Powers v. Hymes

NOTICE 2022 IL App (4th) 210703-U FILED
This Order was filed under October 19, 2022
Supreme Court Rule 23 and is NO. 4-21-0703 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THOMAS POWERS, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Schuyler County
HEATHER HYMES, PAULA LODGE, LOUIS SISTO, ) No. 20L7
and OLIVIA ORWITZ, )
Defendants-Appellees. ) Honorable
) Ramon M. Escapa,
) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices Turner and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed because plaintiff’s claims were barred by principles
of res judicata. Plaintiff previously raised his claims in both federal and state
court and failed to present a record to show he could not have raised allegedly
new claims in his previous actions. Plaintiff further failed to state a claim based
on the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2020)).

¶2 Plaintiff, Thomas Powers, a civil detainee at the Rushville Treatment and

Detention Facility (the facility) under the Illinois Sexually Violent Persons Commitment Act

(725 ILCS 207/1 et seq. (West 2020)), filed a pro se complaint against defendants Heather

Hymes, Paula Lodge, Louis Sisto, and Olivia Orwitz. The record indicates defendants are

employees of a vendor of the facility contracted to provide sex-offender and mental health

treatment. Plaintiff alleged violations of the Illinois Constitution and the Illinois False Claims

Act (Act) (740 ILCS 175/1 et seq. (West 2020)) in connection with claims he was denied sex-
offender treatment specific to his diagnosed disorder. The trial court granted defendants’ motion

to dismiss based on plaintiff’s failure to state a claim and principles of res judicata.

¶3 Plaintiff appeals, contending res judicata does not apply and he sufficiently stated

constitutional and statutory claims. We affirm.

¶4 I. BACKGROUND

¶5 A. Plaintiff’s Previous Federal Actions

¶6 The record shows plaintiff has previously filed at least 35 federal lawsuits

concerning his detention at the facility. In addition, the record shows the Seventh Circuit Court

of Appeals has found plaintiff abused the federal district court’s partial filing fee procedure and

thus restricted his ability to proceed in forma pauperis until he has paid in full all outstanding

fees and costs connected with his lawsuits. Plaintiff filed his complaint in the instant case shortly

after the United States District Court for the Central District of Illinois dismissed a lawsuit filed

against the same defendants in the instant case and additional defendants. Powers v. Caraway,

et al., Case No. 20-cv-04080 (Caraway).

¶7 In Caraway, plaintiff originally filed a complaint on November 26, 2019, in state

court alleging unspecified violations of the Illinois Constitution. Defendants removed the case to

federal court, and plaintiff filed a motion to remand back to state court. The federal court noted

plaintiff alleged violations of the Illinois Constitution, but clearly made the same or similar

federal claims that were raised in previous federal cases. The court denied the motion to remand

and next addressed a motion by plaintiff for leave to amend. On July 16, 2020, the court denied

the motion and dismissed the case with prejudice.

¶8 Among plaintiff’s claims, the court first addressed a due process claim, noting

plaintiff alleged multiple defendants, including Lodge, violated his due process rights by denying

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him treatment for his specific diagnosis of “other specified paraphilic disorder (OSPD)

‘nonconsent.’ ” Instead, plaintiff was assigned to a “Power to Change” therapy group, which he

alleged was not sex-offender-specific treatment. Plaintiff also alleged defendants refused to

allow him to progress in treatment or be placed in sex-offender treatment unless or until he

admitted facts connected with his criminal conviction, which he argued would violate his

constitutional right against self-incrimination. He stated he “never received treatment” for OSPD

nonconsent since his arrival at the facility and the denial was a departure from standards of

professional judgment. Plaintiff further alleged the denial deprived him of liberty interests,

because the lack of sex-offender treatment acted to deny him of “treatment tasks,” such as

dietary work, to prepare him to perform such duties when he reached conditional release. He

indicated he was also denied the ability to receive “life reward points” to purchase items at the

facility. Plaintiff noted employee progress notes stating he “uses ‘power and control’ in

lawsuits,” “refuses to accept responsibility,” “minimizes,” and “brings legal agenda and God in

groups.” Plaintiff alleged those statements were untrue. He also alleged behavior reports

describing him as resistant to treatment were untrue.

¶9 The federal court observed plaintiff previously filed suits making the same claims.

The court then held plaintiff failed to state a claim because, as the Seventh Circuit held in one of

his previous cases, under Youngberg v. Romeo, 457 U.S. 307, 323 (1982), the constitution

requires only that committed persons are entitled to some treatment and what that treatment

entails must be decided by mental health professionals whose professional choices are

presumptively valid absent a substantial departure from accepted professional practice. See

Powers v. Block, 750 Fed. Appx. 480, 484 (7th Cir. 2018). The court found the Power to Change

group was a common therapy group and requiring plaintiff to admit to prior acts of sexual

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violence to progress through treatment was a reasonable focus of treatment and not in violation

of his right against self-incrimination. The court found plaintiff failed to allege facts suggesting

defendants demonstrated a substantial departure from accepted professional judgment, as general

dissatisfaction with group therapy did not rise to the level of a constitutional violation. The court

also addressed allegations of retaliation for filing lawsuits, including allegations defendants

denied plaintiff room requests, limited his library time, and denied him a dietary job. The court

found those claims were previously raised and involved vague allegations without reference to

specific time frames. The court further rejected a claim defendants conspired to deny plaintiff

treatment and found the complaint did not support an official-capacity claim. Ultimately, the

court found plaintiff failed to state claim upon which relief could be granted. Plaintiff appealed.

On October 29, 2020, the Seventh Circuit dismissed for failure to pay the required docketing fee.

¶ 10 The record also shows another federal case, Powers v. Lodge, et. al., No.

18-cv-04211 (Lodge), alleging the same or similar claims. On January 10, 2019, that case was

initially allowed to proceed after a merit review. However, it was ultimately dismissed on July 6,

2019, without prejudice for failure to pay the required partial filing fee. Plaintiff’s appeal was

dismissed.

¶ 11 B. Plaintiff’s Current Action

¶ 12 Plaintiff filed his complaint that is the subject of this appeal on August 20, 2020.

In his complaint, plaintiff generally alleged violations of multiple sections of the Illinois

Constitution, including alleging violations of due process and his right against self-incrimination.

See Ill. Const. 1970, art. I, §§ 6, 10. He alleged he consented to treatment for OSPD nonconsent

but never received treatment for his disorder. He stated placing him in the Power to Change

group did not treat his condition and was a departure from professional judgment that amounted

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to punishment and was a sham. He further alleged defendants denied him progress in treatment

unless he admitted to facts about previous criminal acts. Plaintiff also appeared to take issue with

an overall “five phase program.” He argued under Kansas v. Hendricks, 521 U.S. 346 (1997),

“treatment” required a specified number of hours, and the denial of treatment was punishment

under Kingsley v. Hendrickson, 576 U.S. 389 (2015), a case involving the use of excessive force.

He also appeared to argue he was entitled to “treatment tasks,” such as dietary work, and “life

points.”

¶ 13 In count I, plaintiff alleged, after the federal court’s decision in Caraway, which

he referred to as “unlawful,” defendants “continued” to deny him treatment for his specific

disorder. He stated unless a court intervened, he would continue to be denied sex-offender

treatment. He also alleged Lodge and other defendants removed him from the Power to Change

group because he would not lie to stay in the group. He stated Orwitz and Hymes fabricated

progress notes and a master treatment plan stating he struggled to take personal responsibility for

change, talked over others, and “presented unrelated topic of question.” Plaintiff alleged the

notes were a pretext to use against him in civil-commitment proceedings, alleged he was not

allowed to work in a dietary program, and his treatment was sham. He further alleged he was

denied “all treatment,” by defendants, denied “life reward points,” and denied phone access.

¶ 14 In count II, plaintiff alleged a violation of the False Claims Act, referring to a

contract stating an unnamed vendor shall provide sex-offender treatment services and make

services available to all people detained at the facility in need of such services. Plaintiff did not

attach a copy of the contract to the complaint. Overall, plaintiff sought a declaratory judgment,

compensatory damages, punitive damages, and the value of the contract.

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¶ 15 On September 16, 2020, plaintiff filed a motion for an order that he receive sex-

offender-specific treatment. In the motion, he repeated allegations he was denied such treatment

because of his past and present litigation.

¶ 16 Defendants moved to dismiss plaintiff’s complaint under section 2-615 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615) (West 2020)). Defendants alleged in part

plaintiff failed to plead sufficient facts to state a claim and failed to attach the contract to the

complaint. Plaintiff replied, arguing again he was continually denied sex-offender treatment and

was entitled to compensatory damages. He also filed a motion seeking an injunction, asking the

court to order defendants to provide treatment specific to his disorder. Throughout his pleadings,

plaintiff routinely cited to defendants’ acts as being in violation of Kingsley.

¶ 17 The record shows a hearing was held on March 9, 2021, with each side presenting

arguments and discussing principles of res judicata. The record shows the parties also discussed

plaintiff’s filings in another state court case assigned to the same trial court judge, case No. 20-L-

3, and the hearings for both cases were held on the same day. However, a transcript of the

hearing or appropriate substitute does not appear in the record.

¶ 18 After the hearing, defendants filed a supplemental pleading in both the instant

case and in case No. 20-L-3 documenting plaintiff’s other court filings. Those included

documents from Caraway and Lodge, and a list of plaintiff’s other federal filings. Defendants

also noted claims in case No. 20-L-3, in which plaintiff alleged he was denied treatment, denied

a vocational task such as working in dietary, asked to lie to obtain treatment, and punished in

retaliation. However, the actual pleadings for that case were not included, as defendants asked

the trial court to take judicial notice of the file. Online records of the trial court show plaintiff

filed case No. 20-L-3 on May 5, 2020, including Lodge, John or Jane Doe, and others as

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defendants. The court dismissed the case with prejudice on July 13, 2021. Plaintiff’s motion to

reconsider was denied on November 17, 2021. See Schuyler County, IL Case History,

https://www.judici.com/courts/cases/case_history.jsp?court=IL085015J&ocl=IL085015J,2020L3

,IL085015JL2020L3D1 (last visited August 25, 2022). Defendants argued based on plaintiff’s

pleadings in case No. 20-L-3 and in federal court, it was clear plaintiff was refiling the same case

over and over.

¶ 19 Plaintiff filed a response to the supplemental pleading, arguing as of July 6, 2020,

Lodge and other defendants involuntarily removed him from all treatment and stating, “to date

[plaintiff] has not been allowed any sex offender treatment.” He stated his claim in case No. 20-

L-3 stemmed from Lodge’s denial of his requests for a dietary position.

¶ 20 The trial court dismissed the complaint with prejudice, holding plaintiff failed to

state a cause of action and, to the extent plaintiff claimed inadequate treatment, the claims were

barred by principles of res judicata and issue preclusion. There is a discrepancy in the record as

to the date of the dismissal. The order is dated July 12, 2021, but file stamped July 8, 2021.

Online court records show it was dismissed July 13, 2021, the same day as case No. 20-L-3. See

Schuyler County, IL Case History,

https://www.judici.com/courts/cases/case_dispositions.jsp?court=IL085015J&ocl=IL085015J,20

20L7,IL085015JL2020L7D3 (last visited Oct. 18, 2022).

¶ 21 In its order, the court specifically stated, “in light of [p]laintiff’s pleadings filed in

20-L-3” it took judicial notice of all pleadings filed by plaintiff in both state and federal court.

The court found plaintiff’s pleadings contained “similar if not identical allegations” in which a

court had deemed the allegations did not state a cause of action. The court further found

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plaintiff’s complaint failed to meet the minimal factual allegations required to state a claim under

the False Claims Act.

¶ 22 Plaintiff filed a motion to reconsider, arguing since July 6, 2020, he was denied

treatment in violation of Kingsley and the trial court misapplied the facts to the law. In doing so,

plaintiff referenced case No. 20-L-3, writing, as stated in case No. 20-L-3 the Caraway decision

did not apply, but Kingsley did apply for determining inadequate mental health treatment.

Defendants responded to the extent plaintiff raised new facts, arguments, or legal theories, he

failed to explain why they were not available at the original hearing. Defendants also argued

Kingsley did not apply and the correct standard applying to denial-of-treatment claims was stated

in Youngberg. After a hearing, the court denied the motion. There is no transcript or substitute

for a transcript of that hearing in the record. This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 Plaintiff contends the trial court erred in dismissing his complaint. Although

plaintiff alleged violations of multiple sections of the Illinois Constitution in his complaint, he

addresses only due process and his right against self-incrimination on appeal. Accordingly, we

address only those contentions. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (providing

“[p]oints not argued are forfeited and shall not be raised in the reply brief, in oral argument, or

on petition for rehearing”). Defendants argue plaintiff’s claims are barred by res judicata and

alternately failed to state a claim.

¶ 25 We first note defendants filed their written motion to dismiss under section

2-615(a) of the Code for failure to state a claim. However, the record is clear principles of

res judicata were discussed at the hearing on the motion, defendants followed up with a

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supplemental pleading supporting dismissal based on res judicata, and the trial court ultimately

dismissed the complaint in part based on res judicata.

¶ 26 A motion to dismiss under section 2-615(a) of the Code (735 ILCS 5/2-615(a)

(West 2020)) tests the legal sufficiency of the complaint, while a motion to dismiss under section

2-619(a) of the Code (735 ILCS 5/2-619(a) (West 2020)) admits the legal sufficiency of the

complaint but asserts affirmative matters outside of the complaint that defeats the cause of

action. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351 (2009). In particular, section 2-619(a)(4),

permits a defendant to seek dismissal based on res judicata. 735 ILCS 5/2-619(a)(4) (West

2020). Thus, ultimately the trial court’s dismissal was based on both sections 2-615 and 2-619.

Plaintiff does not show he objected to any potential irregularity in that procedure or the lack of a

written section 2-619 motion, nor does he raise any such issues on appeal. Thus, any potential

issues regarding the procedure under which his case was dismissed are forfeited. See Blair v.

Bartelmay, 151 Ill. App. 3d 17, 19 (1986)

¶ 27 When reviewing a decision to grant a section 2-615 motion to dismiss, “the

question is ‘whether the allegations of the complaint, when construed in the light most favorable

to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted.’ ”

Green v. Rogers, 234 Ill. 2d 478, 491 (2009) (quoting Vitro v. Mihelcic, 209 Ill. 2d 76, 81

(2004)). “A cause of action should not be dismissed under section 2-615 unless it is clearly

apparent that no set of facts can be proved that would entitle the plaintiff to recovery.” Id. at 491.

Our review is de novo. Id. We also review de novo a dismissal under section 2-619(a)(4) based

on res judicata. Morris B. Chapman & Associates v. Kitzman, 193 Ill. 2d 560, 565 (2000); Kiefer

v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 489 (2009).

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¶ 28 The doctrine of res judicata provides a final judgment on the merits bars any

subsequent action between the same parties or their privies based on the same cause of action.

Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). Res judicata applies to all matters

that were actually decided in the original action and to all issues that could have been decided.

Cooney v. Rossiter, 2012 IL 113227, ¶ 18. The requirements of res judicata are: (1) a final

judgment on the merits entered by a court of competent jurisdiction; (2) an identity of the cause

of action between the two suits; and (3) identical parties or their privies. Downing v. Chicago

Transit Authority, 162 Ill. 2d 70, 73-74 (1994).

¶ 29 A cause of action consists of a single group of facts giving the plaintiff a right to

seek redress for a wrongful act or omission of the defendant. Pierog v. H.F. Karl Contractors,

Inc., 39 Ill. App. 3d 1057, 1060-61 (1976). Although a single group of operative facts may give

rise to the assertion of more than one kind of relief or more than one theory of recovery,

assertions of different kinds or theories of relief arising out of a single group of operative facts

constitute a single cause of action. Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill.

App. 3d 59, 64 (1979). Identity of the causes of action may be determined from the record as

well as from the pleadings in both causes. Pierog, 39 Ill. App. 3d at 1061.

¶ 30 Here, to the extent plaintiff claims a due process violation regarding his

placement in the Power to Change group as opposed to sex-offender treatment specific to his

diagnosed condition and claims violations of his right against self-incrimination, we agree those

claims are clearly barred by res judicata. The record shows plaintiff has raised the same claims

repeatedly, and the court in Caraway, which included the same defendants and dismissed the

cause with prejudice, held as such. To the extent there were any differences in the allegations,

plaintiff could have raised the issues in Caraway.

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¶ 31 Plaintiff argues he made new allegations of further denial of treatment after

Caraway was decided, in that he was removed from the Power to Change group and he alleged

he continued to be denied sex-offender treatment and faced retaliation. We disagree for several

reasons.

¶ 32 First, plaintiff’s claim he was denied all treatment “as of July 6, 2020,” was

before Caraway was dismissed with prejudice, and defendant has not explained why he could

not have sought to amend his complaint in Caraway or file a motion to reconsider to include new

allegations. Lodge also remained dismissed without prejudice. Further, the record reflects the

trial court found the issues in plaintiff’s complaint were barred by res judicata based also on the

matters raised in case No. 20-L-3. The record shows the court considered the cases together, as

the parties referenced both cases on some pleadings, the court held the hearings on both cases on

the same day and referred to both cases in its order, and, according to online court records, the

cases were decided the same day. Also clear from the record is the parties discussed res judicata

and the effect of both Caraway and case No. 20-L-3 at the hearing. The court also clearly held

plaintiff’s complaint was barred by issues raised in both Caraway and case No. 20-L-3.

¶ 33 With the above points in mind, plaintiff has not provided a transcript of the

hearing or a substitute for a transcript to show the trial court’s res judicata determination based

on Caraway and case No. 20-L-3 was factually incorrect. He has also not shown he would have

been unable to raise his allegedly new claims in either Caraway, Lodge, or case No. 20-L-3. He

further has not shown that defendants aside from Lodge, who was named in case No. 20-L-3

were not in privity with her for that case to have preclusive effect regarding all defendants.

Throughout his lawsuits, plaintiff has switched names of employees of the health-care vendor as

parties while still making the same claims. He has not argued on appeal that those employees are

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not in privity with one another or provided a record to show whether or how such a matter was

raised in the trial court. See generally, Neuberg v. Michael Reese Hospital, 118 Ill. App. 3d 93,

100 (1983) (holding that the plaintiff’s attempt to name additional employee defendants to avoid

the applicability of the doctrine of res judicata was “without legal effect”). In the absence of a

complete record, we presume the trial court’s determinations of these issues and ultimate holding

concerning res judicata was correct.

¶ 34 Second, plaintiff has not shown he actually asserted a new claim. Although he

stated he was denied “all treatment” as of July 6, 2020, his claim has always been the same—he

has been denied “all treatment” because he cannot progress to sex-offender treatment specific to

his diagnosis without admitting to past misconduct. His overarching complaint is not a removal

from the Power to Change group. His filings make clear he does not consider that group

“treatment” and does not wish to be in that group. Plaintiff’s overriding issue has previously

been decided.

¶ 35 Indeed, in his motion to reconsider, plaintiff did not take issue with the trial

court’s findings of fact or determination of res judicata. Instead, citing Kingsley, he alleged the

court incorrectly applied the law to the facts. In doing so he specifically referenced case No.

20-L-3. But Kingsley is an excessive force case and does not apply. Instead, the Caraway court

correctly applied the standard from Youngberg. See Powers, 750 Fed. Appx. at 484.

¶ 36 Finally, defendant does not address the effect of case No. 20-L-3 on appeal and

instead argues Caraway is not binding on this court and was not a judgment on the merits. He

also notes Lodge reached a different result in a merit review. However, Caraway was dismissed

with prejudice on the merits and Lodge allowed the case to proceed but never reached a

judgment on the merits as it was dismissed without prejudice. It is also appropriate to consider a

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federal case such as Caraway when determining issues of res judicata. See generally, Cooney v.

Rossiter, 2012 IL 113227, ¶¶ 20-22, 26 (noting identity of cause of action between state and

federal court and application of res judicata). Further, as with the hearing on the motion to

dismiss, there is no transcript of the hearing on the motion to reconsider or a substitute for a

transcript. Thus, on this record, we cannot say the trial court erred when it determined

res judicata applied to bar plaintiff’s claims.

¶ 37 Plaintiff next argues the trial court erred in determining his denial of sex-offender

treatment did not violate the False Claims Act. Plaintiff also attached to his reply brief a copy of

a contract between the State of Illinois and a vendor, Liberty Healthcare. However, plaintiff was

required to attach the contract at the time he filed his petition or an affidavit stating facts

showing the instrument was not accessible to him. 735 ILCS 5/2-606 (West 2020). He did not do

so. Further, the contract does not identify defendants or show them as signatories to the contract.

Accordingly, the trial court correctly determined plaintiff failed to state a claim under the False

Claims Act.

¶ 38 III. CONCLUSION

¶ 39 The trial court did not err in determining res judicata barred plaintiff’s suit and

plaintiff did not state a claim under the False Claims Act. Accordingly, for the reasons stated, we

affirm the trial court’s judgment dismissing the complaint.

¶ 40 Affirmed.

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