The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Keven Lee Carter's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Carter is serving a term of parole at the Menard Correctional Center ("Menard"), a facility within the Illinois Department of Corrections ("IDOC"). He seeks to overturn a 2006 prison disciplinary decision finding him guilty of filing a frivolous lawsuit in violation of prison rules and revoking three months of good-time credit. Carter did not exhaust his state court remedies, but the Court excused that failure exhaustion in light of a state court's unreasonable delay in ruling on his case. See 28 U.S.C. § 2254(b)(1)(B)(ii). A Report and Recommendation ("Report"; Doc. 56) by Magistrate Judge Frazier recommends the Court grant the petition and order restoration of Carter's good time credit. The respondent objects to the Report (Doc. 57) and Carter has responded to that objection (Doc. 62).
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). The respondent objects to the Report in its entirety, so the Court examines the matter de novo.
The Court sets forth the factual background of this case assuming all the relevant facts alleged by Carter are true. This alleviates the need for a hearing to determine factual issues.
This case arose after Carter filed a 2005 lawsuit under 42 U.S.C. § 1983 complaining of improprieties in connection with his 2003 conviction for attempted aggravated criminal assault. The United States District Court for the Northern District of Illinois dismissed Carter's § 1983 suit for failure to state a claim in light of Heck v. Humphrey, 512 U.S. 477 (1994), because Carter's underlying conviction had not been vacated and his civil suit would undermine that conviction. The Court also noted the immunity of various defendants. The Court counted the dismissal as one of Carter's three allotted dismissals before he would be prohibited from proceeding in forma pauperis. See 28 U.S.C. § 1915(g).
When Julie Potts, the legal coordinator at Menard, received a copy of the order dismissing Carter's claim, she filed a disciplinary report against Carter for filing a frivolous lawsuit in violation of 730 ILCS 5/3-6-3 and 20 Ill. Admin. Code § 504A212.. The Illinois statute states:
If a lawsuit is filed by a prisoner in an Illinois or federal court against the State, the Department of Corrections, or the Prisoner Review Board, or against any of their officers or employees, and the court makes a specific finding that a pleading, motion, or other paper filed by the prisoner is frivolous, the Department of Corrections shall conduct a hearing to revoke up to 180 days of good conduct credit by bringing charges against the prisoner sought to be deprived of the good conduct credits before the Prisoner Review Board as provided in subparagraph (a)(8) of Section 3-3-2 of this Code.... 730 ILCS 5/3-6-3(d). The statute further defines a frivolous lawsuit to include a pleading that "lacks an arguable basis either in law or in fact" or asserts a claim that is "not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." 730 ILCS 5/3-6-3(d)(1)(A) & (C). The Administrative Code prohibits filing documents that violate 730 ILCS 5/3-6-3(d).
Carter received a written notice of his disciplinary charge on September 2, 2005. The following day, September 3, 2005, Carter asked the Adjustment Committee, which would be hearing his disciplinary report, to interview Patricia Leurs, a paralegal in the law library. Carter believes she would be able to testify about the limited access inmates like Carter had to the law library which Carter believes caused him to misapprehend the law and to file his meritless lawsuit. On September 7, 2005, IDOC's Adjustment Committee held a disciplinary hearing, found Carter guilty based on the reporting officer's account of the findings in the Northern District Court's order and recommended revoking three months of good-time credit. The Adjustment Committee's written summary report indicated that no witnesses were requested.
Carter filed a grievance regarding the proceeding, arguing that he was not allowed to call Leurs as a witness as he had requested four days before the hearing and that the Adjustment Committee denied his request for a continuance without explanation. He accused the Adjustment Committee of being partial because of the error in the summary report. The grievance officer recommended that Carter's grievance be denied because there was sufficient evidence for the Adjustment Committee to find Carter had committed the violation and because Carter had not requested a witness be interviewed when he first received the disciplinary report on September 2, 2005. The warden concurred with the grievance officer's recommendation, but the Administrative Review Board ("ARB") ordered the Adjustment Committee to rehear the disciplinary report.
Without giving Carter 24-hour written notice, the Adjustment Committee reheard the matter on November 28, 2005. It found Carter guilty and recommended the same three-month good-time credit revocation for the same reasons. Again, the Adjustment Committee's written summary report indicated that no witnesses were requested. As he had with the prior recommendation, Carter grieved this Adjustment Committee finding. He argued he was not provided 24-hour written notice of the rehearing and was not allowed to call witnesses at the proceeding. He stated that Leurs would have testified that Carter had a right to amend or replead his legal filings and that he was denied adequate access to the prison law library, which caused his filing in the Northern District of Illinois to be insufficient. It appears the ARB again remanded the matter for a new decision after receiving additional information.
On January 9, 2006, the Adjustment Committee held a third hearing on Carter's disciplinary report, still without hearing from Leurs and without giving Carter 24-hour written notice of the hearing, and came to the same conclusions for the same reasons. Again, the Adjustment Committee's written summary report indicated that no witnesses were requested. Carter grieved this decision as well, arguing he did not have 24-hour written notice, he was not called to the hearing and was not allowed to call witnesses. The grievance officer recommended that Carter's grievance be denied because there was sufficient evidence for the Adjustment Committee to find Carter had committed the violation, and the warden concurred.
Carter filed a petition for a writ of mandamus in the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois. The Circuit Court was the only court to rule on Carter's claim, and it dismissed them for failure to state a cause of ...