IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
LINDA SHELTON, Plaintiff v.
JORGE MONTES, Chairman Illinois Prisoner
Review Board in his official capacity, and ROGER WALKER JR., Director Illinois Department of Corrections in his official capacity, Defendants,
Hon. Rita M. Novak Judge Presiding
08 CH 24471
COMPLAINT FOR INJUNCTION
Parties
1. Plaintiff, during pendency of this complaint, was a resident of the State of Illinois and County of Cook and a person who was wrongfully convicted of aggravated battery of a correctional officer on December 3, 2007 and sentenced to two years in the Illinois Department of Corrections (“IDOC”).
[1] She completed the minimum prison sentence on March 31, 2008 and was released on mandatory supervised release (“MSR”), which is effective until March 27, 2009. She is actively pursuing an appeal of this wrongful and fraudulent conviction.
2. Defendant Walker, at all times during the pendency of this complaint, was the duly appointed director of the IDOC and the legal custodian of Plaintiff from December 3, 2007 to the present.
3. The Illinois Department of Corrections is a Department in the State of Illinois authorized by Statute to maintain custody of persons lawfully convicted of a felony crime and sentenced to the penitentiary during the pendency of their sentence.
4. Defendant Montes, at all times during the pendency of this complaint, was the duly appointed director of the Illinois Prisoner Review Board (“PRB”).
5. The PRB is an agency in the State of Illinois authorized by Statute to serve as the board of review, independent of the IDOC, for cases involving revocation of prison good conduct credits, or a suspension or reduction in the rate of accumulating such credit; as well as the authority for setting conditions of mandatory supervised release under 730 ILCS Section 5/3-3-7(a)&(b) of the Illinois Code of Corrections, and determining whether a violation of those conditions warrant revocation of MSR or the imposition of other sanctions.
Facts
6. On March 28, 2008, Plaintiff was released from the penitentiary and placed on MSR after serving the minimum sentence minus good conduct credits.
7. On March 28, 2008, while at Dwight Correctional Center, during the release process, Plaintiff was ordered to sign an agreement for mandatory supervised release and related papers. Plaintiff refused to sign such papers because they erroneously listed her mandatory approved residence as a place she had never heard of, “Hardin House, 7528 S Eggleston, Chicago,” when she actually lives at XXXXX and is responsible for assisting her elderly disabled father with his affairs, as well as because Plaintiff was told she was being turned over to the custody of the Cook County Department of Corrections (“CCDOC”), when in fact she had paid a bond on one last pending wrongful criminal charge and was to be released.
8. IDOC staff, at no point, prior to release on March 28, 2008, discussed living arrangements, conditions of MSR, or Plaintiff’s transfer to the CCDOC with Plaintiff. The above erroneous arrangements and ordered mandatory residence were a shock to Plaintiff, and would have perpetuated the extreme hardship on her father.
9. On March 28, 2008, immediately after Plaintiff refused to sign and complained about the erroneous MSR documents, Plaintiff was taken into custody on an alleged charge of violation of parole for “refusing to live at assigned residence, and refusing to sign MSR agreement.”
10. 730 ILCS 5/3-3-9(d) states that MSR may not be revoked without written notice to the offender. Plaintiff was negligently taken into custody on March 28, 2008, because she legitimately refused to sign documents that erroneously said she was going to live at 7528 S. Eggleston in Chicago. Plaintiff was not given any written notice. Nothing related to parole including the place Plaintiff would live and the fact she cared for her disabled elderly father was discussed with her before scheduled release on March 28, 2008.
11. Plaintiff lives at XXXX AND was the caretaker for a disabled father, who had been forced to hire caretakers using his retirement funds due to the illegal and unconstitutional incarceration of his daughter, the Plaintiff.
12. Plaintiff was also told that she was being turned over to CCDOC officers for transport back to the CCDOC, when she had posted bond, and there was absolutely no reason to do anything but release her immediately. Turning her over to the CCDOC officers was illegal.
13. 730 ILCS 5/3-3-7(c) states that those persons placed under MSR SHALL be told of special conditions of MSR before release and he SHALL sign a copy of such conditions before release. The document signed by Plaintiff on March 31, 2008 listed no special conditions of MSR, nor has Plaintiff ever received a copy of PRB order for special conditions of MSR, or been asked to sign another MSR agreement document.
14. This mandatory rather than discretionary language means that the PRB may not enlarge or modify conditions of MSR unless there is a due process finding of a violation of conditions of MSR by the PRB.
15. Plaintiff was held until March 31, 2008 in custody, and then released after signing partially corrected MSR documents under duress of threat of continued custody.
A. Enlargement of Statutory Conditions for MSR may NOT be made After Release Without a Finding of Violation of Conditions of MSR in a Due Process Hearing.
16. On information and belief, the PRB at a hearing without the presence of the Plaintiff or her counsel, and without due process, on May 28, 2008, illegally ordered special conditions of MSR for Plaintiff including “CG anger management counseli[ng]” (a form of mental health treatment), as well as “CP outpatient m[e]nt[a]l h[ea]lth cond[itions]” (which has not been defined to Plaintiff). This is quoted from a computer printout, labeled “ PAROLE – PRB HEARING SCHEDULE/RESULTS INQUIRY . . . SPECIAL ORDERS:”, received from Parole Agent Supervisor Dana Travis. Plaintiff has never received this illegal order in writing.
17. 730 ILCS 5/3-3-9(c) states that a person charged with violating a condition of MSR SHALL have a preliminary hearing. Plaintiff never received a preliminary hearing after her MSR was revoked from March 28, 2008 through March 31, 2008. Therefore, it was never determined if there was probable cause to revoke her MSR on March 28, 2008. The IDOC computer printout record for Plaintiff from Parole Agent Supervisor Dana Travis is devoid of a finding of violation of MSR.
18. 730 ILCS 5/3-3-7(d) states, only when an offender on MSR is charged with a violation of conditions of MSR, that the PRB may modify or enlarge the (statutory) conditions of MSR after a hearing with due process. Plaintiff was never notified of a hearing or allowed to be present during the hearings held by the PRB on May 28, 2008 and June 16, 2008 regarding her MSR, despite the fact her MSR was revoked from March 28, 2008 through March 31, 2008. Therefore, due process was denied Plaintiff, when special conditions of MSR were placed upon her by the PRB.
19. 730 ILCS 5/3-3-9(e) states that an offender charged with violation of MSR has the RIGHT to 1) appear and answer the charge; and 2) bring witnesses on his behalf. These rights have been denied Plaintiff to date.
20. 730 ILCS 5/3-5-1 states that if the PRB makes a determination that affects the length of confinement, the committed person and his counsel shall be advised of factual information relied upon by the respective Department or Board to make the determination. Plaintiff can be recommitted if she fails to cooperate with the illegal orders for special conditions of MSR, and the PRB decides she violated special conditions of MSR as illegally ordered. Therefore she is entitled to have copies of documents used to make the determination that an order for special conditions was required, as well as a transcript of the hearings during which special conditions of MSR were illegally ordered. She has never been given these documents.
B. Basic Statutory Construction Rules and Plain Language Interpretation in regards to Conflicting Statutes REQUIRE that PRB Requirements for Involuntary Mental Health Evaluation and Treatment SHALL Comply with Mandates of the MHDDC
21. The Illinois Code of Corrections, 730 ILCS 5/3-3-7(b), states that, “The Board may in addition to other conditions[agreed to by offender before release per 730 ILCS 5/3-3-7(c)] require that the subject: . . (2) undergo medical or psychiatric treatment or treatment for drug addiction or alcoholism.”
22. 730 ILCS 5/3-3-7(b) is in CONFLICT with the Illinois Mental Health and Developmental Disabilities Code (“MHDDC”). 405 ILCS 5, SPECIFICALLY REQUIRES DUE PROCESS and a COURT HEARING before a subject is subjected to involuntary treatment, the definition of which includes evaluation. This is because a person has a Fifth Amendment Constitutional liberty interest in being free from involuntary medical treatment.
23. Basic rules of statutory construction provide that when statutes conflict, specific provisions control over the general.
Hernon v. E.W. Corrigan Const. Co., 149 Ill. 2d 190, 172 Ill. Dec. 200, 595 N.E.2d 561 (1992);
First Bank of Oak Park v. Avenue Bank and Trust Co. of Oak Park, 605 F.2d 372 (7th Cir. 1979). Therefore, 730 ILCS 5/3-3-7(b) may not be used to order involuntary mental health evaluation because the more specific 405 ILCS 5 statute is controlling and mandates a court hearing and the right to a jury before ordering involuntary mental health treatment (defined by the MHDDC as including involuntary evaluation) , although it may be used if there is probable cause for order of involuntary drug addiction evaluation, treatment, and case management, as drug addiction in Illinois is not defined as a mental illness by the MHDDC, 405 ILCS 5.
24. The Illinois Administrative Code pertaining to corrections, 20 IAC 470.80, states that the PRB may refer a subject, who is identified as a substance abuser, to an agency for case management and drug testing. Plaintiff has never been identified as a substance abuser. In fact, she has been assessed by multiple experts in psychiatry and psychology as not being a substance abuser, including:
a. Dr. XXXX, a nationally renowned Forensic Psychiatrist from California who did an extensive evaluation of Plaintiff with 14 hrs of home observations and thorough review of medical and legal records in 2004;
b. Dr. XXXX, a nationally renowned Forensic Psychologist and the chief mediator for the U.S. Postal Service at the time, did extensive psychological tests, interviews of collaterals, and direct examination of Plaintiff, as well as reviewed legal and medical records in 2003 and 2004;
c. Plaintiff was involuntarily confined (not committed) at the UIC Psychiatry Ward for 13 days in 2005 by an illegal court order by Judge Pantle and they did extensive testing for organic brain disorder as well as extensive observation for psychiatric illness; and
d. Dr. XXXX, a senior psychiatrist at the Psychoanalytic Institute of Chicago and Northwestern University, has evaluated Plaintiff for the case in which she was wrongfully convicted and in which she was illegally denied the right for her to have him testify, and has provided psychoanalytic therapy in 2007 to help diminish symptoms of PTSD.
25. Plaintiff has never been adjudicated by any court as being subject to involuntary mental health treatment. All above psychiatrists have diagnosed Plaintiff as being unusually mentally stable under stress and suffering from no mental illness or personality disorder except for post-traumatic-stress disorder, exacerbated by the May 16, 2005 attack on her by CCDOC officer Sgt. Anthony Salemi, manifest by nightmares and flashbacks with non-violent symptoms and chronic low level depression without psychosis.
26. IAC Section 1610.80, “Conditions of Release,” states that: “Persons released under … mandatory supervised release . . . are subject to rules of conduct prescribed by the Board and any special conditions deemed appropriate by the Board in individual cases. Said conditions for release to other than discretionary parole will be set without an interview.” This Adminstrative Code does not grant the PRB a license to enlarge conditions of MSR after release without a finding of violation of conditions of MSR in a due process hearing. As noted above this section of the Illinois Administrative Code is in CONFLICT with the MHDDC, 405 ILCS 5, and therefore, due to basic statutory construction rules, is NOT Controlling, as the MHDDC is more SPECIFIC and therefore MUST be followed. This statute is in all other ways valid concerning NON-mental health issues including drug addiction.
27. As the PRB has failed to follow the MHDDC in providing Plaintiff due process, after release of Plaintiff, before enlarging conditions of MSR and illegally ordering involuntary mental health treatment, the PRB orders for special conditions of MSR, are legally NULL AND VOID ab initio.
C. Parole Agent Pork Dockery’s Misinterpretation of Void Orders for Special Conditions of MSR Amounts to Incompetence of Parole Agent and Her Harassment of Plaintiff
28. Parole Agent Victoria Pork Dockery (alias “PA Pork”), on June 25, 2008, ordered Plaintiff to report to “Safer Foundation,” in Chicago, for an “anger management evaluation and mental health evaluation,” by July 3, 2008. The Director of Safer Foundation in downtown Chicago, Ms.XXXX, on July 2, 2008, stated that Safer Foundation is an agency that helps ex-cons, particularly with drug problems, prepare for and obtain jobs, including drug abuse testing and monitoring, GED preparation, assistance with preparing resume and in preparing for interviews, and referrals to job sites, as well as case management concerning drug addiction. As an M.D., Ph.D., who is NOT a drug addict, Plaintiff is not in need of any assistance in this manner. Plaintiff is physically permanently handicapped and is “working” full-time without pay taking care of her disabled elderly father and his affairs, obtaining physical therapy since May 2008, due to her debilitated, emaciated, and weakened condition as a result of wrongful incarceration and medical neglect, scheduling a minor surgical heart procedure (radiofrequency ablation – kind of like an angiogram where they map the heart from within and burn the aberrant pathways), adjusting her medications in conjunction with advice from her numerous physicians to better control her severe unusual type of asthma and severe neurocardiogenic syncope disorders, writing her appeal of the wrongful conviction, litigating several civil rights, malpractice, and toxic torts pro se, as well as preparing for another last trial. It would be HIGHLY inappropriate to order her to get a job. Ms. XXXX told her their agency does not do mental health evaluations and it was not appropriate for the parole agent to refer Plaintiff to this agency. She left a phone message for Parole Agent Pork Dockery relating the same message on July 2, 2008.
D. Special Conditions of MSR Do NOT Comply with Statutory Mandate of Assisting Subject in Leading a Law-Abiding Life
29. There does not appear to be ANY reason whatsoever to have special conditions of MSR put on Plaintiff or to do ANY drug testing of her whatsoever. This would be harassment, intimidation, defamation, humiliation, and gratuitous annoyance with NO PURPOSE whatsoever regarding furthering her “adjustment to society”, or “assisting her in living a productive and law-abiding life,” which are statutorily required reasons for placing a convicted felon on special conditions of MSR. Plaintiff is already an honest, forthright, although outspoken, law-abiding citizen who has been wrongfully convicted, financially destroyed, defamed, and tortured by this corrupt and dysfunctional system of patronage appointees and incompetent and/or ignorant and inadequately trained IDOC staff, and who is 100 % dedicated and uncompromising in seeking vindication, compensation, and justice.
Argument30. If PRB illegal orders for anger management counseling and mental health conditions are enforced against Plaintiff’s will, Plaintiff will be deprived of her liberty interest in refusing medical evaluation and treatment. If Plaintiff refuses to comply with these illegal orders, Plaintiff will be subjected to further unjustified PRB hearings and sanctions, and deprived of her liberty without due process, while awaiting these hearings.
31. The injury cannot be redressed by an action at law for the reason that a direct appeal of the conviction will take longer than the time to enforce the illegal orders of the PRB. Also, the Plaintiff has already sent multiple letters to the IDOC Director, Deputy Directors, Chief of Parole Department, Parole Agent Supervisor, and Parole Agent, requesting a hearing with the PRB and a stay of the order until due process is granted, without ANY response to date. Therefore, administrative review has been exhausted.
32. Plaintiff will suffer irreparable injury unless an injunction is issued by this Court because she will irreparably have been denied due process and her liberty rights will have been denied.
33. The continuing policy and practice of the PRB and the IDOC in violating the MHDDC is against the public interest and this Court should grant class action to this complaint because it impacts all those persons released by the IDOC who have been involuntarily ordered to undergo mental health or anger management treatment, including evaluation, and medical or psychotherapy and counseling treatment, including evaluation, by denial of their due process rights that are statutorily guaranteed. All of these persons on MSR are subject to losing their liberty rights without due process. In the alternative, counsel should be appointed in the public interest and leave granted to amend complaint for class action purposes.
WHEREFORE, Plaintiff respectfully requests that:
1. The Court enter a temporary restraining order pursuant to Paragraph 5/11 101 of Chapter 735, ILCS, [or as the case may be, a preliminary injunction pursuant to Paragraph 5/11-102 of Chapter 735, ILCS] enjoining and restraining Defendants PRB and IDOC and their officers, agents, and employees, and each and all of them, from ordering mental health conditions, evaluation or treatment for Plaintiff and any person on MSR unless the mandates of the MHDDC are strictly followed, pending final determination of this cause and until the further order of this Court. This order will NOT bar VOLUNTARY mental health (including anger management) conditions, evaluation, treatment, or counseling agreed to, without coercion, by persons on MSR.
2. The temporary restraining order or preliminary injunction be granted immediately and without bond.
3. The temporary restraining order or preliminary injunction may be made permanent on final hearing and determination of this cause.
4. Plaintiff receives any other and further, or different, relief the Court may deem equitable and proper.
5. Costs of the action.
6. In the public interest, this Court appoint Attorneys to litigate this complaint as a class action, as a pro se litigant may have no standing to litigate as a class action, or in the alternative allow the Plaintiff to litigate this case as a class action with standby attorneys to be appointed by the Court.
Linda Lorincz Shelton, Ph.D., M.D.
Dated: July 7, 2008
[1] In fact, she had been assaulted and battered by Cook County Department of Corrections Sergeant Salemi on May 16, 2005. He falsified his records, and he knowingly wrongfully filed a criminal complaint against Plaintiff falsely alleging she attacked him, in retaliation for her complaining about the Cook County Department of Corrections violating her civil rights. She was wrongfully convicted because of a biased jury. Biased because of extreme Nifong-like prosecutorial misconduct by Assistant States Attorneys Andrew Dalkin and John Maher, and by outrageous denial of due process and abuse of judicial discretion by Judge Joseph Kazmierski, all of which grossly denied Plaintiff a fair trial. She was illegally sentenced to prison instead of probation, in violation of
Cunningham v. California, 127 S. Ct. 856 (2007), and the Statutes of the State of Illinois.
