Lazos v. Jeffreys

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ALONSO LAZOS,

Plaintiff,

v. Case No. 21-cv-116-NJR

ROB JEFFREYS, MICHAEL TURNER,

MAX NANCE, TOBY OLIVER, SARAH

JOHNSON, JOHN BARWICK, and

MATTHEW SWALLS,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

On August 12, 2022, Alonso Lazos filed his Amended Complaint asserting claims

pursuant to 42 U.S.C. § 1983 for various violations of his constitutional rights while he

was part of the Illinois Department of Corrections’ (“IDOC”) Impact Incarceration

Program (“IIP”) from 2019 to 2020.

This matter is currently before the Court on a partial motion to dismiss (Doc. 58)

filed by Defendant Rob Jeffreys, Max Nance, Toby Oliver, and Michael Turner, seeking

to dismiss Counts 2 through 4 for failure to state an adequate constitutional violation.

Defendants also argue that Counts 3 and 4 are barred by Heck v. Humphrey, 512 U.S. 477

(1994). Lazos filed a response in opposition to the motion (Doc. 59). Defendants filed a

reply brief (Doc. 60). Defendants Matthew Swalls, Sarah Johnson, and John Barwick later

joined in the motion to dismiss (Doc. 63).

BACKGROUND

On February 2, 2021, Lazos filed his original Complaint alleging violations of his

constitutional rights while in IDOC’s Impact Incarceration Program (“IIP”), a six-month

boot camp program run by IDOC at Dixon Springs. His Amended Complaint (Doc. 50)

alleges four counts related to his treatment at the IIP:

Count 1: Eighth Amendment excessive force claim against Michael

Turner and Max Nance for an alleged assault which took

place in October 2019.

Count 2: Fourteenth Amendment due process claim against Rob

Jeffreys, Michael Turner, Max Nance, Toby Oliver, Sarah

Johnson, John Barwick, and Matthew Swalls for improperly

terminating Lazos from the IIP.

Count 3: False imprisonment claim against Jeffreys, Oliver, Turner,

Johnson, Barwick, Swalls, and Nance for unlawfully

terminating Lazos from the IIP resulting in additional

incarceration.

Count 4: Cruel and Unusual Punishment claim against Jeffreys, Oliver,

Turner, Johnson, Barwick, Swalls, and Nance.

(Doc. 50).

As it relates to Counts 2-4, Lazos alleges that on November 20, 2019, he was

notified of two pending disciplinary hearings for two disciplinary reports issued against

him (Id. at pp. 5-6). On November 24, 2019, Lazos participated in the first hearing (Id. at

p. 6). Oliver was the hearing officer and found that Lazos failed to comply with the IIP

program requirements (Id.). He recommended Lazos receive 14 additional days in the IIP

program. On the same day, Oliver also conducted a hearing on the second disciplinary

ticket (Id.). Lazos was found guilty of this infraction, refusing to comply with a head call

(described by defendants in the motion as use of the restroom) by sitting on the floor and

indicating that he wanted to quit. For this infraction, Oliver recommended Lazos be

terminated from the IIP. Barwick and Swalls approved the recommendation of

termination (Id.). On February 4, 2020, Jeffreys and Johnson also approved the

termination (Id.).

Lazos alleges that the infractions were based on the false statements of Turner and

Nance, the defendants he alleges used excessive force on him in October 2019 (Id. at pp. 4-

5). He filed a grievance regarding the discipline. On February 10, 2020, the grievance

officer noted that Illinois Administrative Rule 460.60 states one basis for termination from

the IIP is 12 or more demerits (Id. at p. 7). The officer noted that no demerits were found

in Lazos’s record. The officer also noted that there were no specific details as to the

derogatory remarks used by Lazos nor did staff indicate what the acts of insolence by

Lazos were or when they occurred (Id.). The grievance officer deemed the grievance

“mixed,” and the Chief Administrative Officer concurred with the findings (Id.).

LEGAL STANDARDS

When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all

allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to

state a claim, a complaint must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied

if the complaint (1) describes the claim in sufficient detail to give the defendant fair notice

of what the claim is and the grounds upon which it rests, and (2) plausibly suggests that

the plaintiff has a right to relief above a speculative level. Bell Atl., 550 U.S. at 555; see

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773,

776 (7th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads factual

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

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl., 550 U.S. at 556). “[I]t is

not enough for a complaint to avoid foreclosing possible bases for relief; it must actually

suggest that the plaintiff has a right to relief . . . by providing allegations that ‘raise a right

to relief above the speculative level.’” Concentra Health Servs., 496 F.3d at 777 (quoting Bell

Atl., 550 U.S. at 555).

ANALYSIS

A. Due Process Claims

In order for Lazos to state a procedural due process violation, he must show that

the state deprived him of a constitutionally protected interest in “life, liberty, or property”

without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). An administrative

code violation, however, does not translate into a constitutional violation upon which a

civil rights claim may rest. A federal court does not enforce state law and regulations.

Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S.

1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001).

Lazos argues that the violation of the Illinois Administrative Code, specifically the

portion of the Code setting forth when an inmate may be involuntarily terminated from

the IIP, amounted to a state-created liberty interest which entitled him to due process

protections. A state can create protected liberty interests “by placing substantive

limitations on official discretion.” Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001);

Shango v. Jurich, 681 F.2d 1091, 1099 (7th Cir. 1982) (“duly promulgated prison regulations

may give rise” to a liberty interest). But when those regulations allow for the exercise of

discretion and do not limit the decision of officials, the regulation does not create a liberty

interest. Shango, 681 F.2d at 1100. For instance, an inmate does not have a protected liberty

interest in serving his sentence at a particular prison. Id. To create a liberty interest,

“a state must employ ‘language of an unmistakably mandatory character, requiring that

certain procedures “shall,” “will,” or “must” be employed…and that [the challenged

action] will not occur absent specific substantive predicates.’” Woods v. Thieret, 903 F.2d

1080, 1082 (7th Cir. 1990) (quoting Russ v. Young, 895 F.2d 1149, 1153 (7th Cir. 1990)). “[A]

liberty interest is created only where the state regulation in question contains ‘specific

directives to the decisionmaker that if the regulations’ substantive predicates are present,

a particular outcome must follow.” Woods, 903 F.2d at 1082-83 (quoting Russ, 895 F.2d at

1153).

Section 460.60 of the Impact Incarceration Program provides that a “committed

person may be involuntarily terminated”… from the program for the following reasons:

1) The committed person is found guilty of a major rule violation in

accordance with 20 Ill. Adm. Code 504.Subpart A.

2) The committed person is determined not to meet the eligibility criteria

or requirements for Department approval as outlined in Sections 460.20

and 460.30.

3) Noncompliance with program requirements as documented by 12 or

more demerits.

20 Ill. Admin. Code 460.60(b) (emphasis added).

Prior to termination from the program, the committed person “shall be afforded a

disciplinary hearing in accordance with 20 Ill. Admin. Code 504.Subpart A or a Program

Review Hearing in accordance with Section 460.70.” 20 Ill. Admin. Code 460.60(c). Under

Section 460.70, “[a] Program Review Hearing shall be conducted when” a committed

person has been referred for possible termination from the program “for reasons other

than a major rule infraction as set forth in Section 460.60.” 20 Ill. Admin. Code 460.70(b).

Like in a normal prison disciplinary proceeding, a committed person facing termination

from the program is entitled to written notice of the hearing, the right to appear in-person

before an impartial body, the right to call witnesses and present evidence, and a written

statement of the findings and reasons for the action taken. See 20 Ill. Admin. Code

460.70(c)-(j).

Lazos admits in his brief that he does not challenge the procedure he received in

the disciplinary hearing or that he was factually innocent of the charges (Doc. 59, p. 7).

Instead, he argues that his termination was unlawful because it was not one of the three

grounds for dismissal set forth in Section 460.60(b). The language of Section 460.60(b)

does seem to limit the reasons that committed persons may be terminated from the IIP to

the three grounds stated, but within those three grounds there is ample discretion

provided to prison officials as to what constitutes grounds for termination. For instance,

one ground on which a committed person may be terminated is if it is determined that

the committed person no longer meets the eligibility criteria or requirements for

Department approval as outlined in Sections 460.20 and 460.30. 20 Ill. Admin. Code

460.60(b)(2). Section 460.30 provides the Department with ample discretion on

determining whether a committed person qualifies for program approval including:

whether the person’s participation in the program would pose a risk to safety and

security, the committed person’s disciplinary record and institutional adjustment,

“among other matters.” 20 Ill. Admin. Code 460.30(a). Thus, whether Lazos was eligible

to participate in the program was at the sole discretion of IDOC officials. See Brown v.

Wisconsin Dep’t of Corrs., 26 F. App’x 548, 549 (7th Cir. 2001). Further, the IIP Act provides

that a “committed person may be removed from the program for a violation of the terms

or conditions of the program or in the event he is for any reason unable to participate.”

730 ILCS 5/5-8-1.1(h). The Act also directs the Department to promulgate rules governing

conduct which “could result in removal from the program.” Id. The Act gives discretion

to the Department as to the rules and the conduct required for the program.

The Court finds no liberty or property interest in entering or remaining in the

program. Whether Lazos qualified for the program upon entry or while in the program

was based on the discretion of the Department and, if not successful, his term of

imprisonment was as set forth by the Court in the sentencing order. Stanley v. Litscher,

213 F.3d 340, 342 (7th Cir. 2000) (Finding plaintiff had no due process claim when there

was “no fixed set of criteria entitl[ing] anyone to admission [to the special program], and

exclusion leaves the prisoner with the normal attributes of confinement.”); Brown, 26 F.

App’x at 549 (no liberty or property interest when the department had discretion as to

whether a committed person participated in an intensive sanctions program and

“excluding him left him in an ordinary prison setting.”).

Although Lazos argues that he was subjected to continued confinement beyond

the date he would have been released if he had completed the IIP, he had no right to

participate or be released early from prison. There is no constitutional right “of a

convicted person to be conditionally released before the expiration of a valid sentence”

unless a statute or regulation created “an expectancy of release which, once created by

state law, was protectible under the Due Process Clause.” Felce v. Fielder, 974 F.2d 1484,

1490 (7th Cir. 1992) (state statute entitling inmates to mandatory release after serving two-

thirds of their sentence, so long as they had not violated any prison regulations, created

a protectible liberty interest); Taylor v. Edgar, 52 F. App’x 825, 826 (7th Cir. 2002) (“in the

absence of a state rule creating a specific entitlement, prisoners have no liberty interest in

placement”); Jones v. Skalski, 494 F. App’x 667, 670 (7th Cir. 2012) (no authority presented

demonstrated that participation in Wisconsin’s Challenge Incarceration Program gave an

inmate a protected liberty interest in early release). The Court finds that the IIP Act does

not create such an expectation of early release. Although Lazos argues that upon

successful completion of the program, his “sentence shall be reduced to time considered

served upon certification…that the offender has successfully completed the program,” he

fails to allege that this created a liberty or property interest. The Seventh Circuit, in

determining whether completion of the IIP acted to suspend the remainder of the prison

sentence, found that Illinois’s program most closely resembled a commutation or pardon.

See United States v. Gajdik, 292 F.3d 555, 558-60 (7th Cir. 2002). There is no liberty or

property interest in obtaining a pardon or commutation in Illinois. Bowens v. Quinn, 561

F.3d 671, 673 (7th Cir. 2009). Thus, nothing in the Act or regulations gave Lazos a

protected liberty or property interest in early release from incarceration. Lazos has not

alleged a deprivation of his liberty or property rights which would entitle him to due

process protections. And to the extent that he was entitled to any procedural protections,

Lazos acknowledges that he does not claim any such procedural irregularities (Doc. 59,

p. 7).

Because Lazos lacked an expectation of early release, any potential claims under

the Eighth Amendment for being held beyond his possible release date if he had

completed the program also fail. Armato v. Grounds, 766 F.3d 713, 721 (7th Cir. 2014) (In

order to demonstrate an Eighth Amendment claim, a plaintiff must allege that “the

defendants held him beyond the term of his incarceration without penological

justification, and that the prolonged detention was a result of the defendants’ deliberate

indifference.”). Although Lazos argues in his response that he was held beyond his

sentence, he was not held beyond his term of imprisonment because he served his

original term after being terminated from the IIP which was required by the Act and the

Code. See 20 Ill. Admin. Code 460.60(e) (individuals terminated from the program “shall

serve the sentence imposed by the sentencing court”); Jones, 494 F. App’x at 670 (no

deliberate indifference when the law did not confer an unambiguous right to release).

Thus, Lazos’s Eighth Amendment claims also fail.1

CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss (Doc. 58) is

GRANTED. Counts 2-4 are DISMISSED without prejudice for failure to state a claim.

1 Because the Court finds that Lazos fails to state a claim in Counts 2-4, the Court need not decide

if the claims are also barred by Heck.

Only Count 1 against Turner and Nance for excessive force remains in the case. Because

there are no further claims against Jeffreys, the Court DENIES as moot Jeffreys’s motion

for protective order (Doc. 47). Lazos only sought a deposition from Jeffreys related to his

due process and excessive incarceration claims which are now dismissed.

The parties’ joint motion to stay discovery (Doc. 65) is also DENIED as moot. The

parties are DIRECTED to meet and confer on new deadlines for the close of discovery

and dispositive motions for the remaining claim in the case. A proposed scheduling order

should be submitted to the Court (via email to NJRpd@ilsd.uscourts.gov) by April 3,

2023.

IT IS SO ORDERED.

DATED: February 22, 2023

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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