Friday, November 8, 2019

Federal Complaint in Case No. 19-cv-7413, Jennifer Coleman v. Mark Roberson and Syed Hussain


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

                                                                        )
JENNIFER COLEMAN,                                )
                                                                        )
                                    Plaintiff,                      )
                                                                        )
            v.                                                         )            Case No.
                                                                        )
MARK ROBERSON, individually, and         )
SYED HUSSAIN, individually,                     )            JURY DEMAND
                                                                        )
                        Defendants.                             )


COMPLAINT FOR DAMAGES
WITH REQUEST FOR TRIAL BY JURY



            NOW COMES the Plaintiff, Jennifer Coleman, by and through her attorneys, the Law Offices of Kretchmar and Cecala, P.C., with her complaint against the above-named Defendants and requests trial by jury, and in support of her Complaint states as follows.
I.               INTRODUCTION
This is an action brought by Jennifer Coleman, a person previously confined in the custody of the Illinois Department of Human Services (“State”) at Elgin Mental Health Center (“Facility” or “Elgin”), to vindicate profound deprivations of her constitutional rights caused by institutionally based brutality.
II.   JURISDICTION AND VENUE
            1.            This action arises under the Constitution and laws of the United States, including Article III, Section 1 of the U.S. Constitution, and it is brought pursuant to 42 U.S.C. §§ 1983 and 1988.  The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343 and 2201.
            2.            This case is instituted in the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. §1391, as the judicial district in which all relevant events and omissions occurred and in which Defendants maintain offices and/or reside.
III.   PARTIES
            3.            At all times relevant hereto, Plaintiff Jennifer Coleman was a resident of the State of Illinois and a legal resident of the United States of America.
4.            At all times relevant hereto, Defendant Mark Roberson (“Roberson”) was a resident of the State of Illinois and a citizen of the United States, and was acting under color of state law in his capacity as an officer employed by Illinois Department of Human Services.  Roberson is sued individually for actions and omissions taken under color law while working as an employee of Elgin Mental Health Center and/or the Illinois Department of Human Services.
5.            At all times relevant hereto, Defendant Syed Hussain (“Hussain”) was a resident of the State of Illinois and a citizen of the United States, and was acting under color of state law in his capacity as an officer employed by Illinois Department of Human Services.  Hussain is sued individually for actions and omissions taken under color law while working as an employee of Elgin Mental Health Center and/or the Illinois Department of Human Services.

IV.  BACKGROUND FACTUAL SUMMARY AND GENERAL ALLEGATIONS:
SEXUAL ABUSE OF A DISABLED PERSON, DENIAL OF DUE PROCESS

6.            Plaintiff was adjudicated not guilty by reason of insanity (“NGRI”) in the Circuit Court of Kane County, for a criminal charge of Aggravated Battery in  2013.  She was committed to the custody of the State for inpatient mental health treatment at Elgin in May 15, 2013.
7.            Plaintiff was originally assigned to be housed and to receive treatment on clinical Unit H at Elgin.  She was subsequently transferred to the clinical Unit at William White Cottage in May, 2013.  The Defendant Mark Roberson was a Security Therapy Aid (STA) at White Cottage, and the Defendant Syed Hussain became the psychiatrist and treatment team leader on that clinical unit several years later.
8.            On January 10, 2019, Plaintiff was granted conditional release from Elgin to live at Bryn Mawr Care, a residential psychiatric rehabilitation facility in Chicago.  She remains there at the time of this filing.
9.            Throughout the six years of Plaintiff’s involuntary custody at Elgin, she was told, first by others and then most explicitly by Defendant Hussain, and/or she was implicitly led to believe, that her only hope of release lay in agreeing with and fully believing everything the staff said and thought about her, whether they specified formal psychiatric diagnoses in writing or prescribed drugs which might seem to have different benefits and risks than she was told to expect, whether they documented her behavior accurately or inaccurately, or even when they merely voiced informal and casual opinions about her personality.  Full faith in and agreement with staff, as the trained mental health professionals in charge of her treatment, and full submission to their slightest direction, was called “insight” into her mental illness.  In the absence of sufficient “insight” the Plaintiff could never be recommended by Elgin to the Court for release from custody at Elgin.
10.            On or about October 18, 2018, Defendant Roberson attempted to seduce the Plaintiff during a card game in a private booth on the clinical unit, first with conversation about what a “ladies’ man” he was, to imply that the Plaintiff would enjoy having a romantic or sexual relationship with him.  During card games that they played almost every night in November, 2018, Defendant Roberson showed Plaintiff his tattoos, and told her she had to hide her developing feelings for him, because other staff would notice if she “wore her feelings on her sleeve.”
11.            During October-December 2018, several staff frequently joked around or teased the Plaintiff and/or Defendant Roberson about how they spent so much time together, asking, e.g., “What’s going on with you two?”
12.            By December, 2018, Defendant Roberson was frequently coming to Plaintiff’s room on White cottage and engaging in explicitly sexual kissing and touching activity with her.  This occurred in full view of Plaintiff’s roommate, whom (along with the Plaintiff) Roberson threatened and sternly warned not to tell anyone.
13.            Plaintiff attempted to discourage the sexual relationship, telling Defendant Roberson to “forget it” as early as December 2, 2018.  However he was relentlessly seductive, calling her frequently from his cell at the patient phone on the unit, and he began to recite various “loving” intentions and promises, to help her improve her life situation when she would be released from Elgin.
14.            Plaintiff was expecting an upcoming court decision for her conditional release, and was unwilling to endanger a favorable ruling by angering a staff member or making what would become mere he-said-she-said accusations in the lopsided, “staff-is-always-right/mental-patient-is-always-wrong” venue of Elgin.
15.            Plaintiff was in no position and had no ability to give or withhold “consent” to any sexual activity or relationship with Defendant Roberson.  She was an involuntary psychiatric patient, a disabled person, relentlessly schooled by Defendant Hussain, the captain of her treatment team who dictated what her custodial program would be, that she must obey and defer to staff judgment in all matters concerning herself, including her own emotions and her own mind.  Hussain repeatedly told Plaintiff that her explanations of incidents or untrue staff reports were irrelevant, because she was a mental patient and only staff would be believed..
16.            Despite the Plaintiff’s reticence, Defendant Roberson continued his attempts during December 2018, and promised Plaintiff he would help her earn a degree when she got out of Elgin, he would find an apartment for her, and he would live with her and even marry her once he qualified for his retirement pension.  He discussed buying her an engagement ring, saying she would however have to keep it hidden.  These promises were combined with the implicit and omnipresent threat, always in the background: Defendant Roberson could easily insert reports into her psychiatric chart, which would have been entirely false but nevertheless believed, saying that she had been the one who tried to seduce him and characterizing her alleged behavior as symptomatic of such mental illness as should rule out her release.  Thus coerced, the sexual “relationship” continued.
17.            After Plaintiff was conditionally released on January 10, 2019, Defendant Roberson contacted her at Bryn Mawr Care by cell phone, as he had previously arranged with her to do.  On numerous occasions in January or early February he picked her up in his car and took her either (at first) to a hotel in Chicago or (later) to his apartment in Elgin.  Plaintiff wanted to have conversations and discuss the promises he had made and future plans with him, but Roberson repeatedly showed her that he was only interested in drinking and sex.  Plaintiff complied with his demands in part because he became very angry when he was drunk, and she was alternately afraid of him or felt sympathy for him.  On one occasion, Defendant had to call Plaintiff’s case worker Alex at Brynn Mawr Care to tell him she would be late coming back, and she had to have the hotel call a taxi for her to return to her residence because he was too drunk to drive, after he had already driven his car onto a snow bank.
18.            On or about February 8, 2019, Plaintiff finally managed to call off the relationship with Roberson.  She has not seen him again in person since then.
19.            On or about July 19, 2019, Defendant Roberson contacted the Plaintiff by phone and told her that someone had reported their earlier sexual and personal contacts to the Office of the Inspector General, and that he could be in trouble or even fired.  He clearly hoped that she would protect him from an expected or ongoing investigation.  He did not inform her that he was the only one in trouble (i.e., she was not), because under Illinois law, any sexual contact at all between institutional mental health staff and an involuntary patient constitutes a felony for which the staff can be prosecuted, and that no issue of the patient’s “consent” is even allowed. 
20.            During the phone conversation in July, 2019, Defendant Roberson told the Plaintiff to lie to police about their relationship.
V.  CLAIMS FOR RELIEF
1.) Sexual abuse of a disabled person, false imprisonment/illegal seizure/deprivation of liberty, denial of due process of law: violations under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the Constitution of the United States

21.            Plaintiff hereby incorporates Paragraphs 6-20, as if set forth here in their entirety.
22.            In 2013, Plaintiff was “hospitalized” as an involuntary psychiatric inpatient after a verdict of Not Guilty by Reason of Insanity pursuant to 730 ILCS 5/5-2-4.  She was evaluated as being in need of mental health services on an inpatient basis and placed in a secure setting at Elgin Mental Health Center.  Such involuntary “hospitalization” is legal only because its purposes do not include retribution, punishment, or deterrence.  An NGRI verdict is an acquittal of criminal culpability, and an acquittee may only be involuntarily hospitalized for treatment of an existing condition of mental illness.  Under the Constitution of the United States, she may not be hospitalized involuntarily in the absence of such condition, or in the absence of the possibility of “adequate and humane care and treatment” [405 ILCS 5/1-101.2] for such condition, regardless of previous criminal acts (however heinous), and regardless of any theoretical danger she may pose to herself or others.
23.            Even as a pretrial detainee is presumed innocent, and elaborate procedural rights are meant to guarantee her fair trial, a forensic psychiatric inpatient is not a criminal, and elaborate policy protections are meant to guarantee her treatment for the condition of mental illness.  In both circumstances, the point is to restrain human passion and flawed reaction in the name of reason and justice.  Our law demands criminal procedure for pretrial detainees, not lynchings; and it also demands medical treatment for NGRI acquittees, not psychiatric slavery.  Mental health treatment is inextricable from due process of law for the continuing confinement of any forensic psychiatric patient.  Abuse and neglect effectively sabotage mental health treatment.  Pursuant to 405 ILCS 5/2-112, “Every recipient of services in a mental health… facility shall be free from abuse and neglect.”  “Abuse” is defined under 405 ILCS 5/1-101.1 as “…any physical injury, sexual abuse, or mental injury inflicted on a recipient of services other than by accidental means.”
24.            Plaintiff was denied due process of law precisely because the Defendants abused her, and violated crucial policies, rules and criminal laws, thereby effectively eliminating all possibility of ameliorative treatment for her condition of mental illness and rendering her continued confinement, from the time of said violations, as a non-medical, abusive, and unconstitutional deprivation of liberty, false imprisonment and/or illegal seizure of plaintiff’s person.  Specifically:
            a. Defendant Roberson seduced or coerced the Plaintiff into a sexual             relationship while he was an employee of the state institution to which she was involuntarily committed, when she was legally incapable of consent and under his control.  This was a violation of 720 ILCS 5/11-9.2(a)(2) and 720 ILCS 5/11-9.5, a Class 3 felony.
            b. Defendant Roberson threatened both the Plaintiff and Plaintiff’s roommate with retribution, by saying any report they might make about his sexual abuse of the Plaintiff would only be said to be a symptom of their mental illness and justify longer involuntary hospitalization.  This was intimidation, a Class 3 felony under 720 ILCS 5/12-6(a)(2), and an attempt and/or conspiracy to violate 59 Ill. Adm. Code §50.20.
            c. Defendant Hussain actively supported Defendant Roberson’s original and continuing opportunity to sexually abuse the Plaintiff, by carefully grooming and schooling the Plaintiff with the idea that mental health professionals are always right and are believed, whilst mental patients are always wrong and are not believed.  Defendant was denied all opportunity to be heard, and called a liar or troublemaker by Defendant Hussain on several occasions when she complained about staff behavior or any abuse of power.  Defendant Hussain made it clear that if Plaintiff wanted to be conditionally released, she should restrain herself from complaining             about staff.  This was intimidation, a Class 3 felony under 720 ILCS 5/12-6(a)(2), and an attempt and/or conspiracy to violate 59 Ill. Adm. Code §50.20.

            25.            Relevant portions of 42 U.S.C. § 1983 provide that:
            Every person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia subjects or causes to be to the deprivation of any rights, privileges or immunities secured by the constitution and law shall be liable to the party injured in an action at law, suit in equity, or other appropriate proceeding for redress . . .


            26.            Plaintiff at all times referred to in this action was and is a citizen of the United States and all of the individual Defendants to this claim are persons for purposes of 42 U.S.C. § 1983.
            27.            All individual Defendants to this claim, at all times relevant hereto, were acting under the color of state law in their capacity as employees of the State of Illinois, and their acts and/or omissions were conducted under the cover of their official duties or employment.
            28.            At all times complained of herein, Plaintiff had clearly established constitutional rights under the Fourth and Fourteenth Amendments to bodily integrity and to be free from false imprisonment, illegal seizure of her person, and deprivation of liberty by employees of the State in the absence of due process of law and/or in violation of those policies and laws which specifically or impliedly justify and facilitate involuntary inpatient mental health treatment.
            29.            Any reasonable person knew or should have known of these rights at the time of the complained of conduct as they were clearly established at that time.
            30.              The actions, deceptions and threats by Defendants Roberson and Hussain, as described herein, were also malicious and/or involved reckless, callous, and deliberate indifference to Plaintiff's federally protected rights.  The failure to protect the Plaintiff’s constitutional rights, and the use of illegal seizure, false imprisonment, intimidation and sexual misconduct which amounted to active subversion and sabotage by the Defendants, and each of them, of that due process of law (treatment) to which the Plaintiff was entitled, violated the Fourth and Fourteenth Amendment rights of the Plaintiff.
            31.            Neither Defendant ever took reasonable steps to protect Plaintiff from the objectively unreasonable and conscience shocking sexual abuse by Defendant Roberson or the false imprisonment, deprivation of liberty, and intimidation, despite being in a position to do so.  The Defendants are each therefore liable for the injuries and damages resulting from the objectively unreasonable and conscience shocking sexual abuse and other constitutional violations caused by the other Defendant.
            32.            Defendants engaged in the conduct described by this Complaint willfully, maliciously, in bad faith, and in reckless disregard of Plaintiff's federally protected constitutional rights.
            33.            Defendants engaged in the conduct described by this Complaint with shocking and willful indifference to Plaintiff's rights, in full conscious awareness that they would cause Plaintiff severe physical and emotional injuries.
            34.            The actions of the Defendants, and each of them, in the context and
circumstances where the Plaintiff represented no threat of harm to herself, other patients or staff, violated the contemporary standards of decency.  At no time was sexual abuse, deception or intimidation justified by any medical or mental health philosophy or the Plaintiff’s needs; but it was, entirely, misconduct and violation by the Defendants, and each of them, of the Plaintiff’s constitutional rights as outlined herein.
            35.            The Defendants, and each of them, conducted a malicious and sadistic
use of sexual abuse, deception and intimidation to cause harm to the Plaintiff by forcing her to submit to false imprisonment, unreasonable seizure of her person and deprivation of liberty which constituted an unlawful constitutional violation and a stripping away of her dignity and humanity.  The Plaintiff’s future freedom and wellbeing were completely controlled by the Defendants, whose actions violated contemporary standards of decency, regardless of whether or not significant physical injury is evident.  The Defendants used sexual abuse, deception and intimidation in a willful, wanton and unnecessary fashion, as there was no need for sex at any time or under any circumstance during the Plaintiff’s confinement, nor was any deception or intimidation appropriate for a trained, responsible staff member in the mental health profession.
            36.            The Defendants’ sexual abuse, deception and intimidation exceeded any reasonable policy or practice.  The use of sexual abuse, and the deception and intimidation of the Plaintiff resulted in the false imprisonment, seizure of the Plaintiff’s person, and deprivation of liberty by confinement under an utterly false guise of mental health treatment, and it is sufficiently repugnant as to shock the conscience of mankind.
            37.            The acts or omissions of both Defendants were the direct and proximate causes behind Plaintiff's injuries.
            38.            The Defendants acted in concert and joint action with each other.
            39.            The acts or omissions of Defendants as described herein intentionally deprived Plaintiff of her constitutional rights and caused her other damages.
            40.            The Defendants are not entitled to qualified immunity for the complained of conduct.
            41.            As a proximate result of Defendants' unlawful conduct, Plaintiff has suffered actual physical and emotional injuries, and other damages and losses as described herein entitling her to compensatory and special damages, in amounts in excess of the jurisdictional limit.
            42.            On information and belief, Plaintiff may suffer lost abilities to recover and may further suffer physical and emotional pain from ongoing and continued loss of society through the sexual abuse outlined herein.
            43.            Plaintiff is further entitled to attorneys' fees and costs pursuant to 42 U.S.C. §1988, pre-judgment interest and costs as allowable by federal law.
            44.            In addition to compensatory, economic and consequential damages, Plaintiff is entitled to punitive damages against each of the Defendants under 42 U.S.C. § 1983, in that the actions of each of Defendant have been taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of the Plaintiff.
2.) Sexual abuse of a disabled person, battery, excessive force, denial of due process of law: violations under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the Constitution of the United States
45.            Plaintiff hereby incorporates all other paragraphs of this complaint, as if set forth here in their entirety.
            46.            Relevant portions of 42 U.S.C. § 1983 provide that:
Every person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the constitution and law shall be liable to the party injured in an action at law, suit in equity, or other appropriate proceeding for redress . . .


            47.            Plaintiff at all times referred to in this action was and is a citizen of the United States and the Defendants to this claim are persons for purposes of 42 U.S.C. § 1983.
            48.            The Defendants to this claim, at all times relevant hereto, were acting under the color of state law in their capacity as employees of the State of Illinois, and their acts and/or omissions were conducted under the cover of their official duties or employment.
            49.            At all times complained of herein, Plaintiff had a clearly established constitutional right under the Fourth and Fourteenth Amendments to bodily integrity and to be free from excessive force, assault, battery, and sexual assault by the staff of the State and to due process of law before any force or battery might be used against her.
            50.            At all times complained of herein, Plaintiff had a clearly established constitutional right under the Fourth and Fourteenth Amendments to bodily integrity and to be free from sexual abuse, intimidation and psychological manipulation, by the Defendants and other unknown employees of the State.
            51.            Any reasonable person knew or should have known of these rights at the time of the complained of conduct as they were clearly established at that time.
            52.            The actions, deceptions, intimidation and effective enslavement as well as the use of force by Defendant Roberson, as described herein, were also malicious and/or involved reckless, callous, and deliberate indifference to Plaintiff's federally protected rights.  The failure to protect the Plaintiff’s constitutional rights, and the use of unlawful excessive force, assault, battery, and sexual misconduct as well as the active sabotage of such due process of law (mental treatment) to which Plaintiff was constitutionally entitled, by the Defendants, and each of them, violated the Fourth and Fourteenth Amendment rights of Plaintiff.
            53.            The force used constituted excessive force, assault, battery, and sexual abuse which could have caused and did cause serious injury to the Plaintiff.
            54.            Neither of the Defendants took reasonable steps to protect Plaintiff from the objectively unreasonable and conscience shocking excessive force, assault, battery, and sexual abuse by Defendant Roberson despite being in a position to do so. The Defendants are each therefore liable for the injuries and damages resulting from the objectively unreasonable and conscience shocking force and other constitutional violations caused by each other Defendant.
            55.            Defendants engaged in the conduct described by this Complaint willfully, maliciously, in bad faith, and in reckless disregard of Plaintiff's federally protected constitutional rights.
            56.            Defendants engaged in the conduct described by this Complaint with shocking and willful indifference to Plaintiff's rights, in full conscious awareness that they would cause Plaintiff severe physical and emotional injuries.
            57.            The actions of the Defendants, and each of them, in the context and
circumstances where the Plaintiff represented no threat of harm to herself, other patients or staff, violated contemporary standards of decency.  At no time was such “treatment” justified by any medical or mental health philosophy, by the Plaintiff’s needs, or by policies and considerations of security, but was, entirely, misconduct by the Defendants, and each of them, in violation of Plaintiff’s Constituional Rights as outlined herein.
            58.            The Defendants, and each of them, conducted a malicious and sadistic
use of force to cause harm to the Plaintiff by forcing her to submit to excessive force, assault, battery, and sexual abuse which constituted an unlawful bodily touching and stripping away her dignity and humanity by submitting to Defendant Roberson, who controlled the Plaintiff’s freedom and wellbeing.  Such actions violate contemporary standards of decency, regardless of whether or not significant physical injury is evident.  The Defendants used force in a willful, wanton and unnecessary fashion, as there was no need for sex at any time or under any circumstance during the Plaintiff’s confinement, nor was any force, assault, battery, and/or sexual activity appropriate for a trained, responsible staff member in the mental health profession.
            59.            The Defendants’ excessive force, assault, battery, and sexual abuse exceeded any reasonable use of force as no force was required whatsoever.  The use of force involving the sexual battery and enslavement of the Plaintiff constitutes sexual assault, battery, and excessive force under the guise of treatment. Such a use of force is so repugnant as to shock the conscience of mankind.
            60.            The acts or omissions of both Defendants were the direct and
proximate causes behind Plaintiff's injuries.
            61.            The Defendants acted in concert and joint action with each other.
            62.            The acts or omissions of Defendants as described herein intentionally deprived Plaintiff of her constitutional rights and caused her other damages.
            63.            The Defendants are not entitled to qualified immunity for the complained of conduct.
            64.            As a proximate result of Defendants' unlawful conduct, Plaintiff has suffered actual physical and emotional injuries, and other damages and losses as described herein entitling her to compensatory and special damages, in amounts in excess of the jurisdictional limit.
            65.            On information and belief, Plaintiff may suffer lost abilities to recover and may further suffer physical and emotional pain from ongoing and continued loss of society through the sexual abuses outlined herein.
            66.            Plaintiff is further entitled to attorneys' fees and costs pursuant to 42 U.S.C. §1988, pre-judgment interest and costs as allowable by federal law.
            67.            In addition to compensatory, economic and consequential damages, Plaintiff is entitled to punitive damages against each of the Defendants under 42 U.S.C. § 1983, in that the actions of each Defendant have been taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of Plaintiff.

VI. PRAYER FOR RELIEF

            Plaintiff prays that this Court enter judgment for the Plaintiff and against each of the Defendants and grant:
A.   compensatory and consequential damages, including damages for emotional distress, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial and in excess of the jurisdictional limit;

B.    economic losses on all claims allowed by law;

C.    punitive damages on all claims allowed by law against Defendants and in an amount to be determined at trial and in excess of the jurisdictional limit;

D.   attorneys’ fees and costs associated with this action under 42 U.S.C. § 1988, including expert witness fees, on all claims allowed by law;

E.    pre- and post-judgment interest at the lawful rate;

F.    Court-ordered equitable and injunctive relief from all contact or communication by the Defendants, including any further sexual advances, assaults or seductive communication from the Defendants; and

G.   Any further relief that this Court deems just and proper, and any other appropriate relief at law and equity.


PLAINTIFF REQUESTS A TRIAL BY JURY.


                                                Respectfully submitted,

                                                __/s/ S. Randolph Kretchmar______________
                                                S. Randolph Kretchmar
                                                One of the Attorneys for the Plaintiff


The Law Offices of Kretchmar & Cecala, P.C.
1170 Michigan Avenue, Wilmette, IL 60091
847-370-5410