The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
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).
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.
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
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