James v. Collins

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-40956 Summary Calendar _____________________

GLEN C. JAMES,

Plaintiff-Appellant,

versus

JAMES A. COLLINS, Individually and as Executive Director of Texas Department of Criminal Justice, et al.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (9:95-CV-229) _________________________________________________________________ February 7, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Glen C. James, pro se and in forma pauperis, appeals the

district court's failure to rule on his motion for injunctive

relief. We DISMISS the appeal.

I.

On July 5, 1995, James filed a complaint, pursuant to 42

U.S.C. § 1983, against various officers and employees of the Texas

Department of Criminal Justice, Institutional Division, claiming

denial of access to dental care and dental supplies, and seeking

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. damages and declaratory and injunctive relief. He sought a

temporary restraining order that October 13, to require the

defendants to provide him with dental care. That November 27, he

filed a notice of appeal from the district court's failure to rule

on injunctive relief. Shortly thereafter, on December 4, the

district court ordered James to file within 30 days an amended

pleading containing a more detailed factual statement of his

claims. (James' response to that order (if any) is not part of the

record on appeal.)

II.

In a "proper case", the district court's failure to enter an

order either granting or denying injunctive relief may be appealed

pursuant to 28 U.S.C. § 1292(a)(1), as the equivalent of an "order

refusing" injunctive relief.1 National Ass'n for Advancement of

Colored People v. Thompson, 321 F.2d 199, 202 (5th Cir. 1963). A

"proper case" under Thompson is one in which the plaintiff's rights

are so clearly established that the failure to grant injunctive

relief would be set aside by an appellate court as an abuse of

discretion. Id. On the other hand, not every failure to rule on

a request for injunctive relief is tantamount to a refusal to grant

injunctive relief. Id. For example, if the district court's

inaction is based on the need for study of the record and the

applicable law prior to ruling on a request for injunctive relief,

1 The denial of a motion for a temporary restraining order is not appealable. Matter of Lieb, 915 F.2d 180, 183 (5th Cir. 1990). Although James styled his request for injunctive relief as a motion for a temporary restraining order, we construe it liberally as a motion for a preliminary injunction.

- 2 - its failure to rule is not appealable under § 1292(a)(1). Id.

As is evident from the district court's recent order requiring

James to submit an amended complaint, the court determined that

"the record in this case is not yet sufficiently developed to show

[James'] entitlement to the relief" he seeks. United States v.

City of Jackson, 519 F.2d 1147, 1154 (5th Cir. 1975). Accordingly,

the district court's failure to rule on James' request for

injunctive relief, pending further development of the record, is

not appealable under § 1292(a)(1).2 See id.

III.

For the foregoing reasons, the appeal is

DISMISSED.

2 James' "Motion for Emergency Injunction Pending Appeal" is denied as moot.

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