UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23438-BLOOM/McAliley

ANDY R. FONTAINE, 

Plaintiff,

v.

SEC’Y, MARK INCH, 

FLORIDA DEP’T. OF CORR., et al., 

Defendants.

/

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

AND TEMPORARY RESTRAINING ORDER

THIS CAUSE is before the Court upon a pro se Plaintiff Andy R. Fontaine’s Motion for 

Preliminary Injunction and Temporary Restraining Order, ECF No. [57] (“Motion”). Defendants 

Dr. Dora Gaxiola and Dr. Franck Papillion (“Doctor Defendants”) filed a Response in Opposition, 

ECF No. [60] (“Response”). The Court has reviewed the Motion, the record in this case, the 

applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is 

denied.

In his Complaint, Plaintiff asserts claims of deliberate indifference arising from 

substandard medical care and excessive force inflicted upon him while confined at Dade 

Correctional Institution. Since the initial filing of this case, Plaintiff has been transferred to the 

Columbia Correctional Institution-Annex (“CCI”). ECF No. [13]. In the present Motion, Plaintiff 

alleges that although his wheelchair pass was renewed for the year, medical providers at CCI 

conducted an assessment to see if he still required the use of a wheelchair. ECF No. [57] at 1-3. 

Over the course of several appointments with different CCI medical providers, clinical staff 

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reviewed his “6 volumes” of medical records, including MRIs, X-rays, and post-surgical notes. Id.

at 2-3. Plaintiff was then informed by an unnamed ARNP that she was recommending the removal 

of his wheelchair pass because “his spinal injuries do not justify it.” Id. at 3. The ARNP also told 

Plaintiff that the recommendation was being made because he “decided to file suit cause you got 

rights so [central] office wants your pass.” Id. at 3 (alteration added).

The Eleventh Circuit has explained that the four factors to be considered in determining

whether to grant a temporary restraining order or a preliminary injunction are the same. Schiavo

ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225 (11th Cir. 2005). Namely, a movant must

establish “(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.”

Id. at 1225-26 (citing Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995); Siegel v. LePore, 234

F.3d 1163, 1176 (11th Cir. 2000)). “The primary difference between the entry of a temporary

restraining order and a preliminary injunction is that a temporary restraining order may be entered

before the defendant has an adequate opportunity to respond, even if notice has been provided.”

Textron Fin. Corp. v. Unique Marine, Inc., No. 08-10082-CIV, 2008 WL 4716965, at *5 (S.D.

Fla. Oct. 22, 2008).

It should further be noted that the persons from whom the injunctive relief is sought are

typically limited to parties to the underlying action. See In re Infant Formula Antitrust Litig., MDL 

878 v. Abbott Labs., 72 F.3d 842, 842-42 (11th Cir. 1995); see Fed. R. Civ. P. 65(d) (stating that 

a preliminary injunction or temporary restraining order is binding on “(A) the parties; (B) the 

parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in 

active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)”).

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Construing this Motion liberally as afforded pro se litigants, Haines v. Kerner, 404 U.S. 

519, 520 (1972), Plaintiff seeks a permanent injunction against every “employee, contractor, 

medical provider, nurse of FDC Inch and Centurion” and “any security at Columbia CI Annex or 

whichever institution Plaintiff is at throughout the duration of this proceeding[.]” Id. at 4. Plaintiff

seeks an injunction to prevent the removal of, or to restore to him, his wheelchair pass, gloves, and 

cushion. Id. He also seeks an injunction to prevent future disciplinary action taken against him for 

disobeying orders to “stand, walk, or similar unachievable thing.” Id. Plaintiff names several nonparty individuals employed as medical staff at CCI but does not name the Doctor Defendants or 

the John Doe Defendants involved in the underlying action. Plaintiff also alleges that the future 

removal of his wheelchair pass violates the Americans with Disabilities Act and is in retaliation 

for filing this action in violation of his First Amendment rights. Id. at 5.

Plaintiff’s Motion improperly seeks relief that is based on different alleged constitutional 

and statutory violations than those raised in and sought in his Second Amended Complaint. See 

Bruce v. Reese, 431 F. App’x 805, 806 n.1 (11th Cir. 2011) (per curiam) (affirming a district 

court’s denial of injunctive relief that was “outside the scope of the underlying suit” (citation 

omitted)); Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134 (11th Cir. 2005) (“To 

secure preliminary injunctive relief, a petitioner must demonstrate a substantial likelihood of 

prevailing on at least one of the causes of actions he has asserted.”); Kaimowitz v. Orlando, 122 

F.3d 41, 43 (11th Cir. 1997) (per curiam) (“A preliminary injunction is always appropriate to grant 

intermediate relief of the same character as that which may be granted finally. A district court 

should not issue an injunction when the injunction in question is not of the same character and 

deals with a matter lying wholly outside the issues in the suit.” (citations omitted)); Gomez v. 

United States, 899 F.2d 1124, 1127 (11th Cir. 1990) (“Litigants are not entitled to greater 

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temporary remedies pending litigation than they would be entitled to as the ultimate prevailing 

party.”); Cendan v. Trujillo, No. 16-21775-CV, 2017 WL 11422141, *1 (S.D. Fla. July 28, 2017) 

(explaining that “the injunctive relief sought must be closely related to the conduct raised in the 

complaint” (citations omitted)), report and recommendation adopted, 2018 WL 9540027 (S.D. 

Fla. Jan. 17, 2018). If Plaintiff seeks a remedy for the claims he raises, he should name the proper 

parties in a separate § 1983 action subject to separate case numbers and filing fees.

Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s Motion for 

Preliminary Injunction and Temporary Restraining Order, ECF No. [57], is DENIED without 

prejudice.

DONE AND ORDERED in Chambers at Miami, Florida, on July 20, 2021.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Andy R. Fontaine, Pro Se

#148904

Columbia Correctional Institution-Annex

Inmate Mail/Parcels

216 S.E. Corrections Way

Lake City, FL 32025-2013

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