Schloss v. Jumper

Illinois Official Reports

Appellate Court

Schloss v. Jumper, 2014 IL App (4th) 121086

Appellate Court JEREMY L. SCHLOSS, Plaintiff-Appellant, and WALTER

Caption PEGUES, Plaintiff, v. SHAN JUMPER, FORREST ASHBY, and

THE DEPARTMENT OF HUMAN SERVICES, Defendants-

Appellees.

District & No. Fourth District

Docket No. 4-12-1086

Rule 23 Order filed April 23, 2014

Rule 23 Order

withdrawn June 5, 2014

Opinion filed June 5, 2014

Held On appeal from the dismissal of the pro se amended complaint filed by

(Note: This syllabus a detainee civilly committed under the Sexually Violent Persons

constitutes no part of the Commitment Act alleging, in multiple counts, various inadequacies in

opinion of the court but his treatment program, the only viable claim before the appellate court

has been prepared by the was the allegation that unreasonable restrictions were imposed on free

Reporter of Decisions speech by restricting access to forms of media based on security and

for the convenience of therapy concerns, and the appellate court held that the media

the reader.) restrictions, including the restrictions on access to movies and video

games on a prohibited media list “which contains titles with sexual

and/or graphic violent themes deemed especially counter-

therapeutic,” were reasonable and not unconstitutional, especially in

view of the review procedure available for specific unrated movies

and games and the fact that unrestricted access to all media would

likely interfere with treatment efforts and the operation of a secure and

orderly facility.

Decision Under Appeal from the Circuit Court of Schuyler County, No. 12-CH-6; the

Review Hon. Alesia A. McMillen, Judge, presiding.

Judgment Affirmed.

Counsel on Jeremy L. Schloss, of Rushville, appellant pro se.

Appeal

Craig L. Unrath, of Heyl, Royster, Voelker & Allen, of Peoria, and

Shay H. Matthews, of Heyl, Royster, Voelker & Allen, of

Edwardsville, for appellee Shan Jumper.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Christopher M.R. Turner, Assistant Attorney

General, of counsel), for other appellees.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶1 In September 2012, plaintiff, Jeremy L. Schloss, a detainee in the Rushville Treatment and

Detention Center, filed a pro se amended complaint against defendants, Shan Jumper and

Forrest Ashby, alleging defendants imposed unreasonable restrictions on free speech by

restricting plaintiff’s access to various forms of media based on security or therapy concerns.

In November 2012, defendants filed separate motions to dismiss, which the trial court granted.

¶2 On appeal, plaintiff argues the trial court erred in granting defendants’ motions to dismiss.

We affirm.

¶3 I. BACKGROUND

¶4 Plaintiff has been civilly committed pursuant to the Sexually Violent Persons Commitment

Act (Act) (725 ILCS 207/1 to 99 (West 2010)). Plaintiff has finished serving his criminal

sentence but has been detained indefinitely in a secure Department of Human Services (DHS)

facility for treatment because he has been found beyond a reasonable doubt to suffer from a

“mental disorder that makes it substantially probable that [he] will engage in acts of sexual

violence.” 725 ILCS 207/5(f) (West 2010). A detainee under this Act may petition for

conditional release annually, but conditional release is granted only if enough progress in

treatment has been made that the detainee is no longer substantially probable to engage in acts

of sexual violence if on conditional release. 725 ILCS 207/60 (West 2010).

¶5 Plaintiff has been civilly committed to DHS custody since July 2008. Plaintiff resides in

the Rushville Treatment and Detention Center in Rushville, Illinois, a facility operated by

-2-

DHS. Defendant Shan Jumper is the clinical director of the facility and defendant Forrest

Ashby is the facility’s director.

¶6 On February 29, 2012, plaintiff and Walter Pegues filed a pro se civil rights complaint

against Jumper, Ashby, and DHS alleging violations of the United States Constitution and the

Illinois Constitution. Defendants filed separate motions to dismiss, arguing plaintiffs failed to

comply with Illinois pleading requirements and failed to state claims upon which relief could

be granted. Following a hearing on July 26, 2012, the trial court dismissed plaintiffs’ complaint

with leave to amend.

¶7 On September 27, 2012, plaintiffs filed a five-count amended complaint, naming only

Jumper and Ashby as defendants. Plaintiffs alleged in count I defendants failed to provide

treatment that offered a realistic opportunity to meet the statutory requirements for release

from confinement, in violation of the fourteenth amendment. In count II, plaintiffs alleged a

violation of substantive due process, claiming defendants failed to clearly define rules of

conduct, failed to provide a grievance procedure, and enacted policies based on security issues

that do not exist, and additional allegations involving the inadequacies of the treatment

program, such as a lack of sufficiently trained staff.

¶8 Plaintiffs alleged in count III a violation of their right to free speech by defendants

restricting plaintiffs’ access to various forms of media based on security or therapy concerns.

Specifically, plaintiffs alleged defendants published and distributed a list “of movies and video

games that are restricted, and/or prohibited based upon their [Motion Picture Association of

America (MPAA)] or [Entertainment Software Rating Board (ESRB)] rating, and ‘Unrated’

media is deemed contraband and prohibited.” Plaintiffs asserted these guidelines effectively

ban unrated media. Plaintiffs alleged the rating systems are not a proper basis for determining

which media may be purchased or possessed by residents of a detention and treatment facility.

Plaintiffs admitted a resident handbook provides unrated media may be submitted to a

treatment team for approval for resident-viewing purposes. Plaintiffs asserted, however, “[i]t

would be a futile effort to *** seek approval because *** defendants have already declared ***

the media *** prohibited.”

¶9 Plaintiffs alleged further, in count IV of the amended complaint, a claim for violation of

due-process rights under the fourteenth amendment where defendants’ actions resulted in

overly restrictive and punitive conditions. In count V, plaintiffs alleged defendants unlawfully

confined them without legal authority and treated them in a manner inconsistent with other

mental-health facilities. Plaintiffs sought declaratory relief that their constitutional rights had

been violated, compensatory and punitive damages, and injunctive relief.

¶ 10 On November 1, 2012, defendant Jumper filed a motion to dismiss pursuant to section

2-619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619.1 (West 2010)).

Jumper argued counts I, II, and IV of plaintiffs’ amended complaint were barred by res

judicata. The case on which defendant Jumper based his res judicata defense was Schloss v.

Ashby, No. 11-CV-3337, 2011 WL 4804868 (C.D. Ill.) (hereinafter, Schloss), filed by

plaintiffs against defendants on August 26, 2011, in the United States District Court for the

Central District of Illinois, Springfield. In Schloss, sexually violent detainees at Rushville

(including plaintiffs) sued the facility to contest, in part, the constitutionality of a

gaming-console ban. The district court dismissed plaintiffs’ initial complaint for failure to state

a claim, concluding the plaintiffs did not state a claim under the first amendment that the ban

on gaming consoles was not rationally related to a legitimate institutional goal. The district

-3-

court granted plaintiffs leave to file an amended complaint, directing plaintiffs to detail only a

due-process claim based on an alleged lack of rehabilitative treatment. Plaintiffs filed an

amended complaint on November 14, 2011, which the district court dismissed on August 10,

2012, for failure to state a federal claim. Plaintiffs appealed and the Seventh Circuit Court of

Appeals dismissed the appeal for failure to pay the required docketing fee.

¶ 11 In his motion to dismiss, defendant Jumper also argued plaintiffs’ amended complaint

should be dismissed because plaintiffs failed to state claims upon which relief could be

granted. On November 9, 2012, defendant Ashby filed a motion to dismiss plaintiffs’ amended

complaint incorporating defendant Jumper’s arguments.

¶ 12 Also on November 9, 2012, plaintiffs sought an extension of time to respond to defendants’

motions to dismiss, from a previously agreed-to date of November 15, 2012, to December 30,

2012. Plaintiff Schloss asserted he was preparing to represent himself at trial in another matter

and had limited access to legal research.

¶ 13 Without ruling on plaintiffs’ motion for an extension of time, the trial court granted

defendants’ motions to dismiss with prejudice in an order dated November 20, 2012.

Specifically, the court found plaintiffs failed to state a claim upon which relief could be

granted and some of plaintiffs’ claims were barred by res judicata. On November 29, 2012,

plaintiff Schloss filed a notice of appeal. Plaintiff Pegues is not a party to this appeal.

¶ 14 II. ANALYSIS

¶ 15 In the case sub judice, the trial court granted defendants’ motions to dismiss under section

2-619.1. A motion under section 2-619.1 allows a party to “combine a section 2-615 motion to

dismiss based upon a plaintiff’s substantially insufficient pleadings with a section 2-619

motion to dismiss based upon certain defects or defenses.” Edelman, Combs & Latturner v.

Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164, 788 N.E.2d 740, 747 (2003). On appeal, the

trial court’s dismissal of a complaint under section 2-619.1 is reviewed de novo. Morris v.

Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402, 911 N.E.2d 1049, 1052 (2009).

¶ 16 We first address the trial court’s dismissal of plaintiff Schloss’s amended complaint

pursuant to section 2-619, finding “some of Plaintiffs’ claims are barred by res judicata.” In

their motions to dismiss, defendants argued counts I, II, and IV of plaintiffs’ amended

complaint were barred by res judicata. On appeal, defendants argue the amended complaint, in

its entirety, is barred under the doctrine of res judicata.

¶ 17 In his reply brief, plaintiff admits counts I, II, IV, and V of his amended complaint are

barred by the doctrine of res judicata, stating he does not wish to “re-litigate a previously

decided case or claims.” Defendant states he is pursuing “Count III only as it pertains to the

unreasonable restrictions of Free Speech.”

¶ 18 This court accepts plaintiff’s concession that counts I, II, IV, and V of his amended

complaint are barred by the doctrine of res judicata. As to count III of plaintiff’s amended

complaint, defendants did not argue in their motions to dismiss that count III was barred by res

judicata. Res judicata is an affirmative defense, which a defendant forfeits if not raised.

Village of Maywood Board of Fire & Police Commissioners v. Department of Human Rights,

296 Ill. App. 3d 570, 578, 695 N.E.2d 873, 879 (1998). Defendants are barred from raising this

defense for the first time on appeal.

-4-

¶ 19 We next address the trial court’s dismissal of plaintiff’s amended complaint pursuant to

section 2-615, finding plaintiff’s amended complaint failed to state a claim upon which relief

could be granted. Plaintiff has abandoned counts I, II, IV, and V on appeal. As a result, on

appeal, we address only whether count III states a claim upon which relief may be granted.

¶ 20 A section 2-615 motion attacks the legal sufficiency of the complaint. Turner v. Memorial

Medical Center, 233 Ill. 2d 494, 499, 911 N.E.2d 369, 373 (2009). “To survive a motion to

dismiss for the failure to state a cause of action, a complaint must be both legally and factually

sufficient.” Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 434, 876 N.E.2d

659, 664 (2007). “The question presented by a section 2-615 motion to dismiss is whether the

allegations of the complaint, when taken as true and viewed in a light most favorable to the

plaintiff, are sufficient to state a cause of action upon which relief can be granted.” Turner, 233

Ill. 2d at 499, 911 N.E.2d at 373. Illinois is a fact-pleading jurisdiction in which the plaintiff

must allege specific facts to bring the complaint’s allegations within a recognized cause of

action. Turner, 233 Ill. 2d at 499, 911 N.E.2d at 373. The trial court should only grant a section

2-615 motion where it appears that the plaintiff can plead no set of facts that would entitle him

to relief. Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 244, 666 N.E.2d 687,

691 (1996).

¶ 21 In count III of his amended complaint, plaintiff claimed defendants violated his civil rights

by restricting access to various forms of media based on security or therapy concerns. Count III

states:

“The actions of the [DHS] dafendants [sic] as alleged in paragraphs 1 to 49 constitute

unreasonable and unwarranted restrictions on plaintiffs’ right to freedom of speech and

expression, in violation of his rights, privileges, and immunities guaranteed by the First

Amendment to the United States Constitution, and Article I, Section 4 of the Illinois

Constitution, and further violate our rights as guaranteed by restricting our access to

various forms of media based upon security or therapy concerns.”

¶ 22 “The fact of confinement and the needs of the penal institution impose limitations on

constitutional rights, including those derived from the First Amendment ***.” Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977). Restrictions on an inmate’s

constitutional rights are valid if they are reasonably related to legitimate penological interests.

Turner v. Safley, 482 U.S. 78, 89 (1987). Although defendants recognize this standard is used

for prisoners’ claims, this is the standard the Seventh Circuit Court of Appeals has applied to

constitutional claims by civil detainees. See Lane v. Williams, 689 F.3d 879, 884 (7th Cir.

2012). As the Seventh Circuit Court of Appeals explained in Lane:

“Because Turner tells courts to consider the challenged regulation in relation to the

government’s legitimate interests, it would not be too difficult to adapt its standard for

claims by civil detainees. To do so, courts would only have to recognize the different

legitimate interests that governments have with regard to prisoners as compared with

civil detainees.” Lane, 689 F.3d at 884.

Thus, we believe an analysis utilizing the factors set forth in Turner is appropriate here despite

the fact that plaintiff is not a prisoner. See Bell v. Wolfish, 441 U.S. 520, 546 (1979) (“A

detainee simply does not possess the full range of freedoms of an unincarcerated individual”

because “[t]he fact of confinement as well as the legitimate goals and policies” of the

institution limit constitutional rights.); Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003)

-5-

(persons confined as sexually violent “may be subjected to the ordinary conditions of

confinement”).

¶ 23 To determine the reasonableness of defendants’ conduct, restricting plaintiff’s access to

various forms of media based upon security or therapy concerns, this court will consider four

factors: (1) whether there is a “ ‘valid, rational connection’ between the prison regulation and

the legitimate governmental interest put forward to justify it”; (2) “whether there are

alternative means of exercising the right that remain open to prison inmates”; (3) what “impact

accommodation of the asserted constitutional right will have on guards and other inmates”; and

(4) whether there is an “absence of ready alternatives.” Turner, 482 U.S. at 89-90.

¶ 24 DHS has promulgated rules detailing the rights of sexually violent persons detained in a

secure residential facility. Plaintiff admits the Rushville Treatment and Detention Facility “is

operated by [DHS] and is governed by Illinois Administrative Code Title 59.” Section

299.330(e) of Title 59 of the Illinois Administrative Code (Administrative Code) provides

sexually violent persons “may only acquire personal property in accordance with provisions of

this Part or posted rules established by the Program Director where the resident is assigned.”

59 Ill. Adm. Code 299.330(e) (2000). The Administrative Code further provides:

“1) Possession and use of certain classes of property may be restricted by the

Program Director when necessary to protect the resident or others from harm.

2) The professional responsible for overseeing the implementation of a resident’s

services plan may, with the approval of the Program Director, restrict the right to

property when necessary to insure implementation of the services plan, protect such

resident or others from harm, or as part of the Resident Behavior Management

System.” 59 Ill. Adm. Code 299.330(e)(1), (2) (2000).

¶ 25 In a memorandum dated January 13, 2011, the program director advised residents of the

Rushville Treatment and Detention Facility regarding “MOVIE AND GAME PROHIBITED

LISTS.” Although the memorandum was not attached to the pleadings before the trial court,

defendants include in their appendix before this court a copy of the memorandum, and both

plaintiff and defendants cite the memorandum in their appellate briefs. Accordingly, we will

consider the memorandum here. The memorandum advised residents they may purchase or

possess R-rated movies and MA-rated video games except for those on a prohibited media list

“which contains titles with sexual and/or graphic violent themes deemed especially

counter-therapeutic.” Further, a note appearing on the list of restricted movies included the

following: “All movies must be rated by the Motion Picture Association of America (MPAA).

Any movies that are un-rated or not rated by the MPAA are restricted. The only exceptions are

movies made prior to the MPAA rating system (1968) that are general, non-graphic movies.”

A similar note appearing on the list of restricted video games states: “All un-rated Video Game

Demos and Rating Pending (RP) Video Games are restricted.”

¶ 26 Plaintiff does not allege he was denied all media or access, only that he does not have

unfettered access to media opportunities. This is not a claim upon which relief may be granted.

¶ 27 Specifically, plaintiff makes a limited attack on section 299.330 of Title 59 of the

Administrative Code but admits the treatment and detention center “is operated by [DHS] and

is governed by Illinois Administrative Code Title 59.” Plaintiff challenges the reliance on the

rating systems to screen out movies and video games for inmate viewing. Specifically, plaintiff

asserts he has been denied access to “medias of legal, educational and of a religious subject

matter because they are not rated or governed by the ESRB or the MPAA.” However, in his

-6-

amended complaint, plaintiff stated a resident handbook provides unrated media may be

submitted to a treatment team for approval for resident viewing purposes. Plaintiff admits he

did not avail himself of this procedure, deeming it futile.

¶ 28 Here, the program director articulated a “ ‘valid, rational connection’ ” between the media

restrictions and the therapy concerns. Turner, 482 U.S. at 89. As the memo states, the therapy

concerns arise from R-rated movies and MA-rated video games “which contain[ ] titles with

sexual and/or graphic violent themes.” Striking down these restrictions could negatively

impact therapy concerns. See also McKune v. Lile, 536 U.S. 24, 36 (2002) (“[R]ehabilitation is

a legitimate penological interest that must be weighed against the exercise of an inmate’s

liberty.”); Turner, 482 U.S. at 91 (rehabilitation and maintaining security are legitimate

penological interests); Allison, 332 F.3d at 1079 (preventing escape and assuring safety of

others are legitimate institutional interests). In addition, the treatment and detention center has

an interest in promoting rehabilitation and a therapeutic environment by preventing residents

from viewing movies that may reinforce cognitive distortions or sexual deviance and playing

video games that may encourage antisocial or obsessive behavior. See Hedgespeth v. Bartow,

No. 09-CV-246-SLC, 2010 WL 2990897, at *7 (W.D. Wis. July 27, 2010). Moreover,

defendants have a legitimate security interest in making uniform rules regarding property

ownership and media restrictions to prevent discord, extortion, and unauthorized property

exchanges among patients, as well as legitimate security and rehabilitative interests in keeping

potentially damaging materials out of the institution altogether. See Hedgespeth, 2010 WL

2990897, at *8.

¶ 29 To be sure, the ban means “un-rated or not rated” movies made after the MPAA rating

system (1968) and “un-rated Video Game Demos and Rating Pending (RP) Video Games” are

presumptively unavailable for purchase or possession. However, the resident handbook creates

a procedure by which residents may present specific unrated movies and video games for a

determination by a treatment team whether the movie or video game may be purchased or

possessed.

¶ 30 With regard to the second and fourth Turner factors, plaintiff has alternate means to

exercise his first amendment rights that do not involve the purchase or possession of movies

and games titled with sexually or graphically violent themes, while the facility has no ready

alternatives to avert the therapy concerns posed by movies and games with sexually or

graphically violent themes other than restricting them. See Turner, 482 U.S. at 90. Plaintiff has

access to all R-rated movies and MA-rated video games that do not appear on the “MOVIE

AND GAME PROHIBITED LISTS” and additional media through allowable books,

newspapers, magazines, television, and radio. He is not constitutionally required to have

access to all media. See Singer v. Raemisch, 593 F.3d 529, 539 (7th Cir. 2010) (banning of

fantasy role-playing games was rationally related to legitimate penological interests and the

prisoner had alternative means of exercising his right, such as possessing other reading

materials or playing allowable games).

¶ 31 Finally, unrestricted access to all media would likely interfere with the efforts to treat

residents and operate the facility in a secure and orderly manner. See Turner, 482 U.S. at 90. It

is dubious the constitution would require a treatment and detention facility for sexually violent

persons to permit its residents the unfettered right to purchase or possess movies and games

with sexually or graphically violent themes deemed “counter-therapeutic.” Such an

interpretation would ignore the substantial deference afforded the facility’s administrators. See

-7-

Beard v. Banks, 548 U.S. 521, 528 (2006) (“[C]ourts owe ‘substantial deference to the

professional judgment of prison administrators.’ [Citation.]”).

¶ 32 For the reasons set forth above, we find the media restrictions to be reasonable and not

unconstitutional. Consequently, plaintiff failed to state a cognizable first-amendment claim

against defendants and count III of his complaint was properly dismissed with prejudice.

¶ 33 Plaintiff next argues the trial court erred by granting defendants’ motions to dismiss

without ruling on his motion for an extension of time to respond to defendants’ motions to

dismiss. We disagree.

¶ 34 Following a hearing on July 26, 2012, the trial court entered an order granting defendants’

motions to dismiss plaintiff’s initial complaint. Plaintiff and defendants agreed plaintiff would

have until October 1, 2012, to file an amended complaint, and defendants would have until

November 1, 2012, to respond. Plaintiff would then have until November 15, 2012, to reply to

defendants’ responses.

¶ 35 Plaintiff filed his amended complaint on September 27, 2012. On November 1, 2012, and

November 9, 2012, defendants filed their motions to dismiss plaintiff’s amended complaint.

Also on November 9, 2012, plaintiff sought an extension of time, from November 15, 2012, to

December 30, 2012, to respond to defendants’ motions to dismiss. Plaintiff asserted he was

preparing to represent himself in trial and had limited access to legal research.

¶ 36 Without ruling on plaintiff’s motion for an extension of time, the trial court granted

defendants’ motions to dismiss with prejudice in an order dated November 20, 2012.

Specifically, the court found plaintiff failed to state a claim upon which relief could be granted

and some of plaintiff’s claims were barred by res judicata. Plaintiff did not file a motion to

reconsider the court’s order granting defendants’ motions to dismiss. Instead, plaintiff filed a

notice of appeal on November 29, 2012.

¶ 37 “The [trial] court has the right and duty to control its own docket.” Hutchcraft v.

Independent Mechanical Industries, Inc., 312 Ill. App. 3d 351, 354, 726 N.E.2d 1171, 1174

(2000). Further, the court is vested with wide discretion in granting or denying extensions of

time to file pleadings or motions. See 735 ILCS 5/2-1007 (West 2010); Ill. S. Ct. R. 183 (eff.

Feb. 16, 2011). Here, the court had discretion to grant defendants’ motions to dismiss

plaintiff’s amended complaint without allowing plaintiff additional time to respond to the

motions. We conclude the trial court did not abuse its discretion by granting defendants’

motions to dismiss plaintiff’s amended complaint and, thereby, denying plaintiff’s motion for

an extension of time to respond to defendants’ motions.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we affirm the trial court’s judgment.

¶ 40 Affirmed.

-8-