Ginger v. Illinois Department of Corrections et al
Filing
5
MERIT REVIEW OPINION: Defendant IDOC is dismissed from this cause of action with prejudice. The Court will attempt service on Defendants Baldwin and Foster by mailing each Defendant a waiver of service. Plaintiff's motion for the Court to app oint counsel (d/e 4 ) is denied. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done. (Rule 16 Deadline 5/29/2018.) (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 3/27/2018. (GL, ilcd)
E-FILED
Wednesday, 28 March, 2018 09:52:11 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ROY C. GINGER,
)
)
Plaintiff,
)
)
v.
)
)
ILLINOIS DEPARTMENT OF
)
CORRECTIONS; JOHN BALDWIN, )
Acting Director; CRAIG FOSTER, )
Warden, Graham Correctional
)
Center,
)
)
Defendants.
)
No. 18-3051
MERIT REVIEW OPINION
Plaintiff filed this case pro se from the Graham Correctional
Center. The case is before the Court for a merit review pursuant to
28 U.S.C. § 1915A. This statute requires the Court to review a
complaint filed by a prisoner to identify the cognizable claims and to
dismiss part or all of the complaint if no claim is stated.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
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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).
On March 20, 2018, Plaintiff filed a Complaint (d/e 1)
pursuant to 42 U.S.C. § 1983 against the Illinois Department of
Corrections (IDOC); John Baldwin, Acting Director; and Craig
Foster, Warden, Graham Correctional Center. The Court construes
the claims against Baldwin and Foster as being brought against
them in their official capacity.
The IDOC website shows that Plaintiff was sentenced to 54
months’ imprisonment for aggravated child pornography to be
followed with a term of mandatory supervised release of three years
to life. According to the website, Plaintiff is still incarcerated, and
his projected parole date is May 1, 2018.
https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx
(last visited March 27, 2018).
In his Complaint, Plaintiff alleges that, “once [his] discharge
date came,” he was contacted by persons working in the Field
Services Office at the Graham Correctional Center. These officials
asked for Plaintiff’s release address, which he provided. Plaintiff
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was informed that his original site was denied, and he was asked to
provide alternative options. Plaintiff provided alternative options,
but those sites did not meet the statutory requirements and were
summarily denied as unacceptable locations. Plaintiff asked the
Clinical Services Office and the Field Services Office on numerous
occasions for assistance in locating a suitable site for Plaintiff’s
release, but to no avail. Plaintiff alleges he is being held
unconstitutionally after the completion of his sentence because he
does not have a suitable parole site or the financial resources with
which to obtain one. (Plaintiff uses the term “parole” but “parole”
and “mandatory supervised release” are distinct, even though
courts tend to use the terms interchangeably. See Crayton v.
Duncan, No. 15-cv-399-NJR, 2015 WL 2207191, at *5 n.3 (S.D. Ill.
May 8, 2015)). Plaintiff requests that he be immediately released
from custody and/or receive immediate assistance to locate suitable
placement or housing so that he can be released.
To state a claim pursuant to 42 U.S.C. § 1983, Plaintiff must
allege (1) the deprivation of a right secured by the Constitution or
laws of the United States; and (2) the alleged deprivation was
committed by a person acting under the color of state law.
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Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th
Cir. 2009). IDOC is not a proper Defendant because states and
state agencies are not “persons” that can be sued under § 1983.
Johnson v. Supreme Court of Ill., 165 F.3d 1140, 1141 (7th Cir.
1999) (noting that “states and their agencies are not ‘persons’
subject to suit under 41 U.S.C. § 1983”); Glispie v. Ill. Dep’t of
Corrections, No. 12-2060, 2012 WL 6761522, at *1 (C.D. Ill. Oct.
24, 2012) (“No matter what relief Plaintiff seeks against Defendant
IDOC, his claim against IDOC is barred because IDOC, as a state
agency, is not a “person” that may be sued under § 1983.”) report
and recommendation adopted by 2013 WL 42306 (C.D. Ill. Jan. 3,
2013).
Therefore, IDOC is dismissed from this lawsuit with
prejudice.
In addition, Plaintiff cannot bring his request for immediate
release in the context of a civil rights case under § 1983. Simpson
v. Nickel, 450 F.3d 303, 307 (7th Cir. 2006). Instead, he must
bring a petition for habeas corpus relief under § 2254. Id. (stating
that “any challenge to the fact or duration of custody must proceed
under § 2254 or an equivalent statute”); see also Crayton, 2015 WL
2207191, at *2.
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As for Plaintiff’s request that he receive immediate assistance
to locate a suitable placement or housing so that he can be
released, such a claim falls within the bounds of a § 1983 action.
Id. That is, Plaintiff’s claim can be construed as a challenge to the
state procedures used to deny him his release. See Murphy v.
Madigan, No. 16 C 11471, 2017 WL 3581175, at *6 (N.D. Ill. Aug.
18, 2017) (finding that the plaintiffs’ claim that IDOC officials are
using unconstitutional rules when deciding whether a prisoner will
be released on mandatory supervised release was properly brought
under § 1983); Crayton, 2015 WL 2207181, at *2; see also Murdock
v. Walker, No. 08 C 1142, 2014 WL 916992, *5 (N.D. Ill. Mar. 10,
2014) (finding that the plaintiffs’ challenge was not to the fact or
duration of confinement but to the procedures used to deny them
release; that is, they “seek relief that will render invalid the state
procedures used to deny parole eligibility . . . and parole
suitability”).
In Murphy v. Madigan, a class of indigent sex-offenders
remained imprisoned indefinitely because they could not find
approved housing. Murphy, 2017 WL 3581175, at *1. The court
held that the plaintiffs’ challenge to the constitutionality of the
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procedures the defendants applied to determine whether the
plaintiffs would be released on mandatory supervised release stated
a substantive due process claim, an Eighth Amendment claim, an
equal protection claim, and a procedural due process claim.
In light of Murphy, and liberally construing Plaintiff’s
complaint, the Court will order service on Defendants Baldwin and
Foster but afford them the opportunity to file a motion to dismiss.
IT IS THEREFORE ORDERED:
1)
Defendant IDOC is dismissed from this cause of action
with prejudice.
2)
This case is now in the process of service on Defendants
Baldwin and Foster. Plaintiff is advised to wait until counsel has
appeared for Defendants before filing any motions, in order to give
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 otherwise directed by
the Court.
3)
The Court will attempt service on Defendants Baldwin
and Foster by mailing each Defendant a waiver of service.
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Defendants have 60 days from the date the waiver is sent to file an
Answer or otherwise respond to the complaint. If Defendants have
not filed Answers, 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)
Defendants Baldwin and Foster shall file an answer or
otherwise respond within 60 days of the date the waiver is sent by
the Clerk. If Defendants file 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
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' 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
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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 a 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 that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
8)
Plaintiff’s motion for the Court to appoint counsel
(d/e 4) is denied, with leave to renew after Plaintiff demonstrates
that he has made reasonable efforts to find counsel on his own.
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically
requires writing to several lawyers and attaching the responses.
Plaintiff asserts that he has written to several prisoner attorneys or
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legal aid societies, but he does not say who he asked, nor does he
attach any responses to his motion. If Plaintiff renews his motion
for counsel, he should set forth how far he has gone in school, any
jobs he has held inside and outside of prison, any classes he has
taken in prison, and any prior litigation experience he has. He shall
also sign the Motion under penalty of perjury, as his current Motion
is unsigned. See d/e 4 at 2.
9)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done.
ENTERED: March 27, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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