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Merritte v. Kessell

United States District Court, S.D. Illinois

April 16, 2015

CALVIN MERRITTE, # R-53322, Plaintiff,
v.
C/O KESSELL, et. al., Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on Plaintiff's Motions for Preliminary Injunction, Motion for Temporary Restraining Order (Docs. 3, 8, & 15). The injunctive relief requested was protective measures to prohibit Defendants from being assigned to work around the Plaintiff and retaliating against him and also, "... transfer me from Lawrence Correctional Center." (Doc. 3, pg 2; Doc. 8, pg 1; and Doc. 15, pages 1 & 3).

I. Background.

Plaintiff filed a Complaint (Doc. 1) seeking recovery for alleged civil rights violations under 42 U.S.C. § 1983 against C/O Kessel, C/O Gangloff, C/O J. Freeman, C/O Breeden, C/O Tate, and Warden Marc Hodge. In his Complaint, Plaintiff alleges retaliation and harassment for filing grievances in violation of his 1st Amendment rights and failure to protect in violation of his 8th Amendment rights.

Thereafter, Plaintiff filed an Amended Complaint (Doc. 7) adding another Plaintiff (Regis Higgins) and a Motion for Preliminary Injunction (Doc. 8) that included Plaintiff Higgins. The Court entered an Order (Doc. 11) directing Plaintiff Higgins to indicate to the Court whether he desired to continue as a Plaintiff in this action. However, prior to receiving a response from Plaintiff Higgins, Plaintiff Merritte Motioned to Sever (Doc. 13) and filed a Motion to Amend/Correct his Complaint (Doc. 14). He also filed an Amended Motion for Preliminary Injunction (Doc. 15). The Motion to Sever and the Motion to Amend were granted and Plaintiff filed his Second Amended Complaint (Doc. 17).

The Second Amended Complaint underwent 28 U.S.C. § 1915A(b)(1)) review (Doc. 24) and the Court found that the plaintiff had plead sufficient grounds for a preliminary injunction and scheduled a hearing as soon as practicable.

The evidentiary hearing was held on October 22, 2012 (Doc. 43) before Magistrate Judge Frazier. The Plaintiff attended the hearing via video-conference and testified. Thereafter, Magistrate Judge Frazier issued a Report and Recommendation (Doc. 42) recommending denial of the preliminary injunction on the basis that the Plaintiff failed to identify a specific threat (who, when, and how) and therefore, Plaintiff had not demonstrated a likelihood of success on the merit and that the plaintiff did not establish he would suffer irreparable harm. Plaintiff filed an Objection to the Report and Recommendation (Doc. 45) which included six affidavits from other prisoners.

The District Judge reviewed the Report and Recommendation and the Plaintiff's objections. Although the District Judge rejected the reasoning of the R & R, Plaintiff's Motion for injunctive relief was denied on other grounds. Plaintiff filed an interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). The United States Court of Appeals for the Seventh Circuit held that the District Judge did not fully address Plaintiff's claims with regard to his fear of serious harm from other inmates. As such, the Appellate Court vacated and remanded.

Upon remand, the District Judge held an evidentiary hearing which the Plaintiff attended in person. The Plaintiff was permitted five witnesses that appeared via video conference and were subject to examination by the Plaintiff and by counsel for the Defendants. Finally, Plaintiff was granted permission and filed Supplemental Arguments and Exhibits (Doc. 201).

In order to obtain emergency injunctive relief, the plaintiff must support his motion with evidence to show that (1) he has no adequate remedy at law; (2) will suffer irreparable harm if the relief is not granted; (3) the irreparable harm he would suffer outweighs the irreparable harm defendants would suffer from an injunction; (4) he has some likelihood of success on the merits of his case; and (5) the injunction would not frustrate the public interest. Palmer v. City of Chicago, 755 F.2d 560, 576 (7th Cir.1985). The plaintiff must satisfy each of these elements to prevail. The purpose of a preliminary injunction is to preserve the status quo pending a final hearing on the merits of the case. American Hospital Ass'n v. Harris, 625 F.2d 1328, 1330 (7th Cir. 1980) "A preliminary injunction is an extraordinary remedy that is only granted where there is a clear showing of need." Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999). Further, a section of the PLRA entitled "Requirements for Relief, " provides:

Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity... in tailoring any preliminary relief. 18 U.S.C. § 3626(a)(2).

As stated above, Plaintiff's request for injunctive relief was for protective measures to prohibit Defendants from being assigned to work around the Plaintiff and retaliating against him and also a transfer from Lawrence Correctional Center. At the hearing, Plaintiff testified:

THE COURT: Now, when you filed this you were at Lawrence - ...

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