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 litigation. At least the defendants in this case entered their appearance and filed a motion to dismiss, and plaintiff requested that the trial court appoint counsel for him. Cf. Mason v. Snyder, 332 Ill. App. 3d 834 (2002) (inmate complaint for mandamus dismissed sua sponte before service of process or entry of appearance); cf. Caruth v. Quinley, 333 Ill. App. 3d 94 (2002) (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 that defendants filed here, admits the legal sufficiency of plaintiffs 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” that defeats the claim; simply negating the allegations of the plaintiffs 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.” 333 Ill. App. 3d at 921. 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 deliberate intention of provoking a fight.” 333 Ill. App. 3d at 919.
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.” 333 Ill. App. 3d at 921. The majority is apparently referring to plaintiffs 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 reasonably 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 [plaintiffs] own testimony.” 333 Ill. App. 3d at 921. How could the majority know what the testimony of these three unidentified witnesses would be? In considering plaintiffs grievance, the adjustment committee accepted the testimony of Springborn over the testimony of plaintiff. The testimony of other witnesses corroborating 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 interviews, 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 MBH 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.
Plaintiffs allegations may prove to be unfounded but we should follow the same rules in deciding this case that 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.