Beard v. Fink

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

DONALD E. BEARD, JR. )

)

Plaintiff, )

v. ) No.: 20-cv-3046-JBM

)

JOSHUE FINK, et al., )

)

Defendants. )

MERIT REVIEW -AMENDED COMPLAINT

Plaintiff, proceeding pro se, and no longer in custody, has filed a motion for leave to

amend his complaint [ECF 17], which is GRANTED. The Court will now undertake a merit

review of the amended complaint pursuant to 28 U.S.C. § 1915A. In reviewing the amended

complaint, the Court accepts the factual allegations as true, liberally construing them in

Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory

statements and labels are insufficient. Enough facts must be provided to “state a claim for relief

that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir.

2013)(citation and internal quotation marks omitted). While the pleading standard does not

require “detailed factual allegations,” it requires “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011)

quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff filed his complaint under 42 U.S.C. § 1983, alleging violations of equal

protection, due process, religious exercise and retaliation. Plaintiff names Defendant Parole

Agent Joshua Fink, Parole Supervisor Matthew Lukow, the Prisoner Review Board (“PRB”); and

Rob Jeffreys, Director of the Illinois Department of Corrections (“IDOC”).

On November 14, 2019, Plaintiff was released from custody, after serving 17 years on a

conviction for aggravated criminal sexual assault. Plaintiff is currently on a term of Mandatory

Supervised Release (“MSR”), also known as parole. On November 16, 2019, Defendant Fink

went to Plaintiff’s residence and advised him as to the conditions of MSR which included no

Internet, cell phones or social media use; no religious activities of any kind; and participation in

mandatory sex offender treatment. Plaintiff complains as to all of these conditions, most notably,

the mandatory treatment. When Plaintiff met with the counselor who was to provide him

treatment, he refused to admit to the charge for which he had been convicted, a requirement for

treatment to continue. With Defendant Fink present, Plaintiff declared that he would not admit to

the charge, as he had been innocent all along. Plaintiff alleges that on December 2, 2019, his

fears of retaliation came true as he was arrested for a parole violation, presumably for

failing to undergo sex offender treatment.

On January 11, 2020, Defendant Fink arrested Plaintiff for another parole violation, not

particularly described. Plaintiff alleges that on both occasions, Defendant Fink purposely “wrote

down the wrong date” for the revocation hearing. Plaintiff served a total of 81 days while being

held on the two parole violations, with the PRB eventually finding that there was no probable

cause for either arrest.

ANALYSIS

Plaintiff has alleged that the MSR terms violate his constitutional rights, including his

First Amendment right to religious exercise. As an initial matter, under Heck v. Humphrey,

Plaintiff cannot litigate the terms of his MSR in a §1983 action.1 Heck provides, “[w]hen a state

prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in

1 Heck v. Humphrey, 512 U.S. 477, 487 (1994).

favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it

would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated.” Heck applies to parole proceedings as “[f]or parolees,

the … ‘conditions’ of parole are the confinement.” Williams v. Wisconsin, 336 F.3d 576, 579

(7th Cir. 2003). See Lacey v. Unknown Parole Agent, No.12-9406, 2012 WL 6217529, at *2

(N.D. Ill. Dec. 12, 2012) (an individual who has been released from prison on MSR is still

considered to be in IDOC custody as “the time during which he can be legally detained does not

expire until the term of MSR expires.”) (internal citation omitted). Here, Plaintiff attempts to

contest the terms of his confinement without asserting that the underlying conviction has been

expunged or otherwise invalidated. He is Heck-barred from so doing.

Plaintiff also asserts a retaliation claim based on Defendant Fink arresting him for two

alleged parole violations, and purposefully writing down the wrong dates for the parole

revocation hearings. To establish First Amendment retaliation, Plaintiff must successfully allege

that (1) his speech was constitutionally protected, (2) he has suffered a deprivation likely to deter

free speech, and (3) his speech was at least a motivating factor in the [defendant's] action.

Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Here, Plaintiff does not identify any

protected speech for which he suffered retaliation. This is so, as the refusal to comply with

conditions of MSR is not protected First Amendment activity. Furthermore, as treatment was one

of the conditions of MSR, it would appear that Defendant Fink would have cited Plaintiff,

regardless of retaliatory motive . See Spiegla v. Hull, 371 F.3d 928, 942 (7th Cir. 2004) (if the

same action would have occurred regardless of the retaliatory motive, the claim fails).

Plaintiff also alleges that Defendant Fink violated his due process when he intentionally

wrote down the wrong dates for the two parole revocation hearings. Plaintiff appears to allege

that he spent 81 days in custody on the two charges with the inference that, had the “correct”

dates been written, his period in custody would have been shorter.

The Illinois Administrative Code provides at ch. 20, § 1610.140 (b)(3) that “preliminary

hearing shall be held within 10 days of the parolee's apprehension unless continued by the

hearing officer for up to an additional two weeks to permit the production of witnesses or

materials relevant to the hearing.” See U.S. Gov't ex rel. Evans v. Johnson, 07 C 1942, 2008 WL

4542240, at *1 (N.D. Ill. May 28, 2008) citing Morrissey v. Brewer, 408 U.S. 471, 485, 490, 92

S.Ct. 2593, 33 L.Ed.2d 484 (1972) which required “preliminary hearing to take place ‘as

promptly as convenient after arrest,’ but refusing to impose a strict time limit”. Here, Plaintiff

does not allege that it was Defendant Fink who scheduled the PRB hearings or reveal how long

he was held prior to those hearings. This claim is DISMISSED, though Plaintiff will be given an

opportunity to replead with more detail

Plaintiff, further, makes a bare claim that his equal protection rights were violated. He

does not allege, however, that he was treated differently from other similarly situated individuals

or that he was singled out for unfair treatment. Abcarian v. McDonald, 617 F.3d 931, 938 (7th

Cir.2010), “The Equal Protection Clause of the Fourteenth Amendment most typically reaches

state action that treats a person poorly because of the person's race or other suspect

classification… A class-of-one claim need not allege discrimination based on a suspect

classification, but must allege that the plaintiff was singled out arbitrarily, without rational basis,

for unfair treatment.” Plaintiff’s Equal Protection claim is DISMISSED.

In addition to Defendant Fink, Plaintiff names Parole Supervisor Lukow, the PRB and

IDOC Director Jeffreys. hese claims appear to be premised on the doctrine of respondeat

superior (supervisor liability), which does not apply to actions filed under 42 USC §1983.

Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992). Section 1983 liability is predicated on fault,

so to be liable, a defendant must be “personally responsible for the deprivation of a constitutional

right.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.2001) (quoting Chavez v. Ill. State

Police, 251 F.3d 612, 651 (7th Cir.2001)). “A defendant will be deemed to have sufficient

personal responsibility if he directed the conduct causing the constitutional violation, or if it

occurred with his knowledge or consent.” Ames v. Randle, 933 F.Supp.2d 1028, 1037–38

(N.D.Ill.2013) (quoting Sanville, 266 F.3d at 740). Plaintiff fails to plead such allegations and

these Defendants are DISMISSED.

The PRB is dismissed for the additional reason that it is not a “person” amendable to suit

under § 1983. See Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (state agencies are not

“persons” that may be sued under § 1983); Gonzales v. Madigan, No.16 -7915, 2017 WL

977007, at *4 (N.D. Ill. Mar. 14, 2017) (the PRB is not a “person” for purposes of

§ 1983). Furthermore, as state agencies, the PRB and IDOC enjoy the State’s Eleventh

Amendment immunity from suit. See Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.2001)

(Eleventh Amendment bars federal court suit for money damages against Department of

Corrections); Gonzales v. Madigan, No.16- 7915, 2017 WL 3978703, at *10 (N.D. Ill. Sept. 11,

2017) (applying Eleventh Amendment immunity to PRB).

IT IS THEREFORE ORDERED:

1. Plaintiff’s motion for leave to amend [17] is GRANTED. The Clerk is directed to

file the amended complaint.

2. Plaintiff's amended complaint is dismissed for failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff shall have a final opportunity, within

30 days, to file a second amended complaint. Plaintiff's second amended complaint will replace

all prior complaints and must contain all of his claims without reference to a prior pleading.

Plaintiff is not to plead any Heck-barred claims unless his conviction has been overturned or

invalidated. Failure to file an amended complaint will result in the dismissal of this case, without

prejudice, for failure to state a claim. Defendants Lukow, Jeffreys and the PRB are DISMISSED

with prejudice.

_10/26/2020 s/Joe Billy McDade

ENTERED JOE BILLY McDADE

UNITED STATES DISTRICT JUDGE