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Tedder v. Fairman

OPINION FILED APRIL 16, 1982.

PAUL WILLIAM TEDDER, APPELLEE AND CROSS-APPELLANT,

v.

JAMES FAIRMAN, WARDEN, ET AL., APPELLANTS AND CROSS-APPELLEES. — THOMAS BASS, APPELLEE AND CROSS-APPELLANT,

v.

GAYLE M. FRANZEN, DIRECTOR OF CORRECTIONS, ET AL., APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Livingston County, the Hon. William T. Caisley, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 27, 1982.

This consolidated case involves two petitions brought by inmates of the Pontiac Correctional Center against various officials and agents of the Department of Corrections. Paul William Tedder and Thomas Bass appealed from judgments in the circuit court of Livingston County entered on December 26, 1979, dismissing each of the petitioners' complaints.

On August 17, 1979, Paul William Tedder filed a request as a pro se petition for a writ of mandamus or habeas corpus in the circuit court of Livingston County. Tedder alleged that he was deprived of needed medical assistance. On August 20, 1979, the circuit court entered an order appointing the public defender to represent Tedder. Defendants filed a motion to dismiss the petition for habeas corpus and the petition for mandamus. Tedder requested an extension of time to file a response to the motion to dismiss. On September 27, 1979, the circuit court informed Tedder that Mr. Blakeman, assistant public defender, had been appointed to represent him. On October 4, 1979, the circuit court granted the defendants' motion to dismiss the petition for habeas corpus and granted defendants' motion for a more definite statement of petitioner's mandamus claim. Tedder was given 10 days in which to amend the petition.

Bass, in his pro se petition of October 25, 1979, filed in the circuit court, asserted that he had filed a grievance with the Inquiry Review Board prior to petitioning the court. Bass further states that the Inquiry Review Board on September 21, 1979, determined the grievance to be without merit. Tedder in his pro se petition asserts that he has done everything possible at the Pontiac Correctional Center to get the medical help he seeks. Tedder does not say whether doing everything possible included asking for an administrative review of the denial of medical assistance. While the Attorney General did not claim, in moving to dismiss, that the petitioner failed to file a grievance with the Inquiry Review Board, a request for internal review within the correctional institution must be made before a circuit court considers the petitioner's complaint. (People ex rel. Willis v. Department of Corrections (1972), 51 Ill.2d 382; In re Owen (1973), 54 Ill.2d 104, 110.) On remand the circuit court should make a preliminary finding as to whether any petition on behalf of Tedder was presented to the Inquiry Review Board. If the petitioner has not sought review of his complaint at Pontiac, then the petition filed in the circuit court of Livingston County is premature, and dismissal without prejudice would be appropriate until the petitioner takes such action.

On October 25, 1979, the circuit judge wrote to Tedder informing him of the status of various cases he had filed in the circuit court. The assistant public defender also wrote to Tedder on October 18, 1979, to inform him of the status of his case. On November 28, 1979, the circuit court granted an extension of 14 days to amend his petition for mandamus. No amended pleadings were filed by the petitioner or his court appointed counsel.

On December 18, 1979, Tedder filed a petition for rehearing or notice of appeal on the dismissal of the mandamus portion of the original petition. The final order dismissing the petition for mandamus was entered December 26, 1979. According to the supporting affidavit of the December 18 petition for rehearing, the appointed public defender had refused to travel to Pontiac to discuss the case. Tedder maintained that his counsel had been ineffective and he had been unable to do his research or consult with an inmate lawyer.

Thomas Bass filed a pro se petition for a writ of mandamus in the circuit court of Livingston County on October 25, 1979. Bass sought a transfer because he asserted that he feared for his physical safety. On October 25, 1979, Assistant Public Defender Blakeman was also appointed to represent Bass. The defendants filed a motion to dismiss this petition for mandamus. On November 28, 1979, the petition was dismissed and Bass was given 14 days to amend his pleadings. No amended pleadings were filed, and the petition was dismissed on December 26, 1979. Bass was informed of this dismissal by letter on December 27, 1979. On January 11, 1980, Bass filed a notice of appeal.

The trial court appointed the State Appellate Defender to represent each of the prisoners on appeal. The Appellate Defender moved to withdraw as counsel on the basis that his duties do not include representation of indigent prisoners, except in criminal appeals. The appellate court ordered the motion taken with the case and directed the Appellate Defender to file briefs on behalf of the petitioners and address the issues of the Appellate Defender's duty to represent prisoners in actions of this nature and the rights of prisoners to counsel on appeal. The Appellate Defender argued that indigent prisoners had no constitutional right to appointed counsel in civil cases, and the State agreed.

The appellate court allowed the Appellate Defender's motion to withdraw, held that indigent prisoners bringing suits of this nature have no right to appointed counsel, either at trial or on appeal, reversed the trial court's dismissal of the claimants' petitions, and remanded to allow the complaints to be amended. (93 Ill. App.3d 948.) The appellate court opinion provided that if plaintiffs show they have been deprived of the right of access to the courts>, any appointed counsel would have to come from the private bar. The opinion further provided that any ruling requiring appointment of counsel as a constitutional right should only come from the State's highest court. On April 6, 1981, the appellate court, on its own motion, issued a certificate of importance in this case to this court.

A prisoner may be subject to certain restrictions on and limitations of many privileges and rights. (Price v. Johnston (1948), 334 U.S. 266, 285, 92 L.Ed. 1356, 1369, 68 S.Ct. 1049, 1060; Wolff v. McDonnell (1974), 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963.) There are occasions when constitutional rights can be abridged provided it is necessary in order that the Department of Corrections may pursue legitimate and reasonable policies in maintaining institutional security and preserving internal order in a State institution. Pell v. Procunier (1974), 417 U.S. 817, 822, 41 L.Ed.2d 495, 501, 94 S.Ct. 2800, 2804.

Nonetheless, a prisoner does not forfeit fundamental constitutional protections as the result of his conviction and custodial status. Any incarcerated man or woman retains some important basic rights which cannot be stripped away. Jones v. North Carolina Prisoners' Labor Union, Inc. (1977), 443 U.S. 119, 129, 53 L.Ed.2d 629, 641, 97 S.Ct. 2532, 2539-40; Meachum v. Fano (1976), 427 U.S. 215, 49 L.Ed.2d 451, 96 S.Ct. 2532; Wolff v. McDonnell (1974), 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963; Pell v. Procunier (1974), 417 U.S. 817, 822, 41 L.Ed.2d 495, 501, 94 S.Ct. 2800, 2804; Bell v. Wolfish (1979), 441 U.S. 520, 545-46, 60 L.Ed.2d 447, 472-73, 99 S.Ct. 1861, 1877.

One guarantee which has become well established is a prisoner's constitutional right of access to the courts>. (Bounds v. Smith (1977), 430 U.S. 817, 821-23, 52 L.Ed.2d 72, 78-79, 97 S.Ct. 1491, 1494-95.) The right is founded on the due process clause (Wolff v. McDonnell (1974), 418 U.S. 539, 579, 41 L.Ed.2d 935, 964, 94 S.Ct. 2963, 2986) and was first ...


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