Franklin v. Baldwin

2021 IL App (4th) 200335-U

• Court: Appellate Court of Illinois
• Decided: April 22, 2021
• Docket: 4-20-0335
• Status: Unpublished

Opinion

NOTICE 2021 IL App (4th) 200335-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-20-0335 April 22, 2021 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

ALONZO FRANKLIN, ) Appeal from the Petitioner-Appellant, ) Circuit Court of v. ) Livingston County JOHN R. BALDWIN, in his Official Capacity as Director ) No. 18MR185 of Corrections; MICHAEL P. MELVIN, in His Official ) Capacity as the Warden of Pontiac Correctional Center; ) and ANDREW J. BUFFORD, TROY E. DAVIS, ) KENDRA R. WOLF, SHARON SIMPSON, MELISSA ) PHOENIX, and ALLISON LOVRANT, in Their Official ) Capacities as Employees of the Department of ) Corrections, ) Respondents ) (John R. Baldwin, Michael P. Melvin, Andrew J. Buford, ) Honorable Kendra R. Wolf, Sharon Simpson, and Allison Lovrant, ) Jennifer H. Bauknecht, Respondents-Appellees). ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.

ORDER

¶1 Held: The circuit court’s dismissal of petitioner’s petition for a writ of certiorari was proper for all but one of petitioner’s due process claims.

¶2 In December 2018, petitioner, Alonzo Franklin, filed a pro se petition for a writ of

certiorari against respondents, John R. Baldwin, in his official capacity as Director of

Corrections; Michael P. Melvin, in his official capacity as the warden of the Pontiac Correctional

Center; and Andrew J. Bufford, Troy E. Davis, Kendra R. Wolf, Sharon Simpson, Melissa

Phoenix, and Allison Lovrant, in their official capacities as employees of the Department of

Corrections (Department). In his petition, petitioner alleged his due process rights were violated because of respondents’ actions during disciplinary proceedings related to petitioner’s November

1, 2016, disciplinary report. The Livingston County circuit court dismissed respondents Davis

and Phoenix because they were not served. In May 2019, respondents Wolf, Bufford, Simpson,

Lovrant, and Melvin filed a motion to dismiss under section 2-619 of the Code of Civil

Procedure (Procedure Code) (735 ILCS 5/2-619 (West 2018)). In March 2020, respondent

Baldwin also filed a section 2-619 motion to dismiss. After a July 2020 hearing, the court

granted the motions to dismiss petitioner’s petition for a writ of certiorari.

¶3 Petitioner appeals, asserting the circuit court erred by dismissing his petition for a

writ of certiorari. We affirm in part, reverse in part, and remand the cause with directions.

¶4 I. BACKGROUND

¶5 On November 1, 2016, a disciplinary report was issued against petitioner,

asserting he violated Department regulation 205, “Security Threat Group or Unauthorized

Organizational Activity,” and regulation 310, “Abuse of Privileges.” See 20 Ill. Adm. Code

504.Appendix A (Nos. 205, 310) (2016). The disciplinary report noted the investigation of

petitioner took place between January 1, 2016, and November 2, 2016. The reporting employee

was respondent Bufford and respondent Lovrant signed the disciplinary report as the hearing

investigator. The disciplinary report asserted two confidential informants provided information

petitioner was a highly respected leader/“board member” of the Gangster Disciples. The names

of the informants were deliberately withheld for their safety. Information obtained from both

audio and “correspondence surveillance on no less than 23 different occasions” confirmed

petitioner’s active participation in the Gangster Disciples. The disciplinary report explained

petitioner used family members to contact high ranking street-level Gangster Disciples via a

three-way telephone conference. The report stated, “All source documentation will remain

-2- on-file with the Pontiac C.C. Intelligence Unit and may only be reviewed following proper chain

of command requests and procedures.” The disciplinary report was served on petitioner on

November 4, 2016. After a November 8, 2016, hearing, the adjustment committee found

petitioner guilty of both charges and imposed the following discipline: (1) one year of C grade,

(2) one year of segregation, (3) one year of revocation of good conduct credit, and (4) six months

of contact visits restriction. The final summary report was signed by respondents Davis, Wolf,

and Melvin.

¶6 Petitioner’s pro se petition for a writ of certiorari raised numerous due process

violations in the proceedings on the November 1, 2016, disciplinary report. Specifically,

petitioner asserted (1) respondent Bufford failed to comply with section 504.30 of Title 20 of the

Illinois Administrative Code (20 Ill. Adm. Code 504.30 (2016)), (2) the notice of the charges

against him was insufficient and prevented him from preparing an adequate defense, (3) the final

summary report does not explain the basis for the adjustment committee’s decision, (4) the final

summary report violated section 504.80 of Title 20 of the Illinois Administrative Code (20 Ill.

Adm. Code 504.80 (2016)), (5) the adjustment committee failed to call the requested witnesses

and review the audio and corresponding surveillance video, and (6) the prison review board also

denied him due process by failing to recognize the adjustment committee’s violation of his due

process rights. Petitioner attached the following documents to his petition: (1) the November 1,

2016, disciplinary report; (2) petitioner’s November 7, 2016, letter to the adjustment committee;

(3) petitioner’s December 11, 2016, grievance; (4) the adjustment committee’s final summary

report; (5) the May 20, 2017, grievance officer’s report by respondent Simpson; (6) the June 12,

2017, order by the administrative review board that reduced the revocation of petitioner’s good

conduct credits to two months and was signed by respondents Phoenix and Baldwin;

-3- (7) petitioner’s undated letter to the administrative review board; and (8) the September 20,

1981, memorandum from the adjustment committee to the administrative review board.

¶7 In May 2019, respondents Wolf, Bufford, Simpson, Lovrant, and Melvin filed

their section 2-619 motion to dismiss, contending petitioner’s petition should be dismissed with

prejudice because petitioner received all of the procedural protections required by Wolff v.

McDonnell, 418 U.S. 539 (1974). Petitioner filed a response.

¶8 At a July 2019 status hearing, the circuit court dismissed respondents Davis and

Phoenix because they had not been served and more than six months had lapsed. In February

2020, counsel for respondents Wolf, Bufford, Simpson, Lovrant, and Melvin entered her

appearance on behalf of respondent Baldwin and filed a section 2-619 motion to dismiss on his

behalf. Respondent Baldwin’s motion to dismiss also asserted petitioner had been afforded the

procedural protections provided by Wolff. Petitioner also filed a response to respondent

Baldwin’s motion to dismiss. Hereafter, “respondents” collectively refers to respondents Wolf,

Bufford, Simpson, Lovrant, Melvin, and Baldwin.

¶9 On July 8, 2020, the circuit court held a hearing on the two motions to dismiss.

At the conclusion of the hearing, the court dismissed petitioner’s petition for a writ of certiorari,

finding petitioner had received all of the due process rights afforded to him under Wolff.

¶ 10 On July 23, 2020, petitioner filed a timely notice of appeal from the circuit court’s

July 8, 2020, order in sufficient compliance with Illinois Supreme Court Rule 303 (eff. July 1,

2017). Thus, this court has jurisdiction of petitioner’s appeal under Illinois Supreme Court Rule

301 (eff. Feb. 1, 1994).

¶ 11 II. ANALYSIS

¶ 12 In this case, petitioner appeals from the circuit court’s dismissal of his petition for

-4- a writ of certiorari. The petition alleged petitioner’s due process rights were violated based on

respondents’ actions during the disciplinary proceeding related to a disciplinary ticket issued on

November 1, 2016. On appeal, respondents suggest their motion should have been brought

under section 2-615 of the Procedure Code (735 ILCS 5/2-615 (West 2018)).

¶ 13 Regardless of whether the circuit court’s considered respondents’ motions to

dismiss were brought under section 2-615 or 2-619, this court’s standard of review is the same.

Jane Doe-3 ex rel. Julie Doe-3 v. White, 409 Ill. App. 3d 1087, 1092, 951 N.E.2d 216, 223

(2011). We review de novo the circuit court’s dismissal. White, 409 Ill. App. 3d at 1092, 951

N.E.2d at 223. “In doing so, we will accept as true all well-pleaded factual allegations.” White,

409 Ill. App. 3d at 1092, 951 N.E.2d at 223. We can affirm the circuit court’s dismissal for any

reason found in the record. Akemann v. Quinn, 2014 IL App (4th) 130867, ¶ 21, 17 N.E.3d 223.

¶ 14 Our supreme court has held the proper analysis of an inmate’s allegations of

violations of Department regulations begins with a determination of whether the Department

regulations at issue create judicially enforceable rights for inmates. Fillmore v. Taylor, 2019 IL

122626, ¶ 38, 137 N.E.3d 779. “It is only if those regulations create judicially enforceable rights

for inmates that we consider whether plaintiff was entitled to mandamus or writ of certiorari

based upon defendants’ alleged failure to comply with those regulations.” Fillmore, 2019 IL

122626, ¶ 38. Ultimately, the Fillmore court determined that, “in the context of prison

disciplinary proceedings, a prisoner is entitled to due process protections, such as the procedural

protections set forth in Wolff, 418 U.S. 539, only when the penalty faced by the prisoner

implicates a liberty interest because it affects the nature or duration of his confinement.”

Fillmore, 2019 IL 122626, ¶ 48. Our supreme court further found, “ ‘[a]s a general rule, only

sanctions which result in loss of good conduct time credits for inmates who are eligible for

-5- release on mandatory supervision or which otherwise directly and adversely affect release on

mandatory supervision will impose upon a liberty interest.’ ” Fillmore, 2019 IL 122626, ¶ 56

(quoting Spicer v. Collins, 9 F. Supp. 2d 673, 685 (E.D. Tex. 1998)). Here, petitioner had two

months of good conduct credits revoked, and thus we will address petitioner’s due process

claims.

¶ 15 Under Wolff, when a prison disciplinary hearing may result in the loss of a

prisoner’s good conduct credits, the inmate must receive (1) advance written notice of the

disciplinary charges, (2) an opportunity, when consistent with institutional safety and

correctional goals, to call witnesses and present documentary evidence in his defense, and (3) a

written statement by the fact finder of the evidence relied on and the reasons for the disciplinary

action. Wolff, 418 U.S. at 563-67. Additionally, the prison disciplinary board’s findings must be

supported by some evidence in the record. Superintendent, Massachusetts Correctional

Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985).

¶ 16 On appeal, petitioner asserts his petition was sufficient to raise a due process

claim based on (1) the insufficiency of the notice of the charges against him which prevented

him from preparing a defense and (2) the adjustment committee’s failure to have the informants

called, interviewed, and considered as part of his defense and to review all audio and

corresponding surveillance. Respondents assert (1) petitioner has forfeited any challenge to the

denial of his other due process claims and (2) the notice of the charges against him was adequate

and thus did not state a due process claim. However, the respondents agree with petitioner he

stated a due process claim based on the failure to call his requested witness and provide him with

transcripts and recordings.

¶ 17 Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) provides arguments not

-6- raised in the opening brief are forfeited. In re Marriage of Kasprzyk, 2019 IL App (4th) 170838,

¶ 40, 128 N.E.3d 1105. Thus, petitioner forfeited all of the other due process claims raised in his

petition for a writ of certiorari besides the two he argued in his appellant brief.

¶ 18 On appeal, petitioner asserted he stated a claim of a due process violation based

on the insufficiency of the notice of the charges in this case. The Fillmore court found the notice

of the charges in that case did not constitute a due process violation. Fillmore, 2019 IL 122626,

¶ 58. There, the petitioner was served with an inmate disciplinary report on December 15, 2014,

and the adjustment committee hearing took place on December 19, 2014. Fillmore, 2019 IL

122626, ¶ 58. The inmate disciplinary report consisted of five pages and set forth the charges

and evidence against the petitioner. Fillmore, 2019 IL 122626, ¶ 58. The supreme court

concluded the petitioner did receive advanced written notice of the charges against him in

compliance with the first due process requirement set forth in Wolff. Fillmore, 2019 IL 122626,

¶ 58.

¶ 19 Here, petitioner received his disciplinary report on November 4, 2016, and the

adjustment committee hearing took place on November 8, 2016. The report set forth two

charges, gang or unauthorized organization activity and abuse of privileges. It further set forth

the nature of the two charged offenses on two pages. The charges noted the identity of the

confidential informants and when and where the confidential informants provided the

information had been withheld for safety. It also noted all source documentation was on file

with the Pontiac Correctional Center Intelligence Unit and could only be reviewed following

proper chain-of-command requests and procedures. Given the disciplinary report explained why

more specific information could not be provided, we find the disciplinary report in this case was

sufficient to comply with Wolff’s first due process requirement.

-7- ¶ 20 Petitioner also asserts he stated a due process claim based on the adjustment

committee’s failure to have the informants called, interviewed, and considered as part of his

defense and to review all audio and corresponding surveillance. He further notes prison officials

denied his witness and document request without cause or a reason. Petitioner attached

numerous documents to his petition. One was his November 7, 2016, letter to the adjustment

committee showing his witness and evidentiary requests. Petitioner also alleged in his petition

he made a verbal request at the hearing for review of the audio recordings and corresponding

surveillance. Moreover, petitioner attached the adjustment committee’s final summary report,

which stated “no witnesses requested” and did not provide a reason as to why petitioner’s

requested witnesses and evidence were not presented. The May 2017 grievance officer’s report

did state calling the confidential informants/sources would jeopardize their safety and disrupt the

security of the facility. The May 2017 report did not address the adjustment committee’s failure

to review recordings and transcripts.

¶ 21 In Fillmore, 2019 IL 122626, ¶ 60, the supreme court found the petitioner

sufficiently pled respondent’s denial of the petitioner’s witnesses and documentary evidence

without an explanation violated petitioner’s due process rights. The petitioner’s complaint

alleged he timely and properly submitted a witness request slip to the adjustment committee, in

which he requested witnesses and exculpatory evidence. Fillmore, 2019 IL 122626, ¶ 60. He

also gave a duplicate of the witness request form to a correctional counselor to give to the

adjustment committee. Fillmore, 2019 IL 122626, ¶ 60. Additionally, at the disciplinary

hearing, the petitioner asked (1) to see the notes described in the inmate disciplinary report and

(2) the committee to review the notes, review the inmate telephone logs in question and listen to

the telephone recordings, and call his witnesses. Fillmore, 2019 IL 122626, ¶ 60. The

-8- petitioner’s complaint alleged one of the respondents noted the prison official who wrote the

inmate disciplinary report directed the committee not to call any of the petitioner’s witnesses.

Fillmore, 2019 IL 122626, ¶ 60. The adjustment committee’s final summary report made no

reference to the petitioner’s request to review documents and stated no witness was requested.

Fillmore, 2019 IL 122626, ¶ 61. In finding the aforementioned allegations were sufficient to

state a due process claim, the supreme court noted the respondents did not give reasons for

denying the petitioner’s witnesses and evidence during the disciplinary proceeding and did not

“explain that decision ‘later.’ ” Fillmore, 2019 IL 122626, ¶ 64.

¶ 22 In this case, the grievance officer did explain why petitioner’s witnesses were

denied but did not address petitioner’s request for the adjustment committee to review the

recordings and transcripts mentioned in the disciplinary report. Since the reason for failing to

call petitioner’s witnesses was later explained, petitioner’s petition did not state a due process

claim based on the adjustment committee’s failure to call petitioner’s witnesses at the hearing.

However, as in Fillmore, the record does not contain any explanation in the final summary report

or “later” for the adjustment committee’s failure to review the evidence that petitioner requested

to be reviewed. Thus, we agree with petitioner and respondents the petition for a writ of

certiorari did set forth a due process claim based on the adjustment committee’s refusal to

review at the hearing the recordings and transcripts of the telephone calls referred to in the

disciplinary report.

¶ 23 Accordingly, we find the circuit court’s dismissal of petitioner’s petition for a writ

of certiorari was proper as to all of the due process claims except for the one based on the

adjustment committee’s refusal to review at the hearing the recordings and transcripts of the

telephone calls referred to in the disciplinary report. As such, further proceedings on that claim

-9- only are warranted.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we affirm in part and reverse in part the Livingston County

circuit court’s judgment and remand the cause for further proceedings consistent with this order.

¶ 26 Affirmed in part and reversed in part.

¶ 27 Cause remanded with directions.

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