NO. 4-00-1041

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

JACK NEWSOME,						)	Appeal from

		Plaintiff-Appellant,		)	Circuit Court of

		v.						)	Livingston County

THE ILLINOIS PRISON REVIEW BOARD;		)	No. 00MR57

DWAYNE A. CLARK, LEORA HARRY; DONALD N.	)

SNYDER; MARK NELSON; SERGEANT L.		)	

GREGORY; D. KNIGHT; OFFICER T. RUFFINO;	)	Honorable 	

and DOES 1 THROUGH 10,				)	Harold J. Frobish,

		Defendants-Appellees.		)	Judge Presiding.

_________________________________________________________________

		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 sections 14-101 through 14-109 of the Code of Civil Procedure (735 ILCS 5/14-101 through

14-109 (West 2000)), and it lies to compel an action by an officer

that is purely ministerial and not discretionary (Dennis E. v. O'Malley, 256 Ill. App. 3d 334, 341, 628 N.E.2d 362, 368 (1993)).  In determining whether the allegations of the complaint are

sufficient to state a cause of action, we take all well-pleaded

facts as true and view them in the light most favorable to

plaintiff.  Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584, 588 (1996).

		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

was charged with disobeying a direct order, insolence, intimidation

or threats, assault, and dangerous disturbance.  The following day,

plaintiff submitted a request to the adjustment committee for (1)

polygraph examinations of himself and Ruffino, (2) review of the

relevant inmate movement sheets, mugshot book, and surveillance

tape to identify three other inmates being escorted by Ruffino at

the time of and who witnessed the incident, and (3) an interview of

the food service supervisor with whom plaintiff claimed he stopped

to discuss his dietary requirements.  The adjustment committee,

comprised of defendants Nelson, Gregory, and Knight, conducted its

hearing on August 3, 1998.  At that hearing, plaintiff stated he

had no desire to make a comment and orally requested a continuance.  Plaintiff informed the adjustment committee that he did not know

the names of the three inmate witnesses.  The request for a

continuance was denied.  The adjustment committee found plaintiff

guilty of the charges on the basis that plaintiff admitted being

present at the incident, assistant warden Springborn saw plaintiff

strike and assault Ruffino, and Ruffino's report of the incident

was accurate.  In its summary, the adjustment committee stated that

the inmate witnesses were not called because doing so would

undermine authority and jeopardize security, and Springborn

witnessed the assault.  The adjustment committee then revoked one

year of plaintiff's good-conduct credit, demoted him to C grade for

one year, placed him in segregation for one year, and denied him

commissary and audiovisual privileges for three months.  Stateville

chief administrative officer Dwayne Clark approved the decision. 

		On August 9, 1998, plaintiff 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. 

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,

conducted 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 his rights to due process by omitting the names of the

three inmate witnesses from his report, the adjustment committee

violated his right to due process by not correcting Ruffino's

omissions or not interviewing the three inmate witnesses, and the

adjustment committee and the administrative review board knew that

the request to interview the three inmate witnesses was within the

purview of DOC rules.

		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 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.  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 (20 Ill. Adm. Code §504.80(e) (Conway Greene CD-ROM June

2002)) and, prior to hearing, may make a written request on the

space provided in the disciplinary report that witnesses be

interviewed, with inclusion of an explanation of what the witnesses

would state (20 Ill. Adm. Code §504.80(f)(2) (Conway Greene CD-ROM

June 2002)).  If the committed person fails to make a timely

request before hearing, a continuance may be granted for good cause

shown.  20 Ill. Adm. Code §504.80(f)(2) (Conway Greene CD-ROM June

2002).  "The Adjustment Committee shall consider any statements of

witnesses with relevant knowledge of the incident who are reason

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

ROM June 2002).  The adjustment committee, or its hearing officer,

may interview witnesses and prepare or review a summary of the

testimony prior to or subsequent to the hearing.  20 Ill. Adm. Code

§504.80(h)(1) (Conway Greene CD-ROM June 2002).  The committed

person does not have the right to confront or cross-examine

witnesses but may submit questions to be asked of the witness prior

to the hearing.  20 Ill. Adm. Code §504.80(h)(2) (Conway Greene CD-

ROM June 2002).  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 their testimony would be irrelevant or

cumulative or would jeopardize the safety or disrupt the security

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

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

		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 or 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 committee 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 to 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 disclose 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.  Ahlemeyer did not amend plaintiff's pro se complaint or file any reply or legal memorandum in response to the motion to dismiss.  In his pro se petition for rehearing, plaintiff stated that Ahlemeyer's contact with him was limited to

two letters and that Ahlemeyer ignored his repeated requests for a

meeting to discuss the issues and to amend the complaint. 

Plaintiff acknowledged in his petition for rehearing that Ahlemeyer

wrote to him on August 15, 2000, explaining his intended argument

in opposition to the motion to dismiss.  Ahlemeyer sent plaintiff

another letter dated September 12, 2000, assuring plaintiff that,

despite the apprehensions plaintiff expressed in his correspon

dence, the matters of which plaintiff complained would be addressed

in this case.  Copies of the correspondence between plaintiff and

Ahlemeyer were attached to the petition for rehearing.

		The 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 appeal.  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:

		"[oO]nce a circuit court, in its dis-

		cretion, 

		has determined that appointment of the

		the public defender is appropriate to repre-

		sent an indigent prisoner, limited to a 

		grievance relating to the conditions of his 

		confinement, then that assistant public 

		defender is expected to exercise due dili-

		gence 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. 3d at 753, 593 N.E.2d at 1167.  The trial court appointed the Livingston County public defender to represent

him; the State filed a motion to dismiss; and the trial court

conducted a telephone conference that resulted in the dismissal of

the complaint.  Marrero, 229 Ill. App. 3d at 754, 593 N.E.2d at 1167.  On appeal, the plaintiff argued that he was denied effective

assistance of counsel because the public defender never contacted

him, never investigated the allegations found in his complaint,

never filed an answer to the State's motion to dismiss or informed

him that the State had filed a motion to dismiss, and never

appeared in court to argue his case.  This court held that "the

supreme court's reference to due diligence in Tedder is an admonition to counsel to go forward in good faith."  Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168.  In Marrero, we further stated, "[w]hile we generally expect counsel to consult with a

client, we cannot conclude, given the circumstances of this case,

the public defender's performance fell below the due diligence

standard."  Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168.

		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 "prepared a clear and understand

able 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.

		COOK, J., dissents.

		JUSTICE COOK, dissenting:

		The underlying question in this case is whether the trial

court may employ extraordinary procedures, not employed in any

other cases, because of the problems presented by inmate litiga

tion.  At least the defendants in this case entered their appear

ance and filed a motion to dismiss, and plaintiff requested that

the trial court appoint counsel for him.  Cf. Mason v. Snyder, No. 4-01-0878 (August 1, 2002), ___ Ill. App. 3d ___, ___ N.E.2d ___ 

(inmate complaint for mandamus dismissed sua sponte before service of process or entry of appearance); cf. Caruth v. Quinley, No. 4- 00-0960 (August 14, 2002), ___ Ill. App. 3d ___, ___, ___ N.E.2d

___, ___ (trial court appointed counsel sua sponte).

		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 considerable 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 section 2-619(a)(9) motion (735 ILCS 5/2-619(a)(9)

(West 2000)), such as the motion thatwhich defendants filed here, admits

the legal sufficiency 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).  An example of a good

section 2-619 motion is where plaintiff states a good cause of

action for damages resulting from an automobile accident, but

defendant is able to show the statute of limitations has run, the

claim has been released, or the like.  Defendant may not prevail on

a section 2-619 motion without establishing some "affirmative

matter" thatwhich 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.  We consider an appeal from the granting

of a section 2-619 motion the same as we would consider an appeal

from the granting of a summary judgment.  Kedzie, 156 Ill. 2d at 116-17, 619 N.E.2d at 735.  Our review is de novo, which means that we give no deference to the decision of the trial court.  Jackson v. Graham, 323 Ill. App. 3d 766, 779, 753 N.E.2d 525, 536 (2001).  		In this case defendants did not file any affidavits in

support of their section 2-619(a)(9) motion, and we are therefore

limited to the face of the complaint in our search for "affirmative

matter."  Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735.  The majority states that the complaint was properly dismissed for

failure to state a cause of action in mandamus.  That, of course, is impossible.  Defendants' section 2-619(a)(9) motion admitted the

legal sufficiency of plaintiff's complaint.  Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735.  

		It appears that the majority is treating the motion to

dismiss as a motion filed under section 2-615.  735 ILCS 5/2-615

(West 2000).  As the majority points out, in ruling on a section 2-

615 motion, a court must accept as true all well-pleaded facts in

the complaint and all reasonable inferences that may be drawn from the complaint.  The court is to interpret the allegations of the

complaint in the light most favorable to the plaintiff.  A cause of

action should not be dismissed on the pleadings unless it clearly

appears that no set of facts can be proved under the pleadings that

will entitle the plaintiff to recover.  American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 279, 735 N.E.2d 551, 554 (2000).  

		The majority disregards 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."  Slip

op. at 6.  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 inmate

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 deliber-

		ate intention of provoking a fight."  Slip op. 

		at 3.    

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."  Slip op. at 6.  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 hearing, a continuance may be granted for good cause

shown.  20 Ill. Adm. Code §504.80(f)(2) (Conway Greene CD-ROM June

2002).  "The Adjustment Committee shall consider any statements of

witnesses with relevant knowledge of the incident who are reason

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

ROM June 2002).  Again, defendants did not complain that plaintiff

did not have good cause for making his request for continuance at

the time of the hearing.  We cannot determine the existence of good

cause on a section 2-615 motion to dismiss; instead, we must accept

as true all well-pleaded facts in the complaint and all reasonable

inferences that may be drawn from the complaint.  

		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."  Slip op. at 6.  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 corrobo

rating 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 inter

views, 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 MBHbh 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."  735 ILCS 5/2-603(c)

(West 2000).  The trial court, however, sought to prevent amendment

by not including leave to amend in its order and by immediately

discharging the attorney it had appointed for plaintiff.

		Plaintiff's allegations may prove to be unfounded but we

should follow the same rules in deciding this case whichthat 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.