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Case No. 17-cv-211-DRH-SCW (S.D. Ill. Aug. 17, 2018)

Case No. 17-cv-211-DRH-SCW





Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Ronnie Gully, Jr., currently incarcerated at Pinckneyville Correctional Center, filed his complaint for retaliation and harassment in violation of the First and Eighth Amendments, respectively, against Defendants Thomas Houser and Derek Hundley. Defendant Nicholas Lamb, Warden of Lawrence Correctional Center, was added as a defendant for the sole purpose of carrying out any injunctive relief that is ordered during the course of Plaintiff's action. (Doc. 7, p. 21). The allegations which make up Plaintiff's claims in this case took place while Plaintiff was housed at Lawrence Correctional Center.

This matter is before the Court on a motion for preliminary injunction (Doc. 23) filed by Plaintiff. Plaintiff's motion seeks a transfer from Lawrence Correctional Center so that he is away from Defendants Houser and Hundley in this case. Defendants have filed a response (Doc. 32) in opposition to Plaintiff's motion. Based on the following, the undersigned RECOMMENDS the Court DENY AS MOOT Plaintiff's motion for preliminary injunction.


As narrowed by the Court's threshold order, (See Doc. 7), Plaintiff's complaint alleges that he was verbally threatened, harassed, and retaliated against by Defendants Houser and Hundley. (Id. at pp. 8-12). According to Plaintiff, in July 2016 Defendant Houser made inappropriate sexual comments while escorting Plaintiff to the restroom, including encouraging Plaintiff to masturbate in front of him. (Id. at p. 3). Defendant Houser performed a strip search of Plaintiff following this restroom visit before returning Plaintiff to a scheduled visitation period. (Id.).

Plaintiff subsequently filed a grievance about Defendant Houser's conduct, after which Defendant Houser allegedly approached Plaintiff and made threatening comments to Plaintiff regarding the grievances. (Id. at pp. 3-4). In the weeks and months that followed, Plaintiff had several "run-ins" with Defendant Houser, including allegations that Defendant Houser stalked or followed Plaintiff, conducted harassing pat downs of Plaintiff in his cell, and made other overt threats toward him. (Id. at p. 5).

Shortly following his run-ins with Defendant Houser, Plaintiff alleges that Defendant Hundley approached him, saying that Plaintiff had opened a "can of worms" by "fucking with [Defendant Houser]," and warning Plaintiff to "lay off [Defendant Houser] or he'd make [Plaintiff's] life a living hell." (Id.). Plaintiff then alleges that Defendant Hundley fabricated an assault by Plaintiff in order to issue a disciplinary ticket against Plaintiff, which could have resulted in Plaintiff accruing up to three years of additional time in custody, among other penalties. (Id. at pp. 5-6). Plaintiff also alleges that Defendant Hundley confiscated Plaintiff's personal property and did not return it. (Id. at p. 6).

Following his complaint, Plaintiff filed a motion for preliminary injunction (Doc. 23). Plaintiff's motion sought a transfer out of Lawrence Correctional Center in order to ensure that Defendants' Houser and Hundley's threats and verbal harassment did not continue. Defendants have now filed a response (Doc. 32) in opposition to Plaintiff's motion. Defendants note that since the filing of his complaint, Plaintiff is no longer housed at Lawrence, as he was ultimately transferred Pinckneyville Correctional Center. Thus, Defendants argue, Plaintiff is no longer housed at the same location where the Defendants work and his request for transfer is now moot.


Injunctions are extraordinary equitable remedies that are to be granted in civil cases only when specific criteria are clearly met by the movant. Mazurek v. Armstrong , 520 U.S. 968, 972 (1997). The plaintiff must show four elements for an injunction: (1) plaintiff is likely to succeed on the merits; (2) without an injunction irreparable harm against the plaintiff is likely; (3) the harm likely to be suffered by the plaintiff would be greater than the harm the injunction would inflict on defendants; and (4) the injunction is in the public interest. Id. The greater the likelihood that the plaintiff will succeed on the merits of the case, the less significant the likely harm against the plaintiff must be in relation to the harm the defendant will likely suffer due to an injunction. Id. According to the Prison Litigation Reform Act (PLRA) injunctions in the prison context 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.A. § 3626. Courts may issue preliminary injunctions only on notice to the adverse party. Fed. R. Civ. P. 65(a)(1).

In the context of prisoner litigation, there are further restrictions on courts' remedial power. The scope of the court's authority to enter an injunction in the corrections context 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 (the PLRA "enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: prison officials have broad administrative and discretionary authority over the institutions they manage") (internal quotation marks and citation omitted).

The Seventh Circuit has described injunctions like the one sought here, where an injunction would require an affirmative act by the defendant, as a mandatory preliminary injunction. Graham v. Med. Mut. of Ohio , 130 F.3d 293, 295 (7th Cir. 1997). Mandatory injunctions are "cautiously viewed and sparingly issued," since they require the court to command a defendant to take a particular action. Id. (citing Jordan v. Wolke , 593 F.2d 772, 774 (7th Cir. 1978)). See also W.A. Mack , Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) ("A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.").


Plaintiff's motion for preliminary injunction seeks a transfer from Lawrence Correctional Center and away from Defendants Houser and Hundley. However, Plaintiff has already received the relief he requested, as he has since been transferred away from Lawrence to Pinckneyville Correctional Center. (See Doc. 32-1). A prisoner's request for injunctive relief is rendered moot by his transfer to another prison. Higgason v. Farley , 83 F.3d 807, 812 (7th Cir. 1996); Koger v. Bryan , 523 F.3d 789, 804 (7th Cir. 2008). The request is moot unless "he can demonstrate that he is likely to be retransferred." Higgason , 83 F.3d at 812 (citing Moore v. Thieret , 862 F.2d 148, 150 (7th Cir. 1988)). Allegations of a likely retransfer may not be based on mere speculation. Id. Plaintiff is currently housed at Pinckneyville, not Lawrence, and has made no showing that he is likely to be transferred back to Lawrence anytime in the future. Thus, the undersigned RECOMMENDS Plaintiff's request for a preliminary injunction for transfer be DENIED AS MOOT.

The undersigned does note that Plaintiff has requested to "be transferred to another medium security IDOC facility," while stating that he does not wish to be transferred to several specific facilities, including Pinckneyville, because these facilities "contain enemies that are out to get [him]." (Doc. 23, p. 13, ¶ 40). However, Plaintiff has alleged no facts regarding any of the alleged "enemies" at these other facilities, including Pinckneyville. The facts of Plaintiff's Motion for Preliminary Injunction substantively relate only to persons and occurrences that allegedly took place at Lawrence—Plaintiff's conclusory allegation in the final paragraph of his motion cannot be the basis for finding that his transfer to Pinckneyville does not remedy his concerns relating to personnel at Lawrence. Further, Plaintiff does not have a right to be placed in a particular prison. See, e.g., DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) ("[P]risoners possess neither liberty nor property in their classifications and prison assignments. States may move their charges to any prison in the system."). --------


The undersigned RECOMMENDS the Court to DENY AS MOOT Plaintiff's motion for preliminary injunction (Doc. 23).

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See , e.g., Snyder v. Nolen , 380 F.3d 279, 284 (7th Cir. 2004). Accordingly, Objections to this Report and Recommendation must be filed on or before September 4, 2018.


DATED: August 17, 2018

/s/ Stephen C. Williams


United States Magistrate Judge

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