Frank W. Askew, Jr. v. W. Freeman

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No. 94-4009
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Frank W. Askew, Jr., *
*
Appellant, *
*
v. *
*
W. Freeman, CO-1; Lt. Brown, *
Delta Regional Unit, Arkansas *
Department of Correction; Major *
Larry D. Jordan, Delta Regional *
Unit, Arkansas Department of *
Correction; J. Gasaway, *
Assistant Warden, Delta Regional *
Unit, Arkansas Department of *
Correction; S. Frank Thompson, *
Warden, Delta Regional Unit, *
Arkansas Department of *
Correction; M. Fox, Inmate, *
Delta Regional Unit, Arkansas * Appeal from the United States
Department of Correction; R. * District Court for the
Byrd, Inmate, Delta Regional * Eastern District of Arkansas.
Unit, Arkansas Department of *
Correction; G. McCree, Inmate, * (UNPUBLISHED)
Delta Regional Unit, Arkansas *
Department of Correction; Dr. H. *
W. Thomas, Delta Regional Unit, *
Arkansas Department of *
Correction; Charlie Hopper, *
Disciplinary Hearing Officer, *
Delta Regional Unit, Arkansas *
Department of Correction; G. *
Phillips, Correctional Officer, *
Delta Regional Unit, Arkansas *
Department of Correction; James *
Thomas, Infirmary Manager, Delta *
Regional Unit, Arkansas *
Department of Correction; B. *
Phillips, CO-1; Gammel, CO-1, *
*
Appellees. *
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Submitted: December 7, 1995
Filed: December 18, 1995
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
In this civil rights action under 42 U.S.C. § 1983, Frank W. Askew,
Jr., an Arkansas inmate, appeals the district court's1 order denying his
request for a preliminary injunction against prison officials and his
motion to compel discovery. We affirm the order of the district court.
Askew alleged even though he suffers from epileptic seizures and a
physician recommended that he not use sharp tools, prison officials forced
him to do fieldwork chopping down trees using sharp instruments. Askew
also alleged prison medical personnel accused him of faking seizures.
Askew sought a preliminary injunction to prevent defendants from assigning
him to field duty, and to require defendants to recognize his medical
condition.
The district court denied the motion for a preliminary injunction,
concluding Askew had not shown a threat of irreparable harm and granting
relief would contravene public policy. The district court also denied
Askew's motion to compel discovery.
We conclude the district court did not abuse its discretion in
denying the motion for injunctive relief. In Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109 (8th Cir. 1981), this court identified four
factors district courts must consider in deciding whether to grant a
preliminary injunction: 1) the threat of irreparable harm to the movant;
2) the state of the balance between this harm and the injury that granting
the injunction will inflict
1
The Honorable Elsijane Trimble Roy, United States District
Judge for the Eastern District of Arkansas, adopting the report and
recommendation of the Honorable Jerry W. Cavaneau, United States
Magistrate Judge for the Eastern District of Arkansas.
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on other parties litigant; 3) the probability that the movant will succeed
on the merits; and 4) the public interest. Dataphase, 640 F.2d at 113.
Although no single factor is dispositive, id., a movant must establish a
threat of irreparable harm; without a finding of irreparable injury a
preliminary injunction should not be issued. Modern Computer Sys., Inc.
v. Modern Banking Sys., Inc., 871 F.2d 734, 738 (8th Cir. 1989) (en banc).
We agree Askew did not show the threat of irreparable harm. Even
assuming Askew has had seizures, only one of several physicians who have
examined Askew expressed a concern about Askew working with sharp objects,
and Askew did not identify any incidents in the field attributable to his
seizures. Under these facts, any threat of harm is speculative. See Local
Union No. 884 v. Bridgestone/Firestone, Inc., 61 F.3d 1347, 1355 (8th Cir.
1995). We also agree Askew has not demonstrated a probability of success
on the merits. See Aziz v. Moore, 8 F.3d 13, 15 (8th Cir. 1993) (per
curiam).
Finally, we conclude the district court did not abuse its discretion
in refusing to compel discovery of records already produced. See Kinkead
v. Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir. 1995) (district
court's refusal to compel discovery reviewed for gross abuse of
discretion).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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