Talley v. Butler

Filing 10

ORDER denying 1 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Durwyn Talley. IT IS FURTHER ORDERED that within 35 days of the date of this order (on or before November 4, 2014), Plaintiff shall file a compla int, thereby properly initiating an action. If Plaintiff still seeks injunctive relief, he must file a new motion. Failure to file a proper complaint by the prescribed deadline will result in the dismissal of this action for lack of subject matter jurisdiction. Such a dismissal shall count as one of his three allotted strikes under the provisions of 28 U.S.C. § 1915(g). The Clerk is DIRECTED to mail to Plaintiff a Civil Rights Complaint form and instructions for a person in custody. (Amended Pleadings due by 11/4/2014). Signed by Judge J. Phil Gilbert on 9/30/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DURWYN TALLEY, #B-52081,
Plaintiff,
vs.
WARDEN BUTLER,
DIETARY SUPERVISOR, CHAPLAIN,
SALVADOR GODINEZ, and
C/O FITZGERALD,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-976-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Durwyn Talley, currently incarcerated at Menard Correctional Center
(“Menard”), has filed a motion for temporary restraining order and preliminary injunction. (Doc.
1). Among a lengthy list of claims, Plaintiff alleges that he has been denied a kosher diet, free
and regular ink pens, and his television.
Because Plaintiff is a prisoner, the Court must conduct a preliminary review of the
complaint pursuant to 28 U.S.C. § 1915A. However, this is impossible to do because Plaintiff
has not filed a complaint. The Federal Rules of Civil Procedure provide that “[a] civil action is
commenced by filing a complaint with the court.” FED. R. CIV. P. 3. In other words, “the first
step in the action is the filing of the complaint.” Id., Advisory Committee Notes, 1937 Adoption.
Although Plaintiff’s motion for temporary restraining order and preliminary injunction (Doc. 1)
generally describes several potential claims, it cannot suffice as a complaint.1

1

The Court is aware that Plaintiff has two other lawsuits pending in this courthouse, See Talley v. Godinez, 14-cv948-MJR (filed August 29, 2014) and Talley v. Hodge, 11-cv-1001-SCW (filed November 10, 2011). While there is
some overlap between the named defendants and claims in this case and Talley v. Godinez, 14-cv-948-MJR, there is
Page 1 of 4

Although pro se litigants are not held to the same standards applied to licensed attorneys,
Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999), they are not entitled to general dispensation
from the rules of procedure. Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). The requirement
that all plaintiffs must file a complaint is a fundamental rule in our legal system and for good
reason. Without a complaint, the Court cannot ascertain the basis for jurisdiction. See Bell v.
Hood, 327 U.S. 678, 681-82 (1946); Greater Chicago Combine & Ctr., Inc. v. City of Chicago,
431 F.3d 1065, 1069-70 (7th Cir. 2005). Nor can the Court determine what causes of action
Plaintiff intends to assert against which Defendants. Plaintiffs are required to associate specific
defendants with specific claims, so that defendants are put on notice of the claims brought
against them and so they can properly answer the complaint.

See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Here, the caption of the motion for
temporary restraining order and preliminary injunction (Doc. 1) refers only to “Warden Butler, et
al.”2 (Doc. 1, p. 1). The pleading itself does little to clarify which claims are related to which
Defendants. The Court simply cannot consider an application for injunctive relief in the absence
of a complaint, which identifies the person(s) responsible for each asserted claim.
The Court will allow Plaintiff an opportunity to cure the defects in his pleading by filing
a complaint within 35 days of the entry of this order. Plaintiff is reminded that a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). Plaintiff is encouraged to use the Court’s form complaint as he prepares
his pleading.

Plaintiff must clearly identify which claim(s) he is bringing against which

Defendant(s).

In particular, the allegations should demonstrate which Defendant(s) are

enough difference that the Court is proceeding under the assumption that Plaintiff did, in fact, intend to file an
entirely independent and separate action, in part because he filed a motion to proceed in forma pauperis in this case.
See Doc. 2.
2
The Court was able to ascertain the name of the other Defendants only by referring to the caption on the motion to
proceed in forma pauperis. (Doc. 2, p. 1).
Page 2 of 4

personally responsible for any claimed violation of his constitutional rights.
Plaintiff is further reminded that he may not bring several unrelated claims against
different Defendants. Such unrelated matters are subject to severance into one or more separate
actions. See George v. Smith, 507 F.3d 605 (7th Cir. 2007) (unrelated claims against different
defendants belong in separate lawsuits). If Plaintiff wishes to avoid severance, and the filing
fees which shall attach, he should limit his complaint to claims that are factually and legally
related.
Without expressing any opinion on the ultimate merits of Plaintiff’s claims for relief, the
Court concludes that neither a temporary restraining order nor a preliminary injunction should be
issued in this matter at this time.
IT IS THEREFORE ORDERED that the motion for temporary restraining order and
preliminary injunction (Doc. 1) is DENIED without prejudice.
IT IS FURTHER ORDERED that within 35 days of the date of this order (on or before
November 4, 2014), Plaintiff shall file a complaint, thereby properly initiating an action. If
Plaintiff still seeks injunctive relief, he must file a new motion. Failure to file a proper complaint
by the prescribed deadline will result in the dismissal of this action for lack of subject matter
jurisdiction.

Such a dismissal shall count as one of his three allotted “strikes” under the

provisions of 28 U.S.C. § 1915(g).
The Clerk is DIRECTED to mail to Plaintiff a Civil Rights Complaint form and
instructions for a person in custody.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than seven

Page 3 of 4

(7) days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 30, 2014
s/ J. Phil Gilbert
United States District Judge

Page 4 of 4