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Cole v. Johnson

United States District Court, S.D. Illinois

February 2, 2015

DAMEON COLE, R13404, Plaintiff,
v.
CEDRICK L. JOHNSON, et al., Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the court on the Report and Recommendation ("R & R") (Doc. 27) of Magistrate Judge Philip M. Frazier with regard to Plaintiff's Request for a Temporary Restraining Order and a Preliminary Injunction (Doc. 18). Plaintiff filed objections (Doc. 42) to the R & R on January 5, 2015. Objections to the R & R were due on or before December 18, 2014; however, given the potential of delay during the holiday season, the Court will accept and consider Plaintiff's objections (Doc. 42). The Court is also construing Plaintiff's Motion (Doc. 40) for Reconsideration as objections to the R & R.

The Plaintiff also has pending a Motion for Status Hearing (Doc. 17); Motion to Notify (Doc. 23); Motion to Notify and Compel (Doc. 25); and Motion to Notify (Doc. 34) that the Court will address within this Order.

With regard to Plaintiff's Motion for Status Hearing (Doc. 17) filed on November 12, 2104, a hearing was conducted on November 24, 2014. As such, the Plaintiff had the opportunity to inquire as to the status of this matter at the hearing and the Plaintiff's Motion (Doc. 17) for Status Hearing is DENIED as moot.

With regard to Plaintiff's Motion to Notify (Doc. 23) addressing Plaintiff's mail, Plaintiff's mail issues were also heard at the November hearing and addressed in the R & R. Therefore, Plaintiff's Motion to Notify (Doc. 23) is DENIED as moot. Plaintiff's Motion to Notify (Doc. 23) also contains a request for instruction on the proper caption for this matter. Although a proper caption is an administrative matter - and not an appropriate issue for a motion - the Court will clarify that the caption of this matter remains the same, " Cole v. Johnson " and will only change if leave is granted and an amended complaint is filed.

The first issue in Plaintiff's Motion to Notify and Compel (Doc. 25) is the same issue she[1] presented in her Motion for Temporary Restraining Order (Doc. 18) - removal from perioral status and return to double cell status. That issue was addressed at the hearing and within the R & R. Therefore, the issue is moot within this motion.

The second issue with Plaintiff's Motion to Notify and Compel (Doc. 25) is a request to have inmate Erik Mills moved into her cell so that she may assist him in his legal filings. There is no constitutional or statutory right to counsel in federal civil cases. Pruitt, 503 F.3d at 656; see Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Further, meddling in the affairs of prison administration is not something the federal courts are eager to do, nor well suited for. The Supreme Court recognizes these concerns and stated the following:

"[T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters... [J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial." Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979).

As there is no constitution right to assistance in filing a civil matter, the Court defers to the expert judgment of the corrections facility in cell assignments. As such, Plaintiff's Motion to Notify and Compel (Doc. 25) is DENIED.

Plaintiff's Motion to Notify (Doc. 34) is also a statement pertaining to inmate cell placement. Although labeled as a Motion and containing the statement, "Plaintiff prays this court gives her relief, " no relief is specifically requested. For the reasons stated above with regard to cell assignments and for the lack of a specific prayer for relief, Plaintiff's Motion to Notify (Doc. 34) is DENIED.

Finally, the Court will address the R & R (Doc. 27). The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

The Plaintiff has filed objections (Docs. 40 & 42) and therefore, the Court reviews the R & R de novo. The Magistrate Judge held a hearing on November 24, 2014 and the Plaintiff was present via video. Upon completion of the hearing, the Magistrate Judge prepared the R & R which recommends that the Defendants be ordered to show cause as to why the Plaintiff's mail is being delayed, but recommends that Plaintiff's other requests for injunctive relief be denied.

The issues raised in Plaintiff's Request for injunctive relief (Doc. 17) were: 1) release from predatory status; 2) release of plaintiff's incoming mail; 3) stop co-workers from verbally assaulting her; 4) stop the continuous cell shake downs; 5) stop the shaking of her food trays; 6) not returning her laundry; and 7) transfer to another institution.

Plaintiff's objections (Docs. 42) to the R & R state that the Plaintiff has received increased harassment and threats since the November hearing. She states that, "Defendants have played with plaintiff's medication" and threatened, "... to teach plaintiff Ms. Cole a lesson for filing a lawsuit." The Plaintiff has attached ten (10) affidavits from inmates whom Plaintiff states were assaulted by prison staff and that ...


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