United States District Court, E.D. Louisiana
PARTIAL REPORT AND RECOMMENDATION
VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
Ronald Marshall, a state prisoner, filed this pro se civil
action pursuant to 42 U.S.C. § 1983. He named as
defendants James LeBlanc, Robert Tanner, Beverly Kelly, and
Dr. Robert Cleveland. In the complaint, plaintiff claims that
he has been denied medical care for Hepatitis B and Hepatitis
C while incarcerated at the B.B. “Sixty” Rayburn
connection with his complaint, plaintiff has filed motions
for a temporary restraining order and preliminary injunction.
Rec. Docs. 10 and 13. Despite his request for a temporary
restraining order, his motions must be construed solely as
ones for a preliminary injunction because the relief he seeks
would extend beyond the ten-day limit of a temporary
restraining order. Neal v. Federal Bureau of
Prisons, 76 Fed.Appx. 543, 545 (5th Cir. 2003).
the law of this Circuit, a plaintiff must make a clear
showing that his case satisfies the following four criteria
before he can receive a preliminary injunction: (1) a
substantial likelihood exists that he will succeed on the
merits of his claim; (2) a substantial threat of irreparable
harm exists if the injunction is not granted; (3) the
threatened injury outweighs any harm to the defendants if the
injunction is granted; and (4) the injunction will not
undermine the public interest. See Valley v. Rapides
Parish School Board, 118 F.3d 1047, 1051 (5th Cir.
1997); see also Ingebresten v. Jackson Public School
District, 88 F.3d 274, 278 (5th Cir. 1996); Doe v.
Duncanville Independent School District, 994 F.2d 160,
163 (5th Cir. 1993); Holland American Insurance Co. v.
Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). A
preliminary injunction is therefore an “extraordinary
remedy” which should be granted only if the movant has
clearly carried the burden of persuasion on all four of the
above prerequisites. Mississippi Power & Light v.
United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.
1985). As a result, “[t]he decision to grant a
preliminary injunction is to be treated as the exception
rather than the rule.” Id.
has not established that the extraordinary remedy is
warranted in this case. In his motion, he alleges that he
suffers from Hepatitis B and Hepatitis C, and he requests
that the Court order that he “receive immediate
treatment with direct-acting antiviral medications.”
Prison officials have refused to provide such treatments,
stating that they are unnecessary under the facts of
grievance records plaintiff attached to his complaint put
this dispute in context. When plaintiff complained to prison
officials about the lack of antiviral treatment, Warden
Robert Tanner denied relief on November 27, 2017, stating:
Your complaint has been reviewed and investigated. A review
of your medical record was also conducted.
Review of your record reveals you developed antibodies for
Hepatitis C (HCV) in 2006. Repeat testing through the years,
including the most recent test, reflects that HCV is not
detected, which indicates no need for treatment. The fact
that you have antibodies to HCV is indicative of past
exposure/infection. The quantitative tests with HCV not
detected indicates no current infection. The 2006 positive
test for Hepatitis A antibody has been confirmed negative in
subsequent testing through the years. The Hepatitis B surface
antibody positive in 2006 was consistent with immunity to
Hepatitis B, meaning you had exposure but your body defense
mechanisms were able to overcome your exposure. Subsequent
testing confirmed your immunity. Treatment is not indicated
in the absence of the disease.
Dr. Robert Cleveland is the authority in the delivery of
health care at this facility and he decides what is or is not
medically necessary. Your medical needs have and will
continue to be met in a timely and appropriate
then appealed the denial of his grievance to the Secretary of
the Louisiana Department of Public Safety and Corrections.
Department staff then likewise denied relief on February 20,
Your request for an Administrative Review of ARP#
RCC-2017-776 has been received. A qualified member of the
Headquarters staff has reviewed your request in order to
render a fair and impartial response.
It has been determined that your complaint is without merit.
The medical staff has addressed your concerns in an
appropriate manner and in accordance with DOC Health Care
Policy. It is to be noted that per your medical records, Dr.
Cleveland reviewed all of your lab results and is fully aware
of any medical condition you may or may not have. Medical
opinion is controlling. The care you have received as well as
the care you will continue to receive from the Medical staff
is determined adequate for your health care concerns. As
such, this office has accepted staff's position in this
matter and concurs with the response provided at the First
Level. Therefore, administrative intervention is not
recently as December 19, 2018, the prison's Assistant
Director of Nursing reiterated to plaintiff that ...