United States District Court, S.D. Illinois
ANDREW P. DUBOIS, #B-69761, Plaintiff,
LEANN L. WHITTLER, and NICK LAMB, Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge
Andrew DuBois, an inmate of the Illinois Department of
Corrections (“IDOC”) currently incarcerated at
Lawrence Correctional Center (“Lawrence”), brings
this action pursuant to 42 U.S.C. § 1983 in order to
challenge the calculation of his sentence on Fourteenth
Amendment due process grounds. (Doc. 1). DuBois claims that
he should have been released on parole on August 27, 2017.
(Doc. 1, p. 5). Due to an error in his sentence calculation,
he remains incarcerated. (Doc. 1, pp. 1-2, 5). DuBois seeks
monetary damages against Leann Whittler (records office
executive) and Nick Lamb (warden) for allegedly failing to
correct the error. (Doc. 1, p. 6).
case is now before the Court for a preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening - The court shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the
court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
action or claim is frivolous if “it lacks an arguable
basis either in law or in fact.” Neitzke
v.Williams, 490 U.S. 319, 325 (1989). Frivolousness is
an objective standard that refers to a claim that any
reasonable person would find meritless. Lee v.
Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An
action fails to state a claim upon which relief can be
granted 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). The claim of entitlement to relief must cross
“the line between possibility and plausibility.”
Id. at 557. At this juncture, the factual
allegations in the pro se complaint are to be
liberally construed. See Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
to the allegations in the Complaint, DuBois was sentenced to
concurrent terms of three years in IDOC custody following his
convictions in McLean County Nos. 14-CF-1438 and 14-CF-1186.
Id. According to the Judgment dated December 28,
2015, and the Sentence Calculation Worksheet dated March 3,
2016, DuBois's projected parole date was June 27, 2017.
subsequently entered into a plea agreement in McLean County
No. 15-CF-1141. (Doc. 1, p. 5). On April 26, 2016, DuBois was
sentenced to one year for this conviction, and he received
credit for 120 days spent in custody. Id. The new
sentence was supposed to run consecutive to the old sentences
imposed in McLean County Nos. 14-CF-1438 and 14-CF-1186.
Id. DuBois maintains that his adjusted projected
parole date was August 27, 2017. Id.
Whittler, a records office executive, allegedly failed to
apply the 120-day credit to DuBois's sentence. (Doc. 1,
p. 5). When DuBois asked her to explain her calculation on or
around June 16, 2017, Whittler indicated that she
did apply the 120-day credit. (Doc. 1, pp. 5, 22).
Even so, Whittler could not explain how or where she gave
DuBois this credit, even when reviewing the Sentence
Calculation Worksheet dated May 5, 2016. Id.
correct the alleged miscalculation, DuBois filed a letter in
McLean County Circuit Court on or around August 3, 2017.
(Doc. 1, p. 10). At the time, he had two appeals pending in
McLean County Nos. 14-CF-1438 and 14-CF-1186. (Doc. 1, pp.
10-11). Judge Scott Drazewski responded to the letter by
stating that the trial court lacked jurisdiction over the
matter. Id. On August 24, 2017, DuBois
filed an emergency grievance with Warden Nick Lamb. (Doc. 1,
pp. 5, 18-19). The grievance and appeal were ultimately
denied by the Administrative Review Board. Id. He
then commenced this action. DuBois claims that the conduct of
Whittler and Lamb described above deprived him of his
Fourteenth Amendment “right to parole.”
Review Under 28 ...