                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Duane v. Hardy, 2012 IL App (3d) 110845




Appellate Court            DANIEL DUANE, Plaintiff-Appellant, v. MARCUS HARDY,
Caption                    Defendant-Appellee.



District & No.             Third District
                           Docket No. 3-11-0845


Filed                      September 13, 2012


Held                       Plaintiff inmate’s petition for a writ of mandamus alleging that he was
(Note: This syllabus       entitled to one hour of out-of-cell exercise per day was properly
constitutes no part of     dismissed on the ground that he could not establish a clear right to the
the opinion of the court   relief he requested.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 10-MR-611; the Hon.
Review                     Marzell L. Richardson, Jr., Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Daniel Duane, of Joliet, appellant pro se.
Appeal
                           Lisa Madigan, Attorney General, of Chicago (Mary C. Labrec, Assistant
                           Attorney General, of counsel), for appellee.


Panel                      JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
                           Justices Lytton and Wright concurred in the judgment and opinion.



                                             OPINION

¶1          Plaintiff Daniel Duane, an inmate at Stateville Correctional Center, brought a mandamus
        action seeking the trial court order defendant Marcus Hardy, the Stateville warden, to comply
        with statutory provisions Duane maintains allow him one hour of out-of-cell exercise per
        day. The trial court dismissed Duane’s mandamus petition for failure to state a claim upon
        which relief may be granted. He appealed. We affirm.

¶2                                              FACTS
¶3          Plaintiff Daniel Duane is an inmate incarcerated by the Illinois Department of
        Corrections (IDOC) at Stateville Correctional Center. Duane suffers from Type II diabetes,
        hepatitis C, hypothyroidism, a goiter, and a right inguinal hernia. In July 2009, while housed
        at Menard Correctional Center, Duane filed an IDOC grievance, complaining that he was
        denied one hour daily out-of-cell exercise he claimed was mandated by section 3-7-2(c) of
        the Unified Code of Corrections (Unified Code). 730 ILCS 5/3-7-2(c) (West 2008). Duane
        forwarded the grievance to the Menard grievance officer, the Menard warden, and twice to
        the Administrative Review Board (ARB). There is no record of any responses to the
        grievance. On December 20, 2009, Duane filed another grievance in which he complained
        that IDOC denied him the ability to monitor his blood sugar and to obtain adequate exercise
        to combat his diabetes. He did not receive a response from his IDOC counselor, and
        forwarded the grievance to the grievance officer and twice to the ARB. The record does not
        indicate any responses to the grievance. In February 2010, Duane was transferred to
        Stateville, and the following month, Duane forwarded the July and December 2009
        grievances to defendant Marcus Hardy, the warden at Stateville. There are no responses from
        Hardy in the record.
¶4          In June 2010, Duane filed a petition for mandamus in which he argued that Hardy refused
        to perform “specific ministerial duties” such as allowing one hour of out-of-cell exercise time
        per day pursuant to section 3-7-2(c) of the Unified Code. 730 ILCS 5/3-7-2(c) (West 2008).
        Duane further argued that he has a “clear entitlement to performance” of the out-of-cell
        exercise requirement and that his medical conditions necessitate exercise as “an
        indispensable component of preventive medicine,” the denial of which adversely affects his

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     health. Duane also argued the denial of his one hour of out-of-cell exercise without notice
     or hearing violated his due process rights. Copies of Duane’s grievances were attached to the
     petition. On the copies, Duane had noted the administrative steps he took and the lack of
     response to the grievance. Hardy responded to the mandamus petition with a motion to
     dismiss. In his motion, Hardy argued that Duane failed to state a claim because the statutory
     provision on which Duane relied does not require that inmates be given one hour of exercise
     out of their cells each day, but rather only that inmates be given one hour of out-of-cell time.
     Pursuant to the trial court’s order, Hardy provided IDOC records reflecting out-of-cell
     movements of Duane’s “gallery.” The records established that Duane was given out-of-cell
     opportunities for an hour each day in compliance with the statutory directives.
¶5       Duane responded with an addendum to his mandamus petition, asserting that because
     IDOC was required to allow inmates to exercise out of their cells for one hour each day, any
     other out-of-cell time that IDOC records indicate occurred does not comply with the statutory
     requirements. In his addendum, Duane argued that the statutory language of section 3-7-2(c)
     of the Unified Code is vague and urged the trial court to look to other contemporaneous
     interpretations of the statutory requirement, which he maintained indicate it provides for one
     hour of out-of-cell exercise daily. He attached affidavits from four other inmates from his
     cell block in which they attested that out-of-cell time for meals amounted only to
     approximately 30 or 40 minutes and included only 10 to 12 minutes of actual physical
     movement. Duane also attached the Stateville handbook, which referenced inmate rights,
     including recreation and exercise. Excerpts from Westlaw key digests and Illinois Law and
     Practice were also attached as support for the exercise requirement.
¶6       Duane filed a motion to strike as irrelevant the IDOC records indicating any nonexercise
     out-of-cell time. He contended that the information provided by the IDOC was misleading
     and not reflective of his individual movements. During the pendency of this mandamus
     action, Duane filed an additional IDOC grievance complaining that the time he is allotted to
     eat his meals is insufficient, prevents him from properly chewing and digesting his foods, and
     causes him indigestion. The IDOC counselor responded that in order for the entire institution
     to eat, inmates are given 10 minutes “per chow hall to eat.” The record does not include any
     other responses to the grievance. Duane noted that he submitted the grievance to the
     grievance officer in August 2011 and to the ARB in September 2011. The trial court held this
     grievance admissible, but denied Duane’s motion to strike and found the IDOC documents
     also admissible.
¶7       A hearing took place on Hardy’s motion to dismiss. The trial court granted the dismissal
     with prejudice, finding that the statute provides an hour of out-of-cell time but does not
     require that it be specifically for one hour of daily exercise. According to the trial court,
     under the statute, out-of-cell time may consist of “everyday activities such as meals, showers,
     counseling, classes, etc.” and the evidence established that Duane is “outside of his cell at
     least one hour each day during his normal activities.” The trial court further found Duane
     failed “to demonstrate a clear right to a daily release from his cell of one hour exclusively for
     exercise.” Duane appealed.



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¶8                                            ANALYSIS
¶9          The issue on appeal is whether the trial court erred when it granted Hardy’s motion to
       dismiss Duane’s mandamus petition. Duane argues that the trial court based its dismissal
       order on an incorrect interpretation of section 3-7-2(c) of the Unified Code. Per Duane’s
       interpretation, he is entitled to one hour of out-of-cell exercise daily, which Hardy failed to
       provide. We note as a preliminary matter that Duane has satisfied the exhaustion
       requirements by indicating the grievance process he pursued and the lack of response from
       IDOC. Turner-El v. West, 349 Ill. App. 3d 475, 484-85 (2004) (before seeking judicial
       review of grievance, inmate must pursue all administrative remedies).
¶ 10        A motion to dismiss under section 2-615 of the Code of Civil Procedure (Civil Code) is
       proper when the complaint fails to state a claim on which relief can be granted. 735 ILCS
       5/2-615 (West 2008). When reviewing the grant of a motion to dismiss, we must accept as
       true all well-pleaded facts and reasonable inferences drawn from them and view those facts
       in a light most favorable to the plaintiff. Dupree v. Hardy, 2011 IL App (4th) 100351, ¶ 19.
       This court will disregard mere conclusions of law or facts that are unsupported by the
       evidence. Id. Illinois is a fact-pleading jurisdiction and a plaintiff must allege facts sufficient
       to state a cause of action to survive a motion to dismiss. Beahringer v. Page, 204 Ill. 2d 363,
       369 (2003). Our review of the grant of a motion to dismiss is de novo. Beahringer, 204 Ill.
       2d at 369.
¶ 11        Mandamus is an extraordinary remedy that is granted to enforce the performance of a
       public officer’s official nondiscretionary duties as a matter of right. Rodriguez v. Illinois
       Prisoner Review Board, 376 Ill. App. 3d 429, 433-34 (2007). For mandamus to issue, a
       plaintiff must establish material facts that demonstrate (1) his clear right to the requested
       relief, (2) a clear duty on the defendant to act, and (3) clear authority existing in the
       defendant to comply with an order granting mandamus relief. Rodriguez, 376 Ill. App. 3d at
       433-34. We will reverse the trial court’s denial of mandamus relief on factual grounds only
       when it is against the manifest weight of the evidence. Lucas v. Taylor, 349 Ill. App. 3d 995,
       998 (2004). We review de novo the dismissal of a petition for mandamus. Rodriguez, 376
       Ill. App. 3d at 434.
¶ 12        When a court construes a statute, its primary objective is to ascertain and give effect to
       the legislature’s intent. Sandholm v. Kuecker, 2012 IL 111443, ¶ 41. The statute’s language
       is the best indicator of legislative intent and it should be given its plain and ordinary
       meaning. Id. Where the language is clear and unambiguous, a construing court must not
       resort to further aids of construction in interpreting the statute. People v. Jones, 223 Ill. 2d
       569, 581 (2006). The doctrine of contemporaneous construction, pursuant to which courts
       give weight to the continuous interpretation of a statute by those charged with its
       administration and enforcement, is not applicable where there is no need of statutory
       interpretation. Cesarini v. Board of Trustees of the Illinois Municipal Retirement Fund, 141
       Ill. App. 3d 848, 854 (1986). The doctrine may be used only when the statutory language is
       ambiguous and susceptible of more than one reasonable interpretation. Cesarini, 141 Ill.
       App. 3d at 854. We review issues of statutory interpretation de novo. Jones, 223 Ill. 2d at
       580.


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¶ 13       Section 3-7-2(c) of the Unified Code provides:
                “(c) All institutions and facilities of the Department shall provide facilities for every
           committed person to leave his cell for at least one hour each day unless the chief
           administrative officer determines that it would be harmful or dangerous to the security
           or safety of the institution or facility.” 730 ILCS 5/3-7-2(c) (West 2008).
¶ 14       Duane asserts that the proper interpretation of section 3-7-2(c) affords him one of hour
       out-of-cell exercise time each day. He cites to national correctional standards, Westlaw
       annotations and digest references, federal cases, and the Stateville orientation manual as
       support for his interpretation of the statute and to establish his constitutional claims. We
       reject Duane’s assertion and consider that the trial court’s interpretation that section 3-7-2(c)
       does not mandate one hour of daily out-of-cell exercise was not in error and that the proper
       interpretation does not deprive Duane of his rights to due process under the fourteenth
       amendment and to be free from cruel and unusual punishment under the eighth amendment.
¶ 15       Contrary to Duane’s assertion, he has no enforceable rights under section 3-7-2(c). Prison
       regulations, including statutory provisions, do not confer rights on inmates or provide a basis
       for an inmate’s constitutional claims. Dupree, 2011 IL App (4th) 100351, ¶¶ 25-26 (quoting
       Ashley v. Snyder, 316 Ill. App. 3d 1252, 1258 (2000)). Other than the fundamental rights
       afforded them under the United States Constitution, inmates possess only privileges. Dupree,
       2011 IL App (4th) 100351, ¶ 26 (quoting Ashley, 316 Ill. App. 3d at 1258-59). Moreover, the
       plain language of section 7-3-2(c) gives Duane the right to one hour of daily out-of-cell time;
       it does not mandate that the time be targeted for exercise. Rather, the statute instructs only
       that inmates be afforded facilities where they can be out of their cell for one hour each day.
       As determined by the trial court, out-of-cell opportunities may include visits to the showers,
       library, or health care unit, sessions with a counselor, participation in classes, and yard and
       gym time. The trial court ordered the IDOC to submit documents evidencing that Duane was
       given one hour out-of-cell time daily. Upon review of the documents, the trial court found
       that Duane was provided daily out-of-cell opportunities sufficient to comply with section 3-
       7-2(c). Its finding was not against the manifest weight of the evidence.
¶ 16       Duane further argues that his rights to procedural due process were violated when the
       IDOC, without giving him notice and an opportunity to be heard, deprived him of one hour
       of daily out-of-cell exercise time which he claims is an entitlement afforded him under
       section 3-7-2(c). Duane’s argument must fail. Provisions in the Unified Code do not create
       any more rights for inmates than are constitutionally required. Jackson v. Randle, 2011 IL
       App (4th) 100790, ¶ 17 (inmate’s constitutional rights include only “adequate water, shelter,
       food, drinking water, clothing, sanitation, and medical care, personal safety, reasonable
       access to courts, and the reasonable opportunity to exercise religious freedom”). Because
       Duane is not entitled under the statute to one hour of daily exercise out of his cell, he cannot
       claim a due process violation based on IDOC’s alleged failure to provide him notice and an
       opportunity to be heard before he is deprived of the claimed right. Ashley, 316 Ill. App. 3d
       at 1255 (“states cannot create enforceable liberty interests in freedom from the routine
       deprivations and discomforts of prison life”). We find Duane’s due process rights were not
       violated by the IDOC’s failure to schedule one hour of daily out-of-cell exercise for him.


                                                  -5-
¶ 17        Finally, Duane maintains that the IDOC’s refusal to comply with the statutory
       requirement that affords him one hour of out-of-cell daily exercise constitutes cruel and
       unusual punishment as applied to him due to his medical issues, which include diabetes.
       Prison procedures violate the eighth amendment when (1) the alleged deprivation is
       sufficiently serious under an objective standard and (2) the act of deprivation was performed
       with a sufficiently culpable state of mind under a subjective standard. Arnett v. Snyder, 331
       Ill. App. 3d 518, 525 (2001). Duane complains that due to his health issues, which he asserts
       necessitate regular exercise to keep under control, the lack of daily out-of-cell exercise
       creates a sufficiently serious deprivation, of which IDOC officials are aware. However,
       Duane does not provide any specific facts alleging he was unable to exercise on a daily basis
       or pointing to injury or illness he suffered from lack of out-of-cell exercise. Moreover, Duane
       does not argue his in-cell movement is limited. He is free to exercise in his cell as a means
       to alleviate his health issues and promote his physical fitness. We find no eighth amendment
       violation.
¶ 18        Because Duane is not entitled to one hour of daily out-of-cell exercise under section 3-7-
       2(c) of the Unified Code, he cannot establish a clear right to his requested relief. We thus
       hold that Duane’s mandamus action was properly dismissed with prejudice by the trial court.
¶ 19        For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 20      Affirmed.




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