Toney-El v. Franzen

• Decision Date: 15 January 1986
• Docket Number: TONEY-E,P,No. 84-3122,84-3122
• Citation: 777 F.2d 1224
• Parties: Alvin F.laintiff-Appellee, v. Gayle F. FRANZEN, Director of the Department of Corrections, James W. Fairman, Warden, and Paul Hosier, Record Officer Supervisor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1224

777 F.2d 1224

Alvin F. TONEY-EL, Plaintiff-Appellee, v. Gayle F. FRANZEN, Director of the Department of Corrections James W. Fairman, Warden, and Paul Hosier, Record Officer Supervisor, Defendants-Appellants.

No. 84-3122.

United States Court of Appeals, Seventh Circuit.

Argued June 11, 1985.

Decided Nov. 20, 1985.

Rehearing and Rehearing En Banc Denied Jan. 15, 1986.

Thomas M. Schmidt, Atty. Gen. Office, Springfield, Ill., for defendants-appellants.

J. Steven Beckett, Reno, O'Byrne & Kepley, Champaign, Ill., for plaintiff-appellee.

Before COFFEY and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Plaintiff-Appellee sued defendants-appellants under 42 U.S.C. Sec. 1983 alleging that they violated his constitutional rights by allowing him to remain incarcerated for 306 days beyond his release date. The district court directed a verdict in favor of the appellee on the issue of liability and a jury awarded appellee $40,000. We reverse.

I.

On August 19, 1976, a Cook County, Illinois, Circuit Court sentenced Appellee, Toney-El, to serve four concurrent prison terms of seven years to seven years and one day in the Illinois Department of Corrections. While serving that sentence, Toney-El pled guilty to an earlier charge pending against him, and on that charge, on September 24, 1979, Cook County Circuit Judge Garippo sentenced Toney-El to a ten-year term of imprisonment and gave him 2 years and 255 days credit for the time that he had served in the county jail since his arrest on that earlier charge. ¹ An Illinois statute provided that the ten-year sentence was to run concurrently with the other four sentences. See Ill.Ann.Stat. ch. 38, Sec. 1005-8-4(a) (Smith-Hurd 1982). Those four seven-year sentences expired in March 1980.

Effective February 1, 1978, Illinois changed the system by which it awarded good conduct credits to inmates. The new statute provided that "the prisoner shall receive one day of good conduct credit for each day of service in prison" and that "[e]ach day of good conduct credit shall reduce by one day the inmate's period of incarceration set by the court." See Ill.Ann.Stat. ch. 38, Sec. 1003-6-3(a)(2) (Smith-Hurd Supp.1985). Taking into account the credits awarded by Judge Garippo and the statutory good conduct credits, the Department of Corrections determined that Toney-El had January 12, 1982 as a release date for the September 1979 ten-year sentence.

In late 1979 or early 1980, Toney-El began to question the manner by which his statutory good conduct credits were awarded. He wrote letters to Franzen, Director of the Department of Corrections, to the Governor of Illinois, to the Chicago Sun Times, and to Senator Adlai Stevenson. ² He also spoke with Hosier, Supervisor of the Department of Corrections Record Office. Franzen advised Toney-El that a recalculation of his sentence would be made and that he ought to contact his correctional counselor to obtain verification of his sentence calculation. Hosier informed Toney-El that his statutory good-conduct credits had been awarded pursuant to the 1978 law and that his projected release date was January 12, 1982.

On June 26, 1980, Toney-El filed a motion in the Cook County Circuit Court requesting that he receive credit on his ten-year sentence for the time that he had served on his four seven-year sentences. Judge Suria issued an order dated July 15, 1980 which stated that the previous sentencing orders "are to stand," that Toney-El "is to receive sentence credit on all of the above charges from March 2, 1976, from which time the defendant has been continuously in the custody of law enforcement officials," and that "this order is to be considered in effect as of September 24, 1979."

Pursuant to Judge Suria's order, the Department of Corrections determined that Toney-El's custody date was March 2, 1976 and that his release date was March 2, 1981. The Department of Corrections believed that the March 2, 1976 date in Judge Suria's order incorporated all credits previously awarded, including the 2 years, 225 days given by Judge Garippo. Appellant Hosier had the Department's legal staff confirm the new release date.

Toney-El, disagreeing that Judge Suria's order nullified the credits granted to him by Judge Garippo, sought habeas corpus relief in the federal district court, Central District of Illinois. The district court rejected the Department of Correction's interpretation of Judge Suria's order. The district court viewed Judge Suria's order as granting sentence credit from March 2, 1976 in addition to the credit granted to Toney-El by Judge Garippo. The district court determined that Toney-El's release date was either June 23, 1978, or February 2, 1980, depending upon whether Judge Suria intended to supplant the credit Judge Garippo gave for time served since February 1978. See note 1, supra at 2. This Court affirmed the district court's decision. Toney v. Franzen, 687 F.2d 1016 (7th Cir.1982).

Toney-El then filed the present action under 42 U.S.C. Sec. 1983 seeking damages for, among other things, false imprisonment. The complaint named Franzen, Director of the Illinois Department of Corrections, Fairman, Warden of the Pontiac Correctional Center, and Hosier, Record Office Supervisor of the Pontiac Correctional Center, as defendants. He amended his complaint to base the false imprisonment claim upon the fifth, thirteenth and fourteenth amendments. The case went to trial before a jury. At the close of the evidence, the district court directed a verdict for the appellees on Toney-El's thirteenth amendment claim and for Toney-El on the issue of liability on the due process claim under the fifth and fourteenth amendments. The jury awarded Toney-El $40,000. Franzen, Fairman and Hosier appeal.

II.

The initial inquiry in every 42 U.S.C. Sec. 1983 action

must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); see also Coleman v. Frantz, 754 F.2d 719, 722 (7th Cir.1985) (quoting Parratt ). The appellants clearly acted under color of state law when they calculated Toney-El's release date and Toney-El clearly had a constitutionally protected liberty interest in being released from prison before the end of his term for good behavior. McKinney v. George, 726 F.2d 1183, 1189 (7th Cir.1984) (citations omitted).

The district court decided that the appellants had denied Toney-El due process by incorrectly calculating his release date. Toney-El frames the issue as one of substantive due process while the appellants contend that it is one of procedural due process. Our next inquiry considers which form of due process applies to the instant case, because, "if substantive constitutional rights are violated, the constitutionally recognized deprivation is complete at the time of the action, irrespective of the procedures available before or after the deprivation." Hicks v. Feeney, 596 F.Supp. 1504, 1512 (D.Del.1984).

" 'Substantive due process' is a shorthand for the fact that the Supreme Court has interpreted the due process clause of the Fourteenth Amendment to confer certain substantive rights based mainly on the Bill of Rights." Brown v. Brienen, 722 F.2d 360, 366 (7th Cir.1983). Those substantive rights include the specific guarantees in the Bill of Rights as well as "penumbras, formed by emanations from those guarantees that help give them life and substance." Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). These penumbras embody

"a conception of fundamental justice." ... [They] protect[ ] against state transgression only those personal immunities that are "implicit in the concept of ordered liberty," ... leaving a state "free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." ...

"Fundamental rights," implicit in the concept of ordered liberty, include the rights to vote, ... the right of association, ... the right of access to the courts, ... and assorted freedoms against state intrusion into family life and intimate personal decisions, ....

Sotto v. Wainwright, 601 F.2d 184, 190-91 (5th Cir.1979) (citations omitted).

The Bill of Rights does not specifically guarantee Toney-El the right to an early release from prison, nor does his alleged substantive right fall within one of the penumbras formed by the emanations from the specific guarantees in the Bill of Rights. Toney-El simply has no substantive due process right to an early release from prison.

III.

Our inquiry does not end here because a person may be deprived of procedural due process without being deprived of substantive due process. As noted above, Toney-El had a constitutionally protected liberty interest in being released from prison before the end of his term for good behavior. McKinney, 726 F.2d at 1189. To prove a violation of procedural due process, Toney-El must show that: (1) the deprivation occurred; (2) that the deprivation occurred without due process of law; and, (3) that the defendants subjected him to the deprivation. Bigby v. City of Chicago, 766 F.2d 1053, 1056 (7th Cir.1985); Hicks, 596 F.Supp. at 1508. In the instant case, no questions arise as to the first and third components; therefore, this Court must focus on the second element of Toney-El's case, that is, whether Toney-El's deprivation of liberty occurred without due process of law.

Due process " 'calls for such procedural protection as the particular situation demands.' "...