Howe v. Godinez

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES G. HOWE, )

TIMOTHY CHARLES, )

JACOB KALLAL, and )

GEORGE NEEDS, )

) Case No. 14-cv-844-SMY

Plaintiffs, )

)

vs. )

)

SALVADORE GODINEZ, et al., )

)

Defendants. )

MEMORANDUM AND ORDER FOLLOWING BENCH TRIAL

YANDLE, District Judge:

Plaintiffs are civil detainees classified as "sexually dangerous persons" under the Sexually

Dangerous Persons Act ("SDPA"), 725 ILCS 205/0.1, et seq. The Act permits the State to

involuntarily commit and indefinitely confine individuals who have not been convicted of a crime,

but who have been determined likely to commit acts of sexual violence in the future. Plaintiffs

filed the instant action pursuant to 42 U.S.C. § 1983 and allege that Defendants are violating their

constitutional rights. They request declaratory and injunctive relief.

Upon conducting a merit review of the Complaint under 28 U.S.C. § 1915A, the Court

noted and found:

…the Court must first address the issue of class certification. Named in the case caption

are six Plaintiffs, all of whom have confirmed in writing that they wish to proceed in this

action together. However, Plaintiffs did not file a motion seeking class certification, and

it would not have been appropriate to do so at this time. Plaintiffs do not yet have counsel

to represent them, and a prisoner bringing a pro se action cannot represent a class of

plaintiffs. See Lewis v. Lenc- Smith Mfg. Co., 784 F.2d 829, 831 (7th Cir. 1986); FED. R.

CIV. P. 11. Therefore, to the extent that Plaintiffs seek class certification, the request

is DENIED without prejudice.

(Doc. 26).

Plaintiffs did not subsequently move for class certification.

The following individual claims survived summary judgment:

Count 1: Defendants violated Plaintiffs’ right to receive treatment as SDPs;

Count 2: Defendants violated Plaintiffs’ right to receive treatment for their

mental illnesses and disorders under the Eighth and Fourteenth

Amendments;

Count 4: Defendants violated Plaintiffs’ liberty interests under the Fourteenth

Amendment by subjecting them to a punitive environment.

(Doc. 194).

The Court conducted a bench trial (see Docs. 260 and 261) and now makes the following findings

of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

Parties

At all relevant times, Plaintiffs James Howe, Timothy Charles, Jacob Kallal, and George

Needs were and have been civilly committed to the Big Muddy River Correctional Center Sexually

Dangerous Persons Program (the “SDPP”).

Plaintiff Howe was first committed in November 2013 (see Doc. 260, Trial ("Tr.") Volume

("Vol.") I, p. 135). He successfully challenged his civil commitment and was conditionally

released in February 2016. Id. at pp. 135-136. Howe was recommitted to the SDPP for parole

violations in July 2017. Id.; see also Doc. 144. He is currently in Phase I of the SDPP and has

never advanced past Phase I (Tr. Vol. I, p. 138).

Plaintiff Charles was committed to the SDPP in 1997 (Doc. 194, p. 5). At the time of trial,

he was wheelchair-bound, required a constant external supply of oxygen, and was housed in the

healthcare unit at Big Muddy (Tr. Vol. I, pp. 8, 10). He was in Phase I of the SDPP but was not

receiving treatment due to his placement in the healthcare unit. Id. at pp. 12-13. Charles was

released from Big Muddy in October 2020.1

Plaintiff Needs was first committed in 1981 (Tr. Vol. I, pp. 46-47). He has been housed at

Big Muddy since 1995 (Id.) and has never achieved higher than Phase II of the program (Tr. Vol.

I, p. 56). Needs stopped attending group therapy sessions six to eight months before trial. Id.

Plaintiff Kallal was first committed in 2001 and has never advanced past Phase II of the

SDPP (Tr. Vol. I, p. 86). He is currently in Phase I. Id. at p. 95.

Defendants are employees of the Illinois Department of Corrections ("IDOC"). Defendant

Dr. Thomas Holt is the former Administrator of the SDPP and held the position from 2013 until

June 2019 (Tr. Vol. II, p. 379; Doc. 283-3). He obtained his Ph.D. from Cappella University in

2005 and is a Licensed Clinical Professional Counselor ("LCPC"), a Licensed Sex Offender

Treatment Provider, and a Licensed Sex Offender Evaluator (Tr. Vol. II, pp. 378-379). Dr. Holt

created the SDPP and modified it into its current form (Tr. Vol. II, pp. 385-386). Heather Wright

assumed the role on March 16, 2021 (Doc. 283-3).2

1 A claim becomes moot, when the issues presented are no longer “live” or the parties lack a legally cognizable interest

in the outcome. Chafin v. Chafin, 568 U.S. 165, 172 (2013). In an action seeking injunctive relief, a live controversy

must exist which “ordinarily means that, once the threat of the act sought to be enjoined dissipates, the suit must be

dismissed as moot.” Loertscher v. Anderson, 893 F.3d 386, 392–93 (7th Cir. 2018). An inmate’s transfer from the

facility complained of moots the equitable and declaratory claims unless his return to the facility is certain. See Ortiz

v. Downey, 561 F.3d 664 (7th Cir. 2009); Preiser v. Newkirk, 422 U.S. 395, 401–04 (1975); Higgason v. Farley, 83

F.3d 807, 811 (7th Cir. 1996) (dismissing claims for declaratory and injunctive relief as moot because plaintiff had

been transferred from the defendant's facility and failed to show that his return was a virtual certainty). In this case,

Charles was elderly, incapacitated and oxygen-dependent at the time of trial, and there is no realistic possibility that

he will be re-committed to the SDPP. Accordingly, his claims for injunctive relief are DISMISSED as MOOT.

2 Heather Wright, as Holt’s successor, is substituted as a party defendant pursuant to Rule 25(d) of the Federal Rules

of Civil Procedure.

Defendant John Baldwin was the Director of IDOC at the time of trial (Doc. 86)3 and

Defendant Daniel Sullivan was the warden of Big Muddy (Tr. Vol. II, p. 314).4

Civil Commitment

An estimated 5400 individuals are civilly committed under state and federal sex offender

programs across the country.5 Illinois has enacted two sexual commitment statutes – the Sexually

Dangerous Persons Act ("SDPA") and the Sexually Violent Persons Act ("SVPA"), 725 ILCS

207/1 et seq. Individuals committed under the SVPA have been criminally convicted and complete

treatment at the Rushville Treatment & Detention Center, which is operated by the Illinois

Department of Human Services. Those committed under the SDPA have not been convicted of a

sexual offense and are housed at Big Muddy under the operation of the Illinois Department of

Corrections. See 725 ILCS 207/1 et seq.

Under the SDPA:

“When any person is charged with a criminal offense and it shall appear to the

[prosecutor] that such person is a sexually dangerous person, within the meaning

of this Act, then the [prosecutor] may file with the clerk of the court in the same

proceeding wherein such person stands charged with criminal offense, a petition in

writing setting forth facts tending to show that the person named is a sexually

dangerous person.”

725 ILCS 205/3.01. A “sexually dangerous person” (“SDP”) is defined as a person suffering from

a mental disorder for at least one year, “coupled with criminal propensities to the commission of

3 The Court takes judicial notice that the current Director of IDOC is Rob Jeffreys. See

https://www2.illinois.gov/idoc/aboutus/Pages/director.aspx. Accordingly, Jeffreys is substituted for Baldwin as a

party defendant pursuant to Rule 25(d).

4 The Court takes judicial notice that the current warden of Big Muddy is Greg Morgenthaler. See

https://www2.illinois.gov/idoc/facilities/Pages/bigmuddyriver.aspx. Accordingly, Morgenthaler is substituted for

Sullivan as a party defendant pursuant to Rule 25(d).

5 See Arielle W. Tolman, Sex Offender Civil Commitment to Prison Post-Kingsley, 113 Nw. U. L. Rev. 155 (2018)

(noting that this statistic is likely an underestimate of the total population nationwide, as it only includes those people

confined under “sexually violent predator programs,” which generally target post-conviction sex offenders, thus

excluding “sexually dangerous persons” programs that generally target pre-conviction sex offenders).

sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of

sexual molestation of children.” 725 ILCS 205/1.01.

If a local state’s attorney’s office (or the Illinois Attorney General’s office) files a petition

to commit an individual to confinement as an SDP, the individual has a right to an attorney and a

jury trial. 725 ILCS 205/5. If the individual is found beyond a reasonable doubt to be an SDP,

they are placed in the custody of IDOC, and the Director of Corrections is required to provide "for

care and treatment [of the committed individual] designed to effect recovery". 725 ILCS 205/3.01;

725 ILCS 205/8. The treatment provided must conform with the standards promulgated by the

Sex Offender Management Board Act and be conducted by a treatment provider licensed under

the Sex Offender Evaluation and Treatment Provider Act. Id.

An SDP may petition the committing court in writing to be released. 725 ILCS 205/9(a).

Once an SDP petitions for release, he/she is evaluated by an evaluator licensed under the Illinois

Sex Offender Evaluation and Treatment Provider Act (“recovery evaluation”). 725 ILCS 205/9(a).

Recovery evaluations are performed by Wexford evaluators (Tr. Vol. II, p. 417).6 To continue the

commitment, the State must prove by clear and convincing evidence that the SDP remains a

sexually dangerous person. 725 ILCS 205/9(b). “No additional application may be filed for two

years after a finding that the person is still sexually dangerous or after the application is withdrawn”

unless special circumstances are met. 725 ILCS 205/9(d).

The committing court is required to discharge the SDP if, after a hearing, he or she is found

to be no longer dangerous. Id. If the court finds that the person appears no longer to be dangerous

but that it is impossible to determine with certainty under conditions of institutional care that the

6 Wexford Health Sources Inc. is the contracted medical provider for IDOC. Tr. Vol. II, p. 375).

person has fully recovered, it is to enter an order of conditional or supervised release. 725 ILCS

205/9(e).

Big Muddy's Sexually Dangerous Persons Program (SDPP)

At the time of trial, out of 170 SDPs being housed at Big Muddy, 109 were receiving

treatment (Tr. Vol. II, pp. 336-337).

Between 2013 and September 2018, the SDPP was staffed with three therapists: Dr.

Thomas Holt, Jessica Stover, and Heather Young (Tr. Vol. II, pp. 399-400).

Stover is employed by IDOC as a Social Worker IV and has been assigned to the SDPP in

that position since 2010 (Tr. Vol. II, pp. 331-334). She has a master's degree in social work from

Southern Illinois University at Edwardsville (Tr. Vol. II, p. 332) and is a Licensed Clinical Social

Worker (LCSW), Licensed Sex Offender Treatment Provider, and Licensed Sex Offender

Evaluator (Tr. Vol. II, pp. 332-333).

Heather Young is employed by IDOC as a Sex Therapist II and is a Licensed Clinical

Professional Counselor and Licensed SOMB Sex Offender Treatment Provider (Doc. 226).

Two additional therapists were hired in September 2018 and were undergoing training at

the time of trial (Tr. Vol. II, p. 399).

Individual therapy is not provided through the SDPP (Tr. Vol. I, at p. 148). The program

utilizes cognitive behavioral therapy based on the containment model (Tr. Vol. II, pp. 408-409)

and offers three categories of therapy: general group therapy, offense specific group therapy, and

didactic (psycho-educational) group therapy (Tr. Vol. I, p. 192; Tr. Ex., pp. 2, 20).

An SDP may be in a general group, one or more sex-offense specific groups, and one or

more didactic groups (Tr. Vol. II, pp. 338-389). SDPs that do not admit to committing their index

offense are prohibited from participating in sexual offense specific and didactic groups (Tr. Vol.

I, p. 159). Therapy groups are led by either Stover or Young. Stover was the primary therapist

for 60 - 70 SDPs as of the time of trial (Tr. Vol. II, p. 337).

At the time of trial, the SDPP had twelve general therapy groups – “semi-structured,

clinical, ongoing, open-ended therapy groups that encourage individuals to address and resolve

issues specific to their treatment process." (Plf. Tr. Ex. 3, p. 20). The goals of a general therapy

group include: (1) developing insight into/resolving motivational and developmental issues; (2)

processing interpersonal relationship dynamics (i.e. family of origin; core issues); (3) identifying

and learning to control deviant arousal and fantasies; and (4) identifying and learning to change

offending lifestyle behaviors. Id. Placement in general group therapy is determined by the clinical

staff based on intellectual ability, cognitive ability, treatment, treatment readiness, and treatment

motivation (Tr. Vol. II, p. 389). SDPs are given homework to complete between group sessions

and are encouraged to bring their homework to group therapy for feedback (Tr. Vol. II, pp. 346-

347).

The SDPP therapy schedule is prepared by the clinical staff and approved by the

Administrator (Tr. Vol. II, pp. 397-398; Plf. Tr. Ex. 8). General therapy groups meet once a week

for one hour (Tr. Vol. I, pp. 13, 57, 91-92, 169, 188; Tr. Vol. II, pp. 255, 294, 367). Although one

hour is allotted for therapy sessions, the SDPs often do not receive a full hour of therapy due to

the nature of working in a group setting and the size of the group (Tr. Vol. I, pp. 59, 92, 187). As

recently as 2018, there were as many as eighteen SDPs in a single group therapy session (Tr. Vol.

II, p. 255). Attendance for general group therapy had been reduced to no more than 10 SDPs per

group by the time of trial (Tr. Vol. II, p. 387).

Group therapy sessions are canceled at a rate as high as 38% (Tr. Vol. I, pp. 58, 149; Tr.

Vol. II, pp. 294, 341; Plf. Tr. Ex. 55, p. 1). Therapy may be cancelled if there is a state holiday, if

a therapist needs to be in court, or if there are security concerns at the facility (Tr. Vol. II, pp. 341-

342). Cancelled groups are rarely rescheduled.7

The SDPP offers sexual offense specific groups designed to teach strategies specific to the

individual's sexual offense (Tr. Vol. II, p. 388). Offense specific groups are both sex offender and

sex offense specific. Id. The sexual offense specific group topics include “Victim Empathy,”

“Cycles of Sexual Offending,” “Relapse Prevention,” and “Advanced Relapse Prevention.” (Plf.

Tr. Ex. 3). Stover teaches the Cycles of Sexual Offending groups and the Relapse Prevention

group (Tr. Vol. II, p. 339). The Victim Empathy group has not been offered since 2015 (Tr. Vol.

I, p. 149).

The SDPP offers optional didactic groups on a rotating basis (Plf. Tr. Ex. 3). The didactic

groups are structured, time-limited, clinical, closed therapy groups that teach specific topics and

strategies related to the treatment process while encouraging participating individuals to address

and practice the behaviors in their other groups. Id. Didactic groups are generally conducted in

24-week sessions for one hour per week (Tr. Vol. II, pp. 340-341). The didactic groups include

Anger Management, Social Skills, Rational Emotive Behavior Therapy, Substance Abuse, and

Expressive Art (Plf. Tr. Ex. 3). At the time of trial, three didactic groups were on hold, including

Social Skills, Substance Abuse, and Expressive Art. Id.

Four Phase Program

The SDPP is organized into four phases of indeterminate length (Tr. Vol. II, pp. 389-390):

Phase One – Initial Treatment: For an SDP to transition to the next phase, he cannot receive

any disciplinary tickets within a 6-month evaluation period. (TR. Vol. I, pp.17, 150). AN

SDP must also complete the initial assessment packet, outline of psychosexual history and

victimology outline as evidenced by a basic acknowledgment of sexual offenses. Id. Other

Phase One goals include the ability to identify basic cognitive distortions; understand and

7 While Defendant Stover testified that the clinical staff attempts to reschedule cancelled group therapy sessions (Tr.

Vol. II, pp. 341-342, the Court finds Plaintiffs’ testimony to the contrary to be consistent and credible.

accept the offender's lifestyle that led him to this point, including the ability to discuss basic

dysfunctional core beliefs without assuming a victim stance; identification of basic deficits

in social and interpersonal relationships; and a desire to learn/practice new

relational/behavioral skills by holding oneself accountable for his behavior in general. Id.

Phase Two – Early Treatment: The goals of Phase Two include completion of ongoing

assessments, intermediate outlines of psychosexual history and victimology outline as

evidence by progressive lessening of denial and defensiveness; an ability to identify

intermediate cognitive distortions as evidenced by the individual's ability to identify and

discuss offense-specific cognitive distortions; intermediate level of understanding and

acceptance of how the offender lifestyle has led to this point as evidence by the individual's

ability to discuss dysfunctional lifestyle patterns, characteristics, behaviors and disorders

without assuming the victim stance; a basic level of understanding and acceptance of

arousal identification, the thoughts and behaviors associated with sexual offending, and

acceptance of the negative impact of offending behavior on the victim, others, and the

offender; a desire to learn and discuss appropriate boundaries within the individual's

current environment; and an adequate level of participation. Id.

Phase Three – Treatment: Phase Three continues the goals for Phases I and II. Id. SDPs

in Phase Three may not have any tickets within two six-month evaluation periods. They

must complete ongoing assessments and have a progressive understanding and acceptance

of their psychosexual history, victimology, cognitive distortions, and deficits in their

social/emotional skills and relationships. SDPs must also exhibit a desire to learn and

practice increasingly complex relational/behavioral skills as evidence by the individual's

ability to disengage from relationships in his current environment that support denial,

minimization and resistance to treatment and the demonstrated ability to avoid high-risk

social/relational/behavioral situations and environments. Id.

Phase Four – Advanced Treatment: In addition to reaching the goals established in the

previous phases, Phase Four requires the SDP to develop advanced understanding and

acceptance of aftercare concepts prior to release as evidenced by the individual's

stated/demonstrated awareness that treatment completion is the successful transition from

IDOC offense-specific treatment into community offense-specific treatment. Id.

The phases are outlined in the SDPP Procedures (Plf. Tr. Ex. 3, p. 23). Progression requires an

SDP to demonstrate the stated goals per phase. Id. Advancement in phases is an important factor

in determining whether an SDP is ready for conditional release or discharge (Tr. Vol. II, p. 393).

Completion of all four phases does not guarantee that the SDP will be released. Id. at pp. 392-

393. Plaintiffs are not made aware of how phase placements are determined or what they need to

do to advance (Tr. Vol. I, pp. 17, 150).

SDP Treatment Evaluations

Primary therapists conduct semi-annual evaluations for their assigned SDPs (Tr. Vol. II, p.

406). The purpose of the semi-annual evaluation is to measure the individual’s progress in

treatment (Tr. Vol. II, pp. 369-370). SDPs may move up or down between phases as they progress

or regress in treatment. The semi-annual evaluation utilizes a numerical scoring mechanism

“designed to reflect an individual’s relative treatment need for each risk factor.” Id. “The total

score is intended to provide an estimation of an individual’s overall level of treatment need.” Id.

“Higher total scores are associated with higher levels of risk for sexual reoffending.” Id.

Individuals that do not participate in treatment are not scored (Tr. Vol. II, p. 370). Each SDP is to

be assessed regarding dynamic risk factors including: sexual offense disclosure; acceptance of

responsibility; identifying cognitive distortions and restructuring those; criminal behaviors; life-

style impulsivity; problem solving; ability to understand and use REBT skills; Anger Management;

ability to identify and understand their Cycle process, their offending pattern; and then, also, to

identify while they are currently displaying indicators of their offending pattern. Id. The

assessments are based on group case notes and treatment staff observations. Id. at p. 371.

SDPs are provided copies of the semi-annual evaluations and may discuss them in general

group (Tr. Vol. II, p. 348; p. 372). There is no opportunity for the SDP to discuss their semi-

annual evaluations with their primary therapist outside of group therapy. Id. at p. 372. The semi-

annual evaluation is used by the SDP’s primary therapist to develop a six-month treatment plan

for the SDP (Tr. Vol. II, p. 354). Every SDP, whether they choose to participate in treatment

groups or not, is provided a treatment plan with individualized goals to work towards over a six-

month period based on their current presenting needs (Tr. Vol. II, pp. 344-345). Each SDP

currently participating in treatment groups is asked for input, suggestions, and questions about

their treatment goals before treatment plans are updated. Id. Any input provided by the SDPs is

incorporated into their treatment plan. Id.

SDP Recovery/Release Evaluations

When an SDP petitions the committing court for a recovery evaluation, the evaluation is

conducted by Wexford Health Sources, Inc. evaluators who are under contract with IDOC (at the

time or trial, the evaluators were Dr. Melissa Weldon- Padera and Dr. Kristopher Clounch) (Tr.

Vol. II, p. 376). The purpose of the Wexford evaluation is to analyze the current and future risk

the SDP poses and to ultimately make a recommendation for or against discharge or conditional

release from the program. (Id.; Doc. 124-1, p. 18; Plf. Tr. Ex. 14-16). The Wexford evaluators

base their evaluation and recommendation on the SDP treatment file maintained by the SDPP,

including the semi-annual reports, treatment plans, and case notes created by the primary therapist,

a brief consultation with the SDP’s primary therapist and an interview with the SDP (Tr. Vol. II,

pp. 417-418; Plf. Ex. 15).

Since 2011, 22 SDPs have been released, discharged, or recommended for release or

discharge by an evaluator (Tr. Vol. II, p. 395). 11 SDPs have been discharged while in Phases 3

or 4 and 11 have been discharged while in other treatment phases. Id. at p. 395. Since 2011, 11

SDPs have been denied conditional release or discharge by the committing court, despite having

been recommended for release by the evaluator. Id. at p. 395; p. 374. SDPP staff do not make

recommendations regarding whether an SDP should be released or discharged. Id. at pp. 375-376.

Conditions of Confinement

SDPs are housed on Wings B and C at Big Muddy (Tr. Vol. I, p. 33) and may have contact

with the general inmate population in the healthcare unit lobby, the dining room, or on the yard

line. Id. at pp. 321-323. Inmates are no longer housed on the same wing as SDPs. Id. at p. 323.

SDPs are subject to IDOC Institutional Rules and SDPP Program Rules (Plf. Tr. Ex. 3, p.

2). The Big Muddy “Inmate Orientation Manual” contains policies and procedures applicable to

inmates and SDPs (Tr. Vol. II, p. 315; Plf. Tr. Ex. 2). The SDPP Manual contains additional

policies and procedures applicable to SDPs (Plf. Tr. Ex. 3).

An SDP may be issued a program ticket by clinical staff if he does not comply with SDPP

rules (Tr. Vol. II, p. 354). Program tickets are a record of noncompliance but do not result in

discipline for SDPs. Id. at pp. 356-357. A program ticket can be issued for failing to attend group,

the continued use of profanity, disruptive behavior that hinders treatment, violating the dress code,

or possessing pictures that have been determined to be sexually stimulating (Tr. Vol. II, pp. 354-

355, 357-358). An SDP is placed on a 30-day probation if he receives three program tickets within

90 days. Id. An SDP that violates a program rule while on probation is placed on suspension and

removed from treatment for 30 days. Id. An SDP on suspension may request treatment specific

books, self-help books, and workbooks from the Sex Offender Program library (Tr. Vol. II, pp.

361-362).

SDPs can be written Inmate Disciplinary Reports (“IDRs”) (Tr. Vol. II, pp. 317-318).

SDPP staff, including primary therapists may issue IDOC tickets that result in an SDP being placed

in segregation (Tr. Vol. I, p. 130). Big Muddy's Adjustment Committee adjudicates IDRs issued

to SDPs and inmates (Tr. Vol. II, pp. 316; Plf. Tr. Ex. 2). The warden then approves disciplinary

recommendations by the Adjustment Committee. Id. The Adjustment Committee may

recommend segregation if an SDP assaults staff, assaults other detainees, possess dangerous

contraband, refuses their housing assignment, or has repeated disciplinary infractions (Tr. Vol. II,

pp. 316-319).

SDPP therapists are not members of the Adjustment Committee but may intervene and

make suggestions for reductions in segregation time or any other consequence of an IDOC

infraction. (Tr. Vol. I, pp. 163-164; Tr. Vol. II, pp. 411-412). Treatment staff have removed SDPs

from segregation early so that they could return to treatment. Id.

SDPs are required to wear blue pants, blue shirts, and their state-issued identification (Tr.

Vol. II, p. 319). Due to safety and security concerns, SDPs are prohibited from wearing street

clothes and are limited in the types of personal property they may possess. Id. at pp. 320-322; p.

366. Big Muddy restricts items which can be used by SDPs to attempt escape and restricts items

whose components could be used to create homemade knives, shanks, or other weapons. Id.

Although SDPs are permitted more time in the dayroom than inmates, safety and security

concerns prevent SDPs from having unlimited access to the dayroom (Tr. Vol. II, p. 321). SDPs

are allowed out of their cells while staff is present; usually between 8:00 a.m. and 2:30 p.m.

Monday thru Friday. Id. They are also provided one hour in the dayroom during the evenings and

several hours on the weekends (similar to the inmate population) and are in their cell the remainder

of the day. (Tr. Vol. I, pp. 42-44; p. 132).

Vocational and educational classes are available to SDPs and inmates (Tr. Vol. I, pp. 165-

166). Because SDPs are detained for an indefinite period of time, they are considered “lifers” for

the purposes of determining placement on waiting lists for the classes, leading to longer times on

waitlists for classes. Id.

Plaintiffs’ Expert – Dr. Dean R. Cauley

Dr. Dean R. Cauley received a bachelor’s degree in psychology from the University of

Michigan, a master’s degree in mental health counseling from Oakland University, a M.B.A. from

Ludgert College of Business, and a Ph.D. in mental health counseling with a focus on criminal

justice from Wayne State University (Doc. 124-1, pp. 26-27). He has been in private practice since

2003 and has provided expert opinions and analysis in civil commitment cases in state and federal

courts (Tr. Vol. I, pp. 175-176; see also Doc. 124-1, p. 25). Prior to entering private practice, Dr.

Cauley served in various roles at the Florida Civil Commitment Center for Sexually Violent

Predators, including as clinical team leader and clinical therapist. Id. In the Florida program, he

provided sex offender treatment in both group and individual sessions and supervised clinical team

members. Id.8

Dr. Cauley offered the following opinions at trial: The SDPP falls far below the generally

accepted standards in the field of civilly committed sex offender treatment with respect to the

amount of therapy offered to SDPs and group sizes (Doc. 124-1, pp. 15-18, 20-22). The inherent

flaws in the SDPP result in treatment that is slow, repetitive, and not catered to the mission of

treating the men and returning them to the community as quickly as possible. Id.

In reaching his conclusions, Dr. Cauley relied on the generally accepted practices of

inpatient sex offender treatment as determined through a network called the Sex Offender Civil

Commitment Program Network (“SOCCPN”) (Tr. Vol. I, pp. 177-186). SOCCPN gathers

information from sex offender civil commitment programs in 19 different states, including staff

qualifications and ratios, phase descriptions, hours of treatment, etc., and determines generally

8 The Court finds that Dr. Cauley is qualified as an expert based on knowledge, skill, experience, training, and

education. The Court further finds Dr. Cauley’s testimony to be credible and persuasive.

accepted practices by calculating an acceptable range based on the information gathered. (Id.;

Doc. 261, p. 82).

Dr. Cauley compared the SDPP to SVP program at Rushville and opined that while

Rushville consistently fell within the acceptable ranges of SOCCPN in the various aspects of its

program, the SDPP was consistently far below the acceptable ranges. Id.; Doc. 260, pp. 186-193.

The generally accepted duration for one session of group therapy is no less than 90 minutes

(Tr. Vol. II, p. Doc. 261, p. 53). The generally accepted number of hours for general group therapy

is no less than five hours per week (Tr. Vol. I, p. 188). The one hour per week group therapy SDPs

receive is far below the generally accepted standard of treatment. Id. at pp. 234-235; Plf. Ex. 55.

Dr. Cauley was aware of no other program that had group once a week; most programs meet two

to three times a week for an average of two hours per session which promotes a continuum. Id. at

p. 250. The national mean average for general group therapy in civil commitment programs is 7.5

hours per week. Id. at p. 255. Rushville is close to five. Id.

The number of treatment modalities that are on hold also place the SDPP below generally

accepted standards of treatment. Anger management and substance abuse tie into offense and re-

offense at a basic, primary level and without addressing these precursors to a sexual crime, other

work is not grounded (Doc. 124-1, p. 21). Treatment modalities, especially Substance Abuse,

Anger Management, and Victim Empathy, are “critical parts” of treatment and should be available

to SDPs at all times, regardless of the SDP’s level of recognition of their history or offenses (Doc.

260, p. 190). It is atypical to place critical modalities on hold (Tr. Vol. II, p. 256).

The generally accepted maximum number of individuals in a therapy group is ten. (Tr. Vol.

II, p. 249). Groups exceeding ten individuals handicap the delivery and effectiveness of treatment

by allowing offenders who would rather not participate to “hide out” in large groups. (Doc. 124-

1, p. 17). In large groups, “[c]ohesion, trust, and meaningful work are lost to simple issues of

trying to simply organize and focus the group.” Id. Large groups have the inevitable effect of

slowing progress, “as the group members have long periods of time between presentations, times

of exploring their own issues and processing their own offense cycles." Id.

The SDPP’s staff to resident ratio is far below generally accepted practice standards. The

ratio of treatment providers to SDPs at Big Muddy is approximately 1 to 42.5 (Tr. Vol. II, p. 254)

while the generally accepted ratio is one treatment provider for every ten patients. (Tr. Vol. I, p.

192). When the treatment provider to SDP ratio is substantially above the generally accepted ratio,

“the quality and quantity of treatment – even under the very best circumstances with the very best

intentions and in the best setting – is handicapped.” (Doc. 124-1, p. 4).

The SDPP's lack of clear guidelines for treatment completion or projected timeframes for

phase progression impedes the motivation of individuals. In programs that meet the generally

accepted standard, “there would be some section of the Procedures Manual that would outline the

style or the orientation of treatment. It would map out the initial evaluation, mental health

assessment, 90-day reviews, Annual Reviews, etc. None of that is in [the SDPP] manual. It should

clarify the clinical orientation in more than a simple paragraph, and it should lay out the Stages

and Phases of Treatment. It should clarify how advancement occurs, and how demotions may

occur. It should present the curriculum, and the dispensation of treatment at different Stages. This

description should be provided to the men, so that they know what the process is and how they can

advance.” (Plf. Ex. 55, p. 2). The most recent SDPP manual, “finally does mention treatment,

however in looking at items like ‘Treatment Groups’ the entire entry is about behavioral “tickets,”

not about treatment, and the overall focus of the manual is rule compliance, dress code and policy

regarding speech – not the clinical program.” Id.

With respect to the Wexford recovery/release evaluations, “tests were presented as having

‘considerable predictive validity’ when they actually have very little. Indicators of risk were

underscored as predicting future sexual violence when these items have shown minimal research

outcomes as being predictive” (Doc. 124-1, p. 18). Important topics such as age or the passage of

time are not given any attention in the evaluations. (Id.; Doc. 261, pp. 44-45). The Wexford

evaluations are based largely on past acts to assess the current condition of the SDP. “Both sexual

recidivism risk as well [as] antisocial traits decline beginning at age 40, and rapidly decline after

age 60. These reviews do not provide an accurate conception of current or future risk (Doc. 124-

1, p. 18). The Wexford evaluations “do not adhere to generally accepted practice or evidence-

based decision making.” Id.

Post-Trial Developments

According to supplemental declarations from Stover and Wright, core therapy groups were

extended to 90-minute sessions in December 2019 (Doc. 283-1, at ¶ 9). Since late 2019, group

therapy location moved to the school building on the campus of Big Muddy River Correctional

Center. Id. at ¶ 12. SDPs no longer receive program tickets for missing group sessions nor are

they placed on probation or suspended from therapy. Id. at ¶ 11. SDPs are only removed from

therapy if they “sign out” on their own volition. Id. If an SDP is disruptive during group or misses

a group session, it is noted on program compliance sheet and no further action is taken. Id. There

has been no group therapy since March 2020 due to COVID-19 restrictions (Doc. 283-2, ¶ 20).

SDPs have been provided homework to complete to further facilitate the tools and critical thinking

learned in group. Id.

In July 2020, the SDPP began using the STABLE 2007 and STATIC 99R to conduct

evaluations (Doc. 838-2, at ¶¶ 13-17). The STATIC 99R allows a treatment provider to identify

static (i.e., not changeable with treatment) risk factors. Id. The STABLE 2007 allows a treatment

provider to identify dynamic risk factors that may change in treatment; these risk factors can then

be targeted and used to determine treatment goals for the next six months per SDP. Id. The new

evaluation process incorporates a one-on-one initial evaluation using the STABLE 2007 and

STATIC 99R with a treatment provider and SDP. Id. This begins with a 1-2 hour meeting with

an individual SDP. Id. After which the STABLE 2007 assessment with be completed and utilized

in creating a treatment plan. Id. From July 2020 until October 2020, 17 new evaluations were

conducted using this method. Id. Treatment providers have been unable to perform additional

semi-annual evaluations due to COVID-19 quarantine and distancing protocols but anticipate

resuming the process when guidelines permit. Id.

According to Plaintiffs, there are currently only three licensed therapists for the SDPP. No

SDP has received a semi-evaluation in over one year (Doc. 280). There was no Administrator for

the SDPP at Big Muddy between June 2019 and March 2021 (Doc. 283-2, ¶ 6). Wright assumed

the role on March 16, 2021. Id.; see also Doc. 280.

LEGAL STANDARDS

The Fourteenth Amendment prohibits the State from depriving any person of life, liberty,

or property without due process of law. In the context of civil commitment, due process requires

that the nature and duration of commitment bear some reasonable relation to the purpose for which

the individual is committed. See Kansas v. Hendricks, 521 U.S. 346, 356 (1997). “If the object

or purpose of the [state] law [is] to provide treatment but the treatment provisions were adopted as

a sham or mere pretext, there would [be] an indication of the forbidden purpose to punish…if civil

confinement were to become a mechanism for retribution or general deterrence...[Supreme Court]

precedents would not suffice to validate it.” Hendricks, 521 U.S. at 371-73; see also Bell v.

Wolfish, 441 U.S. 520, 535 (1979) (the purpose must not be punitive, as punishment is reserved

for the criminal system). Thus, the Fourteenth Amendment mandates that civil detainees receive

treatment for the disorders that led to their confinement and be released when they have improved

enough no longer to be dangerous. Hughes v. Dimas, 837 F.3d 807, 808 (7th Cir. 2016).

Detention under the SDPP is a rehabilitative civil remedy – not punitive – and is to be

employed for incapacitation and treatment. See, e.g., Allison v. Snyder, 332 F.3d 1076, 1079 (7th

Cir. 2003); see also Lane v. Williams, 689 F.3d 879, 885 (7th Cir. 2012) (it is beyond dispute that

the purpose of detention is not punitive – detainees’ commitment is meant to be rehabilitative and

aimed at the goal of their ultimate release). Due process requires state officials to provide civilly-

committed persons with access to mental health treatment that gives them a realistic opportunity

to be cured or to improve the mental condition for which they were confined. See Youngberg v.

Romeo, 457 U.S. 307, 319–22 (1982). The State “enjoy[s] wide latitude in developing treatment

regimens [for sex offenders],” Hendricks, 521 U.S. at 368 n. 4, and “liability [on a claim of

constitutional deprivation] may be imposed only when the decision by the professional is such a

substantial departure from accepted professional judgment, practice, or standards as to demonstrate

that the person responsible actually did not base the decision on such a judgment.” Youngberg,

457 U.S. at 323; Allison, 332 F.3d at 108.

In the past, the Seventh Circuit applied the same standard to substantive due process claims

arising under the Fourteenth Amendment and deliberate indifference claims arising under the

Eighth Amendment. See Smith v. Dart, 803 F.3d 304, 309-10 (7th Cir. 2015). And in analyzing

the professional judgment standard, the court initially concluded that there is minimal difference

in what the two standards require of state actors and that the standard is "at least as demanding" as

the Eighth Amendment deliberate indifference standard. Collignon v. Milwaukee Cnty., 163 F.3d

982, 988 (7th Cir. 1998).

The subjective element of the deliberate indifference standard was recently rejected by the

Supreme Court in Kingsley v. Hendrickson, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015) (“The

question before us is whether, to prove an excessive force claim, a pretrial detainee must show that

the officers were subjectively aware that their use of force was unreasonable, or only that the

officers' use of that force was objectively unreasonable. We conclude that the latter standard is the

correct one.”). And in Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018), the Seventh

Circuit expanded Kingsley's logic to medical care claims brought by pretrial detainees under the

Fourteenth Amendment so that a pretrial detainee need only establish that the defendant's conduct

was objectively unreasonable – not that the defendant was subjectively aware that it was

unreasonable. Miranda, 900 F.3d at 352-53. The rationale of Kingsley and Miranda extends to

Youngberg's “substantial departure from accepted professional judgment” standard – an objective

inquiry into prevailing medical standards and whether a reasonable professional, applying those

standards, would have made the same decision considering the facts in a case.

Civil detainees “may be subjected to conditions that advance goals such as preventing

escape and assuring the safety of others,” Allison, 332 F.3d at 1079, but the various aspects of

those conditions must be justified on the basis of institutional security or treatment. West v.

Schwebke, 333 F.3d 745, 748 (7th Cir. 2003). As long as prison officials have a legitimate interest

in security that is reasonably related to the rules and regulations in effect, the Constitution has not

been violated. Id

CONCLUSIONS OF LAW

Counts I and II – Failure to Provide Adequate Treatment

Actual treatment of the civilly confined is what separates commitment from punishment

and incarceration.9 Without adequate treatment designed to effectuate ultimate release, a civil

commitment program is nothing more than a de facto prison disguised as a mental health facility.

The Constitution clearly dictates that a civil detainee cannot simply be warehoused and put out of

sight; they are not prisoners and must be afforded adequate treatment. Specifically, they are

entitled by law to “more considerate treatment and conditions of confinement than criminals whose

conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 322; see also Allen v.

Illinois, 478 U.S. 364, 370 (1986) (“In short, the State has disavowed any interest in punishment,

provided for the treatment of those it commits, and established a system under which committed

persons may be released after the briefest time in confinement.”). The Big Muddy SDPP operates

contrary to these important principles.

Treatment must be more than mere window dressing to comply with the SDPA – it must

enable a true path to release. But the Big Muddy SDPP as constituted affords Plaintiffs no realistic

opportunity to be cured or to improve their mental conditions. Instead, it has transformed civil

confinement into a punitive and potentially lifetime detention, which violates Plaintiffs’ due

process rights.

As Dr. Cauley explained, providing only one hour of general therapy per week is a

substantial departure from accepted professional standards and is objectively unreasonable as it

fails to provide a meaningful opportunity for SDPs to meet any of the milestones necessary to

9 Given this obvious distinction in purpose, the Court finds the fact that convicted SVPAs complete treatment at the

Rushville Treatment & Detention Center while non-convicted SDPs are committed under the auspices of the

Department of Corrections to be curious at best.

move through the phases at an acceptable speed. The credible evidence (data collected from

SOCCPN and review of the Rushville program) establishes that five hours per week is the

minimum acceptable number of hours for group therapy.

Additionally, the duration of group therapy – 60 minutes – does not satisfy the generally

accepted professional standard of at least 90 minutes per session. Although group therapy sessions

were increased in December 2019 from 60 minutes to 90 minutes, the number of weekly sessions

has not increased. As such, Plaintiffs are only receiving 90 minutes of group therapy per week –

still significantly below the minimum acceptable number of hours dictated by professional

standards. Moreover, purportedly due to COVID-19 restrictions, SDPs have not received any

group therapy since March 2020. The complete suspension of treatment – even with the

availability of homework – makes it impossible for Plaintiffs to realize their treatment goals.

The SDPP’s ratio of treatment providers to SDPs is also inadequate to meet meaningful

treatment goals. The ratio of therapists to SDPs has been as high as 1 to 42.5, which is a far

departure from the generally accepted ratio of 1 to 10.10 And while Dr. Holt testified that general

group therapy class sizes had been decreased, his testimony is belied by class sign-in sheets

documenting classes as large as 15 to 18 SDPs as late as 2018. As of Spring 2021, there were still

only three licensed therapists at the facility.

Dr. Cauley persuasively testified that the single hour of general group therapy offered per

week coupled with the ratio of therapist to SDPs handicaps the delivery and effectiveness of

treatment: “[c]ohesion, trust, and meaningful work are lost to simple issues of trying to simply

organize and focus the group.” Large groups have the inevitable effect of slowing progress, “as

the group members have long periods of time between presentations, times of exploring their own

10 Jessica Stover testified at trial that she was the primary therapist for 60 - 70 SDPs.

issues and processing their own offense cycles." These inherent flaws result in treatment that is

slow, repetitive, and not catered to the mission of treating the plaintiffs and returning them to the

community as quickly as possible.

The offense specific and didactic group modalities fare no better. The most glaring problem

is the number of these groups that are on hold – some that have not been offered in years. These

treatment modalities, especially Substance Abuse, Anger Management, and Victim Empathy, are

critical treatment components and should be available to SDPs at all times, regardless of the SDP’s

level of recognition of their history or offenses. As Dr. Cauley opined, these essential programs

“tie into offense and re-offense at a basic, primary level. Without addressing these precursors to a

sexual crime other work is not grounded.”

At the time of trial, Plaintiffs were evaluated twice a year by their primary therapists. These

semi-annual evaluations were relied on by the therapists in developing six-month treatment plans.

Since July 2020, the evaluations have been conducted utilizing STABLE 2007 and STATIC 99R,

which according to Defendants are meant “to better inform treatment plans and goals for SDPs

moving forward.” Specifically, Defendants assert that SDPs are provided a one-on-one initial

evaluation with their primary therapist from which a treatment plan is developed. The plan is

utilized to help the SDP work toward their individual therapy goals. Evaluations are an integral

part of an SDPs ability to move through the phases. Significantly, the revised evaluations were

conducted for only three months – July 2020 to October 2020. Since then, no treatment providers

have been able to perform semi-annual evaluations due to COVID-19 restrictions. The lack of

semi-annual evaluations (whatever the cause) makes it impossible for SDPs to meaningfully

advance in the program.

In sum, with respect to the claims asserted in Counts I and II, the Court concludes that

Defendants have failed in their obligation to provide Plaintiffs with statutorily required

rehabilitative treatment. Consequently, the SDPP, as currently structured and implemented, fails

to meet generally acceptable professional standards and violates Plaintiffs’ right to due process as

guaranteed by the Fourteenth Amendment.

Count IV - Punitive Conditions

The evidence does not support Plaintiffs' contention that the conditions they are subjected

to at Big Muddy are not rationally related to IDOC’s legitimate interest in maintaining the safety

and security of the facility. See, e.g., Rapier, 172 F.3d at 1003 (quoting Wolfish, 441 U.S. at 535)

(“These restraints may at times be “discomforting,” but, as long as they are “reasonably related”

to the effective management of the confinement facility, they are not considered punishment for

the crime that the detainee is suspected to have committed.”). Although SDPs are prohibited from

wearing street clothes, possessing various property, and having unlimited access to the dayroom

based on legitimate safety and security concerns, they generally receive more time out of their

cells than the general inmate population. When staff is present, they are permitted out of their

cells between 8:00 a.m. and 2:30 p.m. Monday thru Friday. They also receive dayroom privileges

on the weakened – staff permitted. And while SDPs are subjected to SDPP program tickets and

IDRs, only IDRs result in discipline. SDPs may be subjected to segregation if they assault staff,

assault other detainees, possess dangerous contraband, refuse housing assignment, or have

repeated disciplinary infractions. Based on this evidence, the Court finds that Plaintiffs are not

entitled to injunctive relief on this basis.

DISPOSITION

The Due Process Clause of the United States Constitution requires that the nature and

duration of the confinement bear some reasonable relation to the confinement's non-punitive civil

purpose. Thus, the State must ensure that it civilly confines individuals only so long as they are

both mentally ill and dangerous to the public. Confinement beyond that point or confinement

which imposes restrictions that are so excessive as to indicate the purpose is punitive rather than

rehabilitative in nature is unconstitutional.

The evidence in this case establishes that the Sexually Dangerous Persons Program at Big

Muddy River Correctional Center suffers from systemic failures which has resulted in Plaintiffs

being detained indefinitely with no real hope of being released. This Court therefore finds that

Defendants have deprived Plaintiffs due process in violation of the Fourteenth Amendment.

The Court further finds the Plaintiffs have established by a preponderance of the evidence

that the issuance of a permanent injunction is warranted and necessary. The evidence establishes

that there are systemic and gross deficiencies in the provision of therapy services, therapist to

SDP staffing ratios, and recovery evaluation which place the plaintiffs at a significant risk of

harm. As such, the Court specifically concludes Plaintiffs have suffered or will suffer irreparable

injury if a permanent injunction is not issued given the significant deficiencies in the delivery of

mental health services via the SDPP.

The Court further finds that there are no adequate remedies available at law to compensate

Plaintiffs for their injuries. Plaintiffs are confined within the IDOC; Defendants are required to

provide adequate mental care and treatment. Thus, the balance of hardships and public interest

weigh heavily in Plaintiffs’ favor.

For the foregoing reasons, Plaintiffs James Howe, Jacob Kallal, and George Needs’

Request for a Permanent Injunction with respect to the claims asserted in Counts I and II (Doc.

10) is GRANTED.

The Court simply cannot allow Plaintiffs’ constitutional rights to continue to be so

blatantly disregarded and violated. While the Court recognizes that correcting systemic and

structural deficiencies to comply with a court-imposed order to provide specific relief to the

plaintiffs herein may pose a significant challenge to Defendants, the Constitution mandates that

they meet the challenge and do so expeditiously.

Accordingly, the following permanent injunctive relief is ORDERED:11

1. Beginning no later than 30 days from the entry of this Order, Plaintiffs shall receive a

minimum of 7.5 hours of core group therapy per week – each core group therapy session

shall last no less than 90 minutes;

2. All offense specific and didactic groups that are currently suspended shall be reinstated

and permanently maintained beginning no later than 30 days from the entry of this

Order;

3. Within 6 months from the entry of this Order, recovery/release evaluations shall be

conducted of the plaintiffs herein by independent psychologists or psychiatrists (not

employed by IDOC or Wexford). No later than 30 days from the entry of this Order,

Defendants shall provide Plaintiffs and the Court with a list of proposed independent

psychologists/psychiatrists to conduct said evaluations. Plaintiffs shall file any objections

to the proposed providers within 30 days thereafter.

11 Absent class certification, the Court may not order injunctive relief for SDPs other than the plaintiffs herein.

Obviously however, Defendants’ task would be made easier by addressing and correcting the program deficiencies

across the board rather than in a piecemeal fashion.

Defendants are further ORDERED to file a status report under seal regarding their

compliance with the instant Order within 60 days of its entry.

IT IS SO ORDERED.

DATED: September 6, 2021 ole

STACI M. YANDLE

United States District Judge

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