Smego et al v. Phillips et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 12/9/2011. SEE WRITTEN OPINION. (1) Plaintiff's Motion for Reconsideration 40 is granted to the extent the Court revisited their Complaint. Pursuant to Fed. R. Civ. P. 12(b)(6), Plaintiffs' c omplaint is dismissed, in its entirety, with prejudice for failure to state a federal claim. (2) The Clerk of the Court is directed to attach a copy of Exhibit 1, that can be found attached to the Complaint 1 in case number 11-CV-3337, Schloss, et al., v. Ashby, et al., to this order. (3) The hearing scheduled for December 12, 2011, is cancelled as unnecessary. (DM, ilcd)
E-FILED
Friday, 09 December, 2011 01:31:29 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD M. SMEGO,
JEREMY L. SCHLOSS,
DONNIE BARRETT,
MICHAEL W. LEWIS, and
EUGENE BROWN,
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Plaintiffs,
v.
FOREST ASHBY et al.,
Defendants.
10-CV-3240
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Five plaintiffs, Richard M. Smego, Jeremy L. Schloss, Donnie
Barrett, Michael Lewis and Eugene Brown, detained in the Rushville
Treatment and Detention Center (“Rushville”) have filed a Complaint
[1], pursuant to 42 U.S.C. § 1983, against Defendants Larry J. Phillips,
Eugene McAdory, Michelle R. B. Saddler, and any and all other unnamed
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and/or unknown persons discovered through the course of discovery.
Plaintiffs are detained by the Illinois Department of Human Services,
pursuant to the Illinois Sexually Violent Persons Act. A Merit Review
Order was written in this case by the Honorable Harold A. Baker
allowing Plaintiffs to proceed only on a claim that their First Amendment
right was violated. However, Plaintiffs have filed a Motion for
Reconsideration [40] of that order. The Court will revisit Plaintiffs’
Complaint.
ALLEGATIONS
In their Complaint, Plaintiffs allege that although all Illinois
Department of Human Services state mental health facilities are subject
to the rules of Title 59 of the Illinois Administrative Code governing
mental health, the defendants do not fairly apply the rules of Title 59.
Plaintiffs are not allowed the benefits and privileges granted to residents
at all other state mental health facilities. Specifically, Plaintiffs allege
that residents at all other state owned and operated mental health
facilities are allowed to own a personal computer, but Plaintiffs are not
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allowed this privilege. Plaintiffs claim Rushville is the only facility where
residents are not allowed to own and purchase, with their own funds, a
personal computer or laptop. Plaintiffs claim that safety and security
concerns do not exist. They claim that the defendants’ act of denying
Plaintiffs’ ability to own a computer does not allow them access to all
media, restricts their ability to participate in vocational programs that
require computer access, and hampers their efforts to obtain and store
case law, legal work, and legal reference materials. Plaintiffs claim the
Illinois Department of Human Service’s policy to deny Plaintiffs the
ability to own a personal computer violates their rights under the First
Amendment. Plaintiffs also claim the defendants have also violated
Plaintiff’s Fourteenth Amendment rights of Equal Protection and Due
Process.
ANALYSIS
State Law and Due Process
First, a violation of state law is not, by itself, a violation of federal
law. Guarjardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir.
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2010)(“[A] violation of state law is not a ground for a federal civil rights
suit.”). "[T]his court has consistently held that ‘42 U.S.C. § 1983
protects plaintiffs from constitutional violations, not violations of state
laws or . . . departmental regulations . . . ." Thompson v. City of Chicago,
472 F.3d 444, 454 (7th Cir. 2006), quoting Scott v. Edinburg, 346 F.3d
752, 760 (7th Cir.2003).
Plaintiffs allege their rights to due process have been violated. They
do not specifically state how their right to due process was allegedly
violated. However, they claim that they have grieved not being allowed
to own a computer and have addressed this issue with Rushville
administration on several occasions. The Court notes that 59 Il ADC
109.20, par. 2, provides that the facility director may restrict the
possession or use of computers, peripherals, modems, CDs, disks,
software, or other equipment used with the computer for all individuals
in a facility, when necessary to protect an individual or others from harm,
provided that notice of such restriction shall be given to all individuals
upon admission. Further, that statute provides that if it becomes
4
necessary to restrict individuals who did not receive notice of the
restriction upon admission, the professional responsible for overseeing
implementation of an individual's services plan may, with the approval of
the facility director, restrict the right to property when necessary to
protect the individual or others from harm. Based on allegations made
by Plaintiffs, they apparently have received notice of Rushville’s
restriction on computers. However, if not, a federal court is not an
enforcer of state laws and regulations. Accordingly, Plaintiffs state no
federal claim to the extent they allege that Defendants are violating the
spirit or text of Title 59 of the Illinois Administrative Code.
Access to Court
Plaintiffs’ allegations regarding denial of access to the court do not
state a claim. An access to the courts claim arises only when a plaintiff
suffers an “actual injury” from the inability to pursue a nonfrivolous
claim. Lewis v. Casey, 518 U.S. 343, 351 (1996); May v. Sheahan, 226
F.3d 876, 883 (7th Cir. 2000). Plaintiffs identify no legal action in which
they suffered any prejudice.
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Equal Protection
As to the Fourteenth Amendment Equal Protection claim,
Plaintiffs are not similarly situated to persons confined for treatment in
other state mental health facilities. Plaintiffs are in Rushville because
they have been "convicted of a sexually violent offense, . . .[and are]
dangerous because [they] . . . suffer[] from a mental disorder that makes
it substantially probable that . . . [they] will engage in acts of sexual
violence." 725 ILCS 207/5(f). Persons confined in other state mental
health facilities may also be dangerous to themselves or others, but they
do not fit the statutory definition for sexually violent persons. If they
did, they would be in Rushville. See Thielman v. Leean, 282 F.3d 478,
483 (7th Cir. 2002) ("facilities dealing with those who have been
involuntarily committed for sexual disorders are ‘volatile' environments
whose day-to-day operations cannot be managed from on high."). In
short, there is no equal protection claim because Plaintiffs are not
similarly situated to mentally ill persons held in other mental facilities.
Additionally, Plaintiffs’ alleged differential treatment is rationally related
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to the fact that they are confined as sexually violent persons. See
Thielman, 282 F.3d at 485 (upholding restraints used on sexually violent
persons during transport and not on other mentally ill patients: “[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.”).
Right to Own a Personal Computer
Humane treatment means the adequate provision of life’s basic
necessities, not luxuries such as gaming consoles and other electronic
equipment. See, e.g., Murphy v. Walker, 51 F.3d 714, 718 (7th Cir.
1995)(pretrial detainee had no constitutional right to television or
cigarettes); Roberts v. Cohn, 63 F.Supp.2d 921, 924 (N.D. Ind.
1999)(“It is well established that prison inmates do not have a
constitutional right to use or possess typewriters and word processors.”).
Further, Plaintiffs have no constitutional right to vocational programs.
See also Higgason v. Farley, 83 F.3d 807, 809 (7th Cir. 1996) (observing
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that the denial of access to educational programs does not infringe on a
protected liberty interest).
The only potential constitutional right implicated by denial of a
personally owned computer might be the First Amendment, in the sense
that Plaintiffs do not have access to “all” media. Yet even if the First
Amendment might be implicated, a viable First Amendment claim is not
stated because, as discussed infra, the ban is reasonably related to the
legitimate security concerns of the facility. See Turner v. Safley, 482
U.S. 78, 89 (1987)(setting forth legal standard for analyzing First
Amendment claims by prisoners).
The Court takes judicial notice of a memorandum filed in this
district in case number 11-CV-3337, Schloss, et al., v. Ashby, et al.,
brought by, among others, Co-Plaintiffs Jeremy Schloss, Michael Lewis,
Eugene Brown and Donnie Barrett. See Exhibit 1, the program director’s
memo, attached to the Complaint [1] in 11-CV-3337. The security
concerns are set forth in that memo: “Advancements in technology have
lead to increased ability to obtain/store/ trade contraband and/or engage
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in unauthorized communications and other deceptive practices. Such
practices threaten the safety and security of the facility and the
community and interfere with the facility’s therapeutic purposes.
Rushville administration has articulated a “valid, rational
connection” between the ban and the security concern. Turner, 482 U.S.
at 89. As the memo states, the security concerns arise from the
expanding ability of many different kinds of electronics to obtain, store,
and communicate information. Striking down the ban would negatively
impact guards’ ability to discover contraband. As to the other Turner
factors, Plaintiffs have alternate ways to exercise their First Amendment
rights that do not require a computer, while the facility has no ready
alternatives to avert the security problem posed by the electronics other
than banning them. Plaintiffs have access to the media through
newspapers, magazines, television and radio. They are not
constitutionally required to have access to all media. See Singer v.
Raemisch, 593 F.3d 529, 539 (7th Cir. 2010)(banning of fantasy role
playing games was rationally related to legitimate penological interests
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and prisoner had alternative means of exercising right, such as possessing
other reading materials or playing allowable games).
Though application of the Turner analysis is often premature at the
motion to dismiss and merit review stage, see Lindell v. Frank, 377 F.3d
655, 657-58 (7th Cir. 2004), here the legitimate penological reasons for
the rule are so obvious and well established that dismissal at the pleading
stage is proper. See Williams v. Wisconsin, 336 F.3d 576, 582 (7th Cir.
2003)(discussing Turner and affirming dismissal for failure to state a
claim regarding parolee’s travel restrictions and their incidental
interference with his right to marry); Belton v. Singer, 2011 WL
2690595 *12 (D.N.J. 2011)(unpublished)(dismissing at pleading stage
claim by sexually violent detainee challenging confiscation of gaming
consoles and other electronics); Hedgespeth v. Bartow, 2010 WL
2990897 *7 (W.D. Wis. 2010)(unpublished)(on summary judgment,
finding that rule banning possession of video games and gaming
equipment by sexually violent detainee was rationally related to
legitimate security interests).
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In short, the Court cannot hypothesize a plausible scenario under
which the Constitution would require Rushville to permit its residents to
possess personal computers or laptops. Such an order would ignore the
substantial deference afforded the facility’s administrators in making
these kinds of decisions. See Beard v. Banks, 548 U.S. 521, 528
(2006)(“[C]ourts owe ‘substantial deference to the professional judgment
of prison administrators.’”)(quoted cite omitted).
IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion for Reconsideration [40] is granted to the
extent the Court revisited their Complaint. Pursuant to Fed. R. Civ. P.
12(b)(6), Plaintiffs’ complaint is dismissed, in its entirety, with prejudice
for failure to state a federal claim. The Clerk of the Court is directed to
terminate this lawsuit in its entirety.
2) The Clerk of the Court is directed to attach a copy of Exhibit 1,
that can be found attached to the Complaint [1] in case number 11-CV3337, Schloss, et al., v. Ashby, et al., to this order.
3) The hearing scheduled for December 12, 2011, is cancelled as
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unnecessary. The Clerk of the Court is directed to notify Rushville of the
cancellation.
4) If Plaintiffs wish to appeal this dismissal, they must file a notice
of appeal with this Court within 30 days of the entry of judgment. Fed.
R. App. P. 4(a). A motion for leave to appeal in forma pauperis should
set forth the issues the plaintiffs plan to present on appeal. See Fed. R.
App. P. 24(a)(1)(C).
ENTERED: December 9, 2011
FOR THE COURT:
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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3:11-cv-03337-SEM-BGC # 1
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