Edmo v. Corizon Incorporated et al

Filing 244

ORDER DENYING DEFENDANTS' EXPEDITED MOTION TO STAY re 228 Expedited Motion to Stay. IT IS ORDERED that Defendants' Expedited Motion to Stay (Dkt. 228 ) is DENIED. The deadline for scheduling and completion of the first hair removal app ointment will remain vacated pending the Court's decision following the hearing described above. Defendants may file a motion requesting that the Court consider alternative means of remedying their established violation of the Plaintiff's E ighth Amendment rights. Such a motion must be filed by November 15, 2019. Plaintiffs shall respond with any briefs, affidavits, or other evidentiary materials they wish to submit by November 20, 2019. A hearing on Defendants' motion will be conducted on November 21, 2019, at 9:00 a.m. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ADREE EDMO,
Case No. 1:17-cv-00151-BLW
Plaintiff,
v.
IDAHO DEPARTMENT OF
CORRECTION; HENRY ATENCIO;
JEFF ZMUDA; HOWARD KEITH
YORDY; CORIZON, INC.; SCOTT
ELIASON; MURRAY YOUNG;
RICHARD CRAIG; RONA
SIEGERT; CATHERINE
WHINNERY; AND DOES 1-15,

ORDER DENYING
DEFENDANTS’ EXPEDITED
MOTION TO STAY

Defendants.
INTRODUCTION
Pending before the Court is Defendants’ expedited motion to stay this
Court’s order of October 24, 2019, pending appeal to the United States Court of
ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 1

Appeals for the Ninth Circuit. (Expedited Motion to Stay, Dkt. 228; Notice of
Appeal, Dkt. 227.) The Court’s order requires Defendants to provide all presurgical treatments and related corollary appointments or consultations
necessary for the Plaintiff to undergo gender confirmation surgery. (See Dkt.
225 (“Presurgical Order”).)
After careful consideration of the motion, the parties’ arguments, the
procedural and factual record, and relevant law, the Court will deny the
expedited motion to stay. However, the Court will defer setting a deadline for
Plaintiff to receive her first hair removal treatment to allow the Court to hold a
limited hearing for purposes outlined below.
BACKGROUND
On December 13, 2018, the Court issued a decision concluding that by
refusing to provide Plaintiff gender confirmation surgery to treat her severe
gender dysphoria, Defendants violated the Eighth Amendment to the
Constitution of the United States of America. The Court granted Plaintiff’s
motion for injunctive relief, and ordered Defendants to “take all actions
reasonably necessary to provide Ms. Edmo gender confirmation surgery as
promptly as possible and no later than six months from the date” of the order.
(Dkt. 149 at 45 (“2018 Order”). Defendants appealed the decision, and moved
the Court to stay the injunction pending resolution of the appeal. (Dkt. 154; Dkt

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 2

156.) Although the Court denied the motion to stay, a Ninth Circuit motions
panel granted a stay pending appeal. (Dkt. 182.) Later, Plaintiff filed a motion
to modify the appellate stay to exempt a previously scheduled presurgical
appointment with the surgeon chosen by Defendants to perform the gender
confirmation surgery, Dr. Geoffrey Stiller. The panel granted the motion, and
the presurgical appointment took place on April 12, 2019. (Dkt. 187.)
Dr. Stiller’s medical assessment record from the presurgical appointment
included notes that are pertinent to Defendants’ motion. (Exhibit A to
Defendants’ Memorandum in Support of the Expedited Motion to Stay, Dkt.
228-2 at 12.) Dr. Stiller noted that he discussed the pros and cons of two gender
confirmation surgery techniques—penile inversion vaginoplasty and
colovaginoplasty. Id. The notes include that Dr. Stiller discussed with Plaintiff
the fact that hair removal was “needed” for the penile inversion technique. Id.
Dr. Stiller noted also that, should Plaintiff proceed with the colovaginoplasty
technique, “the first stage can be completed with hair removal” followed by the
surgery six (6) months later. Id.
On August 23, 2019, the Ninth Circuit affirmed the 2018 Order, holding
Defendants violated Plaintiff’s Eighth Amendment right to adequate and
necessary medical treatment of her severe gender dysphoria by denying gender
confirmation surgery. (Dkt. 209.) Defendants filed a petition for rehearing en

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 3

banc, which as of the date of this order is pending.
Subsequently, Plaintiff filed a motion requesting the Ninth Circuit
partially lift its stay of the 2018 Order to enable her to receive all necessary
presurgical treatments. In support of the motion, Plaintiff submitted a letter
from Dr. Stiller wherein he provided an estimation that completion of all
presurgical treatments and prerequisites would take at least six months. The
Ninth Circuit granted Plaintiff’s motion for partial lifting of the stay. (Dkt. 220.)
The court found that, as the proponents of the stay, Defendants failed to show
irreparable harm was probable “with respect to the limited nature of Plaintiff’s
request.” Id. at 2. The court found also that Defendants failed to meet their
burden to show a substantial case on the merits or that the balance of the
hardships tipped sharply in their favor. Id. at 2. Accordingly, the Ninth Circuit
partially lifted the appellate stay of the 2018 injunction “so that Plaintiff may
receive all presurgical treatments and related corollary appointments or
consultations necessary for gender confirmation surgery.” Id.
In light of the partial lifting, the Court held a status conference with
counsel for the parties. (Dkt. 222.) During the conference, counsel for
Defendant Corizon suggested, for the first time, that his client was confused or
uncertain regarding the specific presurgical requirements and the type of gender
confirmation surgery required by the 2018 Order and the Ninth Circuit’s August

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 4

2019 decision. Given Defendants’ contentions, the Court ordered Plaintiff to file
a submission detailing the presurgical requirements indicated by the performing
surgeon, Dr. Stiller.
Plaintiff filed the submission on October 22, 2019. (Dkt. 224.)
According to the submission, three presurgical requirements remain
outstanding: (1) a physician referral letter, (2) laser treatment or electrolysis of
the surgical area, and (3) documentation of approval for payment. Id. With the
presurgical requirements clarified, the Court issued the Presurgical Order,
which requires Defendants to take steps to ensure the three remaining
presurgical requirements are completed in a timely manner. To this end, the
Court required Defendants to schedule and ensure that Plaintiff’s first hair
removal treatment take place on or before November 8, 2019.
The Court held a second status conference with Counsel for the parties on
October 30, 2019. (Dkt. 230.) The purpose of the status conference was to
obtain an update from Defendants on their progress in complying with the
Presurgical Order. Counsel for Defendants noted Plaintiff’s first hair removal
treatment had been scheduled for November 7, 2019. Defendants filed the
present motion and notice of appeal on October 31, 2019. (Dkt. 227, 228.)
Plaintiff filed a response to the motion November 5, 2019. (Dkt. 235.) The
following day, the Court vacated the November 8, 2019 hair removal treatment

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 5

deadline to allow careful and full consideration of Defendants’ expedited
motion to stay. (Dkt. 239.) The Court will now discuss the merits of the motion.
STANDARD OF LAW
Federal Rule of Civil Procedure 62(d) provides that, when “an appeal is
pending from an interlocutory order or final judgment that grants … an
injunction,” a “court may suspend, modify, or restore an injunction on …. terms
that secure the opposing party’s rights.” Pertinent to the present motion, a court
may stay, i.e. “hold an order in abeyance pending [its] review.” Nken v. Holder,
556 U.S. 418, 427 (2009).
The traditional standard used to determine whether a stay of an order
should issue pending appeal of the order requires a court to consider four
factors: “(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public interest
lies.” Id. (internal citations omitted). The party requesting the stay bears the
burden of showing it is warranted under the circumstances. Id. at 433-34. The
first two factors are considered “the most critical” to a court’s determination. Id.
at 434. Ultimately, however, a stay is “an exercise of judicial discretion” where
the propriety “of its issue is dependent upon the circumstances of the particular

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 6

case.” Id.
ANALYSIS
The recent procedural history of this case bears on the Court’s analysis of
the propriety of a stay of the Presurgical Order. Defendants’ motion comes on
the heels of a decision from the Ninth Circuit to partially lift the appellate court
stay of the 2018 Order. In issuing the order, the Ninth Circuit found
“Defendants, as the proponents of the stay,” did not show “that irreparable harm
is probable with respect to the limited nature of Plaintiff’s request” and also did
not show “that they have both a substantial case on the merits and the balance of
hardships tips sharply in their favor.” (Dkt. 220 at 2 (citing Leiva-Perez v.
Holder, 640 F.3d 962, 970 (9th Cir. 2011) (per curiam) (internal citations
omitted)).
Defendants now ask this Court to reconsider the factors and arguments
fully considered by the Ninth Circuit. Furthermore, Defendants’ motion
involves, as its subject, the same core issue presented to the circuit—the
performance of presurgical treatments pending conclusion of appellate review.
Defendants’ motion viewed in the best light invites the Court to engage in a
circular exercise; in the worst light it suggests an attempt to relitigate decided
issues and to delay provision of the presurgical treatments ordered by the Ninth
Circuit.

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 7

While gravely concerned that the Defendants’ filings are for the purpose
of delay and do not reflect any real misunderstanding of the Court’s prior
decision, the Court will not preclude the Defendants from presenting, on an
expedited basis, their belated argument that other gender confirmation surgery
techniques would cure the constitutional violation at issue in this case. The
Court will discuss that issue in the context of the factors it must consider when
deciding whether to issue a stay pending appeal.
1.

Defendants have not shown a strong likelihood of success on appeal.
Defendants argue they have a strong likelihood of success on appeal of

Presurgical Order for three reasons: (1) the Court lacked jurisdiction to issue the
order; (2) the Court “materially modified” the 2018 injunction without affording
Defendants an opportunity to be heard; and (3) the order is overbroad under the
PLRA and contrary to the Eighth Amendment.
In response, Plaintiff asserts the Presurgical Order is not appealable
because it is not a modification of the 2018 injunction. In the alternative,
Plaintiff argues that even if the order did modify the injunction, Defendants do
not have a case for relief because the appeal does not present any serious legal
questions for the Ninth Circuit’s interlocutory determination.
A.

The Court had jurisdiction to issue the Presurgical Order.

Defendants first contend this Court did not have jurisdiction to issue the

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 8

Presurgical Order because the order itself materially modified the December
2018 injunction. In support of this contention, Defendants assert the Presurgical
Order affects two core questions within their original appeal. The first, whether
the injunction was overbroad under the PLRA because the Court failed to define
the terms “gender confirmation surgery” and “adequate medical care.” (Dkt.
228-1 at 4.) The second, whether the injunction was overbroad, premature, or
intrusive “given the lack of evidence” that Plaintiff had the requisite letter of
referral from mental health practitioners to be a candidate for gender
confirmation surgery.
The Court finds Defendants’ argument that it lacked jurisdiction to issue
the Presurgical Order completely unpersuasive. First, the Ninth Circuit partially
lifted the stay of the Court’s 2018 Order and injunction. The express reason for
partial lifting of the stay was to allow Plaintiff to receive all necessary
presurgical treatments, consultations, and corollary appointments. The Ninth
Circuit made this ruling after considering arguments substantially similar to the
arguments Defendants make in the present motion. Importantly, Federal Rule of
Civil Procedure 62(d) permits the Court discretion to “modify, restore, or grant
an injunction” on “terms that secure” the rights of the party opposing appeal of
an interlocutory order or final judgment regarding an injunction. Fed. R. Civ. P.
62(d). Therefore, the Court both had jurisdiction and the authority to issue the

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 9

Presurgical Order.
B.

Defendants had ample opportunity to be heard.

Defendants argue that the Presurgical Order violated their due process
rights because the Court invited only Plaintiff to submit evidence regarding prerequisites to surgery. This characterization is completely inaccurate and
unfounded.
Defendants have been on notice since at least March of 2019 regarding
the presurgical requirements for a gender confirmation surgery. (March 1, 2019
Letter, Dkt. 224-1 at 16-17, Ex. 2.) Defense counsel detailed the following in a
March 1, 2019 letter to Plaintiff’s counsel:

Id. at 17.
Yet, Defendants assert in their motion that colovaginoplasty does not
require hair removal. Defendants provide scant evidence1 in support of this

The only evidence supplied to support Defendants’ contention that hair removal is not medically necessary as a
part of the colovagioplasty gender confirmation surgery technique, is subject to a hearsay-based motion to strike
statements contained in the Declaration of April Dawson, regional Medical Director for Corizon. (See Dkt. 228-2 at
4-5.)
1

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 10

assertion. However, in addition to the letter cited immediately above, there is
other evidence in the record that raises questions about Defendants’ contention.
For example, Defendants include as Exhibit A to their memorandum in support
of the motion for expedited stay, an assessment report completed by Dr. Stiller
after the April 2019 presurgical consultation with Plaintiff. (Dkt. 228-2 at 12.)
Dr. Stiller’s notes state that the first step to the colovaginoplasty technique
would be hair removal treatments starting six months prior to surgery. Id.
Additionally, the presurgical requirements for gender confirmation
surgery were presented to the Ninth Circuit when Plaintiff filed her motion for
partial lifting of the stay. (See Plaintiff-Appellant’s Motion for Partial Lifting of
Stay, USCA Case No. 19-35019.) Defendants submitted a response brief to the
motion that called into question the provision of the hair removal treatments.
After consideration of Defendants’ arguments against partially lifting the stay,
the Ninth Circuit nevertheless granted Plaintiff’s motion. The Ninth Circuit
determined that Defendants had failed to carry their burden to show that
irreparable harm is probable if the presurgical treatments are completed –
including hair removal. That is the law of the case. See United States v.
Alexander, 106 F.3d 874, 876–77 (9th Cir. 1997) (“Under the ‘law of the case’
doctrine, a court is generally precluded from reconsidering an issue that has
already been decided by the same court, or a higher court in the identical case.”

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 11

(internal quotations and citations omitted)).
Despite this background, as detailed above, during the telephonic
conference with the parties on October 17, 2019, Defense counsel indicated
their clients do not have proper guidance either from this Court or the Ninth
Circuit as to what presurgical requirements are required for gender confirmation
surgery. Provided Defendants’ contention, the Court directed Plaintiff’s counsel
to file a submission detailing the presurgical requirements that remain to be
completed according to the performing surgeon, Dr. Stiller. Notably, these were
essentially the same presurgical requirements Defense counsel detailed in the
letter of March 1, 2019.
Finally, during the telephonic status conference, the Court stated that it
intended to give full effect to the Ninth Circuit’s order partially lifting the stay,
but also acknowledged Defendants’ right to file a motion raising argument to
challenge the presurgical requirements—which is exactly what Defendants have
done. The Court is presently considering Defendants’ arguments in context.
Thus, given Defendants’ prior opportunities to raise the issue regarding the
necessity of hair removal prior to the available gender confirmation surgery
techniques, and the Court’s consideration of the contention within this order, the
assertion that they have not had the opportunity to be heard on this issue is
completely unsupported.

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 12

C.

Notable PLRA and Eighth Amendment considerations.

Finally, Defendants assert they are likely to prevail on the merits of their
appeal of the Presurgical Order because it is overbroad under the PLRA and
contrary to the Eighth Amendment. To this end, Defendants argue the Eighth
Amendment does not provide a right to a specific treatment or to the best
possible care. Relatedly, Defendants note the PLRA mandates that Defendants
correct a constitutional violation and that any correction must be made by the
least intrusive means necessary. See 18 U.S.C. § 3626(a)(1)(A).
It is true that differences in judgment between inmate and prison medical
personnel regarding appropriate medical treatment are not enough to establish a
deliberate indifference claim under the Eighth Amendment. Sanchez v. Vild,
891 F.2d 240, 242 (9th Cir.1989). However, when there are choices between
alternative treatments, a prisoner can successfully challenge a chosen treatment
if there is evidence it is “medically unacceptable under the circumstances” and
is chosen “in conscious disregard of an excessive risk” to the inmate’s heath.
Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (alternation and
quotations omitted). However, those principles must be applied in the context
of the Court’s determination that the Defendants were deliberately indifferent to
Ms. Edmo’s Eighth Amendment rights by failing to provide her with gender
confirmation surgery which would treat her gender dysphoria. Simply put, the

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 13

surgery provided must address Ms. Edmo’s medical condition. Nothing less
will satisfy the requirements of the Eighth Amendment.
Defendants claim there are three gender confirmation treatments that may
cure the constitutional violation in this case: (1) penile inversion vaginoplasty,
(2) colovaginoplasty, or (3) a zero-depth genital removal procedure. Defendants
argue that “[t]hese are very different and distinct surgeries, and there is … no
evidence in the record to establish which is medically necessary or required to
reverse a constitutional violation.” (Dkt. 228-1 at 7.)
The Court is frustrated that this issue was not raised during the
evidentiary hearing in this matter conducted a year ago, and has not been
presented to the Court until, almost literally, the eleventh hour. Nevertheless,
the Court will provide the Defendants with the opportunity to raise the issue, but
on a very expedited basis.
Additionally, Defendants assert that the Presurgical Order modified the
injunction in violation of the PLRA by requiring Defendants to “doctor shop”
for physicians to provide the referrals necessary for Ms. Edmo to obtain gender
confirmation surgery. They assert that the order exceeds also the bounds of an
inmate’s constitutional protections under the Eighth Amendment because an
inmate, Ms. Edmo in this case, is not entitled to choose her medical provider.
This argument is circular and nonsensical. If the medical providers at the

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 14

prison will not, or cannot provide a referral necessary for an inmate to obtain
medically necessary treatment, and the denial of such treatment deprives the
inmate of rights secured by the Eighth Amendment, prison officials have an
affirmative duty to refer the inmate to medical professionals who will, and can
provide the necessary referral letters. In this case, the Court has determined, and
the Ninth Circuit has affirmed that, denial of gender confirmation surgery
violates Plaintiff’s Eighth Amendment right to receive medically necessary
treatment. It necessarily follows that to cure the violation, Defendants must
refer Ms. Edmo to physicians who will provide the requisite referral letters.
Notably, Defendants have had full opportunity to raise and argue this issue to
the Ninth Circuit.
2.
Defendants have not met their burden to show irreparably injury
absent a stay.
In granting Plaintiff’s motion to partially lift the stay, the Ninth Circuit
considered arguments from Defendants substantially similar, if not identical, to
the arguments made in the present motion to stay. The Ninth Circuit’s finding
that Defendants’ had not carried their burden to show “irreparable harm is
probable” given “the limited nature of Plaintiff’s request” is the law of the case.
See United States v. Alexander, 106 F.3d 874, 876-77 (9th Cir. 1997).
3.
The potential for harm to Plaintiff is ongoing, therefore a stay is
disfavored.

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 15

Defendants contend Plaintiff does not need to receive hair removal
treatment before undergoing a colovaginoplasty. (Dkt. 228-1 at 14.) However,
as stated above, Defendants provide no persuasive medical authority for this
assertion. Defendants also assert Plaintiff “has failed to present any evidence
that hair removal surgery is necessary before undergoing the zero depth
procedure.” This line of argument highlights the reason a limited evidentiary
hearing on these issues is necessary. However, it is not only necessary to
determine whether hair removal is medically necessary to the various surgical
techniques, but which surgical technique or techniques will be gender
confirming for Plaintiff.
Finally, Defendants assert “[t]here is little to no risk of self-castration”
during a stay “because Ms. Edmo is committed to preserving her male anatomy
for use in a future surgery.” (Dkt. 228-1 at 10, citing Evidentiary Hearing
Transcript, October 11, 2018, Vol., 2, pp. 199-200, 218, ll. 2-14.) This argument
is belied by the Court’s findings of fact and conclusions of law made in the
2018 Order after considering this same testimony within the context of all of the
facts then before the Court. In that order the Court found that, “Ms. Edmo’s
gender dysphoria results in clinically significant distress or impairment of
functioning.” (Dkt. 149 at 42.) As of the date of this order, Ms. Edmo has not
received adequate treatment for her gender dysphoria.

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 16

4.

Public interest disfavors a stay.
As stated in the Court’s 2018 Order, “the public has a strong interest in

the provision of constitutionally adequate health care to prisoners.” McNearney
v. Wash. Dep’t of Corr., 2012 WL 3545267, at *16 (W.D. Wash. 2012).
Furthermore, the public’s interest is served by ensuring that court orders and
judgments are carried out. As has been stated throughout, the Ninth Circuit
partially lifted the stay of this Court’s 2018 Order and injunction “so that
Plaintiff may receive all presurgical treatments and related corollary
appointments or consultations necessary for gender confirmation surgery.” (Dkt.
220 at 2.) The Court therefore finds the public has an interest in orders of the
courts of the United States being carried out, even if some may disagree with
the outcome.
CONCLUSION
Provided the foregoing, the Court will deny Defendants’ expedited
motion to stay the Presurgical Order pending appeal. However, the Court has
already extended the time to begin the pre-surgical procedures to provide the
Defendants with an opportunity to present to the Court its argument that it
should be allowed to provide Ms. Edmo with colovaginoplasty or zero-depth
genital removal as a means of discharging their obligations under the Eighth
Amendment. The Court will hold a limited hearing on the following discrete

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 17

issues:
1. Whether colovaginoplasty would treat Ms. Edmo’s serious medical need
for gender confirmation surgery.
2. Whether hair removal treatment, or any other pre-surgical treatment is
necessary for a medically successful outcome of a colovaginoplasty
surgery.
3. Whether a zero-depth genital removal procedure would treat Ms. Edmo’s
serious medical need for gender confirmation surgery.
4. Whether hair removal treatment is necessary for a medically successful
outcome of the zero-depth procedure.
The Court will issue a ruling on the hearsay objections subject to Plaintiff’s
Motion to Strike (Dkt. 236) in advance of the hearing.
ORDER
IT IS ORDERED that
1. Defendants’ Expedited Motion to Stay (Dkt. 228) is DENIED.
2. The deadline for scheduling and completion of the first hair removal
appointment will remain vacated pending the Court’s decision following
the hearing described above.
3. Defendants may file a motion requesting that the Court consider
alternative means of remedying their established violation of the
Plaintiff’s Eighth Amendment rights. Such a motion must be filed, along
with any briefs, affidavits, or other evidentiary materials they wish to
submit, by November 15, 2019. Plaintiffs shall respond with any briefs,

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 18

affidavits, or other evidentiary materials they wish to submit by
November 20, 2019. A hearing on Defendants’ motion will be
conducted on November 21, 2019, at 9:00 a.m.

DATED: November 8, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

ORDER DENYING DEFENDANTS’ EXPEDITED MOTION TO STAY – 19