Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 98--MR--64 Honorable Joseph F. Beatty Judge, Presiding
The opinion of the court was delivered by: Justice Breslin
Plaintiff Donald Helm brought a mandamus action against defendant Odie Washington, Director of the Illinois Department of Corrections (DOC). Plaintiff claimed that he was entitled to 180 days of meritorious good conduct credit, which defendant arbitrarily denied. On defendant's motion, the trial court found the petition frivolous and dismissed it. In this appeal, plaintiff contends that (1) the trial court erred in denying mandamus relief; (2) the court erred in finding his petition frivolous; and (3) defendant denied him due process of law by failing to ensure that plaintiff had meaningful access to the courts. We hold that plaintiff's cause was not a "lawsuit" as defined in section 3--6--3(d)(2) of the Unified Code of Corrections (730 ILCS 5/3-6-3(d)(2) (West 1998)); therefore, we reverse the finding of frivolity. In all other respects, we affirm.
In his petition, plaintiff alleged that he pleaded guilty to burglary on October 21, 1996, and received an eight-year prison sentence. He subsequently completed educational programs and work assignments and qualified for 180 days of meritorious good conduct credit pursuant to section 3--6--3(a)(3) of the Unified Code of Corrections (Code) (730 ILCS 5/3--6--3(a)(3) (West 1998)) and DOC rules. Defendant allegedly denied plaintiff's request for the credit on the ground that plaintiff had a prior order of protection filed against him. Plaintiff said other prisoners similarly situated were granted the credit.
Defendant moved to dismiss the petition on the ground that the award of meritorious good conduct credit is discretionary. After plaintiff filed an objection to defendant's motion, defendant filed a "Motion for Finding of Frivolity Pursuant to 730 ILCS 5/3--6--3(d)(1)." Following a hearing, the trial court granted both of defendant's motions and dismissed the cause. Plaintiff's post-judgment motion to prevent defendant from taking punitive action based on the finding of frivolity was denied. *fn1
SUFFICIENCY OF MANDAMUS PETITION
Plaintiff first argues that his petition should not have been dismissed because it adequately stated a claim for mandamus relief. We disagree.
A writ of mandamus will issue only if the plaintiff has a clear right to the relief sought, the defendant has a clear duty to act, and the defendant has clear authority to comply with the writ. Orenic v. Illinois Labor Relations Board, 127 Ill. 2d 453, 537 N.E.2d 784 (1989). Mandamus is an extraordinary remedy which may be used only to compel a public official or body to perform a ministerial duty in which the official exercises no discretion. Romero v. O'Sullivan, 302 Ill. App. 3d 1031, 707 N.E.2d 986 (1999). The decision to award meritorious good conduct credit to qualifying prisoners is discretionary under section 3- -6--3(a)(3). 730 ILCS 5/3--6--3(a)(3) (West 1998). Defendant is not required to grant the credit or even consider it. Brewer v. Peters, 262 Ill. App. 3d 610, 633 N.E.2d 17 (1994).
Plaintiff's petition in this case alleged only that he qualified for consideration of time credit against his sentence, which could be granted or denied at defendant's discretion. As such, he failed to allege a clear duty to act on the part of defendant, and the trial court did not err in dismissing the petition.
Next, we consider plaintiff's argument that the court erred in finding the petition frivolous. Specifically, plaintiff argues that the trial court abused its discretion. Plaintiff points out that after the court entered its order, the DOC recalculated his out date by adding back 180 days of day-for-day good conduct credit, thereby extending the period of his commitment by 6 months as a penalty for pursuing this action. We do not reach plaintiff's abuse-of-discretion argument, because we hold that the finding of frivolity was erroneous as a matter of law.
Section 3--6--3(d) of the Code provides that the DOC may revoke up to 180 days of good conduct credit based on the trial court's specific finding that a pleading in a prisoner's lawsuit is frivolous. The statute contains definitions for both "frivolous" and "lawsuit." 730 ILCS 5/3--6--3(d)(1),(2) (West 1998). A "lawsuit" is defined as
"a petition for post conviction relief under Article 122 of the Code of Criminal Procedure of 1963, a motion pursuant to Section 116--3 of the Code of Criminal Procedure of 1963, a habeas corpus action under Article X of the Code of Civil Procedure or under federal law (28 U.S.C. 2254), a petition for claim under the Court of Claims Act or an action under the federal Civil Rights Act (42 U.S.C. 1983)." 730 ILCS 5/3--6-- 3(d)(2) (West 1998).
Defendant urges this court to affirm the trial court's finding of frivolity in this case by including mandamus actions within the ...