Daniels v. Deblanc et al

Filing 77

ORDER signed by Judge Pamela Pepper on 8/21/2018. 26 Plaintiff's motion for preliminary injunction/TRO DENIED. 47 Plaintiff's motion for damages DENIED. 68 Plaintiff's motion to amend/correct complaint GRANTED. 69 Plaintiff's motion for order for a pen DENIED. 70 Plaintiff's motion to appoint counsel DENIED without prejudice. (cc: all counsel, via mail to Remo Daniels at Green Bay Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
REMO H. DANIELS,
Plaintiff,
v.

Case No. 17-cv-681-pp

KRISTINA DE BLANC, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
AND TEMOPORARY RESTRAINING ORDER (DKT. NO. 26); DENYING
PLAINTIFF’S MOTION FOR DAMAGES (DKT. NO. 47); GRANTING MOTION
TO AMEND/CORRECT COMPLAINT (DKT. NO. 68); DENYING MOTION FOR
ORDER FOR PEN (DKT. NO. 69) AND DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 70)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, is
proceeding on deliberate indifference claims against the defendants. He alleges
that the defendants failed to protect him from harming himself by giving him a
hard meal tray and leaving his food trap open, and by failing to follow his
behavior management plan when he engaged in self-harm. Dkt. Nos. 1, 52. On
September 8, 2017, the plaintiff filed a motion for a preliminary injunction and
temporary restraining order. Dkt. No. 26. On May 3, 2018, the defendants
responded to the motion at the court’s request. Dkt. No. 56. Since then, the
plaintiff has filed a motion for damages, dkt. no. 47, a motion to amend/correct
his complaint, dkt. no. 68, a motion for an order for a pen, dkt. no. 69, and a
motion asking the court to appoint counsel to represent him, dkt. no. 70.

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I.

MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY
RESTRAINING ORDER (DKT. NO. 26)
The plaintiff filed a three-page motion entitled “Preliminary Injunctions

and Temporary Restraining Order.” Dkt. No. 26. He filed this identical motion
in two other cases he has pending before this court, Daniels v. Foster, et al.,
Case No.17-cv-680, and Daniels v. Foster, et al., Case No.17-cv-1080. In this
single motion, he asks for injunctive relief of different kinds, against different
defendants, under different circumstances.
The motion includes facts about the plaintiff’s attempts to cut himself
with a pen, facts about his attempts to injure himself with a meal tray (the
facts that give rise to this case), facts about sexual abuse, harassment and
retaliation, facts about his pain medication, facts about his behavior
management plan, facts about people lying about him and facts about jail
house lawyers not responding to him because officers aren’t sending out his
mail. At the end of the motion, he asks the court to transfer him to the
Wisconsin Resource Center (“to get the right mental treatment and care”) or to
Green Bay Correctional Institution (“where he can get legal help and mental
health by his old Dr who he got a good report with as his mental health
status”). Dkt. No. 26 at 3.
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.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Crue v. Aiken,
137 F.Supp.2d 1076, 1082 (C.D. Ill. April 6, 2001). To obtain preliminary
injunctive relief, whether through an injunction or a temporary restraining
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order, a plaintiff must show that (1) his underlying case has a reasonable
likelihood of success on the merits, (2) no adequate remedy at law exists, and
(3) he will suffer irreparable harm without the injunction. Wood v. Buss, 496
F.3d 620, 622 (7th Cir. 2007). If he shows those three things, the court then
must balance the harm to each party and to the public interest from granting
or denying the injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013). 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).
With respect to preliminary injunctive relief regarding prison conditions,
Congress has stated that such relief must be “narrowly drawn, extend no
further than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.” 18
U.S.C. §3626(a)(2). The court also must give “substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by
the preliminary relief [.]” Id.
When he filed this motion, the plaintiff was at Waupun Correctional
Institution. Dkt. No. 26 at 3. Since then, the Department of Corrections has
moved him to Green Bay Correctional Institution, one of the places to which
he’d asked the court to move him. Dkt. No. 51. This fact moots—makes
unnecessary—his request for a preliminary injunction or temporary restraining
order.

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Even if the plaintiff remained at Waupun, however, the court would deny
his motion. The plaintiff’s motion did not meet the requirements for injunctive
relief. Particularly, the plaintiff did not demonstrate that he would suffer
irreparable harm if the court did not grant his motion. The plaintiff did not
allege that any of the harm he complains about in his various cases—prison
staff members failing to protect him from self-harm, prison staff members
sexually abusing or harassing him (or failing to protect him from such abuse)—
was on-going. He did not allege that the harm would continue if the court did
not grant him motion. He also did not meet the requirement that he prove he
had no adequate remedy at law. A “remedy at law” means money damages, and
in each of the three cases, the plaintiff asked to be awarded money damages.
These requests show that the plaintiff had an adequate remedy at law.
The plaintiff’s request for the court to order the Department of
Corrections to move him from one facility to another also is beyond the scope of
what the court can order in a narrowly tailored preliminary injunction. See
Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012) (“[T]he PLRA enforces a
point repeatedly made by the Supreme Court in cases challenging prison
conditions: ‘[P]rison officials have broad administrative and discretionary
authority over the institutions they manage.’”) (quoting Hewitt v. Helms, 459
U.S. 460, 467 (1983)). It is up to prison officials—Department of Corrections
officials—to decide where to place inmates; for a federal court to insert itself
into the placement process would be “highly intrusive to the inner workings of
the prison system and would tread upon the DOC's authority over running
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their institution.” Capoeria v. Pollard, Case No. 16-CV-224, 2016 WL 1452398,
at *4 (E.D. Wis. Apr. 13, 2016) (citing Baird v. Hodge, Case No. 13–cv–0376–
MJR–SCW, 2013 WL 6493694, at *8–9 (S.D. Ill. Dec. 10, 2013)).
Because it is moot, and because the plaintiff has not met his burden, the
court will deny his motion for injunctive relief. The court will deny the motion
in all three cases, for the same reasons the court has stated above.
II.

MOTION FOR DAMAGES (DKT. NO. 47)
The plaintiff filed a document he titled “Motion for Damages.” Dkt. No.

47. He filed a similar motion in Daniels v. Foster, et al., Case No. 17-cv-1080.
In the motion, the plaintiff describes an incident that took place on July 27,
2017 (over two months after the date he filed his complaint), in which he
became angry at something one of the corrections officers had done, and began
to cut himself with a pen. Id. at 1. He says that in response to this incident,
some officers denied him medical care, others fabricated conduct reports
against him, others harassed him and others ignored his behavior management
plan. Id. at 1-2. He asks the court to award him $2,700 in damages to
compensate him for his injuries or to punish or deter future misconduct. Id. at
3.
The plaintiff’s complaint already requests $100,000 in damages for
events that took place before the date he filed his complaint. It appears that the
plaintiff’s motion for damages is an attempt to add new defendants, such as
C.O. Hess, to the suit, or to add new claims for events that occurred after the
date he filed his complaint. A motion for damages is not the proper way to add
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defendants, or to bring new claims. If the plaintiff believes different defendants
have committed new violations of his constitutional rights since he filed his
complaint (or even that current defendants have committed new violations), he
must file a new lawsuit containing those claims, against those defendants. He
cannot add new, unrelated claims to this lawsuit, and the only way he can
obtain damages in this lawsuit is if he wins the lawsuit itself.
The court denies the plaintiff’s motion for damages.
III.

MOTION TO AMEND/CORRECT COMPLAINT (DKT. NO. 68)
On page 6 of the plaintiff’s complaint, the plaintiff stated that he harmed

himself on February 18, 2017 at 12:00 a.m. Dkt. No. 1 at 6. He put the same
date on page 2 of his amended complaint. Dkt. No. 43 at 2. In his motion to
amend/correct his complaint, the plaintiff explains that that date was
incorrect. Dkt. No. 68 at 1. He explains that the correct date was February 19,
2017 at 12:00 a.m. Dkt. No. 68 at 1, 2. The court will grant the plaintiff’s
motion. The defendants already have answered the complaint, and the court
has issued a scheduling order. The court will not require the defendants to
amend their answers; it asks all parties to incorporate the corrected date into
any further pleadings they may file.
IV.

“MOTION TO ORDER” (MOTION FOR PEN) (DKT. NO. 69)
The plaintiff filed a motion asking the court to order prison staff to

provide him with a pen. Dkt. No. 69. He filed the identical motion in Daniels v.
Foster, et al., Case No. 17-cv-680. He says that he needs a pen to “address the
Court and to do discovery,” and that GBCI will not allow inmates to use pens.
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Id. The plaintiff is on the Restrictive Housing Unit at GBCI, and the complaint
examiner there has explained that inmates housed in the RSU must use
crayons and rubber pencils because hard plastic and metal (pens) pose a
potential safety risk. Dkt. No. 74 at 2. The court understands that using a
crayon to write legal documents is more difficult, and frustrating, than using a
pen or pencil. But the plaintiff continues to file documents with the court
despite that difficulty. In fact, on July 13, 2018, the court received from the
plaintiff a motion to appoint counsel; it appears that he used both a crayon
and some other writing instrument to write that motion. Dkt. No. 70. GBCI’s
policy is designed to keep inmates—including the plaintiff—safe, see Brim v.
Stevens, No. 18-cv-24-jdp, 2018 WL 2583094, *3-4 (W.D. Wis. Jun. 4, 2018),
and the court will not issue an order violating that policy. The court will deny
the plaintiff’s motion.
V.

MOTION TO APPOINT COUNSEL (DKT. NO. 70)
Finally, the plaintiff filed his second (in this case) motion asking the

court to appoint counsel to represent him. Dkt. No. 70.
As the court has explained before, in a civil case, the court has the
discretion to recruit a lawyer for individuals who are unable to afford one.
Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. §1915(e)(1); Ray
v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First,
the plaintiff must make reasonable efforts to hire a lawyer on his own. Pruitt v.
Mote, 503 F.3d 647, 653 (7th Cir. 2007). Generally, in this district, a plaintiff
must contact at least three lawyers to find a lawyer without the court’s help. He
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then must provide the court with the names of the lawyers he contacted, and
the dates on which he contacted them, along with copies of any letters they
sent to the plaintiff in response to his request for representation.
After the plaintiff demonstrates that he has made those efforts, the court
will decide “whether the difficulty of the case—factually and legally—exceeds
the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at 655). The court looks, not
only at a plaintiff’s ability to try his case, but also at his ability to perform other
“tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id. “[D]eciding whether to recruit
counsel ‘is a difficult decision: Almost everyone would benefit from having a
lawyer, but there are too many indigent litigants and too few lawyers willing
and able to volunteer for these cases.’” Henderson v. Ghosh, 755 F.3d 559, 564
(7th Cir. 2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)).
The plaintiff states that he contacted several attorneys. The court agrees
that he has made a reasonable effort to find an attorney on his own, as Pruitt
requires him to do. The court will not grant the plaintiff’s motion right now,
however, because the court believes he can participate in discovery and
respond to a dispositive motion. The court understands that the plaintiff does
not have the money to hire a lawyer, has no legal training, is in segregation and
struggles with mental illness1. Unfortunately, this is true for many prisoners.
The plaintiff even submitted testing results and other information to support
his claim that he suffers from mental illness. Dkt. No. 75-1. He did not need to
do so; the court believes him.
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Despite these facts, the court has been able to understand the documents the
plaintiff has filed; he has been clear in stating what he wants, and why. The
court finds the plaintiff can handle the initial stages of the case on his own.
The court issued a scheduling order on June 12, 2018, dkt. no. 57, and
right now, the parties are exchanging discovery with each other. The deadline
for completing that discovery is September 10, 2018. Id. The discovery process
allows a plaintiff to ask the defendants to answer interrogatories (written
questions) and produce any reports, records, or documents that the plaintiff
thinks he needs to prove his claims. Fed. R. Civ. P. 33, 34. Next, the
defendants will likely (but not necessarily) file a motion for summary judgment.
If plaintiff believes he cannot handle litigation on his own at that point, he
should renew his motion and the court will consider it at that time.
The court does note that it received a letter from the plaintiff on August
7, 2018, stating that he believes that the defendants deliberately have failed to
provide him with all the video footage he has requested. Dkt. No. 76. The letter
indicates that the plaintiff asked the defendant to provide him with video
footage; they responded that the footage was not saved. Id. at 1. He says that
the defendants knew that they were supposed to save evidence, and that they
knew that the video would show that they did something wrong, which was
“why they don’t want to hand it over to [the plaintiff].” Id. at 2. The plaintiff
says that before he files a motion to compel, he wants the court to know about
the defendant’s response to his request. Id. at 1.

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This court has a local rule governing discovery disputes. Civil Local Rule
37 says, “All motions to compel disclosure or discovery pursuant to Fed. R. Civ.
P. 26 through 37 must be accompanied by a written certification by the [person
filing the motion] that, after [the person filing the motion] in good faith has
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, the parties
are unable to reach an [agreement]. The statement must recite the date and
time of the conference or conferences and the names of all parties participating
in the conference or conferences.” The court understands that an inmate can’t
have a telephone conference, or an in-person conference, with the parties on
the other side, so the court allows inmates to confer with the other side
through letters.
VI.

CONCLUSION
The court DENIES the plaintiff’s motion for preliminary injunction and

temporary restraining order. Dkt. No. 26.
The court DENIES the plaintiff’s motion for damages. Dkt. No. 47.
The court GRANTS the plaintiff’s motion to amend/correct his
complaint. Dkt. No. 68.
The court DENIES the plaintiff’s motion for an order for a pen. Dkt. No.
69.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for the
appointment of counsel. Dkt. No. 70.

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Dated in Milwaukee, Wisconsin this 21st day of August, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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