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Elliot A. Montes v. Gladyse Taylor

March 6, 2013

ELLIOT A. MONTES,
PLAINTIFF-APPELLANT,
v.
GLADYSE TAYLOR, 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.



Appeal from Circuit Court of Livingston County No. 11MR39 Honorable Jennifer H. Bauknecht,Judge Presiding.

The opinion of the court was delivered by: Justice Harris

Carla Bender 4th District Appellate Court, IL

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, 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.

ΒΆ 7 This appeal ...


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