United States District Court, E.D. Wisconsin
WILLIAM T. ANTEPENKO, JR., Plaintiff,
MARK DOMROIS, Defendant.
DECISION AND ORDER DENYING PLAINTIFF'S AMENDED
PETITION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION (DKT. NO. 18) AND DENYING PLAINTIFF'S AMENDED
MOTION TO USE FUNDS FROM HIS RELEASE ACCOUNT TO PURCHASE
DENTAL ADHESIVE (DKT NO. 19)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, a Wisconsin state prisoner who is representing
himself, is proceeding on a deliberate indifference claim
against defendant Dr. Mark Domrois, based on his allegations
that the defendant failed to address the plaintiff's many
complaints about his ill-fitting and painful dentures. Dkt.
Nos. 1, 9. On January 9, 2017, the plaintiff filed a motion
for temporary restraining order (TRO) and/or preliminary
injunction. Dkt. No. 14. The court received an amended
version of the motion on February 16, 2018. Dkt. No. 18. In
early February, the plaintiff also filed a motion for order
to use funds in his release account to purchase dental
adhesive. Dkt. No. 16. The court received the amended version
of that motion on February 16, 2018. Dkt. No. 19. The court
will deny both motions.
Amended Motion for TRO/Preliminary Injunction
original petition for a TRO and preliminary injunction, the
plaintiff asked the court to issue a TRO and grant
preliminary injunctive relief “for the following issues
stated above.” Dkt. No. 14. At 2. He explained that
while housed at Oshkosh Correctional Institution, he could
not “receive any dental treatment or care that may come
up, ” because he had two cases pending against the
institution, and that this would create a conflict of
interest. Id. at 2. He asserted that the
Health Services Unit and dental services were in the same
building, and said that being at Oshkosh put him “at an
unnecessary risk of mistreatment by institution staff.”
Id. He concluded by asking the court to order that
he be transferred to another medium security institution.
Id. In the amended motion (which the plaintiff
captioned “motion for reconsideration, ” even
though the court had not yet ruled on the original motion),
the plaintiff took out the paragraph numbers, and added a
certification at the end stating that the facts in the
amended motion were true and correct to the best of his
knowledge. Dkt. No. 18.
obtain preliminary injunctive relief, whether through a TRO
or a preliminary injunction, a plaintiff must show that (1)
his underlying case has a reasonable 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 he shows
those three things, the court then balances 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).
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Natural Res.
Def. Council, 555 U.S. 7, 22 (2008). A preliminary
injunction is appropriate only if it seeks relief of the same
character sought in the underlying suit. Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (“[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.”); Neuroscience, Inc. v. Forrest, No.
12-cv-813-bbc, 2013 WL 6331348, at *1 (W.D. Wis. Dec. 5,
2013) (denying motion for preliminary injunction because
it raised issues outside scope of complaint).
court will deny the plaintiff's amended motion. Even if
the plaintiff's underlying case has a reasonable
likelihood of success on the merits (and the court does not
decide that today), and even if the plaintiff had no adequate
remedy at law (in other words, if money would not make things
right for him), he has not demonstrated that he will suffer
irreparable harm if the court does not issue injunctive
relief. He has not provided the court with any information
supporting his claim that he cannot receive medical or dental
care while this case is pending. The plaintiff does not
indicate that anyone at the institution, including the
defendant, made comments or otherwise suggested that health
care providers will refuse to treat his medical and dental
needs. As far as the court can tell, the plaintiff is
assuming that because he has sued Dr. Domrois, OCI will
refuse to treat him. An assumption is not enough to show
addition, the plaintiff seeks very broad injunctive relief.
With respect to preliminary injunctive relief regarding
prison conditions, Congress has mandated that such 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). The court must give “substantial
weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the
preliminary relief [.]” Id.
plaintiff's request for a transfer to a different
institution is beyond the scope of what the court can order
in any narrowly tailored preliminary injunction. See
id.; Westefer v. Neal, 682 F.3d 679, 683 (7th Cir.
2012) (“[T]he PLRA enforces a point repeatedly
made by the Supreme Court in cases challenging prison
conditions: ‘[P]rison officials have broad
administrative and discretionary authority over the
institutions they manage.'”) (quoting
Hewitt v. Helms, 459 U.S. 460, 467 (1983)). For the
court to step in and tell the Department of Corrections where
to place inmates would be “highly intrusive to the
inner workings of the prison system and would tread upon the
DOC's authority over running their institution.”
Capoeria v. Pollard, Case No. 16-CV-224, 2016 WL 1452398,
at *4 (E.D. Wis. Apr. 13, 2016) (citing
Baird v. Hodge, Case No. 13-cv-0376-MJR-SCW, 2013 WL
6493694, at *8-9 (S.D. Ill.Dec. 10, 2013)). If,
in the future, the plaintiff could demonstrate that he had
medical or dental issues and that the facility was refusing
to treat those issues, he could seek much more
narrowly-tailored relief, such as an order directing the
staff to provide treatment.
court will deny the plaintiff's amended motion for
Motion to Use Release Account to Purchase Dental
original motion, the plaintiff asked the court to permit him
to withdraw $29.84 from his release account so that he could
buy four tubes of denture adhesive at the commissary. Dkt.
No. 16. The plaintiff explained that he did not have
sufficient funds to buy the adhesive, and that without it,
his dentures do not stay in his mouth, making it difficult
for him to eat and talk. Id. He also states that he
needs to keep his dentures in his mouth to prevent his lower
teeth from cutting into his upper gums, causing pain and
bleeding. Id. The amended motion again removes the
paragraph numbers, and adds a certification at the end. Dkt.
court understands the plaintiff's desire to purchase
dental adhesive, but it will not order the institution to
allow the plaintiff to use funds in his release account for
that purpose. Under Wis. Admin. Code DOC §309.466(2),
“Prior to release, the department may authorize the
disbursement of release account funds for purposes that will
aid the inmate's reintegration into the community or that
will reimburse the [Department of Corrections] for
incarceration costs . . . .” Buying dental adhesive
does not fall into the category of aiding the plaintiff's
reintegration into the community, nor does it reimburse the
DOC for incarceration costs. The regulation does not
authorize the use of release account funds to buy medical or
in this district have relied on the Prison Litigation Reform
Act (PLRA) to permit prisoners to use release account funds
to pay portions of their filing fees. See e.g., Guman v.
Bailey, No. 09-CV-106, 2009 WL 1687578, at *1-2 (E.D.
Wis. June 15, 2009); Doty v. Doyle, 182 F.Supp.2d
750, 751-52 (E.D. Wis. 2002); Spence v. McCaughtry,
46 F.Supp.2d 861 (E.D. Wis. 1999). But that law does not
authorize courts to allow prisoners to use release account
funds for medical or hygiene supplies, either. Because the
court could not find a law or rule that would allow it to let
a prisoner release account ...