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August 18, 1981


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff brings this action on his own behalf and on behalf of a class of persons previously certified by this Court, 482 F. Supp. 121,*fn1 against two employees of the Illinois Department of Mental Health and Developmental Disabilities ("DMHDD").*fn2 Plaintiffs allege that those male patients charged with crimes and found unfit to stand trial*fn3 ("USTs") who are assigned to the Chester Mental Health Center, or who are transferred to Chester from a less restrictive facility, are assigned in violation of procedural due process. Plaintiffs further allege that they were deprived of equal protection because, unlike other civilly committed patients, they were not given periodic reviews regarding their need for continuing treatment. Additionally, plaintiffs assert that the placement of male USTs at the Chester facility, while female USTs are assigned to the less restrictive Elgin facility, constitutes discrimination on the basis of gender. Finally, plaintiffs challenge the constitutionality of certain of the conditions at the Chester facility. This matter is currently before the Court on cross motions for summary judgment.

I. Procedural Due Process Claims

Plaintiffs assert two related procedural due process claims. First, they contend that their initial assignment to Chester, after being designated as USTs, was made without procedural protections. Next, they assert that certain plaintiffs were transferred from less restrictive facilities such as the Mantino Mental Health Center to the more restrictive Chester facility without due process. At the heart of both these claims is the fact that plaintiffs were assigned to the maximum security Chester facility without there having been any individualized finding by the defendants that plaintiffs were dangerous or in need of a highly restrictive setting.

The fourteenth amendment prohibits a state from depriving a person of life, liberty, or property without due process of law. The initial inquiry must concern whether the actions complained of infringe or implicate a liberty interest accorded by either state or federal law. Meachum v. Fano, 427 U.S. 215, 223, 96 S.Ct. 2532, 2537, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). In Meachum, the Supreme Court held that given a valid criminal conviction, a prisoner's liberty interests are "sufficiently extinguished . . . to empower the State to confine him in any of its prisons." Id., 427 U.S. at 224, 96 S.Ct. at 2538. Accordingly, the Court found that prisoners transferred to a prison where conditions are considerably less favorable, Meachum, supra, and prisoners subjected to disciplinary transfers, Montanye, supra, do not have their liberty interests implicated by virtue of the transfers, and consequently, need not be accorded due process protection.

The holdings in Meachum and Montanye, however, are predicated on two factors: (1) that convicted criminals have their liberty interests extinguished to a significant degree by virtue of their conviction, and (2) that plaintiffs in those cases could not establish any foundation in state or federal law or practice for the liberty interest that they attempted to assert. It is essential to note that in the instant case, plaintiffs have not been convicted of any crime and their institutionalization is meant to serve therapeutic as well as security purposes. Moreover, plaintiffs have identified specific statutory provisions which create justifiable expectations that they would not be assigned to the Chester facility, except upon the occurrence of certain specified events.

As we stated in our earlier opinion, the precise nature of the procedural due process protections required in a given situation depends upon the extent to which plaintiffs might suffer "grievous loss," a question which requires an examination both of the governmental function involved and the private interest affected. Johnson v. Brelje, 482 F. Supp. 125, 131 (N.D.Ill. 1979), citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). As indicated in Meachum, supra, 427 U.S. at 224, 96 S.Ct. at 2538, once a court has decided that confinement is necessary, the State is to be given broad initial discretion in its decision regarding where a person is to be confined. But, unlike convicted criminals, plaintiffs can justifiably expect that their assignment will be based upon an individualized determination of their dangerousness, conducted prior to placement. This expectation is rooted in the provision of the Illinois Mental Health Code that requires patients to be treated in the least restrictive environment possible, according to an individualized service plan. Ill.Rev.Stat., ch. 91 1/2, § 2-102 (1980); Johnson v. Brelje, supra, 482 F. Supp. at 132.

Plaintiffs who reside at a less restrictive facility and who are transferred to the maximum security Chester facility, also have justifiable expectations rooted in state law and practice that they will not be transferred to a more restrictive facility absent an individualized finding that transfer is consistent with their treatment needs. That expectation arises from a variety of sources including Ill.Rev.Stat., ch. 91 1/2, § 2-102. As pointed out in our earlier opinion, the Illinois Mental Health Code provides that civilly-committed patients can be transferred only if such a transfer is consistent with the treatment needs of the patient and only after the patient is provided with notice and an opportunity for a hearing. Johnson v. Brelje, supra, 482 F. Supp. at 131; Ill.Rev.Stat., ch. 91 1/2, §§ 3-908, 3-910 (1980). Moreover, defendants have admitted that once a UST is determined to be no longer in need of a secured setting, he will be placed in the unsecured DMHDD facility closest to his residence, where restrictions on his liberty are lifted. Defendants' Memorandum in Support of Motion for Summary Judgment at 35. It is somewhat incongruous, then, for the State to find a patient to be no longer in need of a secured facility, transfer him to a less restrictive facility, and then transfer him back to the maximum security facility merely for administrative convenience — which is what happened in this case to plaintiff William Johnson. Given the Illinois statutes and the State's practice regarding the transfer of USTs, the Court finds it justifiable for a UST to expect that he will not be transferred from a less secured facility to a more restrictive facility unless it is consistent with his treatment needs and in response to his need for a more secured setting. Accordingly, it is clear that in accordance with the standards established in Meachum and Montanye, plaintiffs who initially were assigned to Chester after being designated as USTs and plaintiffs who were transferred to Chester from a less restrictive facility have had their liberty interests implicated by virtue of the transfer.

Plaintiffs' procedural due process rights having been invoked, it is necessary for the Court to determine the scope of the procedural protections that must be provided. We are guided in this task by the balancing test articulated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), and applied by the Seventh Circuit in Anthony v. Wilkinson, 637 F.2d 1130, 1141 (7th Cir. 1980):

  [I]dentification of the specific dictates of due
  process generally requires consideration of three
  distinct factors: First, the private interest
  that will be affected by the official action;
  second, the risk of an erroneous deprivation of
  such interest

  through the procedures used, and the probable
  value, if any, of additional or substitute
  procedural safeguards and finally, the
  government's interest, including the function
  involved and the fiscal and administrative
  burdens that the additional or substitute
  procedural requirement would entail.

In the instant case, the private interest involved already has been alluded to. The Chester facility is a maximum security institution that imposes severe restrictions on the movement and activities of its inhabitants. Also, because of Chester's distant location from Cook County, where most of the patients resided prior to confinement, placement at Chester means being deprived of contact with family and friends. See Anthony v. Wilkinson, 637 F.2d 1130, 1141 (7th Cir. 1980). The UST's interest in not being assigned or transferred to Chester without an individualized finding regarding his treatment needs and dangerousness is indeed substantial.

The procedures currently used by defendants prior to assigning a UST to Chester are relatively simple. Before initially being assigned to Chester, USTs are not provided with any notice of their assignment and are given no opportunity to challenge their assignment. The assignment is made on administrative grounds, as there is no individualized finding that a particular UST has need for, or would benefit from, placement in a facility as restrictive as Chester. USTs who are transferred from a less restrictive facility to Chester are given oral notice of the transfer and are told that they can protest the transfer, although there do not appear to be any guidelines for the processing of any protest, should one be lodged. Moreover, the oral notice is of little value, considering the fact that the notice is being given to people who have been determined to be unable to understand the nature and purpose of the proceedings against them or to assist in their defense. Ill.Rev.Stat., ch. 38, § 104-10 (1980). Consequently, it comes as no surprise that of the approximately 50 USTs who were transferred from Manteno to Chester in the fall of 1977, not a single one requested an appeal.

The final due process requirement to be considered is the government's interest. The Court is not unmindful of the difficult administrative task faced by defendants in attempting to provide treatment and security for persons residing in their institutions. The Court also is cognizant of the additional fiscal and administrative burdens that new procedural requirements may entail.

Nonetheless, the loss facing a UST who is about to be assigned or transferred to Chester is significant. It is comparable to that faced by the state prisoner scheduled for involuntary transfer to a state mental institution in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), or to the loss facing a state prisoner who was about to be transferred to the federal system in Anthony v. Wilkinson, 637 F.2d 1130 (7th Cir. 1980). In both those cases, demanding procedural protections were required because of the immediate and tangible loss faced by the prisoners.*fn4 Of course, every factual situation has its own contours and the due process protections to be imposed will vary accordingly. In the instant case, the Court finds that the following procedures must be followed to ensure that those who face assignment or transfer to Chester are provided with minimum due process: (a) written notice of proposed assignment or transfer to Chester must be provided to the patient and his attorney; (b) disclosure to the patient and his attorney of the individualized basis for the proposed assignment or transfer to Chester; (c) opportunity to contest the proposed assignment or transfer at a hearing where the patient has an opportunity to appear in person and to ...

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