United States District Court, Northern District of Illinois
July 30, 1973
THOMAS C. PERRY, PLAINTIFF,
PETER B. BENSINGER ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendants' motion to dismiss the
This is an action for declaratory judgment, injunctive relief
and to redress alleged violations of constitutional rights
protected by 42 U.S.C. § 1983. This Court is alleged to have
jurisdiction pursuant to 28 U.S.C. § 2201 and 1343(3) and (4).
The plaintiff is Thomas C. Perry, who is presently confined in
the California State Prison, San Quentin, California, and is also
in violation of his parole granted by the State of Illinois.
The defendants are Peter B. Bensinger, Director of the Illinois
Department of Corrections; W.F. Kauffman, Jr., Executive
Secretary of the Illinois Parole and Pardon Board; Theodore P.
Fields, Chairman of the Illinois Parole and Pardon Board; and
John J. Twomey, Warden of the Illinois State Penitentiary,
The plaintiff in his complaint alleges the following facts,
1. On January 10, 1964 plaintiff was arrested by the
Chicago Police Department, and charged with the
of armed robbery. In the latter part of September,
1964, plaintiff entered a plea of guilty to the
above mentioned charge and was sentenced to a term
of not less than two nor more than eight years in
the Illinois State Penitentiary, Joliet, Illinois.
Plaintiff served three years, five months and
twenty-six days before being paroled. Pursuant to a
warrant lodged with prison officials, the plaintiff
was surrendered to the authorities from the State
of Wisconsin on July 7, 1967, and at that time
plaintiff was taken to the City of Kenosha,
Wisconsin to answer a charge of armed robbery. On
July 27, 1967 plaintiff entered a plea of guilty to
the Wisconsin charge and was sentenced to a term of
not more than three years in the Wisconsin State
Prison, Waupun, Wisconsin. After serving one year
of the Wisconsin sentence plaintiff was granted a
parole to be effective on July 30, 1968.
2. On October 29, 1968 plaintiff "violated" the
conditions of his Wisconsin parole by leaving the
State without permission. Plaintiff was arrested in
the State of California on January 9, 1969, and at
that time the State of Wisconsin immediately lodged
its detainer with the California authorities. It
was not until May 26, 1969 that the authorities of
the State of Illinois filed their detainer against
plaintiff. Under Illinois law an eight year
sentence expires in five years and three months,
barring loss of good time. The plaintiff claims
that since he allegedly lost no good time his
Illinois sentence would have expired on April 11,
3. The plaintiff claims that the above actions
violated his civil rights guaranteed by the
constitution in that:
a. The plaintiff's Illinois sentence expired, as a
matter of law, on April 11, 1969 and the defendants
did not file the Illinois warrant until May 26,
1969. Any extension of plaintiff's maximum release
date by the defendants, in accordance with the
circumstances described herein, constitute a denial
of the equal protection of the laws guaranteed to
citizens of the United States by the Fourteenth
Amendment to the United States Constitution; a
denial of due process of the law guaranteed to
citizens of the United States by the Fifth and
Fourteenth Amendments to the United States
Constitution; the infliction of punishment both
cruel and unusual in violation of the Eighth
Amendment of the United States Constitution; and a
deprivation of liberty without aid of counsel or
court process in violation of the Sixth Amendment
of the United States Constitution; and depriving
plaintiff of his liberty guaranteed him by the
First Amendment of the United States Constitution.
b. The State of Illinois is without jurisdiction
over the plaintiff by reason of its surrender of
the plaintiff to the State of Wisconsin. The State
of Illinois' exercise of jurisdiction over
plaintiff is unlawful and in violation of his
c. Since the Illinois arrest warrant has been
issued by the defendants against the plaintiff, he
has been treated in a manner different than others
in California State Prison. Plaintiff cannot
receive a reduction in custody to Median B, which
would allow him to have conjugal visits. The
plaintiff is denied the purported privilege of
living in the West-Block Honor Unit. The plaintiff
cannot hold any job that would remove him from the
confines of San Quentin. The plaintiff cannot have
his custody reduced to minimum which
would allegedly allow him to take advantage of the
many programs of prisoner rehabilitation furnished
by the state of California.
The plaintiff requests this Court to enter an order granting a
permanent injunction restraining and enjoining the defendants
from terming his parole violated since his sentence has expired,
directing the defendants to withdraw their detainer warrant
lodged against the plaintiff, and such other further relief as
this Court may see just and proper.
The defendants in support of their motion to dismiss the
complaint contend that the plaintiff does not have the right to
seek dismissal of the warrant until it is executed.
It is the opinion of this Court that the plaintiff's cause of
action rests on a faulty legal premise and should therefore be
The crux of the plaintiff's action is based on his calculation
that under Illinois law, his eight year sentence expires in five
years and three months barring loss of good time which means that
the detainer warrant against him by the State of Illinois on May
26, 1969 was invalid because his sentence expired on April 11,
1969. The plaintiff presumably bases his computation on Chapter
108 Section 45 of the Illinois Revised Statutes which deals with
rules and regulations for diminution of sentence. A parolee,
under Illinois law, such as the instant plaintiff, does not ipso
facto have his sentence expire so as to preclude any subsequent
parole violation when he has served only the bare minimum of time
required under Chapter 108 Section 45 of the Illinois Revised
Statutes. United States ex rel. Foley v. Ragen, 143 F.2d 774 (7th
Cir. 1944); Whitten v. Bennett, 141 F.2d 295 (7th Cir. 1944).
Under Illinois law, parole is a matter of grace and executive
clemency rather than a legal right; a prisoner cannot invoke it
at his will and has no right to demand that he be discharged
before the expiration of the maximum term of his sentence. People
ex rel. Jones v. Brantley, 45 Ill.2d 335, 259 N.E.2d 33 (1970);
People v. Nowak, 387 Ill. 11, 55 N.E.2d 63 (1944); People v.
Thompson, 381 Ill. 71, 44 N.E.2d 876 (1942). It is well settled
among federal courts that the computation of the time served by a
prisoner-parolee is clearly within the power of a state which has
no duty to credit time served at institutions in other states.
Hicks v. Nelson, 440 F.2d 989 (9th Cir. 1971); Singleton v.
Shafer, 313 F. Supp. 1094 (E.D.Pa. 1970); United States ex rel.
Brown v. Pa. Board of Parole, 309 F. Supp. 886 (E.D.Pa. 1970).
It is clear that the essence of the plaintiff's complaint rests
on his inaccurate calculation. Contrary to the plaintiff's
contention his parole did not terminate on April 11, 1969 and the
detainer warrant lodged against him on May 26, 1969 for parole
violation was proper because the plaintiff was still on parole.
Thus, the defendants in performing their duties as officials of
the State of Illinois and lodging the instant detainer warrant in
no way violated the plaintiff's constitutional rights. Further,
plaintiff's allegations as to his discriminatory treatment in the
California prison does not raise a claim that involves the
instant defendants and thus is not properly before this Court.
Accordingly, it is hereby ordered that the defendants' motion
to dismiss is granted.
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