United States District Court, Central District of Illinois
December 3, 1980
UNITED STATES OF AMERICA EX REL. WALTER L. MCCALVIN, JR., PLAINTIFF,
JAMES IRVING ET AL., DEFENDANTS.
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 disrespect
for the law; or
(3) his release would have a substantially
adverse effect on institutional discipline.
Ill.Rev.Stat. ch. 38, § 1003-3-5. The Illinois statute, unlike
the "unique" statute in Greenholtz, does not directly vest in a
prisoner a right to parole.*fn1 Since the statute does not
accord a right to parole, there is no protectible liberty
interest which can be violated by the state's denial of parole.
Therefore, the court cannot address the issue of the
sufficiency of the reasons for denying the plaintiff parole,
and summary judgment on this issue must be entered.
III. Unconstitutional Delegation of Powers
The plaintiff alleges that in denying him parole the
Prisoner Review Board has unconstitutionally assumed
legislative and judicial powers. The plaintiff argues that the
Prisoner Review Board has unconstitutionally overridden the
statutory provisions of Ill.Rev.Stat. ch. 38 § 1003-3-3 which
states that every person incarcerated for a felony shall be
eligible for parole after a specified period of time. The
plaintiff has already served this specified period of time.
The plaintiff's argument reflects a misunderstanding of the
statutory provisions dealing with parole. Ill.Rev.Stat. ch.
38, § 1003-3-3 states only that a prisoner will be "eligible"
for parole after serving the specified period of time not that
he is entitled to release. Release is contingent on the absence
of the factors delineated in Ill.Rev.Stat. ch. 38, § 1003-3-5.
Since the Board has found that release would deprecate the
seriousness of the plaintiff's offense, the plaintiff is not
entitled to release under the statute, and the Prisoner Review
Board has not unconstitutionally nullified the statute.
To place in the hands of the Prisoner Review Board the power
to determine the date of a prisoner's actual release from
confinement also does not constitute an unconstitutional
delegation of judicial power. In interpreting the Unified Code
of Corrections, the Illinois Supreme Court has observed that
the sentences imposed under it by the judiciary are sentences
of commitment to the Department of Corrections rather than
sentences of confinement to a penitentiary. People v. Williams,
66 Ill.2d 179, 187, 5 Ill.Dec. 582, 361 N.E.2d 1110 (1977).
When a person is released on parole, he is still subject to
this sentence of commitment. Hence, his release on parole is
not on abrogation of the judicially imposed sentence. The
powers vested in the Prisoner Review Board are therefore
constitutional, and the defendants are entitled to summary
judgment on this issue.
IV. Equal Protection
The plaintiff has also alleged that he was deprived of his
right to equal protection of the law when he was denied parole
because of the seriousness of his offense. Apparently the
plaintiff is asserting that other prisoners who have committed
equally serious offenses have been granted parole when they
first became eligible for it whereas the plaintiff was denied
parole. The defendants have not responded to this contention.
The court cannot say unequivocally that the plaintiff's
claim has no merit, yet there are insufficient facts alleged
to warrant the entry of summary judgment for the plain-tiff.
The defendants' and the plaintiff's motions for summary
judgment on this issue will accordingly be denied.
IT IS THEREFORE ORDERED that the defendants' motion for
summary judgment be, and hereby is, denied as to the
plaintiff's equal protection claim to the extent that the
plaintiff seeks a declaratory judgment and monetary relief.
IT IS FURTHER ORDERED that the defendants' motion for
summary judgment be, and hereby is, granted as to all other
IT IS FURTHER ORDERED that the plaintiff's motion for
summary judgment be, and hereby is, denied.