Smego v. Meza et al

Filing 8

OPINION entered by Judge Joe Billy McDade on 02/01/2016. IT IS ORDERED: 1) Plaintiff's motion for reconsideration is denied (7). 2) By February 15, 2016, Plaintiff may file an amended complaint regarding the sexual assaults or other assaults he personally suffered in the Rushville Treatment and Detention Center. 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 animpending assault. 3) Failure to file an amended complaint will result in thedismissal of this case, without prejudice. 4) Plaintiff's petition to proceed in forma pauperis is denied (3). The Court will revive Plaintiff's in forma pauperis petition if Plaintiff files an amended complaint in accordance with this order. 5) Plaintiff's motion for status (5) is denied as moot. See full written Opinion.(JS, ilcd)

E-FILED

Monday, 01 February, 2016 03:00:43 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

OPINION
JOE BILLY MCDADE, U.S. District Judge:
On September 24, 2015, the Court dismissed Plaintiff’s
complaint without prejudice to filing an amended complaint
regarding the alleged sexual assaults or other assaults he
personally suffered as a resident in the Rushville Treatment and
Detention Center. The Court assumes familiarity with that order.
Plaintiff has moved to reconsider the Court’s determination in
that order that the Rushville Treatment and Detention Center is not
subject to the Prison Rape Elimination Act (“PREA”), 42 U.S.C. §
15601, et seq., a federal law with the goal of reducing sexual
assaults in prisons. See 42 U.S.C. § 15609. Plaintiff asserts that
this Act was amended in 2006 by the Violence Against Women and
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Department of Justice Reauthorization Act of 2005 to cover facilities
like Rushville, a detention facility for persons civilly committed
under Illinois law as sexually violent persons. The statutes he cites,
though, are federal criminal definitions of sexual misconduct and
refer to persons “held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal department or
agency.” See 18 U.S.C. §§ 2241-2244. Plaintiff is not being held in
a facility pursuant to an agreement with a federal agency. He is
detained pursuant to state law in a facility operated by a state
agency. The debate is immaterial in any event. The Court only
cited the PREA as a possible explanation for the difference between
the way IDOC and Rushville handle the reporting and investigation
of sexual assaults within their facilities. The PREA does not create
a private right of action, so Plaintiff could not move to enforce the
Act even if he were in an IDOC prison. See Ross v. Gossett, 2016
WL 335991(S.D. Ill. 2016)(holding no private right of action under
PREA).
Plaintiff further asserts that he does have an equal protection
claim based on the differences in how the IDOC and Rushville
handle reports of sexual assaults within their facilities. He alleges
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that his confinement is similar, if not identical, to being in an IDOC
prison. Yet, as the Court stated in its prior order, from an equal
protection standpoint, Rushville residents are not similarly situated
to IDOC prisoners because the facilities are operated by different
state agencies.
IT IS ORDERED:
1) Plaintiff's motion for reconsideration is denied (7).
2) By February 15, 2016, Plaintiff may file an amended
complaint regarding the sexual assaults or other assaults
he personally suffered in the Rushville Treatment and
Detention Center. 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.
4) Plaintiff’s petition to proceed in forma pauperis is denied (3).
The Court will revive Plaintiff’s in forma pauperis petition if

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Plaintiff files an amended complaint in accordance with this
order.
5) Plaintiff’s motion for status (5) is denied as moot.
ENTERED: 02/01/2016
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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