Pickens v. Moore

• Citation: 806 F.Supp.2d 1070
• Decision Date: 26 August 2011
• Docket Number: No. 10 C 5866.,10 C 5866.
• Parties: Ramon PICKENS, Plaintiff, v. Robert MOORE, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

806 F.Supp.2d 1070

Ramon PICKENS, Plaintiff,

v.Robert MOORE, etc., et al., Defendants.

No. 10 C 5866.

United States District Court, N.D. Illinois, Eastern Division.

Aug. 26, 2011.

Kevin Gerard Desharnais, Mayer Brown LLP, Chicago, IL, for Plaintiff.

Chloe G. Pedersen, Illinois Attorney General, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

Ramon Pickens (“Pickens”) filed this pro se action against Robert Moore (“Moore”), a parole officer with the Illinois Department of Corrections, seeking relief under 42 U.S.C. § 1983 (“Section 1983”). Pickens accompanied his self-prepared Complaint with requests (1) for permission to proceed in forma pauperis and (2) for appointment of counsel to represent him pro bono publico.

This Court granted both requests, and after the first two appointed attorneys found themselves unable to serve, the present counsel was appointed and filed an Amended Complaint.¹ That pleading advanced a single count alleging that Moore violated Pickens' due process rights under the Fourteenth Amendment by filing a false report with the Illinois Prisoner Review Board (“Board”) that caused him to be wrongfully incarcerated for nine extra months.

Moore then filed a motion to dismiss that has now been fully briefed. For the reasons discussed below, that motion is denied.

Standard of Review

Under Rule 12(b)(6) a party may seek dismissal of a complaint for “failure to state a claim upon which relief can be granted.” In that respect Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) has done away with the formulation first announced in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

As Twombly, 550 U.S. at 562–63, 127 S.Ct. 1955 put it:

Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement.

Twombly, id. at 570, 127 S.Ct. 1955 held instead that a complaint must provide “only enough facts to state a claim to relief that is plausible on its face.” Or put otherwise, “[f]actual allegations must be enough to raise a right to relief above the speculative level” ( id. at 555, 127 S.Ct. 1955).

But almost immediately thereafter the Supreme Court issued another opinion that seemed to cabin Twombly somewhat. Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.2007) has explained that further development:

Two weeks later the Court clarified that Twombly did not signal a switch to fact-pleading in the federal courts. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). To the contrary, Erickson reaffirmed that under Rule 8 “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” 127 S.Ct. at 2200, quoting Twombly, 127 S.Ct. at 1964. Taking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8. And since then Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) has both (1) further explicated and (2) universalized Twombly's teaching.

It is thus the Twombly–Iqbal canon that has since controlled the treatment of complaints and does so here. Here is Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492–93 (7th Cir.2011), a recent statement of the Rule 12(b)(6) standard by our Court of Appeals that employs long-familiar language without the overgenerous gloss that had been provided by Conley v. Gibson:

We construe the complaint in the light most favorable to the plaintiffs, accepting as true all well-pled facts alleged, taking judicial notice of matters within the public record, and drawing all reasonable inferences in the plaintiffs' favor.

This opinion adheres to that dictate.

Factual Background

Pickens was incarcerated at two different Illinois correctional centers for a little over nine months until he was granted mandatory supervised release on November 9, 2007 (¶¶ 7, 8). On that date he was immediately transferred to Kane County Jail due to an outstanding warrant, and he remained at that facility for another five months until his release on April 11, 2008 (¶ 10, 11).

On June 19, 2009 Pickens' parole officer Moore placed Pickens on “lockdown” and required him to undergo electronic monitoring at his host site (¶ 17). Six days later Moore placed Pickens under house arrest at the same address (¶ 18). Pickens called Moore on September 29, 2009 to inform him that his life was in danger and that he needed to sever his electronic monitoring band and evacuate the premises (¶ 19). Moore filed a parole violation report the next day, and two days later Pickens voluntarily turned himself in to Moore's supervisor (¶¶ 20, 21).

Pickens alleges that Moore's parole violation report contained two falsities: that Pickens had not completed substance abuse treatment and that he had been “AWOL” for a total of 526 days (¶ 22, 23). On October 15, 2009 a preliminary parole revocation hearing was held, at which time Moore's report was introduced against Pickens (¶ 24). Pickens was informed on November 9, 2009 that he would not be released on his mandatory “out-date” (¶ 25). Board then told Pickens at a December 2, 2009 hearing that his mandatory out-date had passed and that he would in fact be released (¶ 26).

Despite that assurance, Board issued a decision two days later in which it revoked Pickens' mandatory supervised release, and he then remained in custody until July 8, 2010 (¶¶ 27, 28). Pickens filed several offender grievances during that period of detention (¶ 29). On September 15, 2010 this Court received Pickens' pro se Complaint.²

Heck v. Humphrey

As a threshold matter (although it is framed only in conclusory fashion at the end of Moore's motion to dismiss), Moore insists that Pickens' Section 1983 claim for damages is blocked by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck, id. at 487, 114 S.Ct. 2364 held that “unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated,” the plaintiff's Section 1983 suit must be dismissed if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence[.]”

In opposing the potential applicability of Heck and its progeny to this type of case, Pickens misapprehends the scope of the doctrine. But that misapprehension is of no moment, because both parties have failed to address a dispositive issue in that regard: Pickens' status as a former inmate for whom habeas relief is unavailable (more on that later).

As for Pickens' error, he is wrong to assert that the Heck bar applies only to an underlying conviction and not to a revocation of parole. Both as a matter of logic and of precedent, Heck applies equally to challenges to revocation of parole (see Wilkinson v. Dotson, 544 U.S. 74, 81–82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); Knowlin v. Thompson, 207 F.3d 907, 909 (7th Cir.2000)). Hence the fact that Pickens challenges his revocation of parole rather than his underlying conviction or sentence does not bring him out from under Heck.

Moreover, the nature of Pickens' claim appears to place it within the core of the type of claims blocked by Heck because he is challenging the fact and duration of the confinement that resulted from the revocation of his parole (see Heck, 512 U.S. at 481, 114 S.Ct. 2364; Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). That sort of claim stands in contrast to one challenging, for example, the constitutionality of parole procedures, which is not always barred by Heck (see Wilkinson, 544 U.S. at 82, 125 S.Ct. 1242).

Despite the seeming applicability of Heck in this case, however, the dispositive issue on the subject (unaddressed by both parties) becomes whether Heck operates on a former inmate, now released, for whom habeas relief is currently unavailable. That debate goes back to Heck itself, in which the majority criticized Justice Souter's argument in concurrence that individuals not in custody for habeas purposes should fall outside of that case's holding. ³ Justice Scalia, writing for the majority, rejected that approach (512 U.S. at 490 n. 10, 114 S.Ct. 2364):

We think the principle barring collateral attacks—a longstanding and deeply rooted feature of both the common law and our own jurisprudence—is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.

Undeterred, Justice Souter picked up on his Heck concurrence in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), this time commanding a five-Justice plurality in stating that inmates not in custody and thus unable to bring a habeas petition were not barred by Heck from bringing Section 1983 suits challenging their confinement (see id. at 18–21 (Souter, J., concurring); id. at 21–22 (Ginsburg, J., concurring); id. at 25 n. 8 (Stevens, J., dissenting)). As Justice Souter explained his view ( id. at 20–21 (footnote omitted)):

Now, as then, we are forced to recognize that any application of the favorable-termination requirement to § 1983 suits brought by plaintiffs not...