The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Friday, 30 December, 2011 12:43:23 PM
Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se, is detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. He challenges the refusal to allow him visitation with his relatives who are minors. Before the Court are Defendants' respective motions for summary judgment.
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(a). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the non-movant "cannot produce admissible evidence to support the [material] fact." Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the non-movant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists. Id.; Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). "In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the light most favorable to the non-movant, with material factual disputes resolved in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the non-movant. Id.
In December 1998, Plaintiff was sentenced for aggravated criminal sexual abuse of an unrelated female minor between the ages of 13 and 16. Plaintiff testified in his deposition that this crime was essentially "statutory rape" because the female was 16 years old and had consented. (Plaintiff's Dep. p. 43). Plaintiff was released from prison in September 1999 and then detained in the custody of the Department of Human Services pursuant to the Illinois Sexually Violent Persons Act. Plaintiff testified in his deposition that he had been convicted in New York for a similar offense involving consensual sex with an unrelated 17-year-old female. Defendants offer no further information about Plaintiff's sexual crimes, so the Court accepts Plaintiff's version of events for purposes of this order only. Plaintiff has also been convicted of a felony battery in Indiana, but there is no indication that crime was sexually motivated.
Since the Fall of 1999, Plaintiff has been in the state's treatment and detention facility, except for a seven month stint in prison for assaulting a guard at the treatment facility. (Plaintiff's Dep. p. 11-12). He is now detained in the Rushville Treatment and Detention Facility. The record is not clear on whether Plaintiff has yet been civilly committed as a sexually violent person or is being held in custody pending those proceedings. Plaintiff testified in his deposition that he was "still fighting" his commitment proceedings. (Plaintiff's Dep. p. 50); see also People v. Webb, 393 Ill.App.3d 478 (3rd Dist. 2009)(rejecting Webb's challenge to being remanded to DHS and noting that Webb had not yet been committed).
To obtain visitation privileges at the facility, a resident must submit a request listing his desired visitors, his relationship to them, and disclosing whether any of the visitors are minors. According to the DHS regulations attached to Plaintiff's response, the "Visitors Review Team . . . determine[s], from security and clinical perspectives, the appropriateness of the requested visitor." (d/e 44, p. 24-25). The regulations provide that the members of the Visitors Review Team are administrative, clinical, and security employees appointed by the Director of the facility. (d/e 44, p. 24). In practice, however, the resident's clinical treatment team first reviews the request. If the clinical team denies the visit, "a TDF official will not overturn the treatment team's denial of a resident's request to visit with a minor." (d/e 41-1, ¶ 6). If the clinical team approves the visit, the request is then reviewed by the security director or the program director.
Plaintiff is permitted to have visits from adult friends and family, but not from minors, even minors related to him. Plaintiff's children all appear to be adults, but he has eight minor grandchildren. Whether Plaintiff has minor nephews and nieces is unclear. At one point in his deposition, Plaintiff testified that he did not have minor nieces and nephews, but other parts of the record seem to indicate that he does. ...