Davis v. Brum et al
ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud, granting 2 MOTION for Leave to Proceed in forma pauperis filed by Maurice Davis. Signed by Judge David R. Herndon on 9/27/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ILLINOIS DEPARTMENT OF
MEMORANDUM AND ORDER
Petitioner Maurice Davis, an inmate in the custody of the Illinois
Department of Corrections and currently housed at Menard Correctional Center,
brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his continued confinement. Petitioner contends that his parole was
wrongfully revoked and that he is currently serving an illegal sentence. Petitioner
left the “Request for Relief” portion of his petition blank, but presumably
Petitioner is seeking an order directing that he be released from IDOC custody.
This matter is now before the Court for a preliminary review of the § 2254
Petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States
District Courts. Rule 4 provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” After
carefully reviewing the Petition in the present case, the Court concludes that the §
2254 petition warrants further review.
In November 2012, Petitioner was convicted of burglary in Madison County,
Illinois (Case No. 12-cf-205). (Doc. 1, p. 6; Doc. 4, p. 1). Petitioner was sentenced
to a seven year term of imprisonment, to run concurrently with a state sentence
Petitioner was serving in Missouri. (Doc. 1, p. 6). Petitioner was transferred to
Missouri and completed serving his sentence in Missouri. According to the
Petition, the Illinois Department of Corrections (“IDOC”) and the Missouri
Department of Corrections communicated and jointly decided to release Plaintiff
from custody. Id. Plaintiff was released and was out on parole for 18 months. Id.
After approximately 18 months, the state’s attorney (Tracy Brum) 1 that
prosecuted Plaintiff’s burglary case (12-cf-205), determined that Plaintiff had been
released from custody too early. Id. A warrant was issued for Petitioner’s arrest.
Id. Thereafter, Petitioner was detained and confined to IDOC custody for an
additional 18 months. Id.
At one point in his Petition, Petitioner states that the challenged sentence
(18 months of confinement after Plaintiff was released on parole and in
connection with case No. 12-cf-205) was between January 2015 and August 2016.
The docket in Plaintiff’s underlying criminal action suggests that the state’s attorney’s last name
is actually spelled Baum as opposed to Brum.
(Doc. 1, p. 4). If this is correct, then Plaintiff’s Petition would appear to be moot.
However, IDOC’s database indicates that Petitioner is presently in custody in
connection with case No. 12-cf-205, with an expected release date of December
2017. This suggests that the Petition is not moot.2 The issue of exhaustion is
unclear at this time.
The Court concludes that the Petition survives preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts. Accordingly, respondent shall be ordered to answer the Petition or
otherwise plead. Further, in light of Petitioner’s approaching release date, the
Court will order an expedited response, as set forth in the disposition below.
Substitution of Proper Respondent
For habeas petitions challenging present custody, the proper respondent is
the “person who has the immediate custody of the party detained, with the power
to produce the body of such party before the court or judge.” Rumsfeld v. Padilla,
542 U.S. 426, 435 (2004) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)).
“[T]here is generally only one proper respondent” and “the default rule is that the
proper respondent is the warden of the facility where the prisoner is being held.”
Id. at 434-35. Consistent with Rumsfeld v. Padilla, Rule 2(a) of the Rules
Governing Section 2254 Cases requires that “[i]f the petitioner is currently in
custody under a state-court judgment, the petition must name as respondent the
state officer who has custody.”
Petitioner’s Motion for Settlement (Doc. 4) also suggests that the challenged term of confinement
has come to an end. Petitioner states that he is seeking damages for “547 days of confinement.”
(Doc. 4, p. 1). Nonetheless, further development of the record is necessary.
Petitioner is in custody at Menard, so the proper respondent to this action
is that facility's warden, currently Jacqueline Lashbrook. Accordingly, IDOC and
Tracy Brum (the state’s attorney in the underlying criminal action), shall be
dismissed from this action.
Motion of Complaint on Defendants and/or Motion for Settlement
Petitioner has filed a motion asking the Court to order a monetary
settlement for wrongful confinement and mental cruelty. (Doc. 4). Obviously, the
Court has no authority to order Respondent to agree to a settlement. Further, as
is explained below, monetary damages are not an available remedy in a habeas
“[W]hen a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from the imprisonment, his
sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). But a habeas corpus petition cannot be used to obtain monetary
damages in connection with a constitutional deprivation. Preiser, 411 U.S. at 499.
As such, Petitioner’s request for monetary damages is DENIED because that relief
is not available under the habeas statutes. Instead, such claims must be brought,
if at all, in a separate civil rights action pursuant to 42 U.S.C. § 1983. Graham v.
Broglin, 922 F.2d 379, 380-81 (7th Cir. 1991).
Petitioner’s Motion for Recruitment of Counsel (Doc. 3) is denied at this
time as premature. Counsel may be appointed in a habeas corpus proceeding only
if an evidentiary hearing is needed or if interests of justice so require. See Rule
8(c) Rules Governing Section 2254 Cases. Whether the interests of justice require
appointment of counsel in this case cannot be determined until after the Court
has had an opportunity to review and consider the respondent’s answer to the
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (Doc. 2) is
GRANTED based on the financial information provided with his motion.
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 shall proceed past preliminary screening.
IT IS FURTHER ORDERED that Respondent shall answer the Petition on
. This Order to respond does not preclude the State
from making whatever waiver, exhaustion, or timeliness arguments it may wish to
present. Service upon the Illinois Attorney General, Criminal Appeals Bureau, 100
West Randolph, 12th Floor, Chicago, Illinois shall constitute sufficient service.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
IT IS FURTHER ORDERED that this entire matter be REFERRED to
Magistrate Judge Clifford J. Proud for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
Respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs.
IT IS SO ORDERED.
Digitally signed by
Judge David R.
David R. Herndon
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