Rule 23 order filed                    NO. 5-05-0451
April 10, 2007;
Motion to publish granted                  IN THE
June 4, 2007.
                            APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

VICENTE RODRIGUEZ, Inmate No. N70616, ) Appeal from the
                                       ) Circuit Court of
      Plaintiff-Appellant,             ) Alexander County.
                                       )
v.                                     ) No. 04-MR-11
                                       )
ILLINOIS PRISONER REVIEW BOARD,        ) Honorable
                                       ) Stephen L. Spomer,
      Defendant-Appellee.              ) Judge, presiding.
________________________________________________________________________

       JUSTICE DONOVAN delivered the opinion of the court:

       In February 2004, plaintiff, Vicente Rodriguez, inmate No. N70616 in the Illinois

Department of Corrections (Department), filed a pro se complaint seeking mandamus and

certiorari relief against defendant, the Illinois Prisoner Review Board (Board). He alleged

that when the Board approved the revocation of his good-conduct credits, he was deprived

of the procedural due process to which he was entitled. In March 2005, the Board filed a

motion to dismiss, which the circuit court granted. On appeal, plaintiff argues that the circuit

court erred in dismissing his complaint for mandamus relief on the Board's motion and that

it erroneously denied his motion for a default judgment. Plaintiff seeks the vacation of the

trial court's order dismissing his complaint and a remand of the cause for further proceedings.

       The caption of the case has been amended by the court to include plaintiff's

Department identification number.

                                      BACKGROUND

       Plaintiff is an inmate at Tamms Correctional Center (Tamms), one of the state's

maximum-security facilities. Department records, of which we may take judicial notice (see


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People v. Young, 355 Ill. App. 3d 317, 321 n.1, 822 N.E.2d 920, 924 n.1 (2005) (the court

may take judicial notice of information that the Department has provided on its Web site)),

disclose that he is serving a prison sentence of 40 years for murder on a 1986 Cook County

conviction (see People v. Rodriguez, 192 Ill. App. 3d 1105, 577 N.E.2d 201 (1989)

(unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)), as well as

sentences of five years on a 1991 Livingston County conviction for being a felon in

possession of a weapon in prison, two years on a 1993 Will County weapons conviction, and

three years on a 1996 Will County conviction for aggravated battery. These latter sentences

appear to have been ordered by the court to be served consecutively to the 1986 sentence.

Plaintiff's projected parole date is November 16, 2015. The record on appeal reveals the

following information.

       On February 26, 2004, plaintiff filed a pro se complaint seeking mandamus relief and

a common law writ of certiorari naming the Board as defendant. Plaintiff asserted that the

Board had revoked good-conduct credits without affording him the procedural due process

to which he was entitled under Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S.

Ct. 2963 (1974), Illinois statutory law, the Illinois Administrative Code, and the United

States Constitution. He contended that under section 3-3-2(a)(4) of the Unified Code of

Corrections (730 ILCS 5/3-3-2(a)(4) (West 2004)) he was entitled to 24 hours' advance

notice of a Board hearing at which it would consider the recommendation of the Director of

Corrections (Director) that he lose good-conduct credit, the opportunity to call witnesses and

present documentary evidence on his own behalf, and a summary statement from the Board

in which it set forth the evidence upon which it relied in reaching its decision and the reasons

for the disciplinary action that was taken. He sought a court order finding that the Board had

abrogated his right to due process through its failure to provide a hearing that comported with

Wolff. He also demanded the issuance of an order of mandamus to compel the Board to


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provide hearings that conformed with procedural due process as required by Wolff, the

issuance of a writ of common law certiorari "quashing" the revocation of his good-conduct

credit, and reimbursement for costs incurred in his pursuit of the litigation. Plaintiff

appended as "exhibit A" what appeared to be a conformed copy of a written request that he

allegedly made to the Tamms records office for records of revoked good-conduct credit.

Although the back of the conformed copy listed the alleged dates and prisons at which good-

conduct credit had been revoked between 1991 and 1996 and the dates upon which some

good-conduct credits had been restored at Tamms, he failed to attach to his petition any

disciplinary reports, adjustment committee summaries, grievances, appeals, or final Board

orders. It was thus impossible to ascertain with confidence when and for what plaintiff had

been disciplined by the Department and if or when the Board had actually approved the

recommended disciplinary action against plaintiff. On February 26, 2004, the Alexander

County circuit clerk corresponded with plaintiff and instructed him to complete a summons

form and return it for service.

       On March 8, 2005, more than a year later, plaintiff moved in the circuit court for a

default judgment against the Board because the Board had not yet responded to his February

2004 complaint. The record substantiates that a summons did not actually issue for the Board

until January 18, 2005, and that the Board was not served with process until January 26,

2005. A return of summons was filed with the court on February 1, 2005.

       On March 21, 2005, the Board filed a response to the motion for a default judgment.

The response was supported by an affidavit from the Board's counsel, a motion for leave to

file instanter a motion to dismiss plaintiff's complaint pursuant to section 2-615 of the Code

of Civil Procedure (735 ILCS 5/2-615 (West 2004)), and the motion to dismiss itself. The

Board's motion to dismiss alleged that the Board had not actually been served with summons

until January 26, 2005, and that its counsel, the Office of the Attorney General, first learned


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of the complaint when it received plaintiff's March 8, 2005, motion for a default judgment

and conferred with the Board. The Board argued that plaintiff's complaint was inadequate

to state a cause of action for mandamus relief. Citing Lucas v. Taylor, 349 Ill. App. 3d 995,

812 N.E.2d 72 (2004), it argued that plaintiff was not entitled to the due process protections

described in Wolff in actions taken by the Board and that thus the Board had not breached a

nondiscretionary ministerial duty, warranting the dismissal of plaintiff's complaint for

mandamus and certiorari relief. On March 21, 2005, the trial court granted the Board's

motion for leave to file its motion to dismiss instanter.

       On April 26, 2005, plaintiff filed a response to the Board's pleadings. He asserted that

Lucas was not dispositive of the issues raised because Lucas was wrongly decided and it had

misquoted and misinterpreted the Illinois Administrative Code and the Unified Code of

Corrections. On May 18, 2005, the court issued a comprehensive order in which it granted

the Board's motion to dismiss. It found that plaintiff had been granted the due process

required by Wolff in the adjustment committee proceedings that resulted in his loss of good-

conduct credit, that under the Lucas decision he was not entitled to a second hearing that

comported with Wolff prior to the Board's approval of the recommended loss of credit, and

that his complaint did not state a cause of action. The order did not address plaintiff's motion

for a default judgment. On June 17, 2005, plaintiff filed a notice of appeal without first

seeking a disposition by the court of his motion for a default judgment.

                               CONTENTIONS ON APPEAL

       On appeal, plaintiff contends that he was entitled to a default judgment against the

Board due to its failure to file a timely response to his complaint. He also argues that the

court misinterpreted statutory and case law when it granted the Board's motion to dismiss his

complaint for mandamus relief because he was absolutely entitled to a hearing that provided

him with full procedural due process under Wolff when the Board considered the Director's


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request for the ratification of the revocation of his good-conduct credit. He seeks the

vacation of the trial court's order dismissing his complaint and a remand for further

proceedings.

                                         DISCUSSION

                               I. Motion for Default Judgment

       Plaintiff admits that his motion for a default judgment was not ruled upon by the court

prior to the date that he filed his notice of appeal. A litigant's failure to obtain a ruling on a

motion does not translate into a denial of the motion by the court. Hadley v. Ryan, 345 Ill.

App. 3d 297, 303, 803 N.E.2d 48, 54 (2003). Moreover, it is the responsibility of the party

filing a motion to request the trial judge to rule on it, and when no ruling has been made on

a motion, the motion is presumed to have been abandoned absent circumstances indicating

otherwise. Commerce Trust Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135, 142, 851

N.E.2d 131, 137 (2006); Herricane Graphics, Inc. v. Blinderman Construction Co., 354 Ill.

App. 3d 151, 158-59, 820 N.E.2d 619, 626 (2004). A subsequently filed notice of appeal

following the failure by a litigant to obtain a ruling on a motion serves as an abandonment

of the previously filed motion. See Jackson v. Alverez, 358 Ill. App. 3d 555, 563-64, 831

N.E.2d 1159, 1166 (2005) (the party was deemed to have abandoned a motion for leave to

amend her complaint by filing a notice of appeal without first ensuring that the trial court had

ruled on the motion for leave to amend). Plaintiff's failure to obtain a ruling from the trial

court on his motion for a default judgment prior to filing his notice of appeal resulted in his

abandonment of the motion and created a procedural default of any issue related to that

motion for the purpose of appeal. We thus need not address this issue on appeal.

                         II. Propriety of Grant of Motion to Dismiss

       The grant of a motion to dismiss for a failure to state a cause of action filed pursuant

to section 2-615 or a motion for an involuntary dismissal based on defects or defenses in the


                                                5
pleadings pursuant 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West

2004)) is subject to de novo review. White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278,

282, 856 N.E.2d 542, 546 (2006). Where the dismissal was proper as a matter of law, we

may affirm the circuit court's decision on any basis appearing in the record. MKL Pre-Press

Electronics/MKL Computer Media Supplies, Inc. v. La Crosse Litho Supply, LLC, 361 Ill.

App. 3d 872, 877, 840 N.E.2d 687, 691 (2005).

                                  A. Mandamus Complaint

       Mandamus is an extraordinary civil remedy that will be granted to enforce, as a matter

of right, the performance of official nondiscretionary duties by a public officer. Lee v.

Findley, 359 Ill. App. 3d 1130, 1133, 835 N.E.2d 985, 987 (2005). A mandamus action is

not an appropriate means for seeking judicial review of an administrative proceeding.

Newsome v. Illinois Prison Review Board, 333 Ill. App. 3d 917, 920, 776 N.E.2d 325, 327

(2002). Mandamus will issue only where the plaintiff has fulfilled his burden (see Mason

v. Snyder, 332 Ill. App. 3d 834, 840, 774 N.E.2d 457, 461 (2002)) to set forth every material

fact needed to demonstrate that (1) he has a clear right to the relief requested, (2) there is a

clear duty on the part of the defendant to act, and (3) clear authority exists in the defendant

to comply with an order granting mandamus relief. Baldacchino v. Thompson, 289 Ill. App.

3d 104, 109, 682 N.E.2d 182, 186 (1997). A "material fact" is one that "is significant or

essential to the issue or the matter at hand." Black's Law Dictionary 611 (7th ed. 1999).

Because Illinois is a fact-pleading jurisdiction, a plaintiff is required to set forth a legally

recognized claim and plead facts in support of each element that bring the claim within the

cause of action alleged. Beahringer v. Page, 204 Ill. 2d 363, 369, 789 N.E.2d 1216, 1221

(2003). To survive a motion to dismiss for the failure to state a cause of action, a complaint

must be both legally and factually sufficient. A liberal construction of pleadings will not

allow a litigant to resort to notice pleading, and conclusions of fact will not suffice to state


                                               6
a cause of action regardless of whether they generally inform the defendant of the nature of

the claim against him. Turner-El v. West, 349 Ill. App. 3d 475, 485, 811 N.E.2d 728, 737

(2004); Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 167,

788 N.E.2d 740, 750 (2003). The court will not fill in all the blanks in a pro se complaint.

Turner-El, 349 Ill. App. 3d at 479, 811 N.E.2d at 733. We review de novo the granting of

a motion to dismiss a petition for mandamus. Howell v. Snyder, 326 Ill. App. 3d 450, 453,

760 N.E.2d 1009, 1011 (2001).

                                B. Sufficiency of Complaint

       Initially, we observe that plaintiff did not assert below, nor does he contend on appeal,

that the disciplinary proceedings that preceded the Director's referral of the revocation of his

good-conduct credits to the Board for review deprived him of the procedural due process to

which he was entitled under Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct.

2963 (1974), sections 3-8-7(e)(1) through (e)(5) of the Unified Code of Corrections (730

ILCS 5/3-8-7(e)(1) through (e)(5) (West 2004)), or sections 504.80(b), (d), (f), (h), and (l)

of the Illinois Administrative Code (20 Ill. Adm. Code §§504.80(b), (d), (f), (h), (l) (Conway

Greene CD-ROM May 2006)). He fails to claim that he lacked notice of and the opportunity

to defend against a disciplinary charge on the institutional level or that the adjustment

committee, the chief administrative officer, the Director, or the administrative review board

somehow abrogated his right to procedural due process. This leads to the conclusion that he

tacitly admits that his liberty interest in his good-conduct credit (see Wolff, 418 U.S. at

557-58, 41 L. Ed. 2d at 952, 94 S. Ct. at 2975) was protected up to and including the point

at which the Director sent the proposed revocation of his good-conduct credit to the Board

for approval.

       Rather, plaintiff claims that he was again entitled to complete procedural due process

as described by Wolff when the Board reviewed the revocation of his good-conduct credit as


                                               7
the final step in the revocation process: 24 hours' notice prior to the Board hearing, the

chance to appear in person and defend against the charge, the opportunity to call witnesses

and present documentary evidence on his behalf, and the right to receive a summary of the

Board's findings and the evidence upon which it relied in reaching its conclusion. Wolff, 418

U.S. at 564-66, 41 L. Ed. 2d at 956, 94 S. Ct. at 2979. Plaintiff contends that the legislature's

grant of power to the Board by statute leads to the conclusion that the Board is a fact-finding

body that is empowered to "hold[] hearings and decide[] whether the Department[']s

allegations are true," not merely a reviewing body.          He also claims that Lucas was

erroneously decided due to an underlying misapprehension of the law by the appellate court.

       The disciplinary process set out in statutory and administrative regulations, which

carry the force of law (see Hadley v. Department of Corrections, 362 Ill. App. 3d 680, 688,

840 N.E.2d 748, 756 (2005)), ensures that inmates who are subjected to disciplinary actions

are provided procedural due process in adjustment committee hearings in compliance with

Wolff (see 730 ILCS 5/3-8-7 (West 2004); 20 Ill. Adm. Code §504.80 (Conway Greene CD-

ROM May 2006)). Although the Unified Code of Corrections and the Illinois Administrative

Code expressly set out the procedural aspects of parole hearings before the Board where the

Board acts as a fact finder, they do not set out the procedure by which the Board reviews

requests from the Director for the ratification of the revocation of good-conduct credit.

       The Illinois Supreme Court discussed in People v. McClure, 218 Ill. 2d 375, 843

N.E.2d 308 (2006), the methods by which legislative intent may be discerned:

              "The cardinal rule of statutory construction is to ascertain and give effect to the

       intent of the legislature. [Citation.] The best evidence of legislative intent is the

       language of the statute. [Citation.] When possible, the court should interpret the

       language of a statute according to its plain and ordinary meaning. [Citation.] If intent

       can be determined from the plain language of the statute, there is no need to resort to


                                               8
       interpretive aids. [Citation.] Courts are to construe the statute as a whole, so that no

       part of it is rendered meaningless or superfluous. [Citation.] A court should not

       depart from the language of the statute by reading into it exceptions, limitations, or

       conditions that conflict with the intent of the legislature." McClure, 218 Ill. 2d at

       381-82, 843 N.E.2d at 312.

       The legislature statutorily established the Board as an entity that is independent of the

Department and, inter alia, serves as "the board of review for cases involving the revocation

of good[-]conduct credits or a suspension or reduction in the rate of accumulating such

credit." (Emphasis added.) 730 ILCS 5/3-3-1(a)(2) (West 2004). The plain words of the

statute mandate that the Board serves as a board of review, not a fact finder, when it

considers the Director's request for a ratification of disciplinary actions. This conclusion has

been reinforced by case law. In In re M.S., 239 Ill. App. 3d 938, 606 N.E.2d 768 (1992), the

court underscored the fact that the adjustment committee that hears disciplinary infractions

at the facility level "acts as a fact-finding body and also provides recommendations on how

much good time an inmate should lose" (emphasis added) and that following the Director's

approval of a recommendation for the loss of more than one month of credit at a time or more

than 30 days' credit in a given calendar year, "[a]ny greater loss of good time must be

submitted to the Prisoner Review Board for its review and final determination" (emphasis

added). In re M.S., 239 Ill. App. 3d at 941, 606 N.E.2d at 770. In Lucas, the court

concluded: "Based on the overall framework of the applicable statutes and regulations, the

adjustment committee is the body designated to hear and decide inmate disciplinary reports

and provide inmates with due process if good-conduct credits are revoked. *** On the other

hand, the [Board's] role is not one of a fact finder but as the 'board of review for cases

involving the revocation of good[-]conduct credits.' 730 ILCS 5/3-3-1(a)(2) (West 2002)."

(Emphasis added.) Lucas, 349 Ill. App. 3d at 1002, 812 N.E.2d at 78.


                                               9
       The lack of the Board's ability to serve as an independent fact finder or to increase the

number of days' credit lost by an inmate is a pivotal issue. The due process protection

described in Wolff is available in proceedings that lead to the recommendation to revoke

good-conduct credits because inmates have a liberty interest in good-conduct credits, the loss

of which affects the length of their incarceration. Under Wolff, due process requires the

government to give the inmate an opportunity for a hearing before good-conduct credit is

revoked as a punishment for violating prison rules. As the court observed in People v.

Shevock, 353 Ill. App. 3d 361, 818 N.E.2d 921 (2004), "The hearing, however, should be

'before the *** tribunal empowered to perform the judicial function involved.' " Shevock,

353 Ill. App. 3d at 366, 818 N.E.2d at 926 (quoting Baltimore & Ohio R.R. Co. v. United

States, 298 U.S. 349, 368-39, 80 L. Ed. 1209, 1224, 56 S. Ct. 797, 807 (1936)). With regard

to plaintiff's due process claim, the "judicial function involved" was the adjustment

committee's consideration of the facts before it, its finding that he had violated disciplinary

rules, and its recommendation that the revocation of good-conduct credits was appropriate

for the offense.   The Board's ratification of that loss of good-conduct credit on the

recommendation of the Director was not a part of the judgment. Because the Board can only

reduce or ratify the recommended amount of revoked credit and is without power to extend

or expand the amount of time that an inmate may be incarcerated, it cannot deprive him of

his liberty interest in good-conduct credit by approving the Director's recommendation. The

Board "merely provides an 'extra layer of procedural protection' " appended to the

constitutionally sufficient Department disciplinary proceedings and appeal process. Lucas,

349 Ill. App. 3d at 1004, 812 N.E.2d at 79 (quoting United States ex rel. Duane v. Illinois

Prisoner Review Board, No. 89-C-7946, slip op. at ___ (N.D. Ill. July 3, 1990)

(memorandum opinion and order)). Plaintiff was therefore not entitled to full procedural due

process under Wolff when the Board approved the disciplinary action that was recommended


                                              10
by the Director. It follows that plaintiff was not entitled to an order of mandamus or

certiorari.



                                     CONCLUSION

       For the foregoing reasons, the grant of the Board's motion to dismiss is affirmed.



       Affirmed.



       CHAPMAN and WEXSTTEN, JJ., concur.




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