Duncan v. Quinn et al

Filing 130

ORDER: For the reasons stated herein, the Court agrees with the conclusions reached by Magistrate Judge Williams. Therefore, the Court REJECTS Plaintiffs objections (Doc. 123) and ADOPTS the Report and Recommendations in its entirety (Doc. 118). The Court REVOKES the Plaintiffs IFP status and ORDERS the Plaintiff to pay the full filing fee within thirty (30) days of the entry of this Order. Failure to pay the full filing fee will result in a dismissal of this action. The Court also DENIES Plaintiffs latest request for IFP status (Doc. 124). Signed by Chief Judge Michael J. Reagan on 1/6/16. (mea)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRYL R. DUNCAN,
Plaintiff,
vs.
THOMAS SPILLER,
EDWARDS, and
CHRISTINE BROWN,
Defendants.

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Case No. 14-cv-1167-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
A. Introduction and Procedural Background
Pro se Plaintiff Darryl Duncan, currently incarcerated at Dixon Correction Center,
filed this complaint pursuant to 42 U.S.C. § 1983 on October 28, 2014, raising multiple
claims against numerous defendants related to his prior incarceration at Pinckneyville
Correctional Center (Doc. 1). As narrowed by the Court’s threshold review under 28
U.S.C. § 1915A, the Court found that the Plaintiff had raised a viable claim under §
1983, arguing the deliberate indifference of the Defendants to his serious medical needs
(Doc. 5). Specifically, he argued that the Defendants purposefully denied him treatment
and pain medication related to injuries he had sustained in the months prior to his
filing, as well as being denied medication for gout, hypertension, and asthma (Id.).

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Contemporaneously, Plaintiff additionally sought to proceed in forma pauperis
(“IFP”) (Doc. 2).

Unlike most civil litigants, this request was somewhat more

complicated in his case, due to the Plaintiff’s history of filing claims deemed frivolous
or denied pursuant to Federal Rule of Civil Procedure 12(b)(6) (see Doc. 5 at 3-4). As
this had happened at least three times prior to the filing of the instant case (Id.), the
Court noted that, pursuant to 28 U.S.C. § 1915(g), IFP could only be considered where
“the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g)
(the so-called “three strikes rule”). However, based only upon a cursory examination of
the complaint, the Court found that Duncan’s allegations appeared to meet this
threshold (Doc. 5 at 9). The Plaintiff was allowed to proceed, both as to the complaint
and as to his pauper status on this single claim of deliberate indifference (Id.). The
remaining claims and defendants were either dismissed or severed, and the case was
referred to the Honorable Stephen C. Williams, United States Magistrate Judge on
November 3, 2014 (Doc. 5).
After the referral, the Plaintiff filed numerous “emergency” motions for
preliminary injunction and motions for temporary restraining orders (see, e.g., Docs. 15,
30, 35, 37, 38, 47, and 57). Judge Williams conducted a motion hearing on March 12,
2015 (Doc. 41), taking the various motions under advisement. On April 20, 2015, Judge
Williams issued a Report and Recommendations (“R&R”) (Doc. 58). In the lengthy and
thorough R&R, Judge Williams recommended that the undersigned District Judge deny

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all of the Plaintiff’s motions for injunctive relief (Id. at 15). Based upon the record,
including evidence provided by the parties and testimony from the Plaintiff, Judge
Williams concluded that the Plaintiff “has no chance of success on his claims” (Id.). See
Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010) (preliminary injunction movant must
show that he is likely to succeed on the merits). The Plaintiff objected to the R&R
(Doc. 60), but prior to a ruling by the Court (which would have adopted the R&R in all
respects), the Plaintiff informed the Court that he was no longer in custody of the
Defendants, thus mooting his injunctive requests (Doc. 77). See City of Los Angeles v.
Lyons, 461 U.S. 95, 109 (1983).

Plaintiff later violated his parole and was again

incarcerated, this time at Dixon Correctional Center.
On September 1, 2015, Defendants filed a motion seeking to revoke the Plaintiff’s
IFP status (Doc. 104). Put simply, the Defendants contest the Plaintiff’s allegations of
imminent danger which, due to his status under 28 U.S.C. § 1915(g), is required for any
finding of pauper status (Id. at 1). Defendants pointed to Judge Williams initial R&R,
which detailed his reasoning for finding the Plaintiff not to be in imminent danger (Id.
at 2). Based upon these findings, the Defendants requested that the Plaintiff’s IFP status
be revoked (Id. at 3).
The Plaintiff responded (Doc. 110) and filed a supplement to that response (Doc.
115). Fully briefed, Judge Williams conducted a motion hearing on October 7, 2015,
pursuant to 28 U.S.C. § 636(b)(1)(B) (Doc. 113). See also Taylor v. Watkins, 623 F.3d

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483, 485 (7th Cir. 2010) (“When a defendant contests a plaintiff’s claims of imminent
danger, a court must act to resolve the conflict.”)
Based upon the parties’ briefs and testimony during the hearing, Magistrate
Judge Williams submitted a second R&R, recommending that the Court revoke the
Plaintiff’s IFP status and ordering the Plaintiff to pay the full filing fee within a
reasonable period of time (Doc. 118 at 1).

Specifically, Judge Williams found that

Plaintiff’s contention that he was in imminent danger of serious harm at the time he
filed the Complaint (a requirement given the Plaintiff’s status under 28 U.S.C. § 1915) to
be not credible (Id. at 10). Plaintiff filed a timely objection to the R&R (Doc. 123).
Timely objections having been filed, the Court undertakes de novo review of the
portions to the Report to which Plaintiff specifically objected. 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b); SDIL-LR 73.1(b). The undersigned can accept, reject, or modify
Magistrate Judge Williams’ recommendations, receive further evidence, or recommit
the matter with instructions. Id. For the reasons stated below, the Court ADOPTS
Magistrate Judge Williams’ recommendations, REVOKES the Plaintiff’s IFP status and
ORDERS the Plaintiff to pay the full filing fee within a reasonable period of time.
B. Judge Williams’ Second R&R
As he did in the initial R&R from April 2015, Magistrate Judge Williams did a
thorough overview of the Plaintiff’s complaints, building a timeline from testimony and
relevant records. Based upon this information, Judge Williams concluded that the

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Plaintiff’s testimony was not credible, after consideration of a sizeable number of
changes between the language of his complaint and that of later testimony and
supporting documents.
As an example, Judge Williams notes that in the Plaintiff’s complaint, he stated
that he had not received his blood pressure medication for two weeks (Doc. 118 at 8). In
his later testimony on March 12, 2015, he stated that the delay was in excess of a month
and as much as two months (Id.; see Doc. 46 at 12). Further, records submitted into
evidence (Doc. 22-1) demonstrate that medical staff was actively monitoring the
Plaintiff’s blood pressure, which directly contradicts the Plaintiff’s complaint and later
motions for injunctive relief (Doc. 118 at 8).
The records also contradict the Plaintiff’s statement that staff had failed to treat
him for a broken wrist, allegedly sustained on August 2, 2014 (Doc. 1 at 1). According
to his medical records, the Plaintiff did not report an injury to his wrist on or around
that date, and when he was seen on August 5, 2014 (Doc. 118 at 9, he directed staff to a
small bump on his toe, rather than the broken wrist he claims he received only three
days earlier (Doc. 22-1 at 43). Having gone untreated, the pain from his alleged injury
should have been his primary concern, but no mention is made. It is not until a month
later that the record demonstrate wrist pain (Id. at 46), and nothing to suggest a broken
wrist. Later x-rays confirmed that the Plaintiff’s wrist had never been broken (Doc. 97
at 15). These inconsistencies, but a few of the many discussed by Judge Williams in his

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R&R, directly impugn the Plaintiff’s credibility with the Court and clearly demonstrate
the rationale for concluding that the Plaintiff was not in imminent danger.
C. Plaintiff’s Objection
Plaintiff’s objection consists of eight handwritten pages (Doc. 123). The Plaintiff
first takes issue with the cases which the Defendants relied upon. He discusses the
Third Circuit case of Gibbs v. Roman, 116 F.3d 83, 86-87 (3d Cir. 1997) (cited in Taylor),
noting that “[t]his case does not pertain to [his] issue” (Doc. 123 at 1). He adds that
while Gibbs speaks to the denial of legal documents, the Plaintiff was denied critical
medications (Id.). The Plaintiff reads Gibbs far too narrowly. The critical language in
Gibbs addresses the “imminent danger” alleged in a complaint, without concern as to
what the danger is:
We hold, therefore, that a complaint alleging imminent danger—even if
brought after the prior dismissal of three frivolous complaints—must be
credited as having satisfied the threshold criterion of § 1915(g) unless the
“imminent danger” element is challenged. If the defendant, after service,
challenges the allegations of imminent danger (as Roman has done here
on appeal), the district court must then determine whether the plaintiff's
allegation of imminent danger is credible, as of the time the alleged
incident occurred, in order for the plaintiff to proceed on the merits [IFP].
Of course, if the defendant disproves the charge that the plaintiff was
placed in imminent danger at the time of the incident alleged, then the
threshold criterion of § 1915(g) will not have been satisfied and the
plaintiff may not proceed absent the payment of the requisite filing fee.
116 F.3d at 86, overruled on other grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307,
312 (3d Cir. 2001) (“[A] prisoner may invoke the imminent danger exception only to
seek relief from a danger which is imminent at the time the complaint is filed.”).
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Similarly, he argues that Taylor is inapposite, as the Defendants “did not object
timely nor did they object/contest at the hearing that was held” to the Plaintiff’s claim of
“imminent danger” (Doc. 123 at 1). Here, the Plaintiff’s reading of Taylor is simply
wrong—unchallenged allegations are accepted as true, but challenged allegations must
be examined to determine whether the allegations of imminent danger were supported
by evidence. 623 F.3d at 485, citing Gibbs, 116 F.3d at 86. The Magistrate Judge did so
in this case, and determined that the allegations were not supported by the evidence.
The fact that the Defendants did not object at a given time is inconsequential, only that
they ultimately did challenge the allegation.1
He finally questions the Defendants’ use of Ammons v. Hannula, but here again
the Plaintiff reads the district court’s ruling too narrowly. 2009 WL 799670 at *3 (W.D.
Wis. Mar. 24, 2009). In Ammons, the plaintiff was also subject to the “three strikes rule”
due to prior filings and was initially granted IFP status based upon allegations of
imminent danger of serious physical harm. Id. at *1.2 After a denial of a preliminary
injunction, the Defendants moved for dismissal, arguing that the denial was
“tantamount to a finding that there is no imminent danger of harm.” Id. at *3 (internal
The Court is aware of the requirements under Ciarpaglini v. Saini, wherein a Court should not make its
own determinations of the strength of the claims made by a Plaintiff in his complaint. 352 F.3d 328, 33031 (7th Cir. 2003). The Court is not doing so, but is instead addressing the underlying question, raised by
the Defendants, of whether the Plaintiff was in “imminent danger” at the time of his complaint, which a
Court should not “blindly accept.” Taylor, 623 F.3d at 486. As the Taylor court noted, to do otherwise
“would mean that a three-strikes plaintiff could proceed IFP whenever his allegations of imminent
danger were facially plausible, even if the defendant had incontrovertible proof that rebutted those
allegations.” Id.
2 Interestingly, Mr. Ammons was also suffering from a wrist injury which he claims was not treated.
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quotation marks removed). The district judge, though believing the evidence to date
demonstrated a lack of imminent danger, allowed the Plaintiff the opportunity to show
cause why the case should not be dismissed—in essence to demonstrate that he was in
imminent danger as he had alleged. Id. at *4-5. The Court doubts that a more parallel
case could be found.
Much of the remainder of the Plaintiff’s objection is an overview of the legal
grounds for granting IFP to a three strikes prisoner under the “imminent danger”
exception (Doc. 123 at 2-3), the demonstration of indecency necessary to be found in
forma pauperis (Id. at 3), the requirements for a preliminary injunction (Id. at 3-4),
grounds for granting an amended complaint (Id. at 4-5), his basis for sanctions against
the Defendants (Id. at 5), and other requests of the Court (Id. at 5-6). While the Court
commends the legal research the Plaintiff has conducted, it is unresponsive to Judge
Williams’ R&R.
The final portion of the Plaintiff’s objection discusses issues of “retaliation” and
“reprisal” against the Plaintiff, namely for his filing of complaints, including this one.
In addition to being vague, unsubstantiated,3 and previously addressed by the Court on
numerous occasions (see, e.g., Doc. 5 at 4-7), these statements are unresponsive to Judge
Williams’ R&R. The Court again reminds the Plaintiff that the only live claim in this

The Plaintiff makes several accusations of retaliation against him throughout the document. These
allegations are generally ambiguous and in all cases unsupported with evidence. See Doc. 123 at 1 (“I’m
still in imminent danger, due to the fact that something in the near future my [sic] happen again.”).
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matter is whether the Defendants were deliberately indifferent to his serious medical
needs (Id. at 9). As the Plaintiff’s claims of retaliation against him are not directly
related to the underlying claims in this case and to Judge Williams’ recommendations,
the Court shall disregard them until such time as they are properly before the Court.4
D. Analysis
There is no question that the Plaintiff has previously received three strikes and
must demonstrate “imminent danger” in order to proceed IFP. 28 U.S.C. § 1915(g). At
threshold, the Court did not conduct a detailed analysis of the Plaintiff’s allegations,
and merely assumed them to be true, as the Seventh Circuit requires. Ciarpaglini, 352
F.3d at 330-31. The Defendants have since challenged these allegations, requiring the
Court to do evaluate the credibility of the allegations. Taylor, 623 F.3d at 485. The
Magistrate Judge has done precisely that and no more, and has recommended that this
Court find that the Plaintiff’s allegations are not credible. In objecting, the Plaintiff has
clearly demonstrated that he disagrees with the Magistrate Judge’s R&R, but has not
provided the Court with any basis to disagree with the findings. Under § 1915(g), he
cannot demonstrate that, at the time he filed his complaint, he was in imminent danger,
and therefore cannot proceed in forma pauperis.

The Court acknowledges that the Plaintiff has filed what appear to be the same objections in his
companion case, 15-cv-0087-MJR-SCW. (See Doc. 132.) The Court shall presume that these statements are
more directly related to that case, and admonishes the Plaintiff for filing duplicate objections in different
cases.
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E. Conclusion
For the reasons stated herein, the Court agrees with the conclusions reached by
Magistrate Judge Williams. Therefore, the Court REJECTS Plaintiff’s objections (Doc.
123) and ADOPTS the Report and Recommendations in its entirety (Doc. 118). The
Court REVOKES the Plaintiff’s IFP status and ORDERS the Plaintiff to pay the full
filing fee within thirty (30) days of the entry of this Order. Failure to pay the full filing
fee will result in a dismissal of this action. The Court also DENIES Plaintiff’s latest
request for IFP status (Doc. 124).

IT IS SO ORDERED.
DATED:

January 6, 2016
s/ Michael J. Reagan
Michael J. Reagan
Chief Judge
United States District Court

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