2022 IL App (2d) 220073-U 

No. 2-22-0073 

Order filed December 13, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

DAVID A. BERTHA, ) Appeal from the Circuit Court

) of Kane County. 

) 

Plaintiff-Appellant, ) 

) 

v. ) No. 19-L-84 

) 

THOMAS ZUBIK, GHOUSE MOHIUDDIN, ) 

JOANNE LANGLEY, and NAINA DESAI, ) 

) 

Defendants ) 

) 

(Thomas Zubik, Ghouse Mohiuddin, Joanne ) Honorable 

Langley, and Naina Desai, Defendants- ) Thomas A. Meyer, 

Appellees). ) Judge, Presiding.

______________________________________________________________________________ 

PRESIDING JUSTICE McLAREN delivered the judgment of the court.

Justices Schostok and Birkett concurred in the judgment. 

ORDER

¶ 1 Held: The trial court properly dismissed plaintiff’s third amended complaint alleging that 

defendants, staff members of the Elgin Mental Health Center, intentionally caused 

plaintiff emotional distress by violating various statutes governing his commitment 

for mental health treatment following a finding of unfitness. Assuming arguendo

that these statutes implied a private right of action, plaintiff failed to allege that 

defendants violated the statutes. We affirm the judgment. 
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¶ 2 Plaintiff, David A. Bertha, appeals from the dismissal, with prejudice, of his third amended 

complaint. The complaint ostensibly sought recovery for emotional distress caused by violations

of various statutes governing the commitment of a criminal defendant whom a court has found 

unfit to stand trial and ordered to undergo treatment. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff’s initial complaint alleged conspiracy to intentionally inflict emotional distress. 

That complaint named as defendants: (1) Kane County Sheriff’s Office, (2) Daily Herald 

Newspaper, (3) Harry Hitzeman, (4) Corey Hunger, (5)Patrick Gengler, (6) Scott Flowers, 

(7) Thomas Zubik, (8) Mohammed Ali, (9) Muzhar Khan, and (10) Ghouse Mohiuddin. Plaintiff

subsequently filed several amended complaints. The third amended complaint filed November 30, 

2021, named as defendants only (1) Zubik, (2) Mohiuddin, (3) Joanne Langley, and (4) Naina 

Desai. According to the complaint, on January 26, 2017, plaintiff was found unfit to stand retrial 

for contempt of court. In count I, plaintiff alleged that defendants (whom the third amended 

complaint implied were on the staff of the Elgin Mental Health Center) failed to timely file a 

written report pursuant to section 104-17(e) of the Code of Criminal Procedure of 1963 (Code of 

Criminal Procedure) (725 ILCS 5/104-17(e) (West 2016)). According to the complaint, the report 

was due on February 25, 2017, but was not filed until April 11, 2018. Plaintiff alleged that “[t]he 

report found [plaintiff] unfit to stand retrial for contempt causing him severe emotional distress.” 

¶ 5 In count II, plaintiff alleged that defendants falsely imprisoned him. According to the 

complaint, defendants “violated the law when they involuntarily held [plaintiff] in custody from 

March 26, 2018, until May 5, 2018, for mental health treatment when the law required them to 

schedule a discharge hearing.” 
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¶ 6 Finally, in count III, plaintiff alleged that defendants attempted to medicate plaintiff

without a prescription, causing him severe emotional distress.

¶ 7 Defendants filed a motion under section 2-619.1 of the Code of Civil Procedure (Code) 

(735 ILCS 5/2-619.1 (West 2020)) to dismiss the third amended complaint. The trial court granted 

the motion, and this appeal followed.

¶ 8 II. ANALYSIS

¶ 9 Section 2-619.1 of the Code permits a party to file a combined motion seeking dismissal 

under sections 2-615 and 2-619 of the Code. Id. §§ 2-615, 2-619, 2-619.1 “A section 2-615 motion 

attacks the legal sufficiency of the plaintiff’s claims, while a section 2-619 motion admits the legal 

sufficiency of the claims but raises defects, defenses, or other affirmative matter, appearing on the 

face of the complaint or established by external submissions, that defeats the action.” Aurelius v. 

State Farm Fire & Casualty Co., 384 Ill. App. 3d 969, 972-73 (2008). “A dismissal under either 

section 2-615 or section 2-619 is reviewed de novo.” Zahl v. Krupa, 365 Ill. App. 3d 653, 658 

(2006). 

¶ 10 All three counts of plaintiff’s third amended complaint seek recovery for alleged statutory 

violations. We initially note that a statute will give rise to an implied private right of action when:

“(1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the 

plaintiff’s injury is one the statute was designed to prevent; (3) a private right of action is 

consistent with the underlying purpose of the statute; and (4) implying a private right of 

action is necessary to provide an adequate remedy for violations of the statute.” Fisher v. 

Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999).

¶ 11 Plaintiff claims that he met these criteria. On the other hand, defendants claim that the 

plaintiff has not met the criteria; thus, the court properly dismissed all three counts under section 
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2-615. Defendants alternatively argue that, even if the statutes in question imply private rights of 

action, plaintiff has failed to plead facts establishing a right to recovery. Hence, the third amended 

complaint was still subject to dismissal under section 2-615. As explained below, we agree with 

defendants’ alternative argument, so we need not consider whether, under other circumstances, the 

statutes plaintiff relies on might give rise to implied private rights of action. 

¶ 12 We first consider count I. Plaintiff argues that he has an implied right of action for 

defendants’ failure to adhere to section 104-17(e) of the Code of Criminal Procedure, which 

provides: 

“Within 30 days of entry of an order to undergo treatment, the person supervising the 

defendant’s treatment shall file with the court, the State, and the defense a report assessing 

the facility’s or program’s capacity to provide appropriate treatment for the defendant and 

indicating his opinion as to the probability of the defendant’s attaining fitness within a 

period of time from the date of the finding of unfitness. For a defendant charged with a 

felony, the period of time shall be one year. For a defendant charged with a misdemeanor, 

the period of time shall be no longer than the sentence if convicted of the most serious 

offense. If the report indicates that there is a substantial probability that the defendant will 

attain fitness within the time period, the treatment supervisor shall also file a treatment plan 

which shall include:

(1) A diagnosis of the defendant’s disability;

(2) A description of treatment goals with respect to rendering the defendant 

fit, a specification of the proposed treatment modalities, and an estimated timetable 

for attainment of the goals;
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(3) An identification of the person in charge of supervising the defendant's 

treatment.” 725 ILCS 5/104-17(e) (West 2020).

¶ 13 Even assuming, for the sake of argument, that there is an implied private right of action for 

a violation of section 104-17(e), plaintiff’s third amended complaint fails to state a cause of action 

for a violation of that provision. The alleged violation of the statute was the failure to timely file 

the required report. However, plaintiff did not allege that he suffered any injury from the delay. 

Rather, he alleged that “[t]he report found [plaintiff] unfit to stand retrial for contempt causing him 

severe emotional distress.” Thus, according to the complaint itself, the report’s substance, not the 

delay in filing it, caused plaintiff’s alleged injury. Again, however, plaintiff alleged no facts 

indicating that the report’s substance violated the statute.

¶ 14 We next consider whether the trial court properly dismissed count II, which alleged that 

defendants falsely imprisoned plaintiff by failing to hold a discharge hearing.

1

 Section 104-23 of 

the Code of Criminal Procedure (id. § 104-23(a), (b)(1), (b)(2)) provides: 

“Cases involving an unfit defendant who demands a discharge hearing or a defendant who 

cannot become fit to stand trial and for whom no special provisions or assistance can 

compensate for his disability and render him fit shall proceed in the following manner:

(a) Upon a determination that there is not a substantial probability that the defendant 

will attain fitness within the time period set in subsection (e) of Section 104-17 of this Code 

1

At a discharge hearing “[t]he State and the defendant may introduce evidence relevant to 

the question of defendant’s guilt of the crime charged.” Id. § 104-25(a). If the evidence does not 

prove the defendant’s guilt beyond a reasonable doubt, the trial court enters a judgment of 

acquittal. Id. § 104-25(b).
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from the original finding of unfitness, a defendant or the attorney for the defendant may 

move for a discharge hearing pursuant to the provisions of Section 104-25. The discharge 

hearing shall be held within 120 days of the filing of a motion for a discharge hearing, 

unless the delay is occasioned by the defendant.

(b) If at any time the court determines that there is not a substantial probability that 

the defendant will become fit to stand trial or to plead within the time period set in 

subsection (e) of Section 104-17 of this Code from the date of the original finding of 

unfitness, or if at the end of the time period set in subsection (e) of Section 104-17 of this 

Code from that date the court finds the defendant still unfit and for whom no special 

provisions or assistance can compensate for his disabilities and render him fit, the State 

shall request the court:

(1) To set the matter for hearing pursuant to Section 104-25 unless a hearing 

has already been held pursuant to paragraph (a) of this Section; or

(2) To release the defendant from custody and to dismiss with prejudice the 

charges against him[.]”

¶ 15 Pursuant to this provision, a discharge hearing must be held, under certain circumstances, 

at the request of the defendant, the defendant’s attorney, or the State. There is no statutory 

requirement that the staff of the facility where an unfit defendant has been committed for treatment 

must schedule a discharge hearing. Accordingly, count II failed to state a cause of action, and the 

court correctly dismissed it. 

¶ 16 Finally, we consider whether the trial court properly dismissed count III. Count III alleged 

as follows:
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“Dr. Mohiuddin and Zubik are liable for repeatedly attempting to administer 

medication to [plaintiff] without a prescription. If mental health services include the 

administration of psychotropic medication, the physician or the physician’s designee shall 

advise the recipient, in writing, of the side effects, risks, and benefits of the treatment, as 

well as alternatives to the proposed treatment. 405 ILCS 5/2-102(a-5) (West 2018). In 

2015 Dr. Mohiuddin and Zubik attempted to administer medication to [plaintiff] without a 

prescription causing him severe emotional distress.”

¶ 17 In his argument on appeal, plaintiff argues that defendants “violated the law when they 

failed to provide the plaintiff with a written prescription for medication that they ordered him to 

take against his will.” (Emphases added.) Plaintiff cites no authority that defendants were required 

to provide him with a written prescription. Arguments without citation to authority are forfeited. 

Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Moreover, plaintiff’s complaint nowhere alleges that he 

was ordered to take medication against his will. Instead, plaintiff focuses on the statutory 

requirement that he be advised in writing of “the side effects, risks, and benefits of the treatment, 

as well as alternatives to the proposed treatment” (405 ILCS 5/2-102(a-5) (West 2018)). However,

his complaint never alleges that he was not given that information. Accordingly, the court properly 

dismissed count III for failure to state a cause of action.

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, we affirm the judgment of the circuit court of Kane County. 

¶ 20 Affirmed.