Opinion
4:23-cv-00125-CDL-MSH
01-09-2024
KIM CAMILLE FLORENCE, Petitioner, v. Sheriff GREG COUNTRYMAN, Respondent.
ORDER & RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
In this case, Petitioner Kim Camille Florence, a pretrial detainee currently being held in the Muscogee County Jail in Columbus, Georgia, filed multiple pro se habeas corpus petitions and supplements, as well as several motions. See e.g., Pet. for Writ of Habeas Corpus., ECF No. 1; Second Petition for Writ of Habeas Corpus, ECF No. 5; Notice, ECF No. 8; Suppl., ECF No. 12; Notice, ECF No. 13. Thereafter, Petitioner was ordered to recast her petitions and supplements into a single petition to consolidate her claims for the Court's review. Order 2-3, ECF No. 16. Petitioner was instructed that she was not to use more than ten additional pages to set forth her claims, she was not to include any attachments or exhibits with her petition, and she was not to continue to file repetitive motions, supplements, and notices to add to her claims. Id. In that same order, the undersigned recommended that Petitioner's pending motions for injunctive relief (ECF Nos. 10, 14, & 15) be denied. Id. at 3-5.
Following the entry of that order, Petitioner filed three motions and a recast petition. Mot. for Hearing, ECF No. 17; Mot. for Leave to Proceed In Forma Pauperis, ECF No. 18; Mot. for Recusal, ECF No. 19; Recast Petition, ECF No. 20. The District Judge then entered an order adopting the recommendation to deny Petitioner's motions for injunctive relief. Order, ECF No. 21. Petitioner followed the District Judge's order with a second set of motions and another recast petition. Mot. for Reconsideration, ECF No. 22, Mot. for Leave to Proceed In Forma Pauperis, ECF No. 24; Recast Pet., ECF No. 23. Petitioner also filed a notice of appeal from the District Judge's order and a motion for leave to appeal in forma pauperis. Notice of Appeal, ECF No. 25; Mot. for Leave to Appeal In Forma Pauperis, ECF No. 26.
The District Judge has now denied Petitioner's pending motions for reconsideration (ECF No. 22) and leave to appeal in forma pauperis (ECF No. 26). Orders, ECF Nos. 32 & 33. The District Judge also denied Petitioner's requests for the undersigned Magistrate Judge to be recused from this matter. Id. Thus, the remaining documents with pending motions are as follows: a motion demanding a writ of immediate release and demanding the Court honor Plaintiff's in forma pauperis status, as granted in other cases (ECF No. 17); two motions to proceed in forma pauperis (ECF Nos. 18 & 24); a motion for the undersigned's recusal and for orders for immediate release and a protection order (ECF No. 19); and a motion seeking a writ of immediate release and a speedy hearing and oral argument (ECF No. 30). These motions and Petitioner's pending petition for a writ of habeas corpus are addressed in turn below.
Petitioner is reminded of the instructions that she not submit repetitive filings and motions. Giving Petitioner the benefit of the doubt, it appears that Petitioner submitted certain repetitious filings in response to the District Judge's statement that no objections had been received, but regardless, Petitioner has filed multiple motions seeking immediate release and leave to proceed in forma pauperis, despite the Court already having addressed Petitioner's previous motions seeking the same relief. These repetitive filings create confusion and interfere with the Court's ability to expeditiously address Petitioner's habeas petition and other filings. Thus, Petitioner is again cautioned that if she continues to submit repetitive motions and other filings, she may be subject to sanctions.
PENDING MOTIONS
I. Document 17
A. Motion for Immediate Release
In the first pending motion, Petitioner again seeks immediate release from the Muscogee County Jail. Mot. for Hearing, ECF No. 17. Petitioner has already been denied immediate release, and her appeal of that denial is currently pending before the Eleventh Circuit. See Florence v. Sheriff of Muscogee Cnty., Case No. 23-13902 (11th Cir.). Under Fed.R.Civ.P. 62.1, a district court faced with a motion “that the court lacks authority to grant because of an appeal that has been docketed” may defer the motion, deny the motion, or state either that it would grant the motion on remand or that the motion raises a substantial issue. Here, Petitioner's arguments in the motion for immediate release are generally the same as those already presented and denied. Thus, for the reasons that such relief was previously denied, it is RECOMMENDED that this motion also be DENIED.
B. Motion for In Forma Pauperis Status
Petitioner also moves in Document 17 for the Court to honor her in forma pauperis status as granted in other cases. Petitioner asserts that someone else's money is in her prisoner account and that the Court may not determine her indigency based on someone else's money. She also notes that she has been granted leave to proceed in forma pauperis in other cases. Thus, she seeks a refund of the $5.00 fee paid in this case. The filing fee has already been paid from Petitioner's account, which is money that is available for her use, regardless of who deposited that money. Moreover, leave to proceed in forma pauperis is determined in the individual case, and this Court is not bound by Petitioner being granted leave to proceed in forma pauperis. Therefore, Petitioner's motion to proceed in forma pauperis is DENIED, and her request for a refund of the filing fee is also DENIED.
II. Documents 18 & 24
In Documents 18 and 24, Petitioner repeats her requests for leave to proceed in this case in forma pauperis. For the reasons set forth above, these motions are also DENIED.
III. Document 19
A. Recusal
The district judge has denied Petitioner's motions for the undersigned Magistrate Judge to be recused from this matter. Thus, to the extent that Petitioner has included an additional request in this document, it is also DENIED.
B. Immediate Release
Petitioner also seeks immediate release in this motion. For the reasons set forth above, it is again RECOMMENDED that this motion be DENIED.
C. Protective Order
Petitioner also asks for a protective order for her safety, which appears to be separate from her requests for release. A temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than to grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the nonmovant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (per curiam); Windsor v. United States, 379 Fed.Appx. 912, 916-17 (11th Cir. 2010) (per curiam).
Petitioner states that she is seeking a protective order for “obvious reasoning,” but she does not explain what she means by this. Throughout this case, Petitioner has asserted that she is in danger, and she has made general allegations suggesting that she is worried that people involved in this case may cause her harm. Petitioner has not, however, alleged specific facts showing that she is in any particular danger, nor has she set forth any grounds to show that she is entitled to a protective order on this basis. Therefore, it is RECOMMENDED that this motion also be DENIED.
IV. Document 30
A. Immediate Release
To the extent that Petitioner again seeks immediate release in Document 30, it is again RECOMMENDED that this request for relief be DENIED for the reasons set forth above.
B. Speedy Hearing and Oral Argument
Petitioner moves for a speedy hearing and oral argument on her request for release. To the extent that Petitioner seeks an evidentiary hearing on her writ petition, such motion is premature and unnecessary. To date, Respondent has not yet had the opportunity to respond to the petition. Moreover, if a hearing is required to resolve Petitioner's claims, the Court will determine that at the appropriate time in the proceedings. Therefore, this motion is DENIED.
C. In Forma Pauperis status
Petitioner also renews her requests for leave to proceed in forma pauperis and a refund of the fee paid in this case. For the reasons discussed herein, this request is again DENIED.
Petitioner also asks for a jury trial, but this request appears to be related to her 42 U.S.C. § 1983 case, which has been dismissed. Thus, this request is not addressed further herein. Additionally, Petitioner asks this Court to cooperate with the Eleventh Circuit Court of Appeals. It is unclear what Petitioner is requesting in this regard, as this Court has not taken any action that would not be in cooperation with the Court of Appeals, nor has the Court given Petitioner any indication that it would not cooperate with the Court of Appeals. Thus, this motion is DENIED AS UNNECESSARY. This Court will, however, of course cooperate with the Court of Appeals consistent with its usual practice.
ORDER FOR SERVICE
In addition to the motions addressed above, Petitioner has filed a recast petition for a writ of habeas corpus. As the most recently filed version of that order, the recast petition docketed as Document 23 on November 15, 2023, will be considered the operative document at this point. It is now ORDERED that, within THIRTY (30) DAYS of the date of this Order, Petitioner amend or supplement her petition to add any unalleged possible constitutional error or deprivation entitling her to relief under § 2241 if she wishes to do so. If Petitioner does not amend or supplement her petition, she will be presumed to have deliberately waived her right to complain of any constitutional errors or deprivations other than those set forth in her recast habeas petition (ECF No. 23). If amended, Petitioner will be presumed to have deliberately waived her right to complain of any constitutional errors or deprivations other than those set forth in her recast and amended habeas petitions.
It is further ORDERED that Respondent file an answer to the allegations of the petition and any amendments within SIXTY (60) DAYS after service of this Order and in compliance with Rule 5 of the Rules Governing Section 2254 Cases. Either with the filing of the answer or within fifteen (15) days after the answer is filed, Respondent shall move for the petition to be dismissed or shall explain in writing why the petition cannot be adjudicated by a motion to dismiss. Any and all exhibits and portions of the record that Respondent relies upon must be filed contemporaneously with Respondent's answer or dispositive motion.
A copy of the petition and a copy of this Order shall be served on Respondent by the Clerk of Court. A copy of this Order shall be served by the Clerk by U.S. mail upon Petitioner. Petitioner is advised that her failure to keep the Clerk of the Court informed as to any change of address may result in the dismissal of this action.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this order and recommendation with the United States District Judge to whom this case is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order and recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED and DIRECTED.