--Rule 23 Order filed December 31, 1997; Motion to publish granted
Appeal from the Circuit Court of Randolph County. No. 97-MR-5
Honorable William A. Schuwerk, Jr., Judge, presiding.
Welch, P.j., and Chapman, J., concur.
The opinion of the court was delivered by: Justice Hopkins delivered the opinion of the court:
Plaintiff, Craig Murillo, appeals the trial court's order dismissing his pro se civil rights complaint under section 1983 of the Civil Rights Act (42 U.S.C.A. §1983 (West 1994 & Supp. 1997)) against defendant, Thomas F. Page, the chief administrative officer of Menard Correctional Center (Menard), for its failure to state a cause of action. We affirm for the reasons set forth below.
Plaintiff filed his pro se complaint pursuant to section 1983, and in the complaint he alleged that defendant, both individually and in his official capacity, violated plaintiff's constitutional rights of freedom of speech, of access to the courts, of the assistance of counsel, and of equal protection, by denying him telephone access. In support of his complaint, plaintiff attached three grievance reports he filed at Menard, a copy of the circuit court's order from Brown County case number 96-CF-8, a memorandum from the assistant warden of Menard, a telephone procedure policy authorized by defendant, and a copy of a portion of the Illinois Administrative Code concerning telephone privileges for prison inmates. From these documents, the following facts are adduced: Plaintiff was transferred to Menard on December 27, 1995, where he was placed in segregation due to "various rule violations." Plaintiff was released from segregation and placed in C grade protective custody on November 14, 1996.
On February 27, 1996, plaintiff was charged with a criminal offense in Brown County (case number 96-CF-8) and had his first appearance in that case on March 4, 1996. At plaintiff's first appearance, the court entered an order that plaintiff be allowed one phone call a week to confer with his attorney.
Plaintiff's grievance report of April 20, 1996, alleged that he was denied telephone access to his attorney and to his family and friends in violation of the court order. Plaintiff stated that he showed the court order to Superintendent Pierson and that Pierson approved plaintiff's calls and that he received those calls until two weeks prior thereto. However, plaintiff stated, "[Now the] gallery officers *** don't care." Plaintiff asked to be given his "legal phone calls."
A counselor's response to plaintiff's April 1996 grievance indicated that he contacted Captain Maui, "who stated he would insure that inmate Murillo received his court[-]ordered calls on Wednesdays." A report submitted by a grievance officer on May 28, 1996, advised defendant that Captain Maui had "insured" that plaintiff would receive his legal calls and that the issue was resolved. Defendant signed this document on June 17, 1996. In addition, a May 20, 1996, memorandum from Assistant Warden Charles Hinsley advised Mark Pierson, the unit superintendent for the North One Segregation Unit, to inform his staff that plaintiff was to be allowed to contact his attorney weekly until a decision was rendered in plaintiff's pending case.
Plaintiff's second grievance of June 6, 1996, stated that the memorandum from Assistant Warden Hinsley and the Judge's order allowing phone calls to his attorney meant nothing to the commanding officers, particularly Captain Maui and Superintendent Pierson, and that plaintiff wanted his legal calls automatically, without asking, once a week. No response to this grievance is in the record.
Plaintiff's last grievance report of November 25, 1996, was a complaint about the "new telephone system" instituted at Menard. Plaintiff alleged that when he complained to the North One Segregation Unit sergeant and commanding officers, they told plaintiff that the system would not allow plaintiff to use the telephone because he was in C grade. Plaintiff asked that his account be activated so he could contact his attorney, as he had "a pending case going on" that he wanted to discuss. The counselor's response to this grievance directed plaintiff to defendant's October 8, 1996, memorandum on procedures for using the telephone, in particular, the part concerning inmates in C grade. The grievance officer's response also indicated that plaintiff's name had been submitted for "early B-grade consideration."
Defendant's October memorandum set out the new telephone use procedures, effective November 19, 1996, for the inmates at Menard. This procedure is described in pertinent part as follows: "Inmates who are in C-Grade, or have telephone privileges suspended, will not be allowed to make telephone calls. Inmates who are in A-Grade or B-Grade will be given the opportunity to place phone calls to anyone in the free community anywhere in the Continental United States from their cellhouse. This will be monitored by security staff to ensure phone access to these inmates. There will be unlimited access to inmate telephones on the Yard and Multi-Purpose Building. In addition to this unlimited access, there will be two additional telephones added in the Multi-Purpose Building, and six additional phones added on the South Yard. These additional phones will allow more inmates access to place calls to their families and friends."
The copy of the portion of the Illinois Administrative Code attached to plaintiff's complaint provides that inmates shall be granted telephone privileges "in accordance with his institutional status", that "a special telephone call" will be given to inmates, regardless of status, for valid emergencies, and that inmates who are "the subject of a new criminal indictment" shall be allowed reasonable calls to attorneys to secure defense ...