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JOHNSON v. BRELJE

United States District Court, Northern District of Illinois, Eastern Division


October 1, 1981

WILLIAM JOHNSON, BY HIS CONSERVATOR, RICHARD JOHNSON, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
TERRY BRELJE, PH.D., SUPERINTENDENT OF CHESTER MENTAL HEALTH CENTER, ROBERT DEVITO, DIRECTOR, ILLINOIS DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, DEFENDANTS.

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

SUPPLEMENTAL ORDER

This case came before the court on cross motions for summary judgment. In a Memorandum Opinion and Order issued on August 18, 1981, 521 F. Supp. 723, this court ruled on all issues raised in the cross motions for summary judgment, except for the alleged denial of periodic reviews prior to January 1, 1979. The parties have agreed in open court that this issue is now moot based upon the finding by this court that the defendants cannot be held liable for damages in this action.

In furtherance of the Order and Opinion of August 18, 1981, and in order to fully and finally resolve the issues raised before this court in this case, IT IS HEREBY ORDERED AS FOLLOWS:

Definitions

"Chester" means the Chester Mental Health Center. "DMHDD" means the Illinois Department of Mental Health and Developmental Disabilities.

"Future USTs" means those defendants who will be found unfit to stand trial and referred to DMHDD for admission subsequent to November 1, 1981, and who are assigned to Chester.

"Admission" means the initial placement of a future UST in a facility of DMHDD.

"Transfer" means the reassignment of a future UST from one DMHDD facility to another.

Admissions and Transfers

Effective November 1, 1981, all admissions and transfers to Chester of persons found unfit to stand trial, shall be in accordance with these procedures.

1. Admissions to Chester.

  a. Ten (10) days prior to the proposed placement at
    Chester, DMHDD shall serve written notice to the
    future UST and his attorney, of the proposed
    assignment to Chester. The notice shall include the
    evidentiary basis for the assignment, a statement
    that a hearing may be requested to contest the
    assignment, and the name of the person to whom a
    request for a hearing should be directed.

  b. If a request for a hearing is received prior to the
    scheduled date for admission to Chester a hearing
    will be convened. The hearing will take place within
    fourteen (14) days of receipt of the request.

    A neutral and detached hearing officer will be
    appointed. The hearing officer will be a physician,
    psychiatrist, clinical psychologist or qualified
    examiner; but in no case will s/he have been
    involved in the evaluation process. The future UST
    will remain in the jail pending the decision of the
    hearing officer.

c. At the hearing the future UST shall have:

      1) An opportunity to contest the proposed
    assignment;

      2) An opportunity to appear in person and to
    present witnesses and evidence on his behalf;

      3) The right to confront and cross examine
    witnesses unless the hearing

    officer finds good cause for not allowing
    confrontation.

  d. The decision of the hearing officer shall be based
    upon the evidence introduced at the hearing. The
    burden shall be on DMHDD to establish that the
    assignment to Chester is the least restrictive
    environment appropriate for the future UST, based
    upon an assessment of the risk of dangerousness and
    the risk of escape presented by him. The decision of
    the hearing officer shall include a written
    statement as to the evidence relied upon and the
    reasons for the decision.

  e. Upon notification of the decision of the hearing
    officer, the sheriff will be advised of the DMHDD
    facility to which the future UST may be transported
    for admission.

2. Transfers to and from Chester.

  All residents unfit to stand trial shall be
  transferred to and from Chester in accordance with the
  standards and procedures of the Illinois Mental Health
  and Developmental Disabilities Code. This provision is
  entered subject to the right of the plaintiffs'
  attorney, at the end of one (1) year, to petition the
  court for reconsideration if abuses of this provision
  can be demonstrated.

3. Outside Activities.

  It will be the policy of the Chester Mental Health
  Center that a total of at least five opportunities to
  be outside per week will be scheduled for residents.
  The five activities scheduled may be a combination of
  the recreation area, the outdoor courtyards, the
  horticulture activities, cookouts, carnival activities
  and the like. Such activities will not be offered if
  one or more of the following conditions prevail:

  a. The outside temperature is below 40°. However,
    if the resident has not been permitted outdoors for
    seven (7) days or more solely because the
    temperature was below 40°, Chester shall permit
    the resident to go outdoors at least one (1) day per
    week should the temperature be 32° or warmer.
    This proviso is entered subject to the right of the
    defendants, at the end of one year, to petition the
    court for modification for good cause shown.

  b. The outside temperature exceeds 90°. This is
    medically necessary in view of the interaction
    effects between the heat, sunlight, humidity and the
    medications.

  c. An individual resident may be denied the
    opportunity if his behavior or clinical condition
    make his participation unsafe.

  d. Inclement weather such as rain, etc., render the
    area unusable.

  e. Condition of the physical plant or other activities
    occurring in the area which would render it unsafe
    or make it impossible to maintain security.

  f. Unplanned and unexpected personnel shortages as a
    result of illness or other circumstance which would
    make it impossible to assure safety or security.
    Should the conditions described in paragraphs #e
    and #f above, continue for a period of twenty one
    (21) days, the defendants shall so notify
    plaintiffs' attorneys on the twenty second day;
    provided however, that this notice requirement shall
    continue only for a period of one (1) year from the
    date of this Supplemental Order.

4. Telephone Policy.

  Chester agrees that there shall be no ten (10) minute
  limit on calls defendants place to attorneys.
  Accordingly, residents shall be allowed reasonable
  time necessary for such calls, subject only to the
  limitation that telephone equipment is shared by other
  residents and no one resident will be permitted to
  effectively prevent other defendants from use of the
  telephones.

  It shall be the policy of Chester to allow attorneys
  to call residents during the normal business day. Each
  resident shall be afforded the opportunity to provide
  Chester with the name of his attorney(s). However, if
  the caller is unknown to the Center, in order to
  preserve confidentiality and also prevent a security
  breach, the

  following procedure will be utilized to facilitate the
  resident's talking with his attorney. The attorney's
  name and number will be taken and if the resident is
  on the unit, he will be notified immediately of the
  attorney's desire for him to call and telephone
  equipment made available for him to do so. If the
  resident is off the unit a message will be left for
  him. Within ninety (90) days from the date of this
  Supplemental Order, defendants shall have installed
  telephone equipment, or modify the present equipment,
  to permit the residents to have privacy in conducting
  telephone conversations with their attorneys.

5. Implementation.

  Defendants shall inform plaintiffs' attorneys of any
  change in policies, practices, procedures or written
  instructions which would alter the implementation of
  this Supplemental Order at least ten (10) days prior
  to the implementation of such change; provided
  however, that this notice requirement shall continue
  only for a period of one (1) year from the date of
  this Supplemental Order.

This Order and the Memorandum Opinion and Order constitute a full and final resolution of all issues raised in the above captioned case. The time for filing a Notice of Appeal shall commence on the date of the entry of this Supplemental Order. It is so ordered.

                       NOTICE OF PROPOSED ASSIGNMENT
                      TO CHESTER MENTAL HEALTH CENTER

TO: ______________________ Date of Service of ______________________ Notice ________________________________

The Department of Mental Health and Developmental Disabilities has determined that it would be appropriate to assign _______________________ to Chester Mental Health Center. Unless a hearing is requested, said assignment shall take place on.

Pursuant to the court's decision in Johnson v. Brelje, 78C1704 (N.D.Ill. 1981) a defendant unfit to stand trial who is assigned to Chester may request a hearing to contest that assignment.

The evidentiary basis for the proposed assignment is as follows: ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________

The request for a hearing can be made either by the individual or his attorney. Said request should be in writing and mailed to the following person(s) and must be received before the date assigned for placement:

  __________________________________________________
  __________________________________________________
  __________________________________________________

At this hearing, the individual shall have:

1. The right to contest the proposed assignment;

  2. The right to present witnesses and evidence on
     his behalf;

  3. The right to confront and cross-examine witnesses,
     unless the hearing officer finds good cause for not
     allowing confrontation.

The decision of the hearing officer shall be based on the evidence introduced in the hearing. The burden shall be on DMHDD to show that the assignment to Chester is the least restrictive environment appropriate for the future UST, based upon an assessment of the risk of dangerousness and the risk of escape presented by him. Said decision shall include a written statement by the hearing officer as to the evidence relied upon and the reasons for the decision.

------------------------------------------------------

I, ________________, hereby request a hearing to contest the assignment of ______________ to Chester Mental Health Center.

                                            _____________________________
                                            (Signature)

19811001

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