Marsalis v. Lavespere et al

Filing 23

RULING and ORDER denying 17 Order to Show Cause for an (sic) PreliminaryInjunction and a Temporary Restraining Order. Signed by Judge John W. deGravelles on 10/23/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FREDDIE MARSALIS #451967
CIVIL ACTION
v.
NO. 15-271-JWD-SCR
DR. RANDY LAVESPERE, ET AL.
RULING AND ORDER
This matter comes before the court on the Order to Show Cause for an (sic) Preliminary
Injunction and a Temporary Restraining Order (R. Doc. 17) (“Motion”) filed by Plaintiff,
Freddie Marsalis. Defendants Dr. Randy Lavespere, Dr. Hal MacMurdo, Dr. Paul Toce, Dr.
Dwayne Helms, and Samuel Gaspard oppose the Motion. (R. Doc. 22).
The pro se plaintiff, an inmate incarcerated at Louisiana State Penitentiary (“LSP”),
Angola, Louisiana, filed this show cause order asking for a temporary restraining order and
preliminary injunction against the above Defendants, along with “Jane/John Doe’s badge
Numbers #19, #543, #93, #552, Head Warden N. Burl Cain, Assistant Warden/HealthCare –
Stephanie Lamartinere and EMT Combe #551” (collectively, the “Unnamed Defendants”),
complaining that his Eighth Amendment rights were violated by the Defendants’ “delaying
and/or denying medical attention.” Plaintiff claims to have a number of ailments and complains
of many problems with the manner in which LSP provided him care. He wants the court to order
surgery for his hemorrhoid, an examination by a gastrologist/pathologist specialist, and
advancement and upgrade of the medical standards and conditions at LSP. He further seeks an
order restraining all of the above defendants from delaying medical treatment for extended
periods of time; delaying evaluation; delaying and/or denying access to specialty care; delaying

and/or denying surgery, medication, and physical therapy as well as an order to improve follow
up care.
In order to obtain injunctive relief, the plaintiff must demonstrate “(1) a substantial
likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable
harm if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to
the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve
the public interest.” Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192, 196 (5th
Cir. 2003). “[A] preliminary injunction is an extraordinary remedy which should not be granted
unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four
requirements.” Id. at 196.
On the record before the Court, it does not appear that the Plaintiff is entitled to the relief
requested. The Plaintiff has not demonstrated a substantial likelihood that he will prevail on the
merits (i.e., deliberate indifference to a substantial risk of serious harm). This is particularly
given his refusal to seek medical treatment on prior occasions. Further, Defendant has pointed to
evidence that the clinician in ILH Eye Clinic – LSU found that the requested surgery could not
be authorized.
Accordingly,
IT IS ORDERED that the plaintiff’s Order to Show Cause for an (sic) Preliminary
Injunction and a Temporary Restraining Order (R. Doc. 17) be and it is hereby DENIED.
Signed in Baton Rouge, Louisiana, on October 23, 2015.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA