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Michael T. Koster v. Dr. A. Jelinek

August 3, 2011

MICHAEL T. KOSTER, PLAINTIFF,
v.
DR. A. JELINEK, MR. BOBBY LEEBOLD, MS. ANITA PAYNE, DEFENDANTS.



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

E-FILED Wednesday, 03 August, 2011 05:13:29 PM Clerk, U.S. District Court, ILCD

Order

The plaintiff is detained at Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq.. He pursues First Amendment claims for denial of his access to the courts, free speech, and retaliation for exercising First Amendment rights. The defendants have moved for summary judgment, which is granted for the reasons below.

Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(1). Genuine factual disputes are resolved in the non-movant's favor, and reasonable factual inferences are drawn in favor of the non-movant. 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)); Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). If the movant shows that "there is an absence of evidence to support the nonmoving party's case[,]" the non-movant must come forth with competent, admissible evidence to demonstrate a material factual dispute for trial, not simply rest on pleadings and allegations. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Fed. R. Civ. P. 56(c)(1)(B).

Facts

At times relevant, defendants Jelinek and Leebold worked as clinical therapists at Rushville Treatment and Detention Center. Jelinek has earned a Doctorate of Psychology from Forrest Institute of Professional Psychology, and Leebold has earned a Master of Social Work from the University of Illinois at Urbana-Champaign.

Jelinek was the plaintiff's primary therapist from September 2009 to January 11, 2010.

During that time, the plaintiff was a member of "core group"-a group therapy treatment-that was facilitated by Jelinek and Leebold. The group met ten times a week, for a total of 15 hours per week. A group member was required to notify the facilitator if he was going to miss a session or be late.

From November 9, 2009, to January 5, 2010, the plaintiff missed core group therapy 16 times. He was late four times, twice took a "lengthy break" in the middle of the session, and twice left early. The plaintiff does not dispute that "[i]t is always permissible, and an excused absence, for any resident to attend legal affairs that arise," provided that the resident informs the facilitator before the absence.

On December 15, 2009, the plaintiff was 30 minutes late for core group therapy. He had been attending an in forma pauperis review hearing before this court in Fisher v. Williams, 09-3303, a case involving an alleged ban on sharing legal work, which includes Jelinek and Payne as defendants. The plaintiff does not dispute that he did not give prior notice to the group facilitators that he would be late. When the plaintiff arrived at group therapy late, he interrupted a discussion regarding the rules of the group. Specifically, Defendant Leebold was announcing that residents would no longer be allowed to take notes during group, which included writing about anything dealing with the courts or legal system. According to the plaintiff, Leebold or Jelinek told the group that "Residents that write about the law while in group are engaging in 'criminal thinking.' This will be noted in the Resident's Progress Notes and [] sent to the evaluators, which may keep them here . . . longer. Rather, legal discussion or writing about the law are to be done on the housing unit only." (d/e 23-1, p. 1). According to the plaintiff, Leebold told the plaintiff that he had been irresponsible for being late to group. The plaintiff "asked whether the discussion was part of a resident's focus time, or if it was a time for group processing." Leebold refused to answer the question, so the plaintiff put the same question to Jelinek. Jelinek warned the plaintiff that his attempt to manipulate by using the "tactic" of "splitting" was not going to work. The plaintiff then asked Leebold if Leebold was ever going to answer the question. At this, Jelinek had security escort the plaintiff from group. (d/e 23-1, p. 1). The plaintiff does not dispute that he had repeatedly refused to stop his disruptive behavior despite the facilitators' orders and was raising his voice, demanding that his question be answered. (d/e 20, ¶ 25). He asserts that his actions during group were only his attempt to be "transparent," meaning truthful and forthcoming with one's feelings as encouraged by the facilitators. He does not dispute, though, that he did act in the way stated by the defendants.

The plaintiff also does not dispute that, on December 21, 2009, Jelinek told the plaintiff that his behavior in group was creating an adversarial environment, and that his "threats of filing grievances and lawsuits against facilitators during core group sessions would be considered threats and intimidation." He does not dispute that he was "specifically advised . . . that he could write grievances and lawsuits, but that the threats of them during core group sessions would no longer be tolerated." (d/e 20, ¶ 29; d/e 23, ¶ 29).

A behavioral contract plan was drafted for the plaintiff to outline the conditions of his continued participation in group. The plan cited his "continued absences and ongoing use of tactics to disrupt group process and negatively impact his treatment progress." (d/e 23-2, p. 6). The contract cited "[o]ther problematic behaviors which contribute to an unhealthy and adversarial group environment and barriers to treatment include: 1) not being prepared for focuses; 2) threats and intimidation toward facilitators: i.e., Attack, Power and Control tactics, writing facilitator behaviors and words, etc.)." (d/e 23-2, p. 6). The plan required the plaintiff to stop his tardy and spotty attendance, to be prepared, and also stated:

3. I understand that further writing in journals during group about the facilitator's behavior and words creates a hostile and adversarial work/group environment, is considered threats and intimidation and will not be tolerated. Furthermore, I understand that continued threats of lawsuits and grievances against the ...


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