Talley, Timothy v. Dittman, Michael et al

Filing 7

ORDER granting plaintiff's 5 motion for leave to amend his complaint. Plaintiff may have until December 29, 2014 to submit his proposed amended complaint. Plaintiff may have until December 29, 2014 to submit a brief, proposed findings of fact, and evidence in support of his motion for preliminary injunctive relief. Signed by District Judge James D. Peterson on 12/10/2014. (jef),(ps)

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

TIMOTHY TALLEY,
ORDER
Plaintiff,
v.

14-cv-783-jdp

MICHAEL DITTMAN, DAVID MELBY,
and KARL HOFFMAN,
Defendants.

Pro se plaintiff Timothy Talley, an inmate at the Columbia Correctional Institution, filed
this proposed civil action in the Columbia County Circuit Court. The case was then removed to
this court by defendants Michael Dittman, David Melby, and Karl Hoffman. Defendants state
that this case is removable because plaintiff raises constitutional claims of deliberate indifference
to his severe back pain. I agree that plaintiff’s constitutional claims make this case removable.
See 28 U.S.C. § 1441(c).
Usually the next step would be for the court to screen the complaint and dismiss any
portion that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law cannot be sued for money
damages. 28 U.S.C. § 1915A. However, plaintiff has filed a motion “to stay screening and for
order allowing amendment of filing due to removal of action,” Dkt. 5, arguing that the operative
pleading, titled “Notice of Motion and Amended Motion for Restraining Order,” Dkt. 1, “does
not comply with current Western District Rules . . . [and was] written for use in the Wisconsin
State Courts . . ., not written for use in the U.S. District Court.” I am not convinced that there
are any fatal problems with the pleading as written, but there is little reason to deny plaintiff’s
request, so I will give him a chance to file an amended complaint. See Fed. R. Civ. P. 15(a)(2)

(court should “freely give leave [to amend] when justice so requires”). I will attach a copy of the
court’s form prisoner complaint to this order.
The remaining issue is plaintiff’s request for injunctive relief. As the title of his operative
pleading suggests, plaintiff seeks a restraining order forcing defendants to provide different
treatment for his back. Even if I were to consider this as a properly filed motion for temporary
restraining order under Federal Rule of Civil Procedure 65(b), plaintiff falls far short of showing
that this is one of the extremely rare situations in which the court would issue an ex parte
restraining order changing the status quo of a prisoner’s treatment. See Granny Goose Foods, Inc. v.
Brotherhood of Teamsters, 415 U.S. 442, 439 (1974) “issuance of temporary restraining orders is
generally “restricted to . . . preserving the status quo.” (emphasis added); Jordan v. Wolke, 593
F.2d 772, 774 (7th Cir. 1979) (While “there may be situations justifying a mandatory
temporary injunction compelling the defendant to take affirmative action, . . . mandatory
preliminary writs are ordinarily cautiously viewed and sparingly issued.”)
I will, however, consider his request as a motion for preliminary injunctive relief and give
plaintiff a chance to submit a brief, proposed findings of fact, and supporting evidence in
compliance with this court’s “Procedure to be Followed on Motions for Injunctive Relief,” a
copy of which I will attach to this order. After plaintiff submits his amended complaint and
preliminary injunction materials, I will set dates for defendants to respond.

ORDER
IT IS ORDERED that:
1.

Plaintiff Timothy Talley’s motion for leave to amend his complaint, Dkt. 5, is
GRANTED. Plaintiff may have until December 29, 2014 to submit his proposed
amended complaint.

2.

Plaintiff may have until December 29, 2014 to submit a brief, proposed findings

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of fact, and evidence in support of his motion for preliminary injunctive relief.
Entered this 10th day of December, 2014.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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