Ortega v. Shelton

• Decision Date: 15 March 2018
• Docket Number: Case No. 17-cv-01091-MJR
• Citation: Ortega v. Shelton, Case No. 17-cv-01091-MJR (S.D. Ill. Mar 15, 2018)
• Parties: ALDO ORTEGA, #M27539, Plaintiff, v. DONALD SHELTON, ARTHUR MAE PERKINS, PETE FISHER, TRACEY BUCKLEY, ERNEST W. VONZANT, II, CONNIE HALLIDAY, DAVID RAINS, D. WAYNE DUNN, VONETTA HARRIS, WILLIAM NORTON, RANDY MOSS, CRAIG FINDLEY, JOHN BALDWIN, KENNETH D. TUPY, BRITNEY HUDLESTON, KACEY REDMAN, APRIL WAMPLER, ANN LAHR, R. ERICKSON, GARY DUNCAN, and SALVADOR DIAZ, Defendants.
• Court: U.S. District Court — Southern District of Illinois

ALDO ORTEGA, #M27539, Plaintiff, v. DONALD SHELTON, ARTHUR MAE PERKINS, PETE FISHER,TRACEY BUCKLEY, ERNEST W. VONZANT, II,CONNIE HALLIDAY, DAVID RAINS, D. WAYNE DUNN,VONETTA HARRIS, WILLIAM NORTON, RANDY MOSS,CRAIG FINDLEY, JOHN BALDWIN, KENNETH D. TUPY,BRITNEY HUDLESTON, KACEY REDMAN, APRIL WAMPLER,ANN LAHR, R. ERICKSON, GARY DUNCAN, andSALVADOR DIAZ, Defendants.

Case No. 17-cv-01091-MJR

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

March 15, 2018

MEMORANDUM AND ORDER

REAGAN, Chief District Judge:

This matter is now before the Court for preliminary review of the First Amended Complaint filed by Plaintiff Aldo Ortega.¹ (Docs. 13, 13-1). Plaintiff is a convicted sexoffender, who was released on parole or mandatory supervised release² in December 2013. (Doc. 13, p. 5). He was taken back into the custody of the Illinois Department of Corrections ("IDOC") on August 5, 2015, for allegedly violating the conditions of his parole. (Doc. 13, pp. 4-5). In the process, Plaintiff's host site was deemed unsuitable, and no other site has been approved. (Doc. 13, p. 4). As a result, Plaintiff remains in IDOC custody. Id.

Plaintiff is now incarcerated at Robinson Correctional Center ("Robinson"). (Doc. 13, p. 2). He brings this action pursuant to 42 U.S.C. § 1983 against various IDOC officials and Prison Review Board ("PRB") members who were involved in denying his release on parole for lack of a suitable host site. (Doc. 13, pp. 2, 17-19). Plaintiff maintains that these officials have conspired to violate his rights under the Fourth, Eighth, and Fourteenth Amendments and Illinois state law. Id. He seeks declaratory judgment, monetary damages, and injunctive relief. (Doc. 13, pp. 19-20).

This case is now before the Court for preliminary review of the First Amended 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 such relief.

Id. An 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).

First Amended Complaint

According to the First Amended Complaint (Docs. 13, pp. 1-20) and exhibits (Doc. 13-1, pp. 1-148), Plaintiff was found guilty of reproducing and selling child pornography in Cook County Case No. 11 CR 0870901. (Doc. 13-1, p. 4). He was sentenced to four years in IDOC custody with a parole term of three years to life. (Doc. 13-1, pp. 4, 8). On December 13, 2013, Plaintiff was released from Centralia Correctional Center on parole. Id. After serving 19½ months of his parole term, Plaintiff was taken back into custody on August 5, 2015. (Doc. 13, p. 5; Doc. 13-1, p. 8). He was temporarily housed at Stateville Correctional Center.

On August 10, 2015, Plaintiff was served with a Parole Violation Report issued by Parole Agent Joseph Blaha. (Doc. 13, p. 5; Doc. 13-1, p. 7). The report cited Plaintiff for violations of Condition #15 for possession of alcohol, smart cell phones, a computer, and sexually explicit material by a sex offender. (Doc. 13-1, p. 7). It also cited Plaintiff for violating Condition #16 for failure to comply with sex offender counseling, computer and internet restrictions, and GPS monitoring. Id. Because these alleged violations occurred at his original host site (i.e., hisparents' residence), Agent Blaha requested that the site be deemed unsuitable in the future.³ (Doc. 13-1, pp. 8-10).

Plaintiff transferred to Big Muddy River Correctional Center ("Big Muddy") the same day he received the Parole Violation Report. (Doc. 13, p. 5). A parole revocation hearing was scheduled before the PRB for September 2015. Id. On the date of the hearing, Plaintiff met with Gary Duncan (a PRB member) to review the Parole Violation Report and answer questions about the charges. Id. Duncan consulted with D. Wayne Dunn, another PRB member, and decided to reschedule Plaintiff's parole revocation hearing for March 2016. Id.

On March 14, 2016, Plaintiff met with an unidentified housing unit counselor and asked the counselor to inform the PRB members that he wished to be declared a parole violator. (Doc. 13, p. 6). Plaintiff believed that he would be eligible for immediate release from IDOC custody if he was declared a violator. The following day, he met with Dunn during the rescheduled PRB hearing. Id. Dunn asked Plaintiff if he had an alternative host site address to submit. Id. Plaintiff stated that he did not. Id. Dunn explained that he would order Plaintiff's release on parole once a suitable host site was located. Id. In the meantime, Dunn rescheduled the PRB hearing for a later date. Id. When Plaintiff asked Dunn to declare him a violator, Dunn stated that he was not allowed to revoke Plaintiff's parole. Id. Dunn then instructed Plaintiff to sign the PRB Order rescheduling his revocation hearing. Id.

Plaintiff initially refused to sign the PRB Order, and Connie Halliday was called over to respond to Plaintiff's questions and concerns. (Doc. 13, pp. 6-7). After Halliday assuredPlaintiff that he would receive a copy of the PRB Order and Memorandum in the mail, he signed it. Id. In the process of doing so, Plaintiff noticed that Dunn changed the alleged violations from Conditions #15 and #16 to Condition #5, based on his lack of a suitable host site. Id. Plaintiff maintains that Dunn lacked authority to make this change to the original Parole Violation Report. Id. Soon after returning to his housing unit, Plaintiff submitted his parents' home address as his proposed host site, and Halliday deemed the host site unsuitable on March 29, 2016. Id.

Plaintiff began filing grievances to complain about the PRB's decision. (Doc. 13, p. 8). Plaintiff requested a copy of the signed PRB Order and Memorandum from Big Muddy's Records Office. Id. His document request was denied. Id. Plaintiff was informed that offenders are not allowed to obtain copies of their master files, and no such memorandum could be located in his master file. Id. He was further advised that prison review files are stored in Springfield, Illinois. Id. Plaintiff then sent a request for documentation pursuant to the Freedom of Information Act ("FOIA") to the PRB's main office in Springfield, Illinois. Id. Kenneth D. Tupy, who was serving as a FOIA officer at the time, responded to the request. Id. Ernest VonZant II, the Records Office Supervisor at Big Muddy, issued the supporting Memorandum. Id. It described the action to be taken against Plaintiff and directed Tracey Buckley, a PRB member, to "guide the action." Id. Plaintiff claims that the counselor from his housing unit colluded with "Records," "Field Services," and the PRB to force him back out on parole while also denying his request to return to his original host site.⁴ Id.

On or around March 25, 2016, Plaintiff wrote a letter to Craig Findley, the PRB Chairman, asking that his parole be revoked. (Doc. 13, p. 9). In the same letter, Plaintiff stated that he no longer wished to be eligible for release on parole. Id. He received no response to the letter. Id.

Plaintiff also asked his housing unit counselor for a copy of the procedures necessary for calling witnesses to testify at his next PRB hearing, which was rescheduled for August 2016. (Doc. 13, p. 10). Two weeks later, he asked about the status of his request to call witnesses. Id. Before receiving a response, he was transferred to Robinson on August 10, 2016. Id.

Plaintiff asked his new housing unit counselor at Robinson, B. Hudleston, whether his witnesses would be present at the upcoming parole revocation hearing. (Doc. 13, p. 10). Hudleston informed Plaintiff that he must comply with the process in place at Robinson for calling witnesses. Id. Plaintiff was unable to complete this process before his parole revocation hearing on September 7, 2016. Id. Although a Notice of Parole Revocation Hearing was sent to him through the institutional mail on August 31, 2016, i.e., seven days before the rescheduled hearing date of September 7, 2016, Plaintiff did not receive the notice seven business days before the hearing. Id. As a result, Plaintiff lacked sufficient time to call witnesses. Id.

When Plaintiff appeared at the hearing before PRB Member Donald Shelton on September 7, 2016, Shelton acknowledged the pending request for witnesses and offered to reschedule the hearing. (Doc. 13, p. 10). Shelton also explained that Plaintiff would not need witnesses, if he wished to be declared a violator. (Doc. 13, p. 11). At the same hearing, Shelton declared Plaintiff to be in violation of Condition #5 for lack of a suitable host site. Id. Shelton concluded that Plaintiff should be re-confined for a period of two years from August 5, 2015, and refused to credit Plaintiff with twenty-two days he was allegedly held beyond his original release date at...