JACK NEWSOME, Plаintiff-Appellant, v. THE PRISONER REVIEW BOARD et al., Defendants-Appellees.
Fourth District No. 4-00-1041
Appellate Court of Illinois, Fourth District
Opinion filed September 4, 2002.
Rehearing denied October 10, 2002.
333 Ill. App. 3d 917
James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Mary E. Welsh, Assistant Attorney General, of counsel), for appellees.
PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:
Plaintiff, Jack Newsome, an inmate of Stateville Correctional Center (Stateville), appeals pro se from the order of the circuit court of Livingston County dismissing his unamended pro se complaint for mandamus against defendants, “The Prisoner Review Board; Dwayne A. Clark; Leora Harry; Donald N. Snyder; Mark Nelson; Sergeant L. Gregory; D. Knight; Officer T. Ruffino; and Does 1 through 100.” The only parties to this appeal are plaintiff and defendants, the Prisoner Review Board and Snyder. The issues on appeal are whether (1) the complaint was properly dismissed for failure to state a cause of action in mandamus and (2) plaintiff was provided effective assistance by court-appointed counsel. We affirm.
We consider de novo the issue of whether the complaint stated a cause of action for mandamus. See Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51 (1993). Mandamus is a civil proceeding governed by
On May 23, 2000, plaintiff filed the pro se complaint for mandamus requesting a new hearing by the administrative review board or, in the alternative, reinstatement of his good-conduct credit and grade. This action arose out of an incident at Stateville on July 27, 1998. Correctional officer Ruffino wrote a disciplinary report against plaintiff for failing to stay with the group Ruffino was escorting and for striking Ruffino. Plaintiff wаs charged with disobeying a direct order,
On August 9, 1998, plaintiff filed a grievance charging that the thrеe inmate witnesses “may have” corroborated his statement that, prior to the incident, Ruffino put his hands on plaintiff with the deliberate intention of provoking a fight. Plaintiff argued that his request to review the relevant inmate movement sheets and mugshot book to discover the identities of the three inmate witnesses was not unreasonable. On December 17, 1998, the administrative review board, chaired by defendant Leora Harry, cоnducted a hearing on plaintiff‘s grievance. At the hearing, plaintiff described the incident as he felt it occurred and stated that Springborn was not present during the entire incident and could have no knowledge that Ruffino had shoved plaintiff prior to the confrontation. Plaintiff told the administrative review board that he was justified in assaulting Ruffino. The administrative review board concluded it was reasonably satisfied that plaintiff committed the infraction and recommended denying the grievance. Defendant Donald Snyder, the Director of the Department of Corrections (DOC), concurred.
In his mandamus complaint, plaintiff alleged that Ruffino violated
A mandamus action is not an appropriate means for seeking judicial review of an administrative proceeding. To withstand a challenge to the legal sufficiency of a complaint seeking mandamus, the complaint must allege facts establishing a clear right of the plaintiff to the desired relief, a clear duty of defendant to act, a clear authority in defendant to comply with the terms of the writ, and the activity sought to be compelled is ministerial and not discretionary. Dennis E., 256 Ill. App. 3d at 340-41, 628 N.E.2d at 367-68.
In Durbin v. Gilmore, 307 Ill. App. 3d 337, 343, 718 N.E.2d 292, 297 (1999), this court stated:
“Due process requires only that the inmate receive (1) advance written notice of the disciplinary charges at least 24 hours prior to hearing; (2) when consistent with institutional safety and correctional goals, an opportunity to call witnesses and presеnt documentary evidence in his defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 564-66, 41 L. Ed. 2d 935, 956, 94 S. Ct. 2963, 2979 (1974).”
DOC rules provide that a committed person, upon written request and for good cause shown, may be granted additional time to prepare a defense (
In this case, plaintiff did not make a proper written request for the three inmate witnesses to be interviewed, did not identify what their testimony would be оr identify them, and made an untimely oral motion for continuance, again failing to show good cause by identifying the inmates or the need for their testimony. Not until the grievance proceeding did plaintiff disclose his belief that the three other inmates “may have” corroborated his version of the incident. However, because their testimony would have been cumulative of his own testimony about the incident, the adjustment cоmmittee would have had the discretion not to interview those witnesses on that basis had the adjustment committee known of the nature of their testimony in advance of the hearing. The fact that plaintiff simply declined to present his version of the incident to the adjustment committee did not remove that discretion from the adjustment committee. The adjustment committee was not apprised that the statements of the three inmates would contradict the statement of Springborn. Moreover, plaintiff did not allege any facts that would bring into question the adjustment committee‘s determination not to interview those witnesses because to do so would undermine authority and jeopardize the security of the facility.
Because the decision not to interview the three inmate witnesses was a matter resting in the discretion of the adjustment committee, the complaint for mandamus was properly dismissed.
The remaining issue concerns the appropriate level of representation accorded plaintiff in the circuit court. After plaintiff filed his complaint on May 23, 2000, the trial court, at plaintiff‘s request, appointed the Livingston County public defender, David G. Ahlemeyer, to represent plaintiff. Defendants, Prisoner Review Board and Snyder, filed a motion to dismiss. The record does not disclosе service of summons on or acquisition of personal jurisdiction of any other defendants. A docket entry discloses that the trial court conducted a telephone conference on the motion to dismiss with Ahlemeyer and the assistant Attorney General on October 30, 2000. Following the telephone conference, the trial court granted the motion to dismiss and vacated Ahlemeyer‘s appointment. Ahlemеyer did not amend plaintiff‘s pro se complaint or file any reply or legal memorandum in response to the
Thе procedure employed in this case does not require reversing the trial court‘s dismissal of the petition for mandamus. The trial court may direct that arguments on motions be presented in a telephone conference. 145 Ill. 2d R. 185. This court considers the propriety of dismissing the petition de novo. Howell v. Snyder, 326 Ill. App. 3d 450, 453, 760 N.E.2d 1009, 1011 (2001).
In Tedder v. Fairman, 92 Ill. 2d 216, 224-25, 441 N.E.2d 311, 314-15 (1982), the supreme court found that indigent prisoners have no constitutional right to appointed counsel in a civil suit either at trial or on аppeal. However, the court did recognize a constitutional mandate of “meaningful access” to the courts. Tedder, 92 Ill. 2d at 225, 441 N.E.2d at 314. Although no legislative mandate requires the appointment of such counsel, the trial court has the discretion to appoint an attorney. Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 315. The supreme court stated:
“[O]nce a circuit court, in its discretion, has determined that appointment of the public defender is appropriate to represent an indigent prisoner, limited to a grievance relating to the conditions of his confinement, then that assistant public defender is expected to exercise due diligence in proceeding with the assigned case.” Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 315-16.
Tedder is distinguishable from this case. In Tedder, the trial court granted plaintiff 14 days to amend the petition and no amended petition was filed. Tedder, 92 Ill. 2d at 220, 441 N.E.2d at 312. The supreme court found that “[a]ppointed counsel failed to amend the pleading in the face of the circuit court[‘s] statements that” the petition was inadequate. Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 316.
Also distinguishable from Tedder is this court‘s decision in Marrero v. Peters, 229 Ill. App. 3d 752, 593 N.E.2d 1166 (1992). Marrero also involved an inmate filing a complaint for mandamus regarding a grievance with prison disciplinary proceedings. Marrero, 229 Ill. App.
In Marrero, this court found that the plaintiff was adequately represented by counsel in the trial court. Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168. The circuit court in Marrero found that plaintiff ” ‘can adequately present the issues in question should there be an appeal of this ruling’ ” (Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168), and this court decided that the plaintiff in that case “prеpared a clear and understandable complaint seeking mandamus” (Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168). Marrero stands for the proposition that, if plaintiff‘s pro se petition is adequate to disclose the nature of plaintiff‘s claim, appointed counsel need not amend the petition. See 188 Ill. 2d R. 604(d) (attorney appointed on a defendant‘s motion to withdraw the guilty plea or reconsider the sentence must certify that counsel “has made any amendments to the motion necessary for adequate presentation“). Moreover, plaintiff has suggested no way that appointed counsel in this case could have amended the complaint so as to state a cause of action for mandamus under the facts of this case.
The judgment of the circuit court of Livingston County is affirmed.
Affirmed.
STEIGMANN, J., concurs.
JUSTICE COOK, dissenting:
The underlying question in this case is whether the trial court may employ extraordinary procedures, not employed in any other
Many petitions filed by inmates are frivolous and without merit. However, the revocation of previously earned good-time credit as a sanction for serious misconduct ” ‘is unquestionably a matter of considеrable importance.’ ” Wolff v. McDonnell, 418 U.S. 539, 561, 41 L. Ed. 2d 935, 954, 94 S. Ct. 2963, 2977 (1974). The revocation of a year of good-time credit is very much like sentencing a defendant after a felony conviction. We have previously held that a prisoner may file a complaint for mandamus to compel DOC officials to perform as required under the rules adopted by the DOC. West v. Gramley, 262 Ill. App. 3d 552, 557, 634 N.E.2d 1261, 1265 (1994).
A
In this case defendants did not file any affidavits in support of their
The majority disregаrds the rules it has cited. The majority tells us that “plaintiff did not make a proper written request for the three inmate witnesses to be interviewed.” 333 Ill. App. 3d at 921. How can we reach that conclusion at this stage of the proceedings, in the absence of any testimony or record? Defendants have not raised that objection, perhaps conceding that a proper request was made, asserting instead that calling the inmаte witnesses would undermine authority and jeopardize security. An issue of fact cannot be resolved on a motion to dismiss. At this stage of the proceedings we must accept as true the fact that defendant properly exercised his right to call witnesses. It is certainly possible that plaintiff could prove that he made a proper written request or that the requirement of a writing was waived.
The majority asserts that plaintiff did not identify what the testimony of the three witnesses would be. The majority tells us, however, that plaintiff alleges that he:
“filed a grievance charging that the three inmate witnesses ‘may have’ corroborated his statement that, prior to the incident, Ruffino put his hands on plaintiff with the deliberate intention of provoking a fight.” 333 Ill. App. 3d at 919.
Interpreting the allegations of the complaint in the light most favorable to plaintiff, it is clear that the testimony of the three witnesses could have been favorable to plaintiff.
The majority disingenuously complains that plaintiff did not identify the three witnesses. Plaintiff‘s initial request was that defendants identify the witnesses, who were in the group Ruffino was escorting. Defendants have never indicated they are unaware of the identities of the three witnesses.
The majority complains that plaintiff “made an untimely oral motion for continuance.” 333 Ill. App. 3d at 921. The majority is apparently referring to plaintiff‘s oral request for a continuance at the hearing. If a committed person fails to make a timely request before
Finally the majority concludes that the adjustment committee properly exercised its discretion not to interview the witnesses “because their testimony would have been cumulative of [plaintiff‘s] own testimony.” 333 Ill. App. 3d at 921. How could the majority know what the testimony of these three unidentified witnesses would be? In considering plaintiff‘s grievance, the adjustment committee accepted the testimony of Springborn over the testimony of plaintiff. The testimony of other witnesses corroborating the testimony of plaintiff would have been relevant even if cumulative.
The majority does not suggest that a complaint for mandamus can never be filed when prison administrative proceedings have resulted in revocation of good-time credit. Instead the majority tells us that this particular complaint was insufficient because: it did not allege a proper request for witness interviews, it did not identify the testimony of the witnesses or identify the witnesses, and it did not allege good cause for a continuance. Such insufficiencies can be cured by amendment. It is improper to dismiss a complaint under section 2-615 without leave to amend unless it has become apparent that no set of facts could be pleaded that would entitle a plaintiff to recover. Neptuno Treuhand-Und Verwaltungsgesellschaft MBH v. Arbor, 295 Ill. App. 3d 567, 575-76, 692 N.E.2d 812, 819 (1998). Civil cases should be decided on the basis of substance, not technicalities. “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.”
Plaintiff‘s allegations may prove to be unfounded but we should follow the same rules in deciding this case that we would follow in any other case involving a section 2-619 motion to dismiss or a section 2-615 motion to dismiss. This complaint for mandamus should not have been dismissed on the pleadings without leave to amend.