Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 1 of 15
PC Scan,SCHENKIER
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:16−cv−11471

Murphy et al v. Madigan et al Assigned to: Honorable Virginia M. Kendall related Case: 1:20−cv−02137 Cause: 42:1983 Civil Rights Act Plaintiff Paul Murphy
Plaintiff Stanley Meyer
Plaintiff J.D. Lindenmeier
Plaintiff Keenon Smith

Date Filed: 12/19/2016 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Adele D. Nicholas Law Office of Adele D. Nicholas 5707 W. Goodman Chicago, IL 60630 847 361 3869 Email: adele@civilrightschicago.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg Attorney at Law 3612 North Tripp Chicago, IL 60641 (312) 283−3913 Email: mweinberg@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adele D. Nicholas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adele D. Nicholas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adele D. Nicholas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 2 of 15

Plaintiff Jasen Gustafsen
Plaintiff Alfred Aukema
Plaintiff Kevin Tucek individually and on behalf of all others similarly situated

represented by Adele D. Nicholas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adele D. Nicholas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adele D. Nicholas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Weinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Lisa Madigan in her official capacity as attorney general of the State of Illinois
Defendant John Baldwin in his official capacity as the Director of the Illinois Department of Corrections

represented by Thomas A. Ioppolo Illinois Attorney General's Office (100 West Randolph) 100 West Randolph Street 13th Floor Chicago, IL 60601 (312)814−7198 Email: tioppolo@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Hughes Newman Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 (312) 814−6131 Email: snewman@atg.state.il.us ATTORNEY TO BE NOTICED
represented by Thomas A. Ioppolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 3 of 15

Movant Christopher Parker

Sarah Hughes Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Parker S−07242 Ina − BMRCC 251 N. Hwy 37 Ina, IL 62846 PRO SE

Date Filed 12/19/2016 12/19/2016 12/19/2016 12/20/2016 12/22/2016 12/22/2016 12/22/2016 12/22/2016
01/03/2017 01/04/2017 01/09/2017

# Docket Text
1 COMPLAINT filed by Alfred Aukema, J.D. Lindenmeier, Kevin Tucek, Stanley Meyer, Paul Murphy, Keenon Smith, Jasen Gustafsen; JURY DEMAND. Filing fee $ 400, receipt number 0752−12679809. (Attachments: # 1 Civil Cover Sheet)(Nicholas, Adele D.) (Entered: 12/19/2016)
2 ATTORNEY Appearance for Plaintiffs Alfred Aukema, Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy, Keenon Smith, Kevin Tucek by Adele D. Nicholas (Nicholas, Adele D.) (Entered: 12/19/2016)
3 ATTORNEY Appearance for Plaintiffs Alfred Aukema, Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy, Keenon Smith, Kevin Tucek by Mark G. Weinberg (Weinberg, Mark) (Entered: 12/19/2016)
CASE ASSIGNED to the Honorable Virginia M. Kendall. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (lcw, ) (Entered: 12/20/2016)
SUMMONS Issued as to Defendants John Baldwin, Lisa Madigan (pg, ) (Entered: 12/22/2016)
4 SUMMONS Returned Executed by Alfred Aukema, J.D. Lindenmeier, Kevin Tucek, Stanley Meyer, Paul Murphy, Keenon Smith, Jasen Gustafsen as to John Baldwin on 12/22/2016, answer due 1/12/2017. (Nicholas, Adele D.) (Entered: 12/22/2016)
5 SUMMONS Returned Executed by Alfred Aukema, J.D. Lindenmeier, Kevin Tucek, Stanley Meyer, Paul Murphy, Keenon Smith, Jasen Gustafsen as to Lisa Madigan on 12/22/2016, answer due 1/12/2017. (Nicholas, Adele D.) (Entered: 12/22/2016)
6 MINUTE entry before the Honorable Virginia M. Kendall. Initial status hearing set for 1/26/2017 at 9:00 a.m. Joint Status Report due by 1/23/2016. The parties are directed to Judge Kendall's web page found at www.ilnd.uscourts.gov for information about the Initial Status Report and for information regarding all standing orders for cases on Judge Kendall's docket. The parties shall follow all of the standing orders for Judge Kendall and all Local Rules which can be found at the same web page. For the Initial Status Report, the parties are to report on the following: (1) Possibility of settlement in the case; (2) if no possibility of settlement exists, the nature and length of discovery necessary (with specific dates) to get the case ready for trial; 3) whether the parties jointly consent to proceed before the Magistrate Judge. Prior to the Initial Status Hearing, the Parties are to exchange initial disclosures (Fed. R. Civ. P. 26(a)(1)). At the Initial Status Hearing, the Parties shall be prepared to inform the Court about the extent of monetary damages in order for the Court to address the proportionality of discovery as required by Fed. R. Civ. P. 26. Lead counsel is directed to appear at this status hearing. Mailed notice (lk, ) (Entered: 12/22/2016)
7 ATTORNEY Appearance for Defendant Lisa Madigan by Sarah Hughes Newman (Newman, Sarah) (Entered: 01/03/2017)
8 ATTORNEY Appearance for Defendant Lisa Madigan by Thomas A. Ioppolo (Ioppolo, Thomas) (Entered: 01/04/2017)
9 ATTORNEY Appearance for Defendant John Baldwin by Sarah Hughes Newman (Newman, Sarah) (Entered: 01/09/2017)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 4 of 15

01/10/2017 01/11/2017 01/11/2017 01/12/2017
02/17/2017 02/17/2017 02/17/2017 02/17/2017 02/21/2017
02/22/2017 02/22/2017 02/23/2017 03/02/2017
03/14/2017 03/28/2017 05/25/2017 06/14/2017

10 ATTORNEY Appearance for Defendant John Baldwin by Thomas A. Ioppolo (Ioppolo, Thomas) (Entered: 01/10/2017)
11 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file answer regarding complaint, 1 unopposed (Newman, Sarah) (Entered: 01/11/2017)
12 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file answer, motion for relief 11 before Honorable Virginia M. Kendall on 1/23/2017 at 09:00 AM. (Newman, Sarah) (Entered: 01/11/2017)
13 MINUTE entry before the Honorable Virginia M. Kendall. Motion for extension of time to answer 11 is granted. Answer due by 2/17/2017. Joint Status Report due by 2/27/2017. Initial Status hearing reset for 3/2/2017 at 9:00 AM. Motion hearing set for 1/23/2017 is stricken. Mailed notice (lk, ) (Entered: 01/12/2017)
14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Newman, Sarah) (Entered: 02/17/2017)
15 NOTICE of Motion by Sarah Hughes Newman for presentment of Motion to Dismiss for Failure to State a Claim 14 before Honorable Virginia M. Kendall on 2/27/2017 at 09:00 AM. (Newman, Sarah) (Entered: 02/17/2017)
16 MOTION by Defendants John Baldwin, Lisa Madigan for leave to file excess pages (unopposed) (Attachments: # 1 Exhibit A, Proposed memorandum in support of motion to dismiss)(Newman, Sarah) (Entered: 02/17/2017)
17 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for leave to file excess pages 16 before Honorable Virginia M. Kendall on 2/27/2017 at 09:00 AM. (Newman, Sarah) (Entered: 02/17/2017)
18 MINUTE entry before the Honorable Virginia M. Kendall. Briefing schedule set as to Defendants' Motion to Dismiss for Failure to State a Claim 14 . Responses due by 3/7/2017. Replies due by 3/14/2017. Status hearing set for 5/2/2017 at 9:00 AM. Initial Status hearing set for 3/2/2017 stands. Mailed notice (lk, ) (Entered: 02/21/2017)
19 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for leave to file excess pages 16 is granted. Motion hearing set for 2/27/2017 is stricken. Mailed notice (lk, ) (Entered: 02/22/2017)
20 MEMORANDUM by John Baldwin, Lisa Madigan in support of Motion to Dismiss for Failure to State a Claim 14 (Newman, Sarah) (Entered: 02/22/2017)
21 STATUS Report (Joint Initial Status Report) by Alfred Aukema, Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy, Keenon Smith, Kevin Tucek (Nicholas, Adele D.) (Entered: 02/23/2017)
22 MINUTE entry before the Honorable Virginia M. Kendall. Initial Status hearing held on 3/2/2017. Parties' oral motions to extend briefing schedule set for Defendants' Motion to Dismiss for Failure to State a Claim 14 are granted. Responses due by 3/14/2017. Replies due by 3/28/2017. Status hearing set for 5/30/2017 at 9:00 AM. Plaintiffs' oral motion to file excess pages for response brief is granted to 20 pages. Mailed notice (lk, ) (Entered: 03/02/2017)
23 RESPONSE by Alfred Aukema, Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy, Keenon Smith, Kevin Tucekin Opposition to MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 14 (Nicholas, Adele D.) (Entered: 03/14/2017)
24 REPLY by John Baldwin, Lisa Madigan to response in opposition to motion 23 and in further support of motion to dismiss (Dkt. 14) (Newman, Sarah) (Entered: 03/28/2017)
25 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing set for 5/30/2017 is reset for 6/20/2017 at 9:00 AM. Mailed notice (lk, ) (Entered: 05/25/2017)
26 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing set for 6/20/2017 is reset for 6/28/2017 at 9:00 AM. Mailed notice (lk, ) (Entered: 06/14/2017)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 5 of 15

06/23/2017 07/06/2017 07/19/2017 08/09/2017 08/18/2017
08/23/2017
09/18/2017 09/18/2017 09/19/2017 10/04/2017 10/04/2017 10/05/2017
10/05/2017
10/18/2017

27 MINUTE entry before the Honorable Virginia M. Kendall: Status hearing set for 6/28/2017 is reset to 7/6/2017 at 09:00 AM.Mailed notice (clw, ) (Entered: 06/23/2017)
28 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 7/6/2017, and continued for 7/20/2017 at 9:00 AM. Mailed notice (lk, ) (Entered: 07/06/2017)
29 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing reset for 8/10/2017 at 9:00 AM. Mailed notice (lk, ) (Entered: 07/19/2017)
30 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing set for 8/10/2017 is reset for 8/23/2017 at 9:00 AM. Mailed notice (lk, ) (Entered: 08/09/2017)
31 MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 8/18/2017. Defendants' Motion to Dismiss 14 is granted with respect to Plaintiffs Aukema an Tucek's claims. The Motion is also granted with respect to the void for vagueness due process claim. The Motion is denied with respect to the remaining counts. Mailed notice(lk, ) (Entered: 08/18/2017)
32 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 8/23/2017. Answer to Complaint due by 9/20/2017. End of Fact Discovery ordered closed by 11/8/2017. End of Fact Discovery Status hearing set for 11/9/2017 at 9:00 AM. The parties shall be prepared to report to the court whether a dispositive motion will be filed, and whether expert discovery is necessary. The Illinois Department of Corrections shall permit the deposition of incarcerated Plaintiffs. Parties are directed to contact the courtroom deputy if they wish to schedule a settlement conference. Mailed notice (lk, ) (Entered: 08/23/2017)
33 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file answer regarding complaint, 1 Unopposed (Newman, Sarah) (Entered: 09/18/2017)
34 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file answer 33 before Honorable Virginia M. Kendall on 9/25/2017 at 09:00 AM. (Newman, Sarah) (Entered: 09/18/2017)
35 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for extension of time to answer 33 is granted. Answer shall be filed on or before 10/4/2017. Motion hearing set for 9/25/2017 is stricken. Mailed notice (lk, ) (Entered: 09/19/2017)
36 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to complete discovery (Joint, agreed), MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file answer regarding complaint, 1 Unopposed (Newman, Sarah) (Entered: 10/04/2017)
37 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to complete discovery,, motion for extension of time to file answer, 36 before Honorable Virginia M. Kendall on 10/11/2017 at 09:00 AM. (Newman, Sarah) (Entered: 10/04/2017)
38 MINUTE entry before the Honorable Virginia M. Kendall. Parties' Joint Motion for extension of time to complete Discovery and 36 is granted. Answer shall be due on or before 10/18/2017. End of Fact Discovery ordered closed by 2/6/2018. End of Fact Discovery Status hearing set for 2/8/2018 at 9:00 AM. Motion hearing set for 10/11/2017 is stricken. Mailed notice (lk, ) (Entered: 10/05/2017)
39 MINUTE entry (Corrected) before the Honorable Virginia M. Kendall. Parties' Joint Motion for extension of time to complete Discovery and answer Complaint 36 is granted. Answer shall be due on or before 10/18/2017. End of Fact Discovery ordered closed by 2/6/2018. End of Fact Discovery Status hearing set for 2/8/2018 at 9:00 AM. Motion hearing set for 10/11/2017 is stricken. Mailed notice (lk, ) (Entered: 10/05/2017)
40 ANSWER to Complaint and Affirmative Defenses by John Baldwin, Lisa Madigan(Newman, Sarah) (Entered: 10/18/2017)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 6 of 15

12/06/2017 12/06/2017 12/11/2017 12/11/2017 12/28/2017 12/28/2017 12/29/2017
02/02/2018 02/02/2018 02/02/2018 02/05/2018
02/16/2018
03/05/2018 03/06/2018 03/06/2018 03/06/2018 03/09/2018

41 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to certify class (Nicholas, Adele D.) (Entered: 12/06/2017)
42 NOTICE of Motion by Adele D. Nicholas for presentment of motion to certify class 41 before Honorable Virginia M. Kendall on 12/13/2017 at 09:00 AM. (Nicholas, Adele D.) (Entered: 12/06/2017)
43 MINUTE entry before the Honorable Virginia M. Kendall. Briefing schedule set as to Plaintiffs' Motion to certify class 41 . Responses due by 1/3/2018. Replies due by 1/10/2018. Mailed notice (lk, ) (Entered: 12/11/2017)
44 MINUTE entry before the Honorable Virginia M. Kendall. Motion hearing set for 12/13/2017 is stricken. Mailed notice (lk, ) (Entered: 12/11/2017)
45 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file response/reply as to motion to certify class 41 (Unopposed) (Newman, Sarah) (Entered: 12/28/2017)
46 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file response/reply 45 before Honorable Virginia M. Kendall on 1/3/2018 at 09:00 AM. (Newman, Sarah) (Entered: 12/28/2017)
47 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for extension of time to file response/reply 45 regarding Motion to certify class 41 is granted. Response due by 2/2/2018. Reply due by 2/16/2018. Motion hearing set for 1/3/2018 is stricken. Mailed notice (lk, ) (Entered: 12/29/2017)
48 RESPONSE by John Baldwin, Lisa Madigan to MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to certify class 41 (Newman, Sarah) (Entered: 02/02/2018)
49 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for extension of time to complete discovery Unopposed Motion (Nicholas, Adele D.) (Entered: 02/02/2018)
50 NOTICE of Motion by Adele D. Nicholas for presentment of motion for extension of time to complete discovery 49 before Honorable Virginia M. Kendall on 2/8/2018 at 09:00 AM. (Nicholas, Adele D.) (Entered: 02/02/2018)
51 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Unopposed Motion for extension of time to complete Discovery 49 is granted. End of Fact Discovery extended and ordered closed by 3/8/2018. End of Fact Discovery Status hearing reset for 3/12/2018 at 9:00 AM. Motion and Status hearings set for 2/8/2018 are stricken. Mailed notice (lk, ) (Entered: 02/05/2018)
52 REPLY by Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to certify class 41 , response to motion 48 (Nicholas, Adele D.) (Entered: 02/16/2018)
53 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing set for 3/12/2018 is reset for 4/9/2018 at 9:00 AM. Mailed notice (lk, ) (Entered: 03/05/2018)
54 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to compel Defendant Lisa Madigan to Identify and Produce a 30(b)(6) Witness (Nicholas, Adele D.) (Entered: 03/06/2018)
55 NOTICE of Motion by Adele D. Nicholas for presentment of motion to compel 54 before Honorable Virginia M. Kendall on 3/12/2018 at 09:00 AM. (Nicholas, Adele D.) (Entered: 03/06/2018)
56 APPENDIX motion to compel 54 (Attachments: # 1 Exhibit, # 2 Exhibit)(Nicholas, Adele D.) (Entered: 03/06/2018)
57 RESPONSE by Lisa Madiganin Opposition to MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to compel Defendant Lisa Madigan to Identify and Produce a 30(b)(6) Witness 54 (Attachments: # 1 Exhibit A, Notice of 30(b)(6) Deposition to Lisa Madigan, # 2 Exhibit B, Lisa Madigan's Responses to Plaintiffs' Interrogatories, # 3 Exhibit C, 3/1/2018 Letter from S. Newman to Plaintiffs'

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 7 of 15

03/12/2018 03/12/2018 03/14/2018
03/14/2018 03/28/2018 04/06/2018 05/16/2018 05/17/2018 06/05/2018 06/11/2018 06/20/2018
07/06/2018 07/06/2018

counsel)(Newman, Sarah) (Entered: 03/09/2018)
58 MINUTE entry before the Honorable Virginia M. Kendall. Motion hearing held on 3/12/2018. Plaintiffs' Motion to compel 54 is referred to Magistrate Judge Schenkier. The case will be referred to Magistrate Judge Schenkier for Discovery Supervision. End of Fact Discovery extended and ordered closed by 6/8/2018. End of Fact Discovery Status hearing set for 6/11/2018. Mailed notice (lk, ) (Entered: 03/12/2018)
59 EXECUTIVE COMMITTEE ORDER: Case referred to the Honorable Sidney I. Schenkier for motion 54 . Signed by Executive Committee on 3/12/18. (kp, ) (Entered: 03/13/2018)
60 MINUTE entry before the Honorable Sidney I. Schenkier: The case has been referred to this Court for discovery supervision, and for ruling on plaintiffs' motion to compel (doc. # 54 ). Defendant Madigan has filed a response to the motion (doc. # 57 ). If plaintiffs wish to file a reply, they shall do so by noon on 3/16/18. We set the matter for a status and motion hearing on 3/20/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 03/14/2018)
61 MINUTE entry before the Honorable Sidney I. Schenkier: At the request of the parties, the status and motion hearings regarding plaintiffs' motion to compel (doc. # 54 )set for 3/20/18 before the magistrate judge are RESET to 3/28/18 at 10:00 a.m. Mailed notice. (jj, ) (Entered: 03/14/2018)
62 MINUTE entry before the Honorable Sidney I. Schenkier: Status and motion hearings held. The parties report on the status of discovery. For the reasons stated on the record, plaintiffs' motion to compel (doc. # 54 ) is denied. The matter is set for a status hearing before the magistrate judge on 5/16/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 03/28/2018)
63 ORDER signed by the Honorable Virginia M. Kendall on 4/6/2018. Plaintiff's Motion to certify class and the appointment of class counsel 41 are both granted. Mailed notice(lk, ) (Entered: 04/06/2018)
64 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of discovery. The matter is set for a status hearing before the magistrate judge on 5/31/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 05/16/2018)
65 MINUTE entry before the Honorable Sidney I. Schenkier: The Court, sua sponte, RESETS the status hearing set for 5/31/18 before the magistrate judge to 6/05/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 05/17/2018)
66 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of discovery. The parties are further instructed to submit their proposed protective order to Judge Schenkier's proposed order box as soon as practicable. The matter is set for a status hearing before the magistrate judge on 6/20/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 06/05/2018)
67 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 6/11/2018. Motions for Summary Judgment shall be filed by 7/11/2018. Responses due by 8/8/2018. Replies due by 8/22/2018. Ruling will be by mail. Mailed notice (lk, ) (Entered: 06/12/2018)
68 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report that discovery has been completed and that they will proceed with the summary judgment motion schedule set forth by the district judge. The parties are further instructed to submit their proposed protective order to Judge Schenkier's proposed order box by no later than 6/22/18. The Court will not set a further status hearing at this time. Mailed notice. (jj, ) (Entered: 06/20/2018)
69 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to set a briefing schedule (Joint Motion) (Nicholas, Adele D.) (Entered: 07/06/2018)
70 NOTICE of Motion by Adele D. Nicholas for presentment of motion by filer to set a briefing schedule 69 before Honorable Virginia M. Kendall on 7/11/2018 at 09:00 AM. (Nicholas, Adele D.) (Entered: 07/06/2018)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 8 of 15

07/09/2018
07/31/2018 07/31/2018 08/01/2018
08/10/2018 08/10/2018 08/10/2018 08/10/2018 08/13/2018 08/14/2018
09/05/2018 09/05/2018 09/06/2018 09/07/2018

71 MINUTE entry before the Honorable Virginia M. Kendall. Parties' Joint Motion to reset the briefing schedule on Parties' Cross Motions for Summary Judgment 69 is granted. Plaintiff's Motion for Summary Judgment shall be filed by 8/2/2018. Defendants' response/cross Motion for Summary Judgment Responses due by 8/30/2018. Plaintiffs' response/reply due 9/20/2018. Defendants' reply due by 10/11/2018. Ruling will be by mail. Motion hearing set for 7/11/2018 is stricken. Mailed notice (lk, ) (Entered: 07/09/2018)
72 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for extension of time to file their motion for summary judgment (unopposed) (Nicholas, Adele D.) (Entered: 07/31/2018)
73 NOTICE of Motion by Adele D. Nicholas for presentment of motion for extension of time to file 72 before Honorable Virginia M. Kendall on 8/2/2018 at 09:00 AM. (Nicholas, Adele D.) (Entered: 07/31/2018)
74 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Motion for extension of time to file Motion for Summary Judgment 72 is granted. Plaintiff's Motion for Summary Judgment shall be filed by 8/9/2018. Defendants' response/cross Motion for Summary Judgment Responses due by 9/6/2018. Plaintiffs' response/reply due 9/27/2018. Defendants' reply due by 10/18/2018. Ruling will be by mail. Motion hearing set for 8/2/2018 is stricken. Mailed notice (lk, ) (Entered: 08/01/2018)
75 MOTION by Plaintiffs J.D. Lindenmeier, Stanley Meyer, Paul Murphy, Jasen Gustafsen for summary judgment (Nicholas, Adele D.) (Entered: 08/10/2018)
76 RULE 56 Local Rule 56.1(a) Statement by Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy regarding motion for summary judgment 75 (Nicholas, Adele D.) (Entered: 08/10/2018)
77 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for leave to file instanter their Summary Judgment Brief and L.R. 56.1 Statement (Unopposed) (Nicholas, Adele D.) (Entered: 08/10/2018)
78 NOTICE of Motion by Adele D. Nicholas for presentment of motion for leave to file 77 before Honorable Virginia M. Kendall on 8/20/2018 at 09:00 AM. (Nicholas, Adele D.) (Entered: 08/10/2018)
79 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Unopposed Motion for leave to file brief and statement of facts instanter 77 is granted. Motion hearing set for 8/20/2018 is stricken. Mailed notice (lk, ) (Entered: 08/13/2018)
80 APPENDIX Rule 56 statement 76 , motion for summary judgment 75 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit)(Nicholas, Adele D.) (Entered: 08/14/2018)
81 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file response/reply as to motion for summary judgment 75 and cross−motion for summary judgment (Newman, Sarah) (Entered: 09/05/2018)
82 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file response/reply 81 before Honorable Virginia M. Kendall on 9/14/2018 at 09:00 AM. (Newman, Sarah) (Entered: 09/05/2018)
83 RESPONSE by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to motion for extension of time to file response/reply 81 (Nicholas, Adele D.) (Entered: 09/06/2018)
84 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Motion for extension of time to file response 81 to Motion for Summary Judgment 75 is granted to 11/5/2018. Response due by 11/5/2018. Reply due by 11/26/2018. Motion hearing set for 9/14/2018 is stricken. Mailed notice (lk, ) (Entered: 09/07/2018)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 9 of 15

11/05/2018 11/05/2018 11/07/2018
11/20/2018 11/20/2018 11/20/2018 11/20/2018 11/20/2018
11/21/2018 11/21/2018 11/21/2018
11/28/2018 11/28/2018

85 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file response/reply as to motion for summary judgment 75 & Defendants' motion for summary judgment (unopposed) (Newman, Sarah) (Entered: 11/05/2018)
86 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file response/reply 85 before Honorable Virginia M. Kendall on 11/9/2018 at 09:00 AM. (Newman, Sarah) (Entered: 11/05/2018)
87 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for extension of time to file response 85 regarding Motion for Summary Judgment 75 is granted. Defendants' response/cross Motion for Summary Judgment Responses due by 11/20/2018. Plaintiffs' response/reply due 12/11/2018. Ruling will be by mail. Motion hearing set for 11/9/2018 is stricken.Mailed notice (lk, ) (Entered: 11/07/2018)
88 MOTION by Defendants John Baldwin, Lisa Madigan for summary judgment (Newman, Sarah) (Entered: 11/20/2018)
89 MEMORANDUM by John Baldwin, Lisa Madigan in support of motion for summary judgment 88 and in opposition to Plaintiffs' motion for summary judgment (Dkt. 75) (Newman, Sarah) (Entered: 11/20/2018)
90 RULE 56 (a) Statement by John Baldwin, Lisa Madigan regarding motion for summary judgment 88 (Defendants' L.R. 56.1 Statement of Undisputed Facts) (Newman, Sarah) (Entered: 11/20/2018)
91 RESPONSE by Defendants John Baldwin, Lisa Madigan to Rule 56 statement 76 (Newman, Sarah) (Entered: 11/20/2018)
92 APPENDIX Rule 56 statement 90 , Response 91 , motion for summary judgment 88 in support of Defendants' motion for summary judgment (Dkt. 88) and in opposition to Plaintiffs' summary judgment motion (Dkt. 75) (Attachments: # 1 Exhibit 1, Declaration of Dion Dixon, # 2 Exhibit 2, Interstate Commission for Adult Offender Supervision Rules (excerpted), # 3 Exhibit 3, Chicago Tribune article dated Dec. 6, 2009, # 4 Exhibit 4, Chicago Tribune article dated July 17, 2015, # 5 Exhibit 5, IDOC Administrative Directive No. 04.01.114, Local Offender Grievance Procedures, # 6 Exhibit 6, Illinois Sex Offender Registry Record for Cinszeo Doss, # 7 Exhibit 7, Illinois Sex Offender Registry Record for Charles Dobson, # 8 Exhibit 8, Illinois Sex Offender Registry Record for Jonathan Sparks, # 9 Exhibit 9, Illinois Sex Offender Registry Record for Antoine Lamb)(Newman, Sarah) (Entered: 11/20/2018)
93 MOTION by Defendants John Baldwin, Lisa Madigan for leave to file excess pages instanter (Unopposed) (Newman, Sarah) (Entered: 11/21/2018)
94 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for leave to file excess pages 93 before Honorable Virginia M. Kendall on 12/20/2018 at 10:00 AM. (Newman, Sarah) (Entered: 11/21/2018)
95 APPENDIX Rule 56 statement 90 , Response 91 , motion for summary judgment 88 in support of Defendants' motion for summary judgment (Dkt. 88) and in opposition to Plaintiffs' summary judgment motion (Dkt. 75) (Exhibits 6−9 redacted) (Attachments: # 1 Exhibit 1, Declaration of Dion Dixon, # 2 Exhibit 2, Interstate Commission for Adult Offender Supervision Rules (excerpted), # 3 Exhibit Chicago Tribune article dated Dec. 6, 2009, # 4 Exhibit 4, Chicago Tribune article dated July 17, 2015, # 5 Exhibit IDOC Administrative Directive No. 04.01.114, Local Offender Grievance Procedures, # 6 Exhibit 6, Illinois Sex Offender Registry Record for Cinszeo Doss (redacted), # 7 Exhibit 7, Illinois Sex Offender Registry Record for Charles Dobson (redacted), # 8 Exhibit 8, Illinois Sex Offender Registry Record for Jonathan Sparks (redacted), # 9 Exhibit 9, Illinois Sex Offender Registry Record for Antoine Lamb (redacted))(Newman, Sarah) (Entered: 11/21/2018)
96 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for extension of time to file response/reply as to motion for summary judgment 88 (Nicholas, Adele D.) (Entered: 11/28/2018)
97 NOTICE of Motion by Adele D. Nicholas for presentment of motion for extension of time to file response/reply 96 before Honorable Virginia M. Kendall on 12/6/2018 at 09:00 AM. (Nicholas, Adele D.) (Entered: 11/28/2018)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 10 of 15

12/03/2018 12/03/2018 12/10/2018 12/17/2018 12/17/2018 12/18/2018 12/20/2018
01/08/2019 01/12/2019 01/12/2019

98 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for leave to file excess pages instanter 93 is granted. Motion hearing set for 12/20/2018 is stricken. Mailed notice (lk, ) (Entered: 12/03/2018)
99 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Unopposed Motion for extension of time to file response/reply 96 regarding Motions for Summary Judgment 75 and 88 is granted. Responses due by 12/21/2018. Replies due by 1/25/2019. Motion hearing set for 12/6/2018 is stricken. Mailed notice (lk, ) (Entered: 12/03/2018)
100 MOTION to intervene (Envelope postmark 11/30/2018) (bg, ) (Entered: 12/11/2018)
101 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for extension of time to file response/reply in support of their motion for summary judgment (Nicholas, Adele D.) (Entered: 12/17/2018)
102 NOTICE of Motion by Adele D. Nicholas for presentment of motion for extension of time to file response/reply 101 before Honorable Virginia M. Kendall on 12/20/2018 at 10:00 AM. (Nicholas, Adele D.) (Entered: 12/17/2018)
103 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Unopposed Motion for extension of time to file their Response/Reply 101 regarding Motions for Summary Judgment 75 and 88 is granted. Responses due by 1/11/2019. Replies due by 2/8/2019. Motion hearing set for 12/20/2018 is stricken. Mailed notice (lk, ) (Entered: 12/18/2018)
104 MINUTE entry before the Honorable Virginia M. Kendall. Class member Christopher C. Parker filed what he styled as a "motion to intervene" 100 emphasizing a legal argument regarding the State's sentencing scheme. Mr. Parker is already a party in this case (at least for the substantive basis of this motion, arguing the law) and the purpose of intervention is to become a party, so the motion is improper. See Kifer v. Ellsworth, 346 F.3d 1155, 1156 (7th Cir. 2003). Additionally, the Court cannot construe the motion as one made to opt out of the class because there is no right to opt out of a Rule 23(b)(2) class action, and in the Court's discretion, doing so here is unnecessary anyway. See id. at 1157; see also Gray v. Hardy, 826 F.3d 1000, 1009 (7th Cir. 2016). The existing parties adequately represent Mr. Parker's interests, and he does not contend that there are any factual or legal distinctions that make his situation different from that of the named class representatives. See Zbaraz v. Madigan, 572 F.3d 370, 377 (7th Cir. 2009); see also Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877, 880 (7th Cir. 2000) (stating that the only time a class member should need to intervene is if she thinks that the representative is not acting in her best interests). In fact, the point that Mr. Parker raises in his motion is consistent with the plaintiff's position in this case. Should Mr. Parker want to individually sue (for money damages) in the future, he will likely be able to do so. See Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016), cert. denied sub nom. City of Memphis, Tenn. v. Cole, 137 S. Ct. 2220 (2017); Berry v. Schulman, 807 F.3d 600, 61112 (4th Cir. 2015). But for now, the operating assumption is that "because the relief sought is uniform, so are the interests of the class members..." Berry, 807 F.3d at 612. So the Court decided when it certified the class. See Fed. R. Civ. P. 23 (requiring the court to find that the interests of all of the class members will be fairly and adequately represented by the named plaintiffs and class counsel). Mr. Parker failed to allege facts that might change this conclusion. The Court accordingly denies his motion to intervene 100 .Mailed notice (lk, ) (Entered: 12/20/2018)
105 MINUTE entry before the Honorable Sidney I. Schenkier: All matters subject to the referral having been concluded, the referral is hereby terminated. Mailed notice. (jj, ) (Entered: 01/08/2019)
106 RESPONSE by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to motion for summary judgment 88 , motion for summary judgment 75 Combined Response to Defendants' Motion for Summary Judgment and Reply in Support of Plaintiffs' Motion for Summary Judgment (Nicholas, Adele D.) (Entered: 01/12/2019)
107 RULE 56 (b)(3) Statement by Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy regarding motion for summary judgment 88 , motion for summary judgment 75 (Response to Defendants' Statement of Material Facts) (Nicholas, Adele D.)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 11 of 15

01/12/2019
01/12/2019
01/14/2019 01/15/2019 01/15/2019 01/15/2019 01/17/2019
01/17/2019 02/01/2019 02/01/2019 02/04/2019 02/08/2019 02/08/2019 02/13/2019

(Entered: 01/12/2019)
108 RULE 56 (b)(3)(c) Statement by Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy regarding motion for summary judgment 88 , motion for summary judgment 75 (Statement of Additional Material Facts Requiring the Denial of Defendants' Motion for Summary Judgment) (Nicholas, Adele D.) (Entered: 01/12/2019)
109 APPENDIX Response, 106 , Rule 56 statement, 107 , Rule 56 statement, 108 Appendix of Exhibits In Support of Response to Defendants' Motion for Summary Judgment (Attachments: # 1 Exhibit 36: Declaration of Jason Tucker, # 2 Exhibit 37: Declaration of Nicole Uhlir, # 3 Exhibit 38: Declaration of Jennifer Tyree, # 4 Exhibit 39: Declaration of Michael DiMichele, # 5 Exhibit 40: Declaration of Bill Carney, # 6 Exhibit 41: Declaration of Daniel Barron, # 7 Exhibit 42: Declaration of Robin Frazier)(Nicholas, Adele D.) (Entered: 01/12/2019)
110 MAIL RETURNED, for document # 104 sent to Christopher Parker returned as undeliverable, return to sender. New address found, re−mailed to Ina− BMRCC 251 N. Illinois Hwy. 37 Ina, IL 62846 (pj, ) (Entered: 01/14/2019)
111 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for leave to file instanter their reply in support of their motion for summary judgment (Nicholas, Adele D.) (Entered: 01/15/2019)
112 NOTICE of Motion by Adele D. Nicholas for presentment of motion for leave to file 111 before Honorable Virginia M. Kendall on 1/22/2019 at 09:00 AM. (Nicholas, Adele D.) (Entered: 01/15/2019)
113 MOTION by Movant Christopher Parker to intervene (Envelope postmarked 1/10/2019). (ew, ) (Entered: 01/16/2019)
114 MINUTE entry before the Honorable Virginia M. Kendall. Class member Christopher C. Parker filed a second "motion to intervene" 113 essentially re−raising the legal argument from his first motion 100 . The Court denied that motion because Mr. Parker is already a class member and the existing parties adequately represent his interests. Indeed, Mr. Parker's contentions remain consistent with the Plaintiffs' position in this case. It is therefore unnecessary for Mr. Parker to intervene because the parties are finishing their briefing regarding the pending Motion for Summary Judgment 88 that the Court will then rule on in due course. Accordingly, the Court denies Mr. Parker's motion to intervene 113 . Mailed notice (lk, ) (Entered: 01/17/2019)
115 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Unopposed Motion for leave to file their reply brief instanter 111 is granted. Motion hearing set for 1/22/2019 is stricken. Mailed notice (lk, ) (Entered: 01/17/2019)
116 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for leave to file a Supplemental Authority Memorandum (Attachments: # 1 Supplement Supplemental Authority Memorandum, # 2 Exhibit Decision in Frazier v. Baldwin)(Nicholas, Adele D.) (Entered: 02/01/2019)
117 NOTICE of Motion by Adele D. Nicholas for presentment of motion for leave to file, 116 before Honorable Virginia M. Kendall on 2/12/2019 at 01:00 PM. (Nicholas, Adele D.) (Entered: 02/01/2019)
118 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Motion for leave to file supplemental authority memorandum 116 is granted. Motion hearing set for 2/12/2019 is stricken. Mailed notice (lk, ) (Entered: 02/04/2019)
119 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file response/reply as to Response, 106 (Unopposed) (Newman, Sarah) (Entered: 02/08/2019)
120 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file response/reply 119 before Honorable Virginia M. Kendall on 2/14/2019 at 09:00 AM. (Newman, Sarah) (Entered: 02/08/2019)
121 ENTERED IN ERROR (lk, ) Modified on 2/13/2019 (lk, ). (Main Document 121 replaced on 2/13/2019) (lk, ). (Entered: 02/13/2019)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 12 of 15

02/13/2019
03/11/2019 03/11/2019 03/12/2019 03/13/2019 03/21/2019
03/21/2019 03/21/2019 03/21/2019 03/26/2019 03/31/2019
04/18/2019 04/24/2019 05/01/2019 06/10/2019

122 MINUTE entry (Corrected) before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for extension of time to file Reply 119 regarding Cross Motion for summary judgment 88 is granted in part. Reply shall be due by 3/11/2019. Motion hearing set for 2/14/2019 is stricken. Minute Entry 121 was entered in error. Mailed notice (lk, ) (Entered: 02/13/2019)
123 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file response/reply as to Response, 106 (Newman, Sarah) (Entered: 03/11/2019)
124 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file response/reply 123 before Honorable Virginia M. Kendall on 3/14/2019 at 09:00 AM. (Newman, Sarah) (Entered: 03/11/2019)
125 MOTION by Christopher Parker to intervene; Exhibits. (ew, ) (Entered: 03/12/2019)
126 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Motion for extension of time to file reply 123 in support of their Cross Motion for Summary Judgment is granted in part. Reply shall be filed by 3/21/2019. Motion hearing set for 3/14/2019 is stricken. Mailed notice (lk, ) (Entered: 03/13/2019)
127 REPLY by John Baldwin, Lisa Madigan to Response, 106 in further support of their motion for summary judgment (Attachments: # 1 Exhibit 10, "California seek ssolutions to homeless sex offender rate", # 2 Exhibit 11, "The Challenges of GPS and Sex Offender Management", # 3 Exhibit 12, "Homeless offenders create gaps in Wisconsin's GPS monitoring system", # 4 Exhibit 13, "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions")(Newman, Sarah) (Entered: 03/21/2019)
128 RESPONSE by Defendants John Baldwin, Lisa Madigan to Rule 56 statement, 108 (Newman, Sarah) (Entered: 03/21/2019)
129 MOTION by Defendants John Baldwin, Lisa Madigan for leave to file excess pages (Unopposed) (Newman, Sarah) (Entered: 03/21/2019)
130 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for leave to file excess pages 129 before Honorable Virginia M. Kendall on 3/27/2019 at 09:00 AM. (Newman, Sarah) (Entered: 03/21/2019)
131 MINUTE entry before the Honorable Virginia M. Kendall. Defendants Unopposed Motion for leave to file excess pages 129 is granted. Motion hearing set for 3/27/2019 is stricken. Mailed notice (lk, ) (Entered: 03/26/2019)
132 MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 3/31/2019. The Court grants in part and denies in part Plaintiffs' Motion for Summary Judgment 75 . The Court grants Plaintiffs' Motion for Summary Judgment 75 as to their equal protection (Count II) and Eighth Amendment claims (Count IV) and denies it as to their substantive (Count I) and procedural (Count III) due process claims. The Court denies Defendants' cross−motion for Summary Judgment 88 in full. Status hearing set for 4/22/2019 at 9:00 AM to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief. Mailed notice(lk, ) (Entered: 03/31/2019)
133 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing set for 4/22/2019 is reset for 4/24/2019 at 9:00 AM. Mailed notice (lk, ) (Entered: 04/18/2019)
134 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 4/24/2019. By request and agreement of parties, a Settlement Conference is set for 5/1/2019 at 1:30 PM. Mailed notice (lk, ) (Entered: 04/25/2019)
135 MINUTE entry before the Honorable Virginia M. Kendall. Settlement conference held on 5/1/2019, and by agreement of parties, continued for 6/17/2019 at 10:00 AM. Mailed notice (lk, ) (Entered: 05/01/2019)
136 MINUTE entry before the Honorable Virginia M. Kendall. On the Court's own Motion and by agreement of parties, Settlement Conference reset for 6/18/2019 at 10:30 AM. Mailed notice (lk, ) (Entered: 06/10/2019)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 13 of 15

06/18/2019 07/31/2019 08/15/2019 08/23/2019 08/27/2019 09/23/2019 10/01/2019 10/15/2019 10/17/2019 11/08/2019 11/08/2019 11/18/2019
11/19/2019 12/03/2019 12/09/2019
12/11/2019

137 MINUTE entry before the Honorable Virginia M. Kendall. Settlement conference held on 6/18/2019, and by agreement of parties, continued for 8/23/2019 at 1:00 PM. Mailed notice (lk, ) (Entered: 06/20/2019)
138 LETTER from Antonio Castro dated 7/26/19. (Illegible Envelope Postmark date) (gcy, ) (Entered: 08/01/2019)
139 LETTER from Keith B. Newton dated 8/8/19. (No Envelope Postmark date). (gcy, ) (Entered: 08/16/2019)
140 MINUTE entry before the Honorable Virginia M. Kendall. Settlement conference held on 8/23/2019 and by agreement of parties, continued for 10/1/2019 at 12:30 PM.Mailed notice (lk, ) (Entered: 08/23/2019)
141 LETTER from Juan Nova dated 8/22/19. (Envelope Postmark date 8/23/19). (gcy, ) (Entered: 08/29/2019)
142 NOTICE by John Baldwin, Lisa Madigan of attorney withdrawal (Ioppolo, Thomas) (Entered: 09/23/2019)
143 MINUTE entry before the Honorable Virginia M. Kendall. Settlement conference held on 10/1/2019. Plaintiffs are to seek an injunction by 10/15/2019. Defendants will respond by 11/12/2019. Status hearing set for 11/21/2019 at 9:00 AM.Mailed notice (lk, ) (Entered: 10/02/2019)
144 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for order Plaintiffs' Proposed Injunction Order (Nicholas, Adele D.) (Entered: 10/15/2019)
145 LETTER from Calvin Johnson dated 10/8/19. (Attachments). (Envelope Postmark date 10/9/19). (gcy, ) (Entered: 10/17/2019)
146 MOTION by Defendants John Baldwin, Lisa Madigan for extension of time to file response/reply as to motion for order 144 (Unopposed) (Newman, Sarah) (Entered: 11/08/2019)
147 NOTICE of Motion by Sarah Hughes Newman for presentment of motion for extension of time to file response/reply 146 before Honorable Virginia M. Kendall on 11/21/2019 at 09:00 AM. (Newman, Sarah) (Entered: 11/08/2019)
148 MINUTE entry before the Honorable Virginia M. Kendall. Defendants' Unopposed Motion for extension of time to file response 146 regarding Motion for Proposed Injunction Order 144 is granted. Response due by 11/19/2019. Status hearing reset for 12/3/2019 at 9:00 AM. Motion and Status hearing set for 11/21/2019 are stricken. Mailed notice (lk, ) (Entered: 11/18/2019)
149 RESPONSE by Defendants John Baldwin, Lisa Madigan to motion for order 144 (Newman, Sarah) (Entered: 11/19/2019)
150 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 12/3/2019. Plaintiff's Motion for Injunction Order 144 is taken under advisement. Status hearing set for 12/17/2019 at 9:00 AM. Mailed notice (lk, ) (Entered: 12/04/2019)
151 MINUTE entry before the Honorable Virginia M. Kendall. In March 2019, class member Christopher Parker filed a third "motion to intervene" 125 re−raising the legal arguments he has raised in his previous motions to intervene and attaching his state−court petition for a writ of habeas corpus. As this Court has already stated (See Dkt. 104 , 114 ), Mr. Parker is already a class member and the existing parties adequately represent his interests. Mr. Parker's contentions remain consistent with the Plaintiffs' position in this case. His third motion to intervene 125 is again denied for this reason. Mr. Parker's brief and cursory arguments do not raise any new grounds that would cause the Court to change its position. The Court directs the Clerk's office to send Mr. Parker, with notice of this order, a copy of the Court's Memorandum Opinion and Order 132 as it may aid him in understanding that his concerns are already being addressed in this case. Mailed notice (lk, ) (Entered: 12/09/2019)
MAILED Copy of Order dated 12/9/19 w/Copy of Memorandum Opinion and Order 132 to Christopher Parker. (gcy, ) (Entered: 12/11/2019)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 14 of 15

12/17/2019 12/26/2019 01/02/2020 01/07/2020 01/15/2020 01/29/2020 02/10/2020 02/18/2020 02/18/2020 02/27/2020 03/13/2020
03/16/2020 03/26/2020 03/26/2020

152 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 12/17/2019. Further oral argument heard regarding Plaintiff's Motion for Injunction 144 . Motion for Injunction 144 is taken under advisement. Status hearing set for 1/2/2020 at 9:00 AM. Mailed notice (lk, ) (Entered: 12/18/2019)
153 MEMORANDUM motion for order 144 by Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy (Supplemental Memorandum in Support of Plaintiffs' Motion for a Permanent Injunction) (Nicholas, Adele D.) (Entered: 12/26/2019)
154 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing held on 1/2/2020. Parties are to submit an agreed proposed Order with dates as outlined in open Court. Status hearing set for 4/6/2020 at 9:00 AM. Mailed notice (lk, ) (Entered: 01/06/2020)
155 LETTER from Burt D Wenzel. (Envelope Postmark 1/2/20). (gcy, ) (Entered: 01/09/2020)
156 PERMANENT Injunction Order signed by the Honorable Virginia M. Kendall on 1/15/2020. Mailed notice(lk, ) (Entered: 01/15/2020)
157 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy for bill of costs (Attachments: # 1 Appendix itemization and declaration of counsel, # 2 Exhibit fees of the clerk, # 3 Exhibit deposition costs, # 4 Exhibit printing costs)(Nicholas, Adele D.) (Entered: 01/29/2020)
158 REQUEST for Information Adam Jose Escamilla. (Envelope Postmark date 2/3/2020). (gcy, ) (Entered: 02/12/2020)
159 MINUTE entry before the Honorable Virginia M. Kendall. On 1/15/20, this Court entered a Permanent Injunction Order, upon motion of the Plaintiffs (Dkt. 156 ). On 1/29/20, Plaintiffs filed a bill of costs 157 . There having been no objections filed, the bill of costs is entered. Mailed notice (lk, ) (Entered: 02/18/2020)
160 COSTS Taxed in favor of Plaintiffs in amount of $ 3,015.41 and against Defendants. (lk, ) (Entered: 02/18/2020)
161 Compliance Plan by John Baldwin, Lisa Madigan pursuant to the Court's Permanent Injunction Order (Dkt. 156) (Newman, Sarah) (Entered: 02/27/2020)
162 GENERAL ORDER signed by the Honorable Virginia M. Kendall: In view of the current situation regarding COVID19, the Court encourages counsel with motion or status hearings set over the next few weeks to (a) file a joint status report if they believe that the motion and/or status can be handled without an appearance simply by providing the Court with an update on the progress of the case or an indication that the relief requested in the motion either is unopposed or can be addressed with an agreed briefing schedule or (b) make arrangements to appear by telephone for all motions and status hearings that cannot be handled without an appearance. If you would like to appear by telephone for any hearing or status conference, please contact the Courtroom Deputy, Lynn Kandziora, preferably by email (Lynn_Kandziora@ilnd.uscourts.gov) or by telephone (312) 4085153, if necessary, to advise her of the case number and the name of the person who is expecting to participate. We will open the phone lines shortly before the start time every day that court is in session. Please use the Court's toll free call in number 877 848 7030, conference access code is 2413900. Given the increased volume of users that is anticipated, we ask that you keep your phone on mute until your case is called. Signed by the Honorable Virginia M. Kendall on 3/13/2020: Mailed notice. (rp, ) (Entered: 03/13/2020)
163 ORDER Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (pj, ) (Entered: 03/17/2020)
164 MINUTE entry before the Honorable Virginia M. Kendall. Status hearing set for 4/6/2020 is stricken. Mailed notice (lk, ) (Entered: 03/26/2020)
167 LETTER from Juan Nova dated 3/24/20. (Envelope postmark date 3/26/20). (gcy, ) (Entered: 04/12/2020)

Case: 1:16-cv-11471 As of: 07/22/2020 05:32 PM CDT 15 of 15

04/06/2020 04/07/2020
04/13/2020
04/24/2020
05/18/2020 05/26/2020 06/15/2020 07/10/2020

165 MOTION by Plaintiffs Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy to reassign case Barnes v. Jeffreys, 20−cv−2137 (Attachments: # 1 Exhibit, # 2 Exhibit)(Nicholas, Adele D.) (Entered: 04/06/2020)
166 MINUTE entry before the Honorable Virginia M. Kendall. Plaintiffs' Motion to reassign case 20 C 2137 to Judge Kendall based on relatedness 165 is granted. Case 20 C 2137 shall be reassigned to Judge Kendall based on relatedness, as both that case and the instant case, 16 C 11471, rely on the same or similar facts and law. Telephonic Status hearing set 4/8/2020 at 10:45 AM (courtroom 2503). Call in information as as follows: Toll−Free Call−in Number: (877) 848−7030; Conference Access Code: 2413900. Mailed notice (lk, ) (Entered: 04/07/2020)
168 MINUTE entry before the Honorable Virginia M. Kendall. The Court has received letters from class members in recent months, requesting information about the case. The Court expects that it may continue to receive such letters during the COVID−19 crisis. The class is represented by counsel, and class counsel is expected to adequately represent the class, including by keeping them apprised of case developments. The Court directs Plaintiffs' counsel to review the letters filed on the docket and respond, if appropriate. The Court will not enter additional orders on the matter but expects counsel to review the docket for such letters and respond appropriately going forward. Mailed notice (lk, ) (Entered: 04/13/2020)
169 ORDER Third Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket1, ) (Entered: 04/27/2020)
170 STATUS Report Joint Status Report Pursuant to N.D.Ill. Gen. Order 20−0012 by Jasen Gustafsen, J.D. Lindenmeier, Stanley Meyer, Paul Murphy (Nicholas, Adele D.) (Entered: 05/18/2020)
171 ORDER ORDER Fourth Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For non−emergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket1, ) (Entered: 05/26/2020)
172 Defendants' Quarterly Report by John Baldwin, Lisa Madigan (Newman, Sarah) (Entered: 06/15/2020)
173 ORDER Fifth Amended General Order 20−0012 IN RE: CORONAVIRUS COVID−19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in−person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in−court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk3, Docket) (Entered: 07/10/2020)

 
 Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 1 of 34 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PAUL MURPHY, STANLEY MEYER,

)

J.D. LINDEMEIER, KEENON SMITH,

)

JASEN GUSTAFSEN, ALFRED AUKEMA, )

and KEVIN TUCEK, individually and

)

on behalf of all others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

LISA MADIGAN, in her official capacity as )

attorney general of the State of Illinois, and )

JOHN BALDWIN, in his official capacity as )

the Director of the Illinois Department of )

Corrections,

)

)

Defendants.

)

No. 16 C 11471 Judge Magistrate Judge
Jury Demand

CLASS ACTION COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, DECLARATORY JUDGMENT AND OTHER INJUNCTIVE RELIEF

Plaintiffs Paul Murphy, Stanley Meyer, J.D. Lindemeier, Keenon Smith,

Jasen Gustafsen, Alfred Aukema, and Kevin Tucek, individually and on behalf of all

others similarly situated, through their undersigned counsel, complain against the

Defendants, Lisa Madigan, attorney general of Illinois; and John Baldwin, director

of the Illinois Department of Corrections, as follows:

Nature of the Case

1. This case, which arises under 42 U.S.C. § 1983, challenges the

constitutionality of a legal scheme whereby individuals who have been convicted of

certain sex-related crimes end up serving life sentences behind prison bars as the

result of the interactions of various state laws and state agency regulations

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 2 of 34 PageID #:2
promulgated by three distinct entities—the Illinois legislature, the Prison Review Board (“PRB”), and the Illinois Department of Corrections (“IDOC”). In particular, individuals convicted of sex-related crimes who are sentenced to three years to life of mandatory supervised release (“MSR”) find themselves stuck in prison for life as a result of the imposition of unmeetable restrictions on where they can live that must be satisfied in order for such individuals to be released on MSR. The challenged scheme results in what amounts to a Kafkaesque nightmare whereby these individuals are denied any semblance of proportionality in their prison sentences and due process of law.
2. This is an action for declaratory and injunctive relief. Plaintiffs, individually and on behalf of the classes they seek to represent, allege violations of their rights under the Eighth and Fourteenth Amendment of the United States Constitution.
3. As of the filing of this complaint, there are approximately 4,000 people imprisoned in the Illinois Department of Corrections who have been convicted of sex-related offenses for which state law imposes an indeterminate term of “three years to life” of Mandatory Supervised Release (“MSR”) (formerly known as parole).
4. As set forth below, Illinois laws severely restrict where individuals deemed sex offenders may live while on MSR. As a result, the vast majority of such prisoners are unable to find approved “host sites” at which to serve their MSR terms. Because of the unavailability of compliant housing, such prisoners are detained in the Illinois Department of Corrections long after they have served the
2

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 3 of 34 PageID #:3
term of imprisonment to which they have been sentenced. For individuals with indeterminate MSR sentences, their prison terms are in effect converted to sentences of lifetime imprisonment without any possibility of release.
5. The named Plaintiffs are individuals currently being held in the custody of the Illinois Department of Corrections who have been sentenced to serve “three years to life” MSR terms and are unable to find “host sites.” Plaintiffs, individually and on behalf of two classes of similarly situated individuals (identified below), challenge the constitutionality of the statutory schemes that cause this severe deprivation of their constitutional right to liberty.
Jurisdiction and Venue 6. Jurisdiction for Plaintiffs’ federal claims is based on 28 U.S.C. §§ 1331 and 1343(a). 7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), in that the claims arose in this district as alleged below.
The Parties 8. Defendant Attorney General Lisa Madigan is sued in her official capacity as the Attorney General of the State of Illinois. The Attorney General of the State of Illinois is responsible for executing and administering the laws of the State of Illinois and is charged with advising state’s attorneys throughout the state. 9. Under Illinois law, Defendant Madigan has the authority to participate in and assist with criminal prosecutions, including charges under the statutes challenged herein. Defendant Madigan also has the authority to consult with and
3

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 4 of 34 PageID #:4
advise Illinois State’s Attorneys concerning criminal prosecutions. (See 15 ILCS 205/4).
10. Defendant Madigan has been and continues to be directly involved in the enforcement of the statutory schemes at issue in this case by defending the statutes in state court criminal appeals.
11. Defendant John Baldwin is sued in his official capacity as director of the Illinois Department of Corrections. In his capacity as the director of IDOC, he has final authority to set the Department of Corrections’ policies and practices with regard to approval of prisoners’ “host sites” for MSR.
12. Plaintiff Paul F. Murphy is a prisoner at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He has completed his three-year prison term. The PRB approved Murphy for release on MSR on March 3, 2014. To date, the IDOC has not released Murphy from prison because he cannot find an approved “host site” at which to serve his MSR. Murphy has no money to pay for housing and no family members outside of prison who could help him pay for housing. The state of Illinois provides no transitional housing for sex offenders who cannot afford their own housing while on MSR. IDOC will not release a homeless individual on MSR. Because his MSR term is indefinite, Murphy remains in Taylorville Correctional Center with no foreseeable possibility of release.
13. Plaintiff Stanley Meyer is a prisoner at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He has completed his four-year prison term. The PRB approved Meyer for release on MSR on May 12, 2011. To
4

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 5 of 34 PageID #:5
date, the IDOC has not released Meyer from prison because he cannot find an approved “host site” at which to serve his MSR. Meyer has no money to pay for housing and no family members outside of prison who could help him pay for housing. Because his MSR term is indefinite, Meyer remains in Taylorville Correctional Center with no foreseeable possibility of release.
14. Plaintiff J.D. Lindenmeier is a prisoner at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He has completed his six-year prison term. The PRB approved Lindenmeier for release on MSR on July 18, 2011. To date, the IDOC has not released Lindenmeier from prison because he cannot find an approved “host site” at which to serve his MSR. As set forth below, Lindenmeier’s family members have made substantial efforts to find a “host site” that will meet IDOC’s approval. Lindenmeier has proposed six different host sites with various family members who are willing to take him in and assist in his successful compliance with MSR terms and reintegration into society. IDOC has rejected all of these proposed sites. Lindenmeier has no other options. Because his MSR term is indefinite, Lindenmeier remains in Taylorville Correctional Center with no foreseeable possibility of release.
15. Plaintiff Keenon Smith is a prisoner at Pickneyville Correctional Center in Pickneyville, Illinois, and a registered sex offender. He has completed his five-year prison term. The PRB approved Smith for release on MSR on November 4, 2016. To date, the IDOC has not released Smith from prison because he cannot find an approved “host site” at which to serve his MSR. As set forth below, Smith’s
5

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 6 of 34 PageID #:6
mother has made substantial efforts to find a “host site” that will meet IDOC’s approval, but to no avail. Smith’s mother is an elementary school teacher. She is willing to take Smith into her home or pay for his housing elsewhere. Smith’s mother has proposed at least 12 different host sites in Chicago and the suburbs. IDOC has rejected all of these proposed sites. Because his MSR term is indefinite, Smith remains in Pickneyville Correctional Center with no foreseeable possibility of release.
16. Plaintiff Jasen Gustafsen is a prisoner at Lincoln Correctional Center in Lincoln, Illinois, and a registered sex offender. He is has completed his four-year prison term. The PRB approved Gustafsen for release on MSR on October 19, 2014. To date, the IDOC has not released Gustafsen from prison because he cannot find an approved “host site” at which to serve his MSR. As set forth below, Gustafsen has no financial resources of his own and no family members who are able to pay for his housing outside of prison. His only options for housing outside of prison are staying with his mother or his aunt. Gustafson has proposed his mother’s and aunt’s residences as “host sites.” IDOC has rejected both of these proposed sites. Because his MSR term is indefinite, Gustafson remains in Lincoln Correctional Center with no foreseeable possibility of release.
17. Plaintiff Alfred Aukema is a prisoner at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He is scheduled to complete his five-year prison sentence on September 7, 2017. Plaintiff Aukema has no financial resources to afford to pay for a “host site” and no friends or family
6

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 7 of 34 PageID #:7
outside of prison who can take him in or pay for his housing. Because his MSR term is indefinite, Aukema faces a likelihood of lifetime imprisonment due to the lack of available compliant housing and his inability to afford housing, if it were available, outside of prison.
18. Plaintiff Kevin Tucek is a prisoner at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He is scheduled to complete his eight-year prison sentence on July 20, 2020. Plaintiff Tucek has no financial resources to afford to pay for a host site and no friends or family outside of prison who can take him in or pay for his housing. Because his MSR term is indefinite, Tucke faces a likelihood of lifetime imprisonment due to the unavailability of compliant housing and his inability to afford housing, if it were available, outside of prison.
The Statutory Schemes At Issue 19. As described in the paragraphs below, individuals convicted of certain sex-related offenses are subject to numerous overlapping statutory and regulatory schemes that severely restrict where they can live and make it nearly impossible for them to satisfy the conditions required for release from prison on MSR. Statutes Requiring the Imposition of an Indefinite MSR Term 20. Illinois’ Unified Code of Corrections provides that for all felony convictions, the sentencing court must impose a term of “parole or mandatory supervised release ... as part of the sentencing order.” 730 ILCS 5/5-8-1(d).
7

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 8 of 34 PageID #:8
21. Individuals convicted of “predatory criminal sexual assault of a child, aggravated criminal sexual assault, or criminal sexual assault” after July 1, 2005, or of “aggravated child pornography ... manufacture of child pornography, or dissemination of child pornography” after January 1, 2009, are subject to the mandatory imposition of an indeterminate term of MSR “rang[ing] from a minimum of three years to a maximum of the natural life.” 730 ILCS 5/5-8-1(d)(4).
22. The Illinois Supreme Court has interpreted 730 ILCS 5/5-8-1(d)(4) to require sentencing courts to impose an indeterminate MSR period of “three years to life” rather than a determinate period within the range of three years to natural life. People v. Reinhart, 2012 IL 111719 (2012).
23. Under 730 ILCS 5/3-14-2.5(d), a person with an indeterminate MSR sentence of “three years to life” can only apply for termination of his MSR after successfully completing three years of MSR outside of prison. This is so because an application for release from indeterminate MSR must be “supported by a recommendation by the releasee’s supervising agent,” and a “supervising agent” is not appointed until the individual is actually released from prison. As a result, prisoners receive no credit for MSR time they serve while incarcerated and thus can never max out their MSR sentence—a condition widely known as “dead time.” Conditions for Release from IDOC Custody on MSR
24. The Prison Review Board (“PRB”) is responsible for establishing release dates from prison for individuals deemed eligible for MSR and setting the conditions for release on MSR. 730 ILCS 5/3-3-1.
8

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 9 of 34 PageID #:9
25. The Illinois Department of Corrections (“IDOC”) retains custody of all prisoners approved for release on MSR by the PRB and is charged with assuring that prisoners are in compliance with the conditions set by the PRB before they are released from an IDOC facility on MSR. 730 ILCS 5/3-14-2.
26. Under Illinois law, once the PRB approves a prisoner for release on MSR, such individuals have a due process interest in being released from imprisonment in an IDOC facility. Murdock v. Walker, No. 08 C 1142, 2014 WL 916992, at *6 (N.D. Ill. Mar. 10, 2014) (Durkin, J.).
27. The fact that a prisoner is eligible for release on MSR because he has served his prison sentence and has been approved for release by the PRB does not necessarily mean the individual will be released from prison.
28. Rather, any prisoner granted release on MSR must meet conditions imposed by Illinois statutes and by the PRB before being released from prison. If such conditions are not met, the parolee will be detained in prison.
29. One condition of release from prison on MSR is having an approved “host site” at which to reside while serving the MSR term.
30. IDOC has the sole authority to approve or deny a prisoners’ proposed “host site” based on its assessment of whether it meets the conditions imposed by Illinois statutes and by the PRB.
31. If a prisoner lacks an approved host site, he will not be released from prison even if the PRB has found him eligible for release on MSR.
9

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 10 of 34 PageID #:10
32. As shown below, the overlapping layers of restrictions imposed by statute and IDOC policy on where individuals deemed sex offenders can live, along with the lack of housing assistance for indigent prisoners, result in the vast majority of prisoners with a three-to-life MSR sentence being unable to find compliant housing and serving what amounts to life sentences in prison. Residency Restrictions that Apply to All Individuals Classified as Child Sex Offenders
33. First, for IDOC to approve a host site for an individual sentenced to “three-to-life” MSR, the host site must comply with all of the restrictions imposed under Illinois law on where individuals deemed “child sex offenders” may reside.
34. 720 ILCS 5/11-9.3 (b-5) makes it unlawful “to knowingly reside within 500 feet of a school building or the real property comprising any school that persons under the age of 18 attend ... [unless] the property is owned by the offender and was purchased before July 7, 2000.”
35. There are 4,979 primary and high schools in Illinois. See, Illinois State Board of Education 2015-16 Enrollment Data: http://www.isbe.state.il.us/research/htmls/fall_housing.htm (last visited December 14, 2016).
36. 720 ILCS 5/11-9.3 (b-10) makes it unlawful “to knowingly reside within 500 feet of a playground, child care institution, day care center, part day child care facility, day care home, group day care home, or a facility providing programs or services exclusively directed toward persons under 18 years of age” unless the
10

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 11 of 34 PageID #:11
property is owned by the offender and was purchased before the effective date of the prohibition.
37. There are 9,929 licensed daycare providers in Illinois. See, Illinois Department of Children and Family Services Provider Index, available at: https://sunshine.dcfs.illinois.gov/Content/Licensing/Daycare/Search.aspx (last visited December 14, 2016).
38. In the City of Chicago alone, there are 332 Chicago Park District owned playgrounds. See, https://data.cityofchicago.org/Parks-Recreation/ParksContaining-Playgrounds/n8h8-zjr3 (last visited December 14, 2016).
39. Pursuant to 720 ILCS 5/11-9.3(e), the 500-foot distance is measured from the outer property line of the prohibited location to the outer property line of the potential residence. Statutory Restrictions on Where Sex Offenders Can Reside While on MSR
40. In addition to complying with the housing restrictions imposed by statute on all individuals classified as child sex offenders, prisoners who seek release from the IDOC on MSR must also comply with additional restrictions imposed under Illinois law on where individuals on MSR may reside.
41. One of the restrictions is 730 ILCS 5/3-3-7(a)(7.6), which makes it unlawful for any individual convicted of a sex offense to reside while on MSR “at the same address or in the same condominium unit or apartment unit or in the same condominium complex or apartment complex with another person he or she knows or reasonably should know is a convicted sex offender or has been placed on
11

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 12 of 34 PageID #:12

supervision for a sex offense,” unless such housing is an IDOC approved half-way house or medical facility.
42. This statute is routinely applied to prohibit individuals seeking release on MSR from residing in the same trailer park or multi-building apartment complex as another individual with a past conviction for a sex-related offense.
43. There are no halfway houses in the State of Illinois that accept parolees classified as sex offenders.
44. Another statutory restriction is 730 ILCS 5/3-3-7(b-1)(12), which prohibits anyone deemed a sex offender from “resid[ing] near ... parks, schools, day care centers, swimming pools, beaches, theaters, or any other places where minor children congregate” without prior approval of the Illinois Department of Corrections while on MSR.
45. In the City of Chicago alone, there are 581 parks. See, https://data.cityofchicago.org/Parks-Recreation/Parks-Locations/wwy2-k7b3 (last visited December 14, 2016).
46. The statute does not define what is meant by “near.” 47. The statute does not define what is meant by “any other places where minor children congregate.”1

1

The Fourth Circuit recently found unconstitutional a North Carolina statute

containing a very similar restriction in Does v. Cooper, 16-6026 (4th Cir., Nov. 30, 2016).

The statute at issue there prohibited people classified as sex offenders from “knowingly

being ... at any place where minors gather for regularly scheduled educational, recreational,

or social programs.” Id. at 5, citing N.C. Gen. Stat. Art. 7, §14-208.18(a)(3). The Court found

the statute unconstitutionally vague because “neither an ordinary citizen nor a law

enforcement officer could reasonably determine what activity was criminalized.” Id. at 21–

22.

12

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 13 of 34 PageID #:13
48. The determination of whether a proposed “host site” complies with these prohibitions is completely within the IDOC’s discretion.
49. Illinois Department of Corrections officials routinely cite the prohibition on living “near” the locations enumerated in 730 ILCS 5/3-3-7(b-1)(12) to deny proposed housing locations.
50. Illinois law also gives the Illinois Department of Corrections discretion to impose “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 ILCS 5/3-3-7 (a)(7.11)(iv).
51. Pursuant to this authority, the IDOC routinely prohibits individuals deemed sex offenders from serving their MSR at any “host site” where any resident has a computer or smart phone with Internet capability.
52. Illinois law also gives the Illinois Department of Corrections broad discretion to approve or deny housing for individuals seeking release on MSR for any reason they see fit. See, 730 ILCS 5/3-3-7 (b-1)(1) (setting forth that anyone deemed a sex offender who seeks release on MSR may “reside only at a Department approved location.”)
53. This discretion is routinely exercised to deny approval for sex offenders’ proposed “host sites,” even when those sites comply with all written restrictions (such as restrictions on living near parks, schools, day cares, etc.) enumerated under Illinois law.
13

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 14 of 34 PageID #:14
The Unavailability of Host Sites for Indigent Prisoners 54. The State of Illinois provides no housing resources for sex offenders who are approved for release from IDOC on MSR. 55. There is no transitional housing (or “halfway houses”) in Illinois that accept individuals with sex-related convictions. 56. There are no homeless shelters in Illinois that accept sex offenders. 57. Unless a parolee has money to pay for his own housing or people outside of prison who are willing to pay for his housing or take him in, he cannot be released from an IDOC facility to a “host site” on MSR. 58. The IDOC will not approve a homeless individual’s release on MSR due to the lack of an approved “host site.” The Consequences of the Unavailability of Housing for Sex Offenders who are Sentenced to Indeterminate MSR Terms of “Three Years to Life” 59. The severe restrictions on where people classified as sex offenders can live while on MSR under Illinois law, in combination with the lack of halfway houses that accept people classified as sex offenders, make it impossible for the vast majority of individuals convicted of sex-related offenses find an approved “host site.” Accordingly, they must serve their MSR time in prison. 60. A prisoner sentenced to a fixed MSR period (for example, an MSR term of three years), who cannot find an approved host site and is imprisoned after being approved for MSR will receive credit towards having served his MSR period while in prison. Eventually, such an individual will “max out” his MSR time—i.e., serve the
14

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 15 of 34 PageID #:15
full length of his MSR in an IDOC facility—and then be released from IDOC custody with no supervision.
61. The consequences, however, are entirely different for prisoners with indeterminate MSR sentences of “three years to life.” Prisoners with indeterminate MSR sentences who cannot find approved host sites can never max out their MSR time because, as set forth in ¶23 above, they cannot meet the statutory conditions for seeking termination of their MSR while imprisoned in an IDOC facility.
62. Accordingly, the sentences of these prisoners are effectively converted to life imprisonment, even though such a sentence was never imposed, nor contemplated, the sentencing court.
Facts Pertinent to the Named Plaintiffs Paul F. Murphy
63. Plaintiff Paul F. Murphy, 61, is a prisoner at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He was convicted in 2011 of aggravated child pornography, for which he was sentenced to 36 months probation.
64. In August 2013, Murphy’s probation was revoked because, while homeless and reporting his addresses on a weekly basis pursuant to state statute, he was arrested for sleeping in the doorway of a church.
65. Murphy was sentenced to three years in prison at 50 percent, plus two years of MSR. In February 2014, his MSR sentence was amended to three years to life.
15

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 16 of 34 PageID #:16
66. The PRB approved Murphy for release on MSR on March 3, 2014. 67. To date, the IDOC has not released Murphy from prison because he cannot find an approved “host site” at which to serve his MSR. 68. Murphy has no money to pay for housing and cannot earn any money because he is in prison. 69. Murphy has no living family members or friends outside of prison who could help him pay for housing. 70. Murphy’s only true option for housing outside of IDOC is a halfway house or homeless shelter. 71. Murphy applied for housing at a halfway house in East St. Louis, Illinois. At the time he applied, it was the only halfway house in the state that accepted sex offenders. When he applied, he was told that there was a five-year waiting list for a room at this halfway house. 72. The halfway house in East St. Louis subsequently closed. 73. Now, there are no halfway houses or homeless shelters in Illinois that will accept sex offenders. 74. The state of Illinois provides no financial resources for sex offenders who cannot afford their own housing while on MSR. 75. IDOC will not release a homeless individual on MSR. 76. Because his MSR term is indefinite, Murphy faces imprisonment in the Illinois Department of Corrections for the rest of his life. Murphy will never be able to meet the statutory requirements discussed above for an approved “host site,”
16

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 17 of 34 PageID #:17
which is required for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above. Stanley Meyer
77. Plaintiff Stanley Meyer, 41, is an inmate at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He was convicted in 2008 of criminal sex assault and sentenced to 48 months in jail at 85 percent and an MSR sentence of three years to life.
78. Plaintiff Meyer has completed his prison sentence. The PRB approved Meyer for release on MSR on May 12, 2011.
79. To date, the IDOC has not released Meyer from prison because he cannot find an approved “host site” at which to serve his MSR.
80. Meyer has no money to pay for housing and cannot earn money to pay for housing because he is in prison.
81. Meyer has no family members or friends outside of prison who can help him pay for housing.
82. Because his MSR term is indefinite, Meyer faces imprisonment in the Illinois Department of Corrections for the rest of his life. Meyer will never be able to meet the statutory requirements discussed above for an approved “host site,” which is required for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above.
17

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 18 of 34 PageID #:18
J.D. Lindenmeier 83. Plaintiff J.D. Lindenmeier, 34, is an inmate at Taylorville Correctional
Center in Taylorville, Illinois, and a registered sex offender. He was convicted in 2007 of predatory criminal sexual assault and sentenced to six years in jail at 85 percent, plus an MSR sentence of three years to life.
84. Lindenmeier has completed his prison sentence. The PRB approved Lindenmeier for release on MSR on July 18, 2011.
85. Lindenmeier has a supportive family and friends outside of prison who have offered to help him successfully serve his MSR. While his family members cannot afford to pay for Lindenmeier’s housing, they are willing to take him into their own homes.
86. With the help of these friends and family members, Lindenmeier has made numerous efforts to find compliant housing to satisfy the requirements for his release from prison on MSR, but IDOC officials have rejected all of his proposed host sites.
87. Lindenmeier has proposed the following locations, each of which was rejected:
• His father’s home; denied because house is located within 500 feet of prohibited location (e.g., school or daycare);
• His mother’s home; denied because residence contains a computer and smart phone;
• His girlfriend’s home; denied because house is located within 500 feet of prohibited location (e.g., daycare);
• His sister’s home; denied because his sister has children and a
18

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 19 of 34 PageID #:19
smartphone; • His father’s girlfriend’s home; denied because house is located within
500 feet of prohibited location (e.g., daycare); and • His mother’s boyfriend’s home; denied because house contains a
computer and is located within 500 feet of prohibited location (e.g., school). 88. Lindenmeier has no other options for obtaining housing outside of prison. 89. Because his MSR term is indefinite, Lindenmeier faces imprisonment in the Illinois Department of Corrections for the rest of his life. Lindenmeier cannot meet the statutory requirements discussed above for an approved “host site,” which is necessary for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above. Keenon Smith 90. Plaintiff Keenon Smith, 19, is an inmate at Pinckneyville Correctional Center in Pinckneyville, Illinois, and is a registered sex offender. He was convicted in 2012 of criminal sexual assault, for which he was sentenced to five years in prison, plus an MSR term of three years to life. 91. Smith has completed his prison sentence. The PRB approved Smith for release on MSR on November 4, 2016. 92. To date, the IDOC has not released Smith from prison because he cannot find an approved “host site” at which to serve his MSR.
19

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 20 of 34 PageID #:20
93. While Smith does not personally have any resources to pay for housing, Smith’s mother, who is an elementary school teacher, is willing to take Smith into her home or pay for his housing elsewhere at an approved “host site.”
94. Smith’s mother has proposed at least 12 different host sites in Chicago and the suburbs, but IDOC has rejected all of the proposed sites, including the following:
• Smith’s mother’s home in Calumet City, Illinois; denied because house is “a three minute drive” from the victim’s residence;
• Four different apartments in Calumet City; denied because too close to various unidentified prohibited locations (including daycares and schools);
• An apartment in South Holland, Illinois; denied because too close to a daycare;
• Cornerstone Halfway House in Chicago, Illinois; denied because it will not accept an individual with a sex-related conviction;
• Four different apartments in Chicago, Illinois; denied because too close to various unidentified prohibited locations (including daycares and parks);
95. IDOC officials rejected Smith’s mother’s home as a “host site” on the basis that it was “a three minute drive” to the victim of Smith’s offense.
96. There is no statutory prohibition on an offender’s living a certain driving distance from a victim.
97. In fact, the victim’s residence is over 5,000 feet from Smith’s mother’s residence.
98. Illinois law prohibits certain offenders from living within “500 feet” of their victims. 720 ILCS 5/11-9.3 (b).
20

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 21 of 34 PageID #:21
99. IDOC officials would not give Smith’s mother an explanation as to why her residence was deemed too close to the victim or what an acceptable distance from the victim would be.
100. For several other of the addresses Smith’s mother proposed, IDOC officials told her they were too close to a park. Illinois law, however, does not set forth a specific distance an individual on MSR must live from a park (as opposed to a playground). IDOC officials have not told Smith’s mother what an acceptable distance from a park is.
101. Due to the extensive restrictions imposed on where sex offenders can live under state law and the arbitrary way in which IDOC officials apply the restrictions concerning where parolees can live, Smith cannot locate an approved “host site,” which is required for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above.
102. Because his MSR term is indefinite, Smith faces imprisonment in the Illinois Department of Corrections for the rest of his life. Jasen Gustafsen
103. Plaintiff Jasen Gustafsen, 32, is an inmate at Lincoln Correctional Center in Lincoln, Illinois, and a registered sex offender. He was convicted in 2013 of aggravated child pornography, for which he was sentenced to four years in prison at 50 percent, plus a term of mandatory supervised release of three years to life.
104. Gustafson earned three months good time, thereby converting his two-
21

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 22 of 34 PageID #:22
year sentence into a sentence of one year and nine months. He has now completed his prison sentence. The PRB approved Gustafson for release on MSR on October 19, 2014.
105. Gustafson has no resources to pay for his own housing outside of prison. He does, however, have two supportive family members (his mother and his aunt) who are willing to take him in. While neither his mother nor his aunt can afford to pay for Gustafson’s housing elsewhere, they are both willing to house him in their own homes while he serves his MSR.
106. IDOC officials have rejected both proposed host sites. 107. IDOC officials rejected Gustafson’s mother’s residence because it was too close to a prohibited location (e.g., a daycare). 108. IDOC officials rejected his aunt’s residence as a host site because she has grandchildren who regularly visit her. 109. Gustafson has no other options for seeking housing outside of prison. 110. Because his MSR is indeterminate, Gustafson faces imprisonment in the Illinois Department of Corrections for the rest of his life. Gustafson cannot meet the statutory requirements discussed above for an approved “host site,” which is required for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above. Alfred Aukema 111. Plaintiff Alfred Aukema, 43, is an inmate in Taylorville Correctional
22

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 23 of 34 PageID #:23
Center in Taylorville, Illinois, and is a registered sex offender. He was convicted in 2013 of criminal sexual assault, for which he received a five-year prison sentence at 85 percent, plus a term of mandatory supervised release of three years to life.
112. He is scheduled to complete his five-year sentence on September 7, 2017.
113. Plaintiff Aukema has no financial resources to afford to pay for a host site and no family or friends outside of prison who can help him pay for housing.
114. Because his MSR term is indefinite, Aukema faces imprisonment in the Illinois Department of Corrections for the rest of his life. Aukema will never be able to meet the statutory requirements discussed above for an approved “host site,” which is required for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above. Kevin Tucek
115. Plaintiff Kevin Tucek, 33, is an inmate at Taylorville Correctional Center in Taylorville, Illinois, and a registered sex offender. He was convicted in 2014 of criminal sexual assault, for which he received an eight-year prison sentence, plus a term of mandatory supervised release of three years to life.
116. He is scheduled to complete his prison sentence on July 20, 2020. 117. Plaintiff Tucek has no financial resources to afford to pay for a host site and no family or friends outside of prison who can help him pay for housing. 118. Because his MSR term is indefinite, Tucek faces imprisonment in the
23

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 24 of 34 PageID #:24
Illinois Department of Corrections for the rest of his life. Tucek will never be able to meet the statutory requirements discussed above for an approved “host site,” which is required for release on MSR. Moreover, he can never apply for termination of his MSR period while in prison pursuant to the terms of 730 ILCS 5/3-14-2.5(d), discussed in ¶23 above.
Class Allegations 119. Pursuant to Fed. R. Civ. P. 23(b)(2), the named Plaintiffs seek certification of this complaint as a class action. The named Plaintiffs seek to represent two classes consisting of the following:
• Class One: All individuals who have received an MSR sentence of three years to life currently detained in the Illinois Department of Corrections who have been approved for release on MSR by the PRB but have been denied release from IDOC custody because of their inability to find an approved host site; and
• Class Two: All individuals who have received an MSR sentence of three years to life currently or in the future detained in the Illinois Department of Corrections who will in the future remain detained indefinitely in prison due to the unavailability of host sites.
120. The Plaintiff Classes seek a declaration that the statutory schemes described above are unconstitutional because they result in routine violations of class members’ constitutional right to liberty in violation of the Eighth and Fourteenth Amendments.
121. The proposed classes are numerous. Based on data available from the Illinois Sex Offender Registry, there are currently approximately 4,000 people imprisoned in the Illinois Department of Corrections who have been convicted of sex
24

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 25 of 34 PageID #:25
offenses for which state law imposes an indeterminate term of “three years to life” of MSR.
122. Joinder of all class members is impracticable. Not only are the classes very numerous, they are also constantly changing. Class One is consistently growing because individuals are completing their prison sentences and being approved by the PRB for release on MSR. Likewise, Class Two is consistently expanding because additional people are receiving “three to life” MSR terms on a routine basis.
123. There are questions of law and fact common to all class members, including but not limited to the following:
• Does a statutory scheme that results in the extrajudicial imposition of life imprisonment violate the Eighth and Fourteenth Amendments;
• Does a statutory scheme that deprives individuals of their liberty solely because of their inability to afford housing violate the Equal Protection Clause;
• Are Illinois statutes regulating where individuals deemed sex offenders may reside while on MSR void for vagueness because they fail to define what is meant by many of their operative terms and thus fail to give sufficient guidance to IDOC officials and to prisoners seeking compliant housing
124. All individuals falling within the class definitions have been subject to the same statutory scheme. Given the commonality of the questions pertinent to all class members, a single declaratory judgment would provide relief to each member of the class.
25

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 26 of 34 PageID #:26
125. Defendants have acted and continue to act in a manner adverse to the rights of the proposed classes, making final declaratory relief appropriate with respect to the classes as a whole.
126. Plaintiffs and the classes they seek to represent have been directly injured by the statutory schemes and practices challenged herein; and members of the class are currently at risk of future harm from the continuation of these policies and practices.
127. Plaintiffs will fairly and adequately represent the interests of the class; and the Plaintiffs’ claims are typical of the claims of all members of the proposed class.
128. Plaintiffs’ counsel are experienced in civil rights litigation, including Monell claims, (b)(2) class actions, and constitutional matters on behalf of incarcerated people. Plaintiffs’ counsel will fairly and adequately represent the interests of the class.
COUNT I – FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS (Against Both Defendants)
129. Plaintiffs reallege and reincorporate, as though fully set forth herein, each and every allegation contained above.
130. Under the scheme described above, a prisoner approved for MSR will only be released from prison to an approved “host site” (e.g., housing that complies with all of the restrictions imposed by statute, the IDOC and the PRB).
26

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 27 of 34 PageID #:27
131. The multiple layers of prohibitions imposed on where individuals can live creates an unmeetable condition (e.g., the restrictions are so onerous that for the vast majority of people approved for MSR they are effectively impossible to meet), forcing those subject to the requirements to spend the duration of their MSR term incarcerated.
132. For those prisoners with an MSR sentence of “three years to life,” those unmeetable conditions result in life imprisonment because they can never meet the conditions for release from prison on MSR, nor can they meet the conditions for termination of their MSR.
133. The three-years-to-life sentence, combined with the onerous housing restrictions results in a prison sentence that exceeds the sentence imposed by the sentencing court in such an unexpected manner as to impose a shocking interference on class members’ liberty interests.
134. The punishment shocks the conscience because it is far out of proportion to the offense.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court: a) Issue an order certifying this action to proceed as a class pursuant to
Fed. R. Civ. P. 23(b)(2); b) Appoint the undersigned as class counsel pursuant to Fed. R. Civ. P.
23(g); c) Enter judgment declaring that the housing restrictions described
herein as applied to the class violate the Fourteenth Amendment of the U.S. Constitution;
27

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 28 of 34 PageID #:28
d) Enter a preliminary and then permanent injunction prohibiting Defendants from continuing enforcement of the unconstitutional policies and practices identified herein;
e) Award Plaintiffs their reasonable attorneys’ fees and cost pursuant to 42 U.S.C. § 1988, and other applicable law; and
f) Grant such other relief as this Court deems just and proper.
COUNT II – FOURTEENTH AMENDMENT EQUAL PROTECTION
(Against Both Defendants) 135. Plaintiffs reallege and reincorporate, as though fully set forth herein, each and every allegation contained above. 136. Release from prison on MSR involves a liberty interest that cannot be denied simply on the basis of an individual’s poverty. 137. The statutory and regulatory schemes at play here make it impossible for an indigent person sentenced to a “three to life” term of MSR to be released from prison. 138. An individual cannot be released from prison unless he has an approved “host site” that meets statutory, PRB and IDOC requirements. 139. An indigent prisoner without access to financial resources outside of prison cannot afford to pay for housing at a “host site.” 140. The state provides no financial resources, housing assistance or transitional housing (“halfway houses”) for individuals who have convictions for sex related crimes.
28

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 29 of 34 PageID #:29
141. Life imprisonment is not the only way to serve the government’s interests in knowing the whereabouts of indigent individuals approved for release on MSR. Rather, the state has alternative means of serving those interests—i.e., by subjecting those individuals to electronic monitoring with GPS. See 730 ILCS 5/3-37(a)(7.7) (requiring individuals convicted of crimes requiring the imposition of a “three to life” MSR term to “wear an approved electronic monitoring device ... that has Global Positioning System (GPS) capability for the duration of the person's parole, mandatory supervised release term, or extended mandatory supervised release term.”)
142. Accordingly, the statutory and regulatory schemes at issue in this case result in a severe and permanent deprivation of liberty for indigent persons without a sufficiently rational connection between the legislative purpose and the means used to achieve that purpose.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court: a) Issue an order certifying this action to proceed as a class pursuant to
Fed. R. Civ. P. 23(b)(2); b) Appoint the undersigned as class counsel pursuant to Fed. R. Civ. P.
23(g); c) Enter judgment declaring that the housing restrictions described
herein as applied to the class violate the Equal Protection Clause; d) Enter a preliminary and then permanent injunction prohibiting
Defendants from continuing enforcement of the unconstitutional policies and practices identified herein; e) Award Plaintiffs their reasonable attorneys’ fees and cost pursuant to 42 U.S.C. § 1988, and other applicable law; and
29

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 30 of 34 PageID #:30
f) Grant such other relief as this Court deems just and proper.
COUNT III – FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS – VOID FOR VAGUENESS
(Against Defendant Madigan) 143. Plaintiffs reallege and reincorporate, as though fully set forth herein, each and every allegation contained above. 144. The Due Process Clause of the Fourteenth Amendment prohibits states from enforcing laws that are unconstitutionally vague. As a matter of due process, statutory requirements must be written with sufficient clarity that persons of ordinary intelligence need not guess at their meaning. 145. Several of the statutory regulations on where individuals sentenced to “three to life” MSR terms may live are invalid under the vagueness doctrine. 146. Specifically, the prohibition on living “near” parks, schools, day care centers, swimming pools, beaches, theaters, “or any other places where minor children congregate,” as set forth in 730 ILCS 5/3-3-7(b-1)(12), is unconstitutionally vague because it does not define what is meant by “near” and does not define what is meant by “places where minor children congregate.” 147. Those provisions fail to provide a person of ordinary intelligence fair notice of what is required to comply with the statute, making it likely that IDOC officials, who have unreviewable discretion to interpret those terms, will enforce the statutes in different ways against different people. WHEREFORE, Plaintiffs respectfully request that this Honorable Court:
30

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 31 of 34 PageID #:31
a) Issue an order certifying this action to proceed as a class pursuant to Fed. R. Civ. P. 23(b)(2);
b) Appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g);
c) Enter judgment declaring that 730 ILCS 5/3-3-7(b-1)(12) is void for vagueness;
d) Enter a preliminary and then permanent injunction prohibiting Defendants from continuing enforcement of 730 ILCS 5/3-3-7(b-1)(12);
e) Award Plaintiffs their reasonable attorneys’ fees and cost pursuant to 42 U.S.C. § 1988, and other applicable law; and
f) Grant such other relief as this Court deems just and proper.
COUNT III – FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS (Against Defendant Baldwin)
148. Plaintiffs reallege and reincorporate, as though fully set forth herein, each and every allegation contained above.
149. Illinois law gives the Illinois Department of Corrections very broad discretion to deny approval of a “host site” for any reason it sees fit.
150. Specifically, 730 ILCS 5/3-3-7 (b-1) sets forth that anyone deemed a sex offender who seeks release on MSR may “reside only at a Department approved location” and must “comply with all other special conditions that the Department may impose that restrict the person from high-risk situations and limit access to potential victims.”
31

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 32 of 34 PageID #:32
151. The IDOC routinely misuses the discretion it has been granted under this statute to deny approval of proposed “host sites” for reasons not enumerated in any statute.
152. Moreover, under 730 ILCS 5/3-3-7 (a)(7.11)(iv) the IDOC can impose “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.”
153. The IDOC routinely misuses the authority granted under this statute to prohibit individuals deemed sex offenders from serving their MSR at any host site where any resident owns a computer or smart phone with Internet capability, although such a blanket prohibition is not set forth in any statute and is not reasonably related to any rehabilitative or other legitimate interest.
154. The IDOC’s decision to deny approval of a “host site” is not appealable and is not reviewed by any other entity.
155. A statutory scheme that grants the IDOC excessive and unreviewable discretion to deny approval of housing and thereby keep individuals who have been granted MSR in prison violates due process.
156. Likewise, the IDOC’s misuse of their discretion to deny approval of housing without adequate justification violates due process.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court: a) Issue an order certifying this action to proceed as a class pursuant to
Fed. R. Civ. P. 23(b)(2);
32

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 33 of 34 PageID #:33
b) Appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g);
c) Enter judgment declaring that the terms of 730 ILCS 5/3-3-7 (b-1) and 730 ILCS 5/3-3-7 (a)(7.11)(iv) violate the Fourteenth Amendment because they vest excessive discretion with IDOC officials;
d) Enter judgment declaring that the IDOC’s policy and practice of imposing a blanket prohibition on allowing individuals deemed sex offenders to live at host sites where any resident owns a computer or smart phone violates the Fourteenth Amendment;
e) Enter a preliminary and then permanent injunction prohibiting Defendants from continuing enforcement of 730 ILCS 5/3-3-7(b-1)(12);
f) Award Plaintiffs their reasonable attorneys’ fees and cost pursuant to 42 U.S.C. § 1988, and other applicable law; and
g) Grant such other relief as this Court deems just and proper.
COUNT IV – EIGHTH AMENDMENT (Against Both Defendants)
157. Plaintiffs reallege and reincorporate, as though fully set forth herein, each and every allegation contained above.
158. A criminal sentence must be proportionate to the crime for which the defendant has been convicted.
159. Imposition of an effective life sentence on prisoners entitled to release on MSR simply because they cannot find housing that complies with the restrictions on where they are allowed to live is grossly disproportionate and without reasonable justification.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court: a) Issue an order certifying this action to proceed as a class pursuant to
Fed. R. Civ. P. 23(b)(2);
33

Case: 1:16-cv-11471 Document #: 1 Filed: 12/19/16 Page 34 of 34 PageID #:34

b) Appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g);
c) Enter judgment declaring that the statutory schemes described herein as applied to the class violate the Eighth Amendment of the U.S. Constitution;
d) Enter a preliminary and then permanent injunction prohibiting Defendantsfrom continuing the unconstitutional policies and practices identified herein;
e) Award Plaintiffs their reasonable attorneys’ fees and cost pursuant to 42 U.S.C. § 1988, and other applicable law; and
f) Grant such other relief as this Court deems just and proper.

Plaintiffs demand trial by jury.

Law Office of Adele D. Nicholas 5707 W. Goodman Street Chicago, Illinois 60630 847-361-3869
Law Office of Mark G. Weinberg 3612 N. Tripp Avenue Chicago, Illinois 60641 773-283-3913

Respectfully submitted,
/s/ Adele D. Nicholas /s/ Mark G. Weinberg Counsel for Plaintiffs

34

 
 Case: 1:16-cv-11471 Document #: 63 Filed: 04/06/18 Page 1 of 2 PageID #:327

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Paul Murphy, et al ,

Plaintiff(s), v.

Case No. 16 C 11471 Judge Virginia M. Kendall

Lisa Madigan, et al,

Defendant(s).

ORDER

Plaintiffs’ filed a Motion for Class Certification and for Appointment of Class Counsel [41] pursuant to Fed. R. Civ. P. 23(b)(2) and 23(g)(1). Defendants do not oppose either motion provided that the motion for class certification seeks to certify only those individuals who are currently detained and not future detainees. Plaintiffs Paul Murphy, Stanley Meyer, J.D. Lindenmeyer, and Jasen Gustafsen are putative class representatives who sued Defendants Lisa Madigan and John Baldwin, in their official capacities, seeking declaratory and injunctive relief for alleged Eighth and Fourteenth Amendment civil rights violations under 42 U.S.C. § 1983. (Dkt. No. [1].) Each named Plaintiff has completed a criminal sentence for sex-related crimes and the Illinois Prison Review Board (“PRB”) granted each of them release from incarceration along with mandatory supervised release (“MSR”) ranging from three-years to life. (Id. at 3.) Instead, however, each Plaintiff is still incarcerated and they allege this is a result of “unmeetable restrictions on where [the Plaintiffs] can live that must be satisfied in order for such individuals to be released on MSR.” (Id. at 2.) In their Class Complaint the Plaintiffs identify two proposed classes:

(1) All individuals who have received an MSR sentence of three years to life currently detained in the Illinois Department of Corrections who have been approved for release on MSR by the PRB but have been denied release from IDOC custody because of their inability to find an approved host site; and

(2) All individuals who have received an MSR sentence of three years to life currently or in the future detained in the Illinois Department of Corrections who will in the future remain detained indefinitely in prison due to the unavailability of host sites.

(Id. at 24.) Subsequently, the Court dismissed as premature the claims on behalf of plaintiffinmates who alleged future civil rights violations for post-release MSR conditions where their sentences had not yet run. (Dkt. No. 31, at 7-10.) As a result, when the Plaintiffs filed their Motion for Class Certification and Appointment of Class Counsel they sought only to certify a

Case: 1:16-cv-11471 Document #: 63 Filed: 04/06/18 Page 2 of 2 PageID #:328
class of “all individuals sentenced to serve ‘three-years-to-life’ on MSR currently detained in the Illinois Department of Corrections (“IDOC”) who have been approved for release on MSR by the PRB but have been denied release from IDOC custody because of their inability to obtain an approved host site.” (Dkt. No. 41, at 1.) Therefore, the motion to certify the class and the appointment of class counsel [41] are both granted as defined.

Date: 4/6/2018

/s/Virginia M. Kendall United States District Judge

 
 Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 1 of 24 PageID #:166

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Paul Murphy, et al.,

Plaintiffs,

Lisa Madigan, et al.,

v.

Defendants.

) ) No. 16 C 11471 ) ) Judge Virginia M. Kendall ) ) ) ) )

MEMORANDUM OPINION AND ORDER Plaintiffs, a class of indigent sex-offenders, remain imprisoned indefinitely because they cannot find approved housing after completing their prison sentences. Plaintiffs allege violations of their rights under the Eighth and Fourteenth Amendments and are bring this action for declaratory and injunctive relief against Defendants Attorney General Lisa Madigan, in her official capacity as the Attorney General of Illinois, and John Baldwin, in his official capacity as the director of the Illinois Department of Corrections (IDOC). Defendants move to dismiss the Complaint on three grounds: (1) two of the Plaintiffs lack standing because, unlike the other Plaintiffs, they have not finished the terms of their incarceration; (2) the relief requested is appropriate for a habeas corpus action, not a 42 U.S.C. § 1983 action; and (3) Plaintiffs fail to allege sufficient facts for their constitutional claims. The Motion is granted with respect to the two Plaintiffs with time left in their prison sentences; the Motion is denied on the grounds that it should have been brought as a habeas action; and the constitutional claims stand with the exception of the due process claim alleging vagueness.

1

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 2 of 24 PageID #:167
I. Facts This Court takes the following allegations from the Complaint and treats them as true for
purposes of this memorandum opinion and order. There are approximately 4,000 individuals imprisoned in the IDOC who have been convicted for sex-related offenses for which state law imposes three-years to life of “Mandatory Supervised Release” (MSR). (Dkt. 1 at ¶ 3.) The majority of these individuals are unable to find approved housing (“host sites”) to serve their MSR terms and so their MSR sentences are in effect converted to life sentences without possibility of release. (Id. at ¶¶ 1, 4.) The named Plaintiffs fall into this category. (Id. at ¶ 5.)
Decision makers in IDOC have wide discretion whether or not to release Plaintiffs to serve their MSR terms. Individuals convicted of “predatory criminal sexual assault of a child, aggravated criminal sexual assault” after July 1, 2005, or of “aggravated child pornography … manufacture of child pornography, or dissemination of child pornography” after January 1, 2009, are subject to the mandatory imposition of an indeterminate term of MSR “rang[ing] from a minimum of three years to a maximum of the natural life.” 730 ILCS 5/5-8-1(d)(4). A person with an indeterminate MSR sentence of “three years to life” can only apply for termination of his MSR after successfully completing three years of MSR outside of prison. 730 ILCS 5/3-142.5(d); (Id. at ¶ 23.)
Plaintiffs allege that the PRB (Prison Review Board) and IDOC misuse their discretion in determining whether to approve proposed host sites. (Dkt. 20 at 16.) The PRB is responsible for establishing release dates from prison and setting the conditions for release on MSR. 730 ILCS 5/3-3-1. (Dkt. 1 at ¶ 24.) The IDOC retains custody of all prisoners approved for release on MSR by the PRB and is charged with assuring that prisoners are in compliance with the conditions set by the PRB before they are released from an IDOC facility on MSR. 730 ILCS
2

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 3 of 24 PageID #:168
5/3-14-2. The IDOC has the sole authority to approve or deny a proposed host site. (Id. at ¶ 30.) The IDOC also has discretion to impose “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 agency.” 730 ILCS 5/3-3-7(a)(7.11)(iv). The IDOC, pursuant to this authority, routinely prohibits individuals from serving their MSRs at any host site where any resident has a computer or smart phone with internet capabilities. (¶ 51.) Plaintiffs allege that the PRB and IDOC misuse the wide discretion granted under the statutory scheme and relevant policies.
The PRB and IDOC rely on several sources from the Illinois Code in making their decisions. For example, it is unlawful to “knowingly reside within 500 feet of a school building[,]” 720 ILCS 5/11-9.3 (b-5); and there are 4,979 primary and high schools in Illinois. (Dkt. 1 ¶¶ 34, 35.) It is also unlawful for a sex offender to “knowingly reside within 500 feet of a playground … [or] day care center” 720 ILCS 5/11-9.3(b-10); and in the City of Chicago there are 332 Chicago Park District owned playgrounds and in Illinois there are 9,929 licensed daycare providers. (Id. at ¶¶ 36–38.) A convicted sex offender also may not reside while on MSR at the same address or in the same condominium/apartment building or trailer park where he knows another convicted sex offender has been placed, unless such housing is an IDOC-approved halfway house or medical facility, 730 ILCS 5/3-3-7(a)(7.6); and there are currently no halfway houses in the state of Illinois that accept sex offenders. (Id. at ¶¶ 41–43.) Sex offenders are also prohibited from “resid[ing] near … parks, schools, day care centers, swimming pools, beaches, theaters, or any other places where minor children congregate[,]” 730 ILCS 5/3-3-7(b-1)(12); and in the city of Chicago there are 581 parks. (Id. at ¶ 45.) There are no definitions of the word “near” or “any other places where minor children congregate” in the Code. (Id. at ¶¶ 46, 47.)
3

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 4 of 24 PageID #:169
IDOC officials routinely cite the prohibition on living “near” the locations in the statute to deny housing (Id. at ¶ 49.) The Named Plaintiffs
Four of the named Plaintiffs have completed their sentences of incarceration and remain in prison with indefinite MSR terms. (Dkt. 1 at ¶ 12, 13.)1 The two other Plaintiffs also have indefinite MSR terms and are indigent, but have not yet completed their sentences of incarceration.
Plaintiff Paul F. Murphy is a prisoner at Taylorville Correctional Center in Taylorville, Illinois and a registered sex offender. (Dkt. 1 at ¶ 12.) In 2011, Murphy was convicted of aggravated child pornography, for which he was sentenced to 36 months of probation. (Id. at ¶ 63.) In August 2013 his probation was revoked because while homeless he was arrested for sleeping in the doorway of a church. (Id. at ¶ 64.) Murphy was then sentenced to three years in prison plus two years MSR. (¶ 65.) The PRB approved Murphy for release on MSR on March 3, 2014. (Id. at ¶ 12.) Murphy applied for housing at a halfway house in East St. Louis, Illinois. (Id. at ¶ 71.) At the time he applied, it was the only halfway house in the state that accepted sex offenders, but while he was on the waiting list, the halfway house closed. (Id. at ¶¶ 71-72.) Murphy has no money to pay for housing and no family members outside of prison who can provide financial help. (Id. at ¶ 12.)
Plaintiff Stanley Meyer is a prisoner at Taylorville and a registered sex offender. (Dkt. 1 at ¶ 13.) He was convicted in 2008 of criminal sex assault and sentenced to 48 months in jail plus an MSR sentence of three years to life. (Id. at ¶ 77.) The PRB approved his release on MSR on May 12, 2011. (Id. at ¶ 13.) Meyer has not been released because he cannot find a host
1 Plaintiff Keenon Smith has found an approved host site and been released since filing the Complaint. Plaintiffs agree to the dismissal of Plaintiff Smith’s equitable claims as moot.
4

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 5 of 24 PageID #:170
site. (Id.) He has no money to pay for housing and no family members outside of prison who can help. (Id.)
Plaintiff J.D. Lindenmeier is a prisoner at Taylorville and a registered sex offender (Id. at ¶ 14.) He was convicted in 2007 of predatory criminal sexual assault and sentenced to six years in jail plus an MSR sentence of three years to life. (Id. at ¶ 83.) The PRB approved him for release on July 18, 2011, but he has not been released because he cannot find an approved host site. (Id. at ¶ 14.) Lindenmeier’s family members have made substantial efforts to find a host site. (Id.) Lindenmeier has proposed six different host sites with various family members who are willing to take him in but the IDOC has rejected all six. (Id.) He proposed his father’s home which the IDOC denied because the house is within 500 feet of a prohibited location. (Id. at ¶ 87.) He proposed his mother’s home which the IDOC denied because her residence contains a computer and smart phone. (Id.) He proposed his girlfriend’s home which the IDOC denied because it is within 500 feet of a prohibited location. (Id.) He proposed his sister’s home which the IDOC denied because she has children and a smart phone. (Id.) The IDOC denied his father’s girlfriend’s home because it is within 500 feet of prohibited location. (Id.) The IDOC denied his mother’s boyfriend’s home because the house contains a computer and is located within 500 feet of prohibited location. (Id.)
Plaintiff Jason Gustafsen is a prisoner at Lincoln Correctional Center in Lincoln, Illinois and a registered sex offender. (Dkt. 1 at ¶ 16.) He was convicted in 2013 of aggravated child pornography, for which he was sentenced to four years in prison at 50 percent plus a term of MSR of three years to life. (Id. at ¶ 103.) He earned three months good time, thereby converting his sentence to one year and nine months. (Id. at ¶ 104.) The PRB approved Gustafsen for release on MSR on October 19, 2014. (Id. at ¶ 16.) He has no financial resources of his own and
5

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 6 of 24 PageID #:171
no family members who are able to pay for his housing outside of prison. (Id. at ¶ 16.) His only options are to stay with his mother or his aunt. (Id. at ¶ 16.) The IDOC rejected his mother’s home because it is too close to a prohibited location and his aunt’s home because she has grandchildren who regularly visit her. (Id. at ¶¶ 107, 108.)
The remaining two Plaintiffs have not completed their sentences of incarceration. Alfred Aukema is a prisoner at Taylorville and a registered sex offender. (Dkt. 1 at ¶ 17.) He was convicted in 2013 of criminal sexual assault for which he received a five-year prison sentence plus a term of mandatory supervised release of three years to life. (Id. at ¶ 111.) He is scheduled to complete his five-year prison sentence on September 7, 2017. (Id. at ¶ 17.) He has no financial resources to pay for a host site and no friends or family outside of prison who can take him in or pay for his housing. Plaintiff Kevin Tucek is a prisoner at Taylorville and a registered sex offender. (Id. at ¶ 18.) He was convicted in 2014 of criminal sexual assault for which he received an eight-year prison sentence plus MSR of three years to life. He is scheduled to complete his eight-year prison sentence on July 20, 2020. (Id. at ¶ 18.) Tucek has no financial resources to afford to pay for his housing. (Id. at ¶ 18.) His indefinite MSR period will in all likelihood result in a lifetime imprisonment. (Id. at ¶ 18.) II. The Standard of Review
In order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
6

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 7 of 24 PageID #:172
alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. at 678).
Defendants move to dismiss the Complaint on three grounds. First, Defendants assert that two of the Plaintiffs’ claims are not ripe because they have not yet completed their terms of incarceration. Next, Defendants move to dismiss the Complaint because their claims fall within the scope of habeas corpus rather than 42 U.S.C. § 1983. Finally, Defendants move to dismiss each of Plaintiffs’ individual constitutional claims: substantive due process; Eighth Amendment; equal protection; procedural due process; and Plaintiffs’ claim that the residency restrictions in the Illinois Code is void for vagueness. III. Ripeness
Defendants assert that Alfred Aukema and Kevin Tucek’s claims should be dismissed because they have not completed their sentences and therefore their claims are not ripe for review. (Dkt. 20 at ¶ 10.) “Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148–149 (1967); accord, Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 732–733 (1998).). “The ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction[.]” Id. (internal quotations omitted). To determine whether an action is of “sufficient immediacy and reality” for judicial review requires the court to evaluate “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of
7

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 8 of 24 PageID #:173
withholding court consideration.” Id. (quoting Abbott Laboratories, 387 U.S. at 149.) “Both aspects of the inquiry involve the exercise of judgment, rather than the application of a blackletter rule.” Id.
Turning to whether the issues are fit for judicial decision, Aukema and Tucek fear that because they do not have the financial resources, they will not be able to find approved housing upon completion of their sentences and therefore they will be incarcerated for life. (Dkt. 1 at ¶ 12, 23.) However, determining now whether their circumstances will remain the same upon their release requires impermissible speculation. See Wisconsin Right to life State Political Action Committee v. Barland, 664 F.3d 139, 148 (7th Cir. 2011) (“Ripeness concerns may arise when a case involves uncertain or contingent events that may not occur as anticipated, or not occur at all.”) (internal citations omitted). Aukema’s sentence of incarceration will be completed on September 27, 2017 and Tucek’s on July 20, 2020. Although it is true that they may face the same conundrum as the other Plaintiffs, the Court cannot assume that to be the case. Until they have each gone through the process and proposed sites have been rejected by IDOC, the Court cannot assume that no suitable residence will be located for them to serve out their MSR periods. The Court likewise cannot assume that the relevant laws will remain in effect and unamended.
Other courts have similarly dismissed claims as premature when a prisoner challenges post-release conditions while still in physical custody. In Kirby v. Siegelman, a convicted sex offender brought § 1983 claim challenging the Alabama Community Notification Act that, upon his release from prison, required him to notify victims and neighbors of his offender status. 195 F.3d 1285, 1290 (11th Cir. 1999). But because Kirby had not yet been released, the Eleventh Circuit determined that adjudication of his post-release condition was not ripe because he had not yet suffered an injury. Id. See also United States v. Veal, 322 F.3d 1275 (11th Cir. 2003)
8

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 9 of 24 PageID #:174
(applying the Kirby holding, challenge to sex offender registration law was not ripe while prisoner was still in prison). Outside of the sex offender context, courts have also rejected claims as unripe which challenge post-release conditions while a plaintiff is still in the prison’s physical custody. In Carver v. Chapman, for example, prison regulations permitted early release when a prisoner participated in a residential drug abuse treatment program. Carver v. Chapman, 2009 WL 1651512 (N.D. Tex. May 21, 2009). The plaintiff challenged the categorical exclusion of inmates with felony convictions involving firearms from eligibility but the district court determined her claims were not ripe because she had not yet participated in and successfully completed a drug abuse program and therefore had not been denied reduction. Id. at *2; see also, e.g., U.S. v. Charmichael, 343 F.3d 756, 761–762 (5th Cir. 2003) (plaintiffs’ challenge to the constitutionality of DNA sampling during supervised release not ripe because plaintiffs had not yet been released); see also, e.g., Themeus v. ICE, No. 15 C 39, 2015 WL 3952708 (N.D. Fla June 29, 2015) (challenge to future ICE detention not ripe because plaintiff was still in prison and therefore the removal period had not begun); see also, e.g., Israel v. Dr. Worral, et al., No. 14 C 158, 2014 WL 7212958 (D. Alaska December 17, 2014) (plaintiff’s § 1983 claim based on a future discretionary parole was not ripe while he was still in prison); see also, e.g., Abreu v. Ayers, No. 98-3099, 1998 WL 544968 (N.D. Cal. August 17, 1998) (plaintiff’s safety concerns about being released into general population was not ripe when his placement post-release from a security housing unit had not yet been determined.)
Aukema and Tucek are similarly attempting to bring a claim based on post-release MSR conditions when they have not yet been released on MSR. They have not yet suffered an injury. If they are denied housing when their sentences are complete, then their claims will ripen, but in
9

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 10 of 24 PageID #:175
the meantime, they cannot bring a claim constructed on speculation. Accordingly, Aukema and Tucek’s potential future problem is not ripe and dismissal of their claims is proper. IV. Title 42 U.S.C. § 1983
Next, Defendants move to dismiss the Complaint as barred by the Heck doctrine because the claims fall in the scope of habeas corpus. Both “42 U.S.C. § 1983 and the federal habeas corpus statue, 28 U.S.C. § 2254 provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation.” Heck v. Humphrey, 512 U.S. 477, 480 (1994). The Court must therefore determine whether Plaintiffs’ claims fall in the purview of § 1983 or habeas corpus.
A brief overview of Heck and its progeny provides a useful starting point in this analysis. In Heck, a prisoner alleged that state officials conducted an arbitrary investigation, had knowingly destroyed exculpatory evidence, and had caused an illegal voice identification procedure to be used at the plaintiff’s criminal trial. 512 U.S. at 479. The prisoner in Heck was not specifically seeking immediate or speedier release, but because his damages claim challenged the legality of his conviction, the § 1983 claim was dismissed. Id. at 481. Heck therefore directs the district courts to “consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” and if it does then “the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 486–487. Next, in Edwards v. Balisok, a prisoner brought a § 1983 action and alleged that his hearing officer had concealed exculpatory witness statements in a hearing on the prisoner’s rule infractions; the finding caused him to lose 30 days of good credit. 520 U.S. 641, 643, 646 (1997). Because his claim was based on allegations of the hearing officer’s deceit and bias, it necessarily implied the invalidity of the punishment imposed
10

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 11 of 24 PageID #:176
and therefore was not cognizable under § 1983. Id. at 648. In its holding, Edwards made clear that Heck extends to the decisions of prison disciplinary tribunals, like the Defendants who determine housing in the instant case. Defendants also support their Heck theory with citations to several district court cases, such as Lacy v. Unknown Parole Agent, that applied the Heck doctrine and prohibited a plaintiff from challenging a PRB decision to revoke MSR. No. 12 C 9407, 2012 WL 6217529 at *2 (N.D. Ill. Dec. 12, 2012).
Plaintiffs’ claims do not fall in line with the Heck cases, however, because here the claims do not “necessarily imply the invalidity” of Plaintiffs’ sentences but instead challenge the constitutionality of the procedures applied by Defendants in determining MSR. Heck, 512 U.S. at 486–487 (emphasis added); see also Spencer v. Kemna, 523 U.S. 1 (1998) (“If, for example, petitioner were to seek damages ‘for using the wrong procedures, not for reaching the wrong result,’ and if that procedural defect did not ‘necessarily imply the invalidity of’ the revocation, then Heck would have no application [at] all.”) See also Wilkinson v. Dotson 544 U.S. 74, 78 (2005) (Ohio’s argument that plaintiffs should have brought their action under habeas “lies in its jump from a true premise (that in all likelihood the prisoners hope these actions will help bring about earlier release) to a faulty conclusion (that habeas is their sole avenue for relief).”) In Heck, Edwards, and Lacy, each of the plaintiffs’ claims necessarily implied the invalidity of either the prisoner’s conviction (Heck) or disciplinary board’s sanction (Edwards) or revocation of MSR (Lacy). In none of the cases did the plaintiffs attack the constitutionality of the procedures themselves. See, e.g., Id. at *3 (plaintiff conceded that he had received the required process for the MSR revocation.).
Furthermore, while in Edwards the claim of deceit and bias on the part of the decision maker fell in the purview of habeas, the case was remanded on plaintiff’s claim for prospective
11

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 12 of 24 PageID #:177
injunctive relief because that claim would “not necessarily imply the invalidity” of his loss of good time credits. Edwards requested injunctive relief to correct the prison officials’ consistent failure to date-stamp witness statements upon receipt. 520 U.S. 648–649. Plaintiffs’ claims are more similar to Edwards’ attack on the process of date stamping than to his claim of deceit and bias. In their Complaint, Plaintiffs request that the Court enter a judgment declaring the statutory scheme violates the Eighth Amendment, enter a preliminary and then permanent injunction prohibiting Defendants from continuing the unconstitutional policies and practices, and award attorneys’ fees and costs. (Dkt. 1 at 33–34.) Plaintiffs do not allege unlawful acts of the decision makers that would necessarily overturn the decision denying them housing like Edwards’ deceit and bias claim. Instead, Plaintiffs allege that the procedure for determining housing is unconstitutional and, like Edwards’ claim for injunctive relief, that claim is properly brought under § 1983.2 Should Plaintiffs prevail, some of the Plaintiffs may, hypothetically, be released on MSR because under constitutional procedures because the Defendants may be more likely approve proposed host sites. The possibility of this outcome, however, does not necessarily imply the validity of their sentences and therefore the claims are not barred by the Heck doctrine.
This conclusion is also consistent with Graham v. Broglin: “[i]f the prison is seeking what can fairly be described as a quantum change in the level of custody … then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is
2 Similarly, Justice Ginsburg concurred in Edwards only with the understanding that had the prisoner alleged other procedural defects, such as the failure of prison officials to specify what facts and evidence supported the finding of guilt, that“[a] defect of this order, unlike the principal ‘deceit and bias’ procedural defect [prisoner] alleged … would not necessarily imply the invalidity of the deprivation of his good-time credits, and therefore is immediately cognizable under § 1983. Id. at 649–650.
12

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 13 of 24 PageID #:178
challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law[.]” 922 F.2d 379, 381 (7th Cir. 1991).
Defendants rely on Graham and assert that Plaintiffs here are seeking a “quantum change” in custody and therefore are barred by Heck. The plaintiff in Graham brought a habeas corpus challenge of a denial of his eligibility for a work release program but his claim should have been brought as a civil rights suit: “[t]he line is not a sharp one, and work release falls smack in the middle. But since we must choose, we think it is closer to the second pole than to the first.” Id. at 381. It follows that if a challenge to denial of a work release decision is not a “quantum” change, then neither would a challenge to the decision of MSR. Both work release and MSR involve a change in location that, while less restrictive than prison, are a continuation of the sentence. Defendants do not clarify the distinction between the two but suggest that under Graham “claims of entitlement to probation, bond, parole fall within the Heck rule,” and therefore Plaintiffs’ claims are barred. (Dkt. 20 at 10.) However, Plaintiffs do not claim “entitlement” to parole or MSR. Plaintiffs claim entitlement to a constitutional process in determining whether they will be released on MSR, not to release on MSR. Richmond v. Scibana clarifies the distinction first outlined in Graham: “a prisoner claiming a right to release on parole must use § 2241 (or § 2254 for a state prisoner); but a prisoner claiming that parole officials are apt to use incorrect rules when resolving a future application must use the APA (or 42 U.S.C. § 1983 for a state prisoner).” 387 F.3d 602, 605 (7th Cir. 2004). Here, Plaintiffs do not claim a right to release but instead that officials are using unconstitutional rules. Therefore, Graham and Richmond support Plaintiffs’ claims as properly brought under § 1983.
13

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 14 of 24 PageID #:179
V. Substantive Due Process Claim Defendants assert that Plaintiffs’ substantive due process claim fails because claims
based on the constitutionality of criminal punishments are properly analyzed under the Eighth Amendment and therefore the substantive due process claim is duplicative. (Dkt. 20 at 13.)
Relying on Albright v. Oliver, Defendants argue that, “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” 510 U.S. 266, 273 (1994). In Albright, the issue was straightforward. The plaintiff asked the court to recognize a substantive right under the Fourteenth Amendment to be free from criminal prosecution except upon probable cause. The Fourth Amendment, however, requires a judicial determination of probable cause as a prerequisite to any extended restraint on liberty following an arrest. Id. at 274 (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)).
The connection between these facts and a specific amendment is not as obvious as the connection between probable cause and the Fourth Amendment in Albright. Defendants’ argument therefore oversimplifies a “difficult question.” Werner v. Wall, 836 F.3d 751, 766 (7th Cir. 2016). In Werner, a sex offender brought a § 1983 claim alleging Eighth Amendment and due process violations in relation to his multiple detentions before he moved into an approved residence. Werner acknowledged, but never resolved, the “difficult question” as to whether the treatment of detained individuals not subject to sentences of incarceration, like the Plaintiffs in this case, is appropriately analyzed under the Eighth Amendment or substantive due process. Id. at 760–761. For example, an error in the computation of a sentence implicates the Eighth Amendment while treatment of a pretrial prisoner is governed by substantive standards of Due
14

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 15 of 24 PageID #:180
Process. Id. Ultimately, the appellate court found defendants were entitled to qualified immunity and never attempted to reconcile the constitutional tension. Nevertheless, Werner contemplates that the same factual nucleus might raise both Eighth Amendment and substantive due process principles.
Certainly at this early stage of litigation, Plaintiffs’ claims are not sufficiently developed to determine whether the claims fit more properly under substantive due process or the Eighth Amendment. A plaintiff is allowed to plead duplicative claims or claims in the alternative: “[a] party may set out 2 or more statements of a claim … alternatively or hypothetically, either in a single count … or in separate ones.” Fed. R. Civ. P. 8(d)(2). The argument the claim is duplicative holds no water and Plaintiffs’ may proceed on their substantive due process claims. VI. Eighth Amendment
Defendants also argue that, should the Court allow Plaintiffs to proceed on both the substantive due process and Eighth Amendment claims that Plaintiffs nevertheless fail to state a claim under the Eighth Amendment because the Constitution does not require strict proportionality between a crime and its punishment. Defendants further argue that Plaintiffs have not alleged that they have been effectively given life sentences, but even if they had, that Plaintiffs were charged with Class X felonies which may be punished with a sentence of up to natural life in prison.
Protection from disproportionate sentences is just one of the Eighth Amendment’s protections. The Amendment circumscribes the criminal process in three ways: “[f]irst, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright,
15

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 16 of 24 PageID #:181
430 U.S. 651, 667-668 (1977) (internal citations omitted). In particular, “[a] plaintiff states a claim for an Eighth Amendment violation if he is detained in jail for longer than he should have been due to the deliberate indifference of corrections officials.” Childress v. Walker, 787 F.3d 433, 439 (7th Cir. 2015). Defendants only moved to dismiss based on the second circumscribed protection, but Plaintiffs’ claim is not based on proportionality.
Plaintiffs have sufficiently alleged that Defendants were deliberately indifferent in failing to release them and therefore state a claim. See, e.g., Stepney v. Johnson, 2016 WL 5720367 (N.D. Ill. 2016) (plaintiff stated an Eighth Amendment claim by alleging that prison officials knew that he was eligible for release and deliberately held him beyond his period of incarceration.) According to the Complaint, Defendants knew that Plaintiffs did not have financial resources to find housing, that there are no halfway houses that take sex-offenders in Illinois, and still rejected proposed host sites leading to indefinite incarceration. Based on these allegations, it is hard to envision an acceptable host site for an indigent prisoner: to find a house in 2017 without a smart phone is in it of itself a near impossible task. Taken together with the wide discretion Defendants have in making their housing determinations, the rejections of host sites which results in Plaintiffs’ indefinite incarceration may constitute deliberate indifference. Childress, 787 F.3d at 439. These allegations are therefore sufficient to support their Eighth Amendment claim. VII. Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” which essentially is a direction that all persons similarly situated should be treated alike. U.S. Const. Amend. XIV, Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1000 (7th Cir. 2006). Often an equal
16

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 17 of 24 PageID #:182
protection violation occurs when a regulation draws distinctions among people based on a person’s membership in a “suspect” class. Martin v. Shawano–Gresham Sch. Dist., 295 F.3d 701, 712 (7th Cir. 2002). Suspect classes include race, alienage, and national origin and legislative action that classifies on any of these bases are subject to “strict scrutiny and [it] will be sustained only if [it is] suitably tailored to serve a compelling state interest.” Vision Church, 468 F.3d at 1000 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). When a statute burdens a person’s fundamental constitutional rights, courts also apply strict scrutiny. Id. If neither suspect class nor fundamental right is asserted, the Court applies rational review to determine whether the legislative act is constitutional. Id. at 1000-01.
Plaintiffs assert that the statutory scheme requiring Plaintiffs to obtain compliant housing before being released on MSR discriminates against those who are too poor to afford housing. (Dkt. 23 at 11.) Plaintiffs concede, however, that indigent persons are not considered a suspect class under Equal Protection jurisprudence, but nevertheless argue for strict scrutiny under the theory that a fundamental right is implicated: freedom from bodily restraint. (Id.) Put another way, the permanent imprisonment of indigent sex offenders violates Plaintiffs’ fundamental right to freedom from bodily restraint requiring heightened review under the equal protection clause.
Freedom from bodily restraint is a recognized fundamental right protected by the equal protection clause. See Foucha v. Louisiana, 504 U.S. 71, 73, 83 (1992); see also, e.g., Ebonie S. v. Pueblo School Dist. 60, 695 F.3d 1051 (recognizing freedom from bodily restraint is a fundamental right under equal protection); see also, e.g., Hydrick v. Hunter, 500 F.3d 978, 983 (9th Cir. 2007) (same), vacated on other grounds, 556 U.S. 1256 (2009). In Foucha, the plaintiff had been civilly committed under the then-Louisiana state process that “allow[ed] a person acquitted by reason of insanity to be committed to a mental institution until he is able to
17

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 18 of 24 PageID #:183
demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness.” 504 U.S. at 73. The Louisiana state appellate court rejected the plaintiff’s argument that his equal protection rights were violated by the statutory scheme that allowed confinement of an insanity acquittee based on dangerousness alone. The Supreme Court reversed: “[f]reedom from physical restraint being a fundamental right, the State must have a particularly convincing reason, which it has not put forward, for such discrimination against insanity acquittees who are no longer mentally ill.” Id. at 86. Undercutting Louisiana’s stated rationale for the statute, to protect the community from danger, the court pointed out that criminals who have completed their terms are an “obvious and large category of such persons” who also cannot prove they are not a danger but are nevertheless released on the completion of their sentence. Therefore, there was no particularly convincing reason for discriminating against insanity acquitees.
Like insanity aquitees, indigent prisoners are not a suspect class. Nevertheless, the same fundamental right is a stake here as was in Foucha. And as Foucha recognized, just as criminals as a group are an “obvious” category of people who might not be able to prove that they are no longer a danger upon the completion of their sentences, nothing in the pleadings suggest that indigent sex offenders are more of a danger to the community than those with financial resources. For example, there is no particularly convincing reason for individuals such as Lindenmeier, whose custodial sentence ended in 2011 and has proposed at least six different host sites, to continue to sit in prison, on the taxpayer’s dime, because of his indigent status. There is no reason to believe that if Lindenmeir could afford to live alone that he would be less of a danger than if he were to live in one of the six host sites. There is also no particularly convincing reason for giving Defendants unfettered discretion in approving housing, such that
18

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 19 of 24 PageID #:184
their decision making process allows them to entirely bar indigent sex offenders’ release from prison. Plaintiff Stanley Meyer was convicted in 2008 and sentenced to 48 months in prison. He has already sat in prison more than three years beyond the completion of his sentence and with no end in sight. Undoubtedly the state has an interest in protecting the community from sex offenders, but turning a four year sentence into an indefinite one when there has been no further criminal conduct is an obvious offense to Meyer’s fundamental right to freedom from bodily restraint.3 The equal protection claim survives at this stage. VIII. Procedural Due Process
Next, Defendants argue that Plaintiffs fail to state a claim for violations of procedural due process because Plaintiffs had notice and an opportunity to be heard with respect to the IDOC’s decisions. (Dkt. 20 at 19.) To succeed in a procedural due process claim, the Plaintiffs must prove that: (1) they have a cognizable liberty interest under the Fourteenth Amendment; (2) they were deprived of that liberty interest; and (3) the deprivation was without due process. Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013). “Due process requires government to follow reasonable procedures for minimizing mistaken deprivations of liberty.” Atkins v. City of Chicago, 631 F.3d 823, 827 (7th Cir. 2010).
Defendants assert that because Plaintiffs are part of the same class as those in Murdock v. Walker, where the district court held that the plaintiffs did not have a procedural due process claim, that Plaintiffs are bound to the same conclusion here. 2014 WL 916992 (N.D. Ill. 2013). In Murdock, plaintiffs, like those here, were sex-offender inmates who were never released on MSR due to lack of an approved housing location. The plaintiffs in Murdock brought a
3 As Winston Churchill observed, “[n]othing can be more abhorrent to democracy than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilization.”
19

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 20 of 24 PageID #:185
procedural due process claim challenging the prison’s “turnaround procedure.” The turnaround policy specifically referred to the IDOC’s practice of “literally walk[ing] the person to the front gate of the jail as if he was about to be released. But then, instead of releasing the inmate, the jail employee handed the inmate a notice informing him that he had violated the housing requirement of his release[,]” and were then taken back into custody. Id. at *3. The plaintiffs in Murdock further had a procedural due process claim based on the fact that they did not receive adequate notice as to why or how their home was unsuitable. The district court held on summary judgment that the plaintiffs had not shown that the turnaround procedure failed to provide them with adequate notice under the due process clause. Id. at *12.
The Court faces at least three threshold issues with Defendants’ reliance on Murdock. First, Defendants ask the Court to accept that the classes are the same without any support for that proposition. There are no proposed legal guideposts for determining whether two classes in two separate cases are the same class. And there are some obvious distinctions between the classes in the two cases. For example, the descriptions of the classes are not identical. According to the Complaint, “The named Plaintiffs are individuals currently being held in the custody of the Illinois Department of Corrections who have been sentenced to serve ‘three years to life’ MSR terms and are unable to find ‘host sites.’” (Dkt. 1 ¶ 5.) In Murdock, the district court describes the class as “past, current, and future Illinois sex-offender inmates who were (or will be) approved for release from prison, either on parole or under [MSR]. The Plaintiffs were not (or will not be) actually released from prison on their release date, however, because they lack an approved housing location.” Id. at *1. In the instant case, Plaintiffs more specifically have been sentenced to three years to life, a specification apparently not applicable to the class in Murdock. Second, while this case is at the pleading stage and has not reached class certification,
20

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 21 of 24 PageID #:186
the district court had the benefit of a complete record at summary judgment in Murdock. This makes it even more difficult to do a meaningful comparison of the classes. Third, Defendants only cite to Johnson v. Meriter without any parenthetical or further analysis to suggest that case states that one district court’s conclusion is binding on a class in any other litigation the class brings. Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d 364 (7th Cir. 2012). But in Johnson, one district court determined class certification for benefit plan participants’ claim under ERISA and analyzed whether divided certification was appropriate. The district court did not consider the class before it in any other case or any conclusions made by another district court as Defendants ask the Court to do here and nothing else in Johnson supports Defendants’ theory.
But even if the plaintiffs in Murdock represent the same class as the Plaintiffs here (sex offenders with indeterminate MSR sentences who cannot find approved host sites), the procedural due process claims are distinguishable. Plaintiffs do not mention the turnaround practice nor do they bring a claim based on inadequate notice. Instead, Plaintiffs allege that “[t]he IDOC routinely misuses the discretion it has been granted under this statute to deny approval of proposed ‘host sites” for reasons not enumerated in any statute.” (Dkt. 1 at ¶ 151.) “[T]he IDOC’s misuse of their discretion to deny approval of housing without adequate justification violates due process.” (Id. at ¶ 156.) Because Plaintiffs are not challenging the same procedures in their procedural due process claims, the decision in Murdock does not foreclose their action.
Defendants further assert that Plaintiffs only set forth facts to support a substantive due process claim, not a procedural one. (Dkt. 24 at 13.) In support of this argument, Defendants cite to Strasburger v. Bd. of Educ., Hardin Cty. Cmty. Unit Sch. Dist. No. 1, in which a former
21

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 22 of 24 PageID #:187
teacher challenged the substance of the government’s decision in terminating him. 143 F.3d 351, 357 (7th Cir. 1998). It logically follows that because the teacher challenged the substance of the decision, substantive due process applied, “as opposed to challenging the process the decisionmakers used on procedural due process grounds.” Id. at 357. Here, Plaintiffs are challenging “the process the decision makers used,” and therefore, as contemplated by Strasburger, procedural due process is the appropriate claim. This is similar to the Court’s previous discussion in the context of the Heck doctrine: Plaintiffs are challenging the procedures, not the result. Dismissal of the procedural due process claims, therefore, is not appropriate. IX. Void for Vagueness
Defendants move to dismiss Plaintiffs procedural due process claim that the statute granting parole agents the authority to restrict where individuals on MSR can reside, 730 ILCS 5/3-3-7(b-1)(12), is void for vagueness. Specifically, the statute prohibits anyone deemed a sex offender from “resid[ing] near ... parks, schools, day care centers, swimming pools, beaches, theaters, or any other places where minor children congregate” without prior approval of the Illinois Department of Corrections while on MSR. Dkt. 1 at 12. Plaintiffs allege that the terms “near” and “other places where minor children congregate” are void for vagueness.
Outside the context of the First Amendment, “a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (citing United States v. Salerno, 481 U.S. 739 (1987)). Plaintiffs do not contest that theirs is a facial challenge to the statute. Plaintiffs also do not contend their claim implicates the First Amendment.4 Because Plaintiffs
4 Although numerous First Amendment implications are referenced in the Complaint factually, for example, in the prohibition on host sites with internet access or smart phones, Plaintiffs have not chosen to frame their complaint in
22

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 23 of 24 PageID #:188
have not alleged a First Amendment violation, their reliance on First Amendment case law is
misplaced. In those cases, the vagueness claims were not subject to the heavy burden facial to
which attacks arising outside of the First Amendment context are subject. See Hill v. Colorado,
530 U.S. 703, 732 (2000); see also Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). Even
in Doe v. Cooper, cited to by Plaintiffs, a case in which registered sex offenders brought a §
1983 action based on a statute prohibiting the offenders from associating in the presence of
minors, the sex offenders specifically had First Amendment claims. 842 F.3d 833 (4th Cir.
2016). The Complaint does not currently allege any violations of their First Amendment rights.
The question then is whether there is “no set of circumstances [] under which the Act
would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). But there are
circumstances when the legislature relies on the word “near” and the statutes are valid. See Cox
v. Louisiana, 379 U.S. 559, 568-69 (1965). To allow the facial attack to proceed here would be
to find that any legislation incorporating the term “near” without a definition is per se
unconstitutional on vagueness grounds. The Court declines to make such a finding.
Nevertheless, the term “near” in the statute compounds the broad discretion IDOC officials have
been granted in determining whether to release Plaintiffs on MSR. Plaintiffs sufficiently allege
that these rules, taken together and applied to Plaintiffs violate their constitutional rights. But
terms of a violation of the first amendment. Such an allegation has been found to be a valid claim in Packingham v. North Carolina, by the Supreme Court. 137 S. Ct. 1730 (2017). In this recent decision, the court acknowledged that there is no doubt that sexual abuse of a child is a “most serious crime” and it is clear a legislature “may pass valid laws to protect children[,]” but broadly worded statutes prohibiting sex offenders from accessing, for example, social media like the challenged North Carolina statute in Packingham infringe on the First Amendment. The court explained the ever-expanding importance of the internet and speech: “[w]hile we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who want to be. … In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. ”
23

Case: 1:16-cv-11471 Document #: 31 Filed: 08/18/17 Page 24 of 24 PageID #:189

without any alleged First Amendment violations, a finding that this provision alone is void for vagueness is not proper and therefore the claim is dismissed for failure to state a claim.
CONCLUSION For those reasons, Defendants’ Motion to Dismiss is granted with respect to Plaintiffs Aukema and Tucek’s claims. The Motion is also granted with respect to the void for vagueness due process claim. The Motion is denied with respect to the remaining counts.

Date: August 18, 2017

__________________________________ Virginia M. Kendall United States District Court Judge Northern District of Illinois

24

 
 Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 1 of 61 PageID #:1506

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

PAUL MURHY et al., Plaintiffs,
v. KWAME RAOUL∗ et al.,
Defendants.

) ) ) ) No. 16 C 11471 ) ) Judge Virginia M. Kendall ) )
)
)

MEMORANDUM OPINION AND ORDER Paul Murphy is indigent and homeless. He was convicted of possession of child pornography in 2012 and received a sentence of three years’ probation. Five years after his release date, and nearly twice the number of years of his sentence, he remains incarcerated because the Department of Corrections cannot find an appropriate place for him live. Illinois, like many states, requires sentencing courts to follow a term of imprisonment with a term of mandatory supervised release. Supervised release is a form of post-confinement monitoring intended to assist individuals in their transition from prison to liberty. Most supervised release terms are determinate, but some—including those that apply to several sex offenses—are indeterminate, meaning they range from three years to natural life. The clock on these terms does not start ticking until

∗ Because Kwame Raoul became the Attorney General of Illinois on January 14, 2019, he automatically substitutes in as a defendant. See Fed. R. Civ. P. 25(d).
Page 1 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 2 of 61 PageID #:1507
sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them. Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable find a residence due to indigence and lack of support.
The question presented is whether this practice violates the Constitution. The plaintiffs are a class comprising the affected sex offenders and the defendants are the Attorney General of Illinois and the Director of the Illinois Department of Corrections. Both parties moved for summary judgment. (Dkts. 75, 88.) The Court now grants the plaintiffs’ motion (Dkt. 75) in part, denies it in part, and denies the defendants’ cross-motion in full (Dkt. 88). At the very heart of the liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree. The Attorney General and Director’s current application of the host site requirement results in the continued deprivation of the plaintiffs’ fundamental rights and therefore contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States.
BACKGROUND In Illinois, almost every criminal sentence includes a mandatory supervised release (“MSR”) term that follows the term of imprisonment. See 730 ILCS 5/5-4.515(c). Most MSR terms are determinate, meaning the Legislature sets a finite number of years for the offender to serve. Some terms, however—including those that attach to certain sex offenses—are indeterminate, “rang[ing] from a minimum of 3
Page 2 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 3 of 61 PageID #:1508
years to a maximum of natural life.” Id. 5/5-8-1(4)(d). In those cases, sentencing
courts must impose an indeterminate term of three years to natural life. See People
v. Rinehart, 2012 IL 111719, ¶¶ 29–30.
Statutory Scheme
The Illinois Legislature vested both the Prisoner Review Board (PRB) and the
Department of Corrections (IDOC) with authority over MSR. See Cordrey v. Prisoner
Review Bd., 2014 IL 117155, ¶ 20. The Supreme Court of Illinois explained the rela-
tionship between the PRB and the IDOC in Cordrey:
The Prisoner Review Board is independent of the Department of Corrections. 730 ILCS 5/3–3–1(a) (West 2012). The Prisoner Review Board is “the authority for setting conditions for parole, mandatory supervised release under Section 5–8–1(a) of this [Unified] Code [of Corrections], and determining whether a violation of those conditions warrant revocation of parole or mandatory supervised release or the imposition of other sanctions.” 730 ILCS 5/3–3–1(a)(5) (West 2012).
¶ 21 The Prisoner Review Board has wide discretion in setting the conditions of MSR. “The conditions of parole or mandatory supervised release shall be such as the Prisoner Review Board deems necessary to assist the subject in leading a law-abiding life.” 730 ILCS 5/3–3–7(a) (West 2012). Although the Prisoner Review Board has wide discretion, the legislature has mandated that certain sex offenders are required to wear an approved electronic monitoring device. 730 ILCS 5/3–3– 7(a)(7.7) (West 2012).
¶ 22 While the Prisoner Review Board is the authority for setting conditions for MSR and determining whether a violation of those conditions warrants revocation of MSR, the Department of Corrections retains custody of all persons placed on parole or MSR. See 730 ILCS 5/3–14–2(a) (West 2012). The Department of Corrections “shall supervise such persons during their parole or release period in accord with the conditions set by the Prisoner Review Board. * * * Such conditions may include that the person use an approved electronic monitoring device * * *.” 730 ILCS 5/3–14–2(a) (West 2012). Included within the Department’s custody are “all sex offenders placed on mandatory supervised release.” 730 ILCS 5/3–14–2.5(a) (West 2012). The legislature has directed that the
Page 3 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 4 of 61 PageID #:1509
Department of Corrections “shall assign personnel to assist persons eligible for parole in preparing a parole plan. Such Department personnel shall make a report of their efforts and findings to the Prisoner Review Board prior to its consideration of the case of such eligible person.” 730 ILCS 5/3–14–2(b) (West 2012).
¶ 23 A parolee or releasee’s supervising officer “shall report violations to the Prisoner Review Board and shall have the full power of peace officers in the arrest and retaking of any parolees or releasees or the officer may request the Department to issue a warrant for the arrest of any parolee or releasee who has allegedly violated his parole or release conditions.” 730 ILCS 5/3–14–2(c) (West 2012). The Code provides that, “[t]o assist parolees or releasees, the Department shall provide employment counseling and job placement services, and may in addition to other services provide the following: (1) assistance in residential placement.” (Emphasis added.) 730 ILCS 5/3–14–3(1) (West 2012).
2014 IL 117155, ¶¶ 20–23. So, the PRB sets the conditions for an inmate’s MSR, but
the Legislature directed the IDOC to assist inmates with finding a suitable “host site”
for residential placement. See id. ¶ 24.
Even if the PRB approves an individual for MSR, the IDOC will not extricate
that person unless and until he or she satisfies certain conditions, most importantly
securing a qualifying host site to reside at while on MSR. (Dkt. 91 ¶ 2.) The IDOC
exercises the sole power to approve or deny an inmate’s proposed host site based on
a variety of statutes and regulations that restrict where sex offenders may live while
on MSR. Id. ¶¶ 3–5. Ultimately, a parole agent must okay the placement. Id. ¶ 4.
In the case of a someone who is labeled a sex offender, a variety of other stat-
utes and rules also kick in to restrict where and how that individual may reside.
These include registration laws and regulations that prohibit sex offenders from liv-
ing a certain number of feet from schools, parks, and day care centers, as examples.
The only time a person can apply for the termination of his or her indeterminate MSR
Page 4 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 5 of 61 PageID #:1510
term is after successfully serving three years of that term outside of prison. Id. ¶ 5. Taken together, what all this means is that someone who the PRB approves for release after serving his or her entire term of imprisonment will remain indefinitely confined if the individual is unable to identify a host site that passes muster. Id. Host Site Review
No more than six months before release, an inmate may propose a host site by giving an address to the field services representative or counselor at the facility who then enters that information into a database. (Dkt. 107 ¶ 1.) Next, the database routes the proposed host site to the appropriate district, where the parole commander verifies the receiving district is correct and that the MSR date of entry is no more than six months away. Id. ¶ 2. If those things check out, the commander assigns the host site to a parole agent. Id. The assigned agent begins the host site investigation by checking the Department’s mapping software for day care centers and schools within 500 feet of the address. Id. ¶ 3. If none appear, the agent turns to Google Earth to check for playgrounds, parks, and other facilities providing programs exclusively for minors. Id. If any such grounds come up in the search, the agent will generally deny the site. Id.
Moving forward, the agent calls the local registering agency, usually the police department, to verify that it will register an offender at the specified address because state law requires it. Id. ¶ 4. The police department, in fact, has the authority to arrest and return to IDOC custody a sex offender who violates any of the residency
Page 5 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 6 of 61 PageID #:1511
restriction statutes. Id. Thus, if the local police department states that it will not register the offender at that address, the IDOC agent will deny the host site. Id.
Following the call with the police department, the parole agent visits the proposed host site. Id. ¶ 5. During this visit, the agent looks for day care centers or playgrounds that he or she perhaps missed on the map. Id. The agent will also meet with the host, if any, to ensure that he or she is indeed willing to have the offender reside there and understands all the rules. Id. ¶ 6. Additionally, the agent will determine who else resides in the house and confirm that any co-owners or co-leaseholders agreed to the offender living there. Id. The agent’s overarching aim and objective is to ensure that the home will be a good environment, meaning financially and emotionally supportive, physically safe, and structurally sound. Id. ¶ 7.
If at any point in the process the agent denies a host site, the parole commander informally reviews the denial to make certain that it is reasonable and meritorious. Id. ¶ 8; Dkt. 91 ¶ 24. The commander has the prerogative to affirm or reverse the agent’s decision. (Dkt. 107 ¶ 8.) But the parties dispute whether there is a formal process for a person to contest the decision of a parole agent to deny approval of a host site. (Dkt. 91 ¶ 22; Dkt. 107 ¶ 29.) The plaintiffs claim there is no such procedure through the proper channels in the IDOC, while the defendants state that an offender who disagrees with the denial of a host site may file a grievance at his or her facility. (Dkt. 91 ¶ 22.) In the defendants’ view, the counselor or grievance officer at the facility can request that the IDOC Parole Department reinvestigate a denied host site. Id. If the objection appears to be meritorious, the Parole Commander can
Page 6 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 7 of 61 PageID #:1512
either ask the original agent assigned to take a second look or may put a new agent on the case to investigate the site. Id. The plaintiffs dispute this, asserting again that the IDOC does not treat denials of parole sites as grievable issues. (Dkt. 107 ¶ 30.)
The defendants so state, even though their witness 30(b)(6) witness testified that he did not know whether the denial of a host site is a grievable issue. (Dkt. 91 ¶ 22 (citing in part Pl. Ex. 14, Dep. of Dixon, at 114:20–115:3); Dkt. 107 ¶ 29; Dkt. 128 ¶ 160.) What is more is that the IDOC denied one of the class members’ grievances because “‘IDOC does not set sex offender laws.’” (Dkt. 91 ¶ 26 (quoting Ex. 21).) The Administrative Review Board denied review of that decision because “‘[i]ssues are outside the scope of the ARB.’” Id. (quoting Ex. 21). The defendants did not cite a single example of a grievance concerning a host-site denial being reviewed or overturned. (Dkt. 107 ¶ 29.)
An offender may also contact the parole agent’s supervisor to request review of the agent’s decision. (Dkt. 91 ¶ 23.) But the parties dispute whether anybody advises these individuals of this right or gives them any information about how they can contest an unfavorable disposition. Id. The defendants acknowledge that the source the plaintiffs cite for the proposition that offenders never receive notice of this right or any information about potential review does not support that assertion; however, in the same breath they do not provide any evidence suggesting when they are in fact given this information. Id. (“While the cited source does not include this information, this does not mean that parolees are never given this information.”).
Page 7 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 8 of 61 PageID #:1513
What is clear is that there is no formal PRB procedure that determines whether a parole agent’s rejection of a proposed host site was appropriate or not. Id. ¶ 25. “The parolee has no opportunity to contest the parole agent’s decision(s) to reject proposed housing at a PRB hearing and the PRB does not review the IDOC’s decision to reject proposed host sites.” Id. Housing Restrictions
For at least the first two years of their indeterminate MSR terms, many sex offenders must participate in an electronic home detention program. (Dkt. 91 ¶ 6 (citing 730 ILCS 5/5-8A-3(g).) The parties dispute whether the technology utilized requires a landline. (Dkt. 91 ¶ 6; Dkt. 107 ¶¶ 16, 20; Dkt. 108 ¶ 151; Dkt. 128 ¶¶ 150– 51.) By the plaintiffs’ account, the IDOC has a “preference” for a landline, but the equipment can function without one so long as cellular service exists in the area. (Dkt. 107 ¶¶ 16, 20; Dkt. 108 ¶ 150.) The PRB may impose additional residential conditions on sex offenders while they are on MSR, such as prohibiting them from “‘resid[ing] near . . . parks, schools, day care centers, swimming pools, beaches, theaters, or any other places where minor children congregate’” without the prior approval of the IDOC. (Dkt. 91 ¶ 10 (quoting 730 ILCS 5/3-3-7(b-1)(12).)
The statute does not define “near” and thus leaves it up to the IDOC to exercise its discretion in determining whether a proposed host site is too near an off-limits location. Id. That said, the Department generally considers “near” to be 500 feet, consistent with the statute that restricts child sex offenders from residing within 500 feet of schools, playgrounds, and daycare facilities. Id. ¶¶ 10, 11 (citing 720 ILCS
Page 8 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 9 of 61 PageID #:1514
5/11-9.3). On top of that, IDOC parole agents have the option to bar a sex offender whose victim was an adult from living near locations where the offender had committed crimes in the past, such as a massage parlor or nail shop. Id. ¶ 11.
There is another statute that prohibits one sex offender from residing in the same “condominium complex or apartment complex” as another offender, and the IDOC interprets that to mean that more than one sex offender cannot live in the same trailer park, unless each trailer is on separately-owned land. Id. ¶ 12. The IDOC seems to interpret it that way because the Illinois State Police and the Chicago Police Department said it was so. Id. ¶ 13.
With respect to computers and other electronics in the home, the IDOC analyzes each request to live at a host site with internet access on a case-by-case basis. Id. ¶¶ 14, 17. The plaintiffs dispute this contention because the written policies, by their count, indicate the opposite. (Dkt. 107 ¶¶ 22–24.) The defendants claim that the Department recently promogulated new guidelines that proscribe internet-related sex offenders from living in an internet-accessible home while individuals convicted of offenses not relating to the internet (and with no history of misusing computers or the internet) may be allowed to reside in a home with internet access. (Dkt. 91 ¶¶ 14, 17.)
The plaintiffs see it the other way and contend that it fails to address the residency restrictions dealing with internet access. (Dkt. 107 ¶¶ 22–24.) Moreover, as a practical matter, the plaintiffs say the IDOC does not let any sex offender live in a host site with computers or other devices. (Dkt. 91 ¶¶ 14–17; Dkt. 107 ¶¶ 22–24.) To
Page 9 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 10 of 61 PageID #:1515
illustrate, Daniel Barron’s conviction for criminal sexual assault did not involve the use of a computer or the internet but he still may not access it. Dkt. 108 ¶¶ 148, 158; Dkt. 128 ¶ 158. By plaintiffs’ count, Jason Tucker, Nicole Uhlir, Jennifer Tyree, Mike DiMichele, Bill Carney, and Robin Frazier’s crimes all were unrelated to the internet, but notwithstanding that, the IDOC prohibits them from paroling to host sites with internet access. Id. ¶¶ 153–157, 159; Dkt. 128 ¶¶ 153–57, 159.
Upon sex offenders’ initial release, the IDOC forbids all of them—whether convicted of crimes against adults or children—from living in a home where children also live or even visits “one time.” (Dkt. 91 ¶¶ 18, 20.) Even so, a parent of a minor child may at some undefined later point request the ability to visit or live with the child. Id. ¶ 18. In other words, the IDOC will not release a married parent of a minor child to his or her own home to be with his or her spouse and child. Id. The only way that individual can get out of prison is if he or she can obtain a residence separate and apart from his or her family. Id.1
Parole agents have the additional discretion to deny approval of host sites for the presence of any of the following: a dog or other pets; alcohol; children’s toys or clothes; devices that can access the internet like an iPad (perhaps on a case-by-case basis); pictures of children (even if those children are relatives of the individual on MSR or his or her own child); cameras, binoculars, telescopes, video equipment;
1 This specific exercise of discretion is very troubling; however, the Court notes that Judge Feinerman is currently considering the constitutional propriety of this restriction in Frazier et al. v. Baldwin, No. 18-1991 (N.D. Ill. 2018). Because none of the plaintiffs in this case are parents or allege any deprivation of parental rights, the Court need not address the issue in any more detail.
Page 10 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 11 of 61 PageID #:1516
gaming systems; and safes. Id. ¶ 21. If the host agrees to remove the problematic items, however, the agent can still approve the site. Id. Transitional and Interstate Housing
There are no halfway houses or transitional housing facilities in Illinois that will accept an individual convicted of a sex offense. Id. ¶ 28; Dkt. 107 ¶ 25. Additionally, the IDOC does not permit any sex offender to use a homeless shelter as his or her host site. (Dkt. 91 ¶ 29.) This group of people is also ineligible for work release programs that the IDOC provides. Id. ¶ 30. It is possible for an offender to serve his or her MSR term outside of Illinois, however he or she must satisfy the criteria for transfers under the Interstate Compact for Adult Supervision. Id. ¶ 31; Dkt. 107 ¶ 9. These criteria include, in part, a requirement that the individual will either receive income or other financial support in the receiving state. (Dkt. 91 ¶ 31; Dkt. 107 ¶ 9– 10.) The person can prove that they receive such support with evidence that he or she has a job, a letter from a family member or friend agreeing to cover him or her, evidence that he or she receives adequate government benefits, or possibly through other means. (Dkt. 91 ¶ 32; Dkt. 107 ¶ 9–10.)
Illinois also expects the receiving state to follow its parole conditions but does not require the receiving state to follow its statutes relating to sex offenders more generally. Id. ¶ 31. For instance, if the receiving state cannot comply with a certain parole condition, such as GPS monitoring, then that state must supervise the offender at the “next closest level of supervision, consistent with how the receiving state supervise[s] its own offenders for a similar offense.” Id. The Illinois DOC will generally
Page 11 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 12 of 61 PageID #:1517
not approve a transfer if a child or any one of the offender’s previous victims (whether sex-related or not) reside at the proposed host site. (Dkt. 107 ¶ 12.)
An out-of-state host site must conform to all restrictions imposed by the receiving state. (Dkt. 91 ¶ 33.) The receiving state ultimately has the discretion to deny a discretionary transfer request based on several grounds, including that the parolee seeks transfer to a state where he or she does not have a “qualifying family member” (a parent, spouse, adult child, sibling, grandparent, aunt, or uncle). Id. ¶ 34. In total, 43 people are currently serving their MSR terms outside of Illinois. Id. ¶ 35. Only one of those people was a “discretionary transfer,” meaning all others documented their financial and housing support of at least one family member in the receiving state. Id. ¶ 36. Class Members
Paul Murphy Paul Murphy is currently incarcerated at Taylorville Correctional Center even though a court only sentenced him to 36 months of probation on one count of aggravated possession of child pornography in 2012. Id. ¶ 39. About halfway into his sentence, the court revoked his probation because he was homeless and residing in the doorway of a building located within 150 feet of a park, in addition to the facts that: his specialized sex offender treatment program unsatisfactorily discharged him; he failed to appear for a scheduled field visit; and he provided false information to his probation officer regarding his employment status. Id. ¶ 40. In 2014, the court amended Murphy’s sentence to include an MSR term of three years to life. Id. ¶ 41.
Page 12 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 13 of 61 PageID #:1518
The PRB approved him for release in March 2014. Id. ¶ 42. The IDOC did not release him then because Murphy was unable to find a host site that the IDOC would approve. Id. ¶ 43.
Although Murphy has attempted to secure a compliant host site, Murphy remains incarcerated because he cannot do so. Id. ¶¶ 43–44. For example, Murphy applied to live in a halfway house in East St. Louis. Id. ¶ 45. This effort, amongst others, was unsuccessful because Murphy cannot live in homeless shelters, missions, or halfway houses seeing that none currently accept sex offenders. Id. ¶ 46. Murphy additionally applied to a work release facility that rejected him and a technology boot camp program that has not gotten back to him yet. Id. ¶ 47. Murphy cannot afford to purchase or lease any property of his own, and he does not have a spouse or any family who can support him. Id. ¶¶ 48–49. Murphy filed a grievance with the IDOC, but the Department denied it as well as his subsequent appeal, explaining that it “‘does not make sex offender laws.’” Id. ¶ 50.
Jasen Gustafsen Jasen Gustafsen is currently incarcerated at Lincoln Correctional Center. Id. ¶ 51. In 2013, a court sentenced him to a four-year term of imprisonment (at 50%) after he pleaded guilty to one count of aggravated possession of child pornography. Id. Accompanying Gustafsen’s prison term was an MSR term of three years to life. Id. The PRB approved Gustafsen for release in October 2014. Id. ¶ 52. As soon as possible, Gustafsen began submitting host sites for approval, starting with his mother’s residence, which the IDOC denied because of its proximity to a day care. Id.
Page 13 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 14 of 61 PageID #:1519
¶ 53. The IDOC rejected Gustafsen’s second bid for a host site because his aunt occasionally had her young grandchildren visit her home. Id. ¶ 54. Outside of his mother and aunt, Gustafsen has no family or friends who are willing and able to help him find hosing. Id. ¶ 56. For his part, Gustafsen has no resources to pay for his own housing. Id. ¶ 60. Gustafsen submitted a grievance to the PRB but never received a response. Id. ¶ 62.2
J.D. Lindenmeier J.D. Lindenmeier is presently incarcerated at Taylorville Correctional Center. Id. ¶ 63. In 2006, a court sentenced him to six years’ imprisonment (at 85%) after it convicted him of one count of predatory criminal assault of a child. Id. An MSR term of three years to life accompanied Lindenmeier’s sentence. Id. The PRB approved Lindenmeier for release in July 2011. Id. Lindenmeier submitted the addresses of all his family members and friends, but the IDOC denied all of them. Id. ¶ 64. The Department denied Lindenmeier’s father’s residence because it was within 150 feet of a park with a playground area. Id. ¶ 65. It rejected Lindenmeier’s mother’s home due to the presence of computers, smartphones, and weapons in the home. Id. The IDOC denied his sister’s home because she has two children living with her and it is within 500 feet of a daycare. Id. The Department rejected Lindenmeier’s father’s girlfriend’s home because it was within 500 feet of a park with a playground area. Id. The IDOC denied another friend’s residence as a host site because it was within 500 feet of a daycare. Id.
2 The defendants indicated in their reply brief that the IDOC released Gustafsen to an approved host site in Urbana in February 2019. (Dkt. 127 at 24.)
Page 14 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 15 of 61 PageID #:1520
Lindenmeier wrote numerous halfway houses and all of them rejected him. Id. ¶ 67. He also investigated the possibility of work release, but an IDOC counselor advised him that applying would be futile considering his sex offender status. Id. ¶ 68. On his own, Lindenmier has no money to look for or pay for housing. Id. ¶ 69. Beyond himself and the family and friends he tried to work with, Lindenmeier has no other family members or friends who can help him. Id. ¶ 70. Lindenmeier is unmarried, has no children, his family cannot afford to put him up somewhere, and they cannot move their home to assist him either. Id. Lindenmeier submitted a grievance but the IDOC officials at Taylorville responded that it was out of their purview. Id. ¶ 71. He resubmitted the grievance to Springfield, but those officials retorted that it was not a Parole Board issue. Id.
Stanley Meyer Stanley Meyer is currently incarcerated at Taylorville Correctional Center. Id. ¶ 71. In 2008, a court convicted him of one count of criminal sexual assault and accordingly sentenced him to a 48-month term of imprisonment (at 85%) with an MSR term of three years to life. Id. ¶ 72. The PRB approved Meyer for release in July 2011. Id. ¶ 73. Meyer cannot support himself financially, and he has little to no contact with his family, who are unwilling or unable to help him. Id. ¶¶ 74–75. As his release date approached back in 2011, Meyer applied to numerous halfway houses, but they all rejected him. Id. ¶ 76. Meyer sought aid from other family and friends to no avail. Id. ¶ 77.
Page 15 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 16 of 61 PageID #:1521
While incarcerated, Meyer has met with the PRB on several occasions. Id. ¶ 78. The meetings generally last two to three minutes because Meyer does not have any addresses he can submit for approval. Id. One official indicated multiple times that he would examine Meyer’s situation, however the circumstances remain unchanged to date. Id. When Meyer’s MSR term began, the head of counselors informed him that he would only remain incarcerated for two years after receiving the violation for lack of a suitable host site. Id. ¶ 79. Meyer is now in his seventh year of incarceration past his original release date in December 2011. Id. ¶ 80.
Cinszeo Doss Cinszeo Doss is presently imprisoned at Graham Correctional Center. Id. ¶ 84. In 2009, a court sentenced him to 54 months (at 85%) after he pleaded guilty to one count of criminal sexual assault. Id. While serving his time, Doss learned that his sentence included an MSR term of three years to life. Id. Upon his release in 2012, Doss procured a residence with the help of his mother. Id. ¶ 85. Two years later, he had two jobs and multiple trade certificates from Kennedy King College. Id. A few years after his release, correctional staff informed him that his residence was no longer in compliance with the conditions of his MSR because another sex offender moved in nearby. Id. ¶ 86. The defendants contend that they gave Doss multiple extensions to find another host site during this time, and indeed, Doss’s parole agent approved five different sites. Id. Once reincarcerated, Doss submitted additional host sites that the IDOC ultimately denied. Id. ¶ 87. The Department denied several of them because they were
Page 16 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 17 of 61 PageID #:1522
within 500 feet of one or more licensed day care centers, and another because it was just over 500 feet from an elementary school (and on a school route for children). Id. The agent was concerned about that specific address because Doss’s offense was against a 13-year-old girl. Id. Later, the IDOC denied Doss’s host sites because a day care center and play lot were within 500 feet of one, and there was a minor child living in the other (in addition to computers). Id. ¶ 88. The IDOC denied another host site after Doss’s parole agent spoke with the landlord, after which the landlord stated that Doss’s mother lied to her about Doss’s status, instead telling her Doss was not a sex offender. Id. ¶ 89. She then concluded that she did not want any felons on her property and the placement fell through. Id. Doss’s family has made multiple trips to a parole office to advocate for him, and the plaintiffs allege that Doss’s family is consistently met with aggression. Id. ¶ 90.3
Charles Dobson Charles Dobson is currently incarcerated at Taylorville Correctional Center. Id. ¶ 91. In 2008, a court sentenced him to ten years’ imprisonment (at 85%) after convicting him of aggravated criminal sexual abuse and predatory criminal sexual assault. Id. Dobson’s MSR term is now three years to life, though it was not always so. Id. Dobson has no financial resources of his own that he can use to pay for housing. Id. ¶ 92. He has tried to find an appropriate host site but has not had any luck. Id. ¶ 93. The IDOC rejected his father’s home because it is directly adjacent to a wooded park operated by the local park district, not to mention the fact that the
3 The defendants noted in their reply brief that the IDOC released Doss in February 2019. (Dkt. 127 at 24.)
Page 17 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 18 of 61 PageID #:1523
village refused to register Dobson at that address. Id. The parole agent was ready to approve the address upon receipt of a letter from the police department permitting Dobson to live there. Id. But, even after the agent followed up a second time, the department never provided the letter. Id. The IDOC denied another host site because it was 121 feet from a park that includes a playground. Id. ¶ 94.
In considering an additional placement, the Department rejected it because another sex offender lived in the building next to it and the same person owned both buildings. Id. The IDOC, for its part, interprets the statutory restriction on residing in the same “condominium complex or apartment complex” as another sex offender to mean that only one sex offender may live amongst adjoining properties owned by the same person or business. Id. Dobson also reached out to multiple transitional housing organizations but heard back that they cannot help sex offenders in Illinois. Id. ¶ 95.
Alfred Aukema Alfred Aukema is presently imprisoned at Taylorville Correctional Center. Id. ¶ 97. In 2012, a court sentenced him to a five-year term of imprisonment (at 85%) after convicting him of criminal sexual assault with the use of force. Id. Aukema additionally received an MSR term of three years to life. Id. Since September 2017, Aukema has been eligible for release. Id. Aukema has no spouse and no money to his name. Id. ¶ 98. Aukema made three attempts to obtain a proper host site; all three failed. Id. ¶ 99. The IDOC denied the first address because the first owner is currently incarcerated at Taylorville. Id. It denied the second address, in a trailer
Page 18 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 19 of 61 PageID #:1524
park, because another sex offender lived in a different unit on the other side of the park. Id.
Using its restrictions, the California Department of Corrections denied the third address because his aunt’s grandchildren visited her there and firearms were on the property. Id. Aukema has been otherwise unsuccessful in his search, due in part to the fact that halfway houses, religious organizations, and other third-party entities will not assist an offender with a three-to-life MSR term in Illinois. Id. ¶ 100. Aukema has no other host sites to propose. Id. ¶ 101. With that in mind, Aukema would like the Department to release him into homelessness so he can get a job while living in a shelter and save up the money for his own place. Id. Short of that, Aukemea is “‘afraid that the only way [he] will ever get out of [t]here is if [he] die[s].’” Id. ¶ 102.
Jonathan Sparks Jonathan Sparks is currently incarcerated at Big Muddy River Correctional Center. Id. ¶ 103. A court convicted him of criminal sexual assault and sentenced him to four years imprisonment with an MSR term of three years to life in 2010. Id. Sparks became eligible to serve his MSR term in July 2013. Id. ¶ 104. Because Sparks is single and has no real assets, he has no way of paying for housing. Id. ¶ 105. He additionally has no family or friends in Illinois to help him. Id. ¶ 106. For that reason, Sparks has tried to utilize the Interstate Compact, but authorities have denied each of his proposed host sites. Id.
Page 19 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 20 of 61 PageID #:1525
For instance, the Colorado Department of Corrections denied his father’s home because of “unsafe living conditions,” neglecting to explain that conclusion any further. Id. The Nebraska Department of Corrections denied his mother’s home because Sparks’ uncle, another sex offender, lives there. Id. Finally, the California Department of Corrections rejected his uncle’s home because it was about 400 feet away from a school. Id. Sparks also contacted a mission for assistance, but it refused to aid. Id. ¶ 107. When the Illinois Department of Corrections attempted to place him at a different ministry, Sparks turned the Department down. Id. With nobody else to turn to, Sparks fears he will be trapped in prison for the rest of his life. Id. ¶ 108.
Christopher Korszlak Christopher Korszlak is presently imprisoned at Robinson Correctional Center. Id. ¶ 109. In 2014, a court convicted him of possession of child pornography (class 2) and accordingly sentenced him to six years (at 50%) in prison. Id. Korszlak’s sentenced includes an MSR term of three years to life, which he has been eligible to serve since October 2015. Id. Korszlak is divorced and has no assets or savings. Id. ¶ 110. Korszlak, for his part, has proposed one host site, which the IDOC denied due to “unsafe conditions.” Id. ¶ 111. Korszlak believes the denial was due to the presence of another sex offender in another room of the hotel. Id. During his incarceration, Korszlak has reached out to every transitional housing facility or rehabilitation organization he can find in Illinois, which totals 95. Id. ¶ 112. All these institutions either ignored Korszlak or declined his requests because of his sex offender status. Id. Korszlak went even further, submitting an
Page 20 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 21 of 61 PageID #:1526
International Prisoner Transfer Request, applying for asylum, and trying to renounce his American citizenship. Id. ¶ 113. All relevant decisionmakers rejected his advances. Id.
Kevin Rogers Kevin Rogers is currently incarcerated at Robinson Correctional Center. Id. ¶ 115. A court convicted him of criminal sexual assault and therefore sentenced him to ten years’ imprisonment (at 85%) in 2008. Id. Rogers has been eligible to serve his MSR term on the outside since February 2018. Id. Rogers is single and has no savings or substantial assets. Id. ¶ 116. Rogers has attempted to secure a compliant host site but has not been successful. Id. ¶ 117. The IDOC denied his mother’s home because it was 325 feet from a park. Id. It rejected another address because Rogers’ victim—the host’s daughter—frequents the home, in addition to the following facts: the host refused to allow the agent to enter the home, there was no landline phone, and the host site was a health hazard. Id. The Department denied Rogers’ girlfriend’s home because there were children’s toys there and the agent advised the host that the home could be approved after the host removed them. Id. The IDOC denied Rogers’ friend’s home because there were firearms in the house that the host was unwilling to remove, the host’s five-month-old granddaughter frequently visited the home, the host had a smart phone, and Rogers failed to divulge to the host that he was a sex offender. Id. Finally, the Missouri Department of Corrections rejected his discretionary transfer. Id. Rogers’ counselor informed him that there are no halfway houses in Illinois that accept
Page 21 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 22 of 61 PageID #:1527
sex offenders on MSR. Id. ¶ 118. Still, Rogers has reached out to many organizations but has never received a response. Id. Different treatment centers denied him, too. Id. Rogers has no friends that can help through this process. Id. ¶ 119.
John Michael Cichon John Michael Cichon is presently imprisoned at Graham Correctional Center. Id. ¶ 120. In 2011, a court convicted him of child pornography and sentenced him to 180 days’ incarceration and two years of probation. Id. A court revoked that sentence in 2012 and sentenced him to four years in the IDOC with a two-year MSR term. Id. That MSR term later changed to three years to life, which Cichon has been eligible to serve since November 2013. Id. Cichon has little to no savings and income. Id. ¶ 121. He has not submitted potential addresses for host sites because he is certain that the Department will deny all of them due to the presence of children or internet access. Id. ¶ 122. Cichon attempted to secure apartment leases on his own, but an IDOC agent informed him that he is not able to enter into leases or contracts on his own behalf during his incarceration. Id. ¶ 123. In other words, someone else must lease the apartment or home for him. Id. Of the several halfway houses he and his family contacted, none are open to sex offenders. Id. ¶ 124. Antoine Darnell Lamb Antoine Darnell Lamb is currently incarcerated at Taylorville Correctional Center. Id. ¶ 125. A court convicted him of criminal sexual assault with the use of force in 2010 and then sentenced him to seven years’ imprisonment with an MSR term of three years to life. Id. Lamb became eligible for MSR in April 2015. Id.
Page 22 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 23 of 61 PageID #:1528
Lamb has no assets or money to his name. Id. ¶ 126. Lamb tried to submit a handful of addresses, but the IDOC denied all of them. Id. ¶ 127. The Department rejected the first because of two day care centers and a park within 500 feet of the address; the second because there was another registered child sex offender living there; the third because there was a licensed day care center within 500 feet of the proposed site; the fourth the Iowa Department of Corrections denied because it violated Iowa’s 2,000-foot restriction; and the fifth the Illinois DOC rejected because its owner is a child sex offender and it was also within 500 feet of a licensed day care center. Id. Lamb has no family or friends that can help him. Id. Lamb has been unable to find any halfway houses, religious organizations, or support groups to house him. Id. ¶ 128.
Nicole Juanita Uhlir Nicole Juanita Uhlir is presently imprisoned at Logan Correctional Center. Id. ¶ 129. In 2006, a court convicted her of predatory criminal sexual assault and sentenced her to six years’ (at 85%) incarceration with a three-to-life MSR term. Id. Although Uhlir has served MSR terms twice, she has violated the rules both times. Id. Uhlir is single and has little to no income, leaving her with no way to pay for her own housing. Id. ¶ 130. Uhlir was initially residing with a friend while on MSR, but the IDOC now deems that address unsuitable for her. Id. ¶ 131. Her parole agent has never explained to Uhlir why the home is noncompliant. Id. According to the Department, Uhlir’s friend allowed her to violate the rules by making prohibited items, including a smartphone, available to her. Id. The IDOC denied the other
Page 23 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 24 of 61 PageID #:1529
address Uhlir submitted because there is a soccer field within 195 feet of the site. Id. ¶ 132. Uhlir has no family or friends to turn to and stated that she felt indefinitely trapped. Id. ¶ 133. The IDOC released Uhlir in December 2018 and has required her to wear a GPS ankle monitor in addition to the “beacon” device in her home. (Dkt. 108 ¶ 143.) GPS Monitoring
Wisconsin, unlike Illinois, provides parole agents with directions about how to supervise and manage homeless sex offenders. Id. ¶136. The Wisconsin DOC subjects homeless parolees to special restrictions, including GPS monitoring. Id. ¶ 137. Under that restriction, the individuals on release must “‘remain in the county of supervision, unless an exception is granted for employment, offense related programming, or other pre-approved activities.’” Id. They also “‘must call and speak with the [parole] agent at least once every seven days, on a weekday, to report . . . the location(s) in the city where he/she has been frequenting and sleeping for the past seven days and plans to frequent/or sleep for the next seven days.’” Id.
The Illinois DOC, for its part, has been using GPS to monitor people on MSR for more than ten years. Id. ¶ 138. The system tracks offenders’ whereabouts, their movement, how long they remain in any location, and the precise time of their movement. Id. ¶ 139. It additionally sends parole agents an immediate alert when a parolee enters an exclusion zone—somewhere the agent does not permit the person to be—or an inclusion zone, wherever the agent specifies that the offender should be at a specific time, like a job or appointment. Id. The agent can use a computer to see
Page 24 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 25 of 61 PageID #:1530
where the offender is at any given time and review stored location data. Id. The parties dispute whether GPS and electronic monitoring are duplicative of each other and truly necessary (for example, to monitor a parolee when he or she is home). (Dkt. 107 ¶ 19.) The parties further dispute whether a well-used GPS monitoring system is enough standing alone to monitor homeless sex offenders, or whether additional parole agents and resources are necessary. Id. ¶ 21.
The defendants’ representative testified that using this GPS system to track sex offenders is “‘not a good fit.’” (Dkt. 88 ¶ 140.) He also stated that using GPS to monitor these individuals would be a “‘huge public safety risk’” because the offender would not have a defined place to be or a purpose for his or her actions, defeating the purpose of MSR. Id. The witness asserted being homeless would place a sex offender at greater risk of being blamed for other crimes. Id. That said, the IDOC releases other convicted felons (including murderers and violent criminals) into homelessness to serve their MSR terms so long as they do not have electronic monitoring as a condition of that term. Id. ¶ 141; Dkt. 107 ¶ 18. The witness did not identify any problems supervising those parolees. Dkt. 107 ¶ 18.
There are examples in the record of the IDOC’s use of GPS to monitor sex offenders. For instance, a court convicted Jason Tucker of predatory criminal sexual assault in 2011 and sentenced him to seven years in prison (at 85%), plus an MSR term of three years to life. (Dkt. 128 ¶ 143.) Since moving from prison to MSR in 2017, the IDOC has always required Tucker to wear a GPS ankle monitor. Id. Taking another example, Nicole Uhlir is currently on MSR for predatory criminal sexual
Page 25 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 26 of 61 PageID #:1531
assault of a child, and she wears a GPS ankle monitor on top of the “beacon” device in her home. Id. ¶ 144.
Further illustrations abound, including Jennifer Tyree, Michael DiMichele, Bill Carney, and Robin Frazier, all sex offenders who the IDOC requires to wear GPS monitors. Id. ¶¶ 145–47, 149. Many also have beacon monitors in their homes. Id. ¶¶ 145–47. The technology allows parole agents to keep an eye on the individuals, which one time prompted Tyree’s agent to ask her why she stopped at a Steak and Shake on her way home from work. Id. ¶ 145. DiMichele’s ankle monitor tells him whenever he enters a prohibited location or violates his approved movement. Id. ¶ 146.
According to the defendants, the goals of sex offender supervision, include “‘risk management,’ ‘prevent[ing] future victimization,’ and reduc[ing] recidivism,’ as well as ‘providing effective treatment for sex offenders’ and ‘provid[ing] opportunities for successful reintegration of the individual into the community and family.’” Dkt. 88 ¶ 142. The average cost to the State of supervising a parolee on release in the community is approximately $2,000/year, compared to $26,365/year to incarcerate a person. Id. ¶¶ 134–35.
STANDARD OF REVIEW Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see, e.g., Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473, 485 (7th Cir. 2019). The parties genuinely dispute a material fact when “‘the evidence
Page 26 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 27 of 61 PageID #:1532
is such that a reasonable jury could return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d 606, 609–10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Rule 56 ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” Zander v. Orlich, 907 F.3d 956, 959 (7th Cir. 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In reviewing cross-motions for summary judgment, the Court “‘construe[s] all inferences in favor of the party against whom the motion under consideration is made.’” Med. Protective Co. of Fort Wayne, Indiana v. Am. Int’l Specialty Lines Ins. Co., 911 F.3d 438, 445 (7th Cir. 2018), reh’g denied (Jan. 29, 2019) (quoting Schlaf v. Safeguard Prop., LLC, 899 F.3d 459, 465 (7th Cir. 2018)).
ANALYSIS The plaintiff class members moved for summary judgment on four grounds, arguing that the challenged scheme violates: (1) substantive due process (Count I); (2) equal protection (Count II); (3) procedural due process (Count III); and (4) the Eighth Amendment (Count IV). Before diving into the merits of these constitutional claims, the parties briefed two preliminary issues that must be addressed: first, whether a petition for a writ of habeas corpus or an independent civil rights suit under 42 U.S.C. § 1983 is the proper vehicle; and second, whether the Court should apply strict scrutiny or rational basis review in its evaluation of the claims.
Page 27 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 28 of 61 PageID #:1533
I. § 1983 vs. § 2254 Starting with the vehicle question, the defendants argue that the plaintiffs
must raise their constitutional claims in individual habeas corpus petitions. The defendants contended as much when they moved to dismiss, and the Court denied their motion on this ground. (Dkt. 31 at 10–13.) In so ruling, the Court reasoned that “Plaintiffs do not claim ‘entitlement’ to parole or MSR. Plaintiffs claim entitlement to a constitutional process in determining whether they will be released on MSR, not to release on MSR . . . Plaintiffs do not claim a right to release but instead that officials are using unconstitutional rules.” Id. at 13. The defendants invited reconsideration of this ruling on their motion for summary judgment; the Court again rejects their advance.
As understood earlier, the plaintiffs’ case is about fair procedure and not release from incarceration, although as a remedial matter they might end up there. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in [his] favor . . . would necessarily imply the invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S. 477, 487 (1994); see Morgan v. Schott, 914 F.3d 1115, 1117, 1121 (7th Cir. 2019). Here, the plaintiffs are neither challenging their sex-crimes convictions nor their sentences, which include their MSR terms of three years to life. Put a little differently, the plaintiffs do not seek to invalidate the fact or duration of their confinement. Rather, they seek to change the processes used in determining the penultimate condition of their confinement—location.
Page 28 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 29 of 61 PageID #:1534
In Wilkinson v. Dotson, the Supreme Court held that a civil rights plaintiff may seek a constitutional change in the parole procedures used to adjudicate his confinement status. 544 U.S. 74, 82 (2005). The Court reasoned that, because neither prisoner sought an injunction ordering his immediate or speedier release into the community, a remedy in their favor would mean at most new eligibility for review. Id. That might have sped up the consideration of their release, but it did not automatically follow that that the inmates would in fact be released. Id. The Court analyzed Heck’s use of the word “sentence” to mean not prison procedures, but “substantive determinations as to the length of confinement.” Id. at 83. That led to the conclusion that prisoners may bring § 1983 challenges to prison administrative decisions. Id. at 84.
The Seventh Circuit has followed suit. See Henderson v. Bryant, 606 F. App’x 301, 304 (7th Cir. 2015); Burd v. Sessler, 702 F.3d 429, 433 (7th Cir. 2012); Adams v. Bledsoe, 173 F. App’x 483, 484 (7th Cir. 2006); Bunn v. Conley, 309 F.3d 1002, 1007– 08 (7th Cir. 2002); Isby v. Newkirk, 105 F.3d 660, at *1 (7th Cir. 1996) (nonprecedential disposition); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 138–39 (7th Cir. 1995). It is the defendants’ position that the plaintiffs are challenging a condition of their confinement because they are “seeking a different program or location or environment,” turning the question into whether what they ask for amounts to a “quantum change in the level of custody.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). Beginning in Graham, the Court of Appeals recognized that “[t]he difficult intermediate case is where the prisoner is seeking not earlier freedom, but transfer from a
Page 29 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 30 of 61 PageID #:1535
more to a less restrictive form of custody.” Id. The critical distinction from that workrelease case to this one is that here, unlike there, the plaintiffs are not claiming entitlement to release. See id.
Instead, the plaintiffs in this case dispute the procedures used in host site review. As in Richmond v. Scibana, the wrong perspective to take is “to . . . question whether differences between . . . prison . . . and community confinement are sufficiently great that [the plaintiffs] can be deemed to challenge the fact of custody, rather than simply conditions of confinement acknowledged to be lawful.” 387 F.3d 602, 605 (7th Cir. 2004) (citations omitted). A favorable result for the plaintiffs in this litigation would not entitle them:
to any change in the duration or even the location of [their] confinement. A judge could do no more than determine the extent of the [Department’s] discretion to make placement decisions; the substance of any eventual decision is not at issue. Parole litigation supplies a helpful analogy: a prisoner claiming a right to release on parole must use § 2241 (or § 2254 for a state prisoner); but a prisoner claiming that parole officials are apt to use incorrect rules when resolving a future application must use the APA (or 42 U.S.C. § 1983 for a state prisoner). Id. (citing White v. Henman, 977 F.2d 292 (7th Cir. 1992); Clark v. Thompson, 960 F.2d 663 (7th Cir. 1992); Walker v. Prisoner Review Board, 694 F.2d 499 (7th Cir. 1982)). The statutory scheme here “in no way affects the duration, much less the fact, of confinement. [Their] supervised release will still be in place, and it will last just as long.” Bunn, 309 F.3d at 1008. Accordingly, a straightforward application of Richmond carries the day. “[A] challenge to rules that affect placement in community confinement [shall be treated] the same way as rules that affect placement in parole
Page 30 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 31 of 61 PageID #:1536
systems.” Richmond, 387 F.3d at 606. The defendants were wrong to frame the question as prison versus supervised release, but even if they were right, the plaintiffs’ claims nonetheless land in § 1983’s net. See Moran v. Sondalle, 218 F.3d 647, 650, 652 (7th Cir. 2000) (explaining that prisoners who do not demand early release and alternatively contest the procedures used to make those determinations must use § 1983 as their vehicle of choice). The plaintiffs have been consistent since day one in not directly requesting release but asking for a constitutional application of the relevant law and policy to their situations. (Dkt. 1 at 27–29, 33–34.) Thus, the plaintiffs properly brought their claims under § 1983. II. Scrutiny
The parties next disagree on which level of judicial scrutiny governs the plaintiffs’ constitutional claims. On the one hand, the defendants argue that the Court should apply Turner v. Safley, which holds that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. 78, 89 (1987). On the other hand, the plaintiffs contend that Johnson v. California controls, which refused to extend Turner to a racial segregation policy in the prison context because strict scrutiny applies to all racial classifications. 543 U.S. 499, 515 (2005). Because the plaintiffs here are in effect asserting their rights as releasees and not prisoners, the question becomes whether Turner extends from prison administration to the supervised release apparatus.
Page 31 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 32 of 61 PageID #:1537
Although circuit precedent is scant, the Court of Appeals has touched on the issue in two separate decisions. First, in Felce v. Fiedler, the court considered a Wisconsin inmate’s procedural due process challenge to the parole committee’s decision to condition his release on the receipt of antipsychotic drug injections. See 974 F.2d 1484, 1486–88 (7th Cir. 1992). Recognizing that it was analyzing a parole situation and not a prison situation, the court did not doubt that Turner’s standard applied. See id. at 1494. To be sure, Turner was a substantive due process case, however that did not affect the Felce court’s evaluation of the procedural due process claim alleged by the prisoner there. Second, in Williams v. Wisconsin, the court in passing hinted that Turner’s recognition of prisoners’ fundamental right to marry would necessarily extend to parolees and thus the state may only limit it for sound penological reasons. See 336 F.3d 576, 582 (7th Cir. 2003). It just so happens that, in Williams, no one had forbidden the parolee from marrying; instead, the state had affected the timing and location of his plans. See id. So, although Turner was relevant, it was not dispositive.
This seeming extension of Turner from prison to parole makes sense in view of the Supreme Court’s admonition that the Turner test applies whenever constitutional rights and prison administration butt up against one another. In Washington v. Harper, the Court explained that:
These two principles apply in all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those in which the prisoner invokes the First Amendment. We made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights.
Page 32 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 33 of 61 PageID #:1538
494 U.S. 210, 224 (1990) (citations omitted) (emphasis added); see Russell v. Richards, 384 F.3d 444, 447 (7th Cir. 2004).
Johnson v. California, then, does not get the plaintiffs home. In that case, the Supreme Court declined to expand Turner to cover racial classifications, reasoning that it applies the reasonable-relationship test “only to rights that are ‘inconsistent with proper incarceration.’” 543 U.S. 499, 510 (2005) (emphasis in original) (quoting Overton v. Bazzetta, 539 U.S. 126, 131 (2003); then citing Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system”)). The Court clarified that “certain privileges and rights must necessarily be limited in the prison context.” Id. (citations omitted). That is why Turner does so much work in First Amendment cases, and relevant here, with some due process claims. See id. Racial discrimination is of an entirely different mold because eradicating it is consistent with appropriate prison management and therefore need not be undermined in that context.
In this case, however, the liberty interests that the plaintiffs allege the defendants are depriving them of are “susceptible to the logic of Turner . . . because [they are] . . . right[s] that need necessarily be compromised for the sake of proper prison administration.” Id. at 510. The whole point of the varying forms of custody at issue in these cases—incarceration, parole, probation, supervised release—is to restrict the liberty of individuals convicted of crimes. Custody determinations, to the extent they fall within the ambit of the Fourteenth Amendment, come under the scope of Turner
Page 33 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 34 of 61 PageID #:1539
because they lie at the core of running a correctional system. Cf. Jones v. Walker, 358 F. App’x 708, 711 (7th Cir. 2009) (choosing not to use Johnson for allegations of racial segregation that result from facially neutral prison safety policies); McClain v. Rogers, 155 F. App’x 918, 920 (7th Cir. 2005) (same).
That said, the Court was explicit in Johnson that it has “not used Turner to evaluate Eighth Amendment claims of cruel and unusual punishment in prison. We judge violations of that Amendment under the ‘deliberate indifference’ standard, rather than Turner’s “reasonably related” standard.” 543 U.S. at 511 (citing Hope v. Pelzer, 536 U.S. 730, 738 (2002) (quoting source omitted)). The Court stated this was “because the integrity of the criminal justice system depends on full compliance with the Eighth Amendment.” Id. (citing Spain v. Procunier, 600 F.2d 189, 193–94 (9th Cir. 1979) (Kennedy, J.)); see Norwood v. Vance, 591 F.3d 1062, 1074 (9th Cir. 2010).
Implementing these rules here streamlines the foregoing discussion of standard of review: The Court will use Turner to assess the plaintiffs’ procedural due process (e.g. Felce) and equal protection claims but not their Eighth Amendment claim. With respect to the class members’ substantive due process claim, however, the Court concludes that it is duplicative of the Eighth Amendment claim. Both constitutional provisions regulate the government’s authority to confine a person, they just come into play at different times. For instance, the Fourteenth Amendment covers pretrial detainees, while the Eighth Amendment houses posttrial convicts. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015) (citations omitted).
Page 34 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 35 of 61 PageID #:1540
Although it is uncertain “which amendment controls for hybrid forms of detention, . . . the Eighth Amendment standard . . . is at least as difficult for a plaintiff to satisfy as the Fourteenth Amendment standard.” Estate of Clark v. Walker, 865 F.3d 544, 546 n.1 (7th Cir. 2017), cert. denied, 138 S. Ct. 1285 (2018) (concerning extended supervision in Wisconsin) (citing Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003) (“as a pretrial detainee, [plaintiff] was entitled to at least the same protection against deliberate indifference to his basic needs as is available to convicted prisoners under the Eighth Amendment ”) (additional source omitted)); see, e.g., Miller v. City of Columbus, No. 2:05-CV-425, 2007 WL 915180, at *10 (S.D. Ohio Mar. 26, 2007) (collecting cases that used the Fourth Amendment’s objective reasonableness standard to evaluate parolee/releasee’s excessive force claims).
Both the Eighth Amendment and Fourteenth Amendment claims get at the same issue: whether the state unconstitutionally deprived the plaintiffs of their liberty by keeping them in prison, instead of supervising them on release, because they are indigent and homeless. This is a total conceptual overlap, and one the Seventh Circuit appears to treat as governed by the Eighth Amendment. See Courtney v. Butler, No. 17-3310, 2019 WL 718888, at *1 (7th Cir. Feb. 13, 2019); Willis v. Ross, 745 F. App’x 629, 631 (7th Cir. 2018); Turner v. Godinez, 693 F. App’x 449, 454 (7th Cir. 2017); Aguilar v. Gaston-Camara, 861 F.3d 626, 631–33 (7th Cir. 2017); Werner v. Wall, 836 F.3d 751, 760–61 & n.25 (7th Cir. 2016) (reviewing the case law); Figgs v. Dawson, 829 F.3d 895, 906 (7th Cir. 2016); Perrault v. Wisconsin Dep’t of Corr., 669 F. App'x 302, 303 (7th Cir. 2016); Childress v. Walker, 787 F.3d 433, 438 (7th Cir.
Page 35 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 36 of 61 PageID #:1541
2015); Armato v. Grounds, 766 F.3d 713, 721 (7th Cir. 2014); Jones v. Skalski, 494 F. App’x 667, 670 (7th Cir. 2012); Schneider v. Cty. of Will, 366 F. App’x 683, 685 (7th Cir. 2010); Burke v. Johnston, 452 F.3d 665, 669 (7th Cir. 2006); Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001).
Keeping that in mind, the Court heeds the Justices’ admonition that “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)); see Graham, 490 U.S. at 395 n.10 (“After conviction, the Eighth Amendment ‘serves as the primary source of substantive protection . . . Any protection that ‘substantive due process’ affords convicted prisoners against excessive force is, we have held, at best redundant of that provided by the Eighth Amendment.”) (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Because of this analytical redundancy, the Court will proceed under the Eighth Amendment and not the Fourteenth. II. Equal Protection (Count II)
The Equal Protection Clause of the Fourteenth Amendment prohibits the government from treating similarly situated persons differently. “Prisoners do not surrender their rights to equal protection at the prison gate. Unequal treatment among inmates, however, is justified if it bears a rational relation to legitimate penal interest.” Williams v. Lane, 851 F.2d 867, 881 (7th Cir. 1988) (citing Hudson v. Palmer,
Page 36 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 37 of 61 PageID #:1542
468 U.S. 517, 522–23 (1984)); see Kramer v. Pollard, 497 F. App’x 639, 642–43 (7th Cir. 2012); Stojanovic v. Humphreys, 309 F. App’x 48, 52 (7th Cir. 2009) (“Prisoners retain their right to equal protection”); Aruanno v. Corzine, 687 F. App’x 226, 230 (3d Cir. 2017), cert. dismissed sub nom. Aruanno v. Christie, 138 S. Ct. 235 (2017); Harrington v. Scribner, 785 F.3d 1299, 1308 (9th Cir. 2015) (noting penological interests still factor into the analysis of an equal protection claim).
The Seventh Circuit has consistently applied the Equal Protection Clause to varying custodial levels in the correctional context. See, e.g., Taylor v. Edgar, 52 F. App’x 825, 826–27 (7th Cir. 2002); May v. Sheahan, 226 F.3d 876, 882–83 (7th Cir. 2000); Beatty v. DeBruyn, 77 F.3d 484 (7th Cir. 1996); Hatch v. Sharp, 919 F.2d 1266, 1268–69 (7th Cir. 1990); Doyle v. Elsea, 658 F.2d 512, 517–19 (7th Cir. 1981); Faye v. Gray, 541 F.2d 665, 667–68 (7th Cir. 1976). While a prisoner’s indigence does not generally call for equal protection analysis, the Supreme Court has at least twice invalidated facially neutral criminal laws that authorized the detention of poor individuals because of their indigence. See Tate v. Short, 401 U.S. 395, 397–99 (1971); Williams v. Illinois, 399 U.S. 235, 241–42 (1970); see also ODonnell v. Harris Cty., 892 F.3d 147, 161–62 (5th Cir. 2018); Walker v. City of Calhoun, GA, 901 F.3d 1245, 1259–60 (11th Cir. 2018) (analyzing equal protection claim of pretrial indigent detainees).
The plaintiffs argue that the defendants are denying them equal protection of the law because, but for their indigency, the plaintiffs would be able to pay for their own housing and serve their MSR terms in the community. In other words, the
Page 37 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 38 of 61 PageID #:1543
statutory and regulatory scheme as-applied to sex offenders with three-to-life MSR terms treats those who are wealthy different from those who are poor. The defendants contend that they are not requiring the plaintiffs to pay for anything (like a fine) to secure their release. Ultimately, assert the defendants, the IDOC’s requirement that sex offenders have a stable host site is rationally related to protecting the public, especially children.
Contrary to the defendants’ statements, the proper way to frame the question is as follows: whether indigent sex-offense releasees in Illinois remain incarcerated when similarly situated wealthy sex-offense releasees are not solely because the indigent releasees cannot afford to pay for housing outside of prison. See State v. Adams, 91 So. 3d 724, 741–42 (Ala. Crim. App. 2010) (scrutinizing homeless and indigent offenders’ as-applied challenge to entire statutory scheme that required an adult criminal sex offender to provide the state DOC with the address where he will reside upon release at least 45 days prior to the offender’s release from custody); see generally, e.g., McGinnis v. Royster, 410 U.S. 263 (1973) (considering as-applied challenge to entire statutory scheme and focusing on those prisoners unable to afford bail). The state’s treatment of the indigent and the non-indigent must be categorically different, and indeed, worse. See Walker, 901 F.3d at 12560.
Here, those sex offenders who are indigent and homeless continue to be incarcerated upon completion of their court-ordered terms of imprisonment, while those sex offenders who are neither indigent nor homeless are released into the community. This application of the statutory scheme discriminates against the plaintiffs because
Page 38 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 39 of 61 PageID #:1544
of their poverty. The undisputed record demonstrates that the class members are adult criminal sex offenders who have completed their terms of imprisonment and attempted to comply with the requirements imposed upon them in securing a host site. Because they are indigent and homeless, however, the plaintiffs have been— and still are—incapable of doing so. The fact that the defendants are not requiring the plaintiffs to pay them via a fine, but rather a third-party (potentially a landlord), is entirely beside the point because the defendants still require the defendants to have money and financial support to get out of prison.
By way of example, J.D. Lindenmeier completed the term of incarceration that the trial court ordered him to serve for the commission of his original sex crime (one count of predatory criminal assault of a child) in 2011, which is when the PRB approved him for release. (Dkt. 91 ¶ 63.) His continued imprisonment is not the result of the underlying offense but is instead the consequence of his indigency, homelessness, and the attendant powerlessness to procure housing that will satisfy the IDOC. Id. ¶¶ 69–70. Lindenmeier’s incarceration, then, is for reasons completely beyond his control. Looking at another instance, Stanley Meyer completed his term of imprisonment for his original sex crime (one count of criminal sexual assault) in 2011, when the PRB approved him for release. Id. ¶¶ 71–73. He, too, remains incarcerated—not as a consequence of the underlying offense but because he is indigent and homeless, leaving him unable to identify a host site. Id. ¶¶ 74–75.
On its face, the statutes and regulations equally apply to all convicted sex offenders by mandating a stable host site that satisfies all associated requirements.
Page 39 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 40 of 61 PageID #:1545
The scheme does not facially classify offenders, and upon completion of the courtordered term of imprisonment, all sex offenders can theoretically regain their liberty by providing an address that meets all obligations. As applied, however, the opportunity for an indigent and homeless sex offender to procure release from confinement following completion of incarceration is virtually nonexistent. As the undisputed and material evidence demonstrates, only those sex offenders with access to funds to pay for their own accommodations at an approved location will be free from incarceration.
Indigents without the resources to pay for lodging will remain in prison indefinitely. Id. ¶ 38 (“‘Q: Is it possible for a sex offender with an indeterminate MSR term who, A, does not have money to pay for his own housing, and, B, does not have family or friends on the outside who can pay for his housing [whether by living with them or paying for separate accommodations] to ever get out of the Illinois Department of Corrections? A: Never say never, but, . . . using those criteria, no.’”). This confinement is potentially endless for the indigent and homeless sex offender solely because he or she has no money to secure a place to stay when imprisonment ends and mandatory supervised release (supposedly) begins.
The defendants have created separate consequences for indigent, homeless sex offenders and for non-indigent, non-homeless sex offenders. Only those who have no financial resources suffer a continued deprivation of liberty following the completion of their court-ordered term of incarceration for the original sex offense. The defendants are punishing the plaintiffs for their indigency and homelessness, matters totally beyond their control. The defendants are therefore wrong to argue that the
Page 40 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 41 of 61 PageID #:1546
IDOC’s requirement that sex offenders have a stable host site (applied collectively through statute, regulation, and policy) is rationally related to protecting the public, especially children. The right pivot point in the equal protection context is whether the government’s separate and discriminatory treatment of similarly situated individuals rationally relates to a legitimate penological interest.
In this case, the defendants’ application of the laws to keep indigent and homeless sex offenders locked up (while non-indigent sex offenders roam free) has no reasonable relation to public protection. Quite the contrary, “the condition at issue here—indigency—is itself no threat to the safety or welfare of society.” Bearden v. Georgia, 461 U.S. 660, 669 n. 9 (1983). There is no meaningful penological distinction between indigent and non-indigent sex offenders: the state’s public safety objective is constant. A homeless and indigent sex offender is presumably as dangerous to the community as one who is capable of paying for his own lodging. That wraps up the first Turner factor, and turning to the others, they also weigh in favor of invalidation of this practice. See Stojanovic, 309 F. App’x at 51.
There are not alternative means of exercising the right (here, liberty) notwithstanding the policy—the defendants’ present application of the rules and regulations deprives sex offenders of their conditional liberty on mandatory supervised release. Perhaps the defendants could relax some MSR requirements that do not implicate wealth, but that is hard to imagine on the record as it stands now. Even assuming that factor tilted toward the defendants, the other two do not. The impact that accommodating the right will have on prison resources is actually a positive one. (Dkt.
Page 41 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 42 of 61 PageID #:1547
88 ¶¶ 134–35 (agreeing that the average cost to the State of supervising a parolee on release in the community is approximately $2,000/year, compared to $26,365/year to incarcerate a person).)
There are alternatives to the policy. The Court is of course aware that the intent of the Illinois Legislature, public safety, is a compelling state interest. The manner in which the defendants are administering the enacted corrective framework, however, unconstitutionally subjects indigent, homeless sex offenders to a loss of liberty for the solitary reason that they cannot afford rent. The defendants are capable of utilizing constitutional methods to effectuate the legislative purpose.
For instance, the defendants may demand that a determination be made in every case whether an offender made efforts to comply with the statute and failed to do so only because he or she was indigent. This is a process endorsed by the Supreme Court in Bearden, from which the defendants may take their cue. See 461 U.S. at 668–69, 72–73. An extension of that rule here would require the defendants to “consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the state imprison a releasee who has made sufficient bona fide efforts to pay.” Id. at 672.
Moreover, the defendants are fully capable of monitoring and tracking homeless sex offenders. The legislatures of other states have provided the statutory means to record the whereabouts of homeless sex offenders. See Adams, 91 So. 3d at 742– 44. In fact, so has Illinois:
Page 42 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 43 of 61 PageID #:1548
For purposes of this Article, the place of residence or temporary domicile is defined as any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year. Any person required to register under this Article who lacks a fixed address or temporary domicile must notify, in person, the agency of jurisdiction of his or her last known address within 3 days after ceasing to have a fixed residence.
A sex offender or sexual predator who is temporarily absent from his or her current address of registration for 3 or more days shall notify the law enforcement agency having jurisdiction of his or her current registration, including the itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address.
Any person who lacks a fixed residence must report weekly, in person, with the sheriff's office of the county in which he or she is located in an unincorporated area, or with the chief of police in the municipality in which he or she is located. The agency of jurisdiction will document each weekly registration to include all the locations where the person has stayed during the past 7 days.
730 ILCS 150/3 (emphasis added); see 730 ILCS 5/3–3–7(a)(7.7) (mandating that cer-
tain sex offenders wear an approved electronic monitoring device); 730 ILCS 5/5-8A-
3(g) (requiring some sex offenders to participate in an electronic home detention pro-
gram for at least the first two years of their indeterminate MSR terms). The Illinois
Legislature, then, anticipated and prepared for some sex offenders to be homeless.
Cf. People v. Wlecke, 2014 IL App (1st) 112467, ¶ 31 (“This court . . . recognized that
under the Act, ‘[a] person can be homeless by any normal standards and still have a
‘fixed residence’ if he or she has an occasional but predictable place to stay.’”).
For good reason, too, because in reality law enforcement supervises many
homeless sex offenders on release. See, e.g., Regains v. City of Chicago, No. 15-2444,
2019 WL 1147602, at *1–*2 (7th Cir. Mar. 13, 2019) (indicating that in a handful of
Page 43 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 44 of 61 PageID #:1549
instances the sex offender registration form used by law enforcement listed releasees’ addresses as “homeless,” and as to the type of registration, officers checked a box for “homeless weekly”); Beley v. City of Chicago, 901 F.3d 823, 824–27 (7th Cir. 2018) (same); People v. Scott, 2017 IL App (4th) 150529, ¶¶ 7–8, appeal denied, 95 N.E.3d 484 (Ill. 2018) (same).
Undisputed evidence in this record establishes that the IDOC has been using GPS technology for over ten years. (Dkt. 91 ¶ 138.) The Department already requires sex offenders on supervised release to wear a GPS ankle monitor, in addition to a location tracker installed in their homes. (Dkt. 108 ¶¶ 138–39, 143; Dkt. 128 ¶¶ 143– 47, 149.) What is more, the IDOC has no problems supervising violent releasees, including murderers, who it regularly releases into homelessness. Id. ¶ 141; Dkt. 107 ¶ 18. The technology seems to be working: one time, Jennifer Tyree’s parole agent asked her why she stopped at a Steak and Shake on her way home from work. (Dkt. 128 ¶ 145.)4
This all makes sense after considering the Legislature’s purpose in establishing mandatory supervised release: “facilitate[ing] reintegration back into society, a purpose distinct from serving time in prison.” See Round v. Lamb, 2017 IL 122271, ¶ 21 (citing 730 ILCS 5/3-3-7(a) (“indicating that the conditions of MSR ‘shall be such as the Prisoner Review Board deems necessary to assist the subject in leading a law-
4 There are disputed facts in the record concerning electronic monitoring (not to mention internet use); however, the Court views them as immaterial on summary judgment and not implicated at this stage. To be clear, that does not mean the practices are not problematic. Perhaps the defendants will need to consider easing their confining exercise of discretion on those conditions to comply with the Court’s order.
Page 44 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 45 of 61 PageID #:1550
abiding life’ and setting out a list of conditions for every parole and MSR that are designed for life outside of prison”); then citing 80th Ill. Gen. Assem., Senate Proceedings, Nov. 22, 1977, at 98-99 (statements of Senator Graham) (“discussing the legislature’s intent to reduce recidivism and the benefit of maintaining custody over offenders for a period of time after they are released from prison”)).
If the defendants continue to not release offenders who are supposed to be on mandatory supervised release, then it must demonstrate how that accomplishes the Legislature’s goal of reintegrating the offenders into the community. Because it is the People’s representatives and their intent in passing laws that matter, not the IDOC’s and certainly not state or local police. (Dkt. 91 ¶¶ 12–13 (agreeing that the IDOC essentially delegates its authority to interpret the statutes to the state and local police).) To be sure, the IDOC does not write sex offender laws, but it does apply them. See id. ¶¶ 26, 50.
In exercising the discretion the Legislature entrusted it with, the IDOC must keep in mind the Legislature’s central purpose of rehabilitation, which is evident throughout the statutory scheme. See 730 ILCS 5/3–14–2(b) (directing the IDOC to assign personnel to assist eligible individuals in preparing a parole plan and to report their efforts and findings to the PRB); 730 ILCS 5/3–14–3(1) (charging the IDOC with providing employment counseling and job placement services and empowering it to additionally assist in residential placement). The Supreme Court of Illinois has authoritatively interpreted this statute to mean that “the entity directed with assisting an inmate with finding a suitable host site for MSR placement is the Department of
Page 45 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 46 of 61 PageID #:1551
Corrections,” and that “the Department of Corrections is directed to assist inmates on MSR in finding residential placement, but is not directed to obtain residential placement for those inmates.” Cordrey v. Prisoner Review Bd., 2014 IL 117155, ¶ 24 (emphasis in original).
The Court recognizes that it has no warrant to dictate any alternative means to the defendants because it is entirely within their province to do so. The IDOC is free to develop whatever additional practices it wants to avoid the inadvertent wealth classification it has created while still satisfying the goal of public safety. The Court encourages the defendants to utilize their discretion to execute the Legislature’s purpose in a constitutional manner that does not unfairly impact the indigent, homeless sex offenders who cannot by themselves obtain a host site upon the completion of their prison terms.
Thus, the way the defendants implement the statutory scheme here creates an illegal classification based on wealth, which indefinitely deprives the class members of their liberty as a result of their incapacity to pay. Though not facially discriminatory, it is discriminatory in its application and accordingly violates the Fourteenth Amendment to the Constitution. Cf. Adams, 91 So. 3d at 742 (citing Griffin v. Illinois, 351 U.S. 12, 17 n.11 (1956)). As a final word, the Court cautions that nothing in this opinion should be construed to entitle the plaintiffs to release—immediate or otherwise. All this Court now holds is that the defendants are currently applying the statutory scheme in an unconstitutional fashion. Any question of future propriety is not before the Court and one best saved for another day. The Court grants the plaintiffs’
Page 46 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 47 of 61 PageID #:1552
motion for summary judgment (Dkt. 75) on their equal protection claim (Count II) and denies the defendants’ cross-motion (Dkt. 88). III. Procedural Due Process (Count III)
Moving to the plaintiffs’ next claim, the Due Process Clause of the Fourteenth Amendment bars the government from depriving an individual of life, liberty, or property without due process of law. The procedural due process inquiry typically entails two steps: (1) whether the person has a protected life, liberty, or property interest; and (2) if so, what process is then due. This Court follows the Seventh Circuit’s lead in approaching these claims in the correctional framework. See Felce v. Fiedler, 974 F.2d 1484, 1488 (7th Cir. 1992). First, courts must look to Turner v. Safley to define the extent of the liberty interest where prison regulations impede on constitutional rights. See id.; Johnson v. California, 543 U.S. 499, 510 (2005) (acknowledging that Turner applies to some due process claims). Second, if the inmate has such a liberty interest, courts must assess the constitutional sufficiency of the procedure used by employing the test laid out in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See id.
Starting with substance, a cognizable liberty interest may arise from the Constitution, statutes, or regulations. See Felce, 974 F.2d at 1488 (citations omitted); Williams v. Lane, 851 F.2d 867, 879–80 (7th Cir. 1988) (collecting cases). That said, the Due Process Clause—standing alone—is not the source of the liberty interest in parole, or in this case, supervised release. See Felce, 974 F.2d at 1489–90 (surveying the Supreme Court’s due-process-in-parole jurisprudence, including Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1978); Morrissey
Page 47 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 48 of 61 PageID #:1553
v. Brewer, 408 U.S. 471 (1972); and Board of Pardons v. Allen, 482 U.S. 369 (1987)). Rather, “a state may create such an interest by state law.” Id. at 1490. If a state does so, “a person serving a sentence of probation or parole has a limited liberty interest in his freedom that cannot be curtailed without the procedural protections of notice and hearing.” Werner v. Wall, 836 F.3d 751, 760 (7th Cir. 2016) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey, 408 U.S. at 482).
The question becomes, then, whether the language and structure of the supervised release system in Illinois creates an expectancy of release, which would entitle releasees to conditional liberty. See Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001); Taylor v. Edgar, 52 F. App’x 825, 826–27 (7th Cir. 2002). Here, the answer is that it is common ground between the parties that the PRB in fact granted the plaintiffs their release. (Dkt. 91 ¶¶ 2, 3–5, 42–43, 52, 63, 73.) In so doing, the PRB essentially promised these individuals a form of statutory liberty that the IDOC could not thereafter “revoke” without appropriate procedures. See, e.g., Murdock v. Walker, No. 08 C 1142, 2014 WL 916992, at *6 (N.D. Ill. Mar. 10, 2014); Heidelberg v. Illinois Prisoner Review Bd., 163 F.3d 1025, 1026 (7th Cir. 1998). For this reason, the parolerevocation analogy (e.g. Morrissey) is an apt one. Cf. Domka v. Portage Cty., Wis., 523 F.3d 776, 781 (7th Cir. 2008) (citing Paige v. Hudson, 341 F.3d 642, 643–44 (7th Cir. 2003), and contemplating other losses of freedom).
Accounting for Turner, the defendants neglected to identify conditions under which their interests outweigh a releasee’s conditional liberty. True enough, the government’s need to protect the community does not necessarily diminish over time.
Page 48 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 49 of 61 PageID #:1554
See Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001). The problem, though, is that the facts here come very close to sounding like preventive detention, which the Supreme Court has sanctioned “only when limited to specially dangerous individuals and subject to strong procedural protections . . . In cases in which preventive detention is of potentially indefinite duration, [the Supreme Court] [has] also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger.” Id. at 691 (citations omitted). The government cannot hold a citizen indefinitely because he or she at one time committed a crime and therefore remains dangerous. See Foucha v. Louisiana, 504 U.S. 71, 85–86 (1992) (expanding that the reasoning weakens when the state argues as much for one class of offenders but not others).
It is not difficult to posit that the State’s need to pursue legitimate correctional goals may more significantly limit the procedural protections the sooner after the PRB grants an indigent, homeless sex offender release rather than later. Cf. Rasul v. Bush, 542 U.S. 466, 488 (2004) (Kennedy, J., concurring in the judgment) (commenting that the government may be able to indefinitely detain someone taken from a hostile war zone for a matter of weeks, but as the period stretches from months to years, the justification becomes weaker). But here the defendants have detained at least two plaintiffs since their release dates in 2011, or, for over eight years. (Dkt. 91 ¶¶ 61, 80.)
In other words, the IDOC may elect not to liberate a PRB-approved indigent, homeless sex offender for some period, albeit not indefinitely. See Zadvydas, 533 U.S.
Page 49 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 50 of 61 PageID #:1555
at 699 (avoiding a constitutional question by construing a statute to authorize detention only for a reasonable time consistent with effectuating removal from custody); Kansas v. Hendricks, 521 U.S. 346, 363–64 (1997) (approving of statutory schemes that provide for indeterminate detention so long as they provide for periodic judicial review and entitle the detainee to release as soon as the defect ceases to exist). In this case, one class member wondered during his testimony whether the only way he would ever get out of prison is by dying. (Dkt. 91 ¶ 102.) At least two more stated that they felt like they would be trapped in prison for the rest of their lives. Id. ¶¶ 108, 133.
Having determined that state law recognizes this liberty interest, the Court must next address what procedural protections are necessary to ensure that IDOC’s decision to not release an individual already granted release is neither arbitrary nor incorrect. See Felce, 974 F.2d at 1496; Lane, 851 F.2d at 880 (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). This evaluation requires courts to weigh several factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The utilization of the foregoing analytical model in this setting requires the Court to accommodate the plaintiffs’ liberty interests in serving their mandatory supervised release terms in the community and
Page 50 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 51 of 61 PageID #:1556
the defendants’ interests in facilitating the plaintiffs’ reintegration into society while ensuring public safety.
Here, the problem is that there are a significant number of material facts that the parties genuinely dispute. The parties fundamentally disagree on whether there is a formal process in place for a person to contest the decision of a parole agent to deny approval of a host site. (Dkt. 91 ¶ 22; Dkt. 107 ¶ 29.) The defendants submit that an offender who wishes to contest the denial of a host site may file a grievance at his or her facility. (Dkt. 91 ¶ 22.) The plaintiffs call the defendants bluff on this point, asserting that the IDOC does not treat denials of parole sites as grievable issues. (Dkt. 107 ¶ 30.) For what it is worth, the defendants’ witness testified that he did not know whether the denial of a host site is a grievable issue. (Dkt. 91 ¶ 22 (citing in part Pl. Ex. 14, Dep. of Dixon, at 114:20–115:3); Dkt. 107 ¶ 29; Dkt. 128 ¶ 160.) The record contains several illustrations of the IDOC refusing to review a host-site denial; in fact, the defendants did not come up with one example of a hostsite denial being reviewed or overturned. (Dkt. 91 ¶¶ 26, 71; Dkt. 107 ¶ 29.)
That is not all. The parties also dispute whether the IDOC ever advises offenders of their right to contact the parole agent’s supervisor to request review of the agent’s decision, let alone gives them any information pertaining to how they can challenge an unfavorable disposition. (Dkt. 91 ¶ 23.) Consequently, it is unclear whether releasees are ever given this information. As it stands now, all that appears to be agreed on is that a releasee “has no opportunity to contest the parole agent’s
Page 51 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 52 of 61 PageID #:1557
decision(s) to reject proposed housing at a PRB hearing and the PRB does not review the IDOC’s decision to reject proposed host sites.” Id. ¶ 25.
Granted, the PRB does have a process in place to protect against a capricious taking of liberty: it is called revocation. See 730 ILCS 5/3-3-9(a)(3); see, e.g., Webb v. Godinez, No. 14 CV 10281, 2017 WL 2653142, at *5 (N.D. Ill. June 20, 2017). In Illinois, the PRB—not the IDOC—has the power to revoke a releasee’s MSR term for failure to comply with a condition, say, the host-site requirement. Absent a court order or an express statutory authorization to extend the duration of imprisonment beyond the original court-ordered term, then, the defendants are skating on thin ice. See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 254 n.3 (1972) (criticizing detention beyond the expiration of a court-imposed sentence).5
The coercive power of the state is awesome, but it is not absolute. The defendants cannot chalk everything up to discretion and call it a day. Discretion without procedure leads to arbitrary governance, and eventually, the loss of liberty. That is what the Due Process Clause guards against. That is also what the separation of powers guards against. The Supreme Court has warned that “the Constitution may well preclude granting “‘an administrative body the unreviewable authority to make determinations implicating fundamental rights.’” Zadvydas, 533 U.S. at 692 (quoting Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U.S. 445, 450 (1985)).
5 A court sentenced the first named plaintiff, Paul Murphy, to 36 months’ probation. (Dkt. 91 ¶ 39.) Although imprisonment was not originally imposed on Murphy, he has been incarcerated—not to mention approved for release—for over eight years. Id. ¶ 42.
Page 52 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 53 of 61 PageID #:1558
Notwithstanding the foregoing discussion, the record still remains riddled with disputed facts, so a trial will be necessary to determine whether the defendants offer the plaintiffs any procedure to determine whether a parole agent’s rejection of a proposed host site was proper or not. Only then will the Court be able to decide whether that process is constitutionally sound. Accordingly, the Court denies both parties’ cross-motions for summary judgment (Dkts. 75, 88) as to the procedural due process claim (Count III). IV. Eighth Amendment (Count IV)
Changing direction, the plaintiffs’ last claim is that the defendants’ application of the statutory scheme to them contravenes the Eighth Amendment to the Constitution. This analysis is separate and independent from the previous equal protection discussion. See Harrington v. Scribner, 785 F.3d 1299, 1307 (9th Cir. 2015) (“A prisoner’s success on an equal protection claim is not dependent on whether the government met its obligations under the Eighth Amendment.”). The claims do not compete, and the deference accorded to prison officials may very well differ under each provision. See id.
The Eighth Amendment generally limits the government’s power to punish criminal offenders. The Supreme Court has explained that:
The Cruel and Unusual Punishments Clause [of the Eighth Amendment] circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes, e.g., Estelle v. Gamble, [429 U.S. 97 (1976)]; Trop v. Dulles, [356 U.S. 86 (1958)]; second, it proscribes punishment grossly disproportionate to the severity of the crime, e.g., Weems v. United States, [217 U.S. 349 (1910)]; and third, it imposes substantive limits on what can be
Page 53 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 54 of 61 PageID #:1559
made criminal and punished as such, e.g., Robinson v. California, [370 U.S. 660 (1962)]. Ingraham v. Wright, 430 U.S. 651, 667 (1977). This case implicates the third iteration elucidated above—the substantive limitations on what the government may criminalize and therefore punish. The relevant distinction lies in applying criminal laws to punish conduct, which is constitutionally proper, and applying criminal laws to punish status, which is constitutionally improper. See generally Powell v. State of Tex., 392 U.S. 514 (1968); Robinson v. California, 370 U.S. 660 (1962). The plaintiffs argue that the defendants are punishing them because of their homeless status. The Eighth Amendment guides them, proscribing not just the criminal punishment of an individual’s status, but also an individual’s involuntary conduct otherwise inseparable from his or her status. See Martin v. City of Boise, 902 F.3d 1031, 1047–48 (9th Cir. 2018) (quoting and pulling from Jones v. City of Los Angeles, 444 F.3d 1118, 1137 (9th Cir. 2006), vacated as moot following settlement, 505 F.3d 1006 (9th Cir. 2007)); State v. Adams, 91 So. 3d 724, 753–54 (Ala. Crim. App. 2010); Powell, 392 U.S. at 567 (Fortas, J., dissenting) (declaring that “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change . . .”). It is not possible for homeless people to avoid sitting, lying, or sleeping in public because of their homeless status, at least where the evidence establishes that there is an absolute lack of available shelter space. See Martin, 902 F.3d at 1047–48; Adams, 91 So. 3d at 753–54 (discussing and borrowing liberally from Jones, 444 F.3d at 1131–38). That lack of housing is what drives the conduct from voluntary to
Page 54 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 55 of 61 PageID #:1560
involuntary. See Martin, 902 F.3d at 1047–48; Adams, 91 So. 3d at 753–54; see also Joel v. City of Orlando, 232 F.3d 1353, 1361–62 (11th Cir. 2000) (reasoning that there was unrefuted evidence of the availability of shelter space, meaning that the homeless person had an opportunity to comply with the ordinance, making his conduct voluntary).
In this case, the IDOC requires releasees to secure a qualifying host site to reside at while on MSR. (Dkt. 91 ¶ 2.) The IDOC exercises the sole discretion to approve or deny an inmate’s proposed host site based on a variety of statutes and regulations that restrict where sex offenders may live while on MSR. Id. ¶¶ 3–5. Ultimately, a parole agent must authorize the placement. Id. ¶ 4. The only time a person can apply for the termination of his or her indeterminate MSR term is after successfully serving three years of that term outside of prison. Id. ¶ 5.
So, for someone who is homeless, it is virtually impossible to comply with the IDOC’s application of the host site requirement. (Dkt. 91 ¶ 38 (“‘Q: Is it possible for a sex offender with an indeterminate MSR term who, A, does not have money to pay for his own housing, and, B, does not have family or friends on the outside who can pay for his housing [whether by living with them or paying for separate accommodations] to ever get out of the Illinois Department of Corrections? A: Never say never, but, . . . using those criteria, no.’”).)
The undisputed evidence here establishes that the plaintiffs are indigent, that they have no family or friends with whom they can live, and despite their efforts, homeless shelters, halfway houses, and work-release programs are not permitted to
Page 55 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 56 of 61 PageID #:1561
accept them as residents. Id. ¶¶ 45–49, 64–65, 67–70, 74–77, 87–89, 92–95, 98–101, 104–07, 110–13, 116–19, 121–24, 126–28, 130, 132–33. Furthermore, there are no halfway houses or transitional housing facilities in Illinois that will accept a convicted sex offender as a resident. Id. ¶ 28; Dkt. 107 ¶ 25.
On top of that, the IDOC does not permit any sex offender to reside at a homeless shelter while on mandatory supervised release, nor does it allow them to participate in work release programs that it provides to other offenders. (Dkt. 91 ¶¶ 29– 30.) For the plaintiffs, then, the failure to procure a host site is “not voluntary conduct merely related to, or derivative of, the status of homelessness, but [is] entirely involuntary conduct that [is] inseparable from [their] status of homelessness.” Adams, 91 So. 3d at 754. Thus, the defendants’ application of the host site requirement constitutes cruel and unusual punishment.
The defendants respond in the main that the State of Illinois is not charging the plaintiffs with a crime of being homeless, as other jurisdictions did in the cited precedent, prompting courts to strike down the operative statutes. True, but this is a distinction without a difference. All the Eighth Amendment calls for is punishment: a new indictment is of course sufficient; however, it is not necessary. Cf. Martin, 902 F.3d at 1048 (referring to “criminal penalties”); Diaz v. Lampela, 601 F. App’x 670, 675–76 (10th Cir. 2015) (in relying on this case the defendants miss the mark because the court there appreciates that “punitive incarceration solely on the basis of a person’s status or propensities violates the Eighth Amendment.” (emphasis added)).
Page 56 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 57 of 61 PageID #:1562
Prolonged incarceration is indeed punishment within the meaning of the Eighth Amendment. See, e.g., Courtney v. Butler, No. 17-3310, 2019 WL 718888, at *1 (7th Cir. Feb. 13, 2019); Aguilar v. Gaston-Camara, 861 F.3d 626, 631 (7th Cir. 2017); Turner v. Godinez, 693 F. App’x 449, 454 (7th Cir. 2017); Werner v. Wall, 836 F.3d 751, 760–61 (7th Cir. 2016); Childress v. Walker, 787 F.3d 433, 438–39 (7th Cir. 2015); Burke v. Johnston, 452 F.3d 665, 667 (7th Cir. 2006); Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001). Here, some plaintiffs have been kept in prison eight years past their release date. (Dkt. 91 ¶¶ 61, 80.)
The Seventh Circuit has, in fact, applied the status doctrine outside the normal context of criminal prosecution: in that case, probation. See Sweeney v. United States, 353 F.2d 10, 11 (7th Cir. 1965) (ruling that a probation condition is unreasonable if it is impossible to obey because the probationer has no power of volition and hence cannot abide by the condition). A revocation of supervised release (or here, a decision not to release) for the failure to comply with a condition of release is analogous to a criminal prosecution of a status offense. Cf. United States v. Pinjuv, 218 F.3d 1125, 1130–32 (9th Cir. 2000) (differing from this Court’s view but granting that those conditions that do not contribute significantly to the remedial goals of supervised release will be invalid and unenforceable). The defendants’ application of the host site requirement, while perhaps contributing to public safety, frustrates the rehabilitation process and is constitutionally void.
Because the substantive-limits claim carries the day, the Court need not reach the plaintiffs’ additional and alternative argument that the challenged scheme
Page 57 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 58 of 61 PageID #:1563
violates the Eighth Amendment by imposing a disproportionate sentence. The parties also briefed the issue of deliberate indifference earlier on in this litigation but have since seemed to abandon it in their reply briefs. The question of whether state of mind is a necessary element of a substantive-limits Eighth Amendment claim, as opposed to, for instance, a kinds-of-punishment claim (e.g. Estelle), is one not definitively answered by the case law. That might not come as a surprise because the Supreme Court applies the substantive limitation (proscribing punishment of a status) “sparingly.” Ingraham, 430 U.S. at 667.
For what it is worth, none of the cases on this Eighth Amendment branch discuss deliberate indifference. In its standing analysis in Jones, the Ninth Circuit recognized as a general matter that when “the state transgresses this limit, a person suffers constitutionally cognizable harm as soon as he is subjected to the criminal process.” 444 F.3d at 1129 (vacated as moot following settlement). A plaintiff with this species of claim, then, need only show that objective deprivation of liberty or property after the state overstepped the bound on its ability to criminalize. The Court appreciates, though, that this as-applied challenge is unique in the sense that the punishment is a post-conviction harm (extension of incarceration) and not a pre-conviction one. So, it is the jailers—not the arresters—that matter in this case, and subjective intent is generally a prerequisite in lawsuits against correctional staff (but not the police).
Assuming for the sake of argument that the plaintiffs must plead and prove deliberate indifference, the Court concludes that they have. See Childress, 787 F.3d
Page 58 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 59 of 61 PageID #:1564
at 439–40. The defendants knew of this problem and the risk that they were inflicting unwarranted punishment (e.g. numerous lawsuits, admissions in this case, news media and other public records); they failed to act or took ineffectual action (indeed, their continued enforcement exacerbated it); and their response caused the unjustified detention (they chose to confine these individuals past their release date). Cf. Burke, 452 F.3d at 669. This awareness amounts to a reckless disregard of constitutional rights.
Once again, the Court notes that its decision relates to an as-applied challenge and it in no way purports to tell the defendants how to best administer mandatory supervised release for sex offenders. The Court does not order the immediate release of the plaintiffs, nor does it hold that the framework always operates unconstitutionally or that there are no set of circumstances under which it would be valid. The Court only holds that the host site requirement is unconstitutional under the specific facts in this case and as applied to the defendants. It remains the IDOC’s job to appropriately exercise its discretion to achieve the goals of the state legislature in implementing mandatory supervised release for sex offenders. Accordingly, the Court grants the plaintiffs’ motion for summary judgment (Dkt. 75) on the Eighth Amendment claim (Count IV) and denies the defendants’ cross-motion (Dkt. 88).
Page 59 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 60 of 61 PageID #:1565
CONCLUSION Sex offenders are criminals, plain and simple. Yet the “one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness,” is that it “‘is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’” United States v. Montoya de Hernandez, 473 U.S. 531, 567 (1985) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)). The Illinois Legislature thought it best to rehabilitate sex offenders by reintegrating them, like all other convicted felons, into the community after prison. The Constitution thus entitles them to the same conditional liberty that all other releasees receive. Because the defendants’ current application of the host-site requirement permits the indefinite detention of the plaintiffs, it breaches the promises enshrined in the Bill of Rights. The Court accordingly grants the plaintiffs’ motion for summary judgment (Dkt. 75) as to their equal protection (Count II) and Eighth Amendment claims (Count IV), denies it as to their substantive (Count I) and procedural (Count III) due process claims, and denies the defendants’ cross-motion in full (Dkt. 88). Although the Court today decides liability, it reserves ruling on the proper remedy to afford the plaintiffs. The Court sets a status hearing for 4/22/2019 at 9:00
Page 60 of 61

Case: 1:16-cv-11471 Document #: 132 Filed: 03/31/19 Page 61 of 61 PageID #:1566
a.m. to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief.

Date: March 31, 2019

____________________________________ Virginia M. Kendall United States District Judge

Page 61 of 61

 
 Case: 1:16-cv-11471 Document #: 156 Filed: 01/15/20 Page 1 of 4 PageID #:1622

Case: 1:16-cv-11471 Document #: 156 Filed: 01/15/20 Page 2 of 4 PageID #:1622

Case: 1:16-cv-11471 Document #: 156 Filed: 01/15/20 Page 3 of 4 PageID #:1622

Case: 1:16-cv-11471 Document #: 156 Filed: 01/15/20 Page 4 of 4 PageID #:1622