Merneigh v. Lane

• Citation: 409 N.E.2d 319,42 Ill.Dec. 704,87 Ill.App.3d 852
• Decision Date: 12 August 1980
• Docket Number: No. 79-35,79-35
• Parties: , 42 Ill.Dec. 704 Joseph MERNEIGH, Plaintiff-Appellant, v. Michael P. LANE and Jerry L. Kennedy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 319

409 N.E.2d 319

87 Ill.App.3d 852, 42 Ill.Dec. 704

Joseph MERNEIGH, Plaintiff-Appellant, v. Michael P. LANE and Jerry L. Kennedy, Defendants-Appellees.

No. 79-35.

Appellate Court of Illinois, Fifth District.

Aug. 12, 1980.

Joseph Merneigh, pro se.

Charles W. Pulliam, Legal Counsel, Illinois Dept. of Corrections, Chicago, for defendants-appellees.

JONES, Presiding Justice:

Plaintiff, Joseph Merneigh, an inmate at Menard Correctional Center, filed a pro se complaint for mandamus to compel the warden and the librarian at Menard to issue him additional law library passes. The circuit court of Randolph County summarily dismissed the complaint on defendant's motion.

Mr. Merneigh's complaint was filed pro se July 6, 1978, together with his request to proceed in forma pauperis with supporting affidavits and exhibits. Merneigh alleged that he was allowed no more than two law library visits each week of one hour and fifteen minutes duration. He urged that defendant's refusal to grant him additional library time violated his asserted constitutional right of access to the courts. Further, he alleged that he had exhausted all available administrative remedies without success.

In a handwritten note to the clerk of the circuit court filed October 23, 1978, Merneigh inquired as to the status of his case. The clerk replied that the complaint had been filed and issued a case number but that summons had not yet issued.

On November 27, 1978, the assistant state's attorney of Randolph County filed a motion to dismiss the complaint, urging that plaintiff was allowed two or three law library visits per week of one to two hours per visit, as was every Menard inmate, and that Merneigh had not shown any entitlement to additional library time. The trial court dismissed the complaint without stated grounds by an order filed the same day. On the following day Merneigh's "Motion to Expedite Issuance of Summons and to Set Hearing Date" was filed. Merneigh therein called attention to his July 6 request that summons issue, and he sought a hearing date and a demand for his personal appearance before the Randolph County court for that hearing. Merneigh's next filing was his notice of appeal.

Merneigh urges on appeal that the cause must be reversed and remanded because: (1) the trial court should have held an evidentiary hearing; (2) the court ruled on the motion to dismiss on the day it was filed without giving him an opportunity to respond; and (3) his complaint stated a cause of action.

Since plaintiff's complaint was dismissed without notice and without opportunity to respond in writing to that motion, the cause must be reversed and remanded for further proceedings.

It has been held that an inmate in a correctional institution has no right to appear personally in court in a civil matter. (Payne v. Superior Court of Los Angeles County (1976), 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565; Armstrong v. Rushing (9th Cir. 1965), 352 F.2d 836.) This is perceptibly because of the danger and expense which such a right would entail, the obvious motivation therein for spurious suits, and the fact that in most cases the prisoner's presence in court would not materially advance his position. (See Payne v. Superior Court of Los Angeles County.) Neither does a prisoner have an absolute right to argue his own appeal or to be present at proceedings in an appellate court. Haines v. Castle (7th Cir. 1955), 226 F.2d 591, cert. denied, 350 U.S. 1014, 76 S.Ct. 660, 100 L.Ed. 874; Price v. Johnston (1948), 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356...