complaint alleges no inculpatory evidence, other than the evidence relied upon by the Committee, upon which the Board relied in affirming the Committee's action. Therefore, according to the complaint, the Board, like the Committee, did not have "some evidence" to support its decision. Accordingly, defendants' motion to dismiss Count V must be denied.
COUNT VIII: CONSTITUTIONALITY OF RULE 504, SECTION 501
In Count VIII, plaintiff alleges that defendants Scott, Jordan, Mussatto, and O'Leary violated plaintiff's Fifth and Fourteenth Amendment right to due process by finding him guilty of violating Department of Corrections Rule 504, Section 501 (the "Rule"). (Complaint, paras. 63-65.) The Rule prohibits inmates from "committing any act which would constitute a violation of State or Federal law." (Complaint, Exhibit K.)
The Due Process Clause states that no state may "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, section 1. Plaintiff is apparently claiming that finding him guilty of violating the Rule deprives him of a liberty interest. Liberty interests protected by the Fourteenth Amendment may arise either from the Due Process Clause itself or the laws of the states. Hewitt, 103 S. Ct. at 869. However, plaintiff has not identified the constitutional or state-created liberty interest of which he has allegedly been deprived.
The Due Process Clause itself does not support plaintiff's claim. Plaintiff is apparently claiming that the Rule infringes an inmate's due process rights because the Rule allows disciplinary action without a prior conviction under state or federal law based upon proof beyond a reasonable doubt.
Plaintiff's interpretation of the Rule is incorrect. A violation of Rule 504, Section 501 does not require an indictment or conviction under state or federal law. The Rule simply refers to state and federal law in order to describe the types of behavior that the Department of Corrections has determined constitute a violation of prison rules. Therefore, like any prison disciplinary rule violation, a finding of a Rule 504, Section 501 violation satisfies the requirements of due process if there is "some evidence" that an act which constitutes a violation of federal or state law has occurred. See Superintendent, 105 S. Ct. at 2774. A higher level of proof -- such as a state or federal court conviction based upon proof beyond a reasonable doubt -- is not constitutionally required. Thus, plaintiff has not been deprived of a constitutionally guaranteed liberty interest.
Similarly, state law does not support plaintiff's claim. An Illinois law entitles prisoners to receive one day of good time credit for each day of service in prison. Ill. Ann. Stat. ch. 38, para. 1003-6-3(a) (2) (Smith-Hurd Supp. 1990). However, the Department of Corrections may prescribe rules and regulations for revoking good time credit. Ill. Ann. Stat. ch. 38, para. 1003-6-3(c) (Smith-Hurd Supp. 1990). Rule 504, Section 501 is such a rule. Plaintiff's state-created right to good time credits is limited in that credits may be revoked when prison rules, like Rule 504, Section 501, are violated. If the Committee finds that some evidence exists that plaintiff has violated the Rule, revocation of his good time credits does not deprive plaintiff of a state-created liberty interest.
Rule 504, Section 501 does not deprive plaintiff of a constitutionally- or state-created liberty interest. Thus, Rule 504, Section 501 does not violate due process. Accordingly, Count VIII must be dismissed.
For the foregoing reasons, Counts I, II, VI, VII, and VIII of plaintiff's complaint are DISMISSED. Defendants' motion to dismiss Counts III, IV, and V is DENIED. Defendants shall file an answer to the remaining counts of plaintiff's complaint in compliance with Local Rule 9(a) within fourteen days of this order. The case is set for status on October 16, 1990 at 10:00 a.m.