NO. 4-02-0271

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

JAMES ARMSTRONG,					)	Appeal from

		Plaintiff-Appellant,		)	Circuit Court of

		v.						)	Sangamon County

DONALD N. SNYDER, JR., Director,		)	No. 01MR342

and GEORGE WELLBORN, Warden, Tamms		)

Correctional Center,				)	Honorable

		Defendants-Appellees.		)	Patrick W. Kelley,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Plaintiff, James Armstrong, an inmate at the Tamms

Correctional Center (Tamms), filed a pro se amended complaint (complaint) for mandamus in the Sangamon County circuit court on July 23, 2001.  The complaint sought to compel defendant, Donald

Snyder, Jr., Director of the Illinois Department of Corrections

(DOC), to expunge parts of plaintiff's disciplinary record. 

Plaintiff's complaint alleged that the discipline was imposed

without due process and in violation of statute and DOC regula

tions.  Defendant filed a motion pursuant to section 2-615 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)) to

dismiss plaintiff's complaint.  The trial court granted defen dant's motion to dismiss and ordered the cause stricken on

February 5, 2002.  Plaintiff appeals, arguing that the trial

court erred in dismissing his complaint.  We reverse and remand.  

		A section 2-615 motion to dismiss challenges the legal

sufficiency of the complaint.  People ex rel. Ryan v. Telemar- keting Associates, Inc., 198 Ill. 2d 345, 351, 763 N.E.2d 289, 293 (2001).  Dismissal pursuant to section 2-615 of the Code is only proper where, when construing the allegations of the com

plaint in the light most favorable to plaintiff, 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, 198 Ill. 2d at 351, 763 N.E.2d at 293.  Exhibits attached to the complaint are considered part of the complaint, and when

inconsistencies between the factual allegations and the exhibit

arise, the exhibit controls over the factual allegation in the

pleading.  Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill. App. 3d 346, 355, 763 N.E.2d 428, 437 (2002).  Our

review is de novo.  People ex rel. Ryan, 198 Ill. 2d at 351, 763 N.E.2d at 293.

		In this case, plaintiff's complaint alleged he was

denied due process at several different disciplinary hearings. 

The Supreme Court has held that prisoners are entitled to a

certain amount of process in disciplinary proceedings, that being

(1) notice of the disciplinary charges at least 24 hours prior to

the hearing; (2) when consistent with institutional 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, 563- 66, 41 L. Ed. 2d 935, 955-56, 94 S. Ct. 2963, 2978-79 (1974). 

DOC rules also require that prisoners receive process in disci

plinary hearings consistent with the principlasalsose enunciated in Wolff.  See 20 Ill. Adm. Code §504.80 (Conway Greene CD-ROM June 2002).  Mandamus is an appropriate remedy to compel DOC to conduct disciplinary hearings consistent with due process.  See,

e.g., Thompson v. Lane, 194 Ill. App. 3d 855, 864, 551 N.E.2d 731, 737 (1990) (affirming the trial court's order issuing a writ

of mandamus to compel DOC to conduct rehearing of inmates' disciplinary reports consistent with due process, or, in the

alternative, to restore plaintiffs' lost good-time credits and

demotion in grade).  We therefore look to plaintiff's complaint

to determine whether the facts alleged demonstrate that he was

denied due process in the disciplinary hearings sufficient to

state a cause of action in mandamus.

		We initially note that defendant argues some of plain

tiff's complaints are barred by laches.  "A complaint for manda mus must be brought within six months unless there is a reason able explanation for the delay."  Caruth v. Quinley, 333 Ill. App. 3d 94, 99-100, 775 N.E.2d 224, 228 (2002), citing Richter v. Col linsville Township, 97 Ill. App. 3d 801, 804, 423 N.E.2d 549, 552 (1981).  Defendant did not argue laches in the trial court.  See Richter, 97 Ill. App. 3d at 804, 423 N.E.2d at 552.  We therefore find that plaintiff's claims are not barred by laches.     	 	The first disciplinary proceeding complained of occurred on

September 14, 2000.  This was a hearing about an event that

occurred on September 9, 2000.  Plaintiff allegedly cursed at a

correctional officer and threatened to kick the officer's "ass"

when plaintiff was released from prison on "Wednesday."  Plain tiff requested three witnesses be interviewed:  Peter Guzman,

Officer "Bowery," and a nurse named "Twala."  Guzman was inter

viewed.  The final summary report indicates Officer Bowery and

Twala were not interviewed because there were no such persons

employed at Tamms.  

		Plaintiff argues that he was improperly denied his

right to request witnesses for this proceeding because Officer

"Bowers" and nurse "Twala Walton" do in fact work at Tamms.  The

State responds to this argument by noting that plaintiff admits

he gave the wrong names when he requested these witnesses;

plaintiff misspelled Bowers by one letter and did not know nurse

Twala's last name at the time.  Plaintiff argues that Officer

"Bowery" and nurse "Twala" were close enough that the DOC offi

cials knew whom he was talking about, but they refused to inter

view these witnesses out of spite.  Plaintiff also argues that

DOC improperly refused his request for assistance from a staff

member to determine Twala's last name.  See 20 Ill. Adm. Code

§504.80(i) (Conway Greene CD-ROM June 2002) ("The committed

person may request the assistance of a staff member in the

preparation and presentation of his or her defense if he or she

is illiterate or does not speak English or when other circum

stances exist which preclude the individual from adequately

preparing his or her defense").  

		 If requesting Officer "Bowery" and nurse "Twala" was

close enough that the DOC official knew whom plaintiff was

talking about, and if Officer Bowers and nurse Twala Walton work at Tamms and were available to give relevant testimony at plain

tiff's disciplinary hearing, then due process and DOC rules

required that these witnesses be interviewed upon plaintiff's

request.  See Wolff, 418 U.S. at 563-66, 41 L. Ed. 2d at 955-56, 94 S. Ct. at 2978-79; 20 Ill. Adm. Code §504.80(h) (Conway Greene

CD-ROM June 2002).  Of course, DOC would not have had to inter

view these witnesses if there were concerns about institutional

safety and correctional goals (Wolff, 418 U.S. at 566, 41 L. Ed. 2d at 956, 94 S. Ct. at 2979) or if the testimony would not have

been relevant and the witnesses not reasonably available.  20

Ill. Adm. Code §504.80(h) (Conway Greene CD-ROM June 2002).  DOC

did not raise any such concerns, however, and courts will not

presume that the safety of individuals or the institution is the

basis for refusing to provide information requested by a prisoner

unless DOC specifically says so.  Thompson, 194 Ill. App. 3d at 862, 551 N.E.2d at 735-36.

		Plaintiff's complaint raises a factual allegation,

which if proved true, would establish a violation of his due

process rights.  Specifically, at the September 14, 2000, disci

plinary hearing, DOC denied plaintiff his right to request

witnesses be interviewed and their testimony considered.  Alleg

ing a violation of due process rights and DOC rules in a prison

disciplinary proceeding states a cause of action in mandamus.  See, e.g., Thompson, 194 Ill. App. 3d at 863-64, 551 N.E.2d at 736-37.  Plaintiff's complaint about the September 14, 2000,

disciplinary hearing should not have been dismissed pursuant to section 2-615 because it states a cause of action on its face.

		The second disciplinary proceeding complained of

occurred on October 11, 2000.  This was a hearing about an event

that occurred on October 5, 2000.  Plaintiff allegedly spit on

another inmate through an ink pen as the other inmate was walking

past plaintiff's cell on the way to the shower.  Plaintiff claims

that he was not given adequate notice of the charges because the

ticket said he spit on the other inmate, not that he spit through

an ink pen.  We disagree.  Spitting is spitting.  Plaintiff had

sufficient notice of the charge against him.

		The third disciplinary proceeding complained of oc

curred on March 6, 2001.  This was a hearing about an event that

occurred on February 27, 2001.  Plaintiff allegedly attempted to

send out mail using another inmate's return address.  Plaintiff

simply makes an unsubstantiated claim that DOC withheld exculpa

tory information and that the committee was out to get him.  This

claim does not state a cause of action.

		The fourth disciplinary proceeding complained of

occurred on October 11, 2000.  This was a hearing about an event

that occurred on October 5, 2000.  Plaintiff makes no argument

about this proceeding on appeal, and therefore the matter is

waived.  Poelker v. Warrensburg -*Latham Community Unit School District No. 11, 251 Ill. App. 3d 270, 274-75, 621 N.E.2d 940, 945 (1993). 

		The fifth disciplinary proceeding complained of oc

curred on March 6, 2001.  This was a hearing about an event that occurred on March 1, 2000.  Plaintiff allegedly told an officer

that plaintiff was getting out soon, and he was going to shoot

the officer.  Two officers witnessed this.  One officer reported

that it happened at 9:55 a.m.  The other officer said it happened

at 10 a.m.  One officer's report had more detail about what

plaintiff said.  According to plaintiff, the differences in the

reports denied him notice needed to prepare a defense.  We

disagree.  Plaintiff was adequately advised of the charges

against him.  The slight difference in the officers' reports was

of no consequence.  

		Plaintiff finishes with a general claim that DOC

conducts "ghost hearings," meaning that the hearings are not

actually held.  However, plaintiff's own pleadings and the

exhibits in the form of the various reports and documents from

the disciplinary hearings prove that the hearings were held and

that plaintiff participated.  This self-contradictory claim is

without merit.         

III. CONCLUSION

		Plaintiff's complaint alleged facts, which if provend

true, would state a cause of action in mandamus for a violation of plaintiff's due process rights at the September 14, 2000,

disciplinary hearing.  All of plaintiff's other complaints fail

to state a cause of action in mandamus.  We therefore reverse the order of the trial court dismissing plaintiff's complaint and

remand for further proceedings consistent with this orderpinion.

		Reversed and remanded.

		MYERSCOUGH, P.J., and TURNER, J., concur.