record whether the plaintiff was released again on electronic home monitoring.] The plaintiff
discharged his sentence on March 2, 2001. He initiated this action on July 19, 2001.

The plaintiff contends that the law under which he was sentenced provided for
mandatory release after a fixed term (less any good conduct credits), and that the three years
of supervised confinement on electronic detention effectively extended his incarceration for
an extra three years. The plaintiff asserts that Illinois Supreme Court overturned the statute
based upon which he was placed on electronic detention. The plaintiff further argues that the
Electronic Home Detention Law created a “double standard” that violated his right to due
process, subjected him to double jeopardy, and amounted to an ex post facto law.

DISCUSSION

The defendants’ motion to dismiss will be granted. Even accepting the plaintiff's
factual allegations as true, Count I fails to state a colorable cause of action against the
defendants under 42 U.S.C. § 1983. In its threshold review, the court gathered from the
complaint that the prison system had tacked an additional three years onto the plaintiff's
sentence after it had expired. However, further briefing reveals that the prison system simply
imposed a condition on the plaintiffs mandatory supervised release that he had not expected.
The court finds as a matter of law that the plaintiff’s placement on electronic detention
following his release from prison did not violate his constitutional rights.

Timeliness
The defendants argue that the complaint must be dismissed as time-barred. The

defendants maintain that because the plaintiff challenges a purportedly unlawful placement


The plaintiff also contends that perceived discrepancies between Illinois statutes
governing electronic home detention makes them void and unenforceable. As discussed in
preceding paragraphs, the law allows for inmates convicted of aggravated criminal sexual to
be placed on electronic home detention in connection with their parole or mandatory
supervised release. In contrast, under 730 ILCS § 5/5-8A-3(d), “A person serving a sentence
for conviction of an offense other than .. . aggravated criminal sexual assault... may be
placed in an electronic home detention program for a period not to exceed the last 12 months
of incarceration [provided that four criteria are met].” The plaintiff maintains that because he
could not be considered for early parole on electronic home detention, he should not have
been placed on electronic detention as a condition of his mandatory supervised release. The
court finds that argument to be without merit.

The subparts of the Electronic Home Detention Law are not internally inconsistent.
The plaintiff takes issue with the law’s exclusion of individuals convicted of certain (mostly
violent) crimes from consideration for early release, while permitting their placement on
electronic detention while on parole or mandatory supervised release. However, the
distinction is perfectly rational: inmates convicted of offenses such as criminal sexual
assault, firearm charges and “Super-X” drug offenses ostensibly pose a greater danger to the
public. Therefore, their incarceration obviously offers greater security than would home
confinement. Those inmates are consequently deemed unsuitable for early release from the

penal setting on electronic home detention.


criminal sexual assault (see complaint and accompanying Exhibits), the constitutionality of
Public Act 89-428 is irrelevant to his situation.
Application of the Electronic Home Detention Law to the Plaintiff

The plaintiff additionally argues that the Electronic Home Detention Law, which was
enacted after he was convicted, violated the Ex Post Facto Clause. However, the court finds
that the plaintiff’s placement on electronic detention as a term of his mandatory supervised
release did not so affect the terms and conditions of his sentence as to violate his
constitutional rights.

The Electronic Home Detention Law, which went into effect on January 1, 1991,
allows for individuals either charged with or convicted of certain offenses to be placed on an
approved electronic monitoring device. See 730 ILCS § 5/5-8A-1 et seg. Under the statutory
scheme, persons convicted of excluded offenses, including criminal sexual assault, are
ineligible for the electronic home detention program, “except .. . while on parole or
mandatory supervised release.” See 730 ILCS § 5/5-8A-3(a); 730 ILCS § 5/5-8A-2(B).

The Ex Post Facto Clause would bar imposition of any legislative change that had the
effect of imposing a greater penalty on the plaintiff after he committed his criminal offense.
“[A]Jny statute which punishes as a crime an act previously committed, which was innocent
when done; which makes more burdensome the punishment for a crime, after its commission,
or which deprives one charged with crime of any defense available according to law at the
time when the act was committed, is prohibited as ex post facto.” Collins v. Youngblood, 497

USS. 37, 42 (1990), citing Beazell v. Ohio, 269 U.S. 167, 169-70 (1925).


on electronic detention that occurred on January 21, 1999, the statute of limitations expired
on January 21, 2001. The court disagrees. “The . . . statute of limitations for Section 1983
actions filed in Illinois is two years as set forth in 735 ILCS § 5/13-202.” Henderson v.
Bolanda, 253 F.3d 928, 931 (7" Cir. 2001), citing Ashafa v. City af Chicago, 146 F.3d 459,
462 (7" Cir. 1998). It is true that the plaintiff was aware of his injury as soon as he was
placed on electronic detention against his will. But if the plaintiff's placement on electronic
detention were wrongful, every day that his liberty remained restricted prolonged his injury
and caused the statute of limitations to start running anew. Compare Heard v. Sheahan, 253
F.3d 316, 317-18 (7" Cir. 2000) (defendants’ refusal to provide medical care amounted to a
“continuing violation” that kept the plaintiff's claims alive well after the plaintiff discovered
he had a medical problem that required attention). The court therefore deems the complaint
to be timely filed and has considered the substantive merits of the plaintiff's claims.
Constitutionality of the Electronic Home Detention Law

The plaintiff correctly points out that the Illinois Supreme Court, in Johnson v. Edgar,
176 Ill.2d 499 (1997), invalidated Public Act 89-428 under the Illinois Constitution’s single
subject rule. However, the plaintiff is mistaken that the overturned statute in any way
affected him, Public Act 89-428 did not “give birth to” the Electronic Home Detention Law.
Rather, the new statute merely (among its many other provisions) added the crime of
“predatory criminal sexual assault of a child” to the list of excluded offenses under 730 ILCS
§ § 5/5-8A-2(B) and 5/5-8A-3(d). The plaintiff in the case at bar, however, was not

convicted of sexually assaulting a child. Because the plaintiff was convicted of aggravated


electronic home detention, even if the technology to support that form of monitoring did not
widely exist at the time the plaintiff committed the crime for which he was sentenced.

The statute governing parole and mandatory supervised release provides, “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). Electronic home detention serves that end. The increased limitation on the plaintiff's
freedom engendered by electronic home detention did not violate the Ex Post Facto Clause.
Such placement did not increase the quantum of punishment for the crime of which the
plaintiff was convicted. Contrast Miller v. Florida, 482 U.S. 423 (1987) (revision in
sentencing guidelines that increased a sexual offender’s presumptive sentence after the
petitioner was arrested but before he was sentenced violated the Ex Post Facto Clause). It is
not the case that the plaintiff was required to serve more time in prison or on supervised
release than he would have under the old law. An essentially procedural condition of release
was simply added.

The challenged statute likewise did not violate the Double Jeopardy Clause. Although
the plaintiff labels his placement on electronic home detention as a “re-taking” or “re-
imprisonment,” he mischaracterizes his situation. The plaintiff was not punished twice for
the same offense. As discussed above, the plaintiff's placement on electronic home
detention, while somewhat more restrictive than general parole, was a reasonable stipulation
of the mandatory supervised release to which he had already been sentenced. The plaintiff's

placement on electronic home detention was not invalid on grounds of double jeopardy.


Minute Order Ferm (06/97) *

S \ United States District Court, Northern District of Illinois

Name of Assigned Judge WAYNE R. ANDERSEN Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C5134 DATE Apait hy Aon
F
CASE Johnny Taylor a/k/a Willie Johnson v. Kevin Remmers, et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.}

(2) im} Brief in support of motion due

@) Oo Answer brief to motion due____. Reply to answer brief due.

(4) oO Ruling/Hearingon ss setfor at

(5) o Status hearing[held/continued to] [set for/re-set forlon__——ssetfor_ at.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_ at.
(7) im] Trial[set for/re-set for] on__—__at

(8) oO [Bench/Jury trial] [Hearing] held/continued to at

(C)) go This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) General Rule21 O FRcPstiax) CO FRCP41(a)(2).

En Mem Opinio rdw:
| [Other docket entry] For the reasons Sak ra nacann the seobmengere Memorandum Opinion and

(10)
Order, the defendants’ motion to dismiss [#13] is granted. The complaint is dismissed with prejudice
pursuant to Fed. R. Civ. P. 12(b)(6). The case is terminated. The parties are to bear their own costs. The
ruling date set for May 28, 2002, at 9:00 a.m. is a
bJ.,- a
ah ff [See attached Memorandum Opinion and Onder
No notices required, advised in open court. Document
' . Number
No notices required. .
umber of notices
Notices mailed by judge’s staff. j
‘oti rere MBI
Notified counsel by telephone. BPR Ae ore
Y | Docketing to mail notices
Copy to judge/magistrate judge. SEU STA Sql

‘courtroom date mailed notice

mjm deputy’s
initials

eb May ot

Date/tinge received in
central Glerk’s-Office.

mailing dopury initials



Defendants’ Immunity

Finally, even assuming (without finding) that the plaintiff’s placement on electronic
detention was unconstitutional, the defendants are immune from suit for damages. As
Chairperson of the Prisoner Review Board, the defendant Taylor is absolutely immune from
liability for her official actions. See, ¢.g., Walker v. Prisoner Review Board, 769 F.2d 396,
398-99 (7" Cir. 1985), cert. denied, 474 U.S. 1065 (1986). The parole officers are likewise
entitled to immunity because they were acting pursuant to facially valid statutes and
regulations, State officials performing discretionary acts enjoy qualified immunity when
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known at the time the incident occurred. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Here, the plaintiff was placed on electronic home
detention in accordance with the law in effect at the time of his mandatory release (and still
valid). Because the court has found no authority in any state or federal jurisdiction holding
that such changes in mandatory supervised release violate the Constitution, the defendants
would have had no way of knowing that placing the plaintiff on electronic home detention
was unlawful. They therefore enjoy qualified immunity against suits for damages.
Conclusion

In sum, for ail of the foregoing reasons, the complaint fails to state a claim as a matter
of law. The plaintiff was statutorily required to serve three years of mandatory supervised
release following the completion of his prison sentence. The plaintiffs placement on

electronic home detention in connection with that supervised release, even though authorized

aL


For those inmates convicted of such crimes who must be granted parole or mandatory
supervised release, placement on electronic home detention affords greater controls than
would merely having to check in periodically with a parole officer. Hence, the provisions of
the Act are in no way discordant. The law properly distinguishes between inmates who seek
early release from prison and those who must, by law, be released. Accordingly, the statutory
denial of the plaintiff’s application for early release under the electronic detention program,
followed by the imposition of electronic home detention as a condition of mandatory
supervised release, was not arbitrary or capricious.

The plaintiff also asserts that being “forced” to submit to electronic detention violated
his constitutional right to due process. But the statute specifically exempts the supervising
authority from having to obtain an inmate’s consent for electronic home detention in cases of
parole or mandatory supervised release. See 730 ILCS § 5/5-8A-5(D). By law, the plaintiff
had no choice in the matter. He was not entitled to a hearing or any other type of due
process, as the electronic detention was only a condition of his release and not a parole
revocation or any other form of re-deprivation of his liberty.

In short, the court finds that the plaintiff’s required placement on electronic home
detention as a condition of his mandatory supervised release did not violate his constitutional
rights. The statutes governing electronic detention pass constitutional muster and did not
subject the plaintiff to double jeopardy, ex post facto punishment, or arbitrary application of

the law.

10


In order to establish a violation of the Ex Post Facto Clause, the plaintiff must show
that the revision of the law altered a substantial right. Mosley v. Klincar, 947 F.2d 1338,
1339 (7" Cir. 1991) (validating a requirement that victims be notified of, and given the
opportunity to participate in, scheduled parole hearings). Even though a change in the law
may work to the plaintiff's disadvantage, a procedural change is not ex post facto. Id., citing
Dobbert v. Florida, 432 U.S. 282, 292 (1977). The Ex Post Facto Clause does not forbid all
legislative changes that have any conceivable risk of affecting a prisoner’s punishment.
California Dept. of Corrections v. Morales, 514 U.S. 499, 508-09 (1995) (upholding a
retroactive statute allowing the California Board of Prisons to decrease the frequency of
parole hearings); see also Garner v. Jones, 529 U.S. 244, 246 (2000) (change in frequency of
parole hearings for inmates serving life sentences from every three years to every eight years
did not necessarily violate the Ex Post Facto Clause).

In this case, the statutory change did not criminalize previously innocent acts, alter the
degree of proof necessary to establish the plaintiff's guilt, increase the severity of the
plaintiffs punishment after his commission of the crime, lengthen the term of his
imprisonment, eliminate credits for good behavior, nor abolish or restrict parole eligibility.
The Electronic Home Detention Law simply allows for a person on parole or mandatory
supervised release to be placed on electronic home detention. The revision of existing parole
procedures did not amount to a “re-taking” or “re-imprisonment,” as the plaintiff argues, and
did not alter a substantial, personal right. The plaintiff was statutorily required to serve three

years of mandatory supervised release; supervised release easily encompasses the concept of


sexual assault. His twenty-five year determinate sentence included a mandatory supervised
release term of three years. The plaintiff was sentenced under a 1978 law.

In 1994, the plaintiff requested to be placed in the electronic detention program for the
remaining four years of his sentence. The plaintiff's requests were denied on the grounds
that Illinois law excludes anyone convicted of criminal sexual offenses from being
considered for early release on electronic detention. See 730 ILCS § 5/5-8A-3(a); 730 ILCS
§ 5/5-8A-2(B).

On January 21, 1999, after serving twelve years and three months of his twenty-five
year sentence, the plaintiff was released because he had accumulated enough day-for-day
“good time” credits to satisfy his mandatory prison sentence.

However, when the plaintiff arrived at his sister’s home, an unnamed parole agent
placed him on “re-confinement” under the electronic home detention program. The parole
agent cited several Illinois statutes as authorizing electronic home detention and informed the
plaintiff that he would have to remain on electronic detention for up to the three full years of
his mandatory supervised release. Although the plaintiff had committed no wrongdoing and
was not afforded a hearing, he was “forced” to agree to electronic detention, the alternative
being to face disciplinary action and possible parole revocation.

In June 2000, the plaintiff was charged with a parole violation and returned to prison.
[The court previously dismissed those counts of the complaint in which the plaintiff
challenged the parole revocation proceedings.] The plaintiff served all or part of the

remaining period of his mandatory supervised release term in prison. [It is unclear from the


City of Chicago, 230 F.3d 319, 325 (7" Cir. 2000). They can be dismissed for failure to state
a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Haines, 404 U.S. at 521 ; Zimmerman y.
Tribble, 226 F.3d 568, 571 (7" Cir. 2000).

When considering whether to dismiss a complaint for failure to state a claim upon
which relief can be granted, the court takes the allegations in the complaint as true, viewing
all facts--as well as any inferences reasonably drawn therefrom--in the li ght most favorable to
the plaintiff. Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7" Cir. 1998).
Dismissal should be denied whenever it appears that a basis for federal jurisdiction in fact
exists or may exist and can be stated by the plaintiff. Jones v. Edgar, 3 F. Supp. 2d 979, 980
(C.D. Ill. 1998). Nevertheless, in order to withstand a motion to dismiss, a complaint must
allege facts sufficiently setting forth the essential elements of the cause of action. Lucien v.
Preiner, 967 F.2d 1166, 1168 (7" Cir. 1992), cert. denied, 506 U.S. 893 (1992).

FACTS

The plaintiff, Johnny Taylor (also known as Willie Johnson), is a former Illinois state
prisoner. The defendant Anne Taylor is the Chairperson of the Illinois Prisoner Review
Board. The defendant Kandie Manning (who now goes by her married name, Martens) was
assigned as the plaintiff’s parole officer in or around March 1999. The defendant Kevin
Remmers became the plaintiff's parole agent in August 1999.

The plaintiff alleges the following facts, which will be accepted as true for purposes

of this motion: In or around July of 1987, the plaintiff was convicted of aggravated criminal


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

EASTERN DIVISION
JOHNNY TAYLOR a/k/a )
WILLIE JOHNSON, ) APR 1 22002
)
Plaintiff, )
) APR 3 2 2002
v. ) NO. 01 C5134
)
KEVIN REMMERS, et al. ) HON. WAYNE R. ANDERSEN
)
Defendants. 9)

MEMORANDUM OPINION AND ORDER

The plaintiff, Johnny Taylor, has brought this pro se civil rights action pursuant to 42
US.C. § 1983. The plaintiff claims that the defendants, parole officials, violated the
plaintiff’s constitutional rights by denying him due process and by subjecting him to ex post
facto punishment and double jeopardy. More specifically, the plaintiff alleges that the
defendants unlawfully forced him to remain on electronic detention for three years after he
had served his mandatory prison sentence.' This matter is before the court for consideration
of the defendants’ motion to dismiss the complaint for failure to state a claim. For the
reasons stated in this order, the motion will be granted and the case will be dismissed.

It is well established that pro se complaints are to be liberally construed. Haines v.

Kerner, 404 U.S. 519, 520 (1972), reh’g denied, 405 U.S. 948 (1972); see also McCormick v.

*By Minute Order of July 19, 2001, the court dismissed the complaint as to all other
claims and defendants pursuant to 28 U.S.C. § 1915(e)(2)(B). 2X


by a statute enacted subsequent to his conviction, did not so change the terms of his sentence
as to violate the Ex Post Facto Clause. Nor did his confinement subject him to double
jeopardy. The plaintiff's allegations do not implicate any constitutional right. Regardless,
the defendants are immune from suit for damages. Accordingly, the defendants’ motion to
dismiss must be granted.

If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this
court within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth the issues the plaintiff plans to present on
appeal. See Fed. R. App. P. 24(a)(1)(C); Hyche v. Christensen, 170 F.3d 769, 771 (7" Cir.
1999),

IT IS THEREFORE ORDERED that the defendants’ motion to dismiss (docket #13)
is granted, The complaint is dismissed pursuant to Fed. R. Civ. P. 12(b)(6) and the case is
terminated. The parties are to bear their own costs. The ruling date previously set for May
28, 2002, at 9:00 a.m. is vacated.

ENTER:

Miuyre.b Cadbesase fox

WAYNE R. ANDERSEN
United States District Judge

DATED: Wf 1,300 2

12