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Voss v. Brantley

AUGUST 15, 1973.

DWAYNE VOSS, PLAINTIFF-APPELLANT,

v.

ELZA BRANTLEY, WARDEN, MENARD BRANCH, ILLINOIS STATE PENITENTIARY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Randolph County; the Hon. CARL BECKER, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a final order entered by the Circuit Court of Randolph County dismissing the complaint of the plaintiff, Dwayne Voss.

The complaint was filed by the plaintiff while confined as an inmate in the Illinois State Penitentiary, Menard Branch, at Chester, Illinois. The defendants named in the complaint are Elza Brantley, Warden, Menard Branch, Illinois State Penitentiary, and Herbert Gentsch, Record Clerk, Menard Branch, Illinois State Penitentiary.

The cause of action was based upon Ill. Rev. Stat. 1971, ch. 63, sec. 4, which provides:

"Any sheriff or other officer or person having custody of any prisoner committed on any civil or criminal process of any court who shall neglect to give such prisoner a copy of the process or order of commitment by which he is imprisoned within six hours after demand made by the prisoner, or anyone on his behalf, shall forfeit to the prisoner or party aggrieved not exceeding $500.00."

From the pleadings it appears that on September 29, 1971, the plaintiff submitted a typewritten request to the prison Record Clerk's Office asking for a complete copy of the mittimus which was issued in his case.

On Friday, October 1, 1971, not having received the requested mittimus, the plaintiff made a second request. On October 1, 1971, the plaintiff was informed by Mr. Gentsch that he was unable to obtain the requested mittimus. Then, on Monday, October 4, 1971, the plaintiff received a copy of the Record of Conviction which had the words "penitentiary mittimus" incorporated in its heading and an incomplete copy of the Indictment.

The plaintiff alleges that he desired the mittimus for the purpose of preparing a post-conviction petition.

On October 14, 1971, the plaintiff filed his complaint in this cause. The defendants answered on November 17, 1971, stating that the request for mittimus was made on October 1, 1971, and not on September 28, 1971; and further, that the plaintiff agreed to wait until October 4, 1971, for the mittimus and indictment. Further, the defendants stated that they mistakenly believed that the "Official Statement of Facts" was not to be given the plaintiff, but have clarified from the attorney for the Department of Corrections that this should have been included and thus a "true and correct copy" was given to the plaintiff on November 11, 1971.

The plaintiff filed on November 19, 1971, a "Traverse to Defendant's Answer" in which he exhibited a copy of the written request for the mittimus dated September 28, 1971, containing signatures of two security officers as witnesses. The traverse further alleged that he had not received a complete copy of the mittimus.

The Circuit Court of Randolph County on November 24, 1971, dismissed the complaint ordering that:

"Now on this 24th day of November, 1971, being one of the regular judicial days of the Circuit Court of Randolph County, the Court having examined the Complaint of the Plaintiff and the Answer of the Defendants together with the other pleadings in said case finds that the matters requested by the Plaintiff have now been furnished to him by the Defendants herein and the Court therefore finds that there is no further issues to be resolved in this matter and this case should be dismissed.

It is THEREFORE ORDERED, ADJUDGED AND DECREED that this cause is hereby dismissed."

The plaintiff has brought this appeal and urges that the court erred in ...


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