Case: 1:07-cv-02393 Document #: 1 Filed: 05/01/07 Page 1 of 3 PageID #:1

KC FILED

IN THE UNITED STATES DISTRICT COURT MAY 0 I 2007

FOR THE NORTHERN DISTRICT OF ILLINOIS MICHAEl W. DOBBINS

EASTERN DIVISION

Ob~RK, ti,R, !lll'lTRIQT !J9YRT

ROBERT HARPER, Plaintiff,
-vs-
SHERIFF OF COOK COUNTY,
and COOK COUNTY, ILLINOIS
Defendants.

)

)

)

) No. Q!f

3

)

) (jury demand)

07CV2393 JUDGE DARRAH MAGISTRATE JUDGE SCHENKIER

COMPLAINT

Plaintiff, by counsel, alleges as follows:
1. This is a civil action arising under 42 U.S.C. §1983. The jurisdiction of this Court is conferred by 28 U.S.C. §1343.
2. Plaintiffs Robert Harper is a resident of the Northern District of Illinois.
3. Defendants are the Sheriff of Cook County and Cook County, Illinois. The Sheriff is sued in his official capacity only; the County is joined pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947 (7th Cir. 2003).
4. On or about September 30, 2005, plaintiff Robert Harper was taken to the Criminal Courts Building at 2650 South California Avenue following his arrest without a warrant by a Chicago police officer.

5. At the criminal courts building, plaintiff appeared by remote viewing ("TV court"), beforce a judge who set bond and ordered that plaintiff be held in the custody of defendant Sheriff pending the posting of bond.

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6. Members of plaintiff's family attended the bond hearing and immediately sought to post cash bond to obtain plaintiff's enlargement from custody.
7. In accordance with a policy and/or practice of defendant Sheriff that is so permanent and well-settled that it constitutes a custom or usage with the force of law, plaintiff was required to submit to the processing required by the Sheriff's policies of a person being admitted to the Cook County Jail while plaintiff's family members posted cash bond. This processing began with placement into an overcrowded and unsanitary animal cage, and included a chest x-ray, the non-consensual insertion of a swab into plaintiff's penis, the non-consensual taking of blood, and a strip search which was conducted in a manner calculated to embarrass and humiliate.
8. It has at all times relevant been the practice of the Sheriff of Cook County to excuse from this processing persons of wealth, clout, or political influence who, after bond has been set at "TV court," are ready, willing, and able to post cash bond.
9. As the direct and proximate result of the above referred policy, plaintiff, and all others persons subjected to the above referred policy, was embarrassed, humiliated, unreasonably deprived of his liberty, incured pain and suffering, and was deprived of rights secured by the Fourth and Fourteenth Amendments.
10. Plaintiffs bring this action for a class of all persons who, following his or her arrest without a warrant, appeared on or after May 1, 2005 before a judge at "TV court" and, while persons acting on behalf of the arrestee sought to post cash bond, was required to submit to the processing required by the Sheriff's policies of a person being admitted to the Cook County Jail. The proposed class satisfies each of the requirements of Rule

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23(a) of the Federal Rules of Civil Procedure. The relief sought is appropriate damages for each person subjected to the policy and class certification is appropriate under Rules 23(b)(3).
II. Plaintiff hereby demands trial by jury.
Wherefore plaintiff requests that judgment be entered in his favor in an amount in excess of one hundred thousand dollars, that judgment be entered in favor of the proposed class, and that the Court grant such relief for each member of the proposed class as may be appropriate.
hi Kmif2i!=---
KENNETH N. FLAXMAN ARDC No. 830399 200 South Michigan Avenue Suite 1340 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)
THOMAS G. MORRISSEY 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900 (phone) (773) 239-0387 (fax) tgmlaw@ ameritech.net
attorneys for plaintiff

 
 Case: 1:07-cv-02393 Document #: 43 Filed: 05/29/08 Page 1 of 7 PageID #:492

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT HARPER, Plaintiff,
v.
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS
Defendants.

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)

)

No. 07 CV 2393

)

)

Judge John W. Darrah

)

)

)

)

)

MEMORANDUM OPINION AND ORDER Plaintiff, Robert Harper, filed a class-action suit against Defendants, Sheriff of Cook County and Cook County, Illinois ("County Defendants"), alleging that the Defendant Sheriff violated his Fourth and Fourteenth Amendment rights by requiring him to participate in certain intake procedures at the Cook County Jail. Presently pending before the Court is Plaintiffs Motion to Certify the Case as a Class Action.
BACKGROUND A reading of Plaintiffs Complaint supports the following summary of the alleged conduct of the parties. On or about September 30, 2005, following his arrest, Harper appeared in Central Bond Court. Bond was set by the presiding judge; and Harper was ordered to be held in the Sheriffs custody, pending the posting of bond. Members of Harper's family were present at the bond hearing and immediately sought to post cash bond while Harper underwent the intake procedures at Cook County Jail. These procedures included Harper's placement in a cell, followed by a chest x-ray, the non-consensual insertion of a swab into the plaintiffs penis, the non-consensual

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taking of blood, and a strip search conducted in a humiliating manner. It is the practice of the Defendant Sheriff to excuse from these procedures persons of wealth, clout, or political influence who, after bond has been set, are ready, willing, and able to post cash bond. As a result of being subjected to the Defendant Sheriffs intake procedures, Harper, along with others in his putative class, are embarrassed and humiliated and incurred pain and suffering.
ANALYSIS Allegations made in support of class certification are considered true. Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993). As a general matter, the court does not examine the merits of the case. Retired Chicago Police Ass 'n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (Retired Police). However, a court "may look beyond the pleadings to determine whether the requirements of Rule 23 have been satisfied." Dhamer v. Bristol-Myers Squibb Co., 183 F.R.D. 520, 529-30 (N.D. Ill 1998) (citing Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996)). The party seeking certification bears the burden of establishing that class certification is proper. See Trull v. Plaza Assoc., 1998 WL578173 (N.D. Ill. Sept. 3, 1998). To receive class certification, a party must satisfy all four elements of Rule 23(a), which include: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). The party must also satisfy at least one of the three provisions under Rule 23(b). Plaintiff seeks to certify the following class:
All persons processed into the Cook County Jail on and after May 2, 2005, while that person, or someone acting on his (or her) behalf, sought to post cash bond.

2

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Numerosity Rule 23(a)(l) requires that the class be so numerous that joinder of all the members is impracticable. Fed. R. Civ. P. 23(a)(l). Plaintiff need not demonstrate the exact number of class members so long as a conclusion is apparent from good-faith estimates (Peterson v. H & R Block
Tax Servs., 174 F.R.D. 78, 81 (N.D. Til. 1997)); and the court is entitled to make "common sense
assumptions" in order to support a finding of numerosity (Grossman v. Waste Management, Inc., 100 F.R.D. 781,785 (N.D. Ill. 1984)).
Plaintiff projects the number of potential class members to be over 5,700 persons, based on an average of five persons' being released on bail the same day that they were processed into the jail as calculated by 3,558 males' being released on bail the same day that they were processed into the jail for the time period of May 2, 2005 through January 25, 2007.
Defendants argue that Plaintiffs potential class is merely speculative because some individuals may have been released for other reasons, and some of the individuals may be members of two other class actions brought against the same Defendants. 1 In response, Plaintiff has provided the sworn declarations of fifteen persons who would be included in the proposed class. Plaintiff has sufficiently demonstrated that the number of plaintiffs would be so numerous that joinder of all the members is impracticable.
1Jackson v. Sherif!ofCook County, 06 C 493, class of"All male prisoners at the Cook County Jail who, on or after January 27, 2004, were subjected to the non-consensual insertion of a swab into his penis as part of his admission to the jail." Young v. County ofCook, 06 C 552, two classes defined as: "(I) all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004; and (2) all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a body cavity search as new detainees at the Cook County Jail on or after January 30, 2004."
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Commonality and Typicality Commonality exists if the class members share common questions of law or fact. The requirement is usually satisfied when a common nucleus of operative facts unites a class. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (Rosario). The presence of some factual variations among the class members does not defeat commonality, so long as there is at least one question of law or fact common to the class. Rosario, F.2d at 1017. The typicality requirement of Rule 23(a)(3) is closely related to the commonality requirement of Rule 23(a)(2). Ruiz v. Stewart Associates, Inc., 171 F.R.D. 238, 242 (N.D. Ill. 1997). A plaintiffs claim is typical if it arises from the same event or practice or course of action that gives rise to the claims of other class members and if his or her claims are based on the same legal theory. Rosario, 963 F.2d at 1018. Plaintiff argues that the class claims share common questions of fact and law: (1) whether there is any legitimate need to assign a jail identification number to any arrestee who is ready, willing, and able (either individually or through a friend or family) to post bond; (2) whether Defendants refuse to accept cash bond until late in the afternoon, resulting in several hours of detention for an arrestee that is ready, willing, and able to post cash bond; (3) whether persons with wealth, clout, or political influence are allowed to immediately post bond with the assignment of a jail identification number and without being processed into the jail; (4) whether there is a lawful justification for the lengthy continued detention after bond has been posted; (5) whether the Defendants apply or enforce the policy alleged in the Complaint and does that policy result in a deprivation of rights secured by the Fourth Amendment; and
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(6) whether the Defendants apply a different policy to persons of wealth, clout, or political influence and does that disparate treatment amount to the denial of equal protection under the law.
Defendants' arguments present questions of fact and law that go to the merits regarding the elements of commonality and typicality. A court does not examine the merits of a claim
when determining if certification is proper. See Retired Police, 7 F.3d at 598.
Defendants also argue that typicality does not exist because of particular facts as to each detainee - for example, the type of bond that was set, the differences in the intake process for female detainees, and possible defenses as to each member's claim. Defendants' argument is not permissive because the proposed class includes only those individuals subject to the claimed offensive procedures while remaining in custody although able to post a cash bond.
Accordingly, Plaintiff has satisfied both the commonality and typicality requirements. See
Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) ("Common nuclei of fact are typically manifest where . . . the defendants have engaged in standardized conduct towards members of the proposed class....").
Adequacy ofRepresentation The class representatives must "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). In determining adequacy of class representation, the court considers whether {I) any conflicts of interest exist between the named plaintiffs and the class members and (2) the named plaintiffs' counsel will adequately protect the interests of the class. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 58 (N.D. Ill. 1996).
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'
Defendants argue that Harper is not an adequate representative party because he cannot state an actionable claim. The Court has previously held that Plaintiff sufficiently pled a cause of action, and the Court will not address the merits of Plaintiffs specific claim at this time. Defendants do not challenge the adequacy of class counsel, and class counsel has extensive experience litigating class actions.
Rule 23(b)(l)(3) Plaintiff seeks class certification under Rule 23(b)(l )(3). Certification under Rule 23(b)(l)(3) is appropriate if "questions of law or fact common to class members predominate over any questions affecting only individual members" and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(J)(3). As discussed above, Plaintiff has established common questions of law and fact as to the class. Defendants again argue that individual issues predominate over any common questions of law or fact- for example, the detainee's history, the amount of bond, and whether the individual proceeded through receiving procedures. Defendants have not demonstrated that these issues are material to defeat the certification of the proposed class. The individual issues that Defendants argue are predominant are not material as to the common questions of whether there is any legitimate need to assign a jail identification to any arresstee who is ready, willing and able to post cash bond or whether Defendants permit persons of wealth, clout or political influence to post bond without being assigned a jail identification number and without being processed into the jail.
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' '
Defendants also argue that certifying a class action in the instant case is not a superior method of adjudication because the instant class would conflict with and overlap with other class
actions. However, Jackson, 06 C 493, which was recently settled, involved sexual-transmitted disease testing of males processed into the jail; and Young, 06 C 552, which is presently awaiting
trial, challenged various aspects of the jail's strip search policies and do not resolve the claims asserted here.
CONCLUSION For the foregoing reasons, the Plaintiffs Motion to CertifY Case as a Class Action is granted. However, Plaintiffs proposed class definition is too broad, appearing to include individuals that do not fall within the claims set forth in Plaintiffs Complaint - persons who where subject to, and required to submit to, the intake procedures of Cook County Jail on or after May 2, 2005, while that person, or someone acting on his or her behalf, was willing and able to post cash bond. Accordingly, Plaintiff is to file an amended class definition within fourteen days of this order. A status hearing is scheduled for June 18, 2008, at 9:00a.m.
Unit d States District Court Judge '-
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In the
United States Court of Appeals
For the Seventh Circuit

No. 08-3413 ROBERT HARPER,
v.
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS,

Plaintiff-Appellee, Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-02393—John W. Darrah, Judge.

ARGUED APRIL 6, 2009—DECIDED SEPTEMBER 8, 2009

Before BAUER, SYKES and TINDER, Circuit Judges.
BAUER, Circuit Judge. This case involves a confused and confusing class action lawsuit that we put to rest today. Robert Harper sued the Sheriff of Cook County, claiming that when new detainees are remanded to the Sheriff’s custody after a probable cause hearing, they are unconstitutionally required to undergo certain intake procedures at the Cook County Jail before being

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No. 08-3413

allowed to leave on bond. The district court certified Harper’s class, a decision that the Sheriff appeals. We agree with the Sheriff that this is not an appropriate case for class disposition and vacate the decision of the district court granting class certification.

I. BACKGROUND
Harper was arrested by a Chicago police officer on the evening of September 29, 2005. The next day, he was brought before a judge around 1:00 p.m. for a probable cause hearing. The judge found probable cause, set bond at $15,000, and remanded Harper to the Sheriff’s custody. Harper claims that his wife attended the probable cause hearing and immediately sought to post cash bond, but was not permitted to post bond until sometime after 4:00 p.m. Harper was released from the Sheriff’s custody around 11:00 p.m.
When a detainee returns to the Cook County Jail after a probable cause hearing, he is placed in a bull pen and begins to be processed into the jail. This involves assigning the detainee an identification number, taking his picture and fingerprints, collecting any property carried by the detainee, conducting a personal history interview, performing a psychiatric screening, assigning the detainee to a division within the jail, conducting a medical examination, and a strip search.
Family members or friends who want to post bond for a detainee do so, not with the Sheriff, but with the Office of the Clerk of the Circuit Court of Cook County. The

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Sheriff’s policy directs that “[i]nmates who have their bond posted while going through the intake process are moved ahead of the other inmates in order to speed up their release . . . . In some instances, the psychiatric interview and the medical examination are eliminated.” Before releasing a detainee, the Sheriff takes a number of steps to ensure that he is releasing the right person. This process includes checking the detainee’s photograph, comparing the detainee’s fingerprints with those taken during the intake procedure, and requiring the detainee to provide answers to personal questions that were asked during the prior personal history interview that only the detainee should know.
Harper brought this action to challenge his detention and treatment in the jail. In his complaint, Harper explained that he “was required to submit to the processing required by the Sheriff’s policies of a person being admitted to the Cook County Jail while plaintiff’s family members posted cash bond.” He went on to describe the processing, which “began with placement into an overcrowded and unsanitary animal cage, and include a chest x-ray, the non-consensual insertion of a swab into plaintiff’s penis [to test for STDs], the nonconsensual taking of blood, and a strip search which was conducted in a manner calculated to embarrass and humiliate.”
In his motion to certify the case as a class action, Harper sought to represent “[a]ll persons who were processed into the Cook County Jail on and after May 2, 2005 while persons acting on behalf of the arrestee

CCaassee: :1C0:a08s7-e3-c:4v01-830-233491D33oDcoucmDueomncetu:nm0t e0#n7: t16:15224F9i4le6d1F:51ile1d/1:F30/i9l0e/90d8:P/1a21g0/e01924/2o0f01P91agPeasPg:ea1IgD1es#::51512

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No. 08-3413

sought to post cash bond.” He later changed his proposed class definition to “[a]ll persons processed into the Cook County Jail on and after May 2, 2005 while that person, or someone acting on his (or her) behalf, sought to post cash bond.” The district court granted Harper’s motion to certify the case as a class action, but found that Harper’s proposed class definition was too broad and ordered him to provide a new class definition within fourteen days. We granted the Sheriff’s petition to appeal from the order granting class certification according to Federal Rule of Civil Procedure 23(f).

II. DISCUSSION
To certify a class, a district court must find that each requirement of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) is satisfied as well as one subsection of Rule 23(b). “Failure to meet any of the Rule’s requirements precludes class certification.” Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008). In this case, Harper claimed, and the district court agreed, that his class action satisfied Rule 23(a) and Rule 23(b)(3) (predominance of common issues and superiority of the class action format). On appeal, the Sheriff claims that none of the Rule 23(a) prerequisites for class certification were met and that Harper’s proposed class also failed to meet the requirements of Rule 23(b)(3), so the district court should have denied class certification. We review a district court’s decision to certify a class for an abuse of discretion. Arreola, 546 F.3d at 794.

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A. Jurisdiction
Before getting to the substance of this case, we address a jurisdictional issue. Rule 23(f) states that “[a] court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed . . . within 10 days after the order is entered.” The Sheriff followed this procedure and we permitted the appeal. However, Harper claims that the district court’s order was not the appealable order contemplated by Rule 23(f) because it did not define the class as required by Rule 23(c)(1)(B), and that, consequently, we do not have jurisdiction to consider the Sheriff’s appeal. Harper is correct that the district court did not define the class as it should have, but that does not deprive us of jurisdiction.
There is no doubt that the district court certified the class. Its order states: “Plaintiff’s Motion to Certify Case as a Class Action is granted.” This allowed the Sheriff to seek permission to file an interlocutory appeal. Harper argues that the Sheriff was required to wait until a new class definition was submitted. But Harper was charged with that responsibility and the Sheriff had only ten days in which to seek permission to appeal. The Sheriff waited as long as he could and acted properly.1

1 The Sheriff submitted his Rule 23(f) request to file an interlocutory appeal on the same day that Harper’s amended class definition was due. Because Rule 6 directs that weekends are not counted when a time period is less than eleven days,
(continued...)

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Furthermore, the propriety of resolving Harper’s proposed class issues through the class action format, which goes to the heart of this appeal, is not dependent on the subtleties of the class definition.

B. Class Certification
Next, we must decipher what Harper is complaining about in order to determine whether his claim is suitable for disposition through the class action format. As the Sheriff notes, Harper’s claim has been a moving target throughout this litigation. Harper’s actual complaint makes it seem that he is seeking to challenge the specific intake procedures utilized by the Sheriff such as the strip search and STD test. Harper’s deposition testimony confirms that he was offended by these two procedures. But Harper assured us multiple times at oral argument that this case is not about searching and swabbing, and we take him at his word. If these were his claims, this case would be duplicative of two other class actions challenging these procedures at the Cook County Jail. Young v. County of Cook, 06 C 552 (strip search); Jackson v. Sheriff of Cook County, 06 C 493 (STD testing).2

1 (...continued) ten days for the Sheriff in this case was the same as fourteen days for Harper.
2 The complaint also mentions a chest x-ray and blood draw as part of the processing procedures. But Harper’s brief acknowledges that he had “no problem” with these two procedures.

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Failing to take issue with any particular intake procedure, Harper is left with a claim that the Sheriff is unconstitutionally holding detainees after bond has been posted.3 But the constitutionality of this detention depends on whether the length of the delay between the time the Sheriff was notified that bond had been posted and the time that the detainee was released was reasonable in any given case. See Chortek v. City of Milwaukee, 356 F.3d 740, 747 (7th Cir. 2004) (delay in processing is actionable if unreasonable). That is an individual issue that will depend on how long each detainee was held after bond was posted and what justifications there might be for the delay on that particular day or for that particular detainee—the time of day, whether the jail was processing an unusually large number of detainees at that time, whether other events occurring at the jail legitimately slowed processing times, whether the detainee’s lack of cooperation delayed processing, etc. See Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988) (what is a reasonable time for detaining prisoner after grounds for detention have ceased depends on facts

3 This gives Harper the benefit of the doubt. In some places, his brief claims that detainees should not be processed into the jail when a family member is ready, willing, and able to post bond. But bond is posted at the Clerk’s office; Harper does not explain how the Sheriff is to blame for any delay a family member might experience in being allowed to actually post bond with the Clerk and the Sheriff cannot be expected to forego processing based on a detainee’s assurances that bond will be posted soon.

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presented in each case). Liability, to say nothing of damages, would need to be determined on an individual basis. Thus, common issues do not predominate over individual issues, making this case inappropriate for class disposition. Fed. R. Civ. P. 23(b)(3).4
Harper counters that a common issue predominates: whether it is reasonable to assign a jail identification number to a detainee before allowing him to be released on bond. But claiming that an issue predominates does not make it so. Harper is trying to focus the class certification discussion around an issue that is not central to the litigation. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 624-25 (1997) (basic fact that all members of proposed class were exposed to asbestos was insufficient to satisfy predominance requirement where greater number of significant individual issues existed); see also Hyderi v. Washington Mut. Bank, FA,

4 Harper also attempts to bring this action on behalf of individuals who were required to undergo certain processing procedures before being allowed to post bond themselves. It is questionable as to whether Harper can represent these individuals since he did not attempt to post bond himself and so his claim is likely not typical of that portion of the purported class that posted bond themselves. See Fed. R. Civ. P. 23(a)(3). Regardless of this typicality concern, the reasonableness of the delay between a detainee informing the Sheriff of his desire to post bond and the detainee’s release remains an individual issue to be determined according to the length of the delay and the conditions and exigencies of the jail as they existed on that particular day.

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235 F.R.D. 390, 403 (N.D. Ill. 2006) (“A putative class representative cannot satisfy the predominance requirement by defining the common issue narrowly and leaving all of the individual issues for follow-on proceedings, especially when the non-common issues are necessarily intertwined with the common issues and resolution of the common issues would not materially advance the litigation.”). The fact that the Sheriff assigned Harper an identification number cannot be what caused Harper the embarrassment, humiliation, unreasonable deprivation of liberty, and pain and suffering described in his complaint.
If assigning identification numbers is the predominant issue in this case, then Harper would be arguing that it is unconstitutional to give detainees, who have been remanded to the custody of the Sheriff to keep until trial or until bond is posted, an identification number, regardless of the amount of time it takes to assign the number and ultimately release the detainee. The Sheriff processes approximately 300 new detainees into the jail every day and he must maintain some system of keeping track of who has been committed to, and released from, his custody. There is nothing unconstitutional about assigning an identification number to a detainee who has been remanded to the custody of the Sheriff, unless it takes an unreasonable amount of time or is done in some unreasonable manner. And, as we just stated, those are individual issues.
We have one last matter to resolve. Harper makes an equal protection claim that individuals with wealth,

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No. 08-3413

clout, or political influence are not required to undergo the Sheriff’s intake procedures, but are allowed to immediately post bond (individually or through a family member) and be released from the Sheriff’s custody. Harper admitted that he was not treated differently from anyone he observed in the jail; to support his equal protection claim, Harper obtained an affidavit from a police officer who was arrested and claimed that after his hearing he was not placed into a bull pen or processed into the jail, but was released immediately after the hearing when his wife posted bond. The officer claimed that this is common treatment for persons with clout.
It is easy to understand why police officers would not be placed in a bull pen with other detainees for the safety of the officers. The Sheriff’s written policy states that one reason to separate a detainee is his need for protective custody. But either way, class action disposition is not a superior method of litigating this claim. See Fed. R. Civ. P. 23(b)(3). Harper is not interested in a large damage award (he claimed at oral argument that he would have brought this case as a Rule 23(b)(2) action for an injunction if he had standing to do so), and his desire to prove the existence and illegality of the Sheriff’s discriminatory practice can be satisfied in an individual suit without the management issues of a class action. It would be better to litigate this claim with Harper’s other individual claims.

CCasaes:e1:C:00a87s--e3c:4v01-0832-34913D3DocoucmuDmeoncetun:mt0#e0:n76t1:5122F49il4e6d1:F51il1e/d1:3F0/0i9le9/0dP8: a/12g10e/011921/2o0f0P19a1gPeasPg:ae1gI1Des#: :15159

No. 08-3413

11

III. CONCLUSION
For the reasons discussed above, we VACATE the district court’s certification of Harper’s class and REMAND for resolution of Harper’s individual claims.

9-8-09

 
 Case: 1:07-cv-02393 Document #: 72 Filed: 08/09/10 Page 1 of 2 PageID #:567

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

ROBERT HARPER, Plaintiff,
v. SHERIFF OF COOK COUNTY, et al.,
Defendants.

)

)

No. 07 C 2393

)

)

Judge John W. Darrah

)

)

)

)

)

STIPULATION OF DISMISSAL
IT IS HEREBY STIPULATED AND AGREED by and between all parties to this lawsuit, Plaintiff Robert Harper and Defendant, Sheriff of Cook County and Cook County, by their respective attorneys of record, that this matter has been settled pursuant to the General Release executed by said parties. Therefore, this cause of action should be dismissed with prejudice pursuant to Fed. R. Civ. P. 41 and with each said party bearing its own costs and attorney’s fees in accordance with the terms of the General Release.

Respectfully Submitted,

/s/ Kenneth Flaxman Kenneth Flaxman, ARDC 830399 Attorney for Plaintiff 200 South Michigan Ave Chicago, IL 60643 attorney for plaintff

/s/ Maureen O. Hannon (with consent) Maureen O. Hannon Attorney for Defendants Assistant State’s Attorney Conflicts Counsel Unit 69 West Washington, Suite 2030 Chicago, IL 60602 an attorney for defendants

Case: 1:07-cv-02393 Document #: 72 Filed: 08/09/10 Page 2 of 2 PageID #:568
CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of August, 2008, I electronically file the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing the following: Maureen O. Hannon, Ass’t State’s Atty, 500 Richard J. Daley Center, Chicago, Illinois 60602, and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 Case: 1:07-cv-2393 As of: 09/19/2012 05:32 PM CDT 1 of 6
SCHENKIER,STAYED,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.0.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:07−cv−02393

Harper v. Sheriff of Cook County et al Assigned to: Honorable John W. Darrah Demand: $100,000 Case in other court: 08−03413 Cause: 42:1983 Civil Rights Act
Plaintiff
Robert Harper

Date Filed: 05/01/2007 Date Terminated: 08/10/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Kenneth N Flaxman Kenneth N. Flaxman, P.C. 200 South Michigan Avenue Suite 1240 Chicago, IL 60604 (312) 427−3200 Email: knf@kenlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey Thomas G. Morrissey 10249 South Western Avenue Chicago, IL 60643 (773) 233−7900 Email: tgmlaw@ameritech.net ATTORNEY TO BE NOTICED

V. Defendant Sheriff of Cook County
Defendant

represented by John Paul Heil , Jr. Cook County State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−5468 Fax: (312) 603−5797 Email: jheil@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
Richard Seth Shippee Cook County States Attorney's Office Daley Ctr. 500 Richard J. Daley Center Chicago, IL 60602 (312)603−6299 Email: richard.shippee@cookcountyil.gov ATTORNEY TO BE NOTICED

Case: 1:07-cv-2393 As of: 09/19/2012 05:32 PM CDT 2 of 6

Cook County, Illinois

represented by John Paul Heil , Jr. (See above for address) ATTORNEY TO BE NOTICED

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

Richard Seth Shippee (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/01/2007 05/01/2007 05/01/2007 05/07/2007 05/14/2007 06/22/2007 06/27/2007
07/06/2007
07/06/2007 07/06/2007
07/06/2007
07/11/2007
08/09/2007 08/09/2007
08/09/2007
08/15/2007

# Docket Text
1 COMPLAINT filed by Robert Harper; Jury Demand.(td, ) (Entered: 05/02/2007)
2 CIVIL Cover Sheet. (td, ) (Entered: 05/02/2007)
3 ATTORNEY Appearance for Plaintiff Robert Harper by Kenneth N Flaxman. (td, ) (Entered: 05/02/2007)
5 ATTORNEY Appearance for Plaintiff Robert Harper by Thomas Gerard Morrissey (Morrissey, Thomas) (Entered: 05/07/2007)
6 MINUTE entry before Judge John W. Darrah : A status hearing is scheduled for June 28, 2007, at 9:00 a.m. Mailed notice (td, ) (Entered: 05/15/2007)
7 SUMMONS Issued as to Defendants Sheriff of Cook County, Cook County, Illinois. (td, ) (Entered: 06/25/2007)
8 MINUTE entry before Judge John W. Darrah : The status hearing set for 6/28/2007 at 9:00 a.m. is vacated and reset to 8/22/2007 at 9:00 a.m. Mailed notice (td, ) (Entered: 06/28/2007)
9 ATTORNEY Appearance for Defendants Sheriff of Cook County, Cook County, Illinois by Maureen O'Donoghue Hannon (Hannon, Maureen) (Entered: 07/06/2007)
10 ATTORNEY Appearance for Defendants Sheriff of Cook County, Cook County, Illinois by John Paul Heil, Jr (Heil, John) (Entered: 07/06/2007)
11 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for extension of time to file answer , move, or otherwise plead (Heil, John) (Entered: 07/06/2007)
12 NOTICE of Motion by John Paul Heil, Jr for presentment of motion for extension of time to file answer 11 before Honorable John W. Darrah on 8/14/2007 at 09:00 AM. (Heil, John) (Entered: 07/06/2007)
13 MINUTE entry before Judge John W. Darrah : Defendants' Agreed Motion for Enlargement of Time to Answer or Otherwise Plead 11 is granted. Responsive pleadings are to be filed on or before August 9, 2007. Mailed notice (td, ) (Entered: 07/11/2007)
14 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois to dismiss complaint (Hannon, Maureen) (Entered: 08/09/2007)
15 NOTICE of Motion by Maureen O'Donoghue Hannon for presentment of motion to dismiss 14 before Honorable John W. Darrah on 8/15/2007 at 09:00 AM. (Hannon, Maureen) (Entered: 08/09/2007)
16 MEMORANDUM by Sheriff of Cook County, Cook County, Illinois in support of motion to dismiss 14 complaint (Attachments: # 1 Exhibit Exhibit A Complaint# 2 Exhibit B Jackson 1# 3 Exhibit C Jackson 2# 4 Exhibit D Young)(Hannon, Maureen) (Entered: 08/09/2007)
17 MINUTE entry before Judge John W. Darrah : Defendants' motion to dismiss 14 is entered and briefed as follows: response by 8/22/07, reply by 8/29/07. Status

Case: 1:07-cv-2393 As of: 09/19/2012 05:32 PM CDT 3 of 6

08/22/2007 08/29/2007 08/29/2007 09/19/2007 09/19/2007 10/19/2007 10/19/2007 10/25/2007 01/16/2008
02/08/2008 03/10/2008 03/10/2008 03/11/2008
03/11/2008 04/11/2008
04/11/2008 04/25/2008 05/06/2008

hearing set for 9/19/07 at 9:00 a.m. (td, ) (Entered: 08/16/2007)
18 MEMORANDUM by Robert Harper in Opposition to motion to dismiss 14 (Flaxman, Kenneth) (Entered: 08/22/2007)
19 REPLY by Defendants Sheriff of Cook County, Cook County, Illinois to Plainitff's response to Motion To Dismiss (Hannon, Maureen) (Entered: 08/29/2007)
20 NOTICE by Sheriff of Cook County, Cook County, Illinois of filinig Reply (Hannon, Maureen) (Entered: 08/29/2007)
21 MINUTE entry before Judge John W. Darrah : Status hearing held and continued to 10/25/07 at 9:00 a.m. Defendant to file an answer to the complaint by 10/19/07. Rule 26(a)(1) disclosures to be exchanged by 10/10/07. (td, ) (Entered: 09/20/2007)
22 MINUTE entry before Judge John W. Darrah : Defendant's motion to dismiss is denied. 14 Mailed notice (td, ) (Entered: 09/21/2007)
23 ANSWER to Complaint with Jury Demand by Sheriff of Cook County, Cook County, Illinois(Hannon, Maureen) (Entered: 10/19/2007)
24 NOTICE by Sheriff of Cook County, Cook County, Illinois Notice of Filing of Answer (Hannon, Maureen) (Entered: 10/19/2007)
25 MINUTE entry before Judge John W. Darrah :Status hearing held and continued to 1/16/08 at 9:00 a.m. Mailed notice(maf, ) (Entered: 10/25/2007)
26 MINUTE entry before Judge John W. Darrah : Status hearing held. Plaintiff to answer interrogatories by 1/23/08. Rule 26(a)(1) disclosures to be exchanged by 1/30/08. Plaintiff to be deposed by 2/22/08. Plaintiff's motion for class certification to be filed by 2/8/08, response by 3/28/08, reply by 4/11/08. Status hearing set for 5/14/08 at 9:00 a.m. (td, ) (Entered: 01/17/2008)
27 MOTION by Plaintiff Robert Harper to certify class (Flaxman, Kenneth) (Entered: 02/08/2008)
28 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for extension of time TO Respond To Class Certification (Hannon, Maureen) (Entered: 03/10/2008)
29 NOTICE of Motion by Maureen O'Donoghue Hannon for presentment of extension of time 28 before Honorable John W. Darrah on 3/19/2008 at 09:00 AM. (Hannon, Maureen) (Entered: 03/10/2008)
30 MINUTE entry before Judge John W. Darrah : Defendants' Motion for Enlargement of Time to Respond 28 , 29 is granted. Defendants' response brief is to be filed on or before April 4, 2008. Plaintiff's reply brief is to be filed on or before April 25, 2008. The status hearing scheduled for May 14, 2008, is stricken and reset to May 29, 2008, at 9:00 a.m. Mailed notice (td, ) (Entered: 03/11/2008)
31 MINUTE entry before Judge John W. Darrah :The Court's 3/11/08 minute order is amended as follows: Defendants' response brief to be filed by 4/11/08. Mailed notice(maf, ) (Entered: 03/11/2008)
32 RESPONSE by Defendants Sheriff of Cook County, Cook County, Illinois to motion to certify class 27 (Attachments: # 1 Exhibit A,B,C, # 2 Exhibit D part 1, # 3 Exhibit D part 2, # 4 Exhibit E,F,G,H, # 5 Exhibit I,J)(Hannon, Maureen) (Entered: 04/11/2008)
33 NOTICE by Sheriff of Cook County, Cook County, Illinois re Response 32 To Motion For Class Certification (Hannon, Maureen) (Entered: 04/11/2008)
34 REPLY by Robert Harper to Response 32 in support of class certification (Flaxman, Kenneth) (Entered: 04/25/2008)
35 SUR−REPLY by Defendants Sheriff of Cook County, Cook County, Illinois Motion For Leave to Take Depositions and File a SurReply (Attachments: # 1 Exhibit Attachment 1)(Hannon, Maureen) (Entered: 05/06/2008)

Case: 1:07-cv-2393 As of: 09/19/2012 05:32 PM CDT 4 of 6

05/06/2008 05/07/2008
05/07/2008 05/08/2008 05/08/2008 05/12/2008 05/29/2008
05/29/2008 06/10/2008 06/26/2008 07/17/2008 08/29/2008 09/05/2008
09/05/2008
09/22/2008 09/22/2008 09/22/2008 09/29/2008

36 Of Motion To take additiona depositions and file a surreply NOTICE of Motion by Maureen O'Donoghue Hannon for presentment of before Honorable John W. Darrah on 5/13/2008 at 09:00 AM. (Hannon, Maureen) (Entered: 05/06/2008)
37 MOTION by Defendants Sheriff of Cook County, Cook County, IllinoisLeave to Take Depositions and File A Surreply, MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for leave to file (Attachments: # 1 Exhibit Attachment 1)(Hannon, Maureen) (Entered: 05/07/2008)
38 NOTICE of Motion by Maureen O'Donoghue Hannon for presentment of motion for miscellaneous relief,, motion for leave to file, 37 before Honorable John W. Darrah on 5/13/2008 at 09:00 AM. (Hannon, Maureen) (Entered: 05/07/2008)
39 MEMORANDUM by Robert Harper in Opposition to motion for miscellaneous relief,, motion for leave to file, 37 (Flaxman, Kenneth) (Entered: 05/08/2008)
40 MEMORANDUM by Robert Harper in Opposition to motion for miscellaneous relief,, motion for leave to file, 37 [corrected] (Flaxman, Kenneth) (Entered: 05/08/2008)
41 MINUTE entry before Honorable John W. Darrah: Defendants Motion for Leave to Take Additional Depositions and File Surreply to Plaintiffs Motion for Class Certification 37 , 38 is denied. Mailed notice (kjc, ) (Entered: 05/13/2008)
42 MINUTE entry before the Honorable John W. Darrah: For the reasons stated in the attached memorandum opinion and order, plaintiff's motion to certify case as a class action is granted 27 . Enter Memorandum Opinion and Order. Status hearing set for 6/26/2008 stated in open Court is vacated and re−set to 6/18/2008 at 09:00 AM. Mailed notice (gmr, ) (Entered: 06/02/2008)
43 MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 5/29/2008. (gmr, ) (Entered: 06/02/2008)
44 MINUTE entry before the Honorable John W. Darrah: Status hearing set for 6/18/08 is re−set to 6/26/08 at 9:00 a.m. Mailed notice(maf, ) (Entered: 06/10/2008)
45 MINUTE entry before the Honorable John W. Darrah:Status hearing set for 6/26/08 is re−set to 9/2/08 at 9:00 a.m. Mailed notice (maf) (Entered: 06/26/2008)
46 ATTORNEY Appearance for Defendants Sheriff of Cook County, Cook County, Illinois by Richard Seth Shippee (Shippee, Richard) (Entered: 07/17/2008)
47 MINUTE entry before the Honorable John W. Darrah: Status hearing set for 9/2/08 is re−set to 10/2/08 at 9:00 a.m. Mailed notice(maf, ) (Entered: 08/29/2008)
48 USCA Order dated 9/5/2008 re USCA Appeal No. 08−8017; 1. Defendants' Petition for Permission to Appeal Pursuant to Federal Rule of Civil Prodcedure 23(f), filed on June 12, 2008, by counsel for the petitioner; 2. Plaintiff's Response to Petition for Permission to Appeal, filed on June 30, 2008, by counsel for the respondent; It Is Ordered that #1 is Granted. (gmr, ) (Entered: 09/09/2008)
50 PURSUANT USCA order dated 9/5/08, Defendants' petition for permission to appeal dated 6/12/08 is to be the NOTICE of appeal by Sheriff of Cook County, Cook County, Illinois regarding orders 42 , 43 Filing fee $ 455.00. Receipt #4624008680. (dj, ) (Entered: 09/22/2008)
51 NOTICE of Appeal Due letter sent to counsel of record (dj, ) (Entered: 09/22/2008)
52 TRANSMITTED to the 7th Circuit the short record on notice of appeal, 50 . Notified counsel (dj, ) (Entered: 09/22/2008)
53 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal, 50 ; USCA Case No. 08−3413. (gmr, ) (Entered: 09/25/2008)
54 MINUTE entry before the Honorable John W. Darrah: Status hearing set for 10/2/08 is re−set to 10/23/08 at 9:00 a.m. Mailed notice(maf, ) (Entered: 09/29/2008)

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10/07/2008 10/07/2008 10/23/2008 10/23/2008 10/23/2008 04/23/2009 10/21/2009 11/12/2009
11/13/2009 11/13/2009
11/13/2009 11/13/2009
11/19/2009 12/08/2009 04/08/2010 04/28/2010 05/20/2010

55 Rule 10 designation of Record on Appeal by Sheriff of Cook County, Cook County, Illinois (Hannon, Maureen) (Entered: 10/07/2008)
56 DESIGNATION by Robert Harper of record on appeal : USCA Case No. 08−3413 (Flaxman, Kenneth) (Entered: 10/07/2008)
57 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 50 (USCA no. 08−3413) consisting of 1 volume of pleadings. (dj, ) (Entered: 10/23/2008)
58 USCA RECEIVED on 10/23/08 the long record regarding notice of appeal, 50 (dj, ) (Entered: 10/24/2008)
59 MINUTE entry before the Honorable John W. Darrah: Status hearing held and continued to 4/23/09 at 9:00 a.m. This case is hereby stayed. (gmr, ) (Entered: 10/24/2008)
60 MINUTE entry before the Honorable John W. Darrah: Status hearing held and continued 10/21/09 at 9:00 a.m. Mailed notice (maf) (Entered: 04/23/2009)
61 MINUTE entry before the Honorable John W. Darrah: Status hearing held and continued to 12/8/09 at 9:00 a.m. Mailed notice(maf) (Entered: 10/21/2009)
62 ORDER dated 11/3/2009 from the 7th Circuit regarding notice of appeal, 50 ; Appellate case no.: 08−3413: On consideration of plaintiff−appellee's petition for rehearing and suggestion for rehearing en banc filed on September 21, 2009, in connection with the above−referenced case, no judge in active service has requested a vote on the petition for rehearing en banc and all of the judges on the original panel have voted to deny rehearing. It is, therefore, ordered that the petition for rehearing and suggestion for rehearing en banc is denied. (jj, ) (Entered: 11/13/2009)
63 LETTER from the USCA retaining the record on appeal in USCA no. 08−3413; Record to be returned later consisting of one volume of pleadings. (gmr, ) (Entered: 11/16/2009)
64 MANDATE of USCA dated 9/8/2009 regarding notice of appeal, 50 ; USCA No. 08−3413; The district court's certification of Harper's class is Vacated and the case is Remanded for resolution of Harper's individual claims. The above is in accordance with the decision of this court entered on this date. Each side should bear its own costs. (gmr, ) (Entered: 11/16/2009)
65 OPINION from the USCA for the Seventh Circuit; Argued 4/6/2009; Decided 9/8/2009 in USCA case no. 08−3413. (gmr, ) (Entered: 11/16/2009)
66 CERTIFIED copy of order dated 11/3/2009 from the Seventh Circuit regarding notice of appeal, 50 ; Appellate case no. : 08−3413; On consideration of plaintiff−appellee's petition for rehearing and suggestion for rehearing en banc filed on September 21, 2009, in connection with the above−referenced case, no judge in active service has requested a vote on the petition for rehearing en banc and all of the judges on the original panel have voted to deny rehearing. It is, therefore, Ordered that the petition for rehearing and suggestion for rehearing en banc is Denied. (gmr, ) (Entered: 11/16/2009)
67 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 08−3413 consisting of one volume of pleadings. (gmr, ) (Entered: 11/24/2009)
68 MINUTE entry before the Honorable John W. Darrah: Status hearing held and continued to 4/28/10 at 9:00 a.m. Mailed notice(maf ) (Entered: 12/08/2009)
69 MINUTE entry before Honorable John W. Darrah: Status hearing set for 4/28/10 at 9:00 a.m. is re−set to 4/28/10 at 9:30 a.m. Mailed notice(maf) (Entered: 04/08/2010)
70 MINUTE entry before Honorable John W. Darrah:Status hearing held and continued to 5/20/10 at 9:30 a.m. Mailed notice(maf) (Entered: 04/28/2010)
71 MINUTE entry before Honorable John W. Darrah:Status hearing held. Discovery ordered closed on 8/18/10. Pretrial conference set for 2/2/11 at 1:30 p.m. Jury trial

Case: 1:07-cv-2393 As of: 09/19/2012 05:32 PM CDT 6 of 6

08/09/2010 08/10/2010

set for 2/7/11 at 9:00 a.m. Mailed notice(maf) (Entered: 05/20/2010)
72 STIPULATION of Dismissal [with prejudice and without costs] (Flaxman, Kenneth) (Entered: 08/09/2010)
73 MINUTE entry before Honorable John W. Darrah: Parties having filed a stipulation of dismissal, this case is dismissed with prejudice and without costs. Civil case terminated. Pretrial conference set for 2/2/11 and jury trial set for 2/7/11 is vacated.Mailed notice(maf) (Entered: 08/10/2010)