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McGee v. Monahan

August 14, 2008


The opinion of the court was delivered by: Judge James B. Zagel


The plaintiff, a civil detainee in the custody of the Illinois Department of Human Services, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff challenges the conditions of his confinement at the Joliet Treatment and Detention Facility, where he was held prior to being transferred to the new installation in Rushville, Illinois. By Memorandum Opinion and Order of September 14, 2007, the court dismissed certain claims pursuant to Fed. R. Civ. P. 12(b)(6). This matter is before the court for ruling on the various defendants' motions for summary judgment as to the plaintiff's remaining claims. For the reasons stated in this order, the motions are granted.


Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Walker v. Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000).

However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted).


The plaintiff is a pretrial detainee, in the custody of the Illinois Department of Human Services while he faces civil commitment pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS § 207/1, et seq. At all times relevant to this action, the plaintiff was housed at the Joliet Treatment and Detention Facility (hereinafter, "TDF").

Plaintiff sues seven employees and contractors of the Illinois Department of Human Services [hereinafter, "DHS"]. The defendants are: (1) Joliet TDF Facility Director Thomas Monahan; (2) Hospital Administrator Carol Vance; (3) resident physician Jovita Anyanwu; (4) nurse Alice Coleman; (5) Addus Health Care, Incorporated; (6) Aramark Correctional Services; and (7) Liberty Healthcare Corporation.

Together with their summary judgment motions, the defendants served on the plaintiff the required notice under Local Rule 56.2 (N.D. Ill.), advising the plaintiff what he needed to do to contest the motions, and specifically what he needed to do to dispute the defendants' respective statements of uncontested facts. (See Notice to Pro Se Litigant Opposing Motion for Summary Judgment, document nos. 87, 112, 114.) Despite this, the plaintiff has not submitted a statement of contested facts with citations to the record; instead, he simply elaborates on or equivocates about certain facts in his opposing brief, without referencing any supporting documentation. But unsupported statements in a brief are not evidence and cannot be given any weight. See, e.g., Johnson v. Spiegel, Inc., No. 02 C 0680, 2002 WL 1880137, at *4 (N.D. Ill. Aug. 15, 2002) (Pallmeyer, J.), citing In the Matter of Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985).

The plaintiff's failure to respond to the defendants' statements of material facts as directed warrants disregard of any contrary assertions he makes in his briefs. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003):

Local Rule 56.1's enforcement provision provides that when a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes of the motion. . . . We have consistently held that a failure to respond by the non-movant as mandated by the local rules results in an admission. See, e.g., Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir. 2000). A district court is not required to "wade through improper denials and legal argument in search of a genuinely disputed fact." Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993).

The court need not "scour the record to make the case of a party who does nothing." Greer v. McCurry, No. 02 C 4326, 2003 WL 21826549, *6 (N.D. Ill. Aug. 5, 2003) (Zagel, J.)., quoting Johnson v. Gudmundsson, 35 F.3d 1104, 1116, n. 9 (7th Cir. 1994); see also Tatalovich v. City of Superior, 904 F.2d 1135, 1139 (7th Cir. 1989) (the court is not required to comb the record for evidence contradicting the moving party's statements in support of its motion for summary judgment). "Rule 56 demands something more than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted." McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989.) "Summary judgment is the 'put up or shut up' moment in a lawsuit. Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (citations omitted).

The following facts are therefore undisputed for purposes of the defendants' motions for summary judgment:

On October 21, 2005, the date of the plaintiff's mandatory release from prison, he was taken to the Joliet TDF rather than being released outright. (Complaint, p. 6.) The plaintiff was informed that he was being detained as a "sexually violent person" pursuant to 725 ILCS § 207/1. Id. Under that statute, a sexually violent person is someone who has been convicted of a sexually violent offense (or has been found not guilty of a sexually violent offense by reason of insanity) and "who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." 725 ILCS § 207/5(f). The plaintiff was held at the Joliet TDF from October 21, 2005, until August 19, 2006, when he was transferred along with all other detainees to the DHS's new facility in Rushville, Illinois. (Complaint, pp. 6-7; Liberty's Exhibit B, Deposition of Juan McGee, p. 6.)

The plaintiff lived in a newer housing unit for the first two months of his stay at the Joliet TDF. (Complaint, pp. 6-7; Plaintiff's Depo., p. 7.) The plaintiff understood that the new housing unit was limited to residents who participated in sex offender treatment. (Ibid.) The plaintiff also understood that he would have been permitted to remain in the new housing unit if he had consented to sex offender treatment. (Ibid.) However, because the plaintiff refused to consent to sex offender treatment, he was placed in an older building. (Ibid.)

Facts Relating to Liberty Healthcare Corporation

The Illinois Department of Human Services, and not Liberty Healthcare Corporation, operated the Joliet TDF. (725 ILCS 207/50; Liberty's Exhibit C, Declaration of Shan Jumper, ¶ 4. Shan Jumper, an employee of Liberty Healthcare and the TDF's Associate Clinical Director (later, Director), did not have any responsibilities with regard to the maintenance or operation of the Joliet TDF's physical plant, pest abatement, water supplies, and/or the facility's heating and cooling systems. (Jumper Affidavit, ¶¶ 6-7.)*fn1

Liberty and its employees (psychologists and therapists) provide sex offender treatment to individuals who consent to receive sex offender treatment under the SVP Act. (Id., ¶ 2.) In his role as Clinical Director, Jumper has and had no power to direct DHS staff how to maintain the physical plant. (Id., ¶ 8.) Jumper did not and does not contract with outside vendors in connection with plant maintenance. (Id., ¶¶ 9, 10.)

Jumper's common practice and custom is to refer any written resident complaints to the resident's assigned primary therapist. (Id., ¶ 11.) Jumper undertook this practice as he found it was impossible for him to personally respond to or follow up with every resident complaint he received. (Id.)

Dr. Jumper has no independent recollection of whether the plaintiff ever wrote to him to complain about his housing conditions. (Id., ¶ 20.) If the plaintiff did write to Jumper, Jumper most likely would have skimmed the letter and then forwarded it to the plaintiff's primary therapist for follow-up. (Id., ¶ 22.) Jumper would have likewise forwarded a request for a face-to-face meeting to the plaintiff's primary therapist. (Id.)

The Joliet TDF has and had administrative grievance procedures in place. (Id., ¶ 21; see also 59 Ill. Admin. Code § 299.820.) Grievances are initially reviewed by a grievance examiner, who investigates the grievance and makes a recommendation. (Jumper Affidavit, ¶ 21.). The TDF's facility director, and not its clinical director, generally renders the final decision. (Id.) Jumper has no role in the grievance process unless he is called upon to give an opinion about a particular matter. (Id.)

Jumper never observed housing conditions to be less than well maintained, sanitary, and otherwise hospitable. (Id., ¶ 23.) Housing units were sprayed at least twice a month by outside contractors. (Id.; Plaintiff's Depo., pp. 38-40.) The maintenance staff regularly made repairs in resident living quarters. (Jumper Affidavit, ¶ 23.)

The maintenance staff routinely took temperature readings for quality control purposes. (Id., ¶ 23.) The maintenance staff brought large air circulation fans into the housing units during the summer months and the staff provided residents with additional blankets during the winter months. (Id.; Plaintiff's Depo., pp. 30-31.) Although the older housing units at the Joliet TDF did not have central air, cooler air was circulated through the day rooms by large, built-in, overhead circulation units. (Jumper Affidavit, ¶ 23.)

The plaintiff was placed on "closed management status" (which the court gathers means unit restriction) for three, 30-day periods as a result of committing three consecutive rule violations. (Plaintiff's Depo., pp. 53, 77-78.) When the plaintiff was on unit restriction, he could not leave his living unit, but he had access to the day room. (Id., p. 53.)

Normally, even residents on closed management status due to rule violations were permitted outdoor exercise. (Id.) However, the plaintiff contends that he was not allowed to exercise outside of his room for ninety days. (Id., p. 75.) The plaintiff chose not to exercise in his room because he thought the ventilation was inadequate. (Id., p. 51.) The plaintiff did not suffer any physical injuries as a result of not exercising outside for ninety days. (Exhibit B to Defendant Monahan's Motion for Summary Judgment, Depo. of Juan McGee, p. 76.)

Neither Jumper nor any Liberty employee ever revoked the plaintiff's exercise privileges, and Jumper was not aware of any exercise restriction ever being imposed upon the plaintiff. (Id., ¶¶ 29, 30.) The Behavior Management Committee did not issue restrictions on resident exercise when a resident was found to have violated a facility rule or order. (Id., ¶ 30.) If a resident were ever denied exercise for security reasons, that decision would have been made by the TDF's Security Director or Facility Director, DHS employees. (Id.)

With regard to each conduct report, the plaintiff was afforded a hearing before the Behavior Committee to give his account of what happened. (Id., p. 55.) The plaintiff received a verbal warning for one rule violation (id., p. 57); for a second rule violation, the Behavior Committee recommended that he join an anger management therapy group. (Id., pp. 58-59.) On a third occasion, the plaintiff was restricted to his housing unit for seven days for failing to wear his yellow jumpsuit. (Id., pp. 59, 62.)*fn2

In the fall of 2004 (before the plaintiff arrived at the Joliet TDF), an expert hired by the American Civil Liberties Union tested the Joliet TDF for health, sanitation, pest, and temperature-related issues in connection with a class action before Judge Harry D. Leinenweber of this court. (Id., ΒΆΒΆ 25-26.) Although the expert did not issue a formal report, it was Jumper's understanding that the expert found no major faults with the physical conditions at the Joliet TDF. (Id.). The fact that Judge Leinenweber and the ACLU expert toured the facility without ...

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