Gay v. Frey
| Decision Date | 13 March 2009 |
| Docket Number | No. 5-07-0561.,5-07-0561. |
| Citation | 905 N.E.2d 333,388 Ill. App.3d 827 |
| Parties | Anthony T. GAY, Inmate No. B62251, Plaintiff-Appellant, v. R. Shelton FREY, Alan Reagan, John Branch, Homer Markel, Charles Roper, Kelly Rhodes, and Marvin Powers, M.D., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Anthony Gay, Tamms, IL, pro se.
Craig L. Unrath, Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, IL, Theresa M. Powell, Springfield, IL, for Marvin Powers, M.D.
Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Elaine Wyder-Harshman, Assistant Attorney General, Chicago, IL, for R. Shelton Frey, Alan Reagan, John Branch, Homer Markel, Charles Roper, and Kelly Rhodes.
When basic, ministerial tasks are not competently performed, otherwise routine matters turn into problems. This case illustrates what happens when pleadings are not timely file-stamped and placed into the court file by the circuit clerk's office. The plaintiff, Anthony T. Gay, inmate No. B62251 in the Department of Corrections (Department), appeals from the September 24, 2007, order of the circuit court of Alexander County that denied his motion to vacate the circuit court's prior order dismissing his complaint for mandamus relief on the motions of the defendants, R. Shelton Frey, the warden of Tamms Correctional Center (Tamms), correctional officers Alan Reagan, John Branch, Homer Markel, and Charles Roper, clinical psychologist Kelly Rhodes, and Marvin Powers, M.D. The plaintiff seeks the reversal of the circuit court's order and the remand of the case to the circuit court for further proceedings.
The caption of the case has been amended by the court to include the plaintiff's middle initial and his inmate identification number as an aid in identification.
The plaintiff is an inmate at the supermax prison in Tamms. On April 18, 2006, the plaintiff filed a pro se complaint for mandamus relief pursuant to section 14-101 et seq. of the Code of Civil Procedure (Code) (735 ILCS 5/14-101 et seq. (West 2004)). He asserted that he was entitled to an order of mandamus directing the defendants to remove him from controlled-feeding status, ordering them to impose controlled-feeding status only for food-related transgressions, and ordering them to provide him with medical treatment by a nurse outside of his cell for self-inflicted cuts to his penis and inner thighs. He also sought monetary damages and orders from the court mandating either the discontinuation or the limitation by the Department of the controlled-feeding policy and the cessation of disciplinary restrictions on medical care in the prison.
On June 5, 2006, defendants Frey, Reagan, Branch, Markel, Roper, and Rhodes moved pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)) to dismiss the complaint for the failure to state a cause of action for mandamus relief. Defendant Powers moved separately pursuant to section 2-615 of the Code to dismiss the complaint for a failure to state a cause of action. The Honorable Mark H. Clarke, apparently unaware of a motion to substitute him from the case, dismissed the complaint in a written order. The circuit court's order was file-stamped by the circuit clerk's office on June 27, 2006. However, the plaintiff's motion for a substitution of judge as of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2006)) was also file-stamped by the circuit clerk's office on June 27, 2006; yet it was not presented to Judge Clarke.
Ordinarily, there would be no way to ascertain when the motion for a substitution of judge was actually received by the circuit clerk's office, because the file mark does not reflect the time of the filing, but only the date of the filing. However, it is clear from a review of the docket sheet that the circuit clerk's office originally made an entry recording the plaintiff's filing of a motion for a substitution of judge prior to making an entry for the order of dismissal. Although the motion for a substitution of judge is clearly file-stamped June 27, 2006, it is worth noting that, somehow, the date for the docket entry was originally June 26, 2006. The number seven was then written over the number six to change the date to June 27, 2006. It is also clear from the docket sheet that the circuit clerk's office attempted to use correction fluid to change the entry for the motion for a substitution of judge to an entry for the order of dismissal. The entry for the motion for a substitution of judge was then placed on the docket sheet below the order of dismissal.
Another troubling aspect of this case is the fact that the parties did not receive notice of the order of dismissal for several months following the entry of the order. In fact, defendant Powers filed responses to the plaintiff's pleadings in both July and August, well after the case had been dismissed. In addition, although the case had been dismissed, the court granted the plaintiff's motion for a substitution of judge on August 3, 2006. The case was assigned to the Honorable William J. Thurston.
On November 9, 2006, the circuit clerk's office received, inter alia, a motion to vacate the dismissal of the plaintiff's complaint. This is borne out by a file-stamped pleading of that date. However, a review of the record indicates that the plaintiff's motion to vacate was not docketed or placed in the court file. In December 2006, Judge Thurston received an ex parte communication from the plaintiff in which he sought a hearing on his mandamus complaint. Judge Thurston made a docket sheet entry that reflected the immediate history of the case, and he found that there were no pending matters before the court. The clerk sent a copy of the docket sheet to the parties. In February 2007, the plaintiff asked the court to review motions that he believed were still pending. On March 28, 2007, Judge Thurston denied the plaintiff's March 2, 2007, petition for habeas corpus ad testificandum in a docket sheet entry that again noted that nothing was pending before the court.
On September 24, 2007, Judge Thurston reviewed the court file in response to various communications from the plaintiff about motions that he believed had not been properly handled by the circuit clerk or addressed by the court. The November 9, 2006, motions were finally brought to the attention of the judge. The motion to vacate stated that it was being brought pursuant to section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2006)), but it also stated that at the time the case was dismissed, the plaintiff had on file a motion for a substitution of judge as of right. The judge incorporated the plaintiff's November 9, 2006, motions into the record as of the date of their filing and denied each motion. His extensive docket sheet entry accepted the plaintiff's claim that he had not received Judge Clarke's June 27, 2006, order until October 27, 2006. Judge Thurston ruled that even if the plaintiff's allegation was true, he was not entitled under section 2-1203 of the Code to have the judgment vacated. In response to the plaintiff's contention in the motion to vacate that his motion for a substitution of judge had not been ruled upon prior to the order of dismissal, Judge Thurston ruled as follows:
Judge Thurston did not consider the merits of the defendants' motion to dismiss when he ruled on the motion to vacate. On October 10, 2007, the plaintiff filed a notice of appeal in which he indicated that he was appealing from the court's September 24, 2007, order.
The defendants first argue that we must dismiss the plaintiff's appeal for a lack of jurisdiction. Specifically, they assert that the plaintiff's appeal was untimely filed because the court entered its final order on June 27, 2006, and the plaintiff did not file his notice of appeal until October 10, 2007, more than 15 months after the circuit court had entered a final judgment. Accordingly, we must first address this threshold issue.
The appellate court has jurisdiction over an appeal only where it has been timely filed. Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill.2d 6, 7, 230 Ill.Dec. 593, 694 N.E.2d 562 (1998). Supreme Court Rule 303(a)(1) ) provides:
"The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending postjudgment motion * * *." (Emphasis added.)
Here, the plaintiff's October 10, 2007, notice of appeal specifies that he is appealing from the September 24, 2007, order denying his motion to vacate. Because the plaintiff's notice of appeal was filed within 30 days after the entry of the order disposing of his motion to vacate, the issue is whether the plaintiff's motion to vacate was timely filed. Although the plaintiff characterizes his motion to vacate as being brought pursuant to section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2006)), which requires that the motion be brought within 30 days of the judgment, in his motion to vacate, the plaintiff pointed out that his motion for a substitution of judge as of right had not been ruled upon.
"Civil litigants in Illinois are entitled to one substitution of judge without cause as a matter of right." Illinois Licensed Beverage Ass'n v....
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