Aimee Hankins v. Tim Lowe ( 2015 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 14-1751
    AIMEE LYNN HANKINS,
    Plaintiff-Appellant,
    v.
    TIM LOWE,
    Defendant-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 4:11-cv-04048-SLD-JEH— Sara Darrow, Judge.
    ____________________
    SUBMITTED APRIL 14, 2015 — DECIDED MAY 19, 2015
    ____________________
    Before POSNER, FLAUM, and ROVNER, Circuit Judges.
    POSNER, Circuit Judge. The question presented by this ap-
    peal (more precisely, the only possibly meritorious ques-
    tion—the plaintiff/appellant is pro se and her brief a scatter-
    shot) is whether the deliberate decision of a parole officer to
    delay a parolee’s release from parole beyond its termination
    date can give rise to a claim under 42 U.S.C. § 1983. So far as
    relates to this case section 1983 imposes civil liability on an-
    yone “who, under color of any statute, ordinance, regula-
    2                                                  No. 14-1751
    tion, custom, or usage, of any State or Territory or the Dis-
    trict of Columbia, subjects, or causes to be subjected, any cit-
    izen of the United States or other person within the jurisdic-
    tion thereof to the deprivation of any rights, privileges, or
    immunities secured by the Constitution.”
    The appellant, Aimee Hankins, having been convicted in
    Arkansas of felony battery, given three years of parole (ra-
    ther than a prison term) for the offense, and sentenced to
    prison in May 2006 for violating her parole, was re-released
    on parole in March 2007. She later moved to Illinois, and
    pursuant to the Interstate Compact for Adult Offender Su-
    pervision came under the supervision of the Illinois De-
    partment of Corrections. The Department assigned a parole
    officer named Tim Lowe to supervise her. He is the defend-
    ant and appellee in this case. The complaint alleges that she
    asked him when her parole would expire and that he re-
    fused to tell her, saying that Arkansas would determine
    when it expired and would revoke her parole if she asked
    the Arkansas authorities for the date.
    Her parole expired either in January 2010 or May 2012—
    we cannot determine which. The record contains two docu-
    ments prepared by the Interstate Commission for Adult Of-
    fender Supervision stating the date, and there has been no
    determination of which date is correct. But in February 2011
    Lowe informed her that her parole had expired. As this was
    before the later date (May 2012) on which her parole may
    have expired, the implication is that it had expired in Janu-
    ary 2010, the year preceding Lowe’s telling her that her pa-
    role had ended. If this timetable is correct, she was subjected
    to the restrictions imposed on her by the conditions of her
    parole for 13 months (January 2010 to February 2011) be-
    No. 14-1751                                                    3
    yond when her parole had actually ended. Those conditions
    included requirements that she obtain Lowe’s approval to
    leave the county she lived in or to spend the night away
    from home, that she accept home visits by Lowe or other of-
    ficers whenever they notified her of their desire to visit her
    at home, and that she attend counseling sessions.
    Parole is a form of custody. Jones v. Cunningham, 
    371 U.S. 236
    , 241–43 (1963); Cochran v. Buss, 
    381 F.3d 637
    , 640 (7th Cir.
    2004); White v. Indiana Parole Board, 
    266 F.3d 759
    , 763 (7th Cir.
    2001); Wilson v. Flaherty, 
    689 F.3d 332
    , 336 (4th Cir. 2012). As
    explained in such cases as Armato v. Grounds, 
    766 F.3d 713
    ,
    721 (7th Cir. 2014); Sample v. Diecks, 
    885 F.2d 1099
    , 1108–10
    (3d Cir. 1989), and Haygood v. Younger, 
    769 F.2d 1350
    , 1354–
    55 (9th Cir. 1985) (en banc), a state officer who unlawfully
    keeps a person in custody beyond the date at which he (in
    this case she) is entitled to be released imposes a form of
    cruel and unusual punishment, and thus violates the Eighth
    Amendment. A lawless extension of custody is certainly un-
    usual, and it is cruel in the sense of being imposed without
    any legal authority. Although obviously the restrictions im-
    posed on a parolee are less onerous than those imposed on a
    prison or jail inmate, the Supreme Court held in Jones v.
    
    Cunnngham, supra
    , 371 U.S. at 242–43, that a parolee who
    proves that his parole is unlawful is entitled to habeas cor-
    pus, implying a right to to obtain damages under section
    1983 if having finally been released from parole he can no
    longer benefit from habeas corpus. Lowe concedes that the
    conditions imposed on the plaintiff by her parole were suffi-
    ciently onerous to constitute cruel and unusual punishment
    if prolonged beyond the parole expiration date, especially
    (as we would be inclined to qualify his concession) if pro-
    4                                                  No. 14-1751
    longed significantly beyond that date, as alleged to have oc-
    curred in this case.
    The district judge nonetheless dismissed the case for fail-
    ure to state a claim, more specifically for failure to plead
    facts necessary to make the claim “plausible” within the
    meaning of Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    (2007),
    and Ashcroft v. Iqbal, 
    556 U.S. 662
    (2009). The judge’s discus-
    sion of the issue is confined however to one short paragraph,
    the gist of which is as follows: Hankins “alleges that Lowe
    told Hankins the date of her release was determined not by
    him, but [by] Arkansas officials, and Hankins never disputes
    the truth of this claim. She also credits Lowe with providing
    what notice—albeit delayed—she received of the alleged ex-
    tension of her supervision. These allegations—the only ones
    seemingly related to Lowe’s role in denial of due process—
    are more exculpatory than inculpatory” (record references
    omitted). The quoted statement is not responsive, as Lowe
    implicitly concedes by shifting ground and arguing to us
    that the complaint is deficient in two other respects: Hankins
    “has not shown that Lowe had the requisite mental state”
    (what some cases call “deliberate indifference,” meaning
    knowing of a serious risk but refusing to do anything to pre-
    vent it from materializing though prevention would be fea-
    sible, thus making the term synonymous with “reckless-
    ness”), and that “he had no power to adjust her outdate”
    (that is, the date at which her parole expired). That’s actually
    part of the “mental state”—it is not culpable to be unable to
    prevent a risk and, knowing one is unable to prevent it, to
    make no attempt to do so.
    But as a parole officer Lowe must have realized that he
    had to find out when his parolee’s parole would expire,
    No. 14-1751                                                  5
    since she didn’t know and he had forbidden her to inquire of
    the Arkansas authorities. A phone call by him to Arkansas
    would have answered that question, making this a classic
    case of knowledge of a preventable risk coupled with refusal
    to do anything however trivial (such as a phone call) to pre-
    vent it from materializing. He thus was guilty of deliberate
    indifference or its equivalent, recklessness. As for “adjusting
    [Hankins’s] outdate,” of course Lowe had no authority to do
    that. But she wasn’t asking for an adjustment, just for infor-
    mation—when her parole would expire. So far as we can tell
    from the pleadings—and pleadings are all we have—Lowe
    deliberately withheld essential information that he was re-
    quired to obtain, and could readily have obtained and given
    her.
    Thus far we’ve assumed that her parole expired in 2010
    and not 2012; should it be determined on remand that it ex-
    pired in 2012, her case should be dismissed. Lowe asked the
    district court to take judicial notice of the 2012 expiration
    date and thus dismiss the suit. The judge did not rule on that
    request, and because there are conflicting documents in the
    record the issue cannot be resolved on the pleadings.
    The judgment is reversed insofar as the Eighth Amend-
    ment claim is concerned, and the case remanded for further
    proceedings, consistent with this opinion, concerning that
    claim. In all other respects the district court’s judgment is
    affirmed.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.