United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
who is incarcerated at Fox Lake Correctional Institution,
filed a pro se complaint alleging that his civil
rights were violated while he was incarcerated. (Docket #1).
Before the Court are several of Plaintiff's motions: (1)
a motion requesting preliminary injunctive relief (Docket
#24); (2) a motion for appointment of counsel (Docket #28);
and (3) a motion extension of time (Docket #36). All three
motions will be denied, for the reasons stated below.
Motion for Preliminary Injunctive Relief
Plaintiff's motion for preliminary injunctive relief, he
asks the Court to enjoin Defendants, their "agents,
" and those acting in concert with them from harassing
him or denying him medical care. (Docket #24 at 1). In his
brief, Plaintiff rehashes the allegations of his complaint
regarding alleged inadequate medical care he received after a
fall in January 2015. (Docket #25 at 1-2). He further claims
that Defendants continue to refuse to provide proper medical
treatment for his neck and back pain allegedly resulting from
the accident. Id. at 2. For instance, Plaintiff
believes he should be seen by a specialist and that
Defendants continuously deny him access to one. Id.
at 2-3. As in his complaint, he also accuses Defendants of
covering up his complaints and fabricating documents to avoid
the appearance that they are denying him care. Id.
Additionally, Plaintiff asserts that he is being harassed by
correctional officers for using a wheelchair. Id. at
3-4. In connection with his motion, he provides his own
affidavit regarding the relevant facts, as well as an
affidavit from his mother, who has apparently made many phone
calls to the institution in an effort to ensure her son
receives medical care. (Docket #26 and #27).
request must be denied. To obtain a preliminary injunction,
Plaintiff must show that: (1) he is likely to succeed on the
merits; (2) he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities
tips in his favor; and (4) an injunction is in the public
interest. D.U. v. Rhoades, 825 F.3d 331, 335 (7th
Cir. 2016). A preliminary injunction is "an
extraordinary remedy and is never awarded as of right."
Knox v. Shearing, 637 F.App'x 226, 228 (7th Cir.
2016). To meet this burden, Plaintiff must make a "clear
showing that [he] is entitled to such relief."
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
request falls short of making the substantial showing
necessary to obtain preliminary injunctive relief. First, it
seeks relief against many unidentified individuals, and many
of those who are identified are not defendants in this case.
The Prison Litigation Reform Act instructs that
"[preliminary injunctive relief must be narrowly drawn,
extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least
intrusive means necessary to correct that harm." 18
U.S.C. § 3626(a)(2). An injunction against the entirety
of the Foxlake Correctional Institution staff does not meet
the motion appears to be an attempt to wedge allegations of
current wrongdoing into an ongoing case. In his complaint,
Plaintiff raises concerns regarding allegedly inadequate
medical care he received after he fell on a loose floor tile.
The medical care (or lack thereof) at issue occurred prior to
the filing of the complaint in July 2016. The instant motion,
however, focuses on conduct occurring long after the filing
of the complaint. See (Docket #25 at 2-3). Indeed,
some of the alleged misconduct at issue in this motion
occurred in late January 2017. Id. at 4. A motion
for preliminary injunctive relief is not a proper method to
litigate new allegations in an ongoing lawsuit, even if they
are related to the current allegations.
although Plaintiff and his mother attest that he needs
additional treatments for his alleged medical conditions,
these affidavits are not based on any medical knowledge or
evidence. They do not substantiate Plaintiff's as-yet
unproven claims that he has received inadequate medical care.
To the contrary, Defendants' submission shows that
Plaintiff is receiving at least some care at this time.
(Docket #30 at 5). Whether this care is so deficient as to
support Plaintiff's claim remains to be seen. The Court
therefore has no indication before it that Plaintiff is
likely to succeed on the merits.
Plaintiff's story about being retaliated against for
using a wheelchair enough to warrant entry of the broad
injunction Plaintiff seeks, particularly since the
allegations here relate entirely to non-defendants.
Id. at 3-4. On this scant evidentiary basis, the
Court is not inclined to insert itself into matters of prison
administration, to which it normally accords substantial
deference. See 18 U.S.C. § 3626(a)(2); see
also Hewitt v. Helms, 459 U.S. 460, 467 (1983)
("[P]rison officials have broad administrative and
discretionary authority over the institutions they
manage."). As a result, the Court must deny
Plaintiff's request for a preliminary injunctive relief.
Motion for Appointment of Counsel
second motion, Plaintiff asks that the Court appoint him
counsel. (Docket #28). As a civil litigant, Plaintiff has no
automatic right to court-appointed counsel. Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997). However,
under 28 U.S.C. § 1915(e)(1), the "court may
request an attorney to represent any person unable to afford
counsel." The court should seek counsel to represent the
plaintiff if: (1) he has made reasonable attempts to secure
counsel; and (2) "'the difficulty of the
case-factually and legally-exceeds the particular
plaintiff's capacity as a layperson to coherently present
it.'" Navejar v. Iyiola, 718 F.3d 692, 696
(7th Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d
647, 655 (7th Cir. banc 2007)).
Plaintiff proffers no reason that he is not capable of
litigating this case on his own at present. Indeed, his
primary argument in favor of his request is that he believes
counsel's aid would increase his chance of success by
helping him conduct discovery and locate witnesses. (Docket
#28 at 1-2). This is plainly insufficient to meet the Seventh
also argues that he is illiterate, has concentration problems
resulting from an old head injury, and is inexperienced in
legal matters. Id. Yet Plaintiff provides no
evidence whatsoever, other than his own lay opinion, that he
suffers from cognitive, behavorial, or other limitations
affecting his ability to present his arguments in a cogent
fashion. (Docket #29 at 1-2). His personal opinion on such
matters does not carry his burden to show a need for counsel.
See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir.
further states that he is currently using the services of a
jailhouse lawyer but that this individual will soon be moved
to another facility or is currently in segregation. (Docket
#28 at 2-3). But whether Plaintiff fared better with a
jailhouse lawyer's help, or whether an actual lawyer
could take up that mantle, is not the operative inquiry; the
question is instead ...