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Saunders-Velez v. Colorado Department of Corrections

United States District Court, D. Colorado

April 20, 2018

LINDSAY ALEXANDRIA SAUNDERS-VELEZ, a/k/a Elias Alexander Saunders-Velez Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS, TRAVIS TRANI, MIKE ROMERO, RICK RAEMISCH, RYAN LONG, KELLIE WASKO, DENVER RECEPTION & DIAGNOSTIC CENTER, and COLORADO TERRITORIAL CORRECTIONAL FACILITY, Defendants.

          OPINION AND ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND SETTING HEARING

          Marcia S. Krieger Chief United States District Judge.

         THIS MATTER comes before the Court pursuant to Ms. Saunders-Velez's Emergency Ex Parte Request for Temporary Restraining Order (# 38).[1]

         FACTS

         Ms. Saunders-Velez is a transgender inmate in the custody of the Colorado Department of Corrections (“CDOC”). She commenced this action pro se, [2] alleging violations of 42 U.S.C.§ 1983, implicating her rights under the Fourth and Eighth Amendment to the U.S. Constitution. She contends, among other things, that the Defendants have not provided her with adequate medical treatment for her gender identity disorder (e.g. by refusing to address her with female pronouns, by denying her access to appropriate clothing and commissary items consistent with her gender identity, etc.) and that the Defendants require her to undergo physical searches conducted by male prison officials despite the fact that “she does not feel safe” in such circumstances.[3]

         April 20, 2018, Ms. Saunders-Velez, through counsel, filed the instant Motion for Temporary Restraining Order. The animating event recited in that motion is the fact that Ms. Saunders-Velez has been convicted of a disciplinary offense and sentenced to a 30-day assignment to “Cell House 3's punishment pod.” Ms. Saunders-Velez alleges that, during a previous housing assignment to Cell House 3 (although apparently not the “punishment pod”), she was subjected to instances in which fellow inmates would remove a “privacy screen” that she was authorized to put up when using her cell's bathroom facilities, causing her to be exposed to the view of other inmates. Ms. Saunders-Velez also makes general allegations that “throughout her incarceration with CDOC” - a period encompassing at least three different housing assignments at two different prison facilities -- she has been “repeatedly threatened with sexual assault and/or the request for sexual favors” and was “sexually assaulted by a male inmate” on an occasion in December 2017.[4] The motion expresses concern about Ms. Saunders-Velez's assignment to the “punishment pod, ” noting that it “has very little supervision by prison staff” and that Ms. Saunders-Velez believes that there are as many as four inmates currently assigned to that pod that have “threatened her with sexual assault and/or requested sexual favors from her” in the past. Ms. Saunders-Velez has expressed to her counsel a “genuine fear that she would be subjected to sexual violence if placed in Cell House 3” and her counsel expresses a concern because, on at least one occasion in the past, Ms. Saunders-Velez has resorted to self-harm in order to effectuate a transfer from a housing assignment she considered unsafe.

         Notably, although Ms. Saunders-Velez initially appears to have intended to seek relief preventing her transfer to the punishment pod, her motion notes that, by the time it was drafted, that transfer had already occurred. Thus, her Prayer for Relief requests that the Court “prohibit CDOC from holding Ms. Saunders-Velez in the punishment pod at Cell House 3.”

         ANALYSIS

         A. Standard of review

         To obtain an ex parte temporary restraining order, Ms. Saunders-Velez must first comply with Fed.R.Civ.P. 65(b)(1). That rule requires her to: (i) demonstrate, via affidavit or verified complaint, facts that show that she will suffer irreparable harm before the defendants can be heard in opposition, Rule 65(b)(1)(A); and (ii) certify in writing any efforts that the she has made to give the defendant notice of the motion and the reasons why such notice should not be required, Rule 65(b)(1)(B).

         In addition, Ms. Saunders-Velez must also make a sufficient showing as to the traditional elements for provisional injunctive relief: (i) that there is an imminent and irreparable harm that she will suffer if the injunction is not granted; (ii) a substantial likelihood that she will prevail on the merits of her claims; (iii) the balance of the equities favors the granting of the request; and (iv) that the injunction would not be contrary to the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). Moreover, where the injunction being requested is mandatory in nature - as it is here, insofar as Ms. Saunders- Velez seeks an injunction that would disrupt the current status quo and require CDOC to transfer her to another housing assignment - the factors are “closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” and require a “strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” O Centro Espirita Beneficienty Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004).

         B. Merits

         The Court will put aside the procedural requirements of Rule 65(b)(1) for the moment, mindful that counsel for Ms. Saunders-Velez has only recently appeared during the pertinent events, leaving little time for preparation of supporting affidavits.

         Nevertheless, the Court finds that Ms. Sanders-Velez has not made a showing of either an imminent and irreparable injury, nor a likelihood of success on the merits of her claims, that would warrant issuance of a temporary restraining order. Turning first to success on the merits, the Court notes that, at present, Ms. Saunders-Velez's Amended Complaint asserts claims challenging the sufficiency of the therapeutic treatment she is receiving for her gender dysphoria and her obligation to submit to searches conducted by male prison officials. Even assuming she achieves complete success on these claims, the remedies available to her are fairly narrow and none would require CDOC to modify her housing assignment in any way.[5] A preliminary injunction is a means of providing a party with provisional relief that they might ultimately obtain on a permanent basis if the litigation succeeds; it is not an invitation for the Court to grant relief that is entirely orthogonal to the substantive claims asserted in the action, simply because such relief is convenient or desirable to a movant. Admittedly, Ms. Saunders-Velez's most recent pro se “Memorandum” filing suggests that she was contemplating amending her complaint to assert what could be considered an 8th Amendment claim for failure to protect her from assaults from her fellow inmates. If such a claim were at issue in this suit, the Court might be willing to say that the provisional relief Ms. Saunders-Velez seeks - a reassignment of her housing location - is relief that would be available to her on the merits. But, as yet, Ms. Saunders-Velez has not moved to make such an amendment, nor has the Court granted such. Accordingly, the Court cannot say that Ms. Saunders-Velez has demonstrated a likelihood of success on the merits of any claim that would entitle her to relief in the form she seeks.

         More importantly, the Court also finds that Ms. Saunders-Velez has not adequately alleged that she is likely to suffer an imminent, irreparable harm. In this regard, the Court pauses to attempt to identify the specific harm(s) contemplated by Ms. Saunders-Velez's motion. Certainly, the most concerning harm would be Ms. Saunders-Velez suffering a physical assault of some kind from a fellow inmate due to her placement in the punishment pod. The motion is somewhat oblique on the likelihood of this occurring. It alleges that Ms. Saunders-Velez did indeed suffer a physical assault by another inmate in December 2017, but does not identify the perpetrator, much less state that the perpetrator is presently housed in the punishment pod. (Indeed, a fair reading of the motion suggests that the assault occurred after Ms. Saunders-Velez was transferred out of Cell House 3 entirely, and was residing in Cell House 7 - presumably, the housing assignment to which she would return if the injunction she seeks were granted.) Ms. Saunders-Velez has identified at least one actual resident of the punishment pod that she fears (and three other potential residents), but it is not clear that this resident is one who has ‚Äúthreatened ...


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