Opinion
No. 10-11155
09-26-2011
CHRISTOPHER FLORES, Plaintiff - Appellant v. EMILY JACOBS, Unit Classification Chief; KEVIN P. PINNEY, Major of Security; AMANDA MCCREE, Unit Classification Member; DAVID D. LOFTON, Captain of Security; KEVIN M. DEFOOR, Sergeant of Security; BRENDA L. MOORE, Correctional Officer; TAMMY SARHANI, Lieutenant of Security; CHANDA C. CLAY, Correctional Officer; JIMMY S. SMITH, Major of Security; JOHN DOE #1, Classification Committee Member; WAYNE A. HINKLE, Correctional Officer; RICHARD A. AVANTS, Captain of Security; CARY J. COOK, Assistant Warden; ROBERT J. EASON , Senior Warden, Defendants - Appellees
Summary Calendar
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:09-CV-44
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
In this 42 U.S.C. § 1983 action, Christopher Flores, Texas prisoner # 1336588, consented to proceed before a magistrate judge. Proceeding pro se, he challenges the magistrate judge's denial of his motion for a temporary restraining order and preliminary injunction.
Our court lacks jurisdiction over denial of the temporary restraining order; therefore, Flores' appeal of that ruling is dismissed. Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999). Our court does have jurisdiction to review denial of the preliminary injunction. 28 U.S.C. § 1292(a)(1).
The denial of a preliminary injunction is reviewed for abuse of discretion. E.g. Women's Med. Ctr. v. Bell, 248 F.3d 411, 418-19 (5th Cir. 2001). A movant for a preliminary injunction must demonstrate each of the following: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any damage that the injunction will cause to the adverse party; and (4) the injunction will not have an adverse effect on the public interest. Id. at 419 n.15. "The denial of a preliminary injunction will be upheld where the movant has failed sufficiently to establish any one of the four criteria." Black Fire Fighters Ass'n v. City of Dallas, 905 F.2d 63, 65 (5th Cir. 1990) (emphasis in original).
In denying the preliminary injunction, the magistrate judge determined Flores' allegations failed to "demonstrate a likelihood of success on the merits, that the threatened injury outweighed any damage that might be caused to the Defendants, or that the requested relief was not adverse to the public interest". Flores' brief, liberally construed, challenges only the first of the magistrate judge's determinations; he does not address the other two. Because Flores has not shown he meets each of the four prerequisites for a preliminary injunction, he has not shown the magistrate judge abused his discretion.
Flores also asserts the magistrate judge erred by not holding an evidentiary hearing and ordering discovery and briefing on his request for injunctive relief. Our court reviews this matter for abuse of discretion. E.g. Anderson v. Jackson, 556 F.3d 351, 360-61 (5th Cir. 2009). Flores' assertion is without merit. He does not state what additional testimony and evidence would have been adduced at an evidentiary hearing that was not already presented at the Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) hearing, and he does not state how discovery and briefing would have changed the proceedings' outcome. Flores' unsupported allegations are insufficient to establish an abuse of discretion. The denial of the preliminary injunction is affirmed.
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION; AFFIRMED IN PART.