## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Oliver v . Pierce , 2012 IL App (4th) 110005

Appellate Court Caption WI NFRED OL I VE R, Plaintiff-Appellant, v. GUY PI ERCE, Warden, Pontiac C o rrectional Center; DONAL D J

. GI SH, Chairper son of the Adjustment Commi ttee; SHERRY BEN TON, Administrative Review Boa rd; J EFF REY GAB OR, Interna l A ffa irs; P. HASTI NGS, Grieva

nce Offic er; and M I C HAEL P. RANDL E. Direc tor, The Depa rtment of Correc tions, Defenda

nts-Appellee s.

District & N o. Four th District Docke t No. 4-11-0005

Filed J anuar y 10, 2012

Held (Not e: Thi s syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court er re d in dismiss ing plaintiff’s petition for a writ of certiora ri to revie w the administrative finding that he committed disciplinary offe nses while in prison pu rs u an t to section 2-615 of the Code of Civil Procedur e, since the brief filed by defe ndants addre ssed the merits of plaintiff’s arg

ument that no evidenc e could have supported the finding that he committed the offe nses, but those consideratio n s were outside the scope of a section 2-615 motion, which require s the court to

acc ept as true all well-plea ded facts i n the complaint and all reasonable infere nces the ref

rom.

Dec ision Under Review Appea l from the Circuit Court of Sang amon County
, No. 10-MR-380; the Hon. J ohn Schmidt, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Winfred Oliver, of Pontiac, appellant pro se

.

L isa Madig an, Attorney Gene ral, of C h i ca g o (Michae l A. Scodro, Solicitor Gene ral, and Eric Truett, Assistant Attorn ey Gene ral, of counsel), f

or appe llees.

Panel J USTI CE COOK delivere d the judg ment of the c ourt, with opinion. Presiding J ustice Turner and J ustice Kne ch t concur red in the judgme nt and opinion.

OP INION

¶ 1 In J une 2010, plaintiff, Winfred Oliver, an inmate at Pontiac Correc tional Ce nter, filed

a petition for a writ of certiorari in the circ uit court, alleg ing defe ndants, prison office rs and employ ees, deprive d Oliver of due proce ss in connec tion with prison d i s ci p l inary
proce eding s ag ainst him. In November 2010, the court dismiss ed Oliver’s petition with prejudice . Oliver a

ppeals, a rguing dismissal was imprope r. We agree and re verse

.

¶ 2 I . BA CKGROUND ¶ 3 Acc ording to I llinois Depa rtment of Correc tions (DOC) prison inmate search re s ults, Oliver is curr ently in Pontiac, serving a 50-y ear sentenc e on his conviction for predatory criminal sexual assault. He is projec ted to be re lease d from prison on January 2, 2050. ¶ 4 In Dec ember 2009, defe ndant J eff rey Gabor
, a DOC investigator, rec eived a letter fr om Website Request, a company that provides Interne t acc es s to prison inmates, informing Gabor that Oliver had attempt ed to obtain photogr aphs of prete en children from Website Request. Oliver had asked that Website Request send him f our color prints of children as a test to see if they would evade Pontiac’s mail-scre ening sy stem. Oliver had included with his
reque st a pay

ment of $3.40. Following the alleg ations, Oliver was confine d in se g reg ation. When confr ont ed wi t h Gabor ’s information, Oliver admitted he had written the letter
reque sting the photog raphs. ¶ 5 In J anuar

y 2010, Gabor prepa

red a disciplinary repor

t al l egi n g Ol i v er h ad v i olated disciplinary offe nse Nos. 501 (violating state or fede ral laws) and 601 (aiding and abetting
, attempt, solicitation, or conspirac y to violate any

disciplinary

rule). 20 I ll. Adm. Code 504
app. A (2011). The disciplin ar y repor t specifie d that the law Oliver was alleg ed to have violated was child photogr aph y b y a s ex offe nder (720 I L CS 5/11-24(c) (3) (West 2008)), which makes it unlaw ful for a child sex off ender to know ingly “photograph *** a child, or instruct or direc t another person to photogr aph *** a child without the consent of the pare nt

-2-or guardia n.” ¶ 6 In Fe bruar

y 2010, following a discipli n ar y h ea ri n g, t h e Ad j ustment Commi ttee, a committee in char g e of conducting disciplinary hea r in g s o n a ll e g a

ti ons of major offe nses (see 20 I ll

. A d m. Code 504.50(d)( 3) (2011))
, found that Oliver committed the disciplinary offe nse

as repor ted and rec ommended the following disciplinary m easur es ag ainst him: (1) revocation of one y ear of g ood-time cre dits, (2) one y ear of “C-g rade ,” (3) one y ear o f

s egr eg ation, and (4) one y ear of restric ted commissary and audiovisual privileg es. After

rec eiving this finding ag ainst h i m , Ol iver exhausted his disciplinary and administrative

reme dies, maintaining there was no evidenc e to support a finding that he had committed or solicited or attempted to c ommit the child photogr aphy offe nse underly ing the disciplinary action. ¶ 7 In J une 2010, Oliver filed his petition for a common law writ of certiorari in the circ uit
court. In S ep t em b er 2010, defe ndants moved to dismiss pursuant to section 2-615 of the Code of Civil Procedur e (735 I L CS 5/2-615 (West 2008)). In November 2 0 1 0
, the court g rante d defe ndants’ motion, dismi ssing Oliver ’s petition with prejudice. ¶ 8 This appea l followed.

¶ 9 I I . ANALYSI S ¶ 10 On appe al, Oliver a rgues the trial c ourt err ed by dismiss ing his pe tition. W e agree

. ¶ 11 Dismissal of an action pursuant to section 2-615 is inappropria te wher e “the a lleg ations of t he complaint, when construed in the l ight most favor able to the pl aintiff, are s u fficie nt to e stablish a cause of action upon which relief may be g rante d.” Vitro v

. Mihelcic
, 209 I ll. 2d 76, 81, 806 N.E.2d 632, 634 (2004). I n ruli n g on a section 2-615 m otion to dismiss
, “a
court must acc ept as true all well-plea ded fac ts in the complaint and all rea sonable infere nces there from.” Id. The court must consider “[a]ll fac ts appar ent from the fac e of the pleading s, including the exhibi ts attached there to.” Gree n v. Rogers
, 234 I ll. 2d 478, 491, 917 N.E.2d 450, 459 (2009). The court may also consider matters of which it can take judicial notice and judicial admissions in the rec ord. Pooh-Bah Enterprises, Inc. v. County of Cook
, 232 I ll. 2d 463, 473, 905 N.E.2d 781, 789 (2009)

. ¶ 12 “A common law writ of certiorari is a g ener al method for obtaining circ uit court re view of adm i n i s t rative actions when the act confe rring power on the ag ency does not expressly adopt the Administrative Review L aw [(735 I L CS 5/3-101 throug h 3-113 (West 2008))] and provides for no o t her form of revie w.” Hanrahan v. W illiams
, 174 I ll. 2d 268, 272, 673 N.E.2d 251, 253 (1996). The standards of revie w in such an action “ar e essentially the same

as those under the Administrative Review L aw.” Id. at 272, 673 N.E.2d at 253-5 4

. Particularly
, “cour

ts g e n e r a ll y d o n o t in

terfe re with an ag ency ’s discretionar y authority unless the exercise of that discretion is arbitra ry and capr icious [citation] o r t h e agenc y action is
ag ainst the manifest weig ht of the evidenc e [citation] .” Id. at 272-73, 673 N.E.2d at 254. As the statutes reg arding prison disciplinary proce dures (see 730 I L CS 5/3-8-7 throug h 3-8-10 (West 2008)) neither adopt the Administrative Review L aw nor provide another method of judicial revie w of disciplinary proce dures, certiorari revie w o f prison discipline in the circ uit
court is appropr iate. Alicea v. Snyder
, 321 I ll. App. 3d 248, 253, 748 N.E.2d 285, 290 (2001).

-3-¶ 13 In W olff v. McD onnell
, 418 U.S. 539, 558 (1 9 7 4 ), t h e S u p reme Court held that due
proce ss protec ts a prison inmate from revoc ation of g ood-time cre dit unless the disciplinary
proce eding s comported with the st at e l aw s g overning prison discipline. The Court stated, “Since prisoners in Ne b ra s k a ca n only lose g ood-time cre dits if they are g uilty of serious misconduct, the deter

mination of whether such behavior has occur red become s critica l, and the minimum r equire ments of proce dural due proce ss appropr iate for the circ umstances must be obser ved.” Id. ¶ 14 L ike the state legi s l at u re i n W o l ff
, our Gene ral Assembly has set forth the proc edure s require d when DOC seeks to impose disciplinary seg reg ation ag ainst an inmate or revoke his
g ood-time cre dit or elig ibilit y t o ea rn good-time cre dit. 730 I L CS 5/3-8-7 (West 2008). Procee dings befor e the Adjustment Commi ttee specific ally are g overne d by section 504.80 of title 20 of the Administrative Code (20 I ll. Adm. Code 504.80 (2011))

. Under these rules, the Adjustment Commi ttee de te r mi n e s g u il t o r in nocenc e of an inmate char g ed with violating

a disciplinary offe nse “base d upon all rele vant information and evidenc e.” 20 I ll. Adm. Code 504.80(j) (2011). “The Commi ttee must be rea sonably satisfied there is some evidenc e that the offe nder committed the offe nse for the individual to be found g uilty .” 20 I ll. Adm. Code 504.80(j)(1) (2011). Even allowing for due defe rence to prison officia ls in “oper ating the prison disciplinary sy stem” ( Thompson v. Lane
, 194 I ll. App. 3d 855, 861, 551 N.E.2d 731, 735 (1990))
, these rules establish a standard ag ains t which a court may evaluate prison disciplinary

actions in the conte x t of certiorariproce eding s. ¶ 15 In this case, Oliver ’s petition for wr it of certiorarialleg es t hat no evidenc e could have supported the Adjustment Commi ttee’s finding that he committed disciplinary offe nse Nos. 501 and 601 by committing or attempting or soliciting to commit the offe nse specifie d in his disciplinary repor

t. Acc ording to Oliver, his actions at most constituted an attempt to possess photogr aphs of c hildren wher eas the offe nse cha rg ed re quires a se x offe nder to produc e or direc t the produ ction of photogr aphs of children. Acc epting Oliver’s alleg ations as true, Oliver would be entitled to r ever sal of the Adjustment Committ ee’ s determination of guilt and its imposit ion of sanctions ag ainst him. ¶ 16 Def

endants’ brief addre sses the merits of Oliver’s argument. They co n t en d Ol i v er ’s actions, when considere d in light of courts’ defe renc e to prison officia ls, fell within the rang e of behavior condemne d by the child photogr aphy offe nse and the disciplinary rules. Howeve r, even if corr ect, these considerations are outside the scop e o f a section 2-615 motion to dismiss

. They may be better addre ssed in summary judgme nt proce eding s or at a hear ing on the merits of Oliver’ s petition.

¶ 17 I I I . CONCL USI ON ¶ 18 For the fore g oing rea sons, we reve rse the trial court’s judgme nt a nd rema nd for f urther
proce eding s.

¶ 19 Reverse d and re manded.

-4-