     Case: 13-40598   Document: 00512564423   Page: 1   Date Filed: 03/18/2014




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


                              No. 13-40598                           FILED
                            Summary Calendar                   March 18, 2014
                                                                Lyle W. Cayce
                                                                     Clerk
BENJAMIN A. ROARK,

                                        Plaintiff-Appellant

v.

INDIVIDUALS OF THE FEDERAL BUREAU OF PRISONS, FORMER AND
CURRENT; ERIC HOLDER; ALBERTO GONZALES, Former United States
Attorney General; JOHN ASHCROFT, Former United States Attorney
General; JANET RENO, Former United States Attorney General; C. E.
SAMUELS, Current Director of Bureau of Prisons, also known as Charles E.
Samuels; MICHAEL J. CARVAJAL, Warden at FCI Texarkana; KEITH ROY,
Warden, FCI Three Rivers; WARDEN DAVID JUSTICE, Former Warden FCI
Texarkana; HARLEY LAPPIN, Former Director of Bureau of Prisons;
KATHLEEN HAWK, Former Director of Bureau of Prisons; HARREL WATTS,
Administrative Remedy Coordinator; REGIONAL DIRECTOR BUREAU OF
PRISONS G. MALDONADO; H. LINCON, Health Services Administrator;
VIRGINIA SEMIEN, Retired from FCI Texarkana; FMN BARNABAS, Former
H.S.A. at FCI Texarkana; PAUL KASTNER, Former Warden at FCI
Texarkana; LIRA VARGAS DEL-TORRO, Dentist in Texarkana; DOCTOR B.
MELLY, Contractee Orthopedic Consultant at FCI; FNU HARRISON, Dentist
at FCI Texarkana; REGINA FLANNERY, Medical/Dental FCI Records in
Texarkana; ALL DEFENDANTS; UNKNOWN 10; UNKNOWN 11;
UNKNOWN 13, BOP Director/Attorney General; MICHAEL A. PAPPAS, also
known as FNU Pappas,

                                        Defendants-Appellees


                Appeal from the United States District Court
                     for the Eastern District of Texas
                           USDC No. 5:12-CV-60
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                                      No. 13-40598

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Benjamin A. Roark, federal prisoner # 04243-003, filed a civil rights
complaint against the above named defendants.                    He also moved for a
temporary restraining order (TRO) and a preliminary injunction ordering the
defendants to provide requested dental evaluations and treatment, to provide
orthopedic evaluations and surgery for his hand, to provide sufficient writing
tables in the prison, to alleviate overcrowding and related issues resulting from
such overcrowding, and to provide sufficient medical staff for the prison
population.     The district court denied the requested TRO and injunction.
Roark filed a notice of interlocutory appeal.
       As an initial matter, Roark requests the appointment of counsel in his
brief. Absent exceptional circumstances, an indigent civil rights plaintiff has
no right to the appointment of counsel. Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982).       Roark has demonstrated he is capable of adequately
presenting the issues and facts involved in his case. Accordingly, his motion
for the appointment of counsel is denied.
       In addition, we do not have appellate jurisdiction over the denial of an
application for a TRO because it does not qualify as an “injunction” under
28 U.S.C. § 1292(a)(1). See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir.
1999); In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990). Therefore, to the extent
Roark appeals the denial of a TRO, that portion of his appeal is dismissed.
       Unlike a TRO, an order granting or denying an injunction is immediately
appealable. See § 1292(a)(1); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th
Cir. 1991).    We review the grant or denial of a motion for a preliminary


       * 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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                                 No. 13-40598

injunction for an abuse of discretion. Janvey v. Alguire, 647 F.3d 585, 591-92
(5th Cir. 2011). However, a request for mandatory relief, such as Roark’s, “is
particularly disfavored, and should not be issued unless the facts and law
clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243
(5th Cir. 1976).
      To secure a preliminary injunction, the moving party must establish “a
substantial likelihood of success on the merits,” “a substantial threat of
irreparable injury if the injunction is not issued,” “that the threatened
injury . . . outweighs any harm” that would result from granting the injunction,
and that granting the injunction “will not disserve the public interest.” Janvey,
647 F.3d at 595. Because we find that Roark has not shown that the facts and
the law “clearly favor” granting relief or that he has established the required
four elements for granting an injunction, we conclude that the district court
did not abuse its discretion by denying injunctive relief. See Janvey, 647 F.3d
at 591-92, 595; Martinez, 544 F.2d at 1243. Therefore, the district court’s
denial of Roark’s motion for a preliminary injunction is affirmed.
      MOTION FOR APPOINTMENT OF COUNSEL DENIED; DISMISSED
IN PART; AFFIRMED IN PART.




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