FILED

June 5, 2014 Carla Bender NO. 4-12-1086 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JEREMY L. SCHLOSS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of and ) Schuyler County WALTER PEGUES, ) No. 12CH6 Plaintiff, ) v. ) SHAN JUMPER, FORREST ASHBY, and THE ) Honorable DEPARTMENT OF HUMAN SERVICES, ) Alesia A. McMillen, Defendants-Appellees. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.

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

-2- 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.

-3- ¶ 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,

(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

-4- 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,

,

(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.,

,

(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

-5- 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,

,

(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 amended complaint failed to state a claim upon

which relief could be granted. Plaintiff has abandoned counts I, II, IV, and V on appeal. As a

result, on appeal, we address only whether count III states a claim upon which relief may be

granted.

¶ 20 A section 2-615 motion attacks the legal sufficiency of the complaint. Turner v.

Memorial Medical Center,

,

(2009). "To survive a

motion to dismiss for the failure to state a cause of action, a complaint must be both legally and

factually sufficient." Rodriguez v. Illinois Prisoner Review Board,

,

(2007). "The question presented by a section 2-615 motion to dismiss is

whether the allegations of the complaint, when taken as true and viewed in a light most favorable

to the plaintiff, are sufficient to state a cause of action upon which relief can be granted."

Turner,

,

. Illinois is a fact-pleading jurisdiction in which the

plaintiff must allege specific facts to bring the complaint's allegations within a recognized cause

-6- of action. Turner,

,

. The trial court should only grant a

section 2-615 motion where it appears that the plaintiff can plead no set of facts that would

entitle him to relief. Ozuk v. River Grove Board of Education,

,

(1996).

¶ 21 In count III of his amended complaint, plaintiff claimed defendants violated his

civil rights by restricting access to various forms of media based on security or therapy concerns.

Count III states:

"The actions of the [DHS] dafendants [sic] as alleged in

paragraphs 1 to 49 constitute unreasonable and unwarranted

restrictions on plaintiffs' right to freedom of speech and

expression, in violation of his rights, privileges, and immunities

guaranteed by the First Amendment to the United States

Constitution, and Article I, Section 4 of the Illinois Constitution,

and further violate our rights as guaranteed by restricting our

access to various forms of media based upon security or therapy

concerns."

¶ 22 "The fact of confinement and the needs of the penal institution impose limitations

on constitutional rights, including those derived from the First Amendment ***." Jones v. North

Carolina Prisoners' Labor Union, Inc.,

(1977). Restrictions on an inmate's

constitutional rights are valid if they are reasonably related to legitimate penological interests.

Turner v. Safley,

(1987). Although defendants recognize this standard is used

for prisoners' claims, this is the standard the Seventh Circuit Court of Appeals has applied to

-7- constitutional claims by civil detainees. See Lane v. Williams,

(7th Cir.

2012). As the Seventh Circuit Court of Appeals explained in Lane:

"Because Turner tells courts to consider the challenged

regulation in relation to the government's legitimate interests, it

would not be too difficult to adapt its standard for claims by civil

detainees. To do so, courts would only have to recognize the

different legitimate interests that governments have with regard to

prisoners as compared with civil detainees." Lane,

.

Thus, we believe an analysis utilizing the factors set forth in Turner is appropriate here despite

the fact that plaintiff is not a prisoner. See Bell v. Wolfish,

(1979) ("A

detainee simply does not possess the full range of freedoms of an unincarcerated individual"

because "[t]he fact of confinement as well as the legitimate goals and policies" of the institution

limit constitutional rights.); Allison v. Snyder,

(7th Cir. 2003) (persons

confined as sexually violent "may be subjected to the ordinary conditions of confinement").

¶ 23 To determine the reasonableness of defendants' conduct, restricting plaintiff's

access to various forms of media based upon security or therapy concerns, this court will

consider four factors: (1) whether there is a " 'valid, rational connection' between the prison

regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there

are alternative means of exercising the right that remain open to prison inmates"; (3) what

"impact accommodation of the asserted constitutional right will have on guards and other

inmates"; and (4) whether there is an "absence of ready alternatives." Turner,

.

-8- ¶ 24 DHS has promulgated rules detailing the rights of sexually violent persons

detained in a secure residential facility. Plaintiff admits the Rushville Treatment and Detention

Facility "is operated by [DHS] and is governed by Illinois Administrative Code Title 59."

Section 299.330(e) of Title 59 of the Illinois Administrative Code (Administrative Code)

provides sexually violent persons "may only acquire personal property in accordance with

provisions of this Part or posted rules established by the Program Director where the resident is

assigned." 59 Ill. Adm. Code 299.330(e) (2000). The Administrative Code further provides:

"1) Possession and use of certain classes of property may be

restricted by the Program Director when necessary to protect the

resident or others from harm.

2) The professional responsible for overseeing the

implementation of a resident's services plan may, with the approval

of the Program Director, restrict the right to property when

necessary to insure implementation of the services plan, protect

such resident or others from harm, or as part of the Resident

Behavior Management System." 59 Ill. Adm. Code 299.330(e)(1),

(2) (2000).

¶ 25 In a memorandum dated January 13, 2011, the program director advised residents

of the Rushville Treatment and Detention Facility regarding "MOVIE AND GAME

PROHIBITED LISTS." Although the memorandum was not attached to the pleadings before the

trial court, defendants include in their appendix before this court a copy of the memorandum, and

both plaintiff and defendants cite the memorandum in their appellate briefs. Accordingly, we

will consider the memorandum here. The memorandum advised residents they may purchase or

-9- possess R-rated movies and MA-rated video games except for those on a prohibited media list

"which contains titles with sexual and/or graphic violent themes deemed especially counter-

therapeutic." Further, a note appearing on the list of restricted movies included the following:

"All movies must be rated by the Motion Picture Association of America (MPAA). Any movies

that are un-rated or not rated by the MPAA are restricted. The only exceptions are movies made

prior to the MPAA rating system (1968) that are general, non-graphic movies." A similar note

appearing on the list of restricted video games states: "All un-rated Video Game Demos and

Rating Pending (RP) Video Games are restricted."

¶ 26 Plaintiff does not allege he was denied all media or access, only that he does not

have unfettered access to media opportunities. This is not a claim upon which relief may be

granted.

¶ 27 Specifically, plaintiff makes a limited attack on section 299.330 of Title 59 of the

Administrative Code but admits the treatment and detention center "is operated by [DHS] and is

governed by Illinois Administrative Code Title 59." Plaintiff challenges the reliance on the

rating systems to screen out movies and video games for inmate viewing. Specifically, plaintiff

asserts he has been denied access to "medias of legal, educational and of a religious subject

matter because they are not rated or governed by the ESRB or the MPAA." However, in his

amended complaint, plaintiff stated a resident handbook provides unrated media may be

submitted to a treatment team for approval for resident viewing purposes. Plaintiff admits he did

not avail himself of this procedure, deeming it futile.

¶ 28 Here, the program director articulated a " 'valid, rational connection' " between

the media restrictions and the therapy concerns. Turner,

. As the memo states, the

therapy concerns arise from R-rated movies and MA-rated video games "which contain[] titles

- 10 - with sexual and/or graphic violent themes." Striking down these restrictions could negatively

impact therapy concerns. See also McKune v. Lile,

(2002) ("[R]ehabilitation is a

legitimate penological interest that must be weighed against the exercise of an inmate's liberty.");

Turner,

(rehabilitation and maintaining security are legitimate penological

interests); Allison,

(preventing escape and assuring safety of others are

legitimate institutional interests). In addition, the treatment and detention center has an interest

in promoting rehabilitation and a therapeutic environment by preventing residents from viewing

movies that may reinforce cognitive distortions or sexual deviance and playing video games that

may encourage antisocial or obsessive behavior. See Hedgespeth v. Bartow, No. 09-CV-246-

SLC,

, at *7 (W.D. Wis. July 27, 2010). Moreover, defendants have a

legitimate security interest in making uniform rules regarding property ownership and media

restrictions to prevent discord, extortion, and unauthorized property exchanges among patients,

as well as legitimate security and rehabilitative interests in keeping potentially damaging

materials out of the institution altogether. See Hedgespeth,

, at *8.

¶ 29 To be sure, the ban means "un-rated or not rated" movies made after the MPAA

rating system (1968) and "un-rated Video Game Demos and Rating Pending (RP) Video Games"

are presumptively unavailable for purchase or possession. However, the resident handbook

creates a procedure by which residents may present specific unrated movies and video games for

a determination by a treatment team whether the movie or video game may be purchased or

possessed.

¶ 30 With regard to the second and fourth Turner factors, plaintiff has alternate means

to exercise his first amendment rights that do not involve the purchase or possession of movies

and games titled with sexually or graphically violent themes, while the facility has no ready

- 11 - alternatives to avert the therapy concerns posed by movies and games with sexually or

graphically violent themes other than restricting them. See Turner,

. Plaintiff has

access to all R-rated movies and MA-rated video games that do not appear on the "MOVIE AND

GAME PROHIBITED LISTS" and additional media through allowable books, newspapers,

magazines, television, and radio. He is not constitutionally required to have access to all media.

See Singer v. Raemisch,

(7th Cir. 2010) (banning of fantasy role-playing

games was rationally related to legitimate penological interests and the prisoner had alternative

means of exercising his right, such as possessing other reading materials or playing allowable

games).

¶ 31 Finally, unrestricted access to all media would likely interfere with the efforts to

treat residents and operate the facility in a secure and orderly manner. See Turner,

. It is dubious the constitution would require a treatment and detention facility for sexually

violent persons to permit its residents the unfettered right to purchase or possess movies and

games with sexually or graphically violent themes deemed "counter-therapeutic." Such an

interpretation would ignore the substantial deference afforded the facility's administrators. See

Beard v. Banks,

(2006) ("[C]ourts owe 'substantial deference to the

professional judgment of prison administrators.' [Citation.]").

¶ 32 For the reasons set forth above, we find the media restrictions to be reasonable

and not unconstitutional. Consequently, plaintiff failed to state a cognizable first-amendment

claim against defendants and count III of his complaint was properly dismissed with prejudice.

¶ 33 Plaintiff next argues the trial court erred by granting defendants' motions to

dismiss without ruling on his motion for an extension of time to respond to defendants' motions

to dismiss. We disagree.

- 12 - ¶ 34 Following a hearing on July 26, 2012, the trial court entered an order granting

defendants' motions to dismiss plaintiff's initial complaint. Plaintiff and defendants agreed

plaintiff would have until October 1, 2012, to file an amended complaint, and defendants would

have until November 1, 2012, to respond. Plaintiff would then have until November 15, 2012, to

reply to defendants' responses.

¶ 35 Plaintiff filed his amended complaint on September 27, 2012. On November 1,

2012, and November 9, 2012, defendants filed their motions to dismiss plaintiff's amended

complaint. Also on November 9, 2012, plaintiff sought an extension of time, from November

15, 2012, to December 30, 2012, to respond to defendants' motions to dismiss. Plaintiff asserted

he was preparing to represent himself in trial and had limited access to legal research.

¶ 36 Without ruling on plaintiff's 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 plaintiff failed to state a claim upon which relief could be granted

and some of plaintiff's claims were barred by res judicata. Plaintiff did not file a motion to

reconsider the court's order granting defendants' motions to dismiss. Instead, plaintiff filed a

notice of appeal on November 29, 2012.

¶ 37 "The [trial] court has the right and duty to control its own docket." Hutchcraft v.

Independent Mechanical Industries, Inc.,

,

(2000). Further, the court is vested with wide discretion in granting or denying extensions of

time to file pleadings or motions. See 735 ILCS 5/2-1007 (West 2010); Ill. S. Ct. R. 183 (eff.

Feb. 16, 2011). Here, the court had discretion to grant defendants' motions to dismiss plaintiff's

amended complaint without allowing plaintiff additional time to respond to the motions. We

conclude the trial court did not abuse its discretion by granting defendants' motions to dismiss

- 13 - plaintiff's amended complaint and, thereby, denying plaintiff's motion for an extension of time to

respond to defendants' motions.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we affirm the trial court's judgment.

¶ 40 Affirmed.

- 14 -