August 27, 2010
JAMES RANDALL SMITH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Lihotz and Baxter.
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*fn1 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).