Perez v. Evoldi et al

Filing 66

ORDER denying 44 Motion for Preliminary Injunction. See attached for details. Signed by Chief Judge Michael J. Reagan on 8/27/2015. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESSE R. PEREZ,
Plaintiff,
vs.
SERGEANT EVOLDI,
SERGEANT EALEY,
C/O SWISHER,
NURSE LANG,
DOCTOR SHEARING, and
JOHN DOE C/O’s #1 – #4,
Defendants.

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No. 15-cv-0042-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Jesse Perez, an inmate at Stateville Correctional Center, brought this 42 U.S.C. § 1983
case against Defendants for excessive force and deliberate indifference to medical needs (Doc. 1).
Currently pending before the Court is Plaintiff’s Motion for a Temporary Restraining
Order/Injunction Relief (Doc. 44). The undersigned denied the motion insofar as Plaintiff requested
a TRO (Doc. 46), and now Defendants have filed responses to Plaintiff’s motion. Based on the
following, the Court DENIES Plaintiff’s motion for injunctive relief.
BACKGROUND
Plaintiff filed a complaint January 15, 2015 alleging that he was assaulted twice while housed at
Menard Correctional Center. As narrowed by the Court’s threshold order, Plaintiff alleges that, on
March 16, 2013, he was informed that he was going to segregation and several officers came to his cell,
handcuffed him behind his back, and escorted him out of his cell (Doc. 6, p. 3). Plaintiff was then
taken to the showers and was forced to face the wall where he was slapped, punched, and elbowed

repeatedly in the head (Id.). Plaintiff was also hit in the thigh and groin. After the assault, requests
for medical attention were refused.
After the assault in the showers, Plaintiff was then escorted to a caged visitation area where he
was again assaulted by Defendants. This time, Plaintiff alleges that Defendants punched Plaintiff in
his hip, side, and back while he remained handcuffed (Doc. 6, p. 3). He was then stripped of his
clothing and provided a segregation jumpsuit (Id.). He was again refused medical attention (Id.).
On March 20, 2013, Plaintiff met Nurse Lang; he saw Doctor Shearling on March 23, 2013.
But Plaintiff alleges that both individuals refused to treat his injuries once they learned how he received
his injuries.
On June 1, 2015, Plaintiff filed his pending motion for temporary restraining order/injunction
relief (Doc. 44). Plaintiff alleges that on May 5, 2015, he asked to speak to a sergeant or lieutenant
about being denied his recreation time and that Defendant Swisher overheard his request and stated
“why don’t you just file a grievance or a lawsuit” in a sarcastic tone and walked away. Swisher then
returned and told Plaintiff he would not get his recreation because he was going to segregation.
Plaintiff further alleges he wrote a grievance against a C/O McCarthy and that McCarthy then
deadlocked Plaintiff’s door to keep him from going to recreation.
Defendants filed responses to Plaintiff’s motion (Docs. 45 and 51). Defendants Eovaldi,
Lang, Swisher, and Ealey filed a response (Doc. 51) indicating that Plaintiff received a disciplinary
ticket from correctional officer Shane Sulser on May 5, 2015 for yelling down from three gallery to one
gallery (Doc. 51-1, p. 1). Sulser indicated that he issued the disciplinary ticket and Swisher was not
involved in issuing the ticket or in the adjustment committee hearing (Id.). (Sulser is not a party to this
lawsuit.) Further, the Court notes that Plaintiff notes (both in his motion and certificate of service)
that he is currently incarcerated at Stateville Correctional Center, rather than Menard Correctional
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Center. Plaintiff asks to be transferred to another facility, and goes so far as to include Stateville as
one of his requested options.
LEGAL STANDARDS
A preliminary injunction is “an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong , 520 U.S. 968, 972 (1997). Accord Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of
right”). To win a preliminary injunction, a plaintiff must show (1) that he is likely to succeed on the
merits, (2) that he is likely to suffer irreparable harm without the injunction, (3) that the harm he would
suffer is greater than the harm a preliminary injunction would inflict on defendants, and (4) that the
injunction is in the public interest. Judge v. Quinn , 612 F.3d 537, 546 (7th Cir. 2010) (citing

Winter, 555 U.S. at 20). The “considerations are interdependent: the greater the likelihood of
success on the merits, the less net harm the injunction must prevent in order for preliminary relief to
be warranted.” Judge , 612 F.3d at 546.
In the context of prisoner litigation, there are further restrictions on courts’ remedial power.
The scope of the court’s authority to enter an injunction in the corrections context is circumscribed by
the Prison Litigation Reform Act (PLRA). Westefer v. Neal , 682 F.3d 679, 683 (7th Cir. 2012).
Under the PLRA, preliminary injunction 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). See also Westefer, 682 F.3d at
683 (the PLRA “enforces a point repeatedly made by the Supreme Court in cases challenging
prison conditions: prison officials have broad administrative and discretionary authority
over the institutions they manage”) (internal quotation marks and citation omitted).
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The Seventh Circuit has described injunctions like the one sought here, where an injunction
would require an affirmative act by the defendant, as a mandatory preliminary injunction. Graham v.

Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). Mandatory injunctions are “cautiously
viewed and sparingly issued,” since they require the court to command a defendant to take a particular
action. Id . (citing Jordan v. Wolke , 593 F.2d 772, 774 (7th Cir. 1978)). See also W.A. Mack,

Inc. v. Gen. Motors Corp. , 260 F.2d 886, 890 (7th Cir. 1958) (“A preliminary injunction does
not issue which gives to a plaintiff the actual advantage which would be obtained in a final
decree.”).
ANALYSIS
Plaintiff is not entitled to the relief he requests. First, he has not shown a likelihood of
success on the merits. Plaintiff alleges that he is being retaliated against by Defendant Swisher
because of Plaintiff filing his current lawsuit. However, the events which make up his current
allegations against Swisher happened long after Plaintiff filed his current suit. Plaintiff is alleging new
events against Swisher that were not alleged in his complaint, namely, that Swisher is retaliating against
him. Thus, his claim that he is being retaliated against for filing his lawsuit is a new claim which he
must bring to the Court in a new case (once he has properly exhausted his available administrative
remedies, of course). See George v. Smith , 507 F.3d 605, 607 (7th Cir. 2007). Further, there is no
evidence Swisher was involved in issuing the disciplinary ticket against Plaintiff. In fact, the only
evidence on record indicates the ticket was issued by Shane Sulser, who provided an affidavit swearing
Swisher did not issue the ticket (Doc. 51-2).
To the extent that Plaintiff is alleging that a C/O McCarthy is retaliating against him, the Court
notes that McCarthy is not a party to this suit. If Plaintiff wishes to pursue a claim and injunction
against McCarthy, he will have to file a new lawsuit.
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Finally, the Court notes that Plaintiff is not currently at Menard Correctional Center. Rather,
his motion indicates that he is at Stateville Correctional Center. There is no indication he will be
transferred back to Menard. Thus, Plaintiff is not currently in proximity to the individuals that
Plaintiff alleges have retaliated against him. A prisoner’s request for injunctive relief is rendered moot
by his release from prison, Koger v. Bryan , 523 F.3d 789, 804 (7th Cir. 2008), and a request for
injunction targeting another facility is moot unless Plaintiff “can demonstrate that he is likely to be
retransferred.” Higgason v. Farley , 83 F.3d 807, 812 (7th Cir. 1996)(citing Moore v. Thieret, 862
F.2d 148, 150 (7th Cir. 1988)). Allegations of a likely retransfer may not be based on mere
speculation. Id. To the extent that Plaintiff has been transferred, his request for injunctive relief is
moot. 1
CONCLUSION
Accordingly, the Court DENIES Plaintiff’s motion for temporary restraining
order/injunction relief (Doc. 44).
IT IS SO ORDERED.
DATED: August 27, 2015.

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s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge, U.S. District Court

The Court notes that while Plaintiff indicates in his motion that he is currently at Stateville Correctional Center, he is
listed on the IDOC website as an inmate at Menard Correctional Center. It is not clear from the website whether
Plaintiff is being transferred to Stateville permanently or temporarily. In any event, Plaintiff is not entitled to the
injunctive relief he requests because he seeks an injunction based on new claims which are not currently before the
Court.
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