Tapp et al v. Stover et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 8/24/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN A. TAPP,
NO. K03142, and
DAVID P. HOFFMAN,
NO. N02738,
Plaintiffs,
vs.
JESSICA D. STOVER,
C. THOMAS HOLT,
DANIEL Q. SULLIVAN, and
JOHN R. BALDWIN,
Defendants.

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Case No. 18-cv-1309-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiffs Brian A. Tapp and David P. Hoffman, both inmates of the Illinois Department
of Corrections (“IDOC”) currently incarcerated at Big Muddy River Correctional Center
(“BMRCC”), bring this pro se action for deprivations of their constitutional rights pursuant to 28
U.S.C. § 1983.1 Both Plaintiffs have been civilly confined under the Illinois Sexually Dangerous
Persons Act (“SDP Act”). Plaintiffs claim that Defendants have failed to provide them with
mandated treatment, and challenge the constitutionality of the SDP Act. They seek declarative
relief, injunctive relief, and monetary damages.
The Complaint is now before the Court for preliminary screening pursuant to 28 U.S.C. §
1915A. Under § 1915A, the Court must dismiss any claims that are frivolous, malicious, fail to
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Both Plaintiffs signed the Complaint and submitted motions for leave to proceed in forma pauperis. On July 31,
2018, the Court entered an Order pursuant to Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004). (Doc. 7). In the
Boriboune Order, the Court warned Plaintiffs about the risks, obligations, and costs associated with group litigation.
Id. On August 6, 2018, both Plaintiff’s responded, acknowledging the Court’s warnings and stating that they want
to proceed with the group litigation. (Doc. 8).

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state a claim upon which relief may be granted, or ask for money damages from a defendant who
by law is immune from such relief. 28 U.S.C. § 1915A(b).
The Complaint
The defendants in this action are: Jessica Stover, who has been Plaintiffs’ assigned
primary therapist at BMRCC for several years; Thomas Holt, who oversees the SDP program
(“SDPP”) at BMRCC; John Baldwin, Director of IDOC and Plaintiffs’ “legal guardian” as SDPs;
and Daniel Sullivan, the BMRCC Warden. (Doc. 1, pp. 1-3). Plaintiffs are suing each of these
defendants in his/her official capacity only, and seek declaratory and injunctive relief. (Doc. 1,
p. 6).
Plaintiffs assert claims which are virtually identical to claims in two other actions
pending before this Court: (1) Howe, v. Holt, Case No. 14-cv-844-SMY-RJD (See Docs. 10, 26
in that case) and (2) Smith v. Stover, Case No. 18-cv-1023-SMY-RJD (See Doc. 10 in that case).
Specifically, Plaintiffs maintain Defendants have failed to provide them with adequate treatment
as civilly committed SDPs. (Doc. 1, pp. 2-3). They allege that instead of providing them with a
therapeutic atmosphere, their conditions of confinement exacerbate their mental illness. (Doc. 1,
p. 3).
Plaintiff Tapp states that he has been diagnosed with a paraphilic disorder and a
personality disorder. (Doc. 1, p. 4). He alleges he was admitted to the SDPP in 1997 and has
completed the entire program. Id. Plaintiff Hoffman has also been diagnosed with a paraphilic
disorder and a personality disorder. Id. Hoffman alleges he admitted to the SDPP in 1980 and
has completed each group offered as part of the program – on multiple occasions. Id.
According to the Complaint, Plaintiffs do not receive individual treatment or treatment
designed to effect their recovery. Id. They are currently receiving only 1 hour per week of

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group therapy. Id. Because the group is so large, they often have to wait for 8-12 weeks before
presenting “individual work.” Id.
Plaintiffs allege that the SDPP is severely punitive, understaffed, underfunded, and has
no standard of completion. Id. (Doc. 1, p. 5). They also object to the program’s patient/staff
ration (215/3), unavailable treatment modules, treatment protocols requiring participants to admit
to criminal conduct, lack of any identifiable curriculum, the punitive nature of the program, and
the lack of oversight, and abusive staff conduct. (Doc. 1, pp. 6-9).
Plaintiffs further allege that Stover, the lead therapist within the SDPP, is “severely
punitive, [and] has an abusive attitude towards SDPs.” (Doc. 1, p. 5). They claim that she fails
to utilize professional judgment, fails to treat SDPs with care and concern as patients, and
repeatedly interferes with the program’s independent evaluation process. Id. Plaintiffs also
allege that, under Holt’s supervision, the SDPP has gone from providing them with 8-10 hours
per week of treatment, access to social activities, and out-of-cell opportunities to 1 hour of group
treatment per week, no social activities, and an average of 20 hours per day confined to their
cells. (Doc. 1, p. 6).
Finally, Plaintiffs allege that Defendants Sullivan and Baldwin are aware of the allegedly
unconstitutional SDPP policies and have condoned or turned a blind eye to them. Id
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed

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without prejudice.
Count 1:

Defendants have violated Plaintiffs’ right to receive treatment as
civilly committed sexually dangerous persons;

Count 2:

Defendants have violated Plaintiffs’ right to receive treatment for
their mental illnesses and disorders under the Fourteenth
Amendment;

Count 3:

Defendants Holt, Sullivan, and Baldwin violated Plaintiffs’ rights
under the Fourteenth Amendment by failing to adequately train or
supervise employees regarding the proper care and treatment for a
SDP who is civilly committed due to mental disorder;

Count 4:

Defendants have violated Plaintiffs’ liberty interests under the
Fourteenth Amendment by subjecting them to a severely punitive
environment.

Counts 1-4 are identical to the claims that survived preliminary review in Smith v. Stover,
Case No. 18-cv-1023-SMY-RJD. (See Doc. 10 in that case). Accordingly, the Court adopts and
incorporates its reasoning and analysis set forth relative to those claims in its Memorandum and
Order (See Doc. 10 in 18-cv-1023-SMY-RJD), and Counts 1-4 in the instant case shall receive
further review.
Pending Motions
Plaintiffs’ Motions for Leave to Proceed in Forma Pauperis (Docs. 2 and 3) shall be
addressed in a separate order.
Plaintiffs’ Motion for Service of Process at Government Expense (Doc. 4) is
GRANTED. Service on the Defendants shall be ordered below.
Disposition
IT IS ORDERED THAT the Clerk of Court shall prepare for Defendants STOVER,
HOLT, BALDWIN, and SULLIVAN (in their official capacities): (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
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Summons). The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to each Defendant’s place of employment as identified by Plaintiffs. If
a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk
within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on that Defendant, and the Court will require that Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Reona J. Daly for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
for disposition, pursuant to Local Rule 72.2(b)(3) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiffs, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
their applications to proceed in forma pauperis have been granted. See 28 U.S.C. §
1915(f)(2)(A).

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Finally, Plaintiff are ADVISED that they are under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate their whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).

IT IS SO ORDERED.
DATED: August 24, 2018

s/ STACI M. YANDLE
United States District Judge

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