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Smith v. Foster

United States District Court, E.D. Wisconsin

May 4, 2016

DERRICK L. SMITH, Plaintiff,
v.
BRIAN FOSTER, et al., Defendants.

DECISION AND ORDER DENYING PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTIVE RELIEF AND TEMOPORARY RESTRAINING ORDERS (DKT. NOS. 1, 16, 19, 23), DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 35), AND GRANTING PLAINTIFF’S MOTION TO SUBSTITUTE DR. SAUVEY FOR DEFENDANT “JANE DOE, DOCTOR” (DKT. NO. 37)

HON. PAMELA PEPPER United States District Judge

Motions for Emergency Injunctive Relief and Temporary Restraining Orders

On January 21, 2016, the plaintiff filed a letter seeking emergency injunctive relief. Dkt. No. 1. Because the plaintiff had not filed a complaint, Magistrate Judge Nancy Joseph (who was the presiding judge at that time), construed the letter as a complaint, screened it, and ordered the plaintiff to file an amended complaint. Dkt. No. 5. The plaintiff filed an amended complaint on February 12, 2016, and on February 18, 19, and 29, the plaintiff filed emergency motions for preliminary injunctive relief and restraining orders. Dkt. Nos. 14, 16, 19, 23. Judge Joseph screened the plaintiff’s amended complaint on March 15, 2016, pursuant to 28 U.S.C. 1915A(a), and she ordered the defendants to respond to the plaintiff’s emergency motions. Dkt. No. 26. On March 21, 2016, after the defendants filed their refusal to consent to proceed before a magistrate judge, the clerk’s office re-assigned the case to Judge Pepper. The defendants responded to the plaintiff’s motions on April 5, 2016. Dkt. No. 31. The plaintiff chose not to file reply briefs in support of his motions, so the motions now are fully briefed and ready for the court’s decision.

Although the plaintiff filed four different motions for emergency relief and restraining orders, the relief he seeks in the motions is largely duplicative. Specifically, the plaintiff asks: (1) to be transferred to Mendota Prison or Winnebago Prison (Dkt. No. 1 at 1, 2; Dkt. No. 16; Dkt. No. 19 at 1; Dkt. No. 23); (2) to have no contact with the defendants or with the staff of Green Bay Correctional Institution, Waupun Correctional Institution, and Columbia Correctional Institution (Dkt. No. 1 at 2; Dkt. No. 16; Dkt. No. 23); (3) to have a sexual assault examination performed at the University of Wisconsin’s Hospital or Clinic (or some other agreed upon facility) (Dkt. No. 16, Dkt. No. 23); and (4) to have “all of his Marathon County Circuit Court ordered legal property brought to him” (Dkt. No. 16). The plaintiff’s third motion indicates that he is in segregation (although he does not wish to be there). Dkt. No. 19 at 2.

The defendants argue that the plaintiff’s motions should be denied because the plaintiff does not meet the standard for preliminary injunctive relief. The court agrees.

“A preliminary injunction is an extraordinary remedy intended to preserve the status quo until the merits of a case may be resolved.” Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766, 770 (7th Cir. 2001). To obtain preliminary injunctive relief, whether through a temporary restraining order or preliminary injunction, the movant 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 movant shows those three factors are shown, the court must then 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).

In addition, 18 U.S.C. §3626 requires that any “[p]rospective relief in any civil action with respect to prison conditions” be “narrowly drawn, extend[] no further than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right.”

The plaintiff alleges in his complaint that he was raped by both inmates and staff, that he is and has been harassed by staff at Green Bay Correctional, and that he is in danger of being physically assaulted by inmates at Green Bay Correctional. Dkt. No. 14.

In their response to the plaintiff’s motions, the defendants provided a sworn declaration, made under penalty of perjury, from John Kind, the Security Director at Green Bay Correctional. Dkt. No. 32. He is responsible for the overall security of the institution. Id. at ¶3. Kind declares that he is familiar with the plaintiff and the allegations he has made concerning the plaintiff’s safety at Green Bay Correctional. Id. at ¶5. He states that an investigation he ordered failed to substantiate the plaintiff’s allegations. Id. at ¶11. According to Kind, the plaintiff was unable to corroborate his allegations with evidence, witness statements, or his own recollection. Id.[1]

Kind further explains that Green Bay Correctional has a special placement need (SPN) order to keep inmates away from one another, and that inmates can request such an order at any time. Id. at ¶12-13. An SPN was initially entered after the plaintiff complained that he had been sexually assaulted, but ultimately it was not approved because the plaintiff’s claims could not be substantiated. Id. at ¶12. Kind states that the plaintiff never has requested an SPN. Id. at ¶13. Kind also states that in 2016, the plaintiff has raised numerous allegations that he is in danger, all of which Kind has taken seriously. Id. at ¶ 16. He states that each time he ordered an investigation, and he ordered that measures be taken to ensure the plaintiff’s safety. Id. Kind has not been able to substantiate any of the plaintiff’s allegations. Id. The plaintiff has been placed, at times, in temporary lock up and protective confinement while his claims were being investigated. Id. at 3-4.

Finally, Kind explains that Green Bay Correctional does not have the unilateral authority to transfer the plaintiff to Mendota Mental Health Institution or Winnebago Correctional Center. Id. at ¶19. Both institutions are secure mental health facilities operated through the Department of Health Services (DHS). Id. Inmates are sent there for treatment purposes only, and Correction--along with DHS mental health professionals--must recommend such a transfer. Id.

On April 26, 2016, the plaintiff filed a response. Dkt. No. 38. In the response, the plaintiff basically argues the allegations in his complaint-that the defendants failed to protect him in violation of the Eighth Amendment. He discusses in detail the conditions in the prison and the injuries he has suffered. He did not attach any affidavits or other evidence (he did not even attach his own affidavit), or evidence to contradict the statements in Kind’s declaration. The plaintiff argues his case (and argues it in an articulate fashion), but does not establish a basis for injunctive relief.

Based on Kind’s declaration, which directly contradicts the allegations in plaintiff’s complaint, the court finds that the plaintiff has not established that his underlying case has a likelihood of success on the merits. This is not to say that the court is crediting Kind’s statements over the plaintiff’s statements; rather, it is the court’s finding that, at this early stage of the litigation, there is not sufficient evidence supporting either party’s statements over the other. The movant bears the burden of persuasion with regard to each factor in the preliminary injunctive relief analysis, and “if a [movant] fails to meet just one of the prerequisites for a preliminary injunction, the injunction must be ...


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