Crawford v. Tubb

• Court: District Court, D. Arizona
• Decided: July 8, 2022
• Docket: 4:21-cv-00498
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Antonio Crawford, No. CV-21-00498-TUC-JCH

10 Plaintiff, ORDER

11 v.

12 Unknown Tubb, et al.,

13 Defendants. 14 15 Before the Court is Plaintiff’s Emergency Ex Parte Motion for TRO.1 (Doc. 22.) On 16 June 22, 2022, Defendant Tubb2 filed her Opposition to Plaintiff’s Motion for Preliminary 17 Injunction. (Doc. 29.) Plaintiff filed her reply. (Doc. 32.) As explained below, the Court 18 finds Plaintiff’s request for preliminary injunctive relief will be denied. 19 I. BACKGROUND 20 As alleged in the First Amended Complaint (FAC), Plaintiff is an African American 21 transgender woman3 who is documented in the Federal Bureau of Prisons (BOP) CMA 22 23 1 As explained in its June 8, 2022 Order, the Court construed Petitioner’s motion as a 24 motion for preliminary injunctive relief. (Doc. 23 at 4.) 2 Plaintiff alleges that she is suing Defendant Tubb in both her official and individual 25 capacities. (Doc. 8-1 at 22, ¶ 6.) Defendant Tubb states that a plaintiff may not seek an 26 injunction against an individual defendant acting in her personal capacity. (Doc. 29 at 1, n.1.) Because the Court finds that Plaintiff’s claim is moot it does not determine whether 27 the Court may issue injunctive relief against an individual defendant alleged to be acting 28 in her individual capacity. 3 The Court refers to Plaintiff using her preferred pronouns. 1 Sentry database4 as having been diagnosed with gender dysphoria and receiving hormone 2 therapy. (Doc. 8-1 at 4.) She is also documented as a transgender prisoner who has been 3 sexually assaulted in the past. Id. Plaintiff alleges that when male officers pat her down, it 4 triggers her gender dysphoria and her prior sexual victimization by males. Id. Plaintiff 5 further alleges that USP-Tucson allows transgender prisoners to receive pat down searches 6 by female officers only. Id. 7 Plaintiff alleges that in June 2021, she sent a request to Defendant Howard that only 8 female officers perform pat down searches of her. Id. at 5. Plaintiff alleges that although 9 Defendant Howard and other Defendants who met to address her request were aware of 10 her medical and mental health records, her diagnosis, and her history, her request for a 11 female-only pat search exception was inexplicably denied. Id. at 5–6. She alleges that more 12 non-African American transgender prisoners have been approved for female-only pat 13 searches in comparison to African American transgender prisoners, and that Defendants’ 14 denial of her request therefore constituted racial discrimination. Id. at 6. Upon screening, 15 the Court determined that Plaintiff sufficiently stated an Eighth Amendment medical care 16 claim in Count One and a Fifth Amendment Equal Protection claim in Count Two against 17 Defendants and directed them to answer. (Doc. 14 at 6.) 18 On June 6, 2022, Plaintiff filed her Emergency Ex Parte Motion for TRO claiming that 19 she is still being subject to male pat down searches. (Doc. 22.) She alleges that on May 31, 20 2022, male Officer Schwartzendruber subjected her to an unreasonable pat down search 21 despite knowing that Plaintiff has gender dysphoria and that his search would cause her to 22 suffer suicidal ideations. Id. at 2–3. Plaintiff alleges that after the search and her resulting 23 injury, she notified her case manager, Defendant Mack, that she felt suicidal; Defendant 24 Mack contacted the Psychology Department immediately, and Plaintiff was placed under 25 extensive staff supervision and seen by psychology staff member Dr. Warner. Id. at 3. 26 Plaintiff requests that the Court order Defendants to provide her with a Yellow Marked ID 27 Card indicating female-only pat downs and visual searches, and to direct Defendants not 28 4 CMA Sentry databased is the BOP Case Management Activity computer database. 1 to conduct male pat downs and visual searches. (Doc. 22 at 5.) 2 In her opposition, Defendant Tubb establishes that “[p]at searches of transgender 3 inmates [are to] be conducted in accordance with” Program Statement 5521.06, Searches 4 of Housing Units, Inmates, and Inmate Work Areas. (Doc. 29-2 at p. 2, ¶ 4.) Pursuant to 5 Program Statement 5521.06, “[p]at search information refers only to individuals at male 6 facilities who identify as female. The BOP does not offer ‘male only’ pat searches.” Id. 7 Program Statement 5521.06 further provides:

8 For purposes of pat searching, inmates will be pat-searched in accordance 9 with the gender of the institution, or housing assignment, in which they are assigned. Transgender inmates may request an exception. The exception 10 must be pre-authorized by the Warden, after consultation with staff from 11 Health Services, Psychology Services, Unit Management, and Correctional Services. Exceptions must be specifically described (e.g., ‘pat search only by 12 female staff’), clearly communicated to relevant staff through a 13 memorandum, and reflected in SENTRY (or other Bureau database; e.g., posted picture file). Inmates should be provided a personal identifier (e.g., 14 notation on commissary card, etc.) that indicates their individual exception, 15 to be carried at all times and presented to staff prior to pat searches.

16 Id. at p. 3, ¶ 5. Additionally, Program Statement 5200.08 provides, in relevant part: 17 Unless there is a history of inappropriate sexual behavior suggesting 18 approval poses risks to staff, requests are ordinarily approved by the Warden’s Office. Inmates may request denials be reviewed by the 19 [Transgender Executive Committee (TEC)] through the Administrative 20 Remedy Program. Inmates who are granted this exception under policy may have it reversed by the Warden if found to have violated institution rules 21 concerning contraband. In exigent circumstances, any staff member may 22 conduct a pat search of any inmate consistent with Program Statement 5521.06. 23 Id. at ¶ 6. 24 Defendant Tubb explains that in mid-May 2022, she chaired a meeting to discuss 25 Plaintiff’s request for a female-only pat down search exception. (Doc. 29 at 2.) 26 Representatives from Correctional Services, Health Services, Psychology Services and 27 Unit Management were in attendance. Id. Plaintiff’s gender dysphoria diagnosis, 28 compliance with hormone treatment medications and relevant security issues were 1 discussed. Id. The meeting participants unanimously recommended approving Plaintiff for 2 a female-only pat search exception. (Doc. 29 at 2.) 3 On May 24, 2022, the Warden formally approved Plaintiff’s female-only pat search 4 exception. (Doc. 29-2 at p. 4, ¶ 11.) Plaintiff’s name is recorded on an inmate detail list 5 along with other transgender inmates who have been approved for a female-only pat search 6 exception. Id. at 12. All staff at USP-Tucson are able to access the inmate detail list of 7 inmates that have been approve for female-only pat search exceptions. Id. at ¶ 13. Each 8 inmate who has been approved for a female-only pat search exception, including Plaintiff, 9 is identified by yellow on their inmate identification card. Id. 10 II. LEGAL STANDARD 11 a. Preliminary Injunction Standard and the Prison Litigation Reform Act 12 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 13 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (12008) (citation omitted). “A 14 preliminary injunction is ‘an extraordinary remedy, one that should not be granted unless 15 the movant, by a clear showing, carries the burden of persuasion.’” Lopez v. Brewer, 680 16 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazuek v. Armstrong, 520 U.S. 968, 972 (1997)). 17 To obtain injunctive relief, the moving party must show “that he is likely to succeed on the 18 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 19 the balance of equities tips in his favor, and that an injunction is in the public interest.” 20 Winter, 555 U.S. at 20.5 Where a plaintiff does not seek merely to preserve the status quo 21 pendente lite, but instead seeks to compel a defendant to take affirmative action, the 22 plaintiff’s burden is even more demanding: she “must establish that the law and facts 23 clearly favor her position, not simply that she is likely to succeed.” Garcia v. Google, Inc., 24 786 F.3d 733, 740 (9th Cir. 2015). Such relief, granted even before the case is litigated, is 25 5 Alternatively, a preliminary injunction may issue when a plaintiff demonstrates that 26 “serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th 27 Cir. 2011). The “serious questions” approach requires that the elements of the preliminary injunction test be balanced, so that a stronger showing of one element may offset a weaker 28 showing of another. See All. for the Wild Rockies, 632 F.3d at 1135. A plaintiff still must also satisfy the other Winter factors, including the likelihood of irreparable harm. Id. 1 “particularly disfavored.” 786 F.3d at 740. The Prison Litigation Reform Act requires that 2 any injunctive relief with respect to prison conditions be narrowly drawn and be the least 3 intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2); Gillmore v. 4 California, 220 F.3d 987, 998 (9th Cir. 2000). 5 b. Mootness 6 Mootness is a threshold jurisdictional issue. St. Paul Fire & Marne Ins. Co. v. Barry, 7 438 U.S. 531, 537 (1978). “Federal courts lack jurisdiction to decide moot cases because 8 their constitutional authority extends only to actual cases or controversies.” Sample v. 9 Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). “Because Article III restricts federal court 10 jurisdiction to actual cases and controversies, federal courts may not ‘give opinions upon 11 moot questions or abstract propositions.’” Pinson v. Othon, No. CV-20-00169-TUC-RM, 12 2020 WL 7404587, at *2 (D. Ariz. Dec. 17, 2020) (quoting Calderon v. Moore, 518 U.S. 13 149, 150 (1996)). “A case that become moot at any point during the proceedings in ‘no 14 longer a case or controversy for purposes of Article III and is outside the jurisdiction of the 15 federal courts.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (citations 16 and internal quotations omitted). 17 III. ANALYSIS 18 a. Plaintiff’s Request for a Yellow marked ID Card is Moot 19 In her motion, Plaintiff requested an injunction requiring that the BOP provide her 20 with a yellow identification card signifying that she is to receive female-only pat searches. 21 (Doc. 22 at 5.) The records provided by Defendant Tubb establish that Plaintiff was 22 provided with such a yellow identification card on May 24, 2022. (Doc. 29-2 at p. 4, ¶ 11 23 and p. 35.)6 The Court thus finds Plaintiff’s claim that she be provided a yellow 24 identification card demonstrating that she has been granted a female-only pat search— 25 received the specific relief requested in her Motion—exception is moot. See Rosemere 26 6 In her reply, Plaintiff claims that she was only issued a yellow marked ID card because 27 she filed her motion for TRO. (Doc. 23 at 2.) Plaintiff signed her request for a TRO on June 1, 2002 and her request was docketed on June 6, 2022. (Doc. 22.) However, the 28 memorandum provided by Defendant Tubb establishes that Plaintiff’s request for a yellow identification card was granted by the BOP on May 24, 2022. (Doc. 29-2 at 35.) 1 Neighborhood Ass’n v. U.S. Environmental Protection Agency, 581 F.3d 1169, (9th Cir. 2 2009) (“[i]n general, when an administrative agency has performed the action sought by a 3 plaintiff in litigation, a federal court lacks the ability to grant effective relief, and the claim 4 is moot”) (internal quotation omitted); Shabazz v. Giurbino, No. 1:11-cv-01558-DAD- 5 SAB (PC), 2017 WL 2671082, at *12 (E.D. Cal. June 21, 2017) (finding injunctive relief 6 moot where the plaintiff had received a satisfactory form of the relief he requested); Munoz 7 v. Rowland, 104 F.3d 1096, 1097–98 (9th Cir. 1997) (“Because Munoz has been released 8 from the SHU, we can no longer provide him the primary relief sought in his habeas corpus 9 petition. Munoz's ... challenges to ... the conditions of confinement in the SHU are therefore 10 moot, and must be dismissed.”); Rodriguez v. Moore, No. 2:19-cv-0226-MCE-DMC-P, 11 2019 WL 2284892, at *1 (E.D. Cal. May 29, 2019), report and recommendation adopted, 12 2019 WL 3714510 (E.D. Cal. Aug. 7, 2019) (“Moreover, if an inmate is seeking injunctive 13 relief with respect to conditions of confinement, the prisoner's transfer to another prison 14 renders the request for injunctive relief moot, unless there is some evidence of an 15 expectation of being transferred back.”). 16 b. The Exception to the Mootnesss Doctrine Does Not Apply 17 In her reply, Plaintiff acknowledges that she has been granted a female-only pat search 18 exception and issued a yellow marked ID card. (Doc. 32.) She complains, however, that 19 her yellow marked ID card “will be rendered insufficient and [she] will be forced to endure 20 male pat searches which will reincline (sic) [her] back to a suicidal risk” because current 21 BOP policy provides that in exigent circumstances any staff member may conduct a pat 22 search of any inmate. Id. at 3-4. She claims that there have been “over 15 exigent 23 circumstances […] and it is foreseen (sic) that USP-Tucson will undergo more, due to, the 24 Monsoon season in Tucson, Arizona will knock out the security fence and power to the 25 prison which is customary in this environment including inevitable violence[.]” Id. at 4. 26 Plaintiff thus asserts that her case fits within the capable of repetition yet evading review 27 exception to the mootness doctrine. Id. Plaintiff also expands the scope of her requested 28 relief and asks the Court to “grant the [p]reliminary [i]njunction directing the Defendants 1 to amend their [p]olicy of cross gender pat searches (5200.08) […] stipulating that all 2 transgenders medically diagnosed with Gender Dysphoria should automatically be granted 3 a yellow card for female pat and visual searches only regardless of exigent circumstances 4 and shall not be abridged due to it is a [m]edical need opposed than (sic) a reversable 5 privelege (sic).” Id. at 9 (emphasis in original). 6 “The mootness exception for claims that are capable of repetition, yet evade review, ‘is 7 limited to extraordinary cases in which (1) the duration of the challenged action is too short 8 to be fully litigated before it ceases, and (2) there is a reasonable expectation that the 9 plaintiff will be subjected to the same action again.’” Alvarez v. Hill, 667 F.3d 1061, 1064 10 (quoting C.F. ex rel Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 11 2011) (internal quotation marks, alternations omitted). The party asserting that the 12 exception applies bears the burden of demonstrating both requirements are satisfied. 13 Assuming that the challenged denial of a yellow identification card is too short to be 14 fully litigated, the Court finds that Plaintiff has failed to establish that there is a reasonable 15 expectation that she will be subject to the same action again; namely, the denial of a yellow 16 marked identification card. In her reply, Plaintiff focuses on the fact that she may be 17 subjected to a male pat search in an exigent circumstance. (Doc. 32 at 5.) To the extent 18 Plaintiff argues that absent an injunction she will still be subjected to male pat searches due 19 to the prison’s “exigent circumstances” policy, that is speculation, which is insufficient to 20 support injunctive relief. If Plaintiff continues to be pat searched by male officers 21 unnecessarily or under what she believes are pretextual circumstances, she may renew her 22 Motion with supporting facts and evidence. 23 … 24 … 25 … 26 … 27 … 28 … 1 IV. CONCLUSION 2 In denying Plaintiffs Motion for injunctive relief, the Court is not dismissing the action; Plaintiffs Eighth Amendment medical care claim and Fifth Amendment Equal Protection claim will continue to be litigated. For the foregoing reasons, 5 IT IS HEREBY ORDERED DENYING AS MOOT Plaintiffs Emergency Ex Parte 6|| Motion for TRO (Doc. 22). 7 Dated this 7th day of July, 2022. 8 9

10 9S MH herb onorable John C. Hinderaker 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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