Davis-El v. O'LEARY

• Decision Date: 17 January 1986
• Docket Number: No. 85 C 2396.,85 C 2396.
• Citation: 626 F. Supp. 1037
• Parties: Ivory DAVIS-EL, Plaintiff, v. Michael O'LEARY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

626 F. Supp. 1037

Ivory DAVIS-EL, Plaintiff, v. Michael O'LEARY, et al., Defendants.

No. 85 C 2396.

United States District Court, N.D. Illinois, E.D.

January 17, 1986.

Ivory Davis-El, pro se.

Neil F. Hartigan, Atty. Gen. of Illinois by Marita C. Sullivan, Asst. Atty. Gen., General Law Div., Chicago, Ill., for defendants.

BUA, District Judge.

ORDER

Before the Court is defendants' motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), plaintiff's action challenging the procedures of the Illinois Prisoner Review Board. For the reasons stated herein, defendants' motion is granted in part and denied in part.

I. FACTS

Plaintiff brings this action under 42 U.S.C. § 1983 challenging the parole procedures used by the Illinois Prisoner Review Board. Plaintiff appeared before the Board in January 1984 and was given a continuance to February 1, 1984. Plaintiff was heard and given an en banc continuance. On February 9, 1984, the Board sitting en banc denied the plaintiff parole. Plaintiff appeared before the Board on October 31, 1984 and was given an en banc continuance. Parole was denied November 5, 1984.

Plaintiff's complaint consists of ten claims alleging that defendants violated: (1) plaintiff's procedural due process and equal protection rights due to the Board's failure to keep minutes of their en banc hearings; (2) plaintiff's procedural due process and equal protection rights due to the refusal of the Stateville records office supervisor to let plaintiff see his master file; (3) plaintiff's right to "procedural due process record access" and equal protection due to the Board granting plaintiff's request to see his parole board files but not his master file; (4) the ex post facto clause of the United States Constitution due to a change in procedure which requires en banc hearings for all prisoners having twenty or more years left on their sentences; (5) plaintiff's right to equal protection due to the change in procedure; (6) plaintiff's and all prisoners with twenty years or more left on their sentence right to equal protection and due process because the change in procedure discriminates against them; (7) plaintiff's right to due process because the change in procedure is arbitrary and capricious, discriminating against a specific group of prisoners; (8) plaintiff's right to procedural due process and equal protection due to the prison officials' discretion concerning when to grant bonus institution credits to model prisoners; (9) plaintiff's right to equal protection because the parole denial was based on his race; and (10) plaintiff's right of equal protection due to the fact that prisoners at Stateville Correctional Center are paroled at a slower rate than inmates at other maximum security prisons in Illinois.

II. DISCUSSION

A. Failure to Keep Parole Hearing Minutes

Plaintiff argues that the failure of the Board to keep minutes of its en banc hearings and rehearings constitutes a due process violation. In support of this argument, plaintiff asserts that the Illinois Open Meetings Act, Ill.Rev.Stat. 1983, ch. 102, Par. 42.06 (the Act), creates a protectible due process liberty interest in recording minutes of the Board's hearings. The defendants counter that Paragraph 42(b) of the Act specifically exempts the Board's hearings from the Act's scope. Defendants also argue that the violation of the Act does not necessarily implicate a constitutional violation.

When state law is a possible source of a liberty interest, the analysis concerning its identification as a constitutionally protected interest "parallels the accepted due process analysis as to property." Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). However, the parallel between the property and liberty interest analyses is not unwavering, and in some settings it is inappropriate strictly to apply a property interest analysis to the task of determining the existence of constitutionally protected liberty interests. See Jago v. VanCuren, 454 U.S. 14, 17-23, 102 S.Ct. 31, 34-37, 70 L.Ed.2d 13 (1981) (per curiam). Indeed, Jago v. VanCuren, supra, indicates that a less expansive approach to the identification of liberty interests is appropriate in the prison setting than would be the case if the usual property interest inquiry under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) were utilized. Shango v. Jurich, 681 F.2d 1091, 1100 n. 17 (7th Cir.), reh. denied, 681 F.2d 1091 (7th Cir.1982).

Although the existence of a liberty interest may be ascertained by reference to state law, once such an interest is identified, the task of defining the procedural protections which attach to that interest is wholly a matter of federal constitutional law and is accomplished through application of the balancing analysis of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Shango v. Jurich, supra, 681 F.2d at 1098. Once it is determined what process is due to the individual before he can be deprived of the specific liberty or property interest by the state, state procedures are scrutinized to see if they comport with the federal procedural due process requirements. Id. However, state procedural protections cannot define what process is due. Id. The Fourteenth Amendment's limitation on state action would be illusory if state practices were synonymous with due process. Id.

Therefore, the issue here becomes, assuming arguendo the existence of a right to have the minutes of the Board's hearings recorded, whether this interest is entitled to federal due process protection. In determining this issue, the dispositive inquiry is not the source of the purported liberty interest, but rather "`the nature of the interest at stake.'" Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (quoting Board of Regents v. Roth, supra, 408 U.S. at 571, 92 S.Ct. at 2706 (emphasis in Roth)). The nature of the interest in having minutes of the Board's hearings recorded relates solely to finding out whether the basis for the Board's decision is proper. However, as such, this interest overlaps with the test for determining whether a statement of reasons for a decision denying parole is constitutionally adequate. See United States ex rel. Scott v. Ill. Parole and Pardon Board, 669 F.2d 1185, 1190 (7th Cir.1982) (per curiam).

In Scott, the Seventh Circuit Court of Appeals held that Illinois' parole release statute creates a constitutional liberty interest under the United States Supreme Court's analysis in Greenholtz v. Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Seventh Circuit went on to state the test for determining whether a statement of reasons for a denial of parole is sufficient to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment. Quoting United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925 (2d Cir.), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974), the Seventh Circuit set forth the determinative test:

To satisfy minimum due process requirements a statement of reasons should be sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. For this essential purpose, detailed findings of fact are not required, provided the Board's decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision ... and the essential facts upon which the Board's inferences are based.

Scott, supra, 669 F.2d at 1190.

The Seventh Circuit went further to elucidate the Johnson test's rationale in light of Greenholtz:

Greenholtz makes clear that, even when the Due Process Clause applies to a parole release determination, there is "nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular `evidence' in the inmate's file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release." 442 U.S. at 15, 99 S.Ct. at 2107.

Scott, supra, 669 F.2d at 1190-91.

Therefore, in Scott, the Seventh Circuit concluded that due process does not require detailed findings of fact or specification of particular evidence which forms the basis for a parole denial.

By arguing that a failure to keep minutes of the Board's hearings constitutes a constitutional violation, plaintiff seeks to require, under the guise of a due process analysis, what the Seventh Circuit has already concluded in Scott is not required by due process. To wit, the only purpose of requiring the Board to keep minutes of its hearings and making the failure to do so a constitutional violation is to prevent parole denials for impermissible reasons. However, this concern has been addressed in the due process analysis in Scott and the Seventh Circuit concluded that due process requires only a limited factual inquiry. Since plaintiff's proposed interest in the keeping of minutes of the Board's hearings go beyond the limited factual inquiry set forth in Scott, the Court concludes that due process does not require the keeping of minutes of the Board's hearings and that failure to do so does not constitute a constitutional violation.

B. Access to Parole Board Files and Plaintiff's Master File

Plaintiff argues that he was denied access to those portions of his Master File and the Board's files which the Board relied upon in reaching its decision to deny him parole at the October 31, 1984 hearing. In support of this argument, plaintiff cites Administrative Regulation # 844 of the Illinois Department of Corrections as requiring that he be given access to any factual information relied upon by the Board. Plaintiff concludes that the failure to provide him such access constitutes a violation of procedural due...