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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IVAN HARVEY,

 Plaintiff,

vs. Case No: 3:09cv402/WS/MD

EFIONG O. ANDEM, et al.,

 Defendants.

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff filing a Motion for Temporary

Restraining Order and/or Preliminary Injunction (doc. 3) and supporting affidavit

(doc. 4). 

Plaintiff is an inmate of the Florida penal system currently confined at Santa

Rosa Correctional Institution (“Santa Rosa CI”). He has filed a civil rights complaint

pursuant to 42 U.S.C. § 1983 against various medical officials at Holmes Correctional

Institution, Reception and Medical Center, Union Correctional Institution and Santa

Rosa CI, claiming that since April of 2008 he has been denied adequate medical care

for “pinched and/or damaged nerves” in his back which causes severe pain. (Doc.

4, pp. 1-2). Specifically with regard to the Santa Rosa CI defendants, plaintiff claims

ARNP Nichols and Dr. Collins have denied him stronger pain medication despite his

complaints that his prescribed Naproxyn is not effective. Plaintiff further complains

that he was previously issued a medical pass allowing him to use a walking cane

whenever he was outside his cell, but ARNP Nichols modified the pass on August

11, 2009 to allow plaintiff to use the cane only when he is outside his dorm. Plaintiff

complains that because he is in segregation he cannot leave his dorm, and that as
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a result of not having use of the cane to leave his cell, he is unable to walk to the

shower or sick call within his dorm. (Docs. 3, 4). Plaintiff’s motion for preliminary

injunction seeks an order directing the Santa Rosa CI defendants to “provide

effective pain medication and to return [plaintiff’s] walking cane to him with a pass

designating its use outside of his cell, with front cuff pass.” (Doc. 3, p. 4). 

The type of relief plaintiff seeks is an extraordinary remedy. See California v.

American Stores Co., 492 U.S. 1301, 110 S.Ct. 1, 106 L.Ed.2d 616 (1989). Granting

or denying a temporary restraining order or preliminary injunction rests in the

discretion of the district court. Carillon Importers, Ltd. v. Frank Pesce Intern. Group

Ltd., 112 F.3d 1125, 1126 (11 Cir. 1997) (citing United States v. Lambert, 695 F.2d th

536, 539 (11 Cir. 1983)); Johnson v. Radford, 449 F.2d 115 (5 Cir. 1971). The th th

purpose of preliminary injunctive relief is to preserve the status quo between the

parties and to prevent irreparable injury until the merits of the lawsuit itself can be

reviewed. Devose v. Herrington, 42 F.3d 470, 471 (8 Cir. 1994); All Care Nursing,

th

887 F.2d at 1537; United States v. State of Alabama, 791 F.2d 1450, 1457 n. 9 (11 Cir. th

1986). The standard for issuing a preliminary injunction, which is the same as is

required for a temporary restraining order, is whether the movant has demonstrated

the following prerequisites: 

1. There is a substantial likelihood that the movant will prevail on the

merits;

2. There exists a substantial threat that the movant will suffer

irreparable injury if the injunction is not granted;

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

injunction will do to the defendant; and 

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

interest.

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

Cir. 2001); Siegel v. LePore, 234 F.3d 1163, 1176 (11 Cir. 2000); Johnson v. United th

Case No: 3:09cv402/WS/MD
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States Dep’t of Agric., 734 F.2d 774 (11 Cir. 1984); Canal Auth. of State of Florida th

v. Callaway, 489 F.2d 567 (5 Cir. 1974). A preliminary injunction should not be th

granted “unless the movant clearly establishes the burden of persuasion as to the

four requisites.” All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., 887 F.2d

1535, 1537 (11 Cir. 1989) (quotations omitted). th

In the instant case, the court concludes that plaintiff has failed to state a prima

facie case for preliminary injunctive relief. Plaintiff has not adequately shown any

indication of immediate, irreparable harm. He states he has been suffering with his

listed condition for quite some time and is receiving medical attention (including an

MRI, pain medication, a cane), although not to the extent he believes necessary to

completely alleviate his complaints. The motion and affidavit fall short of raising

facts justifying the court’s use of an extraordinary remedy which would necessarily

interfere with the administration of medical care for state inmates. Plaintiff’s

allegations do not indicate there is a substantial threat that he will suffer irreparable

injury if the injunction is not granted; that there is threatened injury to the plaintiff

such that such injury outweighs the potential harm the injunction may do to the

defendants; nor that the public interest will not be impaired if the injunction is

granted.

Because plaintiff has failed to meet the prerequisites for injunctive relief, his

request should be denied.

Accordingly, it is respectfully RECOMMENDED:

That plaintiff’s motion for temporary restraining order and/or preliminary

injunction (doc. 3) be DENIED.

At Pensacola, Florida, this 14 day of September, 2009.

th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 3:09cv402/WS/MD
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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. 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 (11 Cir. 1988). th

Case No: 3:09cv402/WS/MD