Simpson, Willie v. County Of Grant et al

Filing 97

ORDER denying plaintiff's 1 motion for preliminary injunctive relief. Signed by District Judge Barbara B. Crabb on 2/19/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WILLIE SIMPSON,
ORDER
Plaintiff,
11-cv-851-bbc
v.
TIMOTHY HAINES,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Willie Simpson is proceeding on claims challenging his conditions of
confinement and defendant Warden Timothy Haines’s failure to protect him, alleging that
Haines was aware that correctional officers have been pumping toxic chemicals into his cell
and did nothing to stop it. Plaintiff’s complaint included a request for injunctive relief, so
I set briefing on the preliminary injunction motion. In a December 17, 2012 order, I noted
that the proposed findings of fact submitted by the parties “present[ed] a muddled picture,
making it difficult to rule on the motion.” Dkt. #63. I directed plaintiff to submit further
proposed findings, stating as follows:
Perhaps part of the reason the factual picture is so murky at this point
is that under the terms of this court’s procedure for briefing preliminary
injunction motions, plaintiff was not given an opportunity to provide a reply
and thus has not had a chance to directly rebut proposed findings of fact
raised by defendant. Therefore, I will direct plaintiff to submit (1) a reply to
each numbered factual statement made by defendant in response to plaintiff’s
proposed findings of fact; (2) a reply to each of defendant’s own proposed
findings of fact; (3) evidentiary materials supporting these documents; and (4)

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a reply brief.
In addition, I remain concerned that the parties have not fully provided
the court with details surrounding the use of chemical agents, lawfully
authorized or not. Accordingly, I will direct plaintiff to provide (5)
supplemental proposed findings of fact, along with supporting evidence,
providing as much detail as possible regarding each time chemical agents were
used on him. He should explain when each event occurred (if plaintiff does
not know the exact dates, he should explain how often they occurred over a
particular time period), whether the use of chemicals was done to insure
compliance with directives from staff or whether staff was just trying to harm
him, and whether he believes pepper spray or some other, unauthorized,
chemical agent was used on him. Defendant will be given a chance to respond
to plaintiff’s supplemental proposed findings.
Rather that submit the requested materials, plaintiff filed motions to stay briefing on the
preliminary injunction motion and a motion to preserve evidence in the form of the prison’s
video recordings taken outside his cell. In a January 31, 2013 order, I denied the motion to
preserve evidence and gave the parties a final opportunity to submit the proposed findings
of fact discussed in the December 17, 2012 order, stating that “the resolution of this motion
and the attendant discovery issues has taken far too long already.”
Unfortunately, plaintiff has not properly responded to the January 31 order; he did
not provide any of the proposed findings of fact that he was directed to provide in the
December 17 order. All plaintiff has submitted are two affidavits of his own in which he
avers that toxic chemicals were pumped into his cell on January 30 and 31, 2013.
Plaintiff’s failure to comply with this court’s scheduling deadlines might be reason
enough to deny his motion for preliminary injunctive relief under Fed. R. Civ. P. 16(f).
(“On motion or on its own, the court may issue any just orders . . . if a party or its attorney
. . . fails to obey a scheduling or other pretrial order.”) In any case, plaintiff’s repeated

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failure to flesh out the details of his claims means that his motion should be denied on its
own merits. Plaintiff shoulders the burden of establishing a likelihood of success on the
merits of his underlying claims, Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th
Cir. 2006).

Given the dearth of details plaintiff has provided in his original proposed

findings of fact, the fantastical nature of many of his proposed findings (such as that the
ventilation system is designed to remove all oxygen from his cell and that toxic chemicals
were introduced through the intercom system) and plaintiff’s failure to dispute facts
proposed by defendant Haines that he investigated plaintiff’s complaints and found no
evidence to support them, I conclude that plaintiff has failed to show any likelihood of
success on the merits of his claims. His motion for preliminary injunctive relief will be
denied.
Finally, I note that the parties have filed cross motions for summary judgment, with
briefing in process. Plaintiff should be aware that he will not be able to succeed on his claims
if he fails to provide proposed findings of fact detailing the circumstances behind each
alleged use of chemical agents against him. He will also need to respond to the proposed
findings of fact submitted by defendants. If he does not, those facts will be considered
undisputed.

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ORDER
IT IS ORDERED that plaintiff Willie Simpson’s motion for preliminary injunctive
relief, dkt. #1, is DENIED.
Entered this 19th day of February, 2013.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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