Haines v. Kerner Appendix
Public Court Documents
May 28, 1971
Cite this item
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Brief Collection, LDF Court Filings. Haines v. Kerner Appendix, 1971. 1b99971b-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6e6286ea-ab30-463c-b6dd-dfdc6d18253e/haines-v-kerner-appendix. Accessed June 17, 2025.
Copied!
(Hour! of t t y Ittitrh t̂ataa
October T e r m , 1970
N o. 5940
F ran cis H a in e s ,
Petitioner,
Otto J . K e r n er , F orm er Governor, Sta te of I l l in o is ,
et AL.
Respondents
ON w r it o f certio ra ri to t h e u n it e d sta tes court o f
APPEALS FOR THE SEVENTH CIRCUIT
PETITION FOR CERTIORARI FILED SEPTEMBER 17, 1970
CERTIORARI GRANTED MARCH 8, 1971
(Emtrt uf tlye
Petitioner,
Otto J . K e r n er , F ormer Governor, State of I l lin o is ,
e t AL.
Respondents
on w r it o f c ertio ra ri to th e u n it e d states court of
October Te r m , 1970
No. 5940
F rancis H a in e s ,
ormer Governor,
e t AL.
APPEALS FOR THE SEVENTH CIRCUIT
I N D E X
Page
Record from the United States District Court for the Eastern
District of Illinois
Docket Entries __________________________________ 2
Complaint, filed July 1, 1968 ----------------------------------- 7
Motion to dismiss and supporting memorandum, filed
July 23, 1968 ___________________________________ 20
Motion to amend motion to dismiss, filed November 8,
1968 ___________________________________________ 23
Order denying motion for default and allowing motion
to amend motion to dismiss, dated November 8, 1968 .. 25
Motion for leave to file admissions and interrogatories,
with affidavit and notice, filed November 15, 1968 ---- 27
Page
Record from the United States District Court for the Eastern
District of Illinois—Continued
Request for admissions and interrogatories, filed No
vember 21, 1968 __ - .........-__________________ 3 1
Order dismissing complaint, entered December 19, 1968 .. 58
Order denying motion for hearing, entered January 8
1969 --------------------------------------------------------------- 60
Motion for leave to file and prosecute appeal in forma
pauperis, filed January 31, 1969 _________________ 61
Notice of appeal to the United States Court of Appeals,
filed February 13, 1969 _________________________ 62
Proceedings in the United States Court of Appeals for the
Seventh Circuit __________________________________ 65
Opinion, Enoch, J., May 25, 1970 1________ ;_______ ________ 65
Judgment, May 25, 1970 ______ ____________ ___________ 67
Order denying rehearing, June 19, 1970 __________________ 68
Order granting motion for leave to proceed in forma pauperis
and granting petition for writ of certiorari _________ ___ 69
11 INDEX
1
Civ il D ocket
UNITED STATES DISTRICT COURT
CV 68-83-D
Jury demand date: July 1, 1968
F rancis H a in e s , p l a in t if f
vs.
Otto J . K e r n er , Former Governor, State of Illinois, Chi
cago, Illinois; Ross V. R a n d o lph , Director of Public
Safety, State of Illinois, Springfield, Illinois; Max P.
F rye , Warden; Le w is C. Le n c e , Assistant Warden;
J e f f ie B iggs, Assistant Warden; P aul V. Sy m pso n ,
Senior Guard Captain; R ussell L e n c e , Guard Cap
tain; E. R ogers, Guard Lieutenant; D onald Ge n t s c h ,
Record Clerk; W illia m S h e e t s , Commissary Officer;
P aul T. D u n c a n , Guard, all of the Illinois State Pen
itentiary, Menard, Illinois, 62259, d efendants
For Plaintiff:
Francis Haines, Pro Se, Register No. 16348, Illinois
State Penitentiary, Menard, 111. 62259
For Defendants:
Jeffie Biggs, Paul V. Sympson, & Russell Lence, Otto J.
Kerner, Ross Y. Randolph, Max P, Frye, Lewis
Lence, E. Rogers, Donald Gentsch, William Sheets
and Paul Duncan: John Sorrentino, Asst. Atty. Gen.,
William G. Clark, Atty. Gen., State of Illinois, 160
N. LaSalle St., Chicago, Illinois 60601
2
Statistical Record Costs Date
J.S. 5 mailed July, 1968
J.S. 6 mailed
Basis of Action: Civil Rights-
T.42, USC, Secs. 1981, 1983
& 1985.
Action arose a t : Menard, 111.
Clerk Forma Pauperis 2/13/69
Marshal
Docket fee
Witness fees
Depositions
Name or
Receipt No. Rec. Disb.
F. Haines 5.00 5.00
Notice Appeal
GS 2411
CD# 29D
2/17/69
Date Proceedings
1968
June 11 Petition to file civil complaint in forma pauperis
received and handed to the Court for considera
tion.
July 1 Motion for Leave to File and Prosecute in Forma
Pauperis and Other Relief, filed.
July 1 Order Granting Motion for Leave to File and Prose
cute in Forma Pauperis, entered. (WISE, J)
Certified copies to Francis Haines, Atty. General
William Clark.
July 1 Complaint filed.
July 1 Motion for Appointment of Guardian Ad Litem filed.
July 1 Summons issued and mailed for service, together
with copy of Order showing case filed in forma
pauperis.
July 10 Marshal’s return of service made on July 3, 1968
filed. (Service not made on defendants Kemer
and Randolph)
July 15 Marshal’s return of service on defendant Otto J.
Kerner, same served 7/8/68.
3
Date
1968
July 23
Aug. 2
Aug. 2
Aug. 2
Aug. 2
Aug. 2
Aug. 2
Sept. 6
Oct. 25
Oct. 25
Oct. 25
Nov. 8
Proceedings
Motion to Dismiss and Supporting Memorandum, on
behalf of Defendants Otto J. Kerner, Ross V.
Randolph, Max P. Frye, Lewis Lence, E. Rogers,
Donald Gentsch, William Sheets and Paul Dun
can, filed.
Motion for Leave to Proceed on Used Paper, filed.
Notice and Proof of Service of filing answering
brief, filed.
Answering Brief on Motion to Dismiss, filed.
Notice and Proof of Service of Ancillary Petition
for Writ of Injunction, filed.
“Motion for Leave to File and Prosecute Ancillary
Petition for Injunction in Forma Pauperis and
Upon Used Paper Such as This” filed, with forma
pauperis affidavit.
Copies of all above pleadings received and forward
ed to Attorney General William G. Clark, Spring-
field, 111.
Marshal’s return on service of summons, service
made on Ross V. Randolph, Director of Public
Safety, State of 111., on 9/4/68.
Notice and Proof of Service filed.
Motion for Default Judgment Against Named De
fendants, with Affidavit & Memo., filed. Defts.
named in Motion are Jeffie Biggs, Paul Sympson
& Russell Lence.
Copies of above Notice, Motion, Affidavit and Memo,
received and forwarded to Attorney General Wil
liam G. Clark.
Motion to Amend Motion to Dismiss filed. Motion
to Dismiss should also be the motion of defend
ants Biggs, Sympson and Lence.
4
Date
1968
Nov. 8
Nov. 15
Nov. 15
Nov. 20
Nov. 20
Nov. 20
Nov. 20
Proceeding’s
Order Denying Motion for Default and Allowing
Motion to Amend to Dismiss, entered. (WISE, J.)
IT IS HEREBY ORDERED that the motion for
default be, and is hereby denied; IT IS HEREBY
FURTHER ORDERED that the motion to amend
motion to dismiss be, and is hereby, allowed; IT
IS HEREBY FURTHER ORDERED that the
plaintiff is granted an addiitonal 20 days to file
any additional or supplemental brief to the motion
to dismiss, and the defendants are to answer said
brief within 20 days after the filing of any supple
mental brief. Certified copies to plaintiff and to
William G. Clark, Atty. General of 111.
Notice, Proof of Service, and Motion for Leave to
File Interrogatories Against Certain named De
fendants pursuant to Rule 38, Federal Rules of
Civil Procedure, and Motion for Leave to File
Admissions against Certain Named Defendants,
pursuant to Rule 36, Federal Rules of Civil Pro
cedure, with affidavit attached, filed.
Copy of Notice, Proof of Service, and above motions
and affidavit mailed to Wm. G. Clark, Attorney
General of the State of Illinois
Motion for Leave to Proceed on Used Papers and
affidavit, filed.
Supplemental Brief in Opposition to the Motion to
Dismiss, filed.
Notice and Proof of Service of Motion, Affidavit and
Supplemental Brief, filed.
Mailed copies of Notice and Proof of Service, Mo
tion and Affidavit, and Supplemental Brief, to
Wm. G. Clark, Attorney General of the State of
Illinois
5
Date Proceedings
1968
Nov. 21 Request for Admissions under Rule 36, Federal
Rules of Civil Procedure and Request for Inter
rogatories pursuant to Rule 33, Federal Rules of
Civil Procedure, directed to Defendant Ross V.
Randolph, filed.
Nov. 21 Request for Admissions pursuant to Rule 36, Fed
eral Rules of Civil Procedure and Request for
Interrogatories pursuant to Rule 33, Federal
Rules of Civil Procedure, directed to Defendant
Max P. Frye, filed.
Nov. 21 Request for Admissions Pursuant to Rule 36, Fed
eral Rules of Civil Procedure, and Request for
Interrogatories pursuant to Rule 33, Federal
Rules of Civil Procedure, directed to Defendant
Russell Pence, filed.
Nov. 21 Request for Admissions pursuant to Rule 36, Fed
eral Rules of Civil Procedure, and Request for
Interrogatories pursuant to Rule 33, Federal
Rules of Civil Procedure, directed to Defendant
William Sheets, filed.
Nov. 21 Request for Admissions pursuant to Rule 36, Fed-
Dec. 9
eral Rules of Civil Procedure and Request for
Interrogatories pursuant to Rule 33, Federal
Rules of Civil Procedure, directed to Defendant
Donald Gentsch, filed.
Motion for Leave to Present Slip Opinion in Wright
v. McMann, No. 31023 . . . . and Short Discussion
of Pertinent Provisions Thereof, filed, with Notice
and Proof of Service.
Dec. 9 Affidavit in Support of Motion, filed. Copy of Mo
tion and Affidavit and Notice sent to Atty. Gen
eral William G. Clark, at Chicago, Illinois.
Dec. 20 Order entered December 19, 1968, allowing Motion
to Dismiss and dismissing cause of action (WISE,
J) Copies to Plaintiff and to Attorney General,
Chicago, 111. JS # 6 issued.
6
Date
1969
1/ 7/69
1/ 8/69
1/31/69
2 / 4/69
2/13/69
2/13/69
2/13/69
2/13/69
2/13/69
Proceedings
Notice and Proof of Service, Motion to Reconsider
and Set Aside the Order of the Court, entered
December 19, 1968, Dismissing the Complaint
Upon Allowance of Defendants Motion to Dis
miss, filed. Copy mailed to Attorney General,
Chicago, 111.
Order Denying Motion for Rehearing entered—
Ordered that the motion for reconsideration and
setting aside of order dismissing complaint en
tered Dec. 20, 1968 is denied (Wise, J.) Copies
mailed to Mr. Haines and Attorney General,
Chicago, 111.
Motion for Leave to File and Prosecute Appeal in
Forma Pauperis, Pursuant to Title 28, USC, Sec.
1915(a) and Rule 75(a), FECP, with Affidavit
in Forma Pauperis in Support of Motion for
Allowance of Appeal in Forma Pauperis, filed and
handed to the Court for consideration, with
Notice and Proof of Service, Directions to the
Clerk for Service of Notice of Appeal, Notice of
Appeal, and Praecipe for Transcript of Record
on Appeal attached thereto.
Order Denying Leave to Appeal in Forma Pauperis,
entered. (WISE, J) Certified copies to Mr. Haines
and to Attorney General of State of Illinois.
Notice of Appeal filed.
Praecipe for Transcript of Record on Appeal filed.
Directions to the Clerk for Service of Notice of
Appeal filed.
Notice and Proof of Service, sent by Plaintiff
Frances Haines, filed.
Clerk’s Certificate of Maiilng Notice of Appeal, filed.
7
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS.
Civil Action No. CV68-83D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
vs.
Otto J . K e r n er , Former Governor, State of Illinois, Chi
cago, Illinois; Ross V. R a n d o lph , Director of Public
Safety, State of Illinois, Springfield, Illinois; Max P.
F rye, Warden; Le w is C. Le n c e , Assistant Warden;
J e f f ie B iggs, Assistant Warden; P aul V. Sy m pso n ,
Senior Guard Captain; R ussell Le n c e , Guard Cap
tain; E. R ogers, Guard Lieutenant; D onald Ge n t s c h ,
Record Clerk; W il l ia m Sh e e t s , Commissary Officer;
P a ul T. D u n c a n , Guard, all of the Illinois State Pen
itentiary, Menard, Illinois, 62259, d efendants
Co m pla in t—filed July 1, 1968
(Trial by Jury Demanded of All Issues so Triable)
Francis Haines, complaining of the defendants states:
The action arises under the Constitution and Laws of
the United States, and in particular as follows: United
States Constitution, Eighth and Fourteenth Amendments,
thereto; United States Code, Title 42, Sections 1981,
1983 and 1985(2); and the decisions of the United States
Supreme Court in construing them.
The Jurisdiction of this Court is specifically invoked
as follows:
A— To recover damages for the deprivation, under
color of State Law, of rights, privileges and immunities
guaranteed and secured by the Constitution and Laws
of the United States, under the guise of regulation, eus-
8
tom or usage, pursuant to Title 28 U. S. C. Section 1343
(3) and Title 42 U. S. C. Section 1983.
B— To recover damages for the deprivation, by reason
of a conspiracy, of rights, privileges and immunities,
guaranteed and secured by the Constitution and Laws
of the United States, pursuant to Title 28 U. S. C. Sec
tion 1343(1) and Title 42 U. S. C. Section 1985(2)
C— Absent diversity of citizenship and jurisdictional
amount, pursuant to:
Hague v. C. I. 0., 307 U. S. 496;
Douglas v. Jeanette, 319 U. S. 157.
D— To inquire into prison rules and the internal disci
pline of the Illinois State Penitentiary, Menard, Illinois.
Cooper v. Pate, 378 U. S. 546;
Cooper v. Pate, (CCA 7) 382 F. 2nd 519;
Wright v. McCann, (CCA 2) #31023, F. 2nd.
Gordon v. Garrson, (E. D. 111.) 77 Fed. Supp. 477;
Application of Middlebrooks, (D.C. Cal.) 88 Fed.
Supp. 943;
Cf. United States v. Jones, (CCA 5) 207 F. 2nd. 785.
E— Of the defendants residing without the Eastern
District of Illinois, Title 28 U. S. C. Section 1393(2)
F— For a declaration of the rights privileges and im
munities of the plaintiff, Title 28 U. S. C. Section 2201.
The cause of action has arisen in the past two years.
Plaintiff is a natural born citizen of these United
States, born at Blairstown, Iowa, June 1, 1902; and
has served in the United States Army as such, Army
Serial Number 721, 839; and is now confined in the
Illinois State Penitentiary, Menard, Illinois, as No. 16348.
The defendants are officers and employees of the State
of Illinois, respectfully as follows:
A— The defendant Kemer, between the dates of March
10 and May 19, 1968, was duly elected Governor of the
State of Illinois.
B— The defendant Bandolph is the duly appointed Di
rector of Public Safety of the State of Illinois.
9
C— The defendants Frye, Lewis C. Lence, Jeffie Biggs,
Paul Y. Sympson, Russell Lence, E. Rogers, Donald
Gentsch, William Sheets, and Paul T. Duncan, are em
ployees of the Department of Public Safety of the State
of Illinois and in the capacities set forth in the title
hereof.
D— The defendants Max P. Frye, Lewis C. Lence, Jeffie
Biggs, Paul V. Sympson and Donald Gentsch, are mem
bers of the Progressive Merit System of the Illinois State
Penitentiary, Menard, Illinois, and in full charge of the
application thereof.
At all times hereinafter complained of the defendants
were acting in their official capacities, and under color
of state law, regulation, custom or usage, and by virtue
of their official positions, deprived the plaintiff of his
rights, privileges and immunities guaranteed and secured
by the Constitution and Laws of the United States, and
the decisions of the United States Supreme Court in
construing them.
That at divers times subsequent to and including
March 10, 1968, the defendants herein conspired, each
with the others or adopted the acts of the others, for the
purpose of impeding, hindering, obstructing and defeat
ing the due course of Justice in the State of Illinois, with
intent to deny the plaintiff of his rights, to be treated in
accordance with due process of law and to deny him the
equal protection of the law, that the acts set forth here
inafter, in accordance with the said conspiracy, were will
ful and malicious, and designed to discriminate against
the plaintiff and deprive him of his rights, privileges
and immunities guaranteed and secured by the Constitu
tion and Laws of the United States, and in particular
as follows:
A— To be free from Cruel and Unusual Punishments
as secured by the Eighth Amendment, and Section 1,
Fourteenth Amendment, United States Constitution.
B— To Due Process of Law as secured by the Con
stitution of the United States, Section 1, Fourteenth
Amendment.
10
C— To Equal Protection of the Laws as secured by
the Constitution of the United States, Section 1, Four
teenth Amendment.
D— To the full and equal benefits of all laws and
proceedings for the security of persons as guaranteed
and secured by Title 42 U. S. C. Section 1981.
E— To be free from deprivation, under color of state
law, regulation, custom or usage, of fights, privileges and
immunities guaranteed and secured by the Constitution
and Laws of the United States, Title 42 U. S. C. Sec
tion 1983.
F— To be free from deprivation, by reason of any con
spiracy, or rights, privileges and immunities guaranteed
and secured by the Constitution and Laws of the United
States, and in particular the right to the due course of
Justice in the State of Illinois, Title 42 U. S. C. Sec
tion 1985(2).
C— The right to be tried by due process of law, and if
found guilty, to be sentenced and punished in accordance
with the Laws of the State of Illinois, Screws v. United
States, 325 U. S. 91; Williams v. United States, 341
U. S. 97.
The Constitution of the State of Illinois, (1870) Ar
ticle II, guarantees the following as being within the
due course of Justice in the State of Illinois.
‘2. No person shall be deprived of life, liberty or
property without due process of law.
“3. The right to trial by jury as heretofore enjoyed,
shall remain inviolate.
“8. No person shall be held to answer for a criminal
offense, unless on indictment of a grand jury, except
in cases where the punishment is by fine, or imprison
ment otherwise than in the penitentiary.
“9. In all criminal prosecutions the accused shall
have the right to appear and defend in person and
by counsel, to demand the nature and cause of the
accusation; to have a copy thereof; and to have
11
process to compel the attendance of witnesses in his
behalf; and a speedy public trial by an impartial
jury of the county or district in which the of
fense is alleged to have been committed.
“10. No person shall be compelled in any criminal
case to give evidence against himself, or to be put in
jeopardy twice for the same offense.”
The said constitutional provisions in Illinois are supple
mented by the provisions of the Illinois Revised Statutes,
1967, Criminal Law and Procedure, Chapter 38, Division
III, Title I to VII, pages 1590 to 1613, governing trial
procedures in criminal cases.
The Illinois Revised Statutes, 1967, Chapter 38, Divi
sion II, Article 12.1 Sections 2 to 6, defines the crime of
Assault and Battery and sets the legal penalties therefore.
The Illinois Revised Statutes, 1967, Chapter 38, Divi
sion I, Article 25-1, Sections 25-1(3) states that an as
sembly of two or more persons without authority of the
law, for the purpose of exercising correctional powers
over any supposed violation of the law, constitutes mob
action and is a misdemeanor.
By the Act of June 29, 1885, it was provided that the
several Courts of Will County, Illinois, had cognizance of
all crimes committed in the Illinois Penitentiary. Such
act was prior to Menard, but subsequently the Illinois Re
vised Statutes, 1949, Chapter 108, Paragraph 108, gave
cognizance to courts in other counties in which contained
penitentiaries.
The Legislative History of the use of Solitary Confine
ment in Illinois as a means of penal discipline is as
follows:
A— Act of January 6, 1827:
“Sec. 13: The said Warden, and other officers, agents,
and servants, shall each of them have power to order
any convict to solitary confinement, for misbehavior,
refractory conduct, idleness, negligence, in perform
ing their daily task, impertieent or improper lan
guage, or breach of any of the rules and regulations;
and shall immediately report the same to the arden,
12
and the Warden shall punish such convict therefore,
by solitary confinement, for any term not exceeding
thirty days ,or many discharge the said convict from
the imprisonment ordered by the said Warden, officer,
agent or servants.”
B— By an Act of 1867, Sessions Laws, page 31, Illinois
Statutes 1868, Section 37, Chapter 81, it was provided in
the event that unusual punishment was to be inflicted it
should be solitary confinement. Such reads:
“It shall not be lawful in said penitentiary to punish
any convict by whipping in any case whatsoever, if,
in the opinion of the Warden, it shall be deemed nec
essary in that case to inflict unusual punishment in
order to produce the entire obedience and submission
of any convict, said Warden shall have power to pun
ish said convict by solitary confinement in a dark cell
and deprivation of food except bread and water until
such convict shall be reduced to submission and obedi
ence.”
C— By the Act of July 1, 1871, Illinois Revised Statutes,
1925, Chapter 108, Section 37, it was provided:
“37. It shall not be lawful in said penitentiary to use
any cruel or unusual mode of punishment or to punish
any convict by whipping whatsoever.”
By the provisions of the Illinois Revised Statutes, 1949,
Chapter 108, Paragraphs 76 to 79, to prison doctor was
required to examine all convicts regarding their physical
condition and regarding their ability to work and to classi
fy them into three classes or grades, first, second and
third, nothing being said therein regarding disciplinary
powers.
The current Illinois Revised Statutes, 1967, Chapter
108 paragraphs 76 to 79, also provide for classification
into three classes or grades, first, second and third.
On or about April 2, 1968, the defendant Gentach look
ed at such above provisions and slammed the book shut
before plaintiff.
The defendants Frye, Lewis C. Lance, Jeffie Biggs,
Paul V. Sypmpson and Donald Gentsch, comprise the
13
Membership of the Progressive Merit System Board of
the Illinois State Penitentiary, Menard, Illinois, and all
that is contained in the current Rule Book pertaining to
such is as follows: (Good Time table omitted.)
“PROGRESSIVE MERIT SYSTEM.
“A ‘Progressive Merit System’ for the purpose of
encouraging and rewarding good conduct and in
dustry in the Division of the Illinois State Peniten
tiary has been adopted by the Department of Public
Safety.
“Under this system prisoners serving indeterminate
sentences who are denied parole and their cases con
tinued to future dates for further consideration may
by good conduct and industry earn ‘Merit Time’
and thus advance the dates of review of their cases.
“In the event you receive a demotion you will lose a
portion or all of your merit time earned towards a
dated set,
“Merit Time is applied only to those continuances
handed down by the Parole Board specifying a cer
tain date. You cannot earn merit time on an un
dated continuance.
PROMOTIONS.
“In the penitentiary there is a grade system con
sisting of three grades. These grades are “A” “B”
and “C”.
“On admission the inmate is placed in Grade “A”
and while in Grade “A” may earn merit time. If
an Inmate’s behavior is unsatisfactory he may be
demoted to Grade “C” which will result in a loss of
privileges for a period of one year and cannot earn
merit time while in Grade “C”. In the event of de
motion you must spend one year in “C” Grade, you
are promoted to “B” Grade where you remain for
one year before going to “A” Grade. No merit time
can be earned in Grade “C”. You may earn five
14
days per month in “B” Grade and ten days per
month in “A” Grade.
“In the event an inmate receives a dated continu
ance from the Parole Board his next board date will
be computed according to the following chart.’ ”
The facts of which plaintiff complains are as follows:
On March 10, 1968, plaintiff and two other inmates,
Moore No. 30925 and Doherty No. 33371, were assigned
to what- is known in Menard, as the Inside Yard Gang.
The defendant Paul T. Duncan was officer in charge of
such assignment.
Plaintiff and these other two inmates engaged in an
argument in which it seemed to plaintiff that Inmate
Moore was urging and inciting inmate Doherty against
plaintiff. Several times it was said by both of these in
mates that the “Young Blood” was taking over and that
the “Old Blood like the plaintiff was done. Both of these
men are approximately thirty years of age.
Plaintiff is sixty-six (66) years of age his next birth
day and is approximately thirty (30) percent perma
nently disabled due to the following foot- injuries: Left
foot-—2nd. 3rd and 4th Cuboid Bones and 3rd Meta
tarsal fractured, which resulted in an Ankylosis in the
Cuboid Bones. Right foot—vertical fractures in the heel
bones, discernable only by an X-Ray in a specific position
of the foot. He was awarded compensation in a hearing
before the Illinois Industrial Commission for these in
juries.
After this argument had proceeded for a time plaintiff
obtained an Inmate Pass from the Defendant Duncan
to go and inspect a pile of cinders to see if it had thawed
sufficiently or whether a pick was needed to breaking and
loading on a truck. He also took a No. 2 long handled
shovel.
He inspected the pile of cinders and found it needed
a pick and returned to the Yard Gang Shack. Upon his
return he inspected the shovel and found it had a clod of
dirt in the heel. Immediately outside the door he banged
the shovel on the concrete and dislodged this dirt.
15
When he entered the Yard Gang Shack Doherty and
Moore resumed this argument and during this period
Moore was very emphatic that the “Young Blood” such
as him were taking over and that the plaintiff had better
watch out or he would be hurt. Plaintiff told both of
these men that they could hop on at any time they felt
like it and he had never run and did not intend to start
then. At this time the plaintiff was in the Yard Gang
Showers, which is about Fifteen (15) Feet long and
four (4) feet wide, with a concrete block wall on one
side of it about three (3) feet high.
After plaintiff entered the bath room these other in
mates approached him in a threatening manner and re
sumed the argument. One of the two men asked him if
he wanted to start something, plaintiff thinks it was
Doherty. He then hit Doherty on the head with the
shovel, inflicting cuts on his head.
When plaintiff hit Doherty Moore grabbed the shovel
and threw it out from the bath room and then plaintiff
and Moore had a scuffle. At this time defendant Duncan
became aware of the trouble. He had been in the office,
about fifteen (15) feet away and called out. This Moore
broke off the scuffle and said what is the matter with
you old man.
Defendant Duncan took Doherty into the back room
to wash the blood from Doherty’s head and during the
periods of his absence Moore kept making dire and fore
boding threats of the consequences of plaintiffs acts.
He was told that he could resume the matter any time
he choose.
Inmate Orlando, No. 34527, witnessed these eevnts
subsequent to plaintiff’s hitting the shovel on the con
crete.
Subsequently the defendant Rogers came and walked
plaintiff to what is known in the institutional vernacular
as the hole or solitary confinement, which in recent years
the officials call isolation.
Defendant Rogers took plaintiff before the defendant
Russell Lence who was disciplinary officer that day.
Plaintiff refused to explaine his actions other than to
say he had hit Doherty with the shovel. He was locked
16
in an Isolation Cell until a report could be had from
defendant Duncan.
When this report was had defendants Lence and
Rogers called plaintiff before them again and read the
report to him. Plaintiff objected to statements of Dun
can that he had hit the shovel on the Yard Gang Shack
floor and refused to discuss statement of Duncan that he
had engaged with the other two men. Defendant Lence
wanted to know why the plaintiff would hit Doherty
and stated that it had been twenty-eight (28) years
since plaintiff had been in the hole. When plaintiff re
fused to talk to these officers he was given fifteen (15)
days punishment, from March 10, to March 25, 1968.
This isolation, hole or solitary confinement consists of
dark cells and the only difference plaintiff could see in
the intervening twenty-eight (28) years between his
trips to such were as follows: he was given three (3)
blankets instead of two (” ) to sleep on a concrete floor;
there had been a toliet installed instead of toilet buckets
formerly used; that he received (2) slices of bread every
morning and evening, along with a noon meal, instead of
the four (4) slices of bread formerly received.
There was no articles of hygiene furnished him and
his false teeth became so rancid he had to leave them
out. No towel or soap was furnished.
On March 25, 1968, plaintiff was taken from the hole
and taken to the cell house to pack up to move. He then
received a grade demotion slip which stated he had been
demoted to “C” Grade, which was dated March 12, 1968
for his violation of the rules. No hearing before the
Progressive Merit Board was held.
On March 27, 1968, plaintiff went to the inmates Com
missary to get needed articles and was told by inmate
Bond, No. 32163, that he could not trade because he was
in “C” Grade, that he had traded on March 6, 1968.
When plaintiff said he would take the matter to the
courts he was laughed at and told to go ahead.
This inmate Bond is the defendant Sheets so-called
right hand man and he places inmates Balances on their
Commissary Slips although the rules, Rule 5, Commis
sary Rules, states in part as follows:
17
“You will file past to Commissary Officer with your
order in your hand, and after he has placed your
balance on same, put your prints on the order in
two places. * * *”
This is all the notification that plaintiff has received
from any officials that he had lost his privileges and to
date the priveleges lost are not known to him.
Plaintiff later wrote a letter of complaint to the de
fendant Lewis C. Lence, stating that he had a definite
sentence of life, that according to the Progressive Merit
System such only applied to indeterminate sentences;
that he could not earn any good time or merit time there
under and that he though he should not be punished
under a system which contained no benefits for him.
Several days later, on or about April 2, 1968, defend
ant Gentsch called plaintiff to his office in regards to
the letter to Defendant Lence. At this time plaintiff
again objected to the application of the Merit System
Rules against him, stating that he had served twenty-
eight (28) and when they gave him good time for such
period he would accept “C” Grade.
Defendant Gentsch pulled out a Ledger Book, fourteen
(14) inches long, eight and a half (8%) inches wide
and about three and a half (3 (4) inches thick, and
opened it to a rule which he read and which stated any
inmate could be put in “C” Grade. This rule is not in
the inmates rule book.
Plaintiff objected that the provisions of the Illinois
Revised Statutes, Chapter 108, Paragraphs 76 to 79
which required classification into three classes or grades.
First, Second and Third. The defendant opened a stat
ute to such sections to such law and plaintiff called his
attention to such. He closed the book before plaintiff
could read the context.
Plaintiff said he would take the matter to the courts
and defendant Gentsch humorously told him to do so.
Plaintiff has never been officially told by any officials
of the Illinois State Penitentiary, Menard, Illinois, of
the privelegs he was to be deprived of by his demotion
to “C” Grade other than that by inmate Bond and there
is nothing in the Rule Book concerning such.
18
Within the past two (2) years four inmates of the
Illinois State Penitentiary, Menard, Illinois, have been
tried for murder committed in the Inmates Dining Room,
indicted in Randolph County and trial held in Sangamon
County, Illinois; at least one (1) inmate was tried in
Randolph County for a Prison Escape; and each of the
said defendants have full knowledge of such trials.
The plaintiff has been deprived of his right to trial by
the due course of Justice in the State of Illinois, which
requires in part; notice and cause of the accusation;
trial before a court of competent jurisdiction; right to
aid of counsel; trial before an impartial jury; a sentence
according to the laws of the State of Illinois; the right
to make a defense against the charge; the right of an
appeal if he so desires; and the acts of the defendants
were under the color of state law, regulation, custom
and usage and were in concert for the end and purpose
of discriminating against him. and to coerce him with
punishments not permitted by the Laws of the State of
Illinois.
The plaintiff has been punished with the imposition
of Cruel and Unusual Punishment not permitted by the
Laws of Illinois by the said defendants acting under
color of state law, custom, regulation or usage, and such
acts were in concert for the end and purpose of discrimi
nating against him.
_ The plaintiff has been arbitrarily classified by impo
sition of the so-called Progressive Merit System, under
which he can receive no benefits, and which is not listed
in any of the Penal Provisions contained in the Laws of
Illinois as a. punishment for crime, and that the acts of
the said defendants were under color of state law, cus
tom, regulation and usage, and such acts were in con
cert for the end and purpose of depriving him of due
process and equal protection of the laws.
The plaintiff suffered great physical anguish and pain
due to his feet and circulatory trouble in his legs due to
being forced to sleep on the concrete floor.
The defendant Randolph, as Director of Public Safety
of' the State of Illinois, has full and complete authority
over all defendants excepting Kerner, and makes the
19
rules and regulations pertaining to the Illinois State
Penitentiary, under which the above acts took place.
The defendant Kerner, as Chief Executive Officer of
the State of Illinois, was superior to all other defendants
and could have cured all defects in their actions by exec
utive order.
WHEREFORE THE PLAINTIFF DEMANDS,
A) Damages to the sum of Two Hundred and Fifty
Thousand ($250,000.00) Dollars as punitive and exem
plary damages for the deprivation of plaintiff’s rights
under color of state law, regulation, custom and usage.
B) Damages to the sum of Two Hundred and Fifty
Thousand ($250,000.00) Dollars as punitive and exem
plary damages for the deprivation of plaintiff’s rights
by means of a conspiracy.
C) A Declaration of the Rights, Privileges and Im
munities of Plaintiff in the circumstances.
D) Such other and further relief as Justice and Equity
may require in the premises.
Respectfully submitted
,/s/ Frances Haines
Plaintiff
Reg. No. 16348
Box 711
Menard, Illinois
20
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
No. CV-68-83D
[File Endorsement Omitted]
F ran cis H a in e s , p l a in t if f
vs.
Otto J . K ern er , et a l ., defen da nts
M otion to D ism iss and Su ppo rtin g Mem orandum—
Filed July 23, 1968
Now come the defendants, OTTO J. KERNER, former
Governor of Illinois; ROSS V. RANDOLPH, Director of
Public Safety of Illinois; MAX P. FRYE, Warden, Men
ard Penitentiary; LEWIS LENCE; E. ROGERS; DON
ALD GENTSCH; WILLIAM SHEETS; and PAUL
DUNCAN, prison officials and employees, by their at
torney WILLIAM G. CLARK, Attorney General of the
State of Illinois, and respectfully move this Honorable
Court to dismiss the above-entitled cause, pursuant to
Rule 12(b) (6) of the Federal Rules of Civil Procedure
for failure to state a cause of action upon which relief
can be granted.
In support of the above motion, defendants respectfully
submit the following memorandum of law.
Plaintiff, an inmate of the Illinois State Penitentiary,
Menard Branch, brings this action under 42 U.S.C. sec
tions 1981, 1983, and 1985(2), all being sections of the
Federal Civil Rights Act, invoking the Court’s jurisdic
tion, pursuant to 28 U.S.C. § 1343(3). Among such
other relief as justice may require, he seeks punitive and
exemplary damages in the sum of FIVE HUNDRED-
THOUSAND DOLLARS ($500,000.00) from the named
defendants.
In his rather verbose and obtuse complaint, plaintiff
alleges that he has been arbitrarily classified into “C.
Grade” under the Progressive Merit System, a system
from which he contends he receives no benefits and should
21
not therefore be subject to its provisions. However,
plaintiff totally misapprehends what has occurred, and
therefore his purported issues are misleading. Pursuant
to its rule making authority [1967 111. Rev. Stat., Ch.
108, § 10], the Department of Public Safety has pre
scribed that all prisoners shall be divided into three
grades (“A”, “B” & “C” ). Upon admission an inmate
is placed in “A” grade, and “ [i]f an inmate’s behavior
is unsatisfactory, he may be demoted to Grade “C”,
which will result in a loss of privileges for a period of
one year and cannot earn merit time while in Grade “C”.
[Petition p. 6]. This system pertains to all prisoners,
whether they are serving a determinate sentence or an
indeterminate sentence. If the latter is true, then a
prisoner who is demoted to Grade “C” loses his privi
leges and his right to earn merit time. If a prisoner is
serving a determinate sentence, he loses only his privi
leges.1 The question then is whether the operation of
this rule has deprived plaintiff of any constitutional
rights. The complaint shows that the plaintiff struck an
other prisoner on the head writh a shovel; that he was
twice asked to explain the incident; that he had both
times refused to explain his action; that he was punished
by demotion to Grade “C”, with the corresponding loss
of privileges. (Complaint, pp. 7, 8, 9)
The complaint is thusly intimately concerned with in
ternal prison administration. The law is well settled
that except under “exceptional circumstances,” internal
matters such as the conduct of a prison, the enforcement
of its rules and regulations, its discipline, and the proper
exercise of its discretionary powers, are the sole concern
of the States, and the federal courts will not inquire
concerning them. Walker v. Pate, 356 F.2d 502 (7th
Cir. 1966), cert, denied, 384 U.S. 966 (1966); Knight
v. Ragen, 337 F.2d 425 (7th Cir. 1963), cert, denied,
380 U.S. 985 (1965); Childs v. Peg slow, 321 F.2d 487,
489 (4th Cir. 1963). In view of the clear violation by
plaintiff of a legitimate prison rule and regulation, to
gether with the attendant reasonable disciplinary pun
1 The respondent is informed that a prisoner so demoted loses
his right to go to the movie and also his commissary rights.
22
ishment, the facts presented do not rise to the exceptional
circumstances which are required for a federal Civil
Rights suit. Moreover, the acts of prison officials, who
being vested with wide discretion in safekeeping and
securing prisoners committed to their custody and charged
with the right and duty to maintain discipline among
inmates, should be upheld if reasonably necessary to ef
fectuate the purposes of imprisonment. Kelly v. Dowd,
140 F.2d 81 (7th Cir. 1944). Therefore, plaintiff has
failed to demonstrate that the defendants, while acting
under color of state law or in conspiracy with each other,
deprived or abridged his federally protected rights, priv
ileges, or immunities as required by 42 U.S.C. § 1983
and § 1985(2), and hence the complaint should be dis
missed.
Parenthetically, it is noteworthy that there is a total
absence of any specific allegation that the defendants
KERNER, RANDOLPH and FRYE personally partici
pated either individually or in conspiracy with the others,
except by the allegation that their respective offices as
Governor, Director of the Department of Public Safety,
and Warden gave them the authority and responsibility
to supervise and correct the alleged wrongful acts of
their subordinates. Plaintiff is relying upon the doctrine
of respondeat superior, a doctrine which is totally in
applicable as a grounds for recovery under the Civil
Rights Act. Jordon v. Kelly, 233 F. Supp. 731, 739
(W. D. Mo. 1963) : Rwnnells v. Parker, 263 F. Supp.
271, 274 (C.D. Cal. 1967).
WHEREFORE, defendants respectfully pray this Hon
orable Court to strike and dismiss the instant complaint
and to deny all relief thereunder.
,/s,/ William G. Clark
Attorney General of the
State of Illinois
160 No. LaSalle Street
Chicago, Illinois 60601
John M. Sorrentino
Assistant Attorney General
Of Counsel
23
No. CV-68-83D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
vs.
Otto J. K e en e r , et a l ., defen da nts
M otion to A m e n d M otion to D ism iss—
Filed November 8, 1968
Now comes WILLIAM G. CLARK, Attorney General
of the State of Illinois and Attorney for defendants
Jeffie Biggs, Paul Sympson, and Russell Lence, to ask
that the motion to dismiss previously filed be amended
so that it is also the motion of the defendants Biggs,
Sympson and Lence. In support of this motion to amend
the motion to dismiss, the Attorney General says as
follows:
1) This civil rights action, brought by an inmate of
the Illinois State Penitentiary to recover some $500,000
in alleged damages, was filed by leave of court on July
1, 1968. Thereafter at various times, service was had
upon various defendants.
2) On July 22, 1968, a motion to dismiss was filed on
behalf of all defendants except those on whose behalf
this motion is made. It was only through inadvertence
that the three defendants above named were not specifi
cally named in the motion to dismiss, and it was not
until the plaintiff filed a motion for default judgment
against these three defendants that the mistake was
discovered. As a matter of fact, the cover letter accom
panying the motion to dismiss recited that the motion
was on behalf of “Otto J. Kerner, former Governor of
Illinois and the other named defendants . . . .”
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
24
3) As is more fully set out in the motion to dismiss
previously filed, the plaintiff has failed to state a claim
and this action is completely without legal justification.
For these reasons, the defendants Biggs, Sympson and
Russell Lence ask that an order be entered, amending
the motion to dismiss to include their names.
/ s / William G. Clark
Attorney General of the
State of Illinois
160 North LaSalle Street
Suite 900
Chicago, Illinois 60601
(346-2000)
Attorney for Defendants
25
Cv. No. 68-83-D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
v.
Otto J . K ern er , et a l ., d efendants
Order Den y in g Motion for D efau lt and A llo w in g
Motion to A m en d M otion to D ism iss—
Filed November 8, 1968
This matter having come on to be heard on motion of
the plaintiff for default, and the court being fully ad
vised in the premises finds that said motion should be
denied.
Also coming on for hearing is motion to amend pre
sented by the Attorney General of the State of Illinois
to include defendants Biggs, Sympson and Lence in the
motion to dismiss, and the court finds that said motion
should be allowed.
IT IS HEREBY ORDERED that the motion for de
fault be, and is hereby, denied.
IT IS HEREBY FURTHER ORDERED that the mo
tion to amend motion to dismiss be, and is hereby, al
lowed.
IT IS HEREBY FURTHER ORDERED that the
plaintiff is granted an additional 20 days to file any addi
tional or supplemental brief to the motion to dismiss, and
the defendants are to answer said brief within 20 days
after the filing of any supplemental brief.
Entered this 8th day of November, 1968.
/ s / Henry S. Wise
United States District Judge
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
26
No. CV 68-83 D
F ran cis H a in e s , p l a in t if f
vs.
Otto J. K e e n e r , et a l ., defen da nts
N otice and P roof of S ervice
To: Hon. William G. Clark, Attorney General
Supreme Court Building
Springfield, Illinois
Please take notice that there is being filed in the above
entitled case Motion for Leave to file Admissions and
Interrogatories against certain named defendants.
Please take further notice that hereto attached are
full and complete copies of all papers now being filed.
Please take further notice that this service is being
made upon you as Counsel for the said Defendants with
the exceptions of the Defendant Lence.
,/&/ Francis Haines
Plaintiff
State of I l lin o is )
) ss.
R a nd olph County )
Francis Haines, being first duly sworn, on oath deposes
and says that he has made service of the papers now
being filed in this Court upon the Defendants Randolph,
Frye, Lence, Sheets and Gentsch, along with such serv
ice upon the Attorney General of Illinois, William G.
Clark, such done by giving the Prison Officials a copy
of the papers for delivery to each defendant along with
a copy of such papers for mailing to William G. Clark at
his above address, on this 14 day of November, A. D.
1968,
,/s/ Francis Haines
Subscribed and sworn to before me, a Notary Public,
on this 14 day of November, A. D. 1968, by Francis
Haines.
,/s/ Donald G. Gentsch
Notary Public
My Commission Expires
June 21, 1969
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
[SEAL]
27
CV No. 68-83 D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
vs.
Otto J. K ern er , et a l ., d efendants
M otion for Leave to F il e A d m issio ns A gainst Cer
t a in N amed D efen d a n ts , P ursuant to R u le 36,
F ederal R ules of Civ il P rocedure—Filed November
15, 1968
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
Plaintiff, Francis Haines, respectfully moves that he
be permitted leave to file, pursuant to Rule 36, Federal
Rules of Civil Procedure, Admissions to be directed to
the Defendants, Ross V. Randolph, Max P. Frye, Russell
Lence, William Sheets, and Donald Gentsch, and that
this Court may order the same to answer such admis
sions.
In support of his above motion plaintiff avers that
such have been made necessary to develop the facts of
the complaint.
In further support of the above motion plaintiff hereto
attaches an affidavit.
Respectfully submitted
,/s/ Francis Haines
Plaintiff
28
No. CV 68-83 D
F ran cis H a in e s , p l a in t if f
vs.
Otto J . K e r n er , et a l ., defen da nts
M otion for Leave to F il e I nterrogatories A gainst
Certa in N amed D efen d a n ts P ursuant to R u le 33,
F ederal R u les of Civ il P rocedure—Filed Novem
ber 15, 1968
Plaintiff, Francis Haines, respectfully moves that he
be permitted leave to file, pursuant to Rule 33, Federal
Rules of Civil Procedure, Interrogatories to be directed
to the Defendants Ross V. Randolph, Max P. Frye,
Russell Lence, William Sheets, and Donald Gentseh and
that this Court may order the same to answer such In
terrogatories.
In support of his above motion plaintiff avers that
such have been made necessary to develop the facts of
the complaint.
In further support of the above motion plaintiff hereto
attaches an affidavit.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
Respectfully submitted
/s / Francis Haines
Plaintiff
No. CV 68-83 D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
vs.
Otto J . K er n er , et a l ., defen da nts
A ffidavit in Su pport of M otions
State of I l lin o is )
) ss.
R a nd olph County )
Francis Haines, being first duly sworn upon his oath,
deposes and says: that he is plaintiff in the above en
titled cause; that he makes this affidavit in support of
his motion for leave to file Admissions and Interroga
tories; that he believes that it is necessary to further
develop the facts of the case in the light of recent ac
tions; that on or about October 17, 1968, he went to the
Inmates Commissary and was permitted to purchase Cos
metics, such as V. 0. 5 Hair Oil; After Shave Lotion;
Scented Soap; that he tried to buy Hello or Get Well
Gretting Cards but was only permitted to buy a Birth
day Card; that he was permitted to buy Tooth Paste and
Aspirans; that he needs the rules pertaining to the In
mates Commissary so that- he may learn the reasoning
behind the rules which permit him to buy things TO
MAKE HIM SMELL NICE AND DENY HIM PAPER
ON WHICH TO PETITION THIS COURT; that he is
given paper by the Institutional Commercial School be
cause he is in “C” Grade; this paper is yellow in color;
that he makes service copies upon used papers for serv
ice on the defendants.
That on October 24, 1968, while he was having papers
notarized to be sent to this Court he asked the Defendant
Gentsch how was it that some inmates did not receive
a year in “C” Grade; that he was told by the Defendant
Gentsch that convicts could petition for restoration to
Grade by petition to the Progressive Merit System Board;
29
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
ao
that such is the first time he ever knew of such provision
and that such is not contained in the Inmates Rule Book;
that the Progressive Merit System Rules as contained
in Paragraph 17, Page 6 of the Complaint, under sub
title “PROMOTIONS” it is said: “in the event of demo
tion you must spend one year in “C” Grade” ; that this
Rule and others unknown to Plaintiff are thought to be
in the large Rule Book in the Institutional Record Office.
That he is now in bad straights in regards to legal
paper as he has to beg from other inmates enough paper
to make a copy before he can ask the Commercial School
and show such copy to get other paper.
That he is contemplating opening a Football Parlay
Ticket in the Institution to get enough cigarettes to trade
other inmates for writ papers; that both the trading
and parlay tickets are in violation of the institution
rules; that the parlay ticket is in violaton of the Laws
of Illinois; and if he is caught with parlay tickets it
might result in another trip to solitary confinement if
not a trial in a criminal court.
That under General Rule No. 15 in the Institution
Rule Book an inmate can be punished for giving another
inmate a piece of candy, and such rule states: “Traf
ficking, bartering and trading are strictly forbidden.”
that under this rule he would be forbidden to take paper
which has been offered by other inmates and would be
forbidden to “traffic by trading cigarettes for paper;
that he believes it is now time for this Court to con
sider the Ancillary Writ of Injunction asked in regards
to the purchase of paper from sources other than the
commissary.
That his foregoing statements are true and correct.
/s / Francis Haines
Subscribed and sworn to before me, a Notary Public,
by Francis Haines, on this 14 day of November, A. D.
1968.
/ s / Donald G. Gentsch
Notary Public
My Commission Expires
June 21, 1969[SEAL]
31
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J . Kerner, et al., defendants
Request for Admissions Under Rule 36, F ederal
Rules of Civil P rocedure—F iled November 21, 1968
Plaintiff, Francis Haines, requests that Defendant
Ross V. Randolph, within ten days after allowance of
these Admissions by the Court, to make the following
Admissions for the purpose of this action only and sub
ject to all pertinent objections to admissibility which
may be interposed at the trial.
That you are duly appointed Director of Public Safety
of the State of Illinois?
That as such Director you are commanded by the
Laws of Illinois to exercise the powers and discharge
the duties of such Department?
That you are given Rule making authority for the
Illinois State Penitentiary System by the provisions of
Paragraph 10, Chapter 108, Illinois Revised Statutes,
1967?
That you have exercised such power: to quote the
Attorney General of Illinois, in his motion to dismiss in
the above entitled cause as follows:
“Pursuant to its rule making authority (1967 111.
Rev. Stat. Ch. 108, S. 10) the Department of Public
Safety has prescribed that all prisoners, shall be di
vided into three grades (“A”, “B” & “C”.)”
That the provisions of 1967 Illinois Revised Stat
utes, Ch. 108, pars. 76-81, requires that the Department
of Public Safety shall classify all prisoners into three
grades, viz: First, Second and Third Grades?
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
32
That there are no provisions contained in the above
Paragraphs 76-81, concerning disciplinary measures in
such classifications?
That the classification scheme contained in the above
paragraph 76-81 are to be based upon ability and will
ingness to work in general?
That is required by Illinois Revised Statutes, 1967,
Ch. 108, Paragraph 41, that- the Rules and Regulations
to be read to the Convicts at least once each month?
That the provisions of Illinois Revised Statutes, 1967,
Ch. 108, Paragraph 45, require that the Department
of Public Safety to make Good Time Rules for the
diminution of sentences?
That the Progressive Merit System Rules, as con
tained in Paragraph 17, Page 6, of the Complaint, is a
correct copy of the Rules as contained in the Current
Rule Book at Menard Prison?
That there is a Rule within the Progressive Merit
System which permits convicts to petition for restora
tion to Grade every three (3) months?
That there is a Rule within the Progressive Merit
System which states all convicts can be placed in “C”
Grade?
That there are no provisions within the Progres
sive Merit System Rules made available to convicts which
state that a convict in “C” Grade can only buy Cosmetics
at the Commissary and cannot buy paper on which to
type a petition to the Courts?
That the provisions of the Illinois Constitution, as
set forth in Paragraph 8, Page 4, of the Complaint are
a correct recital of such provisions?
That the Act of 1867, Sessions Laws, Page 31, Illi
nois Statutes 1868, Section 37, Chapter 81, is cor
rectly recited in Paragraph 13 (b), Page 5 of the Com
plaint?
That the act of July 1, 1871, Illinois Revised Stat
utes, 1925, is correctly quoted in Paragraph 13 (c)
Page 5 of the Complaint.
That the Plaintiff appeared before the Parole Board
in 1959, received a continuance to 1964; appeared be
fore the Parole Board in 1964, received a continuance
S3
to- 1967; appeared in 1967, received a continuance to
1968; appeared 1968, received a continuance to 1970?
That under none of these above continuances did
Plaintiff receive the benefits of any good time regula
tions?
That during the year 1968 Inmate John Baze, 38182,
was taken before the Circuit Court of Randolph County,
Illinois, and tried for escaping from the Prison Honor
Farm?
That the following Rules contained as Commissary
Rules in the present Institutional Rule Book, Page 26,
read as follows:
“2) Have your store order filled out properly
(typed).”
“5) You will file past the Commissary Officer with
your order in your hand, and after he has placed
your balance on same, put your prints on the order
in two places and proceed to secure your order as
instructed by your officer.”
That the Opinion of Mr. Justice Rutledge, concur
ring in Screws v. United States, 325 U.S. 91, at 129,
states as follows:
“Generally state officials know something of the in
dividuals basic legal rights. If they do not, they
should, for they assume that duty when they assume
their office. Ignorance of the law is no excuse for
men in general. It is less an excuse for men whose
special duty is to apply it, and therefore know and
observe it.”
That the interdictions of Title 42 United States
Code, Section 1985, prohibit the deprivation of the right
to the due course of Justice in any state or territory?
That there is in the Menard State Penitentiary a
place of confinement known by various names, officially
as Observation and Isolation, and colloquially as “The
Hole”, “Solitary Confinement” and “Sympsons Hotel”
and that punishment in such is aptly described in the
Complaint, Paragraph 19, Page 8?
34
That you, as Director of Public Safety, are con
sidered the Supreme Administrator of the Illinois Peni
tentiary System?
That you received the Service Copy of this Request
for Admissions typed upon used paper?
Respectfully submitted
/s / Francis Haines
Plaintiff
35
No. CV68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J. Keener, et al., defendants
Request for I nterrogatories P ursuant to Rule 33,
F ederal Rules of Civil Procedure—Filed Novem
ber 21, 1968
Plaintiff, Francis Haines, requests that Defendant
Ross V. Randolph, within ten days after allowance of
these Interrogatories by the Court, to answer the follow
ing Interrogatories for the purpose of this action only
and subject to all pertinent objections to admissibility
which may be interposed at the trial.
That in your enforcing the Progressive Merit Sys
tem Rules at the penitentiary, why are those prisoners
serving Definite Sentences being denied any merit time
when they receive a “non-dated” continuance?
Under what particular provision of Paragraph 10,
Chapter 108, 111. Rev. Stat. 1967, are you given power
and authority to classify prisoners into Grades “A”,
“B”, and “C” when 111. Rev. Stat. 1967, Chapter 108,
Paragraph 76, states that prisoners shall be classified
into First, Second and Third Grades?
Under what particular provisions of 111. Rev. Stat.
1967, are you given the power and authority to use any
Grade System for discipline when the provisions of 111.
Rev. Stat. 1967, Ch. 108, Pars. 76-81, contains no such
provisions?
Under what particular reasoning do you exclude
plaintiff from receiving merit time solely because he is
given an undated continuance, when those men receiving
a dated continuance would be given 1 year, 3 months on
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
36
a five year continuance; 9 months on a three year con
tinuance; three months on a year continuance; and, 6
months on a two year continuance; a total of 2 years
and 9 monts, the Table on Page 16 of the Current Rule
Book states an eleven year continuance would be given
two years and nine months merit time thereby making
the prisoner eligible for review of his case in eight years
and three months?
In excluding definite sentences of life from benefits
of Good time what consideration have you given the re
quirements of 111. Rev. Stat. 1967, Ch. 108, Par. 45,
which provide that Good Time Rules should be made?
Have you, during your tenure as Warden of the
Illinois State Penitentiary, Menard, Illinois, ever read
the Rules and Regulations to the convicts as required by
111. Rev. Stat. 1967, Ch. 108, Par. 41?
Have you, during your tenure as Director of Pub
lic Safety, of Illinois, required that the present Warden
of the Illinois State Penitentiary read the Rules and
Regulations to the convicts?
In Paragraph 17, Page 6, of the Complaint the Pro
gressive Merit System Rules are copied, under the
sub-heading “Promotions” and in the second paragraph
thereof, it is stated: “In the event of demotion you must
spend one year in “C” Grade * * *” is this emphasized
word “must” to be taken in the sense of Merriman’s
Webster Dictionary as meaning mandatory, obligatory
and required?
In view of the fact that there is nothing contained
in the current Rule Book in regards to the right of an
inmate to petition to restoration to Grade, how is it per
mitted?
Why is such provision for petition for restoration
to Grade not contaiend in the Rule Book made available
to convicts?
In the enforcing of Grade “C” with its consequen
tial loss of Commissary Privileges, why are these con
victs seeking to petition the Court for redress denied the
right to purchase paper to write to the Courts?
In the enforcing the loss of Commissary Privileges
to inmates in Grade “C” what consideration was
37
given to those men’s right of access to the courts, when
they cannot buy paper?
Do you think it is more important for a man in
Grade “C” to buy Cosmetics so he can smell nice than
it is to petition the Courts for redress of grievances?
Have you delegated any authority to the Defend
ant Sheets to alter, abrogate or annul the existing rules,
whereby an inmate is not permitted to fill out his order
as required by Commissary Rule No. 2 and the balance
is placed upon such order by a convict other than the
Commissary Officer, as required by Commissary Rule
No. 5?
Under what authority, delegated or assumed, do you
have the power to require an inmate in the Illinois
State Penitentiary, Menard, Illinois, to buy paper at
One (1*) Cents per sheet and then furnish a copy of
any legal papers being sent to the Courts for the Insti
tutional Piles?
For what reasons are these papers required for the
Institutional Files used?
Taking into consideration the ruling of the United
States Supreme Court in Ex parte Hull, 312 U.S. 546,
that the prison officials in Michigan could not demand
approval of the Parole Board Attorney before papers
were sent to the Courts, upon what base do you require
a copy of papers being sent to the Courts as a condition
precedent for mailing of such papers to the Courts?
Are you of the opinion that the State of Illinois
can vest you with the power to ignore the Constitution
and Laws of the United States?
Taking into consideration that the Illinois Consti
tution as set forth in the Complaint, Paragraph 8,
Page 4, which requires and gives, the right to trial by
jury, an indictment of a grand jury for a criminal of
fense, the right to appear and defend in person and by
counsel, to demand the nature and cause of the accusa
tion, to have a copy thereof, process to compel the at
tendance of witnesses, a speedy public trial, and not to
be compelled to give evidence against himself, were such
above given any consideration when plaintiff was placed
in solitary confinement and “C” Grade for actions which
might constitute a crime under the Laws of the State
of Illinois?
38
Under what particular Illinois Statute do you pro
fess to have power to make rules which might deny any
person of the right to the due course of justice in the
State of Illinois for offenses committed in the Illinois
State Penitentiary?
Under what particular Illinois Statute do you pro-
profess to have power to impose Solitary Confinement as
punishment for breach of prison rules in view of the
Act of July 1, 1871, 111. Rev. Stat. 1925, Ch. 108, Par.
37, prohibited cruel and unusual punishments in the
Illinois Prisons?
Are you of the opinion that revocation of the above
law would resinstate the provisions of the 1827 and 1867
laws which permitted the imposition of Solitary Confine
ment?
Have you been relying upon custom, usage or prior
practice in your formulation of prison rules?
Have you given any consideration to the Rule of
Law as stated in United States v. Jones, 207 F. 2nd.
785 (CCA 5) that a violation of the Laws of a State
might constitute a violation of the Federal Civil Rights
Acts.
Are you of the opinion that your position as a
state officer would vest in you the power to overthrow
or ignore the Constitution and Laws of the United States?
Have you delegated any disciplinary powers to the
Defendant William Sheets, as Commissary Officer in
the Menard Prison, to remake or ignore the Rules in
the inmates Rule Book?
Have you authorized the Defendant Sheets to re
fuse to sell writ paper to inmates in “C” Grade, and to
limit such inmates to purchase of Cosmetics?
Why has Defendant Sheets been permitted to formu
late or enforce a rule which prohibits an inmate from
filling out his Commissary Order as required by Rule 2
of the Commissary Rules?
Has any consideration been given to a surmise that
such action might permit inmate commissary clerks
to add items to the commissary orders after the inmate
has traded, and therefore take what is known in the in
stitution as the “Inmates Tax” to cover shortages?
39
Are you aware or were you informed that Prison
Rumor has the Commissary Five Hundred ($500.00)
Dollars short at the September audit?
Have you given Defendant Sheets any authority to
ignore the Commissary Rule No. 5 and permit inmates
to do his work, including the enforcement of prison rules,
as set forth in the Complaint, Paragraph 20, Pages 8
and 9?
Have you given any consideration to the Rule which
limit paper to he purchased in the commissary for writ
ing writs to 8y2 x 14 Inch Pink Paper, to be typed with
Green Ink, to the Rules of Various Courts, and in par
ticular that of the United States Supreme Court, Rule
47 (Circa 1954) which requires that typed papers be
8y2 x 13 Inch Opaque, unglazed paper and the rules of
the Illinois Supreme Court which require typed papers
to be on 8y2 x 11 inch white paper?
To what causes do you attribute the discrepancies in
the cost of Menard Paper in the Commissary, Fletcher
Manifold, 8% x 14 Inch Paper, at Five ($5.00) Dollars
per ream, with the price of paper in the Statesville Com
missary, Hammermill Bond, 8y2 x 13 White Opaque,
Legal Cap, at about Two ($2.00) Dollars per ream?
To what cause do you attribute the discrepancies in
the price of Typewriter Ribbons in Menard, from Two
($2.00) Dollars to Two ($2.25) Dollars, Twenty-five
Cents, with the cost of Ribbons in Statesville Commis
sary being about One ($1.00) Dollar?
If the Rules of the Department of Public Safety are
to be given an uniform application why are Statesville
Convicts permitted to make applications to the Courts
on White Paper with Black Ribbons and Menard Con
victs required to use Pink Paper with Green Ribbons,
making a much less legible copy?
Do you believe that you, as a Public Officer of the
State of Illinois, can plead ignorance of the- law in view
of the statements of Mr. Justice Rutledge in Screws v.
United States, 325 U.S. 91, 129?
Respectfully yours
/s / Francis Haines
Plaintiff
40
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J. Kerner, et al., defendants
Request for Admissions P ursuant to Rule 36, F ed
eral Rules of Civil P rocedure—Filed November
21, 1968
Plaintiff Francis Haines, requests that Defendant Max
P. Frye, within ten days after allowance of these ad
missions by the Court, to make the following admissions
for the purposes of this action only and subject to all
pertinent objections as to admissibility which may be
interposed at the trial.
That you are Warden of the Illinois State Peniten
tiary, Menard, Illinois.
That you are a Member of the Progressive Merit Sys
tem Board?
That you were Warden on March 12, 1968?
That on March 12, 1968, the Progressive Merit Sys
tem Board demoted the plaintiff, Francis Haines, No.
16348, to “C” Grade, for hitting another inmate on the
head with a shovel and refusing to explain his actions?
That as Warden you are enforcing a Rule which sets
a condition precedent on transmission of papers to the
Courts that the Institution must be given a copy of such
papers?
That this Service Copy of the Request for Admissions
and the Service Copy of the Interrogatories were given
to you upon used papers.
Respectfully submitted
,/s/ Francis Haines
Plaintiff
41
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J . Kerner, et al., defendants
Request for Interrogatories P ursuant to Rule 33,
F ederal Rules of Civil P rocedures—Filed Novem
ber 21, 1968
Plaintiff, Francis Haines, requests that Defendant
Max P. Frye, within ten days after allowance of these
interrogatories by the Court, to answer the following In
terrogatories for the purpose of this action only and
subject to all pertinent objections to admissibility which
may be interposed at the trial.
In demoting plaintiff to “C” Grade did you consider
that his actions in hitting another inmate on the head
with a shovel might have been a “criminal offense” un
der the Laws of Illinois?
In demoting plaintiff to “C” Grade did you consider
that his refusal to talk and explain his actions might
be within his right to remain silent?
In demoting Plaintiff to “C” Grade for his actions did
you give any consideration to the requirements of the
Illinois Constitution (1870) Article II, Sections 2; 3; 8;
9; and 10, in regards to the guarantees therein contained
for trial of criminal offenses?
In demoting plaintiff to “C” Grade for his actions did
you give any consideration to the right to the due course
of justice in the State of Illinois as guaranteed by Title
42, United States Code, Section 1985?
Why is not the rules which states all convicts may be
demoted to “C” Grade contained in the Inmates Rule
Books?
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
42
Why is not the rule which provides that inmates in
“C” Grade may petition for restoration to “A” Grade
contained in the Inmates Rule Book?
Have you ever, during your tenure as Warden, read
the Rules and Regulations to the convicts?
Why do the rules now enforced in the Illinois State
Penitentiary, Menard, Illinois, require that a copy of
all papers being sent to the courts be provided for the
Institutional files?
Where do you derive the power to impose solitary
confinement in the Menard Penitentiary?
Where do you derive the power and discretion as to
whether inmates who commit crimes in the Menard
Penitentiary are to be tried in the Courts or summary
punishment in the penitentiary?
Does the Progressive Merit System Board sit en bloc
or as individuals?
Is a quorum required for action by the Progressive
Merit System Board?
Whose decision was it to try those prisoners who com
mitted the killings in the Dining Room and those other
inmates who have escaped during your tenure of office
in the Circuit Court of Randolph County, Illinois?
Upon what specific reasoning do you proceed in the
summary trial of criminal offenses and summary punish
ments?
Have you been given or requested any legal opinions
of your powers in regards to the imposition of summary
punishments?
Respectfully submitted
,/s/ Francis Haines
Plaintiff
43
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J . Kerner, et al., defendants
Request for Admissions P ursuant to Rule 36, F ederal
Rules of Civil P rocedure—Filed November 21, 1968
Plaintiff, Francis Haines, requests that Defendant
Russell Lence, within ten days after allowance of these
Admissions by the Court to make the following Admis
sions for the purpose of this action only and subject to
all pertinent objections to admissibility which may be
interposed at the trial.
That you are Senior Guard Captain at the Illinois
State Penitentiary, Menard, Illinois?
That on March 10, 1968, you were sitting as Disci
plinary Officer at the penitentiary?
That on March 10, 1968, Plaintiff Francis Haines, ap
peared before you upon a Disciplinary Report?
That such Disciplinary Report was for hitting an
other inmate upon the head with a shovel?
That the Illinois Revised Statutes, 1967, Ch. 38, Divi
sion II, Article 12, Sections 2 to 6, defines the Crime of
Assault and Battery, and sets the legal penalties there
fore?
That the Illinois Constitution, 1870, Article II, Sec
tions 2; 3; 8; 9 and 10 (as contained in the Complaint
served upon you in Paragraph 8, Page 4), sets forth
protections to be accorded to persons who are charged
with criminal offenses?
That the above Constitutional provisions are supple
mented by the Illinois Revised Statutes, 1967, Criminal
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
44
Law and Procedure, Ch. 38, Division III, Titles I to VII,
pages 1590 to 1613, governing trial in criminal offenses?
That the Illinois Revised Statutes, 1967, Division I,
Article 25-1, Section 25-1, (3) defines Mob Action and
states that any assembly of two or more persons trying
any person without authority of law, is a misdemeanor?
That the Defendant Rogers was present on March 10,
1968, and participated in the discussions as to the pun
ishment to be imposed?
That the punishment imposed was fifteen (15) days?
That this punishment is known in the institutional
vernacular as “The Hole”, “Solitary Confinement”
“Sympsons Hotel” and the “Stone House” ?
That the punishment is aptly described in the Com
plaint, Paragraph 19, Page 8?
That a former Director of Public Safety, Mr. Michael
Seyfrit is quoted in Illinois Criminal Law and Proce
dure (Stanton 1955) on Paroles, Pardons, Rules and
Regulations, Chap. 26, Par. 1686, pp. 659-660, as say
ing (emphasis supplied) :
“* * * minor violations, unless a number, usually
three or more, occurring within a period of a year
or less, generally do not call for demotion, solitary
confinement for varying lengths of time usually be
ing considered sufficient.”
What changes, to your knowledge, other than the in
stallation of plumbing, has been made in this area of
punishment since 1955?
In addition to this imposition of solitary confinement
plaintiff was also demoted to “C” Grade.
Respectfully submitted
/ s/ Francis Haines
Plaintiff
No. CV 68-83 D
45
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J. Kerner, et al., defendants
Request for I nterrogatories Pursuant to Rule 33,
F ederal Rules of Civil Procedure—Filed Novem
ber 21, 1968
Plaintiff, Francis Haines, requests that Defendant
Russell Lence, within ten. days after allowance of these
interrogatories by the Court, to answer the following in
terrogatories for the purpose of this Action only and
subject to all pertinent objections to admissibility which
may be interposed at the trial.
From where do you derive your power as Disciplinary
Officer, while sitting as such, statutes, Institutional Rules
or Custom and Usage?
On March 10, 1968, did you give any consideration as
to whether or not the facts contained in the Disciplinary
Report on the Plaintiff, Francis Haines, might consti
tute a criminal offense under the Laws of the State of
Illinois?
Have you any knoweldge of the varying degrees of
the actions which constitute assault and battery?
On March 10, 1968, did you have any knowledge of
the guarantees contained in the Illinois Constitution, Ar
ticle II, Sections 2; 3; 8; 9 and 10; regarding trial of
criminal offenses in the State of Illinois?
On March 10, 1968, did you have any knowledge of
the interdiction of the Federal Civil Rights Acts, Title
42 United States Code, Sections 1981, 1983 and 1985?
On March 10, 1968, did you have any knowledge of
the provisions of the Illinois Revised Statutes, 1967,
46
Criminal Law and Procedure, Ch. 38, Division III, Titles
I to VII, pages 1590 to 1613, which govern trial in crim
inal offenses in Illinois?
On March 10, 1968, did you have any knowledge of
the organic law relating to the three preceeding ques
tions?
If, on March 10, 1968, you had any knowledge of the
Rule of Law that Ignorance of the Law is no excuse for
men in general and much less an excuse for state officers,
would you have proceeded as you did. Such Rule being
set forth in the opinion in Screws v. United States, 325
U.S. 91, at 129 (concurring opinion by Mr. Justice Rut
ledge) as follows?
“Generally state officials know something of the in
dividuals basic legal rights. If they do not, they
should, for they assume that duty when they assume
their office. Ignorance of the law is no excuse for
men in general. It is less an excuse for men whose
special duty is to apply it, and therefore know and
observe it.”
On March 10, 1968, were you aware of the provisions
of Title 42, United States Code, Section 1985, which pro
hibits the taking of the due course of justice in any state
or territory?
If you had such knowledge would you have given con
sideration to such law?
Have you made any effort to obtain knowledge of pris
oners basic legal rights, under the State and Federal
Constitutions and Laws?
Did the plaintiffs refusal to explain his actions, to you
have any bearing upon the amount of punishment im
posed?
Respectfully submitted
,/s/ Francis Haines
Plaintiff
47
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J . Kerner, et al., defendants
Request for Admissions P ursuant to Rule 36, F ed
eral Rules of Civil Procedure—Filed November
21, 1968
Plaintiff, Francis Haines, requests that Defendant
William Sheets, within ten days after allowance of these
admissions by the Court to make the following admis
sions for the purpose of this action only subject to all
pertinent objections of admissibility which may be inter
posed at the trial.
That you are Commissary Officer at the Illinois State
Penitentiary, Menard, Illinois.
That on March 27, 1968, Inmate Rond, Register Num
ber 32163, was assigned to work under your supervision
at the Inmates Commissary.
That the duties of Inmate Bond included the placing
of Inmates balance upon their Commissary Slips.
That Commissary Slips by Inmates are required to be
turned in with only the heading thereof typed and the
item list vacant.
That Commissary Rule No. 2 in the Current Inmate
Rule Book reads as follows:
“Have your order filled out properly (typed)”
That Commissary Rule No. 5 in the Current Inmate
Rule Book reads as follows:
“You will file past the Commissary Officer with your
order in your hand, and after he has placed your
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
48
balance on same, put your prints on the order in
two places, and proceed to secure your order as in
structed by your officer.”
That Fletcher Manifold Paper, sixe 8y2 x 14 inch,
Pink in Color, is sold at the price of one (1$) cent per
sheet.
That the price of M & M Carbon Paper is ten (100)
cents per sheet in the Commissary.
That the price of typewriter Ribbons, Green in Color,
when first placed in the Commissary in the Fall of 1964
were One ($1.50) Dollar, Fifty Cents.
That in the year of 1967 the Plaintiff purchased at
least three typewriter ribbons, paying varying prices for
the same, from Two and a Half ($2.50) Dollars to Two
($2.00) Dollars.
That inmates in “C” Grade are permitted to purchase
only Cosmetics under the Rules enforced by you.
That when an inmate has the rush placed upon him in
the Commissary before he can check his order he has
no recourse to recover any shortages.
That you have no Price List posted in any conspicious
place where it can be read in the Commissary and no
price list is currently available in the institution.
Respectfully submitted
,/s/ Francis Haines
Plaintiff
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J. Kerner, et al., defendants
Request for Interrogatories Pursuant to Rule 33,
F ederal Rules of Civil Procedure—Filed Novem
ber 21, 1968
Plaintiff, Francis Haines, requests that Defendant
William Sheets, within ten days after allowance of these
interrogatories by the Court, to answer the following in
terrogatories for the purpose of this action only and sub
ject to all pertinent objections to admissibility which
may be interposed at the trial.
Have you been vested with any power, discretion of
authority to alter, amend or ignore the Commissary
Rules as contained in the current Inmate Rule Book in
the Illinois State Penitentiary, Menard, Illinois?
In the event you have not been vested with any power,
discretion or authority to alter, amend or ignore the
Commissary Rules in the Rule Book why are not inmates
permitted to have their store orders typed as required
in Commissary Rule No. 2; and only the Inmate Clerks
permitted to list the items purchased?
Why are not these Inmate Clerks required to Red Line
Commissary Orders?
Do you receive any complaints from the inmates in
the Illinois State Penitentiary, Menard, Illinois, that ad
ditional items are placed on their Commissary Lists after
they have left the commissary?
Is any Audit- or Check of any kind made upon Com
missary Orders after an Inmate has traded?
How long is it since you personally put an inmates
Balance on his Commissary Order as required by Com
missary Rule No. 5?
49
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
50
What is the price you pay for Fletcher Manifold per
ream?
What considerations prompted the selling nothing but
Pink Paper to write papers to the Courts?
If the consideration that too much state paper was
being stolen for use by inmates did you or the person
ordering Pink Paper give any consideration to the fact
that paper with Watermarks could have been purchased
for sale in the Commissary?
May it be correctly stated that until about 1964 that
this Pink Paper was sold by the Ream at a price of
Four ($4.00) Dollars per ream in the commissary?
That while this Pink Paper was being sold for the
above sum it was priced in less than Ream Lots at one
(1<U cents per sheet, because of the time and bother to
count it out?
What is your cost of the Green Typewriter Ribbons
sold at the Commissary?
Why are inmates compelled to take what an inmate
clerk brings not rather than a ribbon which fits his
machine?
Are you aware of the use of the term “Inmate Tax”
as used in the institution in relation to the Commissary?
Are you aware of the Prison Rumor that the Inmates
Commissary Books was Five ($500.00) Dollars short at
the September Inventory?
Was it because of this shortage in the inventory that
the prices of Hair Oil and Coffee were raised?
Is the Federal Excise Tax still in existence on the sale
of V. O. 5 Hair Oil?
If such Federal Excise Tax is still in existence are you
paying tax on the selling price over the advertised price
of $1.10?
Are you aware that the Federal Criminal Code, Title
18, United States Code, Section 3, requires as follows:
“Whoever, knowing that an offense against the
United States has been committed, receives, relieves,
comforts or assists the offender in order to hinder
or prevent his apprehension, trial or punishment, is
an accessory after the fact.”
51
Are you aware that the Federal Criminal Code, Title
18, United States Code, Section 4, provides:
“Whoever, having knowledge of the actual commis
sion of a felony cognizable by a court of the United
States, conceals and does not as soon as possible
make known the same to some judge or other person
in civil or military authority under the United
States, shall be fined not more than $500 or impris
oned not more than three years.”
Are you aware of the rulings of the United States
Supreme Court in Re Quarles, 158 U.S. 352; and Motes
v. United States, 178 U.S. 458; that every person has
the right to inform the United States of the violations
of its laws?
What objections could you have to the plaintiff inform
ing the United States authorities of the violation of their
laws if you are not paying the additional excise tax upon
the added price of V. 0. 5 Hair Oil?
Within the months of August, September and October,
1968, has any inmate assigned to the Inmates Commis
sary been transferred for giving Commissary Articles
to a pervert?
Have you ever considered that the refusal of the Com
missary to sell the Plaintiff paper on March 27, 1968,
might be a violation of his right to access to the Courts?
Did Inmate Bond properly heed your Orders and In
structions on March 27, 1968, when he told the Plaintiff
that he could take the matter to court, if he, plaintiff,
did not like it?
Under what line of reasoning do you operate when
you fail and/or refuse to sell paper which compares to
the requirements and rules of the various courts?
Are you aware that the Rules of the United States
Supreme Court Rule 47 (Circa 1954) requires opaque,
unglazed paper, 8y2 x 13 inches in size (Legal Cap.)?
Is there any full, complete and entire copy of all Com
missary Rules in existence?
Respectfully submitted
/&/ Francis Haines
Plaintiff
52
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J. Keener, et al., defendants
Request for Admissions P ursuant to Rule 36, F ed
eral Rules of Civil P rocedure—Filed November
21, 1968
Plaintiff, Francis Haines, requests that Defendant
Donald Gentseh, within ten days after allowance of these
admissions by the Court to make the following admis
sions for the purposes of this action only and subject to
all pertinent objections to admissibility which may be
interposed at the trial.
That you are Record Clerk at the Illinois State Peni
tentiary, Menard, Illinois?
That you are a Member of the Progressive Merit Sys
tem Board at the Illinois State Penitentiary, Menard,
Illinois?
That as such Record Clerk you prepare what is known
as the Parole Board. Dockets for each month?
That there is an Institutional Rule Book in Your Of
fice, approximately in size as follows: Contained in a
Ledger Binder, 8y2 x 14 inches, about 5 inches thick of
typed papers?
That on or about April 2, 1968, you opened this Ledger
Book to show plaintiff a rule which stated that all con
victs could be placed in “C” Grade, in answer to plain
tiff’s letter to Defendant Lewis C. Lence complaining
about being placed in “C” Grade?
That plaintiff told you that when he was given Good
Time for the twenty-nine (29) years he had served he
would accept “C” Grade with good graces?
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
53
That plaintiff told you he should be classified into
either First, Second or Third Grade according to the
Illinois Laws?
That in answer to the above statement you produced
a Volume of the Illinois Revised Statutes, 1967, which
contained Chapter 108 of such laws, and turned to Para
graphs 76-81 and plaintiff pointed out to you wherein
it spoke of First Grade and you then closed the book.
That on or about October 24, 1968, when plaintiff was
having legal papers notarized he asked of you how some
cinviets spent only three months in “C” Grade and you
informed him that convicts had the right to petition for
restoration of grade every three months?
That neither of these above provisions: all convicts
can be placed in “C” Grade and all convicts can petition
for restoration to the prior grade are contained in the
Inmates Rule Book.
That you are the Notary Public who notarized papers
being sent to the Courts.
That it is a condition precedent for mailing legal
papers to the Courts that the Institutional Files must be
furnished with a copy of all such papers.
That in the current Inmates Rule Book, page 16, there
is contained therein a merit time table which states, in
part, as follows.
“MERIT TIME EARNED ON A SET.
“Continuance in
years from date of “Merit Time
arrest of date of earned in years, “Case reviewed
sentence months. in years, months.
yrs. Mo days yrs mo days
20 5 0 0 15 0 0
11 2 9 0 8 3 0
That plaintiff was received in the Illinois State Peni
tentiary, Joliet, Illinois, on July 12, 1939.
That plaintiff appeared before the Parole Board at
Menard, Penitentiary and received a continuance until
July 1970.
That taking from his entrance in 1939 until 1970
plaintiff has received thirty-one (31) years of continu
ances.
54
That taking the above table extracts as a guide plain
tiff can be said to- be entitled to seven (7) years and
nine (9) months Merit Time, less time lost, and there
fore can be said to only have to serve twenty-three (23)
YEARS AND THREE (3) months to have his ease re
viewed by the Parole Board.
That since plaintiff has now served twenty-nine (29)
years and four (4) months, which is six (6) years and
one (1) month over the required twenty-three (23) years
and three (3) months set forth in the table in the In
mates Rule Book.
That you exclude prisoners receiving an undated con
tinuance from the benefits of the Merit Time Tables.
That prisoners serving definite sentences receive un
dated continuances.
That you received the Service Copy of these admissions
and interrogatories typed upon used papers.
Respectfully submitted
/ s / Francis Haines
Plaintiff
55
No. CV 68-83 D
[File Endorsement Omitted]
F rancis Haines, plaintiff
vs.
Otto J. Kerner, et al., defendants
Request for Interrogatories P ursuant to Rule 33,
F ederal Rules of Civil P rocedure—Filed Novem
ber 21, 1968
Plaintiff, Francis Haines, requests that Defendant
Donald Gentsch, within ten days after allowance of these
interrogatories by the Court, to answer the following
interrogatories for the purpose of this action only and
subject to all pertinent objections to admissibility which
may be interposed at the trial.
As Record Clerk at Menard Prison, do you maintain
or possess any copy of the Daily Journal required to be
kept by the Department of Public Safety by Illinois Re
vised Statutes, 1967, Ch. 108, Par. 17?
In what manner does the Progressive Merit System
Board act in demoting convicts, en bloc or as individuals?
During your tenure as a member of the Progressive
Merit System Board has any convict ever been given the
opportunity to be heard in defense of the charges?
Does the Ledger Book which was used to show plaintiff
that all prisoners could be placed in “C” Grade contain
all the institutional rules?
That the placing of an inmate in “C” Grade is a disci
plinary action?
Do you know of, as Record Clerk, of any classification
of the convicts pursuant to the requirements of Illinois
Revised Statutes, 1967, Ch. 108, Pars. 76-81?
Do you know of any interpretation of Illinois Revised
Statutes, 1967, Ch. 108, Pars. 76-81, which construes it
so as to permit disciplinary action to be taken there
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
56
under, either by the Courts, the Attorney General or the
prison administration?
Who wrote up the plaintiff for consideration by the
Progressive Merit System Board for demotion?
Is there a copy of such report for demotion contained
in the Daily Journal of the Institution Files?
Where is the rule pertaining to the right of an inmate
to petition for restoration to Grade contained?
How many other Progressive Merit System Rules,
other than the two herein spoken of, are in existence
and not contained in the Inmates Rule Book?
If such above rules exist, where are they contained?
Where is the rule which requires a copy of all papers
being sent to the Courts be furnished for the Institu
tional Files contained?
What becomes of such copies furnished to the Institu
tional files, is information concerning them given either
to Law Enforcing Officials, Courts or the Parole Board?
Are convicts serving Definte Sentences for the crime
of Burglary, other than those convicted as Habitual
Criminals, given Good Time as provided by law, for
diminution of their maximum term?
Is there any Order in the Institution Files, similar
to the below quoted Bulletin?
“November 18, 1955
Bulletin No. 246.
“Quoted below is a copy of the Order received from
the Parole and Pardon Board dated November 9th.
“Commencing with the December 1955, parole docket
and all future dockets, inmates whose names appear
thereon who are out of grade, or in solitary confine
ment, shall not appear before members of the Board
for hearing.
“Their cases shall be continued until such time as
they have made grade or have been released from
solitary confinement.
(Signed) J. E. Ragen
Warden”
57
The above being listed as Bulletin No. 246, dated No
vember 9th, 1955, at Statesville Branch?
Are you aware of the Opinion of the Attorney Gen
eral of Illinois, No. 298, p. 77, 1944 (dated April 19,
1944, therein is said in the final Paragraph thereof,
that:
“Paragraph 807, Chapter 38, Illinois Revised Stat
utes, 1943, supra, explicitly provides for the dis
charge of a prisoner at the expiration of the maxi
mum term provided by law for the offense for which
a prisoner is committed, making allowance for good
time as provided by law.”
In view of the statement of the Attorney General that
allowance must be made for Good Time upon the Maxi
mum Sentence how is such Good Time computed in rela
tion to the Plaintiff’s Sentence?
Has the Progressive Merit System Board made any
Rules and Regulations concerning what items an inmate
in “C” Grade may purchase in the Commissary?
If so, has the Defendant Sheets been given any au
thority to alter, amend or modify the same?
If the Progressive Merit System Board has made any
rules or regulations concerning Commissary purchases
by inmates in “C” Grade where and how can such be
learned?
Respectfully submitted
/ s / Francis Haines
Plaintiff
58
Cv. 68-83-D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
v.
Otto J. K e r n er , Former Governor, State of Illinois, Chi
cago, Illinois ; Ross V. R a n d o lph , Director of Public
Safety, State of Illinois, Springfield, Illinois; M ax P.
F rye , Warden; Le w is C. L e n c e , Assistant Warden;
P aul V. Sy m pso n , Senior Guard Captain; R ussell
Le n c e , Guard Captain; E. Rogers, Guard Lieuten
ant; D onald Ge n t s c h , Record Clerk; W illia m
Sh e e t s , Commissary Officer; P a ul T. D u n c a n ,
Guard, all of the Illinois State Penitentiary, Menard,
Illinois 62259, d efen d a n ts
Order D ism issin g Co m pl a in t—
Entered December 19, 1968
Motion of the defendants to dismiss the complaint
filed by the plaintiff having come on for hearing, briefs
having been filed, and the court being fully advised in
the premises finds that this is a civil rights action for
damages in the amount of $250,000.00 for depriviation
of plaintiff’s rights by means of conspiracy by the de
fendants,
The complaint alleges that the plaintiff an inmate of
the Illinois State Penitentiary at Menard, Illinois, hit
another inmate with a shovel. The plaintiff alleges that
he would not reveal to the officers the reason for his
action and disciplinary measures were taken by the
prison authorities and the plaintiff was demoted to Grade
“C” and a demotion to this grade causes the inmate to
lose certain privileges. The plaintiff alleges that he does
not come under the grade system inasmuch as he received
a life sentence. Illinois Revised Statutes, Ch. 108, § 10
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ILLINOIS
59
provides for the “Powers and duties of Department of
Public Safety” and reads in part as follows:
“The Department shall make and enforce all such
general rules, regulations and orders for the govern
ment and discipline of the penitentiary as it may
deem expedient . . .
In accordance with this authority the Parole and Pardon
Board enacted certain rules and regulations. Rule 1 pro
vides in part as follows:
“ (C) Every person sentenced to the penitentiary
regardless of when sentenced, and regardless of the
length of sentence shall be eligible for parole at the
end of 20 years unless his or her minimum sen
tence, less “Good Time” is less than 20 years.
“In each case ‘Good Time’ shall be deducted as
prescribed by the rule of the Department of Public
Safety providing for the diminution of sentences as
required by statute, hereinafter referred to as ‘Good
Time’, as distinguished from ‘Merit Time’.”
Illinois Revised Statutes, Ch. 108, § 45 provides as fol
lows:
“The Department of Public Safety is authorized
and directed to prescribe reasonable rules and regu
lations for the diminution of sentences on account
of good conduct, of persons heretofore and hereafter
convicted of crime, who are confined in the State
penal and reformatory institutions.”
Except under exceptional circumstances, internal matters
in state penitentiaries are sole concern of states and
federal courts will not inquire concerning them. U.S. ex
rel. Lee v. People of State of Illinois, C.A. 111., 1965,
343 F. 2d 120; U.S. ex rel. Knight v. Ragen, C.A. Ill,
1964, 337 F. 2d 425, certiorari denied 380 U.S. 985. This
plaintiff has failed to show that the defendants, while
acting under color of state law or in conspiracy with
each other, deprived or abridged his federally protected
rights, privileges, or immunities as required by 42 U.S.C.
§ 1983 and § 1985(2). The defendants were merely car-
60
IT IS THEREFORE ORDERED that the motion to
dismiss be, and is hereby, allowed, and the cause of ac
tion is dismissed.
Entered this 19th day of December, 1968.
/ s / Henry S. Wise
United States District Judge
rying out the rules and regulations of the institution as
provided by law.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ILLINOIS
Cv. 68-83-D
[File Endorsement Omitted]
F rancis H a in e s , p l a in t if f
v.
Otto J. K ern er , et a l ., defen da nts
Order D en y in g M otion for R ehea rin g—
Entered January 8, 1969
Motion of plaintiff to reconsider and set aside order
dismissing complaint entered December 20, 1968, having
come on for hearing, and the court being fully advised
in the premises finds its order of December 20, 1968
covers the issues involved and no change will be made
as to said order.
IT IS THEREFORE ORDERED that the motion for
reconsideration and setting aside of order dismissing
complaint entered by this court on December 20, 1968
be, and is hereby, denied.
Entered this 8th day of January, 1969.
/ s / Henry S. Wise
United States District Judge
CV 68-83-D
[File Endorsement Omitted]
F rancis Haines, plaintiff
61
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
v.
Otto J. Keener, et al., defendants
Motion for Leave to F ile and P rosecute Appeal in
F orma Pauperis, P ursant to Title 28 United
States Code, Section 1915 (a) and Rule 75 (m)
F ederal Rules of Civil P rocedure— F iled January
31, 1969
Francis Haines, plaintiff in the above entitled cause,
moves the Court that he be permitted leave to prosecute
his appeal in Forma Pauperis as provided in Title 28,
United States Code, Section 1915 (a) and Rule 75 (m),
Federal Rules of Civil Procedure, construed in Adkins v.
Dupont, 335 U. S. 331.
In support of his above action plaintiff avers that he
presents his motion pursuant to the teachings of Adkins
v. Dupont, 335 U. S. 331, at 337, construing Rule 75
(m), Federal Rules of Civil Procedure.
In further support of his motion plaintiff avers that
he will present typewritten Transcripts of the Record to
the United States Court of Appeals.
In further support of his motion plaintiff avers that
he will pay the filing fee in the Court of Appeals, which
he understands to be Twenty-five ($25,00) Dollars.
In further support of his motion the plaintiff avers
that he included in his Motion of Appeal the specific
questions upon which he desires to appeal.
In further support of his above motion plaintiff avers
that he is sending to borrow the money to pay the filing
fee in the Court of Appeals.
62
/s,/ Francis Haines
Plaintiff-Appellant, Pro Se
Reg. No. 16348
Box 711
Menard, 111. 62259
Plaintiff hereto' attaches his Affidavit of Fom a Pau
peris, made Pursuant to Adkins v. Dupont, 335 U. S. 331.
Respectfully submitted
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ILLINOIS
CV 68-83-D
[File Endorsement Omitted]
F rancis Haines, plaintiff
v.
Otto J. Kerner, et al., dependants
Notice of Appeal—Filed February 13, 1969
To : Attorney General of Illinois
160 No. LaSalle St.
Chicago, 111. 60601
You will please take notice that the Plaintiff herein,
Francis Haines, has filed in the Office of the Clerk of
the United States District Court, Eastern District of
Illinois, his notice of appeal by him, from the Judgments
entered in the case, wherein the judgment of the said
Court was that the actions complained of were taken
under and warranted by law, and ordered that the said
63
Complaint be dismissed upon the Motion to Dismiss by
the Attorney General of Illinois.
That, therefore, Plaintiff herein notifies the Defend
ants that he has filed his Notice of Appeal to the Circuit
Court of Appeals for the Seventh Circuit.
From the entire judgment of the District Court afore
said and his grounds for said appeal, the errors relied
upon are:
1. That the United States District Court, Eastern
District of Illinois, erred in deciding grave constitutional
matters upon a Motion to Dismiss and without hearing
the facts and the law.
2. That the United States District Court, Eastern
District of Illinois, erred in holding that the Complaint
failed to state a valid cause of action under the Federal
Civil Rights Acts.
3. That the United States District Court, Eastern
District of Illinois, erred in failing and refusing to fol
low the teachings of the United States Supreme Court
in Screws v. United States, 325 U. S. 91, 104, that the
statutory protection of the Federal Civil Rights Acts,
extends to every right “which has been made specific by
the express terms of the Constitution and Laws of the
United States or by decisions interpreting them.”
4. That the United States District Court, Eastern
District of Illinois, erred in failing and refusing to fol
low the teachings of the United States Supreme Court
in Robinson v. California, 370 U. S. 660, 666, and Mr.
Justice Douglas in concurring at 370 U. S. 675, that the
Eighth Amendment was applicable to the States, as said
in Wright v. McMann, 387 F. 2d 519, 522, and Jackson
et al. v. Bishop (8 Cir. December 9, 1968), slip opinion
page 11, Nos. 18957-59.
5. That the United States District Court, Eastern
District of Illinois, erred in failing and refusing to fol
low the teachings of the United States Supreme Court
in Cooper v. Pate, 378 U. S. 546, that upon a Motion
to Dismiss the Court must accept all facts as true, and
as set forth and done in Picking v. Pennsylvania Ry. Co.,
151 F. 2d 240, 246, cert, denied 332 U. S, 766; Wright
v. McMann, 387 F. 2d. 519-522.
64
6. That the United States District Court, Eastern
District of Illinois, Honorable Henry S. Wise, Judge
Presiding, has sat in review of prison rules and regula
tions which he had approved as a Member of the Illinois
Parole Board on May 8, 1962, and contained in a Rule
Book entitled “Rules and Statutes relating to Parole and
Pardons”, as distributed in the Illinois State Peniten
tiary System.
7. That the United States District Court, Eastern
District of Illinois, erred in failing and refusing to con
sider the language of Illinois Statutes of 1868, Ch. 81,
Par. 37, which define “solitary confinement” as unusual
confinement and therefore within the proscription of the
Eighth and Fourteenth Amendments of the Constitution
of the United States.
,/s/ Francis Haines
Plaintiff, Pro Se
Reg. No. 16348
Box 711
Menard, 111. 62259
[Certificate of Service (Omitted in Printing)]
65
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
September Term, 1969—April Session, 1970
No. 17511
F rancis Haines, plaintiff-appellant
v.
Otto J . Kerner, Former Governor, State of Illinois, Chi
cago, Illinois; Ross V. Randolph, Director of Public
Safety, State of Illinois, Springfield, Illinois; Max P.
F rye, Warden; Lewis C. Lence, Assistant Warden;
J effie Biggs, Assistant Warden; P aul V. Sympson,
Senior Guard Captain; Russell Lence, Guard Cap
tain; E. Rogers, Guard Lieutenant; Donald Gentsch,
Record Clerk; W illiam Sheets, Commissary Officer;
P aul T. Duncan, Guard, all of the Illinois State Pen
itentiary, Menard, Illinois 62259, defendants-appel-
LEES
Appeal F rom the U nited States D istrict Court
for the E astern District of Illinois
Opinion—May 25, 1970
Before E noch, Senior Circuit Judge, F airchild, Cir
cuit Judge, and Grant, District Judge.*
E noch, Senior Circuit Judge. Plaintiff-appellant Fran
cis Haines, brought suit in the United States District
Court, pursuant to the Civil Rights statutes, Title 28
U.S.C. § 1343(3) and Title 42 U.S.C. §1981, in forma
pauperis, to recover a total of $500,000 as damages for
deprivation of his rights, under Title 42 U.S.C. §§ 1981,
1983 and 1985(2).
* Judge Grant from the Northern District of Indiana is sitting by
designation.
66
Plaintiff’s Complaint states that he is confined in the
Illinois State Penitentiary at Menard, Illinois. He de
scribes the defendants, as officers and employees of the
State of Illinois and as conspiring among themselves and
with others, directly or through agents, to deny Plaintiff
his Constitutional rights, principally, to be free of cruel
and unusual punishments and not to be deprived of
liberty or property without due process of law.
As Plaintiff, in his brief, describes the incident out
of which this action arose, he was engaged in an argu
ment with two other inmates in the course of which he
struck one with a shovel. He states that he refused to
explain his action or to discuss the incident with the
investigating prison authorities, as a result of which he
was placed in solitary confinement for a period of fifteen
days. Plaintiff says he is 66 years of age and has a foot
disability discernable by X-ray for which he was award
ed compensation in a hearing before the Illinois Indus
trial Commission. He found solitary confinement with
its attendant rigorous conditions particularly onerous,
and he considers it to be cruel and unusual punishment
improperly imposed without a court trial. He was also
classified as “C” under the Progressive Merit System,
which he explains in his Complaint indicated unsatisfac
tory behavior and entailed a loss of privileges such as
commissary rights and the right to earn “merit time.”
The Defendants moved to dismiss the Complaint for
failure to state a cause of action on which relief might
be granted. The District Judge granted this motion and
appeal followed.
State prison officials are vested with wide discretion,
and discipline reasonably maintained in state prisons is
not subject to our supervisory direction.
Apart from purely conclusory statements, the allega
tions of Plaintiff’s Complaint do not- show that the De
fendants acting under color of state law or in conspiracy
abridged his Constitutional rights, privileges or immuni
ties within the scope of the Civil Rights statutes on which
he relies. Cf Henderson v. Pate, 7 Cir., 1969, 409 F, 2d
507, 508, cert. den. 396 U.S. 914.
The decision of the District Judge is affirmed.
Affirmed.
67
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
Before Hon. W in G. E noch, Senior Circuit Judge
Hon. Thomas E. F airchild, Circuit Judge
Hon. Robert A. Grant, District Judge
No. 17511
F rancis Haines, plaintiff-appellant
vs.
Otto J. Kerner, Former Governor, State of Illinois,
etc., et al., defendants-appellees
Appeal F rom the United States District Court
for the Eastern District of Illinois
J udgment—May 25, 1970
This cause came on to be heard on the transcript of
the record from the United States District Court for the
Eastern District of Illinois, and was submitted to the
Court without oral argument.
On consideration whereof, it is ordered and adjudged
by this court that the judgment of the said District
Court in this cause appealed from be, and the same is
hereby, AFFIRMED, in accordance with the opinion of
this Court filed this day.
68
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Before Hon. W in G. E noch, Sr. Circuit Judge
Hon. Thomas E. F airchild, Circuit Judge
Hon. Robert A. Grant, District Judge
No. 17511
F rancis Haines, plaintiff-appellant
vs.
Otto J. Kerner, Former Governor, State of Illinois,
ET AL., DEFENDANTS-APPELLEES
Appeal F rom the United States District Court
for the Eastern District of Illinois
Order Denying Rehearing—June 19, 1970
On consderation of the petition for rehearing and sug
gestion that it be heard en banc filed in the above-en
titled cause, no judge in active service having requested
a vote thereon, nor any judge voted to grant the sugges
tion, and all members of the panel having voted to deny
a rehearing,
IT IS ORDERED that the petition for a rehearing in
the above-entitled cause be and the same is hereby denied.
69
SUPREME COURT OF THE UNITED STATES
No. 5940, October Term, 1970
F rancis Haines, petitioner
v.
Otto J. Kerner, Former Governor,
State of Illinois, et al.
On petition for writ of Certiorari to the United States
Circuit Court of Appeals for the Seventh Circuit.
On consideration of the motion for leave to proceed
herein in forma pauperis and of the petition for writ
of certiorari, it is orderd by this Court that the motion
to proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted.
March 8, 1971
• f r U. S . GOVERNMENT PRINTING OFFICE; 1 9 7 1 4 2 5 9 2 2 6 6 7