DAVIS v. FLORIDA DEPARTMENT OF CORRECTIONS et al

Filing 39

ORDER denying 38 Motion For Emergency Intervention signed by MAGISTRATE JUDGE GARY R JONES on 1/27/11. (tss)

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JIMMY EARL DAVIS,
Plaintiff,
v.

CASE NO. 1:10-cv-00029-MP-GRJ

FLORIDA DEPARTMENT OF
CORRECTIONS, et al,
Defendants.
_____________________________/
ORDER
This case is before the Court on Doc. 38, Plaintiff’s “Motion for Emergency
Intervention,” which the Court construes as a motion for a preliminary injunction.
Plaintiff complains that his cell was searched twice in July and twice in August but none
of the nearby cells were also searched and that he was moved from one dormitory to
another. He filed an informal grievance about these issues that was logged on August
15, 2011. Plaintiff alleges that on August 16, he was subject to another search of his
cell and told by Sergeant Jordan “to get rid of most of his legalwork from his locker
because it was a fire hazard.” Plaintiff alleges that Sergeant Jordan then took him to
the sallyport and told him “You keep writin’, we’re gonna keep f–kin’ with you, and we’re
gonna win, you understand what I’m sayin’?” On August 17, Plaintiff filed a formal
grievance against Sergeant Jordan and Captain Gray, who allegedly witnessed the
“shakedown” of Plaintiff’s cell. (Doc. 38.)
Plaintiff alleges that without the intervention of this Court, he “will eventually
come to serious physical harm, or even death, at the hands of staff, or one of staff’s

Page 2 of 4

many inmate thugs.” Plaintiff states that three inmates recently told him that he needed
to be careful about writing grievances or he might be assaulted or killed. Plaintiff does
not specify the relief he seeks other than “intervention” from this Court. (Doc. 38.)
Granting or denying a preliminary injunction is a decision within the discretion of
the district court. Carillon Importers, Ltd. v. Frank Pesce Intern. Group Ltd., 112 F.3d
1125, 1126 (11th Cir. 1997), citing United States v. Lambert, 695 F.2d 536, 539 (11th
Cir. 1983). Guiding this discretion is the required finding that plaintiff establish:
(1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury if the injunction were not granted;
(3) that the threatened injury to the plaintiffs outweighs the harm an
injunction may cause the defendant; and
(4) that granting the injunction would not disserve the public interest.
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000); Carillon Importers, Ltd., 112
F.3d at 1126; United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983).
A preliminary injunction is an extraordinary and drastic remedy and should not be
granted unless the movant "clearly carries the burden of persuasion" of all four
prerequisites, which is always upon the plaintiff. Jefferson County, 720 F.2d at 1519,
citing Canal Auth. v. Callaway, 489 F.2d 567 (5th Cir. 1974).
Plaintiff complains of having his cell searched, being moved to another
dormitory, and allegedly being threatened by Sergeant Jordan. Though Plaintiff
complains that he is in fear of being physically harmed in retaliation for writing
grievances, he does not allege substantial facts to support his subjective fear of harm.
Based on the facts alleged in Plaintiff’s motion, he fails to carry his burden of
Case No: 1:10-cv-00029-MP -GRJ

Page 3 of 4

persuasion on any of the four factors warranting injunctive relief. Plaintiff’s allegations
about cell searches in dormitory moves and an isolated, vague threat are not sufficient
to invoke the drastic remedy of a preliminary injunction, especially where Plaintiff asks
the Court to prevent correctional officials from performing activities that are sometimes
necessary to maintain order in the prison environment–searching cells and moving
Plaintiffs to different dormitories. To the extent Plaintiff challenges the cell searches,
dormitory move, or alleged threats on constitutional grounds, those issues are not
before the Court in the instant case. Also, it appears the matter is currently being
investigated by the Department of Corrections pursuant to the grievance process.
Furthermore, to the extent Plaintiff asks the Court to bind non-parties to an order
issued by this Court, his motion is flawed. The Defendants in this case are Captain
Hassett; Sergeant Martin; correctional officers May, Cochran, Reyes ,Serpas, and
Thurman; and Dr. Norma Gilo. (Doc. 36). Plaintiff does not name any of these persons
as specifically engaging in the activities he alleges warrant a preliminary injunction.
Rule 65(d), which governs motions for a preliminary injunction, provides inter alia:
"Every order granting an injunction and every restraining order . . . is binding only upon
the parties to the action, their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them who receive actual
notice of the order by personal service or otherwise." FED . R. CIV. P. 65(d). "It is
elementary that one is not bound by a judgment in personam resulting from litigation in
which he is not designated as a party or to which he has not been made a party by
service of process." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110,
89 S. Ct. 1562, 1569, 23 L. Ed. 2d 129 (1969) (citation omitted). This Court must have
Case No: 1:10-cv-00029-MP -GRJ

Page 4 of 4

jurisdiction over a party to adjudicate a claim. Therefore, the parties identified in the
motion would not be bound by an order issued by this Court.
Accordingly, it is ORDERED:
That Plaintiff’s motion for emergency intervention, Doc. 38, is DENIED.
DONE AND ORDERED this 27th day of September 2011.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 1:10-cv-00029-MP -GRJ