Belk v. State of Illinois et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, granting 3 MOTION for Leave to Proceed in forma pauperis filed by Cameron Belk, Sr, denying 4 MOTION Injunctive Relief filed by Cameron Belk, Sr. Defendants STATE OF ILLINOIS a nd DEPARTMENT OF CORRECTIONS are DISMISSED from this action with prejudice. The Clerk is DIRECTED to correct the docket sheet to reflect that SHEILA BELL remains as a Defendant. IT IS ORDERED that the Clerk of Court shall prepare for Defendants BELL, JACKSON, STEPHENSON, GODINEZ, LEE, and MONREAL (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 9/23/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CAMERON BELK, SR.,
Plaintiff,
vs.
STATE OF ILLINOIS,
DEPARTMENT OF CORRECTIONS
(Namely SHEILA BELL),
GLENN JACKSON,
MARK S. STEPHENSON,
S.A. GODINEZ, ROBERT LEE,
and ADAM MONREAL,
Defendants.

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Case No. 13-cv-841-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
On August 15, 2013, Plaintiff Cameron Belk, Sr., filed suit in this Court under 42 U.S.C.
§ 1983, alleging violations of his federally secured constitutional rights, in that Defendants have
refused to properly calculate the time he should be required to remain on mandatory supervised
release1 (“MSR”). Consequently, he asserts he has served more than his required parole/MSR
time, and should be discharged from parole. He requests this Court to order his immediate
release, and further seeks monetary compensation for the excess MSR time he has been required
to serve.

1

After the Illinois Criminal Code was amended in 1978 to establish determinate sentences for the various
classes of felonies, the new statutory scheme provided that with the exception of a life sentence, “every
sentence shall include as though written therein a term in addition to the term of imprisonment. For those
sentenced under the law in effect prior to February 1, 1978, such term shall be identified as a parole term.
For those sentenced on or after February 1, 1978, such term shall be identified as a mandatory supervised
release term[.]” 5 ILL. COMP. STAT. 5/5-8-1(d) (West 2006). In common usage, as reflected in the instant
complaint, the terms “parole” and “mandatory supervised release” or “MSR” continue to be used
interchangeably. The Court uses both terms herein in reference to Plaintiff’s current status.
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Now before the Court is Plaintiff’s motion to proceed in forma pauperis (“IFP”), i.e.,
without prepaying the filing fee (Doc. 3). At the time of filing the complaint, Plaintiff had been
released from prison, and was housed in a personal residence. As such, Plaintiff does not meet
the statutory definition of prisoner2 for purposes of the in forma pauperis statute, which states
that “[t]he term ‘prisoner’ means any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law
or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28
U.S.C. § 1915(h).
Under 28 U.S.C. § 1915(a)(1), a federal district court may allow a civil case to proceed
without prepayment of fees, if the movant “submits an affidavit that includes a statement of all
assets [he] possesses [showing] that the person is unable to pay such fees or give security
therefor.” Plaintiff has done so in the instant case. But the Court’s inquiry does not end there,
because 28 U.S.C. § 1915(e)(2) requires careful threshold scrutiny of the complaint filed by an
IFP plaintiff.
A court can deny a qualified plaintiff leave to file IFP or can dismiss a case if the action
is clearly frivolous or malicious, fails to state a claim or is a claim for money damages against
an immune Defendant. 28 U.S.C. § 1915(e)(2)(B). The test for determining if an action is
frivolous or without merit is whether the plaintiff can make a rational argument on the law or
facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller,
708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to state a claim if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). When assessing a petition to proceed IFP, a district court
2

The determination of a plaintiff’s status as a prisoner or non-prisoner, and thus the applicability of the
Prison Litigation Reform Act (PLRA) must be made as of the date the lawsuit is brought. Kerr v.
Puckett, 138 F.3d 321, 323 (7th Cir. 1998).
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should inquire into the merits of the petitioner’s claims, and if the court finds them to be
frivolous, it should deny leave to proceed IFP. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir.
1982).
The Complaint
Plaintiff was convicted by a Champaign County jury of two counts of aggravated
criminal sexual abuse (a Class 2 felony) in 2008 (Doc. 2, p. 7).3 He was sentenced to 42
months on each count, to be served concurrently. The trial judge informed Plaintiff on the
record that he would be subject to a two-year period of MSR after serving his sentence,
however, that information was not reflected on the judgment/sentence (Doc. 2, pp. 7-8; Doc. 22, pp. 5, 7).
Plaintiff appealed his sentence, and the appellate court remanded the matter to the trial
court for resentencing. His sentence was then reduced to three years (concurrent), but again,
the MSR term was not included in the judgment. The trial judge left that section blank (Doc.
2-2, p. 8).
On March 25, 2010, Plaintiff was released from prison, and he has been on MSR since
that time (Doc. 2-2, p. 26). He notes that his original release date was January 12, 2010, but he
was held in prison until March because he did not yet have an approved host site (Doc. 2-2, pp.
28-29). Had he been released on schedule and given the correct MSR time of two years, he
would have completed his MSR on January 12, 2012. He now has been on MSR status for
well over three years.

3

The sentence for a Class 2 felony carries an automatic two-year period of MSR following the offender’s
release from prison. 5 ILL. COMP. STAT. 5/5-8-1(d)(2) (West 2006). However, Section 5/5-8-1(d)(5) of
that statute provides that where “the victim is under 18 years of age, for a second or subsequent offense of
aggravated criminal sexual abuse” the MSR term is increased to four years. Plaintiff was convicted of two
counts in one proceeding, therefore, he maintains that the “second or subsequent offense” provision of 58-1(d)(5) does not apply in his case and he should not have been given the increased four year MSR term.
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Plaintiff has made inquiries to the Illinois Department of Corrections, the Prisoner
Review Board, parole officials, and others, in an effort to correct the MSR term to two years
(Doc. 2, p. 7). He has been told that because the MSR term was left blank on his judgment,
corrections officials automatically set the MSR period at four years. He was advised to seek an
amended sentencing order in the trial court, which he did. However, the trial judge ruled on
August 9, 2013, that the trial court was without jurisdiction to grant the relief sought (Doc. 2, p.
8). Plaintiff further claims that the Illinois Appellate Court, Fourth District, has similarly
stated that it is without jurisdiction in the matter. Plaintiff asserts that “if no State entity
assumes jurisdiction over this matter, then the Federal Courts must have jurisdiction.” Id.
Finally, Plaintiff indicates the reason he has been unable to obtain the correction of his
MSR term is that he has been “unduly targeted” as a penalty for reporting the trial judge to the
Judicial Inquiry Board (Doc. 2, p. 7).
As relief, Plaintiff seeks an order that he be immediately released from parole/MSR,
that he be awarded compensatory damages for the time he has spent on MSR in excess of two
years, that he be relieved of the requirement to register as a sex offender, and that his
conviction be sealed (Doc. 2, p. 13).
Defendants
In reviewing Plaintiff’s complaint, it appears that he did not intend to name the “State
of Illinois” itself or the “Illinois Department of Corrections” (“IDOC”) as Defendants. Instead,
he identifies two individual Defendants (Sheila Bell and Glenn Jackson) as employees of the
State of Illinois, IDOC, by way of description (Doc. 2, pp. 1-2). He also includes IDOC
Director S.A. Godinez as a party. In the event that injunctive relief is ordered, the inclusion of
Defendants Godinez, Bell, and Jackson will be sufficient to carry out the same. See Gonzalez

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v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for injunctive
relief is the government official responsible for ensuring any injunctive relief is carried out).
Further, neither a State nor a division of state government may be sued in a § 1983 action for
money damages. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“neither a State
nor its officials acting in their official capacities are ‘persons’ under § 1983”); see also Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in
federal court for money damages). Accordingly, the State of Illinois and the Illinois
Department of Corrections shall be dismissed as Defendants in this action.
Release from MSR “Custody”
Although as noted above, Plaintiff is not a “prisoner” for purposes of the PLRA and his
IFP application, his status as a parolee on MSR means that he remains in this “custody” status,
pursuant to his judgment of conviction/sentence and under the control of the Illinois Prisoner
Review Board and parole authorities. A release from custody is not one of the remedies
available in a civil rights action under § 1983. Instead, a habeas corpus action under 28 U.S.C.
§ 2254 is the sole federal remedy for challenging the fact or duration of an inmate’s
confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (dismissing § 1983 claims that
should have been brought as petitions for writ of habeas corpus); Bunn v. Conley, 309 F.3d
1002, 1006-07 (7th Cir. 2002) (district court should not have recharacterized declaratory
judgment action as petition for habeas corpus); Godoski v. United States, 304 F.3d 761, 763
(7th Cir. 2002) (court must evaluate independently the substance of the claim being brought, to
see if correct statute is being invoked).
A petition for a writ of habeas corpus (not a civil rights action) is the proper route “[i]f
the prisoner is seeking what can fairly be described as a quantum change in the level of

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custody-whether outright freedom, or freedom subject to the limited reporting and financial
constraints of bond or parole or probation.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.
1991). Plaintiff’s request for termination of his MSR would amount to a “quantum change”
from the parole restrictions which now apply to him, to a status of “outright freedom.” See
Morrissey v. Brewer, 408 U.S. 471 (1972) (constitutional review of parole revocation
proceedings brought in habeas action); Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir.
1977) (challenges to conditions of parole must be brought in habeas corpus action).
Furthermore, before petitioning for a federal writ of habeas corpus, a plaintiff must first
exhaust his available state remedies. “A petitioner presents [his] claims fully simply by
pursuing all available avenues of relief provided by the state before turning to the federal
courts.” Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir. 1999). Plaintiff indicates that the
state trial court denied his recent motion for a written order specifying that his MSR term was
only two years. He does not indicate whether he appealed that determination in order to
exhaust his remedies. Moreover, a mandamus action in Illinois state court may be the
appropriate avenue to obtain the relief Plaintiff seeks. See Johnson v. McGinnis, 734 F.2d
1193, 1200 (7th Cir. 1984) (plaintiff may seek to compel public official to comply with
statutory or constitutional duties via mandamus action, and exhaustion is not complete unless
this remedy has been used in challenge to parole board action); People ex rel. Carey v.
Chrastka, 413 N.E.2d 1269 (Ill. 1980) (writ of mandamus can be used to obtain review of
circuit court judge’s ruling); Lee v. Findley, 835 N.E.2d 985, 987 (Ill. App. 2005) (mandamus
challenge to parole revocation proceeding).
To summarize, this Court cannot order Plaintiff’s release from parole/MSR in the
present civil rights action. Without commenting on the merits of his claims for damages or on

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any defenses that may be raised, at this stage of the litigation the damages claims do not appear
to be clearly barred.4
Motion for Leave to Proceed IFP (Doc. 3)
Plaintiff’s complaint survives review under § 1915(e)(2). His sworn IFP motion
establishes that he is indigent for purposes of IFP review. Nothing indicates that his action is
frivolous or malicious. The remaining named Defendants are not immune from relief. And at
this point, the Court cannot definitively conclude that his action fails to state any claim upon
which relief could be granted.
Accordingly, Plaintiff’s motion (Doc. 3) for leave to proceed IFP is GRANTED.
Plaintiff will be allowed to proceed in the action without payment of any fees. See 28 U.S.C.
§ 1915(a)(1); Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) (fee requirement of
§ 1915(a)(1) and (b) applies only to prisoners; non-prisoners granted leave to proceed in forma
pauperis are not responsible for paying filing fee at all).
Other Pending Motions
Plaintiff’s motion for injunctive relief (Doc. 4) seeks an order “abating” his MSR term
that he is currently serving. As noted above, an order releasing Plaintiff from his current
“custody” as a parolee is not available in a civil rights action filed pursuant to § 1983.
Accordingly, the motion for injunctive relief (Doc. 4) is DENIED without prejudice. Plaintiff
may seek this relief in the context of a § 2254 habeas petition, but only after he has exhausted
all available state court remedies.

4

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), a claim for damages is barred if a ruling in the
plaintiff’s favor would necessarily imply the invalidity of his conviction or sentence. In the instant case,
Plaintiff is not challenging the validity of his conviction or three-year sentence. While he takes issue with
the actions of IDOC and parole officials in requiring him to serve four years of MSR, he is clearly seeking
to enforce, not invalidate, the sentencing court’s imposition of a two-year MSR term, which was omitted
from the written judgment of sentence.
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Plaintiff’s motion for service of process at government expense (Doc. 5) is GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below on those Defendants
who remain in the action, but no service shall be made on the dismissed Defendants.
Disposition
Defendants STATE OF ILLINOIS and DEPARTMENT OF CORRECTIONS are
DISMISSED from this action with prejudice. The Clerk is DIRECTED to correct the docket
sheet to reflect that SHEILA BELL remains as a Defendant.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants BELL,
JACKSON, STEPHENSON, GODINEZ, LEE, and MONREAL (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this
Memorandum and Order to each Defendant’s place of employment as identified by Plaintiff. If
a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk
within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to
effect formal service on that Defendant, and the Court will require that Defendant to pay the
full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be
found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant’s current work address, or, if not known, the Defendant’s last-known address. This
information shall be used only for sending the forms as directed above or for formally effecting
service. Any documentation of the address shall be retained only by the Clerk. Address
information shall not be maintained in the court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or upon

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defense counsel once an appearance is entered), a copy of every pleading or other document
submitted for consideration by the Court. Plaintiff shall include with the original paper to be
filed a certificate stating the date on which a true and correct copy of the document was served
on Defendants or counsel. Any paper received by a district judge or magistrate judge that has
not been filed with the Clerk or that fails to include a certificate of service will be disregarded
by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under § 1915, Plaintiff will be required to pay the full
amount of the costs, notwithstanding that his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to
plaintiff. Local Rule 3.1(c)(1)

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Finally, Plaintiff is ADVISED that because he is proceeding pro se, he is under a
continuing obligation to keep the Clerk of Court and each opposing party informed of any
change in his address; the Court will not independently investigate his whereabouts. A notice
of change of address must be filed within 7 days of any such change occurring. Failure to
comply with this order will cause a delay in the transmission of court documents and may
result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 23, 2013
s/ J. Phil Gilbert
United States District Judge

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