United States District Court, M.D. Louisiana
A. JACKSON, CHIEF JUDGE.
the Court is Plaintiff's Motion for Temporary Restraining
Order and Preliminary Injunction (R. Doc. 4).
se Plaintiff, an inmate confined at the Louisiana State
Penitentiary (“LSP”), Angola, Louisiana, filed
this action pursuant to 42 U.S.C. § 1983 against
Secretary James LeBlanc, Warden Darrel Vannoy, Ass't
Warden Tracy Falgout, Medical Director Dr. Randy Lavespere,
Dr. C. Park, Dr. Toce, Nurse B. Taplin, and unidentified
“John Doe” and “Jane Doe” prison
personnel, alleging that his constitutional rights have been
violated through deliberate indifference to his serious
medical needs. Specifically, Plaintiff complains that prison
officials have discontinued medication that he believes is
necessary to treat his medical conditions, have denied him
appropriate medical attention, have refused to amend his duty
status to restrict his work requirements and allow him to
sleep in a bottom bunk, and have charged him with wrongful
disciplinary violations. Pursuant to an Amended Complaint (R.
Doc. 15), Plaintiff has asserted an additional claim of
deliberate medical indifference against Defendant Hal
instant Motion, Plaintiff asserts that on May 10, 2017, he
was provided with deficient medical care by Defendants Dr.
Toce and Nurse Taplin when he went to the prison infirmary,
notwithstanding that he was exhibiting very high blood
pressure at the time. Plaintiff further complains that,
without justification, his blood pressure medication was
reduced by Dr. Toce on that date and that he has since been
suffering increased headaches, dizziness, spots in his
vision, and chest pain. He prays for an Order compelling
prison officials to provide him with his medication as
“previously prescribed, ” a consultation with a
qualified neurologist and orthopedist, and a permanent
assignment to a bottom bunk “by a fan” to
sufficiently treat plaintiff's “'hypertension,
' ‘neuropathy' and ‘C.O.P.D.
order to obtain injunctive relief, 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.
record before the Court, it does not appear that Plaintiff
has established that he is entitled to the relief requested.
His allegations in the instant Motion are conclusory and
reflect that he is principally complaining therein regarding
medical care that was provided on a single date. Although he
asserts that the reduction in his prescribed medication by
Dr. Toce has resulted in negative symptomatology and has
caused him to fear a potential heart attack or stroke, he
provides no competent medical information to support this
assertion. Nor is it clear that Plaintiff is or has been
unable to request or obtain medical attention since the date
complained of. To the contrary, he merely asserts in the
instant Motion that because of the events of May 10, 2017, he
does not “feel safe enough to request medical treatment
and visit [the] L.S.P. hospital.” Thus, by his own
admission, he appears to concede that he himself has been
unwilling to seek additional medical attention from personnel
at the facility. Further, by reference to subsequent factual
allegations made by Plaintiff, see R. Doc. 15-1 at
p. 22, the Court is able to ascertain that Plaintiff was seen
by a physician at the LSP infirmary in July 2017 and refused
medical care that was offered to him at that time in an
effort to control his elevated blood pressure. Accordingly,
there is nothing in Plaintiff's Motion to support his
entitlement to the relief requested, i.e.,
medication different than that deemed appropriate by a
medical specialist, a consultation with medical specialists,
or an assignment to a bottom bunk, or to show that such
relief is medically necessary or that irreparable injury will
result if the relief is not granted.
order for there to be liability in connection with a claim of
deliberate medical indifference, an inmate plaintiff must be
able to show that appropriate medical care has been denied
and that the denial has constituted “deliberate
indifference to serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Johnson v.
Treen, 759 F.2d 1236, 1237 (5th Cir. 1985). Whether
Plaintiff has received the treatment or accommodation that he
believes he should have is not the issue. Estelle v.
Gamble, supra. Nor do negligence, neglect, medical
malpractice or unsuccessful medical treatment give rise to a
§ 1983 cause of action. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991). Rather, “subjective
recklessness as used in the criminal law” is the
appropriate definition of “deliberate
indifference” under the Eighth Amendment. Farmer v.
Brennan, 511 U.S. 825, 839-30 (1994). As stated in
Farmer, to be liable on a claim of deliberate
indifference, an official “must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.” Id. at 837. The deliberate
indifference standard sets a very high bar: Plaintiff must be
able to establish that Defendants “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.” Domino v. Texas Dept. of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001), quoting
Estelle v. Gamble, supra.
the foregoing principles, it is clear that Plaintiff has
failed to allege facts or produce evidence sufficient to
support entitlement to injunctive relief. Specifically,
Plaintiff has failed to show that there is a substantial
likelihood that he will prevail on the merits of his claim or
that he will suffer irreparable injury if injunctive relief
is not granted. Although Plaintiff complains that he has not
been provided with appropriate treatment for his hypertension
and other medical issues, his conclusory assertions to this
effect fail to show that this is true, particularly in light
of his admission that he has refused to accept additional
medical treatment and attention that have been offered to
him. Finally, the decision to refer an inmate for additional
treatment, tests or evaluation is a matter of professional
medical judgment that the courts will not normally
second-guess in the context of a claim of deliberate medical
indifference. See Cuellar v. Livingston, 321
Fed.Appx. 373, 374 (5th Cir. 2009) (noting that “the
question whether ‘additional diagnostic techniques or
forms of treatment is indicated is a classic example of a
matter for medical judgment, '” quoting Estelle
v. Gamble, supra, 429 U.S. at 107); Burge v.
Stalder, 54 Fed.Appx. 793 (5th Cir. 2002) (upholding the
grant of a motion to dismiss where the inmate complained of a
failure to refer him to a specialist); Green v.
McKaskle, 788 F.2d 1116, 1127 (5th Cir. 1986) (stating
that a “mere claim that [the plaintiff] was not
afforded a doctor who specialized in the treatment of
paraplegia or a trained physical therapist does not, of
itself, state a claim of deliberate indifference”).
See also Corte v. Schaffer, 24 F.3d 237 (5th Cir.
1994) (concluding that, contrary to the plaintiff's
allegation that he had received “no treatment”
and that he needed a referral to a specialist, he had failed
to demonstrate deliberate indifference where he had been seen
and evaluated by prison medical personnel). Although
Plaintiff is apparently dissatisfied with the medical care
that he has received at LSP, such dissatisfaction does not
alone support an entitlement to specific medication or to
testing that he unilaterally believes should be provided.
Therefore, the Court finds that Plaintiff has failed to
adequately establish that he faces irreparable injury or that
he has a substantial likelihood of success on the merits.
Accordingly, the Court finds that Plaintiff has failed to
establish the essential components of a viable claim for
injunctive relief, and the instant Motion should be denied.
IS ORDERED that Plaintiffs Motion for Temporary
Restraining Order and Preliminary ...