Opinion
Civil Action 6:21-3053-JD-KFM
11-18-2022
Gary Boone, aka Valerie Boone, Plaintiff, v. Michael Carvajal, Director of Federal Bureau of Prisons; A. Mendoza, Warden of FCI Williamsburg; K. Nolte, Health Service Administrator at FCI Williamsburg; S. Hoey, Medical Provider at FCI Williamsburg; C. Davis, Nurse Practitioner at FCI Williamsburg; Dr. Figueroa, Chief Psychologist at FCI Williamsburg; and Dr. Laxton, Psychologist at FCI Williamsburg, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the plaintiff's motion for a temporary restraining order ("TRO") and preliminary injunction (doc. 75) and motion to compel (doc. 81). The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2) (D.S.C.), all pretrial matters in this case were referred to the undersigned United States Magistrate Judge for consideration.
In Bivens, the Supreme Court of the United States established a cause of action against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Id. See also Osabutey v. Welch, 857 F.2d 220, 221-23 (4th Cir. 1988).
I. BACKGROUND AND FACTS PRESENTED
The plaintiff is a 72-year-old transgender woman and is currently serving a life sentence at Federal Correctional Institution Butner ("FCI Butner"), a low security male facility in Butner, North Carolina (docs. 1 ¶ 12; 29 at 8; 27). During many of the events in question, however, the plaintiff was incarcerated at Federal Correctional Institution Williamsburg ("FCI Williamsburg"), a medium security male facility in Salters, South Carolina (doc. 1 ¶ 19). The plaintiff filed suit against officials at FCI Williamsburg based on the lack of medical treatment she has received for her gender dysphoria ("GD") (see generally id.).
A. The BOP's Policies
The Bureau of Prisons ("BOP") possesses discretion over decisions regarding the designation of inmates to a particular prison facility. See 18 U.S.C. § 3621(b). In making inmate designation decisions, the BOP "may designate any available penal or correctional facility that meets the minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable[,]" considering a number of factors. Id. The defendants provided a declaration from Ashley Noble (“Ms. Noble”), the National Policy and Program Coordinator for the BOP, who states that the BOP created the Designation & Sentence Computation Center ("DSCC") to centralize all determinations regarding inmate institution designations (doc. 85, Noble decl. ¶ 9). The BOP also issued Program Statement 5100.08, Inmate Security and Custody Classification ("Program Statement") to guide staff in designating inmates (id.). The Program Statement directs DSCC staff to consider three “primary factors” when making a designation decision: “(1) the level of security and supervision the inmate requires; (2) the level of security and staff supervision the institution is able to provide; and (3) the inmate's program needs” (id.). With respect to transgender inmates, the BOP also considers several other authorities. Specifically, 28 C.F.R. § 115.42 provides as follows:
In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems.Id. § 115.42(c). Moreover, as discussed in the undersigned's report and recommendation filed on June 28, 2022, regarding the defendants' motion to dismiss, the BOP has promulgated several program documents that govern the placement and provision of care of transgender inmates, including the Transgender Offender Manual ("Manual"), which ensures that the BOP "properly identifies, tracks, and provides services to the transgender population” (docs. 29-1; 85, Noble decl. ¶ 4). The Manual outlines different groups within the BOP responsible for addressing various aspects of transgender inmates' needs (docs. 29-1 at 4-6; 85, Noble decl. ¶ 4). For example, the Transgender Executive Council ("TEC") "is the agency's official decision-making body on all issues affecting the transgender inmate population" and is responsible for "meet[ing] a minimum of monthly to offer advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with GD, including training, designation issues, and reviewing all transfers for approval" (docs. 29-1 at 5; 85, Noble decl. ¶¶ 4-6). The Manual also contains provisions concerning housing and programming assignments for transgender inmates who desire to transfer facilities as a part of their transition:
In situations where the transfer request is related to progressing the individual inmate's transition (i.e., transfer to a different sex facility)[,] the TEC will consider the case. Prior to considering the case, the Warden will submit documentation to the TEC showing the inmate has met the minimum standards of compliance with programs, medications and mental health treatment, and meeting hormone goal levels. Ordinarily, inmates will not be submitted to the TEC for consideration until they have maintained one year clear conduct for 100 and 200
series incident report sanctions, though they may be considered for submissions on a case-by-case basis by the Warden, as appropriate.(Docs. 29-1 at 7-8; 85, Noble decl. ¶¶ 4, 9).
Additionally, the Manual addresses requests for gender-affirming surgery and states that "surgery may be the final stage in the transition process and is generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender affirming facility," which is a facility for individuals of the inmate's preferred gender (docs. 29-1 at 10; 85, Noble decl. ¶ 14). The Manual provides that once the one-year period at the gender-affirming facility is complete, an inmate may submit a surgery request to the warden, who will forward the request to the TEC (docs. 29-1 at 10; 85, Noble decl. ¶ 14). If the TEC determines that all milestones and goals for surgical consideration are satisfied, the TEC will refer the request to the medical director for medical consideration (docs. 29-1 at 10; 85, Noble decl. ¶ 14). The medical director will then make an individualized determination as to whether gender-affirming surgery is appropriate for the individual inmate, and, if so, refer the matter to a surgeon (doc. 29-1 at 10). Ms. Noble states in her declaration that this twelve-month requirement is intended to allow time for an inmate to adjust, socially transition, and consolidate one's gender identity in relationship to peers, in accordance with the World Professional Association for Transgender Health's (“WPATH”) Standards of Care emphasizing the importance of social adjustment before performing irreversible anatomic surgery (doc. 85, Noble decl. ¶ 15). Ms. Noble also provides that this twelve-month requirement allows the BOP to evaluate whether the inmate will be able to successfully stay in gender-affirming housing long-term, which is “crucial from a correctional perspective given the need to house the inmate safely and securely” (Id.).
B. The Plaintiff's Treatment
The plaintiff submits that she first requested medical treatment to alleviate symptoms of her GD in 2016 and first requested gender-affirming surgery in August 2017 (doc. 1 ¶ 15). The plaintiff was subsequently prescribed hormone therapy as treatment (id. ¶ 16). In March 2018, the plaintiff was transferred to Federal Correctional Institution McKean ("FCI McKean") in Pennsylvania (Id. ¶ 17). The plaintiff submits that she reasserted her request for gender-affirming surgery there, but she received no response (Id.). On July 29, 2018, while at FCI McKean, the plaintiff was observed by a correctional officer cutting her arms with an unknown object (Id. ¶ 18; doc. 1-3 at 10). The correctional officer notified FCI McKean medical personnel, who responded and escorted the plaintiff out of her cell for examination (doc. 1-3 at 10). The plaintiff submits that she was then placed on suicide watch (doc. 33 at 4).
On July 12, 2019, the plaintiff was transferred to FCI Williamsburg (doc. 1 ¶ 19). While at FCI Williamsburg, the plaintiff received hormone therapy and psychological counseling for her GD (Id. ¶ 20). Moreover, Dr. Figueroa, the chief psychologist at FCI Williamsburg, increased the plaintiff's mental health care level from level one to level two (Id.). The plaintiff contends that she submitted multiple requests to staff for gender-affirming surgery in August of 2019 (Id. ¶ 21; doc. 1-3 at 12-13). The plaintiff alleges that she was interviewed at medical services by C. Davis ("Nurse Davis"), a nurse practitioner, on August 26, 2019, to discuss her request for gender-affirming surgery and instructions on the procedural requirements (doc. 1 ¶ 22). During this interview, the plaintiff alleges that Nurse Davis informed her that the BOP's policies were vague but that she must complete at least one year of hormone therapy and then submit a request to the warden for the surgery, which would be submitted to the TEC (Id.). Nurse Davis also told the plaintiff to start this process with the associate warden (Id.).
The plaintiff then sent a “Request to Staff” message to the associate warden on August 27, 2019, indicating that she had completed several years of hormone therapy and requesting the gender-affirming surgery (doc. 1 ¶ 22; doc. 1-3 at 14). The plaintiff also submitted other various messages to staff around this time frame, including a message that the refusal to process her request for gender-affirming surgery was a violation of the law; a request for a comprehensive mental and medical health assessment to determine which treatments and services would properly aid in her transition, feminine image projecting, and GD symptoms; a request for voice feminization; and messages noting that her hormone therapy was ineffective in treating her symptoms and indicating that she suffered from "thoughts of self-harm, suicide, and castration" (docs. 1 ¶¶ 26-30; 1-3 at 17-25).
In a journal entry dated May 26, 2020, the plaintiff wrote that Dr. Laxton, a psychologist at FCI Williamsburg, informed her that the TEC had decided that she would be sent to a low security facility in 12 months as the next step of her transition, with hopes of subsequently transferring her to a female facility after one year in the low security facility (doc. 1-3 at 26, 28). The plaintiff documented that she told Dr. Laxton that her not receiving the treatment she needs for another year was "a major violation of the law" (Id. at 26). The plaintiff also "assured Dr. Laxton that at this time I am under control - that as she knows -my symptoms are cyclical depending upon untold factors/triggers" (Id.). Further, on June 2, 2021, more than one year after the plaintiff's conversation with Dr. Laxton, the plaintiff contends that Dr. Figueroa and Dr. Laxton informed her that, because of COVID-19, she would not be transferred to a low security facility (Id. at 29). The plaintiff alleges that she was also not provided any information about what the next step in the process would be (Id.). The plaintiff submits that Dr. Figueroa and Dr. Laxton's reliance on COVID-19 as a reason for not transferring her to a low security facility was false because COVID-19 was in low transmission around this time but in a higher transmission when she was subsequently transferred (Id.; doc. 49 at 6).
On February 19, 2021, the plaintiff met with Dr. Hoey, who documented that the plaintiff was "doing well clinically," was in a good mood, and did not report suicidal ideations (doc. 1-3 at 30). Dr. Hoey also documented as follows:
All labs and recent medical information was shared with pt. at length; this in preparation for discussion of "Gender Reassignment Surgery" being requested. It was explained quite candidly and objectively to pt. that [gender-affirming surgery] is, for all intents and purposes, an elective, non-life saving, essentially cosmetic surgery being requested in a 70 year old, though "well" individual; [s]he agrees with this assessment, but is willing to assume the risk/benefit ratio as explained in detail to [her]. (She) appears to be very rational and thoughtful regarding this request, and has exhausted all administrative remedies so far available, according to 01/12/2021 response from Regional Director, SERO, and has been directed to pursue further efforts via HSU. Therefore, Surgical Consult will be written, to be addressed by RMD.(Id.).
On June 4, 2021, the plaintiff contends that she sent a follow-up inquiry to Dr. Hoey regarding the status of the surgical consult request (doc. 1-3 at 31). Dr. Hoey replied, "Psychology staff should be able to aid with direction at this point. If not then the [assistant warden] may be able to help" (Id.). The plaintiff asserts that she then reached out to psychology staff, and Dr. Figueroa and Dr. Laxton informed her that they do not assess requests for medical procedures (doc. 1 ¶ 36). The plaintiff contends that she thereafter delivered a request to the associate warden on June 25, 2021, but she never received a response (Id.).
During this time period, the plaintiff also sought gender-affirming surgery through the BOP's formal administrative remedy program. On May 18, 2020, the plaintiff filed a "Documentation of Informal Resolution Attempt" form regarding not being provided with gender-affirming surgery and alleging that not being provided with this surgery put her in "imminent danger of self[-]harm, genital castration, and suicide" (doc. 1-4 at 2). In response, FCI Williamsburg staff referred the plaintiff for a mental health assessment, which resulted in another increase to her mental health care level from level one to level two (Id.). However, it was determined that suicide watch was not warranted (Id.). On June 3, 2020, the plaintiff filed a formal request for administrative remedy, asserting that the BOP was being deliberately indifferent to her GD because she was seeking gender-affirming surgery, and the hormone therapy was an inadequate treatment for her symptoms (Id. at 4). The warden responded on June 19, 2020, stating that pursuant to the BOP's guidelines, all requests for gender-affirming surgery must be sent to the Transgender Clinical Care Team ("TCCT"), a multi-disciplinary group of BOP personnel with transgender subject matter expertise, for a determination as to whether such treatment is appropriate for any specific inmate (Id. at 5; doc. 29-2 at 5). On June 28, 2020, the plaintiff filed a regional administrative remedy appeal, again asserting deliberate indifference because her request for gender-affirming surgery "has been/is being refused or denied" (doc. 1-4 at 6). The BOP's response was issued on January 12, 2021, and stated that the plaintiff should have medical staff raise her request with the TCCT (Id. at 7). The plaintiff then filed a central office administrative remedy appeal on February 9, 2021, again asserting deliberate indifference because "my request for gender[-]affirming surgery has been/is being denied" (Id. at 8). The BOP's response was issued on April 6, 2021, and noted that the plaintiff's request had been reviewed by the TEC as to whether transferring her to a female facility as part of her transition would be appropriate but that the TEC determined that the plaintiff was appropriately housed at her current facility (Id. at 9). The response indicated that this determination was based on a consideration of numerous factors, including the plaintiff's health and safety, her behavioral history, her overall demeanor, her likely interactions with other inmates, whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution, and whether the plaintiff had made significant progress towards transition as demonstrated by her medical and mental health history (Id.). The plaintiff was informed that the TEC had requested further information from FCI Williamsburg and would continue to review her for a possible future transfer to a lesser security facility (Id.).
Ms. Noble provides in her declaration that the BOP's records indicate that the TEC discussed the plaintiff's requests for gender-affirming surgery on 13 occasions from 2019 to 2022 (doc. 85, Noble decl. ¶ 7). Ms. Noble further provides that the BOP's records indicate that when the TEC met on January 10, 2022, the TEC recommended that the plaintiff be transferred from FCI Williamsburg to a lower security male facility (Id. ¶ 10). Ms. Noble states that “[t]his was an important step toward an eventual transfer to a female facility because all female BOP facilities are low or minimum security, and inmates typically do not ‘skip' security levels as they move down” (Id.). In February 2022, the plaintiff was transferred to a low security facility at FCI Butner (doc. 27 at 1). Ms. Noble also provides that at on October 24, 2022, the TEC determined that it was appropriate for the plaintiff to be transferred from FCI Butner to a female facility (doc. 85, Noble decl. ¶ 11). This recommendation was communicated to the staff at FCI Butner, who in turn communicated the recommendation to the plaintiff and began administrative preparations for transferring the plaintiff to Federal Correctional Institution Aliceville (“FCI Aliceville”), a female facility (id.).
The plaintiff provides in a declaration attached to her motion for a TRO and preliminary injunction that she attempted “penile amputation” on September 1, 2022, underwent surgery on September 2, 2022, and was discharged and returned to federal prison on September 2, 2022 (docs. 75 at 2; 75-2, Boone decl. ¶¶ 11-13). The plaintiff further provides that she was placed on suicide watch until September 9, 2022 (Id. ¶ 13). The plaintiff attached to her motion the medical records regarding her “amputation attempt” (see doc. 75-3 at 1-8). Ms. Noble provides at that time, “Psychology performed a detailed evaluation and determined that [the plaintiff] was stable, future oriented, and willing to continue her treatment and transition process; accordingly, Psychology discontinued suicide watch precautions” (doc. 85, Noble decl. ¶ 23). Further, “Psychology has continued followup encounters with [the plaintiff] at least monthly since that time to monitor her mental health and provide the mental health support she requires” (Id.). In addition, Ms. Noble states as follows:
[The plaintiff] was informed by Psychology on October 3, 2022, that the recommendation was to establish six weeks of behavioral stability prior to her transfer to another facility. On November 1, 2022, Psychology met with [the plaintiff] to discuss her upcoming transfer to a female facility for gender affirming care. Psychology records reflect that she did not want to slow down the transfer, and her primary emphasis was not losing any more time getting the transfer moving.(Id.).
C. Procedural History
The plaintiff filed her complaint on September 22, 2021, alleging claims of deliberate indifference in violation of her Eighth Amendment rights against Michael Carvajal, the director of the BOP; Warden Mendoza; K. Nolte, the health services administrator at FCI Williamsburg; Dr. Hoey; Nurse Davis; Dr. Figueroa; and Dr. Laxton in their official capacities and seeking a declaration that the defendants' actions and omissions violated her constitutional rights; an injunction ordering the defendants to provide her with treatment and services, including feminizing products and clothing and gender-affirming surgery; a jury trial on all issues; her costs incurred during this matter; and any additional relief that the court deems just, proper, and equitable (doc. 1). On June 28, 2022, the undersigned issued a report and recommendation recommending that the defendants' motion to dismiss (doc. 29) be granted for failure to exhaust as to the plaintiff's deliberate indifference claims for voice feminization, feminizing products, and a comprehensive treatment plan but be denied as to the plaintiff's deliberate indifference claim for gender-affirming surgery, which was adopted by the district court on September 1, 2022 (docs. 53; 65). On October 19, 2022, the plaintiff filed a motion for a TRO and preliminary injunction (doc. 75). Additionally, the plaintiff filed a motion to compel on November 2, 2022 (doc. 81). The defendants filed a status report on November 10, 2022, providing notice to the court of the plaintiff's upcoming transfer to a female facility (doc. 82). Further, after receiving an extension of time, the defendants filed a response to the plaintiff's motion for a TRO and preliminary injunction, as well as an attachment with Ms. Noble's declaration, on November 16, 2022 (docs. 84; 85). The defendants also filed a response to the plaintiff's motion to compel on the same date (doc. 83). These matters are now ripe for review.
In Bivens actions, while plaintiffs may not seek monetary damages against federal officers in their official capacities, plaintiffs may seek injunctive relief. See Ross v. Meese, 818 F.2d 1132, 1134-35 (4th Cir. 1987); Gardner v. Janson, C/A No. 5:19-2616-CMC, 2021 WL 4472800, at *2 (D.S.C. Sept. 30, 2021) (citations omitted); Muhammad v. Ramirez, C/A No. 2:17-cv-02639-PMD-MGB, 2018 WL 4957388, at *3 (D.S.C. June 25, 2018) (citations omitted), R&R adopted by 2018 WL 4292322 (D.S.C. Sept. 10, 2018).
II. APPLICABLE LAW AND ANALYSIS
A. Motion for a TRO and Preliminary Injunction
In her motion for a TRO and preliminary injunction, the plaintiff seeks the following:
(1) A temporary restraining order halting and/or restricting institution to institution transfer(s) that are neither related to plaintiff's medical care needs nor are related to an actual, verifiable penological need,
(2) Cease all unnecessary or non-medical delays which may delay gender affirming surgery therapy,
(3) Provide the court and the plaintiff a step by step listing of all medically necessary preliminary pre-surgical procedures required by BOP,
(4) A timeline for completion of that step by step listing,
(5) Bi-weekly reports of completion progress, [and]
(6) Any other relief this court finds proper.(Doc. 75 at 2-3). The plaintiff submits that her GD has continued to deteriorate, as "urges and desires to remove her male gen[i]talia have become overwhelming" and she has now attempted "penile amputation" (Id. at 2). Further, the plaintiff contends that, in spite of her “amputation attempt,” the defendants persist in providing inadequate care, which consists "of hormone replacement therapy medications and transfers from institution to institution" (doc. 75-1 at 2).
A plaintiff seeking a TRO or preliminary injunction must establish all four of the following elements: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reinstated in relevant part on remand by 607 F.3d 355 (4th Cir. 2010). A preliminary injunction is "an extraordinary remedy," and the plaintiff must make a clear showing that she is likely to succeed on the merits of her claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. Similarly, she must make a clear showing that she is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 20-23; Real Truth, 575 F.3d at 347. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. See Real Truth, 575 F.3d at 346-47. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Real Truth, 575 F.3d at 347 (quoting Winter, 555 U.S. at 24).
As set out above, in the plaintiff's remaining claim, she alleges that the defendants were deliberately indifferent to her serious medical needs because they have delayed and denied her gender-affirming surgery (doc. 1 ¶ 23). Under the Eighth Amendment, prisoners have the right to receive adequate medical care while incarcerated. See Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016). When a prison official demonstrates "deliberate indifference" to an inmate's serious medical needs, a constitutional violation occurs under the Eighth Amendment. See id.; Estelle v. Gamble, 429 U.S. 97, 101-06 (1976). To state a claim for deliberate indifference to serious medical needs, a prisoner must show that she had a serious medical need and that officials knowingly disregarded that need and the substantial risk it posed. King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017). A "serious medical need" is a condition "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." Heyer, 849 F.3d at 210 (citation omitted). An official acts with deliberate indifference if he had actual knowledge of the prisoner's serious medical needs and the related risks, but nevertheless disregarded them. See Scinto, 841 F.3d at 225-26.
The undersigned finds that the plaintiff has failed to meet the standard for issuance of a TRO or preliminary injunction, as she has not made a clear showing of a likelihood of success on the merits on the second prong of the deliberate indifference test - that the defendants have knowingly disregarded the plaintiff's serious medical needs and the substantial risks that those needs posed. While the undersigned concluded that the plaintiff's allegations regarding a delay in her receipt of medical treatment were sufficient to state a deliberate indifference claim that was plausible on its face at the motion to dismiss stage, a heightened standard exists for a motion for a TRO or preliminary injunction. As set out above, because these motions involve the possible grant of an "extraordinary remedy," the plaintiff must make "a clear showing that she is likely to succeed on the merits of her claim." Winter, 555 U.S. at 20-23. Showing that there is "only a possibility that [the claim] will eventually prevail [is] inadequate." See Real Truth, 575 F.3d at 349.
Although the plaintiff has alleged that there was some delay in her being transferred to a low security facility, there is also evidence that the defendants have been providing the plaintiff with regular medical and psychological treatment for her GD and are actively taking steps to make her eligible for consideration for gender-affirming surgery. Specifically, the plaintiff has acknowledged that she has been receiving medical care; she was interviewed regarding her requests for gender-affirming surgery and informed of the procedures for moving forward; she has been receiving hormone therapy and psychological counseling; and her mental health care level was increased on multiple occasions. Additionally, as set out above, the TEC met regarding the plaintiff's requests for genderaffirming surgery on 13 occasions. Further, the TEC recommended that the plaintiff be transferred from FCI Williamsburg, a medium security male facility, to FCI Butner, a low security male facility, and the plaintiff was ultimately transferred to FCI Butner in February 2022. Additionally, the TEC subsequently recommended that the plaintiff be transferred from FCI Butner to FCI Aliceville, a female facility. The defendants note that the TEC made this recommendation even though the plaintiff had only resided at FCI Butner for approximately eight months and the BOP Manual provides that inmates are generally not considered for changes to housing assignments "until they have maintained one year clear conduct" at their current facility (doc. 29-1 at 8). The undersigned finds that these circumstances fall short of a "clear showing" that the plaintiff is likely to succeed on the merits of her deliberate indifference claim and reflect more of the plaintiff's disagreement with the treatment she has received thus far. See King v. United States, 536 Fed.Appx. 358, 363 (4th Cir. 2013) (“[Prisoners do not have a constitutional right to the treatment of his or her choice and [m]ere disagreement as to the proper medical treatment does not constitute deliberate indifference.”) (internal citations and quotation marks omitted); see also Gibson v. Collier, 920 F.3d 212, 221-26 (5th Cir. 2019) (holding that it was not deliberate indifference for prison officials to reject inmate's request for gender-affirming surgery where prison officials provided inmate with mental health counseling and hormone therapy for her GD); Kosilek v. Spencer, 774 F.3d 63, 82-96 (1st Cir. 2014) (holding that a prison's decision not to provide gender-affirming surgery did not violate the Eighth Amendment where the prison provided other treatment options); but see Edmo v. Corizon, Inc., 935 F.3d 757, 78598 (9th Cir. 2019) (affirming a lower court's grant of an injunction ordering the defendants to provide an inmate with gender-affirming surgery when the inmate met her burden by providing multiple medical experts who opined that gender-affirming surgery was medically necessary).
In addition, by requesting the court to order the BOP to cease all delays and provide her with gender-affirming surgery, in contravention of the BOP's Manual, the plaintiff is asking the court to divert from the status quo and substitute its judgment for that of the BOP. The undersigned declines to grant the plaintiff such an extraordinary remedy in the circumstances presented here. See Farmer v. Brennan, 511 U.S. 825, 846-47 (1994) (noting that courts must use "caution" in issuing injunctions in the prison context and should not "enmesh[]" themselves "in the minutiae of prison operations") (citation and internal quotation marks omitted); Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) ("[C]ourts are not to be in the business of running prisons.") (citations and internal quotation marks omitted); Holloway v. Coakley, C/A No. 2:17-cv-74, 2018 WL 1287417, at *6 (N.D. W.Va. Mar. 13, 2018) (“[T]he BOP is likely to be harmed by injunctions that would interfere with the daily execution of prison policies and practices and [s]uch an interference is not the place of federal courts, which do not stand in the position of overseeing the daily operations of prisons.") (citation and internal quotation marks omitted); see also DiBiase v. SPX Corp., 872 F.3d 224, 228 (4th Cir. 2017) (“[T]he purpose of a preliminary injunction is to preserve the status quo pending a final determination on the merits of the case.”) (citation omitted); Tiffany v. Forbes Custom Boats, Inc., C/A No. 91-3001, 1992 WL 67358, at *6 (4th Cir. Apr. 6, 1992) (citing Citizens Concerned for the Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1299 (10th Cir. 1980), cert. denied, 452 U.S. 963 (1981) (requiring a showing of compelling circumstances to justify the imposition of preliminary injunctive relief that was mandatory and which disturbed the status quo)). For the same reasons, the undersigned declines to order the BOP to "provide the court and the plaintiff a step by step listing of all medically necessary preliminary pre-surgical procedures required by BOP," "[a] timeline for completion of that step by step listing," or "[b]i-weekly reports of completion progress" (doc. 75 at 2-3). Consequently, the undersigned recommends that the district court deny the plaintiff's motion for a TRO and preliminary injunction.
As set out above, the plaintiff requests a TRO “halting and/or restriction institution to institution transfer(s) that are neither related to plaintiff's medical care needs nor are related to an actual, verifiable penological need” (doc. 75 at 2). While the plaintiff may dispute that living in a gender-affirming facility for at least one year prior to consideration for gender-affirming surgery is necessary, the undersigned declines to grant a TRO or preliminary injunction halting the plaintiff's upcoming transfer to FCI Aliceville given the fact that the plaintiff's transfer is a prerequisite in the Manual prior to her consideration for gender-affirming surgery and is therefore related to the plaintiff's medical care, as well as the fact that there is evidence that the plaintiff does not want to “slow down” the transfer.
Because the undersigned finds that the plaintiff has failed to meet her burden of making a clear showing of a likelihood of success on the merits, the defendants' remaining arguments need not be addressed.
B. Motion to Compel
In her motion to compel, the plaintiff alleges that she has sought discovery from the defendants, but the defendants have failed to provide any documents or answers to interrogatories (doc. 81 at 1-2, 4). The defendants contend that the plaintiff's motion should be denied because she failed to comply with Federal Rule of Civil Procedure 5(b)(1) and Local Civil Rule 37.01 (doc. 83 at 1-3). Nevertheless, the defendants also contend that the plaintiff's motion should be denied as moot because they have now responded or will respond shortly to all of the discovery requests that they have received (Id. at 3-4). Because the defendants have agreed to respond to the plaintiff's discovery requests, the undersigned finds that the plaintiff's motion to compel is moot. Further, the undersigned directs the plaintiff to serve all future discovery requests in accordance with Federal Rule of Civil Procedure 5(b)(1) by serving the requests upon the defendants' counsel at the addresses specified in the defendants' response (see doc. 83 at 4).
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court deny the plaintiff's motion for a TRO and preliminary injunction (doc. 75) and deny the plaintiff's motion to compel (doc. 81) as moot.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).