United States District Court, E.D. Texas, Tyler Division
Clark, United States District Judge.
Dustin Lee Keddy, a prisoner currently confined at the East
Texas Treatment Facility (“ETTF”), proceeding
pro se, filed the above-styled and numbered civil
lawsuit. The complaint was referred to United States
Magistrate Judge John D. Love, who issued a Report and
Recommendation concluding that Mr. Keddy's motion for a
preliminary injunction (Dkt. #4) should be denied. (Dkt.
#11). Mr. Keddy has filed objections. (Dkt. #18).
Keddy's motion is governed by Rule 65 of the Federal
Rules of Civil Procedure. A temporary restraining order
and/or preliminary injunction is typically granted, pending
trial on the merits, to prevent irreparable injury that may
result before a dispositive trial. Shanks v. City of
Dallas, Texas, 752 F.2d 1092, 1096 (5th Cir. 1985). The
measures are designed to protect, for example, the status
quo of the parties or the evidence the movant will need
to use at trial to litigate his claims. To grant or deny a
preliminary injunction is within the discretion of the trial
court. Apple Barrel Productions, Inc. v. Beard, 730
F.2d 384, 386 (5th Cir. 1984).
prerequisites for a preliminary injunction and/or temporary
restraining order are: (1) substantial likelihood that the
moving party will prevail on the merits of the underlying
suit, (2) a substantial threat that the moving party will
suffer irreparable injury if the injunction is not granted,
(3) that the threatened injury to the movant outweighs the
threatened harm the injunction may do to the nonmovant, and
(4) that granting the preliminary injunction and/or temporary
restraining order will not disserve the public interest.
Libertarian Party of Texas v. Fainter, 741 F.2d 728,
729 (5th Cir. 1984). Since a preliminary injunction and/or
temporary restraining order is such an extraordinary, and
perhaps drastic remedy, one is not granted unless the movant
clearly carries the onerous burden of persuasion as to all
the elements. United States v. Jefferson County, 720
F.2d 1511, 1519 (5th Cir. 1983). Given the nature of the
public interest at stake, the balance of equities favors the
exercise of restraint in granting requests for injunctive
relief requiring judicial intervention in matters of prison
administration. See Godinez v. Lane, 735 F.2d 1250,
1261-62 (7th Cir. 1984).
objections, Mr. Keddy contends that he will prevail on the
merits of his claims. Mr. Keddy asserts that because a
free-world medical specialist directed him to have injections
of testosterone cypionate every two weeks that demonstrates
that he has a serious medical need. He states that the
Defendants substituted his bi-weekly injections with a pill.
Mr. Keddy contends that the substitution of the pill for the
injections is medical malpractice. Although a medical
specialist may have directed Mr. Keddy to receive injections
for his hypogonadism, this fact alone is not sufficient to
demonstrate that the Defendants were deliberately indifferent
to a serious medical need.
indifference is an extremely high standard to meet.
Domino v. Texas Dep't of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001). In the medical care context,
“[u]nsuccessful medical treatment, acts of negligence,
or medical malpractice do not constitute deliberate
indifference, nor does a prisoner's disagreement with his
medical treatment, absent exceptional circumstances.”
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir.
2006). It is indisputable that an incorrect diagnosis by
medical personnel does not suffice to state a claim for
deliberate indifference. Johnson v. Treen, 759 F.2d
1236, 1238 (5th Cir. 1985). Mr. Keddy's disagreement with
the ETTF medical providers' treatment of his condition
with a pill rather than an injection does not give rise to a
claim for deliberate indifference. Rather, the plaintiff must
show that the officials “refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.”
Id. Based on the current jurisprudence, Mr. Keddy
fails to clearly demonstrate that he will prevail on the
merits of his claims.
he did not clearly demonstrate that there is a substantial
threat that he will suffer an irreparable injury if the
injunction is not granted. Mr. Keddy asserts for the first
time that without the testosterone cypionate injections that
he will suffer a disorder, recognized by the American
Psychiatric Association, “referred to as
“Transsexualism, ” but with only clinically
significant distress or impairment of functioning.”
Issues raised for the first time in objections to the Report
of the Magistrate Judge are not properly before the District
Court. United States v. Armstrong, 951 F.2d 626, 630
(5th Cir. 1992); Cupit v. Whitely, 28 F.3d 532, 535
n.5 (5th Cir. 1994).
third and fourth elements of a preliminary injunction require
Mr. Keddy to clearly show that the threatened injury
outweighs the harm of an injunction to the nonmovant and that
granting the preliminary injunction will not disserve the
public interest. This requires a balancing of harms to the
parties, which involves: (1) an evaluation of the severity of
the impact on the defendant should the temporary injunction
be granted and (2) the hardship that would occur to the
plaintiff if the injunction should be denied. In addition,
the Court must consider whether an injunction would injure
the public interest. Unless a plaintiff can show some
likelihood of ultimate success, there is no need to weigh
relative hardships, which a preliminary injunction or the
lack of one might cause the parties. Texas v. Seatrain
Int'l, S.A., 518 F.2d 175, 180 (5th Cir. 1975). Mr.
Keddy fails to clearly carry the burden of persuasion as to
likelihood of ultimate success at this juncture; thus, this
Court is not required to weigh the relative hardships.
Report of the Magistrate Judge, which contains proposed
findings of fact and recommendations for the disposition of
such action, has been presented for consideration, and having
made a de novo review of the objections raised by
Mr. Keddy, the Court finds that the findings and conclusions
of the Magistrate Judge are correct and that Mr. Keddy's
objections are without merit. Therefore, the Court hereby
adopts the findings and conclusions of the Magistrate Judge
as the findings and conclusions of the Court. It is
that the Report and Recommendation (Dkt. #11) is
ADOPTED. It is further
that the Plaintiff's motion for preliminary ...