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Richard Michael Smego v. Kimberly Weitl

May 10, 2013

RICHARD MICHAEL SMEGO, PLAINTIFF,
v.
KIMBERLY WEITL, PSYD., DEFENDANT.



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

E-FILED Friday, 10 May, 2013 01:59:22 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se and detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis.

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.

LEGAL STANDARD

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).

ALLEGATIONS

Plaintiff's allegations are taken from his Amended Complaint, which is being filed contemporaneously with this order.

Plaintiff is detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. The Act mandates a reexamination every 12 months of whether the detainee "has made sufficient progress to be conditionally released or discharged." 725 ILCS 207/55(a). Pursuant to this statute, the Department of Human Services is required to submit a written report to the state court regarding the detainee's mental condition.

Defendant Kimberly Weitl, a licensed clinical psychologist, conducted a reexamination of Plaintiff in December 2012. Her report is attached to Plaintiff's Amended Complaint. Dr. Weitl recommended in her report that Plaintiff should remain detained in the Rushville Treatment and Detention Facility.

Plaintiff alleges that "Dr. Weitl made numerous false allegation[s] and statements, twisted facts to the point of unrecognizability, and omitted so many essential facts including exculpatory evidence as to render her report an outright lie." (Plf.'s Amended Complaint, p. 3, para. 4.) Plaintiff alleges that Dr. Weitl failed to conduct any independent testing or investigation and spoke to Plaintiff for only five minutes.

Plaintiff maintains that Dr. Weitl's purportedly false report denies Plaintiff a fair hearing in his state court detention proceedings. Further, Plaintiff alleges that Dr. Weitl's false report is used by the Department of Human Services to treat Plaintiff "for illness and mental health issues I do not suffer from forcing me to endure medical ...


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