SEVENTY-SECOND ANNUAL

NATIONAL MOOT COURT COMPETITION

AMENDED RECORD ON APPEAL

SUPREME COURT OF THE UNITED STATES

October Term 2021

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Docket No. 2021-22

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MAX POSCA, Iin His Official Capacity Aas Warden and Administrator of Garum

Correctional Facility, Defendant-AppellantPetitioner

v.

LUCAS ESCOFFIER, Plaintiff-Respondent.

ACKNOWLEDGEMENTS

Special thanks to the Committee members who contributed to this year’s competi-

tion problem:

Alina Artunian

Danielle Haley

Michael Tracht

Zach Withers

Justin Giles

The Committee is grateful to Stephanie Glazer and Martha Harris for their un-

wavering support and commitment to the sound administration of our National Competi-

tion.

The Committee is also grateful to the American College of Trial Lawyers for its

continued support and commitment to our Competition.

The Committee is also grateful to Justin Bernstein (UCLA) and A.J. Bellido de

Luna (St. Mary’s University School of Law) for their assistance with technical support

for this year’s unique virtual competition.

We also thank all of our Regional Sponsors, staff, and volunteers, whose dedica-

tion and efforts are integral to the success of the National Moot Court Competition.

1

FACTS IN THE RECORD

Mr. Lucas Escoffier1 is a transgender man residing in the state of Silphium.2 He

was assigned female at birth; but in young adulthood sought help for feelings of depression

and suicidal ideation, and was eventually diagnosed with gender dysphoria on March 9,

2011. Beginning in May 2012, Mr. Escoffier began to “socially” transition, informally

changing his name to Lucas and adopting the pronouns “he”, “his”, and “him”. A year later,

he began medical gender alignment therapies and treatment for gender dysphoria. Mr. Es-

coffier responded well to social transition and hormone therapy, with marked improvement

in his outlook on life. For unrelated physical health reasons3, Mr. Escoffier had a double

mastectomy in February 2014; at that time, he also elected to seek a reconstructive ap-

proach to his surgery, allowing his chest to be more in line with his gender identity. Several

years after his surgery, Mr. Escoffier legally transitioned to his current name: Mr. Lucas

Escoffier.

While the steps—legal and medical—taken to treat his gender dysphoria had re-

sulted in some improvement to his mental health, in April 2018, Mr. Escoffier again began

to suffer from chronic depression and mild suicidal ideation related to his gender dysphoria.

After several rounds of consultation with his medical team, Mr. Escoffier and his doctor

determined that gender affirmation surgery4 was necessary to further treat his condition. In

1 “Escoffier” is phonetically pronounced “es-coffee-ey.”

2 “Silphium” is phonetically pronounced “sil-phee-um.”

3 Mr. Escoffier underwent genetic testing and was found to carry a mutation of the

BRCA1 gene that, which is linked to a significant risk of developing breast cancer. He

elected to undergo a prophylactic double mastectomy.

4 “Gender affirmation surgery,” “gender confirmation surgery,” “sex reassignment sur-

gery,” and certain other terms are used synonymously in the legal literature. For the

2

December 2019 Mr. Escoffier, with the aid of his personal doctor, Dr. Johanna Semlor,

began to contact medical providers to receive gender affirmation surgery.

Events then took a turn for Mr. Escoffier onto a path that eventually led him to this

Court. Ten days after Mr. Escoffier made the decision to surgically transition, he was ar-

rested, charged, and indicted with criminal tax fraud in the first degree and other underlying

charges; he was able to post bail.

On March 1, 2020, after negotiations with the prosecution, Mr. Escoffier pleaded

guilty to criminal tax fraud in the third degree in exchange for a lesser promised sentence

of five years. He began his period of incarceration at Garum Correctional Facility, a State

of Silphium correctional facility, on March 7, 2020.5

Shortly after Mr. Escoffier’s imprisonment began, humanity discovered a previ-

ously unknown viral disease. Dubbed “Miasmic Syndrome,” the disease was found to be

highly contagious and fatal in at least one1 percent of cases. Within a matter of months,

Miasmic Syndrome had become a pandemic. It spread globally, and by the time of Mr. Es-

coffier’s appeal, had infected hundreds of millions, and killed several million people world-

wide. As a result of the Miasmic Syndrome, federal, state, and local governments instituted

strict new regulations to support the health and safety of their communities. People were

encouraged to remain six feet apart from others, refrain from gathering in enclosed spaces,

wash hands vigorously and frequently, wear masks in public, and to quarantine as much as

purposes of this record and for the avoidance of ambiguity, the Supreme Court has

requested counsel standardize on the term “gender affirmation surgery.”

5 Any criminal appeal Mr. Escoffier has brought or will bring has no bearing on this

action.

3

possible. Nearly all businesses transitioned to remote work, with only essential staff in

person.

Prisons were hit particularly hard by Miasmic Syndrome. The congregate nature

and the high turnover rate of their population, as well as the desire to maintain a high cor-

rection-officer-to-incarcerated-person ratio created unprecedented challenges. Garum Cor-

rectional Facility—one of the largest in the country—instituted very strict policies in an

attempt to prevent the outbreak or spread of Miasmic Syndrome. First and foremost, pro-

gramming, job training, classes, and communal recreation were cancelled and inmates were

held in their cells for the majority of the day, with short periods of time to shower and a

brief period of recreation permitted with the members of a small set of adjoining cells. The

frequency of these respites varied with the severity of the Miasmic Syndrome transmission

rate within the community. In addition, individuals would be moved between quarantine

and general populations without warning, due to possible exposure or perceived symptoms.

Incarcerated people could no longer have in-person visitation. Court appearances

and essential attorney-client visits were conducted by videoconference software; but

Garum Correctional Facility had only five computers for this purpose. With Garum Cor-

rectional Facility housing the entire incarcerated population of Silphium state, both pre-

trial and post-conviction, these appointments were in high demand. It was not uncommon

for videoconferences to be booked out for more than three weeks at a time. Access to com-

4

munal phones was curtailed and only available via appointment made through the correc-

tions staff.6 Reductions in corrections staff resulted in many missed phone call appoint-

ments, and prisoners would often go weeks without being able to contact family, friends,

or attorneys.

Although access to medical facilities was also curtailed due to the pandemic,

Mr. Escoffier was permitted to continue his hormone replacement therapy while within the

Garum Correctional Facility. However, his mental health began to drastically decline fol-

lowing incarceration. He began to experience serious depression, bouts of weight and hair

loss, loss of appetite, severe anxiety and paranoia, and perpetual suicidal ideation. Recog-

nizing these as symptoms of his gender dysphoria, Mr. Escoffier informed staff at the

Garum facility that his condition was becoming intolerable and that he required gender

affirmation surgery, as he had intended to undergo prior to his incarceration. He sought

gender affirmation surgery and filed requests to meet with the Garum Correctional Facility

psychiatrist, Dr. Arthur Chewtes. Mr. Escoffier met with Dr. Chewtes to discuss his avail-

able options to treat his gender dysphoria.

Medical professionals at the Garum Correctional Facility, including Dr. Chewtes,

informed Mr. Escoffier that the policy at the facility prohibited any gender affirmation

surgery. See App’x A. The policy was created by a committee reporting to the warden,

Max Posca, and chaired by the Director of the Health Division at Garum, Dr. Erica L.

6 While prison phone calls are typically recorded, Garum Correctional Facility did have

a policy by which attorneys were able to register their phone number to a “Do Not

Record” list in order to facilitate attorney-client conversations without the need for

prison staff to schedule more private accommodations. The Garum prison phone sys-

tem does not use the collect call system.

5

Laridum. It forbade any surgical intervention for the treatment of gender dysphoria. Ac-

cordingly, the warden denied Mr. Escoffier’s requests. Mr. Escoffier submitted several

rounds of grievances to the Garum Correctional Facility Medical Department and the Cor-

rectional Facility itself. Each of his grievances underwent an investigation and a subsequent

administrative review, and each was ultimately denied on the basis of the policy prohibiting

gender affirmation surgery. Mr. Escoffier continued to appeal the denial within the prison

medical system. On September 15, 2020; the medical staff at Garum Correctional Facility

alerted Mr. Escoffier that his final request was denied.

Mr. Escoffier reached out to a local law firm, Forme Cury, to seek their assistance

in bringing a civil rights lawsuit against the prison for denying him gender affirmation

surgery as a violation of his Eighth Amendment rights. Forme Cury is a medium-size local

firm focused on civil litigation, with approximately 25 attorneys and 40 working staff

members (including secretaries, legal assistants, paralegals, docketing staff, and filing

room staff). Mr. Escoffier’s case was taken on by the firm pro bono; and was assigned to

Ms. Sami Pegge.7 Ms. Pegge was a senior associate who had informally specialized in

prison litigation at the firm. Ms. Pegge handled the cases of almost all of the firm’s incar-

cerated clients.

On October 5, 2020, on behalf of Mr. Escoffier, Ms. Pegge filed suit against the

prison warden, Max Posca, as administrator ofand the Garum Correctional Facility, under

42 U.S.C. § 1983, alleging that Garum Correctional Facility violated Mr. Escoffier’s

Eighth Amendment rights by imposing an unconstitutional blanket ban against gender af-

firmation surgery and denying Mr. Escoffier the surgery he alleged he needed to properly

7 “Pegge” is phonetically pronounced “Peggy.”

6

treat his gender dysphoria. In a response filed on October 25, 2020, Warden Posca moved

to dismiss the complaint on the basis that the prison’s policy was a blanket ban that did not

specifically target Mr. Escoffier and that previous blanket policies had been held constitu-

tional. Finding that all necessary facts were available to the court through materials sub-

mitted with the parties’ briefing, the District Court of Silphium converted the Defendant’s

motion to dismiss into a motion for summary judgment.8 The district court found that there

were no genuine issues of material fact and ruled in favor of Defendant, dismissing the

action on February 1, 2021.

Mr. Escoffier was able to speak with Ms. Pegge shortly after the decision, and con-

firmed that Forme Cury would be continuing to represent Mr. Escoffier in the appeal. Ms.

Pegge alerted Mr. Escoffier that she would be in touch – they would continue to build the

case, and she would need to get Mr. Escoffier’s signature on “some documents” by “early

March.” Unfortunately, shortly after this conversation, Ms. Pegge abruptly contracted a

severe form of the Miasmic Syndrome, requiring immediate hospitalization and several

days of intense ventilator treatment. While Ms. Pegge did ultimately make a full recovery,

she was out of work for well over two weeks, and had spent much of that time in the hos-

pital with limited functionality. During the time that Ms. Pegge was not working, no one

from Forme Cury reached out to Mr. Escoffier. Nor were any of Ms. Pegge’s matters

properly transitioned to other members of the firm: though he she left a note with his her

8 The District Court of Silphium is subject to the standard Federal Rules of Civil Proce-

dure, Federal Rules of Appellate Procedure, and the Federal Rules of Criminal Proce-

dure. The State of Silphium has adopted the Model Rules of Professional Conduct as

prescribed by the American Bar Association. Despite the global pandemic, this juris-

diction did not issue any emergency orders or local rules that would otherwise stay or

continue any case-related deadlines.

7

legal assistant to transition “all of his inmate matters” to another associate at the firm, Mr.

Escoffier’s case (as well as a few other cases that Ms. Pegge was responsible for) was not

properly calendared. Ms. Pegge recovered enough to come back to work on March 12,

2021.

During that time, Mr. Escoffier tried to contact Ms. Pegge. However, because of

the stringent rules and limitations on inmates at Garum, he was only able to call

Ms. Pegge’s direct office line three times during the entirety of February 2021 (without

reaching anyone), and left her one voice message. Additionally, because of new policies

curtailing the use of any of the prison’s facilities, including the library, Mr. Escoffier had

only one opportunity to use the computer to look up Ms. Pegge’s law firm. On March 1,

2021, Mr. Escoffier was able to send one e-mail to the firm’s general inbox located on the

Forme Cury “Contact Us” page, stating: “Please help me on my appeal, I cannot reach

Ms. Pegge.” On March 2, another associate at Forme Curry, Mr. Hami Sharafi, was able to

call and speak with Mr. Escoffier. During this call, Mr. Sharafi informed him that

Ms. Pegge was hospitalized and that Mr. Sharafi was not familiar with Mr. Escoffier’s case.

Mr. Sharafi also told him that since Mr. Escoffier did not have any attorney to help him,

Mr. Escoffier would need to submit his Notice of Appeal to the prison mailbox on his own

immediately. Mr. Escoffier put the Notice of aAppeal in the legal prison mailbox on

March 2, 2021, along with a and filledcompleted out and submitted the requisiteprison

mailing forms on that day. See App’x F.

Due to the delays caused in part by the Miasmic Syndrome Pandemic, the Garum

Correctional Facility did not mail the appeal to the district court until March 7, 2021. The

district court received the Notice of Appeal on March 10, 2021.

8

PROCEDURAL HISTORY OF THE PRESENT ACTION

Plaintiff filed a civil action under 42 U.S.C. § 1983 against the warden of Garum

Correctional Facility, Max Posca, on October 5, 2020, alleging that Posca violated his

Eighth Amendment rights by enforcing an unconstitutional ban against gender affirmation

surgery and denying him his necessary medical transition surgery. On October 25, 2020,

Defendant moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).

The District Court of Silphium converted the motion to dismiss into a motion for summary

judgment and granted dismissal on February 1, 2021, finding that there are no genuine

issues of material fact and all necessary evidence is on the record.

Plaintiff personally mailed his Notice of Appeal to the district court on March 2,

2021. The Notice of Appeal was received by the district court and “filed” on March 10,

2021. The Fourteenth Circuit analyzed two questions:

1. Can Plaintiff, an incarcerated individual represented by counsel, take ad-

vantage of the prison mailbox rule as it relates to his Notice of Appeal under

Federal Rule of Appellate Procedure 4, where Plaintiff’s counsel was tem-

porarily incapacitated at the time of submission?

2. Is a blanket ban prohibiting gender affirmation surgery at Garum Correc-

tional Facility an unconstitutional violation of an inmate’s Eighth Amend-

ment right to be free of cruel and unusual punishment?

On August 15, 2021 Fourteenth Circuit reversed the decision of the district court,

finding that:

1. Plaintiff’s Notice of Appeal is timely under the prison mailbox rule, which

can be applied to incarcerated individuals otherwise represented by counsel;

and

2. The Garum Correctional Facility’s blanket ban prohibiting gender affirma-

tion surgery is a violation of Plaintiff’s Eighth Amendment rights.

9

Defendant Warden Posca petitioned the United States Supreme Court for a writ of

certiorari on August 15, 2021. The Supreme Court granted certiorari on September 22,

2021.

10

APPENDIX A

Garum Correctional Facility Medical Policy Handbook (Excerpted)

Approved:

1. Erica L. Laridum, MD, PhD, Division of Health Director

2. Max Posca, Warden and Administrator

Date: 8/16/19

Section B-1 – RESPONSIBILITIES AND AUTHORITIES

I. The Administrator has overall authority for the operations and safety of the Facility. The

divisions of Custody and Health both report to the Administrator.

II. Division of Custody is directly responsible for the safety, housing, order, and discipline

of all inmates housed at the Facility.

III. Division of Health is directly responsible for the medical and mental health care of all

inmates housed at the Facility.

Section G-33.8 - TREATMENT OF INMATES WITH GENDER DYSPHORIA

I. EVALUATION OF GD.

A. An inmate with documented or claimed GD will promptly receive a comprehen-

sive physical and mental health evaluation.

1. Mental Health evaluation will be conducted by a qualified mental health

professional (QMHP). If conducted by a non-psychiatrist, the evaluation

and any supporting information must be reviewed by a psychiatrist. Only a

licensed psychiatrist may make the diagnosis of GD.

2. Medical evaluation will include a thorough history and complete physical

examination.

B. A concerted effort will be made to expeditiously obtain the inmate’s pre-deten-

tion medical and mental health records.

C. Notwithstanding any pre-detention diagnosis of GD the inmate may have re-

ceived, only those patients diagnosed with GD by a Health psychiatrist will be

deemed as GD patients under this policy.

11

II. TREATMENT OF GD.

A. Mental health counseling will be offered.

B. Hormone therapy shall be made available to the inmate if indicated by current,

accepted standards of care. If hormone therapy is indicated, such therapy will be

prescribed and monitored by a medical provider competent in such therapy. Divi-

sion of Health will have final authority over the inmate’s clinical plan of care.

C. If the inmate’s provider recommends adjustments to the inmate’s housing and/or

privileges as part of the inmate’s plan of care for GD, Custody will consider those

adjustments on a case-by-case basis. Custody will have final authority over the In-

mate’s housing and privileges.

D. Surgical interventions are not provided for GD.

Section M-10: Medical Grievances.

A. An inmate may file a grievance to the Division of Health, appealing the denial

of clinical services.

B. Grievances will initially be reviewed by the supervising clinician in the licensure

relevant to the inmate’s grievance.

C. If a grievance is rejected by the supervising clinician, the inmate may appeal the

grievance to the Director of the Division of Health.

D. If the appealed grievance is rejected by the Director, the inmate may appeal the

grievance to the Administrator.

E. If a grievance is granted, the inmate may be granted the service requested, pro-

vided that:

1. No licensed clinician may be ordered to conducted licensed services, by

a person who does not hold appropriate clinical licensure to make such or-

ders, and

2. Nothing in this grievance process shall be read to entitle any inmate to

services not ordinarily available, or to require any grievance reviewer to

grant any grievance

12

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SILPHIUM

LUCAS ESCOFFIER,

Plaintiff,

v.

MAX POSCA, iIn His Official Capacity

Aas Warden and Administrator of Garum

Correctional Facility,

Defendant.

No. 21-cv-916

DECLARATION OF ERICA L.

LARIDUM, M.D., Ph.D.

Erica L. Laridum declares under penalty of perjury pursuant to 28 U.S.C. § 1746:

1. I submit this declaration, based on my personal knowledge except as other-

wise indicated, and could competently testify to its contents if called to do so.

2. I submit this declaration to describe the process by which the policy regard-

ing treatment of inmates with gender dysphoria at Garum Correctional Facility (“Garum”)

was created.

3. I am a board-certified physician, licensed to practice medicine in this State

since 1989. I completed my residency in internal medicine at Hope State Hospital, and

have remained at Hope State ever since, becoming its Chief Physician in the hospital’s

Department of Internal Medicine in 2009. I received my M.D. and a Ph.D. in microbiology

from the University of Copacan in 1986.

4. In early 2019, I was asked to take on a temporary role in the Division of

Health Director of Garum Correctional Facility, in which I would assemble and chair a

committee charged with reviewing the inmate-care standards in Garum. When the review

13

was complete, the committee was to recommend any changes to the Garum Medical Policy

Handbook.

5. Max Posca, as administrator of Garum, attended committee meetings ex of-

ficio, but had no influence (nor a vote) on questions of medical treatment. Rather, his role

was to provide information requested by the committee, and to formally approve the Hand-

book once the committee had done so.

6. To assemble the remainder of the 15-person committee, I contacted experi-

enced physicians from throughout Silphium, recruiting some with broad practices like my

own, and others with more specialized, yet fairly high-volume practices. None of the com-

mittee members then held, or had previously held, any elected office, and I did not consider

any questions of the other doctors’ political opinions before I invited them to serve on the

committee.

7. Among the committee members was Dr. Arthur Chewtes, the supervising

psychiatrist at Garum Correctional Facility, who represented to me that he has more than

20 years of experience in psychiatry, and said during committee discussions that he has

treated approximately 100 patients with gender dysphoria in his career, 6 of whom he was

currently treating from among the inmates at Garum. I believe Dr. Chewtes has treated

Mr. Escoffier for gender dysphoria since Mr. Escoffier was incarcerated at Garum, and that

he did diagnose Mr. Escoffier with gender dysphoria, agreeing with a previous diagnosis.

8. Other members of the committee, as I believe to be relevant here were

Dr. Bergamot, a general surgeon who has practiced since 1990; Dr. Cordata, who special-

izes in endocrinology, and has practiced since 1992; and Dr. Mitsuba, a plastic surgeon,

who specializes in reconstructive procedures, and has practiced since 1988.

14

9. To develop the treatment plan for inmates with gender dysphoria, Dr. Chew-

tes directed the committee to the Standards of Care for the Health of Transsexual,

Transgender, and Gender Nonconforming People, published by the World Professional As-

sociation for Transgender Health (“WPATH”), which was last revised in 2012. I believe

the WPATH Standards to be the most widely used standards for transgender healthcare in

the United States.

10. The committee carefully considered the several treatment options included

in the WPATH Standards for consideration by providers for each patient. Though the stand-

ards do include consideration of surgical interventions, Dr. Cordata opined that such sur-

geries were never medically necessary for treatment of gender dysphoria, given the many

options available to treat the condition. Dr. Cordata confirmed with Dr. Chewtes that ad-

ministration of hormonal therapies is a common, well-tolerated treatment, and Dr. Chewtes

also noted the effectiveness of hormonal therapies when combined with other non-surgical

interventions, such as psychotherapy and gender-affirming social interventions. However,

Dr. Chewtes alerted the rest of the committee that precluding sex reassignment surgery was

counter to the WPATH Standards, and that research had shown sex reassignment surgery

did provide patients with significant relief from their gender dysphoria.

11. The committee discussed the matter for around an hour that day, as well as

for around half an hour the next morning, at which point the committee unanimously voted

to preclude sex reassignment surgery from Garum’s plan for treating inmates diagnosed

with gender dysphoria.

12. Accordingly, the committee drafted and unanimously approved the policy

for treatment of gender dysphoria as providing for mental-health counseling, hormonal

15

treatment (as dictated by appropriate medical standards for its administration), and/or, se-

curity concerns permitting, allowing transgender inmates their choice of a male or female

housing unit, as well as other dress/grooming privileges.

13. The committee approved the entire Handbook on August 16, 2019, and

Mr. Posca signed his approval of the policies immediately after I did on behalf of the com-

mittee.

I declare under penalty of perjury that the foregoing is true and correct. Executed

on October 24, 2020.

Erica L. Laridum, M.D. Erica L. Laridum, M.D.

16

APPENDIX C

Lucas Escoffier Pre-Prison Medical Record

Silphium University Medical System – Specialty Psychological Clinic Progress Note Patient: Lucas Escoffier (MRN 909-491-267) Author: Dr. Johanna Semlor, M.D. Department: Gender Date: 12/10/19

Diagnoses: Gender Dysphoria, Major Depressive Disorder

Background: I have been treating client since 2010. Client initially presented with symptoms of Major Depressive Disorder, including lethargy, difficulty sleeping, flat affect, and recurrent suicidal ideation (including, on one occasion, development of a concrete plan). Client initially presented as and identified as female.

In 2011, client began to note that client’s depressive symptoms were related to underlying and long-standing feelings of “having been born in the wrong body”. Client determined that he identified as a male, and struggled with being forced to exist in society identified as a female. On 3/9/2011, in consideration of insights provided by the client, I diagnosed client with Gender Dysphoria. We discussed possible courses of treatment, and client indicated a desire to proceed conservatively, as client was unfamiliar with this diagnosis and did not want to take irreversible steps.

In May 2012, client began the process of socially transitioning from his given name to his current name of “Lucas” (“social transition”). In the following months, client noted a sense of relief, and some reduction in depressive symptoms.

In 2013, client expressed a desire to continue with the process of transition, and to begin taking masculinizing hormones (“medical transition”). After due counseling on the effect of hormone treatment and client’s consideration of those effects, client elected to begin hormone treatment. I prescribed masculinizing hormone therapy on 7/1/2013.

Medication has been generally well-tolerated by client. Since the beginning of medical transition, client has noted a continuing decrease in depressive symptoms. Notably, client noted marked decrease in suicidal ideation as medical transition progressed.

Client underwent a preventive double-mastectomy procedure on 2/25/14, after receiving a positive genetic test for a mutation of the BRCA1 gene, which greatly increases the chance of a later breast cancer diagnosis. The surgery was undergone for

17

medical and not psychological purposes, but the client noted feelings of being much more comfortable in his body after it was performed.

Client legally changed his name to “Lucas Escoffier” on June 29, 2017.

Starting in April 2018, client began to notice a return of certain depressive symptoms. Client began to indicate that despite improvements in life since beginning medical transition, he cannot tolerate still being “forced to live in a woman’s body.” While he hoped social and medical transitions would be sufficient, he was beginning to fear that only full surgical transition would be sufficient. During this time, client began to note a marked increase in suicidal ideation.

Current Assessment and Recommendation: I met the client today to discuss client’s status. Client indicates that he cannot continue to live in a woman’s body. Specifically, client stated “There’s only two ways this ends. I live as a man, in a man’s body, because I am a man. Or I kill myself. Because I can’t keep doing this.” Client disclaimed any immediate suicidal intent or plan.

Considering the above history, contemporary evaluation of the client, and clinical guidelines, it is my determination that female-to-male gender affirmation surgery is clinically indicated for this client. Because of the client’s pre-existing double mastectomy, “top” surgery will not be required for this client. The client will require a full hysterectomy, and female-to-male genital reconstruction.

I have issued client a referral to the University Medical Center surgical department for further consultations on this matter.

18

APPENDIX D

Lucas Escoffier’s Prison Medical Record

GCF Detention Health Services - Psychiatry

Progress Note

Client: Lucas Escoffier (I# 20200415-0011)

Author: Dr. Arthur Chewtes, M.D.

Date: 5/1/20

Diagnoses: Gender Dysphoria, Major Depressive Disorder

Background:

Client is inmate at GCF. Presents with Gender Dysphoria,

confirmed by pre-detention diagnosis (on file).

Since detention intake, client has presented with symptoms

of severe depression. Client has remained in cell at all

times except to eat and shower. Client is noted to

regularly skip both of these normal activities. Client

notes anxiety, paranoia, recurring suicidal ideation.

Client health records show notable loss of weight since

intake, although no serious physical health risks have yet

been noted. Notable loss of hair appears to be self-

inflicted by pulling.

Client is long time user of masculinizing hormone therapy

for treatment of Gender Dysphoria. Prior notes indicate

client had been recommended for sex reassignment surgery

(termed “gender affirmation” in pre-detention clinical

notes). Surgery was not yet scheduled at time of intake.

Client demands such surgery now proceed.

Current Assessment and Recommendation:

After meeting with and evaluating the client, this writer

confirms presence of Gender Dysphoria and Major Depression

in the client. This writer has entered those diagnoses on

the client’s record.

Client will be continued on masculinizing hormone therapy,

consistent with pre-detention usage.

Client will retain access to weekly mental health

counseling for duration of detention, or until complete

remission of MD and GD symptoms.

Custody should ensure Client is observed at least hourly.

19

Client requested evaluation for sex reassignment surgery.

Such surgery is not available to GCF inmates, per MPH § G-

33.8. Evaluation will therefore not be conducted, as

results would not contribute to the well-being of the

client.

20

APPENDIX E

Response to Inmate Medical Grievance

Summary:

Inmate Lucas Escoffier (I# 20200415-0011) requested

evaluation for sex reassignment surgery, and provision of

such surgery if deemed clinically necessary. Such surgery

is prohibited to GCF inmates by duly enacted Medical Policy

Handbook § G-33.8(2)(D).

History:

Inmate submitted grievance 5/18/20, in reference to service

by Dr. Arthur Chewtes.

Grievance initially reviewed by Dr. Chewtes, as supervising

psychiatrist. Dr. Chewtes determined initial note was proper

and denied grievance 5/29/20.

Inmate appealed denial of grievance on 6/8/20. Appeal was

reviewed by Dr. Erica L. Laridum, MD, PhD, Division of Health

Director. Dr. Laridum determined that policy was proper and

denied grievance on 7/24/201.

Inmate appealed second denial of grievance on 8/4/201.

Decision:

The grievance is denied. Medical Policy Handbook § G-

33.8(2)(D) clearly prohibits the requested procedure, and

ain “individualized evaluation” could only have one result.

The inmate is already being properly treated with hormones

and psychotherapy, as provided under Medical Policy

Handbook § G-33.8(2)(A) and (B). There is no reason to

second-guess the clinical decision making of doctors

Chewtes and Laridum. Existing procedures were already

designed to keep inmates safe (and prevent any suicide

attempts). Furthermore, even if this might have been

entertained in normal times, this facility’s health system

is already stressed enough trying to keep inmates and staff

safe from Miasmic Syndrome. Now is not the time to start

offering luxury services.

This decision is final as of 9/15/20. No more appeals may

be taken.

____________/s/__Max Posca_________

Max Posca

Warden and Administrator, Garum Correctional Facility

21

APPENDIX F

Garum Correctional Facility Mailing Certificate

To be completed by Inmate

Inmate: _ Lucas Escoffier (handwritten) _

I#: _ 20200415-0011 (handwritten) _

Destination Address: _ Federal District Court (handwritten) _

_ Attn: Filing Clerk (handwritten) _

_ 1800 Court St (handwritten) _

_ Judiciary City, SM 55555 (handwritten) _

Check if Mailing is LEGAL MAIL:

To be completed by Receiving Custody Officer

Date Received: _ 3/2/21 _

Check if Postage Paid by Inmate:

Officer: _ /s/ James Whitbread _

To be completed by Custody Officer on Transmittal

Date Outgoing: _ 3/7/21 _

Officer: _ /s/ Evander Linzer _

22

UNITED STATES DISTRICT COURT,

SILPHIUM

Docket No. 21-916

LUCAS ESCOFFIER,

Plaintiff

v.

MAX POSCA, Iin His Official Capacity Aas Warden and Administrator of Garum

Correctional Facility,

Defendant

MEMORANDUM AND ORDER

SAMUELSSON, District Judge.

Plaintiff Lucas Escoffier, a transgender inmate, filed this action under 42 U.S.C.

section 1983, seeking declaratory and injunctive relief, on the grounds that the policy in

place at Garum Correctional Facility, a state-run facility and the sole prison in this state,1

categorically excluding all surgical treatments from the prison’s treatment plan for gender

dysphoria, violates the Eighth Amendment of the United States Constitution. Following

briefing and a hearing on Posca’s motion to dismiss, which was converted to a motion for

summary judgment, this Court GRANTS summary judgment to Defendant.

1 The Garum Correctional Facility does not only house those convicted of felonies; in

fact, all persons arrested and charged with a crime by Silphium police are detained at

Garum from the time they are charged to the time they are released.

23

BACKGROUND

The facts of this case are set forth in the Record and are derived from Plaintiff’s

complaint, the materials included with the parties’ briefing, the hearing held in court, and

public records; none are disputed.

Mr. Escoffier is a transgender man diagnosed with gender dysphoria in March

2011.2 He began gender alignment therapy and treatment in July 2013—several years be-

fore his incarceration at Garum Correctional Facility (“Garum Facility”). Mr. Escoffier re-

sponded well to this social transition and hormone therapy. On or around December 2019,

Mr. Escoffier’s personal doctor and psychiatrist, Dr. Johanna Semlor, advised that Mr. Es-

coffier seek necessary gender affirmation surgery to further treat his gender dysphoria. Mr.

Escoffier took several steps to initiate his surgery—including scheduling a surgical consul-

tationthe surgery with his medical team—but just about a week before the consulta-

tion’ssurgery was scheduled date, he was arrested and later charged with criminal tax fraud.

Mr. Escoffier was sentenced to five years and began serving his sentence on March 7, 2020.

He was permitted to continue his hormone replacement therapy to treat his gender dyspho-

ria during his incarceration.

Mr. Escoffier’s sentence coincided directly with the onset of the global pandemic

caused by the Miasmic Syndrome. As the Fourteenth Circuit opined just last year, the “Mi-

asmic Syndrome has infected millions across the world,” and at that time, there was no

known cure. See Cleopatra v. Caesar Health Plan, Inc., 20-0991 (14th Cir. 2020). Prisons,

2 Mr. Lucas Escoffier’s identity and gender is not contested by either party; and it is the

policy of this Court to use the preferred name and pronouns of each party litigating

before the Court. All parties and litigants are reminded to be courteous and respectful

as the practice of law demands.

24

including the Garum Facility, were hit particularly hard: incarcerated people were prohib-

ited from in-person visitation, and the facilities limited inter-facility interaction, including

the use of telephones, libraries, and computers. And although Mr. Escoffier continued with

his hormone therapy at regularly scheduled intervals, his mental and physical health began

to noticeably decline. By May 2020, he began to suffer from suicidal ideation, loss of

weight, and clinical depression.

Mr. Escoffier spoke with medical and psychiatric professionals at Garum Facility

about his deteriorating mental and physical condition, informing the prison that his gender

dysphoria was intolerable and requesting gender affirmation surgery, per his own doctor’s

recommendations. The Garum Facility denied Mr. Escoffier’s request, based on a medical

policy prohibiting any surgical intervention for the treatment of gender dysphoria (the

“Treatment Policy”). See App’x A. The policy was created in consultation with the Divi-

sion of Health Director for the Garum Correctional Facility, Dr. Erica L. Laridum. After

speaking with the Garum Facility psychiatrist, Dr. Chewtes (App’x D), submitting several

grievances on this issue, and appealing his denials within the prison medical system, on

September 15, 2020, the Garum Facility informed Mr. Escoffier that his final request for

gender affirmation surgery was denied. See App’x E.

THE INSTANT LITIGATION AND MOTION3

With the final administrative decision made, Plaintiff sought and retained counsel,

and filed this action on October 5, 2020. The complaint alleges a single cause of action

3 Mr. Escoffier has accordingly exhausted his administrative remedies.

25

under 42 U.S.C. § 1983, alleging that the prison’s policy denying gender affirmation sur-

gery as treatment for gender dysphoria is unconstitutional under the Eighth Amendment of

the United States Constitution. Plaintiff sought declaratory and injunctive relief, ordering

Garum to provide him with an individualized evaluation for gender affirmation surgery,

and to revise the prison’s treatment policies to include gender affirmation surgery as a

treatment, when appropriate, for inmates diagnosed with gender dysphoria.

On October 25, 2020, Mr. Posca filed a motion to dismiss for failure to state a claim,

under Federal Rule of Civil Procedure 12(b)(6). Mr. Posca’s motion included a declaration

by Dr. Erica L. Laridum detailing the process by which the policy was created. The Court

issued an order directing the parties to inform the court whether they believed that Posca’s

motion should be converted to a motion for summary judgment, pursuant to Federal Rule

of Civil Procedure 12(d); both parties agreed to treatment of the motion as one for summary

judgment. The Court held a hearing on the motion on January 12, 2021, and reserved de-

cision.

On the grounds discussed below, having considered the complaint, the parties’

briefs and supporting materials, and the parties’ arguments at the January 12 hearing, the

court finds that there is no dispute of material fact, and that Defendant is entitled to sum-

mary judgment.

DISCUSSION

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” When ruling on a motion for sum-

mary judgment, the Court considers all facts in the light most favorable to the non-moving

26

party, drawing all reasonable inferences in that party’s favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1982).

The Eighth Amendment of the United States Constitution provides, among other

things, that “cruel and unusual punishments [shall not be] inflicted.” U.S. Const. amend.

VIII. It is long settled that this proscription, however, does not merely prevent states from

carrying out harmful actions; it also prohibits inappropriate inaction—to wit, “deliberate

indifference to serious medical needs of prisoners,”

whether the indifference is manifested by prison doctors in their response

to the prisoner’s needs or by prison guards in denying or delaying access to

medical care or intentionally interfering with the treatment once prescribed.

Regardless of how evidenced, deliberate indifference to a prisoner’s serious

illness or injury states a cause of action under [42 U.S.C.] § 1983.

Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). Indifference need not ignore current treat-

ment needs to be unconstitutional—failure to “take reasonable measures to abate” any

known “substantial risk of serious harm” to inmates may run afoul of the Eighth Amend-

ment. Farmer v. Brennan, 511 U.S. 825, 847 (1994); see also Helling v. McKinney, 509

U.S. 25, 32–33 (1993) (exposing prisoners to secondhand smoke may constitute cruel and

unusual punishment, despite prisoners not alleging current illness or other injury caused by

secondhand smoke). Nevertheless, a showing of deliberate indifference requires that the

plaintiff demonstrate that Mr. Posca acted not just with negligence or that he had inadvert-

ently denied access to care; Plaintiff must show that Mr. Posca deliberately hindered or

prevented access to necessary care. See Estelle, 429 U.S. at 105–06.

In this case, the parties do not disagree about the relevant facts, nor have they pre-

sented any conflicting evidence. They agree that the Treatment Policy was made by a panel

27

of experienced doctors, including those with experience treating patients with gender dys-

phoria.4 The decision to preclude gender affirmation surgery was made only after several

hours of discussion among committee members, whose consideration had taken, as a start-

ing point, the current version of the Standards of Care for the Health of Transsexual,

Transgender, and Gender-Nonconforming People, published by the World Professional As-

sociation for Transgender Health (the “WPATH Standards”). The WPATH Standards, as

noted by Plaintiff, have been referred to by at least one court as “the gold standard” on the

treatment of gender dysphoria. Edmo v. Corizon, Inc., 935 F.3d 757, 788 n.16 (9th Cir.

2019). The parties’ dispute turns not on the means by which the policy was created, nor

whether it was correctly applied—rather, it turns solely on whether the policy itself

amounts to unconstitutional deliberate indifference to the medical needs of prisoners with

gender dysphoria.

To date, a number of Courts of Appeals have considered whether the Eighth

Amendment mandates that transgender inmates be afforded gender affirmation surgeries.

Plaintiff urges this Court to apply the reasoning adopted by the Ninth Circuit in Edmo v.

Corizon, in which the court affirmed the district court’s determination that gender affirma-

tion surgery was necessary for the plaintiff, and the refusal to provide that treatment there-

fore was unconstitutional. 935 F.3d at 787. Edmo, however, is clearly inapposite to this

action. There, as determined by the district court and affirmed by the circuit court, the

plaintiff’s treating prison doctor fell short in applying or reasonably deviating from the

WPATH Standards, id. at 791, and the plaintiff’s experts’ testimony established that that

4 Neither of the parties dispute that treatment for gender dysphoria constitutes a “serious

medical need”; thus, we do not address this issue. Therefore, any argument that gender

dysphoria does not constitute such serious medical need is properly waived.

28

surgery was indeed necessary for that particular plaintiff, id. at 790. Here, however, Plain-

tiff is challenging a uniform standard that was the result of a carefully considered panel of

medical experts.

That considered decision-making also distinguishes this case from another recent

decision cited by Plaintiff. In Monroe v. Baldwin, 424 F. Supp. 3d 526, 544 (S.D. Ill. 2019),

the district court entered a preliminary injunction requiring that the Illinois Department of

Corrections evaluate prisoners with gender dysphoria for surgical treatment. However, the

Monroe court noted that the “Transgender Committee” who made medical decisions for

transgender inmates’ care were not qualified to do so, having no doctors with sufficient

relevant experience in treating inmates’ gender dysphoria. Here, the committee that prom-

ulgated the Treatment Policy included specialists in psychiatry and endocrinology, for ex-

ample, and had significant experience treating gender dysphoria.

Defendant meanwhile directs this Court to the recent decision of the Fifth Circuit

in Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019). There, the court considered a Texas

policy similar to that in force at Garum, which had the effect of proscribing gender affir-

mation surgery for transgender inmates.5 The Fifth Circuit upheld the district court’s de-

termination, finding that there was no dispute that there was a “robust and substantial good

faith disagreement dividing respected members of the expert medical community” regard-

ing the necessity of gender affirmation surgery. 920 F.3d at 220. Therefore, there could be

no Eighth Amendment violation, as there was no medical consensus about the necessity of

gender affirmation surgery. Id.

5 There, the inmate’s requests for treatment were denied because of surgery’s non-inclu-

sion. 920 F.3d at 217–18. Here, however, the Treatment Policy explicitly proscribed

gender affirmation surgery as a treatment from for inmates’ gender dysphoria.

29

This Court agrees with the reasoning put forth by the Fifth Circuit in Gibson. As

clearly demonstrated here, there remains substantial disagreement over whether gender af-

firmation surgery is a treatment necessary to treat gender dysphoria; Garum’s committee

came to such a conclusion, despite its awareness and consideration of the contrary WPATH

Standards. And there is no argument to be made here that Posca—and through him,

Garum—was indifferent to inmates’ gender dysphoria—rather, he chose to provide access

to a number of treatments known to be effective in treating gender dysphoria, while ex-

cluding one accompanied by expert disagreement. See Kosilek v Spencer, 774 F.3d 63, 87

(1st Cir. 2014) (en banc) (finding denial of gender affirmation surgery constitutional where

prison provided wide range of alternative therapies).

CONCLUSION

The Court recognizes that the standards by which gender dysphoria is treated con-

tinue to evolve, and recognizes that Plaintiff continues to suffer the severe symptoms that

come with such a serious condition. However, this Court finds that, as a matter of law, the

prison’s medical policymakers, having brought to bear their medical expertise, enacted a

policy that does not constitute deliberate indifference to the needs of inmates with gender

dysphoria.

Accordingly, the Court GRANTS summary judgment in favor of Defendant.

30

UNITED STATES COURT OF APPEALS,

FOURTEENTH CIRCUIT

Docket No. 21-916

LUCAS ESCOFFIER,

Plaintiff-Appellant

v.

MAX POSCA, Iin His Official Capacity Aas Warden and Administrator of Garum

Correctional Facility,

Defendant-Appellee

BEFORE CHILD, C.J., LAGASSE, and CHANG, J.

OPINION

LAGASSECHILD, Chief Judge, joined by CHILDLAGASSE, Judge:

This appeal presents two issues of first impression in this Circuit. The first concerns

the timeliness of a notice of appeal filed by a prisoner themselves, where that prisoner’s

counsel does not submit the notice on the prisoner’s behalf. The second questions the

boundaries in which a State may validly proscribe certain medical treatments to its prison-

ers consistent with the requirements of the Eighth Amendment of the United States Con-

stitution. For the reasons that follow, the Court (1) finds that Plaintiff-Appellant’s appeal

was timely; (2) reverses the order of the United States District Court for District of

Silphium (D. Sil.) granting summary judgment to Defendant-Appellee; and (3) remands

this action to the district court for further proceedings consistent with this opinion.

The facts of this case are set forth in the Record on Appeal and the Court assumes

familiarity with the relevant background. Any additional facts are cited only to the extent

necessary to explain our ruling.

31

Plaintiff-Appellant, Mr. Escoffier, filed a complaint seeking declaratory and injunc-

tive relief under 42 U.S.C. § 1983 and alleging that the Garum Correctional Facility policy

denying surgical care to treat gender dysphoria was facially unconstitutional under the

Eighth Amendment. Plaintiff also requested that the district court enter an injunction re-

quiring the Garum Facility to either provide Plaintiff-Appellant with gender affirmation

surgery, or to provide individualized analysis as to whether such surgery was necessary for

his medical needs.

Mr. Posca, sued in his official capacity as Warden of Garum, timely filed a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the policy, as a

matter of law, did not violate the Eighth Amendment, and that Plaintiff, accordingly, had

not stated a claim upon which relief could be granted. With his motion, however, Mr. Posca

included the affidavit of Dr. Erica L. Laridum, Director of the Health Division at the Garum

Facility and who authored the prison’s medical policy. With the agreement of the parties,

the district court converted Mr. Posca’s motion to one for summary judgment, pursuant to

Federal Rule of Civil Procedure 12(d).

On February 1, 2021, the district court issued its decision, granting summary judg-

ment in favor of Defendant. The district court determined that given the disagreement

within the medical community about the necessity of gender affirmation surgery, as evi-

denced by the Garum committee’s own expertise, the policy comported with the require-

ments of the Eighth Amendment.

As this Court learned, although Mr. Escoffier was represented by counsel through-

out this litigation, his attorney, Msr. Samuel Sami Pegge, contracted the novel Miasmic

32

Syndrome and was hospitalized for a period of over two weeks. During that time, Mr. Es-

coffier had not heard from Ms. Pegge or his her law firm, Forme Cury, until March 2, 2021.

On March 2, 2021, a different associate from Ms. Pegge’s firm reached out to Mr. Escoffier

(responding to an e-mail that Mr. Escoffier sent to the firm’s general inbox) and instructed

him to immediately mail his Notice of Appeal form to the prison’s mail facilities. Mr. Es-

coffier submitted his Notice of Appeal to the prison’s mailing room on March 2, 2021 (see

App’x F); but due to staffing difficulties and mail backlog, it was not until March 7, 2021

that Garum Correctional actually mailed the notice to the district court. Mr. Escoffier’s

Notice of Appeal was thus not received by the district court until March 10, 2021.

The parties briefed two questions to the Court:

1. Was Plaintiff-Appellant’s Notice of Appeal timely filed and, therefore, is

this appeal proper before the Court?

2. Is the medical policy at Garum Corrections Facility prohibiting gender af-

firmation surgery a violation without allowing any individualized assess-

ment of an inmate’s medical condition an unconstitutional violation of

Plaintiff-Appellant’s Eighth Amendment rights?

DISCUSSION

We turn next to the merits of the parties’ legal arguments. This Court reviews the

district court’s grant of summary judgment de novo. Williams v. Nat’l Union Fire Ins. Co.

of Pgh., 792 F.3d 1136, 1139 (9th Cir. 2015) (“We review de novo a district court’s grant

or denial of summary judgment.”); see also Eastman Kodak Co. v. Image Tech. Servs., Inc.,

504 U.S. 451, 465 n.10 (1992) (“[O]n summary judgment we may examine the record de

novo without relying on the lower courts’ understanding….”).

33

I. Issue One: Is Plaintiff’s Appeal Timely?

We first turn to the question of jurisdiction. “The filing of a timely notice of appeal

is an absolute prerequisite to our jurisdiction.” United States v. Ceballos-Martinez,

387 F.3d 1140, 1143 (10th Cir. 2004) (quotations omitted); . The appellant bears the burden

of establishing our jurisdiction; here, showing that he complied with the prison mailbox

rule. See May v. Mahone, 876 F.3d 896, 898 (7th Cir. 2017) (“The burden of proving the

date of the mailing rests on the plaintiff who is seeking to establish jurisdiction.”). That

rule states:

If an institution has a system designed for legal mail, an inmate confined

there must use that system to receive the benefit of this Rule 4(c)(1). If an

inmate files a notice of appeal in either a civil or a criminal case, the notice

is timely if it is deposited in the institution’s internal mail system on or be-

fore the last day for filing.

Fed. R. App. P. 4(c)(1). See also Houston v. Lack, 487 U.S. 266, 275–76, (1988) (estab-

lishing prison mailbox rule); Hurlow v. United States, 726 F.3d 958, 962 (7th Cir. 2013)

(“The prison mailbox rule … provides that a prisoner’s notice of appeal is deemed filed at

the moment the prisoner places it in the prison mail system, rather than when it reaches the

court clerk. In order to receive the benefit of the prison mailbox rule, Rule 4(c) requires

that an inmate use the prison’s legal mail system if it has one.”).

There is no question that a pro se prisoner is entitled to the benefit of the prison

mailbox rule. Indeed, as the Supreme Court in Houston recognized in the “unique” situa-

tion of “prisoners seeking to appeal without the aid of counsel”:

Such prisoners cannot take the steps other litigants can take to monitor the

processing of their notices of appeal and to ensure that the court clerk re-

ceives and stamps their notices of appeal before the 30-day deadline. Unlike

other litigants, pro se prisoners cannot personally travel to the courthouse

to see that the notice is stamped ‘filed’ or to establish the date on which the

court received the notice. Other litigants may choose to entrust their appeals

to the vagaries of the mail and the clerk's process for stamping incoming

34

papers, but only the pro se prisoner is forced to do so by his situation. And

if other litigants do choose to use the mail, they can at least place the notice

directly into the hands of the United States Postal Service (or a private ex-

press carrier); and they can follow its progress by calling the court to deter-

mine whether the notice has been received and stamped, knowing that if the

mail goes awry they can personally deliver notice at the last moment or that

their monitoring will provide them with evidence to demonstrate either ex-

cusable neglect or that the notice was not stamped on the date the court

received it. Pro se prisoners cannot take any of these precautions; nor, by

definition, do they have lawyers who can take these precautions for them.

Worse, the pro se prisoner has no choice but to entrust the forwarding of his

notice of appeal to prison authorities whom he cannot control or supervise

and who may have every incentive to delay. No matter how far in advance

the pro se prisoner delivers his notice to the prison authorities, he can never

be sure that it will ultimately get stamped ‘filed’ on time. And if there is a

delay the prisoner suspects is attributable to the prison authorities, he is un-

likely to have any means of proving it, for his confinement prevents him

from monitoring the process sufficiently to distinguish delay on the part of

prison authorities from slow mail service or the court clerk's failure to stamp

the notice on the date received.

Houston, 487 U.S. at 271–75.

And so the Supreme Court concluded that for pro se prisoners, who are “[u]nskilled

in law, unaided by counsel, and unable to leave the prison”—and whose “control over the

processing of [their] notice necessarily ceases as soon as [they] hand[] it over to the only

public officials to whom [they] ha[ve] access”—the moment of “filing” for the purposes

of Rule 4 is triggered at the time of delivery of the appeal to prison authorities—“not receipt

by the clerk.” Id. Following amendment to Federal Rule of Appellate Procedure 4 to in-

clude this provision, the prison mailbox rule has since been extended in other circuits to

apply to filings other than notices of appeal under Rule 4(c). See, e.g., Richard v. Ray,

290 F.3d 810, 813 (6th Cir. 2002) (civil complaints); Jones v. Bertrand, 171 F.3d 499, 501

(7th Cir. 1999) (habeas corpus petitions); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir.

1999) (administrative filings under the Federal Tort Claims Act); In re Flanagan, 999 F.2d

753, 755 (3d Cir. 1993) (appeal of bankruptcy order). And while the burden for establishing

35

jurisdiction remains with the plaintiff, “[a]bsent evidence to the contrary, we assume that a

prisoner delivered a filing to prison authorities on the date that he signed it,” and the “bur-

den is [then] on the government to prove the [document] was delivered to prison authorities

on a date other than the date the prisoner signed it.” Jeffries v. United States, 748 F.3d 1310,

1314 (11th Cir. 2014).

But as with all matters before our Court, this case presents a slightly different set

of circumstances. Here, Plaintiff-Appellant is not entirely “unaided by counsel.” Id. Indeed,

Mr. Escoffier filed this § 1983 lawsuit against Mr. Posca while represented by counsel; he

submitted his opposition to Mr. Posca’s dismissal turned summary judgment with the as-

sistance of counsel; and Mr. Escoffier’s counsel, Ms. Pegge, represented Plaintiff-Appel-

lant during the hearing before the district court on this dispute. But, as was revealed to this

learned Court during the appeal, Mr. Escoffier’s communications with counsel and coun-

sel’s firm were significantly curtailed due in large part to the public-health crisis caused by

the Miasmic Syndrome. See Cleopatra v. Caesar Health Plan Inc., No. 20-099 (14th Cir.

2020) (discussing global effect of Miasmic Syndrome). First, in an attempt to curb the

spread of the virus within the prison, Garum put into effect several policies that limited the

number of prisoners interacting in public spaces. In effect, privileges such as open cafeteria

dining, weekly telephone calls, and access to the library was substantially restricted.1 Sec-

ond—unbeknownst to Mr. Escoffier—his attorney, Ms. Pegge, contracted a severe form of

Miasmic Syndrome shortly after the district court issued its decision granting summary

1 Whether Garum’s new policies in response to the novel Miasmic Syndrome themselves

implicated any constitutional violations is not an issue that either party has raised in

this appeal; accordingly, this Court will not consider these arguments.

36

judgment. As a result of his her hospitalization, Ms. Pegge was incapacitated and failed to

submit a timely notice of appeal on behalf of his her client.

Notably, however, the attorney’s firm continued to represent Mr. Escoffier. And

indeed, this was not a one-man operation: counsel’s law firm, Forme Cury, consists of more

than twenty other attorneys—presumably many, if not all, of whom are competent coun-

sel—who could have continued to represent Plaintiff-Appellant in Ms. Pegge’s absence.2

None of them did so, faulting a clerical error that failed to properly transition the attorney’s

matters to others at the firm. At the eleventh hour, another associate at Ms. Pegge’s law

firm noticed an e-mail from Mr. Escoffier sent to the firm’s general inbox seeking help on

his appeal; that associate immediately instructed Mr. Escoffier to mail his Notice of Appeal

on his own. This is the root of the question before us today: how far does Rule 4(c) take an

otherwise represented prisoner whose counsel is temporarily incapacitated? This is an issue

of first impression and accordingly, we turn to our sister courts for guidance.

Most recently, in January of this year, the Sixth Circuit analyzed the limitations of

Rule 4(c) in a similar context of represented prisoners who file civil complaints in federal

court. See Cretacci v. Call, 988 F.3d 860 (6th Cir. 2021). The relevant facts are as follows:

plaintiff was a pretrial detainee who retained counsel to file a complaint alleging numerous

constitutional violations stemming from his time in the Coffee County prison facility. Id.

at 864. On the eve of filing plaintiff’s complaint before the statute of limitations had lapsed,

the attorney realized he was not admitted to practice law in the district that encompassed

2 Importantly, however, Mrs. Pegge is one of the few—if not the only—attorneys at

Forme Cury that works on cases involving inmates.

37

the Coffee County Jail.3 Id. at 865. Despite the attorney’s efforts to file the complaint in-

person, he was unable to do so. Id. The attorney brought the complaint (stamped and ad-

dressed to the proper courthouse) to his client at the Coffee County Jail, instructing him to

deliver the complaint to correctional officers to take advantage of the prison mailbox rule.

Plaintiff did so on the night that the statute of limitations had lapsed. The complaint was

received by the district court four days later. Confronted with the same issue as the one

before us today, the Sixth Circuit held that (1) plaintiff “was not proceeding without assis-

tance of counsel” and (2) that “the prison mailbox rule applies only to prisoners who are

not represented by counsel and are proceeding pro se.” Id. at 867. The Sixth Circuit’s rea-

soning was succinct:

[t]he prison mailbox rule was created to prevent pro se prisoners from being

penalized by any delays caused by the prison mail system. But if a prisoner

does not need to use the prison mail system, and instead relies on counsel

to file a pleading on his or her behalf, the prison is no longer responsible for

any delays and the rationale of the prison mailbox rule does not apply.

Id. at 867.

Other courts before Cretaccicetti have found similarly. See United States v. Camilo,

686 Fed. App’x 645, 646 (11th Cir. 2017) (“The mailbox rule was not intended to help

prisoners with counsel, so it does not apply here.”); Cousin v. Lensing, 310 F.3d 843, 847

(5th Cir. 2002) (“A prisoner litigant who is represented by counsel is not incapable of con-

trolling the filing of pleadings. Instead, he has an agent through whom he can control the

conduct of his action, including the filing of pleadings. As a result, he is not restricted in

the same manner as one who is representing himself, nor is he dependent on the prison

3 The attorney mistakenly believed that the jail facility was located in a jurisdiction

where he was admitted. Id. at 865.

38

system or its officials for his ability to pursue an action or file necessary pleadings. Conse-

quently, the justifications for leniency with respect to pro se prisoner litigants do not sup-

port extension of the “mailbox rule” to prisoners represented by counsel.”); United States

v. Rodriguez-Aguirre, 30 Fed. App’x 803, 805 (10th Cir. 2002) (“Although the prison mail

system can delay receipt of prisoner mail, Aguirre was represented by current counsel on

the date the Supreme Court denied certiorari”).

We are not convinced by these decisions. We do not see a basis to limit the prison

mailbox rule to solely pro se prisoners, nor does our reading of Houston support that inter-

pretation. While there is no dispute that the Houston Court was describing the experience

of pro se prisoners (including that prisoners “cannot take the steps other litigants can take

to monitor the processing of their notices of appeal,” they cannot “personally travel to the

courthouse to see that the notice is stamped ‘filed,’” and they “can never be sure that [the

notices] will ultimately get stamped ‘filed’ on time”), these circumstances are not unique

to only pro se litigants. Houston, 487 U.S. at 271-72. Indeed, these were the exact circum-

stances that Mr. Escoffier found himself in: unable to reach his attorney, unable to travel to

the courthouse, and with “no choice but to entrust the forwarding of his notice of appeal to

prison authorities whom he cannot control or supervise and who may have every incentive

to delay.” Id. The Fourth Circuit in United States v. Moore, 24 F.3d 624, 625 (4th Cir. 1994),

applied a similar rationale in its interpretation of Houston: “Though Houston itself involved

an unrepresented prisoner, the majority acknowledged that ‘[t]he situation of prisoners

seeking to appeal without the aid of counsel is unique.’” Id. (quoting Houston, 487 U.S. at

270). “[W]henever a prisoner attempts to file a notice of appeal from prison, [the prisoner]

39

is acting ‘without the aid of counsel,’ even if [they] are ‘represented’ in a passive sense.”4

Id. This Court can think of no representation more “passive” than the one at issue here

today.

We think it is important to note, however, that this Court does not exclusively rely

on Houston in issuing today’s ruling. Federal Rule of Appellate Procedure 4 has been

adopted without any limitation as to the whether the prisoner is acting with or without

counsel’s representation. Accordingly, “[a] court ought not pencil ‘unrepresented’ or any

extra word into the text of Rule 4(c), which as written is neither incoherent nor absurd.”

United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004).

Consistent with the Fourth and Seventh Circuits, we see “no good reason” to limit

the prison mailbox rule to only those prisoners that are proceeding pro se, particularly given

the exigent circumstances at issue in this case. We also find that Plaintiff-Appellant’s No-

tice of Appeal otherwise satisfies the requirements of Fed. R. App. P. 4(c)(1)(A). Applying

the prison mailbox rule and accepting March 2, 2021 as the notice date, the Court concludes

Plaintiff-Appellant’s motion is timely and considers its merits.

II. Issue Two: Plaintiff’s Eighth-Amendment Challenge

The Eighth Amendment of the United States Constitution prohibits, among other

things, “cruel and unusual punishments.” U.S. Const. amend. VIII. Such an unconstitu-

tional punishment may take the form of delay of, deprivation of, interference with, or any

other “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble,

4 We recognize that there are certain jurisdictions that prohibit a party from acting on its

own behalf while represented by counsel. This issue is not implicated in our jurisdic-

tion.

40

429 U.S. 97, 104–05 (1976). That being said, the Constitution does not require that prison-

ers be provided with every conceivable treatment, provided by the most lauded physicians

in the world; rather, it only requires care not to “fall below society’s minimum standards

of decency.” Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014) (en banc) (quoting Estelle,

429 U.S. at 102–05). As the Ninth Circuit has described the standard, a prisoner making an

Eighth Amendment claim must demonstrate that the prison officials were deliberately in-

different to the fact that “failure to treat [the] prisoner’s condition could result in further

significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d

1091, 1096 (9th Cir. 2006).

There is little doubt that Plaintiff, and others with gender dysphoria, suffer signifi-

cantly, and have severely harmed themselves in prison. See, e.g., Edmo v. Corizon, Inc.,

935 F.3d 757, 767 (9th Cir. 2019) (inmate twice attempted self-castration and engaged in

self-cutting); Gibson v. Collier, 920 F.2d 212, 217 (5th Cir. 2019) (inmate once attempted

self-castration and had three suicide attempts). But the Eighth-Amendment question pre-

sented here has, over the past few years, generated a distinct break among the other Circuit

Courts to have considered such issues—including in the Edmo and Gibson cases cited im-

mediately above.

In March 2019, the Fifth Circuit issued its decision in Gibson v. Collier, 920 F.3d

212 (5th Cir. 2019), upholding the Texas Department of Criminal Justice’s policy for treat-

ing gender dysphoria, which did not include gender affirmation surgery among the treat-

ments available to its inmates. The policy at issue in that case is in many ways similar to

the policy in use in the Garum facility: both require that inmates be individually evaluated

by appropriate medical/mental-health professionals, and treated on an individualized basis,

41

reflecting prevailing standards of care. While the Texas policy simply does not include

gender affirmation surgery among the available treatments for gender dysphoria, however,

Garum’s policy explicitly prohibits “[s]urgical interventions.”5

The Fifth Circuit held that the Texas policy was constitutional. Its decision largely

focused on disagreement within the medical community, finding that the “bedrock princi-

ple” that “‘mere disagreement with one’s medical treatment is insufficient’ to state a claim

under the Eighth Amendment” “doom[ed]” the case. Gibson, 920 F.3d at 216 (citing

Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018)). In fairly conclusory fashion, the

Gibson court cited prior precedent that disagreement with one’s medical providers does

not present an Eighth-Amendment violation, that Gibson6 “seem[ed] to accept” that the

plaintiff must demonstrate “‘universal acceptance by the medical community’ that [gender

affirmation] surgery treats gender dysphoria.” 920 F.3d at 220 (citing Gibson’s appellate

brief). Pointing to “robust and substantial good faith disagreement dividing respected mem-

bers of the expert medical community” on the question, the Fifth Circuit found no consti-

tutional violation. Id. (citing Kosilek, 774 F.3d at 96).

Mere months later, the Ninth Circuit upheld a finding of an Eighth-Amendment

violation where an inmate was refused gender affirmation surgery despite the plaintiff’s

serious risk of self-harm absent such treatment. Edmo v. Corizon, Inc., 935 F.3d 757, 797

5 The relevant portion of the policy reads, in full, “Surgical interventions are not provided

for [gender dysphoria]” in the Garum facility. (R. at 112).

6 Though the plaintiff in Gibson “has lived as a female since the age of 15” and uses the

name “Vanessa Lynn Gibson,” the Gibson court refers to the Gibson by Gibson’s birth

name and accompanying masculine pronouns, “consistent with the [Texas] system—

which Gibson [did] not seem to challenge.” 920 F.3d at 217 & 217 n.2. This Court’s

policy is to use the pronouns preferred by all individuals referenced in its documents.

42

(9th Cir. 2019) (finding the plaintiff to have “established her Eighth Amendment claim of

deliberate indifference” as to the prison’s psychiatrist), reh’g en banc denied, 949 F.3d 489

(9th Cir. 2020), cert. denied sub nom. Idaho Dep’t of Correction v. Edmo, 141 S. Ct. 610

(2020). In Edmo, the court was not evaluating a policy outright prohibiting gender affirma-

tion surgery, as the policy in Garum does—it provided that surgery “‘will not be considered

… unless determined medically necessary by’ the treating physician.” 935 F.3d at 773.

Edmo’s treating physician opined that Edmo did not meet any of the criteria he indicated

would make gender affirmation surgery necessary, and confirmed his opinion with a num-

ber of other doctors who “did not observe Edmo” but simply “agreed with [the doctor’s]

recommended treatment as he presented it to them.” 935 F.3d at 773–74. The district court

determined that Edmo’s physician, despite testifying he “considered the WPATH Standards

of Care when determining Edmo’s treatment,” failed to satisfy those broadly-accepted

standards, 935 F.3d at 780–81, which are clear that “treatment can and should include [gen-

der affirmation surgery] when medically appropriate,” 935 F.3d at 771.

Another recent case also suggests to this Court that precluding gender affirmation

surgery altogether violates the Eighth Amendment. In Illinois, a putative class action was

filed by transgender inmates who alleged that the state’s prisons systematically failed to

adequately treat gender dysphoria. The court granted plaintiffs a preliminary injunction,

after an evidentiary hearing at which plaintiffs demonstrated, among other things, that the

defendants at the Illinois Department of Corrections had not ever evaluated an inmate for

gender affirmation surgery. Monroe v. Baldwin, 424 F. Supp. 3d 526, 544 (S.D. Ill. 2019),

on reconsideration, 2020 WL 1048770 (Mar. 4, 2020) (clarifying the preliminary injunc-

tion). The court’s preliminary injunction directed the defendant to, among other things,

43

“develop a policy to ensure that decisions about treatment for gender dysphoria are made

by medical professionals who are qualified to treat gender dysphoria”;’” and “develop pol-

icies and procedures which allow transgender inmates access to clinicians who meet the

competency requirements stated in the WPATH Standards of Care.”7 424 F. Supp. 3d at

546. Granted, the policies in place in Garum do not share some of the flaws identified in

Monroe; for example, Garum’s inmates do have access to clinicians who have significant

experience in treating patients with gender dysphoria, nor are inmates at Garum subjected

to “the policy and practice of denying and delaying hormone therapy for reasons that are

not recognized as contraindications to treatment.” Id. Like the Edmo court, the Monroe

court noted that the WPATH Standards include surgery among the treatment options for

gender dysphoria, 424 F. Supp. 3d at 530, and credited expert testimony from the plaintiffs’

experts that “surgery can be medically necessary to treat gender dysphoria,” Id. at 544.

This Court agrees with the Ninth Circuit, and with the Monroe court, that Defend-

ant-Appellee, by urging this Court to adopt the Gibson approach, asks that we endorse “an

incorrect, or at best outdated, premise: that ‘[t]here is no medical consensus that [gender

affirmation surgery] is a necessary or even effective treatment for gender dysphoria.’ …

[T]he medical consensus is that [gender affirmation surgery] is effective and medically

necessary in appropriate circumstances[, and] the WPATH Standards of Care … recognize

this fact.” Edmo, 935 F.3d at 795–96 (quoting Gibson, 920 F.3d at 223). And Contrary to

Mr. Posca’s argument, Edmo is not inapposite to this case simply because of the difference

in policy and procedure at issue between that case and here. Edmo stands for the principle

7 World Professional Association for Transgender Health, Standards of Care for the

Health of Transsexual, Transgender, and Gender-Nonconforming People (7th ed.

2012), available at https://www.wpath.org/publications/soc.

44

that each inmate’s medical needs must be individually addressed; a one-size-fits-all policy

denying a treatment accepted to be medically necessary in some instances is facially, de-

liberately indifferent to the serious medical needs of individuals subjected to the policy—

including Plaintiff.

Garum’s policy violates the Eighth Amendment. The Garum facility must individ-

ually evaluate whether gender affirmation surgery is medically necessary for inmates diag-

nosed with gender dysphoria. This Court must therefore reverse the decision of district

court.

CONCLUSION

For the reasons stated above, the court reverses the order of the district court enter-

ing summary judgment in favor of Defendant-Appellee, and remands the action to the dis-

trict court for further proceedings consistent with this Opinion and Order. The Court takes

no position regarding whether Plaintiff must ultimately be provided with gender affirma-

tion surgery, but the Garum facility must grant Plaintiff’s request to be evaluated for the

treatment.

It is so ordered.

45

Opinion Dissenting in the Judgment by CHANGhang, J.:

I disagree with the majority decision on jurisdictional grounds. Appellant has not

fulfilled his burden to show that this Court has jurisdiction over this dispute under Fed. R.

App. P. 4(c).

A prisoner’s appeal of a lower court’s ruling is subject to the notice rules under

Federal Rule of Appellate Procedure 4, requiring that the appellant file their notice of ap-

peal in a civil case within 30 days after the entry of judgment. Here, the district court issued

its entry of judgment granting Appellee summary judgment on February 1, 2021. This

means that Appellant had until March 3, 2021 to “file[] with the district court” his notice

of appeal. See Fed. R. App. P. 4(a)(1)(A). Appellant’s notice of appeal was not filed with

the district court until March 10, 2021. Instead, Appellant argues that he is entitled to the

benefit of the “prison mailbox rule,” permitting filings to be assessed for timeliness on the

day they are handed over to the jail authorities rather than on the day the district court

receives them.

Appellant is not entitled to the prison mailbox rule for two reasons. The first is

obvious: Appellant was represented by counsel Pegge throughout the entire duration of his

litigation, from complaint to appeal—including argument before this Court. While I recog-

nize the strain of the global Miasmic Syndrome pandemic—especially on those impris-

oned—neither binding case law nor the Federal Rules permit any exception to the limita-

tion that only pro se prisoners are entitled to the benefits of the prison mailbox rule. I need

not refer back to the very language cited by Judge Lagassi from Houston v. Lack which

explains, in no uncertain terms, why pro se prisoners are especially vulnerable to “lose

control over and contact with their notices of appeal.” See Houston, 487 U.S. at 273. Ap-

46

pellant is not the prisoner that the Supreme Court envisioned in 1988 when it laid the foun-

dation for amending the Federal Rules of Appellate Procedure. Indeed, any inquiry into the

circumstances before us further confirm that this situation does not warrant the leniency

afforded by the prison mailbox rule. Counsel for Appellant was not a solo practitioner—

Ms. Pegge maintained an office with other practicing attorneys who could have provided

assistance with Appellant’s filing—indeed, that was precisely how Appellant learned that

he was to submit his Notice of Appeal on his own.8 And while I recognize that the new

policies introduced at Garum during the pandemic may have limited some access to the

Garum library and computer facilities, certainly Appellant was not entirely closed off to

these resources and was, in fact, able to contact his attorney’s office for assistance. I am

aware of no case law or rule that permits a “sliding scale” analysis to determine how little

attorney involvement is required to render an inmate effectively pro se for the purposes of

the prison mailbox rule.

Additionally, Appellant’s second flaw in his filing presents yet another procedural

bar. Even assuming arguendo that the prison mailbox rule can be applied to inmates with

representation, Federal Rule of Appellate Procedure 4(c) requires that an inmate’s notice

of appeal is accompanied by “a declaration in compliance with 28 U.S.C. § 1746—or a

notarized statement—setting out the date of deposit and stating that first-class postage is

being prepaid” or “evidence (such as a postmark or date stamp) showing that the notice

8 While I sympathize with counsel’s health crisis, counsel’s excuse about his her failure

to “properly transition” his her matters does not provide a compelling argument that

Appellant was rendered effectively without proper counsel. Counsel who read this

opinion are no doubt familiar with the vast resources of law firms and are guided by

principles that members of a single law firm are “presume[d]” to “shar[e] in the confi-

dential information” pertaining to their clients. Atasi Corp. v. Seagate Tech., 847 F.2d

826, 829 (Fed. Cir. 1988).

47

was so deposited and that postage was prepaid.” Appellant’s Mailing Certificate (Ex. F)

was neither accompanied by a declaration, nor did it show that “notice was so deposited.”

It is entirely unclear from the Proof of Mailing whether this document was, in fact, Appel-

lant’s Notice of Appeal.

I respectfully dissent. Because jurisdiction is a necessary predicate to our deci-

sion, I render no opinion on Appellant’s substantive Eighth Amendment claim.

48

SUPREME COURT OF THE UNITED STATES

October Term 2021

-----

Docket No. 2021-2201

-----

MAX POSCA, Iin His Official Capacity Aas Warden and Administrator of Garum

Correctional Facility, Defendant-AppellantPetitioner,

v.

LUCAS ESCOFFIER, Plaintiff-RespondentRespondent.

Petition for certiorari is GRANTED. The Court certifies the following questions:1

1. Is an inmate that who is represented by counsel permitted to benefit from the prison

mailbox rule when submitting his notice of appeal where the inmate’s attorney is

incapacitated, and if so, has Respondent satisfactorily complied with Fed. R. App.

P. 4??

2. Is it a violation of an inmate’s Eighth Amendment right against cruel and unusual

punishment for a prison facility to impose a blanket ban against gender affirmation

surgery without permitting those inmates suffering from gender dysphoria to un-

dergo an individualized examination to demonstrate necessity for such surgery, and

then providing inmates with such surgery when found necessary?

1 The Supreme Court of the United States has certified two questions for review and

consistent with this Court’s Rule 14.1(a), “[t]he statement of any question presented is

deemed to comprise every subsidiary question fairly included therein. Only the ques-

tions set out in the petition, or [questions] fairly included therein, will be considered by

the Court.”