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John D. Keyes, Jr v. Larry Phillips et al

September 2, 2011

JOHN D. KEYES, JR., PLAINTIFF,
v.
LARRY PHILLIPS ET AL., DEFENDANTS.



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

E-FILED

Friday, 02 September, 2011 05:43:36 PM Clerk, U.S. District Court, ILCD

Order Granting Summary Judgment

The plaintiff is being held at Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq.. He pursues a due process claim regarding deliberate indifference to pervasive sexual harassment by residents Daniels, Shanklin, and "K.E.N.", and deliberate indifference to the risk of sexual assault/battery presented by resident Daniels. For the reasons below, the defendants' motions for summary judgment are granted.

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

These facts are set forth in the light most favorable to the plaintiff, as they must be on summary judgment.

Resident Daniels

The plaintiff arrived as a resident at Rushville Treatment and Detention Center in April 2007. Shortly thereafter another resident in the plaintiff's unit, Ray Daniels, began verbally harassing and berating the plaintiff with sexual comments and innuendoes. For example, in June 2007, while the plaintiff was in the shower, Daniels yelled to the plaintiff from the dayroom, asking if the plaintiff needed any help taking his shower. The plaintiff complained to the security therapist aides in the unit and to others, but nothing was done. The plaintiff tried to ignore Daniels and began avoiding the dayroom and other places where he might have to interact with Daniels. At that point, however, the plaintiff did not fear for his physical safety as Daniels had not made any physical advancements. However, in July 2007, when the plaintiff was alone in his room with the door shut, Daniels opened the door, entered the room and asked the plaintiff, "When are you going to quit teasing me?" The plaintiff told Daniels to go away and leave him alone, but Daniels replied that he was not going to go away and leave the plaintiff alone any longer. Daniels then took steps towards the plaintiff, at which point the plaintiff yelled at Daniels and pushed him. Two other residents came to the plaintiff's aid and removed Daniels from the plaintiff's room.

The July incident caused the plaintiff to fear that Daniels intended to sexually assault him. The plaintiff reported the incident to several of the defendants but nothing happened immediately. In September 2007, the plaintiff was moved to a different unit, greatly reducing his interactions with Daniels. However, several months later, in January 2008, the plaintiff was escorted to a podiatrist appointment, where he discovered Daniels in the waiting room. The plaintiff told the escorting guard (Defendant Moody) of his problems with Daniels, telling Moody that he did not want to be left in the waiting room with Daniels. The guard gave the plaintiff two choices: sit in the waiting room or refuse medical attention and return to his room. The plaintiff did not want to wait another two or three months for an appointment, so he chose the former, reasoning that Daniels would probably not try anything since there were several other residents in the waiting room. The guard then locked the residents in the waiting room and left. Anyone walking by could see into the waiting room through its window, but there were no guards in the waiting room. When the line in the waiting room dwindled to three residents (Daniels, the plaintiff, and another), Daniels scooted a chair next to the plaintiff and started whispering in the plaintiff's ear. The plaintiff leaned as far away as possible, and then got up to move, but Daniels grabbed the plaintiff on the arm and squeezed his butt. The plaintiff backed up against the door and told Daniels to "get the fuck away." Daniels desisted, and a few minutes later the plaintiff was called for his appointment. The plaintiff had no further encounters with Daniels, who was released in the Summer of 2008.

Resident Shanklin

In or around June 2007, the plaintiff worked in the dietary for two weeks. During his work there, the plaintiff was repeatedly subjected to sexual comments and sexual jokes at the plaintiff's expense by another resident working in dietary, Shanklin. For example, Shanklin made "nice ass" comments to the plaintiff, and other security guards chimed in, one wondering out loud how "deep [the plaintiff] could take it" and another saying, "It is okay with me if you guys want to go back behind the dishwasher. . . ." (Plaintiff's Dep., d/e 81-2, p. 84). The following week Shanklin put his hand in front of the plaintiff's crotch but did not touch the plaintiff. One time, Shanklin swatted the plaintiff on the butt with a pan. Id. at 86-87. This all occurred in front of guards, who did nothing or played along.

The plaintiff's assignment to dietary lasted only two weeks, and he had no further notable problems with Shanklin until about two years later when the plaintiff and Shanklin were put in the same therapy group. The plaintiff informed his primary therapist of his history with Shanklin, asking to change therapy groups because he was not comfortable with Shanklin. The therapist denied the request. During one of the group therapy sessions, Shanklin admitted to harassing the plaintiff in dietary, but rationalized that it was "his understanding . . . that if [the plaintiff] didn't like that, then [the plaintiff] would have punched him." (Plaintiff's Dep., d/e 81-2, p. 94). The plaintiff repeatedly asked to move to a different group but the therapist determined that the two could continue in group therapy together. In the therapist's opinion, the plaintiff had not been forthcoming with all the facts and was attempting to manipulate Shanklin out of the ...


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