The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MERVIN GALE RHODES,
Plaintiff,
v. Case No. 3:20-cv-607-J-32MCR
MARK INCH, et al.,
Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE
Plaintiff, an inmate of the Florida penal system, filed a pro se Complaint
for Violation of Civil Rights. Doc. 1. He names as Defendants: Secretary Mark
Inch, Governor Ron DeSantis, Attorney General Ashley Moody, President
Donald J. Trump, Lt. Tremble, James Walker, Duty Warden Lancaster, and
Duty Warden Parrish. Id. at 1.
Plaintiff states that all Defendants are being deliberately indifferent to
his health and safety in violation of the Fifth, Eighth, and Fourteenth
Amendments. Id. at 8. He is “scared to death of contracting the [C]oronavirus
as he is 47 – soon to be 48 years old, African American, and thus[,] at a higher
risk of dying if he contracts” the illness. Id. at 6. He also alleges that he has a
family history of diabetes, heart disease, and respiratory ailments. Id. Because
of his alleged vulnerabilities, he sent an “Emergency Petition for Immediate
Release” to Defendants DeSantis, Moody, and Trump, but they have not
responded. Id. Plaintiff further asserts that despite his fear of the virus, he “has
been ‘forced’ to clean and handle COVID-19 exposed food carts and equipment”;
and is now refusing to work. Id. According to Plaintiff, after he refused to do his
job, he was placed in administrative confinement for eleven days and had thirty
days of gain time revoked. Id. at 5. He also argues that he was moved from the
Hamilton Correctional Institution’s work camp to the main unit, where he has
an increased risk of exposure to the virus. Id. at 6. He claims that he is an
“innocent man” and his “life . . . substantially outweighs Defendants[’] need to
continue[ ] [his] incarceration.” Id. at 8. As relief, he requests a “preliminary
injunction and/or $1,000,000,000,000 in compensatory damages and an
unspecified amount of punitive damages.” Id. at 9. He also seeks an expedited
disposition of his pending 28 U.S.C. § 2254 proceedings. Id.
The Court does not have the authority to grant Plaintiff compassionate
release as he is serving a Florida state criminal sentence. See generally Ch. 947,
Laws of Fla. (placing the authority for conditional release with the Florida
Commission on Offender Review). Also, to the extent Plaintiff is attempting to
challenge the loss of gain time, that argument should be raised in at § 2241
habeas proceeding. To the extent Plaintiff asserts that the conditions of his
confinement are unconstitutional, he may initiate a separate civil rights action.
2
The Court has approved the use of a form for § 2241 actions and § 1983 actions.
Plaintiff will be provided with copies of these forms. To the extent Plaintiff is
seeking to expedite the Court’s ruling in his pending § 2254 action, he should
file an appropriate motion in that case.1
As to Plaintiff’s request for injunctive relief, the Court is of the opinion
that injunctive relief is not warranted.
A preliminary injunction is an “extraordinary
and drastic remedy.” McDonald’s Corp. v. Robertson,
147 F.3d 1301, 1306 (11th Cir. 1998) (quoting All Care
Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887
F.2d 1535, 1537 (11th Cir. 1989)). To secure an
injunction, a party must prove four elements: (1) a
substantial likelihood of success on the merits; (2)
irreparable injury absent an injunction; (3) the injury
outweighs whatever damage an injunction may cause
the opposing party; and (4) an injunction is not adverse
to the public interest. Id.
Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213,
1217 (11th Cir. 2009); Keister v. Bell, 879 F.3d 1282, 1287-88 (11th Cir. 2018).
The movant must clearly establish the burden of persuasion as to the four
requisites. See McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998). Plaintiff has failed to carry his burden. This case will be dismissed
without prejudice to Plaintiff’s right to initiate a new § 2241 and/or § 1983 case
1 Plaintiff’s § 2254 federal habeas petition is currently pending in Rhodes
v. Sec’y, Fla. Dep’t of Corr., 3:20-cv-19-J-34MCR (M.D. Fla).
3
on the appropriate form, if he so chooses.
Accordingly, it is
ORDERED AND ADJUDGED:
1. This case is DISMISSED without prejudice.
2. The Clerk shall enter judgment dismissing this case without
prejudice, terminate any pending motions, and close the file.
3. The Clerk shall send Petitioner a civil rights complaint form, a
form for use in § 2241 cases, and two affidavit-of-indigency forms.
DONE AND ORDERED at Jacksonville, Florida, this 8th day of July,
2020.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
c: Mervin Rhodes, #295730