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September 29, 1992

STATE OF ILLINOIS, JAMES R. EDGAR, Governor of the State of Illinois, LEIGH STEINER, Acting Director, Illinois Department of Mental Health and Developmental Disabilities, and KATHLEEN A. MUNIZ, Superintendent, W.A. Howe Developmental Center, Defendants.

The opinion of the court was delivered by: PAUL E. PLUNKETT


 This matter is before us on Plaintiff United States of America's (the "USA") Motion to Strike Affirmative Defenses and for Partial Summary Judgment. For the reasons set forth below, we grant the USA's motion to strike in part and deny it in part. Because we decide this motion as a motion to strike, the USA's request for the alternative relief of partial summary judgment is denied as moot.


 Rule 12(f) allows a party to move to strike material in a pleading under certain circumstances where that material is redundant, immaterial, impertinent or scandalous, or where it constitutes an insufficient defense. *fn1" As the Seventh Circuit has explained, "Affirmative defenses will be stricken 'only when they are insufficient on the face of the pleadings.'" Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991), cert. denied, 119 L. Ed. 2d 228, U.S. , 112 S. Ct. 2306 (1992) (quoting Heller Financial v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). We may grant a motion to strike only where it is plain that regardless of the facts that might be proven in support of the defense, the plaintiff would succeed on his or her claim. Id.

 Here, the USA claims that Defendants have failed to meet the constitutional minimums set out by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307 (1981), *fn2" and it seeks injunctive relief requiring Defendants to comply with those standards. As noted above, Defendants have asserted five defenses. To determine the sufficiency of these defenses, we must consider whether, if Defendants successfully proved them, the USA would still be entitled to the relief its seeks.

  *fn2" These rights, which arise under the Due Process Clause of the Fourteenth Amendment, include the right to "reasonable care and safety, [the right to] reasonably nonrestrictive confinement conditions, and [the right to] such training as may be required by these [constitutionally protected] interests." Youngberg, 457 U.S. at 324.

 Defendants' first defense alleges that the USA has failed to comply with all of the prefiling requirements contained in 42 U.S.C. § 1997b (a)(2). Section 1997b(a) requires that the United States Attorney General certify that all prefiling requirements of § 1997b(a) have been met. The USA attached the appropriate certification to its Complaint. Thus, the USA asserts, Defendants' affirmative defense challenges the validity of the certification itself, which Defendants may not do. We agree. In United States v. New York, 690 F. Supp. 1201 (W.D.N.Y. 1988), the court reviewed the then-existing case law regarding this provision (which is still the same today), noting that two courts have held that the certification is nonreviewable, *fn3" while a third has allowed a challenge to the certification only on distinguishable facts. *fn4" 690 F. Supp. at 1204. The court also noted that similar civil rights statutory schemes and case law have held that certifications of this type may not be challenged. Id. We find this reasoning persuasive. *fn5" Defendants' first affirmative defense is stricken.

 Next, Defendants assert that this lawsuit is prohibited by 42 U.S.C. § 1997i (1981), which provides that CRIPA does "not authorize promulgation of regulations defining standards of care." As we have already discussed, the USA has sued Defendants under CRIPA on the grounds that conditions and care at the Howe facility fall below constitutional minimums. Yet Defendants would have us believe that the same statute which authorizes the USA to sue also prohibits such a suit as the "promulgation of regulations," an absurd result. (If this is not Defendants' intention, the defense is meaningless.) Moreover, we believe § 1997i means only what is says, that the United States Attorney General may not, on the basis of CRIPA, establish regulations setting standards of care. This interpretation is bolstered by the Supreme Court's discussion in Youngberg regarding the exercise of professional judgment: "'the Constitution only requires that the courts make certain that professional judgment in fact was exercised.'" Youngberg, 457 U.S. at 321 (quoting Youngberg v. Romeo, 644 F.2d 147, 178 (3d Cir. 1980) (Seitz, C.J., concurring)). As the Supreme Court explained,

 [A] decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.

 457 U.S. at 323. Clearly, a CRIPA action by the Attorney General to require a state to comply with this constitutional standard is not equivalent to "the promulgation of regulations defining standards of care." 42 U.S.C. § 1997i (1981). We strike Defendants' second defense as well.

 We move on to Defendants' third affirmative defense. In it, Defendants allege that they have been certified as eligible for Medicare funding by the Health Care Financing Administration. But they fail to tell us why this matters. The assertion of this defense injects into this lawsuit the issue of the standards for eligibility for Medicare funding. *fn6" If we suppose that Defendants successfully prove that they did indeed meet Medicare funding eligibility standards, we must next ask if this will preclude the USA from obtaining the relief it seeks. The obvious answer is no. To the extent Medicare funding eligibility standards are different than the minimum standards required by the Constitution, they are irrelevant and immaterial, for Defendants must still meet the constitutionally-required standards; to the extent the two standards are the same, the Medicare funding eligibility standard is redundant. Significantly, Defendants assert in their brief only that a decision on the merits of this defense is premature at this stage; they do not offer one word of explanation as to the relevance of Medicare funding eligibility standards to the question of whether the conditions and care at the Howe facility meet the requirements of the Constitution. Defendants' third affirmative defense is stricken.

 Defendants' fourth affirmative defense is that they have in fact met the constitutional minimums set out in Youngberg. The USA asserts that because Defendants denied the material allegations of the Complaint, this defense is redundant. In a technical sense, the USA may be correct, but the relevance and materiality of this defense are obvious. Since the USA has not demonstrated any harm either to it or to the efficient conduct of ...

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