NONPRECEDENTIAL DISPOSITION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 March 21, 2012*
Decided March 21, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐2830
RICHARD M. SMEGO, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 09‐3177
ANITA PAYNE, et al., Harold A. Baker,
Defendants‐Appellees. Judge.
O R D E R
Richard Smego, a civilly committed sex offender, see 725 ILCS 207/1–99, appeals
from the grant of summary judgment for the defendants in this action under 42 U.S.C.
§ 1983. Smego is confined at the treatment center in Rushville, Illinois, and claims that the
facility director and four other current or former members of the staff deprived him of
adequate medical care and retaliated when he complained. We conclude that a jury
reasonably could decide that three of the defendants, all of them responsible for treating the
mental disorder that prompted Smego’s commitment to Rushville, violated his
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 11‐2830 Page 2
constitutional rights by causing vital treatment to be discontinued. We thus vacate the
judgment in favor of those defendants and remand for further proceedings.
We review the evidence in the light most favorable to Smego, see Coleman v. Donahoe,
667 F.3d 835, 842 (7th Cir. 2012), though we note that very few of the significant facts are in
dispute. In late March 2009 Smego filed a grievance alleging that Amber Jelinek, at that time
a predoctoral psychology intern who was recently hired and assigned as Smego’s primary
therapist, had inexplicably altered his established treatment plan and berated him about his
presentation at a session of the weekly group therapy that she led. Residents are warned
that successful completion of that therapy, called Core Group Treatment, is a precondition
to release from Rushville, where Smego has been committed since 2006. In his grievance
Smego explained that he also had shared a list of unresolved concerns about group therapy
with Dr. Okey Nwachukwu‐Udaku, a psychologist on his treatment team who regularly
helped moderate the group sessions. One of Smego’s worries, expressed in mid‐February
and again in early March, was that staff were tolerating increasingly aggressive and violent
behavior from participants, including threats of physical harm directed at other group
members. A grievance examiner interviewed Smego and reported to Anita Payne, a clinical
social worker and the leader of his treatment team, that Smego had stopped attending
group therapy because of his concerns and his suspicion that Jelinek was “out to get him.”
Before a decision was made on Smego’s grievance, Payne asked him to withdraw the
submission so that she and her treatment team could resolve the matter internally. Smego
refused and asked to be reassigned to a different therapy group.
Smego was not reassigned. In April he resumed participating in Jelinek’s group,
though he continued to complain to her and to Dr. Nwachukwu‐Udaku about hostility from
other members. Late that month he notified Jelinek that, about a week after he had filed his
grievance, another participant assaulted him during a break in one of her group sessions.
Smego described how the man had confronted him in the break room, reached into a leg of
his gym shorts and grabbed his genitals, and tried to penetrate him digitally. Smego has
said under oath that he also told team leader Payne about the incident, and she has not
denied knowledge. Jelinek confirmed in her progress notes that Smego had been “sexually
assaulted by another resident.” But she kept him in the same group, Jelinek now maintains,
because Smego had not suggested that he feared another assault or was “afraid of any
particular individual.” Smego disputes this contention. Jelinek also explains that, in her
opinion, “it was more appropriate at the time for Mr. Smego to try to work through his
problems rather than avoid them.” Jelinek concedes that a sexual assault at Rushville
“becomes a security issue” and that the victim would “have the right to file criminal
charges,” but she does not assert that she handled the assault against Smego as a security
matter or explain why she did not. Nor does she say that she filed an incident report, even
though employees of the Illinois Department of Human Services, which operates Rushville,
No. 11‐2830 Page 3
are required to do so if they discover that a resident has violated facility rules. See ILL.
ADMIN. CODE tit. 59, § 299.640.
In June the grievance examiner finally concluded her work on Smego’s submission
from March. In recommending that Smego’s grievance be denied, the examiner noted that
Payne had agreed to work with him on his treatment plan and that he had rejoined group
therapy with Jelinek. The facility director accepted the examiner’s recommendation. When
Smego appealed that ruling, the examiner contacted him, he says, and threatened to do
“everything she could” to convince him to withdraw the appeal.
Smego again stopped attending Core Group Treatment in late August. Although he
had continued to alert Jelinek and Dr. Nwachukwu‐Udaku about the open hostility
displayed by some participants, no action was taken by staff. Jelinek responded by twice
suspending Smego for a week, citing truancy as the reason, and then in early September she
removed him from Core Group Treatment entirely. Dr. Nwachukwu‐Udaku signed off on
the suspensions and removal. Soon after that Jelinek was replaced as Smego’s primary
therapist. Yet in November she participated with Payne and Dr. Nwachukwu‐Udaku in
approving an updated treatment plan for Smego. That plan now relegates the critical Core
Group Treatment as a “deferred” goal and says that Smego must complete “ancillary
treatment groups as a prerequisite for returning” to Core Group Treatment. The plan calls
for Smego to start with a group program called “Power to Change” and to meet with his
primary therapist once per month to discuss the difficulties he experienced in Core Group
Treatment.
Meanwhile, in July 2009, Smego had filed this § 1983 action against Jelinek, Payne,
and Dr. Nwachukwu‐Udaku. He also named as defendants the grievance examiner and the
facility director, but neither was personally involved in the underlying events, and so we do
not mention them further. Smego focused his civil complaint on his treatment team’s
alleged indifference, and punitive responses, to his expressions of concern about the
hostility and threats of violence among participants in Core Group Treatment. The district
court allowed Smego to proceed in forma pauperis on claims that those three defendants had
denied him adequate medical care and engaged in retaliation.
In early 2010 Smego was moved to a new living unit at Rushville where he no longer
had contact with Jelinek, Payne, or Dr. Nwachukwu‐Udaku. (At some later time, Payne and
Dr. Nwachukwu‐Udaku ceased being employed at Rushville.) Before being moved, Smego
says, those defendants told him that he would not be allowed to participate in Core Group
Treatment unless he dropped this lawsuit or joined “Power to Change.” At his deposition in
March 2010, Smego said that he had agreed to join “Power to Change” and believed that his
current primary therapist had put in a referral for him to join the program. But Smego was
No. 11‐2830 Page 4
never enrolled, and in response to his October 2010 inquiry under the Illinois Freedom of
Information Act, 5 ILCS 140/3, the Department of Human Services acknowledged that
“Power to Change” was “not currently being offered at the Rushville facility.” Thus, by
Smego’s account, the defendants had, first, dismissed him from Core Group Treatment after
he complained about the level of hostility and disclosed the sexual assault, and, second, told
him that he could not return to this essential group therapy unless he dropped this lawsuit
or completed a “prerequisite” that Rushville does not offer.
The defendants moved for summary judgment in early 2011. Jelinek did not suggest
that the assault committed against Smego was too trivial to mandate action, nor did she
deny that Smego had identified his assailant as one of the other participants in her group.
Neither did she deny that Smego’s absences had followed the assault. As noted, her only
explanation for refusing to transfer Smego to a different therapy group after the assault was
her personal view that he should be forced to “work through his problems.” Payne did not
deny that Smego had told her about the assault, and in fact she conceded that as team leader
she has access to, and regularly audits, the treatment notes of her team members. Payne did
not assert that she was unaware of the link between the assault against Smego and his
absences afterward. Nor did Dr. Nwachukwu‐Udaku, who signed off on Jelinek’s proposal
to terminate Smego’s participation in group therapy. None of these defendants denied that
they then approved a treatment plan which, effectively, penalizes Smego for seeking a
transfer to a different group after the assault. And neither did any of the three contradict
Smego’s deposition testimony that they told him that the only way to get back into Core
Group Treatment was to drop this lawsuit or sign up for a program that does not exist at
Rushville.
Smego responded to the defendants’ motion in the form required by C.D. Ill. R.
7.1(D)(2). As evidence of retaliation, he submitted affidavits from ten of his fellow
detainees—including the one who committed the assault—saying that guards conducted a
shakedown of his cell in July 2009 shortly after he filed this lawsuit and warned that they
would conduct another if he filed any more grievances. Three detainees also said that they
witnessed Jelinek tell Smego that, because he filed this lawsuit, he would be kicked out of
Core Group Treatment unless he quit. Some of these Rushville residents confirm that Smego
was badgered and threatened with physical violence by other participants in group therapy,
that Jelinek and Dr. Nwachukwu‐Udaku were present on many occasions, and that neither
therapist was willing to address the issue. As evidence of inadequate treatment, Smego
produced a letter from Dr. Kirk Witherspoon, an outside clinical psychologist who on a
number of occasions has completed psychological evaluations of sex offenders for Illinois
state courts. See In re Detention of Stanbridge, 948 N.E.2d 1063, 1065 (Ill. App. Ct. 2011); In re
Commitment of Sandry, 857 N.E.2d 295, 301 (Ill. App. Ct. 2006). Dr. Witherspoon opined that
the refusal to transfer Smego to a different therapy group after a participant had assaulted
No. 11‐2830 Page 5
him was “quite inappropriate.” Dr. Witherspoon explained that licensed psychologists must
comply with ethical guidelines requiring that patients “be treated in a respectful manner”
and advised that Smego could inform licensing authorities if he cannot otherwise resolve
the matter.
In granting summary judgment for the defendants, the district court reasoned that
there was “no evidence” that the defendants’ medical decisions had departed substantially
from accepted professional standards, and no evidence to support Smego’s claim of
retaliation. Rather, the court asserted, the evidence at summary judgment established that
Smego had been booted from group therapy because he refused to attend, not because he
complained about his safety, and that Jelinek had acted within her professional discretion
by deciding that Smego needed to “work out his problems with the group members.” The
court did not mention Dr. Witherspoon’s opinion.
On appeal Smego argues that the three members of his treatment team deprived him
of essential medical care by ignoring a “powder keg” of violent threats among participants
in Jelinek’s therapy group and then refusing to transfer him to different group after the
assault by one of those participants. Civilly committed sex offenders have a Fourteenth
Amendment right to adequate medical care. See Battista v. Clarke, 645 F.3d 449, 452–53 (1st
Cir. 2011); Sain v. Wood, 512 F.3d 886, 893 (7th Cir. 2008); Senty‐Haugen v. Goodno, 462 F.3d
876, 889 (8th Cir. 2006). The defendants do not dispute that Smego’s mental disorder—the
reason that he must complete Core Group Treatment if he hopes to be released from
Rushville—constitutes a serious medical need. But they argue that we must defer to
decisions of medical professionals unless a jury reasonably could find a particular decision
“so far afield of accepted professional standards as to raise the inference that it was not
actually based on a medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006);
see Youngberg v. Romeo, 457 U.S. 307, 322–23 (1982); Sain, 512 F.3d at 894–95.
We conclude that there is enough evidence in this record for a jury to find in Smego’s
favor. When he avoided Core Group Treatment out of fear for his safety, the defendants
opted to terminate his treatment altogether rather than move him to a different group, even
though Jelinek herself has acknowledged that the sexual assault raised a serious security
concern and that Core Group Treatment is essential for Smego to progress toward release.
Jelinek’s only explanation for refusing a transfer to a different group is that Smego should
be forced to “work through his problems.” Not one medical professional has defended that
view as consistent with professional standards. In fact, the only professional to comment on
Jelinek’s approach describes it as “quite inappropriate” under the ethical standards for
clinical psychologists. In this court the defendants do not so much as acknowledge
Dr. Witherspoon’s opinion, and yet they make the frivolous assertion that “no evidence”
shows that they acted in a manner inconsistent with accepted medical practice. Construed
No. 11‐2830 Page 6
in Smego’s favor, Dr. Witherspoon’s assessment reveals more than a difference of opinion
about the best course of treatment. See Norfleet, 439 F.3d at 396; Steele v. Choi, 82 F.3d 175, 179
(7th Cir. 1996). Rather, putting aside the issue of retaliation, Dr. Witherspoon’s opinion
evidences a material dispute of fact concerning whether Jelinek substantially departed from
professional standards by not moving Smego to a different therapy group. See Ortiz v.
Webster, 655 F.3d 731, 735 (7th Cir. 2011); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010);
Gayton v. McCoy, 593 F.3d 610, 623–24 (7th Cir. 2010); Chavez v. Cady, 207 F.3d 901, 905–06
(7th Cir. 2000).
What we have said about Jelinek applies equally to Payne and Dr. Nwachukwu‐
Udaku. To be liable under § 1983, they needed to have known of the deficient medical
treatment and either facilitated, approved, condoned, or blinded themselves to it. See Knight
v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.
2006). As for Payne, she was in charge of Smego’s treatment team and does not deny
knowledge of the assault or Smego’s other safety concerns. She concedes that it was her
responsibility to oversee the team’s conduct and review progress notes, and a jury may infer
that she closely monitored Jelinek, who was, at the time, a fresh‐out‐of‐school intern. Payne
nonetheless agreed to “defer” Core Group Treatment and require Smego to complete the
illusory “Power to Change” program as a prerequisite to him rejoining group therapy. As
for Dr. Nwachukwu‐Udaku, even though Smego had repeatedly told him about troubling
threats from participants in group therapy, he approved Jelinek’s plan to boot Smego from
Core Group Treatment entirely rather than transfer him to a different group. And, like
Payne, Dr. Nwachukwu‐Udaku ratified a treatment plan that requires Smego to complete
the nonexistent “Power to Change” as a prerequisite to obtaining the treatment he actually
needs. A jury reasonably could conclude that both Payne and Dr. Nwachukwu‐Udaku
actively participated in depriving Smego of essential medical care. See Hildebrandt v. Ill.
Dep’t of Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003); Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995).
If there was doubt about that conclusion, Smego’s evidence of retaliation eliminates
it. To succeed on his retaliation claim, Smego must show that (1) he engaged in activity
protected under the First Amendment, (2) the defendants’ actions would deter protected
activity in the future, and (3) his complaints motivated their actions. See Watkins v. Kasper,
599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). As to the
first element, the defendants argue that Smego’s expressions of concern were not protected
activity because some of them were raised during group therapy. See Watkins, 599 F.3d at
797. But Smego also raised his concerns through the formal grievance system and this
lawsuit, and those acts were protected by the First Amendment. See Hoskins v. Lenear, 395
F.3d 372, 375 (7th Cir. 2005); DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). Second, the
defendants argue that their actions would not deter future protected activity. But even
No. 11‐2830 Page 7
when it does not constitute deliberate indifference, deprivation of medical care is enough to
deter protected activity when combined with retaliatory animus. See DeWalt, 224 F.3d at
618; Murphy v. Lane, 833 F.2d 106, 108–09 (7th Cir. 1987). The defendants last contend that
Smego has no evidence of retaliatory motive. But the chronology of events is enough to raise
an inference of retaliation. See Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009); Murphy,
833 F.2d at 109. After Smego first complained about violent threats from participants of his
therapy group, Jelinek and Payne learned that he had been assaulted by one of those
participants and yet refused to seek alternative arrangements. Then, after Smego had filed
this lawsuit, Jelinek told him he would be removed from Core Group Treatment unless he
quit voluntarily. He did not quit, and after the district court allowed his claims to proceed,
Jelinek and Dr. Nwachukwu‐Udaku terminated him from his therapy group within a
month and, along with Payne, later updated his treatment plan to include an impossible‐to‐
complete prerequisite. Moreover, all three defendants told him that he would remain barred
from Core Group Treatment unless he dropped this lawsuit (or performed the impossible
task of completing “Power to Change”), and that evidence is enough to raise a reasonable
inference that they deprived him of treatment because of hostility toward his exercise of
protected rights. See Greene v. Doruff, 660 F.3d 975, 980 (7th Cir. 2011); Spiegla v. Hull, 371
F.3d 928, 943 (7th Cir. 2004).
There is sufficient evidence in this record for a jury to find that, since mid‐2009, the
treatment that is essential to Smego’s hopes of eventual release from Rushville has been at a
standstill because of the actions of Jelinek, Payne, and Dr. Nwachukwu‐Udaku. The district
court’s grant of summary judgment in favor of these defendants is VACATED, and as to
those defendants the case is REMANDED for further proceedings consistent with this order.
In all other respects the judgment is AFFIRMED.