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Cummings v. Klee

United States District Court, E.D. Michigan, Southern Division

April 25, 2018

WALTER CUMMINGS, Plaintiff,
v.
PAUL KLEE, et al, Defendants.

          Arthur J. Tarnow United States District Judge.

          REPORT AND RECOMMENDATION PLAINTIFF'S MOTION TO STRIKE GUAJARDO (DKT. 126) AND MOTION FOR PRELIMINARY INJUNCTION AND EXTENSION OF TIME TO RESPOND (DKT. 133)

          STEPHANIE DAWKINS DAVIS, UNITED STATES MAGISTRATE JUDGE.

         I. PROCEDURAL HISTORY

         Plaintiff, an inmate currently in the custody of the Michigan Department of Corrections, brings this action, pro se, under 42 U.S.C. § 1983, claiming a violation of his rights under the United States Constitution. (Dkt. 1). On February 10, 2016, this case was referred to the undersigned for all pretrial purposes. (Dkt. 46). On November 27, 2017, plaintiff filed a motion to amend by striking, without prejudice, defendant Nicholas Guajardo from his amended complaint. (Dkt. 126). On January 8, 2018, plaintiff filed a “second notice of retaliation, request for preliminary injunction, and motion for extension of time to respond to any and all deadlines”. (Dkt. 133). Defendant Jindal responded (Dkt. 145), and MDOC defendants responded (Dkt. 147).

         II. ARGUMENTS OF THE PARTIES

         In his motion to strike defendant Guajardo from his complaint, plaintiff states that he is without the means to find a correct address for Guajardo and that he does not want to burden this Court further. (Dkt. 126, at p. 1). This motion comes after this Court ordered plaintiff to provide a correct address for Guajardo so that he may be served with the summons and complaint. (Dkt. 123). Plaintiff requests that Guajardo be stricken from his complaint without prejudice so that he may name Guajardo as a defendant when he has the correct address. (Dkt. 126, at p. 2).

         In his motion for a preliminary injunction and extension of time to respond to all deadlines, plaintiff details instances of retaliation he has suffered from Librarians Platte and Loomis and Hearing Officer Harris at Carson City Correctional Facility for filing a grievance against Platte. (Dkt. 133, Pg ID 1238-39). According to plaintiff, in retaliation for filing the grievance, Loomis threatened plaintiff and Harris confiscated plaintiff's legal materials after a legal property hearing. (Id. at Pg ID 1239). Plaintiff requests injunctive relief in the form of being allowed to forward his legal documents to this Court to ensure they will be preserved. (Id. at Pg ID 1240). According to plaintiff, there is a reasonable likelihood of success on this claim and he will suffer irreparable injury because he cannot afford an attorney to get back the legal items the above-named individuals confiscated. (Id.). Plaintiff further requests a six-month extension of time to respond to all Court orders or court rule deadlines due to the above-named individuals' actions. (Id.).

         In response, defendant Jindal argues that the alleged retaliatory conduct took place at Carson City Correctional Facility, but that Jindal's last contact with plaintiff was at Gus Harrison Correctional Facility before plaintiff was transferred on January 21, 2014. (Dkt. 145, at p. 1-2). Jindal states that she has no personal knowledge of the allegations in plaintiff's motion for preliminary injunction.

         The MDOC defendants argue the same in their response. Defendants assert that plaintiff's allegations of retaliatory conduct involve individuals at Carson City, not Gus Harrison, the site of the events detailed in plaintiff's complaint. (Dkt. 147, at p. 2). The defendants assert that they do not have any involvement in the allegations plaintiff makes in his motion. The defendants point out, as does Jindal, that plaintiff was transferred from Gus Harrison in January 2014. None of the named defendants are named in his motion for preliminary injunction. (Id.). The defendants therefore ask that plaintiff's motion be denied.

         III. ANALYSIS AND RECOMMENDATIONS

         A. Motion to Strike Guajardo (Dkt. 126)

         The undersigned construes plaintiff's motion to amend the complaint to strike Guajardo without prejudice as a motion to dismiss Guajardo without prejudice. In light of plaintiff's unopposed request, the undersigned recommends that plaintiff's motion to strike Guajardo be GRANTED WITHOUT PREJUDICE.

         B. Motion for Preliminary Injunction, Extension of Time (Dkt. 133)

         The defendants are correct that plaintiff's motion for an injunction should be denied because the allegations in plaintiff's motion are not against the defendants, nor do they relate to the factual bases of the complaint. This court has held that an injunction “should not issue when it deals with a matter lying wholly outside the issues in the suit.” Corsetti v. Hackel, 2012 WL 4955275 (E.D. Mich. Sept. 26, 2012) (internal quotation marks omitted). A motion for preliminary injunctive relief is not the proper method for plaintiff “to use in an attempt to address other issues unrelated to his original complaint.” Hendr ...


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