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 -Appell ant , ) ) 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 ju dgment. 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 m ental 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.2022 IL App (2d) 220073-U

- 2 - ¶ 2 Plaintiff, David A. Bertha, appe als 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 dis tress

. That complaint named as defendants : (1) Kane County Sheriff’s Office , (2 ) Daily Herald Newspaper, (3) Harry Hitz e man, (4) Corey Hunger , (5) Patrick Gen gler, (6) Scott Flowers, (7) Thomas Zubik, (8) Mohammed Ali , (9) Muzhar Khan , and (10) Ghouse Mohi uddin. 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 , o n January 26, 2017 , plaintiff was found unfit to stand re trial for contempt of court

. In cou nt I, p laintiff alleged that defendants ( whom the third amended complaint implie d were on the staff of the Elgin Ment al 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 t o stand retrial for contempt causing him severe emotional distress .” ¶ 5 In c ount II, plaintiff alleged that defendants falsely impr isoned him. According to the complaint, defendants “violated the law when they involuntarily held [plai ntiff ] in custody from March 26, 2018, until May 5, 2018 , for mental health tre atment when the law required them to schedule a discharge hearing.”2022 IL App (2d) 220073-U

- 3 - ¶ 6 Finally, in c ount III, plaintiff alleged that defendants attempted to medicate plaintiff without a prescription, causing him se vere 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 (We st 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 est ablished 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, d efendant s claim that the plaintiff has not met the c riteria; thus, the court properly dismissed all three counts under section2022 IL App (2d) 220073-U

- 4 - 2-615. Defen dants 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 . H ence, 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 , t he statutes plaintiff relies on might give rise to implied private right s 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 appropriat e 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;2022 IL App (2d) 220073-U

- 5 - (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 i s 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

sever e emotional distress.” Thus, according to the co mplaint itself, the report’s substance, not the delay in filing it, caused plaintiff’s alleged injury. Again, h owever, 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 S ection 1 04- 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). I f 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).2022 IL App (2d) 220073-U

- 6 - 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 a ny 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 unfi tness, 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 t he 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, c ount II failed to state a cause of action , and the
court correct ly dismissed it

. ¶ 16 Finally , we consider whether the trial court properly dismiss ed count III. Count III alleged as follows:2022 IL App (2d) 220073-U

- 7 - “Dr. Mohiuddin and Zubi k 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. Mo hiuddin and Zubik attempted to administer medication to [plaintiff] without a prescription causing him sever e 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 autho rity 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 allege s that he was ordered to ta ke medication against his will

. Instead, p laintiff 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 20 18 ))

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

.