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Marshall v. Leblanc

United States District Court, E.D. Louisiana

March 6, 2019

RONALD MARSHALL
v.
JAMES LEBLANC, SECRETARY, ET AL.

         SECTION: “H” (1)

          PARTIAL REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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 Correctional Center.

         In 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).

         Under 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.

         Plaintiff 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 plaintiff's case.

         The 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 manner.[1]

         Plaintiff 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, 2018, stating:

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 forthcoming.[2]

         As recently as December 19, 2018, the prison's Assistant Director of Nursing reiterated to plaintiff that ...


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