Shirley v. Collier, et al.,

Filing 16

ORDER denying 15 Motion for Preliminary Injunction; denying 15 Motion for Temporary Restraining Order. Signed by Judge John E. Steele on 5/13/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN ROBERT SHIRLEY,
Plaintiff,
vs.
COLLIER COUNTY SHERIFF'S OFFICE,
TRINITY
SERVICES
GROUP,
INC.,
CORIZON HEALTH MANAGEMENT, COLLIER
COUNTY BOARD OF COMMISSIONERS,
KEVIN J. RAMBOSK, FNU RICHARDS, K.
MCGOWAN, FNU HOFFMAN, FNU HARMON,
FNU O'HAVER, FNU CALDERON, FNU
CRAFT, SERGEANT CRUZ, FNU MINICK,
FNU SCHANK, FNU ARCE, FNU RAY, FNU
ARNOLD, FNU BARBUTO, FNU BEHRENS,
FNU BLACKWOOD,
FNU
BLANK,
FNU
BREMER, FNU BRITOLO, FNU BROOKS,
FNU BROYOLES, FNU BRYSON, FNU BURD,
FNU CARPENTER, FNU CAUDILL, FNU
COMO, FNU COTUGNO, FNU CRAIG, FNU
CRAWFORD, T. DAVIS, FNU DELUCA, FNU
DEMANGE, FNU DEMAREST, FNU DOLL, FNU
DUARTE, FNU FUSSELL, FNU GAINY, FNU
GOGGINS, FNU GOMEZ, FNU GRANT, FNU
GUTH, FNU HALL, FNU HERRERA, FNU
HURLEY, FNU JORDEN, FNU KENNEDY, FNU
KEYSER, FNU LOPEZ, FNU KYLE, FNU
MARSH, FNU MCDUFFIE, FNU MEEK, FNU
MELENDEZ, FNU LUCENTE, FNU MULLEN,
FNU MUNOZ, FNU PFALZGRAFF, FNU
RUMLEY,
FNU
SHAFFER,
FNU
SIDLEDECKER, FNU SOLOMON, FNU TIFT,
FNU TUBB, FNU VARGAS, FNU ZERPHA,
FNU BRYANT, FNU MULCAHEY, UNKNOWN
DUTY SGT. 1-10, TOM BOWMAN, KENNY
LNU, KITTY LNU, MISS G, FRANK LNU,
RARA, MISS S, UNKNOWN #1, UNKNOWN
#2, UNKNOWN #3, MARCIA ECKLOFF, DR.
JANET,
PERCILLA
UPTON,
FNU
VALANTINE, DR. SANDRA, MARIA LNU,
ELAINE LNU, KIM LNU, SANDY LNU, MRS.
CASH, JESUS LNU, VINCE LNU, FNU
RICHARDS, MANIE LNU, FNU TRAPP, FNU
YURETTA, UNKNOWN #1, UNKNOWN #2,

Case No.

2:13-cv-16-FtM-29SPC

UNKNOWN #3, DONNA FIALA, GEORGE
HILLER, TOM HENNIRY, FRED CAYLE AND
TIM NANCE,
Defendants.
________________________________
ORDER
This matter comes before the Court upon review of Plaintiff’s
“emergency petition for preliminary injunction /temporary restraining
order” (Doc. #15), filed May 8, 2013.
Plaintiff submits that he has “serious food allergies” that
“severely limit the type of foods” he can “comfortably consume.”
Motion at 1.
poultry.

Plaintiff states that he is allergic to eggs and

Id.

Thus, Plaintiff requests that the Court entered an

order directing jail officials “to cease and desist” serving him a
litany

of

derivatives

food
of

including
eggs

inter

including

alia:

eggs,

egg

(economy

baking

powders,

products), cakes, muffins, chicken turkey.

productions,
calcium

Id. at 2.

Plaintiff also claims that he has been placed in segregation in
retaliation for filing “numerous” inmate grievances and for filing the
instant action.

Id.

Plaintiff alleges that placement in segregation

has prevented him from trading food items with other inmates to
supplement his dietary needs, which has resulted in him losing 12
pounds in one month.
At the outset, because Plaintiff titled the instant pleading an
“emergency,” the Court immediately reviewed the pleading.

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Upon

review, the Court has determined that no emergency exists.

Plaintiff

is advised that suggesting that an “emergency” exists on the title of
a pleading should be used in only extraordinary circumstances, when
there is a true and legitimate emergency.

When a pleading is labeled

as such, the Court is compelled to immediately divert its attention
from other pending matters and instead to focus on the “emergency.”
The failure to comply with the Court’s directions will result in the
imposition of sanctions.
The issuance of a preliminary injunction is an extraordinary and
drastic remedy that should not be granted unless the movant clearly
carries its burden of persuasion on each of [four] prerequisites.
Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011)(citations
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 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; American Red Cross v. Palm

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Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir. 1998); Gold
Coast Publications 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.”
65(c).

Fed. R. Civ. P.

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
injunction.”1

Additionally, the movant is required to: specifically

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
(continued...)
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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).
It is clear that Plaintiff has not complied with the requirements
of either Fed. R. Civ. P. 65(b) or Local Rule 4.05(b).

Plaintiff has

not demonstrated a threat of an immediate and irreparable injury or
loss, nor has he posted security, or explained why security should not
be

posted.

Further,

Plaintiff

has

not

established

the

four

prerequisites mandated by the Eleventh Circuit to warrant the issuance
of either a temporary restraining order or preliminary injunctive
relief.

Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032,

1034-35 (11th Cir.) (per curiam), cert. denied, 534 U.S. 1072 (2001).
Wall v. Ferrero, 142 F. App’x 405 (11th Cir. 2005).

Based upon the

foregoing, the Court finds Plaintiff is not entitled to a temporary
restraining order.
Plaintiff should follow jail procedures for setting any necessary
medical

appointments

with

the

jail’s

medical

department

for

a

determination by medical officials as to whether a medically approved
diet is appropriate.

1

To the extent that Plaintiff contends that he is

(...continued)

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.
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being held in segregation in retaliation, Plaintiff may file a civil
rights complaint form, after he has fully exhausted his available
administrative remedies.
ACCORDINGLY, it is hereby
ORDERED:
1. Plaintiff’s Motion for Emergency Preliminary Injunction (Doc.
#15) is DENIED.
2.

Plaintiff’s Motion for a Temporary Restraining Order (Doc.

#15) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, on this
May, 2013.

SA: alj
Copies: All Parties of Record

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13th

day of