Cebertowicz v. Baldwin

• Decision Date: 02 October 2017
• Docket Number: NO. 4–16–0535,4–16–0535
• Citation: 2017 IL App (4th) 160535,86 N.E.3d 374
• Parties: Kenneth H. CEBERTOWICZ, Plaintiff–Appellant, v. John BALDWIN and Jared Brunk, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 160535
86 N.E.3d 374

Kenneth H. CEBERTOWICZ, Plaintiff–Appellant,
v.
John BALDWIN and Jared Brunk, Defendants–Appellees.

NO. 4–16–0535

Appellate Court of Illinois, Fourth District.

Opinion filed October 2, 2017
Modified upon denial of rehearing November 3, 2017

Kenneth H. Cebertowicz, of Robinson, appellant pro se.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Honor K. Moore, Assistant Attorney General, of counsel), for appellees.

JUSTICE APPLETON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Kenneth H. Cebertowicz, an inmate in the Illinois Department of Corrections (Department), seeks an order of mandamus against defendants, John Baldwin, the Department's director, and Jared Brunk, the Department's chief financial officer, to compel their compliance with section 430.40(a) of the Department's rules, a section relating to photocopy fees ( 20 Ill. Adm. Code 430.40(a) (1984) ). (Actually, instead of Baldwin, plaintiff sued then-director Salvadore A. Godinez, but Baldwin has been automatically substituted for Godinez. See 735 ILCS 5/14–107 (West 2016).) The parties filed cross-motions for summary judgment. The trial court denied plaintiff's motion and granted defendants' motion. Plaintiff appeals. In our de novo review (see Lazenby v. Mark's Construction, Inc., 236 Ill.2d 83, 93, 337 Ill.Dec. 884, 923 N.E.2d 735 (2010) ), we affirm the trial court's judgment because,

86 N.E.3d 376

given the admitted facts, plaintiff suffered no prejudice from the Department's alleged violation of section 430.40(a).

¶ 2 I. BACKGROUND

¶ 3 On February 2, 2014, while he was confined in Lawrence Correctional Center, Sumner, Illinois, plaintiff filed a grievance. (According to the Department's website, of which we may take judicial notice ( People v. Mitchell, 403 Ill.App.3d 707, 709, 344 Ill.Dec. 130, 936 N.E.2d 659 (2010) ), plaintiff now is confined in Robinson Correctional Center, Robinson, Illinois.) His grievance pertained to the increased rates that Lawrence Correctional Center had begun charging for making photocopies in its law library. Previously, his inmate account was charged only 5 cents per photocopy. In November 2013, however, the rate doubled to 10 cents per one-sided photocopy and 20 cents per two-sided photocopy. He asked the law librarian, Kim Ulrich, the reason for the increase. She replied that the decision to increase the photocopy rate had come from the Department's headquarters, in Springfield, Illinois.

¶ 4 On October 11, 2013, Brunk sent a memorandum, from 1301 Concordia Court, Springfield, to "All Business Administrators" in the Department. The memorandum was titled "Copying Fees," and it directed as follows:

"Please be advised that effective November 1, 2013[,] all inmates are to be charged library copying fees of $0.10 per one-sided and $0.20 per double-sided documents. Revenue from these transactions shall be deposited into the 523 Fund within 10 working days of the following month. If there are any questions/concerns, please feel free to contact my office. Thank you."

¶ 5 Accordingly, on October 15, 2013, Marc Hodge, the chief administrative officer of Lawrence Correctional Center, issued "Warden's Bulletin 13–141" to "All Inmates" and "All Staff." The bulletin announced that, "[e]ffective [November 1, 2013], all inmates will be charged library copying fees of $0.10 per one-sided copy and $0.20 per double-sided documents."

¶ 6 In his grievance, which he filed directly with the administrative review board on February 2, 2014, plaintiff argued that this rate increase was calculated to generate a profit from inmates and not merely to recoup the Department's actual photocopying costs. To prove the alleged profit motive, he presented information he had obtained through requests pursuant to the Freedom of Information Act ( 5 ILCS 140/1 et seq. (West 2014)). He had found out that a ream of 500 sheets of paper cost the Department only $2.94, which amounted to about half a cent (0.0058 of a cent) per sheet. Another document, from the Department's contracting division, specifically stated it cost only 0.0025 of a cent per photocopy to use the photocopiers, which the Department rented. Adding those two numbers together (0.0058 + 0.0025), plaintiff concluded that the actual cost to Lawrence Correctional Center of a single photocopy was approximately 0.75 of a cent, compared to the 10 cents that Brunk had directed all facilities to begin charging. Plaintiff explained all this in the grievance form, in the space provided for the "Brief Summary of [the] Grievance."

¶ 7 Underneath that explanation was an area labeled "Counselor's Response (if applicable)." That area of the grievance form was blank.

¶ 8 On March 19, 2014, Sarah Johnson of the Department's administrative review board returned the grievance to plaintiff, along with an explanatory form titled "Return of Grievance or Correspondence." This form had an area labeled "Misdirected," and within that area the box next to

86 N.E.3d 377

the preprinted language "Contact your correctional counselor regarding this issue" was unchecked. Further down, toward the middle of the form, was an area labeled "Additional information required," and within that area the box likewise was unchecked next to the preprinted language "Provide a copy of the response to Offender's Grievance, DOC 0047, including the Grievance Officer's and Chief Administrative Officer's response, to appeal." Finally, in the bottom third of the form was an area labeled "No further redress," and within that area a box was checked next to the preprinted language "Not submitted in the timeframe outlined in Department Rule 504 [ (20 Ill. Adm. Code 504) ]; therefore, this issue will not be addressed further."

¶ 9 In his complaint (or petition) for mandamus, and in his motion for summary judgment, plaintiff argued that the new photocopying rate, dictated from Springfield headquarters to all the Department's facilities, violated section 3–4–3 of the Unified Code of Corrections (Unified Code) ( 730 ILCS 5/3–4–3 (West 2014) ) and section 430.40 of the Department's rules ( 20 Ill. Adm. Code 430.40 (1984) ) by "requir[ing] each institution to charge a standard fee per copy regardless of what an individual institution's [sic] actually pays per copy."

¶ 10 Defendants moved for summary judgment on five grounds. First, they argued that plaintiff lacked standing, and, in support of that argument, they cited Jackson v. Randle, 2011 IL App (4th) 100790, ¶ 14, 354 Ill.Dec. 256, 957 N.E.2d 572, Dupree v. Hardy, 2011 IL App (4th) 100351, ¶¶ 24–28, 355 Ill.Dec. 558, 960 N.E.2d 1, and Ashley v. Snyder, 316 Ill.App.3d 1252, 1258, 250 Ill.Dec. 900, 739 N.E.2d 897 (2000). Second, they argued that because plaintiff submitted his grievance after the expiration of the 60–day deadline in section 504.810(a) of the Department's rules ( 20 Ill. Adm. Code 504.810(a) (2017) ), he had failed to exhaust his administrative remedies. Third, they argued that the director lacked the duty and authority to grant the requested relief. Fourth, they argued that section 3–4–3 had nothing to do with photocopying costs. Fifth, they argued that they already were in compliance with section 430.40 because "Defendant Brunk [had] determined that, across facilities, the actual cost per copy worked out to 10 cents per single-sided page and 20 cents per double-sided page," and, "[t]herefore, Defendant Brunk [had] standardized copy fees to reflect actual cost per copy."

¶ 11 In a docket entry dated June 20, 2016, the trial court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment. The court based those rulings solely on the lack of standing:

"The Court finds, based upon the holdings in Jackson v. Randle, 2011 IL App (4th) 100790 [354 Ill.Dec. 256, 957 N.E.2d 572] [,] and Ashley v. Snyder, 316 Ill.App.3d 1252 [250 Ill.Dec. 900, 739 N.E.2d 897] (2000) [,] that the [Unified] Code *** and corresponding Department Rules were designed to provide guidance to prison officials in the administration of prisons, not to create more rights for inmates than those that are constitutionally required. In reliance on these holdings, the Court rules that the Unified Code and the Departmental Rules do not convey a private right of action for Plaintiff to bring this Complaint ***."

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 A. Plaintiff's Standing

¶ 15 In

86 N.E.3d 378

Jackson, 2011 IL App (4th) 100790, ¶¶ 1–2, 354 Ill.Dec. 256, 957 N.E.2d 572, a prisoner accused the Department and certain of its officers of violating section 3–7–2a of the Unified Code ( 730 ILCS 5/3–7–2a (West 2008) ) by overcharging him for commissary items. He sought declaratory and injunctive relief, as well as compensatory damages. Id.¶ 5. The defendants challenged his standing. Id.¶ 14. We concluded he lacked standing. Id.¶ 16. We reasoned as follows:

"Generally, the doctrine of standing is designed to ‘preclude persons who have no interest in a controversy from bringing suit.’ Glisson[v. City of Marion], 188 Ill.2d [211,] 221, 720 N.E.2d [1034,] 1039 [242 Ill.Dec. 79] [ (1999) ]. However, the doctrine of standing also precludes a plaintiff from bringing a private cause of action based on a statute unless the statute expressly confers standing on an individual or class to do so. See Glisson, 188 Ill.2d at 222 [242 Ill.Dec. 79, 720 N.E.2d at 1040] (rejecting the plaintiff's attempt to expand the doctrine of standing to include ‘member[s] of [a] class designed to be protected by the statute, or one for whose benefit the statute was enacted, and to whom a duty of compliance is owed’).

***

Here, [the plaintiff] sued [the] defendants, claiming that [the Department], through its commissary, had been overcharging him and other inmates in violation of section 3–7–2a of the Unified Code ( 730 ILCS 5/3–7–2a (West 2008) ), which, as we previously explained, outlines the additional percentage amount a prison

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