                         NO. 4-10-0404         Opinion Filed 4/11/11

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

BRAD LIEBERMAN, JOHN LOY, and HAROLD   ) Appeal from
PENTER, Individually and on Behalf of ) Circuit Court of
Others Similarly Situated,             ) Schuyler County
          Plaintiffs-Appellants,       ) No. 09MR10
          v.                           )
LIBERTY HEALTHCARE CORPORATION, a      )
Pennsylvania Corporation; MARK BABULA, )
Psy.D.; DAVID BRILLHART, Ph.D; PAULA   )
LODGE, Ph.D.; CHAD OBERHAUSEN, Psy.D.; )
ABDI TINWALLA, M.D.; SHAN JUMPER,      )
Ph.D.; MICHAEL P. BEDNARZ, M.D.; DAVID )
SUIRE, Psy.D.; ROBERT BRUCKER, JR.,    )
Psy.D.; JACQUELINE BUCK, Ph.D.; and    ) Honorable
Does 1 Through 20 Inclusive,           ) Scott J. Butler,
          Defendants-Appellees.        ) Judge Presiding.
_________________________________________________________________

           JUSTICE POPE delivered the judgment of the court, with
opinion.
          Justices Turner and Appleton concurred in the judgment
and opinion.

                              OPINION

           In July 2009, plaintiffs, Brad Lieberman, John Loy, and

Harold Penter filed a class-action complaint against defendants,

Liberty Healthcare Corporation, Mark Babula, David Brillhart,

Paula Lodge, Chad Oberhausen, Abdi Tinwalla, Shan Jumper (Liberty

defendants), Michael P. Bednarz, M.D., David Suire, Robert

Brucker, Jr., Jacqueline Buck, and Does 1 through 20 (State

defendants), requesting monetary damages.     Plaintiffs had

previously been adjudicated sexually violent persons (SVP)

pursuant to the Sexually Violent Persons Commitment Act (Act)

(725 ILCS 207/1 through 99 (West 2008)) and committed to the

Department of Human Services (DHS).     Plaintiffs’ complaint
alleged defendants committed professional malpractice by

diagnosing plaintiffs with paraphilia not otherwise specified,

sexually attracted to nonconsenting persons (paraphilia NOS,

nonconsent).

            In April 2010, the trial court dismissed plaintiffs’

complaint with prejudice under section 2-619(a)(4) of the Code of

Civil Procedure (Civil Code) (735 ILCS 5/2-619(a)(4) (West 2008))

on the ground it was collaterally estopped by each of their prior

civil-commitment trial findings.

            Plaintiffs appeal, arguing the trial court erred in

dismissing their complaint on the basis of collateral estoppel

where (1) the alleged malpractice did not occur until after

plaintiffs’ initial commitment trials ended, (2) the posttrial

diagnoses and validations are separate and distinct conduct from

the acts of those who diagnosed plaintiffs with the same disorder

before their trials, and (3) those prior trials did not litigate

the propriety of diagnoses and validations that had not yet

occurred.    We affirm as modified and remand with directions.

                            I. BACKGROUND

                          A. The Plaintiffs

            An examination of the histories of each plaintiffs’

individual case is helpful in examining the ultimate issue in

plaintiffs’ instant appeal.

                          1. Brad Lieberman

            In 1980, a jury found Brad Lieberman guilty of six

counts of rape.    Later that year, Lieberman was found guilty of


                                - 2 -
rape and attempted rape.    The trial court sentenced Lieberman to

a number of concurrent prison terms, the longest of which

required him to serve 40 years’ imprisonment.     See In re

Detention of Lieberman, 379 Ill. App. 3d 585, 586, 884 N.E.2d

160, 164 (2007).

          In February 2006, Lieberman was adjudicated a sexually

violent person and committed to the Illinois Department of Human

Services (DHS).    Lieberman, 379 Ill. App. 3d at 586, 884 N.E.2d

at 164.   The commitment petition alleged Lieberman suffered from

mental disorders, which made it probable that he would commit

future acts of sexual violence.     Lieberman, 379 Ill. App. 3d at

586, 884 N.E.2d at 164.    At hearing, a doctor testified

diagnosing defendant with paraphilia NOS, nonconsent.       Lieberman,

379 Ill. App. 3d at 588, 884 N.E.2d at 166.     Lieberman appealed,

arguing, inter alia, the State’s experts’ opinions and diagnoses

did not meet the diagnostic criteria of the Diagnostic and

Statistical Manual of Mental Disorders (DSM) and they relied

solely on his past crimes to diagnose him.      Lieberman, 379 Ill.

App. 3d at 602, 884 N.E.2d at 177.      The appellate court affirmed.

Both the Illinois and United States Supreme Courts denied his

petition for leave to appeal.     In re Detention of Lieberman, 229

Ill. 2d 623, 897 N.E.2d 252 (2008); Lieberman v. Illinois, ___

U.S. ___, 129 S. Ct. 2050 (2009).

          In July 2008, Lieberman filed a petition for discharge

in conjunction with his annual disposition hearing.     See In re

Detention of Lieberman, 401 Ill. App. 3d 903, 905, 929 N.E.2d


                                - 3 -
616, 618 (2010).    The trial court dismissed the petition, finding

no probable cause existed to show Lieberman was no longer a

sexually violent person.     Lieberman, 401 Ill. App. 3d at 920, 929

N.E.2d at 629.    Lieberman appealed, arguing again that paraphilia

NOS, nonconsent, is not a valid disorder because it is not found

within the DSM.    Lieberman, 401 Ill. App. 3d at 922, 929 N.E.2d

at 630-31.    In May 2010, the appellate court affirmed the

dismissal of the petition for discharge.    In September 2010, the

supreme court vacated the appellate court’s judgment and remanded

the case to the appellate court for reconsideration in light of

its decision in In re Detention of Hardin, 238 Ill. 2d 33, 932

N.E.2d 1016 (2010) (clarifying the evidentiary standard for

probable cause).    See In re Detention of Lieberman, 237 Ill. 2d

557 (2010).    It appears the cause is currently pending in the

First District Appellate Court.

                           2. John Loy

          In 1982, John Loy was convicted of rape and sentenced

to 30 years’ imprisonment.    In August 2005, the Knox County

circuit court adjudicated Loy a sexually violent person and

committed him to DHS.    In re Detention of Loy, No. 01-MR-03 (Cir.

Ct. Knox Co.).    The State’s petition alleged Loy suffered from

paraphilia NOS, nonconsent.    The State’s supplemental appendix

shows that in February 2009, Loy filed a petition for discharge,

arguing the nonexistence of paraphilia NOS, nonconsent, as a

valid diagnosis.    The trial court dismissed Loy’s petition.   From

the information contained in the State’s supplemental appendix it


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does not appear Loy has appealed the trial court’s dismissal of

his petition for discharge.

          In December 2009, Loy filed a motion for a new trial,

which the trial court denied in April 2010.     In May 2010, Loy

filed a notice of appeal from the trial court’s April 30, 2010,

denial of his motion for a new trial and the initial August 2005

SVP finding.   It appears Loy’s appeal from the court’s denial of

his motion for a new trial is currently pending in the Third

District Appellate Court, No. 3-10-0366.

                         3. Harold Penter

          In June 1999, Harold Penter pleaded guilty to

aggravated criminal sexual abuse and the trial court sentenced

him to 10 years’ imprisonment.    In April 2006, the State filed a

petition to involuntarily commit Penter under the Act.     In July

2009, Penter was adjudicated a sexually violent person and

committed to DHS.   Both parties state an appeal involving Penter

is currently pending in the Fifth District Appellate Court, No.

5-10-0233.   However, the faxed copy of the docket sheet contained

in the record is incomplete as it appears to be missing a page.

That missing page appears to be included in the State’s

supplemental appendix but is illegible.

                     B. Plaintiffs’ Complaint

          In July 2009, plaintiffs filed an eight-count

complaint, alleging defendants committed medical malpractice by

negligently diagnosing and/or validating a disorder (paraphilia

NOS, nonconsent) that does not exist in the DSM and improperly


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based their diagnoses solely on past criminal behavior.      Each

count alleges the following with respect to proximate cause and

damages:

                  "As a direct and proximate result of one

           or more of the foregoing careless and

           negligent acts or omissions of [defendants],

           Plaintiffs suffered severe and permanent

           damage in that they have been involuntarily

           and unjustly detained, sometimes for years,

           at the [detention facility]; deprived of the

           comforts, companionship, and affection

           attendant to living as free men with their

           families; and lost various gains and earnings

           they would otherwise have acquired but for

           their detention on the bases of a

           misdiagnosed and/or improperly validated

           paraphilia non-consent disorder."

Plaintiffs have maintained the action does not challenge whether

plaintiffs should be detained, nor does it seek their release

from detention.    Instead, they emphasize this is a civil action

that seeks to financially compensate plaintiffs for harm caused

them by the defendants’ professional malpractice.     If plaintiffs

prevail, their sole relief would be the monetary value of the

time they have spent, and may continue spending, in detention on

the basis of an allegedly nonexistent and improperly diagnosed

mental disorder.    Plaintiffs’ complaint also requested damages


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"including but not limited to lost income and other earnings,

loss of consortium, loss of society, and pain and suffering."

                 C. Defendants’ Motion To Dismiss

           In September and October 2009, the State and Liberty

defendants moved to dismiss plaintiffs’ complaint under sections

2-615 and 2-619 of the Civil Code.     Defendants argued, inter

alia, (1) collateral estoppel barred plaintiffs from relitigating

whether they have been unjustly detained or suffered damages, (2)

there was no physician-patient relationship with plaintiffs

because they never consented to being evaluated, diagnosed, or

treated, (3) their negligence could not be the proximate cause of

plaintiffs’ injury because of the valid judgment of commitment,

and (4) the complaint did not comply with the section 2-622(a)

affidavit and report requirements.     Defendants also argued (1)

they were immune from suit under statutory and common law and

sovereign immunity and (2) the "Heck rule" supported their

collateral-estoppel argument and should be adopted as Illinois

law.   See Heck v. Humphrey, 512 U.S. 477 (1994) (finding 42

U.S.C. §1983 plaintiffs may not recover damages for unlawful

detention prior to a favorable termination of the judgment

authorizing the detention).

              D. Plaintiffs’ Response to Defendant’s
                         Motion To Dismiss

           Plaintiffs argued collateral estoppel did not apply to

this case because (1) the issue of whether any physician involved

with the plaintiffs’ civil commitment negligently committed

professional malpractice was neither litigated nor decided at the

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plaintiffs’ commitment trials, and (2) the issue of whether the

DSM ever recognized paraphilia NOS, nonconsent, as a legitimate

diagnosis was neither litigated nor decided during their

commitments trials.   Plaintiffs conceded all three plaintiffs

assumed during their commitment trials the disorder existed in

the DSM, as the State evaluators said it did.   Plaintiffs argued

that while they have litigated in fact whether the disorder

satisfied the diagnostic criteria of the DSM, the question of its

existence in the DSM is different.

                      E. Trial Court’s Ruling

          Following an April 30, 2010, hearing, the trial court

granted defendants’ motions to dismiss plaintiffs’ complaint with

prejudice.   The court found the issue of whether plaintiffs have

a mental disorder and are substantially probable to engage in

acts of sexual violence was already litigated in each plaintiff’s

commitment trial.   Specifically, the trial court found the

following:

                "Plaintiffs are seeking damages solely

          due to their detention for lost income and

          other earnings, loss of consortium, loss of

          society, and pain and suffering.

                Under Section 2-619 of the [Civil Code,]

          the defendants are seeking dismissal with

          prejudice of the complaint based on the

          doctrine of collateral estoppel.   The

          Illinois Supreme Court recently explained


                               - 8 -
collateral estoppel in People v. Hopkins,

[235 Ill. 2d 453, 922 N.E.2d 1042 (2009),] as

a doctrine that’s applicable when a party

participates in two different consecutive

causes of action and some controlling

question has been adjudicated against that

party by a court of competent jurisdiction.

     The Court finds that the plaintiffs have

participated in a prior case which arises on

a different cause of action, and in that I’m

referring to, specifically, to the SVP case.

And the Court finds that there is a

controlling question material to the outcome

of that prior case that has already been

adjudicated against the plaintiffs.   And I’m

referring to the question of whether or not

the plaintiffs have been properly diagnosed

as suffering from a mental disorder that

makes it substantially probable that the

plaintiffs will engage in acts of sexual

violence.

     The fact that certain evidence or

certain arguments, even though important

evidence or important arguments, could have

been made during the SVP case does not affect

the collateral estoppel analysis that the


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          Court’s going through in this proceeding.

               Therefore, the Court’s going to grant

          the defendant’s [sic] Motion to Dismiss with

          prejudice on the basis of collateral

          estoppel."

          This appeal followed.

                          II. ANALYSIS

          On appeal, plaintiffs argue the trial court erred in

ruling plaintiffs’ claim was collaterally estopped by plaintiffs’

prior civil commitment judgments.   Specifically, plaintiffs

contend collateral estoppel is not proper because (1) the

malpractice alleged--i.e., the negligent diagnoses and/or

validation of paraphilia NOS, nonconsent--did not occur until

after plaintiffs’ initial commitment trials ended, (2) the

posttrial diagnoses and validations are separate and distinct

conduct from the acts of those who diagnosed the plaintiffs with

that same disorder before their trials, and (3) those prior

trials did not litigate the propriety of diagnoses and

validations that had not yet occurred.

          Defendants argue (1) the trial court properly applied

collateral estoppel to dismiss plaintiffs’ complaint, (2)

plaintiffs’ malpractice claim relitigates issues of law and fact

already decided in their respective SVP cases, (3) plaintiffs’

continued commitments are interconnected with the judgments

authorizing commitment, and (4) plaintiffs are litigating

identical issues in parallel proceedings.


                             - 10 -
          In the alterative, defendants request we adopt the rule

announced in Heck, 512 U.S. 486-87, and remand the case to the

trial court with directions to dismiss the complaint without

prejudice.   Defendants maintain under the Heck rule, each

plaintiff's cause of action could move forward if his commitment

is invalidated.

                       A. Standard of Review

          The standard of review of a section 2-615 or 2-619

dismissal order is de novo.   Neppl v. Murphy, 316 Ill. App. 3d

581, 583-84, 736 N.E.2d 1174, 1178 (2000).     The applicability of

the collateral-estoppel doctrine is a purely legal question,

which is also subject to de novo review.     People v. Sutherland,

223 Ill. 2d 187, 197, 860 N.E.2d 178, 192 (2006).

                      B. Collateral Estoppel

          Collateral estoppel, commonly known as issue

preclusion, precludes a party from relitigating an issue already

decided in a prior proceeding.   Herzog v. Lexington Township, 167

Ill. 2d 288, 294, 657 N.E.2d 926, 929 (1995).    The doctrine

applies where

          "(1) the issue decided in the prior

          adjudication is identical with the one

          presented in the suit in question, (2) there

          was a final judgment on the merits in the

          prior adjudication, and (3) the party against

          whom estoppel is asserted was a party *** to

          the prior adjudication."     Gumma v. White, 216


                              - 11 -
           Ill. 2d 23, 38, 833 N.E.2d 834, 843 (2005).

           Here, the issue in the instant case, whether paraphilia

NOS, nonconsent, is a qualifying condition for commitment, was

also at issue in each commitment case.   We are unpersuaded by

plaintiffs’ attempt to argue the issues in the trial court are

too attenuated to be precluded from consideration in the instant

case.   Plaintiffs contend that while they have litigated whether

the disorder satisfied the diagnostic criteria of the DSM, the

question of its existence in the DSM is different.   However,

plaintiffs could have, and likely should have, raised that

specific issue before the trial court.   They did not.   We note

plaintiffs are free to file a petition for discharge or a writ of

habeas corpus based on the argument they are being illegally held

on an invalid nonexistent diagnosis.

           Further, plaintiffs are clearly the same parties as in

the prior commitment cases and the trial courts in each case made

a final judgment on the merits.   For purposes of applying the

doctrine of collateral estoppel, however, a judgment is not final

until the potential for appellate review has been exhausted.

Hopkins, 235 Ill. 2d. at 469, 922 N.E.2d at 1050-51 (citing In re

A.W., 231 Ill. 2d 92, 100, 896 N.E.2d 316, 321 (2008)).    The

trial court predicated its ruling on plaintiffs’ initial

commitment adjudications.   As a result, a determination of

whether plaintiffs’ initial commitment rulings were appealed, and

if so, whether the appellate process has been exhausted, is

essential to the proper resolution of the collateral-estoppel


                              - 12 -
issue.

          We note that while the trial court found collateral

estoppel applied, it did so based upon the arguments and

information presented to it.   However, the record does not show

plaintiffs raised the issue of the nonfinality of their judgments

in the trial court to argue against collateral estoppel.   With

the exception of Lieberman, whose appellate review of the initial

commitment case has been exhausted by virtue of the supreme

court’s denial of his petition for leave to appeal, the record is

unclear as to the other two plaintiffs.

          For example, while it appears Loy filed a 2009 motion

for a new trial, it is unclear whether he took a timely direct

appeal from the 2005 ruling.   Further, in July 2009, Penter was

adjudicated an SVP and committed to DHS.   In May 2010, the trial

court denied his motion for a new trial.   While both parties

state an appeal involving Penter is currently pending in the

Fifth District Appellate Court, the record is inadequate to make

this determination.   The faxed copy of Penter’s docket sheet

contained in the record is incomplete, and the missing page

contained in the State’s supplemental appendix is illegible.

          This lack of clarity regarding the finality of

plaintiffs’ judgments notwithstanding, a trial court’s order

dismissing a case may be affirmed on any reason in the record,

regardless of whether the court relied upon such ground.   See

Wright v. City of Danville, 174 Ill. 2d 391, 399, 675 N.E.2d 110,

115 (1996).


                               - 13 -
                          C. The Heck Rule

          In their motion to dismiss below, and again before this

court in response to plaintiffs’ arguments on appeal, defendants

request we adopt the Heck rule and remand the case to the trial

court with directions to dismiss the complaint without prejudice.

Defendants maintain under the Heck rule, plaintiffs’ cause of

action could move forward once they were no longer committed.

          In Heck, the United States Supreme Court established

that a section 1983 (42 U.S.C. §1983 (1994)) claim calling into

question the lawfulness of a plaintiff’s conviction or

confinement is not cognizable until the conviction or confinement

has been invalidated.    Heck, 512 U.S. at 483.    In Heck, the

plaintiff was convicted in state court of voluntary manslaughter,

which he appealed.    Heck, 512 U.S. at 478-79.    Thereafter, the

plaintiff filed a pro se section 1983 claim in United States

District Court against the prosecutors and a police investigator

alleging an unlawful investigation led to his arrest and the

defendants knowingly destroyed exculpatory evidence.      Heck, 512

U.S. at 479.    The plaintiff sought, inter alia, compensatory and

punitive damages but did not seek injunctive relief or release

from custody.    Heck, 519 U.S. at 479.   The district court

dismissed the complaint with prejudice because it raised issues

directly implicating the legality of the plaintiff’s confinement.

Heck, 512 U.S. at 479.   The plaintiff appealed.    While his appeal

was pending, the state supreme court affirmed his conviction and


                               - 14 -
sentence on direct appeal.    Heck, 519 U.S. at 479.    The Seventh

Circuit affirmed the district court’s dismissal of the

plaintiff’s 1983 claim, finding the action challenged the

legality of his conviction.    Heck, 519 U.S. at 479-80.    The

United States Supreme Court affirmed and held the following:

           "[I]n order to recover damages for *** harm

           caused by actions whose unlawfulness would

           render a conviction or sentence invalid, a

           §1983 plaintiff must prove that the

           conviction or sentence has been reversed on

           direct appeal, expunged by executive order,

           declared invalid by a state tribunal

           authorized to make such determination, or

           called into question by a federal court's

           issuance of a writ of habeas corpus,

           [citation]."   Heck, 512 U.S. at 486-87.

           A section 1983 "claim for damages bearing that

relationship to a conviction or sentence that has not been so

invalidated is not cognizable." (Emphasis omitted.)      Heck, 512

U.S. at 487.   A court must dismiss a section 1983 claim if a

judgment in the plaintiff's favor "would necessarily imply the

invalidity of his conviction or sentence."    Heck, 512 U.S. at

487.   The Heck rule avoids parallel litigation--specifically, a

collateral attack on an otherwise unchallenged judgment--and

precludes the possibility of a successful tort action that would

contravene strong judicial policy against the creation of two


                               - 15 -
conflicting resolutions.     Heck, 512 U.S. at 487.   Plaintiffs

argue Heck does not apply to suits brought by civil detainees.

We disagree.    "Heck applies to SVPA detainees with access to

habeas relief."     Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140

(9th Cir. 2005); see also Hubbs v. Alamao, 360 F. Supp. 2d 1073,

1080 (C.D. Cal. 2005) (finding Heck barred the plaintiff’s claim

the evaluating psychologist committed medical malpractice when

she relied on false information to recommend SVP commitment where

the allegations implied the invalidity of his lawful commitment).

Here, each plaintiff is confined by virtue of his SVP

adjudication.   In addition, each has the ability to file a writ

of habeas corpus.

          Further, an action under section 1983 is similar to the

common-law tort of malicious prosecution, which requires the

plaintiff to prove the "termination of the prior criminal

proceeding in favor of the accused."     Heck, 512 U.S. at 484.

While not yet formally adopted in Illinois to apply to civil

cases, Heck is not incompatible with such application.     For

example, the Indiana Court of Appeals, applying Heck, found a

defendant was not entitled to damages for false imprisonment

where his conviction had not been overturned.    See Scruggs v.

Allen County/City of Fort Wayne, 829 N.E.2d 1049, 1051 (Ind. Ct.

App. 2005).    Further, in Yount v. Sacramento, 183 P.3d 471 (Cal.

2008), the California Supreme Court stated, although Heck is a

rule of federal law applying to federal causes of actions

challenging the validity of state convictions, it could not think


                                - 16 -
of a reason to distinguish between a section 1983 and a tort

claim.   Yount, 183 P.3d at 484 (pointing out the similarities

between a section 1983 claim and a tort action).   We find nothing

preventing the application of the Heck rule to the facts of this

case.

           While this appears to be a case of first impression in

Illinois, we find additional guidance from the treatment of

legal-malpractice cases within the state.   In Illinois, legal-

malpractice claims are already treated in a manner consistent

with Heck.   See Paulsen v. Cochran, 356 Ill. App. 3d 354, 358-59,

826 N.E.2d 526, 530 (2005) (First District finding a defendant

must show his conviction had been favorably terminated before he

can maintain a malpractice claim against his former attorney);

see also Kramer v. Dirksen, 296 Ill. App. 3d 819, 821, 695 N.E.2d

1288, 1290 (1998) (First District finding a plaintiff must prove

his innocence before he may recover for his criminal defense

attorney’s malpractice (citing Levine v. Kling, 123 F.3d 580, 582

(7th Cir. 1997))).   Similarly, the Fifth District Appellate

Court, comprised of panel members from this court, has previously

held a legal-malpractice cause of action does not accrue until

the plaintiff’s conviction is overturned.   See Griffin v.

Goldenhersh, 323 Ill. App. 3d 398, 406, 752 N.E.2d 1232, 1240

(2001) (and the cases cited therein).

           In this case, plaintiffs are attempting to collaterally

attack their lawful confinement by alleging medical malpractice

in their SVP diagnoses without challenging their underlying


                              - 17 -
confinement.   Clearly, a successful claim would be inconsistent

with their lawful commitments.    The adoption of the Heck scheme

here avoids the inconsistent effect of awarding money damages for

unlawful detention to lawfully confined plaintiffs.    Such a

result is also consistent with a long-standing judicial policy of

avoiding conflicting judgments.    While plaintiffs maintain any

award would not necessarily imply the invalidity of their

continued confinement, "[i]t is irrelevant that [the plaintiff]

disclaims any intention of challenging his conviction; if he

makes allegations that are inconsistent with the convictions

having been valid, Heck kicks in and bars his civil suit."      Okoro

v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003).

           Here, no matter how you color it, plaintiffs appear to

be asking for a declaration that their commitments were wrongly

decided.   Plaintiffs’ success in this action would implicitly

question the validity of their commitment proceedings.    Moreover,

we can reasonably foresee a scenario not long down the road

wherein any monetary award would in turn be used by plaintiffs to

buttress a claim they were wrongfully committed in the first

place.   However, plaintiffs cannot use their malpractice

complaint as a vehicle for mounting a collateral, or indirect,

attack on commitment determinations that have not been reversed.

See Heck, 512 U.S. at 486.   Instead, the better way to proceed is

to directly appeal from the denial of a petition for discharge or

to file a writ of habeas corpus.    Only after the favorable

termination of plaintiffs’ confinements may they pursue their


                              - 18 -
claim for money damages.   Accordingly, while we affirm the

judgment of the trial court, the dismissal should be without

prejudice.

                           III. CONCLUSION

          For the reasons stated, we affirm the trial court's

judgment as modified and remand with directions to enter a

dismissal without prejudice.

          Affirmed as modified; cause remanded with directions.




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