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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANDREW ROMEO JOHNSON,

Plaintiff,

vs. Case No. 4:10cv513-MP/WCS

WARDEN PIPPEN,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, has filed an

amended civil rights complaint under 42 U.S.C. § 1983. Doc. 7. Plaintiff has named

only one Defendant: Mr. Pippen, the warden of Liberty Correctional Institution. Id.

Plaintiff complains that he is exposed to second hand smoke, that the Defendant is

aware that despite the fact that smoking is prohibited inside the buildings at the

institution, the "no smoking ban" is not enforced. Id., at 5. In a separate order entered

this day, Plaintiff has been directed to provide a copy of the amended complaint for

service on the Defendant.
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Plaintiff has also filed a motion for an injunction and restraining order. Doc. 8.

Plaintiff's states that he seeks an order which will "prevent the Department of

Corrections employees from taking any retaliatory action against Plaintiff in this civil suit

. . . and that they order applie [sic] to all employees." Id., at 1. Plaintiff wants the

injunction to remain in place as long as this case is pending. Id. Plaintiff also wants an

order which will require Department of Corrections employees from housing him in a

building "where tobacco smoke and second hand smoke is prevalent and exposure is

unavoidable." Id. In other words, Plaintiff seeks an order requiring all persons, whether

parties to this case or not, to comply with the law in the future. Plaintiff provides no

facts showing any threat of retaliation.

Under FED. R. CIV. P. 65, a preliminary injunction can only be issued when the

movant provides specific facts showing he or she is facing imminent and irreparable

injury or harm. Plaintiff's motion is insufficient on its face.

Moreover, 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 

Case No. 4:10cv513-MP/WCS
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(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).

Plaintiff has failed to meet all the prerequisites for injunctive relief because he

has not shown that there is a substantial threat of irreparable injury. Furthermore,

should Plaintiff be able to prove that Defendants acted in retaliation for Plaintiff having

filed the case at bar, Plaintiff would be able to recover damages under 42 U.S.C. §

1983. Because Plaintiff has an adequate remedy at law should his fear become reality,

there cannot be a finding of irreparable injury. The unavailability of an adequate remedy

at law is essentially a prerequisite to a finding of irreparable injury. 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). Thus, failing to issue an injunction in this case would

not constitute a "substantial threat of irreparable injury."

Case No. 4:10cv513-MP/WCS
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Recommendation

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

for injunction and restraining order, doc. 8, be DENIED, and this case be REMANDED

for further proceedings.

IN CHAMBERS at Tallahassee, Florida, on February 16, 2011.

 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. 4:10cv513-MP/WCS