Rivera, Nataneal v. Jimenez, George, et al

Filing 1

ORDER that this case is SEVERED from case 12-cv-240-bbc in accordance with Fed. R. Civ. P. 20. Plaintiff's "Amended Verified Complaint," will proceed as a case no. 12-cv-476-bbc. Plaintiff is directed to make an initial partial payment of $6.01 for case no. 12-cv- 476-bbc. Signed by District Judge Barbara B. Crabb on 7/5/2012. (jef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NATANAEL RIVERA,
ORDER
Plaintiff,
12-cv-240-bbc
v.
MACHEAL SCHULTZ, CORRECTIONAL OFFICER MINNING,
CORRECTIONAL OFFICER PETERSON, GEORGE JIMINEZ,
PETE ERICKSON, MACHEAL BAENEN, TOMES COMPBALL,
CORRECTIONAL OFFICER COMMEING, CORRECTIONAL OFFICER NUEMKE,
CORRECTIONAL OFFICER ROUSE, CORRECTIONAL OFFICER TINGLY,
SARAH COOPER and JOHN DOES 1-12,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Natanael Rivera has filed two complaints in this case, one that he calls
“Verified Amended Complaint under 42 U.S.C. § 1983" and one that he calls “Amended
Verified Complaint under 42 U.S.C. § 1983.” In a letter accompanying the complaints,
plaintiff says that he would like to “combine” them “into one,” dkt. #4, but I denied this
request in an order dated June 11, 2012 because the two complaints involve different
incidents involving different defendants and joining them would violate Fed. R. Civ. P. 20.
Accordingly, I gave plaintiff the following instructions:
1. Plaintiff Natanael Rivera may have until June 25, 2012, to identify for the
court whether he wishes to proceed with his “Verified Complaint under 42
U.S.C. § 1983" or his “Amended Verified Complaint under 42 U.S.C. § 1983”
under the number assigned to this case. Plaintiff must pick one and only one
of these complaints to proceed under case no. 12-cv-240-bbc.
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2. Plaintiff may have until June 25, 2012, to advise the court whether he
wishes to (1) pursue the other complaint under a separate case number; or (2)
dismiss the other complaint without prejudice so that he may file it at a later
date.
3. If plaintiff dismisses the other complaint voluntarily, he will not owe a
second filing fee. If he chooses to pursue the other complaint, he will owe a
separate $350 filing fee and will be assessed another initial partial payment.
Dkt. #14 at 3-4.
In response to that order, plaintiff says first that the two complaints represent “a
series of transactions of sexual misconduct and misconduct in public office” and that prison
staff “have uniformly acted to punish the plaintiff.” Dkt. #15 at 1-2. Although he does not
say so explicitly, plaintiff seems to be making the argument that the two complaints may be
joined under Rule 20. I disagree. Both complaints involve searches of plaintiff’s person, but
that is not enough to satisfy Rule 20 because the incidents involved different defendants and
occurred several months apart. To the extent plaintiff means to allege that both incidents
are part of a larger conspiracy to “punish” him, his conclusory allegation that defendants
acted “uniformly” is not enough to proceed under that theory. Cooney v. Rossiter, 583 F.3d
967, 971 (7th Cir. 2009).
Alternatively, plaintiff says that he wishes to proceed with both complaints in
separate lawsuits. Accordingly, I will sever the case. Plaintiff’s “Verified Complaint” will
proceed as case no. 12-cv-240-bbc and I will screen that complaint in a separate order in
accordance with 28 U.S.C. §§ 1915(e)(2) and 1915A.

Plaintiff’s “Amended Verified

Complaint” will proceed as case no. 12-cv-476-bbc. I will screen that complaint as soon as
plaintiff submits another initial partial payment. Because plaintiff submitted a trust fund
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account statement less than three months ago, he does not need to submit another one.
Plaintiff accompanied his complaints with several motions: (1) “Motion for
Restraining Order,” dkt. #6; (2) “Motion to Amended Eighth Amendment Violations of
Deliberate Indifferent,” dkt. #10; (3) “Motion to Amending Restraining Order,” dkt. #11;
and (4) “Motion for Appointment of Counsel,” dkt. #12. Because these motions relate to
issues in both cases, I will address them in this order.
In plaintiff’s “motion for restraining order,” dkt. #6, he seeks a transfer to another
facility. I am denying this motion for two reasons. First, plaintiff failed to comply with this
court’s procedures, which require parties seeking injunctive relief to submit proposed
findings of fact. I have included a copy of those procedures with this order.
Second, plaintiff has not met the standard for obtaining preliminary injunctive relief.
"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). To obtain preliminary
injunctive relief, plaintiff must show some likelihood of success on the merits, that he has
no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is
denied and that an injunction is in the public interest. Ezell v. City of Chicago, 651 F.3d
684, 694 (7th Cir. 2011); Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010). In this case,
plaintiff’s motion is little more than another recitation of the allegations in the complaints.
Because he has not made any showing that he is likely to succeed on his claim or that he will
suffer irreparable harm in the absence of an injunction, I am denying the motion.

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(Ordinarily, I would not consider a request for preliminary injunctive relief until screening
the complaint. However, because it is clear that plaintiff has failed to meet the standard for
obtaining such relief regardless whether he has stated a claim upon which relief may be
granted in either case, I see no reason to delay a decision until after screening.)
Plaintiff’s “motion to amen[d] the restraining order,” dkt. #11, raises entirely new
allegations against other prison officials about an alleged failure to provide mental health
treatment. Because these allegations are outside the scope of both complaints, I cannot
consider them. If plaintiff believes that officials are denying him mental health care in
violation of the Eighth Amendment, he will have to file a separate lawsuit about that issue.
Plaintiff’s “motion to amended Eighth Amendment violation of deliberate
indifferent,” dkt. #10, seems to be nothing more than a request to proceed on a claim under
the Eighth Amendment. I am denying this motion because it is unnecessary for plaintiff to
identify a particular legal theory in his complaint. When I screen his complaints, I will
consider whether his factual allegations state a claim upon which relief may be granted under
any legal theory, including the Eighth Amendment.
I am denying plaintiff’s motion for appointment of counsel, dkt. #12, for two
reasons. First, plaintiff has failed to show that he has made a good faith effort to find
counsel on his own, as he is required to do under the law of this circuit. Jackson v. County
of McLean, 953 F.2d 1070 (7th Cir. 1992). Although plaintiff has provided three rejection
letters, dkt. #16, one of them is dated nearly one year before the incident giving rise to this
lawsuit; another one is from a public interest organization that represents only prisoners in

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the southern United States. Accordingly, I cannot find that plaintiff has made reasonable
efforts to find counsel on his own.
Second, appointment of counsel is appropriate in those relatively few cases in which
it appears from the record that the legal and factual difficulty of the case exceeds the
plaintiff's demonstrated ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 645-55 (7th
Cir. 2007). It is too early to determine whether plaintiff meets that standard. Romanelli
v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010) (upholding decision to deny appointment of
counsel early in case).
Plaintiff lists several reasons for his belief that counsel is necessary, but many of these
apply to the majority of pro se litigants (limitations imposed by plaintiff’s imprisonment, the
existence of disputed facts) or are speculative at this stage in the case (inability to conduct
adequate discovery, insufficient time in the law library). In addition, plaintiff says that he is
mentally ill, but he has submitted little evidence to show that any mental illness is preventing
him from litigating this case on this own. Although he states that he had help preparing his
materials, he may continue to receive help from other prisoners.
If I conclude that plaintiff has stated a claim upon which relief may be granted with
respect to either of his complaints, the court will hold a preliminary pretrial conference shortly
after the defendants file an answer.

At the conference, plaintiff will be provided with

information about how to use discovery techniques to gather the evidence he needs to prove his
claims as well as copies of this court's procedures for filing or opposing dispositive motions and
for calling witnesses. If later developments in the case show that plaintiff is unable to represent
himself, he is free to renew his motion for appointment of counsel at that time.
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ORDER
IT IS ORDERED that
1. This case is SEVERED in accordance with Fed. R. Civ. P. 20. Plaintiff Natanael
Rivera’s “Verified Complaint,” dkt. #1, will proceed as case no. 12-cv-240-bbc. Plaintiff’s
“Amended Verified Complaint,” dkt. #2, will proceed as a case no. 12-cv-476-bbc.
2. I will screen case no. 12-cv-240-bbc in accordance with 28 U.S.C. §§ 1915(e)(2)
and 1915A in a separate order.
3. Plaintiff is directed to make an initial partial payment of $6.01 for case no. 12-cv476-bbc. Once plaintiff submits that payment, I will screen the complaint in that case as
well.
4. Plaintiff’s “Motion for Restraining Order,” dkt. #6, “Motion to Amended Eighth
Amendment Violations of Deliberate Indifferent,” dkt. #10, “Motion to Amending
Restraining Order,” dkt. #11 and “Motion for Appointment of Counsel,” dkt. #12, are
DENIED.
Entered this 5th day of July, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PROCEDURE TO BE FOLLOWED ON MOTIONS FOR INJUNCTIVE RELIEF
NOTE WELL: It is the duty of the parties to present to the
court, in the manner required by this procedure, all facts and
law necessary to the just, speedy and inexpensive determination
of this matter. The court is not obliged to search the record for
facts or to research the law when deciding a motion for
injunctive relief.
I. NOTICE
A.

It is the movant’s obligation to provide actual and immediate notice to the opposing
party of the filing of the motion and of the date set for a hearing, if any.

B.

The movant must serve the opposing party promptly with copies of all materials
filed.

C.

Failure to comply with provisions A and B may result in denial of the motion for this
reasons alone.

II. MOVANT’S OBLIGATIONS
A.

It is the movant’s obligation to establish the factual basis for a grant of relief.
1.

In establishing the factual basis necessary for a grant of the motion, the movant must
file and serve:
(a)
(b)

A statement of record facts proposed by the movant; or

(c)

A statement of those facts movant intends to prove at
an evidentiary hearing; or

(d)
2.

A stipulation of those facts to which the parties agree; or

Any combination of (a), (b) and (c).

Whether the movant elects a stipulation or a statement of proposed facts, it is the
movant’s obligation to present a precisely tailored set of factual propositions that

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movant considers necessary to a decision in the movant’s favor.1
(a)
The movant must set forth each factual proposition in
its own separately numbered paragraph.
(b)

In each numbered paragraph the movant shall set cite
with precision to the source of that proposition, such
as pleadings,2 affidavits,3 exhibits, deposition
transcripts, or a detailed proffer of testimony that will
be presented at an evidentiary hearing.

B.

The movant must file and serve all materials specified in II. A with the movant’s
supporting brief.

D.

If, the court concludes that the movant’s submissions do not comply substantially
with these procedures, then the court, at its sole discretion, may deny summarily the
motion for injunctive relief, cancel any hearing on the motion, or postpone the
hearing.

III. RESPONDENT’S OBLIGATIONS
A.

When a motion and supporting materials and brief have been filed and served in
compliance with Section II, above, the opposing respondent(s) shall file and serve the
following:
1.

Any affidavits or other documentary evidence that the respondent
chooses to file and serve in opposition to the motion.

2.

A response to the movant’s statement of proposed findings of fact,
with the respondent’s paragraph numbers corresponding to the
movant’s paragraph numbers.
(a)

With respect to each numbered paragraph of the
movant’s proposed findings of fact, each respondent

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These factual propositions must include all basic facts necessary to a decision on the motion,
including the basis for this court’s jurisdiction, the identity of the parties and the background of the
parties’ dispute. The m ovant should not include facts unnecessary to deciding the motion for injunctive
relief.
2

The pleadings, however, are not evidence. Therefore, the movant m ay use the pleadings as a
source of facts only if all parties to the hearing stipulate to these facts on the record.
3

Affidavits m ust be made on personal knowledge setting forth facts that would be admissible in
evidence, including any facts necessary to establish admissibility.

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shall state clearly whether the proposed finding is not
disputed, disputed, or disputed in part. If disputed in
part, then the response shall identify precisely which
part is disputed.
(b)

For each paragraph disputed in whole or in part, the
response shall cite with precision to the evidentiary
matter in the record or to the testimony to be
presented at the hearing that respondent contends will
refute this factual proposition.

B.

The response, in the form required by III A., above, shall be filed and served together
with a brief in opposition to the motion for injunctive relief no later than the date set
by the court in a separately issued briefing schedule.

C.

There shall be no reply by the movant.

IV. HEARING
If the court determines that a hearing is necessary to take evidence and hear arguments it shall notify
the parties promptly. It is each party’s responsibility to ensure the attendance of its witnesses at any
hearing.

11/24/2008

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