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Barnhill v. Inch

United States District Court, N.D. Florida, Tallahassee Division

September 23, 2019

JAMIE RAYE BARNHILL, Plaintiff,
v.
MARK S. INCH, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a Florida prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed a first amended complaint (hereinafter “complaint”), in late January 2019, ECF No. 6, and a motion for a preliminary injunction, ECF No. 11, in late April 2019. An Order was entered directing service of process on May 13, 2019, and Defendant was required to file a response to the complaint as well as Plaintiff's motion for a preliminary injunction. See ECF No. 13.

         Defendant requested, ECF No. 21, and was granted, a 14-day extension of time in which to file responses. ECF No. 22. On the deadline provided, Defendant filed an answer, ECF No. 23, to the amended complaint, but requested another extension of time in which to respond to the motion for preliminary injunction due to “delays in receiving the additional very recent medical documents and in obtaining a declaration as to the Plaintiff's treatment . . . .” ECF No. 24. That motion was granted and Defendant was directed to file a response to Plaintiff's motion by Monday, August 19, 2019. ECF No. 25.

         On August 16, 2019, Defendant filed a third motion requesting an extension of time in which to respond to Plaintiff's motion for preliminary injunction. ECF No. 26. Defendant ultimately filed a response on August 23, 2019. ECF No. 27. That response includes exhibits concerning Plaintiff's medical and psychological status and history. The documents should have been submitted under seal to protect Plaintiff's privacy in those records. This Order seals the exhibits. Plaintiff's motion for a preliminary injunction, ECF No. 11, is ready for a ruling.

         The Amended Complaint, ECF No. 6

         Plaintiff[1] is a “transwoman, ” meaning she was born with male genitalia but identifies as female, and is “serving a 72-month sentence for a SONORA violation.” ECF No. 6 at 4. Plaintiff suffers from Gender Dysphoria and “believes she is a woman trapped in a mans [sic] body.” Id. at 4-5.[2] Plaintiff has lived “her life as a woman” for over 30 years. Id. at 6. Now in the custody of the Florida Department of Corrections, Plaintiff alleges that her Eighth and Fourteenth Amendment rights have been violated by the failure to provide medically necessary surgery and by discriminating against her in areas such as clothing, cosmetic, and hygiene. ECF No. 6. The amended complaint (hereinafter “complaint”) seeks declaratory and injunctive relief only. Id. at 10.

         Attached to the complaint is a copy of an informal grievance Plaintiff submitted to the medical department requesting that inmates diagnosed with gender dysphoria be given a razor to shave “excess body hair.” ECF No. 6 at 25. The grievance was denied because a razor “is a security concern not [a] medical or mental health” issue. Id.

         Plaintiff then submitted a grievance to the warden of Zephyrhills Correctional Institution dated April 17, 2018. ECF No. 6 at 24. Plaintiff grieved the fact that the Gender Dysphoria Review Team had not provided adequate medical care or treatment. Id. Plaintiff complained that gender dysphoric inmates were denied “a daily means of hair removal to present as females.” Id. Plaintiff said that the denial of adequate hair removal causes “a sense of depression so severe” that she wants “to crawl in a hold and just end it.” Id.

         That grievance was also denied, but the response noted that based on Plaintiff's “statement of daily homicidal and suicidal thoughts, [she was] given a mental health review.” Id. at 23. The response further declared that Plaintiff was being provided all “current approved property and accommodations . . . .” Id.

         Plaintiff then filed an appeal to the Secretary's Office on May 7, 2018. ECF No. 6 at 22. Plaintiff requested laser hair removal or some means of hair removal and a second opinion from an outside mental health provider who had experience treating transgender persons. Id. Alternatively, Plaintiff sought permission “to use a disposable razor at medical in the inmate infirmary bathroom to shave daily and body shave at least once a week.” Id. No copy of a response to that appeal was presented with the complaint, so it is unknown if a response was provided to Plaintiff.

         Also attached to the complaint are copies of Plaintiff's grievances concerning the issue of hair length. On August 12, 2018, Plaintiff sent a grievance to the warden of Santa Rosa Correctional Institution Annex, ECF No. 6 at 15, grieving the fact that she was not permitted “to follow the same grooming standards for hair length” which were permissible for female inmates. Plaintiff said she had to keep her “hair cut short in a military male fashion” which caused “extreme depression, anxiety, and mental anguish.” Id. Plaintiff requested a “medical pass to be exempt from hair cuts” and be allowed “to follow female grooming standards for hair length.” Id.

         Plaintiff's grievance was denied on August 24, 2018, and Plaintiff was advised that her grievance was not of a medical nature because “medical does not issue passes for the grooming issues” presented in the grievance. ECF No. 6 at 16. Plaintiff was directed to address her “concerns with classification.” Id.

         Plaintiff appealed that response to the Secretary's Office on August 29, 2018. ECF No. 6 at 14. She explained her diagnosis of gender dysphoria and pointed out a recent federal court order which required the Department to allow inmate Keohane to comply with female grooming standards for hair length because of a GD diagnosis. Id. Plaintiff complained that it was “mentally traumatizing to make [her] endure being shaved bald on the whim of a correctional officer because” of her female appearance. Id. Plaintiff said that female inmates were permitted to “grow out their hair” and she requested equal treatment. Id.

         Plaintiff's appeal was denied on November 21, 2018. ECF No. 6 at 13. The response said that it was “the responsibility of [Plaintiff's] health care staff to determine the appropriate treatment regimen for” her “condition.” Id. The response noted that Plaintiff had been “approved for hormone therapy” but the other issues had not been approved by the Gender Dysphoria Review Team. Id. Plaintiff was told she could “ask the therapist for another evaluation” regarding her Gender Dysphoria.” Id.

         Additionally, Plaintiff submitted another grievance to the Secretary's Office in mid-October 2018, seeking to prevent officials from shaving her “bald headed” and causing her “traumatic emotional shock, depression and a great deal of anxiety.” ECF No. 6 at 18. Plaintiff argued that female inmates were not subjected to forced haircuts[3] and neither was inmate Keohane after an injunction was issued by District Court Judge Mark Walker. Id. Plaintiff requested “equal treatment” and to be “allowed to grow his/her hair in compliance with female grooming standards in conjunction with the WPATH standards of care.” Id.

         Plaintiff's appeal was denied on November 14, 2018. Id. at 17. The appeal “advised” that Plaintiff was “approved for hormone therapy” but the Gender Dysphoria Review team did not approve any other requests. Id.

         Plaintiff initiated this action on December 7, 2018, ECF No. 1, and filed the motion for preliminary injunction on April 22, 2019. ECF No. 11.

         Motion for Preliminary Injunction, ECF No. 11

         Plaintiff seeks injunctive relief in two specific ways: (1) to prohibit prison officials from forcibly shaving Plaintiff bald and permit her to grow her hair using the same standards applicable to female prisoners; and (2) provide Plaintiff with “some means of hair removal that will lessen the intense suicidal ideation of being forced to be a bearded woman.” ECF No. 11 at 1, 2. Plaintiff states that she “has lived all of her adult life as a female while in society.” Id. at 1. She requests “to be treated with the same dignity as female inmates.” Id. She argues that forcibly shaving her “bald, out of spite or ignorance[, ] serves no penalogical [sic] purpose other than to cause the Plaintiff to suffer from Acute Depression, anxiety and a sense of intense personal violation, as well as to suffer suicidal ideation.” Id. at 1-2. Plaintiff points out that her grievances were denied and prison officials have refused to provide an acceptable means of hair removal, id. at 2, but she argues that in light of the court order entered in the Keohane case, she is entitled to relief. Id. at 3.

         Defendant's Response, ECF No. 27

         Defendant first requests that Plaintiff's motion be denied because Plaintiff did not meet the burden of establishing all required elements for issuance of a preliminary injunction. ECF No. 27 at 3. Second, Defendant contends that the motion should be denied because Plaintiff's requests are moot. Id. at 4.

         Specifically, Defendant states that as of July 30, 2019, [4] Plaintiff has been given approval to style her hair in accordance with female hair standards. ECF No. 27 at 4 (citing to exhibits C-D). Further, Defendant advises that Plaintiff has “been given access to an additional canteen list which includes access to purchasing items such as combs, ponytail holders, hair nets, shampoo, conditioner, hair rollers, hair claws, and hair clips to accommodate the practical management of longer hair.” Id. at 4-5 (citing to Ex. E at 1-2). Defendant advises that Plaintiff's accommodation has been given as part of “an ongoing treatment plan” which receives periodic updates and was not “implemented as a result of this action being filed.” ECF No. 27 at 5; see also p. 7. Defendant contends that Plaintiff has also already “been provided the means to remove her facial hair” pursuant to the Department's rules. ECF No. 27 at 7. Defendant contends that Plaintiff has substantial access to barber services because her job assignment at Dade Correctional Institution since April 11, 2019, is in the institution's barbershop. Id. at 8. Additionally, Plaintiff may purchase items from the canteen to possess and use while housed in open population. Id.

         Thus, Defendant argues that Plaintiff's motion is moot because she has been granted the relief requested. Defendant asserts that this Court should have no concerns “that the challenged actions might be reasonably expected to recur” or that Plaintiff's treatment was “an attempt to manipulate jurisdiction.” Id. at 5-7.

         Standard of Review

         Granting or denying a preliminary injunction is a decision within the discretion of the district court. Carillon Importers, Ltd. v. Frank Pesce Intern. Group Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997) (citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983)). Preliminary injunctive relief may be granted only if the moving party establishes:

(1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury unless the ...

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