Talley v. Lee et al

Filing 265

ORDER REJECTING 253 Report and Recommendation. The Court SUSTAINS Defendants' objection (Doc. 253 ) and GRANTS Defendants' Motion for Summary Judgment (Doc. 220 ). Defendants' Motion to Supplement (Doc. 243 ) is DENIED as moot. Plaintiff Durwyn Talley shall recover nothing, and his claims are DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 3/29/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DURWYN TALLEY,
Plaintiff,
vs.
TRACY LEE, JACQUELINE
LASHBROOK, WILLIAM SPILLER,
MICHAEL MONJE, BRANDON
ANTHONY, LANCE PHELPS,
KIMBERLY BUTLER, TERRI
ANDERSON, DONALD
STOLWORTHY, JEANETTE COWAN,
and ZACH FITZGERALD,
Defendants.

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Case No. 15-CV-1032-NJR-GCS

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of Magistrate
Judge Donald G. Wilkerson 1 (Doc. 253), which recommends the undersigned grant in
part and deny in part the Motion for Summary Judgment filed by Defendants Terri
Anderson, Brandon Anthony, Kimberly Butler, Jeanette Cowan, Zach Fitzgerald,
Jacqueline Lashbrook, Tracy Lee, Michael Monje, Lance Phelps, and William Spiller
(Doc. 220). The Report and Recommendation further recommends this Court deny
Defendants’ Motion to Supplement (Doc. 243). Defendants timely objected to the Report
and Recommendation (Doc. 255), and Plaintiff Durwyn Talley filed a response (Doc. 257).
For the reasons set forth below, Defendants’ objections are sustained. The Court rejects

This case was subsequently transferred to United States Magistrate Judge Gilbert C. Sison (Doc. 256)
following the retirement of Judge Wilkerson.

1

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Judge Wilkerson’s Report and Recommendation and grants summary judgment to
Defendants.
BACKGROUND
Plaintiff Durwyn Talley, an inmate of the Illinois Department of Corrections
(“IDOC”), filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging Defendants
violated his constitutional rights. After threshold review of his amended complaint Talley
was permitted to proceed on two counts:
Count 1:

Defendants conspired to retaliate against Talley for filing
grievances and lawsuits, by denying him placement in
protective custody in violation of his rights under the First
and Eighth Amendments; and

Count 2:

Defendants failed to protect Talley from an excessive risk of
harm in violation of the Eighth Amendment.

Talley’s claims in this lawsuit relate to his time at Menard Correctional Center
(“Menard”). Talley was transferred to Menard on April 9, 2014, and, upon his intake
interview with Internal Affairs, requested single-cell, protective custody segregation
status (Doc. 220-1, p. 3). Talley was concerned because he had been labeled a “stool
pigeon” by a gang called the Gangster Disciples, and the Gangster Disciples had a hit out
on him (Id., p. 4). Furthermore, Menard has an active gang count, which means “if you
have a hit out on you they’ll take care of it.” (Id.). Talley previously had a gang affiliation
with the Gangster Disciples but by that point was “nonactive and retired.” (Id., p. 6).
Talley expressed his desire to go to protective custody to an Internal Affairs officer (Id.).
At his deposition, Talley did not know the name of the Internal Affairs officer that
conducted his interview (Id., p. 4). In an affidavit attached to his response to Defendants’
motion, Talley states that the officer was Defendant Spiller (Doc. 232-1, p. 1).
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Two days later, on April 11, 2014, the officer Talley now believes to be Defendant
Spiller recommended that he be double-celled (Id., p. 2). Talley was taken to segregation
but was not placed in protective custody (Doc. 220-1, p. 6). While in segregation, Talley
received threats that he was going to be killed (Id., p. 7). Talley continued to try to get
single-cell protective custody by writing kites (notes) to Warden Butler, the Majors,
Internal Affairs, and Correctional Officer Fitzgerald, but he did not get a response (Id.).
On April 6, 2015, Talley was released from segregation and was transferred to
general population in the East House (Id., pp. 6-7). Talley was threatened by high-ranking
Gangster Disciples that were also housed in the East House (Id., p. 7). Talley again
requested protective custody by writing kites to the lieutenant and Internal Affairs. He
did not get a response to those kites (Id.). Talley also talked to his gallery officers and told
them he feared for his life and safety and he wanted to go to protective custody (Id.).
Officer Fitzgerald told Talley that people can be killed in protective custody as well and
called him stupid in front of other inmates (Id.).
At some point in early May 2015, another inmate told Talley not to go to yard
because “they gonna hit you.” (Id., p. 8). This caused Talley to send a request to mental
health stating he was suicidal and needed help (Id.). When the officer came to get Talley
to take him to the Health Care Unit, the Gangster Disciples in the East House began
yelling that they were going to stab him “when we catch you.” (Id.)
Talley spent about ten days in the Health Care Unit before he talked the mental
health workers into having the officers allow him to sign into temporary protective
custody (Id., p. 9). Talley filled out paperwork stating that he had a gang hit out on him,
that he had been labeled a “stool pigeon” for years, and that he feared for his life and
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safety (Id., p. 10). While in temporary protective custody, Talley told Defendant
Lashbrook about his situation (Id., p. 12). Talley remained in temporary protective
custody for two or three days before he was moved to North 1 Cell House (Id.).
On May 18, 2015, Jeanette Cowan and Officer Young interviewed Talley (Id., p. 10).
Talley told them about the threats against him, but Cowan told Talley he would have to
be attacked before they would allow him to get protective custody (Id.). Cowan further
told Talley that he had a bad history, he was a troublemaker, and that the inmates who
were threatening him needed to threaten him in writing before he would be put in
protective custody (Id.). When asked whether Cowan mentioned any previous grievances
or lawsuits he had filed when he was denied protective custody, Talley testified that “if
I’m not mistaken” Cowan said “she knows about my grievances. That she knows I’m a
grievance writer.” (Id.).
Cowan subsequently issued a report recommending that Talley’s request for
protective custody be denied (Doc. 220-5). She noted that his behavior was not indicative
of someone needing protection, he admitted he went on crisis watch to manipulate his
housing, and, in fact, others may need protection from him considering his history of
assaults on others (Id.). She further stated that “[h]is behavior also shows that he
manipulates his housing—this time he wants out of a max joint back to a medium.” (Id.).
Officer Young also concluded that the request should be denied, as there was no
documented history of Talley being a snitch, and “the intel office feels as if he is using all
means necessary to manipulate his housing assignment.” (Id.). The Warden concurred in
this decision on May 19, 2015 (Id.).
Talley appealed the decision not to place him in protective custody to the
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Administrative Review Board (“ARB”) (Id., p. 11). Defendant Terri Anderson, a
chairperson on the ARB, held a hearing on Talley’s appeal (Id.; Doc. 220-6). Talley told
Anderson about the threats he had received, being labeled a stool pigeon, and that he
feared for his life and safety (Id.). He also claimed that Internal Affairs destroyed his
intake interview document because he had two lawsuits against them (Doc. 220-6). The
ARB found that Talley had signed into protective custody at Pontiac Correctional Center
in 2011 for essentially the same reason, only to sign out two days later (Id.). Furthermore,
Internal Affairs could not confirm that Talley had provided information on other inmates
(Id.). Based on a review of all information, Anderson found there was insufficient
information to warrant Talley going to protective custody and recommended he go to
general population (Id.).
On April 1, 2015, Talley went to general population in the North 2 Cell House
(Doc. 220-2). He was never attacked by any other inmates at Menard, and he has since
been transferred to another institution (Doc. 220-1, pp. 12, 17).
Talley testified that he has filed other lawsuits against Butler, Fitzgerald, and
Lashbrook and that, while he did not have direct evidence of their knowledge of the suits,
he had circumstantial evidence in the form of “repeated misconduct that [he] experienced
and endured at the hands of the defendants in this case who works as a unit” (Id., p. 13).
Talley admitted he has not filed grievances or lawsuits against any of the other
named Defendants, except that he filed grievances against “Internal Affairs” in general
because they act “as a whole, one unit.” (Id.). He also admitted he had no direct evidence
that any Defendants were aware of his previous lawsuits, but asserted he had
circumstantial evidence in the form of the “repeated misconduct” he “endured at the
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hand of the defendants.” (Id.). Nevertheless, he stated that he believed he was denied
protective custody for filing lawsuits and grievances because of “the whole attitude of
the interview” with Cowan and the fact that his request was quickly denied (Id., p. 16).
On April 11, 2018, Defendants filed a Motion for Summary Judgment (Doc. 220).
Defendants first argue that Talley cannot succeed on his failure to protect claim because
he never suffered any actual physical harm and because he has no evidence that
Defendants acted with malicious or sadistic intent (Id.). They further argue he cannot
succeed on his retaliation claim when there is no evidence that Talley’s First Amendment
activity was the reason Defendants decided to deny protective custody (Id.). Finally, they
argue that, even if Talley’s constitutional rights were violated, Defendants Anthony,
Butler, Cowan, Fitzgerald, Lashbrook, Lee, Monje, Phelps, Spiller, and Stolworthy were
not personally involved in any constitutional violation, Defendants are entitled to
qualified immunity, Talley is not entitled to compensatory damages under the Prison
Litigation Reform Act (“PLRA”) without any physical injury, and Talley is not entitled to
punitive damages.
In response, Talley argues there are genuine issues of material fact that preclude
summary judgment (Doc. 220). He asserts he repeatedly complained to prison staff that
there was gang hit out on him, but Defendants ignored him. He further claims
Defendants showed malicious intent by denying him protective custody in April 2014
without doing an investigation and again in May 2015. He further contends that while
Defendants assert there is no evidence of retaliation, they did not address his conspiracy
claim in Count 1 and, thus, have waived that argument. And, he asserts, a plaintiff can
use circumstantial evidence to establish a conspiracy as long as the evidence is not
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speculative. Finally, he contends he is entitled to compensatory, punitive, and any other
damages the Court may award.
On August 8, 2018, Defendants filed a motion for leave to file a supplemental
declaration in support of their motion for summary judgment (Doc. 243). The motion
states that defense counsel was provided with new information relevant to the case from
Defendant Stolworthy. Accordingly, they seek to supplement their summary judgment
motion with a declaration from Defendant Stolworthy.
THE REPORT AND RECOMMENDATION
On December 21, 2018, Judge Wilkerson entered a Report and Recommendation
that recommends the undersigned deny Defendants’ motion for leave to supplement and
grant in part and deny in part their motion for summary judgment (Doc. 253).
With regard to Count 1, Judge Wilkerson was unpersuaded by Defendants’
argument that there is no evidence they were aware of any lawsuits or grievances that
Talley filed against them. He further found that Defendants did not address whether
Talley’s grievances and/or lawsuits could have motivated all Defendants, in general, to
retaliate against him. Thus, there is a question of fact as to whether Talley’s general
litigation activities were a motivating factor in Defendant Cowan’s decision to
recommend that protective custody be denied. Accordingly, Judge Wilkerson
recommends that Defendants be denied summary judgment on Count 1.
Judge Wilkerson further recommends that summary judgment be denied on
Count 2 because there is no requirement under current Seventh Circuit case law that a
prisoner show evidence of physical injury, and Defendants do not address whether
Talley could be entitled to nominal damages or injunctive relief.
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With regard to Defendants’ argument that only Defendant Anderson was
personally involved in any potential constitutional violation, Judge Wilkerson noted that
omissions can violate civil rights, and a supervisor’s explicit or implicit approval of such
omissions can lead to Section 1983 liability.
Finally, Judge Wilkerson found that while there is a question of fact as to whether
any of Defendants did anything to provide Talley with protection, there is no evidence
that Defendant Stolworthy retaliated against Talley as Stolworthy was only sued in his
supervisory capacity for failing to manage Defendant Anderson. Because supervisory
officials can delegate investigations into the needs of individual inmates to persons
capable of making such investigations, i.e., Defendant Anderson, Talley’s claim against
Stolworthy should fail as a matter of law.
Judge Wilkerson also recommended denying Defendants’ qualified immunity
claim without further discussion, as well as Defendants’ motion to supplement their
motion because they provided no good cause for doing so.
DEFENDANTS’ OBJECTION
On January 7, 2019, Defendants filed an objection to the Report and
Recommendation. (Doc. 255). Defendants argue that Judge Wilkerson conflated the
issues of whether Talley has an injury sufficient to state a claim and whether the PLRA
allows recovery in absence of a physical injury. While Section 1997e(e) does allow for
nominal damages, the issue concerning the type of relief a plaintiff may receive is separate
from whether a plaintiff has proved an injury that entitles them to relief. Because Talley
has conceded that he did not suffer a physical injury, and because he has offered no
evidence to prove he suffered a psychological injury rising to the level required for an
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Eighth Amendment violation, he cannot meet the required elements of a failure to protect
claim.
Second, Defendants argue, even if Defendants Fitzgerald, Lashbrook, and Butler
were aware of a concurrent suit against them as well as former cases against Defendant
Butler, none of the other Defendants are aware of any lawsuits. And while Talley has
filed grievances against the “Internal Affairs Unit” generally, these Defendants
themselves are unaware of any grievance against them. Judge Wilkerson’s presumption
otherwise, they argue, is based on speculation and conjecture.
Talley filed a response to the objection on January 25, 2019 (Doc. 257), in which he
argues he is entitled to relief in the form of nominal and punitive damages. He also claims
he submitted proof that Defendants were aware of his lawsuits in that they worked as
“a unit” and that his ill treatment upon transfer to Menard supports this awareness.
LEGAL STANDARD
When timely objections are filed, the Court must undertake de novo review of the
Report and Recommendation. 28 U.S.C. § 636(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). This requires the Court to look at all evidence
contained in the record, give fresh consideration to those issues to which specific
objections have made, 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). If only a “partial objection is
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made, the district judge reviews those unobjected portions for clear error.” Johnson v.
Zema Systems Corp., 170 F.3d 734,739 (7th Cir. 1999). The Court may then “accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
Summary judgment must be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes
Wheels Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008). The moving party bears the burden
of establishing that no material facts are in genuine dispute; any doubt as to the existence
of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 160 (1970).
In responding to a motion for summary judgment, the nonmoving party may not
simply rest upon the allegations contained in the pleadings, but must present specific
facts to show a genuine issue of material fact exists. Celotex, 477 U.S. at 322–26; Anderson,
477 U.S. at 256–57. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247,
or by “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact only
exists if “a fair-minded jury could return a verdict for the [nonmoving party] on the
evidence presented.” Anderson, 477 U.S. at 252.
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DISCUSSION
A.

Conspiracy to Retaliate
To prevail on a conspiracy claim, “the plaintiff must show that (1) the individuals

reached an agreement to deprive him of his constitutional rights, and (2) overt acts in
furtherance actually deprived him of those rights.” Daugherty v. Page, 906 F.3d 606, 612
(7th Cir. 2018) (quoting Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015)). “Because
conspiracies are often carried out clandestinely and direct evidence is rarely available,
plaintiffs can use circumstantial evidence to establish a conspiracy, but such evidence
cannot be speculative.” Id. (quoting Beaman, 776 F.3d at 511).
Because Talley must show Defendants’ overt acts actually deprived him of his First
Amendment rights, he must first demonstrate that Defendants retaliated against him. To
succeed on a retaliation claim, a prisoner must show (1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation likely to deter such activity; and
(3) the First Amendment activity was at least a motivating factor in the decision to impose
the deprivation. Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014) (citing Thayer v.
Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012)).
After the plaintiff has made his prima facie showing, the burden shifts to the
defendants to rebut the causal inference raised by plaintiff’s evidence. Mays v. Springborn,
719 F.3d 631, 635 (7th Cir. 2013) (once the plaintiff makes his prima facie case, “[t]he burden
then shifts to the defendants to show that they would have taken the action despite the
bad motive”).
Here, the only non-speculative evidence in support of Talley’s claim that his
lawsuits and grievances were a motivating factor in Defendants’ decision to deny him
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protective custody is his testimony that Defendant Cowan said he was a “grievance
writer” in his protective custody interview. Accordingly, construing the facts in the light
most favorable to Talley, the evidence in the record shows that he wrote grievances;
Cowan called him a “grievance writer”; and Cowan subsequently recommended that his
protective custody status be denied. The Court finds this insufficient to establish a prima
facie case of retaliation, given the other reasoning that Cowan provided in her report.
Even if Talley’s First Amendment activity was a motivating factor for denying his
protective custody status, there is evidence that Defendants would have denied Talley
protective custody despite anyway. Cowan and Young stated in their reports that Talley’s
behavior indicated he did not actually need protection, and there was no documented
history of him being a snitch. Both officers also noted that Talley appeared to be
attempting to manipulate his housing situation. The Chief Administrative Officer denied
Talley protective custody based on the information in Cowan and Young’s reports, which
made no mention of his grievance writing or lawsuits. Furthermore, the ARB held an
independent hearing on the matter, during which Talley was personally interviewed.
Based on the information before it, as well as Talley’s statement, the ARB concluded there
was insufficient information to warrant Talley’s placement in protective custody.
Because Defendants have met their burden of showing Talley’s request for
protective custody would have been denied in the absence of any bad motive, Talley has
not shown he was retaliated against. And because he has not established any First
Amendment retaliation, his conspiracy claim must fail.
B.

Failure to Protect
To state a failure-to-protect claim, a plaintiff must allege facts from which a court
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could conclude that (1) he faces a substantial risk of serious harm and (2) the defendants
knew of and disregarded that risk. Wilson v. Ryker, 451 F. App’x 588, 589 (7th Cir. 2011)
(citing Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)). A generalized risk of violence is
not enough, however, “for prisons are inherently dangerous places.” Id. (citing Brown v.
Budz, 398 F.3d 904, 909, 913 (7th Cir. 2005). The threat must also reflect that the inmate is
subject to a substantial risk of future harm, one that is “almost certain to materialize if
nothing is done.” Id.
In Babcock v. White, the facts of which were discussed by Judge Wilkerson and
described as “strikingly similar” to the facts here, the Seventh Circuit addressed the
question of “whether or not a . . . prisoner who was not assaulted by, and who is no longer
at risk from, fellow inmates may nevertheless maintain a . . . claim for money damages
based solely on prison officials’ past failure to take measures to protect the prisoner from
inmates known to pose a danger to the prisoner.” 2 Babcock v. White, 102 F.3d 267, 270 (7th
Cir. 1996). The answer is no, at least where the “exposure to risk of harm cannot be said
to result from an official’s malicious or sadistic intent.” Id. The Court then compared
Eighth Amendment claims to tort law, which requires an element of injury, reading
Farmer v. Brennan as speaking to the duty owed by prison officials in failure-to-protect
cases. Id. at 271 (citing Farmer v. Brennan, 511 U.S. 825 (1994). “Farmer is largely silent as
to the injury element, presumably because in that case, the injury was clear: Farmer
allegedly had been raped and beaten as a result of the defendants’ breach of their duty
not to knowingly subject him to a substantial risk of serious harm.” Id. While an Eighth

There is no motion for injunctive relief pending, and Talley admits that he has since been transferred to
another prison.
2

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Amendment claim is not an ordinary tort, the Court explored the bounds of the Eighth
Amendment’s prohibition against cruel and unusual punishment, asking “what harm
must actually befall the prisoner before a court may say that he is entitled to monetary
compensation for a violation of his Eighth Amendment rights?” Id. at 271.
One answer to that question would be that no harm is necessary, if at least nominal
damages are assumed. Id. But the Court found that approach was not appropriate in the
Eighth Amendment deliberate indifference context. Id. The Court concluded that
“[h]owever legitimate Babcock’s fears may have been, we nevertheless believe that it is
the reasonably preventable assault itself, rather than any fear of assault, that gives rise to
a compensable claim under the Eighth Amendment.” Id. at 272. What Babcock ultimately
was alleging is the same as Talley is alleging here: “not a ‘failure to prevent harm,’ but a
failure to prevent exposure to risk of harm.” Id. (quoting Farmer, 511 U.S. at 834).
The Court also distinguished between Eighth Amendment excessive force cases
and conditions-of-confinement cases, noting that failure-to-protect cases fall within the
latter category. Id. at 273. In excessive force cases, a prisoner need not allege or prove
“significant injury” to recover damages. Id. But extreme deprivations are required to
make out a conditions-of-confinement claim. Id. Here, Talley has not demonstrated any
such deprivation. See id. And while Judge Wilkerson relied on Calhoun v. DeTella to
distinguish Babcock, Calhoun was an excessive force case. Accordingly, the Court finds
that discussion unpersuasive.
Talley also has not proven that Defendants’ failure to take measures to protect him
from inmates was the result of malicious or sadistic intent. While he points to the quick
decision in April 2014 by Defendant Spiller to deny him protective custody without doing
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an investigation, he provides no evidence of the normal procedure for determining such
issues or how Defendant Spiller deviated from those procedures. And with regard to the
May 2015 decision, an investigation clearly was completed, all the way through appeal
to the ARB. Neither of these actions demonstrate malicious or sadistic intent.
Accordingly, the Court finds that Defendants are entitled to judgment on Talley’s failureto-protect claim.
CONCLUSION
For these reasons, the Court SUSTAINS Defendants’ objection (Doc. 255) and
REJECTS the Report and Recommendation (Doc. 253). Defendants’ Motion for Summary
Judgment (Doc. 220) is GRANTED. Defendants’ Motion to Supplement (Doc. 243) is
DENIED as moot.
Plaintiff Durwyn Talley shall recover nothing, and his claims are DISMISSED
with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: March 29, 2019
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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