Willis v. Illinois Department of Corrections-Prisoner Review Board et al

Filing 163

Opinion and Order Signed by the Honorable Joan H. Lefkow on 3/31/2017: defendants' motion to dismiss counts I, II, and III 137 is granted with prejudice as to counts I and II and without prejudice as to count III. Willis is given leave to refile a fourth amended complaint with respect to count III by April 28, 2017. A status hearing is set for May 9, 2017 at 11:00 a.m.Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENNY L. WILLIS,

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Plaintiff,
v.
KENNETH ROSS, RICK BARD, ALAN S.
HAHN, CLARENCE DUMAS, JR., AND
MICHELLE LITTLEJOHN,
Defendants.

Case No. 12 CV 1939

Judge Joan H. Lefkow

OPINION AND ORDER
Benny L. Willis filed suit against Kenneth Ross, Rick Bard, Alan S. Hahn, Clarence
Dumas, Jr., and Michelle Littlejohn in March 2012, alleging various violations of his federal
constitutional rights secured by 42 U.S.C. § 1983. Willis’s Third Amended Complaint alleges (1)
violation of his due process rights under the United States Constitution resulting from the failure
of Ross, Bard, Hahn, and Dumas to ensure he received a prompt preliminary parole revocation
hearing; (2) violation of his due process rights under the Illinois Constitution and his Illinois
statutory right to such a hearing resulting from the same conduct; and (3) violation of his due
process rights under the federal Constitution resulting from Littlejohn’s negligence in
miscalculating his sentence. Defendants move to dismiss all three claims for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and to dismiss the claim against Littlejohn
for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the
reasons stated below, defendants’ motion is granted with prejudice as to counts I and II, and with
leave for Willis to file a Fourth Amended Complaint as to count III.

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BACKGROUND 1
On August 23, 2007, while on parole for an unrelated conviction, Willis 2 was arrested by
local police in University Park, Illinois, and taken to the Will County Jail. Willis was charged
with aggravated robbery. 3 The day following the arrest, Bard, an executive designee with IDOC,
and Hahn, an IDOC warrant officer, signed a warrant directing that Willis be taken into custody
for delivery to IDOC for having violated the conditions of his parole. Willis denies that he
violated parole but, because of the warrant, he was not permitted to post bail for the aggravated
robbery charge, an otherwise bailable offense under Illinois law. (Dkt. 146 at 3.) Bard, Hahn,
Ross (also an IDOC warrant officer), and Dumas (Willis’s parole officer) failed to provide Willis
a preliminary parole revocation hearing. As a result, Willis remained in the Will County Jail for
29 months. On January 15, 2010, Willis pleaded guilty to a charge of committing aggravated
robbery on August 14, 2007. He received a sentence of six years of imprisonment, with credit for
877 days of time served, and his parole was officially revoked that same day.
In March 2010, Littlejohn, an employee of the Illinois Parole Review Board (PRB),
1

The facts described herein are taken from the Third Amended Complaint and are accepted as
true for the purposes of this motion. See Thompson v. Ill. Dep’t of Prof’l Reg., 300 F.3d 750, 753 (7th Cir.
2002) (citation omitted); Fed. R. Civ. P. 10(c). The court will also consider the additional factual
allegations in Willis’ response to this motion. See United States ex rel. Hanna v. City of Chicago, 834
F.3d 775, 779 (7th Cir. 2016) (quoting Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992)
(“The party defending the adequacy of a complaint may point to facts in a brief or affidavit ‘in order to
show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would
entitle him to judgment.’”).
2

According to the State of Illinois inmate search website, https://www.illinois.gov/idoc/
Offender/Pages/InmateSearch.aspx (visited March 29, 2017), Willis is currently confined in the Illinois
Department of Corrections in Mt. Sterling, Illinois. Willis’s six-year sentence for the armed robbery
conviction that gave rise to the parole violation warrant in this case was discharged, but he is currently
serving a twelve-year sentence with a custody date beginning December 16, 2011. Id.
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Willis does not directly allege that he was charged on August 23 or 24, but since he admits
pleading guilty to a charge of committing aggravated robbery on August 14, 2007, and he was in custody
from August 23 forward for 29 months, this is the only permissible inference.

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negligently miscalculated Willis’s release date by adding approximately one year to the
calculation, resulting in a release date of April 19, 2011, instead of August 21, 2010. This alleged
error resulted in Willis’s remaining incarcerated nearly eight months beyond his proper release
date.
ANALYSIS
I.

Failure to State a Claim
Defendants’ motion to dismiss counts I and II is treated according to the well-established

principles to be applied when assessing a motion to dismiss under Rule 12(b)(6). See Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Bell Atl. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (holding that although a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do; also, factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true). In making this
determination, the complaint is construed in the light most favorable to the plaintiff, accepting as
true the well-pleaded allegations, and drawing all reasonable inferences in the plaintiff’s favor.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
A.

Due Process Under the Fourteenth Amendment (Count I)

Willis claims that Ross, Bard, Hahn, and Dumas denied him procedural due process when
they failed to provide a preliminary parole revocation hearing as mandated by Morrissey v.
Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Defendants respond that, because
a parole violator warrant was issued but not executed, his due process right to a preliminary
hearing was not triggered.
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In Morrissey, the Supreme Court held that a State may not revoke parole without
affording the defendant due process. Id. at 481 (citing Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 168, 71 S. Ct. 624, 95 L. Ed. 817 (1951)). The Court imposed due
process requirements at two stages of the typical process of parole revocation: first, at the time of
arrest and detention of the parolee; second, when parole is formally revoked. Morrissey, at 485–
87. At the first stage (which is at issue here), “some minimal inquiry [must] be conducted at or
reasonably near the place of the alleged parole violation or arrest and as promptly convenient
after arrest” “to determine whether there is probable cause or reasonable ground to believe that
the arrested parolee has committed acts that would constitute a violation of parole conditions.”
Morrissey, 408 U.S. at 485. 4 It is at this first stage that Wills complains that he was denied due
process.
Filling in the blanks in the complaint, the court infers for purposes of this decision that
soon after Willis was arrested for the aggravated robbery, police determined that he was on
parole and notified IDOC, and the defendant parole authorities caused issuance of a warrant for
arrest. But because Willis was already in custody for the robbery charge, they held onto the
warrant while that charge awaited disposition. Since Willis alleges that he was denied bail
because of the warrant, the fact of his being a parolee must have been made known to the judge
who considered his request for bail.

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The determination must be made by someone other than the parole officer responsible for the
parolee and the parolee is entitled to notice of the alleged violation, an opportunity to be present and
speak in his own behalf, and to present documents, letters, and individuals who can provide relevant
information. Id. at 487. The parolee is also entitled to question anyone who has given adverse information
(absent a risk of harm to that person). Id. After the preliminary hearing, the hearing officer is to make a
written summary of what occurs at the hearing and to determine whether there is probable cause to
believe that the parolee violated, stating reasons. Id.

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Willis contends that defendants violated his due process rights by issuing the warrant
because the issuance, regardless of whether it was executed, made it impossible for him to post
bail. He alleges that he had a “well-established constitutional right to a prompt preliminary
parole revocation hearing” and it was the duty of the defendants to provide it. Willis’s theory
suggests that, if he had been provided the hearing, there would have been a finding of no
probable cause for the parole violation warrant; and he would have been admitted to bail. The
issue, then, is whether Willis was entitled to a preliminary hearing on the asserted parole
violation reasonably close to the time of the arrest, whether or not the warrant was executed.
Defendants cite Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976)
and Doyle v. Elsea, 658 F.2d 512, 515–16 (7th Cir. 1981), in support of their argument that a
warrant must be executed before a right to a preliminary parole revocation hearing is triggered.
In Moody, a federal parolee was convicted of new crimes and returned to prison. Thereafter, the
United States Board of Parole issued a parole violator warrant and lodged it as a detainer with
prison officials. As a detainer, the parole revocation determination was placed on hold until all
the sentences had been served. 429 U.S. at 80 n.2. The Board refused Moody’s early request that
the warrant be executed immediately so he could concurrently serve the recent sentence, the
original sentence, and any sentence imposed for a parole violation. Id. at 81, 85. Affirming the
denial of a writ of habeas corpus, the Supreme Court held that a Morrissey-type hearing was not
constitutionally required because the petitioner was already in prison for the convictions and,
therefore, had no liberty interest sufficient to invoke the right to a prompt hearing.
Doyle addressed a claim much closer to Willis’s situation. There, a federal parolee was
arrested on a new criminal charge and was not able to make bail because the Parole Commission
issued a parole violation warrant. He remained in custody until his conviction on the new charge.

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He claimed a due process right to an early parole revocation hearing because the warrant
prevented him from being released on bail. The Seventh Circuit distinguished Moody on the
basis that Moody, unlike Doyle, had already been convicted of the new crimes when the parole
violation detainer was lodged, but it held that, since Doyle’s liberty interest centered on his
attempt to be released on bail and a “reasonably prompt” parole revocation hearing “would in no
way advance [that] interest in such pretrial release,”658 F.2d at 516, his due process rights were
not violated when he did not receive a hearing within three months of his arrest.
In his complaint, Willis acknowledges that he eventually pleaded guilty to aggravated
robbery and his parole was revoked. He does not argue that this revocation was flawed. The only
reasonable inference that can be drawn from this fact is that, had Willis received a preliminary
parole revocation hearing, probable cause would have been found to hold Willis pending a parole
revocation hearing. The Seventh Circuit noted in Doyle that “there is no reason to ignore the
practical realities of [the plaintiff’s] case,” 658 F.2d at 517, and here the practical reality is that a
preliminary parole revocation hearing would not have advanced Willis’s interest in obtaining
pretrial release. Thus, the court finds that Willis has failed to state a claim on which relief can be
granted and count I must be dismissed with prejudice.
B.

Willis’ Claim for Violation of Due Process Under Illinois Law (Count II)

Because the court has determined that it must dismiss count I with prejudice and count III
does not arise out of the same common nucleus of operative fact as the allegations in count II,
the court lacks supplemental jurisdiction over count II. Count II will, therefore, be dismissed
with prejudice.
II.

Subject-Matter Jurisdiction (Count III)
“In considering a motion to dismiss for lack of subject matter jurisdiction, the district

court must accept the complaint’s well-pleaded factual allegations as true and draw reasonable
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inferences from those allegations in the plaintiff’s favor.” Transit Exp., Inc. v. Ettinger, 246 F.3d
1018, 1023 (7th Cir. 2001).
Littlejohn argues that, because she was an employee of the State acting within the scope
of her authority when she negligently calculated Willis’s release date, count III is a tort claim
against the State that must be filed in the Illinois Court of Claims. She relies on Healy v. Vaupel,
549 N.E.2d 1240, 1247, 133 Ill. 2d 295, 140 Ill. Dec. 368 (1990), holding that the Illinois State
Lawsuit Immunity Act and the Court of Claims Act grant the court of claims exclusive
jurisdiction to hear “[a]ll claims against the State for damages in cases sounding in tort.” 705 Ill.
Comp. Stat. 505/8(d); see also 745 Ill. Comp. Stat. 5/1. Willis argues in response that Healy is
distinguishable because Willis alleges not a simple tort claim, but a violation of his Fourteenth
Amendment due process rights.
Willis has pleaded that “[a]s a direct and proximate result of Littlejohn’s negligence,
plaintiff was not released until April 19, 2011, depriving him of his freedom without due process
of law.” (Dkt. 121 ¶ 35.) Because Willis had already been convicted when his release date was
miscalculated, his claim arises under the Eighth Amendment, as to which he must show
deliberate indifference to the risk that he would be deprived of liberty. See Figgs v. Dawson, 829
F.3d 895, 902 (7th Cir. 2016) (“Incarceration beyond the date when a person is entitled to be
released violates the Eighth Amendment if it is the product of deliberate indifference.”)
“Deliberate indifference requires more than negligence or even gross negligence; a plaintiff must
show that the defendant was essentially criminally reckless, that is, ignored a known risk.” Id.at
903.
As pleaded, the Third Amended Complaint fails to state a claim for deliberate
indifference and must be dismissed, but without prejudice to repleading if Willis can in good

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faith allege facts supporting an inference of deliberate indifference, as opposed to negligence or
gross negligence. If, however, Willis’s claim is merely a claim of negligence, that claim belongs
in the Illinois Court of Claims. See Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001)
(“The Illinois State Lawsuit Immunity Act . . . provides that the State of Illinois is immune from
suit in any court, except as provided in the Illinois Court of Claims Act . . . . These state
immunity rules apply to [plaintiff’s] state law claims in federal court.”)
CONCLUSION
For the reasons stated above, defendants’ motion to dismiss counts I, II, and III (dkt. 137)
is granted with prejudice as to counts I and II and without prejudice as to count III. Willis is
given leave to refile by April 28, 2017. A status hearing is set for May 9, 2017 at 11:00 a.m.

Date: March 31, 2017

_____________________________
U.S. District Judge Joan H. Lefkow

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