Proby v. Russell et al

Filing 95

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Preliminary Injunction and Temporary Restraining Order (Doc. No. 84) and Plaintiffs Second Motion for Preliminary Injunction and Temporary Restraining Order (Doc. No. 90) are bo th DENIED. IT IS FURTHER ORDERED that Plaintiffs Motion to Reopen Case and Add Defendant Brian Schmultz (Doc. No. 91) is DENIED. IT IS FURTHER ORDERED that Plaintiffs renewed Motion for Appointment of Counsel (Doc. No. 92) is DENIED. Signed by District Judge John A. Ross on 3/31/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE PROBY, JR.,

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Plaintiff,
v.
TERRY RUSSELL, et al.,
Defendants.

Case No. 4:14-cv-1620

MEMORANDUM AND ORDER
This matter is before the Court on four motions: Plaintiff’s Motion for Preliminary
Injunction and Temporary Restraining Order (Doc. No. 84), Plaintiff’s Second Motion for
Preliminary Injunction and Temporary Restraining Order (Doc. No. 90), Plaintiff’s Motion to
Reopen Case and Add Defendant Brian Schmultz (Doc. No. 91), and Plaintiff’s renewed motion
for the appointment of counsel (Doc. No. 92). The Court will address these motions in turn.
Motions for Temporary Injunction
Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order (Doc. No.
84) alleges that his legal mail is being destroyed and opened outside his presence; that his access
to the law library and legal materials has been curtailed; and that his personal funds have been
blocked and/or frozen. Plaintiff’s Second Motion for Preliminary Injunction and Temporary
Restraining Order (Doc. No. 90) reiterates these claims.
“A party moving for a preliminary injunction must necessarily establish a relationship
between the injury claimed in the party’s motion and the conduct asserted in the complaint.”
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). Moreover, “whether a preliminary
injunction should issue involves consideration of (1) the threat of irreparable harm to the movant;
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(2) the state of balance between this harm and the injury that granting the injunction will inflict
upon other parties litigant; (3) the probability that [the] movant will succeed on the merits; and
(4) the public interest.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995) (citation and quotation
marks omitted). Preliminary relief is intended to “preserve the status quo and prevent irreparable
harm until the court has an opportunity to rule on the lawsuit’s merits.” Devose, 42 F.3d at 471.
“In the prison context, a request for injunctive relief must always be viewed with great caution
because judicial restraint is especially called for in dealing with the complex and intractable
problems of prison administration.” Goff, 60 F.3d at 520.
Plaintiff is not entitled to injunctive relief because he has not proffered evidence that his
alleged grievances include a threat of irreparable harm. Indeed, the Court’s records indicate that
Plaintiff has filed numerous motions with the Court, and has sent correspondence to the clerk,
suggesting that his mail is not being destroyed and that no irreparable harm is occurring.
Similarly, Plaintiff’s claim that he is being denied access to legal materials is undermined by his
consistently demonstrated ability to submit pleadings to the Court that include citation to legal
authority.
Public interest also does not support injunctive relief at this time. As it has explained in a
previous order, the Court does not lightly intrude on the state’s administration of its prisons.
Granting Plaintiff’s requested relief, without more evidentiary support, would harm Defendants’
ability to continue carrying out their day-to-day responsibilities in running the prison. See Hewitt
v. Helms, 459 U.S. 460, 467 (1983).
Thus, a preliminary injunction is not warranted. Instead, Plaintiff’s complaints could be
handled through the prison’s internal grievance system; it appears Plaintiff has failed to exhaust
that remedy. Alternatively, if Plaintiff feels these grievances are sufficient to constitute a new

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legal action, he may file them as such. But Plaintiff’s allegations are unsupported by evidence of
irreparable harm and are attenuated from the claims asserted in Plaintiff’s complaint, and a
temporary restraining order or preliminary injunction is not favored by the public interest. For
all of these reasons, both motions will be denied.
Motion to Add Defendant
Next, the Court considers Plaintiff’s Motion to Reopen Case and Add Defendant Brian
Schmultz (Doc. No. 91). Rule 20(a) of the Federal Rules of Civil Procedure allows a plaintiff to
join a person as a defendant if the liability between the new and existing defendants would be
joint, several, or in the alternative, if the plaintiff’s rights to relief against the new defendant
“aris[es] out of the same transaction . . . and if any question of law or fact common to all
defendants will arise in the action.” “[A]bsent a good reason for denial—such as undue delay,
bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of the amendment—leave to amend
should be granted.” Thompson–El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
Plaintiff recently moved to dismiss Brian Schmultz as a defendant. (Doc. No. 76.) Now
Plaintiff seeks to add Brian Schmultz back to the lawsuit. In his accompanying memorandum,
Plaintiff argues that Schmultz should be added back to the lawsuit because of retaliatory actions
allegedly taken by Schmultz since his dismissal from the suit. Thus, it does not follow that
Plaintiff’s grievances with Schmultz arise out of the same transaction as the rest of his lawsuit,
which is largely focused on Defendants’ purported denial of Plaintiff’s due process rights during
several prison discipline incidents.

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Plaintiff is free to assert any claims rooted in transactions occurring after Schmultz’s
dismissal from the instant suit in a separate legal action. However, Plaintiff asserts no legitimate
basis for adding Schmultz to this lawsuit. Therefore, Plaintiff’s Motion to Add Defendant Brian
Schmultz will also be denied.
Motion for Appointment of Counsel
Finally, Plaintiff again moves for the appointment of counsel.

As the Court has

previously explained, “[a] pro se litigant has no statutory or constitutional right to have counsel
appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). When
determining whether to appoint counsel for an indigent litigant, the Court considers relevant
factors, such as the complexity of the case, the ability of the pro se litigant to investigate the
facts, the existence of conflicting testimony, and the ability of the pro se litigant to present his or
her claim. Id.
Just as it has previously explained, the Court determines that this case is neither factually
nor legally complex. Moreover, Plaintiff’s ongoing filings with the Court, including his own
affirmative motions, as well as his responses to opposing counsel’s motions, indicate that
Plaintiff is able to adequately present his claims. Consequently, Plaintiff’s motion for counsel
will be denied at this time.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Preliminary Injunction and
Temporary Restraining Order (Doc. No. 84) and Plaintiff’s Second Motion for Preliminary
Injunction and Temporary Restraining Order (Doc. No. 90) are both DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Reopen Case and Add
Defendant Brian Schmultz (Doc. No. 91) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s renewed Motion for Appointment of
Counsel (Doc. No. 92) is DENIED.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March, 2016.

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