Montes v. Taylor

• Decision Date: 06 March 2013
• Docket Number: No. 4–12–0082.,4–12–0082.
• Citation: 2013 IL App (4th) 120082,985 N.E.2d 1037,369 Ill.Dec. 51
• Parties: Elliot A. MONTES, Plaintiff–Appellant, v. Gladyse TAYLOR, Individually; S.A. Godinez, in His Capacity as Director of the Department of Corrections; and Marcus Hardy, Individually and as Warden of the Stateville Correctional Center, Defendants–Appellees, and Randy Pfister, Assistant Warden of Operations at the Stateville Correctional Center; Unknown Persons Acting on Behalf of the Department of Corrections; and Unknown Persons Acting on Behalf of Stateville Correctional Center, Defendants.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 120082

985 N.E.2d 1037

369 Ill.Dec. 51

Elliot A. MONTES, Plaintiff–Appellant,

v. Gladyse TAYLOR, Individually; S.A. Godinez, in His Capacity as Director of the Department of Corrections; and Marcus Hardy, Individually and as Warden of the Stateville Correctional Center, Defendants–Appellees,andRandy Pfister, Assistant Warden of Operations at the Stateville Correctional Center; Unknown Persons Acting on Behalf of the Department of Corrections; and Unknown Persons Acting on Behalf of Stateville Correctional Center, Defendants.

No. 4–12–0082.

Appellate Court of Illinois, Fourth District.

March 6, 2013.

Elliot Montes, of Pontiac, appellant pro se.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Mary E. Welsh, Assistant Attorney General, of counsel), for appellees.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

[369 Ill.Dec. 53]¶ 1 Plaintiff, Elliot A. Montes, an inmate in the Illinois Department of Corrections (DOC), filed a petition seeking restoration of visitation privileges against defendants, Gladyse Taylor, individually; S.A. Godinez, DOC's Director; Marcus Hardy, individually and as warden of Stateville Correctional Center (Stateville); Randy Pfister, Stateville's assistant warden; and unknown persons acting on behalf of both DOC and Stateville. On the motion of defendants Taylor and Hardy, the trial court dismissed plaintiff's petition and he appeals. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 1, 2011, plaintiff filed a pro se “petition for deprivation of rights,” complaining his due process rights were violated by defendants' denial of visitation privileges with respect to one particular visitor, Barbara Brown. He asserted Brown was permanently restricted from visiting him after prison officials discovered a cellular phone in plaintiff's possession. Plaintiff argued he had a liberty interest in visitation that required he receive due process when that interest was restricted. He maintained his due process rights were violated because Brown's restriction was arbitrary and unsupported by any evidence connecting his misconduct in possessing electronic contraband with an abuse of the visiting process. Plaintiff cited to section 2–701 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2–701 (West 2010)) regarding declaratory judgment actions and requested a court order requiring defendants to “comply with and obey such laws, statutes, rules, directives[,] and regulations” governing a prisoner's right to receive visitation, as well as restoration of Brown's visitations privileges.

¶ 4 Documents attached to plaintiff's petition showed, on April 14, 2010, while imprisoned in DOC, he was found in possession of a cellular phone, and an adapter and cords used for charging the phone. He was issued a disciplinary ticket and, upon admitting that the offending materials belonged to him, found guilty of possessing electronic contraband, impeding or interfering with an investigation, and possessing contraband or unauthorized property. Following the April 2010 incident, Brown was placed on DOC's temporary visitor restriction list for “suspicion of bringing contraband into [a DOC] facility.” Ultimately, she was placed on a permanent restriction list. Documents further show plaintiff filed grievances, seeking to have Brown taken off restriction. Although plaintiff initially refused to provide information regarding how he received the cellular phone, his grievances alleged the phone was obtained from a correctional officer rather than Brown and that his last visit from Brown occurred two weeks prior to when the electronic contraband was discovered.

¶ 5 On August 18, 2011, defendants Taylor and Hardy filed a motion to dismiss pursuant to section 2–615 of the Civil Code (735 ILCS 5/2–615 (West 2010)). Based on plaintiff's requested relief, defendants treated his filing as a petition for mandamus relief. They asserted no violation of plaintiff's due process rights had occurred and argued he failed to allege facts sufficient to entitle him to mandamus relief.

¶ 6 On January 4, 2012, the trial court granted defendants' motion to dismiss. It stated as follows:

“Plaintiff references the [Civil Code] under [section 2–]701 which involves a declaratory judgment claim. Plaintiff has failed to set for [ sic ] the proper elements for a declaratory judgment. Moreover, as noted in the motion to dismiss, visitation privileges are discretionary. Therefore, they would not be subject to mandamus.”

The court also noted only defendants Taylor and Hardy had been properly served. It ordered all other defendants stricken for failure to prosecute.

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, plaintiff argues the trial court erred in granting defendants' motion to dismiss. He maintains he had a liberty interest in visitation, visitation could not be terminated without adherence to due process, and his due process rights were violated because Brown's permanent restriction was arbitrary and not based on misconduct that could be connected to an abuse of the visitation process.

¶ 10 “A section 2–615 motion to dismiss tests the legal sufficiency of a complaint.” Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318. “Under section 2–615, the critical question is whether the allegations in the complaint, construed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted.” Doe–3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 16, 362 Ill.Dec. 484, 973 N.E.2d 880. A dismissal pursuant to that section is subject to de novo review. Patrick Engineering, 2012 IL 113148, ¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318. [369 Ill.Dec. 55] ¶ 11 Initially on appeal, defendants argue plaintiff's petition was subject to dismissal for his failure to show exhaustion of his administrative remedies. They argue plaintiff's filings show he filed two grievances regarding the visitation issue but failed to show he pursued those grievances any further.

¶ 12 “A party aggrieved by an administrative decision cannot seek judicial review unless he has first pursued all available administrative remedies” and “[t]he doctrine of exhaustion of administrative remedies applies to grievances filed by inmates.” Ford v. Walker, 377 Ill.App.3d 1120, 1124, 320 Ill.Dec. 906, 888 N.E.2d 123, 126–27 (2007). Where an inmate fails to show his grievance had administrative finality, he does not meet his burden of showing exhaustion of administrative remedies. Ford, 377 Ill.App.3d at 1124, 320 Ill.Dec. 906, 888 N.E.2d at 127.

¶ 13 Plaintiff attached documentation to his petition that showed he filed two grievances complaining about Brown's visitation restriction. However, the record fails to reflect resolution of those grievances. As a result, plaintiff has failed to show administrative finality and exhaustion of his administrative remedies. Although the trial court dismissed plaintiff's complaint for other reasons, a reviewing court may affirm on any basis warranted by the record. See Reyes v. Walker, 358 Ill.App.3d 1122, 1124, 295 Ill.Dec. 546, 833 N.E.2d 379, 381 (2005). Here, plaintiff failed to exhaust administrative remedies and dismissal of his petition was warranted on that basis.

¶ 14 Dismissal of plaintiff's petition was also appropriate under section 2–615 for failure to state a cause of action upon which relief may be granted. Specifically, as the trial court found, plaintiff failed to state a claim for either mandamus or declaratory relief.

¶ 15 Plaintiff sought a court order requiring defendants “to immediately obey the laws, statutes, rules, directives[,] and regulations” which govern his rights and to restore Brown's visitation privileges. “ Mandamus is an extraordinary remedy used to compel a public official to perform a purely ministerial duty where no exercise of discretion is involved.” People ex rel. Alvarez v. Skryd, 241 Ill.2d 34, 38, 348 Ill.Dec. 384, 944 N.E.2d 337, 341 (2011). “[A]n inmate's claim of a due-process-rights violation can also state a cause of action for mandamus.” Knox v. Godinez, 2012 IL App (4th) 110325, ¶ 16, 359 Ill.Dec. 545, 966 N.E.2d 1233.

¶ 16 When seeking mandamus relief, a petitioner must establish “a clear right to the relief requested, a clear duty of the public official to act, and clear authority in the public official to comply with the writ.” Alvarez, 241 Ill.2d at 39, 348 Ill.Dec. 384, 944 N.E.2d at 341. “A plaintiff must set forth every material fact necessary to show he or she is entitled to a writ of mandamus, and the plaintiff bears the burden to establish a clear, legal right to it.” Lucas v. Taylor, 349 Ill.App.3d 995, 998, 285 Ill.Dec. 483, 812 N.E.2d 72, 75 (2004). “Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer's action is not subject to review or control by mandamus.” Chicago Ass'n of Commerce & Industry v. Regional Transportation Authority, 86 Ill.2d 179, 185, 56 Ill.Dec. 73, 427 N.E.2d 153, 156 (1981).

¶ 17 In his petition, plaintiff also cited section 2–701 of the Civil Code (735 ILCS 5/2–701 (West 2010)) regarding declaratory judgment actions. “[T]o state a cause of action for declaratory judgment, the plaintiff must assert the following: ‘ “(1) that he has a tangible legal interest with regard to the claim, (2) that the defendant's conduct is opposed to that interest,and (3) that there is an ongoing controversy between the parties that is likely to be prevented or resolved if the court decides the case.” ’ ” Knox, 2012 IL App (4th) 110325, ¶ 18, 359 Ill.Dec. 545, 966 N.E.2d 1233 (quoting Catom Trucking, Inc. v. City of Chicago, 2011 IL App (1st) 101146, ¶ 21, 351 Ill.Dec. 797, 952 N.E.2d 170, quoting Young v. Mory, 294 Ill.App.3d 839, 845, 228 Ill.Dec. 965, 690 N.E.2d 1040, 1044 (1998)).

¶ 18 As stated, plaintiff argues he had...