                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2007

Josey v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1877




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Recommended Citation
"Josey v. Beard" (2007). 2007 Decisions. Paper 614.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/614


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ALD-313                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 07-1877
                                 ________________

                                  LEROY JOSEY,

                                                     Appellant

                                            v.

CHIEF SECRETARY JEFFREY BEARD; SUPERINTENDENT MARILYN BROOKS;
          HEALTHCARE ADMINISTRATOR MAXINE OVERTON;
 MR. MARK BAKER, M.D.; DANIEL TELAGA, Ph.A.; TAMMY MOWRY, Ph.A.;
PAUL O’CONNER, DIRECTOR; GEORGE STRUDTMAN, REFERRAL SPECIALIST
                ____________________________________

                   On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                               (D.C. Civ. No. 06-00265)
                    District Judge: Honorable Sean J. McLaughlin
                   _______________________________________

  Submitted For Possible Dismissal Due to a Jurisdictional Defect or Under 28 U.S.C.
  § 1915(e)(2)(B) or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 19, 2007
    Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES

                               (Filed: August 6, 2007)
                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

            Appellant, Leroy Josey, appeals from the District Court’s denial of his

“Motion for Temporary Restraining Order.”
              Josey is an inmate currently confined at the State Correctional Institution at

Albion, Pennsylvania. His complaint alleges that the facility has failed to provide

medical treatment for his chronic Hepatitis C. Shortly after filing his complaint, Josey

moved for a temporary restraining order, requesting that the court order immediate

treatment. After hearing testimony from both appellant and a physician’s assistant at SCI

Albion, the Magistrate Judge issued an oral report and recommendation that the motion

be denied. The District Court approved this recommendation and denied Josey’s timely

request for reconsideration.1

              At the outset, we must determine the nature of the District Court’s Order.

See Cohen v. Board of Trustees, 867 F.2d 1455, 1466 (3d Cir. 1989) (en banc)(“the label

put on an order by the district court does not prevent the appellate tribunal from treating it

as an injunction for purposes of section 1292(a)(1).” ). As in Page v. Bartels, the nature

of the Order in this case is somewhat ambiguous. 248 F.3d 175, 186 (3d Cir. 2001).

While the Magistrate Judge characterized the proceedings as relating to a request for a

temporary restraining order, she solicited testimony from both sides and applied the well-

known four-prong test for preliminary injunctive relief. See Transcript of December 18,

2006, Hearing at 9; Page, 248 F.3d at 186. We will therefore treat this as an appeal from

the denial of a preliminary injunction, over which we have jurisdiction under 28 U.S.C. §

1292(a)(1). The District Court’s denial of preliminary injunctive relief will be reversed


  1
    We construe the document submitted on January 23, 2007, and titled “Motion/Letter
of Fact” as a motion for reconsideration on the basis of newly discovered evidence.

                                              2
only if the court “abused its discretion, committed an obvious error in applying the law,

or made a serious mistake in considering the proof.” Loretangeli v. Critelli, 853 F.2d

186, 193 (3d Cir. 1988).

              To obtain a preliminary injunction, the moving party must show “(1) a

likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction

is denied; (3) that granting preliminary relief will not result in even greater harm to the

nonmoving party; and (4) that the public interest favors such relief.” Child Evangelism

Fellowship of N.J., Inc. v. Stafford Township Sch., 386 F.3d 514, 524 (3d Cir.

2004)(citation omitted). Here, the Magistrate Judge found that Josey had demonstrated

neither a likelihood of success on the merits nor a danger of irreparable harm. The

Court’s conclusion that appellant likely could not demonstrate deliberate indifference on

the part of the defendants was supported by testimony from both appellant and the prison

physician’s assistant that defendants were, in fact, endeavoring to treat his medical

conditions. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Nor was it an abuse of

discretion to conclude, based on the testimony, that appellant would suffer irreparable

harm if the injunction were denied.

              Accordingly, we will summarily affirm the District Court’s Order.

Appellant’s “Motion for Transfer to Federal Jurisdiction for Emergency Medical

Treatment” is denied.




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