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Bowe v. Copeland

United States District Court, M.D. Alabama, Northern Division

June 17, 2014

JULIUS BOWE, #124 850, Plaintiff,
v.
DR. COPELAND, et al., Defendants.

RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

This case is before the court on a 42 U.S.C. ยง 1983 complaint filed by Plaintiff, a state inmate incarcerated at the Draper Correctional Facility, in which he challenges the constitutionality of medical care provided for a severe skin infection which began in April 2010. Despite receiving medical care and treatment since the onset of the infection, Plaintiff maintains that his condition has not improved over time. On May 30, 2014, Plaintiff filed a pleading which the court construed as a motion for temporary restraining order. Court Doc. No. 9. The court denied the motion and determined it was more appropriately considered a request for a preliminary injunction and a claim for permanent injunctive relief. Court Doc. No. 10. The court, therefore, construed this document to contain a motion for preliminary injunction. Upon review of this motion and the court's order denying Plaintiff's motion for temporary restraining order based on the same grounds for relief, the court concludes that the motion for preliminary injunction is due to be denied.

I. STANDARD OF REVIEW

The decision to grant or deny a preliminary injunction "is within the sound discretion of the district court...." Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). This court may grant a preliminary injunction only if Plaintiff demonstrates each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the requested injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest. Id .; McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352, 1354-55 (11th Cir. 1983). "In this Circuit, [a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the "burden of persuasion"" as to the four requisites." McDonald's, 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) (a preliminary injunction is issued only when "drastic relief" is necessary); Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975) (grant of preliminary injunction "is the exception rather than the rule, " and movant must clearly carry the burden of persuasion). The moving party's failure to demonstrate a "substantial likelihood of success on the merits" may defeat the party's claim, regardless of the party's ability to establish any of the other elements. Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994); see also Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (noting that "the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper"). "The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated.' Northeastern Fl. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fl., 896 F.2d 1283, 1284 (11th Cir. 1990)." Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001).

In denying Plaintiff's request for a temporary restraining order, this court determined that he failed to meet his burden of persuasion in establishing any of the prerequisites necessary for issuance of preliminary injunctive relief. Court Doc. No. 10 at 2. Thus, issuance of a preliminary injunction is not warranted. See Parker v. State Bd. Of Pardons and Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) ("A TRO or preliminary injunction is appropriate where the movant demonstrates that... there is a substantial likelihood of success on the merits.").

II. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Plaintiff's motion for preliminary injunction ( Doc. No. 9 ) be DENIED.

2. This case be referred back to the undersigned for additional proceedings.

It is further

ORDERED that on or before July 1, 2014, Plaintiff may file an objection to the Recommendation. Any objection must specifically identify the findings in the Recommendation to which Plaintiff objects. Frivolous, conclusive or general objections will not be considered by the District Court. Plaintiff is further advised this Recommendation is not a final order and, therefore, it is not appealable.

Failure to file a written objection to the proposed findings in the Recommendation shall bar a party from a de novo determination by the District Court of issues addressed in the Recommendation and shall bar a party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth Circuit issued prior to September 30, 1981.


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