Smego v. Meza et al

Filing 6

MERIT REVIEW OPINION & ORDER entered by Judge Joe Billy McDade on 9/24/2015: IT IS ORDERED: 1) Plaintiff's complaint is dismissed for failure to state a claim. 2) By October 19, 2015, Plaintiff may file an amended complaint regarding the sexual assaults or other assaults he personally suffered. The amended complaint should set forth when and where the assaults occurred, how Plaintiff was assaulted, who assaulted Plaintiff, and whether Plaintiff made any attempts to inform Defendants of the risk of an impending assault. 3) Failure to file an amended complaint will result in the dismissal of this case, without prejudice. (SEE FULL WRITTEN ORDER & OPINION)(JRK, ilcd)

E-FILED

Thursday, 24 September, 2015 12:36:20 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
RICHARD M. SMEGO,
Plaintiff,
v.
RICHARDO MEZA, et al.,
Defendants.

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15-CV-3159

MERIT REVIEW OPINION
JOE BILLY MCDADE, 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
state a claim, even if part of the filing fee is 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 allegations state a federal claim for relief.
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. 2103). 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)(citation
omitted).
Allegations
Plaintiff is detained in the Rushville Treatment and Detention
Center (“Rushville”) pursuant to the Illinois Sexually Violent
Persons Act. Plaintiff alleges that Rushville’s failure to implement
procedures for reporting and investigating sexual assaults within
the facility creates an environment which places Rushville residents
at a substantial risk of serious harm from assaults by other
residents. Plaintiff allegedly hears accounts of these sexual
assaults in group therapy, when other residents describe sexual
assaults that they have suffered within the facility at the hands of
other residents. The therapists allegedly refuse to take any action
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after hearing these accounts. Plaintiff alleges that there is no
reliable way for a resident to report a sexual assault and have the
report taken seriously, without repercussion. Plaintiff alleges that
he himself has been subjected to physical and sexual assaults on
“more than one date.” (Complaint, para. 8.) He alleges that his
attempts to use the grievance procedure to redress these assaults
were either futile or led to retaliation.
Unable to obtain results internally, Plaintiff wrote to the Office
of the Illinois Inspector General about this issue. Plaintiff detailed
his own problems with being assaulted as well the experiences of
other residents. Plaintiff asked the Inspector General to
independently investigate and also asked that Rushville not be
involved in conducting the investigation due to bias and Plaintiff’s
fear of retaliation.
Instead of investigating Plaintiff’s complaints, the Office of
Inspector General forwarded the complaints to Rushville’s internal
investigator, Defendant Clayton. Clayton allegedly then interviewed
one of the residents who had given an affidavit to support Plaintiff’s
complaints to the Office of Inspector General. Defendant Clayton
allegedly intimidated and discouraged this resident from further
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supporting Plaintiff’s efforts. Because of this intimidation, Plaintiff
has difficulty obtaining affidavits or other evidence from any
residents to support Plaintiff’s quest to improve conditions at
Rushville.
Analysis
Plaintiff alleges that Rushville’s failure to record sexual
assaults and failure to have a meaningful, reliable procedure for
reporting and investigating sexual assaults violates his due process
and equal protection rights. He contends that the Illinois
Department of Corrections (“IDOC”) has such protections in place
and Rushville should, too.
The reason for the difference in approach between Rushville
and the IDOC may be because prisons are subject to the Prison
Rape Elimination Act, 42 U.S.C. § 15601, et seq., a federal law with
the goal of reducing sexual assaults in prisons. The law and its
regulations impose reporting, training, and other requirements on
prisons. However, facilities like Rushville do not appear to be
covered by this law. 42 U.S.C. § 15609 (definitions). Courts cannot
rewrite the law to cover facilities like Rushville, only the legislators
can.
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In any event, whatever the reason for the difference between
Rushville’s and IDOC’s handling of sexual assaults, the
Constitution does not require that different state agencies operate
their confinement facilities identically. Plaintiff is not similarly
situated to an IDOC inmate for the simple reason that Plaintiff is
not confined in an IDOC facility. See Saiger v. City of Chicago, 37
F.Supp.3d 979, 982 (N.D. Ill. 2014)(To be similarly situated for an
equal protection claim, “a plaintiff and his comparators must be
directly comparable in all material respects.”) Rushville is operated
by the Illinois Department of Human Services, not the Illinois
Department of Corrections.
As to Plaintiff’s due process claim, Rushville has a
constitutional duty to protect Plaintiff from a serious risk of
substantial harm, but the risk must be concrete and specific, not
general or vague. See Brown v. Budz, 398 F.3d 904, 909, 913 (7th
Cir.2005)(generalized risk of violence is not enough to state a failure
to protect claim). Plaintiff does not explain when he was assaulted,
the circumstances of those assaults, or what Defendants knew
about the specific risk of the assaults to Plaintiff before those

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assaults occurred. Id. Additionally, Plaintiff cannot pursue claims
on behalf of other inmates who have been assaulted.
Plaintiff also has a constitutional right to adequate treatment
for his mental illness, which means a treatment approach within
the acceptable range of professional judgment. See Youngberg v.
Romeo, 457 U.S. 307, 323 (1982)(decisions by professionals
working at a mental health institution are afforded deference; their
decisions violate the Constitution only if they failed to exercise
professional judgment). Yet, again, Plaintiff does not give any facts
about the assaults he suffered or how those assaults were caused
by any action or failure to act by mental health professionals.
Nor is a federal claim stated against the Executive Inspector
General or the Deputy Inspector (Defendants Meza and Kwateng) for
failing to take action on Plaintiff’s complaints other than to forward
those complaints to Defendant Clayton, the internal investigator at
Rushville. The Inspector General has no affirmative constitutional
duty to investigate or take actions on complaints. See Whitlock v.
Brueggemann, 682 F.3d 567, 589 (7th Cir. 2012)("There is no
affirmative duty on police to investigate.").

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Lastly, no retaliation claim is stated against Defendant
Clayton, who purportedly made intimidating statements to a
resident who had provided an affidavit to Plaintiff. Plaintiff’s ability
to pursue his own challenges to the conditions at Rushville remains
intact. Further, oral intimidation and threats are not sufficiently
adverse to state a retaliation claim, even if those words had been
spoken directly to Plaintiff. See Antoine v. Uchtman, 2008 WL
1875948 *2 (7th Cir. 2008)(not published in Federal Reporter)(oral
threats did not state retaliation claim).
Conclusion
In sum, Plaintiff’s present allegations fail to state a federal
claim for relief. The only possible federal claim the Court sees may
be a claim arising from the alleged assaults on Plaintiff, but the
present allegations are too vague and conclusory. Plaintiff will be
given an opportunity to file an amended complaint about the alleged
assaults.
IT IS ORDERED:
1) Plaintiff's complaint is dismissed for failure to state a claim.
2) By October 19, 2015, Plaintiff may file an amended
complaint regarding the sexual assaults or other assaults
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he personally suffered. The amended complaint should set
forth when and where the assaults occurred, how Plaintiff
was assaulted, who assaulted Plaintiff, and whether Plaintiff
made any attempts to inform Defendants of the risk of an
impending assault.
3) Failure to file an amended complaint will result in the
dismissal of this case, without prejudice.
ENTERED: 9/24/2015
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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