Walker v. Pennock et al

Filing 117

OPINION entered by Judge Sue E. Myerscough on 7/11/2017. Defendants' motion for summary judgment is granted, d/e 103 . Plaintiff's motion for status is denied as moot, d/e 116 . Judgment to be entered in favor of the Defendants and aga inst the Plaintiff. This case is TERMINATED, with the parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated. If the Plaintiff wishes to appeal this judgment, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(4). (MAS, ilcd)

E-FILED

Tuesday, 11 July, 2017 03:29:01 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
FRANKIE N. WALKER,
Plaintiff,
v.
SHAN JUMPER, et al.,
Defendants.

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13-CV-3079

OPINION
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. This case proceeds on claims that Plaintiff has
been denied treatment for his serious mental disorder because his
progress has been conditioned on taking polygraph tests and
completing programs that are not targeted to treating his mental
disorder. Plaintiff maintains that these treatment requirements are
in reality unnecessary and a delay tactic. Plaintiff has also tried to
challenge the results of a March 2010 polygraph and the
procedures employed to administer that polygraph, but that claim
has been dismissed as barred by the statute of limitations.
(11/18/13 Order.)
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Defendants move for summary judgment which is granted.
In short, Plaintiff’s failure to progress in treatment is due to
Plaintiff, not to Defendants or to the treatment program offered.
Facts
The treatment program at Rushville is divided into five phases,
with each phase having different levels of programming. (Undisp.
Facts 13, 16.) Plaintiff was admitted to Rushville in 2007. He
completed the first treatment phase in the beginning of 2010 and
then began Phase II (accepting responsibility). (Undisp. Fact 36,
37.) In the disclosure level of Phase II, residents:
Work on relapse prevention, talk about their sexual
histories, and describe their sexual offenses. They work
on Phase II goals, which include: taking responsibility
for their sexual offense histories, learning to not blame
others for their past offenses, being open and honest
about their pasts, learning about thinking errors that
lead to sexual behavior and offenses, and writing and
speaking about their life stories.
(Undisp. Fact 17.) In phase II, residents are given a polygraph test,
Defendants assert to “assess [the residents’] level of honesty.”
(Proposed Undisp. Fact 18.) Plaintiff contends that polygraphs are
unreliable.

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As part of the phase II program, Plaintiff took a polygraph test in
December 2009 and another polygraph test in March 2, 2010.
Plaintiff passed the first polygraph test, which dealt with the use of
force, restraints, threats of harm, use of weapons, and striking
victims. (Pl.’s Declaration para. 8., d/e 114.) The second test
asked questions about unreported sexual offenses. Plaintiff was
found to be “not truthful” when he answered “no” to the following
questions on the second test:
1) Have you ever sexually offended against a male?
2) Besides what you told your group, do you have any victims
under the age of 12?
3) Have you deliberately withheld anything from your group
about your sexual offense history?
(3/2/2010 Examination Results, d/e 106, p. 68.) The posttest interview portion of the results states that Plaintiff had been
confused as to the definitions provided to him, in particular
regarding whether he had sexually abused males. Plaintiff’s
understanding of the term “sexually offended” meant a criminal
sexual offense, but the definition given to him during the polygraph
exam apparently included manipulation, regardless of whether the
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manipulation qualified as a crime. Id. p. 69. Plaintiff asserts that
his treatment group in March 2010 was run by an intern and that
“clinician and therapists . . . create their own definitions of ‘sex
offenses’ and coerce and force admissions and adherence to these
unorthodox definitions.” (Pl.’s Declaration para 2, d/e 114.)
Plaintiff believes that the second polygraph test was given to
sabotage him and to justify his continued confinement, but this
assertion is not supported by any evidence. (Pl.’s Resp. para. 40,
d/e 113.) The 2010 polygraph has not been admitted in Plaintiff’s
civil commitment proceedings. (Pl.’s Dep. 63-64.)
Ever since the 2010 polygraph test, Plaintiff has focused his
efforts on expunging that test. He voluntarily withdrew from
treatment in June 2010 because he felt he was being badgered
about the failed polygraph test rather than being allowed to work on
treatment. (Pl.’s Resp. para. 45, d/e 113.) His voluntary
withdrawal from treatment continued until April 2013, when he
expressed an interest in resuming treatment. However, he then
refused to initial the sections of the consent form about uncharged
offenses and also stated that he would not be disclosing his offense
history because he did not want to waive any rights relating to his
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litigation over the 2010 polygraph results. (Defs.’ Undisp. Facts 4749.)
Plaintiff argues that requiring him to sign these parts of the
consent form violated his Fifth Amendment right against selfincrimination. This is a new claim that is not part of this case. In
any event, Plaintiff admitted that he had already disclosed all of his
sexual history and nothing in the record suggests that he was
charged criminally based on those disclosures. See, e.g., McKune v.
Lile, 536 U.S. at 33 (conditioning prison sexual abuse treatment
program on inmate's acceptance of responsibility for crimes did not
violate Fifth Amendment because of voluntary nature of
participation); Allison, 332 F.3d 1076 (no Fifth Amendment
violation for sexually dangerous civil detainees who were required to
admit crimes as part of voluntary treatment which offered
opportunity for release).
On November 14, 2013, Plaintiff did sign a consent-totreatment form, though he objected to Defendant Louck’s statement
that Plaintiff may be required to take another polygraph. Ten days
later, Defendant Louck informed Plaintiff that Plaintiff would need
to complete a sexual history polygraph. Plaintiff objected,
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“acknowledg[ing] that his priority was to fight the injustices that he
perceived from the March 2010 polygraph[,]” and that the
“challenge to the March 2010 polygraph outweighed his
commitment to treatment.” (Undisp. Fact 55.) Plaintiff confirmed
in the following months that he would not take another polygraph.
(Undisp. Facts 56-58.)
In June of 2014, Plaintiff was referred to a group called the
Power to Change, which was explained to him as a prerequisite to
participating in phase II. (Undisp. Fact 60.) Plaintiff objected, but
he continued with treatment for the rest of 2014, including the
Power to Change group. (Undisp. Fact 62.) During this time, he
and his therapists reached an understanding about how Plaintiff
could disclose his behavior in the Illinois Department of Corrections
without causing problems with a polygraph. (Undisp. Fact 63.)
In January 2015, Plaintiff moved from the Power to Change
group to the disclosure phase in Phase II. Plaintiff signed a master
treatment plan which included successfully passing the polygraph
examination. (Undisp. Fact 66.) Plaintiff continued with treatment
at the disclosure level of Phase II, but in April 2015 stated that he
wanted to hold off on the polygraph. Plaintiff continued to oppose
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taking a polygraph through September 2015. (Undisp. Facts 6972.) Plaintiff’s therapist “counseled him that his rigidity and pride
may be interfering with his ability to accept the treatment process.”
(Undisp. Fact 72.)
In October 2015, Plaintiff was again told that he needed to
pass a polygraph to complete Phase II. He was told that a new
polygrapher could administer the test the next month and that
Plaintiff could then progress to Phase III if he passed the polygraph.
Plaintiff refused, stating, “I’m not concerned about moving forward
in treatment, I’m concerned about catching a culprit.” (Undisp.
Fact 73.) Plaintiff was given four weeks to show progress on taking
the polygraph, but he continued to refuse. (Undisp. Facts 73-74.)
In November 2015, Plaintiff was moved back to the Power to
Change group because Plaintiff’s treatment team determined he was
not ready to take the polygraph and because of “his related
distortions and resistance to accepting responsibility and feedback.”
(Undisp. Fact 77.) The Power to Change group addresses behaviors
that interfere with treatment. (Pl. Dep. 38.)

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Discussion
Plaintiff continues to try to make this case about challenging
the 2010 polygraph procedure and results. The Court remains of
the opinion that such a challenge is barred by the statute of
limitations. (11/18/13 Order; 1/31/2014 Order.) But, in any
event, Plaintiff states no federal claim arising from the 2010
polygraph, even if the challenge is timely. A polygraph test which
defines the term “sexually offended” to include non-criminal
manipulation into sexual activity is not a constitutional violation.
Plaintiff’s decision to withdraw from treatment because of his
disagreement with that definition does not give rise to a
constitutional violation.
Further, requiring Plaintiff to take polygraph tests as part of
his treatment is constitutional. Plaintiff assails the reliability and
use of polygraphs, but the United States Supreme Court and the
Seventh Circuit have held that polygraphs may be an appropriate
part of sex offender treatment. McKune v. Lile, 536 U.S. 24
(2017)(upholding sexual abuse treatment program which required
sexual history “regardless of whether such activities constitute
uncharged criminal offenses” and a “polygraph examination . . .
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used to verify the accuracy and completeness of the offender’s
sexual history”); Allison v. Snyder, 332 F.3d 1076 (7th Cir.
2003)(upholding treatment of sexually dangerous persons, which
included group therapy and polygraphs “to check whether
participants in this program are being candid.”); see also U.S. v.
Warren, 843 F.3d 275, 285 (7th Cir. 2016)(regardless of debate over
polygraph’s usefulness and reliability, “polygraph conditions have
been upheld by every circuit where the circumstances warranted it”
for supervised release conditions); Ambrose v. Godinez, 5110
Fed.Appx. 470 (7th Cir. 2013)(not published in Fed. Rep.)(sexually
dangerous person’s claim properly dismissed where claim was
essentially that he wanted “treatment without accepting
responsibility”); U.S. v. Sines, 303 F.3d 793 (7th Cir.
2002)(upholding supervised release condition requiring
participation in sex offender treatment program, which included
“periodic progress checks via polygraph testing”); Hargett v. Adams,
2005 WL 399300 **11, 19 (N.D. Ill. 2005)(not published in Federal
Reporter)(acknowledging debate on reliability and usefulness of
polygraph technique for phase II treatment for sexually violent
persons, but concluding that the technique was “well within the
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bounds of professional judgment.”); Walker v. Watters, 348
F.Supp.2d 1031 (W.D. Wis. 2004)(requiring polygraph in treatment
program for sex offender did not violate due process); Laxton v.
Watters, 348 F.Supp.2d 1024 (W.D. Wis. 2004)(same). Imposing
the polygraph requirement as part of Plaintiff’s treatment falls
within the acceptable bounds of professional judgment. See Sain v.
Wood, 512 F.3d 886, 894-95 (7th Cir. 2009)(Deliberate indifference
arises “if the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or
standards, as to demonstrate that the person responsible actually
did not base the decision on such a judgment.”)
The 2015 decision to move Plaintiff out of phase II and into the
Power to Change group when Plaintiff refused to take a polygraph
test was also within the acceptable bounds of professional
judgment. Plaintiff admitted that he would not move beyond his
complaints about the 2010 polygraph and would not take another
polygraph until the 2010 polygraph debate was resolved to his
satisfaction. The Power to Change group’s purpose is to work on
treatment barriers, such as Plaintiff’s inability to move beyond the
2010 polygraph. Plaintiff argues that he should be allowed to finish
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other aspects of the phase II treatment, but Plaintiff does not have a
constitutional right to dictate his treatment.
IT IS ORDERED:
1. Defendants’ motion for summary judgment is granted (d/e
103).
2. Plaintiff’s motion for status is denied as moot (d/e 116).
3. The clerk of the court is directed to enter judgment in favor of
Defendants and against Plaintiff. This case is terminated, with the
parties to bear their own costs. All deadlines and settings on the
Court’s calendar are vacated.
4. If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in
forma pauperis should identify the issues Plaintiff will present on
appeal. See Fed. R. App. P. 24(a)(1)(c).
ENTERED: July 11, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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