Opinion
Civil Action 21-cv-01695-CMA-KLM
12-05-2022
HUNTER ADAM MELNICK, Plaintiff, v. POLIS, Governor, DEAN WILLIAMS, Exec. Dir. of Prisons, DR. BUTLER, Chief of Psychiatry, THERESA MITCHELL, JANE DOE, JANE/JOHN DOES, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Preliminary Injunction [#47] and Plaintiff's Motion for Voluntary Dismissal [#60] (collectively “the Motions”). Defendants filed Responses to the Motions, and Plaintiff filed a Reply to the Motion for Preliminary Injunction [#60]. See [#51], [#54], [#69]. Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to the undersigned for a recommendation regarding disposition. See [#48], [#61]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion for Preliminary Injunction [#49] be denied and the Motion for Voluntary Dismissal [#60] be denied, without prejudice to Plaintiff's dismissal of the case pursuant to either Fed.R.Civ.P. 41(a)(1) or (2).
“[#47]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's electronic case filing and management system (CM/ECF). This convention is used throughout the Recommendation.
I. Background
Plaintiff Hunter Adam Melnick (“Plaintiff”) is an inmate presently incarcerated in the Colorado Department of Corrections (“CDOC”), and proceeds pro se in this matter.Plaintiff brings this action alleging that the CDOC Defendants engaged in federal constitutional rights violations in connection with denying treatment for Plaintiff's gender dysphoria. Plaintiff thus seeks treatment and therapy for this disorder, “to be treated as any other female in the custody of DOC. . .,” and to “stop the harassment from DOC personnel.” Second Am. Compl. [#98] at 6. The Second Amended Complaint [#98] requests “declaratory relief that Defendants violated Plaintiff's civil rights[,]” a permanent injunction against Defendants in their official capacity, and nominal, compensatory, and punitive damages against Defendants in their individual capacities. Id.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Motion for Preliminary Injunction [#49] seeks an order requiring Defendants to place Plaintiff in a female placement facility. Id. at 1. The Motion for Voluntary Dismissal [#60], filed in all of Plaintiff's pending cases, states that Plaintiff will dismiss the case if Defendants guarantee her release on parole. Id. at 1. The Court now turns to the merits of those Motions.
Because Plaintiff identifies as a female, the Court refers to Plaintiff using “she/her” pronouns. See Second Am. Compl. [#98] at 6.
II. Analysis
A. Motion for Voluntary Dismissal
Plaintiff filed the Motion for Voluntary Dismissal [#60] in this case as well as five other of her cases. This Motion [#60] does not simply seek to dismiss the case, but is a conditional dismissal. Thus, Plaintiff states that she will dismiss the case “[i]f Defendants guarantee[d] Plaintiff's release on parole in September 2022.” Id. at 1.
Defendants' Response [#69] states that Defendants do not have the ability or authority to release Plaintiff to parole. Id. at 1. Instead, Defendants state that the decision to grant parole or absolute release to an inmate incarcerated for an indeterminate sentence under the Act is vested within the sound discretion of the state parole board. Id. Further, to the extent that Plaintiff wants to voluntarily dismiss this case, Defendants state that she may unilaterally file a notice dismissing this action under Fed.R.Civ.P. 41(a)(1)(A)(I). Id.
Turning to the analysis, the Court first notes that the relief requested in the Motion for Voluntary Dismissal [#49] - Plaintiff's release on parole in September 2022 at an apparent hearing that month - appears to be moot as that time frame has passed. The electronic record indicates that Plaintiff is still incarcerated. Second, Plaintiff may not voluntarily dismiss a case premised on a condition that must be fulfilled by Defendants. See, e.g., Fed.R.Civ.P. 41. Accordingly, the Motion for Voluntary Dismissal [#49] is improper procedurally. If Plaintiff wishes to dismiss this case, she is advised that she may (1) file a notice of dismissal pursuant to Rule 41(a)(1)(A)(I), as noted by Defendants, (2) file a stipulation of dismissal signed by all the parties pursuant to Rule 41(a)(1)(A)(ii), or (3) seek dismissal pursuant to Rule 41(a)(2). Under either Rule 41(a)(1) or (2), Plaintiff is not permitted to impose conditions on the dismissal.
Based on the foregoing, it is recommended that the Motion for Voluntary Dismissal [#60] be denied, without prejudice to Plaintiff's dismissal of the case pursuant to either Fed.R.Civ.P. 41(a)(1) or (2).
B. Motion for Preliminary Injunction
The Motion for Preliminary Injunction [#49] requests that Plaintiff be placed in a female prison, as Plaintiff believes “that this would assist in the prerelease before parole of Plaintiff in September.” Id. at 1. “Plaintiff requests this relief now as this particular relief will be unavailable in a few months when the Plaintiff is released.” Id. Finally, Plaintiff argues that “[e]very day is a continuing injury,” and that “granting of this order would provide at least some genuine relief as well as mitigating some requested monetary damages[.]” Id.
Turning to the Court's analysis, “the primary goal of a preliminary injunction is to preserve the pre-trial status quo.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). Injunctive relief is an extraordinary remedy which should only be granted when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989), “is the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
A party requesting injunctive relief must clearly establish the following: (1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits. GTE Corp., 731 F.2d at 678 (10th Cir. 1984). Where the movant seeks a mandatory preliminary injunction - one that requires the nonmoving party to take an affirmative action and will change the status quo - courts require the movant to make a heightened showing of the four equitable factors. RoDa Drilling Co., 552 F.3d at 1208-09. The preliminary injunction sought by Plaintiff is mandatory, as it seeks an order requiring Defendants to transfer her to a female facility. Accordingly, the heightened burden applies.
The Court finds that Plaintiff's Motion for Preliminary Injunction [#49] should be denied. As to irreparable injury, it is well established that “[b]ecause a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,356 F.3d 1256, 1260 (10th Cir.2004) (citations omitted). To constitute irreparable harm, an injury must be certain, great, actual ‘and not theoretical.'” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003) (quotation omitted).
Plaintiff's Motion for Preliminary Injunction [#49] did not specifically address irreparable injury or, indeed, any of the four factors required to obtain injunctive relief. Plaintiff asserted only that “every day is a continuing injury where Plaintiff's civil rights are violated[,]” that a transfer to a female prison “would assist in the prerelease before parole in granted in September [2022], and that a transfer “would provide at least some genuine relief as well as mitigating some monetary damages from Defendant.” Id. at 1. These issues do not identify a certain, great, or actual harm to Plaintiff that would result if she is not transferred to a female facility. Heideman, 348 F.3d at 1189. Further, while Plaintiff wished to be transferred before her alleged release from parole in September 2022, she stated that this was because this relief would be unavailable once she was released and she thought it would “assist” in her prerelease. Motion [#49] at 1. This does not demonstrate any type of irreparable harm. Moreover, as Plaintiff is still incarcerated at this time, it appears she was not released on parole and this justification for a transfer is no longer relevant.
Plaintiff argues in her Reply [#59], however, that Defendants' actions/inaction “are having a negative physiological, psychological, emotional impact” on her, that she is “suffering” by being in a male prison, and that a transfer to a female prison “is a form of treatment.” Id. at 2-3. The Court first notes as to this argument that Plaintiff does not explain how a transfer is a “form of treatment.” Other than the fact that Plaintiff would be placed with females rather than males upon a transfer, it is entirely speculative whether Plaintiff would receive the treatment and therapy she seeks if she is transferred to a female prison, or how any “suffering” arising from the gender dysphoria would be alleviated. As to the argument that Plaintiff is suffering both psychologically and physiologically, while the Court is sympathetic to Plaintiff, she has not shown harm that is more than “merely serious or substantial[,]” Heideman, 348 F.3d at 1189, or that “the injury is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Schrier, 427 F.3d at 157.
Accordingly, the Court finds that Plaintiff has failed to show irreparable injury. The Court also finds that Plaintiff has failed to demonstrate or even discuss the other three elements required for an injunction. Plaintiff thus has not shown a likelihood of success on the merits. Further, the Court finds as to the balance of harms and the public interest that these elements weigh in favor of Defendants, not Plaintiff. As Defendants highlight, the Supreme Court has held that “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources,” and “separation of powers concerns counsel a policy of judicial restraint.” Response [#51] at 7 (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)). Accordingly, “[c]ourts should grant injunctive relief involving the management of prisons only under exceptional and compelling circumstances.” Sanaah v. Howell, No. 08-cv-02117-REB-KLM, 2009 WL 4250147, at *4 (D. Colo. Nov. 23, 2009) (citation omitted). The Court's intervention into prison officials' determinations regarding Plaintiff's housing assignment, its impact on offender health and safety, and the management or security problems posed by any transfer to a female facility, would be costly, unduly burdensome, and adverse to the public interest. Plaintiff's Motion for Preliminary Injunction [#49] does not discuss these issues, or present exceptional circumstances that would require judicial interference.
Related to this, the Court finds that Plaintiff has not demonstrated that the relief she seeks is narrowly tailored as required by the Prison Litigation Reform Act (“PLRA”). The PLRA provides in relevant part:
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be
narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief . . . in tailoring any preliminary relief.18 U.S.C. § 3626(a)(2). “The purpose of the PLRA is to limit the power of a federal court to grant prospective relief in prison-conditions litigation.” New Times, Inc. v. Ortiz, Civil Action No. 00-cv-00612-RPM, 2009 WL 3451128, at *3 (D. Colo. Oct. 16, 2009).
Here, Plaintiff asks the Court to order a significantly intrusive form of relief - a transfer of Plaintiff to one of CDOC's two female prison facilities. Plaintiff requests that this injunctive relief be issued irrespective of CDOC's determination of classification, management and security needs, and offender health and safety requirements pursuant to its administrative regulations. See Response [#51] at 5 (citing Practices Concerning Transgender Offenders, Administrative Regulation (AR) 700-14, § V.A). As Defendants note, courts have recognized that interference with the ability of correctional agencies and officials to control the classification and movement of prisoners is substantially inconsistent with the notion that the PLRA requires injunctive relief to be narrowly drawn and as unintrusive as possible. Response [#51] at 5 (citing Cassini v. Lappin, No. 08-cv-00644-OWW-SMS-PC, 2009 WL 224147, at*3 (E.D. Cal. Jan. 29, 2009) (holding that a requested transfer to a minimum-security prison was not narrowly drawn relief); Lane v. Dep't of Corr., No.C18-5666-RBL-TLF, 2018 WL 5303308, at*2 (W.D. Wash. Oct. 1, 2018) (same), report and recomm. adopted, No.C18-5666-RBL-TLF, 2018 WL 5295810 (W.D. Wash. Oct.25, 2018)).
Available at https://drive.google.com/file/d/1vi3eJ6C mmSamnpRPMeGHmStbUZ5emuT/view
Plaintiff does not identify any specific harm that the requested relief would necessarily prevent, and the relief she seeks imposes a significant intrusion on the operations of the CDOC. Moreover, the Court agrees with Defendants that there are no doubt many less-intrusive remedies to address the constitutional violations alleged in this action. Plaintiff even offers in support of the requested injunction that a facility transfer would mitigate monetary damages. Motion [#49] at 1. It follows that monetary damages, rather than injunctive relief, could at least partially remedy any alleged injury caused by not transferring Plaintiff to a female facility, if Plaintiff ultimately establishes entitlement to any such relief in this action. See Schrier v. Univ. of Colorado, 427 F.3d 1253, 1257 (10th Cir. 2005) (holding that a preliminary injunction is not warranted where the harm could be remedied by monetary damages should the plaintiff ultimately prevail at trial).
III. Conclusion
For the foregoing reasons, IT IS RECOMMENDED that Plaintiff's Motion for Preliminary Injunction [#47] be DENIED.
IT IS FURTHER RECOMMENDED that Plaintiff's Motion for Voluntary Dismissal [#60] be DENIED, without prejudice to Plaintiff's dismissal of the case pursuant to either Fed.R.Civ.P. 41(a)(1)(ii) or (2).
IT IS ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).