On December 2, 2004, Thomas Lamb’s case came before the Kansas Parole Board. Lamb, a convicted rapist, murderer and kidnapper, had provided the Board with several letters vouching for his fitness for parole and his need for sexual reassignment treatment. The Board made the following findings:
“After considering all statutory factors … the decision of the Kansas Parole Board is: Pass to September 2009. Rec: individual therapy for any ongoing issues regarding Axis I diagnosis. Pass reasons: serious nature and circumstances of crime, violent nature of crime, two (2) times in prison, failure on parole, objections regarding parole. Extended pass reasons: Inmate has been sentenced for a class A or B felony or an off grid felony and the board makes a special finding that a subsequent parole hearing should be deferred for 5 years, because it is not reasonable to expect that parole would be granted at a hearing if held before then, for the reasons indicated below: Offender has three consecutive life sentences.”
Lamb appealed, alleging that the Board acted vindictively in recommending he seek therapy for Gender Identity Disorder (GID) in light of Lamb’s inability to obtain sexual reassignment surgery, female hormone therapy, or real life experiences living as a member of the opposite gender while incarcerated.
The district court denied the petition without a hearing. The court held the Board had not acted vindictively and, in fact, the Board’s recommendation that Lamb seek therapy for his GID indicated the Board was sensitive to Lamb’s condition. Lamb appealed again.
Lamb claimed the Board acted arbitrarily and capriciously because (1) no evidence was presented to contradict Lamb’s letters of support; and (2) the Board recommended he receive counseling for GID, but he is unable to obtain proper treatment while he is incarcerated.
The court affirmed the Board’s decision based on the serious nature of Lamb’s crime, his recidivism, his prior failure on parole, and the objections raised to his parole.
As for Lamb’s diagnosis with GID, since the condition was not considered a basis to deny parole, it cannot provide a basis to find the Board acted arbitrarily or capriciously. Moreover, the Board did not indicate Lamb would have to seek treatment for his GID in order to be eligible for parole in 2009.
Lamb claims the Board’s failure to parole him so that he maypursue sexual reassignment treatment is shocking and intolerable, and thus was a mistreatment of a constitutional stature. He cites Kosilek v. Maloney, 221 F.Supp. 2d 156, 165-67 (D. Mass. 2002), which examined and confirmed the legitimacy of transsexualism as a serious medical condition and sexual reassignment surgery as an effective treatment for this condition.
However, consideration of this issue is inappropriate in a petition attacking a decision of the Board. The Department of Corrections is responsible for the policy that prevents Lamb from receiving sexual reassignment treatment. Although the Board may, in its discretion, grant parole for hospitalization, it is not required to do so. In order for the denial of medical care to reach the level of shocking and intolerable mistreatment of a constitutional stature, the petitioner must demonstrate acts or omissions sufficiently harmful to evidence deliberate indifference to his or her serious medical needs. Lamb did not allege that prison officials were deliberately indifferent to his condition; therefore, the district court correctly dismissed the petition.