Mulder v. Schuyler County Sheriffs Police et al

Filing 60

OPINION entered by Judge Michael M. Mihm on 10/11/2016. IT IS ORDERED: 1. The motion for summary judgment by Defendants Ganz, Jumper, Louck, and Schroeder is denied (d/e 48 ). 2. This case is referred to the Magistrate Judge forsettlement discussion s. If a settlement is not reached, final pretrial and trial dates will be scheduled. 3. The clerk is directed to update the docket toreflect that Illinois Assistant Attorney General Darren Price represents Defendant Bert Dees. 4. The clerk is directed to notify the Magistrate Judge of the referral of this case for a settlement conference. See full written Opinion. (JS, ilcd)

E-FILED

Tuesday, 11 October, 2016 10:26:30 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHAEL MULDER,
Plaintiff,
v.
JAMES C. CLAYTON,1 et al.,
Defendants.

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14 -CV-3274

OPINION
MICHAEL M. MIHM, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center. He claims that Defendants placed
him at risk of a sexual assault or harassment through rooming
placements, refused to move him when he reported he was being
sexually assaulted and sexually harassed by roommates, and then
retaliated against him for reporting that assault and harassment.
There are eighteen defendants, falling into two camps: the
Illinois Department of Human Services employees (DHS defendants)
and the Liberty Healthcare employees (Liberty Defendants). Only
the Liberty Defendants have moved for summary judgment, the
motion now before the Court. The Court directed the DHS
The “Schuyler County Sheriff’s Police” was named as the lead defendant in the complaint, but
this defendant was dismissed on March 12, 2015.
1

Page 1 of 20

Defendants to file a summary judgment motion or to identify the
material factual disputes, but the DHS Defendants responded that
the record is not developed enough to do so (d/e 54).
After reviewing the parties’ submissions on summary
judgment, the Court concludes disputed material facts exist which
preclude summary judgment for the Liberty Defendants.
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). “In a § 1983 case, the plaintiff bears the burden of proof on
the constitutional deprivation that underlies the claim, and thus
must come forward with sufficient evidence to create genuine issues
of material fact to avoid summary judgment.” McAllister v. Price,
615 F.3d 877, 881 (7th Cir. 2010). At the summary judgment stage,
the evidence is viewed in the light most favorable to the nonmovant,
with material factual disputes resolved in the nonmovant's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine dispute of material fact exists when a reasonable juror
could find for the nonmovant. Id.
2

FACTS
These facts are set forth in the light most favorable to Plaintiff
for purposes of this order only.
Plaintiff has been detained at the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Act for over seven years, since May 2009. To be civilly committed
under this Act, a jury or judge must find beyond a reasonable doubt
that an individual is a “sexually violent person”—a person who “has
been convicted of a sexually violent offense, has been adjudicated
delinquent for a sexually violent offense, or has been found not
guilty of a sexually violent offense by reason of insanity and who is
dangerous because he or she suffers from a mental disorder that
makes it substantially probable that the person will engage in acts
of sexual violence.” 725 ILCS 207/35(d)(1); 725 ILCS 207/5(f).
Plaintiff’s clinical treatment team during the relevant time
included Defendant Ganz, Louck, and Shroeder. Defendant Ganz
was Plaintiff’s primary therapist; Defendant Louck was the team
leader of Plaintiff’s treatment team; and Defendant Shroeder was a
clinical therapist on Plaintiff’s treatment team. Defendant Jumper is
the Clinical Director, overseeing the clinical treatment and
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rehabilitation programs. These four defendants are employed by
Liberty Healthcare Corporation (Liberty Defendants) and are the only
defendants who filed a summary judgment motion.
In 2010, Plaintiff was roomed with resident Eric Smith, who
made sexual advances to Plaintiff at night while both of them were
locked in the room, including “rubbing [Plaintiff’s] legs,
propositioning [Plaintiff] for oral sex, grabbing [Plaintiff’s] butt, and .
. . continu[ing] to play with [Plaintiff’s] feet when they were hanging
off the top bunk . . . .” (Pl.’s Dep. p. 17.) Plaintiff reported the
problem to the clinical staff and to security and was removed from
the situation about one and ½ weeks later. (Pl.’s Dep. p. 20.) 2
Sometime in 2011 or the early part of 2012, Plaintiff was
roomed with resident Lawrence Hayes. According to Plaintiff, Hayes
“manipulated and forced [Plaintiff] into sexual contact with him—
which was anal—anal sex and oral sex.” (Pl.’s Dep. p. 74.) Hayes
manipulated Plaintiff with “trickery type comments like, ‘I won’t hurt
you. I’ll go easy on you.’” Id. Plaintiff asked Defendants Hankins
for a new room assignment but did not report the assault to
Hankins at this time because Plaintiff was scared. (Pl.’s Dep. p. 73Defendant Ganz was the only Liberty Defendant on Plaintiff’s treatment team during this
incident.
2

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74.) Plaintiff did not tell anyone about the assault until after
Plaintiff was moved to a different room. Several weeks after he was
moved out of the room, Plaintiff discussed the assault with his
clinical team, which included Defendant Ganz. (Pl.’s Dep. p. 72.)
Plaintiff was advised to talk about the incident in group therapy. Id.
In 2014, Plaintiff was once again roomed with resident Eric
Smith for a few weeks, and Smith again started making verbal
sexual advances. (Pl.’s Dep. pp. 21, 28, 31.) Plaintiff complained to
Defendant Hankins, who did not move Plaintiff, and also to
Defendant Ganz, who took no action. Plaintiff then filed a grievance
claiming Smith as an enemy and was moved out of the room. (Pl.’s
Dep. pp. 21-23, 32, 33.) By this time, resident Smith had also
requested a room change, accusing Plaintiff of threatening him.
(Pl.’s Dep. pp. 62-63.)
In the Fall of 2014, Plaintiff requested to room with resident
David Mackel. Plaintiff knew that Mackel was sexually active, but
Plaintiff and had Mackel agreed that, as a condition of rooming
together, Mackel would not attempt to engage in any sexual
activities with Plaintiff. Plaintiff believed Mackel’s promise because
Mackel was involved in a relationship with another resident at the
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time. (Pl.’s Dep. pp. 23-24, 94.) Unfortunately, Mackel did not keep
his promise. Mackel repeatedly masturbated at night in front of
Plaintiff, pressured Plaintiff for oral and anal sex, and once reached
down Plaintiff’s pants and grabbed Plaintiff’s testicles.
Plaintiff reported resident Mackel’s behavior to staff but no
action was taken. One day, Plaintiff had his room window covered
during the day in order to sleep, and Defendant Morton commented
loudly in front of everyone that Plaintiff would not need to sleep
during the day “if [Plaintiff] wasn’t up all night sucking dick.” (Pl.’s
Dep. pp. 24-27.)
Plaintiff continued to report resident Mackel’s behavior to staff
and his clinical treatment team, including Defendants Dougherty,
Hankins, Kindhart, Culhan, Morton, Teel, Thomas, Louck, Ganz,
and Shroeder, but Plaintiff was not moved from the room. (Pl.’s Dep.
pp. 2, 11, 12, 14, 29, 35, 91.) Defendant Ganz told Plaintiff to talk
about the incident in group therapy. (Pl.’s Dep. p. 80.) Defendant
Louck filled out an incident report regarding Plaintiff’s allegations
and sent an email to Defendant Jumper. (Louck Aff. para. 6.)3
Louck avers that the “standard protocol was followed regarding
3

The documents referred to in Defendant Louck’s affidavit are not a part of the record.

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[Plaintiff’s] report of the alleged assault” but does not set forth the
protocol. (Louck Aff. para. 28.)
After about two or three weeks of enduring Mackel’s advances,
Plaintiff refused to room with Mackel. Plaintiff was written a
disciplinary report for interfering with facility operations and was
moved to segregation. (Jumper Aff. para. 11.) At a disciplinary
committee hearing, Plaintiff told Defendants Jumper and Clark
about resident Mackel’s sexual harassment and sexual assault.
Jumper and Clark found Plaintiff guilty of interfering with facility
operations.4 (Jumper Aff. para. 36.) Defendant Jumper avers that
he believed that Plaintiff was trying to manipulate his rooming
assignment by making false accusations against resident Mackel.
(Jumper Aff. para. 12.) Plaintiff agrees that he has requested room
changes more than 20 times since 2009. (Undisp. Fact 33.) Plaintiff
also admitted in his deposition that Plaintiff had sexually assaulted
another roommate who is not a part of this case. (Pl.’s Dep. pp. 9293.) The list of residents with whom Plaintiff would refuse to room
“would be quite lengthy.” (Pl.’s Dep. p. 120.)

4

The documents relating to Plaintiff’s discipline are not in the record.

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While Plaintiff was in segregation, resident Morales slid a note
under Plaintiff’s door offering to pay Plaintiff money if Plaintiff would
allow Morales to sexually abuse Plaintiff. Plaintiff turned the note
over to security and told Defendants Rose and Pennock but nothing
was done to Plaintiff’s knowledge. (Compl. para. 10; Pl.’s Dep. p.
13.) Plaintiff also asked Defendants Rose, Pennock, Parsons, and
Billingsley and several other Defendants to contact police to report
Mackel’s sexual assault or to allow Plaintiff to do so, but Plaintiff
says those requests were denied. (Pl.’s Dep. p. 9, 13). Plaintiff
asserts that he could not call the police because the police were not
on Plaintiff’s authorized caller list. Plaintiff also asserts that he had
no means of obtaining the address for the police.
After Plaintiff was removed from Mackel’s room, Defendant
Clayton (an internal investigator) interviewed Plaintiff about
Plaintiff’s claim that resident Mackel had sexually assaulted
Plaintiff. According to Plaintiff, Defendant Clayton threatened to
send Plaintiff to prison for making false charges if Plaintiff tried to
report the assault to police. (Compl. para. 12.) Clayton threatened
to arrange for Plaintiff’s transfer to the Stateville “E house” prison

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with the “Kings” so that Plaintiff would not come back alive. (Pl.’s
Dep. pp. 9, 10, 126.)
Mental health progress notes for resident Mackel support an
inference that, before Mackel’s placement with Plaintiff, Mackel had
a documented history of “sexual propositioning/interactions with
other residents,” sexually acting out with his roommate, “sexual talk
and sexually proposition[ing] others on a regular basis,” “crossing
physical boundaries with others,” and sexual grooming of at least
one roommate. (d/e 58-4, pp. 1-10.)
Plaintiff contends that resident Mackel’s assault and
Defendants’ response have caused a return of his symptoms of posttraumatic stress disorder (PTSD)—“nightmares, extreme paranoia,
shakes, bouts of anger, night terrors.” (Pl.’s Dep. p. 100.) He alleges
in his complaint that he asked Defendants Ganz, Louck, and
Schroeder for trauma or abuse treatment because he “could not
sleep, had difficulty doing everything and my hands had not stopped
shaking for days.” (Compl. para. 16.) He alleges that Dr. Schroeder
told Plaintiff that no group treatment for trauma or abuse was
available and advised Plaintiff to “‘burn off that aggression’” because
the aggression was the cause of Plaintiff’s shaking hands. Id.
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Plaintiff contends that he was diagnosed with PTSD prior to his
detention, but he offers no records to corroborate that diagnosis.
The Liberty Defendants aver that they are unaware of any diagnosis
of PTSD, did not observe Plaintiff exhibit any signs of PTSD, and are
of the opinion that Plaintiff does not have PTSD. The Liberty
Defendants also aver that the sex offender treatment provided is
designed to incorporate treatment for the kinds of symptoms
Plaintiff is having. Defendant Jumper avers that the sex offender
therapy provided “includes a component for trauma treatment
associated with [residents’] sexual abuse history” and a “component
to address the residents’ personal issues because most, if not all,
residents have suffered some sort of abuse or trauma themselves.”
(Jumper Aff. para. 25; Louck Aff. paras. 16, 17 (“Individualized
treatment is provided as part of his sex offender treatment and
trauma can be addressed within the context of the greater sex
offender treatment program.”) Plaintiff did at some point talk to a
psychiatrist on site, Dr. Tinwalla, who told Plaintiff to talk about the
issues in group therapy and to talk to Dr. Tinwalla again if
necessary. (Pl.’s Dep. p. 103.)

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ANALYSIS
The Court identified the following constitutional claims from
Plaintiff’s complaint: (1) deliberate indifference to a substantial risk
of serious harm; (2) deliberate indifference to a serious need for
mental health treatment; and (3) retaliation for Plaintiff’s exercise of
his First Amendment rights. (3/12/15 Order.)
I. The statute of limitations bars Plaintiff’s failure to
protect claims regarding the 2010 assault by resident Smith and
the 2012 assault by resident Hayes, but Plaintiff’s other claims
are not barred. The 2010 and 2012 assaults may still be
admissible for other purposes.
A two-year statute of limitations governs federal civil rights
claims in Illinois. Bryant v. City of Chicago, 746 F.3d 239, 241 (7th
Cir. 2014)(In Illinois, section 1983 actions are subject to the twoyear statute of limitations in 735 ILCS 5/13-202). A failure-toprotect claim based on the 2010 is clearly barred, since Plaintiff did
not file this case until September 2014. Plaintiff also seems to
concede that a failure-to-protect claim based on the 2012 assault is
barred. (Pl.’s Resp. p. 12.)
Plaintiff argues in his response that, though the Hayes’
incident occurred more than two years before he filed this case, the
incident is still relevant. Id. The Court agrees. Both the 2010 and
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the 2012 incidents could be relevant to the deliberate indifference
inquiry. For example, Plaintiff told his treatment team about the
2010 incident, which is evidence of Defendants’ knowledge of that
incident. Plaintiff was roomed with Smith again in 2014, and,
according to Plaintiff, the Liberty Defendants would have had to
approve this placement. The Liberty Defendants also knew about
the Hayes incident, according to Plaintiff, which could be relevant to
show Defendants’ knowledge of Plaintiff’s mental health needs.
II. A rational juror could find that the Liberty Defendants
were deliberately indifferent to a substantial risk of serious
harm to Plaintiff from residents Smith and Mackel.
As a civil detainee, Plaintiff’s constitutional claims stem from
the Fourteenth Amendment, but the legal standard is the same as
the Eighth Amendment standard: deliberate indifference to a
substantial risk of serious harm. Brown v. Budz, 398 F.3d 904,
909-916 (7th Cir. 2005)(detainee awaiting civil commitment under
Sexually Violent Persons Act). The Liberty Defendants do not argue
that the sexual assault and sexual harassment Plaintiff endured was
not a serious harm. They instead focus on the argument that they

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were not deliberately indifferent.5 Deliberate indifference is the
disregard of a known and excessive risk. Budz, 398 F.3d at 913.
The Liberty Defendants argue that they had no knowledge of a
substantial risk of harm to Plaintiff from his roommates. However,
Plaintiff testified that he repeatedly informed Defendants of Mackel’s
sexual assault and sexual harassment and they did nothing except
advise Plaintiff to talk about the issue in group therapy. Defendant
Ganz notified Defendant Jumper of Plaintiff’s allegations against
resident Mackel before the behavior committee meeting, and
Defendant Jumper did nothing. Plaintiff also reported Eric Smith’s
sexual assault in 2010, yet Plaintiff was again roomed with Smith in
2014.
The Liberty Defendants argue that they had nothing to do with
Plaintiff’s placement with Smith the second time or placement with
Mackel in 2014, but they do not address Plaintiff’s contention that

Reasonable minds might debate whether the subjective element is or is becoming something
less than deliberate indifference, but at this point the difference is immaterial because Plaintiff’s
claims survive even under the deliberate indifference standard. In Kingsley v. Hendrickson, 135
S.Ct. 2466, 2473 (2015), the Supreme Court held that a defendant’s subjective state of mind in
a pretrial detainee’s excessive force claim was relevant only to the extent that the defendant’s
actions were “purposeful or knowing.” Id. In Smith v. Dart, 803 F.3d 304, n. 2 (7th Cir. 2015), a
pretrial detainee conditions of confinement claim, the Seventh Circuit cited Kingsley for the
proposition that the subjective element required “a purposeful, a knowing, or possibly a reckless
state of mind.” The Seventh Circuit has recently remarked on the “shifting sands of present-day
case authority” for the constitutional claims of detainees. Werner v. Wall, --- F.3d ---, 2016 WL
4555610 (7th Cir. 2016).
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rooming assignments are subject to approval by a resident’s
treatment team. Resident Mackel’s progress notes allow an
inference that the treatment team makes recommendations or is
otherwise involved in rooming decisions. (d/e 58-4, p. 8.) A juror
could find that the Liberty Defendants knew about Mackel’s history
and Plaintiff’s vulnerability to sexual assault and harassment (if
Plaintiff is believed), and did nothing to stop the rooming placements
with Mackel or Smith or to move Plaintiff out of those situations
after Plaintiff informed them of the problems. A jury could also find
for Defendants, but that only demonstrates that a jury trial is
necessary.
III. A rational juror could find that the Liberty Defendants
were deliberately indifferent to Plaintiff’s serious mental health
needs.
Deliberate indifference to a detainee’s serious mental health
needs violates the detainee’s Fourteenth Amendment rights. Smego
v. Mitchell, 723 F.3d 752, 756 (7th Cir. 2013)(dental care); Smego v.
Payne, 469 Fed.Appx. 470 (7th Cir.2012)(nonprecedential)
(defendants did not dispute that sexually violent person’s mental
disorder constituted a serious medical need). With regard to
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Plaintiff’s mental health treatment, the exercise of professional
judgment within acceptable bounds does not arise to deliberate
indifference. Youngberg v. Romeo, 457 U.S. 307, 323
(1982)(decisions by professionals about mental health facility’s
operations afforded deference and violate the Constitution only if
professional judgment not exercised); Sain v. Wood, 512 F.3d 886,
893 (7th Cir. 2008)(Deliberate indifference can be inferred if a
medical professional's decisions are "'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.'")(quoted cite omitted).
Looking at the evidence in Plaintiff’s favor, a jury could find
that the Liberty Defendants did not believe, did not take seriously,
or simply did not care about Plaintiff’s report of sexual assaults by
Smith, Hayes, and Mackel or Plaintiff’s pleas for what Plaintiff
believed to be PTSD—nightmares, sleep disruption, shaking hands,
and paranoia. A rational juror could find that their response to
Plaintiff’s claims and their refusal to offer Plaintiff additional
counseling or treatment was not based on a sincere exercise of
professional judgment. See Hughes v. Scott, 816 F.3d 955 (“staff of
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an institution that houses and treats persons suffering from mental
disorders should be held to understand that they are dealing with
psychologically impaired persons.”); Smego v. Payne, 469 Fed.Appx.
470 (7th Cir. 2012)(whether primary therapist’s refusal to transfer
resident to different therapy group was disputed question of fact
where resident claimed hostility and a sexual assault by another
member of the group); Petties v. Carter, --- F.3d ---, 2016 WL
4631679 (7th Cir. 2016)(“To determine if a prison official acted with
deliberate indifference, we look into his or her subjective state of
mind.”) Summary judgment must be denied because deliberate
indifference in this context of this claim turns largely on the
credibility of the parties.
IV. Plaintiff’s retaliation claims against the Liberty
Defendants are unclear but cannot be dismissed on this record.
To make out a prima facie First Amendment retaliation claim,
Plaintiff must have evidence that “(1) he engaged in activity
protected by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future; and (3) the
First Amendment activity was ‘at least a motivating factor’ in the
Defendants' decision to take the retaliatory action.” Gomez v.
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Randle, 680 F.3d 859, 866 (7th Cir. 2012)(quoted cite omitted). If
Plaintiff makes this prima facie showing, Defendants must show
that the adverse action would have occurred anyway. Mays v.
Springborn, 719 F.3d 631, 633 (7th Cir. 2013). If Defendants meet
this burden, then Plaintiff must show that Defendants’ proffered
reason is pretextual, that is, a lie. Thayer v. Chiczewski, 705 F.3d
237, 250-51 (7th Cir. 2012).
Plaintiff wrote letters to Governor Rauner and Senator Durbin
about the incidents. He also reported the sexual assaults and
sexual harassment and asked for help with his psychological issues.
All these activities are protected First Amendment activities.
The difficulty is identifying the evidence supporting an
inference of retaliatory motive. In his deposition, Plaintiff asserts
that the Liberty Defendants retaliated against him by not allowing
Plaintiff to call or contact police, not reporting Plaintiff’s allegations,
“covering up” Plaintiff’s allegations, and not providing adequate
mental health treatment. (Pl.’s Dep. p. 106-109.) Plaintiff’s
retaliation count in his complaint focuses on Defendant Clayton
(Compl., Count 3), not the Liberty Defendants. Plaintiff’s response
to the summary judgment motion characterizes all of the Liberty
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Defendants’ actions and inactions as motivated by retaliation for
Plaintiff’s complaints about the sexual assault and sexual
harassment.
Given the subjective determination required in the retaliation
claim, the Court cannot confidently grant summary judgment to the
Liberty Defendants. As with Plaintiff’s other claims, the Liberty
Defendants’ subjective motivation is a disputed fact for resolution by
a jury.
V. The Liberty Defendants are not entitled to qualified
immunity.
The Liberty Defendants claim qualified immunity, but they do
not mention the Seventh Circuit cases which appear to hold or
strongly indicate that qualified immunity is not available for private
contractors. In Zaya v. Sood, --- F.3d ---, 2016 WL 4621045 *4 (7th
Cir. 2016), the Seventh Circuit cited those decisions, stating:
The Supreme Court has held that employees of privately
operated prisons may not assert a qualified-immunity
defense. See Richardson v. McKnight, 521 U.S. 399, 412
(1997). We have construed that holding to extend to
employees of private corporations that contract with the
state to provide medical care for prison inmates. See
Currie v. Chhabra, 728 F.3d 626, 631–32 (7th Cir. 2013);
see also Shields v. Ill. Dep't of Corrs., 746 F.3d 782, 794
n.3 (7th Cir. 2014). As an employee of Wexford, a private
corporation that contracts with the Illinois Department of
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Corrections, Dr. Sood asks us to reconsider our earlier
decisions.”)
The Seventh Circuit then found that reconsideration of those
decisions was not necessary because qualified immunity would not
be granted regardless. Id. The Liberty Defendants do not discuss
these decisions or explain why these cases are not controlling.
IT IS ORDERED:
1.

The motion for summary judgment by Defendants Ganz,

Jumper, Louck, and Schroeder is denied (d/e 48).
2.

This case is referred to the Magistrate Judge for

settlement discussions. If a settlement is not reached, final pretrial
and trial dates will be scheduled.
3.

The clerk is directed to update the docket to

reflect that Illinois Assistant Attorney General Darren Price
represents Defendant Bert Dees.
4.

The clerk is directed to notify the Magistrate

Judge of the referral of this case for a settlement
conference.
ENTER: 10/11/2016
FOR THE COURT:
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s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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