Neal v. Federal Bureau of Prisons , 76 F. App'x 543 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 12, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk
No. 03-30419
SUMMARY CALENDAR
_________________________
DENARD DARNELL NEAL
Plaintiff - Appellant
v.
FEDERAL BUREAU OF PRISONS; KATHLEEN HAWK-SAWYER; RONALD G
THOMPSON; CARL CASTERLINE; JANE HASCHEMEYER; WHITE, Mr., Mailroom
Supervisor; ERICKSON, Mr., Assistant Mailroom Supervisor; HALTIWANGER, Mr.;
CASTILLO, Ms.; PHELPS, Mr.; SMITH, Mr.; HARRELL WATTS; SHERREL BOZEMAN;
LESTER PHILLIPS, In His Individual and Official Capacity; TRANSOU, Lieutenant, In His
Individual and Official Capacity; BOBBY TYLER
Defendants - Appellees
DENARD DARNELL NEAL
Plaintiff - Appellant
v.
KATHLEEN HAWK SAWYER; CARL CASTERLINE; SHERRELL BOZEMAN; RONALD G
THOMPSON; HARRELL WATTS; WHITE, Mr.; ERICKSON, Mr.; PHELIPS, Mr.;
HALTIWANGER, Mr.; SMITH, Mr.; CASTILLO, Ms.; JANE HASCHEMEYER
Defendants - Appellees
______________________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(02-CV-1908)
(02-CV-1942)
______________________________________________________________________________
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Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal we review the district court's decision to deny Plaintiff-Appellant, Denard
Darnell Neal’s (hereinafter “Neal”), motion for a temporary restraining order or preliminary
injunction in his civil rights action filed pursuant to 42 U.S.C. § 1983. For the following reasons,
we affirm the district court’s decision.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Neal has filed several civil actions seeking monetary damages and injunctive relief against
the Federal Bureau of Prisons (hereinafter “BOP”) and employees of both the BOP and the
United States Penitentiary at Pollock, Louisiana. Neal alleges numerous violations of his
constitutional rights by prison officials, including 1) forcible interviews; 2) charging inmates for
typewriter ribbons and underwear; 3) tampering with legal mail; and 4) a corrupt administrative
remedy system. Neal’s initial request was for a preliminary injunction ordering Defendants to
transfer him to another prison.
Neal also filed a motion for a temporary restraining order against eight Defendants. This
request resulted from an alleged attack on Neal by prison officials when Neal refused to allow
officers to put another inmate in Neal’s cell. In his motion for a temporary restraining order, Neal
claimed 1) violations of the Eight Amendment right to be free of cruel and unusual punishment; 2)
violation of the Torture Victim Protection Act of 1991; 3) an equal protection violation; 4)
1
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.
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deliberate indifference to medical needs; 5) retaliation; and 6) denial of access to the
administrative remedy process.
Neal seeks a court order 1) directing Defendants to cease assaulting Neal; 2) restricting
Defendants from having contact with Neal pending an investigation; 3) directing Defendants to
identify all prison staff involved in the alleged assault; 4) placing Neal in protective custody; 5)
ordering Defendants to preserve the videotape of the alleged assault; and 6) providing Neal access
to administrative remedies.
The district court denied Neal’s motion for a temporary restraining order and preliminary
injunction. The court ruled that Neal had not alleged any specific facts showing a substantial
threat of irreparable injury if his requested injunction was not granted. The district court also
ruled that Neal had failed to prove a substantial likelihood that his cause would succeed on the
merits.
II.
APPELLATE JURISDICTION
Due to the way in which Neal framed his motion for a temporary restraining order, this
court must examine the basis of its jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.
1987) (the court must examine its jurisdiction on its own motion if necessary). Denial of a motion
for a temporary restraining order is not appealable. In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990).
However, denial of a preliminary injunction is immediately appealable, if the injunction 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). Neal designated his motion as a motion for a temporary restraining order, but the
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relief he requests is only available by a preliminary injunction because the relief sought would
extend beyond the ten-day limit of a temporary restraining order. Because the injunctive relief
requested by Neal is related to the substantive issues of the litigation, liberally construed, Neal’s
request constitutes a motion for preliminary injunction. Thus, this court has jurisdiction to hear
the appeal.
III.
STANDARD OF REVIEW
We review the district court’s decision denying Neal’s motion for preliminary injunction
for abuse of discretion. White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). The decision to
deny a preliminary injunction will be reversed by this court “only under extraordinary
circumstances.” Id.
IV.
PRELIMINARY INJUNCTION
To receive a preliminary injunction, Neal must prove 1) a substantial likelihood of success
on the merits of his case; 2) a substantial threat that failure to grant the order will result in
irreparable injury; 3) the threatened injury outweighs any damage that the injunction will cause
Defendants; and 4) the injunction will not have an adverse affect on the public interest. Women’s
Med. Ctr. v. Bell, 248 F.3d 411, 418-420 (5th Cir. 2001); Lakedreams, 932 F.2d at 1107. Neal
must prove all four elements and failure to prove any one of them will result in denial of the
motion. Enterprise Intern, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464,
472 (5th Cir. 1985).
Neal has not shown that the district court abused its discretion in denying his motion for a
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preliminary injunction because Neal has not established a substantial threat of irreparable injury.
Neal alleges no facts beyond the conclusory allegations of a conspiracy against him that suggest
the prison staff will assault him in the future. Howard v. King, 707 F.2d 215, 219-220 (5th Cir.
1983). In regards to the surveillance tape which Neal purports is evidence of the alleged assault,
Neal can seek its production through the regular discovery process. U.S. v. Pretel, 939 F.2d 233,
239-240 (5th Cir. 1991) (defendant could have sought preservation of audiotapes by discovery
process). Any preliminary injunction issued by the court would merely be an order for Defendants
to do their duty.
V.
CONCLUSION
For the foregoing reasons the judgment of the district court is affirmed.
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