Hargarten v. Kochel

2020 IL App (4th) 180200-U

Opinion

NOTICE This order was filed under Supreme FILED 2020 IL App (4th) 180200-U May 13, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed NO. 4-18-0200 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

BRIAN HARGARTEN, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Livingston County GREGORY KOCHEL, IAN COX, ANDREW ) No. 17MR71 BULLFORD, CHAD BROWN, ABERARDO ) SALINAS, GUY D. PIERCE, SHARON SIMPSON, ) MICHAEL P. MELVIN, SHERRY BENTON, and ) Honorable JOHN R. BALDWIN, ) Jennifer H. Bauknecht, Defendants-Appellees. ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court reversed the trial court’s dismissal of plaintiff’s claim suggesting his due process rights were violated where he was not permitted to review certain evidence during his disciplinary proceedings and remanded for further proceedings on that claim. The appellate court otherwise affirmed the dismissal of plaintiff’s remaining claims in his complaint.

¶2 Plaintiff, Brian Hargarten, an inmate in the custody of the Illinois Department of

Corrections (DOC), appeals from the trial court’s dismissal of his complaint against various DOC

officials and employees. On appeal, plaintiff argues his complaint sufficiently alleged a violation

of his due process rights. We affirm in part, reverse in part, and remand for further proceedings.

¶3 I. BACKGROUND

¶4 According to DOC prison inmate search results, plaintiff is currently serving a 62-

year sentence for first degree murder and has a projected parole date of November 21, 2070. See

https://www2.illinois.gov/idoc/Offender/pages/inmatesearch.aspx (last visited April 13, 2020); see also People v. Hargarten, 2014 IL App (1st) 122600-U, ¶ 34 (affirming plaintiff’s conviction

and sentence on direct review).

¶5 A. Complaint

¶6 In March 2017, plaintiff filed a complaint seeking to have disciplinary proceedings

which allegedly resulted in his loss of good conduct credit reviewed under a common-law writ of

certiorari. Plaintiff named the following DOC officials and employees as defendants: Gregory

Kochel, Ian Cox, Andrew Bullford, Chad Brown, Aberardo Salinas, Guy D. Pierce, Sharon

Simpson, Michael P. Melvin, Sherry Benton, and John R. Baldwin.

¶7 Plaintiff raised multiple claims of error concerning the disciplinary proceedings.

Plaintiff alleged his due process rights were violated where he was not permitted to (1) review a

manuscript and the samples of his handwriting contained in his master file to which the manuscript

was compared or (2) introduce new samples of his handwriting for comparison.

¶8 Plaintiff attached various exhibits to his complaint, including an inmate disciplinary

report, a written statement he prepared for an adjustment committee hearing, an adjustment

committee’s final summary report, a grievance plaintiff filed following the adjustment committee

hearing, a grievance officer report denying plaintiff’s grievance, and a letter ruling on plaintiff’s

appeal from the denial of his grievance. The following is gleaned from the exhibits.

¶9 On March 2, 2016, plaintiff was served with an inmate disciplinary report authored

by Andrew Bullford. According to the report, on February 22, 2016, a correctional officer

discovered in a prison gallery an envelope containing a manuscript handwritten on toilet paper.

The manuscript detailed the cell house policies of a security threat group, or gang, called the Latin

Folk. The manuscript did not contain the name of its author. The correctional officer sent the

-2- manuscript to the prison intelligence unit, which consisted of Correctional Officer Gregory Kochel

and Correctional Officer Ian Cox. After comparing the handwriting on the manuscript to samples

of plaintiff’s handwriting contained in his master file, the intelligence unit determined it was

plaintiff’s handwriting on the manuscript. Based on that determination, the inmate disciplinary

report indicated plaintiff had violated DOC regulation 205, which prohibits security threat group

or unauthorized organizational activity. See 20 Ill. Adm. Code 504.Appendix A (No. 205),

amended at 27 Ill. Reg. 6214 (eff. May 1, 2003).

¶ 10 Prior to an adjustment committee hearing, plaintiff prepared a written statement. In

the statement, plaintiff, in part, (1) denied the allegation suggesting he authored the manuscript

and (2) requested the adjustment committee review the manuscript and the handwriting samples

contained in his master file.

¶ 11 On March 16, 2016, plaintiff was served with a final summary report from the

adjustment committee, which consisted of chairman Chad Brown and member Aberardo Salinas.

According to the report, plaintiff appeared before the adjustment committee for a hearing on March

7, 2016. The disciplinary report was read, plaintiff pleaded not guilty, plaintiff’s written statement

was submitted, and the manuscript was reviewed and verified by Brown. The adjustment

committee was satisfied the violation occurred as reported and recommended, in part, revocation

of one year of good conduct credit. Guy D. Pierce, the chief administrative officer, approved the

adjustment committee’s determinations.

¶ 12 On March 18, 2016, plaintiff filed a grievance raising multiple complaints

concerning the disciplinary proceedings. Plaintiff argued, in part, the “[adjustment] committee ***

violat[ed] offenders due process in that offender has a right to request all materials or evidence

-3- used against him be presented at the hearing so that offender can challenge and offer a viable

defense against the evidence presented.” In the factual background of his grievance, plaintiff

alleged, after receiving the inmate disciplinary report, he requested the manuscript be presented at

the adjustment committee hearing. Plaintiff also alleged he asked to see the manuscript and

samples of his handwriting contained in his master file to which the manuscript was compared

during the adjustment committee hearing.

¶ 13 In June 2016, Sharon Simpson, a grievance officer, issued a grievance officer’s

report recommending plaintiff’s grievance be denied. Michael Melvin, the chief administrative

officer who succeeded Pierce, concurred with Simpson’s recommendation. Plaintiff appealed to

the DOC’s director, and the matter was referred to its administrative review board.

¶ 14 In December 2016, Sherry Benton, a member of the administrative review board,

issued a letter to plaintiff informing him the board was reasonably satisfied he committed the

offense and his claims of due process were unsubstantiated. John R. Baldwin, the acting director

of the board, concurred with the board’s decision.

¶ 15 B. Motion to Dismiss

¶ 16 In September 2017, defendants filed a motion to dismiss plaintiff’s complaint

pursuant to section 2-615 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615 (2016)).

Defendants argued, in part, plaintiff failed to state a due process claim as they were not required

to disclose inculpatory evidence.

¶ 17 C. Response to Motion to Dismiss

¶ 18 In October 2017, plaintiff filed a response to defendants’ motion to dismiss.

Plaintiff argued, in part, he had a due process right to review the manuscript to allow him the

-4- opportunity to explain his actions or to alert officials to possible defects in the evidence.

¶ 19 D. Dismissal

¶ 20 In January 2018, the trial court entered a docket entry granting defendants’ motion

to dismiss, finding plaintiff’s complaint failed to sufficiently set forth a claim for review.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 On appeal, plaintiff argues his complaint sufficiently alleged a violation of his due

process rights based on the denial of his requests to review the manuscript and the samples of his

handwriting contained in his master file to which the manuscript was compared and to introduce

new samples of his handwriting for comparison. While defendants disagree with plaintiff’s

argument suggesting he sufficiently alleged a due process violation based on the alleged denial to

introduce new samples of his handwriting for comparison, they agree, based on the supreme

court’s recent decision in Fillmore v. Taylor, 2019 IL 122626, 137 N.E.3d 779, plaintiff

sufficiently alleged a due process violation based on the alleged denial to review the manuscript

and the samples of handwriting contained in the master file to which the manuscript was compared.

¶ 24 In his complaint, defendant sought to have the disciplinary proceedings reviewed

under a common-law writ of certiorari as he believed, in part, his due process rights were violated

during those proceedings. A common-law writ of certiorari is a method for obtaining judicial

review of administrative actions when the statute conferring power on the agency does not

expressly adopt the Administrative Review Law (ARL) (735 ILCS 5/3-101 to 3-113 (West 2016))

and provides for no other form of review. Id. ¶ 67. Because the statutes concerning prison

disciplinary proceedings neither adopt the ARL nor provide another form of review, “properly

-5- pled allegations of a denial of due process in prison disciplinary proceedings are reviewable in an

action for certiorari.” Id.

¶ 25 Defendants sought, and the trial court granted, dismissal of plaintiff’s complaint

pursuant to section 2-615 of the Civil Code (735 ILCS 5/2-615 (West 2016)). We review a trial

court’s judgment granting a section 2-615 motion to dismiss de novo. Roberts v. Board of Trustees

of Community College District No. 508, 2019 IL 123594, ¶ 21, 135 N.E.3d 891. A claim should

not be dismissed under section 2-615 of the Civil Code “unless it is clearly apparent that no set of

facts can be proved that would entitle the plaintiff to recover.” In making that determination, we

must “take all well-pleaded facts as true and construe the allegations in the complaint in the light

most favorable to the plaintiff.” Id.

¶ 26 An inmate who may lose good conduct credit as a result of a disciplinary

proceeding is entitled to certain due process guarantees. Fillmore, 2019 IL 122626, ¶ 57. 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.”

Id. (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)).

Additionally, the findings of the disciplinary board “must be supported by some evidence in the

record” to comport with due process. Id.

¶ 27 In Fillmore, the supreme court found an inmate had sufficiently pled, for purposes

-6- of surviving a section 2-615 motion to dismiss, a due process claim based on an alleged denial of

the inmate’s witness and evidence requests where there was no record of any explanation for the

denials. Id. ¶¶ 60-64. In reaching its decision, the court acknowledged the prison officials had set

forth reasons on appeal why the inmate’s requests were denied but declined to consider those

reasons as they were not presented at the inmate’s disciplinary hearing or “in the form of affidavits

or other evidence” during the inmate’s later court challenge to his disciplinary proceedings. Id.

¶ 64.

¶ 28 Consistent with Fillmore, we find plaintiff has sufficiently pled, for purposes of

surviving a section 2-615 motion to dismiss, a due process violation based on the alleged denial of

his request to review the manuscript and the samples of his handwriting contained in his master

file to which the manuscript was compared where there is no record of any explanation for the

denial. We reverse the trial court’s dismissal of plaintiff’s claim and remand for further

proceedings during which defendants will have the opportunity to provide, by affidavit or other

evidence, any explanation for denying plaintiff’s request to review the manuscript and the samples

of his handwriting contained in his master file to which the manuscript was compared.

¶ 29 In reaching this decision, we reject plaintiff’s argument suggesting his complaint

also sufficiently alleged a due process violation based on the denial of his request to introduce new

samples of his handwriting for comparison. Plaintiff’s grievance, which was incorporated into his

complaint, makes clear he did not raise such an argument before the administrative agency and,

therefore, forfeited it for review. See Demesa v. Adams, 2013 IL App (1st) 122608, ¶ 52, 994

N.E.2d 1007 (“It is well settled that on administrative review a party forfeits any issue that it failed

to raise in proceedings before the administrative agency.”). We also reject plaintiff’s request to

-7- order defendants to reimburse him for costs of this appeal.

¶ 30 III. CONCLUSION

¶ 31 We reverse the trial court’s dismissal of plaintiff’s claim suggesting his due process

rights were violated where he was not permitted to review a manuscript and the samples of his

handwriting contained in his master file to which the manuscript was compared and remand for

further proceedings on that claim. We otherwise affirm the dismissal of plaintiff’s remaining

claims in his complaint.

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

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