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.
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SUBMITTED JUNE 24, 2016 — DECIDED SEPTEMBER 19, 2016
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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.