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

                                                 FILED
                                                                        September 25, 2009

                                     No. 08-10901                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MICHAEL PATRICK KENNEDY

                                                   Plaintiff-Appellant
v.

DR DAVID POTTER; EDDIE C WILLIAMS; JOHN WILSON

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 7:07-CV-0022-0


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Michael Kennedy (“Kennedy”), a pro se inmate
proceeding in forma pauperis, appeals the district court’s denial of a motion for
a temporary restraining order and a preliminary injunction. Kennedy sustained
injuries from seven bullet wounds when he was arrested. After complaining
about a bullet that he claimed was lodged in his spine and pressed on his nerve
roots, Dr. David Potter (“Potter”), a prison doctor with experience treating


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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gunshot wounds, treated Kennedy. Potter examined and x-rayed Kennedy and,
after finding the bullet in a pelvic muscle that did not press on nerve roots,
recommended pain management treatment rather than surgery.                   Potter
determined that the gunshot injury would not worsen and that the risks of
surgery outweighed the benefits of removing the bullet fragments. Kennedy
sued Defendants-Appellees Dr. David Potter, physician’s assistant John Wilson,
and warden Eddie Williams for deliberate indifference to serious medical needs
under the Eighth Amendment.
      Kennedy then moved for a temporary restraining order and preliminary
injunction, seeking to be transferred to the Texas Tech University Health
Science Center for treatment by a neurosurgeon and orthopedic surgeon. He
also seeks removal from work assignments that, he claims, have aggravated his
injury. The magistrate judge recommended that the district court deny the
motion for a temporary restraining order and preliminary injunction, which the
district court adopted.    Specifically, the district court held a hearing on
Kennedy’s request for a temporary restraining order and denied as moot his
motion for a hearing on his request for a preliminary injunction, motion to
compel a ruling on the motion for a temporary restraining order, and petition for
a writ of mandamus. Kennedy then filed this interlocutory appeal of the court’s
denial of his motion for a temporary restraining order and preliminary
injunction.
      This court’s jurisdiction is limited to appeals of final decisions of district
courts and certain interlocutory orders. 28 U.S.C. §§ 1291, 1292; F ED. R. C IV.
P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949).
Federal appellate jurisdiction is typically dependent upon a final decision that
“ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). The
district court’s ruling on the temporary restraining order is not a final order and

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does not fall into the class of special interlocutory appeals. Faulder v. Johnson,
178 F.3d 741, 742 (5th Cir. 1999); In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990).
      We next consider whether this appeal meets each of the three
requirements for the collateral order exception to the final judgment rule. A
preliminary or interim order is appealable as a collateral order when it:
(1) “conclusively determine[s] the disputed question,” (2) “resolve[s] an important
issue completely separate from the merits,” and (3) is “unreviewable on appeal
from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
      The district court’s dismissal of Kennedy’s motion for a temporary
restraining order or preliminary injunction to alter his current job assignment
and a transfer to another facility to be seen by another doctor does not
“conclusively determine the disputed question”—whether or not Kennedy
suffered from deliberate indifference to his serious medical needs. Id. The
district court’s order thus fails to satisfy even the first prong of the test because
Kennedy may still proceed with his lawsuit.         The appeal of the temporary
restraining order does not fit into the collateral order exception and, accordingly,
we do not need to address prongs two or three. Therefore, we dismiss this appeal
in part for want of jurisdiction under § 1291. In re Lieb, 915 F.2d at 183.
      In contrast, the order denying a motion for preliminary injunction
requiring access to medical treatment is immediately appealable under
§ 1292(a)(1). This court reviews a district court’s order denying a motion for
preliminary injunction for abuse of discretion. Miss. Power & Light Co. v.
United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). We review findings
of fact for plain error and conclusions of law de novo. Women’s Med. Ctr. v. Bell,
248 F.3d 411, 419 (5th Cir. 2001).
      A litigant must establish the following four requirements to be entitled to
a preliminary injunction: (1) “a substantial likelihood that plaintiff will prevail
on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury

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if the injunction is not granted, (3) that the threatened injury to plaintiff
outweighs the threatened harm the injunction may do to the defendant, and
(4) that granting the preliminary injunction will not disserve the public
interest.” Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
A preliminary injunction is “an extraordinary and drastic remedy.” Id. at 573.
The party with the burden must “clearly carr[y] the burden of persuasion.” Miss.
Power & Light Co., 760 F.2d at 621.
      Turning to the first prong, Kennedy must show a substantial likelihood
that he can prove that prison officials acted with deliberate indifference to
Kennedy’s medical needs so as to cause “unnecessary or wanton infliction of
pain.” Estelle v. Gamble, 429 U.S. 97, 105 (1976) (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976).     This requires proof that the prison officials were
subjectively aware of a substantial risk of serious harm and were deliberately
indifferent to that risk. Hare v. City of Corinth, 74 F.3d 633, 648-49 (5th Cir.
1996) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)).           Deliberate
indifference means that (1) prison officials were “aware of facts from which an
inference of substantial risk of serious harm could be drawn; (2) the official[s]
actually drew that inference; and (3) the official[s’] response indicates the
official[s] subjectively intended that harm occur.” Thompson v. Upshur County,
245 F.3d 447, 458-59 (5th Cir. 2001) (citing Hare, 74 F.3d at 649-50). Deliberate
indifference is treated as similar to criminal recklessness. Farmer, 511 U.S. at
839-40. Deliberate indifference cannot be inferred from a negligent response to
a substantial risk of serious harm. Hare, 74 F.3d at 649.
      In the context of medical care to prisoners, courts have found that just
because a prisoner does not agree that the medical care offered is appropriate,
this is not enough to suffice for a claim of deliberate indifference to serious
medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citing
Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977). It is not enough that the

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diagnosis is incorrect. Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001). The prisoner must instead establish 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.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985). Indeed, courts have found that evidence of medical exams, sick calls, and
diagnoses have been used to rebut a claim of deliberate indifference. See, e.g.,
Sexton v. Young, No. 07-0088, 2007 U.S. Dist. LEXIS 25147, at *3-4 (W.D. La.
Mar. 12, 2007).
       The record establishes that the district court considered Kennedy’s sick
calls and exams, his continuous medical care for his chronic back pain, and his
conversations with medical staff. Thus, the record supports the district court’s
order. The facts alleged do not show that defendants’ responses indicate that
they subjectively intended to harm him. Kennedy’s disagreement over the next
steps in his medical treatment—whether or not a neurosurgeon from an outside
treatment center was necessary—is not sufficient to establish deliberate
indifference.   Rather, the district court acknowledged the medical staff’s
consideration of the benefits of pain management treatment over surgery. Thus,
the first crucial requirement needed to succeed on a temporary injunction has
not been established. Because Kennedy has not shown a substantial likelihood
of succeeding on this claim, he is not entitled to a preliminary injunction.
Accordingly, the district court did not err.
      We DISMISS the appeal of a denial of a temporary restraining order for
lack of jurisdiction. We AFFIRM the district court’s order denying a preliminary
injunction for lack of abuse of discretion.




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