McCain v. Herring, et al

Filing 67

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 50 in its entirety. Denying re 2 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Matthew M L McCain. Signed by Judge J. Phil Gilbert on 7/16/2013. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MATTHEW M.L. MCCAIN,
Plaintiff,
v.

Case No. 13-cv-300-JPG-PMF

RICHARD W. HARRINGTON, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
50) of Magistrate Judge Philip M. Frazier recommending that the Court deny plaintiff Matthew
M.L. McCain’s motion for a temporary restraining order and preliminary injunction (Doc. 2)
forcing the defendants to transfer him from Menard Correctional Center (“Menard”), where he is
currently housed, to Pontiac Correctional Center (“Pontiac”), where he believes he will be safer
from other inmates who wish to harm him. Magistrate Judge Frazier held a hearing on McCain’s
motion on May 21, 2013, at which McCain testified. McCain has objected to the Report (Doc.
53), and the defendants have responded to that objection (Doc. 60).
I.

Report Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
II.

Report and Objection
Magistrate Judge Frazier noted that McCain has been attacked four times while being an

inmate at Menard, twice while in protective custody (“PC”). McCain has conflicts with members
of the Latin Kings gang and has several individual declared enemies. However, the defendants
determined after an investigation that the most recent attack on McCain, on March 8, 2013, was
the result of a mere fight, not a targeted attack directed toward McCain. The following day,
McCain was placed in disciplinary segregation in a single-man cell. Although McCain asks this
Court to order the defendants to transfer him to the PC unit at Pontiac, he has not asked any of the
defendants to arrange for or recommend a transfer.
Magistrate Judge Frazier found McCain did not have a likelihood of success on the merits
of his claim because no evidence suggested any of the defendants actually knew of a strong
possibility McCain would be assaulted in the PC unit at Menard or that they ignored or disregarded
that risk. Magistrate Judge Frazier also found McCain had adequate alternative remedies to
resolve an unsafe situation: asking for a prison transfer recommendation, asking for a different cell
assignment, and appealing a cell assignment through the prison grievance system. Magistrate
Judge Frazier further noted that no evidence suggested Pontiac would be any safer for McCain
than Menard – Latin Kings are found throughout the prison system – and that judicial interference
with prison management may result in another inmate being exposed to greater harm.
In his objection, McCain take issue with a number of Magistrate Judge Frazier’s statements
that are immaterial to the question of whether an injunction should issue. His relevant arguments
assert that he should not have to demonstrate that every inch of Menard is unsafe for him before he
is entitled to an order of transfer. He further states he expects to return to PC after his time in
disciplinary segregation ends on June 29, 2013, that he will not be eligible for a transfer to another
institution until he has been out of disciplinary segregation for at least six months and that the
grievance process is futile for him. He also faults a Menard staff member for failing to investigate

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the most recent assault.
III.

Analysis
The Court has reviewed this matter de novo and has determined that the Report is correct.

Preliminary injunctive relief is designed “to minimize the hardship to the parties pending the
ultimate resolution of the lawsuit.” Platinum Home Mortg. Corp. v. Platinum Fin. Grp. Inc., 149
F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary injunction must make a threshold
showing that (1) he has some likelihood of success on the merits, (2) no adequate remedy at law
exists, and (3) he will likely suffer irreparable harm if the injunction is not granted. Ferrell v.
United States Dep’t of Housing & Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999). If the moving
party is able to establish these three factors, the Court must then balance the harms to both parties
using a “sliding scale” analysis, also taking into consideration the effect that granting or denying
the injunction will have on the public. “[T]he greater the moving party’s likelihood of prevailing
on the merits, the less strongly it must show that the balance of harms weighs in its favor.”
Ferrell, 186 F.3d at 811. “A preliminary injunction is an extraordinary remedy that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Chicago Dist.
Council of Carpenters Pension Fund v. K & I Constr., Inc., 270 F.3d 1060, 1064 (7th Cir. 2001)
(citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)); accord Winter v. Natural
Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008).
At the hearing, McCain failed to demonstrate that he has some likelihood of success on the
merits. Under the Eighth Amendment, prison officials are required to take reasonable measures
to protect inmates from violence from other prisoners. Farmer v. Brennan, 511 U.S. 825, 833-34
(1994); Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001). A prison official can be liable for
failure to protect an inmate if he intends or was deliberately indifferent to a substantial risk of

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serious harm to the inmate. Farmer, 511 U.S. at 828; Mayoral, 245 F.3d at 938. To meet the
“deliberate indifference” standard in this context, a prison official must know of an excessive risk
to an inmate’s health or safety and disregard it by failing to take reasonable measures to abate it.
Farmer, 511 U.S. at 847; Mayoral, 245 F.3d at 938. “[T]he official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer, 511 U.S. at 837. However, a defendant has no general duty to
rescue an inmate from a dangerous situation caused by others. Burks v. Raemisch, 555 F.3d 592,
596 (7th Cir. 2009). Here, McCain has failed to point to any competent evidence that any of the
defendants knew of and disregarded a serious threat to his safety. At most, he has shown that
some of the defendants knew he had been assaulted, yet refused to grant him PC status. Actually,
they investigated his PC request and found it unsubstantiated. This was not deliberate
indifference. With respect to the other defendants, McCain has pointed to no evidence they
actually knew of a risk to McCain in the PC unit and disregarded it. With respect to the March
2013 altercation, prison officials investigated, determined it was a run-of-the-mill prison
altercation rather than a targeted assault, and placed McCain in a single-man cell in disciplinary
segregation. This was not deliberate indifference.
Even if McCain had some likelihood of success on the merits, he has not shown a
temporary restraining order or a preliminary injunction requiring a transfer to Pontiac is his only
avenue of relief or is necessary to avoid irreparable harm. As Magistrate Judge Frazier noted,
McCain may request a transfer himself, see 20 Ill. Admin. Code 503.130(a) (“A request . . . for
transfer may be submitted by . . . the committed person . . . .”), or placement in the PC unit, see 20
Ill. Admin. Code 501.320(a) (“A committed person may request placement in protective
custody.”). He may also ask a staff member to recommend a transfer to a different institution, see

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20 Ill. Admin. Code 501.340(a) (“The Assignment Officer may, at any time, recommend an
institutional transfer if he determines that a transfer would be in the best interest of the committed
person or the facility.”), and the staff member must recommend the transfer if the inmate has been
in PC for six months, see 20 Ill. Admin. Code 501.340(b) (“In the event that a committed person
has been continuously housed in protective custody for a period of six months and he requests a
transfer, the Assignment Officer shall recommend an institutional transfer.”). McCain did not
point to evidence that he has asked to be transferred to Pontiac through the aforementioned
channels, and it appears his request to be placed in PC has been granted.
Most importantly, however, is the fact that the balancing of the harms does not weigh in
McCain’s favor. Magistrate Judge Frazier was right to be hesitant to tell prison administrators
how to do their jobs. Ordinarily, courts defer to the judgment of prison administrators on matters
regarding prison management issues. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“We
must accord substantial deference to the professional judgment of prison administrators, who bear
a significant responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them”). The Illinois Department of
Corrections must balance the security needs of more than 40,000 inmates, making sure to keep
apart those with known animosity towards each other. This is a delicate balance that risks being
thrown out of kilter by courts’ directing placement of individual inmates. On McCain’s side, the
Court notes he is likely in PC at the moment where he is separated from many inmates who might
wish him harm. There, he can do his best to resist getting involved in altercations with other
prisoners, he can ask prison officials to keep him apart from those he suspects might do him harm,
and he may request a transfer to another institution. Additionally, there is no evidence suggesting
McCain would be any safer at Pontiac than at Menard. All in all, the risk of disruption to the

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prison housing assignment balance outweighs any danger McCain might continue to face in PC in
Menard.
For all of these reasons, the Court will deny McCain’s motion for a temporary restraining
order and preliminary injunction.
IV.

Conclusion
For the foregoing reasons, the Court hereby:



ADOPTS the Report in its entirety (Doc. 50); and



DENIES McCain’s motion for a temporary restraining order and preliminary injunction
(Doc. 2).

IT IS SO ORDERED.
DATED: July 16, 2013
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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