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Walter Pegues v. Alfreda Kibby

December 13, 2011

WALTER PEGUES, PLAINTIFF,
v.
ALFREDA KIBBY, SHAN JUMPER, AND FORREST ASHBY DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Tuesday, 13 December, 2011 11:21:23 AM Clerk, U.S. District Court, ILCD

OPINION

Plaintiff Walter Pegues, detained in the Rushville Treatment and Detention Center ("Rushville") has filed a Complaint [1], pursuant to 42 U.S.C. § 1983, against Defendants Shan Jumper and Forrest Ashby. Alfreda Kibby was terminated as a defendant on October 28, 2011, pursuant to Fed. R. Civ. P. 25(d). Plaintiff is detained by the Illinois Department of Human Services, pursuant to the Illinois Sexually Violent Persons Act. A Merit Review Order was written in this case by the Honorable Harold A. Baker allowing Plaintiff to proceed only on a claim that his First Amendment rights were violated. However, this Court takes judicial notice of a memorandum filed in this district in case number 11-CV-3337, Schloss, et al., v. Ashby, et al. See Exhibit 1, the program director's memo, attached to the Complaint [1] in 11-CV-3337. Having reviewed that memorandum the Court concludes, as discussed infra, Plaintiff has failed to state a claim upon which relief may be granted.

ALLEGATIONS

In his Complaint, Plaintiff alleges that although all Illinois Department of Human Services state mental health facilities are subject to the rules of Title 59 of the Illinois Administrative Code governing mental health, the defendants do not fairly apply the rules of Title 59. Plaintiff is not allowed the benefits and privileges granted to residents at all other state mental health facilities. Specifically, Plaintiff alleges that residents at all other state owned and operated mental health facilities are allowed to own a personal computer, but Plaintiff is not allowed this privilege. Plaintiff claims Rushville is the only facility where residents are not allowed to own a personal computer or laptop. Plaintiff claims that no safety and security concerns exist. He claims that the defendants' act of denying Plaintiff's ability to own a computer does not allow him access to all media. Plaintiff claims the Illinois Department of Human Service's policy to deny Plaintiff the ability to own a personal computer violates his rights under the First Amendment. Plaintiff also claims the defendants have also violated Plaintiff's Fourteenth Amendment rights of equal protection.

ANALYSIS

State Law

First, a violation of state law is not, by itself, a violation of federal law. Guarjardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir. 2010)("[A] violation of state law is not a ground for a federal civil rights suit."). "[T]his court has consistently held that '42 U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations of state laws or . . . departmental regulations . . . ." Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006), quoting Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir.2003). The Court notes that 59 Il ADC 109.20, par. 2, provides that the facility director may restrict the possession or use of computers, peripherals, modems, CDs, disks, software, or other equipment used with the computer for all individuals in a facility, when necessary to protect an individual or others from harm, provided that notice of such restriction shall be given to all individuals upon admission. Further, that Code provides that if it becomes necessary to restrict individuals who did not receive notice of the restriction upon admission, the professional responsible for overseeing implementation of an individual's services plan may, with the approval of the facility director, restrict the right to property when necessary to protect the individual or others from harm. However, a federal court is not an enforcer of state laws and regulations. Accordingly, Plaintiff states no federal claim to the extent he alleges that Defendants are violating the spirit or text of Title 59 of the Illinois Administrative Code.

Access to Court

Plaintiff's allegations regarding denial of access to the court do not state a claim. An access to the courts claim arises only when a plaintiff suffers an "actual injury" from the inability to pursue a non-frivolous claim. Lewis v. Casey, 518 U.S. 343, 351 (1996); May v. Sheahan, 226 F.3d 876, 883 (7th Cir. 2000). Plaintiff identifies no legal action in which he suffered any prejudice.

Equal Protection

As to the Fourteenth Amendment Equal Protection claim, Plaintiff is not similarly situated to persons confined for treatment in other state mental health facilities. Plaintiff is in Rushville because he has been "convicted of a sexually violent offense, . . .[and is] dangerous because [he] . . . suffers from a mental disorder that makes it substantially probable that . . . [he] will engage in acts of sexual violence." 725 ILCS 207/5(f). Persons confined in other state mental health facilities may also be dangerous to themselves or others, but they do not fit the statutory definition for sexually violent persons. If they did, they would be in Rushville. See Thielman v. Leean, 282 F.3d 478, 483 (7th Cir. 2002) ("facilities dealing with those who have been involuntarily committed for sexual disorders are 'volatile' environments whose day-to-day operations cannot be managed from on high."). In short, there is no equal protection claim because Plaintiff is not similarly situated to mentally ill persons held in other mental facilities. Additionally, Plaintiff's alleged differential treatment is rationally related to the fact that he is confined as a sexually violent person. See Thielman, 282 F.3d at 485 (upholding restraints ...


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