specially concurring in part and dissenting in part:
I respectfully concur in part and dissent in part. I agree that defendant forfeited any objection to appellant’s affidavits. I disagree with the majority’s finding that the controlled-feeding status utilizing meal loaf as punishment does not violate section 3 — 8—7(b)(1) of the Unified Code.
Inmates are placed in prison as a punishment. Inmates have no choice over what they are fed. Moreover, controlled-feeding status appears to be a legitimate method of behavior modification. However, the legislature has unequivocally prohibited disciplinary restrictions on diet.
“Corporal punishment and disciplinary restrictions on diet, medical or sanitary facilities, clothing, bedding, mail[,] or access to legal materials are prohibited ***.” 730 ILCS 5/3 — 8—7(b)(1) (West 1996) (effective until June 1, 1997).
If DOC wishes to use meal loaf as a form of punishment, DOC must seek a change in the statutory language.
This statute has been amended since it was promulgated. Prior to February 1, 1978, the statute provided for some limited disciplinary restrictions on certain necessities and privileges, but not diet. Even though the legislature provided for some limited disciplinary restrictions, the legislature has never allowed disciplinary restrictions on diet. Moreover, it is anomalous to permit DOC to restrict an inmate’s diet when a trial court is prohibited from imposing similar restrictions. See Joseph, 105 Ill. App. 3d at 571, 434 N.E.2d at 455 (trial court sentenced defendant to seven years’ imprisonment with the conditions that defendant be placed in solitary confinement for a specified period and be fed only bread and water for that period of confinement). The appellate court in Joseph held that “[n]othing in the Code of Corrections authorizes a trial court to order [DOC] *** to feed [defendant] only bread and water. *** ‘[I]t remains primarily within the purview of the [DOC] to execute the sentence in accordance with the laws enacted by the legislature regarding the management [and] care *** of persons committed to [DOC].’ ” (Emphasis added.) Joseph, 105 Ill. App. 3d at 571, 434 N.E.2d at 455, quoting People v. Williams, 66 Ill. 2d 179, 187 (1977). Here, DOC is charged with the care of inmates while imprisoned, and DOC must do so in accordance with the statute. The DOC Bulletin regulation here permitting the serving of meal loaf to inmates as punishment may constitute a dietary restriction prohibited by the statute. Notably, according to appellees, no other institution in Illinois uses this practice. The DOC dietician also stated in her affidavit that she developed the meal loaf recipe by modifying recipes from correctional facilities in other states.
“Corporal punishment and disciplinary restrictions on diet are prohibited. Disciplinary restrictions on clothing, bedding, mail, visitations, the use of toilets, washbowls, showers[,] and the prison’s library of legal materials shall be imposed only for abuse of such privileges or facilities.” Ill. Rev. Stat. 1977, ch. 38, par. 1003— 8—7(b).
The majority contends that the statute merely prohibits DOC from denying inmates nutritionally adequate food for disciplinary reasons. I disagree. The statute prohibits disciplinary restrictions on diet. “Diet” is defined as “[a] regimen, esp. of food.” Black’s Law Dictionary 467 (7th ed. 1999). “Dietary” is defined as “the kinds and amounts of food available to or eaten by an individual,” and as “of or relating to a diet or the rules of a diet.” Merriam-Webster’s Collegiate Dictionary 322 (10th ed. 1998). “Restriction” is defined as “[a] limitation or qualification” (Black’s Law Dictionary 1316 (7th ed. 1999)) and as “something that restricts: as *** a regulation that restricts or restrains” (Merriam-Webster’s Collegiate Dictionary 999 (10th ed. 1998)). These servings of the meal loaf may very well exceed the minimal nutritional and caloric requirements; however, if the meal loaf is inedible, then the inmates’ diets have been limited, which amounts to a restriction on their diets. In addition, if the meal loaf is inedible, then the inmates are not receiving the daily nutritional requirements.
In this case, the trial court granted summary judgment in favor of DOC. However, genuine issues of material fact remain to be resolved on several issues. Plaintiffs filed affidavits in which they state that the meal loaf is physically inedible by human beings and, as a result, plaintiffs lost weight while on the meal loaf punishment. DOC did not submit an affidavit from anyone refuting the claims that the meal loaf was inedible or that plaintiffs had lost weight from the meal loaf regimen. Summary judgment is appropriate only where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” 735 ILCS 5/2 — 1005(c) (West 1998). At a minimum, a question exists as to whether the meal loaf was edible. If the meal loaf was inedible, then the fact that it contains the minimal nutritional and caloric requirements is irrelevant because the inmates are unable to eat the meal loaf. Moreover, a factual question remains regarding what constitutes a “dietary restriction.” What constitutes a dietary restriction cannot be determined as a matter of law. A factual question also remains as to whether being served a nutritionally adequate but inedible meal is a dietary restriction. Therefore, summary judgment was improper. I, therefore, respectfully dissent.
No. 4 — 00—0895 Appendix A
The record contains the following recipes:
Single Meal Loaf Recipe
This recipe must be followed without substitution or variation in procedure. Any such change could effect the nutrient content.
2 oz Ground Beef
Brown off in kettle and drain thoroughly
4 oz Canned, Chopped Spinach
4 oz Canned Carrots, Diced
4 oz Vegetarian Beans
Open and drain all vegetables well
4 oz Applesauce
1 oz Tomato Paste
1/2 cup Potato Flakes
1 cup Bread Crumbs
2 oz Dry Milk Powder
1 tsp Garlic Powder or Flakes
Combine beef and vegetables. Gradually blend in remaining ingredients until well combined. Mixture should be stiff but moist enough to spread. Each loaf should weigh V-k pounds precooked weight and be scaled to insure proper weight. Place mixture into a loaf pan that has been sprayed with pan release and lined with filter paper. Each loaf should bake at 300 degrees Fahrenheit in convection/steam oven for approximately 40 minutes or until the loaf reaches 155 degrees internal temperature.
Vegan Recipe
4 oz Canned, Chopped Spinach
4 oz Canned Carrots, Diced
8 oz Vegetarian Beans
Open and drain all vegetables well
4 oz Applesauce
1 oz Tomato Paste
1/2 cup Potato Flakes
1 cup Bread Crumbs
1 T Margarine
1 tsp Garlic Powder or Flakes
Combine drained vegetables. Gradually and gently blend in remaining ingredients until well combined but do not over beat. Mixture should be stiff but moist enough to spread. Each loaf should weigh V-k pounds precooked weight and be scaled to insure proper weight. Place mixture into a loaf pan that has been sprayed with pan release and lined with filter paper. Each loaf should bake at 300 degrees Fahrenheit in convection/steam oven for approximately 40 minutes or until the loaf reaches 155 degrees internal temperature.