The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
L. YVONNE BROWN,
Plaintiff,
v. Case No.: 2:18-cv-714-FtM-38MRM
FLORIDA GULF COAST
UNIVERSITY BOARD OF
TRUSTEES, KEN KAVANAGH,
KARL SMESKO, RODERICK
ROLLE, KELLY BROCK and
JESSICA HOMER,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on pro se Plaintiff’s Motion for Temporary
Restraining Order (Doc. 27) and Plaintiff’s Declaration (Doc. 28) filed on August 15, 2019.
For the reasons below, Plaintiff’s request for an ex parte temporary restraining order is
denied and the Court takes the request for a preliminary injunction under advisement
pending formal service of the Complaint and a response from Defendants.
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some other site does not affect the opinion of the Court.
Background
On October 26, 2018, Plaintiff L. Yvonne Brown filed a nine-count Complaint (Doc.
1) alleging that Defendants violated Title IX2 by dismissing her from Florida Gulf Coast
University’s (FGCU) women’s basketball team based on academic ineligibility without due
process.3 The remaining eight claims are all state law claims. Brown seeks a temporary
restraining order to prevent the continued enforcement of an April 29, 2019 disciplinary
sanction imposed upon her by FGCU that is precluding her from registering for Fall 2019
semester classes set to begin August 19, 2019. Brown believes that the disciplinary
sanction imposed by FGCU (without a hearing) constitute ongoing retaliation for Brown’s
complaints of Title IX violations.
This is not Brown’s first pro se suit surrounding her unconstitutional dismissal from
FGCU’s basketball team. Brown litigated a case against the same Defendants as here
for the past year and a half. See Brown v. Florida Gulf Coast University, et al., Case 2:18-
cv-157-JES-MRM (“Brown I”). That case was filed on March 9, 2018, and after two
iterations of the Complaint and the denial of seven applications for temporary restraining
orders (some emergency), the Court dismissed that case on the merits but allowed
Plaintiff a final opportunity to amend. She failed to do so, and judgment was entered.
Standard
To obtain a temporary restraining order, a party must first establish that: (1) it is
substantially likely to succeed on the merits of its underlying claims; (2) it will suffer
imminent, irreparable injury without injunctive relief; (3) such injury outweighs the harm
2 The Title IX claim is the only federal claim pled in the Complaint.
3 Plaintiff is proceeding in forma pauperis, but Defendants have not yet been served.
an injunction poses to the opposing party; and (4) injunctive relief will serve the public
interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
Federal Rule of Civil Procedure 65(b) authorizes a court to grant injunctive relief ex parte
– that is, against a party who has not yet received notice of the motion seeking injunctive
relief and/or had an opportunity to be heard. To obtain such relief, however, the movant
must make a “clear[] show[ing] that immediate and irreparable injury, loss, or damage will
result . . . before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b).
The Local Rules of this District state further that an ex parte order “will be entered
only in emergency cases to maintain the status quo until the requisite notice may be given
and an opportunity is afforded to opposing parties to respond to the application for a
preliminary injunction.” M.D. Fla. R. 4.05(a). To constitute a true “emergency,” the injury
alleged must be “so imminent that notice and a hearing on the application for preliminary
injunction is impractical if not impossible.” Id. 4.05(b)(2).
Discussion
An award of ex parte injunctive relief is not warranted here because Plaintiff has
not established that she is substantially likely to succeed on the merits of her claims. After
a review of the Second Amended Complaint in Brown I, and the Complaint in this case,
the Court notes that Plaintiff has made nearly identical allegations. The only difference
being in this case she labels her federal claim as one brought under Title IX instead of
one under the Fourteenth Amendment. Notably, on the first page of the Second Amended
Complaint filed in Brown I (which was filed after this lawsuit was filed), Plaintiff states:
“This is not a title xi [sic] complaint and should not be construed by this Court has a title
ix complaint in any way, shape, form, or fashion.” (Brown I at Doc. 77). This raises
serious questions as to whether Plaintiff's Title IX claim here is barred by the doctrine of
res judicata as it could have been pled in the Brown / case. “It is by now hornbook law
that the doctrine of res judicata bars the filing of claims which were raised or could have
been raised in an earlier proceeding.” Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375
(11th Cir. 2011). The same analysis applies to Plaintiff's state law claims as well.
Therefore, because Plaintiff has not established that she is substantially likely to
succeed on the merits, she is not entitled to the extraordinary relief of an ex parte
restraining order.
Accordingly, it is now
ORDERED:
(1) Plaintiff's Motion for Temporary Restraining Order (Doc. 27) is DENIED.
(2) Plaintiff's request for a preliminary injunction is taken under advisement
pending a hearing on the matter.
(3) After service, Defendants shall have fourteen (14) days to file a written
response to the request for preliminary injunction.
DONE and ORDERED in Fort Myers, Florida this 16th day of August, 2019.
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record