and
related amenities were denied. We completely reject the suggestion
that because the mental health professionals were told by appellant of
the experienced GID symptoms, the disorder is manifest.
The denial of GID treatment was based on psychological and psychiatric
evaluations and appellant's prison record evincing appellant lacked
female gender identification. Nothing in the pre-sentence report
supports his contention he was living "as a woman." His inmate
photograph shows he has had a long-standing mustache. Prior mental
health therapy was for post-traumatic stress disorder and depression,
not GID.
We reiterate that appellant, now age thirty-three, has never been
diagnosed with GID. The prison psychiatric staff has evaluated
appellant on several occasions and concluded there is insufficient
evidence to establish the criteria to support a GID diagnosis. The DOC
continues to provide mental health treatment and encouraged appellant
to discuss feelings that will aid in future care. Its failure to
accept appellant's self-diagnosis is neither arbitrary nor capricious
and is not of constitutional dimension.
Appellant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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