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No. 3--02--0049

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

The plaintiff, Brian Miranda, is an inmate in the custody ofthe Illinois Department of Corrections (DOC), incarcerated atDanville Correctional Center. Following a hearing by the prisonadjustment committee, plaintiff was found guilty of damage ormisuse of property and insolence. Plaintiff sought a writ ofmandamus to compel the defendants, Marilyn Coutee, John Trout andLamark Carter, to interview his witnesses and conduct a newadjustment committee hearing. Defendants filed a motion forsummary judgment which was granted by the trial court. Plaintiffappeals, and we reverse and remand.

On August 1, 1998, correctional officer Daryl Hendersonconducted a shakedown of plaintiff's cell. After completing theshakedown, Henderson noticed that his prescription eyeglasseswere missing. Henderson later recovered his eyeglasses from thecell toilet. The frame of the glasses was twisted and the lenseswere missing.

Henderson wrote a disciplinary report in which he accusedplaintiff and plaintiff's cellmate of taking and destroying hiseyeglasses. Several charges were listed in the disciplinaryreport, including damage or misuse of property, giving falseinformation to an employee, insolence and theft.

Plaintiff was placed in temporary confinement pending ahearing by the adjustment committee on the charges. Afterreceiving a copy of the disciplinary report, plaintiff requestedin writing that two other inmates be called to testify. Plaintiff indicated "G. Guirch" would testify "that I was at hiscell during shaking down, etc, etc." The request identifiedGuirch's cell number as 111.

Plaintiff was allowed to testify at the hearing. However,the adjustment committee did not respond to his request to callthe other inmates to testify. The adjustment committee summaryindicated the "witnesses were not contacted because the requestswere not clear."

The adjustment committee found plaintiff guilty of damage ormisuse of property and insolence. As a consequence, plaintiffreceived three months' segregation, a demotion to Cgrade for sixmonths and revocation of three months' good-conduct credit. Hewas also ordered to pay restitution in the amount of $157.95.

Plaintiff filed a grievance report in which he clarifiedthat his witness's name was actually spelled "Guirsch," and hewas in cell 211 rather than 111. Plaintiff's grievance wasdenied.

Plaintiff then filed a petition for writ of mandamus,generally alleging a violation of his due process rights as aresult of defendants' failure to perform their ministerialduties. Plaintiff sought an order compelling defendants tointerview his witnesses and conduct a new hearing.

Defendants filed a motion for summary judgment, which wasgranted by the trial court.

On appeal, plaintiff asserts the trial court erred indismissing his petition because the facts show his due processrights were violated as a result of the failure to interview orcall his witnesses to testify. Defendants contend they did notviolate plaintiff's due process rights because the request wasunclear. Specifically, defendants assert they could not locateGuirsch because his name was misspelled and he was identified byan incorrect cell number in the request.

An action for writ of mandamus is appropriate where there isa clear right to the requested relief, a clear duty of thedefendant to act and clear authority in the defendant to complywith the writ. Orenic v. Illinois State Labor Relations Board,127 Ill. 2d 453, 537 N.E.2d 784 (1989). Summary judgment isappropriate when the pleadings, depositions and admissions onfile, together with any affidavits, show that there is no genuineissue of material fact and the moving party is entitled tojudgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998). In this case, both parties rely on the disciplinary reportand adjustment committee summary for the relevant facts. Inparticular, plaintiff's request to call witnesses to testify iswritten on the disciplinary report. The reason given bydefendants for the failure to interview or call the witnesses isstated in the adjustment committee summary. Therefore, thecritical facts are contained in these documents and are not indispute. In such a case, the sole function of the reviewingcourt is to determine whether the trial court's decision wascorrect as a matter of law. See Villarreal v. Village ofSchaumburg, 325 Ill. App. 3d 1157, 759 N.E.2d 76 (2001).

Due process requires that an inmate be allowed to callwitnesses in his defense when he is faced with possiblerevocation of good-time credit. Wolff v. McDonnell, 418 U.S.539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). However, thisright is not absolute. Wolff, 418 U.S. 539, 41 L. Ed. 2d 935, 94S. Ct. 2963. Prison officials must have discretion to keep thehearing within reasonable limits and to bar witnesses that maycreate a risk of reprisal or undermine authority. Wolff, 418U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963. Accordingly, aninmate's witness request may be denied if the reasons for thedenial are logically related to preventing hazards toinstitutional safety or correctional goals. Ponte v. Real, 471U.S. 491, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985).

In this case, plaintiff's good-conduct credit was revoked. Therefore, plaintiff was deprived of a liberty interest, which isafforded due process protections. As noted, plaintiff's witnessrequest could be denied if the reason for the denial was relatedto institutional safety or correctional goals. However, the onlyreason given for the failure to interview plaintiff's witnesseswas that his request was unclear. Defendants assert that theywere unable to locate Guirsch because his name was misspelled andan incorrect cell location was listed in plaintiff's request.

We find the request was sufficiently clear that defendantscould have determined the identity of this witness. Plaintiffidentified the witness as "G. Guirch." The record showsplaintiff was in cell 204, while Guirsch was in 211. Defendants'assertion that they could not locate Guirsch is not crediblegiven the slight misspelling of his last name and the proximityof his cell to plaintiff's cell. We also note that any confusioncould have been clarified by simply asking plaintiff where thewitness was located.

An inmate's right to present the testimony of witnessesshould not be discounted because many times it is his onlyavailable means to disprove the charges of a prison guard. Whitlock v. Johnson, 153 F.3d 380 (7th Cir. 1998); Hayes v.Walker, 555 F.2d 625 (7th Cir. 1977). A reasonable effort tolocate the witness is not unduly burdensome given plaintiff'simportant interest in this matter.

Based on these circumstances, we conclude defendants' reasonfor failing to interview Guirsch--that the request was unclear--is not related to promoting institutional safety or correctionalgoals. Therefore, the failure to interview or call Guirsch totestify resulted in a violation of plaintiff's due processrights.

Defendants also contend that any violation of plaintiff'sdue process rights was harmless error. However, Guirsch'stestimony, if believed, could have shown plaintiff was notpresent in his cell when the eyeglasses were taken and destroyed. The failure to call Guirsch to testify cannot be deemed harmlesserror because his testimony could have proven plaintiff was notguilty of the charges.

Finally, we conclude defendants were required to act and hadthe authority to act to vindicate plaintiff's due process rightsin this matter. Accordingly, defendants are not entitled tojudgment as a matter of law. We reverse the trial court's ordergranting defendants' motion for summary judgment and remand thiscause for proceedings consistent with this order.

For the foregoing reasons, the judgment of the circuit courtof Will County is reversed, and the cause is remanded forproceedings consistent with this order.

Reversed and remanded.

HOLDRIDGE, J., concurs. BRESLIN, J., specially concurs.

I concur specially to express my disappointment and dismaythat the Department has denied this inmate his due processrights. Given the unusual name of the requested witness, tosuggest that it could not identify the witness is either anadmission of incompetence or an intentional denial of thisperson's basic constitutional rights. Either scenario isinexcusable.