Benson v. Hernando County School District Board

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARK BRADFORD BENSON, et al.,

Plaintiffs,

v. Case No: 8:21-cv-2060-CEH-AAS

HERNANDO COUNTY SCHOOL

DISTRICT BOARD, JOHN

STRATTON, DENNIS ALFONSO,

LINDA K. PRESCOTT, SUSAN

DUVAL, KAY HATCH, GUS

GUADAGNINO, RAYMOND

PINDER and B. CROFT,

Defendants.

___________________________________/

ORDER

This matter comes before the Court on Plaintiff Mark Bradford Benson’s

Complaint and Emergency Motion for Injunctive Relief,1 which the Court construes

as a motion seeking a temporary restraining order or preliminary injunction (Doc. 1),

filed on August 26, 2021. In the construed motion, Plaintiff seeks to enjoin the

Hernando County School Board from conducting a meeting on August 31, 2021, to

vote on a mask mandate for the Hernando County public schools. The Court, having

considered the construed motion and being fully advised in the premises, will deny

Plaintiff's construed motion for temporary restraining order or preliminary injunction

1 Plaintiff Mark Bradford Benson identifies twelve other individuals as plaintiffs in this action.

However, the other individuals did not sign the complaint and Plaintiff Mark Bradford

Benson, who is proceeding pro se, cannot represent them.

for failure to comply with Fed. R. Civ. P. 65 and the M.D. Fla. Local Rules 6.01 and

6.02.

DISCUSSION

On August 26, 2021, Plaintiff Mark Bradford Benson filed a Complaint and

Emergency Motion for Injunction on behalf of himself and twelve other Plaintiffs. As

a preliminary matter, Plaintiff, who is proceeding pro se and appears to be a nonlawyer,

cannot represent the other plaintiffs. See Timson v. Sampson, 518 F.3d 870, 873 (11th

Cir. 2008) (28 U.S.C. § 1654, the general provision permitting parties to proceed pro se

provides a personal right that does not extend to the representation of the interests of

others.). Thus, Mark Benson is the only Plaintiff in this action.

Benson sues the Hernando County School District Board, Superintendent of

Schools John Stratton, General Counsel Dennis Alfonso, Board Chair Linda Prescott,

board members Susan Duval and Kay Hatch, vice-chair Gus Guadagnino, Director of

Human Resources Raymond Pinder (“Pinder”), and Deputy B. Croft for alleged

constitutional violations. Doc. 1. Benson alleges that on May 25, 2021, he was refused

entry to a public school board meeting by Pinder. Id. at 3. He further alleges that

Deputy Croft forced him to leave a public school board meeting that was held August

24, 2021. Id. He states that Hernando County School Board has called an emergency

meeting to be held Tuesday August 31, 2021, at 3:30 p.m. to vote on mask mandates

for all children in the Hernando County School District. Id. at 3–4. He alleges that the

Hernando County School Board’s recurrent conduct of imposing mask mandates for

school-aged children despite vocal protests by a majority of parents, violates the First,

Fourth, Ninth, and Tenth Amendments to the United States Constitution. Id.

Although Benson’s complaint is titled a “Complaint and Emergency Motion for

Injunction,” his request for emergency injunctive relief does not comply with the

procedural requirements of the Federal Rules and the Local Rules of this Court. Local

Rule 6.01 provides that a party seeking a temporary restraining order must file a

motion with a supporting legal memorandum and a proposed order. M.D. Fla. Local

Rule 6.01(a). The legal memorandum must establish “(1) the likelihood that the

movant ultimately will prevail on the merits of the claim, (2) the irreparable nature of

the threatened injury and the reason that notice is impractical, (3) the harm that might

result absent a restraining order, and (4) the nature and extent of any public interest

affected.” M.D. Fla. L.R. 6.01(b). Additionally, the motion shall include “Temporary

Restraining Order” in the title, contain a precise and verified description of the conduct

and the persons subject to restraint, and provide a precise and verified explanation of

the amount and form of the required security. M.D. Fla. L.R. 6.01(a).

The requirements for a preliminary injunction are the same except the motion

should include “Preliminary Injunction” in the title, must attach each paper on which

the movant relies, and the movant is required to provide notice to each affected person

as soon as practical M.D. Fla. L.R. 6.02. The Federal Rules similarly provide that a

court “may issue a preliminary injunction only on notice to the adverse party.” Fed.

R. Civ. P. 65.

There is no indication that Benson has provided notice to Defendants.

Moreover, Benson has not filed a motion and/or memorandum of law requesting

injunctive relief, has not provided a proposed order, and has not set forth the

requirements necessary to demonstrate he is entitled to injunctive relief. Nor has he

provided an explanation of the amount and form of security. Thus, his motion for an

injunction is procedurally flawed and due to be denied on that basis alone. Even if the

Court construes his Complaint as a motion for temporary restraining order or for

preliminary injunction, however, his construed motion nevertheless fails.

Federal Rule of Civil Procedure 65(b)(1) authorizes the court to issue a

temporary restraining order where “specific facts in an affidavit or a verified complaint

clearly show that immediate and irreparable injury, loss, or damage will result to the

movant before the adverse party can be heard in opposition” and “the movant’s

attorney certifies in writing any efforts made to give notice and the reasons why it

should not be required.” A temporary restraining order “is an extraordinary remedy

to be granted only under exceptional circumstances.” Cheng Ke Chen v. Holder, 783 F.

Supp. 2d 1183, 1186 (N.D. Ala. 2011) (citing Sampson v. Murray, 415 U.S. 61 (1974)).

To obtain a temporary restraining order or preliminary injunction, a movant

must show: (1) a substantial likelihood of success on the merits; (2) an irreparable

injury in the absence of the requested injunction; (3) a threatened injury that exceeds

any injury to the non-moving party caused by the injunction; and (4) that public policy

favors such an order. Dimare Ruskin, Inc. v. Del Campo Fresh, Inc., No. 8:10-cv-1332-

SDM-AEP, 2010 WL 2465158, at *1 (M.D. Fla. June 15, 2010) (citing Four Seasons

Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003));

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005); see also

M.D. Fla. L.R. 6.01, 6.02 (requiring a party requesting a temporary restraining order

or preliminary injunction to submit a brief or memorandum addressing these factors).

Benson fails to establish the necessity for a temporary restraining order or

preliminary injunction in this case. He has not demonstrated a substantial likelthood

of success. He has not alleged that he suffered any injury, let alone an “irreparable”

injury. Benson’s construed motion fails to address the prerequisites for issuance of a

temporary restraining order or preliminary injunction. Because his construed motion

is procedurally flawed and he fails to satisfy the requirements to obtain the

extraordinary remedy of injunctive relief, Benson’s construed motion is due to be

denied. Accordingly, it is hereby

ORDERED:

1. Plaintiff Mark Bradford Benson’s Construed Motion for Temporary

Restraining Order or Preliminary Injunction (Doc. 1) is DENIED.

2. Because Benson cannot represent the other twelve Plaintiffs, the Clerk is

directed to terminate the other named Plaintiffs and update the docket accordingly.

DONE AND ORDERED in Tampa, Florida on August 27, 2021.

Chaene Cdhwardsa Mo TDA pl yell

Charlene Edwards Honeywell

United States District Judge

Copies to: Mark Benson, pro se

Counsel of Record and Unrepresented Parties, if any