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Richard G. Webb v. Larry Phillips

October 16, 2012

RICHARD G. WEBB, PLAINTIFF,
v.
LARRY PHILLIPS, SHAN JUMPER, JULIE OBERHAUSEN, EUGENE MCADORY, AIMEE WILCZYNSKI, ROBERT OLT, GUY GROOT, AND JENNIFER KING,
DEFENDANTS.



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

Tuesday, 16 October, 2012 04:13:24 PM Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se, is detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. He seeks visitation with his minor grandchildren, nieces, and nephews.

On December 30, 2011, the Court dismissed Defendants Phillips and McAdory in their individual capacities, but they remain as Defendants in their official capacities for the purpose of injunctive relief. The Court also denied the motion for summary judgment by the remaining Defendants, concluding that Defendant Groot's affidavit was too conclusory to determine whether the denial of visits with minors was rationally related to a legitimate objective such as safety or rehabilitation. The Court ordered Defendants to file a supplemental motion for summary judgment which is now before the Court.

After careful consideration of the parties' submissions, the Court concludes that Defendants have demonstrated that the restriction is rationally related to legitimate concerns of safety and rehabilitation. Defendants have further demonstrated that the decision was the product of the exercise of professional judgment, and that the factors in Turner v. Safley, 482 U.S. 78, 89 (1987) weigh in their favor. Accordingly, the supplemental motion for summary judgment must be 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(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.

FACTS

Plaintiff was detained under the Illinois Sexually Violent Persons Act in 1999, after a state court judge found probable cause that Plaintiff will be adjudicated a sexually violent person under Illinois law. He is currently detained in the Rushville Treatment and Detention Center. Nearly thirteen years after the probable cause finding, Plaintiff still has not had a trial on whether he actually is a sexually violent person, though 725 ILCS 207/30(c) requires an adjudication within 120 days of the probable cause finding, absent Plaintiff's consent or good cause. The reason for the delay is not in the record. Plaintiff does not challenge the delay here, and, in any event, such a challenge would belong in Plaintiff's detention hearings, appeals, or in a federal habeas action.

What Plaintiff does challenge is that he is not permitted visitation with any of his minor relatives-his grandchildren, nieces, and nephews. This decision was made by Defendant Groot, who was the leader of Plaintiff's clinical "treatment team" at the facility, and by Stephen Hansen, a licensed professional counselor who was Plaintiff's primary therapist in 2009. Groot and Hansen aver that other members of the team also participated in the decision, but no affidavits were presented by the other team members, and their signatures are not on the denial.

In 2006, Plaintiff was denied a request to visit his minor grandchild, and in 2009, Plaintiff was denied a request to visit two minor nephews and a minor niece. Defendants focus on the 2009 request, and Plaintiff does not to appear to have made any requests after that date. However, a fair reading of the record suggests that any future requests would be futile because Plaintiff's restriction on visits with minors remains in place.

According to Stephen Hansen, Plaintiff's former primary therapist, Plaintiff was denied visits with his minor relatives because of Plaintiff's criminal and sexual history, Plaintiff's refusal to consent to sex offender treatment, and Plaintiff's refusal to take responsibility for his actions. Mr. Hansen avers that, though Plaintiff's minor nephews may not fit Plaintiff's "victim profile," the nephews might still be a target:

[I]t is not uncommon for a person with the mental disorder suffered by the Plaintiff to abuse irrespective of sex or age. In fact, Mr. Webb's diagnosis is "Paraphilia Not Otherwise Specified, Sexually Attracted to Non-Consenting Females, Nonexclusive type." Nonexclusive type refers to the fact that Mr. Webb is not solely attracted to non-consent females. Mr. Webb also considers himself a bi-sexual. (Hansen Aff. ΒΆ 15, d/e 60-1.) Mr. Hansen further avers that Plaintiff "refused to complete the Penile Plethysmograph evaluation (PPG) which would have provided insight as to what triggers his sexual arousal. Without this information there was a significant risk that Plaintiff could sexually abuse children irrespective of age and sex if ...


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