Walker v. Wisconsin Department of Corrections et al

Filing 41

DECISION AND ORDER signed by Judge Lynn Adelman on 2/13/14 granting 32 Motion for Extension of Time; denying 24 Motion for Reconsideration; denying 25 Motion for Preliminary Injunction/Motion for TRO. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TONY D. WALKER,
Plaintiff,
v.

Case No. 13-CV-3

EDWARD WALL, DEIRDRE MORGAN,
CATHY JESS, CHARLES FACKTOR,
AMY BASTEN, MICHAEL BAENEN,
JESSICA LEGOIS, and MICHAEL MOHR,
Defendants.

DECISION AND ORDER
Plaintiff has filed his second motion for reconsideration of the court’s screening
order to the extent that it dismissed his due process claim. He contends that he should
have been permitted to proceed on the claim based on allegations that the Department of
Corrections failed to provide him with notice of the time, date, or place of the disciplinary
hearing that resulted in a disposition of sixteen days cell confinement. I dismissed this
claim in the Screening Order and reviewed the dismissal in a subsequent order denying
plaintiff’s first motion for reconsideration. (Docket 23 at 3-6.) The instant motion does not
raise any new arguments and, therefore, I will deny the motion.
Next, plaintiff has filed a motion for preliminary injunction/temporary restraining
order. Plaintiff contends that defendants continue to deny him access to needed legal
materials and postage. As a result, he was unable to timely file his initial brief in support
of his petition for habeas corpus in Walker v. Baenen, Case Number 13-CV-652-WEC

(E.D. Wis.). Plaintiff also asserts that was unable to submit his initial partial appeal fee in
Walker v. Hamblin, Appeal Number 13-2796 (7th Cir.).
A party seeking a preliminary injunction must demonstrate that he is reasonably
likely to succeed on the merits, that he is experiencing irreparable harm that exceeds any
harm his opponent will suffer if the injunction issues, that he lacks an adequate remedy at
law, and that the injunction would not harm the public interest. Coronado v. Valleyview
Pub. Sch. Dist. 365-U, 537 F.3d 791, 794-95 (7th Cir. 2008) (citing Christian Legal Soc’y
v. Walker, 453 F.3d 853, 859 (7th Cir. 2006)). “If the moving party meets this threshold
burden, the district court weighs the factors against one another in a sliding scale analysis
. . . which is to say the district court must exercise its discretion to determine whether the
balance of harms weighs in favor of the moving party or whether the nonmoving party or
public interest will be harmed sufficiently that the injunction should be denied. Id.; see
Joelner v. Vill. of Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004). The factors considered
in ruling on a temporary restraining order mirror those on motions for a preliminary
injunction. Wright, Miller, Kane, Marcus, & Steinman, 11A Federal Practice and Procedure
Civil § 2951 (2d ed.).
In this case, plaintiff is proceeding on a claim that defendants denied him access
to the courts because they denied him a legal loan and, as a result, his certiorari petition
challenging procedural irregularities of a conduct report was dismissed because he was
unable to submit the necessary documents. Currently pending is defendants’ motion for
summary judgment for failure to exhaust administrative remedies.
Here, plaintiff has not shown that he is reasonably likely to succeed on the merits
of the access to the courts claim upon which he is proceeding in this case. His motion for
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preliminary injunction/temporary restraining order allegations do not pertain to this case.
To the extent that plaintiff seeks to proceed on new claims based on the allegations set
forth in the instant motion, any such amendment would be futile. Based on electronic court
filings, I take judicial notice of the fact that plaintiff filed his initial brief in Eastern District
Case Number 12-CV-652 on December 16, 2013, and that on October 25, 2013, the initial
partial appeal fee was waived in Seventh Circuit Case Number 13-2796. Accordingly,
plaintiff’s motion will be denied.
Finally, plaintiff has filed a motion for a 20-day extension to file his response to
defendants’ motion for summary judgment. I will grant this request.
THEREFORE, IT IS ORDERED that plaintiff’s motion for reconsideration (Docket
24) is DENIED.
IT

IS

FURTHER

ORDERED

that

plaintiff’s

motion

for

preliminary

injunction/temporary restraining order (Docket 25) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time (Docket 32)
is GRANTED.
Dated at Milwaukee, Wisconsin, this 13th day of February, 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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