                 NOS. 4-08-0126, 4-08-0127 cons.     F: 12/19/08

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

 MICHAEL RUIZ,                             )   Appeal from
           Plaintiff-Appellee,             )   Circuit Court of
           v. (No. 4-08-0126)              )   Sangamon County
 ROGER E. WALKER, JR., Director of the     )   No. 06MR75
 Illinois Department of Corrections;       )
 RANDALL TAYLOR, Superintendent of School )
 District No. 428; and GUY PIERCE, Warden )
 of the Pontiac Correctional Center,       )
           Defendants-Appellants.          )
 ---------------------------------------- )
 EUGENE ROBERT BILSKI,                     )   No. 05MR495
           Plaintiff-Appellee,             )
           v. (No. 4-08-0127)              )
 ROGER E. WALKER, JR., Director of the     )
 Illinois Department of Corrections; GUY   )
 PIERCE, Warden of the Pontiac             )
 Correctional Center; RANDALL TAYLOR,      )
 Superintendent of School District No.     )
 428, BLAIR LEIBACH, Assistant Warden of   )
 Operations for the Pontiac Correctional   )
 Center; and ROBERT GRIFFIN, Assistant     )
 Warden of Programs for the Pontiac        )   Honorable
 Correctional Center,                      )   Leslie J. Graves,
           Defendants-Appellants.          )   Judge Presiding.
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          On February 10, 2006, plaintiff, Eugene Robert Bilski,

an inmate at Pontiac Correctional Center (PCC), pro se filed an

amended complaint for declaratory judgment and injunctive relief

against defendants, Roger Walker, Jr., Director of the Illinois

Department of Corrections (DOC); Guy Pierce, warden of PCC;

Randall Taylor, superintendent of School District No. 428; Blair

Leibach, assistant warden of operations for PCC; and Robert
Griffin, assistant warden of programs for PCC.     On February 15,

2006, plaintiff Michael Ruiz, an inmate at PCC, pro se filed a

complaint for declaratory judgment and injunctive relief against

defendants Walker, Pierce, and Taylor.

          After a combined evidentiary hearing, the trial court

entered orders in each case requiring defendants to "allow a

willing staff member of DOC to proctor examinations to the

plaintiff in his pursuit of approved correspondence courses for

college credit, upon the plaintiff satisfying his burden of

securing a willing proctor and an available time, date, and

location for such examinations."   Defendants filed notices of

appeal, docketed as No. 4-08-0126 and No. 4-08-0127.     At defen-

dants' request, we have consolidated these appeals.

          Plaintiffs here are inmates of PCC.     Plaintiffs re-

quested a staff member be allowed to proctor correspondence-

course exams.   Plaintiffs' request was denied.    Plaintiffs filed

a four-count complaint for declaratory judgement and injunctive

relief against defendants requesting the trial court compel

defendants to allow a staff member to proctor correspondence-

course exams.   The court filed as stated.   This appeal followed.

          Before addressing the merits of the appeal, we consider

defendants' motion to strike portions of plaintiffs' brief.

Defendants have moved to strike those portions of plaintiffs'

brief that refer to facts not in evidence.   Plaintiffs filed an


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objection and a response thereto, and this court ordered defen-

dants' motion be taken with the case.    "The general rule is that

'material which was not part of the court record or considered by

the trial court is not part of the record on appeal and should

not be considered by the appellate court.'"    Doyle Plumbing &

Heating Co. v. Board of Education, Quincy Public District No.

172, 291 Ill. App. 3d 221, 229-30, 683 N.E.2d 530, 536 (1997),

quoting Smith v. First National Bank of Danville, 254 Ill. App.

3d 251, 258, 624 N.E.2d 899, 905 (1993).    We find no reason to

deviate from that rule in this case.    We will not consider the

portions of plaintiffs' brief that refer to facts not in evi-

dence.

          A prisoner has no liberty or property interest in

attending an educational program.   See Murdock v. Washington, 193

F.3d 510, 513 (7th Cir. 1999); 20 Ill. Adm. Code §405.20(a), as

amended by 18 Ill. Reg. 2970, 2974 (eff. February 14, 1994)

("[n]othing in this [p]art shall be construed to require educa-

tional opportunities for all committed persons"); see also Hadley

v. Snyder, 335 Ill. App. 3d 347, 354, 780 N.E.2d 316, 323 (2002)

(a prisoner does not have a liberty interest in attending educa-

tional or recreational programs); Williams v. Thompson, 111 Ill.

App. 3d 145, 148-51, 443 N.E.2d 809, 810-12 (1982) (reversing a

preliminary injunction requiring prison officials to allow

inmates to complete vocational training programs for lack of


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right to participate in said programs).    In the instant case,

plaintiffs have not shown that limitations on access to a staff

member to proctor correspondence-course exams affected plain-

tiffs' liberty or property interests.    Consequently, these

limitations did not violate plaintiffs' right to due process.

          Plaintiffs contended that limitations on their access

to postsecondary programs as prisoners confined in protective

custody, as compared to the general prison population, violated

their equal-protection rights.    DOC operates its protective

custody units under a consent decree, Meeks v. Lane, No. 75-C-96

(N.D. Ill. 1981), issued by a three-judge panel of the United

States District Court for the Northern District of Illinois.      The

decree requires defendants to provide inmates in protective

custody "educational opportunities commensurate with those

available to inmates in the general population."    In this case,

PCC does not house a general population.

          Moreover, prison officials do not violate the equal-

protection clause when they treat protective-custody inmates

differently from general-population inmates based on legitimate

penological concerns.   French v. Owens, 777 F.2d 1250, 1256 (7th

Cir. 1985).   Restrictions on plaintiffs' access to a staff member

to proctor correspondence-course exams were based on "limited

resources and budgetary constraints."    Because these limitations

were based on legitimate penological concerns, plaintiffs failed


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to show that restricted access to postsecondary educational

programs violated plaintiffs' equal-protection rights.

          Similarly, plaintiffs contended that limitations on

their access to postsecondary programs as male inmates at PCC, as

compared to female inmates at Dwight Correctional Center (DCC),

violated their equal-protection rights.   Male and female prison-

ers are often not similarly situated in relevant respects for

purposes of asserting equal-protection claims.   See Klinger v.

Department of Corrections, 107 F.3d 609, 612 (8th Cir. 1997)

(male prisoners housed in multiple institutions and female

prisoners housed in one not similarly situated for purposes of

access to programs and services based on differences in prison

demographics); Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996)

(male and female inmates not similarly situated for purposes of

prison programming based on different number of male and female

inmates, differences in sentences served, and classification

levels of male and female inmates); Women Prisoners of the

District of Columbia Department of Corrections v. District of

Columbia, 93 F.3d 910, 924-27 (D.C. Cir. 1996) (male and female

inmates housed in separate prisons not similarly situated for

purposes of access to programs and services); Timm v. Gunter, 917

F.2d 1093, 1102 (8th Cir.1990) (male and female inmates not

similarly situated for purposes of pat-down searches by opposite-

sex guards); Pargo v. Elliott, 894 F. Supp. 1243, 1261 (S.D. Iowa


                              - 5 -
1995) (male and female inmates not similarly situated for pur-

poses of inmate security and programming where male inmates

housed in different facilities by security classifications and

female inmates housed together, served shorter sentences, and had

special characteristics).

           Defendants' affidavits in support of their response to

a motion for summary judgment by plaintiffs stated that DCC

houses a total of 977 female inmates.    Thirty-four inmates are

held in segregation status and nine are in protective custody.

The remaining 934 inmates are made up of multilevel classifica-

tions.   In comparison, PCC houses 1,619 inmates.   Three hundred

ninety-eight are held in a medium-security unit, six hundred

ninety-eight are in segregation, and five hundred are in protec-

tive custody.    DCC is classified as maximum security because it

is the only DOC facility to house maximum-security female inmates

in Illinois.    However, the maximum-security inmates make up a

small percentage of the overall population.    In comparison, PCC's

primary purpose is to house long-term disciplinary-segregation

and protective-custody inmates.    Female inmates housed in DCC's

segregation- and protective-custody units do not participate in

educational programing that is also not available to those

inmates at PCC.

           Thus, the programs at PCC and DCC reflect separate sets

of decisions based on entirely different circumstances.    Program


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priorities differ from prison to prison depending on innumerable

variables that officials must take into account.    PCC and DCC are

different institutions with different inmates, each operating

with limited resources to fulfill different specific needs.

Thus, plaintiffs and DCC inmates are not similarly situated for

purposes of prison programs and services and plaintiffs have

failed to make the requisite threshold showing that they are

similarly situated to the group that they claim receives favor-

able treatment.   For this reason, plaintiffs have not suffered an

equal-protection violation.

          Likewise, neither the provisions in the Unified Code of

Corrections (Unified Code) nor the Illinois Constitution, each of

which propounds general policies of rehabilitation and restora-

tion to useful citizenship, creates an entitlement to participate

in postsecondary education.   See 730 ILCS 5/1-1-2 (West 2004)

(concerning restoration to useful citizenship); 730 ILCS 5/3-7-1

(West 2004) (requiring DOC to promulgate rules in compliance with

the Unified Code); Ill. Const. 1970, art. I, §11.   Instead,

whether a prisoner may "secur[e] a willing proctor and an avail-

able time, date, and location for *** examinations" is a matter

of discretion solely for DOC.   See 730 ILCS 5/3-6-2(d) (West

2004) (postsecondary opportunities encouraged "wherever possi-

ble"); 20 Ill. Adm. Code §405.20(a)(1)(D), as amended by 18 Ill.

Reg. 2970, 2974 (eff. February 14, 1994) (adult-division educa-


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tional provisions shall include postsecondary education "where

possible").

          Courts are not to intervene in matters within the

discretion of DOC, including whether a staff member may proctor

correspondence-course exams.   As such, ruling on plaintiffs'

request to allow a staff member to proctor correspondence-course

exams exceeds the scope of the trial court’s authority.

          Because plaintiffs had no right to proctored

correspondence-course exams, the trial court abused its discre-

tion by entering the injunction below, and we reverse.

          Reversed.

          TURNER and STEIGMANN, JJ., concur.




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