D.C. No. 5:13-CV-01191-D, W.D. Okla.
Before GORSUCH, O'BRIEN, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT [*]
Jerome A. Holmes, Circuit Judge
Jeanne Marie Druley, an Oklahoma state prisoner, filed a 42 U.S.C. § 1983 complaint against employees of the Oklahoma Department of Corrections (ODOC) asserting they had violated her constitutional rights in connection with her care as a transgendered individual. She filed a motion for a temporary restraining order (TRO) and preliminary injunction at the same time she filed her complaint. The district court denied injunctive relief, and Ms. Druley, proceeding pro se, appeals. We lack jurisdiction to review the denial of her TRO motion. We affirm the denial of her motion for a preliminary injunction.
Prior to her incarceration in 1986, Ms. Druley was diagnosed with gender identity disorder (GID) and had two of three gender reassignment surgeries needed to change the gender of her body from male to female. Her name and birth certificate were changed to identify her as a female. In her § 1983 complaint, Ms. Druley alleges that the ODOC defendants violated the Eighth Amendment's prohibition on cruel and unusual punishment by stopping and starting her prescribed hormone medications and giving her inadequately low dosages of her hormone medication. She also alleges the ODOC defendants violated the Equal Protection Clause by housing her in an all-male facility.
Ms. Druley filed her TRO and preliminary injunction motion the same day as her complaint, seeking a court order directing the ODOC defendants to raise her hormone medication to the levels recommended by the Standards of Care established by the World Professional Association for Transgender Health (WPATH), allow her to wear ladies' undergarments, and move her to a non-air-conditioned building to alleviate asthma symptoms. The matter was referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(B), who issued a Report and Recommendation (R&R) to deny injunctive relief. After considering Ms. Druley's objections, the district court adopted the R&R and denied injunctive relief.
As to the TRO, the district court ruled Ms. Druley failed to give notice of her TRO request to ODOC defendants as required by Fed.R.Civ.P. 65, or to show cause in accordance with Fed.R.Civ.P. 65(b) why this notice requirement should be excused. As to the preliminary injunction, the district court ruled Ms. Druley had not shown a substantial likelihood of success of the merits of her § 1983 complaint or that she would be irreparably harmed without her requested hormone treatment. Ms. Druley filed this interlocutory appeal of that order.
We must first address our appellate jurisdiction. "Ordinarily, denial of a temporary restraining order is not appealable." Populist Party v. Herschler, 746 F.2d 656, 661 n.2 (10th Cir. 1984); 16 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3922.1 (3d ed. 2014) ("The general rule is that orders granting, refusing, modifying, or dissolving temporary restraining orders are not appealable under [28 U.S.C.] § 1292(a)(1) as orders respecting injunctions."). There are two exceptions: "when the order is appealable as a final order under 28 U.S.C. § 1291, " and when the order has the practical effect of denying a preliminary injunction. Populist Party, 746 F.2d at 661 n.2. Neither exception is applicable here: the district court's denial of the TRO is not a final appealable order under 28 U.S.C. § 1291, and the denial did not have the "practical effect of denying an injunction, " the consequences of the denial are not irreparable, and immediate review is not the only effective means of challenging the order. United States v. Colorado, 937 F.2d 505, 507-08 (10th Cir. 1991). We therefore dismiss the appeal of the denial of the TRO.
Orders granting or denying preliminary injunctions, however, are among the types of interlocutory orders that are immediately appealable under 28 U.S.C. § 1292(a)(1). We thus have jurisdiction to review the district court's denial of Ms. Druley's request for a preliminary injunction.
We construe Ms. Druley's pro se brief liberally. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). A party seeking a preliminary injunction must establish: (1) a likelihood of success on the merits; (2) a likelihood that the party will suffer irreparable harm in the absence of a preliminary injunction; (3) that the balance of equities tips in the party's favor; and (4) that the injunction serves the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). A preliminary injunction requiring the nonmoving party to take affirmative action, as Ms. Druley seeks, is an extraordinary remedy that is generally disfavored. Id. We review a district court's denial of a motion for a preliminary injunction for abuse of discretion. Id. at 1250.
Ms. Druley's injunctive-relief motion requests an order directing ODOC medical staff to raise her hormone level in accordance with levels recommended by the WPATH Standards of Care. Her complaint alleges that prison officials have started and stopped her hormone treatment numerous times over the last 27 years and currently prescribe a hormone dosage for her that is below the normal lowest dosage recommended by WPATH. Her injunctive-relief motion asserts generally that ODOC medical staff does not understand the importance of the WPATH Standards of Care, but other than stating her current hormone treatment level, neither her complaint nor her injunctive-relief ...