Millhouse, II v. Seleshi

1

JUSTIN D. MILLHOUSE, II, aka Alexis Millhouse, Plaintiff, v. DR. ERMIAS SELESHI, et al., Defendants.

Civil Action No. 2:21-cv-05210

United States District Court, S.D. Ohio, Eastern Division

September 29, 2022

SARAH D. MORRISON, JUDGE.

ORDER AND REPORT AND RECOMMENDATION

ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Justin D. Millhouse, II, aka Alexis Millhouse^[1], a state prisoner currently incarcerated in the Chillicothe Correctional Institution (“CCI”), proceeding pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983. (ECF No. 4.) Following an initial screening, Plaintiff is proceeding on claims against Dr Ermias Seleshi and Annette Chambers Smith, in both their official and individual capacities, alleging violations of her Eighth and Fourteenth Amendment rights. For the following reasons, it is RECOMMENDED that the Court DISMISS Plaintiff's claims as MOOT.

I.

Plaintiff's verified Complaint alleges the following. Dr. Seleshi, the State Psychiatry Director, denied Plaintiff hormone replacement therapy for non-medical reasons, i.e., her criminal history. (ECF No. 4.) According to Plaintiff, this denial constitutes deliberate indifference to her gender dysphoria, a recognized serious medical need. Plaintiff explains that, although she was referred for continued mental health treatment, both she and her mental health care provider believe that such treatment has done nothing to address her gender dysphoria issues. Plaintiff further asserts that the decision to deny her treatment for criminogenic reasons was made pursuant to ODRC Policy 69-OCH-07, a policy approved by Defendant Chambers Smith. Plaintiff seeks injunctive relief in the form of an order granting her request for hormone therapy and the revision of ODRC Policy 69-OCH-07 to eliminate non-medical considerations and incorporate the World Professional Association of Transgender Health Standards of Care. Plaintiff is suing both Defendants in their official and individual capacities.

II.

On June 14, 2022, Plaintiff filed a “Request to Take Judicial Notice of Approval of Hormone Replacement Therapy.” (ECF No. 36.) That filing, construed as a motion, is GRANTED as unopposed.

In that filing, Plaintiff represented that on June 8, 2022, she was informed that Dr. Seleshi's decision to deny her treatment request had been overturned and she now was approved for hormone replacement therapy. (Id.) By Order dated July 22, 2022, (ECF No. 46), the Court noted the following. Plaintiff appears to have obtained, at least in part, the relief that she seeks in this action to the extent that she now has been approved for hormone therapy.^[2] For this reason, it is unclear whether Plaintiff “'continue[s] to have an actual injury that is capable of being redressed by a favorable judicial decision.'” United States v. Behnan, No. 1:10-CR-20563-01, 2022 WL 2071050, at *3 (E.D. Mich. June 8, 2022) (quoting Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009). Article III of the United States Constitution limits federal courts to the adjudication of actual, ongoing cases and controversies. Deakins v. Monaghan, 484 U.S. 193, 199 (1988). “To satisfy the case or controversy requirement, an actual controversy must exist at all stages of review, and not simply on the date the action is initiated.” Rettig v. Kent City School Dist., 788 F.2d 328, 330 (6th Cir. 1986). A case will become moot when the requested relief is granted or no live controversy remains. Deakins, 484 U.S. at 199.

Further, the Court explained that, as a threshold matter, the Court must ensure that a case or controversy still exists between the parties. Otherwise, the Court no longer has jurisdiction over this case. Accordingly, “[a] court may raise the jurisdictional issue of mootness sua sponte.” Sykes v. Swanson, No. 2:20-CV-12421, 2020 WL 6273462, at *1 (E.D. Mich. Oct. 26, 2020) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971) (“Mootness is a jurisdictional question because the Court is not empowered to decide moot questions or abstract propositions....”); Berger v. Cuyahoga Co. Bar Ass'n, 983 F.2d 718, 721 (6th Cir. 1993) (“Questions of jurisdiction are fundamental matters which [a court] may review sua sponte.”)); see also Thomas v. City of Memphis, Tenn., 996 F.3d 318, 329 (6th Cir. 2021) (considering whether a claim was moot on its own initiative).

“In plain terms, mootness means that if an actual, ongoing controversy ceases to exist between the parties at any point in the litigation, the case cannot continue.” Amalgamated Transit Union v. Chattanooga Area Reg'l Transp. Auth., 431 F.Supp.3d 961, 973 (E.D. Tenn. 2020) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997); Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701, 703 (6th Cir. 2009); Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986)). “Under the doctrine of mootness, courts must ask whether the case in question consists of a ‘genuine dispute[ ] between adverse parties, [such that] the relief requested would have a real impact on the legal interests of those parties.'” Behnan, 2022 WL 2071050, at *2 (quoting Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 558 (6th Cir. 2021)). “If ‘the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome,' then the case is moot and the court has no jurisdiction.” Id.

Accordingly, the Court directed the parties to file supplemental briefing addressed to the mootness issue. Specifically, the Court invited the parties to discuss as necessary and with specificity whether, under current circumstances, Plaintiff's claim for a policy revision gives rise to any cognizable legal interest and whether there is any reasonable expectation that Plaintiff will be deprived of hormone treatment in the future. The parties filed their supplemental briefs as ordered on August 5, 2022.

For their part, Defendants assert that this matter is moot because Plaintiff currently is receiving hormone replacement therapy and any suggestion that this therapy may be discontinued in the future is mere speculation. Defendants also contend that Plaintiff has no standing to challenge the policy on behalf of other inmates. For her part, Plaintiff contends that this action is not moot because the policy may be applied to deny her anticipated request for sex reassignment surgery. She also contends that there is no guarantee that ODRC will not stop her current hormone therapy if this litigation ends and a sudden stop in the medication could present a severe health risk. She also appears to challenge the ODRC policy as it relates to social transitioning treatment. Read as a whole, Plaintiff's supplemental filing confirms her view that this action is a vehicle to achieve the ODRC's court-ordered implementation of the WPATH standards.

III.

As a general matter, prospective injunctive relief is available only when there is a “continuing violation of federal law.” Martinko v. Whitmer, 465 F.Supp.3d 774, 777 (E.D. Mich. 2020) (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). “In determining whether a case has become moot, a court will examine any intervening circumstances that have arisen during the case's pendency, and decide whether they render the court unable to grant the requested relief.” Amalgamated Transit, 431 F.Supp.3d at 973 (internal citations and quotations omitted). “In any given case, intervening circumstances may take one of three forms: (1) the plaintiff abandons or settles the case, (2) the defendant voluntarily ceases the alleged illegal conduct, or (3) events beyond either party's control cause relief to become impossible or unnecessary.” Id. (citing Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802, 820 (D.C. Cir. 1983)). “The second intervening circumstance-a defendant's voluntary cessation of the alleged illegal conduct-does not, as a general rule, automatically moot a case.” Id. (citing Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)). “However, a case is considered moot by the defendant's voluntary cessation of the conduct at issue where the defendant can show: (1) ‘there is no reasonable expectation that the alleged violation will recur'; and (2) ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'” Thomas, 996 F.3d at 324 (quoting Speech First v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019)).

The Court assumes, without deciding, that Plaintiff's approval for hormone replacement therapy amounted to a voluntary cessation of the denial of treatment as alleged in the Complaint. Plaintiff claims, in part, that absent injunctive relief, Defendants remain free under the policy to discontinue her hormone replacement therapy presumably based on criminogenic factors such that this case is not moot. Plaintiff is incorrect.

First, under the express terms of the challenged policy, there is no reasonable expectation that the wrong Plaintiff alleges in her Complaint - the alleged denial of hormone replacement therapy based on her criminal history - will be repeated. Plaintiff has submitted a copy of ODRC policy 69-OCH-07. (ECF No. 1-4.) Plaintiff's claim, filed prior to her approval for and receipt of hormone replacement therapy, challenges the provision in § VI. F.1.c. which allows the State Psychiatry Director to

[d]eny further evaluation for hormone treatment and recommend an alternative plan of care due to factors such as co-occurring mental health disorders, criminogenic factors or other factors related to public safety, including the safety and security of other incarcerated individuals; …

(See ECF No. 4 at 7 citing ECF No. 1-4 at 13.)

Given Plaintiff's undisputed approval for and receipt of her requested therapy, different policy...