Department of Corrections had
erroneously released him from prison earlier than he should have been
paroled. Over his objections, the Plaintiff was transported to the
Sangamon County Jail to await the arrival of officers from the Illinois
Department of Corrections.
Later that day, an unknown sheriff released the Plaintiff to the
custody of two unknown I.D.O.C. correctional officers. The Plaintiff was
transported to the Menard Correctional Center, although there was no
warrant or court order authorizing the Plaintiff's detention. Defendant
Welborn, the warden of the Menard Correctional Center, received the
Plaintiff into custody without mittimus papers or any other appropriate
On or about October 23, 1990, the Plaintiff received a copy of his
sentence calculation worksheet. The Plaintiff was not credited for the
time he had spent out on bond. The Plaintiff later talked to his
counselor, who promised that the time the Plaintiff had spent "on the
street" would be credited toward his release date because the Plaintiff
was not at fault for the mistaken early release. On December 12, 1990,
the Plaintiff was transferred to the medium security unit at the Logan
Correctional Center pursuant to administrative authorization.
On January 11, 1991, Defendant Caraway, a Menard correctional officer,
issued the Plaintiff a disciplinary report charging him with escape. The
report, prepared after an internal investigation, accused the Plaintiff
of accepting release from the Will County Jail, "knowing that he still
had time remaining to serve with the D.O.C." The Plaintiff appeared
before the Adjustment Committee, where his requests for witnesses and for
a continuance were denied. The Adjustment Committee found the Plaintiff
guilty of escape and imposed the maximum sentence; however, later that
day, Defendant Smith, a committee member, informed the Plaintiff that the
committee had reversed its decision and recommended further
investigation. The Plaintiff signed a document which he thought
authorized a continuance, but which actually turned out to be a
"disciplinary" transfer form.
The next day, the Plaintiff was transferred to the Pontiac Correctional
Center, a maximum security prison. Defendants Bosses, McGinnis and
Jockisch approved the transfer. There the Plaintiff received a
"Notification of Escape Memo" prepared by Defendant Caraway.
The Plaintiff grieved the "disciplinary" transfer, the untimely
disciplinary report, his security classification, and the calculation of
his release date. The Institutional Inquiry Board and the Administrative
Review Board confirmed the release date, the Plaintiff's security
classification as a "high escape risk, " and the transfer; the
disciplinary report has apparently been expunged.
Even accepting the facts alleged in the complaint as true, and even
viewing the facts in the light most favorable to the Plaintiff, the Court
finds no cause of action under 42 U.S.C. § 1983. Because the State
had legal custody of the already-convicted Plaintiff, he was not entitled
to any procedural due process before he was returned to prison. The Court
also finds neither the Plaintiff's transfer, nor his unresolved
disciplinary report, nor his designation as a high escape risk to be
matters implicating the Constitution.
The Court finds no constitutional violation stemming from the
Plaintiff's so called "false arrest." The Court first questions whether
the Plaintiff was "arrested" or simply "retaken." Many cases have
discussed the "retaking" of parole violators; the courts have
consistently held that such detentions do not amount to an "arrest" for
Fourth Amendment purposes. See discussion in United States v. Polito,
583 F.2d 48 (2nd Cir. 1978). Parolees have a liberty interest triggering
limited protections before they may be "retaken." See, e.g., US. v.
Sager, 881 F.2d 364, 366-67 (7th Cir. 1989) (dicta); Morrissey v.
Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).
The Plaintiff in the case at bar, however, was not entitled to the same
protections Zdue a parolee. The Plaintiff had been mistakenly released
rather than granted parole. Although the Department of Corrections did
not have physical custody of the Plaintiff, the D.O.C. nevertheless had
legal custody due to the Plaintiff's unfinished sentence. The Court finds
no cognizable liberty interest in remaining free. The local law
enforcement officers had probable cause to believe that the Plaintiff was
the person being sought by the Department of Corrections; consequently,
the officers properly detained him for the time necessary to contact
state officials and effect the Plaintiff's transfer back to state custody
so that a warrant could be properly executed. See Polito, supra. The
Court finds no cognizable constitutional violation in the Plaintiff's
detention and return to state custody.
The Plaintiff's sentence computation claim is also without colorable
merit. As discussed in another court's order regarding these facts,*fn1
the Plaintiff must (a) exhaust state remedies, and then (b) bring a habeas
corpus action if he seeks an immediate or more speedy release date.
Although the Court notes that the Plaintiff's sentence computation was
confirmed at several levels of review, a civil rights action is not the
proper vehicle for determination of the Plaintiff's proper release date.
Although the Court has found no Seventh Circuit case law controlling
the facts of this case, the Plaintiff's attention is also directed to
Sterling v. Maggio, 505 F. Supp. 1111 (M.D.La. 1981), a case where a
similar fact pattern was presented. In that [habeas] case, the petitioner
had been convicted of burglary and sentenced to three years
imprisonment; he was subsequently convicted of attempted armed robbery
and sentenced to fourteen years. The second sentence was ordered to run
consecutively with the three-year sentence. Prison officials mistakenly
released the petitioner at the expiration of his first sentence,
apparently because they did not have the commitment papers for the second
conviction. Over a year later, the plaintiff was apprehended and returned
to the prison to serve the remainder of his sentence.
The trial court in Sterling decided the case under a due process
"[I]t is not sufficient to prove official conduct that
merely evidences a lack of eager pursuit or even
arguable lack of interest. Rather the waiving state's
action must be so affirmatively wrong or its inaction
so grossly negligent that it would be equivocally
inconsistent with "fundamental principles of liberty
and justice' to require a legal sentence to be served
in the aftermath of such action or inaction."
Sterling, 505 F. Supp. at 1112. After reviewing the facts, the court,
noting that eighteen months was not an extended period of time, found
that the state had not demonstrated such a lack of interest that it would
have been inequitable to require Sterling to serve out his sentence. The
court further found that the petitioner was entitled to credit only for
the time he spent in jail in California (where he was "rearrested" and
held prior to transfer back to Louisiana), but not entitled to credit for
the period of time he was not in custody. The Court finds no reason for a
different holding under the circumstances of the case at bar.
The Plaintiff's challenge of the disciplinary report charging him with
escape also fails to state a viable claim. According to the ARB decision
attached as an exhibit to the complaint, the disciplinary report was
never acted upon after an investigation was ordered, and the Panel
dictated that the disciplinary report be expunged. Even assuming that
prison officials failed to remove the report from the Plaintiff's West
Page 1165 file as directed, the presence of an unadjudicated disciplinary
report in the Plaintiff's file does not implicate the Fourteenth
Amendment. Gomes v. Fair, 738 F.2d 517, 529 n. 10 (1st Cir. 1984). By the
same token, alleged violations which may have occurred during the
disciplinary proceedings do not state a cause of action since the
Adjustment Committee reversed itself.
Regardless of the disposition of the escape charge, the ensuing change
in the Plaintiff's security classification did not violate his due
process rights. The decision, based on prison official's belief that the
Plaintiff was at least partially blameworthy for his unauthorized
sabbatical from prison, does not appear to have been arbitrary or
capricious, nor was the decision punitive. Furthermore, as noted by the
official who rejected the Plaintiff's grievance, the Plaintiff may
petition for review of his high escape risk status every six months. The
Illinois Department of Corrections rules governing inmate security
classification are completely discretionary; there are no substantive
restrictions. See Ill.Admin.Code Tit. 20, § 503.20 (1987).
Consequently, no liberty interest attaches to an inmate's security
classification. See Kincaid v. Duckworth, 689 F.2d 702, 704-05 (7th Cir.
1982) (ruling on Indiana's similar provisions regarding prison security
classification). The Plaintiff's claim concerning his escape risk
classification does not state a cause of action under 42 U.S.C. § 1983.
The Plaintiff had no liberty interest in remaining at the Logan
Correctional Center. An inmate may be transferred for any
constitutionally permissible reason or for no reason at all. Meachum v.
Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976);
Matthews v. Fairman, 779 F.2d 409 (7th Cir. 1985). Prisoners are not
entitled to a hearing or other procedural due process with respect to
transfer decisions. Stango v. Jurich, 681 F.2d 1091, 1098 (7th Cir.
1982). Furthermore, a transfer to a prison where the conditions of
confinement are substantially less favorable does not state a
constitutional claim. Meachum, 427 U.S. at 225, 96 S.Ct. at 2538. The
fact that the Plaintiff had previously been approved for housing at a
medium security facility did not create any protected interest in
remaining at Logan.
The Plaintiff has also failed to set forth a chronology of events from
which retaliatory animus on the part of the Defendants could arguably be
inferred. See Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987).
Nothing in the record suggests that the Plaintiff was transferred due to
his attempts to be released from prison. To the contrary, the Plaintiff
was deemed a high escape risk because he failed to return to prison after
being released by Will County. Moreover, the Plaintiff's ipse dixit
statements that there was some vague conspiracy against him is wholly
unsupported. "Mere conjecture that there has been a conspiracy is not
enough to state a claim." Tarkowski v. Robert Bartlett Realty Co.,
644 F.2d 1204, 1206-07 (7th Cir. 1980). Id.
Ergo, even accepting the facts alleged in the complaint as true, the
Plaintiff has failed to make a "rational argument" for relief under
42 U.S.C. § 1983. As, more or less, an escapee from prison, the
Plaintiff had no protected interest in remaining free. Likewise, the
Court finds no constitutional violation in the Plaintiff's transfer, in
his designation as a high escape risk, nor in the unresolved disciplinary
ticket. Finally, the Plaintiff must file a petition for a writ of habeas
corpus if he wishes to challenge his confinement.
The Plaintiff's petition for leave to proceed in forma pauperis is
The complaint is DISMISSED.
This case is TERMINATED.