Thielman v. Leean

• Decision Date: 09 April 2001
• Docket Number: No. 99-C-580-C.,99-C-580-C.
• Citation: 140 F.Supp.2d 982
• Parties: Richard D. THIELMAN, Plaintiff, v. Joseph LEEAN, Secretary of the Department of Health and Family Services; Laura Flood, Deputy Administrator and Interim Director of the Division of Care and Treatment Facilities of the Department of Health and Family Services; Jerry Bednarowski, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Diane Fergot, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Margaret Alexander, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Anna Salter, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Byran Bartow, Director of the Wisconsin Resource Center; Jon Litscher, Secretary of the Department of Corrections; James Doyle, Wisconsin Attorney General, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

Page 982

140 F.Supp.2d 982

Richard D. THIELMAN, Plaintiff, v. Joseph LEEAN, Secretary of the Department of Health and Family Services; Laura Flood, Deputy Administrator and Interim Director of the Division of Care and Treatment Facilities of the Department of Health and Family Services; Jerry Bednarowski, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Diane Fergot, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Margaret Alexander, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Anna Salter, Interim Clinical Director SVP Treatment Program, Department of Health and Family Services; Byran Bartow, Director of the Wisconsin Resource Center; Jon Litscher, Secretary of the Department of Corrections; James Doyle, Wisconsin Attorney General, Defendants.

No. 99-C-580-C.

United States District Court, W.D. Wisconsin.

April 9, 2001.

COPYRIGHT MATERIAL OMITTED

Mary E. Kennelly, Fox & Fox, S.C., Madison, WI, for plaintiff.

Joely Urdan, Assist. Atty. Gen., Madison, WI, for defendants.

OPINION AND ORDER

CRABB, District Judge.

Plaintiff Richard Thielman, a person committed involuntarily as a sexually violent person under Chapter 980 of the Wisconsin Statutes, brings this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against various employees of the Wisconsin Resource Center and the Department of Health and Family Services in their official capacities. Plaintiff contends that defendants are 1) denying his rights to due process and equal protection under the Fourteenth Amendment by placing him in full restraints each time he is transported to and from the facility, requiring him to wear state-issued clothing when he leaves his assigned living unit, searching his room on a random basis and requiring him to have contact with prisoners in residential units and in the patient dining area; 2) depriving him of his right to adequate mental health treatment as guaranteed to him by the due process clause of the Fourteenth Amendment; and 3) violating his Fifth Amendment privilege against self-incrimination by requiring him to provide a full disclosure of his sexual offenses as a condition of his treatment.

Before the court are the parties' cross motions for summary judgment. Plaintiff has moved for summary judgment on his second and third claims and on his claim that the Wisconsin Resource Center's policy of transporting all Chapter 980 patients in full restraints violates his rights to due process and equal protection. Defendants have moved for summary judgment on the merits of all of plaintiff's claims. Also, defendants contend that defendants Jon Litscher, Joseph Leeann and James Doyle are not proper parties to this action because they lack any personal involvement in the alleged unconstitutional actions.

Defendants' motion for summary judgment will be granted in all respects. Because plaintiff concedes that defendants Litscher, Leeann and Doyle are not proper parties to this action, these defendants will be dismissed. As for the merits of plaintiff's claims, plaintiff has failed to adduce evidence to show that defendants have not exercised professional judgment in enforcing the transportation policy or that no rational basis exists for distinguishing Chapter 980 patients from other civilly committed patients. In addition, he has failed to adduce any evidence from which a trier of fact could conclude that defendants have not exercised their professional judgment in developing and administering the sex offender treatment program at the Wisconsin Resource Center. Finally, because plaintiff has passed the disclosure component of the treatment program, his Fifth Amendment claim is moot.

To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1412 (7th Cir.1989). When the moving party succeeds in showing the absence of a genuine issue as to any material fact, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). The opposing party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

Before setting out the facts it is important to clarify the nature and scope of plaintiff's claims. Plaintiff is not seeking damages for past injuries but is seeking declaratory and injunctive relief to prevent defendants from continuing to engage in conduct that he contends violates his constitutional rights. This means that in order to satisfy Article III's "case or controversy" requirement, he must show either that the injuries he complains of are continuing or that he is under the immediate threat that the injuries complained of will be repeated. See Sierakowski v. Ryan, 223 F.3d 440, 444 (7th Cir.2000) ("[I]n order to invoke Article III jurisdiction a plaintiff in search of prospective equitable relief must show a significant likelihood and immediacy of sustaining some direct injury."). As the Supreme Court explained in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Id., at 102. Although past wrongs may be evidence that future violations are likely to occur, they must be accompanied by other evidence to show a sufficient likelihood that the plaintiff will be wronged later in a similar way. See Sierakowski, 223 F.3d at 444-45. This rule applies to claims for declaratory as well as injunctive relief. See Robinson v. City of Chicago, 868 F.2d 959, 966 n. 5 (7th Cir.1989)("The declaratory relief statute is not an independent basis of jurisdiction and requires an `actual controversy'.").

When plaintiff's proposed findings of fact are sifted through this legal sieve, it becomes apparent that many of his facts are immaterial because they relate solely to past wrongs that are not likely to be repeated. For example, plaintiff complains that defendants failed to enroll him in any formal sex offender treatment from June 1998 to January 1999, yet he concedes that he has been enrolled in sex offender treatment almost continuously since that time and presents no evidence to suggest that his treatment will not continue in the future. Also, plaintiff complains that treatment staff have deviated on various occasions from the Wisconsin Resource Center's internal policies regarding patient care, yet he has not alleged how any of these deviations were harmful to him in the past, much less that they are likely to harm him in the future. For example, plaintiff has complained that his April 22, 1999 care plan was deficient because it lacked an Axis II diagnosis, yet he has adduced no evidence to show what that diagnosis should have been or how the omission of such a diagnosis will affect his future treatment. He complains that no psychologist reviewed his care plan of March 27, 2000, yet he does not contend that this omission had or will have any affect on his treatment.

From my review of the record, I conclude that of all the alleged wrongs of which plaintiff complains with respect to the adequacy of his treatment, at the time plaintiff submitted his proposed findings of fact there were only two that could arguably have had any continuing, adverse effects on him: 1) his claim that he is not in treatment for a sufficient amount of time each week and 2) the requirement that patients must provide a complete disclosure of all sexual assaults, both charged and uncharged, before they are eligible to participate in the CORE treatment program or be considered for supervised release. With respect to this latter claim, plaintiff averred that he had not passed the treatment program's disclosure component (then called Gateway) because he had failed to disclose the facts related to his index offense and an uncharged sexual assault out of fear that he would expose himself to criminal charges. Plaintiff alleged that the disclosure requirement was having an adverse effect on him because it presented him with two unacceptable options: either remain in Gateway indefinitely or waive his Fifth Amendment privilege.

This claim is now moot. A claim becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). In short, "mootness [is] the `doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence.'" United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). An evaluation report submitted by defendants after plaintiff filed his initial proposed findings of fact indicates that plaintiff passed the Gateway program on February 16, 2001 and has been referred to the Core program. See Third Affid. of Diane Fergot, dkt. # 161, exh. TT (under seal). Plaintiff completed the three required assignments of the Gateway treatment group, including presentation of his index offense, his timeline and his complete sexual...