Cheek, Joshua v. Beeman, Jen et al

Filing 52

ORDER denying plaintiff's 46 motion for reconsideration denying him leave to amend his complaint; denying 51 motion for preliminary injunction. Signed by District Judge Barbara B. Crabb on 4/15/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOSHUA CHEEK,
ORDER
Plaintiff,
13-cv-527-bbc
v.
JEN BEEMAN,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil lawsuit, pro se plaintiff Joshua Cheek is proceeding on claims of excessive
force, battery and denial of medical care against defendant Jen Beeman stemming from an
altercation at the Mendota Mental Health Institute. After having been granted leave to
amend his complaint on a motion for reconsideration, plaintiff has filed what I construe as
another motion for reconsideration of the order denying him leave to amend his complaint.
Dkt. #46. Plaintiff has also filed a letter that I construe as a motion for preliminary
injunction under Fed. R. Civ. P. 65(a). Dkt. #51. In this submission, plaintiff states that
he is subject to retaliation by staff members at the Wisconsin Resource Center, the
institution to which he has been transferred, are retaliating against him for filing this lawsuit.
Both motions will be denied.
In his renewed motion for reconsideration, plaintiff asks to add claims for denial of
access to the courts and for retaliation. He contends that mailroom employees at the

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Mendota Mental Health Institute retaliated against him and denied him access to the courts
when they prevented him from mailing legal documents pertaining to Beeman’s alleged
assault for six months. As discussed in this court’s previous orders, plaintiff cannot state a
claim for denial of access to the courts without alleging that he has experienced an “actual
injury,” that is, some sort of prejudice affecting his lawsuit. Lewis v. Casey, 518 U.S. 343,
351 (1996). The six-month delay did not affect his ability to prosecute his present lawsuit,
so he has not yet shown an actual injury. Johnson v. Barczak, 338 F.3d 771, 773 (7th Cir.
2003) (“[A] delay becomes an injury only if it results in ‘actual substantial prejudice to
specific litigation.’”) (quoting Gentry v. Duckworth, 65 F.3d 555, 559 (7th Cir.1995)).
Furthermore, adding a denial of access to the courts claim and a retaliation claim is
not permissible under Fed. R. Civ. P. 20, which prohibits joining unrelated claims against
different defendants. The bite and the mail tampering are separate events involving different
defendants and they do no involve any common questions of law or fact, as required by Rule
20. Allowing plaintiff’s amendment would be futile because he would not be permitted to
join the new claims to the one he has raised in this lawsuit. Accordingly, his motion will be
denied. Owens v. Hinsley, 635 F.3d 950, 956 (7th Cir. 2011) (“We have held that leave to
amend may be denied if the new complaint does not cure deficiencies in the old one and is
doomed to the same fate.”).
Next, I cannot consider plaintiff’s motion for injunctive relief at this time because
plaintiff’s submission does not comply with this court’s procedures for obtaining a
preliminary injunction. In particular, plaintiff has not submitted admissible evidence to

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support his requests for injunctive relief and he has not proposed facts supported by such
evidence. Therefore, I will deny his motion without prejudice because he has failed to follow
this court’s procedures for obtaining injunctive relief. Those procedures are set out in a
document titled Procedure To Be Followed On Motions For Injunctive Relief, a copy of
which is included with this order. Plaintiff should pay particular attention to those parts of
the procedure that require him to submit proposed findings of fact in support of his motion
and point to admissible evidence in the record to support each factual proposition.
Even if plaintiff refiles his motion in accordance with the court's procedures on
motions for injunctive relief, he should know that he cannot obtain injunctive relief on issues
that do not relate to the claims on which he has been allowed leave to proceed. Plaintiff’s
allegations concerning retaliation by staff at the Wisconsin Resource Center do not relate
to his claims against Beeman. If plaintiff wishes to raise a claims concerning these other
allegations he will have to do so in a separate lawsuit after he first exhausts his administrative
remedies. The court recognizes an exception to this policy only where it appears that the
alleged retaliation would directly, physically impair the plaintiff’s ability to prosecute his
lawsuit. Plaintiff has not alleged that he has failed to receive any specific documents for his
case, and so far in this lawsuit he has made timely filings each time he has been required to
do so. Therefore, plaintiff has not shown that he has been impaired in prosecuting his
lawsuit, so his motion for preliminary injunction will be denied.

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ORDER
IT IS ORDERED that plaintiff Joshua Cheek’s motion for reconsideration of the
order denying him leave to amend his complaint, dkt. #46, and his motion for preliminary
injunction, dkt. #51, are DENIED.
Entered this 15th day of April, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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