                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                        UNITED STATES COURT OF APPEALS
                                                                          September 12, 2003
                             FOR THE FIFTH CIRCUIT
                                                                        Charles R. Fulbruge III
                               _________________________                        Clerk
                                      No. 03-30419
                                 SUMMARY CALENDAR
                               _________________________

DENARD DARNELL NEAL

                    Plaintiff - Appellant

  v.

FEDERAL BUREAU OF PRISONS; KATHLEEN HAWK-SAWYER; RONALD G
THOMPSON; CARL CASTERLINE; JANE HASCHEMEYER; WHITE, Mr., Mailroom
Supervisor; ERICKSON, Mr., Assistant Mailroom Supervisor; HALTIWANGER, Mr.;
CASTILLO, Ms.; PHELPS, Mr.; SMITH, Mr.; HARRELL WATTS; SHERREL BOZEMAN;
LESTER PHILLIPS, In His Individual and Official Capacity; TRANSOU, Lieutenant, In His
Individual and Official Capacity; BOBBY TYLER

                    Defendants - Appellees

DENARD DARNELL NEAL

                    Plaintiff - Appellant

   v.

KATHLEEN HAWK SAWYER; CARL CASTERLINE; SHERRELL BOZEMAN; RONALD G
THOMPSON; HARRELL WATTS; WHITE, Mr.; ERICKSON, Mr.; PHELIPS, Mr.;
HALTIWANGER, Mr.; SMITH, Mr.; CASTILLO, Ms.; JANE HASCHEMEYER

                  Defendants - Appellees
______________________________________________________________________________

                     Appeal from the United States District Court
                         for the Western District of Louisiana
                                   (02-CV-1908)
                                   (02-CV-1942)
______________________________________________________________________________



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Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

       In this appeal we review the district court's decision to deny Plaintiff-Appellant, Denard

Darnell Neal’s (hereinafter “Neal”), motion for a temporary restraining order or preliminary

injunction in his civil rights action filed pursuant to 42 U.S.C. § 1983. For the following reasons,

we affirm the district court’s decision.

                                                  I.

                       FACTUAL AND PROCEDURAL BACKGROUND

       Neal has filed several civil actions seeking monetary damages and injunctive relief against

the Federal Bureau of Prisons (hereinafter “BOP”) and employees of both the BOP and the

United States Penitentiary at Pollock, Louisiana. Neal alleges numerous violations of his

constitutional rights by prison officials, including 1) forcible interviews; 2) charging inmates for

typewriter ribbons and underwear; 3) tampering with legal mail; and 4) a corrupt administrative

remedy system. Neal’s initial request was for a preliminary injunction ordering Defendants to

transfer him to another prison.

       Neal also filed a motion for a temporary restraining order against eight Defendants. This

request resulted from an alleged attack on Neal by prison officials when Neal refused to allow

officers to put another inmate in Neal’s cell. In his motion for a temporary restraining order, Neal

claimed 1) violations of the Eight Amendment right to be free of cruel and unusual punishment; 2)

violation of the Torture Victim Protection Act of 1991; 3) an equal protection violation; 4)


       1
        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.

                                                  -2-
deliberate indifference to medical needs; 5) retaliation; and 6) denial of access to the

administrative remedy process.

          Neal seeks a court order 1) directing Defendants to cease assaulting Neal; 2) restricting

Defendants from having contact with Neal pending an investigation; 3) directing Defendants to

identify all prison staff involved in the alleged assault; 4) placing Neal in protective custody; 5)

ordering Defendants to preserve the videotape of the alleged assault; and 6) providing Neal access

to administrative remedies.

          The district court denied Neal’s motion for a temporary restraining order and preliminary

injunction. The court ruled that Neal had not alleged any specific facts showing a substantial

threat of irreparable injury if his requested injunction was not granted. The district court also

ruled that Neal had failed to prove a substantial likelihood that his cause would succeed on the

merits.

                                                   II.

                                    APPELLATE JURISDICTION

          Due to the way in which Neal framed his motion for a temporary restraining order, this

court must examine the basis of its jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.

1987) (the court must examine its jurisdiction on its own motion if necessary). Denial of a motion

for a temporary restraining order is not appealable. In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990).

However, denial of a preliminary injunction is immediately appealable, if the injunction is related

to the substantive issues of the litigation. 28 U.S.C. § 1292(a)(1); Siebert v. Great Northern

Development Co., 494 F.2d 510, 511 (5th Cir. 1974); Lakedreams v. Taylor, 932 F.2d 1103, 1107

(5th Cir. 1991). Neal designated his motion as a motion for a temporary restraining order, but the


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relief he requests is only available by a preliminary injunction because the relief sought would

extend beyond the ten-day limit of a temporary restraining order. Because the injunctive relief

requested by Neal is related to the substantive issues of the litigation, liberally construed, Neal’s

request constitutes a motion for preliminary injunction. Thus, this court has jurisdiction to hear

the appeal.

                                                   III.

                                      STANDARD OF REVIEW

        We review the district court’s decision denying Neal’s motion for preliminary injunction

for abuse of discretion. White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). The decision to

deny a preliminary injunction will be reversed by this court “only under extraordinary

circumstances.” Id.

                                                   IV.

                                   PRELIMINARY INJUNCTION

        To receive a preliminary injunction, Neal must prove 1) a substantial likelihood of success

on the merits of his case; 2) a substantial threat that failure to grant the order will result in

irreparable injury; 3) the threatened injury outweighs any damage that the injunction will cause

Defendants; and 4) the injunction will not have an adverse affect on the public interest. Women’s

Med. Ctr. v. Bell, 248 F.3d 411, 418-420 (5th Cir. 2001); Lakedreams, 932 F.2d at 1107. Neal

must prove all four elements and failure to prove any one of them will result in denial of the

motion. Enterprise Intern, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464,

472 (5th Cir. 1985).

        Neal has not shown that the district court abused its discretion in denying his motion for a


                                                   -4-
preliminary injunction because Neal has not established a substantial threat of irreparable injury.

Neal alleges no facts beyond the conclusory allegations of a conspiracy against him that suggest

the prison staff will assault him in the future. Howard v. King, 707 F.2d 215, 219-220 (5th Cir.

1983). In regards to the surveillance tape which Neal purports is evidence of the alleged assault,

Neal can seek its production through the regular discovery process. U.S. v. Pretel, 939 F.2d 233,

239-240 (5th Cir. 1991) (defendant could have sought preservation of audiotapes by discovery

process). Any preliminary injunction issued by the court would merely be an order for Defendants

to do their duty.

                                                 V.

                                          CONCLUSION

       For the foregoing reasons the judgment of the district court is affirmed.




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