United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for review of the Report and
Recommendation [Doc. No. 33] issued by United States
Magistrate Judge Shon T. Erwin on June 10, 2019, pursuant to
28 U.S.C. § 636(b)(1)(B) and (C). Judge Erwin recommends
the denial of Plaintiff's Motion [Doc. No. 26] seeking a
preliminary injunction or temporary restraining order (TRO).
who appears pro se, has filed a timely Objection
[Doc. No. 41] and a Declaration [Doc. No. 42] that is
apparently intended to provide evidentiary support for her
Motion and to overcome Judge Erwin's finding that
Plaintiff “has failed to make a ‘strong'
showing that she would likely succeed on the merits of her
Eighth Amendment claim” regarding denial of medical
treatment for gender dysphoria. See R&R at 3
(using standard for disfavored injunctions, see Free the
Nipple v. City of Fort Collins, 916 F.3d 792, 797 (10th
Cir. 2019)). The Court must make a de novo
determination of portions of the Report to which a specific
objection is made, and may accept, modify, or reject the
recommended decision, in whole or in part. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). However, the
Court ordinarily does not consider new matter presented for
the first time in objection to a magistrate's report.
See Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996); see also ClearOne Commc'ns, Inc. v. Biamp
Sys., 653 F.3d 1163, 1185 (10th Cir. 2011);
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th
de novo consideration of the issue of whether
Plaintiff is entitled to injunctive relief, the Court first
finds that the specific TRO or injunction sought by the
Motion is unclear from Plaintiff's pro se
filing. The Motion consists of a collection of papers
(see Doc. No. 26 and attachments 1 through 5), and
the Motion itself states only that “Plaintiff seeks a
[TRO] and a Preliminary Injunction to ensure that she
receives proper Medical Care.” See Mot. [Doc.
No. 26] at 1. In her Objection, Plaintiff disagrees with
Judge Erwin's statement of the requested relief; she
relies on language in a proposed “Order to Show
Cause” [Doc. No. 26-4] to argue that she seeks an order
directing Defendants “to have Plaintiff be evaluated by
an outside Transgender Specialist who is qualified in the
field of Transsexualism, and diagnosis of Gender Dysphoria
(GD), to be properly diagnosed, and then to provide Plaintiff
with the Hormone Replacement Therapy (HRT) to treat
Plaintiff's Gender Dysphoria.” See Obj. at
1 (quoting Order to Show Cause). The Court accepts
Plaintiff's clarification of the proposed relief.
Court next finds that Plaintiff seems to agree with Judge
Erwin's finding that her Motion should be treated as one
for a TRO without notice to Defendants pursuant to
Fed.R.Civ.P. 65(b)(1)(A). See R&R at 1; Obj. at
1-2. At the time of the Motion, and when Judge Erwin issued
his Report, Defendants had not been served with process. In
any event, the procedural label is largely immaterial because
the same general standard of decision governs either a TRO or
a preliminary injunction. See Duvall v. Keating, 162
F.3d 1058, 1062 (10th Cir. 1998); see also Tooele Cty. v.
United States, 820 F.3d 1183, 1187 (10th Cir. 2016)
(TRO's “and preliminary injunctions differ in how
long they can last”). The more important procedural
fact is the nature of the requested relief, that is, whether
it would merely preserve the status quo or whether it would
alter the status quo or mandate action by the adverse party.
There is no question that Plaintiff seeks the latter type of
disfavored injunction, which requires a heightened showing of
a strong likelihood of success on the merits and a strong
balance of harms in her favor. See Free the Nipple,
916 F.3d at 797; O Centro Espirita Beneficente Uniao Do
Vegtal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir.
2004) (en banc), aff'd sub nom., 546 U.S. 418
to this issue, the Court finds that Plaintiff has failed to
make the requisite showing. Plaintiff's verified Amended
Complaint [Doc. No. 20] and her Declarations [Doc. Nos. 26-5
and 42] tend to show she has GD, it is a serious medical
condition, and Defendants have denied her medical treatment
for it. Specifically, Plaintiff contends several prison
doctors have diagnosed her with GD but Defendants have caused
her prison medical records to be altered to remove the
diagnosis and have prevented her from receiving any
treatment. These allegations, even accepted as true,
do not provide a strong showing that Plaintiff is entitled to
the TRO she seeks - that is, “that the balance of
equities tips in [her] favor.” See Att'y Gen.
v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)
(internal quotation omitted). Plaintiff's requested
relief does not fit the harm allegedly caused by
Defendants' conduct in violation of § 1983.
Plaintiff proves her allegations, appropriate injunctive
relief might include an order to correct her medical records
and allow a doctor to treat her condition. In contrast,
Plaintiff seeks an order requiring Defendants to arrange an
outside, independent medical examination by a transgender
specialist and to provide a specific medical treatment. Even
proving her § 1983 claim will not necessarily result in
such relief. See Druley v. Patton, 601 Fed.Appx.
632, 635 (10th Cir. 2015) (unpublished) (transgender inmate
did not show likelihood of success on § 1983 claim by
showing she was not receiving hormone therapy for GD
recommended by published standards of care); see also
Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir.
2008) (inmate's claim “that he was denied treatment
by a specialist is insufficient to establish a constitutional
violation”) (internal quotation omitted). Therefore,
the Court finds that Plaintiff's Motion for a TRO should
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 33] is ADOPTED in its entirety. Plaintiffs Motion for
Preliminary Injunction and Temporary Restraining Order [Doc.
No. 26] is DENIED.
 Plaintiff alleges that other inmates
diagnosed with GD are receiving the treatment she desires
(hormone therapy) at the same facility where she is
 Unpublished opinions are cited in this
Order pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R.
 In addition to the requirements of
Rule 65, the Court is mindful of additional limitations on
injunctions affecting prisons. In relevant part, 18 U.S.C.
§ 3626(a)(2) provides: “In any civil action with
respect to prison conditions, ” any
“[p]reliminary injunctive relief must be narrowly
drawn, extend no further than necessary to correct the harm
the court finds requires preliminary relief, and be the least
intrusive means necessary to correct that harm.”
See Stephens v. Jones, 494 Fed.Appx. 906, 911-12
(10th Cir. 2012) (unpublished) (district court properly found