Smego v. Weitl
Filing
11
MERIT REVIEW OPINION (See Written Opinion): IT IS FURTHER ORDERED: 1) Plaintiff's petition to proceed in forma pauperis is granted (d/e 2 ); 2) Plaintiff's motion to supplement is granted (d/e 10 ) to the extent that Plaintiff was re questing the Court to consider the additional information; 3) the Clerk is directed to attempt service on Defendants pursuant to the standard procedures; and, 4) Defendants Weitl, Queen, Prezell, and Goorley are terminated. Entered by Judge Sue E. Myerscough on 11/25/2013. (VM, ilcd)
E-FILED
Monday, 25 November, 2013 10:38:35 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD M. SMEGO,
Plaintiff,
v.
ERIC KUNKEL, et al.,
Defendants.
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13-CV-3068
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. He seeks leave to proceed in forma pauperis.
Plaintiff's original complaint, naming only Kimberly Weitl as a
Defendant, was dismissed with leave to replead. In short, the Court
concluded that Plaintiff's challenges to Weitl's evaluation of Plaintiff
in relation to Plaintiff's sexually violent proceedings in state court
were effectively challenges to the fact of Plaintiff's detention.
However, Plaintiff was given leave to file an amended complaint with
regard to his allegations that the treatment he has been receiving
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for his mental disorder is outside the range of accepted professional
judgment.
Before the Court is Plaintiff's second amended complaint.
Plaintiff again names Kimberly Weitl as a Defendant. Again the
Court concludes that Plaintiff has no viable claim against Weitl, for
the reasons already stated in the Court's Order of May 10, 2013.
Challenges to Weitl's evaluation belong in the state court
proceedings for which that evaluation was prepared.
Plaintiff does state an arguable constitutional claim that the
diagnosis and treatment decisions by his clinical treatment team at
Rushville are outside the range of professional judgment. Plaintiff
is constitutionally entitled to treatment for the mental disorder
which has resulted in his indefinite detention. That treatment must
be within the bounds of accepted professional judgment. A
substantial departure from accepted professional judgment
amounts to deliberate indifference to Plaintiff's serious mental
health needs. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011)(quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009).
Plaintiff alleges that his diagnosis of paraphilia, not otherwise
specified, is not a diagnosis recognized by the Diagnosis and
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Statistical Manual of Mental Disorders, Fifth Edition. He further
alleges that Defendants cannot possibly be basing their treatment
decisions on Plaintiff's current condition because Plaintiff has
received no testing since 2009. According to Plaintiff, the
professional community agrees that there is no known treatment for
paraphilia. Plaintiff contends that paraphilia is considered to be in
remission if a patient has not acted upon deviant sexual urges for
five years.
These allegations are sufficient to state a claim, but this claim
will proceed only against Plaintiff's clinical treatment team:
Defendants Jumper, Groot, Wilczynski, Bond, Ganz, Guss,
Hankerson, Hansen, Matusen, Sandford, Steffen, and Caraway.
Whether all these Defendants were or are personally responsible for
Plaintiff's treatment cannot be determined without a more
developed record. Plaintiff alleges that the other Defendants were
involved too, but the present allegations are too conclusory for the
Court to understand how these Defendants are or were actually
involved in Plaintiff's treatment at the Rushville Treatment and
Detention Center.
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Also, Plaintiff alleges that he has repeatedly been placed with
dangerous roommates who threaten Plaintiff's physical safety and
are contraindicated in light of Plaintiff's alleged post-traumatic
stress disorder. Plaintiff asserts that his psychological condition
requires him to be in a room by himself.
Requiring Plaintiff to live with a roommate is not
unconstitutional from a conditions-of-confinement perspective.
See Bell v. Wolfish, 441 U.S. 520, 540, 542 (1979)(double-celling
pretrial detainees in one-man cell did not violate due process).
However, Plaintiff's allegations allow a plausible inference that the
persons with whom he has been roomed are harmful to Plaintiff's
serious mental condition. This claim will also proceed against
Plaintiff's clinical treatment team.
IT IS ORDERED:
1.
Pursuant to a review of the Complaint, the Court finds
that Plaintiff states federal constitutional claims arising from: 1)
the alleged lack of diagnosis and treatment for his mental disorder;
and 2) placement with roommates who are harmful for Plaintiff's
serious mental condition. These claims proceed against Defendants
Jumper, Groot, Wilczynski, Bond, Ganz, Guss, Hankerson, Hansen,
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Matusen, Sandford, Steffen, and Caraway. All other Defendants are
dismissed without prejudice. 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.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
3.
The Court will attempt service on Defendants by sending
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service is sent to file an Answer. If
Defendants have not filed Answers or appeared through counsel
within 90 days of the entry of this order, Plaintiff may file a motion
requesting the status of service. After counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
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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 60 days of the day
the waiver of service is sent by the Clerk. 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.
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
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Defendants is not available, Plaintiff will be notified and instructed
accordingly.
7.
Counsel for Defendants is hereby granted leave to depose
Plaintiff at Plaintiff's place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
8.
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
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.
9.
If a Defendants 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).
IT IS FURTHER ORDERED:
1) Plaintiff's petition to proceed in forma pauperis is
granted (d/e 2);
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2) Plaintiff's motion to supplement is granted (d/e 10) to
the extent that Plaintiff was requesting the Court to consider
the additional information;
3) the Clerk is directed to attempt service on Defendants
pursuant to the standard procedures; and,
4) Defendants Weitl, Queen, Prezell, and Goorley are
terminated.
ENTERED: November 25, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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