Smith v. Foster et al

Filing 113

ORDER signed by Judge Pamela Pepper on 5/22/2017 DENYING 93 Plaintiff's motion for emergency preliminary injunction and/or temporary restraining order; DENYING 107 Plaintiff's motion for an extension of time; DENYING 109 Plaintiff's motion for leave to file excess pages; and DENYING 112 Plaintiff's motion for a 30-day postponement. (cc: all counsel; by US Mail to plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DERRICK L. SMITH,
Plaintiff,
v.

Case No. 16-cv-84-pp

BRIAN FOSTER, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S MOTION FOR
EMERGENCY PRELIMINARY INJUNCTION AND/OR TEMPORARY
RESTRAINING ORDER (DKT. NO. 93), DENYING HIS MOTION FOR AN
EXTENSION OF TIME (DKT. NO. 107), DENYING HIS MOTION FOR LEAVE
TO FILE EXCESS PAGES (DKT. NO. 109), AND DENYING HIS MOTION FOR
A 30-DAY POSTPONEMENT (DKT. NO. 112)
____________________________________________________________________________
I.

The Plaintiff’s Motion for an Extension of Time and for Leave to File
Excess Pages
On January 3, 2017, the defendants filed a motion for summary

judgment. Dkt. No. 69. After receiving several extensions of time, the plaintiff
filed his response materials on March 20, 2017. Dkt. Nos. 97, 100. On April 3,
2017, the defendants filed their reply brief in support of their motion for
summary judgment. Dkt. No. 103. They also responded to the plaintiff’s
additional proposed findings of fact, which the plaintiff included with his
response materials.1 Dkt. No. 104.

 The defendants noted that the plaintiff did not label Dkt. No. 100 as “Proposed
Findings of Fact.” They acknowledged, though, that a portion of that document
appeared to be proposed findings of fact. Out of an abundance of caution, the
defendants’ treated the document as proposed findings of fact, and replied to
those additional facts as required by Civ. L.R. 56(b)(3)(B).   
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On April 21, 2017, the plaintiff filed two motions. The first asked that the
court extend the deadline for his response to the defendants’ reply brief. Dkt.
No. 107. The second asked that the court allow him to file a response that
exceeded the page limits in the local rules. Dkt. No. 108. The court will deny
both motions.
Civil L.R. 56 sets out the briefing procedures for a motion for summary
judgment. The rule specifically allows for the filing of a motion and materials in
support of that motion; the opposing party’s materials in opposition to the
motion; and the moving party’s materials in reply—a motion, a response and a
reply. Once the moving party files the reply, briefing is complete and the motion
is ready for the court’s decision.
Here, the parties finished briefing the defendants’ motion for summary
judgment on April 3, 2017, when the defendants filed their reply. The rules do
not authorize the plaintiff to file anything else, nor does anything in the
plaintiff’s most recent motions suggest that further briefing. The court will deny
the plaintiff’s request for additional time to respond to the defendants’ reply
materials, and his request to exceed the page limitations. The defendants’
motion for summary judgment is ready for the court’s decision. The court will
not accept any further pleadings from the parties on this motion.
II.

The Plaintiff’s Motion for Preliminary Injunction
On March 14, 2017, the plaintiff filed an emergency motion for injunctive

relief and restraining order. Dkt. No. 93. The plaintiff states that his “health,
safety, and quality of life are being abused, under color of law by [Marathon
County] Jail staff.” Dkt. No. 94 at 2. He asks the court to order that he be
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transferred to Mendota or Winnebago Correctional Institutions, that his
medical needs be addressed at the University of Wisconsin Hospital and pain
clinic, that “opposing parties” repair or replace his laptop and return his legal
materials and personal property, that he be allowed to keep his legal materials
in his cell, and that no Marathon County Jail staff have any contact with him.
Id. at 12-13.
On April 4, 2017, the defendants responded to the plaintiff’s motion.
They argue that the plaintiff makes no allegations relating to the underlying
lawsuit or against any of the defendants in the underlying lawsuit. The
allegations in the plaintiff’s motion are against Marathon County Jail staff, who
are not parties to this lawsuit (the plaintiff sued the warden and certain staff
members at Waupun Correctional Institution). The defendants argue that the
court has no jurisdiction to grant the relief the plaintiff seeks.
On April 21, 2017, the plaintiff filed a motion asking for additional time
to file a reply brief in support of his motion for a preliminary injunction. Dkt.
No. 107. He filed a second motion asking, in part, that the court allow him to
exceed the page limitation for his reply brief. Dkt. No. 109.
The court will deny the plaintiff’s motion for a preliminary injunction.
The purpose of a preliminary injunction or temporary restraining order is “to
preserve the relative positions of the parties until a trial on the merits can be
held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis
added); Crue v. Aiken, 137 F.Supp.2d 1076, 1082 (C.D. Ill. April 6, 2001). A
motion for preliminary injunction is not a proper avenue to pursue additional
claims against different defendants. See Wilson v. Gaetz, Case No. 14-cv-71,
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2015WL4999852, at *1-2 (S.D. Ill. Aug. 21, 2015) (citing Fed. R. Civ. P.
65(d)(2)).
The plaintiff’s motion complains about actions by individuals who are not
parties to this lawsuit, which means that the court does not have jurisdiction
over those individuals. In any event, according to the Wisconsin Department of
Corrections website, the plaintiff recently moved from Marathon County Jail to
Dodge Correctional Institution. See http://offender.doc.state.wi.us/lop/ (last
visited on April 24, 2017). Given that he is no longer at Marathon County Jail,
his request for relief from the alleged wrongdoing by individuals at that facility
is moot.
Because the court is denying the plaintiff’s motion for a preliminary
injunction and/or temporary restraining order, it will also deny as moot the
plaintiff’s motion for an extension of time to file a reply brief in support of his
motion and his motion seeking leave to exceed the page limitation.
III.

The Plaintiff’s Motion for 30-Day Postponement Under Imminent
Danger
On May 18, 2017, the court received a change-of-address notice from the

plaintiff. Dkt. No. 111. That notice indicates that the plaintiff now has been
transferred back to Waupun Correctional Institute (where the events he
complained of in his complaint allegedly occurred). The same day, the court
received a motion from the plaintiff. Dkt. No. 112. The motion is captioned
motion for 30-day postponement, but it is not clear what the plaintiff wants the
court to postpone. The plaintiff is not under any deadlines; the defendants’
motion for summary judgment is fully briefed, and nothing remains now but

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for the court to rule on it. In the motion, the plaintiff indicates that he believes
that bad things will happen to him at Waupun (because he has alleged that
bad things happened to him when he was there in the past). He asks the court
for the same relief he requested in the motion for preliminary injunction, along
with some additional relief.
As the court has noted, there is nothing for the court to postpone. There
is nothing for the plaintiff to do right now but wait for the court’s decision on
the motion for summary judgment.
IV.

Conclusion
The court DENIES the plaintiff’s motion for emergency preliminary

injunction and/or for a restraining order. Dkt. No. 93.
The court DENIES the plaintiff’s motion for an extension of time. Dkt No.
107.
The court DENIES the plaintiff’s motion for leave to file excess pages.
Dkt. No. 109.
The court DENIES the plaintiff’s motion for a thirty-day postponement.
Dkt. No. 112.
Dated in Milwaukee, Wisconsin this 22nd day of May, 2017.

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