                             NUMBER 13-06-366-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DANIEL MUNIZ,                                                            Appellant,

                                          v.

TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, ET AL.,                                                Appellees.


     On appeal from the 36th District Court of Bee County, Texas.


                        MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      Appellant, Daniel Muniz, proceeding pro se and in forma pauperis, is an inmate

confined in the McConnell Unit of the Texas Department of Criminal Justice–Correctional

Institutions Division (“TDCJ”). He sued appellees—University of Texas Medical Branch,

TDCJ, Maximilliano Herrera, and Eileen Kennedy—for denial of medical treatment
pursuant to 42 U.S.C., section 1983.1 Appellant appeals from the denial of his motion for

a temporary injunction against appellees. We affirm.

                                              I. Background

       In his “Original Petition for Preliminary Injunction,” appellant stated the following:

               Plaintiff suffers from bleeding hemorrhoids that begin [sic] in the early
       part of 1994. Plaintiff has been repeatedly scheduled and re-schedule [sic]
       for surgery over ten (10) years now. As the time continues to pass, the
       Plaintiff’s condition continues to deteriorate, and continues to bleed
       excessively with extended pain from his condition. The Defendants’[sic]
       have repeatedly refused to extend proper medical care and treatment to the
       Plaintiff for his condition to date upon request after request to each of the
       named Defendants’ [sic].

Appellant asserted that appellees’ failure to provide him with adequate medical treatment

violates the Eighth Amendment’s prohibition against cruel and unusual punishment.2 His

petition requested the trial court to enjoin appellees “from refusing to provide [him]

adequate medical care and treatment prevalent under the standard of medical treatment

in Bee County, Texas, and the 8th Amendment to the United States Constitution.” The

petition further sought a declaratory judgment and compensatory damages in the sum of

$250,000.

       On June 6, 2006, the trial court held a hearing on appellant’s petition for preliminary

injunction. Appellant informed the trial court of his medical condition and the pain incurred

from it; he also spoke of his inability to acquire medical treatment for his condition.

Appellant told the court that he wanted an injunction that would order appellees to provide

him with the necessary operation to cure his condition. The trial court denied the


       1
           42 U.S.C. § 1983 (2000).

       2
           See U.S. C ON ST . am end. VIII.

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injunction, stating, in part, that appellant had not presented sufficient evidence that would

warrant granting the injunction.

                                             II. Applicable Law

         The First Court of Appeals, in discussing temporary injunctions, has stated the

following:

                 In a hearing on application for a temporary injunction the only question
         before the court is the right of the applicant to a preservation of the status
         quo of the subject matter of the suit pending a final trial of the case on its
         merits. To warrant the issuance of the writ, the applicant need only show a
         probable right and a probable injury; he is not required to establish that he
         will finally prevail in the litigation. Where the pleadings and the evidence
         present a case of probable right and probable injury, the trial court is clothed
         with broad discretion in determining whether to issue the writ and its order
         will be reversed only on a showing of a clear abuse of discretion.3

To establish a probable right to recovery, the applicant must have a cause of action for

which he may be granted relief.4 To demonstrate probable injury or harm, an applicant

must show an injury for which there can be no real legal measure of damages or none that

can be determined with a sufficient degree of certainty, i.e., a noncompensable injury.5

         “There are two general types of temporary injunctions: prohibitive and mandatory.

A prohibitive injunction forbids conduct, whereas a mandatory injunction requires it.”6 The

temporary injunction in this case is mandatory because it requires appellees to provide

appellant with surgical care.



         3
             Rhodia, Inc. v. Harris County, 470 S.W .2d 415, 419 (Tex. Civ. App.–Houston [1st Dist.] 1971, no
writ).

         4
             Universal Health Servs., Inc. v. Thompson, 24 S.W .3d 570, 577 (Tex. App.–Austin 2000, no pet.).

         5
             Id.

         6
             RP&R, Inc. v. Territo, 32 S.W .3d 396, 400 (Tex. App.–Houston [14th Dist.] 2000, no pet.).

                                                        3
               Although ordinarily a mandatory injunction will not be granted before
       final hearing, a trial court has the power to grant a mandatory injunction at
       a hearing for a temporary injunction where the circumstances justify it.
       Whether a temporary mandatory injunction will be granted is within the sound
       discretion of the trial court. The grant thereof will be denied, however, unless
       the right thereto is clear and compelling and a case of extreme necessity or
       hardship is presented.7

       The standard to be applied in a case involving an alleged Eighth Amendment

violation arising from the denial of medical care is well settled:

               In order to establish an Eighth Amendment claim arising out of
       inadequate medical care, a prisoner must prove deliberate indifference to his
       serious medical needs. This standard incorporates both objective and
       subjective elements. The objective medical need element measures the
       severity of the alleged deprivation, while the subjective deliberate
       indifference element ensures that the defendant prison official acted with a
       sufficiently culpable state of mind.

               Because the Eighth Amendment is not a vehicle for bringing medical
       malpractice claims, nor a substitute for state tort law, not every lapse in
       prison medical care will rise to the level of a constitutional violation. The
       Supreme Court [has] explained that the Eighth Amendment’s prohibition on
       cruel and unusual punishments encompasses the deliberate failure to treat
       a prisoner’s serious illness or injury resulting in the infliction of unnecessary
       pain and suffering. Because society does not expect that prisoners will have
       unqualified access to health care, a prisoner must first make this threshold
       showing of serious illness or injury in order to state an Eighth Amendment
       claim for denial of medical care. Similarly, a prisoner must demonstrate
       more than an inadvertent failure to provide adequate medical care by prison
       officials to successfully establish Eighth Amendment liability. An official acts
       with the requisite deliberate indifference when that official knows of and
       disregards an excessive risk to inmate health or safety, a state of mind
       equivalent to the familiar standard of recklessness as used in criminal law.8

                                               III. Discussion

       Though presented as one issue on appeal, appellant’s brief appears to raise two



       7
           Rhodia, Inc., 470 S.W .2d at 419.

       8
           Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations and internal quotations om itted).

                                                       4
issues. In one issue, appellant contends that the trial court wrongly denied him the

opportunity to be heard and present evidence before denying his motion for temporary

injunction. We overrule this issue because the record reveals that appellant was provided

the aforementioned opportunities. In the remaining issue, appellant asserts the trial court

erred in denying his motion for temporary injunction. We disagree.

       In an affidavit attached to his petition for preliminary injunction, appellant stated: “I

have repeatedly asked that I be treated for my condiction [sic], however, my requests for

treatment have gone ignored time after time. In the last ten (10) years, I have been

scheduled and re-schedule [sic] for treatment, and referrals have been denied.” Though

appellant claims his requests for treatment have been ignored, the transcript from the

hearing on appellant’s petition indicates that appellant has received some form of medical

attention. At the hearing, the trial court asked appellant if he had “seen a doctor and talked

to them about what type of operation [he] would need,” to which appellant replied: “I

already talked to everybody and they don’t want to do anything about it.” Appellant further

stated that he had requested that his medical records be delivered to the court so the court

could ascertain the status of appellant’s complained-of medical condition. The medical

records, however, were not yet available to the court at the time of the hearing.

       Appellant did not contend that his need for surgical treatment was supported by the

recommendation of a medical doctor, nor did he allege that he was denied any and all

forms of medical care for his condition. Without more facts, appellant appears to have

merely presented the trial court with a difference in opinion regarding the treatment of his




                                               5
condition.9 Courts have disavowed any attempt to second-guess the propriety or adequacy

of a particular course of treatment, which remains a question of sound professional

judgment. Accordingly, courts should not intervene upon allegations of mere negligence,

mistake, or difference of opinion.10 We thus find that appellant did not prove he had a clear

and compelling right to the relief sought. Because there is no showing of a clear abuse of

discretion, we overrule appellant’s second issue.

                                            IV. Conclusion

       We affirm the trial court’s judgment.




                                                         LINDA REYNA YAÑEZ,
                                                         Justice




Memorandum Opinion delivered and
filed this the 17th day of July, 2008.




       9
           See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977).

       10
            See id.

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