# Beard v. Fink

> District Court, C.D. Illinois · October 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10136038

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** October 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136038

## How later opinions describe it (automated extraction)

- applying Eleventh Amendment immunity to PRB

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136038. Public record. Not legal advice.