Appeal from Circuit Court of Sangamon County No. 99MR407 Honorable Thomas R. Appleton, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
In October 1999, plaintiffs, Gene Arnett, Jermaine Carpenter (Carter), Terry Johnson, Jerrico Smalley, Michael Williams, and Steven R. Wuebbels, all inmates at Tamms Correctional Center (Tamms), filed a two-count complaint against defendant, Donald J. Snyder, Jr., the Director of the Illinois Department of Corrections (DOC), seeking to enjoin Tamms' discipline policy known as "controlled-feeding status." Plaintiffs' complaint alleged the policy violated section 3-8-7 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-8-7 (West 1996) (effective until June 1, 1997)), the eighth amendment (U.S. Const., amend. VIII), and the due process clause of the fourteenth amendment (U.S. Const., amend. XIV). In January 2000, defendant filed a motion for summary judgment, and in March 2000, plaintiffs filed a motion for judgment on the pleadings. After a hearing, the trial court granted defendant's motion and denied plaintiffs'.
On appeal, plaintiffs assert the trial court erred in granting summary judgment in favor of defendant. We affirm.
In June 1999, George Welborn, warden of Tamms, issued warden's bulletin No. 99-88 (hereinafter the Bulletin), establishing the "controlled-feeding status." "Controlled-feeding status" consists of a combination of regular food items prepared in a loaf served only with water for breakfast, lunch, and dinner. No utensils are provided with the "meal loaf," and no other food or liquids are provided. An inmate may be placed on controlled-feeding status for the following behavior: throwing food items, utensils, containers, or trays; failure to return or properly dispose of uneaten food, drink items, serving utensils, or trays; obstruction or prevention of the closure of food passage; spitting; throwing; making weapons; or improper disposal of human waste discharge or fluids. The first placement on controlled-feeding status is for 72 hours, consisting of nine meals.
Any subsequent violation may result in a six-day placement. At the end of each six-day period, a regular, medical, or religious meal is to be served for 24 hours.
In October 1999, plaintiffs filed a two-count complaint seeking to enjoin Tamms' use of the controlled-feeding status. Plaintiffs filed the complaint as a class action, but the trial court never certified the class. In December 1999, plaintiffs filed a motion for a preliminary injunction, attaching an affidavit of each named plaintiff. (The trial court never specifically addressed this motion.)
In their affidavits, plaintiffs complained they received no notice of the reason for being placed on controlled-feeding status and no hearing before being placed on the status. However, plaintiffs did receive the Bulletin prior to being placed on controlled-feeding status. Johnson noted his violation was expunged after the status ended.
Plaintiffs were placed on controlled-feeding status for violations such as misuse of property, disobeying an order, assaulting an officer, damage to property, arguing with an officer, and throwing an apple.
Plaintiffs compared the meal loaf to dog food and all claimed they were unable to eat it. All of the plaintiffs complained of headaches, dizziness, stomach pains, and fatigue due to their failure to eat. Moreover, Smalley and Wuebbels complained they were unable to take medications while on controlled-feeding status because of their lack of eating.
In January 2000, defendant filed a motion for summary judgment and a supporting memorandum, asserting the policy did not violate state law, the eighth amendment, or due process. Defendant also raised sovereign immunity. Attached to the motion were the affidavits of Welborn and Bonnie Sullivan, a licensed dietician and Tamms' dietary manager.
In his affidavit, Welborn explained the controlled-feeding status as set forth in the Bulletin. In her affidavit, Sullivan stated she developed the meal loaf recipe by modifying the recipes of dieticians of correctional facilities in other states. Meal loaves are not served to inmates with dietary restrictions and a vegan meal loaf is provided for inmates who, for religious reasons, request a vegan diet.
According to Sullivan, three servings of either type of meal loaf exceed the minimal nutritional and caloric requirements established by the National Academy of Sciences, except for vitamin B-12. However, the meal loaf's vitamin B-12 deficiency is not harmful because the body produces vitamin B-12. The components used in the meal loaf are equivalent to the components served to the general-population inmates.
Sullivan further stated, between November 1998 and November 1999, four plaintiffs had gained weight, one refused to be weighed, and one lost three pounds. Sullivan also attached to her affidavit the recipe for meal loaf. Meal loaf consists of ground beef, spinach, carrots, vegetarian beans, applesauce, tomato paste, potato flakes, bread crumbs, dry milk powder, and garlic powder. See Appendix A. Vegan meal loaf has a similar recipe with ground beef and milk powder omitted and margarine added. See Appendix A.
In March 2000, plaintiffs filed a response to defendant's motion, attaching the same affidavits submitted with the motion for a preliminary injunction. In their response, plaintiffs assert each of them lost weight while on the controlled-feeding status. However, plaintiffs admit they were not weighed immediately before or after being placed on the controlled-feeding status. Plaintiffs also attached their medical records, which indicate they complained to medical personnel about the meal loaf.
Also, in March 2000, plaintiffs filed a motion for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2000)), asserting no issues of fact exist and the facts indicate the controlled-feeding-status policy violates section 3-8-7 of the Unified Code.
In September 2000, the trial court granted defendant's motion for summary judgment and denied plaintiffs' motion for judgment on the pleadings. This appeal followed.
In his appellee brief, defendant asserts the plaintiffs' affidavits violate Supreme Court Rule 191(a) (145 Ill. 2d R. 191(a)), and plaintiffs failed to include a standard of review in their brief in violation of Rule 341(e)(3) (177 Ill. 2d R. 341(e)(3)).
Defendant contends plaintiffs' affidavits violate Rule 191(a) because the affidavits set forth opinions, not facts. In Illinois, the general rule is the sufficiency of affidavits cannot be tested for the first time on appeal where no objection was made by a motion to strike, or otherwise, in the trial court. Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402 (1980). Accordingly, defendant has forfeited this argument by failing to attack the affidavits in the trial court. See Kolakowski, 83 Ill. 2d at 398, 415 N.E.2d at 402.
Defendant is correct that plaintiffs failed to state the applicable standard of review. However, our review is not hindered by plaintiffs' error (see Moomaw v. Mentor H/S, Inc., 313 Ill. App. 3d 1031, 1035, 731 N.E.2d 816, 820 (2000)), and we will apply the following standard of review.
Summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Boldini v. Owens Corning, 318 Ill. App. 3d 1167, 1169-70, 744 N.E.2d 370, 372 (2001). In ruling on a motion for summary judgment, the trial court must view all evidence in the light most favorable to the non-movant. We review grants of summary judgment de novo. Boldini, 318 Ill. App. 3d at 1170, 744 N.E.2d at 372.
B. Section 3-8-7 of the Unified Code
Plaintiffs contend the controlled-feeding status violates section 3-8-7(b)(1) of the Unified Code. We disagree.
We apply the version of section 3-8-7 effective prior to Public Act 89-688 (Pub. Act 89-688, §5, eff. June 1, 1997 (1996 Ill. Laws 3738, 3758-59)) because this court found Public Act 89-688 violated the single subject rule (see People v. Foster, 316 Ill. App. 3d 855, 860, 737 N.E.2d 1125, 1130 (2000)). Section 3-8-7 provides, in relevant part: "Corporal punishment and disciplinary restrictions on diet, medical or sanitary facilities, clothing, bedding, mail[,] or access to legal material are prohibited ***." 730 ILCS 5/3-8-7(b)(1) (West 1996) (effective until June 1, 1997).
Plaintiffs argue diet means the usual food and drink of a person, and thus section 3-8-7(b)(1) prohibits giving inmates different food from the rest of the prison population for discipline purposes. Defendant asserts the section prohibits DOC from ...