Keddy v. UTMB et al

Filing 31

ORDER adopting 24 Report and Recommendation. Ordered that the Plaintiff's 21 motion for protective order, construed as a motion for preliminary injunction, is denied. Signed by District Judge Ron Clark on 12/19/2017. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

DUSTIN LEE KEDDY, #2131479

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VS.

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UTMB, ET AL.

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CIVIL ACTION NO. 6:17cv502

ORDER
Plaintiff Dustin Lee Keddy, a prisoner currently confined at the East Texas Treatment
Facility (“ETTF”), proceeding pro se, filed the above-styled and numbered civil lawsuit. The
complaint was referred to United States Magistrate Judge John D. Love, who issued a Report and
Recommendation concluding that Mr. Keddy’s motion for a protective order (Dkt. #21), construed
as a preliminary injunction, should be denied. (Dkt. #24). Mr. Keddy has filed objections. (Dkt.
#28).
Mr. Keddy states he is seeking a protective order to prevent Warden Elisabeth Tyson and
Warden J. Rupert from retaliating and from making any and all disciplinary decisions during the
next five months without Warden G. Shirly present. Mr. Keddy’s motion is governed by Rule 65
of the Federal Rules of Civil Procedure. A temporary restraining order and/or preliminary
injunction is typically granted, pending 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 trial to litigate his claims. To grant or deny a preliminary

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injunction is within the discretion of the trial court.

Apple Barrel Productions, Inc. v. Beard, 730

F.2d 384, 386 (5th Cir. 1984).
The prerequisites for a preliminary injunction and/or temporary restraining order are: (1)
substantial likelihood that the moving party will prevail on the merits of the underlying suit, (2) a
substantial 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
order will not disserve the public interest. Libertarian Party of Texas v. Fainter, 741 F.2d 728, 729
(5th Cir. 1984). Since a preliminary injunction and/or temporary restraining order is such an
extraordinary, and perhaps drastic remedy, one is not granted unless the movant clearly carries the
onerous burden of persuasion as to all the elements. United States v. Jefferson County, 720 F.2d
1511, 1519 (5th Cir. 1983). Given the nature of the public interest at stake, the balance of equities
favors the exercise of restraint in granting requests for injunctive relief requiring judicial
intervention in matters of prison administration. See Godinez v. Lane, 735 F.2d 1250, 1261-62 (7th
Cir. 1984).
In his objections, Mr. Keddy contends that he will prevail on the merits of his claims. Mr.
Keddy asserts that he has been diagnosed with hypogonadism by four Texas Department of
Criminal Justice doctors and Endocrinology at John Sealy Hospital. He states that he has been
suffering without treatment since April 16, 2016. Although a medical specialist may have directed
Mr. Keddy to receive injections for his hypogonadism, this fact alone is not sufficient to
demonstrate that the Defendants were deliberately indifferent to a serious medical need.
Deliberate indifference is an extremely high standard to meet. Domino v. Texas Dep’t of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). In the medical care context, “[u]nsuccessful
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medical treatment, acts of negligence, or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with his medical treatment, absent exceptional
circumstances.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). It is indisputable that an
incorrect diagnosis by medical personnel does not suffice to state a claim for deliberate
indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Plaintiff must show that the
officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for any serious
medical needs.” Id.
In his amended complaint, Mr. Keddy also asserts that Warden Elisabeth Tyson had him
removed from the program and locked in segregation because he was filing complaints, filing
grievances, and filed a lawsuit. These allegations are not sufficient to state a claim for retaliation.
A cognizable retaliation claim requires the violation of a constitutional right coupled with
retaliatory animus. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 516 U.S.
1084 (1996). “To state a valid claim for retaliation under § 1983, a prisoner must allege (1) a
specific constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or
her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones v. Greninger, 188
F.3d 322, 324-25 (5th Cir. 1999). “Mere conclusionary allegations of retaliation will not be enough
to withstand a proper motion for dismissal of the claim.” Id. (citing Woods v. Smith, 60 F.3d at
1166). While direct evidence of motivation is preferable, a prisoner can also “allege a chronology
of events from which retaliation may plausibly be inferred.” Id. (quoting Cain v. Lane, 857 F.2d
1139, 1143 n.6 (7th Cir. 1988)).
“The relevant showing in such cases must be more than the prisoner’s ‘personal belief that
he is the victim of retaliation.’” Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (quoting
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Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995)). Moreover, the simple fact that the retaliatory
action occurred in close temporal proximity to the constitutionally protected action will not
establish the “but for” retaliatory animus element. Reeves v. Wood, 206 F. App’x 368, 369 (5th
Cir. 2006) (not selected for publication) (citing Smith, 60 F.3d at 1166). To state a claim of
retaliation, an inmate must be prepared to establish a retaliatory motive and causation. Hart v.
Hairston, 343 F.3d 762, 765 (5th Cir. 2003).
Based on the current jurisprudence, Mr. Keddy fails to clearly demonstrate that he will
prevail on the merits of his claims.
Secondly, he did not clearly demonstrate that there is a substantial threat that he will suffer
an irreparable injury if the injunction is not granted. In his motion for protective order, Mr. Keddy
failed to set out the substantial threat that he will suffer an irreparable injury if his requested
injunction is not granted. In his objections, Mr. Keddy asserts for the first time that if he is removed
from the program by Defendants Tyson and Rupert, he will be returned to prison and locked up in
segregation. Issues raised for the first time in objections to the Report of the Magistrate Judge are
not properly before the District Court. United States v. Armstrong, 951 F.2d 626, 630 (5th Cir.
1992); Cupit v. Whitely, 28 F.3d 532, 535 n.5 (5th Cir. 1994).
The third and fourth elements of a preliminary injunction require Mr. Keddy to clearly
show that the threatened injury outweighs the harm of an injunction to the nonmovant and that
granting the preliminary injunction will not disserve the public interest. This requires a balancing
of harms to the parties, which involves: (1) an evaluation of the severity of the impact on the
defendant should the temporary injunction be granted and (2) the hardship that would occur to the
plaintiff if the injunction should be denied. In addition, the Court must consider whether an
injunction would injure the public interest. Unless a plaintiff can show some likelihood of ultimate
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success, there is no need to weigh relative hardships, which a preliminary injunction or the lack of
one might cause the parties. Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975). Mr.
Keddy fails to clearly carry the burden of persuasion as to likelihood of ultimate success at this
juncture; thus, this Court is not required to weigh the relative hardships.
The Report of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. Keddy, the Court finds that the
findings and conclusions of the Magistrate Judge are correct and that Mr. Keddy’s objections are
without merit. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate
Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the Report and Recommendation (Dkt. #24) is ADOPTED. It is further
ORDERED that the Plaintiff’s motion for protective order (Dkt. #21), construed as a
motion for preliminary injunction, is DENIED.

So Ordered and Signed
Dec 19, 2017

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