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Salazar v. U.T.M.B. Correctional Managed Care

United States District Court, N.D. Texas, Lubbock Division

January 5, 2018

FIDEL SALAZAR, Institutional ID No.01506617, SID No. 03924280, Plaintiff,
v.
U.T.M.B. CORRECTIONAL MANAGED CARE, et al, Defendants.

          FINDINGS, CONCLUSIONS. AND RECOMMENDATION

          D. GORDON BRYANT JUDGE.

         Pursuant to Special Order No. 3-251, this case has been automatically referred to the undersigned United States Magistrate Judge for pretrial management. Before the court is Plaintiffs "Order to Show Cause for An Preliminary Injunction." ECF No. 4. Based on the relevant filings and applicable law, the motion should be DENIED.

         I. Statement of the Case

         On December 29, 2017, pro se Plaintiff Fidel Salazar, an inmate currently incarcerated at the Formby Unit of the Texas Department of Criminal Justice (TDCJ), filed this action under 42 U.S.C. § 1983. Complaint (ECF No. 1). In his Complaint, Salazar alleges Defendants have refused to adequately treat his Hepatitis C infection by "[r]efusing to provide me with Hep C treatment-cure." Id. at 4. Salazar filed the instant "Order to Show Cause for An Preliminary Injunction" seeking an injunction that would require Defendants to treat his "active Hep. C infection with direct acting antiviral drugs." ECF No. 4. The court liberally construes Salazar's motion as one seeking issuance of a preliminary injunction under Federal Rule of Civil Procedure 65.

         II. Discussion

         "An injunction is an extraordinary remedy and should not issue except upon a clear showing of possible irreparable harm." Lewis v. S.S. Baune, 534 F.2d 1115, 1121 (5th Cir. 1976). The party seeking injunctive relief bears the burden of showing that he is entitled to such an extraordinary remedy. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). To secure an injunction or temporary restraining order, a movant must demonstrate:

1. a substantial likelihood of success on the merits;
2. a substantial threat of irreparable injury if the injunction is not granted;
3. the threatened injury to the movant outweighs any damage the injunction will cause the non-movant; and
4. the injunction will not have an adverse effect on the public interest.

Women's Med. Ctr. v. Bell, 248 F.3d 411, 418-20 (5th Cir. 2001); Hay v. Waldron, 834 F.2d 481, 484 (5th Cir. 1987). If the movant fails to meet his "heavy burden" on any of the four prerequisites, a preliminary injunction cannot issue. See Enter. Int'l Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985).

         Salazar has not carried his burden with respect to any of the foregoing elements. To establish a likelihood of success on the merits, Salazar must allege and prove that the prison authorities were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04 (1978). Disagreement with a course of treatment, however, does not constitute deliberate indifference to medical needs under the Eighth Amendment. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Similarly, neither negligence nor medical malpractice gives rise to a viable constitutional claim. See Daniels v. Williams, 41A U.S. 327, 329-336 (1986); Estelle, 429 U.S. at 106; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

         Based on the limited information supplied thus far by Salazar, his claims, at best, challenge decisions made by TDCJ medical staff to currently forego prescribing a certain type of treatment for his Hepatitis C. According to exhibits attached to Salazar's Complaint, TDCJ medical staff have examined and tested Salazar, reviewed his medical history, and determined that, based upon measurable criteria specific to Salazar, he is not a candidate for the Hepatitis C treatment he seeks. See Complaint, at 8. Specifically, the medical staff found that Salazar's test results failed to meet guidelines issued by the Centers for Disease Control for treating Hepatitis C with the "new medications" sought by Salazar. Id.

         As such, Salazar is attempting to challenge the medical judgment exercised by prison medical staff in determining the appropriate course of treatment-such claims do not rise to the level of a constitutional violation.[1]See Gobert v. Caldwell,463 F.3d 339, 346 (5th Cir. 2006) (holding that "decision whether to provide additional treatment 'is a classic example of a matter for medical judgment, '" and does not constitute deliberate indifference); Green v. McKaskle,788 F.2d 1116, 1127 (5th Cir. 1986) (finding "mere claim" by inmate that prison failed to provide a trained physical therapist or a doctor who specialized in treating paraplegia "does not, of itself, state a claim of deliberate indifference"); Kingv. Tex. Dep't Criminal Justice, No: 3:15-CV-1365-N-BH, 2016 WL 8671926, at *2 (N.D. Tex. Jan. 8, 2016) (denying plaintiffs request for preliminary injunction requiring officials to provide certain medications, where plaintiffs mere disagreement with treatment provided by TDCJ officials failed to show substantial likelihood of prevailing on the merits). Because Salazar has not met his burden of demonstrating a substantial likelihood of success on the merits or a substantial threat of irreparable injury if an injunction does not issue, the court should deny his request for injunctive relief. See Mikkelson v. Adams, Civ. A. No. H-06-2509, 2006 WL 3499530, at *l-3 (S.D. ...


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