Fillmore v. Taylor

2017 IL App (4th) 160309, 80 N.E.3d 835

• Court: Appellate Court of Illinois
• Decided: July 12, 2017
• Docket: 4-16-0309
• Status: Unpublished

Opinion

FILED July 12, 2017 2017 IL App (4th) 160309 Carla Bender 4th District Appellate NO. 4-16-0309 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

AARON FILLMORE, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County GLADYSE C. TAYLOR, Director of Corrections; ) No. 15MR915 LEIF M. McCARTHY, Chairperson of the Adjustment ) Committee; and ELDON L. COOPER, Member of the ) Honorable ) Rudolph M. Braud, Jr., Adjustment Committee. ) Judge Presiding. Defendants-Appellees.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.

OPINION ¶1 Plaintiff, Aaron Fillmore, who is in the custody of the Illinois Department of

Corrections (Department), sued three officers of the Department, Gladyse C. Taylor, Leif M.

McCarthy, and Eldon L. Cooper, for failing to follow mandatory legal procedures before

imposing discipline upon him for violating prison rules. He sought a writ of mandamus,

declaratory relief, and a common-law writ of certiorari. The trial court granted a motion by

defendants to dismiss the complaint for failure to state a cause of action. See 735 ILCS 5/2-615

(West 2016). Plaintiff appeals.

¶2 In our de novo review, we agree with the trial court that the count for declaratory

judgment, count II, is legally insufficient in its entirety. We disagree, however, that the remaining two counts are legally insufficient in their entirety. Therefore, we affirm the trial

court’s judgment in part and reverse it in part, and we remand this case for further proceedings.

¶3 I. BACKGROUND

¶4 In his complaint, which he filed on September 14, 2015, plaintiff alleged

substantially as follows.

¶5 A. The Parties

¶6 Plaintiff is an inmate at Lawrence Correctional Center, in Sumner, Illinois.

¶7 Gladyse C. Taylor is the Department’s director.

¶8 Leif M. McCarthy is the chairperson of the adjustment committee at Lawrence

Correctional Center, the committee that hears and decides inmate disciplinary reports.

¶9 Eldon L. Cooper is a member of the adjustment committee.

¶ 10 B. The Inmate Disciplinary Report Issued to Plaintiff

¶ 11 On December 16, 2014, an inmate disciplinary report was served on plaintiff. In

the report, a correctional officer named “J. Harper” accused plaintiff of two offenses as defined

by the Department’s regulations: security group threat or unauthorized organizational activity

(20 Ill. Adm. Code 504.Appendix A (2003) (No. 205)) and intimidation or threats (id. (No.

206)). The report summarized the following evidence: (1) an “accumulation of incidents”

concerning plaintiff’s “involvement with the Latin Kings Security Threat Group,” including

statements of confidential informants, one of whom identified plaintiff as chairman of the Latin

King National Regional Crown Council; (2) handwritten notes, confiscated in a shakedown, in

which he discussed Latin King business and, in one note, expressed a desire to “kick *** down

-2- the steps” someone named Kevin, who had “told Springfield a lot” about the gang; and (3)

recorded telephone conversations, in which plaintiff discussed various Latin King members who

were in prison.

¶ 12 C. Witness Request

¶ 13 On December 16, 2014, plaintiff submitted to the adjustment committee a

document, handwritten by him, in which he requested the committee to review the “[p]hone log

records” for May 5, September 29, and October 12, 2014. He stated that those phone records

would disprove the allegation, in the disciplinary report, that he made outgoing telephone calls

on those days. He also “request[ed] to be shown these alleged notes” by him, confiscated in the

shakedown. Finally, he made an “inmate witness request,” listing the imprisoned Latin Kings

whom he allegedly had discussed on the telephone. He wrote: “Each inmate will testify that

[plaintiff] did not order or direct any security threat group activity within [the Department] ever.”

¶ 14 D. Plaintiff’s Written Statement to the Committee

¶ 15 On December 19, 2014, in the hearing on the inmate disciplinary report, plaintiff

presented a handwritten statement to the committee. In this statement, he began by pleading not

guilty to the two charges. Then he made essentially four points.

¶ 16 First, he denied the allegation, in the disciplinary report, that he made “outside

telephone calls” on May 5, August 30, and September 29, 2014. He wrote that if only the

committee would review the “B-Wing telephone log records,” those records would show he did

not use the telephone on those dates.

-3- ¶ 17 Second, he insisted that if there were any recordings of his telephone calls, those

recordings, when played in their entirety, would debunk the claim that he had engaged in

unauthorized organizational activity.

¶ 18 Third, he denied writing the notes cited in the disciplinary report. He also denied

the notes had come from his cell, property, or person, or that there were any shakedown records

indicating as much. He pointed out that Harper was not a handwriting expert.

¶ 19 Fourth, he claimed the disciplinary report was untimely under the Department’s

regulations because it “was written beyond the [eight] days allowed after the commission of the

offense or discovery thereof.” 20 Ill. Adm. Code 504.30(f) (2003). He noted that the report listed

the dates of “February of 2014[;] May 5, 2014[;] July 15, 2014[;] August 30, 2014[;] September

of 2014[;] October 13, 2014[;] and December 7, 2014”—all of which preceded the issuance of

the report, on December 16, 2014, by more than eight days.

¶ 20 His written statement concluded with the following paragraph: “I request to see

the alleged confiscated ‘notes’ regarding the [December 16, 2014,] disciplinary report, and

request that my December 16, 2014[,] witness and document request be reviewed and considered

as exculpatory evidence by the Committee.”

¶ 21 E. The Disciplinary Hearing

¶ 22 Plaintiff alleges that, in the disciplinary hearing, which was held on December 19,

2014, the two members of the adjustment committee, McCarthy and Cooper, declined to show

him the notes in question and declined to personally review the notes, the telephone logs, or the

telephone recordings. As for plaintiff’s witness request, “Cooper stated that Jerry Harper (the

prison official who wrote the [disciplinary report] against plaintiff) [had] directed the Committee

-4- not to call any of plaintiff’s witnesses[;] thus, no witnesses would be called.” Also, Cooper told

plaintiff, in the disciplinary hearing, “that the Committee [had been] directed by higher[-]up

prison authorities to find plaintiff guilty and revoke a year [of] good conduct credits and impose

punitive segregation and other punitive sanctions for a year.” Upon receiving that news, plaintiff

“made a verbal objection” to the committee’s lack of impartiality, but McCarthy and Cooper

“refused to recuse themselves.” All this is according to plaintiff’s complaint.

¶ 23 F. The Final Summary Report

¶ 24 On January 3, 2015, the Department served upon plaintiff a “Final Summary

Report,” in which McCarthy and Cooper found plaintiff guilty of “Gang or Unauthorized

Organization Activity” and “Intimidation or Threats.” They recommended one year in “C grade,”

one year of segregation, revocation of one year of good-conduct credits, restriction for one year

to $15 per month, and one year of “Contact Visits Restriction.” The chief administrative officer,

Stephen B. Duncan, approved the recommendation.

¶ 25 G. Plaintiff’s Grievance

¶ 26 On January 5, 2015, plaintiff administratively appealed the discipline by filing a

grievance. He complained of the committee members’ refusal to produce and personally review

the notes, telephone logs, and telephone recordings; their refusal to recuse themselves; the

untimeliness of the disciplinary report; and other irregularities, which we will discuss in greater

detail later in this opinion.

¶ 27 On August 13, 2015, by adding her signature to a form, Taylor concurred with the

denial of plaintiff’s grievance. The Department “[found] no violation of the offender’s due

-5- process in accordance with [sections 504.30 and 504.80 (20 Ill. Adm. Code 504.30, 504.80

(2003))],” to quote the check-marked preprinted language of the form. The Department was

“reasonably satisfied the offender committed the offense cited in the report.”

¶ 28 II. ANALYSIS

¶ 29 A. The Request for Mandamus (Count I)

¶ 30 Because the motion for dismissal was pursuant to section 2-615 of the Code of

Civil Procedure (735 ILCS 5/2-615 (West 2016)), the question is whether the complaint states a

cause of action for mandamus, declaratory relief, or a common-law writ of certiorari: the three

forms of relief that plaintiff sought in the three counts of his complaint. See Johannesen v.

Eddins, 2011 IL App (2d) 110108, ¶ 27.

¶ 31 We answer that question de novo, taking the well-pleaded facts or specific factual

allegations of the complaint to be true and disregarding any conclusory allegations unsupported

by well-pleaded facts. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 26; Primax

Recoveries, Inc. v. Atherton, 365 Ill. App. 3d 1007, 1010 (2006). Not only will we assume the

well-pleaded facts in the complaint to be true, but we will regard those facts in the light most

favorable to plaintiff. See Johannesen, 2011 IL App (2d) 110108, ¶ 27. If, from the well-pleaded

facts, a reasonable inference could be drawn in plaintiff’s favor—which is to say, in favor of the

legal sufficiency of the complaint—we will draw that inference. See id. “Dismissal pursuant to

section 2-615 *** is only proper where, when construing the allegations of the complaint in the

light most favorable to plaintiff, it clearly appears that no set of facts can be proved under the

pleadings which will entitle the plaintiff to recover.” Armstrong v. Snyder, 336 Ill. App. 3d 567,

568-69 (2003).

-6- ¶ 32 With those ground rules in mind, we first evaluate the legal sufficiency of count I,

the count seeking mandamus. By its factual allegations, count I must establish three propositions.

First, under the law, plaintiff has a clear right to the performance of the ministerial act that he

seeks to compel the public officer to perform. See Burris v. White, 232 Ill. 2d 1, 7 (2009);

Baldacchino v. Thompson, 289 Ill. App. 3d 104, 109 (1997). Second, plaintiff demanded that the

public officer perform the act (unless such a demand would have been futile), and the public

officer refused to do so. See Eley v. Cahill, 126 Ill. App. 2d 272, 276-77 (1970). Third, the public

officer has clear authority to comply with the proposed writ of mandamus. See Burris, 232 Ill. 2d

at 7.

¶ 33 Plaintiff argues that defendants have both authority and a duty to comply with the

Department’s regulations. We do not understand defendants as disputing that argument.

“Administrative regulations have the force and effect of law” (People v. Bonutti, 212 Ill. 2d 182,

188 (2004)), and a prisoner may file a complaint for mandamus to compel correctional officers to

perform nondiscretionary duties laid down in the Department’s regulations (West v. Gramley,

262 Ill. App. 3d 552, 557 (1994); Shea v. Edwards, 221 Ill. App. 3d 219, 221 (1991); Taylor v.

Franzen, 93 Ill. App. 3d 758, 765 (1981))—assuming the prisoner has a substantial personal

interest in the matter (see Warden v. Byrne, 102 Ill. App. 3d 501, 506 (1981); North v. Board of

Trustees of the University of Illinois, 137 Ill. 296, 301 (1891)).

¶ 34 Citing several paragraphs of his complaint, plaintiff argues he specifically alleged

violations of the Department’s regulations and that mandamus should compel compliance with

these regulations. We will discuss the alleged violations one by one.

¶ 35 1. Review of the Inmate Disciplinary Report by a Hearing Investigator

-7- ¶ 36 Under section 504.60(a), “[t]he Chief Administrative Officer shall appoint one or

more Hearing Investigators[,] who shall review all major disciplinary reports.” (Emphasis

added.) 20 Ill. Adm. Code 504.60(a) (2003). Plaintiff claims the Department violated this

section. In support of his claim, he references the inmate disciplinary report, a copy of which is

attached to his complaint as exhibit A: in the report, the box next to “Hearing Investigator’s

Review Required” is blank, as is the line for the hearing officer’s signature.

¶ 37 Evidently, judging by exhibit A, the Department decided a hearing investigator’s

review was not required in this case. Necessarily, that decision entailed the exercise of judgment,

because a hearing investigator’s review was required only for “major” disciplinary reports, and it

was a matter of judgment whether a disciplinary report was “major.” Id.

¶ 38 No doubt, plaintiff would regard that decision as a misjudgment or an abuse of

discretion, but the conscientiousness of the exercise of judgment or discretion is beside the point.

The question is not whether the exercise of judgment or discretion was sound; the question is

whether the exercise of judgment or discretion was required. Mandamus “will not be granted

when the act in question involves the exercise of discretion.” (Emphasis in original.) The Y-Not

Project, Ltd. v. Fox Waterway Agency, 2016 IL App (2d) 150502, ¶ 35. The act that the plaintiff

seeks to compel in a mandamus action must be purely ministerial in nature, involving no use of

judgment. Id. This act involved the use of judgment. Thus, with respect to the omission of a

hearing investigator’s review, plaintiff states no cause of action for mandamus.

¶ 39 2. Failure To Serve the Disciplinary Report Upon Plaintiff by the Regulatory Deadline

¶ 40 Section 504.30(f) provides as follows: “Service of a disciplinary report upon the

offender shall commence the disciplinary proceeding. In no event shall a disciplinary report ***

-8- be served upon an adult offender more than [eight] days *** after the commission of an offense

or the discovery thereof unless the offender is unavailable or unable to participate in the

proceeding.” 20 Ill. Adm. Code 504.30(f) (2003).

¶ 41 Plaintiff alleges the disciplinary report was issued on December 16, 2014, and that

the disciplinary report “lists incident dates of February of 2014; May 5, 2014; July 15, 2014;

August 30, 2014; September of 2014; October 13, 2014[;] [and] December 7, 2014”—all of

which predate the issuance of the disciplinary report by more than eight days. Obviously, the

disciplinary report could not have been served upon him before it was issued. He argues that,

because of the Department’s failure to meet the eight-day deadline for serving the disciplinary

report on him, the Department has a clear duty, under section 504.30(f), to withdraw the

disciplinary report and the associated penalties. See id.

¶ 42 Even this eight-day deadline, however, requires the exercise of judgment or

discretion: “In no event shall a disciplinary report *** be served upon an adult offender more

than [eight] days *** after the commission of an offense or the discovery thereof unless the

offender is unavailable or unable to participate in the proceeding.” (Emphasis added.) Id. It

requires judgment to determine whether and when an offense was committed. An evaluation

must be performed. The Department must compare the known facts with the elements of the

offense and must reach a conclusion. For that matter, it requires judgment to determine whether

the offender is able to participate in the proceeding. No doubt plaintiff would argue that

judgment, under these circumstances, could have been soundly exercised in only one way. Even

so, judgment had to be exercised. It follows that the Department’s duty under section 504.30(f) is

not purely ministerial and that, with respect to the alleged noncompliance with the eight-day

-9- deadline in that section, plaintiff states no cause of action for mandamus. See Fox Waterway,

2016 IL App (2d) 150502, ¶ 35.

¶ 43 3. Failure To Provide a Written Reason for Denying Plaintiff’s Request for the In-Person Testimony of Witnesses

¶ 44 Plaintiff claims the Department violated section 504.80(h)(4) of its regulations

(20 Ill. Adm. Code 504.80(h)(4) (2003)) by failing to provide a written reason for denying his

request for the in-person testimony of witnesses at his disciplinary hearing.

¶ 45 Defendants respond that plaintiff failed to fulfill a procedural precondition. They

observe that, under section 504.80(f)(2) (20 Ill. Adm. Code 504.80(f)(2) (2003)), “[t]he [witness]

request [had to] be in writing on the space provided in the disciplinary report” and that the

request had to “include an explanation of what the witnesses would state.” Instead of using the

designated space in the disciplinary report to request witnesses, plaintiff used a separate sheet of

paper, and he did not explain what the witnesses would state. On the authority of Taylor v. Frey,

406 Ill. App. 3d 1112, 1118 (2011), defendants argue the Department was within its discretion to

refuse to hear witnesses, given that plaintiff never requested them in the manner that subsection

(f)(2) required.

¶ 46 To clarify, under the Department’s regulation, there are two kinds of requests for

witnesses: a request for the prehearing interview of witnesses (20 Ill. Adm. Code 504.80(f)(2)

(2003)) and a request for the in-person testimony of witnesses in the disciplinary hearing (20 Ill.

Adm. Code 504.80(h)(3) (2003)). It is unclear which kind of witness request plaintiff intended to

make. Was he requesting a prehearing interview of the witnesses pursuant to subsection (f)(2), or

was he requesting the in-person testimony of the witnesses pursuant to subsection (h)(3)? In his

request, a copy of which is attached to the complaint as exhibit B, he confusingly cited both

- 10 - subsection (f)(2) and subsection (h)(3). If he meant to request the prehearing interview of

witnesses pursuant to subsection (f)(2), he would have had to do so in the space provided in the

disciplinary report (see 20 Ill. Adm. Code 504.80(f)(2) (2003) (“The request shall be in writing

on the space provided in the disciplinary report and shall include an explanation of what the

witnesses would state.”)). He did not do so. Whether that omission was problematic depended on

which kind of witness request he was making—and, in that respect, his witness request was

unclear. His request did not specifically say what he wanted the Department to do: interview the

witnesses ahead of time or arrange for their attendance in the disciplinary hearing, and as we

noted, his request cited both subsection (f)(2) and subsection (h)(3).

¶ 47 Because of this ambiguity in his request, the Department had no “clear duty” to

provide a written reason for denying the request. Orenic v. Illinois State Labor Relations Board,

127 Ill. 2d 453, 467-68 (1989). That duty under section 504.80(h)(4) (20 Ill. Adm. Code

504.80(h)(4) (2003)) would have kicked in only if plaintiff requested the in-person attendance of

witnesses. It is unclear if he did so. Therefore, the Department had no clear duty, under section

504.80(h)(4), to provide a written reason for the denial. It follows that, with respect to the

Department’s alleged failure to provide a written reason for denying the in-person attendance of

witnesses (see id.), plaintiff states no cause of action for mandamus.

¶ 48 4. Failure To Place Plaintiff Under Investigation

¶ 49 Plaintiff claims the Department violated section 504.30(e) (20 Ill. Adm. Code

504.30(e) (2003)) in that the Department “never placed [him] under investigation.” That section

provides: “If an offender is suspected of committing a disciplinary offense, an investigative

disciplinary report, hereinafter referred to as an investigative report, may be issued that

- 11 - reasonably informs the offender of the subject of the investigation to the extent that safety and

security allow.” (Emphasis added.) Id. Because the word “may” calls for an exercise of

discretion (Krautsack v. Anderson, 223 Ill. 2d 541, 554 (2006)), and because mandamus may

compel the performance of only a nondiscretionary, ministerial duty (Fox Waterway, 2016 IL

App (2d) 150502, ¶ 35), we conclude that, with respect to the alleged violation of section

504.30(e), plaintiff states no cause of action for mandamus.

¶ 50 5. The Committee’s Failure To Independently Review the Notes and the Telephone Logs and Recordings

¶ 51 Plaintiff claims the committee members violated section 504.80(g) (20 Ill. Adm.

Code 504.80(g) (2003)) by failing to independently review the notes and the telephone logs and

recordings, as opposed to relying merely on summaries and quotations provided by other

correctional officers.

¶ 52 Section 504.80(g) consists of a single sentence, which reads as follows: “The

Committee shall consider all material presented that is relevant to the issue of whether or not the

offender committed the offense.” Id. It requires an exercise of judgment to determine which

materials are relevant—even if relevance should be obvious. Therefore, with respect to the

alleged violation of section 504.80(g), plaintiff fails to state a cause of action for mandamus. See

Fox Waterway, 2016 IL App (2d) 150502, ¶ 35.

¶ 53 In so holding, we acknowledge the federal cases that plaintiff cites. Those cases

found a due-process violation (or at least an arguable due-process violation) in the refusal of a

prison disciplinary tribunal to produce incriminating documents allegedly written by the prisoner

(Young v. Kann, 926 F.2d 1396, 1397 (3d Cir. 1991); Scarpa v. Ponte, 638 F. Supp. 1019, 1023

(D. Mass. 1986)) or in the refusal to review primary evidentiary materials as opposed to

- 12 - secondhand summaries of those materials (McIntosh v. Carter, 578 F. Supp. 96, 98 (W.D. Ky.

1983)). For two reasons, however, we find those federal cases to be inapposite. First, decisions of

the United States District Court and the Court of Appeals do not establish Illinois law (see

People v. Pitzman, 293 Ill. App. 3d 282, 291 (1997)), and, thus, they do not establish a “clear

duty” on the part of defendants (Burris, 232 Ill. 2d at 7). Second, none of those federal cases

sought mandamus.

¶ 54 6. The Committee’s Refusal To Produce the Notes

¶ 55 Plaintiff alleges that, both before and during the disciplinary hearing, he requested

to see the notes he allegedly had written and that the Department denied those requests, thereby

violating section 504.80(f)(1) (20 Ill. Adm. Code 504.80(f)(1) (2003)).

¶ 56 Under section 504.80(f)(1), “[t]he offender may *** produce any relevant

documents in his or her defense.” Id. Thus, instead of having the right to present any and all

documents in his or her defense, the offender has a right to present only “relevant” documents in

his or her defense. Id. To decide whether a document is presentable in the disciplinary hearing,

the Department has to decide whether it is relevant. Because the determination of relevancy

requires an exercise of judgment, plaintiff fails to state a cause of action for mandamus with

respect to the alleged violation of section 504.80(f)(1). See Fox Waterway, 2016 IL App (2d)

150502, ¶ 35. Again, it does not matter if judgment could have been reasonably exercised in only

one way; judgment is judgment.

¶ 57 7. The Committee Members’ Refusal To Recuse Themselves

- 13 - ¶ 58 Plaintiff argues the committee members should have recused themselves because,

having been directed by higher-up prison authorities to find him guilty and to impose particular

penalties, they lacked impartiality.

¶ 59 The asserted duty of recusal, however, would not have been a ministerial duty.

Rather, the committee members would have had to perform a legal evaluation: they would have

had to judge whether, in the light of relevant case law, the alleged directive from above

disqualified them from being impartial hearing officers. Therefore, with respect to their refusal to

recuse themselves, plaintiff fails to state a cause of action for mandamus. See Fox Waterway,

¶ 60 8. Failure To Follow a Required Procedure After a Prisoner Objects to Committee Members on the Ground of Their Lack of Impartiality

¶ 61 In his complaint, plaintiff makes the following factual allegations, which, again,

for purposes of section 2-615, we assume to be true. See Schweihs, 2016 IL 120041, ¶ 27. In the

disciplinary hearing, one of the defendants, Eldon L. Cooper, who was a member of the

adjustment committee, told plaintiff “that the Committee [had been] directed by higher[-]up

prison authorities to find plaintiff guilty and revoke a year[’s] good conduct credit and impose

punitive segregation and other punitive sanctions for a year.” Plaintiff immediately made a

verbal objection to the committee members’ lack of impartiality, but they refused to recuse

themselves. Afterward, in its final summary report, the committee made no mention of plaintiff’s

objection to the committee members’ lack of impartiality.

¶ 62 Plaintiff argues this omission violated section 504.80(d) (20 Ill. Adm. Code

504.80(d) (2003)), which provides as follows: “Any person *** who is *** not impartial shall

not serve on the Adjustment Committee hearing that disciplinary report. An offender who objects

- 14 - to a member of the Committee based on a lack of impartiality must raise the matter at the

beginning of the hearing. The Committee shall document the basis of the objection and the

decision in the Adjustment Committee summary.” (Emphasis added.)

¶ 63 Plaintiff alleged he made a timely objection to the committee members’ lack of

impartiality, and the committee had a clear, nondiscretionary duty, under section 504.80(d), to

“document the basis of the objection and the decision in the Adjustment Committee summary.”

Id. In the grievance that plaintiff filed on January 5, 2015, one of his complaints was that the

committee had “arbitrarily failed to document [his] objections concerning the Committee[’s] not

being impartial, in violation of [section] 504.80(d).” The Department denied his grievance.

Therefore, in this context, all the elements of mandamus are present: “a clear right to relief, a

clear duty of the public official to act, and a clear authority in the public official to comply with

the [proposed] writ.” Burris, 232 Ill. 2d at 7. With respect to the Department’s noncompliance

with section 504.80(d), plaintiff states a cause of action for mandamus.

¶ 64 9. Failure To Include a Summary of Plaintiff’s Written Statement

¶ 65 Section 504.80(l)(1) provides as follows:

“l) A written record shall be prepared and signed by all members of the

Committee that contains:

1) A summary of oral and written statements and other evidence

presented.” 20 Ill. Adm. Code 504.80(l)(1) (2003).

Subsection (o) provides: “A copy of the disciplinary report and Adjustment Committee summary

shall be forwarded to the Chief Administrative Officer for review and approval and a copy shall

be filed in the offender’s record.” 20 Ill. Adm. Code 504.80(o) (2003). Apparently, the summary

- 15 - of the offender’s written statement is part of what the “Chief Administrative Officer” would

review in deciding whether to approve the “Adjustment Committee dispositions.” 20 Ill. Adm.

Code 504.80(p) (2003).

¶ 66 Plaintiff alleges that although, in the disciplinary hearing, he submitted to the

adjustment committee a written statement (exhibit C of the complaint), the committee’s final

summary report (exhibit D) lacks a summary of his written statement. Plaintiff subsequently

complained, in his grievance (exhibit E), that the committee had “failed to give a summary of

[his] written statement, in violation of [section] 504.80(l)(1),” but the Department denied his

grievance.

¶ 67 Because the committee members had a clear ministerial duty to include, in the

administrative record, signed by them, a summary of plaintiff’s written statement (see 20 Ill.

Adm. Code 504.80(l)(1) (2003)), plaintiff states a cause of action for mandamus in this respect.

See Fox Waterway, 2016 IL App (2d) 150502, ¶ 35; Thompson v. Lane, 194 Ill. App. 3d 855,

863 (1990) (this regulatory requirement of summarizing all the evidence, including the oral and

written statements, “is not to be taken lightly”).

¶ 68 B. The Request for a Declaratory Judgment (Count II)

¶ 69 We have held that an action for a common-law writ of certiorari, instead of an

action for a declaratory judgment, is the correct means by which to seek the review of penalties

imposed in a prison disciplinary proceeding. Alicea v. Snyder, 321 Ill. App. 3d 248, 253 (2001).

Therefore, plaintiff fails to state a cause of action for a declaratory judgment. See id.

¶ 70 C. The Request for a Common-Law Writ of Certiorari (Count III)

- 16 - ¶ 71 1. The Availability of a Common-Law Action for Certiorari

¶ 72 If an administrative agency issues a quasi-judicial decision (McKeown v. Moore,

303 Ill. 448, 453 (1922)) and the statute conferring power on the agency does not adopt the

Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2014)) or provide any other

method of judicial review, the decision is reviewable in an action for a common-law writ of

certiorari (Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996)). Because the statutory provisions

pertaining to prison disciplinary procedures (730 ILCS 5/3-8-7 to 3-8-10 (West 2014)) neither

adopt the Administrative Review Law nor provide any other method of judicial review, prison

disciplinary proceedings are reviewable in an action for certiorari. Alicea, 321 Ill. App. 3d at

253.

¶ 73 2. The Nature of a Common-Law Action for Certiorari

¶ 74 Whereas mandamus compels a governmental official to perform a ministerial act,

a common-law writ of certiorari “bring[s] before the court issuing it the record of the inferior

tribunal for review.” Barden v. Junior College District No. 520, 132 Ill. App. 2d 1038, 1038

(1971); see also People ex rel. Elmore v. Allman, 382 Ill. 156, 160 (1943). The circuit court will

issue a writ of certiorari to the agency, and within the time specified in the writ (see Murphy v.

Cuesta, Rey & Co., 381 Ill. 162, 168 (1942)), the agency must provide the court with the record

of the administrative proceedings so that the court can determine from the record—and only

from the record (Reichert v. Court of Claims, 203 Ill. 2d 257, 260 (2003); Goodfriend v. Board of

Appeals, 18 Ill. App. 3d 412, 418-19 (1973))—whether the agency acted within its statutory

authority and in accordance with the law (Funkhouser v. Coffin, 301 Ill. 257, 260 (1921);

Goodfriend, 18 Ill. App. 3d at 418-19). The burden will be on the agency to provide a record

- 17 - adequate to that purpose: a record consisting of facts, not mere conclusions (Funkhouser, 301 Ill.

at 261). Frye v. Hunt, 365 Ill. 32, 37 (1936) (“Where the question is whether jurisdictional facts

were established, mere conclusions of law are insufficient and the record must show the

existence of the facts required to authorize the inferior tribunal or officer to act, and this evidence

may properly be reviewed by the court.”); Funkhouser, 301 Ill. at 264 (“The record made on the

return of the writ failing to show any facts upon which [the] removal [of the appellee from his

municipal employment] was justified, the trial court erred in quashing the writ and in not

granting the motion of the appellee to quash the original [(administrative)] proceedings [for his

removal].”).

¶ 75 After reviewing the record from the inferior tribunal, the trial court should enter

either of two judgments. If, from the record, it appears that the inferior tribunal lacked

jurisdiction or that its actions were inconsistent with the law, the court may quash the

proceedings of the inferior tribunal. Goodfriend, 18 Ill. App. 3d at 419. Alternatively, if, from the

record, it appears that the inferior tribunal had jurisdiction and that its actions were consistent

with the law, the court should dismiss the certiorari count and quash the writ. Id.

¶ 76 3. The Pleading Requirements

¶ 77 A petition for a common-law writ of certiorari must allege “good cause” for the

issuance of a writ (City of Chicago v. Condell, 224 Ill. 595, 597 (1906)): the petition must allege

that the inferior tribunal or the agency exercising a quasi-judicial function (Reichert, 203 Ill. 2d

at 260) failed to comply with the law or exceeded its authority (City of Kankakee v. Department

of Revenue, 2013 IL App (3d) 120599, ¶ 14), with the result that the petitioner suffered

“substantial injury or injustice” (Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d

- 18 - 413, 428 (1990)). If the plaintiff (1) was a party to the administrative proceeding (Board of

Education of Woodland Community Consolidated School District 50 v. Illinois State Charter

School Comm’n, 2016 IL App (1st) 151372, ¶ 39); (2) was substantially injured by the agency’s

failure to follow an essential procedural requirement applicable to such a proceeding (id.; C&K

Distributors, Inc. v. Hynes, 122 Ill. App. 3d 525, 528 (1984)); and (3) has no other method of

review (Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 333 (2009)), the

plaintiff has a cause of action for certiorari.

¶ 78 Taking the well-pleaded facts of the complaint to be true (see Schweihs, 2016 IL

120041, ¶ 27), as opposed to conclusions, which we disregard (see Johannesen, 2011 IL App

(2d) 110108, ¶ 27), and resolving all reasonable inferences in plaintiff’s favor (see Schweihs,

2016 IL 120041, ¶ 27; Johannesen, 2011 IL App (2d) 110108, ¶ 27), we see two failures to

comply with law that arguably caused substantial injury or injustice to him.

¶ 79 4. Refusal To Produce the Notes in Question

¶ 80 First, plaintiff alleges that, both before and during the disciplinary hearing, he

requested to see the notes he allegedly had written. In exhibit B of the complaint, addressed to

the adjustment committee and dated December 16, 2014, plaintiff stated: “I request to be shown

the alleged ‘notes.’ ” In exhibit C of the complaint, likewise addressed to the adjustment

committee and dated December 19, 2014, he cited section 504.80(f)(1) (20 Ill. Adm. Code

504.80(f)(1) (2003)) and stated: “I request to see the alleged confiscated ‘notes’ regarding the

12-16-14 disciplinary report, and request that my December 16, 2014[,] witness and document

request be reviewed and considered as exculpatory evidence by the Committee.” Without

explanation, the committee refused to produce the notes in the disciplinary hearing, or so

- 19 - plaintiff alleges in his complaint. Afterward, in his grievance, plaintiff complained: “The

Committee arbitrarily failed to review or allow me to review the alleged ‘notes’ stated in the 12-

16-14 [inmate disciplinary report].” The Department denied the grievance, “find[ing] no

violation of the offender’s due process in accordance with [sections 504.80 (20 Ill. Adm. Code

504.80 (2003)) and 504.30 (20 Ill. Adm. Code 504.30 (2003))].”

¶ 81 Under section 504.80(f)(1) (20 Ill. Adm. Code 504.80(f)(1) (2003)), “[t]he

offender may *** produce any relevant documents in his or her defense.” Thus, the Department

had a duty to allow plaintiff to produce any relevant documents in his defense. Given that the

disciplinary report cited the notes as evidence against plaintiff, it would be untenable to

characterize the notes as irrelevant. The Department was required to follow its own regulations

(see Thompson, 194 Ill. App. 3d at 860), and it was the Department’s duty, under section

504.80(f)(1), to allow plaintiff to “produce” the notes in his own defense. 20 Ill. Adm. Code

504.80(f)(1) (2003). One of the meanings of “produce” is to “show *** (something) for

consideration” or “inspection.” The New Oxford American Dictionary 1359 (2001). If, in his

own defense, plaintiff wanted to show the notes in question, to prove he was not their author, and

if the Department had exclusive possession of the notes and refused to relinquish them for his

use in the disciplinary hearing, the Department violated its regulatory duty to allow plaintiff to

“produce any relevant documents in his *** defense” (20 Ill. Adm. Code 504.80(f)(1) (2003)).

See also Thompson, 194 Ill. App. 3d at 859 (one of the due-process rights of a prisoner in a

prison disciplinary proceeding is to “present documentary evidence in his defense”). The alleged

violation of section 504.80(f)(1) is significant and in itself would justify the issuance of a

common-law writ of certiorari. See Stratton, 133 Ill. 2d at 428; Condell, 224 Ill. at 597; City of

Kankakee, 2013 IL App (3d) 120599, ¶ 14; Tanner v. Court of Claims, 256 Ill. App. 3d 1089,

- 20 - 1092 (1994) (“Where a plaintiff brings into issue the alleged violation of his procedural and

substantive rights, the petition is not subject to dismissal, as such issue cannot be determined as a

matter of law upon the bare allegations of the petition.”).

¶ 82 In response to a writ of certiorari, the Department should be required to produce

an administrative record showing that, contrary to plaintiff’s allegation (which, for purposes of

the motion for dismissal, we take as true (see Schweihs, 2016 IL 120041, ¶ 27)), the Department

produced the notes in question so that plaintiff could use them, in his own defense, in the

disciplinary hearing.

¶ 83 5. The Refusal of the Committee Members To Recuse Themselves

¶ 84 Second, plaintiff alleges the committee members should have recused themselves

because, having been directed by higher-up prison authorities to find him guilty and to impose

particular penalties, they lacked impartiality. In a disciplinary hearing, the prisoner has a due-

process right to, among other things, an impartial hearing officer. Epstein v. Lane, 189 Ill. App.

3d 63, 64 (1989).

¶ 85 We begin with the presumption that the members of the adjustment committee

were “objective and capable of fairly judging the issues.” Hurst v. Department of Employment

Security, 393 Ill. App. 3d 323, 330 (2009). Like all presumptions, however, that presumption is

rebuttable. “Bias or prejudice may *** be shown if a disinterested observer might conclude that

the official had in some measure adjudged the facts as well as the law of the case in advance of

hearing it.” Id. Taking the well-pleaded facts of the complaint to be true and drawing all

reasonable inferences in plaintiff’s favor (see Schweihs, 2016 IL 120041, ¶ 27; Johannesen, 2011

IL App (2d) 110108, ¶ 27), a disinterested observer might conclude that the members of the

- 21 - adjustment committee had prejudged the case before hearing it, considering it is alleged that (1)

they personally examined none of the primary evidentiary materials; (2) Cooper told plaintiff, in

the hearing, that their superiors had ordered them to find him guilty and to impose certain

penalties; and (3) they then found him guilty and imposed precisely the penalties their superiors

had ordered them to impose. Given the factual allegations of the complaint, which our standard

of review obliges us to take as true, the impartiality of the administrative tribunal is sufficiently

in question that good cause exists for the issuance of a writ of certiorari. See Stratton, 133 Ill. 2d

at 428; Condell, 224 Ill. at 597; City of Kankakee, 2013 IL App (3d) 120599, ¶ 14; Tanner, 256

Ill. App. 3d at 1092.

¶ 86 This claim of bias should not take the Department by surprise. In his grievance,

defendant stated: “[Correctional Officer] Cooper *** stated that the committee was told to give

me a year across the board and find me guilty. I made verbal objections to the committee not

being impartial.” This was a serious allegation, which plaintiff formally made in a grievance, and

one would expect the administrative record to contain a rebuttal, considering that Taylor denied

the grievance. In response to a writ of certiorari, the Department should produce this record.

¶ 87 6. The Eight-Day Deadline for Serving the Disciplinary Report

¶ 88 Additionally, in his count for certiorari, plaintiff alleges the Department violated

section 504.30(f) (20 Ill. Adm. Code 504.30(f) (2003)) in that “[t]he December 16, 2014, [inmate

disciplinary report] was written beyond the statutory eight (8) days allowed after the incident.”

Specifically, he alleges the disciplinary report was written (and therefore served upon him) more

than eight days after the final evidentiary incident listed in the disciplinary report, namely, the

telephone call of December 7, 2014.

- 22 - ¶ 89 That is not enough, however, to establish a violation of the regulation. Plaintiff

must plead facts that would, if proved, establish the Department’s noncompliance with the eight-

day deadline in section 504.30(f) (see Teter v. Clemens, 112 Ill. 2d 252, 256 (1986)), and merely

by proving that the Department served the disciplinary report on him more than eight days after

the final telephone call, plaintiff would not prove noncompliance with the eight-day deadline.

¶ 90 In concluding that plaintiff committed the offense of security group threat or

unauthorized organization activity, the Department relied not only on the telephone calls, but

also on statements by confidential informants. We do not know when the Department

interviewed these confidential informants. The Department could have done so the day before

serving the disciplinary report on plaintiff. Likewise, for purposes of the offense of intimidation,

we do not know when the Department came into the possession of a handwriting sample by

plaintiff, to compare it with the note that Harper had confiscated in the shakedown. For all we

know, the Department made the comparison the day before serving the disciplinary report on

plaintiff. Therefore, with respect to the alleged failure to meet the eight-day deadline in section

504.30(f), plaintiff has failed to plead a cause of action for a common-law writ of certiorari.

¶ 91 D. The Rationale for the Motion for Dismissal: the Suggestion That the Illinois Administrative Code Confers No Rights on Prisoners

¶ 92 In support of its motion for dismissal, the State cited Ashley v. Snyder, 316 Ill.

App. 3d 1252, 1258 (2000), and two cases that relied on Ashley: Duane v. Hardy, 2012 IL App

(3d) 110845, ¶ 15, and Dupree v. Hardy, 2011 IL App (4th) 100351, ¶ 25.

¶ 93 In Ashley, a correctional center in which the plaintiff was imprisoned issued a

policy-revising bulletin, which lessened the amount of personal property that inmates were

- 23 - permitted to keep in their cells. Previously, an orientation manual permitted inmates to keep

more personal property. Ashley, 316 Ill. App. 3d at 1254. The plaintiff contended that the bulletin

violated various provisions of the United States and Illinois Constitutions, as well as several state

and federal statutes. Id. at 1253.

¶ 94 One of the plaintiff’s constitutional contentions was that the bulletin deprived him

of property without the due process of law. Id. at 1255. We rejected that contention because, in

Sandin v. Conner, 515 U.S. 472, 477-84 (1995), the Supreme Court had held that, for purposes

of the due-process clause (U.S. Const., amend. XIV), states could not “create enforceable liberty

interests in freedom from the routine deprivations and discomforts of prison life.” Ashley, 316 Ill.

App. 3d at 1255. Although, for the benefit of prisoners, states could “ ‘create liberty interests ***

protected by the [d]ue [p]rocess [c]lause,’ ” those interests would “ ‘generally [be] limited to

freedom from restraint which *** imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.’ ” (Emphasis in original.) Id. at 1255-56 (quoting

Sandin, 515 U.S. at 484). Restricting the amount of personal property inmates could keep in their

cells did not qualify as an atypical and significant hardship, and, thus, for purposes of due

process, such a restriction did “not impact a protected liberty interest.” Id. at 1256.

¶ 95 We likewise rejected the plaintiff’s other constitutional theories. The bulletin did

not change the definition of his crime or create any risk of increasing the punishment for his

crime, and hence the ex post facto clause (Ill. Const. 1970, art. I, § 16) was irrelevant. Ashley,

316 Ill. App. 3d at 1257. The bulletin was not an unreasonable seizure under the fourth

amendment (U.S. Const., amend. IV), because the fourth amendment was inapplicable in prison

cells. Ashley, 316 Ill. App. 3d at 1257. Nor did the bulletin violate the eighth amendment (U.S.

Const., amend. VIII); limiting the amount of property that inmates could keep in their cells was

- 24 - part of the penalty that criminal offenders typically had to pay for their offenses. Ashley, 316 Ill.

App. 3d at 1257.

¶ 96 We also were unconvinced that statutory law lent any support to the plaintiff’s

claim. Rather, section 3-4-3 of the Unified Code of Corrections (730 ILCS 5/3-4-3 (West 1998))

explicitly contemplated that inmates would “ ‘not [be] allowed’ ” to keep some “ ‘personal

property.’ ” Ashley, 316 Ill. App. 3d at 1258 (quoting 730 ILCS 5/3-4-3 (West 1998)).

¶ 97 Those holdings rightly disposed of all the constitutional and statutory claims that

the plaintiff had raised in Ashley. Nevertheless, in an “epilogue,” we added:

“In so holding, we note that this sort of ‘prisoner’s rights’ case depletes

the resources of prosecutors, the judiciary, and [the Department], and

unnecessarily diverts [the Department’s] attention from ensuring that prisoners

are granted their genuine rights. Prison regulations, such as those contained in the

inmate orientation manual relied on here, were never intended to confer rights on

inmates or serve as a basis for constitutional claims. Sandin, 515 U.S. at 482***.

Instead, Illinois [Department] regulations, as well as the Unified Code, were

designed to provide guidance to prison officials in the administration of prisons.

In addition, Illinois law creates no more rights for inmates than those which are

constitutionally required.

***

*** Inmates thus have a constitutional right to adequate shelter, food,

drinking water, clothing, sanitation, medical care, and personal safety. [Citations.]

Prisoners also have a reasonable right of access to courts and a right to a

reasonable opportunity to exercise religious freedom under the first amendment.

- 25 - [Citation.] Beyond these, prisoners possess no other rights, only privileges.”

(Emphases in original.) Id. at 1258-59.

¶ 98 It is true that “[p]rison regulations” of the type represented by the inmate

orientation manual confer no rights on inmates (id. at 1258), but that is because bulletins,

handbooks, and similar materials are not the Illinois Administrative Code (see Lucas v.

Department of Corrections, 2012 IL App (4th) 110004, ¶ 14). A procedural operating manual is

“designed to provide guidance” (Ashley, 316 Ill. App. 3d at 1258), but the Illinois Administrative

Code is different: it is more than guidance; it has “the force and effect of law” (People ex rel.

Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370, 380 (2008); People v. Montalvo, 2016

IL App (2d) 140905, ¶ 18). To say that “Illinois law,” including the Illinois Administrative Code,

“creates no more rights for inmates than those which are constitutionally required” would be to

say that, for inmates, Illinois law is redundant and superfluous—it might as well not exist for

them. (Emphasis in original.) Ashley, 316 Ill. App. 3d at 1258. Not only is that statement

unsupported by citation to any authority, but it is irreconcilable with case law preceding Ashley.

It had always been the law that, in prison disciplinary proceedings, the Department had to follow

its own promulgated regulations (Clayton-El v. Lane, 203 Ill. App. 3d 895, 899 (1990);

Thompson, 194 Ill. App. 3d at 860; People ex rel. Yoder v. Hardy, 116 Ill. App. 3d 489, 495

(1983)) and that inmates could sue to compel correctional officers to perform nondiscretionary

duties set forth in the Department’s regulations (West, 262 Ill. App. 3d at 557; Shea, 221 Ill.

App. 3d at 221; Taylor, 93 Ill. App. 3d at 765). To the extent that Ashley suggests otherwise, we

decline to follow Ashley.

¶ 99 It is true that, for purposes of constitutional due process, the liberty interests that

state statutes create are “generally limited to freedom from restraint which *** imposes atypical

- 26 - and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin, 515 U.S. at 484. That does not mean, however, that it is impossible for a state statute to

create other, nonconstitutional rights for inmates, enforceable by mandamus. Several years after

the issuance of Ashley, in an original mandamus action brought by a prisoner (see Ill. S. Ct. R.

381(c) (eff. Mar. 1, 2001)), the supreme court described the elements of mandamus as follows:

“Mandamus is an extraordinary remedy to enforce, as a matter of right, the

performance of official duties by a public officer where no exercise of discretion

on his part is involved. *** [Citation.] To obtain relief, a plaintiff must establish a

clear right to mandamus. [Citation.] Mandamus is improper where its effect is to

substitute the court’s judgment or discretion for that of the body which is

commanded to act. *** [Citation.] Consequently, we will not grant mandamus

relief unless the plaintiff has clearly shown: (1) an affirmative right to relief; (2)

defendant’s duty to act; and (3) defendant’s authority to comply with the order.

[Citation.]” (Internal quotation marks omitted.) Holly v. Montes, 231 Ill. 2d 153,

159 (2008).

Notably absent from this description of mandamus is any requirement that the plaintiff-prisoner’s

“affirmative right to relief” be constitutional. Id. The prisoner in Holly contended that, under

both statutory law and the due-process clause (whether of the Illinois Constitution or the United

States Constitution or both is unspecified), he had a clear right to mandatory supervised release

that was free of the condition of electronic home monitoring. Id. at 156. If, as we had held in

Ashley, “Illinois law create[d] no more rights for inmates than those which [were]

constitutionally required” (emphasis in original) (Ashley, 316 Ill. App. 3d at 1258), the plaintiff’s

statutory argument would have been superfluous, and the supreme court could have proceeded

- 27 - directly to his alternative, constitutional theory. But the supreme court painstakingly construed

the relevant statutory provisions and concluded:

“Contrary to [the plaintiff’s] arguments, the [Prisoner Review Board

(Board)] has the statutory authority to impose electronic home confinement as a

condition of his mandatory supervised release. [The plaintiff] has no right, let

alone a clear right, to demand that the Board release him from [electronic home

confinement] during his [mandatory supervised release] because the imposition of

that condition was a proper exercise of the Board’s statutory discretion. Without a

clear showing of his affirmative right to relief, [the plaintiff] has failed to

establish his right to mandamus relief, and his complaint must fail.” Holly, 231 Ill.

2d at 164-65.

That quoted paragraph—and indeed the five or so pages of statutory construction in Holly—

would have been pointless if, as we said in Ashley, the only right a prisoner could vindicate in an

action for mandamus was a constitutional right. The supreme court has long held that by an

action for mandamus, a prisoner may compel the performance of a purely statutory duty. See

People ex rel. Abner v. Kinney, 30 Ill. 2d 201, 207 (1964).

¶ 100 This is not to throw the door open to petty litigation. In an action for mandamus,

not only must the legal duty of the public official be clear and nondiscretionary (People ex rel.

Birkett v. Konetski, 233 Ill. 2d 185, 192-93 (2009)), but the plaintiff must have a strong equitable

case (Thomas v. Village of Westchester, 132 Ill. App. 3d 190, 196 (1985)). Recreational

litigation, even if technically meritorious, should not win a writ of mandamus, which is an

“extraordinary remedy.” Id. “The writ of mandamus is not a writ of right,” and even if the

plaintiff has shown a clear ministerial duty on the part of the public officer, a court nevertheless

- 28 - may, in its discretion, refuse to issue the writ if the court is unconvinced the writ would

accomplish “substantial justice” outweighing the disruption the writ might cause. People ex rel.

Stettauer v. Olsen, 215 Ill. 620, 622 (1905); see also Thomas, 132 Ill. App. 3d at 196. Similarly,

it must appear that the petitioner for a writ of certiorari has suffered a “substantial injury or

injustice.” Stratton, 133 Ill. 2d at 428.

¶ 101 III. CONCLUSION

¶ 102 For the foregoing reasons, we affirm the trial court’s judgment in part and reverse

it in part, and we remand this case for further proceedings consistent with this opinion.

¶ 103 Affirmed in part and reversed in part; cause remanded.

- 29 -