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No. 3--01--0333

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The plaintiff, John Beahringer, filed a suit for declaratoryjudgment and injunctive relief against the defendants, DebraRoberts and Donald Snyder, Jr. In his complaint, he alleged thatthe defendants were depriving him of his first amendment rights byfailing to process his mail fairly and promptly. He also claimedthat Snyder had failed to provide various documents he requestedpursuant to the Freedom of Information Act (5 ILCS 140/1 et seq.(West 2000)). The trial court granted the defendants' motion todismiss on the ground that Beahringer failed to state a claim uponwhich relief could be granted. We affirm in part, reverse in partand remand for further proceedings.

In March of 2000, the plaintiff filed a six-count complaintfor declaratory and injunctive relief against defendants Snyder andRoberts as employees of the Department of Corrections (Department). At that time, Snyder was the director of the Department and Robertswas the supervisor of the Stateville Correctional Center mail room.

Count I of the complaint claimed that Beahringer delivered abirthday card addressed to his father to the Stateville mail room. A mail room employee returned the card to him because it wasoversized and requested that Beahringer include a manila envelopefor mailing. Beahringer purchased the required envelope for anadditional eight cents and returned the item for postage. He wascharged 55 cents to mail the card. Beahringer filed a grievanceand complained that the requirement that outgoing cards be placedin manila envelopes violated his constitutional rights. Inaddition, he complained that both the card and the manila envelopeweighed less than one ounce and that Stateville overcharged him 22cents for postage.

Beahringer's second count alleged that on December 3, 1999, hesent an item to the mail room in a first-class prestamped envelopeand requested that the letter be sent certified mail. According tothe attached exhibit, he also asked for "a receipt of form uponmailing." The mailing form was signed by Beahringer and authorizedpayment of $1.40 for certification. Mail room employees processedthe letter and added an additional fee of $1.25 for "returnreceipt" services. Beahringer filed a grievance with theadministrative officer over the added charge.

Count III alleged that on December 6, 1999, he sent the mailroom a 10 inch by 13 inch manila envelope containing two sheets ofpaper and was charged 55 cents for mailing it. According toBeahringer, the envelope weighed less than one ounce and shouldhave been posted at 33 cents.

In count IV, Beahringer complained that on January 7, 2000, hereceived a Christmas card that had been postmarkedDecember 4, 1999. He claimed that the mail room received the cardweeks prior to its January 7 delivery. He alleged that the delaywas due to the understaffed operation of the mail room during theholiday season.

On December 27, 1999, Beahringer sent a letter to the mailroom addressed to the Federal Bureau of Investigation marked"Privileged Mail" and one addressed to the "Legal Department" ofthe U.S. Department of Commerce. Count V claimed that both letterswere returned to him with a notice that they must be deliveredunsealed because they did not qualify as "legal mail." Beahringercomplained that the letters should have been mailed in sealedenvelopes because they met the requirements for "outgoingprivileged mail" and "legal mail" as defined in title 20 of theIllinois Administrative Code (Administrative Code) (20 Ill. Adm.Code 525.110 (2001)).

Last, count VI alleged that Beahringer had made severalrequests for documents under the Freedom of Information Act. According to the plaintiff, he had not received any of therequested materials as of the date of his complaint.

Beahringer sought a declaration that he was legally entitledto the same postal rates and fees as those provided through theUnited States Postal Service, prompt delivery of incoming andoutgoing mail, and unregulated access to postal services. He alsorequested a declaration that he had a right to post legal andprivileged mail in sealed envelopes and a declaration that he hada right to receive requested materials from the Department underthe Freedom of Information Act.

The plaintiff's motion for a preliminary injunction wassimilarly grounded. He alleged that his first amendment right tofreedom of communication and his fourteenth amendment rights toequal protection and due process were violated by the defendants'mail room policies. He requested an order enjoining the defendantsfrom (1) requiring him to mail greeting cards in a manila envelope,(2) charging excess postage, and (3) restricting him fromdelivering "privileged" mail to the Department mail offices in asealed envelope.

On May 25, 2000, the defendants filed an appearance and soughtleave to file a motion to dismiss. Their request was granted. Five days later, the clerk of the court filed a motion for defaultjudgment against the defendants on Beahringer's behalf. Accordingto Beahringer, the motion was mailed to the clerk of the court twoweeks earlier. On June 21, 2000, the defendants filed a motion todismiss Beahringer's complaint pursuant to section 2--615 of theCode of Civil Procedure (735 ILCS 5/2--615 (West 2000)). Beahringer subsequently filed a motion for substitution of JudgeEdwin Grabiec. The motion was denied as moot due to thereassignment of the circuit court docket. In November of 2000,Judge Charles Connor entered an order stating that he hadconsidered the pleadings and arguments of the parties and wasgranting the defendants' motion to dismiss. The record does notinclude a transcript of the proceedings or a bystander's report.

Beahringer filed a motion to reconsider and requested leave tofile an amended complaint. In response, the defendants stated thatthey had no objection to allowing Beahringer to amend his pleading. The plaintiff filed a reply but did not include an amendedcomplaint for the court's consideration. The trial court deniedhis motion to reconsider and Beahringer appeals.

On appeal, Beahringer claims that the trial court erred indismissing his complaint because he alleged sufficient facts tosupport an action for declaratory judgment and injunctive relief.

We review an order granting a motion to dismiss pursuant tosection 2--615 de novo. Mt. Zion State Bank & Trust v.Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863(1995). On appeal, we must determine whether the allegations ofthe plaintiff's complaint, when construed in the light mostfavorable to him, are sufficient to establish a cause of actionupon which relief may be granted. Connick v. Suzuki Motor Co.,Ltd., 174 Ill. 2d 482, 675 N.E.2d 584 (1996). All well-pleadedfacts in the complaint must be considered as true. Bryson v. NewsAmerica Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207 (1996).

A plaintiff is not entitled to declaratory relief unless (1)the plaintiff has a tangible interest, (2) the defendant has anadverse interest, and (3) an actual controversy exists over theinterest. Alicea v. Snyder, 321 Ill. App. 3d 248, 748 N.E.2d 285(2001). To prove the plaintiff is entitled to injunctive relief,he is required to establish by a preponderance of the evidence that(1) he possesses a certain and clearly ascertainable right whichneeds protection, (2) he would suffer irreparable injury withoutprotection of the injunction, (3) there is no adequate remedy atlaw for the injury, and (4) he is likely to prevail on the merits. A-Tech Computer Services, Inc. v. Soo Hoo, 254 Ill. App. 3d 392,627 N.E.2d 21 (1993).

Beahringer first argues that the trial court improperlydismissed counts I through IV because his complaint raised validconstitutional claims. He further alleges that these claims werenot overcome by the defendants because they failed to demonstratethat the mail room practices were "reasonably related to legitimatepenological interests."

It is well settled that officials may not arbitrarily impingeupon the first amendment rights of prisoners to communicate withothers through the mail service. Thornburgh v. Abbott, 490 U.S.401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989); see also Sizemorev. Williford, 829 F.2d 608 (1987). Prison regulations or practicesaffecting a prisoner's receipt of mail must be "reasonably relatedto legitimate penological interests." Thornburgh, 490 U.S. 401,409, 104 L. Ed. 2d 459, 467, 109 S. Ct. 1874, 1881. However,prison security is a sufficiently important governmental interestto support limitations on prisoners' rights. Rowe v. Shake, 196F.3d 778 (7th Cir. 1999). Thus, merely alleging an isolated delayor a relatively short-term, noncontent-based disruption in thedelivery of inmate mail will not support a cause of action upon thefirst amendment, even against a motion to dismiss. Sizemore, 829F.2d 608.

Measured against these standards, Beahringer's factualallegations do not state a first amendment claim. Accepting hisclaims as true, Stateville's mail room practices were notindividually or intentionally directed toward the plaintiff. Moreover, the alleged delay in receiving his mail was relativelyshort-term in light of the holiday season. We also note thatBeahringer does not allege that the excessive mail room charges anddelays were the result of content-based prison regulations orpractices. See Sizemore, 829 F.2d 608 (plaintiff stated a

first amendment claim based on allegations that prison officialsrefused to deliver otherwise unobjectionable magazines toplaintiff). Thus, as alleged in counts I through IV, thedefendants mail room procedures and regulations do not impinge uponBeahringer's right to freedom of communication. The trial courtproperly dismissed these counts.

Count V of the plaintiff's complaint alleges that thedefendants refused to send two letters, one labeled "PrivilegedMail" and another marked "Legal Mail" in the sealed envelopes inwhich they were delivered. The plaintiff maintains that theseactions violated his constitutional rights as well as Departmentregulations.

Under the Administrative Code, outgoing "privileged mail" mustbe clearly marked as "privileged" and sealed by the prisoner. Ifmail is clearly marked "privileged" and addressed to a privilegedparty, it may not be opened for inspection. 20 Ill. Adm. Code