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Henry v. Lutsey

United States District Court, E.D. Wisconsin

January 14, 2020

MARCUS HENRY, Plaintiff,
v.
JEAN LUTSEY, et al ., Defendants.

          ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.

         Pro se plaintiff Marcus Henry filed a motion to compel, a motion to amend statement of claim, and a motion for appointment of counsel. (ECF Nos. 20, 22-23.)

         1. Motion to Compel

         Henry asks for “an order that the plaintiff be moved to another prison.” (ECF No. 20.) He explains that various individuals at the institution at which he is currently housed (Green Bay Correctional Institution) have exposed him to “imminent danger.” (Id., ¶¶ 1-2.) The court will construe Henry's “motion to compel” as a mandatory preliminary injunction. See Taylor v. Sutterer, 2019 WL 6701917, at *3 (S.D. Ill.Dec. 9, 2019) (noting that a motion that requires an affirmative act by the defendants is construed as a “mandatory preliminary injunction.”).

         Mandatory preliminary injunctions are “cautiously viewed and sparingly issued” because they require the court to command the defendants to take a particular action. Taylor, 2019 WL 6701917, at *3 (internal citations omitted). To obtain a mandatory preliminary injunction, Henry must establish 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. Id. (citing Turnell v. CentiMark Corp., 796 F.3d 656, 661 (7th Cir. 2015)). If Henry shows those three factors, the court then balances the harm to each party and to the public interest from granting or denying the injunction. Id.

         In the prison context, the court's authority to issue an injunction is circumscribed by the Prison Litigation Reform Act (“PLRA”). Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). 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). The PLRA “enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: prisons officials have broad administrative and discretionary authority over the institutions they manage.” Westefer, 682 F.3d at 683.

         In his motion for injunctive relief Henry makes four allegations: (1) Correctional Officer Van Lanen threatens to place him in segregation on a daily basis in retaliation for him filing this lawsuit; (2) Nurses Matushak, Recla, Bost, Alsteen, Blair, and Staeven constantly deny him medical attention even though they are all aware that he has heart problems; (3) Alsteen has given him the wrong medication on at least one occasion since he filed this lawsuit and “that is what this case is all about;” and (4) his mail is “being thrown away in an attempt to hinder [him] and get this suit dismissed.” (ECF No. 20, ¶¶ 1-3.)

         Regarding allegations one, two, and four, Henry cannot establish a reasonable likelihood of success on the merits. See Mason v. Freeman, 2019 WL 2173480, at *2 (S.D. Ill. May 20, 2019) (noting that a prisoner-plaintiff cannot establish a reasonable likelihood of success on the merits when the allegations in an injunction “do not pertain to the issues in this case” and the individuals in the injunction “are not named as defendants in this case”). The court allowed Henry to proceed with an Eighth Amendment claim that Heumpfner refused to send him to the hospital after receiving the wrong inmate's medication and that Lutsey imposes a “custom or policy” of using correctional officers to distribute medication when she knows that it makes inmates sick. (ECF No. 9 at 5.) Van Lanen, Matushak, Recla, Bost, Alsteen, Blair, and Staeven are not defendants in this case, so the court cannot issue an injunction against them regarding retaliation, mail tampering, or other unrelated medical care issues. Henry can address these problems through the institution's Inmate Complaint Review System. If that is unsuccessful, he can file a separate lawsuit against them.

         His third allegation, that Alsteen gave him the wrong medication at least once since he filed this lawsuit, does relate to the official capacity claim against Lutsey. However, Henry does not allege any harm that he suffered as a result of the one occasion on which Alsteen allegedly gave him the wrong medication. Nor does he explain why it is reasonable to conclude that Alsteen will in the future give him the wrong medication. Absent any such information, no basis exists for concluding that Henry will suffer irreparable harm unless he is transferred to another institution. Therefore, the court will deny Henry's “motion to compel.”

         2. Motion to Amend Statement of Claim

         Henry asks to add Warden Scott Eckstein, Security Director John Kind, and Segregation Captain Jay Van Lanen as defendants in this lawsuit. (ECF No. 22.) He explains that these individuals are supervisors who are “responsible” for the conduct of correctional officers and staff at the institution. (Id.)

         The court will deny the motion for two reasons. First, Henry did not attach a proposed amended complaint to his motion, as required by Civil Local Rule 15(a) (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended, and may not incorporate any prior pleading by reference.”).

         Second, even if Henry had attached a proposed amended complaint, the proposed amendment would be futile. See Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992) (“[A]n amendment may be futile when it fails to state a valid theory of liability or could not withstand a motion to dismiss.”). Section 1983 limits liability to public employees who are personally responsible for a constitutional violation. Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). Eckstein, Kind and Van Lanen are not responsible for the conduct of others ...


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