     Case: 09-50133     Document: 00511067658          Page: 1    Date Filed: 03/31/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 31, 2010

                                     No. 09-50133                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MICHAEL JOHN GITTINGER,

                                                   Plaintiff–Appellant
v.

SERGEANT RICHARD RAMOS, Bexar County Adult Detention Center;
SHERIFF RALPH LOPEZ, Bexar County Adult Detention Center;
COLONEL EARL GRIFFIN, Bexar County Adult Detention Center; DR
MIGUEL RAMIREZ-COLON; NELSON WOLFF, Bexar County Judge of the
County Commissioners Court,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CV-698


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Michael John Gittinger appeals the district court’s denial of his motion for
a preliminary injunction. Gittinger, a Bexar County Adult Detention Center
(“BCADC”) pre-trial detainee, sued various prison officials after they allegedly



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 09-50133

destroyed his hearing aids, and requested a preliminary injunction mandating
Bexar County to outfit all its courtrooms with accommodations for the hearing
impaired. Because Gittinger has not demonstrated that he will be irreparably
harmed if his requested preliminary injunction does not issue, we affirm the
district court’s denial.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Gittinger was arrested and booked into the BCADC in May 2007. At the
time, Gittinger wore hearing aids. He alleges that a few weeks later, Sergeant
Richard Ramos took his hearings aids and threw them in the trash. Gittinger
filed a series of administrative grievances against Ramos; Colonel Earl Griffin,
whom Gittinger alleged helped Ramos cover up the destruction of his hearing
aids; and Sheriff Ralph Lopez, whom Gittinger alleged failed to maintain proper
oversight of the offending officers.1
       Gittinger then filed suit, pro se and in forma pauperis, against Ramos,
Griffin, and Lopez,2 alleging violations of his constitutional rights and
deprivation of his property without due process of law. Shortly thereafter,
Gittinger retained counsel, who filed a second amended complaint that added
Bexar County, Bexar County Judge Nelson Wolff, and the Bexar County



       1
        Although the record is not clear as to whether Gittinger exhausted his administrative
remedies, the district court held that the defendants were estopped from claiming failure to
exhaust because grievance officials never denied any of the grievances Gittinger filed. Neither
party addresses this finding on appeal.
       2
        Gittinger’s original complaint also named five other defendants: Roger Ramirez, M.D.,
Medical Director, University Hospital Detention Healthcare Services, for trying to cover up
the destruction of his hearing aids and for refusing to replace them; Adon Munoz, Director,
Texas Commission on Jail Standards, for improper oversight of the BCADC; Brad Livingston,
Executive Director, Texas Department of Criminal Justice, for improper oversight of the
BCADC; Bexar County Commissioner’s Court as an entity, for improper oversight of the
BCADC; and Bexar County Judge Nelson Wolff for improper oversight of the BCADC. His
first amended complaint only named Ramos as a defendant, but included the designation “et
al.” Based on this first amended complaint, the district court ordered service on Ramos, Lopez,
and Griffin.

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Commissioner’s Court as parties. Gittinger’s second amended complaint also
sought redress for continuous violations of the Americans’ with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131 et seq., and included a motion for a preliminary
injunction mandating the defendants to “immediately bring all Courtrooms at
the Bexar County Courthouse and Criminal Justice Center into compliance
with” the ADA. Specifically, Gittinger requested an order forcing the defendants
to install sound equipment in all the courtrooms to assist the hearing impaired.
      The district court referred Gittinger’s motion for a preliminary injunction
to a magistrate judge, who issued a report and recommendation opining that the
district court should deny the motion. The magistrate judge did so without
holding an evidentiary hearing, instead accepting Gittinger’s allegations as true.
The district court adopted the magistrate judge’s report and recommendation
denying Gittinger’s motion for a preliminary injunction, and Gittinger timely
appealed the denial.
                                 II. ANALYSIS
      We review the district court’s denial of Gittinger’s motion for a preliminary
injunction for abuse of discretion. Palmer ex rel. Palmer v. Waxahachie Indep.
Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citing Doe v. Duncanville Indep.
Sch. Dist., 994 F.2d 160, 163 (5th Cir. 1993)). “A preliminary injunction is an
extraordinary remedy” that a district court should only issue if the movant
establishes:
      (1) a substantial likelihood of success on the merits, (2) a substantial
      threat of irreparable injury if the injunction is not issued, (3) that
      the threatened injury if the injunction is denied outweighs any
      harm that will result if the injunction is granted, and (4) that the
      grant of an injunction will not disserve the public interest.
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (citing Speaks v. Kruse,
445 F.3d 396, 399–400 (5th Cir. 2006)). We have also held that before ruling on
a motion for a preliminary injunction, “[i]f no factual dispute is involved, . . . no


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oral hearing is required; under such circumstances the parties need only be
given ‘ample opportunity to present their respective views of the legal issues
involved.’” Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (quoting
Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 341 (5th
Cir. 1984)); see also Parker v. Ryan, 959 F.2d 579, 584 (5th Cir. 1992) (affirming
grant of preliminary injunction without evidentiary hearing given “absence of
any issue of disputed fact”).
      The magistrate judge accepted all of Gittinger’s allegations as true, and
concluded that Gittinger had not demonstrated entitlement to the extraordinary
remedy of a preliminary injunction.          The magistrate judge observed that
Gittinger had secured his grandfather’s hearing aids, and had made no attempt
to show why his continued use of them would not suffice to address his hearing
needs in court in lieu of requiring the defendants to install new equipment in
Bexar County’s courtrooms. Thus, the magistrate judge opined that Gittinger
had not demonstrated the requisite irreparable injury necessary to secure a
preliminary injunction. The magistrate judge also stated that Gittinger’s “bare
bones” factual averments had not demonstrated a likelihood of success on the
merits, that the public interest is not well served when federal courts issue
injunctions requiring implementation of preliminary class-based relief, and that
her acceptance of Gittinger’s factual allegations as true negated any utility of an
evidentiary hearing.
      Gittinger argues that the magistrate judge abused her discretion by
refusing to grant an evidentiary hearing to develop evidence in support of his
request. He argues that there exists no dispute that Bexar County is violating
federal law, and that the magistrate judge erred to the extent that she relied on
the lack of information that Gittinger provided in denying his motion without a
hearing. He describes the magistrate judge’s conclusions as “circular logic,” and
insists that a reversal is warranted.

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       The district court did not abuse its discretion when it adopted the
magistrate judge’s report and recommendation denying Gittinger’s request for
an evidentiary hearing. Where, as here, there exists no factual dispute, the
district court—or in this case the magistrate judge—may rule on a motion for a
preliminary injunction without an evidentiary hearing. See Parker, 959 F.2d at
584.   The magistrate judge’s acceptance of Gittinger’s version of the facts
defeated the need to hold an evidentiary hearing.
       Additionally, the district court did not abuse its discretion when it adopted
the magistrate judge’s recommendation that it deny Gittinger’s request for a
preliminary injunction. On appeal, Gittinger argues that he—as well as the
general public—suffers harm with each appearance in a Bexar County
courtroom that is not equipped with sound enhancement, closed captioning, or
real-time transcription. He laments what he describes as the magistrate judge’s
“speculation” as to “how impaired . . . you have to be before you are harmed,” but
does not address the magistrate judge’s conclusion that once he secured
additional hearing aids, he made no attempt to demonstrate how Bexar County’s
failure to install hearing accommodations in every courtroom would lead to his
irreparable injury. He likewise makes no attempt to demonstrate his likelihood
of success on the merits or that the public interest would not be disserved by the
district court’s grant of preliminary relief. He therefore has not demonstrated
entitlement to a preliminary injunction.
                               III. CONCLUSION
       The district court did not abuse its discretion when it adopted the
magistrate judge’s report and recommendation, which elected not to hold an
evidentiary hearing. Likewise, the district court did not abuse its discretion
when it denied Gittinger’s motion. We therefore affirm the district court’s
denial.
       AFFIRMED.

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