Leland v. Hubbard et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 9/22/2011. The Court vacates its order directing service by the Marshals. This case is referred to the Magistrate Judge for entry of a Scheduling Order directing service per the standard procedures and setting a Rule 16 conference date. Plaintiff's petition for a writ of mandamus is denied (d/e 10). Plaintiff's motion for a preliminary injunction or temporary restraining order is denied (d/e 11). (MAS, ilcd)
E-FILED
Thursday, 22 September, 2011 05:05:01 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
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FRED LELAND
Plaintiff,
v.
DR. HUBBARD et al.,
Defendants,
11-CV-3232
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff pursues claims arising from the alleged deprivation of his
prescribed eye drops to treat his glaucoma. The Complaint was sent to
the Marshals for service on August 11, 2011, but service has not yet been
attempted by the Marshals due to scheduling difficulties. At the hearing
on August 22, 2011, Plaintiff confirmed that he is now receiving all of his
eye medication. Accordingly, the Court will save the Marshal’s scarce
resources and direct that service be had through the Court’s regular
procedures.
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On a separate matter, Plaintiff has filed a petition for a writ of
mandamus, asking this Court to order the defendants to instruct him in
the proper use of his eye medication. Plaintiff asserted at the August 22d
hearing that he had not been instructed on the proper amount and
method for administering his eye drops. Illinois Assistant Attorney
General Bianca Chapman offered to ensure that instruction was provided.
Plaintiff contends that he has still not received that instruction.
The Court notes that the attachment to Plaintiff’s Complaint
already sets forth the prescribed amount of medication. If Plaintiff
remains unsure, he should first ask the medical staff to instruct him. If
that does not work, he should file a grievance on the issue and exhaust
his administrative remedies. If the issue remains unresolved, he may
then file a motion with the Court, attaching his grievance and the
responses.
Plaintiff has also filed a motion for a preliminary injunction and
temporary restraining order, alleging that he has suffered retaliation since
filing this lawsuit. He alleges that his cell was shaken down without
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reason, in a manner leaving the cell “looking like a tornado”. During the
shakedown his cellmate’s lamp was destroyed and the cellmate was
placed in segregation. Plaintiff believes that these actions were all in
retaliation for this lawsuit, with the ulterior plan of motivating Plaintiff’s
cellmate to attack Plaintiff. Plaintiff asks for this Court to order a stop to
any further retaliation.
“An equitable, interlocutory form of relief, ‘a preliminary injunction
is an exercise of a very far-reaching power, never to be indulged in except
in a case clearly demanding it.’” Girl Scouts of Manitou Council, Inc. v.
Girl Scouts of the United States of America, 549 F.3d 1079, 1085 (7th
Cir. 2008)(internal quotes and quoted cites omitted). A plaintiff must
demonstrate that: 1) without a preliminary injunction, he will suffer
irreparable harm before the final resolution of his claims; 2) "traditional
legal remedies would be inadequate"; and 3) that he "has some likelihood
of succeeding on the merits of his claim." Id.
Plaintiff has not demonstrated that he will suffer irreparable harm
without an injunction. The alleged retaliatory act occurred once and did
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not bring about any actual or threatened physical harm to Plaintiff. His
fears that the shakedown was a set-up to motivate an assault by his
cellmate are not supported by any evidence. Similarly, his contention
that the shakedown was motivated by retaliation for this lawsuit is only
an allegation at this point. Plaintiff may ultimately be able to prove his
allegations, but there is no proof in the record now to suggest that he has
some likelihood of success on the merits of his retaliation claim. Further,
injunctions must be specific. An injunction ordering the defendants to
stop future undefined retaliation would be too vague. Fed. R. Civ. P.
65(d)(every injunction order must state in “reasonable detail . . . the act
or acts restrained or required.”); 18 U.S.C. § 3626(a)(2)(injunction with
respect to prison conditions must be narrowly drawn). Plaintiff’s motion
will therefore be denied. However, Plaintiff may file a motion to
supplement his pleading under Fed. R. Civ. P. 15(d) in order to add this
retaliation claim, setting forth in detail the incident and the names of the
defendants involved.
IT IS THEREFORE ORDERED:
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1) The Court vacates its order directing service by the Marshals.
This case is referred to the Magistrate Judge for entry of a Scheduling
Order directing service per the standard procedures and setting a Rule 16
conference date.
2) Plaintiff’s petition for a writ of mandamus is denied (d/e 10).
3) Plaintiff’s motion for a preliminary injunction or temporary
restraining order is denied (d/e 11).
ENTERED:
September 22, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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