KERN v. WEISS

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
GARRETT KERN,
D.O.C. # Y48052,
Plaintiff,
vs. 	Case No. 4:25cv241-MW-MAF
CLAYTON WEISS,
Defendant.
_________________________/
SECOND REPORT AND RECOMMENDATION
The pro se Plaintiff has submitted a successive motion for preliminary
injunction, ECF No. 24, along with his second amended complaint, ECF
No. 23. An Order separately entered this day found Plaintiff’s second
amended complaint insufficient to proceed and provided Plaintiff with an
opportunity to file a third amended complaint. ECF No. 27. As was the
primary problem with the first and second amended complaints, ECF Nos.
17 and 23, Plaintiff has continued to present legal conclusions instead of
factual allegations; thus, his complaints are insufficient to state a claim.
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This Second Report and Recommendation deals only with Plaintiff’s
second motion for preliminary injunctive relief. ECF No. 24. Plaintiff has
submitted an identical, one-page, one sentence motion which states only
that he is requesting the Court “provide [him] immediate preliminary
injunctive relief” based on his serious medical need. ECF No. 24; see also
ECF No. 18. Plaintiff’s motion did not include a supporting memorandum
of law as required by Local Rule 7.1 and, thus, is insufficient on its face. 1
Moreover, as noted in the prior Report and Recommendation, ECF
No. 22, Plaintiff’s amended complaints have not demonstrated that Plaintiff
has a serious medical need which his medical providers are not treating as
required by the Eighth Amendment. 	See ECF Nos. 17, 23. Plaintiff
appears to have been diagnosed with the Hepatitis C Virus [HCV] at some
point in time, but Plaintiff’s amended complaints do not explain his medical
condition, detail his current symptoms, or otherwise show that medical staff
have failed to provide him with constitutionally sufficient health care. The
operative second amended complaint again fails to state a claim.
1 The Local Rules of this Court require a moving party to file a supporting
memorandum of law with a motion. N.D. Fla. Loc. R. 7.1(E). “The Court may deny a
moving party’s motion if the party does not file a memorandum as required by this rule.”
N.D. Fla. Loc. R. 7.1(H).
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As Plaintiff was previously advised in the first Report and
Recommendation, ECF No. 22, granting or denying a motion for a
preliminary injunction is a decision within the discretion of the district court.
Carillon Importers, Ltd. v. Frank Pesce Intern. Group Ltd., 112 F.3d 1125,
1126 (11th Cir. 1997) (citing United States v. Lambert, 695 F.2d 536, 539
(11th Cir. 1983)). Guiding the Court’s discretion is the requirement that
Plaintiff must establish four requirements:
(1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury if the injunction were not
granted;
(3) that the threatened injury to the plaintiffs outweighs the harm an
injunction may cause the defendant; and
(4) that granting the injunction would not disserve the public interest.
Carillon Importers, Ltd., 112 F.3d at 1126; Church v. City of Huntsville, 30
F.3d 1332, 1342 (11th Cir. 1994); United States v. Jefferson Cnty., 720
F.2d 1511, 1519 (11th Cir. 1983). A preliminary injunction is an
extraordinary and drastic remedy and cannot be granted unless the movant
“carries the burden of persuasion” for all four prerequisites. Jefferson
Cnty., 720 F.2d at 1519 (citing Canal Auth. v. Callaway, 489 F.2d 567 (5th
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Cir. 1974)). Here, because Plaintiff’s second amended complaint has been
found insufficient to state a claim, Plaintiff does not have a substantial
likelihood of success on the merits. Moreover, Plaintiff’s motion for a
preliminary injunction fails to show Plaintiff faces a substantial threat of
irreparable injury. Therefore, Plaintiff’s successive motion for a preliminary
injunction, ECF No. 24, should be denied.
RECOMMENDATION
In light of the foregoing, it is respectfully RECOMMENDED that
Plaintiff’s motion for preliminary injunctive relief, ECF No. 24, be DENIED
and this case be REMANDED for further proceedings.
IN CHAMBERS at Tallahassee, Florida, on November 4, 2025.
S/ 	Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this Report and
Recommendation, a party may serve and file specific written objections to these
proposed findings and recommendations. 	Fed. R. Civ. P. 72(b)(2). 	Any different
deadline that may appear on the electronic docket is for the Court’s internal use only
and does not control. If a party fails to object to the Magistrate Judge’s findings or
recommendations as to any particular claim or issue contained in this Report and
Recommendation, that party waives the right to challenge on appeal the District
Court’s order based on the unobjected-to factual and legal conclusions. See 11th
Cir. Rule 3-1; 28 U.S.C. § 636.
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