Beschorner v. Waggoner et al

Filing 5

IT IS HEREBY ORDERED that the Motion for Leave to Proceed in forma pauperis (Doc. 2) is DENIED and the Complaint (Doc. 1) is DISMISSED without prejudice for failure tostate a claim upon which relief may be granted. IT IS ORDERED that Defendants JA MES BALDWIN and STEPHANIE WAGGONER are DISMISSED from this action without prejudice. IT IS ORDERED that, should he wish to proceed with this case, Plaintiff must: (1) file a Motion for Leave to Proceed in forma pauperis that includes his updated fi nancial information or prepay the full $400.00 filing fee for this action no later than March 26, 2018; and (2) file a First Amended Complaint by the same deadline of March 26, 2018. Failure to comply with this deadline or the instructions set forth in this Order shall result in dismissal of this action with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Action due by 3/26/2018, Amended Pleadings due by 3/26/2018). Signed by Judge Nancy J. Rosenstengel on 2/26/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANLEY N. BESCHORNER,
Plaintiff,
vs.
STEPHANIE WAGGONER,
and JAMES BALDWIN,
Defendants.

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Case No. 18-cv-00379-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Stanley Beschorner is a former inmate of the Illinois Department of Corrections
(“IDOC”). He filed this civil rights action pursuant to 42 U.S.C. § 1983 after he was released
from prison on parole. 1 Plaintiff claims that IDOC officials miscalculated his sentence and
delayed his release from Vandalia Correctional Center (“Vandalia”) by 85 days. (Doc. 1). In
connection with this claim, Plaintiff names James Baldwin (IDOC director) and Stephanie
Waggoner (prison warden) as defendants. (Doc. 1, p. 1). He seeks monetary damages. (Doc. 1,
p. 6).
Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (“IFP Motion”)
under 28 U.S.C. § 1915. (Doc. 2). Because he was on parole when he filed this action, Plaintiff
was not a “prisoner,” as that term is defined under the in forma pauperis statute. See 28 U.S.C.
1

According to the inmate locator on the IDOC website (www.illinois.gov/idoc/offender), Plaintiff’s
parole date was January 4, 2018. See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill.
2006) (a court may judicially notice public records available on government websites) (collecting cases).
Although he signed the Complaint (Doc. 1, p. 6), Motion for Leave to Proceed in forma pauperis (Doc. 2,
p. 2), and Motion to Appoint Counsel (Doc. 3, p. 2) prior to this date on December 23, 2017, Plaintiff did
not file the action until seven weeks later on February 14, 2018. Apparently in anticipation of his release,
Plaintiff listed a private address on his Complaint and the same address on the envelope he used to mail
the documents to the Court on February 12, 2018. (Doc. 1, pp. 1, 7-8).

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§ 1915(h). Section 1915(h) defines “prisoner” as “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). Even so, 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.” 28 U.S.C. § 1915(a)(1).
The Court is required by 28 U.S.C. § 1915(e)(2) to deny IFP and dismiss the Complaint
at any time, however, if: (1) the allegation of poverty is untrue; (2) the action is frivolous; (3) the
action fails to state a claim; or (4) the action seeks monetary relief against an immune defendant.
Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1018 (7th Cir. 2013). 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). 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). 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

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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).
Discussion
For the reasons set forth below, the Court will deny the IFP Motion and dismiss the
Complaint. Plaintiff will have an opportunity to renew his request for IFP, however, by filing an
updated IFP Motion. He also will have an opportunity to re-plead his claims by filing an
amended complaint.
1.

IFP Motion
Plaintiff did not submit a complete IFP application. (Doc. 2). He answered most

questions in the application from the standpoint of an incarcerated person, despite the fact that he
filed this lawsuit six weeks after he was released on parole. For example, Plaintiff disclosed
income of $15.00 per month as an inmate porter. (Doc. 2, p. 1). He disclosed withdrawals from
his institutional trust fund account “only for commissary purpose[s].” (Doc. 2, p. 2).
Unfortunately, however, he did not provide a copy of his trust fund account statement or
information about his trust fund balance, citing the fact that he was “released.” (Doc. 2, p. 1). In
his Motion for Recruitment of Counsel, Plaintiff indicated that his financial status has changed
and warrants an amendment to his IFP application. (Doc. 3, p. 2). Again, however, he did not
provide the Court with an amended application. Further, Plaintiff described himself in the
Complaint as a “potential employee of Peoria Tube Forming Corp.” (Doc. 1, p. 6). Plaintiff
indicates that he made $18.60 per hour when he worked there prior to his incarceration and seeks
this amount as compensation for the 85 days he was held beyond his correct parole date. Id. If he
was employed there—or anywhere else—after being released on parole, Plaintiff should have
disclosed this information.

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Given his omission of all post-release financial information in the IFP application, the
Court is unable to determine whether Plaintiff was indigent on February 14, 2018. For this
reason, the IFP Motion shall be denied without prejudice. Plaintiff may either resubmit a
properly completed IFP Motion or prepay the full $400.00 filing fee for this action within 28
days, if he wishes to proceed. Failure to do one or the other shall result in dismissal of this
action. See FED. R. CIV. P. 41(b).
2.

Dismissal of Complaint Under § 1915(e)(2)
The Complaint fails to state a claim upon which relief may be granted. See 28 U.S.C.

§ 1915(e)(2) (mandating denial of IFP and dismissal of complaint under circumstances that
include the failure to state a claim for relief). According to the allegations in the Complaint,
Plaintiff was convicted of driving with a revoked license in Woodford County Case Nos. 15-CF166 and 16-CF-86. (Doc. 1, p. 4). He was sentenced to 18 months in IDOC custody and received
84 days of credit for time served in Woodford County Case No. 15-CF-166. (Doc. 1, pp. 4, 10).
He received a sentence of 18 months in IDOC custody, 85 days of credit for time served, and one
year of mandatory supervised release in Woodford County Case No. 16-CF-86. Id. Plaintiff
served his sentence at Vandalia beginning on October 18, 2016. (Doc. 1, p. 5).
Plaintiff alleges that IDOC officials failed to follow the state court’s sentencing order
when calculating his sentence. (Doc. 1, p. 4). Approximately two months after he arrived at
Vandalia, Plaintiff learned that he was only given credit for 85 days, when he should have
received credit for 85 days against one sentence and 84 days against the other. (Doc. 1, p. 5).
When Plaintiff attempted to address the matter through the grievance process, he was initially
unsuccessful. Id. The Administrative Review Board (“A.R.B.”) allegedly denied his grievance
and appeal as untimely. Id.

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Plaintiff filed a motion seeking clarification of the sentencing order in state court, and a
hearing was scheduled on April 25, 2017. (Doc. 1, pp. 15-23). The trial judge explained that he
“entered an order indicating that the two consecutive sentences imposed upon [Plaintiff] are to be
– are to run consecutive as the order previously states, and that the credit afforded to [Plaintiff]
for time previously served shall also be calculated in that manner, i.e., as two separate
sentences.” (Doc. 1, pp. 12, 17).
Plaintiff filed what appears to be a second round of grievances beginning on or around
September 20, 2017. (Doc. 1, p. 9). In a response dated September 22, 2017, a prison grievance
counselor indicated that the IDOC was in the process of seeking clarification from the court and
could not resolve the grievance at that time. Id. On November 7, 2017, Plaintiff’s appeal was
subsequently denied because it was still considered untimely and because Plaintiff provided no
additional “justification . . . for additional consideration” by the A.R.B. (Doc. 1, p. 11). This was
despite the fact that the A.R.B. was in possession of the state court’s order and transcript dated
April 25, 2017. (Doc. 1, pp. 12-23).
Plaintiff filed this action for money damages against IDOC Director Baldwin and Warden
Waggoner on February 14, 2018. (Doc. 1, pp. 1, 6). In the Complaint, Plaintiff alleges that he
was denied credit for a full 85 days of time served, due to the sentencing miscalculation by
IDOC

officials

at

Vandalia.

(Doc.

1,

p.

6).

The

IDOC

inmate

locator

(www.illinois.gov/idoc/offender) indicates that Plaintiff was released on January 4, 2018. See
also Bova, N.A., 446 F. Supp. 2d at 930, n.2.
A threshold inquiry in every action brought pursuant to 42 U.S.C. § 1983 is: (1) whether
the complained of conduct was committed by a person who was acting under color of state law;
and (2) whether the conduct deprived the plaintiff of rights, privileges, or immunities guaranteed

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by the Constitution. Toney-El v. Franzen, 777 F.2d 1224, 1226 (7th Cir. 1985) (citing Parratt v.
Taylor, 451 U.S. 527, 535 (1981)). These two elements are essential in any § 1983 action and
must be satisfied before a plaintiff can proceed with a claim.
The Complaint does not satisfy the first requirement. Plaintiff names Director Baldwin
and Warden Waggoner as the only defendants in this action. Unfortunately, however, he fails to
mention them anywhere in the statement of his claim. Given this omission, it is unclear what, if
any, role each defendant played in the miscalculation of his sentence, and he complains of no
flaw in the procedures used to calculate it.
Merely invoking the name of a potential defendant in the caption of a Complaint is not
sufficient to state a claim against that individual under § 1983. See Collins v. Kibort, 143 F.3d
331, 334 (7th Cir. 1998). Liability hinges on personal responsibility for the deprivation of a
constitutional right. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations
omitted). The doctrine of respondeat superior is not applicable to § 1983 actions. Id. Therefore,
Plaintiff cannot state a claim against Director Baldwin and Warden Waggoner simply because
they supervised the individuals who violated his constitutional rights. Instead, Plaintiff must set
forth allegations which suggest that each defendant was “personally responsible for the
deprivation of a constitutional right.” Id. He has not done so. Plaintiff’s failure to mention the
defendants anywhere in the statement of his claim provides grounds for their dismissal.
The Complaint also fails to satisfy the second requirement of a § 1983 action because the
Court is unable to find that either defendant’s conduct violated Plaintiff’s constitutional rights.
Claims brought under § 1983 to address sentence miscalculations or prolonged detention
generally arise under the Eighth and/or Fourteenth Amendment. The Eighth Amendment
prohibits cruel and unusual punishment. The Fourteenth Amendment prohibits governmental

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officials from depriving a person of life, liberty, or property without due process of law. There
are two kinds of due process: procedural and substantive.
Procedural due process protections are triggered when a protected liberty interest is at
stake. Prisoners have a liberty interest in being released on time, in conformity with their
sentence and other relevant laws. Toney-El, 777 F.2d at 1226 (plaintiff had constitutionally
protected liberty interest in being released from prison for good behavior); see also Figgs v.
Dawson, 829 F.3d 895, 906 (7th Cir. 2016) (same). Assuming a protected liberty interest is at
stake, the question becomes whether Plaintiff is “challenging the mistakes made by state
employees” or “the state procedures by which those mistakes were made.” Toney-El, 777 F.2d at
1227. If the claim falls into the former category, the court must consider whether the plaintiff had
adequate post-deprivation remedies under state law before finding a due process violation. See
Parratt v. Taylor, 451 U.S. 527 (1981); Hudson v. Palmer, 468 U.S. 517, 533 (1984). See also
Willis v. Tejeda, 2016 WL 6822662, at *4 (N.D. Ill. 2016) (citing Figgs, 829 F.3d at 907; Russell
v. Lazar, 300 F. Supp. 2d 716, 720 (E.D. Wis. 2004)). If it falls into the latter category, the court
does not need to consider whether adequate post-deprivation remedies were available before
finding a due process violation. Id.
Substantive due process protects against arbitrary or wrongful government actions,
“regardless of the fairness of the procedures used to implement them.” See Perrault v.
Wisconsin, 2015 WL 5032656 at *2 (W.D. Wis. 2015) (citations omitted). Where a claim is
covered by a more specific constitutional provision, however, such as the Eighth Amendment,
the Supreme Court has held that the claim must be analyzed under the standard appropriate to
that specific provision instead of substantive due process. Id. (citing County of Sacramento v.
Lewis, 523 U.S. 833, 842 (1998); Graham v. Connor, 490 U.S. 386, 395 (1989); Childress v.

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Walker, 787 F.3d 433, 438 (7th Cir. 2015)). Under the Eighth Amendment standard, the Seventh
Circuit has held that prolonged detention of a prisoner beyond the term of his sentence may rise
to the level of cruel and unusual punishment. Childress, 787 F.3d at 439; Armato v. Grounds,
766 F.3d 713, 721 (7th Cir. 2014); Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001). But
Plaintiff also must demonstrate that each of the defendants acted with deliberate indifference
when subjecting him to extended confinement. Under both the substantive due process clause
and the Eighth Amendment, a mistake in the calculation of a prisoner’s sentence generally falls
short of a § 1983 deprivation. Daniels v. Williams, 474 U.S. 327, 328 (1986) (due process clause
not implicated by negligent act of official causing unintended loss of liberty); Campbell, 256
F.3d at 700 (“[T]he courts that have recognized this problem have been careful to note that the
extended incarceration must also be the product of deliberate indifference before a constitutional
violation, as opposed to an error of state law, is implicated.”). Deliberate indifference is shown
when prison officials are aware of a sentencing miscalculation and the risk of unwarranted
punishment, but still fail to act. Perrault, 2015 WL 5032656 at *3 (citing Moore v. Tartler, 986
F.2d 682, 686 (3d Cir. 1993); Sample v. Diecks, 885 F.2d 1099, 1108-09 (3d Cir. 1989)).
Given that Plaintiff set forth no allegations describing the defendant’s conduct or the
nature of the claims against them, the Court finds that the Complaint fails to state a claim upon
which relief may be granted. Denial of the IFP Motion and dismissal of the Complaint are
warranted under § 1915(e)(2). But Plaintiff shall have an opportunity to file another IFP Motion
and a First Amended Complaint, if he wishes to proceed with this action. He is bound by the
deadline and instructions in the below disposition.

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Pending Motion
Plaintiff’s Motion to Appoint Counsel (Doc. 3) is DENIED. Plaintiff has not yet
established that he is indigent. He also failed to disclose any efforts to recruit counsel on his own
before seeking the Court’s help. See Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing
Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (requiring a plaintiff to first demonstrate
reasonable efforts to find counsel before requesting the Court’s assistance)). Further, he did not
offer any other reason why he is unable to represent himself in this matter, such as educational,
language, medical, or mental health barriers. Plaintiff’s Complaint and other pleadings are
organized and coherent. At this time, he appears capable of litigating this matter pro se.
Although the Motion is denied, the Court remains open to any future requests for counsel that
Plaintiff would like to file in this case.
Disposition
IT IS HEREBY ORDERED that the Motion for Leave to Proceed in forma pauperis
(Doc. 2) is DENIED and the Complaint (Doc. 1) is DISMISSED without prejudice for failure to
state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).
IT IS ORDERED that Defendants JAMES BALDWIN and STEPHANIE
WAGGONER are DISMISSED from this action without prejudice.
IT IS ORDERED that, should he wish to proceed with this case, Plaintiff must: (1) file a
Motion for Leave to Proceed in forma pauperis that includes his updated financial information or
prepay the full $400.00 filing fee for this action no later than March 26, 2018; and (2) file a First
Amended Complaint by the same deadline of March 26, 2018. Failure to comply with this
deadline or the instructions set forth in this Order shall result in dismissal of this action with
prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.

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R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e., 18-cv00379-NJR). The pleading shall present each claim in a separate count, and each count shall
specify, by name, each defendant alleged to be liable under the count, as well as the actions
alleged to have been taken by that defendant. Plaintiff should attempt to include the facts of his
case in chronological order, inserting each defendant’s name where necessary to identify the
actors. Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only
related claims in his amended complaint. Claims against different defendants that are unrelated
to one another will be severed into new cases, new case numbers will be assigned, and additional
filing fees will be assessed.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1
(7th Cir. 2004). The Court will not accept piecemeal amendments to a complaint. Thus, the First
Amended Complaint must stand on its own, without reference to any previous pleading, and
Plaintiff must re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. The First Amended Complaint is subject to review under 28 U.S.C. § 1915(e)(2), and
no service shall be ordered on any defendant until the Court completes this review.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $400.00 2 remains due and payable,
2

Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition
of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See

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regardless of whether Plaintiff elects to file a First Amended Complaint. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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).
In order to assist Plaintiff in preparing his updated Motion for Leave to Proceed in forma
pauperis and First Amended Complaint, the Clerk is DIRECTED to mail Plaintiff a blank IFP
motion and civil rights complaint form, as well as a motion for recruitment of counsel.
IT IS SO ORDERED.
DATED: February 26, 2018

____________________________
NANCY J. ROSENSTENGEL
United States District Judge

Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914,
No. 14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee.

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