McCabe v. Blagojevich et al
Filing
111
OPINION: Granting Defendants' 80 Motion for Summary Judgment. Entered by Judge Sue E. Myerscough on 9/26/2012. (CT, ilcd)
E-FILED
Wednesday, 26 September, 2012 10:55:35 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERRY L. MCCABE,
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Plaintiff,
v.
LARRY J. PHILLIPS, et al.,
Defendants,
08-CV-3091
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se, is detained in the Rushville Treatment
and Detention Center. On July 13, 2009, Judge Baker allowed Plaintiff
to proceed on a due process claim based on the alleged punitive
conditions at the facility and on a discrimination claim under the
Americans with Disabilities Act. (7/13/09 text order.) On August 31,
2011, Judge Baker dismissed Plaintiff’s claims under the Americans with
Disabilities Act.
Thus, the only claim before the Court is the restrictive, punitive
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conditions claim, on which Defendants have moved for summary
judgment. After careful consideration of the parties’ submissions, the
Court concludes that the conditions of which Plaintiff complains do not
violate constitutional standards. Different or better ways might exist to
run the facility, but that is not the constitutional test. Accordingly,
summary judgment is mandated for Defendants.
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A
movant may demonstrate the absence of a material dispute through
specific cites to admissible evidence, or by showing that the nonmovant
“cannot produce admissible evidence to support the [material] fact.”
Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the nonmovant
may not simply rest on his or her allegations in the complaint, but
instead must point to admissible evidence in the record to show that a
genuine dispute exists. Id.; Harvey v. Town of Merrillville, 649 F.3d 526,
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529 (7th Cir. 2011). “In a § 1983 case, the plaintiff bears the burden of
proof on the constitutional deprivation that underlies the claim, and thus
must come forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d
877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the light
most favorable to the nonmovant, with material factual disputes resolved
in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A genuine dispute of material fact exists when a
reasonable juror could find for the nonmovant. Id.
FACTS
In 1999, after serving his criminal conviction, Plaintiff was detained
in the Rushville Treatment and Detention Center pursuant to a probable
cause hearing held under the Illinois Sexually Violent Persons Act, 725
ILCS 207/30. A detainee under this statute is transferred to a facility
approved by the Department of Human Services until a trial is held on
the petition to detain him. 725 ILCS 207/30(b). Additionally, the
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transfer is supposed to be to “an appropriate facility for an evaluation as
to whether the person is a sexually violent person.” 725 ILCS 207/30(c).
According to Plaintiff, he still has not received a trial on whether or
not he is a sexually violent person, though nearly 13 years have passed
since his initial probable cause hearing. Section 207/35 requires a trial
within 120 days of the probable cause hearing, unless Plaintiff consents
or good cause is shown. No explanation for the delay is in the record.
However, court orders entered in some of Plaintiff’s federal habeas
actions have concluded that the delay is largely attributable to Plaintiff.
McCabe v. Monohan, Appeal No. 07-2996 (7th Cir. 2007, 11/19/07 order
affirming dismissal of habeas petition)(“The reason McCabe has not yet
had a trial is his own dilatory tactics; he has provided no evidence that
the state bears any responsibility for the delay.”); McCabe v. Budz, 05CV-014 (S.D. Ill., Judge Stiehl, 12/20/05 order dismissing habeas
petition, p. 2, d/e 23)(“[A]s petitioner admits, the delay in adjudicating
the merits of that case is attributable to petitioner’s numerous attempts
to challenge his detention under the SVPCA.”). The question is
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irrelevant as far as this case goes: challenges to the fact of detention
belong in Plaintiff’s state commitment proceedings or in a federal habeas
action.
Plaintiff has been housed in DHS detention facilities for sexually
violent persons since 1999, first in Sheridan, then Joliet, and, since 2006,
in Rushville. No effort is made to separate those waiting for their trials
from those already committed. Instead, residents are assigned to housing
units according to whether they have consented to treatment. (Williams
Aff. ¶ 21, d/e 80-5.) A resident generally has access to a dayroom and his
own bedroom, which he typically shares with another resident. About
20-25 residents’ rooms border this day room. Meals are served in the day
room rather than in the dining room. Residents were initially permitted
access to a small outdoor patio attached to their unit, but those patios
have been closed for the purported reason of misuse by some residents.
(McAdory 4/12/11 memo, Def.’s Ex. H, d/e 80-3.)
Plaintiff contends that he is confined to the day room and his
bedroom for 21 to 23 hours every day. However, his own exhibit shows
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that he has daily access to yard and to the gym for a few hours every day.
He can also attend the library, visit the health care unit twice daily for
medication, leave the unit to pick up mail, attend commissary weekly,
and attend occasional special events off the unit. (Pl.’s Dep. pp. 35, 38,
48, 55; Pl.’s Resp., Description of Daily Activities, d/e 88-2, p. 43.) Also
offered off-unit are religious services and studies, art group, racquet
sports, team sports, band, and group therapy. (Pl.’s Resp., Ex. B., Daily
Activity Schedule, d/e 88-2, pp. 40-41.) Plaintiff has chosen not to
participate in therapy, which would present another opportunity for
movement and interaction. He refuses to participate in therapy because
doing so would require him to admit that he is sexually violent. (Pl.’s
Dep. pp. 12, 51-52.)
Since 2000, Plaintiff has been in “responsible A status,” which
means that he has no record of behavioral problems. (Pl.’s Dep. p. 25,
d/e 80-2.) Plaintiff has not had to wear the “black box” when
transported outside the facility since he was first brought to the facilities
in Sheridan and Joliet. (Pl.’s Dep. p. 106, d/e 80-3.) He has never been
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in segregation, also known as “close management status,” has never been
confined to his room for a “cool down,” and has never been removed
from his room by the tactical team. Id. at pp. 73, 75, 106, 131.
G.E.D. classes are offered at the facility, but no additional
educational classes are offered, and no useful vocational training is
offered. Defendant Blaesing avers that, “in the past, the Rushville facility
has offered a greater amount of educational and vocational opportunities;
however, both educational and vocational opportunities have been
diminished in recent years due to the diminishing number [of] staff
members available to provide instruction. Vocational programs such as
floor care and horticulture have existed in the past, but have been
dropped due to a lack of staff members to offer instruction in those
areas.” (Blaesing Aff. ¶ 6, d/e 80-6.) While incarcerated in the Illinois
Department of Corrections, Plaintiff earned “three associate’s degrees
and a bachelor’s of science from an unaccredited university.” (Pl.’s Dep.
p. 15, d/e 80-2 p. 15.) In June, 2009, Defendant Phillips denied
Plaintiff’s request to take a correspondence class for which a personal
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computer was needed. (Phillips’ 6/18/09 memo to Plaintiff, Pl.’s Ex. L,
d/e 88-5.) However, Phillips expressed in his response that Plaintiff
would be permitted to take a correspondence class which required no
computer. Id.
ANALYSIS
Plaintiff spends two sections of his argument assailing the legality
of his detention. (Pl.’s Resp., Arguments I & II, d/e 88-1, pp. 6-15.)
These claims are not proceeding in this case, pursuant to Judge Baker’s
order delineating the claims that are proceeding. In any event, claims
challenging the validity of detention cannot proceed in a 42 U.S.C. §
1983 action until that detention has been invalidated through proper
procedures. Challenges to the fact of Plaintiff’s detention must be made
in Plaintiff’s state court proceedings or in a federal habeas action.
DeWalt v. Carter, 224 F.3d 607, 614 (7th Cir. 2000)(challenges to fact
or duration of confinement must be pursued in habeas action, not in an
action under 42 U.S.C. § 1983); Varner v. Monohan, 460 F.3d 861 (7th
Cir. 2006)(example of habeas action by sexually violent person
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challenging constitutionality of commitment procedures); see also
Sweeney v. Bartow, 612 F.3d 571 (7th Cir. 2010)(Younger abstention
doctrine counseled against federal court interference in ongoing state
commitment proceedings under the Sexually Violent Persons Act); but
see Gregory-Bey v. Hanks, 332 F.3d 1036, 1038 (7th Cir. 2003)(habeas
corpus action allowed to proceed “due to the inordinate delay and
malfunctioning of the Indiana state court system, through no fault of the
defendant.”). Courts should not sua sponte convert a § 1983 claim into
a habeas claim, because doing so may cause unintended adverse
consequences. Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005)(“In most
cases, therefore, the district court should evaluate cases as the plaintiffs
label them.”).
Plaintiff’s next argument assails the restrictive, prison-like
environment of the facility. Plaintiff argues that he must be detained in
the “least restrictive environment.” He contends that he actually had
more freedom of movement in prison. He contends that his environment
should mimic that of a mental health patient involuntarily committed in
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a state mental health facility.
Plaintiff’s restrictive conditions claim must be analyzed in the same
manner as a claim by a pretrial detainee. Brown v. Budz, 398 F.3d 904,
910 (7th Cir. 2005)(status of person awaiting trial for civil commitment
under the Sexually Violent Persons Act was comparable to pretrial
detainee). Detainees like Plaintiff are entitled to humane conditions of
confinement. Deprivations, even for pretrial detainees, do not violate
constitutional standards unless those deprivations are sufficiently
serious—atypical and significant. See, e.g., Miller v. Dobier, 634 F.3d
412, 414-15 (7th Cir. 2011)(no constitutionally protected liberty interest
in avoiding the "black box" restraints); Sain v. Wood, 512 F.3d 886, 89394 (7th Cir. 2008)(sexually violent detainee is entitled to humane
conditions—“‘adequate food, clothing, shelter, and medical care”);
Thielman v. Leean, 282 F.3d 478, 483-84 (7th Cir. 2002)(addition of
waist belt and leg chains to handcuffs during transport of detained person
did not implicate Constitution.)
Also relevant to the analysis of Plaintiff’s restrictive environment
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claim is Youngberg v. Romeo, 457 U.S. 307, 315 (1982), a Supreme
Court case which addressed the conditions of confinement of an
involuntarily committed mentally retarded person. The Youngberg Court
noted that “[p]ersons who have been involuntarily committed are
entitled to more considerate treatment and conditions of confinement
than criminals whose conditions of confinement are designed to punish.”
457 U.S. at 322. The Supreme Court recognized the committed person’s
constitutional interests in “safety and freedom from undue restraint.”
457 U.S. at 319. However, the Court also recognized that restrictions on
liberty were subject to the legitimate concerns of the facility. 457 U.S. at
320; Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003)(persons
confined as sexually dangerous persons were like pretrial detainees and
could be “subjected to conditions that advance goals . . . such as
preventing escape and assuring the safety of others, even though they
may not be punished.”).
Youngberg also concluded that involuntarily committed individuals
were entitled to the exercise of professional judgment by the “appropriate
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professional.” 457 U.S. at 321, 324. The Seventh Circuit Court of
Appeals has explained:
Detainees are entitled to "the exercise of professional
judgment as to the needs of residents". . . . ; if professional
judgment leads to the conclusion that restraints are necessary
for the well-being of the detainee (or others), then the
Constitution permits those devices. . . . .Seling v. Young, 531
U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001),
generalizes the proposition this way: "due process requires
that the conditions and duration of confinement ... bear some
reasonable relation to the purpose for which persons are
committed."
West v. Schwebke, 333 F.3d 745 (7th Cir. 2003). However, a “justified
security policy is not . . . properly viewed as a treatment program that
must be supported by an exercise of professional judgment[,]” by health
professionals even if the policy “limits opportunities for treatment.” Lane
v. Williams, 689 F.3d 879, 883 (7th Cir. 2012). The Seventh Circuit in
Lane seemed to interpret Youngberg’s professional judgment rule as
limited to claims regarding a plaintiff’s treatment, with the “appropriate
professional” being a health professional. 689 F.3d at 883.
Applying these standards, the Court must conclude that the
restrictions challenged by Plaintiff are justified by legitimate security
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concerns. The professional judgment of clinical staff was not
constitutionally required in determining the limits of residents’ freedom
of movement within the facility and other security decisions like
restraints on writs, use of the tactical team, and monitoring by guards.
Lane, 689 F.3d at 883.
Plaintiff’s primary complaint is that he is confined to his unit for
much of the day, which consists of a dayroom and bedrooms housing 2025 residents. He wants to move more freely about the facility, within
reason, and to interact with more residents. Given his good behavioral
record, perhaps he should be allowed to do so. However, the
Constitution mandates the minimum standard for a detainee’s conditions
of confinement, not the ideal conditions. Plaintiff’s movement is not
restricted below constitutional standards: he may attend yard and gym
daily, go to the library and commissary, attend therapy, and attend
programs and events off the unit. Plaintiff has never been subjected to
the black box policy, tactical team, segregation, or other disciplinary
measures at Rushville, which, in any event, are not per se
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unconstitutional. See, e.g., Miller, 634 F.3d at 414-15 (sexually violent
detainee has no constitutionally protected liberty interest in avoiding the
"black box" restraints or in avoiding close status, which involved earlier
curfew time, reduced family visits, and denial of yard, library, and
exercise room).
Recently, the Seventh Circuit in Lane v. Williams, 689 F.3d 879
(7th Cir. 2012), addressed these restrictions, though in the context of the
First Amendment right to association. The plaintiffs in Lane, housed in
the Rushville Treatment and Detention Center like Plaintiff, challenged
the limitations on their interactions with residents on other pods and
units. The plaintiffs’ expert opined that those limitations were countertherapeutic to rehabilitation, preventing the plaintiffs from developing
necessary interactive skills. The plaintiffs argued that the clinical staff,
not just the security staff, had to exercise professional judgment in setting
the limitations because those limitations impacted treatment and
rehabilitation.
The Seventh Circuit in Lane held that the limits on interaction with
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other residents did not violate the residents’ associational rights or their
rights to have professional judgment exercised by clinical professionals in
treatment decisions, reasoning that Youngberg did “not hold that every
aspect of civil commitment must be evaluated as a treatment program.”
689 F.3d at 883. The Lane Court further stated that “the plaintiffs in
this case wisely do not argue that the limits on interaction among some
of the units is intended to inflict punishment, . . . , or is not a legitimate
security measure . . . , and understand that they can prevail only if the
contested restrictions on association are treatment decisions.” Id. at 882
(emphasis in original).
As in Lane, Plaintiff makes no real challenge to the proffered
security reasons for limiting movement, and no evidence suggests that the
limitations “so interfere with treatment that the conditions . . . no longer
‘bear some reasonable relation to the purpose for which persons are
committed.’” Id. at 883. His argument that the therapists are required to
add their professional judgment to the decision to limit movement among
pods and units is the same argument considered by Lane.
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Plaintiff cites a Northern Illinois District case, Hargett v. Adams, to
support his argument, but Hargett cuts against him. In Hargett, many of
the same conditions were challenged by sexually violent detainees held at
the Joliet Treatment and Detention Center. In Hargett, the plaintiffs’
expert testified that the prison-like environment was counter-therapeutic.
The Court acknowledged this testimony but concluded:
Defendants' decisions . . . fall under the purview of reasonable
professional judgment in the administration of a hybrid
detention and treatment facility. . . . [T]he restrictions of
movement, the room and personal searches, use of the black
box, use of close management status, and use of intercoms,
are not substantial departures from accepted professional
judgment and standards, and therefore are constitutionally
permissible. Specifically, . . . . there are legitimate security
and institutional concerns underlying these policies that
indicate that professional judgment is being properly
exercised.
Hargett v. Adams, 2005 WL 399300 * 16 (N.D. Ill., Judge Leinenweber).
The Hargett opinion, entered years before Lane, applied the professional
judgment standard to security and administrative decisions, with the
appropriate professionals being the administrators. In light of Lane,
whether the Seventh Circuit would agree that the professional judgment
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rule applied to the security decisions in Hargett is unclear. However, the
debate makes no practical difference in this case. Both Lane and Hargett
hold that restrictions supported by legitimate security concerns are
constitutional, even if those restrictions indirectly impact treatment. In
short, the Court does not believe that Hargett helps Plaintiff’s argument.
Plaintiff also points to 725 ILCS 207/40(b)(2), which states that
“[t]he Department [of Human Services] shall arrange for control, care
and treatment of the person in the least restrictive manner consistent
with the requirements of the person and in accordance with the court’s
commitment order.” Plaintiff argues that the conditions at Rushville are
not the “least restrictive” conditions consistent with safety concerns.
Assuming, arguendo, that this statute creates a private right
enforceable in state court, the right would not be enforceable in federal
court. Guarjardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir.
2010)(“[A] violation of state law is not a ground for a federal civil rights
suit.”); Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003)(The
federal constitution does not “permit a federal court to enforce state laws
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directly” or require Illinois to keep its statutory promises). Nor does this
statute create a constitutionally protected liberty interest in the “least
restrictive manner” of confinement. See, e.g., Thielman, 282 F.3d at 481
(sexually violent detainee had no liberty interest in avoiding restraints,
even though a Wisconsin statute stated that these detainees had a “‘right
to the least restrictive conditions necessary.’”).
Plaintiff also argues that the equal protection clause entitles him to
be housed in the same conditions as a patient under the Mental Health
and Disabilities Code. He challenges the constitutionality of 725 ILCS
207/50(b), which excludes “secure facilities” such as Rushville from the
Mental Health and Disabilities Code.
However, Plaintiff is not similarly situated to persons confined for
treatment in other state mental health facilities by the simple fact that he
is confined in a different facility, a “secure facility” run by the
Department of Human Services pursuant to the Illinois Sexually Violent
Persons Act. Additionally, the alleged differential treatment is rationally
related to the nature of Plaintiff’s disorder. A state judge has found
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probable cause that Plaintiff is a sexually violent person, "convicted of a
sexually violent offense, . . .[and] dangerous because [he] . . . suffers from
a mental disorder that makes it substantially probable that . . . he will
engage in acts of sexual violence." 725 ILCS 207/5(f); see Thielman, 282
F.3d at 483 (7th Cir. 2002)(“[I]t is not unreasonable for the State to
believe that a person with a mental disorder of a sexual nature is
qualitatively more dangerous than another mental patient who
nonetheless threatens danger to himself or others.”); see also Varner v.
Monohan, 460 F.3d 861, 865 (7th Cir. 2006)(no equal protection
violation for different commitment procedures for sexually dangerous
persons versus sexually violent persons: “the rationality of the distinction
is evident. . . . The difference between those with a criminal record and
those without is vital.”); In re Detention of Samuelson, 189 Ill.2d 548
(2000)(differences between SVP Act and Mental Health and
Developmental Disabilities Code do not violate equal protection).
Plaintiff also presses a claim under the Rehabilitation Act, arguing
that the absence of vocational and educational opportunities is
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discriminatory. He contends that Rushville must offer educational
programs beyond the G.E.D. level. He appears to argue that Rushville
must offer the same educational and vocational opportunities offered at
any other type of state facility, such as the IDOC and mental health
institutions. He seeks an order that Rushville be required to provide the
same services and programs he alleges are currently offered by the Illinois
State Board of Education, Division of Career and Technical Education.
(Pl.’s Amended Complaint, ¶ 149, d/e 88-2.) He objects to Defendant
Phillips’ denial of Plaintiff’s request to enroll in a home study course for
which a personal computer was needed to conduct research.
Judge Baker has previously ruled that Plaintiff has no claim under
either the Americans with Disabilities Act or the Rehabilitation Act.
(8/31/11 Court Order, d/e 66, pp. 2-3, referring to both Acts.) These
Acts are analyzed identically in the context of this suit. Jaros v. IDOC,
684 F.3d 667, 671-72 (7th Cir. 2012). This Court agrees with Judge
Baker’s conclusion. Plaintiff argues that Rushville must provide the same
educational offerings of other state agencies, but the Rehabilitation Act
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does not require all state agencies to provide the same services. The focus
here is on the programs and activities offered by the Rushville Treatment
and Detention Center, not the programs and activities offered by all state
agencies. 29 U.S.C. § 794(b)(1)(A)(defining “program or activity” as
the operations of a State “department, agency, special purpose district, or
other instrumentality of a State or local government”). Plaintiff is not
being discriminated against because of his mental disorder: All the
Rushville residents are offered the same educational and vocational
opportunities.
IT IS THEREFORE ORDERED:
1) Defendants’ motion for summary judgment is granted (d/e 80).
2) The clerk of the court is directed to enter judgment in favor of
Defendants and against Plaintiff. All pending motions are denied as
moot, and this case is terminated, with the parties to bear their own
costs. All deadlines and settings on the Court’s calendar are vacated.
3) If Plaintiff wishes to appeal this judgment, he must file a notice
of appeal with this Court within 30 days of the entry of judgment. Fed.
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R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis
should identify the issues Plaintiff will present on appeal. See Fed. R.
App. P. 24(a)(1)(c).
ENTERED: September 26, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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