Garner, Oscar v. Sumnicht, Paul et al

Filing 29

ORDER that plaintiff Oscar Garner has until August 28, 2012 to supplement his proposed findings of fact in support of his motion for preliminary injunction. Defendants will have until September 7, 2012 to respond with additional evidence and facts. Signed by Magistrate Judge Stephen L. Crocker on 8/14/12. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

OSCAR GARNER,
Plaintiff,

ORDER

v.
11-cv-829-slc
PAUL SUMNICHT, BELINDA SCHRUBBE,
CYNTHIA THORPE and MARY GORSKE,
Defendants.

Plaintiff Oscar Garner is proceeding in this case on his claims that defendants violated his
Eighth Amendment and state medical negligence law by failing to provide him with adequate medical
treatment and a special diet for lactose intolerance and irritable bowel syndrome. Before the court
is Garner’s motion for a preliminary injunction in which he seeks an injunction during the pendency
of this case requiring defendants to provide him with a non-dairy food tray or snack bag containing
sufficient calories to meet the required recommended nutritional intake.
Defendants have submitted a perfunctory response in which they only generally assert that Garner
failed to support his proposed findings of fact with citations to admissible evidence, failed to show
that he will suffer irreparable harm in the absence of an injunction and failed to provide expert
testimony to rebut the affidavit of defendant Dr. Paul Sumnicht.
In support of his proposed facts, Garner cites his complaint, which contains the following
signature block:
Respectfully Submitted
I declare under the penalty of Perjury that all statements made herein are true
and correct to the best of my personal knowledge.
______________
Oscar Garner, affiant.

Dated this ___ Day of _____________ 2011.
____________________
Plaintiff, Pro-Se.
Waupun Correctional Inst.
P.O. Box 351
Waupun, Wisc. 53963-0351.

Defendants claim that Garner did not sign the complaint under oath or penalty of perjury
because he signed only the second signature line identifying him as a pro se plaintiff and not the
line indicating that he is an affiant. They also criticize Garner for using the words “to the best
of” to qualify his personal knowledge. I do not find defendants’ arguments persuasive and
conclude that Garner’s signature on the second line in the signature block suffices to verify the
complaint.
A review of the materials submitted by the parties shows that the court does not have
sufficient information to make a ruling at this time. Garner has averred that he is lactose
intolerant and has irritable bowel syndrome. He alleges that because defendants have refused
to place him on a lactose-free diet or treat him with lactose pills, he has suffered severe
abdominal pain, diarrhea, vitamin D deficiency and weight loss over a three-year period.
However, Garner fails to detail how much weight he has lost and why continuing the diet he has
maintained for the past few years will cause him irreparable harm. See Pelfresne v. Village of
Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989) (setting forth four-part standard for preliminary
injunctive relief, including plaintiff’s reasonable likelihood of success on merits, whether plaintiff
will suffer irreparable harm if injunction does not issue, whether threatened injury to plaintiff
outweighs threatened harm of injunction on defendants and whether preliminary injunction
serves public interest).
On the other hand, defendants offer little in the way of a substantive response, relying
only on Sumnicht’s conclusory averment that Garner “is receiving the proper treatment” for
lactose intolerance, including “a sufficient diet.” They offer no explanation of what treatment
Garner is receiving or why a regular diet that includes dairy is sufficient given Garner’s reports
of continuing pain, weight loss and Vitamin D deficiency.

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Accordingly, before deciding whether a hearing is warranted, I am giving both sides an
opportunity to supplement their filings with additional evidence to answer the above questions.

ORDER
IT IS ORDERED that plaintiff Oscar Garner has until August 28, 2012 to supplement
his proposed findings of fact in accordance with this order.

Defendants will have until

September 7, 2012 to respond with additional evidence and facts.

Entered this 14th day of August, 2012.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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