# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted May 12, 2017 *

Decided May 26, 2017

Before

No. 16-1708

J EREMY SCHLOSS, Plaintiff-Appellant

,

v

.

AIMEE WILCZYNSKI, et al., Defendants-Appellees

. Appeal from the United States District Court

for the Central District of Illinois.

No. 13-3029

Colin S. Bruce,
J udge

.

O R D E R

Jeremy Schloss, a civil detainee at the Treatment and Detention Facility in
Rushville, Illinois, raises two claims in this civ il-rights action. First he contends that his mental-health therapy is unconstitutionally deficient. Second he argues that his custodians assigned him a new roommate in re taliation for his objections to his therapy.

The district court ruled that the first claim is barred by Heck v. Humphrey , 512 U.S. 477

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts an d legal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). DIANE P. WOOD, Chief Judge

JOEL M. FLAUM, Circuit Judge

DANIEL A. MANION, Circuit Judge NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 16-1708 Page 2

(1994), and that a reasonable jury could not fi nd for Schloss on his retaliation claim. We agree with the district court th at Schloss cannot proceed on either claim and thus affirm.

We recount the facts in the light most fa vorable to Schloss, the nonmoving party.

See Chaib v. GEO Grp., Inc ., 819 F.3d 337, 340 (7th Cir. 2016). Schloss has been adjudicated a “sexually violent person.” He pleaded guilty to aggravated sexual abuse
of his now ex-wife in 2005, and he has been in some form of state custody ever since. He initially was sentenced to six months in jail and three years’ probation, but he was resentenced to an additional seven years’ im prisonment after he violated probation by calling his ex-wife from jail. In July 2008, the day before he was set to be released early from prison for good behavior, the state pe titioned for Schloss to be adjudicated a sexually violent person under the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1–99. The Act authorizes the civil commitment of a person convicted of a sexually violent offense if a jury finds that the person has a mental disorder making it “substantially probable” that he will engage in future acts of sexual violence. See 725 ILCS 207/5(f), 207/40. In its petition the stat e said that Schloss recently had been diagnosed with paraphilia (abnormal sexual de sires) involving sexual attraction to nonconsenting females, alcohol abuse, and anti -social personality disorder. A state court determined in August 2008 that there was prob able cause to detain Schloss through his commitment proceedings. For reasons that are unexplained in the record, those proceedings did not occur until March 2013, nearly five years later.

During his time at Rushville, professional s have offered Schloss group therapy to

treat his mental disorders. In November 200 8 he consented to participate in Rushville’s “core sex offender treatment,” which involved acknowledging his deviant behavior to a group. But after a year and a half of treatm ent, he withdrew his consent because, he says, he felt discomfort when his fellow grou p members and clinical staff pressured him

to disclose that he committed and fantasized about acts of sexual violence. Schloss agreed to return to therapy around January 2012, but he was told that he would need to wait for a spot in a group to open up. (H e declined a chance to participate in a mindfulness group while he waited.) Eight months later Schloss again withdrew his consent to treatment after his primary therapis t presented him with a plan that outlined goals for Schloss to achieve in the next year. Schloss refused to sign the document because he thought that the plan did not re flect his current mental state and that the proposed treatment had nothing to do with the mental disorders from which the state

said that he suffered.No. 16-1708 Page 3

About a week after Schloss objected to th e treatment plan, he was assigned a new roommate—his seventh in four years. Schl oss says that the new roommate was a “sexual deviant” with poor hygiene and “no communication skills.” Schloss believes that his therapists orchestrated this unfavo rable change to punish him for objecting to the treatment plan. He lived with this roommate for about 15 months.

This lawsuit followed a few months after the roommate assignment. The district court construed it as stating two principa l claims: (1) a deliberate-indifference claimagainst therapists and Rushville-associated administrators for offering Schloss sexoffender treatment, and (2) a First Amendment claim against two therapists for retaliating against him with an unfavorable roommate because of his complaints about the treatment plan. Schloss sought damages an d an order enjoining the defendants from offering their treatment plan. A month af ter Schloss filed his suit, a state jury determined that he is sexually violent an d ordered him committed “until such time as [he] is no longer a sexually violent pe rson.” Schloss appealed that decision unsuccessfully in state court. See In re Commitment of Schloss , No. 2-13-0658, 2014 WL 5822912 (Ill. App. Ct. Nov. 10, 2014), appeal denied 32 N.E.3d 673 (Ill. 2015). He currently is challenging the validity of his commitm ent in federal habeas-corpus proceedings.

See Schloss v. Scott , No. 1:16-cv-03164 (N.D. Ill. filed Mar. 11, 2016).

The defendants moved for summary judgme nt, which the district court granted. The court reasoned that Schloss’s objection to the treatment that the defendants have

offered him conflicts with the state-court’s ru ling that he is sexually violent, and thus

that Heck v. Humphrey , 512 U.S. 477 (1994), bars his deliberate-indifference claim. As for the retaliation claim, the court explained th at a reasonable jury could not find in
Schloss’s favor for two reasons. First, Schlo ss conceded that the two therapists were not members of the committee responsible for roommate assignments. Second, Schloss presented insufficient evidence from which a jury could conclude that the assignment caused him a serious enough deprivatio n to deter First Amendment activity.

In this court, Schloss first challenges th e grant of summary ju dgment on his claim

of deliberate indifference. Because Schloss is a civil detainee, this claim is derived from the Fourteenth Amendment’s due process clause, but the protection afforded him is “functionally indistinguishable” from that guaranteed to prisoners under the Eighth Amendment’s ban on cruel and unusual punishment. Smego v. Mitchell , 723 F.3d 752, 756 (7th Cir. 2013). In order to prevail, the plaintiff must show that the defendantsNo. 16-1708 Page 4

deliberately ignored the plaintiff’s serious medical needs. See Petties v. Carter , 836 F.3d 722, 727–28 (7th Cir. 2016) (en banc).

Although we agree with the grant of summary judgment on this claim of deliberate indifference, we do not ag ree with the district court that Heck bars it. In Heck the Supreme Court held that if an award of damages to a state prisoner under 42 U.S.C. § 1983 “would necessarily imply the invalidity of his conviction or sentence,” he may not pursue such a claim “unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the g rant of a writ of habeas corpus.” 512 U.S.
at 487, 489; see Haywood v. Hathaway , 842 F.3d 1026, 1029 (7th Cir. 2016). Schloss argues
that if, as a state court has decided, he is a sexually violent person deserving mentalhealth treatment, the defendants are not pr oviding him with constitutionally proper

care. Heck does not bar such a claim. See Hughes v. Dimas , 837 F.3d 807, 808 (7th Cir. 2016) (recognizing that detainee at Rushville could challenge adequacy of his treatment). The problem for Schloss is that he presented no evidence to support that claim. To the contrary, he conceded in hi s summary-judgment response that “the sexoffender specific mental health treatment offered at Rushville TDF is a scientifically recognized and widely accepted and used me thod for providing health treatment to sex

offenders in the United States.”

We also agree with the grant of summary judgment on Schloss’s claim that two therapists violated the First Amendment by assigning him a new roommate. First, Schloss did not present evidence that the two therapists he blames for assigning him the new roommate were responsible for doing so. Neither therapist served on the relevant
committee at Rushville, and Schloss never e xplained how he could “know for a fact” that they had a “very deep hand in assign ing people roommates.” His claim also fails because Schloss presented no evidence other th an the timing of the decision from which a reasonable jury could conclude the assignment was aimed to punish him for complaining about treatment. See Perez v. Fenoglio , 792 F.3d 768, 783 (7th Cir. 2015). Timing alone almost never suffices to crea te a triable claim of unlawful retaliation.

See Andonissamy v. Hewlett-Packard Co ., 547 F.3d 841, 851 (7th Cir. 2008). Schloss appears to dislike rooming with a sex offender, but all of the detainees at Rushville are sex
offenders, Schloss included.

We have considered Schloss’s remaining arguments, and none merits discussion.

AFFIRMED.