Burke v. Godinez et al

Filing 13

ORDER DISMISSING CASE without prejudice, denying 9 MOTION for Reconsideration The Clerk is DIRECTED to mail a copy of this order to the Trust Fund Officer at Menard Correctional Center upon entry of this Order. Signed by Judge J. Phil Gilbert on 6/6/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN BURKE, # B-60083,
Plaintiff,
vs.
SALVADOR GODINEZ,
RICK HARRINGTON,
ASSISTANT WARDEN BUTLER,
JOHN TOURVILLE,
GEORGE WILLBORN,
MICHELLE BUSCHER, MISTI PRICE,
BETSY SPILLER, JORGE L. MONTES,
ILLINOIS DEPARTMENT of
CORRECTIONS,
and UNKNOWN PARTIES,
Defendants.

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Case No. 13-cv-345-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Upon initial review of Plaintiff’s pro se civil rights complaint and his motion for leave to
proceed in forma pauperis (“IFP”), this Court found that Plaintiff (who has accumulated three
“strikes” within the meaning of 28 U.S.C. § 1915(g)) had failed to show that he is under
imminent danger of serious physical injury (Doc. 7). Leave to proceed IFP was denied, and
Plaintiff was ordered to pay the $350.00 filing fee for this action no later than May 30, 2013, in
order for the matter to proceed. He was warned that failure to pay the fee would result in
dismissal of this case.
Plaintiff has not paid the fee. Instead, on May 29, 2013, he filed a motion for relief from
judgment (Doc. 9) and an amended motion for preliminary injunction and temporary restraining
order (TRO) (Doc. 10). In his motion for relief from judgment, Plaintiff states that he does not
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have the money to pay the filing fee, and requests the Court to reconsider the denial of his
motion for leave to proceed IFP (Doc. 9, p. 12). In addition, he submitted a proposed amended
complaint, which the Clerk construed as a motion to amend complaint (Doc. 8). That pleading
has now been filed as Plaintiff’s First Amended Complaint (Docs. 12 & 12-1).
The original complaint has now been superseded and replaced by the First Amended
Complaint. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir.
2004). The Court shall first address Plaintiff’s motion for relief from judgment, and shall then
review the amended complaint.
Motion for Relief from Judgment (Doc. 9)
Plaintiff’s motion for relief from judgment, which was filed within 28 days of the order
he challenges, may be treated as either a motion to alter or amend judgment under Rule 59(e) or
a motion for relief from judgment/order under Rule 60(b). See, e.g., Mares v. Busby, 34 F.3d
533, 535 (7th Cir. 1994).
Different standards and time-tables govern Rule 59(e) and Rule 60(b) motions. Rule
59(e) permits a court to amend a judgment only if the movant demonstrates a manifest error of
law or fact or presents newly discovered evidence that was not previously available. See, e.g.,
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007). A Rule 59(e) motion must be
filed within 28 days of the challenged order; a Rule 60(b) motion generally must be filed within
one year, with some exceptions. Rule 60(b) permits a court to relieve a party from an order or
judgment based on such grounds as mistake, surprise or excusable neglect by the movant; fraud
or misconduct by the opposing party; a judgment that is void or has been discharged; or newly
discovered evidence that could not have been discovered within the 28-day deadline for filing a
Rule 59(b) motion. However, the reasons offered by a movant for setting aside a judgment under

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Rule 60(b) must be something that could not have been employed to obtain a reversal by direct
appeal. See, e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Parke-Chapley
Constr. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989) (“an appeal or motion for new
trial, rather than a FRCP 60(b) motion, is the proper avenue to redress mistakes of law
committed by the trial judge, as distinguished from clerical mistakes caused by inadvertence”);
Swam v. U.S., 327 F.2d 431, 433 (7th Cir.), cert. denied, 379 U.S. 852 (1964) (a belief that the
Court was mistaken as a matter of law in dismissing the original petition does “not constitute the
kind of mistake or inadvertence that comes within the ambit of rule 60(b).”).
Plaintiff argues that the Court erred in its interpretation of the legal standard regarding
what may constitute “imminent danger of serious physical injury.” He insists that the verbal
threats directed toward him by Defendants Tourville and Willborn were sufficient to overcome
the three-strike bar, thus he should have been allowed to proceed IFP. In addition, both the
motion and the amended complaint state that on May 16, 2013, Defendant Tourville again
“threatened Plaintiff with instant death” and used a racial epithet in conjunction with the threat
(Doc. 12-1, p. 6). This threat did not occur until after Plaintiff had filed the original complaint
on April 9, 2013. The Court shall consider the motion under Rule 59(e).
Although Plaintiff brings up additional cases in support of his argument, they do not
persuade the Court that his original allegations were sufficient to overcome the §1915(g) bar. In
Burton v. Livingston, 791 F.2d 97 (8th Cir. 1986), the court ruled that an inmate stated a
constitutional claim when a guard pointed a gun at him, cocked it, taunted him with a racial
epithet and goaded him to run so the guard could justifiably shoot him. 791 F.2d at 98-100. This
happened immediately after the prisoner had testified in court against another guard. The threat
appeared serious enough that a second guard on the scene interceded to shield the prisoner.

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Burton, 791 F.2d at 99-100. Plaintiff’s case is distinguishable. The threats by Defendants
Tourville and Willborn were verbal only, did not involve a weapon, nor did the circumstances
indicate that harm to Plaintiff was (or is) imminent. Defendant Tourville’s February 2013 “death
threat” was conditional – if Plaintiff hit him, he would kill Plaintiff – and Plaintiff responded by
avoiding further interaction with Defendant Tourville.
In the other case Plaintiff relies on, Chandler v. D.C. Dept. of Corr., 145 F.3d 1355,
1360-61 (D.C. Cir. 1998), the court allowed a claim to go forward, reasoning that the defendant
guard was in a position to carry out her threat to have the plaintiff killed, and the plaintiff stated
he suffered psychological harm due to his fear that the threat would be carried out. Plaintiff’s
case does not present comparable circumstances. The verbal threat from Defendant Tourville
was made in the dining hall, where Plaintiff sat among a group of other inmates who were
temporarily assigned to work in the maximum security unit (Plaintiff was housed in the separate
medium security unit). He alleged that he feared being taken to segregation (where he might be
assaulted) if he did not repeat the threat back to Defendant Tourville as ordered (Doc. 1, p 16).
Plaintiff’s account of Defendant Willborn’s threat focuses on its retaliatory nature, after Plaintiff
filed a grievance against him (Doc. 1, p. 13). As noted in the order denying Plaintiff’s IFP
motion, Plaintiff’s account of the threats, in the context of all his allegations, do not indicate that
he faces a serious, credible threat to his safety.
Upon reconsideration, the Court is satisfied that it was correct in concluding that the
verbal threats to Plaintiff as described in the original complaint fall on the harassment end of the
spectrum, rather than the “cruel and unusual punishment” side, and do not amount to credible
threats to his safety. See Dobbey v. Ill. Dept. of Corr., 574 F.3d 443, 445 (7th Cir. 2009). Nor
do they indicate that Plaintiff is under an imminent threat of serious physical harm so as to

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overcome the bar of § 1915(g). The motion does not demonstrate any mistake of law or fact, or
newly discovered evidence, that would entitle Plaintiff to an altered or amended judgment under
Rule 59(e). The result would be no different under Rule 60(b). Accordingly, the motion for
relief from judgment (Doc. 9) is DENIED.
Review of Amended Complaint (Docs. 12 & 12-1)
The amended complaint includes the same allegations as the original complaint, with
only minor changes. Paragraph 1 on page 4 of Doc. 12, through ¶ 72 on page 6 of Doc. 12-1 are
identical to pp. 2-19 (¶¶ 1-72) of the original complaint. Pages 7-10 (Doc. 12-1) of the amended
complaint are identical to pages 19-22 of the original pleading. The only new material is the
addition of a section on Plaintiff’s litigation history (Doc. 12, pp. 2-3), an allegation of a new
recent threat from Defendant Tourville (Doc. 12-1, ¶ 73 on p. 6), and some revisions to the
requested relief (Doc. 12-1, pp. 11-17).
Plaintiff’s new allegation is that “On May 16, 2013, Tourville yet again threaten[ed]
plaintiff with instant death at which time a racial epithet was used in conjunction with said threat,
to now chill plaintiff from engaging in First Amendment protected conduct” (Doc. 12-1, p. 6).
Nowhere does Plaintiff include Defendant Tourville’s actual words, nor does he state that the
threat was accompanied by any other non-verbal conduct or circumstances that might indicate a
present ability or inclination to carry out the threat of “instant death.”
Although the Court in no way condones threatening or racist language directed at
prisoners by guards, this new allegation does not change the Court’s conclusion that Plaintiff has
failed to describe an imminent threat of serious physical injury. Mere threatening words, without
more, will generally not amount to an Eighth Amendment violation. See Dobbey v. Ill. Dep’t of
Corrections, 574 F.3d 443, 446 (7th Cir. 2009); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.

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2000). Indeed, Plaintiff’s statement indicates a greater concern with the “chilling effect” of
Defendant Tourville’s words on his First Amendment activity than the likelihood of the death
threat being carried out. Taken as a whole, the amended complaint does not provide grounds to
allow Plaintiff to overcome the three-strike bar in order to proceed IFP.
Because Plaintiff has indicated that he does not have the ability to pre-pay the $350 filing
fee for this case, and has not paid the fee within the deadline set by this Court, this case shall be
dismissed without prejudice. The Court notes that Plaintiff has brought a separate petition for
habeas corpus relief for the alleged improper extension of his sentence after the revocation of his
mandatory supervised release (Burke v. Godinez, Case No. 13-449-DRH). The government has
been ordered to respond in that case.
Disposition
Plaintiff’s motion for relief from judgment (Doc. 9) is DENIED.
This action is DISMISSED WITHOUT PREJUDICE. The motions for preliminary
and permanent injunction and temporary restraining order (Docs. 2 & 10) are DENIED AS
MOOT.
The agency having custody of the Plaintiff is directed to remit the $350.00 filing fee from
his prison trust fund account if such funds are available. If he does not have $350.00 in his
account, the agency must send an initial payment of 20% of the current balance or the average
balance during the past six months, whichever amount is higher. Thereafter, Plaintiff shall make
monthly payments of 20% of the preceding month's income credited to Plaintiff's prison trust
fund account until the $350.00 filing fee is paid in full. The agency having custody of Plaintiff
shall forward these payments from Plaintiff’s trust fund account to the Clerk of this Court each
time Plaintiff’s account exceeds $10.00, until the $350.00 fee is paid. Payments shall be mailed

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to: Clerk of the Court, United States District Court for the Southern District of Illinois, P.O. Box
249, East St. Louis, Illinois 62202. The Clerk is DIRECTED to mail a copy of this order to the
Trust Fund Officer at Menard Correctional Center upon entry of this Order.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
If Plaintiff wishes to appeal the dismissal of this case, he may file a notice of appeal with
this Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4). If Plaintiff does
choose to appeal, he will be liable for the $455.00 appellate filing fee irrespective of the outcome
of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, because Plaintiff has “struck out” and
has not shown that he is in imminent danger of serious physical injury, this Court will not grant
him permission to proceed in forma pauperis on appeal. Finally, if the appeal is found to be
nonmeritorious, Plaintiff may also incur another “strike.”
IT IS SO ORDERED.
DATED: June 6, 2013

s/ J. PHIL GILBERT
United States District Judge

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