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Sanchez v. Olig

United States District Court, E.D. Wisconsin

January 15, 2016

SALVADOR SANCHEZ, Plaintiff,
v.
CO OLIG, PAUL LUDVIGSON, ANTHONY MELI, DONALD STRAHOTA, WILLIAM POLLARD, and CAPTAIN WESTRA, Defendants.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (DKT. NO. 8), DENYING PLAINTIFF’S REQUEST TO FILE EVIDENCE IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER (DKT. NO. 13), DENYING PLAINTIFF’S FIRST MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AS MOOT (DKT. NO. 10), GRANTING PLAINTIFF’S SECOND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DKT. NO. 15), AND SCREENING SECOND AMENDED COMPLAINT (DKT. NO. 1)

HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

The pro se plaintiff, Salvador Sanchez, is a Wisconsin state prisoner. He has filed an amended complaint[1] (Dkt. No. 15-2) under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. On August 13, 2015, the court received from the plaintiff the full filing fee.

Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. No. 8), and Request to File Evidence in Support of the Motion (Dkt. No. 13)

Shortly after he filed his original complaint, the plaintiff filed a motion for temporary restraining order and preliminary injunction. Dkt. No. 8. He seeks transfer to another institution. The plaintiff contends that he is in danger of harassment and retaliation if he remains at Waupun Correctional Institution based on this lawsuit. Id. at 7. The plaintiff also states that he attended high school with one of the officers at Waupun Correctional Institution (not a defendant), that he had a relationship with the officer’s sister than ended badly, and that the officer is aware of this. Id. at 4.

To obtain preliminary injunctive relief, whether through a TRO or preliminary injunction, the plaintiff must show that (1) his underlying case has some likelihood of success on the merits, (2) no adequate remedy at law exists, and (3) he will suffer irreparable harm without the injunction. Wood v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If the plaintiff shows those three factors, the court then must balance the harm to each party and to the public interest from granting or denying the injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).

The plaintiff argues that he has shown, by the allegations in the complaint, that the defendants are capable of retaliation when someone does something that they don’t like. He argues that now that he has filed his complaint in federal court, the defendants “will retaliate, ” and will continue to hold him in segregation. He argues that because he suffers from an anxiety disorder, remaining in segregation will damage him.

The court finds that the plaintiff has not met the necessary requirements for the issuance of a temporary restraining order. First, the plaintiff has not demonstrated a sufficient likelihood of success on the merits of his claims at this stage. His complaint consists solely of allegations that the defendants verbally abuse him, file false conduct reports against him, and keep him in segregation unnecessarily. As yet, the plaintiff has not proven that these things are occurring, or are occurring out of retaliation. In addition, the allegations related to the officer who knows the plaintiff had a relationship with his sister do not relate to the plaintiff’s claims in this lawsuit. See Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (citing De Beers Consol. Mines v. U.S., 325 U.S. 212, 220 (1945)); see also Omega World Travel v. TWA, 111 F.3d 14, 16 (4th Cir. 1997); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) (“[A] party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party’s motion and the conduct asserted in the complaint.”) (citing Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975)).

Second, the plaintiff has not demonstrated that no adequate remedy at law exists. If he proves that the defendants have violated his rights, he has a remedy-he can collect damages from the defendants. In fact, that is what he has asked for in his second amended complaint. Dkt. No. 15-2 at 5.

Finally, the plaintiff has alleged that he will suffer “irreparable harm” if he stays in segregation, because it will make his anxiety worse than it already is. This is not a sufficient allegation for irreparable harm; the plaintiff already suffers from an anxiety disorder, and likely the fact of being incarcerated at all exacerbates that condition.

For all of these reasons, the court will deny the plaintiff’s motion for a preliminary injunction and temporary restraining order. Dkt. No. 8. Because the plaintiff has not met the requirements for the issuance of a temporary restraining order, the court also denies the plaintiff’s request to submit evidence in support of the motion. Dkt. No. 13.[2]

Plaintiff’s First Motion for Leave to File An Amended Complaint

On August 18, 2015, just a few days after he filed his original complaint, the plaintiff filed a motion asking for leave to amend that complaint. Dkt. No. 10. Fed.R.Civ.P. 15(a) states that if a party amends a pleading within twenty-one days of serving it, the party does not need the court’s permission. In this case, the plaintiff filed his first motion for leave to amend the complaint only two weeks after he filed the original, and before the court had screened his complaint or ordered it served on the defendants.

Even though the plaintiff timely filed his first motion to amend the complaint, however, the court will deny the motion as moot, because since then, he has filed a second motion, along with a second proposed amended ...


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