Dye v. Pierce

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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