Webb v. Phillips et al
Filing
66
OPINION entered by Judge Sue E. Myerscough on 10/16/2012. The Defendants' supplemental motion for summary judgment is granted, d/e 60 . All pending motions are denied as moot, and this case is terminated, with the parties to bear their own co sts. Judgment is to be entered in favor of the Defendants and against the Plaintiff. If the 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. R. App. P. 4(a)(4). (MAS, ilcd)
E-FILED
Tuesday, 16 October, 2012 04:13:24 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD G. WEBB,
Plaintiff,
v.
LARRY PHILLIPS, SHAN JUMPER,
JULIE OBERHAUSEN, EUGENE
McADORY, AIMEE WILCZYNSKI,
ROBERT OLT, GUY GROOT, and
JENNIFER KING,
Defendants.
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10-CV-3179
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se, is detained in the Rushville Treatment
and Detention Center pursuant to the Illinois Sexually Violent Persons
Act. He seeks visitation with his minor grandchildren, nieces, and
nephews.
On December 30, 2011, the Court dismissed Defendants Phillips
and McAdory in their individual capacities, but they remain as
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Defendants in their official capacities for the purpose of injunctive relief.
The Court also denied the motion for summary judgment by the
remaining Defendants, concluding that Defendant Groot’s affidavit was
too conclusory to determine whether the denial of visits with minors was
rationally related to a legitimate objective such as safety or rehabilitation.
The Court ordered Defendants to file a supplemental motion for
summary judgment which is now before the Court.
After careful consideration of the parties’ submissions, the Court
concludes that Defendants have demonstrated that the restriction is
rationally related to legitimate concerns of safety and rehabilitation.
Defendants have further demonstrated that the decision was the product
of the exercise of professional judgment, and that the factors in Turner v.
Safley, 482 U.S. 78, 89 (1987) weigh in their favor. Accordingly, the
supplemental motion for summary judgment must be granted.
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
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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,
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
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reasonable juror could find for the nonmovant. Id.
FACTS
Plaintiff was detained under the Illinois Sexually Violent Persons
Act in 1999, after a state court judge found probable cause that Plaintiff
will be adjudicated a sexually violent person under Illinois law. He is
currently detained in the Rushville Treatment and Detention Center.
Nearly thirteen years after the probable cause finding, Plaintiff still has
not had a trial on whether he actually is a sexually violent person, though
725 ILCS 207/30(c) requires an adjudication within 120 days of the
probable cause finding, absent Plaintiff’s consent or good cause. The
reason for the delay is not in the record. Plaintiff does not challenge the
delay here, and, in any event, such a challenge would belong in Plaintiff’s
detention hearings, appeals, or in a federal habeas action.
What Plaintiff does challenge is that he is not permitted visitation
with any of his minor relatives—his grandchildren, nieces, and nephews.
This decision was made by Defendant Groot, who was the leader of
Plaintiff’s clinical “treatment team” at the facility, and by Stephen
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Hansen, a licensed professional counselor who was Plaintiff’s primary
therapist in 2009. Groot and Hansen aver that other members of the
team also participated in the decision, but no affidavits were presented by
the other team members, and their signatures are not on the denial.
In 2006, Plaintiff was denied a request to visit his minor
grandchild, and in 2009, Plaintiff was denied a request to visit two minor
nephews and a minor niece. Defendants focus on the 2009 request, and
Plaintiff does not to appear to have made any requests after that date.
However, a fair reading of the record suggests that any future requests
would be futile because Plaintiff’s restriction on visits with minors
remains in place.
According to Stephen Hansen, Plaintiff’s former primary therapist,
Plaintiff was denied visits with his minor relatives because of Plaintiff’s
criminal and sexual history, Plaintiff’s refusal to consent to sex offender
treatment, and Plaintiff’s refusal to take responsibility for his actions.
Mr. Hansen avers that, though Plaintiff’s minor nephews may not fit
Plaintiff’s “victim profile,” the nephews might still be a target:
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[I]t is not uncommon for a person with the mental disorder
suffered by the Plaintiff to abuse irrespective of sex or age. In
fact, Mr. Webb’s diagnosis is “Paraphilia Not Otherwise
Specified, Sexually Attracted to Non-Consenting Females,
Nonexclusive type.” Nonexclusive type refers to the fact that
Mr. Webb is not solely attracted to non-consent females. Mr.
Webb also considers himself a bi-sexual.
(Hansen Aff. ¶ 15, d/e 60-1.) Mr. Hansen further avers that Plaintiff
“refused to complete the Penile Plethysmograph evaluation (PPG) which
would have provided insight as to what triggers his sexual arousal.
Without this information there was a significant risk that Plaintiff could
sexually abuse children irrespective of age and sex if given the
opportunity.” Id., ¶ 17. Mr. Hansen also noted the state court’s finding
of probable cause that Plaintiff is a sexually violent person weighed in the
decision. Id., ¶ 9.
Mr. Hansen avers that Plaintiff has a:
long history of sexual assaults. Mr. Webb’s offense history
dates back to 1984 and includes numerous charges and
convictions for sexual offenses in six states against adolescent
females. The records indicate threats, intimidation, beating
and aggressive and sexual use of foreign objects.
(Hansen Aff. ¶ 8, d/e 60-1.) In Mr. Hansen’s opinion, Plaintiff’s “version
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of his crimes is clearly contradicted by the criminal history provided to
his treatment team.” Id. at ¶ 12.
Attached to the supplemental summary judgment motion is the
psychological examination conducted in relation to Plaintiff’s detention
proceedings. The criminal history part of that report reveals charges and
arrests for attempted sexual assaults of young women, aggravated
criminal sexual abuse of a 16 year old girl, sexual intercourse with 14 year
old girls, indecent liberties with a minor, rape and sodomy of a 14 year
old girl, kidnapping and forcible rape of a female of unidentified age, rape
of a male of unidentified age, and rape of a female adult. (6/25/10
Sexually Violent Persons Commitment Act Psychological Examination of
Richard Webb, pp. 5-24, d/e 60-3.) The report contains disturbing
details of the abuse allegations by some of Plaintiff’s victims. The report
characterized Plaintiff as indifferent and in denial. According to the
report, Plaintiff:
maintained that charges were dismissed, even when presented
with the relevant court documents. He reportedly stated he
regretted the “whole damn rap sheet” when asked if he felt
regret for any of his offenses. He “demonstrated an absence
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of empathy for the 15 year-old victim of his current offense,
as he ‘couldn’t tell’ what effect his offense had on her, and
stated, ‘that individual was in an environment she shouldn’t
have been in.’”
Id. at p. 7.
ANALYSIS
The Court set forth the applicable legal standard in the prior order
denying summary judgment:
Outside of the prison arena, the Supreme Court has
discussed “a right to maintain certain familial relationships,
including association among members of an immediate family
and association between grandchildren and grandparents.”
Overton v. Bazzetta, 539 U.S. 126, 131 (2003); Arsberry v.
Illinois, 244 F.3d 558, 565 (7th Cir. 2001)("It is conceivable
(no stronger statement is possible in the current state of the
case law) that the constitutional concept of liberty may
encompass a limited right to make or receive prison visits
involving family members.") Mayo v. Lane, 867 F.2d 374, 375
(7th Cir. 1989)(claim that “natural liberty includes a right of
association with members of her family, such as
grandnephew” in prison is “not a frivolous argument.”).
However, if such a right does exist in the context of a
detention center for sexually violent persons, the right is
subject to the legitimate concerns of the facility
administrators and the professional deference afforded them.
Id. at 132. For example, the Supreme Court addressed prison
visitation restrictions in Overton v. Bazzetta, 539 U.S. 126,
131 (2003). The visitation restrictions in Overton included a
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total ban on visits from minor nieces and nephews. The
Supreme Court side-stepped the question of whether
prisoners had a constitutional interest in those visits,
concluding that, in any event, the ban was rationally related
to a legitimate interest in reducing the number of child
visitors to ameliorate staffing and resource shortages. 539
U.S. at 133. The Supreme Court also reasoned that “[w]e
must accord substantial deference to the professional
judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections
system and for determining the most appropriate means to
accomplish them.” Id. at 132.
Like Overton, the inquiry in this case ends if the
therapists’ decision is rationally related to a legitimate interest
in Plaintiff’s rehabilitation. . . .
(Court’s 12/30/11 Order, d/e 51.) The factors set forth in Turner v.
Safley, 482 U.S. 78 (1987) guide the analysis of whether the restriction
is rationally related to a legitimate government interest. Those factors
are: 1) the logical connection between the restriction and the
government interest; (2) the existence of alternative methods for
exercising the right at stake; (3) the negative impact that accommodating
the right would have on the facility; and, 4) the existence of “ready
alternatives” to the restriction. See Overton, 539 U.S. at 132 (citing
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Turner, 482 U.S. at 89-91).
After careful consideration of the parties’ submissions, the Court
concludes that Defendants have demonstrated that Plaintiff’s ban on
visiting his minor nieces, nephews, and grandchildren is rationally related
to legitimate interests in Plaintiff’s rehabilitation and the safety of the
minors. This conclusion is based primarily on the affidavit of Mr.
Hansen and the documents attached to his affidavit. Mr. Hansen avers
that visits with minors would be countertherapeutic for Plaintiff and
potentially dangerous for the minors in light of Plaintiff’s criminal and
sexual history, Plaintiff’s refusal to accept responsibility for that history,
Plaintiff’s inability to empathize with his victims, Plaintiff’s decision not
to participate in sex offender therapy, and Plaintiff’s refusal to take a
PPG to enable a more accurate and current evaluation. Mr. Hansen also
relied on the report prepared for Plaintiff’s probable cause hearing which
found, to a reasonable degree of certainty, that Plaintiff is substantially
probable to commit sexually violent acts.
While Plaintiff debates the accuracy of Mr. Hansen’s conclusions,
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those conclusions are exactly the kinds of decisions committed to the
professional judgment of Plaintiff’s therapists, not to a court or a jury.
Youngberg v. Romeo, 457 U.S. 307, 321 (1982)(persons involuntarily
committed entitled to exercise of professional judgment); see Stojanovic
v. Humphreys, 309 Fed.Appx. 48 (7th Cir. 2009)(unpublished)(upholding
prison’s ban on sexual offender’s visitation with minor daughter and
niece where sex offender was not participating in treatment and offender
admitted to raping two children); Wirsching v. Colorado, 360 F.3d 1191,
(10th Cir. 2004)(refusal to allow sex offender to visit with daughter
upheld where offender’s refusal to participate in sex offender treatment
rendered proper evaluation impossible, according to defendants). Courts
must defer to the exercise of professional judgment, disturbing it only if
professional judgment has not been exercised. Youngberg, 457 U.S. at
323 (decisions by professionals about mental health facility’s operations
afforded deference and violate the Constitution only if professional
judgment not exercised). Plaintiff has no evidence that Mr. Hansen
failed to exercise professional judgment, or that Mr. Hansen’s judgment
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was a “substantial departure from accepted professional judgment.”
Estate of Cole v. Pardue, 94 F.3d 254, 261-62 (7th Cir. 1996).
Plaintiff argues that he has never been convicted of raping children
and has yet to be adjudicated as a sexually violent person. He takes issue
with the accuracy of the psychological report, contending that he has
been convicted of only two charges: aggravated criminal sexual abuse of a
13-16 year old victim and sexual abuse. However, Plaintiff’s therapist’s
are not restricted to considering only Plaintiff’s convictions in deciding
whether visits with minors should be allowed. They may consider all of
Plaintiff’s past and present behavior. Evidence beyond a reasonable
doubt that Plaintiff’s reported criminal history is completely accurate is
not required before the therapists may consider that history. As to
whether the minors Plaintiff wishes to visit meet Plaintiff’s victim profile,
Mr. Hansen explains that this factor is not dispositive: targeting victims
outside the profile is not uncommon. See Wirsching, 360 F.3d at 1201
(deference was owed professional judgment that sex offender’s visit with
his child could be detrimental to child and offender, even if child was not
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part of victim profile).
Plaintiff objects to Mr. Hansen’s affidavit on the grounds that Mr.
Hansen is not a defendant in this case and was not disclosed as a witness.
Mr. Hansen’s signature, however, is disclosed on the form denying
Plaintiff’s visitation request, which Plaintiff has had since the inception
of this case. Plaintiff was also aware of Mr. Hansen’s involvement
because Mr. Hansen was Plaintiff’s primary therapist when Plaintiff
requested the visit in 2009. Mr. Hansen’s affidavit causes no unfair
prejudice to Plaintiff, and Mr. Hansen does not need to be a defendant in
order for Defendants to rely on his affidavit.
Plaintiff also challenges Mr. Hansen’s qualifications, asserting that
Mr. Hansen states that he has a masters degree but has maintained in
another case that he has a doctorate. This dispute is immaterial.
Plaintiff has no evidence that Hansen is not a licensed professional
counselor who is qualified to make the decision at issue.
Plaintiff also seems to contend that the entire treatment team was
required to exercise their professional judgments, and therefore affidavits
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from each person on the treatment team are required. Plaintiff is correct
that Mr. Hansen cannot speak for the other team members, but Mr.
Hansen can aver to his own reasons for denying the visits. The entire
treatment team was not constitutionally required to weigh in on the
decision.
Plaintiff also argues that his therapists cannot consider him a
sexually violent person until he is adjudicated a sexually violent person.
He seems to be assailing Mr. Hansen’s reliance on the report prepared for
the state court detention proceedings. As discussed above, the therapists
may consider information from all sources, not just the sources rigorously
tested in a court of law. Mr. Hansen’s decision on visitation is not a de
facto adjudication that Plaintiff is a sexually violent person.
Plaintiff also points out that minor visitors will not be at risk
because of the presence of security guards and cameras. He contends
that a non-contact room could be used. Defendants do not address this
possibility. While security guards, cameras, and non-contact rooms
would lessen the physical risk presented to a minor, that does not obviate
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Mr. Hansen’s legitimate concern for the safety of the minors. In any
event, Mr. Hansen does not need to justify his decision on security
grounds because he has already justified the decision on therapeutic
grounds. The Court will not disturb this exercise of professional
judgment.
Plaintiff also argues that Mr. Hansen’s stated concerns are
pretextual. He reasons that, if Mr. Hansen were truly concerned, then all
communication with minors would be barred, including the letters and
phone calls which Plaintiff is currently allowed. But this argument
actually cuts against Plaintiff. The existence of other alternatives to
communicate with the minors weighs in favor of the restriction’s
constitutionality. Overton, 539 U.S. at 135 (“Were it shown that no
alternative means of communication existed, though it would not be
conclusive, it would be some evidence that the regulations were
unreasonable.”). The Supreme Court in Overton found that inmates
without visitation rights had alternatives such as phone calls and letters,
and that the existence of those alternatives supported the
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constitutionality of the visitation restriction. Id. Additionally, internal
inconsistencies are not a reason to disturb the deference owed to the
therapists. See Mays v. Springborn, 575 F.3d 643 (7th Cir.
2009)(upholding removal of magazine pages depicting prison riot even
though prisoners were allowed to watch tv shows about riots:"the
deference we afford prisons permits such seeming inconsistencies").
Plaintiff may even be able to lift his restriction by consenting to and
advancing through sex offender therapy and by consenting to a PPG,
which would allow for a more current and accurate evaluation.
In short, Defendants have demonstrated a “valid, rational
connection” between the restriction and a legitimate concern for safety or
rehabilitation. They have also demonstrated the exercise of professional
judgment, which must be given deference. Plaintiff’s arguments are not
enough to disturb that deference. Summary judgment must therefore be
granted to Defendants.
IT IS THEREFORE ORDERED:
1) Defendants’ supplemental motion for summary judgment is
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granted (d/e 60). The clerk of the court is directed to enter judgment in
favor of Defendants and against Plaintiff. All other 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.
2) 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.
R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis
should identify the issues Plaintiff will present on appeal and be
accompanied by a brief explaining the ground for appeal. See Fed. R.
App. P. 24(a)(1)(c).
ENTERED:
October 16, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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