United States District Court, C.D. Illinois, Springfield Division
JOSEPH R. HURST, Plaintiff,
VIRGINIA MARTINEZ and ILLINOIS PRISONER REVIEW BOARD, Defendants.
MERIT REVIEW OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
proceeds pro se from his incarceration in the Dixon
Correctional Center. His Complaint is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. This section
requires the Court to identify cognizable claims stated by
the Complaint or dismiss claims that are not cognizable. In
reviewing the complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor and taking Plaintiff's pro se
status into account. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013). However, conclusory statements and
labels are insufficient. Enough facts must be provided to
"'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418,
422 (7th Cir. 2013) (quoted cite omitted).
Complaint, Plaintiff alleges that he was sentenced to an
indeterminate sentence of 100 to 300 years after being
convicted of murdering a Chicago police officer in May 1967.
Plaintiff further alleges that he was sentenced prior to the
1977 amendatory version of Illinois' Unified Code of
Corrections and, under the prior statutory scheme, was
eligible for parole upon the completion of 20 years less good
time. Plaintiff asserts he was first eligible for parole in
Complaint contains three claims brought pursuant to 42 U.S.C.
§ 1983 seeking injunctive and declaratory relief against
the Illinois Prisoner Review Board and Virginia Martinez, one
of its members. See Wilkinson v. Dotson, 544 U.S.
74, 76 (2005) (holding that state prisoners' claims for
declaratory and injunctive relief alleging that Ohio's
state parole procedures violated the United States
Constitution could be brought under § 1983 rather than
the federal habeas corpus statutes). In Count I, Plaintiff
asserts that his most recent parole hearing on September 13,
2017 failed to satisfy the minimal requirements of
fundamental fairness guaranteed by the Due Process Clause of
the Fourteenth Amendment of the United States Constitution.
Specifically, Plaintiff complains that only one hearing
officer, Defendant Martinez, conducted the hearing, the
hearing only lasted 20 minutes, and the hearing was not
recorded. Plaintiff claims that the relevant statutes, which
allow only one member to interview Plaintiff and make a
record of the interview available for the full Board's
consideration, violates the Due Process Clause. Compl. at 5,
citing 730 ILCS 5/3-3-2(a)(2), 730 ILCS 5/3-3-5(a), (b).
Process Clause of the Fourteenth Amendment prohibits a State
from depriving any person of “life, liberty, or
property without due process of law.” U.S. Const.
amend. XIV, § 1. There is no constitutional right to
parole. Heidelberg v. Ill. Prisoner Review Bd., 163
F.3d 1025, 1026 (7th Cir. 1998). A State may, however, create
a protected liberty interest in parole or early release
“if its parole system requires release when a parole
board or similar authority determines that the necessary
prerequisites exist.” Id.; see also Olim
v. Wakinekona, 461 U.S. 238, 249 (1983) (“[A]
state creates a protected liberty interest by placing
substantive limitations on official discretion.”).
Illinois parole system does not create a property or liberty
interest because the Illinois parole system is completely
discretionary, outside the few instances when denial of
parole is mandatory. Heidelberg, 163 F.3d at 1027
(citing Hanrahan v. Williams, 174 Ill.2d 268, 276
(1996)). The Seventh Circuit, following the Illinois Supreme
Court's interpretation of the Illinois parole statute,
has held that “Illinois' parole statute does not
create a legitimate expectation of parole, ” and
prisoners do not have a protected liberty interest in being
granted parole. Id.; see also Hill v.
Walker, 241 Ill.2d 479, 487 (2011) (concluding that
“the Illinois parole statute does not create a
legitimate expectation of parole that rises to the level of a
liberty interest protected by procedural due process”).
Because Plaintiff does not have a protected property or
liberty interest in being granted parole, his due process
rights were not violated by the procedures used at his last
parole hearing. See Montgomery v. Anderson, 262 F.3d
641, 644 (7th Cir. 2001) (noting that when no liberty or
property interest exists, the State “is free to use any
procedures it chooses, or no procedures at
all”). Count I fails to state a claim.
Count II, Plaintiff alleges that Defendants violated the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment of the United States Constitution by conducting his
parole hearing in the absence of a risk assessment instrument
required by State law, 730 ILCS 190/15. Plaintiff argues
that other prisoners of his same class have had the risk
assessment instrument used at their parole hearings.
Plaintiff also asserts that he was deprived of his statutory
right to have his suitability for parole evaluated with the
aid and benefit of a risk assessment instrument.
reasons stated above with regard to Count I, the Court finds
that Plaintiff cannot bring a due process claim because he
does not have a property or liberty interest in being granted
parole. In addition, even assuming the Illinois statute
provided Plaintiff a right to have his suitability for parole
evaluated with the aid and benefit of a risk assessment
instrument, a “violation of state law does not by
itself constitute a violation of the Federal
Constitution.” Nordlinger v. Hahn, 505 U.S. 1,
27 (1992) (Thomas, J., concurring); Waubanascum v.
Shawano Cnty., 416 F.3d 658, 666 (7th Cir. 2005) (noting
that “violations of state law are by themselves
insufficient to impose liability under § 1983”).
leaves Plaintiff's Equal Protection Clause claim. The
Equal Protection Clause provides that “[n]o State shall
. . . deny any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, §
1. To state a claim for an equal protection violation, a
plaintiff must allege that the defendant acted with
discriminatory purpose and discriminated against the
plaintiff because of the plaintiff's membership in an
identifiable class. See D.S. v. East Porter Cnty. Sch.
Corp., 799 F.3d 793, 799 (7th Cir. 2015). If a plaintiff
does not allege that he is a member of a protected class, he
may proceed under a class-of-one theory, in which case he
must allege that he was “intentionally treated
differently from others similarly situated and that there is
no rational basis for the difference in treatment.”
Id. (quotation marks and citation omitted).
Plaintiff has not plausibly alleged that Defendants acted
with discriminatory purpose or that he was intentionally
treated differently from other similarly situated prisoners.
At most, Plaintiff has alleged an isolated event or an
inconsistency in prison management which does not, by itself,
constitute a cognizable equal protection claim. See
Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)
(noting on review of a preliminary injunction that the
plaintiff had to establish a reasonable likelihood that the
state official purposefully and intentionally discriminated
against him by denying him a hearing and not just an
inconsistency in prison management); McGruder v.
Veath, No. 15-cv-0255-MJR-SCW, 2017 WL 6731863 (S.D.
Ill.Dec. 29, 2017). Therefore, Count II fails to state a
Count III, Plaintiff alleges that the Illinois statute
allowing Defendants to impose a multi-year continuance on a
prisoner after he has been denied parole violates the Ex Post
Facto Clause of the United States Constitution. Section 3-3-5
of the Unified Code of Corrections provides that, if the
Prisoner Review Board denies parole:
[the Prisoner Review Board] shall provide for a rehearing not
less frequently than once every year, except that the Board
may, after denying parole, schedule a rehearing no later than
5 years from the date of the parole denial, if the Board
finds that it is not reasonable to expect that parole would
be granted at a hearing prior to the scheduled rehearing
730 ILCS 5/3-3-5(f).
alleges that, when he was sentenced, the law in effect only
allowed a 12-month continuance following a parole denial.
Now, the statute provides that a continuance in excess of 12
months can be imposed. Plaintiff claims he has been given
another hearing three years from his 2017 hearing. Plaintiff
asserts that the amended statute violates the prohibition
against ex post facto laws ...