(1983). In Sayles, the court rejected prisoners' argument that the Illinois Interstate Corrections Compact violated the Illinois Constitution's transportation clause, which states that "no person shall be transported out of the State for an offense committed within the State." Sayles, 99 Ill. 2d at 125-26, 457 N.E.2d at 442. The court reasoned that the transportation clause is violated only if the transportation of prisoners constitutes cruel and unusual punishment. Sayles, 99 Ill. 2d at 128, 457 N.E.2d at 443.
The court found that the "express objective of the [Interstate Corrections Compact] is to serve the best interests of the inmates," since an inmate may be transferred only "when 'necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment.'" Sayles, 99 Ill. 2d at 128, 457 N.E.2d at 444 (quoting ILL. REV. STAT. ch. 38 P 1003-4-4 art. I (1981) (now 730 ILCS 5/3-4-4 art. I)). The court noted that Illinois prisons were dangerously overcrowded, which had resulted in numerous security and health problems within the prisons. Sayles, 99 Ill. 2d at 129, 457 N.E.2d at 444. It accepted the state's contention that the transfer of inmates to out-of-state facilities "is the only workable solution to these problems." Id. Accordingly, the court held that transfers of prisoners to out-of-state prisons pursuant to the Interstate Corrections Compact do not violate the Illinois Constitution's transportation clause. Id.
From the parties' pleadings and other submissions to the court, it appears that Wilson's incarceration in Illinois was not serving to rehabilitate him, but rather was resulting in his committing further crimes. In such a case, the transfer of Wilson to another state's prison to deter him from engaging in criminal conduct cannot be deemed cruel and unusual punishment. Rather, it is in Wilson's best interests to be prevented from engaging in conduct that will harm him or anyone else and add more time to his sentence.
The court finds that Wilson had no constitutional right or justifiable expectation to remain in an Illinois prison, and therefore that Peters did not violate Wilson's constitutional rights by authorizing Wilson to be transferred from an Illinois prison to an Arizona prison. The only question remaining is whether the IDOC was required to provide Wilson with notice and an opportunity to be heard prior to transferring him to an out-of-state prison.
As the Supreme Court held in Meacham, the United States Constitution "does not mandate a nationwide rule requiring certain procedural formalities, such as a hearing, prior to" a transfer from one institution to another. Shango v. Jurich, 681 F.2d 1091, 1098 (7th Cir. 1982) (citing Meacham, 427 U.S. at 225, 96 S. Ct. at 2538). "This is true even in the case of disciplinary transfers: the due process clause, in and of itself, 'does not require hearings in connection with . . . transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive.'" Shango, 681 F.2d at 1098 (quoting Montanye, 427 U.S. at 242, 96 S. Ct. at 2547). Thus, Wilson had no liberty interest in receiving a hearing prior to his transfer to Arizona, at least under the Constitution. Whether the state created such a liberty interest is another matter.
State statutes may create liberty interests that are entitled to procedural protection under the due process clause. Shango, 681 F.2d at 1099 (quoting Vitek v. Jones, 445 U.S. 480, 487, 100 S. Ct. 1254, 1261, 63 L. Ed. 2d 552 (1980)). The Illinois Interstate Corrections Compact creates no such liberty interest. Rather, it gives prison officials virtually unfettered discretion to transfer a prisoner, as long as the motives for the transfer are not improper. See 730 ILCS 5/3-4-4; Shango, 681 F.2d at 1098 n.13, 1100 n.16.
State administrative regulations also may give rise to a liberty interest. Shango, 681 F.2d at 1099. For example, IDOC regulations theoretically could bestow upon Wilson a liberty interest that warrants due process protection; however, they fail to do so. "A liberty interest is . . . a substantive interest of an individual; it cannot be the right to demand needless formality. In order to establish such an interest, a 'plaintiff must show a substantive restriction on the [official's] discretion.'" Id. at 1100-01 (quoting Suckle v. Madison General Hosp., 499 F.2d 1364, 1366 (7th Cir. 1974)).
IDOC regulations do not limit prison officials' discretion regarding interprison transfers, but "merely create mechanisms to be utilized by prison officials in effecting transfers." Shango, 681 F.2d at 1100, 1100 n.15. "The existence of such discretion precludes the implication of a liberty interest deserving of due process protection." Id. at 1100 (quotations omitted). "If officials may transfer a prisoner to another prison irrespective of what the inmate may establish at an administrative hearing, the Fourteenth Amendment does not demand that the state engage in a ritualistic hearing." Id. at 1101-02.
Because Wilson was not constitutionally entitled to any procedural protections before being transferred to Arizona, Peters, as director of the IDOC, did not violate Wilson's right to due process by transferring Wilson without notice or hearing.
b. February 1994 transport from Arizona to Illinois
A lawsuit against a government official in his official capacity is, in effect, a lawsuit against the government entity for which the official works. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55, 56 L. Ed. 2d 611 (1978); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). Therefore, Wilson's claim against Peters in his official capacity effectively is against the IDOC.
The Eleventh Amendment generally immunizes a state from suit for damages in federal court by a private party. Kroll v. Board of Trustees of Univ. of Illinois, 934 F.2d 904, 907 (7th Cir.), cert. denied, 502 U.S. 941, 112 S. Ct. 377, 116 L. Ed. 2d 329 (1991). State agencies are treated the same as states. Id. (citing Alabama v. Pugh, 438 U.S. 781, 781-82, 98 S. Ct. 3057, 3057-58, 57 L. Ed. 2d 1114 (1978) (per curiam); Gleason v. Board of Educ., 792 F.2d 76, 79 (7th Cir. 1986)). "[A] state agency is the state for purposes of the eleventh amendment." Id. (citing Davidson v. Board of Governors, 920 F.2d 441, 442 (7th Cir. 1990)).
Thus, the IDOC, a state agency, is entitled to eleventh amendment immunity against Wilson's claim for damages unless one of two exceptions applies. First, a state may waive its eleventh amendment immunity by "unequivocal language," and thereby consent to suit in federal court. Kroll, 934 F.2d at 907 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985)). A court will find such waiver "only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Atascadero, 473 U.S. at 239-40, 105 S. Ct. at 3146. The state of Illinois has not consented to being sued in federal court in the statute creating its Department of Corrections. See 730 ILCS 5/3-1-1 - 5/3-15-3; Knox v. McGinnis, 998 F.2d 1405, 1412 (7th Cir. 1993). Therefore, Illinois has not expressly and unequivocally waived the IDOC's eleventh amendment immunity.
Second, also by "unequivocal language," Congress may "use its enforcement powers under the fourteenth amendment to abrogate the states' eleventh amendment immunity." Kroll, 934 F.2d at 907 (citing Atascadero, 473 U.S. at 246, 105 S. Ct. at 3149 ("When Congress chooses to subject the States to federal jurisdiction, it must do so specifically") (other citations omitted)). Section 1983 actions do not fall under this exception; by enacting section 1983, Congress did not abrogate the states' eleventh amendment immunity. See Quern v. Jordan, 440 U.S. 332, 341, 99 S. Ct. 1139, 1145, 59 L. Ed. 2d 358 (1979) (section 1983 does not "override the traditional sovereign immunity of the States").
Since neither of the foregoing exceptions applies to Wilson's claim against Peters in his official capacity, sovereign immunity bars Wilson's damages claim against it.
The court notes that sovereign immunity is not available in the face of a claim for injunctive relief. See Knox, 998 F.2d at 1412-13. Wilson appears to ask for injunctive relief in his amended complaint, in which he asks that the court "order that all excessive, cruel and unusual punishment and mistreatments inflicted upon Plaintiff by each and all of the defendants be immediately stopped and corrected." (Am. Complt. P 74.D.) However, the February 1994 trip from Arizona to Illinois obviously occurred only once, in February 1994. "Federal courts do not, as a rule, enjoin conduct which has been discontinued with no real prospect that it will be repeated." Ragsdale v. Turnock, 841 F.2d 1358, 1366 (7th Cir. 1988). Thus, nothing remains for the court to enjoin.
Accordingly, the court grants summary judgment on Count V in favor of Peters in his official capacity.
For the foregoing reasons, the court grants defendants Howard Peters, III's, Willie Hayes', James Jenkins', and Raymond Miller's motion for summary judgment on Counts III, IV, and V of plaintiff's amended complaint, and enters judgment in favor of those defendants.
JAMES H. ALESIA
United States District Judge
Date: APR 17 1996