Nathaniel Brown v. Michael Randle

In the

United States Court of Appeals

For the Seventh Circuit

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No. 14-2480

NATHANIEL BROWN,

Plaintiff-Appellant,

v.

MICHAEL RANDLE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 11 C 50193 — Frederick J. Kapala, Judge.

____________________

ARGUED OCTOBER 26, 2016 — DECIDED FEBRUARY 7, 2017

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Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judg-

es.

EASTERBROOK, Circuit Judge. In 1994 Nathaniel Brown was

convicted of four sex offenses and sentenced to prison in Il-

linois. His projected release date was July 10, 2009, after

which his sentence required him to serve three years of

“mandatory supervised release,” a status that officials in Il-

linois often call parole.

2 No. 14-2480

When July 10 arrived, however, the Illinois Department

of Corrections did not release Brown. Instead it issued a “Pa-

role Violation Report” reciting that Brown had committed

two anticipatory violations of the terms of supervised re-

lease. First, he had refused to accept electronic monitoring

that is required of sex offenders; second, he lacked a place

where he could lawfully reside outside the prison’s walls.

(Like many other states, Illinois limits the locations where

sex offenders can make their homes.) The problems are re-

lated. Illinois tries to find lawful accommodations for sex of-

fenders who promise to wear electronic monitoring devices,

but because Brown rejected the device the prison system did

not try to help him find a place to live.

Brown seeks damages for the delay in releasing him, yet

he does not contend that either the electronic-monitoring or

the residential-location condition of release is invalid. We

have held that one is proper, and the Eighth Circuit has sus-

tained the other. See Belleau v. Wall, 811 F.3d 929 (7th Cir.

2016) (state may require a sex offender to wear a GPS ankle

bracelet as a condition of release); Weems v. Little Rock Police

Department, 453 F.3d 1010 (8th Cir. 2006) (residential-location

limits for sex offenders are valid); Doe v. Miller, 405 F.3d 700

(8th Cir. 2005) (same). Cf. Doe v. Lafayette, 377 F.3d 757 (7th

Cir. 2004) (en banc) (states may prevent sex offenders from

visiting places where children congregate). Nonetheless

Brown contends that he was entitled to immediate release

without regard to those conditions. Perhaps the state could

have picked him up later and revoked his release, he allows,

but first it had to discharge him. He contends that his con-

finement violated both the Fourth Amendment, applied to

the states through the Fourteenth Amendment, and the Due

Process Clause of that amendment.

No. 14-2480 3

One part of Illinois’ government thinks that he should

have been let out in July 2009. The Prisoner Review Board

held a hearing in October 2009 and determined that Brown

had not violated the conditions of his release. Apparently it

believes that an anticipatory violation should be distin-

guished from a completed violation, though it did not ex-

plain its reasoning. On the same day the Board made this

decision, an employee of the Department of Corrections is-

sued a second Parole Violation Report, giving the same two

reasons as before. That step was authorized by 20 Ill. Admin.

Code §1610.110(a), which says that even a formal order for

release on parole “shall not be effective” until the prisoner

has an approved residence. The Board then washed its

hands of the matter, having earlier told the Department that

it would not re-review situations in which the Department

disagreed with its decisions. Brown remained in prison until

January 11, 2011, when he was released unconditionally. (Il-

linois gives day-for-day good-time credit, so 18 months in

prison was deemed to discharge a sentence of three years’

supervised release.)

One of Brown’s themes is that Illinois did not offer him a

hearing before it issued either the first or the second viola-

tion report. No one doubts that, if he had been released, the

Constitution would have required notice and an opportunity

for a hearing before he could be returned to prison. See Mor-

rissey v. Brewer, 408 U.S. 471 (1972). But the Supreme Court

has limited Morrissey by holding that a state may rescind pa-

role, without a hearing, if it acts before a person reaches the

outside of the prison. See Jago v. Van Curen, 454 U.S. 14

(1981). That’s what happened to Brown.

4 No. 14-2480

No matter how the Due Process calculus may come out,

Brown insists, he had a right under the Fourth Amendment

to release as soon as his prison sentence ended. Yet as of

2009, when he was kept in prison, no court had held that the

Fourth Amendment entitles a sex offender to release even

though it appears likely that, as soon as he steps outside the

prison’s front door, he will be in violation of the terms of re-

lease. Indeed, no federal court has so held to this day. Under

the circumstances, therefore, the defendants are entitled to

qualified immunity from damages. And so we concluded

with respect to Wisconsin’s system of keeping sex offenders

in prison until they have a lawful post-prison residence. See

Werner v. Wall, 836 F.3d 751 (7th Cir. 2016).

In a supplemental brief filed after argument, Brown asks

us to put Werner to one side because Illinois and Wisconsin

do not use identical systems, and he emphasized the Fourth

Amendment while Werner relied principally on the Eighth

Amendment. These distinctions are true but beside the

point. The core conclusion of Werner is that the federal judi-

ciary has not clearly established that sex offenders who lack

a lawful place to live must nonetheless be released from

prison. That conclusion does not depend on the particulars

of the state systems or the constitutional provision a given

plaintiff emphasizes.

Brown does not identify any decision of a federal court

establishing that sex offenders without approved living ar-

rangements must be released. Instead he states the constitu-

tional rule at a high level of generality (the Fourth Amend-

ment forbids unreasonable seizures) and contends that this

suffices. No, it doesn’t. As the Justices reiterated earlier this

month:

No. 14-2480 5

“clearly established law” should not be defined “at a high level

of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). As this

Court explained decades ago, the clearly established law must be

“particularized” to the facts of the case. Anderson v. Creighton,

483 U.S. 635, 640 (1987). Otherwise, “[p]laintiffs would be able to

convert the rule of qualified immunity … into a rule of virtually

unqualified liability simply by alleging violation of extremely

abstract rights.” Id., at 639.

White v. Pauly, No. 16–67 (U.S. Jan. 9, 2017), slip op. 7. Feder-

al courts have not particularized the sort of right Brown as-

serts, so the defendants are entitled to immunity from liabil-

ity in damages.

But wait!, Brown cries. Even if it is not clearly established

that the Constitution requires immediate release of sex of-

fenders who lack lawful living plans, it must be clearly es-

tablished that inmates who have such plans are entitled to

their freedom. Perhaps so, but Brown has not shown either

that he had lawful living plans or that he had consented to

electronic monitoring. His complaint does not contain such

an allegation; he did not proffer an affidavit to that effect; his

brief does not ask for an opportunity to prove it. Instead of

contending that he had consented to monitoring and had a

lawful place to live, Brown insists that the Prison Review

Board must have found those matters in his favor.

There are two problems. First, the Board did not say any

such thing. All it said is that Brown had not violated the

conditions of his release. We take this as restating the Board’s

oft-expressed view that the Department of Corrections

should follow a release-and-revoke model, rather than re-

taining custody of prisoners during their supervised-release

periods. If the Board meant something different (or some-

thing extra) in Brown’s case, it did not say so.

6 No. 14-2480

Second, no rule of federal law requires every state official

to accept, without question, any determination made by

some other state official. Whether the Board’s decision binds

the Department of Corrections is a matter of state rather than

federal law. Cf. Castle Rock v. Gonzales, 545 U.S. 748 (2005).

Perhaps 20 Ill. Admin. Code §1610.110(a) is invalid as a mat-

ter of Illinois law. Brown could have pursued such a theory

in state court. But 42 U.S.C. §1983 does not authorize federal

courts to order state officials to pay damages for violations

of state law; remedies in §1983 suits are for violations of fed-

eral law only.

Brown has a further claim for relief that is unrelated to

his status as a sex offender. He contends that state employ-

ees violated the Eighth Amendment by withholding care for

a serious medical condition. See generally Petties v. Carter,

836 F.3d 722 (7th Cir. 2016) (en banc) (standards for medical-

care claims under the Eighth Amendment). There’s no doubt

that he has grave coronary problems; there is also no doubt

that he has received intensive care for them. He had a heart

attack in March 2007 and was sent to a hospital. A recurrence

in April led to another trip to the hospital, followed by a

transfer to a university health center for triple bypass sur-

gery. Another heart attack in April 2008 led to his return to

the university’s health center for placement of a stent, and he

had received a second stent in May 2010 to relieve a coro-

nary blockage. Since his release from prison in January 2011,

he has had two additional stents inserted to deal with

blocked arteries.

In this court, Brown contests two aspects of his medical

care: a delay between July 2009 and May 2010 in returning

him to the university center for diagnosis and treatment, and

No. 14-2480 7

a six-week period in May and June 2010 that he spent in the

prison’s general population rather than its health-care unit.

He wants to recover damages from Nedra Chandler, who

was the Warden of Dixon Correctional Center in 2009 and

2010. He does not seek damages from anyone else, such as

the prison physician who determined that Brown did not

need hospital care between July 2009 and May 2010.

Brown does not contend that Chandler had anything to

do with the timing of his visits to the university health cen-

ter, so she cannot be liable. Public officials are accountable

for their own conduct, but they are not vicariously liable for

the acts of their subordinates. See, e.g., Iqbal v. Ashcroft, 556

U.S. 662, 677 (2009); Vance v. Rumsfeld, 701 F.3d 193, 203–05

(7th Cir. 2012) (en banc). Brown alleges that in March 2007

Chandler called him a faker and that this supports an infer-

ence that she was responsible for keeping him away from the

hospital between July 2009 and May 2010. That’s a non-

sequitur. The comment that Brown attributed to Chandler

occurred before his repeated hospitalizations for heart prob-

lems. By the middle of 2009, after Brown had triple-bypass

surgery and yet another heart attack following that surgery,

no one could have doubted that his condition was real. No

reasonable trier of fact could conclude that something Chan-

dler may have said in March 2007 controlled medical deci-

sions that the prison’s physicians made in 2009 or 2010.

Brown maintains that Chandler personally made the de-

cision to house him in the general population during May

and June 2010, so she could be liable under the standards of

Petties. This aspect of Brown’s claim fails because he has not

shown harm. Indeed, he has not even alleged harm. He says

that he would have been more comfortable in the health-care

8 No. 14-2480

unit and could have received faster treatment if he had an-

other heart attack, but he does not allege that heart problems

did recur during those six weeks. The Eighth Amendment

prevents prison personnel from being deliberately indiffer-

ent to serious medical needs, see Farmer v. Brennan, 511 U.S.

825 (1994), but it does not oblige those officials to maximize

the comfort of inmates who have medical challenges such as

heart disease.

AFFIRMED