United States District Court, S.D. Illinois
WILLIE J. BOOKER, Plaintiff,
BRYAN GLECKLER, et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation of United States Magistrate Judge Reona Daly
(Doc. 108) recommending that the Motion to Revoke In Forma
Pauperis Status (Doc. 70) filed by Defendants Terri Anderson,
Kim Butler and Bryan Gleckler be granted. Plaintiff filed
objections (Doc. 113). For the following reasons, this Court
adopts Judge Daly's Report and Recommendation in its
Willie Booker is an inmate with the Illinois Department of
Corrections and is incarcerated at Menard Correctional
Center. Defendants are employed by the Illinois Department of
Corrections. Plaintiff filed this action pursuant to 42
U.S.C. § 1983, alleging constitutional and statutory
violations, including a failure to protect claim that
included an allegation of imminent danger of serious physical
injury (Doc. 1). Plaintiff also moved for injunctive relief,
requesting a transfer to protective custody at Pontiac
Correctional Center (Doc. 2).
Court found that Plaintiff had sufficiently alleged imminent
danger for purposes of 28 U.S.C. § 1915(g) and allowed
Plaintiff to proceed in forma pauperis (“IFP”),
in spite of the three strikes Plaintiff has accumulated for
filing frivolous or legally insufficient actions (Doc. 13).
Both the motion for injunctive relief and the imminent danger
allegation related to Plaintiff's claim that Defendants
failed to protect him against threats of murder from gang
members within the facility.
13, 2015, Magistrate Judge Philip Frazier held an evidentiary
hearing on Plaintiff's motion for injunctive relief (Doc.
23). Judge Frazier issued a Report and Recommendation finding
that Plaintiff had failed to establish a reasonable
likelihood of success on the merits or irreparable harm (Doc.
26). Plaintiff filed an amended motion for injunctive relief
which mooted the Report and Recommendation, and later
withdrew the amended motion (Doc. 51, 66, 69).
filed a motion to revoke Plaintiff's IFP status (Doc. 70)
and the Court ordered a hearing on the credibility of
Plaintiff's § 1915(g) allegation of imminent danger
(Doc. 98). Judge Daly conducted the hearing and issued the
currently pending Report and Recommendation (Doc. 108). The
Report sets forth the nature of the evidence presented by
both sides as well as the applicable law. Judge Daly
concluded that Plaintiff's allegation of imminent harm
does not articulate a specific, credible threat, but rather a
more general concern associated with his status as a sex
offender and a former gang member. Plaintiff, acting pro se,
filed “objections” to the report. Plaintiff's
filing does nothing more than recite his testimony, Judge
Daly's rulings, and his assertion that he is in imminent
undersigned must undertake a de novo review of the
Report and Recommendation because a timely objection was
filed. 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 (1sted. 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.
Prisoner Litigation Reform Act gives authority to federal
courts to allow plaintiffs to initiate actions without
prepayment of filing fees. 28 U.S.C. § 1915. That
authority is constrained by Section 1915(g), commonly
referred to as the “three strikes rule.” A
dismissal on grounds that an action is frivolous, malicious,
or fails to state a claim is a strike for purposes of §
1915(g). A prisoner who has accumulated three strikes cannot
proceed without a full prepayment of the filing fee unless he
can establish that he is in imminent danger of serious
physical injury. 28 U.S.C. § 1915(g). The Seventh
Circuit has explained that “imminent danger”
within the meaning of 28 U.S.C. § 1915(g) requires a
“real and proximate” threat of serious physical
injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d
328, 330 (7th Cir. 2003). Courts deny leave to proceed IFP
when “a prisoner's claims of imminent danger are
conclusory or ridiculous.” Id. at 331.
latest hearing, Plaintiff testified that his fear of imminent
danger stems from messages conveyed to him by his former
gang, the Gangster Disciples (“GDs”). In December
2014, Plaintiff received a letter he believes is from the GDs
stating that he is an “enemy of the people” and
that he should have himself placed in protective custody.
Plaintiff later discovered the GDs' plan to get a member
placed in Plaintiff's cell, supposedly to harm Plaintiff.
He was granted temporary protective custody until the matter
could be investigated. Plaintiff subsequently received
another letter that identified him as a sex offender and
threatened his life. He was then denied protective custody
and placed back into general population. In October 2015,
Plaintiff was attacked by a fellow inmate who had no
connections to the GDs. In February 2017, Plaintiff's
cellmate, also not a member of the GDs, attacked Plaintiff
for refusing a sexual proposition.
Cowan testified at the hearing that she investigated the
alleged threats against Plaintiff and was unable to verify
them. She stated that a more specific threat is required for
protective custody. She also testified that the intelligence
department conducted its own, more thorough investigation
into the matter and also recommended that Plaintiff be denied
on a de novo review of the record and relevant evidence, the
Court finds that Plaintiff's allegation of imminent
danger is conclusory and not supported by sufficient
evidence. Internal IDOC investigations were unable to verify
any imminent threat to Plaintiff and the Court is unable to
do so either. Moreover, the evidence indicates that the
incidents in October 2015 and February 2017 had no
relationship to the GDs or their threats. Absent a specific,
credible threat, the Court is not persuaded that Plaintiff is
in imminent danger.
Judge Daly's Report is adopted in its entirety and
Plaintiff's IFP status is hereby REVOKED. Plaintiff is
ADVISED that he must pay the filing fee in full ($400) before
he can proceed with his case. Plaintiff's failure to pay
the fee within 60 days of ...