UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JEANNE MARIE DRULEY, 

 Plaintiff - Appellant, 

v. 

ROBERT PATTON; DON 

SUTTMILLER; MICHAEL ADDISON; 

BUDDY HONAKER; JAMES 

KEITHLEY; JOEL B. MCCURDY, in 

their individual and official capacities, 

 Defendants - Appellees. 

No. 14-6114 

(D.C. No. 5:13-CV-01191-D) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges. 

 

 Jeanne Marie Druley, an Oklahoma state prisoner, filed a 42 U.S.C. § 1983 

complaint against employees of the Oklahoma Department of Corrections (ODOC) 

asserting they had violated her constitutional rights in connection with her care as a 

transgendered individual. She filed a motion for a temporary restraining order (TRO) 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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and preliminary injunction at the same time she filed her complaint. The district 

court denied injunctive relief, and Ms. Druley, proceeding pro se, appeals. We lack 

jurisdiction to review the denial of her TRO motion. We affirm the denial of her 

motion for a preliminary injunction. 

BACKGROUND

Prior to her incarceration in 1986, Ms. Druley was diagnosed with gender 

identity disorder (GID) and had two of three gender reassignment surgeries needed to 

change the gender of her body from male to female. Her name and birth certificate 

were changed to identify her as a female. In her § 1983 complaint, Ms. Druley 

alleges that the ODOC defendants violated the Eighth Amendment’s prohibition on 

cruel and unusual punishment by stopping and starting her prescribed hormone 

medications and giving her inadequately low dosages of her hormone medication. 

She also alleges the ODOC defendants violated the Equal Protection Clause by 

housing her in an all-male facility. 

Ms. Druley filed her TRO and preliminary injunction motion the same day as 

her complaint, seeking a court order directing the ODOC defendants to raise her 

hormone medication to the levels recommended by the Standards of Care established 

by the World Professional Association for Transgender Health (WPATH), allow her 

to wear ladies’ undergarments, and move her to a non-air-conditioned building to 

alleviate asthma symptoms. The matter was referred to a magistrate judge under 

28 U.S.C. § 636(b)(1)(B), who issued a Report and Recommendation (R&R) to deny 

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injunctive relief. After considering Ms. Druley’s objections, the district court 

adopted the R&R and denied injunctive relief. 

As to the TRO, the district court ruled Ms. Druley failed to give notice of her 

TRO request to ODOC defendants as required by Fed. R. Civ. P. 65, or to show cause 

in accordance with Fed. R. Civ. P. 65(b) why this notice requirement should be 

excused. As to the preliminary injunction, the district court ruled Ms. Druley had not 

shown a substantial likelihood of success of the merits of her § 1983 complaint or 

that she would be irreparably harmed without her requested hormone treatment. 

Ms. Druley filed this interlocutory appeal of that order. 

JURISDICTION

We must first address our appellate jurisdiction. “Ordinarily, denial of a 

temporary restraining order is not appealable.” Populist Party v. Herschler, 746 F.2d 

656, 661 n.2 (10th Cir. 1984); 16 C. Wright, A. Miller & E. Cooper, Federal Practice 

and Procedure, § 3922.1 (3d ed. 2014) (“The general rule is that orders granting, 

refusing, modifying, or dissolving temporary restraining orders are not appealable 

under [28 U.S.C.] § 1292(a)(1) as orders respecting injunctions.”). There are two 

exceptions: “when the order is appealable as a final order under 28 U.S.C. § 1291,” 

and when the order has the practical effect of denying a preliminary injunction. 

Populist Party, 746 F.2d at 661 n.2. Neither exception is applicable here: the district 

court’s denial of the TRO is not a final appealable order under 28 U.S.C. § 1291, and 

the denial did not have the “practical effect of denying an injunction,” the 

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consequences of the denial are not irreparable, and immediate review is not the only 

effective means of challenging the order. United States v. Colorado, 937 F.2d 505, 

507-08 (10th Cir. 1991). We therefore dismiss the appeal of the denial of the TRO. 

Orders granting or denying preliminary injunctions, however, are among the 

types of interlocutory orders that are immediately appealable under 

28 U.S.C. § 1292(a)(1). We thus have jurisdiction to review the district court’s 

denial of Ms. Druley’s request for a preliminary injunction. 

DISCUSSION

We construe Ms. Druley’s pro se brief liberally. See Garza v. Davis, 596 F.3d 

1198, 1201 n.2 (10th Cir. 2010). A party seeking a preliminary injunction must 

establish: (1) a likelihood of success on the merits; (2) a likelihood that the party 

will suffer irreparable harm in the absence of a preliminary injunction; (3) that the 

balance of equities tips in the party’s favor; and (4) that the injunction serves the 

public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). A preliminary 

injunction requiring the nonmoving party to take affirmative action, as Ms. Druley 

seeks, is an extraordinary remedy that is generally disfavored. Id. We review a 

district court’s denial of a motion for a preliminary injunction for abuse of discretion. 

Id. at 1250. 

Ms. Druley’s injunctive-relief motion requests an order directing ODOC 

medical staff to raise her hormone level in accordance with levels recommended by 

the WPATH Standards of Care. Her complaint alleges that prison officials have 

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started and stopped her hormone treatment numerous times over the last 27 years and 

currently prescribe a hormone dosage for her that is below the normal lowest dosage 

recommended by WPATH. Her injunctive-relief motion asserts generally that ODOC 

medical staff does not understand the importance of the WPATH Standards of Care, 

but other than stating her current hormone treatment level, neither her complaint nor 

her injunctive-relief motion presented any medical evidence specific to her care. 

Thus, she presented no evidence indicating which WPATH recommended-hormone 

levels are medically appropriate for her. 

The district court concluded Ms. Druley failed to show a likelihood of success 

on the merits in light of a decision from this court, Supre v. Ricketts, 792 F.2d 958, 

963 (10th Cir. 1986), in which we declined to recognize a constitutional right under 

the Eighth Amendment to estrogen hormone therapy for inmates with GID. In Supre, 

we held that prison officials must provide treatment to address the medical needs of 

transsexual prisoners, but we noted the record indicated the provision of estrogen 

hormone medication was medically controversial, and the evidence did not 

demonstrate “that failing to treat plaintiff with estrogen would constitute deliberate 

indifference to a serious medical need,” because the prison officials “made an 

informed judgment as to the appropriate form of treatment and did not deliberately 

ignore plaintiff’s medical needs.” Id. The district court also ruled that Ms. Druley 

had not shown she would be irreparably harmed without the requested hormone 

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treatment, noting that Ms. Druley conceded she had not received any hormone 

treatments from 1988 to 2011. 

On appeal, Ms. Druley makes the conclusory assertion that she demonstrated 

her constitutional rights would be violated if she did not receive the hormone levels 

suggested by WPATH, from which she argues she has satisfied the irreparable harm, 

balance-of-equities, and public-interest requirements. To establish an Eighth 

Amendment claim, Ms. Druley must show deliberate indifference to a substantial risk 

of serious harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994). She must show that 

the deprivation is objectively sufficiently serious and, subjectively, that the ODOC 

defendants were aware of a substantial risk of serious harm. Id. at 837. 

The WPATH “Standards of Care ‘are intended to provide flexible directions

for the treatment’ of GID,” and state that ‘individual professionals and organized 

programs may modify’ the Standards’ requirements in response to ‘a patient’s unique 

situation’ or ‘an experienced professional’s evolving treatment methodology.’” 

Kosilek v. Spencer, __ F.3d __, No. 12-2194, 2014 WL 7139560, at *2, n.3, *20 

(1st Cir. Dec. 16, 2014), id. at *2 n.3 (brackets and ellipsis omitted) (quoting World 

Professional Association for Transgender Health, Standards of Care for the Health of 

Transsexual, Transgender, and Gender-Nonconforming People, Version 7 (2011), 

at 1-2) (emphasis added). Ms. Druley presented no evidence that the ODOC 

defendants failed to consider the WPATH’s flexible guidelines, failed to make an 

informed judgment as to the hormone treatment level appropriate for her, or 

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otherwise deliberately ignored her serious medical needs. Thus, Ms. Druley failed to 

demonstrate a substantial likelihood of success on the merits. See Supre, 792 F.2d 

at 963. Further, in the absence of any medical evidence, Ms. Druley also failed to 

make any showing that she would be irreparably harmed if she did not receive the 

levels of hormone treatment she requested. 

Ms. Druley also argues ODOC violated the Equal Protection Clause by 

denying her request to wear feminine undergarments and her request to be moved to a 

different building. Unequal treatment that does not involve a fundamental right or 

suspect classification is justified if it bears a rational relation to legitimate penal 

interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439-40 

(1985). To date, this court has not held that a transsexual plaintiff is a member of a 

protected suspect class for purposes of Equal Protection claims. See Etsitty v. 

Utah Transit Auth., 502 F.3d 1215, 1227-28 (10th Cir. 2007) (denying 

suspect-classification equal-protection employment rights for transgendered 

employees); Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (affirming the 

dismissal of an equal protection claim alleging the denial of estrogen treatment to a 

transsexual prisoner). Ms. Druley did not allege any facts suggesting the ODOC 

defendants’ decisions concerning her clothing or housing do not bear a rational 

relation to a legitimate state purpose. Thus, she has not demonstrated a likelihood of 

success on her Equal Protection claims. 

 

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The appeal of the district court’s denial of a TRO is dismissed for lack of 

jurisdiction. The district court’s denial of her motion for preliminary injunction is 

affirmed. The motion for in forma pauperis is GRANTED. 

 Entered for the Court 

 Jerome A. Holmes 

 Circuit Judge 

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