Anthony Wheeler v. Paul Talbot

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3294
ANTHONY WHEELER,
Plaintiff-Appellant,
v.
PAUL TALBOT,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 12-CV-2281 — Michael P. McCuskey, Judge.
____________________
SUBMITTED AUGUST 28, 2014 * — DECIDED OCTOBER 20, 2014
____________________
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE,
Circuit Judges.
WOOD, Chief Judge. Anthony Wheeler, an Illinois prison-
er, filed this civil-rights suit against his prison’s medical di-
rector, Dr. Paul Talbot, for alleged deliberate indifference to
*After examining the briefs and record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See FED. R. APP. P. 32(a)(2)(C).
2 No. 13-3294
two serious medical needs. See 42 U.S.C. § 1983. (Other de-
fendants and claims are irrelevant to this appeal.) Wheeler
first alleges that he experiences excruciating pain from
“large and protruding” keloids (growths of scar tissue) on
his chest, hips, and legs. He also alleges that he tested posi-
tive for a stomach infection caused by the bacterium helico-
bacter pylori. Dr. Talbot, according to Wheeler, ignored both
conditions. The district court allowed the keloid claim to
proceed but dismissed the h. pylori claim because the blood-
test results that Wheeler attached to his complaint establish
that he tested negative for the infection. The court then de-
nied a motion from Wheeler that requested a “temporary
restraining order and preliminary injunction” requiring Dr.
Talbot to refer Wheeler immediately to “a suitable doctor.”
The court’s order denying the motion states in full: “TEXT
ORDER denying Motion for Preliminary Injunction. This
court concludes that there is no basis for injunctive relief in
this case.” Wheeler appeals the denial under 28 U.S.C.
§ 1292(a)(1).
Despite its explicit reference to a preliminary injunction,
the district court’s order might be read as denying only
Wheeler’s motion for a temporary restraining order. One
reason to do so is that a court may not issue a preliminary
injunction without advance notice to the adverse party, FED.
R. CIV. P. 65(a)(1), and Dr. Talbot had not yet been served
when the district court acted on Wheeler’s motion. 1 Another
1 The record shows that the defendants were not served until after
the district court denied the motion. Wheeler nonetheless appended a
“proof of service” notice to his filings. Even so, we see nothing to indi-
cate that he was trying to mislead the district court. The court was re-
sponsible for authorizing service, and it had explained to Wheeler in an
No. 13-3294 3
is that the district court must provide reasons for denying
preliminary injunctive relief, see FED. R. CIV. P. 52(a)(2); CIR.
R. 50, but the court did not do so here. If the better under-
standing of the court’s order is that it denied only the por-
tion of Wheeler’s request that sought a temporary restrain-
ing order, then, as our dissenting colleague points out, we
would be required to dismiss this appeal for lack of jurisdic-
tion. See Cnty., Mun. Emps.’ Supervisors’ & Foreman’s Union
Local 1001 v. Laborers’ Int’l Union of N. Am., 365 F.3d 576, 578
(7th Cir. 2004).
We think it best, however, to take the district court at its
word. The court certainly knew the difference between a
TRO and a preliminary injunction, and its order specified
that it was denying Wheeler’s motion for a “preliminary in-
junction” because there was no basis for “injunctive relief.”
This understanding of the district court’s order is not un-
dermined by Rule 65(a)’s requirement that adverse parties
receive notice before preliminary injunctions are issued, for
Wheeler’s motion was denied. See Kellas v. Lane, 923 F.2d
492, 496 (7th Cir. 1990) (concluding that lack of notice to ad-
verse parties was a “non-issue” because the motion for pre-
liminary injunctive relief was denied). Construed as the de-
nial of a preliminary injunction, this is an order that properly
may be appealed immediately. See 28 U.S.C. § 1292(a)(1).
As we mentioned, the district court failed to supply rea-
sons for denying preliminary injunctive relief. Ordinarily we
would remand the case and require the court to supply those
earlier order that “no Defendants have been served and no Defendants
have appeared in this action.” It is more likely that Wheeler did not un-
derstand that this statement should have been omitted.
4 No. 13-3294
reasons. See Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996);
Sims v. Lucas, 9 F.3d 1293, 1294 (7th Cir. 1993); DiLeo v. Ernst
& Young, 901 F.3d 624, 626 (7th Cir. 1990). But that step is not
necessary here because, even ignoring the lack of advance
notice to Dr. Talbot, there is enough in this record to demon-
strate that the requested relief—immediate referral to anoth-
er doctor—is unwarranted. Wheeler’s h. pylori claim pro-
vides no basis for a preliminary injunction because the lab
results on which he relies refute that claim. Nor has Wheeler
presented evidence that could support an immediate referral
to treat his keloids. He asks us to rely on the medical records
attached to his brief, but those records, which relate to two
appointments with the prison’s medical staff, do not help
him. The records reflect that Wheeler told the staff that his
keloids hurt and “periodically ooze[] puss [sic].” But the staff
noted in those records that he showed no “obvious discom-
fort” and observed that his “skin integrity is intact” and his
keloids are “small.” Staff also instructed Wheeler to take ac-
etaminophen for pain relief and to return if his symptoms
got worse. This evidence, which is all that he supplied,
shows neither that Wheeler will experience irreparable harm
without a preliminary injunction nor that his deliberate-
indifference claim against Dr. Talbot has a reasonable likeli-
hood of success. Because Wheeler does not meet the re-
quirements for preliminary relief, see Munaf v. Geren, 553
U.S. 674, 690 (2008); Stuller, Inc. v. Steak N Shake Enters., 695
F.3d 676, 678 (7th Cir. 2012), the district court did not abuse
its discretion in denying Wheeler’s motion.
AFFIRMED.
No. 13-3294 5
RIPPLE, Circuit Judge, dissenting. I cannot agree with the
majority’s determination that the district court’s July 23,
2013, order denying “injunctive relief” was the denial of a
motion for a preliminary injunction. Given the context in
which the order was issued and the district court’s earlier
acknowledgment of the steps that would be necessary before
entering a preliminary injunction, I believe that we must
construe the district court’s ruling as a denial of a temporary
restraining order. Because it is well established that we do
not have appellate jurisdiction to review a district court’s
denial of a temporary restraining order, I would dismiss the
appeal for lack of jurisdiction.
The procedural context in which a district court
addresses a request for injunctive relief is always important.
Under 28 U.S.C. § 1915A, a district court must review the
complaint in all civil actions in which a prisoner seeks
redress from a governmental entity, officer or employee.
The court is tasked with identifying cognizable claims and
dismissing those that fail to state a claim upon which relief
may be granted. It was during the § 1915A screening process
that the district court considered Mr. Wheeler’s motion.
Mr. Wheeler filed his initial complaint on October 23,
2012. In a November 1, 2012, order, the district court
outlined the procedure it would utilize to complete the
screening process under § 1915A. The court notified Mr.
Wheeler that, during an upcoming video conference with the
court, he would be required to identify each of his claims
and to identify each of the defendants.
6 No. 13-3294
During the screening process, the district court held
several “merit review hearings.” 1 The first hearing was held
on November 15, 2012, after which Mr. Wheeler was
instructed to amend his complaint to “specify[] what other
defendants have done.” 2 On December 4, Mr. Wheeler filed
his motion requesting a temporary restraining order or
preliminary injunction. He filed his second amended
complaint on December 11, and the court scheduled a
second merit review hearing for January 28, 2013.
On January 25, 2013, the court issued an order disposing
of nine pending motions. At that time, the court refrained
from acting on Mr. Wheeler’s motion for a temporary
restraining order or preliminary injunction. The district
court stated that, before it would award injunctive relief, it
would allow the defendants to respond and receive evidence
on the issue. 3 Specifically, the district court referenced our
decision in Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680 (7th Cir. 2012), and stated that, before it would rule on
Mr. Wheeler’s “Emergency Motion for Leave to File
1 We have prohibited the oral examination of a plaintiff by the court
in order to elicit answers that will enable the court to resolve contestable
factual issues during the screening process. See Williams v. Wahner, 731
F.3d 731, 733 (7th Cir. 2013). We have instructed that a district court may
review a complaint to determine whether it states a valid claim. If the
court is skeptical from its reading of the complaint, it may institute a
summary judgment proceeding. Id. A district court may also interview
the plaintiff to clarify an unclear pro se complaint. See id. at 734. It is
unclear from the record whether the district court’s merit review
hearings in this case went beyond clarifying the complaint.
2 Nov. 15, 2012 Docket Entry.
3 R.27 at 8.
No. 13-3294 7
Temporary Restraining Order and Preliminary Injunction”
and grant the “extraordinary step of awarding injunctive
relief,” it needed to hear from the defendants and receive
evidence on the issue. 4 Accordingly, the court took
Mr. Wheeler’s motion under advisement.
At the January 28 hearing, later changed to a status
conference, the court directed Mr. Wheeler to consolidate his
claims in a third amended complaint and indicated that it
would complete its screening after the amended complaint
was filed. The court held its final merit review hearing on
March 27, 2013. On June 25, 2013, the court concluded that
Mr. Wheeler’s complaint failed to state a claim with regard
to counts 1, 4, 5 and 7. On June 28, 2013, the court spoke with
Mr. Wheeler by telephone, and the status of the case was
discussed.
Six months after its January 25 order, without
authorizing service of process to the defendants or
conducting an evidentiary hearing, the district court entered
its “text order” that simply stated that “[the] court concludes
that there is no basis for injunctive relief in this case.” 5 The
docket entry characterized the court’s order as denying
Mr. Wheeler’s “Motion for Preliminary Injunction.”
My colleagues rely on the wording of the text order. With
great respect, I cannot accept the court’s methodology or its
4 R.27 at 7–8 (citing Wheeler, 689 F.3d at 682).
5 Under Local Rule 5.9 of the United States District Court for the
Central District of Illinois, “[t]he assigned judge may grant routine
orders by a text-only entry upon the docket. When text-only entries are
made, no separate .pdf document will issue; the text-only entry will
constitute the Court’s only order on the matter.”
8 No. 13-3294
resulting characterization of the district court’s order as
denying a preliminary injunction. First, we ought to note the
precise nature of the action that the district court was asked
to take. Pending before the district court, at a very early
stage of the proceedings—before the defendants had even
been served—was a motion for either a temporary
restraining order or a preliminary injunction. 6 Second, the
majority’s reliance on the docket entry’s “explicit reference
to a preliminary injunction” 7 needs some refinement: The
reference on which the majority relies is to the title of
Mr. Wheeler’s motion on the docket. 8 It is not clear whether
the district court or the clerk so titled the disposition of
Mr. Wheeler’s motion. The docket entry only provides that
the district court did not think that there was a “basis for
injunctive relief.” 9 But even if the district court were to have
titled Mr. Wheeler’s motion in the docket entry, the title’s
focus on the preliminary injunction does not alter the
substance of the motion; the motion requested both a
temporary restraining order and a preliminary injunction.
The ambiguity in the docket entry disappears, however,
when it is considered in the context of the district court’s
earlier January 25 order. In that order, the district court
specifically had stated that it would notify the defendants
and receive evidence before ruling on the motion. At the
time the court entered the July 23, 2013, order, the court had
6 See R.9.
7 Majority Op. at 2.
8 See July 23, 2013 Docket Entry.
9 Id.
No. 13-3294 9
just completed its screening of the complaint. Indeed, the
defendants would not be served with notice of the complaint
until August 21, and at no point between January 25 and
July 23, did the district court receive evidence. Interpreting
the July 23 order as the denial of a preliminary injunction
thus assumes that the experienced district court, although
acutely aware of the steps necessarily antecedent to the entry
of preliminary injunctive relief, nevertheless proceeded in a
manner inconsistent with the settled law of this circuit 10 and,
indeed, of the Country, 11 and inconsistent with its own prior
statement of the proper method of proceeding.
10 See Wheeler, 689 F.3d at 682–83; cf. Medeco Sec. Locks, Inc. v.
Swiderek, 680 F.2d 37, 38 (7th Cir. 1981) (“Rule 65(b) provides that no
preliminary injunction shall be issued without notice to the adverse
party. Notice implies the opportunity to be heard. Hearing requires trial
on the issue or issues of fact. Trial on the issue of fact necessitates
opportunity to present evidence and not by only one side of the
controversy.” (internal quotation marks omitted)).
11 See 11A Charles Alan Wright et al., Federal Practice and Procedure
§ 2949 (3d ed. 2013) (“Although the timing requirements are applied
flexibly in practice, the underlying principle of giving the party opposing
the application notice and an adequate opportunity to respond is
carefully honored by the courts.”); see also Kaepa, Inc. v. Achilles Corp., 76
F.3d 624, 628 (5th Cir. 1996) (noting Federal Rule of Civil Procedure 65
requires that a party be given “ample opportunity to present their
respective views on the legal issues involved” (internal quotations
omitted)); Reed v. Cleveland Bd. of Ed., 581 F.2d 570, 573 (6th Cir. 1978)
(“We have held that [Rule 65] contemplates that the issuance of a
preliminary injunction shall be upon notice to the adverse party and
after a hearing. A hearing embodies the right to be heard on the
controverted facts, as well as upon the law.” (internal quotation marks
omitted)); Consolidation Coal Co. v. Disabled Miners of S. West Virginia, 442
F.2d 1261, 1269 (4th Cir. 1971) (“As we view the record, we can only
10 No. 13-3294
In my view, we should rely not on an oversimplified
docket entry by someone in the district court, but on the
manifest intent of the experienced district court, acting in
conformity with established law. It is far more sensible to
conclude that the district court oversimplified the title of
Mr. Wheeler’s motion than to conclude that the court meant
to issue a conflicting order. 12 The district court focused on
our admonition in Wheeler that it should receive evidence
before denying a preliminary injunction. In Wheeler, the
district court had denied the plaintiff’s motion for a
preliminary injunction before completing its screening of the
complaint. See 689 F.3d at 682. We vacated the order and
instructed the district court to authorize service of process to
the defendants and conduct an evidentiary hearing to
determine whether the plaintiff is entitled to relief before
ruling on a motion for a preliminary injunction. See id. at
682–83. Here, the district court specified that it would do just
that.
Moreover, the court’s handling of the motion is
consistent with ruling on a temporary restraining order.
conclude that for practical purposes plaintiffs obtained an ex parte
preliminary injunction in a case in which there were sharply disputed
questions of fact and of law. This was manifestly error, because Rule
65(a)(1) is explicit that no preliminary injunction shall be issued without
notice to the adverse party.” (internal quotation marks omitted)).
12The docket offers no additional insight into the meaning of the
court’s order. While the district court directed the clerk to construe
Mr. Wheeler’s “Motion for Leave to File Interlocutory Appeal” as a
“regular” notice of appeal under 18 U.S.C. § 1292(a)(1), see Oct. 16, 2013
Docket Entry, that edict does not lend support to the majority’s
interpretation of the court’s prior order.
No. 13-3294 11
“Nomenclature does not determine whether an order is a
preliminary injunction… .” Doe v. Vill. of Crestwood, 917 F.2d
1476, 1477 (7th Cir. 1990); see also Fideicomiso De La Tierra Del
Cano Martin Pena v. Fortuno, 582 F.3d 131, 133 (1st Cir. 2009)
(noting that characterizations by the district court or the
parties are not dispositive and that “[u]nder our case law, an
order has the practical effect of refusing an injunction if there
has been a full adversary hearing, or, in the absence of
review, further interlocutory relief is unavailable”). “The
essence of a temporary restraining order is its brevity, its ex
parte character and…its informality.” Geneva Assur.
Syndicate, Inc. v. Med. Emergency Servs. Assocs. S.C., 964 F.2d
599, 600 (7th Cir. 1992). Indeed, this proposition is so well
established that we have usually articulated it in
unpublished orders. 13 Here, the district court did not serve
the defendants with notice, hold a hearing or consider
evidence. To borrow from an oft-quoted proverb, if it walks
like a temporary restraining order and quacks like a
13 In Jackson v. FBI, 14 F.3d 604 (7th Cir. 1993) (unpublished table
decision), we held that a denial of an injunction was properly construed
as a temporary restraining order and therefore not appealable because
“[t]he FBI was not served with the complaint, nor was it present at the
hearing. …No witnesses were heard, no further arguments were
presented, and no other evidence was considered.” Id.; see also Smith v.
Frank, 99 Fed. App’x 742, 743 (7th Cir. 2004) (interpreting an ambiguous
order as denying a motion for a preliminary injunction, instead of a
temporary restraining order, when the court “gave the non-moving
party notice and an opportunity to be heard, conducted a full hearing,
and contemplated whether to grant relief pending trial”).
12 No. 13-3294
temporary restraining order, it must be a temporary
restraining order. 14
Because the court’s order is best interpreted as only
addressing Mr. Wheeler’s request for a temporary
restraining order, I would hold that we lack jurisdiction over
the appeal.
14 The court’s reliance on Kellas v. Lane, 923 F.2d 492 (7th Cir. 1990),
ignores entirely the crucial issue of context. That case did not involve the
§ 1915A screening procedure. There is, moreover, no indication that the
plaintiff ever sought a temporary restraining order rather than
preliminary relief. The Kellas panel’s harmless error analysis of
jurisdictional defects hardly has withstood the test of time in this court
or any other court. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317
n.3 (1988) (rejecting contention that courts should apply harmless-error
analysis because it “misunderstands the nature of a jurisdictional
requirement: a litigant’s failure to clear a jurisdictional hurdle can never
be ‘harmless’ or waived by a court”). To the extent that Kellas may be
read as standing for the proposition that all denials of temporary
restraining orders may be appealed, it is clearly a derelict in the stream
of the law.