On the one hand, courts evaluating whether Nutraloaf-like diets constitute cruel and unusual punishment have adjudged that similar regimes were "punishment," albeit of the non-cruel-and-unusual variety. LeMaire v. Maass, 12 F.3d 1444, 1455 (9th Cir. 1993) (upholding district court's finding that "Nutraloaf was being used punitively to control inmate behavior"); Breazil v. Bartlett, 998 F. Supp. 236, 242 (W.D.N.Y. 1997) (characterizing restrictive diet of Nutriloaf-and-cabbage as "punitive"); United States v. Michigan, 680 F. Supp. 270, 274 (W.D. Mich. 1988) (finding that food loaf is a "punishment" designed to "impress[] inmates with the understanding that extremely unpleasant results will occur whenever they engage in the prohibited behavior"); Arnett v. Snyder, 769 N.E.2d 943, 948-50 (Ill. App. Ct. 2001) (evaluating "punishment" called "meal loaf" under the Eighth Amendment), petition for leave to appeal denied, 766 N.E.2d 238 (Ill. 2002). Our decision is entirely consistent with these cases.
Instead, prison condition claims have ordinarily been brought, even in state court, under the Eighth Amendment or under applicable Illinois statutes. See, e.g., Arnett v. Snyder, 769 N.E.2d 943 (Ill. App. 2001); see also Ashley v. Snyder, 739 N.E.2d 897 (Ill. App. 2000) ("Illinois law creates no more rights for inmates than those which are constitutionally required.") (emphasis in original).
While courts have determined that disciplinary diets comported with constitutional requirements in a number of cases, the diets in those cases were imposed for significantly shorter periods of time. See, e.g., LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (holding that feeding inmate nutri-loaf for no more than seven days did not constitute an Eighth Amendment violation); Wingo v. Jenkins, No. 3:10-cv-00167, 2010 WL 4395446, at *3 (D. Nev. Oct. 29, 2010) (seven days); Daniels v. Neven, No. 2:09-cv-01906, 2010 WL 3385366, at *3 (D. Nev. Aug. 23, 2010) (four days); Gordon v. Barnett, No. C03-5524KLS, 2010 WL 597474, at *5 (W.D. Wash. Feb. 16, 2010) (two weeks); Allinger v. McDaniel, No. 03:06CV00139LRHVPC, 2007 WL 2875114, at *6 (D. Nev. Sept. 26, 2007) (three days); Arnett v. Snyder, 769 N.E.2d 943, 950 (Ill. App. Ct. 2001) (six days maximum); Adams v. Kincheloe, 743 F. Supp. 1385, 1391-92 (E.D. Wash. 1990) (five days); United States v. Michigan, 680 F. Supp. 270, 273 (W.D. Mich. 1988) (fourteen days); Borden v. Hofmann, 974 A.2d 1249, 1251 (Vt. 2009) (seven days maximum). In contrast, courts have reversed determinations that officials acted constitutionally where those officials deprived inmates of adequate and healthful food for lengthier periods of time, particularly where there was evidence that the diet caused negative physical effects on the inmate.
The sufficiency of affidavits cannot be tested for the first time on appeal where no objection was made in the trial court. Cordeck, 382 Ill.App.3d at 383 (quoting Arnett v. Snyder, 331 Ill.App.3d 518, 523, 769 N.E.2d 943, 947 (2001)).
Westfield and Swerbs Motors respond that Branklyn did not object to the affidavit before the trial court and has therefore waived the issue.¶ 16 A party may not challenge the sufficiency of an affidavit for the first time on appeal. Arnett v. Snyder, 331 Ill. App. 3d 518, 523 (2001). The party seeking to challenge an affidavit's sufficiency under Rule 191 bears the burden of both objecting before the trial court and obtaining a ruling on the issue.
¶ 93 To be clear, the principles of forfeiture can apply in the summary judgment context, and parties are generally bound by their failure to object to improper evidence. See, e.g., Arnett v. Snyder, 331 Ill. App. 3d 518, 523, 769 N.E.2d 943, 947 (2001) ("[T]he 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."). Nonetheless, under our de novo
However, AET forfeited these objections to Johnson's affidavit by failing to file a motion to strike the affidavit based upon these alleged deficiencies. “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.” Arnett v. Snyder, 331 Ill.App.3d 518, 523, 264 Ill.Dec. 106, 769 N.E.2d 943, 947 (2001) (citing Kolakowski v. Voris, 83 Ill.2d 388, 398, 47 Ill.Dec. 392, 415 N.E.2d 397, 402 (1980) ). ¶ 97 AET also failed to present any affidavits of its own to rebut Johnson's affidavit (or any of the EPA's other evidence, for that matter).
Due process rights are triggered when prison discipline deprives an inmate of property or a protected liberty interest. Arnett v. Snyder, 331 Ill. App. 3d 518, 527 (2001). An inmate does not have a liberty interest in having witnesses testify at a disciplinary hearing.
Failing to do so results in waiver, and the sufficiency of affidavits cannot be tested for the first time on appeal. Id. citing, Arnett v. Snyder, 331 Ill. App. 3d 518, 523 (2001). ¶ 9 Here, although Banzuly's response to Lieberman's motion for summary judgment described the affidavit as "inadequate," there is no indication in the record that Banzuly ever moved to strike or otherwise challenged the affidavit for failing to comply with Rule 191(a).
We note this court has similarly recognized Sandin's “abandonment of the liberty-interest methodology” previously established in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), noting “[t]he Hewitt approach had led courts to inject themselves deeply in the day-to-day management of prisons and to second-guess essentially prison managerial decisions.” Arnett v. Snyder, 331 Ill.App.3d 518, 527–28, 264 Ill.Dec. 106, 769 N.E.2d 943, 951 (2001) (citing Ashley, 316 Ill.App.3d at 1259, 250 Ill.Dec. 900, 739 N.E.2d at 903). ¶ 23 Here, the cases plaintiff cites are inapplicable as they rely on an outdated method for determining the existence of a state-created liberty interest.