McNeal v. Dimas et al

Filing 7

MERIT REVIEW OPINION: ( Rule 16 Deadline 4/17/2017.) Plaintiff's petition to proceed in forma pauperis is granted. Pursuant to a review of the Complaint, the Court finds that Plaintiff states a constitutional claim for an alleged lack of mean ingful treatment for Plaintiffs mental disorder by qualified professionals. This case proceeds solely on the claims identified in this paragraph. This case is now in the process of service. The Clerk is directed to enter the standard qualified pro tective order pursuant to the Health Insurance Portability and Accountability Act. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 2/14/2017. (ME, ilcd)

E-FILED

Tuesday, 14 February, 2017 02:38:59 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
NATHAN MCNEAL,
Plaintiff,
v.
JAMES T. DIMAS, et al.,
Defendants.

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16-CV-4215

MERIT REVIEW OPINION
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 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).
Plaintiff is has been civilly committed to the Rushville
Treatment and Detention Center as a “sexually violent person”: a
person “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 207/5(f). He alleges
that he is being denied meaningful treatment for his mental
disorder, including the lack of professional qualifications of his
treatment providers, the lack of an effective treatment approach,
and the lack of adequate treatment resources and time. For
example, he alleges that he receives only 45 minutes of treatment
per week in a program designed to take 3,000 hours to complete.
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These allegations state a plausible Fourteenth Amendment
claim for an alleged lack of meaningful treatment for Plaintiff’s
mental disorder by qualified professionals. Meaningful treatment
would be designed and implemented to progress Plaintiff toward the
goal of his eventual release as expeditiously as reasonably possible.
See Hughes v. Dimas, 837 F.3d 807 (7th Cir. 2016)(“the Supreme
Court understands the Fourteenth Amendment to require that civil
detainees receive treatment for the disorders that led to their
confinement and be released when they've improved enough no
longer to be dangerous.”)
However, Plaintiff’s allegations do not state a supplemental
state law claim for the intentional infliction of emotional distress.
To state a claim for the intentional infliction of emotional distress,
Plaintiff's alleged facts must allow a plausible inference that: 1)
Defendants engaged in "truly extreme and outrageous conduct"; 2)
Defendants intended to cause extreme emotional distress or knew
extreme emotional distress was highly probable; and, 3) Plaintiff
actually suffered severe emotional distress. Feltmeier v. Feltmeier,
207 Ill.2d 263, 268-69 (2003). Extreme and outrageous conduct is
"'beyond all bounds of decency'" and "'intolerable in a civilized
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community.'" Fox v. Hayes, 600 F.3d 819, 842 (7th Cir.
2010)(quoted cite omitted). The "'distress inflicted must be so
severe that no reasonable person could be expected to endure it.'"
Bristow v. Drake Street Inc., 41 F.3d 345 (7th Cir. 1994)(quoted cite
omitted). Defendants alleged failure to adequately treat Plaintiff’s
mental disorder does not rise to that level of 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 a constitutional claim for an alleged lack of
meaningful treatment for Plaintiff’s mental disorder by qualified
professionals. 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.

Plaintiff’s supplemental state law claim for the intentional

infliction of emotional distress is dismissed, without prejudice, for
failure to state a claim.
3.

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
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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.
4.

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.
5.

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

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addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6.

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.
7.

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.
8.

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.
9.

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
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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.
10.

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).
11. Plaintiff’s motion for appointed pro bono counsel is denied
(3). The Court does not have the authority to require an attorney to
accept pro bono appointment on a civil case such as this. Pruitt v.
Mote, 503 F.3d 647, 653 (7th Cir. 2007). In determining whether
the Court should attempt to find an attorney to voluntarily take the
case without pay, the question is “given the difficulty of the case,
does the plaintiff appear competent to litigate it himself?" Pruitt,
503 F.3d at 654-55 (7th Cir. 2007). On this record, Plaintiff
appears competent to proceed pro se. His pleadings are well
written, demonstrating knowledge of the applicable law and
procedure. At this point his claim is relatively simple. He has
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personal knowledge of the treatment he has received, his treatment
plan, his progression in treatment, and his civil commitment
proceedings. Plaintiff may renew his motion on a more developed
factual record, setting forth his educational level, any jobs he has
had inside or outside of prison or detention, any classes he has
taken in prison or detention, and his litigation experience in state
and federal court.
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: 2/14/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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