Booker v. McCarty et al

Filing 45

ORDER ADOPTING Report and Recommendation (Doc. 39 ). Plaintiff's Motion for Preliminary Injunction (Doc. 4 ) is DENIED. Defendants' Motion to Revoke Plaintiff's IFP Status (Doc. 27 ) is DENIED. Signed by Judge Staci M. Yandle on 9/1/2016. (mah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIE BOOKER,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
LESLIE MCCARTY et al.,
Defendants.

Case No. 16-CV-194-SMY-PMF

MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Philip M. Frazier (Doc. 39). Judge Frazier recommends that the undersigned
deny Plaintiff’s Motion for Preliminary Injunction (Doc. 4) and deny Defendant’s Motion to
Revoke Plaintiff’s pauperis status (Doc. 27).

Plaintiff filed a timely objection (Doc. 43).

Defendants have not objected. 1 For the following reasons, the Court adopts Judge Frazier’s
Report and Recommendation in its entirety.
Background
Plaintiff Willie Booker, an inmate currently incarcerated at Menard Correctional Center
(“Menard”), filed this lawsuit alleging deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. Plaintiff alleges Defendants violated his Eighth Amendment rights when they
failed to place him in protective custody at Menard after he received gang-related threats from
other inmates at the prison.

1

Where no timely objections to the Report and Recommendation are made, this 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 error. Johnson v. Zema Systems
Corp., 170 F.3d 734, 739 (7th Cir. 1999). The Court fully agrees with Judge Frazier’s findings that there
are insufficient reasons and facts to revoke Plaintiff’s pauperis status. Accordingly, Defendants’ motion
to revoke Plaintiff’s pauperis status is denied.

1

Plaintiff is a convicted sex offender and a former member of the Gangster Disciples
prison gang. Plaintiff currently resides in cell 812 in the North Cell House at Menard with
another inmate who has not been hostile towards him. However, Plaintiff alleges that he has
received numerous threats that he will be killed if he returns to the general population housing
unit. On October 20, 2015, Plaintiff had an altercation with another inmate during a meal.
Plaintiff was not injured during the incident. Other than the alleged threats and the isolated
incident, there have been no incidents of inmates attempting to harm Plaintiff. Following an
evidentiary hearing on Plaintiff’s motion, Judge Frazier issued his Report and Recommendation.
The Report and Recommendation sets forth the nature of the evidence presented by both
sides as well as the applicable law. Judge Frazier concluded that Plaintiff failed to establish the
elements required to obtain a preliminary injunction (Doc. 39). Specifically, Judge Frazier found
that Plaintiff’s likelihood of success on the merits of his Eighth Amendment claim is low
because he cannot show that the defendants acted with deliberate indifference to his serious
needs.
Discussion
The undersigned must undertake a de novo review of the Judge Frazier’s
recommendation to deny Plaintiff’s motion for preliminary injunction because a timely objection
was filed. 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 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

2

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.
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). The purpose of such an injunction is to minimize the
hardship to the parties pending the ultimate resolution of the lawsuit.” Fahenm-El v. Klincar,
841 F.2d 712, 717 (7th Cir. 1988). In order to obtain a preliminary injunction, Plaintiff has the
burden of establishing that: (1) he is likely to succeed on the merits of his claim; (2) he has no
adequate remedy at law; and (3) he is likely to suffer irreparable harm without the injunction.
Planned Parenthood of Indiana, Inc. v. Comm’r of Indiana State Dep’t Health, 699 F.3d 962,
972 (7th Cir. 2012), citing Am. Civil Liberties Unions of Ill. v. Alvarez, 679 F.3d 583, 589-90
(7th Cir. 2012).
In the context of prisoner litigation, the scope of the Court’s authority to enter an
injunction is circumscribed by the Prison Litigation Reform Act (“PLRA”). Westefer v. Neal,
682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary injunction relief “must be
narrowly drawn, extend no further than necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. §
3626(a)(2); see also Westefer, 682 F.3d at 683 (noting the PLRA “enforces a point repeatedly
made by the Supreme Court in cases challenging prison conditions: prisons officials have broad
administrative and discretionary authority over the institutions they manage”) (internal quotation
marks and citation omitted).
Plaintiff generally objects to Judge Frazier’s finding that he is not in imminent danger
and asserts that he is seeking to mitigate his damages from a threatened attack by requesting

3

prospective injunctive relief in the form of protective custody status based on the alleged threats
he has received from other inmates. Plaintiff further asserts that if a preliminary injunction is not
granted, he will likely be harmed at some point by other inmates.
The Court is mindful of Plaintiff’s concerns. However, there is no evidence that Plaintiff
will suffer irreparable harm if the injunction is not granted. Plaintiff has been in the general
population since December 2015 and has not suffered any physical harm by another inmate
during that timeframe. Additionally, Plaintiff is currently being housed in a protective custody
unit pending a decision of by the ARB. Again, a preliminary injunction is an “extraordinary and
drastic remedy” requiring the movant to demonstrate its justification by a clear showing.
Mazurek, 520 U.S. at 972. After thoroughly reviewing the record before it, the Court agrees with
Judge Frazier’s analysis and conclusions.
Conclusion
For the reasons set forth above, the Court ADOPTS Judge Frazier’s Report and
Recommendation (Doc. 39). Plaintiff’s Motion for Preliminary Injunction and Defendants’
motion to revoke Plaintiff’s pauperis status are DENIED.
IT IS SO ORDERED.
DATED: September 1, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

4