United States District Court, N.D. Texas, Lubbock Division
FIDEL SALAZAR, Institutional ID No.01506617, SID No. 03924280, Plaintiff,
U.T.M.B. CORRECTIONAL MANAGED CARE, et al, Defendants.
FINDINGS, CONCLUSIONS. AND RECOMMENDATION
GORDON BRYANT JUDGE.
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
Statement of the Case
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.
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
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).
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).
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.
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.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. ...