Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 1 of 20 PageID #:46

F l L E D IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

APR 1 4 7.003 '\fllr

Antoinattc Davis, Carmen Feliciano, Teresa Quintello, Ann Francis Gclco, Helen K\lss, Flora Stewart, and Elena Meitzler, individually
and on behal r\lf a class,
Plaintiffs
vs.
MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, in his official capacity,
Defendant

MICHAI!I. W, OOIIINI

)

Cl.l!l'l""'• U.S. DISTRICT COURT

)

)

)

)

DOCKHHJ

)

)

APP J .5 7003

) No.03 C 1768

)

)

JUDGE: Blanche M. Manning

)

MAGISTRATE Judge Ashman

)

)

)

)

)

NOTICE OF FILING

PLEASE TAKE NOTICE that \ln April 14, 2003, I caused to be filed with !he Clerk of the United States District Court for the Northem District of Illinois, Eastem Division, the PLAINTIFFS' Amended Complaint

Dated this 14"' day of April, 2003.

Respectfully submitted,
';ODn:elY~f"PfuiInti-ffs- ' At~t~r- ney-\~ .

"fhomas G. Morrissey Ltd. 10249 S. Western Ave. Chicago, 11 60643 (773) 233-7900

Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 2 of 20 PageID #:47

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

Genise Hart, Carmen Feliciano, Ann Francis Gelco, Helen Koss Caprice Morales and Michelle Gandy, individually and and on behalf of a class,
Plaintiffs
vs.
MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, in his official capacity,
Defendant

No. 03 c 1768
JUDGE: James Zagel MAGISTRATE: Ashman

OOCKHE
;1 PF! J 5 ((J[

AMENDED COMPLAINT

Now comes the Plaintiffs, by and through their attorney,

Thomas G. Morrissey, Ltd., and Robert H. Farley, Jr. Ltd.,and

complain of the Defendant as follows:

INTRODUCTION

1.

The Plaintiffs in this case are currently or have

been pretrial detainees at the Cook County Department of

Corrections ("Jail"). As pretrial detainees at the Jail, the

plaintiffs are subjected to weekend lock downs which occur at

least once a month. During these lock downs, inmates are confined

to their cells starting a 1:30 p.m. on Friday afternoon and are

not released until late on Sunday afternoon.

2.

In this lawsuit, the plaintiffs are not challenging

the right of Jail officials to conduct random searches in the

1
~--r

Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 3 of 20 PageID #:48

living quarters of the Jail and to impose lock downs during

emergencies. The plaintiffs are challenging the reasonableness of

regular, scheduled lock downs which last up to fifty hours over

the weekends and are imposed in a harsh and abusive manner by the

Sheriff. These prolonged lock downs serve no justifiable

administrative purpose at the Jail and amount to punishment of

the pre-trial detainees.

3.

After a tier is searched during a lock down, the

inmates remain in their cells on lock down, despite the fact that

there is no valid reason for this restriction. Plaintiffs, as

representatives of a class are seeking injunctive and monetary

relief

JURISDICTION AND VENUE

4.

Jurisdiction is proper in this court pursuant to 28

u.S.C. Sect. 1331 and 2201, and pursuant to 42 U.S.C. Sect. 1983

and 1988.

5.

Venue is proper in this district pursuant to 28 u.s.c.

Sec. 1391 (b), as all the events giving rise to the claims

asserted occurred in Cook County.

CLASS ACTION ALLEGATIONS

6. (a) Plaintiffs bring this action as a class action

pursuant to Rule 23(b) (2) and 23(b) (3) of the Federal Rules of

Civil Procedure.

(b) The Class consist of the following two classes;

(i)

For injunctive relief under Rule 23(b) (2) the

class consist all pretrial female inmates at the Cook County

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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 4 of 20 PageID #:49

Department of Corrections who have exhausted their administrative

remedies and who have been and/or will in the future be

subjected to non-emergency, extended lock downs over a weekend at

the Jail.

(ii)

For relief under Rule 23 (b) (3) the class shall

consist of all former female pretrial inmates at the Cook County

Department of Corrections who had been subjected to non-

emergency, extended lock downs over a weekend at the Jail and who

were not incarcerated on March 11,2003. The class shall also

include those inmates who were incarcerated at the time of the

filing and who had exhausted their administrative remedies prior

to March 11,2003.

(c) The class is so numerous that joinder of all persons

is impracticable. The practice and policy at the Jail is to lock down the female divisions at the Jail. Plaintiffs believe that the class probably numbers well over 10,000 female inmates.
(d) There are questions of law and fact common to the class. These questions predominate over any questions affecting only individual Class members. These legal and factual questions include:
(i) Whether there are prolonged, weekend lock downs each month at the Jail in the female housing units;
(ii) The amount of time required to conduct a complete search of a tier in the female housing divisions;
(iii)Whether prolonged lock downs each month at the

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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 5 of 20 PageID #:50
Jail are related to a legitimate governmental interest; (iv) Whether the Sheriff has a duty during prolonged weekend lock downs, to protect inmates from harm from other inmates; (v) Whether the safety of female inmates ls endangered during the prolonged weekend lock downs; (vi)Whether during the prolonged weekend lock downs the plaintiffs are able to receive appropriate medical and/or psychological treatment to prevent serious medical injuries; (vii)Whether the defendant, as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.C. employees not to punish pretrial detainees by engaging in non-emergency, prolonged lock downs. (viii) Whether during the prolonged weekend lock downs the plaintiffs are denied access to pay telephones to contact their attorneys and/or to contact relatives for the purpose of posting the required bond to be released from custody; and (ix) Whether the prolonged weekend lock downs constitutes punishment of the plaintiffs; (e) Plaintiffs' claims are typical of the claims of the class. (f) Plaintiffs will fairly and adequately protect the
4

Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 6 of 20 PageID #:51
interest of all class members as they are members of the class and their claims are typical of the claims of all class members. Each of the plaintiffs is incensed at the treatment accorded the class members and will aggressively pursue the interests of the entire class. Plaintiffs' interest in obtaining injunctive and monetary relief for the violations of constitutional rights and privileges are consistent with and not antagonistic to those of any person within the class. Plaintiffs have retained counsel competent and experienced in complex class action litigation.
(g) This matter is brought as a class action pursuant to Rule 23(b) (2) of the Federal Rules of Civil Procedure because the party opposing the class has acted or refused to act on grounds generally applicable to the class, making appropriate final injunctive relief. The prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.
(h) Additionally, this matter is brought as a class action pursuant to Rule 23 (b) (3) of the Federal Rules of Civil Procedure, because a class action is superior to other available means for a fair and efficient adjudication of this controversy. The damages suffered by individual class members are small compared to the burden and expense of individual prosecution of the action to address defendant's unconstitutional conduct.
FACTS AND PARTIES
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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 7 of 20 PageID #:52

7.

Plaintiff Genise Hart is a citizen of the United

States and resident of the State of Illinois. During the period

from January 19, 2003, through February 24,2003, Ms. Hart was an

inmate in Division Four at the Cook County Department of

Corrections awaiting trial. While incarcerated, Ms. Hart was

subjected to a weekend lock down.

8.

Plaintiff Carmen Feliciano is a citizen of the United

States and resident of the State of Illinois. The Plaintiff

Feliciano has been an inmate at the Cook County Department of

Corrections on several occasions during the last two years and

has been subjected to numerous lock downs. She suffers from

bipolar disorder.

9.

Plaintiff Caprice A. Morales lS a citizen of the

United States and resident of the State of Illinois. The

Plaintiff Morales has been an inmate at the Cook County

Department of Corrections on several occasions during the last

two years and has been subjected to numerous lock downs while

waiting trial.

10. Plaintiff Ann Francis Gelco is a citizen of the United

States and resident of the State of Illinois. She has been an

inmate at the Cook County Department of Corrections on several

occaslons during the last two years and has been subjected to

numerous lock downs while waiting trial.

11. The Plaintiff Helen Koss is a pretrial detainee in

Division IV at the Jail. In fall of 2002, Ms. Kos filed a

grievance regarding the weekend lock downs at the Jail. She has

6

Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 8 of 20 PageID #:53

been incarcerated at the Jail slnce 2001 and has been subjected

to numerous monthly prolonged weekend lock downs.

12. The Plaintiff Michelle Gandy was a pretrial detainee

at the Jail in August of 2001. While a pretrial detainee, Ms.

Gandy was subjected to a prolonged weekend lock downs.

13.

Defendant MICHAEL SHEAHAN (Sheahan) is an elected

county official whose duties include implementing and executing

policies concerning the operation of the Cook County Jai.l (Jail)

pursuant to 55 ILCS 5/3-15003. At all times relevant hereto,

Sheahan was acting under color of law.

14.

At the Jail, female inmates are housed in Division

Four and Division Three. Division Four is separated into sixteen

separate units which are commonly called "tiers" at the Jail.

Division Three has only six separate units which are commonly

called "tiers" at the Jail. Each tier has an interlock area which

is staffed by a correctional officer and is the only means of

entering and departing the tier.

15.

Inside each tier, there is a common holding area,

which is called a day room, where inmates receive their meals,

have access to pay phones, a television, and can socialize with

other inmates in the tier. Each tier has shower stalls, which

are adjacent to the day room. The correctional officer is able

to monitor from the interlock all the inmates in the day room to

maintain security and protection for the inmates from fellow

inmates.

16. In Division three and Division Four, the cells have

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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 9 of 20 PageID #:54

solid steel door with a small opening, two bunk beds, a toilet

and a sink. Correctional officer can not maintain visual contact

with the inmates from the interlock once they are placed inside

the cells.

17.

Three or four times each month, teams of

approximately five to seven correctional officers enter the tiers

and conducts random searches called "shakes" of the cells and the

day room for contraband and other unauthorized items. It takes

these correctional officers anywhere from twenty to forty

minutes to "shake" a tier. During the "shakes", the inmates arc

normally outside the tier at recreation. In this lawsuit,

plaintiffs are not contesting the need to conduct periodic

"shakes" and emergency lock downs.

18. In addition to the random "shakes" of the tiers, all

pretrial detainees are subjected to weekend lock downs at least

once a month. During these lock downs, inmates are confined to

their cells starting at 1:30 p.m. on Friday afternoon and are not

released until late on Sunday afternoon. During the weekend lock-

down, each tier in the division is allegedly searched for

contraband in the same manner as the random "searches" and it

takes the correctional staff the same amount of time to conduct

these searches. After a tier is searched, the inmates remain in

their cells on lock down, despite the fact that there is no valid

reason for this restriction.

19.

During weekend lock downs, pretrial detainees are

subjected to harsh and cruel conditions which are more onerous

8

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than when inmates are placed in solitary confinement after

breaking a rule at the "Jail". During lock downs, the "Jail"

shirks its duty to protect inmates from harm from other inmates

by isolating them behind solid steel cell door with either two or

three other detainees. The conditions of the lock down are

"dungeon" like in that the Plaintiffs can rarely be seen or heard

by the correctional officers through the steel cell door. During

the lock down, the Plaintiffs are unable to communicate with

correctional officers when they are in need of immediate medical

or psychological treatment or in need of immediate protection

from their cell roommate.

20.

In contrast to solitary confinement where the

detainee is released from her cell for one hour a day to shower,

exercise, and have access to the telephone; during the weekend

lock down, the detainee is neither released from her cell nor

permitted to shower, exercise or have access to a phone to

communicate with their lawyer or family.

21. Plaintiff Koss, as representatives of a class seeking

only injunctive relief and the other plaintiffs, as

representatives of a class seeking relief under Rule 23 (b) (3),

are not challenging the need to conduct a lock down at the Jail

but rather maintain that the periodic weekend lock downs are

unreasonable because the lock downs are imposed ln a harsh and

abusi,ve manner by the Sheriff. The restrictions and condition"

of the lock down amount to punishment of the pre-trial detainees.

22. There are no administrative procedures available to the

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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 11 of 20 PageID #:56
plaintiffs at the Jail to challenge or change the formal policy of the Sheriff to conduct the weekend lock downs. Under the existing grievance procedure, there is no authority for any inmates to contest the weekend lock downs as evidenced by the fact that the Jail failed to act on Helen Kos's grievance in the fall of 2002 concerning the lock downs. Inmates are permitted to initiate some grievances at the Jail by handing grievances to the social worker assigned to the Division. The practice and policy at the Jail is for the social worker to initially review the grievances and throw away and not process those grievances which they deem unsuitable such as grievances which concern official policies at the Jail.
23. Upon information and belief, numerous female detainees in addition to Kos, have objected to and filed grievances concerning the weekend lock down practice to no avail.
24. The Plaintiff Genise Hart was a pretrial detainee ln Division Four during the January lock down, (January 24-26, 2003). During the lock down, plaintiff Hart suffered great emotional distress due to the aforementioned conditions exisU.ng during the lock down. Furthermore, the lock down constituted punishment.
25. The Plaintiff Carmen Feliciano ls a former inmate at the Cook County Jail.
26. Plaintiff Feliciano has been in the Jail on several times during weekend lock downs.
27. Due to her medical condition, the Plaintiff Feliciano
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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 12 of 20 PageID #:57
suffered extreme emotional and physical paln and anguish as the result of the weekend lock downs.
28. The Plaintiff Ann Francis Gelco is a former inmate at the Cook County Jail.
29. The Plaintiff Gelco has been in the Jail on several times during weekend lock downs.
30. During her incarceration in May, 2002, Plaintiff Gelco was an inmate at Division IV and she was pregnant. On May 31, 2002 the lock down started on a (Friday) at 1:30 p.m. and she was confined in a cell with two other inmates until June 2, 2002 (Sunday) . During this period, there was no light in the cell She had no access to the telephone to call her attorney or family members.
31. During this weekend lock down, Plaintiff Gelco was confined in a two person cell with three people. One of the cell mates was mentally ill, suicidal, violent and made repeated threats to the Plaintiff Gelco. The suicidal cell mate attempted to strangle herself during the lock down with her socks and the Plaintiff Gelco and the other cell mate screamed for help for approximately 30-45 minutes before any correctional officer responded. During this 30-45 minute time period, the Plaintiff Gelco attempted to stop the suicide and was struck in the jaw and injured in the process. When the correctional officers finally arrived, they removed the suicidal cell mate for approximately S hours and then returned that cell mate to the Plaintiffs Gelco's cell for the remainder of the lock down.
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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 13 of 20 PageID #:58

32. The Plaintiff Helen Koss is a pretrial detainee in

Division IV at the Jail. She has been incarcerated at the Jail

since 2001 and has been subjected to numerous monthly prolonged

weekend lock downs. Her grievance ln regards to lock downs was

denied by the defendant.

33. During a weekend lock down in April of 2002, plaintiff

Koss was attacked by her cell mate and was struck numerous times

which caused bruises and she had clumps of her hair pulled out of

her head. During this attack, Ms. Koss was yelling for help and

no correctional officer responded within a reasonable period of time. It took approximately 10 minutes for an inmate worker to

get the attention of a correctional officer due to the fact that

there was no officer at the interlock station. When the

correctional officer finally arrived, the officer refused to take

Plaintiff Koss to receive medical treatment and told her to wash herself up. At no time thereafter, did the Plaintiff Koss

receive medical treatment for her injuries.

34.

The Plaintiff Caprice Morales was recently a

pretrial detainee in Division Four during the January lock down,

(January 24-26, 2003). During the lock down, plaintiff Morales

suffered great emotional distress due to the aforementioned

conditions existing during the lock down. Furthermore, the lock

down constituted punishment. The plaintiff has also been a

pretrial detainee in Division Three in the summer of 2001 during lock down weekends.

35.

The Plaintiff Michelle Gandy has been pretrial

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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 14 of 20 PageID #:59
detainee in Division Four during lock downs in August of 2001 and during other lock downs over the last two years. During the lock downs, plaintiff Gandy suffered great emotional distress due to the aforementioned conditions existing during the lock down.
COUNT ONE 36. Plaintiffs reallege paragraphs 1-35 above as paragraphs l-35 of Count I. 37. At all times relevant to this complaint, the defendant, as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.C. employees not to punish pretrial detainees by engaging in non-emergency prolonged lock downs. 38. At all times relevant to this complaint, the defendant, as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.C. employees to protect inmates from harm from other inmates. 39. At all times relevant to this complaint, the defendant, as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.c. employees Lo provide appropriate medical and/or psychological treatment to prevent serious medical injuries. 40. At all times relevant to this complaint, the defendant, as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.C. employees to permit the female inmates to be able to communicate wi.th the Jail that they are in need of immediate medical and/or psychological
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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 15 of 20 PageID #:60
treatment to prevent serious medical injuries. 41. At all times relevant to this complaint, the defendant,
as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.C. employees not to endanger pretrial detainees by engaging in prolonged lock downs which are abusive and results in injury to the Plaintiffs.
42. At all times relevant to this complaint, the defendant, as Sheriff of Cook County has the duty to establish procedures and policies and to train deputy sheriffs and C.C.D.O.C. employees to permit the Plaintiffs to have access to attorneys and family members to be able to post bond or be released from custody or assist their attorney in locating favorable witnesses or exculpatory evidence.
43. Defendant SHEAHAN knew or should have known that female inmates are subjected to unreasonable non-emergency prolonged lock downs which are abusive and endanger the Plaintiffs, and are> carried out by his deputies in an unreasonable and abusive manner and which endanger the Plaintiffs and which serves no legitimate penological purpose and which violates Plaintiffs constitutional rights.
44. Defendant SHEAHAN instituted, sanctioned, and approved the following policies, practices, customs, and procedures regarding the non-emergency prolonged lock downs of female individuals who are in the custody of the Cook County Department of Corrections;
A. Female pretrial detainees are subjected to weekend
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Case: 1:03-cv-01768 Document #: 7 Filed: 04/14/03 Page 16 of 20 PageID #:61
lock downs which occur at least once a month. B. Although the searches of the Plaintiffs living
quarters (Tiers) takes less than forty minutes, the Plaintiffs remain in their cells on lock down, despite the fact that there is no valid reason for this restriction. C. The Sheriff fails to protect inmates from harm from
other inmates during the lock down. D. The Sheriff fails to provide appropriate medical
and/or psychological treatment to the Plaintiffs to prevent serious medical injuries during the lock down. E. The Defendant's weekend lock down procedure prevents female inmates from being able to communicate with the correctional officers that they are in need of immediate medical
and/or psychological treatment. F. The Defendant's weekend lock down procedure prevents
female inmates from having access to attorneys and family members to post bond or be released from custody or assist their attorney in locating favorable witnesses or exculpatory evidence. G. The Defendant's weekend lock down procedure and practice is abusive and inflicts punishment upon pretrial detainees. 45. The Sheriff failed to establish appropriate procedures
15

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and practices to ensure that female inmates are not subjecLed

to unreasonable lock downs.

46. The Sheriff failed to properly train and supervise the

deputy sheriffs and C.C.D.O.C. employees to prevent unreasonable

lock downs.

47. The lock downs of plaintiffs under the above describe

abusive conditions constitutes deliberate indifference to the

rights of the plaintiffs in violation of the Fourth and Fourteenth

Amendments to the U.S. Constitution.

48.

As a direct and proximate result of the Sheriff's

policies, practices and procedures, in his official capacity, Lhc

defendant subjected the Plaintiffs and members of the class to

unreasonable lock downs which were abusive, dehumanizing,

humiliating, terrifying, unpleasant, signifying degradation,

submission and punishment.

49. Unless the Defendant is enjoined immediately, preliminary

and permanently enjoined from continuing to subject females inmates

to abusive non-emergency weekend lock downs, defendant wlll

continue to engage in the willful, wanton and deliberate violation

of the constitutional rights of females, and plaintiffs and members

of the class will continue to suffer gross violations of their

constitutional rights and gross indignities, each of which

constitutes irreparable injury for which plaintiffs have no

adequate remedy at law.

WHEREFORE, plaintiffs PRAY that this Court enter an order:

1. Finding that this action should proceed as a class action

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pursuant to Rule 23(b) (2) of the Federal Rules of Civil Procedure;

2.

Temporarily, Preliminarily and permanently restrai.ning,

enjoining and prohibiting defendant from undertaking, enforc.ing,

maintaining or adopting any policies, procedures, practices or acts

by which any female inmate is subjected to an abusive non-

emergency weekend lock downs.

3. Awarding plaintiffs and the class their costs and

attorney's fees under Title 42 U.S.C. Sect. 1988.

COUNT TWO
50. Plaintiffs reallege paragraphs 1-49 above as paragraphs l-49 of Count II.
51. As a direct and proximate consequence of the weekend lock downs, Plaintiffs have suffered monetary damages, including but not limited to emotional trauma, physical discomfort, anguish, humiliation, and injury.
WHEREFORE, plaintiffs PRAY that this Court enter an order: 1. Enter an Order certifying the Class pursuant to Rules 23 (a) and 23 (b) (3) of the Federal Rules of Civil Procedure and appointing Plaintiffs and their counsel to represent the class; 2. Enter judgment on behalf of Plaintiffs and the Class and against Defendant for monetary damages to be determined at tri.al; 3. Enter judgment for reasonable attorney's fees and cost.s incurred in bringing this action; 4. Grant Plaintiffs any and all other relief as law and justice demand.
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~ }~v~ iainiiffs' Attorneys
Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, 11. 60643 (773 )-233-7900 Robert H. Farley, Jr., Ltd. 1155 S. Washington Naperville, II. 60540 (630)-369-0103
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CERTIFICATE OF SERVICE I, Robert Il Farley, Jr., an attorney, deposes and states that he served a copy the foregoing Amended Complaint on parties listed above by either mailing or faxing a copy on or before 5:00 p.m. on April 14, 2003.
SERVICE LIST To: Mr. Steven Puiszis Hinshaw & Culbertson 222 N. LaSalle Street, Suite 300 Chicago, II. 60601-1081
Mr. Patrick T. Driscoll, Jr. Civil Bureau Chief Office of the State's Attorneys 500 Richard J. Daley Center Chicago, !L 60602
19

 
 Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 1 of 23 PageID #:78

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

MAl L L ZU03

EASTERN DIVISION

GENISE IIART, CARMEN FELICIANO,

)

ElL: Eo

ANN FRANCIS GELCO, HELEN KOSS,

)

CAPRICE MORALES and MICHELLE GANDY, )

Individually and on behalf of a class,

)

)

Plaintirls, )

)

No. 03 C 1768

HAY Q8 2003

MICHAEL vv_ UUbtiiNS Judge James B?~~~l U.S. ['!''
-,;-,

~-· '

v.

)

)

MICHAEL SHEAHAN, SHERIFF OF COOK )

•"\

COUNTY, in his official capacity,

)

)

, ..

Defendant. )

(·_,

DEFENDANT'S MEMORANDUM OJ<' LAW IN SUPPORT OF MOTION TO DISMISS AMENDED COMI'LAINT

\
c:P

.-. "" .-_-1
-;jC.

t~

-~-----,
__ ....,

r.f'

<.JI

Defendant, MICHAEL Sl-IEAIIAN, Sheriff of Cook County, by his al(orney, Richard A.

Devine, State's Attorney of Cook County, through E. Michael Kelly and Steven M. Puis7.is or

Hinshaw & Culbertson, as Special Assistant State's Attorneys, submits th~ !(,!lowing as his

Memorandum of Law in support of his Motion to Dismiss Plaintiffs' Amended Complaint:

l.

INTRODUCTION

Plaintiffs are current or former pretrial detainees at the Cook County Jail ("CCDOC"). Those plaintiffs who are currently in custody seck injunctive relief to prevent irmn being confined to their cells when periodic weekend lockdowns occur at CCDOC. Those who have been released from CCDOC seek monetary damages tor the emotional distress and injuries which they claim to have suffered while being temporarily locked down.
As discussed below, plaintiffs have no basis to seek injunctive relief for several reasons. First, those plaintiffs who have been released from the jail lack standing to seek injunctive relief. Murphy v_ Hunt, 455 U.S. 478, 482 (1982); Robinson v. City ofChic(lgo, 86H F.2d 959, 966 (7th Cir. 1989). Second, plaintilTs' designated class representative, HELEN KOSS, has failed to fully exhaust her administrative remedies as required under the Prison Litigation Reform Act.' KOSS

1

Plaintitls allege that plaintiff KOS will serve as the "representatives [sic] of a class seeking only

injunctive relief ..."related to the complained of weekend lock down policy. (Ex. A, ,121 ).

Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 2 of 23 PageID #:79

failed to follow the grievance process after th~ grievance she allegedly filed went unanswered 2 Finally, the grievance that KOSS claims to have filed tailed to place any jail official on notice of her claim. Accordingly, because KOSS lacks standing for herself; she cannot assert standing fur

any purported class. Moreover, plaintiffs' cause of action runs headlong into Seventh Circuit precedent which
holds that detainees of the county jail have no constitutional "liberty interest" in movement outside their cells. Antonelli v. Sheahan, 81 F.Jd 1422, 1430 (7th Cir. 1996). Antonelli, affirmed a Rule 12(b)(6) dismissal of a prisoner's complaint which, among other things, challenged "arbitrary and capricious" lockdowns that occurred at the same county jaiL ld. If male residents of the CCDOC have no protecliblc interest in movement outside their jail cells under the Due Process Clause,

neither do these plaintiffs.

The periodic weekend lockdown searches serve a legitimate penological purpose, they

permit correctional otlicers to search for weapons and contraband. Where a jail regulation

furthers a legitimate penological objective and/or serves a legitimate managerial purpose or

function, it has been upheld against constitutional attack even though it has a less than salutary

impact on the conditions of an inmate's confinement. As e!<plained below, plaintitTs' Am~ndcd

Complaint should be dismissed because it tails to state a claim upon which relief can be granted.

II.

PJ,AINTIFFS' CLAIM MUST BE R~;VIEWED UNm;R THE DliE PROCESS CLAUSE

OF THE FOliRTEENTH AMI•;NDMENT, NOT THE FOliRTU AMENDMENT

Initially, it must be observed that because plaintiffs are or were pretrial detainees, their

claims are governed by the fourteenth rather than the fourth Amendment which has 1w

application to this matter. See, e.g, Johnson v. Phelan, 69 F.3d 144, 150 (7th Cir. 1995) ("lt]be

Fourth Amendment do~s not protect privacy interests within prisons. Moving to other

amendments does not change the outcome"); Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.

2003) (noting that the nwther of a prdrial detainee properly amended her § 1983 action, alleging

deliberate indifference. under Fourteenth Amendment, rather thm1 basing the claim under the

Fourth Amendment); Paige v. Hudson, 234 F.Supp.2d 893 (N.D. Ind. 2002) (holding !hat

conditions of confinement claims brought by pretrial detainees at a county jail are "valuated under

the Fourteenth Amendment, citing BdJ v. Wolfish, 441 U.S. 520, 534-35 ( 1979)). Therefore, to

2

_Defendant has no record of the

recogmzes for purposes of th1s motion

purported grievance having only, the court 1s obligated

been filed by Ms. to accept as true

Koss, bu~ Ms. Koss

assertion that it was.

-2-

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the extent that plaintiffs purport to bring thdr claims nndcr the Fourth Amendment (Ex. A, ~54), that aspect of their cause of action should be summarily dismissed.
The Seventh Circuit has also explained that there is "little practical difference between" a Fourteenth Amendment due process claim and an action brought under the ~tandard or the Eighth
Amendment. Mayoral v_ Sheahan, 245 F. 934, 938 (7th Cir. 2001) (citing Weiss v. Cooley, 230
F.3d 1027 (7th Cir. 2000)). In fact, the Seventh Circuit has consistently reviewed claims brought by pretrial detainees under principles having their origin in the Eighth Amendment. Washington v. !,aPorte County Sheriff's Office, 306 F .3d 515, 517 (7th Cir. 2002) ("The pr<Jteclions for pretrial detainees are 'at least as great as the Eighth Amendment protections available to a convicted prisoner,' and we frequently consido:r the standards to be analogous." (citation omitted)),
/Jenderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999); Frake v_ City '!(Chicago, 210 F.3d
779,781-82 (7th Cir. 2000). lll. PLAINTIFF KOSS FAILED TO EXHAliST IIER AnMINISTRATIVE GRIEVANCE A. The Prison Litigation Reform Act Section 1915A(c) of the Prison Litigation Reform Act, 42 U.S.C. § 1997e, ("PLRA")
defines the term "prisoner" to include any person detained in a facility who is accused of violating a criminal law. The PLRA applies to those plainlifCs who arc "prisoners" at the time they llle suit.
Kerr v. Puckell, 138 F.3d 321, 323 (7th Cir. 1998). Accordingly, the provisions of the PLRA
apply to Ms. KOSS because she was a "prisoner" at the time suit was tiled (Ex. A,~ II). The PLRA requires that available administrative remedies be exhausted and provides that
"[n]o action should be brought with respect to prison conditions" until such administrative remedies are exhausted. 42 U.S.C. § 1997e(a). The PLRA's pre-filing exhaustion requirements apply to "all inmate suits whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v_ Nussle, 534 U.S. 516, 532
(2002); Perez v. Wisnmsin Dep 't ofCorrections, 182 F.3d 532, 535 (7th Cir. 1999). B. CCDOC's Grievance Mechanisms
There exists a detailed grievance mechanism at the Cook County Jail as a result or a federal consent decree entered into in Duran v. Elrod, No. 74 C 2949 (the "consent decrcc") 3 As set forth by Section IIJ(R) of the decree entitled "Inmate Grievance Procedure," the grievance procedure at the jail encompasses complaints by inmates concerning "policies, practices,
A copy if the Duran consent decree is attached as Exhibit l3 to defendant's Motion to Dismiss.

Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 4 of 23 PageID #:81
procedures, conditions, acts or omissions, under the jurisdiction" of the Cook County Department of Corrections (CCDOC) (seep. 2 of attachment D to the consent decree, Ex. B). Specil1c<~lly, Section TTT(C)(1) states that grievances can be filed against "[p[olicies and rules promulgated to carry out policies" and identifies, inter alia, "inmate rights" and "security procedures" as proper topics of the grievance process (!d. at p. 3 of attachn1ent D). Section III(C)(4) states that grievances can be filed involving "[f]acilities and living conditions" (Jd.). Section lll(C)(6) further states that grievances can he filed for "[ajny inmate complaint not mentioned above concerning any matter within the jurisdiction of the Department" (Jd.). Accordingly, under the grievance process at CCDOC, the W<'<'kend lockdowns which are the subject matter of this pending lawsuit were "fair game."
Under Section TTT(C) of the grievance policy, entitled "Fixed time limits," the "[c[xpiration of a tin1e limit at any stage of the process without ofll.cial action entitles the grievant to move to th<' next state of the grievance process" (!d. at p. 4). In other words, if jail officials fail to answer a grievance, the illlnate is required "to move to the next state of the grievance process" rather than file a federal lawsuit. As discussed below, pbintiff KOSS did not I(Jllow up with any action allcr her grievanc<' was allegedly "denied''
Seclion Ili(C)(2) states that jails officials "shall, within 5 days ofthe receipt of a grievance (excluding Saturdays and Sundays) ... prepare a written decision supported by reasons, and initiate implementation of the decision" (!d.). Subsection C(3) also states that the Director of Human Services "shall, within 5 days of receipt of a written decision ... review all decisions and where appropriate make written recommendations supported by reasons to the Executive Director" (/d. at p. 5). Subsection C(4) states that the Executive Director "shall, within 10 days of receipt of a recommendation ... review the recommendation, make a written de<:ision supported by reasons and initiate implementation." (Jd., see also, Section IV(A), Step 4(g)). Section IV, Step 5 states that "[i]f a grievant wishes to appeal the decision . . ., he may seek review directly to the Grievance Appeals Panel within 14 days of his/her receipt of the decision (!d. at p. 10).
C. Plaintiff KOSS Failed to Comply With the PLRA's Exhaustion Requirements HELEN KOSS alleges that she filed a grievance about the purported lockdown policy in
the !all of 2002 and that her grievance was never answered. (Ex. A,~~ II, 22). Contradicting the allegations of the Amended Complaint, plaintiffs' counsel has tendered a two sentence grievance allegedly authored and submitted hy Ms. KOSS dated December 16, 2002 (attached as Ex. C),
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which states "I would lih to know what can be done about lockdown weekend. I feel it is unconstitutional and unfair." Ms. KOSS concludes her grievance by asking stafT to "slop[] lockdowns."
Ms. KOSS alleges that her grievance was "denied by the defendant" (Ex. A, ~32). R,lsed on the purported "denial" of Ms. KOSS' alleged grievance, plaintiffs aver that there is no mechanism for detainees to grieve the Jail's weekend lockdown policy:
There are no administrative procedures available to the plaintitl"s at the Jail to challenge or change the fom1al policy of the Sheriff to conduct the weekend lockdowns. Under the existing grievance procedure, there is no authority for inmates to contest the weekend lockdowns as evidenced by the fact that the Jail failed to act on Helen Koss' grievance in the fall of 2002 concerning lockdowns. Inmates are permitted to initiate some grievances at the Jail by handing grievances to the social workers assigned to the Division. TI1e practice and policy at the Jail is for the social worker to initially review the grievance and throw it away and not process those grievances which they deem unsuitable such as grievances which concern official policies at the Jail. (Ex. A, ,122).
Plaintiffs do not cite any additional instance where a gncvance related to a weekend lockdown was denied. That being the case, as a matter of law, no "policy" or denying similar grievances ~an be said to exist. City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) ("considerably more proof than laJ single incident will be necessary ... to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy' <tnd the unconstitutional deprivation."); Estate of Novack v. County of Wood, 226 F.Jd 525, 531 (7th Cir. 2000) ("Even if we were to find that Novack's suicide itself was a result of unconstitutional conduct, a single instance of all~gedly unconstitutional conduct does not demonstrate a municipality's deliberate indifference"); Caldwell v. Cit of Elwood, Ind., 959 F.2d 670, 673 (7th Cir. 1992) ("drawing a reasonable inference that a municipal custom or policy exists when he has only pled one incident of alleged retaliation for speech on matters of public concern requires a leap in logic that we are unwilling to take.").
Notwithstanding plaintiffs' failure to properly establish a "policy" claim, plaintiff KOSS failed to fully exhaust her available administrative remedies. The Seventh Circuit has held that "exhaustion means using all steps that the agency holds out, and doing so proper!v (so that the agency addresses the issues on the merits). Pozo v. McGaughtry, 286 F.3d I022, I024 (7th Cir. 2002) (emphasis in original). Pozo reversed a district court's decision which had held that a
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prisoner was excused from exhausting administrative remedies where the prisoner had failed to timely file an appeal of the denial of his grievance. While the administrative rules in Pozo required the prisoner to file an appeal within 10 days, he waited a year to do so. !d. at 1024. !Iis administrative appeal was denied. !d. Confronted with the prison officials' exhaustion defense, the inmate claimed that he had exhausted his remedies because a prison official "could have accepted [the untimely appeal] and addressed the merits ...." !d. (emphasis in original). The prisoner argued that "the power to [adjudicate] the untimely appeal is enough for exhaustion." !d. (emphasis in original). Pozo rejected this argument holding:
[U]nless the prisoner completes the administrative process by following the rules the state has established for that process, exhaustion has not occurred. Any other approach would allow a prisoner to 'exhaust' state remedies by spurning them, which would defeat the statutory objective of requiring the prisoner to give the prison administration an opportunity to fix the problem - or to reduce the damage and perhaps shed light on factual disputes that may arise in litigation even if the prison's solution does not fully satisfy the prisoner.
I d. at I023-24.
Pozo explained that a prisoner can fail to exhaust administrative remedies where he or she fails to appeal the denial of a grievance: "to exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." !d. at 1025. Following Pozo, the Seventh Circuit in Dixon v. Page, 291 F.3d 485, 488-91 (7th Cir. 2002) held that an inmate had failed to fully exhaust his grievance where he failed to appeal his grievances and where he also failed to make an immediate appeal to the Director of the Department of Corrections after a sustained grievance was not implemented.
To the extent that plaintiffs attempt to avert dismissal by relying on their conclusory assertion that there are "no administrative procedures available to plaintiff's at the Jail to challenge or change the formal policy of the Sheriff to conduct the weekend lock downs" because KOSS' grievance was allegedly left unanswered, their argument flies against several Seventh Circuit decisions which have rejected inmates' arguments that they need not follow applicable grievance procedures on the basis that the procedures are "futile." Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 534-36 (7th Cir. 1999) rejected an inmate's argument that it was futile to haw lile a grievance, calling the argument "guesswork" and holding that "[n jo one can know whether administrative requests will be futile; the only way to find out is to try." Similarly, Massey v.
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Helman, 196 F.3d 727, 733 (7th Cir. 1999) opined that the "potential effectiveness of an administrative response bears no relationship to the statutory requirement that prisoners first attempt to obtain relief through administrative procedures." Rather, Massey noted that the issue is "whether the institution has an internal grievance procedure by which prisoners can lodge complaints about prison conditions." !d. <tt 734. As noted above, Dixon v. Page, 291 F.3d 4')0 held that " pris<mer was first required to appeal to Director of JDOC before he could properly allege that lower level officials had fi·ustrated or ignored his remedy. See also, McCoy v. Gilbert, 270 F.3d 503, 511 (7th Cir. 2002).
Jn light of the foregoing, it is clear Ms. KOSS failed to exhaust the grievanc"' procedure becaiL~e she failed to take her grievance to the next level or review after her initial grievance was allegedly unanswered. The CCDOC grievance policy clearly states that the "[c]xpiration of a time limit at any st<tge of the process without official action entitles the grievant to move to the next state of the grievance process" (See p. 4 of Ex. D to the Consent Decree (Ex. B)). Accordingly, because KOSS failed to take her grievance to the next level of review <tiler it was allegedly not answered, she cannot claim that furtl1er review is "unavailable" to satisfY§ 1997e(a)'s exhaustion requirement. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032 (lOth Cir. 2002). Jernigan, held that a prisoner's failure to resubmit an unanswered grievance constitutes a failure to exhaust "[a]n inmate who hegins the grievance process but does not complete it is barred li-om pursuing a §1983 claim under PLRA for failure to exhaust his administrative remedies." ln so concluding, Jernigan distinguished the Seventh Circuit's opinion in Lewis, holding lhal the inmate failed to exhaust his remedies because the grievance policy (in the court's words) "provides that if an inmate docs not receive a response from the warden within tl1irty days after submission of the grievance, the i1m1ate may send the grievance with evidence of its prior submission to an administrative review body." ld. at 1033. 4

4

The Seventh Circuit in Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002) discussed a limited

exception to the exhaustion requirement set forth in l'ozo and Dixon. Citing decisions from the Eighth and

Fifth Circuits, Lewis held that where a prison official ignores an inmate's grievance, the inmate is required

lo "exhaust only those remedies lhat arc available to him." 300 F.Jd at 833 (emphasis supplied).

Ultimately, Lewis held that the inmate had failed to exhaust his remedies because lhc prison officials had

answered the second of his lwo grievances. !d. ("because Lewis received a response to his 'Staff Conduct'

grievance, administrative remedies were available, for his failure to protect claims, and he was required to

appeal the denial of his grievance within the time frame set by the prison."). Lewis does not control the

disposition of this motion because plaintiff KOSS did not attempt to appeal the alleged lack of a response

to her grievance. Oefendant is aware that one published district court opinion and three unpublished

opinions have held that the l'LRA's "exhaustion" requirement was satisfied where it was alleged that

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Accordingly, because KOSS did not resubmit her grievance that was allegedly ignored, she
cannot claim that her grievance was denied. Rather, she must go through and complete the
process. Similarly, the Sixth Circuit has also held that a prisoner must continue with the grievance
process if he does not receive a response -- "[e]ven if plaintiff did file an initial grievance ..., he
was required to continue to the next step in the grievance process within the time frame set forth in
the regulations if no response is received from prison o11kials." Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cit. 1999).5 See also, Alexander v. llawk. 159 F.3d 1321, 1325-26 (lith Cir.1998) ("the
courts cannot simply waive [the exhaustion] requirements where they determine they arc futile or
inadequate"). In summary, plaintiffs' claim for injunctive relief and any claim of damages which
Ms. KOSS brings should be dismissed because she failed to properly appeal the alleged "'denial..
of her grievance.
D. Plaintiff KOSS Failed to Place the CCDOC on Notice of Her Claim(s)
Plaintiff KOSS' skeletal grievance fails to satisfy the PLRA because it would not have
placed any jail oflkial on notice of her claims. While the Seventh Circuit in Strong v. David, 297
correctional officials failed to respond to an inmate grievances. See Jones v. De Tel/a, 12 F.Supp.2d 824, 826 (N.D. Ill. !998); Whitmore v. Hurley, 2002 WL 2012469, •3 (N.D. Ill. 2002); Bailey v. Sheahan, 2002 1750929, *2 (N.D. Ill. 2002); Goodman v. C'arter. 2001 WL 755137, *3 (N.D. Ill. 2001). Defendant submits those decisions are distinguishable because they did not have occasion to address the application of Section lll(C) (or any similar procedure) which provides that inmates can move to the next level of the grievance process if no response is received. They are also distinguishable to the extern that they were
decided before (or ignored) the Seventh Circuit's decisions in Pozo and Dixon.
The following decisions have also held that a prisoner's failure to follow up on an allegedly ignored grievance docs not constitute exhaustion under the PLRA. Reyes v. Punzal, 206 F.Supp.2d 43 L 432-33 (W.D.N.Y. 2002) (inmate required to pursue appeal process despite alleging that facility failed to investigate his complaint- "even if plaintiiT received no response to his grievance, he could have appealed it to the next level. By not doing so, plaintiff failed to exhaust his administrative remedies as required by the PLRA as a prerequisite to tiling this lawsuit"); Martinez v. Williams, 186 f.Supp.2d 353, 357 (S.O.N.Y. 2002) (holding that inmate who allegedly did not receive response to grievance "could h"ve "nd 'hould have appealed the grievance in accordance with grievance procedures"); Flowers v. Grant, 2003 WL 1565940, •2 (S.D.N.Y. 2003) (finding no exhaustion- "even if Plaintiff has tiled an 'institutional grievance form' relating to his ETS claim, Plaintiff has not alleged that he followed any of the Department of Correction procedures for appellate review of his grievance."); Kearsey v. Williams, 2002 WL 1268014, •2-•3 (S.D.N.Y. 2002) (finding no exhaustion - "even if the IGRC at Rikers Island does not as a general practice investigate complaints against staff, the law requires that Plaintiff pursue his grievance with the superintendent and the CORC"); Water> v. Schneider, 2002 WL 727025, •2 (S.D.N.Y. 2002) (finding no exhaustion- and noting "Lwherej the committee fails to respond to the grievance, the inmate may appeal to the next level without awaiting administrative action"); Mendoza r. Gaurd, 2002 WL 31654855, •2 (S.D.N.Y. 2002) ("even accepting Mendoza's claim that he was never notified of the rejection of his grievance (or even had that rejection never occurred), the regulations clearly permit an appeal, and tiling such an appeal is accordingly required by§ 1997e(a) before a suit can he hrought").
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F.3d 646, 649-50 (7th Cir. 2002) acknowledged that "few courts have addressed what things an administrative grievance must contain," it found that that "[w]hen an administrative rulcbook is silent, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." The lacts of Strong are readily distinguishable because KOSS' skeletal grievance stands light years away from the grievances addressed in Strong.
In Strong, the plaintiff filed two grievances, the first of which detailed an alleged sexual assault and the marmer in which individuals lrom the prison's Internal Affairs and Adjustment Committee responded. !d. at 647. Specifically, the court noted that the plaintiff "asked to be released from segregation, that the 'matter not be overlooked', and that certain property and privilege be returned to him." !d. The grievance was denied. !d. The defendants conceded that the plaintiiThad properly pursued all administrative remedies with regard to that initial grievance. !d. After being transferred to a new prison as a result of the underlying incident, the plaintiiTfiled a second grievance which tracked the factual allegations of the first and "sought additional relief, including a new polygraph examination, that 'all person involved be held liable ti)r their action,' and compensation from pain and suffering." !d. at 648. The second grievance was also denied.
The defendants moved for summary judgment by arguing the plaintiff had failed to fully exhaust his administrative remedies on the basis that the two grievances were not detailed enough. ld. In addressing this argument, the Seventh Circuit noted that the district court failed to explain why the first grievance was not detailed enough. ld. The Seventh Circuit explained that "Strong's two grievances were comprehensible and contained everything that Illinois instructed him to include." !d. at 650.
Here, in contrast, KOSS' two sentence grievance that she allegedly filed in December of 2002 neglects to mention the alleged altercation with her cellmate which she claims took place in April of 2002. (Ex. A, ~33). It also fails to set f(wth what aspect of a weekend loekdown she was grieving such as the alleged lack of phone calls, showers, visitation or that weekend lockdowns occur at all. That being the case, the submission of KOSS' grievance is like the one addressed in Murray v. Artz, 2002 WL 31906464, *4 (N.D. lll. 2002) where Judge Kennelly dismissed an inmate's claim of inadequate medical care on the basis that "there is no hint in the grievance, so it
does not snftlce to "alert! I the prison to the nature of the wrong fi)T which redress is sought''
(quoting Strong, 297 F.3d at 650).
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KOSS' failure to specifically grieve the alleged April incident and/or mention it in her alleged December grievance and her failure to put orlicials on notice as to what aspect of the weekend lockdown she was challenging runs contrary to the purpose of the PLRA which was to "reduce the quantity and improve the quality of prisoner suits." Poner v. Nussk 534 U.S. 516, 525 (2002). Among other things, the Supreme Court in Porter discussed that that when cases actually do reach federal court after the administrative remedies have been exhausted, the court's "adjudication could be facilitated by an administrative record that clarifies the contours of the controversy ." Jd, quoting Booth v. Churner, 532 U.S. 731, 737 (2001). These spedfic policy goals were cited by the court in English v. Redding, 2003 WL 881000, *3-*4 (N.D. Ill. 2003) where the court held that the inmate had failed to place the defendants on notice that he required protection from another inmate. Here, Ms. KOSS has failed to set forth any basis in the administrative record that illuminates, much less clarifies her claims that the weekend lockdowns violated her constitutional rights. For this additional reason, the Amended Complaint should be dismissed.
IV. THE WEEKEND LOCKDOWN HAS A LllGITIMATE PENOLOGICAL
0Jut;C'J'JVE- THE DISCOVERY OF WEAPONS ANil CONTRABAND
Bell v. Wolfish, 441 U.S. 520, 547 (1979) explained that correctional otllcials should be afforded broad discretion in establishing appropriate security measures at a cmmty j<lil:
The problems that arise in the day-to-day operation of a ~orrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deferen~e in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.
Bell also recognized that there was no basis to conclude that "pretrial detainees pose any lesser security risk than convicted inmates. lndetJd, it may be that in certain circumstances they present a greater risk to jail security and order." 441 U.S. at 546 n.28. Following Rei/, Sherifl' Sheahan can limit the rights of the detainees held in his custody where necessary to either maintain institutional security or to preserve order and discipline. !d. at 546; Rlrn•k v. !?utherji,rd, 468 U.S. 576 (1984) (upholding blanket prohibition of contact visits for pretrial detainees).
Where injunctive relief is sought in a correctional setting, the Seventh Circuit in Godinez v. Lane, 733 F.2d 1250, 1261 (7th Cir. 1984) also cautioned distric! courts to hesitate before treading into the management of prisons and jails and has instructed district courts to weigh the interests of
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prison officials and to general public against the claims of inmates. In reversing the entry of a preliminary injunction !he court in Godinez observed;
[T]he undue burden that the district court's preliminary injunction would cause the Illinois Department of Corrections clearly disscrvcs the public interest. "Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or esc<tpe, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody." Prison administrators are specially trained and duly compensated by the public to handle the daily operation and maintenance or maximum security prisons_ Absent a clear constitutional violation, courts should he hesitant to impose their theories of prison reform. In contrast to the vast majority of Federal judges, prison administrators possess a wealth or penological expertise and experience that qualifies them to supervise, discipline, and rehabilitate inmates within an ever-changing, complex prison system. Judicial deference is accorded th<lir decisions "not merely because the administrator will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly !he province of the Legislative and Executive branches of our Government, not the Judicial."
I d. at 126 I~62 (citations omitted).
Similarly, Judge Leincnweher held in Ruck v. Briley, 2001 WL 619523, •2 (N.D. l11. 200 I) that the public interest "in the safe and orderly management of prisons" is of great concern "'when a prisoner seeks a preliminary injunction against correctional officials'' In this context, "federal
courts must take cognizance of prisoners' valid constitutional claims, federal courts cannot manage prisons, and must give substantial deference to those who do." ld.
Against this backdrop, the Seventh Circuit has reiterated that the conditions of confinement for a pretrial detainee do not constitute an unconstitutional punishment where legitimate "managerial reasons" exist for their imposition. 1-liggs v_ Carver, 286 F.3d 437, 438 (7th Cir. 2002). Higgs also held that a inmate "would not be entitled to notice and a hearing,""[a]s long as
the purpose was indeed a preventive rather than a punitive one." Id.
Legitimate security concerns exist which justify the periodic weekend lockdowns. Plaintiffs acknowledge in paragraph 18 of their Complaint that tl1e purpose of these weekend searches is to search l()r contraband. Given this concession and the obvious security risks that
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exist at any large county jail, the weekend lockdowns serve a legitimate managerial purpose and
do not violate plaintil'l's' rights under the Fourteenth Amendment. Indeed, as Bell explained:
For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restrai11ts that are reasombly related to the institution's interest in maintaining jail security do not, without more constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting triaL

Bell, 441 U.S. at 540. See also, Washington v. Harper, 494 U.S. 210,225 (1990) ("There arc few cases in which the State's interest in combating the danger posed by a person to himself and others is greater than in a prison environment, which, 'by ddinition,' is made up of perwns with 'a demonstrated proclivity for antisocial criminal, and often violent, conduct."'). Conseq•tently, because they serve a legitimate peneological function, plaintii'i's have no basis to challenge the

constitutionality of the weekend lockdown searches at the jail.

V.

THE R~;LIEF PLAINTIFFS SEt:K WILL HARM THE "PUIILIC INTEREST"

As discussed above, the plaintiffs' claims for injunctive relief must be weighed against the "public interest." Here, the broad relief demandt!d by the plaintiffs will harm the "public intt!resl" to the extent that CCDOC will be prevented from conducting appropriate searches ti.>r weapons and other contraband on a division-wide basis. Contrary to plaintiffs' sweeping conclusion, the practice of searching for weapons and contraband is not intended to punish detainees but is done in an efliwtto properly find and secure illegal weapons and contraband at the jail. In light of the risk to the public interest that would spring lrom precluding CCDOC from locking down the jail to search fi>r weapons and contraband, this Court should dismiss plaintills' requests for inj•mctiv~ relief. This is especially true since the weekend searches of an entire division are conducted to preclude the transfer of weapons or contraband !rom inmate-to-inmate between divisions or

between tiers of the jail.

VI. PLAINTIFFS HAVE NO LIBERTY INn; REST IN MOVEMENT OliTSIPE THEIR CELLS

Plaintiffs claim that their constitutional rights have been violated because they are periodically confined to their cells when a weekend lockdown occurs. However, the scop<' of protection afforded under the Fourteelllh Amendment was discussed in Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Antonelli held that a pretrial detainee has "no general liberty

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interest in movement outside of his cell guaranteed by the Due Process Clause." In Antonelli, plaintiff objected to lockdowns which impacted his freedom of movement and claimed those lockdowns were "arbitrary and capricious." ld. at 1430. Rejecting that claim, Antonelli ho:ld:
A condition of confinement may be imposed on a pretrial conllnee without violating the Due Process Clause if it is reasonably related to a legitimate and non-punitive governmental goal. It may not be arbitrary or purposeless. "Retribution and deterrence are not legitimate non-punitive governmental objectives." Therei(Jre, the infliction may not derive from an intent to punish. "Such a course would improperly extend the legitimate reasons lor which such persons are detained- to ensure their presence at trial." Also, there "is no doubt that preventing danger to the commw1ity is a legitimate regulatory goal," that may, "in appropriate circumstances, outweigh an individual's liberty interest." A prison official violates the constitutional rights of a pretrial detainee only when he acts with deliberate indifference. Conduct is deliberately indifferent when the defendant acts in an intentional or criminally reckless manner.
ld. at 1427-28 (citations omitted). See also, Smith v. Shettle, 946 F.2d 1250, 1252 (7th Cir. 1991) (no constitutionality based liberty claim to be housed in non-lockdown conditions or to mingle with others); Maust v. Headley, 959 F.2d 644, 746-48 (7th Cir. 1992) (holding criminal defendant found unfit to stand trial did not have a liberty intere~t in being confined in the "least restrictive enviromnent"); Caldwell v. Miller, 790 Ji.2d 589, 604-05 (7th Cir. 1986) (even ass,lming lockdown restrictions were permanent, due process rights were not violated because the difference in pre and post-lockdown conditions is one of degree and not of kind). In light of the foregoing, plaintiffs' due process claim should be summarily dismissed.
Moreover, pretrial detainees do not enjoy a constitutional right against being subjected to intrusive searches. Bell, 441 U.S. at 557 ("even the most zealous advocate of prisoners' rights would not suggest that a warrant is required ... Detainees' drawers, beds and personal items may be searched."); Hudwn v. Palmer, 468 U.S. 517, 526-30 (1984) (holding that prisoners lack expectation of privacy in their belongings). It follows that pretrial detainees have no constitutional right which precludes the periodic weekend lockdown searches of the jail.
Accordingly, it is clear that institutional lockdowns over a weekend do not violate the Constitution. Searching for weapons and contraband at a jail is a "legitimate and non-punitive goal" that docs not violate any constitutional right. Atonel/i, 81 F3d. at 1428. Conspicuous by its absence in plaintiffs' Complaint is any assertion that the defendant intended to punish plaintiff's by
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virtue of the periodic weekend lockdowns, which in and of itself warrants dismisH<d ol' tlw

Complaint under Antonelli. Accordingly, since a pretrial detainee has "no gcn<!ntl liberty interest

in movement outside of his cell," plaintiffs cannot slate a daim upon which relief can be granlt:'d.

VII.

PLAINTIFFS FAIL To ALLEGE Til AT CONDITIONS DURING A WEEK.:NII
LOCKDOWN IMPOSI•; AN "ATYPICAL AND SIGNIFICANT HAIWSIIIP"

Tn order to state a violation of the Fourteenth Amendment, plaintiffs must demonstrate that

they have a "liberty interest" in the purported constitutional right they claim has been violated and

that the deprivation they allegedly suflered "imposes atypical and signilkant hardship" in a

constitutional sense. Thielman v. Leen, 282 F.Jd 478, 482 (7th Cir. 2002). As discussed below,

plaintitls do not enjoy a "liberty interest" to not be subjected to the complained of conditions.

Thielman upheld the district court's detem1ination that several provisions of the State or

Wisconsin's Sexually Violent Persons Act (a civil commitment statute) did not violate a detainee's

due process rights where plaintiff had alleged that the defendants had subjected him to overly

restrictive security measures ···· characterized by the court as "full and double-locked restraints.

chain-type-belt waist restraints with attached handcuffs, security Blackbox, and leg restraints'"

during transport without an individuali~ed detem1ination that the security measures were

necessary. Jd. at 482.

In affim1ing the district court's dismissal of this claim, the Seventh Circuit analyY.ed the

"predicate question"- "whether Thielman had a liberty interest in not being subjected to WRC's

restraint policy, Accepting the argument that Wisconsin law provided the plaintiff with "a state-

created right to the least restrictive conditions of confinement during transport," Thielman held

that the Wisconsin statutes did "not provide !him withl a liberty interest cognizable under the

Fourteenth Amendment." 282 F.3d at 482. Next, the court found that civil detainees could only

have a protectible liberty interest under state law where the method of restraint "'imposes atypical

and significant hardship on the inmate in relation to the ordinary incidents of prison li le. "' hl at

484 (quoting Sandin v. Conner, 515 U.S. 472,484 (1995)).

Applying the of Supreme Court's rationale in Sandin, the Seventh Circuit held that the

district court properly provided the officials with "'appropriate deference and flexibility.'"

Thielman, 282 F.3d at 483 (quoting Sandin, 515 at 4S2-S3). The Seventh Cin:uit recognized thai

"Sandin teaches that any person already confined may not nickel and dime his way into a federal

claim hy citing small, incremental deprivations ol'physicallreedom." As support, Thielman found

that "facilities dealing with those who have been involuntarily committed Cor sexual disorders are

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Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 15 of 23 PageID #:92

'volatile' environments whose day-to-day operations cannot be managed from on high'' !d. at

483. Thielman then concluded that the complained or methods of restraint ("a waist belt and leg

chains") did not impose an "atypical and significant hardship in relation to the ordinary incidents

or[plaintift'sj confinement." /d. at 484.

Under Thielman, in order to state a claim under the due process clause of the l'ourkenth

Amendment, plaintiffs must demonstrate that the random weekend lockdowns imposes an

"atypical and significant hardship" on them which is signilicanlly different ti-orn the ordinary

incidence of life in the county jail. Because plaintiffs are already subjected to lockdowns at nigh!

and during shift changes they cannot establish any "atypical hardship'' that is caused by the

incremental lockdown period that occurs when a division of the jail is locked down to search f(,r

weapons on a weekend. For this reason as well, the Amended Complaint should be dismissed.

VIII. Tu~; COMPLAINED OF CONDITIONS RESliLTING
LOCKDOWNS Do NOT VIOLATE THE CONSTlTliTION

FROM

THE

Security measures that result in certain deprivations of cultural amenities or which restrict an inmate's desire to live as comfortably as possible do 11ot 11eeessarily violate the Constitution. As explained by the Supreme Court in Lewis v_ Casey, 518 U.S. 343, 361-62 (1996), "[t]he district court made much of the fact that during lockdown, prisoners routinely experience delays in receiving legal materials or legal assistance, some as long as 16 days, but so long as they are the product of prison regulatio11s reasonably related to legitimate penologkal interests, such delays are nol of co11stitutional significance, even where they result in actual injury." llere, none of the

complained of conditions (the alleged lack of showers, exercise, telephone access and/or medical attention, (see Ex. A,~~ 19-20) violate the Constitution.

A.

THE ALLEGED LACK 01" SIIOWERS

The deprivation of "cultural amenities" does not violate the Constitution. Henderson v. Lane, 979 F.2d 466, 469 (7th Cir. 1992); Bell, 441 U.S. at 437 ("'the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possihle with as little restrai11t as possible during confi11ement docs not convert the conclusions or restrictions of

detention into 'punishme11t'"). In Davenport v. DeRohertis, 844 F.2d 1310, 1316 (7th Cir. 1988), the court determined that one shower per week was constitutionally sunicienL Here the alleged failure to provide plaintiffs with showers does not amount to a constitutional violation.

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Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 16 of 23 PageID #:93
B. The Alleged Lack of Exercise A claim for "lack of exercise" may only rise to the level of a constitutional violation where a plaintiff alleges that "movement is denied and muscles are allowed to atrophy [andj the health of the individual is threatened." "Thomas v. Ramos, 130 F.3d 754, (7th Cir. 1997), quoting French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985). Under this standard, plaintiffs fail to allege that they have suffered any injury from their alleged lack weekend exercise during the lockdowns. Indeed, they do not even suggest that they cannot perform exercises in their cells.
C. The Alleged Lnck of Access to Phones Plaintiffs do not have the right to unlimited phone use. Benzek v. Grammar, 869 F.2d II 05, II 08 (8th Cir. 1989). Thus, the mere delay in access to the phone during the weekend lockdowns does not trigger a constitutional violation. Moreover, plaintiffs do not claim to have
suffered any prejudice to pending or contemplated litigation as a result of the purported denial or
the phone privileges. Consequently, these allegations fail to establish a eonstitutiomll violation. Antonelli, 81 F.3d at 1432 (afflrming the dismissal of a similar claim where pretrial detainee laikd to allege any detriment his access to court); Carter v. 0 'Sullivan, 924 F.Supp. 903, 909 (C. D. IlL 1996) (denying TRO where it was alleged that new phone system resulted in delays of up to twenty days in making phone calls to an attorney).
D. The Alleged Lack of Medical Cnre The Amended Complaint establishes that plaintiff GELCO's cell mate was r~moved from
her cell for a psychological evaluation (Ex. A, '131 ). Accordingly, plaintiffs' allegations refute a
claim of deliberate indifference. Chapman v. Keltner. 24 F.3d 842, 845 (7th Cir. 2001). Neither negligence nor even gross negligence will suffice to state a claim and, at best, that is all plaintiff\; have possibly asserted. Liability is only triggered by conduct that is intentional or criminally reckless. Jd. Additionally, no claim is stated unless an inmate asserb that tho: defendant knew of and failed to treat a serious injury or mo:dical need. Moreover, plaintiffs must establish: (1) that they had an objectively serious injury or medical need; and (2) the official knew the risk of injury was substantial and failed to take measures to prevent it. !d.
Plaintiffs' assertions fall far short of these pleading thresholds. While they suggest that they should have been instantly removed from their cells and provided with medical care, the Constitution does not so require in the context of the lockdown procedure in question. The Constitution docs not require the immediate administration of non-emergency medical care during
-16-

. '
Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 17 of 23 PageID #:94

emotional distress. See, e.g., Mitchell v. Horn, 318 F.3d 523, 534-36 (3rd Cir. 2003) (citing Oliver v. Keller, 289 F.Jd 623, 626-28 (9th Cir. 2002), Harris v. Garner, 190 F.Jd 1279, 1286-87 (II th Cir. 1999), vacated and reh 'g en bane wanted, 197 F.Jd l059, reinstated in part on reh 'g, 216 F.3d 970 (lith Cir. 2000) (en bane), cert. denied, 532 U.S.I065 and Siglar v. High/ower, 112 F.3d 191, 193-94 (5th Cir. 1997); Oliver v. Keller, 289 F.3d 623,629 (9th Cir. 2002) (holding th<tl a detainee failed to allege more than a de minimis injury where he alleged, among other things, that he was assaulted by prisoner).

X.

PLAINTIFFS AJU; NCJT ENTITLED TO DAMAGES BECAUSE THEY HAVIG

NOT PROPERLY ALLEGE f) A CI,AJM AGAINST THE SHERIFF

It is axiomatic that the absence of a constitutional violation precludes a claim against the Sheri IT in his official capacity. City ofLos Angeles v. Heller, 475 U.S. 796, 799 (1986). 13ccausc the weekend lockdowns do not vioi<Lle plaintiffs' constitutional rights, their claim <Lgainst the Sheriff tails. It is also black letter law that Sheriff Sheahan cannot be held liable on the basis of
m respondeat superior. Ignoring this principle, plainti KOSS and GELCO suggest that because
they were allegedly injured during a weekend lockdown, their claims are cognizable. This is simply not the case. Rather, where "constitutionally based physical injury claim is pr~mi8~d upon a purported failure to train or to provide adequate staff (as it is alleged in paragraphs 40-42 of the Amended Complaint), a plaintiff must show that the defendant's "policy" was deliberately indifferent to the decedent's rights and that such indifference was the proximate cause of the
plaintiffs injuries. See, e.g., Board 1!1' County Com 'rs of Bryun County, Okl. v. Brown, 520 U.S.
407 (1997) ("a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights."); City r!f.Cunton v. Harris, 489 U.S. 378, 388 (1988); lneco v. Cily of Chicago, 286 F.3d 994, 998 (2002); .t:state oj'Porter v. Stale of'illinois, 36 F.3d 684, 688-89 (1994); Benson v. Cady, 761 F.2d 335, 341 (7th Cir.1985).
Here, none of the pbintifTs have alleged that any claimed physical injury was a proxin1<1te cause of any fault of the defendant in a constitutional sense. Accordingly, all claims brought against the Sheriff should be dismissed.

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Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 18 of 23 PageID #:95

WHEREFORE, Sheriff Michael Sheahan prays that this Honorable Court grant his motion to dismiss.

E. Michael Kelly Steven M. Puiszis HINSHAW & CULBERTSON 222 North LaSalle Street Suite 300 Chicago, I11inois 60601 ~ 1081 (312) 704-3000

Ry:----:;;,.&,~~~'!..L~~~ nc of the A!lorneys for
Michael Sheahan

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Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 19 of 23 PageID #:96

TABLE Ol<' CONTENTS
I. INTRODUCTION ............................................................................................................................. !

II. PLAINTIFF'S CLAIM MUST BE REVIEWED UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, NOT THE FOURI'Il AMENDMENT ................................. 2

ITT. PLAINTifF Koss FAILED To EXHAUST I-lEI~ ADMINISTRATIVE GRiflV ANCE .................... . ... -__0)

A.

THE PRISON LJTIGAI'ION REFORM ACT ..................................................... .

.. ' - --~"'

B.

CCDOC's GRIEVANCE MECHANISM ....................................................................... 3

C.

PLAINTIFF Koss FAILED TO COMPLY WITH THE PLRA'S

EXHAUSTION REQUIREMENTS ............................................................................. --- -A

D.

PLAINTIFF Koss FAILED To PLACE THE CCDOC ON

NOTICE OF HER CLAIM(S) ........................................................................................ 8

IV. THE WEEKEND LOCKDOWN HAS A LEGI'l'JMATE PENOLOGICAL OBJECTION
-THE DISCOVERY OF WEAPONS AND CONTRABAND ......................................................... 10
V_ TilE RELIEF PLAINTIFFS SEEK WILL I-IARM TilE "PUBLIC INTEREST" ....................................... 12
VI. PLAINTIFFS HAVE NO L113ERTY INTEREST IN MOVEMENT OUTSIDE THEIR CELLS ................... 12

VII. PLAINTIFFS FAIL To ALLEGE THAT CONDJTIONS DURING A WEEKEND
LOCKDOWN IMPOSE AN "ATYPICAL AND SIGNIFICANT HARDSHIP" ................................... 14

VIII. Tiif:' COMPLAINED Or CONDJTIONS RES\JLTINC FROM TilE LOCKOOWNS DO NoT VIOLATE THE CONSTITUTION .......................................................... I 5

A.

THE ALLEGED LACK OF SHOWERS ......................................................................... 15

B.

THE ALLECED LACK OF EXERCISE ......................................................................... 16

C.

TI-IB AI.LllG!llJ LACK Or ACCESS To PHONES ......................................................... 16

D.

TilE ALLEGEO LACK Or MEDICAL CARE ................................................................ l6

IX. PLRA PRECLUDES DAMAGES CLAIM IN ABSENCE OF PHYSICAl. INJURY ................................ 17

X. PLAINTifFS ARE NOT ENTITLED To DAMAGES BECAUSE THEY HAVE NOT PROPBHLY ALLllGED A CLAIM AGAINST THE SHERIFF ............................................... 18

Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 20 of 23 PageID #:97
TABLE OF CASES Alexander v_ Hawk, !59 F.3d 1321 (11th Cir. 1998) .............................................................. ________ 8 Antonelli v .Sheahan, 81 F.3d 1422 (7th Cir. 1996) -------·----·----·------------- .......................2, 12, 13, 16 Bailey v .Sheahan, 2002 1750929 (N.D. Ill. 2002) ..........................................................................8 Bell v. Wolfish, 441 U.S. 520 (1979) .......................................................................2, 10, 12, 13, 15 Benzek v. Grammar, 869 F.2d 1105 (8th Cir. 1989)...................................................................... 16 Benson v_ Cady, 761 F.2d 335 (7th Cir. 1985) .............................................................................. 18 Blockv. Ruthet:ford, 468 U.S. 576 (1984) ................................................................................... 10 Board ofCounty Commissioners ofBryan County, Oklahoma v.
Brown, 520 U.S. 407 (1997) .................. :......................................................................... 18 Booth v. Churner, 532 U.S. 731 (2001) ......................................................................................... 10 Buck v. Briley, 2001 WL 619523 (N.D. Ill. 2001) ......................................................................... 11 Caldwell v_ City ofElwood, Ind., 959 F.2d 670 (7th Cir. 1992) .....................................................5 Caldwell v_ Miller, 790 F.2d 589 (7th Cir. 1986) ................................................... _.............. 13 Carter v. O'Sullivan, 924 F. Supp. 903 (C.D. TIL 1996)................................................................ 16 Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003) ........................................................................2 Chapman v. Keltner, 24 F.3d 842 (7th Cir. 2001) ......................................................................... 16 City o_(Canton v_ Harris, 489 lJ .S. 378 (1988) .............................................................................. 18 City o_(Los Angeles v. Heller, 475 U.S. 796 (1986)....................................................................... 18 City ofOklahoma City v. Tullle, 471 U.S. 808 (1985).....................................................................5 Cooper v_ Casey, 97 F.3d 914 (7th Cir. 1996) ............................................................................... 17 Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir. 1988) ............................................................. 15 Davis v. Jones, 93 6 F .2d 971 (7th Cir. 1991) ..................... -·-- _, ____ ----· .. ________________ .__ .. ____ ...... __ .. ___ .... 17 Dixon v_ Page, 291 F.3d 485 (7th Cir. 2002) .......................... ------------------ ...............................6, 7, 8 Echols v. Skipper, 2001 WL 936128 (N.D. Ill. 2001) ..................................... .. English v_ Redding, 2003 WL 881000 (N.D. TIL 2003) .. ---------- -------------- ...................................... 10

Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 21 of 23 PageID #:98

Estate ofNovackv. County of Wood, 226 F.3d 525 (7th Cir. 2000)................................................ 3

Estate ofPorter v. State ofillinois, 36 F.3d 684 (1 994) ................................................................ 18

Flowers v. Grant, 2003 WL 1565940 (S.D.N.Y 2003) .................................................................. &

Frake v. City ofChicago, 210 F.3d 779 (7th Cir. 2000) ..................................................................3

.French v. Owens, 777 F.2d 1250 (7th Cir. 1985) .......................................................................... 16

Godinez v. Lane, 733 F.2d 1250 (7th Cir. 1984) ..................................................................... 10, I I

Goodman v. Carter, 2001 WL 755137 (N.D. Ill. 2001) .................................................................. &

Harris v. Garner, 190 F.3d 1279 (11rh Cir. 1999) ....................................................................... .18

Hart4ield v. Vidor, 199 F.3d 305 (6th Cir. 1999) ...........................................................................8

Henderson v. Lane, 979 F.2d 466 (7th Cir. 1992) ......................................................................... 15

Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 1999) ..................................................................... ]

Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002) .............................................................................. 11

Hudson v. Palmer, 468 U.S. 517 (1984) ........................................................................................ 13

lneco v. City (if-Chicago, 286 F.3d 994 (2002) ..............................................................................18

Jernigan v. Stuchell, 304 F.3d 1030 (lOth Cir. 2002)......................................................................7

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) ..............................................................................2

Jones v. DeTella, 12 F.Supp.2d 824 (N.D. Ill. 1998) ...................................................................... &

Kearsey v. Williams, 2002 WL 1268014 (S.D.N.Y. 2002) .............................................................. 8

Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) ................................................................................. 3

Lewis v. Casey, 518 U.S. 343 (J 996) ............................................................................................. 15

Iewis v. Washington, 300 F.3d 829 (7th Cir. 2002) ................................. ................................. ?

Lucien v. Godinez, 814 F. Supp. 754 (N.D. Ill. 1993) ............................................................ 17

Martinez v. Williams, !86 F.Supp.2d 353 (S.D.N.Y. 2002) ............ ....

............................ 8

Massey v. Helman, 196 F.3d 727 (7th Cir. 1999) ........................................................................... ?

Maust v. Headley, 959 F.2d 644 (7th Cir. 1992) .......................................................................... 13

II

Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 22 of 23 PageID #:99
Mayoral v. Sheahan, 245 F. 934 (7th Cir. 2001) .............................................................................3 McCoy v. Gilbert, 270 F.3d 503 (7th Cir. 2002)............................................................................7 Mendozav. Goard, 2002 WL 31654855 (S.D.N.Y. 2002) ............................................................:.8 Mitchell v. Horn, 318 F.3d 523 (3rd Cir. 2003) ............................................................................. 18 Murphy v. Hunt, 455 U.S. 478 (1982) ......................................................................................... 1 Murrayv. Artz, 2002 WL 31906464 *4 (N.D.lll. 2002).............................................................9 Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002) .............................................................................. 18 Paige v. Hudson, 234 F.Supp.2d 893 (N.D. Tnd. 2002) ...................................................................2 Perez v. Wisconsin Dep't ofCorrections, 182 F.3d 532 (7th Cir. 1999) .....................................3, 6 Porter v. Nussle, 534 U.S. 516 (2002) ...................................................................................... .3, JO Pozo v. McGaughtry, 286 F.3d 1022 (7th Cir. 2002) .......................................................... 5, 6, 7, 8 Reyes v. Funza!, 206 F.Supp.2d 431 (W.D.N.Y. 2002) ...................................................................8 Robinson v. City ofChicago, 686 F.2d 959 (7th Cir. 1989) .......................................................... 1 Sandin v. Conner, 515 U.S. 472 (1995) ................................................ ...... ...................... .......... 14 Stglar v. Jiightower, 112 F.3d J91 (5th Cir. 1997) ........................................................................ 18 Smith v. Shettle, 946 F.2d 1250 (7th Cir. 1991)............................................................................ 13 Strong v. David, 297 F.3d 646 (7lh Cir. 2002) ............................................................................ &, 9 Thielman v. Leen, 282 F.3d 478 (7th Cir. 2002) ...................................................................... 14, 15 Thomas v. Ramos, !30 FJd 754 (7th Cir. 1997) ........................................................................... 16 Washington v. Harper, 494 U.S. 210 (1990) ................................................................................. 12 Washing/On v. LaPorte County Sheriff's Office, 306 F.3d 515 (7th Cir. 2002)...............................3 Waters v. Schneider, 2002 WL 727025 (S.D.N.Y. 2002) ................................................................ 8 Weiss v. Cooley, 230 F.3d 1027 (7th Cir. 2000) ............................................................................3 Whitmore v. Hurley, 2002 WL 2012469 (N.D. Ill. 2002) ................................................................ 8 Young v. County of Winnebago, 2003 WL 1475384 (N.D. Ill. 2003) ........................................... 17
\11

Case: 1:03-cv-01768 Document #: 12 Filed: 05/08/03 Page 23 of 23 PageID #:100 Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997) .............................. ··················---···················-- .... 17
IV

 
 Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 1 of 13 PageID #:212

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

030CT -2 Af,ll Ml

Q.
..l'

(U'i<y.

L. 1.S.

'("'"LI~tn~J{
DISIR!cf

COUF~T

~/

Genise Hart, Carmen Feliciano, Ann Francis Gelco, Helen Koss Caprice Morales and Michelle Gandy, individually and and on behalf of a class,
Plaintiffs
VS.
MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, in his official capacity,
Defendant

)

)

)

) )

i){}t\\tlt\1

) )

oc1 Q ~ 1GG3

)

No. 03 C 1768

)

)

JUDGE: James Zagel

)

MAGISTRATE: Ashman

)

)

)

)

)

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO DISMISS Now come the Plaintiffs, Genise Hart, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Caprice Morales and Michelle Grandy, by and through their attorneys, Thomas G. Morrissey, Ltd., and Robert H. Farley, Jr. Ltd., and file the following response to defendant's Motion to Dismiss. I. INTRODUCTION The plaintiffs in this case are current or former pretrial detainees at the Cook County Department of Corrections ("Jail"). As pretrial detainees at the Jail, the plaintiffs are subject to weekend lock downs each month and are confined to their cells starting at 1:30 p.m. on Friday afternoons through late on Sunday afternoons. During the lock downs, correctional officers
1

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 2 of 13 PageID #:213
search the tiers and cells of the housing unit, looking for contraband. It takes anywhere from twenty to forty minutes for a team of correctional officers to search a tier. (2"d Amended Comp. par. 17). Plaintiffs contend that the prolonged length of the lock downs serve no legitimate administrative purpose, are harsh and abusive and amount to punishment of pre-trial detainees.
On June 3, 2003, the plaintiffs presented a Motion to File a Second Amended Complaint and the Court set a briefing schedule. In setting a briefing schedule for defendant's current motion to dismiss on September 11, 2003, the Court stated that the plaintiffs are permitted to rely on their Second Amended Complaint in responding to defendant's motion to dismiss.
II. PLAINTIFFS' HAVE STATED A CLAIM UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT USING THE BELL STANDARD
The Supreme Court and the Seventh Circuit have drawn a distinction between challenges made by pretrial detainees to the "general practices, rules, and restrictions of pretrial confinement," (the Bell standard) and individual challenges made by pretrial detainees to the denial of their "basic human necessities" (the deliberate indifference standard). Tesch v. County ofGreen Lake, 157 F.3d 465, 474 (7th Cir. 1998). Although the defendant agrees that the plaintiffs have stated a claim under the Due Process Clause, he argues that in reality there is very little difference between a claim brought by a pretrial detainee under the Fourteenth Amendment and the Eighth Amendment when the actions of the Jail are analyzed under a deliberate indifference standard.. (Def. Memo. P.2). In Bell v. Wolfish, 441 U.S. 520 (1979) a pretrial detainee may be detained "to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment or otherwise violate the Constitution." Bell at 536-537. "[U]nder
2

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 3 of 13 PageID #:214
the due process clause, a detainee may not be punished prior to an adjudication of guilt in
accordance with due process oflaw." (fn. 16-Bell).
The issue whether a Fourteenth Amendment claim by a pretrial detainee should be
governed under Bell or under the deliberate indifference standard turns on whether the claim
challenges the general practices, rules and restrictions of pretrial confinement or whether it is
asserting a claim involving an isolated instance, for example, where there has been a denial of
medical care, risk of suicide or risk of harm from other inmates. Tesch v. County ofGreen Lake,
157 F.3d 465, 474 (7u. Cir. 1998). In Tesh, the Seventh Circuit stated that:
The Bell test works well to assess constitutional attacks on general practices, rules, and restrictions of pretrial confinement when the jail official's state of mind is not a disputed issue. See Hare v. City ofCornith, 74 F.3d 633, 644 (5'h Cir. 1996) (en bane). When the State imposes a general practice, rule, or restriction of pretrial confinement, it manifests its intent to subject all pretrial detainees to that practice, rule, or restriction. Similarly, even in situations in which the State does not mean to deny basic human necessities, we infer the State's intent when the restriction and its effect on pretrial detainees are known and the State imposes the restriction on pretrial detainees anyway. See id,; see generally Shobe, 93 F.3d at 421; Wilson, 83 F.3d at 875. Thus, an appropriate Bell test case 'starts with the assumption that the State intended to cause the pretrial detainees's alleged constitutional deprivation." Hare, 74 F.3d at 644-45. 1
Tesch at 474-476.
As previously stated, the plaintiffs' lawsuit challenges the constitutionality of the general
practice and conditions of confinement during weekend lockdowns and therefore should be
considered under the Bell standard.
1 "When, by contrast, a pretrial detainee's claim of failure to provide medical care or protection from violence does not challenge a condition, practice, or restriction, but rather attacks the episodic acts or omissions of a state jail official, the question is whether that official breached his constitutional duty to tend to the basic human needs of persons in his charge. With episodic acts or omissions, intentionality is no longer a given, and Bell offers an ill-fitting test." Hare v. City ofCornith, 74 F.3d 633, 645 (5'h Cir. 1996).
3

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 4 of 13 PageID #:215
III. ADMINISTRATIVE GRIEVANCE EXHAUSTION The Sheriffs Memorandum of Law in Support of his Motion to Dismiss is focused primarily on the issue of whether plaintiff Helen Kos failed to exhaust her administrative grievance. (Def. Memo. p. 3-10) On December 16,2002, plaintiffKos filed a grievance stating that " I would like to know what can be done about lock down weekends. I feel it is unconstitutional and unfair." (2nd. Amend. Comp. par. 26.) The parties agree that the Jail never responded to her grievance concerning weekend lock downs. Defendant contends that the plaintiff then had an obligation to Appeal to the Grievance Appeal Panel when she received no response to her grievance. (Def. Memo. p. 7). The John Howard association serves as the monitor of the grievance process at the Jail. According to the Director ofthe John Howard Association, Charles A. Fasano, the Grievance Appeals Panel did not exist during the year 2002 and therefore was not available to Ms. Kos. (2'd Amend Comp. par. 28). Even assuming Mr. Fasano, as the Court appointed monitor for the grievance process, was mistaken in regards to the existence of the Grievance Appeals Panel at the time plaintiffKos's grievance was filed, Plaintiff Kos, a seventeen year old inmate at the Jail, should not be faulted for not being aware of the possible existence of the Grievance Appeal Panel. In addition, the plaintiffs' allege in their Second Amended Complaint that caseworkers at the Jail initially review the written grievances submitted by inmates, and reclassify certain types of grievances as request. (2nd Amend. Comp. par. 24). If a written grievance is reclassified as a request, it is not administratively treated as a grievance, and therefore falls outside the grievance procedures at the Jail. (2'd Amend Comp. par. 24.) Plaintiffs allege that written grievances challenging weekend lock downs are routinely
4

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 5 of 13 PageID #:216
reclassified as request and not as grievances. In one instant, Carol Merriweather, an inmate at the Jail filed a written grievance concerning lock down weekends, which was reclassified as a request by a caseworker. The reclassification was then approved by Superintendent Harrison from Division Four (2nd Amend Comp. par. 25). Plaintiffs' Second Amended Complaint has pled sufficient facts to as to the nonexistence of the grievance process for challenging the weekend lock downs .
Under the Prison Litigation Reform Act, inmates need to exhaust only available administrative remedies. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002); Miller v. Norris, 247 F.3d 736, 740 (8'h Cir. 2001) See Davis v. Milwaukee County, 225 F.Supp.2d 967, 976 (E.D. Wise. 2002) ("even if plaintiff had known about the PLRA, the absence of materials at the jail about the grievance procedure itself would have prevented him from knowing how to fully exhaust."); Hall v. Sheahan, 2001 U.S. Dist. LEXIS 1194 at *3-4 (N.D. Ill. 2002) ("An institution cannot keep inmates in ignorance of the grievance procedure and then fault them for not using it. A grievance procedure that is not made known to inmates is not an 'available' administrative remedy.")
Helen Koss filed a grievance and was not required to file an appeal of the unanswered grievance. Helen Koss exhausted the available administrative remedies. See Whitmore v. Hurley, 2002 U.S. Dist. LEXIS 16352 (N.D. Ill. 2002) (Zagel, J.) (rejecting Jail's argument that a pretrial detainee who filed a grievance which went unanswered must file an appeal to exhaust all available administrative remedies under the PLRA).
5

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 6 of 13 PageID #:217
IV. PROLONG WEEKEND LOCK DOWNS SERVE NO LEGITIMATE
PENOLOGICAL OBJECTIVE AND AMOUNT TO PUNISHMENT The crux of defendant's argument that plaintiffs' have no basis to challenge the constitutionality of the weekend lock down searches is based upon the Jail's legitimate interest in searching the tiers inside the housing units for weapons and contraband. (Def. Memo. p. 2 & 12). This simplistic rationale for week end lock downs demonstrates either an error in comprehending or unwillingness to accept the nature of plaintiffs' claims. The plaintiffs clearly are not challenging the Jail officials right to conduct searches of the living quarters of the Jail. (2nd Amend. Comp. par. 2). The plaintiffs are challenging the arbitrary and purposeless practice of confining pretrial detainees for up to 50 hours in their cells, when it takes less than forty minutes to conduct a search of a tier.2 Furthermore, the women remain on lock down after their tiers are searched even though it is impossible to either enter or leave a tier without passing through a set of interlock doors. (2nd Amend Comp. par.l4, 17, 18). The harshness of the excessive lock down detentions is exasperated not only by the fact that normally three women are confined to a cell which was designed for only two inmates but also due to the fact that many of the women detained in Division Three are suffering from physical and/or psychological conditions. Over the course of a prolonged weekend lock down, it is common for some of these women to become a danger to themselves or to the other detainees in the cell. (2nd Amend Comp. par.8, 19, 39).
2 Defendant's citations to Smith v. Shettle, 946 F.2d 1250, 1252 (7'h Cir. 1991) and Caldwell v. Miller, 790 F.2d 589, 604-05 (7'h Cir. 1986) which affirm the right of prison officials to hold convicted prisoners under lock down conditions is inapplicable to the arbitrary and purposeless lock downs of the pretrial detainees in the instant case. "Even assuming that the lock down restrictions are permanent, it cannot be said that they brought about conditions of confinement that are qualitatively different from the punishment characteristically suffered by a convict." !d. at 604.
6

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 7 of 13 PageID #:218
In Zarnes v. Rhodes, 64 F.3d 285, 291 (7'h Cir. 1995), a case filed by an inmate under
the Fourteenth Amendment, the Circuit Court stated:
The government lawfully can incarcerate persons awaiting trial on criminal charges but cannot punish them, Bell, 441 U.S. at 534-35, so courts must determine whether the conditions of confinement are imposed with an intent to punish or only pursuant to a legitimate administrative purpose. !d. at 53 8. "If a restriction is not reasonably related to a legitimate goal- -if it is arbitrary or purposeless- -a court permissibly may infer that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees." !d. at 539.
In May v. Sheahan, 226 F. 3d 876, 884 (7'h Cir. 2000), the plaintiff, a pretrial detainee at
Cook County Jail was transferred to Cook County Hospital for treatment for AIDS . While at the
hospital, pursuant to the Sheriff's policy of shackling hospital detainees, the plaintiff was
shackled to his bed despite being guarded 24 hour a day. The plaintiff alleged under the due
process clause of the Fourteenth Amendment that the use of bodily restraints amounted to
punishment of a pretrial detainee. In response to the Sheriffs argument that shackling hospital
detainees is rationally related to legitimate security interest, the Seventh Circuit stated:
Certainly, shackling all hospital detainees reduces the risk of a breach of security and thus furthers a legitimate non-punitive government purpose. But it is hard to see how shackling an AIDS patient to his or her bed around the clock, despite the continuous presence of a guard, is an appropriate policy for carrying out this purpose. Such a policy is plainly excessive in the absence of any indication that the detainee poses a security risk. !d. at 884.
During prolonged weekend lock downs, the inmates are confined to their cells for a time
period greater than if they were being punished and placed in solitary confinement. During
solitary confinement the inmates are released from their cell for one hour during the day and
allowed to shower and use the phone. ( 2"ct Amend. Camp. par. 19-20). During the weekend
7

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 8 of 13 PageID #:219
lock downs, inmates remain in their cells for excess of 50 hours. The prolong weekend lock down at the Jail is similar to the harsh response condemned by the Supreme Court in Bell v. Wolfish, 441 U.S. 539, n.20 where the Court stated:
Loading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish. The current prolonged weekend lock down procedures at the Jail amounts to punishment of the pretrial detainees and violates their Fourth and Fourteenth Amendment rights 3 In the instant case, the Defendant's harsh and purposeless practice of confining all pretrial detainees in their cells from Friday afternoons trough Sunday evenings despite the fact that it takes at most forty minutes to search a tier, serves no legitimate administrative purpose and amounts to punishment of the pre-trial detainees. Even the court appointed monitor of the Jail, Mr. Fasano, acknowledged in his deposition that are no legitimate penological interests being served by the current prolong weekend lock down procedures at the Jail. ( 2"d Amend Comp. par. 30). V. DEFENDANT'S "ATYPICAL AND SIGNIFICANT HARDSHIP" STANDARD APPLIES TO CONVICTED PRISONERS AND NOT PRETRIAL DETAINEES
3 The defendant's reliance on Antonelli v. Sheahan, 81 F. 3d 1422 (7'h Cir. 1995), is misplaced as Antonelli simply challenged per se lock downs as being arbitrary and capricious without more. The plaintiffs in this case do not challenge the right of the defendant to conduct lock downs but challenge the reasonableness of prolonged weekend lock downs which serve no justifiable administrative purpose at the Jail and amount to punishment of the pre-trial detainees.
8

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 9 of 13 PageID #:220
Defendant's argument that in order to state a due process claim under the Fourthteenth Amendment, "plaintiffs must demonstrate that the random weekend lock down imposes an "atypical and significant hardship" on them which is significantly different from the ordinary incidence oflife in county jail" is wrong. (Def. Memo p.14-l5). Defendant's reliance on Thielman v. Leen, 282 F. 3d 478 (7t'n Cir. 2002) is misplaced. The Seventh Circuit in Thielman stated that under the Fourteenth Amendment, liberty interests can be based under the Federal Constitution or in limited circumstances it may derive from a procedural claim under state law. !d. at 480-484. The statue under which Thielman was claiming a liberty interest permitted the use of restraints while transporting involuntarily committed sexual offenders under Wisconsin law. The Court found that Theilman's incremental complaints of the security measures used while he was transported were not "atypical and significant hardships" in relation to his confinement as a sexually violent person and therefore he did not have a state created liberty interest. Id. 484. The Court's holding in Theilman did not involve pretrial detainees substantive due process right not to be subjected to any form of punishment for the crime in which they are being held. I d. at p. 484, fn.3.
The defendant attempts to blur the distinction between convicted prisoners and pretrial detainees when he argues that his weekend lockdowns do not constitute "an atypical or significant hardship in relation to the ordinary incident of prison Life." See Sandin v. Connor, 515 U.S. 472. 484 (1994). Pretrial detainees may not be placed in punitive lockdowns as a condition of their confinement of being charged with a crime. Buck v. Lake County Sheriff, 2003 US. Dist. Lexis 16048, (Gottscall, J.). The Seventh Circuit clarified the distinction between convicted prisoners and pretrial detainees in Rapier v. Harris, 172 F. 3d 999, 1004 (7'h Cir.
9

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 10 of 13 PageID #:221
1999), as follows: Unlike sentenced prisoners for whom much institutional punishment can be considered to be within the parameters of the imposed sentence of confinement, see Sandin v. Connor, 515 U.S. 472,484 132 L. Ed. 2d 418, 115 S.Ct. 2293 (1995), pretrial detainees, serving no sentence and being held only to answer an accusation at trial, have no expectation that simply by virtue of their status as pretrial detainees, they will be subjected to punishment. Indeed, in Sandin, the Supreme Court explicitly stated that "Bell correctly noted that a detainee "may not be punished prior to an adjudication of guilt in accordance with due process oflaw" Sandin, 515 U.S. at 484 (quoting Bell, 441 U.S. 520 at 535)
The defendant may not impose weekend lockdowns on the plaintiffs which are excessive in
relation to the limited amount of time required to search a tier, simply as a condition of their
confinement because pretrial detainees by the nature of their status are not serving sentences. !d.
at 1004.
VI. THE CONDITIONS RESULTING FROM THE LOCKDOWNS AMOUNT TO PUNISHMENT
The plaintiffs allege that the conditions under which they are confmed during lockdown
weekends are much harsher and more severe than the conditions imposed on inmates that are
placed in solitary confinement as a result of disciplinary segregation. For instance, pretrial
detainees placed in disciplinary segregation are permitted each day to shower, to use the day
room for one hour, to exercise and are provided access to the telephone. (2"d Amend Comp. par.
20). Defendant cites a series of cases brought by convicted prisoners for the proposition that the
deprivation of certain cultural amenities for convict prisoners such as access to showers, phones,
and exercise do not arise to constitutional violations. (Def. Memo. p 15-16). Defendant fails to
cite any case which would support the facts here where pretrial detainees are punished by being subjected to conditions more severe than detainees placed in disciplinary segregation.
10

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 11 of 13 PageID #:222
VII. PLAINTIFFS HAVE STATED A CLAIM FOR DAMAGES AGAINST THE SHERIFF
The Prison Litigation Reform Act applies only to individuals who are incarcerated at the time a case is filed. Plaintiffs Hart, Gelso, Morales and Gandy were not in custody at the time this litigation was filed and therefore the PLRA does not prevent them from pursing damage claims for emotional as well as physical injuries suffered as a consequence of the weekend lockdowns. Kerr v. Puckett, 138 F.3d 321, 323 (7"' Cir. 1998). As previously stated herein, the Defendant's position that the plaintiffs have failed to assert that the Sheriff has an unconstitutional practice and/or policy which cause the deprivation of the plaintiffs rights is without merit. (Def. Memo. p. 18.) Plaintiffs have alleged that the Sheriff has instituted, sanctioned and approved the weekend lockdown practice and policy and was deliberately indifferent to the rights of the plaintiffs. (2nd Amend Comp. par 52-53). Finally, the plaintiffs have alleged that as a proximate cause of the weekend lockdown practice and policy, they have suffered physical and emotional damages.
Wherefore, the Plaintiffs request that this Court deny the Defendant's Motion to Dismiss the Complaint.
11

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 12 of 13 PageID #:223
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0195 Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-238-0924
12

Case: 1:03-cv-01768 Document #: 31 Filed: 10/02/03 Page 13 of 13 PageID #:224

CERTIFICATE OF SERVICE

I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he served a copy of the foregoing Plaintiffs Response To Defendant's Motion To Dismiss by mailing and faxing a copy to the persons listed below on October 2, 2003.

SERVICE LIST

Steven Puiszis Robert Shannon Hinshaw & Culbertson 222 North LaSalle Street Chicago, IL 60601-1081 Fax: 312-704-3001

Patrick T. Driscoll, Jr. Louis R. Hegeman Office of the State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 Fax: 312-603-5735

at/? r\'·L /~/1

1
• c

.

.. j
i . jI

Robert H. Farley, r.

/

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-0105
Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387
13

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No: 04-1443
GENISE HART, et. al., Plaintiffs-Appellants, v.
MICHAEL SHEAHAN, et. al., Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. The Honorable James Zagel, Judge Presiding.
BRIEF OF PLAINTIFFS-APPELLANTS
ROBERT H. FARLEY, JR. 1155 S. Washington Street Naperville, Illinois 60540 Phone: 630-369-0103 Fax: 630-369-0195 farleylaw@aol.com THOMAS G. MORRISSEY. 10249 S. Western Avenue Chicago, Illinois 60643 Phone: 773-233-7900 Fax: 773-239-0387
ATTORNEYS FOR PLAINTIFFS-APPELLANTS

DISCLOSURE STATEMENT

The undersigned, one of the counsels for Plaintiffs-Appellants, furnishes the following in
compliance with Circuit Rule 26.1:
(1) The full name of the party represented by the undersigned counsels is Genis Hart, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Caprice Morales and Michelle Gandy, individually and on behalf of a class.

(2) The names of all the attorneys who represent the Plaintiffs-Appellants are:

Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, Illinois 60540 Phone: 630-369-0103 Fax: 630-369-0195 farleylaw@aol.com

Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, Illinois 60643 Phone: 773-233-7900 Fax: 773-239-0387

(3) None of the Plaintiffs-Appellants are a corporation.

______________________________ One of the Attorneys for the PlaintiffsAppellants

i

TABLE OF CONTENTS
Disclosure Statement .............................................................................................. -i-
Table of Contents ................................................................................................... -ii-
Table of Authorities .............................................................................................. -iv-
Jurisdictional Statement ........................................................................................... 1
Statement of the Issues ............................................................................................. 2
Statement of the Case................................................................................................ 3
Statement of Facts.................................................................................................... 5
1. The “Jail” Detention Facilities For Women.............................................. 5
2. “Jail” Weekend Lockdowns.......................................................................5
3. The Plaintiffs..............................................................................................6
4. The Unreasonableness; Abusiveness and Punitive Conditions of Weekend Lockdowns.........................................................................8
5. Additional Facts Raised By The Plaintiffs in the Third Amended Complaint Which Are Consistent with the Factual Allegations in the Second Amended Complaint.................................................10
Summary of Argument.............................................................................................13
Argument..................................................................................................................14
Standard of Review.............................................................................................14
1. The District Court Erred In Dismissing Plaintiffs Claims That As Pretrial Detainees, The Defendant’s Prolonged And Abusive Non-Emergency Periodic Weekend Jail Lockdowns Violated Their Due Process Right Under The Fourteenth Amendment...................................................................14
2. The District Court Erred and Abused Its Discretion By Not Permitting The Plaintiffs To File A Third Amended Complaint After Granting The Defendants’ Motion To Dismiss .......................................................................23
ii

Conclusion............................................................................................................... 27 Certificate of Compliance with F.R.A.P. Rule 32(a)(7) ..........................................28 Circuit Rule 31(e)(1) Certification ...........................................................................29 Proof of Service .......................................................................................................30 Circuit Rule 30(d) Statement ...................................................................................31 Appendix Attached and Separate Appendix
iii

TABLE OF AUTHORITIES CASES Bell v. Wolfish, 441 U.S. 520 (1979)...........................................................................17, 18, 19 Doe v. Gustavus, 2003 U.S. Dist. LEXIS 21936 (N.D. Ill. 2003)..........................................26 Early v. Bankers Life and Casualty Company, 959 F.2d 75 (7th Cir. 1992)................15, 21, 24 Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996)............................................26 Farmer v. Brennan, 511 U.S. 825 (1994)..........................................................................21, 22 Foman v. Davis, 371 U.S. 178 (1962).....................................................................................23 Hart v. Sheahan, 2003 U.S. Dist. LEXIS 22867 (N.D. IL 2003).............................4, 16, 17, 22 Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002).........................................................................24 Hinson v. King & Spaulding, 467 U.S. 69 (1984)...................................................................15 Hudson v. McHugh, 148 F.3d 859 (7th Cir. 1998)...................................................................26 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163 (1993)....................................................................................................24 May v. Sheahan, 226 F.3d 876 (7th Cir. 2000)........................................................................18 Orion Tire Corp. V. Goodyear Tire & Rubber Co., 268 F. 3d 1133 (9th Cir. 2001)..............24 Perkins v. Silversein, 939 F.2d 463 (7th Cir. 1991).................................................................15 Perrian v. O’Grady, 958 F.2d 192, 194 (7th Cir. 1992)..........................................................14 Stanley v. Henson, 337 G.3d 961 (7th Cir. 2003)....................................................................16 Travel All Over the World, Inc. v. Kingdom of Saudia Arabia, 73 F.3d 1423
(7th Cir. 1996)........................................................................................................14, 24 Walker v. Thompson, 288 F. 3d 1005 (7th Cir. 2002)..............................................................24 Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995)..................................................................17, 19
iv

JURISDICTIONAL STATEMENT 1. The jurisdiction of the District Court is based on 28 U.S.C. Sections 1331, 2201 and 42 U.S.C. Sections 1983 and 1988. Plaintiffs brought this action pursuant to 42 U.S.C. Section 1983 and 1988 to enforce their Federal and Constitutional rights. Plaintiffs brought this action as a class action pursuant to Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure. The Plaintiffs sought injunctive relief and monetary relief to redress the Defendants violation of their Fourteenth Amendment Due Process Rights under the Federal Constitution. 2. The jurisdiction of the United States Court of Appeals for the Seventh Circuit is based on 28 U.S.C. Section 1291.
(i) On December 19, 2003, Final Judgment was docketed and the cause was dismissed pursuant to the Motion To Dismiss filed by the Defendant, Sheriff of Cook County.
(ii) On January 7, 2004, Plaintiffs filed a Motion To Alter or Amend the Judgment.
(iii) On January 29, 2004, the Order of the District Court was docketed denying the Plaintiffs Motion To Alter or Amend the Judgment.
(iv) On February 23, 2004, Plaintiffs filed a timely Notice of Appeal. (v) On March 2, 2004 Plaintiffs filed a Jurisdictional Memorandum with
United States Court of Appeals for the Seventh Circuit. On March 10, 2004 Plaintiffs filed a Supplemental Jurisdictional Memorandum with the United States Court of Appeals for the Seventh Circuit.
3. The Defendant, Michael Sheahan, Sheriff of Cook County is being sued in his official capacity. The current Sheriff of Cook County is Michael Sheahan.
1

ISSUES PRESENTED FOR REVIEW 1. Whether the District Court erred in dismissing Plaintiffs claims that as pretrial detainees, the Defendant’s prolonged and abusive non-emergency periodic weekend jail lockdowns violated their due process rights under the Fourteenth Amendment. 2. Whether the District Court erred and abused its discretion by failing to permit the Plaintiffs to file a Third Amended Complaint after granting the Defendant’s Motion to Dismiss.
2

STATEMENT OF THE CASE The Plaintiffs in this case are currently or have been pretrial detainees at the Cook County Department of Corrections (“Jail”). As pretrial detainees at the Jail, the Plaintiffs are subjected to weekend lockdowns which occur at least once a month. During these lockdowns, inmates are confined to their cells starting a 1:30 p.m. on Friday afternoon and are not released until late on Sunday afternoon. (Doc. 14-attachment at par. 1 - Second Amended Complaint)1 In the lawsuit, the Plaintiffs are not challenging the right of Jail officials to conduct random searches in the living quarters of the Jail and to impose lockdowns during emergencies. The Plaintiffs are challenging the reasonableness of regular, scheduled lockdowns which last up to fifty hours over the weekends and are imposed in a harsh and abusive manner by the Sheriff. These prolonged lock downs serve no justifiable administrative or penological purpose at the Jail and amount to punishment of the pre-trial detainees. During the prolonged lock downs, the Sheriff fails to protect pretrial inmates from harm from other inmates and fails to provide medical treatment. (Doc, 14-attachment at par 2, 19, 39, 41) Plaintiffs, as representatives of a class are seeking injunctive and monetary relief. (Doc. 14- attachment at par. 3) Plaintiffs filed a Motion for Class Certification. (Doc. 27) Plaintiffs filed a motion for a temporary restraining order to enjoin the Defendant from conducting non emergency prolonged weekend lock downs of the Plaintiffs under conditions which are unreasonable and done in an untimely manner and under conditions which do not protect inmates from harm from other inmates and under conditions where medical treatment is denied. (Doc. 5)
1 References to the record: “Doc” refers to the civil docket; “Tr” refers to the transcript of proceedins before the District Court; “App” are documents set forth in the Separate Appendix.
3

The Defendant informed the District Court that the Sheriff would not engage in any non emergency weekend lockdowns without first giving prior notice to the Court. (Tr. - June 3, 2003 at pages 5-6) While this case was pending before the District Court, no weekend lockdowns occurred. (Tr. December 3, 2003 at page 3) Upon information and belief, the Defendant resumed weekend lockdowns after the District Court dismissed Plaintiffs’ claims.
On December 19, 2003, the District Court granted the Defendant’s motion to dismiss the complaint pursuant to F.R.C.P. 12(b)(6) and denied all pending motions as moot. Hart v. Sheahan, 2003 U.S. Dist. LEXIS 22867 (N.D. IL 2003). On January 7, 2004, Plaintiffs filed a motion to alter or amend the judgment (Doc. 39); a motion to clarify the record (Doc. 37); and a motion to file a third amended complaint. (App. 1-62, Doc. 38) On January 28, 2004, the District Court denied the motion to alter or amend. (Doc. 43) On February, 10, 2004, the District Court denied Plaintiffs motion to file a third amended complaint as moot. (Doc. 44)
On February 23, 2004, Plaintiffs filed a timely notice of appeal. (Doc. 46)
4

STATEMENT OF FACTS 1. The “Jail” Detention Facilities For Women. At the time of the filing of the lawsuit, the Plaintiffs were either current or former female pretrial detainees at the Cook County Department of Corrections (“Jail”). (Doc. 14-attachment at par. 1)2 Division Three and Division Four are the two buildings at the Jail where female pretrial detainees are housed. (Doc. 14-A-par. 14) Each housing division is divided into self contained units called tiers. The tiers consist of a large day room, a shower area and a hallway with cells on each side of the corridor. In the day rooms, female pretrial detainees receive their meals, have access to pay telephones and are allowed to watch television. (Doc. 14-A-par. 14-15) At the entrance to each tier, there is an interlock area, which is staffed by a correctional officer and is the only means of entering and departing the tier. (Doc. 14-A-par. 14) There are only six tiers in Division Three and sixteen tiers in Division Four. (Doc. 14-A-par. 14) The correctional officer is able to observe from the interlock station, inmates in the day room to maintain security and protection for the inmates. (Doc. 14-A-par. 15) In Division Three and Four, the cells have solid steel doors with only a small opening. The correctional officer can not visual observe inmates from the interlock station after the inmates are locked in their cells. (Doc. 14-A-par. 16) When the female detainees are locked down in their cells, they are unable to communicate with the correctional officer stationed at the interlock when they are being physically attacked by their cell mates, and when they are in need of medical or psychological treatment. (Doc. 14-A-par. 19) 2. “Jail” Weekend Lockdowns. The Jail has a practice and/or policy of locking pretrial females inmates down in their cells
2 Plaintiffs will hereafter cite “Doc. 14-attachment at par. ” as Doc. 14-A-par. ” 5

once a month over a weekend starting at 1:30 p.m. on Friday and extending to late Sunday afternoon. (Doc. 14-A-par.18) Although it takes correctional officers anywhere from twenty minutes to forty minutes to search a tier, the female inmates still remain locked down in their cells after the search of their tier until late on Sunday afternoon despite the fact that there is no valid reason for this restriction. After the tier has been searched, they are still denied access to the day room where they normally receive their meals; denied access to the shower; and the pay phones. (Doc. 14-A-par. 3, 17, 18, 20 )
As many as three female inmates are confined to a cell for over fifty hours during the lock downs under “dungeon like” conditions. (Doc. 14-A-par.19,38) The female detainees are left to fend for themselves during these weekend lock downs because the correctional guard assigned to the tier is either absent or is unable to see or hear an inmates cry for help from the interlock monitoring station. (Doc. 14-A-par. 19, 38, 39, 40, 52 (C)) Furthermore, during weekend lock downs, the Jail fails to provide access to medical and/or psychological treatment for female inmates to prevent serious medical injuries. (Doc. 14-A-par. 39, 41, 52(D), 52(E))
3. The Plaintiffs. Plaintiff Gelso has been an inmate at the Jail on several occasions over the last two years and has been subjected to numerous weekend lockdowns while waiting trial. (Doc. 14-A-par. 10) During an incarceration in May, 2002, the Plaintiff Gelso was pregnant. On May 31, 2002, the lock down started at 1:30 p.m. (Friday), and she was confined with two other inmates to a cell, which had no lights until June 2, 2002 (Sunday). One of her cell mates was mentally ill, and during the course of the lock down, the cell mate became very violent towards Plaintiff Gelso and suicidal. The cell mate attempted to strangle herself and the Plaintiff Gelso and the other cell mate struggled to
6

restrain the women for a period of approximately 45 minutes before finally a correctional officer responded to their screams for assistance. During the course of this fight when the correctional guard was absent, Gelso was struck in the jaw by the suicidal cellmate and injured. (Doc. 14-A-par. 38-39)
Plaintiff Kos was an inmate at the time the complaint was filed. She had been incarcerated at the Jail since 2001 and had been subjected to numerous monthly prolonged weekend lock downs. (Doc. 14-A-par. 40) During a weekend lock down in April of 2002, the Plaintiff Koss was attacked by her cell mate and was struck numerous times which caused bruises and she had clumps of her hair pulled out of her head. During the entire period when she was being attacked, Ms. Koss yelled out for a correctional guard to help her, but the correctional guard was not at the interlock post. Finally after approximately ten minutes, an inmate worker located a correctional officer. When the officer finally arrived, the officer refused to take the Plaintiff Koss to receive medical treatment and told her to wash herself up. (Doc. 14-A-par. 41)
Helen Kos filed a written grievance on December 16, 2002, complaining about the weekend lock downs. Ms. Kos stated in her grievance, “I would like to know what can be done about lock down weekends. I feel it is unconstitutional and unfair.” The written grievance requests the “stopping lock downs.” There was no response by the defendant to the grievance filed by Ms. Kos. (Doc. 14-A-par. 26) Under the written administrative grievance procedures, detainees may take their grievance to The Grievance Appeal Panel if they do not receive a decision within five business days. Charles A. Fasano is the Director of the John Howard Association. The John Howard Association serves as the court appointed monitor of the grievance process at the Jail under the Duran v. Elrod, No. 74 C2949 consent decree. According to Charles Fasano, the appeals panel did
7

not exist in 2002. (Doc. 14-A-par. 27, 28) The Plaintiffs Hart, Feliciano, Morales and Gandy as pretrial detainees at the Jail were also
subjected to weekend lockdowns. (Doc. 14-A-par. 7-9, 12, 32-35, 42-43) 4. The Unreasonableness; Abusiveness and Punitive Conditions of Weekend Lockdowns. During weekend lockdowns, the female inmates are confined to their cells for a time period
greater than if they were being punished and placed in solitary confinement. During solitary confinement, the inmates are released from their cell for one hour during the day and allowed to shower and use the phone. (Doc. 14-A-par. 20) During weekend lock downs, inmates remain in their cells for in excess of 50 hours and are not permitted to shower, exercise outside their cell or have access to a pay phone to call their family or lawyer. (Doc. 14-A-par. 20).
During the prolonged lock downs, the Sheriff fails to protect pretrial inmates from harm from other inmates and fails to provide medical treatment. (Doc, 14-attachment at par 2, 19, 39, 41) The female detainees are left to fend for themselves during these weekend lock downs because the correctional guard assigned to the tier is either absent or is unable to see or hear an inmates cry for help from the interlock monitoring station. (Doc. 14-A-par. 19, 38, 39, 40)
Although it takes correctional officers anywhere from twenty minutes to forty minutes to search a tier, the female inmates still remain locked down in their cells after the search of their tier until late on Sunday afternoon. After their tier has been searched, they are still denied access to the day room where they normally receive their meals, and denied access to the shower and the pay phones. (Doc. 14-A-par. 3, 17, 18, 20 )
According to the Director of the John Howard Association, Charles Fasano, the weekend
8

lockdown practice at the Jail serves no legitimate penological interest. (Doc. 14-A-par. 30). This
conclusion by Mr. Fasano is supported by the brief filed by the Plaintiffs’ in this case in Response
to Defendant’s Objection to the filing of the Second Amended Complaint, which contained excerpts
from Mr. Fasano’s deposition testimony. (Doc. 17) The following observations were made by Mr.
Fasano, concerning the Jail’s lockdown practice:
(1) In Division 3, the inmates are housed in six tiers with two tiers on each floor. Mr. Fasona testified that it would be impossible for an inmate in the day room in one tier to pass contraband to another inmate in the other day room tier on the same floor. (Fasona Dep. at p. 23-24)
(2) In Division 4, there are four single tiers on each floor. It would not be feasible for an inmate in the day room on a single tier to pass contraband to any inmate in another tier on the same floor. (Fasano Dep. at p. 28-29)
(3) After a tier has been searched and after the tier directly above and/or below has been searched, there is no legitimate penological reason to continue to confine the female inmates to their cells and restrict them from using the day room. Furthermore, Mr. Fasano stated that to continue the lockdown of the tier after it has been searched is in conflict with good principals of correctional operation. (Fasona Dep. at p. 62-63)
(4) During a lockdown, before a tier has been searched, “[t]here is no legitimate penological objective” to deny a certain number of inmates from being released from their cell at one time while the other inmates remain locked up in their tier to take showers and use the phone while they are being viewed by the correctional staff. (Fasona Dep. at p. 61)
(5) Prolonged lockdowns based on his knowledge and experience at times cause inmates to suffer from mental distress; cause inmates to injure their cellmates; and cause inmates to set fires in their cell. Following a lockdown of 48 hours, it would be typical for inmates to have a higher number of requests for medical services than if they had not been on lockdown for that same period. (Fasona Dep. at p. 64-65)
(6) A 48 hour weekend lockdown for Division 3 is clearly excessive. It would be possible to conduct a routine shakedown of Division 3 in approximately 3-4 hours. (Fasona Dep. at p. 69-71)
9

(Doc. 17 at page 5-6 plus attachments of deposition testimony) 5. Additional Facts Raised By Plaintiffs in the Third Amended Complaint Which
Are Consistent with the Factual Allegations in the Second Amended Complaint. Division Three of the Jail houses women with special medical needs, including but not limited to inmates with severe mental illnesses; women in need of prenatal care; women in need of medical care; and women being treated for substance abuse. (App. 5 at par. 3, Doc. 38 - 3rd Amend Compl. at par. 3). Division Three has one of the highest ratios of correctional officers to inmates at the Jail and according to Director Fasano3 has more than sufficient staff to complete a search of the tiers in Division Three in under four hours. (App. 13-14 at par. 22, Doc. 38 - 3rd Amend Compl. par. 22). During weekend lockdowns in Division Three, a majority of the tiers are searched on Friday afternoons and the women remain on lockdowns until late on Sunday afternoon even though there is no legitimate penological reason for this practice. (App. 6, 15, 16, Doc 38 - 3rd Amend Compl. at par. 6, 26, 27 & Exhibit “A” attached to 3rd Amend Compl.). Sheila Vaughan is a correctional expert , and the former Bureau Chief of the New York City Department of Correctional Facilities. Ms. Vaughan inspected the Jail on March 27, 2003 and prepared a report regarding the weekend lockdown practices at the Jail. She agrees with Director Fasaono position that Division Three can be searched in under four hours, and that the current practices for weekend lockdowns in Division Three and Four serve no legitimate penological purpose. (App. 9-10, 20, 51-53, Doc. 38 - 3rd Amend Compl at par. 19, 41 & Exhibit “B” attached to 3rd Amend Compl.).
During lockdown weekends, the Sheriff is deliberately indifferent to providing medical
3 Charles Fasano is also a former administrator at the Cook County Jail. (App. 12, Doc. 38- 3rd Amend Compl at par.18).
10

and psychological care to female inmates with obvious medical and psychological needs. The Sheriff is also deliberately indifferent to providing protection to inmates from physical attacks by other inmates due to the fact that corrections officers do not monitor inmates while they are in lockdowns. (App. 5-6, Doc. 38 -3rd Amend Compl at par. 5). According to Director Fasano and Ms. Vaughan, there is a clear danger that inmates will be injured by a cell mate during a lockdown due to the fact that correctional officers can not see or hear inmates from their monitoring stations. (App. 11, Doc. 38 - 3rd Amend Compl at par. 24). Within the last two years, Director Fasano is personally aware of one person suffering a heart attack and one inmate delivering a baby during lockdowns. (App. 17, Doc. 38 - 3rd Amend Compl at par. 30). Furthermore, plaintiff Koss has assisted in the delivery of a cell mate’s baby during a lockdown weekend due to the fact that no guards were on duty when her cell mate went into labor. (App. 8-9, Doc. 38 - 3rd Amend Compl at par. 14).
Plaintiffs Felciano and Gelso also allege that on occasions they did not receive their medication during lockdowns. Ms. Feliciano is on medication for a bipolar disorder, and has experienced periods of extreme anxiety and depression during lockdowns. (App. 10, Doc. 38 - 3rd Amend Compl at par.11). Plaintiff Gelso suffers from a long standing mental illness which is treated by medication. During a weekend lockdown in Division Three, Ms. Gelso was pregnant and she was not provided with prenatal care or her medication for her mental illness. This caused her to become depressed, anxious and gave rise to suicidal thoughts. (App. 11, Doc. 38 - 3rd Amend Compl at par. 13).
There have been frequent suicide attempts over lockdown weekends. During the weekend starting on January 24, 2003, Antoinatte Davis became severely depressed and attempted to commit
11

suicide after her calls for assistance from the guards went unanswered. On July 14, 2002, inmate Joyce Owens threatened to kill herself and on the next day cut her wrist. (App. 17, 59-62, Doc. 38 3rd Amend Compl at par. 31 & Exhibit C).
Since the filing of the Plaintiffs Motion for a Temporary Restraining Order on March 12, 2003, the Jail had not conducted a weekend lockdown in either Division Three or Four.4 (App. 4, Doc. 38 - 3rd Amend Compl at par. 1)
4 Upon information and belief, the Defendant resumed weekend lockdowns after the District Court dismissed Plaintiffs claims.
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SUMMARY OF THE ARGUMENT The District Court erroneously dismissed Plaintiffs claims against the Defendant, although the Plaintiffs, as pretrial detainees, sufficiently pled and stated a claim against the Sheriff that the regular, scheduled non-emergency weekend lockdowns which last up to fifty hours over the weekends, are unreasonable and are imposed in a harsh and abusive manner by the Sheriff. The Plaintiffs pled that the prolonged lock downs serve no justifiable administrative or penological purpose at the Jail and amount to punishment of the pre-trial detainees. During the prolonged lockdowns, the Sheriff fails to protect pretrial inmates from harm from other inmates and fails to provide medical treatment. The Plaintiffs pled that Charles Fasano, the Director of the John Howard Association, and a Court appointed monitor at the Jail, found that the current practices and procedures followed for weekend lock downs at the Jail serve no legitimate penological objective. The District Court erroneously abused its discretion by not permitting the Plaintiffs to file a Third Amended Complaint after granting the Defendant’s motion to dismiss. The District Court found that the Plaintiffs motion to file the Third Amended Complaint was moot and failed to provide any further explanation for denying Plaintiffs leave to file.
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ARGUMENT STANDARD OF REVIEW Since the District Court granted the Defendants motion to dismiss the Plaintiffs claim under Rule 12(b)(6), the Circuit Court reviews the District Court’s decision de novo, accepting the well pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the Plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudia Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996). A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to relief. Id. at 1429-30. The Circuit Court reviews the District Court’s denial of the Plaintiffs motion to file a Third Amended Complaint as to whether the District Court abused its discretion. Perrian v. O’Grady, 958 F.2d 192, 194 (7th Cir. 1992).
1. The District Court Erred In Dismissing Plaintiffs Claims That As Pretrial Detainees, The Defendant’s Prolonged And Abusive Non-Emergency Periodic Weekend Jail Lockdowns Violated Their Due Process Rights Under The Fourteenth Amendment. A. Unconstitutional Conditions Of Confinement.
The Plaintiffs, as pretrial detainees, sufficiently pled and stated a claim against the Sheriff that the regular, scheduled non-emergency weekend lockdowns which last up to fifty hours over the weekends, are unreasonable and are imposed in a harsh and abusive manner by the Sheriff. The prolonged lock downs serve no justifiable administrative or penological purpose at the Jail and amount to punishment of the pre-trial detainees. During the prolonged lockdowns, the Sheriff fails to protect pretrial inmates from harm from other inmates and fails to provide medical treatment.
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(Doc. 14-A-par 2, 19, 39, 41) In ruling on the Defendant’s motion to dismiss, the District Court erroneously failed to
accept as true all well-plead allegations and draw all reasonable inferences in favor to the Plaintiffs’ that the prolonged weekend lockdowns serve no justifiable administrative or penological purpose.. A court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hinson v. King & Spaulding, 467 U.S. 69, 73 (1984). “Ambiguities in complaints in federal court should be interpreted in favor of plaintiffs; not defendants.” Early v. Bankers Life and Casualty Company, 959 F.2d 75, 79 (7th Cir. 1992). The Court must accept as true all well-plead allegations and draw all reasonable inferences in favor to the plaintiff. Perkins v. Silversein, 939 F.2d 463, 466 (7th Cir. 1991).
The District Court erred when it failed to accept as true the statement by Charles Fasano, the Director of the John Howard Association, and a Court appointed monitor at the Jail5, that the current practices and procedures followed for weekend lock downs in Division Three and Four at the Jail serve no legitimate penological objective. (Doc. 14-A-par. 27, 30) The Court also failed to accept as true, Plaintiffs’ allegations that after a tier is searched, there is no valid reason to continue the lockdown of the females in that tier. The tiers are self contained units with a housing unit and it is impossible to enter or leave a tier without first passing through a set of interlock doors. (Doc. 14-Apar. 3, 18) Nevertheless, the District Court erroneously concluded:
The CCDOC’s administrators and officials argue that both random
5 Charles Fasano is the Director of the John Howard Association, which is the court appointed monitor of the Cook County Jail in the Duran v. Elrod, No. 74 C 2949 consent decree. Mr. Fasano is also a former administrator at the Jail. (Doc. 14-A-par. 27).
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searches and weekend lockdown searches are necessary to decrease the risks posed by weapons and contraband. Since I do not wish to either second guess their judgment or try to tell them the best way to operate a prison, I find that, in light of the need to ensure security at the CCDOC, weekend searches are neither unreasonable nor excessive. The CCDOC’s policy of conducting weekend lockdown searches is permissible under the Bell standard and does not violate the Plaintiffs’ due process rights. Hart at 19. The District Court erroneously gave complete deference to the Sheriff when he found that the Sheriff’s practice and policy of locking down pretrial detainees in their cells for periods of up to 50 hours is “neither unreasonable nor excessive.” This finding by the District Court was premature, and prevented the Plaintiffs from presenting evidence to support their allegations that the prolong weekend lockdown practice was unreasonable, excessive, abusive, inflicted punishment on pretrial detainees and served no legitimate penological objective. “[W]hen considering the justifications offered by the jail, we are to give the decisions of prison officials substantial (though not complete) deference.” Stanley v. Henson, 337 G.3d 961, 966 (7th Cir. 2003). The deference accorded to the Sheriff by the District Court was in error because there was no evidence to support his finding, in contrast to Stanley v. Henson, where this Circuit Court applied the Bell standard only after the record was fully developed. In the present case, the District Court erroneously finds that 50 hour weekend lockdowns are neither unreasonable nor excessive in light of the security interest of the Jail. Hart at 19. The District Court ignored the Plaintiffs’ well pled allegations that the lockdowns were unreasonable, abusive and punitive to pretrial detainees. The District Court erroneously “[found]” the “weekend searches are neither unreasonable nor excessive.” Hart at 19. At the motion to dismiss stage of the proceeding, there was no factual record for the District Court to make this finding that locking down pretrial inmates for a period in
16

excess of 50 hours, after their tiers have been searched, is reasonable and not excessive. No evidence was presented by the defendants justifying this extended lockdown practice, and rebutting the plaintiffs allegations that the Jail fails to provide protection to inmates from attacks from other inmates during lock downs and fails to provide access to medical treatment. Instead, the District Court limited his analysis to finding that “weekend lockdowns serve a legitimate purpose unrelated to punishment” without considering whether the policy is excessive and whether the legitimate purpose could be achieved in a less harsh manner. Hart at 16. “Since I do not wish to second guess their judgment or try to tell them the best way to operate a prison, I find that, in light of the need to ensure security at the CCDOC, weekend searches is neither unreasonable or excessive.” Hart at 19.
The District Court committed error when it failed to consider whether the weekend lockdowns constituted punishment because the prolong lockdowns were excessive in relation to the limited purpose of searching the tiers for contraband. “If a particular restriction or condition is not reasonably related to a legitimate goal— if it is arbitrary or purposeless— a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees.” Bell v. Wolfish, 441 U.S. 520, 538 (1979). The weekend lockdowns which extend up to fifty hours and continue after the tiers are searched, are clearly excessive in light of the fact that Division Three has only six tiers and it takes at most forty minutes to search a tier for contraband. The Jail’s practice of maintaining a division on lockdown after the tiers are searched is arbitrary and purposeless. The lock downs are conducted under abusive and unsafe conditions, and the Jail fails to protect inmates from each other and provide access to medical attention for the pretrial detainees . (Doc. 14-A-par. 19, 38, 39, 40) Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.
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1995). The prolong weekend lock down at the Jail is similar to the harsh conditions condemned by
the Supreme Court in Bell v. Wolfish, 441 U.S. 539, n.20 where the Court stated:
Loading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.
In May v. Sheahan, 226 F. 3d 876, 884 (7th Cir. 2000), the plaintiff, a pretrial detainee at
Cook County Jail was transferred to Cook County Hospital for treatment for AIDS . While at the
hospital the plaintiff was shackled to his bed, despite being guarded 24 hour a day, pursuant to the
Sheriff’s policy of shackling all hospital detainees. The plaintiff alleged under the due process
clause of the Fourteenth Amendment that the restraints amounted to punishment of a pretrial
detainee. In response to the Sheriff’s argument that shackling hospital detainees is rationally related
to legitimate security interest, the Circuit Circuit stated:
Certainly, shackling all hospital detainees reduces the risk of a breach of security and thus furthers a legitimate non-punitive government purpose. But it is hard to see how shackling an AIDS patient to his or her bed around the clock, despite the continuous presence of a guard, is an appropriate policy for carrying out this purpose. Such a policy is plainly excessive in the absence of any indication that the detainee poses a security risk.
* * * Perhaps after some discovery Sheahan can produce evidence justifying both his shackling policy in general and his shackling of May in particular, but May’s allegations are more than adequate to survive a motion to dismiss. Id. at 884. (emphasis added)
In the instant case, the Plaintiffs have sufficiently pled that the Jail’ practice of locking down
pretrial detainees for up to 50 hours, and continuing the lockdowns after the tiers have been searched
and secured, is excessive and unreasonable. Furthermore, such a policy is excessive, given that
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during the lockdowns, the Plaintiffs can rarely be seen or heard by the correctional officials through
the steel cell doors and the Plaintiffs health and safety are endangered. (Doc. 14-A at par. 16, 19)
The Plaintiffs allege that the conditions under which they are confined during lockdown
weekends are much harsher and more severe than the conditions imposed on inmates that are placed
in solitary confinement as a result of disciplinary segregation. For instance, pretrial detainees
placed in disciplinary segregation are permitted each day to shower, to use the day room for one
hour, to exercise and are provided access to the telephone. (Doc. 14-A-par. 20) During the weekend
lockdowns, inmates remain in their cells for excess of 50 hours and are not permitted to use the day
room, showers, or public phone. (Doc. 14-A-par. 2) The prolong weekend lockdown practice at
the Jail is similar to the harsh, dungeon like conditions condemned by the Supreme Court in Bell
v. Wolfish, 441 U.S. 539, n.20. The current prolonged weekend lockdown procedures at the Jail
amounts to punishment of the pretrial detainees and violates their Fourteenth Amendment rights. In Zarnes v. Rhodes, 64 F.3d 285, 291 (7th Cir. 1995), a case filed by an inmate under the
Fourteenth Amendment, the Circuit Court stated:
The government lawfully can incarcerate persons awaiting trial on criminal charges but cannot punish them, Bell, 441 U.S. at 534-35, so courts must determine whether the conditions of confinement are imposed with an intent to punish or only pursuant to a legitimate administrative purpose. Id. at 538. “If a restriction is not reasonably related to a legitimate goal- -if it is arbitrary or purposeless- -a court permissibly may infer that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.” Id. at 539.
In the instant case, the Defendant’s harsh and purposeless practice of confining all pretrial
detainees in their cells from Friday afternoons through Sunday evenings, despite the fact that it takes
at most forty minutes to search a tier and the pretrial detainees remain on lockdown after their tier
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has been searched and secured, serves no legitimate administrative purpose and amounts to
punishment of the pre-trial detainees. Even the court appointed monitor of the Jail, Mr. Fasano,
acknowledged in his deposition that there are no legitimate penological interests being served by the
current prolong weekend lock down procedures at the Jail. (Doc. 14-A-par. 30)
In response to the Defendant’s objections to the filing of the Second Amended Complaint,
the Plaintiffs argued to the District Court that prolong weekend lock downs serve no legitimate
penological objective and amount to punishment. (Doc. 17 at page 4-7) The Plaintiffs referred the
District Court to excerpts from Mr. Fasano’s deposition testimony to show that there are facts within
the scope of the Second Amended Complaint that if proven would entitle the Plaintiffs to judgment.
(See Doc. 17 at page 5-6).
Charles Fasano made the following observations:
(1) In Division 3, the inmates are housed in six tiers with two tiers on each floor. Mr. Fasono testified that it would be impossible for an inmate in the day room in one tier to pass contraband to another inmate in the other day room tier on the same floor. (Fasono Dep. at p. 23-24)
(2) In Division 4, there are four single tiers on each floor. It would not be feasible for an inmate in the day room on a single tier to pass contraband to any inmate in another tier on the same floor. (Fasano Dep. at p. 28-29)
(3) After a tier has been searched and after the tier directly above and/or below has been searched, there is no legitimate penological reason to continue to confine the female inmates to their cells and restrict them from using the day room. Furthermore, Mr. Fasano stated that to continue the lockdown of the tier after it has been searched is in conflict with good principals of correctional operations. (Fasono Dep. at p. 62-63)
(4) During a lockdown, before a tier has been searched, “[t]here is no legitimate penological objective” to deny a certain number of inmates from being released from their cell at one time while the other inmates remain locked up in their tier to take showers and use the phone while they are being viewed by the correctional staff. (Fasono Dep. at p. 61)
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(5) Prolonged lockdowns based on his knowledge and experience at times cause inmates to suffer from mental distress; cause inmates to injure their cellmates; and cause inmates to set fires in their cell. Following a lockdown of 48 hours, it would be typical for inmates to have a higher number of requests for medical services than if they had not been on lockdown for that same period. (Fasono Dep. at p. 64-65)
(6) A 48 hour weekend lockdown for Division 3 is clearly excessive. It would be possible to conduct a routine shakedown of Division 3 in approximately 3-4 hours. (Fasono Dep. at p. 69-71) (Doc. 17 at page 5-6)
Although the reference to these six paragraphs from Mr. Fasono’s depositions testimony do
not appear in the Plaintiffs’ Second Amended Complaint, “a plaintiff is free, in defending against
a motion to dismiss, to allege without evidentiary support any facts he pleases that are consistent
with the complaint, in order to show that there is a state of facts within the scope of the complaint
that if proved (a matter for trial) would entitle him to judgment.” Early v. Bankers Life and Casualty Company, 959 F.2d 75, 79 (7th Cir. 1992).
Accepting the Plaintiffs factual allegations as true, for purposes of the motion to dismiss and
drawing all reasonable inferences in favor thereof, the Plaintiffs have sufficiently alleged facts which
could lead a fact finder to conclude that the periodic prolonged non-emergency weekend lockdowns
were conducted in an abusive manner that could reasonably be said to be punishment. It was error
for this Court to grant the Defendant’s motion to dismiss.
B. Constitutional Duty To Protect Inmates From Violence And Provide Medical Care.
The Sheriff has a constitutional duty to protect inmates from violence inflicted by other
inmates and to provide medical care. Farmer v. Brennan, 511 U.S. 825 (1994). In Farmer, the
Supreme Court held that, “Having incarcerated ‘persons [with] demonstrated proclivities for
21

antisocial criminal, and often violent, conduct,’. . . having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Id. at 833. Moreover, prison officials have a duty, in light of the Eighth Amendment’s prohibition against cruel and unusual punishment, to “ensure that inmates receive adequate food, clothing, shelter, and medical care.” Id. at 834
The District Court properly found that plaintiff Kos has standing to seek injunctive relief from the defendant because she was a pretrial detainee at the time the lawsuit was filed, and she had exhausted all administrative remedies before filing suit. Hart at 3, 7. Plaintiff Kos and the putative class, have sufficiently pled that during the weekend lock downs, the Sheriff has a practice of failing to protect inmates from harm from other inmates, and failing to provide needed medical and/or psychological treatment to pretrial inmates.6 (Doc. 14-A-par. 52 (C), 52 (D)). Plaintiff Koss was attacked by her cell mate during a lockdown and had clumps of her hair pulled out of her head. No correctional officer responded with a reasonable time for her cries of help as there were no officers at the interlock station. When the correctional officer finally arrived, the officer refused to take Koss to receive medical treatment. (Doc. 14-A-par. 41) In addition, Plaintiff Gelco was struck in the jaw and injured by a cellmate after the Plaintiff Gelco screamed for help and the correctional guards failed to timely respond during a lockdown.. (Doc. 14-A-par. 39)
The plaintiffs have alleged that as a result of the Sheriff practice of failing to protect inmates from harm from other inmates, and failing to provide needed medical and/or psychological
6 The District Court stated that if the Plaintiffs complaint survives the motion to dismiss, then it would be likely the Plaintiffs motion for class certification would be granted. (Tr. - October 7, 2003 at page 8) Moreover, the Defendants indicated that it may not oppose the motion for class certification. (Tr. - October 7, 2003 at page 8)
22

treatment to pretrial inmates, pretrial detainees are left to fend for themselves because the correctional guard assigned to the tier is either absent or is unable to hear or see the plaintiffs cry for help from the interlock monitoring station. (Doc. 14-A-par. 19, 39, 41) The Plaintiffs well pled allegations that the Sheriff shirks his constitutional duty to protect pretrial inmates from violence inflicted by other inmates and to provide medical care during prolong weekend lock downs, is sufficient to state a claim against the Sheriff for injunctive relief and damages.
II. The District Court Erred and Abused Its Discretion By Not Permitting The Plaintiffs To File A Third Amended Complaint After Granting The Defendants’ Motion To Dismiss
Rule 15 (a) of the Federal Rules of Civil Procedure provides that leave to amend should be freely given when justice so requires. In Foman v. Davis, 371 U.S. 178,182 (1962), the Supreme Court stated that “of course , the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” The District Court found that the Plaintiffs motion to file the Third Amended Complaint was moot and failed to provide any further explanation for denying plaintiffs leave to file. (Doc. 44 ). There is nothing in the record to show that the failure to allow the amended complaint would cause undue delay or undue prejudice to the Defendant or that the failure to allow the amendment would be an exercise of futility.
The Plaintiffs contend that the Second Amended Complaint stated a claim that the Defendants custom, policy or practice was the proximate cause of the deprivation of Plaintiffs' constitutional rights under the notice pleading requirement of Rule 8 (a) of the Federal Rules of Civil Procedure. The Supreme Court has held that there are no heightened pleading standards for
23

prisoner civil rights. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). “A complaint that complies with the Federal Rules of Civil Procedure cannot be dismissed on the ground that it is conclusory or fails to allege facts. The Federal Rules require (with relevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
In granting the Defendant’s Motion to Dismiss, the District Court erroneously made a factual finding that the Sheriff’s practice of locking pretrial detainees in their cells for up to 50 hours over a weekend was “neither unreasonable or excessive.” The factual finding was without any evidentiary support and the District Court abrogated his duty to accept Plaintiffs’ allegations in the Second Amended Complaint as true and draw all reasonable inferences in favor to the Plaintiffs. Travel All Over the World, Inc. v. Kingdom of Saudia Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996).
The Plaintiffs sought leave to file the Third Amended Complaint for the purpose of providing the District Court with additional facts, consistent with the Second Amended Complaint, in order to show that the complaint should not have been dismissed. Early v. Bankers Life & Ca. Co., 959 F. 2d 75, 79 (7th Cir. 1992). When an appealant offers possible amendments that are consistent with the dismissed complaint, and which could possibly state a claim, the complaint should not be dismissed. Orion Tire Corp. V. Goodyear Tire & Rubber Co., 268 F. 3d 1133 , 1137-38 (9th Cir. 2001); Walker v. Thompson, 288 F. 3d 1005, 1008 (7th Cir. 2002). In the Third Amended Complaint, the plaintiffs continue to allege that there is no legitimate penological purpose for the Sheriff’s weekend lockdown practice and alleged the following additional facts which were not contained in the Second Amended Complaint : (App. 4-62, Doc. 38 - 3rd Amend Compl.)
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a. Division Three of the Jail houses women with special medical needs, including but not limited to inmates with severe mental illnesses; women in need of prenatal care; women in need of medical care; and women being treated for substance abuse. (3rd Amend Compl. at par. 3)
b. The practice in Division Three is to search a majority of the tiers at the start of the lockdown on Friday afternoons. The inmates remain on lockdown until late on Sunday afternoon even though there is no legitimate penological reason for this practice. (3rd Amend Compl. at par. 6, 26, 27 & Exhibit “A” attached to 3rd Amend Compl.)
c. According to Director Fasano, Division Three has one of the highest ratios of correctional officers to inmates at the Cook County Jail, and has more than sufficient staff to complete searches in a prompt and efficient manner, in under four hours. Furthermore, Director Fasano stated that after the living units above and below a tier has been searched, there is no legitimate penological objective to continue a lockdown and the continuation of a lockdown is in conflict with correctional operations and is contrary to the standards in the correctional field. (3rd Amend Compl at par 22, 26)
d. Sheila Vaughan, a correctional expert , and the former Bureau Chief of the New Yourk City Department of Correctional Facilities , inspected the Jail on March 27, 2003 and it is her opinion that three hours is a sufficient time to search Division Three during a lockdown. It is Ms. Vaughan’s opinion and Mr. Fasano’s opinion that the current practices and procedures followed for weekend lockdowns in Division Three and Four serve no legitimate penological objective. (3rd Amend Compl at par. 9, 19, 41 & Exhibit “B” attached to 3rd Amend Compl.)
e. According to Director Charles Fasano, and Shelia Vaughan there is a clear danger that an inmate will be injured by a cellmate due to the fact correctional officers cannot see or hear inmates from their monitoring station if there is a lockdown. (3rd Amend Compl at par. 24)
f. According to Director Fasano and Ms. Vaughn, prolonged lockdowns cause inmates to suffer from mental distress; cause inmates to injure their cellmates; and cause inmates to set fires in their cell. Within the last two years, Director Fasano is aware of one person suffering a heart attack and one person delivering a baby during the lockdowns. (3rd Amend. Compl. at par. 30)
g. There have been frequent suicide attempts in Division Three and Four during lockdown weekends. During the weekend starting on January 24,
25

2003, Antoinatte Davis became severely depressed and attempted to commit suicide after her calls for assistance from the guards went unanswered. During a lockdown weekend on July 14, 2002, inmate Joyce Ownens threatened to kill herself and on the following day cut her wrist. (3rd Amended Compl. at par. 31, & Exhibit C). h. Plaintiff Koss’ has assisted in the delivery of a cellmate’s baby during a lockdown weekend due to the fact that no guards on duty to call for assistance when her cellmate went into labor. (3rd Amend. Compl. at par. 14) When the Jail’s policy is to identify and segregate ‘fragile’ pretrial female detainees with special medical needs, including women with severe mental illnesses; women in need of prenatal care; women in need of medical care; and women being treated for substance abuse (App. 5, Doc. 38 - 3rd Amend Compl at par. 3) into one Division, namely Division Three, the jail has a duty to ensure that these inmates are protected from the other ‘fragile’ inmates and receive medical care to address their serious medical needs, which the Jail has identified. The Courts have found the failure to prevent harm and the failure to address serious medical needs to include the need for a mental illness to be treated, Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir. 1998); to protect inmates from self-destructive tendencies - “suicide is a serious harm,” Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 21 (7th Cir. 1996); failure to provide medical assistance immediately preceding and during a birth, Doe v. Gustavus, 2003 U.S. Dist. LEXIS 21936 * 11 (N.D. Ill. 2003) The injuries suffered by the Plaintiffs and putative class members are not isolated instances but rather systematic occurrences which result from the weekend lockdown practices of the Sheriff during the weekend lockdowns. Director Charles Fasano of the John Howard Association acknowledge that based on his knowledge and experience, prolong lockdowns will cause inmates to injure their cellmates. (Doc 17, page 6, par.5)
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The Plaintiffs, as pretrial detainees, have sufficiently stated a claim against the Sheriff that the weekend lockdowns are conducted in an abusive, unreasonable and excessive manner which endanger the health and safety of the pretrial detainees and are conducted in a manner which serves no legitimate penological purpose and which could be accomplished in alternative and less harsh methods. The District Court erred in dismissing the Plaintiffs’ claims and erred in refusing to grant leave to file a Third Amended Complaint.
CONCLUSION The Plaintiffs request that this Court reverse the order of the District Court which dismissed the Plaintiffs claims or in the alternative, reverse the District Court and permit the Plaintiffs to file a Third Amended Complaint.

Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, Il. 60643 (773)-233-7900
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Naperville, Il. 60540 (630)-369-0103

Respectfully submitted, One of the Plaintiffs Attorneys
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CERTIFICATION OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undesigned, counsel of record for the Plaintiffs-Appellants, furnishes the following in compliance with F.R.A.P. Rule 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 8,121 words. Dated: April 29, 2004.
Robert H. Farley, Jr.
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CIRCUIT RULE 31(e)(1) CERTIFICATION The undesigned, counsel of record for the Plaintiffs-Appellants, furnishes the following in compliance with Circuit Rule 31(e)(1): The full contents of the brief, from the cover to the conclusion is provided in digital form. The appendix materials (short and separate) are not available on digital media. Dated: April 29, 2004.
Robert H. Farley, Jr.
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PROOF OF SERVICE The undersigned, counsel for the Plaintiffs-Appellants, hereby certifies that on April 29, 2004, two copies of the Brief and Required Short Appendix of Appellants and one copy of the Separate Appendix as well as a digital version containing the brief, were sent via federal express to counsel for the Defendants-Appellees. Dated: April 29, 2004
Robert H. Farley, Jr.
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CIRCUIT RULE 30(d) STATEMENT
Pursuant to Circuit Rule 30(d), counsel certifies that all material required by Circuit Rule
30(a) are contained in an appendix bound with the main brief as follows:
Appendix A contains the Minute Order of the District Court of February 10, 2004, denying Plaintiffs’ Motion for leave to file Third Amended Complaint as Moot. District Court entered order of dismissal in favor of Defendants and against Plaintiffs.
Appendix B contains the Minute Order of the District Court of January 28, 2004, denying Plaintiffs’ Motion to Alter or Amend the Judgment. .
Appendix C contains the Memorandum Opinion and Order decided December 18, 2003, granting the Defendant’s Motion to Dismiss.
All materials required by Circuit Rule 30(b) are contained in the appendix of the appellants
bound separately.

Dated: April 29, 2004

Robert H. Farley, Jr.

31

 
 Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 1 of 11 PageID #:534

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

Genise Hart, Cannen Feliciano,

)

Ann Francis Gelco, Helen Koss

)

Caprice Morales and

)

Michelle Gandy, individually and

)

and on behalf of a class,

)

)

)

Plaintiffs )

)

vs.

)

)

MICHAEL SHEAHAN,

)

SHERIFF OF COOK COUNTY,

)

in his official capacity, and

)

Cook County

)

Defendant

)

No. 03 C 1768
JUDGE: James Zagel MAGISTRATE: Ashman

NOTICE OF FILING To: See Service List
PLEASE TAKE NOTICE that on July 6, 2005, I filed with the United States District Court for the Northern District of Illinois, Eastern Division, a MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION.
Dated this 61h Day of July, 2005 at Chicago, Illinois. Respectfully submitted,

Plaintiffs' Counsels

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 2 of 11 PageID #:535

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

Genise Hart, Carmen Feliciano,

)

Ann Francis Gelco, Helen Koss

)

Caprice Morales and

)

Michelle Gandy, individually and

)

and on behalf of a class,

)

)

)

Plaintiffs )

)

vs.

)

)

MICHAEL SHEAHAN,

)

SHERIFF OF COOK COUNTY,

)

in his official capacity, and

)

Cook County

)

Defendant

)

No. 03 C 1768
JUDGE: James Zagel MAGISTRATE: Ashman

PLAINTIFFS' MEMORANDUM IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION Now come the plaintiffs, individually and on behalf of a class, by their attorneys, submit this Memorandum in Support of their Motion for Class Certification.
INTRODUCTION The Plaintiffs in this case are currently or have been pretrial detainees at the Cook County Department of Corrections ("Jail"). As pretrial detainees at the Jail, the plaintiffs are subjected to weekend lock downs which occur at least once a month. During these lock downs, inmates are confined to their cells starting a I :30 p.m. on Friday afternoon and are not released until late on Sunday afternoon. The plaintiff.~ are challenging the reasonableness of regular, scheduled lock

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 3 of 11 PageID #:536
downs which last up to fifty hours over the weekends and continue after their tiers have been searched at the Jail. These prolonged lock downs serve no justifiable administrative purpose at the Jail and amount to punishment of the pre-trial detainees.
CLASS DEFINITIONS Plaintiffs seek certification as a class action pursuant to Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure. There are two proposed classes: (i) For injunctive relief under Rule 23(b)(2) the class consist all pretrial female inmates at the Cook County Department of Corrections who have exhausted the available administrative remedies and who have been and/or will in the future be subjected to nonemergency, extended lock downs over a weekend after their tiers have been searched at the Jail. (ii) For relief under Rule 23(b){3) the class shall consist of all former female pretrial inmates at the Cook County Department of Corrections who had been subjected to nonemergency, extended lock downs over a weekend after their tier had been searched at the Jail and who were not incarcerated on March 11, 2003. The class shall also include those inmates who were incarcerated at the time of the filing and who had exhausted their available administrative remedies prior to March II, 2003.
ARGUMENT Parties seeking class action certification must first satisfY the provisions of Rule 23(a) of the Federal Rules of Civil Procedure. In addition, the case must fit within at least one of the three subcategories under Rule 23(b). Rosario v. Lividitis, 963 F.2d 1013, 1017 (71h Cir. 1992), cert.denied, 506 U.S. 1051, I 13 S.Ct.972 (1993). All four 23 (a) prerequisites are undoubtedly satisfied here, as this case falls within the 23 (b)(3) category.
2

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 4 of 11 PageID #:537
l. Plaintiffs have established the prerequisites for a class action pursuant to Rule 23(a) A. Numerosity
Numerosity is easily established in the present ca~e. Courts in this judicial circuit have certified classed with less than 50 members. Patrykus v. Gomills, 121 F.R.D. 357, 361 (N.D. Ill. 1988) (court certified a class of approximately 50 class members, stating that "the complaint need not allege the exact number or identity of class members"); Harris v. General Dev. Corp., 127 F.R.D. 655, 660 (N.D. Ill. 1989) (court held that numerosity was met when the plaintiffs demonstrated that at least 35 individuals were members of the proposed class); Swanson v. American Consumer Industries, 415 F.2d 1326, 1333, n.4 (7th Cir. 1996) (finding that a class of !51 was sufficient to certifY a class, but 40 would have been acceptable). Case law has also recognized that courts should make "common assumptions" to support a finding of numerosity. Grossman v. Waste Management, Inc., 162 F.R.D. 322, 329 (N.D. Ill. 1995). The numerosity requirement should be construed liberally in civil rights actions. Jones v. Diamond, 519 F.2d 1090, II 00 (5th Cir. 1975). Based on information provided by the defendant, the class exceeds I 0,000 female inmates. Thus, Plaintiffs' claims in the present case satisfies the numerosity requirement.
B. Commonality Commonality requires that there be one or more questions of law or fact common to the class. Fed. R. Civ. Proc. 23 (a) (2). This rule does not require that all questions of law or fact raised in the litigation be common. Port Auth. Police Benevolent Assn. V: Port Auth., 698 F.2d
3

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 5 of 11 PageID #:538
150, 153-4 (2"d Cir. 1983). There need only be a single issue common to all members of the class. Harris, 127 F.R.D. at 661.
In fact, "[w]hen the party opposing the class has engaged in some course of conduct that effects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected." Newberg on Class Actions, Sec. 3.1 0, p. 3-51. So long as one issue oflaw or fact is common to the class, "the presence of individual questions will not prevent satisfaction of the Rule 23 (a) (2) prerequisite." !d. at p. 360. See also Ivy v. Meridian Coco-Cola Bottling Co., 108 F.R.D. 118, 123 (S.D. Miss. 1985) (holding that commonality and typicality were satisfied in an employment discrimination case despite the defendant's argument that individual questions would predominate concerning each hiring decision); Patrykus, 121 F.R.D. at 361 (holding that "[d]ifferences in individual cases concerning treatment or damages does not defeat commonality"); Krislov v. Rednour, 946 F.Supp. 563, 568 (N.D. Ill 1996).
In this case, commonality is easily met because Defendants "engaged in some course of conduct that affects a group of persons and gives rise to a cause of action". Newberg on Class Actions, Sec. 3.1 0, p. 3-51. The proposed Fourth Amended Complaint states that all female inmates are subjected to weekend lock downs at least once a month. The commonality and predominance requirements are met here because there are questions of fact and law common to the class, which predominate over questions affecting only individual class members. Among the common questions of fact and law are the following:
(i) Whether there are prolonged, weekend lock downs which continue after the tier has been searched, each month at the Jail in the female housing units;
4

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 6 of 11 PageID #:539
(ii) Whether prolonged lock downs which continue after the tier has been searched, each month at the jail are related to a legitimate governmental interest; (iii) Whether the Sheriff has a duty, during prolonged weekend lock downs, to protect inmates from harm from other inmates; (iv) Whether the continuation of the lock downs by the defendants, after a tier has been searched, exposes pretrial detainees to unreasonable and "gratuitous infliction of pain or suffering"; (v) Whether the safety of female inmates is endangered during the prolonged weekend lock downs; (vi) Whether during the prolonged weekend lock downs the plaintiffs are able to receive appropriate medical and/or psychological treatment to prevent serious medical injuries; (vii) Whether the prolonged weekend lock downs which continue after a tier is searched constitutes punishment of pretrial detainees. C. Typicality Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. General Telephone Company ofSouthwest v. Falcon, 457 U.S. 147, 152 (1982). When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is met irrespective of varying fact patterns which underlie individual claims. Id; see also Robidoux v. Celani, 987 F.2s 931, 936-937 (2"d Cir. 1998); Baby Neal ex rei
5

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 7 of 11 PageID #:540
Kanter v. Casey, 43 F.3d 48, 56 (3'd Cir. 1994). Courts should look to the elements of the cause of action that the class representative must prove in order to establish the defendant's liability. If they are substantially the same as those needed to be proved by the class members' claims, the representative's claim is typical. Johns v. DeLeonardis, 145 F.R.D. 480, 483 (N.D. lll. 1992).
For example, in Patrykus v. Gomilla, 121 F.R.D. 357 (N.D. Ill. 1988), the plaintiffs brought a class action complaint alleging that government officers violated their civil rights. The complaint alleged that police and state officials busted into a bar frequented by homosexual and bisexual men, without warrants for any class members nor probable cause, and forced class members to lie face down on the floor for several hours, subjected them to unnecessary searches and photographs, compelled the class members to reveal detailed personal information and subjected the class members to homosexual slurs. The court certified a class because the claims asserted on behalf of all potential class members arose from the same course of conduct and were based upon the same legal theories. !d. at 362. According to the court, the fact that defendants hypothetically may assert individualized defenses, or that some class might not be homosexual or bisexual, has no bearing on the issue of typicality. !d. The court needed only to determine if the named representatives' claims had the same essential characteristics as the claims of the other members of the class. /d.
Here, Defendant cannot seriously contend that the Plaintiffs' claims are not typical of the proposed cla~s. The claims asserted on behalf of all potential class members arise from the same course of conduct and are based upon the same legal theories.
D. Adequacy of representation The two factors that are universally recognized as the guidelines for adequate
6

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 8 of 11 PageID #:541
representation are: 1) the representative must not have interests antagonistic to or conflicting with the interests ofthe class, and 2) the representative must appear able to prosecute the action vigorously through qualified counsel. Newberg on Class Actions, Sec. 3.22, p. 3-126. See also Prudential, 148 F.3d at 312; Amchen Products, Inc. V. Windsor, 52! U.S. 591, 626, n. 20, 117 S.Ct. 2231 (1997). In re United Energy Corp. Solar Power Modules Tax Shelter Invs. Sees. Litig., 122 F.R.D. 251,257 (C.D. Cal. 1988) (holding that the plaintiffs were adequate representatives for the class where they expressed an interest in and understanding of the case and participated in depositions). The party opposing a class has the burden to establish that representation is inadequate. Lewis v. Curtis, 671 F.2d 779, 788 (3rd Cir. 1982), cert. denied, 459 U.S. 880, 103 S.Ct. 176 (1982).
In this case, Plaintiffs are adequate representatives of the putative class. They have no interests antagonistic to or conflicting with the class. Moreover, Plaintiffs' counsel are well qualified to advance the interests of the class. Plaintiffs' counsel are experienced in class actions, particularly class actions against the state and other government entities, and Plaintiffs' counsel have previously been found to be adequate class counsel by numerous courts. See Bullock v. Sheahan, No. 04 C I051 (Judge Bucklo); Portis eta/. v. City ofChicago, No. 02 C 3139 (Judge Gettleman); Thompson, eta/. v. City ofChicago, No. 01 C 6916 2002 U.S. Dist. LEXIS 10627 (Magistrate Judge Nolan); Gary eta/. v. Sheahan, No. 96 C 7294 (Judge Coar); Watson eta/. v. Sheahan, No. 94 C 6891 (Judge Bucklo); Hvorcik eta/. v. Sheahan, 92 C 7324 (Judge Shadur)
2. Plaintiffs have established that the class action is maintainable pursuant to Rule 23(b)
7

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 9 of 11 PageID #:542
Plaintiffs meet the requirements of Rule 23(b)(2). The Defendant's policy and practice of prolonged weekend lockdowns of pretrial detainees, which continue after the tiers are searched, serves no justifiable administrative purpose at the Jail and amounts to harsh and abusive punishment of the pretrial detainees, thus making class certification appropriate in this case. The Defendant has acted on grounds generally applicable to the class of pretrial detainee inmates, thereby making appropriate final injunctive relief with respect to the class as a whole.
The certification of this case will protect the parties and the courts from repetitive litigation. Due to the common issues presented by the Defendant's practice of prolonged and abusive weekend lockdowns, a class action suit is superior to repetitive litigation.
Plaintiffs meet the requirements of Rule 23(b)(3). Rule 23 (b) (3) permits a class action where "the court finds that the questions oflaw or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. Proc. 23 (b) (3). "The predominance requirement is generally satisfied where a 'common nucleus of operative facts' exists among all class members for which the law provides a remedy." Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 310 (N.D. lll. 1995). "Once this basic determination has been made, the fact that there may be individual questions, as proposed by defendant, will not defeat the predominating common question." Miner v. Gillette Company, 428 N.E.2d 478, 485 (Ill. 1981). See also Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397,410 (D.N.J. 1990) ("Where all class members are united in their desire to establish the defendants' complicity and liability, individual issues, if they exist, are secondary.").
The requirements of Rule 23 (b) (3) are easily met in this case. As set forth above for
8

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 10 of 11 PageID #:543

commonality, at a minimum, the issue as to whether members of the class were unlawfully subjected to prolonged weekend lockdowns after their tiers were searched is common to all putative class members, and this question is the overriding and predominant issue applicable to all putative class members. Even if there are, arguendo, other questions affecting only individual members, no such questions would predominate over the common class questions. A class action is also superior to other available methods for the fair and efficient adjudication of the controversy. Denying a class and requiring hundreds of individual actions would waste judicial resources, lead to the possibility of duplicative and inconsistent rulings, and cause a financial hardship for the class members if they were all required to prosecute individual actions.
CONCLUSION Wherefore, for the foregoing reasons, Plaintiffs respectfully request that the Court grant this motion and certify the proposed classes.

Thomas G. Morrissey Thomas G. Morrissey, Ltd. I 0249 S. Western Ave. Chicago, II. 60643 773-233-7900
Robert H. Farley, Jr. Robert H. Farley, Jr. Ltd. 1155 S. Washington Naperville, IL 60540 630-369-0 I 03

Respectfully submitted,

(')w, I

\.

I

One of the Plaintiffs' Attorneys

9

Case: 1:03-cv-01768 Document #: 75 Filed: 07/06/05 Page 11 of 11 PageID #:544
CERTIFICATE OF SERVICE I, Thomas G. Morrissey, one of the attorneys for the Plaintiffs, deposes and states that he service a copy of the foregoing Plaintiffs Memorandum In Support of Their Motion for Class Certification by mailing and faxing a copy on or before 5:00p.m. on July 6, 2005, to the attorney(s) listed below.
SERVICE LIST To: Mr. Steven Puiszis Hinshaw & Culbertson 222 N. LaSalle Street, Suite 300 Chicago, II. 60601-1081
Mr. Patrick T. Driscoll, Jr. Civil Bureau Chief Office of the State's Attorneys 500 Richard J. Daley Center Chicago, IL 60602
10

 
 Case: 1:03-cv-01768 Document #: 216 Filed: 09/24/08 Page 1 of 5 PageID #:6906

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

Genise Hart, Carmen Feliciano, Ann Francis Gelco, Helen Koss Caprice Morales and Michelle Gandy, individually and and on behalf of a class,
Plaintiffs,
vs.
THOMAS DART, SHERIFF OF COOK COUNTY, in his official capacity, and Cook County

)

)

)

)

)

)

)

)

No. 03 C 1768

)

)

JUDGE: James Zagel

)

MAGISTRATE: Ashman

)

)

)

)

PLAINTIFFS' SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION
Now comes the Plaintiffs, by and through their attorneys, Thomas G. Morrissey, Ltd., and
Robert H. Farley, Jr., and supplement their Motion for Class Certification as follows:
I. Introduction.
Plaintiffs' previously filed a Motion for Class Certification (Doc. 73) and a Memorandum
in support ofthe Motion for Class Certification in July, 2005. (Doc.75) The Plaintiffs' sought
certification of the following class:
The class shall consist of all former female inmates at the Cook County Department of Corrections who had been subjected to non-emergency, extended lock downs over a weekend after their tier had been searched at the Jail and who were not incarcerated on March 11, 2003. The class shall also include those inmate who were incarcerated at the time of the filing and who had exhausted their available remedies prior to March 11, 2003.
1

Case: 1:03-cv-01768 Document #: 216 Filed: 09/24/08 Page 2 of 5 PageID #:6907
On August 14, 2008, in addressing the denial of Plaintiffs' Motion for Class Certification, this Court stated that it would allow Plaintiffs' to file a supplemental Motion for Class Certification proposing a narrower class than previously requested.
II. Amended Class Definition. The Plaintiffs' now seek certification of the following class:
All former female inmates in Division III at the Cook County Department of Corrections, during the period between March 11, 2001 through March 11, 2003, were subjected to a risk of serious harm by an unreasonably protracted detention of them, out of sight and hearing of the guards. and who were not incarcerated on March 11, 2003. 1 The class shall also include those inmate who were incarcerated at the time of the filing and who had exhausted their available remedies prior to March 11, 2003.
III. Division Three Houses Female Inmates With Special Needs. The risk of serious harm to the health and safety of female inmates during protracted weekend lock downs was more acute In Division Three of the Jail due to the special medical needs of the women. During the period when the Sheriff held weekend lock downs, female inmates in need of medical and/or psychological treatment were housed in Division Three. Women who were pregnant; women who were diagnosed with mental health illnesses; women suffering from substance abuse; and women with serious medical needs were assigned to Division III. (Plts. Addl. Facts 111, 113) A Jail procedure which calls on correctional officers to check on the status of prisoners only every thirty minutes may be constitutionally sufficient for inmates housed in the general population but deficient to insure the safety and health of women
1 In contract to Division IV which has 16 living unit tiers, Division III has only 6 living unit tiers and Division III houses inmates with medical and psychological issues. (Plts. Addl. Facts 26, 103, 110, 111)
2

Case: 1:03-cv-01768 Document #: 216 Filed: 09/24/08 Page 3 of 5 PageID #:6908
confined in a division housing women with psychological and/or serious medical needs. See Billman v. Ind. Dep 't ofCorrs., 56 F.3d 785, 788 (7th Cir. 1995) suggesting that a "substantial risk' could exist where a prison official place a detainee in a cell in which "they know that there is a cobra there or at least that there is a high probability of a cobra there." See also, Brown v. Budz, 398 F.3d 904, 911 (7th Cir. 2005) a substantial risk can also include risk attributable to prisoners with know propensities of violence toward a particular individual or class of individuals, to highly probable attacks and to particular prisoners who pose a heightened risk of assault to the plaintiff.
The design of Division Three also calls into question the need for extended weekend lock downs which put the health and safety of the inmates at risk. In contrast to Division Four which had sixteen tiers and provided housing for the general female population, Division Three has only six tiers (living units). In Division III, there is no direct access from one tier (wing) to the other tier (wing) on the same floor. There is no way for an inmate to pass contraband to from one dayroom in a tier to another dayroom in a tier. (Pits. Addl. Facts 112, 113)
IV. Plaintiffs Have Met The Prerequisites For A Class Action. For the reasons previously set forth before this Court in Plaintiffs' Motion for Class Certification and Reply to Class Certification, the Plaintiffs have satisfied numerosity, commonality, typicality, adequacy of representation and Rule 23(b)(3) requirements. Under Rule 23(b)(3) a class action in this case is superior to other available means for a fair and efficient adjudication of this controversy. The damages suffered by individual class members are small compared to the burden and expense of individual prosecution of the action to address Defendants' unconstitutional conduct.
3

Case: 1:03-cv-01768 Document #: 216 Filed: 09/24/08 Page 4 of 5 PageID #:6909
Wherefore, the Plaintiffs request that this Court enter an order certifying a class with the above stated class definition under Rule 23(b)(3).
Respectfully submitted, Is/ Thomas G. Morrissey One of the Attorneys for Plaintiffs
Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Avenue Chicago, IL 60643 Phone: 773-233-7900 Fax: 773-239-0387 Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Street Naperville, IL 60540 Phone: 630-369-0103 Fax: 630-369-019
4

Case: 1:03-cv-01768 Document #: 216 Filed: 09/24/08 Page 5 of 5 PageID #:6910
CERTIFICATE OF SERVICE I, Robert H. Farley, Jr., Attorney for the Plaintiffs, deposes and states that he caused the foregoing Plaintiffs' Reply to Defendants' Response to Plaintiffs' Supplemental Motion for Class Certification, by electronically filing said document with the Clerk of the Court using the CM/ECF system, this 24th day of September, 2008.
Is/ Robert H. Farley, Jr..
Attorneys for the Defendant Mr. Bernard E. Jude Quinn Mr. Frank J. Marsico Hinshaw & Culbertson 222 N. LaSalle, Street, Suite 300 Chicago, IL 60601-1081 Mr. Patrick T. Driscoll, Jr. Office ofthe State's Attorneys 500 Richard J. Daley Center Chicago, IL 60602
5

 
 r

'

Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 1 of 33 PageID #:729

UNITED STATES DISTRICT' cOURT

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

··''

GENISE HART, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MICHAEL SHEAHAN, SHERIFF OF COOK )

COUNTY, ei al,.

)

)

Defendants.

)

No. 03 C 1768
Judge James B. Zagel

DEFENDANTS MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, AND THE COUNTY OF COOK'S MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

HINSHAW & CULBERTSON LLP 222 NORTH LASALLE STREET, SUITE 300 CHICAGO, ILLINOIS 60601-1081 (312) 704-3000 Attorneys for Michael Sheahan, SheriffofCook County

OFFICE OF THE STATE'S ATTORNEY OF COOK COUNTY 500 RICHARD J. DALEY CENTER, ROOM 575 CIDCAGO, ILLINOIS 60602 (312) 603-5365 Attorneys for Cook County

Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 2 of 33 PageID #:730

TABLE OF CONTENTS

TABLE OF CONTENTS..........................................................................•................................... i

TABLE OF AUTHORITIES .................................•..................................................................... ii

I.

INTRODUCTION .........................................................•....................................................... 1

II.

LEGAL STANDARD FOR SUMMARY JUDGMENT ................................................................ 3

III. FACTS ENTITLING DEFENDANTS To SUMMARY JUDGMENT ............................................. 3

A. BACKGROUND INFORMATION ON THE COOK COUNTY JAIL ................................ 3
B. THE COUNTY JAIL IS NO LONGER HOLDING WEEKEND LOCKDOWNS .............•... 6
C. PURPOSE OF WEEKEND LOCKDOWNS .................................................................. 6
D. REASON THE LOCKDOWNS WERE HELD ON WEEKENDS ..................................... 7
E. MOVEMENT OF CONTRABAND AT THE JAIL ......................................................... 7
F. PRISONERS ARE LOCKED IN THEIR CELLS AT LEAST HALF OF EACH DAY UNDER NORMAL CONDITIONS ........................................................... 8
G. THE MANNER IN WHICH WEEKEND LOCKDOWNS WERE HELD ........................... 9
H. ESSENTIAL SERVICES WERE PROVIDED DURING A WEEKEND LOCKDOWN WHICH RESULTED IN PRISONER MOVEMENT
OUT OF THEIR CELLS ......................................................................................... 10
I. PRISONERS WERE NEVER OUT OF THE SIGHT OR HEARING OF CORRECTIONAL OFFICERS FOR AN EXTENDED PERIOD DURING WEEKEND LOCKDOWNS ...............................•.•................•................................... 12
J. REASONS WHY TIERS WERE NoT TAKEN OFF OF LOCKDOWN AFTER SEARCH OF THE TIER WAS COMPLETED .................................................. 13
K. PROGRAMS OFFERED TO FEMALE PRISONERS AT THE JAIL ............................... 15 L. STAFFING ISSUES DURING WEEKEND LOCKDOWNS ............•............................... 16
M. NUMBER OF CORRECTIONAL GUARDS AT THE JAIL. ..•...................................... 16
IV. LEGAL ARGUMENTS IN SUPPORT OF SUMMARY JUDGMENT .......................................... 17
A. BECAUSE PLAINTIFFS WERE NEVER OUT OF THE SIGHT OR HEARING
OF CORRECTIONAL OFFICERS FOR AN EXTENDED PERIOD OF TIME PLAINTIFFS HAVE NOVALID CLAIM UNDER SEVENTH CIRCUIT'S DECISION IN HART...................................•......................................... 17
B. PLAINTIFFS LACK STANDING To OBTAIN INJUNCTIVE RELIEF AND THEIR CLAIMS FOR INJUNCTIVE RELIEF ARE MOOT .................................. 18
C. WEEKEND SEARCHES FOR CONTRABAND HAD A LEGITIMATE PURPOSE ..............................................................•.................... 19

•

Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 3 of 33 PageID #:731

D. EXISTENCE OF DIFFERENT OR PURPORTEDLY BETTER
POLICIES IS IRRELEVANT ................................................................................... 21
E. MERELY BECAUSE PLAINTIFFS WERE KEPT IN THEIR CELLS LONGER THAN UNDER NORMAL CONDITIONS DOES NOT ESTABLISH
A CONSTITUTIONAL VIOLATION ........................................................................ 21
F. PRISONERS WERE NOT EXPOSED TO GRATIJITOUSLY BRTUAL TREATMENT AND LOCKDOWNS WERE NOT EXCESSIVE IN
RELATION To THEIR PURPOSE .......................................................................... 23
G. ASSERTIONS ABOUT ASSAULTS AND A LACK OF CARE DO NOT ESTABLISH PLAINTIFFS WERE EXPOSED To SYSTEMIC GRATUITOUSLY
BRUTAL TREATMENT As A RESULT OF LOCKDOWNS ........................................ 24
1. No CONSTITUTIONALLY RECOGNIZED CLAIM FOR FEAR FOR
PERSONAL SAFETY....................................................................................... 24
2. PLAINTIFFS HAVE FAILED TO ESTABLISH A FAILURE To PROTECT CLAIM ..................................................................•.......................... 25
H. PLAINTIFFS' DENIAL OF MEDICAL CARE ALLEGATIONS Do NOT ESTABLISH A CONSTITUTIONAL VIOLATION ...................................................... 26

TABLE OF AUTHORITIES

Cases

Page

Abrams v. Walker, 307 F.3d 650 (7th Cir. 2002) .............................................................................3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................3

Babcock v. White, 102 F.3d 267 (7th Cir. 1996)............................................................................24

Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232 (7th Cir. 1991) ..................................................3

Bell v. Wolfish, 441 U.S. 520 (1979) .......................................................................... .19, 20, 21,23

Board v. Farnham, 394 F.3d 469 (7th Cir. 2005) ..........................................................................25

Buck v. Lake County Sheriff, 2004 WL 2983966 (N.D. Ill. 2004).................................................21

Buttera v. Cottey, 285 F.3d 601 (7th Cir. 2002) ................................................................ 17, 18, 25

Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986) ..........................................................................21

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................3

Chapman v. Keltner, 24 F.3d 842 (7th Cir. 2002) .........................................................................26

City ofLos Angeles v. Lyons, 461 U.S. 95 (1983) ......................................................................... 18

-11-

Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 4 of 33 PageID #:732
Davis v. Jones, 936 F.2d 971 (7th Cir. 1991} ................................................................................26 Dialv Coler, 791 F.3d 78 (7th Cir. 1986) ..................................................................................... 19 Doe v. Welborn, 110 F.3d 520 (7th Cir. 1997} ..............................................................................24 Echols v. Skipper, 2001 WL 936128 (N.D. Ill. 2001) ...................................................................24 Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................25 Frake v. City ofChicago, 210 F.3d 779 (7th Cir. 2001) ................................................................21 Green v. Mansour, 474 U.S. 64 (1985) .......................................................................................... 19 Hadi v. Horn, 830 F.2d 779 (7th Cir. 1987) ..................................................................................22 Hart v. Sheahan, 396 F.3d 887 (7th Cir. 2005) ..................................................................... passim Henderson v. Sheahan, 1965 F.3d 839 (7th Cir 1999) ..................................................................24 Higgason v. Farley, 83 F.3d 807 (7th Cir 1996) ...........................................................................19 Holly v. Woolfolk, 415 F.3d 678 (2005).........................................................................................20 Hutto v. Finney, 437 U.S. 678 (1978) ............................................................................................21 Johnson v. California,_ U.S._, 125 S.Ct. 1141 (2005) ............................................................ 19 Jones v. NC. Prisoner's Labor Union, Inc., 433U.S. 119 (1977) .................................................22 Lucien v. Godinez, 814 F. Supp. 754 (N.D. Ill. 1993) ...................................................................26 Mayoral v. Sheahan, 245 F.3d 934 (7th Cir. 2001) .................................................................23, 25 McDonald v. Village of Winnetka, 317 F.3d 992 (7th Cir. 2004}....................................................3 Palmer v. Marion County, 327 F.3d 588 (7th Cir. 2003) ..............................................................21 Perry v. Village ofArlington Heights, 186 F.3d 826 (7th Cir 1999) ............................................. 18 Potter v. Clark, 497 F.2d 1206 (7th Cir. 1974)..............................................................................21 Rapier v. Harris, 172 F.3d 999 (7th Cir. 1999) .............................................................................25 Robinson v. City ofChicago, 868 F.2d 959 (7th Cir. 1989) .......................................................... 17 Russell v. Richards, 384 F.3d 444 (7th Cir 2004).......................................................................... 20 Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004}................................................................................ 19 Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998)............................................................................27
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Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 5 of 33 PageID #:733 Turner v. Safley, 482 U.S. 78 (1987) .............................................................................................20 Weiss v Cooley, 230 F.3d 1027 (7th Cir. 2000) .............................................................................25 Whitnack v. Douglas County, 16 F.3d 954 (8th Cir. 1994) ...........................................................20 Zentmeyer v. Kendall County, Ill., 220 F.3d 805 (7th Cir. 2000) ..................................................23
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I.

INTRODUCTION

In its review of plaintiffs' Second Amended Complaint which challenged the
constitutionality of the Cook County Department of Corrections' (hereinafter "Cook County
Jail" or ')ail") former practice of holding periodic weekend lockdowns to search a division of the
jail for weapons and contraband, the Seventh Circuit assumed the truthfulness of plaintiffs'
allegations that:
The lockdown lasts from Friday afternoon to Sunday afternoon - 48 to 50 hours - and during that entire time, the inmates are confined to their cells. They are fed, but they are not under the observation, or even within the hailing distance, of the guards, who are busy with the searches.

Hart v. Sheahan, 396 F.3d 887, 893 (7th Cir. 2005). Based upon that assumed scenario, the
court concluded that a claim had been stated because prisoners were allegedly out of the sight
and hearing of correctional officers for an unreasonable period of time during those lockdowns:
But the heart of the plaintiffs' claim, with enough merit to withstand a motion to dismiss, is that the jail is subjecting them to a risk of serious harm by an unreasonably protracted detention of them out of sight and hearing of the guards.

ld. at 894. However, the assumed set of facts which led to the Seventh Circuit's decision in Hart has no basis in reality at the jail.
During the weekend lockdowns now at issue, correctional officers checked on the status of prisoners every 30 minutes while the lockdown was in effect (R. 203,205). 1 Correctional officers also make "head counts" of prisoners in their cells three times a day at the jail. Those counts were made while the lockdowns were in effect (R. 210-212). Additionally, correctional officers either delivered meals to the prisoners in their cells or accompanied a "living unit worker" who delivered those meals during a lockdown (R. 213-215). Moreover, because the cells in Divisions III and N had to be manually locked by correctional officers, every time a prisoner returned to her cell while a weekend lockdown was in effect, a correctional officer had to walk that prisoner to her cell in order to lock the cell door (R.216-219). As explained below, prisoners were allowed to be out of their cells for various reasons during the lockdowns at issue. These operational practices not only presented multiple opportunities for correctional officers to

All factual assertions made in his Memorandum of Law are taken from defendants' Rule 56.1

Statement of Undisputed Facts which is attached. Specific paragraphs from that cited as "R_" accompanied by the Rule's corresponding paragraph number.

Rule

56.1

Statement

are

I

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check on the status of prisoners in their cells but also for prisoners in their cells to speak to correctional officers during those weekend lockdowns (R. 212, 215-219). Thus, prisoners were not out of the sight or hearing of correctional officers for an "unreasonably protracted" period of time during those weekend lockdowns. On that basis alone, defendants are entitled to summary judgment. Additionally, because weekend lockdowns no longer are being held at the jail- they stopped in the men's divisions well over a year ago, and were stopped in the women's divisions long before that (R. 273-276), plaintiffs have no basis to seek injunctive relief in this matter.
The factual underpinnings for the cause of action recognized in Hart simply did not exist during the weekend lockdowns in question. While some prisoners were out of their cells longer than others, no prisoner remained in her cell for the entirety of a weekend lockdown as alleged in plaintiffs' complaint. To insure the safety of correctional officers when they were searching the cells, prisoners on a tier were removed from their cells while cell searches were in progress (R. 168-173,176). Prisoners in Division N were moved into the tier's dayroom and prisoners in Division III were moved into a first floor recreation room while the cells on a particular tier were being searched (R. 170-171).
Additionally, prisoners were permitted out of their cells and moved off of their tier for a variety of reasons during a weekend lockdown. If a prisoner had a prearranged visit with family or friends scheduled during a lockdown weekend, the prisoner was removed from her cell and the visit was permitted (R. 134-35,137). The jail also permitted unscheduled visits to occur on a lockdown weekend when the visitor traveled over 150 miles to make the visit (R. 136). If an attorney either had a prearranged meeting or appeared at the jail while the lockdown was in effect, the attorney-client meeting was also allowed (R. 138). Two of the named plaintiffs, Caprice Morales and Genise Hart, received visitors during the course of a weekend lockdown (R. 147-149).
Prisoners also left their cells and moved off of their tiers to receive certain types of medication and medical care that could not be provided at their cells (R. 150-153). Two of the other named plaintiffs acknowledged receiving medical attention from nursing staff during a lockdown of their division in their interrogatory answers and one of them (Ms. Gandy) was out of her cell and received that care at the division's nursing station (R. 156-57). Prisoners were removed from their cells during weekend lockdowns for psychiatric screenings (R. 159-162).
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Prisoners were also allowed out of their cells and moved off tier to work (R. 177-188), to be discharged from the jail or when transferred to another division (R. 194-95).
II. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when there is "no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When summary judgment is sought, a court is obligated to examine the facts presented in the light most favorable to the plaintiffs and draw all reasonable inference in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, a court is "not required to draw every conceivable inference from the record" in plaintiffs favor, "only those inferences that are reasonable." Bank Leumi Le-lsreal, B.M v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). "Inferences that are supported by only speculation or conjuncture will not defeat a summary judgment motion." McDonald v. Village of Winnetka, 317 F.3d 992, 1001 (7th Cir. 2004).
"The mere existence of some alleged factual dispute between the parties," is not sufficient to defeat summary judgment. Anderson, 477 U.S. at 247. "Only disputes over facts that might affect the outcome of the suit under the governing law will property preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Abrams v. Walker, 307 F.3d 650, 653 (7th Cir. 2002). A factual dispute must also be "genuine." A dispute is not genuine unless "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. Where plaintiffs' evidence "is merely colorable, or is not significantly probative," summary judgment should be entered. !d. at 249-50.
III. FACTS ENTITLING DEFENDANTS TO SUMMARY JUDGMENT

A.

BACKGROUND INFORMATION ON THE COOK COUNTY JAIL.

The Cook County Jail is the largest single-site jail in the country (R. 13). It currently houses slightly more than 1000 female prisoners (R. 16), and has a total population of between 10,000 and 10,500 prisoners (R. 15). The exact number of prisoners varies from day-to-day depending upon the number of prisoners admitted to, discharged or transferred from the jail (R. 17). The total number of prisoners at the jail was slightly higher in 2001 and 2002 when the weekend lockdowns in Divisions III and IV were held than the current number of prisoners at the jail (R. 17). Approximately 100,000 prisoners are admitted to the jail on an annual basis (R.19).

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The jail is comprised of ten (1 0) divisions. Each division has its own separate building and operates semi-autonomously under the administrative direction of its own superintendent and supervisory staffwith the exception of Division III (for women) and Division VIII (for men) which share the same superintendent and supervisory staff (R. 19). Located on the jail's grounds is a stand alone health-care facility (Cermak), two third-party educational departments (Chicago Board of Education and Chicago City Colleges), as well as a privatized food service and commissary agency (R. 22,23). Female prisoners are held in two separate divisions of the jail, Divisions III and IV (R. 20). Division IV has sixteen (16) separate tiers with 352 cells or living units (R. 21). Division III has six tiers with 180 cells or living units (R. 22).
Each new prisoner admitted to the jail has his or her level of security risk evaluated by jail staff (R. 39). Prisoners are classified as either a minimum, medium or maximum security risk (R. 40). The security risk evaluation accomplished through a point system which among other things considers any prior convictions of the prisoner, the nature of those convictions, the nature of the pending criminal charge(s), the prisoner's age, any known gang affiliation, the stability of the prisoner's prior living arrangements and whether the prisoner was involved in any prior institutional escapes or had any prior disciplinary problems (R. 41). Currently 34% of all prisoners at the jail are classified as maximum security (R. 42). Approximately 18% of female prisoners at the jail have a maximum security classification (R. 43). The same approximate percentages of male and female prisoners at the jail were classified as maximum security in 2001 and 2002 when the weekend lockdowns in Divisions III and IV were being held (R. 44).
During the intake process at the jail, each new prisoner is medically and psychologically evaluated and screened by an independent team of trained medical and mental-health personnel who were either employed by or under contract with Cermak Health Services (hereinafter "Cermak personnel") (R. 45). Female prisoners with special medical needs such as substance abuse or who are pregnant, depending upon the state of the pregnancy are housed in Division III of the jail (R. 46). Prisoners in Division III are grouped together on tiers based on the nature of their medical need. For example, the jail attempts to house all prisoners receiving methadone on the same tier in Division III (R. 47). The Cermak personnel performing the medical and psychological evaluations and screenings of new prisoners at the jail determine if a female prisoner should be assigned to Division III, Division IV or should be sent to Cermak's standalone health facility located on the jail's grounds (R. 48).
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Additionally during the intake process, the Cermak personnel will assess whether a new prisoner suffers from any physical or mental condition which requires the administration of medication (R. 49). If Cermak personnel determine that a prisoner will require medication while at the jail, the type of medication as well as its dosage and frequency of administration will be noted in the prisoner's medical chart which will then be sent to the medical dispensary for the division to which that prisoner is assigned (R. 50).
In Division IV, female prisoners with a maximum security classification are generally segregated by tier from prisoners with a medium or minimum security classification (R. 51). Division IV also has several "program tiers." On those program tiers, prisoners are not segregated by their security classification but rather, are grouped together by virtue of their enrolhnent in a specific program at the jail such as the jail's "school program," the "dare to be different program" which focuses on drug avoidance, respect for life, self-dignity and religious believes or the "Gateway program" which focuses on drug rehabilitation (R. 52). To gain entry into such a program tier in Division IV, prisoners must request admission and be accepted into the program (R. 53).
Divisions III and IV each have their own nursing station which includes a medical dispensary stocked with various medications. Those stations are also equipped with medical equipment to evaluate and to provide care to prisoners in those divisions (R. 32). During the weekend lockdowns that formerly occurred in Divisions III and IV, nurses who were either employed by or under contract with Cermak Health Services were stationed at those nursing stations around the clock ("24 x7") and were available to assess a prisoner's condition and provide medication, medical care and treatment at all times while those divisions were on lockdown (R. I 02). Additional medical and/or mental health services were available and were provided to prisoners during the weekend lockdowns that occurred in Divisions III and IV at Cermak's stand-alone healthcare facility on the jail's grounds or at an outside hospital facility (R. 33, 150-53).
The Cook County Jail is currently accredited by the American Correctional Association (ACA) and was accredited by the ACA during the time when the weekend lockdowns in Divisions III and IV were being held (R. 37). The Cook County Jail is the largest jail in the United States to receive accreditation by the ACA (R. 38).
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B.

THE COUNTY JAIL IS NO LONGER HOLDING WEEKEND LOCKDOWNS.

The type of weekend lockdowns which are the subject of plaintiffs' lawsuit are no longer

being conducted in either the men's or women's divisions of the jail (R. 273). The former

executive director of the jail, Callie Baird, stopped the practice of holding periodic weekend

lockdowns in the men's divisions of the jail well over one year ago (R. 274). The jail stopped

holding weekend lockdowns of the women's divisions even before the lockdowns of the men's

divisions were stopped (R. 275). The current acting director of the jail has no intention of

reinstituting weekend lockdowns at the jail (R. 276). In paragraph I of their Third Amended

Complaint, plaintiffs asserted that "the Jail has not conducted a weekend lockdown in either

Division Three or Four" (the women's divisions) since approximately March 12, 2003.

C.

PURPOSE OF WEEKEND LOCKDOWNS.

Weekend lockdowns of an entire division of the jail were held to make a thorough search for weapons, drugs or contraband throughout all areas of a division of the jail (R. 62). The purpose of those weekend lockdowns was not to punish a particular detainee or group of prisoners at the jail (R. 63). Rather, their purpose was to search, find and confiscate drugs, weapons or other items of contraband inside the jail before a violent outbreak or incident occurred (R. 64). Emergency lockdowns of an entire division have also been held at the jail following a violent outbreak or disturbance, but plaintiffs are not contesting the need to conduct emergency lockdowns at the jail (R. 70; Ex. A, '1[23).
Contraband is any object or thing that a prisoner is not permitted to have in the jail; any object or item that is used in a fashion other than its intended purpose or anything found in a location of the jail where it is not permitted (R. 54). Common objects that prisoners are allowed to have in their cells such as toothbrushes or pens have been converted into crude weapons by sharpening down their edges or by inserting a pen, paperclip or sharp object into one of its ends (R. 55). Weapons and contraband can be fashioned out of virtually anything inside a prisoner jail (R. 56). For example, cardboard toilet paper holders have been converted into crude pipes for smoking drugs by carving out or cutting out a portion of cardboard and then inserting tinfoil into the opening. Toilet paper will then be wrapped around it in an attempt to prevent its discovery (R. 57). Extra bedding sheets can be tom into strips to form a rope (R. 58). Small thin metal objects can be used to pick locks (R. 59). Prisoners at the jail have broken off pieces of metal from plates or grates in the walls or even from the sides of risers in the jail's gymnasiums.

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They then have sharpened or bent the piece of metal so that it has a point and thereby fashion a home-made weapon which is referred to as a shank (R. 60).

The discovery and confiscation of weapons, drugs or items of contraband in the jail makes it a safer and more secure facility not only for correctional staff, but also for prisoners

housed in the jail (R. 66). Weapons, drugs and contraband have been found during division-wide searches that occurred during weekend lockdowns that were held at the jail (R. 67). Photographs

of weapons discovered inside the jail are attached as Group Exhibit No. 1 to the Declaration of

Scott Kurtovich (R. 68-69).

D.

REASON THE LOCKDOWNS WERE HELD ON WEEKENDS.

Division-wide lockdowns occurred on weekends at the jail because during weekdays, the

Sheriff transports up to 1, 000 prisoners per day to and from various courthouses throughout

Cook County (R. 85). Additionally, from Monday through Thursday of each week, between 50

and 350 male and/or female prisoners are transported by the Sheriff to the Illinois Department of

Corrections (R. 86). The only courts that are typically in session during a weekend are bond

courts and correctional staff at the jail do not have to transport prisoners to court as a result on

the weekend (R. 87). Because there was no movement of prisoners from the jail to court or to

the IDOC, the division-wide lockdowns were held on weekends (R. 88).

E.

MOVEMENT OF CONTRABAND AT THE JAIL.

Anytime a prisoner moves from location to another within the jail or even with a division of the jail, the potential exists that a weapon, drugs or an item of contraband can be moved to a different location, transferred to another prisoner or secreted in a hiding place (R. 71 ). Female prisoners have secreted small weapons or items of contraband in the soles of their shoes, in the braids of their hair, in their bras, in their panties and in their vaginal area (R. 75).
Weapons or items of contraband can be secreted on the underside of surfaces through the use of gum, toothpaste or other substances in any areas of the jail that a prisoner has access to (R. 84). Contraband or weapons can also be secreted in food trays or garbage bags or in mops and cleaning buckets used and moved by prison workers during weekend lockdowns (R. 76).
The jail has discovered that prisoners have passed items into and through vents or ducts located in jail cells and in various common areas of the jail which lead directly to ventilation shafts which run between various floors of a division of the jail (R. 80-81). Various items of contraband have been discovered by correctional officers when searching the openings of those

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vents or ducts (R. 81). This means that prisoners have attempted to pass weapons or items of contraband to other prisoners on tiers above or below them (R. 82). Prisoners on the tier above lower string through the vent or duct to a prisoner below who would then tie the string around a weapon or an item of contraband and pull it up through those vents or shafts (Id). Prisoners have also attempted to lower items of contraband through the vents or ducts to prisoners below them in a similar fashion. (Id.) The jail has also discovered that prisoners have attempted to pass small weapons or items of contraband wrapped in cellophane through the plumbing pipes of the jail (R. 83).

For fire safety reasons, the tier interlock door is not the only means by which a prisoner can exit or leave a tier in Divisions III or IV in the event of an emergency. Each tier in Divisions III and IV also have a fire door which is normally kept locked which opens onto a common stairwell (R. 77). The common stairwells in Divisions III and IV which the fire doors open onto are used to move prisoners between floors of those divisions. The jail has had instances where prisoners have slid items of contraband under a fire door into a common stairwell which would allow an item of contraband to be picked up by another prisoner walking up or down that stairwell (R. 77-79).

F.

PRISONERS ARE LOCKED IN THEIR CELLS AT LEAST HALF OF EACH DAY UNDER

NORMAL CONDITIONS.

Normally during each day at the jail, prisoners are locked in their cells at approximately 1:30 p.m. for several hours to obtain a "head count" of prisoners in the division and to permit a shift change of correctional officers to safely occur (R. 28). Prisoners are also locked in their cells at night from approximately 9:00 p.m. until approximately 7:00 a.m., except for approximately thirty (30) minutes in the morning when they receive their breakfast (R. 29). Thus, under normal conditions, prisoners are locked in their cells for at least half of each day (R. 30). During the time when prisoners are locked in their cells, they can read their mail, write letters, or read paperback books, magazines or religious reading materials which they are allowed to have in their cells. If they are in school at the jail, prisoners can read any school books or work on school projects in their cells. They can do crossword puzzles or play cards which are available through the jail's commissary (R. 31).

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G.

THE MANNER IN WHICH WEEKEND LOCKDOWNS WERE HELD.

The weekend lockdown searches of Divisions III and IV were manually completed. The jail did not have any portable magnetometers, fluoroscopes or other electronic equipment available to use during those searches (R. 94). Administrators at the jail attempted to vary the interval between the weekend lockdowns of a specific division of the jail so that the lockdown searches did not occur under any recognizable pattern so that prisoners housed in a particular division could not predict when a weekend lockdown was likely to occur (R. 95). The jail varied the time intervals between the weekend lockdowns in an attempt to increase the effectiveness of the searches that were made during those lockdowns (R. 96). Many of the weekend lockdowns that occurred in Division III began on Saturday morning, not Friday afternoon (R. 97-99). There was no set time when the weekend lockdown was to end on a Sunday (R. 124). Once the search of the entire division was completed, the lockdown was lifted (R. 125).
During the weekend lockdown, all areas of the division on lockdown were searched (R. I06). Weekend lockdown searches of a division were different than other searches of a cell or a tier that occur at the jail. They were more intense and more comprehensive than those other searches (R. 107). The jail's policy was that during a weekend lockdown search, correctional officers were to check the integrity of the outside walls of the cell, to search for extra bedding or clothing in the cell, and to check the cell's electrical fixtures. In addition, the areas around, under, inside of or behind any mirror or objects on the wall, including any vents, ducts or grates in the wall were to be searched as well as the toilet and sink areas and any mattresses, pillows or bed frames in a jail cell (R. I08). Every object in the cell was to be searched including all items of personal property. The tops of containers were removed and correctional officers were to look inside of anything in which a weapon or item of contraband could be hidden (R. 115). While the prisoners' cells on a tier were being searched during a weekend lockdown, prisoners were removed from their cells (R. 129).
The weekend lockdown searches included all hallways, common areas, shower rooms, clothing rooms, recreation rooms, dayrooms, libraries, chapels, visitation rooms, storage rooms, classrooms, gymnasiums, lobbies, beauty shops as well as any other area in a division where a weapon or item of contraband could be hidden (R. 109). All objects in any area searched, in which or under which a weapon or item of contraband could be hidden had to be opened and examined (R. II 0). This meant desk drawers, tables, chairs, books, clothing bags, jars and board

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games had to be searched (R. 111). There are a large number of books in classrooms and

libraries that can be a hiding place for drugs, a weapon or contraband which were searched

during the weekend lockdowns (R. 112). Some of the common areas of the division would be searched at night while the prisoners were asleep (R. 114).

The length of time it would take to search an area during the weekend lockdown would depend upon the number of correctional officers involved, the thoroughness of an individual

officer's search, the number of objects or items that had to be opened, looked under or examined

and the nature of anything seized during the search (R. 118). The discovery of a weapon or

drugs in a prisoner's cell would lengthen the time it took to complete the search of a tier because correctional staff had to properly inventory the item recovered and investigate which prisoner

was responsible for possession of the contraband (R. 119).

There were no set or specific number of correctional officers assigned to search the living units or common areas of a division during a weekend lockdown. The number of officers varied depending upon the number of correctional officers then available (R. 120). Correctional

officers who were assigned to search the division during a weekend lockdown were frequently

pulled off of the search assignment to perform other tasks such as transporting prisoners to Cermak or to the division's medical dispensary for treatment, which impacted the time to

complete the search of an area (R. 121).

During the weekend 1ockdowns in Divisions III and N, correctional officers would not

search a prisoner's cell or a tier during the time when prisoners on that tier were eating a meal (R. 122). There was also a three-hour time frame during each shift when one-third of

correctional staff in the division was at lunch and during that time frame, searches could not be performed (R. 123).

H.

ESSENTIAL SERVICES WERE PROVIDED DURING A WEEKEND LOCKDOWN WHICH

RESULTED IN PRISONER MOVEMENT OUT OF THEIR CELLS.

Essential services were provided to prisoners during weekend lockdowns including medical care (R. 22, 102). At all times during the weekend lockdowns, nursing staff were stationed at the nursing stations in Divisions III and N and were available to evaluate, triage, treat and provide care to prisoners during those weekend lockdowns (R. 102-04, 226, 228). During the lockdowns, nurses from the division's medical dispensary would periodically visit the tiers to deliver and administer medication to prisoners at their cells (R. 103, 227). Nursing staff

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also responded to calls from correctional officers when medical assistance was requested on a tier during a weekend lockdown (R. 104). Certain types of medications and medical care could not be delivered or administered to prisoners in their cells. When that situation arose during a weekend lockdown, prisoners were escorted to the division's medical dispensary for additional care (R. 105, 231-232). Nurses' visits to various tiers in Divisions III and N while on lockdown were documented in Officers Living Unit Logs, examples of which are attached as Group Exhibit 3 to the Declaration of the acting director of the jail (R. 230). Several plaintiffs have admitted seeing the division's nurse and receiving medical care during weekend lockdowns (R. 156-57). One plaintiff (Ms. Gandy), admitted that she was released from her cell and moved off of her tier during a weekend lockdown to receive that care (R. 156).
During weekend lockdowns, prisoners were also taken to the Cermak Health facility on the jail's grounds for the administration of medication and medical care that could not be provided at the prisoner's cell (R. 150-153, 233-34). Prisoners were taken to Cermak for x-rays, testing and emergency care, among other things, during a weekend lockdown when nursing staff felt such care was required (R. 234). If additional care was required, prisoners were transported to an outlying hospital during the weekend lockdowns (R. 235). Prisoners were also taken off their tier for psychiatric evaluations when necessary during those lockdowns(R. 159-164, 166, 236-38).
Meals were delivered to prisoners in their cells while a weekend lockdown was in effect on the regular meal schedule (R. 213). Correctional officers either delivered those meals to prisoners in their cells or accompanied a living unit worker as she delivered the meals (R. 214).
Prisoners were allowed to be out of their cells and off of their tiers for 30 minute visits with family and friends if a visit had been previously scheduled in accordance with the jail' rules and regulations or where the visitor had traveled more than 150 miles (R. 134-137). Visits for an unlimited period of time with an attorney were also permitted during the weekend lockdowns (R. 138). Those visits are documented in visitation logs which are attached as Group Exhibits 5 through 47 to the Declaration of the jail's acting director (R. 143-146). Two of the named plaintiffs were allowed out of their respective cells to receive a visitor during a weekend lockdown of their division (R. 147-49). These visits were allowed because either the wholesale cancellation of prearranged visits or the wholesale denial of visits for prisoners in a division on a particular weekend would alert prisoners in that division that a lockdown was likely to occur
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which would provide them with an opportunity to move or secrete contraband elsewhere in that division or elsewhere in the jail (R. 134).
Prisoners were discharged from the jail during weekend lockdowns upon the completion of their sentence, upon placement in a furlough program or after their bond was paid (R. 194, 200). Additionally, a significant number of prisoners served as "living unit workers" and "building workers" who were permitted to be out of their cells for extended periods of time during the lockdowns to assist in the delivery of food and to clean the jail's common areas (R. 177-180, 184, 186-188, 200). Building workers moved between tiers when performing their services (R. 178-183). Prisoner movement out of their cell and off tier during the weekend lockdowns that occurred in Divisions III and N were recorded in Movement Logs which are attached as Group Exhibits 48 through 86 to the Declaration of the acting director of the jail (Ex. B) (R. 196-200).

Prisoner movement out of their cells and off of their tiers was not eliminated during the weekend lockdowns because the essential services described above were provided to prisoners during the lockdowns (R. 91-93, 127). It was impossible to eliminate prisoner movement outside their cells and/or off their tiers during a weekend lockdown because of the provision of those services (R. 91-93, 127-128). During the weekend lockdowns that formerly occurred in Divisions III and N, no prisoner remained in her cell the entirety of the weekend lockdown (R. 129-30, 168-72, 176).

I.

PRISONERS WERE NEVER OUT OF THE SIGHT OR HEARING OF CORRECTIONAL

OFFICERS FOR AN EXTENDED PERIOD DURING WEEKEND LOCKDOWNS.

Prisoners were not out of the sight and hearing of correctional guards for an unreasonable length of time during the weekend lockdowns at issue because during those lockdowns, correctional officers checked on the prisoners' status every half hour (R. 203). Additionally, correctional officers at the jail are required to make "head counts" of prisoners on their tiers three times a day and those counts were made during weekend lockdowns. (R. 210). Correctional officers would make those 30 minute status checks and head counts by walking the hallway outside of each cell and verbally or visually checking on the status of prisoners in their cells (R. 205, 211). Those 30 minute checks were documented in Officer's Living Logs, examples of which are attached to the Declaration of the jail's acting director Group Exhibit 3 to Ex. B (R. 207-209).

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Every time a prisoner returned to her cell after having left it for the various reasons noted

above, a correctional officer had to manually lock the prisoner's cell door (R. 218). While

correctional officers could open jail cells electronically from the tier monitoring station, the cells

had to be manually locked (R. 216-17). This provided the correctional officers with another

opportunity (in addition to the 30-minute security checks, head counts and at meal delivery) to

determine the status of the prisoners in their cells (R. 219). Thus, there was ample opportunities

for prisoners while they were in and out of their cells to communicate their concerns or problems

with correctional staff during the course ofthose lockdowns (R. 219, 215, 212).

J.

REASONS WHY TIERS WERE NOT TAKEN OFF OF LOCKDOWN AFTER SEARCH OF THE

TIER WAS COMPLETED.

There were several reasons why a tier was not taken off of lockdown after a search of the tier was completed. First, not all prisoner movement off ofthe tiers was eliminated (R. 128, 25354). At various times during the weekend lockdowns at issue, prisoners were permitted out of their cells and moved off of their tiers for visits with attorneys, family members or friends; to serve as building workers, for visits to the division's medical dispensary, for visits to Cermak or an outlying hospital, for psychiatric screenings, when discharged from the jail or when transferred to a different division of the jail (R. 127, 135-138, 145-154, 159, 169-172, 177-188, 194-95, 254). While it is the jail's policy to pat-down a prisoner whenever she was permitted out of her cell during a weekend lockdown in Divisions III or IV, jail administrators recognized that this did not eliminate the possibility that a small item of contraband or a weapon could be missed or that another prisoner could pass an object to the prisoner after she had been patted down when a correctional officer was not looking (R. 72-75, 255-56).
Contraband or weapons can also be moved through food trays or garbage bags that were collected and moved by building workers or in the mops and cleaning buckets used by those workers (R. 76, 257). As a result, building workers who moved between different tiers of the division could either willingly or be forced to unwillingly move a weapon or an item of contraband to a different location in the division after it had been searched during the weekend lockdown (R. 258). Building workers have been found in possession of contraband at the jail (R. 193). Thus, it would be wrong from a correctional and security perspective to assume that simply because living unit and building workers had a minimum security classification, that they

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would not either willingly participate or that they could not be forced to participate in the trafficking or movement of weapons, drugs or contraband at the jail (R. 192).
Additionally, there are fire doors for each tier in Divisions III and IV which open up onto a common stairwell that is used for prisoner movement during weekend lockdowns (R. 259-61). Correctional staff at the jail have found items of contraband that have apparently been slid under a fire door into a stairwell so that it could be picked up another prisoner who was walking up or down that stairwell (R. 260). If prisoners were released from their cells after a search of the tier was completed during the lockdowns that occurred in Divisions III and IV, prisoners could slide contraband under the fire door which could then be retrieved by another prisoner who was walking up or down that common stairwell (R. 262). By keeping prisoners in their cells during the weekend lockdowns after the tier had been searched, correctional staff attempted to eliminate that means of moving contraband onto or off of a tier during a weekend lockdown (R. 264). Prisoners have also attempted to pass items into and through vents or ducts located in jail cells and in various common areas of the jail by the use of string to prisoners on tiers above or below them (R. 265).
Because correctional staff at the jail wanted to make the search for weapons and contraband as effective as possible during a weekend lockdown, in view of the prisoner movement off of the tiers that occurred during those weekend lockdowns and the ability to pass items through vents or shafts or under fire doors, correctional staff felt it was imperative to keep the division on lockdown and not release prisoners from their cells into the dayrooms until the search of the entire division was completed (R. 266).
Additionally, permitting prisoners to have access to the dayroom area after a tier had been searched would permit a prisoner to potentially transport a weapon or item of contraband into the dayroom where not just one or two other prisoners from that cell were located, but where an entire tier of prisoners could mingle and interact. If such an operational practice were permitted, a prisoner could transfer possession of a weapon or item of contraband to any other prisoner on the tier if she was so inclined, to use a weapon against another prisoner in the dayroom or to hide the weapon or contraband in the dayroom after it had been searched (R. 267). It was the opinion of the jail's administration that such an operational practice - permitting prisoners to be out of their cells after the search of the tier was completed - should not be permitted because the typical weekend staffing pattern in the division could not be followed
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(

during the weekend lockdowns because a number of correctional officers were pulled from their

normal posts and assigned to a team that searched other areas of the division (R. 268).

Further, because the number of correctional officers assigned to a division was less on a

weekend than a weekday and because correctional officers were pulled from their usual

assignments to participate in searches that occurred during a weekend lockdown, it was the

opinion of jail administrators that allowing a group of potentially violent prisoners to mingle in

dayrooms and other similar areas for an extended period of time during a weekend lockdown

could be more dangerous to staff and prisoners should a disturbance occur in a dayroom and that

the prisoners would be safer if they remained in their cells during weekend lockdowns (R. 268-

69). If a disturbance occurred in a jail cell, only two or perhaps three prisoners who were

assigned to that cell would have to be controlled (R. 270). If prisoners were allowed out into the

dayroom after a search of the tier was completed, between 30 and 50 prisoners would potentially

have to be controlled if a disturbance occurred in the dayroom during a weekend lockdown (R.

270-71). This concern was especially heightened on those tiers where large numbers of gang

members or prisoners with maximum security classifications were housed together (R. 272).

K

PROGRAMS OFFERED To FEMALE PRISONERS AT THE JAIL.

Historically, the Sheriff has offered various programs to female prisoners in Divisions III and IV of the jail (R. 277). Any female prisoner under the age of twenty-one (21) who does not have a high school diploma is eligible to participate in the York Alternative School at the jail which offers a high school education program sponsored by the Chicago Board of Education (R. 278-79). Special education is also offered to prisoners up through the age of twenty-two (22) through an inclusion model at the jail (R. 280). The jail also makes college-level courses available through the City colleges (R. 281 ).
The jail has contracted with Gateway to provide substance abuse treatment in its various divisions including Divisions III and IV (R. 282). The services of Alcoholics and Narcotics Anonymous are also available in each division of the jail (R. 283). The jail also provides prenatal classes and classes on problem pregnancies to female prisoners with information on nutrition, safe sex, parenting skills, exercise and personal hygiene for detainees (R. 289). The American Correctional Association in its last certification of the Cook County Jail commended the jail on the number and variety of programs which are offered to the prisoners there (R. 292).

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L.

STAFFING ISSUES DURING WEEKEND LOCKDOWNS.

During the weekend lockdowns that occurred in Divisions III and N, all essential posts in a division had to be staffed by correctional officers at all times while the lockdown remained in effect (R. 239). Security posts which had to be staffed at all times included all entrances and exits to the division, the division's security office, the front lobby, the main interlock into the division, the tunnel area through which access into the division can be gained and the various tier monitoring stations (R. 240). Each division of the jail has its own separate clothing and storage rooms where a prisoner's personal belongings, as well as jail uniforms, pillows, sheets, blankets and mattresses are stored. Those rooms had to remain open during weekend lockdowns so that discharged prisoners could return their jail uniforms, mattresses, blankets and pillows from their cell and obtain their personal clothing and belongings and so that new prisoners could obtain the items before being escorted to their cells by a correctional officer (R. 241). The division's clothing, storage rooms and visiting areas also had to be staffed during a weekend lockdown by correctional officers (R. 242).
Generally, there are less correctional officers working at the jail on weekends than during weekdays because prisoners are not transported to county courtrooms or to the IDOC on weekends (R. 249-250). A higher number of correctional staff also call in sick or take a lot of "comp time" on weekends during the weekdays which impacts the total number of correctional officers available for a division during a weekend lockdown (R. 251). Weekend staffing patterns that were typically followeq in Divisions III and IV were not followed on lockdown weekends because officers were pulled from their normal assigrunents to search areas of the division (R. 252). Correctional officers were not pulled from other divisions of the jail to perform the weekend lockdown searches that occurred in Divisions III and IV. The jail did not have extra correctional officers working on the weekends and that type of temporary reassigrunent could create staffing issues and possible operational risks in other divisions of the jail because officers would have to be pulled from their regular assigned posts or duties (R. 296). Additionally, a routine temporary reassigrunent during a weekend lockdown would violate the terms of a collective bargaining agreement entered into between the Sheriff and the bargaining unit for correctional officers at the jail (R. 293-94).

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M. NUMBER OF CORRECTIONAL GUARDS AT THE JAIL.

In 1995, there was 2,496 correctional officers at the jail (R. 297). From 1996 through 1998, there were 2,446 correctional officers at the jail (R. 298). From 1998 through 2001, the number of correctional officers at the jail was 2,426 (R. 299).
The Sheriff can recommend it has no direct control over his annual budget at the jail which by statute is set by the Cook County Board of Commissioners (R. 300). The maximum number of correctional officers that can work at the jail, and their pay is capped on a yearly basis by that annual budget (R. 301).
IV. LEGAL ARGUMENTS IN SUPPORT OF SUMMARY JUDGMENT

A.

BECAUSE PRISONERS WERE NEVER OUT OF THE SIGHT OR HEARING OF

CORRECTIONAL OFFICERS FOR AN EXTENDED PERIOD OF TiME PLAINTIFFS HAVE

NoVALID CLAIM UNDER SEVENTH CIRCUIT'S DECISION IN HART.

The cause of action specifically recognized by the Seventh Circuit in its Hart opinion focused on the essence of plaintiffs' claim - that plaintiffs' constitutional rights under the Fourteenth Amendment were allegedly being violated because during the weekend lockdowns, "the jail [was] subjecting [plaintiffs] to a risk of serious harm by an unreasonably protracted detention out ofthe sight and hearing of the guards." Hart, 396 F.3d at 894.
However, as defendants have demonstrated above, during the course of those lockdowns, 30 minute security checks were made (R.203-09), and three (3) additional "head counts" were made each day (R. 210-12). Those security checks and head counts were made by a correctional officer visually or verbally checking on the status of prisoners in their cells (R. 205, 211). Additionally, correctional officers either delivered meals to prisoners in their cells or accompanied a "living unit worker" when those meals were delivered while a lockdown was in effect (R. 213-15). Furthermore, every time a prisoner returned to her cell during a lockdown, a correctional officer had to accompany the prisoner to her cell because the cell doors in Divisions III and IV had to be manually locked (R. 216-19). Those operational practices establish as a matter of law, that prisoners were not out of the sight and hearing of correctional staff for an umeasonable period of time during the weekend lockdowns at issue.
Butera v. Cottey, 285 F.3d 601 (7th Cir. 2002), concluded that the Sheriff of Marion County Indiana had taken appropriate precautionary measures against violence in his jail. In support of that conclusion, the Butera court pointed to the fact that the officers patrolled the

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cellblock "once per hour and during meals." Butera, 285 F.3d at 608. Butera observed that

during those times, detainees could bring to a guard's attention the fact that a detainee was

having problems with his cellmate. Id.

Here, correctional officers made security checks twice as often than in Butera (every 30

minutes). Correctional officers also made head counts three times each day a lockdown was in

effect and, as in Butera, they were also present when meals were delivered to prisoners in their

cells. Because the cells in Divisions III and IV had to be manually locked, a correctional officer

had to walk all prisoners back to their cells. During the weekend lockdowns at issue, there were

numerous when correctional officers checked on the status of their prisoners in their cells and

numerous opportunities for prisoners to bring problems or concerns to the attention of

correctional staff. Thus, following Butera, the Sheriff took more than appropriate measures to

ensure the safety of the prisoners during the course of the weekend lockdowns and defendants

are entitled to summary judgment as a matter oflaw.

B.

PLAINTIFFS LACK STANDING To OBTAIN INJUNCTIVE RELIEF AND THEIR CLAIMS FOR

INJUNCTIVE RELIEF ARE MOOT.

Plaintiffs' claim for injunctive relief is moot. The jail is no longer holding weekend lockdowns of the type at issue and the current Acting Director of the jail has no intention of reinstituting them (R. 273-76). In fact, plaintiffs asserted in the very first paragraph of their Third Amended Complaint that since approximately March 2003, the jail has stopped holding weekend lockdowns in the women's divisions of the jail. Accordingly, plaintiffs lack "standing" to seek injunctive relief. Standing to bring a claim is an essential element "of the case-orcontroversy requirement of Article III ofthe constitution." Perry v. Village ofArlington Heights, 186 F. 3d 826, 829 (7th Cir. 1999). To establish standing, plaintiffs must "show that [they 'have] sustained or [are] immediately in danger of sustaining' some direct injury as a result of the challenged official conduct, and that the injury or threat of injury must be hath 'real and immediate,' not 'conjectural or hypothetical."' City ofLos Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Past exposure to allegedly illegal conduct does not grant a party standing to obtain injunctive relief. !d. Lyons held that plaintiffs lacked standing to obtain injunctive relief because they could not show that they would be subjected to a choke hold by members of the City's police department.

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Where an issue has been rendered moot for purposes of pending litigation, plaintiffs are

precluded from obtaining injunctive relief that a part's past practices purportedly violated federal

law. Green v. Mansour, 474 U.S. 64, 69-73 (1985). If there is no continuing conduct that

allegedly violated federal law, an Article III court lacks the authority to enter injunctive relief.

Dial v. Coler, 791 F.3d 78, 80 (7th Cir. 1986). For the aforementioned reasons, plaintiffs lack

standing to obtain injunctive relief in this matter.

Plaintiffs cannot avoid their lack of standing or dodge the mootness doctrine by

speculating that they "could" again be subjected to a weekend lockdown search at some point in

the future if they happen to be arrested again and if the jail happens to reinstitute its now

discarded practice of holding weekend lockdown searches. "The capable of repetition doctrine

applies only in exceptional situations and generally only where the named plaintiff can make a

reasonable showing that he will again be subject to the alleged illegality." Higgason v. Farley,

83 F. 3d 807, 811 (7th Cir. 1996). Simply put, plaintiffs cannot make such a showing, and there

claims for injunctive relief should be summarily rejected based upon the authorities cited above.

C.

WEEKEND SEARCHES FOR CONTRABAND HAD A LEGITIMATE PURPOSE.

Defendants submit that no further analysis is required of the claim recognized by the Seventh Circuit in this matter in light of the legal and factual arguments noted above. However, in light of the pendency of defendants' Motion to Strike and Dismiss plaintiffs' Fourth Amended Complaint, to the extent that plaintiffs view their claim to be any broader than the specific cause of action recognized by the Seventh Circuit in Hart, defendants submit the following additional argument and authorities in support of their sunnnary judgment motion.
The purpose of the weekend lockdowns formerly held at the jail was not to punish the detainees at the jail, rather they were to search for weapons and contraband before a violent outbreak at the jail occurred (R. 62-64). The discovery and confiscation of weapons, drugs or items of contraband makes the jail a safer and more secure facility for both staff and prisoners (R. 66). No one can dispute the legitimacy of that purpose. Indeed the Seventh Circuit has recognized that "[a]n inmate in possession of a weapon can pose a threat to prison employees, other inmates and the surrounding community itself." Spiegla v. Hull, 371 F.3d 928, 936 (7th Cir.2004). In Bell v. Wolfish, 441 U.S. 520 (1979), the Court similarly noted that jail officials "must be able to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees." Id. at 540. In a slightly different context, the Supreme Court

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recently reaffirmed that the "necessities of prison security and discipline" supply a compelling governmental interest. Johnson v. California, _U.S._, 125 S. Ct. 1141, 1150 (2005).
The constitutionality of the weekend lockdowns depend upon whether the conditions during the lockdowns "amount to punishment of the detainee." Bell, 441 U.S. at 535. "Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination" turns on whether those lockdowns were rationally connected to that purpose (the search for weapons and contraband) or were excessive in relation to that purpose. ld. at 538.
Since security related problems at correctional facilities are not susceptible to easy solutions, the Supreme Court has cautioned that correctional officials should be afforded wideranging deference in the adoption and execution of policies and practices, that in their judgment are needed to preserve order and maintain security. !d. at 547-48. That is especially true for a facility as large and complex as the Cook County Jail (R. 13-14). Recently, the Seventh Circuit described the jail as having the population "of a town," Holly v. Woolfolk, 415 F.3d 678, 679 (2005), and recognized the dangerousness of the jail's general population. !d. Indeed, the jail admits approximately I00,000 persons annually (R. 19), 34% of whom are classifted as "maximum security'' (R. 42).
"The fit between the jail's legitimate interests and its policy need not be perfect in order to survive scrutiny, it need only be rational." Russell v. Richards, 384 F.3d 444, 448 (7th Cir. 2004). Bell explained that a particular restriction or condition would not be reasonably related to a legitimate goal "if it is arbitrary or purposeless." 441 U.S. at 539. (emphasis added). In an analogous context, the Supreme Court explained that "a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner v. Safley, 482 U.S. 78, 89-90 (1987). When a condition is found to be arbitrary or purposeless, Bell explained that "a court permissibly may infer that the purpose of the governmental action is punishment that may not be constitutionally inflicted." !d.
In the case at bar, the weekend lockdowns where not arbitrary or purposeless. There is no dispute that they were intended to increase the safety of the jail. Contraband was found during the weekend lockdowns of the jail (R. 67-69). Clearly, discovery of contraband and weapons in the jail made it a safer and more secure facility for both correctional staff and the prisoners housed there (R. 66). Thus, there was a rational relationship between the weekend
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1ockdowns and the jail's legitimate interests in maintaining security at the jail and attempting to

prevent detainees from having weapons or items of contraband.

D.

EXISTENCE OF DIFFERENT OR PURPORTEDLY BETTER POLICIES IS IRRELEVANT.

Before turning to the second part of Bell's two-prong test - whether the weekend lockdowns were "excessive in nature" - one point bears mentioning. The Seventh Circuit has repeatedly held "the 'existence or possibility of other policies which might have been used does not mean that the [jail officials were] being deliberately indifferent.'" Palmer v. Marion County, 327 F.3d 588, 593 (7th Cir. 2003), quoting Buttera, 285 F.3d at 605; see also Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2001). Thus, the fact that plaintiffs believe that there may have been other or better ways to search for contraband at the jail or another way the weekend lockdown searches could have been run does not establish that the way the lockdowns violated the constitution.

E.

MERELY BECAUSE PLAINTIFFS WERE KEPT IN THEIR CELLS LONGER THAN UNDER

NORMAL CONDITIONS DOES NOT ESTABLISH A CONSTITUTIONAL VIOLATION.

In its Hart opinion, the Seventh Circuit did not hold that a cause of action was stated merely because prisoners were locked up over a weekend. Rather, a claim was stated because they were allegedly out of the sight and hearing of the correction officers during the entirety of a weekend lockdown. Hart, 396 F.3d at 894. Conspicuous by its absence was any suggestion by the Seventh Circuit in Hart that the length of a lockdown was in and of itself violative of the Constitution.
In Hutto v. Finney, 437 U.S. 678, 687 (1978), the Court observed that conditions may "be tolerable for a few days and intolerably cruel for weeks or months." Thus, while there may come a point in time when a challenged condition crosses the constitutional threshold by virtue of its continued existence, periodically keeping prisoners in their cells over a portion of a weekend does not suffice. See, e.g., Caldwell v Miller, 790 F.2d 589, 600 (7th Cir. 1986) (being confined to cell 24 hours a day for a month did not violate the constitution); Potter v. Clark, 497 F.2d 1206, 1208 (7th Cir. 1974) (holding a pretrial detainee's placement in isolation on four occasions totaling eight days did not constitute punishment and finding the confinement was brief); Buck v. Lake County Sheriff, 2004 WL 2983966 *5-6 (N.D. Ill. 2004) ("Punishment requires something more than routine discomfort. Punishment in a constitutional sense requires allegations of extreme deprivations of an extended period of time").

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The fact that plaintiffs were allegedly locked in their cells for 48 to 50 hours, even if true, (and as demonstrated above it is not), would not establish a constitutional violation. Nor could it, because an acceptable correctional practice is to lock prisoners in their cells at night and at other times during the day. In fact, under "normal conditions" plaintiffs were locked in their cells at night and during afternoon shift changes (R. 28-30). Hart does not suggest that the Sheriff or any other jailer could not lock prisoners in their cells at night or at other times.
Following a prison disturbance, a lockdown of the jail or one of its divisions may be necessary to search for weapons. Plaintiffs do not contest the need to conduct that type of emergency lockdown (Ex. A, '1[27). The very same conditions and risks that supposedly existed during the weekend lockdowns would be present whenever plaintiffs were locked in their cells at night or at other times. Whenever they were locked in their cells, according to the logic of their legal theory, plaintiffs would have been out of the sight and hearing of correctional officers at the tier monitoring station. If such a practice is constitutionally acceptable when prisoners are locked in their cells at night or following a prisoner disturbance, then the weekend lockdowns at issue should be constitutionally permissible in view of the security checks, head counts and other operational practices that were followed during the lockdowns through which correctional officers routinely checked on the status of prisoners in their cells.
Moreover, if a lockdown of the jail of a similar duration to search for weapons would be permissible following a riot or disturbance, why wouldn't the same lockdown be constitutionally permitted to search for weapons or contraband before the disturbance occurred? Indeed, the Seventh Circuit has held that "prison officials need not wait for a problem to arise before taking steps to minimize security risks." Hadi v. Horn, 830 F.2d, 779, 784 (7th Cir. 1987). See also Jones v. N.C. Prisoner's Labor Union, Inc., 433 U.S. 119, 132-33 (1977) ("responsible prison officials must be permitted to take reasonable steps to forestall a threat" before it occurs).
In the case at bar, given the fact that: (1) all prisoners on a tier were permitted out of their cells while those cells were being searched; (2) that prisoners with prearranged visits with family or friends or visits with an attorney- whether prearranged or not- were permitted to leave their cells for those visits (including two of the named plaintiffs); (3) that prisoners were permitted out of their cells to receive necessary medical or psychiatric care or treatment (including another one of the plaintiffs); and (4) that sizeable number of prisoners were permitted out of their cells to work during those "lockdowns," the incremental amount of additional time that plaintiffs were
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kept in their cells during a weekend lockdown over the jail's "normal conditions" did not violate plaintiffs' constitutional rights under the circumstances.

F.

PRISONERS WERE NOT EXPOSED To GRATUITOUSLY BRUTAL TREATMENT AND

LOCKDOWNS WERE NOT EXCESSIVE IN RELATION TO THEIR PURPOSE.

Hart elaborated that where the issue involves whether a pretrial detainee is being allegedly punished by virtue of the conditions of her confinement, "the standards applicable to complaints by convicts and by pretrial detainees about unsafe conditions of confinement merge."2 Id. Hart explained that when the issue involves the allegedly "brutal treatment" of inmates, the "interests of the prisoner is the same whether he is a convict or a pretrial detainee." Id. at 893. Both a convicted prisoner and a pretrial detainee have "an interest in being free from gratuitously severe restraints and hazards, while the detention facility has an interest in protecting the safety of inmates and guards preventing escapes." Id. Hart's requirement that a plaintiff allege a "gratuitously severe" restraint is analogous to Bell's "clearly excessive" prong.
In the case at bar, the manner in which the weekend lockdowns were held did not expose prisoners to gratuitously brutal treatment. Essential services were provided to them at all times during those lockdowns (R. 91-93). Nursing staff was available at all times to provide, evaluate, treat and care for the prisoners during a lockdown (R. 102). Nurses visited the tiers to provide medication and care (R. 103). If medication or treatment could not be provided at a prisoner's cell, the prisoner was transported to the division's nursing station for care and then to Cermak or some other hospital facility if a higher level of care was felt by the nurse to be necessary (R. 105, 150-53). In the event a psychiatric referral was needed for a prisoner during a weekend lockdown, prisoners were sent for such evaluation (R. 159-162).
Prisoners were also allowed to have visits with family and/or friends during a weekend lockdown where a visit was previously scheduled (R. 134-37, 143-49). Attorney visits were also permitted on lockdown weekends (R. 138). Meals were delivered (R. 213), correctional staff checked on the status of prisoners every 30 minutes and made head counts three times each day during a lockdown (R. 203-212). There were ample opportunities for prisoners to speak to

2

As reiterated by Hart, where a prisoner challenges the conditions of his confinement, the standard

"PPlicable under the Fourteenth and Eighth Amendments is identical. See, e.g., Mayoral v. Sheahan, 245

F.3d 934, 938 (7th Cir. 2001) (applying deliberate indifference standard to a pretrial detainee's claim that

correctional officers failed to protect him from another inmate's assault); Zentmeyer v. Kendall County,

Ill., 220 F.3d 805, 810 (7th Cir. 2000) (applying deliberate indifference to a clatmed denial of medical

care and noting "the Fourteenth Amendment protects pretrial detainees under the same standard as the

Eighth Amendment.

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correctional staff about their problems and concerns (R. 212, 215, 219). Indeed, every time food

was delivered, a prison worker returned to her cell or any other prisoner was returned following a

visit, receipt of medical care or a psychiatric screen, correctional officers would walk the prisoner to her cell which allowed other prisoners to speak to the guard (!d.).

G.

ASSERTIONS ABOUT AsSAULTS AND A SUPPOSED LACK OF CARE Do NOT ESTABLISH

PLAINTIFFS WERE EXPOSED To SYSTEMIC GRATUITOUSLY BRUTAL TREATMENT As A

RESULT OF LOCKDOWNS.

1.

No CONSTITUTIONALLY RECOGNIZED CLAIM FOR FEAR FOR PERSONAL

SAFETY.

Ordinary tort elements of injury and causation apply to plaintiffs' §1983 claim. Plaintiffs
must demonstrate that they have suffered from an "actual present injury and a causal connection between that injury and the deprivation of a constitutionally protected right." Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999). Plaintiffs cannot state a constitutional claim for damages attributable to their fears for their personal safety and well-being.
Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996) explained "it is the reasonably preventable assault itself, rather than any fear of assault, that gives rise to a compensable claim under the Eighth Amendment." In so holding, Babcock rejected a claim where the plaintiff "allege[d] that he suffered severe psychological distress as a result of finding himself in the proximity of those who would kill him." !d. at 271. While not condoning lapse security practices that may lead inmates to fear for their safety, the Seventh Circuit held that "Babcock's claim of psychological injury" was not actionable. !d. at 272.
Similarly, Doe v. Welborn, 110 F.3d 520 (7th Cir. 1997), held that "[a]n allegation that prison officials exposed a prisoner to a 'risk of violence at the hands of other inmates,"' was not actionable. !d. at 524. Doe rejected plaintiff's claim despite the fact that plaintiff claimed that he was subjected to "terror, psychological harm and deterioration, and suicide attempts that come from living with the constat threat of death." Thus, allegations that the lockdowns were unpleasant, humiliating or even terrifying, which caused plaintiffs to experience great emotional distress does not make their claim compensable. Rather, plaintiffs must assert some form of compensable harm before their claim becomes actionable.3

3

Plaintiffs Hart and Morales do not claim that they were physically injured or were denied medical

care during weekend lockdowns (R. 302-04). Ms. Gandy did not experience any physical trauma or

injury (other than shortness of breath allegedly due to asthma for which she was treated R. !56) during a

weekend lockdown (R. 305), and she has not obtained any type of care, counseling or treatment for any

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2.

PLAINTIFFS HAVE FAILED To ESTABLISH A FAILURE TO PROTECT CLAIM.

Only plaintiffs Koss and Gelco claim that they suffered any physical trauma from a cellmate during a weekend lockdown (see footnote 3 below and Ex. A, '1['1[12, 49 for Ms. Morales). As explained below, even those assertions fail to state a cause of action under a failure to protect theory and thus, lend no credence to the claim that they or any other plaintiff was subjected to gratuitously severe conditions during the lockdowns.
To establish deliberate indifference, "a defendent must both be aware of facts from which the inference can be drawn that a substantial risk of harm exists, and he must also draw that inference." Farmer v. Brennan, 511 U.S. 825, 834 (1994); Mayoral, 245 F.3d at 938. Allegations that a defendant simply "knew or should have known" of a particular hazard is insufficient to state a claim. Steidl v. Gramley, 151 F.3d 739, 740 (7th Cir. 1998). Rapier v. Harris, 172 F.3d 999, 1006 (7th Cir. 1999), explained that "to violate a pretrial detainee's due process rights, prisoner officials would have to intend him to die or to suffer grievously, or they would have to act indifferently to a known risk that he would die or suffer grievously." It then reiterated "any act with a state of mind less than intent or criminal recklessness, such as negligence or gross negligence does not amount to punishment." /d. See also, Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) ("conduct is 'deliberately indifferent when the official has acted in an intentional or criminally reckless manner, i.e., 'the defendant must have known that the plaintiff was at serious risk of being harmed [and] decided not to do anything to prevent that harm from occurring even though he could have easily done so"').
While advanced knowledge of every detail of a putative assault is not necessary to meet the deliberate indifference threshold, a claim "cannot be predicated merely on knowledge of general risks in prison." Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000). Because prison officials cannot be held vicariously liable under a theory of respondeat superior, demonstrating that correctional officers knew about a risk without more, will not impute knowledge to the officer's superiors. Butera v. Cottey, 285 F.3d 601, 607 (7th Cir. 2002). Unfortunately, despite the best efforts of administrators and staff, the risk of inmate assault is ever present at many prisons and correctional facilities around the country.

type of psychological, mental or emotional problem following Ms. Gelso claims he was struck by her cellmate and received lockdown, she never sought care or treatment for that alleged from the jail less than two weeks later (R. 308-09).

the weekend lockdowns an unspecified injury to injury to her jaw when

(R.
her she

307). While jaw during a was released

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' '.

Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 31 of 33 PageID #:759

Against this backdrop, plaintiffs have not pled nor have they proven that the Sheriff (or anyone else for that matter) was aware of the violent propensity of Ms. Koss and/or Ms. Gelco's celhnates, or was aware of any threat which their respective cellmates posed either to them or to those detainees during weekend lockdowns. Knowledge of general risks does not suffice. Accordingly, Ms. Koss and Gelco's allegation would not establish a claim under a failure to protect theory even if it had been pled, and do not support a claim that they individually or plaintiffs collectively were deliberately exposed to gratuitously brutal conditions by the defendants.

H.

PLAINTIFFS' DENIAL OF MEDICAL CARE ALLEGATIONS Do NOT ESTABLISH A

CONSTITUTIONAL VIOLATION.

Plaintiffs' allegations concerning the purported denial of medical care similarly fail to establish that they were exposed to gratuitously brutal treatment during a weekend lockdown. In order to establish a denial of medical care, plaintiffs must assert that the Sheriff was deliberately indifferent to their medical needs. Chapman v. Keltner, 24 F.3d 842, 845 (7th Cir. 2002). Liability is only triggered by conduct that is intentional or criminally reckless. Jd. Thus, plaintiffs must assert that: (I) they had an objectively serious injury or medical need; and (2) that the Sheriff knew the risk of injury was substantial, but nevertheless failed to take reasonable measures to prevent it. Jd. Additionally, the constitution does not require immediate administration of non-emergency medical care during a lockdown. Lucien v. Godinez, 814 F. Supp. 754, 757 (N.D. Ill., 1993). In Lucien, Judge Shadur held that the delay of a little over two weeks for non-emergency treatment of pain in the plaintiffs knee and jaw during a lockdown did not rise to the level of a constitutional violation.
In light of the foregoing, plaintiffs' contentions concerning a purported denial of medical treatment during the lockdowns not only fail to state a claim, they do not establish that the conditions during the weekend lockdowns were "gratuitously severe." While Ms. Gelco claims that she was struck in the jaw by a celhnate (Ex. A, ~49), she does not allege that she requested medical attention, nor does she allege that it was denied to her (R. 308-09). Her allegations also do not establish a serious medical need that required immediate attention. See Lucien and Echols v. Skipper, 2001 WL 936128 *5 (N.D. Ill. 2001), (bruises, scrapes and a small cut do ot approach the level of constitutional concern); Davis v. Jones, 936 F.2d 971, 972-73 (7th Cir. 1991) (a detainee's scraped elbow and one-inch cut in his temple were not objectively serious injuries and

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t
the failure to offer medical care was not improper). The same can be said of Ms. Koss' allegations (Ex. A, '1['1[52 and 18). While it is unfortunate that she alleged suffered them, there is no treatment for a black eye, a bloody nose or a cut lip or having a clump of hair pulled out. Ms. Koss does not allege that the purported denial of treatment for those injuries resulted in any worsened condition. As noted above, several plaintiffs did not suffer any injury or trauma necessitating treatment and two plaintiffs acknowledged receiving medical care during a lockdown (R.305-05, 307, 156-57).
While several of the plaintiffs allege that they were pregnant and were purportedly denied prenatal care, they do not explain what purported care they requested or what care was denied. Women go for weeks at a time without seeing their physician during various stages of their pregnancy. Thus, because plaintiffs' do not allege what care was supposedly requested, to whom they made their request or what care they requested, they have failed to demonstrate that prenatal care was required during the weekend lockdowns and thus, have failed to establish a claim against the Sheriff. While Ms. Koss claims that during a lockdown she was pregnant and experienced labor pains (Ex. A, '1[18), she admitted in her interrogatory answers that she was seen by a nurse and given medication for those pains (R. 157). As noted above, nursing staff was available 24 x 7 during the course of the weekend lockdown (R. 102-06, 150-53) and therefore, plaintiffs' claim fails as a result.
Several plaintiffs claim that they were denied medication. However, nursing staff as a matter of routine administered medication to prisoners during weekend lockdowns on the tiers and at the division's medical dispensary (/d.). Even assuming plaintiffs' contention is true, it establishes nothing more than an isolated failure by a nurse to provide medication rather than some broad based practice that occurred as a result of a weekend lockdown.
In summary, there are no facts to establish that the Sheriff knew and consciously disregarded the fact nursing staff failed to provide plaintiffs with medication during the lockdowns. Plaintiffs simply allege that "Defendant SHEAHAN knew or should have known that female inmates are subjected to unreasonable non-emergency weekend lockdowns," which "serve no legitimate penological purpose and violate Plaintiffs' constitutional rights" (Ex. A, '1[52). Allegations that a defendant "should have known" about an alleged constitutional violation amount to mere negligence. Steidl, 151 F.3d at 740. In light of the evidentiary materials
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Case: 1:03-cv-01768 Document #: 88-2 Filed: 09/13/05 Page 33 of 33 PageID #:761

provided by defendants, plaintiffs have failed to establish gratuitously brutal treatment by the

defendants during the weekend lockdowns in question.

WHEREFORE, defendants pray that this Honorable Court enter judgment in their favor

and against the plaintiffs on their Motion for Summary Judgment.

Dated: September 13, 2005

Respectfully submitted,
/?
By:---:~~~~(fl.~~~=:__ _
EFENDANTS, MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY
~~T~-Je7j"1¥ By: ASSISTANT STATE'S ATTORNEY, PATRICK DRISCOLL, CHIEF CIVIL ACTIONS BUREAU, OFFICE OF THE STATES ATTORNEY OF CooK COUNTY

Steven M. Puiszis James C. Vlahakis HINSHAW & CULBERTSON LLP 222 North LaSalle Street Suite 300 Chicago, Illinois 60601-1081 (312) 704-3000

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 Case: 1:03-cv-01768 Document #: 137 Filed: 07/13/07 Page 1 of 16 PageID #:954

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Genise Hart, Carmen Feliciano,

)

FILED

Ann Francis Gelco, Helen Koss

)

Caprice Morales and

)

Michelle Gandy, individually and

)

JULY 13, 2007
MICHAEL W. DOBBINS CLERK, U.S. DISTRICT COURT

and on behalf of a class,

)

)

)

Plaintiffs,

)

No. 03 C 1768

)

vs.

)

JUDGE: James Zagel

)

MAGISTRATE: Ashman

THOMAS DART,

)

SHERIFF OF COOK COUNTY,

)

in his official capacity, and

)

Cook County

)

FIFTH AMENDED COMPLAINT Now comes the Plaintiffs, by and through their attorneys, Thomas G. Morrisey, Ltd., and Robert H. Farley, Jr., Ltd., and consistent with the District Court’s Order of October 25, 2005, present the following Fifth Amended Complaint.
INTRODUCTION 1. The plaintiffs are former pretrial detainees at the Cook County Department of Corrections (“Jail”). The plaintiffs complain that the defendants subject them to a risk of serious harm by unreasonably protracted detentions of them out of sight and hearing of the guards. 2. As pretrial detainees at the Jail, the plaintiffs were subject to weekend lock downs which occur at least once a month. During these lock downs, inmates were confined to their cells starting a 1:30 p.m. on Friday afternoon and were not released until late on Sunday afternoon,
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despite the fact that the searches of their respective tiers were completed prior to that time. 3. The plaintiffs allege that the lock downs were unreasonably prolonged
because each tier had an interlock area which was suppose to be staffed by a correctional officer and it was the only means of entering or departing the tier. These prolonged lock downs serve no justifiable administrative purpose at the Jail.
4. Division Three of the Jail houses women with special medical needs including but not limited to inmates with severe mental illnesses; women in need of prenatal care; women in need of medical care; and women being treated for substance abuse
5. During the lock downs, the Jail failed to provide medical and/or psychological care to female inmates with obvious medical and psychological needs.
6. After a tier was searched during a lock down, the inmates remained in their cells on lock down, despite the fact that there was no valid reason for this restriction. The practice in Division Three was to search a majority of the tiers at the start of the lock down on Friday afternoons. Plaintiffs present the following specific allegations in regards to this practice:
A. On Friday , January 17,2003, commencing with the 3:00 p.m. to 11:00 p.m. shift, a weekend lock down began in Division 3 at the Cook County Department of Corrections (“Jail”).
B. Division 3 maintained an Officer’s Living Unit Logs for each shift which includes the time inmates were detained inside their cells (“time doors locked”) and when the inmates were not permitted access to use the day room in the tier.
C. Tier B-1 is on the first floor of Division 3. The Living Unit Logs for this tier reflect that the doors remained locked from 1:45 p.m. on Friday, January 17,2003 through 4:45
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p.m. on Sunday, January 19,2003. D. On January 19,2003, Lt. Zerbes was the Watch Commander for Division 3/8 on the
1500-2300 shift. At approximately 16:39 hours on that day , Lt. Zerbes issued an order ending the weekend lock down.
E. On Friday, December 20,2002, Division 3 went on a lock down weekend starting with the 1500-2300 shift.
F. During the 1500-2300 shift on December 20,2002 in Division 3, tiers A-1,B-1, A2, and B-2 were searched.
G. On Sunday, December 22,2002, Lt. Zerbes was the Watch Commander for Division 3/8 for the 1500-2300 shift. At approximately 1720 hours, Lt. Zerbes issued an order ending the weekend lock down.
H. Tier A-2 is on the second floor of Division 3. The Living Unit Logs for this tier reflect that the doors remained locked from 1500 hours on December 20,2002 through 1700 on December 22,2002.
I. After the first and second floor tiers in Division 3 were searched on Friday December 20,2002, the inmates continued to remain on lock down in these tiers until the afternoon of December 22,2002.
JURISDICTION AND VENUE 7. Jurisdiction is proper in this court pursuant to 28 U.S.C. Sect. 1331 and 2201, and pursuant to 42 U.S.C. Sect. 1983 and 1988 8. Venue is proper in this district pursuant to 28 U.S.C. Sec. 1391 (b), as all the events
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giving rise to the claims asserted occurred in Cook County. CLASS ACTION ALLEGATIONS
9.(a) Plaintiffs bring this action as a class action pursuant to 23(b)(3) of the Federal Rules of Civil Procedure.
(b) The Class consist of the following class: The class shall consist of all former female inmates at the Cook County Department of Corrections who had been subjected to non-emergency, extended lock downs over a weekend after their tier had been searched at the Jail and who were not incarcerated on March 11,2003. The class shall also include those inmates who were incarcerated at the time of the filing and who had exhausted their available administrative remedies prior to March 11,2003. (c) The class is so numerous that joinder of all persons is impracticable. The practice and policy at the Jail was to lock down the female divisions at the Jail over weekends and to continue the lock downs after their tiers have been searched. Plaintiffs believe that the class probably numbers well over 10,000 female inmates. (d) There are questions of law and fact common to the class. These questions predominate over any questions affecting only individual Class members. These legal and factual questions include: (i) Whether there were weekend lock downs in Divisions Three and Four which were unreasonably protracted; (ii) Whether during unreasonably protracted detentions, plaintiffs were out of sight and hearing of the guards; (iii) Whether during unreasonably protracted detentions, a risk of serious harm to the inmates arose because of the unreasonably protracted detentions out of sight and hearing of the guards.
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(e) Plaintiffs’ claims are typical of the claims of the class . (f) Plaintiffs will fairly and adequately protect the interest of all class members as they are members of the class and their claims are typical of the claims of all class members. Each of the plaintiffs is incensed at the treatment accorded the class members and will aggressively pursue the interests of the entire class. Plaintiffs’ interest in obtaining monetary relief for the violations of constitutional rights and privileges are consistent with and not antagonistic to those of any person within the class. Plaintiffs have retained counsel competent and experienced in complex class action litigation. (g) This matter is brought as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, because a class action is superior to other available means for a fair and efficient adjudication of this controversy. The damages suffered by individual class members are small compared to the burden and expense of individual prosecution of the action to address defendant’s unconstitutional conduct.
FACTS AND PARTIES 10. Plaintiff Genise Hart is a citizen of the United States and resident of the State of Illinois. During the period from January 19, 2003, through February 24,2003, Ms. Hart was an inmate in Division Four at the Cook County Department of Corrections awaiting trial. While incarcerated, Ms. Hart was subjected to a weekend lock down which continued for substantial period after her tier was searched. .
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11. Plaintiff Caprice A. Morales is a citizen of the United States and resident of the State of Illinois. The Plaintiff Morales has been an inmate at the Cook County Department of Corrections on several occasions during the last two years in Division Three and Division Four and has been subjected to numerous lock downs while waiting trial which continued for substantial periods after her tier was searched. During a period when she was in Division Three, she was pregnant and was denied prenatal care.
12. Plaintiff Ann Francis Gelco is a citizen of the United States and resident of the State of Illinois. She has been an inmate at the Cook County Department of Corrections on several occasions during the last two years and has been subjected to numerous lock downs while waiting trial in Division Three and Four which continued for substantial periods after her tier was searched. Plaintiff suffers from a long standing mental illness which is treated with psychotropic medication. During a lock down in Division Three, the plaintiff was pregnant and was not provide with prenatal care or her medication for her mental illness. This caused her to become depressed, anxious and gave rise to suicidal thoughts.
13. Plaintiff Helen Koss was a pretrial detainee in Division IV at the Jail at the time of the filing of the initial complaint. Ms. Kos’s incarceration began on December 16,2002. Ms. Kos filed a grievance regarding the weekend lock downs at the Jail. She was subjected to numerous monthly prolonged weekend lock downs in Division Three and Division Four which continued for substantial periods after her tier was searched. During one lock down in Division Three, plaintiff received a black eye, busted lip, bloody nose and some of her hair was pulled out. She was denied any medical treatment from the correction officers . During a subsequent lock down
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in Division Three, plaintiff was pregnant and experienced labor pains. During a third lock down, a cell mate went into labor, and because there were no guards on duty to call for assistance, the plaintiff assisted in the delivery of the child.
14. Plaintiff Michelle Gandy was a pretrial detainee at the Jail in August of 2001. While a pretrial detainee, Ms. Gandy was subjected to a prolonged weekend lock downs .which continued for substantial period after her tier was searched
15. Defendant Thomas Dart is an elected county official whose duties include implementing and executing policies concerning the operation of the Cook County Jail (Jail) pursuant to 55 ILCS 5/3-15003. Defendant Dart is sued in his official capacity. At all times relevant hereto, Defendant Dart was acting under color of law.
16. Defendant Cook County, under Illinois law, funds the Office of the defendant Sheriff, and is therefore required to pay a judgment entered against a sheriff’s office in an official capacity.
17. At the Jail, female inmates are housed in Division Four and Division Three. Division Four is separated into sixteen separate units which are commonly called “tiers” at the Jail. Each tier has an interlock area which is staffed by a correctional officer and is the only means of entering and departing the tier.
18. Division Three has only six separate units. There are three levels in Division Three, and each floor has two tiers which are separated by a monitoring station. It is impossible for an inmate to pass contraband between tiers on the same floor in Division Three.
19. Inmates who are in need of medical and/or psychological treatment are assigned to
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Division Three. Many of the women are pregnant and/or suffer from severe mental illness. Division Three has one of the highest ratios of correctional officers to inmates at the Cook County Jail.
20. Inside each tier, there is a common holding area, which is called a day room, where inmates receive their meals, have access to pay phones, a television, and can socialize with other inmates in the tier. Each tier has shower stalls, which are adjacent to the day room. The correctional officer is able to monitor from the interlock all the inmates in the day room to maintain security and protection for the inmates from fellow inmates.
21. In Division Three and Four, the cells have solid steel door with a small opening, two bunk beds, a toilet and a sink. Correctional officer can not maintain visual contact with the inmates from the interlock once they are placed inside the cells.
22. Three or four times each month, teams of approximately five to seven correctional officers entered the tiers and conducted random searches called “shakes” of the cells and the day room for contraband and other unauthorized items. It took these correctional officers anywhere from twenty to forty minutes to “shake” a tier. During the “shakes”, the inmates were normally outside the tiers at recreation. Plaintiffs are not contesting the need to conduct periodic “shakes” and emergency lock downs.
23. In addition to the random “shakes” of the tiers, all pretrial detainees were subjected to weekend lock downs at least once a month. During these lock downs, inmates were confined to their cells starting at 1:30 p.m. on Friday afternoon and were not released until late on Sunday afternoon. During the weekend lock-down, each tier in the division was allegedly searched for contraband in the same manner as the random “searches” and it took the correctional staff the
8

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same amount of time to conduct these searches. After a tier was searched, the inmates remained in their cells on lock down, despite the fact that there was no valid or legitimate reason for this restriction.
24. During lock downs, the “Jail” shirked its duty to protect inmates from harm from other inmates by isolating them behind solid steel cell door with either two or three other detainees. The conditions of the lock down were “dungeon” like in that the Plaintiffs could rarely be seen or heard by the correctional officers through the steel cell door. During the lock down, the Plaintiffs were unable to communicate with correctional officers when they were in need of immediate medical or psychological treatment or in need of immediate protection from their cell roommate.
25. The practice at the Cook County Jail was to exclude complaints concerning weekend lock down procedures from the formal grievance process. There was no available administrative remedy for an inmate to complain about weekend lock downs at the Jail.
26. The practice at the Cook County Jail was for supervisors from the housing divisions to collect written grievances from the grievance boxes periodically, record the number of grievances in a grievance collection log and then forward the grievances to caseworkers. On information and belief, many of the grievances were discarded by the supervisors prior to being turned over to the caseworkers.
27. The practice at the Cook County Jail was for caseworkers to initially review the written grievances submitted and to reclassify certain written grievances as requests. An entry is then made in the grievance collection log reflecting the number of “actual grievances”. A written
9

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grievance which was reclassified as a “request” was not treated administratively as a grievance and therefore fell outside the administrative grievance process at the Jail.
28. The practice at the Cook County Jail was to treat written grievances challenging the weekend lock down procedures as requests and not grievances. Carol Merriweather, a detainee at the Jail since July 27,2002 filed a written grievance on April 28,2003, challenging the weekend lockdowns. Her written grievance was reclassified as a request by caseworker Kate Smith. Superintendent Harrison of Division Four, approved of the reclassification of the written grievance.
29. Helen Kos filed a written grievance on December 16,2002, complaining about the weekend lock downs. In her grievance, Ms. Kos said “ I would like to know what can be done about lock down weekends. I feel it is unconstitutional and unfair”. There has been no response by the defendant to the grievance filed by Ms. Kos.
30. Charles A. Fasano is the Director of the John Howard Association. The John Howard Association serves as a monitor of the grievance process at the Jail.
31. Under the “Explanation of Inmate Grievance Procedure”, an appeal to the Grievance Appeals Panel may be made by a detainee “if you have not received a decision and the time limits just mentioned have expired”. (Explanation of Inmate Grievance Procedures, Step 6). According to Director Fasano, the Grievance Appeals Panel did not exist during the year 2002 and therefore was not available to Ms. Kos.
32. Director Fasano also testified that he is aware that inmates frequently inform him that written grievances are discarded by supervisors at the Jail and the written Explanation of the
10

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Grievance Procedures are not made available to inmates. 33. Director Fasano testified in his deposition that the current practices and procedures
followed for weekend lock downs in Divisions Three and Four serve no legitimate penological objective.
34. Upon information and belief, numerous female detainees have objected to and filed grievances concerning the weekend lock down practice. These female inmates have exhausted the available administrative remedies.
35. The Plaintiff Genise Hart was a pretrial detainee in Division Four during the January lock down, (January 24-26, 2003). After her tier was searched during the lock down, plaintiff Hart suffered great emotional distress due to the aforementioned conditions existing during the lock down. Furthermore, the lock down constituted punishment.
36.. Plaintiff Ann Francis Gelco is a former inmate at the Cook County Jail. 37. Plaintiff Gelco has been in the Jail on several times during weekend lock downs. 38. During her incarceration in May, 2002, Plaintiff Gelco was an inmate at Division IV and she was pregnant. On May 31, 2002 the lock down started on a (Friday) at 1:30 p.m. and she was confined in a cell with two other inmates until June 2, 2002 (Sunday). During this period, there was no light in the cell and she had no access to the telephone to call her attorney or family members. 39. During this weekend lock down, Plaintiff Gelco was confined in a two person cell with three people. One of the cell mates was mentally ill, suicidal, violent and made repeated threats to the Plaintiff Gelco. The suicidal cell mate attempted to strangle herself during the lock down with her socks and the Plaintiff Gelco and the other cell mate screamed for help for
11

Case: 1:03-cv-01768 Document #: 137 Filed: 07/13/07 Page 12 of 16 PageID #:965
approximately 30-45 minutes before any correctional officer responded. During this 30-45 minute time period, the Plaintiff Gelco attempted to stop the suicide and was struck in the jaw and injured in the process. When the correctional officers finally arrived, they removed the suicidal cell mate for approximately 5 hours and then returned that cell mate to the Plaintiffs Gelco’s cell for the remainder of the lock down.
40. Due to her medical condition, the Plaintiff Gelso has suffered extreme emotional and physical pain and anguish as the result of the continuation of the weekend lock downs after her tiers have been searched
41. Plaintiff Helen Koss was a pretrial detainee in Division IV at the Jail on March 11, 2003 and has been incarcerated at the Jail since 2001 and has been subjected to numerous monthly prolonged weekend lock downs.
42. During a weekend lock down in April of 2002, plaintiff Koss was attacked by her cell mate and was struck numerous times which caused bruises and she had clumps of her hair pulled out of her head. During this attack, Ms. Koss was yelling for help and no correctional officer responded within a reasonable period of time. It took approximately 10 minutes for an inmate worker to get the attention of a correctional officer due to the fact that there was no officer at the interlock station. When the correctional officer finally arrived, the officer refused to take Plaintiff Koss to receive medical treatment and told her to wash herself up. At no time thereafter, did the Plaintiff Koss receive medical treatment for her injuries.
43. Plaintiff Kos has also suffered extreme emotional and physical pain and anguish as the result of the continuation of the weekend lock downs after her tiers have been searched
44. The Plaintiff Caprice Morales was a pretrial detainee in Division Four during the
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January lock down, (January 24-26, 2003). After her tier was searched during this lock down, plaintiff Morales suffered great emotional distress due to the aforementioned conditions existing during the lock down. Furthermore, the lock down constituted punishment. The plaintiff has also been a pretrial detainee in Division Three in the summer of 2001 during lock down weekends and she also suffered great emotional distress after her tier was searched during this lock down.
45. The Plaintiff Michelle Gandy has been pretrial detainee in Division Four during lock downs in August of 2001 and during other lock downs over the last two years. After her tier was searched during these lock downs, plaintiff Gandy suffered great emotional distress due to the aforementioned conditions existing during the lock down.
COUNT ONE 46. Plaintiffs reallege paragraphs 1-45 as paragraphs 1-45 of Count 1. 46. Defendant Sheriff knew or should have known that female inmates were subjected to unreasonably protracted detentions and that during these unreasonably protracted detentions, female detainees were out of sight and hearing of the guards. Furthermore, the Sheriff knew or should have know that a risk of serious harm to the females inmates arose because of the unreasonably protracted detentions out of sight and hearings of the guards. 47. Defendant Sheriff instituted, sanctioned, and approved the following policies, practices, customs, and procedures regarding the non-emergency prolonged lock downs of female individuals who were in the custody of the Cook County Department of Corrections: A. Female pretrial detainees were subjected to weekend lock downs which occur at
13

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least once a month. B. Although the searches of the Plaintiffs living quarters (Tiers) took less than forty
minutes, the Plaintiffs remained in their cells on lock down even after the searches were completed, where guards lacked the ability to adequately monitor the inmates.
C. The Sheriff failed to protect inmates from harm from other inmates during the lock downs.
D. During weekend lock downs, the Sheriff had a practice and/or procedure where guards would be assigned to cross-watch two or more tiers.
E. During weekend lock downs, female inmates were unable to communicate with the correctional officers that they were in need of immediate medical and/or psychological treatment in part because of the Sheriff’s cross-watching practice.
48. The Sheriff failed to establish appropriate procedures and practices to ensure that lock downs are not unreasonably prolonged.
49. The lock downs of plaintiffs under the above describe abusive conditions constituted deliberate indifference to the rights of the plaintiffs in violation of the Fourteenth Amendments to the U.S. Constitution.
50. As a direct and proximate result of the Sheriff's policies, practices and procedures, in his official capacity, the defendant subjected the Plaintiffs and members of the class to a risk of serious harm because of the unreasonably protracted detentions out of sight and hearings of the guards.
REQUEST FOR RELIEF
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WHEREFORE, the Plaintiffs respectfully request that this Court:

1. Finding that this action should proceed as a class action pursuant to Rule 23(b)(3) of

the Federal Rules of Civil Procedure;

2. Enter judgment on behalf of Plaintiffs and the Class and against Defendants for

monetary damages to be determined at trial;

3. Awarding plaintiffs and the class their costs and attorney’s fees under Title 42 U.S.C.

Sect. 1988.

.

_________________

“/s/” Thomas G. Morissey

One of the Attorneys for the Plainitffs

Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, Il. 60643 (773)-233-7900
Robert H. Farley, Jr., Ltd. 1155 S. Washington Naperville, Il. 60540 (630)-369-0103

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 Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 1 of 25 PageID #:7322

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

GENISE HART, et.al.,
Plaintiffs, v.
THOMAS DART, et.al.,
Defendants.

)

)

)

No. 03 C 1768

)

)

Judge: James Zagel

)

)

)

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF LAW, OR ALTERNATIVELY,
MOTION FOR A NEW TRIAL

NOW COME Defendants THOMAS J. DART, Sheriff of Cook County, and COOK

COUNTY through their attorney ANITA ALVAREZ, State‟s Attorney of Cook County, by her

assistants, Patrick Smith, Kevin Frey, and Maureen Hannon and move this Honorable Court to

grant their renewed motion for Judgment As A Matter of Law pursuant to Rule 50(b) of the

Federal Rules of Civil Procedure, or in the alternative, grant their motion for a new trial pursuant to

Rule 59(a) of the Federal Rules of Civil Procedure.

STANDARD OF REVIEW

Rule 50(b) of the Federal Rule of Civil Procedure provides that if a party files a motion

for judgment as a matter of law under Rule 50(a), “the movant may file a renewed motion for

judgment as a matter of law and may include an alternative or joint request for a new trial under

Rule 59.” Fed. R. Civ. P. 50(b) (2009). The Court should deny a motion for judgment

notwithstanding the verdict when the evidence and all reasonable inferences that can reasonably

drawn from the evidence, viewed in the light most favorable to the party opposing the motion, is

such that “reasonable men in a fair and impartial exercise of their judgment may reach different

conclusions.” Rakovich v. Wade, 850 F.2d 1180, 1188 (7th Cir. 1988)(quoting Smith v. J.C.

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 2 of 25 PageID #:7323
Penny Co., 261 F.2d 218, 219 (7th Cir. 1958)). When deciding whether the evidence is sufficient, the Court may not weigh the evidence, pass on the credibility of witnesses, or substitute its own judgment of the facts for the jury‟s judgment. Rakovich, 850 F.2d at 1188.
Under Rule 59(a) of the Federal Rules of Civil Procedure, “a new trial may be granted to all or any of the parties on all or some of the issues after a jury trial for any reason for which a new trial has been granted in an action at law in a federal court.” Fed. R. Civ. P. 59(a) (2009). The Court should grant a motion for a new trial when the clear weight of the evidence is against the jury verdict, the damages are excessive, or for some other reason the trial was not fair to the moving party. Scaggs v. Consolidated Rail Corp., 6 F.3d 1290, 1293 (7th Cir. 1993). Conduct by the court, counsel or jury, which improperly influences the deliberative process is grounds for a new trial. Hillard v. Hargraves, 197 F.R.D. 359 (N.D. Ill. 2000) (citing McNabola v. Chicago Transit Authority, 10 F.3d 501, 516 (7th Cir. 1993); Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 636 (7th Cir. 1996)). A new trial also may be granted when the non-moving party failed to disclose material information prior to trial. Brandt v. Vulcan, Inc., 30 F.3d 752, 758 (7th Cir. 1994). The moving party must establish that misconduct occurred and caused prejudice to him. Wiedemann v. Galiano, 722 F.25 335, 337 (7th Cir. 1983). The total impact of all errors or irregularities at trial determines whether a defendant is entitled to a new trial. United States v. Williams, 81 F.3d 1434, 1443-44 (7th Cir. 1985) (citing United States v. Boyd, 55 F.3d 239, 243 (7th Cir. 1995)).
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ARGUMENT I. JUDGMENT IN FAVOR OF DEFENDANTS SHOULD BE GRANTED AS A
MATTER OF LAW BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, Defendants renew their Rule 50 Motion for Judgment as a Matter of Law.1 Defendants restate and incorporate by reference all arguments set forth in their Motion for a Directed Verdict pursuant to Rule 50(a), as if fully set forth herein. (Ex. A) Here, the finding of liability is against the manifest weight of the evidence. Moreover, the jury‟s verdict is inconsistent and contrary to the law. 2 Judgment as a matter of law should be entered on behalf of Defendants because the sufficiency of the evidence cannot sustain a verdict for Plaintiffs, and there was no evidence submitted that the Sheriff‟s practice of weekend lockdowns was the moving force behind the alleged constitutional violations or injuries suffered by Plaintiffs. This Court correctly found that weekend lockdowns did not, in and of themselves, violate Plaintiffs‟ constitutional rights. (Dkt. 201) The issue that was left for the jury to decide was whether Defendants‟ procedure in locking down a division for a whole weekend violated Plaintiffs‟ constitutional rights and injured Plaintiffs. Because Dart was sued in his official capacity, Plaintiffs had to demonstrate that a constitutional deprivation was caused by: (1) an express policy; (2) a widespread practice that is so permanent and well-settled as to constitute a custom or usage with the force of law; or (3) a decision by a person with final policy making authority. Baxter by Baxter v. Vigo County School Corp., 26 F. 3d 728, 734-35 (7th Cir. 1994). Further, to prevail, Plaintiffs had to show that the
1 Both Parties moved for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(a) prior to the case being submitted to the jury. (Trial Tr. 601-606) 2 Please note that the exhibits attached to the previous Memorandum in Support of Motion for Judgment as a Matter 2 Please note that the exhibits attached to the previous Memorandum in Support of Motion for Judgment as a Matter of Law or Alternatively, a New Trial are the same exhibits used within this Memorandum. As such, Defendants have not reattached them to this supplemented memorandum.
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official policy or custom was the cause of the alleged constitutional violation-the „moving force‟ behind it. Estate of Sims v. County of Bureau, 506 F. 3d 509, 514 (7th Cir. 2007). “A governmental body‟s policies must be the moving force behind the constitutional violation before liability can be imposed under Monell.” Thomas v. Cook County Sheriff’s Department, 604 F.3d 293, 306 (7th Cir. 2009).” The Seventh Circuit in Thomas noted that in § 1983 actions, the United States Supreme Court “has been especially concerned with the broad application of causation principals in a way that would render municipalities vicariously liable for their officer‟s actions.” Thomas, 604 F.3d at 306, citing Bd. of the County Comm'rs v. Brown, 520 U.S. 397 (1997).
Plaintiffs asserted that weekend lockdown increased the risk of harm to the Plaintiffs and that Defendant Sheriff was deliberately indifferent to that risk. “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of the County Comm'rs, 520 U.S at 410. Deliberate indifference requires that an “official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Riccardo v. Rausch, 375 F.3d 521 (7th. Cir. 2004)(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
A. A Verdict for Plaintiffs is Not Supported by the Evidence. In determining whether there is sufficient evidence to support the verdict, the Court examines whether the evidence presented, combined with all reasonable inferences which may be derived from it, was sufficient to support the verdict. Steffen v. Meridian Life Insurance Co., 859 F.2d 534, 546 (7th Cir. 1988). The evidence is viewed in the light most favorable to the prevailing party. Mathewson v. National Automatic Tool Co., 807 F.2d 87, 90 (7th Cir. 1986). “This evidence must provide a sufficient basis from which the jury could have reasonably
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reached a verdict without speculation or drawing unreasonable inferences which conflict with the undisputed facts.” Selle v. Gibb, 741 F.2d 896, 900 (7th Cir. 1984) (citations omitted). Plaintiffs failed to provide sufficient evidence that would permit the jury to reach a verdict without speculation or unreasonable inferences.
Plaintiffs testified to three separate incidents that occurred during weekend lockdowns where they claimed they suffered physical injuries. Helen Koss testified to suffering physical injuries on two occasions while she was housed in Division 3 during a weekend lockdown. The first occasion was when Koss began to experience false labor pains and was left without medical attention for approximately three hours because there was no officer on the tier. (Trial Tr. 297:24-298:20.) Koss claims that she was able to leave her cell and sit out in the dayroom for two to three hours with no correctional officer present. (Trial Tr. 324:9-326:21.) The other occasion was a fight that occurred between Koss and her cellmate where Koss testified that she was the victim of a massive beating while she was approximately six to eight months pregnant. (Trial Tr. 334:8-336:12.) Ann Gelso testified that she was injured in Division 4 during a weekend lockdown when her cellmate struck Gelso as Gelso attempted to prevent that cellmate from committing suicide. (Trial Tr. 431:25-433:5.) On each of these three occasions, Plaintiffs testified that no officer was on the tier during the periods of time when they were allegedly injured. (Trial Tr. 303:18-21, 325:1-3, 432:8-12.)
The only evidence elicited that an officer was away from the tier for any period of time was in relation to the fact that cross-watching took place during the weekend lockdowns. However, this is not evidence that Plaintiffs were left alone for hours on end. Katie Harrison testified that even if an officer was cross-watching on the inner tiers of Division 4, that officer would be able to see or hear if a detainee from across the hallway was trying to get the officer‟s
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attention. (Trial Tr. 384:1-13, 384:20-385:9.) Martha Salazar testified that in Division 3 both tiers are connected to one interlock, and Katie Harrison testified that the end tiers of Division 4 are connected by one interlock. (Trial Tr. 381:22-24, 576:4-577:5.) Therefore, an officer could see into both dayrooms from the interlock. (Trial Tr. 383:13-16, 577:3-5.) Katie Harrison testified that an officer could not go on a tier without backup, so there was always supposed to be someone in the interlock at all times. (Trial Tr. 409:20-410:8.) Thus, it would be very improbable that Helen Koss was able to stay in the dayroom of her tier in Division 3 for 2-3 hours with no officer present in the interlock, because there was always supposed to be an officer in the interlock. (Trial Tr. 325:17-326:11, 580:13-17.)
Another reason Plaintiffs‟ testimony cannot be believed is because the injuries alleged by both Plaintiffs are not corroborated by the evidence. Helen Koss testified that she was struck multiple times about the head, body and her pregnant stomach and the beating lasted anywhere from twenty to thirty minutes. (Trial Tr. 335:2-336:14.) Koss testified that the extent of her injuries was that some hair was pulled out and she suffered some cuts and bruises, for which she received medical treatment. (Trial Tr. 335:13-21, 337:22-338:3.) The injuries Koss to which testified were not typical of the beating she claims to have suffered; there were no broken bones, loss of consciousness, or harm to her unborn child. Moreover, Koss claimed that she was only seen in the dispensary after this massive beating and was not sent to an outside hospital to get herself and unborn child examined. (Trial Tr. 339:3-8.) Similarly, Koss was not sent to an outside hospital after she suffered false labor pains. (Trial Tr. 339:11-17.) Plaintiff Koss presented no medical evidence to corroborate her self-serving testimony.
Gelso‟s claim is equally suspect. She testified that she was struck by her cellmate for approximately ten to fifteen minutes, but only suffered an injury to her mouth. (Trial Tr. 462:4,
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Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 7 of 25 PageID #:7328
434:14-17.) The injuries she claimed to have suffered are similar to the ones she claimed to suffer in a lawsuit she filed in 2008, where she alleged that she lost several teeth during an altercation. (Ex. B) Gelso also claims that she did not see medical personnel until the following day, even though Martha Salazar testified that if a detainee is involved in an altercation they are taken to see medical staff as soon as possible. (Trial Tr. 466:25-467:3, 579:19-22.) Gelso asserted that she did not get proper medical treatment and needed to see a dentist once discharged from the jail to fix her bridge. (Trial Tr. 468:24-469:20.) However, no evidence of that visit or treatment was ever presented.
Casting further doubt on their testimony was the fact that they failed to present any evidence to corroborate their testimony. Plaintiffs did not call a single doctor, medical professional or present a single medical record. Fontella Brown-Marshall and Martha Salazar both testified that if a detainee is involved in any physical altercation they are taken to the dispensary to be seen by the medical staff. (Trial Tr. 544:20-545:13, 579:19-22.) Both Ms. Salazar and Ms. Harrison testified if a detainee is in need of medical treatment, especially in Division 3 which is medical building, they are taken for medical treatment. (Trial Tr. 391:21-24, 579:19-22.) This is corroborated by the testimony of both Plaintiffs who admit that they received some form of medical treatment after the incidents. (Trial Tr. 339:3-8, 466:25-467:3.) However, Plaintiffs presented no medical records to demonstrate that they were indeed injured and received treatment for their injuries.
Plaintiffs improperly tried to shift the burden of proof by suggesting, through the testimony of Charles Fasano, that Defendant Dart was somehow responsible for the fact that their medical records were not presented as evidence or that the records were missing. (Trial Tr. 510:16-512:13.) Only on the cross-examination of Fasano did it come out that Defendant Dart
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Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 8 of 25 PageID #:7329
had no control over any medical records, including Plaintiffs‟. (Trial Tr. 523:20-524:3.) Moreover, Plaintiffs never claimed to this Court or to the jury that they requested their medical records and that they could not be found. Fasano‟s testimony also does not explain why Gelso failed to present any evidence of the dental procedures she claimed to have received once she was discharged from the jail.
This lack of medical evidence also plagues Plaintiffs‟ alleged psychiatric injuries. Both Plaintiffs asserted that they suffered psychiatric injuries as a result of the weekend lockdowns. (Trial Tr. 428:1-7, 684-685.) Yet neither Plaintiff presented any evidence as to what psychiatric harm was caused, what treatment was received, or that it was linked to the weekend lockdowns. Gelso testified that she has seen a mental health professional since 1995 for a variety of different psychiatric conditions, but he was not called to testify. (Trial Tr. 416:19-25.) There was no testimony or documentation that Plaintiffs received psychiatric treatment during or after their discharge from the jail related to the weekend lockdowns. By failing to present evidence, other than their self-serving testimony, that should have been readily available to them if their stories were true, Plaintiffs failed to establish that they actually suffered any psychological harm or that the weekend lockdowns were the cause of that harm. Therefore, the sufficiency of the evidence presented supports a verdict in the favor of Defendant.
B. The Sheriff‟s Practice of Weekend Lockdowns is not Unconstitutional and not the Moving Force Behind Plaintiffs‟ Injuries.
Even if there were evidence that either Plaintiff suffered an injury, Plaintiffs failed to demonstrate a causal link between these injuries and the manner in which Defendant Dart conducted weekend lockdowns. Moreover, there was no evidence presented demonstrating that Defendant Dart was aware of any increased risk in how the weekend lockdowns were conducted or that there was a widespread problem in how they were conducted.
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Plaintiffs did not present any evidence of an increased risk to their safety during a weekend lockdown as opposed to a regular day. Katie Harrison, Martha Salazar and Fontella Brown-Marshall all testified that there is always some form of risk in the jail whether it is a weekend lockdown or not. (Trial Tr. 392:17-19, 547:8-10, 581:9-12.) Even Plaintiffs‟ expert Shelia Vaughan agreed with this premise. (Trial Tr. 188:8-10.) The testimony of correctional officers and Ms. Vaughan indicated that a detainee could be attacked if an officer was standing five feet away. (Trial Tr. 188:18-189:11, 392:11-19, 547:8-10.) Thus, there was no evidence of an increased risk due to lockdowns. The risk is always present because of the proximity of the detainees to each other. Even if there was evidence of an increased risk, there was no evidence that Sheriff Dart was aware of that risk or that he was aware of any problems with the weekend lockdowns, such as officers out of the sight and hearing of the detainees for hours on end.
As explained above, there was no actual evidence that Plaintiffs were injured. If Plaintiffs were injured in altercations, it was not because of weekend lockdowns, it was because of their cellmates. Katie Harrison, Martha Salazar and Fontella Brown-Marshall all testified that there is always some form of risk in the jail. (Trial Tr. 392:17-19, 547:8-10, 581:9-12.) Fontella Brown-Marshall testified that it is safer to have detainees in their cells as opposed to in the dayroom because in the dayroom there is a higher risk of a group beating. (Trial Tr. 547:2-7.) In addition, detainees are in their cells on average approximately twelve hours a day. (Trial Tr. 187:19-21.) There was no evidence of a heightened risk to Plaintiffs while they were in their cells during a weekend lockdown as opposed to any other day, so there is no support for a conclusion that weekend lockdowns were the moving force behind Plaintiffs‟ alleged injuries.
Moreover, the manner in which the lockdowns were conducted neither allowed Plaintiffs to be left out of sight and hearing of correctional officers for extended periods of time, nor
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caused injuries to Plaintiffs. Operating procedures at the jail during weekend lockdowns required correctional officers to check on the status of prisoners every thirty minutes. (Trial Tr. 387:3-13, 536:16-18.) Case law establishes that checking on inmates two times per hour is not a constitutional violation. See e.g., Butera v. Cottey, 285 F.3d 601 (7th Cir. 2002). In addition to these checks, headcounts were standard practice throughout the jail. (Trial Tr. 534:6-8, 535:9-11, 578:12-15.) Correctional officers either delivered meals to the inmates or accompanied those that delivered meals during the weekend lockdown. (Trial Tr. 390:22-25, 391:7-13, 535:12-14, 536:57, 578:16-18.) Inmates also were permitted to leave their cells for prearranged visits with outsiders, attorney‟s visits, medical or psychological care, and work throughout the lockdown period. (Trial Tr. 388:21-389:1, 390:13-19, 391:23-25, 537:18-538:6, 575:23-576:1, 580:18581:4.) When the cells in a given tier were being searched for contraband, those inmates were taken from their cells to a day room or recreation room. (Trial Tr. 537:18-538:6, 543:18-21.) Jail medical staff also checked on inmates‟ wellbeing during visits to administer medications. (Trial Tr. 391:1-6, 578:19-21.) Moreover, the testimony at trial established that even when crosswatching took place, an officer still had to conduct thirty-minute security checks with backup in the interlock, thus, there would have been an officer within sight and/or hearing distance of a detainee at all times. (Trial Tr. 387:3-13, 409:16-410:8, 536:16-18.)
The other aspect of the weekend lockdowns Plaintiffs focused on was the length of the lockdowns. This Court already ruled that the length of the lockdowns was not punishment and was not excessive in relation to its purpose. (Dkt. 201 at FN 3) There was no evidence presented that established that Plaintiffs suffered physical injuries due to the alleged “excessiveness” of the lockdowns or any alleged risk associated with it. The alleged injuries to Plaintiff Gelso occurred on a Friday, a couple hours after the lockdown started. (Trial Tr. 467:4-
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7.) Koss testified that she suffered her pre-labor pains on a Saturday. (Trial Tr. 298:1-2.) Neither Plaintiff testified that their tier had been searched prior to any of these incidents and that there was no reason for the movement restriction. Moreover, as discussed above, neither Plaintiff provided any tangible evidence of physical or psychological injuries and linked those injuries to the weekend lockdowns, let alone due to the excessiveness of the lockdowns. Thus, Plaintiffs‟ alleged injuries were not caused by the length of the lockdown or any alleged risk associated with it. II. PERMITTING THE TESTIMONY OF CHARLES FASANO WAS IN ERROR.
Charles Fasano was permitted to testify at the trial in violation of Federal Rule of Evidence (Fed. R. Evid.) 701, which prohibits opinion testimony by lay witnesses, and Fed. R. Evid. 403, which prohibits the presentation of evidence for which the prejudicial value outweighs its probative value. Further, Fed. R. Evid. 702 requires expert discovery disclosures to be made prior to testimony; such disclosures were never made in this case. Plaintiffs led the Court to believe that Fasano would be testifying as a lay person who had seen the jail. (Trial Tr. 27-28.) Despite Plaintiffs‟ failure to disclose Mr. Fasano as an expert, the Court permitted him to testify to his extensive experience in the correctional industry, even though his credentials and experience did not apply to the issues in this case. Mr. Fasano‟s testimony include that:
He has worked and been an advisor in the corrections field, and had worked in these roles for Cook County for over twenty years; Based on his work he can conclude that the Sheriff and Cermak Health Services do not keep adequate medical and non-medical detainee records; He visited Division IV during a lockdown weekend, and can describe the events in 2001 and 2003, despite testimony given during his deposition in 2003 that he had not visited the jail during a lock down weekend;
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He spoke to Director Maul, Assistant Executive Director of the Cook County Department of Corrections, who made statements regarding lockdown weekends, which Fasano did not remember during his deposition, but remembered at trial; In his opinion, lockdowns were unnecessarily long and could have been accomplished in a much shorter time frame; In his opinion, lockdowns were inappropriate for detainees suffering from mental health problems. (Trial Tr. 478, 498-529.) Prior to trial, Fasano was merely identified by Plaintiffs as a Fed. R. Evid. 701 fact witness who may have information regarding the layout of Divisions III and IV. (Ex. C, Plaintiffs‟ Disclosures) Further, Fed. R. Civ. P. 26(a) requires updates to prior discovery disclosures when a party learns that the information disclosed is incomplete or incorrect. Throughout Fasano‟s August 22, 2003 deposition, Defendants objected to the absence of an Expert Report pursuant to Fed. R. Civ. P. 26(a)(2), because Fasano testified about lockdowns at the jail. (Ex. D, Dep. of Fasano.) Nevertheless, Plaintiffs never identified Fasano as an expert pursuant to Fed. R. Civ. P. 26(a)(2) or updated their initial, expert, or pretrial discovery production to supplement the disclosures in order to modify Fasano‟s testimony. Defendants‟ Motion in limine No. 6 objected to Fasano‟s testimony as summarized in the pretrial order. (Dkt. 257 at 15-16) Prior to the testimony of the first witness, this Court ruled that if Fasano could testify at all, it would be as a rebuttal witness and only in his lay capacity as a witness who visited the Department of Corrections. (Trial Tr. 27-28.) This Court determined prior to trial that Fasano could testify to the occurrences he saw firsthand, such as broken monitors and lights, but could not testify to his opinions on jail policies. During the Plaintiffs‟ case in chief, however the Court allowed Plaintiffs to call Fasano as their witness and elicit testimony as to his opinions on: (1) recordkeeping at the Sheriff‟s office; (2) recordkeeping of
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medical records at Cermak; (3) his visits to the jail during lockdowns; (4) the appropriate length of time for lockdowns; (5) how mentally challenged detainees should be cared for at the jail; and (6) his conversations with Mr. Maul. (Trial Tr. 510-512.) Therefore, Fasano‟s testimony at trial violated the Court‟s ruling on motion in limine No. 6.
A. Fasano Testified as an Expert, Despite Not Being Designated As Such. Fed. R. Evid. 701 provides that “[t]he difference between an expert witness and a lay witness is that „the former can offer an opinion while the latter is confined to testifying from personal knowledge.‟” United States v. Williams, 81 F.3d 1434, 1442 (7th Cir. 1996). The test to determine whether a witness is an expert or an ordinary fact witness is “whether the witness has specialized knowledge that the lay person cannot be expected to possess and reasonably applies that knowledge to the relevant facts.” Chao v. Guinte Corporation, 442 F.3d 550, 559 (7th Cir. 2006). The breadth of Fasano's testimony extended beyond his first-hand accounts of lockdown weekends, and into his opinion based upon his years of experience with and knowledge of the corrections industry. (Trial Tr. 498-501.) For example, he offered opinions regarding how long a lockdown should take, how detainees with mental health issues should be cared for, and the Sheriff‟s office and Cermak Health Services‟ record keeping. These opinions were all based on his years of special experience in the corrections industry and not as a lay witness. (Trial Tr. 480.) Plaintiff‟s failure to identify Fasano as an expert witness should have precluded him from testifying to these subjects, per Defendants‟ Motion in limine #6 (Ex. E) The failure to disclose Fasano as an expert prejudiced the Defendants, who were unable to prepare for such expert testimony and take countermeasures that are not applicable to fact witnesses, “such as attempting to disqualify the expert testimony on grounds set forth in Daubert v. Merrell Dow
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Pharmeceutical, 509 U.S. 579 (1983), retaining rebuttal experts, and holding additional depositions to retrieve the information not available because of the absence of a report.” Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7th Cir. 2004). Moreover, the error in permitting Fasano‟s testimony was not harmless and would have changed the outcome of the trial.
B. Fasano Testified to New Matters that Had Not Been Previously Disclosed nor Supplemented by Discovery Prior to Trial.
The opinion that the Sheriff‟s office and Cermak do not adequately keep records and that they lose records on a consistent basis was not that of a lay witness, but of Fed. R. Evid. 702‟s definition of an expert. However, in addition to the proffered testimony being improper expert testimony by a lay witness, Fasano‟s “experience,” “opinion” and/or “conclusion” regarding poor record keeping and retrieval at the Department of Corrections and Cermak was never disclosed as testimony to the Defendants in this case in any capacity. (Ex. B, p. 2; Ex. C.; Ex. F; Trial Tr. 494, 496.) In addition to the Defendants being unaware of his new fact and opinion testimony regarding inadequate record keeping by the Sheriff and Cermak Health Services, a non-party, Plaintiff also failed to supplement other material facts regarding Fasano‟s testimony such as: Fasano‟s change of testimony as to whether he visited the jail during a lockdown weekend, (previously Fasano testified at his deposition that he had never been present in Division II or IV when a lockdown occurred, (Ex. D., p. 100; Trial Tr. 520.)) and Fasano‟s remembering what Defendants‟ employee, John Maul, said after previously testifying that he “did not know or remember what Maul had told him.” (Ex. D, p. 104; Trial Tr. 518.) In the pretrial order, at trial, and prior to his taking the stand, Defendants objected to Fasano‟s testimony as undisclosed expert testimony under Fed. R. Civ. P. 701 and 702 and as overly prejudicial under Fed. R. Civ. P. 403 because of Mr. Fasano‟s experience, but also advised that Court that even if considered fact rather than opinion testimony, it was new and had not been
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disclosed as required under Fed. R. Civ. P. 26(e). (Dkt. 257 at 15-16, Trial Tr. at 28, 478-80.) Defendants‟ objections were overruled, and the testimony was heard by the jury. The Court erroneously let Mr. Fasano testify despite Defendants‟ pretrial motions and timely objection at trial. This error also was not harmless and if his testimony had been excluded, it would have changed the outcome of the trial. There was nothing more Defendants could have done to keep out the highly irrelevant and prejudicial testimony by Fasano. III. PERMITTING THE TESTIMONY OF SHEILA VAUGHN WAS IN ERROR.
The Court permitted Sheila Vaughn to testify about prior cases against the Sheriff of Cook County in which she was a witness that resulted in settlement of cases. However, she was permitted to testify that the outcome those settled cases in which she testified against the office of the Cook County Sheriff were “favorable outcomes.” (Trial Tr. 223:2-8.) Thus, Vaughn‟s testimony led the jury to infer that other juries or courts found her testimony credible and that the Sherriff of Cook County had been found liable of some wrongdoing. In fact, the cases she testified in were settled, and were not found in favor of the plaintiffs at trial. (Trial Tr. 211:1419) The Court allowed Vaughan‟s testimony over the objection of the Defendants. (Trial Tr. 223:10-12) Vaughn‟s testimony is not relevant under Fed. R. Evid. 401 and 402. “[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Irrelevant evidence is generally inadmissible. Fed. R. Evid. 402. Fed. R. Evid. 403 states that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. The advisory committee notes following Fed. R. Evid. 403 define unfair prejudice as “an undue tendency to suggest decision on an improper basis.” Fed. R. Evid. 403. Sheila Vaughn‟s testimony should have been barred
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Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 16 of 25 PageID #:7337
because it was irrelevant. If it was relevant, her testimony should be barred because its prejudicial effect outweighed any probative value it proffered.
Defendants were prejudiced when the Court allowed Plaintiffs to examine Sheila Vaughn regarding the outcome of prior cases she had testified or consulted on, absent any evidence provided by the Plaintiffs as to the actual success of, or to Vaughn‟s contribution to, the success of those cases. (Trial Tr. 212:19-21.) The implication that prior cases were “successful” unfairly prejudiced Defendants. Even if the testimony regarding the outcomes of prior cases is permissible under the Federal Rules of Evidence, the jury was not provided with information sufficient to distinguish a favorable verdict at trial with “prevailing party status” during settlement. Allowing Vaughn to testify to her “success” in prior cases at all, let alone insinuate that Vaughn‟s testimony had been a determining factor in successful outcomes in prior cases, unfairly prejudiced Defendants and this error was not harmless.
The Court erred in permitting Sheila Vaughn to testify at all after the Department of Justice Report was deemed inadmissible because that was the material basis of her opinions. Vaughn never testified that she had been to the jail during a lockdown, and, thus, had no experience on which to formulate her opinion that the lockdowns were unreasonably protracted. For an expert to testify as to her opinion “[t]he trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [the relevant] discipline. Kumho Tire Company, LTD. v. Carmichael, 526 U.S. 137, 149 (1999)(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993)). This Court has held that “experts are held to the same standards of intellectual rigor in testimony as in their scholarly work.” Erickson v. Baxter Healthcare, Inc., 131 F. Supp. 2d 995, 1000 (N.D. Ill. 2001) (citing Kumho Tire Co., 526 U.S. at 152). When the DOJ report was deemed inadmissible, Vaughn lost the sole basis of her
16

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 17 of 25 PageID #:7338
testimony regarding weekend lockdowns. The exclusion of the report required Vaughn to base her testimony on two visits to the jail and her experience with Riker‟s Island in New York, a facility unlike Cook County Jail. Vaughn did not visit the jail during a non-lockdown weekend. Without visiting the jail to experience a lockdown weekend and the DOJ report to rely upon, Sheila Vaughn was unable to form an informed opinion about weekend lockdowns at the Cook County Jail. Fed. R. Evid. 702 “specifically contemplates the admission of testimony by experts whose knowledge is based on experience.” Kumho Tire Co., 526 U.S. at 156. Vaughn‟s lack of experience pertaining specifically to the conditions at the jail during a lockdown weekend leave her testimony without sufficient basis for her opinions, thus the Court erred in denying Defendants‟ Motion in limine to Bar Sheila Vaughn‟s testimony. IV. PLAINTIFFS FAILED TO DISCLOSE EVIDENCE REGARDING PLAINTIFF
GELSO ALTHOUGH REQUIRED BY FEDERAL RULE OF CIVIL PRODEDURE 26(e). Plaintiff Gelso filed three lawsuits prior to her current action (two against the Sheriff‟s Office, and one against the police). These suits were not disclosed prior to trial. Instead, moments before Gelso took the stand, Plaintiffs‟ counsel told the Court and Defendants‟ attorneys that he “forgot” that he represented his client in three prior matters, but they were unrelated. (Trial Tr. 411:23-412:2, 412:12-14.) Further, he stated that he did not intend to go into those cases with her on the stand. (Trial Tr. 412:19-22.) Without knowledge of the nature of these prior cases, Defendants were unable to question Gelso or object to testimony regarding her prior actions. Following the conclusion of the trial, Defendants reviewed the three cases that Gelso failed to disclose. One of the cases, Gelso v. Correctional Officer Doe, 08 C 215, actually
17

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 18 of 25 PageID #:7339
alleges another detainee injured Gelso and caused her to lose seven teeth.3 This allegation would be directly contradictory to the testimony she gave on the stand on March 10, 2011, when she told the jury that the injuries she suffered from her cellmate included a permanent bridge becoming detached from one of her teeth. (Trial Tr. 434:15-17, 435:7-9.) This information could have impeached Gelso‟s credibility and discredited her claim of injuries to her mouth. Plaintiffs‟ failure to disclose prevented Defendants from properly impeaching Plaintiff or challenging her assertion that she was harmed as a result of Defendants‟ conduct.
Rule 26 (e)(1) requires that “[a] party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory request for production, or request for admission – must supplement or correct its disclosure in response: . . . if the party learns that in some material respect the disclosure or response is incomplete or correct, and if the additional or corrective information had not otherwise been made known to the other parties during the discovery process or in writing.”
Gelso signed, and Plaintiffs‟ counsel delivered responses to Interrogatories without reference to this prior suit. (Ex. F; Pl. Gelso‟s Answer to Interrogatories) The failure to identify other cases in which Plaintiff was claiming she that other law enforcement personnel injured her jaw and teeth is a material omission. Further, Plaintiffs‟ failure to disclose these material omissions or supplement discovery to include them constitute dishonesty to the tribunal. This material error prejudiced Defendants and affected the outcome of the case. At the trial, the information regarding the other cases would have been directly relevant for impeachment as to Gelso‟s credibility for the real reason why she lost her teeth, and damages attributable to that loss. The error was in no way harmless. (See, e.g., Filippo v. Lee Publications, Inc., 2007 U.S. 3 Gelso v. Correctional Officer Jane Doe, 08 C 215, contains the allegation, “as a direct and proximate result of defendants Jane Doe‟s failure to protect the plaintiff from the actions of the detainees, plaintiff (GELSO)sustained neurological injuries, suffered great pain, and lost seven teeth.” [dkt 1 paragraph 8]
18

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 19 of 25 PageID #:7340
Dist Lexis 68710 (N.D. Ind. September 12, 2007)(Moody, J.) (Plaintiff‟s failure to disclose and evasiveness about prior encounters with police and arrests were directly relevant to her claim. Sanctions against the attorney and the plaintiff were imposed).
V. DEFENDANTS WERE NOT PERMITTED TO CROSS-EXAMINE KOSS CONCERNING HER DEPRESSION. The Court‟s limiting Defendants‟ cross-examination of Plaintiffs on a key issue even
though Plaintiff opened the door on direct examination prejudiced Defendants. “The court shall exercise reasonable control over the mode and order of interrogating witnesses.” Fed. R. Evid. 611(a). “Cross-examination should be limited to the subject matter of the direct examination and matter affecting the credibility of the witness.” Fed. R. Evid. 611(b). “It is established . . . that cross-examination may be limited where the sixth amendment interest is outweighed by the danger of harassing witnesses or unduly prejudicing the jury.” U.S. v. Kizer, 569 F.2d 504, 505 (9th Cir. 1978) quoting Davis v. Alaska, 415 U.S. 308 (1974). The proper extent of cross-examination is left to the discretion of the trial court. Id., citing Fed. R. Evid. 611(a); Skinner v. Cardwell, 564 F.2d 1381, 1388-89 (9th Cir. 1977). “A district judge has wide discretion to impose reasonable limits on cross-examination, and may do so based on concerns about . . . prejudice, confusion of the issues, or questioning that is only marginally relevant.” U.S. v. Jackson, 540 F.3d 578, 591 (7th Cir. 2008). The Court must decide if testimony elicited on cross-examination is outside the scope of the direct-examination. See U.S. v. Hoyos, 3 F.3d 232 (7th Cir. 1993).
Here, despite being barred from doing so via a motion in limine, and over the objection of Defendants, Plaintiff Koss testified on direct examination concerning her depression upon entering the jail. (Trial Tr. 287:3-8.) When Defendants attempted to inquire about her depression on cross-examination, they were barred from doing so via a sustained objection. (Trial Tr.
19

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 20 of 25 PageID #:7341
310:18-21.) No further inquiry was allowed into the reasons behind or nature of Plaintiff‟s depression. Plaintiff Koss, however, testified during her deposition that she was placed on suicide watch due to the nature of her charges.4 (Koss‟ Dep., 28.) She testified at trial, however, that she was depressed due to entering jail. (Trial Tr. 296:3-5.) At trial, Defendants attempted to impeach Koss on this surprising testimony via the introduction of the inconsistent statement from her deposition, but were barred from doing so by the sustained objection of Plaintiffs. (Trial Tr. 310:15-21.) Defendants were prejudiced by the prevention of their ability to cross Koss with her deposition testimony concerning the cause of her depression. The inquiry into Plaintiff Koss‟s depression was highly relevant to Defendants‟ case. Allowing Plaintiff Koss to testify on the matter without cross examination is not a reasonable restriction on Defendants‟ ability to cross-examine witnesses and was prejudicial to Defendants. VI. PLAINTIFFS REPEATEDLY SHIFTED THE BURDEN TO DEFENDANTS AT
TRIAL, WHICH IRREPARABLY MISLED THE JURY. Plaintiffs‟ improper references to Defendants‟ failure to produce evidence exonerating the Sherriff‟s office are grounds for a new trial because these references misled the jury about Plaintiffs‟ burden of proof. Plaintiffs consistently made remarks about Defendants‟ failure to produce evidence to exonerate the Sheriff‟s Office. To sustain a Section 1983 claim, a plaintiff has the burden of proof. Maddox v. Jones, 370 Fed. Appx. 716, 719 (7th Cir 2010) (citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)). A plaintiff must prove that the defendant was deliberately indifferent to a risk of serious harm. Gayton, 593 F.3d at 620. To demonstrate deliberate indifference, Plaintiffs must prove that the Sheriff‟s Office was subjectively aware of a serious risk to their health and either knowingly or
4 Plaintiff Koss was charged with murder, involuntary manslaughter, and concealment of a homicide in the death of her two-month-old child, who was found partially decomposed in a hole near railroad tracks.
20

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 21 of 25 PageID #:7342
recklessly disregarded that risk. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). There was nothing unique about Plaintiffs‟ case that would shift the burden onto Defendants to prove their lack of liability. Therefore, the burden of producing evidence to prove their Section 1983 claim rested entirely on Plaintiffs.
Instead of providing sufficient evidence of Defendants‟ deliberate indifference, Plaintiffs argued that Defendants lacked proof that correctional officers were able to see and hear the detainees during lockdowns. (Trial Tr. 671:1-16; 674:7-12.) Plaintiffs further argued that Defendants did not show logbooks proving that checks were carried out as the policy prescribed. (Trial Tr. 671:1-16.) Defendants timely objected to Plaintiffs‟ repeated attempts to shift the burden at trial; however, these objections were overruled. (Trial Tr. 671:8-9.) As a result of Plaintiffs‟ burden shifting, the jury was misled into believing the Plaintiffs could prevail on their claims if Defendants failed to present evidence that they were not culpable. It is reasonable to conclude that the jury was prejudiced by the repeated references to Defendants‟ need to show proof that the Sheriff‟s office did nothing wrong. This misstatement of the appropriate burden at trial prejudiced Defendants, misled the jury as to the law, and improperly influenced the deliberative process. The Plaintiffs‟ attorney‟s argument regarding that erroneous burden of proof was so prejudicial that this court should have declared a mistrial. VII. THE DAMAGE AWARD WAS EXCESSIVE AND SPECULATIVE.
This Court should award Defendants a new trial on the issue of damages, or in the alternative, reduce the award of damages. Section 1983 does not authorize compensatory damages that are based only on the “abstract value of the constitutional right allegedly violated.” Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986). When a court reviews an award of compensatory damages, it uses a three-part test: (1) whether the award is monstrously
21

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 22 of 25 PageID #:7343
excessive; (2) whether there is no rational connection between the award and the evidence; and (3) whether the award is roughly comparable to awards made in similar cases. Tullis v. Townley Eng’g & Mfg. Co., Inc., 243 F.3d 1058, 1066 (7th Cir. 2001).
Plaintiffs provided no evidence that they required medical attention or incurred medical expenses related to any incidents that occurred during a weekend lockdown. Although Koss testified that she was assaulted by her cellmate during a weekend lockdown, she presented no evidence showing injuries or medical treatment for either physical or psychological injuries. (Trial Tr. 304:2-20.) Gelso similarly asserted that she required dental work because of an incident that occurred during a weekend lockdown (Trial Tr. 434:11-17.); however, Gelso provided no evidence of this injury or the cost of dental treatment. Gelso could easily have provided this information through dental records. In addition, as set forth in Section IV supra, Gelso claimed in a separate action that she lost seven teeth because she was hit by a different inmate in 2006. (Ex. B)
The jury awarded Anne Gelso $48,000 and Helen Koss $95,000. The award is excessive and reflects the passion and prejudice of the jury instead of an impartial assessment of the merits of Plaintiffs‟ case. The jury awarded Plaintiffs significantly more damages than they requested based on no actual evidence – only speculation. Plaintiff Koss asked for $45,000 for emotional injuries and $25,000 for alleged physical injuries. (Trial Tr. 686:16-687:12.) Plaintiff Gelso requested $9,000 for emotional injuries (Trial Tr. 688:8-9.) and $25,000 for physical injuries (Trial Tr. 715:15-17.) Plaintiffs‟ ability to appeal to juror sympathies through the admission of testimony regarding Gelso‟s rape, which allegedly occurred years prior to her incarceration,5 (Trial Tr. 414:20-416:25) and admission of testimony regarding Koss‟s depression (Trial Tr. 5 Defendants requested documents from the West Palm Beach Police Department regarding Plaintiff Gelso‟s rape, and received a reply that the West Palm Beach Police Department does not have any record of the rape of Plaintiff Gelso. (Ex. G)
22

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 23 of 25 PageID #:7344

287:3-9), which Defendants were unable to cross-examine her on prejudiced Defendants. Jurors

simply wished to compensate Plaintiffs after this prejudicial testimony without regard to the law

or evidence of injuries.

The award of damages in this case should result in a new trial, or at least remittitur,

because the award is unsupported by the evidence and is excessive. Additionally, the award

represents the passion and prejudice of the jury resulting from the admission of prejudicial

testimony.

VIII.

THE COURT’S FAILURE TO PERMIT DEFENDANTS’ SPECIAL INTERROGATORIES WAS AN ABUSE OF DISCRETION.
Defendants requested a series of special interrogatories regarding whether the weekend

lockdowns and/or cross-watching was the moving force behind the alleged constitutional

violations and injuries. (Trial Tr. 646:22-647:12, 648:23-649:8.) This Court denied Defendants‟

request at the jury instruction conference. (Trial Tr. 647:13-648:22, 649:9-650:22.) Defendants

also requested a jury instruction that a failure to follow a correctional guideline does not

necessarily equal a constitutional violation. (Trial Tr. 650:24-651:4, 660:17-661:7.) The failure

to give such an instruction, as well as the denial of the special interrogatories, prejudiced

Defendants because it precluded the jury from seeing that the governmental body‟s policies must

be the moving force behind the constitutional violation as required under Monell. Thomas v.

Cook County Sheriff’s Department, 604 F.3d 293, 306 (7th Cir. 2009). The Seventh Circuit in

Thomas noted that in Section 1983 actions, the United States Supreme Court “has been

especially concerned with the broad application of causation principals in a way that would

render municipalities vicariously liable for their officer‟s actions.” Thomas, 604 F.3d at 306

citing Bd. of the County Comm'rs v. Brown, 520 U.S. 397 (1997). That is exactly what happened

in this case and why these special interrogatories and jury instructions were necessary. In other

23

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 24 of 25 PageID #:7345
words, if the special interrogatories were given and the instruction as to the violation of a correctional guideline not being equal to a constitutional violation was given, the outcome of the verdict would have been different. IX. THE COURT ERRED IN DENYING MOTION IN LIMINE NO. 9
This Court erred in denying Defendants‟ motion in limine No. 9 and allowing Plaintiffs to present evidence that did not relate to the alleged harm of the weekend lockdowns, specifically, Plaintiffs‟ use of memoranda from 2004 relating to cross-watching. (Trial Tr. 30:23-35:4.) These memoranda were not relevant because they did not relate to weekend lockdowns or the time Plaintiffs were incarcerated and were filled out well after the weekend lockdowns had ended. As a result these memoranda were not probative under Fed. R. Evid. 403 and the dangers of unfair prejudice outweighed any probative value and prejudiced Defendant. X. THE SHERIFF’S OFFICE DID NOT VIOLATE PLAINTIFFS’ FOURTEENTH
AMENDMENT SUBSTANTIVE DUE PROCESS RIGHTS. For the reasons stated in Defendants‟ Motion for Judgment as a Matter of Law, Section I. supra, the jury‟s verdict here was inconsistent and contrary to the law. Defendants‟ reassert these arguments in support of their motion for a new trial.
CONCLUSION WHEREFORE, Defendants respectfully request this Honorable Court grant their motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(b) because Plaintiffs failed to provide sufficient evidence to support the verdict. In the alternative, Defendants request that this Court grant their motion for a new trial or remittitur pursuant to Federal Rule of Civil Procedure 59 for each of the foregoing reasons and because the cumulative impact of all trial irregularities made the trial unfair to Defendants.
24

Case: 1:03-cv-01768 Document #: 293 Filed: 05/16/11 Page 25 of 25 PageID #:7346 Respectfully submitted, ANITA ALVAREZ State‟s Attorney of Cook County /s/ Patrick S. Smith Patrick S. Smith Deputy Supervisor – Conflicts Counsel 69 W. Washington, 20th floor Chicago, Il 60602 (312) 603-1422
25

 
 Case: 1:03-cv-01768 Document #: 201 Filed: 07/24/08 Page 1 of 4 PageID #:6876
Order Form (01/2005)
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Judge Zagel

Sitting Judge if Other than Assigned Judge

CASE NUMBER

03 C 1768

DATE

July 24, 2008

CASE TITLE

GENISE HART, CARMEN FELICIANO, ANN FRANCIS GELCO, HELEN KOSS, CAPRICE MORALES, and MICHELLE GANDY, individually and on behalf of a class
v. THOMAS DART, SHERIFF OF COOK COUNTY, in his official capacity, and COOK COUNTY

DOCKET ENTRY TEXT:
Defendants’ Motion for Summary Judgment [160] is granted in part and denied in part.

STATEMENT
This case started in 2003. The controversy arose from a now discontinued practice in the two female inmate (and other) Divisions of the Cook County Jail.1 Once a month, the jail is locked down–the inmates are kept inside their cells to enable the correctional officers to search for weapons and contraband. The lockdowns occur on weekends and last about 48 hours, a long time to be confined to a cell. Recent experience has shown that the lockdowns may not have been necessary but courts do not judge restrictive prison procedures by a standard that bars all but necessary ones. What is at issue here is whether one aspect of the Cook County lockdown is improper. The complaint is described and the issue identified in Hart v. Sheahan, 396 F.3d 887 (7th Cir. 2005). The Court of Appeals said this:
The lockdown lasts from Friday afternoon to Sunday afternoon . . . and during that entire time, the inmates are confined to their cells. They are fed, but they are not under the observation, or even within hailing distance, of the guards, who are busy with the searches . . . But the heart of the plaintiffs’ claim, with enough merit to withstand a motion to dismiss, is that the jail is subjecting them to a risk of serious harm by an unreasonably protracted detention of them out of sight and hearing of the guards.
396 F.3d at 893-94.
So there followed discovery and some of the allegations of the complaint failed of proof. The
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Case: 1:03-cv-01768 Document #: 201 Filed: 07/24/08 Page 2 of 4 PageID #:6877 STATEMENT
lockdown procedure was not designed and administered as the plaintiffs had alleged. The operating procedures during lockdown called for correctional officers to check on the status of prisoners every 30 minutes. These checks were supplemented by the thrice daily headcounts that are standard practice everywhere in the jail. Moreover officers either delivered meals or accompanied those who did. Apart from these routine encounters with inmates, there were other contacts that occurred whenever inmates did leave their cells, because confinement during lockdown is not an absolute. Prisoners can leave cells for prearranged visits with outsiders (or unscheduled visits from those who had traveled more than 150 miles to the jail), for visits with attorneys, for certain types of medical or psychological care, or for work. When they returned to the cell they were accompanied by a guard because the cell had to be locked manually by an officer. When the cells were searched in a given tier, the inmates were removed from the cells and moved to the day room or a recreation room.
Under these circumstances the premise of the complaint which began the case is wrong and there is no dispute about this. Based on cases like Butera v. Cottey, 285 F.3d 601 (7th Cir. 2002) it is not a constitutional violation to check on prisoners twice every hour. The original complaint was a proposed class action directed at a wrong perpetrated against all the inmates by virtue of a practice and procedure mandated by the directors of the institution.2 The class certification has been denied and the procedure mandated by directors is not the one described in the complaint. The ground on which the plaintiffs now stand can be characterized as a lesser included claim in the complaint.
The plaintiffs have evidence that the lockdown procedure, whatever its constitutional sufficiency in the abstract, was not executed as required; that is, due to an inadequate number of correctional officers, the 30 minute check was not always made and other safeguards were not routinely applied so that inmates were out of the hearing and sight of officers. There is also evidence that two of the plaintiffs were physically injured in encounters with other inmates during which calls for assistance were made to officers who did not respond until well past 30 minutes had elapsed.3
There is no dispute that searches for contraband serve legitimate purposes in jails. The lockdown is an appropriate way to ensure the effectiveness of such searches even if it is not the only way or the best way.
There is a specific factual dispute over whether the lockdown policy and prescribed practices, sufficient as they may be on paper, were followed on the ground. There is, arguably, a factual dispute of whether the specific incidents complained of were isolated failures of administration or endemic to the lockdowns. There is a dispute of whether the volume and nature of the incidents would justify a conclusion that the Sheriff did know or should have known of the failures and their consequences and, for this reason, acted with deliberate indifference to a known risk. I should note that, while no claim for relief can be made on the sole ground that the lockdown was unreasonably protracted, the plaintiffs are entitled to prove, if they can, that the length of the lockdown increased the dangers to which the jail officials were deliberately indifferent. The longer the lockdown, the greater the chance of occasions in which correctional officers would fail to exercise required oversight of inmates due to other demands on them or other causes.
Little of the plaintiffs’ various cases are easy to prove. These are tort claims requiring proof of more than negligence and each single incident alleged to have occurred suggests negligence at least as much as it suggests intent or deliberate indifference. There are some incidents which, at this stage, I assume occurred as described that do establish that inmates were not within hearing or sight of correctional officers for considerable periods of time. There is testimony by inmates, who were not subject to incidents, that based on what they saw or heard, there were no guards in earshot. This testimony may be attacked on grounds that the
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Case: 1:03-cv-01768 Document #: 201 Filed: 07/24/08 Page 3 of 4 PageID #:6878 STATEMENT
inmate was not in an appropriate location to make that conclusion but this is a matter of disputed fact. So too is the question of whether one of the techniques used to keep inmates in sight, crosswatching, was inherently ineffective. Koss and Gelso, who testify to physical injuries at the hands of other inmates when guards did not respond to cries of help, have claims that are triable. Gandy may have a triable claim as well for the lack of response to her inability to breath after her asthma pump failed.
Morales, Hart and Gandy (in part) do not have cases because they do not have cognizable injuries. They suffered from being locked in cells, felt they were being punished and lost sleep. These claims, for which they would pursue at least nominal damages, are not within the ambit of the theory on which the Court of Appeals held that the case could proceed.
Nothing in the Court of Appeals’ opinion indicated that it was overruling or modifying its previous doctrine that increased risk, real or perceived, can give rise to any claim of damage. The unnecessary presence of risk created or allowed by conduct which evinces deliberate indifference to the existence of that risk is the legal basis for compensating an inmate who suffers some concrete injury beyond feelings of fear and unjust punishment. This limitation on causes of action filed by inmates is similar to the rule which does not allow a pedestrian to sue for damages when missed by a reckless driver who, later, out of sight of the pedestrian, hits and kills someone in a crosswalk. The general preclusion of damages for inmates who feel fear, claustrophobia, loss of self-worth and a sense of unjust punishment is, in my view, a consequence of the fact that simply being in any jail would cause these feelings to occur in very many people. The law does compensate prisoners for psychological torture intentionally inflicted for the purpose of causing psychological pain which cannot be said of the conduct of the officers in this case. See Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003) (Guards conducted strip search of a male prisoner after inviting female guards to witness the event during which ribald comments were made as were explicit sexual gestures).
The motions for summary judgment against Anne Francis Gelco and Helen Koss are denied.
The motions for summary judgment against Genise Hart, Caprice Morales and Carmen Feliciano are granted.
The motion for summary judgment against Michelle Gandy is granted in part and denied in part. Her claim with respect to the failure to provide emergency medical treatment remains in the case.
1. I do not resolve here the issue of whether the act of stopping lockdowns can be admitted as evidence against defendants. The defense claims this is a remedial measure and thus inadmissible. The plaintiffs claim the act is not remedial. The defense says that, even if not remedial, the act is not admissible since lockdowns fall withing a range of permissible approaches and a decision to use a different approach cannot be deemed an admission that the lockdown was wrong or unnecessary. Nor do I consider the opinions of Charles Fasano who may be an expert on or an acute observer of the proper ways to run a jail. He did not come into the case in the manner required by Rule 26 and he is not, as the plaintiffs say, an ordinary fact witness.
2. In my view this case is inappropriate to a class action. A class action might have been appropriate had the formal lockdown procedures been as the complaint described them. But they were not. The plaintiffs now say that the formal procedures were sometimes not followed. I infer that there were weekends where the procedures were followed. I think it would not be useful to have class actions for the separate class for each weekend that proper procedures were
Page 3 of 4

Case: 1:03-cv-01768 Document #: 201 Filed: 07/24/08 Page 4 of 4 PageID #:6879 not executed. I think also that it would be difficult for plaintiffs’ counsel to identify the specific weekends where the procedures failed. 3. Plaintiffs offer other theories of liability but I, in the exercise of my authority under Federal Rule of Civil Procedure 16, had ruled (quite some time ago) that the sole issue to be decided after remand was the issue that the Court of Appeals had identified as the survivable claim in the complaint. I have denied motions to consolidate the broader range of issues raised in other complaints before other judges of this court. I dismissed the original complaint. The Court of Appeals found that a fairly narrow aspect of the complaint should proceed. If other aspects of the lockdown were to be challenged, it was best that such a litigation merited a fresh start.
For these reasons, I do not consider a claim that keeping prisoners in their cells for 48 hours or longer is “punishment” under the line of cases that followed Bell v. Wolfish, 441 U.S. 520 (1979). Nor do I consider whether the lockdown was excessive in relation to its purpose. The argument that the lockdowns created fear for personal safety is beyond the scope of the one theory which the Court of Appeals sustained and, in any event, there is no cause of action for enduring fear in jail (which might reasonably be felt by anyone incarcerated in any multi-inmate institution). Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996). The argument that there was denial of medical care is beyond the limits of the claim properly before me and, in the circumstances here, impossible to sustain by those individual plaintiffs who allege no damages from the failure to provide medication in a non-emergency. See Lucien v. Godinez, 814 F.Supp. 754 (N.D. Ill. 1993).
Page 4 of 4

 
 Case: 1:03-cv-01768 Document #: 210 Filed: 08/14/08 Page 1 of 2 PageID #:6895
Order Form (01/2005)
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Judge Zagel

Sitting Judge if Other than Assigned Judge

03 C 1768

DATE

August 14, 2008

GENISE HART, CARMEN FELICIANO, ANN FRANCIS GELCO, CAPRICE MORALES and MICHELLE GANDY, Individually and on behalf of a class v. THOMAS DART, SHERIFF OF COOK COUNTY, in his official capacity, and
COOK COUNTY

DOCKET ENTRY TEXT:
Plaintiffs’ motion for class certification is denied.

STATEMENT
Plaintiffs filed a Motion for Class Certification in July 2005. Defendants filed a Motion for Summary Judgment in September 2005. In February 2006, discovery was stayed by agreement of the parties. A settlement conference was set for April 19, 2007 and both Plaintiffs’ motion to certify a class and Defendants’ motion for summary judgment were denied as moot. Settlement conferences were held in April and May of 2007, but no agreement was reached. The parties continued fact discovery, and Defendants filed an updated motion for summary judgment, which I granted in part and denied in part on July 24, 2008. Thereafter, I granted Plaintiffs’ motion to file instanter a reply to their motion for class certification.1
Plaintiffs acknowledge that the matter of certification for the class seeking injunctive relief is moot because the Sheriff has ceased the practice of weekend lockdowns. However, Plaintiffs argue that the certification of a class for monetary damages is not moot.
As I noted in my July 24, 2008 order, this case is inappropriate for a class action. Discovery has revealed that formal lockdown procedures were sometimes not followed, but at other times they were. Thus, the original complaint that proposed a class action directed at a wrong perpetrated against all inmates by virtue of a practice and procedure mandated by the directors of the Cook County Jail must fail. The prerequisites for class action are not met for Plaintiffs to proceed with separate classes for each weekend that proper procedures were not executed. For these reasons, and for those stated in my July 24, 2008 order, Plaintiffs’ motion for class certification is denied.
1. Defendants suggest that I not consider the merits of Plaintiffs’ motion to certify a class since I
previously denied it as moot. Plaintiffs could have re-filed the motion after it became clear that a settlement would not be reached. However, because settlement discussions and further discovery did not actually moot Plaintiffs’ motion to certify a class, and because I granted Plaintiffs’ motion to file instanter a reply, I consider here the merits of the motion for certification.
Page 1 of 2

Case: 1:03-cv-01768 Document #: 210 Filed: 08/14/08 Page 2 of 2 PageID #:6896
Page 2 of 2

 
 Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 1 of 13 PageID #:235

;)J!)

United States District Court, Northern District of Illinois

Nam~' of A~s.ii{.!H!'d Jud~t
u1' MugistnHc J,ld~l'

James B. Zagel

SiUi11g Jw;:f~e If Ot11er thu11 Al';slgned .ludgc

CASE NUMBER

03 c 1768

DATE

12/18/2003

CASE TITLE
:YIOTION:

Hart, et a!. vs. Sheahan, et al.
[ln the lollowmg box la) 1mhcate the party l1l111g the TT\otinn, <::.g., platt"ttlfr, defendant, 3rd party plaintiff, and {b) stat~ brieOy tht<: nature nt" the TI'\Otiml being prescnled.J

DOCKF.T ENTRY:

(I)

0

Filed motion off use listing in "Motion'' box abov~. J

(2)

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Brief in supporl of motion due _ _.

(3)

0

Answer brief to motion due____ Reply to answer brief due ___.

(4)

0

Ruling/Hearing on ___ set for _ _ _ at ___.

(5)

[J

Status hearing[held!continued to) [set for/re-set for] on _ _ set for ____ at _ _ _

(6)

0

Pretrial confcrencc[hcld/contimled tollset for/re-set forJon _ _ _ set for _ _ at ____.

(7)

0

Trial[set for/re-set for] mt ____ at _ _ _

(R)

0

[Bench/Jury trial] (Hearing] hddlcuntinued to _ _ at ___.

(9)

0

This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to] 0 FRCP4(tn) 0 Local Rule 41.! 0 FRCP4l(a)(1) 0 FRC:P4l(a)(2).

(I OJ 8

[Other docket entry) ENTER MEMORANDUM OPINION AND ORDER. Defendant's motion

to dismiss is granted. All other pending ntotions are denied as moot.

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Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 2 of 13 PageID #:236

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

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GENTSE HART, CARMEN FELiCIANO,

or c 1 9 zoo:J

ANN FRANCIS GELCO, KELEN KOSS,

CAPRICE MORALES, and MICHELLE

GRANDY, individually aud on behalf of a

class,

No. 03 C 1768

Judge James B. Zagel

Plaintiffs,

v.

MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, in his official capacity,

Defendant.

MEMORANDUM OPINION AND ORDER

Background Plaintiffs Genisc Hart, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Caprice

Morales, and Michelle Grandy are current and former pretrial detainees at the Cook County Jail

("CCDOC") who claim that weekend lockdown searches violate their due process rights. They

are seeking both monetary and injunctive relief. The Plaintiffs allege the following facts. While at the CCDOC, female detainees are housed in two divisions. Each division is

divided into tiers. Inside each tier, there is a common holding area called the day room where the

detainees receive their mca.Js and have access to pay phones, a television, and other detainees.

Each tier has shower stalls adjacent to the day room. The detainees' cells are separated from the day room by solid steel doors with a small opening. During the day, detainees are allowed to

come and go freely between the day roorn, shower stalls, and their cells unless they are under

lockdown conditions. When under a lockdown, inmates must remain in their cells.

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 3 of 13 PageID #:237
Detainees at the CCDOC are subjected to frequent random searches for weapons and other contraband. It takes the correctional officers between twenty and forty minutes to complete these random searches during which time the detainees are on lockdown. The detainees are also subjected to monthly weekend lockdown searches. During the weekend lockdown searches, the detainees are confined to their cells from 1:30 p.m. on Friday afternoon to late Sunday afternoon. It takes the CCDOC officers approximately the same amount of time to search each tier during the random searches and the weekend lockdown searches.
Many ofthe detainees, including plaintiff Koss, have filed formal grievances about the weekend lockdown searches. At the CCDOC, supervisors from the housing division periodically collect written grievances from the grievance box and forward them to a caseworker who classifies them either as active grievances or as requests. A request falls outside the CCDOC's administrative process. It is the practice of the caseworkers to elassify all grievances about the weekend lockdown searches as requests instead of as active grievances.
Koss filed a brief written grievance on December 16,2002 stating "I WOltld like to know what can be done about lockdown weekends. I feel it is unconstitutional and unfair." Koss also requested the "stopping oflockdowns." Koss received no response to her grievance. Under the now existing administrative grievance procedure, detainees may take their grievance to the appeals panel if they do not receive a decision within five bnsiness days. According to Charles Fasano, the Director of the Jolm Howard Association, who serves a grievance process monitor, the appeals board did not exist in 2002.
2

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 4 of 13 PageID #:238
Analysis The Defendant, Michael Sheahan, Sheriff of Cook CoWlty, now moves to dismiss this
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule l2(b)(6) is proper where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief. Conley v. Gibson, 355 U.S. 41,45-46 (1957). Tn reviewing a motion to dismiss, the court must construe all allegations in the complaint in the light most favorable to the plaintiff and accept all well-pled facts and a!Iegations as true. Bontkowski v. First Nat"l Bank, 998 F.2d 459,461 (7th Cir. 1993).
Before I get to the heart of Defendant's arguments, I must deal with two preliminary issues, standing and the proper constitutional basis for the Plaintiffs' claims. The named Plaintiffs arc a mix of current and former pretrial detainees at the CCDOC seeking both injunctive and monetary relief. However, the reliefto which these Plaintiffs are entitled depends on their detainee status. To be entitled to injunctive relief, a plaintiff must show that he is in imminent danger of harm. Robinson l'. Chicago, 868 F.2d 959, 956 (7Lh Cir. 1989)(citing Los Angeles v. Lyons, 461 U.S. 95 (1983)). Only Plaintiffs who are current detainees are in any danger of being subjected to weekend lockdown searches and, therefore, are the only Plaintiffs who have standing to pursue injunctive relief. The former pretrial detainees do not (and probably cannot) allege that it is reasonably likely they will again be arrested, charged, and held as pretrial detainees at the CCDOC. !d. Tt appears from the Complaint that Koss is the only named plaintitT currently detained at the CCDOC. Therefore, she is the only plaintiff who may seck injunctive relief.
3

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 5 of 13 PageID #:239
As for monetary relief, only current pretrial detainees who have suffered constitutional injury are entitled to monetary damages. Los Angeles v. Heller, 475 U.S. 796, 799 (1986). Under the Prisoners Litigation Reform Act ("PLRA"), I must dismiss any claims that "seck monetary relief from a defendant immune from such relief." 42 U.S.C.S. § 1997e(c)(1 ). Thus, the current detainees' right to sue for monetary relief depends on whether they have properly alleged that the Defendant has, through unc\mstitutional practices and/or policies violated, their due process rights. I find that Plaintiffs' claims of punishment create a proper basis for this suit and that monetary damages may be sought by both current and former detainees.
The Plaintiffs' claims should be analyt.ed under the Due Process Clause ofthe Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 536 (1979). Originally, Plaintiffs claimed that weekend lockdown searches violate their Fourth Amendment due process rights but they have subsequently amended their Complaint to allege a violation of Fourteenth Amendment due process.
That being said, I tum to the heart of Defendant's Motion to Dismiss. The Defendant argues that Plaintiffs' claims fail because (I) plaintiffKoss did not exhaust her administrative remedies and is barred from filing suit, and (2) the weekend lockdown searches do not, Llllder any possible standard, violate the Plaintiffs' due process rights.
1. Exhaustion of Administrative Remedies The Defendant argues that Koss is barred by the PLRA from bringing this suit. The PLRA requires prisoners to exhaust all administrative remedies before filing suit.1 42 U.S.C.S. §
1According to the PLRA, the term prisoner includes any person detained in a facility who is accused of violating a criminal law. The PLRA applies to those plaintiffs who were prisoners at the time they filed suit. Kerr v. Puckell, 138 f .3d 321, 323 (7th Cir. 1998). Koss wus the only
4

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 6 of 13 PageID #:240
1997e(a). On December 16, 2002, Koss placed a grievance conceming the weekend lockdown searches in the grievance box but did not receive a response or pursue her grievance further. The Defendant argues that Koss's claims are barred because she did not appeal her initial grievance. ln fact, the Seventh Circuit has held that "to exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F. 3d 1022, 1025 (7th Cir. 2002). Plaintiffs, however, argue that an exception to the requirement of appeal exists for unanswered grievances. After Pozo, the Seventh Circuit found "administrative remedies exhausted when prison officials fail to respond to inmate grievances because those remedies had become "unavailable"." Lewis v. Washingwn, 300 F.3d 829, 833 (7th Cir. 2002)(citation omitted).
ln [(!Wis, the plaintiff filed three grievances; prison officials denied one grievance but made no response to the others. Lewis, 300 U.S. at 833. The Seventh Circuit relied on its decision in Pozo and dismissed claims related to Lewis's unappealed, denied grievance for failure to exhaust administrative remedies. !d. Even in light of Pozo, which the Defendant argues demands dismissal of this case, the Seventh Circuit allowed Lewis to bring claims based on his unanswered grievances." Jd. The court refused to read the PLRA "so narrowly as to...perrnit [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to grievances. !d. (quotation omitted). See Also Goodman v. Carter, No. 00-948, 2001 U.S. Dist. LEXIS 9213, at *10 (N.D. Tll., June 29, 2001); Whitmore v. Officer Hurley, No. 00-7879,2002 U.S. Dist. LEXIS 16352, at *14 (N.D. Tll., Aug. 29, 2002).
plaintiff detained when the suit was filed and the only plaintiff to whom the PLRA applies. 5

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 7 of 13 PageID #:241
I find that the Seventh Circuit's holding, in Lewis, supports my decision in Whitmore, a case that addressed issues almost identical to the ones here. Like Koss, Whitmore filed a grievance with the CCDOC, received no response, and failed to appeal. Whitmore No. 00-7879, 2002 U.S. Dist. LEXIS 16352, at* II. In that case, I found Whitmore need not appeal an unanswered grievance to sufficiently exhaust his administrative remedies. !d. Similarly, I find that Koss has exhausted her administrative remedies and, therefore, her claims arc not barred by thePLRA.'
The Defendant argues further that Koss's complaint should be dismissed because her "skeletal" grievance was insufficient to place jail officials on notice of her claims. Koss submitted a grievance stating "I would like to know what can be done about lockdown weekends. I feel it is unconstitutional and unfair." Koss also requested the "stopping oflockdowns." In the absence of any regulation issued by the state, the correctional system, or the individual institution prescribing the contents of a grievance, the grievance
suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice-pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming. Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). I find Koss has satisfied the standard set out in Strong. Koss stated her constitutional rights were violated by the weekend loekdown searches and asked that they be stopped. Her grievance
'Plaintiff also argues that an appeal was unavailable to Koss because the Grievance Appeal Board did not exist when her claim was filed in 2002. lftrue, this is also grounds tbr finding that Koss did exhaust all available administrative remedies.
6

........___________
Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 8 of 13 PageID #:242
should. have put the CCDOC officials on notice of a possible constitutional objection to weekend. lockdown searches.
Plaintiffs also argue that the PLRA docs not apply because detainees did not have access to the grievance process. According to the Plaintiffs, caseworkers reclassify grievances concerning weekend lockdown searches as requests taking them out of the administrative process. Plaintiffs allege that this practice makes administrative review unavailable for grievances concerning the weekend lockdown searches. Ultimately, I find this argument unpersuasive. It is essentially a futility argument, an argument explicitly rejected by the 7th Circuit. There exists at \he CCDOC a process by which detainees may make formal grievance about CCDOC policies. A detainee may not bypass this administrative process just because he
believes it is futile. Perez v. Wisconsin DOC 182 FJd 532,534-36 (7th Cir. 1999); See also
Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 2002)(The potential effectiveness of an administrative response bears no relationship to the statutory requirement that prisoners first attempt to obtain relief through administrative procedures.).
2. Violation of Fourteenth Amendment Due Process Much of Defendant's motion focuses on establishing the proper standard of review under the Fourteenth Amendment. It is widely understood that due process prohibits the goverruncnl from punishing pretrial detainees. Bell, 44 I U.S. at 531; Tesch v. County ofGreen Lake, !57 F.3d. 465, 473 (7th Cir. I998). Tn the Seventh Circuit, two lines of detainee due process cases have developed. The first line applies to constitutional challenges based on general practices, rules, and restrictions and the second line applies to constitutional challenges based on denial of basic human necessities. Tesch v. County ofGreen Lake, 157 F.3d at 474.
7

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 9 of 13 PageID #:243
For cases that challenge general practices, rules, and restrictions, the Seventh Circuit has
applied the Bell standard. In Bell, pretrial detainees challenged the prison's policy of housing
two inmates in each cell. Bell, 441 U.S. at 530. The Court developed the following standard:
A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility offtcials, that determination generally will turn on "whether an alternative purpose to which [\he restriction) may rationally be connected is assignable for il, and whether it appears excessive in relation to the alternative purpose assigned [to it] ....Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not,
without more, amount to punishment. Conversely, if a restriction or condition is
not reasonably related to a legitimate goal- if it is arbitrary or purposeless-- a court permissibly may infer that the purpose of the govermnental action is punishment.
ld. at 538-539.
In cases dealing with deprivation of basic human necessities, the Seventh Circuit has
required plaintiffs to establish that officials acted in an intentional or criminally reckless manner,
which amounted to deliberate indifference. Tesch, 157 F.3d at 474. This deliberate indifference
standard was previously applied to a due process challenge of lockdowns at the CCDOC.
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996). In Antonelli. the Seventh Circuit found
CCDOC officials did not act with deliberate indifference and that periodic lockdowns did not
violate due process.' !d. at 1430. Defendant urges me to apply Antonelli's ruling here and find
the weekend lockdown searches also do not violate due process.
3Defendant argues there is no constitutional basis for Plaintiffs' claims that because of the weekend lockdown searches they lacked use of showers, access to medical care, ability to exercise, use of phones, and freedom of movement outside their cells. However, Plaintiffs are not claiming that these resulting conditions are themselves due process violations. They are claiming that the overall policy amounts to punishment, and I address their claims on those grounds.
8

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 10 of 13 PageID #:244
However, the Plaintiffs are different from Antonelli in that they do not argue weekend lockdown searches themselves violate due process. They argue instead that the general practice /policy of having weekend lockdown searches amounts to punishment and that punishment violates due process. Since the Plaintiffs allege that the general practice of weekend lockdown searches amounts to punishment, I find that the Bell standard applies4•
Because the Plaintiffs have not alleged or shown any evidence that CCDOC officials expressed an intent to punish, this inquiry turns on whether there is a legitimate penological basis for weekend loekdown searches and whether they are excessive in light of that basis. Bell, 441 U.S. at 530; Tesch, 157 F.3d at 474. Before continuing, I must also note that Bell strongly admonishes courts against setting prison policies. Specifically, the Court has stated:
problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment arc needed to preserve internal order and discipline and to maintain institutional security. Bell, 441 U.S. at 547; See Also Godinez v. Lane, 733 F.2d 1250, 1261 (7th Cir. 1984).
The first consideration of the Bell standard is wheth.er there is a legitimate penological
basis for performing weekend lockdown searches. Defendant and Plaintifts seem to agree that the purpose of these searches is to find weapons and other contraband. The CCDOC oflicials have a legitimate interest in ensuring safety and order in the CCDOC. Bell, 441 U.S. at 540. Since the safety of both detainees and CCDOC officers is threatened by detainees who possess
4Defendant also argues that the "atypical hardship" standard established in 17wilman v. Leean, 282 F.3d 478,482 (7th Cir. 2002) should apply. l disagree. Theilman dealt with a state law that created a due process right. We are dealing with no such law here. Additionally, the plaintiff in Theilman was a person who had been involuntarily committed, not a pretrial detainee.
9

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 11 of 13 PageID #:245
weapons and other contraband, I find that weekend lockdown searches serve a legitimate purpose completely unrelated to punishment.
Plaintiffs' argument seems to rest on the Bell standard's second inquiry -whether the
restri.ction is excessive in light of its purpose. During the weekend lockdown searches, detainees are confined to their cells from Friday afternoon until Sunday ail.cmoon. Most cells contain three detainees and are shut off from the day room by a metal door with only a small window. While confined to their cells, detainees lack access to showers and telephones. Plaintiffs also claim their safety is endangered because they cannot be properly supervised by the guards and because they lack immediate access to medical care. According to the Plaintiffs, the conditions imposed by the weekend lockdown searches are worse than those in solitary confinement.
The Plaintiffs argue that these excessively severe conditions are not reasonable in light of the weekend lockdown searches' purpose of discovering and confiscating weapons and other contraband. Plaintifis claim that the weekend lockdown searches could be completed in roughly 45 minutes, the time it takes for prison officials to conduct random tier searches making the weekend confinement unnecessary.
Underlying this case is the inference that the weekend lockdown searches are more onerous than weekday searches because it is less costly to do weekend searches this way. It may be that there arc fewer correctional oflicers available on weekends or that the weekend searches simply take a greater number ofresources.5 The annals of prisoner litigation are filled with cases
5The facts of the matter arc unknown at a motion to dismiss. Wcekend staffing at correctional institutions varies widely. Basic human necessities arc the same every day of the week but the need for and availability of other services vari.es widely. Jails customarily have to get inmates to and from court on weekdays and penitentiaries do not. Jails usually offer a limited menu of rehabilitative programs, penitentiaries often offer more of them. Non-essential services also vary widely on weekends.
10

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 12 of 13 PageID #:246
where prisoners have asked the court to order improvements in their living conditions. Often these requests are quite reasonable ranging from better, healthier food to better telephone services. Leaving aside conditions which are essential to maintenance of life and health, courts allow very wide discretion to correctional administrators.
In simple terms, the relevant question here is whether it is pennissible, absent intent to punish, to keep prisoners from telephones, television, showers and movement outside the cells for forty-eight hours even ifthc correctional purposes of the procedure• could be achieved without such a lengthy denial of access. The m1swer to the question is implicit in the vast majority of decided cases in which prisoners have asserted that prison practices could be improved if the government were willing and able to spend more. Such cases include Bell v. Wolfish, the cases before it, and after it.
The conditions created by th.e weekend Jockdown searches may be extremely unpleasant,
but that does not necessarily make them punishment. Bell, 441 U.S. at 537. Plaintiffs' argument
that the searches could be performed faster and that detainees could then be immediately released from their cells boils down to an efficiency argument-the CCDOC could do the searches in a better and less restrictive manner. This is exactly the kind of managerial argument that both the Supreme Court and the Seventh Circuit have cautioned against.
Less restrictive arguments are too powerful: a prison always can do something, at
some cost, to make prisons more habitable, but if courts assess and compare these costs and benefits then judges rather than wardens are the real prison administrators. Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995).
'There is no dispute here that the searches of cells and inmates for weapons and contraband is a legitimate purpose.
11

Case: 1:03-cv-01768 Document #: 35 Filed: 12/18/03 Page 13 of 13 PageID #:247
The CCDOC's administrators and officials argue that both random searches and weekend lockdown searches are necessary to decrease the risks posed by weapons and contraband. Since I do not wish to either second guess their judgment or try to tell them the best way to operate a prison, I find that, in light of the need to ensure security at the CCDOC, weekend searches are neither unreasonable nor excessive. The CCDOC's policy of conducting
weekend lockdown searches is permissible under the Bell standard and docs not violate the
Plaintiffs' due process rights.
For these reasons, the Defendant's Motion to Dismiss is GRANTED.
ENTER:

DATE: (~ (\k.b 2 C\')1

. Zagel "='-""~ States Distri

12

 
 Case: 1:03-cv-01768 Document #: 338 Filed: 04/13/12 Page 1 of 1 PageID #:8437 Case: 11-3628 Document: 00711741681 Filed: 04/13/2012 Pages: 1

UNITEDȱSTATESȱCOURTȱOFȱAPPEALSȱFORȱTHEȱSEVENTHȱCIRCUIT

EverettȱMcKinleyȱDirksenȱUnitedȱStatesȱCourthouse ȱRoomȱ2722ȱȬȱ219ȱS.ȱDearbornȱStreet ȱChicago,ȱIllinoisȱ60604

OfficeȱofȱtheȱClerk Phone:ȱ(312)ȱ435Ȭ5850 www.ca7.uscourts.gov

Aprilȱ13,ȱ2012

ANNȱFRANCISȱGELSOȱetȱal., PlaintiffsȱȬȱAppellees/CrossȱȬȱAppellants

Nos.:ȱ11Ȭ3628ȱ&ȱ11Ȭ3677 v.

THOMASȱJ.ȱDART,ȱSheriffȱofȱCookȱCountyȱetȱal.,ȱ DefendantsȱȬȱAppellants/CrossȱȬȱAppellees
ȱOriginatingȱCaseȱInformation:
DistrictȱCourtȱNo:ȱ1:03ȬcvȬ01768 NorthernȱDistrictȱofȱIllinois,ȱEasternȱDivision DistrictȱJudgeȱJamesȱB.ȱZagel

UponȱconsiderationȱofȱtheȱJOINTȱMOTIONȱFORȱVOLUNTARYȱDISMISSAL,ȱfiled onȱAprilȱ13,ȱ2012,ȱbyȱcounselȱforȱtheȱparties,

ITȱISȱORDEREDȱthatȱthisȱcaseȱisȱDISMISSED,ȱpursuantȱtoȱFederalȱRuleȱof AppellateȱProcedureȱ42(b).
ȱ

formȱname:ȱc7_FinalOrderWMandate(formȱID:ȱ137)

 
 Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 1 of 25
ASHMAN,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:03−cv−01768

Davis, et al v. Sheahan, et al Assigned to: Honorable James B. Zagel Demand: $50,000 Case in other court: 11−03628
11−03677 Cause: 42:1983 Civil Rights Act Plaintiff Antoinatte Davis TERMINATED: 04/14/2003
Plaintiff Carmen Feliciano TERMINATED: 07/24/2008
Plaintiff Teresa Quintello TERMINATED: 04/14/2003

Date Filed: 03/11/2003 Date Terminated: 03/11/2011 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Thomas Gerard Morrissey Thomas G. Morrissey 10249 South Western Avenue Chicago, IL 60643 (773) 233−7900 Email: tgmlaw@ameritech.net LEAD ATTORNEY
Robert Hugh Farley , Jr. Robert H. Farley, Jr., Ltd. 1155 South Washington Naperville, IL 60540 (630) 369−0103 Fax: (630) 369−0195 Email: farleylaw@aol.com
Stacey L. Scanlon U.S. Department of Labor, Office of the Solicitor 230 S. Dearborn St. Room 844 Chicago, IL 60604 312−353−6990 Fax: 312−353−5698 Email: scanlon.stacey.l@dol.gov TERMINATED: 05/04/2011
represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Hugh Farley , Jr. (See above for address)
Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011
represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY
Robert Hugh Farley , Jr. (See above for address)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 2 of 25

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

Plaintiff Ann Francis Gelco

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Hugh Farley , Jr. (See above for address)

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

Plaintiff Helen Koss

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Hugh Farley , Jr. (See above for address)

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

Plaintiff
Flora Stewart TERMINATED: 04/14/2003

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY

Robert Hugh Farley , Jr. (See above for address)

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

Plaintiff
Elena Meitzler individually and on behalf of a class TERMINATED: 04/14/2003

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY

Robert Hugh Farley , Jr. (See above for address)

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

Plaintiff
Genise Hart TERMINATED: 07/24/2008

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacey L. Scanlon (See above for address)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 3 of 25

TERMINATED: 05/04/2011

Plaintiff
Caprice Morales TERMINATED: 07/24/2008

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

Plaintiff
Michelle Gandy individual and on behalf of a class TERMINATED: 03/08/2011

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacey L. Scanlon (See above for address) TERMINATED: 05/04/2011

V. Defendant Michael Sheahan Sheriff of Cook County in his official capacity TERMINATED: 07/13/2007 as head of Sheriff of Cook County
Defendant County of Cook

represented by Steven M. Puiszis Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 Email: spuiszis@hinshawlaw.com TERMINATED: 09/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bernard E.J. Quinn Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 Email: jquinn@hinshawlaw.com TERMINATED: 09/29/2010 ATTORNEY TO BE NOTICED
represented by Patrick T. Driscoll , Jr. Cook County State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−6461 Email: pdrisco@cookcountygov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Stephen Smith Cook County States Attorney's Office Daley Ctr. 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−3362

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 4 of 25

Email: patrick.smith@cookcountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bernard E.J. Quinn (See above for address) TERMINATED: 09/29/2010

Kevin William Frey Cook County State's Attorney's Office (69W) 69 W. Washington Suite 3110 Chicago, IL 60602 312 603 1440 Email: kevin.frey@cookcountyil.gov ATTORNEY TO BE NOTICED

Louis R. Hegeman Cook County State's Attorney's Office 500 Richard J. Daley Center 50 West Washington Street Chicago, IL 60602 (312) 603−6124 Email: lhegema@cookcountygov.com ATTORNEY TO BE NOTICED

Maureen O'Donoghue Hannon Cook County State's Attorney's Office (69W) 69 W. Washington Suite 3110 Chicago, IL 60602 (312) 603−1424 Email: maureen.hannon@cookcountyil.gov ATTORNEY TO BE NOTICED

Defendant Thomas Dart

represented by Steven M. Puiszis (See above for address) TERMINATED: 09/29/2010 LEAD ATTORNEY

Bernard E.J. Quinn (See above for address) TERMINATED: 09/29/2010

Kevin William Frey (See above for address) ATTORNEY TO BE NOTICED

Maureen O'Donoghue Hannon (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/11/2003

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of Thomas Gerard Morrissey, Robert Hugh Farley Jr. as attorney(s) for plaintiffs (One original and one copy summons(es) issued.) (Documents: 1−1 through 1−3) (hp) (Entered: 03/13/2003)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 5 of 25

03/11/2003 03/12/2003 03/12/2003 03/13/2003 03/13/2003
03/13/2003
03/17/2003 04/01/2003 04/07/2003 04/14/2003
04/15/2003
04/22/2003 05/08/2003 05/08/2003 05/08/2003 05/13/2003
05/29/2003 06/03/2003 06/03/2003

RECEIPT regarding payment of filing fee paid; on 3/11/03 in the amount of $150.00, receipt #10318454. (hp) (Entered: 03/13/2003)
4 MOTION by plaintiff to reassign case ; Notice. (cem) (Entered: 03/17/2003)
5 MOTION by plaintiffs for temporary restraining order ; Memorandum in support (Attachments); Notice. (cem) (Entered: 03/17/2003)
2 NOTICE by plaintiffs of filing regarding plaintiffs' verification of complaint. (cem) (Entered: 03/14/2003)
3 REASSIGNMENT ORDER of 3/13/03 This case is reassigned to the Honorable James B. Zagel from Blanche M. Manning in accordancw with internal operating procedure 13 F1. (For further details see order). Mailed notice (cem) (Entered: 03/14/2003)
6 MINUTE ORDER of 3/13/03 by Hon. Blanche M. Manning : Plaintiffs' motion to reassign case is granted [4−1]. Plaintiffs' motion to writ in the plaintiffs for TRO hearing, and for TRO are reassigned to a judge by lot. Mailed notice (cem) (Entered: 03/17/2003)
SCHEDULE set on 3/17/03 by Hon. James B. Zagel : Settlement conference set for 4:30 4/1/03 . In chambers notice (drw) (Entered: 03/27/2003)
SCHEDULE set on 4/1/03 by Hon. James B. Zagel : Settlement conference set for 4:30 4/22/03 . Mailed notice (drw) (Entered: 04/04/2003)
8 MOTION by defendant Michael Sheahan to authorize release of mental health records (Attachment); Notice. (cem) (Entered: 04/16/2003)
7 AMENDED COMPLAINT [1−1] by plaintiffs Carmen Feliciano, Ann Francis Gelco and Helen Koss terminating plaintiffs Elena Meitzler, Flora Stewart, Teresa Quintello and Antoinatte Davis; adding Genise Hart, Caprice Morales, Michelle Gandy; Notice. (cem) (Entered: 04/15/2003)
9 MINUTE ORDER of 4/15/03 by Hon. James B. Zagel : Defendant's motion to authorize release of mental health records of defendants Antoinatte Davis and Carmen Feliciano and issuance of necessary subpoenas to obtain those records is granted [8−1]. Mailed notice (cem) (Entered: 04/16/2003)
SCHEDULE set on 4/22/03 by Hon. James B. Zagel : Settlement conference held. No notice (drw) (Entered: 04/29/2003)
10 MOTION by defendant Michael Sheahan for leave to file motion to dismiss and oversized memorandum of law ; Notice of motion (eav) (Entered: 05/22/2003)
11 MOTION by defendant Michael Sheahan to dismiss complaint (Attachments) (eav) (Entered: 05/22/2003)
12 MEMORANDUM by defendant Michael Sheahan of law in support of motion to dismiss amended complaint [11−1] (eav) (Entered: 05/22/2003)
13 MINUTE ORDER of 5/13/03 by Hon. James B. Zagel : Defendant Sheahan's motion to dismiss. Answer brief to motion due 6/3/03. [11−1] Reply to answer brief due 6/17/03. Status hearing set for 7/15/03 at 10:00 a.m. Motion for leave to file motion to dismiss and oversized memorandum of law is granted. [10−1] Mailed notice (eav) (Entered: 05/22/2003)
14 MOTION by plaintiffs to file a second amended complaint (Attachment); Notice. (cem) (Entered: 06/04/2003)
15 OBJECTION by defendant to motion for leave to amend [14−1] (Attachments). (cem) (Entered: 06/04/2003)
16 MINUTE ORDER of 6/3/03 by Hon. James B. Zagel : Answer brief to motion to file second amended complaint [14−1] due 6/3/03. Reply to answer brief due 6/10/03. Status hearing set for 6/11/03 at 4:00 p.m. Mailed notice (cem) (Entered: 06/04/2003)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 6 of 25

06/10/2003 06/11/2003 06/19/2003
06/20/2003 06/20/2003 06/23/2003 06/23/2003 06/24/2003 06/26/2003
06/27/2003
06/27/2003 07/01/2003
07/18/2003 09/08/2003 09/09/2003 09/11/2003
09/11/2003
09/12/2003 10/02/2003 10/02/2003

17 RESPONSE by plaintiffs to defendants' objection for leave to amend [15−1] (Attachments); Notice. (cem) (Entered: 06/11/2003)
SCHEDULE set on 6/11/03 by Hon. James B. Zagel : Status hearing stricken. No notice (drw) (Entered: 06/11/2003)
19 MOTION by plaintiffs to compel the defendant to produce certain employees for depositions and to respond to plaintiffs' production request ; Notice. (cem) (Entered: 07/07/2003)
20 MOTION by defendant for leave to file motion to dismiss and oversized memorandum of law ; Notice. (cem) (Entered: 07/07/2003)
21 REPLY by defendant in support of objection to for leave to amend [15−1]. (cem) (Entered: 07/07/2003)
18 SUPPLEMENTAL EXHIBITS by plaintiffs to motion to compel (Attachments); Notice. (cem) (Entered: 06/24/2003)
22 MOTION by defendant to compel answers to outstanding written discovery (Attachments); Notice. (cem) (Entered: 07/07/2003)
SCHEDULE set on 6/24/03 by Hon. James B. Zagel : Status hearing set to 9:30 6/27/03 . No notice (drw) (Entered: 06/27/2003)
23 MINUTE ORDER of 6/26/03 by Hon. James B. Zagel : Defendants motion for leave to file reply brief in support of objection to plaintiff's motion for leave to amend is granted [20−1]. No notice (cem) (Entered: 07/07/2003)
24 MINUTE ORDER of 6/27/03 by Hon. James B. Zagel : Motion to compel [19−1] is denied for the reasons stated in open court. No notice (cem) (Entered: 07/07/2003)
SCHEDULE set on 6/27/03 by Hon. James B. Zagel : Status hearing held and continued to 9:30 7/18/03 . No notice (drw) (Entered: 07/17/2003)
25 MINUTE ORDER of 7/1/03 by Hon. James B. Zagel : Defendant's motion to compel answer to outstanding written discovery is denied without prejudice [22−1]. No notice (cem) (Entered: 07/07/2003)
SCHEDULE set on 7/18/03 by Hon. James B. Zagel : Status hearing held. No notice (drw) (Entered: 07/18/2003)
26 MOTION by plaintiffs to join the County of Cook as a necessary party (Attachment); Notice. (cem) (Entered: 09/15/2003)
27 MOTION by plaintiffs for class certification ; Memorandum in support; Notice. (cem) (Entered: 09/15/2003)
28 MINUTE ORDER of 9/11/03 by Hon. James B. Zagel : Plaintiff's motion to join the County of Cook as a necessary party to the complaint as a defendant is granted [26−1]. No notice (cem) (Entered: 09/15/2003)
29 MINUTE ORDER of 9/11/03 by Hon. James B. Zagel : Status hearing set for to 11/13/03 at 10:00 a.m. Answer brief to plaintiff's motion for class certification [27−1] due 10/2/03. Reply to answer brief due 10/16/03. Answer brief to motion to dismiss [11−1] due 10/2/03. Reply to answer brief due 10/16/03. Mailed notice (cem) (Entered: 09/15/2003)
30 ATTORNEY APPEARANCE for defendant County of Cook by Patrick T. Driscoll Jr., Louis R. Hegeman. (cem) (Entered: 09/15/2003)
31 RESPONSE by plaintiffs to defendant's motion to dismiss [11−1]. (cem) (Entered: 10/03/2003)
32 MOTION by defendant Michael Sheahan for enlargement of time to file response in opposition to petition for class certification ; Notice. (cem) (Entered: 10/17/2003)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 7 of 25

10/02/2003 10/07/2003
11/06/2003 12/03/2003 12/18/2003
12/18/2003 01/07/2004 01/07/2004 01/07/2004 01/08/2004 01/13/2004
01/27/2004 01/28/2004 02/10/2004
02/13/2004 02/23/2004
02/23/2004

33 MOTION by plaintiffs to compel the defendant to produce certain employees for depositions and to respond to plaintiffs' production request ; Notice. (cem) (Entered: 10/17/2003)
34 MINUTE ORDER of 10/7/03 by Hon. James B. Zagel : Defendant's motion for enlargement of time to file defendant's response in opposition to petition for class certification until 10/13/03 is granted [32−1]. No notice (cem) (Entered: 10/17/2003)
SCHEDULE set on 11/6/03 by Hon. James B. Zagel : Status hearing reset to 10:00 12/3/03 from 11/13/03. Mailed notice (drw) (Entered: 11/06/2003)
SCHEDULE set on 12/3/03 by Hon. James B. Zagel : Status hearing held and continued to 10:00 1/8/04 . No notice (drw) (Entered: 12/03/2003)
35 MINUTE ORDER of 12/18/03 by Hon. James B. Zagel : Defendant's motion to dismiss complaint is granted [11−1]. All other pending motions are denied as moot. Entered Memorandum Opinion and Order. Terminating case. Mailed notice (cem) (Entered: 12/19/2003)
36 ENTERED JUDGMENT (cem) (Entered: 12/19/2003)
37 MOTION by plaintiffs to clarify minute order of 12/18/03 ; Notice. (cem) (Entered: 01/14/2004)
38 MOTION by plaintiffs to file a third amended complaint (Attachment); Notice. (cem) (Entered: 01/14/2004)
39 MOTION by plaintiffs to alter or amend the judgment ; Notice. (cem) (Entered: 01/14/2004)
40 MOTION by plaintiffs for a pretrial conference ; Notice. (cem) (Entered: 01/14/2004)
41 MINUTE ORDER of 1/13/04 by Hon. James B. Zagel : Defendants consolidated answer brief to the motion to alter or amend the judgment and the motion to file third amended complaint due by 1/27/04. No reply brief is ordered. Plaintiff's motion for a pretrial conference [40−1] and the motion to clarify [37−1] are entered and continued until further order of court. Status hearing is set for 2/10/04 at 10:00 a.m. Mailed notice (cem) (Entered: 01/14/2004)
42 COMBINED RESPONSE by defendant Michael Sheahan to plaintiffs' Rule 59(E) motion to alter or amend [39−1] and motion to file a third amended complaint [38−1]; Notice. (cem) (Entered: 01/29/2004)
43 MINUTE ORDER of 1/28/04 by Hon. James B. Zagel : Motion to alter or amend the judgment is denied [39−1]. Mailed notice (cem) (Entered: 01/29/2004)
44 MINUTE ORDER of 2/10/04 by Hon. James B. Zagel : Status hearing held. Motion for pretrial conference [40−1] is denied as moot. Motion for leave to file third amended complaint [38−1] is denied as moot. Enter order of dismissal in favor of defendants and against plaintiffs. Mailed notice (cem) (Entered: 02/17/2004)
45 ENTERED JUDGMENT: It is hereby ordered and adjudged that this case is dismissed pursuant to FRCvP 12(b)(6) on the defendants motion. Plaintiffs take nothing from defendants. (cem) Modified on 02/17/2004 (Entered: 02/17/2004)
46 NOTICE OF APPEAL by plaintiff Carmen Feliciano, plaintiff Ann Francis Gelco, plaintiff Helen Koss, plaintiff Genise Hart, plaintiff Caprice Morales, plaintiff Michelle Gandy from motion minute order [43−1], from judgment entered [36−1], from Scheduling order Entered Memorandum Opinion and Order [35−1], from Scheduling order Terminating case [35−2], from motion minute order [35−3] ( Fee Paid ) (cdh) (Entered: 02/24/2004)
47 DOCKETING STATEMENT by plaintiff Carmen Feliciano, plaintiff Ann Francis Gelco, plaintiff Helen Koss, plaintiff Genise Hart, plaintiff Caprice Morales, plaintiff Michelle Gandy regarding appeal [46−1]. (cdh) (Entered: 02/24/2004)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 8 of 25

02/24/2004 02/26/2004 03/02/2004 03/18/2004 05/04/2004 05/04/2004 05/05/2004
09/28/2004 02/23/2005 02/23/2005
02/23/2005 03/08/2005 03/08/2005
03/09/2005 03/09/2005 03/15/2005 03/22/2005
04/29/2005 04/29/2005

TRANSMITTED to the 7th Circuit the short record on appeal [46−1]. Mailed notice to all counsel. (cdh) (Entered: 02/24/2004)
48 ACKNOWLEDGEMENT of receipt of short record on appeal [46−1] USCA 04−1443. (cem) (Entered: 03/01/2004)
49 SEVENTH CIRCUIT transcript information sheet by plaintiffs. (cem) (Entered: 03/03/2004)
TRANSMITTED to the 7th Circuit the long record on appeal no. 04−1443 consisting of one volume of pleadings on appeal [46−1] Mailed notice to all counsel. (mak) (Entered: 03/18/2004)
50 SEVENTH CIRCUIT transcript information sheet by plaintiffs Carmen Feliciano, Ann Francis Gelco, Helen Koss. (cem) (Entered: 05/04/2004)
51 TRANSCRIPT of proceedings for the following date(s):Held on 6/3/03, 9/11/03, 10/7/03 &12/3/03 appeal [46−1] before Honorable James B. Zagel. (51−1 through 51−4) (cem) (Entered: 05/04/2004)
TRANSMITTED to the 7th Circuit supplement to appeal no. 04−1443 consisting of: TRANSCRIPT of proceedings for the following date(s):Held on 6/3/03, 9/11/03, 10/7/03 &12/3/03 appeal [46−1] before Honorable James B. Zagel. (51−1 through 51−4) Mailed notice to all counsel. (cem) (Entered: 05/05/2004)
52 MINUTE ORDER of 9/28/04 by Hon. James B. Zagel : Plaintiff's motion to clarify [37−1] is denied as moot. No notice. (rbf) (Entered: 09/29/2004)
53 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 04−1443 consisting of one (1) volume of pleadings and four (4) volumes of transcripts. (jmp, ) (Entered: 03/03/2005)
54 MANDATE of USCA dated 2/1/2005 regarding notice of appeal, 46 ; USCA No. 04−1443 The judgment of the District Court is reversed, with costs, and the case is remanded, in accordance with the decision of this court entered on this date.(jmp, ) (Entered: 03/03/2005)
55 OPINION from the USCA for the 7th Circuit; Argued 11/30/2004; Decided 2/1/2005 in USCA case no. 04−1443. (jmp, ) Modified on 9/25/2006 (emd, ). (Entered: 03/03/2005)
57 MOTION by Defendants County of Cook, Michael Sheahan for a status hearing (gma, ) (Entered: 03/08/2005)
58 NOTICE of Motion by County of Cook, Michael Sheahan for presentment of ? MOTION by Defendants County of Cook, Michael Sheahan for a status hearing 57 before Honorable James B. Zagel on 3/15/2005 at 10:15 AM. (gma, ) (Entered: 03/08/2005)
59 MOTION by Plaintiffs to set a status hearing (gma, ) (Entered: 03/09/2005)
60 NOTICE of Motion by Thomas Gerard Morrissey for presentment of MOTION by Plaintiffs to set a status hearing 59 before Honorable James B. Zagel on 3/15/2005 at 10:15 AM. (gma, ) (Entered: 03/09/2005)
61 MINUTE entry before Judge James B. Zagel : Motion for hearing 57 is granted, Motion for hearing 59 is granted Status hearing set for 3/22/2005 at 10:00 AM. No notice (drw, ) (Entered: 03/15/2005)
62 MINUTE entry before Judge James B. Zagel : Status hearing held on 3/22/2005. Amended motion for class certification due 4/12/2005. Answer brief due 4/26/2005. Reply to answer brief due 5/3/2005. Status hearing set for 5/10/2005 at 12:00 PM. No notice (drw, ) (Entered: 03/29/2005)
64 MOTION by Defendants County of Cook, Michael Sheahan for leave to file oversized memorandum of law (Attachments: # 1 Memorandum of Law)(gma, ) (Entered: 05/02/2005)
65 NOTICE of Motion by defendants for presentment of MOTION by Defendants County of Cook, Michael Sheahan for leave to file oversized memorandum of law

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 9 of 25

05/03/2005 05/06/2005 05/10/2005 05/10/2005 06/07/2005 06/27/2005 06/28/2005 07/01/2005 07/01/2005 07/06/2005 07/06/2005 07/07/2005
08/09/2005
08/09/2005
08/11/2005
08/18/2005

64 before Honorable James B. Zagel on 5/3/2005 at 10:15 AM. (gma, ) (Entered: 05/02/2005)
66 MINUTE entry before Judge James B. Zagel : MOTION by Defendants County of Cook, Michael Sheahan for leave to file brief in excess pages 64 is granted. No notice (drw, ) (Entered: 05/03/2005)
67 REPLY by Plaintiffs in support of the position that count one of the complaint states a claim under the Seventh Circuit's opinion; Notice of filing.(rbf, ) (Entered: 05/12/2005)
68 MINUTE entry before Judge James B. Zagel : Status hearing held on 5/10/2005. No notice (drw, ) (Entered: 05/23/2005)
69 MINUTE entry before Judge James B. Zagel : Status hearing set for 6/7/2005 at 10:00 AM. Advised in open court notice (drw, ) (Entered: 06/06/2005)
70 MINUTE entry before Judge James B. Zagel : Status hearing held on 6/7/2005. Status hearing set for 6/28/2005 at 10:00 AM. No notice (drw, ) (Entered: 06/07/2005)
71 MINUTE entry before Judge James B. Zagel : Plaintiffs are ordered to revise and resubmit their replead complaint in accordance with this opinion. Mailed notice (drw, ) (Entered: 06/27/2005)
72 MINUTE entry before Judge James B. Zagel : Status hearing reset for 8/23/2005 at 10:00 AM. Amended complaint to be filed on or by 8/23/2005. No notice (drw, ) (Entered: 06/28/2005)
73 MOTION by Plaintiffs for class certification (gma, ) (Entered: 07/05/2005)
74 NOTICE of Motion by Thomas Gerard Morrissey for presentment of MOTION by Plaintiffs for class certification 73 before Honorable James B. Zagel on 7/7/2005 at 10:15 AM. (gma, ) (Entered: 07/05/2005)
75 MEMORANDUM by plaintiffs in Support of their motion for class certification; Notice of filing. (rbf, ) (Entered: 07/08/2005)
76 FOURTH AMENDED complaint by Caprice Morales, Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart against County of Cook, Michael Sheahan; Notice of filing. (rbf, ) (Entered: 07/08/2005)
77 MINUTE entry before Judge James B. Zagel : Status hearing held on 7/7/2005. Motion for class certification 73 responses due by 8/11/2005. No reply brief ordered. Motion Hearing set for 8/25/2005 at 10:00 AM. No notice (drw, ) (Entered: 08/02/2005)
78 MOTION by Defendant Michael Sheahan to vacate 7/7/05 minute order regarding briefing schedule for class certification motion and correct record to reflect briefing schedule related to whether the fourth amended complaint comports with this court's memorandum opinion and order of 6/27/05 (las, ) (Entered: 08/10/2005)
79 NOTICE of Motion by Michael Sheahan for presentment of his motion to vacate 7/7/05 minute order regarding briefing schedule for class certification motion and correct record to reflect briefing schedule related to whether the fourth amended complaint comports with this court's memorandum opinion and order of 6/27/05 78 before Honorable James B. Zagel on 8/11/2005 at 10:15 AM. (las, ) (Entered: 08/10/2005)
82 MINUTE entry before Judge James B. Zagel : MOTION by Plaintiffs Caprice Morales, Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart to certify class 73 is entered and continued. Response due by 9/13/2005. Reply due by 9/27/2005. Motion to vacate is granted in part and denied in part for the reasons stated open court. No notice (drw, ) (Entered: 08/29/2005)
80 MOTION by defendants to strike and dismiss various allegations from plaintiffs' fourth amended complaint. (lcw, ) (Entered: 08/19/2005)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 10 of 25

08/18/2005 08/23/2005
08/23/2005
09/06/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005 09/15/2005 09/22/2005
09/22/2005
10/05/2005 10/05/2005
10/24/2005 10/24/2005 10/24/2005

81 NOTICE of Motion by defendants for presentment of motion to dismiss and strike 80 before Honorable James B. Zagel on 8/23/2005 at 10:15 AM. (lcw, ) (Entered: 08/19/2005)
84 MINUTE entry before Judge James B. Zagel : Motion hearing held on 8/23/2005 regarding motion to dismiss, motion to strike 80 . Set deadlines/hearing as to motion to dismiss, motion to strike 80 : Responses due by 9/6/2005. Replies due by 9/13/2005. Motion ruling before Honorable James B. Zagel on 9/15/2005 at 10:00 AM. No notice (drw, ) (Entered: 09/11/2005)
89 MINUTE entry before Judge James B. Zagel : Defendants motion to strike and motion to strike 80 respons due by 9/6/2005. Reply due by 9/13/2005. Status hearing set before Honorable James B. Zagel on 9/15/2005 at 10:00 AM. No notice (drw, ) (Entered: 09/16/2005)
83 RESPONSE by plaintiffs' to defendant's motion to strike and dismiss 80 ; Notice. (mjc, ) (Entered: 09/08/2005)
85 RULE 56.1(a)(3) Statement by defendants Michael Sheahan and County of Cook of undisputed facts in support of their motion for summary judgment.(mjc, ) (Entered: 09/16/2005)
86 MOTION by defendants County of Cook and Michael Sheahan for summary judgment; Notice. (mjc, ) (Entered: 09/16/2005)
87 RESPONSE by defendants County of Cook and Michael Sheahan in Opposition to plaintiffs' motion for class certification 73 . (mjc, ) (Entered: 09/16/2005)
88 MEMORANDUM of Law by defendants County of Cook and Michael Sheahan in Support of their motion for summary judgment 86 . (mjc, ). Modified on 3/19/2008 (las, ). (Entered: 09/16/2005)
91 EXHIBITS by Defendants County of Cook, Michael Sheahan to Rule 56.1 Statement of Facts regarding 86 , 88 (Exhibits) (hp, ) (Entered: 09/16/2005)
90 MINUTE entry before Judge James B. Zagel : Status hearing held and contined for 10/5/2005 at 10:00 AM. Affidavit discovery to be conducted. No notice (drw, ) (Entered: 09/16/2005)
92 MOTION by Plaintiffs Caprice Morales, Michelle Gandy, Carmen Feliciano, Helen Koss, Genise Hart for extension of time to file response/reply defendant's response to motion for class certification (Morrissey, Thomas) (Entered: 09/22/2005)
93 defendant's response to motion for class certification NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time to file response/reply 92 before Honorable James B. Zagel on 10/6/2005 at 10:15 AM. (Morrissey, Thomas) (Entered: 09/22/2005)
94 MINUTE entry before Judge James B. Zagel : Status hearing held on 10/5/2005. Rule 56 discovery statement due 10/23/2005. Status hearing set for 10/27/2005 at 10:00 AM. (drw, ) (Entered: 10/05/2005)
95 MINUTE entry before Judge James B. Zagel : MOTION by Plaintiffs Caprice Morales, Michelle Gandy, Carmen Feliciano, Helen Koss, Genise Hart for extension of time to file reply to defendant's response to motion for class certification 92 is granted. Reply to motion for class certification due by 11/1/2005. (drw, ) (Entered: 10/05/2005)
96 MOTION by Defendant Michael Sheahan to reassign case Defendants' Motion to Reassign Based on Relatedness (Attachments: # 1)(Puiszis, Steven) (Entered: 10/24/2005)
97 MOTION by Plaintiffs Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart for extension of time to file discovery plan (Morrissey, Thomas) (Entered: 10/24/2005)
98 NOTICE of Motion by Steven M. Puiszis for presentment of motion to reassign case 96 before Honorable James B. Zagel on 10/27/2005 at 10:00 AM. (Puiszis,

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 11 of 25

10/24/2005 10/25/2005 10/25/2005 10/25/2005 10/27/2005
10/27/2005 10/27/2005 10/27/2005 11/10/2005 11/10/2005 11/10/2005
11/10/2005 12/01/2005 12/09/2005 01/13/2006 02/24/2006 03/23/2006

Steven) (Entered: 10/24/2005)
99 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time 97 before Honorable James B. Zagel on 10/27/2005 at 10:15 AM. (Morrissey, Thomas) (Entered: 10/24/2005)
100 MINUTE entry before Judge James B. Zagel : Motion to dismiss 80 is granted in part. Motion to strike 80 is granted in part. Mailed notice (drw, ) (Entered: 10/25/2005)
101 RESPONSE TO DEFENDANTS' MOTION TO REASSIGN (Morrissey, Thomas) (Entered: 10/25/2005)
102 NOTICE by Caprice Morales, Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart re response to motion 101 TO REASSIGN (Morrissey, Thomas) (Entered: 10/25/2005)
103 MINUTE entry before Judge James B. Zagel : Status hearing held on 10/27/2005. MOTION by Defendant Michael Sheahan to reassign case based on relatedness 96 responses due by 10/27/2005. Reply due by 11/10/2005. MOTION by Plaintiffs Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart for extension of time to file discovery plan 97 is granted. Discovery plan due on or by 11/10/2005. Plaintiffs given leave to file a fourth amended complaint. Status hearing set for 12/1/2005 at 10:00 a.m. (drw, ) (Entered: 10/27/2005)
Set/Reset Hearings Status hearing set for 12/1/2005 at 10:00 AM. (drw, ) (Entered: 10/27/2005)
104 Revised Fourth Amended Complaint AMENDED complaint by Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart against all defendants (Morrissey, Thomas) (Entered: 10/27/2005)
105 NOTICE by Caprice Morales, Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart re amended complaint 104 Revised Fourth Amended Complaint (Morrissey, Thomas) (Entered: 10/27/2005)
106 STATEMENT PLAINTIFFS' PROPOSED DISCOVERY PLAN (Morrissey, Thomas) (Entered: 11/10/2005)
107 NOTICE by Caprice Morales, Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart Plaintiffs' Proposed Discovery Plan (Morrissey, Thomas) (Entered: 11/10/2005)
108 REPLY by Defendant County of Cook Reply Brief in Support of Motion to Reassign (Attachments: # 1 Exhibit A to Reply Brief# 2 Exhibit B to Reply Brief# 3 Exhibit C to Reply Brief# 4 Exhibit D to Reply Brief)(Puiszis, Steven) (Entered: 11/10/2005)
109 NOTICE by all defendants Notice of Filing (Puiszis, Steven) (Entered: 11/10/2005)
110 MINUTE entry before Judge James B. Zagel : MOTION by Defendant Michael Sheahan to reassign case based on relatedness 96 is denied. Status hearing reset for 12/9/2005 at 10:30 AM. Mailed notice (drw, ) (Entered: 12/01/2005)
111 MINUTE entry before Judge James B. Zagel : Status hearing held on 12/9/2005. Discovery parameters set in open court. Status hearing set for 1/13/2006 at 10:00 AM. (drw, ) (Entered: 12/12/2005)
112 MINUTE entry before Judge James B. Zagel : Status hearing held on 1/13/2006. Status hearing set for 2/24/2006 at 10:00 AM. (drw, ) (Entered: 01/25/2006)
113 MINUTE entry before Judge James B. Zagel : Status hearing held on 2/24/2006. Discovery stayed by agreement of the parties. Settlement conference date to be determined after review of further discovery. (drw, ) (Entered: 03/06/2006)
114 MINUTE entry before Judge James B. Zagel : Settlement Conference set for 3/28/2006 at 11:00 AM. Mailed notice (drw, ) (Entered: 03/23/2006)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 12 of 25

03/28/2006 04/18/2006 10/16/2006 10/16/2006 10/19/2006 10/19/2006 01/31/2007 03/28/2007
04/19/2007 05/11/2007 06/06/2007 06/14/2007 06/28/2007 06/28/2007
07/03/2007 07/09/2007 07/09/2007 07/13/2007 07/13/2007

115 MINUTE entry before Judge James B. Zagel : Settlement Conference reset for 4/18/2006 at 04:30 PM. (drw, ) (Entered: 03/28/2006)
116 MINUTE entry before Judge James B. Zagel : Settlement conference stricken until further order of court. (drw, ) (Entered: 04/18/2006)
117 ATTORNEY Appearance for Defendant Michael Sheahan by Bernard E.J. Quinn (Quinn, Bernard) (Entered: 10/16/2006)
118 NOTICE by Michael Sheahan re attorney appearance 117 (Quinn, Bernard) (Entered: 10/16/2006)
119 ATTORNEY Appearance for Defendant Michael Sheahan by Bernard E.J. Quinn AMENDED (Quinn, Bernard) (Entered: 10/19/2006)
120 NOTICE by Michael Sheahan re attorney appearance 119 AMENDED (Quinn, Bernard) (Entered: 10/19/2006)
121 MINUTE entry before Judge James B. Zagel : Status hearing set for 3/28/2007 at 10:00 AM. Failure to appeal will result in dismissal for want of prosecution. (mb, ) (Entered: 02/01/2007)
122 MINUTE entry before Judge James B. Zagel :Status hearing held on 3/28/2007 Settlement conference set for 4/19/2007 at 04:30 PM. Motion to certify class 73 is denied as moot. MOTION for summary judgment 86 is denied as moot. Mailed notice (drw, ) (Entered: 03/29/2007)
123 MINUTE entry before Judge James B. Zagel : Settlement conference held on 4/19/2007. Settlement Conference set for 5/11/2007 at 12:00 PM.Mailed notice (drw, ) (Entered: 06/06/2007)
124 MINUTE entry before Judge James B. Zagel :Settlement conference held on 5/11/2007. Mailed notice (drw, ) (Entered: 06/06/2007)
125 MINUTE entry before Judge James B. Zagel : Status hearing set for 6/15/2007 at 10:00 AM.Mailed notice (drw, ) (Entered: 06/06/2007)
126 MINUTE entry before Judge James B. Zagel : Status hearing reset for 7/13/2007 at 10:00 AM from 6/15/2007.Mailed notice (drw, ) (Entered: 06/14/2007)
127 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss, Genise HartFor Referral Of Discovery Matters To Assigned Magistrate (Morrissey, Thomas) (Entered: 06/28/2007)
128 Motion For Referral Of Discovery Matters To Assigned Magistrate NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for miscellaneous relief 127 before Honorable James B. Zagel on 7/3/2007 at 10:15 AM. (Morrissey, Thomas) (Entered: 06/28/2007)
134 MINUTE entry before Judge James B. Zagel :Motion for referral to designated magistrate judge for discovery 127 is granted.Mailed notice (drw, ) (Entered: 07/24/2007)
129 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss, Genise Hart for leave to file Fifth Amended Complaint (Attachments: # 1 Exhibit A)(Morrissey, Thomas) (Entered: 07/09/2007)
130 Fifth Amended Complaint NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for leave to file 129 before Honorable James B. Zagel on 7/13/2007 at 10:00 AM. (Morrissey, Thomas) (Entered: 07/09/2007)
135 MINUTE entry before Judge James B. Zagel :Status hearing held on 7/13/2007. Motion for leave to file fifth amended complaint 129 is granted. Status hearing set for 10/5/2007 at 10:00 AM.Mailed notice (drw, ) (Entered: 07/24/2007)
137 FIFTH AMENDED Complaint by Caprice Morales, Michelle Gandy, Carmen Feliciano, Ann Francis Gelco, Helen Koss, Genise Hart against County of Cook, Thomas Dart. (tlm) (Entered: 07/25/2007)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 13 of 25

07/16/2007 07/16/2007 07/23/2007 07/24/2007 08/02/2007 08/02/2007 08/03/2007 08/21/2007
10/05/2007 10/18/2007 11/09/2007 11/09/2007 11/09/2007 11/09/2007 11/09/2007 11/14/2007 12/20/2007 01/22/2008 01/22/2008

131 MOTION by Defendant Michael Sheahan for order re: Agreed Protective Order (Attachments: # 1 Exhibit A)(Quinn, Bernard) (Entered: 07/16/2007)
132 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion for order 131 before Honorable James B. Zagel on 7/24/2007 at 10:30 AM. (Quinn, Bernard) (Entered: 07/16/2007)
133 MINUTE entry before Judge James B. Zagel :Motion for entry of agreed protective order 131 is granted. Mailed notice (drw, ) (Entered: 07/23/2007)
136 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Magistrate Judge Martin C. Ashman for the purpose of holding proceedings related to: discovery supervision.(drw, )Mailed notice. (Entered: 07/24/2007)
138 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing set for 8/10/2007 at 10:00 AM., in courtroom 1386. Mailed notice. (is, ) (Entered: 08/02/2007)
139 ANSWER to amended complaint (Fifth Amended) by County of Cook, Thomas Dart(Quinn, Bernard) (Entered: 08/02/2007)
140 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing reset to 8/21/2007 at 10:00 AM. Mailed notice (is, ) (Entered: 08/03/2007)
141 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing held on 8/21/2007; and continued to 10/18/2007 at 10:00 AM. Fact discovery ordered closed by 1/15/2008. Expert reports and disclosures by 2/15/2008. Expert depositions by 3/17/2008. Mailed notice. (is, ) (Entered: 08/21/2007)
142 MINUTE entry before Judge James B. Zagel : Status hearing held and continued 1/29/2008 at 10:00a.m.Mailed notice (slb, ) (Entered: 10/05/2007)
143 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing held on 10/18/2007; and continued to 12/20/2007 at 10:00 AM. Mailed notice. (is, ) (Entered: 10/18/2007)
144 MOTION by Plaintiff Genise Hart to compel Depositions (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Farley, Robert) (Entered: 11/09/2007)
145 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to compel 144 before Honorable Martin C. Ashman on 11/14/2007 at 10:00 AM. (Farley, Robert) (Entered: 11/09/2007)
146 MOTION by Defendant Thomas Dart to compel Plaintiffs' Depositions (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Quinn, Bernard) (Entered: 11/09/2007)
147 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion to compel 146 before Honorable James B. Zagel on 11/14/2007 at 10:00 AM. (Quinn, Bernard) (Entered: 11/09/2007)
148 Exhibit A to Motion to Compel Plaintiffs' Depositions by Thomas Dart (Quinn, Bernard) (Entered: 11/09/2007)
149 MINUTE entry before Judge Martin C. Ashman :Plaintiff Hart's motion to compel 144 and defendant Dart's motion to compel 146 are withdrawn by request of the parties. Mailed notice. (is, ) (Entered: 11/14/2007)
150 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing held on 12/20/2007; and continued to 1/29/2008 at 10:30 AM. Fact discovery closure is extended to 1/28/2008. Mailed notice. (is, ) (Entered: 12/20/2007)
151 MOTION by Defendant Thomas Dart to reset January 29, 2008 status hearing to January 31, 2008 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Quinn, Bernard) (Entered: 01/22/2008)
152 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion to reset 151 before Honorable James B. Zagel on 1/24/2008 at 10:30 AM. (Quinn, Bernard) (Entered: 01/22/2008)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 14 of 25

01/22/2008 01/22/2008 01/23/2008 01/24/2008 01/31/2008 01/31/2008 02/12/2008 03/12/2008 03/12/2008 03/12/2008
03/12/2008 03/12/2008 03/13/2008

153 MOTION by Defendant Thomas Dart to reset January 29, 2008 status to January 31, 2008 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Quinn, Bernard) (Entered: 01/22/2008)
154 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion to reset 153 before Honorable Martin C. Ashman on 1/29/2008 at 10:15 AM. (Quinn, Bernard) (Entered: 01/22/2008)
155 MINUTE entry before Judge James B. Zagel :Motion to reset status set for 1/29/2008 151 is granted. Motion to reset 153 is denied as moot. Status hearing reset for 1/31/2008 at 10:00 AM from 1/29/2008.Mailed notice (drw, ) (Entered: 01/23/2008)
156 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing reset to 1/31/2008 at 10:15 AM. Mailed notice. (is, ) (Entered: 01/24/2008)
157 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing held on 1/31/2008; and continued to 4/16/2008 at 10:00 AM. Fact discovery is extended for the sole purpose of taking the deposition of Dr. Alimo. All parties are given leave to serve notices to admit within fourteen days. Mailed notice. (is, ) (Entered: 01/31/2008)
158 MINUTE entry before Judge James B. Zagel :Status hearing held on 1/31/2008. Status hearing set for 4/30/2008 at 10:00 AM.Mailed notice (drw, ) (Entered: 02/07/2008)
159 MINUTE entry before Judge James B. Zagel : Settlement Conference set for 3/12/2008 at 4:30 PM.Mailed notice (drw, ) (Entered: 02/12/2008)
160 MOTION by Defendants County of Cook, Thomas Dart for summary judgment (Quinn, Bernard) (Entered: 03/12/2008)
161 MOTION by Defendants County of Cook, Thomas Dart to file instanter their Oversized Memorandum of Law in Support of Summary Judgment for Defendants (Quinn, Bernard) (Entered: 03/12/2008)
162 MOTION by Defendants County of Cook, Thomas Dart to file instanter their Rule 56.1 Statement and to Exceed Paragraph Limits (Attachments: # 1 Exhibit Rule 56.1 Statement# 2 Exhibit A# 3 Exhibit B1# 4 Exhibit B2# 5 Exhibit B3# 6 Exhibit B4# 7 Exhibit B5# 8 Exhibit B6# 9 Exhibit B7# 10 Exhibit B8# 11 Exhibit B9# 12 Exhibit B10# 13 Exhibit B11# 14 Exhibit B13# 15 Exhibit B13# 16 Exhibit B14# 17 Exhibit B15# 18 Exhibit B16# 19 Exhibit B17# 20 Exhibit B18# 21 Exhibit B19# 22 Exhibit B20# 23 Exhibit B# 24 Exhibit C# 25 Exhibit C1# 26 Exhibit C2# 27 Exhibit C3# 28 Exhibit C4# 29 Exhibit C5# 30 Exhibit D# 31 Exhibit D1# 32 Exhibit D2# 33 Exhibit D3# 34 Exhibit D4# 35 Exhibit D5# 36 Exhibit D6# 37 Exhibit D7# 38 Exhibit D8# 39 Exhibit D9# 40 Exhibit D10# 41 Exhibit D11# 42 Exhibit D12# 43 Exhibit D13# 44 Exhibit D14# 45 Exhibit D15# 46 Exhibit D16# 47 Exhibit D17# 48 Exhibit D18# 49 Exhibit E# 50 Exhibit F# 51 Exhibit G# 52 Exhibit H# 53 Exhibit I# 54 Exhibit J# 55 Exhibit K# 56 Exhibit L# 57 Exhibit M# 58 Exhibit N# 59 Exhibit O# 60 Exhibit P# 61 Exhibit Q# 62 Exhibit R# 63 Exhibit S# 64 Exhibit T# 65 Exhibit U# 66 Exhibit V# 67 Exhibit W# 68 Exhibit X# 69 Exhibit Y# 70 Exhibit Z# 71 Exhibit AA# 72 Exhibit BB# 73 Exhibit CC# 74 Exhibit DD# 75 Exhibit EE)(Quinn, Bernard) (Entered: 03/12/2008)
163 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion to file instanter 161 , motion to file instanter,,,,, 162 , motion for summary judgment 160 before Honorable James B. Zagel on 3/18/2008 at 10:15 AM. (Quinn, Bernard) (Entered: 03/12/2008)
168 MINUTE entry before Judge Honorable James B. Zagel:Settlement conference held on 3/12/2008.Mailed notice (drw, ) (Entered: 04/08/2008)
164 EXHIBIT by Defendants County of Cook, Thomas Dart regarding MOTION by Defendants County of Cook, Thomas Dart to file instanter their Oversized Memorandum of Law in Support of Summary Judgment for Defendants 161 (Quinn, Bernard) (Entered: 03/13/2008)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 15 of 25

03/17/2008 03/17/2008 03/17/2008 03/18/2008 03/18/2008
03/20/2008 04/09/2008 04/14/2008 04/14/2008 04/14/2008
04/14/2008 04/14/2008

165 MOTION by Defendant Thomas Dart for leave to file Instanter the Affidavit of Assistant Director Daniel Brown as Exhibit FF in Support of Motion for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(INCORRECT PDF LINKED) (Quinn, Bernard) Modified on 4/9/2008 (lcw, ). (Entered: 03/17/2008)
166 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion for leave to file, 165 before Honorable James B. Zagel on 3/20/2008 at 10:15 AM. (Quinn, Bernard) (Entered: 03/17/2008)
167 MOTION by Defendant Thomas Dart for leave to file correct document (Attachments: # 1 Exhibit A, # 2 Errata B, # 3 Exhibit C)(Quinn, Bernard) (Entered: 03/17/2008)
169 MINUTE entry before Judge Honorable James B. Zagel:Motion to file oversized brief instanter 161 is granted. Motion to file Rule 56.1 statement in excess of fifteen pages instanter 162 is granted. Motion for leave to file affidavit of Director Brown 165 is granted. Motion for leave to file corrected document 167 is granted.Mailed notice (drw, ) (Entered: 04/08/2008)
172 RULE 56.1(A)(3) Statement by Defendants Thomas Dart,Sheriff of Cook County and The County of Cook of undisputed Facts in Support of their motion for summary judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B1, # 4 Exhibit B2, # 5 Exhibit B3, # 6 Exhibit B4, # 7 Exhibit B5, # 8 Exhibit B6, # 9 Exhibit B7, # 10 Exhibit B8, # 11 Exhibit B9, # 12 Exhibit B10, # 13 Exhibit B11, # 14 Exhibit B12, # 15 Exhibit B13, # 16 Exhibit B14, # 17 Exhibit B15, # 18 Exhibit B16, # 19 Exhibit B17, # 20 Exhibit B18, # 21 Exhibit B19, # 22 Exhibit B20, # 23 Exhibit C, # 24 Exhibit C1, # 25 Exhibit C2, # 26 Exhibit C3, # 27 Exhibit C4, # 28 Exhibit C5, # 29 Exhibit D, # 30 Exhibit D1, # 31 Exhibit D2, # 32 Exhibit D3, # 33 Exhibit D4, # 34 Exhibit D5, # 35 Exhibit D6, # 36 Exhibit D7, # 37 Exhibit D8, # 38 Exhibit D9, # 39 Exhibit D10, # 40 Exhibit D11, # 41 Exhibit D12, # 42 Exhibit D13, # 43 Exhibit D14, # 44 Exhibit D15, # 45 Exhibit D16, # 46 Exhibit D17, # 47 Exhibit D18, # 48 Exhibits E−Z, # 49 Exhibits AA−EE)(lcw, ) (Entered: 04/11/2008)
170 MINUTE entry before Judge Honorable James B. Zagel:Set agreed deadlines as to motion for summary judgment 160 : Response due by 4/14/2008. Reply due by 4/28/2008.Mailed notice (drw, ) (Entered: 04/08/2008)
171 NOTICE of Correction regarding MOTION by Defendant Thomas Dart for leave to file Instanter the Affidavit of Assistant Director Daniel Brown as Exhibit FF in Support of Motion for Summary Judgment 165 . (lcw, ) (Entered: 04/09/2008)
173 MEMORANDUM by Genise Hart in Opposition to motion for summary judgment 160 Plaintiffs Memorandum of Law In Response to Defendants' Motion for Summary Judgment (Farley, Robert) (Entered: 04/14/2008)
174 RESPONSE by Plaintiff Genise Hart Plaintiffs' Response to Defendants' Statement of Material Facts Pursuant to Local Rule 56.1(b)(3)(A) (Farley, Robert) (Entered: 04/14/2008)
175 Plaintiffs' Statement of Additional Facts Pursuant To Local Rule 56.1(b)(3)(B) STATEMENT by Genise Hart In Opposition To Defendants' Motion For Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24)(Farley, Robert) (Entered: 04/14/2008)
176 MOTION by Plaintiff Genise Hart for leave to file excess pages − oversized Memorandum of Law in Response to Defendants' Motion for Summary Judgment and to file Rule 56.1(b) Statement exceeding paragraph limits for Additional Facts (Farley, Robert) (Entered: 04/14/2008)
177 Plaintiffs' NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for leave to file excess pages, 176 before Honorable James B. Zagel on 4/17/2008 at 10:15 AM. (Farley, Robert) (Entered: 04/14/2008)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 16 of 25

04/14/2008
04/14/2008 04/14/2008 04/15/2008 04/16/2008 04/16/2008 04/17/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/29/2008
04/30/2008
05/08/2008
06/09/2008 06/30/2008

178 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss, Genise Hart to compel last known address of Dr. Alaimo (Morrissey, Thomas)(INCORRECT PDF LINKED) Modified on 4/15/2008 (lcw, ). (Entered: 04/14/2008)
179 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 178 before Honorable Martin C. Ashman on 4/22/2008 at 10:30 AM. (Morrissey, Thomas) (Entered: 04/14/2008)
180 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss, Genise Hart to compel corrected motion to compel disclosure of address of Dr. Alaimo (Morrissey, Thomas) (Entered: 04/14/2008)
181 NOTICE of Correction regarding MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss, Genise Hart to compel last known address of Dr. Alaimo 178 . (lcw, ) (Entered: 04/15/2008)
182 MINUTE entry before Judge Honorable Martin C. Ashman:Plaintiffs' motion to compel 180 is granted. Magistrate Judge Status hearing held on 4/16/2008; and continued to 6/9/2008 at 10:00 AM. Mailed notice. (is, ) (Entered: 04/16/2008)
183 MINUTE entry before Judge Honorable Martin C. Ashman:On plaintiffs' motion to compel 180 , the defendants are ordered to produce the last known address of Dr. Alaimo. Mailed notice. (is, ) (Entered: 04/16/2008)
184 MINUTE entry before Judge Honorable James B. Zagel:Motion for leave to file excess pages 176 is granted.Mailed notice (drw, ) (Entered: 04/17/2008)
185 REPLY by Thomas Dart in Support of MOTION by Defendants County of Cook, Thomas Dart for summary judgment 160 (Quinn, Bernard) Text Modified on 4/29/2008 (lcw, ). (Entered: 04/28/2008)
186 RESPONSE by Defendant Thomas Dart to Plaintiffs' Rule 56.1(b)(3)(B) Statement of Additional Facts (Quinn, Bernard) (Entered: 04/28/2008)
187 MOTION by Defendant Thomas Dart for leave to file Supplemental Local Rule 56.1(a)(3) Statement of Undisputed Facts (Quinn, Bernard) (Entered: 04/28/2008)
188 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion for leave to file 187 before Honorable James B. Zagel on 5/1/2008 at 10:15 AM. (Quinn, Bernard) (Entered: 04/28/2008)
189 MOTION by Defendant Thomas Dart for leave to file Supplemental Local Rule 56.1(a)(3) Statement of Undisputed Facts Instanter (Quinn, Bernard) (Entered: 04/28/2008)
190 MINUTE entry before Judge Honorable James B. Zagel:Motion for leave to file supplemental brief 187 is granted; Motion for leave to file supplemental brief 189 is granted. Status hearing 4/30/2008 reset for 6/30/2008 at 10:00 AM. Mailed notice (drw, ) (Entered: 04/29/2008)
191 Defendants' Supplemental Local Rule 56.1(a)(3) Statement of Undisputed Facts STATEMENT by County of Cook, Thomas Dart (Attachments: # 1 Exhibit Table of Exhibits, # 2 Exhibit GG, # 3 Exhibit HH, # 4 Exhibit II, # 5 Exhibit JJ, # 6 Exhibit KK, # 7 Exhibit LL)(Quinn, Bernard) (Entered: 04/30/2008)
192 RESPONSE by Plaintiff Antoinatte Davis Plaintiffs' Response To Defendants' Statement of Supplemental Statement of Material Facts pursuant to LR 56.1(b)(3)(A) (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 05/08/2008)
193 MINUTE entry before the Honorable Martin C. Ashman: Magistrate Judge Status hearing held on 6/9/2008; and continued to 7/28/2008 at 10:00 AM. Mailed notice. (is, ) (Entered: 06/09/2008)
194 MINUTE entry before the Honorable James B. Zagel:Status hearing held on 6/30/2008. Status hearing set for 7/22/2008 at 10:00 AM. Mailed notice (drw, ) (Entered: 07/10/2008)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 17 of 25

07/21/2008 07/21/2008 07/22/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/25/2008 07/25/2008
07/25/2008 07/28/2008 07/30/2008
08/08/2008 08/08/2008 08/14/2008 08/14/2008 08/21/2008 08/21/2008

195 MINUTE entry before the Honorable Martin C. Ashman: Magistrate Judge Status hearing reset to 7/29/2008 at 10:00 AM. Mailed notice. (is, ) (Entered: 07/21/2008)
196 MINUTE entry before the Honorable Martin C. Ashman: Magistrate Judge Status hearing reset to 7/30/2008 at 10:00 AM. Mailed notice. (is, ) (Entered: 07/21/2008)
197 MINUTE entry before the Honorable James B. Zagel:Status hearing held on 7/22/2008. Status hearing set for 8/26/2008 at 10:00 AM.Mailed notice (drw, ) (Entered: 07/22/2008)
198 MOTION by Plaintiff Genise Hart to file instanter Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion For Class Certification (Farley, Robert) (Entered: 07/24/2008)
199 REPLY by Plaintiff Genise Hart to Defendants' Response to Plaintiffs' Motion For Class Certification (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 07/24/2008)
200 Plaintiffs' NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion to file instanter 198 before Honorable James B. Zagel on 7/29/2008 at 10:15 AM. (Farley, Robert) (Entered: 07/24/2008)
201 MINUTE entry before the Honorable James B. Zagel:MOTION for summary judgment 160 is granted in part and denied in part.Mailed notice (drw, ) (Entered: 07/24/2008)
202 ATTORNEY Appearance for Defendant County of Cook by Patrick Stephen Smith (Smith, Patrick) (Entered: 07/25/2008)
203 RESPONSE by County of Cook, Thomas Dartin Opposition to MOTION by Plaintiff Genise Hart to file instanter Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion For Class Certification 198 (Quinn, Bernard) (Entered: 07/25/2008)
204 NOTICE by County of Cook, Thomas Dart re response in opposition to motion 203 by Plaintiffs to File Reply to Defendants' Response to Plaintiffs' Motion for Class Certification (Quinn, Bernard) (Entered: 07/25/2008)
205 MINUTE entry before the Honorable James B. Zagel:Motion to file reply instanter 198 is granted.Mailed notice (drw, ) (Entered: 07/28/2008)
206 MINUTE entry before the Honorable Martin C. Ashman: Magistrate Judge Status hearing held on 7/30/2008; and continued to 10/6/2008 at 10:00 AM. Discovery is reopened for the purpose only of discovery of all the reports of the Justice Department that are involved in the report made on July, 2008 for the next thirty days. Plaintiffs' expert disclosures by 9/30/2008. Defendants' expert disclosures by 10/30/2008. All depositions of experts, if any, to be completed by 11/28/2008. Mailed notice. (is, ) (Entered: 07/30/2008)
207 Defendant's Motion to Set a Date for Trial by County of Cook (Smith, Patrick) (Entered: 08/08/2008)
208 NOTICE of Motion by Patrick Stephen Smith for presentment of before Honorable James B. Zagel on 8/14/2008 at 10:15 AM. (Smith, Patrick) (Entered: 08/08/2008)
209 MINUTE entry before the Honorable James B. Zagel:Motion hearing held on 8/14/2008 regarding motion to set trial 207 . Motion to set trial 207 is granted. Date to be determined. Mailed notice (drw, ) (Entered: 08/14/2008)
210 MINUTE entry before the Honorable James B. Zagel:Plaintiffs' motion for class certification is denied.Mailed notice (drw, ) (Entered: 08/14/2008)
211 MOTION by Plaintiff Genise Hart for extension of time to complete discovery (Farley, Robert) (Entered: 08/21/2008)
212 Plaintiffs' NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for extension of time to complete discovery 211 before Honorable Martin C. Ashman on 8/26/2008 at 10:30 AM. (Farley, Robert) (Entered: 08/21/2008)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 18 of 25

08/21/2008 08/25/2008 09/02/2008
09/24/2008 09/26/2008 09/26/2008 09/29/2008 10/14/2008 10/27/2008 10/27/2008 10/28/2008 10/28/2008 11/03/2008
11/14/2008 12/09/2008 12/09/2008

213 MINUTE entry before the Honorable Martin C. Ashman: Plaintiffs' motion for extension of time to complete discovery and expert disclosure 211 is reset to 8/27/2008 at 10:00 AM., by request of the parties. Mailed notice. (is, ) (Entered: 08/21/2008)
214 MINUTE entry before the Honorable Martin C. Ashman: Plaintiffs' motion for extension of time to complete discovery 211 is reset to 9/2/2008 at 10:00 AM., by agreement of the parties. Mailed notice. (is, ) (Entered: 08/25/2008)
215 MINUTE entry before the Honorable Martin C. Ashman: Plaintiffs' motion for extension of time to complete discovery and expert disclosure 211 is granted. Oral argument held on 9/2/2008 regarding motion for extension of time to complete discovery 211 . All dates are extended by thirty days. Magistrate Judge Status hearing of 10/6/2008 is vacated. Plaintiffs' time for expert disclosures is extended to 10/30/2008. Defendants' expert disclosures by 12/1/2008. All depositions of experts, if any, to be completed by 12/29/2008. Magistrate Judge Status hearing is reset to 11/14/2008 at 10:00 AM. Mailed notice. (is, ) (Entered: 09/02/2008)
216 MOTION by Plaintiff Genise Hart to certify class Plaintiffs' Supplemental Motion for Class Certification (Farley, Robert) (Entered: 09/24/2008)
217 MOTION by Defendants County of Cook, Thomas Dart for leave to file Response to Plaintiffs' Supplemental Motion for Class Certification, on or Before October 14, 2008 (Attachments: # 1 Exhibit A)(Quinn, Bernard) (Entered: 09/26/2008)
218 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion for leave to file 217 before Honorable James B. Zagel on 9/30/2008 at 10:15 AM. (Quinn, Bernard) (Entered: 09/26/2008)
219 MINUTE entry before the Honorable James B. Zagel:Motion for leave to file response 217 is granted.Mailed notice (drw, ) (Entered: 09/29/2008)
220 RESPONSE by County of Cook, Thomas Dartin Opposition to MOTION by Plaintiff Genise Hart to certify class Plaintiffs' Supplemental Motion for Class Certification 216 (Quinn, Bernard) (Entered: 10/14/2008)
221 MOTION by Plaintiff Genise Hart for extension of time Expert's Written Report (Morrissey, Thomas) (Entered: 10/27/2008)
222 Plaintiffs' Expert's Written Report NOTICE of Motion by Thomas Gerard Morrissey for presentment of extension of time 221 before Honorable Martin C. Ashman on 11/4/2009 at 10:30 AM. (Morrissey, Thomas) (Entered: 10/27/2008)
223 Amended NOTICE of Motion by Thomas Gerard Morrissey for presentment of extension of time 221 before Honorable Martin C. Ashman on 11/4/2008 at 10:30 AM. (Morrissey, Thomas) (Entered: 10/28/2008)
224 RESPONSE by Thomas Dart to MOTION by Plaintiff Genise Hart for extension of time Expert's Written Report 221 (Quinn, Bernard) (Entered: 10/28/2008)
225 MINUTE entry before the Honorable Martin C. Ashman: Plaintiffs' motion to expand time for expert to file report 221 is granted without objection. Plaintiffs' time to produce their expert report is extended to 11/10/2008. Defendants to produce their expert report by 12/11/2008. Mailed notice. (is, ) (Entered: 11/03/2008)
226 MINUTE entry before the Honorable Martin C. Ashman: Magistrate Judge Status hearing held on 11/14/2008. Expert depositions to be concluded by 1/30/2009. Magistrate Judge Status hearing set for 2/12/2009 at 10:00 AM. Mailed notice. (is, ) (Entered: 11/14/2008)
227 MOTION by Defendant Thomas Dart to strike Rule 26 Report and to Bar Expert from Expressing Opinion Relating to the Department of Justice Report Dated July 11, 2008 (Attachments: # 1 Exhibit A)(Quinn, Bernard) (Entered: 12/09/2008)
228 NOTICE of Motion by Bernard E.J. Quinn for presentment of motion to strike 227 before Honorable James B. Zagel on 12/16/2008 at 10:15 AM. (Quinn, Bernard) (Entered: 12/09/2008)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 19 of 25

12/16/2008 12/23/2008 12/23/2008 01/06/2009 01/23/2009
01/30/2009
02/12/2009
08/11/2009 08/11/2009 09/10/2009 09/11/2009
01/22/2010 02/05/2010
02/16/2010 03/02/2010 04/12/2010 04/12/2010

229 MINUTE entry before the Honorable James B. Zagel:Motion hearing held on 12/16/2008 regarding motion to strike 227 . Response due by 1/26/2009.Mailed notice (drw, ) (Entered: 12/16/2008)
230 MOTION by Defendant Thomas Dart for extension of time /deadline for expert depositions (Quinn, Bernard) (Entered: 12/23/2008)
231 NOTICE of Motion by Bernard E.J. Quinn for presentment of extension of time 230 before Honorable James B. Zagel on 1/13/2009 at 10:30 AM. (Quinn, Bernard) (Entered: 12/23/2008)
232 MINUTE entry before the Honorable James B. Zagel:Motion for extension of time until 3/6/2009 to complete expert depositions 230 is granted.Mailed notice (drw, ) (Entered: 01/06/2009)
233 RESPONSE by Genise Hartin Opposition to MOTION by Defendant Thomas Dart to strike Rule 26 Report and to Bar Expert from Expressing Opinion Relating to the Department of Justice Report Dated July 11, 2008 227 (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 01/23/2009)
234 REPLY by County of Cook, Thomas Dart to response in opposition to motion, 233 , MOTION by Defendant Thomas Dart to strike Rule 26 Report and to Bar Expert from Expressing Opinion Relating to the Department of Justice Report Dated July 11, 2008 227 (Quinn, Bernard) (Entered: 01/30/2009)
235 MINUTE entry before the Honorable Martin C. Ashman: Magistrate Judge Status hearing held on 2/12/2009. Discovery is completed. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Honorable Martin C. Ashman no longer referred to the case. Mailed notice. (is, ) (Entered: 02/12/2009)
236 MINUTE entry before the Honorable James B. Zagel: Status hearing set for 8/25/2009 at 10:00 AM.Mailed notice (drw, ) (Entered: 08/11/2009)
237 MINUTE entry before the Honorable James B. Zagel: Status hearing (8−25−2009) is reset for 9/10/2009 at 10:00 AM.Mailed notice (drw, ) (Entered: 08/11/2009)
238 MINUTE entry before the Honorable James B. Zagel:Status hearing held on 9/10/2009. Ruling on class certification and motion to strike to be made by mail.Mailed notice (drw, ) (Entered: 09/11/2009)
239 MINUTE entry before the Honorable James B. Zagel: Plaintiffs' supplemental motion for class certification 216 is denied. Defendants' motion to strike any reference by Sheila Vaughn to the July 2008 Department of Justice Report in her report and to preclude Vaughn from expressing opinions relating to the DOJ Report 227 is granted, except with respect to the relevance of the DOJ report to Plaintiffs' counsel's good faith basis for filing the supplemental motion for class certification. Mailed notice (drw, ) Modified on 9/15/2009 (aac, ). (Entered: 09/11/2009)
240 MINUTE entry before Honorable James B. Zagel: Status hearing set for 2/5/2010 at 10:00 AM.Mailed notice (drw, ) (Entered: 01/22/2010)
241 MINUTE entry before Honorable James B. Zagel:Status hearing held on 2/5/2010. Pretrial Order due by 5/4/2010. Jury trial estimate 3−5 days. Defendant Dart to substitute counsel. Status hearing set for 5/5/2010 at 10:00 AM.Mailed notice (drw, ) (Entered: 02/12/2010)
242 ATTORNEY Appearance for Defendants County of Cook, Thomas Dart by Kevin William Frey (Frey, Kevin) (Entered: 02/16/2010)
243 NOTICE by Kevin William Frey of Change of Address (Frey, Kevin) (Entered: 03/02/2010)
244 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Genise Hart, Helen Koss for extension of time to file Pretrial Order (Morrissey, Thomas) (Entered: 04/12/2010)
245 Pretrial Order NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time to file 244 before Honorable James B. Zagel on

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 20 of 25

04/19/2010
06/18/2010 06/18/2010 06/23/2010 07/07/2010 07/08/2010 09/03/2010 09/03/2010 09/08/2010
09/22/2010 09/22/2010 09/27/2010 09/29/2010 10/20/2010 01/31/2011
02/23/2011 02/24/2011 02/24/2011

4/20/2010 at 10:15 AM. (Morrissey, Thomas) (Entered: 04/12/2010)
246 MINUTE entry before Honorable James B. Zagel:Motion for extension of time to file pretrial order 244 is granted. Pretrial Order now due by 7/1/2010. Status hearing (5−5−2010) is reset for 7/8/2010 at 10:00 AM.Mailed notice (drw, ) (Entered: 04/19/2010)
247 MOTION by Plaintiff Genise Hart for extension of time to file pretrial order. (Farley, Robert) (Entered: 06/18/2010)
248 Plaintiffs' NOTICE of Motion by Robert Hugh Farley, Jr for presentment of extension of time 247 before Honorable James B. Zagel on 6/24/2010 at 10:15 AM. (Farley, Robert) (Entered: 06/18/2010)
249 MINUTE entry before Honorable James B. Zagel:Motion for extension of time to file pretrial order 247 is granted. Pretrial Order now due by 9/1/2010.Mailed notice (drw, ) (Entered: 06/23/2010)
250 MINUTE entry before Honorable James B. Zagel: Status hearing set for 7/8/2010 time is reset for 8:45 AM.Mailed notice (drw, ) (Entered: 07/07/2010)
251 MINUTE entry before Honorable James B. Zagel:Status hearing held on 7/8/2010. Trial date to be determined. Status hearing set for 9/8/2010 at 10:00 AM.Mailed notice (drw, ) (Entered: 08/05/2010)
252 MOTION by Plaintiff Genise Hart for extension of time (Morrissey, Thomas) (Entered: 09/03/2010)
253 NOTICE of Motion by Thomas Gerard Morrissey for presentment of extension of time 252 before Honorable James B. Zagel on 9/9/2010 at 10:15 AM. (Morrissey, Thomas) (Entered: 09/03/2010)
254 MINUTE entry before Honorable James B. Zagel:Status hearing held on 9/8/2010. Motion for extension of time until 9/25/2010 to file pretrial order 252 is granted. Status hearing set for 10/20/2010 at 10:00 AM. Mailed notice (drw, ) (Entered: 09/08/2010)
255 MOTION by counsel for Defendants County of Cook, Thomas Dart to withdraw as attorney (Puiszis, Steven) (Entered: 09/22/2010)
256 NOTICE of Motion by Steven M. Puiszis for presentment of motion to withdraw as attorney 255 before Honorable James B. Zagel on 9/30/2010 at 10:15 AM. (Puiszis, Steven) (Entered: 09/22/2010)
257 PROPOSED Pretrial Order submitted by Plaintiffs and Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farley, Robert) (Entered: 09/27/2010)
258 MINUTE entry before Honorable James B. Zagel:Motion to withdraw as attorney 255 is granted. The appearances of attorney Steven M. Puiszis and Bernard E.J. Quinn are withdrawn. Mailed notice (drw, ) (Entered: 09/29/2010)
259 MINUTE entry before Honorable James B. Zagel:Status hearing held on 10/20/2010. Final pretrial conference date to be determined. Jury trial (3 days) set for 3/7/2011 at 10:30 AM. Mailed notice (drw, ) (Entered: 10/20/2010)
260 ATTORNEY Appearance for Plaintiffs Antoinatte Davis, Carmen Feliciano, Michelle Gandy, Ann Francis Gelco, Genise Hart, Helen Koss, Elena Meitzler, Caprice Morales, Teresa Quintello, Flora Stewart by Stacey Lynn Scanlon (Scanlon, Stacey) (Entered: 01/31/2011)
261 ATTORNEY Appearance for Defendants County of Cook, Thomas Dart by Maureen O'Donoghue Hannon (Hannon, Maureen) (Entered: 02/23/2011)
262 MOTION by Plaintiff Michelle Gandy for writ − requesting Order that she be brought before this Court for Trial (Farley, Robert) (Entered: 02/24/2011)
263 Plaintiffs NOTICE of Motion by Robert Hugh Farley, Jr for presentment of motion for writ 262 before Honorable James B. Zagel on 2/28/2011 at 10:15 AM. (Farley, Robert) (Entered: 02/24/2011)

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 21 of 25

02/28/2011
03/03/2011 03/03/2011 03/04/2011 03/04/2011 03/04/2011 03/04/2011 03/07/2011
03/07/2011 03/08/2011
03/08/2011 03/08/2011 03/09/2011 03/10/2011 03/10/2011 03/11/2011 03/11/2011 03/11/2011 03/11/2011

266 MINUTE entry before Honorable James B. Zagel:Motion hearing held on 2/28/2011. MOTION by Plaintiff Michelle Gandy for writ requesting Order that she be brought before this Court for Trial 262 is entered and continued. Jury trial date reset for 3/8/2011 at 10:30 AM. Mailed notice (drw, ) (Entered: 03/04/2011)
264 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Kossin limine supplemental (Scanlon, Stacey) (Entered: 03/03/2011)
265 NOTICE of Motion by Stacey Lynn Scanlon for presentment of motion in limine 264 before Honorable James B. Zagel on 3/8/2011 at 10:00 AM. (Scanlon, Stacey) (Entered: 03/03/2011)
267 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss to amend/correct Agreed Motion to Amend Pretrial Order (Scanlon, Stacey) (Entered: 03/04/2011)
268 NOTICE of Motion by Stacey Lynn Scanlon for presentment of motion to amend/correct 267 before Honorable James B. Zagel on 3/8/2011 at 10:00 AM. (Scanlon, Stacey) (Entered: 03/04/2011)
269 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss for leave to file Plaintiffs' Response to Defendants' Motions in Limine (Scanlon, Stacey) (Entered: 03/04/2011)
270 NOTICE of Motion by Stacey Lynn Scanlon for presentment of motion for leave to file 269 before Honorable James B. Zagel on 3/8/2011 at 10:00 AM. (Scanlon, Stacey) (Entered: 03/04/2011)
271 MOTION by Plaintiffs Michelle Gandy, Ann Francis Gelco, Helen Koss to amend/correct proposed pretrial order 257 Memorandum in Support of Plaintiffs' Motion in Limine to Limit or Preclude Impeachment with Prior Convictions (Scanlon, Stacey) (Entered: 03/07/2011)
272 NOTICE of Motion by Stacey Lynn Scanlon for presentment of motion to amend/correct,, motion for relief, 271 before Honorable James B. Zagel on 3/8/2011 at 10:00 AM. (Scanlon, Stacey) (Entered: 03/07/2011)
273 MINUTE entry before Honorable James B. Zagel:Motion hearing held on 3/8/2011. Motion in limine 264 is granted in part and denied in part. Motion to amend/correct 267 is granted. Motion for leave to file 269 is granted. Motion to amend/correct 271 is granted. Oral motion of plaintiff to dismiss the claims of Michelle Gandy is granted.Mailed notice (drw, ) (Entered: 03/08/2011)
274 MINUTE entry before Honorable James B. Zagel:Plaintiff Michelle Gandy claims are withdrawn.Mailed notice (drw, ) (Entered: 03/08/2011)
276 MINUTE entry before Honorable James B. Zagel:Voir dire held on 3/8/2011. Jury trial set for 3/9/2011 at 9:00 AM. Mailed notice (drw, ) (Entered: 03/23/2011)
277 MINUTE entry before Honorable James B. Zagel:Jury trial begun held on 3/9/2011. Evidence entered and continued. Jury trial set for 3/10/2011 at 9:00 AM. Mailed notice (drw, ) (Entered: 03/23/2011)
275 MINUTE entry before Honorable James B. Zagel:Jury trial held and continued to 3/11/2011 at 09:00 AM. Mailed notice (jms, ) (Entered: 03/10/2011)
278 MINUTE entry before Honorable James B. Zagel:Jury trial held on 3/10/2011. Jury trial set for 3/11/2011 at 9:00 AM. Mailed notice (drw, ) (Entered: 03/23/2011)
279 MINUTE entry before Honorable James B. Zagel:Jury trial held. Jury trial completed on 3/11/2011. Jury return verdicts in favor of plaintiff Helen Kos and An Gelso and against defendant.Mailed notice (drw, ) (Entered: 03/23/2011)
280 MINUTE entry before Honorable James B. Zagel:Civil case terminated. Mailed notice (drw, ) (Entered: 03/29/2011)
281 JURY Instructions Given(ma, ) (Entered: 03/31/2011)
282 JURY Verdict entered in favor of Plaintiff (Mailed Notice) (RESTRICTED) (Attachments: # 1 Jury Note, # 2 Jury Inquiry, # 3 Jury Inquiry #2)(ma, ) (Entered:

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 22 of 25

04/08/2011
04/08/2011 04/08/2011 04/13/2011 04/15/2011 04/15/2011 04/25/2011 04/28/2011 04/28/2011 05/04/2011 05/16/2011 05/16/2011 05/31/2011 06/07/2011 06/08/2011

03/31/2011)
283 MOTION by Defendants County of Cook, Thomas Dartfor judgment not withstanding the verdict, MOTION by Defendants County of Cook, Thomas Dart for new trial (Attachments: # 1 Appendix Table of Contents for Memorandum of Law, # 2 Supplement Memorandum of Law in Support of Motion for Judgment as a Matter of Law or, alternatively, a New Trial, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D Cover Page, # 7 Exhibit Exhibit D, # 8 Exhibit Exhibit E, # 9 Exhibit Exhibit F, # 10 Exhibit Exhibit G)(Frey, Kevin) (Entered: 04/08/2011)
284 MOTION by Defendants County of Cook, Thomas Dart for leave to file excess pages (Frey, Kevin) (Entered: 04/08/2011)
285 NOTICE of Motion by Kevin William Frey for presentment of motion for judgment not withstanding the verdict, motion for new trial,,,, 283 , motion for leave to file excess pages 284 before Honorable James B. Zagel on 4/14/2011 at 10:15 AM. (Frey, Kevin) (Entered: 04/08/2011)
286 MINUTE entry before Honorable James B. Zagel:Motion for leave to file briefs in excess of fifteen pages 284 is granted. Motion for judgment not withstanding the verdict; new trial; and judgment as a matter of law are entered and continued.Mailed notice (drw, ) (Entered: 04/13/2011)
287 MOTION by Defendants County of Cook, Thomas Dart for extension of time to supplement defendants motion for new trial with transcript (Smith, Patrick) (Entered: 04/15/2011)
288 NOTICE of Motion by Patrick Stephen Smith for presentment of extension of time 287 before Honorable James B. Zagel on 4/26/2011 at 10:15 AM. (Smith, Patrick) (Entered: 04/15/2011)
289 MINUTE entry before Honorable James B. Zagel:Motion to supplement defendants motion for new trial with transcript 287 is granted. Mailed notice (drw, ) (Entered: 04/25/2011)
290 MOTION by counsel for Plaintiffs Antoinatte Davis, Carmen Feliciano, Michelle Gandy, Ann Francis Gelco, Genise Hart, Helen Koss, Elena Meitzler, Caprice Morales, Teresa Quintello, Flora Stewart to withdraw as attorney Stacey Scanlon (Morrissey, Thomas) (Entered: 04/28/2011)
291 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to withdraw as attorney, 290 before Honorable James B. Zagel on 5/5/2011 at 09:00 AM. (Morrissey, Thomas) (Entered: 04/28/2011)
292 MINUTE entry before Honorable James B. Zagel:Motion to withdraw as attorney 290 is granted. The appearance of attorney Stacey Lynn Scanlon is withdrawn.Mailed notice (drw, ) (Entered: 05/04/2011)
293 MEMORANDUM by County of Cook, Thomas Dart in support of motion for judgment not withstanding the verdict, motion for new trial,,,, 283 Supplemental (Frey, Kevin) (Entered: 05/16/2011)
294 NOTICE by County of Cook, Thomas Dart re memorandum in support of motion 293 (Frey, Kevin) (Entered: 05/16/2011)
295 RESPONSE by Genise Hartin Opposition to MOTION by Defendants County of Cook, Thomas Dartfor judgment not withstanding the verdictMOTION by Defendants County of Cook, Thomas Dart for new trial 283 (Attachments: # 1 Exhibit A)(Farley, Robert) (Entered: 05/31/2011)
296 MINUTE entry before Honorable James B. Zagel:Motion for judgment not withstanding the verdict and motion for new trial 283 reply due by 6/14/2011.Mailed notice (drw, ) (Entered: 06/07/2011)
297 MOTION by Defendants County of Cook, Thomas Dart for extension of time to file response/reply as to motion for judgment not withstanding the verdict, motion for new trial,,,, 283 , response in opposition to motion 295 (Smith, Patrick) (Entered: 06/08/2011)

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06/08/2011 06/08/2011 06/28/2011 06/28/2011 11/08/2011 11/22/2011
11/22/2011
11/22/2011
11/22/2011

298 NOTICE of Motion by Patrick Stephen Smith for presentment of motion for extension of time to file response/reply, motion for relief,, 297 before Honorable James B. Zagel on 6/16/2011 at 10:15 AM. (Smith, Patrick) (Entered: 06/08/2011)
299 MINUTE entry before Honorable James B. Zagel:Motion for extension of time to file reply as to motion for judgment not withstanding the verdict, motion for new trial 297 is granted. MOTION by Defendants County of Cook, Thomas Dart for judgment not withstanding the verdict and motion for new trial 283 reply is now due by 6/28/2011.Mailed notice (drw, ) (Entered: 06/08/2011)
300 REPLY by Defendants County of Cook, Thomas Dart to motion for judgment not withstanding the verdict, motion for new trial,,,, 283 , response in opposition to motion 295 (Frey, Kevin) (Entered: 06/28/2011)
301 NOTICE by County of Cook, Thomas Dart re reply 300 (Frey, Kevin) (Entered: 06/28/2011)
302 MINUTE entry before Honorable James B. Zagel:Defendant's motion for judgment not withstanding the verdict 283 or alternatively, motion for a new trial is denied. The parties are instructed to follow the court's procedure for fee petitions.Mailed notice (drw, ) (Entered: 11/08/2011)
303 TRANSCRIPT OF PROCEEDINGS held on March 8, 2011 before the Honorable James B. Zagel. Volume 1. Court Reporter Contact Information: Blanca I. Lara, 219 South Dearborn, Room 2504, Chicago, Illinois, blanca_lara@ilnd.uscourts.gov, 312 435−5895. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 12/13/2011. Redacted Transcript Deadline set for 12/23/2011. Release of Transcript Restriction set for 2/21/2012. (Lara, Blanca) (Entered: 11/22/2011)
304 TRANSCRIPT OF PROCEEDINGS held on March 9, 2011 before the Honorable James B. Zagel. Volume 2. Court Reporter Contact Information: Blanca I. Lara, 219 South Dearborn, Room 2504, Chicago, Illinois, blanca_lara@ilnd.uscourts.gov, 312 435−5895. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 12/13/2011. Redacted Transcript Deadline set for 12/23/2011. Release of Transcript Restriction set for 2/21/2012. (Lara, Blanca) (Entered: 11/22/2011)
305 TRANSCRIPT OF PROCEEDINGS held on March 10, 2011 before the Honorable James B. Zagel. Volume 3. Court Reporter Contact Information: Blanca I. Lara, 219 South Dearborn, Room 2504, Chicago, Illinois, blanca_lara@ilnd.uscourts.gov, 312 435−5895. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 12/13/2011. Redacted Transcript Deadline set for 12/23/2011. Release of Transcript Restriction set for 2/21/2012. (Lara, Blanca) (Entered: 11/22/2011)
306 TRANSCRIPT OF PROCEEDINGS held on March 11, 2011 before the Honorable James B. Zagel. Volume 4. Court Reporter Contact Information: Blanca I. Lara, 219 South Dearborn, Room 2504, Chicago, Illinois, blanca_lara@ilnd.uscourts.gov, 312 435−5895. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction.

Case: 1:03-cv-01768 As of: 05/10/2013 09:58 AM CDT 24 of 25

11/22/2011 11/22/2011 11/22/2011 11/22/2011 11/23/2011 11/23/2011 11/23/2011 11/23/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/07/2011
12/14/2011
12/14/2011 01/05/2012 01/05/2012 01/05/2012

After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 12/13/2011. Redacted Transcript Deadline set for 12/23/2011. Release of Transcript Restriction set for 2/21/2012. (Lara, Blanca) (Entered: 11/22/2011)
307 NOTICE of appeal by County of Cook, Thomas Dart regarding orders 302 , 282 (Frey, Kevin) (Entered: 11/22/2011)
308 DOCKETING Statement by County of Cook, Thomas Dart regarding notice of appeal 307 (Frey, Kevin) (Entered: 11/22/2011)
309 DESIGNATION by County of Cook, Thomas Dart of record on appeal (Frey, Kevin) (Entered: 11/22/2011)
310 NOTICE by County of Cook, Thomas Dart re designation of record on appeal 309 , notice of appeal 307 , docketing statement 308 (Frey, Kevin) (Entered: 11/22/2011)
311 NOTICE of Appeal Due letter sent to counsel of record (dj, ) (Entered: 11/23/2011)
312 TRANSMITTED to the 7th Circuit the short record on notice of appeal 307 . Notified counsel (dj, ) (Entered: 11/23/2011)
314 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 307 ; USCA Case No. 11−3628. (ph, ) (Entered: 11/28/2011)
315 CIRCUIT Rule 3(b) Notice. (ph, ) (Entered: 11/28/2011)
316 NOTICE of cross appeal by Genise Hart ; Filing fee $ 455, receipt number 0752−6615617. (Farley, Robert) (Entered: 12/01/2011)
317 DOCKETING Statement by Genise Hart regarding notice of cross appeal 316 (Farley, Robert) (Entered: 12/01/2011)
318 NOTICE by Genise Hart regarding Plaintiffs Notice of Cross Appeal and Plaintiffs−Appellants Docketing Statement (Farley, Robert) (Entered: 12/01/2011)
319 NOTICE of Appeal Due letter sent to counsel of record. (gel, ) (Entered: 12/01/2011)
320 TRANSMITTED to the 7th Circuit the short record on notice of cross appeal 316 . Notified counsel (gel, ) (Entered: 12/01/2011)
321 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of cross appeal 316 ; USCA Case No. 11−3677. (kj, ) (Entered: 12/02/2011)
322 NOTICE of Case Opening from 7th Circuit. (kj, ) (Entered: 12/02/2011)
323 BILL of Costs (Attachments: # 1 Supplement Itemized List of Costs, # 2 Supplement Copies of Reciepts, # 3 Supplement Copies of Reciepts, # 4 Supplement Copies of Reciepts)(Morrissey, Thomas) (Entered: 12/07/2011)
324 RESPONSE by Defendants County of Cook, Thomas Dart to bill of costs 323 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Frey, Kevin) (Entered: 12/14/2011)
325 NOTICE by County of Cook, Thomas Dart re Response, 324 (Frey, Kevin) (Entered: 12/14/2011)
326 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 316 , 307 (USCA no. 11−3628.11−3677). (gel, ) (Entered: 01/05/2012)
327 ENTERED JUDGMENT. Signed on 1/5/2012.Mailed notice(drw, ) (Entered: 01/05/2012)
328 USCA RECEIVED on 1/5/2012 the long record regarding notice of cross appeal 316 , notice of appeal 307 . (gel, ) (Entered: 01/06/2012)

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01/06/2012 01/12/2012 01/24/2012 01/31/2012 01/31/2012 01/31/2012 02/01/2012 02/08/2012 04/13/2012 04/13/2012

329 USCA RECEIVED on 1/6/2012, 1 flash drive electronic pleadings and transcripts, 4 physical transcripts, 1 flash drive electronic vault item, and 1 physical loose pleading record. (kj, ) Modified on 1/9/2012 (kj, ). (Entered: 01/09/2012)
330 AMENDED JUDGMENT IN A CIVIL ACTION Signed on 1/12/2012.Mailed notice(drw, ) (Entered: 01/12/2012)
331 MINUTE entry before Honorable James B. Zagel: Settlement Conference set for 2/8/2012 at 11:30 AM.Mailed notice (drw, ) (Entered: 01/24/2012)
332 MOTION by Plaintiffs Ann Francis Gelco, Helen Koss for extension of time to file Attorneys Fees and Non−taxable Costs (Morrissey, Thomas) (Entered: 01/31/2012)
333 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time to file 332 before Honorable James B. Zagel on 1/5/2012 at 10:15 AM. (Morrissey, Thomas) (Entered: 01/31/2012)
334 Amended NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time to file 332 before Honorable James B. Zagel on 2/2/2012 at 10:15 AM. (Morrissey, Thomas) (Entered: 01/31/2012)
335 MINUTE entry before Honorable James B. Zagel:Motion for extension of time to file petition for attorneys fees and costs 332 is granted. Notice of motion hearing 2/2/2012 is stricken.Mailed notice (drw, ) (Entered: 02/01/2012)
336 MINUTE entry before Honorable James B. Zagel:Settlement conference held on 2/8/2012.Mailed notice (drw, ) (Entered: 03/21/2012)
337 LETTER from the USCA retaining the record on appeal in USCA no. 11−3628 &11−3677 ; record to be returned later. (ph, ) (Entered: 04/16/2012)
338 MANDATE of USCA dated 4/13/12 regarding notice of cross appeal 316 , notice of appeal 307 ; USCA No. 11−3628 &11−3677. It Is Ordered that this case is Dismissed, pursuant to Federal Rule of Appellate Procedure 42(b). (ph, ) (Entered: 04/16/2012)

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No: 04-1443
GENISE HART, et. al., Plaintiffs-Appellants, v.
MICHAEL SHEAHAN, et. al., Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. The Honorable James Zagel, Judge Presiding.
REPLY BRIEF OF PLAINTIFFS-APPELLANTS
ROBERT H. FARLEY, JR. 1155 S. Washington Street Naperville, Illinois 60540 Phone: 630-369-0103 Fax: 630-369-0195 farleylaw@aol.com THOMAS G. MORRISSEY. 10249 S. Western Avenue Chicago, Illinois 60643 Phone: 773-233-7900 Fax: 773-239-0387
ATTORNEYS FOR PLAINTIFFS-APPELLANTS

TABLE OF CONTENTS Table of Contents ................................................................................................... -iTable of Authorities .............................................................................................. -iiReply Brief of Plaintiffs-Appellants ........................................................................ 1 I. Facts ..................................................................................................................... 1
A. Lockdown Search Of Division III and Division IV ............................... 1 B. Completion Of Lockdown Search Of Division III ................................. 2 II. Injunctive Relief ................................................................................................. 3 III. Plaintiffs Stated A Cause Of Action ................................................................. 4 A. Sheriff’s General Practice Of Conducting Prolonged Weekend
Lockdowns Serves No Legitimate Purposes and Amounts To Punishment Of PreTrial Detainees ......................................................4 B. Abusive Lockdowns Are Unconstitutional.............................................7 C. District Court Incorrectly Deferred To Defendant’s Jail Arguments and Ignored Factual Assumptions ...................................................... 8 D. Cook County Jail Administrators Lack Expertise................................12 E. PLRA Is Not Applicable To Those Plaintiffs Who Had Been Released At The Time of The Filing Of The Lawsuit .......................14 F. Deliberate Indifference ..........................................................................15 IV. Leave To Amend Complaint ...........................................................................16 Conclusion ..............................................................................................................17 Certificate of Compliance with F.R.A.P. Rule 32(a)(7) .........................................18 Circuit Rule 31(e)(1) Certification .........................................................................19 Proof of Service ......................................................................................................20
i

TABLE OF AUTHORITIES CASES Bell v. Wolfish, 441 U.S. 520 (1979)................................................................................4, 5 Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003)..............................................................14 DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988)..............................................................9 DeShaney v. Winnebago County Dept. Of Social Servs., 489 U. S. 189 (1986)..................3 Farmer v. Brennan, 511 U.S. 825 (1994).......................................................................4, 15 Gary v. Sheahan, 1999 U.S. Dist. LEXIS 17305 (N.D. Ill. 1999)......................................11 Hart v. Sheahan, 2003 U.S. Dist. LEXIS 22867 (N.D. IL 2003).....................................3, 5 Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998).....................................................................14 May v. Sheahan, 226 F.3d 876 (7th Cir. 2000).................................................................8, 9 Mitchell v. Horn, 318 F. 3d 523 (7th Cir. 2003)...................................................................3 Payne v. Pauley, 337, F.3d 767 (7th Cir. 2003)....................................................................8 Rhodes v. Chapman, 452 U.S. 337 (1981)...........................................................................8 Tesch v. County of Green Lake, 157 F. 3d 465 (7th Cir. 1998)............................................4 Turner v. Safley, 482 U.S. 78 (1987)...................................................................................7
OTHER AUTHORITIES Cook County Illinois Grand Jury Report, August 30, 2004 ...................................... 12, 13 Federal Rule of Evidence 408...........................................................................................17 Federal Rule of Evidence 803(8)(c)...................................................................................13
ii

REPLY BRIEF I. Facts A. Lockdown Search Of Division III and Division IV. Division III and Division IV are separate and distinct housing units for women at the Cook County Department of Corrections (“Jail”). The divisions are located approximately four blocks apart and each division has its own correctional staff. The superintendent of each division determines when a lockdown weekend will occur and the searches of the tiers are conducted by the staff from that division. Defendant mistakenly infers that Division III and IV conduct weekend lockdowns at the same time each month and that the searches of the combined 22 tiers takes up to 15 to 22 hours. (Def. Brief at 6, 16, 19, 24) Division III has only six tiers and it can be searched in approximately 3 hours and Division IV with sixteen tiers can be searched in approximately 8 hours. The facts as alleged in the Second Amended Complaint state that it takes correctional officers anywhere from 20 to 40 minutes to search a tier. (Plts. Brief at p. 6; Doc. 14-A-par. 17) These facts are consistent with the Defendant’s Division IV Shakedown / Search log reviewed by Shelia Vaughn, a correctional expert who found that these documents reflect that it takes approximately 30 minutes for five to six officers to perform a search of a typical wing. (Plts. App. at 51) Sheila Vaughn concluded that a search of Division III should take approximately 3 hours and the search of Division IV would take approximately 8 hours. (Plts. App. at 52)1 Moreover, Charles Fasano, the Director of the John Howard Association, who is the court
1Ms. Vaughan noted that if an additional 5 or 6 officers were assigned to the lockdown search, the time to search each division could be cut in half. (Plts. App. at 54)
1

appointed monitor at the Jail, stated that it would be possible to conduct a routine shakedown of Division III in approximately 3-4 hours. (Plts. Brief at p. 9, par. 6; Doc. 17 at page 5-6)
B. Completion Of Lockdown Search Of Division III. Division III houses women with special medical needs, including but not limited to inmates with severe mental illnesses; women in need of prenatal care; women in need of medical care; and women being treated for substance abuse. (Plts. App. at page 5, par. 3) The practice in Division III is to search a majority of the 6 tiers at the start of a lockdown on Friday afternoons and to continue the lockdown after the completion of the searches until Sunday evening. (Plts. App. at page 6, par. 6) For example, on Friday, December 20, 2002, Division III went on lockdown at 1:30 p.m. and the first and second floors of the Division were searched that afternoon, however, those inmates remained on lockdown until Sunday, December 22, 2002 until 5:30 p.m. (Plts. App. at page 15, par. 26; Ptls. App. 29-50; Doc. 38 - 3rd Amend Comp) Division III has one of the highest ratios of correctional officers to inmates at the Jail and according to Director Fasano has more than sufficient staff to complete a search of the tiers in Division Three in under four hours. (Plt. App. 13-14 at par. 22) Fasano testified that a 48 hour weekend lockdown in Division III is clearly excessive and the continuation of a lockdown after the tiers are searched is in conflict with good principals of correctional operation. Furthermore, Director Fasano stated that prolonged lockdowns cause inmates to suffer from mental distress and inmates to injure cellmates.. (Plts. Brief at p. 9; Doc 17 at page 5-6 plus attachments of deposition testimony) Director Fasano is personally aware of one person suffering a heart attack and one person delivering a baby during a weekend lockdown. (Plts. App. at p. 14, par. 30; Doc. 38 - 3rd Amend Compl. at par. 30)
2

II. Injunctive Relief The defendants do not challenge the District Court’s finding that plaintiff Kos has standing to challenge the Sheriff’s weekend lockdown practice and to seek injunctive relief. Ms. Kos is the only plaintiff in this case who was a pretrial detainee at the time the case was filed. The District Court properly found that she has exhausted all administrative remedies available before filing suit. Hart v. Sheahan, 2003 U.S. Dist. LEXIS 22867 *3, *7 (N.D. Ill. 2003). Although the defendants erroneously questions the plaintiffs’ entitlement to money damages (Def. Brief at 30-31), it is clear that the Prison Litigation Reform Act (PLRA) also does not present a bar to injunctive relief. Mitchell v. Horn, 318 F. 3d 523, 533 (7th Cir. 2003). Plaintiff Kos claims that during extended weekend lockdowns, she has been injured by fellow inmates and denied needed medical attention because the Sheriff has shirked his responsibility to provide medical care and protection during these prolonged lockdowns. (Doc. 14-attachment at par. 41). Plaintiff Kos further alleges that she experienced labor pains during one of the weekend lockdowns and during another lockdown she helped in the delivery of her cellmate’s baby because the guards did not respond to calls for medical assistance. (Plt. App. 11-12 at par. 14) In DeShaney v. Winnebago County Dept. Of Social Servs., 489 U. S. 189, 200 (1986), the Court stated that:
When the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs---e.g. food, clothing, shelter, medical care, and reasonable safety---it transgresses the substantive limits on state action set by the Eight Amendment and the Due Process Clause. The District Court erred when it dismissed Plaintiff’s Koss claim for injunctive relief because the
3

Sheriff has a constitutional duty to protect inmates from violence inflicted by other inmates and
to provide medical care to inmate under Farmer v. Brennan, 511 U.S. 825 (1994).
III. Plaintiffs Stated A Cause of Action
A. Sheriff’s General Practice Of Conducting Prolonged Weekend Lockdowns Serves No Legitimate Purposes and Amounts To Punishment Of PreTrial Detainees.
The plaintiffs maintain that the Sheriff’s general practice of extended weekend lockdowns
which continue after housing tiers are searched, serves no legitimate governmental interest and it
amounts to punishment of the pre-trial detainees under the Due Process Clause. In Tesch v. County of Green Lake, 157 F. 3d 465, 473 (7th Cir. 1998), this Court discussed the two lines of
cases for determining the state of mind required of a defendant under claims brought by pretrial detainees. The first test2 under Bell v. Wolfish should be used:
When the State imposes a general practice, rule, or restriction of pretrial confinement, it manifests its intent to subject all pretrial detainees to that practice, rule, or restriction. Similarly, even in situations in which the State does not mean to deny basic human necessities, we infer the State’s intent when the restriction and its effect on pretrial detainees are known and the State imposes the restriction on pretrial detainees anyway. Id. at 475.
Under the second line of cases arising out of the denial of basic human necessities to
pretrial detainee, this Court held that the deliberate indifference standard applies. Id. at 474. The
District Court properly found that the present case should be consider under Bell. “Since the
Plaintiffs’ allege that the general practice of weekend lockdown searches amounts to punishment,
4
2 Under Bell, if a restriction or condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Id. at 539.

I find that the Bell standard applies.” Hart at 14. Defendants agree that the Bell test governs in this case. (Def. Brief at 14)
The defendants concur with the District Court’s opinion that since the parties agree that there is a legitimate reason for conducting lockdowns to maintain security at the Jail, the inquiry was over under Bell and the District Court properly deferred to the presumed expertise of the Jail administrators in regards to the duration of the lockdown and the need to continue the lockdown after the tiers were searched. (Def. Brief at 16-19). In response to the plaintiffs’ claim that the actual practice for conducting these weekend lockdowns in Division III and IV is excessive, arbitrary or purposeless, defendant offers only two defenses. First, the defendant argues that all movement in a division must be restricted until all the tiers in a division are searched and secondly, that there would be an additional cost if more guards were assigned to conduct the searches in a shorter period of time. (Def. Brief at 18, 19) In regards to the issue of constricting movement, the Sheriff states:
Unless the divisions are locked down and detainees’ movements are restricted during the shakedown or search of all tiers (as well as common areas and other rooms within a division of the jail), it is reasonable to assume, as the Court assumed in Block, that detainees could enlist the help of others to hid contraband or weapons from the guards somewhere outside of a particular area of the division. (emphasis added) (Def. Brief at 18) (See also, Def. Brief at 26) As an initial matter, the tiers are self contained units within a division and it is impossible to enter or leave a tier without first passing through a set of interlock doors. (Doc. 14-A-par. 14) Therefore, the physical structure of the housing divisions prevents the movement of pretrial detainees outside their tier during a lockdown and the passing of contraband to inmates in other tiers when a lockdown is not extended over several days. Furthermore, the Sheriff’s assumption
5

that security at the Jail is enhanced by delaying the timing of the searches of all the tiers in a
division over a 50 hour period is wrong. Logically, if all the tiers in a division are searched in a
prompt manner, the inmates have less an opportunity to dispose of contraband and/or pass
contraband to other tiers. Sheila Vaughan a correctional expert stated in her report the following:
[W]hen the search extends over two days it is impossible to prevent inmates from other wings from coming into contact with each other. Meals are delivered to the wing/tiers and distributed to the cells by inmate workers, garbage is removed from the cells and wing/tires, and inmates are sent to visits or clinic thereby affording inmates from different wings an opportunity to commingle.
For searches to be effective they should be frequent and unannounced, a policy also reflected in the Cook County Corrections Department General Order 9.7. Once a weekend lockdown is initiated, the surprise element of the search is gone. Any inmate in possession of contraband would know to ‘use it or lose it’ once the lockdown commenced. Without the element of surprise, the ability to discover contraband is greatly reduced. (Plt. App. at p. 53)
Defendants assumption that the Sheriff’s practice of delaying the searches of all the tiers in a
division over a 50 hour period lessen the possible that detainees will enlist the help of other
inmates is false and there is no evidence to support this argument for justifying continuing to
lock women down after their tiers have been searched.
The defendants’ second argument that it would be more costly to conduct the searches
over a shorter period because “more personnel over the weekend would be needed to search all
22 tiers in a shorter time” is without merit. (Def. Brief at 19) As a factual matter, this statement
is misleading because Division III and IV do not jointly conduct lockdowns over the same
weekend and the same guards are not used to conduct the tier searches. Additionally, Ms.
Vaughan concluded after reviewing the Defendants’ shakedown/search logs, that Division III
which has only 6 tiers can be searched in three hours using the same level of staffing which is
6

currently used by the Sheriff. (Plt. App. 51-52) The search of Division IV, which has 16 tiers, would take approximately 8 hours using the same number of guards according to Ms. Vaughan and Mr. Fasano. (Plt. App. 51-52) Therefore there would be no additional cost to the Sheriff if the lockdown searches were done in a reasonable manner. In Turner v. Safley, 482 U.S. 78, 9091 (1987), the Court stated that:
[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable. But is an “exaggerated response” to prison concerns. This is not a “least restrictive alternative” test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider evidence that the regulation does not satisfy the reasonable relationship standard. The District Court erred when it failed to even consider the statement of Mr. Fasano in the Second Amendment Complaint, that the existing lockdown practice serves no legitimate penological interest (Doc. 14-A-par. 27, 30) and instead gave complete deference to the Sheriff. The finding by the District Court was premature and prevented the plaintiffs from presenting evidence to support their allegations that the prolonged weekend lockdown practice was unreasonable, excessive, abusive, inflicted punishment on pretrial detainees and served no legitimate penological interest. B. Abusive Lockdowns Are Unconstitional. The Defendant fails to understand the nature of Plaintiffs claims under the Due Process Clause of the Fourteenth Amendment. The Plaintiffs claim that lockdowns conducted in an abusive manner are unconstitutional and the entire lockdown procedure must be viewed in its
7

totality.3 During the abusive and prolonged lockdowns, the Sheriff fails to protect pretrial inmates from harm from other inmates and fails to provide medical treatment. (Plt. Brief at 14) The Sheriff incorrectly attempts to frame the issue by claiming that the Plaintiffs are only objecting to the length of the lockdown and nothing more. (Def. Brief at 16-17) The totality of the lockdown must be viewed in its entirety. Just as certain conditions at a Jail are not per se Eighth Amendment violations such as double-celling or overcrowded conditions, however if these conditions of confinement lead to “deprivations of . . . medical care” or when they cause an “increase [in] violence among inmates or create other conditions intolerable for prison confinement,” then these conditions are Eighth Amendment violations. Rhodes v. Chapman, 452 U.S. 337, 348 (1981) Likewise, when lockdowns are conducted in a manner at the Jail which are abusive, punitive and cause injury among the inmates, then such procedures violate the rights of the Plaintiffs pretrial detainees.
C. District Court’s Incorrectly Deferred To Defendant’ s Jail Arguments and Ignored Factual Allegations.
The Defendant argues that it was proper for the District Court to accept their arguments advanced in their motion to dismiss that only the Sheriff should decide “[h]ow to maintain security and conduct a division-wide search at CCDOC.” (Def. Brief at 37) This argument was rejected by this Circuit Court in May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000) as the Sheriff argued that shackling hospital detainees is likewise rational related to legitimate security interest.
3 Just as reasonable force may be permitted to make an arrest, the use of “excessive force” is unconstitutional. (See Payne v. Pauley, 337, F.3d 767, 778 (7th Cir. 2003), “A police officer’s use of force is unconstitutional if, ‘judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.’ Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987).” Likewise, lockdowns are permissible, but an excessive or abusive lockdown is unconstitutional.
8

This Circuit stated that May’s allegations were more than adequate to survive a motion to dismiss.
The Defendant’s attempt to distinguish May by arguing that shackling a pretrial detainee is different than locking down a pretrial detainee is without merit. (Def. Brief at 24) This Court stated in May that “it is hard to see how shackling an AIDS patient to his or her bed around the clock, despite the presence of a guard, is an appropriate policy for carrying out this purpose. Such a purpose is plainly excessive in the absence of any indication that the detainee poses a security risk.” Id., at 884. Likewise, it is hard to see how locking down a pretrial detainee for up to 50 hours in their cell after their tier has already been searched is an appropriate policy for carrying out the purpose of searching for contraband. Moreover, In May, the pretrial detainees shackled were hospital patients. In the instant case, in Division III, the Jail houses women with special medical needs, such as women with severe mental illness; women in need of prenatal care; women in need of medical care; and women being treated for substance abuse. (Plts. App. 5 at par. 3)4 Additionally, Ms. Vaughan, a correctional expert stated, “During a lock down weekend inmates could be restricted to their wings or tiers, but not locked inside their cells. . . The Administration would have the same ability to control contraband as currently exists. (Plts. App. 54)
As in May, this Court has not accepted at face value the claim by correctional officials that security concerns override any consideration of whether less restrictive measures can be used by the correctional facility. In DeMallory v. Cullen, 855 F.2d 442, 448 (7th Cir. 1988), this Court
4 Also, Division III has one of the highest ratios of correctional officers to inmates at the Jail and according to Director Fasano has more than sufficient staff to complete a search of the tiers in Division Three in under four hours. (Plt. App. 13-14 at par. 22)
9

stated:

The defendants justify the restrictions on DeMallory’s access to legal assistance on the grounds that he and other inmates in the Adjustment Center are security risks. Generalized security concerns, however, are insufficient to support such a ban. Instead, prison officials must come forward with evidence that the specific contact at issue threatens security and must show that less restrictive measures, such as precounseling searches are not possible. (citations omitted) WCI officials have done neither. Moreover, several genuine issues of material fact remain relating to less-restrictive measures, which precludes awarding summary judgment for the defendants at this stage.

* * *

The State argues that direct contact between inmates and [inmate] paralegals would overtax prison resources because of the security risk involved in permitting paralegals into the segregated Adjustment Center. Yet the record reflects that, at least in some other limited circumstances, general population inmates were allowed into the Adjustment Center under the supervision of prison officials. Id., at 448.

In the instant case, the Defendant argues “[u]nless the divisions are locked down and detainees’s

movements are restricted during the shakedown or search of all tiers (as well as the common

areas and other rooms within a division of the jail)” then the lockdown would be compromised.

(Def. Brief at 18) However, the divisions are not completely locked down as the inmate workers

deliver meals to the tiers; garbage is removed from the tiers by inmate workers; and inmates are

sent to visits or clinics, which permits inmates with an opportunity to commingle with areas

under lockdown and which have not been searched. (Plt App. at 53) Accordingly, the current

lockdown procedures are compromised by the Jail’s existing policy of permitting commingling

among the inmates.

.

The Defendants are wrong in claiming that no weight should be given to the opinion of

10

Charles Fasona by incorrectly characterizing the opinions and findings of Charles Fasano as “legal conclusions.” (Def. Brief at 33) The Plaintiffs have alleged that Charles Fasano, a former administrator at the Cook County Jail, and the current Director of the John Howard Association, has opinioned that the current practices and procedures followed for weekend lockdowns in Division Three and Four serve no legitimate penological objective and place inmates at risk to be injured and in fact. Director Fasano is aware of inmates having been injured during the lockdowns and the risk is not generalized as the Plaintiffs have been injured physically and/or emotionally by the current weekend lockdown procedures. (Plts. Brief at 6-9, 15)
Moreover, in the instant case, another person knowledgeable about correctional operations, Sheila Vaughn, rendered an opinion that there are no legitimate penelogical interests being served by the current weekend lock down procedures at the Jail. (Plts. App. 9-10 at. par 19; App. 20; App. 51-54)
In Gary v. Sheahan, 1999 U.S. Dist. LEXIS 17305 (N.D. Ill. 1999), the Court entered a permanent injunction against the Sheriff from strip searching female inmate court returns who had been judicially discharged from the Jail. The District Court rejected the Sheriff’s argument which was “argued throughout this case that the potential security threats of not strip searching inmates when they return to the Jail outweighs any harm caused to the individual plaintiffs by the search.” as the facts demonstrated that the “potential security threat could not be that overwhelming since the defendant does not strip search returning male inmates on a regular basis.” Id., at 8. Likewise, the Plaintiffs in the instant case, should be permitted to challenge the Defendant’s arguments and assumptions and develop a factual record to clearly demonstrate that
11

the lockdowns are conducted in an abusive unconstitutional manner.
D. Cook County Jail Administrators Lack Expertise. The Defendant argues that “[h]ow to maintain security and conduct a division-wide
search at CCDOC is a decision ‘peculiarly within the province and professional expertise of
correctional officials.’” (Def. Brief at p. 37) The Defendant further argues that “judicial
deference must be accorded to prison administrators because they have the expertise in prison
administration. (Def. Brief at p. 17) In reply to the Defendant’s argument, the ‘professional
expertise’ of the Cook County Department of Corrections has recently been seriously challenged
by a “Report of the Extended March 2003 Cook County, Illinois Grand Jury August 30, 2004,” which released its report on September 16, 2004.5
The Grand Jury was assigned by the Honorable Paul Biebel., Jr., Presiding Judge of the
Criminal Division to investigate several incidents of alleged physical abuse at the Jail, as well as
the overall conditions and operations at the Jail and to prepare a report. The Grand Jury which
was assisted by Thomas A. Hett, a retired Cook County Circuit Court Judge. The Grand Jury in
the section titled, “Standards and Criteria for Employment,” found the following:
[The Sheriff] has filled a number of positions of importance, directly impacting the operations of the jail, with people who appear to have no background in corrections -- Zelda Whittler, the Undersheriff, James Ryan, the Director of Operations, and Richard Remus, Superintendent of the SORT unit at the time of the 1999 incident .
Even the Executive Director, Callie Baird, has no experience in corrections (Exhibit 71). She is a lawyer, familiar with the jail as a Public Defender and
5 The Cook County Grand Jury Report is reported at www.chicagotribune.com. To view the report, under the section “News/Home page,” click on “special reports.” Under special reports, click on the section “Tribune special report - justice derailed,” and then click on Chapter 8 “Cook County Jail Beatings.”
12

heard the gripes of her clients. . .
* * *
James Ryan, a cousin of Sheriff Sheahan, also testified before the Grand Jury (Exhibit 21), and aside from the fact that the Grand Jury generally found him to be not credible, he offered no background in either management or corrections to justify his position. . .
Another example of employment that adversely affected the operation of the jail was the appointment of Richard Remus as Superintendent of the SORT unit . . . Remus never attended the Sheriff’s Training Academy and his personnel file does not indicate any prior experience in corrections. . . Richard Remus, before and after his employment with the Sheriff’s Office has practiced the trade of plumber. He lives in the 19th Ward of the City of Chicago, the same area where the Sheriff resides. . . The employment of Richard Remus , a 19th Ward neighbor and James Ryan a relative, both of whom, in the eyes of the Grand Jurors, are unqualified to participate in, supervise, and direct operations of the Department of Corrections, raises the specter of cronyism in the selection of the higher ranks of the Office. (Cook County Grand Jury Report at p. 105-109)
The factual findings that the top administrators at the Jail appear to have no background
in corrections by the Grand Jury Report are findings which are admissible against the Defendant
under Federal Rule of Evidence 803(8)(c). Under Rule 803(8)(c), the factual findings resulting
from an investigation made pursuant to authority granted by law are removed from the rule
against hearsay unless circumstances indicate untrustworthiness. Because of this presumption,
that report is not to be excluded under the hearsay rule and the party opposing the admission of
the report must prove the report’s untrustworthiness. Even assuming the factual findings by the
Grand Jury Report are not admissaible, the Plaintiffs could still present evidence through
witnesses that the Jail administrators lack the training and expertise to run the institution and lack
the expertise to conduct “weekend” lockdowns in a manner which satisfies legitimate
penological interests to rebut any arguments by the Defendant that the Court should defer to the
13

expertise of the Jail officials. E. PLRA Is Not Applicable To Those Plaintiffs Who Had Been Released At The Time Of The Filing Of The Lawsuit. The Sheriff incorrectly argues that the Plaintiff Gelco “failed to allege anything more than
de minimis physical injuries” and is “precluded from seeking monetary damages for emotional distress. (Def. Brief at 31) First, the Plaintiff Gelco was not an inmate at the Cook County Jail at the time of the filing of the lawsuit. (Doc. 14-A-par. 36) The PLRA is not applicable to exprisoners. Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). Secondly, the physical injuries to the Plaintiff Gelco were not de minimis as she was struck in the jaw and injured in the process. (Doc. 14-A-par. 39)
As to Plaintiff Koss, although she was a detainee inmate at the time of the filing of the lawsuit, her physical injuries are not de minimis as argued by the Defendants. (Def. Brief at 31) Helen Koss “was attacked by her cell made and was struck numerous times which caused bruises and she had clumps of her hair pulled out of her head.” (Doc. 14-A-par. 41) Even if Koss suffered no physical injuries, the PLRA is not a bar for a prisoner seeking “injunctive relief” or “claims for nominal and punitive damages.” Calhoun v. DeTella, 319 F.3d 936, 940, 941 (7th Cir. 2003). In Calhoun, the Circuit Court stated, “[w]e have long ago decided that, at a minimum, a plaintiff who proves a constitutional violation is entitled to nominal damages.” Id., at 941. “Although Calhoun does not specifically request nominal damages. . .his amended complaint contains a prayer for ‘such other relief as it may appear plaintiff is entitled.’” Id.,at 943. Likewise, in the instant case, the Plaintiffs have a prayer for relief to “[grant Plaintiffs any and all other relief as law and justice demand.” (Def. App. 57; Plts. App. 27-28)
14

F. Deliberate Indifference. Although the Defendant argues that the “proper inquiry” of whether the conditions of the lockdown amount to punishment (Def. Brief at p. 15), the Defendant also argues separately that the “the general risks faced by inmates [during weekend lockdowns] does not suffice to establish a deliberate indifference due process claim.” (Def. Brief at 32) “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). The Plaintiffs have not only sufficiently pled a claim of punishment, the Plaintiffs have also pled a claim of deliberate indifference. The Plaintiff Koss was physically and emotionally injured during the weekend lockdown in April, 2002; the Plaintiff Gelso was physically and emotionally injured during the weekend lockdown of May, 2002; Director Fasano based on his knowledge and experience at the Jail knew that prolong lockdowns caused mental and physical injuries to inmates and greater requests for medical services; Antoinatte Davis became severely depressed during the weekend lockdown of January 24, 2003 and attempted to commit suicide after her calls for assistance from the guards went unanswered; Joyce Owens during the weekend lockdown of July 14, 2002 threatened to kill herself if not released from lockdown and on the next day, cut her wrist. (Plts. Brief at 6-7, 9, 11-12) Plaintiffs have sufficiently pled to satisfy Farmer as the Court stated, “if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was ‘longstanding, persuasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official
15

being sued had been exposed to information concerning the risk and thus ‘must have know’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendantofficial had actual knowledge of the risk.’ Id., at 842-843.
IV. Leave To Amend Complaint The Plaintiffs sought “to file a Third Amended Complaint to set forth additional facts in support of their allegations that the Sheriff’s policy and practice related to weekend lockdowns is excessive and serves no legitimate penological interest.” (Plts. App. 1; Doc 38) The Defendant faults the Plaintiffs for not including the “new” allegations relating to the additional penological opinions of Charles Fasano, the Director of the John Howard Association and the penological opinions of Sheila Vaughn, a correctional expert prior to filing the Second Amended Complaint and prior to the Court ruling on the motion to dismiss. (Def. Brief at 38-40). The reason for the delay in including the “new” allegations set forth in the Third Amended Complaint is twofold. First, the Plaintiffs believed that they had set forth sufficient facts contained in the Second Amended Complaint to survive a motion to dismiss and therefore the Plaintiffs did not include the new allegations. Secondly, based on serious settlement discussions with the District Court and the Defendants, the Plaintiffs believed that this case would settle due to the belief that the Plaintiffs had stated a viable cause of action against the Defendants and delayed including the “new” allegations. Settlement discussions were held with the District Court and the Defendant on April 22, 2003 and June 27, 2003 in chambers. Although as a general rule, evidence of promises, offers, and acceptance of compromise or attempts to compromise a disputed claim, either as to validity or amount, is inadmissable, evidence related to compromise need not be excluded when the evidence is offered for another
16

purpose, such as “negativing a contention of undue delay.” Fed.R.Evid. 408. Evidence of settlement discussions is admissible when the Defendant raises the issue of delay in amending the Complaint.
CONCLUSION The Plaintiffs request that this Court reverse the order of the District Court which dismissed the Plaintiffs claims or in the alternative, reverse the District Court and permit the Plaintiffs to file a Third Amended Complaint.

Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, Il. 60643 (773)-233-7900
Robert H. Farley, Jr. Robert H. Farley, Jr., Ltd. 1155 S. Washington Naperville, Il. 60540 (630)-369-0103

Respectfully submitted, One of the Plaintiffs Attorneys

17

CERTIFICATION OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undesigned, counsel of record for the Plaintiffs-Appellants, furnishes the following in compliance with F.R.A.P. Rule 32(a)(7): I hereby certify that this reply brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7) for a brief produced with a proportionally spaced font. The length of this reply brief is 5,241 words. Dated: September 30, 2004
Robert H. Farley, Jr.
18

CIRCUIT RULE 31(e)(1) CERTIFICATION The undesigned, counsel of record for the Plaintiffs-Appellants, furnishes the following in compliance with Circuit Rule 31(e)(1): The full contents of the brief, from the cover to the conclusion is provided in digital form. Dated: September 30, 2004.
Robert H. Farley, Jr.
19

PROOF OF SERVICE The undersigned, counsel for the Plaintiffs-Appellants, hereby certifies that on September 30, 2004, two copies of the Reply Brief as well as a digital version containing the brief, were sent via federal express to counsel for the Defendants-Appellees. Dated: September 30, 2004
Robert H. Farley, Jr.
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Hart v. Sheahan, 396 F. 3d 887 - Court of Appeals, 7th Circuit 2005

396 F.3d 887 (2005)

Genise HART, et al., Plaintiffs-Appellants, v.
Michael SHEAHAN, Sheriff of Cook County, and Cook County, Defendants-Appellees.
No. 04-1443.

United States Court of Appeals, Seventh Circuit.
Argued November 30, 2004. Decided February 1, 2005.

8898

*888 *889 Thomas G. Morrissey (argued), Chicago, IL, Robert H. Farley, Jr., for Plaintiff-

Appellant.

Stephen R. Swofford, Hinshaw & Culbertson, Chicago, IL, Richard A. Devine, Office of the Cook County State Attorney, Steven M. Puiszis (argued), Chicago, IL, Defendant-Appellee

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge.

This is an appeal from the dismissal, for failure to state a claim, of a suit by female inmates of
the Cook County Jail in Chicago against the jail's superintendent and the County. The plaintiffs are pretrial detainees who complain that the defendants, by gratuitously exposing
them to dangerous and degrading conditions of confinement, are depriving them of their liberty without due process of law and thus violating the Fourteenth Amendment. They seek
an injunction and damages.

We begin with a difficult question of appellate jurisdiction. The plaintiffs appealed within 30
days of the denial of their postjudgment motion under Fed.R.Civ.P. 59(e) for reconsideration of the judgment dismissing their case. But whether the appeal brought up for review not only
the denial of the motion but also — what is much more important given the limited scope of appellate review of a denial of a Rule 59(e) motion — the dismissal of the suit depends on
whether the motion was filed within 10 days after the entry of the judgment. Fed. R.App. P. 4
(a)(4)(A)(iv). The judgment was entered on December 19, 2003. The Rule 59(b) motion was filed on January 7, which, because of the exclusion of Christmas and weekend days, was the
eleventh day after the filing of the motion unless December 26 is also excluded from the computation — and it is excluded only if it was a "legal holiday" within the meaning of
Fed.R.Civ.P. 6(a)

That rule provides that "when the period of time prescribed or allowed [by a Federal Rule of

Civil Procedure] is less than 11 days, intermediate ... legal holidays shall be excluded in the

computation," "legal holiday" being defined in the rule to include not only Thanksgiving,

Christmas, and other holidays enumerated in the rule but also "any other day appointed as a

holiday by the President or the Congress of the United States, or by the state in which the

district court is held." The day after Christmas is not one of the enumerated holidays. But on

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December 9, 2003, President Bush had issued Executive Order *890 13320, § 3, 68 Fed.Reg.

69,295, which states, so far as pertinent here, that "Friday, December 26, 2003, shall be

considered as falling within the scope of Executive Order 11582 of February 11, 1971, and of

5 U.S.C. 5546(b)." So we go to Executive Order 11582, § 2(a), 36 Fed.Reg. 2,957 (Feb. 11,

1971), and find that it specifies how federal employees are to be compensated on legal

holidays or "any other calendar day designated as a holiday by Federal statute or Executive

order." Section 5546(b) of Title 5 likewise specifies compensation for "an employee who

performs work on a holiday designated by Federal statute [or] Executive order." (The

President's authority to declare legal holidays is implied by this provision and also by 5 U.S.C.

§ 6104(3), as well as by joint resolutions that were eventually codified in these statutes. J.

Res. 5, 23 Stat. 516 (Jan. 6, 1885); J. Res. 551, 52 Stat. 1246 (June 29, 1938).)

The defendants argue that because Executive Order 13320, on which the plaintiffs rely for the
proposition that December 26 of 2003 was a legal holiday, does not say that the President has declared December 26 to be a holiday, the plaintiffs' Rule 59(e) motion was untimely. In
support they cite our decision in Latham v. Dominick's Finer Foods, 149 F.3d 673 (7th Cir.1998). The deadline for filing a Rule 59(e) motion in that case was December 26, 1997, also a Thursday. But the court was closed that day, and the closure order said that motions
due that day didn't have to be filed until the following Monday. We held that because the plaintiff couldn't have filed on December 26, he was excused. But not because December 26
was a legal holiday; for we reasoned that while President Clinton had ordered the executive branch of the federal government closed that day, he had not declared a legal holiday; nor

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had he ordered the federal courts closed. The closure order had come from the chief judge of
the district court, who of course is not the President and did not purport to be declaring a legal holiday and anyway lacked the authority to do so. Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 9 (1st Cir.2004). We analogized the closure order to an order closing the court because of bad weather, noting that Rule 6(a) excludes the last day to file if
"weather or other conditions have made the office of the clerk of the district court inaccessible" on that day. Because of the last-day limitation in this rule on which we were basing our decision by analogy, we said that our decision had no application to a case in
which the clerk is inaccessible on an intermediate day. Whether the appeal in this case flies or falls, therefore, depends entirely on whether December 26, 2003, was a legal holiday.

Our statement in Latham that the corresponding day in 1997 was not a legal holiday was a

dictum — for whether that day was or was not a holiday, the appeal was timely by virtue of

the chief judge's closure order — and so does not bind us in this case. The dictum was

rejected in Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1098-99

(D.C.Cir.2003). At issue in that case was an earlier executive order by President Bush

materially identical to the one at issue in this case, as well as to President Clinton's 1997

order. The court in Mashpee thought the fact that the executive order expressly incorporated

provisions governing compensation of federal employees on legal holidays was a sufficient

indication that the President had declared December 26 a holiday. We had not considered

this possible interpretation of Clinton's (=Bush's) executive order in Latham. We own to

finding the D.C. Circuit's interpretation persuasive. It is true that that court bolstered its

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analysis by pointing out that one of the litigants was a *891 federal agency, which would be

closed on December 26; but the court did not make that observation the linchpin of its

analysis. It would have been odd had it done so; it would have meant that the opposing

litigants in the case had different filing deadlines, since the plaintiff was not a federal agency.

Mashpee is supported by the natural understanding of what the President is doing when he closes the executive branch on the day after Christmas: he is extending the Christmas
holiday. It would be positively Grinch-like for the President to say, "you can have December 26 off, but don't think it's a legal holiday." It would mean, among other things, that federal
employees who had to work that day (such as air controllers) would not receive the double pay that they are entitled to for working on a holiday. 5 U.S.C. § 5546(b). Realistically,
moreover, when Christmas falls on a Thursday it is pretty hard to get employees to put in a serious day's work on Friday. This is true for the private sector as well as for the public sector.
So that's a lost day, and with the time for preparing and filing a Rule 59(e) motion already
compressed to only 10 days, it makes practical sense to interpret the Presidential closure order as declaring a legal holiday.

The clincher is the superior simplicity of a rule that says that when the President closes the
government for celebratory or commemorative reasons (see, e.g., Executive Order 13343, 69 Fed.Reg. 32,245 (June 6, 2004), closing the government for a day of commemoration of
President Reagan), rather than because of a budgetary crisis (see "Federal Workers Bear
Brunt of Budget Shutdown," Nov. 14, 1995 http://www.cnn.com/US/9511/debt_limit/1113/employees/index.html), or for a snow emergency, terrorist act, or some other force majeure, the presumption is that he has declared a legal holiday. The presumption has not been rebutted.

So we can turn to the merits of the appeal. Had the plaintiffs been convicted, their challenge to the conditions of their confinement would be governed by the "cruel and unusual
punishments" clause of the Eighth Amendment, which has been interpreted to require proof that the convicts' custodians were deliberately indifferent to a serious hazard created by those conditions. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Riccardo v. Rausch, 375 F.3d 521, 525-26 (7th Cir.2004). These plaintiffs, however, have not been convicted of a crime. It would be odd, to say the least, if by reason of not having been convicted they had fewer rights than convicts; and of course they don't. The "liberty" that the
due process clauses secure against deprivation without due process of law includes not only
the right to be free, which pretrial detainees do not have, but also the right to bodily integrity, which they do. Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Doe v. Taylor Independent School District, 15 F.3d 443, 450-52 (5th Cir.1994) (en banc). They don't need the Eighth Amendment to be able to complain about conditions that would violate their Eighth Amendment rights if they were convicted criminals rather than
pretrial detainees.

In the ruling case of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the

Supreme Court said that the proper question to guide determination of the constitutionality of

restrictive conditions in pretrial detention was "whether those conditions amount to

892

punishment of the detainee." Id. at 535, 99 S.Ct. 1861 (footnote omitted). We *892 doubt that

the Court meant that the plaintiff has to show that the jail officials meant to punish him,

though that is the construction placed on the decision by the dissenting Justices. Id. at 565,

584-86, 99 S.Ct. 1861. The majority did say that "loading a detainee with chains and shackles

and throwing him in a dungeon may ensure his presence at trial and preserve the security of

the institution. But it would be difficult to conceive of a situation where conditions so harsh,

employed to achieve objectives that could be accomplished by so many alternative and less

harsh methods, would not support a conclusion that the purpose for which they were imposed

was to punish." Id. at 539 n. 20, 99 S.Ct. 1861. But why proof of a punitive purpose should be

necessary is unclear. The jail officials might simply be preoccupied with making sure that

none of the inmates caused trouble in the jail, or escaped. Punishment is not the only

possible motive for brutal treatment. But whatever the motive is, if the brutal treatment is

gratuitous, due process in its substantive sense has been violated. May v. Sheahan, 226 F.3d

876, 884 (7th Cir.2000); Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir.1999); Lyons v. Powell,

838 F.2d 28, 30-31 (1st Cir.1988) (per curiam); cf. Demery v. Arpaio, 378 F.3d 1020, 1029-32

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(9th Cir.2004).

"Punishment" in such a case is really just a name for unreasonably harsh treatment meted out to inmates who have not yet been convicted of any crime. As we said in May v. Sheahan, supra, 226 F.3d at 884, another case about the conditions in which inmates are held in the Cook County Jail, "the use of bodily restraints constitutes punishment in the constitutional sense if their use is not rationally related to a legitimate non-punitive government purpose or they appear excessive in relation to the purpose they allegedly serve." See also Block v. Rutherford, 468 U.S. 576, 583-85, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984); Bell v. Wolfish, supra, 441 U.S at 537-39, 99 S.Ct. 1861; Zarnes v. Rhodes, 64 F.3d 285, 291 (7th Cir.1995); Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 317-18 (1st Cir.1995). Even Eighth Amendment cases no longer require proof of a punitive purpose; callous indifference will do, Farmer v. Brennan, supra, 511 U.S. at 834-36, 114 S.Ct. 1970; Haley v. Gross, 86 F.3d 630, 641-42 (7th Cir.1996); Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004); Phelps v. Kapnolas, 308 F.3d 180, 185-86 (2d Cir.2002) (per curiam), though there is no intent to augment that punishment.

Another way to interpret the cases, however, is that they understand the Eighth Amendment's term cruel and unusual "punishments" to refer to the character of the act rather than to the
intention in inflicting it. If the act involves the gratuitous infliction of pain or suffering it is
deemed to be punishment, and as long as the act was intended it is a violation of the prisoner's constitutional right even if the act was not intended as punishment.

On either understanding of the Eighth Amendment's use of the word "punishments," the

standards applicable to complaints by convicts and by pretrial detainees about unsafe

conditions of confinement merge. See, e.g., Zentmyer v. Kendall County, 220 F.3d 805, 810

(7th Cir.2000); Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir.2002); Gibbs v. Grimmette,

254 F.3d 545, 548-49 (5th Cir.2001); Barrie v. Grand County, 119 F.3d 862, 868-69 (10th

Cir.1997). Although some cases prefer to say that the rights of pretrial detainees are "at least"

as great as those of convicts, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 849-50,

893

118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Washington v. LaPorte County Sheriff's *893

Department, 306 F.3d 515, 517 (7th Cir.2002); Jackson v. Illinois Medi-Car, Inc., 300 F.3d

760, 764 (7th Cir.2002); Payne for Hicks v. Churchich, 161 F.3d 1030, 1040 (7th Cir.1998),

they do not indicate what greater rights the pretrial detainees might have. They do have

some: they cannot be punished (except for infractions of jail rules or other offenses committed

in the jail, Rapier v. Harris, supra, 172 F.3d at 1003; Collazo-Leon v. U.S. Bureau of Prisons,

supra, 51 F.3d at 318-19) even in a nonbrutal fashion, because lawful punishment requires a

conviction. Id. But when the issue is whether brutal treatment should be assimilated to

punishment, the interests of the prisoner is the same whether he is a convict or a pretrial

detainee. In either case he (in this case she) has an interest in being free from gratuitously

severe restraints and hazards, while the detention facility has an interest in protecting the

safety of inmates and guards and preventing escapes.

We have now to apply the standard. Our only source of facts is the complaint. The following are its essential allegations. The jail, or at least the part where the women are held, is divided
into a number of tiers. Each tier contains cells, each of which houses two inmates. Each tier also has a day room where the inmates can socialize and watch television, and adjacent to
the day room are shower stalls. The tiers are separated by locked doors, at each of which a
guard is stationed. From his station he can see what is going on in the day room but cannot see inside the cells. Once a month the jail is locked down, meaning that all the inmates are
confined to their cells to enable the guards to search the entire facility for weapons and contraband. The lockdown lasts from Friday afternoon to Sunday afternoon — 48 to 50 hours
— and during that entire time the inmates are confined to their cells. They are fed, but they are not under the observation, or even within hailing distance, of the guards, who are busy
with the searches. If during this protracted period of sequestration two inmates sharing a cell get into a fight, as they not infrequently do, or experience some other crisis, such as giving
birth, they often can't get the attention of a guard, and injuries, sometimes serious, result. The
custodian of the jail, Sheriff Sheahan, is well aware of all this. (We emphasize that at this stage in the litigation these are merely allegations and not proven facts.)

These consequences might not condemn the administration of the jail if there were no other
way to conduct the lockdown. But given the allegation that the tiers are separated by a locked
door, it is unclear why, when the guards have finished searching one tier, which apparently takes less than an hour, they cannot let the inmates of that tier out of their cells so that they
can enter the day room and thus be in sight and hearing of a guard and therefore be able to summon him should trouble erupt. Of course while the tier is being searched all the inmates
in that tier have to be locked in their cells. If they were roaming around, an inmate whose cell hadn't been searched yet could slip a weapon or contraband to an inmate whose cell had
been searched and was now in the day room with access to the grates in the doors of all the other cells. But unless inmates can go between tiers, once a tier has been searched there is
no apparent reason why the inmates in that tier can't be let out of their cells. There may well
be a reason of which we're unaware, but the case is in the pleading stage and we have no evidence that would enable us to identify and evaluate such a reason.

The defendants point us to a paragraph in the complaint which states that during a lockdown

894

one of the plaintiffs was attacked by her cellmate and yelled for help but "it *894 took

approximately 10 minutes for an inmate worker to get the attention of a correctional officer."

The defendants argue that the quoted passage pleads the plaintiffs out of court by alleging

that an inmate (the "inmate worker") had managed to enter the tier, thus showing that there is

traffic between tiers and it is therefore necessary for the entire jail to be locked down. The

argument fails. The incident occurred during a lockdown, when according to the defendants

themselves all the inmates are locked in their cells, so what was this "inmate worker" doing?

There are a number of possible answers — all consistent with the plaintiffs' claim. Some

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inmates may be trusted. Some, who may not be trusted, may nevertheless be needed to work
during lockdowns and maybe they are searched when they pass from a searched tier to a tier that hasn't been searched yet. Or maybe the plaintiff's tier had been searched and inmate
workers are allowed into a tier as soon as the search of that tier has been completed.

The district judge misunderstood the plaintiffs' claim, though forgivably since it is not well
articulated. He thought they were arguing only "that the searches could be performed faster and that detainees could then be immediately released from their cells." Were that their
argument, it could well be found not to state a claim, as it would be ridiculous for judges to be placing time limits on the search of a jail cell. Cf. Lunsford v. Bennett, 17 F.3d 1574, 1581-82 (7th Cir.1994); Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir.1994). But the heart of the plaintiffs' claim, with enough merit to withstand a motion to dismiss, is that the jail is
subjecting them to a risk of serious harm by an unreasonably protracted detention of them out
of sight and hearing of guards.

So the judgment must be reversed. We offer several observations for guidance on remand. First, the judge dismissed the suit without ruling on whether, as the plaintiffs requested, the
case should be certified as a class action. That should be the first order of business on remand. Fed.R.Civ.P. 23(c)(1)(A); cf. Nelson v. Murphy, 44 F.3d 497, 500 (7th Cir.1995); Koch v. Stanard, 962 F.2d 605, 607 (7th Cir.1992); Watkins v. Blinzinger, 789 F.2d 474, 475 n. 3 (7th Cir.1986). Second, the judge should define the issues carefully to comport with the analysis in this opinion, in effect pruning the overlong complaint of untenable charges. Third,
to the extent that damages as well as injunctive relief are sought, the judge should promptly address issues of immunity and municipal liability.

One loose end remains to be tied up. The defendants object to the plaintiffs' having referred

in their reply brief to the report of a grand jury investigation into abuses at the Cook County

Jail. To present new evidence at the appeal stage is improper and in appropriate cases

sanctionable. Youker v. Schoenenberger, 22 F.3d 163, 169 (7th Cir.1994). But a party is free

to cite academic or other studies that may be factual in nature, provided the facts are

"legislative" rather than "adjudicative" in character, that is, provided they are facts that help a

court formulate a rule, as distinct from facts specific to the case that help the trier of fact

decide whether the rule applies to the case. Indiana Harbor Belt R.R. v. American Cyanamid

Co., 916 F.2d 1174, 1182 (7th Cir.1990); Daggett v. Commission on Governmental Ethics &

Election Practices, 172 F.3d 104, 112 (1st Cir.1999); United States v. Hernandez-Fundora, 58

F.3d 802, 810-12 (2d Cir.1995). The report of an investigation could be either. But the

plaintiffs have made clear that they want to use the grand jury report as a source of

adjudicative facts. They argue that the findings in it are evidence, and appeal to the public-

895

records exception to the hearsay rule, Fed.R.Evid. 803(8)(c), *895 which is pertinent only

when hearsay is sought to be used as evidence, rather than merely as background; only

proof of adjudicative facts is governed by the rules of evidence.

But in objecting to what the plaintiffs have done, the defendants overlook the procedural
posture. This is an appeal from the grant of a motion to dismiss for failure to state a claim, a grant that is proper only if there is no state of facts consistent with the complaint that would
entitle the plaintiffs to relief. In submitting the report of the grand jury investigation, the plaintiffs were merely indicating that, yes, there may well be facts they could prove that would
show they had a claim. There was no impropriety, e.g., Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir.2004); Trevino v. Union Pacific R.R., 916 F.2d 1230, 1239 (7th Cir.1990); Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 912 (7th Cir.1985), and so there is no occasion for the imposition of sanctions.

REVERSED AND REMANDED.

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