Schloss v. Jumper

• Decision Date: 05 June 2014
• Docket Number: No. 4–12–1086.,4–12–1086.
• Citation: 2014 IL App (4th) 121086,381 Ill.Dec. 694,11 N.E.3d 57
• Parties: Jeremy L. SCHLOSS, Plaintiff–Appellant, and Walter Pegues, Plaintiff, v. Shan JUMPER, Forrest Ashby, and The Department of Human Services, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2014 IL App (4th) 121086

11 N.E.3d 57

381 Ill.Dec. 694

Jeremy L. SCHLOSS, Plaintiff–Appellant,andWalter Pegues, Plaintiff,

v.Shan JUMPER, Forrest Ashby, and The Department of Human Services, Defendants–Appellees.

No. 4–12–1086.

Appellate Court of Illinois, Fourth District.

June 5, 2014.

Jeremy L. Schloss, Rushville, appellant pro se.

Craig L. Unrath, Heyl, Royster, Voelker & Allen, Peoria, and Shay H. Matthews, Heyl, Royster, Voelker & Allen, Edwardsville, for appellee Shan Jumper.

Lisa Madigan, Attorney General, Chicago (Michael A. Scodro, Solicitor General, and Christopher M.R. Turner, Assistant Attorney General, of counsel), for other appellees.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

¶ 1 In September 2012, plaintiff, Jeremy L. Schloss, a detainee in the Rushville Treatment and Detention Center, filed a pro se amended complaint against defendants, Shan Jumper and Forrest Ashby, alleging defendants imposed unreasonable restrictions on free speech by restricting plaintiff's access to various forms of media based on security or therapy concerns. In November 2012, defendants filed separate motions to dismiss, which the trial court granted.

¶ 2 On appeal, plaintiff argues the trial court erred in granting defendants' motions to dismiss. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff has been civilly committed pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2010)). Plaintiff has finished serving his criminal sentence but has been detained indefinitely in a secure Department of Human Services (DHS) facility for treatment because he has been found beyond a reasonable doubt to suffer from a “mental disorder that makes it substantially probable that [he] will engage in acts of sexual violence.” 725 ILCS 207/5(f) (West 2010). A detainee under this Act may petition for conditional release annually, but conditional release is granted only if enough progress in treatment has been made that the detainee is no longer substantially probable to engage in acts of sexual violence if on conditional release. 725 ILCS 207/60 (West 2010).

¶ 5 Plaintiff has been civilly committed to DHS custody since July 2008. Plaintiff resides in the Rushville Treatment and Detention Center in Rushville, Illinois, a facility operated by DHS. Defendant Shan Jumper is the clinical director of the facility and defendant Forrest Ashby is the facility's director.

¶ 6 On February 29, 2012, plaintiff and Walter Pegues filed a pro se civil rights complaint against Jumper, Ashby, and DHS alleging violations of the United States Constitution and the Illinois Constitution. Defendants filed separate motions to dismiss, arguing plaintiffs failed to comply with Illinois pleading requirements and failed to state claims upon which relief could be granted. Following a hearing on July 26, 2012, the trial court dismissed plaintiffs' complaint with leave to amend.

¶ 7 On September 27, 2012, plaintiffs filed a five-count amended complaint, naming only Jumper and Ashby as defendants. Plaintiffs alleged in count I defendants failed to provide treatment that offered a realistic opportunity to meet the statutory requirements for release from confinement, in violation of the fourteenth amendment. In count II, plaintiffs alleged a violation of substantive due process, claiming defendants failed to clearly define rules of conduct, failed to provide a grievance procedure, and enacted policies based on security issues that do not exist, and additional allegations involving the inadequacies of the treatment program, such as a lack of sufficiently trained staff.

¶ 8 Plaintiffs alleged in count III a violation of their right to free speech by defendants restricting plaintiffs' access to various forms of media based on security or therapy concerns. Specifically, plaintiffs alleged defendants published and distributed a list “of movies and video games that are restricted, and/or prohibited based upon their [Motion Picture Association of America (MPAA) ] or [Entertainment Software Rating Board (ESRB) ] rating, and ‘Unrated’ media is deemed contraband and prohibited.” Plaintiffs asserted these guidelines effectively ban unrated media. Plaintiffs alleged the rating systems are not a proper basis for determining which media may be purchased or possessed by residents of a detention and treatment facility. Plaintiffs admitted a resident handbook provides unrated media may be submitted to a treatment team for approval for resident-viewing purposes. Plaintiffs asserted, however, “[i]t would be a futile effort to * * * seek approval because * * * defendants have already declared * * * the media * * * prohibited.”

¶ 9 Plaintiffs alleged further, in count IV of the amended complaint, a claim for violation of due-process rights under the fourteenth amendment where defendants' actions resulted in overly restrictive and punitive conditions. In count V, plaintiffs alleged defendants unlawfully confined them without legal authority and treated them in a manner inconsistent with other mental-health facilities. Plaintiffs sought declaratory relief that their constitutional rights had been violated, compensatory and punitive damages, and injunctive relief.

¶ 10 On November 1, 2012, defendant Jumper filed a motion to dismiss pursuant to section 2–619.1 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2–619.1 (West 2010)). Jumper argued counts I, II, and IV of plaintiffs' amended complaint were barred by res judicata. The case on which defendant Jumper based his res judicata defense was Schloss v. Ashby, No. 11–CV–3337, 2011 WL 4804868 (C.D.Ill.) (hereinafter, Schloss), filed by plaintiffs against defendants on August 26, 2011, in the United States District Court for the Central District of Illinois, Springfield. In Schloss, sexually violent detainees at Rushville (including plaintiffs) sued the facility to contest, in part, the constitutionality of a gaming-console ban. The district court dismissed plaintiffs' initial complaint for failure to state a claim, concluding the plaintiffs did not state a claim under the first amendment that the ban on gaming consoles was not rationally related to a legitimate institutional goal. The district court granted plaintiffs leave to file an amended complaint, directing plaintiffs to detail only a due-process claim based on an alleged lack of rehabilitative treatment. Plaintiffs filed an amended complaint on November 14, 2011, which the district court dismissed on August 10, 2012, for failure to state a federal claim. Plaintiffs appealed and the Seventh Circuit Court of Appeals dismissed the appeal for failure to pay the required docketing fee.

¶ 11 In his motion to dismiss, defendant Jumper also argued plaintiffs' amended complaint should be dismissed because plaintiffs failed to state claims upon which relief could be granted. On November 9, 2012, defendant Ashby filed a motion to dismiss plaintiffs' amended complaint incorporating defendant Jumper's arguments.

¶ 12 Also on November 9, 2012, plaintiffs sought an extension of time to respond to defendants' motions to dismiss, from a previously agreed-to date of November 15, 2012, to December 30, 2012. Plaintiff Schloss asserted he was preparing to represent himself at trial in another matter and had limited access to legal research.

¶ 13 Without ruling on plaintiffs' motion for an extension of time, the trial court granted defendants' motions to dismiss with prejudice in an order dated November 20, 2012. Specifically, the court found plaintiffs failed to state a claim upon which relief could be granted and some of plaintiffs' claims were barred by res judicata. On November 29, 2012, plaintiff Schloss filed a notice of appeal. Plaintiff Pegues is not a party to this appeal.

¶ 14 II. ANALYSIS

¶ 15 In the case sub judice, the trial court granted defendants' motions to dismiss under section 2–619.1. A motion under section 2–619.1 allows a party to “combine a section 2–615 motion to dismiss based upon a plaintiff's substantially insufficient pleadings with a section 2–619 motion to dismiss based upon certain defects or defenses.” Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill.App.3d 156, 164, 273 Ill.Dec. 149, 788 N.E.2d 740, 747 (2003). On appeal, the trial court's dismissal of a complaint under section 2–619.1 is reviewed de novo. Morris v. Harvey Cycle & Camper, Inc., 392 Ill.App.3d 399, 402, 331 Ill.Dec. 819, 911 N.E.2d 1049, 1052 (2009).

¶ 16 We first address the trial court's dismissal of plaintiff Schloss's amended complaint pursuant to section 2–619, finding “some of Plaintiffs' claims are barred by res judicata.” In their motions to dismiss, defendants argued counts I, II, and IV of plaintiffs' amended complaint were barred by res judicata. On appeal, defendants argue the amended complaint, in its entirety, is barred under the doctrine of res judicata.

¶ 17 In his reply brief, plaintiff admits counts I, II, IV, and V of his amended complaint are barred by the doctrine of res judicata,

stating he does not wish to “re-litigate a previously decided case or claims.” Defendant states he is pursuing “Count III only as it pertains to the unreasonable restrictions of Free Speech.”

¶ 18 This court accepts plaintiff's concession that counts I, II, IV, and V of his amended complaint are barred by the doctrine of res judicata. As to count III of plaintiff's amended complaint, defendants did not argue in their motions to dismiss that count III was barred by res judicata. Res judicata is an affirmative defense, which a defendant forfeits if not raised. Village of Maywood Board of Fire & Police Commissioners v. Department of Human Rights, 296 Ill.App.3d 570, 578, 231 Ill.Dec. 100, 695 N.E.2d 873, 879 (1998). Defendants are barred from raising this defense for the first time on appeal.

¶ 19 We next address the trial court's dismissal of plaintiff's amended complaint pursuant to section 2–615, finding plaintiff's...