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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JIMMY KINSLOW,

Plaintiff,

vs. Case No. 4:10cv440-SPM/WCS

THE FLORIDA DEPARTMENT OF 

CORRECTIONS, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, filed an amended complaint and a motion

for a temporary restraining order or, in the alternative, an expedited preliminary

injunction, doc. 9, and an affidavit, doc. 10. In a separate order entered this day,

Plaintiff has been directed to submit service copies of the amended complaint, which is

deemed sufficient to state a claim. This report and recommendation concerns the

motion for a temporary restraining order or expedited preliminary injunction.

Plaintiff’s claims concern his inability to freely practice his religious beliefs. 

Plaintiff is a follower of a traditional Native American religion. Plaintiff seeks to be in

possession of a personal Sacred Pipe, to lead and conduct the Sacred Pipe Ceremony
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unassisted or supervised, to participate in the Smudging ceremony, and to be provided

a sweat lodge to conduct his religious activities. Doc. 9. 

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).

In this case, it cannot be said that Plaintiff faces a “substantial likelihood of

success on the merits.” In this Circuit, several Native American religion cases have

resulted in rulings against Plaintiff’s claims. See Brunskill v. Boyd, 141 Fed.Appx. 771,

2005 WL 1208632 (11th Cir. 2005) (affirming decision from this Court granting summary

judgment in favor of the Department of Corrections on Native American prisoner’s

claims challenging hair length policy, and denial of certain religious materials); Smith v.

Case No. 4:10cv440-SPM/WCS
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McDonough, 2007 WL 1796264, 4 (M.D.Fla. 2007) (upholding hair length restriction in

challenge by Rastafarian inmate as least restrictive means) (citing Hamilton v. Schriro,

74 F.3d 1545, 1554-55 (8th Cir.1996) (finding prison hair length rule applicable to Native

American, for similar reasons); Phipps v. Parker, 879 F.Supp. 734 (W.D.Ky.1995)

(finding prison hair length rule applicable to orthodox Hasidic Jew, for similar reasons);

see also Martinelli v. Dugger, 817 F.2d 1499, 1506 (11th Cir. 1987) (“A similar

conclusion is required as to the hair length rules because they serve the same interests

as the no beard rule.”), cert. denied, 484 U.S. 1012 (1988); Harris v. Chapman, 97 F.3d

499, 503 (11th Cir. 1996), cert. denied, 520 U.S. 1257 (1997); Maimon v. Wainwright,

792 F.2d 133 (11th Cir. 1986). In light of these cases, it cannot be said that Plaintiff has

a substantial likelihood of success. This case may provide the occasion to re-evaluate

the policies and rules in light of changed circumstances, different evidence presented,

and the like. I do not infer that Plaintiff’s claims cannot succeed, only that a substantial

chance of success is not present.

Because Plaintiff has not met all four prerequisites for injunctive relief, the instant

motion must be denied. Plaintiff has not demonstrated a substantial likelihood of

success on the merits. 

Case No. 4:10cv440-SPM/WCS
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RECOMMENDATION

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

for a temporary restraining order or in the alternative, an expedited preliminary

injunction, doc. 9, be DENIED and this case REMANDED for further proceedings.

IN CHAMBERS at Tallahassee, Florida, on December 6, 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. 4:10cv440-SPM/WCS