October 30, 2001

JUSTICE TURNER delivered the opinion of the court:

In October 1999, plaintiffs, Gene Arnett, JermaineCarpenter (Carter), Terry Johnson, Jerrico Smalley, MichaelWilliams, and Steven R. Wuebbels, all inmates at Tamms Correctional Center (Tamms), filed a two-count complaint againstdefendant, Donald J. Snyder, Jr., the Director of the IllinoisDepartment 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 theUnified 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 thefourteenth 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 ahearing, the trial court granted defendant's motion and deniedplaintiffs'.

On appeal, plaintiffs assert the trial court erred ingranting summary judgment in favor of defendant. We affirm.

In June 1999, George Welborn, warden of Tamms, issuedwarden's bulletin No. 99-88 (hereinafter the Bulletin), establishing the "controlled-feeding status." "Controlled-feedingstatus" consists of a combination of regular food items preparedin a loaf served only with water for breakfast, lunch, anddinner. No utensils are provided with the "meal loaf," and noother food or liquids are provided. An inmate may be placed oncontrolled-feeding status for the following behavior: throwingfood items, utensils, containers, or trays; failure to return orproperly dispose of uneaten food, drink items, serving utensils,or trays; obstruction or prevention of the closure of foodpassage; spitting; throwing; making weapons; or improper disposalof human waste discharge or fluids. The first placement oncontrolled-feeding status is for 72 hours, consisting of ninemeals. Any subsequent violation may result in a six-day placement. At the end of each six-day period, a regular, medical, orreligious meal is to be served for 24 hours.

In October 1999, plaintiffs filed a two-count complaintseeking to enjoin Tamms' use of the controlled-feeding status. Plaintiffs filed the complaint as a class action, but the trialcourt never certified the class. In December 1999, plaintiffsfiled a motion for a preliminary injunction, attaching an affidavit of each named plaintiff. (The trial court never specificallyaddressed 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 beingplaced on controlled-feeding status. Johnson noted his violationwas expunged after the status ended. Plaintiffs were placed oncontrolled-feeding status for violations such as misuse ofproperty, disobeying an order, assaulting an officer, damage toproperty, arguing with an officer, and throwing an apple.

Plaintiffs compared the meal loaf to dog food and allclaimed they were unable to eat it. All of the plaintiffscomplained of headaches, dizziness, stomach pains, and fatiguedue to their failure to eat. Moreover, Smalley and Wuebbelscomplained they were unable to take medications while oncontrolled-feeding status because of their lack of eating.

In January 2000, defendant filed a motion for summaryjudgment and a supporting memorandum, asserting the policy didnot violate state law, the eighth amendment, or due process. Defendant also raised sovereign immunity. Attached to the motionwere the affidavits of Welborn and Bonnie Sullivan, a licenseddietician 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 modifyingthe recipes of dieticians of correctional facilities in otherstates. Meal loaves are not served to inmates with dietaryrestrictions and a vegan meal loaf is provided for inmates who,for religious reasons, request a vegan diet. According toSullivan, three servings of either type of meal loaf exceed theminimal nutritional and caloric requirements established by theNational Academy of Sciences, except for vitamin B-12. However,the meal loaf's vitamin B-12 deficiency is not harmful becausethe body produces vitamin B-12. The components used in the mealloaf are equivalent to the components served to the general-population inmates.

Sullivan further stated, between November 1998 andNovember 1999, four plaintiffs had gained weight, one refused tobe weighed, and one lost three pounds. Sullivan also attached toher affidavit the recipe for meal loaf. Meal loaf consists ofground beef, spinach, carrots, vegetarian beans, applesauce,tomato paste, potato flakes, bread crumbs, dry milk powder, andgarlic powder. See Appendix A. Vegan meal loaf has a similarrecipe with ground beef and milk powder omitted and margarineadded. See Appendix A.

In March 2000, plaintiffs filed a response to defendant's motion, attaching the same affidavits submitted with themotion 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 weighedimmediately before or after being placed on the controlled-feeding status. Plaintiffs also attached their medical records,which indicate they complained to medical personnel about themeal loaf.

Also, in March 2000, plaintiffs filed a motion forjudgment on the pleadings pursuant to section 2-615(e) of theCode of Civil Procedure (735 ILCS 5/2-615(e) (West 2000)),asserting no issues of fact exist and the facts indicate thecontrolled-feeding-status policy violates section 3-8-7 of theUnified Code.

In September 2000, the trial court granted defendant'smotion for summary judgment and denied plaintiffs' motion forjudgment on the pleadings. This appeal followed.

In his appellee brief, defendant asserts the plaintiffs' affidavits violate Supreme Court Rule 191(a) (145 Ill. 2dR. 191(a)), and plaintiffs failed to include a standard of reviewin their brief in violation of Rule 341(e)(3) (177 Ill. 2d R.341(e)(3)).

Defendant contends plaintiffs' affidavits violate Rule191(a) because the affidavits set forth opinions, not facts. InIllinois, the general rule is the sufficiency of affidavitscannot be tested for the first time on appeal where no objectionwas 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 byfailing to attack the affidavits in the trial court. SeeKolakowski, 83 Ill. 2d at 398, 415 N.E.2d at 402.

Defendant is correct that plaintiffs failed to statethe applicable standard of review. However, our review is nothindered by plaintiffs' error (see Moomaw v. Mentor H/S, Inc.,313 Ill. App. 3d 1031, 1035, 731 N.E.2d 816, 820 (2000)), and wewill apply the following standard of review.

Summary judgment is appropriate when the pleadings,depositions, admissions, and affidavits demonstrate no genuineissue of material fact exists and the movant is entitled tojudgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000);Boldini v. Owens Corning, 318 Ill. App. 3d 1167, 1169-70, 744N.E.2d 370, 372 (2001). In ruling on a motion for summaryjudgment, the trial court must view all evidence in the lightmost favorable to the nonmovant. We review grants of summaryjudgment de novo. Boldini, 318 Ill. App. 3d at 1170, 744 N.E.2dat 372.

Plaintiffs contend the controlled-feeding statusviolates section 3-8-7(b)(1) of the Unified Code. We disagree.

We apply the version of section 3-8-7 effective priorto Public Act 89-688 (Pub. Act 89-688,