Stone v. Blevins et al

Filing 117

MEMORANDUM OPINION AND ORDER DENYING 113 Emergency MOTION for Preliminary Injunction filed by Thomas Jeffery Stone. Signed by Magistrate Judge John D. Love on 12/3/2009. (gsg)

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS T Y LE R DIVISION T H O M A S JEFFERY STONE, #671904 VS. D E N N IS K. BLEVINS, ET AL. C IV IL ACTION NO. 6:08cv217 M E M O R A N D U M OPINION AND O R D E R DENYING EMERGENCY INJUNCTION P lain tiff Thomas Jeffery Stone, a Texas prison inmate previously confined at the Powledge U n it, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights law su it pursuant to 42 U.S.C. 1983. The complaint was referred to the undersigned by consent o f the parties pursuant to 28 U.S.C. 636(c). The present Memorandum Opinion concerns the Plaintiff's motion for an emergency in ju n ctio n (docket entry #113). He is once again seeking medical care from an outside independent retin al specialist. It is noted that his medical claim was dismissed on October 22, 2009. He is being permitted to proceed to trial only on his excessive use of force claim against Defendants Danford T aylo r and Alvin Haak. T h e motion is construed as a motion for a temporary restraining order and/or preliminary in ju n c tio n . A temporary restraining order and/or preliminary injunction is typically granted, p en d in g trial on the merits, to prevent irreparable injury that may result before a dispositive trial. Shanks v. City of Dallas, Texas, 752 F.2d 1092, 1096 (5th Cir. 1985). The measures are designed to protect, for example, the status quo of the parties or the evidence the movant will need to use at 1 trial to litigate his claims. To grant or deny a preliminary injunction is within the discretion of the trial court. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984). T h e prerequisites for a preliminary injunction and/or temporary restraining order are: (1) su b stan tial likelihood that the moving party will prevail on the merits of the underlying suit, (2) a su b stan tial threat that the moving party will suffer irreparable injury if the injunction is not granted, (3 ) that the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmovant, and (4) that granting the preliminary injunction and/or temporary restraining o rd er will not disserve the public interest. Libertarian Party of Texas v. Fainter, 741 F.d 2d 728, 7 2 9 (5th Cir. 1984). Since a preliminary injunction and/or temporary restraining order is such an ex trao rd in ary, and perhaps drastic remedy, one is not granted unless the movant clearly carries the o n ero u s burden of persuasion as to all the elements. United States v. Jefferson County, 720 F.2d 1 5 1 1 , 1519 (5th Cir. 1983). In the present case, the Plaintiff has not and cannot satisfy all four elem en ts since his medical claim has been dismissed. It is accordingly . O R D E R E D that the Plaintiff's motion for an emergency injunction (docket entry #113) is D E N IE D . So ORDERED and SIGNED this 3rd day of December, 2009. ___________________________________ JOHN D. LOVE UNITED STATES MAGISTRATE JUDGE 2

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