Taylor v. Frey

NO. 5-08-0210
NOTICE
Decision filed 01/24/11. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
COREY A. TAYLOR, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Alexander County.
)
v. ) No. 07-MR-24
)
R. SHELTON FREY, KEN )
BARTLEY, and DAVID M ITCHELL, ) Honorable
) Charles C. Cavaness,
Defendants-Appellees. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Goldenhersh and W elch concurred in the judgment and opinion.
OPINION
Corey A. Taylor, inmate No. B17010 in the Department of Corrections (Department),
appeals pro se from the dismissal of his amended complaint for mandamus relief, a
declaratory judgment, and a permanent injunction. The complaint was dismissed on the
motion of the defendants, R. Shelton Frey, a former warden of Tamms Correctional Center
(Tamms), Ken Bartley, the then-current warden of Tamms, and David Mitchell, an employee
of the Department. Taylor seeks the reversal of the trial court's order and the remand of the
cause to the circuit court. We affirm.
BACKGROUND
Taylor is an inmate in the Department who is serving a 75-year sentence for first-
degree murder and concurrent 75-year sentences for robbery and burglary. People v. Taylor,
235 Ill. App. 3d 763 (1992). His projected release date is February 19, 2039. Taylor has
been housed at Tamms since September 2, 1998. Between that date and May 22, 2007, he
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received 132 disciplinary tickets for violating various institutional rules.
On April 20, 2007, Taylor filed pro se a complaint seeking mandamus relief, a
declaratory judgment, and a perm anent injunction. On October 22, 2007, he filed an
amended complaint, in which he again sought mandamus, declaratory, and injunctive relief.
Taylor asserted that his right to due process had been violated in various ways in disciplinary
proceedings that had been conducted at Tamms between April 29, 2005, and March 20,
2006. He alleged that as a result of the allegedly improper disciplinary proceedings, he had
been assigned to disciplinary segregation status for a total of 22 months, he had been reduced
to C-grade for 25 months, and his commissary privileges had been restricted for 25 months.
Taylor also lost one month of good-conduct credit when he was found guilty of unauthorized
solicitation of personal information. He claimed that his delay in filing his complaint was
excusable because of a high turnover rate of chief administrative officers at Tamms, his
efforts to resolve his grievances with successive chief administrative officers, and his
attempts to solicit legal help from entities outside of the penitentiary prior to seeking redress
in the circuit court.
Taylor sought an order of mandamus to compel the defendants to hold new hearings
on the disciplinary tickets that complied with state and federal due process requirements, a
declaration that the disciplinary proceedings had violated his right to due process under state
and federal law, and an injunction prohibiting the defendants from abrogating his due process
rights in future disciplinary proceedings. Appended to the complaint were copies of
adjustment committee summaries, administrative review board decisions, and four letters that
had been directed to the plaintiff from Department officials, the Office of the Illinois
Attorney General, and a prisoners' rights organization. Three of these letters postdated the
original complaint.
On November 27, 2007, the defendants filed a combined motion pursuant to section
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2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2006)) to dismiss
the amended complaint. They asserted that the complaint was subject to a dismissal under
section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)) because it failed to state a cause
of action. They argued that the complaint and its attachments established that in the only
disciplinary proceeding that had resulted in the loss of good-conduct credit, Taylor had been
afforded all the due process to which he was entitled. They also argued that the other
disciplinary actions did not implicate his due process rights because they had not resulted in
any loss of good-conduct credit. They argued further that his complaint was barred by
laches because it was untimely filed.
The defendants asserted that the mandamus count of the complaint was subject to a
dismissal under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (W est 2006)).
They contended that the exhibits to the complaint and a document in Taylor's master file
related to the only disciplinary action for which he had lost good-conduct credit established
that he had failed to request any witnesses and that he had been afforded adequate due
process in the proceedings. A copy of Taylor's May 10, 2005, disciplinary report for
solicitation of unauthorized personal information was appended to the defendants' motion.
The witness-request form was still attached to the form. An affidavit of the Tamms records
keeper attested that the copy of the disciplinary report was true and correct.
On February 7, 2008, Taylor filed a motion in opposition to the defendants' motion
to dismiss his complaint. He reiterated the allegations of his complaint, asserted that he had
provided a reasonable explanation for his failure to file the complaint within six months of
the events that formed the basis of his complaint, and contended that laches was inapplicable
because the defendants had failed to assert that they had been prejudiced by his delay in
filing the complaint. On April 2, 2008, the judge dismissed the complaint in a docket sheet
entry. He found that mandamus relief was barred by the doctrine of laches because the
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complaint had not been filed in a timely manner and that Taylor had failed to provide a
reasonable excuse for his dilatory filing. He also ruled that the attachments to the complaint
substantiated that the defendants had conducted Taylor's disciplinary proceedings in a
manner that provided him with the quantum of due process to which he had been entitled.
STANDARD OF REVIEW
The grant of a motion to dismiss for a failure to state a cause of action or on the basis
of defects or defenses in the pleadings is subject to de novo review. Rodriguez v. Illinois
Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007). As a consequence, the grant of
a hybrid motion to dismiss filed pursuant to section 2-619.1 of the Code is also subject to de
novo review. McGee v. Snyder, 326 Ill. App. 3d 343, 347 (2001). This section allows a
litigant to file as a single motion in any combination a section 2-615 motion for an
involuntary dismissal for a failure to state a cause of action, a section 2-619 motion for an
involuntary dismissal based on certain defects or defenses, such as laches, or a section 2-
1005 (735 ILCS 5/2-1005 (West 2006)) motion for a summary judgment. 735 ILCS 5/2-
619.1 (W est 2006). The defendants in the case at bar sought the dismissal of Taylor's
complaint under sections 2-615 and 2-619. Where a dismissal is proper as a matter of law,
the circuit court may be affirmed on any basis supported by the record. Rodriguez, 376 Ill.
App. 3d at 433.
A section 2-615 motion to dismiss admits all the well-pleaded facts and attacks the
legal sufficiency of the complaint. Ford v. Walker, 377 Ill. App. 3d 1120, 1124 (2007).
Under that section, "[d]ismissal is appropriate only where, viewing the allegations in the light
most favorable to the plaintiff, it is clear that no set of facts can be proved under the
pleadings that will entitle the plaintiff to relief." Gilchrist v. Synder, 351 Ill. App. 3d 639,
642 (2004). In ruling on a section 2-615 motion, the court may take into consideration
documents and exhibits that have been incorporated into the pleadings.
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A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and
raises defects, defenses, or other affirmative matters that appear on the face of the complaint
or are established by external submissions and that act to defeat the plaintiff's claim. Neppl
v. Murphy, 316 Ill. App. 3d 581, 584 (2000). "[A] section 2-619 proceeding enables the
court to dismiss the complaint after considering issues of law or easily proved issues of fact."
Id. at 585.
ANALYSIS
Initially, we observe that Taylor has appended documents to his brief that were not
made a part of the record on appeal. Generally, attachments to appellate briefs that are not
otherwise of record are not properly before a reviewing court and cannot be used to
supplement the record. Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine
Wine, Ltd., 392 Ill. App. 3d 1, 14 (2009). In resolving this appeal, we will not consider these
documents or any argument that is based on them.
On appeal, Taylor argues that the court improperly granted the motion to dismiss
because he asserted reasons for his delay in filing and the defendants did not allege any
prejudice on their part. He also contends that his complaint clearly states a cause of action.
Taylor argues that he was denied procedural due process in his disciplinary hearings when
he was not allowed to request witnesses, was not provided a written statement of the
witnesses' testimony, was not allowed live witness testimony, was subject to a partial fact
finder, and exculpatory evidence was not considered on his behalf. He asserts that he has
a protectable liberty interest in avoiding disciplinary segregation.
In response, the defendants argue that Taylor was not entitled to due process in any
of the hearings, except for the May 10, 2005, hearing, because he was not deprived of any
liberty interest. They do acknowledge that on May 10, 2005, Taylor was demerited of one
month of good-time credit, which has been established to be a protected liberty interest.
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However, they argue that he was afforded the proper due process for that hearing. They also
contend that the circuit court was correct in granting the motion to dismiss on laches grounds
because the action was not brought within six months and no reasonable explanation was
provided for the delay.
I. Liberty Interests
We first address the issue of liberty interests to determine if the prisoner was entitled
to due process during his disciplinary hearings. In certain instances, a state may create a
protected liberty interest. Sandin v. Conner, 515 U.S. 472, 483 (1995). However, in the case
of prisoners, "these interests will be generally limited to freedom from restraint *** [that]
imposes atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life." Id. at 484. It has been held that a loss of good-time credit will implicate a
protected liberty interest. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). However, the
United States Supreme Court held in Sandin that a prisoner's transfer to disciplinary
segregation was not considered to be an "atypical, significant deprivation." Sandin, 515 U.S.
at 486.
In Sandin, the prisoner was housed in a Hawaii prison where, he claimed, he was
denied due process when he was denied witnesses at a disciplinary hearing as a result of
which he received a punishment of 30 days of disciplinary segregation. Id. at 475. The
Court concluded that the prisoner being placed in disciplinary segregation did not impose an
"atypical, significant deprivation." Id. at 486. The Court reasoned that (1) the conditions
of disciplinary segregation and administrative segregation were equally as harsh with only
a few exceptions, (2) the placement did not cause a major departure from the prisoner's basic
conditions, and (3) the situation did not affect the duration of the prisoner's sentence. Id.It concluded, "The regime to which he was subjected as a result of the misconduct hearing
was within the range of confinement to be normally expected for one serving an
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indeterminate term of 30 years to life." Id. at 487.
The facts in the instant case are similar to the facts in Sandin. Here, Taylor argues
that being placed in disciplinary segregation at Tamms is an "atypical and significant
hardship." He argues that at Tamms there is a significant difference between the conditions
of disciplinary segregation and the conditions of administrative segregation. We disagree.
Based on the conditions alleged in Taylor's complaint, we conclude that Taylor's
confinement to disciplinary segregation for a limited amount of time when he is already
housed at a supermaximum security prison does not constitute the deprivation required to
trigger the standard for a cognizable liberty interest. It has been held that the transfer into
Tamms should be afforded due process (Westefer v. Snyder, 725 F. Supp. 2d 735 (S.D. Ill.
2010)), but in the situation when a prisoner is already confined there, we do not agree that
a transfer to disciplinary segregation within the prison should be afforded due process where
there is no loss of some other cognizable liberty interest. The conditions Taylor complains
of are not a dramatic departure from his prison environment, and they are within the range
to be expected by someone serving two concurrent 75-year sentences.
Therefore, we conclude that Taylor was only entitled to due process for the May 10,
2005, hearing, in which he lost good-time credit. Accordingly, we will only address the due
process issues in regards to the May 10, 2005, hearing.
For that hearing, Taylor asserts that his due process was violated when he was not
allowed to call witnesses and was denied the live testimony of those witnesses. He seeks
the remedies of mandamus and declaratory and injunctive relief.
II. Witness Requests
Taylor argues that the defendants intentionally denied his request for witnesses and
thus violated his right to due process. He attached an affidavit to his amended complaint,
which asserts that he did request witnesses, and a copy of the final summary disciplinary
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report, which states, "[D]efendant refused to participate in the proceedings." The defendants
argue that he was required to request witnesses using the slip at the bottom of the
disciplinary ticket and that the witnesses that he claimed to have requested w ould have
provided irrelevant testimony. The defendants also attached a copy of the original
disciplinary ticket to their motion to dismiss, which has the witness-request form at the
bottom still attached.
Inmates subject to disciplinary action that could result in the loss of good-time credit
are entitled to (1) notice of the disciplinary charges at least 24 hours prior to the hearing, (2)
when consistent with institutional safety and correctional goals, an opportunity to call
witnesses and present documentary evidence in defense, and (3) a written statement by the
fact finder of the evidence relied on and the reasons for the disciplinary actions. Wolff, 418
U.S. at 563-66. We note that in regard to the specific hearing of May 10, 2005, Taylor only
asserts a denial of his request for witnesses and their live testimony.
Department rules specify that inmates may request that a witness be interviewed, by
making a request in writing on the space at the bottom of the disciplinary report before the
disciplinary hearing. 20 Ill. Adm. Code §504.80(f)(2), amended at 27 Ill. Reg. 6229, 6230,
eff. May 1, 2003. In general, "[p]rison officials must have the necessary discretion to keep
the hearing within reasonable limits and to refuse to call witnesses that may create a risk of
reprisal or undermine authority" or where their testimony would be irrelevant or unnecessary.
Wolff, 418 U.S. at 566. "Since it is within the committee's discretion to deny an inmate's
witness request, such a decision may not be challenged in a mandamus petition." Ford, 377
Ill. App. 3d at 1125.
In the instant case, Taylor did not request witnesses in a correct manner provided for
by Department rules. The witness-request slip is still attached at the bottom of the
disciplinary ticket, and Taylor acknowledges that he did not use the slip. He asserts that he
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sent a written witness request through institutional mail. Any deviation from Department
rules, such as a request for witnesses at the disciplinary hearing, would have been completely
subject to the committee's discretion to accept. Even construing the facts to be most
favorable to Taylor, we conclude that this was not an acceptable manner for requesting a
witness by Department rules. Nor does he assert that he requested the witnesses at the
hearing. Furthermore, the summary report for the hearing states that he refused to participate
in the disciplinary hearing.
Moreover, regarding Taylor's request for a witness, he asserts that the prison official
whom he requested as a witness would have testified to the homosexual orientation of the
prison guard at issue in the May 10, 2005, hearing in which Taylor had been charged with
soliciting unauthorized personal information. Taylor's asserted reason for calling the witness
is to verify the sexuality of the guard whom he was trying to obtain information about and
not to establish Taylor's innocence. Thus, this witness testimony would have been irrelevant
and would have been in the discretion of the committee to deny.
We conclude that Taylor was not denied due process in regard to his witness request
for the hearing of May 10, 2005, because he failed to follow Department rules for requesting
witnesses and the testimony that he wanted to elicit would not have been relevant. In light
of our finding that no witnesses were requested in the correct manner, we do not address the
claim of a violation of due process by not allowing the live testimony of witnesses.
CONCLUSION
For the foregoing reasons, we conclude that Taylor's transfer into disciplinary
segregation was not an "atypical, significant deprivation" implicating a liberty interest. We
further conclude that he was allowed the appropriate due process for the hearing in which
he lost his good-time credit. Due to our holding in this case, it is unnecessary to discuss the
issue of laches. The circuit court's dismissal of Taylor's complaint is affirmed.
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Affirmed.
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NO. 5-08-0210
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
COREY A. TAYLOR, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Alexander County.
)
v. ) No. 07-MR-24
)
R. SHELTON FREY, KEN )
BARTLEY, and DAVID M ITCHELL, ) Honorable
) Charles C. Cavaness,
Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: January 24, 2011
___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, P.J.
Honorable Richard P. Goldenhersh, J., and
Honorable Thomas M . Welch, J.,
Concur
___________________________________________________________________________________
Pro se Corey A. Taylor, Reg. No.: B-17010, Tamms Correctional Center, P.O. Box 2000,
Appellant Tamms, IL 62988
___________________________________________________________________________________
Attorneys Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor
for General, M ary C. LaBrec, Assistant Attorney General, 100 W est Randolph Street,
Appellees 12th Floor, Chicago, IL 60601
___________________________________________________________________________________