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Mulder v. Clayton

United States District Court, C.D. Illinois

October 11, 2016

MICHAEL MULDER, Plaintiff,
v.
JAMES C. CLAYTON, [1] et al., Defendants.

          OPINION

          MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE

         Plaintiff proceeds pro se from his detention in the Rushville Treatment and Detention Center. He claims that Defendants placed him at risk of a sexual assault or harassment through rooming placements, refused to move him when he reported he was being sexually assaulted and sexually harassed by roommates, and then retaliated against him for reporting that assault and harassment.

         There are eighteen defendants, falling into two camps: the Illinois Department of Human Services employees (DHS defendants) and the Liberty Healthcare employees (Liberty Defendants). Only the Liberty Defendants have moved for summary judgment, the motion now before the Court. The Court directed the DHS Defendants to file a summary judgment motion or to identify the material factual disputes, but the DHS Defendants responded that the record is not developed enough to do so (d/e 54).

         After reviewing the parties' submissions on summary judgment, the Court concludes disputed material facts exist which preclude summary judgment for the Liberty 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). “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, the evidence is viewed in the light most favorable to the nonmovant, with material factual disputes resolved in the nonmovant'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 nonmovant. Id.

         FACTS

         These facts are set forth in the light most favorable to Plaintiff for purposes of this order only.

         Plaintiff has been detained at the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act for over seven years, since May 2009. To be civilly committed under this Act, a jury or judge must find beyond a reasonable doubt that an individual is a “sexually violent person”-a person who “has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” 725 ILCS 207/35(d)(1); 725 ILCS 207/5(f).

         Plaintiff's clinical treatment team during the relevant time included Defendant Ganz, Louck, and Shroeder. Defendant Ganz was Plaintiff's primary therapist; Defendant Louck was the team leader of Plaintiff's treatment team; and Defendant Shroeder was a clinical therapist on Plaintiff's treatment team. Defendant Jumper is the Clinical Director, overseeing the clinical treatment and rehabilitation programs. These four defendants are employed by Liberty Healthcare Corporation (Liberty Defendants) and are the only defendants who filed a summary judgment motion.

         In 2010, Plaintiff was roomed with resident Eric Smith, who made sexual advances to Plaintiff at night while both of them were locked in the room, including “rubbing [Plaintiff's] legs, propositioning [Plaintiff] for oral sex, grabbing [Plaintiff's] butt, and . . . continu[ing] to play with [Plaintiff's] feet when they were hanging off the top bunk . . . .” (Pl.'s Dep. p. 17.) Plaintiff reported the problem to the clinical staff and to security and was removed from the situation about one and ½ weeks later. (Pl.'s Dep. p. 20.)[2]

         Sometime in 2011 or the early part of 2012, Plaintiff was roomed with resident Lawrence Hayes. According to Plaintiff, Hayes “manipulated and forced [Plaintiff] into sexual contact with him- which was anal-anal sex and oral sex.” (Pl.'s Dep. p. 74.) Hayes manipulated Plaintiff with “trickery type comments like, ‘I won't hurt you. I'll go easy on you.'” Id. Plaintiff asked Defendants Hankins for a new room assignment but did not report the assault to Hankins at this time because Plaintiff was scared. (Pl.'s Dep. p. 73- 74.) Plaintiff did not tell anyone about the assault until after Plaintiff was moved to a different room. Several weeks after he was moved out of the room, Plaintiff discussed the assault with his clinical team, which included Defendant Ganz. (Pl.'s Dep. p. 72.) Plaintiff was advised to talk about the incident in group therapy. Id.

         In 2014, Plaintiff was once again roomed with resident Eric Smith for a few weeks, and Smith again started making verbal sexual advances. (Pl.'s Dep. pp. 21, 28, 31.) Plaintiff complained to Defendant Hankins, who did not move Plaintiff, and also to Defendant Ganz, who took no action. Plaintiff then filed a grievance claiming Smith as an enemy and was moved out of the room. (Pl.'s Dep. pp. 21-23, 32, 33.) By this time, resident Smith had also requested a room change, accusing Plaintiff of threatening him. (Pl.'s Dep. pp. 62-63.)

         In the Fall of 2014, Plaintiff requested to room with resident David Mackel. Plaintiff knew that Mackel was sexually active, but Plaintiff and had Mackel agreed that, as a condition of rooming together, Mackel would not attempt to engage in any sexual activities with Plaintiff. Plaintiff believed Mackel's promise because Mackel was involved in a relationship with another resident at the time. (Pl.'s Dep. pp. 23-24, 94.) Unfortunately, Mackel did not keep his promise. Mackel repeatedly masturbated at night in front of Plaintiff, pressured Plaintiff for oral and anal sex, and once reached down Plaintiff's pants and grabbed Plaintiff's testicles.

         Plaintiff reported resident Mackel's behavior to staff but no action was taken. One day, Plaintiff had his room window covered during the day in order to sleep, and Defendant Morton commented loudly in front of everyone that Plaintiff would not need to sleep during the day “if [Plaintiff] wasn't up all night sucking dick.” (Pl.'s Dep. pp. 24-27.)

         Plaintiff continued to report resident Mackel's behavior to staff and his clinical treatment team, including Defendants Dougherty, Hankins, Kindhart, Culhan, Morton, Teel, Thomas, Louck, Ganz, and Shroeder, but Plaintiff was not moved from the room. (Pl.'s Dep. pp. 2, 11, 12, 14, 29, 35, 91.) Defendant Ganz told Plaintiff to talk about the incident in group therapy. (Pl.'s Dep. p. 80.) Defendant Louck filled out an incident report regarding Plaintiff's allegations and sent an email to Defendant Jumper. (Louck Aff. para. 6.)[3]Louck avers that the ...


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