delivered the opinion of the court:
The captioned cases are consolidated on appeal. Both petitioners are inmates at Pontiac Correctional Center and appeal from judgments of the circuit court of Livingston County entered on December 26, 1979, as to petitioner Paul William Tedder in our General No. 16002, and as to petitioner Thomas Bass in our General No. 16041, each dismissing, in bar of action, upon respondents’ motions, petitioners’ respective complaints. Respondents are various officials and agents of the Illinois Department of Corrections.
The State Appellate Defender was appointed to represent petitioners but has filed a motion to withdraw, asserting that the duties of that office do not include representation of indigent prisoners seeking the type of relief requested here. We have ordered the motion taken with the case. Pursuant to our order, the State Appellate Defender has also filed adversary briefs on behalf of petitioners.
Although the petitions were dismissed for failure to state a cause of action, the complicated problems involved require an extensive recitation of the proceedings in the trial court.
Tedder filed a request as a pauper for appointment of counsel and a petition for mandamus, alternatively habeas corpus, August 17, 1979. He alleged: (1) he had “bad nerves” causing insomnia; (2) he had been attempting to get “adequate medical attention” from the prison hospital since 1977 and to see a psychiatrist since 1978; (3) he was seen by a psychiatrist on one occasion but the prison administration did not treat him “in accordence [sic] with the recommendation of the prison psychatrists [sic] prescriptions;” and (4) the lack of treatment was causing him great mental suffering which would become progressively worse. The trial judge appointed the Livingston County public defender to represent Tedder August 20, 1979. The respondents moved to dismiss the petition for failure to state a cause of action (Ill. Rev. Stat. 1979, ch. 110, par. 45) September 24, 1979. According to the motion, habeas corpus was inappropriate because Tedder was neither questioning the validity of his conviction nor requesting relief, and mandamus was unattainable because Tedder was not requesting the performance of a specific mandatory act, for medical treatment is discretionary. In the alternative, the respondents requested a more definite statement of the acts desired by Tedder, of his legal right to those acts, and of the respondents’ past nonfeasance. Tedder moved for a continuance September 27, 1979.
The clerk of the circuit court sent Tedder a letter September 27,1979, informing him of the appointment of Thomas Blakeman, an assistant public defender, as counsel.
In a hearing held October 4, 1979, the trial judge granted the respondents’ motion to dismiss the habeas corpus claim and ordered a more definite statement of facts in the petition for mandamus. David Ahlemeyer, the public defender for the county, represented Tedder at that hearing. The docket sheet shows the case continued until November 28, 1979, with Tedder to plead anew by then.
Blakeman wrote to Tedder October 18, 1979, apprising him of the progress in this case and several others. Blakeman wrote that the trial judge had dismissed the habeas corpus petition but did not refer to the opportunity to amend the petition for mandamus. The letter also told Tedder of the date by which responsive pleadings in the mandamus action were due.
On October 25, 1979, the trial judge wrote to Tedder informing him of the development and actions taken in Tedder’s seven cases before the court. With regard to this case, 79-MR-53, the trial judge explained that the mandamus aspect was continued and that he had been granted leave to amend the habeas corpus petition within 10 days, but no amendment was ever filed.
Blakeman appeared for Tedder at the mandamus hearing held November 28, 1979. The respondents moved to dismiss the complaint because an amended petition had not been filed. Blakeman said that Ahlemeyer had told him to amend the complaint in 79-MR-62, not 79-MR-53. Blakeman thought that his office rather than Tedder was to blame for the confusion. The trial judge granted a 14-day extension for filing an amended petition and postponed the hearing on the merits until December 26, 1979.
Tedder filed a petition for rehearing, alternatively a notice of appeal, December 18,1979, apparently on the dismissal of the mandamus portion of the original petition, for, as the transcript at the December 26 hearing shows, appointed counsel did not file amended pleadings within the 14-day extension granted in November. According to the petition and a supporting affidavit, Tedder had been in the detention unit at Pontiac since August 2, 1979; Blakeman had refused to go to the prison to discuss the case and the trial judge had denied Tedder’s request for appointment of a different attorney. Tedder maintained that his counsel had been ineffective and he had been unable to do his own research or consult with an inmate lawyer. Tedder also contended that he had received no information concerning the defects in his pleadings.
At the hearing held December 26,1979, Blakeman again appeared on Tedder’s behalf. Because an amended petition had not been filed, the trial judge granted the respondents’ motion to dismiss the case with prejudice. Blakeman asked that Tedder’s petition filed in December be regarded as a notice of appeal. The court then entered a final order, finding the petition for habeas corpus defective because Tedder was not entitled to discharge from custody under section 21 of the Habeas Corpus Act (111. Rev. Stat. 1979, ch. 65, par. 21). The court found that the part of the petition seeking mandamus failed to state a cause of action because it did not “request defendants to perform a specific act. Furthermore, medical treatment of an inmate is a discretionary act and mandamus will not lie to order performance of a discretionary act.” Tedder’s notice of appeal was filed that same day, and the State Appellate Defender was appointed for the appeal.
Bass filed a combined petition for mandamus, declaratory relief, and damages on October 25, 1979. It alleged (1) the Institutional Assignment Commission of the Department of Corrections had denied his requests for transfer to other prisons because he had stabbed a guard, been convicted of an escape in 1972 and was aggressive; (2) he had protested the denial by filing a grievance to the Department’s Institutional Inquiry Board which deemed his grievance to be without merit; (3) he had never stabbed a guard or been charged with doing so; (4) he felt threatened by gang members who believed that he had informed on them to guards; (5) other prisoners frequently hit him and threw things at him while he went about his work assignment; and (6) he was placed in segregation when he refused to do his assigned work. With regard to mandamus relief, Bass requested a transfer to any prison except Stateville or Menard and expungement from his record of the disciplinary reports issued for not performing work and of an unspecified false report — presumably the allegation that he had stabbed a guard. Bass also sought a declaration that the respondents’ actions violated the Federal and State constitutions and requested $10,000 in both punitive and compensatory damages.
On October 25,1979, the trial judge appointed the public defender to represent Bass and scheduled a hearing on motions for November 28, 1979. The State filed a motion to dismiss under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) on November 26, 1979, arguing that the petition did not allege facts sufficient to justify a decree of mandamus.
Blakeman represented Bass at the hearing held November 28, 1979, but did not argue against the respondents’ motion; the trial judge dismissed the petition, granted Bass leave to amend within 14 days, and scheduled another hearing for December 26, 1979. In a letter to the trial judge dated December 23, 1979, Bass stated that delays in photocopying at the prison library would postpone the filing of his amended pleadings until around December 31, 1979. A hearing was held on December 26 with Blakeman again appearing on behalf of Bass. The case was dismissed because no amended pleading had been filed.
On December 27,1979, Bass filed a motion to proceed pro se and for the original petition to be construed as a civil action. The trial judge wrote to Bass December 27,1979, explaining that the action had been regarded as civil all along and that the petition had been dismissed with prejudice for failure to amend the pleadings. Bass filed a notice of appeal January 11,1980. The trial judge appointed the State Appellate Defender January 14, 1980, to represent Bass on his appeal.
Besides the narrow question whether the trial court erred in dismissing Tedder’s and Bass’ petitions, we must also decide whether and when prisoners have the right to appointed counsel in both the trial court and on appeal. These additional questions arise not only because of the motion of the State Appellate Defender to withdraw but also because of the problems that would arise in the trial court upon any remand of the case.
The Federal constitutional right of an indigent charged with the commission of a crime to appointed counsel has been recognized since Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792. Similarly, a convicted indigent has the same right to appointed counsel on a first appeal if the appeal is a matter of right (Douglas v. California (1963), 372 U.S. 353,9 L. Ed. 2d 811, 83 S. Ct. 814) but not if the appeal is discretionary. Ross v. Moffitt (1974), 417 U.S. 600,41 L. Ed. 2d 341, 94 S. Ct. 2437.
In a number of cases involving family law, the courts have required the appointment of counsel for indigents to protect what is termed basic, fundamental, or significant interests. Salas v. Cortez (1979), 24 Cal. 3d 22, 593 P.2d 226, 154 Cal. Rptr. 529, cert. denied (1979), 444 U.S. 900, 62 L. Ed. 2d 136, 100 S. Ct. 209, held that appointed counsel was necessary for indigents named as defendants in paternity suits where the State appears on the mother’s or child’s behalf.
Flores v. Flores (Alas. 1979), 598 P.2d 893, held that indigents have a right to appointed counsel in a private not State, child-custody proceeding when the spouse is represented by a public legal aid unit. The court based its result on the due process clause of the Alaska Constitution and rejected the civil/criminal distinction as a guide to what due process requires.
Department of Public Welfare v. J. K. B. (1979),-Mass.-, 393 N.E.2d 406, held that indigent parents are entitled to appointed counsel in proceedings brought to dispense with parental consent to adoption. The court relied on due process and analogized the loss of a child to loss of freedom.
In re E. B. (1972), 30 N.Y.2d 352, 285 N.E.2d 288, held that due process requires the appointment of counsel in proceedings brought to terminate parental rights.
Davis v. Page (5th Cir. 1980), 618 F.2d 374, rejected the case-by-case approach of Cleaver v. Wilcox (9th Cir. 1974), 499 F.2d 940, holding that the fourteenth amendment requires the appointment of counsel for all indigent parents in child dependency hearings.
In all of the cases, the indigents deemed to have a right to appointed counsel were defendants or respondents in proceedings where impairment of their important interests were sought. Here, petitioners seek affirmative action in support of their rights and to protect them from allegedly oppressive conditions of their incarceration. Important constitutional rights could be involved, because a deliberate indifference upon the part of prison officials to an inmate’s serious illness or injury could cause his incarceration to be cruel and unusual punishment in violation of the eighth amendment. (Estelle v. Gamble (1976), 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285.) The failure of prison personnel to protect a prisoner from other inmates could become so gross as to also constitute a similar eighth amendment violation.
No United States Supreme Court, United States Circuit Court of Appeals, or Illinois court of review case has been called to our attention which holds an indigent person to have a constitutional right to have counsel appointed where, as here, affirmative action in support of the indigent’s rights is sought rather than a defense to actions seeking to diminish those rights.
In a series of cases beginning with Ex Parte Hull (1941), 312 U.S. 546, 85 L. Ed. 1034, 61 S. Ct. 640, the United States Supreme Court has developed a theory that prisoners, including those who are indigent, have a constitutional right of access to the courts to take affirmative action in support of their important interests. Hull invalidated a prison regulation that required prisoners to submit their habeas corpus petitions to prison authorities, who in their discretion could refuse to file them in court. In Johnson v. Avery (1969), 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747, the court held that in the absence of alternative means of legal assistance, prisons could not prohibit jailhouse lawyers from helping other inmates in drawing up habeas corpus petitions.
In the foregoing cases, the inmates sought access to the courts in order to seek issuance of writs of habeas corpus bringing about their release from custody. In Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, the court held inmates to have a right to access to the courts to obtain relief from the incidence of their confinement under certain provisions of the Federal Civil Rights Act (42 U.S.C. §1983 (1976)). The relief sought here is of that type. However, even in Wolff the decision only prevented the authorities from hindering the prisoners access to the courts. None of them required that affirmative steps be taken to aid the prisoners, although waiver of docketing fees (Smith v. Bennett (1961), 365 U.S. 708, 6 L. Ed. 2d 39, 81 S. Ct. 895), and transcript costs (Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585) have been required.
The seed for a requirement that prisoners receive help arose from Younger v. Gilmore (1971), 404 U.S. 15, 30 L. Ed. 2d 142, 92 S. Ct. 250, where the court relied on Avery to affirm, in a per curiam decision, Gilmore v. Lynch (N. D. Cal. 1970), 319 F. Supp. 105. The district court ordered the Department of Corrections in California to expand its prison law libraries or provide other means of legal assistance. Both the right of access and equal protection formed the basis for the decision. 319 F. Supp. 105, 109.
The issues of Gilmore were thoroughly discussed in the subsequent case of Bounds v. Smith (1977), 430 U.S. 817, 828, 52 L. Ed. 2d 72, 83, 97 S. Ct. 1491, 1998, where, again a Federal District Court had required a State to provide its indigent prisoners with either (1) an adequate law library, or (2) adequate assistance of “persons trained in the law” to enable them to prepare habeas corpus petitions and civil rights complaints. The dissent of Mr. Justice Stewart joined in by Mr. Chief Justice Burger questioned the effectiveness of law libraries as an aid to most prisoners who were relatively unsophisticated. The opinion seemed to focus upon the problem of aiding prisoners in the preparation of initial pleadings for filing and did not discuss the prosecution of the cases thereafter.
Some writers and some Federal District Courts (Glover v. Johnson (E.D. Mich. 1979), 478 F. Supp. 1075; Wetmore v. Fields (W.D. Wis. 1978), 458 F. Supp. 1131; Thibadoux v. LaVallee (W.D. N.Y. 1976), 411F. Supp. 862) have also questioned whether indigent prisoners can adequately proceed in these types of cases without counsel and have indicated that such prisoners have a Federal constitutional right to appointed counsel in such cases. We share this concern, but we also recognize the substantial problems that would arise if we should hold that such indigent prisoner had a constitutional right to appointed counsel in each case of this nature. In view of the limited precedent in support of such a ruling, we decline to so hold.
Because of the consequences of a ruling requiring appointment of counsel as a constitutional right, we conclude that such a holding, if it is to be made, should only come from the State’s highest court.
Any estimate as to the number of lawyers that would be necessary to furnish counsel for prisoners in these cases is inherently conjectural. Certainly in many counties of the State having penal institutions neither the public defender service (if that entity could be appointed) nor the private bar would be adequate to meet the requirement. The task of affirmatively presenting matters on behalf of prisoners, as involved here, could well be more difficult than defending persons charged with crime or attempting to overcome their convictions. The theories of relief are uncertain and the marshaling of evidence is often difficult. The frustrations of public defenders faced with a substantial number of similar cases may have been the cause of much of the problem in the trial court here. Regardless of whether public defenders or private counsel were appointed, the expense of providing counsel would fall upon the counties where the institutions are located under present law. If appointment of counsel were required, an orderly procedure for the handling of the appointments would be helpful. (See Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610 (1979).) Implementation of a decision to appoint counsel would be most desirable.
Only the supreme court has the administrative and rule-making power to provide for an orderly system for appointment of counsel and for providing for a system that would apportion the burden of providing counsel evenly throughout the State. Only a decision by that court would stimulate any implementing legislation necessary.
Under Federal procedure there is a provision whereby the district court must appoint counsel for an indigent prisoner in habeas corpus cases after the court has examined the prisoner’s petition and determined that an evidentiary hearing will be required. (28 U.S.C.A. foil. §2254 Rule 8(c) (1977).) Although the instant cases involve request for habeas corpus relief, they more clearly resemble cases for violations of civil rights under section. 1983 of the Civil Rights Act (42 U.S.C. 1983 (1976)). There is no provision for appointment of counsel for indigents in the Federal courts in cases of that nature.
No Illinois case has held the Illinois statutory provisions for appointment of counsel for indigents to be applicable to cases of this nature. The mandate to the State Appellate Defender to represent indigents “on appeal in criminal cases” (Ill. Rev. Stat. 1979, ch. 38, par. 208 — 10(a)) is clearly not applicable to cases of this nature. The general mandate to the county public defender is not as clear. With reference to that officer’s appearance in other than juvenile cases it states:
“The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 34, par. 5604.)
In People ex rel. Ross v. Ragen (1945), 391 Ill. 419, 63 N.E.2d 874, the supreme court denied the request of a petitioner before it on an original petition for writ of habeas corpus, for appointed counsel. Legislation similar to that above with reference to the duties of the public defender was then in existence. Without referring specifically to that legislation, the court stated:
“By every constitutional and statutory provision, the right and duty of the court to appoint counsel for indigent persons is limited to criminal prosecutions in which the accused is charged with crime.” (391 Ill. 419, 422, 63 N.E.2d 874, 875.)
In People ex rel. McGuire v. Sympson (1974), 20 Ill. App. 3d 139, 312 N.E.2d 854, in the face of the present provision for the duties of the public defender but without referring to it, the appellate court upheld a trial court’s denial for appointment of counsel for an indigent habeas corpus petitioner seeking discharge from imprisonment. Ross was cited.
The Attorney General has recently issued an opinion holding that appointment of counsel for indigent petitioners in cases of the nature before us is neither required nor proper. (Ill. Att’y Gen. Op. 80-026.) It cites the existing statutory designation of duties of the county public defender and then points out that the various specific references to appointment of the public defender or appellate defender made no mention of appointment in cases of this nature. (Ill. Rev. Stat., 1979 Supp., ch. 38, par. 113 — 3; 111. Rev. Stat. 1979, ch. 38, pars. 121 — 13, 122 — 1, 122 — 4.) Ross and McGuire were also cited.
The motion of the appellate defender to withdraw is allowed.
As we subsequently explain, we also hold petitioners to be entitled to reversal of the orders appealed and remandment to the circuit court. Accordingly, we need not give them an opportunity to obtain other counsel or to file pro se briefs.
The complaint. filed by Tedder was drafted pro se. Appointed counsel made no amendments to it. In reviewing the dismissal of a prisoner’s pro se complaint for failure to state a cause of action, the inmate’s “inartfully pleaded” allegations should be viewed under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner (1972), 404 U.S. 519, 520, 30 L. Ed. 2d 652, 654, 92 S. Ct. 594, 596; Estelle v. Gamble (1976), 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285.
As we have stated, deliberate indifference to a prisoner’s serious medical needs constitutes cruel and unusual punishment. (Estelle.) Tedder sought relief to obtain medical aid by way of mandamus. While determination of whether an inmate needs medical attention may be a discretionary matter and officials’ actions in regard to discretionary matters do not ordinarily give rise to a right to mandamus, that writ has been ordered to be proper when an exercise of governmental power is extremely arbitrary and results in a manifest injustice. (Illinois State Board of Dental Examiners v. People ex rel. Cooper (1887), 123 Ill. 227,13 N.E. 201; Kermeen v. City of Peoria (1978), 65 Ill. App. 3d 969, 382 N.E.2d 1374; People ex rel. Shell Oil Co. v. City of Chicago (1972), 9 Ill. App. 3d 242, 292 N.E.2d 84.) In State ex rel. Thomas v. State (1972), 55 Wis. 2d 343, 198 N.W.2d 675, mandamus was held to lie to compel prison authorities to furnish medical attention when prison authorities’ discretion in determining whether to furnish such treatment had been exercised arbitrarily or abusively.
Determination of whether prison authorities have abused their discretion in such a way as to work a substantial injustice by refusing medical treatment to an inmate complaining of nervousness and insomnia would be a difficult task for a court. But we cannot determine that the situation alleged by Tedder could not give rise to a cause of action in mandamus if properly pleaded. Moreover, regardless of the limitations of such a statutory procedure as mandamus, if a prison official deprives a prisoner of constitutional rights, the prisoner is entitled to a procedure to alleviate that condition. Federal legislation provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C.A. §1983 (1976).
The remedy under section 1983 above is more plenary than that existing under traditional special common law or statutory proceedings. State courts in some States have held that they have jurisdiction of such cases. (Williams v. Horvath (1976), 16 Cal. 3d 834,548 P.2d 1125, 129 Cal. Rptr. 453; Brown v. Pitchess (1975), 13 Cal. 3d 518, 119 Cal. Rptr. 204, 531 P.2d 772; see also Bennun v. Board of Governors (D. N.J. 1976), 413 F. Supp. 1274; Luker v. Nelson (N.D. Ill. 1972), 341 F. Supp. 111, 116.) In Luker, the opinion stated that the notice provision of the Illinois legislation concerning tort actions against governmental units was not applicable to section 1983 actions brought in either State or Federal courts. Other decisions have indicated that State courts are without jurisdiction of such cases. (Chamberlain v. Brown (1969), 223 Tenn. 25, 442 S.W.2d 248; Beauregard v. Wingard (S.D. Cal. 1964), 230 F. Supp. 167.) Whether Illinois courts have jurisdiction of such cases is not before us at this time.
The record indicates that the public defender was burdened with a substantial number of similar cases at the time the order dismissing Tedder’s complaint was entered. Considering the confusion then existing, the apparent belief of the court and trial counsel that no cause of action could be shown entitling a prisoner to relief for prison authorities’ failure to furnish medical care and the “less stringent” pleading standards for prisoners’ complaints (Haines), we conclude that Tedder is entitled to amend his complaint if he can, in good faith, plead a cause of action. We reverse and remand for that purpose.
The petition filed by Bass indicates less chance of being meritorious than that of Tedder. Prison officials have wide discretion in deciding upon transfers in the penal system. (Montanye v. Haymes (1976), 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543; Meachum v. Fano (1976), 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532.) However, confinement in a dangerously hostile place could be so dangerous to the inmate as to violate his eighth amendment protection against cruel and unusual punishment and require some action on the part of prison officials, not necessarily transfer, to protect the inmate. As Bass’ petition was dismissed for failure to timely file in the face of his claim that equipment breakdown at the prison prevented him from timely filing, we also reverse the judgment dismissing his petition and remand to allow him to amend if he can, in good faith, stating a cause of action.
We have held that indigent prisoners bringing suits of the nature here have no right to appointed counsel either at trial or on appeal. However, if they show that they have been deprived of both access to an adequate law library and the assistance of “persons trained in the law,” Bounds v. Smith (1977), 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491, would require that counsel be appointed. Under our ruling here, that counsel would have to come from the .private bar.
Motion of State Appellate Defender to withdraw allowed; reversed and remanded.
MILLS, J., concurs.