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September 28, 2004.


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


Terry Duke and Brad Lieberman ("Plaintiffs"), detainees under the Illinois Sexually Violent Persons Act, 725 ILCS 207/1, et seq., bring this pro se complaint pursuant to 42 U.S.C. § 1983, alleging that defendant Affiliated Psychologists Ltd. ("Affiliated") and its employees*fn1 violated their constitutional right to due process. Defendant filed a motion to dismiss, which the court granted on January 16, 2003. However, Plaintiffs filed a motion to vacate the dismissal order because they had not had an opportunity to respond. The court granted Plaintiffs' motion and gave them an opportunity to respond to the motion to dismiss. After due consideration of Plaintiffs' response, the court concludes that Defendant's motion to dismiss was properly granted. I. Standard of Review on a Motion to Dismiss for Lack of Subject Matter Jurisdiction

Affiliated's motion to dismiss is based on the abstention doctrine. This kind of motion is considered under Federal Rule of Civil Procedure 12(b)(1). See Beres v. Village of Huntley, 824 F. Supp. 763, 766 (N.D. Ill. 1992). The court may consider materials outside the pleadings without converting the motion into one for summary judgment. English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). In ruling on a 12(b)(1) motion, the court looks both to the allegations in the complaint and to other materials relating to the issue of the court's jurisdiction. Discovery House, Inc. v. Consolidated City of Indianapolis, 970 F. Supp. 655, 658 (S.D. Ind. 1997).

  II. Facts

  Plaintiffs allege that the Circuit Court of Cook County ordered them to be detained under the Illinois Sexually Violent Persons Act. They have complained that their detention is illegal because no probable cause hearing was afforded them within the time frame set forth in 725 ILCS 207/30(b).*fn2

  Plaintiffs claim that Affiliated has attempted to conduct clinical interviews with them although it should not conduct such interviews before probable cause has been found. Plaintiffs allege that Affiliated's testing procedures have not been cross validated or peer reviewed and that their reports almost always echo the reports written by Department of Corrections evaluators although Affiliated is required by statute to give independent evaluations. Plaintiffs argue that Affiliated has a financial stake in keeping residents at the facility for life. Plaintiffs claim that by interviewing them before a finding of probable cause, Affiliated is acting as an evidence gatherer for the State of Illinois and misleads courts and juries as to the danger Plaintiffs pose.

  Plaintiffs seek injunctive relief, specifically, an order protecting them from being subjected to the unprofessional, improper, and illegal practices performed on a routine and regular basis by Affiliated as a contractor for the Illinois Department of Human Services Sexually Violent Persons Program.

  III. Analysis

  Affiliated argues that this action should be dismissed under Fed.R. Civ. P. 12(b)(1) pursuant to the abstention doctrine. Under this doctrine, federal courts should not entertain a claim for damages, injunctive, or declaratory relief, if disposition of the civil action would involve ruling on issues that could be raised in the state proceeding.

  The abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), requires federal courts to abstain rather than interfere in a pending state criminal proceeding. This concept was later expanded to pending civil proceedings that implicate important state interests, Trainor v. Hernandez, 431 U.S. 434, 444 (1977), and in which the federal claims can be decided by the state appellate tribunal, Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 609 (1975). It also extends to claims for monetary relief if federal adjudication would be disruptive of the state proceeding, Simpson v. Rowan, 73 F.3d 134, 137 (7th Cir. 1995), citing Samuels v. Mackell, 401 U.S. 66 (1971); Hudson v. Chicago Police Dept., 860 F.Supp. 521, 523 (N.D. Ill. 1994).

  A three-pronged test is used to determine whether abstention in favor of a state proceeding is appropriate. Middlesex Co. Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 432 (1982). The inquiries are (1) whether the state proceedings are ongoing; (2) whether the state proceedings implicate important state interests; and (3) whether the state proceedings provide an adequate opportunity to raise federal questions.

  In the instant case, Plaintiffs' commitment proceedings were ongoing at the time they filed this action. Whether Plaintiffs' state actions are still pending does not matter for purposes of resolving this action, see Majors v. Engelbrecht, 149 F.3d 709, 712 (7th Cir. 1998). Plaintiffs' state court proceedings implicate important state interests, namely the commitment of sexually violent offenders to a treatment and detention facility pursuant to 725 ILCS 207/40. Finally, Plaintiffs have an adequate opportunity to raise any federal questions at their commitment proceedings. Ohio Civil Rights Commission v. Dayon Christian School, 477 U.S. 619 (1986). Although the commitment proceedings are civil rather than criminal, 725 ILCS 207/35(b), all the rules of evidence in criminal actions apply and the respondent has all constitutional rights available to a defendant in a criminal proceeding. 725 ILCS 207/35(b). Plaintiffs, who are represented by counsel, have an opportunity to raise any objections to the use of Affiliated and its employees before the state trial court.

  Enjoining Affiliated and its employees from interviewing Plaintiffs would seriously disrupt ongoing state proceedings. The court accordingly finds that abstention is warranted in this case.

  Instead of responding to Affiliated's argument that this court should abstain from ongoing state commitment proceedings, Plaintiffs contend that Affiliated should not be represented by the Attorney General's Office because it is a private corporation and not a state agency. Although Affiliated is a private corporation, it is under contract to provide certain services to the Department of Human Services. It is in regard to these particular services that the Attorney General is representing Affiliated. Plaintiffs' argument is disingenuous, especially since they characterized Affiliated as "contractual employees of the State of Illinois" in their ...

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