Holmes, 364 F.3d 862, 868 (7th Cir. 2004); Ortloffy. United States, 335 F.3d 652, 656 (7th Cir. 2003).
Although detainees have a First Amendment right to send and receive mail, that right does not preclude
officials from examining mail to ensure that it does not contain contraband, MWolffy, McDonnell, 418
U.S. 539, 576 (1974); Rowe, 196 F.3d al 782, Furthermore, the occasional interference with a
detainee’s mail does not rise to the level of a constitutional violation, and a plaintiff must demonstrate
a systematic pattern or practice with interfering with the detainee’s mail. See Bruscine v. Carlson, 654

F. Supp. 609, O18 (S.D. HH. 1987); see also Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000)

(sporadic and short-term delays in reociving mail do not constitute a First Amendment violation).

Plainti{falleges that numerous letlers sent to his attorneys (Winston & Strawn, public defenders,
appellate defenders) were tampered with, that pleadings he prepared and addressed to courts were never
delivered, and that letters sent to him fram attorneys and courts were never received, (R. 132-3, Defs’
Rule $6.1 Statement, Pl.’s Depo. p. 15.) Plaintiff further alleges that for a period of time Bud had

plaintiff's mail delivered to Budz’s office, and that Budz would put plaintiff's mail back into the system

to be delivered to plaintiffa day or two days later, During that time, Budz “delayed, opened it, read it,”
including plaintiffs legal mail. (/d. at 14-15.) One Federal Express package from his attorney at
Wiuston & Strawn was tracked as delivered to the Joliet Facility, but plaintiff never reecived it. (/d.
atl.) Plaintiff specifically referred to two cases, one in the Seventh Circuit and the other in this court
before Judge Andersen, where pleadings he drafted were never delivered. Plaintiff contends that both
the Seventh Circuit and Judge Andersen dismissed plaintiff's cases for want of prosecution, but then
reinstated them, (/d. at 11-12.) Allegedly, there were additional instances of lost or tampered with
mail. But, plaintiff could not specifically refer to them because documents were lost during his transfer
from the Joliet lacility to Rushville. Plaintiff stated that many of the documents demonstrating

tampering with mail were submitted with the Seventh Circuit case. (dd. at 9, 12.) Plaintiffcontended

Page 20 of 30


a lwo-slep approach when considering if qualified immunity applies: (1) whether the facts, taken in the
light most favorable to the plaintiff, show that the defendant violated a constitulional right; and (2)
whether thal constitutional right was clearly established at the time of the alleged violation. Wheeler,
539 F.3d at 639 (citing Saucier v. Katz, 533 U.S, 194, 201 (2001)); see also Pearson v. Callahan, - US.
--, 129 S. CL. 808, 818 (2009) (the Supreme Court recently clarified thal Saucier’s two-step approach
is not mandatory and courts may address the (wo inquiries in either sequence).

Although qualified immunity is an affirmative defense, once a defendant raises it, the plaintiff
has the burden to defeat it, Wheeler, 539 F.3d al 639, To overgome a qualified immunity defense, the

plaintiff must demonstrate that the constitutional right was clearly established at the time of the

violation, A plaintiff can show this by presenting then-exisling cases thal “both articulated the right at

issue and applicd it to a factual circumstance similar to the one at hand.” Boyd v. Owen, 481 F.3d 520,
326-27 (7th Cir. 2007) (queting Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 620 (7th Cir.
2002)). ‘The cases “must demonstrate that, at the time the defendants acted, it was certain that their
conduct violated the law,” and the unlaw fulness of their actions must be apparent. Boyd, 481 F.3d at
26 (quoting Doyle, 305 3d at 620). “in the absence of precedent, a right may be clearly established
where the contours of the right are sufficiently clear thal reasonable persons would have understood
their conduct to be unconstitutional, or where the constitutional violation is so patently obvious that
widespread compliance with the law has prevented the court from reviewing it.” Boyd, 481 F.3d at $26-
27 (citing Nanda v. Moss, 412 P.3d 836, 844 (7th Cir, 2005)),

In this case, plaintiff docs not cite to, and this court is unable to locate, a case from belore the
defendants’ actions that applicd procedural due process rights of advance notice and an opportunity to
call wilnesses to disciplinary actions taken against SVPA detainees. (See R. 141-1, Pl.’s Opposition
to Defs.” Motion for Summary Judgment, pp. 10-12.) Plaintiff instead contends that the contours of
his due process rights were sufficiently clear from prior case law. (/d.) He cites to Youngherg v.

Komeo, 457 U.S. 307, 321-22 (1982); Seling v. Young, 531 U.S, 250, 265 (2001); and Wolff v.

Page 14 of 30


Unlike plaintiff's general allegations of retaliation for being litigious, his assertions that he was
disciplined and placed in segregation for 60 days as a result of “going over Budz’s head” to obtain
protein supplements are sufficiently specific. Plaintiff stated in his deposition that BC members told

plaindff “that T should not have any attorneys contact Mr. Dyalin because it... pissed Mr. Buds olf

having DHS calling him about a medical issue, and that’s why T was going to segregation.” (R. 132-3,

Defs.’ Rule 56.1 Statement, Exh. C, Pl.’s Depo., p. 60.)

The December 20, 2001, report states that the BC found that plaintiff falsely reported to a doctor
that plaintiff had lost 30 pounds and that plaintiff falsely informed a Joliet Facility staf{ member that
a doctor had prescribed dictary supplements for plaintiff. (R. 113, Pl.’s Summary Judgment Motion,
Tab 11.) Ifthe BC report is true, it would indicate that plaintiff was placed in segregation because he
gave false information, and not because of a retaliatory motive. The defendants, however, have not
presented evidence supporting the report.

Plaintiff has submitted a grievance filed shortly after being placed in segregation. Plaintiff
complained that he requested to call as witnesses Security Therapy Aids Tanya Clairmont and Steve
Mantzke, who were with plaintiff when he visited his doctor. (R. 141-2, Pl.’s Response to Defs.’
Summary Judgment Motion, p.15.) Plaintiff stated that Ckunnont and Mantzke would have stated that
plaintiff had lost weight due to his Graves disease and that the doctor directed plaintiff to continue
laking protein powder, Plainti ffalso complained that a BC member told plainti[f at the December 2001
mecting, “if you had not gotten] your lawyer involved, none of this would be happening,” and that
Budz told plaintiff that Buds had ordered that plaintiff be charged. (/d. at pp.15-16.) Plaintiff also
submitted the deposition testimony of Tanya Clairmont, a Department of Human Services employee

who escorted plaintiff for a doctor’s visit. Clairmont stated that she was present when the doctor stated

“something about ordering [plaintiff] a protein shake or powder thing.” (R. 113, Pl.’s Summary
Judgment Motion, Tab, 17, Clairmont’s Depo., p. 32.) Clairmont did not speak at the BC meeting that
resulted in plainti!?’s segregation. However, she remembered telling the Jolict Facility staff member

in charge of the BC meeting that “[t]he doctor did order it.” (/d. at 33.)

Page 24 of 30


Cir. 2006), The types of evidentiary material available to support a Local Rule 56.1 statement are
numerous, but the most common materials include affidavits, deposition transcripts, and business
documents. Malec v. Sanford, 191 F.R.D, 581, 584 (N.D. Ill. 2000). In addition, “hearsay is

inadmissible in summary judgment proceedings to the same cxtent that it is inadmissible in a trial.”

Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir, 1997); see, e.g, Keri v. Board of Tr. af Purdue

Univ, 458 F.3d 620, 630 (7th Cir. 2006).

A litigant's failure to respond to a Local Rule 56.1 Statement results in the court considering the
uncontroverted stalement as true, Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir, 2006), The
court may disregard statements and responses that do not properly cile to the record, See Cichon y.
Fxelon Generation Co., L/L.C., 401 1'.3d 803, 809-10 (7th Cir. 2005); Brusie v. Heinemann's Jac., 121
13d 281, 284 (7th Cir, 1997), The requirements for responses under Local Rule 56.1 are “not satisfied
by evasive denials that do not fairly meet the substance of the materia] facts asserted.” Bordelon, 233
F.3d at 528.

Although courts must construe pro se pleadings liberally, see Kaba v. Stepp, 458 F.3d 678, 681
(7th Cir. 2006), a plaintill's pro se status does not absolve him from complying with these Local Rules.
See Greer v. Board of Fd. of City af Chicago, 267 I'.3d 723, 727 (7th Cir, 2001); see also McNeil v.
United States, 508 U.S. 106, 113 (1993) (we have never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse mistakes by those who proceed without counscl.”)

With these standards in mind, the court turns to the claims and evidence of this case. Because
plaintiff's claims do not stem [rom one set of facts, but instead are based upon distinct events and
conditions, this opinion discusses the facts associated with each claim in the section for that claim.

DISCUSSION
I. Behavior Commiitee Meetings

Plaintiffs summary judgment motion argues that he was denicd duc process with respect to four

Page 5 of 30


that, even though the two cases he specifically referred to were reinstated, they were delayed for
considerable amounts of time. (/d. at 14.)

Viewing the evidence in a light most favorable to plaintiff, a question of fact remains with this
issuc. Plaintil! specifically referred to only two cases where his pleadings to courts were not delivered
and he admits that both cases were reinstated, which may not be cnough to succeed on a mail-tampering
claim, See Castille v. Cook County Mail Room Department, 990 F.2d 304, 306 (7th Cir. 1993)
(Seventh Circuil indicated that three instances of tampered-with mail over a period of nine months,
though cnough to withstand a motion to dismiss, would likely not establish a constitutional violation).
However, plaintiff indicated that there were numerous other instances, and that grievances about these
instances were inthe file ofthe Seventh Circuit case, (/d. a9, 11-12.) Also, plainti{fs description of
Buds having plainu(fs mail delivered to Budz, reading the mail, and then putting it back into the
system, as well as another staff member placing mail undemeath cabinets and control centers, (id. at
13-15,), alleges a systematic pattern or practice of interference with his mail, and nat simply occasional
or sporadic delays. See Bruscino, 654 F. Supp, al 618; see also Zimmerman, 226 F.3d at 573.
Accordingly, the court denies the defendants’ summary judgment motion with respect to this claim.
If, RETALIATION

Plaintiff alleges that the defendants retaliated against him (1) because he filed lawsuits and

grievances and refused to participate in Lreatment programs, and (2) because he complained about not

receiving dielary protein supplements in accordance with a doctor’s orders. (See R. 1, Complaint {4 13,
84.) Plaintiff states that false disciplinary charges were levied against him, visitation and phone
privileges were restricted, his mail was tampered with, and he was kept in a more aggressive area of the
Joliet Facility (‘the loudest, filthiest place [he had] ever been in almost 30 years of imprisonment”).
(R. 132-3, Dels.’? Rule 56.1 Statement, Exh, C, Pl.’s Depo., pp. 54-55.) Plaintiff specitically refers to

one incident! when he contacted one of his attorncys because he was not able to receive dictary

Page 21 of 30


breakfast in a bag, which was never hot and which contained the same cereal for weeks, All meat was
processed and was usually processed turkey. When chicken was served, it was undercooked. Milk was
ofien spoiled, l’resh vegetables were never served, and the vegetables that were served were cooked
beyond recognition into mush. In addition to being unappelizing, the food was not nutritious, i.c., low
in protein, high in fat, and cooked in grease. Plaintiff takes medication for high cholesterol and
triglyceride levels, which he blames on the food at the Joliet Facility. Often, detainees, including
plaintiff, became ill immediately after eating the food, and staff members became nauseated from the
smell. (Ro 1, Complaint 4] Ll4-15; R. 132-3, Defs’ Rule 56.1 Statement, Pl.’s Depo. pp. 70-81.)

The Constitution requires the defendants to house plaintiff under humane conditions, which
includes providing him with “adequate food.” Sein, 512 F.3d at 893, see also Antonelli v. Sheahan, 8)
F.3d 1422,1432 (7th Cir, 1996). “The state must provide an inmale with a ‘healthy, habilable
environment.’ ‘This includes providing nutritionally adequate food that is prepared and served under
conditions which do not present an immediate danger to the health and well being of the inmates who
consume iL” French vy. Qwens, 777 F.2d 1250, 1255 (7th Cir, 1985) (cilations omitted), To establish
a constitutional violation, plaintiff must show both that he suffered a sufficiently serious deprivation
and that the defendants acted with deliberate indifference to the condition. Sain, 512 F.3d at 894. He
must thus establish both that the meals at the Joliet Facility denied him of “the minimal civilized
measure of life's necessities,” see Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir.2006), and that the
defendants were aware of and disregarded this condition, Sai, 512 I'.3d at 894,

The summary judgment evidence reveals that a question of fact remains with this issue. Plaintiff
stated in his deposition, “we were (requently served milk that was spoiled and outdated, coagulated and
putrid. We were frequently served chicken that was still bloody, undercooked or basically raw.” (R.
132-3, Defs.” Rule 56.1 Statement, Exh. C, Pl’s Depo, p.70.) He stated that meat was submerged in
grease, and he ofien became immediately ill while eating it. Vegetables “were cooked beyond

”

recognition into mush.” (/e.) Plaintiff often threw up from the food. (dd. at 72-73) He skipped about

60% of the meals served and ate tuna fish, chili, and Ramen Noodles obtained from the commissary,

Page 27 of 30


he makes only broad assertions of retaliation. In response to defendants’ summary judgment motion,

plaintiff continues to state in a general manner that “|t/here is absolute proof that Plaintiff was retaliated
against for being litigious.” (R. 141-1, Pl.’s Opposition to Summary Judgment Motion, p. 9.)

Budz acknowledges in an affidavit that he repeatedly said over the years that “lawsuils lake up
a lot of [his] working ime that could be spent more productively in program development areas.” (R.
132-2, Dets.” Rule 56.1 Statement, lixh. B, Budz’s Affidavit 5.) However, he also states that he never
told plaintiff not to file grievances or that things would be better if he stopped filing lawsuits. (/d.)
Budz’s comments that detainees’ suits are ime-consuming may reveal a general gripe, but they do not
establish retaliation, particularly since plaintiff docs not connect the comments to any particular action.
See, e.g. Babcock, 102 F.3d at 275 (correctional officer’s comment that an inmate should “stop filing
all that shit” may have demonstrated a sinister intent; however, a plaintiff must still show that adverse
conduct was taken that would not have been absent a retaliatory intent).

Plaintiff's general assertions of retaliation for having filed suits and grievances and for not
participating in treatment programs are insufficient to sustain this claim. “[WJhen confronted with a
motion for summary judgment, a party who bears the burden of proof on a particular issue may not rest
on ils pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a
genuine issuc of material fact which requires trial.” Beard v. Whitley County REMC, 840 F.2d 405, 410
(7th Cir. 1988); see also Roger Whitmore's Auto. Services, Inc. vy. Lake County, Illinois, 424 F.3d 659,
669 (7th Cir. 2005), Plaintiff must do more than show that he engaged in protected activity and that
he was later adversely treated. He “must present something by which a jury could connect the dots
between” the protected activity and the adverse treatment to demonstrate retaliation. Roger Whitmore's
Auto, Services, Ine, 424 F.3d at 669. Plaintiff has not done this in this case. Accordingly, the court
grants summary judgment for defendants on plaintiffs general retaliation claim.

B. Retaliation Based on Plaintiff's Complaining About Not Receiving Protein
Supplements

Page 23 of 30


hour of recreation oulside the room with the restraint of shackles). Plaintiff stated that his segregation
involved confinement to his room for several hours a day, during which he was denied his personal
property of a radio, television, typewriter, and electric razor. He had access to the dayroom for several
hours each moming and cach afternoon. He was given a jumpsuit to wear, he had a change of
underwear, as well as sheets und linens for his bed; he had writing materials; and he was allowed
visitors, He was restrained with only handcuffs when leaving his unit, and Ieg irons were uscd only for
trips outside the facility. (R. 1, Complaint, 4] 96-99; R. 132-3, Defs.’ Rule 56.1 Statement, Exh. C,
PL.’s Depo., pp. 65-69.) The conditions described by plaintiff do not approach the level of treatment

in West or in Youngherg. See McGee v. Thomas, 2007 WT. 2440990, 3 (F.1D. Wis. 2007). The due

process right that the West Court considered clearly established in light of Youngberg was not clearly
established for the restrictions imposed upon plamti!.

Fven with respect to pretrial detainees, the Seventh Circuit in Rapier did not expressly
determine whether placement in segregation for a rule violation while incarcerated constituted
punishment. Instead, the Rapier Court concluded that, even if placement in segregation was
punishment, the law was not clearly established at the time of the jail officers’ actions and they were
thus entitled to qualified immunity. See Rapier, 172 F.3d at 1006. ‘The Seventh Circuit did not make
clear that “[a] pretrial detainee cannot be placed in segregation as a punishment for a disciplinary
infraction without notice and an opportunity to be heard; due process requires no less” until its decision
in Aiggs v. Carver, 286 F.3d 437,438 (7th Cir. 2002). The Seventh Circuit did not apply Higgs to SVP
detainees until Westin June of 2003, See West, 333 F.3d at 748.

The defendants acknowledged in their Answer to the Complaint that, “beginning in 2003,
residents were given advanced notice of Behavior Committee meetings.” (R. 98, Dels.? Answer to

Complaint, p. 3.) Providing such procedural due process protections in 2003 accords with the cases

discussed above. This court cannot find that the defendants were unreasonable for not providing such

Page 18 of 30


pictures, things thal had absolutely no relevance to a security issue, ... were takcn away from me.” (R.
132-3, Defs.” Rule 56.1 Statement, Exh. C, Pl.’s Depo., p. 66.) He had to wear a yellow jumpsuit and
handcuffs during visits, visits were limited to one hour, and, when being transported outside the facility,
he had to wear a jumpsuit, handeufis, log irons, and a waist chain, which embarrassed and humiliated
him. (R, 1, Complaint, J 96-99.) He acknowledged that he had underwear, socks, toiletries, library
books, and shects and blankets for his bed, and that he was taken to the day room for several hours in
the morning and several hours in the afternoon, There was a television in the day room, but it was set
to the Black Entertainment Television station, (R, 132-3, Defs.’ Rule 56.1 Statement, Exh. C, Pl.’s
Depo., pp. 40-41, 66-69.)

D. Fourth Behavior Committee Meeting

The fourth BC meeting occurred in January 2003. Although the record does not contain the
report of that meeting, plaintifl’s complaint and deposition indicate that an incident between plaintiff

and STA Douglass Collins precipitated the meeting. Plaintiff states that Collins regularly harassed

plaintiff by aggressively searching his female visitor and by accusing plaintiff of cngaging in

inappropriate behavior with his visitor. (R. 1, Complaint {J 49-51.) On January 11, 2003, Collins
harassed plainti lf by standing in extremely close proximity to plaintiff and his visitor. When the visitor
asked to use the bathroom, Collins ordered that a guard search the visitor by touching her pockels, and
Collins inappropriately held his ear to the bathroom door to listen to her use the toilet. When plaintiff
asked to use the bathroom, Collins made plaintiff use the bathroom in his unit of the facility, far from
the visiting room. That afternoon, plaintiffasked Collins why he harassed plaintiff. Collins replicd that
he did not know what plaintiff was talking about. Plaintiff then told Collins, “You can treat me like
this, but you can’t treat my visitor like she is a criminal.” Collins yelled in response, “Are you

threatening me?” (/d. at $4] 54-55.)

Page 10 of 30


Viewing the evidence in a light most favorable to plaintiff, he cannot demonstrate that the noise
levels at the Joliet Pacility created an unconstitutional condition of a confinement. He acknowledges
that the noise was not constant. It was “really loud” during the day, bul “it came and went.” During
evening hours, it was excessively loud from dinnertime to lockup, but then quicted down around 10:45
p.m. (R. £32-3, Defs’ Rule 56,1 Statement, Exh. C, Pl.’s Depo, p. 85.) Also, several of the noises
plaindff complained of: - detainees playing dominoes and a guard’s whistling (id. at 86, 93-94) reveal
that his complaints involved noises causing only an annoyance as opposed to excessive exposure to loud
noises. l‘urthermore, many of the noises, such as keys in locks, doors closing, guards yelling “hall run”
(d.}, obviously occurred during the day and were “reasonably related to a legitimate and non-punitive
government goal,” and thus did not constitute an unconstitutional condition of his confinement.
Antonelli, 81 F.3d at 1427-28.

The summary judgment evidence reveals that plaintiff cannot establish that he was exposed to
continuous excessive noise levels that constituted a Due Process violation, The court grants summary
judgment for the defendants on this issue and dismisses this claim with prejudice

CONCLUSION

lor the reasons stated above, the court denies plaintiff's motion for summary judgment. The
court grants in part and denies in part defendants’ motion forsummary judgment. Plaintiffmay proceed
with his claims that he was retaliated against with 58-60 days of segregation for having complained
about not being able to get dietary protein supplements, that the defendants interfered with his right to
receive and send mail, and that the quality of the food constituted a due process violation with his

confinement. Plaintiffs other claims are dismissed with prejudice. The court will appoint counsel for

plaintiff for his remaining claims. A status heaj et for July 6, 2009, at 9:00 a.m.
ENTER: |. _ J ‘ ee

Robert W. Gettleman
nited Stutes District Court Judge

DATE: HAY 20, 2009

Page 30 of 30


A. First Behavior Committee Meeting

Plaintiff states that, in May 2001, one of his attorneys asked plaintiff to provide names of
persons who could testify about plaintiffs daily activities and general behavior at the Joliet Facility.
Because plaintiff was not cnrolled in any treatment programs, he was only able to provide the names
of security guards and two staff members, Plaintiff states that the guards had no objection to being
called as witnesses, but that staff member James Kitanski refused. “When Kitanski indicated... his

unwillingness, Plaintiffdid not persist and simply thanked him, and walked away.” (R. |, Complaint

s

421.) A day later, a Joliet lacility staff person told plaintiff to report to the Behavior Committee
(“BC”), which consisted of Hinze (committee chairperson), Tooley, and Kegel. (id. at | 22; R. 132-3,
Pl.'s Depo., p. 27.) The BC did not inform plaintiff of the specific charge against him, but only
generally informed him that he was accused of giving false information to an employee. Plaintilfstates

that he was not allowed lo interview witnesses, (R. 1, Complaint J] 22-25.)

A report of a BC meeting from Juno 12, 2001, states that plaintiff committed a rule violation
of “giving false information to an employee.” (R. 113, Pl.’s Motion for Summary Judgment, Tab 3.)
The report states that Kitanski refused plaintiff's request to testify on plaintiff's behalf and thal, when
Kitanski informed Security Therapy Aid (“STA”) Kim Sandstrom that her name was on a list of
character witnesses prepared by plaintiff, Sandstrom stated that she never agreed to testily for plaintif!
or W have her name included on such a list. Sandstrom stated in a deposition that she never gave
plaintiff permission to put her name ona list, that she wrote a report stating that plaintiff had asked her
to be a character witness and that she refused, and that she never testified about this incident
(presumably at the June 12, 2001, meeting). (dd. at Tab 9, Sandstrom’s Depo., pp. 24-38.)

The BC determined that plaintiff had committed a major rule violation of giving false
information to an employee and reduced plaintiff's status from “responsible” to “general.” (/d. at Tab

3.) The report does not specify the effects of the reduction in status; however, plainti{l states that he

Page 7 of 30


disviplinary hearings (known as Behavior Committee (“BC”) meetings) in May or June 2001, December

2001, and January 2003. Plaintiff states that he did not receive advance notice of the charges before

the hearings and that he did not have the opportunity to call witnesses or present evidence at the

hearings, (R. 111, PL’s Rule 56.1 Statement {{[ 10-18; see also R.113, Pl.’s Summary Judgment

Motion.) The defendants acknowledge in their summary judgment motion that plaintiff did not receive
advance notice of the charges or the ability to call witnesses . The defendants contend, however, that
such due process protections did not apply to plaintiff's BC meetings because the restrictions he
received did not amount to punishment. They further contend that, even if the imposed restrictions
required advance notice and the ability to call witnesses, the defendants are entitled to qualified
immunity because the right to the procedural protections was not clearly established at the time of the
BC’s actions. (R. 134, Defs’ Momorandum in Support of Summary Judgment, pp. 5-9.)

As discussed in the analysis part of this section, plaintif(s cntitloment to advance notice and the
ability to interview witnesses depends upon whether the restrictions resulting from the BC meetings
constiluted punishment and, if they were punishment, whether the punishment rose above the tevel of
de minimus. If such procedural duc process protections applicd to the restrictions, the court must then
consider whether the right was not clearly established al the time, such that defendants are entitled to
qualified immunity, The facts leading to the BC meetings are not necessarily material for determining
these issues. In fact, neither plaintiff nor the defendants address the background facts for disciplinary
hearings in their Rule 56.1 Statements. (See generally R. 111, Pl.’s Rule 56.1 Statement; R. 132, Defs.”
Rule 56.1 Statement, {| 14-17). The court nonetheless briefly discusses the facts preceding the four
BC meetings. Some of these facts are relevant for plaintiffs other claims, and a discussion of these

facts assists lo betler understand this case.

Page 6 of 30


pn

protections before then. Plaintiff has not overcome his burden of demonstrating that the defendants are
hot entitled to qualified immunity with respect to the BC actions in this case. Accordingly, the court
denies plaintiffs motion for summary judgment, grants the defendants’ motion for summary judgment
Jor this claim, and dismisses with prejudice plainti(P?s claim asserting due process violations with
respect to the four BC actions taken in 2001 and 2003.

Tl. MAIL

Plaintiffconiends that the defendants tampered with his legal mail. Specifically, plainti(falleges
that “legal and personal mail, both incoming and outgoing, [has] been suspiciously ‘fost,’” (R. 1,
Complaint ¢ 13), and that “Federal Express packages sent to the Plaintiff from his lawyers containing
iniportant legal documents are signed by TDCF staff and are cither undelivered or are delayed in
delivery for as long as two weeks, Frequently, mail to the Federal Courts, both incoming and outgoing,
is tampered with and never reaches the Courts, resulting in dismissals of cases.” (/d. at] 116.) Plaintiff
states that, for a period of time, his mail was delivered to Timothy Budz’s office, opened and read, and
then put back into (he mail system to be given to plaintiff. that Robert Glotz sometimes grabbed
plaintiffs mail and held onto it for a while or returned letters, and that Douglas Collins cither threw
away plainuifs letters or hid them in drawers or under filing cabinets. (R. 132-3, Defs.’ Rule 56.1
Statement, Exh. C, Pl.’s Depo., pp. 14-20.)

Inmates and detainees have protected First Amendment interests in both sending and receiving
mail. See Thornburgh v, Abbott, 490 U.S. 401 (1989); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir.
1999), With respect to legal mail, a detainee is entitled to greater protections because of the potential
lor interference with his right of access to the courts, Rowe, 196 L'.3d at 782. Llowever, to demonstrate
that a right of access to the courts has been adversely affected, a detainee must demonstrate that he was
prejudiced, ie., that he had a non-frivolous legal claim that was frustrated or impeded by the

defendants’ mishandling of mail. Marshall vy. Kaight, 445 F.3d 965, 968-69 (7th Cir. 2006); Lehn y.

Page 19 of 30


Chad to lock up at 9:00 al night; everybody else got lo stay out until 10:45. And... I was on reduced
status, which reduced my privileges, including not being able to go oul to, .. certain special events.”
(R. 132-3, Dells.’ Rule 56.1 Statement, Exh. C, Pl.’s Depo., p. 39.) Plaintiff also alleged that the BC's
report was used against him ina civil commibment proceeding, (R. 1, Complaint {| 37.)

Lon Third Behavior Committee Meeting

On December 20, 2001, the BC again found that plaintiffhad given false information. (R. 113,
PL’s Summary Judgment Motion, Tab 11.) According to plaintiff, a doctor diagnosed plaintiff with
Graves disease, a hyperthyroid, protein deficient condition. After protein supplements purchased for
plaintiff were returned by Joliet Facility staff members, plaintiff had one of his attorneys contact a
Department of Human Services attorney. Plaintiffcontends that the BC falsely charged him with giving
false information about having a doctor's order for protein supplements in retaliation for “going over
their heads.” (R. 1, Complaint 4] 85-89.)

The December 20, 2001, BC mecting report states that plaintiff informed a staff member that
a doctor had prescribed dictary supplements for plaintiff. An investigatory phone call to the doctor
revealed that plaintiff falsely reported to the doctor that plamtiff had recently lost 30 pounds. The
doctor denied that he ordered protcin supplements for plaintiff, and records revealed that plaintiff had
no significant weight loss while at the Jolict Facility. The BC determined that plaintiffhad committed
arule violation of “giving false information,” and the BC placed plaintiff on “close status,” (R. 113,
Pl.’s Summary Judgment Motion, Tab I 1.)

“Close status” or “close management status” al that ime meant confinement in a segregation
unit of the Joliet Facility. (R. 132-3, Defs.’ Rule 56.1 Statement Exh. C, Pl.’s Depa, p. 40.) Plaintiff
states that he was placed in segregation for 58-60 days. He was “locked in a barren prison cell and all
nly property was locked up in storage. You know, even when | was... in segregation in prison, J had

a TV set... all of my stuff, my typewriter, my hot pot, my razor, my clothing, my legal material, my

Page 9 of 30


In Light of Clairmont’s deposition testimony and the lack of other evidence demonstrating the
BC's motives for their recommendation lo place plaintiffin segregation, there is a question of material
fact on this issue. Plaintiff may have been placed in segregation for having “gone over Budz’s head.”
The court thus denies summary judgment (or the defendants on this claim. Plaintiffmay proceed
with his claim that the defendants disciplined him and placed him in segregation for having complained
about not gelling protein supplements.
{1¥. CONDITIONS IN SEGREGATION
Plaintiff alleges that he was placed in sogregation for a period of 58-60 days and that the
conditions therein were unconstitutional, He slates (hat, while in segregation he did not have access to
his personal property (radio, television, clectric razor, typewriter, hot pot, and certain clothing), he was
locked in a room for extended periods of time; he had io wear a yellow jumpsuit and handcuffs during

visils; visits were limited to one hour; and, when being escorted outside the facility, hc had to wear a

jumpsuit, handcuffs, leg irons, and a waist chain, which embarrassed and humiliated him. (R. 1,

Complaint, 4 96-99.) Plaintiff stated that his room was barren and too small to exercise, and he was
not allowed to do push-ups or sit-ups in the day room. (R. 132-3, Def.’ Rule 56.1 Statement, Exh. C,
Pls Depo., pp. 65-68.) Plaintiff stated that he was taken (o the day room for several hours in the

morning and several hours in the afternoon. There was a television in the day room, but it was set lo

the Black Lintertainment Television station, (dd. at 68-69.)
As previously discussed, certain procedural protections may have applied in order to place

plaintiff in segregation, see West, 333 l.3d at 748; however, the conditions in segregation did not rise

to the level of unconstitutional. The Constitution does not require that delainees receive “optimal
treatment.” See West, 333 F.3d at 748. Instead, “all the Constitution requires is that punishment be
avoided and medical judgment exercised.” Jd. at 749. ‘The Constitution requires that detainees be
housed under “humane conditions” and provided with “adequate food, clothing, shelter, and medical
care.” Sein, Wood, 512 F.3d 886, 893-94 (7th Cir, 2008). The fact that “detention interferes with the

detaincee’s understandable desire to live as comfortably as possible and with as little restraint as possible

Page 25 of 30


IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Brad Lieberman, )
Plaintiff, ;
Vv ) Case No. 03 C 2009
Timothy Budz, et al. } Judge Robert W. Gettleman
Defendants. }

MEMORANDUM OPINION AND ORDER

Plaintiff, Brad Lieberman, is a civil detainee committed under the Ilinois Sexually Violent
Persons Commitment Act (“SVPA”), 725 1LCS 207/1, et seq. Currently, he is detained at the Rushville
Treatment and Detention Facility. He initiated this 42 U.S.C. § 1983 suit in October of 2003, while he
was detained at the Joliet Treatment and Detention Facility (“Joliet Facility”), where he was confined
from 2000-2006. The case was initially assigned to the Honorable Harry Lcincnweber. Plaintiff's
complaint named 17 defendants and asserted numerous challenges to the conditions at the Joliet
Facility. The court dismissed several claims on initial review, and later stayed the case pending the
resolution of a case with similar claims. 7imey-Bey y, Peters, No. 99 C 2861, During the stay, the
Executive Committee of this Court reassigned the case to the Honorable Mark Filip. In November of
2006, the court lifted the stay,

By order of June 19, 2007, Judge Filip dismissed cight claims when he granted in part

defendants’ motion to dismiss,' Six claims remain: (1) plaintiff did not receive advance notice of

' The June 19, 2007, Memorandum Opinion summarizes Plaintiff's offenses, the history of

his custody and detention, and his litigation history. ‘he court refers to the background discussion

in that order, rather than restating thal history in its entirety here. (Docket Entry #95, Memorandum

Opinion of June 19, 2007 (J. Filip)). Bricfly noted, Brad Lieberman (aka “the plumber rapist”) was

convicted in 1980 in Lake and Cook Counties for rape and attempted rape. As described by the

Minois Appellate Court, Plaintiff's multiple rapes involved the same modus operandi: he entered
(continucd...)


I, The Right to Advance Notice and the Opportunity to Call Witnesses

Persons detained under the SVPA are entitled to at least the same rights as pretrial detainces.
See West v, Schwebke, 333 F.3d 745, 748 (7th Cir. 2003). “A person held in confinement as a pretrial
detainee may not be subjected to any form of punishment for the crime for which he is charged.”
Rapier v. Harris, 172 F.3d 999, 1002-03 (7th Cir. 1999) (citing Bell v. Wolfish, 441 U.S, 520, 535
(1979)). “Unlike sentenced prisoners . .., pretrial detainees, serving no sentence and being held only
to answer an accusation at trial, have no expectation that, simply by virtue of their status as pretrial
detainees, they will be subjected to punishment.” Rapier, 172 F.3d al 1003, A preirial detainee may

be punished for his actions while incarcerated; however, due process requires that he receive certain

procedural safeguards (advance notice of the charge at least 24 hours before the hearing and an

Opportunity to present witnesses and evidence to refute the charge). Such protections apply before the
detaince can be subjected to treatment beyond the “normally expected incidents” of his confinement
Jd. at 1004-05 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)).

“A particular measure amounts to punishment when there is a showing of express intent to
punish on the part of detention facility officials, when the restriction or condition is not rationally

related to a levitimate non-punitive government purpose, or when the restriction is excessive in light

of that purpose.” Rapier, 172 F.3d at 1005. However, even ifa restriction is imposed with the intent
to punish, the restriction may be so minor or common to the detainee’s confinement that due process
does not require thal the detainee be afforded advance notice. See MeGee y, Thomas, 2007 WL
2440990, 4 (LL.D. Wis. 2007) (a SVP detainee’s disciplinary penalty of a reduction of his status did not
require procedural due process protections because the privileges he lost were not an atypical condition

of his confinement), Lhrlich v. Mantzke, 2002 WL 265177, 3 (N.D. Ill. 2002) (Judge Kocoras)

(reduction of detainee’s classification, earlier lock-up times, and restriction of other privileges were de

minimus and did nol rise to a level to require constitutional duc process protections).

Page 12 of 30


On January 15, 2003, plaintiff received a piece of paper directing him to appear for a BC
mecting for “possible intimidation and threats.” Plaintiff never received a copy of the charge, nor was
it read to him. (/d. at 4] 56.) Plaintiff was not placed in segregation, but he reecived six months of
reduced privileges, i.c., less visits, carlicr lock-up times, reduction in state-pay points, and less
recreational acliviies, (fd. at 64; R. 132-3, Defs.’ Rule 56,1 Statement, Exh. C, Pl.’s Depo., p. 44.)

E. Analysis

Viewed ina light most favorable to plaintiff, the evidence shows that he did not receive advance
noli¢g or an opportunity Lo interview witnesses with respect to four BC meetings. The lesser restrictions
resulting from the BC meetings included earlier lock-up times, shorter visitation periods, reduction in
pay, reduction in classification status, and reduction of certain recreational activities. (R. 1, Complaint
44 24, 33, 64, R. 132-3, Dels.” Rule $6.1 Statement, Exh. C, Pl.’s Depo., pp. 40-41, 43-44.) The more
scrious restrictions included confinement to a segregation unil for 58-60 days, confinement to his room
for five to seven days, separation from his personal items and an inability to exercise during these
periods, unit restriction for thirty days, and the wearing of handcuffs during visits and additional
restraints during trips outside the Joliet Facility. (R. 1, Complaint 33, 96-99; R. 132-3, Dels* Rule
56.1 Statement, Exh. C, Pl.’s Depo., pp. 39-41, 66.)

The defendants argue that, constitutionally, plaintiff was not cntitled to advance notice and the
opportunity lo call wilnesses with respect to lhe BC meetings. (R. 134, Defs.” Memorandum in Support
of Motion for Summary Judgment, pp. 5-7.) They further contend that they are entitled to qualified
immunity because plainti(f did not have a clearly established right to such procedural due process

protections at the me of the BC actions. (dd. at 8-9.)

Although it is unclear whether the restrictions were serious enough to require advance notice

and an opportunity to cal] witnesses, the right to such procedural protections was not clearly established

at the time of the BC’s actions, and the defendants are entitled to qualified immunity.

Page 11 of 30


received “reduced privileges for 6 months; disfavorable housing unit assignment; reduction in ‘slale pay
points’; reduced visiting time; carlicr lock-up time and other restrictions.” (R. 1, Complaint 4 24.)
Plaintif'may have also been confined to his room [or five to seven days and becn on unit restriction for
30 days, which would have prevented him from “going to the yard,” prevented him from attending
certain special events, and required earlier lock-up limes. (R. 132-3, Defs.” Rule 56.1 Statcment, Exh.
C, Pl.’s Depo., p. 39, 43-44) (itis unclear from plaintiff's deposition whether these restrictions followed
his first or scoond BC meeting).

B, Second Behavior Committee Mecting

Several days after the June 12, 2001, BC meeting, plaintiffwas again called before the BC, A
report dated June 17-18, 2001, states that plaintiff committed a rule violation of “intimidation and

threats to an omployee.” (R. 113, Pl.’s Summary Judgment Motion, Tab 4.) Kitanski had reported that

plaintiff shook his fist at Kitanski, which he believed was a threatening gesture. (dd, at Tab 10,

Kilanski’s Depo., pp. 49-50.) Again, plaintiff did not have advance notice of the meeting. The BC
found that plaintiffhad committed a rule violation of intimidating an employee, and reduced plaintiff's
status from “general” to “close.” (R. 113, PL’s Summary Judgment Mation, Tab 4.)

According lo plainuiff, the Joliet Facility did not have a segregation unit al thal time, “Close
management status” meant that he was confined to his room for a period of five to seven days and was
on unit restriction for at Jeast 30 days. (R. 132-3, Defs.’ Rule 56.1 Statement, Exh. C., Pl.’s Depo,
pp.43-44.) He was “denied any access to outdoor or indoor exercise. Plaintiff had to be handcuffed any
time he left the unit, Plaintif(’s visits were reduced to one hour and he had to wear handeuffs during
visits. Plaintiff was denied his audio, visual and electronic equipment. Plaintiffs ‘stale pay’ points
were reduced to 1-point per week Ile was forced to lock-up in his prison cell even earlier.” (R. 1,
Complaint {[ 33.) “They took my property. They stopped me from having ajob. Thad reduced visiting

limes. Reduced ability to eam points. Once I was off the lock down status, I could not go to the yard,

Page 8 of 30


supplements. Plaintiff's attorney contacted an altomey associated with the Johet Facility and stated that
a doctor had instructed (hat plaintiff should be taking dielary supplements. Plaintiff contends that, as
a result of “going over Budz’s head,” the defendants falsely charged plaintiff with a rule violation and
punished him with 60 days of segregation. (/d, at 60-61.)

To establish a claim of retaliation, a plaintiff must demonstrate that he engaged in protected
activity and that the defendants retaliated against him based upon thal activity. Babcock v. White, 102
F.3d 267, 275 (7th Cir, 1996); see also MeLlroy v. Lopac, 403 I'.3d 855, 858-59 (7th Cir, 2005). A
plaintiff must show a chronology of events from which retaliation can be inferred and show that
retaliation was a motivating factor for the defendants’ conduct. Babcock, 102 F.3d at 275. Even ita
plainii(f establishes a retaliatory motive, he must also demonstrate that the complained of action would
not have occurred without the retaliatory motive. Retaliation does nol exist ifthe complained of actions
would have still occurred. fe. (citing Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287
(1977)); Roger Whitmore’s Auto. Services, Ine. v. Lake County, Ill, 424 F.3d 659, 669 (7th Cir. 2005),

The summury judgment evidence shows that an issue of material fact remains with plaintiff's
claim that the defendants retaliated against him because he complained about not getting protein
supplements: however, he cannot establish that the defendants retaliated against him for filing suils and
grievances,

A. Retaliation Based Upon Filing Suits and Grievances

The summary judgment evidence reveals that plaintiff makes only general assertions that the
defendants retaliated against him for filing suits and grievances. Plaintiff stated in his deposition that
the defendants harassed many detainees by filing disciplinary actions against them and by tampering
with their phone calls and mail. (R. 132-3, Defs’ Rule 56.1 Statement, Exh. C, P1.’s Depasition, pp.
§$-56.) When asked why such actions constituted retaliation, as opposed to simply harassment, plaintiff
responded, “[bJlecause Mr, Budz repeatedly told me, as [he] did other people, that things would get a
whole lot better if we would stop suing him so much and make him spend all of his time in court. And
Glolz said things along the same line.” (/e. at 56.) Other than plaintiff's reference to these comments,

Page 22 of 30


which he cooked using a hotplate in his room. (/e. al 73-74, 83-84.) Plaintiff stated that he had dozens
of conversations with ‘Timothy Budz about the food, and that Budz would simply respond that the food
was not that bad. (ed. at 77-79.)

Plaintiff submitted a number of grievances while he was at the Joliet Facility Plaintilf
complained that he has Graves disease, required a balanced meal and fresh vegetables, and requested
that he be allowed to reecive food brought to him from outside the lacility like other detainees. (R. 141+
1, Pl’s Response to Defs,” Summary Judgment Molion, pp.39-40.) He further complained that
breakfast was always the same (a bagel and the same cereal), that lunches and dinners were so bad that
staff members commented that it smelled “terrible,” that detainees were continuously served turkey or

turkey bi-products, and that there were no fresh vegetables. Plaintiff again asked that he be allowed to

have someone bring him food from outside the facility. (/d. at 44-45.) In another grievance, plaintiff

complained that lunches were always cold cuts or hot dogs without buns, And, in another grievance,

he stated that builer was served with hamburgers as a condiment. (fe, at 47, 50-51.) Responding to the
grievances, Jolict Facility staff members determined that plaintiffs health did not require a special diet,
that he did not qualify to have food brought in, that the same cereal would not be served more than two
days in a row, and that his complaints of food smelling bad were unfounded. (/d. at 41-42, 53-54, 59.)

Although plaintifi’s gricvances were not completely ignored, the summary judgment evidence
shows that he regularly complained about the food, that he repeatedly asked that he be allowed for food
to be brought to him from outside the facility, and that he often forewent meals served at the facility.
In response to plaintiffs claim, the defendants have submitted an affidavit from Timothy Budz, the
former director of the Jolict Facility. Budz avows that a registered dictician reviewed and approved the
menus. (R. 132-2, Defs.’ Rule 56.1 Statement, Exh. B.) The contract between Aramark and the Joliet
Vacility states that Aramark was to provide well balanced meals, that all food would meet USDA
specifications, and that all menus were reviewed and approved by a dietician. (R. 141-1, Pl.’s

Opposition to Summary Judgment Motion, Exh. A, Contract, p. 6.)

Page 28 of 30


and citations omitted); Celorery, 477 U.S. at 322-26. A genuine issue of material facl is not
demonstrated by the mere existence of “some alleged factual dispute between the partics,” Anderson,
477 U.S. at 247, or by “some metaphysical doubt as lo the material facts,” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only
ifa reasonable finder of fact could return a decision for the nonmoving party based upon the record.
See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris lae., 216 F.3d 596 (7th Cir, 2000),

i, Northern District of Mlinois Local Rule 36,1 Statements

Because plainuiffis apro se litigant, the defendants served him with a“Nolice to Pro Se Litigant
Opposing Motion for Summary Judgment” as required by Northern District of Illinois Local Rule 36.2.
‘The notice explains the consequences of failing to properly respond to a motion for summary judgment
and to a statement of material facts under Fed. R. Civ. P. 56(e) and Local Rule 56.1.

When determining summary judgment motions, the court derives the background facts from the
parties’ Local Rule 56,1 Statements. Local Rule 56.1 assists the court by “organizing the evidence,
identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed
fact with admissible evidence.” Bordelon v. Chicago Sch, Refarm Bd. of Trs., 233 F.3d 524, 527 (7th
Cir. 2000). Specifically, Local Rule 56.1(a)(3) requires the moving party to provide ‘a statement of

a

material facts as to which the moving party contends there is no genuine issue.” Ammons v. Aramark
Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). The nonmoving party must admit or deny
every factual statement proffered by the moving party and conciscly designate any material facts that
establish a genuine dispute for trial, Schrott v, Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.
2005). ‘The parties’ statements must contain short numbered paragraphs including references to the
affidavits, parts of the record, and other supporting materials. 4; see also Ammons, 368 F.3d at 817.

The purpose ofa Local Rule $6.1 Statement is to identify the relevant evidence supporting the

material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th

Page 4 of 30


MeDonnell, 418 U.S. 539, 558 (1974), to support his contention. (R. 141-1, Pl.’s Opposition to Defs.”
Motion for Summary Judgment, p. 11.) In Youngberg, the Supreme Court held that the physical bodily
restraint for several hours a day of an involuntarily conunitted person (a severely mentally retarded
person in that case) violated due process. The court stated that civilly committed persons “are entitled
to more considerate treatment and conditions of confinement than criminals whose conditions of
confinement are designed to punish.” Youngberg, 457 U.S. at 321-22. The restraint necessary for such
detainces was to be determined by professional judgment. 7 In Seling, the Court upheld the
constitutionality of a state statute allowing for the confinement of sexually violent persons after they
served their criminal sentences, The Court determined that such confinement was civil, as opposed to
punitive and thus criminal, in nature. Citing Youngberg, the Seling Court stated that the confinement
of involuntarily committed sexually violent persons had to “bear some reasonable relation to the
purpose for which persons are committed.” Seding, 531 U.S. at 265. In Wolff, the Court held that
convicted prisoners were entitled to procedural due process rights of advance notice and an opportunity
to call witnesses and present evidence before a disciplinary action resulting in loss of good-time credit.
Wolff 418 U.S. at564-67, Although Youngherg and Seling addressed (he substantive due process rights
of civilly committed persons, neither case, even when read together and in conjunction with Wolff, made
sufficiently clear the process due a civil detainee being disciplined for his actions while committed.
At the time of the defendants’ actions in plaintiff's casc, courts relied on Saedin when
addressing the constitutional implications of segregation and other restrictions for SVP detainees.
Thielman v. Leean 282 F.3d 478, 482-83 (7th Cir, 2002); Leamer v, Fauver, 288 F.3d 532, 546 (3rd
Cir. 2002), “Under Sandin, the mere fact of placement in administrative segregation is not in itself’
enough to implicate a liberty interest; the liberty interest only exists if that placement is an ‘atypical and
significant hardship’ relative to others similarly sentenced.” Leaner, 288 F.3d at 546; see alyo

Thielman, 282 V.3d at 483 (“to state a procedural duc process claim deriving from state law, Thielman

Page 15 of 30



the procedural due process right was not clearly established at the time of the restriction, and the
defendants are entitled to qualified immunity.

Not unul June of 2003 did the Seventh Circuit address the due process nights of civilly
committed sexually violent persons subjected to segregation confinement. West v. Schwebke, 333 F.3d
745, 747-48 (71h Cir, 2003). In West, sexually violent detainees were confined for periods ranging from
20 to 80 days to a type of segregation termed “therapeutic seclusion.” Such confinement consisted of

placement in a cell that contain] cd] only a conerete platform (which servefd} as a bed),
a toilet, and a sink. Detainces in scclusion often were deprived of clothing and other
amenitics. Secluded detainees were allowed out, in shackles, one hour a day on
weekdays and not at all on weekends (when staffing levels were lower), When the stal?
thought that secluded detainees might be ready for retum to the general population, they
were allowed out two hours a day, but still kept in restraints.

West, 333 F.3d at747, Citing Youngberg and Seding, the Seventh Circuit found that such seclusion had
to be reasonably related to the purpose of the confinement. The West Court further rejected a qualified
immunity argument, noting that Youngberg and the Court's application of Youngherg in Foucha v.
Louisiana, 504 U.S, 71, 79-80 (1992) ? to “civil detainees who have committed criminal acts,” made
sufficiently clear that the type of confinement in West could be justified only on security or treatment
grounds, West, 333 F.3d at 748-49,

Plaintiffs segregation and room confinement did not compare to the conlinement in Youngberg:
(physical restraint of retarded person for several hours a day) or in West (seclusion in a room with only

a toilet, a sink, and a conerete platform for a bed; often no clothing or other amenitics; and only one

“In Foucha, $04 U.S. at 79-80, the Supreme Court addressed the constitutionality of
continued civil commitment of persons found not guilty by reason of insanity beyond the time they
were found no longer dangerous, ‘The /oucha Court cited Youngberg for the general principle that
freedom from physical restraint based upon arbitrary governmental action is the core concern of the
Due Process Clause. Foucha and Seling, and their citation to Youngberg, may have clarified that
the confinement of persons not serving a criminal sentence had to be civil in nature, as opposed to
punitive. tlowever, the contours of what rights are due for a civilly committed person facing
disciplinary action are not clear from these cases. See Fhrlich, 2002 WT. 265177 at*4 (applying
qualified immunity to Behavior Commitice actions similar to plaintiff's).

Page 17 of 30


Plaintiff has filed a motion for summary judgment for his claim that the defendants denied him
procedural due process rights with disciplinary hearings, The parties have responded to cach others’
motions.

For the following reasons, the court denics plaintiff's summary judgment motion. The court
denies in part and grants in part the defendants’ summary judgment motion. The court denics summary
judgment for the defendants for plaintiff's claims that the defendants interfered with his mail, that the
defendants retaliated against plaintiff when they disciplined him for complaining about not getting
protein supplements, and that the quality of the food was so lacking that it amounted to a constitutional
violation. Plaintiff may proceed with these claims. The court grants summary judgment for the
defendants for plaintiff's other claims and dismisses the other claims with prejudice.

STANDARD OF REVIEW
I. Summary Judgment under Federal Rule of Civil Procedure 56

Summary judgment “should be rendered ifthe pleadings, the discovery and disclosure materials
on file, and any affidavils show (hal there is no genuine issue as to any material fact and that the movant
is entiled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Spath v. Hayes Wheels int'l-Indiana, Inc., 211 F.3d 392, 396 (7th Cir. 2000). In
determining the existence of a genuine issuc of material fact, the court construes all facts in the light
most favorable to Lhe nonmoving party and draws all reasonable inferences in favor of that party. See
Anderson v. Liberty Lobby, Ine., 477 U.S, 242, 255 (1986); Spath, 211 F.3d at 396.

The movant bears the initial burden of demonstrating that there is no genuine issue of material
fact and that judgment based upon the uncontested facts is warranted, See Celotex Corp., 477 U.S. at
325. Ifthe movant mects this burden, the nonmoving party must “go beyond the pleadings and
affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact

which requires trial.” Aorello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks

Page 3 of 30


during confinement docs not convert the conditions or restrictions of detention into ‘punishment.’” Bell
v. Wolfish, 441 U.S. 520, 537 (1979).

With respect to a majority of the conditions of plainuffs segregation (confinement to small
room, denial of personal items, limited access to the day room, only one station set on the television),
courts have found that similar or worse conditions were not unconstitutional. See Sain, 512 F.3d at 894
(SVP detaince’s subjection to an uncomfortable room with poor ventilation, foul odor, insects, and
uncomfortable temperatures did not stale a claim of an unconstitutional condition); see also White v.
Monohan, 2008 WL 4682225, 3 (N.D.LI. 2008) (finding that similar conditions did not rise lo an
unconstitutional level), With respect to plaintiff having to wear a bright colored jumpsuit, handcuffs,
and other restraints during visits and outside trips, such conditions concern the Joliet Facility’s day-to-
day management of its detainees and “[we]re not ‘atypical’ and ‘significant’ hardships in relation to [the
detainee]’s confinement.” Thielman v, Leean, 282 F.3d 478, 484 (7th Cir. 2002) (requiring SVP
detainee lo wear a waist belt and handcuffs when being taken outside the facility did not invoke
constitutional concerns); /argett v. Adams, 2005 WL 399300, *8 (N.L. Ill. January 14, 2005) (Judge
(einenweber) (wearing a bright colored jumpsuit was not unconstitutional given that it allows
employees to more quickly identify detainees of a certain status). With respect to plaintiff's inability
to cxercise for 60 days, not allowing a detainee to exercise for an extended period of me can rise to
the level ofa constitutional violation. Hlowever, courts generally use 90 days as the duration of exercise
deprivation lo invoke constitutional concerns. See Thomas v. Rumos, 130 F.3d 754, 763-04 (7th Cir.
1997),

Viewing the evidence in a light most favorable to plaintiff, he cannot establish a constitutional
violation with the conditions of his confinement while in segregation, Accordingly, the court grants
summary judgment for defendants on this issue, and dismisses this claim,

v. FooD
Plaintiff alleges that the quality of food at the Jolict Facility was so bad that it rose to the level

ofaconstitutional violation, He asserts a string of complaints and states that detainces usually received

Page 26 of 30



charges before disciplinary hearings, and the defendants did not afford him the opportunity to call
wilnesses or present evidence at the hearings; (2) the defendants mishandled plaintiffs mail; (3) the
defendants retaliated against plaintiff for filing suits and gricvances and for complaining about not
receiving protein supplements; (4) the conditions in segregation confinement were unconstitutional; (5)
the quality of the food at the facility was so low that it amounted to a constitutional violation; and (6)
plaintiff had to cndure excessively loud noise. In November of 2007, plaintiff settled with and
dismissed his claims against Defendants David Kegel, Shan Jumper, Fran Aden, Travis Hinze,
Raymond Wood, and Liberty Health Care Corporation. Remaining defendants are Timothy Budz,
Thomas Monahan, Linda Baker, James Kitanski, Sy Hopson, Robert Glotz, Shane Tooley, Douglas
Collins, and G.C. Henderson.

In March of 2008, the Executive Committee again reassigned (he case lo the Honorable James
Moran. In April of 2009, the Committee then reassigned the case to this court. The remaining

defendants have filed a motion for summary judgment with respect to the six remaining claims.

‘(...continued)

the homes of his female victims by posing as a plumber or as a police officer working part time as
a plumber; stating that he was looking for a Icak, he walked with the victim through the apartment
lo ensure that no one else was home; he indicated that the leak was behind the victim’s bedroom
closet and instructed the victim to empty the closet; while the victim removed items from the closet,
he would grab her from behind, hold a knife to her throat, instruct her not to scream, and inform her
that be had cut up prior victims. People v. Lieberman, 438 N.E.2d 516, 518-19 (ILApp. 1 Dist.
1982). Afier plaintiff served 20 years of a 40-year sentence and prior to his scheduled January 9,
2000 release date, the State of Tlinois commenced commitment proceedings under the SVPA, which
allows for the commitment of persons with a “a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.” 725
TLCS 207/5(b) (West Supp.2000). After appeals to the state appellate and supreme courts, a
commitment trial was ultimately conducted five years later, and a jury found that plaintiff was a
sexually violent person. See Lieberman v. Thomas, 505 F.3d 665, 668 (7th Cir, 2007). Plaintiff filed
several state and federal actions challenging his commitment, all of which have been denied, As
noted by the Seventh Circuit when denying one of thasc challenges, “|t|o say that Licberman
challenged the State of Illinois’ petition to have him civilly committed would be an understatement.”
Lieherman v. Thomas, 505 F.3d at 666, 668-72.

Page 2 of 30


Although there is evidence as to what the quality of the food was supposed to be, the defendants
provide no evidence indicating that the food served met the standards set out in Aramark’s contract.
The defendants do not submit any reports or affidavits {rom dicticians who reviewed the menus or from
Aramark employees attesting to what food was served and how it was prepared,

Accordingly, viewing the evidence in a light most favorable to plaintiff, he may be able to
establish that the quality of the food served at the facility was so bad thal if was an unconstitutional
condition, ‘The defendants’ motion for summary judgment on this issue is denied, and plaintiff may
proceed with this claim.

VI. NOISE

Plaintiff contends that the noise levels at the Jolict Facility were so loud that they rendered the
condition ofhis confinement unconstitutional, He states that the staffiook no steps to control the noise
levels and even contributed to them. Specifically, he asserts that he could not hear his television at full
volume with his door closed, (R. 1, Complaint 9 118.) “Tt was really loud during the day most of the

time, but” the loudness “came and went.” (R. 132-3, Defs.’ Rule 56.1 Statement, Exh. C, Pl.’s Depo.,

p. 85.) During the day, plaintiffheard such noises as keys going inio locks, metal doors slamming shut,

guards yelling “hall run” every 20 to 30 minutes to indicate that detainees could enter or exil their
rooms, and detainees banging dominoes on the table. (7d. at 86-87, 90.) At around 10:45 p.m. it quicted
down, (4) At night, plainuiff sometimes heard the sounds of staff using a buffer on the floors, staff

hanging up keys, and whistling from one nighttime sialf person. (/d. at 86.)

Continuous, excessive noise may rise to the level of an unconstitutional condition of
confinement. See Sanders v. Sheahan, 198 F.3d 626, 628 (7th Cir. 1999); Antonelli v, Sheahan, 81 F.3d
1422, 1433 (7th Cir. 1996). The pretrial detainee in Antonelli alleged that “the noise occurred every
night, often all night, interrupting or preventing his sleep,” which was sufficient ta overcome a motion
to dismiss, Antonelli, 81 F.3d at 1433. However, an allegation of only “a few hours of periodic loud
noises that merely annoy[ed], rather than injure[d]” does not state a claim of an unconstitutional

condition, Lunsford v, Bennett, 17 F.3d 1574, 1580 (7th Cir, 1994),

Page 29 of 30


Plaintiff’s restrictions of carlier lock-up times, shorter visitation periods, reduction in pay, and
reduction of certain recreational activilies were de minimus. (R. 1, Complaint {ff 24, 33, 64; R. 132-3,

Defs.” Rule $6.1 Statement, Exh. C. Pl.’s Depo,, pp. 40-41, 43-44,) Such impositions were not

significant hardships with respect to the conditions of his confinement and are too minor to warrant

constitutional duc process concerns. Even if the defendants imposed these restrictions with an intent

to punish, the restrictions arc too minor to trigger procedural due process concerns. See McGee, 2007

WI. 2440990 at * 4; Ehrlich, 2002 WT. 265177 at * 3; see also Thielman, 282 F.3d at 484.
The only restrictions plaintiff received that may have involved procedural due process concerns

appear to be his segregation for 38-60 days and possibly his room confinement for five to seven days,

i.c., the restrictions imposed following the December 2001 and the June 18, 2001 BC meetings. (See
R. 132-3, Defy." Rule 56.1 Statement, Exh. C, Pl.’s Depo., pp. 39-43, 66.) Although one court has
indicated that segregation confinement for an SVPA detainee docs not necessarily constitute
punishment where the detainee retained certain freedoms, McGee, 2007 WT. 2440990, this court has
not decided the issue and need not decide it in this case. Even if plaintifi’s segregation and room
confinement imposed in June and December of 2001 constituted punishment, thus requiring
constitutional procedural protections of advance notice and an opportunity to interview and call
witnesses, the law defining the applicable procedural safeguards was not clearly established at the time
ofthe BC actions, The defendants’ actions with plaintiff's BC mectings were reasonable such that they
are entitled to qualified immunity.
2 Qualified Immunity

The doctrine of qualified immunity shields public officials who perform discretionary duties
Irom lability and protects those “who act in ways they reasonably believe to be lawlul.” Wheeler v.
Lawson, $39 F.3d 629, 639 (7th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S, 635, 638-39
(1987). “The defense provides ample room for mistaken judgments and protects all but the plainly

incompetent and those who knowingly violate the law.” Wheeler, 539 F.3d at 639, Courts have used

Page 13 of 30


must identil’y a right to be free from restraint thal imposes atypical and significant hardship in relation

lo the ordinary incidents of his confinement”).

In 2002, Judge Kocoras issued one of the first opinions, if not the first, from this Court

addressing what procedural due process rights existed for SVPA detainees. Lhrlich v. Manizke, 2002
WL 265177, *4 (N.D. Il]. Feb. 25, 2002). In Bhelich, Judge Kocoras noted that, with respect to a
disciptinary hearing against an SVP detainee resulting in punishment. certain procedural due process
rights applied: advance written notice of the charges at Icast 24 hours before the hearing; the opportunity
to call witnesses and present evidence; written findings by the factfinder, and a decision supported by
al least some evidence. Judge Kocoras found, however, that the restrictions imposed upon Ehrlich —
areduction of his status from “responsible” to “general,” greater confinement to his room, and earlier
lock-up times for five days: - were de minimus and did not invoke such procedural duc process concerns.
id. Judge Kocoras went on to find that, even if Ehrlich’s restrictions constituted punishment that
triggered a procedural due process right, qualified immunity applied since the right was not clearly
established, “While it was established that a pretrial detainee could not be punished without due
process of law, see, @.g., Rapier, supra, 172 F.3d at 1003-04; Zarnes v. Rhodes, 64 F.3d 285, 291-92
(7th Cir.1995), it was not clearly established {hat the same standards applied to a person in Ehrlich's
circumslances.” Ehrlich, 2002 WL 265177 at*4. Judge Kocoras noted that, “[a]lthough committed

mentally ill persons, like pretrial detainees, retain a substantive due process right to be free from

unnecessary physical restraint, the limitation on the state’s right to restrain them has been defined by
the bounds of acceptable professional judgment, rather than the procedural due process requirements
applicable to those confined for non-therapeutic purposes. See Youngberg, 457 U.S. at 321-22.”
Ehrlich, 2002 WI, 205177 at*4,

Like Ehrlich, plaintiff's restrictions were for the most part de minimus, With respect to any

restrictions that were not de minimus and required advance notice and the opportunity to call witnesses,

Page 16 of 30