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Keyes v. Phillips

August 12, 2009


The opinion of the court was delivered by: Harold A. Baker United States District Judge

Order on Petition to Proceed In forma Pauperis

The plaintiff is being held at Rushville Treatment and Detention Center. He seeks leave to proceed in forma pauperis on this case.

The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, the court must dismiss cases proceeding in forma pauperis "at any time if the court determines that the action fails to state a claim." 28 U.S.C. § 1915(e)(1). Accordingly, the court grants leave to proceed in forma pauperis only if at least one federal claim is stated.

Fed. R. Civ. P. 8 requires a complaint to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Factual allegations are accepted as true and need only give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007)(other citation omitted). However, the factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level' . . . ." Id., quoting Bell Atlantic, 127 S.Ct. at 1965, 1973 n. 14. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009), citing Twombly, 127 S.Ct. 1955. The court keeps in mind, however, that pro se pleadings are construed liberally. Haines v. Kerner, 404 U.S. 519 (1972).


On January 10, 2008, the plaintiff was locked in a secured waiting room with another resident, with no staff present. The other resident asked the plaintiff why the plaintiff had been avoiding him and when "he could get a shot of that ass." The plaintiff stood up and moved as near to the window as he could. The other resident then grabbed and groped the plaintiff's buttocks. The resident has a history of committing assaults on other residents.

The plaintiff reported the incident to Defendant Miller, who wrote an incident report for inappropriate sexual advancement. The plaintiff feels that Miller minimized the incident by characterizing it as such, instead of an assault or sexual abuse. He alleges that the label was to preserve the facility's reputation and limit liability.

The plaintiff discussed the incident at core group treatment therapy. Other group members expressed their support for the plaintiff and their belief that something should be done. Defendant Miller expressed her belief that the plaintiff had brought it on himself, because he had been involved in sexual joking six months before, in the cafeteria with different residents.

The plaintiff has been forced to room with sexually violent persons without a chance to give his input. When he has put in requests for room changes because of his roommate's sexual advances or threats, those requests have either been ignored or there has been a long delay in responding.

The plaintiff was not treated with dignity in regards to the incident, nor was the incident taken seriously and the incident was not investigated. The plaintiff asked the defendants for help but was not given any meaningful help. He received no counseling or therapy to help him deal with the incident. The plaintiff's family called, but the defendants still took no action and Defendant Clayton got angry. Defendant Clayton told the plaintiff that nothing can be done unless a staff person sees that assault. As a result of the defendants' non-action and portraying the plaintiff as "asking for it", the plaintiff suffered verbal assaults and threats of physical attacks. The plaintiff alleges that he has not been provided a safe environment in which his concerns over sexual assault are addressed appropriately. The plaintiff believes that attacks are underreported because of the staff's attitude. The facility needs a "no means no" policy.


The plaintiff's allegations are analyzed under the due process clause of the Fourteenth Amendment since he is a civil detainee, not a convicted prisoner. Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005)(status of person awaiting trial for civil commitment under Sexually Violent Persons Act was comparable to pretrial detainee). The Seventh Circuit has stated that the Fourteenth Amendment protections are "'at least as great as the protections available to a convicted prisoner under the Eight Amendment.'" Tesch v. County of Green Lake, 157 F.3d 465, 473-73 (7th Cir. 1998), quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). However, the Seventh Circuit has also stated that "'there is little practical difference between the two standards. Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001), citing Weiss v. Cooley, 230 F.2d 1027 (7th Cir. 2000).

The defendants violate the plaintiff's constitutional rights if they are deliberately indifferent to a substantial risk of serious harm to the plaintiff's health or safety. The plaintiff must show that a "substantial risk of serious harm" existed and that the defendants subjectively disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). A generalized knowledge of danger or vague complaints is not enough. Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002)(plaintiff's statement to officers that he was "having problems" and needed to be moved did not put sheriff on actual notice of specific risk of sexual assault); Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997)(summary judgment granted to defendants where plaintiff did not specifically seek protection from inmates who assaulted him, even though he had been assaulted before by different inmates).

The court does not believe that the plaintiff has stated a claim for deliberate indifference to the resident's groping of the plaintiff's buttocks and sexually suggestive remarks on January 10, 2008. The plaintiff makes a good point that the resident's behavior should be taken seriouly and should not be tolerated, and also that residents should not be left unsupervised in a locked room. However, the court does not believe that one isolated incident of groping one's buttocks and sexually suggestive comments arises to the kind of serious harm that the constitution seeks to prevent. Even if it is, there ...

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