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Talley v. Lee

United States District Court, S.D. Illinois

September 21, 2016



          NANCY J. ROSENSTENGEL United States District Judge

         This matter is before the Court on the Report and Recommendation of Magistrate Judge Donald G. Wilkerson entered on June 17, 2016 (Doc. 79), which recommends denial of Defendants' motion to dismiss (Doc. 45). Defendants filed a timely objection to the Report and Recommendation on July 1, 2016 (Doc. 80).

         Because timely objections were filed, the undersigned must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F.Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the district judge to “give fresh consideration to those issues to which specific objections have been made” and make a decision “based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion.” Harper, 824 F.Supp. at 788 (citing 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part)); Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept, reject or modify the magistrate judge's recommended decision.” Harper, 824 F.Supp. at 788.

         For the reasons stated below, the Court sustains Defendants' objection and respectfully rejects the Report and Recommendation.


         Plaintiff Durwyn Talley, an inmate in the Illinois Department of Corrections, filed this pro se lawsuit on September 21, 2015 (Doc. 1). After conducting a threshold review of the complaint under 28 U.S.C. 1915A, the Court permitted Talley to proceed on one claim of retaliation in violation of the First Amendment (Doc. 5). In particular, Talley claimed that other inmates and prison officials at Menard Correctional Center had been threatening to beat and kill him from May 2015 up to the time he filed this case (Doc. 5, Doc. 1). Talley further alleged that his complaints about the threats were ignored and his requests for protective custody were denied (Doc. 5, Doc. 1). According to Talley, this was all happening because officials at Menard had grown tired of the many grievances and lawsuits he had filed (Doc. 5, Doc. 1).

         At the same time Talley filed his complaint, he filed a motion to proceed in forma pauperis (“IFP”) (Doc. 2). Because Talley had recently “struck out” for previously filing three frivolous lawsuits in federal court, he could not proceed IFP unless he was in imminent danger of serious physical injury (Doc. 5). 28 U.S.C. § 1915(g). The Court found that the imminent danger standard was satisfied based on Talley's allegations regarding the threats he received and the inaction of prison officials, and he was permitted to proceed IFP (Doc. 5). Those same allegations were also construed by the Court as a request for a preliminary injunction (Doc. 5). Talley then followed up by submitting a number of formal motions to that effect (Docs. 6, 10, 29).

         Magistrate Judge Wilkerson held a hearing on October 2, 2015-eleven days after Talley filed his complaint-on the issue of a preliminary injunction. Talley testified at the hearing, and the crux of his testimony was that the threats he received prior to filing the lawsuit had continued. Following the hearing, Magistrate Judge Wilkerson issued a Report and Recommendation recommending the denial of Talley's requests for preliminary injunctive relief (Doc. 30). Magistrate Judge Wilkerson stated in pertinent part that “Plaintiff was not credible in his assertions that he is being threatened by inmates and correctional officers because of his First Amendment activities” (Doc. 30, p. 5). Specifically, Magistrate Judge Wilkerson stated that Talley was “prone to exaggeration, ” and he “attributes constitutional motivations to actions that have legitimate purposes, simply because he believes that there is a vast conspiracy to cause him harm” (Doc. 30, pp. 3, 6-7). Magistrate Judge Wilkerson further stated that Talley's belief “ha[d] no basis in fact” and was instead based on “rank conjecture and speculation as to the motivations of personnel at the prison and the actions of other inmates” (Doc. 30, pp. 6, 7). For these reasons, Magistrate Judge Wilkerson concluded that there was “no reasonable likelihood that Plaintiff [would] prevail on the merits of this case, ” and he recommended denying all of Talley's requests for preliminary injunctive relief (Doc. 30, p. 6).

         This Court adopted the Report and Recommendation, including Magistrate Judge Wilkerson's credibility findings, and concluded that Talley was not being threatened or in danger of physical harm as he alleged in his complaint (Doc. 65, p. 4). More specifically, the undersigned concluded that Talley “exaggerat[ed] his circumstances” and “what Talley labels as a threat was [actually] a warning from fellow inmates about the repercussions Talley might face if he continues to file lawsuits, rather than a threat of actual harm” (Doc. 65, pp. 4, 5).

         Before the Court ruled on the Report and Recommendation, however, Defendants filed a motion to dismiss Talley's complaint based on Magistrate Judge Wilkerson's findings and conclusions (Docs. 45, 46). In short, Defendants argue that if Talley's allegations of danger were not credible and therefore insufficient to warrant the imposition of a preliminary injunction, then those allegations are also insufficient to establish that he was in imminent danger at the time he filed his complaint, and he should not have been permitted to proceed IFP.

         On June 8, 2016, Magistrate Judge Wilkerson held another hearing, this time on the motion to dismiss (Doc. 76). See Taylor v. Watkins, 623 F.3d 483, 486 (7th Cir. 2010) (holding that “that when a defendant contests a plaintiff's claims of imminent danger, a court must act to resolve the conflict.”). Once again Talley testified about the purported threats he received at Menard prior to filing this lawsuit and prison officials' inaction. Following the hearing, Magistrate Judge Wilkerson issued a Report and Recommendation, recommending that the motion to dismiss be denied (Doc. 79). Defendants filed an objection (see Doc. 80); Talley did not file any objections of his own or a response to Defendants' objections.

         The Report and Recommendation and Defendants' Objections

         In the Report and Recommendation, Magistrate Judge Wilkerson detailed Talley's testimony regarding the threats he claimed to have faced at Menard (Doc. 79, p. 3). Then, citing to Taylor, Magistrate Judge Wilkerson noted that Defendants “failed to present any evidence, let alone ‘incontrovertible proof' that Talley's allegations of imminent danger of serious physical injury were implausible or false” (Doc. 79, p. 4). He further noted that:

There was nothing in Plaintiff's testimony or in the evidence presented that would call into question Plaintiff's credibility or the Court's initial finding [of imminent danger]. Defendants have pointed out no major or glaring inconsistencies between Plaintiff's testimony and his allegations. And, Defendants presented ...

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