Murillo v. Page

Rule 23 Order filed
December 31, 1997;
Motion to publish granted
February 4, 1998.              NO. 5-97-0307

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

CRAIG MURILLO,                      )  Appeal from the 
                                    )  Circuit Court of 
     Plaintiff-Appellant,           )  Randolph County.
                                    )  
v.                                  )  No. 97-MR-5
                                    )
THOMAS F. PAGE,                     )  Honorable
                                    )  William A. Schuwerk, Jr.,
     Defendant-Appellee.            )  Judge, presiding.  
_________________________________________________________________

     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.  
                                   FACTS
     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 counsel, again
without regard to the inmate's status.  20 Ill. Adm. Code
525.150(a),(b),(c) (1991).  
     Plaintiff contended in his complaint that defendant's denial
of phone access violates his first amendment right to free speech,
his sixth amendment right to the assistance of counsel, and his
fourteenth amendment due process right of access to the courts and
right of equal protection.  U.S. Const., amends. I, VI, & XIV. 
Plaintiff's prayer for relief sought compensatory damages, punitive
damages, and injunctive relief.  
     Defendant filed a motion to dismiss pursuant to section 2-615
of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)).  In
defendant's memorandum in support of his motion, he asserted that
plaintiff failed to show that defendant had any personal
involvement in the alleged constitutional violations, a necessary
element for a cause of action for individual liability under
section 1983.  On March 18, 1997, the court granted defendant's
motion to dismiss.  
     Plaintiff filed a motion to reconsider in which he asserted
that his complaint was against defendant in his individual capacity
and his official capacity.  Defendant again responded that
plaintiff failed to show that defendant had any personal
involvement which would subject him to liability.  Defendant
attached an affidavit to his response, in which he stated he does
not personally review grievances but delegates this duty; that he
authorized the telephone use procedures memorandum, but that this
was a general directive and not a specific directive to plaintiff;
that the memorandum allowed C grade inmates in protective custody
to make calls while on yard; and that plaintiff was removed from
segregation to C grade in protective custody on November 14, 1996,
five days prior to the effective date of the new telephone policy. 
     The court denied plaintiff's motion to reconsider, and
plaintiff appeals.  
                                 ANALYSIS    
     Plaintiff contends that defendant's denial of telephone access
violated his first, sixth, and fourteenth amendment constitutional
rights.  Plaintiff requested monetary relief based upon defendant's
personal liability and requested injunctive relief based upon
defendant's official conduct.  Plaintiff argues that defendant's
October 8, 1996, memorandum on telephone use by inmates established
defendant's personal involvement sufficient to withstand a motion
to dismiss.  
     A review of a motion to dismiss requires this court to
determine whether a complaint, when viewed in the light most
favorable to plaintiff, alleges sufficient facts to establish a
cause of action upon which relief may be granted.  Bivin v. Wright,
275 Ill. App. 3d 899 (1995).  A decision on a motion to dismiss is
a matter of discretion for the trial court, and a complaint should
not be dismissed unless it clearly appears that no set of facts can
be proved which entitles plaintiff to recover.  Bivin, 275 Ill.
App. 3d at 902.  All well-pleaded facts and inferences drawn
therefrom are accepted as true when a motion to dismiss on the
pleadings is allowed.  Webb v. Lane, 222 Ill. App. 3d 322 (1991). 
Further, a reviewing court may affirm a lower court's judgment on
any basis warranted by the record regardless of whether it was
relied on by the trial court.  Heepke v. Heepke Farms, Inc., 271
Ill. App. 3d 935 (1995). 
     A civil rights complaint under section 1983 can be brought
when a person whose conduct, under color of State law, has deprived
another of any rights, privileges, or immunities secured by the
constitution and laws.  Webb, 222 Ill. App. 3d at 326.  Thus, a
person pleading under section 1983 must present two essential
elements:  that the person committed the conduct under color of
State law and that the conduct deprived the complainant of his
constitutional rights.  Webb, 222 Ill. App. 3d at 326.   Pro se
civil rights complaints are to be accorded a liberal construction. 
Webb, 222 Ill. App. 3d at 327.  Where a section 1983 complaint is
based upon personal liability, it must be alleged that the
individual caused or participated in the constitutional
deprivation.  Vance v. Peters, 97 F.3d 987 (7th Cir. 1996).  With
these principles in mind, we consider plaintiff's complaint.  
     The State, in its brief, considered defendant's conduct during
two separate time periods, the time before November 19, 1996, the
effective date of the new procedures for inmate telephone use, and
the time after November 19, 1996.  We, too, divide defendant's
conduct accordingly, for a different analysis is needed for each
time period.   
     In plaintiff's complaint, he states that defendant is liable
because "he is responsible for the overall operations of the
facility, the supervision of staff members, [and] he ultimitly
[sic] is responsible for overseeig [sic] both program[s] and
operations of this facility, as well as assuring complinance [sic]
with all departmental directives [and] rules."  From this
statement, it is apparent that plaintiff predicates defendant's
personal liability, as well as his liability in his official
capacity, upon defendant's supervisory position.  
     Prior to November 19, 1996, plaintiff's complaint establishes
that commanding officers and unit supervisors prevented him from
having phone access to contact his attorney.  Responses to
plaintiff's first grievance report show that plaintiff was allowed
phone calls up until two weeks before he filed the April 20, 1996,
grievance, that the assistant warden advised the unit supervisor
and his staff to allow plaintiff to make his calls to his attorney,
and that defendant was advised of what had been done and that
plaintiff's grievance was resolved.  These facts do not assert that
defendant had personal knowledge of plaintiff's lack of phone
access or that he personally caused or participated in any conduct
that deprived plaintiff of his constitutional rights based upon the
lack of telephone access.  If any constitutional violations
occurred, the allegations should have been directed to the
individuals actually depriving plaintiff of his telephone access. 
To establish defendant's personal liability, plaintiff needed to
assert that defendant knew or turned a "blind eye" to the fact that
the supervisory personnel were not following the assistant warden's
directive or that Captain Maui was not permitting plaintiff his
calls.  Because plaintiff fails to assert in his complaint that
defendant personally did anything to deprive plaintiff phone access
before November 19, 1996, plaintiff has not stated a cause of
action for personal liability under section 1983.  
     However, after November 19, 1996, it can be said that
defendant had personal knowledge and that he caused plaintiff's
denial of phone access based upon his October 8, 1996, memorandum,
meeting the first element for personal liability under section
1983.  Therefore, we scrutinize plaintiff's complaint to determine
if he asserted sufficient facts to show that defendant's October
memorandum violated his constitutional rights.  
     Federal courts have determined that inmates retain their first
amendment rights to communicate with family and friends. 
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).  Nevertheless, an
inmate has no right to unlimited telephone use, and this right is
subject to rational limitations because of the legitimate security
interests of a penal institution.  Washington, 35 F.3d  at 1100. 
Only unreasonable restrictions violate this first amendment right. 
Washington, 35 F.3d  at 1100.  
     Here, defendant's October 8, 1996, memorandum allowed for any
inmate to have unlimited access to the telephone in the yard and in
the multipurpose building so that inmates may call family and
friends.  This memorandum does not support plaintiff's allegations
that he did not have telephone access.  Plaintiff's complaint
states that he was out of segregation five days before the new
phone policy was effective.  Plaintiff did not allege that he was
never on the yard or in the multipurpose building.  Further,
plaintiff did not assert that he was not allowed to receive calls
or write letters.  Plaintiff's complaint does not assert sufficient
facts to sustain a cause of action for a violation of his first
amendment right to freedom of speech.  
     To show that a sixth amendment right to the assistance of
counsel has been violated, a plaintiff must allege that the lack of
phone access actually or constructively denied him the assistance
of counsel altogether.  If a plaintiff was provided some
communication with counsel, then he has not been actually or
constructively denied all access to counsel, and therefore, he must
allege some prejudice resulted in his pending case from his
restricted communication with his attorney.  See United States v.
Lucas, 873 F.2d 1279 (9th Cir. 1989).  
     Plaintiff's complaint alleged that he was denied telephone
access to his attorney, but his grievance of April 20, 1996, states
that he had phone access up until two weeks prior to filing his
grievance.  This reveals that plaintiff had some communication with
his attorney after the filing of his pending case in February 1996,
so in order to sustain a cause of action under section 1983
plaintiff must allege in his complaint that he suffered some
prejudice in his pending case.  Plaintiff has not alleged that any
prejudice occurred in his pending case; therefore, he did not
assert sufficient facts to support a cause of action for a
violation of his sixth amendment right to the assistance of
counsel.
     Plaintiff alleged in his complaint that defendant's denial of
phone access to his attorney denied him his fourteenth amendment
constitutional right of access to the courts.  The constitutional
right of access to the courts basically requires prison authorities
to "assist inmates in the preparation and filing of meaningful
legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law."  Bounds v.
Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 83, 97 S. Ct. 1491
(1977).  In asserting a violation of the right to access to the
courts, an inmate also must allege that the prison authorities'
conduct interrupted or delayed a plaintiff's pending or
contemplated litigation.  Shango v. Jurich, 965 F.2d 289 (7th Cir.
1992). 
     Plaintiff has not alleged any facts that show that his alleged
lack of phone access interrupted or delayed any pending or
contemplated litigation.  Plaintiff has not alleged sufficient
facts to support a violation of his constitutional right to access
to the courts.
     Lastly, plaintiff has alleged that defendant's alleged denial
of phone access violated his fourteenth amendment right to equal
protection of the law.  Only unreasonable restrictions of telephone
use may violate plaintiff's fourteenth amendment rights.  Tucker v.
Randall, 948 F.2d 388 (7th Cir. 1991).  According to defendant's
memorandum, plaintiff could make unlimited calls in the yard and in
the multipurpose building.  Additionally, equal protection requires
that similarly situated individuals be treated in a similar manner. 
People v. Jackson, 269 Ill. App. 3d 851 (1995).  The United States
and Illinois Constitutions do not prohibit the State from drawing
lines that treat different classes of people differently.  Jackson,
269 Ill. App. 3d at 856.  
     We do not find that plaintiff has alleged any facts sufficient
to show how he was treated unequally, as the new phone procedure
applied to all inmates and all C grade inmates were treated
equally.  Plaintiff has not alleged sufficient facts to show that
the new phone procedure was an unreasonable restriction on him
alone.  Plaintiff has not alleged sufficient facts to support a
violation of his constitutional right to the equal protection of
the law.  Because plaintiff has not alleged facts sufficient to
show that his constitutional rights were violated or to sustain a
cause of action for defendant's personal liability under section
1983, either before November 19, 1996, or after November 19, 1996,
the trial court properly granted defendant's motion to dismiss for
the failure to state a cause of action.
     With regard to plaintiff's complaint for injunctive relief
based upon defendant's liability in his official capacity, we note
that, as stated in a motion filed with this court by plaintiff,
plaintiff no longer resides at Menard but is in Pontiac
Correctional Center.  When an inmate is transferred to another
prison, a claim for injunctive relief against an official at the
first prison is moot unless the inmate demonstrates that he is
likely to be transferred back to the former facility.  Higgason v.
Farley, 83 F.3d 807 (7th Cir. 1996).  Thus, plaintiff's complaint
for injunctive relief is also moot because he has been transferred.
                                CONCLUSION
     For the foregoing reasons, the judgment of the circuit court
of Randolph County is affirmed.

     Affirmed. 

     WELCH, P.J., and CHAPMAN, J., concur.