Shanklin v. Dimas et al

Filing 10

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 09/20/2016.1.Pursuant to a review of the amended complaint, the Court finds that Plaintiff states a claim that his mental health treatment is constitutionally inadequate. This case proceeds solely on this claim at this point. 2. Plaintiffs state law claim for the intentional infliction of emotional distress is dismissed, without prejudice to amendment. 3. Plaintiffs breach of contract claim, to the extent he pursues the claim, is dismis sed, without prejudice to amendment. 4. This case is now in the process of service. 5. The Court will attempt service on Defendants by sending each Defendant a waiver of service. 6. With respect to a Defendant who no longer works at the address prov ided 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. 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. 8. Once counsel has appeared for a Defendant, Plaintiff need not send copies of h is filings to that Defendant or to that Defendant's counsel. 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. 10. Pl aintiff 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, w ith 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 Defend ant 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 (SEE WRITTEN ORDER). (SKN, ilcd)

E-FILED

Tuesday, 20 September, 2016 11:06:22 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
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Plaintiff,
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v.
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JAMES T. DIMAS, et al.
)
Defendants. )
REGINALD SHANKLIN,

16-4144

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently civilly detained at
Rushville Treatment and Detention Facility, brings the present
lawsuit pursuant to 42 U.S.C. § 1983 alleging inadequate mental
health treatment and a state law claim for intentional infliction of
emotional distress. The matter comes before this Court for merit
review under 28 U.S.C. §1915A. In reviewing the complaint, the
Court takes all 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

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plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir.
2013) (internal citation omitted).
Plaintiff alleges that the mental health treatment he receives
offers no realistic opportunity for release. In particular, he alleges
that he receives less than an hour of treatment per week and that
completing the entire treatment program will allegedly take 3,000
hours. Plaintiff alleges that he has consented to treatment and is
willing to work on his issues, but that the treatment offered is too
limited or too general, leaving him stuck in the third phase of the
five-phase treatment plan. He also alleges that the failure to
provide adequate treatment for his mental disorder is a breach of
the contract between the Illinois Department of Human Services
(DHS) and Liberty Healthcare Corporation (Liberty). He pursues
two counts: a federal due process claim and a supplemental state
law claim for the intentional infliction of emotional distress.
On these allegations, the Court cannot rule out a potential due
process claim that the Plaintiff’s mental health treatment is
constitutionally inadequate. See Hughes v. Farris, 809 F.3d 330
(7th Cir. 2015)(civil detainees in Rushville are constitutionally
entitled to “‘some treatment,’ as determined by mental-health
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professionals exercising professional judgment.”)(quoted and other
cites omitted); Smego v. Payne, 469 Fed.Appx. 470, 474 (7th Cir.
2012)(not published in Fed. Rptr.)(“Civilly committed sex offenders
have a Fourteenth Amendment right to adequate medical care. . .
.[D]efendants do not dispute that Smego’s mental disorder . . .
constitutes a serious medical need).
Whether all of the named Defendants are personally
responsible for the alleged lack of treatment is a determination that
should await a developed record. Plaintiff names as two of the
Defendants James Dimas (the DHS Secretary) and Herbert Caskey,
who appears to be the Chief Executive Officer of Liberty Healthcare
Corporation. These Defendants cannot be liable for their
subordinate’s constitutional violations solely because these
Defendants are in charge. Matthews v. City of East St. Louis, 675
F.3d 703 (7th Cir. 2012) (“To show personal involvement, the
supervisor must “know about the conduct and facilitate it, approve
it, condone it, or turn a blind eye for fear of what they might see.”)
However, Plaintiff may be making a systemic challenge to the
treatment provided that might be attributable to these Defendants.
Accordingly, all Defendants will remain in the case for now.
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As to Plaintiff’s state law claim for the intentional infliction of
emotional distress, no plausible inference arises on these
allegations that Defendants’ conduct is the kind of “truly extreme
and outrageous” conduct that might support such a claim. Pavlik
v. Kornhaber, 326 Ill.App.3d 731, 744 (1st Dist. 2001)(“Liability
arises only where the conduct complained of was “ ‘atrocious, and
utterly intolerable in a civilized community.’”)(quoted cite omitted).
This claim will be dismissed, without prejudice to amending.
Additionally, Plaintiff does not specifically pursue a separate count
for breach of the contract between DHS and Liberty, but Plaintiff is
advised that in order to pursue such a claim he must be a thirdparty beneficiary of the contract. See Carlson v. Rehabilitation
Institute of Chicago, 2016 IL App (1st) 143853, 2016 WL 1051653
*2-3 (“In third-party beneficiary contracts, a party (the promisor)
promises to render a certain performance not to the other party
(promisee), but rather to a third person (beneficiary).”).
IT IS ORDERED:
1.

Pursuant to a review of the amended complaint, the

Court finds that Plaintiff states a claim that his mental health
treatment is constitutionally inadequate.
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This case proceeds

solely on this claim at this point. 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.

Plaintiff’s state law claim for the intentional

infliction of emotional distress is dismissed, without prejudice
to amendment.
3.

Plaintiff’s breach of contract claim, to the extent he

pursues the claim, is dismissed, without prejudice to
amendment.
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
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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 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
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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.
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
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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.
ENTERED:

September 20, 2016.

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

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