In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1801
MICHAEL HUGHES,
Plaintiff‐Appellant,
v.
MICHAEL FARRIS and KRISTA WILCOXEN,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 15‐3038 — Harold A. Baker, Judge.
____________________
SUBMITTED OCTOBER 29, 2015* — DECIDED DECEMBER 7, 2015
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
WOOD, Chief Judge. Michael Hughes alleges that an em‐
ployee of the facility where he is civilly committed abused
* The defendants were not served with process in the district court
and are not participating in this appeal. After examining the appellant’s
brief and the record, we have concluded that the case is appropriate for
summary disposition. See FED. R. APP. P. 34(a)(2).
2 No. 15‐1801
him because he is a homosexual; another employee sus‐
pended his treatment for complaining about it. He is con‐
fined at the Treatment and Detention Facility in Rushville,
Illinois, as a result of his designation as a sexually violent
person for purposes of Illinois’s Sexually Violent Persons
Commitment Act, 725 ILCS 207/1–99. Invoking 42 U.S.C.
§ 1983, Hughes sued Michael Farris, the supervisor of the
laundry, and Krista Wilcoxen, Rushville’s rehabilitation di‐
rector. After interviewing Hughes at a “merit‐review” hear‐
ing and screening his complaint under 28 U.S.C. § 1915(e)(2),
the district court concluded that he had failed to state a claim
and dismissed the case. We vacate that judgment and re‐
mand.
Without vouching for anything, we recount the allega‐
tions in Hughes’s complaint and, where consistent with the
complaint, in his related filings. See Flying J Inc. v. City of
New Haven, 549 F.3d 538, 542 n.1 (7th Cir. 2008). Hughes was
first abused in 2014, when Farris began supervising Rush‐
ville’s laundry room. Hughes had been receiving vocational
training in the laundry room as part of his treatment. Farris
berated Hughes with an onslaught of homophobic epithets,
including “sissy, faggot, bitch, whore, slut, and any other
degrading female or homosexual insult one can imagine.”
Farris also “encourage[d] other residents to take reprisals
against Plaintiff because he is gay.” He urged them “to Ram
broom and/or Mop Handles in the Plaintiff[́́s] rectum … be‐
cause he likes it so much.” Hughes lived in constant fear of
violent attack.
Hughes’s troubles with Farris came to a head in January
2015. Farris ordered Hughes to “Take Charge” of the laun‐
dry room and “Tell these fuckers what they need to be [do‐
No. 15‐1801 3
ing].” Hughes hesitated, reminding Farris that, under his
own treatment plan and the rules of Rushville, he was pro‐
hibited from asserting authority over fellow detainees. He
attempted to show Farris the resident handbook, which con‐
tained the rule that Farris was telling Hughes to violate. In
response, Farris ordered him to leave the laundry.
When Hughes complained about Farris to Wilcoxen, his
situation worsened. Hughes told Wilcoxen that Farris was
abusing and threatening him for being gay. But Wilcoxen’s
practice, Hughes asserts, is to ignore complaints about Far‐
ris’s conduct and “terminat[e] anyone that has a negative en‐
counter” with Farris. Considering herself “sue proof,” Wil‐
coxen suspended Hughes from vocational training, in the
laundry or elsewhere, for three months, to punish him for
protesting Farris’s abuse. Vocational training, Hughes ex‐
plains, is part of the treatment that he must complete to be
eligible for conditional release. By suspending him from that
training, Wilcoxen kept him from “fully participat[ing] in the
treatment he was sent to this facility for.”
The district judge held a brief telephonic merit‐review
hearing and dismissed the complaint. (We have previously
discussed the proper and improper use of these hearings.
See Henderson v. Wilcoxen, 802 F.3d 930 (7th Cir. 2015); Wil‐
liams v. Wahner, 731 F.3d 731 (7th Cir. 2013).) The judge asked
Hughes if his “main complaint” was that he had been laid
off from his job at the laundry. Hughes replied, “No, sir.
That’s not my main complaint. That is a result, or what trig‐
gered me to actually file the complaint.” When the judge
asked him what constitutional provision he believed the de‐
fendants had violated, Hughes answered that he was “sex‐
ually harassed” and “punished” for refusing to violate “our
4 No. 15‐1801
own rules.” The court ended the hearing, noting that it “did
not see any constitutional violation in this.” It then dis‐
missed Hughes’s complaint for failure to state a claim. He
failed to state a due process claim, the court reasoned, be‐
cause prisoners do not have a protectable interest in prison
jobs, and the court found no equal protection violation.
These rulings caused the court to count the dismissal as a
“strike” under 28 U.S.C. § 1915(g). It entered judgment un‐
der Federal Rule of Civil Procedure 58 the same day.
Hughes appealed and moved to proceed in forma pau‐
peris. In his motion, he elaborated his complaint’s allegations.
He also said that at the merit‐review hearing he felt
“rushed,” “stressed,” and “confuse[d],” explaining that he
“thought of all kinds of things to say only moments after the
phone call had ended.” The district court granted Hughes’s
motion to proceed IFP. It observed that Hughes’s new filing
“more clearly states his intended claims and it appears he
has adequately alleged a violation of his constitutional
rights.” The court advised Hughes that if he asked the court
to reconsider its dismissal, the court would “certify that it
would grant the motion upon remand from the court of ap‐
peals.” As Hughes explains in his appeal brief, he declined
the district court’s offer because he thought that a district
court lacks jurisdiction over a case once an appeal has been
filed.
On appeal Hughes argues that the district court erred in
dismissing his case. We agree with Hughes that the case
must be remanded, but we make two preliminary observa‐
tions. First, the district court properly attempted to revive
the case when, in granting Hughes’s motion to appeal IFP, it
invited him to move for reconsideration of its dismissal. Dis‐
No. 15‐1801 5
trict courts generally lack jurisdiction over a case on appeal.
Ameritech Corp. v. Int’l Bhd. of Elec. Workers, Local 21, 543 F.3d
414, 418 (7th Cir. 2008). But the court correctly alluded to its
limited authority to state that it would be inclined to grant a
motion under Federal Rule of Civil Procedure 60(b), if
Hughes chose to file such a motion. See FED. R. CIV. P. 62.1;
Cir. R. 57; Ameritech, 543 F.3d at 418–19; Boyko v. Anderson,
185 F.3d 672, 675–76 (7th Cir. 1999). Courts should grant non‐
fee‐paying plaintiffs, such as Hughes, the same opportunity
to amend a dismissed complaint as fee‐paying plaintiffs re‐
ceive. See Luevano v. Wal‐Mart Stores, Inc., 722 F.3d 1014,
1023–25 (7th Cir. 2013). Hughes says that at his merit‐review
hearing he felt rushed and confused; afterwards he had
more to add, and he elaborated his thoughts in his IFP mo‐
tion. A chance to amend after the merit‐review hearing
would have solved that problem and potentially avoided
this appeal.
On the merits, we conclude that Hughes has stated a
claim against Farris under the Fourteenth Amendment. Civ‐
illy committed detainees are entitled to “protection against
cruel and inhumane treatment” under the Due Process
Clause that is “at least as extensive as that afforded to pris‐
oners by the Eighth Amendment.” Sain v. Wood, 512 F.3d 886,
893 (7th Cir. 2008). Threats of grave violence can constitute
cruel and unusual punishment under the Eighth Amend‐
ment. Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443, 445 (7th Cir.
2009). And in Beal v. Foster, 803 F.3d 356, 357–58 (7th Cir.
2015), we recently held that verbal abuse by guards can be
cruel and unusual punishment. That case involved, among
other things, calling an inmate “derisive terms” like “punk,
fag, sissy, and queer,” thereby “increas[ing] the likelihood of
sexual assaults on him.” Id. at 358. Hughes’s nearly identical
6 No. 15‐1801
allegations thus state a claim for a violation of his due pro‐
cess rights under the Fourteenth Amendment. They also
state a claim under the Equal Protection Clause of that
amendment. The Equal Protection Clause protects against
both “sexual harassment by a state actor under color of state
law,” Locke v. Haessig, 788 F.3d 662, 667 (7th Cir. 2015), and
discrimination on the basis of sexual orientation, see Baskin
v. Brogan, 766 F.3d 648, 654–55 (7th Cir. 2014); Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 950–51 (7th Cir. 2002). Both
allegedly occurred here.
We also conclude that Hughes may proceed with his
claims against Wilcoxen. He asserts that Wilcoxen retaliated
against him in response to his complaints about Farris’s al‐
leged anti‐gay abuse. This suffices to describe another viola‐
tion of his equal‐protection rights. See Locke, 788 F.3d at 669–
71 (explaining that parole supervisor violates equal protec‐
tion by retaliating against parolee for complaining about pa‐
role officer’s sexual harassment). Allegations of retaliation
for complaining about abuse support a claim under the First
Amendment. See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir.
2012). Finally, due process requires that those who are civilly
committed as sexually violent persons receive “some treat‐
ment,” as determined by mental‐health professionals exer‐
cising professional judgment. Lane v. Williams, 689 F.3d 879,
882 (7th Cir. 2012) (quoting Allison v. Snyder, 332 F.3d 1076,
1081 (7th Cir. 2003), internal quotation marks omitted).
Hughes says that his vocational training is part of his treat‐
ment and that Wilcoxen suspended that treatment in order
to shield Farris’s abuse and to punish Hughes for complain‐
ing about it. Those allegations, if proven, would show that
Wilcoxen’s suspension of Farris’s treatment was “a substan‐
tial departure from accepted professional judgment” in vio‐
No. 15‐1801 7
lation of the Due Process Clause. See id. at 882 (quoting
Youngberg v. Romeo, 457 U.S. 307, 323 (1982), internal quota‐
tion marks omitted).
We conclude with three final comments. First, we em‐
phasize again that at this stage we have only allegations; fur‐
ther proceedings are needed to determine their truth. Sec‐
ond, we recently specified that merit‐review hearings must
be transcribed or recorded, Henderson, 802 F.3d at 932–33,
and so we commend the district court for doing so here.
These hearings, nonetheless, may be conducted only for the
narrow purpose of enabling a pro se plaintiff to clarify and
amplify his complaint if it is confusing; the district judge
may not use the hearings to cross‐examine a plaintiff or elicit
admissions. Id. at 933. Third, because the district court’s dis‐
missal was in error, the record must be corrected to show
that Hughes did not incur a strike under the Prison Litiga‐
tion Reform Act, 28 U.S.C. § 1915(g). We have previously
noted in dicta that it is possible that the three‐strikes provi‐
sion does not apply to persons in Hughes’s position (sexual‐
ly violent detainees no longer serving a criminal sentence)
because they are not prisoners as defined in § 1915(h). Kali‐
nowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (collecting
cases where other circuits have held similarly);
see also Merryfield v. Jordan, 584 F.3d 923, 927 (10th Cir. 2009);
Michau v. Charleston Cnty., 434 F.3d 725, 727–28 (4th Cir.
2006). But because we vacate the district court’s decision on
the merits, we need not resolve this question.
The district court’s judgment dismissing the case is
VACATED and the case is REMANDED for further proceedings
consistent with this opinion.
Michael Hughes v. Michael Farris
Combined Opinion