Smith v. Butler et al

Filing 70

ORDER: For the reasons stated in the attached memorandum and order, the Court ADOPTS the magistrate judge's report and recommendation (Doc. 37 ), OVERRULES Smith's objections to it (Doc. 40 ), and DENIES Smith's motion for a preliminary injunction (Doc. 4 ). Signed by Chief Judge Michael J. Reagan on 9/27/2016. (wtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH SMITH,
Plaintiff,
vs.
KIMBERLY BUTLER,
COUNSELOR WOODS,
SHERRY BENTON,
GLADYS TAYLOR,
JOHN BALDWIN, and
JEANNETTE COWAN,
Defendants.

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Case No. 15-cv-1277-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Kenneth Smith is currently incarcerated at the Pontiac Correctional
Center in Pontiac, Illinois, but was previously incarcerated at the Menard Correctional
Center in Chester, Illinois. On November 16, 2015, he filed suit against a number of
Illinois prison officials, claiming that they violated his Eighth Amendment rights by
denying his requests to be placed in protective custody at Menard. Smith says that he is
a member of the Gangster Disciples under the Six Point Star Flag, and that he has a
history of altercations with prisoners at Menard who are members of the Vice Lords
and the Mickey Cobras, two rival gangs. He got into a fight with one member of the
Mickey Cobras, Paul Calhoun, in 2012, and an affiliate of Calhoun’s named Kevin Smith
made threats against him in late 2014. In mid-2015, he says he received more threats
from members of the Mickey Cobras and from Paul Manning, his former cellmate, so

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Smith checked himself into protective custody. Prison officials investigated and told
Smith that they couldn’t corroborate his threats, so he was removed from protective
custody (over his objections) in August 2015.

After that removal, Smith says he

received two more written gang-related threats, and in light of prison officials’ previous
failure to allow him to stay in protective custody, he opted to file suit in this Court. His
complaint accused Menard officials of being deliberately indifferent to the threats
against him, and he sought, among other things, a preliminary injunction from the
Court directing Menard officials to place him into protective custody.
Smith’s underlying suit continues, but his initial request for a preliminary
injunction was referred to Magistrate Judge Williams for an evidentiary hearing and a
report and recommendation. By the time Judge Williams held the evidentiary hearing
in December 2015, Smith had checked himself back into protective custody due to the
written threats against him, and prison officials had again reviewed (and denied) his
request for long-term protective custody. At the evidentiary hearing, Judge Williams
heard testimony from Defendant Jeanette Cowan, a correctional case work supervisor at
Menard who was involved in the June and August 2015 denials of protective custody,
and from Intelligence Officer Andrew Dillingham, who was involved in the August
2015 denial of protective custody. Smith also testified as well. Based on all of the
testimony presented, Judge Williams was of the view that Smith had not demonstrated
that he was at serious risk of harm or that he was likely to succeed on the merits of his
deliberate indifference claim, so he recommended to the undersigned that Smith’s

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motion for injunctive relief be denied. Smith has objected, and the propriety of Judge
Williams’ report and recommendation is now before the Court for review
The Court has conducted an independent review of Smith’s motion, the evidence
presented, the parties’ arguments, and Smith’s objections, and is of the view that Judge
Williams was right to recommend that Smith’s initial request for a preliminary
injunction be denied.

Smith should know that a preliminary injunction is “an

extraordinary and drastic remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S.
968, 972 (1997). To obtain an injunction, Smith must show that he is likely to succeed on
the merits of this case, that he is likely to suffer irreparable harm without the injunction,
that the harm he would suffer without a preliminary injunction is greater than the harm
the injunction would inflict on the defendants, and that the injunction is in the public
interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010). The “considerations are
interdependent: the greater the likelihood of success on the merits, the less net harm the
injunction must prevent in order for preliminary relief to be warranted.” Id. at 546.
There are a number of reasons why Smith’s initial request for a preliminary
injunction must be denied. For one, Smith hasn’t demonstrated that he is likely to
succeed on the merits of his Eighth Amendment claim, for the testimony at the hearing
doesn’t reflect deliberate indifference on the part of any of the defendants.

As it

concerns the prison’s initial denial of protective custody in mid-2015, the testimony
shows that Cowan interviewed Smith to determine whether he should remain in
protective custody and found that he wasn’t subject to the kind of risk that necessitated
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long-term protection. She confirmed that Smith had a history of altercations with
Calhoun, but determined that Calhoun didn’t pose an ongoing threat because he was
on Smith’s keep separate list and was always housed in another unit. As for the other
threats, Cowan couldn’t locate any prisoner named Kevin Smith at Menard who fit
Smith’s description, nor could she verify that Paul Manning and Smith ever had an
altercation. An intelligence officer at the prison concurred with Cowan’s assessment,
and supervisory staff at Menard and the Administrative Review Board determined that
no protective custody was needed to safeguard Smith. The evidence at the hearing
doesn’t show that Cowan or anyone else knew of a credible threat yet failed to take
action, meaning there’s little to suggest indifference concerning the mid-2015 event.
The same holds true for Smith’s late-2015 request for protective custody. Cowan
and Dillingham interviewed Smith concerning the written threats against him, but
Smith largely refused to cooperate given his history with Cowan, so neither staff
member could corroborate the threats against him.

Given the lack of evidence,

everyone all the way up to the Administrative Review Board found that protective
custody wasn’t required. Nothing offered by Smith at the hearing suggested that the
individuals involved in the late-2015 request ignored a credible threat, and without that
kind of evidence, Smith again bears little chance of success on his underlying claim.
For similar reasons, Smith hasn’t demonstrated that he would suffer irreparable
injury if an injunction isn’t granted, as he hasn’t established that he is at risk of severe
harm. Inmate Calhoun doesn’t pose an imminent risk, as he is listed on Smith’s keep
separate list and is housed separately from him. Smith hasn’t proven that inmates
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Manning and Kevin Smith pose a serious risk, either, as Smith didn’t testify at the
hearing that he and Manning were ever in an altercation, and prison records reflect that
the Kevin Smith threat was a fiction, as there’s no inmate with that name that matches
Smith’s description at Menard.

As to the two written threats that Smith says he

received after leaving protective custody in mid-2015, Smith refused to offer anything to
prison officials to corroborate those threats, he didn’t offer much in the way of
testimony on them at the hearing, and there was some testimony in the record to reflect
that they weren’t a true source of harm anyway, as they were likely drafted by Smith
himself. Smith had an opportunity to prove up irreparable harm at the hearing, and the
evidence that he offered didn’t establish that he was at true risk of injury.
Over and above a lack of irreparable harm and a lack of success on the merits,
there’s another reason to deny Smith’s request for an injunction, namely that his request
is now moot. His motion for a preliminary injunction asks for protective custody at
Menard while he awaits transfer to Pontiac Correctional Center, but Smith was
transferred to Pontiac on or around August 2016, and that transfer vitiates any need for
early injunctive relief. Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996).
Because Smith hasn’t met his burden to justify a preliminary injunction, and
because his initial request is now moot, the Court ADOPTS the magistrate judge’s
report and recommendation (Doc. 37), OVERRULES Smith’s objections to it (Doc. 40),
and DENIES Smith’s motion for a preliminary injunction (Doc. 4).

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IT IS SO ORDERED.
DATED: September 27, 2016
/s/ Michael J. Reagan
Chief Judge Michael J. Reagan
United States District Court

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