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Mulder v. Schuyler County Sheriff

United States District Court, C.D. Illinois

March 12, 2015

SCHUYLER COUNTY SHERIFF, et al., Defendants.


MICHAEL M. MIHM, District Judge.

Plaintiff is detained for treatment in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. He 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. ยง 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim.

In reviewing the complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour , 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S. , 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).


Plaintiff is allegedly "one of the smaller residents at the facility, " which, liberally construing his allegations, makes him more vulnerable to sexual harassment and assault by other detainees at the facility.

Plaintiff alleges that he has been forced to room with "other [sexually violent persons who] have all been diagnosed to lack volitional control and be predisposed to commit acts of violence and sexual violence." (Complaint, p. 4.) Plaintiff alleges that he has been sexually assaulted by two different roommates. When resident "E. Smith" roomed with Plaintiff at the beginning of this year, Smith allegedly made sexual advances and sexually touched Plaintiff. After Plaintiff complained, Plaintiff was roomed with resident David Mackel, who also made sexual advances to Plaintiff, grabbed Plaintiff's genitals, and "tr[ied] to force [Plaintiff] into more and more sexual contacts." (Complaint p. 6.) One day in August, 2014, Defendant Morton loudly told Plaintiff in front of the entire housing unit, "If you were not up all night sucking dick, you wouldn't be so tired now." (Complaint p. 5.) Morton's comment allegedly perpetuated and encouraged the continued sexual harassment of Plaintiff by resident Mackel and other residents on the unit. Plaintiff told Defendants Ganz, Schroeder, and Louck about Defendant Morton's comment, but nothing was done.

Plaintiff complained to Defendants Clayton, Hankins, Pennock, Kulhan, Dougherty, Parsons, Rose, Billingsley, Kindhart, Teel, Thomas, Louck, Morton, Schroeder, Ganz, Jumper, Clark, and Deeds about resident Mackel's abuse and harassment. None of these Defendants did anything until August 22, 2014, when Plaintiff was moved to a segregation cell called "special management." While Plaintiff was in segregation, resident Morales slipped a note under Plaintiff's door offering Plaintiff cash in return for sexually abusing Plaintiff. Plaintiff turned the note into security.

Defendant Clayton, who was supposed to be investigating Plaintiff's complaints about the sexual harassment, instead allegedly threatened to have Plaintiff put in jail on false charges if Plaintiff tried to press criminal charges against resident Mackel. Clayton also allegedly told Plaintiff that Plaintiff deserved what he got because Plaintiff is a "faggot.'" (Complaint p. 7.)

As a result of the constant sexual harassment, Plaintiff allegedly suffers from post-traumatic stress disorder-including the inability to function or sleep and constant hand-shaking for days. Defendants Ganz, Schroeder, Louck, and Jumper have refused to provide Plaintiff any mental health treatment for Plaintiff's post-traumatic stress disorder, telling Plaintiff that such treatment is not offered at the facility.


Plaintiff has no constitutional right to have a single room or to room with a resident of Plaintiff's choosing. However, Plaintiff does have a constitutional right to be protected from a substantial risk of serious harm. Brown v. Budz, 398 F.3d 904, 909, 913 (7th Cir.2005). He also has a constitutional right to adequate treatment of his serious mental health needs and to be free from retaliation for exercising his First Amendment rights. Sain v. Wood , 512 F.3d 886, 893 (7th Cir. 2008); Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010).

Verbal harassment alone does not generally present a substantial risk of serious harm, but here the harassment was allegedly so pervasive and severe that Plaintiff developed post-traumatic stress syndrome, and Plaintiff also allegedly was subjected to unwanted sexual touching. At this stage, the Court cannot rule out a constitutional claim for deliberate indifference to a substantial risk of serious harm and deliberate indifference to Plaintiff's serious need for mental health treatment. A First Amendment claim for retaliation for Plaintiff's complaints about the sexual harassment also cannot be ruled out.

A further developed record may show that not all of the named Defendants were personally responsible for the alleged constitutional violations, ...

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