Millhouse v. Seleshi
| Decision Date | 09 March 2023 |
| Docket Number | 2:21-cv-05210 |
| Parties | JUSTIN D. MILLHOUSE, II, aka ALEXIS MILLHOUSE, Plaintiff, v. DR. ERMIAS SELESHI, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
Justin D. Millhouse, II, aka Alexis Millhouse is a state prisoner proceeding pro se and in forma pauperis. (ECF No. 4.) Ms. Millhouse was assigned male sex at birth, but identifies as a woman. (Id.) She brings this § 1983 action alleging that she was denied hormone replacement therapy (“HRT”) under an ODRC policy for nonmedical reasons, specifically, her criminal history, in violation of the Eighth and Fourteenth Amendments. (Id.)
This matter is before the Court on the Magistrate Judge's Order and Report and Recommendation, which recommends the Court dismiss Plaintiff's claims without prejudice for lack of jurisdiction on mootness grounds. (R&R, ECF No 56.) Ms. Millhouse objected (Obj., ECF No. 58), and Defendants responded (Resp., ECF No. 60).
The Court ACCEPTS IN PART and REJECTS IN PART the findings of the Magistrate Judge. The Court finds the Defendants did not meet their burden of demonstrating that their voluntary cessation moots the case. The matter is RECOMMITTED to the Magistrate Judge for further proceedings in accordance with this Opinion and Order.
Ms. Millhouse is currently incarcerated in the Chillicothe Correctional Institution.
On November 8, 2021, she filed her complaint against Dr. Ermias Seleshi, the State Psychiatry Director, and Annette Chambers-Smith, the Director of Ohio Department of Rehabilitation and Correction, in their individual and official capacities. (ECF No. 4, PageID 99.) She alleges that while incarcerated, she was referred to mental health treatment for her gender dysphoria, but the treatment was ineffective. (Id. PageID 101.) When she requested HRT, the request was denied by Dr. Seleshi. (Id. PageID 100.) Ms. Millhouse alleges the denial was due to her criminal history pursuant to ODRC policy 69-OH-07 (the “Policy”), which was a policy approved by Ms. Chambers-Smith. (Id. PagelD 100-02.)
Ms. Millhouse asserts that the denial of HRT constitutes deliberate indifference to her gender dysphoria, a serious medical need, and seeks injunctive relief in the form of an order granting her HRT and requiring Defendants to revise the Policy to eliminate non-medical considerations and incorporate the World Professional Association of Transgender Health Standards of Care (“WPATH Standards”). (Id. PageID 100-02, 104.)
In June 2022, Ms. Millhouse filed a “Motion Requesting to Take Judicial Notice of Approval of Hormone Replacement Therapy,” in which she explains Dr. Seleshi's original decision denying her HRT has been overturned and she had been approved for HRT. (“HRT Motion,” ECF No. 36, PageID 283.) Attached to the Motion is the HRT approval decision, which shows that State Psychiatry Director, Dr. Aradhana Gill, made the decision (not Dr. Seleshi). (Id. PageID 286.) Ms.
Millhouse suggests the case should proceed because, among other reasons, “she is standing up for all transgender males and females in relation” to the Policy. (Id. PageID 283.)
As a result of Ms. Millhouse's HRT Motion, the Magistrate Judge issued an order explaining that Ms. Millhouse “appears to have obtained, at least in part, the relief that she seeks in this action to the extent she now has been approved for hormone therapy.” (ECF No. 46, PageID 320.) Her Honor directed the parties to file supplemental briefing addressing whether the case was moot. (Id. PagelD 320-21.)
In her Order and Report and Recommendation, the Magistrate Judge granted Plaintiff's unopposed HRT Motion. (R&R, PageID 360.) Her Honor then recommended the Court dismiss Plaintiff's claims without prejudice for lack of jurisdiction on mootness grounds. (Id.)
The Magistrate Judge reasoned that intervening circumstances, including a defendant's voluntary cessation, can render litigation moot. (Id. PageID 363.) She explained that “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.'” (Id. PageID 363) (citing Thomas v. City of Memphis, 996 F.3d 318, 324 (6th Cir. 2021) (quoting Speech First v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019))).
The Magistrate Judge then “assume[d], without deciding, that Ms. Millhouse's approval for HRT amounted to a voluntary cessation,” and rejected Plaintiff's assertion that absent injunctive relief, Defendants remain free to discontinue her HRT. (Id. PageID 364.) Her Honor reasoned that, under the Policy, there was not a reasonable expectation that denial of HRT based on criminal history would be repeated. (Id.) She explained that Ms. Millhouse's claims were filed prior to her HRT approval and so they challenged § VI.F.1.c. (Id.) Section VI.F.1.c. 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.” (Id.) After Ms. Millhouse's HRT was approved, different Policy provisions apply that do not contemplate the discontinuation of HRT for criminogenic reasons. (Id. PagelD 364-65 (citing ECF No. 1-4; Policy at §§ VI.F.3-G.3)). Because of the Policy language, the Magistrate Judge concluded, there is no reasonable expectation Defendants could withdraw Plaintiff's HRT. (Id. PageID 365.)
The Magistrate Judge also noted that Ms. Millhouse “does not address the specific policy provisions that apply following hormone-therapy approval to explain how, given these aspects of Defendants' policy, her approval is only temporary or that Defendants have any plan to remove her from treatment due to her criminal history or for non-medical reasons.” (Id.) “Moreover, should Defendants discontinue Plaintiff's hormone therapy, she would have the opportunity to raise a challenge at that time.” (Id. PageID 367.)
Ms. Millhouse objects to the R&R and because “ODRC has approved the hormone replacement therapy simply to avoid this litigation and to avoid changing the policy.” (Obj. PageID 373.) Defendants respond that Plaintiff is no longer being injured because she is receiving HRT, and the Court cannot decide cases on speculative and future events such as a potential reversal of the HRT decision in the future. (Resp. PageID 381.) Further, Plaintiff cannot “[stand] up for all the transgender males and females in relation to” the Policy because this is not a class action. (Id.)
If a party objects within the allotted time to a report and recommendation, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b). Upon review, the Court 28 U.S.C. § 636(b)(1).
Article III of the Constitution grants the Judicial Branch authority to adjudicate cases and controversies. Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). The actual-case-and-controversy requirement applies not only at the time a complaint is filed but through all stages of the litigation. Id. at 90-91. A claim becomes moot “when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Id. at 91 (citation omitted).
As the Magistrate Judge explained, one intervening circumstance that can “moot” a case is a defendant's voluntary cessation of the alleged illegal conduct. (R&R, PageID 363) (citing Amalgamated Transit Union v. Chattanooga Area Reg'l Transp. Auth., 431 F.Supp.3d 961, 973 (E.D. Tenn. 2020); Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)). A defendant cannot, however, always moot a case simply by voluntarily ceasing its unlawful conduct after the plaintiff files suit. Nike, Inc., 568 U.S. at 91. “Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Id. “Given this concern,” the Supreme Court has “explained that ‘a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'” Id. (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000)); see also Thomas, 996 F.3d at 324 (citing Laidlaw).
This burden is lower when the government has voluntarily ceased conduct however, “[w]hile all governmental action receives some solicitude, not all action enjoys the same degree of solicitude . . . [the Court] takes into account the totality of the circumstances surrounding the voluntary cessation, including the manner in which the cessation was executed.” Thomas, 996 F.3d at 324 (citing Speech First, 939 F.3d at 767). For example, where the government voluntarily ceases its actions by enacting new legislation or repealing the challenged legislation, the change will “presumptively moot the case unless there are clear contraindications...
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