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Tunget v. Smith

February 25, 2010


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

Memorandum Opinion and Order

Before the court are the defendants, Anderson Freeman (sued as Unknown Program Administrator) and Brian Thomas's summary judgment motion brought pursuant to Federal Rule of Civil Procedure Rule 56 [35] and the plaintiff's response [41].


Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment .. Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.


Steve Tunget is civilly committed to the custody of the Illinois Department of Human Services ("Department") pursuant to the Sexually Violent Persons Commitment Act, 725 Ill. Comp. Stat. Ann. 207/1 et seq. (West 2008) ("SVP Act"). The SVP Act effectuates the indefinite civil detention of individuals who have been convicted of a sexually violent offense and who have been found to be "dangerous because [the person] suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence" again. 725 ILCS 207/5(f). In this civil rights lawsuit, Tunget challenges the determination of his clinical treatment team that it was clinically contraindicated for him to retain photographs of his minor stepdaughter and for his minor stepdaughter to visit him because she was similar in age to his victims.

The defendants assert that Anderson Freeman, the deputy director for forensic services, nor Brian Thomas, the assistant program director, made the decision to terminate the visitation rights of Tunget's stepdaughter or to confiscate photographs of Tunget's stepdaughter. Nevertheless, Tunget seeks to hold Freeman and Thomas liable for refusing to uphold Tunget's grievance seeking reversal of the clinical treatment team's decision. Defendants move for summary judgment on the following grounds. First, Defendants Freeman and Thomas cannot be held liable because Tunget does not have a constitutional right to have his grievances upheld. Second, Defendants Freeman and Thomas are entitled to qualified immunity.

Undisputed Material Facts

1. Tunget is civilly committed at the Rushville Treatment & Detention Facility ("Rushville Facility") pursuant to the SVP Act. (Defs.' Ex. A; Thomas Aff., ¶ 5.)

2. Defendant Thomas is employed by the Department as the assistant program director at the Rushville Facility. (Defs.' Ex. A; Thomas Aff., ¶ 1.)

3. Defendant Thomas assists in the overall operations of the Rushville Facility, including fiscal management, personnel, security, and the delivery of programs and services to residents. Defendant Thomas is also responsible for the operation of the rehabilitation department, business office, and engineering at the Rushville Facility. (Defs.' Ex. A; Thomas Aff., ¶ 1.)

4. Defendant Freeman is employed by the Department as the deputy director for forensic services. (Defs.' ...

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