Docket No. 93220–Agenda 10–January 2003.

JOHN BEAHRINGER, Appellee, v. JAMES H. PAGE et al.,  								Appellants.

Opinion filed MApril 3, 2003.

	JUSTICE FREEMAN delivered the opinion of the court:

	Plaintiff, John Beahringer, is an inmate in the custody of the

Illinois Department of Corrections. According to plaintiff’s brief:

“When a recalcitrant bureaucracy failed to respond to his grievance

over the confiscation of his art materials, he filed a pro se complaint for declaratory and injunctive relief against Department

officials for a determination *** that the confiscation violated his

[constitutional] rights.”

	The circuit court of Will County dismissed the complaint for

failure to state a cause of action. With one justice dissenting, the

appellate court reversed and remanded for further proceedings. No.

3–00–0720 (unpublished order under Supreme Court Rule 23).

	We allowed defendants’ petition for leave to appeal (177 Ill.

2d R. 315(a)). We now hold that plaintiff failed to allege sufficient

facts showing that he exhausted the Department’s grievance

procedure prior to filing his complaint. Accordingly, we reverse the

appellate court and affirm the circuit court.

BACKGROUND

	In determining whether to allow a motion to dismiss, a court

must take as true all well-pled allegations of fact contained in the

complaint and exhibits attached thereto. Haddick v. Valor Insurance, 198 Ill. 2d 409, 414 (2001); Kennedy v. Deere & Co., 118 Ill. 2d 69, 71 (1987).

	Plaintiff’s complaint alleged as follows. Plaintiff has been

incarcerated in the Illinois Department of Corrections (IDOC or

Department) since 1992. He is scheduled to be released in August

2005. Beginning in 1993, plaintiff actively practiced art while

confined at various correctional centers including Menard, Pontiac,

Big Muddy River, Stateville, and Centralia. He was permitted to

possess and use in his cell art materials that complied with IDOC

safety and security policies. Plaintiff bought art supplies from several of the prison commissaries. Indeed, from October 1998 to

August 4, 1999, while confined at Centralia, IDOC employed

plaintiff as an art instructor. He was allowed to purchase art

supplies from an outside vendor. Over the years, plaintiff has sent

his works of art to relatives and friends. According to plaintiff, he

“communicates and bonds with his family and friends” through his

art.

	On August 18, 1999, IDOC transferred plaintiff from Centralia

to disciplinary segregation at Stateville. He was released from

discipline on February 3, 2000. IDOC officials informed plaintiff

that he would no longer be permitted to possess his art materials.

The officials instructed plaintiff to send his art materials home or

they would be destroyed. An IDOC official informed plaintiff that

Stateville no longer had an art program and that IDOC intended to

ban art programs from all of its facilities. Plaintiff’s art supplies

have been withheld from him since that date. Among plaintiff’s

confiscated items were paints and paintbrushes; pencils, erasers,

pens, and metal calligraphy nibs; drawing paper, posterboard, and

canvasses; and a staple remover.

	However, as of the filing of plaintiff’s complaint, Stateville’s

commissary sold a limited selection of art materials, many of which

were similar to those that IDOC officials confiscated from plaintiff.

Also, a number of inmates at Stateville possess art materials and

practice art in their cells.

	On February 9, 2000, plaintiff filed an emergency grievance.

On February 10, James Page, the warden at Stateville, denied

plaintiff’s emergency grievance because it failed to state the

requisite facts for consideration as an emergency pursuant to

Department regulations. The warden directed plaintiff to file the

grievance with his counselor.

	On February 11, Stateville’s personal property officer issued

to plaintiff a disposal-of-personal-property notice. The notice

required plaintiff to have a visitor pick up his art materials or to

send the materials out of the prison at his expense. If plaintiff failed

to do either within 60 days, the art materials would be destroyed.

	On February 29, plaintiff filed a grievance through the

Department’s established grievance procedure. His counselor received the grievance on March 4 and referred it to a grievance

officer on March 11. As of the filing of plaintiff’s complaint,

plaintiff has not received a response to his grievance.

	Also, on March 1, plaintiff wrote a personal letter to Donald

Gaetz, the assistant warden of operations at Stateville. On March

6, plaintiff wrote a letter to Donald Snyder, Jr., the director of

IDOC. In these letters, plaintiff described the circumstances

surrounding the confiscation and sought the return of his art

materials. Plaintiff received no response to his letters.

	On May 6, plaintiff filed in the circuit court of Will County his

complaint for declaratory and injunctive relief against Page and

Snyder. He alleged as follows. Art “is a clearly established form of

speech and expression guaranteed under the First Amendment to

the United States Constitution.” Defendants, by taking away his art

supplies, restricted his ability to communicate with his family and

friends through art. Plaintiff sought a declaration that defendants

violated his first amendment right to free expression by

confiscating his art supplies.

	Plaintiff also alleged as follows. He was being permanently

deprived of his art materials. Without preliminary injunctive relief,

plaintiff would lose the supplies, which he could not afford to

replace. Plaintiff sought a preliminary injunction preventing IDOC

from destroying his art materials.

	Defendants filed a motion to dismiss pursuant to section

2–615 of the Code of Civil Procedure (735 ILCS 5/2–615(a) (West

2000)). Defendants asserted that plaintiff’s right to possess his art

materials did not override the Department’s interests in regulating

prisoner conduct. Rather, plaintiff’s possession of art materials was

within the safety and security authority of IDOC.

	Defendants also asserted that a preliminary injunction was

inappropriate because plaintiff failed to show that he would be

irreparably harmed. Defendants argued that plaintiff had the option

of sending his art materials home, where they could be retrieved

upon his release from prison. The circuit court granted defendants’

motion to dismiss.

	A divided panel of the appellate court vacated the circuit

court’s dismissal of plaintiff’s complaint, granted his request for a preliminary injunction, and remanded the cause for further

proceedings. No. 3–00–0720 (unpublished order under Supreme

Court Rule 23). The majority concluded that plaintiff’s complaint

stated a cause of action for declaratory relief because plaintiff

alleged a controversy over whether he had a first amendment right

to possess and use his art supplies. The majority also concluded

that plaintiff was entitled to a preliminary injunction. The majority

reasoned: “If the defendants were allowed to destroy his supplies

or he was required to send the supplies to a friend or family

member, the plaintiff would suffer irreparable harm in that should

he succeed on the merits of his petition he would be forced to

purchase new supplies.”

	Justice Breslin dissented. Analyzing the merits of plaintiff’s

complaint, Justice Breslin concluded that plaintiff could not

successfully plead a cause of action for either declaratory or

injunctive relief. Justice Breslin noted that plaintiff’s property was

confiscated when he was transferred from a minimum security

facility to a maximum security facility and placed in segregation.

Following plaintiff’s release from segregation, Justice Breslin

opined, it was the responsibility of IDOC to control plaintiff, and

courts should defer to IDOC regarding prison administration.

Defendants appealed to this court (177 Ill. 2d R. 315(a)).

ANALYSIS

	This case is before us following the dismissal of plaintiff’s

claims pursuant to section 2–615 of the Code of Civil Procedure

(735 ILCS 5/2–615 (West 2000)). A section 2–615 motion attacks

the legal sufficiency of a complaint. The motion does not raise

affirmative factual defenses, but rather alleges only defects on the

face of the complaint. The question presented by a section 2–615

motion to dismiss is whether the allegations of the complaint, when

viewed in a light most favorable to the plaintiff, are sufficient to

state a cause of action upon which relief can be granted. A cause

of action will not be dismissed on the pleadings unless it clearly

appears that no set of facts can be proved which will entitle the

plaintiff to recover. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997); Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87 (1996).

	Moreover, Illinois is a fact-pleading jurisdiction. A plaintiff

must allege facts sufficient to bring his or her claim within the

scope of the cause of action asserted. Vernon, 179 Ill. 2d at 344; People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308 (1981). We review a dismissal under section 2–615 de novo. Neade v. Portes, 193 Ill. 2d 433, 439 (2000).

I. Declaratory Judgment

	Defendants contend that plaintiff’s complaint failed to state a

cause of action for declaratory judgment because: (1) plaintiff did

not exhaust IDOC’s grievance procedure prior to filing his

complaint, and (2) plaintiff did not allege a first amendment

violation. “A court will consider a constitutional question only

where essential to the disposition of a case, i.e., where the case cannot be determined on other grounds.” Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 396 (1994) (and cases cited therein); accord City of Detroit v. Gould, 12 Ill. 2d 297, 304 (1957); Bohnert v. Ben Hur Life Ass’n, 362 Ill. 403, 408 (1936) (“inasmuch as we have concluded that the complaint did not state

a cause of action it becomes unnecessary to pass upon the

constitutional questions”). Accordingly, we first consider whether

plaintiff was required to exhaust IDOC’s grievance procedure prior

to filing his complaint and, if so, whether plaintiff pled sufficient

facts showing that he had done so. See, e.g., Bank of Lyons v. County of Cook, 13 Ill. 2d 493, 497 (1958).

A. Exhaustion of Administrative Remedy

	Plaintiff initially responds that defendants waived the issue of

whether he exhausted IDOC’s grievance procedure. Plaintiff notes

that defendants did not raise the exhaustion issue in the circuit

court as part of their motion to dismiss. Rather, according to

plaintiff, defendants first raised this issue in the appellate court.

Plaintiff asserts that defendants’ failure to raise this issue in the

circuit court constitutes a waiver of this issue.

	We disagree. Defendants were the appellees in the appellate

court. It is quite established that “the appellee may urge any point

in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such

point was before the trial court.” Shaw v. Lorenz, 42 Ill. 2d 246, 248 (1969). Since plaintiff’s complaint and attached exhibits

provide the requisite factual basis, we will address this issue. See, e.g., People ex rel. Skinner v. Graham, 170 Ill. App. 3d 417, 440 (1988); Coleman v. Hinsdale Emergency Medical Corp., 108 Ill. App. 3d 525, 527 (1982).

1. Federal Law

	Curiously, defendants base their exhaustion contention on

federal law. Plaintiff expressly seeks declaratory relief pursuant to our declaratory judgment statute, codified in section 2–701 of the

Code of Civil Procedure (735 ILCS 5/2–701 (West 2000)).

However, defendants assert that plaintiff “sought to vindicate an

alleged violation of his federally protected First Amendment

rights.” Defendants reason: “The appropriate and common vehicle

for contesting alleged constitutional rights violations by state

officials is through a civil rights action pursuant to 42 U.S.C.

§1983. Under section 1983, a person can obtain declaratory and

injunctive relief. *** Thus, Beahringer’s action is, in essence, a

garden-variety section 1983 lawsuit.”

	Continuing down this path, defendants invoke the Federal

Prison Litigation Reform Act of 1995 (PLRA) (42 U.S.C. §1997e

(2000)), which states in pertinent part:

		“(a) Applicability of administrative remedies

				No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§1997e(a) (2000).

Defendants contend: “Beahringer cannot obviate the need to

comply with the PLRA’s exhaustion requirement simply by not

mentioning section 1983 in his complaint. *** Beahringer was

required to exhaust his administrative remedies under the PLRA.”

	The appellate court majority noted–and rejected–this

argument, observing that “plaintiff’s complaint makes it clear that he is requesting declaratory judgment, not relief under section

1983.” We agree. Plaintiff’s complaint refers neither to section

1983 nor to any other federal law. Defendants attempt to insert

federal law where it does not apply. Legislatures in many other

states have expressly adopted the PLRA. See, e.g., Wis. Stat. §801.02(7)(b) (1994); Mich. Comp. Laws §600.5503(1) (2000);

Mo. Rev. Stat. §506.384.1 (2002). The Illinois General Assembly

has not and this court cannot do so by judicial fiat.

2. Declaratory Judgment

	However, based on established state law, we conclude that

plaintiff must nevertheless exhaust his administrative remedies prior

to bringing a declaratory judgment action. The Illinois declaratory

judgment statute provides in pertinent part:

			“(a) No action or proceeding is open to objection on the

ground that a merely declaratory judgment or order is

sought thereby. The court may, in cases of actual

controversy, make binding declarations of rights, having

the force of final judgments, whether or not any

consequential relief is or could be claimed, including the

determination, at the instance of anyone interested in the

controversy, of the construction of any statute, municipal

ordinance, or other governmental regulation *** and a

declaration of the rights of the parties interested.” 735

ILCS 5/2–701(a) (West 2000).

A declaratory judgment “may be obtained by means of a pleading

seeking that relief alone, or as incident to or part of a complaint,

counterclaim or other pleading seeking other relief as well.” 735

ILCS 5/2–701(b) (West 2000). The essential requirements of a

declaratory judgment action are: (1) a plaintiff with a legal tangible

interest; (2) a defendant having an opposing interest; and (3) an

actual controversy between the parties concerning such interests. Griffin v. County of Cook, 369 Ill. 380, 398 (1938) (Stone, J., specially concurring, joined by Farthing, J.); accord Alicea v. Snyder, 321 Ill. App. 3d 248, 253 (2001).

	The declaratory judgment procedure allows “ ‘ “the court to

take hold of a controversy one step sooner than normally–that is, after the dispute has arisen, but before steps are taken which give

rise to claims for damages or other relief. The parties to the dispute

can then learn the consequences of their action before acting.” ’ ”

Kaske v. City of Rockford, 96 Ill. 2d 298, 306 (1983), quoting Buege v. Lee, 56 Ill. App. 3d 793, 798 (1978), quoting Ill. Ann. Stat., ch. 110, par. 57.1, Historical & Practice Notes, at 132

(Smith-Hurd 1968). “The declaratory judgment procedure was

designed to settle and fix rights before there has been an

irrevocable change in the position of the parties that will jeopardize

their respective claims of right. [Citation.] The remedy is used to

afford security and relief against uncertainty so as to avoid

potential litigation.” First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 174 (1995); accord Illinois Gamefowl Breeders Ass’n v. Block, 75 Ill. 2d 443, 452 (1979).

	A declaratory judgment action is purely statutory and is to be

liberally construed. However, the provisions of the statute must be

strictly complied with. Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 299 (1950); see Lihosit v. State Farm Mutual Automobile Insurance Co., 264 Ill. App. 3d 576, 579 (1993). In interpreting the Illinois declaratory judgment statute, Illinois courts may look

to the decisions of other states in interpreting the Uniform

Declaratory Judgments Act (12 U.L.A. 309 (1996)). AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 693 (1998); see 1 W. Anderson, Actions for Declaratory

Judgments §5 (2d ed. 1951).

	A declaratory judgment action is strictly remedial. The statute

does not create substantive rights or duties, but merely affords a

new, additional, and cumulative procedural method for the judicial

determination of the parties’ rights. Berk v. County of Will, 34 Ill. 2d 588, 591 (1966); see Ill. Ann. Stat., ch. 110, par. 2–701,

Historical & Practice Notes, at 6 (Smith-Hurd 1983).

	“Because the declaratory judgment procedure does not replace

but merely adds to existing remedies a form of judgment to declare

the rights of the parties, the existence of other remedies does not

preclude judgment for declaratory relief, even though such other

remedies may be equally effective.” Ill. Ann. Stat., ch. 110, par.

2–701, Historical & Practice Notes, at 6-7 (Smith-Hurd 1983);

accord La Salle National Bank v. County of Cook, 57 Ill. 2d 318, 322 (1974); Alderman Drugs, Inc. v. Metropolitan Life Insurance Co., 79 Ill. App. 3d 799, 804 (1979). For example, in Kaske, 96 Ill. 2d at 305-06, this court concluded that a police officer need not

provoke an administrative disciplinary proceeding against himself

so as to provide a forum to challenge an order of his police chief;

rather, the officer could seek declaratory relief.

	However, where it is alleged that a facially valid statute,

ordinance, or administrative rule “is applied in a discriminatory or

arbitrary manner, the rule generally prevails that recourse must be

had in the first instance to the appropriate administrative board.”

Bank of Lyons, 13 Ill. 2d at 495; accord Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304, 308-09 (1989) (collecting cases). Courts apply the exhaustion doctrine to declaratory

judgment actions. See, e.g., Bank of Lyons, 13 Ill. 2d at 494; AEH Construction, Inc. v. Department of Labor, 318 Ill. App. 3d 1158, 1163-64 (2001); Union Bank v. Blackstone Sunbury-Nevada Grain Co., 254 Ill. App. 3d 206, 207-08 (1993); Schwanke, Schwanke & Associates v. Martin, 241 Ill. App. 3d 738, 749 (1992); Salk v. Department of Registration & Education, 123 Ill. App. 2d 320, 324 (1970) (collecting cases).

	Referring to the “actual controversy” requirement of a

declaratory judgment action, this court has explained:

		“ ‘Actual’ in this context does not mean that a wrong must

have been committed and injury inflicted. Rather, it

requires a showing that the underlying facts and issues of

the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of

law, render an advisory opinion, or give legal advice as to

future events.” (Emphasis added.) Underground Contractors Ass’n v. City of Chicago, 66 Ill. 2d 371, 375 (1977).

The principles of ripeness and exhaustion of remedies are closely

related in that both involve generally the prematurity of an action. AEH Construction, 318 Ill. App. 3d at 1163; Schwanke, 241 Ill. App. 3d at 748.

	The exhaustion doctrine applies where a claim is cognizable in

the first instance by an administrative agency. If the agency is vested by the legislature with the authority to administer the

statute, declaratory relief is not available; judicial interference must

be withheld until the administrative process has run its course.

Schwanke, 241 Ill. App. 3d at 749; see ALSOalso AEH Construction, 318 Ill. App. 3d at 1163. Among the policy considerations

underlying the exhaustion doctrine are that it allows the agency to

fully develop and consider the facts of the cause and to utilize its

expertise; it protects the agency processes from impairment by

avoidable interruptions; it gives the aggrieved party the opportunity

to succeed before the agency; and it allows the agency to correct

its own errors, thus conserving valuable judicial resources.

Schwanke, 241 Ill. App. 3d at 749; see also Union Bank, 254 Ill. App. 3d at 208-09.

	These policy considerations are manifest in prison

administration. Courts are ill-equipped to deal with the increasingly

urgent problems of prison administration and reform. The problems

of prisons in this country are complex and intractable, and are not

readily susceptible of resolution by judicial decree. Operating a

prison is an extremely difficult undertaking that requires expertise,

planning, and the commitment of resources, all of which are

exclusively within the province of the legislative and executive

branches of government. Moreover, since prison administration is

a task that has been committed to those branches, separation of

powers concerns advise a policy of judicial restraint. Turner v. Safley, 482 U.S. 78, 84-85, 96 L. Ed. 2d 64, 76, 107 S. Ct. 2254, 2259 (1987); see In re Washington, 65 Ill. 2d 391, 399 (1976). Accordingly, courts afford wide-ranging deference to the decisions

of prison administrators. 72 C.J.S. Prisons §9(a) (1987); 60 Am. Jur. 2d Penal & Correctional Institutions §121, at 978 (2003).

	Based on the above principles: “The doctrine of exhaustion of

administrative remedies applies to grievances lodged by prisoners,

even when the grievances involve an alleged constitutional

violation.” 72 C.J.S. Prisons §9(b), at 421 (1987). See, e.g., In re Cliff, 264 A.D.2d 892, 696 N.Y.S.2d 84 (1999); Broeckel v. State of Alaska Department of Corrections, 941 P.2d 893 (Alaska 1997); In re Alamin, 241 A.D.2d 586, 660 N.Y.S.2d 746 (1997); Buehl v. Pennsylvania Department of Corrections, 160 Pa. Commw. 1, 635 A.2d 217 (1991).

	In the present case, the Unified Code of Corrections mandates

that IDOC: establish rules and regulations for the protection of the

person and property of Department employees and inmates (730

ILCS 5/3–7–1, 3–7–4 (West 2000)); and, under rules and

regulations, record and receipt all personal property not allowed to

committed persons (730 ILCS 5/3–4–3(a) (West 2000)). The Code

also empowers IDOC to investigate inmate grievances (730 ILCS

5/3–2–2(1)(h) (West 2000)).

	Implementing these legislative mandates, the Department

promulgated a coherent and systematic grievance procedure. 20 Ill.

Adm. Code §§504.800 through 504.870 (2000). The process

begins by first requiring an inmate to attempt to resolve problems

through his or her counselor. If the problem cannot be resolved

informally, the process proceeds to the filing of a formal written

grievance. 20 Ill. Adm. Code §504.810 (2000). At the time of

plaintiff’s grievance, a grievance officer was required to consider

the grievance, call witnesses if appropriate, and report his or her

written findings to the chief administrative officer “within 30 days

after the grievance is received *** whenever possible.” In turn, the

chief administrative officer was required to issue a written decision

“within 15 days after receiving the [grievance officer’s] report,

whenever possible.” 20 Ill. Adm. Code §504.830 (2000). This

administrative process continues with appeals to the Director of

Corrections and possibly to an administrative review board. 20 Ill.

Adm. Code §504.850 (2000). Also, according to Stateville’s

internal rules, if the inmate timely grieves the confiscation of his or

her property, which plaintiff did in this case, the property will be

retained at the facility and will not be destroyed until the grievance

procedure has been completed. Stateville Institutional Directive

05.10.110K3 §II(V).

	We turn to plaintiff’s complaint for declaratory and injunctive

relief. Plaintiff expressly states therein that he filed his complaint

prior to receiving a response from his grievance officer. Plaintiff’s

failure to exhaust his available administrative remedies is apparent

from the face of the complaint.

	However, plaintiff claims that he exhausted his administrative

remedies. Plaintiff contends that under the procedure in effect at

the time of his grievance, “he was required to wait a minimum of 45 days prior to filing suit.” According to plaintiff, approximately

60 days had elapsed without a response to his grievance when he

filed his suit.

	We conclude that plaintiff did not exhaust this administrative

remedy. The relevant time requirements include the phrase

“whenever possible.” 20 Ill. Adm. Code §504.830 (2000). The

time frames for the consideration of grievances were directory and

not mandatory. See Village of Park Forest v. Fagan, 64 Ill. 2d 264, 267-68 (1976); Carrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d 230, 233-34 (1960). Accordingly, they did not grant

plaintiff an automatic right of action. Plaintiff argues delay and not

unavailability. He has not pled the exhaustion of administrative

remedies. We express no opinion as to the amount of time that

must elapse before a petition under IDOC’s grievance procedure

can be considered futile.

	We observe plaintiff’s allegation in his complaint “that the

[standard] grievance process is futile” in his case because it was the

warden who initially approved the confiscation, and grievances

filed against warden-approved actions historically have failed.

Illinois recognizes a limited “futility” exception to the exhaustion

of administrative remedies doctrine. A party will not be required to

exhaust his or her administrative remedies when it would be

patently useless to do so. Northwestern University v. City of Evanston, 74 Ill. 2d 80, 88 (1978). “However, the fact that there are clear indications that the agency may or will rule adversely is

generally inadequate to terminate the administrative process or to

avoid the exhaustion requirement.” Castaneda, 132 Ill. 2d at 328 (and cases cited therein); see AEH Construction, 318 Ill. App. 3d at 1163. Further, mere conclusions of fact or law unsupported by

specific factual allegations are insufficient to state a cause of

action. Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (1996); Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 509-10 (1988).

	Plaintiff’s declaratory judgment action was properly dismissed

for failure to sufficiently plead that he exhausted his administrative

remedies. Our holding obviates discussion of plaintiff’s first

amendment claim. See Gould, 12 Ill. 2d at 304.

II. Preliminary Injunction

	Having concluded that the circuit court correctly dismissed

plaintiff’s declaratory judgment action, we must next determine

whether the appellate court properly granted plaintiff a preliminary

injunction to prevent the destruction of plaintiff’s art materials.

	The purpose of a preliminary injunction is to preserve the

status quo pending a decision on the merits of a cause. It is an

extraordinary remedy which should apply only in situations where

an extreme emergency exists and serious harm would result if the

injunction is not issued. A party seeking a preliminary injunction

must establish that: (1) a clearly ascertained right in need of

protection exists; (2) irreparable harm will occur without the

injunction; (3) there is no adequate remedy at law for the injury;

and (4) there is a likelihood of success on the merits. Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 365-66 (2001); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 156 (1992).

	In this case, plaintiff has not demonstrated a need for a

preliminary injunction. As we previously observed, plaintiff’s art

supplies will be retained at the facility and will not be destroyed

until the grievance procedure has been completed. See Stateville

Institutional Directive 05.10.110K3 §II(V). Since plaintiff has not

shown irreparable harm, injunctive relief is unavailable.

CONCLUSION

	For the foregoing reasons, the judgment of the appellate court

is reversed, and the judgment of the circuit court of Will County is

affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

	JUSTICE KILBRIDE, dissenting:

	I respectfully dissent from the majority opinion. The majority

holds that plaintiff cannot maintain an action for declaratory

judgment because he failed to exhaust his administrative remedies. Three years after plaintiff filed his initial grievance, defendants have

yet to respond to plaintiff’s grievance, and defendants offer no

justification. The majority essentially rewards the Department of

Corrections for engaging in practices that effectively eliminate the

relief authorized by the administrative remedies, while penalizing

plaintiff for availing himself of the only other relief available.

	I disagree with the majority’s determination that the time

requirements for consideration of grievances are directory rather

than mandatory. A statute that specifies the time for performance

of an official duty is considered directory only when the rights of the parties cannot be injuriously affected by the failure to act within

the time indicated. Carrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d 230, 233 (1960). When the disregard of a time

requirement would injuriously affect private rights, the provision

is mandatory. Carrigan, 19 Ill. 2d at 233. A proper analysis must consider whether the time requirement prescribed is intended for

the protection of the person filing the grievance and to prevent a

sacrifice of his property. See People v. Jennings, 3 Ill. 2d 125, 127 (1954). In this case, the lengthy delay has injuriously affected

plaintiff’s private rights, making the time requirement mandatory.

	I also believe that defendants have waived the exhaustion of

remedies defense. The majority cites the rule that “ ‘the appellee

may urge any point in support of the judgment on appeal, even

though not directly ruled on by the trial court, so long as the

factual basis for such point was before the trial court.’ ” Slip op. at

5-6, quoting Shaw v. Lorenz, 42 Ill. 2d 246, 248 (1969). Curiously, the majority departs from a recent case where this court held that

a defendant-appellee’s failure to raise the exhaustion of remedies

issue in the trial court constituted a waiver of the issue on appeal.

See People v. Fiorini, 143 Ill. 2d 318, 337 (1991), citing Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988).

	In the instant case, defendants did not present the issue of

exhaustion of remedies in the circuit court, either in written

motions, memoranda, or oral argument. Defendants did not raise

exhaustion of remedies as an affirmative defense, and plaintiff was

never put on notice that such proof was required. Accordingly, I

believe that it is inappropriate to consider the exhaustion of remedies issue for the first time on appeal as a basis for affirming

the decision of the circuit court. See Greer, 122 Ill. 2d at 509.

	Finally, I believe that the allegations in plaintiff’s pro se complaint were sufficient to state a claim for declaratory judgment.

To bring a declaratory judgment action, the plaintiff must allege in

sufficient detail an actual and legal controversy between the parties

and must demonstrate that the plaintiff is interested in the

controversy. 735 ILCS 5/2–701(a) (West 2000); Best v. Taylor Machine Works, 179 Ill. 2d 367, 382-83 (1997); First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 173 (1995). When reviewing a motion to dismiss, the court must take all well-pleaded

facts in the plaintiff’s complaint and supporting documentation as

true. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). “A cause of action should not be dismissed on the

pleadings unless it clearly appears that no set of facts can be

proved under the pleadings which will entitle the plaintiff to

recover.” Bryson, 174 Ill. 2d at 86-87.

	Here, plaintiff’s complaint alleged facts that show a

controversy between himself and the defendants regarding his

ability to possess and use his art supplies. Plaintiff further requested

a declaration that he had a first amendment right to possess and use

those supplies. I believe that the appellate court correctly

determined that the allegations in plaintiff’s pro se complaint were sufficient to state a claim for declaratory judgment. Accordingly,

I would affirm the appellate court’s order vacating the trial court’s 

dismissal of plaintiff’s complaint and remand the case for further

proceedings. I therefore respectfully dissent.