Olson v. Meli

Filing 44

ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that the plaintiffs 33 motion for temporary injunction is DENIED. IT IS FURTHER ORDERED that the plaintiffs 35 motion to compel production of documents is DENIED. (cc: all counsel, plaintiff) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY EDWARD OLSON,
Plaintiff,
v.

Case No. 14-CV-425

ANTHONY MELI,
Defendant.
ORDER
Plaintiff Jeffrey Edward Olson, who is incarcerated at Waupun Correctional
Institution (WCI), filed this action pro se pursuant to 42 U.S.C. § 1983. On June 18, 2014,
United States Magistrate Judge Patricia J. Gorence granted Olson’s petition for leave to
proceed in forma pauperis on an Eighth Amendment claim against WCI Security Director
Anthony Meli based on allegations that the disruptive behavior of another inmate has
disrupted Olson’s sleep for over ten months and Meli refuses to remedy the situation.
The case was reassigned to this Court on September 4, 2014.
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
the matter arises under federal statutes. Olson has consented to United States

magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73
(E.D. Wis.).
Olson has filed two motions: one for preliminary (he calls it temporary)
injunctive relief and another to compel the production of documents. With regard to
his first motion, Olson asserts that his prison cell has been “randomly” searched five
times since he filed this action, far more than the normal one “random” search which
occurs every nine or ten months. Olson alleges that Meli is responsible for the harassing
searches, including one in which his documents pertaining to this case were searched,
and is attempting to intimidate him into withdrawing his case. He seeks an order
directing Meli to cease his harassing and intimidating actions.
Meli contends that injunctive relief is not warranted because he is not harassing
and intimidating Olson. According to Meli, Olson’s cell has been searched only twice
since this lawsuit was initiated and both were random cell searches. Regardless, Meli
claims that he has not ordered institution staff to search Olson’s cell in an attempt to
harass and intimidate him nor has he sought to disrupt any of Olson’s legal papers with
regard to this case. In reply, Olson acknowledges that his “face card” states that only
two random cell searches have been conducted since he filed this suit, but asserts that
additional searches were done but not recorded.
A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.

Def. Council, 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(per curiam)). A preliminary injunction is appropriate only if it seeks relief of the same
character sought in the underlying suit and deals with a matter presented in that
underlying suit. Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (citing De
Beers Consol. Mines v. U.S., 325 U.S. 212, 220 (1945)); see also Omega World Travel v. TWA,
111 F.3d 14, 16 (4th Cir. 1997); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per
curiam) (“[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.”) (citing Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir.
1975)); Alston v. City of Madison, 2014 U.S. Dist. LEXIS 106317, 2 (W.D. Wis. Aug. 4, 2014)
(“[T]he general rule is that a plaintiff may not obtain injunctive relief on issues that do
not relate to the claims asserted in the complaint.”).
In his complaint, as noted above, Olson seeks damages related to the fact that he
was housed nearby a disruptive inmate. Olson’s complaint does not present any claim
related to allegedly unlawful searches of his cell or any claim for equitable relief, much
less a claim seeking to enjoin searches of Olson’s cell.
Because the complaint does not seek such relief, there is no scenario whereby the
court, in entering judgment following a resolution of the merits of Olson’s complaint,
would include in that judgment a provision barring Meli, and most certainly not some
person or entity that is not a party to this action, from conducting searches of Olson’s

cell. Consequently, this court may not grant Olson the temporary injunctive relief he
seeks. The causal connection that Olson alleges, i.e. that the “random” searches of his
cell are the result of his having filed the present lawsuit, is an insufficient connection to
permit the court to consider granting relief in this matter as it presently stands. See
Atakpu v. Lawson, 2006 U.S. Dist. LEXIS 99983 (S.D. Ohio July 19, 2006) (recommending
denial of plaintiff inmate’s motion for a temporary injunction regarding alleged
retaliatory harassment from prison personnel resulting from plaintiff having brought
suit against prison personnel because alleged harassment was unrelated to the denial of
medical care claims contained in the complaint), rec. adopted, 2006 U.S. Dist. LEXIS 85898
(S.D. Ohio Nov. 28, 2006); Shaka v. Ryan, 2014 U.S. Dist. LEXIS 140899, 3-4 (D. Ariz. Oct.
3, 2014) (denying inmate’s request for temporary injunction because request for
typewriter to prepare legal papers was unrelated to underlying medical claim); Curreri
v. Babue, 2011 U.S. Dist. LEXIS 44917, 7-8 (D. Ariz. Apr. 19, 2011) (denying plaintiff
inmate’s request for a temporary injunction barring jail personnel from searching,
outside of the inmate’s presence, the inmate’s legal material related to his claim he was
denied medical treatment). Therefore, Olson’s motion for a preliminary injunction must
be denied.
With regard to Olson’s motion to compel, Rule 37 of the Federal Rules of Civil
Procedure provides that a party is permitted to file a motion to compel discovery where
another party fails to respond to interrogatories or requests for production of

documents. See Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv).

However, the movant “must

include a certification that [he] has in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.”

Fed. R. Civ. P. 37(a)(1).

Additionally, Civil Local Rule 37

requires the movant to “recite the date and time of the conference or conferences and
the names of all parties participating in the conference or conferences.” A motion to
compel discovery pursuant to Rule 37(a) is addressed to the sound discretion of the trial
court. EEOC v. Klockner H & K Machines, Inc., 168 F.R.D. 233, 235 (E.D. Wis. 1996)
(citation omitted).
In support of his motion to compel, Olson asserts that he recognizes the need to
protect inmates and is willing to allow that the requested documents be reviewed in
camera for a judicial determination of relevance. It is not clear what documents Olson is
referring to. In any event, he has not included a certification that he attempted to
resolve this issue with Meli prior to filing his motion to compel. The plaintiff should
attempt to resolve this discovery issue with Meli. If he is unable to do so, he may file a
new motion to compel the production of documents, specifying what documents he
seeks that Meli refuses to produce, along with a statement of what efforts he made to
resolve the discovery dispute with Meli.
IT IS THEREFORE ORDERED that the plaintiff’s motion for temporary
injunction (ECF No. 33) is DENIED.

IT IS FURTHER ORDERED that the plaintiff’s motion to compel production of
documents (ECF No. 35) is DENIED.
Dated at Milwaukee, Wisconsin this 30th day of October, 2014.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge