     Case: 17-10302       Document: 00514326656          Page: 1     Date Filed: 01/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 17-10302
                                   Summary Calendar
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                            January 29, 2018
CARL DAVID JONES,
                                                                             Lyle W. Cayce
                                                                                  Clerk
                                                   Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON,
EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
BRIAN COLLIER, Deputy Executive Director, Texas Department of Criminal
Justice; ROBERT JAY EASON, Deputy Executive Director, Correctional
Institution Division; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; ET AL,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:
       Carl David Jones, Texas prisoner # 1517939, appeals the magistrate
judge’s denial of his motion for a preliminary injunction. 1 In July 2016, Jones
filed a pro se complaint under 42 U.S.C. § 1983, asserting that prison officials
exhibited deliberate indifference to his serious medical needs in violation of the


       1In his notice of appeal, Jones also appeared to challenge the magistrate judge’s denial
of a temporary restraining order. However, we lack jurisdiction to review the denial of a
temporary restraining order. Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999).
    Case: 17-10302     Document: 00514326656     Page: 2   Date Filed: 01/29/2018


                                  No. 17-10302

Eighth Amendment. Among other things, Jones alleged that he was prescribed
a special diet due to his diabetes and that he suffered a stroke on April 3, 2016.
Jones further alleged that his prison was placed on a routine lockdown from
April 3, 2016, to April 22, 2016, and that, during the lockdown, the food service
manager at his prison, Captain Greg Cruise, discontinued his prescribed diet
and replaced it with a “sugar based diet.”         Jones claimed that he sent
“numerous written complaints” to Cruise and other personnel, to no avail. He
alleged that, after his “blood sugar levels registered above 500,” he attempted
to file an official grievance with prison authorities, but his form was returned
to him after it was deemed “redundant,” and he was told that if he attempted
to file it again, “he would not get it back.” According to Jones, on April 20,
2016, he suffered a heart attack.
      Pertinent to the instant appeal, on August 2, 2016, Jones also filed a
motion for a preliminary injunction. In his motion, Jones provided additional
allegations. He stated that on July 15, 2016, his prison was again placed on
lockdown following the assault of a corrections officer and that the facility
remained on lockdown at the time he filed his motion. Jones further alleged
that prison officials again cancelled his prescribed diet, forcing him to consume
high-sugar meals up to four times a day, contrary to the orders of Dr. Robert
Martin, his unit physician.     He specifically alleged that the prison staff’s
interference with his prescribed dietary regimen “results in higher blood sugar
levels” and “exposes [him] to another stroke or heart attack, or other diabetic
complications and consequences that are life threatening.” Jones additionally
averred that the deprivation of his prescribed diet forced him to inject more
insulin to lower his blood-sugar level, thus exposing him to a risk of serious
physical injuries in the event his blood-sugar level drops too rapidly.




                                        2
     Case: 17-10302        Document: 00514326656      Page: 3    Date Filed: 01/29/2018


                                      No. 17-10302

       A magistrate judge denied Jones’s motion for a preliminary injunction,
without holding an evidentiary hearing or requesting a response from the
defendants. 2 Jones filed a timely notice of appeal. In his brief on appeal, Jones
added that, on March 13, 2017, prison officials again placed his unit on a
routine lockdown and “resumed the administrative practice that resulted in
the improper cancellation of [his] medical treatment plan.”
       We review the denial of a preliminary injunction for an abuse of
discretion. Moore v. Brown, 868 F.3d 398, 402 (5th Cir. 2017).                “Factual
findings are reviewed for clear error, while legal conclusions are reviewed de
novo.” Id. To obtain a preliminary injunction, a movant must establish:
       (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) (quoting Speaks v. Kruse,
445 F.3d 396, 399–400 (5th Cir. 2006)).
       The magistrate judge, taking Jones’s allegations as true, found that he
had failed to set forth facts sufficient to establish a likelihood of success on the
merits. The magistrate judge concluded that, at most, the allegations might
establish negligence on the part of prison officials but that they cannot
establish deliberate indifference. The magistrate judge further found that
Jones had failed to allege harm that amounts to irreparable injury requiring
immediate injunctive relief and that it was “improbable that Jones could
establish that the grant of an injunction would not disserve the public
interest.”


       2    Jones consented to proceed before the magistrate judge pursuant to 28 U.S.C.
§ 636(c).


                                             3
    Case: 17-10302     Document: 00514326656     Page: 4   Date Filed: 01/29/2018


                                  No. 17-10302

      “We construe pro se pleadings liberally.” Brunson v. Nichols, 875 F.3d
275, 277 (5th Cir. 2017) (cleaned up). In order to establish a likelihood of
success on the merits of his Eighth Amendment claims, Jones must show a
likelihood that substituting high-sugar meals for his prescribed diet amounted
to deliberate indifference to his serious medical needs. See Estelle v. Gamble,
429 U.S. 97, 104 (1976). A prison official acts with deliberate indifference “only
if he knows that inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”         Farmer v.
Brennan, 511 U.S. 825, 847 (1994). A plaintiff must show that officials “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. Tex. Dep’t of Criminal Justice, 239
F.3d 752, 755 (5th Cir. 2001).
      Construed liberally, Jones’s pleadings allege a pattern of knowing
interferences with prescribed medical care for his diabetes, despite his multiple
complaints and his official grievance, which were all essentially ignored.
Contrary to the magistrate judge’s conclusion, such conduct cannot be
characterized as mere negligence. Rather, these allegations are sufficient to
state a claim for deliberate indifference to serious medical needs. See id; see
also Zidell v. Kanan, 428 F. App’x 426, 427 (5th Cir. 2011) (intentionally
ignoring “repeated requests for medical care” or ignoring a “medical order to
be in a wheelchair room,” caused the prisoner to fracture his foot, constitutes
deliberate indifference to serious medical needs). Thus, taking the allegations
as true, Jones has shown a sufficient likelihood of success on the merits.
      We also cannot accept the magistrate judge’s conclusion that Jones had
failed to allege a substantial threat of irreparable injury. Jones alleges that
prison officials continually deprive him of necessary medical care for diabetes.



                                        4
    Case: 17-10302     Document: 00514326656     Page: 5   Date Filed: 01/29/2018


                                  No. 17-10302

Liberally construing his pleadings, he alleges that he has already suffered a
stroke and a heart attack as a result of his medical condition. He further
asserts that the substitution of his prescribed diet with sugary meals causes
him to have dangerously high blood-sugar levels and requires him to inject
more insulin, thereby also exposing him to the risk that his blood-sugar level
drop too rapidly. He therefore asserts that if the deprivations of his prescribed
diet continue, he is liable to suffer additional strokes, heart attacks, and other
life-threatening diabetic complications. Jones’s account of the risks he faces is
currently undisputed, as the defendants have not been asked to respond to his
allegations. These allegation establish a sufficient risk of irreparable harm in
the absence of injunctive relief. See Scinto v. Stansberry, 841 F.3d 219, 228–
29 (4th Cir. 2016), cert. denied sub nom. Phillip v. Scinto, No. 16-1545, 2017
WL 2734638 (U.S. Nov. 13, 2017) (increase in blood sugar presents a
substantial risk of serious injury).
      Finally, the magistrate judge’s conclusion that it is “improbable that
Jones could establish that the grant of an injunction would not disserve the
public interest” is without basis in the record.      Absent a response by the
defendants attesting to any substantial difficulty that would ensue from
ensuring that Jones continues to receive his prescribed diet, the courts cannot
simply assume that providing necessary medical care to a prisoner would be
too much of an inconvenience to prison authorities.
      Accordingly, we VACATE the magistrate judge’s denial of a preliminary
injunction and REMAND for further proceedings consistent with this opinion.




                                        5
