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Belk v. State

United States District Court, Seventh Circuit

September 23, 2013

CAMERON BELK, SR., Plaintiff,


J. PHIL GILBERT, District Judge.

On August 15, 2013, Plaintiff Cameron Belk, Sr., filed suit in this Court under 42 U.S.C. § 1983, alleging violations of his federally secured constitutional rights, in that Defendants have refused to properly calculate the time he should be required to remain on mandatory supervised release[1] ("MSR"). Consequently, he asserts he has served more than his required parole/MSR time, and should be discharged from parole. He requests this Court to order his immediate release, and further seeks monetary compensation for the excess MSR time he has been required to serve.

Now before the Court is Plaintiff's motion to proceed in forma pauperis ("IFP"), i.e., without prepaying the filing fee (Doc. 3). At the time of filing the complaint, Plaintiff had been released from prison, and was housed in a personal residence. As such, Plaintiff does not meet the statutory definition of prisoner[2] for purposes of the in forma pauperis statute, which states that "[t]he term prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h).

Under 28 U.S.C. § 1915(a)(1), a federal district court may allow a civil case to proceed without prepayment of fees, if the movant "submits an affidavit that includes a statement of all assets [he] possesses [showing] that the person is unable to pay such fees or give security therefor." Plaintiff has done so in the instant case. But the Court's inquiry does not end there, because 28 U.S.C. § 1915(e)(2) requires careful threshold scrutiny of the complaint filed by an IFP plaintiff.

A court can deny a qualified plaintiff leave to file IFP or can dismiss a case if the action is clearly frivolous or malicious, fails to state a claim or is a claim for money damages against an immune Defendant. 28 U.S.C. § 1915(e)(2)(B). The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When assessing a petition to proceed IFP, a district court should inquire into the merits of the petitioner's claims, and if the court finds them to be frivolous, it should deny leave to proceed IFP. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982).

The Complaint

Plaintiff was convicted by a Champaign County jury of two counts of aggravated criminal sexual abuse (a Class 2 felony) in 2008 (Doc. 2, p. 7).[3] He was sentenced to 42 months on each count, to be served concurrently. The trial judge informed Plaintiff on the record that he would be subject to a two-year period of MSR after serving his sentence, however, that information was not reflected on the judgment/sentence (Doc. 2, pp. 7-8; Doc. 2-2, pp. 5, 7).

Plaintiff appealed his sentence, and the appellate court remanded the matter to the trial court for resentencing. His sentence was then reduced to three years (concurrent), but again, the MSR term was not included in the judgment. The trial judge left that section blank (Doc. 2-2, p. 8).

On March 25, 2010, Plaintiff was released from prison, and he has been on MSR since that time (Doc. 2-2, p. 26). He notes that his original release date was January 12, 2010, but he was held in prison until March because he did not yet have an approved host site (Doc. 2-2, pp. 28-29). Had he been released on schedule and given the correct MSR time of two years, he would have completed his MSR on January 12, 2012. He now has been on MSR status for well over three years.

Plaintiff has made inquiries to the Illinois Department of Corrections, the Prisoner Review Board, parole officials, and others, in an effort to correct the MSR term to two years (Doc. 2, p. 7). He has been told that because the MSR term was left blank on his judgment, corrections officials automatically set the MSR period at four years. He was advised to seek an amended sentencing order in the trial court, which he did. However, the trial judge ruled on August 9, 2013, that the trial court was without jurisdiction to grant the relief sought (Doc. 2, p. 8). Plaintiff further claims that the Illinois Appellate Court, Fourth District, has similarly stated that it is without jurisdiction in the matter. Plaintiff asserts that "if no State entity assumes jurisdiction over this matter, then the Federal Courts must have jurisdiction." Id.

Finally, Plaintiff indicates the reason he has been unable to obtain the correction of his MSR term is that he has been "unduly targeted" as a penalty for reporting the trial judge to the Judicial Inquiry Board (Doc. 2, p. 7).

As relief, Plaintiff seeks an order that he be immediately released from parole/MSR, that he be awarded compensatory damages for the time he has spent on MSR in excess of two years, that he be relieved of the requirement to register as a sex offender, and that his conviction be sealed (Doc. 2, p. 13).


In reviewing Plaintiff's complaint, it appears that he did not intend to name the "State of Illinois" itself or the "Illinois Department of Corrections" ("IDOC") as Defendants. Instead, he identifies two individual Defendants (Sheila Bell and Glenn Jackson) as employees of the State of Illinois, IDOC, by way of description (Doc. 2, pp. 1-2). He also includes IDOC Director S.A. Godinez as a party. In the event that injunctive relief is ordered, the inclusion of Defendants Godinez, Bell, and Jackson will be sufficient to carry out the same. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for injunctive relief is the government official responsible for ensuring any injunctive relief is carried out). Further, neither a State nor a division of state government may be sued in a § 1983 action for money damages. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("neither a State nor its officials acting in their official capacities are persons' under § 1983"); see also ...

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