Brown v. Morrison

• Decision Date: 14 August 1989
• Docket Number: No. 5-88-0556,5-88-0556
• Citation: 134 Ill.Dec. 801,187 Ill.App.3d 37,542 N.E.2d 1308
• Parties: , 134 Ill.Dec. 801 David L. BROWN, Plaintiff-Appellant, v. Tom MORRISON, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1308

542 N.E.2d 1308

187 Ill.App.3d 37, 134 Ill.Dec. 801

David L. BROWN, Plaintiff-Appellant, v. Tom MORRISON, et al., Defendants-Appellees.

No. 5-88-0556.

Appellate Court of Illinois Fifth District.

Aug. 14, 1989.

David L. Brown, Menard, pro se.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago, for defendants-appellees (Jennifer A. Keller, Asst. Atty. Gen., of counsel.)

Justice HARRISON delivered the opinion of the court:

On July 1, 1988, plaintiff, David L. Brown, an inmate at Menard Correctional Center, filed a pro se petition seeking a writ of mandamus directing defendants to vacate an adverse finding and sanctions imposed as a result of disciplinary proceedings taken against him. He also prayed that three defendants be discharged and sought damages from all defendants. Defendants include two correctional officers, three members of the disciplinary committee, a hearing officer and the warden of the Menard facility.

On August 10, 1988, defendants moved to dismiss plaintiff's petition for failure to state a cause of action or entitlement to relief. The motion was supported by plaintiff's written admissions, the correctional officers' reports, the hearing officer's report and the committee's summary report. Plaintiff filed a response to defendant's motion and a supporting memorandum of law. On September 2, 1988, the circuit court dismissed plaintiff's petition. The sole issue on appeal is whether the circuit court properly dismissed plaintiff's petition for a writ of mandamus. We reverse and remand.

In this case, defendants failed to designate the provision of the Code of Civil Procedure pursuant to which their motion to dismiss was brought, as should have been done. The motion speaks of failure to state a cause of action, a matter properly raised under section 2-615 (Ill.Rev.Stat.1987, ch. 110, par. 2-615). A section 2-615 motion admits all well-pleaded facts and attacks only the legal sufficiency of the complaint. (Longust v. Peabody Coal Company (1986), 151 Ill.App.3d 754, 756, 104 Ill.Dec. 436, 437, 502 N.E.2d 1096, 1097.) The thrust of the defendants' argument here, however, was not that the allegations in plaintiff's petition were facially insufficient to state a valid cause of action, but that the facts underlying plaintiff's petition were such that plaintiff could not ultimately prove a right to issuance of a writ of mandamus. That is why they submitted the various documents referred to above.

These documents were clearly taken into account by the trial court in reaching its decision. There can be no dispute that consideration of the documents would be improper under section 2-615 (Ill.Rev.Stat.1987, ch. 110, par. 2-615). The only other possible explanation for the court's action was that it believed that defendants meant to proceed under section 2-619(a)(9) of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(9)), which provides that a defendant may move for dismissal on the grounds that "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." If the trial court based its decision on this provision, it was again in error.

"Affirmative matter" within the meaning of section 2-619(a)(9) (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(9)) is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. It must, however, be something more than evidence offered to refute a well-pleaded fact in the complaint, for, as in the case of a motion under section 2-615 (Ill.Rev.Stat.1987, ch. 110, par. 2-615), such well-pleaded facts must be taken as true for the purposes of a motion to dismiss under section 2-619(a)(9) (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(9)). (Longust v. Peabody Coal Company (1986), 151 Ill.App.3d 754, 757, 104 Ill.Dec. 436, 438, 502 N.E.2d 1096, 1098.) In this case, that "something more" is absent. All the defendants have attempted to do through their motion is negate the factual basis upon which plaintiff has premised his request for issuance of a writ of mandamus. We note, moreover, that the evidence submitted by defendan...