United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE
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
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.
reasons stated below, the Court sustains Defendants'
objection and respectfully rejects the Report and
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).
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).
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).
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).
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.
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 to the Report
& Recommendation (see Doc. 80), to which Talley
filed a response (Doc. 84).
Report and Recommendation and Defendants'
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
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 ...