Macleod v. Wadsworth

Filing 10

ORDER denying 2 Motion for Temporary Restraining Order. Signed by Judge Marcia Morales Howard on 8/27/2014.(KAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT CRAIG MACLEOD,
Plaintiff,
vs.

Case No. 3:14-cv-1018-J-34MCR

GAIL WADSWORTH, in her official
capacity as Court Clerk and Comptroller
of Flagler County, Florida,
Defendant.
_______________________________________
ORDER
The case is before the Court on pro se Plaintiff’s Motion for Temporary Restraining
Order (Doc. 2; Motion), filed on August 26, 2014. Plaintiff apparently was the defendant in
a state court foreclosure proceeding, in which the state court held a nonjury trial, despite
Plaintiff’s demand for a trial by jury on his counter-claim under 42 U.S.C. § 1983. See
Verified Complaint and Incorporated Sworn Affidavit at 3 (Doc. 1; Complaint). According to
Plaintiff, the state court judge entered final judgment on July 25, 2014, and has ordered a
foreclosure sale to take place on September 3, 2014. Id. Plaintiff alleges that Defendant Gail
Wadsworth, Clerk of the Circuit Court for Flagler County, Florida, has deprived him due
process under the Fourteenth Amendment of the United States Constitution in refusing to file
Plaintiff’s § 1983 action “for protection from a nonjury trial” in the state court proceeding. See
Complaint at 4; see also Motion. As such, Plaintiff seeks an injunction to prevent the

foreclosure sale of his residence. See Motion. Upon review of the Motion and Complaint,
the Court determines that Plaintiff’s Motion is due to be denied.1
Rule 65, Federal Rules of Civil Procedure (Rule(s)), as well as Local Rule 4.05, United
States District Court, Middle District of Florida (Local Rule(s)), govern the entry of a
temporary restraining order. Rule 65(b)(1) provides:
The court may issue a temporary restraining order without
written or oral notice to the adverse party or its attorney only if:
(A)

specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or
damages will result to the movant before the adverse
party can be heard in opposition; and

(B)

the movant's attorney certifies in writing any efforts made
to give notice and the reasons why it should not be
required.

Likewise, Local Rule 4.05(b)(2) requires that the motion be accompanied by affidavits or a
verified complaint establishing the threat of irreparable injury as well as showing “that such
injury is so imminent that notice and a hearing on the application for preliminary injunction
is impractical if not impossible.” In addition, Local Rule 4.05(b)(3) directs that the "motion
should also . . . describe precisely the conduct sought to be enjoined." Moreover, Local Rule
4.05(b)(4) provides that the legal memorandum in support of the motion must address four

1

The undersigned finds a hearing on the Motion is unnecessary, and, as set forth in Rule
4.05(b), Local Rules, United States District Court, Middle District of Florida (Local Rule(s)), it can be
resolved based on the papers submitted. See Local Rule 4.05(b) (“Due to previously scheduled business
it will not ordinarily be possible for the Court to interrupt its daily calendar in order to conduct a hearing
or entertain oral presentation and argument incident to an application for a temporary restraining order.
The Court’s decision, of necessity, will usually be made solely on the basis of the complaint and other
supporting papers submitted pursuant to this rule.”)

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specific factors, including the likelihood of success, the threatened irreparable injury, potential
harm to the opposing parties, and the public interest.
Plaintiff has failed to show that he has a substantial likelihood of succeeding on the
merits of his claims. Plaintiff’s Complaint and Motion seek this Court’s interference in state
court litigation that is either completed or ongoing. As has been explained to Plaintiff in his
previous attempts to seek relief in this Court, under either the Rooker-Feldman2 doctrine, or
the Younger3 abstention doctrine, this Court has no jurisdiction to interfere with state court
final judgments or ongoing state court proceedings. See Macleod v. State of Florida, Case
No. 3:13-cv-606-J-34JBT, Order Denying Plaintiff’s Motion for Temporary Restraining Order,
Doc. 10.
Additionally, Plaintiff has failed to demonstrate that he is substantially likely to succeed
on the merits of his § 1983 claim. Plaintiff appears to allege that because he was denied a
jury trial in the state court proceeding, the foreclosure sale is a denial of due process.
Significantly, “[t]he Seventh Amendment right to trial by jury in a civil case has not been
incorporated against the states.” Phelan v. Norville, 460 F. App’x 376, 380 (5th Cir. 2012).
As such, “a jury trial in a state civil case is not a right secured by the Constitution, so it cannot
provide a basis for a § 1983 claim.” Id. at 380-81. Indeed, this Court has previously
explained to Plaintiff that his “right to a trial by jury under Florida law is a matter for him to
pursue in state court, not here.” Macleod v. Scott, Case No. 3:14-cv-753-J-32JBT, Order
Denying Motions, Doc. 10. As such, the Court finds that Plaintiff’s Motion is due to be
2

See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and Dist. of Columbia Court of Appeals
v. Feldman, 460 U.S. 462 (1983).
3

See Younger v. Harris, 401 U.S. 37 (1971).
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denied. See McMahon v. Cleveland Clinic Found. Police Dep’t, 455 F. App’x 874, 878 (11th
Cir. 2011). In light of the foregoing, it is hereby
ORDERED:
Plaintiff’s Motion for Temporary Restraining Order (Doc. 2) is DENIED.
DONE AND ORDERED in Jacksonville, Florida, this 27th day of August, 2014.

Copies to:
Counsel of Record
Unrepresented Party

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