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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

BENJAMIN N. MOOTS,

Plaintiff,

vs. Case No. 4:10cv98-SPM/WCS

WALTER McNEIL, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff initiated this case on March 15, 2010. Doc. 1. Plaintiff's motion for leave

to proceed in forma pauperis, doc. 2, was granted, doc. 4, and Plaintiff has now paid the

assessed initial partial filing fee. Doc. 11. Prior to review of this case, Plaintiff filed a

motion to amend his civil rights complaint, doc. 8, which was granted, doc. 10, but

review of the amended complaint was deferred until payment of the initial partial filing

fee. Also deferred was ruling on Plaintiff's motion for preliminary injunction and

temporary restraining order, doc. 5, supported by Plaintiff's affidavit, doc. 6. I have now

reviewed all of those documents.
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Plaintiff's motion is for a preliminary injunction requiring Defendants to "provide

mastectomy surgery to correct the Plaintiff's condition of gynecomastia" to prevent

Plaintiff's continued pain. Doc. 5. Plaintiff states that he is incarcerated in a men's

correctional facility and Defendants keep him "segregated in protective management"

because his condition "would potentially cause some problems in the way of unwanted

sexual advancements and probable rape." Doc. 5, p. 2. Plaintiff alleges Defendants fail

to provide corrective surgery for his "painful and embarrassing medical condition." Id.

Plaintiff indicates he will suffer physical pain and emotional distress if surgery is not

provided, and contends he is largely inactive because of the condition. Id., at 3-4. He

further claims his suffering is worse than the financial hardship Defendants would incur

if forced to provide the surgery for him. Id., at 4. Finally, Plaintiff contends that

providing him surgery is on the public interest for "public employees to fulfill their

obligations that citizens expect to be carried out." Id. 

Plaintiff's affidavit states that Plaintiff entered the Department of Corrections in

May of 1996. Doc. 6. Plaintiff states that his "male breast tissue [is] constantly growing

larger," and has "developed hardened nodules that now make up the majority of tissue." 

Id. Plaintiff states the "tissue has become more painful and tender over time, but [has]

never receive[d] any medical treatment for this." Id., at 2. Plaintiff states he would be

safer and have less problems if surgery could remove the tissue, his physical pain

would be alleviated, and his mental health would be "greatly improved." Id. Plaintiff

states he has been "refused surgery because correctional medical staff [have] labeled it

a 'cosmetic' concern." Id. 

Case No. 4:10cv98-SPM/WCS
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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 has established: 

(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).

To determine whether Plaintiff faces a substantial likelihood of success, the

amended complaint has been reviewed. Doc. 9. Plaintiff's complaint is against five

Defendants, and he complains that they have violated his rights by the policy which

bans "cosmetic procedures." Doc. 9, p. 8. The complaint is insufficient to state a claim

against Defendant Vaughn, though potentially sufficient as to the others, and I have

entered an order today requiring that the complaint be amended to drop Vaughn as a

Defendant. A preliminary injunction is not warranted where a final complaint has not yet

been filed.

Case No. 4:10cv98-SPM/WCS
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Furthermore, should Plaintiff be entitled to any relief in this case, it would be

appropriate only to grant that relief at the end of the case should Plaintiff prevail. It

would not be appropriate in this case concerning medical care to direct medical

treatment until it has been proven that Plaintiff's Eighth Amendment rights have been

violated by not providing the surgery as requested by Plaintiff. Jefferson County, 720

F.2d at 1520 (finding "[t]he possibility that adequate compensatory or other corrective

relief will be available at a later date, in the ordinary course of litigation, weighs heavily

against a claim of irreparable harm."); see Lewis v. S. S. Baune, 534 F.2d 1115, 1124

(5th Cir. 1976). 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's motion

for a preliminary injunction and temporary restraining order, doc. 5, be DENIED and this

case be REMANDED for further proceedings.

IN CHAMBERS at Tallahassee, Florida, on April 20, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv98-SPM/WCS