Carpenter v. Horta

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DAVID CARPENTER, Plaintiff, ve. Case No. 8:19-cv-1081-T-0Z2AAS RAZZA HORTA, Correctional Officer, et al., Defendants. ORDER This cause comes before the Court on a document filed by Plaintiff David Carpenter titled “A Temporary Restraining Order” (Doc. 15), which the Court construes as a motion for temporary restraining order. The Federal Rules of Civil Procedure provide that: [t]he 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 damage 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. Fed. R. Civ. P. 65(b)(1). Ultimately, the issuance of a temporary restraining order or preliminary injunction is an extraordinary remedy, and a party seeking imposition of a temporary restraining order must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Siebert v. Allen, 506 F.3d 1047, 1049 (11th Cir. 2007) (citing Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-27 (11th Cir. 2005)); Suntrust Bank v. Houghton Mifflin Co., 252 F. 3d 1165 , 1166 (11th Cir. 2001); Cheng Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1186 (N.D. Ala. 2011) (citing Sampson v. Murray, 415 U.S. 61 (1974)). The Local Rules of the United States District Court for the Middle District of Florida further require a motion for temporary restraining order to: (i) describe precisely the conduct sought to be enjoined; (ii) set forth facts on which the Court can make a reasoned determination as to the amount of security which must be posted pursuant to Rule 65(c), Fed.R.Civ.P.; (iii) be accompanied by a proposed form of temporary restraining order prepared in strict accordance with the several requirements contained in Rule 65(b) and (qd), Fed.R.Civ.P.; and (iv) should contain or be accompanied by a supporting legal memorandum or brief. Local Rule 4.05(b)(3), M.D. Fla. Additionally, the brief or legal memorandum accompanying the motion must address: (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 4.05(b)(4), M.D. Fla. Plaintiff's construed motion contains merely the following language in the form of a proposed temporary restraining order addressed to Defendant Department of Corrections: It is further ordered that[,] effective immediately[,] and pending the hearing and determination of this order to show cause[,] the Defendant Department of Corrections and each of their officers[,] agents[,] employers[,] employees[,] and all persons acting in concert or participation with them are restrained from harrassment [sic][,] destruction of legal mail, legal cases, personell [sic] property, photographs[,] and personell [sic] mail, visits[,] harassment [sic], phone privileges[,] and canteen privileges, emails, kiosk, tablet, safety concerns on general compound, medical treatments[.] It is further order[ed] that the order to show [cause] and all other papers attached to this application be served on the aforesaid Plaintiffs [sic] by Date 10/8/19[.] (Doc. 15). The construed motion fails to provide a memorandum of any kind or any argument addressing the prerequisites to temporary or preliminary injunctive relief. Accordingly, Plaintiff has failed to demonstrate that immediate and irreparable injury, loss, or damage will result to him before the Defendant Department of Corrections can be heard in opposition. See Fed. R. Civ. P. 65(b)(1). Accordingly, it is ORDERED that Plaintiff's construed motion for temporary restraining order (Doc. 15) is DENIED. DONE AND ORDERED in Tampa, Florida, this Lifaay of October, 2019. WILLIAM F. oe UNITED STATES DISTRICT JUDGE