Schloss v. Wilczynski et al

Filing 5

OPINION entered by Judge Sue E. Myerscough on 7/15/2013. Defendants Simpson and the Illinois Department of Human Services are dismissed. Rule 16 Scheduling Conference set for 9/23/2013 at 1:30 PM by telephone from Springfield (court will place call) before Judge Sue E. Myerscough. (MAS, ilcd)

E-FILED

Monday, 15 July, 2013 05:28:36 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JEREMY SCHLOSS,
Plaintiff,
v.
AIMEE WILCYNSKI, et al.,
Defendants.

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13-CV-3029

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis.
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 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

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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 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
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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
Plaintiff is detained in the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons Act.
Defendants Oberhausen, Tucker and Schostak were part of
Plaintiff's treatment team in 2008-2009. These Defendants
allegedly threatened and manipulated Plaintiff into making up
answers to questions about fantasies and arousal to violent stimuli,
answers which were used against Plaintiff in his state court
proceedings. These Defendants also played "mind games" with
Plaintiff and retaliated against Plaintiff for challenging his
treatment. Plaintiff eventually withdrew his consent to treatment
because he could no longer endure the alleged abusive environment
and the lack of an effective, individualized treatment plan. Plaintiff
alleges that his "master treatment plan" is supposed to be an
individualized psychiatric treatment plan designed to rehabilitate
him for release. However, according to Plaintiff, his master
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treatment plan is a farce, focusing only on his criminal record with
the design ensure his continued detention.
Plaintiff renewed his consent to treatment in mid-2011 but
was told that no openings were available, due to the fact that the
resident population is over 500 and the Center lacks adequate
treatment staff. His current master treatment plan remains
inadequate.
Plaintiff alleges retaliation for his complaints in the form of
assigning "sexual deviants" as Plaintiff's roommates. Additional
vague retaliation is also alleged.
ANALYSIS
Plaintiff is entitled to humane conditions of confinement and
to adequate treatment for his serious mental disorder, as
determined by an appropriate professional exercising professional
judgment. See Youngberg v. Romeo, 457 U.S. 307, 323
(1982)(decisions by professionals working at mental health
institution are afforded deference and violate the Constitution only
if professional judgment not exercised). Plaintiff is not entitled to
dictate the treatment he receives. Plaintiff's constitutional rights
are violated only if the treatment decisions are a "substantial
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departure from accepted professional judgment." Sain v. Wood, 512
F.3d 886, 894-95 (7th Cir. 2009).
Liberally construing his allegations, Plaintiff states a claim
that he has been denied adequate treatment for his serious mental
disorder. Also, Plaintiff arguably states a claim that the facility is
so overcrowded as to be inhumane, though drawing that conclusion
from the factual allegations is a stretch. Lastly, Plaintiff states a
claim for retaliation for his complaints about his treatment.
Defendants Ganz, Queen, Bond, Wilzynski, Oberhausen,
Tucker, and Schostak have allegedly been involved in the refusal to
provide effective treatment for Plaintiff's mental disorder and may
also have been involved in the alleged retaliation. Defendant
Jumper, in his role as the clinical director, and Defendant Caraway,
as associate clinical director, are also plausible Defendants.
Defendants Ashby, Saddler, and Liberty Healthcare
Corporation will remain as Defendants because Plaintiff alleges that
systemic overcrowding and understaffing is at least one cause of his
inability to obtain adequate treatment.
Defendants Oberhausen, Tucker, and Schostak appear to have
been involved only in the 2008-2009 incidents, according to
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Plaintiff's allegations. Thus the claims against Oberhausen,
Tucker, and Schostak are likely barred by the two-year statute of
limitations. Evans v. City of Chicago, 434 F.3d 916, 934 (7th Cir.
2006)(two year statute of limitations for claim under 42 U.S.C.
Section 1983). However, the statute of limitations is an affirmative
defense to be raised by Defendants in all but the most obvious
circumstances.
No claim is stated against Defendant Simpson. Simpson's
alleged failure to remedy the problem by properly handling
Plaintiff's grievances does not violate the Constitution. See
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)(“a state’s
inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.”).
Lastly, the Illinois Department of Human Services is not a
proper Defendant because the IDHS is effectively the State of
Illinois. The Eleventh Amendment protects States from lawsuits
seeking damages in federal court. Woods v. Illinois Department of
Children and Family Serv., 710 F.3d 762, 764 (7th Cir. 2013). A
State can be sued for injunctive relief, but that accomplished by
naming a State official as a defendant in his or her official capacity.
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Since Plaintiff does seek injunctive relief, the current Director will
be added in his or her official capacity.
IT IS ORDERED:
1.

Pursuant to its review of the Complaint, the Court finds

that Plaintiff states federal constitutional claims based on the
alleged lack of treatment for his serious mental disorder, the alleged
overcrowding at Rushville, and the alleged retaliation for Plaintiff's
complaints about his treatment. This case proceeds solely on the
claims identified in this paragraph. Any additional claims shall not
be included in the case, except at the Court’s discretion on motion
by a party for good cause shown or pursuant to Federal Rule of
Civil Procedure 15.
2.

Defendants Simpson and the Illinois Department of

Human Services are dismissed.
3.

If a Defendant fails to sign and return a Waiver of Service

to the Clerk within 30 days after the Waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal’s Service on that Defendant and will require that
Defendant to pay the full costs of formal service pursuant to Federal
Rule of Civil Procedure 4(d)(2).
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4.

With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
5.

Defendants shall file an answer within the time prescribed

by Local Rule. A motion to dismiss is not an answer. The answer
should include all defenses appropriate under the Federal Rules.
The answer and subsequent pleadings shall be to the issues and
claims stated in this Opinion.
6.

Plaintiff shall serve upon any Defendant who has been

served but who is not represented by counsel a copy of every filing
submitted by Plaintiff for consideration by the Court and shall also
file a certificate of service stating the date on which the copy was
mailed. Any paper received by a District Judge or Magistrate Judge
that has not been filed with the Clerk or that fails to include a
required certificate of service shall be stricken by the Court.
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7.

Once counsel has appeared for a Defendant, Plaintiff need

not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's document
electronically and send a notice of electronic filing to defense
counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed
accordingly.
8.

This cause is set for further scheduling procedures under

Fed. R. Civ. P. 16 on September 23, 2013 at 1:30 p.m., or as soon
as the Court can reach the case, before U. S. District Judge Sue E.
Myerscough by telephone conference. The conference will be
cancelled if service has been accomplished and no pending issues
need discussion. Accordingly, no writ shall issue for Plaintiff’s
presence unless directed by the Court.
9.

Counsel for Defendants is hereby granted leave to depose

Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
10. Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
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Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
IT IS FURTHER ORDERED THAT THE CLERK IS
DIRECTED TO: 1) terminate Defendants Simpson and the Illinois
Department of Human Services; 2) add as a Defendant the current
Director of Rushville Treatment and Detention Center, in his or her
official capacity; and 3) attempt service on Defendants pursuant to
the District's standard procedures.
ENTERED:

July 15, 2013

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

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