JACK NEWSOME, Plaintiff-Appellant, v. THE PRISONER REVIEW BOARD et al., Defendants-Appellees, 333 Ill. App. 3d 917

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court: Plaintiff, Jack Newsome, an inmate of Stateville Correctional Center (Stateville), appeals pro se from the order of the circuit court of Livingston County dismissing his unamended pro se complaint for mandamus against defendants, “The Prisoner Review Board; Dwayne A. Clark; Leora Harry; Donald N. Snyder; Mark Nelson; Sergeant L. Gregory; D. Knight; Officer T. Ruffino; and Does 1 through 100.” The only parties to this appeal are plaintiff and defendants, the Prisoner Review Board and Snyder.

The issues on appeal are whether (1) the complaint was properly dismissed for failure to state a cause of action in mandamus and (2) plaintiff was provided effective assistance by court-appointed counsel. We affirm. We consider de novo the issue of whether the complaint stated a cause of action for mandamus. See Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51 (1993).

Mandamus is a civil proceeding governed by sections 14 — 101 through 14 — 109 of the Code of Civil Procedure (735 ILCS 5/14 — 101 through 14 — 109 (West 2000)), and it lies to compel an action by an officer that is purely ministerial and not discretionary (Dennis E. v. O'Malley, 256 Ill. App. 3d 334, 341, 628 N.E.2d 362, 368 (1993)). In determining whether the allegations of the complaint are sufficient to state a cause of action, we take all well-pleaded facts as true and view them in the light most favorable to plaintiff. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584, 588 (1996).

On May 23, 2000, plaintiff filed the pro se complaint for mandamus requesting a new hearing by the administrative review board or, in the alternative, reinstatement of his good-conduct credit and grade. This action arose out of an incident at Stateville on July 27, 1998. Correctional officer Ruffino wrote a disciplinary report against plaintiff for fading to stay with the group Ruffino was escorting and for striking Ruffino. Plaintiff was charged with disobeying a direct order, insolence, intimidation or threats, assault, and dangerous disturbance.

The following day, plaintiff submitted a request to the adjustment committee for (1) polygraph examinations of himself and Ruffino, (2) review of the relevant inmate movement sheets, mugshot book, and surveillance tape to identify three other inmates being escorted by Ruffino at the time of and who witnessed the incident, and (3) an interview of the food service supervisor with whom plaintiff claimed he stopped to discuss his dietary requirements. The adjustment committee, comprised of defendants Nelson, Gregory, and Knight, conducted its hearing on August 3, 1998.

At that hearing, plaintiff stated he had no desire to make a comment and orally requested a continuance. Plaintiff informed the adjustment committee that he did not know the names of the three inmate witnesses. The request for a continuance was denied. The adjustment committee found plaintiff guilty of the charges on the basis that plaintiff admitted being present at the incident, assistant warden Springborn saw plaintiff strike and assault Ruffino, and Ruffino’s report of the incident was accurate. In its

summary, the adjustment committee stated that the inmate witnesses were not called because doing so would undermine authority and jeopardize security, and Springborn witnessed the assault. The adjustment committee then revoked one year of plaintiff’s good-conduct credit, demoted him to C grade for one year, placed him in segregation for one year, and denied him commissary and audiovisual privileges for three months. Stateville chief administrative officer Dwayne Clark approved the decision.

On August 9, 1998, plaintiff 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. Plaintiff argued that his request to review the relevant inmate movement sheets and mugshot book to discover the identities of the three inmate witnesses was not unreasonable. On December 17, 1998, the administrative review board, chaired by defendant Leora Harry, conducted a hearing on plaintiffs grievance.

At the hearing, plaintiff described the incident as he felt it occurred and stated that Springborn was not present during the entire incident and could have no knowledge that Ruffino had shoved plaintiff prior to the confrontation. Plaintiff told the administrative review board that he was justified in assaulting Ruffino. The administrative review board concluded it was reasonably satisfied that plaintiff committed the infraction and recommended denying the grievance. Defendant Donald Snyder, the Director of the Department of Corrections (DOC), concurred.

In his mandamus complaint, plaintiff alleged that Ruffino violated his rights to due process by omitting the names of the three inmate witnesses from his report, the adjustment committee violated his right to due process by not correcting Ruffino’s omissions or not interviewing the three inmate witnesses, and the adjustment committee and the administrative review board knew that the request to interview the three inmate witnesses was within the purview of DOC rules. A mandamus action is not an appropriate means for seeking judicial review of an administrative proceeding.

To withstand a challenge to the legal sufficiency of a complaint seeking mandamus, the complaint must allege facts establishing a clear right of the plaintiff to the desired relief, a clear duty of defendant to act, a clear authority in defendant to comply with the terms of the writ, and the activity sought to be compelled is ministerial and not discretionary. Dennis E., 256 Ill. App. 3d at 340-41, 628 N.E.2d at 367-68. In Durbin v. Gilmore, 307 Ill.

App. 3d 337, 343, 718 N.E.2d 292, 297 (1999), this court stated: “Due process requires only that the inmate receive (1) advance written notice of the disciplinary charges at least 24 hours prior to 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, 564-66, 41 L. Ed. 2d 935, 956, 94 S.

Ct. 2963, 2979 (1974).” DOC rules provide that a committed person, upon written request and for good cause shown, may be granted additional time to prepare a defense (20 Ill. Adm. Code § 504.80(e) (Conway Greene CD-ROM June 2002)) and, prior to hearing, may make a written request on the space provided in the disciplinary report that witnesses be interviewed, with inclusion of an explanation of what the witnesses would state (20 Ill. Adm. Code § 504.80(f)(2) (Conway Greene CD-ROM June 2002)).

If the 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). The adjustment committee, or its hearing officer, may interview witnesses and prepare or review a

summary of the testimony prior to or subsequent to the hearing. 20 Ill. Adm. Code § 504.80(h)(1) (Conway Greene CD-ROM June 2002). The committed person does not have the right to confront or cross-examine witnesses but may submit questions to be asked of the witness prior to the hearing. 20 Ill. Adm. Code § 504.80(h)(2) (Conway Greene CD-ROM June 2002). The adjustment committee may disapprove witness requests not received prior to the hearing (20 Ill. Adm.

Code § 504.80(h)(3) (Conway Greene CD-ROM June 2002)) and may deny witness requests if their testimony would be irrelevant or cumulative or would jeopardize the safety or disrupt the security of the facility, among other reasons (20 Ill. Adm. Code § 504.80(h)(4) (Conway Greene CD-ROM June 2002)). In this case, plaintiff did not make a proper written request for the three inmate witnesses to be interviewed, did not identify what their testimony would be or identify them, and made an untimely oral motion for continuance, again failing to show good cause by identifying the inmates or the need for their testimony.

Not until the grievance proceeding did plaintiff disclose his belief that the three other inmates “may have” corroborated his version of the incident. However, because their testimony would have been cumulative of his own testimony about the incident, the adjustment committee would have had the discretion not to interview those witnesses on that basis had the adjustment committee known of the nature of their testimony in advance of the hearing. The fact that plaintiff simply declined to present his version of the incident to the adjustment committee did not remove that discretion from the adjustment committee.

The adjustment committee was not apprised that the statements of the three inmates would contradict the statement of Springborn. Moreover, plaintiff did not allege any facts that would bring into question the adjustment committee’s determination not to interview those witnesses because to do so would undermine authority and jeopardize the security of the facility. Because the decision not to interview the three inmate witnesses was a matter resting in the discretion of the adjustment committee, the complaint for mandamus was properly dismissed.

The remaining issue concerns the appropriate level of representation accorded plaintiff in the circuit court. After plaintiff filed his complaint on May 23, 2000, the trial court, at plaintiffs request, appointed the Livingston County public defender, David G. Ahlemeyer, to represent plaintiff. Defendants, Prisoner Review Board and Snyder, filed a motion to dismiss. The record does not disclose service of summons on or acquisition of personal jurisdiction of any other defendants.

A docket entry discloses that the trial court conducted a telephone conference on the motion to dismiss with Ahlemeyer and the assistant Attorney General on October 30, 2000. Following the telephone conference, the trial court granted the motion to dismiss and vacated Ahlemeyer’s appointment. Ahlemeyer did not amend plaintiffs pro se complaint or file any reply or legal memorandum in response to the motion to dismiss.

In his pro se petition for rehearing, plaintiff stated that Ahlemeyer’s contact with him was limited to two letters and that Ahlemeyer ignored his repeated requests for a meeting to discuss the issues and to amend the complaint. Plaintiff acknowledged in his petition for rehearing that Ahlemeyer wrote to him on August 15, 2000, explaining his intended argument in opposition to the motion to dismiss.

Ahlemeyer sent plaintiff another letter dated September 12, 2000, assuring plaintiff that, despite the apprehensions plaintiff expressed in his correspondence, the matters of which plaintiff complained would be addressed in this case. Copies of the correspondence between plaintiff and Ahlemeyer were attached to the petition for rehearing. The procedure employed in this case does not require reversing the trial court’s dismissal of the petition for mandamus. The trial court may direct that arguments on motions be presented in a telephone conference. 145 Ill. 2d R. 185.

This court considers the propriety of dismissing the petition de novo. Howell v. Snyder, 326 Ill. App. 3d 450, 453, 760 N.E.2d 1009, 1011 (2001). In Tedder v. Fairman, 92 Ill. 2d 216, 224-25, 441 N.E.2d 311, 314-15 (1982), the supreme court found that indigent prisoners have no constitutional right to appointed counsel in a civil suit either at trial or on appeal. However, the court did recognize a constitutional mandate of “meaningful access” to the courts. Tedder, 92 Ill. 2d at 225, 441 N.E.2d at 314.

Although no legislative mandate requires the appointment of such counsel, the trial court has the discretion to appoint an attorney. Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 315. The supreme court stated: “[0]nce a circuit court, in its discretion, has determined that appointment of the public defender is appropriate to represent an indigent prisoner, limited to a grievance relating to the conditions of his confinement, then that assistant public defender is expected to exercise due diligence in proceeding with the assigned case.” Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 315-16.

Tedder is distinguishable from this case. In Tedder, the trial court granted plaintiff 14 days to amend the petition and no amended petition was filed. Tedder, 92 Ill. 2d at 220, 441 N.E.2d at 312. The supreme court found that “[appointed counsel failed to amend the pleading in the face of the circuit court[’s] statements that” the petition was inadequate. Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 316. Also distinguishable from Tedder is this court’s decision in Marrero v. Peters, 229 Ill. App. 3d 752, 593 N.E.2d 1166 (1992).

Marrero also involved an inmate filing a complaint for mandamus regarding a grievance with prison disciplinary proceedings. Marrero, 229 Ill. App. 3d at 753, 593 N.E.2d at 1167. The trial court appointed the Livingston County public defender to represent him; the State filed a motion to dismiss; and the trial court conducted a telephone conference that resulted in the dismissal of the complaint. Marrero, 229 Ill. App. 3d at 754, 593 N.E.2d at 1167.

On appeal, the plaintiff argued that he was denied effective assistance of counsel because the public defender never contacted him, never investigated the allegations found in his complaint, never filed an answer to the State’s motion to dismiss or informed him that the State had filed a motion to dismiss, and never appeared in court to argue his case. This court held that “the supreme court’s reference to due diligence in Tedder is an admonition to counsel to go forward in good faith.” Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168.

In Marrero, we further stated, “[w]hile we generally expect counsel to consult with a client, we cannot conclude, given the circumstances of this case, the public defender’s performance fell below the due diligence standard.” Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168. In Marrero, this court found that the plaintiff was adequately represented by counsel in the trial court. Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168. The circuit court in Marrero found that plaintiff “ ‘can adequately present the issues in question should there be an appeal of this ruling’ ” (Marrero, 229 Ill.

App. 3d at 755, 593 N.E.2d at 1168), and this court decided that the plaintiff in that case “prepared a clear and understandable complaint seeking mandamus” (Marrero, 229 Ill. App. 3d at 755, 593 N.E.2d at 1168). Marrero stands for the proposition that, if plaintiffs pro se petition is adequate to disclose the nature of plaintiffs claim, appointed counsel need not amend the petition. See 188 Ill. 2d R. 604(d) (attorney appointed on a defendant’s motion to withdraw the guilty plea or reconsider the sentence must certify that counsel “has made any amendments to the motion necessary for adequate presentation”).

Moreover, plaintiff has suggested no way that appointed counsel in this case could have amended the complaint so as to state a cause of action for mandamus under the facts of this case. The judgment of the circuit court of Livingston County is affirmed. Affirmed. STEIGMANN, J., concurs.