Johnson v. McCurdy et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARILYN MONAE PORTER, 	)
a/k/a LAMONE M. JOHNSON, 	)
)
Plaintiff, 	)
) 	CIV-22-023-R
v. 	)
)
JOEL MCCURDY, et. al., 	)
)
Defendants. 	)
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings
this action pursuant to 42 U.S.C. § 1983 alleging violations of constitutional
rights. Currently before the Court is Plaintiff’s Motion for Temporary Restraining
Order. Doc. No. 50. The Motion has been referred to the undersigned Magistrate
Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the
reasons set forth below, the undersigned recommends Plaintiff’s Motion be
denied.
I. Background Information
Plaintiff is incarcerated in the Oklahoma State Penitentiary (“OSP”) located
in McAlester, Oklahoma. In her Complaint, Plaintiff asserts claims under the
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Eighth and Fourteenth Amendments. Id. at 4-6.1 As Defendants, she has named
Joel McCurdy, Oklahoma Department of Corrections (“ODOC”) Chief Medical
Officer, and ODOC’s Utilization Review Committee. Id. at 3.
In her Complaint, Plaintiff explains that she suffers from gender dysphoria.
Id. at 4-6. A Qualified Healthcare Professional (“QHCP”), Dr. Payne Wren,
appointed by Defendant McCurdy, diagnosed Plaintiff with this condition. Id. at
5, 6. Pursuant to ODOC policy, the QHCP submitted a request to Defendants for
Plaintiff to receive certain surgical treatments. Id. Defendants denied the request.
Id.
By this action, Plaintiff asserts an Eighth Amendment claim alleging that
in denying the surgical requests, Defendants were deliberately indifferent to her
serious medical needs. Id. at 4-6. Additionally, Plaintiff asserts a claim under the
Fourteenth Amendment’s equal protection clause based on allegations that
Defendants approved similar surgeries for a fellow inmate. Id. 4, 6.
In Plaintiff’s Motion for Temporary Restraining Order (“TRO”) and related
filings, she indicates she has been and will continue to be a victim of assaults and
1 Throughout the pleadings and briefs in this matter, Plaintiff and Defendants refer to
Plaintiff using she/her pronouns. Although the Court is not making a legal determination
as to Plaintiff’s legal gender, for the sake of clarity and consistency, as well as out of
respect for Plaintiff’s status as a transgender individual, the Court will also refer to
Plaintiff using she/her pronouns.
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sexual harassment from other inmates. Doc. Nos. 50-52. Additionally, Plaintiff
asserts that OSP officials are aware of the assaults and harassment and not only
do nothing to stop these incidents, they encourage them. Id. She requests the Court
enter a TRO directing OSP officials to refrain from failing to protect Plaintiff from
inmate assaults, from taking certain actions that make assaults more likely, and
from inciting and encouraging such action from Plaintiff’s fellow inmates. Id.
II. Analysis
Plaintiff’s Motion should be denied for two reasons. First, pursuant to
Federal Rule of Civil Procedure 65(d)(2), an injunction is only binding upon the
parties to the action or those persons in active concert or participation with them.
In her Motion, Plaintiff asserts OSP officials are failing to protect her and/or
encouraging her harm. However, OSP officials are not parties to this lawsuit.
Instead, Defendants are limited to ODOC’s Chief Medical Officer, Joel McCurdy,
and ODOC’s Utilization Review Committee.
Second, even if the Court could bind OSP officials, Plaintiff has asked for
relief that is unrelated to the underlying claims in her Complaint. A TRO grants
intermediate relief of the same character as that which may be finally granted.
DeBeers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). Thus, “the
movant must establish a relationship between the injury claimed in the party’s
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motion and the conduct asserted in the complaint.” Little v. Jones, 607 F.3d 1245,
1251 (10th Cir. 2010) (quotations omitted). If she fails to do so, the court is
powerless to enter a TRO. See, cf., Colum v. Winchester, No. CIV–12–561–HE,
2012 WL 3594804, at *1 (W.D. Okla. June 21, 2012) (“When the movant seeks
intermediate relief beyond the claims in the complaint, the court has no authority
to enter a preliminary injunction.”). See also McMiller v. Corr. Corp. of Am., No.
CIV-14-161-W, 2016 WL 1045567, at *1 (W.D. Okla. Mar. 15, 2016) (denying
motions for preliminary injunction and TRO because “[t]he prison officials[’] . . .
conduct – refusal to provide certain prescribed medication – is not related to the
events giving rise to this lawsuit.”); Hicks v. Jones, 332 F. App’x 505, 508 (10th
Cir. 2009) (affirming district court’s denial of motion for preliminary injunction
or TRO seeking to “prevent [the plaintiff’s] transfer out of the prison’s protective
custody unit . . . [while] his complaint alleged that defendants failed to protect
him from his cellmate”).
For both of these reasons, the Court lacks the authority to enter the
requested relief against OSP officials. Accordingly, Plaintiff’s Motion should be
denied.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff’s Motion for
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Temporary Restraining Order (Doc. No. 50) be DENIED. Plaintiff is advised of
her right to file an objection to this Supplemental Report and Recommendation
with the Clerk of this Court by July 28 th
, 2022, in accordance with 28 U.S.C. §636
and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report
and Recommendation would waive appellate review of the recommended ruling.
Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf.,
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the
first time in objections to the magistrate judge’s recommendation are deemed
waived.”).
This Supplemental Report and Recommendation does not dispose of all
issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 	8 th day of July, 2022.
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