Bentz v. Hughs et al

Filing 110

ORDER. Plaintiff's motions for injunctive relief are DENIED 70 73 . The Court adopts the Reports and Recommendations on these matters 72 98 . Signed by Judge Nancy J. Rosenstengel on 1/11/2016. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID ROBERT BENTZ,
Plaintiff,
vs.
ZIEGGER, SERGEANT DUNN,
SERGEANT SHURTZ, RICK
HARRINGTON, CORRECTIONAL
OFFICER LINDENBERG, MA MINER,
CORRECTIONAL OFFICER DAVIS, E
QUAND, J BERNER, J HOOD , J
PHILLIP, JASON REDNOUR, and
JACKIE STUEVE ,
Defendants.

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Case No. 3:13-CV-01280-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 72), which recommends denial of the
Motion for Temporary Restraining Order and/or Preliminary Injunction filed by
Plaintiff on April 6, 2015 (Doc. 70). Plaintiff then filed a second motion titled “Second
Motion for Temporary Restraining Order and/or Preliminary Injunction” on April 16,
2015 (Doc. 73). United States Magistrate Judge Wilkerson issued a Report and
Recommendation on this motion on October 26, 2015 (Doc. 98).
BACKGROUND
Plaintiff, an inmate at Menard Correctional Center (“Menard”), filed this pro se
lawsuit pursuant to 42 U.S.C. § 1983 on December 12, 2013. Plaintiff alleges that he has

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been denied adequate living conditions and that he is being retaliated against by the staff
at Menard (Doc. 1). The events giving rise to the complaint began in September 2013,
when Plaintiff was directed to change cells. During the cell change, certain clothing and
bedding (in addition to legal materials) were allegedly confiscated and then discarded
by some of the Defendants. Plaintiff alleges that the items were not replaced throughout
the winter months despite his repeated requests to various other Defendants. As a result,
he was unable to participate in recreation/outdoor time because of the cold
temperatures and lack of adequate clothing. He also did not have a change of clothes or
appropriate bedding. Plaintiff alleges that the Defendants acted in a conspiracy to
deprive him of these necessities because Plaintiff is pursuing various lawsuits and has
filed various grievances. Plaintiff also recounts instances when he was assaulted by one
or more Defendants during this time period. Plaintiff has been permitted to proceed on
nine counts:
Count 1: Retaliation claim against Defendant Berner for spitting in
Plaintiff’s face on September 20, 2013 after Plaintiff sued him in a previous
federal civil rights case;
Count 2: State tort assault and battery claim against Defendant Berner for
the September 20, 2013 spitting incident;
Count 3: Excessive force claim against Defendant Miner for shoving
Plaintiff into a door frame on September 27, 2013, and against Defendants
Berner, Quand, Steve, Dunn, and John Does #1 and #2 for failing to protect
Plaintiff from Defendant Miner’s action and for pushing Plaintiff;
Count 4: State tort assault and battery claim against Defendants Miner,
Berner, Quand, Steve, Dunn, and John Does #1 and #2, for the conduct
described in Count 3;
Count 5: Retaliation claim against Defendants Berner, Quand, Miner,
Steve, Dunn, and John Does #1 and #2 for confiscating and destroying
Plaintiff’s clothing, bedding, legal materials and documents, and other
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personal effects on September 27, 2013, after Plaintiff sued and filed
complaints against Defendant Berner and other Menard officials;
Count 6: Civil conspiracy claim under § 1983 against Defendants Berner,
Quand, Miner, Steve, Dunn, and John Does #1 and #2, for acting together
in an attempt to prevent Plaintiff from pursuing his legal actions against
prison officials, by destroying his legal materials and documents on
September 27, 2013;
Count 7: Retaliation claim against Defendant John Doe #3, and Defendants
Hood, Lindenberg, Ziegger, Shurzt, Phillip, and Rednour, for denying
Plaintiff replacement clothing and bedding from September 27 through at
least November 2013, because of his activity in filing lawsuits and
complaints against Menard staff;
Count 8: Eighth Amendment deliberate indifference claims for denying
Plaintiff adequate clothing to protect him from the cold, thus depriving
him of the opportunity for outdoor exercise, and for failing to provide
sufficient clothing and linens to meet his basic hygiene needs, from
September 27 through at least November 2013, against Defendant John
Doe #3, and Defendants Hood, Lindenberg, Ziegger, Shurzt, Phillip, and
Rednour;
Count 9: State law tort claim for negligence for the conduct described in
Count 8, against Defendant John Doe #3, and Defendants Hood,
Lindenberg, Ziegger, Shurzt, Phillip, and Rednour.
Based off of these claims, Plaintiff filed two separate motions for injunctive relief.
Magistrate Judge Wilkerson issued a Report and Recommendation for each (Docs. 72,
98). For the reasons set forth below the Court adopts the findings in both Reports and
Recommendations.
DISCUSSION
Where timely objections are filed, this Court must undertake a de novo review of the
Report and Recommendation. 28 U.S.C. 737(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). The Court may accept, reject or modify the

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magistrate judge’s recommended decision. Harper, 824 F. Supp. at 788. In making this
determination, the Court must look at all of the evidence contained in the record and give
fresh consideration to those issues to which specific objections have been made. Id. (quoting
12 Charles Alan Wright et al., Federal Practice and Procedure 3076.8, at p. 55 (1st ed. 1973) (1992
Pocket Part)). Where neither timely nor specific objections to the Report and
Recommendation are made, however, pursuant to 28 U.S.C. 636(b), this Court need not
conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985).

A. Plaintiff’s first motion for injunctive relief
In Plaintiff’s first motion for injunctive relief, he seeks relief against one
Defendant, Joshua Berner. Plaintiff states that Defendant Berner has be reassigned to his
housing unit and that “threats of Joshua Berner have started back up and continue to this
day ever since Berner has been assigned to the same cell house and/or gallery as I
reside…” (Doc. 70, p. 6). Plaintiff offered no further detail in this motion other than that
Defendant Berner has “shown a continuing/ongoing pattern of acting on his threats of
retaliation and causing injuries to this Plaintiff.”
Plaintiff filed a timely objection to this Report and Recommendation (Doc. 74).
While Plaintiff’s objection is very vague, he does state that Defendant Berner retaliated
against him on April 8, 2015, after he filed his second motion for injunctive relief. But the
specifics of this retaliation end there. Plaintiff fails to provide the Court with any detail
of what specific actions Defendant Berner took in retaliation against him.
As stated in the Report and Recommendation, the standard to receive a
preliminary injunction or a temporary restraining order is a high one. The Court finds

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Plaintiff’s arguments in his objection to be unavailing. In order for Plaintiff to meet his
burden, he would have to plead with more specificity the exact actions taken by
Defendant Berner. Thus, Plaintiff does not meet his burden of proof to receive a
preliminary injunction or a temporary restraining order.
B. Plaintiff’s second motion for injunctive relief
Plaintiff subsequently filed a second Motion for injunctive relief. In this motion,
Plaintiff discusses a specific event that allegedly occurred on April 8, 2015. Plaintiff
states that Defendant Berner retaliated against him by issuing a shakedown slip, which
he attached to his motion. On this same day, Defendant Berner told Plaintiff he would be
changing cells. He handcuffed Plaintiff and placed him in a shower, and he threw his
belongings down a stair case (Plaintiff heard this). Plaintiff claims that Defendant Berner
took his property including clothing, bedding, and legal paperwork, in addition to
breaking his property, which included an LCD TV screen.
A grievance, a response from the prison, and a response from the Administrative
Review Board (“ARB”) dated from August 2014 through December 2014 are attached to
this Motion. The grievance indicates that Plaintiff was not allowed access to excess
storage where his additional legal papers were kept, however, Plaintiff did not request
access to his excess legal papers in this timeframe. Plaintiff also attached an affidavit of
fellow inmate Brett L. Sharp. Mr. Sharp states he heard Defendant Berner tell Plaintiff
that he should “expect a lot of future problems and that he, Officer Berner, was
retaliating against Bentz because of recent legal action….” (Doc. 73). The affidavit
additionally states that Defendant Berner admitted to throwing Plaintiff’s belongings

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down the stairs, in addition to taking Plaintiff’s property and recommending that
Plaintiff’s legal materials be thrown in the trash.
A hearing was held before Magistrate Judge Wilkerson in which Plaintiff stated
that he was no longer housed in the gallery that is assigned to Defendant Berner, but
emphasized that there is no guarantee that he will not have future contact with
Defendant Berner. Plaintiff indicated that he has not seen Defendant Berner for at least a
month. Plaintiff further stated that his clothing is no longer an issue, but his legal
materials remain an issue. Plaintiff stated that he did not witness Defendant Berner
throw away or destroy his legal materials. In the hearing, Plaintiff made clear that his
main concern was his access to the legal materials that are kept in excess storage within
the jail. If Plaintiff has more than one correspondence box, the maximum amount
allowed in his cell, he is permitted to make one weekly request to have access to his
excess storage boxes. There is no indication that Defendant Berner has any authority
over when or if Plaintiff receives access to his excess legal storage.
No objections were made to this Report and Recommendation. The Court has
carefully reviewed Magistrate Judge Wilkerson’s Report and Recommendation.
Magistrate Judge Wilkerson carefully laid out the documentary and testimonial
evidence and thoroughly discussed his conclusion that Plaintiff is not entitled to
injunctive relief. The Court fully agrees with the findings, analysis, and conclusions of
Magistrate Judge Wilkerson regarding the issues of a preliminary injunction and a
temporary restraining order.

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CONCLUSION
Accordingly, the Court ADOPTS the Report and Recommendation filed by
Magistrate Judge Wilkerson on April 14, 2015 (Doc. 72) and the Report and
Recommendation filed by Magistrate Judge Wilkerson on October 26, 2015 (Doc. 98),
and DENIES Plaintiff’s motions for injunctive relief (Docs. 70, 73).
IT IS SO ORDERED.
DATED: January 11, 2016
_s/ Nancy J. Rosenstengel__
NANCY J. ROSENSTENGEL
United States District Judge

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