Nathaniel Brown v. Michael Randle, et al
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Joel M. Flaum, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Ann Claire Williams, Circuit Judge. [6816889-1]  [14-2480]
United States Court of Appeals
For the Seventh Circuit
MICHAEL RANDLE, et al.,
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
Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. In 1994 Nathaniel Brown was
convicted of four sex offenses and sentenced to prison in Illinois. 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 Illinois often call parole.
When July 10 arrived, however, the Illinois Department
of Corrections did not release Brown. Instead it issued a “Parole Violation Report” reciting that Brown had committed
two anticipatory violations of the terms of supervised release. 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 related. Illinois tries to find lawful accommodations for sex offenders 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 sustained 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 confinement violated both the Fourth Amendment, applied to
the states through the Fourteenth Amendment, and the Due
Process Clause of that amendment.
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 distinguished from a completed violation, though it did not explain its reasoning. On the same day the Board made this
decision, an employee of the Department of Corrections issued 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. (Illinois gives day-for-day good-time credit, so 18 months in
prison was deemed to discharge a sentence of three years’
One of Brown’s themes is that Illinois did not offer him a
hearing before it issued either the first or the second violation 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 Morrissey v. Brewer, 408 U.S. 471 (1972). But the Supreme Court
has limited Morrissey by holding that a state may rescind parole, 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.
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 release. 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 judiciary 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
Brown does not identify any decision of a federal court
establishing that sex offenders without approved living arrangements must be released. Instead he states the constitutional rule at a high level of generality (the Fourth Amendment forbids unreasonable seizures) and contends that this
suffices. No, it doesn’t. As the Justices reiterated earlier this
“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. Federal courts have not particularized the sort of right Brown asserts, so the defendants are entitled to immunity from liability in damages.
But wait!, Brown cries. Even if it is not clearly established
that the Constitution requires immediate release of sex offenders who lack lawful living plans, it must be clearly established 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 retaining custody of prisoners during their supervised-release
periods. If the Board meant something different (or something extra) in Brown’s case, it did not say so.
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 matter 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 federal law only.
Brown has a further claim for relief that is unrelated to
his status as a sex offender. He contends that state employees 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 medicalcare 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 surgery. 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 coronary blockage. Since his release from prison in January 2011,
he has had two additional stents inserted to deal with
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
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 center, 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 inference that she was responsible for keeping him away from the
hospital between July 2009 and May 2010. That’s a nonsequitur. The comment that Brown attributed to Chandler
occurred before his repeated hospitalizations for heart problems. 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 Chandler may have said in March 2007 controlled medical decisions that the prison’s physicians made in 2009 or 2010.
Brown maintains that Chandler personally made the decision 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
unit and could have received faster treatment if he had another 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 indifferent 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
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