Smego v. Weitl
Filing
7
OPINION (SEE WRITTEN OPINION): 1. Plaintiff's motion to file an amended complaint is granted (d/e 5 ). The clerk is directed to docket the Amended Complaint before docketing this order. 2. Plaintiff's Amended Complaint is dismissed for failure to state a claim, without prejudice to filing another Amended Complaint regarding Plaintiff's claim of inappropriate treatment at Rushville. Plaintiff's Amended Complaint is due May 31, 2013. 3) The hearing scheduled for May 20, 2013, is cancelled asunnecessary. The clerk is directed to notify Plaintiff's detention facility of the cancellation. Entered by Judge Sue E. Myerscough on 5/10/2013. (VM, ilcd)
E-FILED
Friday, 10 May, 2013 01:59:22 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD MICHAEL SMEGO,
Plaintiff,
v.
KIMBERLY WEITL, PsyD.,
Defendant.
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13-CV-3068
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's allegations are taken from his Amended Complaint,
which is being filed contemporaneously with this order.
Plaintiff is detained in the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons Act. The
Act mandates a reexamination every 12 months of whether the
detainee "has made sufficient progress to be conditionally released
or discharged." 725 ILCS 207/55(a). Pursuant to this statute, the
Department of Human Services is required to submit a written
report to the state court regarding the detainee's mental condition.
Defendant Kimberly Weitl, a licensed clinical psychologist,
conducted a reexamination of Plaintiff in December 2012. Her
report is attached to Plaintiff's Amended Complaint. Dr. Weitl
recommended in her report that Plaintiff should remain detained in
the Rushville Treatment and Detention Facility.
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Plaintiff alleges that "Dr. Weitl made numerous false
allegation[s] and statements, twisted facts to the point of
unrecognizability, and omitted so many essential facts including
exculpatory evidence as to render her report an outright lie." (Plf.'s
Amended Complaint, p. 3, para. 4.) Plaintiff alleges that Dr. Weitl
failed to conduct any independent testing or investigation and
spoke to Plaintiff for only five minutes.
Plaintiff maintains that Dr. Weitl's purportedly false report
denies Plaintiff a fair hearing in his state court detention
proceedings. Further, Plaintiff alleges that Dr. Weitl's false report is
used by the Department of Human Services to treat Plaintiff "for
illness and mental health issues I do not suffer from forcing me to
endure medical treatments that are unfounded." Id. at para. 8.
Plaintiff seeks compensatory and punitive damages.
ANALYSIS
If Dr. Weitl's report and conclusions are deliberately false,
then the validity of Plaintiff's detention is called into question.
Therefore, Plaintiff's challenge to Dr. Weitl's report is effectively a
challenge to his detention, even though Plaintiff does not seek
release.
A challenge to the validity of the fact of detention cannot
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proceed as a civil rights action under 42 U.S.C. Section 1983. In
federal court, Plaintiff may only challenge state detention as a
habeas corpus action, after exhausting state court remedies. Heck
v. Humphrey, 512 U.S. 477, 586-87 (1994)(damages not recoverable
under 42 U.S.C. Section 1983 for unconstitutional imprisonment
unless sentence has been otherwise invalidated); DeWalt v. 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). Plaintiff's current legal remedy is to
challenge Dr. Weitl's report in Plaintiff's state circuit court
proceedings and then to pursue all available appeals. See, e.g., In
re Detention of Stanbridge, 980 N.E.2d 598 (S.Ct. Ill. 2012)(example
of appeal of state circuit court's finding that no probable cause
existed to conclude that the plaintiff was no longer sexually violent).
Even if the validity of Plaintiff's detention is not implicated by
Plaintiff's claims, Dr. Weitl is entitled to witness immunity from
Plaintiff's claims arising from Dr. Weitl's report submitted to the
state court. House v. Belford, 956 F.2d 711, 720 (7th Cir.
1992)(absolute witness immunity extends to private and
governmental witnesses); Brown v. Bowman, 668 F.3d 437, 445 (7th
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Cir. 2012)(court-appointed experts entitled to absolute immunity for
their psychiatric reports submitted to court regarding the plaintiff's
fitness to practice law). "[W]itness immunity is not limited to incourt testimony." Brown, 668 F.3d at 445.
Lastly, Plaintiff's vague claims about the inappropriateness of
his current treatment can proceed only against the individuals
treating him. Dr. Weitl is not treating Plaintiff. To state a
constitutional claim against the individuals treating him, Plaintiff
must allege facts that plausibly suggest that the treatment
decisions are a "'substantial departure from accepted professional
judgment.'" Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(quoting
Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009). Even if the
proper Defendants were named on this claim, no plausible claim is
stated because Plaintiff does not specify the treatment he
challenges or explain why that specific treatment is outside the
range of professional judgment. However, Plaintiff will be given an
opportunity to file an amended complaint regarding this claim,
naming the proper defendants and providing sufficient factual detail
for the Court to determine whether a plausible claim is stated.
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IT IS THEREFORE ORDERED:
1.
Plaintiff's motion to file an amended complaint is granted
(d/e 5). The clerk is directed to docket the Amended Complaint
before docketing this order.
2.
Plaintiff's Amended Complaint is dismissed for failure to
state a claim, without prejudice to filing another Amended
Complaint regarding Plaintiff's claim of inappropriate treatment at
Rushville. Plaintiff's Amended Complaint is due May 31, 2013.
3)
The hearing scheduled for May 20, 2013, is cancelled as
unnecessary. The clerk is directed to notify Plaintiff’s detention
facility of the cancellation.
ENTERED: May 10, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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