                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Montes v. Taylor, 2013 IL App (4th) 120082




Appellate Court            ELLIOT A. MONTES, Plaintiff-Appellant, v. GLADYSE TAYLOR,
Caption                    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.


District & No.             Fourth District
                           Docket No. 4-12-0082


Filed                      March 6, 2013


Held                       The dismissal of an inmate’s petition seeking the restoration of his
(Note: This syllabus       visitation privileges with respect to one individual after he was found to
constitutes no part of     have a cellular telephone in his possession was upheld, since no violation
the opinion of the court   of his visitation privileges was established.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Livingston County, No.11-MR-39; the
Review                     Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Elliot Montes, of Pontiac, appellant pro se.
Appeal
                            Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                            Solicitor General, and Mary E. Welsh, Assistant Attorney General, of
                            counsel), for appellees.


Panel                       JUSTICE HARRIS delivered the judgment of the court, with opinion.
                            Presiding Justice Steigmann and Justice Knecht concurred in the
                            judgment and opinion.




                                              OPINION

¶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,


                                                  -2-
       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, 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, 973 N.E.2d 880. A dismissal pursuant to that section is subject to de
       novo review. Patrick Engineering, 2012 IL 113148, ¶ 31, 976 N.E.2d 318.
¶ 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


                                                 -3-
       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, 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, 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, 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, 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, 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, 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, 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, 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, 966 N.E.2d 1233 (quoting Catom Trucking, Inc. v. City of Chicago, 2011 IL App (1st)
       101146, ¶ 21, 952 N.E.2d 170, quoting Young v. Mory, 294 Ill App. 3d 839, 845, 690 N.E.2d
       1040, 1044 (1998)).
¶ 18        As stated, plaintiff argues he had a liberty interest in visitation which gave rise to due


                                                  -4-
       process protections. The Supreme Court has held that “[t]he denial of prison access to a
       particular visitor ‘is well within the terms of confinement ordinarily contemplated by a prison
       sentence,’ [citation], and therefore is not independently protected by the Due Process
       Clause.” Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 461 (1989),
       abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Although under
       certain circumstances, the state may create protected liberty interests, such interests “will be
       generally limited to freedom from restraint which *** imposes atypical and significant
       hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S.
       at 483-84.
¶ 19        Plaintiff argues Illinois created a protected liberty interest in visitation through section
       3-7-2(f) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-7-2(f) (West
       2008)). That section provides as follows:
            “All of the institutions and facilities of the Department shall permit every committed
            person to receive visitors, except in case of abuse of the visiting privilege or when the
            chief administrative officer determines that such visiting would be harmful or dangerous
            to the security, safety or morale of the institution or facility.” 730 ILCS 5/3-7-2(f) (West
            2008).
       “The plain language of section 3-7-2(f) does not grant unrestricted visitation; it merely
       allows inmates to receive visitors, and even then just to the extent it does not hinder the
       safety or security of the institution or facility.” Parker v. Snyder, 352 Ill. App. 3d 886, 889,
       817 N.E.2d 126, 128 (2004). Additionally, the Illinois Administrative Code provides that the
       chief administrative officer “may deny, suspend, or restrict visiting privileges” for a variety
       of reasons, including security and safety requirements, space availability, disruptive conduct,
       abuse of visiting privileges, and violations of state and federal laws or departmental rules.
       20 Ill. Adm. Code 525.60(e) (2013). “If contraband is discovered in the possession of an
       offender either during or after a visit, it will be assumed that the contraband was introduced
       by the offender’s visitor.” 20 Ill. Adm. Code 525.60(i) (2013). “The Chief Administrative
       Officer may restore visiting privileges at any time.” 20 Ill. Adm. Code 525.60(m) (2013).
¶ 20        We disagree with plaintiff’s position and find no state-created liberty interest in visitation
       arising from section 3-7-2(f). In Ashley v. Snyder, 316 Ill. App. 3d 1252, 1258, 739 N.E.2d
       897, 902 (2000), this court previously noted that the Unified Code was “designed to provide
       guidance to prison officials in the administration of prisons” and stated “Illinois law creates
       no more rights for inmates than those which are constitutionally required.” (Emphasis in
       original.) In that case, we emphasized the Supreme Court’s holding that “states may create
       liberty interests which are protected by the due process clause only when state law ‘imposes
       atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
       life.’ ” (Emphasis in original.) Ashley, 316 Ill. App. 3d at 1258, 739 N.E.2d at 902 (quoting
       Sandin, 515 U.S. at 484). Further, we stated as follows:
                 “The Constitution does not require that prisons be comfortable [citation], only that
            they supply basic human needs [citation]. Inmates thus have a constitutional right to
            adequate shelter, food, drinking water, clothing, sanitation, medical care, and personal
            safety. [Citations.] Prisoners also have a reasonable right of access to courts and a right


                                                  -5-
           to a reasonable opportunity to exercise religious freedom under the first amendment.
           [Citation.] Beyond these, prisoners possess no other rights, only privileges.” Ashley, 316
           Ill. App. 3d at 1258-59, 739 N.E.2d at 903.
¶ 21       Plaintiff cites various federal district court decisions to support his position that, through
       section 3-7-2(f), the State created a liberty interest in visitation. First, federal district court
       decisions may provide guidance and act as persuasive authority but this court is not bound
       to follow those decisions. Lucas, 349 Ill. App. 3d at 1002, 812 N.E.2d at 78. Second, as
       defendants point out, several of the cases plaintiff relies upon are irrelevant to, or
       distinguishable from, the issues presented in this case. Third, and most important, plaintiff
       relies on decisions that were based upon an outdated method for determining whether a state
       has created a protected liberty interest that requires due process protection.
¶ 22       In Williams v. Schomig, No. 96-C-2029, 1997 WL 280703, at *2 (N.D. Ill. May 21,
       1997), the United States District Court for the Northern District of Illinois recognized the
       change in methodology, stating as follows:
           “While a number of courts in this district have found that Illinois inmates may have a
           protected liberty interest in visitation privileges, these decisions all pre-date the Supreme
           Court holding in Sandin v. Conner, 515 U.S. 472 ***. [Citations.]
                In Sandin, the Court clarified the method for determining whether a state has created
           a protected liberty interest entitling a prisoner to the procedural due process protections
           of the Due Process Clause. No longer are courts required to examine prison regulations
           to determine whether they place substantive restrictions on an official’s discretion; rather,
           the court’s analysis must focus on the alleged deprivation and the appropriate concern
           is whether it falls ‘within the normal limits or range of custody which the conviction has
           authorized the state to impose.’ [Citation.] The Court held that convicted inmates have
           a liberty interest, and are entitled to Due Process protections *** only where their
           treatment by prison officials ‘imposes an atypical and significant hardship on the inmate
           in relation to the ordinary incidents of prison life.’ [Citation.]”
       The court went on to hold that “[w]hen compared with the ordinary incidents of prison life,
       the restriction of visitation privileges for one, non-family individual is not atypical or
       significant and does not implicate a liberty interest.” Williams, 1997 WL 280703, at *3; see
       also Murphy v. Hardy, No. 12-C-7621, 2012 WL 5520863, at *3 (N.D. Ill. Nov. 13, 2012)
       (“Restrictions on prison visitations, especially those imposed due to safety and security, do
       not constitute an atypical and significant deprivation to the normal incidents of prison life.”).
       We note this court has similarly recognized Sandin’s “abandonment of the liberty-interest
       methodology” previously established in Hewitt v. Helms, 459 U.S. 460 (1983), noting “[t]he
       Hewitt approach had led courts to inject themselves deeply in the day-to-day management
       of prisons and to second-guess essentially prison managerial decisions.” Arnett v. Snyder,
       331 Ill. App. 3d 518, 527-28, 769 N.E.2d 943, 951 (2001) (citing Ashley, 316 Ill. App. 3d
       at 1259, 739 N.E.2d at 903).
¶ 23       Here, the cases plaintiff cites are inapplicable as they rely on an outdated method for
       determining the existence of a state-created liberty interest. More recent federal district court
       decisions are based upon the appropriate standard and find no state-created liberty interest


                                                  -6-
       in inmate visitation. We agree with these more recent decisions. See Williams, 1997 WL
       280703; Murphy, 2012 WL 5520863.
¶ 24        Finally, we note plaintiff cites Jackson v. Peters, 251 Ill. App. 3d 865, 867, 623 N.E.2d
       839, 841 (1993), wherein the Third District determined section 3-7-2(f) created “a general
       due process right for inmates to receive visitors.” There, the court noted the statute also
       imposed reasonable limitations upon that right and “[o]ne of the limitations is that the right
       can be suspended if an abuse of the visitation privilege occurs.” Jackson, 251 Ill. App. 3d at
       867, 623 N.E.2d at 841. The court concluded prison officials had authority to suspend
       visitation rights in that case without violating due process because the visitor abused
       visitation privileges by bringing contraband into the prison. Jackson, 251 Ill. App. 3d at 867,
       623 N.E.2d at 841.
¶ 25        We agree with the Third District’s ultimate holding in Jackson; however, to the extent
       it stands for the proposition that the Unified Code creates a liberty interest in visitation and
       requires due process protection, we disagree. This court is “not bound to follow the decisions
       of other districts of the state appellate court.” City of Champaign v. Torres, 346 Ill. App. 3d
       214, 219, 803 N.E.2d 971, 975 (2004). In Jackson, the court provided no basis for its finding
       that the Unified Code created “a general due process right” for inmate visitation. Further, its
       decision also predated Sandin.
¶ 26        Relying on Sandin and this court’s own previous decisions, we find Illinois has not
       created a protected liberty interest in inmate visitation through section 3-7-2(f) of the Unified
       Code. In this case, plaintiff alleged only a restriction on his visitation with respect to one
       individual, Brown, and Brown’s permanent restriction occurred after she had visited plaintiff
       and plaintiff was found in possession of electronic contraband. The State has a legitimate
       interest in maintaining security and safety in a prison setting. Visitor restrictions like the one
       in this case concern only “the routine deprivations and discomforts of prison life” for the
       purpose of maintaining prison safety and security and do not amount to an “atypical and
       significant hardship.” See Ashley, 316 Ill. App. 3d at 1258, 739 N.E.2d at 903 (quoting
       Sandin, 515 U.S. at 484). Plaintiff has failed to state a claim upon which relief could be
       granted.
¶ 27        Also, not only has plaintiff failed to establish a due process violation in the restriction of
       visitation privileges, he is not entitled to mandamus relief to compel acts which involve the
       exercise of discretion. Prison officials exercise discretion regarding the inmate visitation
       process and their decisions are not subject to mandamus. The trial court committed no error
       in dismissing plaintiff’s petition.

¶ 28                                   III. CONCLUSION
¶ 29       For the reasons stated, we affirm the trial court’s judgment.

¶ 30       Affirmed.




                                                  -7-
