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August 6, 1993

DIANE M. WILSON, by her plenary Guardian, THOMAS J. WILSON, Plaintiff,


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

This is a section 1983 action involving the right of a mental patient to reasonably safe terms and conditions of confinement. Twice, we have dismissed the Complaint and twice an Amended Complaint has been filed. This matter is before us today on the Defendants' third Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, we grant the motion in part and deny it in part.


 As in a recent case before the United States Supreme Court, "the facts of this case are undeniably tragic." DeShaney v. Winnebago Cty. Social Servs. Dep't, 103 L. ED. 2d 249, 109 S. CT. 998, 489 U.S. 189, 191 (1989). Plaintiff Diane Wilson is a severely disturbed patient at the state-run Madden Mental Health Facility ("Madden") in Hines, Illinois. Ms. Wilson has a lengthy history of stays in mental facilities throughout the midwest and also has a recorded history of fleeing those facilities and placing herself in positions of extreme danger. During these forays, she has been found wandering at the airport, sleeping on the highway, and willingly getting into a van of armed men she did not know. Indeed, it is the tragic result of one of Wilson's many such adventures that led to the allegations in the present case.

 When Wilson was brought to Madden in July 1990, it was pursuant to a pending petition for involuntary commitment. (compl. PP 19-21.) However, the staff at Madden was able to persuade Wilson to agree to a voluntary commitment by informing her that she would lose no rights as a result. (Compl. P 24.) Plaintiff remained at Madden until her discharge on September 4, 1990. On September 25, 1990, she was transferred back to Madden, again pursuant to a petition for involuntary admission. (Compl. P 29.) Once again, the Madden staff was able to persuade the Plaintiff to submit to voluntary admission. (Compl. P 31.)

 Though she was technically a voluntary patient, between July 21, 1990 and November 1, 1991, Wilson made nine written requests to be released from Madden. (Compl. P 33.) After each written request was made, the staff was able to persuade Wilson to withdraw it. (Compl. P 34.) During the same period, Wilson also made seven oral requests to be released which were simply ignored by the Madden staff. (Compl. P 36.)

 On at least one occasion in March 1991, the staff was unable to persuade Wilson to rescind her written request for release. In response, the staff members prepared and filed a petition for involuntary admission in the Circuit Court of Cook County. Wilson was then convinced to rescind her request to be released. (Compl. P 35.) Though the Complaint does not specifically state that the petition was used to coerce Wilson, it is a reasonable inference to draw at this stage of the proceeding.

 Plaintiff filed this suit seeking damages for Wilson's injury from those at Madden responsible for her care and treatment. Defendant Formigoni is the director of the Madden facility. Defendant Deeb was a psychiatrist at Madden who had been treating the Plaintiff. Defendant Wlosinski was a social worker at Madden whose responsibilities included monitoring Wilson's condition. The Defendants are sued in their individual capacities.

 We dismissed the original Complaint on federal constitutional and Illinois law grounds. See Wilson v. Formigoni, No. 92 C 5063, 1992 WL 345399, 1993 U.S. Dist. LEXIS 11027 (N.D. Ill. filed Nov. 16, 1992) (Plunkett, J.). Plaintiff filed an Amended Complaint that essentially restated the allegations of the original while correcting the deficiencies we had noted. However, the Amended Complaint did not indicate whether the Plaintiff was voluntarily or involuntarily committed at Madden, a fact we found essential to our decision on the motion. Thus, we dismissed the Amended Complaint as well. See Wilson v. Formigoni, No. 92 C 5063 (N.D. Ill. filed Mar. 15, 1993) (Plunkett, J.).

 The Plaintiff filed a Second Amended Complaint which alleges the facts recited above. It also alleges that, although Wilson was technically committed voluntarily, the circumstances of her confinement were equivalent to a de facto involuntary commitment.

 The Second Amended Complaint contains five counts. Count I charges all Defendants with violations of Wilson's substantive due process rights in that they failed to install fences and other security equipment at Madden, failed to require that she be kept in a locked care unit, and failed to insure that all Madden employees who dealt with Wilson were familiar with her psychiatric history. See 42 U.S.C. § 1983.

 Count II is a claim for a violation of procedural due process. It alleges that the Defendants violated Ms. Wilson's rights by persuading her to voluntarily commit herself to Madden rather than initiating the procedure for an involuntary commitment pursuant to the Illinois Mental Health Code. See 42 U.S.C. § 1983; 405 ILCS 5/3-700 et seq. Counts III, IV and V charge Defendants Formigoni, Deeb and Wlosinski respectively with negligence. Each count seeks $ 1,000,000.00 in damages from the Defendants named therein.


 On a motion to dismiss, the court views the allegations of the complaint as true, along with reasonable inferences therefrom, and views these in the light most favorable to the plaintiff. Dawson v. General Motors, 977 F.2d 369, 372 (7th Cir. 1992); Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981). A complaint should not be dismissed with prejudice unless it appears beyond doubt that the plaintiff is unable to prove any set of facts consistent with the complaint which would entitle the plaintiff to relief. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). Unless otherwise provided by Rule 9 of the Federal Rules of Civil Procedure, facts need not be plead with particularity. Leatherman v. Tarrant County Narcotics and Intelligence Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993). Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery. Ellsworth v. Racine, 774 F.2d 182, 184 (7th cir. 1985) (citations omitted), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986).

 I. Substantive Due Process

 Certainly, the rights of involuntarily committed mental patients to reasonably conditions of care and safety in their confinement is well-established. In Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), the Supreme Court held that patients in mental health facilities have due process rights to reasonable care and safety. Id. at 324. Though Youngberg involved an involuntarily committed mental patient, many courts extended its due process protections to voluntarily committed patients as well. See, e.g., Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir. 1984) (Youngberg applies equally to voluntarily committed); Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978) (voluntary and involuntary admittees have same constitutional rights to safe environment); Harper v. Cserr, 544 F.2d 1121, 1123 (1st Cir. 1976) (though voluntary patients do not have same right to treatment as involuntary patients, court considered admission of patients who are helpless or confined to be de facto involuntary). Cf. Phillips v. Thompson, 715 F.2d 365, 367 (7th Cir. 1983) (does not decide whether voluntariness affects scope of constitutional rights of residents). *fn2"

 However, the scope of a due process right to safety has recently been narrowed by the Supreme Court. In DeShaney v. Winnebago County Social Servs. Dept., 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), the Court held that a social agency had no duty under the due process clause to protect a boy who was severely beaten by his father despite the attempts of the mother the get the agency to intervene. The Court held that because the state had taken no affirmative action to deprive the child of his liberty, and thus his ability to care for himself, no due process right to safety had arisen. Id., 489 U.S. at 199-200 (where the state, by affirmative exercise of its power, "so restrains an individual's liberty that it renders him unable to care for himself," it is obligated to provide necessities of life, including reasonable safety).

 Though DeShaney did not involve the rights of institutionalized mental patients' to reasonable care and safety, the courts have interpreted its holding in that context to mean that involuntarily committed patients have due process rights to reasonable care and safety while voluntarily committed patients generally do not. See Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 990-94 (1st Cir. 1992) (DeShaney limits Youngberg's "clearly defined" right to involuntarily committed patients); Higgs v. Latham, 946 F.2d 895 (6th Cir. 1991) (Table of Decisions, text in WESTLAW) (due process rights afforded only to involuntarily committed patients under DeShaney); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 466 (3d Cir. 1990) (denying, based on DeShaney, due process claim of voluntarily committed patient's parents when patient was killed by negligence of facility staff); Ridlen v. Four County Counseling Ctr., 809 F. Supp. 1343, 1355-57 (N.D. Ind. 1992) (voluntarily committed patient cannot state a claim under due process); Jordan v. Tennessee, 738 F. Supp. 258, 259-61 (M.D. Tenn. 1990) (right to reasonable care and safety clearly established as to involuntarily committed patients only); Williams v. Hartman, 413 Mass. 398, 597 N.E.2d 1024, 1027-28 (Mass. 1992) (no claim under section 1983 for voluntarily committed patients). But cf., Halderman v. Pennhurst State School and Hosp., 784 F. Supp. 215, 222 (E.D. Pa. 1992) (distinguishing Deshaney and Fialkowski on the grounds of findings of fact that though only half of patients at mental hospital were actually committed by the court, all were essentially involuntarily committed because they had no alternative), aff'd without op., 977 F.2d 568 (3d Cir. 1992). The reason DeShaney mandates that result is clear: in the case of court-ordered commitment, the state has undertaken to deprive the patient of her liberty. See Deshaney, 489 U.S. at 200.

 However, the mere use of the label "voluntary," without more, does not end our inquiry into the Plaintiff's due process rights to safety. Rather, a principled analysis of this question requires us to look at the actual circumstances of the Plaintiff's confinement as well as the label she wore. Under this analysis, the allegations in the Complaint make it clear to us that Ms. ...

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