







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
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.
		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
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
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.
1.  42 U.S.C. § 1983 (2000).
2.  See U.S. Const. amend. VIII.
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.).
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 omitted).
9.  See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977).
10.  See id.

