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 United States Magistrate Judge Donald G. Wilkerson (Doc.
50), which recommends denying the motion for preliminary
injunction filed by Plaintiff James Owens (Doc. 39). For the
reasons explained below, the Report and Recommendation is
adopted, and the motion for preliminary injunction is denied.
James Owens, an inmate in the Illinois Department of
Corrections (“IDOC”) currently housed at Lawrence
Correctional Center, filed this pro se lawsuit
pursuant to 42 U.S.C. § 1983 on January 15, 2014,
alleging his constitutional rights were violated (Doc. 1;
Doc. 16). Plaintiff claimed that in 2005 he was
granted protective custody and administratively removed from
Menard Correctional Center (“Menard”)
he had “enemies” there. Plaintiff was transferred
back to Menard in December 2011, however, at the direction of
Sandra Funk, the IDOC Transfer Coordinator. Upon arriving at
Menard, Plaintiff was assaulted by correctional officers.
Following a threshold review of the complaint under 28 U.S.C.
§ 1915A, Plaintiff was permitted to proceed on a claim
of deliberate indifference against Sandra Funk (Doc. 9; Doc.
filed a second lawsuit against Sandra Funk on September 30,
2015. Owens v. Funk, Case No. 15-cv-1085 (S.D. Ill).
In that case, Plaintiff alleged that Funk denied his transfer
request from Lawrence to Danville Correctional Center, even
though the warden at Lawrence purportedly approved the
transfer, and Plaintiff's security rating qualified him
for placement at a lower security facility. Id. at
Doc. 7. Plaintiff alleged that Funk denied his transfer
request to retaliate against him for filing the first lawsuit
against her. Id. Following a threshold review of the
complaint under 28 U.S.C. § 1915A, Plaintiff was
permitted to proceed on one count of retaliation in violation
of the First Amendment against Funk. Id. The two
lawsuits were then consolidated in November 2015 (Doc. 36).
month later, Plaintiff filed a “Memorandum of Law in
Support of Plaintiff's Request for Preliminary
Injunction” (Doc. 39). Magistrate Judge Wilkerson
construed the submission as a motion for preliminary
injunction in which Plaintiff asked the Court to order the
IDOC to transfer him to another institution (Doc. 50).
Magistrate Judge Wilkerson issued a Report and Recommendation
on June 22, 2016, recommending that Plaintiff's motion be
denied (Doc. 50). Plaintiff filed an objection to the Report
and Recommendation on July 20, 2016 (Doc. 55). Defendant
Sandra Funk did not file a response to Plaintiff's
Report and Recommendation and Plaintiff's
Judge Wilkerson recommended denying Plaintiff's request
for a preliminary injunction because Plaintiff failed to meet
his threshold burden of showing that he would suffer
imminent, irreparable harm absent preliminary injunctive
relief (Doc. 50). In particular, Magistrate Judge Wilkerson
stated that Plaintiff made only general statements that he
should be placed in a facility that is warranted by his
classification, but he gave no indication what harm will come
to him if he is not transferred or what harm he was enduring
by being incarcerated at Lawrence (Doc. 50). Magistrate Judge
Wilkerson further stated that “the Supreme Court has
made it abundantly clear that a prisoner has no
constitutional right to select a particular correctional
facility for his placement or to be transferred to a
different facility upon request” (Doc. 50).
objection to the Report and Recommendation, Plaintiff submits
evidence that his request for a transfer to Danville had been
approved at the institutional level on four occasions (Doc.
55, pp. 8, 11, 15, 21). Each of his requests, however, was
ultimately rejected by Sandra Funk for reasons that Plaintiff
considers to be untrue or impermissible (Doc. 55). He claims
that he “need not state a specific harm that [he is]
experiencing” as a result of being incarcerated at
Lawrence, but he goes on to allege that the “lack of
grass or any soft surface at Lawrence CC exacerbates [his]
medical disability of pain and numbness in [his] back and
left leg” for which he uses a cane, a wheelchair, and a
back brace (Doc. 55, pp. 3, 4). Plaintiff also claims that in
the three and a half years that he has been at Lawrence, he
has been permitted access to the “general
library” on only four occasions despite his repeated
requests (Doc. 55, p. 4).
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.
frequently is observed that a preliminary injunction is an
extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (citation omitted).
Plaintiff's first threshold requirement for obtaining a
preliminary injunction is to demonstrate that he will suffer
irreparable harm in the absence of the relief sought.
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of
U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).
The irreparable harm must be “real, ”
“substantial, ” and “immediate.”
City of Los Angeles v. Lyons, 461 U.S. 95, 111
(1983). Plaintiff cannot simply allege that he is facing
irreparable harm; he must specify what that harm is. See,
e.g., Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172,
1180 (10th Cir. 2011) (“[The plaintiff] should identify
at least the general nature of the serious physical injury he
asserts is imminent. Vague and utterly conclusory assertions
are insufficient. Credible, uncontroverted allegations of
physical threats and attacks would be sufficient,
however.”) (internal citations and quotation marks
omitted); Caribbean Marine Servs. Co. v. Baldrige,
844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do
more than merely allege imminent harm sufficient to establish
standing; a plaintiff must demonstrate immediate
threatened injury as a prerequisite to preliminary injunctive
relief.”) (emphasis in original).
objection to the Report and Recommendation is still
insufficient to demonstrate immediate, irreparable harm.
Plaintiff makes a generalized assertion that the lack of
grass or other soft surfaces at Lawrence worsens the pain and
numbness in his back and legs that he has apparently been
suffering from for some time. He does not, however, provide
any details or specific facts about the nature or intensity
of his pain or why it would be alleviated if he was
transferred to Danville. Additionally, it is unclear what
sort of substantial and irreparable injury Plaintiff thinks
he faces from not being able to go to the general library as
frequently as he would like. To the extent that he does
suffer some sort of injury, it is difficult to imagine that
the injury cannot be fully remedied by an award of monetary
damages. See E. St. Louis Laborers' Local 100 v.