                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                 Lucas v. Department of Corrections, 2012 IL App (4th) 110004




Appellate Court            SHAUN B. LUCAS, Plaintiff-Appellant, v. THE DEPARTMENT OF
Caption                    CORRECTIONS and MICHAEL P. RANKLE, Director; THE
                           PRISONER REVIEW BOARD and JORGE MONTES, Chairman; and
                           THE LAKE COUNTY SHERIFF’S DEPARTMENT, Defendants-
                           Appellees.



District & No.             Fourth District
                           Docket Nos. 4-11-0004, 4-11-0310 cons.


Rule 23 Order filed        February 16, 2012
Rule 23 Order
withdrawn                  March 30, 2012
Opinion filed              February 16, 2012


Held                       Plaintiff’s action alleging that he was kept in prison past the scheduled
(Note: This syllabus       date for the commencement of his period of mandatory supervised release
constitutes no part of     was properly dismissed for failure to state a cause of action, since
the opinion of the court   electronic monitoring was a condition of MSR, but plaintiff did not have
but has been prepared      a residence suitable for such monitoring and the Department of
by the Reporter of         Corrections had no duty to find such a residence for plaintiff, even though
Decisions for the          the Department attempted to do so.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 10-CH-645; the
Review                     Hon. Leo J. Zappa, Jr., Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Shaun B. Lucas, of Bridgeview, appellant pro se.
Appeal
                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Sunil Bhave, Assistant Attorney General, of
                           counsel), for appellees.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Justices Pope and Knecht concurred in the judgment and opinion.



                                             OPINION

¶1          Plaintiff, Shaun B. Lucas, sued the Department of Corrections (DOC) and its director as
        well as the Prisoner Review Board and its chairman for keeping him in prison beyond the
        scheduled commencement of his mandatory supervised release (MSR). The trial court
        granted defendants’ motion to dismiss the complaint for failure to state a cause of action, and
        the court struck the case.
¶2          Plaintiff appeals, and we affirm the trial court’s judgment because (1) electronic
        monitoring was a condition of MSR, (2) plaintiff had no residence suitable for electronic
        monitoring, and (3) DOC had no duty to find such a residence for plaintiff, although DOC
        tried to do so.

¶3                                        I. BACKGROUND
¶4           Lucas alleges as follows in his complaint. On April 9, 1999, the Lake County circuit
        court sentenced him to imprisonment for 12 years and 6 months for the offense of predatory
        criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). Statutory law
        required that he serve 85% of the sentence, but the court allowed him credit for 149 days in
        presentence confinement.
¶5           On March 11, 2009, when plaintiff was nearing the end of his prison sentence, the
        Prisoner Review Board served upon him a document stating that his MSR would be
        “Effective When Eligible” (meaning, evidently, that MSR would begin when he was eligible
        for it) and that the MSR would be subject to some special conditions, including electronic
        monitoring. Plaintiff signed the document, thereby acknowledging that he had received the
        list of conditions (they were listed in the document) and that he understood that his failure
        to follow the conditions could result in the revocation of “parole,” i.e., MSR.
¶6           Plaintiff’s MSR was scheduled to begin on July 2, 2009. On July 1, 2009, DOC tendered


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     to him a “Parole or Mandatory Supervised Release Agreement.” Under the terms of this
     agreement, electronic monitoring was a condition of MSR–as the Prisoner Review Board
     already had decided. At first, plaintiff balked at signing the agreement, but “[a]fter being
     threatened with punishment under DOC rules and regulations if he didn’t sign,” he gave in
     and signed it. (In his briefs, plaintiff does not specify what the threatened “punishment” was
     or which “DOC rules and regulations” purportedly authorized the punishment.)
¶7       On July 2, 2009, DOC refused to release plaintiff on MSR because he was indigent and
     had no residence in which to live, making it impossible for him to comply with electronic
     monitoring, which was a condition of MSR. A “Parole Violation Report,” dated August 13,
     2009, stated as follows:
         “Offender is in violation of rule #16 in that he is mandated by the Prisoner Review Board
         to be supervised on electronic monitoring/GPS. This agency attempted to place the
         offender at (all) places with family and/or friends in the community and no suitable host
         site was found to supervise the offender on electronic monitoring/GPS. This agency
         attempted to place the offender at (all) places that the Illinois Department of Corrections
         would pay for and the paid placements for any number of reasons could not accept the
         offender. The offender is unable to fulfill the mandate by electronic monitoring/GPS
         place by the Prisoner Review Board.”
     An “approved electronic monitoring device” is, by statutory definition, “a device approved
     by the supervisory authority which is intended primarily to record or transmit information
     as to the defendant’s presence or nonpresence in the home.” (Emphasis added.) 730 ILCS
     5/5-8A-2(A) (West 2010). Because DOC had not succeeded in finding a home for plaintiff
     that could accommodate electronic monitoring, a condition of his MSR was unfulfilled.
     Consequently, DOC declined to release him (we note, however, that according to DOC’s
     website (http://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited
     March 23, 2012)), plaintiff currently is not an inmate).
¶8       On August 24, 2009, in the Sangamon County circuit court, plaintiff filed a complaint
     for damages and injunctive relief. In his complaint, he alleged that defendants had a duty to
     locate a residence for him that could accommodate electronic monitoring and that DOC had
     failed to approve a release plan for him by the end of his determinate sentence of
     imprisonment. He asserted that continuing to hold him in prison, instead of releasing him on
     MSR, was false imprisonment. Therefore, he sought general, special, and punitive damages
     as well as an injunction ordering defendants to (1) provide him a suitable residence during
     MSR and (2) immediately release him.
¶9       On September 1, 2010, pursuant to section 2-615 of the Code of Civil Procedure (735
     ILCS 5/2-615 (West 2010)), defendants filed a motion to dismiss the complaint for failure
     to state a cause of action. In their motion for dismissal, defendants explained that although
     DOC, in its discretion, could assist inmates in obtaining residential placement suitable for
     MSR, DOC had no duty to do so. Citing our decision in Neville v. Walker, 376 Ill. App. 3d
     1115 (2007), defendants argued that an inmate who could not comply with the conditions of
     MSR imposed by the Prisoner Review Board was not entitled to be released on MSR.
     Defendants also raised the defense of sovereign immunity.


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¶ 10       On August 24, 2009, the trial court granted defendants’ motion for dismissal and struck
       the case.
¶ 11       This appeal followed.

¶ 12                                         II. ANALYSIS
¶ 13       We are aware of no statute requiring DOC to find residential placement for an inmate
       before the commencement of MSR. Instead, section 3-14-3 of the Unified Code of
       Corrections (730 ILCS 5/3-14-3 (West 2008)) states that DOC “may in addition to other
       services provide *** assistance in residential placement.” (Emphasis added.) The word
       “may” usually signifies discretion, not duty. Krautsack v. Anderson, 223 Ill. 2d 541, 554
       (2006).
¶ 14       In his motion to reconsider the dismissal of his complaint, plaintiff argued that DOC’s
       administrative directive No. 04.50.115 (effective November 1, 2007) imposed on DOC a
       duty to find suitable residential placement for him. Paragraph 5(b)(3)(a) of the administrative
       directive stated that prior to the offender’s being released, “[t]he place of intended residence
       shall be verified with the offender” and “[i]f the Parole Supervisor or the Interstate Compact
       Unit does not approve of the proposed address given and the offender can give no other
       address,” “[t]he Placement Resource Unit shall be contacted and provide an approved
       alternative address.” We are aware of no authority, however, for the premise that an
       administrative directive creates a duty on the part of the agency. It is true that administrative
       rules have the force of law (People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill.
       2d 370, 380 (2008)), but administrative directives are not administrative rules (Romero v.
       O’Sullivan, 302 Ill. App. 3d 1031, 1034 (1999)). DOC’s administrative directive No.
       04.50.115 is not part of the Illinois Administrative Code. An administrative directive is
       directed solely at the staff of the agency, not at the public, and hence it creates no duty on the
       part of the agency toward the public. See id. at 1034-35; Kirkland Masonry, Inc. v.
       Commissioner of Internal Revenue, 614 F.2d 532, 534 (5th Cir. 1980).
¶ 15       So, DOC had no statutory or regulatory duty to obtain a residential placement for plaintiff
       that would enable him to comply with the electronic monitoring that was a condition of his
       MSR (although DOC had statutory authority to try to do so–and did try to do so). As we said
       in Neville, “an inmate is entitled to MSR only so long as that inmate complies with the
       conditions imposed by the [Prisoner Review] Board.” Neville, 376 Ill. App. 3d at 1120. For
       sex offenders, one of those conditions can be electronic monitoring. Id. at 1119. In plaintiff’s
       case, the Prisoner Review Board decided there should be no MSR without electronic
       monitoring. The Prisoner Review Board was entitled to make that judgment call. See 730
       ILCS 5/3-3-7(b-1)(6) (West 2008). Because plaintiff lacked a residence in which electronic
       monitoring was possible, there could be no MSR until such a residence was found. Instead
       of doing anything tortious, DOC simply followed the law, and thus there is no basis for the
       issuance of an injunction.
¶ 16       In addition to an injunction, plaintiff seeks damages, but to be liable for damages, DOC
       had to commit a tort, and we do not see in what respect DOC did so. And, besides, even if
       DOC did something tortious in keeping plaintiff in prison beyond the scheduled

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       commencement of his MSR, the State has sovereign immunity from the claim for damages.
       See 705 ILCS 505/8(d) (West 2008).
¶ 17      For all these reasons, in our de novo review, taking the well-pleaded facts of plaintiff’s
       complaint as true and regarding those factual allegations in a light most favorable to him, we
       conclude the trial court was correct in granting defendants’ motion to dismiss the complaint.
       See A.P. Properties, Inc. v. Goshinsky, 186 Ill. 2d 524, 527 (1999).

¶ 18                                  III. CONCLUSION
¶ 19      For the foregoing reasons, we affirm the trial court’s judgment.

¶ 20      Affirmed.




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