784 F.2d 713 (5th Cir. 1986), 85-4868, Southerland v. Thigpen

Docket Nº:85-4868.
Citation:784 F.2d 713
Party Name:Diane SOUTHERLAND and Matthew Lee Ray, An Infant, by Diane Southerland As Next Friend, Plaintiffs-Appellants, v. Morris THIGPEN, Individually and In His Official Capacity as Director of the Mississippi Department of Corrections, Defendant-Appellee.
Case Date:March 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 713

784 F.2d 713 (5th Cir. 1986)

Diane SOUTHERLAND and Matthew Lee Ray, An Infant, by Diane

Southerland As Next Friend, Plaintiffs-Appellants,

v.

Morris THIGPEN, Individually and In His Official Capacity as

Director of the Mississippi Department of

Corrections, Defendant-Appellee.

No. 85-4868.

United States Court of Appeals, Fifth Circuit

March 14, 1986

Page 714

Shirley Payne, Cynthia Stewart, Jackson, Miss., for plaintiffs-appellants.

Edwin Lloyd Pittman, Atty. Gen., Robert E. Gibbs, Asst. Atty. Gen., Jackson, Miss., Leonard C. Vincent, Staff Atty., Parchmen, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WILLIAMS, GARWOOD, and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Diane Southerland, a Mississippi prison inmate, and her infant son Matthew Lee Ray appeal the district court's denial of their requested temporary injunction to prevent the state's interference with their breast-feeding relationship. On February 3, 1986, we affirmed the district court's denial of plaintiffs' preliminary injunction motion. This opinion states the reasons for our decision.

Facts and Proceedings Below

Diane Southerland pleaded guilty to the embezzlement of $388.21 and was sentenced to five years in prison by a Mississippi state court. Southerland was pregnant when sentenced and when received by the Mississippi Department of Corrections. While in custody, she was transferred from the Mississippi Penitentiary at Parchman to the University Medical Center in Jackson, where she gave birth to Matthew Lee Ray on November 18, 1985. She began breast-feeding Matthew in the hospital. Matthew weighed nine pounds, five ounces at birth.

On November 20, 1985, the state attempted to remove Southerland from the hospital. On that day, she filed a complaint with the United States District Court for the Southern District of Mississippi seeking a temporary restraining order and a preliminary injunction. The district court granted a temporary restraining order by agreement of the parties, permitting Southerland and her baby to remain together in the hospital until a hearing could be held on November 22, 1985.

At the hearing, which by agreement of the parties was for both the restraining order and the temporary injunction, Southerland presented evidence that breast-feeding would be medically beneficial for her son because it would reduce his risk of allergies and diabetes. Matthew has a family history of allergy problems. Moreover, because his father has diabetes mellitus and his mother has gestational diabetes--both inheritable forms of the disease--Matthew is subject to a greater risk of diabetes than children of nondiabetic parents. In addition, breast-feeding generally aids infants in developing immunities from gastrointestinal and respiratory infections. Plaintiffs also presented testimony concerning the psychological benefits a child derives from breast-feeding.

Southerland has three older children, two daughters aged twenty-one and fourteen and a son aged nineteen, whom she did not breast-feed. These children have a different father from Matthew. It appears that their father does not have diabetes, and

Page 715

none of the children has contracted the disease. However, the two daughters have developed some allergies. There is no indication that these allergies constitute serious health problems.

The district court denied both the requested temporary restraining order and the preliminary injunction. Plaintiffs moved for an injunction pending appeal, which the district court denied. Based on the state's representation that Southerland would receive a seventy-two-hour pass to make arrangements for her child, the district court also denied plaintiffs' motion for injunction or stay during their efforts to obtain from this Court an injunction pending appeal.

Plaintiffs filed a motion for injunction pending appeal with this Court on November 25, 1985. A motions panel of this Court granted a forty-eight-hour stay, but denied the motion for injunction pending appeal on November 27, 1985. Later the same day, Mississippi Governor Allain granted Southerland a temporary suspension of her sentence from November 27, 1985 until February 1, 1986. Because oral argument of this case was scheduled for February 3, 1986, we issued a stay of the judgment of the district court to commence on February 1. On February 3, 1986, following oral argument of the appeal herein, we terminated the stay and affirmed the district court's denial of plaintiffs' motion for preliminary injunction.

Discussion

The decision to deny a preliminary injunction is within the district court's discretion. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985). To...

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