Jerry L. Gates v. GREG SCOTT and ERIC KUNKEL

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 25, 2024*
Decided July 2, 2024
Before
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-2231
JERRY L. GATES,
Plaintiff-Appellant,
v.
GREG SCOTT and ERIC KUNKEL,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 20-4044
Jonathan E. Hawley,
Magistrate Judge.
O R D E R
Jerry Gates, a civil detainee at Rushville Treatment and Detention Facility,
appeals from a judgment entered on a jury verdict for the defendants on his claim that
they violated his First Amendment rights by denying him access to the internet and
computer classes. On appeal Gates takes issue with the district court’s decisions
allowing him to be referred to as a “sexually violent person” at trial and barring his
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 5 --

No. 23-2231 Page 2
evidence that state prisoners receive greater access to technology than Rushville
detainees. But because the court did not abuse its discretion, we affirm.
Since 2000, Gates has been civilly committed to Rushville under the Illinois
Sexually Violent Persons Commitment Act, which allows for detention of a “sexually
violent person” until the person is no longer considered sexually violent. 725 ILCS
207/1; 207/40(a). The Act defines “sexually violent person” to include a person who, like
Gates, has been convicted of a sexually violent offense and suffers from a mental
disorder that makes further acts of sexual violence “substantially probable.” 725 ILCS
207/5(f). In addition to treatment, Rushville offers detainees vocational training,
including classes teaching basic computer skills.
The facility also imposes certain restrictions on detainees: Most pertinently, it
forbids internet access with very few exceptions and does not allow detainees to have
internet-capable personal devices. To communicate with those outside the facility,
detainees must use mail, telephone, or receive in-person visits from approved visitors
during approved visiting hours. To keep informed, detainees generally may watch
television and listen to radio.
In 2020, Gates sued officials at Rushville and the Illinois Department of Human
Services, which oversees the facility, alleging that the internet restriction violates his
First Amendment rights. He asserted that the policy unduly hinders his ability to
communicate with people outside the facility and limits his “educational access to
computers, tablets, and other items that may be needed for his treatment and release in
the future.” Because Gates was proceeding in forma pauperis, the district court screened
his complaint, see 28 U.S.C. § 1915(e)(2), and dismissed the Department officials but
allowed the claims against the Rushville officials to proceed.
During discovery, Gates produced evidence that Illinois prisoners—even those
convicted of sexual violence—enjoy greater access to technology than Rushville
detainees, enabled by software that allows the Department of Corrections to monitor
prisoners’ activity. Gates then moved for summary judgment, arguing that this
discrepancy proved that Rushville’s policies were unreasonably restrictive of speech
and that he should be entitled to possess an internet-capable tablet. The district court
denied the motion, explaining that the defendants had offered evidence that they had
“a legitimate security interest in limiting a resident’s ability to access the internet given
the nature of each resident’s confinement and the potential for misuse.” See generally
Turner v. Safley, 482 U.S. 78, 89 (1987); Brown v. Phillips, 801 F.3d 849, 853–54 (7th Cir.

-- 2 of 5 --

No. 23-2231 Page 3
2015). Gates, the court added, had not shown that the restrictions were “exaggerated,
unreasonable, or unrelated to those ends.”
After denying Gates’s motion, the court set a date for trial, and the parties
consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). The
defendants filed motions in limine arguing that the court should exclude evidence of
the Department of Corrections’ technology policies. Those policies, the defendants
argued, were not relevant to Gates’s claims against the administrators of Rushville—a
facility operated by a different agency—and were likely to confuse the jury. The
magistrate judge held a final pretrial conference at which he granted the defendants’
motions to exclude the evidence, explaining that the question for the jury was not
whether the difference between the prison and Rushville policies was justified, but
whether the restrictions at Rushville were constitutional: “And at the end of the day, if
you’re in the IDOC and their conditions were way worse than what they are here, that
wouldn’t matter. And it doesn’t matter that they’re, you know, way better
because … the comparison is not the question for the jury.”
Because the defendants planned to argue that Rushville’s policies were justified
by the reasons for residents’ detention, the magistrate judge informed Gates that the
jury would likely learn that he was a “sexually violent person.” The magistrate judge
then explained, and the defendants agreed, that the jury would not learn the details of
Gates’s offense. Gates indicated that he understood, and he did not object.
At trial, Gates testified that he had a television and radio in his room but noted
that the restrictions on communications made it difficult for him to keep in touch with
his family. Another detainee testified that residents occasionally lose access to such
electronics for disciplinary reasons. The defendants called current and former Rushville
administrators, who testified that the restrictions were in place to prevent residents
from contacting their victims and victims’ families—something residents had done in
the past. The protections also served the general public because they prevented sexually
violent persons from finding new victims.
Rushville’s former director added that internet access could impair the facility’s
treatment efforts: Because the facility could not feasibly monitor residents’
communications, residents could gain access to sexually explicit materials without the
knowledge of staff members.1 On cross-examination, the magistrate judge permitted
1 The witness further stated that monitoring the communications of civil
detainees is prohibited by law, but nothing in the record provides a source for that

-- 3 of 5 --

No. 23-2231 Page 4
Gates to question whether the former director was aware of “tattletale” software, that is,
software used at prisons to monitor inmates’ internet activity and alert officials to
prohibited conduct. The director was not aware of such software but, on re-direct,
reiterated that Rushville could not monitor “communications.” After deliberating, the
jury returned a verdict for the defendants, and the district court entered judgment
against Gates.
Gates raises two arguments on appeal. First, he argues that characterizing him at
trial as a sexually violent person prejudiced him in the eyes of the jury. But his failure to
object before trial, when he received notice that the jury would hear the grounds for his
detention, or even at trial, forecloses our review. In civil cases, we generally will not
entertain arguments raised for the first time on appeal. Henry v. Hulett, 969 F.3d 769, 786
(7th Cir. 2020) (en banc). And Gates does not argue, much less show, that exceptional
circumstances warrant disregarding that principle here. See id.
Gates’s second argument—that the district court erred in excluding his evidence
of technology use within the Department of Corrections—fares no better. We review a
decision to exclude evidence for an abuse of discretion. Chi. Joe’s Tea Room, LLC v. Village
of Broadview, 94 F.4th 588, 596 (7th Cir. 2024). Under Federal Rules of Evidence 401 and
402, evidence is relevant if it tends to make a material fact more or less probable. The
lawfulness of a state restriction on a civil detainee’s First Amendment rights is assessed
under the factors that the Supreme Court articulated in Turner. See Brown, 801 F.3d
at 853. Therefore, Gates’s evidence is relevant if it bears on those factors. As applied
here, the factors include: (1) whether Rushville’s restrictions were rationally related to a
legitimate government interest; (2) whether alternative means were available for Gates
to exercise his First Amendment rights; (3) how internet access would affect Rushville’s
ability to achieve its desired ends; and (4) whether Rushville had “ready alternatives” it
could employ to achieve its interests. See Turner, 482 U.S. at 89–91. Here, the magistrate
judge reasonably concluded that conditions in other types of facilities, run by another
state agency, were not relevant to Gates’s claim: Conditions in state prisons did not tend
to make it more or less probable that Rushville’s internet restrictions, which were
undisputedly imposed for reasons specific to sexually violent offenders, were rationally
purported restriction. And we note that IDHS regulations state that, apart from attorney
communications, a resident’s mail, telephone, and in-person communications “may be
reasonably restricted, censored, screened or monitored to protect the resident or others
from harm, harassment or intimidation or to ensure implementation of the resident’s
[treatment plan].” I LL. A DMIN . C ODE 59 § 299.330(e) (emphasis added).

-- 4 of 5 --

No. 23-2231 Page 5
related to those reasons. And though the evidence might be pertinent to whether there
were less restrictive ways to curtail internet misuse at Rushville, no evidence
contradicts the director’s testimony that residents’ internet access would impair
Rushville’s core mission and that Rushville could not feasibly monitor residents’
communication. (We do not rely on the suggestion that it cannot lawfully do so.)
The magistrate judge’s alternative rationale was also sound. He concluded that
even if the evidence were relevant, the probative value would be outweighed by the
potential to confuse the jury. See F ED. R. EVID. 403. We give “special deference” to a
district court’s balancing under Rule 403. Artis v. Santos, 95 F.4th 518, 528 (7th Cir. 2024).
Juror confusion—between prisoners and sexually violent detainees, or between the
Department of Human Services and the Department of Corrections and their separate
missions, for example—was plainly possible, and crafting an appropriate limiting
instruction (which Gates did not suggest) would likely be unworkable. See Thompson v.
City of Chicago, 472 F.3d 444, 457 (7th Cir. 2006). Moreover, even though the court would
not admit the prison policy, Gates was still able to inquire before the jury about the
monitoring of internet usage in prisons, so he was not deprived of his point altogether.
AFFIRMED

-- 5 of 5 --