                                                    NO. 5-08-0210
                   NOTICE

 Decision filed 01/24/11. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

COREY A. TAYLOR,                       )    Appeal from the
                                       )    Circuit Court of
      Plaintiff-Appellant,             )    Alexander County.
                                       )
v.                                     )    No. 07-MR-24
                                       )
R. SHELTON FREY, KEN                   )
BARTLEY, and DAVID M ITCHELL,          )    Honorable
                                       )    Charles C. Cavaness,
      Defendants-Appellees.            )    Judge, presiding.
________________________________________________________________________

             PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
             Justices Goldenhersh and W elch concurred in the judgment and opinion.

                                                    OPINION

             Corey A. Taylor, inmate No. B17010 in the Department of Corrections (Department),

appeals pro se from the dismissal of his amended complaint for mandamus relief, a

declaratory judgment, and a permanent injunction. The complaint was dismissed on the

motion of the defendants, R. Shelton Frey, a former warden of Tamms Correctional Center

(Tamms), Ken Bartley, the then-current warden of Tamms, and David Mitchell, an employee

of the Department. Taylor seeks the reversal of the trial court's order and the remand of the

cause to the circuit court. We affirm.

                                                   BACKGROUND

             Taylor is an inmate in the Department who is serving a 75-year sentence for first-

degree murder and concurrent 75-year sentences for robbery and burglary. People v. Taylor,

235 Ill. App. 3d 763 (1992). His projected release date is February 19, 2039. Taylor has

been housed at Tamms since September 2, 1998. Between that date and May 22, 2007, he


                                                         1
received 132 disciplinary tickets for violating various institutional rules.

        On April 20, 2007, Taylor filed pro se a complaint seeking mandamus relief, a

declaratory judgment, and a perm anent injunction. On October 22, 2007, he filed an

amended complaint, in which he again sought mandamus, declaratory, and injunctive relief.

Taylor asserted that his right to due process had been violated in various ways in disciplinary

proceedings that had been conducted at Tamms between April 29, 2005, and March 20,

2006. He alleged that as a result of the allegedly improper disciplinary proceedings, he had

been assigned to disciplinary segregation status for a total of 22 months, he had been reduced

to C-grade for 25 months, and his commissary privileges had been restricted for 25 months.

Taylor also lost one month of good-conduct credit when he was found guilty of unauthorized

solicitation of personal information. He claimed that his delay in filing his complaint was

excusable because of a high turnover rate of chief administrative officers at Tamms, his

efforts to resolve his grievances with successive chief administrative officers, and his

attempts to solicit legal help from entities outside of the penitentiary prior to seeking redress

in the circuit court.

       Taylor sought an order of mandamus to compel the defendants to hold new hearings

on the disciplinary tickets that complied with state and federal due process requirements, a

declaration that the disciplinary proceedings had violated his right to due process under state

and federal law, and an injunction prohibiting the defendants from abrogating his due process

rights in future disciplinary proceedings.      Appended to the complaint were copies of

adjustment committee summaries, administrative review board decisions, and four letters that

had been directed to the plaintiff from Department officials, the Office of the Illinois

Attorney General, and a prisoners' rights organization. Three of these letters postdated the

original complaint.

       On November 27, 2007, the defendants filed a combined motion pursuant to section


                                               2
2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2006)) to dismiss

the amended complaint. They asserted that the complaint was subject to a dismissal under

section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)) because it failed to state a cause

of action. They argued that the complaint and its attachments established that in the only

disciplinary proceeding that had resulted in the loss of good-conduct credit, Taylor had been

afforded all the due process to which he was entitled. They also argued that the other

disciplinary actions did not implicate his due process rights because they had not resulted in

any loss of good-conduct credit. They argued further that his complaint was barred by

laches because it was untimely filed.

       The defendants asserted that the mandamus count of the complaint was subject to a

dismissal under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (W est 2006)).

They contended that the exhibits to the complaint and a document in Taylor's master file

related to the only disciplinary action for which he had lost good-conduct credit established

that he had failed to request any witnesses and that he had been afforded adequate due

process in the proceedings. A copy of Taylor's May 10, 2005, disciplinary report for

solicitation of unauthorized personal information was appended to the defendants' motion.

The witness-request form was still attached to the form. An affidavit of the Tamms records

keeper attested that the copy of the disciplinary report was true and correct.

       On February 7, 2008, Taylor filed a motion in opposition to the defendants' motion

to dismiss his complaint. He reiterated the allegations of his complaint, asserted that he had

provided a reasonable explanation for his failure to file the complaint within six months of

the events that formed the basis of his complaint, and contended that laches was inapplicable

because the defendants had failed to assert that they had been prejudiced by his delay in

filing the complaint. On April 2, 2008, the judge dismissed the complaint in a docket sheet

entry. He found that mandamus relief was barred by the doctrine of laches because the


                                              3
complaint had not been filed in a timely manner and that Taylor had failed to provide a

reasonable excuse for his dilatory filing. He also ruled that the attachments to the complaint

substantiated that the defendants had conducted Taylor's disciplinary proceedings in a

manner that provided him with the quantum of due process to which he had been entitled.

                                 STANDARD OF REVIEW

       The grant of a motion to dismiss for a failure to state a cause of action or on the basis

of defects or defenses in the pleadings is subject to de novo review. Rodriguez v. Illinois

Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007). As a consequence, the grant of

a hybrid motion to dismiss filed pursuant to section 2-619.1 of the Code is also subject to de

novo review. McGee v. Snyder, 326 Ill. App. 3d 343, 347 (2001). This section allows a

litigant to file as a single motion in any combination a section 2-615 motion for an

involuntary dismissal for a failure to state a cause of action, a section 2-619 motion for an

involuntary dismissal based on certain defects or defenses, such as laches, or a section 2-

1005 (735 ILCS 5/2-1005 (West 2006)) motion for a summary judgment. 735 ILCS 5/2-

619.1 (W est 2006). The defendants in the case at bar sought the dismissal of Taylor's

complaint under sections 2-615 and 2-619. Where a dismissal is proper as a matter of law,

the circuit court may be affirmed on any basis supported by the record. Rodriguez, 376 Ill.

App. 3d at 433.

       A section 2-615 motion to dismiss admits all the well-pleaded facts and attacks the

legal sufficiency of the complaint. Ford v. Walker, 377 Ill. App. 3d 1120, 1124 (2007).

Under that section, "[d]ismissal is appropriate only where, viewing the allegations in the light

most favorable to the plaintiff, it is clear that no set of facts can be proved under the

pleadings that will entitle the plaintiff to relief." Gilchrist v. Synder, 351 Ill. App. 3d 639,

642 (2004). In ruling on a section 2-615 motion, the court may take into consideration

documents and exhibits that have been incorporated into the pleadings.


                                               4
       A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and

raises defects, defenses, or other affirmative matters that appear on the face of the complaint

or are established by external submissions and that act to defeat the plaintiff's claim. Neppl

v. Murphy, 316 Ill. App. 3d 581, 584 (2000). "[A] section 2-619 proceeding enables the

court to dismiss the complaint after considering issues of law or easily proved issues of fact."

Id. at 585.

                                         ANALYSIS

       Initially, we observe that Taylor has appended documents to his brief that were not

made a part of the record on appeal. Generally, attachments to appellate briefs that are not

otherwise of record are not properly before a reviewing court and cannot be used to

supplement the record. Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine

Wine, Ltd., 392 Ill. App. 3d 1, 14 (2009). In resolving this appeal, we will not consider these

documents or any argument that is based on them.

       On appeal, Taylor argues that the court improperly granted the motion to dismiss

because he asserted reasons for his delay in filing and the defendants did not allege any

prejudice on their part. He also contends that his complaint clearly states a cause of action.

Taylor argues that he was denied procedural due process in his disciplinary hearings when

he was not allowed to request witnesses, was not provided a written statement of the

witnesses' testimony, was not allowed live witness testimony, was subject to a partial fact

finder, and exculpatory evidence was not considered on his behalf. He asserts that he has

a protectable liberty interest in avoiding disciplinary segregation.

       In response, the defendants argue that Taylor was not entitled to due process in any

of the hearings, except for the May 10, 2005, hearing, because he was not deprived of any

liberty interest. They do acknowledge that on May 10, 2005, Taylor was demerited of one

month of good-time credit, which has been established to be a protected liberty interest.


                                               5
However, they argue that he was afforded the proper due process for that hearing. They also

contend that the circuit court was correct in granting the motion to dismiss on laches grounds

because the action was not brought within six months and no reasonable explanation was

provided for the delay.

                                        I. Liberty Interests

          We first address the issue of liberty interests to determine if the prisoner was entitled

to due process during his disciplinary hearings. In certain instances, a state may create a

protected liberty interest. Sandin v. Conner, 515 U.S. 472, 483 (1995). However, in the case

of prisoners, "these interests will be generally limited to freedom from restraint *** [that]

imposes atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life." Id. at 484. It has been held that a loss of good-time credit will implicate a

protected liberty interest. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). However, the

United States Supreme Court held in Sandin that a prisoner's transfer to disciplinary

segregation was not considered to be an "atypical, significant deprivation." Sandin, 515 U.S.

at 486.

          In Sandin, the prisoner was housed in a Hawaii prison where, he claimed, he was

denied due process when he was denied witnesses at a disciplinary hearing as a result of

which he received a punishment of 30 days of disciplinary segregation. Id. at 475. The

Court concluded that the prisoner being placed in disciplinary segregation did not impose an

"atypical, significant deprivation." Id. at 486. The Court reasoned that (1) the conditions

of disciplinary segregation and administrative segregation were equally as harsh with only

a few exceptions, (2) the placement did not cause a major departure from the prisoner's basic

conditions, and (3) the situation did not affect the duration of the prisoner's sentence. Id.

It concluded, "The regime to which he was subjected as a result of the misconduct hearing

was within the range of confinement to be normally expected for one serving an


                                                  6
indeterminate term of 30 years to life." Id. at 487.

       The facts in the instant case are similar to the facts in Sandin. Here, Taylor argues

that being placed in disciplinary segregation at Tamms is an "atypical and significant

hardship." He argues that at Tamms there is a significant difference between the conditions

of disciplinary segregation and the conditions of administrative segregation. We disagree.

Based on the conditions alleged in Taylor's complaint, we conclude that Taylor's

confinement to disciplinary segregation for a limited amount of time when he is already

housed at a supermaximum security prison does not constitute the deprivation required to

trigger the standard for a cognizable liberty interest. It has been held that the transfer into

Tamms should be afforded due process (Westefer v. Snyder, 725 F. Supp. 2d 735 (S.D. Ill.

2010)), but in the situation when a prisoner is already confined there, we do not agree that

a transfer to disciplinary segregation within the prison should be afforded due process where

there is no loss of some other cognizable liberty interest. The conditions Taylor complains

of are not a dramatic departure from his prison environment, and they are within the range

to be expected by someone serving two concurrent 75-year sentences.

       Therefore, we conclude that Taylor was only entitled to due process for the May 10,

2005, hearing, in which he lost good-time credit. Accordingly, we will only address the due

process issues in regards to the May 10, 2005, hearing.

       For that hearing, Taylor asserts that his due process was violated when he was not

allowed to call witnesses and was denied the live testimony of those witnesses. He seeks

the remedies of mandamus and declaratory and injunctive relief.

                                    II. Witness Requests

       Taylor argues that the defendants intentionally denied his request for witnesses and

thus violated his right to due process. He attached an affidavit to his amended complaint,

which asserts that he did request witnesses, and a copy of the final summary disciplinary


                                              7
report, which states, "[D]efendant refused to participate in the proceedings." The defendants

argue that he was required to request witnesses using the slip at the bottom of the

disciplinary ticket and that the witnesses that he claimed to have requested w ould have

provided irrelevant testimony.      The defendants also attached a copy of the original

disciplinary ticket to their motion to dismiss, which has the witness-request form at the

bottom still attached.

       Inmates subject to disciplinary action that could result in the loss of good-time credit

are entitled to (1) notice of the disciplinary charges at least 24 hours prior to the hearing, (2)

when consistent with institutional safety and correctional goals, an opportunity to call

witnesses and present documentary evidence in defense, and (3) a written statement by the

fact finder of the evidence relied on and the reasons for the disciplinary actions. Wolff, 418

U.S. at 563-66. We note that in regard to the specific hearing of May 10, 2005, Taylor only

asserts a denial of his request for witnesses and their live testimony.

       Department rules specify that inmates may request that a witness be interviewed, by

making a request in writing on the space at the bottom of the disciplinary report before the

disciplinary hearing. 20 Ill. Adm. Code §504.80(f)(2), amended at 27 Ill. Reg. 6229, 6230,

eff. May 1, 2003. In general, "[p]rison officials must have the necessary discretion to keep

the hearing within reasonable limits and to refuse to call witnesses that may create a risk of

reprisal or undermine authority" or where their testimony would be irrelevant or unnecessary.

Wolff, 418 U.S. at 566. "Since it is within the committee's discretion to deny an inmate's

witness request, such a decision may not be challenged in a mandamus petition." Ford, 377

Ill. App. 3d at 1125.

       In the instant case, Taylor did not request witnesses in a correct manner provided for

by Department rules.      The witness-request slip is still attached at the bottom of the

disciplinary ticket, and Taylor acknowledges that he did not use the slip. He asserts that he


                                                8
sent a written witness request through institutional mail. Any deviation from Department

rules, such as a request for witnesses at the disciplinary hearing, would have been completely

subject to the committee's discretion to accept. Even construing the facts to be most

favorable to Taylor, we conclude that this was not an acceptable manner for requesting a

witness by Department rules. Nor does he assert that he requested the witnesses at the

hearing. Furthermore, the summary report for the hearing states that he refused to participate

in the disciplinary hearing.

       Moreover, regarding Taylor's request for a witness, he asserts that the prison official

whom he requested as a witness would have testified to the homosexual orientation of the

prison guard at issue in the May 10, 2005, hearing in which Taylor had been charged with

soliciting unauthorized personal information. Taylor's asserted reason for calling the witness

is to verify the sexuality of the guard whom he was trying to obtain information about and

not to establish Taylor's innocence. Thus, this witness testimony would have been irrelevant

and would have been in the discretion of the committee to deny.

       We conclude that Taylor was not denied due process in regard to his witness request

for the hearing of May 10, 2005, because he failed to follow Department rules for requesting

witnesses and the testimony that he wanted to elicit would not have been relevant. In light

of our finding that no witnesses were requested in the correct manner, we do not address the

claim of a violation of due process by not allowing the live testimony of witnesses.

                                       CONCLUSION

       For the foregoing reasons, we conclude that Taylor's transfer into disciplinary

segregation was not an "atypical, significant deprivation" implicating a liberty interest. We

further conclude that he was allowed the appropriate due process for the hearing in which

he lost his good-time credit. Due to our holding in this case, it is unnecessary to discuss the

issue of laches. The circuit court's dismissal of Taylor's complaint is affirmed.


                                              9
Affirmed.




            10
                                         NO. 5-08-0210

                                            IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      COREY A. TAYLOR,                      )     Appeal from the
                                            )     Circuit Court of
            Plaintiff-Appellant,            )     Alexander County.
                                            )
      v.                                    )     No. 07-MR-24
                                            )
      R. SHELTON FREY, KEN                  )
      BARTLEY, and DAVID M ITCHELL,         )     Honorable
                                            )     Charles C. Cavaness,
            Defendants-Appellees.           )     Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        January 24, 2011
___________________________________________________________________________________

Justices:          Honorable Melissa A. Chapman, P.J.

                 Honorable Richard P. Goldenhersh, J., and
                 Honorable Thomas M . Welch, J.,
                 Concur
___________________________________________________________________________________

Pro se           Corey A. Taylor, Reg. No.: B-17010, Tamms Correctional Center, P.O. Box 2000,
Appellant        Tamms, IL 62988
___________________________________________________________________________________

Attorneys        Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor
for              General, M ary C. LaBrec, Assistant Attorney General, 100 W est Randolph Street,
Appellees        12th Floor, Chicago, IL 60601
___________________________________________________________________________________
