Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cedric Dupree v. Marcus Hardy

July 20, 2011

CEDRIC DUPREE,
PLAINTIFF-APPELLANT,
v.
MARCUS HARDY, WARDEN;
JOSEPH MATHY, ACTING WARDEN; AND ROGER WALKER, DIRECTOR, THE DEPARTMENT OF CORRECTIONS,
DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Livingston County No. 09MR55 Honorable Jennifer H. Bauknecht, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Turner and McCullough concurred in the judgment and opinion.

OPINION

¶ 1 In May 2009, plaintiff, Cedric Dupree, an inmate at Pontiac Correctional Center, pro se filed a petition for writ of mandamus under article 14 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/14-101 through 14-109 (West 2008)), alleging that defendants, Marcus Hardy (Pontiac's warden), Joseph Mathy (Pontiac's acting warden), and Roger Walker (Director of the Department of Corrections (DOC)), acted unlawfully by depriving him of certain property, exercise privileges, and administrative action.

¶ 2 In October 2009, Walker filed a motion to dismiss Dupree's petition under section 2-619(a)(9) of the Civil Code (735 ILCS 5/2-619(a)(9) (West 2008)). In January 2010, Hardy and Mathy filed a motion to dismiss Dupree's petition under section 2-615 of the Civil Code (735 ILCS 5/2-615 (West 2008)). At an April 2010 hearing on defendants' respective motions, the trial court (1) dismissed Dupree's mandamus petition and (2) ordered Dupree to pay the filing fees and court costs associated with that petition, which the court characterized as "frivolous."

¶ 3 Dupree pro se appeals, making several claims related to the trial court's dismissal of his mandamus petition. We affirm.

¶ 4 I. BACKGROUND

¶ 5 In May 2009, Dupree pro se filed a petition for writ of mandamus, alleging that Hardy, Mathy, and Walker acted unlawfully by failing to (1) restore his access to the prison's exercise yard, (2) remove all existing inmate disciplinary reports (IDRs) from his prison record because Walker failed to personally review and finalize each report, and (3) return his confiscated "legal and personal property" after Dupree had the relevant IDR expunged. Dupree's petition also sought $527 in damages for his lost, stolen, and confiscated property. That same day, Dupree also filed a motion for appointment of counsel, which the trial court denied three days later.

¶ 6 Following an August 18, 2009, review hearing, the trial court entered a docket entry (1) noting that a return of service had yet to be filed and (2) ordering the Attorney General for the State of Illinois to file an appearance and responsive pleading within 45 days. A week later, Dupree pro se filed a motion for default judgment.

¶ 7 On October 7, 2009, the Attorney General--on Walker's behalf--filed a motion to dismiss Dupree's petition for writ of mandamus under section 2-619(a)(9) of the Civil Code (735 ILCS 5/2-619(a)(9) (West 2008)). In the memorandum of law in support of that motion, the Attorney General noted that as of October 2009, Hardy and Mathy had not been served with Dupree's complaint.

¶ 8 The following day, Dupree pro se filed a motion to supplement relief, requesting that the trial court permit him to supplement the relief he sought in his May 2009 petition for writ of mandamus. In particular, Dupree requested (1) a declaratory judgment that defendants' unlawful confiscation of his "legal property" was unconstitutional and posed "a legal [hindrance]" and (2) an order, requiring defendants to provide him copies of all the grievances he had filed and the respective responses because defendants had destroyed those documents. On October 13, 2009, Dupree pro se filed a motion for stay, essentially requesting that the court address his motion for default judgment before requiring him to provide an answer to Walker's motion to dismiss.

¶ 9 Following a November 2009 hearing, the trial court (1) denied Dupree's motion for default judgment, finding that no evidence was shown that Hardy and Mathy were served with Dupree's petition for writ of mandamus; (2) denied Dupree's motion for a stay; and (3) granted Dupree's motion to supplement relief.

¶ 10 On January 5, 2010, Dupree pro se filed (1) an answer to Walker's motion to dismiss and (2) a motion for default judgment against Hardy and Mathy, which was premised on a May 2009 docket entry that showed his mandamus petition had been mailed to each defendant. On January 21, 2010, the Attorney General--on behalf of Hardy and Mathy--filed a motion for leave to file a motion to dismiss under section 2-615 of the Civil Code and supporting memorandum of law instanter (735 ILCS 5/2-615 (West 2008)). In that motion, the Attorney General explained that Hardy and Mathy had not joined Walker's October 2009 motion to dismiss because of a filing error whereby documents from the instant case had been filed with documents from one of three other pending cases that all involved Dupree and defendants. The Attorney General explained further that Dupree would not be prejudiced because the motion to dismiss proffered by Hardy and Mathy alleged the same arguments as Walker's motion to dismiss.

¶ 11 At a March 2010 hearing, the trial court (1) denied Dupree's motion for default judgment, (2) granted Hardy and Mathy leave to file their motion to dismiss, and (3) granted Dupree 28 days to file a response to that motion. The court's docket entry also noted that it would base its judgment on the parties' written arguments only. In April 2010, Dupree pro se filed his answer to the motion to dismiss filed by Hardy and Mathy.

¶ 12 In April 2010, the trial court entered the following docket entry:

"In his mandamus petition, [Dupree] seeks the return of personal property and monetary compensation; restoration of yard privileges; and pre-IDR status. Yard privileges and IDR status are discretionary. Therefore, [Dupree] is not entitled to mandamus relief. [Dupree] has sought a declaratory judgment on the issue of the confiscation of personal property. However, [Dupree] has failed to state a proper cause of action for declaratory relief. For these reasons, the Motion to Dismiss is granted. Furthermore, the court finds that [Dupree's] filings are frivolous as they lack an arguable basis in either the law or fact and that the allegations are not supported by any evidence. [Dupree] has filed over 10 mandamus petitions during his incarceration at Pontiac. Therefore, [Dupree] is ordered to pay the full filing fees and actual court costs incurred in connection with this matter."

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Dupree argues that the trial court erred by dismissing his petition for writ of mandamus. Specifically, Dupree contends that he stated a cause of action for mandamus relief by asserting that defendants acted unlawfully when they failed to (1) restore his access to the prison's exercise yard, (2) remove all existing IDRs from his prison record because Walker failed to personally review and finalize each report, and (3) return his confiscated "legal and personal property" after Dupree had the relevant IDR expunged. Dupree also argues that the court erred by ordering him to pay filing fees and court costs associated with his petition for writ of mandamus and denying his request for a declaratory judgment. Finally, Dupree argues that the court abused its discretion by failing to (1) appoint counsel to represent him and (2) enter default judgment against defendants. We address Dupree's arguments in turn.

¶ 16 A. The Trial Court's Dismissal of Dupree's

Petition for Writ of Mandamus

¶ 17 1. A Section 2-615 Motion To Dismiss and the Standard of Review

¶ 18 We first note that although Walker's October 2009 motion to dismiss was brought under section 2-619(a)(9) of the Civil Code, Walker argued that Dupree's mandamus petition was legally insufficient, which is a proper challenge under section 2-615 of the Civil Code. Thus, we review the substance of both motions to dismiss under section 2-615 of the Civil Code. See Winters v. Wangler, 386 Ill. App. 3d 788, 792-93, 898 N.E.2d 776, 780 (2008) (disregarding the defendant's section 2-619(a)(4) designation on his motion to dismiss and instead reviewing it under section 2-615 because the defendant challenged the legal sufficiency of the plaintiff's complaint).

¶ 19 A motion to dismiss under section 2-615 of the Civil Code (735 ILCS 5/2-615 (West 2008)) "challenges the legal sufficiency of a complaint based on defects apparent on its face." Marshall v. Burger King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006). When reviewing a trial court's dismissal of a complaint under section 2-615 of the Civil Code, we accept as true all well-pleaded facts contained within the complaint along with the reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Napleton v. Village of Hinsdale, 374 Ill. App. 3d 1098, 1101, 872 N.E.2d 23, 27 (2007). However, this court will disregard mere conclusions of law or facts not supported by specific factual allegations. White v. DaimlerChrysler Corp., 368 Ill. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.