Lewis et al v. Phillips et al

Filing 86

OPINION entered by Judge Sue E. Myerscough on 12/27/2011. Plaintiffs' motion to compel responses by Defendants Wilczynski, Oberhausen, Olt and Groot is granted in part and denied in part (d/e 71). By January 31, 2012, these Defendants are di rected to supplement their responses to interrogatories 4 and 14, in accordance with this Opinion. Plaintiffs' motion to compel information from Defendant Jumper is denied (d/e 82). Entered by Judge Sue E. Myerscough on 12/27/2011. (MAS, ilcd)

E-FILED

Tuesday, 27 December, 2011 11:29:34 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL LEWIS et al.,

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Plaintiffs,
v.
LARRY PHILLIPS et al.,
Defendants.

10-CV-3163

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
There are 17 plaintiffs in this case, all detained in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. They pursue First Amendment claims challenging a
blanket ban on R-rated movies and M-rated video games. This case was
stayed while the same claim in another case was decided. Smego v.
Payne, 09-CV-3244 (C.D. Ill., Judge Baker). In that case, Judge Baker
upheld the constitutionality of the blanket ban. Judge Baker then lifted
the stay in this case, noting that:

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While the plaintiffs [in this case] were not parties to [Smego
v. Payne], the same legal principles will apply in this case. In
Smego the court acknowledged that a blanket ban did exist,
but upheld that ban based on the defendants’ legitimate
interests in running the facility and rehabilitating the
residents. The same conclusion appears to be inevitable in
this case. The plaintiffs, however, will be given an
opportunity at discovery, since they were not parties to the
prior suit.
A retaliation claim is also proceeding in this case, per Judge Baker’s order
of June 17, 2011. Discovery is set to close in this case on January 31,
2012.
Before the Court are Plaintiffs’ two motions to compel. Federal
Rule of Civil Procedure 26(b)(1) provides that the "[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any
party's claim or defense." Relevant information need not be admissible at
trial if the discovery appears to be reasonably calculated to lead to the
discovery of admissible evidence.
Some of Plaintiffs’ requests probe the reasoning behind the movie
and game bans. Defendants contend that Judge Baker’s order in Smego
establishes, as a matter of law, that the blanket ban is constitutional.

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Defendants thus contend that any discovery requests about the ban are
irrelevant.
Judge Baker’s concerns about res judicata do not apply to his
conclusion that the blanket ban is reasonably related to legitimate
interests in “rehabilitation, efficiency, and limiting costs.” (Smego, 093244, 6/9/11 order, p. 4). That was a conclusion of law, with which this
Court agrees. That conclusion need not be revisited each time a plaintiff
challenges the blanket ban: Defendants’ proffered explanation for the ban
is not going to change.
For example, the Supreme Court in Bell v. Wolfish, 441 U.S. 520
(1979), addressed a pretrial detainees’ challenge to a rule limiting the
purchase of hardcover books to books mailed directly from publishers,
book clubs, or book stores. The Supreme Court concluded, on a fully
developed factual record, that the rule was “a rational response by prison
officials to an obvious security problem.” 441 U.S. at 551. That is a
holding of law, which later plaintiffs cannot relitigate, even though they
were not parties to the Bell lawsuit. See Lindell v. Frank, 377 F.3d 655,

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659 (7th Cir. 2004)(“There is no question that ‘publishers only’ rules that
restrict prisoners from receiving hardcover books from any
noncommercial sources are reasonably related to a prison’s interest in
preventing contraband from being smuggled into the prison.”). Likewise,
Judge Baker’s conclusion that Defendants’ ban on R-rated movies and
MA-rated games is rationally related to legitimate government interests is
a conclusion of law.
However, later litigants can always try to distinguish their facts
from a prior case’s holding by demonstrating that their facts or
circumstances are different. See Jackson v. Elrod, 655 F.Supp. 1130,
1137-38 (N.D. Ill. 1987)(pretrial detainee stated claim where rule against
books was much broader than publishers-only rule in Bell). Additionally,
in appropriate circumstances plaintiffs in later cases may argue for
reconsideration of a court’s prior holdings.
Distinguishing the facts of this case from Smego seems a quixotic
endeavor since the exact same blanket ban appears to be at issue here.
However, Plaintiffs should be given an opportunity to address this issue

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and argue other legal theories challenging the ban that were not
addressed by Judge Baker. Judge Baker already promised them this
opportunity when he denied their motion to reconsider. (7/11/11 text
order: “The plaintiffs may make all their legal arguments about the
constitutionality of the ban at the summary judgment stage, including
those made in the motion for reconsideration.”).
Additionally, some of Plaintiffs’ discovery requests seem aimed not
at the blanket ban, but instead at the policy that has apparently replaced
the blanket ban: a list of banned movies and games. Plaintiffs may be
trying shifting their focus from the blanket ban to the banned list, though
they have not moved to file a supplemental or amended complaint.
However, the “banned list” issue seems closely enough related to the
blanket ban that both should be addressed in this case. In short, the
Court cannot rule definitively at this point that Smego renders irrelevant
all of Plaintiffs’ discovery questions about the movie and game
restrictions. With that in mind, the Court will address Plaintiffs’
motions to compel.

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I.

Motion to Compel Responses from Defendants Wilczynski,
Oberhausen, Olt, and Groot.

A. Interrogatory 2:1 Identify ethics organizations governing your
line of work and the dates during which you were in good standing with
those organizations.
Plaintiffs contend that unethical conduct is “at the heart of this
case,” but the Court agrees with Defendants that this request is irrelevant
and not reasonably calculated to lead to relevant evidence. In any event,
Defendants have identified that their profession is regulated by the
Illinois Department of Professional Regulation.
B. Interrogatory 3: Justify your reliance on internet movie and
game reviews by teens and pre-teens to determine whether to allow
certain movies and games.
This interrogatory is apparently based on a staff response to a
resident request asking what sources were consulted to determine a
game’s sexual content. The staff response identified
commonsensemedia.org (which includes teen reviews),
whattheyplay.com, and “you tube.”
Defendants object on grounds of vagueness and irrelevancy.
The discovery requests are paraphrased.

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Defendants further contend that they collect information from many
different sources to make their determinations. The Court finds this
answer responsive. Plaintiffs’ interrogatory is essentially an argument
that Defendants are not appropriately exercising their professional
judgment by relying on teen internet reviews. Interrogatories are not the
place to argue the case.
C. Interrogatory 4: Identify the sources upon which you rely to
create the “banned list.”
Defendants adopted a prior response that “the Executive
Management Team and Leaders collect information from many different
places and in connection with their collective education, training and
experience of the group make various informed decisions.” Defendants
also object on grounds of vagueness and irrelevancy.
As discussed above, Plaintiffs seem to be changing their focus to the
“banned list,” which has replaced the blanket ban. The Court believes
the banned list should be addressed by Defendants at summary
judgment. Accordingly, Defendants are directed to list, to the extent
possible, the external sources on which they rely to determine whether a
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movie or game will be placed on the “banned” list. Defendants appear to
have already identified three of those sources as discussed above.
D. Interrogatory 5: Identify the “personal property contracts” used
for residents possessing DVD players and gaming systems.
The Court agrees with Defendants that this question is irrelevant.
Plaintiff do not adequately explain what the personal property contracts
have to do with the restrictions on movies and games.
E. Interrogatory 6: Identify the counseling given to residents
regarding harmful stimuli in R-rated movies and MA-rated games.
Identify the individual testing and evaluation that occurs in determining
if exposure to this stimuli is contraindicated for a particular resident.
The Court does not see the relevance of instructions on harmful
stimuli and agrees with Defendants that Judge Baker has already
determined in Smego that Defendants are not required to conduct an
individual evaluation of a resident before implementing restrictions on
games and videos. Judge Baker reasoned that such a requirement would
be too burdensome and impractical. This Court agrees with Judge
Baker’s conclusions. In any event, the answer to the interrogatory is
obvious: Defendants do not conduct individual assessments of residents

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when instituting facility-wide restrictions on movies and games.
E. Interrogatory 7: How can you justify restricting these movies
and games as an exercise of your professional judgment when no
respected research or publications support those restrictions?
This interrogatory is argumentative. Discovery is not the time for
arguing one’s case.
F. Interrogatory 13: What “personal property contracts” are used
for gaming and DVD players? Why do those contracts fail to mention
the purported harmful stimuli in games and movies? How are constantly
changing rules at the facility therapeutic for the residents?
Again, Plaintiffs are arguing their case. Additionally, as discussed
above, the personal property contracts are not relevant to this case, nor
would they lead to relevant evidence.
G: Interrogatory 14: It is not clear what this interrogatory asks.
Plaintiffs appear to be asking why residents who consent to treatment are
allowed to view movies and games on the restricted list, given that the
media on the restricted list has been deemed counter-therapeutic.
Defendants’ response is also unclear. They contend that “the

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subject limitation as described above was not solely approved for just
group members.” The Court does not understand what this response
means. Accordingly, Defendants will be directed to supplement this
response.
II. Motion to Compel “Full Disclosure” from Defendant Jumper
In Smego, Defendant Jumper submitted an affidavit explaining the
reason for the blanket ban. Judge Baker relied heavily on this affidavit to
grant Defendants summary judgment. Jumper averred in that affidavit
that he had researched other states’ policies on media restrictions for
sexually violent persons, and that many states have more restrictive
policies than the restrictions imposed at Rushville Treatment and
Detention Facility.
Plaintiffs in this case seek copies of the research Jumper conducted
to arrive at this conclusion, including the name of persons he contacted
and the information he received or discovered. However, Judge Baker’s
order specifically renounced any reliance on Jumper’s averred research
because Plaintiffs in that case had not had an opportunity to probe the

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reliability of Jumper’s research. Judge Baker concluded that, even
without considering other states’ approaches, Defendant Jumper had
demonstrated a rational connection between the ban and legitimate
interests in rehabilitation and the efficient use of limited staff resources.
The information is therefore not relevant, nor is it likely to lead to
relevant information. Accordingly, this motion to compel will be denied.
IT IS THEREFORE ORDERED:
1) Plaintiffs’ motion to compel responses by Defendants
Wilczynski, Oberhausen, Olt, and Groot is granted in part and denied in
part (d/e 71). By January 31, 2012, these Defendants are directed to
supplement their responses to interrogatories 4 and 14, in accordance
with this opinion.
2) Plaintiffs’ motion to compel information from Defendant Jumper
is denied (d/e 82).
3) In their motion for summary judgment, Defendants are directed
to address the banned list of movies and games, as well as the prior
blanket ban.

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ENTERED:

December 27, 2011

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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