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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CORY T. PERRY,

Plaintiff,

vs. Case No. 3:10cv281/MCR/EMT

WALTER McNEIL, et al.,

Defendants. 

______________________________________/

REPORT AND RECOMMENDATION

Plaintiff has filed a “Motion for Inclusion of Documents to the Record for Consideration of

the Court,” which the clerk construed as a motion for temporary restraining order (Doc. 30). He

seeks an order enjoining Defendants from retaliating against him and submits several exhibits in

support of the claims asserted in this civil rights lawsuit.

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 (11th Cir. 1997) (citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983));

Johnson v. Radford, 449 F.2d 115 (5th Cir. 1971). The district court must exercise its discretion in

the 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 injunction

will do to the defendant; and 

4. The granting of the preliminary injunction will not disturb the public interest.
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CBS Broadcasting, Inc. v. Echostar Communications Corp., 265 F.3d 1193, 1200 (11th Cir. 2001);

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000); Johnson v. United States Dep’t of Agric.,

734 F.2d 774 (11th Cir. 1984); Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567 (5th Cir.

1974). “A preliminary injunction is an extraordinary and drastic remedy not to be granted unless

the movant clearly establishes the burden of persuasion as to the four requisites.” All Care Nursing

Serv. v. Bethesda Mem’l Hosp., 887 F.2d 1535, 1537 (11th Cir. 1989) (quotations omitted).

Further, the 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 (8th Cir. 1994); All Care Nursing Serv., 887 F.2d at 1537;

United States v. State of Ala., 791 F.2d 1450, 1457 n.9 (11th Cir. 1986). This necessitates that the

relief sought in the motion be closely related to the conduct complained of in the actual complaint. 

Devose, 42 F.3d at 471; Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10th Cir. 1975). Also, the

persons from whom the injunctive relief is sought must be parties to the underlying action. See In

re Infant Formula Antitrust Litig., MDL 878 v. Abbott Laboratories, 72 F.3d 842, 842–43 (11th Cir.

1995). 

In the instant motion, Plaintiff states that Defendants are threatening him and retaliating

against him for filing grievances, for example, by changing his job assignment from houseman to

food service. He additionally states they are refusing to answer the grievances that he previously

filed. As relief, he seeks an order enjoining Defendants from (1) beating, threatening, or harassing

him, (2) ordering him to perform tasks that are likely to cause injury or exacerbate his existing

injuries, and (3) confiscating his personal property and legal work.

In a separate order issued by this court on today’s date, Plaintiff was directed to submit a

third amended complaint because his second amended complaint failed to state a basis for liability

as to the named Defendants. Because it has been determined that Plaintiff’s complaint fails to state

a constitutional claim, Plaintiff has correspondingly failed to meet the prerequisites for injunctive

relief, namely, that there is a substantial likelihood he will prevail on the merits in this action. 

Therefore, the motion for a temporary restraining order should be denied.

Accordingly, it is respectfully RECOMMENDED:

Case No.: 3:10cv281/MCR/EMT
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That Plaintiff’s motion for temporary restraining order (Doc. 30) be DENIED.

At Pensacola, Florida, this 10th day of December 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all 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).

Case No.: 3:10cv281/MCR/EMT