* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 17, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40742

Summary Calendar

 

ROBERT P. DIXON, JR.,

Plaintiff-Appellant,

versus

DOUGLAS VANDERBILT,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:03-CV-235-DF-CMC

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Robert P. Dixon, Texas state prisoner # 26529-034, appeals

the denial of his motion seeking a restraining order and

preliminary injunctive relief precluding Officer Douglas

Vanderbilt from sexually harassing Dixon and retaliating against

him because Dixon files grievances complaining about the

harassment. Dixon sought to have searches conducted by

Vanderbilt witnessed or for Dixon to be transferred to another

facility.
No. 04-40742

-2-

This court must examine the basis of its jurisdiction on

its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987). Denial of a motion for a temporary restraining

order (TRO) is not appealable. Matter of Lieb, 915 F.2d 180, 183

(5th Cir. 1990). The denial of a preliminary injunction,

however, is immediately appealable, if it is related to the

substantive issues of the litigation. 28 U.S.C. § 1292(a)(1);

Siebert v. Great Northern Development Co., 494 F.2d 510, 511 (5th

Cir. 1974); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.

1991). 

Because Dixon sought relief that if granted would exceed the

10-day limit of a TRO, his motion was in effect a motion for

preliminary injunction related to the substantive issues in the

litigation and, thus, the denial of the motion is an appealable

order. See FED. R. CIV. P. 65(b).

The district court erroneously construed Dixon’s complaint

seeking injunctive relief as a 42 U.S.C. § 1983 complaint. Dixon 

is a federal prisoner suing a federal officer, and thus, Dixon is

not entitled to seek relief under 42 U.S.C. § 1983. See Manax v.

McNamara, 842 F.2d 808, 812 (5th Cir. 1988). Because he has

alleged a violation of his constitutional rights, Dixon is

entitled to seek injunctive relief to safeguard those rights. 

See Bell v. Hood, 327 U.S. 678, 684 (1946).

A movant for a preliminary injunction must demonstrate

each of the following: 1) a substantial likelihood of success
No. 04-40742

-3-

on the merits; 2) a substantial threat that failure to grant the

injunction will result in irreparable injury; 3) the threatened

injury outweighs any damage that the injunction will cause to

the adverse party; and 4) the injunction will not have an adverse

effect on the public interest. Women’s Med. Ctr. of Northwest

Houston v. Bell, 248 F.3d 411, 418-20 (5th Cir. 2001). 

“An injunction is an extraordinary remedy and should not

issue except upon a clear showing of possible irreparable harm.” 

Lewis v. S.S. Baune, 534 F.2d 1115, 1121 (5th Cir. 1976). 

Dixon’s allegations reflect that he was subject to violations of

his constitutional rights and that prison officials refused to

act to end the violations. See Elliott v. Lynn, 38 F.3d 188, 191

(5th Cir. 1994); Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.

2002); Downey v. Denton County, Tex., 119 F.3d 381, 385 n.6 (5th

Cir. 1997).

The magistrate judge’s determination that Dixon’s

allegations were conclusional is not supported by the record as

Dixon’s allegations were numerous and specific in nature. The

magistrate judge should have conducted a hearing on the

preliminary injunction motion and made factual findings on the

disputed issues concerning the reasonableness of the searches and

the alleged retaliatory conduct by Vanderbilt in determining

whether Dixon met the criteria for injunctive relief. Cf. Hay v.

Waldron, 834 F.2d 481, 485 (5th Cir. 1987).
No. 04-40742

-4-

The denial of Dixon’s motions seeking injunctive relief is

VACATED and the case is REMANDED to the district court for

further consideration of the motion for preliminary injunction.

VACATED AND REMANDED.