Talley v. Lee et al

Filing 91

ORDER: 80 Defendants' objections are SUSTAINED, 79 Report and Recommendations is respectfully REJECTED, and 45 Motion to Dismiss is GRANTED IN PART to the extent that it requests revoking Talley's IFP status. Talley's IFP status is hereby REVOKED, and he is ORDERED to pay the remaining balance of his filing fee -- $391.86 -- on or before October 20, 2016. If Talley fails to comply with this Order in the time allotted by the Court, this action will be dismissed. Signed by Judge Nancy J. Rosenstengel on 9/21/16. (klh2)

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.
)

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

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of Magistrate
Judge Donald G. Wilkerson entered on June 17, 2016 (Doc. 79), which recommends
denial of Defendants’ motion to dismiss (Doc. 45). Defendants filed a timely objection to
the Report and Recommendation on July 1, 2016 (Doc. 80).
Because timely objections were filed, the undersigned 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). De novo review requires
the district judge to “give fresh consideration to those issues to which specific objections
have been made” and make a decision “based on an independent review of the evidence
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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.
For the reasons stated below, the Court sustains Defendants’ objection and
respectfully rejects the Report and Recommendation.
BACKGROUND
Plaintiff Durwyn Talley, an inmate in the Illinois Department of Corrections, filed
this pro se lawsuit on September 21, 2015 (Doc. 1). After conducting a threshold review of
the complaint under 28 U.S.C. 1915A, the Court permitted Talley to proceed on one
claim of retaliation in violation of the First Amendment (Doc. 5). In particular, Talley
claimed that other inmates and prison officials at Menard Correctional Center had been
threatening to beat and kill him from May 2015 up to the time he filed this case (Doc. 5,
Doc. 1). Talley further alleged that his complaints about the threats were ignored and his
requests for protective custody were denied (Doc. 5, Doc. 1). According to Talley, this
was all happening because officials at Menard had grown tired of the many grievances
and lawsuits he had filed (Doc. 5, Doc. 1).
At the same time Talley filed his complaint, he filed a motion to proceed in forma
pauperis (“IFP”) (Doc. 2). Because Talley had recently “struck out” for previously filing
three frivolous lawsuits in federal court, he could not proceed IFP unless he was in
imminent danger of serious physical injury (Doc. 5). 28 U.S.C. § 1915(g). The Court

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found that the imminent danger standard was satisfied based on Talley’s allegations
regarding the threats he received and the inaction of prison officials, and he was
permitted to proceed IFP (Doc. 5). Those same allegations were also construed by the
Court as a request for a preliminary injunction (Doc. 5). Talley then followed up by
submitting a number of formal motions to that effect (Docs. 6, 10, 29).
Magistrate Judge Wilkerson held a hearing on October 2, 2015—eleven days after
Talley filed his complaint—on the issue of a preliminary injunction. Talley testified at
the hearing, and the crux of his testimony was that the threats he received prior to filing
the lawsuit had continued. Following the hearing, Magistrate Judge Wilkerson issued a
Report and Recommendation recommending the denial of Talley’s requests for
preliminary injunctive relief (Doc. 30). Magistrate Judge Wilkerson stated in pertinent
part that “Plaintiff was not credible in his assertions that he is being threatened by
inmates and correctional officers because of his First Amendment activities” (Doc. 30, p.
5). Specifically, Magistrate Judge Wilkerson stated that Talley was “prone to
exaggeration,” and he “attributes constitutional motivations to actions that have
legitimate purposes, simply because he believes that there is a vast conspiracy to cause
him harm” (Doc. 30, pp. 3, 6–7). Magistrate Judge Wilkerson further stated that Talley’s
belief “ha[d] no basis in fact” and was instead based on “rank conjecture and speculation
as to the motivations of personnel at the prison and the actions of other inmates” (Doc.
30, pp. 6, 7). For these reasons, Magistrate Judge Wilkerson concluded that there was “no
reasonable likelihood that Plaintiff [would] prevail on the merits of this case,” and he

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recommended denying all of Talley’s requests for preliminary injunctive relief (Doc. 30,
p. 6).
This Court adopted the Report and Recommendation, including Magistrate Judge
Wilkerson’s credibility findings, and concluded that Talley was not being threatened or
in danger of physical harm as he alleged in his complaint (Doc. 65, p. 4). More
specifically, the undersigned concluded that Talley “exaggerat[ed] his circumstances”
and “what Talley labels as a threat was [actually] a warning from fellow inmates about
the repercussions Talley might face if he continues to file lawsuits, rather than a threat of
actual harm” (Doc. 65, pp. 4, 5).
Before the Court ruled on the Report and Recommendation, however, Defendants
filed a motion to dismiss Talley’s complaint based on Magistrate Judge Wilkerson’s
findings and conclusions (Docs. 45, 46). In short, Defendants argue that if Talley’s
allegations of danger were not credible and therefore insufficient to warrant the
imposition of a preliminary injunction, then those allegations are also insufficient to
establish that he was in imminent danger at the time he filed his complaint, and he
should not have been permitted to proceed IFP.
On June 8, 2016, Magistrate Judge Wilkerson held another hearing, this time on
the motion to dismiss (Doc. 76). See Taylor v. Watkins, 623 F.3d 483, 486 (7th Cir. 2010)
(holding that “that when a defendant contests a plaintiff’s claims of imminent danger, a
court must act to resolve the conflict.”). Once again Talley testified about the purported
threats he received at Menard prior to filing this lawsuit and prison officials’ inaction.
Following

the

hearing,

Magistrate

Judge

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Wilkerson

issued

a

Report

and

Recommendation, recommending that the motion to dismiss be denied (Doc. 79).
Defendants filed an objection (see Doc. 80); Talley did not file any objections of his own
or a response to Defendants’ objections.
THE REPORT AND RECOMMENDATION AND DEFENDANTS’ OBJECTIONS
In the Report and Recommendation, Magistrate Judge Wilkerson detailed Talley’s
testimony regarding the threats he claimed to have faced at Menard (Doc. 79, p. 3). Then,
citing to Taylor, Magistrate Judge Wilkerson noted that Defendants “failed to present
any evidence, let alone ‘incontrovertible proof’ that Talley’s allegations of imminent
danger of serious physical injury were implausible or false” (Doc. 79, p. 4). He further
noted that:
There was nothing in Plaintiff’s testimony or in the evidence presented
that would call into question Plaintiff’s credibility or the Court’s initial
finding [of imminent danger]. Defendants have pointed out no major or
glaring inconsistencies between Plaintiff’s testimony and his allegations.
And, Defendants presented no evidence or argument that would refute
Plaintiff’s version of events.
(Doc. 79, p. 5). Consequently, Magistrate Judge Wilkerson recommended denying the
motion to dismiss (Doc. 79).
Defendants objected to the Report and Recommendation, setting forth three main
arguments: (1) Talley was not in imminent danger at the time he filed his complaint
because the event that allegedly placed him in imminent danger—the denial of
protective custody in May 2015—occurred four months prior to him filing suit;
(2) Magistrate Judge Wilkerson incorrectly placed on Defendants the burden to provide
incontrovertible proof that Talley was not in imminent danger at the time he filed the

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complaint; and (3) Talley was not in imminent danger at the time he filed his complaint
because he could have removed himself from any alleged, perceived danger (Doc. 80).
ANALYSIS
As an initial matter, the Court notes that Defendants’ motion to dismiss is
construed as a request to revoke Talley’s IFP status. The Court believes that if Talley’s
allegations of imminent danger are not credible, the proper response is not to
immediately throw the case out of court. Instead, the proper response is to revoke his
IFP status, give him a chance to pay the full filing fee, and dismiss the case if he fails to
do so.
Turning next to Defendants’ objections, the Court concludes that it need not
address each objection because it finds that the second objection provides a sound basis
for rejecting the Report and Recommendation and revoking Talley’s IFP status. In the
second objection, Defendants first argue that they were not required to produce
incontrovertible proof to disprove Talley’s claims of imminent danger as implied by
Magistrate Judge Wilkerson (Doc. 80). To the extent that Magistrate Judge Wilkerson
suggested that Taylor imposed this requirement, the Court disagrees.
In Taylor, the defendants challenged the plaintiff’s allegations of imminent
danger, and following an evidentiary hearing, the district court concluded that the
allegations were not supported by the evidence and denied the plaintiff’s request to
proceed IFP. Taylor v. Watkins, 623 F.3d 483, 484 (7th Cir. 2010). When the plaintiff failed
to pay the necessary filing fee, the case was dismissed. Id. The plaintiff appealed, arguing
that the district court was not permitted to hold an evidentiary hearing on his motion to

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proceed IFP. Id. at 485. The Seventh Circuit disagreed, stating that when a defendant
contests a plaintiff’s allegations of imminent danger, a court must act to resolve the
conflict by evaluating the credibility of the allegations. Id. at 485, 486. “A contrary
conclusion would mean that a three-strikes plaintiff could proceed IFP whenever his
allegations of imminent danger were facially plausible, even if the defendant had
incontrovertible proof that rebutted those allegations. Such a rule would allow easy
evasion of the three-strikes rule.” Id. at 485–86.
Nothing about this language suggests a defendant is required to provide any
evidence, much less incontrovertible evidence, in order to show that a plaintiff’s
allegations of imminent danger are implausible or false. An offer of evidence is certainly
an option for challenging a plaintiff’s assertion that he was in imminent danger. See
Taylor, 623 F.3d at 485 (citing Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (noting that a
court can evaluate a plaintiff’s credibility “by relying on affidavits or depositions”)).
Another way is to simply ask questions that probe into the veracity of the plaintiff’s
allegations in order to determine if they are based in fact or “conclusory or ridiculous.”
Taylor, 623 F.3d at 485.
The latter is, of course, what happened during the first evidentiary hearing on
October 2, 2015. Magistrate Judge Wilkerson and defense counsel questioned Plaintiff
about the basis for his belief that he was being threatened with physical harm and death
and denied protective custody in retaliation for filing grievances and lawsuits. And
Magistrate Judge Wilkerson found that Plaintiff’s allegations were not credible and
therefore did not warrant preliminary injunctive relief. See supra p. 3. Defendants argue

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that this finding also means that Plaintiff’s allegations did not warrant granting him IFP
status under the imminent danger exception to 28 U.S.C. § 1915(g) (Doc. 46). The Court
agrees.
In his complaint, Talley alleged that other inmates and correctional officers were
threatening to beat and kill him and that his requests for protective custody were
ignored or denied (Doc. 1, Doc. 5). The Court determined that, based on these
allegations, it was facially plausible that Talley was facing a real and proximate threat of
serious physical injury, and Talley was consequently permitted to proceed under the
“imminent danger” exception to 28 U.S.C. § 1915(g) (Doc. 5). In turn, because it was
facially plausible that Talley was imminent danger, the Court also construed his
complaint as including a request for preliminary injunctive relief (see Doc. 5). Thus it is
clear that Talley’s motion to proceed IFP and his request for a preliminary injunction
were initially supported by the exact same allegations and therefore inseparably linked. 1
That link was not broken when Talley expanded the allegations pertaining to his
request for a preliminary injunction. Talley simply testified that the individuals who
threatened him before he filed this lawsuit continued to do so during the eleven days
that elapsed between the filing of his complaint and the preliminary injunction hearing.
See Taylor v. Watkins, 623 F.3d 483, 486 (7th Cir. 2010) (“[I]n many cases . . . the allegations of imminent
danger are linked to the allegations underlying the suit.”); Ammons v. Hannula, No. 08-CV-608-BBC, 2009
WL 799670, at *3 (W.D. Wis. Mar. 24, 2009) (“Because prisoners who are allowed to proceed under the
imminent danger exception allege that they face a pressing physical health emergency, it is this court’s
policy to construe their complaints as including a motion for preliminary injunctive relief, so that their
claims of imminent danger can be determined as quickly as possible.”). Compare Ciarpaglini v. Saini, 352
F.3d 328, 330 (7th Cir. 2003) (“In order to meet the imminent danger requirement of 28 U.S.C. § 1915(g),
the threat or prison condition [must be] real and proximate. . . . the harm must be imminent or occurring at
the time the complaint is filed.”) (citations and internal quotation marks omitted), with Hummel v. St. Joseph
Cty. Bd. of Comm’rs, 817 F.3d 1010, 1016 (7th Cir. 2016) (“[W]hen a federal court addresses a claim for
injunctive relief, it must take care to determine whether plaintiffs have offered evidence of a ‘real and
immediate’. . . threat of a future violation of their rights.”).
1

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In other words, both the old and the new allegations involved the same conduct from the
same inmates and officers (compare Doc. 30 with Doc. 79). Consequently, reason dictates
that because Talley’s allegations of real and proximate physical injury were deemed not
credible and insufficient to warrant preliminary injunctive relief, those allegations are
likewise not credible and insufficient to allow Talley to proceed IFP under the imminent
danger exception. 2
CONCLUSION
Based on the above analysis, the Court concludes that Talley was not in imminent
danger at the time he filed his complaint. Defendants’ objections (Doc. 80) are
SUSTAINED, Magistrate Judge Wilkerson’s Report and Recommendation (Doc. 79) is
respectfully REJECTED, and Defendants’ Motion to Dismiss (Doc. 45) is GRANTED in
part to the extent that it requests revoking Talley’s IFP status.
Talley’s IFP status is REVOKED, and he is ORDERED to pay the remaining
balance of his filing fee—$391.86—on or before October 20, 2016. 3 If Talley fails to
comply with this Order in the time allotted by the Court, this action will be dismissed.
See Almond v. Pollard, 443 F. App’x 198 (7th Cir. 2011) (holding state prisoner failed to show his untreated
back pain was causing life-threatening harm, as would establish imminent danger required to avoid the
three-strikes bar, where these allegations were inseparably linked to lawsuit that prisoner had previously
lost on the merits, in which the court had concluded that abundance of evidence refuted prisoner's claim
that his back pain was being ignored); Allen v. Lang, No. 14-CV-0098-MJR-SCW, 2014 WL 7452173, at *1
(S.D. Ill. Dec. 31, 2014) (sua sponte revoking plaintiff’s IFP status under imminent danger exception to
three-strikes rule after plaintiff’s request for preliminary injunction was denied); Dye v. Grisdale, No.
11-CV-443-BBC, 2012 WL 6055021, at *2 (W.D. Wis. Dec. 6, 2012) (granting motion to revoke plaintiff’s in
forma pauperis status “because it is clear from the facts adduced in the preliminary injunction and summary
judgment proceedings that plaintiff was not in imminent danger of serious physical harm at the time he
filed his complaint in this action.”); Ammons v. Hannula, No. 08-CV-608-BBC, 2009 WL 799670, at *3 (W.D.
Wis. Mar. 24, 2009) (explaining why it “makes sense” that the “denial of plaintiff's request for preliminary
injunctive relief [is] tantamount to a finding that there is no ‘imminent danger’ of harm [under 28 U.S.C.
§ 1915(g)]”).
3 Talley was assessed an initial partial filing fee of $8.14, which was received on November 24, 2015.
Because this is the only payment the Court has received from Talley, and litigants who are not granted
leave to proceed IFP are required the pay a $400 filing fee, his outstanding balance to the Court is $391.86.
28 U.S.C. § 1914(a).
2

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See FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir. 1997); Johnson
v. Kamminga, 34 F.3d 466, 468 (7th Cir. 1994).
IT IS SO ORDERED.
DATED: September 21, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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