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Tunget v. Smith

March 19, 2010

STEVE TUNGET, PLAINTIFF,
v.
RANDALL SMITH, ANITA PANYE, BRIAN THOMAS AND UNKNOWN PROGRAM ADMINISTRATOR, DEFENDANTS.



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' summary judgment motion [39] and the plaintiff's response*fn1 [42].

Standard

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.

Background

Plaintiff has been civilly committed to the custody of the Illinois Department of Human Services (..DHS..) pursuant to the Illinois Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.) (the ..SVP Act..). Plaintiff alleges that various DHS Defendants and the Liberty Defendants Randall Smith and Anita Payne, violated his constitutional rights by confiscating certain photographs depicting a minor child and that Defendants precluded him from having visitations with the minor. Given the minor..s status, the minor, ..T.H..., will not be referred to by her name. Smith and Payne argue that they are entitled to summary judgment because the confiscation of the photographs in question and denial of visitation privileges falls within accepted professional judgment as defined by Youngberg v. Romeo, 457 U.S. 307 (1982) and subsequent cases applying the professional judgment standard to cases involving civilly committed ..sexually violent persons... Alternatively, Defendant Smith argues that he is entitled to summary judgment because Defendant Payne (rather than he), as his supervisor, determined that the photographs should be confiscated and the visitor removed from the approved visitor list. Last, Smith and Payne argue that they are entitled to qualified immunity.

Undisputed Material Facts*fn2

1. Defendant Anita Payne is a Licensed Clinical Social Worker employed by Liberty Healthcare Corporation (..LHC..) who has been employed by LHC at the DHS operated Rushville Treatment and Detention Facility (the ..Rushville TDF..) since August of 2006. Prior to this date, she was employed for approximately a year and half at the State of Missouri..s treatment and detention facility for sexually violent persons. See Payne Affidavit ¶ 1.

2. LHC is a contractor with the Illinois Department of Human Services ....DHS..). Pursuant to annual contracts, LHC provides sex offender treatment to ..sexually violent persons.. (..SVPs..) civilly detained or committed by DHS pursuant to the Illinois Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.) (the ..SVP Act..) at the Rushville TDF. See Payne Affidavit ¶ 2.

3. Defendant Payne is currently employed by LHC as a "Team Leader." As a Team Leader, she supervises an assigned group of Clinical Therapists. A description for the position of Team Leader is attached to Defendant Payne's Affidavit as Exhibit A. See Payne Affidavit ¶ 3.

4. Among other duties, Team Leaders assist DHS employed security staff and lower level LHC clinical staff in determining whether SVPs committed and/or detained at the Rushville TDF should have certain proposed visitors and photographs prohibited on the grounds that the visitors or photographs are counter-therapeutic. In particular, treatment staff scrutinize issues involving minors. See Payne Affidavit ¶ 4.

5. Defendant Payne has been trained to take a case-by-case approach in determining whether visitors or photographs are counter-therapeutic. In other words, a visitor of a certain age might appropriate for some SVPS but not others. At the same time, certain photographs might appropriate for some SVPS but not others. See Payne Affidavit ¶ 5.

6. In making these determinations, Defendant Payne has followed internal guidelines which are attached as Exhibit B-1. These guidelines were recently provided to residents (in May of 2009) in the form of a Memorandum signed by DHS Facility Director Larry Phillips. See Payne Affidavit ¶ 6.

7. Defendant Payne was taught and has observed, that if an SVP is know or believed to have sexually molested prepubescent children or minor teens, whether related to him or not, it might be counter-therapeutic for that resident to receive and keep photographs of similarly aged individual, regardless of whether the photographs are of ...


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