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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KELVIN FRAZIER,

Plaintiff,

vs. Case No. 4:11cv98-SPM/WCS

EDWIN BUSS, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, doc. 9, has filed his

first amended complaint, doc. 12, along with a motion for a preliminary injunction, doc.

13, and a memorandum in support of the motion. Doc. 14. The motion for a preliminary

injunction, doc. 13, seeks a court order to transfer him to another prison. 

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; 

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(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).

After review of Plaintiff's amended complaint, doc. 12, I entered an order

requiring Plaintiff to file a second amended complaint because of several deficiencies. 

Because Plaintiff's amended complaint has been found insufficient to properly state a

claim and Plaintiff has been required to submit an amended complaint, Plaintiff has

correspondingly failed to meet the prerequisites for injunctive relief. Therefore, the

instant motion must be denied as Plaintiff has not demonstrated a substantial likelihood

of success on the merits.

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 fears

and threats 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

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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."

Moreover, well established law provides that prisoners have no constitutional

right to remain in, or be transferred to, a particular institution with particular rules,

regulations and privileges. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed.

2d 451 (1976); Montayne v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466

(1976); Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983). 

Because prisoners do not have the right to remain incarcerated within a particular

geographic area or at a particular prison, Plaintiff has no legal right to a court order

directing his transfer. Should Plaintiff be able to articulate specific facts indicating he

faces a risk of physical harm from a prison official, he does have the right to request

being placed in protective custody. 

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

for a preliminary injunction, doc. 13, be DENIED and this case be REMANDED for

further proceedings.

IN CHAMBERS at Tallahassee, Florida, on May 2, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

Case No. 4:11cv98-SPM/WCS

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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. 4:11cv98-SPM/WCS

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