Hardy v. Rauner et al
ORDER ADOPTING 50 REPORT AND RECOMMENDATIONS and DENYING 2 , 6 , 29 MOTIONS for injunctive relief. Signed by Judge Nancy J. Rosenstengel on 9/21/2018. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRUCE RAUNER, JOHN BALDWIN,
KIMBERLY BUTLER, and
Case No. 17-CV-1354-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on a Report and Recommendation entered
by United States Magistrate Judge Donald G. Wilkerson on August 29, 2018 (Doc. 50)
regarding Plaintiff Nedrick Hardy’s three motions for injunctive relief (Docs. 2, 6, 29).
In the first motion, which was filed on December 14, 2017, Hardy stated that he was
at risk of harm by being double-celled (Doc. 2). Magistrate Judge Wilkerson recommended
denying this motion because “Plaintiff makes no statement that he would suffer any harm,
let alone irreparable harm, that would require resolution prior to the conclusion of this
matter on the merits” (Doc. 50, p. 4). Hardy did not file any objections to this
recommendation (see Doc. 58). The undersigned has reviewed the Report and
Recommendation and agrees with, and accordingly adopts, the findings of fact and
conclusions of law pertaining to Hardy’s first motion for injunctive relief. That motion is
In the second motion for injunctive relief, which was filed on January 9, 2018, Hardy
stated that he was at risk of harm due to the extreme cold temperatures in his cell house
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during the winter months (Doc. 6). He stated that there was no heat or hot water, and he had
no access to blankets or a coat (Doc. 6). He claimed these “extreme cold conditions” resulted
in a “really bad cold that caused him to cough up dark green phlemh [sic] with blood in it”
(Doc. 6). In the Report and Recommendation issued on August 29, 2018, Magistrate Judge
Wilkerson noted that “[i]t is, of course, summer now and temperatures have been at least
above freezing for a number of months” (Doc. 50, p. 2). Therefore he recommended denying
Hardy’s motion because it was “no longer urgent such that equitable relief should be
granted” (Doc. 50, p. 4).
Hardy objects to this recommendation, arguing that the only reason his motion is no
longer urgent is because Magistrate Judge Wilkerson waited eight months to address it
(Doc. 58). Hardy further argues that winter will be here again in a few short months and he
will be subjected to the same extremely cold temperatures inside Menard (Doc. 58).
Hardy’s objections are overruled. While the delay in addressing his motion is
regrettable, there was good reason for it. The undersigned determined that a temporary
restraining order should not issue with respect to Hardy’s allegations about the cold
temperatures because they were unsupported by admissible evidence given that his
complaint was unsworn and he did not include an affidavit with his motion (Doc. 8).
Furthermore, Hardy had not yet paid the filing fee or moved to proceed in forma pauperis
(Doc. 8). Hardy’s request for a preliminary injunction remained pending, however, and he
was advised that it would be addressed in due course (Doc. 8). That meant waiting for
Defendants to be served and to file a response to his motion, which didn’t occur until June
22, 2018 (Doc. 31). At that point, winter had passed, and there was no harm in Magistrate
Judge Wilkerson waiting another two months to issue his Report and Recommendation.
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Ordering preliminary injunctive relief right now would be premature because it is
impossible to say whether Hardy will still be housed at Menard come winter. And even if he
is, it is uncertain what cell house and cell he will be assigned to, whether cold temperatures
will be an issue in his cell, and whether he will have access to blankets, a coat, or other
alternative measures to protect himself from the cold. Accordingly, the undersigned adopts
the Report and Recommendation (Doc. 50) pertaining to Hardy’s second motion for
injunctive relief (Doc. 6) and denies that motion. 1
In his third motion for injunctive relief, which was filed on June 14, 2018, Hardy seeks
an order directing prison officials to allow him to have “contact” visits with his lawyer and
for those visits to be confidential (Doc. 29). Magistrate Judge Wilkerson recommended
denying this motion because the relief sought is wholly unrelated to the underlying claims
in this lawsuit (Doc. 50). More specifically, there is no claim for denial of access to the courts,
and Hardy is not represented by counsel in this matter; therefore, his inability to
communicate effectively with a lawyer cannot be related to this case (Doc. 50). Hardy
objected, stating that he has requested leave to file an amended complaint “to fix deficiencies
in . . . his claim for access to his lawyer” (Doc. 58, p. 7). 2 Hardy argues that Magistrate Judge
Wilkerson should have determined if Hardy’s amended claim survived screening under
28 U.S.C. § 1915A before evaluating whether injunctive relief related to that claim was
In the event Hardy is indeed subjected to frigid indoor temperatures at Menard this winter, he can renew his
motion for a TRO/preliminary injunction. To ensure his motion receives prompt attention, Hardy should
submit a sworn affidavit with his motion, and that affidavit should be as specific and detailed as possible. For
example, Hardy should address the severity of the cold temperatures; the duration of the cold temperatures
(that is, did the temperatures last for days, weeks, months, etc.?); the availability of alternative means to protect
himself from the cold (meaning what clothing and bedding did he have, was anything extra issued, etc.?); and
the adequacy of such alternatives. Dixon v. Godinez, 114 F.3d 640, 644 (7th Cir. 1997)
Hardy’s original complaint appeared to include a claim for denial of access to the courts, but it was dismissed
on threshold review for failure to state a claim upon which relief could be granted (Doc. 16).
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This objection is overruled. While Hardy attempted to include a claim for denial of
access to the courts in his original complaint, that claim was dismissed on threshold review
for failure to state a claim upon which relief could be granted (Doc. 16). Hardy apparently
would like to revive this claim in his amended complaint, but his proposed amendment has
not yet been evaluated by Magistrate Judge Wilkerson. As it currently stands, Hardy is not
proceeding on a claim for denial of access to courts, and consequently, the alleged inability
to communicate effectively with a lawyer is an issue wholly outside the claims currently
pending in this action, which pertain only to Hardy’s conditions of confinement (see
Doc. 16). 3 The undersigned adopts the Report and Recommendation (Doc. 50) regarding
Hardy’s third motion for injunctive relief (Doc. 29) and denies that motion.
Magistrate Judge Donald G. Wilkerson’s Report and Recommendation (Doc. 50) is
ADOPTED in its entirety. Plaintiff Nedrick Hardy’s motions for injunctive relief (Docs. 2, 6,
29) are DENIED.
IT IS SO ORDERED.
DATED: September 21, 2018
NANCY J. ROSENSTENGEL
United States District Judge
In the event Hardy is allowed to proceed on his amended claim for denial of access to the courts, he can then
file another motion seeking injunctive relief related to that claim.
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