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Wilson v. Kelkhoff

June 18, 1996

TIMOTHY WILSON, PLAINTIFF-APPELLEE/ CROSS-APPELLANT,

v.

GLENN KELKHOFF, HERBERT D. BROWN, TOMMY L. WELLS, AND DELANCEY H. MOORE, DEFENDANTS-APPELLANTS/ CROSS-APPELLEES.



Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 92 C 340 Gerald B. Cohn, Magistrate Judge.

Before POSNER, Chief Judge, and COFFEY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

ARGUED NOVEMBER 29, 1995

DECIDED JUNE 18, 1996

Timothy Wilson filed a complaint under 42 U.S.C. sec. 1983 against an employee of the Illinois Department of Corrections and three members of the Illinois Prisoner Review Board, alleging that they violated his fourteenth amendment right to due process when they revoked his mandatory supervised release. The case was tried to a jury, and Wilson prevailed, securing compensatory and punitive damages. The defendants appeal the denial of their motion for judgment as a matter of law, arguing that they are entitled to either absolute or qualified immunity. Wilson cross-appeals, challenging the magistrate judge's decision to grant him less in attorney's fees than he requested. We vacate both the judgment in Wilson's favor and the award of attorney's fees.

I.

On June 28, 1989, Wilson was convicted of forgery and sentenced to two years in an Illinois state penitentiary. *fn1 Wilson's scheduled mandatory supervised release ("MSR") date was January 21, 1990. While Wilson was serving his sentence, Missouri lodged a detainer against him. He initiated proceedings under the Agreement on Detainers, 730 ILCS 5/3-8-9, to travel to Missouri and resolve the pending criminal charge.

On November 13, 1989, Wilson was transported to St. Louis for trial. He was convicted and, on January 17, 1990, sentenced to a term to run concurrent with his Illinois sentence and expire on the same date (four days later). On January 18, while Wilson was still in custody in Missouri, the Missouri authorities presented him with an Illinois MSR agreement that had been prepared by Illinois officials and forwarded to Missouri for Wilson's signature. The agreement provided that Wilson "shall not leave the state or county without prior written permission of [his] agent."

Wilson refused to sign the agreement after discussing the matter with his attorney. Wilson believed that if he signed the agreement while in Missouri he would be in immediate violation of his supervised release because the agreement provided that it was a violation for him to leave Illinois without permission. Wilson told the Missouri officials that he would sign the agreement once he was returned to Illinois. They offered him the agreement three more times during his stay in Missouri, but he still refused to sign it.

Wilson was not released on January 21. Instead, he was returned to Illinois custody at Menard Psychiatric Center. On January 23, Wilson met with Glenn Kelkhoff, the Field Services Supervisor at Menard. Kelkhoff had been in contact with a St. Louis police officer who informed him that Missouri officials had been unsuccessful in getting Wilson to sign the agreement. Based on the fact that Wilson refused to sign the MSR agreement in Missouri, Kelkhoff had already prepared a violation report and notice of charges recommending that Wilson's supervised release be revoked on the ground that he had failed to sign the MSR agreement. During the meeting with Kelkhoff, Wilson requested that Kelkhoff allow him to sign the agreement in Illinois. Kelkhoff refused and presented Wilson with the notice of charges and violation report. Wilson then waived his right to a preliminary hearing.

Wilson's final revocation hearing was held on February 14, 1990. Herbert Brown, a member of the Illinois Prisoner Review Board, was the only person other than Wilson present. *fn2 Wilson did not receive any prior notice of the revocation hearing. Brown identified himself as being "with the Prisoner Review Board" but did not specifically tell Wilson that he was conducting the final revocation hearing. Wilson was confused about Brown's actual status; Wilson thought he was a parole counselor or investigator. Brown did tell Wilson that Brown would "be consulting with two other members of the Prison [sic] Review Board" and that "[w]e will make a decision on what is to be done in this particular case." However, Brown also said, in response to Wilson's question of when he would be released: "Well, that's entirely up to the Board. I have no control over your release." Wilson was not provided an opportunity to prepare and present witnesses, although he was afforded the opportunity to explain his failure to sign the agreement in Missouri. He gave several reasons, but he did not give the reason he asserts in this litigation: that he was concerned he would be in immediate violation of his supervised release if he signed the agreement while in Missouri.

Following the hearing, Brown consulted with Delancey Moore and Tommy Wells, two other members of the prisoner review board, and they decided to revoke Wilson's supervised release. Shortly thereafter, Wilson received a copy of the board's decision, dated February 13, 1990, which stated that the board had relied upon Kelkhoff's report in reaching its decision to revoke his supervised release because he had violated "Rule No. 1." The board's decision required Wilson to remain in prison until the expiration of his full sentence on July 20, 1990.

On April 28, 1992, Wilson brought suit against Kelkhoff, Brown, Moore, and Wells *fn3 under 42 U.S.C. sec. 1983, alleging that Kelkhoff's decision to provide him the agreement in Missouri and Kelkhoff's decision to recommend revocation for Wilson's failure to sign in Missouri, as well as the procedures surrounding both the final revocation hearing conducted by Brown and the board's decision to revoke his supervised release, violated his right to due process. The parties consented to a trial before a magistrate judge.

Defendants filed a motion to dismiss under FED. R. CIV. P. 12(b)(6), arguing that Wilson's complaint failed to state a claim because, among other things, Brown, Moore, and Wells were entitled to absolute or qualified immunity and Kelkhoff was entitled to qualified immunity. The magistrate judge denied the motion to dismiss without discussing the immunity arguments. Defendants then filed a motion for summary judgment, raising the same immunity arguments. The magistrate judge never ruled on the summary judgment motion. The magistrate judge granted Wilson leave to amend his complaint to provide that in addition to violating his right to due process, ...


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