The opinion of the court was delivered by: Flaum, District Judge:
This matter comes before the court on the defendant's motion to
dismiss the complaint for failure to state a claim or,
alternatively, motion for summary judgment. For the reasons set
forth below, the motion for summary judgment is granted.
The plaintiff James Barksdale ("Barksdale") filed suit pro se
pursuant to 42 U.S.C. § 1983 (1978) against the defendants Gayle
Franzen ("Franzen"), Director of the Illinois Department of
Corrections ("the department"), and John Groves, Chief Record
Officer of the department.*fn1 Giving a liberal construction to the
allegations in the pro se complaint as required under Haines v.
Kerner, 404 U.S. 519, 524, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972),
Barksdale apparently alleges that the department has violated his
constitutional rights by failing to give him the amount of
good-time credit required under the new Illinois sentencing law
as construed by the Illinois Supreme Court in Johnson v. Franzen,
77 Ill.2d 513, 522, 34 Ill.Dec. 153, 157, 397 N.E.2d 825, 829
(1979). Barksdale also alleges that the defendants' failure to
properly compute his good-time credit has resulted in his name
not being submitted to the Illinois Prisoner Review Board.*fn2
The defendant Franzen filed a motion to dismiss for failure to
state a claim or, alternatively, a motion for summary judgment.
In support of his motion, Franzen contends that the department's
procedure for computing Barksdale's good-time credit has been
upheld by the Illinois courts as an appropriate implementation of
the new Illinois sentencing law and the Illinois Supreme Court's
mandate in Johnson v. Franzen, 77 Ill.2d 513, 522, 34 Ill.Dec.
153, 157, 397 N.E.2d 825, 829 (1979). Franzen also contends that
Barksdale's allegation regarding a hearing before the Illinois
Prisoner Review Board is moot since Barksdale already has
appeared before the board. The court will address these
contentions seriatim.
Prior to February 1, 1978, Illinois had a system of
indeterminate sentences under which prisoners convicted of a
felony were sentenced to minimum and maximum terms of
imprisonment. Ill.Rev.Stat. ch. 38, § 1005-8-1 (Amended 1978).
The department prescribed a schedule of good-time credits for
good behavior known as "statutory good-time credits". Id. §
1003-6-3. The department also awarded good-time credits known as
"compensatory good-time credits" to prisoners who performed
certain work assignments or participated in certain programs. Id.
§ 1003-12-5. The department then applied these good-time credits
to a prisoner's minimum term of incarceration to advance the date
of parole eligibility and to the prisoner's maximum term to
advance the date of release. Effective February 1, 1978, the
Illinois General Assembly amended the Illinois Unified Code of
Corrections ("the code") to replace certain indeterminate
sentences with fixed or determinate sentences. Ill.Rev.Stat. ch.
38, ¶ 1005-8-1 (1978). The amended code further provides that the
department is to give good-time credit to prisoners under a
day-for-day credit system rather than under the old compensatory
and statutory credit system. Id. ¶ 1003-6-3.
After the amended code came into effect, the department awarded
day-for-day credit to prisoners who were serving determinate
sentences, but continued to award statutory and compensatory
credits to prisoners who were serving indeterminate sentences. In
Johnson v. Franzen, 77 Ill.2d 513, 517, 34 Ill.Dec. 153, 154,
397 N.E.2d 825, 826 (1978), the plaintiff, a prisoner who received an
indeterminate sentence prior to February 1, 1978, filed suit to
require the department to award day-for-day credit to prisoners
serving indeterminate sentences. The plaintiff in Johnson
contended that the new day-for-day system would benefit him and
other prisoners similarly situated by resulting in earlier parole
eligibility and release dates. Id., 34 Ill.Dec. at 155, 397
N.E.2d at 827. The Illinois Supreme Court held that the amended
code requires that all prisoners — whether serving determinate or
indeterminate sentences — are to receive the benefit of the
day-for-day good-time credit system beginning February 1, 1978:
From February 1, 1978, forward, plaintiff is entitled
to one day of good-conduct credit for each day served
to the extent his prison conduct merits the award of
credits. The credits are to be applied to the minimum
and maximum terms. For time served prior to February
1, 1978, plaintiff is entitled to the statutory and
compensatory good-time credits to which he was
entitled under the old good-conduct-credit system.
Id. at 522, 34 Ill.Dec. at 157, 397 N.E.2d at 829.
Following the Illinois Supreme Court's directive in Johnson,
the department established a procedure for applying day-for-day
good-time credit to indeterminate sentences imposed prior to
February 1, 1978. The department first determined the amount of
time a prisoner had served prior to February 1, 1978. The
department next determined the amount of statutory good-time
credit earned by the prisoner based upon the amount of time
served prior to February 1, 1978. The department then computed
the amount of compensatory good-time which the prisoner had
earned prior to February 1, 1978. This total, pre-February 1,
1978, good-time credit amount then was subtracted from the
prisoner's court-imposed minimum and maximum sentences to
determine the amount of time remaining to be served on the
sentences. The department then applied day-for-day credit earned
after February 1, 1978 to these adjusted minimum and maximum
sentences. For some prisoners, this application of the
day-for-day credit system resulted in earlier parole eligibility
and release dates. For other prisoners, however, the department's
procedure of prorating statutory and compensatory good-time
earned prior to February 1, 1978 and then applying day-for-day
credit would result in longer periods of incarceration. Thus, as
to these prisoners, the department continued to apply the more
beneficial statutory and compensatory credit system.
The department's policy of continuing to apply the old credit
system to prisoners who would not benefit under the day-for-day
system was addressed by the Circuit Court of Will County,
Illinois in Henderson v. Franzen, No. 80 MR 90 (12th Dist. Aug.
7, 1980). In Henderson, the plaintiff, a prisoner serving an
indeterminate sentence imposed prior to February 1, 1978, filed
suit to require the department to use the day-for-day credit
system in computing the amount of good-time credit to be deducted
from his sentence. The circuit court concluded that requiring the
department to apply the day-for-day credit system to the
plaintiff's sentence would result in the plaintiff serving a
longer period of time than if his good-time were computed under
the old system. Id. at 2. The Henderson court construed the
Illinois Supreme Court's directive in Johnson as requiring the
application of the day-for-day credit system only in those cases
in which such application would be beneficial to the prisoner by
resulting in a shorter period of incarceration. Id. Moreover, the
circuit court concluded that, in amending the Illinois code, the
Illinois General Assembly did not intend to increase the sentence
of a prisoner already incarcerated. Id. at 3. Thus, the Hernandez
court upheld the department's procedure of not applying the
day-for-day credit system to those prisoners who would receive
more credit under the old statutory and compensatory credit
system. Id.
On appeal, the Illinois Appellate Court for the Third District
affirmed the circuit court's interpretation of Johnson and upheld
the department's procedure of applying the old credit system to
those prisoners who would not benefit under the day-for-day
system. Williams v. Irving, 98 Ill.App.3d 323, 53 Ill.Dec. 746,
424 N.E.2d 381, 386 (Ill.App.3d Dist. 1981).*fn3 The plaintiffs on
appeal in Williams further argued that the day-for-day good-time
credit system would be beneficial to them if their sentences were
adjusted properly for the good-time credits applicable under the
old sentencing system — that is, give the plaintiffs the full
amount of statutory good-time applicable to their full sentences,
regardless of
the time which they actually had served on those sentences. Id.
53 Ill.Dec. at 747, 424 N.E.2d at 385. The Illinois Appellate
Court for the Third District rejected this argument. In so doing,
the court concluded that the department was correct, when
recalculating sentences for the purpose of making new day-for-day
awards, in only crediting prisoners with a pro rata share of the
full good-time credit they would have received had the prisoners
completed their sentences. Id. The Williams court reasoned that
the pro rata share was based upon the time that the plaintiffs
had served prior to February 1, 1978 and that the amount was all
that the plaintiffs were entitled to under the old system. Id.
The appellate court further determined that the department's
procedure under the old system to "award" full statutory
good-time credit at the outset of a prisoner's sentence merely
was a bookkeeping procedure used by the department to show the
full statutory good-time credit which will have been earned by
the prisoner if he serves his time on good behavior, not a policy
by the department to actually award all of the good-time credit
at the outset of a prisoner's term. Id. Thus, the Williams court
upheld the department's policy of not applying the new
day-for-day credit system to those prisoners who would receive
more credit under the old system and rejected the plaintiffs'
contention that all good-time credit must be deducted under the
old system in order for them to benefit under the day-for-day
credit system. Id. 53 Ill.Dec. at 748, 424 N.E.2d at 386.
Applying the law to the present case, Barksdale's contentions
mirror the arguments raised by the plaintiffs in Hernandez and
Williams. Barksdale, who received an indeterminate sentence prior
to February 1, 1978, relies upon Johnson in challenging the
department's procedure of continuing to apply the old good-time
credit system instead of the new day-for-day credit system.
Barksdale also challenges the department's procedure of prorating
his good-time credit under the old system before applying
day-for-day credit. In support of his motion to dismiss or for
summary judgment, Franzen has submitted affidavits and other
matters outside the pleadings which show that Barksdale would be
subject to a longer period of incarceration if his good-time
credit were computed under the new day-for-day system. Franzen
also has established that Barksdale's good-time credit was
computed by the same procedure which was upheld by the Hernandez
and Williams courts as appropriate under the amended Illinois
code and the Illinois Supreme Court's directive in Johnson.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment must be entered in a case "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). Applying this standard to the ...