Hughes v. Dimas, No. 16-1818 (7th Cir. 2016)

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Hughes was found to be a sexually violent person who suffers from a mental disorder that creates a substantial risk that, unless confined, he is apt to commit further sexual violence; he was civilly committed, at Rushville, under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1–99, “for control, care and treatment” until he “is no longer a sexually violent person.” In a suit under 42 U.S.C. 1983, Hughes claimed that Illinois has improperly curtailed his liberty, by employing detention staff who are unable to provide him with the care and treatment without which he will never be eligible for release. Illinois allows only persons licensed under the Act to treat Rushville’s civil detainees and determine whether they can be released without danger to the public. The Seventh Circuit reversed dismissal of Hughes’ complaint. The Supreme Court understands the Fourteenth Amendment to require that civil detainees receive treatment for the disorders that led to their confinement and be released when they are no longer dangerous. It is not clear whether Rushville is providing the plaintiff (and others) with treatment by licensed professionals who have authority to determine the detainees’ right to be released. Liberty Healthcare, which furnishes the Rushville personnel, does not require that all of them be licensed.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1818 MICHAEL HUGHES, Plaintiff Appellant, v. JAMES DIMAS, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 4:15 cv 04163 JES — James E. Shadid, Chief Judge. ____________________ SUBMITTED JUNE 24, 2016 — DECIDED SEPTEMBER 19, 2016 ____________________ Before WOOD, Chief Judge, and POSNER and ROVNER, Cir cuit Judges. POSNER, Circuit Judge. An Illinois state court ruled that Michael Hughes was a sexually violent person who suffers from a mental disorder that creates a substantial risk that un less confined he is apt to commit further sexual violence. And so the court ordered him to be civilly committed, pur suant to the state’s Sexually Violent Persons Commitment Act, 725 ILCS 207/1–99, in the Rushville Treatment and De 2 No. 16 1818 tention Facility, a state facility where he is to remain “for control, care and treatment” until he “is no longer a sexually violent person.” See id. 207/40. In this suit under 42 U.S.C. § 1983, Hughes claims that the state has improperly curtailed his liberty, in violation of the Fourteenth Amendment, by employing staff at Rushville who are unable to provide him with the care and treatment without which he’ll never be el igible for release. Because the Department of Human Ser vices, which operates Rushville, has contracted with Liberty Healthcare Corporation to provide sex offender treatment to detainees there, Hughes names as defendants Liberty Healthcare along with eleven persons, including James Di mas, the Secretary of the Department of Human Services, Rushville’s clinical director, and five therapists employed by the facility. The Supreme Court has suggested that a civilly commit ted sex offender is constitutionally entitled to “immediate release upon a showing that [he] is no longer dangerous or mentally impaired.” Kansas v. Hendricks, 521 U.S. 346, 368–69 (1997); see also Allen v. Illinois, 478 U.S. 364, 369–74 (1986). But who is to make that showing? Illinois allows only per sons licensed under the Sex Offender Evaluation and Treat ment Provider Act to treat Rushville’s civil detainees and de termine whether and when they’ve improved to the point where they can be released without danger to the public. 225 ILCS 109/40; 725 ILCS 207/55(a)–(b). The Act imposes civil and criminal penalties on unlicensed persons who at tempt to provide sex offender treatment. 225 ILCS 109/90, 160. The district judge dismissed Hughes’ complaint primari ly on the grounds that the Constitution doesn’t require No. 16 1818 3 Rushville to comply with state statutes and that anyway a state statute is not enforceable in federal court. But this rea soning misconceives the basis of the suit. As indicated in the cases cited earlier, the Supreme Court understands the Four teenth Amendment to require that civil detainees receive treatment for the disorders that led to their confinement and be released when they’ve improved enough no longer to be dangerous. Illinois has decided to permit only persons li censed under the state’s Sex Offender Evaluation and Treatment Provider Act to make that evaluation. 225 ILCS 109/40; 725 ILCS 207/55(a)–(b). That decision can be under stood as a response to doubts increasingly raised about the constitutional adequacy of the treatment provided to civilly detained sex offenders. See Lucy Massopust & Raina Borrel li, “‘A Perfect Storm’: Minnesota’s Sex Offender Program— More Than Twenty Years Without Successful Reintegra tion,” 41 William Mitchell Law Review 706 (2015); Douglas G. Smith, “The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment,” 49 Boston College Law Review 1383 (2008); Karsjens v. Jesson, 109 F. Supp. 3d 1139, 1172 (D. Minn. 2015). But the bare record of the district court proceeding leaves unresolved whether Rushville is provid ing the plaintiff (and other persons detained at the facility) with treatment by licensed professionals who alone have the authority to determine the detainees’ right to be released. We note for example that Liberty Healthcare Corporation, which furnishes the clinical treatment personnel at Rush ville, does not require that all of them be licensed. See Liber ty Healthcare Corporation, “Counselor—sex offender treat ment program,” www.glassdoor.com/job listing/counselor sex offender treatment program liberty healthcare JV_IC11 28554_KO0,40_KE41,59.htm?jl=1942076790 (visited Sept. 16, 4 No. 16 1818 2016). The suit having been dismissed prematurely, the judgment of the district court is REVERSED AND REMANDED.

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