Walker v. Pennock et al

Filing 18

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 1/31/2014. Pursuant to a review of the Complaint, the Court finds that Plaintiff states a constitutional claim arising from the alleged refusal to allow Plaintiff to participate in sex off ender treatment without completing prerequisites such as a polygraph test and certain programs. Dr. A. Louck is added as as Defendant. This claim proceeds against Defendants Jumper, Louck, Roth and Groot. Defendants Liberty Healthcare Corporation; Julie Oberhausen; Chad Oberhausen; Bobby Leebold; Jessica Tucker; Sandra Simpson; Thomas Ivey and Larry Phillips are dismissed.(MAS, ilcd)

E-FILED

Friday, 31 January, 2014 05:26:02 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

MERIT REVIEW OPINION
On November 18, 2013, the Court dismissed Plaintiff’s
complaint because Plaintiff failed to state a claim and because his
claims were barred by the statute of limitations. (d/e 14.) Plaintiff
was given leave to file an amended complaint if he is currently being
denied sex offender treatment.
Plaintiff has filed a second amended complaint alleging that
Dr. Louck is conditioning Plaintiff’s participation in sex offender
treatment on passing a polygraph examination. The subject of the
polygraph examination will be the same subject explored in an

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allegedly improper and false polygraph conducted in 2010,
which was allegedly done to sabotage Plaintiff’s efforts to obtain
release. According to Plaintiff, the Judge in Plaintiff’s state court
commitment proceedings ruled that the 2010 polygraph results
were not admissible in those proceedings. Plaintiff maintains that
conditioning his treatment on passing a new polygraph test about
the same subject violates the state court order and violates
Plaintiff’s constitutional right to treatment for his mental disorder.
Dr. Louck has also allegedly conditioned Plaintiff’s treatment in sex
offender programs on first completing ancillary programs as a way
of stalling Plaintiff’s treatment progress.
Plaintiff states an arguable constitutional claim that he is
being denied treatment for his serious mental disorder. Deference
must be given to the mental health professionals, but at this point
not enough information is in the record to determine whether Dr.
Louck’s decision is an exercise of professional judgment or a
substantial departure therefrom. Sain v. Wood, 512 F.3d 886, 89495 (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
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that the person responsible actually did not base the decision on
such a judgment.”)
However, this claim is stated only against the persons who are
currently responsible for Plaintiff’s mental health treatment. Of the
Defendants named, only Defendants Jumper, Groot, and Roth are
current employees who might be personally responsible for
Plaintiff’s mental health treatment decisions. Though Plaintiff does
not name Dr. Louck as a Defendant, most of the allegations about
Plaintiff’s present treatment are against Dr. Louck. Dr. Louck will
therefore be added as a Defendant. As for Liberty Healthcare
Corporation, no plausible inference arises from the factual
allegations that Dr. Louck's requirements are attributable to a
corporate policy. Monell v. New York City Dep't of Soc. Servs., 436
U.S. 658, 691-92 (1978)(discussing standard for municipal liability
for constitutional violations); Iskander v. Village of Forest Park, 690
F.2d 126, 128 (7th Cir. 1982)(no 42 U.S.C. § 1983 respondeat
superior liability for municipality or private corporation);.
Plaintiff asks for reconsideration of the Court’s conclusion that
constitutional claims arising from the 2010 polygraph are barred by
the statute of limitations. He argues that the injuries from that
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polygraph are continuing. However, the completion of the violation,
not the end of the injury, determines when a cause of action
accrues. See Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).
The Court is still of the opinion that Plaintiff’s claims arising from
alleged misconduct which occurred in 2010 are untimely.
IT IS ORDERED:
1.

Dr. A. Louck is added as a Defendant.

2.

Pursuant to a review of the Complaint, the Court finds

that Plaintiff states a constitutional claim arising from the alleged
refusal to allow Plaintiff to participate in sex offender treatment
without completing prerequisites such as a polygraph test and
certain programs. This claim is stated against the following
Defendants: Jumper, Louck, Roth, and Groot. 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.
3.

Defendants Liberty Healthcare Corporation, Julie

Oberhausen, Chad Oberhausen, Bobby Leebold, Jessica Tucker,
Sandra Simpson, Thomas Ivey, and Larry Phillips are dismissed.
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4.

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.
5.

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.
6.

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
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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.
7.

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.
8.

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.
9.

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.

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10. 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.
11.

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).
12. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
13. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
14. The Clerk is directed to terminate Defendants Julie
Oberhausen, Chad Oberhausen, Bobby Leebold, Jessica Tucker,
Sandra Simpson, Thomas Ivey, and Larry Phillips.
15. The Clerk is directed to add Dr. A. Louck as a Defendant.
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ENTERED:

January 31, 2014

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

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