The opinion of the court was delivered by: Baker, District Judge.
This is a civil rights action brought under 42 U.S.C. § 1983
by the plaintiff, an inmate at the Pontiac Correctional Center.
The denial of the plaintiff's parole application on December
11, 1979, has sparked this attack on the constitutionality of
the Prisoner Review Board's actions as well as on the
constitutionality of the Illinois statute upon which the board
based its decision. The plaintiff seeks a declaratory judgment
that the Prisoner Review Board's actions and Ill.Rev.Stat. ch.
38, § 1003-3-5 are unconstitutional, a rule to show cause why
he should not be immediately paroled, compensatory damages,
punitive damages, and a preliminary injunction barring
retaliation for filing this civil rights action. The defendants
have moved to dismiss the plaintiff's complaint or, in the
alternative, for summary judgment. The plaintiff has also made
a motion for summary judgment.
Since the defendants have submitted matters outside of the
pleadings in support of their motion, Rule 56 of the Federal
Rule of Civil Procedure controls its disposition.
Fed.R.Civ.P. 12. under Rule 56, a motion for summary judgment
will be granted only when the pleadings and evidentiary
materials submitted by the parties reveal that there is no
"genuine issue" regarding any "material fact" and that the
movant is entitled to judgment as a matter of law. It is well
established that the party moving for summary judgment has the
burden of establishing the absence of any real dispute as to
the material facts of the case. Rose v. Bridgeport Brass Co.,
487 F.2d 804, 808 (7th Cir. 1973). Any doubt whether a genuine
issue of material fact exists will be resolved against the
movant. Id. It is in light of these basic principles that the
parties' motions for summary judgment must be evaluated.
I. Cognizability under § 1983
Citing Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973), the defendants contend that the plaintiff's
claim is properly the subject of a habeas corpus action, not
one under § 1983. In Preiser, the Supreme Court held that when
a prisoner is contesting the "fact or duration of his physical
confinement" and seeking immediate or earlier release, his
remedy is a suit for habeas corpus. Id. at 498, 93 S.Ct. at
1840. In petitioning for a rule to show cause why he should not
be immediately paroled, the plaintiff is attempting to procure
an immediate release from confinement. The granting of this
request for relief is foreclosed under Preiser.
The plaintiff, however, also seeks monetary relief and a
declaratory judgment. In Preiser, the Supreme Court in dicta
stated that claims for damages could properly be brought under
§ 1983. 411 U.S. at 494, 93 S.Ct. at 1838. This dicta was
reaffirmed in Wolff v. McDonnell, 411 U.S. 539, 94 S.Ct. 2963,
41 L.Ed.2d 935 (1974), where the Court also held that. Preiser
did not bar a declaratory judgment which would serve as the
basis for affording monetary relief. Id. at 555, 94 S.Ct. at
2974. The court may therefore proceed to adjudicate the
plaintiff's claims to the extent that he requests declaratory
judgments and monetary relief.
II. Statement of Reasons for Denying Parole
The plaintiff is presently serving a one-hundred to
one-hundred twenty-five year sentence for four counts of armed
robbery and one count of murder. On December 11, 1979, he was
denied parole because his release, in the opinion of the
Prisoner Review Board, would "deprecate the seriousness of the
offense or promote disrespect for the law." The plaintiff
asserts that this statement of the reason for denying him
parole is constitutionally insufficient under the due process
clause of the Fourteenth Amendment. In particular, the
plaintiff complains that the Prisoner Review Board has not
disclosed the specific facts of his
offense which support their conclusion that release would
deprecate the seriousness of the offense or undermine respect
for the law.
In order for the plaintiff to be entitled to the protection
afforded by the due process clause, he must have been deprived
by governmental action of a liberty or property interest. In
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct.
2100, 60 L.Ed.2d 668 (1979), the Supreme Court definitively
resolved that there is no inherent protectible liberty interest
in being granted parole which is subject to constitutional
protection. Id. at 7, 99 S.Ct. at 2103. The Supreme Court did,
however, acknowledge that such a protectible liberty interest
can be created by state statute and observed that the Nebraska
statute which stated that parole "shall" be granted "unless"
certain circumstances existed created such a protectible
It is significant that the Court explicitly emphasized the
"unique structure" of the Nebraska statute which vests in a
prisoner a right to parole which is subject to abridgement
only if certain limiting factors exist. Indeed, the Court of
Appeals for the Seventh Circuit has recognized that the
"shall/unless" language of the Nebraska statute was a
"crucial" factor in the Supreme Court's decision that the
Nebraska statute created a protectible expectation of parole.
Averhart v. Tutsie, 618 F.2d 479, 481 (7th Cir. 1980). See also
Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979).
The Illinois statute at issue here differs from the Nebraska
statute and provides as follows:
The Board shall not parole a person eligible for
parole if it determines that:
(1) there is a substantial risk that he will not
conform to reasonable conditions of parole; or
(2) his release at that time would deprecate the
seriousness of his offense or promote ...