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.
91) regarding the Motion for Summary Judgment filed by
Defendants (Doc. 59) and the Motion for Temporary Restraining
Order and Preliminary Injunction filed by Plaintiff Durwyn
Talley (Doc. 83). The Report and Recommendation, entered on
April 27, 2018, recommends that the Court grant in part and
deny in part Defendants' Motion for Summary Judgment and
deny Talley's Motion for Temporary Restraining Order and
Preliminary Injunction. No. objections to the Report and
Recommendation were filed.
an inmate of the Illinois Department of Corrections currently
housed at Western Illinois Correctional Center, filed this
pro se civil rights lawsuit pursuant to 42 U.S.C.
§ 1983 alleging Defendants violated his First and Eighth
Amendment rights (Doc. 1). Following a threshold review of
the complaint pursuant to 28 U.S.C. § 1915A (Doc. 2),
severance of this case from 14-cv-948-MJR-SCW (Doc. 4), and
the dismissal of several unknown John Doe defendants (Doc.
4), Talley is proceeding on one count of denial of access to
the courts in violation of the First Amendment against
Defendants Fitzgerald, Lashbrook, and Miner (Count 3) and one
claim for injunctive relief regarding his conditions of
confinement against Defendant Hutchinson, the warden of
Menard Correctional Center (Count 5). In Count 3, Talley
claims that Defendants failed to provide him with copies of
orders relating to an appeal. As a result, the appeal was
dismissed. In Count 5, Talley claims his cell at Menard
Correctional Center lacked adequate ventilation.
filed a motion for summary judgment on October 31, 2017 (Doc.
59). Defendants argue they are entitled to judgment as a
matter of law as to Count 3 because Talley was not yet housed
at Menard when two of the relevant orders were issued; thus,
the orders would have been sent to Talley's previous
institution. As a result, Talley cannot show the Defendants
were responsible for the failure to deliver the orders. They
also assert Talley cannot show the failure to deliver any
orders hindered his efforts to pursue a non-frivolous legal
claim, as the Central District of Illinois determined his
appeal in No. 14-1030 was not taken in good faith.
response, Talley asserts that he is complaining about the
failure to receive orders that resulted in the dismissal of
two appeals: No. 14-1030 and No. 15-1861. He further
contends that he arrived at Menard on April 9, 2014, so
Defendants are responsible for the failure to deliver orders
entered on May 12, 2014, June 19, 2014, and September 3,
2014. Furthermore, while it is true the Central District
determined his appeal was not taken in good faith, the
Court's decision was based on Talley's failure to pay
the filing fee. Thus, Talley argues, his appeal was not
frivolous, as it was not dismissed on the merits.
Count 5, Talley's claim for injunctive relief regarding
the conditions of confinement at Menard, Defendants argue
that Talley is no longer housed at Menard. Therefore, his
claim for injunctive relief in Count 5 is moot. Talley
concedes this point.
regard to Talley's Motion for Temporary Restraining Order
and Preliminary Injunction (Doc. 83), Talley asks the Court
to enter an order enjoining Defendants Lashbrook and
Fitzgerald, Directors of the Illinois Department of
Corrections, the Warden of Western Correctional Center, and
all of its agents, from intercepting, altering, reducing,
failing to file, and failing to give Talley complete copies
of all of his filings to and from the courts.
timely objections are filed, this Court 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). Where
neither timely nor specific objections to the Report and
Recommendation are made, however, this Court need not conduct
a de novo review of the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985). Instead, the
Court should review the Report and Recommendation for clear
error. Johnson v. Zema Systems Corp., 170 F.3d 734,
739 (7th Cir. 1999). The Court may then “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
de novo review is not required here, the Court has
carefully reviewed the evidence and Magistrate Judge
Wilkerson's Report and Recommendation for clear error.
Following this review, the Court agrees with the findings,
analysis, and conclusions of Magistrate Judge Wilkerson.
Accordingly, the Court ADOPTS the Report and
Recommendation (Doc. 91). Defendants' Motion for Summary
Judgment (Doc. 59) is GRANTED in part and DENIED in
part. Talley shall proceed as to Count 3 against
Defendants Fitzgerald, Lashbrook, and Miner only as it
relates to the failure to provide Talley with the Central
District's May 12, 2014 Order. Count 5 is
DISMISSED as moot. Talley's Motion for
Preliminary Injunction (Doc. 83) is DENIED.
IS SO ORDERED.
The Court notes that Magistrate
Judge Wilkerson disregarded Talley's argument regarding
his second appeal that was allegedly dismissed as a result of
prison officials interfering with Talley's access to the
courts. Magistrate Judge Wilkerson stated that appeal No.
14-1861 was an appeal from a Southern District of Indiana
criminal case involving a different party. Within his
response, however, Talley mistakenly refers to both No.
14-1861 and 15-1861. Appeal No. 15-1861 is, indeed, an appeal
by Talley to the Seventh Circuit Court of Appeals. The
Court's threshold order in this case (Doc. 2) does not
discuss appellate No. 15-1861, even though Talley's
complaint appears to reference the failure to receive court
orders related to two separate appeals. In any event, even if
Talley properly raised this claim, Defendants would still be
entitled to summary judgment. A review of the appellate
filings indicates Talley ...