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PERRY v. BENSINGER

July 30, 1973

THOMAS C. PERRY, PLAINTIFF,
v.
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 complaint.

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, Joliet, Illinois.

The plaintiff in his complaint alleges the following facts, inter alia:

  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,
    1969.
  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
    constitutional rights.
    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 ...


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