Lewis et al v. Phillips et al

Filing 271

OPINION Entered by Judge Sue E. Myerscough on 06/30/2017. SEE WRITTEN OPINION. (1) Defendant's motion for summary judgment is denied (d/e 263 ). (2) This case is referred to the Magistrate Judge for a settlement conference. (3) The clerk is directed to inform the Magistrate Judge of the referral of this case for a settlement conference. (DM, ilcd)

E-FILED

Friday, 30 June, 2017 12:51:46 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL LEWIS, et al.,
Plaintiffs,
v.
LARRY PHILLIPS, et al.,
Defendants.

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No. 10-CV-3163

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This case began as a multi-plaintiff challenge to the
restrictions on certain video games, movies, and video gaming
consoles at the Rushville Treatment and Detention Center, a facility
housing individuals pursuant to the Illinois Sexually Violent
Persons Act. A retaliation claim also proceeded.
This Court granted summary judgment to Defendants on all
claims. The Seventh Circuit reversed as to the claim challenging
the restrictions on certain movies and video games. Brown v.
Phillips, 801 F.3d 849 (7th Cir. 2015). Only one Plaintiff remains,
Eugene Brown, with a claim for injunctive relief against one
Defendant, Gregg Scott, the facility Director.
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Defendant Scott renews his motion for summary judgment,
attaching the affidavits of Shan Jumper, PH.D., the Clinical
Director at Rushville, and James Clayton, the Security Director at
Rushville.
The problem with Defendants’ summary judgment motion is
that Defendants do not grapple with the Seventh Circuit’s concerns
expressed in Brown. Brown can be read as requiring objective data
to support Defendants’ conclusion that the prohibited movies and
games might actually further security and rehabilitation goals.
Common sense is not enough. Brown, 801 F.3d at 854 (“some data
is needed to connect the goal of reducing the recidivism of sex
offenders with a ban on their possessing legal adult pornography.”);
see also Payton v. Cannon, 806 F.3d 1109 (7th Cir. 2015)(affirming
prison’s ban on sexually explicit materials primarily because
plaintiff offered no evidence to counter, but noting that scientific
analysis and data are the preferable basis to inform prison policy,
not warden’s impressions).
Dr. Jumper cites his consultations with unidentified
professionals and his education and experience, but his
conclusions still seem largely based on unsupported assumptions.
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He also cites various studies on pornography and sexual
aggression, which are not attached to the motion. He does not
adequately explain the basis for his conclusion that these studies
support restricting these particular movies and video games. For
example, the relevance of a study on violent pornography to the
prohibition on a game with “partial nudity, sexual themes,
simulated gambling” is not apparent. (“Dead or Alive Extreme
Beach Volleyball,” d/e 165-2, p. 15.) How do the studies on
pornography and aggression support the prohibition of the movie
“An Officer and a Gentleman” or “Horrible Bosses”? (d/e 264-3, p.
12.)
The restricted list also states that “staff has the right to refuse
any movie that appears questionable to staff.” (d/e 264-3, p. 8.)
Who is authorized to exercise that discretion and how? Plaintiff
asserts that security guards who are not clinical therapists often
decide which movies are put on the restricted list. And, Plaintiff
makes a good point that “sexually explicit” is not defined.
Dr. Jumper points out that a conditionally released resident
must abide by certain rules, including a rule against possessing
“material that is pornographic, sexually oriented, or sexually
Page 3 of 5

stimulating, or that depicts or alludes to adult sexual activity or
depicts minors under the age of 18, . . . .” (Jumper Aff. ¶ 27.) He
concludes that the restricted movie and video game list helps
prepare residents for their possible conditional release. However,
he does not explain why restricted access to some “sexually explicit”
material now would make it easier to comply with arguably much
broader restrictions on conditional release. Additionally, the
conditional release rules may themselves be without logical basis.
Brown, 801 F.3d at 854 (citing United States v. Taylor, 796 F.3d
788, 792–93 (7th Cir.2015) (vacating supervised release condition
prohibiting legal adult pornography); United States v. Siegel, 753
F.3d 705, 709 (7th Cir.2014)(allowing rapist to view legal
pornography might decrease recidivism)).
The concerns by Security Director Clayton about trading and
trafficking “sexually explicit materials” are also too conclusory.
Some of the movies and games that are allowed also likely contain
sexual content, and trading and trafficking concerns apply to all
property a resident owns.
In the end, Dr. Jumper’s conclusions still appear based on his
experience, common sense, and what other states and facilities are
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doing, which is not enough under Brown. Without more, arguably
summary judgment should be granted to Plaintiff under Brown.
The Court is not saying that prohibiting some of the games and
movies might have scientific support, such as those portraying
sexual violence such as rape. But the affidavits are still too
conclusory to draw even that conclusion.
At this point, the case will be referred for settlement. If
settlement is unsuccessful, a conference will be set to discuss how
the case will proceed.
IT IS ORDERED:
(1) Defendant’s motion for summary judgment is denied (d/e
263).
(2) This case is referred to the Magistrate Judge for a
settlement conference.
(3) The clerk is directed to inform the Magistrate Judge of the
referral of this case for a settlement conference.
ENTER: June 30, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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