                                         2015 IL App (3d) 130728

                                 Opinion filed June 23, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     RONALD RUHL, ROBERT HERNANDEZ          )     Appeal from the Circuit Court
     and DOUGLAS OAKS,                      )     of the 12th Judicial Circuit,
                                            )     Will County, Illinois.
           Plaintiffs-Appellants,           )
                                            )
           v.                               )     Appeal No. 3-13-0728
                                            )     Circuit No. 12-MR-1674
     THE DEPARTMENT OF CORRECTIONS,         )
                                            )
           Defendant-Appellee.              )     Honorable Roger Rickmon,
                                            )     Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Holdridge and Wright concurred in the judgment and opinion.

                                                OPINION

¶1          Plaintiffs, Ronald Ruhl, Robert Hernandez and Douglas Oaks, inmates incarcerated in the

     Illinois Department of Corrections (DOC), filed a petition for writ of mandamus against the

     DOC in the Will County circuit court. The complaint alleged that the DOC had been

     overcharging plaintiffs for goods sold at the prison commissary in violation of section 3-7-2a of

     the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-7-2a (West 2008)).

¶2          The DOC filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil

     Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), arguing that the inmates lacked

     standing to enforce section 3-7-2a of the Unified Code against it.
¶3          The trial court granted the DOC’s motion to dismiss.

¶4          Plaintiffs appeal, arguing that this court’s recent decision in Jackson v. Randle, 2011 IL

     App (4th) 100790, is flawed and they do, in fact, have standing to enforce the relevant statutory

     provision.

¶5          We affirm.

¶6                                                 FACTS

¶7          In August 2012, Ruhl, an inmate in the DOC’s custody incarcerated at the Stateville

     Correctional Center in Joliet, filed a complaint for mandamus relief against the DOC. Ruhl

     alleged that the DOC had been “illegally” overcharging him for goods sold at the prison

     commissary by marking up the price of those goods beyond the percentage price caps outlined in

     section 3-7-2a of the Unified Code (730 ILCS 5/3-7-2a (West 2008)). Section 3-7-2a allows an

     additional charge of up to 35% for tobacco products and up to 25% for nontobacco products.

     According to Ruhl, the Illinois Auditor General determined in a report that the DOC had been

     exceeding the statutorily-allowed maximum markup on goods sold to inmates by 9% in its prison

     commissaries since November 1, 2005. He alleged that the DOC’s failure to comply with

     section 3-7-2a had resulted in its “illegal procurement” of $576.62 from his inmate trust fund

     account.

¶8          Ruhl’s petition further asserted that he had attempted to seek relief for the DOC’s

     violation through various avenues. He initially sought relief through the prison’s grievance

     process, which ultimately resulted in the Administrative Review Board finding “no merit” to his

     grievance. Next, he sought “a remedy through the Illinois Court of Claims” that he alleged

     resulted in a rejection over subject matter jurisdiction, with a final ruling issued on May 8, 2012.




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       Finally, Ruhl alleged that he had “contacted several different government agencies” for

       assistance in compelling the DOC to comply with section 3-7-2a, all to no avail.

¶9            As for relief, Ruhl’s petition sought a ruling that the DOC’s actions in exceeding the

       allowed statutory markup on commissary items was unlawful as contrary to the language of

       section 3-7-2a. He requested the court enter an order: (1) compelling the DOC to comply with

       section 3-7-2a; (2) crediting his inmate trust fund account with all “illgotten funds” since

       November 1, 2005; and (3) compelling payment of all his costs and fees.

¶ 10          The DOC moved to dismiss Ruhl’s complaint pursuant to section 2-619(a)(9) of the Code

       (735 ILCS 5/2-619(a)(9) (West 2012)). The DOC contended that inmates lacked standing to

       enforce section 3-7-2a of the Unified Code. It explained that in Jackson v. Randle, 2011 IL App

       (4th) 100790, the Fourth District affirmed the dismissal of an inmate’s complaint, nearly

       identical to Ruhl’s, on the basis that inmates lack standing to enforce the percentage price caps

       for commissary goods outlined in section 3-7-2a of the Unified Code against the DOC. Ruhl

       opposed the motion to dismiss, to which the DOC responded.

¶ 11          During briefing on the DOC’s motion to dismiss, plaintiffs Hernandez and Oaks, also

       inmates in the DOC’s custody incarcerated at the Stateville Correctional Center, each filed

       complaints for mandamus relief against the DOC nearly identical to the petition filed by Ruhl.

       The allegations in Oaks’ and Hernandez’s complaints mirrored those in Ruhl’s with the

       exception that neither Oaks nor Hernandez alleged they had pursued an action in the Court of

       Claims or sought the assistance of other governmental agencies in compelling the DOC’s

       compliance.

¶ 12          Oaks alleged that the DOC illegally procured more than $361 from his inmate trust fund

       account, while Hernandez alleged that more than $537 had been illegally procured from his



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       inmate trust fund account. Both Oaks and Hernandez sought relief identical to Ruhl’s. The

       DOC separately moved to dismiss Oaks’ petition for the same reasons it sought dismissal of

       Ruhl’s.

¶ 13             In April of 2013, Ruhl moved to consolidate Oaks’ and Hernandez’s cases with his “as a

       matter of judicial economy and convenience” because their complaints were “essentially

       identical” to his. Ruhl sought consolidation to “avoid all parties submitting essentially the same

       filings, arguments, etc., and the court issuing multiple rulings on this same matter.” Oaks and

       Hernandez supported Ruhl’s motion to consolidate by affidavits, each averring that he was in

       favor of the consolidation “for reasons of judicial economy and convenience.” On April 25,

       2013, the trial court consolidated the three cases.

¶ 14             The trial court heard argument on the DOC’s motion to dismiss in June and July of 2013.

       On July 25, 2013, the court stated that it had “to grant the motion to dismiss” though it did not

       “necessarily agree with the rationale of the Jackson court.” The court further stated that it had

       “given [its] preliminary determination” and that it would “issue a written opinion”, but that the

       “appeal time starts to run when I issue and sign a written order, so right now there is no 30 days

       running.”

¶ 15             Plaintiffs filed a notice of appeal on September 6, 2013.

¶ 16             On December 31, 2013, the trial court entered a two-page order, noting the actions had

       been consolidated and recounting the parties’ arguments. The court granted the DOC’s motion

       to dismiss, reasoning that under the rationale of Jackson, section 3-7-2a of the Unified Code did

       not confer upon plaintiffs the right to challenge the DOC’s policies or commissary prices.

¶ 17                                                ANALYSIS




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¶ 18          Plaintiffs argue that the trial court erred in granting the DOC’s motion to dismiss, where

       plaintiffs did have standing to enforce section 3-7-2a and the Fourth District’s decision in

       Jackson is contrary to our supreme court’s decision in Hadley v. Illinois Department of

       Corrections, 224 Ill. 2d 365 (2007). We disagree.

¶ 19          Section 3-7-2a of the Unified Code provides, in pertinent part, as follows:

                      “If a facility maintains a commissary or commissaries serving

                      inmates, the selling prices for all goods shall be sufficient to cover

                      the costs of the goods and an additional charge of up to 35% for

                      tobacco products and up to 25% for non-tobacco products. The

                      amount of the additional charges for goods sold at commissaries

                      serving inmates shall be based upon the amount necessary to pay

                      for the wages and benefits of commissary employees who are

                      employed in any commissary facilities of the Department. The

                      Department shall determine the additional charges upon any

                      changes in wages and benefits of commissary employees as

                      negotiated in the collective bargaining agreement. ***

                           Items purchased for sale at any such commissary shall be

                      purchased, wherever possible, at wholesale costs. If a facility

                      maintains a commissary or commissaries as of the effective date of

                      this amendatory Act of the 93rd General Assembly, the

                      Department may not contract with a private contractor or vendor to

                      operate, manage, or perform any portion of the commissary

                      services. The Department may not enter into any such contract for



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                       commissary services at a facility that opens subsequent to the

                       effective date of this amendatory Act of the 93rd General

                       Assembly.” 730 ILCS 5/3-7-2a (West 2008).

¶ 20           First, we note that plaintiffs brought their complaint in the form of a mandamus petition.

       Mandamus is an extraordinary remedy that is granted to enforce the performance of a public

       officer’s official nondiscretionary duties as a matter of right. Rodriguez v. Illinois Prisoner

       Review Board, 376 Ill. App. 3d 429, 433 (2007). For mandamus to issue, a plaintiff must

       establish material facts that demonstrate: (1) his clear right to the requested relief; (2) a clear

       duty on the defendant to act; and (3) clear authority existing in the defendant to comply with an

       order granting mandamus relief. Id. at 433-34. We review orders dismissing a petition for

       mandamus and orders granting a defendant’s motion to dismiss pursuant to section 2-619(a)(9)

       de novo. See id. at 434; Lacey v. Village of Palatine, 232 Ill. 2d 349, 359 (2009).

¶ 21           According to the State, whether plaintiffs have a clear right to the relief they request turns

       on whether or not they have standing to enforce the percentage price caps for commissary goods

       outlined in section 3-7-2a of the Unified Code. “Generally, the doctrine of standing is designed

       to ‘preclude persons who have no interest in a controversy from bringing suit.’ ” Jackson v.

       Randle, 2011 IL App (4th) 100790, ¶ 14 (quoting Glisson v. City of Marion, 188 Ill. 2d 211, 221

       (1999)).

¶ 22           As the State points out, both in its motion to dismiss and on appeal, the Jackson court

       recently decided this exact issue. While Jackson did not seek relief through a mandamus

       petition, his arguments were identical to plaintiffs’ here, i.e., the DOC overcharged him and

       other inmates in violation of section 3-7-2a of the Unified Code. 730 ILCS 5/3-7-2a (West

       2008); Jackson, 2011 IL App (4th) 100790, ¶ 16. The Jackson court rejected this argument,



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       stating that section 3-7-2a “does not expressly confer standing on inmates—or anyone else, for

       that matter—to enforce the cost percentages outlined therein.” Id.

¶ 23          Relying heavily on Ashley v. Snyder, 316 Ill. App. 3d 1252, 1258-59 (2000), the Jackson

       court went on to note that DOC regulations and the Unified Code were designed to provide

       guidance to prison officials in the administration of prisons, not to create more rights for inmates

       than those that are constitutionally required. “Inmates have a constitutional right to adequate

       water, shelter, food, drinking water, clothing, sanitation, and medical care, personal safety,

       reasonable access to courts, and the reasonable opportunity to exercise religious freedom.”

       Jackson, 2011 IL App (4th) 100790, ¶ 17 (citing Ashley, 316 Ill. App. 3d at 1258-59).

       Conspicuously absent from this list is an inmate’s right to commissary items at a specific price,

       or commissary items generally.

¶ 24          Plaintiffs make a sweeping reference to due process, arguing that the notion that inmates

       do not have standing to enforce the statute “defies the basic principles of common law and due

       process.” To the extent that this constitutes a due process argument, it is easily dispelled. In

       Duane v. Hardy, 2012 IL App (3d) 110845, ¶¶ 14-15, this court held that plaintiff had no

       enforceable rights under section 3-7-2(c), which plaintiff argued entitled him to one hour out-of-

       cell exercise daily. The court noted that “[p]rison regulations, including statutory provisions, do

       not confer rights on inmates or provide a basis for an inmate’s constitutional claims.” Id. ¶ 15

       (citing Dupree v. Hardy, 2011 IL App (4th) 100351, ¶¶ 25-26). Furthermore, and relying on

       Jackson, 2011 IL App (4th) 100790, ¶ 17, the Duane court found that because plaintiff was not

       entitled under the statute to one hour of daily exercise out of his cell, he cannot claim a due

       process violation based on the DOC’s alleged failure to provide him notice and an opportunity to

       be heard before he is deprived of the claimed right. Duane, 2012 IL App (3d) 110845, ¶ 16.



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¶ 25           We find no reason to deviate from the holding of Jackson. We similarly find that

       plaintiffs here have no constitutionally protected rights to commissary items at a specified price,

       nor does section 3-7-2a function to create one. Indeed, they have no right to a commissary at all,

       where the creation and maintenance of a prison commissary falls completely within the

       discretion of the DOC. See 730 ILCS 5/3-7-2a (West 2012). Plaintiffs failed to establish a clear

       right to the relief requested; therefore, the trial court did not err in dismissing their mandamus

       petition.

¶ 26           Finally, we reject plaintiffs’ claim that Jackson is contrary to our supreme court’s

       decision in Hadley v. Illinois Department of Corrections, 224 Ill. 2d 365 (2007). In Hadley, the

       plaintiff took issue with the DOC’s interpretation of section 3-6-2(f) of the Unified Code, which

       exempts an “ ‘indigent’ ” inmate from a $2 copayment for nonemergency medical and dental

       treatment, providing for recoupment of such copayment against an inmate’s current or future

       funds in his inmate trust account. (Emphasis omitted.) Id. at 372-73 (quoting 730 ILCS 5/3-6-

       2(f) (West 2004)). To implement the provisions of section 3-6-2(f), the DOC adopted certain

       administrative rules. Id. at 373. Our supreme court concluded that the DOC’s definition of “

       ‘indigent’ ” prisoner within its administrative rules conflicted with the Unified Code. Id. at 376.

¶ 27           Hadley is thus easily distinguishable from the case at bar, where we are not confronted

       with administrative rules or definitions that conflict with the Unified Code. Furthermore, the

       court’s analysis was limited to the statutory interpretation issue; there was no argument or

       discussion regarding standing or whether the Code provided an inmate with an enforceable cause

       of action. The holding of Jackson regarding section 3-7-2a is thus not contrary to our supreme

       court’s decision in Hadley.




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¶ 28           We, accordingly, find that the trial court did not err in dismissing plaintiffs’ mandamus

       petition.

¶ 29                                            CONCLUSION

¶ 30           For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 31           Affirmed.




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