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Jerry L. Mccabe v. Larry J. Phillips

September 26, 2012


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

E-FILED Wednesday, 26 September, 2012 10:55:35 AM

Clerk, U.S. District Court, ILCD


Plaintiff, proceeding pro se, is detained in the Rushville Treatment and Detention Center. On July 13, 2009, Judge Baker allowed Plaintiff to proceed on a due process claim based on the alleged punitive conditions at the facility and on a discrimination claim under the Americans with Disabilities Act. (7/13/09 text order.) On August 31, 2011, Judge Baker dismissed Plaintiff's claims under the Americans with Disabilities Act.

Thus, the only claim before the Court is the restrictive, punitive conditions claim, on which Defendants have moved for summary judgment. After careful consideration of the parties' submissions, the Court concludes that the conditions of which Plaintiff complains do not violate constitutional standards. Different or better ways might exist to run the facility, but that is not the constitutional test. Accordingly, summary judgment is mandated for Defendants.

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 1999, after serving his criminal conviction, Plaintiff was detained in the Rushville Treatment and Detention Center pursuant to a probable cause hearing held under the Illinois Sexually Violent Persons Act, 725 ILCS 207/30. A detainee under this statute is transferred to a facility approved by the Department of Human Services until a trial is held on the petition to detain him. 725 ILCS 207/30(b). Additionally, the transfer is supposed to be to "an appropriate facility for an evaluation as to whether the person is a sexually violent person." 725 ILCS 207/30(c).

According to Plaintiff, he still has not received a trial on whether or not he is a sexually violent person, though nearly 13 years have passed since his initial probable cause hearing. Section 207/35 requires a trial within 120 days of the probable cause hearing, unless Plaintiff consents or good cause is shown. No explanation for the delay is in the record. However, court orders entered in some of Plaintiff's federal habeas actions have concluded that the delay is largely attributable to Plaintiff. McCabe v. Monohan, Appeal No. 07-2996 (7th Cir. 2007, 11/19/07 order affirming dismissal of habeas petition)("The reason McCabe has not yet had a trial is his own dilatory tactics; he has provided no evidence that the state bears any responsibility for the delay."); McCabe v. Budz, 05-CV-014 (S.D. Ill., Judge Stiehl, 12/20/05 order dismissing habeas petition, p. 2, d/e 23)("[A]s petitioner admits, the delay in adjudicating the merits of that case is attributable to petitioner's numerous attempts to challenge his detention under the SVPCA."). The question is irrelevant as far as this case goes: challenges to the fact of detention belong in Plaintiff's state commitment proceedings or in a federal habeas action.

Plaintiff has been housed in DHS detention facilities for sexually violent persons since 1999, first in Sheridan, then Joliet, and, since 2006, in Rushville. No effort is made to separate those waiting for their trials from those already committed. Instead, residents are assigned to housing units according to whether they have consented to treatment. (Williams Aff. ¶ 21, d/e 80-5.) A resident generally has access to a dayroom and his own bedroom, which he typically shares with another resident. About 20-25 residents' rooms border this day room. Meals are served in the day room rather than in the dining room. Residents were initially permitted access to a small outdoor patio attached to their unit, but those patios have been closed for the purported reason of misuse by some residents. (McAdory 4/12/11 memo, Def.'s Ex. H, d/e 80-3.)

Plaintiff contends that he is confined to the day room and his bedroom for 21 to 23 hours every day. However, his own exhibit shows that he has daily access to yard and to the gym for a few hours every day. He can also attend the library, visit the health care unit twice daily for medication, leave the unit to pick up mail, attend commissary weekly, and attend occasional special events off the unit. (Pl.'s Dep. pp. 35, 38, 48, 55; Pl.'s Resp., Description of Daily Activities, d/e 88-2, p. 43.) Also offered off-unit are religious services and studies, art group, racquet sports, team sports, band, and group therapy. (Pl.'s Resp., Ex. B., Daily Activity Schedule, d/e 88-2, pp. 40-41.) Plaintiff has chosen not to participate in therapy, which would present another opportunity for movement and interaction. He refuses to participate in therapy because doing so would require him to admit that he is sexually violent. (Pl.'s Dep. pp. 12, 51-52.)

Since 2000, Plaintiff has been in "responsible A status," which means that he has no record of behavioral problems. (Pl.'s Dep. p. 25, d/e 80-2.) Plaintiff has not had to wear the "black box" when transported outside the facility since he was first brought to the facilities in Sheridan and Joliet. (Pl.'s Dep. p. 106, d/e 80-3.) He has never been in segregation, also known as "close management status," has never been confined to his room for a "cool down," and has never been removed from his room by the tactical team. Id. at pp. 73, 75, 106, 131.

G.E.D. classes are offered at the facility, but no additional educational classes are offered, and no useful vocational training is offered. Defendant Blaesing avers that, "in the past, the Rushville facility has offered a greater amount of educational and vocational opportunities; however, both educational and vocational opportunities have been diminished in recent years due to the diminishing number [of] staff members available to provide instruction. Vocational programs such as floor care and horticulture have existed in the past, but have been dropped due to a lack of staff members to offer instruction in those areas." (Blaesing Aff. ΒΆ 6, d/e 80-6.) While incarcerated in the Illinois Department of Corrections, Plaintiff earned "three associate's degrees and a bachelor's of science from an unaccredited university." (Pl.'s Dep. p. 15, d/e 80-2 p. 15.) In June, 2009, Defendant Phillips denied Plaintiff's request to take a correspondence class ...

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