USCA4 Appeal: 24-6200 Doc: 48 Filed: 10/16/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6200

SOFIA CANO,

Plaintiff - Appellee,

v.

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; BRYAN P. STIRLING; DR. CHRIS KUNKLE; ESTHER LABRADOR; DR. ANDREW HEDGEPATH; DR. JOHN TAYLOR; WILLIAM LANGDON; MCKENDLEY NEWTON; TERRIE WALLACE; SALLEY ELLIOTT; KENNETH L. JAMES; NETRA ADAMS; PAMELA DERRICK; DR. ROBERT ELLIS; DR. JENNIFER BLOCK; TIMOTHY GREEN; CHELSEA JOHNSON; YVONNE WILKINS- SMITH; SHAWANDA WASHINGTON,

Defendants - Appellants,

------------------------------

GOVERNOR MCMASTER,

Amicus Supporting Appellants.

Appeal from the United States District Court for the District of South Carolina, at Beaufort. Donald C. Coggins, Jr. (9:22-cv-04247-JDA-MHC)

Submitted: September 6, 2024 Decided: October 16, 2024

Before THACKER, HARRIS, and QUATTLEBAUM, Circuit Judges.

Dismissed by unpublished per curiam opinion. USCA4 Appeal: 24-6200 Doc: 48 Filed: 10/16/2024 Pg: 2 of 5

ON BRIEF: Daniel C. Plyler, Austin T. Reed, Frederick N. Hanna, Jr., SMITH ROBINSON, LLC, for Appellants. Meredith McPhail, ACLU OF SOUTH CAROLINA, Columbia, South Carolina; Scott Novak, BAKER BOTTS, L.L.P., Washington, D.C., for Appellee. Thomas A. Limehouse, Jr., Chief Legal Counsel, Wm. Grayson Lambert, Senior Litigation Counsel, Erica W. Shedd, Deputy Legal Counsel, OFFICE OF THE GOVERNOR, Columbia, South Carolina, for Amicus Curiae.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

The South Carolina Department of Corrections and several individually named

South Carolina Department of Corrections officials (collectively “SCDC”) noticed an

appeal challenging a finding in the district court’s order granting in part and denying in

part plaintiff Sofia Cano’s motion for preliminary injunction. The preliminary injunction

order, issued in accordance with the Prison Litigation Reform Act (“PLRA”),

(a)(2), directed SCDC to “provide Plaintiff with medically necessary gender-

affirming care for her gender dysphoria” and to “have Plaintiff evaluated by SCDC medical

professionals within 30 days of [the order’s] date to determine whether hormone therapy

is medically necessary to treat Plaintiff’s gender dysphoria.” J.A. 310–11. In response,

SCDC filed a notice indicating it had complied with the court’s order to evaluate Cano.

On appeal, SCDC challenges what it calls a narrow ruling in the preliminary

injunction order. Specifically, it challenges the court’s finding that a South Carolina budget

proviso “does not prohibit the use of state funds to begin hormone therapy for Plaintiff.”

J.A. 301. 1 SCDC asserts that we have jurisdiction to hear its appeal of the interlocutory

order based on

.

On August 6, 2024, Cano filed a “Notice that Appealable Order Has Expired” in

this Court indicating that under the PLRA, the January 30, 2024 preliminary injunction

1 The actual proviso is South Carolina Budget Proviso 65.28. The district court also addressed it in denying SCDC’s motion to dismiss, explaining that “the Budget Proviso does not necessarily prohibit the use of state funds to provide hormone therapy to Plaintiff.” J.A. 294–95. That order was not appealed.

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order has expired. In the Notice, Cano reported that SCDC maintains the order’s expiration

did not affect the appeal. Cano took no position. On August 1, 2024, Cano also moved in

the district court to renew and reenter the general terms of the preliminary injunction. That

motion remains pending.

The PLRA, which governs civil lawsuits concerning prison conditions, permits

preliminary injunctive relief if narrowly drawn in the “least intrusive means necessary to

correct [the] harm.”

(a)(2). Generally, “[p]reliminary injunctive relief

shall automatically expire on the date that is 90 days after its entry.”

However, “if a

judge enters a preliminary injunction in a suit covered by [§ 3626(a)(2)], that injunction

will terminate on its 90th day unless the court has rendered it permanent and made specific

findings” concerning its necessity and narrowness. Banks v. Booth,

(D.C.

Cir. 2021).

There is no dispute that § 3626(a) of the PLRA applies to this case. And neither

party contends the district court made the requisite findings or made the preliminary

injunction order permanent before the expiration of the 90-day period. Nor does it appear

the parties asked the court to do so.

SCDC claims that that expiration of the preliminary injunction order does not affect

our jurisdiction over the appeal. That’s because, according to SCDC, the district court’s

finding on the budget proviso is now the law of the case that is binding at future stages of

the litigation. Without deciding whether the district court’s decision on the budget proviso

is now the law of the case, we have jurisdiction only over final orders,

,

and certain interlocutory and collateral orders,

. At this point, due to the

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expiration of the preliminary injunction order, there is no appealable order to establish our

jurisdiction to address the district court’s budget proviso finding. And without an

appealable order, we lack the authority to address the merits. See Int’l Bhd. of Teamsters,

Loc. Union No. 639 v. Airgas, Inc.,

, 233–36 (4th Cir. 2018); Smith v.

Edwards,

, 1124–26 (5th Cir. 2023) (finding expired § 3626 preliminary

injunction rendered appeal moot, leaving nothing for review); see also United States v.

Sec’y, Fla. Dep’t of Corr.,

, 1228–1230 (11th Cir. 2015) (same).

Here, the preliminary injunction expired 90 days after it was issued, leaving no

appealable order. As a result, we dismiss this appeal for lack of jurisdiction. We dispense

with oral argument because the facts and legal contentions are adequately presented in the

materials before us and argument would not aid the decisional process. 2

DISMISSED

Our dismissal should not be construed to express any opinion about the merits of 2

SCDC’s challenge to the district court’s finding about the budget proviso.

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