Mulder v. Schuyler County Sheriffs Police et al

Filing 8

MERIT REVIEW OPINION entered by Judge Michael M. Mihm on 03/12/2015. IT IS ORDERED: Plaintiff's petition to proceed in forma pauperis is granted (3).Plaintiff's motion for status is denied as moot (6). The Clerk is directed to enter the sta ndard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Defendant "Schuyler County Sheriffs Police" is dismissed and terminated. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. See full written Order.(JS, ilcd)

E-FILED

Thursday, 12 March, 2015 01:59:26 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL MULDER,
Plaintiff,
v.
SCHUYLER COUNTY
SHERIFF, et al.,
Defendants.

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14-CV-3274

MERIT REVIEW OPINION
Plaintiff is detained for treatment in the Rushville Treatment
and Detention Center pursuant to the Illinois Sexually Violent
Persons Act. He 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
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
forma pauperis only if the complaint states a federal claim.
In reviewing the complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
ALLEGATIONS
Plaintiff is allegedly “one of the smaller residents at the
facility,” which, liberally construing his allegations, makes him
more vulnerable to sexual harassment and assault by other
detainees at the facility.
Plaintiff alleges that he has been forced to room with “other
[sexually violent persons who] have all been diagnosed to lack
volitional control and be predisposed to commit acts of violence and
sexual violence.” (Complaint, p. 4.) Plaintiff alleges that he has
been sexually assaulted by two different roommates. When resident
“E. Smith” roomed with Plaintiff at the beginning of this year, Smith
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allegedly made sexual advances and sexually touched Plaintiff.
After Plaintiff complained, Plaintiff was roomed with resident David
Mackel, who also made sexual advances to Plaintiff, grabbed
Plaintiff’s genitals, and “tr[ied] to force [Plaintiff] into more and more
sexual contacts.” (Complaint p. 6.) One day in August, 2014,
Defendant Morton loudly told Plaintiff in front of the entire housing
unit, “If you were not up all night sucking dick, you wouldn’t be so
tired now.” (Complaint p. 5.) Morton’s comment allegedly
perpetuated and encouraged the continued sexual harassment of
Plaintiff by resident Mackel and other residents on the unit.
Plaintiff told Defendants Ganz, Schroeder, and Louck about
Defendant Morton’s comment, but nothing was done.
Plaintiff complained to Defendants Clayton, Hankins,
Pennock, Kulhan, Dougherty, Parsons, Rose, Billingsley, Kindhart,
Teel, Thomas, Louck, Morton, Schroeder, Ganz, Jumper, Clark, and
Deeds about resident Mackel’s abuse and harassment. None of
these Defendants did anything until August 22, 2014, when
Plaintiff was moved to a segregation cell called “special
management.” While Plaintiff was in segregation, resident Morales

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slipped a note under Plaintiff’s door offering Plaintiff cash in return
for sexually abusing Plaintiff. Plaintiff turned the note into security.
Defendant Clayton, who was supposed to be investigating
Plaintiff’s complaints about the sexual harassment, instead
allegedly threatened to have Plaintiff put in jail on false charges if
Plaintiff tried to press criminal charges against resident Mackel.
Clayton also allegedly told Plaintiff that Plaintiff deserved what he
got because Plaintiff is a “‘faggot.’” (Complaint p. 7.)
As a result of the constant sexual harassment, Plaintiff
allegedly suffers from post-traumatic stress disorder—including the
inability to function or sleep and constant hand-shaking for days.
Defendants Ganz, Schroeder, Louck, and Jumper have refused to
provide Plaintiff any mental health treatment for Plaintiff’s posttraumatic stress disorder, telling Plaintiff that such treatment is not
offered at the facility.
ANALYSIS
Plaintiff has no constitutional right to have a single room or to
room with a resident of Plaintiff’s choosing. However, Plaintiff does
have a constitutional right to be protected from a substantial risk of
serious harm. Brown v. Budz, 398 F.3d 904, 909, 913 (7th
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Cir.2005). He also has a constitutional right to adequate treatment
of his serious mental health needs and to be free from retaliation for
exercising his First Amendment rights. Sain v. Wood, 512 F.3d
886, 893 (7th Cir. 2008); Watkins v. Kasper, 599 F.3d 791, 798 (7th
Cir. 2010).
Verbal harassment alone does not generally present a
substantial risk of serious harm, but here the harassment was
allegedly so pervasive and severe that Plaintiff developed posttraumatic stress syndrome, and Plaintiff also allegedly was
subjected to unwanted sexual touching. At this stage, the Court
cannot rule out a constitutional claim for deliberate indifference to
a substantial risk of serious harm and deliberate indifference to
Plaintiff’s serious need for mental health treatment. A First
Amendment claim for retaliation for Plaintiff’s complaints about the
sexual harassment also cannot be ruled out.
A further developed record may show that not all of the named
Defendants were personally responsible for the alleged
constitutional violations, but that determination would be
premature.

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However, the Schuyler County Sheriff’s Office will be
dismissed as a Defendant because the Sheriff and Schuyler County
do not operate the Rushville Treatment and Detention Center.
Defendant Clayton’s alleged threat to have the Sheriff put Plaintiff
in jail did not come to fruition, and the Sheriff is not liable for
Clayton’s alleged misconduct.
IT IS ORDERED:
1.

Plaintiff's petition to proceed in forma pauperis is granted

(3). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states the following constitutional claims: 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.
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.
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
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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.
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.
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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
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

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or phone number will result in dismissal of this lawsuit, with
prejudice.
9.

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).
10. Plaintiff’s petition to proceed in forma pauperis is
granted (3).
11. Plaintiff’s motion for status is denied as moot (6).
12. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
13. Defendant “Schuyler County Sheriffs Police” is
dismissed and terminated.
14. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: March 12, 2015
FOR THE COURT:
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s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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