The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER*fn1
Gus Jones ("Jones") sues Director Michael Lane ("Lane") of
the Illinois Department of Corrections (the "Department"),
alleging Lane violated the Fourteenth Amendment and 42 U.S.C. § 1983
("Section 1983") when he denied Jones placement in a
work release program while Jones was incarcerated at the East
Moline Correctional Center ("East Moline").*fn2 Jones's
Amended Complaint (the "Complaint") now advances three
1. Count I says Lane was arbitrary and
capricious in basing his decision on the length
of Jones's sentence and therefore violated
Jones's Fourteenth Amendment due process rights.
2. Count II charges Lane's decision deprived
Jones of equal protection of the laws because
prisoners with equal or greater sentences were
granted work release requests.
3. Count IV asserts Lane did not follow
established criteria for work release placement
in Jones's case, thereby violating Jones's due
Lane has now moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to
dismiss Jones's Complaint for failure to state a claim. For
the reasons stated in this memorandum opinion and order Lane's
motion is granted as to Counts I and IV but denied as to Count
Jones was confined to East Moline July 26, 1971 to serve
long sentences*fn5 for armed robbery and aggravated battery.
Some time before July 1, 1981*fn6 Jones requested placement
in a work release program, and on July 1 he was accepted into
such a program operated by the Salvation Army (Ex. A).
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
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 ...