Qz'Etax v. Ortiz, 10th Cir. (2006)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
March 3, 2006
Elisabeth A. Shumaker
Clerk of Court
ZARISSA LIRIEL QZETAX, also

known as Sean Dorn,
Plaintiff-Appellant,
v.
No. 05-1316
(D.C. No. 04-CV-377-WYD-CBS)
JOE ORTIZ, Executive Director of the

Colorado Department of Corrections;
JAMES MICHAUD, Chief Mental
Health Officer of the Colorado
Department of Corrections; MARK
DIAMOND, Chief Medical Officer of
the Colorado Department of
Corrections,
(D. Colo.)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, McKAY, and EBEL, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
The case is therefore ordered submitted without oral argument.

This is a pro se state prisoner civil rights appeal. Appellant, a Colorado
inmate, asserted three 42 U.S.C. 1983 civil rights claims against employees of
the Colorado Department of Corrections (CDOC). The claims relate to CDOC
Administrative Regulation 700-14 (A.R. 700-14), which addresses the medical
treatment of prisoners with gender identity disorder. First, Appellant claims that
A.R. 700-14 both facially, and as applied to her individually, violates the Eighth
Amendment by being deliberately indifferent to a transsexual prisoners need for
medical treatment. Second, Appellant claims that application of A.R. 700-14
violates the Equal Protection Clause because (1) it treats inmates who were
diagnosed and treated for gender identity disorder prior to their incarceration
differently from those who were not, and (2) it treats prisoners with gender
identity disorders differently from prisoners who suffer from other ailments.
As to Appellants Eighth Amendment claims, the magistrate judge stated
that [a]lthough Plaintiff [Appellant] has sufficiently stated in her Complaint that
gender identity disorder is an objectively serious medical condition, she has not
stated with sufficiency how A.R. 700-14 as enacted by Defendant Ortiz is
deliberately indifferent to the condition. . . . [A] mere difference in opinion
regarding the proper course of treatment is not tantamount to deliberate
indifference. Recommendation, 5-6 (Apr. 27, 2005, D. Colo.). The magistrate
-2-
judge also noted that Appellant had been provided treatment for her condition
while in prison.
Equal Protection claims, like this one, that do not involve a fundamental
right or suspect classification, are subject to a rational basis review. See Brown v.
Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (affirming the dismissal of an equal
protection claim alleging the denial of estrogen treatment to a transsexual
prisoner). The magistrate judge stated that [r]easonably conceivable facts
demonstrate a rational basis for the policys different treatment of inmates who
were taking hormonal medications prior to incarceration versus those who were
not and recommended that this claim of Appellant also be dismissed.
Appellant filed an objection to the magistrate judges recommendation that
her action be dismissed with prejudice. The district court therefore conducted a
de novo review of the magistrate judges determination and affirmed and adopted
the recommendations of the magistrate judge. Order Affirming and Adopting
United States Magistrate Judges Recommendation (June 14, 2005, D. Colo.).
In addition, the district court issued an order denying Appellants leave to
proceed on appeal, stating that [p]ursuant to 28 U.S.C. 1915(a)(3), the court
finds that this appeal is not taken in good faith because plaintiff has not shown
the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal. Order Denying Leave to Proceed on
-3-
Appeal Pursuant to 28 U.S.C. 1915 and Fed. R. App. P. 24 (July 20, 2005, D.
Colo.). While we have not yet determined whether the standard of review of an
order denying leave to appeal under 1915 is de novo or abuse of discretion, we
would reach the same decision under either standard in this case and affirm the
district courts denial of leave to appeal. See Plunk v. Givens, 234 F.3d 1128,
1130 (10th Cir. 2000).
Appellants motion to proceed without prepayment of fees is granted.
Appellant is reminded that she must continue making partial payments until the
filing fee is paid in full.
Finally, we have no objection to Appellants motion for the continued
usage of proper female pronouns and will continue to use them when referring to
her.
We have carefully reviewed the briefs of Appellant and Appellee, the
magistrate judges recommendation, the district courts disposition, and the record
on appeal. We are in accord with the district courts dismissal and its denial of
leave to appeal, and for substantially the same reasons set forth by the district
court in its Order Affirming and Adopting United States Magistrate Judges
Recommendation of June 14, 2005, we AFFIRM the district courts dismissal
with prejudice of Appellants 1983 complaint.
Entered for the Court
-4-
Monroe G. McKay
Circuit Judge
-5-

Qz'Etax v. Ortiz, 10th Cir. (2006)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ZARISSA LIRIEL QZETAX, also

JOE ORTIZ, Executive Director of the

The case is therefore ordered submitted without oral argument.

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