Booker v. Gleckler et al

Filing 114

ORDER ADOPTING REPORT AND RECOMMENDATIONS (Doc. 108 ) and GRANTING Defendants' Motion to Revoke Plaintiff's IFP Status (Doc. 70 ). Signed by Judge Staci M. Yandle on 8/4/2017. (tfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIE J. BOOKER,
Plaintiff,
vs.
BRYAN GLECKLER, et al.,
Defendants.

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Case No. 3:15 CV 657 SMY-RJD

MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation of United States
Magistrate Judge Reona Daly (Doc. 108) recommending that the Motion to Revoke In Forma
Pauperis Status (Doc. 70) filed by Defendants Terri Anderson, Kim Butler and Bryan Gleckler
be granted. Plaintiff filed objections (Doc. 113). For the following reasons, this Court adopts
Judge Daly’s Report and Recommendation in its entirety.
Plaintiff Willie Booker is an inmate with the Illinois Department of Corrections and is
incarcerated at Menard Correctional Center.

Defendants are employed by the Illinois

Department of Corrections. Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging
constitutional and statutory violations, including a failure to protect claim that included an
allegation of imminent danger of serious physical injury (Doc. 1). Plaintiff also moved for
injunctive relief, requesting a transfer to protective custody at Pontiac Correctional Center (Doc.
2).
The Court found that Plaintiff had sufficiently alleged imminent danger for purposes of
28 U.S.C. § 1915(g) and allowed Plaintiff to proceed in forma pauperis (“IFP”), in spite of the
three strikes Plaintiff has accumulated for filing frivolous or legally insufficient actions (Doc.

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13).

Both the motion for injunctive relief and the imminent danger allegation related to

Plaintiff’s claim that Defendants failed to protect him against threats of murder from gang
members within the facility.
On July 13, 2015, Magistrate Judge Philip Frazier held an evidentiary hearing on
Plaintiff’s motion for injunctive relief (Doc. 23).

Judge Frazier issued a Report and

Recommendation finding that Plaintiff had failed to establish a reasonable likelihood of success
on the merits or irreparable harm (Doc. 26). Plaintiff filed an amended motion for injunctive
relief which mooted the Report and Recommendation, and later withdrew the amended motion
(Doc. 51, 66, 69).
Defendants filed a motion to revoke Plaintiff’s IFP status (Doc. 70) and the Court ordered
a hearing on the credibility of Plaintiff’s § 1915(g) allegation of imminent danger (Doc. 98).
Judge Daly conducted the hearing and issued the currently pending Report and Recommendation
(Doc. 108). The Report sets forth the nature of the evidence presented by both sides as well as
the applicable law. Judge Daly concluded that Plaintiff’s allegation of imminent harm does not
articulate a specific, credible threat, but rather a more general concern associated with his status
as a sex offender and a former gang member. Plaintiff, acting pro se, filed “objections” to the
report. Plaintiff’s filing does nothing more than recite his testimony, Judge Daly’s rulings, and
his assertion that he is in imminent danger.
The undersigned must undertake a de novo review of the Report and Recommendation
because a timely objection was filed. 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b); SDILLR 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). De novo review requires the district
judge to “give fresh consideration to those issues to which specific objections have been made”

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and make a decision “based on an independent review of the evidence and arguments without
giving any presumptive weight to the magistrate judge’s conclusion.” Harper, 824 F.Supp. at
788 (citing 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st
ed. 1973) (1992 Pocket Part)); Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The
Court “may accept, reject or modify the magistrate judge’s recommended decision.” Harper,
824 F. Supp. at 788.
The Prisoner Litigation Reform Act gives authority to federal courts to allow plaintiffs to
initiate actions without prepayment of filing fees.

28 U.S.C. § 1915.

That authority is

constrained by Section 1915(g), commonly referred to as the “three strikes rule.” A dismissal on
grounds that an action is frivolous, malicious, or fails to state a claim is a strike for purposes of §
1915(g).

A prisoner who has accumulated three strikes cannot proceed without a full

prepayment of the filing fee unless he can establish that he is in imminent danger of serious
physical injury. 28 U.S.C. § 1915(g). The Seventh Circuit has explained that “imminent
danger” within the meaning of 28 U.S.C. § 1915(g) requires a “real and proximate” threat of
serious physical injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).
Courts deny leave to proceed IFP when “a prisoner’s claims of imminent danger are conclusory
or ridiculous.” Id. at 331.
At the latest hearing, Plaintiff testified that his fear of imminent danger stems from
messages conveyed to him by his former gang, the Gangster Disciples (“GDs”). In December
2014, Plaintiff received a letter he believes is from the GDs stating that he is an “enemy of the
people” and that he should have himself placed in protective custody. Plaintiff later discovered
the GDs’ plan to get a member placed in Plaintiff’s cell, supposedly to harm Plaintiff. He was
granted temporary protective custody until the matter could be investigated.

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Plaintiff

subsequently received another letter that identified him as a sex offender and threatened his life.
He was then denied protective custody and placed back into general population. In October
2015, Plaintiff was attacked by a fellow inmate who had no connections to the GDs. In February
2017, Plaintiff’s cellmate, also not a member of the GDs, attacked Plaintiff for refusing a sexual
proposition.
Jeanette Cowan testified at the hearing that she investigated the alleged threats against
Plaintiff and was unable to verify them. She stated that a more specific threat is required for
protective custody. She also testified that the intelligence department conducted its own, more
thorough investigation into the matter and also recommended that Plaintiff be denied protective
custody.
Based on a de novo review of the record and relevant evidence, the Court finds that
Plaintiff’s allegation of imminent danger is conclusory and not supported by sufficient evidence.
Internal IDOC investigations were unable to verify any imminent threat to Plaintiff and the Court
is unable to do so either. Moreover, the evidence indicates that the incidents in October 2015
and February 2017 had no relationship to the GDs or their threats. Absent a specific, credible
threat, the Court is not persuaded that Plaintiff is in imminent danger.
Accordingly, Judge Daly’s Report is adopted in its entirety and Plaintiff’s IFP status is
hereby REVOKED. Plaintiff is ADVISED that he must pay the filing fee in full ($400) before
he can proceed with his case. Plaintiff’s failure to pay the fee within 60 days of the entry of this
Order will result in the dismissal of this case with prejudice.

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IT IS SO ORDERED.
DATED: August 4, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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