                               Illinois Official Reports

                                      Appellate Court



                          Carroll v. Akpore, 2014 IL App (3d) 130731



Appellate Court          RONNIE CARROLL, Plaintiff-Appellant, v. KEVWE AKPORE and
Caption                  SALVADOR GODINEZ, Defendants-Appellees.


District & No.           Third District
                         Docket No. 3-13-0731


Rule 23 Order filed      September 30, 2014
Motion to publish
allowed                  November 25, 2014
Opinion filed            November 25, 2014


Held                       The trial court’s dismissal of an inmate’s mandamus petition requiring
(Note: This syllabus defendants, the warden of the facility in which he was held and the
constitutes no part of the Director of the Department of Corrections, to comply with the
opinion of the court but statutory food preparation requirements was reversed and remanded,
has been prepared by the since the record showed that the trial court summarily dismissed the
Reporter of Decisions petition before the named defendants could be served, but in such
for the convenience of situations, the Code of Civil Procedure provides for the issuance of
the reader.)               summons by the circuit clerk and does not provide for summary
                           dismissal prior thereto; furthermore, while the Illinois Supreme
                           Court’s decision in Shellstrom provides that a mandamus petition may
                           be summarily dismissed if the relief sought is cognizable in a
                           postconviction petition and the petition could be dismissed as
                           frivolous and patently without merit, the matter here could not be
                           addressed in a postconviction petition, and the cause was remanded
                           for service on defendants.


Decision Under           Appeal from the Circuit Court of Knox County, No. 13-MR-97; the
Review                   Hon. Paul L. Mangieri, Judge, presiding.
     Judgment                  Reversed and remanded.


     Counsel on                Ronnie Carroll, of Galesburg, appellant pro se.
     Appeal
                               No brief filed for appellees.



     Panel                     JUSTICE HOLDRIDGE delivered the judgment of the court with
                               opinion.
                               Justices Schmidt and O’Brien concurred in the judgment and opinion.


                                                 OPINION

¶1         The plaintiff, Ronnie Carroll, an inmate at the Hill Correctional Center (HCC), filed a
       pro se mandamus petition against Kevwe Akpore, HCC warden, and Salvador Godinez,
       Director, Department of Corrections (DOC). The petition alleged that DOC and HCC were not
       in compliance with certain statutory requirements regarding sanitary food preparation at HCC.
       410 ILCS 650/10 (West 2010). Plaintiff asked the trial court to issue an order of mandamus
       requiring the defendants to comply with those statutory food preparation requirements. Within
       days of the plaintiff’s filing of this petition with the circuit clerk, the trial court reviewed the
       petition and sua sponte entered an order dismissing the petition. The court took this action
       before the named defendants or anyone else connected with the DOC was served. Accordingly,
       no attorney ever appeared on behalf of the named defendants or the DOC. The plaintiff filed a
       motion to vacate the order of dismissal, which was promptly denied by the trial court. The
       plaintiff then filed a timely notice of appeal. It appears from the record that the defendants,
       having never been served with summons, were not notified of the notice of appeal.
¶2         This appeal is unusual because the appellant appears pro se and no one appears on behalf of
       the appellees. However, because the issue is one that can easily be decided without the aid of
       an appellee’s brief, we can address the matter. Mason v. Snyder, 332 Ill. App. 3d 834 (2002).
       We further note that the failure to serve a copy of a notice of appeal upon an opposing party
       does not deprive the appellate court of jurisdiction since the only jurisdictional step in
       appealing a final judgment is the filing of a notice of appeal. Leneehan v. Township Officers
       Electoral Board of Schaumburg Township, 2013 IL App (1st) 130619, ¶ 27 (citing Simmons v.
       Chicago Housing Authority, 267 Ill. App. 3d 545, 551 (1994)). The record herein established
       that the trial court issued a final and appealable order and that the plaintiff filed a timely notice
       of appeal. We therefore have jurisdiction to address the plaintiff’s appeal.
¶3         The issue on appeal is a simple one: can the trial court dismiss sua sponte a petition seeking
       mandamus relief. The court in Mason held that a trial court has an inherent authority to dismiss
       any civil complaint sua sponte. Mason, 332 Ill. App. 3d at 840. However, more recent
       decisions have called this holding into question. In People v. Shellstrom, 345 Ill. App. 3d 175
       (2003), the appellate court rejected the inherent authority analysis and held that the mandamus


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     statute, which is contained in the Code of Civil Procedure (735 ILCS 5/14-103 (West 2010))
     (the Code) does not authorize the trial court to summarily dismiss a complaint for mandamus.
     Shellstrom, 345 Ill. App. 3d at 177. Instead, the Code provides a clear procedural framework
     for a trial court to follow when a mandamus petition is filed. The statutory framework includes
     issuance of summons by the circuit clerk and does not provide for summary dismissal prior to
     issuance of a summons. Id. On review, however, our supreme court in Shellstrom held that a
     petition labeled as a mandamus petition could be summarily dismissed if the relief sought was
     cognizable in a postconviction petition, even if the petitioner did not proceed under the
     Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)). People v. Shellstrom,
     216 Ill. 2d 45, 50 (2005). Our supreme court held that, since the relief sought in the mandamus
     petition was relief that could have been sought in a postconviction petition, it was proper for
     the trial court to consider the petition under the postconviction framework and dismiss the
     petition as being frivolous and patently without merit. Id.
¶4       In the instant matter, the relief sought by the mandamus petition was to require the
     defendants to comply with certain statutory requirements regarding food preparation in the
     prison cafeteria. The relief sought by the petitioner was, clearly, not an issue that could be
     addressed in a postconviction petition. The trial court, therefore, erred in dismissing the
     mandamus petition without allowing the petition to be served upon the defendants, and the
     cause must be remanded to the circuit court to allow the matter to proceed. In remanding the
     matter, we note that we have not addressed the merits of the petition. The fact that the petition
     may have no merit does not allow the trial court to disregard the procedural framework
     provided in the Code and the mandamus statute. Shellstrom, 345 Ill. App. 3d at 179.
¶5       For the foregoing reasons, the judgment of the circuit court of Knox County is reversed,
     and the cause is remanded for service of the petition upon the defendants.

¶6      Reversed and remanded.




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