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Ronald Anthony Levi v. Steven Gaskell

May 15, 2012


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


3:12-cv-03103-SEM-BGC # 7 Page 1 of 9 Tuesday, 15 May, 2012 02:47:37 PM Clerk, U.S. District Court, ILCD


Plaintiff, proceeding pro se and currently detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis on his claim challenging his detention hearing and the constitutionality of 725 ILCS 207/30.

The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim. A hearing was scheduled to assist in this review, but the hearing will be cancelled as unnecessary.


To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief ." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add'l citation omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" Id., quoting Bell Atlantic, 550 U.S. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).


In or around August, 2006, Plaintiff was scheduled for release from the IDOC on mandatory supervision. Instead of being released, Plaintiff was transferred to the Department of Human Services and held in "isolation segregation" for more than 10 days while a petition to detain him pursuant to the Illinois Sexually Violent Persons Act was filed. He contends that this detention impeded his ability to mount a defense to the petition. 725 ILCS 207/30(b) provides that "[i]f the person named in the petition is in custody, the court shall hold the probable cause hearing within 72 hours after the petition is field, excluding Saturdays, Sundays, and legal holidays. The court may grant a continuance of the probable cause hearing for no more than 7 additional days upon the motion of the respondent, for good cause."

A hearing was eventually held on the petition to commit Plaintiff pursuant to 725 ILCS 207/30, which directs the state court to "hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person." Under the Sexually Violent Persons Act, if the state court determines probable cause is present, the court orders that the individual be kept in custody for an evaluation. A trial is supposed to be held no later than 120 days after the probable cause hearing, but the deadline may be extended in certain circumstances. 725 ILCS 207/35(a). According to Plaintiff, the state court judge found probable cause to detain him in August, 2006, but Plaintiff still has not had his trial. (Complaint, ¶ 22). The reason for the delay is not provided.

Plaintiff alleges that, as part of his pretrial detention proceedings, Defendants Gaskell and Leavitt, who are psychologists, wrote a report diagnosing Plaintiff with a mental disorder that is not listed in the Diagnostic and Statistical Manual of Mental Disorders-"paraphilia, not otherwise specified, non-consent." The report was allegedly based solely on Plaintiff's criminal record, and the report's conclusions were false and faulty. The state court judge allegedly improperly relied on this faulty report to find probable cause to detain Plaintiff. Plaintiff further maintains that 725 ILCS 207/30 is facially unconstitutional because the procedural safeguards required by the Supreme Court case of U.S. v. Salerno, 481 U.S. 739 (1987) are lacking.

Plaintiff seeks his immediate release, a declaration that 725 ILCS 207/30 is unconstitutional, and money damages.


Plaintiff's challenges to the psychologists' false evaluation go to the validity of his current detention, challenges which can only be pursued in federal court as a habeas corpus action, if at all. See, e.g., DeWalt v. Carter, 224 F.3d 607, 614 (7th Cir. 2000)(challenges to fact or duration of confinement must be pursued in habeas action, not in an action under 42 U.S.C. ยง 1983). Thus, Plaintiff cannot seek damages ...

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