Norsworthy v. Beard et al
Filing
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ORDER DENYING MOTION TO STAY ORDER GRANTING PRELIMINARY INJUNCTION by Judge Jon S. Tigar denying 99 Motion to Stay. (wsn, COURT STAFF) (Filed on 4/27/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MICHELLE-LAEL B. NORSWORTHY,
Case No. 14-cv-00695-JST
Plaintiff,
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v.
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JEFFREY BEARD, et al.,
Defendants.
ORDER DENYING MOTION TO STAY
ORDER GRANTING PRELIMINARY
INJUNCTION
Re: ECF No. 99
United States District Court
Northern District of California
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Before the Court is a Motion to Stay Order Granting Preliminary Injunction filed by
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Defendants J. Beard, M. Spearman, R. Coffin, J. Lozano, A. Adams, A. Newton, D. Van Leer, and
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L. Zamora. ECF No. 99. For the reasons set forth below, the Court will deny the motion.
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I.
BACKGROUND
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In this action under 42 U.S.C. § 1983, Plaintiff Michelle-Lael B. Norsworthy, a California
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Department of Corrections and Rehabilitation (“CDCR”) inmate, seeks injunctive relief based on
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Defendants’ failure to (1) provide her with medically necessary sex reassignment surgery (“SRS”)
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and (2) allow her to pursue a legal name change. First Amended Complaint, ECF No. 10 ¶ 1.
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On April 2, 2015, the Court granted Norsworthy’s motion for a preliminary injunction and
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ordered Defendants to provide Plaintiff with access to adequate medical care, including SRS.
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Order Granting Motion for Preliminary Injunction, Granting Request for Judicial Notice, and
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Denying Motion to Strike (“Order”), ECF No. 94 at 38. The Court concluded that Norsworthy has
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shown that she is likely to succeed on the merits of her deliberate medical indifference claim, that
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she is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
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hardships tips in her favor, and that an injunction is in the public interest. Id. at 34, 37; see Winter
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v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Court ordered Defendants to take
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all of the actions reasonably necessary to provide Norsworthy SRS as promptly as possible.
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Order at 38.
On April 10, 2015, Defendants filed the instant motion to stay the Court’s order pending
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review by the Ninth Circuit. ECF No. 99. Plaintiff opposes the motion. ECF No. 115.
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II.
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LEGAL STANDARD
Federal Rule of Civil Procedure 62(c) authorizes the Court to suspend an order granting an
injunction pending appeal. A stay is “an exercise of judicial discretion, and the propriety of its
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issue is dependent upon the circumstances of the particular case. The party requesting a stay bears
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the burden of showing that the circumstances justify an exercise of that discretion.” Nken v.
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Holder, 556 U.S. 418, 433-34 (2009) (internal alterations, citations, and quotation marks omitted).
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A stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.”
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United States District Court
Northern District of California
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Id. at 427.
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“The standard for determining whether to grant a stay pending appeal is similar to the
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standard for issuing a preliminary injunction.” Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 12-
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cv-00630-LHK, 2012 WL 2576136, at *1 (N.D. Cal. July 3, 2012) (citing Tribal Vill. of Akutan v.
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Hodel, 859 F.2d 662, 663 (9th Cir. 1988); Winter, 555 U.S. at 20). In making this determination,
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a court balances four factors: (1) whether the movant has made a strong showing that it is likely to
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succeed on the merits; (2) whether the movant will be irreparably injured absent a stay;
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(3) whether a stay will substantially injure the other parties interested in the proceeding; and
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(4) where the public interest lies. Nken, 556 U.S. at 434; see also Leiva-Perez v. Holder, 640 F.3d
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962, 964-66 (9th Cir. 2011). The standard for granting a stay is a continuum. “[I]f there is a
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‘probability’ or ‘strong likelihood’ of success on the merits, a relatively low standard of hardship
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is sufficient,” but “if the balance of hardships tips sharply in . . . favor’ of the party seeking the
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stay, a relatively low standard of likelihood of success on the merits is sufficient.” Golden Gate
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Restaurant Ass’n v. City and County of San Francisco, 512 F.3d 1112, 1119 (9th Cir. 2008)
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(quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)); see also Leiva-Perez, 640 F.3d
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at 965-67, 970. The first two factors “are the most critical.” Nken, 556 U.S. at 434.
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III.
DISCUSSION
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A.
Likelihood of Success on the Merits
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Courts use different formulations to describe the first Nken factor, including “reasonable
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probability,” “fair prospect,” “substantial case on the merits,” and “serious legal questions . . .
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raised.” Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012). These formulations “are largely
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interchangeable,” and “indicate that, ‘at a minimum,’ a petitioner must show that there is a
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‘substantial case for relief on the merits.’” Id. (quoting Leiva-Perez, 640 F.3d at 968). “The
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standard does not require the petitioners to show that ‘it is more likely than not that they will win
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on the merits.’” Id. (quoting Leiva-Perez, 640 F.3d at 966).
Defendants argue that they meet this prong for two reasons. First, Defendants contend that
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United States District Court
Northern District of California
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their appeal of this Court’s order granting a preliminary injunction implicates a serious legal
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question of first impression in the Ninth Circuit: “whether a treatment plan involving hormone
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therapy, counseling, and other non-surgical treatments for gender dysphoria meets the
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constitutional minimum in cases where, as here, it purportedly fails to alleviate the inmate’s
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mental distress.” ECF No. 99 at 4. Second, Defendants contend that they are likely to succeed on
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the merits because a mandatory injunction requiring them to provide surgery to Norsworthy
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should not have issued. Id. at 4-5.
The Court agrees that Defendants’ appeal raises a “serious legal question” that satisfies
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that formulation of the likelihood of success prong of the stay analysis. See United States v. 2366
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San Pablo Ave., No. 13-cv-02027-JST, 2015 WL 525711, at *2 (N.D. Cal. Feb. 6, 2015). Plaintiff
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argues that the Court’s decision to grant a preliminary injunction is based on well-established legal
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principles, and that Defendants’ motion merely asserts that the Court misapplied the facts in this
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case to those legal standards. ECF No. 115 at 5. But Defendants’ argument that CDCR need not
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provide SRS to patients with gender dysphoria, even where other treatment options fail to alleviate
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an inmate’s suffering, suggests a distinct standard for the treatment of gender dysphoria, and has
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not yet been addressed by the Ninth Circuit.1
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Plaintiff’s argument that the First Circuit has rejected any bright line rule denying SRS to
inmates who receive counseling and hormone therapy simply underscores the fact that the
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Defendants have not, however, established that they are likely to succeed on the merits of
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their appeal. In granting a mandatory preliminary injunction requiring surgery, this Court
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recognized that mandatory injunctions are “particularly disfavored,” and “are not granted unless
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extreme or very serious damage will result and are not issued in doubtful cases.” Order at 24
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(quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.
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2009)). The Court granted the preliminary injunction only after concluding that Norsworthy was
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likely to succeed on the merits of her deliberate indifference claim, Order at 34 (“This is not a
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doubtful case” (quotation marks and alterations omitted)); and that she is suffering serious
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psychological and emotional harm, id. at 25, 28, 34-36.
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Defendants argue that Norsworthy has received sufficient treatment for her gender
United States District Court
Northern District of California
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dysphoria, relying on the opinions of Dr. Coffin and Dr. Levine; that Dr. Reese’s opinions are
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unsupported; that Norsworthy has failed to demonstrate that her condition has worsened such that
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she requires SRS immediately; and that Norsworthy’s difference of opinion with prison medical
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staff does not give rise to a Section 1983 claim. ECF No. 99 at 5-8. The Court already considered
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these arguments in deciding Plaintiff’s motion for a preliminary injunction, and reached a
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reasoned conclusion rejecting them. See Order at 25-34. As explained in the Court’s April 2,
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2015, order, it is Norsworthy, and not Defendants, who has established that she is likely to prevail
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on the merits.
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B.
Irreparable Injury to the Moving Party
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Defendants argue that they will suffer irreparable harm absent a stay because the Court’s
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order forces CDCR to perform “a procedure that is wholly undefined in the order and that several
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doctors have specifically advised against;” and because it could require CDCR to perform any
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number of procedures on any transgender inmate who has undergone twelve months of hormone
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therapy and asserts that the procedure is necessary to alleviate his or her gender dysphoria,
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notwithstanding CDCR’s safety and security concerns. ECF No. 99 at 8-9. These arguments are
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question has not been resolved in our circuit. See Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir.
2014) (en banc) (“[A]ny such [blanket] policy would conflict with the requirement that medical
care be individualized based on a particular prisoner’s serious medical needs.”).
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unpersuasive.
First, Defendants have repeatedly used the term SRS in their briefing, declarations, and
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oral presentations to the Court without raising any argument about its ambiguity. Their argument
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that “sex reassignment surgery” is ambiguous will not be considered for the first time here. Cf.
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Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (a motion for
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reconsideration may not be used to raise arguments for the first time when they could reasonably
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have been raised earlier in the litigation); In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th
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Cir. 2000) (absent exceptional circumstances, the Court of Appeals generally will not consider
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arguments raised for the first time on appeal). To the extent that Defendants find the Court’s order
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United States District Court
Northern District of California
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unclear, they may file a motion for clarification.
Second, the Court has already found the opinions of Dr. Coffin and Dr. Levine, who
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concluded that SRS is not medically necessary for Norsworthy, to be unreliable and convincingly
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refuted by Plaintiff’s experts. Order at 28-30, 31-32, 37. The Court has also weighed Defendants’
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safety and security concerns, noting that CDCR has relevant experience housing inmates who
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require surgery, one post-operative male-to-female transsexual inmate, and female inmates with a
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history of violence against women. Order at 36-37.
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Third, the Court explicitly granted a preliminary injunction only as to Plaintiff Michelle
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Norsworthy. See, e.g., Order at 25 (“She has presented extensive and consistent evidence that,
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notwithstanding years of treatment in the form of hormone therapy and counseling, she continues
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to experience severe symptoms of gender dysphoria.”); 30 (“Norsworthy is also likely to succeed
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in establishing that prison officials were deliberately indifferent to her serious medical need.”); 34
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(“The weight of the evidence demonstrates that for Norsworthy, the only adequate medical
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treatment for her gender dysphoria is SRS, that the decision not to address her persistent
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symptoms was medically unacceptable under the circumstances, and that CDCR denied her the
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necessary treatment for reasons unrelated to her medical need.”); 38 (“Defendants are ordered to
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provide Plaintiff with access to adequate medical care, including sex reassignment surgery.”). The
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order cannot reasonably be read to require CDCR to perform any surgical procedures, undefined
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or otherwise, on any other inmate.
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Defendants also assert that they will be injured absent a stay because the Court has
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effectively disposed of the entire case without a final judgment of liability and because the
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injunction potentially deprives Defendants of appellate review. ECF No. 99 at 9. As noted in the
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April 2, 2015, order, the Court takes this concern seriously, and weighed it in considering whether
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to grant a preliminary injunction. Order at 37 (concluding that the balance of hardships tips
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heavily in Norsworthy’s favor). Furthermore, the Court notes that denial of the requested stay as
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to Norsworthy will not deprive Defendants of the opportunity to present their arguments
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concerning constitutionally adequate care for patients with gender dysphoria to the Ninth Circuit,
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because Norsworthy is not the only CDCR inmate seeking SRS. See, e.g., Quine v. Beard, No.
14-cv-02726-JST (N.D. Cal. filed June 12, 2014); Rosati v. Igbinoso, No. 13-15984 (9th Cir. filed
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United States District Court
Northern District of California
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Mar. 16, 2013).
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C.
Substantial Injury to Other Parties
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The Court rejects any suggestion that Norsworthy “will not suffer any substantial injury if
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the order is stayed” and that “[t]here is no evidence that Norsworthy is in serious, immediate
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physical or emotional danger.” ECF No. 99 at 9-10. To the contrary, the Court’s order granting
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an injunction was explicitly based on the finding that Norsworthy is likely to succeed on the
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merits and that she is suffering from irreparable injury as a result of the deprivation of her Eighth
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Amendment rights. Order at 37. As explained in the order, Norsworthy has shown that she
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suffers continuing psychological and emotional pain as a result of her gender dysphoria and that
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she is at risk of significant worsening of her condition in the event that her hormone therapy must
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again be modified or discontinued because of liver complications. Order at 34-35; see also Fyock
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v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1282 (N.D. Cal. 2014) (“Irreparable harm is presumed
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if plaintiffs are likely to succeed on the merits because a deprivation of constitutional rights
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always constitutes irreparable harm.”). Plaintiff also presented evidence that she is at risk of
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renewed suicide attempts because of her past attempts and family history. See Order at 13 (citing
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ECF No. 63 ¶¶ 55, 63, 83-84). The Court concludes that a stay of the order granting a preliminary
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injunction would result in substantial injury to Norsworthy.
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D.
The Public Interest
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Defendants argue that the public interest favors a stay because: (1) “[t]he public has a
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strong interest in having this case resolved on the merits, rather than having a decision issued on
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an incomplete record and misapplication of the law;” (2) having federal courts make ad hoc
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decisions concerning the treatment of single prisoners undermines the public’s interest in
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penological order; and (3) the Court’s order takes no account of relevant administrative and
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security issues. ECF No. 99 at 10-11.
The Court has concluded that an injunction is in the public interest, as it “is always in the
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public interest to prevent the violation of a party’s constitutional rights” and the “public has a
strong interest in the provision of constitutionally-adequate health care to prisoners.” Order at 37
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United States District Court
Northern District of California
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(quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); McNearney v. Wash. Dep’t of
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Corr., No. 11-cv-5930-RBL/KLS, 2012 WL 3545267, at *16 (W.D. Wash. June 15, 2012)). The
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injunction does not inappropriately inject the federal courts into treatment decisions − it is based
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on this Court’s conclusion that Norsworthy is likely to establish that Defendants have violated the
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Eighth Amendment’s prohibition on cruel and unusual punishment by disregarding her health care
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provider’s recommendations for administrative, rather than medical, reasons. See Estelle v.
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Gamble, 429 U.S. 97, 104 (1976).2 And, as discussed above, the Court has considered and
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weighed Defendants’ safety and security concerns. Order at 36-37.
Defendants’ argument that the Court reached its conclusion on an inadequate record is not
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supported by the facts. As Plaintiff explains, the parties engaged in extensive discovery, including
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the production of thousands of documents and the taking of seven depositions, before the
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preliminary injunction hearing, and stipulated to one continuance of the hearing in order to allow
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for additional discovery. ECF No. 48. Defendants did not seek any further extension of discovery
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The cases Defendants cite in support of this argument do not involve deliberate medical
indifference claims. See Kelly v. Merrill, No. 14-cv-2322, 2014 WL 7740025 (M.D. Pa. Dec. 11,
2014) (involving inmate discipline, denial of parole, access to legal resources, mail service, and
alleged verbal harassment and intimidation); Wylie v. Mont. Women’s Prison, No. 13-cv-53BLG-SEH, 2014 WL 6685983 (D. Mont. Nov. 25, 2014) (involving a request that the Court order
a prison to return property, allow plaintiff an alternate means to retain legal work, and replace lost
or destroyed documents).
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for the purpose of deposing the parties’ experts or Dr. Reese, and explicitly opposed any
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additional continuances of the hearing. ECF No. 71 at 119. And although the Court invited the
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parties to request an evidentiary hearing if necessary, ECF Nos. 33, 48, Defendants did not seek
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such a hearing. Defendants cannot now be heard to complain that the record is inadequate.
In summary, the Court concludes that Defendants have not shown that they are likely to
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succeed on the merits of their appeal, but agrees that the appeal of the Court’s order granting a
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preliminary injunction does raise a serious legal question. Further, Defendants have shown that
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they may suffer irreparable injury if the stay is denied to the extent they argue that denial of a stay
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potentially deprives them of appellate review. On the other hand, the Court concludes that
Norsworthy has established that she is likely to prevail on the merits of her deliberate indifference
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United States District Court
Northern District of California
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claim, and that she is suffering from irreparable injury as a result of the deprivation of her Eighth
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Amendment rights. Consequently, the balance of hardships tips heavily in her favor. Finally, the
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public interest weighs against a stay. Balancing these factors, the Court concludes that the motion
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for a stay must be denied. See Leiva-Perez, 640 F. 3d at 970 (“a petitioner seeking a stay of
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removal must show that irreparable harm is probable and either: (a) a strong likelihood of success
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on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial
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case on the merits and that the balance of hardships tips sharply in the petitioner’s favor.”).
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IV.
CONCLUSION
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For the foregoing reasons, the motion to stay is denied. In light of this Court’s denial of
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the motion, Defendants may move for a stay in the court of appeals pursuant to Federal Rule of
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Appellate Procedure 8(a)(2).
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IT IS SO ORDERED.
Dated: April 27, 2015
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______________________________________
JON S. TIGAR
United States District Judge
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