# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted October 23, 2018 *

Decided October 31, 2018

Before

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 17-3441

THOMAS POWERS, Plaintiff-Appellant

,

v

.

J ENNIFER BLOCK, et al.

, Defendants-Appellees

. Appeal from the United States District
Court for the Central District of Illinois.

No. 4:15-cv-04083

Harold A. Baker, J udge

.

O R D E R

Thomas Powers, a civil detainee at Rushv ille Treatment and Detention Facility, believes that he is not receiving proper “sex -offender-specific” treatment for his mental disorder. He contends that, in retaliation fo r filing grievances and lawsuits objecting to

* We have agreed to decide the case wi thout oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. Rule 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION
To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 17-3441 Page 2

his therapy, the defendants—various clinic ians who supply diagnostic and treatment services at the facility—collectively withheld appropriate treatment and placed him on suicide watch. The district court entered summary judgment against Powers, concluding that he had not created a genuine dispute about the adequacy of his treatment or provided sufficient eviden ce of retaliatory motive. We affirm.

At Rushville, trained professionals have offered Powers group therapy to treat his mental disorders. The treatment requires him to acknowledge his deviant behavior to the group and listen to feedback from other residents and his providers. Throughout his three years at Rushville preceding this lawsuit, however, Powers has disagreed with

feedback he has received and the assessme nts of his behavior and mental state.

Powers stresses that he just wants to complete Rushville’s treatment program and be “cured,” but the defendants simply will not let him. At the same time, Powers has pending a civil commitment hearing to de termine whether he is a “sexually violent person” as defined by Illinois’s Sexually Violent Persons Commitment Act, 725 ILCS 207/1–99. In an affidavit, he disputed his di agnosis as “not valid” and maintained he was “not a sexually violent person.” He admits, however, that he has been diagnosed with a “paraphilic disorder non-consent,” and he previously has been incarcerated for attempted aggravated criminal sexual assaul t and aggravated unlawful restraint. He believes that the defendants deny him a ppropriate treatment for his diagnosis.

Regarding his participation in Rushville’s program, his primary therapists and group facilitators have consistently noted that he tries to use group sessions as a forum for discussing legal issues and the validity of his diagnosis. In November 2014, Powers participated in an “entry to treatment evaluation” performed by defendant Jennifer Block, a licensed clinical psychologist with a Ph.D. in psychology. During the assessments, Powers denied committing his un derlying sex offense and tried to steer

the conversation toward whether he met th e diagnostic criteria for commitment.

Powers’s retaliation claim stems in part fr om an incident involving Dr. Block in

December 2014. Dr. Block recounts in an a ffidavit that during one group session,

Powers stated that she should “fear” him. Power s maintains that all he said was that he “only fears God.” Two days later Dr. Block wr ote an incident report stating that Powers threatened her. Although Powers believes that Dr. Block wrote the report in retaliationNo. 17-3441 Page 3

for disagreeing with her evaluation, Dr. Block sa ys that facility rules required her to file the report. On the day the re port was filed, security staff removed all Powers’s property from his room except his underwear and plac ed him on suicide watch. He ultimately received a warning for “insolence” and was re turned to his previous housing status. In affidavits, the defendants all deny they were involved in the decision to place him on

suicide watch.

Although Powers has been at Rushville for several years, his mental health providers have not advanced him to the ne xt stage of treatment, which presumably would draw him closer to qualifying for release. Paula Lodge—Powers’s treatment team leader, who holds licenses as a clinical psychologist, professional counselor, and a doctorate in clinical psychology—opined in an affidavit that Powers was not prepared to advance to the next phase of treatment because of his demonstrated behavior and resistance to accepting responsibility and fe edback. Lodge added that it would be futile to advance Powers to the next treatment gr oup before addressing the aforementioned

deficiencies.

Powers brought this suit under 42 U.S.C. § 1983, asserting th at the defendants violated his due process rights under th e Fourteenth Amendment by denying him adequate, individualized, sex-offender-specific treatment for his diagnosis and by not advancing him in treatment. He characteri zed his current treatment as a “sham” because it was “non-sex-offender-specific” an d contended that the sex-offender- specific therapy occurred only during the next phase of treatment. He also asserted that the defendants retaliated against him for filing gr ievances and lawsuits, in violation of his First Amendment rights, by withholding prop er treatment and placing him on suicide watch. Powers argued that certain defend ants—Lodge; his primary therapist Gerald Carreon; and Rushville’s clinical director Shan Jumper—retaliated against him by collectively deciding not to advance him. He contended that Dr. Block retaliated against him by filing the December incident report that led to his stint on suicide watch.

The district court entered summary judgme nt for the defendants. It found that his attacks on the defendants’ licensing creden tials failed to create a fact question about whether he was receiving adequate treatment decided by professionals. The court also

determined that Powers’s assertions that (1) he was receiving inadequate, “non-sexoffender-specific” treatment, and (2) that th e defendants already should have advancedNo. 17-3441 Page 4

him to the next phase of treatment, did not suffice to show that the defendants lacked the necessary professional judgment to provide his sex-offender treatment. As for Powers’s retaliation claims, the district cour t ruled that he failed to provide evidence establishing a connection between his grievances or lawsuits and the decision not to advance him. His contentions relating to Dr. Block’s incident report also failed because she had provided a sworn affidavit identifyin g a non-retaliatory reason for her actions, and Powers did not submit anything that would allow a rational jury to infer that her proffered reason was a lie.

On appeal Powers contends that the dist rict court failed to consider evidence about the defendant’s licensing credentials as well as documentary evidence about what constitutes proper sex offender treatment. Powers argues on the basis of admissions from Dr. Block, Carreon, and Jumper that these defendants were not licensed to treat him as required by the Illinois Sex Offend er Evaluation and Treatment Provider Act (SOETP), 225 ILCS 109/1–999, which took effect July 1, 2014. He reasons that treating

him while unlicensed itself demonstrates an unconstitutional lack of professional judgment.

As the district court found, the reco rd undermines any concern about the defendants’ qualifications. In the cont ext of treatment for civil detainees, a “professional” means a “a person competent, whether by education, training or experience, to make the particular decision at issue.” See Youngberg v. Romeo , 457 U.S. 307, 323 n.30 (1982). All of the defendants have advanced degrees in psychology or a closely related field and hold various licen ses to provide mental health treatment. Furthermore, Lodge received her license befo re the licensing requirements went into effect and supervised Carreon and Dr. Bloc k while they were unlicensed. Jumper, as the clinical director, did not directly treat Po wers but any question about his professional judgment is quelled by his nearly twenty ye ars of experience working in Illinois’s

treatment and detention facilities. Given the defendants’ relevant credentials and experience, a reasonable jury could not acce pt Powers’s contention that the defendants lacked professional judgment in providin g treatment for his paraphilic disorder.

Next, Powers argues that the district judg e overlooked his evidence about what constitutes proper sex-offender treatment. He explains that in Kansas v. Hendricks , 521 U.S. 346 (1997), Kansas gave its detainees 31 hours of treatment a week and, therefore,No. 17-3441 Page 5

anything less must be constitutionally inadequa te treatment. He also cites the reports of a psychiatrist and an institutional security consultant from another lawsuit in 2003 that criticized the program at Joliet Treatment and Detention Facility, which previously

housed Illinois’s detainees.

These contentions fail to establish a genuine dispute about the defendants’ treatment decisions or the adequacy of Power s’s care. Choices made by a professional about a civil detainee’s treatment, the Supreme Court has held, are “presumptively

valid.” See Youngberg , 457 U.S. at 323. Applying Youngberg in the context of civilly detained sex offenders, we have stated that the Constitution requires only that “(a) committed persons are entitled to some treatm ent, and (b) what that treatment entails must be decided by mental-health professionals.” See Allison v. Snyder

, 332 F.3d 1076, 1081 (7th Cir. 2003). That Kansas may provide 31 hours of treatment to sex offenders

does not raise an inference that Illinois’s tr eatment program is constitutionally deficient

because it does not show that his trea tment was decided by non-professionals. See id. As for the fifteen-year old expert reports, Po wers does not specify what opinions are contained in them nor does he otherwise explain their relevance.

Turning to the district court’s determ ination that he had not provided any

evidence to demonstrate that his treatm ent was inadequate, Powers argues that the judge should have credited his sworn stat ement that his “sex offender specific” treatment lasts only forty-five minutes ever y four to five weeks. Along these lines, he says the judge overlooked four affidavits fr om Rushville residents concurring that their treatment is “not adequate.”

But decisions made by competent treatm ent providers violate the Constitution only if they show “such a substantial dep arture from accepted professional judgment, practice, or standards as to demonstrate th at the person responsible actually did not base the decision on such a judgment.” Youngberg , 457 U.S. at 323. Powers fails to explain why his opinion or that of the other residents should override the judgment of Rushville’s professionals or how these statem ents otherwise reflect a departure from professional judgment, practice, or accepted standards. A reasonable jury could not find

for Powers based on mere dissatisf action with his treatment.No. 17-3441 Page 6

Powers next suggests that the district judge ignored evidence that shows a

connection between his lawsuits and the defend ants’ retaliatory motives. He points to a

series of emails between Rushville staff me mbers that includes a disparaging reference

to him and another resident in the facility’s law library.

This argument relies on too tenuous a connection between the defendants and his litigation activity. Apart from one Rushv ille staff member—not a defendant in this case—commenting about Powers’s right to a ccess legal materials, the emails are a benign description of facility policy that Jumper merely forwarded to a group including the other defendants. The derogatory remark came after Jumper’s initial action. Powers fails to show a link between the emails, his gr ievances or litigation, and the adequacy or progress of his treatment. Based on this degr ee of speculation, a reasonable jury could not conclude that the defendants posse ssed the requisite retaliatory motive. See Kidwell
v. Eisenhauer , 679 F.3d 957, 966 (7th Cir. 2012).

Powers contends that the district court could have drawn reasonable inferences

in his favor about Dr. Block’s motive to re taliate from letters he wrote to Dr. Block disputing her evaluation of him. He also submits that the two-day delay before Dr. Block filed the report that led to his plac ement on suicide watch was suspicious and inconsistent with her charge that he threatened her.

We agree with the district court that th is evidence failed to preclude summary judgment. Circumstantial evidence, such as suspicious timing or behavior, may signal retaliation, but the adverse action must “f ollow[] close on the heels of protected expression.” Kidwell , 679 F.3d at 966 (quoting Lalvani v. Cook Cty. , 269 F.3d 785, 790 (7th Cir. 2001). Powers did not send letters disputing Dr. Block’s findings until after he was placed on suicide watch, so he cannot show the requisite connection between his complaints and the disciplinary action. As for the two-day delay between the incident and Dr. Block’s report, “suspicious timing alon e rarely is sufficient to create a triable

issue.” See Andonissamy v. Hewlett-Packard Co. , 547 F.3d 841, 851 (7th Cir. 2008) (quoting Tomanovich v. City of Indianapolis , 457 F.3d 656, 662-63 (7th Cir. 2006)). Therefore, the fact that Dr. Block waited two days to file the in cident report, without more, does not suffice to create a genuine dispute about her motives.No. 17-3441 Page 7

Finally, we consider Powers’s two procedu ral challenges. Powers asserts, first, that the court erred by not appointing an expe rt to determine the efficacy of Rushville’s treatment program. Finding that an expe rt was unnecessary for Powers to show retaliation or the inadequacy of his treatmen t, the court denied his request on grounds that Powers in fact was asking for the co urt to determine his Fourteenth Amendment claim under the guise of a Daubert heari ng. Powers rehashes his argument that a hearing and experts are needed to assess his treatment and the defendants’ judgments. We agree that the district court was not required to recruit an expert to act as an

advocate on Powers’s behalf be cause, although a court may appoint an expert to help sort through conflicting evidence, matters su ch as retaliation or treatment conditions can be understood by a layperson without any need for an expert.

Powers’s second procedural challenge is not well developed. He asserts without

elaboration that the court should have re cruited counsel for him because he has a diagnosed mental disorder. He maintains that his mental disorder and inability to move forward in Rushville’s treatment program de monstrate that he is not competent to litigate this case without an attorney. But the district court reasonably denied his requests for counsel because he appeared capa ble of handling the litigation himself: his pleadings were cogent, he survived the district court’s initial screening evaluation of the written complaint, see 28 U.S.C. § 1915(e)(2), and he was ab le to engage in the discovery

process. See Pruitt v. Mote , 503 F.3d 647, 658 (7th Cir. 2007).

AFFIRMED