Vernon v. McGlone

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DERRICK VERNON, )

)

Plaintiff, )

)

vs. ) Case No. 22 C 4890

)

N. McGLONE, J. RIGGS, )

VANESSA BELL, MATTHEW SWALLS, )

and UNKNOWN AND UNNAMED ILLINOIS )

DEPARTMENT OF CORRECTIONS )

PERSONNEL, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Derrick Vernon, who was formerly incarcerated at various Illinois Department of

Corrections (IDOC) facilities, asserts claims under 42 U.S.C. § 1983 against N.

McGlone, the records office supervisor at Vienna Correctional Center, and Matthew

Swalls, the warden there; Vanessa Bell, the records office supervisor at Western Illinois

Correctional Center; Jane Riggs, the records office supervisor at Kewanee Life Skills

Re-entry Center; and unknown and unnamed IDOC personnel. Vernon alleges that the

defendants violated his rights under the Eighth Amendment by repeatedly dismissing

his complaints that his release date was wrong and causing him to remain in prison for

approximately two and one-half years after he had completed the full term of his

sentence. The defendants have moved to dismiss Vernon's claim under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons set forth below,

the Court dismisses Vernon's claims against defendant Matthew Swalls but otherwise

denies the motion.

Background

The following facts are taken from Vernon's complaint and the defendants'

motion. In 1997, Vernon was convicted of an offense in Tennessee state court and was

sentenced to prison terms totaling twenty-four years. From September 2, 1995 to June

16, 1999, Vernon remained in custody in Tennessee.

In June 1999, Vernon was extradited to Cook County and held in pretrial

detention for a murder he allegedly committed in 1993.1 In April 2003, Vernon was

convicted for that offense, and in May 2003, a state court judge sentenced him to a

thirty year prison term, to be served consecutive to his Tennessee sentence. The

Illinois state court judge granted Vernon 1,456 days of time-served credits to be applied

to his sentence for the time he spent awaiting trial in Illinois.

In July 2003, Vernon was returned to Tennessee to complete service of his

sentence there. In January 2009, Vernon completed his Tennessee sentence and was

transported to Illinois to begin serving his Illinois sentence.

The first IDOC facility to which Vernon was sent was the Northern Reception and

Classification Center (NRCC) in Joliet, Illinois. Vernon alleges that, upon his arrival at

the NRCC, a record office supervisor "miscalculated [his] release date by failing to apply

any good time credit or credit for 1,456 days actually served." First Am. Compl. ¶ 15.

In March 2009, Vernon was transported to Menard Correctional Center. Vernon

1 Because Vernon was prosecuted under the name "Derrick Crowder" in the Illinois

criminal case, his last name in IDOC's records while in custody was Crowder, not

Vernon.

alleges that "[t]hereupon, IDOC personnel determined that [he] should receive fifty

percent good time credit against the thirty-year Illinois sentence." Id. ¶ 17.

Then, in October 2009, Vernon was transported to Western Illinois Correctional

Center (WICC). Vernon remained incarcerated there until July 2013. Vernon alleges

that, while at WICC, he "informed the facility's records office supervisor, Vanessa Bell,

by various means, that his 1,456 days of credit were not being applied against his

sentence, and his release date was miscalculated." Id. ¶ 19. He further alleges that

Bell "willfully opposed [his] request to apply the credits" and was "deliberately indifferent

to facts demonstrating [his] release date had been miscalculated." Id. ¶ 20.

On June 5, 2013, Vernon filed a motion for post-conviction relief in Illinois state

court, contending that he was "entitled to 1,518 days of jail-time credits against his

Illinois sentence." Defs.' Mot. to Dismiss, Ex. 4, Motion for Order Nunc Pro Tunc, filed

June 5, 2013. On June 27, 2013, the state court denied Vernon's motion. Vernon

appealed, and the Illinois Appellate Court affirmed the trial court's ruling. People v.

Crowder, No. 1-13-2578, slip op. ¶¶ 4-5 (Ill. App. Ct. June 22, 2015).

In July 2013, Vernon was transported to Big Muddy River Correctional Center,

where he remained in custody until September 2015. In September 2015, Vernon was

transported to Centralia Correctional Center, where he remained in custody until April

2016. In April 2016, Vernon was transported to Robinson Correctional Center, where

he remained in custody until July 2018. Vernon alleges that, while at all three facilities,

he informed each facility's records office supervisor of his release date miscalculation

and that each supervisor "willfully opposed [his] request to apply the credits" and was

"deliberately indifferent to facts demonstrating [his] release date had been

miscalculated." Id. ¶¶ 22–29.

In July 2018, Vernon was transported to Vienna Correctional Center, where he

remained in custody until July 2021. Vernon alleges that, while at Vienna, he "informed

the facility's records office supervisor, N. McGlone, and the warden, Matthew Swalls,

that his 1,456 days of credit were not being applied against his sentence and his

release date was miscalculated." Id. ¶ 31. Vernon further alleges that both McGlone

and Swalls "willfully opposed [his] request to apply the credits" and were "deliberately

indifferent to facts demonstrating [his] release date had been miscalculated." Id. ¶ 32.

Finally, in July 2021, Vernon was transported to Kewanee Life Skills Re-entry

Center, where he remained until his release from IDOC custody on February 22, 2022.

Vernon alleges that, while at Kewanee, he "informed the facility's records office

supervisor, J. Riggs that his 1,456 days of credit were not being applied against his

sentence and his release date was miscalculated." Id. ¶ 31. Vernon alleges that Riggs

"responded that the Chief Supervisor in Springfield had already addressed [his] issue in

2011 and concluded that [his] credits were calculated correctly." Id. ¶ 36. He also

alleges that Riggs "willfully opposed [his] request to apply the credits" and was

"deliberately indifferent to facts demonstrating [his] release date had been

miscalculated." Id. ¶ 37.

On February 16, 2022, Vernon alleges, he informed Kewanee's warden, James

Corothers, of his release date miscalculation. Vernon says that on February 22, 2022,

records office supervisor Riggs "recalculated [Vernon's] sentence and determined that

[he] was supposed to be awarded 1,456 days credits for time actually served against his

Illinois sentence and that his release date was supposed to be June 9, 2019." Id. ¶ 39.

Vernon was released that same day.

Vernon alleges that, in total, he was imprisoned for 989 days beyond the

appropriate conclusion of his prison sentence in violation of the Eighth Amendment. On

September 9, 2022, Vernon filed the present action. The defendants have moved to

dismiss for failure to state a claim.

Discussion

In deciding a motion to dismiss for failure to state a claim, a court must accept as

true all well-pleaded factual allegations in the complaint and draw all reasonable

inferences in the plaintiff's favor. See Heng v. Heavner, Beyers & Milhar, LLC, 849 F.3d

348, 351 (7th Cir. 2017). To survive a motion to dismiss, a plaintiff must allege "factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602

(7th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

The defendants have moved to dismiss Vernon's claim on the following grounds:

(1) his claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994) because he failed

to seek state court relief or habeas relief prior to bringing his section 1983 claim; (2) he

cannot maintain an Eighth Amendment claim based on a mistake of Illinois law; (3) even

if Vernon could state a claim under the Eighth Amendment, he does not allege sufficient

facts establishing that defendant Swalls, a prison warden, was personally involved in

the claimed misconduct; (4)Vernon likewise fails to allege sufficient facts to show

defendant Riggs was deliberately indifferent given that she was the one who ultimately

ensured he was released; and (5) the defendants are entitled to qualified immunity. The

Court agrees with the defendants that Vernon has not alleged sufficient facts regarding

Swalls's involvement in a violation of Vernon's Eighth Amendment rights but overrules

all of the defendants' other arguments for dismissal.

A. Heck bar

Among other things, the defendants contend that Vernon's claim is barred under

Heck. In Heck, the Supreme Court held that:

in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a

federal court's issuance of a writ of habeas corpus.

Id. at 486. Thus, Heck bars a lawsuit under section 1983 where a judgment in favor of

the plaintiff necessarily would imply the invalidity of his criminal conviction or sentence,

unless the criminal conviction or sentence has been declared invalid. Id. at 487; see

also, Savory v. Cannon, 947 F.3d 409, 424–29 (7th Cir. 2020) (holding that Heck's

favorable termination rule applies in all section 1983 cases that implicate "the validity of

[a] conviction or the length of [a] sentence" regardless of the availability of habeas

relief).

The defendants contend that Vernon's allegations call into question the duration

of his confinement, which implicates Heck and its progeny. See, e.g., Wilkinson v.

Dotson, 544 U.S. 74, 81–82 (2005) (holding that "a state prisoner's § 1983 action is

barred (absent prior invalidation)—no matter the relief sought (damages or equitable

relief), no matter the target of the prisoner's suit (state conduct leading to conviction or

internal prison proceedings)—if success in that action would necessarily demonstrate

the invalidity of confinement or its duration") (emphasis added). The defendants further

contend that fact that Vernon is no longer in custody does not relieve him of the

favorable termination requirement. Heck, 512 U.S. at 490 n.10; see also, Savory, 947

F.3d at 420–21 (holding that Heck footnote ten is binding and has not yet been

abrogated by the Seventh Circuit). Vernon contends that his claim does not trigger

Heck because he is not challenging the validity of his underlying conviction or sentence.

Instead, he contends he is challenging the constitutionality of the conduct of the IDOC

officials to whom he brought his complaints regarding the error they made when

calculating his release date.

The Court agrees with Vernon. He in no way disputes the propriety of his

conviction, the length of his sentence, or even the time-served credits that he was

owed. Rather, he challenges the defendants' failure to investigate his complaints

regarding their misapplication of those credits to his sentence. The conduct that Vernon

alleges resulted in him being confined beyond the end of his actual sentence. As the

defendants point out, "[t]he test for whether damages are barred under section 1983 is

whether the district court's 'favorable termination' of the litigation would have the effect

or implication that the prisoner's conviction or sentence was invalid." Defs.' Mot. to

Dismiss at 6 (quoting Heck, 512 U.S. at 487-88). Here it would not. A judgment in this

case in Vernon's favor would not imply or in any other way call into question his

sentence or conviction. Rather, he would be recovering damages for being confined

beyond the actual term of his sentence based on the deliberate indifference of the IDOC

officials who, he says, turned the other way when he informed them of the improper

confinement.

For these reasons, Vernon's failure to seek relief in state court or via a habeas

corpus petition does not preclude his section 1983 claim under Heck. The Court

declines to dismiss Vernon's claim on this basis.

B. Eighth Amendment

Vernon alleges that the defendants violated his Eighth Amendment rights by

detaining him for approximately two and one-half years beyond the actual term of his

sentence. An incarcerated person may sustain a claim for an Eighth Amendment

violation if he is incarcerated for longer than he should have been without penological

justification because of the deliberate indifference of prison officials. See Childress v.

Walker, 787 F.3d 433, 439 (7th Cir. 2015); Armato v. Grounds, 766 F.3d 713, 721 (7th

Cir. 2014). An official is deliberately indifferent when, "despite a known risk," he or she

"does nothing" or when he or she "takes action that is so ineffectual under the

circumstances that deliberate indifference can be inferred." Figgs v. Dawson, 829 F.3d

895, 903 (7th Cir. 2016).

The defendants contend that "[Vernon] cannot state an Eighth Amendment claim

based on a mistake of Illinois law." Defs.' Mot. to Dismiss at 1. They further contend

that "'the Supreme Court has never held that keeping a person in prison beyond the end

of his term violates the Eighth Amendment,' because mistakes of state law do not

necessarily implicate the Cruel and Unusual Punishments Clause." Defs.' Mot. to

Dismiss at 5 (quoting Wells v. Caudill, 967 F.3d 598, 602 (7th Cir. 2020)).

Vernon, however, does not assert a claim that the defendants made a mistake of

state law. It may be that the defendants' claimed repeated ignoring of Vernon's

complaints about his release date—and thus incarcerating him longer than the law

allowed—constitutes an error of state law. But that does not mean that is all it was. To

put it another way, the fact that conduct also violates state law does not preclude it from

also violating the federal Constitution. A police officer's use of excessive force, for

example, typically constitutes battery (or more) or under state law, but it may also

violate the Constitution. Vernon has also alleged that his federal constitutional rights

were violated based on the defendants' deliberate indifference to his legally improper

detention. The Seventh Circuit has concluded that such conduct may violate the

Constitution. Figgs, 829 F.3d 895, 902 (7th Cir. 2016) ("Incarceration beyond the date

when a person is entitled to be released violates the Eighth Amendment if it is the

product of deliberate indifference.").

For these reasons, Vernon is not entitled to dismissal on this basis.

C. Swalls and Riggs

The defendants contend that Vernon has failed to allege sufficient facts that

would allow a plausible inference that defendants Swalls, Vienna's warden, and Riggs,

the records office supervisor at the Kewanee Life Skills Re-entry Center, were

deliberately indifferent to a known and significant risk that Vernon was being imprisoned

beyond his release date. The Court agrees with defendants regarding Swalls, but not

Riggs.

Regarding Riggs, Vernon alleges that he informed Riggs in July 2021 about the

error in his release date. He further alleges that in August 2021, Riggs told him that his

complaint had already been addressed by "the Chief Supervisor in Springfield" back in

2011. First Am. Compl. ¶ 36. The defendants seize upon the fact that it was Riggs who

ultimately investigated and corrected Vernon's release date in February 2022,

contending that this undercuts Vernon's allegation that Riggs was deliberately

indifferent. But the fact that Riggs ultimately took appropriate action does not mean

that, as a matter of law, she could not have been deliberately indifferent at an earlier

time. From Vernon's allegations, one may plausibly infer that Riggs did not take steps

to actually address the issue until after he raised it again in February 2022, this time by

going over her head to the warden, James Corothers. One may plausibly infer Riggs

was deliberately indifferent by ignoring Vernon's complaint until months later, when

Vernon got her boss involved.

Regarding Swalls, however, Vernon alleges only that he "informed" Swalls that

his release date was miscalculated and then states, in a conclusory fashion, that Swalls

willfully ignored his request. This bare conclusion is insufficient to support a deliberate

indifference claim against him. In his response to the defendants' motion to dismiss,

Vernon states that, from these facts, one could draw the inference that Swalls failed to

ensure that the records office supervisor at his facility adequately investigated the issue.

But no facts are alleged that would support this. Among other things, Vernon says

nothing about Swalls's involvement—if any—in overseeing the review of Vernon's time

calculation or any of his complaints.

For these reasons, the Court dismisses Vernon's claim against Swalls but

declines to dismiss his claim against Riggs.

D. Qualified immunity

Finally, the defendants argue that even if Vernon has raised triable claims that

they violated his constitutional rights, they are entitled to qualified immunity.

"The doctrine of qualified immunity protects government officials from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Figgs, 829 F.3d

at 905 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (internal quotation

marks omitted). Once a defendant raises the qualified immunity defense, a plaintiff

must show a violation of his federal constitutional rights and that the constitutional

standard at issue was "clearly established at the time of the alleged violation." Id. The

law is "clearly established" when "various courts have agreed that certain conduct is a

constitutional violation under facts not distinguishable in a fair way from the facts

presented in the case at hand." Id. (quoting Campbell v. Peters, 256 F.3d 695, 699 (7th

Cir. 2001)). "[A] plaintiff is not required initially to plead factual allegations that

anticipate and overcome a defense of qualified immunity." Jacobs v. City of

Chicago, 215 F.3d 758, 765 n. 3 (7th Cir. 2000).

Defendants argue that they are "entitled to qualified immunity because there was

no clearly established law that pretrial credits should be applied to defendants'

consecutive sentences with the risk that double-credits would be applied in violation of

[the provision of the Illinois Uniform Code of Corrections that governs calculating

consecutive sentences and credits, 730 Ill. Comp. Stat. 5/5-8-4(e)]." Defs.' Mot. to

Dismiss at 15. But that's not the claim Vernon asserts, or at least it can't be read that

way in his complaint. First, nowhere in the complaint does Vernon allege that a

misinterpretation of 730 Ill. Comp. Stat. 5/5-8-4(e) is what caused him to be imprisoned

beyond his release date. Rather, what he has alleged is that the defendants willfully

ignored and were deliberately indifferent to his requests to have his release date

corrected. The defendants may have a viable qualified immunity argument along these

lines at the summary judgment stage, but there is no basis for a qualified immunity

dismissal under Rule 12(b)(6) based on the complaint as Vernon has alleged it.

Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) ("a complaint is generally not

dismissed under Rule 12(b)(6) on qualified immunity grounds" . . . . "because an

immunity defense usually depends on the facts of the case").

As already discussed, Vernon's allegations are sufficient at this stage to support

an inference that the defendants violated Vernon's Eighth Amendment rights by turning

a blind eye to complaints and failing to take steps to verify his correct release date.

Thus, the availability of the qualified immunity defense turns on whether the relevant

constitutional standard was "clearly established at the time of the alleged violation,"

from January 2009 through February 2022. Campbell, 256 F.3d at 699. It was. See

Haygood v. Younger, 769 F.2d 1350, 1354–55 (9th Cir. 1985) (holding that the Eighth

Amendment is violated when prolonged detention is the result of deliberate indifference,

where prison officials failed to investigate claims in prisoner's letter questioning the

method used to compute his release date); Sample v. Diecks, 885 F.2d 1099, 1108–10

(3d Cir. 1989) (holding same, where senior record officer failed to take substantive

action on prisoner's claim that he was being held despite the expiration of his sentence);

Alexander v. Perrill, 916 F.2d 1392, 1397–99 (9th Cir. 1990) (rejecting defendants'

qualified immunity argument and concluding that the right to be free from incarceration

beyond the expiration of one's sentence was clearly established, where prison officials

failed to investigate the prisoner's claim that he was incorrectly denied credit for time

served in a foreign jail).

Moreover, in Figgs, a closely analogous case, the Seventh Circuit held that as of

2011, when the plaintiff had complained to a prison record official that his release date

was wrong, "it was clearly established . . . that the failure to investigate a claim that an

inmate is being held longer than the lawful term of his sentence violates the Eighth

Amendment if it is the result of indifference." Figgs, 829 F.3d at 906. In light of Figgs

and the cases preceding it, the defendants' qualified immunity defense lacks merit.

To get around this issue, the defendants attempt to locate the "clearly

established" inquiry in the highly specific set of facts that they contend led to Vernon's

over-detention—facts that Vernon himself does not allege in his complaint—specifically,

whether Vernon was entitled to "double days of credits for consecutive sentences."

Defs.' Mot. to Dismiss at 11. Again, however, this is not what Vernon alleges in his

complaint, which is what the Court has to consider at the current procedural stage of the

case. That aside, in order for the law to be clearly established, "'the very action in

question' need not have previously been held unlawful for a public official to have

reasonable notice of the illegality of some action." Figgs, 829 F.3d at 906 (quoting Viilo

v. Eyre, 547 F.3d 707, 710–11 (7th Cir. 2008). The situation here, as alleged in

Vernon's complaint, is that he put the defendants on notice of the illegality of his

continued incarceration but they did nothing to investigate this. Analyzing the "clearly

established" question in the manner the defendants propose ignores the "broader

deficiencies" with the course of action, or inaction, Vernon alleges that the defendants

took. Id.

In sum, the defendants are not entitled to dismissal under Rule 12(b)(6) based on

their defense of qualified immunity.

Conclusion

For the foregoing reasons, the Court dismisses the plaintiff's claims against

defendant Matthew Swalls but otherwise denies the motion [dkt. no. 27]. The remaining

defendants are directed to answer the amended complaint within twenty-one days of

this order. In addition, the Court directs the parties to confer and attempt to agree upon

a discovery and pretrial schedule. A joint status report in this regard is to be filed on

May 1, 2023. The case is set for a telephonic status hearing on May 5, 2023 at 9:10

a.m., using call-in number 888-684-8852, access code 746-1053.

MATTHEW F. KENNELL

United States District Jud

Date: April 24, 2023

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