Frazier et al v. Baldwin
Filing
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MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 1/23/2019.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBIN FRAZIER, BRANDI EDWARDS, JENNIFER
TYREE, CELINA MONTOYA, and SHARON
FRAZIER, as guardian and next friend of T.G.,
individually and on behalf of all others similarly situated,
Plaintiffs,
vs.
JOHN BALDWIN, in his official capacity as Director of
the Illinois Department of Corrections,
Defendant.
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18 C 1991
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Four women serving terms of mandatory supervised release following their state court
convictions for sex offenses bring this putative class action under 42 U.S.C. § 1983 against John
Baldwin in his official capacity as the director of the Illinois Department of Corrections
(“IDOC”), alleging that an IDOC policy prohibiting them from having any contact with their
minor children for the first six months of mandatory supervised release violates their procedural
and substantive due process rights. Doc. 1. (One of the minor children brings a substantive due
process claim of her own, but for simplicity’s sake this opinion will refer only to the mothers’
claims.) IDOC moves under Civil Rule 12(b)(6) to dismiss the substantive due process claim.
Doc. 34. The motion is denied.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
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“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Plaintiffs’ brief opposing dismissal, so long as those additional facts “are consistent with
the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013).
The facts are set forth as favorably to Plaintiffs as those materials allow. See Pierce v. Zoetis,
Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court
does not vouch for their “objective truth.” Goldberg v. United States, 881 F.3d 529, 531 (7th
Cir. 2018).
Plaintiffs, mothers of minor children, are either eligible for or serving terms of mandatory
supervised release (“MSR”), a nondiscretionary form of parole, after having been convicted in
Illinois state court of crimes for which they must register as sex offenders. Doc. 1 at ¶¶ 8, 11 n.1.
An Illinois statute, 730 ILCS 5/3-3-7(b-1)(9), provides that persons required to register as sex
offenders must during their MSR terms “refrain from all contact, directly or indirectly,
personally, by telephone, letter, or through a third party, with minor children without prior
identification and approval of an agent of [IDOC].” Id. at ¶ 11. In words nearly identical to the
statute, the Illinois Prisoner Review Board, the body responsible for setting MSR conditions,
imposed on Plaintiffs what will be called “the Contact Condition”: “You shall refrain from all
contact, directly or indirectly, personally, by telephone, letter, or through a third party, with
minor children without prior identification and approval of an agent of [IDOC].” Id. at ¶ 12.
To implement the Contact Condition, IDOC adopted a policy that categorically prohibits
all persons subject to the condition, regardless of individual circumstances or risks, from
contacting their minor children for the first six months of their MSR term. Id. at ¶¶ 13, 15; Doc.
13 at 1-2 (noting that the blanket policy applies for the first six months of MSR); Doc. 19 at 2
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(same). (IDOC notified the court on the record that it plans to revise the policy, Doc. 22, and the
court issued a preliminary injunction that lifts the categorical six-month ban, Doc. 33, but
IDOC’s motion assumes that the ban formally remains in place, Doc. 35 at 1, and the court will
do so as well.) Pursuant to that policy, IDOC barred Plaintiffs from contacting their minor
children by any means during the first six months of MSR even though they had “maintained
regular contact through letters, phone calls, and in-person visits with their minor children while
incarcerated.” Doc. 1 at ¶¶ 23, 26.
Discussion
Plaintiffs sued to enjoin IDOC’s policy, alleging that it violates their substantive and
procedural due process rights. Id. at ¶¶ 107-112. To support their substantive due process claim,
Plaintiffs allege that the policy’s deprivation of “their fundamental rights to contact and live with
their children while on MSR [is] not narrowly tailored to serve a compelling government
interest.” Id. at ¶ 110. IDOC contends that the substantive due process claim should be
dismissed because it must be brought, if at all, in a habeas corpus petition, not a § 1983 suit.
“Federal law opens two main avenues to relief on complaints related to imprisonment: a
petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of
1871, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004). The Supreme Court
has delineated the respective scope of these two avenues in a series of cases beginning with
Preiser v. Rodriguez, 411 U.S. 475 (1973). As matters now stand, “state prisoners [may] use
only habeas corpus … when they seek to invalidate the duration of their confinement—either
directly through an injunction compelling speedier release or indirectly through a judicial
determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson v.
Dotson, 544 U.S. 74, 81 (2005). Thus, if “a judgment in favor of the plaintiff” on a particular
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claim “would necessarily imply the invalidity of [a] conviction or sentence” that has not yet been
invalidated, the plaintiff must bring that claim under the habeas statute, Heck v. Humphrey, 512
U.S. 477, 487 (1994), after satisfying “its attendant procedural and exhaustion requirements,”
Nelson v. Campbell, 541 U.S. 637, 643 (2004). By contrast, if “the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff,” the plaintiff may bring her claim under § 1983. Heck, 512 U.S. at 487.
“The exception to § 1983 jurisdiction” for claims covered by the federal habeas statute
“is a narrow one, designed to preserve the specific role of habeas corpus relief.” Savory v.
Lyons, 469 F.3d 667, 672 (7th Cir. 2006). Habeas is the exclusive avenue of relief only where
the claim “seeks—not where it simply relates to—core habeas corpus relief, i.e., where a state
prisoner requests present or future release.” Wilkinson, 544 U.S. at 81 (internal quotation marks
omitted). Thus, Ҥ 1983 remains available for procedural challenges where success in the action
would not necessarily spell immediate or speedier release for the prisoner,” as when a prisoner
seeks a new parole hearing on the ground that the procedures employed in the prior hearing
violated the Constitution, ibid., or an injunction barring prison officials from using
unconstitutional procedures in future disciplinary proceedings, see Edwards v. Balisok, 520 U.S.
641, 648 (1997); Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974). Similarly, a person
sentenced to death may use § 1983 to challenge the “policies and procedures” used to
“implement[]” the sentence. Hill v. McDonough, 547 U.S. 573, 577, 579-80 (2006).
These rules are relatively simple to apply when an incarcerated plaintiff files a lawsuit
challenging some aspect of her incarceration: “[A] prisoner challenging the fact or duration of
his confinement must seek habeas corpus relief; a prisoner challenging a condition of his
confinement, by contrast, must seek relief under 42 U.S.C. § 1983.” Cochran v. Buss, 381 F.3d
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637, 639 (7th Cir. 2004). The rules are more difficult to apply when the plaintiff is on probation
or parole, where “the distinction between the fact of confinement and the conditions thereof is
necessarily blurred.” Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir. 1977). As the
Seventh Circuit has explained:
[For parolees,] the “conditions” of parole are the confinement. Requirements
that parolees stay in touch with their parole officer, hold down a job, steer
clear of criminals, or … obtain permission for any proposed travel outside the
jurisdiction, are what distinguish parole from freedom. … [These] restrictions
define the perimeters of her confinement. Thus, eliminating or changing one
of the restrictions would alter the confinement: figuratively speaking, one of
the “bars” would be removed from the [parolee’s] cell.
Williams v. Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003) (internal quotation marks, citations,
and brackets omitted). Therefore, “if [a plaintiff] is seeking release from the conditions of
probation [or parole] imposed on him by the courts, a petition for a writ of habeas corpus is the
appropriate vehicle for seeking relief, not a lawsuit … under section 1983.” Tobey v. Chibucos,
890 F.3d 634, 651 (7th Cir. 2018) (italics omitted); see also Jackson v. Lemmon, 738 F. App’x
369, 371 (7th Cir. 2018) (“Jackson may not challenge his parole condition … in a § 1983 suit for
damages. Because parole is a form of custody, a challenge to a parole condition is a challenge to
the perimeters of his confinement and so must be brought as a collateral attack.”) (internal
quotation marks and brackets omitted); Williams, 336 F.3d at 579 (same); Drollinger, 552 F.2d
at 1225 (“Habeas corpus … is the appropriate remedy for a defendant seeking release from
custody or expansion of the perimeters of his confinement. [The plaintiff’s] constitutional
challenge to the conditions and terms of probation is an attempt to obtain such relief, and
therefore, must be brought as a petition for habeas corpus.”).
The parties agree on these principles and dispute only how they apply to this case.
Plaintiffs submit as a preliminary matter that IDOC’s policy is not itself a “condition” of their
MSR because it was neither included in the sentence entered by the court nor imposed as an
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MSR condition by the Prisoner Review Board; rather, they contend, the policy is an internal
guideline governing how IDOC officials implement the Contact Condition. Doc. 47 at 3-5.
Plaintiffs are correct. State law governs whether a parole condition is part of the plaintiff’s
sentence for purposes of Preiser and its progeny. See Hill, 547 U.S. at 577, 580-81 (analyzing
state law to determine whether the plaintiff challenged “the fact of the sentence itself”);
Drollinger, 552 F.2d at 1225 (“Our analysis of the Indiana statutes authorizing the granting of
probation demonstrates … that the plaintiff is in this suit challenging the sentence of the trial
court, clearly the proper subject matter for a habeas corpus action.”). And Illinois law provides
that “[t]he conditions of parole or mandatory supervised release shall be such as the Prisoner
Review Board”—not IDOC—“deems necessary to assist the subject in leading a law-abiding
life.” 730 ILCS 5/3-3-7 (emphasis added). Thus, as IDOC acknowledges, there is a distinction
between the Contact Condition itself and the manner in which IDOC implements it. Doc. 52 at 1
(“The statutory MSR conditions, which are automatically imposed at sentencing, give the IDOC
the discretion to determine whether a sex offender may have contact with minors.”).
The dispositive question, then, is whether Plaintiffs’ substantive due process challenge to
the way IDOC implements the Contact Condition may be brought under § 1983 or instead must
be brought in a habeas petition. The answer is that the challenge may proceed under § 1983.
As noted, “a prisoner challenging the fact or duration of his confinement must seek
habeas corpus relief,” Cochran, 381 F.3d at 639, and for a parolee, “the conditions of parole are
the confinement,” Williams, 336 F.3d at 579 (emphasis omitted). Plaintiffs’ challenge here,
however, is not a challenge to their confinement because it is not a challenge to the Contact
Condition itself. If Plaintiffs succeed on their substantive due process claim, the Contact
Condition will continue to apply and IDOC will continue to implement it, so long as it does so in
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a constitutional manner. For the same reason, victory for Plaintiffs on their claim will not result
in the “elimination or substitution” of the Contact Condition. Drollinger, 552 F.2d at 1225. Nor
does Plaintiffs’ substantive due process challenge “necessarily imply the invalidity of [their]
conviction[s] or sentence[s],” see Heck, 512 U.S. at 487, since a challenge to one way of
implementing the Contact Condition does not suggest that the condition itself, or any other aspect
of Plaintiffs’ convictions or sentences, is unlawful. And although the Contact Condition, like
Plaintiffs’ other MSR conditions, is among the “bars” of their metaphorical prison cells,
Williams, 336 F.3d at 580, how IDOC has chosen to implement that condition is the equivalent
of what prison officials do within the confines of an actual prison cell—the archetypical subject
of a § 1983 prison conditions suit.
The analogy between Plaintiffs’ substantive due process claim and a typical § 1983
prison conditions suit is a strong one. Although a court order sentencing a defendant to a term of
imprisonment must be challenged via a habeas petition, the manner in which state officials
implement the sentence—for example, whether they provide the prisoner with sufficient access
to medical care, see Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015), expose her to extreme
temperatures or noxious substances, see McKinley v. Schoenbeck, 731 F. App’x 511, 516 (7th
Cir. 2018), or protect her from threats to her physical safety, see Estate of Simpson v. Gorbett,
863 F.3d 740, 745 (7th Cir. 2017)—is properly subject to a § 1983 suit. After all, a court order
requiring a state official to implement a prison sentence differently does not alter the nature or
length of the prisoner’s sentence, even though it changes her experience in prison. By the same
token, a court order prohibiting a state official from implementing a parole condition in a certain
way—here, an order prohibiting IDOC from implementing the Contact Condition in a way that
categorically bars a parolee from contacting her minor children for at least six months regardless
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of the actual risk such contact would pose—would not alter any plaintiff’s sentence, even though
it may change her experience on parole.
Plaintiffs’ substantive due process challenge to IDOC’s implementation of the Contact
Condition also bears a strong resemblance to the Eight Amendment challenge in Hill to the
procedures adopted by the Florida Department of Corrections for implementing a death sentence
by lethal injection. Hill held that the prisoner’s claim was properly brought under § 1983 where
the governing Florida statute required that the plaintiff “be executed by lethal injection,” but
“le[ft] implementation to the department of corrections” and “[did] not require the department of
corrections to use the challenged procedure.” 547 U.S. at 577, 580. The Supreme Court
reasoned that a suit seeking to enjoin Florida prison officials from “executing [the plaintiff] in
the manner that they currently intend” was distinguishable from a suit “challenging the lethal
injection sentence as a general matter.” Id. at 580. The Court added that the plaintiff’s suit left
open the possibility that “other methods of lethal injection the Department could choose to use
would be constitutional,” meaning that his lawsuit “if successful would not necessarily prevent
the State from executing him by lethal injection.” Id. at 580-81.
Plaintiffs’ challenge to IDOC’s implementation of the Contact Condition shares
important commonalities with the § 1983 claim in Hill. For one, Plaintiffs’ challenge is
distinguishable from a challenge to the Contact Condition “as a general matter,” as victory for
Plaintiffs would leave the Contact Condition in place and change only how IDOC implements it.
For another, the Contact Condition as written does not require IDOC to use the policy challenged
by Plaintiffs; the condition provides that Plaintiffs may not contact minors without IDOC’s
permission, Doc. 1 at ¶ 11, but does not prohibit IDOC from giving Plaintiffs permission to
contact their minor children within the first six months of their MSR terms or place any other
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restrictions on how and when IDOC may grant such permission. And contrary to IDOC’s
submission, Doc. 52 at 2, victory for Plaintiffs would not “eliminate[]” the Contact Condition or
require IDOC to grant Plaintiffs permission to see their children at any particular time or after
any particular juncture. Plaintiffs allege that a blanket policy of refusing permission for six
months without an individualized risk assessment violates substantive due process. Doc. 1 at
¶ 18. If this argument prevails, IDOC still could bar contact for six months (or perhaps longer)
based on an individualized evaluation of a parolee’s circumstances. Id. at ¶¶ 110, 112.
IDOC retorts that because the Contact Condition grants it discretion to decide whether
Plaintiffs may contact their minor children, any attempt to cabin its discretion would “partially
invalidate” the condition. Doc. 52 at 1. But prisoners routinely file suits challenging decisions
committed by law to the discretion of prison officials, and those suits are properly brought under
§ 1983. Compare Isby v. Brown, 856 F.3d 508, 525 (7th Cir. 2017) (“[A] prison’s internal
security is a matter normally left to the discretion of prison administrators.”) (alteration omitted)
(quoting Hewitt v. Helms, 459 U.S. 460, 474 (1983), abrogated in part on other grounds by
Sandin v. Conner, 515 U.S. 472 (1995)), with Gevas v. McLaughlin, 798 F.3d 475, 480-81 (7th
Cir. 2015) (entertaining a § 1983 suit challenging prison officials’ failure to protect the plaintiff
from physical harm); compare People v. Lego, 570 N.E.2d 402, 403-04 (Ill. App. 1991)
(describing IDOC’s broad discretionary authority over prisoners’ conditions of confinement),
with Wilkinson, 544 U.S. at 84 (“[T]his Court has repeatedly permitted prisoners to bring § 1983
actions challenging the conditions of their confinement … .”). Indeed, IDOC acknowledged at
the motion hearing that Illinois prisoners may challenge under § 1983 the manner in which they
are housed even though Illinois law gives it discretionary authority over how to house prisoners.
See 730 ILCS 5/3-2-2(1)(c) (“[T]he Department [of Corrections] shall have the following
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powers: … To maintain and administer all State correctional institutions and facilities under its
control … .”). IDOC offers no principled reason for treating any differently discretionary
decisions regarding implementation of MSR conditions like the Contact Condition.
IDOC does not seek dismissal of Plaintiffs’ substantive due process claims on any other
ground, so any such argument is forfeited for purposes of this motion. See G & S Holdings LLC
v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party
waives an argument by failing to make it before the district court.”); Alioto v. Town of Lisbon,
651 F.3d 715, 721 (7th Cir. 2011) (“Longstanding under our case law is the rule that a person
waives an argument by failing to make it before the district court.”).
Conclusion
For the foregoing reasons, IDOC’s motion to dismiss Plaintiffs’ substantive due process
claim is denied.
January 23, 2019
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United States District Judge
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