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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

NOEL K. BANGO,

Plaintiff,

vs. Case No. 3:03cv576/MCR/EMT

JAMES V. CROSBY, 

Defendants.

___________________________________/

REPORT AND RECOMMENDATION

Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 (Doc.

1). Leave to proceed in forma pauperis has been granted (Doc. 9). On October 19, 2005, the

undersigned filed a Report and Recommendation recommending dismissal of Plaintiff’s third

amended complaint (Doc. 72) for failure to state a claim upon which relief may be granted (see Doc.

79). However, the Report and Recommendation failed to address Plaintiff’s Motion for Preliminary

Injunction, in which Plaintiff seeks transfer to another correctional facility and an “ex parte” hearing

with the Court to address issues raised in his complaint (Doc. 78).

The grant or denial of preliminary injunctive relief rests in 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)). The district court, however,

must exercise its discretion in light of whether:

1. There is a substantial likelihood that plaintiff will prevail on the merits;

2. There exists a substantial threat that plaintiff will suffer irreparable injury if

the injunction is not granted;

3. The threatened injury to plaintiff outweighs the threatened harm the

injunction will do to the defendant; and

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Case No: 3:03cv576/MCR/EMT

4. The granting of the preliminary injunction will not disserve the public

interest.

See CBS Broadcasting, Inc. v. Echostar Communications Corp., 265 F.3d 1193, 1200 (11th Cir.

2001) (citing Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (citing cases)). “A

preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant

clearly establishes the ‘burden of persuasion’ as to all four elements.” CBS Broadcasting, Inc., 265

F.3d at 1200 (citation omitted). Injunctions should be granted for definite, future injuries, not

conjectural ones. Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994). 

For the reasons outlined in this Court’s Report and Recommendation recommending

dismissal of Plaintiff’s complaint (Doc. 79), the undersigned concludes that Plaintiff’s complaint

fails to present an actionable claim. Thus, Plaintiff fails to meet a prerequisite for injunctive relief,

namely, a substantial likelihood of success on the merits. Therefore, the motion for a preliminary

injunction should be denied. 

Accordingly, it is respectfully RECOMMENDED that Plaintiff’s Motion for Preliminary

Injunction (Doc. 78) be DENIED.

At Pensacola, Florida this 21st day of October 2005.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed recommendations must be filed within ten days after

being served a copy hereof. A copy of any objections shall be served upon any other parties.

Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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