S EVENTY -S ECOND A NNUAL N ATIONAL MOOT C OURT C OMPETITION AMENDED RECORD ON APPEAL SUPREME COURT OF THE UNITED STATES October Term 2021 ------ Docket No. 2021-22 ------ MAX POSCA, Iin His Official Capacity Aas Warden and Administrator of Garum Correctional Facility, Defendant-AppellantPetitioner v. LUCAS ESCOFFIER , Plaintiff-Respondent.
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SEVENTY-SECOND ANNUAL
NATIONAL MOOT COURT COMPETITION
AMENDED RECORD ON APPEAL
SUPREME COURT OF THE UNITED STATES
October Term 2021
------
Docket No. 2021-22
------
MAX POSCA, Iin His Official Capacity Aas Warden and Administrator of Garum
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.
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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.”
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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