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Brown v. Smith

United States District Court, N.D. Illinois, Eastern Division

July 16, 2014

DAVID J. BROWN, Plaintiff,

For David J. Brown, Plaintiff: Linton Jeffries Childs, LEAD ATTORNEY, Lawrence P Fogel, Sidley Austin LLP, Chicago, IL.

For Edward Smith, Psy. D., Defendant: Stephen C. Veltman, LEAD ATTORNEY, Scott L Anderson, Pretzel & Stouffer, Chtd., Chicago, IL.

For Service List, Defendant: Illinois Department of Human Services, General Counsel, Chicago, IL.

Page 911


Honorable Edmond E. Chang, United States District Judge.

Plaintiff David Brown brings this suit [R. 18] under 42 U.S.C. § 1983 against Defendant Edward Smith for alleged violations of Brown's right to equal protection under the Fourteenth Amendment.[1] Smith now moves to dismiss the complaint [R. 23] under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Smith's motion to dismiss is denied.

I. Background

In evaluating this motion to dismiss, the Court accepts Brown's factual allegations as true and draws reasonable inferences in his favor. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2079, 179 L.Ed.2d 1149 (2011). In February 1999, Brown was convicted of a sexually violent offense within the meaning of the Illinois Sexually Violent Persons Commitment Act (SVPCA), 725 ILCS 207/1-99. R. 18, Second Am. Compl. ¶ 13. He was sentenced to three years' imprisonment and a consecutive term of two and one-half years of probation. Id. Three days before Brown's mandatory supervised release date, the State filed a petition alleging that Brown was a " sexually violent person" (SVP) under Illinois law and requesting that he be committed under the SVPCA. Id. ¶ 14. Thus, on Brown's mandatory release date, he was transferred from the Illinois Department of Corrections (IDOC) to the custody of the Illinois Department of Human Services (IDHS). Id. ¶ 14.

In January 2000, an Illinois state court found probable cause to believe that Brown was an SVP. Id. ¶ 15. Despite the statutory requirement that Brown receive a trial on the merits of the State's petition within 120 days of the state court's probable-cause finding, see 725 ILCS 207/35(a), Brown did not receive a trial until March 2007. Id. ¶ ¶ 16-17. Following a bench trial, on March 27, 2007, the state court declared Brown an SVP. Id. ¶ 17. One

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year later, the court entered an order committing Brown to the custody of the IDHS for control, care, and treatment until Brown is " no longer" an SVP. Id. ¶ 18.

Section 55(a) of the SVPCA requires the IDHS to prepare and submit to the court a written report on the committed person's mental condition within six months of the initial commitment and at least once every twelve months going forward. 725 ILCS 207/55(a). The IDHS reports must be based on an evaluation by an evaluator approved by the Sex Offender Management Board and must be conducted in accordance with standards developed under the Sex Offender Management Board Act. 725 ILCS 207/55(b). Reports of those evaluations must address whether the committed person (1) suffers from one or more mental disorders which are congenital or acquired conditions affecting the person's emotional or volitional capacity and predisposing him or her to engage in acts of sexual violence, § 207/5(b); (2) whether, due to the committed person's mental disorder(s), it is " substantially probable that [the committed person] will engage in acts of sexual violence," § 207/5(f); and, (3) if the evaluator finds that the committed person suffers from one or more such disorders and that the disorder(s) makes it substantially probable that the committed person will engage in acts of sexual violence, whether the committed person has made sufficient progress to be safely managed in the community by the IDHS under supervised conditional release, § 207/55(a).

The IDHS contracted with Smith, a licensed clinical psychologist, to conduct Brown's initial re-examination. Second Am. Compl. ¶ 19. Smith interviewed Brown over the course of two days and reviewed materials related to Brown's background. Id. ¶ 21. Based on this information, and with the aid of an actuarial risk assessment instrument called STATIC-99, Smith assessed Brown's risk of recidivism as " high." Id. ¶ ¶ 22-25. Brown was surprised by Smith's conclusion because in two previous evaluations--predating Brown's civil commitment order--a different evaluator using the same STATIC-99 instrument had determined that Brown had only a " medium-high" recidivism risk. Id. ¶ 25. The STATIC-99 assessment considers only static risk factors like whether a subject is below twenty-five years old, has ever lived with a lover for at least two years, has committed a current, non-sexual violent offense, and others. Id. ¶ 24. None of these factors had changed since Brown's previous evaluations. Id. ¶ 25.

In 2010, the IDHS again assigned Smith to conduct a re-examination of Brown. Id. ¶ 27. Smith's report stated that Brown declined to participate in the evaluation process and again placed Brown in the " high" risk category for recidivism. Id. ¶ ¶ 27, 30. This time, Smith used an updated instrument called STATIC-99R, which evaluated the same characteristics as STATIC-99 with the exception of one: STATIC-99R placed subjects into four age categories, whereas the original STATIC-99 used only two (over or under age ...

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