Smego et al v. Phillips et al

Filing 60

OPINION (See Written Opinion): 1) Plaintiff's motion for reconsideration of the Court's dismissal of this case for failure to state a claim is denied (d/e 54 ). 2) The Court has reviewed Plaintiffs' memorandum in support of their in f orma pauperis appeal. For the reasons stated in this order and in the Court's 12/9/11 order, the Court cannot discern a good faith basis for appeal. Accordingly, the court certifies pursuant to 28 U.S.C. § 1915(a)(3) that Plaintiffs' petition to appeal in forma pauperis is not in good faith. The petition is denied (d/e 56 ). If Plaintiffs wish to contest this court's finding, they must renew their petition to proceed in forma pauperis with the Court of Appeals within 30 days after service of this order. See Fed.R.App.P. 24(a). The clerk is directed to send a copy of this order to the Seventh Circuit Court of Appeals. Entered by Judge Sue E. Myerscough on 10/23/2012. (VM, ilcd)

E-FILED

Tuesday, 23 October, 2012 12:36:14 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD SMEGO, et al.,
Plaintiff,

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

10-CV-3240

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
On September 25, 2012, Plaintiffs filed a motion to reconsider the Court’s
dismissal of this case. The Court gave Plaintiffs another opportunity to explain
how their federal allegations state a federal claim. Plaintiffs did not respond
directly but did file a memorandum in support of their in forma pauperis appeal,
which sets forth their reasons why they believe they state a claim. The Court has
considered the memorandum and still concludes that Plaintiffs fail to state a federal
claim for relief.
Plaintiffs have no federal equal protection right to be treated identically to
those confined in other facilities under the Illinois Mental Health Code. 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
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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. 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."). Plaintiffs’ alleged differential treatment is rationally
related to the fact that they are confined as sexually violent persons. See Thielman,
282 F.3d at 485 (uphholding 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.”); 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.”).
Additionally, the Court still concludes that the prohibition on laptop
computers does not state a claim for the violation of a federal right for the reasons
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stated in the Court’s 12/9/11 order. Plaintiffs’ inability to take online college
courses or access the internet does not change the Court’s conclusion. Plaintiffs
argue that they have no alternative access to the information provided in online
courses and through a laptop, but that is not the inquiry under Turner v. Safley, 482
U.S. 78 (1987). Alternatives need not be ideal. See Singer v. Raemisch, 593 F.3d
529, 539 (7th Cir. 2010)(rejecting prisoner’s argument that ban on Dungeons and
Dragons game left him no alternative for playing that game, where plaintiff could
play other games and could obtain other reading material).
IT IS THEREFORE ORDERED:
1) Plaintiff’s motion for reconsideration of the Court’s dismissal of this case
for failure to state a claim is denied (d/e 54).
2) The Court has reviewed Plaintiffs’ memorandum in support of their in
forma pauperis appeal. For the reasons stated in this order and in the Court’s
12/9/11 order, the Court cannot discern a good faith basis for appeal. Accordingly,
the court certifies pursuant to 28 U.S.C. § 1915(a)(3) that Plaintiffs’ petition to
appeal in forma pauperis is not in good faith. The petition is denied (d/e 56). If
Plaintiffs wish to contest this court's finding, they must renew their petition to
proceed in forma pauperis with the Court of Appeals within 30 days after service
of this order. See Fed.R.App.P. 24(a). The clerk is directed to send a copy of this
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order to the Seventh Circuit Court of Appeals.
ENTERED: October 23, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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