Winston v. Clark et al

Filing 87

ORDER signed by Judge J P Stadtmueller on 1/12/2017 DENYING 58 Plaintiff's Motion for Preliminary Injunction; DENYING 73 Plaintiff's Motion to Strike. (cc: all counsel, via mail to Michael Winston at Columbia Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. WINSTON,
Plaintiff,
v.

Case No. 15-CV-1398-JPS

DAVID A. CLARK,
KEONA GARTH-DICKENS,
JEFFREY ANDRYKOWSKI, LT. REEVES,
LT. RECKLESS, BRANDON LAWLER,
JOSHUA MIKULECKY, D. ADAMS,
D. BLUE, OFFICER BROOKS,
OFFICER SPITTLEMEISTER,
OFFICER COPELAND, D. BRODSKY,
CHRISTINE BECKER, DOROTHY GREER,
FREDERICK PORLUCOS, MAI XIONG,
and TERRI GOUDY

ORDER

Defendants.
The Court takes up two of the plaintiff’s outstanding motions, as they
are ripe for decision. On November 16, 2016, the plaintiff filed a motion for
a preliminary injunction, requesting that the Court order the defendants to
provide him adequate clothing and shoes upon his return to the Milwaukee
County Jail (the “Jail”). (Docket #58 and #59). The plaintiff must establish the
following to warrant entry of the requested preliminary injunction: “that he
is likely to succeed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” D.U. v. Rhoades, 825
F.3d 331, 335 (7th Cir. 2016) (quoting Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008)). “A preliminary injunction ordering [a]
defendant to take an affirmative act rather than merely refrain from specific
conduct,” as is the case here, “is ‘cautiously viewed and sparingly issued.’”

Knox v. Shearing, 637 Fed.Appx. 226, 228 (7th Cir. 2016) (quoting Graham v.
Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)). A preliminary injunction
is “an extraordinary remedy and is never awarded as of right.” Id. (quoting
Winter, 555 U.S. at 24).
The plaintiff has failed to show entitlement to this extraordinary
remedy. First, beyond his speculation that he will return to the Jail “every so
often,” the only concrete date the plaintiff provided for a return visit,
December 8, 2016, has already passed. (Docket #59 at 3; Docket #60 at 1). The
lack of a potential future injury undermines his claim for an injunction.
Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (“Higgason stated in
response to the summary judgment motion that ‘upon his release from
disciplinary segregation [at WVCI], his return to the parent institution from
whence he came [ISP] is a virtual certainty.’ However, such an allegation
does not amount to a ‘showing’ or a ‘demonstration’ of the likelihood of
retransfer; Higgason has not pointed to anything in the record supporting his
estimate of ‘virtual certainty.’”).
Second, in light of the parties’ competing evidence on the merits, the
Court cannot conclude that the plaintiff has shown anything approaching a
likelihood of success on the merits. See (Docket #60, #66, and #67). Finally, the
weakness of the merits issue is viewed in combination with the plaintiff’s
failure to demonstrate that money damages would be an inadequate remedy.
Rhoades, 825 F.3d at 338 (Seventh Circuit’s sliding scale approach considers
the merits and irreparable harm issues together). Because of the nebulous
possibility of his return to the Jail for any extended period, and the cautious
approach required for issuing preliminary injunctions, the Court concludes
that the plaintiff has not shown a likelihood of irreparable harm. The motion
for preliminary injunction will, therefore, be denied.
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On December 12, 2016, the plaintiff filed a motion to strike the
defendants’ answer. (Docket #73 and #74). Motions to strike answers and
affirmative defenses are not favored “and will not be granted unless it
appears to a certainty that plaintiffs would succeed despite any state of the
facts which could be proved in support of the defense.” Williams v. Jader Fuel
Co., Inc., 944 F.3d 1388, 1400 (7th Cir. 1991). The motion must be denied for
two reasons. First, the plaintiff does not identify any specific pleadings in the
answer or affirmative defenses which he believes are deficient, but instead
asserts that a “the court will find that the majority of the defendants[‘]
assertions if not all of them are false pleadings.” Id. The Court rejects this
shotgun approach; it is incumbent upon the plaintiff to make his own
arguments, and the Court will not do his work for him. Second, the plaintiff
has not shown that the defendants can prove no set of facts entitling them to
their defenses. This is especially true in light of the pending summary
judgment briefing, which the plaintiff himself cites. See (Docket #70, #71, #82,
#84, and #85). The motion to strike must also be denied.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for a preliminary
injunction (Docket #58) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the plaintiff’s motion to strike
(Docket #73) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 12th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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