Gardner v. Hough

2020 IL App (4th) 190180-U

• Court: Appellate Court of Illinois
• Decided: June 4, 2020
• Docket: 4-19-0180
• Status: Unpublished

Opinion

NOTICE FILED This order was filed under Supreme Court Rule 23 and may not be cited 2020 IL App (4th) 190180-U June 4, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed NO. 4-19-0180 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DESHAWN GARDNER, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County SETH HOUGH, MAJOR SORENSEN, C. JENNING, ) No. 17MR991 SIMMS OFFICER, JANA K. CARIE, ELDON L. ) COOPER, JAMEY GARRETT, ANN LAHR, ) Honorable NICHOLAS R. LAMB, and JOHN B. BALDWIN, ) Rudolph M. Braud Jr., Defendants-Appellees. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices KNECHT and HOLDER WHITE concurred in the judgment. ORDER ¶1 Held: The appellate court affirmed in part, reversed in part, and remanded for further proceedings, finding (1) the trial court did not err in dismissing plaintiff’s claim for common-law writ of certiorari based on allegations defendants violated certain prison regulations, but (2) the court did err in dismissing plaintiff’s claim for common-law writ of certiorari based on allegations defendants violated his due process rights in revoking his good-conduct credits.

¶2 Plaintiff, DeShawn Gardner, an inmate in the custody of the Illinois Department

of Corrections (DOC), filed a complaint against defendants, officers of DOC, for a common-law

writ of certiorari. Plaintiff sought judicial review of the disciplinary proceedings that resulted in

the revocation of one year of his good-conduct credits. He alleged defendants violated DOC

regulations and deprived him of his due process rights when it revoked his good-conduct credits.

Defendants filed a motion to dismiss plaintiff’s complaint pursuant to section 2-619 of the Code

of Civil Procedure (Civil Code) (735 ILCS 5/2-619 (West 2016)), which the trial court granted. ¶3 This court allowed plaintiff’s late notice of appeal. On appeal, plaintiff argues the

trial court erred in dismissing his complaint because he properly alleged a due process violation

sufficient to state a cause of action for a common-law writ of certiorari. For the following

reasons, we affirm in part, reverse in part, and remand for further proceedings.

¶4 I. BACKGROUND

¶5 In July 2017, plaintiff filed a complaint for a common-law writ of certiorari, in

which he sought judicial review of the DOC disciplinary proceedings that resulted in the

revocation of one year of good-conduct credits. The following relevant facts are derived from the

allegations in plaintiff’s complaint and the exhibits attached thereto.

¶6 On November 13, 2016, plaintiff was served with an “Offender Disciplinary

Report” charging him with violating two DOC regulations “due to his continued involvement

within Security Threat Group Activity and communications with identified Black Disciple

Security Threat Group leadership.” The disciplinary report alleged that plaintiff was observed

“utilizing Black Disciple Security Threat Group verbiage” in his monitored phone calls and that

he “merged calls” between two members of the “Black Disciple Security Threat Group.”

¶7 Upon being served with the disciplinary report, plaintiff made a handwritten

request for transcripts of the phone calls in which he allegedly used security threat group

“verbiage” and “merged calls” between members of the group. Plaintiff alleged these transcripts

would prove he did not violate any DOC regulations during the phone calls.

¶8 On November 14, 2016, plaintiff appeared before the disciplinary committee. He

stated to the committee that he “wanted a copy of the recorded phone call in order to use as

evidence at the hearing.” Plaintiff pleaded not guilty to the allegations in the report “and ask[ed]

the [disciplinary] committee for a continuance until [he receives] this evidence.” The committee

-2- denied his request for a continuance and found him guilty the same day. Plaintiff alleged the

committee “never listen[ed] to the phone recording to even see if [he] committed the

infraction[s] ***.”

¶9 On November 29, 2016, DOC served plaintiff with the disciplinary committee’s

“Final Summary Report,” in which the committee recommended, in relevant part, the revocation

of one year of plaintiff’s good-conduct credits. The recommendation was approved by the chief

administrative officer. Plaintiff administratively appealed his discipline by filing a grievance,

which was denied.

¶ 10 As a result of this denial, plaintiff brought the instant action for a common-law

writ of certiorari. He alleged that defendants violated DOC regulations and deprived him of due

process in revoking his credits without giving him the opportunity to present evidence in his

defense. Defendants filed a motion to dismiss plaintiff’s complaint pursuant to section 2-619 of

the Civil Code (id. § 2-619), arguing (1) plaintiff received the process that he was due and (2) the

alleged violation of DOC regulations by defendants did not create in plaintiff an enforceable

cause of action. The trial court granted defendants’ motion.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, plaintiff argues the trial court erred in dismissing his complaint for a

common-law writ of certiorari. Specifically, plaintiff contends he stated a cause of action

because he “sufficiently pled that defendant’s [sic] denial of [his] recorded phone call evidence

without an explanation violated [his] due process rights[.]” In response, defendants argue

plaintiff has forfeited any argument he stated a claim for a common-law writ of certiorari based

on violations of DOC regulations, but defendants concede we “should remand the matter to the

-3- [trial] court for further proceedings on [plaintiff’s] claim that defendants violated his due process

rights by denying his requ[est] [f]or evidence ***.” Plaintiff did not file a reply brief.

¶ 14 A. Standard of Review

¶ 15 Initially, we note defendants acknowledge that their motion to dismiss should

have been filed under section 2-615, as opposed to section 2-619, because it “attacked the

sufficiency of [plaintiff’s] complaint ***.” Id. §§ 2-615, 2-619. Nonetheless, defendants

maintain this improper labeling does not require reversal, as plaintiff ultimately responded to the

motion and treated it as a section 2-615 motion. Plaintiff makes no attempt on appeal to

challenge the trial court’s dismissal order on the ground that defendants filed an improperly-

labeled motion to dismiss, and the record shows that he has consistently treated the motion as a

section 2-615 motion. Under these circumstances, we decline to find that the trial court’s

judgment must be reversed solely due to defendants’ improper labeling of their motion to

dismiss. See, e.g., O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 21, 36 N.E.3d 999 (“A

defendant’s motion to dismiss is not defeated merely by choosing the wrong statutory

mechanism where the plaintiff suffered no prejudice from the improper label.”). Therefore, we

will review de novo the question of “whether the allegations of the complaint, taken as true and

viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon

which relief can be granted.” Fillmore v. Taylor, 2019 IL 122626, ¶ 35, 137 N.E.3d 779.

¶ 16 B. Plaintiff Stated a Cause of Action for a Common-Law Writ of Certiorari

¶ 17 As noted above, plaintiff argues he stated a claim for a common-law writ of

certiorari based on his allegation that defendants denied, without explanation, his request to

present evidence at the disciplinary hearing, in violation of his due process rights.

-4- ¶ 18 Prisoners have a liberty interest—created by state statute and protected by the due

process clause—in a shortened sentence that results from application of good-conduct credits.

Wolff v. McDonnell, 418 U.S. 539, 557 (1974). As such, in the context of prison disciplinary

proceedings, a prisoner is entitled to due process protections when the penalty faced by the

prisoner includes revocation of good-conduct credits. Fillmore, 2019 IL 122626, ¶ 48 (citing

Sandin v. Conner, 515 U.S. 472, 486-87 (1995)). The prisoner who faces possible revocation of

good-conduct credits “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.” Id. ¶ 57 (citing Wolff, 418

U.S. at 563-67). Well-pleaded allegations of a denial, without explanation, of witness and

evidence requests are sufficient to state a claim for violation of the right to due process in the

revocation of good-conduct credits. Id. ¶ 64. Moreover, “properly pled allegations of a denial of

due process in prison disciplinary proceedings are reviewable in an action for certiorari.” Id.

¶ 67.

¶ 19 Here, plaintiff alleged defendants violated his due process rights by denying him

the opportunity to present evidence—specifically, “a copy of the recorded phone calls” that

served as the basis for the disciplinary proceeding—without offering him an explanation for the

denial. Defendants concede, and we agree, that by raising this allegation, plaintiff properly stated

a claim for a violation of his due process rights, as articulated in Wolff, in the revocation of his

good-conduct credits and, as a result, he has also stated a claim for a common-law writ of

certiorari. Id. (“Because plaintiff’s complaint has stated a claim for violation of his right to due

process in the revocation of his good conduct credits, we find that plaintiff’s complaint stated a

-5- claim for common-law writ of certiorari with regard to his due process claims.”). Accordingly,

we accept defendants’ concession and reverse that portion of the trial court’s order dismissing

plaintiff’s complaint with respect to his due process claim pertaining to the phone evidence, and

we remand for further proceedings on that claim. With respect to the trial court’s dismissal of

plaintiff’s claims based on defendants’ alleged violations of DOC regulations, we affirm the trial

court’s judgment, because plaintiff has forfeited any argument the court erred in dismissing those

claims by failing to raise it on appeal. Moreover, any such argument would be meritless, as DOC

regulations do not create judicially enforceable rights for prisoners that may serve as the basis for

an action seeking a common-law writ of certiorari. Id. ¶ 55 (“[T]o the extent that plaintiff bases

his claims [for a common-law writ of certiorari] on violations of [DOC] regulations governing

his disciplinary proceedings, we find that plaintiff’s complaint fails to state a cause of action.”).

¶ 20 III. CONCLUSION

¶ 21 For the reasons stated, we affirm the trial court’s judgment in part and reverse it in

part, and we remand for further proceedings on defendant’s due process claim based on the

denial of his request to present evidence.

¶ 22 Affirmed in part and reversed in part; cause remanded.

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