# Ortega v. Shelton

> District Court, S.D. Illinois · November 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10151244

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 21, 2019
- **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/10151244

## How later opinions describe it (automated extraction)

- holding that a challenge to a procedural defect can still imply the invalidity of a judgment and, therefore, would be barred by Heck

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ALDO ORTEGA,

Plaintiff,

v. Case No. 3:17-CV-1091-NJR-GCS

CONNIE HALLIDAY, DAVID RAINS,
ROGER MOSS, CRAIG FINDLEY,
JOHN BALDWIN, and
BRITNI HUDLESTON,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:
This matter is before the Court on the Motions for Preliminary Injunction
(Docs. 19, 87, 101), filed by Plaintiff Aldo Ortega, an inmate of the Illinois Department
of Corrections (“IDOC”), as well as the Motion for Summary Judgment filed by
Defendants John Baldwin, Connie Halliday, Britni Huddleston, Roger Moss, Craig
Findley, and David Rains (Doc. 76).1 For the reasons set forth below, Ortega’s motions
are denied, and Defendants’ motion for summary judgment is granted.
BACKGROUND
Plaintiff Aldo Ortega was found guilty of reproducing and selling child
pornography in Cook County, Illinois, in June 2012 (Doc. 13-1 at pp. 4-5). He was
sentenced to four years of incarceration with a Mandatory Supervised Release (MSR)
1 The Clerk of Court is DIRECTED to correct Defendants’ names on the docket as follows: Britni
Huddleston for Britney Hudleston and Roger Moss for Randy Moss.
term of three years to life (Id. at pp. 4, 8).2 On December 13, 2013, Ortega was released
from Centralia Correctional Center on MSR (Id.). After serving 19.5 months of his term of

supervised release, on August 5, 2015, Ortega allegedly violated the conditions of his
MSR (Doc. 13, p. 5; Doc. 13-1, p. 8).
On August 10, 2015, Ortega was served with a Parole Violation Report, which cited
him for violating Condition #15 for possession of alcohol, smart cell phones, a computer,
and sexually explicit material by a sex offender (Doc. 13-1, p. 7). It also cited Ortega for
violating Condition #16 for failure to comply with sex offender counseling, computer and

internet restrictions, and GPS monitoring (Id.). Because these alleged violations occurred
at his original host site—his parents’ house—the parole agent requested that the site be
deemed unsuitable in the future (Doc. 13-1, pp. 8-10).
The Prisoner Review Board (PRB) held a revocation hearing in September 2015
(Doc. 34-3), at which Ortega could have been sentenced to up to two years of incarceration

for violating the terms of his MSR pursuant to 730 ILL. COMP. STAT. § 5/3-3-9(a)(3)(C).
Instead, the PRB continued the hearing on Ortega’s violation to March 2016 (Id.).
On March 15, 2016, the PRB reconvened and noted that Ortega had “no suitable
host site” to which he could be released (Doc. 34-4). Although Ortega’s previous PRB
Order stated he had violated Conditions #15 and #16, the March 15, 2016 Order now

stated he had violated Condition #5, which requires the parolee to have a suitable host
site (Id.). The PRB then continued consideration of Ortega’s revocation for another six

2 For persons committing certain kinds of felony sex offenses, “the term of mandatory supervised release
shall range from a minimum of 3 years to a maximum of the natural life of the defendant.” 730 ILCS 5/5-
8-1(d)(4). The MSR period is an indeterminate sentence. People v. Rinehart, 962 N.E. 2d 444 (Ill. 2012).
months (Id.).3
The PRB convened a third revocation hearing on September 7, 2016 (Doc. 13-1,

p. 18). At this hearing, the PRB noted that the “violation date of record is 8/5/15,” and
that Ortega would have “Continued release eligibility 2 years after [8/5/15].” (Id.).
On March 8, 2017, Ortega received a communication from Field Services titled
“RESIDENCE PLAN DENIED,” which informed him that his host site (his parents’
house) was denied for having unsuitable or unsafe conditions (Doc. 13-1, p. 22). Ortega
filed a grievance related to the denial, requesting that his parents’ home be reinstated as

an approved host site since it had previously been approved and he had lived there for
19 months (Doc. 13-1 at pp. 29-31).
In August 2017, two years after his original parole violation, Ortega still had not
found a suitable host site at which to reside while on supervised release. Thus, on August
4, 2017, Ortega was issued a Parole Violation Report, indicating he had violated

Condition #5 for failing to provide a host site, and an IDOC warrant was issued (Doc. 13-
1, pp. 24-25).
On August 7, 2017, Ortega filed a grievance stating that he had been declared a
“violator” as of August 5, 2015, and was ordered re-confined for two years (Doc. 13-1 at
pp. 35-36). Under 730 ILL. COMP. STAT. § 5/3-3-9(a)(3)(C), his two-year period of re-

confinement expired on August 5, 2017 (Id.). Ortega asked that he be immediately
released and his MSR be “revoked.” Under Ortega’s apparent understanding of the

3 Defendants assert that while Ortega’s reincarceration was due to his violation of Conditions #15 and #16,
he was also in violation of Condition #5, because he had no alternative, suitable host site to which to be
released.
meaning of the word “revoked,” he demanded that he be released without any MSR or
parole terms still in effect (Id.). He further stated, “I don’t want to hear or see that the PRB

cannot revoke my parole as it clearly states in the statutes that they can absolutely revoke,
and is revoked when they order reconfinement for parole violation(s).” (Id. at p. 36).
On September 20, 2017, the PRB conducted its revocation hearing for the 2017 host
site violation (Doc. 34-5). The PRB’s Order noted that Ortega put his parents’ address for
his host site, but the home was denied as unsatisfactory. It further noted that Ortega’s
future “[r]elease [will be] effective upon the approval of a viable host site as determined

by IDOC.” (Id.). Ortega, therefore, remained in prison for lack of a suitable host site.
Less than a month later, Ortega initiated this lawsuit. He is now proceeding on his
First Amended Complaint (Doc. 13). After a threshold review of the First Amended
Complaint (Doc. 18), the Court allowed Ortega to proceed on the following claims:
Count 1: Defendants IDOC Director John Baldwin and PRB chairman
Craig Findley, in their official capacities, violated Ortega’s
right to procedural due process of law under the Fourteenth
Amendment when they repeatedly declined to release him on
parole for lack of a suitable host site, to the extent Ortega seeks
declaratory and injunctive relief.

Count 2: Defendants John Baldwin, Craig Findley, Connie Halliday,
Britney Hudleston, David Rains, and Randy Moss violated
Ortega’s right to substantive due process of law under the
Fourteenth Amendment when they repeatedly declined to
release him on parole for lack of a suitable host site.

Count 3: Defendants John Baldwin, Craig Findley, Connie Halliday,
Britney Hudleston, David Rains, and Randy Moss subjected
Ortega to cruel and unusual punishment under the Eighth
Amendment by holding him in IDOC custody beyond his
term of his incarceration.
Motions for Preliminary Injunction

In his Amended Complaint, Ortega also included a request for injunctive relief in
the form of an order requiring Defendants: to cease all unauthorized and illegal actions;
to conduct a review of all cases of inmates who have been convicted of sex crimes; and to
credit their confinement if still ongoing or, if on MSR or parole as stated under 730 ILL.
COMP. STAT. § 5/3-3-9, to release them upon completion of the two-year period and
consider their obligation to the IDOC and PRB fulfilled (Doc. 13 at p. 19).
On January 16, 2019, Ortega filed a second motion for preliminary injunction

(Doc. 87), and on April 19, 2019, Ortega filed a third motion for preliminary injunction
(Doc. 101) that asks for the same relief. Ortega asks for an order providing that:
1. MSR Agreement, IDOC 0104,4 not be required to be signed by people
eligible for release from an institution that have been unable to obtain
an approved host site or halfway house to begin their parole or MSR.

2. MSR Agreement, IDOC 0104, not be required for people eligible for
release from IDOC “who have elected for assisting in the process to
attend a program or residence in a facility established for the
instruction or residence of people on parole or MSR.”

3. The practice of issuing warrants for those not released on parole or
MSR be discontinued.

4. The practice of serving people not released with violation reports and
notice of charges be discontinued.

5. The practice of a supervising officer requesting warrants for those
eligible for release that have not been released into a community be
discontinued.

4 Defendants explain that “Mandatory Supervised Release Agreement DOC 0104” is an agreement that
defines the terms by which individuals are conditionally released from confinement on MSR. Inmates are
required to sign this form, acknowledging understanding of the conditions and rules governing the
conduct of individuals on MSR and agreeing to comply with those conditions.
6. The PRB refrain from conducting preliminary revocation hearings
and/or final parole revocation hearings on persons not released from
IDOC into a community.

Ortega explained in his motion that IDOC would require him to sign an MSR
agreement prior to his release date. Then, when he presented himself for release—
without a suitable host site—he would be deemed to be in violation of the MSR and a
warrant would issue.
He also stated that IDOC claims to try to locate all places willing to accept a
releasee who is not able to find a suitable location approved by the department. Yet, those
who do not qualify for placement in a halfway house (e.g., sex offenders with electronic
monitoring) and who are unable to locate suitable housing are then issued a warrant as a
violator even though they have never been released. He asserts that the department,
through the issuance of the warrant, can then claim to be affording minimum due process
and can continue to claim custodial rights long after the sentence has been completed.

In response, Defendants argue that Ortega’s claims are barred by Heck v. Humphrey
as he is, in essence, seeking a release from incarceration. They assert that because MSR
conditions relate to the prisoner’s freedom, challenges to such conditions must be
brought in a habeas proceeding. Defendants further argue that Ortega has not met his
burden of demonstrating the required elements for the issuance of a preliminary

injunction.
The Court held a hearing on Ortega’s motions on June 17, 2019 (Doc. 114). The
Court subsequently appointed counsel for Ortega and requested supplemental briefing
on the Heck issue and whether Ortega’s claims are barred as an attempt to invalidate his
conviction (Docs. 115, 120).
On August 19, 2019, Ortega was released from prison on supervised release and

permitted to stay at his parents’ home (Doc. 125). As directed, appointed counsel for
Ortega filed a supplemental brief addressing the Heck issue (Doc. 126). Counsel noted
that Ortega’s release from prison may make his motions for preliminary injunction
moot—but argued instead that an injunction is still necessary to prevent the arbitrary and
erroneous application of IDOC’s procedures for selecting and approving Ortega’s host
site in the future. Counsel further argues that Count II and Count III are not Heck-barred

because Ortega is challenging the IDOC’s implementation of the host site rules rather
than his actual conviction.
Motion for Summary Judgment

On November 9, 2018, Defendants filed a motion for summary judgment arguing,
among other things, that this Court should revisit its decision that Ortega’s claims are not
barred by Heck v. Humphrey (Doc. 76). Defendants assert that if Ortega’s interpretation of
730 ILL. COMP. STAT. § 5/3-3-9(a)(3)(C) is accepted, that would mean he is entitled to a
release from prison without the MSR conditions imposed by the PRB and IDOC. Thus,
his claims necessarily imply the invalidity of his conviction, as MSR terms are part of a
defendant’s judgment.

DISCUSSION
I. Preliminary Injunction
A preliminary injunction is an “extraordinary and drastic remedy” for which there
must be a “clear showing” that a plaintiff is entitled to relief. Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (quoting 11A Charles Alan Wright, Arthur R Miller, & Mary Kay
Kane, FEDERAL PRACTICE AND PROCEDURE §2948 (5th ed. 1995)). The purpose of such an

injunction is “to minimize the hardship to the parties pending the ultimate resolution of
the lawsuit.” Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). A plaintiff has the
burden of demonstrating:
1. a reasonable likelihood of success on the merits;
2. no adequate remedy at law; and
3. irreparable harm absent the injunction.

Planned Parenthood v. Commissioner of Indiana State Dept. Health, 699 F.3d 962, 972 (7th Cir.
2012).
As to the first hurdle, the Court must determine whether “plaintiff has any
likelihood of success—in other words, a greater than negligible chance of winning.”
AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002). “The absence
of an adequate remedy at law is a precondition to any form of equitable relief.” Roland
Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984). The requirement of
irreparable harm eliminates those cases where, although the ultimate relief sought is
equitable, the plaintiff can wait until the end of trial to get that relief. Id. Only if the
plaintiff will suffer irreparable harm in the interim—that is, before a final judgment—can

he obtain a preliminary injunction. Id.
Here, Ortega has failed to demonstrate that he will suffer irreparable harm absent
injunctive relief. “An injury is irreparable for purposes of granting preliminary injunctive
relief only if it cannot be remedied through a monetary award after trial.” East St. Louis
Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 703 (7th Cir. 2005).
Speculative injuries do not justify preliminary injunctive relief, and “a plaintiff cannot
obtain a preliminary injunction by speculating about hypothetical future injuries.” Id. at

704–706; Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (quoting O’Shea v.
Littleton, 414 U.S. 488, 502 (1974) (“[A] preliminary injunction will not be issued simply
to prevent the possibility of some remote future injury.”).
In his motion for injunctive relief, Ortega sought an order directing the IDOC to
discontinue certain practices, including requiring prisoners preparing for release to sign
IDOC 0104, issuing warrants for individuals not released on MSR, and serving those

same people with violation reports. Because Ortega is no longer incarcerated and was
released to his parents’ home, however, any future injury he may suffer at the hands of
Defendants is speculative at best. Because Ortega has not shown that he will suffer
irreparable harm absent injunctive relief, his motions for preliminary injunction
(Docs. 19, 87, 101) are denied.

Moreover, Ortega’s claim in Count I for declaratory relief is moot. In determining
whether a request for declaratory relief is moot, the Supreme Court has held that “the
question in each case is whether the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser v.

Newkirk, 422 U.S. 395, 402 (1975) (citation omitted). As discussed, Ortega has been
released from prison to his parents’ home. Thus, there is no immediate risk that
Defendants will violate Ortega’s procedural due process rights.
The Court further finds that Ortega’s claim does not fall within the “capable-of-
repetition-yet-evading-review exception” to the mootness doctrine. See Eichwedel v.
Curry, 700 F.3d 275, 280 (7th Cir. 2012). For that to happen, Ortega would have to violate

the conditions of his supervised release, be re-incarcerated as a result of the violation,
and, upon becoming eligible for release, his host site would have to be deemed
unsuitable. Ortega has not expressed any intent to continue violating the terms of his
release. See id. Nor is there any certainty that, if he were re-incarcerated, his future host
site would be determined unsuitable. The chances of the situation occurring again is too
speculative to constitute a “continuing controversy” and “to justify the invocation of this

exception to the general mootness standard.” Id.
Accordingly, Ortega’s motions for preliminary injunction (Docs. 19, 87, 101) are
denied. Furthermore, Ortega’s claim for declaratory judgment in Count I is dismissed
with prejudice because it is moot.
II. Heck v. Humphrey

In their motion for summary judgment and in their supplemental briefing on the
issue as requested by the Court, Defendants argue that Heck v. Humphrey bars Ortega’s
claims. Defendants assert that Ortega’s requested relief is prefaced on the belief that an
offender’s MSR term has been satisfied once an offender completes his two-year re-
incarceration for violating his original MSR terms. Defendants argue that immediate

release from prison, without being subjected to any further MSR, directly implicates the
validity of his underlying sentence: four years’ incarceration followed by an MSR term of
three years to life.
The Court asked the parties to brief this issue in light of Murphy v. Raoul, in which
the Northern District of Illinois found that Section 1983 was the proper statutory vehicle
under which a plaintiff should bring a constitutional challenge to the IDOC’s

implementation of Illinois’s statutory scheme governing MSR for indigent sex offenders.
Murphy v. Raoul, 380 F. Supp. 3d 731, 750 (N.D. Ill. 2019). In Murphy, indigent sex
offenders argued that Illinois’s scheme governing MSR created an illegal classification
based on wealth, which indefinitely deprived offenders of their liberty as a result of their
incapacity to pay for a suitable host site. Id. The court in Murphy noted that the case was
about “fair procedure and not release from incarceration, although as a remedial matter

they might end up there.” Id. Thus, the court held that the plaintiffs’ claims were not Heck
barred, as the plaintiffs were disputing the procedures used in host site review—not the
duration of their confinement. Id. “Put a little differently, the plaintiffs d[id] not seek to
invalidate the fact or duration of their confinement. Rather, they [sought] to change the
processes used in determining the penultimate condition of their confinement—

location.” Id.
Defendants distinguish Murphy, arguing that Ortega only brought up the
procedures used by Defendants to deny his parents’ residence as a host site as a passing
reference (Doc. 116). Nor does he seek any relief from the procedures used by IDOC to
deny his host site. Instead, Ortega is seeking relief that would result in his immediate

release and would restrict or eliminate some of the conditions of his MSR.
The Court agrees with Defendants, as the relief Ortega is seeking with regard to
Counts II and III is to be released from prison without any term of mandatory supervised
release. In the operative complaint, Ortega states that prior to his parole revocation
hearing in March 2016, he asked his counselor to inform the PRB that he would be
requesting “to be declared a violator.” (Doc. 13 at ¶ 24). He then twice asked a member

of the PRB to be declared a “violator,” but the PRB member refused (Id. at ¶¶ 27, 28).
Ortega apparently believed that, if he were declared a violator of MSR and his MSR was
“revoked,” he would no longer have to abide by the terms of MSR. Instead, he thought
he would serve a two-year term of re-confinement under 730 ILL. COMP. STAT. § 5/3-3-9,
then be released free and clear of any MSR terms.
On March 26, 2016, Ortega wrote a letter to Defendant Craig Findley, chairman of

the PRB, requesting that his MSR be “revoked” because he no longer wished to be eligible
for release onto parole (Id. at ¶ 45). On September 7, 2016, the PRB declared that Ortega
had violated Condition #5 of his MSR and ordered him re-confined for a period of two
years, beginning August 5, 2015 (Id. at ¶ 53).
Ortega then asserts that on August 5, 2017, he expected to be released from prison

since he had completed his two-year confinement period (Id. at ¶¶ 62, 66). Ortega tried
to explain that his MSR had been “revoked” when it was declared that he had violated
Condition #5, and he only had to serve two years of confinement (Id. at ¶ 66). Warden
Rains explained to Ortega that the reason he was not released was because he failed to
provide a suitable host site to continue his MSR (Id. at ¶ 73).

Ortega’s lawsuit appears to be premised on a misunderstanding of the word
“revoked” as it applies to MSR. To have one’s MSR revoked means that the privilege of
being released from prison under supervision is taken away. In other words, the offender
must return to prison. It does not mean that the sentence of MSR is removed from the
person’s judgment or that the person is be released free and clear of any MSR terms once
his re-incarceration is complete.

Ortega’s misunderstanding of the law is apparent in his prayer for relief. In
addition to compensatory and punitive damages, Ortega seeks an injunction ordering the
IDOC to “conduct a review of all cases of inmates who have been convicted of a sex-
related crime[] and credit confinement if still on or going on mandatory supervised
release or parole as stated under 730 ILCS 5/3-3-9.” He also asks the Court to order these
offenders be released upon completion of the two-year period of re-confinement and to

consider the offenders’ obligations to the IDOC and the PRB to be fulfilled.
At the time the Court performed its merits review of the Amended Complaint
pursuant to 28 U.S.C. § 1915A, the Court noted that Ortega’s claims did not appear to be
barred by the doctrine announced in Heck v. Humphrey, 512 U.S. 477 (1994), because it
appeared he was challenging the procedures used by Defendants. Further review,

however, indicates that the relief Ortega sought by filing the Amended Complaint was
actually release from prison free and clear of any MSR terms. Even if categorized as a
challenge to the procedures applied by Defendants, the relief ultimately sought would
imply the invalidity of his MSR term of 3 years to life. See Edwards v. Balisok, 520 U.S. 641,
645 (1997) (holding that a challenge to a procedural defect can still imply the invalidity

of a judgment and, therefore, would be barred by Heck). Thus, the Court grants
Defendant’s motion for summary judgment as to Counts II and III on the grounds that
Ortega’s claims are barred by Heck v. Humphrey.
CONCLUSION
For these reasons, Ortega’s Motions for Preliminary Injunction (Docs. 19, 87, 101)
are DENIED. Ortega’s claim in Count 1 is DISMISSED with prejudice because it is moot.
Furthermore, the Motion for Summary Judgment filed by Defendants John Baldwin,
Connie Halliday, Britni Huddleston, Roger Moss, Craig Findley, and David Rains
(Doc. 76) is GRANTED as to Counts II and II.
Plaintiff Aldo Ortega shall recover nothing, and the Clerk of Court is DIRECTED
to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: November 21, 2019

NANCY J. ROSENSTENGEL |
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151244. Public record. Not legal advice.