Millhouse, II v. Seleshi

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JUSTIN D. MILLHOUSE, II, aka

ALEXIS MILLHOUSE,

:

Plaintiff,

Case No. 2:21-cv-05210

v. Judge Sarah D. Morrison

Magistrate Judge Elizabeth P.

Deavers

DR. ERMIAS SELESHI, et

:

al.,

Defendants.

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 non-

medical 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.

I. BACKGROUND

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. PageID 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. PageID 320–21.)

II. REPORT AND RECOMMENDATION

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. PageID 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.)

III. OBJECTIONS TO THE REPORT AND RECOMMENDATION

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.)

A. Standard of Review

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 “may

accept, reject, or modify, in whole or in part, the findings or recommendations made

by the magistrate judge. The judge may also receive further evidence or recommit

the matter the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).

B. Analysis

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 that change

is not genuine.” Id. (citing Speech First, 939 F.3d at 767). “If the discretion to effect

the change lies with one agency or individual, or there are no formal processes

required to effect the change, significantly more than the bare solicitude itself is

necessary to show that the voluntary cessation moots the claim.” Id.

Defendants did not meet their burden here because they have failed to

explain why it would be unreasonable to expect that prison administrators would

deny Ms. Millhouse’s HRT in the future. Instead, they simply argue that the Court

“cannot decide cases on speculative and future events” and Ms. Millhouse cannot

continue this action to stand up for other transgender inmates. (ECF No. 48.) Both

statements are legally correct, but Defendants ignore that they previously denied

HRT, there has been no change in the Policy, and they have provided no assurances

that Ms. Millhouse’s HRT will not be discontinued for non-medical reasons in the

future.

An Eighth Circuit case with analogous facts is instructive. Prowse v. Payne,

984 F.3d 700, 703 (8th Cir. 2021). While that case was on appeal, a mental health

services administrator at the Arkansas Department of Correction submitted an

affidavit informing the court that plaintiff prisoner had been approved for hormone

therapy. Id. at 702. The affiant averred that the prisoner “has received hormone

therapy ‘continuously’ since then and ‘will continue to receive hormone therapy so

long as her treating medical professionals determines that hormone therapy is

clinically indicated and recommended.” Id. In that case, the Eighth Circuit found

such assurances sufficient to moot the claims, explaining:

We recognize Prowse’s understandable concern that a ruling that her

claim is moot might result in prison administrators ceasing to provide

her with hormone therapy. But the fact that Prowse is currently

receiving hormone therapy renders moot her claim that ADC has a

blanket policy of denying hormone therapy to inmates diagnosed with

gender dysphoria. And, although it is a closer call, to the extent

Prowse argues prison administrators will deny her hormone therapy

(without reviving the alleged blanket policy of denial), we find

Parker’s uncontested affidavit establishes that it is unreasonable to

expect prison administrators would deny her “clinically indicated”

hormone therapy in the future.

Id. No similar assurances from the Defendants exist in this case.

The Magistrate Judge erred when she found that Ms. Millhouse did not

explain how her HRT is only temporary under the Policy or provide evidence that

Defendants have a plan to remove her from her HRT due to her criminal history or

for other non-medical reasons. (R&R, PageID 365.) The burden rests on the

Defendants, not on Plaintiff, to demonstrate that the alleged wrongful behavior

could not reasonably be expected to recur. See Nike, Inc., 568 U.S. at 91.

The Magistrate Judge also found that the plain language of the Policy

demonstrates there is no reasonable expectation Defendants would discontinue Ms.

Millhouse’s HRT in the future based on her criminal history (R&R PageID 364), but

the Court finds that reading of the Policy too generous. Sections VI.F.3–5 of the

Policy outline the procedure that takes place if the State Psychiatric Director

recommends HRT, and §§ VI.G.1–3 address medical compliance with HRT. (ECF

No. 1-4, PageID 40.) Section VI.G.3, which the Magistrate Judge relies on, provides:

Hormone treatment medication shall NOT be discontinued for

medication non-compliance without a joint Medical and Behavioral

Health treatment team meeting and a face-to-face evaluation by the

prescribing clinician, unless there is a clear clinical need to do so (e.g.

side effects). It is important to consider both possible risk and likely

benefits of hormone treatment prior to any discontinuance of

medication.

(Id.) This Policy provision speaks to ODRC procedures when there is a medical non-

compliance issue. It does not speak to, for example, whether or how a new State

Psychiatry Director or State Medical Director could cease providing an inmate with

HRT for other reasons including but not limited to non-medical ones. Absent

Defendants’ assurances otherwise, it is reasonable to expect this could occur,

particularly where it was not Dr. Seleshi, but rather, Dr. Gill, who approved Ms.

Millhouse’s HRT. If a new State Psychiatry Director could approve HRT after it was

previously denied, why couldn’t a new State Psychiatry Director also take it away?

The Court thus DECLINES TO ACCEPT the portion of the R&R dismissing

Plaintiff’s claims.

IV. PENDING MOTIONS

The Magistrate Judge made the following additional recommendations:

Given the Court’s lack of jurisdiction, it is FURTHER

RECOMMENDED that Plaintiff’s motion for a preliminary

injunction (ECF No. 31) be DENIED. It is ALSO RECOMMENDED

that the Motion to Dismiss (ECF No. 17), Motion to Supplement (ECF

No. 23), Motion to Strike (ECF No. 25) and Motion to take Judicial

Notice (ECF No. 53) be DENIED as moot. Finally, Plaintiff’s request

to take judicial notice, construed as a motion, (ECF No. 36), is

GRANTED.

(R&R, PageID 386–69.) The Court will examine each recommendation, as well as

additional filings Ms. Millhouse has made since the Magistrate Judge issued the

R&R.

In her motion for preliminary injunction (ECF No. 31), which was filed before

she began receiving HRT, Ms. Millhouse asks the Court to grant a preliminary

injunction requiring ODRC to wait until the case is resolved to move her to a female

facility. (Id. PageID 268–69.) She explains a transfer will “hinder her from fully

litigating this case” and she would “suffer emotional and psychological stress as a

result if moved” which would prevent her rehabilitation efforts. (Id.) Ms. Millhouse

did not make any allegations in her complaint about potential facility transfers and

the motion does not have to do with HRT. (See ECF No. 4.) While these factual

allegations may form the basis of another lawsuit, they are not properly before the

Court on a motion. See, e.g., Guiffre v. Loc. Lodge No. 1124, United Steelworkers of

Am., 940 F.2d 660 (Table), 1991 WL 135576, at *5 (6th Cir. 1991) (cannot rely on

“wholly new allegations of wrongdoing” in a brief); World Healthcare Sys., Inc. v.

SSI Surgical Servs., Inc., No. 1:10-CV-00060, 2011 WL 310183, at *3 (E.D. Tenn.

Jan. 28, 2011) (it is a “basic principle” that a complaint may not be amended by

briefs); Shine-Johnson v. DeWine, No. 2:20-CV-5919, 2021 WL 1379133, at *1 (S.D.

Ohio Apr. 12, 2021) (advising a plaintiff of the right to file a separate action to

pursue any claims for deliberate indifference related to denial of medical treatment

that were in a declaration but not the complaint). Ms. Millhouse’s motion for

preliminary injunction is DENIED. (ECF No. 31.)

Ms. Millhouse’s “Motion to Take Judicial Notice” is also DENIED (ECF No.

53) because it similarly raises new allegations not in her original complaint about

having to take Estradiol in a pill line and her desire for a sex reassignment surgery.

In addition, Ms. Millhouse recently filed a “Request for Emergency

Injunction” and “Request to Take Judicial Notice,” which fail for the same reasons.

(ECF Nos. 61, 62.) In the former, she explains she has “regularly experienced being

strip searched by male Correction Officers where there have been no emergency

situations at hand,” and asks that the Court issue a permanent injunction

prohibiting male correctional officers from strip searching her. (ECF No. 61, PageID

385, 389.) In the latter, she explains that ever since being given HRT, she has been

having issues with the medical staff properly adjusting her medication. (ECF No.

62, PageID 395.) These are again new allegations not contained in her original

complaint and therefore both Requests (construed as motions) are DENIED. (ECF

Nos. 61, 62.)

Next, Defendants’ motion to dismiss argues, inter alia, Ms. Millhouse’s

complaint should be dismissed because Ms. Millhouse has failed to state claims

under the Eighth and Fourteenth amendments and Defendants are entitled to

Eleventh Amendment immunity and qualified immunity. (ECF No. 17, PageID

156.) Specifically, they argue that because Ms. Millhouse was receiving mental

health treatment,1 she failed to state an Eighth Amendment deliberate indifference

claim. (Id. PageID 159.) Defendants’ motion to dismiss is DENIED without

prejudice to refiling given that Ms. Millhouse’s receipt of HRT creates an

intervening change in the underlying facts. (ECF No. 17.)

In connection with briefing on Defendants’ motion to dismiss, Ms. Millhouse

filed a motion to supplement her response, in which she discussed the WPATH

Standards. (ECF No. 23.) Defendants moved to strike the motion to supplement,

arguing Ms. Millhouse did not comply with Local Rule 7.2 because she did not seek

leave to file the motion. (ECF No. 25.) Ms. Millhouse’s motion to supplement her

response and Defendants’ motion to strike are DENIED AS MOOT because the

motion to dismiss has been denied without prejudice. Nevertheless, Ms. Millhouse is

ADVISED that even as a pro se litigant, she must comply with the Local Civil

Rules.2 See A Guide For Pro Se Civil Litigants, p.1 (“Litigants must be careful to

fully comply with the Federal Rules of Civil Procedure, the District Court’s Local

Rules, the applicable General Orders, and the pretrial and trial procedures of each

individual Judge.”).

1 At the time Defendants’ motion to dismiss was filed, Ms. Millhouse was

receiving mental health treatment only (not HRT). (See ECF No. 17, PageID 159–

64.)

2 The Local Civil Rules for the Southern District of Ohio are available at:

https://www.ohsd.uscourts.gov/local-rules. The Pro Se Handbook is available at:

https://www.ohsd.uscourts.gov/pro-se-handbook.

Finally, no party objects to the Magistrate Judge’s grant of Plaintiff’s HRT

Motion. The R&R is therefore ACCEPTED IN PART in its grant of Plaintiff’s HRT

Motion. (ECF No. 36.)

V. CONCLUSION

As stated herein, the Court ACCEPTS IN PART and REJECTS IN PART

the Magistrate Judge’s Order and Report and Recommendation. (ECF No. 56.) The

matter is RECOMMITTED to the Magistrate Judge for further proceedings in

accordance with this Opinion and Order.

The following motions filed by Ms. Millhouse are DENIED: motion for

preliminary injunction (ECF No. 31), “Motion to Take Judicial Notice” (ECF No. 53),

“Request for Emergency Injunction” (ECF No. 61), and “Request to Take Judicial

Notice” (ECF No. 62).

Defendants’ motion to dismiss is DENIED without prejudice to refiling.

(ECF No. 17.) Ms. Millhouse’s motion to supplement her response (ECF No. 23) and

Defendants’ motion to strike (ECF No. 25) are DENIED AS MOOT.

Plaintiff’s HRT Motion is GRANTED. (ECF No. 36.)

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE