Alvelo v. Mena et al

Filing 64

ORDER denying 49 Motion for Preliminary Injunction or Temporary Restraining Order. Signed by Judge John E. Steele on 12/20/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BARRY ALVELO,
Plaintiff,
vs.

Case No.

2:12-cv-534-FtM-29UAM

SAULA JR. MENA, M. REESE, R.
HOPKINS, EBONY HARVEY,
JOHN DOE,
Medical Services Director
Defendants.
___________________________________
ORDER
This matter comes before the Court upon review of Plaintiff’s
“memorandum of law in support of Plaintiff’s motion for a temporary
restraining order and preliminary injunction” (Doc. #49, Motion),
construed to be a Motion.

Plaintiff attaches exhibits to his

Motion consisting of inmate grievances and responses thereto (Doc.
#49-1).

Defendants filed a response (Doc. #50, Response) in

opposition.
Plaintiff files the instant Motion asking for the Court to
intervene because the Department of Corrections is not providing
him with the medical treatment he claims he needs for his right
shoulder.

See Motion.

Plaintiff alleges that as a result of the

alleged excessive use of force at issue in this case, he suffers
from severe pain in his right shoulder blade.

Id. at 1.

Plaintiff

claims that his sick call requests written to Defendants Harvey and
Bowden and the medical personnel at Taylor C.I. Annex have been
denying his requests.

Id. at 6.

Plaintiff requests a “temporary

restraining order and a preliminary injunction to ensure that he
receive[s] proper medical care.”

Id.

Defendants Harvey and Bowden file a response opposing the
Motion and note that they have been dismissed from this action with
prejudice.

Response at 2.

not

parties,

adverse

the

Thus, because Harvey and Bowden are
Motion

is

due

to

be

denied.

Id.

Defendants further assert that Plaintiff essentially asks the Court
to enjoin Harvey and Bowden from answering his inmate grievances
because he believes that these Administrative Officials at the
Department of Corrections directs medical personnel on how to treat
Plaintiff’s medical needs.

Id. at 3.

The issuance of a preliminary injunction is an extraordinary
and drastic remedy that should not be granted unless the movant
clearly

carries

prerequisites.
2011)(citations

its

burden

of

persuasion

on

each

of

[four]

Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.
omitted);

see

also

SunTrust

Bank

v.

Houghton

Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001), reh’g and reh’g
en banc denied, 275 F.3d 58 (11th Cir. 2001); Four Seasons Hotels
& Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th
Cir. 2003); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306
(11th Cir.

1998).

The

four

prerequisites

for

a preliminary

injunction are: (1) a substantial likelihood of succeeding on the
merits; (2) a substantial threat of irreparable injury if relief is
denied; (3) an injury that outweighs the opponent’s potential

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injury if relief is not granted; and (4) an injunction would not
harm or do a disservice to the public interest.

Bloedorn, 631 F.3d

at 1229; Four Seasons Hotels & Resorts, 320 F.3d at 1210; SunTrust
Bank, 252 F.3d at 1166; Am. Red Cross v. Palm Beach Blood Bank,
Inc., 143 F.3d 1407, 1410 (11th Cir. 1998); Gold Coast Publ’ns v.
Corrigan, 42 F.3d 1336, 1343 (11th Cir. 1994), cert. denied, 516
U.S. 931 (1995).

The burden of persuasion for each of the four

requirements is upon the movant.

Siegel v. Lepore, 234 F.3d 1163,

1176 (11th Cir. 2000)(en banc).

Under Fed. R. Civ. P. 65(b), a

temporary restraining order may be granted without notice only if
(1) “specific facts in an affidavit or a verified complaint clearly
shows that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition,” and, (2) the movant “certifies in writing any efforts
made to give notice and the reasons why it should not be required.”
Additionally, before the Court may grant a temporary restraining
order, the movant must post security “in an amount . . . to pay the
costs and damages sustained by any party found to have been
wrongfully

enjoined

or

restrained.”

Fed.

R.

Civ.

P.

65(c).

Further, under Local Rule 4.05(a), “[s]uch orders will be entered
only in emergency cases to maintain the status quo until the
requisite notice may be given and an opportunity is afforded to
opposing parties to respond to the application for a preliminary

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injunction.”1
specifically

Additionally,

the

movant

is

required

to:

describe the conduct sought to be enjoined; provide

sufficient factual detail so that the Court can determine the
appropriate amount of security which must be posted by the movant;
accompany the motion with a proposed form order; and, attach a
supporting legal memorandum.

Local Rule 4.06(b)(3).

Plaintiff fails to satisfy the prerequisites of Rule 65.

The

issues remaining in this case concern Defendants Mena and Reese
alleged excessive use of force and Defendant Hopkins failure to
provide medical treatment to Plaintiff’s serious injuries after
that

use

of

Institution.

force,

which

occurred

at

Hendry

Correctional

Plaintiff is now incarcerated at Taylor Correctional

and files the instant Motion, mentioning by name individuals who
are no longer Defendants in this action, and contends that he is
not receiving medical treatment for his shoulder.

The exhibits

Plaintiff attaches to his Motion reveal that he submits sick call
requests and is seen by medical personnel at Taylor Correctional
Institution.

See Doc. #49-1.

In a response dated August 29, 2013,

1

Under Local Rule 4.05(b)(4), “The brief or legal memorandum
submitted in support of the motion must address the following
issues: (i) the likelihood that the moving party will ultimately
prevail on the merits of the claim; (ii) the irreparable nature of
the threatened injury and the reason that notice cannot be given;
(iii) the potential harm that might be caused to the opposing
parties or others if the order is issued; and (iv) the public
interest, if any.” Local Rule 4.06(b)(1) requires that a party
applying for a preliminary injunction must also address these four
factors in a brief or legal memorandum.
-4-

Harvey wrote that Plaintiff was last seen by medical on April 17,
2013,

and

did

complaints.

not

Id.

return

for

sick

call

thereafter

with

any

The remaining inmate grievances concern the

medical co-payment Plaintiff paid.

Id.

ACCORDINGLY, it is hereby
ORDERED:
Plaintiff’s motion for a preliminary injunction or temporary
restraining order (Doc. #49) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, on this
of December, 2013.

sa: ALJ
Copies: All Parties of Record

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20th

day