The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DANIEL A. FRISHBERG,
Plaintiff,
v. Case No. 8:24-cv-22-TPB-NHA
UNIVERSITY OF SOUTH
FLORIDA’S BOARD OF TRUSTEES,
HRSE-CAPSTONE TAMPA, LLC,
Defendants.
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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR TEMPORARY RESTRAINING ORDER
This matter comes before the Court on “Plaintiff’s Emergency Motion for [an]
Injunction, or in the Alternative, a Temporary Injunction/Restraining Order.” (Doc.
4). On the basis of the verified complaint and the motion, the Court finds as follows:
Background
Plaintiff Daniel A Frishberg, a student at USF, owns a cat which he alleges
he uses as an emotional support animal. USF initially recognized the cat as an
emotional support animal and allowed Plaintiff to have the cat in his dorm building.
Defendant’s policies, however, precluded Plaintiff from taking the cat out of his
room. While Plaintiff’s filings do not set forth a clear timeline of events, it appears
that after Plaintiff allowed the cat outside of his room and into common areas of the
dorm, Defendants imposed as a sanction a requirement that Plaintiff pay a fee and
take educational courses on civility. When Plaintiff failed to comply and failed to
comply with a directive to remove the animal, Defendants terminated Plaintiff’s
lease for the room, changed the lock system so that Plaintiff no longer had access to
the room, and removed his personal belongings. Plaintiff alleges that there is no
comparable, adequate housing available for him, but he does not state where he is
currently living.
Plaintiff contends that Defendants’ refusal to accommodate his request to
have his emotional support animal outside of his room and other actions – including
their imposition of sanctions, termination of his rental agreement, and locking him
out of his room – constitute discrimination and retaliation in violation of the federal
Fair Housing Act as well as breaches of Defendants’ duties under other statutes and
common law principles.
On November 28, 2023, Plaintiff filed suit in small claims court in
Hillsborough County making essentially the same allegations presented in this
case. On December 19, 2023, Plaintiff filed an amended complaint in that case and
a motion seeking essentially the same injunctive relief sought in the instant motion.
The defendants in that case moved to strike the complaint and motion, arguing that
the amended complaint was improperly filed without leave of court and that
Plaintiff’s claims could not properly be brought in small claims court.
That state court suit remains pending, but on January 3, 2024, Plaintiff
brought this suit.1 On January 8, 2024, Plaintiff also filed the instant motion
seeking a preliminary injunction or temporary restraining order. Plaintiff filed the
1 Plaintiff filed a motion to proceed in forma pauperis, which the Court granted. (Doc. 5).
motion as an “emergency” motion on the ground that the first business day on
which his account was locked preventing him from registering for classes was
January 8, 2024, and the last day to register is January 12, 2024.
Legal Standard
A district court is authorized to issue a temporary restraining order without
notice to the adverse party only in limited emergency circumstances. See Fed. R.
Civ. P. 65(b). Under Rule 65(b)(1), a federal court may only issue a temporary
restraining order without first giving notice to the enjoined parties if the movant
provides:
(A) specific facts in an affidavit or a verified complaint clearly show[ing] that
immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). If the movant establishes that it is justified in seeking ex
parte relief, it next bears the burden to establish that injunctive relief is appropriate
by showing: “(1) a substantial likelihood of success on the merits; (2) that
irreparable injury will be suffered if the relief is not granted; (3) that the threatened
injury outweighs the harm the relief would inflict on the non-movant; and (4) that
entry of the relief would serve the public interest.” Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
Analysis
This Court finds that issuing this Order without notice pursuant to Rule
65(b)(1) of the Federal Rules of Civil Procedure is appropriate, but only to a very
limited extent. Specifically, the motion is granted to the extent that Defendants are
temporarily enjoined from issuing or enforcing holds on Plaintiff’s academic records
or preventing him from enrolling in or dropping classes, including remote or online
classes, or from transferring out of USF to another educational institution. The
motion is otherwise denied.
In granting this temporary relief, the Court emphasizes the undersigned is
currently presiding over a criminal jury trial involving very serious allegations and
does not have time to hold a hearing to consider the merits of Plaintiff’s claims in
detail before expiration of the deadline for registering for classes. The Court has
accepted Plaintiff’s factual contentions as true, but it has not determined Plaintiff
will in fact succeed on his claims, or that, as Plaintiff argues, he is “extremely”
likely to succeed.
The Court assigns significant weight to the potential for irreparable harm to
Plaintiff if he is precluded from registering for classes before the January 12
deadline, as alleged, so that he is unable to attend classes in person or remotely or
seek transfer to other educational institutions. On the other hand, there appears to
be only a minimal burden or potential harm to Defendants or to the public in
allowing registration until such time as the Court can hear this matter after a
response from Defendants. The Court will subject the merits of Plaintiff’s claims to
greater scrutiny at the time of the preliminary injunction hearing.
The Court’s objective in granting this temporary relief is simply to preserve
the status quo by allowing Plaintiff to register for classes before the expiration of
the registration deadline. As to the other items of injunctive relief requested,
Plaintiff has failed to sufficiently demonstrate the threat of irreparable harm much
less irreparable harm that renders notice and a response by Defendants
impractical.
The Court will not require a bond at this time because the record does not
suggest that Defendants will suffer any injury in the short time frame between this
Order and a preliminary injunction hearing, at which time the Court will revisit the
issue of requiring a bond, as well as the other requirements for injunctive relief.
Finally, the Court notes that Plaintiff in his filings repeatedly asks the Court
to take into account his pro se status and appears to suggest that the Court should
not require him to comply with the various procedural rules that govern practice in
the federal courts. Plaintiff has chosen not only to file his case in federal court, but
also has chosen to file a complaint that is 46 pages long, asserts 17 claims for relief,
cites case law and statutes, and sets forth legal argument. While much of this
material is inappropriate in a complaint, it demonstrates a level of legal
sophistication on the part of Plaintiff – or perhaps individuals assisting him.
Plaintiff should not assume that violations of court rules or other legal
requirements will be overlooked. Even pro se plaintiffs must conform with
procedural rules, including the Federal Rules of Civil Procedure and the Local Rules
of the Middle District of Florida. Litigation – particularly in federal court – is
difficult, and Plaintiff should consider hiring an attorney. If Plaintiff is unable to
afford counsel, he should consider the resources available to pro se litigants,
including the Legal Information Program operated by the Tampa Bay Chapter of
the Federal Bar Association, and the Middle District of Florida's guide to assist pro
se litigants proceeding in federal court, which is located on the Court's website.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1. “Plaintiff’s Emergency Motion for [an] Injunction, or in the Alternative, a
Temporary Injunction/Restraining Order.” (Doc. 4) is GRANTED IN
PART and DENIED IN PART.
2. The motion is GRANTED to the extent that Defendants, their officers,
agents, servants, employees, attorneys, and all persons acting for, with,
by, through, under, or in active concert with them, are temporarily
enjoined and restrained from issuing or enforcing holds on Plaintiff’s
academic records or otherwise preventing him from enrolling in or
dropping classes, including remote or online classes, or transferring out of
USF to another educational institution.
3. The motion is otherwise DENIED.
4. Any Defendant or other person that is subject to this Order may appear
and move to dissolve or modify the Order as permitted by and in
compliance with the Federal Rules of Civil Procedure and Middle District
of Florida Local Rules.
5. This temporary restraining order without notice is entered at 3:15 p.m. on
this 9th day of January 2024 and shall remain in effect for fourteen (14)
days unless otherwise modified or dissolved prior to that time.
6. This matter will be scheduled for a preliminary injunction hearing by
separate notice on Tuesday, January 16, 2024, at 2:00 p.m.
7. Plaintiff is DIRECTED – before noon on January 10, 2024 – to serve on
Defendants through email to their counsel, at the email addresses listed
on counsel’s filings in the parallel state court case, the following: 1) a copy
of the complaint and its exhibits; (2) a copy of the motion and its exhibits;
and (3) a copy of this Order. Plaintiff is further DIRECTED to file with
the Court on or before January 11, 2020, a statement that service on
Defendants has been provided as directed.
8. Defendants are directed to file a response to Plaintiff’s motion on or
before noon on January 15, 2024. Defendants’ response should include
any affidavits, declarations, or documentary evidence Defendants wish the
Court to consider. The Court does not anticipate live testimony at the
January 16, 2024, hearing, which will be limited to legal argument and
determining whether there are any facts in dispute to be considered at a
further hearing.
DONE and ORDERED in Chambers, in Tampa, Florida this 9th day of
January, 2024.
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TOM BARBER
UNITED STATES DISTRICT JUDGE
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