Talley v. Lee et al

Filing 65

ORDER. The Court DENIES all pending motions for temporary restraining order and/or preliminary injunction 6 10 29 38 55 , ADOPTS Magistrate Judge Wilkerson's Report and Recommendation 30 , and REJECTS as moot the earlier filed Report and Recommendation 27 . Signed by Judge Nancy J. Rosenstengel on 5/6/2016. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DURWYN TALLEY,

)
)
Plaintiff,
)
)
vs.
)
)
TRACY LEE, JACQUELINE
)
LASHBROOK, WILLIAM ANDREW
)
SPILLER, MAJ MONJE, BRANDON
)
ANTHONY, LANCE PHELPS,
)
KIMBERLY BUTLER, TERRI
)
ANDERSON, DONALD
)
STOLWORTHY, MS. COWAN, and C/O )
FITZGERALD,
)
)
Defendants.
)

Case No. 3:15-CV-1032-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Reports and Recommendations of United
States Magistrate Judge Donald G. Wilkerson entered on October 9, 2015, and October
14, 2015 (Docs. 27, 30). 1 Magistrate Judge Wilkerson recommends that Plaintiff Durwyn
Talley’s Motions for Temporary Restraining Order and Preliminary Injunction (Docs. 6,
10, and 29) be denied. Talley filed a timely objection to the Reports and
Recommendations on October 19, 2015 (Doc. 34).
Shortly after filing his objection, Talley filed another Motion for a Temporary

The later filed Report and Recommendation (Doc. 30) is labeled an Amended Report and
Recommendation; it was filed to address a “Supplemental Motion in Support of Temporary
Restraining Order and Preliminary Injunction” (Doc. 29) filed by Talley after the first Report and
Recommendation was issued. Thus, the first Report and Recommendation (Doc. 27) is moot.
1

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Restraining Order and Preliminary Injunction (Doc. 38). Magistrate Judge Wilkerson
took that motion under advisement (see Doc. 42), and Defendants filed a timely response
to the motion (see Doc. 44). 2 Since then, Talley has filed two supplements to the later
filed motion (see Docs. 50, 51), a reply to Defendants’ response to the motion (Doc. 52),
and another supplemental motion in support of the motion seeking injunctive relief
(Doc. 55). Defendants have responded to all of Talley’s filings seeking injunctive relief
(see Docs. 56, 58).
BACKGROUND
Durwyn Talley is currently an inmate at Western Illinois Correctional Center
(“Western”) in Mt. Sterling, Illinois. He filed this pro se lawsuit pursuant to 42 U.S.C. §
1983 alleging that he was in imminent danger and was being denied protective custody
while he was housed at Menard Correctional Center (“Menard”). Talley claims that he
notified Menard officials that there was a “gang hit” out on him because he had been
labeled a “stool pigeon.” Talley alleges that Defendants refused to do anything to help
him because of the numerous grievances and lawsuits he has filed against them. The
complaint was screened pursuant to 28 U.S.C. § 1915A, and Talley was permitted to
move forward on one count against Defendants for conspiring to retaliate against him
for filing grievances and lawsuits by denying him placement in protective custody in
violation of his rights under the First and Eighth Amendments (Doc. 5).
The complaint was read to include a motion for a preliminary injunction (Doc. 5).
Defendants also filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
(see Docs. 45, 46), and Talley filed a written response (Doc. 57). That motion will be addressed by
separate order. Magistrate Judge Wilkerson stayed discovery pending a ruling on the motions
seeking injunctive relief and the motion to dismiss (see Doc. 61).
2

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Two days after filing his complaint, Talley formalized his motion seeking a preliminary
injunction (Doc. 6). Talley filed another motion for a preliminary injunction and a
temporary restraining order on September 28, 2015 (Doc. 10). As set forth above, Talley
has continued to seek injunctive relief, even after being transferred from Menard to
Pinckneyville Correctional Center (“Pinckneyville”), and finally to Western. 3
Magistrate Judge Wilkerson held a hearing on October 2, 2015; Talley appeared
by videoconference, and Defendants appeared through counsel (Doc. 23). At the
conclusion of the hearing, Magistrate Judge Wilkerson directed Defendants to have
Talley’s grievance counselor at Menard, Mr. Brad Bramlet, file an affidavit. An affidavit
was filed on October 6, 2015 (see Doc. 22).
DISCUSSION
I.

REPORT AND RECOMMENDATION

Where timely objections are filed, the court must undertake a 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). Where neither timely nor specific
objections to the Report and Recommendation are made, however, the court need not
conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S.
140 (1985). Instead, the court should review the Report and Recommendation for clear
According to notices of change of address Talley filed with the Court, Talley was transferred
from Menard to Pinckneyville (see Doc. 37) and from Pinckneyville to Western (see Doc. 53).
According to the official website of the Illinois Department of Corrections, he remains at
Western.
See https://www.illinois.gov/IDOC/OFFENDER/Pages/InmateSearch.aspx (last accessed
May 6, 2016).
3

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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).
As mentioned above, Talley filed an objection to Magistrate Judge Wilkerson’s
Reports and Recommendations on October 19, 2015 (Doc. 34). He sets forth several
issues in his objection where he believes Magistrate Judge Wilkerson erred. First, Talley
objects to Magistrate Judge Wilkerson’s finding that he was not credible in his claims
that he was being threatened by fellow inmates. Secondly, Talley objects to Magistrate
Judge Wilkerson’s conclusion that he never requested protective custody while housed
at Menard. Finally, Talley objects to Magistrate Judge Wilkerson’s discussion of his
request to be transferred to a different facility.
A. CREDIBILITY FINDINGS
After a review of the record, the Court adopts Magistrate Judge Wilkerson’s
credibility findings. See United States v. Raddatz, 447 U.S. 667 (1979). After observing
Talley’s testimony, Magistrate Judge Wilkerson found that Talley is “prone to
exaggeration in his assertions of danger” (Doc. 30, p. 3). Magistrate Judge Wilkerson also
concluded that some of Talley’s beliefs may be supported by an actual event, but it is
more likely that they are “based on assumptions and conjectures.” (Id).
Talley claims in his objection that fellow inmates were threatening to harm him
“if he kept filing lawsuits [and] threatening him because of his stool pigeon status” (Doc.
34, p. 1). But Talley offers no evidence to support this assertion, and it does not appear
that Talley was ever attacked while he was housed at Menard. Talley appears again to be
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exaggerating his circumstances. The Court finds that what Talley labels as a threat was a
warning from fellow inmates about the repercussions Talley might face if he continues to
file lawsuits, rather than a threat of actual harm.
B. PROTECTIVE CUSTODY
Talley also objects to the finding that he never sought protective custody while
housed at Menard (Id., p. 2). He argues that Magistrate Judge Wilkerson also erred in
finding that Counselor Bramlet had only been Talley’s counselor for one month (Id., pp.
3-4). Talley also states that Magistrate Judge Wilkerson was incorrect in his finding that
he never sought protective custody, “[b]ecause the defendants have submitted no
evidence to rebut plaintiff’s claims that his request for protective custody was denied”
(Id., p. 2). Because Talley is the one seeking to be placed in protective custody, it is his
burden, not Defendants’, to meet the threshold requirements for a preliminary
injunction. Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir. 1984)
(“Besides showing that he has no adequate remedy at law and that he will suffer
irreparable harm unless the preliminary injunction is granted, the plaintiff has another
threshold to cross: that of showing some likelihood of succeeding on the merits.”). Thus,
Defendants have no responsibility to provide the Court with evidence that may or not
may support Talley’s contention.
Talley also argues that Counselor Bramlet was dishonest in his affidavit in stating
that he has only been Talley’s counselor for 30 days (Doc. 34, pp. 3-4). Talley cites to
another case currently in this district court, Talley v. Trost, et. al, No. 14-cv-948-SCW,
stating that he filed a supplemental complaint in this matter that will prove that he
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requested protective custody in May 2015, was denied protective custody, and that
Counselor Bramlet was his counselor during this time. In the case before Magistrate
Judge Williams, Talley’s supplemental complaint sought to add a claim and twelve new
defendants, alleging that the defendants attempted to delay and destroy his legal mail.
In that case, Talley’s request was ultimately denied because the underlying action
concerned deliberate indifference to his serious medical need, which is wholly unrelated
to delayed or destroyed mail. Nothing in the supplemental complaint relates to Talley’s
alleged request for protective custody. Talley’s assertion that this supplemental
complaint will provide the Court with evidence that he was denied protective custody
fails.
Further, the Court rejects Talley’s objection that Counselor Bramlet is being
dishonest in his statement that he has only been his counselor for one month (Doc. 34, p.
5). Talley’s only support for this objection is that Counselor Bramlet was his counselor
when he was allegedly sought protective custody in May 2015 (Id.). As discussed above,
however, there is no evidence before the Court that proves Talley ever sought protective
custody. Due to lack of evidence, the Court rejects Talley’s objection that he sought
protective custody and that Counselor Bramlet was untruthful in his statement that he
was Talley’s counselor for one month.
C. FACILITY TRANSFER
Talley further objects to Magistrate Judge Wilkerson’s discussion of his transfer to
a new facility. Talley states that this “had nothing to do with whether or not plaintiff was
receiving threats from inmates in his immediate surroundings” (Doc. 34, p. 2).
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Magistrate Judge Wilkerson discussed Talley’s transfer to a new facility because in his
motion Talley states that he “seeks an immediate transfer to Pontiac Correctional
Center’s–protective custody under a single-cell status, or a transfer back to a
medium-security prison where there is no active gang count.” (Doc. 10, p. 5).
Magistrate Judge Wilkerson concluded that Talley was not entitled to an
injunction ordering that he be transferred to a new facility because he was already in the
process of being transferred (Doc. 30, p. 7). Magistrate Judge Wilkerson also found, and
the undersigned agrees, that Talley’s desire to be in a particular facility is secondary to
the responsibility of the Illinois Department of Corrections to house him in a facility that
meets his security requirements (Id.). Additionally, it was not within Magistrate Judge
Wilkerson’s authority to direct the Illinois Department of Corrections to transfer Talley
to a different facility. See Shango v. Jurich, 681 F.2d 1091, 1098 (7th Cir.1982) (“interprison
transfers obviously are not ‘mindless events;’ rather, ‘transfers between institutions. . .
are made for a variety of reasons and often involve no more than informed predictions
as to what would best serve institutional security or the safety and welfare of the
inmate.’ . . . Such discretionary decisions are the business of penologists and ‘are not the
business of federal judges.’”) (citing Meachum v. Fano, 427 U.S. 215, 226-229 (1976)).
The Court also notes Talley’s motions are likely moot because he was granted the
relief sought when he was transferred from Menard to Pinckneyville and then to
Western. It is well established that when a prisoner is transferred to another prison, his
requests for injunctive relief against officials of the first prison are moot unless “he can
demonstrate that he is likely to be retransferred.” Higgason v. Farley, 83 F.3d 807, 811 (7th
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Cir. 1996) (citation omitted); See also Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011).
Currently, there is no evidence before the Court to suggest that Talley is likely to be
retransferred to Menard, meaning his motions are likely moot.
II.

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

As mentioned above, after the Reports and Recommendations were issued, Talley
was transferred to Pinckneyville and then to Western, yet he continues to file motions
seeking injunctive relief. Thus, the Court will address those motions now.
In his numerous filings, Talley seeks both a temporary restraining order and a
preliminary injunction. The major difference between the two remedies is that the
former is issued prior to notice to an adverse party. The goal of a temporary restraining
order is to maintain the status quo until a hearing can be had on a motion for a
preliminary injunction. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 45 U.S. 442,
439 (1974)(“[T]emporary restraining orders are no doubt necessary in certain
circumstances . . . but under federal law they should be restricted to serving their
underlying purpose of preserving the status quo and preventing irreparable harm just so
long as is necessary to hold a hearing, and no longer.”).
A preliminary injunction is an “extraordinary and drastic remedy” for which
there must be a “clear showing” that a plaintiff is entitled to relief. Mazurek v. Armstrong,
520 U.S. 968, 972 (1997) (quoting 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §2948 (5th ed. 1995)). The purpose
of such an injunction is “to minimize the hardship to the parties pending the ultimate
resolution of the lawsuit.” Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). Talley
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has the burden of demonstrating (1) a reasonable likelihood of success on the merits;
(2) no adequate remedy at law; and (3) irreparable harm absent the injunction. See
Planned Parenthood v. Commissioner of Indiana State Dep’t of Health, 699 F.3d 962, 972 (7th
Cir. 2012).
As to the first hurdle, the Court must determine whether “plaintiff has any
likelihood of success–in other words, a greater than negligible chance of winning.” AM
General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002). Once Talley has
met his burden, the Court must weigh “the balance of harm to the parties if the
injunction is granted or denied and also evaluate the effect of an injunction on the public
interest.” Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). “This equitable balancing
proceeds on a sliding-scale analysis; the greater the likelihood of success of the merits,
the less heavily the balance of harms must tip in the moving party’s favor.” Korte, 735
F.3d at 665. In addition, the Prison Litigation Reform Act provides that a preliminary
injunction must be “narrowly drawn, extend no further than necessary to correct the
harm . . . ,” and “be the least intrusive means necessary to correct that harm.” 18 U.S.C.
§ 3626(a)(2). Finally, pursuant to Federal Rule of Civil Procedure 65(d)(2), a preliminary
injunction would bind only the parties, their officers or agents, or persons in active
concert with the parties or their agents.
While Talley was housed at Pinckneyville, he sought a transfer to another facility
because of his encounters with particular inmates. Specifically, Talley claims he began
receiving death threats from a “Vice Lord-gang chief, Devin Franklin A.K.A. Baby Lord”
(Doc. 38). He further claims that prison officials should have kept him and Baby Lord
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apart because he was on Talley’s “keep separate from list” (Id). In Talley’s supplement to
this motion, he claims on November 16, 2015, he encountered inmate “Koolaid-A.K.A.
Orin Spann” while he was visiting the healthcare center at Pinckneyville (Docs. 50, 51, p.
1). Talley asserts that he placed “Koolaid-A.K.A. Orin Spann” on his “keep separate
from list” while he was housed at Menard (Id.). Talley claims that if he did not appear on
his “keep separate from list” it was because Menard personal intentionally deleted him
(Id., p. 2.).
After Talley was housed at Pinckneyville, he was transferred to Western. On the
same day that Talley notified the Court of his change of address, he filed a supplemental
motion to his motion for a preliminary injunction and a temporary restraining order
(Doc. 55). In this supplemental motion, Talley complains of his transfer to Western
because he has pending lawsuits against “the wardens and the Internal Affairs staff” (Id.,
p. 3).
Talley’s motion for a temporary restraining order (Doc. 38) seeks the same relief
sought in Talley’s original motions for a temporary restraining order, which Magistrate
Judge Wilkerson recommended denying. Due to the Court’s previous finding that Talley
is “prone to exaggeration,” it is not likely that Talley was facing irreparable harm at the
time he filed this motion for a temporary restraining order (Doc 30, p. 3). Granny Goose
Foods, Inc., 415 U.S. at 239 (holding that temporary restraining order should be issued to
preserve “the status quo and prevent[] irreparable harm”).
Talley requested a preliminary injunction by seeking a transfer from both
Pinckneyville and Western (see Doc. 55). Talley requests these transfers because he states
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that he once again feels unsafe where he is housed (Docs. 38, 55). Again, Magistrate
Judge Wilkerson found Talley is prone to exaggerations and falsities. Indeed, he makes
large sweeping allegations without any factual support. Talley offers this Court no new
evidence that would allow it to find that Talley’s allegations in his most recent motions
seeking injunctive relief are credible. Because Talley’s beliefs that the supposed actions
taken against him have unconstitutional motivations are fully unsupported, the Court
cannot find that Talley has a likelihood of success on the merits. Graham v. Medical
Mutual of Ohio, 130 F.3d 293, 294 (7th Cir. 1997).
Even if the Court were to find Talley’s new allegations credible, his motion for a
preliminary injunction would be denied because there is not a reasonable likelihood of
success on the merits. Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 830 (7th Cir.
2014). First, this action arises out of incidents alleged to have occurred at Menard. To the
extent Talley is now asserting new claims against individuals at Pinckneyville and/or
Western, those claims do not belong in this lawsuit. Most importantly, however, Talley
cannot succeed on the merits because, as explained above, he simply does not have the
right to be transferred to a facility of his choosing. See Meachum v. Fano, 427 U.S. 215, 225
(1976); See also Williams v. McGinnis, 755 F. Supp. 230, 231 (N.D. Ill. 1991).
Further, it is once again likely that Talley’s motion for a preliminary injunction in
the form of a transfer out of Pinckneyville is moot. “If a prisoner is transferred to another
prison, his request for injunctive relief against officials of the first prison is moot unless
‘he can demonstrate that he is likely to be retransferred.’” Higgason, 83 F.3d at 811 (citing
Moore, 862 F.2d at 150).“Allegations of a likely retransfer may not be based on mere
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speculation.” Higgason, 83 F.3d at 811 (citing Preiser, 422 U.S. at 403). Talley provides this
Court with no evidence that there is a possibility that he would be transferred back to
Pinckneyville.
CONCLUSION
Accordingly, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 30), REJECTS as moot the earlier filed Report and
Recommendation (Doc. 27), and DENIES all pending motions for temporary restraining
order and/or preliminary injunction (Docs. 6, 10, 29, 38, and 55).
IT IS SO ORDERED.
DATED: May 6, 2016
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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