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ANDERSON v. LUTHER

March 11, 1981

MICHAEL ANDERSON, PLAINTIFF,
v.
DENNIS LUTHER, WARDEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Grady, District Judge.

    MEMORANDUM OPINION

This cause comes before the court on motion by the federal defendants (Luther, Bettencourt and Marcadis, sued in their official and individual capacities) for dismissal, and motion by the state defendant (Irving, sued in his official and individual capacity) for dismissal or, in the alternative, for summary judgment. Fed.R.Civ.P. 12(b), 56. For reasons discussed below, we grant the motion of the federal defendants for dismissal, and grant in part and deny in part the motion of the state defendant for dismissal or summary judgment.

The facts, briefly summarized, are:

Plaintiff Anderson is a state prisoner presently incarcerated in the Metropolitan Correctional Center in Chicago, Illinois.*fn1 He was convicted of murder in 1970 and sentenced to 25-50 years in prison.

Plaintiff had a parole hearing in front of defendant Irving, Chairman of the Illinois Prisoner Review Board, in January 1980. At the time of this hearing, there was on his record an institutional violation for engaging in sexual acts with another, former, inmate. He had been charged with this conduct on December 21, 1979; defendant Bettencourt had delivered the "incident report" to him. On December 30, 1979, plaintiff had been found "guilty" of the institutional violation by the Institutional Disciplinary Committee, headed by defendant Marcadis. He was "sentenced" to ten days in segregation ("the hole"), which time had been spent on the sixth floor of the MCC pending the investigation, and was therefore considered served.*fn2 Plaintiff appealed the conviction to defendant Luther, Warden of the MCC, which appeal was denied.

At the parole hearing, the conviction for sexual acts was mentioned. See n. 2 supra. Plaintiff was denied parole on the stated basis that it would "depreciate the seriousness of the offense; murder." Plaintiff then appealed his conviction of the institutional violation to the Regional Director of the Federal Bureau of Prisons. His appeal was granted and the conviction was expunged from his record on March 17, 1980.

On February 25, 1980, plaintiff had requested a reconsideration of his denial of parole because one of his co-defendants, who had been sentenced to 14-20 years in prison, had been released on parole. This rehearing was denied. On April 9, 1980, plaintiff requested a rehearing of his denial of parole due to the expungement of the conviction for sexual acts from his record. This, too, was denied by the Illinois Prisoner Review Board, acting through defendant Irving.

Petitioner thereupon filed a petition for habeas corpus which has been dismissed this day as being moot. Case No. 80 C 1523. See n. 3 supra. In May 1980, plaintiff filed the instant action alleging deprivation of his constitutional rights by the four defendants.

Plaintiff, who appears pro se, asserts three causes of action against the defendants:

1. Detention in "segregation" as a result of his subsequently overturned conviction for engaging in sexual acts with a former inmate.

2. Denial of parole as a result of the improper conviction.

3. Denial of a parole rehearing after the institutional violation was expunged from his record.

Plaintiff seeks immediate release on parole or a rehearing on his parole eligibility, and damages of $10,000.00 from each defendant. We ...


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