JAMES C. CARUTH, Plaintiff-Appellant, v. TAMELA QUINLEY et al., Defendants-Appellees, 333 Ill. App. 3d 94

JUSTICE STEIGMANN delivered the opinion of the court: In May 2000, plaintiff, James C. Caruth, an inmate at Tamms Correctional Center (Tamms), filed a petition for a writ of mandamus, in which he (1) alleged that disciplinary proceedings at Pontiac Correctional Center (Pontiac) were held in violation of the applicable Department of Corrections (DOC) administrative guidelines, and (2) requested that the trial court compel defendants, Tamela Quinley, chairman of the DOC adjustment committee, and Jerry D.

Gilmore, chief administrative officer at Pontiac, to expunge his disciplinary record and restore to him certain benefits and credits that had been revoked as a result of those proceedings. Defendants filed a motion to dismiss plaintiff’s petition, and in September 2000, the trial court granted that motion following a hearing conducted by telephone conference call with plaintiffs counsel and defendants’ attorney. The court later dismissed plaintiffs motion for reconsideration. Plaintiff appeals, arguing that the trial court abused its discretion by dismissing his mandamus petition. We affirm. I.

BACKGROUND The record shows that following adjustment committee hearings under Title 20,

section 504.80, of the Illinois Administrative Code (Administrative Code) (20 Ill. Adm. Code § 504.80 (Conway Greene CD-ROM June 2002)), plaintiff was found guilty of disciplinary infractions as follows: one in 1996, seven in 1997, and one in 1998. In May 2000, plaintiff filed his amended mandamus petition, alleging that the disciplinary proceedings at Pontiac had not been held in conformity with applicable DOC administrative guidelines. Specifically, he alleged that he had been denied his right to due process (1) when the adjustment committee did not call his witnesses or accept his “exonerative evidence,” and (2) in that the adjustment committee’s

summary reports of his disciplinary proceedings provided insufficient statements of the bases for finding him guilty. As relief, plaintiff requested that defendants be compelled to do the following: (1) expunge his disciplinary records; (2) award him segregation credit totaling 19 months and 15 days; (3) award him 31 months of C-grade credits served; and (4) reinstate three months of good-time credit. Later that month, the trial court sua sponte appointed the Livingston County public defender to represent plaintiff. In July 2000, defendants filed a motion to dismiss plaintiffs petition, pursuant to

section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2— 619(a)(9) (West 2000)). A docket entry shows that in September 2000, the court conducted a hearing by telephone conference call with plaintiffs counsel and defendants’ attorney, after which the court granted the defendants’ motion to dismiss and vacated the public defender’s appointment. Neither a transcript nor a bystander’s report of that hearing is included in the record.

The trial court’s September 1, 2000, docket entry states, in pertinent part, as follows: “[T]he court finds that the [plaintiff] has not exhausted his administrative remedies prior to filing his mandamus action; the court further finds that the record does not support the contention of the plaintiff that there was a failure to call witnesses as argued; the court further finds that the [plaintiff] failed to request witnesses as required of him; the court finds that the [plaintiff] has not established a clear right to the relief that he seeks and that, therefore, mandamus does not he.” In October 2000, plaintiff filed a motion for reconsideration, which the trial court denied.

This appeal followed. II. ANALYSIS Plaintiff argues that the trial court abused its discretion by dismissing his mandamus petition. Specifically, he contends that (1) the trial court erroneously found that he (

a) had not exhausted his administrative remedies and (

b) had not properly requested witnesses; and (2) his due process rights were violated by the adjustment committee’s failure to call his witnesses and state the bases for its findings of guilt. Defendants reply that the trial court properly dismissed plaintiffs petition because (1) plaintiff failed to show a clear right to the relief requested, (2) his petition was untimely, and (3) he failed to exhaust administrative remedies. We agree with defendants. We review de novo the granting of a

section 2 — 619 motion to dismiss. Nowak v. St. Rita High School, 197 Ill. 2d 381, 389, 757 N.E.2d 471, 477 (2001). The dissent contends that the State’s motion to dismiss should have been brought under

section 2 — 615 of the Code, not

section 2 — 619(a)(9), because a

section 2 — 615 motion challenges a complaint for failing to state a cause of action, while a

section 2 — 619(a)(9) motion admits the legal sufficiency of a complaint but asserts that it is barred by some affirmative matter. 735 ILCS 5/2 — 615, 2 — 619(a)(9) (West 2000). Because defendants’ motion to dismiss here asserted that the complaint failed to state a cause of action, the dissent is correct that the defendants’ motion came under the wrong section. “Nevertheless, a dismissal pursuant to

section 2 — 619 may be affirmed on any grounds which are called for by the record regardless of whether the circuit court relied on those grounds or whether the circuit court’s reasoning was correct.” Wright v. City of Danville, 174 Ill. 2d 391, 399, 675 N.E.2d 110, 115 (1996). “Mandamus relief is an extraordinary remedy to enforce, as a matter of right, the 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 demonstrate 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 judgment or discretion for the official’s judgment or discretion. Mandamus relief, therefore, is not appropriate to regulate a course of official conduct or to enforce the performance of official duties generally.” Hatch v. Szymanski, 325 Ill. App. 3d 736, 739, 759 N.E.2d 585, 588 (2001). A.

Plaintiffs Right to Relief Plaintiff contends that the trial court abused its discretion by dismissing his mandamus petition because defendants violated DOC administrative guidelines and his due process rights when, in disciplinary proceedings, they (1) failed to call his witnesses and prevented him from introducing documentary evidence; and (2) failed to state the evidence supporting the adjustment committee’s guilty findings.

According to plaintiff, these alleged violations of DOC rules and the United States Constitution entitle him to expungement of his disciplinary records and restoration of various benefits and credits.

We disagree. “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.” Durbin v. Gilmore, 307 Ill. App. 3d 337, 343, 718 N.E.2d 292, 297 (1999).

DOC rules provide that prior to a hearing before the adjustment committee, an inmate may make a written request that witnesses be interviewed. The inmate must set out his request in the space provided on the disciplinary report, and he must include an explanation of what the witnesses would state. 20 Ill. Adm. Code § 504.80(f)(2) (Conway Greene CD-ROM June 2002).

Section 504.80(h)(3) of the Administrative Code further provides that inmates shall be provided with a means for submitting “witness request slips” (20 Ill. Adm. Code § 504.80(h)(3) (Conway Greene CD-ROM June 2002)). At a hearing before the adjustment committee, the inmate may make any relevant statement or produce any relevant documents in his defense (20 Ill. Adm. Code § 504.80(f)(1) (Conway Greene CD-ROM June 2002)). “The [a]djustment [c]ommittee 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). However, 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 the witness’s testimony would be irrelevant, 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)). The record before us includes adjustment committee

summary reports memorializing each of the plaintiffs disciplinary hearings. Those reports show that in two of the nine disciplinary hearings at issue, plaintiff requested witnesses (the November 28, 1997, and January 14, 1998, hearings). The report of the November 28, 1997, hearing indicates that plaintiffs witnesses were called, and the report of the January 14, 1998, hearing shows that plaintiffs witness was not called because plaintiff had failed to provide specific information regarding what the witness could testify to.

The record also contains photocopies of handwritten requests for witnesses relating to each of plaintiff s disciplinary proceedings, but we have no way of knowing whether those requests were timely submitted or to whom they were submitted. The

summary reports show that no witnesses were requested by plaintiff. In addition, the record contains no evidence supporting plaintiffs claim that he sought to introduce documentary evidence but was denied that opportunity. (Notably absent from the record is any evidence that plaintiff filed a grievance, pursuant to

section 3 — 8—8 of the Unified Code of Corrections (730 ILCS 5/3 — 8—8 (West 2000)) or that Gilmore agreed to enter an expungement order, facts plaintiff alleges for the first time on appeal.) This record does not clearly show plaintiffs right to expungement of his disciplinary record or a duty on defendants’ part to take such action. Nor does the record show that defendants failed to comply with DOC guidelines or violated plaintiff’s constitutional rights. Plaintiffs contention that the adjustment committee failed to state the bases for its guilty findings is belied by the record. On each

summary report, a reason for the adjustment committee’s finding of guilt is stated. Moreover, pursuant to DOC guidelines, the decision not to interview an inmate’s witnesses is a matter resting in the discretion of the adjustment committee. Mandamus does not afford a means to challenge or reverse an official’s discretionary acts. See 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 discretion”); Hatch, 325 Ill.

App. 3d at 739, 759 N.E.2d at 588 (“Mandamus relief *** is not appropriate to regulate a course of official conduct or to enforce the performance of official duties generally”). We therefore conclude that plaintiff failed to state a clear right to the desired relief because the affirmative matters raised by defendants, namely, that plaintiff failed to exhaust his administrative remedies and that his petition was time-barred, defeat plaintiffs claims.

Although we agree with all of defendants’ additional arguments in support of the trial court’s judgment, because we conclude that the trial court properly dismissed plaintiffs petition for failing to state a clear right to relief, we need not address the other grounds upon which the court’s order could be affirmed. Nevertheless, we are compelled to note that plaintiff filed his mandamus petition in April 2000 complaining of defendants’ conduct at hearings in 1996, 1997, and January 1998. A complaint for mandamus must be brought within six months unless there is a reasonable explanation for delay. Richter v.

Collinsville Township, 97 Ill. App. 3d 801, 804, 423 N.E.2d 549, 552 (1981). Plaintiff offers no explanation for the untimeliness of his petition nor does our review of the record reveal one. III. CONCLUSION For the reasons stated, we affirm the trial court’s judgment. Affirmed. MYERSCOUGH, J., concurs.