Board"), after reviewing the Clinical Coordinator's denial,
recommended Jones be placed in a work release program (Ex. C).
Lane, however, declined to concur in that recommendation,
approving the rationale originally advanced by Department's
Transfer Coordinator (Exs. C and D).
Thereafter Jones renewed his request. In July 1982*fn7 that
request was approved by East Moline's Warden, and in November
the Administrative Board again recommended Jones for work
release (Ex. E). But Lane again declined to concur, citing the
length of Jones's sentence (Exs. E and F).
There was other institutional input relevant to the work
release decision. In March Department's Prisoner Review Board
(the "Parole Board") had denied Jones parole over one member's
dissent (Ex. G). In November the Parole Board "highly
recommended" Jones's consideration for work release (Ex. H).
That recommendation preceded the November Administrative Board
work release recommendation that was then rejected by Lane
Counts I and IV
Assertion of Jones's substantive or procedural due process
claims requires him to identify a liberty interest denied by
state action (no property interest is even arguably
implicated). Such a liberty interest might arise from the Due
Process Clause itself or from state law and administrative
regulations. Hewitt v. Helms, ___ U.S. ___, 103 S.Ct. 864,
869-70, 74 L.Ed.2d 675 (1983).
But Jones admits (Ans.Mem. 4) the Constitution itself does
not confer any liberty interest applicable to his work release
claim. See Burbank v. Franzen, No. 80 C 3325, slip op. at 5
(N.D.Ill. March 16, 1981) (Marshall, J.). Jones also admits
(Ans.Mem. 4-5) neither relevant state statutes nor regulations
create any entitlement to work release because those statutes
and regulations grant state officials unfettered discretion in
awarding prisoners participation in work release programs.
Compare Olim v. Wakinekona, ___ U.S. ___, 103 S.Ct. 1741,
1747-48, 75 L.Ed.2d 813 and Hewitt, id., 103 S.Ct. at 871.
Compare also Shango v. Jurich, 681 F.2d 1091, 1099-1102 (7th
Cir. 1982) and Johnson v. Brelje, 701 F.2d 1201, 1205 (7th Cir.
1983). Nonetheless Jones seeks (Ans.Mem. 5-10) to find a state
law entitlement in either (1) the establishment of the state's
procedures themselves or (2) the ordinary course of events
following Administrative or Parole Board recommendations to
But the law is clear precedures themselves cannot create
substantive entitlements. Olim, 103 S.Ct. at 1748; Hewitt, id.
103 S.Ct. at 871; Shango, 681 F.2d at 1100-01; Jackson v.
Illinois Department of Corrections, 567 F. Supp. 1021 at 1024 &
n. 12 (N.D.Ill. July 1, 1983). And although Jones's latter
contention is clever, it amounts to a metaphysical tour de
force: Jones says because Lane usually exercised or exercises
his unfettered discretion in one way, somehow he has fettered
or fetters his discretion for the future. With apologies to
Gertrude Stein, however, discretion is discretion is
Accordingly Jones cannot establish a set of facts entitling
him to relief on his due process claims. Counts I and IV are
Lane says (Mem. 9-10) Jones's equal protection claim must be
dismissed because Jones does not allege unequal treatment
based on Jones's membership in a "suspect class" or group.
Lane relies on some loose language in Shango, 681 F.2d at 1104,
to support his notion the Equal Protection
Clause prohibits only discriminatory treatment based on state
This Court has recently noted the Equal Protection Clause is
not literally, nor has it been historically, limited to the
protection of groups. Ossler v. Village of Norridge,
557 F. Supp. 219, 223-24 & n. 6 (N.D.Ill. 1983). In terms it
protects "any person," and to the extent Shango suggests
otherwise, that case is not in accord with seminal
interpretations of the Clause. See Snowden v. Hughes,
321 U.S. 1, 7, 8, 10, 64 S.Ct. 397, 400, 401, 402, 88 L.Ed. 497 (1944);
Burt v. City of New York, 156 F.2d 791, 791-92 (2d Cir. 1946)
(L. Hand, J.). Indeed, when our Court of Appeals has focused
directly on the issue, it has squarely held an equal protection
claim does not require an allegation as to a suspect
classification (Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir.
1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59
L.Ed.2d 82 (1979)):
A state prisoner need not allege the presence of
a suspect classification or the infringement of a
fundamental right in order to state a claim under
the Equal Protection Clause. The lack of a
fundamental constitutional right or the absence
of a suspect class merely affects the court's
standard of review; it does not destroy the cause
Lane himself (Mem. 10) quotes Snowden, 321 U.S. at 8, 64
S.Ct. at 401 as confirming that equal protection extends to
unequal application of a facially fair regulation if "there is
shown to be present in it an element of intentional or
purposeful discrimination." This is not the occasion to dwell
on Jones's proof problems under that standard. Given the
favorable inferences to which his Complaint is entitled, his
allegations (Count II ¶¶ 19-20) of the "arbitrary and
capricious" difference in his treatment from that of similarly
situated inmates state an Equal Protection Clause claim. Count
II thus survives Lane's Rule 12(b)(6) motion.