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RIAL v. MCGINNIS

January 16, 1991

LARRY RIAL, Plaintiff,
v.
KENNETH McGINNIS, et al., Defendants



The opinion of the court was delivered by: SHADUR

 Larry Rial ("Rial") seeks leave to file his pro se Complaint under 42 U.S.C. § 1983 ("Section 1983") without payment of the filing fee. For the reasons stated in this memorandum opinion and order, such leave is denied and this action is dismissed.

 Every pro se litigant seeking permission to proceed in forma pauperis has two potential barriers to cross before his or her formal entry into the federal courthouse:

 
1. an appropriate showing of poverty and
 
2. the presentation of a claim that is non-"frivolous" in the legal sense defined by Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989), even when it is given the generous reading that case requires.

 Rial has no problems with the first of those requirements, *fn1" but he founders at the second step on all seven of the counts that he seeks to advance.

 " Habeas"-Type Claims

 Four of Rial's claims sound essentially in the nature of petitions for habeas corpus relief. This opinion will address those claims first, then turn to the more conventional Section 1983 counts.

 Complaint Count 1 contends that Rial should be receiving 90 days of meritorious good time for each of the three sentences he is now serving (rather than just one 90-day credit for the three cases together). As part of his requested relief, Rial urges that this Court (1) order the Illinois legislature to repeal the statute that allows the Illinois Department of Corrections ("IDOC") to consolidate felony cases *fn2" and (2) order IDOC to give felons the opportunity to earn 90 days of meritorious good time on each of their sentences.

 In a related area, Complaint Count 3 asserts discrimination by the Illinois General Assembly in having specified who can and who cannot earn additional meritorious good time. Rial asks this Court to order that all felons be allowed the right (or at least the opportunity) to earn additional meritorious good time.

 Complaint Count 4 charges that a recent Illinois statute is discriminatory because certain inmates, due to the crimes for which they are incarcerated, cannot earn 52 days a year of good time for attending school or other educational classes. Rial asks this Court to order that all felons be allowed the right (or again at least the opportunity) to earn that additional meritorious good time.

 Finally in this "habeas"-type category of claims, Complaint Count 7 charges that the Illinois mandatory supervised release law is improper, illegal and unconstitutional because it operates to force an inmate to serve more time than the period to which he was actually sentenced. *fn3" Rial urges this Court to order that all felons be credited with the time they must serve on parole when they begin to serve their sentence, so that they will be released in time to serve their parole terms without going over the sentence imposed by the court.

 All four of those claims may be grouped together for analytical purposes, for each of them seeks relief that would effectively reduce the term of Rial's confinement -- and a state prisoner can obtain such relief from a federal court only by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") ( Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986)). Just as importantly for present purposes, before any such state prisoner may proceed even with such a petition, he must exhaust his state judicial remedies (Section 2254(b); Graham v. Broglin, 922 F.2d 379, 1991 U.S. App. LEXIS 87, at 2 (7th Cir. 1991)).

 In this instance, other than Rial's filing of grievances with the prison administration (a step that does not satisfy the Section 2254(b) mandate that all available state judicial remedies be exhausted), he has made no showing of any attempt to invoke the available state remedies (see generally Rogers v. Prisoner Review Board, 181 Ill. App. 3d 1039, 1041, 537 N.E.2d 1106, 1107, 130 Ill. Dec. 777 (3d Dist. 1989); Crump v. Illinois Prisoner Review Board, 181 Ill. App. 3d 58, 536 N.E.2d 875, 129 Ill. Dec. 825 (1st Dist. 1989); Freeman v. Lane, 129 Ill. App. 3d 1061, 1064, 473 N.E.2d 584, 586, 85 Ill. Dec. 216 (3d Dist. 1985)). *fn4" ...


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