NO. 4-00-0960

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

JAMES C. CARUTH,

	Plaintiff-Appellant,

	v.

TAMELA QUINLEY and JERRY D. GILMORE,

	Defendants-Appellees.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Livingston County

No. 00MR51

Honorable

Harold J. Frobish,

Judge Presiding.

_________________________________________________________________

	JUSTICE STEIGMANN delivered the opinion of the court:

	In May 2000, plaintiff, James C. Caruth, an inmate at

Tamms Correctional Center (Tamms), filed a petition for a writ of

mandamus, in which he (1) alleged that disciplinary proceedings at Pontiac Correctional Center (Pontiac) were held in violation

of the applicable Department of Corrections (DOC) administrative

guidelines, and (2) requested that the trial court compel defen

dants, Tamela Quinley, chairman of the DOC adjustment committee,

and Jerry D. Gilmore, chief administrative officer at Pontiac, to

expunge his disciplinary record and restore to him certain

benefits and credits that had been revoked as a result of those

proceedings.  

	Defendants filed a motion to dismiss plaintiff's

petition, and in September 2000, the trial court granted that

motion following a hearing conducted by telephone conference call

with plaintiff's counsel and defendants' attorney.  The court

later dismissed plaintiff's motion for reconsideration.  

	Plaintiff appeals, arguing that the trial court abused

its discretion by dismissing his mandamus petition.  We affirm.

	I. BACKGROUND

	The record shows that following adjustment committee

hearings under Title 20, section 504.80, of the Illinois Adminis

trative Code (Administrative Code) (20 Ill. Adm. Code §504.80

(Conway Greene CD-ROM June 2002)), plaintiff was found guilty of

disciplinary infractions as follows:  one in 1996, seven in 1997,

and one in 1998.  In May 2000, plaintiff filed his amended

mandamus petition, alleging that the disciplinary proceedings at Pontiac had not been held in conformity with applicable DOC

administrative guidelines.  Specifically, he alleged that he had

been denied his right to due process (1) when the adjustment

committee did not call his witnesses or accept his "exonerative

evidence," and (2) in that the adjustment committee's summary

reports of his disciplinary proceedings provided insufficient

statements of the bases for finding him guilty.  As relief,

plaintiff requested that defendants be compelled to do the

following:  (1) expunge his disciplinary records; (2) award him

segregation credit totaling 19 months and 15 days; (3) award him

31 months of C-grade credits served; and (4) reinstate three

months of good-time credit.

	Later that month, the trial court sua sponte appointed the Livingston County public defender to represent plaintiff.  In

July 2000, defendants filed a motion to dismiss plaintiff's

petition, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2000)).  A docket entry

shows that in September 2000, the court conducted a hearing by

telephone conference call with plaintiff's counsel and defen

dants' attorney, after which the court granted the defendants'

motion to dismiss and vacated the public defender's appointment. 

Neither a transcript nor a bystander's report of that hearing is

included in the record.

	The trial court's September 1, 2000, docket entry

states, in pertinent part, as follows:

  	"[T]he court finds that the [plaintiff] has not exhausted his administrative remedies

prior to filing his mandamus action; the court further finds that the record does not

support the contention of the plaintiff that

there was a failure to call witnesses as

argued; the court further finds that the

[plaintiff] failed to request witnesses as

required of him; the court finds that the

[plaintiff] has not established a clear right

to the relief that he seeks and that, there

fore, mandamus does not lie."

	In October 2000, plaintiff filed a motion for reconsid

eration, which the trial court denied.  This appeal followed.

	II. ANALYSIS

	Plaintiff argues that the trial court abused its

discretion by dismissing his mandamus petition.  Specifically, he contends that (1) the trial court erroneously found that he (a)

had not exhausted his administrative remedies and (b) had not

properly requested witnesses; and (2) his due process rights were

violated by the adjustment committee's failure to call his

witnesses and state the bases for its findings of guilt.  Defen

dants reply that the trial court properly dismissed plaintiff's

petition because (1) plaintiff failed to show a clear right to

the relief requested, (2) his petition was untimely, and (3) he

failed to exhaust administrative remedies.  We agree with defen

dants.

	We review de novo the granting of a section 2-619 motion to dismiss.  Nowak v. St. Rita High School, 197 Ill. 2d 381, 389, 757 N.E.2d 471, 477 (2001).  The dissent contends that

the State's motion to dismiss should have been brought under

section 2-615 of the Code, not section 2-619(a)(9), because a

section 2-615 motion challenges a complaint for failing to state

a cause of action, while a 2-619(a)(9) motion admits the legal

sufficiency of a complaint but asserts that it is barred by some

affirmative matter.  735 ILCS 5/2-615, 2-619(a)(9) (West 2000). 

Because defendants' motion to dismiss here asserted that the

complaint failed to state a cause of action, the dissent is

correct that the defendants' motion came under the wrong section. 

"Nevertheless, a dismissal pursuant to section 2-619 may be

affirmed on any grounds which are called for by the record

regardless of whether the circuit court relied on those grounds

or whether the circuit court's reasoning was correct."  Wright v. City of Danville, 174 Ill. 2d 391, 399, 675 N.E.2d 110, 115 (1996).  

		"Mandamus relief is an extraordinary remedy to enforce, as a matter of right, the

performance of official duties by a public

official where the official is not exercising

discretion.  A court will not grant a writ of

mandamus unless the petitioner can demon strate a clear, affirmative right to relief,

a clear duty of the official to act, and

clear authority in the official to comply

with the writ.  The writ will not lie when

its effect is to substitute the court's judg

ment or discretion for the official's judg

ment or discretion.  Mandamus relief, there fore, is not appropriate to regulate a course

of official conduct or to enforce the perfor

mance of official duties generally."  Hatch v. Szymanski, 325 Ill. App. 3d 736, 739, 759 N.E.2d 585, 588 (2001).  

	A. Plaintiff's Right to Relief

	Plaintiff contends that the trial court abused its

discretion by dismissing his mandamus petition because defendants violated DOC administrative guidelines and his due process rights

when, in disciplinary proceedings, they (1) failed to call his

witnesses and prevented him from introducing documentary evi dence; and (2) failed to state the evidence supporting the

adjustment committee's guilty findings.  According to plaintiff,

these alleged violations of DOC rules and the United States

Constitution entitle him to expungement of his disciplinary

records and restoration of various benefits and credits.  We

disagree. 

	"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 institu

tional safety and correctional goals, an

opportunity to call witnesses and present

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."  Durbin v. Gilmore, 307 Ill. App. 3d 337, 343, 718 N.E.2d 292, 297

(1999).  

	DOC rules provide that prior to a hearing before the

adjustment committee, an inmate may make a written request that

witnesses be interviewed.  The inmate must set out his request in

the space provided on the disciplinary report, and he must

include an explanation of what the witnesses would state.  20

Ill. Adm. Code §504.80(f)(2) (Conway Greene CD-ROM June 2002). 

Section 504.80(h)(3) of the Administrative Code further provides

that inmates shall be provided with a means for submitting "witness request slips" (20 Ill. Adm. Code §504.80(h)(3) (Conway

Greene CD-ROM June 2002)).  At a hearing before the adjustment

committee, the inmate may make any relevant statement or produce

any relevant documents in his defense (20 Ill. Adm. Code

§504.80(f)(1) (Conway Greene CD-ROM June 2002)).  "The

[a]djustment [c]ommittee shall consider any statements of wit

nesses with relevant knowledge of the incident who are reasonably

available."  20 Ill. Adm. Code §504.80(h) (Conway Greene CD-ROM

June 2002).  However, the adjustment committee may disapprove

witness requests not received prior to the hearing (20 Ill. Adm.

Code §504.80(h)(3) (Conway Greene CD-ROM June 2002)) and may deny

witness requests if the witness's testimony would be irrelevant,

cumulative, or would jeopardize the safety or disrupt the secu

rity of the facility, among other reasons (20 Ill. Adm. Code

§504.80(h)(4) (Conway Greene CD-ROM June 2002)).

	The record before us includes adjustment committee

summary reports memorializing each of the plaintiff's disciplin

ary hearings.  Those reports show that in two of the nine disci

plinary hearings at issue, plaintiff requested witnesses (the

November 28, 1997, and January 14, 1998, hearings).  The report

of the November 28, 1997, hearing indicates that plaintiff's

witnesses were called, and the report of the January 14, 1998,

hearing shows that plaintiff's witness was not called because

plaintiff had failed to provide specific information regarding

what the witness could testify to.  The record also contains

photocopies of handwritten requests for witnesses relating to each of plaintiff's disciplinary proceedings, but we have no way

of knowing whether those requests were timely submitted or to

whom they were submitted.  The summary reports show that no

witnesses were requested by plaintiff.  In addition, the record

contains no evidence supporting plaintiff's claim that he sought

to introduce documentary evidence but was denied that opportu

nity.  (Notably absent from the record is any evidence that

plaintiff filed a grievance, pursuant to section 3-8-8 of the

Unified Code of Corrections (730 ILCS 5/3-8-8 (West 2000)) or

that Gilmore agreed to enter an expungement order, facts plain

tiff alleges for the first time on appeal.)

	This record does not clearly show plaintiff's right to

expungement of his disciplinary record or a duty on defendants'

part to take such action.  Nor does the record show that defen

dants failed to comply with DOC guidelines or violated plain

tiff's constitutional rights.  Plaintiff's contention that the

adjustment committee failed to state the bases for its guilty

findings is belied by the record.  On each summary report, a

reason for the adjustment committee's finding of guilt is stated. 

Moreover, pursuant to DOC guidelines, the decision not to inter

view an inmate's witnesses is a matter resting in the discretion

of the adjustment committee.  Mandamus does not afford a means to challenge or reverse an official's discretionary acts.  See Helm v. Washington, 308 Ill. App. 3d 255, 257, 720 N.E.2d 326, 328 (1999) ("Mandamus is an extraordinary remedy that may be used only to compel a public official or body to perform a ministerial duty in which the official exercises no discretion"); Hatch, 325 Ill. App. 3d at 739, 759 N.E.2d at 588 ("Mandamus relief *** is not appropriate to regulate a course of official conduct or to

enforce the performance of official duties generally").  We

therefore conclude that plaintiff failed to state a clear right

to the desired relief because the affirmative matters raised by

defendants, namely that plaintiff failed to exhaust his adminis

trative remedies and that his petition was time-barred, defeat

plaintiff's claims.  

	Although we agree with all of defendants' additional

arguments in support of the trial court's judgment, because we

conclude that the trial court properly dismissed plaintiff's

petition for failing to state a clear right to relief, we need

not address the other grounds upon which the court's order could

be affirmed.  

	Nevertheless, we are compelled to note that plaintiff

filed his mandamus petition in April 2000 complaining of defen dants' conduct at hearings in 1996, 1997, and January 1998.  A

complaint for mandamus must be brought within six months unless there is a reasonable explanation for delay.  Richter v. Collins ville Township, 97 Ill. App. 3d 801, 804, 423 N.E.2d 549, 552 (1981).  Plaintiff offers no explanation for the untimeliness of

his petition nor does our review of the record reveal one.

	III. CONCLUSION

	For the reasons stated, we affirm the trial court's

judgment.

	Affirmed.

	MYERSCOUGH, J., concurs.

	COOK, J., dissents.

	JUSTICE COOK, dissenting:

	I respectfully dissent.

	Plaintiff, a DOC inmate, filed an amended petition for

mandamus, alleging that DOC failed to comply with its regulations allowing him to call witnesses at his administrative disciplinary

hearings.  The trial court sua sponte appointed the Livingston County public defender to represent plaintiff.  Defendants then

filed a section 2-619(a)(9) motion to dismiss, alleging that

plaintiff failed to exhaust his administrative remedies, he

established no clear right to the relief he sought, his petition

was time-barred, and his petition was barred by laches.  On September 1, 2000, the trial court conducted a hearing by tele

phone conference call with the public defender and defendants'

attorney, granted the motion to dismiss, and immediately vacated

the public defender's appointment.  Plaintiff's brief states he

never asked for the appointment of an attorney, he never received

a copy of the motion to dismiss, and the public defender never

told him about it or spoke with him about it.  Nothing in the

record refutes plaintiff's allegations. 

	Appointment of counsel, while not required, is some

times appropriate to ensure that prisoners have meaningful access

to the courts.  Tedder v. Fairman, 92 Ill. 2d 216, 225, 441 N.E.2d 311, 314-15 (1982).  Where appointed counsel fails to

exercise due diligence in proceeding with the case, however, the

complaint should not be dismissed, and the cause will be remanded

to allow plaintiff to amend to attempt to state a cause of action.  Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 316.  

	A section 2-619(a)(9) motion admits the legal suffi

ciency of plaintiff's complaint and goes on to suggest that the

claim asserted is barred by other affirmative matter.  Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993).  Defendant may not prevail on a section

2-619(a)(9) motion without establishing some affirmative matter

which defeats the claim; simply negating the allegations of the

plaintiff's complaint is not sufficient.  Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735.  

	The majority affirms because it concludes "that the

trial court properly dismissed plaintiff's petition for failing

to state a clear right to relief."  Slip op. at 9.  The major

ity's action is contrary to established law.  The section 2-

619(a)(9) motion filed here admitted the legal sufficiency of

plaintiff's complaint.  

	Despite the majority's suggestion that mandamus does not afford a means to challenge or reverse an official's discre

tionary acts, in particular "the decision not to interview an

inmate's witnesses" (slip op. at 8), a number of cases have

recognized that mandamus is an appropriate remedy to force DOC to comply with its rules regarding administrative disciplinary

hearings, particularly the rules allowing the inmate to call

witnesses.  Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 316; Durbin, 307 Ill. App. 3d at 343, 718 N.E.2d at 297; West v. Gramley, 262 Ill. App. 3d 552, 557, 634 N.E.2d 1261, 1265 (1994) ("We have previously recognized prisoners may file a complaint for mandamus to compel DOC officials to perform as required under the rules

adopted by the DOC").  At the adjustment committee hearing,

"[t]he committed person may make any relevant statement or

produce any relevant documents in his or her defense."  20 Ill.

Adm. Code §504.80(f)(1) (Conway Greene CD-ROM June 2002).  "The

[a]Adjustment [acc]Co  ommittee shall consider any statements of wit

nesses with relevant knowledge of the incident who are reasonably

available."  20 Ill. Adm. Code §504.80(h) (Conway Greene CD-ROM

June 2002).  These rules are mandated by due process, which

requires that when consistent with institutional safety and

correctional goals, the inmate receive an opportunity to call

witnesses and present documentary evidence in his defense. 

Durbin, 307 Ill. App. 3d at 343, 718 N.E.2d at 297.     

	The majority also discusses the evidence in this case,

concluding that in one case plaintiff's witnesses were in fact

called, and that in another case the witnesses were properly not

called.  Slip op. at 7.  The majority suggests that plaintiff's

requests for witnesses were not properly submitted because "we

have no way of knowing whether those requests were timely submit

ted or to whom they were submitted."  Slip op. at 7-8.  The

majority concludes there is no support for plaintiff's claim that

he sought to introduce documentary evidence but was denied that

opportunity.  Slip op. at 8.  This analysis is inappropriate on a

section 2-619 motion (or for that matter, a section 2-615 mo

tion).  Simply negating the allegations of the plaintiff's complaint is not sufficient to prevail on a section 2-619 motion. 

Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735.  Complaining that there is no support for an allegation does not amount even to

negating the allegations.  The movant has the burden of proof on

a section 2-619 motion.  If the court has no way of knowing

whether the allegations of the complaint or the motion are

untrue, the motion should be denied.   

	The allegations in the section 2-619(a)(9) motion to

dismiss that plaintiff failed to exhaust his administrative

remedies and that his petition was time-barred do suggest "affir

mative matter" which might defeat plaintiff's claim and warrant

the granting of the motion.  Such allegations might constitute

those "easily proved issues of fact" independent of the overall

merits of the case, which are appropriately decided at the outset

of the case under section 2-619.  People v. Philip Morris, Inc., 198 Ill. 2d 87, 94, 759 N.E.2d 906, 911 (2001); Byron Dragway, Inc. v. County of Ogle, 326 Ill. App. 3d 70, 76, 759 N.E.2d 595, 601 (2001).  However, plaintiff was entitled to present "affida

vits or other proof denying the facts alleged or establishing

facts obviating the grounds of defect."  735 ILCS 5/2-619(c)

(West 2000).  In some cases plaintiff might even be entitled to

present evidence.  735 ILCS 5/2-619(c) (West 2000).  Plaintiff in

this case, who was not even informed of the motion, was denied

those rights, and the dismissal of the complaint should be

reversed and remanded.

	This case and other cases now before our court present the question whether a mandamus action is ever appropriate in this factual setting.  If it is not, we should say so.  Assuming

mandamus is sometimes appropriate, the question is presented whether the summary procedures adopted by the trial court and by

this court effectively separate the meritorious cases from those

which are frivolous.  I suggest they do not.    

	The majority mischaracterizes my dissent.  I do not

suggest that the State'sdefendants' motion to dismiss should have been

brought under section 2-615 and not under section 2-619.  Dis

missal of a case under section 2-615 is not a satisfactory way to

summarily terminate disfavored litigation:  (1) such dismissal is

proper only if it clearly appears that no set of facts can be

proved under the pleadings which will entitle the plaintiff to

recover (People ex rel. Ryan v. Telemarketing Associates, Inc., 198 Ill. 2d 345, 351, 763 N.E.2d 289, 293 (2001)) and (2) plain

tiff is generally entitled to amend after a section 2-615 dis

missal (see Mason v. Snyder, No. 4-01-0878, slip op. at 24 (August 1, 2002), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___

(Cook, J., dissenting)).  Section 2-619, on the other hand, is a

way to summarily terminate litigation.  Section 2-619 provides a

means for deciding easily proved issues of fact, independent of

the overall merits of the case, at the outset of the case.  

	As the majority now appears to concede, a section 2-619

dismissal cannot be sustained here because plaintiff was never

given the opportunity to respond to the affirmative matter raised

in the motion.  A section 2-615 dismissal cannot be sustained because complaints alleging that DOC failed to comply with its

rules regarding administrative disciplinary hearings, resulting

in a revocation of an inmate's good-time credit, generally state

a good cause of action in mandamus.  If it is the majority's position that a cause of action could be stated, but plaintiff

has not used the right language to do so, plaintiff must be given

leave to amend.  

	There is a logical progression to motions in civil

cases.  It is unusual to summarily terminate a civil case at an

early stage, without leave to amend and without any opportunity

to determine the facts.  If we choose to apply special rules of

practice and procedure to cases brought by inmates, we should not

pretend that we are following the established rules.