Shabazz v. Secretary, Department of Corrections et al

Filing 71

ORDER denying as moot 32 Motion for Modification or Clarification of Order Granting Temporary Restraining Order; denying 56 Motion for Preliminary Injunction and Permanent Injunction. Plaintiff shall file a notice within 14 days and clarify whether he seeks to enjoin defendants from enforcing the half-inch grooming policy. Signed by Judge John E. Steele on 3/12/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABDUL HAKEEN JAHMAL NASEER
SHABAZZ aka Owen D. Denson,
Jr.,
Plaintiff,
v.

Case No:

2:17-cv-648-FtM-29CM

SECRETARY, DEPARTMENT
OF
CORRECTIONS,
Official
capacity,
J.
SANCHEZ,
Captain,
Individual
capacity,
L.
NORWOOD,
Assistant Warden, Official
capacity, PATRICK MURPHY,
Warden, Official capacity,
and W. MILLETTE,
Defendants.
ORDER
This matter comes before the Court on Defendants' Motion for
Modification

or

Restraining

Order

Plaintiff

filed

Modification

or

Clarification
(Doc.
an

#32)

Objection

Clarification

of

Order

filed
to
of

on

Granting
November

Defendants’
Order

Temporary
22,

Motion

Granting

2017.
for

Temporary

Restraining Order (Doc. #40) and exhibit in support (Doc. 40-1) on
December 4, 2017.
By way of background, this case was originally filed in the
Tampa Division and transferred to this Court (Doc. #31) on November
21, 2017.

On November 17, 2017, prior to transfer, the Court

issued a Temporary Restraining Order (Doc. #17) which directed
that the Defendants “shall not require Plaintiff to shave his
beard” and “shall not impose discipline on Plaintiff for violation
of the Defendant’s grooming policy while this Restraining Order
remains in effect.”
“[t]he

Temporary

Id. at 5.

According to the Order of Transfer,

Restraining

Order

remains

in

effect

dissolved by the district judge or by effect of law.”
1.

until

Doc. 31 at

Rule 65 provides that a temporary retraining order “expires

at the time after entry—not to exceed 14 days—that the court sets,
unless before that time the court, for good cause, extends it for
a like period or the adverse party consents to a longer extension.”
Fed. R. Civ. P. 65(b)(2).

Here, the Court did not extend the

Temporary Restraining Order and Defendants did not consent to a
longer extension.
2017

Temporary

issuance.

Thus, by operation of law, the November 17,

Restraining

Order

expired

14

days

after

its

Clements Wire & Mfg. Co. v. N. L. R. B., 589 F.2d 894,

896 (5th Cir. 1979); see also Levine v. Comcoa Ltd., 70 F.3d 1191,
1194

(11th

Cir.

1995)(Hill,

C.J.,

concurring)(“An

ex

parte

temporary restraining order is an extreme remedy to be used only
with the utmost caution.

Rule 65(b) of the Federal Rules of Civil

Procedure imposes strict restrictions on its scope and specific
time constraints for its duration.”).

Consequently, because the

Temporary Restraining Order has expired, Defendants’ Motion is
moot.

- 2 -

The Court, in considering whether Plaintiff is entitled to a
preliminary injunction at this stage of the proceedings, notes
that Defendants filed a Response in Opposition to Plaintiff’s
Motion for Preliminary Injunction (Doc. #39), with supporting
exhibits (Doc. #39-1 through #39-6) on December 1, 2017, to which
Plaintiff

filed

a

Second

Objection

and

Opposition (Doc. #50) on December 20, 2017.

Memorandum

of

Law

in

Defendants, in their

Response, note that the FDOC has a grooming policy that permits
inmates to have a half-inch beard.

Doc. 39 at 3.

In pertinent

part, the Florida Administrative Code provides:
All inmates shall elect either to be clean shaven or to
grow and maintain a half-inch beard. Such a beard shall
include all the hair that grows naturally on the face
and front of the neck, excluding eyebrows and eyelashes.
. . . Those male inmates who desire to remain clean
shaven shall be clipper shaved three times per week, and
those inmates who desire to grow a half-inch beard shall
have their beards trimmed three times per week with a
clipper with a half-inch guard.
Fla. Admin. Code, Ch. 33-602.101 Care of Inmates (4)-(5).

The

grooming policy also is set forth in the DeSoto Correctional
Institution Inmate Handbook that is distributed to all inmates.
Doc. #39-2 at 4, Doc. #39-3 at ¶6.

Defendants submit that the

FDOC’s grooming policy complies with the Supreme Court’s decision
in Holt v. Hobbs, ___U.S. ___, 135 S. Ct. 853, 862 (Jan. 20, 2015).
From a review of Plaintiff’s Motion (Doc. #16) and Plaintiff’s
Second Objection (Doc. #50), it is unclear whether Plaintiff
contends that the FDOC current grooming policy that permits a one-

- 3 -

half

inch

beard

violates

his

First

Amendment

rights

and

the

Religious Freedom Restoration Act of 1993 (“RFRA”) and Religious
and Use and Institutionalized Persons Act (“RLUIPA”) Act, or
whether he claims that the FDOC nonetheless enforces a policy of
mandating that all inmates be “bald shaved,” which the Court
interprets to mean that inmates are not permitted to have any
growth of hair on their faces.

Consequently, before ruling on

Plaintiff’s Motion for Preliminary Injunction, the Court will
direct Plaintiff to clarify which Defendants’ policy or actions he
seeks to enjoin.
Also pending before the Court is Plaintiff’s Emergency Motion
for Preliminary Injunction and Permanent Injunction (Doc. #56)
filed on January 16, 2018, to which Defendants filed a Response in
Opposition (Doc. #60) on January 30, 2018.

Plaintiff states that

on January 8, 2018, 1 he was moved from his dorm due to a water leak
and told to store his legal papers in a locker.

Doc. 60 at 5.

Plaintiff claims that his legal documents stored in his locker
were confiscated by Officer Backer when he went to the law library
on January 9, 2018.

Id.

Plaintiff admits he was provided with a

confiscation slip by Officer Backer.

Id.

Plaintiff further

claims that, on the same date, Defendant Sanchez came into his
living quarters and placed his right foot on top of the locker

1

5-6.

The Motion states the events happened in 2017. Motion at
The Court believes this to be a scrivener’s error.

- 4 -

containing

Plaintiff’s

legal

documents

inspecting Plaintiff’s cell. Id. at 6.

“under

pretense”

of

Plaintiff claims these

acts were done in retaliation for Plaintiff having filed this
action and in contempt of the Temporary Restraining Order.

Id.

The Court having reviewed the Motion finds no emergency, and
cautions

Plaintiff

that

he

may

be

sanctioned

labeling a motion as an emergency in the future.
3.01(e).

for

improperly

M.D. Fla. R.

Although labeled as seeking a “preliminary and permanent

injunction,” the Motion does not address any of the four factors
required to obtain a preliminary injunction 2 and otherwise does
not contain a request for relief.

Id.

Further, to the extent

that Plaintiff contends that the actions violated the Temporary
Restraining Order, as noted above, the Temporary Restraining Order
is expired.
Accordingly, it is hereby
ORDERED:

2

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 v. Grube, 631 F.3d
1218, 1229 (11th Cir. 2011); Burk v. Augusta-Richmond Cnty., 365
F.3d 1247, 1262-63 (11th Cir. 2004). The movant bears the burden
of
persuasion
for
each
of
these
four
requirements.
GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318,
1322 (11th Cir. 2015); Siegel v. Lepore, 234 F.3d 1163, 1176 (11th
Cir. 2000)(en banc).

- 5 -

1. Defendants' Motion for Modification or Clarification of Order
Granting Temporary Restraining Order (Doc. #32) is DENIED as
moot.
2. Plaintiff shall file a notice to the Court within fourteen
(14) days of this Order and clarify whether he seeks to enjoin
Defendants from enforcing FDOC’ half-inch grooming policy
that permits inmates to grow a half-inch beard.
3. Plaintiff’s Emergency Motion for Preliminary Injunction and
Permanent Injunction (Doc. #56) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2018.

SA:

FTMP-1

Copies:
Pro Se Plaintiff
Counsel of Record

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12th

day