Thomas Powers v. Jennifer Block ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
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, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 4:15-cv-04083
JENNIFER BLOCK, et al., Harold A. Baker,
Defendants-Appellees. Judge.
ORDER
Thomas Powers, a civil detainee at Rushville Treatment and Detention Facility,
believes that he is not receiving proper “sex-offender-specific” treatment for his mental
disorder. He contends that, in retaliation for filing grievances and lawsuits objecting to
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. Rule 34(a)(2)(C).
No. 17-3441 Page 2
his therapy, the defendants—various clinicians 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 evidence 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 assessments 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 determine 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 diagnosis 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 assault and aggravated unlawful restraint. He
believes that the defendants deny him appropriate 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 underlying sex offense and tried to steer
the conversation toward whether he met the diagnostic criteria for commitment.
Powers’s retaliation claim stems in part from an incident involving Dr. Block in
December 2014. Dr. Block recounts in an affidavit that during one group session,
Powers stated that she should “fear” him. Powers maintains that all he said was that he
“only fears God.” Two days later Dr. Block wrote an incident report stating that Powers
threatened her. Although Powers believes that Dr. Block wrote the report in retaliation
No. 17-3441 Page 3
for disagreeing with her evaluation, Dr. Block says that facility rules required her to file
the report. On the day the report was filed, security staff removed all Powers’s property
from his room except his underwear and placed him on suicide watch. He ultimately
received a warning for “insolence” and was returned 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 next 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 feedback. Lodge added that it would be futile
to advance Powers to the next treatment group before addressing the aforementioned
deficiencies.
Powers brought this suit under 42 U.S.C. § 1983, asserting that the defendants
violated his due process rights under the Fourteenth Amendment by denying him
adequate, individualized, sex-offender-specific treatment for his diagnosis and by not
advancing him in treatment. He characterized his current treatment as a “sham”
because it was “non-sex-offender-specific” and 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 grievances and lawsuits, in violation of his
First Amendment rights, by withholding proper treatment and placing him on suicide
watch. Powers argued that certain defendants—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 judgment for the defendants. It found that
his attacks on the defendants’ licensing credentials 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-sex-
offender-specific” treatment, and (2) that the defendants already should have advanced
No. 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 court 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 identifying 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 district 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 Offender 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 record undermines any concern about the
defendants’ qualifications. In the context 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 licenses to provide mental health treatment.
Furthermore, Lodge received her license before the licensing requirements went into
effect and supervised Carreon and Dr. Block while they were unlicensed. Jumper, as the
clinical director, did not directly treat Powers but any question about his professional
judgment is quelled by his nearly twenty years of experience working in Illinois’s
treatment and detention facilities. Given the defendants’ relevant credentials and
experience, a reasonable jury could not accept Powers’s contention that the defendants
lacked professional judgment in providing treatment for his paraphilic disorder.
Next, Powers argues that the district judge 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 inadequate 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 Powers’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 treatment, 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 treatment program is constitutionally deficient
because it does not show that his treatment was decided by non-professionals. See id. As
for the fifteen-year old expert reports, Powers does not specify what opinions are
contained in them nor does he otherwise explain their relevance.
Turning to the district court’s determination that he had not provided any
evidence to demonstrate that his treatment was inadequate, Powers argues that the
judge should have credited his sworn statement that his “sex offender specific”
treatment lasts only forty-five minutes every four to five weeks. Along these lines, he
says the judge overlooked four affidavits from Rushville residents concurring that their
treatment is “not adequate.”
But decisions made by competent treatment providers violate the Constitution
only if they show “such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that 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 statements otherwise reflect a departure from
professional judgment, practice, or accepted standards. A reasonable jury could not find
for Powers based on mere dissatisfaction 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 defendants’ retaliatory motives. He points to a
series of emails between Rushville staff members 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 Rushville staff member—not a defendant in this
case—commenting about Powers’s right to access 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 grievances or litigation, and the adequacy or
progress of his treatment. Based on this degree of speculation, a reasonable jury could
not conclude that the defendants possessed 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 retaliate 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 placement on suicide watch was suspicious and
inconsistent with her charge that he threatened her.
We agree with the district court that this evidence failed to preclude summary
judgment. Circumstantial evidence, such as suspicious timing or behavior, may signal
retaliation, but the adverse action must “follow[] 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 alone 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 incident 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 procedural challenges. Powers asserts, first,
that the court erred by not appointing an expert to determine the efficacy of Rushville’s
treatment program. Finding that an expert was unnecessary for Powers to show
retaliation or the inadequacy of his treatment, the court denied his request on grounds
that Powers in fact was asking for the court to determine his Fourteenth Amendment
claim under the guise of a Daubert hearing. 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 because, although a court may appoint an expert to help
sort through conflicting evidence, matters such 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 recruited 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 demonstrate 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 capable 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 able to engage in the discovery
process. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007).
AFFIRMED