Levi v. Gaskell et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 5/15/2012. The Plaintiff's petition to proceed in forma pauperis is denied, d/e 2 , and this case is dismissed without prejudice. The hearing scheduled for 5/21/2012, is cancelled as unnecessary. All pending motions are denied as moot; this case is CLOSED. If the Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). (MAS, ilcd)
E-FILED
Tuesday, 15 May, 2012 02:47:37 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RONALD ANTHONY LEVI,
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Plaintiff,
v.
STEVEN GASKELL,
BARRY LEAVITT, and
the STATE OF ILLINOIS,
Defendants.
12-CV-3103
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis on his claim challenging his detention hearing and the
constitutionality of 725 ILCS 207/30.
The “privilege to proceed without posting security for costs and fees
is reserved to the many truly impoverished litigants who, within the
District Court's sound discretion, would remain without legal remedy if
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such privilege were not afforded to them.” Brewster v. North Am. Van
Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court
must dismiss cases proceeding in forma pauperis “at any time” if the
action is frivolous, malicious, or fails to state a claim, even if part of the
filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court
grants leave to proceed in forma pauperis only if the complaint states a
federal claim. A hearing was scheduled to assist in this review, but the
hearing will be cancelled as unnecessary.
LEGAL STANDARD
To state a claim, the allegations must set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief .”
Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to
give “‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th
Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)(add’l citation omitted). The factual “allegations must plausibly
suggest that the plaintiff has a right to relief, raising that possibility above
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a ‘speculative level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged . . . . Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing
Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally
construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009).
ALLEGATIONS
In or around August, 2006, Plaintiff was scheduled for release from
the IDOC on mandatory supervision. Instead of being released, Plaintiff
was transferred to the Department of Human Services and held in
“isolation segregation” for more than 10 days while a petition to detain
him pursuant to the Illinois Sexually Violent Persons Act was filed. He
contends that this detention impeded his ability to mount a defense to
the petition. 725 ILCS 207/30(b) provides that “[i]f the person named
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in the petition is in custody, the court shall hold the probable cause
hearing within 72 hours after the petition is field, excluding Saturdays,
Sundays, and legal holidays. The court may grant a continuance of the
probable cause hearing for no more than 7 additional days upon the
motion of the respondent, for good cause.”
A hearing was eventually held on the petition to commit Plaintiff
pursuant to 725 ILCS 207/30, which directs the state court to “hold a
hearing to determine whether there is probable cause to believe that the
person named in the petition is a sexually violent person.” Under the
Sexually Violent Persons Act, if the state court determines probable cause
is present, the court orders that the individual be kept in custody for an
evaluation. A trial is supposed to be held no later than 120 days after the
probable cause hearing, but the deadline may be extended in certain
circumstances. 725 ILCS 207/35(a). According to Plaintiff, the state
court judge found probable cause to detain him in August, 2006, but
Plaintiff still has not had his trial. (Complaint, ¶ 22). The reason for the
delay is not provided.
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Plaintiff alleges that, as part of his pretrial detention proceedings,
Defendants Gaskell and Leavitt, who are psychologists, wrote a report
diagnosing Plaintiff with a mental disorder that is not listed in the
Diagnostic and Statistical Manual of Mental Disorders—“paraphilia, not
otherwise specified, nonconsent.” The report was allegedly based solely
on Plaintiff’s criminal record, and the report’s conclusions were false and
faulty. The state court judge allegedly improperly relied on this faulty
report to find probable cause to detain Plaintiff. Plaintiff further
maintains that 725 ILCS 207/30 is facially unconstitutional because the
procedural safeguards required by the Supreme Court case of U.S. v.
Salerno, 481 U.S. 739 (1987) are lacking.
Plaintiff seeks his immediate release, a declaration that 725 ILCS
207/30 is unconstitutional, and money damages.
ANALYSIS
Plaintiff’s challenges to the psychologists’ false evaluation go to the
validity of his current detention, challenges which can only be pursued in
federal court as a habeas corpus action, if at all. See, e.g., DeWalt v.
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Carter, 224 F.3d 607, 614 (7th Cir. 2000)(challenges to fact or duration
of confinement must be pursued in habeas action, not in an action under
42 U.S.C. § 1983). Thus, Plaintiff cannot seek damages against
Defendants Leavitt and Gaskell for their alleged misconduct which
caused Plaintiff’s detention.1
Plaintiff’s constitutional challenges to 725 ILCS 207/30 also
necessarily implicate the validity of his confinement. Plaintiff contends
that the Supreme Court case of U.S. v. Salerno requires an adversarial
hearing on whether “lesser restrictive conditions” of pretrial confinement
(such as electronically monitored release) would adequately protect the
community. He further argues that Salerno requires his pretrial
confinement to be supported by clear and convincing evidence, not
simply “probable cause.” See Salerno, 481 U.S. at 750 (upholding Bail
Reform Act, which allows pretrial detention if Government proves “by
clear and convincing evidence that no conditions of release can
Additionally, “court-appointed experts, including psychiatrists, are absolutely
immune from liability for damages when they act at the court’s direction.” Cooney v.
Rossiter, 583 F.3d 967, 970 (7th Cir. 2009).
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reasonably assure the safety of the community or any person.”); Mental
Hygiene Legal Services, 2009 WL 579445 (2d Cir.
2009)(unpublished)(affirming preliminary injunction preventing
enforcement of law authorizing pretrial confinement of sex offender
without a finding that a lesser restrictive condition would suffice); but see
In re Detention of Hardin, 238 Ill.2d 33 (2010)(probable cause standard
in Sexually Violent Persons Act means that the State must “‘establish a
plausible account on each of the required elements’” and provide “‘a
substantial basis for the petition’ when all reasonable factual inferences
are considered, probable cause is established.’”)(quoted cite omitted),
cert. denied, 131 S.Ct. 967 (2011).
Plaintiff’s challenge to the constitutionality of 725 ILCS 207/30 is
effectively a challenge to the constitutionality of his confinement. Thus,
his challenge can only be pursued in federal court as a habeas corpus
action after the exhaustion of state court remedies and the satisfaction of
other habeas corpus requirements. See, e.g., Lieberman v. Thomas, 505
F.3d 665 (7th Cir. 2007)(denying habeas challenge by sexually violent
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person regarding alleged due process violation in probable cause hearing
where petitioner had not presented the claim in state court proceedings);
Varner v. Monohan, 460 F.3d 861 (7th Cir. 2006)(example of habeas
action by sexually violent person challenging constitutionality of
commitment procedures); see also Sweeney v. Bartow, 612 F.3d 571 (7th
Cir. 2010)(Younger abstention doctrine counseled against federal court
interference in ongoing state commitment proceedings under the Sexually
Violent Persons Act).
In sum, Plaintiff’s challenges cannot be pursued at this time in an
action under 42 U.S.C. § 1983. This Court cannot sua sponte convert
this claim into a habeas corpus action because doing so may cause
unintended adverse consequences for Plaintiff. Habeas corpus actions
come with their own specific requirements, procedures, and consequences
that Plaintiff should carefully consider. For example, exhaustion of state
remedies is typically required before a federal habeas action may be filed,
and prisoners are generally limited to seeking habeas corpus only once.
See 28 U.S.C. § 2254(b)(1)(A); Rules Governing § 2254 Cases, Rule 9.
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Accordingly, the proper procedure is to dismiss this claim, without
prejudice to Plaintiff’s filing of a habeas corpus action.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s petition to proceed in forma pauperis is denied (d/e
2), and this case is dismissed without prejudice. The hearing scheduled
for May 21, 2012, is cancelled as unnecessary. The clerk is directed to
notify Plaintiff’s detention facility of the cancellation. All pending
motions are denied as moot, and this case is closed.
2.
If Plaintiff wishes to appeal this dismissal, he 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 Plaintiff plans to present on appeal. See Fed.
R. App. P. 24(a)(1)(C).
ENTERED:
May 15, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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