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Allen v. Richardson

United States District Court, W.D. Wisconsin

April 27, 2018

RAEQUON DEWRELL ALLEN, Plaintiff,
v.
DEPUTY RICHARDSON Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Pro se plaintiff Raequon Dewrell Allen is proceeding in this civil lawsuit against defendant Deputy Richardson on a Fourteenth Amendment excessive force claim arising from an incident that took place on January 28, 2016. There are several motions currently pending before the court that this opinion resolves.

         I. Defendant's motion to compel (dkt. #43)

         Richardson seeks an order compelling Allen to endorse a medical authorization form that would permit her to review records from Allen's health care providers from the past six years. Because Allen claims to have suffered damages allegedly caused by Richardson during the January 28, 2016, incident that is the subject of this lawsuit, Richardson seeks to review Allen's medical records from the past 6 years in preparation of a defense to any claim of actual injury. Despite receiving several extensions of time to respond, Allen has failed to file an opposition brief explaining why he continues to refuse to comply with Richardson's request.

         While Allen's medical records from the past six years are not central to Allen's claims, Richardson's request to review them are reasonable. Therefore, the court will direct Allen to return signed and fully completed the requested medical authorization, by May 4, 2017. While this is a “direction, ” not an “order, ” Allen should be aware that his failure to disclose this information will likely result in the court precluding him from seeking damages for physical or mental injury.[1]This is because defendants are entitled to review medical records both before and after the incident for comparison purposes.[2]Allen may choose how he wishes to proceed, but any further failure to comply with defendant's request will effectively be a choice to forego monetary damages in this case.

         II. Plaintiff's motion for injunction and restraining order (dkt. #30)

         Allen is currently incarcerated by the Bureau of Prisons at Big Sandy. On September 14, 2017, Allen filed a motion for an injunction barring Richardson from harassing him or taking any retaliatory action against him, explaining concern about returning to the Dane County Jail for resentencing in this court. As an initial matter, plaintiff's motion is procedurally defective because it does not comply with this court's procedure for obtaining preliminary injunctive relief, a copy of which will be provided to plaintiff with this order. Under these procedures, a plaintiff must file and serve proposed findings of fact that support his claims, along with any evidence that supports those findings. Before the merits of plaintiff's motion for preliminary injunction will be considered, he must first comply with these basic requirements.

         Even if plaintiff's motion were not facially flawed, it would likely fail on the merits at this time. To prevail on a motion for a preliminary injunction, plaintiff must show: (1) a likelihood of success on the merits of his case; (2) a lack of an adequate remedy at law; and (3) an irreparable harm that will result if the injunction is not granted. Lambert v. Buss, 498 F.3d 446, 451 (7th Cir. 2007). Plaintiff has yet to show a likelihood of success on the merits of his claims. In order to do so, he would have to submit actual evidence in support his claim against Richardson. He would also have to submit more detailed evidence as to why he would be harmed absent an injunction imposed against her. Given that it does not appear that Allen is likely to be housed in the Dane County Jail in the near future, it does not appear that such evidence exists. For all these reasons, plaintiff's motion for injunctive relief will be denied without prejudice to resubmission.

         III. Plaintiff's motion to amend (dkt. #35)

         On October 10, 2017, Allen also filed a motion to amend his complaint to include additional constitutional claims related to the January 28, 2016, incident. In addition to his claim for excessive force, the plaintiff would now claim violation of his Fourteenth Amendment rights to due process and equal protection, as well as unspecified rights under the Ninth, Tenth and Fifth Amendments. Allen provides no basis for asserting a due process claim or for his other claims under the Ninth, Tenth and Fifth Amendments, so the court will deny his motion to do so, but his request to add a Fourteenth Amendment equal protection claim requires more discussion.

         A “person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual.” Herro v. City of Milwaukee, 44 F.3d 550, 552 (7th Cir. 1995). At the pleading stage in particular, a plaintiff is required at minimum to allege: (1) “that he is a member of a protected class”; (2) “that he is otherwise similarly situated to members of the unprotected class”; and (3) “that he was treated differently from members of the unprotected class.” Brown v Budz, 398 F.3d 904, 916 (7th Cir. 2005) (quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)).

         Allen seeks to add an equal protection claim because he believes that Richardson assaulted him because he is black. In his complaint, however, Allen alleged only that Richardson assaulted him because of his status as a prisoner, and the only facts Allen has pled regarding the incident are that Richardson yelled “stop resisting” and assaulted him. As a result, Allen's new conclusory claim lacks any factual allegation suggesting that Richardson treated similarly situated, non-black prisoners differently. This is simply insufficient to support an equal protection clause claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”).

         Allen also claims that Dane County police officers have shown a policy of systematic discrimination against African American prisoners, but he may not proceed on this basis either. Setting aside the fact that Richardson would not be the proper defendant for this type of claim, and assuming that the court were disposed to add the Dane County Sheriff as an additional defendant, Allen still has not pleaded sufficient facts to infer that the Dane County's Sheriff's Office “adopted and implemented a policy not for a neutral . . . reason but for the purpose of discriminating on account of race, religion, or national origin.” Iqbal, 556 U.S. at 676-77. Since a ...


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