Irving v. Wells et al

Filing 17

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk of Court shall resend to plaintiff copies of the Court's Memorandum and Order and Order of Partial Dismissal dated June 11, 2018 (ECF Nos. 12 and 13) along with a copy of this Memorandum and Order. IT IS FURTHER ORDERED that the Clerk of Court shall resend copies of the Courts Memorandum and Order and Order of Partial Dismissal dated June 11, 2018 (ECF Nos. 12 and 13) and a copy of this Memorandum and Order to Office of Missouri Att orney General, Litigation Division, Post Office Box 899, Jefferson City, Missouri 65102. IT IS FURTHER ORDERED that the Attorney General shall respond on behalf of defendants Wells, Wilhite, Clinton, and Armstrong to plaintiff's motion for tempo rary restraining order and "motion requesting immediate and effective binding actions against defendant to halt retaliations and conspiring to harm" within seven (7) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that if defendants to not file responses to plaintiff's motions as directed, the Court will issue orders on plaintiff's motions without the benefit of any response from defendants. Response to Court due by 7/2/2018. Signed by District Judge Stephen N. Limbaugh, Jr on 6/25/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WILLIAM E. IRVING,
Plaintiff,
v.
UNKNOWN WELLS, et al.,
Defendants.

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No. 1:18-CV-47 JMB

MEMORANDUM AND ORDER
This matter is before the Court on pro se plaintiff William E. Irving’s “motion requesting
immediate and effective binding actions against defendant to halt retaliations and conspiring to
harm.” For the following reasons, the Court will order defendants Unknown Wells, Travis
Wilhite, Alex Clinton, and Lorene Armstrong to respond to plaintiff’s motion and his previously
filed motion for temporary restraining order within seven days of the date of this Memorandum
and Order.
Background
On April 26, 2018, plaintiff filed an amended complaint under 42 U.S.C. § 1983, alleging
violations if his First, Eighth, and Fourteenth Amendment rights by various officials at Southeast
Correctional Center (“SECC”). He filed a motion for temporary restraining order on June 6,
2018.
On June 11, 2018, the Court conducted an initial review of plaintiff’s amended complaint
under 28 U.S.C. § 1915(e), and issued process on defendants Wells, Wilhite, Clinton, and
Armstrong. Liberally construed, the Court found plaintiff had stated a plausible claim that these
defendants were conspiring with inmates in various attempts to facilitate an attack on plaintiff.

The Court ordered these defendants to respond to plaintiff’s amended complaint and his motion
for temporary restraining order within the time provided by the applicable provision of Federal
Rule 12(a) and the Local Rules of the United States District Court for the Eastern District of
Missouri.
On June 19, 2018, plaintiff filed the instant motion, titled as a motion requesting
immediate and effective binding actions against defendant to halt retaliations and conspiracies to
harm. In his motion, plaintiff states that in retaliation for filing various inmate grievances and
this lawsuit, officials at SECC are tampering with and obstructing his incoming and outgoing
mail and “trashing and deliberately losing [inmate resolution requests]/grievances.” He alleges
also that he has an “immediate and binding need for safe housing,” and has repeatedly requested
to be housed in a one-man cell. He states defendants have denied these requests, and are
purposefully placing him in two-man cells “to have prisoners waiting to carry out second party
assaults on him.” Plaintiff states defendants know of his enemies and are purposefully trying to
move him near his enemies to be harmed.
Based on plaintiff’s motion, it appears he has not received a copy of this Court’s
Memorandum and Order and Order of Partial Dismissal dated June 11, 2018, in which the Court
issued process on defendants Wells, Wilhite, Clinton, and Armstrong and ordered these
defendants to respond to plaintiff’s amended complaint and temporary restraining order.
Discussion
Defendants’ response to plaintiff’s amended complaint is not due until August 10, 2018.
Plaintiff submitted his motion for temporary restraining order to the Court without awaiting
initial review of his amended complaint under 28 U.S.C. § 1915(e) and without adequately
giving notice to defendants. Under Federal Rule of Civil Procedure 65(b)(1):

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The court may issue a temporary restraining order without written or oral notice
to the adverse party or its attorneys only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before
the adverse party can be heard in opposition, and
(B) the movant’s attorney certifies in writing any efforts made to give the notice
and the reasons why it should not be required.
It does not clearly appear from specific facts shown by plaintiff’s affidavit or amended
complaint that immediate and irreparable injury, loss, or damage will result to plaintiff before the
adverse parties or their attorneys can be heard in opposition. The allegations in plaintiff’s
complaint occurred in January and February, 2018 and he has been placed in protective custody
twice and afforded two protective custody hearings. The last specific actions plaintiff complains
of occurred on February 15, 2018. Moreover, plaintiff has not certified in writing the reasons
why notice should not be required. As a result, the Court did not grant plaintiff’s ex parte
motion for temporary restraining order, but ordered defendants to respond to the motion. After
review of plaintiff’s “motion requesting immediate and effective actions against defendant to halt
retaliations and conspiring to harm,” the Court will order defendants to respond to this motion
and the motion for temporary restraining order within seven days of the date of this
Memorandum and Order.
Because it appears plaintiff is not receiving his mail from this Court, the Court will order
the Clerk of Court to resend the Memorandum and Order and the Order of Partial Dismissal
dated June 11, 2018 (ECF Nos. 12 and 13) and a copy of this Memorandum and Order to
plaintiff. The Clerk shall also resend copies of these documents, along with a copy of this
Memorandum and Order to the Office of Missouri Attorney General, Litigation Division, Post
Office Box 899, Jefferson City, Missouri 65102.

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The Attorney General shall respond to

plaintiff’s motion for temporary restraining order and “motion requesting immediate and
effective binding actions against defendant to halt retaliations and conspiring to harm” within
seven days of the date of this Order.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall resend to plaintiff copies of
the Court’s Memorandum and Order and Order of Partial Dismissal dated June 11, 2018 (ECF
Nos. 12 and 13) along with a copy of this Memorandum and Order.
IT IS FURTHER ORDERED that the Clerk of Court shall resend copies of the Court’s
Memorandum and Order and Order of Partial Dismissal dated June 11, 2018 (ECF Nos. 12 and
13) and a copy of this Memorandum and Order to Office of Missouri Attorney General,
Litigation Division, Post Office Box 899, Jefferson City, Missouri 65102.
IT IS FURTHER ORDERED that the Attorney General shall respond on behalf of
defendants Wells, Wilhite, Clinton, and Armstrong to plaintiff’s motion for temporary
restraining order and “motion requesting immediate and effective binding actions against
defendant to halt retaliations and conspiring to harm” within seven (7) days of the date of this
Memorandum and Order.
IT IS FURTHER ORDERED that if defendants to not file responses to plaintiff’s
motions as directed, the Court will issue orders on plaintiff’s motions without the benefit of any
response from defendants.
Dated this 25th day of June, 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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