Tucker v. Jeffreys

• Decision Date: 28 September 2021
• Docket Number: 18 C 3154
• Parties: JASON TUCKER, DANIEL BARRON, JEFFREY KRAMER, JASEN GUSTAFSON, and MARSHALL HAMPTON, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. ROB JEFFREYS, in his official capacity as Director of the Illinois Department of Corrections, and DION DIXON, in his individual capacity as Deputy Chief of the Parole Division of the Illinois Department of Corrections, Defendants.
• Court: U.S. District Court — Northern District of Illinois

JASON TUCKER, DANIEL BARRON, JEFFREY KRAMER, JASEN GUSTAFSON, and MARSHALL HAMPTON, on behalf of themselves and all similarly situated individuals, Plaintiffs, v. ROB JEFFREYS, in his official capacity as Director of the Illinois Department of Corrections, and DION DIXON, in his individual capacity as Deputy Chief of the Parole Division of the Illinois Department of Corrections, Defendants.

No. 18 C 3154

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

September 28, 2021

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

Plaintiffs Jason Tucker, Daniel Barron, Jeffrey Kramer, Jasen Gustafson and Marshall Hampton were convicted of various sex offenses served their custodial sentence, and are now on parole or reimprisoned for violating parole. As a condition of parole the Illinois Department of Corrections (“IDOC”) has restricted their access to the internet pursuant to its internet use policy. Plaintiffs bring this action under 42 U.S.C. § 1983, asserting that IDOC's policy violates several of their constitutionally protected rights. Before the Court is Defendants' motion to dismiss Plaintiffs' third amended complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below the motion is granted in part and denied in part.

I. Background^[1]

The Court presumes familiarity with its prior opinion in this case. See 9/17/19 Mem. Op. and Order, ECF No. 93. In short, Plaintiffs were convicted for committing sex offenses as defined by Illinois's Sex Offender Registration Act. Id. at 2; see 3d Am. Compl. ¶¶ 10-11, ECF No. 140. Most are serving terms of mandatory supervised release, i.e., parole; one is serving an additional custodial sentence for violating conditions of parole. On behalf of themselves and others similarly situated, they challenge a written policy of IDOC that restricts the ability of parolees in the Sex Offender Supervision Unit to access the internet. Id. ¶¶ 1-2, 78; see id., Ex. A, IDOC Sex Offender Internet Use Policy (“Internet Use Policy”), ECF No. 140-1.

The current version of the Internet Use Policy:

• Prohibits parolees whose sex offenses “involved the use of an Internet-capable device” from using or accessing any such device without express permission;

• Even when parolees are granted permission, only allows such parolees to access the internet for counseling, education, religion, and employment-related purposes;

• Gives parole agents broad discretion over the ability of parolees, whose offenses did not involve the use of an internet-capable device, to access the internet;

• Allows parole agents to withhold internet access for parolees who cannot afford to pay for costly internet monitoring software, sex offender therapy, or polygraph examinations; and

• Allows parole agents to undertake wide-ranging searches of all data found on any internet-capable devices possessed by parolees, including emails and text messages, without any showing of cause.

3d Am. Compl. ¶ 14.

The policy has been revised several times during the pendency of this action. Id. ¶ 19. And Plaintiffs challenge prior versions of the policy as well, including one that imposed a complete ban on internet access for all parolees convicted of a qualifying sex offense. Id. ¶¶ 19-20.

Tucker and Barron filed this action against IDOC's then Director, John Baldwin, on May 2, 2018. See Compl., ECF No. 1. Baldwin's first two motions to dismiss were mooted by amended complaints, the second of which included Kramer and Gustafson and asserted two counts pursuant to 42 U.S.C. § 1983: violation of Plaintiffs' First Amendment rights (Count I), and violation of their Fourteenth Amendment procedural due process rights (Count II). See 2d Am. Compl. ¶¶ 65-68, ECF No. 64. On September 17, 2019, the Court denied Baldwin's motion to dismiss the second amended complaint, for reasons discussed below to the extent relevant here. See generally 9/17/19 Mem. Op. and Order.

Plaintiffs moved to file a third amended complaint on March 17, 2020, citing the current version of the Internet Use Policy described above, effective March 1, 2020; the Court granted the motion. See 3/17/20 Tr. at 5:22-7:9, ECF No. 131. This complaint introduces various changes. First, it substitutes Baldwin for IDOC's current Director, Rob Jeffreys. See 3d Am. Compl. ¶ 8. Second, it adds Dion Dixon, IDOC's Deputy Chief of the Parole Division and the alleged primary drafter of IDOC's internet policies, as another defendant. Id. ¶ 9. Third, it adds Hampton as an additional Plaintiff. Id. ¶ 10. Fourth, it asserts two additional § 1983 claims:

violation of the Equal Protection Clause of the Fourteenth Amendment (Count III), and violation of the Fourth Amendment (Count IV). Id. ¶¶ 88-89.

Defendants have moved to dismiss the third amended complaint under Rule 12(b)(6). See Defs.' Mot. Dismiss, ECF No. 147.^[2]

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard “is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (cleaned up).

When considering a motion to dismiss, courts accept “all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). At the same time, courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim. Iqbal, 556 U.S. at 678. III. Analysis

Defendants raise a variety of arguments for dismissing the third amended complaint. The Court addresses each argument in turn.

A. Whether Counts I and IV Are Cognizable Under § 1983

Reprising an argument from Baldwin's motion to dismiss the second amended complaint, Defendants initially contend that Plaintiffs' First and Fourth Amendment claims must be brought in a habeas corpus proceeding, not a § 1983 action. Cf. Tobey v. Chibucos, 890 F.3d 634, 651 (7th Cir. 2018) (“If Tobey is seeking release from the conditions of probation imposed on him by the courts, a petition for a writ of habeas corpus is the appropriate vehicle for seeking relief, not a lawsuit for damages under section 1983.” (citing Williams v. Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003))).^[3]

In Defendants' view, these claims ultimately seek release from conditions imposed by 730 Ill. Comp. Stat. Ann. 5/3-3-7(b)(7.6). This provision authorizes the

Prison Review Board to require that parolees, who were convicted of a sex offense (as defined by the Sex Offender Registration Act) that was committed on or after June 1, 2009:

(i) not access or use a computer or any other device with Internet capability without the prior written approval of [IDOC];

(ii) submit to periodic unannounced examinations of the offender's computer or any other device with Internet capability by the offender's supervising agent, a law enforcement officer, or assigned computer or information technology specialist, including the retrieval and copying of all data from the computer or device and any internal or external peripherals and removal of such information, equipment, or device to conduct a more thorough inspection;

(iii) submit to the installation on the offender's computer or device with Internet capability, at the offender's expense, of one or more hardware or software systems to monitor the Internet use; and

(iv) submit to any other appropriate restrictions concerning the offender's use of or access to a computer or any other device with Internet capability imposed by the Board, the Department or the offender's supervising agent[.]

730 Ill. Comp. Stat. Ann. 5/3-3-7(b)(7.6).

The Court rejects this argument for much the same reasons it did previously. See 9/17/19 Mem. Op. and Order at 7-11. Contrary to Defendants' view, Plaintiffs still do not challenge the validity of the conditions permitted under subsection 5/3-3-7(b)(7.6), but rather an internal policy “governing how IDOC officials implement” those statutorily allowed conditions. See Frazier v. Baldwin, No. 18 C 1991, 2019 WL 296556, at *3 (N.D. Ill. Jan. 23, 2019) (drawing a similar distinction).

In conflating IDOC's policy with subsection 5/3-3-7(b)(7.6) Defendants ignore that this provision gives discretion to “the Prison Review Board-not IDOC.” See Id. On this basis alone, Plaintiffs would seem free to challenge the Internet Use Policy without touching the conditions allowed by that statute.^[4] Defendants also overlook the ways in which the Internet Use Policy allegedly imposes greater restrictions than those permitted under subsection 5/3-3-7(b)(7.6). For instance, the statutory conditions apply only to offenders who committed their offense on or after June 1, 2009, whereas the policy applies to “all” sex offenders, including those like Tucker and Kramer, who committed their offenses before June 1, 2009. See 3d Am. Compl. ¶¶ 35, 44; Internet Use Policy at 4-5. Furthermore, with regard to Plaintiffs' First Amendment claim, the policy does more than simply require the prior written approval contemplated under subsection 5/3-3-7(b)(7.6)(i); it prohibits certain sex offenders from accessing the internet for purposes unrelated to counseling, education, religion, or employment,...