Hurst v. Martinez et al

Filing 12

MERIT REVIEW OPINION (Rule 16 Deadline 8/3/2018.). Defendant Illinois Prisoner Review Board is dismissed. This case is now in the process of service on Defendant Martinez. The Court will attempt service on Defendant Martinez by mailing a waiver of service. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 6/1/2018. (ME, ilcd)

E-FILED

Monday, 04 June, 2018 10:07:40 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOSEPH R. HURST,
Plaintiff,
v.
VIRGINIA MARTINEZ and
ILLINOIS PRISONER REVIEW
BOARD,
Defendants.

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18-CV-3041

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On March 29, 2018, this Court dismissed Plaintiff Joseph R.
Hurst’s Complaint with leave to file an amended complaint. On
April 16, 2018, Plaintiff filed an Amended Complaint.
Plaintiff’s Amended Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Amended
Complaint or dismiss claims that are not cognizable. In reviewing
the complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor and taking Plaintiff’s
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pro se status into account. Turley v. Rednour, 729 F.3d 645, 649
(7th Cir. 2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to "'state a claim for
relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d
418, 422 (7th Cir. 2013) (quoted cite omitted). After reviewing the
Amended Complaint, the Court will allow Count 3, the ex post facto
violation claim, to proceed against Defendant Virginia Martinez in
her official capacity.
The Court assumes familiarity with the Court’s first merit
review opinion (d/e 9). Plaintiff names as Defendants the Illinois
Prisoner Review Board (the Board) and Virginia Martinez, the Board
member who conducted Plaintiff’s parole hearing on September 13,
2017.
Plaintiff’s Amended Complaint contains the same three counts
contained in his initial complaint. Plaintiff brings this action
pursuant to 42 U.S.C. § 1983 and alleges that Defendants have
violated their United States Constitutional obligation to afford
Plaintiff a fair and impartial parole hearing. Plaintiff also alleges

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that the retroactive application of 730 ILCS 5/3-3-5(f),1 which
allows for multi-year continuances of parole hearings, violates the
Ex Post Facto Clause of the U.S. Constitution. Plaintiff alleges that,
following the denial of parole in November 2017, the Board set his
next hearing for three years later rather than the following year, as
would have been required if the Board applied the statute in place
when Plaintiff committed the underlying offense.
Plaintiff seeks declaratory relief and an order vacating
Plaintiff’s parole denial and the three-year continuance. Plaintiff
asks that the Court direct Defendants to permit Defendant to
appear before a full Board or those members who will decide his
parole and direct Defendant to use a risk assessment instrument
during his rehearing.
For the reasons stated in the March 29, 2018 Opinion, the
Court finds that Counts 1 and 2 fail to state a claim because
Plaintiff does not allege a liberty or property interest. See

“[I]f [the Prisoner Review Board] denies parole it shall provide for a rehearing
not less frequently than once every year, except that the Board may, after
denying parole, schedule a rehearing no later than 5 years from the date of the
parole denial, if the Board finds that it is not reasonable to expect that parole
would be granted at a hearing prior to the scheduled rehearing date.” 730
ILCS 5/3-3-5(f).
1

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Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001) (noting
that when no liberty or property interest exists, the State “is free to
use any procedures it chooses, or no procedures at all”).
The Court will allow Count 3, the ex post facto claim, to
proceed. A statutory change that increases the time between parole
hearings violates the Ex Post Facto Clause if the change “produces
a sufficient risk of increasing the measure of punishment attached
to the covered crimes.” Ca. Dep’t of Corrections v. Morales, 514
U.S. 499, 509, 514 (1995) (finding that the legislative amendment
authorizing the Board of Prison Terms to defer subsequent
suitability hearings for up to three years for prisoners convicted of
certain offenses if the Board found it unreasonable to expect that
parole would be granted at an earlier hearing did not violate the Ex
Post Facto Clause where the amendment only applied to a class of
prisoners for whom the likelihood of release was remote).
Plaintiff alleges that, during the interval of a multi-year
continuance, new Board members often replace the members who
voted for the continuance. The new Board members are prevented
from voting in an inmate’s favor earlier than the expiration date of
the multi-year continuance. He further alleges that this creates a
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sufficient risk that his term of imprisonment will be increased
because, if Board members were allowed to vote earlier, he would
stand to be released earlier. The Court will allow Count 3 to
proceed at this time.
The Court also finds, however, that Plaintiff’s claims against
the Board are barred by the Eleventh Amendment. See Horton v.
Marovich, 925 F. Supp. 540, 545 (N.D. Ill. 1996) (claim against the
Illinois Prisoner Review Board barred by the Eleventh Amendment).
The Eleventh Amendment bars suits against a state, its agencies,
and departments absent consent by the state or a valid
congressional override. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment bar
applies regardless of the relief sought).
Here, the State has not consented to being sued in federal
court in the statute creating the Prisoner Review Board, and
Congress did not intend that § 1983 abrogate a state’s immunity.
See Horton, 925 F. Supp. at 544 (finding “[t]he state of Illinois has
not consented, either expressly or impliedly, to be sued in federal
court in the statute creating its Prisoner Review Board”); Thomas v.
Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (noting that “Congress
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did not abrogate the states’ sovereign immunity from suit under
section 1983”). Moreover, § 1983 only authorizes suits against
“persons,” which do not include states and state agencies. Id.
An exception to the Eleventh Amendment bar exists where the
suit is one against a state official seeking prospective injunctive
relief for an ongoing violation of federal law. Ex parte Young, 209
U.S. 123, 159-60 (1908); Ameritech Corp. v. McCann, 297 F.3d
582, 586 (7th Cir. 2002) (noting that “state officials may be sued in
their official capacities for injunctive relief”). Plaintiff brings such a
claim against Defendant Martinez. Therefore, Count 3 will proceed
solely against Defendant Martinez in her official capacity.
IT IS THEREFORE ORDERED:
1)

Defendant Illinois Prisoner Review Board is dismissed.

2)

This case is now in the process of service on Defendant

Martinez. Plaintiff is advised to wait until counsel has appeared for
Defendant before filing any motions, in order to give Defendant
notice and an opportunity to respond to those motions. Motions
filed before Defendant's counsel has filed an appearance will
generally be denied as premature. Plaintiff need not submit any

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evidence to the Court at this time, unless otherwise directed by the
Court.
3)

The Court will attempt service on Defendant Martinez by

mailing a waiver of service. Defendant has 60 days from the date
the waiver is sent to file an Answer or otherwise respond to the
complaint. If Defendant has not filed an Answer, a motion to
dismiss, or appeared through counsel within 90 days of the entry of
this order, Plaintiff may file a motion requesting the status of
service.
4)

Defendant Martinez shall file an answer or otherwise

respond within 60 days of the date the waiver is sent by the Clerk.
If Defendant files an answer, the answer should include all defenses
appropriate under the Federal Rules.
5)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
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filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendant's counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
6)

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
7)

If Defendant fails to sign and return a waiver of service

to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on Defendant and will require Defendant to pay
the full costs of formal service pursuant to Federal Rule of Civil
Procedure 4(d)(2).

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ENTERED: June 1, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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