McCaskill v. Nance et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/26/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEPHEN DOUGLAS MCCASKILL,

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Plaintiff,
vs.
R. NANCE,
NOLEN,
COUNSELOR LYNN,
BOB ALLARD,
COUNSELOR SEIPS,
COUNSELOR REEDER,
J. PATE, and
E. AKPORE,
Defendants.

Case No. 17-cv-352-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Stephen McCaskill, an inmate of the Illinois Department of Corrections
(“IDOC”), previously incarcerated at Shawnee Correctional Center (“Shawnee”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that the defendants
violated his federal constitutional rights by incarcerating him beyond the date he was eligible for
mandatory supervised release (“MSR”). Plaintiff is no longer incarcerated, though he was at the
time he filed this lawsuit, so this Court will conduct a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
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(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted 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). The claim of entitlement to relief must cross “the
line between possibility and plausibility.” Id. at 557. Conversely, a complaint is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith
v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578
F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same
time, however, the factual allegations of a pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; certain claims in this action are subject to
dismissal.
The Complaint
In the Complaint (Doc. 1), Plaintiff alleges the following: on October 26, 2015, he
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informed the counselor that he had submitted parole plans for two different parole sites every
week for almost three months. (Doc. 1, p. 6). Plaintiff told Counselor Nance this information,
and Nance looked at the computer only to find that no new sites were recorded, only Plaintiff’s
brother’s house, which was pending, and another in Cicero, Illinois, that had been denied in July.
Id. The sites Plaintiff had submitted plans for were St. Leonard’s House and CG&G Associates,
in Chicago and Chicago Heights, Illinois, respectively. Id. Plaintiff’s parole date was on
November 6, 2015, so he believes Field Services employees were unprofessional, deliberately
indifferent, biased, hateful, and careless, as well as in violation of IDOC policies, in their failure
to log the proposed sites submitted by Plaintiff. Id. The counselor did not attempt to help
Plaintiff after he made this discovery, despite Plaintiff’s request that he call Field Services to
resolve the issue.
Plaintiff also wrote to Nolen in Field Services and Counselor Lynn about the issue, and
he spoke to Bob Allard, the Supervisor of Clinical Services, who wrote Plaintiff’s name down
and stated he had seen something from Plaintiff. Id. Allard told Plaintiff that he would send him
the papers he needed to fill out for a new parole site, but he never did. Id. Counselor Seips also
failed to respond to several requests Plaintiff submitted to her regarding his parole site and
asking her to send him parole resident request forms. (Doc. 1, p. 7). Defendant Nance did not
respond to a grievance that Plaintiff handed him on October 26, 2015. Id. Field Services
similarly did not respond to approximately fifteen request slips from Plaintiff to be placed on
their call line in order to get his parole situation resolved. Id. On November 6, 2015, Plaintiff’s
parole was considered violated by the Springfield Prison Review Board (“PRB”) for his failing
to have a place of residency to parole to, though Plaintiff believes this was due to Field Services
failing to enter Plaintiff’s requested parole sites. (Doc. 1, p. 8),

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On December 4, 2015, Plaintiff saw Counselor Reeder and informed her that his parole
date was passed and that he had placed slips to Field Services to parole to a halfway house.
(Doc. 1, p. 7). Reeder told Plaintiff he could not parole to a halfway house because he is a sex
offender, which Plaintiff knows to be false because the halfway houses he requested accept sex
offenders. (Doc. 1, pp. 7-8). Reeder then told Plaintiff that he had been put in for a halfway
house, and when Plaintiff questioned why a murderer was approved to parole to a halfway house
before him, Reeder stated loudly, in front of other prisoners, that it was because the other inmate
is a murderer, and Plaintiff is a sex offender. (Doc. 1, p. 8). This put Plaintiff in a very dangerous
situation, and several inmates called Plaintiff a rapist and pedophile and looked at him “crazy.”
Id. Plaintiff believes Reeder’s actions violated the Privacy Act. Id.
On December 3, 2015, Plaintiff received a Prison Review Board Notice of Parole/MSR
Violation Hearing. Id. On December 9, 2015, the hearing was held, and Plaintiff was served with
a Parole Violation Report that was typed up by Parole Agent Pate on November 6, 2015, and
signed by the Parole Supervisor Akpore on November 8, 2015. Id. The report stated that Plaintiff
had been charged with failure to comply with MSB rule number 5, failure to provide a host site
for intensive supervision. (Doc. 1, pp. 8-9). The report was false, as Plaintiff had provided host
sites, but they were never entered into the computer by Nolen. (Doc. 1, p. 9). Plaintiff believes
Pate and Akpore fabricated the report to cover up the situation and deprive Plaintiff of his
constitutional right to be free. Id. Pate stated that no suitable site could be found, and also stated
that the parole agency attempted to place Plaintiff at all of the places IDOC would pay for, but
these paid placements could not accept Plaintiff for any number of reasons. Id. As far as the
residences of Plaintiff’s family members, Pate said these sites did not provide adequate, intensive
supervision and were not acceptable. Id. Plaintiff claims that these excuses are lies often told to

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keep sex offenders incarcerated. Id.
On December 9, 2015, Plaintiff received a memorandum from Julie Tanner in the
Records Office telling Plaintiff to provide Field Services with the information of any other parole
site Plaintiff wanted to be checked. (Doc. 1, p. 10). Plaintiff submitted a site, Community Care
Nursing Home in Chicago, Illinois, that same day. Id. On January 12, 2016, Plaintiff saw
Counselor Reeder and asked her to check whether Field Services had entered Plaintiff’s new
parole site request into the computer. Id. Reeder showed Plaintiff that they had not entered any
that would accept Plaintiff. Id.
Plaintiff requests monetary damages from the defendants. (Doc. 1, p. 12).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide this pro
se action into four counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 1 –

Defendants subjected Plaintiff to cruel and unusual punishment
contrary to the Eighth Amendment by failing to release him on his
MSR date.

Count 2 –

Defendants deprived Plaintiff of a liberty interest without due
process, in violation of the Fourteenth Amendment, when they
failed to release him on his MSR date.

Count 3 –

Defendants violated Plaintiff’s Fourteenth Amendment Equal
Protection rights by treating prisoners who are not sex offenders
differently than sex offender prisoners, including Plaintiff.

Count 4 –

Reeder violated the Privacy Act (5 U.S.C. § 552a(b)) by stating
that Plaintiff is a sex offender within earshot of other inmates.

As discussed in more detail below, each count except Count 1 will be dismissed for
failing to state a claim upon which relief may be granted. Any other intended claim that has not
been recognized by the Court is considered dismissed with prejudice as inadequately pleaded
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under the Twombly pleading standard.
Count 1 – Eighth Amendment
The Eighth Amendment to the United States Constitution protects prisoners from cruel
and unusual punishment. See Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The Eighth
Amendment encompasses a claim that prison officials, acting with deliberate indifference, held
an inmate beyond the term of his incarceration without penological justification. See Armato v.
Grounds, 766 F.3d 713, 721 (7th Cir. 2014) (citing Campbell v. Peters, 256 F.3d 695, 700 (7th
Cir. 2001)). Claims under the Eighth Amendment have both an objective and subjective
component. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter, 501 U.S.
294, 302 (1991). The objective conditions must have resulted in an unquestioned and serious
deprivation of a constitutional right. Rhodes, 452 U.S. at 347; accord Jamison-Bey v. Thieret,
867 F.2d 1046, 1048 (7th Cir. 1989).
The subjective component of unconstitutional punishment focuses on the state of mind of
the defendant. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992); Wilson, 501 U.S. at 298;
see also McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994). In order to satisfy this second
requirement, a plaintiff must show that a defendant was deliberately indifferent to a substantial
risk of serious harm to the inmate. Farmer v. Brennan, 511 U.S. 825, 837, 842 (1994). In other
words, the prison official must have acted or failed to act despite the official’s knowledge that
his course of action (or inaction) could result in a violation of the prisoner’s constitutional rights.
Farmer, 511 U.S. at 842. “Deliberate indifference requires more than negligence, rather the
defendant ‘must meet essentially a criminal recklessness standard, that is, ignoring a known
risk.’” Armato v. Grounds, 766 F.3d 713, 721 (7th Cir. 2014) (quoting McGee v. Adams, 721
F.3d 474, 480-81 (7th Cir. 2013)) (other internal quotation and citation omitted).

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As to the objective component of this claim, Plaintiff claims that he was “violated,”
indicating that he was paroled merely on paper and returned to prison, as was the case with the
plaintiffs in Murdock v. Walker, No. 08-C-1142, 2014 WL 916992 (N.D. Ill. Mar. 10, 2014).
These facts satisfy the objective portion of Count 1. The remaining question is whether any
defendant was deliberately indifferent to the risk that Plaintiff’s incarceration would be
improperly extended.
An examination of the Complaint reveals acts of only two defendants that may support a
claim of deliberate indifference. Plaintiff notes that he spoke with Nance before his parole was
violated about the addresses he submitted not being entered into the computer, and Nance
refused to help him resolve the issue. (Doc. 1, p. 6). Plaintiff claims Nolen is responsible for
failing to enter these addresses he submitted. (Doc. 1, p. 9). Plaintiff also claims he wrote
multiple requests to Nolen and Lynn, and spoke to Allard who told him he would send him
parole site forms. (Doc. 1, p. 6). Plaintiff further alleges he wrote to Seips requesting Parole
Residence Request/Notification forms, but she never responded. (Doc. 1, p. 7). Plaintiff allegedly
spoke with Reeder only after his parole had been violated, and she told him that it appeared that
he had already been submitted for a halfway house. Id. Plaintiff also claims that Pate and Akpore
prepared and approved his Parole Violation Report, but he does not allege that they were
responsible for failing to let him out on parole. (Doc. 1, pp. 8-9).
There is no suggestion in the Complaint that the potential addresses submitted by
Plaintiff were suitable, aside from Plaintiff’s contention that these facilities accepted sex
offenders, and there is no indication that these sites were approved, or would have been
approved, by the relevant authority. In fact, Plaintiff does not identify the relevant authority
responsible for the decision to “violate” him at all.

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Based on the allegations, it is unclear where the fault may lie for the failure to release
Plaintiff from prison. 1 This could have been the result of negligence (which does not amount to
deliberate indifference), or the individual(s) at fault might have made significant efforts to seek
out a placement, only to find that the potential addresses were unsuitable, and there was no other
suitable space available, as Pate allegedly stated in the parole hearing. Plaintiff alleges, however,
that a large part of his not being released can be attributed to the failure of Field Services,
including Nolen, to enter his placement requests into the computer at the outset. If Nolen
deliberately failed to enter Plaintiff’s proposed parole sites into the computer, this could
potentially satisfy the subjective component of the deliberate indifference standard.
With respect to the other defendants, it is well established that “[f]or constitutional
violations under § 1983 ... a government official is only liable for his or her own misconduct.”
E.g., Locke v. Haessig, 788 F.3d 662, 669 (7th Cir. June 5, 2015). “This means that to recover
damages against a prison official acting in a supervisory role, a § 1983 plaintiff may not rely on a
theory of respondeat superior and must instead allege that the defendant, through his or her own
conduct, has violated the Constitution.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015)
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The discussion in Murdock of the shortcomings of the parole system in Illinois vis-à-vis sex offenders is instructive
as to who may be to blame for Plaintiff’s delayed release. Murdock v. Walker, No. 08-C-1142, 2014 WL 916992
(N.D. Ill. March 10, 2014). In a nutshell, the Illinois PRB is responsible for determining whether a prisoner has
served a sufficient portion of his sentence to be released on parole/mandatory supervised release, and if so, can order
his release. 730 ILL. COMP. STAT. 5/3-3-7. The PRB also sets the conditions for parole, and determines whether
parole should be revoked if a condition is violated. 730 ILL. COMP. STAT. 5/3-3-1. IDOC, which is an agency
independent from the PRB, retains custody of parolees and supervises them during their parole term. Before IDOC
may release an inmate on parole, it must determine whether an individual parolee is in compliance with all
conditions of his supervised release. These conditions include being housed in a “proper and approved residence.”
Murdock, 2014 WL 916992, at *9-10 (quoting 20 ILL. ADMIN. CODE § 1610.110(a)(1)). The Code directs that a
parolee “shall not be released” until suitable housing arrangements have been made. § 1610.110(a) (emphasis
added). Sex offenders face many statutory restrictions on where they may reside, such as the home’s proximity to
schools, parks, day care centers, and other known sex offenders. See 730 ILL. COMP. STAT. 5/3-3-7. Numerous sex
offenders who are otherwise eligible for parole – the class of Plaintiffs certified in Murdock – have been and are
continuing to be held in prison by IDOC officials because they lacked an approved residence, and thus could not
comply with the conditions of their parole. This has become known as the “turnaround practice” – an inmate is
technically “paroled,” but is turned around at the prison gate and returned to custody because he cannot be released
without a parole site. The Murdock court characterized this as a “Kafkaesque loop,” and observed, “The Plaintiffs
are caught in a system that requires the intervention of the Illinois legislature, not this Court.” Murdock, at *4, *15.
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(citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “An inmate’s correspondence to a prison
administrator may . . . establish a basis for personal liability under § 1983 where that
correspondence provides sufficient knowledge of a constitutional deprivation.” Perez, 792 F.3d
at 781-82 (citing Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“[A] prison official’s
knowledge of prison conditions learned from an inmate’s communications can, under some
circumstances, constitute sufficient knowledge of the conditions to require the officer to exercise
his or her authority and to take the needed action to investigate and, if necessary, to rectify the
offending condition.”)). “In other words, prisoner requests for relief that fall on ‘deaf ears’ may
evidence deliberate indifference.” Perez, 792 F.3d at 782.
Plaintiff’s claim that he directly requested help from Nance to remedy the failure of Field
Services, namely Nolen, to enter his requested addresses into the system prior to his MSR date,
only for Nance to refuse to help him, could state a claim for deliberate indifference on the part of
Nance for turning a blind eye to Plaintiff’s plight. Plaintiff’s allegations against the other
defendants do not state such a claim, however, as they are vague and lack any information
indicating these defendants were actually aware of a potential constitutional deprivation and
were capable of taking steps to remedy it. With these defendants, Plaintiff’s allegations do not
satisfy the Twombly pleading standard.
Thus, construing all allegations liberally in favor of Plaintiff, the Complaint states a
deliberate indifference claim against Nolen and Nance at this stage, because their allegedly
deliberate acts potentially resulted in an extension of Plaintiff’s incarceration. Count 1 will
therefore be allowed to proceed against them. Count 1 will be dismissed as to the other
defendants, however, for failure to state a claim upon which relief can be granted. Out of an
abundance of caution, this dismissal shall be without prejudice.

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Count 2 – Due Process
This claim presents the question of whether defendants deprived Plaintiff of a liberty
interest without due process when he was not released upon eligibility for MSR. Initially, the
Court must examine whether Plaintiff had a liberty interest protected by the Fourteenth
Amendment. A convicted prisoner has no constitutional right to be released from incarceration
before the expiration of his sentence. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979). While a state may create an expectation of parole that qualifies as a liberty
interest, see Board of Pardons v. Allen, 482 U.S. 369, 376 (1987); Heidelberg v. Ill. Prisoner
Review Bd., 163 F.3d 1025, 1026 (7th Cir. 1998), the Illinois Supreme Court does not view the
Illinois parole/MSR scheme as creating a liberty interest. See generally Hill v. Walker, 948
N.E.2d 601, 605-06 (Ill. 2011). The Seventh Circuit has recognized, however, that if an inmate
has been placed on parole, he has a liberty interest in retaining that status. See Domka v. Portage
Cnty., Wis., 523 F.3d 776, 781 (7th Cir. 2008); see also Morrissey v. Brewer, 408 U.S. 471, 482
(1972) (“the liberty of a parolee, although indeterminate, includes many of the core values of
unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee . . . . the liberty is
valuable and must be seen as within the protection of the Fourteenth Amendment.”).
As noted above, it appears that Plaintiff may have been paroled, if only as a formality,
before he was “readmitted” to the prison, though the cause, and whether this actually happened,
is unclear based on the pleadings. In this circumstance, Plaintiff may have had a protected liberty
interest if he was indeed paroled. See Murdock v. Walker, No. 08-C-1142, 2014 WL 916992, at
*6 (N.D. Ill. Mar. 10, 2014). Further, he would have been deprived of that interest when he was
not permitted to begin his parole/MSR on the scheduled date. Assuming the facts alleged show
that Plaintiff indeed had a liberty interest, in order to maintain a constitutional claim for loss of

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that liberty interest, Plaintiff also must show that one or more defendants deprived him of his
liberty without due process.
The Murdock court conducted a thorough analysis of the due process claim brought by a
class of plaintiffs, and that analysis applies equally to this case. Murdock, 2014 WL 916992, at
*6-12. Due process is “not a static concept,” but “requires government to follow ‘reasonable
procedures’ in making its liberty determinations.” Murdock, 2014 WL 916992, at *6 (quoting
Atkins v. City of Chicago, 631 F.3d 823, 827 (7th Cir. 2011)). The statutory scheme in Illinois
governing parole release and revocation complies with constitutional requirements that a parolee
be notified of a claimed parole violation and the evidentiary basis against him, be given an
opportunity to be heard and to present a defense and confront witnesses before a neutral hearing
body, and receive a written statement of the parole revocation decision and the evidence
supporting it. Id. at *6-7. The PRB is vested with authority to conduct revocation hearings, and
IDOC has no authority to do so. 20 ILL. ADMIN. CODE § 1610.140; 730 ILL. COMP. STAT. 5/3-39(c); Murdock, at *7. The PRB, however, unilaterally decided to stop conducting hearings for
sex offenders who were denied parole release due to the lack of an approved housing site,
because these hearings were a “charade.” Murdock, at *8. Thus, sex offenders who are not
released on parole on this basis do not always receive the process described in the state statutes,
though in this case it appears that Plaintiff received at least some portion of it. Despite the lack of
process, the Murdock court determined that the “turnaround practice” did not violate the
plaintiffs’ due process rights.
Notably, IDOC officials are following the law when they decline to release an inmate
who is eligible for parole but cannot satisfy this condition for his release. Murdock, at *8-9. The
Murdock court observed:

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[I]t is true that the Plaintiffs had a right to release once the PRB issued a release
order, but that right was subject to appropriate conditions being met. The
Plaintiffs did not satisfy a required condition, so the Defendants did not violate
the Plaintiffs’ right to release by complying with the State of Illinois’s
constitutional regulations preventing IDOC from releasing parolees without
proper housing.
Murdock, at *9.
The Murdock court also determined that the turnaround practice provides adequate notice
to prisoners who face the prospect of continued incarceration despite their eligibility for parole.
Id. at *9-10 (citing Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (due process clause
does not demand “perfect clarity and precise guidance”)). Prisoners are put on notice that IDOC
officials must approve their host site before they can be released, they are notified if their
proposed host site location is not approved, and if they disagree with the disapproval, they may
“challenge the determination or file a grievance.” Murdock, at *10. As such, the Murdock
plaintiffs were not deprived of a liberty interest without due process.
Plaintiff submitted several potential parole sites for himself. As is evidenced in his
Complaint, Plaintiff was aware that an appropriate placement would have to be found for him
before he could be paroled, as he submitted potential parole addresses well before his MSR date.
He therefore seems to have had advance notice of this condition. Plaintiff was “violated” on his
MSR date, but unlike the Murdock Plaintiffs, he alleges that he received notice and a hearing
soon thereafter. While Plaintiff is apparently frustrated that the grievances he filed regarding this
matter did not expedite his release from prison, and he believes Pate lied in his Parole Violation
Report, the fact that this procedure did not have a favorable outcome does not mean that he was
denied due process.
Further, the Complaint does not articulate any other procedural protections that should
have been afforded to Plaintiff in connection with the decision to retain him in IDOC custody,
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nor do the facts of this case suggest any. The basic requirements of due process are notice and an
opportunity to be heard. See, e.g., Goss v. Lopez, 419 U.S. 565, 579, (1975) (at a minimum, due
process requires “some kind of notice and . . . some kind of hearing”) (emphasis in original);
Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). As noted above, IDOC officials have no
authority to conduct a hearing with regard to a denial or revocation of parole, as that function is
reserved for the PRB. Plaintiff was still granted this opportunity, though, and he had a hearing
with notice. This Court also agrees with the Murdock court’s conclusion that the turnaround
practice provides adequate notice and opportunity to challenge the denial of release for sex
offenders who lack an approved housing site, even without such a hearing.
The Complaint does not state a cognizable Fourteenth Amendment claim against the
defendants for denying Plaintiff a liberty interest without due process. Count 2 shall be dismissed
with prejudice for failure to state a claim upon which relief may be granted.
Count 3 – Equal Protection
Plaintiff also alleges in his Complaint that he was discriminated against by the defendants
because he is a sex offender in violation of the Equal Protection Clause of the Fourteenth
Amendment. (Doc. 1, p. 7). “To show a violation of the Equal Protection Clause, plaintiffs must
prove that the defendants’ actions had a discriminatory effect and were motived by a
discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635–36 (7th Cir. 2001).
Actions may have discriminatory effect when they cause a plaintiff to be treated differently from
other similarly situated individuals. Id. at 636. Further, to state a claim for violation of the Equal
Protection Clause, plaintiffs usually must allege that they are members of a “suspect class.” Srail
v. Village of Lisle, 588 F.3d 940, 943 (7th Cir. 2009). “Prisoners are not a suspect class;
conviction of crime justifies the imposition of many burdens.” Johnson v. Daley, 339 F.3d 582,

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585-586 (7th Cir. 2003).
A plaintiff can also allege that the defendant discriminated against him in particular—so
called “class-of-one” claims. Such claims require the plaintiff to allege that “the plaintiff has
been intentionally treated differently from others similarly situated and there is no rational basis
for the difference in treatment.” Srail v. Village of Lisle, 588 F.3d 940, 943 (7th Cir. 2009). To
plausibly allege such a claim, the “plaintiff must negate any reasonably conceivable state of facts
that could provide a rational basis.” Jackson v. Village of Western Springs, 612 F. App’x 842,
847 (7th Cir. 2015).
Plaintiff claims the alleged discrimination is due to his label as a sex offender. The
specific allegedly discriminatory acts include a murderer being allowed to parole at a halfway
house while Plaintiff’s parole was considered violated and, generally, prison officials allegedly
taking deliberate steps to keep sex offenders incarcerated past their MSR dates. Plaintiff has not
alleged that he is in a suspect class, because sex offenders are not a suspect class. Further,
Plaintiff has not negated any reasonably conceivable set of facts that could provide a rational
basis for his being held in prison while other types of offenders were released, or his being held
in prison after his MSR date generally.
In the absence of these facts, Plaintiff has failed to state an equal protection claim upon
which relief may be granted. Count 3 shall therefore be dismissed. Out of an abundance of
caution, this dismissal shall be without prejudice.
Count 4 – Privacy Act
Plaintiff alleges that Reeder violated the Privacy Act, 5 U.S.C. § 552a(b), presumably by
stating within earshot of other inmates that Plaintiff is a sex offender. This claim does not
survive § 1915A review. The Privacy Act prohibits unconsented disclosures of information,

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specifically requiring that:
No agency shall disclose any record which is contained in a system of records by
any means of communication to any person, or to another agency, except pursuant
to a written request by, or with the prior written consent of, the individual to
whom the record pertains, unless [certain exceptions apply].
5 U.S.C. § 552a(b). The Privacy Act provides for a private cause of action against a federal
agency where an individual may recover monetary damages for a violation. 5 U.S.C.
§ 552a(g)(1). Plaintiff has not named a federal agency, or the United States, as a defendant in this
action, and a Privacy Act claim, where one exists, cannot be brought against an individual
official such as Reeder. Plaintiff’s Privacy Act claim will therefore be dismissed without
prejudice, though it will be dismissed with prejudice as against Reeder.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against NOLEN and
NANCE.
IT IS FURTHER ORDERED that COUNT 2 shall be DISMISSED with prejudice for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that COUNT 3 shall be DISMISSED without prejudice
for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that COUNT 4 shall be DISMISSED without prejudice
for failure to state a claim upon which relief may be granted, though it is dismissed with
prejudice as against REEDER.
IT IS FURTHER ORDERED that Defendants LYNN, ALLARD, SEIPS, REEDER,
PATE, and AKPORE shall be DISMISSED from this action without prejudice for failure to
state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
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NOLEN and NANCE: (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 the defendants’ place
of employment as identified by Plaintiff. If one of the defendants 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 the defendant pay the full costs of formal service, to the extent authorized
by the Federal Rules of Civil Procedure.
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.
Plaintiff shall serve upon the defendants (or upon 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 the defendant 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

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Judge Donald G. Wilkerson for further pre-trial proceedings. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Donald G. Wilkerson for disposition, pursuant
to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that 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. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. 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: May 26, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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