Ortega v. Halliday

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ALDO ORTEGA, )

)

Plaintiff, )

vs. ) Case No.20-cv-036-NJR

)

CONNIE HALLIDAY, )

TANYA FORD, )

ANN LAHR, )

DAVID RAINS, )

JOSEPH BLAHA, )

ENATE AKPORE, )

JOSEPH PATE, )

APRIL WAMPLER, )

MICHELLE NEESE, )

ERNEST W. VANZANT II, )

RYAN ERICKSON, )

and MICKEY WALTON, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL,Chief Judge:

Plaintiff Aldo Ortega is a former inmate of the Illinois Department of Corrections

(“IDOC”) who was placed on Mandatory Supervised Release (“MSR”)1 on August 19, 2019.

(Doc.1, p. 2). On January 9, 2020, he filed the instant civil rights lawsuit pursuant to 42 U.S.C.

§1983. (Doc. 1). He claims that Defendants, all IDOC officials, violated his constitutional rights

and Illinois law by refusing to approve his proposed MSR residential placement and/or failing to

assist him in finding an alternative placement. As a result, Plaintiff remained in prison for four

years during whichhe asserts he was eligible to be released on MSR. He seeks monetary damages

for that excessive incarceration. (Doc. 1, p. 21).

1The terms“parole”and “MSR” are usedinterchangeablyin the Complaint and in this Order as they relate

to Plaintiff’s status. See People v. Lee, 979 N.E.2d 992, 1000-01 (Ill. App. Ct. 4th Dist. 2012) (describing

distinction between “parole” and “MSR”).

This case is now before the Court for a preliminary merits review of the Complaint pursuant

to 28 U.S.C. §1915(e)(2)(B).2 Under 28 U.S.C. §1915(a)(1), an indigent party may file and

proceed with a lawsuit without pre-payment of the filing fee. However, a court can deny an

indigent plaintiff leave to proceed in forma pauperis (“IFP”) or can dismiss a case if the action is

clearly frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

money damages from an immune defendant. 28 U.S.C. §1915(e)(2)(B). This section compels

dismissal of the action if the Court finds that one of thesecriteria applies:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shalldismiss the case at any time if the court determines that . . .(B)the action

or appeal—

(i)is frivolous or malicious;

(ii)fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such

relief.

28 U.S.C. §1915(e)(2)(B) (emphasis added).

The test for determining if an action is frivolous or without merit is whether the plaintiff

can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490

U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to

state a claimif it does not plead “enough facts to state a claimto relief that is plausible on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Courtpreviously granted Plaintiff’s IFP motion (Doc. 15) as hisaffidavits(Docs. 2 &

6)demonstratehe is indigent. However, the Court did not conduct amerits review of the Complaint

at that time.

2The Court inadvertently indicated that merits screening would take place under 28 U.S.C. §1915A. (Docs.

10, 11, 14). Section 1915A applies only to an incarcerated plaintiff, not to a former prisoner who filed the

Complaint after being released. 28 U.S.C. §1915A(c).

THE COMPLAINT

Plaintiff makes the following allegations in his Complaint: He is a convicted sex offender

who was initially released on MSR on December 16, 2013, and he was approved to live at his

parents’residence in Melrose Park, Illinois.(Doc. 1, pp. 2, 8).His term of MSR isfrom 3 years to

life. (Doc. 1, p. 10). On August 5, 2015, he was taken back into custody by parole agent Joseph

Blaha, pursuant to a warrant for an alleged violation of his MSR conditions.3 (Doc 1, pp. 2, 8).

Blaha requested that Plaintiff’s parents’ home where the alleged violation occurred be “deemed

unsuitable” for Plaintiff to serve the remainder of his MSR term,thus Plaintiff remained in IDOC

custody until August 19, 2019. (Doc. 1, pp. 2, 17-18). On that date, Plaintiff was re-released on

MSR, to again reside at his parents’ home which had previously been rejectedas a host site.4 Id.

Enate Akpore, of the sex offender supervising unit, issued the parole violation warrant in

August 2015 at the request of Blaha. (Doc. 1, pp. 8-9, 18). The violation report alleged that Plaintiff

had violated conditions #15 and 16 of his MSR, which involved possession of alcohol, smart

phones, computer, and sexually explicit material, and failure to comply with sex offender

counseling, computer/internet restrictions, andGPS monitoring.

Plaintiff remained in custody at the Big Muddy River Correctional Center (“BMRCC”),

where a parole revocation hearing was held in September 2015 and rescheduled for March 2016.

(Doc. 1, pp. 9-10). Plaintiff met with a member of the Prisoner Review Board (“PRB”) on March

15, 2016. He requested to be declared in violation of MSR, but this was refused,and the revocation

3 Plaintiff filed two lawsuits in the Northern District of Illinois seeking relief related to the August 2015

search of his home that led to his reincarceration and the PRB’s decision to revoke his MSR. Ortega, et al.

v. Blaha,et al., Case No. 17-cv-5610 (N.D. Ill. dismissed Nov. 9, 2017); and Ortega, et al. v. Treppins,et

al., Case No. 18-cv-5569 (N.D. Ill. dismissed Nov. 7, 2018). The first was dismissed for failure to state a

claim upon which relief may be granted, and the second was dismissed on res judicata and timeliness

grounds. Blaha and Akpore were defendants in both suits.

4 At some point, Plaintiff became an “inherited owner” of his parents’ home. (Doc. 1, p. 8). His father is

now deceased, andhis mother is still living. (Doc. 6, p. 4).

hearing was continued for another sixmonths. (Doc. 1, p. 10). Ernest W. Vanzant, a records office

supervisor at BMRCC, issued a memorandum directing that because Plaintiff was on 3-to-life

MSR, the PRB should not find him in violation but should instead continue his revocation hearing

so that BMRCC field services staff could assist Plaintiff in finding suitable housing; Plaintiff

identifies this memo as the reason he remained in prison.5 (Doc. 1, pp. 10, 14-15). The PRB

member then noted Plaintiff was in violation of condition #5 (not having a suitable host site).

Plaintiff claims,however, thathis original host site had not been declared ineligible and continued

to be approved by IDOC. (Doc. 1, p. 10). Connie Halliday, BMRCC field service representative,

attended the hearing on March 15, 2016, and assured the PRB member and Plaintiff she would

assist him to find housing to continue his MSR. Id.

Immediately after the PRB hearing, Plaintiff submitted a request to Halliday for approval

of his parents’ address as a host site. Halliday rejected that site and refused to submit it into the

Offender Tracking System (“OTS”). (Doc. 1, pp. 11, 15). She told him to propose another one,

otherwise he would have to go back to the PRB every six months for as long as they chose. (Doc.

1, p. 11).

Between March 15, 2016, and March 29, 2016, Plaintiff tried without success to obtain a

copy of the March 15, 2016 PRB order and Vanzant’s memorandum. On August 10, 2016, Plaintiff

was transferred to Robinson Correctional Center (“Robinson”). On September 7, 2016, a PRB

5 While he was still in prison, Plaintiff previously filed suit in this District against some of the same

Defendants named in this casebased on the same factual scenario. Ortega v. Halliday,et al., Case No. 17-

cv-1091-NJR. Several defendants, including Ann Lahr, April Wampler, Ernest W. Vanzant, and Ryan

Erickson, were dismissed from the action without prejudice upon initial screening. (Doc. 18,Case No. 17-

1091). On November 21, 2019, this Court granted summary judgment to the remaining defendants

(including Connie Halliday and David Rains) on Plaintiff’s Fourteenth and Eighth Amendment claims

(Counts II and III in that case), concluding the claims were barred by Heck v. Humphrey, 512 U.S. 477

(1994). (Doc. 127, Case No. 17-1091).

member declared Plaintiff a violator (as of August 5, 2015) for not having an approved host site.6

(Doc. 1, p. 11). Tanya Ford (corrections counselor & field service representative at Robinson)

refused Plaintiff’s proposed host site and did not enter it into the OTS. (Doc. 1, p. 16). On March

8, 2017, Plaintiff’s proposed MSR host site (his parents’ home) was “denied by field services” and

he filed a grievance at Robinson. (Doc. 1, p. 12). Mickey Walton (Robinson grievance officer)

responded to the grievance. (Doc. 1, pp. 12, 19). Ryan Erickson (Robinson Clinical Services

Supervisor) informed Plaintiff that he spoke with an unknown supervising agent who refused to

allow Plaintiff to be re-released to his parents’ address. Erickson obtained and gave Plaintiff a copy

of Blaha’s original August 2015 violation report, which included Blaha’s request not to allow

Plaintiff to return to that address. Id.

Plaintiff claims he became eligible for re-release on August 4, 2017; he filed another

grievance and “several request slips” to Warden David Rains and other Robinson officials because

he remained confined. (Doc. 1, p. 13). On August 7, 2017, Plaintiff was served with a notice of

alleged violations of his MSR conditions issued by Joseph Pate (IDOC parole field agent) and a

warrant issued by Akpore at Pate’s request. (Doc. 1, pp. 13, 18-19). April Wampler (Robinson

casework supervisor) recommended to Rains that Plaintiff’s grievance be denied. (Doc. 1, pp. 13,

19). Erickson and Walton also failed to promptly address the grievances or to resolve them in

Plaintiff’s favor, and Michelle Neese (Robinson Warden of Programs and Services) acquiesced in

their handling of the grievances. (Doc. 1, pp. 19-20).

Plaintiff met with Rains over his grievance, but Rains refused to investigate the issue,

denied the grievances, and delayed Plaintiff’s MSR release. (Doc. 1, pp. 13-14, 17). Rains“g[a]ve

6In his Complaint in Case No. 17-cv-1091-NJR, Plaintiff alleged that the PRB official who conducted the

September 7, 2016, hearing decided that Plaintiff should be re-confined for a 2-year period as a result of

the violation. (Doc. 18, p. 6 in Case No. 17-1091).

authority to the IDOC and its agents to investigate a proposed host site and not the PRB.” (Doc. 1,

pp. 13-14). Plaintiff claims that as of September 2015, the PRB had ordered him to be released

“promptly” on MSR andto his parents’ residence. (Doc. 1, p. 14).

Ann Lahr (Administrative Review Board member) denied Plaintiff’s grievance over the

denial of his proposed host site. (Doc. 1, p. 16).

Plaintiff sues each Defendant in his or her individual capacity only. (Doc. 1, pp. 3-7).

PRELIMINARY DISMISSALS

Plaintiff raises a number of legal claims against Defendants Walton, Wampler, Neese, and

Lahr. But the only conduct Plaintiff complains of was these parties’ involvement in responding to

the grievances he filed to contest decisions made by other officials. (Doc. 1, pp. 12-13, 16, 19-20).

In order to be held individually 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)). The alleged mishandling

of grievances “by persons who otherwise did not cause or participate in the underlying conduct

states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Under this authority, these

Defendants, who merely responded to Plaintiff’s grievances, were not “personally involved” in the

allegedly unconstitutional rejections of Plaintiff’s proposed MSR host site and refusals to release

him from prison. Accordingly, Defendants Lahr,Wampler, Neese, and Waltonshall bedismissed

from the action without prejudice because Plaintiff has failed to state a claim against them upon

which relief may be granted.

Defendant Erickson likewise had a role in addressing Plaintiff’s grievances. Plaintiff

additionally states that Erickson provided Plaintiff with documentation regarding Blaha’s

opposition to his proposed MSR site. (Doc. 1, pp. 12, 19). That action did not violate Plaintiff’s

constitutional rights, but instead would seem to have helped him pursue his claims against Blaha.

Plaintiff fails to state a claim against Defendant Erickson upon which relief may be granted, thus

he shall also be dismissed without prejudice.

Plaintiff’s claims against Halliday and Rains are barred by the doctrine of res judicata

(claim preclusion). He sued both these individuals in Ortega v. Halliday, et al., Case No. 17-cv-

1091-NJR, and his claims in that lawsuit were based on Halliday’s and Rains’ conduct that

occurred in March 2016 (Halliday) and August 2017 (Rains). (Doc. 18, pp. 4-5, 7-8, in No. 17-

1091). On November 21, 2019, this Court concluded that Plaintiff’s Fourteenth and Eighth

Amendment claims (Counts II and III in that case) were barred by Heck v. Humphrey, 512 U.S.

477 (1994),because Plaintiff was seekingto terminate the MSR portion of his sentence.This Court

granted summary judgment in No. 17-1091 to Halliday and Rains, and the action was dismissed

with prejudice. (Docs. 127& 128,inNo. 17-1091).

Res judicata prevents a party from attempting to relitigate a claim that was previously

decided on its merits in a final judgment. This doctrine applies when there is: “(1) an identity of

parties; (2) a final judgment on the merits; and (3) an identity of the cause of action (as determined

by comparing the suits’ operative facts).” Palka v. City of Chicago, 662 F.3d 428, 437 (7th Cir.

2011). All three factors are met here. A comparison of the operative facts in the current Complaint

with those in No. 17-1091 reveals that Plaintiff is suing Halliday once again for her conduct that

occurred in March 2016 at BMRCC, and suing Rains over his actions and omissions at Robinson

in August 2017 –the identical factual allegations that formed the basis for Plaintiff’s first lawsuit

in this Court. “Two claims are one for the purposes of res judicata if they are based on the same,

or nearly the same, factual allegations.” Bell v. Taylor, 827 F.3d 699, 707 (7th Cir. 2016)(quoting

Czarniecki v. City of Chicago, 633 F.3d 545, 550 (7th Cir. 2011)). To be sure, Plaintiff is seeking

different relief in the instant action, and raises some legal claims that he did not assert in the earlier

suit. However, res judicata “prohibits relitigation not only of claims already decided in a prior

proceeding, but also those that could have been litigated in that proceeding based on the same

operative facts.”McDonald v. Adamson, 840 F.3d 343, 346 (7th Cir. 2016)(citing Palka, 662 F.3d

at437).Plaintiff raised his Eighth and Fourteenth Amendment claims against Halliday and Rains,

based on the same operative facts, in the earlier proceeding. He could have raised his additional

claims based on Illinois law in that case as well. Halliday and Rains shall therefore be dismissed

from this action with prejudice.

DISCUSSION

Based on the allegations in the Complaint, the Court designates the following claims in

this pro seactionagainst the remaining Defendants (SeeDoc. 1, pp. 14-20):

Count 1: Ford, Blaha, Akpore, Pate, and Vanzant subjected Plaintiff to cruel

and unusual punishment in violation of the Eighth Amendment by

their actions or omissions that resulted in the continuation of his

IDOC confinement and denial of release on MSR while he had an

approved host site at his parents’ home, which subjected Plaintiffto

four years of additional incarceration.

Count 2: Ford, Blaha, Akpore, Pate, and Vanzant violated Plaintiff’s right to

substantive due process under the Fourteenth Amendment by their

actions or omissions that resulted in the rejection of his proposed

MSR host site, denial of release on MSR to his parents’ home,

and/orfailureto investigate alternative MSR host sites.

Count 3: Ford,Blaha,Akpore,and Pateviolated Plaintiff’s right toprocedural

due process under the Fourteenth Amendment by their actions or

omissions that resulted in the rejection of his proposed MSR host

site, denial of release on MSR to his parents’ home, and/or failure

to investigate alternative MSR host sites.

Count 4: Akpore and Pate violated Plaintiff’s right to equal protection under

the Fourteenth Amendment by their actions or omissions that

resulted in the rejection of his proposed MSR host siteanddenial of

release on MSR to his parents’ home.

Count 5: Ford, Blaha, Pate, and Vanzant violated Plaintiff’s due process

and/or equal protectionrights under the Illinois Constitution, Article

1, sec. 2, and his right to remedy and justice under Article 1, sec. 12,

by their actions or omissions that prevented his release on MSR to

his parents’ home.

Count 6: Akpore and Pate violated the warrant clause of the Fourth

Amendment by issuing or requesting an MSR violation warrant for

Plaintiff on or about August 4, 2017, even though Plaintiff was in

custody at Robinson.

Count 7: Pate violated the warrant clause of the Illinois Constitution, Article

1, sec. 6, by requesting issuance of a warrant for Plaintiff on or about

August 4, 2017, even though Plaintiff was in custody at Robinson.

Count 8: Ford, Blaha, Akpore, Pate, and Vanzant’s actions or inactions

violated Illinois state law(s) including assault, false imprisonment,

and/or conspiracy.

The parties and the Court will use these designations in all future pleadings and orders, unless

otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice

as inadequately pled under the Twomblypleading standard.7

Count 1

Plaintiff’s allegation that he was incarcerated for longer than he should have been because

of Defendants’deliberate indifference states anEighth Amendmentclaim that cannot be dismissed

at this juncture. See Childress v. Walker, 787 F.3d 438, 439 (2015) (citations omitted)

(“incarcerating a person beyond the term of his sentence without penologicaljustification violates

the Eighth Amendment as cruel and unusual punishment.”));see alsoArmato v. Grounds, 766 F.3d

713, 721 (7th Cir. 2014); Campbell v. Peters, 256 F.3d 695, 700(7th Cir. 2001).

Plaintiff’s previous lawsuits against Blaha and Akpore in the Northern District of Illinois

7See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim that is plausible on its face.”).

raised claims based on Blaha’s August 5, 2015 search of Plaintiff’s residence; Akpore authorized

Blaha to take Plaintiff into custody based on the results of that search. Ortega, et al., v. Blaha, et

al., Case No. 17-cv-5610 (N.D. Ill. Doc. 20). Here, Plaintiff’s claims against Blaha and Akpore

focus on their actions that prevented Plaintiff from being re-released on MSR to his parents’ home.

At this stage, the Court cannot conclude that the doctrine of res judicata would clearly bar the

claims Plaintiff raises herein against Blaha and Akpore, because the operative facts underlying his

claims appear to have arisen after the August 5, 2015 search. See McDonald, 840 F.3d at 346.

Plaintiff’s claims against Blaha and Akpore will not be dismissed at this stage.

Plaintiff may proceed on Count 1 against Defendants Ford, Blaha, Akpore, Pate, and

Vanzant.

Counts 2through 8

The allegations in the Complaint are sufficient, at this stage, for Plaintiff to proceed on

theseclaims against the associated Defendants who remain in this action.

DISPOSITION

IT IS HEREBY ORDERED that DEFENDANTS CONNIE HALLIDAY and DAVID

RAINS are DISMISSED from this actionwith prejudice.

IT IS FURTHERORDERED thatDEFENDANTS ANN LAHR, APRIL WAMPLER,

MICHELLE NEESE, RYAN ERICKSON, and MICKEY WALTON are DISMISSED from

this action without prejudice.

IT IS FURTHER ORDERED that COUNTS 1-8 against DEFENDANTS TANYA

FORD, JOSEPH BLAHA, ENATE AKPORE, JOSEPH PATE, and ERNEST W.

VANZANT II survive preliminary review pursuant to 28 U.S.C. §1915(e)(2)(B) and shall

proceed in the instant case.

The Clerk of Court shall prepare for Defendants FORD,BLAHA, AKPORE, PATE,and

VANZANT: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and

(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a

copy of the Complaint, and this Memorandum and Order toeachDefendant’splace of employment

as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons

(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take

appropriate steps to effect formal service on the Defendant, and the Court will require the

Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of

Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the employer

shall furnish the Clerk with the Defendant’s current work address, or, if not known, the

Defendant’s last-known address. This information shall be used only for sending the forms as

directed above or for formally effecting service. Any documentation of the address shall be

retained only by the Clerk and shall not be maintained in the court file or disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendants need only respond to the issues stated in this

Merit Review Order.

Plaintiff is ADVISEDthat if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. §1915, he will be required to pay the full amount of the

costs, even though his application to proceed in forma pauperis was granted. See 28 U.S.C.

§1915(f)(2)(A).

Plaintiff is further ADVISEDthat he is under a continuing obligation to keep the Clerkof

Court and the opposing parties informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a change in address occurs. Failure to comply with this order will cause a delay in the

transmission of court documents and may result in dismissal of this action for want of prosecution.

See FED. R. Civ. P. 41(b).

IT IS SO ORDERED.

DATED: November 12, 2020 TN g G2

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

NOTICE TO PLAINTIFF

The Court will take the necessary steps to notify the Defendants of your lawsuit and serve

them with a copy of your Complaint. After service has been achieved, Defendants will enter an

appearance and file an Answer to your Complaint. It will likely take at least 60 days from the date

of this Order to receive the Defendants’ Answer, but it is entirely possible that it will take 90 days

or more. When Defendants have filed their Answers, the Court will enter a Scheduling Order

containing important information on deadlines, discovery, and procedures. Plaintiff is advised to

wait until counsel has appeared for Defendants before filing any motions, to give the Defendants

notice and an opportunity to respond to those motions. Motions filed before Defendants’ counsel

has filed an appearance will generally be denied as premature. Plaintiff need not submit any

evidence to the Court at this time, unless specifically directed to do so.

12