Opinion
No. 5:18-cv-49-TES-CHW
10-11-2018
ROBBIN AMANDA BAYSE, a/k/a ROBERT BAYSE, Plaintiff, v. Commissioner GREGORY DOZIER, et al., Defendants.
REPORT AND RECOMMENDATION
Before the Court is a motion for a temporary restraining order and preliminary injunction filed by Plaintiff Robbin Amanda Bayse against Defendants Commissioner of the Georgia Department of Corrections Gregory Dozier, Dr. Sharon Lewis, and Dr. Kenneth Sanford. Doc. 19. Because Plaintiff has not satisfied her burden of showing that the extraordinary remedy of preliminary injunctive relief is appropriate, Plaintiff's motion should be DENIED.
I. BACKGROUND
Plaintiff Bayse, an inmate at Valdosta State Prison, has been living as a transgender female since before entering the Georgia Department of Corrections (GDC) in February 1998. Doc. 8. Plaintiff's medical records show that a primary diagnosis of gender dysphoria as well as other diagnoses of major depressive disorder and borderline personality disorder. Doc. 31. Plaintiff has a history of anxiety and self-harm and has attempted self-castration and suicide. Docs. 8, 19, 22, 31-2. An endocrinologist determines the treatment plan for Plaintiff's gender dysphoria, and nurses at the prison administer a prescribed hormone medication, Estradiol, once a week (Doc. 31-1; Doc. 25-1, p. 2 (Declaration of Dr. Avery Moody)). Plaintiff claims to have been treated with hormone therapy by the GDC since November 2015, causing the development of "breasts, soft skin and other female secondary sex characteristics," but Plaintiff "still feel[s] trapped in the wrong body." Doc. 8. Plaintiff claims that current treatment plans for her gender dysphoria have "nothing to do" with her condition or her distress. Doc. 19, p. 2.
Plaintiff was transferred to Valdosta State Prison on May 10, 2018. Docs. 11, 11-1.
Plaintiff cites various exchanges with medical personnel since 2017 that indicate she was being referred for sex reassignment surgery (SRS):
• She claims that it was to her "knowledge, understanding and belief" that a psychiatrist at Johnson State Prison referred her for SRS in 2017.Id. at pp. 3-5. Despite these alleged referrals, Plaintiff claims that her requests for "necessary treatment," including SRS, have been refused. Id. at p. 3. In addition, Plaintiff claims that the endocrinologist cannot treat her because, although she is meant to see him every three months, her appointments have been delayed "for more than 7 to 18 months," by which time the bloodwork has expired. Doc. 22. Plaintiff also claims that her continued requests to see a "qu[a]lified physician, psychiatrist or psychologist" for SRS have been "futile." Id. She claims that the lack of treatment has caused her to become depressed, which, in turn, has caused her to develop an eating disorder. Id. Without SRS, she claims that she is being "placed at increased risk of suicide, self-mutilation and self-castration. Id.
• In September 2017, Plaintiff claims Dr. Cowen was recommending her for SRS.
• In November, Plaintiff claims Dr. Cowen told her that the surgery was "medically necessary," and that he was recommending her for SRS. She claims he told her that he would have the surgery expedited "[i]f it was up to me," and then called to set up a meeting with Defendant Lewis to discuss SRS with Plaintiff. Plaintiff was transferred to a different facility in January 2018 and, according to Plaintiff, she was "never given an answer."
• In March 2018, a psychologist at Central State Prison told Plaintiff that he was referring her for SRS.
• In April 2018, a psychologist at Baldwin State Prison similarly told Plaintiff that he was referring her for SRS.
II. REQUESTED RELIEF
Plaintiff, in her motion for a preliminary injunction and temporary restraining order, requests the following relief:
• An injunction "enjoining Defendants from interfering with the discretion of the mental health and other medical professionals";Doc. 19.
• An injunction "enjoining Defendants to provide Plaintiff with adequate medical care, including SRS"; and
• A declaration that the GDC's policy regarding the treatment of inmates with gender dysphoria and "their 'blanket policy' against SRS" is unconstitutional.
III. LEGAL STANDARD
"The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated." Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001) (internal quotation omitted); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In determining whether preliminary injunctive relief is appropriate, "courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id. (internal quotation omitted). A court may grant a preliminary injunction only if the movant clearly establishes the burden of persuasion as to each of the following four prerequisites:
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.Four Seasons Hotels and Resorts, B.V., v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003).
IV. DISCUSSION
Because Plaintiff has failed to establish the burden of persuasion as to each of the four elements required for a preliminary injunction, her request for preliminary injunctive relief should be DENIED.
A. Forms of Injunctive Relief
Although phrased as a request for both a temporary restraining order and a preliminary injunction, Plaintiff's motion can properly be interpreted as a request for a preliminary injunction only. Under Rule 65 of the Federal Rules of Civil Procedure, a temporary restraining order is generally an ex parte device that may be issued without notice to the adverse party and lasts for the short period of 14 days, whereas a preliminary injunction may be issued only on notice to the adverse party. The same standard for determining whether to grant a preliminary injunction applies to a request for a temporary restraining order. See Morgan Stanley DW, Inc. v. Frisby, 163 F. Supp. 2d 1371, 1374 (N.D. Ga. 2001) (citing Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995)).
Unlike Plaintiff's request for a preliminary injunction to "enjoin[] Defendants from interfering with the discretion of the mental health and other medical professionals," which is a request for a prohibitory injunction, Plaintiff's request for a preliminary injunction enjoining Defendants to provide her with "adequate medical care, including SRS" (Doc. 19) should be considered a mandatory injunction. "A mandatory injunction requires a defendant to do some positive act, as opposed to a standard preliminary injunction where a defendant is ordered to stop doing something or not to do something." Dantzler, Inc. v. Hubert Moore Lumber Co., No. 7:13-CV-56 HL, 2013 WL 2452697, at *1 (M.D. Ga. June 5, 2013); see also Redding v. Fanning, No. 5:14-CV-407(MTT), 2015 WL 9991768, at *1 (M.D. Ga. Oct. 14, 2015) (citing Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1101 n.13 (11th Cir. 2004)) ("A prohibitory preliminary injunction is an order 'issued to preserve the status quo and prevent allegedly irreparable injury until the court ha[s] the opportunity to decide upon issuing a permanent injunction.'"). A mandatory injunction, "which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored." Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976). In fact, "[a] mandatory injunction of this nature, especially at the preliminary stage of proceedings, should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party." Miami Beach Fed. Sav. & Loan Ass'n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958). To the extent that Plaintiff requests that the Court require Defendants to provide her with surgery and other "adequate medical care," Plaintiff has asked for a mandatory injunction, and, as such, the request should be scrutinized more heavily.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. --------
B. Substantial Likelihood of Success on the Merits
First, a preliminary injunction is inappropriate here because Plaintiff has not shown that she has a substantial likelihood of succeeding on the merits. Plaintiff has brought suit against Defendants under 42 U.S.C. § 1983, claiming that Defendants violated the Eighth Amendment in that by denying her requests for SRS, they were deliberately indifferent to her medical needs. Doc. 1, pp. 16-17.
To establish a prison official's deliberate indifference to the medical needs of an inmate, a plaintiff must satisfy both an objective and a subjective component. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). See generally Estelle v. Gamble, 429 U.S. 97 (1976). Regarding the objective component, a prisoner must allege (1) an objectively serious medical need that, if left unattended, poses a substantial risk of serious harm, and (2) that the prison official's response to that need was poor enough to constitute "an unnecessary and wanton infliction of pain, and not merely accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice actionable under state law." Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (quotations, alterations, and citations omitted). For example, in Barnes v. Martin County Sheriff's Department, the Eleventh Circuit, in an unpublished opinion, held that the Plaintiff failed to meet the objective component's second prong because prison medical staff had examined the Plaintiff numerous times over a five-month span and had prescribed the Plaintiff medications. 326 F. App'x 533, 535 (11th Cir. 2009).
Regarding the subjective component, the inmate-plaintiff must prove three facts: "(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct that is more than mere negligence." Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). A prison official's conduct is more than mere negligence where the plaintiff can show: "(1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all." Barnes, 326 F. App'x at 535 (citing Brown, 387 F.3d at 1351).
Objectively, it is substantially likely that Plaintiff has serious medical needs. A serious medical need is considered "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Melton v. Abston, 841 F.3d 1207, 1221-22 (11th Cir. 2016) (citations omitted). Plaintiff has been medically diagnosed with gender dysphoria, which, according to the medical records, has resulted in several incidents of self-harm and depression. See, e.g., Docs. 31, 31-2. To treat this condition, Plaintiff has been prescribed with and undergone hormone therapy. Doc. 31-1. Plaintiff has, therefore, shown a serious medical need that, if left unattended, poses a risk of serious harm, namely, self-harm and possibly suicide.
At this early stage in the proceedings, however, Plaintiff has failed to show that prison officials' response to her serious medical needs was poor enough to constitute "an unnecessary and wanton infliction of pain." See Taylor, 221 F.3d at 1258. Plaintiff has not shown, by affidavit or otherwise, that she has been recommended SRS by any medical professional, nor has she shown that her current treatment plan of hormone therapy is inadequate. In fact, Plaintiff's current treating physician, by way of an affidavit, states that he is "not aware" of "any determination, finding, or statement by a medical or mental health provider that SRS is medically necessary for her condition." Doc. 25-1.
Furthermore, Plaintiff has not shown that Defendants' conduct amounted to more than mere negligence, if that. Although Plaintiff claims that the current treatment plan for her gender dysphoria has "nothing to do" with her condition or her distress (Doc. 19, p. 2), suggesting that her care might be considered "grossly inadequate," see Barnes, 326 F. App'x at 535 (citing Brown, 387 F.3d at 1351), Plaintiff has presented no evidence to support this assertion other than her own statements. In fact, her claim that she is being denied access to an endocrinologist is contradicted by the medical record, which states that she was seen by an endocrinologist on March 28, 2018. Doc. 31-2, pp. 5-6. The record also shows that Plaintiff is receiving weekly hormone medication, and the record does not indicate that the endocrinologist found her current treatment inadequate. Doc. 31-1. Therefore, it is unclear from the record whether SRS will in fact "attend," see Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000), to her serious medical needs.
As Plaintiff has failed to show that she will likely succeed on the merits on her Eighth Amendment claim, the injunctive relief she requests should be denied.
C. Irreparable Injury
"[E]ven if Plaintiff[] establish[es] a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). Plaintiff claims that "Defendants' continued denial of SRS is causing irreplaceable harm to Plaintiff, including severe anxiety and depression as a result of the discrepancy between her remaining male sex characteristics, including non-funct[ion]ing male genitalia, and her female gender identity." Doc. 19, p. 6. She claims that SRS is required to alleviate the "severe and emotional pain" she experiences as a result. Id. At this stage of the proceedings, and in light of the heightened scrutiny the Court must place on mandatory injunctive relief, see Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976); Miami Beach Fed. Sav. & Loan Ass'n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958), Plaintiff has failed to show that she will suffer irreparable harm absent a preliminary injunction from this Court.
It is unclear whether SRS will alleviate the harm Plaintiff alleges she will suffer absent an injunction. As discussed, Plaintiff has presented no evidence, other than her own statements, that SRS is medically necessary. Nor has she shown that her current treatment of hormone therapy is inadequate. Furthermore, Plaintiff's delay in seeking a preliminary injunction undercuts her claim that she will suffer irreparable injury if she is denied immediate surgery. Plaintiff filed her complaint on February 7, 2018, and filed this motion for a preliminary injunction almost five months later on July 29. It appears that very little has changed in her condition since she filed her complaint, as she sought the same equitable remedies in her complaint that she now seeks in this motion. However, Plaintiff did not allege in her complaint the immediacy she alleges now. For these reasons, her delay in seeking a preliminary injunction militates against a finding of irreparable harm. See Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016) (emphasizing that a preliminary injunction requires a showing of "imminent" irreparable harm, and that a delay of "even only a few months" militates against a finding of such harm).
As Plaintiff has not shown that she will suffer irreparable harm absent a preliminary injunction from this Court, the injunctive relief she requests should be denied.
D. Weighing the Threatened Injury to the Movant Against Damage to the Opposing Party, and Adversity to the Public Interest
Plaintiff asks the Court to require Defendants, effectively the GDC and the State of Georgia, to provide her with SRS in the face of no evidence that any medical provider has referred her for surgery. Because Plaintiff has failed to show that she will suffer imminent irreparable harm if her request for a preliminary injunction is denied, the balance of hardships weigh strongly in Defendants' favor.
"It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons." Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973); see also Pope v. Hightower, 101 F.3d 1382, 1385 n.2 (11th Cir. 1996) (citing Lewis v. Casey, 518 U.S. 343, 361-63 (1996)) ("Federal courts must scrupulously respect the limits on their role by not thrusting themselves into prison administration; prison administrators must be permitted to exercise wide discretion within the bounds of constitutional requirements."). In adherence to the principles of federalism that "limit the Federal Judiciary's exercise of its equitable powers in all instances," Lewis, 518 U.S. at 386, this Court should show due deference to the decisions of Georgia's prison officials, especially in light of the lack of evidence presented by Plaintiff at this stage in the proceedings, and deny the injunctive relief requested by Plaintiff.
CONCLUSION
With regard to Plaintiff's request for a mandatory injunction requiring Defendants to provide her with SRS, her request for a prohibitory injunction enjoining Defendants from interfering with the discretion of the prison's medical professionals, and her request for a declaration that the GDC's policy is unconstitutional, Plaintiff has not satisfied her burden of showing that the extraordinary remedy of preliminary injunctive relief is appropriate. Therefore, it is RECOMMENDED that Plaintiff's motion for temporary restraining order and preliminary injunction should be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 11th day of October, 2018.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge