Duncan v. Quinn et al

Filing 148

ORDER: For the reasons stated in the attached memorandum and order, all of Duncan's objections (Docs. 105 , 107 , 132 , 134 , & 139 ) are OVERRULED. The Court ADOPTS Judge Williams' report and recommendation (Doc. 127 ) in full, DENI ES Duncan's pre-report motions for preliminary injunctions (Docs. 108 , 109 , & 116 ), and GRANTS the defendants' motion to revoke Duncan's pauper status (Doc. 99 ). Duncan's pauper status is REVOKED, and he is ordered to pay the full filing fee for this case by Monday, May 16, 2016 or his case will be dismissed. The Court further DENIES Duncan's motion to compel discovery responses without prejudice (Doc. 119 ), DENIES Duncan's recent pauper motion (Doc. 133 ), DENIES Duncan's new motion for an emergency preliminary injunction (Doc. 140 ), DENIES Duncan's motion to stay all proceedings as MOOT (Doc. 143 ), and DENIES his recent motion to appoint counsel to assist him in this case without prejudice (Doc. 146 ). Signed by Chief Judge Michael J. Reagan on 4/15/2016. (wtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRYL R. DUNCAN,
Plaintiff,
vs.
THOMAS SPILLER,
JEFF MILLER,
ERIC WANGLER,
DONALD WANACK,
JARROD SELBY,
MICHAEL OBERTINI, and
JOHN WOLFE,
Defendants.

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Case No. 15-cv-0087-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
On January 28, 2015, Plaintiff Daryl Duncan, then a prisoner incarcerated at the
Pinckneyville Correctional Center, filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983. His complaint named a whopping thirty-nine defendants, alleging that
some of them assaulted him at Pinckneyville, that some denied him medical care at the
prison, and that others imposed barriers to his release.

Duncan’s complaint was

screened pursuant to 28 U.S.C. § 1915A and a great many of his medical- and barriertype claims were dismissed without prejudice, largely because they had nothing to do
with his assault claims and therefore violated the joinder rule. See FED. R. CIV. P. 18(a).
His assault claims proceeded through screening, but only because, at threshold, the
Court was of the view that Duncan had alleged that he was in danger at the time he
filed his complaint. Federal statute gives indigent prisoners the privilege of proceeding
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with a lawsuit without paying the full filing fee up front, but largely withdraws that
subsidy from prisoners who have a history of frivolous litigation—those prisoners can
only get the subsidy if they are in serious danger when they filed their complaint. 28
U.S.C. § 1915; Lewis v. Sullivan, 279 F.3d 526, 527 (7th Cir. 2002). Duncan had a history
of frivolous litigation, see Duncan v. Quin, No. 14-cv-00604, 2014 WL 2522719, at *3
(S.D. Ill. June 4, 2014), so he was subject to the three-strikes bar (and its exception).
The defendants in this case, at least the ones that survived threshold review,
believed that Duncan was being deceptive and wasn’t actually in danger when he filed
his complaint. On September 1, 2015, they filed a motion to revoke Duncan’s pauper
status. The magistrate judge held a hearing on that motion and then issued a report
and recommendation, advising that the motion be granted. Based on the evidence
presented at the hearing, the magistrate was of the view that Duncan was a liar who
was attempting to trump up his claims to get around the pauper barrier.

The

magistrate judge also provided a recommendation on Duncan’s outstanding requests
for injunctive relief, advising that they be denied because they sought relief on claims
that had nothing to do with the ones made in his complaint.

Duncan has filed

objections to the magistrate judge’s report, and the report is now ripe for review.
While a pauper determination is not the right vehicle to assess the merits of the
entire suit, a defendant may challenge the plaintiff’s claims of danger before the merits
of a case are finished, and the Court can conduct a hearing on that challenge to
determine whether the plaintiff was truly in danger when he filed his complaint and
whether his pauper grant should hold up. Taylor v. Watkins, 623 F.3d 483, 485 (7th
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Cir. 2010).

Allowing for that kind of challenge makes good sense if the three-strikes

barrier is to have any force—if there was no way to mount a challenge to a grant of
pauper status for struck-out prisoners, a prisoner could inundate the courts with
frivolous claims, rack up strikes, and then lie about being in danger so as to avoid the
three-strikes barrier, effectively rendering the barrier a dead letter. Id. If the evidence
at the revocation hearing shows that there was a “real and proximate” danger when the
complaint was filed, pauper status will be upheld; if not, pauper status will be revoked,
and the prisoner will need to pay the Court’s filing fee to proceed with his case.
Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003).
The Court has reviewed the record and is of the view that the magistrate judge
was right to conclude that Duncan lied about being in danger when he filed his
complaint. Duncan mentioned a number of officer assaults at Pinckneyville in his
original complaint, all leading the Court to provisionally rule that he was in danger and
could proceed as a pauper despite his litigation history. Duncan said that Officer Miller
broke his wrist on August 2, 2014; that Officers Miller, Wanack, and Wangler drug him
to his cell and attacked him on September 29, 2014; that Officer Wangler kicked him on
October 21, 2014; that Officer Miller pushed, elbowed, and threatened to kill him on
October 29, 2014; that Officer Selby pushed him into a wall on December 2, 2014; that
Officers Selby and Obertini pushed him into a wall and hit him in the face on December
16, 2014; and that Officer Wolfe put his foot on Duncan’s arm and stopped him from
taking his medication on January 8, 2015. A motion filed by Duncan on February 9,
2015 documented more assaults in that same month.
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The motion was vague, but

Duncan clarified at the pauper hearing that Miller pushed him on February 5th, that
Wanack hit him on February 6th, and that Wangler threatened him on February 7th.
The record and the testimony at the hearing show that Duncan is dissembling
about these attacks, and thus wasn’t in serious danger when his complaint was filed.
Take the alleged assault on August 2, 2014, when Officer Miller allegedly dragged
Duncan by his handcuffs and broke his wrist. The complaint and many other filings
after it emphatically said that Miller broke Duncan’s wrist, but the medical evidence
decisively shows that Miller’s wrist was never broken, that he was told as much by
medical staff before he filed his complaint, and that he had the medical records showing
that his wrist was not fractured early in this case, before he continued to state in filings
that his wrist was fractured during the attack. If those lies weren’t enough, the record
also shows that Miller wasn’t even working at the prison on the day in question.
Duncan didn’t just lie about the events of August 2014—there is evidence
showing that he dissembled about the September 29, 2014 assault as well. Duncan said
that he was assaulted by Miller, Wangler, and Wanack on that date while they were
escorting him them through the prison, but the grievance Duncan submitted one day
later made no mention of an assault, referenced Wangler alone in the statement of what
happened, and alleged only that Duncan was threatened, denied medical care, and
denied a disability accommodation.

Duncan didn’t mention the assault at his

disciplinary hearing on October 12, 2014 either, nor is there any medical record
documenting an injury from the assault. The absence of a medical record might be
understandable from a prisoner who was afraid of further attacks by guards, but that
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explanation loses force with a prisoner like Duncan—the record shows that he isn’t shy
about making his injuries known to medical staff at the prison. All of these points cast
doubt on Duncan’s allegations of danger, and that doubt is amplified by the fact that
Wangler wasn’t even assigned to escort duties at the prison until November 2014.
There are more inconsistencies between Duncan’s allegations of danger and the
record.

Duncan accused Officer Obertini of assaulting him with Officer Selby on

December 16, 2014, but Obertini was not even physically assigned to Pinckneyville’s
prison facility on that date, and was completely off work from his nearby assignment at
the DuQuoin Impact Incarceration Program in any event.

Duncan testified at the

pauper hearing that Officer Wanack hit or threatened him on February 6, 2014, but the
evidence shows that Wanack wasn’t at work that day, either. Duncan said in his
complaint that Officer Wangler opened his cell door and hit him for no reason on
October 21, 2014, but he offered no testimony on this incident when invited to at the
pauper hearing. Duncan said that Wangler hit him on February 9, 2015, but stated at
the hearing that Wangler merely threatened him on that date. There are many more
inconsistencies documented in Judge Williams’ report, and the ones laid out above and
the ones in the report show that Duncan is not credible and that he lied about being in
imminent danger to get his complaint past the three-strikes bar.
Duncan has filed two documents objecting to Judge Williams’ recommendation
on the pauper point. He first says that he was in danger when he filed his complaint
and Judge Williams’ rulings on that point are incorrect, but he makes no effort to
address any of the inconsistencies laid out in Judge Williams’ report and
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recommendation, and as the Court said above, those clearly show that Duncan wasn’t
in danger when he filed his complaint. Duncan also says that he is in danger now, but
“imminent danger” in the pauper sense is evaluated at the time the complaint was filed.
E.g., Heimermann, 337 F.3d at 782; Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.
2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). His current dangers
matter if he files a federal civil rights case about what’s happening at his current prison
and he files a motion to proceed as a pauper in that case; they have no bearing here. At
the end of the day, Duncan’s objections concerning pauper revocation are
unconvincing, so the Court will adopt Judge Williams’ recommendation on that point.
There are a few other matters to attend to—through his responses to the
magistrate’s report and through other filings, Duncan contests a number of the
magistrate’s non-pauper rulings. His loudest objection is to the magistrate’s denials of
his many motions to file amended complaints, but those denials were correct—the
joinder rules precluded all of Duncan’s efforts to amend. Frequent filers like Duncan
should know that the joinder rules stop prisoners from dumping unrelated claims
against different defendants into one stewpot of a case, both to prevent the
administrative mess that those kinds of cases cause and to make sure that prisoners pay
filing fees and run up proper strikes. Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 683 (7th Cir. 2012). Take an example not unlike this case. A prisoner files a 25page handwritten, single-spaced complaint against 50 defendants, targeting five
defendants for engaging in one type of conduct, ten for engaging in another, and so on,
all amounting to five discrete events. Without the joinder rules, a prisoner would pay
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one fee for a case that was really five, and will incur no strikes for frivolous complaints
even if four of the five groups of claims are dismissed at threshold screening. With the
joinder rules—and with a healthy dose of skepticism towards conclusory conspiracy
allegations used to tie clearly unrelated claims together—the five cases are broken apart,
the cases are capable of easy (or at least easier) administration by the courts, and proper
fees and strikes are assessed. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Fiftyclaim, fifty-defendant complaints have become popular since the Seventh Circuit ruled
that one meritorious claim in a sea of frivolousness incurs no strikes, Turley v. Gaetz,
625 F.3d 1005, 1008 (7th Cir. 2010), and these types of blunderbuss complaints are a
drain on the courts, especially courts filled to the brim with prisons. The joinder rules
help fix that problem, and they block Duncan from bringing unrelated claims into this
case by way of his motions to amend. Those motions were rightly denied.
The rest of Duncan’s objections don’t warrant extended discussion. He claims
that the magistrate judge erred by denying his motions for counsel, but those rulings
were correct. Based on Duncan’s filings to date, he has the ability to litigate his case, at
least for purposes of the pauper issue and discovery. He claims that the magistrate
judge erred by not compelling the defendants to respond to discovery in his July 1, 2015
order, but at that time, Duncan hadn’t filed a motion to compel. He insists that the
magistrate judge erred in recommending that his motions for preliminary injunctive
relief be denied and in denying past requests for injunctive relief, but the injunctive
requests in those motions—like Duncan’s efforts to amend his complaint—concerned
matters unmoored to the original complaint. Duncan can’t show a likelihood of success
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on a cause of action that’s not before the Court, so the injunctive motions couldn’t be
granted. Duncan finally insists that the magistrate erred by denying his motion for
discovery sanctions, but the magistrate properly ruled that no sanctions were needed
because the defendants sent responses and resent them when Duncan claimed he didn’t
receive them. All in all, Duncan’s objections lack merit, and they will be overruled.
Duncan has also filed a number of motions since Judge Williams entered his
report and recommendation. All of those motions are similar to his previous ones, and
all of them will be denied. Duncan’s motion to proceed as a pauper is meritless: the
claims of imminent danger in his original complaint aren’t credible, so he is subject to
the three-strikes barrier.

Duncan’s new motion for preliminary injunctive relief

concerns events outside of the events at issue in his original complaint, and thus fails
for the same reason his earlier motions failed. Duncan’s motion to stay all proceedings
is moot, as the basis for the stay was his pending preliminary injunction request, and
that request will be denied. His new motion for counsel must be denied because
Duncan’s filings show that he can litigate this case, at least through pauper matters and
discovery. Finally, his motion to compel discovery is undeveloped and premature—
Duncan says he sent discovery to the defendants and they didn’t answer, but he hasn’t
attached that discovery to his motion, the defendants deny receiving it, and Duncan has
made no effort to meet and confer with counsel to work out the problem. His reply
indicates that he has resubmitted the discovery, so if Duncan pays the fee to proceed
with this case, he can move to compel again, presuming the defendants fail to respond.

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To sum up, all of Duncan’s objections (Docs. 105, 107, 132, 134, & 139) are
OVERRULED. The Court ADOPTS Judge Williams’ report and recommendation (Doc.
127) in full, DENIES Duncan’s pre-report motions for preliminary injunctions (Docs.
108, 109, & 116), and GRANTS the defendants’ motion to revoke Duncan’s pauper
status (Doc. 99). Duncan’s pauper status is REVOKED, and he is ordered to pay the
full filing fee for this case by Monday, May 16, 2016 or his case will be dismissed. The
Court further DENIES Duncan’s motion to compel discovery responses without
prejudice (Doc. 119), DENIES Duncan’s recent pauper motion (Doc. 133), DENIES
Duncan’s new motion for an emergency preliminary injunction (Doc. 140), DENIES
Duncan’s motion to stay all proceedings as MOOT (Doc. 143), and DENIES his recent
motion to appoint counsel to assist him in this case without prejudice (Doc. 146).
IT IS SO ORDERED.
DATED: April 15, 2016
/s/ Michael J. Reagan
Chief Judge Michael J. Reagan
United States District Court

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