NO. 4-05-1035 Filed 12/19/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
KENNETH R. DYE, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Livingston County
GUY D. PIERCE, Warden; ROGER E. ) No. 05MR110
WALKER; MELODY FORD; ROBERT ELLINGER; )
ERIKA HOWARD; ANNABELLE MOTTELER; )
WESLEY G. WILES; BRIAN FAIRCHILD; ) Honorable
JEFF YUSKO; and CHRIS MAYBACK, ) Harold J. Frobish,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In October 2005, plaintiff, Kenneth R. Dye, an inmate
at Pontiac Correctional Center, pro se filed a petition for writ
of mandamus, in which he alleged that defendants, Guy D. Pierce
(Pontiac's warden), Roger E. Walker (the Director of the Illinois
Department of Corrections (DOC)), Melody Ford, Robert Ellinger,
Erika Howard, Annabelle Motteler, Wesley G. Wiles, Brian
Fairchild, Jeff Yusko, and Chris Mayback (DOC employees), vio-
lated his due-process rights in prison-disciplinary proceedings
arising out of a March 2005 incident at Western Illinois Correc-
tional Center.
In November 2005, defendants filed a motion to dismiss
Dye's mandamus complaint under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2004)). Following a December
2005 hearing, the trial court granted defendants' motion to
dismiss Dye's complaint.
Dye appeals, arguing that (1) the trial court erred by
dismissing his mandamus complaint and (2) he was denied due
process during the preparation of his appeal. We disagree and
affirm.
I. BACKGROUND
Dye's October 2005 mandamus complaint, and the attach-
ments thereto, in pertinent part, show the following. In a March
17, 2005, disciplinary report, prison nurse Delores Drennen
stated that she had attempted to draw blood from Dye's right arm.
After she punctured his skin, he complained of a "pinching"
feeling. Drennen asked another nurse to assist her. Dye then
yanked his right arm back, pulling the needle out of his arm. He
then grabbed Drennen and tried to push the needle into her arm.
She turned sideways to avoid contact with the needle.
A section at the bottom of the disciplinary report
indicated that the report was served on Dye by correctional
officer Mayback. It was not signed by Dye and a check mark
appears in the box next to the words: "Committed Person Refused
to Sign."
Following a March 21, 2005, adjustment committee
hearing, the adjustment committee found Dye guilty of assault
against Drennen. The adjustment committee's final report indi-
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cated that Dye "refused to appear before the committee to address
the charges." As a result of the proceeding, Dye was placed in
segregation for one year, had one year of good-conduct credit
revoked, and was placed under other restrictions.
On March 25, 2005, Dye filed a grievance, in which he
explained his version of the incident with Drennan. For relief,
Dye requested that (1) he and the nurses submit to polygraph
examinations and (2) the case be turned over to the "district
attorney" so that it could go before a judge.
On March 28, 2005, Dye filed another grievance, in
which he restated his version of events and added that (1) he did
not receive a disciplinary ticket and (2) was not given the
opportunity to appear before the adjustment committee. The
bottom section of the grievance form contains a section for
"counselor's response." In that section, Wiles, a correctional
counselor, wrote that he contacted correctional officer Yusko,
who said that he attempted to wake Dye several times on the
morning of the hearing, but Dye "failed to respond."
On March 29, 2005, Dye filed another grievance, stating
that Yusko either went to the wrong cell or was not telling the
truth. In the counselor's response section of that grievance
form, Wiles wrote that he had contacted Yusko, who said that he
went to the correct cell and that Dye failed to wake up.
In April 2005, Dye filed a request under the Freedom of
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Information Act (5 ILCS 140/1 through 11 (West 2004)) seeking
copies of the following: (1) the March 17, 2005, statement he
gave to internal-affairs investigators regarding the incident
with Drennen; (2) Drennen's incident report; and (3) the refusal
and waiver forms that Yusko provided to the adjustment committee.
Also in April 2005, a grievance officer filed a report
recommending that Dye's grievance be denied. On April 15, 2005,
the chief administrative officer concurred with the grievance
officer's decision.
Dye filed additional grievances in May and early June
2005. On June 8, 2005, Dye filed another grievance, in which he
stated that he had just received a copy of the original disci-
plinary ticket and learned which correctional officer had claimed
to have served the ticket on him.
On July 15, 2005, an administrative review board
hearing was conducted via video conference. Based on its review
of all the information and a compliance check of procedural due
process safeguards, the review board was reasonably certain that
Dye committed the alleged offense and recommended that his
grievance be denied.
In September 2005, Dye filed a petition for leave to
file a mandamus petition, alleging that (1) he was deprived of a
disciplinary hearing on March 21, 2005, (2) he did not receive a
copy of the charges against him 24 hours before the hearing, and
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(3) he was deprived of the right to call witnesses and take a
polygraph test. Dye sought either (1) dismissal of the charges
against him or (2) an adjustment committee hearing, a polygraph
test, the opportunity to interview his witnesses, and to have the
case moved to an "outside court."
In October 2005, Dye filed his mandamus complaint,
alleging that defendants failed to perform the following specific
duties: (1) "to heed [his] plea that [he] didn't receive a copy
of charges until 2[ ]1/2 months later," (2) to question Yusko and
Mayback regarding his grievance, (3) to give him an adjustment
committee hearing, (4) to interview his witnesses and allow him
to take a polygraph test, and (5) to have the nurses and correc-
tional officers submit to a polygraph test. For relief, Dye
sought (1) dismissal of the charges and rescission of the penal-
ties or (2) a jury trial or adjustment committee hearing at which
witnesses could testify and polygraph evidence could be consid-
ered.
In November 2005, defendants filed a section 2-615
motion to dismiss Dye's mandamus petition (735 ILCS 5/2-615 (West
2004)). Specifically, the motion asserted that (1) Dye received
the due process to which he was entitled and (2) Dye did not have
a cause of action under mandamus for denial of a Freedom of
Information Act request.
Following a December 2005 hearing on defendants' motion
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to dismiss, the trial court granted the motion. In its written
docket entry, the court wrote as follows:
"[The] court finds [Dye] cannot show that he
did not receive the disciplinary report in
question or that he failed to receive an
opportunity to attend the adjudication hear-
ing, from his own submissions; the court
further finds that [Dye's] challenge regard-
ing the Freedom of Information Act has been
improperly brought."
This appeal followed.
II. THE TRIAL COURT'S DISMISSAL OF DYE'S MANDAMUS COMPLAINT
Dye argues that the trial court erred by dismissing his
mandamus complaint because his constitutional rights were vio-
lated in his prison-disciplinary proceedings. We disagree.
"We review de novo a trial court's dismissal of a
complaint for failure to state a cause of action." Scotti v.
Taylor, 351 Ill. App. 3d 884, 887, 815 N.E.2d 10, 12 (2004).
Exhibits attached to a complaint are considered part of the
complaint and may be considered when addressing a section 2-615
motion to dismiss. Armstrong v. Snyder, 336 Ill. App. 3d 567,
569, 783 N.E.2d 1101, 1103 (2003).
"Mandamus relief is an extraordinary
remedy to enforce, as a matter of right, the
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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).
An allegation of a due-process-rights violation also
states a cause of action in mandamus. Armstrong, 336 Ill. App.
3d at 569, 783 N.E.2d at 1103. The United States Supreme Court
has held that under the principles of due process, inmates are
entitled to the following process in disciplinary proceedings:
(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
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documentary evidence in their defense; and (3) a written state-
ment by the fact finder of the evidence relied on in finding the
inmate guilty of committing the offense 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).
Dye first contends that he was denied due process in
that (1) he did not receive notice of the charge and (2) he did
not have the opportunity to appear before the adjustment commit-
tee or present evidence. To succeed on a mandamus complaint, the
plaintiff must be able to show a clear, affirmative right to
relief. Hatch, 325 Ill. App. 3d at 739, 759 N.E.2d at 588. The
attachments to Dye's complaint show that (1) Mayback served him
with notice of the charge, (2) Yusko attempted to rouse Dye and
escort him to the hearing, and (3) the administrative review
board later considered Dye's grievance regarding the disciplinary
process and determined that his grievance should be denied.
Thus, through his due-process claims, Dye essentially requests
that this court conclude that the committee and the review board
erred by not believing his version of events. It is the role of
those bodies to assess the credibility of witnesses and make
findings based on their assessments. Mandamus relief is avail-
able for the enforcement of official ministerial duties and is
not a mechanism for reversing the review board's factual findings
and credibility determinations. We thus conclude that Dye's
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mandamus complaint failed to assert facts showing a clear right
to mandamus relief.
Dye also contends that he was denied due process in
that the Illinois Department of Corrections refused to disclose
certain internal-affairs reports during his grievance process.
Specifically, he contends that the content of those reports
supported his claims of innocence and would have changed the
outcome of his grievance. We disagree.
DOC rules provide that on appeal of an inmate's griev-
ance, the administrative review board may call witnesses or
examine records "at its discretion." 20 Ill. Adm. Code
§504.850(d), as amended by 27 Ill. Reg. 6214, 6288 (eff. May 1,
2003).
The essence of Dye's argument is that the administra-
tive review board did not consider sufficient evidence to fairly
adjudicate his claim. Because the administrative review board's
decision of what evidence to consider is wholly discretionary, it
cannot be challenged through a mandamus petition. See Cannon v.
Quinley, 351 Ill. App. 3d 1120, 1131, 815 N.E.2d 443, 452 (2004),
quoting 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 discre-
tion'").
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We thus conclude that the trial court did not err by
dismissing Dye's mandamus complaint.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
McCULLOUGH and TURNER, JJ., concur.
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