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 –THIRD AMENDED COMPLAINT

Plaintiff, a former prisoner, proceeding pro se, files a third amended complaint asserting

violations of the Eighth Amendment and Fourteenth Amendment Due Process and Equal

Protection. The third amended complaint is now before the Court for a threshold review pursuant

to 28 U.S.C. § 1915A. In reviewing the third 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’s fourth attempt at pleading is confusingly and incompletely pled, despite the

Court’s three prior merit review orders in which it provided instructions and guidance. Plaintiff is

currently serving a term of mandatory supervised release (“MSR”), also known as parole, after

having been released from confinement. Plaintiff claims without adequate explanation that his

parole agent Defendant Fink, violated his constitutional rights by “not marking the correct

boxes…” presumably on a parole revocation report. As a result, the Prisoner Review Board

(“PRB”) did not convene a revocation hearing within 10 days, though it later dismissed the

charges for lack of probable cause.

Plaintiff does not reveal when the hearing was held but claims that the delay attributable to

Defendant Fink caused him to be held longer than would otherwise have been necessary. Plaintiff

does not complain of the conditions in detention or claim physical injury, but nonetheless asserts

that the lengthened period of detention caused him to suffer psychological and emotional injury.

Plaintiff also alleges, without pleading facts in support, that Defendant Funk has threatened him

with “continued persecution.” Plaintiff requests money damages; that he be assigned a new parole

officer; and that all terms of parole, also known as Mandatory Supervised Release (“MSR”), be

lifted.

ANALYSIS

Here, Plaintiff claims that Defendant purposefully marked the wrong box on a form or

report, causing his hearing to be delayed and his pre-hearing detention to be extended. Plaintiff

alleges that in doing so, Defendant deprived him of due process, violated his equal protection

rights and exhibited deliberate indifference. It is well established that a prisoner is entitled to due

process where there is a protected liberty or property interest at stake. Domka v. Portage County,

523 F.3d 776, 779–80 (7th Cir. 2008). Here, however, Plaintiff pleads only that his pre-hearing

detention was extended, without pleading atypical hardship so as to implicate a protected liberty

interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995). If there is no constitutional right at

issue, there is no due process requirement. Brokaw v. Mercer Co., 235 F.3d 1000, 1020 (7th Cir.

2000).

Plaintiff also fails to plead an equal protection claim as he does not allege that he is a

member of a suspect class treated differently from other similarly situated individuals; or that he

was unreasonably singled out for unfair treatment. See Abcarian v. McDonald, 617 F.3d 931, 938

(7th Cir. 2010). Plaintiff’s prior equal protection claim was dismissed for this very reason and

Plaintiff has repled it without appropriate change, one more failing to identify a sufficient factual

basis for the claim.

Plaintiff, further, cannot state an Eighth Amendment deliberate indifference claim for

mental or emotional damages where he has not alleged a physical injury. See Zehner v. Trigg, 133

F.3d 459, 460 (7th Cir. 1997) (a plaintiff cannot recover for mental or emotional injury without

showing a “physical injury as required by Section 803(d) of the Prison Litigation Reform Act

(‘PLRA’), codified as 42 U.S.C. § 1997e(e).”

There is an additional impediment as Plaintiff’s request that his parole terms be

extinguished runs afoul of Heck v. Humphrey, 512 U.S. 477 (1994). Heck prohibits a prisoner

obtaining money damages in a § 1983 suit where a judgment in [his] favor “would necessarily

imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. This is so, unless “the

conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of

habeas corpus.” Id. at 489. The Heck-bar 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).

A challenge to conditions of MSR is considered a challenge to the sentence and is not

allowed under Heck. Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003). Plaintiff was

previously advised of this but, undaunted, repleads it without advancing any argument as to why

Heck should not apply.

In his complaint, Plaintiff requests that pro bono counsel be recruited to represent him.

Plaintiff does not offer any facts to support the need for counsel and does not assert that he made

any attempts to secure counsel on his own during the time he was released from confinement. See

Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).

Plaintiff’s third amended complaint is dismissed, and no further amendments will be

allowed. This is so, as a court is not required to allow a plaintiff to replead after “repeated failure

to cure deficiencies by amendments previously allowed.” Foman v Davis, 371 U.S. 178, 182

(1962); see also, Stanard v Nygren, 658 F.3d 792, 801 (7th Cir. 2011) (affirming dismissal with

prejudice after plaintiff “had three opportunities to file a complaint that complied with the rules,

yet he failed to follow basic instructions from the court.”); Lyon v. Brown, 151 F.3d 1033 at *2

(7th Cir. 1998) (affirming dismissal with prejudice of third amended complaint where plaintiff

had not cured deficiencies identified in previous complaints).

IT IS THEREFORE ORDERED:

1) Plaintiff's complaint is dismissed with prejudice for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A and failure to follow the Court’s

Orders pursuant to Fed. R. Civ. P. 41. This case is closed. The clerk is directed to enter a

judgment pursuant to Fed. R. Civ. P. 58.

2) If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this

Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal

in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed. R. App.

P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee

irrespective of the outcome of the appeal.

_10/15/2021 s/Joe Billy McDade

ENTERED JOE BILLY McDADE

UNITED STATES DISTRICT JUDGE