Unpublished Disposition, 852 F.2d 572 (9th Cir. 1987)

MEMORANDUM^** 

James B. Murray, a Nevada state prisoner, appeals pro se the denial of his motion for a preliminary injunction in his 42 U.S.C. § 1983 action. Murray alleges that prison officials intentionally deprived him of medical treatment for his epilepsy, hearing loss, and head injuries. We affirm.

FACTS

On February 1, 1986, while incarcerated at the Nevada Southern Desert Correctional Center in Indian Springs, Murray suffered an epileptic seizure and fell from his top bunk. Prison authorities transported Murray to the Southern Nevada Memorial Hospital, where physicians diagnosed a closed head injury, trauma to the right ear, and a possible seizure disorder.

On September 10, 1986, Murray filed a 42 U.S.C. § 1983 civil rights complaint against Arizona prison officials, alleging deliberate indifference to his medical needs and deprivation of certain personal property. In addition to damages, Murray sought a preliminary injunction requiring the officials to transport him to a University medical center for treatment of epilepsy, head injuries, and hearing loss, and enjoining them from transporting him to another prison facility.¹  The district court denied Murray's motion for a preliminary injunction on February 6, 1987, and Murray filed a timely notice of appeal.² 

DISCUSSION

The granting or denying of injunctive relief rests within the sound discretion of the trial court. SEC v. Goldfield Deep Mines Co., 758 F.2d 459, 465 (9th Cir. 1985). This court will reverse a district court's decision to deny a preliminary injunction only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous factual findings. Sierra Club v. Marsh, 816 F.2d 1376, 1382 (9th Cir. 1987).

A district court relies on an erroneous legal standard in its determination of whether or not to grant a preliminary injunction if it "employs the wrong standard governing the grant or denial" or "misapprehends the law with respect to the underlying issues in the litigation." Lynch v. Rank, 747 F.2d 528, 534 (9th Cir. 1984), reh'g granted and opinion modified on other grounds, 763 F.2d 1098 (9th Cir. 1985).

The district court in this case employed a standard that has been well-established in this circuit. Under this standard, the moving party has the burden of demonstrating either: (1) a combination of probable success on the merits plus the possibility of irreparable injury if relief is not granted; or (2) serious questions going to the merits plus a balance of hardships tilting sharply in favor of the moving party. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir. 1987); Lynch, 747 F.2d at 534 n. 9. At the "irreducible minimum," the moving party must demonstrate "a fair chance of success on the merits" or "questions ... serious enough to require litigation." Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 411 U.S. 937 (1979). While the district court primarily considered the first test, it also found that Murray had not met the "irreducible minimum" requirements. See Benda, 584 F.2d at 315. The court therefore did employ the correct legal standard regarding the granting or denying of the preliminary injunction.

The court also applied the correct standard with respect to the underlying substantive issues in Murray's action. As the court properly noted, a prisoner bringing an eighth amendment claim based on medical indifference must allege acts or omissions sufficiently harmful to evidence deliberate indifference to the prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986).

The district court did not base its denial of Murray's motion on "clearly erroneous findings of fact." See Sierra Club, 816 F.2d at 1382. The court examined several documents in the record, including a doctor's report on Murray's condition and an affidavit of a Deputy Attorney General regarding Murray's transfer to a correction center with superior medical facilities. From these and other documents, the court could reasonably find that Murray had received continuous medical treatment and attention, that he saw a hearing specialist, and that he received a hearing aid.

Given that the district court used the correct legal standard and did not base its decision on clearly erroneous factual findings, the final question to be determined is whether there was an abuse of discretion. See Sierra Club, 816 F.2d at 1382. The court found that Murray failed to show any chance of success on the merits of his medical indifference claim. Specifically, Murray did not allege any facts showing that the prison officials had acted with "deliberate indifference" to his medical needs. Absent such a showing, Murray could not prevail on his eighth amendment claim. See Toussaint, 801 F.2d at 1111. The court therefore appropriately evaluated the probable outcome on the merits.

A moving party who fails to show a fair chance of success on the merits is not entitled to a preliminary injunction. See Benda, 584 F.2d at 315. Upon determining that Murray had failed to make such a showing, the district court's inquiry properly ended. There was no abuse of discretion in the court's denial of the preliminary injunction.

AFFIRMED.