United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION (DKT. NO. 119) AND DENYING WITHOUT
PREJUDICE THE STATE DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 97)
PAMELA PEPPER JUDGE
plaintiff has filed a motion for preliminary injunction, dkt.
no. 119, and defendants Al-Rahrawy, Beahm, Bleder, DeYoung,
Manlove, Marwitz, Moore, Schrubbe and Westphal (the State
Defendants) have filed a motion for summary judgment, dkt.
no. 97. This order addresses those motions.
The Plaintiff's Motion for Preliminary
December 14, 2017, the plaintiff filed a motion for
preliminary injunction. Dkt. No. 119. He asks the court to
order the institution where he is currently housed to deduct
only 25% of his income (instead of the 50% the institution
now takes out) to pay off the judgment entered against him in
2001. He also asks the court to order the
institution to refund to him 25% of all the deductions it has
taken since he started working at the institution. In support
of this request, the plaintiff indicates that due to the
deductions, he does not have money he needs to make copies,
buy postage and pay other expenses for this federal case.
Id. at 2.
preliminary injunction is “an extraordinary
remedy” that a court may grant only on 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
case. 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).
plaintiff alleged in his amended complaint that the
defendants were deliberately indifferent to his serious
medical needs and that the conditions of his confinement
violated the Constitution. Dkt. Nos. 27, 28. The issues the
plaintiff raises in the motion for injunctive relief-that he
does not have enough money to pay expenses in this case
because of the amount the institution deducts to pay a
court-ordered judgment-are not related to the allegations in
his complaint, nor do they involve the defendants in this
case. Because the plaintiff has not established a connection
between the injury claimed in his motion and the conduct
alleged in his amended complaint, the court will deny his
motion for preliminary injunction.
The State Defendants' Motion for Summary
12, 2017, the court granted the plaintiff's motion to
substitute Jesse Laning, Carol Al-Tahrawy and Tammy Westphal
for the Jane Doe #1 placeholder in his amended complaint, and
to substitute Josh Bleiler, Erik Marwitz, Micah Moore and
Joseph Beahm for the John Doe placeholder. Dkt. No. 64 at
1-2. Under the informal service agreement between the
Wisconsin Department of Justice (DOJ) and the court, the
court sent electronic copies of the plaintiff's amended
complaint to the DOJ for service on the newly identified
defendants. Id. at 4.
August 7, 2017, the DOJ filed an answer to the
plaintiff's amended complaint on behalf of defendants
Schrubbe, DeYoung, Bleiler, Marwitz, Price, Schmidt, Moore,
Beahm, Al-Tahrawy and Westphal.
November 6, 2017, the State Defendants filed a motion for
summary judgment. Dkt. No. 97. That motion is now fully
briefed. In considering the State Defendants' motion, the
court noticed, for the first time, that the DOJ had not
answered on behalf of defendant Jesse Laning. After some
investigation by court staff, the court learned that the DOJ
is not representing Laning because he was an independent
contractor, not a Department of Corrections employee. The
consequence is that Laning has not yet been served with the
plaintiff's amended complaint.
interest of efficiency, the court will dismiss the State
Defendants' motion for summary judgment without
prejudice. It will order the Marshals to serve the amended
complaint on Laning. Once Laning responds to the amended
complaint, the court will set a discovery deadline for
Laning only and a dispositive motion deadline for the
parties. Consistent with the new dispositive motion deadline,
the State Defendants may refile their summary judgment
motion, the plaintiff may refile his response and the State
Defendants may refile their reply.
court stresses that it is not reopening discovery as to the
State Defendants, nor is it giving the State Defendants an
opportunity to revise their motion for summary judgment or
the plaintiff an opportunity to revise his response. While it
was the court's failure to recognize that Laning had not
answered that caused this confusion, the confusion is not a
basis for the parties to get a second bite at the apple. The
only reason the court is taking this approach is so that
Laning can catch up and be on the same track as other
parties. If, when the time comes for filing dispositive
motions, either the State Defendants or the plaintiff want to
revise a previously filed brief, the party must file a motion
asking the court for permission to revise the previously
filed brief. The motion must identify the proposed revisions
and explain why the proposed revisions were not included in
the original brief.
court DENIES the plaintiff's motion for