John H. Balsewicz, a.k.a. MELISSA BALSEWICZ v. KEVIN KALLAS, M.D. and CYNTHIA OSBORNE

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2023 *
Decided July 25, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-3307
JOHN H. BALSEWICZ, a.k.a. MELISSA
BALSEWICZ
Plaintiff-Appellant,
v.
KEVIN KALLAS, M.D. and CYNTHIA
OSBORNE,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 19-cv-806-wmc
William M. Conley,
Judge.
O R D E R
Melissa Balsewicz, whose legal name is John Balsewicz, is a transgender prisoner
in Wisconsin. She sued prison psychologists and officials from the Wisconsin
Department of Corrections under 42 U.S.C. § 1983, alleging that they violated her First
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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and Eighth Amendment rights when they delayed her receipt of hormone therapy. The
district court entered summary judgment for the defendants, and we affirm.
We review the record in the light most favorable to Balsewicz, drawing
reasonable inferences in her favor. Munson v. Newbold, 46 F.4th 678, 681 (7th Cir. 2022).
During the relevant times, Balsewicz was housed at either Waupun Correctional
Institution or Wisconsin Resource Center, which is a specialized mental health facility.
In 2016, Balsewicz requested hormone therapy and, after a psychological assessment,
received a provisional diagnosis of gender dysphoria. Dr. Kevin Kallas, the Mental
Health Director at the Department of Corrections, decided on a cautious treatment plan
because of Balsewicz’s unstable recent mental-health history but noted that Balsewicz
should be housed in a facility appropriate for prisoners with gender dysphoria.
Dr. Kallas also referred Balsewicz for consultation with a transgender expert, Cynthia
Osborne.
Osborne met with Balsewicz in February 2017, and confirmed the diagnosis of
gender dysphoria. Osborne reviewed Balsewicz’s mental health records dated from
2012 to 2017, which described failed attempts at dialectical behavioral therapy (DBT).
Because of Balsewicz’s ongoing psychiatric instability, including three suicide attempts
in December 2016, Osborne recommended delaying hormone therapy until Balsewicz
demonstrated sustained cooperation with psychological treatment. In her report,
Osborne suggested re-evaluating the suitability of hormone therapy in a year.
Osborne reviewed Balsewicz’s psychiatric treatment records in early 2018 to
determine if she should schedule another consultation. Since their previous meeting,
Balsewicz had seen mental health providers on 13 occasions and had no further
incidents of self-harm. Osborne emailed Dr. Kallas for his input and noted that
Balsewicz had apparently not received regular treatment because of staffing issues, not
a failure to cooperate. Osborne also mentioned that the clinical notes suggested that
Balsewicz might have “filed some lawsuits,” which did not “create a great context for
treatment.” Dr. Kallas responded that he would place Balsewicz on the list for re-
evaluation.
Osborne re-evaluated Balsewicz in April 2018. In her summary of that meeting,
she reported that Balsewicz had taken her recommendations seriously but noted that
Balsewicz just recently had a physical fight with a peer and made threats towards staff.
Osborne also noted that Balsewicz had filed two civil suits against prison officials.
Osborne concluded that it would be reasonable to begin hormone treatment for
Balsewicz but stated that her cooperation with treatment providers was critical to her

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treatment. Based on Osborne’s report, Dr. Kallas conditionally approved hormone
therapy but decided to reassess Balsewicz’s cooperation in a few months. After
consulting psychiatric staff, Dr. Kallas approved hormone therapy for Balsewicz in
September 2018.
Balsewicz sued Dr. Kallas, Osborne, and some psychological clinicians, alleging
that they intentionally delayed and interfered with the hormone therapy needed to treat
her gender dysphoria, at least in part to punish her for lawsuits against prison officials.
The district court screened her complaint, see 28 U.S.C. § 1915A, and dismissed the
claims against anyone who lacked the authority to approve or begin her hormone
therapy. The court allowed Balsewicz to proceed with a First Amendment retaliation
claim against Dr. Kallas, and an Eighth Amendment deliberate indifference claim
against Osborne and Dr. Kallas. It did not recognize any pattern-or-practice or Monell
claim in Balsewicz’s allegations. See generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691–92 (1978).
The parties filed cross motions for summary judgment. Balsewicz argued that the
World Professional Association for Transgender Health (WPATH) Standards of Care
allowed for immediate hormone treatment despite coexisting mental health concerns.
Osborne responded that the standards provide that coexisting mental health concerns
may not preclude hormone therapy, but they must be “reasonably well controlled”
before or concurrently with gender dysphoria treatment. Dr. Kallas, in turn, argued that
as an administrator, he often accepted recommendations from Osborne, a specialist.
The court entered summary judgment for the defendants and denied Balsewicz’s
cross-motion. The court explained that a reasonable jury could not find that Dr. Kallas
and Osborne were deliberately indifferent to Balsewicz’s serious medical needs or that
Dr. Kallas had based his treatment decisions on his knowledge of Balsewicz’s lawsuits
against other prison officials. The court also noted that Balsewicz inserted a potential
Monell claim into her briefing by asserting that the Department has a de facto policy of
delaying or denying treatment for transgender prisoners. But because “it [was] far too
late to introduce those claims now,” the court did not address the supposed policy.
On appeal, Balsewicz contends that she raised a genuine issue of material fact
about whether Dr. Kallas and Osborne inappropriately withheld hormone therapy for
non-medical reasons, including her threatening of staff, fighting with peers, and specific
to Dr. Kallas, filing other lawsuits. We review the summary judgment decision de novo.
Munson, 46 F.4th at 681.

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Beginning with the Eighth Amendment claims, the parties agree that Balsewicz’s
gender dysphoria is a serious medical condition; therefore, for her claims to survive
summary judgment, she needed evidence that the defendants knew she faced a
substantial risk of serious harm and disregarded it by failing to take reasonable
measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Munson, 46 F.4th at 681.
Here, Balsewicz lacked evidence of either defendant’s deliberate indifference.
First, Balsewicz did not raise a dispute about Osborne’s state of mind in waiting
to recommend hormone therapy. She argues that Osborne’s recommendation that she
achieve psychiatric stability before receiving hormone treatment goes against the
WPATH Standards of Care, which outline criteria for hormone therapy eligibility. See
Campbell v. Kallas, 936 F.3d 536, 538–39 (7th Cir. 2019). But, to the extent those standards
matter for the purpose of an Eighth Amendment claim, Osborne acted in line with their
suggestion that other significant mental health concerns be reasonably well controlled
before hormone therapy begins. Balsewicz had attempted suicide three times just two
months before Osborne’s first evaluation of her. Osborne specifically linked the delay in
hormone therapy to a need to address this urgent issue, and Balsewicz did not come
forward with any evidence of a different motivation for the decision. Therefore, a
reasonable jury could not conclude that Osborne acted with deliberate indifference
when she recommended delay based on Balsewicz’s mental health status. Id. at 549.
Likewise, Dr. Kallas’s decision to follow Osborne’s recommendation to wait a
year to approve hormone therapy does not amount to deliberate indifference. There is
not yet a “typical length” of time for initiating such treatment for a prisoner. See Mitchell
v. Kallas, 895 F.3d 492, 500 (7th Cir. 2018). Much of Balsewicz’s evidence for what she
considers undue delay is the inconsistency of her DBT sessions, which were meant to
stabilize her conditions to ready her for hormone treatment. Nothing in the record
suggests that Dr. Kallas was responsible for the delayed DBT treatment sessions or
otherwise ignored a known risk to Balsewicz’s health. See Munson, 46 F.4th at 681. In
any event, the missed DBT sessions did not prevent Dr. Kallas from authorizing a
second consultation with Osborne. Dr. Kallas also followed up with staff members
about Balsewicz’s treatment, and he eventually approved hormone therapy for her,
basing his final decision on her improved cooperation. On this record, no reasonable
jury could find that Dr. Kallas acted with deliberate indifference. See Wilson v. Adams,
901 F.3d 816, 821 (7th Cir. 2018).
Next, Balsewicz’s contention that Dr. Kallas delayed her treatment in retaliation
for filing lawsuits against other prison officials is unsupported by the record. For her

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First Amendment claim to withstand summary judgment, Balsewicz had to furnish
evidence that her lawsuits were a motivating factor for Dr. Kallas’s decision to defer
hormone treatment. See Manuel v. Nalley, 966 F.3d 678, 681 (7th Cir. 2020). The only
evidence that Balsewicz offers is what she considers “suspicious timing”: Dr. Kallas did
not approve hormone therapy after Osborne mentioned Balsewicz’s legal history in
both her assessments and also noted to Dr. Kallas that Balsewicz had “filed some
lawsuits.” This establishes Dr. Kallas’s knowledge of the lawsuits, but it says nothing of
his motivation. Suspicious timing alone is rarely enough to establish a retaliatory
motive. Id. Balsewicz also had to provide evidence that she suffered a deprivation
severe enough to deter future protected activity. See Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009). Despite Osborne’s references to lawsuits, Dr. Kallas instructed her to
schedule a second evaluation, and he then approved the hormone therapy. Balsewicz
has not shown, therefore, that Dr. Kallas deprived her of treatment or otherwise
committed a retaliatory act.
In her last challenge to the summary judgment decision, Balsewicz states that,
because she did not have access to an expert witness, the court unfairly determined that
she could not refute medical evidence with her own opinions about her medical needs.
Arguments raised for the first time on appeal are waived. Williams v. Rajoli, 44 F.4th
1041, 1047 (7th Cir. 2022). Balsewicz admits that she did not ask the court to provide her
with expert assistance or appoint a neutral expert, so we will not address that argument
in the first instance.
Finally, at screening, the district court did not improperly “ignor[e]” a claim
about an unwritten policy of delay. The court was required to review Balsewicz’s
complaint, “identify cognizable claims,” and allow only those claims that were
supported by well pleaded facts to move forward. 28 U.S.C. § 1915A. The court did not
identify a Monell claim against the defendants—all individuals sued in their personal
capacities—and Balsewicz never moved to amend her complaint. She could not add
claims based on new facts in her summary judgment filings, see Anderson v. Donahoe,
699 F.3d 989, 998 (7th Cir. 2012), and she cannot do so on appeal, see Wagner v. Teva
Pharm. USA, Inc., 840 F.3d 355, 359–60 (7th Cir. 2016).
AFFIRMED

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