Booker v. Gleckler et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Plaintiff's motion for temporary restraining order and motion for preliminary injunction (Doc. 4) is hereby REFERRED to United States Magistrate Judge Frazier, who shall hold an expedited hearing as soon as practicable, and issue a report and recommendation. Signed by Judge Staci M. Yandle on 7/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE J. BOOKER, # B-61837,
Plaintiff,
vs.
BRYAN GLECKLER and
TERRI ANDERSON,
Defendants.

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Case No. 15-cv-00657-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Willie J. Booker, an inmate at Menard Correctional Center (“Menard”), brings
this action for alleged deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. The
action was originally filed in the United States District Court for the Northern District of Illinois,
but was transferred to this District on June 11, 2015 pursuant to 28 U.S.C. 1404(a). (See Doc. 5).
In addition to the complaint (Doc. 1), Plaintiff has filed a motion for temporary restraining order
(“TRO”) and a motion for preliminary injunction (Doc. 4), as well as a motion for leave to
proceed in forma pauperis (“IFP”) (Doc. 3). Under 28 U.S.C. § 1915A, the Court is required to
conduct a prompt threshold review of the complaint.
Pursuant to 28 U.S.C. § 1915, a federal court may permit a prisoner who is indigent to
bring a “suit, action or proceeding, civil or criminal,” without prepayment of fees upon
presentation of an affidavit stating the prisoner’s assets together with “the nature of the
action . . . and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1).
However, even when a plaintiff has tendered an affidavit of indigence that is sufficient as to
form, he may nonetheless be barred by 28 U.S.C. § 1915(g)
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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
A review of documents filed in the electronic docket of this Court, and on the Public
Access to Court Electronic Records (“PACER”) website (www.pacer.gov), reveals that Plaintiff
has had three cases dismissed as frivolous or for failure to state a claim upon which relief may be
granted. 1 See Booker v. City of Rkfd., IL, Case No. 03-cv-50066 (N.D. Ill., dismissed March 27,
2003); Booker v. Mitchell, Case No. 10-cv-0312 (S.D. Ill., dismissed November 5, 2010); Booker
v. O’Conner, Case No. 15-cv-50052 (N.D. Ill., dismissed April 14, 2015). 2

As such, 28 U.S.C.

§ 1915(g) bars Plaintiff from proceeding IFP unless he is “under imminent danger of serious
physical injury.” Therefore, for Plaintiff to proceed with this case in forma pauperis and on his
motion for TRO, he must satisfy the Court that he is in imminent danger.
The Complaint
Plaintiff, a convicted sex offender and former member of the Gangster Disciples, is
confined at Menard Correctional Center, a maximum security correctional center in Illinois.
(Doc. 1, p. 4). He is classified as severely mentally ill and has been diagnosed with paranoid
schizophrenia. Id. He has been housed at Menard since 2004. (See Doc. 1, Ex. 2).
On December 12, 2014, Plaintiff received a letter stating that he had been declared an
enemy of the people and that he had 72 hours to check himself into protective custody. Id.

1

Court documents are, of course, public records of which the Court can take judicial notice. See Henson v. CSC
Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
2
Plaintiff has filed an appeal on Booker v. O’Conner, Case No. 15-cv-50052. Nonetheless, the district court’s
dismissal counts as a strike for purposes of 1915(g) review until such time as the strike has been overturned. See
Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015).
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Plaintiff disposed of the letter. Id. A few days later, members of the Gangster Disciples were
trying to get Plaintiff moved into a particular cell on the gallery. In “fear of his life,” Plaintiff
requested to be placed in protective custody, and on December 22, 2014, he was placed in
protective custody. Id. at 5. The next day, Plaintiff was interviewed and informed staff about
the threatening letter he had received, but was unable to produce it because he had thrown it
away. Id. That night, he received a second letter, which stated, “Face [his nickname] look at the
picture. We know what you are there is no cellhouse you can go in if you bring your sex
offender ass out of protective custody were gonna kill you.” Id. (errors in original). Attached to
the letter was a computer printout, which contained Plaintiff’s photo and information related to
his conviction for aggravated criminal sexual assault. Id. On December 29, 2014, Plaintiff was
informed that he had been denied placement in protective custody.
Plaintiff filed a grievance challenging the decision to deny him protective custody and
appeared before the Administrative Review Board, including Defendant Anderson, on February
4, 2015. Id. Plaintiff testified that he was afraid his former gang members were going to kill him
because he refused to participate in their activities and also because he refused to provide legal
assistance to his former gang members. Id. at 6. Plaintiff was interviewed by additional staff
members on later dates and provided them with a copy of the second letter he received on
December 23, 2014. Id. at 7.
In a report dated February 4, 2015, Defendant Anderson found that there was no
information available to confirm the validity of the letter and that the letter did not seem
“logical.” Id. at Ex. 2. On this basis, the Board recommended denying Plaintiff’s request for
protective custody, and Defendant Gleckler concurred. Id. at 7.
On March 20, 2015, Plaintiff was transferred out of protective custody and back into the

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general population at Menard. Id. At that time, Plaintiff attempted to sign back in to protective
custody, but was denied. Plaintiff, in fear of his safety, began experiencing chest pains. He was
admitted to the health care unit a few days later. Id. at 8. While in the health care unit, Plaintiff
went on a hunger strike in an attempt to prevent his return to general population. Id. Plaintiff’s
hunger strike lasted approximately 43 days, during which time he lost 29 pounds. Id. at 10.
From May 1 through May 5, prison officials force-fed Plaintiff. Id. at 9. Plaintiff ended his
hunger strike on May 5 and was sent to segregation the next day. Id. Warden Butler placed
Plaintiff on one-man cell status to ensure Plaintiff’s safety. Id. Plaintiff remains in segregation,
according to the complaint, but he still fears for his safety and refuses to come out of his cell at
any time when he might have contact with other inmates. Id. at 10. Plaintiff has been diagnosed
with a severe mental illness. Plaintiff contends that his present isolation is causing his mental
health to further deteriorate. Id.
Imminent Danger
The first question the Court must address is whether Plaintiff has sufficiently pled that he
is in imminent danger. Because Plaintiff has accumulated three strikes, he may only proceed
without prepaying court fees, if the Court finds that he is in imminent danger.
The United States Court of Appeals for 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)
(citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). In general, courts “deny leave to
proceed IFP when a prisoner’s claims of imminent danger are conclusory or ridiculous.” Id. at
331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)). Additionally,
“[a]llegations of past harm do not suffice” to show imminent danger; rather, “the harm must be

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imminent or occurring at the time the complaint is filed,” and when prisoners “allege only a past
injury that has not recurred, courts deny them leave to proceed IFP.” Id. at 330 (citing AbdulWadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).
Although the bar for establishing imminent danger is indeed high, it is not
insurmountable. In Lewis v. Sullivan, the Seventh Circuit cautioned that for § 1915(g) to “serve
its role as an escape hatch for genuine emergencies” it must be “understood reasonably.” Lewis
v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). The court in Lewis went on to explain:
If limited to situations in which, say, a beating is ongoing, no prisoner will find
solace; once the beating starts, it is too late to avoid the physical injury; and once
the beating is over the prisoner is no longer in “imminent danger” . . . . Reading
the imminent-danger language this way would make it chimerical, a cruel joke on
prisoners.
Id. In another case the Seventh Circuit considered whether an allegation that an inmate is
guaranteed to be returned to surroundings that will place him in harm's way is sufficient to meet
the exception in § 1915(g) for imminent danger. See Jones v. Morton, 409 F. App'x 936 (7th Cir.
2010). In that case, the court noted that it was “inclined to agree” that a string of threats made
against the plaintiff “established with sufficient probability that imminent danger awaited him”
even though the plaintiff was not presently in danger. Id. at 937. Again, the court warned, “The
timing of imminent danger is relative, particularly given the pace of litigation. We have
cautioned against a ‘chimerical’ interpretation of imminent danger; the relevant time frame is not
limited to the exact moment an inmate faces assault.” Id.
In this case, Plaintiff claims that he has received two menacing letters from members of
his former gang, one threatening to kill him if he came out of his cell. Plaintiff was in such fear
for his safety that he went on a hunger strike for 43 days (and lost 29 pounds) in order to avoid
being placed back in general population. These facts satisfy the Court that Plaintiff may be in

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imminent danger. Therefore, Plaintiff’s motion for IFP (Doc. 3) is GRANTED. The particulars
regarding Plaintiff’s initial partial filing fee will be addressed by the Court in a separate order.
Merits Review Pursuant to 28 U.S.C. § 1915A
Having found that Plaintiff may be in imminent danger, the Court next considers the
merits of Plaintiff’s claims as required by 28 U.S.C. § 1915A. Under § 1915A, the Court is
required to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief
may be granted, or seek monetary relief from an immune defendant.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to
relief must cross “the line between possibility and plausibility.” Id. at 557. Conversely, a
complaint is plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Analysis
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
finds it appropriate to organize the claims in Plaintiff’s pro se complaint, as shown below. The
parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit.

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Accepting Plaintiff’s allegations as true, as the Court must do at this preliminary stage,
the Court finds that Plaintiff may proceed on the following claims:
Constitutional Claim
Count 1:

Eighth Amendment failure to protect claim

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). In
order to state a failure to protect claim, a plaintiff must show that he is incarcerated under
conditions posing a substantial risk of serious harm, and that the defendants acted with
“deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must
prove that prison officials were aware of a specific, impending, and substantial threat to his
safety, often by showing that he complained to prison officials about a specific threat to his
safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996).
Under 42 U.S.C. § 1983, a state official sued in his individual capacity may be held liable
if he “caused or participated in a constitutional deprivation.” Sheik-Abdi v. McClellan, 37 F.3d
1240, 1248 (7th Cir. 1994) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); see
also Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). Typically, an official
who rules “against a prisoner on an administrative complaint does not cause or contribute to the
violation. A guard who stands and watches while another guard beats a prisoner violates the
Constitution; a guard who rejects an administrative complaint about a completed act of
misconduct does not.” George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (emphasis added).
In other words, the official “must know about the conduct and facilitate it, approve it, condone it,
or turn a blind eye....” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (citations omitted).

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In this case, Plaintiff alleges that prison officials’ denial of his request for protective
custody places him at substantial risk of serious harm. Further, Plaintiff asserts that Defendants
Gleckler (Director of the Illinois Department of Corrections) and Anderson (Chair of the
Administrative Review Board) are liable because they condoned the decision to deny Plaintiff
protective custody, despite having knowledge that Plaintiff’s life has been threatened. Whether
Defendants Gleckler and Anderson, as top administrators, had the requisite knowledge remains
to be seen. But at this stage, Plaintiff may proceed on his claim for monetary damages against
them bearing two caveats in mind.
First, state officials may not be sued for monetary damages in their official capacity in
federal court. See Kentucky v. Graham, 473 U.S. 159, 169 (1985). Therefore, Defendants
Gleckler and Anderson may only be sued for monetary damages, in their individual capacities.
Second, Plaintiff maintains that he believes his safety is at risk; however, at this time, Plaintiff
has not suffered any physical injury. Under the Prison Litigation Reform Act, a court may not
award compensatory damages for non-physical harm. See 42 U.S.C. 1997e(e); Thomas v.
Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012). Nonetheless, Plaintiff may seek nominal or
punitive damages against Defendants, if he is able to prove that Defendants exposed him to a
substantial risk of injury. See Smith v. Peters, 631 F.3d 418, 421 (7th Cir. 2011) (“Prison
officials who recklessly expose a prisoner to a substantial risk of a serious physical injury violate
his Eighth Amendment rights, [and may be liable for] nominal and . . . punitive damages.”)
As for Plaintiff’s request for injunctive relief, a plaintiff may proceed against a state
official in his or her official capacity for purposes of injunctive relief, but typically, in a claim for
injunctive relief, the government official who is responsible for carrying out the requested relief
would be named as a defendant in his or her official capacity. See Gonzalez v. Feinerman, 663

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F.3d 311, 315 (7th Cir. 2011). In the context of prison litigation, the official is usually the
warden of the institution where the inmate is incarcerated. As such, Plaintiff may proceed
against the Warden of Menard, in her official capacity, but not against Defendants Gleckler or
Anderson. Therefore, the Clerk shall be directed to add the Warden of Menard, in her official
capacity, as a Defendant in this action for purposes of injunctive relief only. See FED. R. CIV. P.
21; FED. R. CIV. P. 17(d). 3
Supplemental State Law Claims
In addition to the Eighth Amendment claim, Plaintiff asserts two Illinois state law claims.
Where a district court has original jurisdiction over a civil action such as a § 1983 claim, it also
has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so
long as the state claims “derive from a common nucleus of operative fact” with the original
federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose
factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir.
2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Plaintiff’s state law claims (battery and intentional infliction of emotional distress) arise out of
the same events that gave rise to his federal claim. As such, the Court will exercise supplemental
jurisdiction over these additional state law claims. Plaintiff may proceed against Defendants
Gleckler and Anderson, in their individual capacities, on his Illinois state law battery claim
(Count 2) and his Illinois state law intentional infliction of emotional distress claim (Count 3).
Motion for Temporary Restraining Order and Motion for Preliminary Injunction
Having reviewed Plaintiff’s motion for temporary restraining order and motion for
3

Federal Rule of Civil Procedure 21states in pertinent part: “On motion or on its own, the court may at
any time, on just terms, add or drop a party.” Rule 17(d) provides: “A public officer who . . . is sued in
an official capacity may be designated by official title rather than by name, but the court may order that
the officer’s name be added.”
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preliminary injunction (Doc. 4) and memorandum in support of the motions (Doc. 11), the Court
finds that the motion for temporary restraining order and motion for a preliminary injunction
deserve immediate consideration. Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.1(c), Plaintiff’s motion for temporary restraining order and motion for preliminary
injunction (Doc. 4) is hereby REFERRED to United States Magistrate Judge Frazier, who shall
hold an expedited hearing as soon as practicable, and issue a report and recommendation. The
period for filing any objections to the report and recommendation shall not exceed 14 days from
the date of the report. Any motions filed after the date of this Order that relate to the request for
injunctive relief or seek leave to amend the complaint are also hereby REFERRED to Judge
Frazier.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s claim for damages against Defendants
GLECKLER and ANDERSON on COUNTS 1, 2, and 3 shall proceed.
IT IS FURTHER ORDERED that the Clerk of Court is DIRECTED to add as a
Defendant, the WARDEN OF MENARD, in her official capacity, for purposes of injunctive
relief on COUNT 1.
IT IS FURTHER ORDERED that Plaintiff’s motion for a temporary restraining order is
DENIED, but Plaintiff’s motion for a preliminary injunction shall proceed as discussed above.
The Clerk of Court shall prepare for Defendants GLECKLER, ANDERSON, and
WARDEN OF MENARD: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a
Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail
these forms, a copy of the complaint (Doc. 1), a copy of the emergency motion (Doc. 4) and
memorandum in support of the motion (Doc. 11), and this Memorandum and Order to

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Defendants’ place of employment as identified by Plaintiff. If Defendants fail to sign and return
the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms
were sent, the Clerk shall take appropriate steps to effect formal service on Defendants, and the
Court will require Defendants to pay the full costs of formal service, to the extent authorized by
the Federal Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the defendant’s current work address, or, if
not known, his or her last-known address. This information shall be used only for sending the
forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Frazier for further pre-trial proceedings, which shall include a determination on the
pending motion for temporary restraining order and motion for preliminary injunction (Doc. 4).
Further, this entire matter shall be REFERRED to United States Magistrate Judge

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Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 6, 2015
s/ STACI M. YANDLE
UNITED STATES DISTRICT JUDGE

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