## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Dupree v . Hardy , 2011 IL App (4th) 100351

Appellate Court Caption CE D RI C D U PR EE, Plaintiff-Appellant, v. MARCUS HA RD Y
, Wa r d e n ; J OSEPH MATHY, Acting Warden; and ROGER WAL KER, Direc tor, The De partment of Corr ections, De fenda nts-Appellee s.

District & N o. Four th District Docke t No. 4-10-0351

Filed J uly 20, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) An inmate’s petition for a writ of mandamus alleg ing that prison officia ls unlawfully failed t o re s tore his acc ess to the prison’s exercise y ard and seeking the remova l of all inmate disciplinary repor ts from his reco rds and the return of hi s co n fi s cate d “leg al and persona l proper ty ” was proper ly dismiss ed as frivolous due to the lack of an arguable basis in the law or f act a nd the abse nce of

supporting e vidence

.

Dec ision Under
Review Appea l from the Circuit Court of L ivingston County
, No. 09-MR-55; the Hon. J ennife r H. B auknec ht, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Cedric Dupr ee, of Pontiac, appellant pro se

.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Genera l, and Clifford W

. Be rlow, Assistant Attorney Gene ral, of counse l), for a

ppellees.

Panel J USTI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Turner and McCullough concur red in the judgme nt and opinion.

OP INION

¶ 1 In May 2009, plaintiff, Cedric Dupre e, an inmate at Pontiac Correc tional Center, pro se filed a petition for writ of mandamus under article 14 of the Code of Civil Procedur e (Civil Code) (735 I L CS 5/14-101 throug h 14-109 (West 2008)), alleg ing that defe ndants, Marc us Har dy (Pontiac’s war den), J oseph Mathy (Pontiac’s ac t i ng war den), and Roge r Walker (Dire ctor of t h e Depa

rtment of C orre ctions (DOC))
, acte d unlawfully by depriving him of

cer tain proper

ty , exercise pr ivilege s, and administrative a ction. ¶ 2 In October 2009, Walker filed a motion to dismiss Dupre e’s petiti o n u n d er s ec t ion 2- 619(a) (9) of the Civil Code (735 I L CS 5/2-619(a) (9) (West 2008)). In J anuar y 2010, Har dy and Mathy filed a motion to dismiss Dupre e’s petition under section 2-615 of the Civil Code (735 I L CS 5/2-615 (West 2008)). At an Apri l 2 0 1 0 h earing on defe ndants’ respe ctive motions, the trial court (1) dismissed Dupre e’s mandamus petition a nd (2) order ed Dupre e to pay the filing fees an d court costs associate d with that petition, which the court char acte rized as “f

rivolous.” ¶ 3 Dupre e pro se appea ls, making sever al claims related to the trial court’s dismiss al of his mandamus petition. W e af firm.

¶ 4 I . BA CKGROUND ¶ 5 In May 2009, Dupre e pro se filed a petition for writ of mandamus
, alleg ing that Har dy
, Mathy
, and Walker acte d unlawfully by faili n g t o (1) restore his acc ess to the prison’s exercise yard, (2) remove al l exis ting inmate disciplinary repor ts (I DRs) from his prison

rec ord beca

use Walker failed to persona lly revie w and finalize eac h repor t, and (3) return his confiscated “leg al an d p er sonal proper ty ” afte r Dupre e had the rele vant I DR expunged. Dupre e’s petition also soug ht $527 in damag es for his lost, stolen, and confisca ted proper

ty

. That same day
, Dupre e also filed a motion for appointment of counsel, which the trial court denied thre e day s later.

-2-¶ 6 Following an August 18, 2009, revie w hear ing, the trial court enter ed a docket entry (1) noting that a

return of service had y et to be filed a nd (2) ordering the Att orney Gene ral for the S tate of I llinois to file a n ap p ea ra n ce and responsive pleading within 45 day s. A week later, D upree pro se filed a motion for de fault judg ment. ¶ 7 On October 7, 2009, the Attorney Gene ral–on Walker’s behalf –filed a motion to dismi ss Dupre e’s petition for writ of manda mus under section 2-619(a )(9) of the Civil Code (735 I L CS 5/2-619(a) (9) (West 2008)). In the memorandum of law in support of that motion, the Attorney Gene ral noted that as of October 2009, Har dy and Mathy had not been serve d with Dupre e’s c omplaint. ¶ 8 The following day
, Dupre e pro se filed a motion to supplement relief
, reque sting that the trial court permit him to supplement the relief he soug ht in his May 2009 petition for writ of mandamus

. In particula

r, Dupre e reque sted (1) a dec laratory judgme nt that defe ndants’

u n l aw fu l confiscation of his “leg al proper ty ” was unconstitutional and posed “a legal [hi ndranc e]” and (2) an order
, requiring defe ndants to provide him co p i es o f al l the
g rieva nces he had filed and the respe ctive response s beca use defe ndants had destroy ed those documents. On October 13, 2009, Dupre e pro se filed a m o tion for stay , essentially
reque sting that the court addre ss his motion for defa ult ju d gm en t befor e requiring him to provide a n answe r to Walker’s motion to dismi ss. ¶ 9 Following a November 2009 hear ing, the trial co u rt (1 ) d en i ed Dupre e’s motion for d ef au l t judgme nt, finding that no evidenc e was shown that Har dy and Mathy wer e serv ed with Dupre e’s petition for writ of mandamus ; (2) denied Dupre e’s motion for a stay ; and (3)
g rante d Dupre e’s motion to supplement relief

. ¶ 10 On J anuar

y 5, 2010, Dupre e pro se filed (1) an answe r to Walker’s motion to dismiss and (2) a motion for defa

ult judgme nt ag ainst Har dy and Mathy
, which was premised on a May 2009 docket entry that showed his mandamus petiti on had been m ailed to eac h defe ndant. On J anuar

y 21, 2010, the Att orney Gene ral–on behal f of Har dy and Mathy –filed a motion for leave to file a motion to dismiss under section 2-615 of the C ivil Code an d s up p o rting memorandum of law instanter (735 I L CS 5/2-615 (West 2008)). In that motion, the Attorney Gene ral ex plained that Hardy and Mathy

had not joined Walker’s O ctober 2009 motion to dismiss beca

use of a filing err or wher eby documents from the instant case had been filed with documents from one of three other pending ca s es t h at all involved Dupre e and defe ndants. The At t o rney Gene ral explained further that Dupre e would not be prejudice d beca use the motion to dismiss proff ere d by Har dy and Mathy alleg ed the same arguments as Walker’s motion to dismi ss. ¶ 11 At a Marc h 2010 hear ing, the trial court (1) denied Dupre e’s mo t i o n fo r d ef au l t judgme nt, (2) g rante d Har dy and Mathy leave to file their motion to dismiss
, and (3) g rante d Dupre e 28 day s to f

ile a response to that motion. The court’s docket entry also noted that it would base its judgme nt on the parties’ written arguments only

. In April 2010, Dupre e pro

se filed his answe r to the motion to dism iss filed by Har dy and Mathy

. ¶ 12 In April 2010, the trial cour t entere d the followingdocket e ntry : “In his mandamus p et i tion, [Dupree] seeks the return of persona l proper ty and monetary compensation; restorati o n of y ard privileg es; and pre- I DR status. Yar d

-3-pri v i l eg es and I DR status are discretionar y

. There fore
, [Dupree] is not entitled to mandamus relief

. [Dupree] has soug ht a decla ratory judgme nt on the issue of the confiscation of persona l proper ty

. Howeve r, [Dupree] has failed to state a proper cause of action for decla

ratory relief

. Fo r t h es e rea sons, the Motion to Dismiss is g rante d. Fur thermore
, the court finds that [Dupree’ s] filings are frivolous as they lack an arguable basis in either the law or fac t and that the alleg ations are not supported by any evidenc e. [Dupree] has filed over 10 mandamus petitions during his incar cer ation at P o n t i ac. There fore
, [Dupree] is order ed to pa y the full filing fee s and actua l court costs incurre d in connec tion with thi s matter.” ¶ 13 This appea l followed.

¶ 14 I I . ANALYSI S ¶ 15 Dupre e argues that the trial court err ed by dismiss ing his petition for writ of mandamus

. S pecif ically
, Dupre e contends that he stated a cause of action for mandamus rel i ef b y

asser ting that defe ndants acte d u n l aw fu l ly when they failed to (1) restore his acc ess t o the prison’s exercise y ard, (2) remove all exis ting I DRs from his prison rec ord beca use Walker failed to persona lly revie w and finalize eac h repor t, and (3) return his confiscated “leg al and
persona l proper

ty ” afte r Dupre e had the rele vant I DR expunged. Dupre e also arg ues that the
court err ed by order ing him to pay filing fee s and court costs associate d with his petition for writ of mandamus a

n d denying his reque st for a decla ratory judgme nt. Finally
, Dupre e argues that the court abused its discretion by failing to (1) appoint counsel to repr esent him and (2)
enter defa ult judgment ag ainst defe ndants. We addre ss Dupree ’s ar g uments in turn.

¶ 16 A. The Tr ial Court’s Dismissal of Dupree ’s Petition for Writof Mandamus ¶ 17 1. A Sec tion 2-615 Motion To Dismiss and the Standard of Review ¶ 18 We first note that althoug h Walker’s October 2009 motion to dismiss was broug ht unde r section 2-619(a )(9) of the Civil Code, Walker argued that Dupre e’s mandamus petition was leg ally insufficient, which is a proper challeng e under section 2-615 of the Civil Code. Thus,

we revie w the substance of both motions to dismiss under section 2-615 of the Civil Code. See W inters v. W

angler
, 386 I ll. App. 3d 788, 79 2-93, 898 N.E.2d 776, 780 (2008) (disreg arding the defe ndant’s section 2-619(a )(4) desig nation on his motion to dismiss and i n stead revie wing it under section 2-615 beca use the defe ndant challeng ed the lega l sufficie ncy

of the plaintiff’ s complaint). ¶ 19 A motion to dismiss under s ec t ion 2-615 of the Civil Code (735 I L CS 5/2-615 (West 2008)) “cha lleng es the leg al s u ff i ci en cy of a complaint based on defe cts appar ent on its fac e.” Marshall v. Burger King Corp.
, 222 I ll. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006). W h en re v i ew i ng a trial court’s dismiss al of a complaint under section 2-615 of the Civil Code, we acc ept as true all well-plea ded fac ts contained within the complaint along with the

rea sonable infere nces t h at m ay be drawn there from in the light most favor able to the

-4-plaintiff. Napleton v. Vil lage of Hinsdale
, 374 I ll. App. 3d 1098
, 1 1 0 1
, 872 N.E.2d 23, 27

(2007). Howeve r, this court will disreg ard mere conclusions of law or fac ts not supported by specific fac tual alleg ations. W hite v. DaimlerChrysler Corp.
, 368 I ll. App. 3d 278, 282, 856 N.E.2d 542, 546 (2006). We revie w de novo a trial court’s ruling under section 2-615 of the Civil Code. Poruba v. Poruba , 396 I ll. App. 3d 214, 215, 919 N.E.2d 1066, 1067 (2009).

¶ 20 2. Dupree ’s Mandamus Claims ¶ 21 a. Mandamus Relief ¶ 22 In Rodriguez v. Illinois Prisoner Rev iew Board
, 376 I ll. App. 3d 429, 433-34, 876 N.E.2d 659, 663-64 (2007), the Fifth District discussed mandamus relief
, stating, in pe rtinent part, as follows:

“ Mandamus is an extraordinary civil reme dy that will be g rante d to enfor ce, as a matter of right, the performanc e of officia l nondiscretionar y duties by a p u blic office r. Lee v. Findley
, 359 I ll. App. 3d 1130, 1133, 835 N.E.2d 985, 987 (2005). *** Mandamus will issue only wher e the plaintiff has fulfilled his burden (see Mason v. Snyder
, 332 I ll. App. 3d 834, 840, 774 N.E.2d 457, 461 (2002)) to set forth eve ry materia l fac t neede d
to demonstrate that (1) he has a clea r rig ht to the relief reque sted, (2) there is a clea r duty

on the part of the defe ndant to act, and (3) clea r authority exis ts in the defe ndant to comply with an order g ranting mandamus relief

. Baldacchino v. Thompson
, 289 I ll. App. 3d 104, 109, 682 N.E.2d 182, 186 (1997). A ‘mater ial fac t’ is one that ‘is signific ant or essential to the issue or the matter at hand.’ Bla ck’s L aw Dictionary 611 (7th ed. 1999). Be cause I llinois is a fac t-pleading jurisdiction, a plaintiff is require d to set forth a leg ally

rec og nized claim and plead fac ts in support of eac h element that bring the claim within the cause of action alleg ed. Beahringer v. Page
, 204 I ll. 2d 363, 369, 789 N.E.2d 1216, 1221 (2003).” (Emphasis in orig inal.)

¶ 23 b. Dupre e’s Exercise -Ya rd Claim ¶ 24 Dupre e contends that he st ated a cause of action for manda mu s re l i ef by asser ting that defe ndants acte d unlawfully when they failed to restore his acc ess t o the prison’s ex er ci s e yard. Citi ng section 504.670(a) (2) of title 20 of the Administrative Code, e nti tl e d “ Re c r e a ti o n for Persons in Seg reg ation Status,” Dupre e cl ai m s that he has a “rig ht” to five hours of exercise y ard time per wee k that defe ndants cannot transfor m into a privileg e (20 I ll. Adm. Code 504.670(a) (2) (2011))

. Thus, Dupre e posits that the trial court’s finding that defe ndants had d i scre tionary authority to place restric tions on his acc ess to the prison’s exercise y ard

was e rrone ous. We disagr ee. ¶ 25 We first reje ct Dupre e’s claim that he had a “rig ht” to acc ess the prison’s exercise y ard. In Ashley v. Snyder
, 316 I ll. App. 3d 1252, 1258, 739 N.E.2d 897, 902 (2000), this court held that pri s o n r egulations, such as the Administrative Code, “we re desig ned to provide g uidance
to prison officia ls in the administration of prisons” and “we re neve r intended to confe r rig hts

on inmates or serve as a basis for cons t i tu t i o n al claims.” (Emphasis in orig inal.) See also McNeil v. Carter
, 318 I ll. App. 3d 939, 943, 742 N.E.2d 1277, 1281 (2001) (citing Ashley approving ly
, for the proposition that a statute does not confe r a private right on inmates). The

-5-rationale for such a prohibition is to (1) preve nt inmates–such as Dupre e–fr om “[searc hing]

throug h prison regulations and state statutes in sear ch of mandatory languag e on which to base their purported ‘rig hts’ ” and (2) extract courts from what essentially amounts to daily prison manag eria l decisions. Ashley , 316 I ll. App. 3d at 1259, 739 N.E.2d at 903. ¶ 26 We noted further the followingreg arding

the constitutional rights inmates possess:
“The Constit ution does not require that prisons be comfortable [ citation], only that they supply basic human needs [citation]

. Inmates thus have a constitutional rig ht to adequate s helter, food, drinking water , clothing, sanitation, medical care, and personal safe ty

. [C itations.] Prisoners also have a rea sonable rig ht of acc ess to courts and a rig ht
t o a re asonable opportunity to exercise relig ious fre edom under the first amendment

. [C itation.] Be y ond these, prisoners possess no other rig hts, only privileg es.” Ashley
, 316 I ll. App. 3d at 1258-59, 739 N.E.2d at 903. ¶ 27 We also reje ct Dupre e’s claim that defe ndants lacke d the discretionar y authority to place restric tions on his exercise- y ard privileg es. Section 504.670 of title 20 of the Administrative Code–which Dupr ee r elies upon–also allows the temporary restric tion or sus pension of an inmate’s rec reat ion outside of the cell if it is deter mined that the inmate is a “thre at to the safe ty and secur ity of the fac ility or any person.” 20 I ll. Adm. Code 504.670(b) (2011). Such circ umstances include, but are not limit ed to, the following : (1) inmates who are seg reg ated and under investigation (20 I ll. Adm. Code 504.670(b)( 1)); (2) inmates who have medical

or a mental health condition (20 I ll. Adm. Code 504.670(b)( 2)); (3) inmates who have been witnesses in criminal case s ag ainst other inmates or require prec autions to ensure their safe ty (20 I ll. Adm. Code 504.670(b)( 3)); (4) inmates classified as high esca pe risks (20 I ll. Adm. Code 504.670(b)( 4)); (5) inmates that commit cer tain crimes while seg reg ated (20 I ll. Adm. Code 504.670(c) (1)) ; and (6) inmates who commit major rule o r m i n o r disciplinary infrac tions that are “yard- related” while the offe nder was in a seg reg ation status (20 I ll. Adm. Code 504.670(c) (2), ( c)( 3)). ¶ 28 In his br ief to this court, Dupre e posits only –as he did in his May 2009 petition f or writ of mandamus –that Mathy restric ted his acc ess to the exercise y ard whene ver he rec eived an I DR althoug h “the [I DR] has nothing to do w ith the y ard” and that “nowhe re in T itle 20 of the [Admi nistrative Code] is [Mathy ] allowed to do so.” Howeve r, without more, Dupre e’s claim fails to set forth eve ry materia l fac t required to demonstrate that he is entitled to mandamus relief

. There fore
, we conclude that Dupre e failed to state a cause of action in this
reg ard.

¶ 29 c. Dupr ee’ s I DR Claim ¶ 30 Dupre e also c ontends that he st ated a cause of action for mandamus relief by asser ting that defe ndants acte d unlawfully when they failed to remove all exis ting I DR s fr o m his priso n rec ord beca

use Walker failed to persona lly revie w and finalize eac h repor t. We disag ree

. ¶ 31 Section 5 0 4

. 8 0 5 o f t i t l e 2 0 o f t h e Ad m i n i s t ra t i v e C o d e, which outlines the responsibilities a direc tor or chief administrative office r has p er t ai n i ng to discipline and
g rieva nces, pr ovides as follows:

-6-“a) Unless other wi s e s p ecif ied, the Direc tor or Chief Administrative Offic er may deleg ate responsibilities stated in this Subpart to another person or persons or desig nate another person or persons to per form the duties spec ified. b) No other individual may routinel y p er fo rm duties whene ver a Section in this Subpart specific ally states the Direc tor or Chief Administrative Offic er shall personally perf orm th e duties. Howeve r, the Direc tor or Chief Administrative Offic er may desig nate another person or persons to perf orm the dut ies during periods of hi s or her temporar y absenc e or in a

n emer g ency .” (Empha sis added.) 20 I ll. Adm. Code 504.805 (2011). ¶ 32 Section 504.850 o f t h e Ad m i n i s t rative Code, which perta ins, in part, to an inmate’ s appea l of his gr ievanc e, states a s follows: “The Direc tor shall revie w the finding s and rec ommendations of the Boa rd and make

a fin al d et er mination of the g rieva nce within 6 months afte r rec eipt of the appea led
g rieva nce, wher e rea sonably fea sible under the circ umstances. The offe nder shall be sent a copy of the Dire ctor’s de cision.” 20 I ll. Adm. Code 504.850(f) ( 2011). ¶ 33 In support of his contention, Dupre e relies on an April 2009 aff idavit by Terr

y Ander son, DOC’s chair

person for the Offic e of Inmate I ssues, in which she states, in part, the following : “Walker does not rec eive, rev ie w , or respond to inmate corr espondenc es or g rieva nce appea ls. Instead, *** Walker’s signature is a f f ixe d to r e s p o n s e s to inmate corr espondenc e and g riev an ce appeals by various members of the [Admi nistrative Review Boa rd], including my self, who have the authori t y t o re v iew and sign on [W alker ’s] behalf as administrative desig nees.” ¶ 34 Despite Dupre e’ s re l i an ce , An derson’ s aff idavit does not support his argument but, i n s t ead, mere ly advises him of what the prec eding sections of the Administrative C o d e expressly allow–that is, that Walker can deleg ate the revie w of an inmate’s g rieva nce appea l beca use he i s not require d to personally revie w such appea ls. Thus, we reje ct Dupre e’s contention that he state d a ca use of a ction for mandamus relief in this reg ard.

¶ 35 d. Dupre e’s Prope rty Claim ¶ 36 Dupre e also contends that he st ated a cause of action for mandamus relief by asser ting that defe ndants acte d unlawfully when they failed to return his confi s ca t ed “leg al and
p er s o nal proper

ty ” afte r Dupre e had the rele vant I DR expunged from his rec ord. We disag ree

. ¶ 37 In support of his contention, Dupre e appe n d ed an April 2009 Adjustment Comm ittee Final Summary Report, which expunged an Augu s t 2 0 08 I DR that documented Dupre e’s possession of “Contra b and/Unauthoriz ed Property .” The I DR was expunged beca use the adjustment committee failed to comply with the f o ll owing provisions of section 504.80(h)( 5) of title 20 of the Administrative Code:
“At least one person who serve s as an Adjustment Commi ttee member shall hear the in-person testimony of the offe nder’ s witnesses wher e the offe nder makes a timely
reque st for the witnesses or is g rante d a continuance to reque st witness testimo n y

. I nperson testimony of the offe nder’ s witnesses shall be define d as fac e-to-f ace contac t or

-7-telephonic contac t by the Adjustment Commi ttee.” 20 I ll. Adm. Code 504.80(h)( 5) (2011). ¶ 38 Despite his claim, Dupre e did not alleg e materia l fac ts relating to the “leg al and persona l
proper ty ” at issue, nor the circ umst an ces under which defe ndants purportedly confiscated that proper

ty

. Given that prison officia ls may establish regulations reg arding the property inmates can reta in in their cells (see Ashley
, 3 1 6 I l l

. App. 3d at 1256, 739 N.E.2d at 901 (“[P] rison officia ls ma

y –as a condition of confine ment–establish rules and regulations that limit the t y

pe and qua

ntity of per sonal proper

ty that an inmate may keep in his prison cell, and such rules and regulations do not infring e upon the inmate’s constitutional rig hts.”)), Dupre e has fa i led to set forth ever y materia l fac t require d to demonstrate that (1) he has a clea r rig ht to the relief reque sted, (2) a cl ea r du t y o n t h e part of defe ndants to act, and (3) clea r authority exis ted on the part of defe ndants to comply with an order g ranting mandamus relief . We thus conclude that Dupr ee f ailed to state a

cause of ac tion in thi s reg ard. ¶ 39 In so concluding , we a lso rejec t Dupree ’s claim that he w as entitled to rec over $527 in damag es for his lost, stolen, and confiscated property

. See Behl v. Duffin
, 406 I ll. App. 3d 1084, 1092 (2010) (quoting Hatch v. Szymanski
, 325 I ll. App. 3d 736, 741, 759 N.E.2d 585, 590 (2001) (“ ‘[i] n a mandamus proce eding
, damag es are not a llowed unless the trial court issues the writ’ ” )).

¶ 40 B. The Trial Court’s Impositi on of FilingFe es and Court Costs ¶ 41 Dupre e next argues that the trial court err ed by order ing him to pay filing fee s and cour t costs associate d with his petition for writ of mandamus

. In particula r, Dupre e claims that the

co u rt ’s finding that his petition for writ of mandamus was frivolous beca use it lacke d an arguable ba sis in either the law or fac t was “pla in error .” We disag ree

. ¶ 42 Section 22-105(a ) of the Civil Code provides, in par t, the following : “(a ) I f a prisoner confine d in an I llinois Depa rtment of Cor rections fac ility files a pleading
, motion, or other filing which purports to be a leg al document in a case seeking *** action *** ag ainst *** the I llinois Depa rtment of Correc tions, or t h e P ri soner Review Boa rd
, o r against any of their office rs or employ ees and the Court makes a specific finding t h at t he pleading
, motion, or other filing which purports to be a leg al document filed by the prisoner is frivolous, the prisoner is respon s i b l e for the full
pay ment of filingfee s and ac tual court c osts.” 735 I L CS 5/ 22-105(a ) (West 2008). ¶ 43 Be cause we have previously deter mined that t h e t ri al court did not err by dismiss ing Dupre e’s mandamus petition for failing to state a cause of action and simil arly conclude that, based on that analy sis, Dupr ee’ s contentions wer e fr ivolous, we also reje ct Dupre e’s claim that the cour

t erre d by imposing filingfee s and cour t costs.

-8-¶ 44 C. The Trial Court’s Dismissal of Dupr ee’ s Request for a

Dec laratory

J udg ment ¶ 45 Dupre e also ar gu es t h at t h e trial court err ed by denying his reque st for a dec laratory judgme nt. We disagr ee. ¶ 46 A plaintiff is not entitled to decla ratory relief unless (1) one party has a tang ible interest, (2) the opposing party has an adver se interest, and (3) an actua l c ontroversy exis ts ove r the interest. Beahringer v. Roberts
, 334 I ll. App. 3d 622, 626, 776 N.E.2d 247, 252 (2002). A plaintiff is entitled to injunctive relief if he establishes by a pre pondera

nce of the evidenc e that (1 ) h e p o s s esses a cer tain and clea

rly asce rtainable right that needs protec tion, (2) he would suffe r irrepa

rable injury without protec tion of the injunction, (3) there is no adequate

reme dy at law for the injury
, and (4) he is likely to preva il on the merits. Beahringer
, 334 I ll. App. 3d at 626-27, 776 N .E.2d at 252. ¶ 47 In his October 2009 motion to su p p l em en t re l i ef
, Dupre e’s reque st for a dec laratory judgme nt was comprised solely of the following sentenc e: “I ssue an order /declar atory relief stating that t h e u n l awful confiscation of my leg al proper ty [was] unconstitutional [and] a leg al [hi ndranc e].” Howeve r, as with his proper ty claim contained within his petition for writ of mandamus , Dupre e fa iled to establish that he was entitled to injunctive relief. Thus, the trial court proper ly denied Dupre e’s reque s t for failure to state a cause of action for decla ratory relief

.

¶ 48 D. Dupre e’s Rema ining Claims ¶ 49 Dupre e next argues that the trial court abused its discretion by (1 ) fa i l i n g t o appoint counsel to re prese nt him and (2) fa iling to enter defa ult judgment ag ainst defe ndants.

¶ 50 1. The Standard of Review ¶ 51 A trial court’s deter mination conce rning whether to (1) appoint counsel and (2) g rant or deny a motion for defa

ult judgme nt, will not be disturbed ab s en t an ab use of the court’s discretion. See Doherty v. Caisley
, 104 I ll. 2d 72, 78, 470 N.E.2d 319, 322 (1984) (trial court does not have duty to but may , in its discretion, appoint the public defe nder to repr esent an i n m at e i n civil matters conce rning confine ment); Jack son v. Bailey
, 384 I ll. App. 3d 546, 548, 893 N.E.2d 280, 283 (2008) (“[w]het h er t o g rant or deny a motion for [default judgme nt] is within the sound discretion of the trial court, and will not be reve rsed absent an abuse of discretion or a d en i al o f substantial justice”). A trial court abuses its discretion “whe n it acts arbitra

rily without the employ

ment of conscie ntious judgme nt or if its decision exceeds the bounds of reason and ignor es principles of l aw such that substantial p rejudice has resulted.” Mann v. Upjohn Co.
, 324 I ll. App. 3d 367, 377, 753 N.E.2d 452, 461 (2001) (citin g Ma r r en B u i l ders, Inc. v. Lampert
, 307 I ll. App. 3d 937, 941, 719 N.E.2d 117, 121 (1999))

.

¶ 52 2. Dupree ’s Appointment-of-Counsel Claim ¶ 53 Dupre e contends that the trial court abused its discretion by failing to appoint counsel to

-9-repr esent him. We disag ree

.

¶ 54 As previously stated, mandamus is a civil reme dy and as such, “[a] court has no duty to appoint counsel in a c ivil action.” Brewer v. P eters , 262 I ll. App. 3d 610, 613, 633 N.E.2d 17, 19 (1994). Consequently
, it is well established that an inmate does not have a constitutional rig ht to the a ppointment of counsel in mandamus case s. Doherty
, 104 I ll. 2d
at 76, 4 7 0 N.E.2d at 321. Thus, we reje ct Dupre e’s claim that the trial court abused its discretion by

not appointing c ounsel to repr esent him.

¶ 55 3. Dupree ’s Default-J udgment Claim ¶ 56 Dupre e also contends that the trial court abused its discretion by failing to e nter de fault judgme nt ag ainst defe ndants. We disag ree

. ¶ 57 A trial court may enter a judgme nt by defa

ult “ for want of an appea

ranc e, or for failure
to plead, but the court may in either case , require proof o f the alleg ations of the pleading s upon which relief is soug ht.” 735 I L CS 5/ 2-1301(d) (West 2008). Alt houg h the court may enter a defa

ult judgme nt for want of an appea ranc e, a defa

ult judgme nt is a drastic measure , not to be encour ag ed and to be employ ed only as a last resor t. Rock ford H ousing Authority

v. Donahue
, 337 I ll. App. 3d 571, 573-74, 786 N.E.2d 227, 229 (2003). A trial court should deny a motion for defau l t judgme nt when it results in the denial of substantial justice. Donahue , 337 I ll. App. 3d at 574, 786 N.E.2d at 229. ¶ 58 In this c ase, Dupre e claims that he was denied substantial justi ce. I n particula

r, Dupre e claims that he was prejudice d by the trial court’s failure to g rant his August 2009 and J anuar y 2010 motions for defa

ult judgme nt beca

use defe ndan t s we re “g iven a second bite at the apple” and, as a result, his mandamus claims wer e later denie d in violation of section 2- 1301(d) of

the Civil C ode. ¶ 59 Her e, the rec ord shows that d ef en d an t initially complied with the trial court’s Aug ust 2009 order by filing an October 2009 motion to dismiss on Walker’s b eh al f prior to the court’s November 2009 revie w hear ing. The rec ord also shows that shortly afte r discovering

a cler ical err or that showed Har dy and Mathy had been serve d with Dupre e’s petition, the Attorney Gene ral quickly reque sted leave to add them as parties, alleg ing the same defe ct in their motion to dismiss as Walker alleg ed in his motion. Thus, contrar y to Dupree ’s claim, the rec ord does not show that defe ndants’ actions prejudice d him. More important, g iven that I llinois public policy pref ers to decide leg al issues on their merits, we reje ct Dupre e’s claim that the court abused its discretion by denying his motions for defa ult judgme nt. See Midwest Builder Distributi ng, Inc. v. Lord & Essex, Inc.
, 383 I ll. App. 3d 645, 665, 891 N.E.2d 1, 22 (2007) (I llinois public policy pref ers to decide case s on their meri t s i n stead of dismiss ing them purely

on proce dural g rounds.).

¶ 60 I I I . CONCLUSI ON ¶ 61 For

the re asons stated, we aff irm the trial cour

t’s judgme nt.

¶ 62 Affir

med.

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