Merriweather v. Cissenero et al

Filing 43

OPINION AND ORDER denying 33 MOTION to Request A Temporary Restraining Order. Signed by Judge Robert L Miller, Jr on 6/27/17. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM DEAN MERRIWEATHER, JR.,
Plaintiff,
v.
SHERRI CISSENERO, et al.,
Defendants.

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CAUSE NO. 3:16-CV-780 RLM

OPINION AND ORDER
William Dean Merriweather, Jr., a prisoner representing himself in this
case, is proceeding on a claim that Sherri Cissenero sexually assaulted him at the
Westville Correctional Facility, and also that Westville’s Superintendent, Mark
Sevier, was deliberately indifferent to that assault. Mr. Merriweather has filed a
motion for a temporary restraining order. He claims that these defendants are
illegally confining him on “bogus” parole violations. He explains that he is going
before the parole board shortly and asks to be released from the State’s custody.
“[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). The moving
party must show that he or she has a reasonable likelihood of success on the
merits, lacks an adequate remedy at law, and will suffer irreparable harm if
immediate relief isn’t granted. Girl Scouts of Manitou Council, Inc. v. Girl Scouts
of U.S., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). Obtaining a TRO requires the
movant to satisfy an even higher standard, by showing “that immediate and

irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” FED. R. CIV. P. 65(b)(1)(A).
Mr. Merriweather doesn’t satisfy the standard for obtaining a TRO. The
issues Mr. Merriweather raises in his motion go well beyond the scope of this case.
This is a Section 1983 civil rights action. It isn’t a habeas corpus action.
State prisoners who want to challenge their convictions, their
sentences, or administrative orders revoking good-time credits or
equivalent sentence- shortening devices, must seek habeas corpus,
because they contest the fact or duration of custody. State prisoners
who want to raise a constitutional challenge to any other decision,
such as transfer to a new prison, administrative segregation,
exclusion from prison programs, or suspension of privileges, must
instead employ § 1983 or another statute authorizing damages or
injunctions – when the decision may be challenged at all, which
under Sandin v. Conner will be uncommon.
Moran v. Sondalle, 218 F.3d 647, 650-651 (7th Cir. 2000) (citations omitted).
Accordingly, to the extent Mr. Merriweather wants to challenge the fact or
duration of his custody, this isn’t the case in which to do so. Because the motion
seeks relief outside the scope of the complaint, Mr. Merriweather can’t obtain relief
here. See Williams v. Evelsizer, No. 12-CV-1082, 2013 WL 3337956, * 1 (July 2,
2013 S.D. Ill.) (holding that a plaintiff is not likely to succeed on the merits when
he seeks injunctive relief outside the scope of his complaint). If he wants to
challenge the fact or duration of his confinement, he must do that in a separate
habeas corpus proceeding, after exhausting his state remedies.1 The court offers

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Notably, there are two possible methods for challenging a parole determination in Indiana
court: by filing a state post-conviction petition, Receveur v. Buss, 919 N.E.2d 1235 (Ind. Ct. App.2010), or
by filing a state habeas petition. Lawson v. State, 845 N.E.2d 185, 186 (Ind. Ct. App. 2006).

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no opinion about the merits of any potential claim he may have or the wisdom of
pursuing this course.
For the foregoing reasons, the court DENIES the motion for a temporary
restraining order (ECF 33).
SO ORDERED.
ENTERED: June 27 , 2017
/s/ Robert L. Miller, Jr.
Judge,
United States District Court

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