United States District Court, N.D. Florida, Tallahassee Division
ORDER AND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
Amended Complaint, ECF No. 6
Plaintiff 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. 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.
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.
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.
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 . . . .”
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.
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.
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
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
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.
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 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.”
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.
initiated this action on December 7, 2018, ECF No. 1, and
filed the motion for preliminary injunction on April 22,
2019. ECF No. 11.
for Preliminary Injunction, ECF No. 11
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.
Response, ECF No. 27
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.
Defendant states that as of July 30, 2019,  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.
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
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