Dixon v. Vanderbilt , 122 F. App'x 694 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40742
Summary Calendar
ROBERT P. DIXON, JR.,
Plaintiff-Appellant,
versus
DOUGLAS VANDERBILT,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CV-235-DF-CMC
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Robert P. Dixon, Texas state prisoner # 26529-034, appeals
the denial of his motion seeking a restraining order and
preliminary injunctive relief precluding Officer Douglas
Vanderbilt from sexually harassing Dixon and retaliating against
him because Dixon files grievances complaining about the
harassment. Dixon sought to have searches conducted by
Vanderbilt witnessed or for Dixon to be transferred to another
facility.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40742
-2-
This court must examine the basis of its jurisdiction on
its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). Denial of a motion for a temporary restraining
order (TRO) is not appealable. Matter of Lieb, 915 F.2d 180, 183
(5th Cir. 1990). The denial of a preliminary injunction,
however, is immediately appealable, if it is related to the
substantive issues of the litigation. 28 U.S.C. § 1292(a)(1);
Siebert v. Great Northern Development Co., 494 F.2d 510, 511 (5th
Cir. 1974); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.
1991).
Because Dixon sought relief that if granted would exceed the
10-day limit of a TRO, his motion was in effect a motion for
preliminary injunction related to the substantive issues in the
litigation and, thus, the denial of the motion is an appealable
order. See FED. R. CIV. P. 65(b).
The district court erroneously construed Dixon’s complaint
seeking injunctive relief as a 42 U.S.C. § 1983 complaint. Dixon
is a federal prisoner suing a federal officer, and thus, Dixon is
not entitled to seek relief under 42 U.S.C. § 1983. See Manax v.
McNamara, 842 F.2d 808, 812 (5th Cir. 1988). Because he has
alleged a violation of his constitutional rights, Dixon is
entitled to seek injunctive relief to safeguard those rights.
See Bell v. Hood, 327 U.S. 678, 684 (1946).
A movant for a preliminary injunction must demonstrate
each of the following: 1) a substantial likelihood of success
No. 04-40742
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on the merits; 2) a substantial threat that failure to grant the
injunction will result in irreparable injury; 3) the threatened
injury outweighs any damage that the injunction will cause to
the adverse party; and 4) the injunction will not have an adverse
effect on the public interest. Women’s Med. Ctr. of Northwest
Houston v. Bell, 248 F.3d 411, 418-20 (5th Cir. 2001).
“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).
Dixon’s allegations reflect that he was subject to violations of
his constitutional rights and that prison officials refused to
act to end the violations. See Elliott v. Lynn, 38 F.3d 188, 191
(5th Cir. 1994); Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.
2002); Downey v. Denton County, Tex., 119 F.3d 381, 385 n.6 (5th
Cir. 1997).
The magistrate judge’s determination that Dixon’s
allegations were conclusional is not supported by the record as
Dixon’s allegations were numerous and specific in nature. The
magistrate judge should have conducted a hearing on the
preliminary injunction motion and made factual findings on the
disputed issues concerning the reasonableness of the searches and
the alleged retaliatory conduct by Vanderbilt in determining
whether Dixon met the criteria for injunctive relief. Cf. Hay v.
Waldron, 834 F.2d 481, 485 (5th Cir. 1987).
No. 04-40742
-4-
The denial of Dixon’s motions seeking injunctive relief is
VACATED and the case is REMANDED to the district court for
further consideration of the motion for preliminary injunction.
VACATED AND REMANDED.