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Docket No. 93220-Agenda 10-January 2003.

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

Opinion filed April 3, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, John Beahringer, is an inmate in the custody of theIllinois Department of Corrections. According to plaintiff's brief:"When a recalcitrant bureaucracy failed to respond to hisgrievance over the confiscation of his art materials, he filed a prose complaint for declaratory and injunctive relief againstDepartment officials for a determination *** that the confiscationviolated his [constitutional] rights."

The circuit court of Will County dismissed the complaint forfailure to state a cause of action. With one justice dissenting, theappellate 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 No.3-00-0720 (unpublished order under Supreme Court Rule 23).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 sufficientfacts showing that he exhausted the Department's grievanceprocedure prior to filing his complaint. Accordingly, we reversethe appellate court and affirm the circuit court.

BACKGROUND

In determining whether to allow a motion to dismiss, a courtmust take as true all well-pled allegations of fact contained in thecomplaint and exhibits attached thereto. Haddick v. ValorInsurance, 198 Ill. 2d 409, 414 (2001); Kennedy v. Deere & Co.,118 Ill. 2d 69, 71 (1987).

Plaintiff's complaint alleged as follows. Plaintiff has beenincarcerated in the Illinois Department of Corrections (IDOC orDepartment) since 1992. He is scheduled to be released in August2005. Beginning in 1993, plaintiff actively practiced art whileconfined at various correctional centers including Menard,Pontiac, Big Muddy River, Stateville, and Centralia. He waspermitted to possess and use in his cell art materials that compliedwith IDOC safety and security policies. Plaintiff bought artsupplies from several of the prison commissaries. Indeed, fromOctober 1998 to August 4, 1999, while confined at Centralia,IDOC employed plaintiff as an art instructor. He was allowed topurchase 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 hisfamily and friends" through his art.

On August 18, 1999, IDOC transferred plaintiff fromCentralia to disciplinary segregation at Stateville. He was releasedfrom discipline on February 3, 2000. IDOC officials informedplaintiff that he would no longer be permitted to possess his artmaterials. The officials instructed plaintiff to send his art materialshome or they would be destroyed. An IDOC official informedplaintiff that Stateville no longer had an art program and thatIDOC intended to ban art programs from all of its facilities.Plaintiff's art supplies have been withheld from him since thatdate. Among plaintiff's confiscated items were paints andpaintbrushes; 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'scommissary sold a limited selection of art materials, many ofwhich were similar to those that IDOC officials confiscated fromplaintiff. Also, a number of inmates at Stateville possess artmaterials and practice art in their cells.

On February 9, 2000, plaintiff filed an emergency grievance.On February 10, James Page, the warden at Stateville, deniedplaintiff's emergency grievance because it failed to state therequisite facts for consideration as an emergency pursuant toDepartment regulations. The warden directed plaintiff to file thegrievance with his counselor.

On February 11, Stateville's personal property officer issuedto plaintiff a disposal-of-personal-property notice. The noticerequired plaintiff to have a visitor pick up his art materials or tosend the materials out of the prison at his expense. If plaintifffailed to do either within 60 days, the art materials would bedestroyed.

On February 29, plaintiff filed a grievance through theDepartment's established grievance procedure. His counselorreceived the grievance on March 4 and referred it to a grievanceofficer 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 DonaldGaetz, the assistant warden of operations at Stateville. On March6, plaintiff wrote a letter to Donald Snyder, Jr., the director ofIDOC. In these letters, plaintiff described the circumstancessurrounding the confiscation and sought the return of his artmaterials. Plaintiff received no response to his letters.

On May 6, plaintiff filed in the circuit court of Will Countyhis complaint for declaratory and injunctive relief against Page andSnyder. He alleged as follows. Art "is a clearly established formof speech and expression guaranteed under the First Amendmentto the United States Constitution." Defendants, by taking away hisart supplies, restricted his ability to communicate with his familyand friends through art. Plaintiff sought a declaration thatdefendants violated his first amendment right to free expression byconfiscating his art supplies.

Plaintiff also alleged as follows. He was being permanentlydeprived of his art materials. Without preliminary injunctive relief,plaintiff would lose the supplies, which he could not afford toreplace. Plaintiff sought a preliminary injunction preventing IDOCfrom destroying his art materials.

Defendants filed a motion to dismiss pursuant to section2-615 of the Code of Civil Procedure (735 ILCS 5/2-615(a) (West2000)). Defendants asserted that plaintiff's right to possess his artmaterials did not override the Department's interests in regulatingprisoner conduct. Rather, plaintiff's possession of art materialswas within the safety and security authority of IDOC.

Defendants also asserted that a preliminary injunction wasinappropriate because plaintiff failed to show that he would beirreparably harmed. Defendants argued that plaintiff had the optionof sending his art materials home, where they could be retrievedupon his release from prison. The circuit court granted defendants'motion to dismiss.

A divided panel of the appellate court vacated the circuitcourt's dismissal of plaintiff's complaint, granted his request fora preliminary injunction, and remanded the cause for furtherproceedings. No. 3-00-0720 (unpublished order under SupremeCourt Rule 23). The majority concluded that plaintiff's complaintstated a cause of action for declaratory relief because plaintiffalleged a controversy over whether he had a first amendment rightto possess and use his art supplies. The majority also concludedthat plaintiff was entitled to a preliminary injunction. The majorityreasoned: "If the defendants were allowed to destroy his suppliesor he was required to send the supplies to a friend or familymember, the plaintiff would suffer irreparable harm in that shouldhe succeed on the merits of his petition he would be forced topurchase new supplies."

Justice Breslin dissented. Analyzing the merits of plaintiff'scomplaint, Justice Breslin concluded that plaintiff could notsuccessfully plead a cause of action for either declaratory orinjunctive relief. Justice Breslin noted that plaintiff's property wasconfiscated when he was transferred from a minimum securityfacility to a maximum security facility and placed in segregation.Following plaintiff's release from segregation, Justice Breslinopined, it was the responsibility of IDOC to control plaintiff, andcourts 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'sclaims pursuant to section 2-615 of the Code of Civil Procedure(735 ILCS 5/2-615 (West 2000)). A section 2-615 motion attacksthe legal sufficiency of a complaint. The motion does not raiseaffirmative factual defenses, but rather alleges only defects on theface of the complaint. The question presented by a section 2-615motion to dismiss is whether the allegations of the complaint,when viewed in a light most favorable to the plaintiff, aresufficient to state a cause of action upon which relief can begranted. A cause of action will not be dismissed on the pleadingsunless it clearly appears that no set of facts can be proved whichwill entitle the plaintiff to recover. Vernon v. Schuster, 179 Ill. 2d338, 344 (1997); Bryson v. News America Publications, Inc., 174Ill. 2d 77, 86-87 (1996).

Moreover, Illinois is a fact-pleading jurisdiction. A plaintiffmust allege facts sufficient to bring his or her claim within thescope 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 statea cause of action for declaratory judgment because: (1) plaintiffdid not exhaust IDOC's grievance procedure prior to filing hiscomplaint, and (2) plaintiff did not allege a first amendmentviolation. "A court will consider a constitutional question onlywhere essential to the disposition of a case, i.e., where the casecannot be determined on other grounds." Bonaguro v. CountyOfficers Electoral Board, 158 Ill. 2d 391, 396 (1994) (and casescited 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 statea cause of action it becomes unnecessary to pass upon theconstitutional questions"). Accordingly, we first consider whetherplaintiff was required to exhaust IDOC's grievance procedureprior to filing his complaint and, if so, whether plaintiff pledsufficient facts showing that he had done so. See, e.g., Bank ofLyons v. County of Cook, 13 Ill. 2d 493, 497 (1958).

A. Exhaustion of Administrative Remedy

Plaintiff initially responds that defendants waived the issue ofwhether he exhausted IDOC's grievance procedure. Plaintiff notesthat defendants did not raise the exhaustion issue in the circuitcourt as part of their motion to dismiss. Rather, according toplaintiff, defendants first raised this issue in the appellate court.Plaintiff asserts that defendants' failure to raise this issue in thecircuit court constitutes a waiver of this issue.

We disagree. Defendants were the appellees in the appellatecourt. It is quite established that "the appellee may urge any pointin support of the judgment on appeal, even though not directlyruled on by the trial court, so long as the factual basis for suchpoint was before the trial court." Shaw v. Lorenz, 42 Ill. 2d 246,248 (1969). Since plaintiff's complaint and attached exhibitsprovide 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 onfederal law. Plaintiff expressly seeks declaratory relief pursuant toour declaratory judgment statute, codified in section 2-701 of theCode of Civil Procedure (735 ILCS 5/2-701 (West 2000)).However, defendants assert that plaintiff "sought to vindicate analleged violation of his federally protected First Amendmentrights." Defendants reason: "The appropriate and common vehiclefor contesting alleged constitutional rights violations by stateofficials is through a civil rights action pursuant to 42 U.S.C.