Opinion
Case No: 6:16-cv-479-Orl-37GJK
04-07-2017
DEREASE L. IRONS, Plaintiff, v. CITY OF HOLLY HILL, STEPHEN ALDRICH and JAMES PATTON, Defendants.
REPORT AND RECOMMENDATION
This cause came on for consideration without oral argument on the following motions filed herein:
MOTION: EMERGENCY REQUEST FOR INJUNCTIVE RELIEF (Doc. No. 46)
FILED: February 6, 2017
THEREON it is RECOMMENDED that the motion be DENIED.
MOTION: DEFENDANT SERGEANT JAMES PATTON'S MOTION TO STRIKE PLAINTIFF'S EMERGENCY MOTION FOR INJUNCTIVE RELIEF (Doc. No. 48)
FILED: February 9, 2017
THEREON it is RECOMMENDED that the motion be DENIED AS MOOT.
On February 6, 2017, Plaintiff, proceeding pro se, filed his request for injunctive relief (the "Motion"). Doc. No. 46. In the Motion, Plaintiff names parties that have not been joined in this case. Id. at 1. Plaintiff also states that the Court should have received his civil rights complaint by January 27, 2017. Id. However, in this case, Plaintiff has not filed a complaint since June 27, 2016. Doc. No. 23.
In the Motion, Plaintiff alleges that the Volusia County Jail (the "Jail") prevents detainees from using the phone to contact legal counsel and public officials. Doc. No. 46 at 2. Plaintiff seeks a court order requiring the Jail to "to restore visitation and phone calls to the outside world and to restore all other privileges that [have] been denied and stripped from inmates without a disciplinary hearing...which is a violation of due process." Id. On February 9, 2017, Defendant, Sergeant James Patton moved to strike the Motion (the "Motion to Strike"), noting that "it appears [Plaintiff's] request was filed in the wrong case." Doc. No. 48 at 1.
The undersigned agrees. Plaintiff has initiated two separate actions against the Defendants named in the Motion, Irons v. County of Volusia et al., 6:17-cv-163-CEM-DCI (the "Volusia Action") and Irons v. Flowers et. al., 6:17-cv-22-PGB-KRS (the "Flowers Action"). In the Volusia Action, Plaintiff filed a complaint under 42 U.S.C. § 1983 stating allegations similar to those stated in the Motion. See Irons v. County of Volusia et al., 6:17-cv-163-CEM-DCI (Doc. No. 1). Such complaint was filed on January 31, 2017, around the time Plaintiff states the Court should have received the complaint referred in the Motion. Id. The complaint filed in the Volusia Action also names the same parties mentioned in the Motion Id. On February 13, 2017, Plaintiff moved to voluntarily dismiss the Volusia Action, and the Court dismissed the case on February 16, 2017. Irons v. County of Volusia et al., 6:17-cv-163-CEM-DCI (Doc. Nos. 5, 6). The Flowers Action is still pending. See Irons v. Flowers et. al., 6:17-CV-22-PGB-KRS.
Plaintiff does not name any of the parties in this case in the Motion. Doc. No. 46. Furthermore, the Motion's allegations are far different from the central issue in this case, which involves an alleged unlawful search of Plaintiff's vehicle. See Doc. No. 55. Based on the foregoing, the undersigned finds that the Motion should be denied.
Accordingly, it is RECOMMENDED that the Court:
1) DENY the Motion (Doc. No. 46); and
2) DENY the Motion to Strike (Doc. No. 48) AS MOOT.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1. In order to expedite the final disposition of this matter, if the parties have no objection to this report and recommendation, they may promptly file a joint notice of no objection.
Recommended in Orlando, Florida on April 7, 2017.
/s/_________
GREGORY J. KELLY
UNITED STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy