Case: 1:08-IcNv-0T6H94E6UDNocIuTmEeDntS#T: 1AFTilEeSd: D12I/S0T4/R08ICPTagCeO1UofR5TPageID #:1 FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

tt;
Catherine Zaborowski and Simone Jackson, individually and on behalf of a class,
Plaintiffs,
-us-
Sheriff of Cook County and Cook County, Illinois
Defendants.

FILED: DECEMBER 04, 2008
08CV6946 ) JUDGE ST. EVE ) MAGISTRATE JUDGE VALDEZ ) BR ) )
) No.08CV __
) )
) (jury demand)
) ) )

COMPLAINT Plaintiffs complain about defendants' policy to shackle women during childbirth and, by counsel, allege 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 Catherine Zaborowski and Simone Jackson are residents of the Northern District of Illinois. As set out below with greater specificity, each plaintiff was in the custody of the Sheriff of Cook County immediately before and immediately after she gave birth at Stroger Hospital.
1

C3.ase: 1D:0e8f-ecnv-d0a6n9t4s6 DaroecumtheentS#h: 1erFiiflef do: f12C/0o4o/0k8 CPaoguen2tyofa5nPdagCeoIDok#:2County, 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. Plaintiff Zaborowski entered the Cook County Jail on June 3, 2008; plaintiff Jackson entered the Jail on November 23, 2007.
5. Each plaintiff was pregnant when she entered the jail. 6. Pursuant to the policies of defendant Sheriff, each plaintiff was transferred from the Jail to the Sheriffs "MOM's" program, an off-site, residential treatment program run by the Haymarket Center. 7. Plaintiff Zaborowski went into labor on August 29, 2008 and was taken by a counselor from the Haymarket Center to Stroger Hospital. Zaborowski was not handcuffed or otherwise restrained while she was being taken to the hospital. 8. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Zaborowski hand and foot to a hospital bed. 9. Plaintiff Zaborowski remained shackled hand and foot to the hospital bed for about eleven hours while she was in labor. An armed deputy sheriff remained in the hospital room while plaintiff was in labor.
2
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1C0a.se: 1I:m08m-cev-d0i6a9t4e6lyDboecfuomreentth#e: 1bFiriltehd,: 1th2e/04a/t0t8enPdagineg3 pohf 5ysPiacgiaenIDr#e:q3uested the deputy sheriff to unshackle plaintiff Zaborowski's foot. The deputy complied with this request and Zaborowski was shackled to the bed by one arm when s!Ie delivered her child at about 8:15a.m. on August 30, 2008.
11. In accordance with the policies of defendants, the deputy sheriff re-shackled plaintiff Zaborowski's foot about an hour after the birth.
12. Plaintiff Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. During this period, and as required by defendants' policies, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk
13. Plaintiff Jackson went into labor on May 3, 2008 and was taken by her counselor from the Haymarket Center to Stroger Hospital. Jackson was not handcuffed or otherwise restrained while she was being taken to the hospital.
14. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Jackson hand and foot to a hospital bed.
3
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1C5a.se: P1:l0a8i-nctvi-f0f6J9a4c6kDsoocnurmeemnat #in: e1dFislehda:c1k2l/e0d4/h08anPdagaen4doffo5otPatogetIhDe#h:4ospital bed while she was in labor and during birth. An armed deputy sheriff remained in the hospital room while plaintiff was in labor and was present when plaintiff delivered her child while shackled.
16. Plaintiff Jackson remained at Stroger Hospital for about four days. During this period, and as required by defendants' policies, Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk.
17. Each plaintiff was deprived of rights secured by the Fourth, Eighth, and Fourteenth Amendment to the Constitution of the United States by defendants' above described shackling policy.
18. As a direct and proximate result of defendants' shackling policy, plaintiffs and all other persons subjected to the above referred policy were unreasonably restrained, subjected to punishment, incurred great emotional and physical pain and suffering.
19. Plaintiffs bring this action individually and for all women in the custody of defendant Sheriff who, in the two year period preceding the filing of this lawsuit, were shackled during labor and after delivery. The proposed
4
l II

Case: 1:08-cv-06946 Document #: 1 Filed: 12/04/08 Page 5 of 5 PageID #:5
class satisfies each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure and class certification is appropriate under Rule 23(b)(3).
20. Plaintiffs hereby demand trial by jury.
i
Wheli:efore plaintiffs request that judgment be entered in their favor and in favor of the proposed class, and that plaintiffs and each class member receive compensatory damages in an amount in excess of one hundred thousand dollars, and that the Court grant whatsoever other relief as may be appropriate.
Is/ Thomas G. Morrissey Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, 11. 60643 (773)-233-7900
Kenneth N. Flaxman 200 S. South Michigan Suite 1240 Chicago, 11. 60604-2430 (312) 427-3200 Attorneys for Plaintiffs
5

 
 Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 1 of 7 PageID #:20
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Catherine Zaborowski and Simone Jackson, individually and on behalf of a class,
Plaintiffs,
-vs-
Sheriff of Cook County and Cook County, Illinois
Defendants.

) ) ) ) ) ) No. 08 CV 6946 ) ) ) (Judge St. Eve) ) ) )

AMENDED COMPLAINT
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, plaintiffs file this amended complaint and, by counsel, allege 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 and 28 U.S.C. §1367.
2. Plaintiffs Catherine Zaborowski and Simone Jackson are residents of the Northern District of Illinois. As set out below with greater

1

Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 2 of 7 PageID #:21
specificity, each plaintiff was in the custody of the Sheriff of Cook County immediately before and immediately after she gave birth at Stroger Hospital.
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. Plaintiff Zaborowski entered the Cook County Jail on June 3, 2008; plaintiff Jackson entered the Jail on November 23, 2007.
5. Each plaintiff was pregnant when she entered the jail. 6. Pursuant to the policies of defendant Sheriff, each plaintiff was transferred from the Jail to the Sheriff’s “MOM’s” program, an off-site, residential treatment program run by the Haymarket Center. 7. Plaintiff Zaborowski went into labor on August 29, 2008 and was taken by a counselor from the Haymarket Center to Stroger Hospital. Zaborowski was not handcuffed or otherwise restrained while she was being taken to the hospital. 8. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Zaborowski hand and foot to a hospital bed.
2

Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 3 of 7 PageID #:22
9. Plaintiff Zaborowski remained shackled hand and foot to the hospital bed for about eleven hours while she was in labor. An armed deputy sheriff remained in the hospital room while plaintiff was in labor.
10. Immediately before the birth, the attending physician requested the deputy sheriff to unshackle plaintiff Zaborowski’s foot. The deputy complied with this request and Zaborowski was shackled to the bed by one arm when she delivered her child at about 8:15 a.m. on August 30, 2008.
11. In accordance with the policies of defendants, the deputy sheriff re-shackled plaintiff Zaborowski’s foot about an hour after the birth.
12. Plaintiff Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. During this period, and as required by defendants’ policies, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk
13. Plaintiff Jackson went into labor on May 3, 2008 and was taken by her counselor from the Haymarket Center to Stroger Hospital. Jackson was not handcuffed or otherwise restrained while she was being taken to the hospital.
3

Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 4 of 7 PageID #:23
14. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Jackson hand and foot to a hospital bed.
15. Plaintiff Jackson remained shackled hand and foot to the hospital bed while she was in labor and during birth. An armed deputy sheriff remained in the hospital room while plaintiff was in labor and was present when plaintiff delivered her child while shackled.
16. Plaintiff Jackson remained at Stroger Hospital for about four days. During this period, and as required by defendants’ policies, Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk.
17. Each plaintiff was deprived of rights secured by the Fourth, Eighth, and Fourteenth Amendment to the Constitution of the United States by defendants’ above described shackling policy.
18. At all times relevant, there was in force and effect an Illinois statute compiled as 55 ILCS 5/3-15003.6 which provided as follows:
Pregnant female prisoners. Notwithstanding any other statute, directive, or administrative regulation, when a pregnant female prisoner is brought to a hospital from a County Department of Corrections facility for the purpose of delivering her baby, no handcuffs, shackles, or restraints of any kind may be used during her transport to a medical facility for the purpose of
4

Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 5 of 7 PageID #:24
delivering her baby. Under no circumstances may leg irons or shackles or waist shackles be used on any pregnant female prisoner who is in labor. Upon the pregnant female prisoner's entry to the hospital delivery room, a county correctional officer must be posted immediately outside the delivery room. The Sheriff must provide for adequate personnel to monitor the pregnant female prisoner during her transport to and from the hospital and during her stay at the hospital. 19. Defendants have failed and or refused to implement the above referred Illinois statute. 20. Each plaintiff was damaged as the direct and proximate result of defendants’ failure and or refusal to implement the above referred Illinois statute. 21. As a direct and proximate result of defendants’ shackling policy, and by defendants failure and or refusal to implement the above referred Illinois statute, plaintiffs and all other persons subjected to the above referred policy were unreasonably restrained, subjected to punishment, incurred great emotional and physical pain and suffering. 22. Plaintiffs bring this action individually and for all women in the custody of defendant Sheriff who, in the two year period preceding the filing of this lawsuit, were shackled during labor and after delivery. The proposed class satisfies each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure and class certification is appropriate under Rule 23(b)(3).
5

Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 6 of 7 PageID #:25
23. Plaintiffs hereby demand trial by jury. Wherefore plaintiffs request that judgment be entered in their favor and in favor of the proposed class, and that plaintiffs and each class member receive compensatory damages in an amount in excess of one hundred thousand dollars, and that the Court grant whatsoever other relief as may be appropriate.
Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, Il. 60643 (773)-233-7900 /s/ Kenneth N. Flaxman Kenneth N. Flaxman 200 S. South Michigan Suite 1240 Chicago, Il. 60604-2430 (312) 427-3200 Attorneys for Plaintiffs
6

Case: 1:08-cv-06946 Document #: 13 Filed: 01/28/09 Page 7 of 7 PageID #:26
CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of January, 2009, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Patrick S. Smith, ASA, 500 Daley Center, Chicago, IL 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: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 1 of 8 PageID #:27

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHERINE ZABOROWSKI and SIMONE JACKSON, individually and on behalf of a class,
Plaintiff,
vs.
SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS
Defendants.

)

)

)

)

)

08 C 6946

)

)

Honorable Judge

)

Amy St. Eve

)

)

)

)

DEFENDANTS’ ANSWER TO PLAINTIFFS' AMENDED COMPLAINT

NOW COME Defendant s, through their attorney ANITA ALVAREZ, State's Attorney of

Cook County, through her assistant, Assistant State's Attorney PATRICK SMITH, and, answer

Plaintiffs’ Amended Complaint 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 and 28 U.S.C. §1367.
ANSWER: Defendants admit the allegations contained in paragraph one.

2. Plaintiffs Catherine Zaborowski and Simone Jackson are residents of the Northern District of Illinois. As set out below with greater specificity, each plaintiff was in the custody of the S heriff of Cook County immediately before and immediately after she gave birth at Stroger Hospital.
ANSWER: Defendants are without knowledge or information sufficient to form a

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 2 of 8 PageID #:28
belief as to the truth of the allegations contained in paragraph two.
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).
ANSWER: Defendants admit the allegations contained in paragraph three.
4. Plaintiff Zaborowski entered the Cook County Jail on June 3, 2008; plaintiff Jackson entered the Jail on November 23, 2007.
ANSWER: Defendants admit the allegations contained in paragraph four.
5. Each plaintiff was pregnant when she entered the jail. ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph five.
6. Pursuant to the policies of defendant Sheriff, each plaintiff was transferred from the Jail to the Sheriffs "MOM's" program, an off -site, residential treatment program run by the Haymarket Center.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in parag raph six. 7. Plaintiff Zaborowski went into labor on August 29, 2008 and was

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 3 of 8 PageID #:29
taken by a counselor from the Haymarket Center to Stroger Hospital. Zaborowski was not handcuffed or otherwise restrained while she was being taken to the hospital.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph seven.
8. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs s hackled plaintiff Zaborowski hand and foot to a hospital bed.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph eight.
9. Plaintiff Zaborowski remained shackled hand a nd foot to the hospital bed for about eleven hours while she was in labor. An armed deputy sheriff remained in the hospital room while plaintiff was in labor.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph nine.
10. Immediately before the birth, the attending physician requested the deputy sheriff to unshackle plaintiff Zaborowski's foot. The deputy complied with this request and Zaborowski was shackled to the bed by one arm when she delivered her child at about 8:15 a.m. on August 30, 2008.

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 4 of 8 PageID #:30
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph ten.
11. In accordance with the policies of defendants, the deputy sheriff re-shackled plaintiff Zaborowski's foot about an hour after the birth.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in pa ragraph eleven.
12. Plaintiff Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. During this period, and as required by defendants' policies, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph twelve.
13. Plaintiff Jackson went into labor on May 3 , 2008 and was taken by her counselor from the Haymarket Center to Stroger Hospital. Jackson was not handcuffed or otherwise restrained while she was being taken to the hospital.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph thirteen.

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 5 of 8 PageID #:31
14. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Jackson hand and foot to a hospital bed.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph fourteen.
15. Plaintiff Jackson remained shackled hand and foot to the hospital bed while she was in labor and during birth. An armed deputy sheriff remained in the hospital room while plaintiff was in labor and was present when plaintiff delivered her child while shackled.
ANSWER: Defendants deny the allegations contained in paragraph fifteen.
16. Plaintiff Jackson remained at Stroger Hospital for about four days. During this period, and as required by defendants' policies, Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk.
ANSWER: Defendants deny the allegations contained in paragraph sixteen.
17. Each plaintiff was deprived of rights secured by the Fourth, Eighth, and Fourteenth Amendment to the Constitution of the United States by defendants' above described shackling policy.
ANSWER: Defendants deny the allegations contained in paragraph seventeen.

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 6 of 8 PageID #:32

18. At all times relevant, there was in force and effect an Illinois

statute compiled as 55 ILCS 5/3-15003.6 which provided as follows:

Pregnant female prisoners . Notwithstanding any other statute, directive,

or administrative regulation, when a pregnant female prisoner is brought to a

hospital from a County Department of Corrections facility for the purpose of

delivering her baby, no handcuffs, shackles, or restraints of any kind may be

used

during her transport to a medical facility for the purpose of delivering her baby.

Under no circumstances may leg irons or shackles or waist shackles be used on

any pregnant female prisoner who is in labor. Upon the pregnant female

prisoner's entry to the hospital delivery room , a county correctional officer must

be posted immediately outside the delivery room. The Sheriff must provide

for adequate personnel to monitor the

pregnant female prisoner during her

transport to and from the hospital and during her stay at the hospital

ANSWER: Defendants admit the rule set out in Illinois statute compiled as 55

ILCS 5/3-15003.6.

19. Defendants have failed and or refused to implement the above referred Illinois statute.
ANSWER: Defendants deny the allegations contained in paragraph nineteen.
20. Each plaintiff was damaged as the direct and proximate result of defendants' failure and or refusal to implement the above referred Illinois statute.
ANSWER: Defendants deny the allegations contained in paragraph twenty.
21. As a direct and proximate result of defendants' shackling policy,

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 7 of 8 PageID #:33
and by defendants failure and or refusal to implement the above referred Illinois statute, plaintiffs and all other persons subjected to the above referred policy were unreasonably restrained, subjected to punishment, incurred great emotional and physical pain and suffering.
ANSWER: Defendants denytheallegationscontainedinparagraphtwenty-one.
22. Plaintiffs bring this action individually and for all women in the custody of defendant Sheriff who, in the two year period pr eceding the filing of this lawsuit, were shackled during labor and after delivery. The proposed class satisfies each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure and class certification is appropriate under Rule 23(b)(3).
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph twenty-two.
23. Plaintiffs hereby demand trial by jury. ANSWER: Defendants admit the allegations contained in paragraph twenty-three.
AFFIRMATIVE DEFENSE The Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). See Massey v. Helman 196 F.3d 727 (7th Cir. 1999) and Pavey v. Conley 528 F.3d 494 (7th Cir. 2008).

Case: 1:08-cv-06946 Document #: 14 Filed: 02/05/09 Page 8 of 8 PageID #:34
JURY DEMAND Defendants respectfully request a trial by jury.
WHEREFORE, based on the foregoing, Defendant s deny that Plaintiffs are entitled to any damages or attorney’s fees. Defendant s pray that this Honorable Court grant judgment in their favor and against Plaintiff s on all aspects of their amended complaint and further requests that this Honorable Court grant Defendants’ fees, costs, and such other belief that this Court deems just and appropriate.
Respectfully Submitted, ANITA ALVAREZ State's Attorney of Cook County By: /s/ Patrick S. Smith Patrick S. Smith Deputy Supervisor Torts/Civil Rights Litigation Section 500 Richard J. Daley Center Chicago, IL 60602 (312) 603-2388

 
 Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 1 of 163 PageID #:52

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

Catherine Zaborowski and Simone Jackson, individually and on behalf of a class,
Plaintiffs, -vs-
Sheriff of Cook County and Cook County, Illinois,
Defendants.

) ) ) ) ) No. 08 CV 6946 ) ) ) (Judge St. Eve) ) ) )

MOTION FOR CLASS CERTIFICATION

Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure,

plaintiffs Catherine Zaborowski and Simone Jackson, by counsel, move

the Court to order that this case be maintained as a class action on

behalf of:

All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.
Pursuant to Rule 23(C)(4), plaintiffs request that the case be

maintained as a class action solely to adjudicate the legality of the She-

riff’s shackling policy, and that all questions of damages for unnamed

members of the class be reserved to individual damage actions.

.

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 2 of 163 PageID #:53
I. Facts
Each year, more than 30 women give birth while in the custody of the Sheriff of Cook County.1
In 1998, the Sheriff adopted a policy mandating that all pregnant women in his custody be shackled during labor and during recovery following labor.2 The Sheriff’s shackling policy requires a Deputy Sheriff to bind one leg and one arm of the pregnant detainee to her hospital bed. (Exhibit 2 at 56:4-6.) The policy also requires an armed Deputy Sheriff to remain with the pregnant detainee during labor and delivery. (Exhibit 2 at 56:14-17.)
In May v. Sheahan, 226 F.3d 876 (7th Cir. 2000), the Seventh Circuit held that the Sheriff’s policy requiring that all hospital detainees be shackled to their beds was “plainly excessive” as applied to an AIDS patient. Id. at 884. The Court reaffirmed this settled law in Hart v. Sheahan, 396 F.3d 887 (7th Cir. 2005), when it quoted from May that “the use of bodily restraints constitutes punishment in the constitu-
1 This is an estimate based on discovery in this case. Defendants have not as yet fully responded to discovery seeking information about the precise number of births. 2 The Sheriff’s spokesperson is quoted in AP news reports that “[t]he measure was enacted after a woman in 1998 jumped out of the hospital window, ripping her stitches, and bleeding to death.” (Plaintiffs’ Exhibit 1.) Plaintiffs do not believe that this sad event involved childbirth.
-2-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 3 of 163 PageID #:54
tional sense if their use is not rationally related to a legitimate nonpunitive government purpose or they appear excessive in relation to the purpose they allegedly serve.” Id. at 892. The question presented in this case is whether the use of bodily restraints on a pregnant woman during labor, delivery, or recovery following delivery is “rationally related to a legitimate non-punitive government purpose.” Id.
Plaintiffs Catherine Zaborowski and Simone Jackson were pregnant when processed into the jail. (Amended Complaint, ¶5.) Jackson went into labor on May 3, 2008 and was taken to Stroger Hospital to deliver her child. (Amended Complaint, ¶13.) At the hospital, deputy sheriffs shackled Jackson hand and foot to a hospital bed. (Amended Complaint, ¶14.) Jackson remained shackled while she was in labor (Amended Complaint, ¶15) and was unshackled for ten minutes during delivery. (Plaintiffs’ Exhibit 5.)
Jackson remained at the hospital for four days following delivery; throughout this recovery period, she continued to be shackled hand and foot to the hospital bed and was not allowed to use the toilet or to get up from the bed to walk. (Amended Complaint, ¶16.) The experiences of plaintiff Zaborowski were similar.
Zaborowski went into labor on August 29, 2008 and was taken to Stroger Hospital to deliver her child. (Amended Complaint, ¶7.) There,
-3-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 4 of 163 PageID #:55
deputy sheriffs shackled Zaborowski hand and foot to a hospital bed. (Amended Complaint, ¶8.) Zaborowski remained shackled for about eleven hours while she was in labor. (Amended Complaint, ¶9.) Immediately before actual delivery of the child, the attending physician requested the deputy sheriff to unshackle Zaborowski’s foot. (Amended Complaint, ¶10.) The deputy complied with this request and Zaborowski was shackled to the bed by one arm when she delivered her child. Id.
Zaborowski remained at the hospital until the evening of the day after delivery. (Amended Complaint, ¶12.) During this period, she was shackled hand and foot to the hospital bed and not permitted to use the toilet or to get up from the bed to walk. Id.
Plaintiffs were shackled because of defendant Dart’s official policy, as admitted at a Rule 30(b)(6) deposition by Superintendent Holmes. (Exhibit 2.)
Holmes stated that the policy allows for the removal of shackles during actual delivery of the child. (Exhibit 2 at 118:7-24.) Holmes may be misinformed about the actual policy: the experience of plaintiff Zaborowski suggests that the policy is to retain the shackle on one arm during delivery. (Amended Complaint, ¶12.)
A Rule 23(b)(3) class action is the appropriate vehicle to adjudicate the legality of the shackling policy. Arreola v. Godinez, 546 F.3d
-4-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 5 of 163 PageID #:56
788, 798 (7th Cir. 2008). Plaintiffs show below that the proposed class satisfies each of the requirements of Rule 23(a) and that certification is appropriate under Rule 23(b)(3).
II. The Proposed Class Satisfied Rule 23(a) and (b)(3)
This Court recently analyzed the standards of Rule 23 in Makor Issues & Rights, Ltd. v. Tellabs, Inc. 256 F.R.D. 586 (N.D.Ill. 2009) and Harris v. Best Buy Co., Inc., 254 F.R.D. 82 (N.D.Ill. 2008): The proponent of class certification must show that the proposed class satisfies each of the requirements of Rule 23(a) and that the proposed class satisfies one of the subsections of Rule 23(b). This case satisfies each of these requirements.
A. Numerosity Plaintiff asks the Court to allow this case to proceed for: All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery. Plaintiffs have requested defendants to produce information about the precise number of childbirths on and after December 4, 2006; while defendants have not as yet fully complied with this request, plaintiffs’ counsel estimate from the information available that each year, more than 30 women give birth while in the custody of the Sheriff
-5-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 6 of 163 PageID #:57
of Cook County. Thus, counsel estimate that there are at least 75 women in the proposed class.
In Cotton v. Asset Acceptance, LLC, No. 07-C-5005 (N.D.Ill. June 26, 2008, Exhibit 3), this Court endorsed the rule of thumb that “a class of at least forty members is sufficient to satisfy the numerosity requirement.” (Exhibit 3 at 4.) Plaintiffs expect defendants to agree that the proposed class meets this benchmark; plaintiffs anticipate that defendants will not dispute numerosity.
B. Commonality The commonality requirement of Rule 23(a) is satisfied when a defendant has “engaged in standardized conduct towards members of the proposed class.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998); Harris v. Best Buy Co., Inc., 254 F.R.D. 82, 87 (N.D.Ill. 2008). This requirement is satisfied in this case, where the class claim arises from defendants’ shackling policy. The common question in this case is whether the use of bodily restraints on a pregnant woman during labor, delivery, or recovery following delivery is “rationally related to a legitimate non-punitive government purpose,” as required by May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000). This question is “common to all potential class
-6-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 7 of 163 PageID #:58
members,” Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008), and satisfies the commonality requirement of Rule 23(a).
C. Typicality “A plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.’” Keele v. Wexler, 149 F.3d 589, 595 (1998); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983). In this case, the class claim arises from the shackling policy that defendants applied to the named plaintiffs. Plaintiffs’ claim thus satisfies the typicality requirement of Rule 23. Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008).
D. Adequacy of Representation Defendants cannot dispute that competent attorneys represent the proposed class.3 Nor can defendants argue that either of the named plaintiffs has any interest at odds with that of the proposed class. Defendants may argue, however, that the named plaintiffs cannot ade-
3 Plaintiff’s attorneys are class counsel in several cases challenging various practices at the jail, including Jackson v. Sheriff, 06 CV 493 (challenge to STD testing); Phipps v. Sheriff, No. 07 CV 3998 (challenge to ADA compliance at jail for wheelchair bound detainees); Parish v. Sheriff, 07 CV 4369 (challenge to administration of prescription medication at jail); Streeter v. Sheriff, No. 08 CV 732 (challenge to return from court strip search policy).
-7-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 8 of 163 PageID #:59
quately represent the class because of their criminal history. This argument is wholly without merit: “Several courts have certified or have approved the certification of classes of prisoner and detainee plaintiffs. [citations omitted] If defendants were correct, there would be no such thing as a class action in the prison or jail context. In any event, defendants have failed to provide any basis to believe that the named plaintiffs’ criminal histories differentiate them from other class members or make their interests different from those of the class as a whole.” Parish v. Sheriff, supra, Exhibit 10 at 9.
E. Rule 23(b)(3): Predominance and Superiority Rule 23(b)(3) requires the Court to find “that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that the class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The “predominant question” in this case is whether the use of bodily restraints on a pregnant woman during labor, delivery, or recovery following delivery is “rationally related to a legitimate non-punitive government purpose,” as required by May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000). This claim does not turn on individual issues. See, e.g., Parish v. Sheriff, Exhibit 4 at 9.
-8-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 9 of 163 PageID #:60
In Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003), the Seventh Circuit endorsed Rule 23(b)(3) class actions when, as in this case, “there are genuinely common issues, issues identical across all the claimants, issues moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated proceedings.” Id. at 911. As in Mejdrech, “it makes good sense, especially when the class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant-specific issues to individual follow-on proceedings.” Id.
The Seventh Circuit recently reaffirmed this view in Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008). Arreola teaches that in evaluating requests for class certification under Rule 23(b)(3), the district court must consider the provision of Rule 23(c)(1)(B) authorizing the class treatment of “claims” as well as “issues.” Id. at 800. Thus, the possibility that the amount of damages might vary among individual class members is not a basis for refusing to allow a case to proceed as a class action.
Plaintiffs acknowledge that each class member should receive a separate determination of damages. Accordingly, plaintiffs request, pursuant to Rule 23(c)(4), that the case be maintained as a class action solely to adjudicate the legality of the Sheriff’s shackling policy, leaving
-9-

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 10 of 163 PageID #:61
all questions of damages for unnamed members to be resolved in individual actions.
III. Conclusion
For the reasons above stated, plaintiffs request that the Court order that this case be maintained as a class action for:
All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.
Respectfully submitted,
/s/ Kenneth N. Flaxman Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, Illinois 60604 (312) 427-3200 Thomas G. Morrissey. 10249 S Western Ave Chicago, Illinois 60643 (773) 233-7900 Attorneys for Plaintiff
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Exhibit 1

Associated Press: Ex-inmate sues, says was chained to bed in labor

http://license.icopyright.net/user/viewFreeUse.act?fuid=MzgxMDM4M...

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 12 of 163 PageID #:63

June 12, 2009
Ex-inmate sues, says was chained to bed in labor
A former Cook County Jail inmate has sued the county Sheriff's office, saying she was handcuffed to her hospital bed until just before she gave birth.
Marilu Morales was eight months pregnant in April 2008 when she was jailed for possession of controlled substances.
In a lawsuit filed Thursday in federal court, Morales says that when she was in labor at Stroger Hospital, a Sheriff's deputy shackled her hand and foot to her bed and unchained her at a doctor's request shortly before she gave birth. She says the deputy put the shackles back on after the baby was born.
Morales is seeking $200,000 in damages.
Sheriff's department spokesman Steve Patterson said the deputy followed department policy and that his actions conformed to state law.
The policy requires all pregnant detainees to be handcuffed to the bed until they are in labor and then, when the baby has been delivered, to be handcuffed again.
The measure was enacted after a woman in 1998 jumped out of the hospital window, ripping her stitches, and bleeding to death, he said.
Morales' attorney Tom Morrissey said the explicitly states that women may not be handcuffed on the way to the hospital or at all during labor.
He said the discrepancy is over the definition of "labor," and that the state interprets it as "right before the baby is born." Morrissey said he plans to ask the judge for class action status so other women can be included as plaintiffs.
"When a woman is in labor, she is in no condition to get up and flee," Morrissey said.
Patterson said neither the department nor the state statute define labor, but he "won't get into a debate" about when the handcuffs should be removed.
___
Information from: Chicago Tribune, http://www.chicagotribune.com

Plaintiff's Exhibit 1
1 of 2

Page 1
6/14/2009 10:18 PM

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Exhibit 2

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 14 of 163 PageID #:65

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

CATHERINE ZABOROWSKI and )

SIMONE JACKSON,

)

)

Plaintiffs, )

)

v.

) No. 08 C 6946

)

SHERIFF OF COOK COUNTY )

and COOK COUNTY, ILLINOIS,)

)

Defendants. )

The deposition of MICHAEL C. HOLMES, II, designated 30(b)(6) representative, called by the Plaintiffs for examination, taken pursuant to the Federal Rules of Civil Procedure of the United States District Courts pertaining to the taking of depositions, taken before KATHLEEN M. DUFFEE, a Notary Public within and for the County of Cook, State of Illinois, a Certified Shorthand Reporter and Registered Professional Reporter of said state, taken at 500 Daley Center, Chicago, Illinois, on the 21st day of May, A.D. 2009 at 9:43 a.m.

Plaintiffs' Exhibit 2

Page 1

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2

1 PRESENT:

2

THOMAS G. MORRISSEY, LTD.,

10249 South Western Avenue

3

Chicago, Illinois 60643

(773) 233-7900, by:

4

THOMAS G. MORRISSEY, ESQUIRE,

5

appeared on behalf of the Plaintiffs;

6

ANITA ALVAREZ, STATE'S ATTORNEY OF

7

COOK COUNTY, ILLINOIS,

500 Daley Center

8

Chicago, Illinois 60602

(312) 603-5440, by:

9

PATRICK S. SMITH, ESQUIRE,

10

appeared on behalf of the Defendants.

11

12 ALSO PRESENT:

13

Ms. Lindsey Shapiro

14

15

16

17

18

19

20

21

22

23

24 REPORTED BY: KATHLEEN M. DUFFEE, CSR, RPR

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 2

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3

1

I N D E X

2 WITNESS

EXAMINATION

3 MICHAEL C. HOLMES, II

4

By Mr. Morrissey

5, 107

5

By Mr. Smith

104, 121

6

7

8

E X H I B I T S

9 NUMBER

MARKED

10 Plaintiff's Exhibit No. 1

4

11

No. 2

39

12

No. 3

39

13

No. 4

42

14

Group No. 5

84

15

No. 6

97

16

17

18

19

20

21

22

23

24

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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4

1

(WHEREUPON, the witness was

2

duly sworn.)

3

MR. MORRISSEY: This is a Rule 30(b)(6)

4 Notice of Deposition taken pursuant to notice and

5 continued by agreement of the parties to today's

6 date.

7

Do you have a copy of that

8 Rule 30(b)(6)? I want to make this part of the

9 record.

10

The plaintiffs have noticed up a Rule

11 30(b)(6) deposition, and I'm going to mark the

12 notice, which was served back in April of 2009, I'm

13 going to mark that Exhibit No. 1 for the record.

14

(WHEREUPON, said document was

15

marked Plaintiff's Exhibit

16

No. 1, for identification,

17

as of 05-21-09.)

18

MR. MORRISSEY: Mr. Smith, has Superintendent

19 Holmes been produced pursuant to this notice that was

20 sent to you?

21

MR. SMITH: Yes.

22

MR. MORRISSEY: Okay.

23

24

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 4

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5

1

MICHAEL C. HOLMES, II,

2 called as a witness herein by the Plaintiffs, having

3 been first duly sworn, was examined and testified as

4 follows:

5

EXAMINATION

6 BY MR. MORRISSEY:

7

Q. Will you state your full name for the record?

8

A. Michael Charles Holmes, II.

9

Q. What is the highest level of formal education

10 you've completed?

11

A. After my associate's degree, I attended UIC

12 for one year.

13

Q. Where did you receive your associate's degree?

14

A. Morton Junior College, Cicero, Illinois.

15

Q. In what year?

16

A. '82.

17

Q. Did you have a major at Morton College?

18

A. Law enforcement.

19

Q. And when did you attend U of I? Is that

20 Circle?

21

A. Circle, yes, sir. '83.

22

Q. And what was your major at U of I?

23

A. Criminal justice.

24

Q. Did you complete that program?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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6

1

A. No, sir.

2

Q. How many hours of criminal justice did you

3 take at U of I?

4

A. I don't recall.

5

Q. What year did you graduate from high school?

6

A. 1980.

7

Q. What high school?

8

A. Morton West High School, Berwyn, Illinois.

9

Q. And from 1980 to the present time, describe

10 every position of law enforcement that you've held.

11

A. I've worked security at Oak Park Hospital.

12

Q. And when was that?

13

A. I believe during my college years, from '80

14 to approximately '83.

15

Q. And when was your next position in law

16 enforcement?

17

A. Right after that was Berwyn Police Department

18 as the ordinance enforcer.

19

Q. Were you a sworn officer for Berwyn's police

20 department?

21

A. No, sir.

22

Q. How long did you hold that position?

23

A. Approximately May of '85.

24

Q. What was your next position in law

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 6

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7

1 enforcement?

2

A. During that position, I also was a Berwyn

3 auxiliary police officer.

4

Q. Were you a sworn auxiliary police officer?

5

A. Yes, sir.

6

Q. For what period were you an auxiliary police

7 officer?

8

A. Approximately the same, from '83 to '85.

9

Q. What was your next position in law

10 enforcement?

11

A. I began with the Cook County Department of

12 Corrections May of '85.

13

Q. Did you receive any training in the academy

14 when you joined the Cook County Sheriff's Office?

15

A. Yes, sir.

16

Q. And what academy did you attend?

17

A. At the time, the academy was held at the

18 CCDOC, Division 6, and it was the State's

19 Correctional Training Academy.

20

Q. Now, how long was the training program at

21 the academy?

22

A. Twelve weeks.

23

Q. During those 12 weeks, did they cover external

24 security for the Cook County Jail?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 7

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8

1

A. Yes, sir.

2

Q. In particular, did they cover issues

3 regarding guarding detainees that were hospitalized?

4

A. Yes, sir.

5

Q. At that time what did you learn in the

6 academy in regards to retraining detainees that were

7 hospitalized?

8

A. At that time the protocol was to: if you

9 were sitting on a detainee at a hospital, they were

10 to be handcuffed one extremity and the other to the

11 secure part of the hospital bed, and also leg-shackled

12 the opposite leg, and the other shackle to a secure

13 part of the bed.

14

Q. So both legs were shackled in 1985 out of the

15 academy's training?

16

A. Just one.

17

Q. Just one. In 1985 under the training you

18 received at the academy, in addition to one leg being

19 shackled was either hand shackled?

20

A. Yes, sir.

21

Q. And which hand was that?

22

A. The opposite from the leg that was shackled.

23

Q. In addition to the one arm and one leg being

24 shackled, was there a shackle around the midsection

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 8

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 22 of 163 PageID #:73

9

1 of a patient?

2

A. No, sir.

3

Q. Was there what's commonly called now a

4 blue box that accompanied the shackle to the leg or

5 to the arm --

6

A. No, sir.

7

Q. -- in 1985?

8

And during your training in 1985 at the

9 academy -- strike that.

10

Do you know what is considered a

11 high-risk designee?

12

A. No, sir.

13

Q. In 1985 were all detainees, under the

14 training you received at the academy, required to be

15 shackled one leg to the bed and one arm to the leg

16 while hospitalized?

17

A. It was one, one leg to the bed and one arm

18 to the bed.

19

Q. And that was for all hospitalized detainees?

20

A. Yes, sir.

21

Q. That included women that were in labor;

22 correct?

23

A. No, sir.

24

Q. Did it include elderly detainees?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 9

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10

1

A. I'm sorry?

2

Q. Did it include elderly detainees?

3

A. Yes.

4

Q. Did it include paralyzed detainees?

5

MR. SMITH: I'm going to object to foundation.

6 When are we talking about?

7 BY MR. MORRISSEY:

8

Q. We're talking about 1985 when you received

9 training at the jail.

10

A. Yes, sir.

11

Q. And in 1958 in the training that you received

12 when you became a correctional officer, was there any

13 rule or regulation in 1985 that excluded women that

14 were hospitalized who were in labor?

15

A. I don't recall.

16

Q. In 1985 in the academy, was there any oral

17 instruction given by any anybody teaching at the

18 academy that pregnant women who were in labor were

19 not to be shackled while hospitalized?

20

A. I don't recall.

21

Q. In 1985 was there a policy at the Cook County

22 Jail that women that were pregnant and in labor who

23 were hospitalized were not to be shackled?

24

MR. SMITH: Objection, asked and answered.

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 10

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11

1 He said he didn't know.

2

MR. MORRISSEY: No, he didn't.

3

MR. SMITH: Yeah, he did.

4

MR. MORRISSEY: No. No.

5

MR. SMITH: Yes, he did.

6 BY MR. MORRISSEY:

7

Q. You can answer.

8

A. I don't recall.

9

Q. After attending the academy, what was your

10 first position at the Cook County Department of

11 Corrections?

12

A. I was a correctional officer assigned to

13 the periodic imprisonment unit.

14

Q. For what period of time did you hold that

15 position?

16

A. Approximately three years.

17

Q. What division at that time was that

18 considered?

19

A. Division 7.

20

Q. So that would take us to about 1988?

21

A. Yes, sir.

22

Q. In 1988 did your position change at the

23 Department of Corrections?

24

A. Yes, sir.

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 11

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12

1

Q. And what was your new position?

2

A. Still as an officer, I was assigned to the

3 External Operations unit.

4

Q. Was John Maw (phonetic) at that time in

5 charge of External Operations?

6

A. My immediate supervisor?

7

Q. No. I'm wondering if he was the

8 Superintendent of External Operations in 1988.

9

MR. SMITH: I'm going to object. It goes

10 beyond the scope of the notice.

11 BY MR. MORRISSEY:

12

Q. If you recall.

13

A. I'm sorry?

14

Q. If you recall whether or not John Maw was

15 the Superintendent in 1988.

16

A. I don't recall.

17

Q. Who was your immediate supervisor in 1988?

18

MR. SMITH: I'm going to object again. It's

19 outside of the scope.

20 BY MR. MORRISSEY:

21

Q. You may answer.

22

A. There were two chiefs that I reported to:

23 Chief Hartsfield and Chief Curtis.

24

Q. Kurtovich?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 12

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13

1

A. Curtis.

2

Q. In 1988 were you assigned to guard inmates

3 incarcerated, inmates that were hospitalized?

4

A. Periodically, yes.

5

Q. And what hospital facilities were you

6 assigned to?

7

A. Basically, Stroger Hospital.

8

Q. Which was previously called Cook County?

9

A. Yes, sir.

10

Q. The old Cook County Hospital?

11

A. Yes, sir.

12

Q. And what period of time were you assigned as

13 an officer for the Department of Corrections in

14 External Operations?

15

A. Approximately two years.

16

Q. So between 1988 and 1990 was there a policy

17 in practice in regards to shackling hospitalized

18 detainees?

19

MR. SMITH: I'm going to object. The notice

20 of questions, the Rider on the 30(b)(6) is clear

21 that the time limitation is December 4, 2006, to

22 present. And if I knew you were going to start

23 asking questions from the mid-ages, I would have

24 certainly made the appropriate response.

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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14

1

I'm not going to sit here and object

2 to every question that you ask that is prior to

3 December 4th. You're the one that sent out the

4 Rider and the areas of the questions you wish to ask

5 the Superintendent.

6

MR. MORRISSEY: I'm asking him about his

7 experience as a 30(b)(6) designated person in

8 guarding hospitalized detainees. So I just want to

9 know what was the policy when he was a foot soldier,

10 when he was an officer.

11

MR. SMITH: I'm going to object, but you can

12 answer if you remember.

13 BY THE WITNESS:

14

A. I don't recall.

15 BY MR. MORRISSEY:

16

Q. In 1990 did your position change at the Cook

17 County Department of Corrections?

18

A. Yes, sir.

19

Q. And what was your new position?

20

A. I was assigned to the Receiving room.

21

Q. And did your title change?

22

A. No, sir.

23

Q. You were still a correctional officer?

24

A. Yes, sir.

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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15

1

Q. How long did you work as an officer in the

2 RCDC?

3

A. Approximately one year.

4

Q. In 1991 what was your new position?

5

A. I was promoted to sergeant.

6

Q. And did the place you worked or were

7 assigned change when you became a sergeant?

8

A. No, sir.

9

Q. You remained in the RCDC?

10

A. Yes, sir.

11

Q. For what period of time were you a sergeant

12 in the RCDC?

13

A. Until the -- about two and a half years.

14

Q. In approximately 1993 or 1994 did you change

15 positions?

16

A. Yes, sir.

17

Q. Did your title change?

18

A. Yes, sir.

19

Q. What was your new title?

20

A. I was promoted to lieutenant.

21

Q. And what was your new assignment?

22

A. Division 6.

23

Q. And what were your duties as a lieutenant in

24 Division 6?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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16

1

A. Basically overseeing the shift that I was

2 assigned to, the daily shiftly activities of that

3 particular shift.

4

Q. How long did you remain in Division 6?

5

A. Approximately a year.

6

Q. In 1995 did your title change?

7

A. No, sir.

8

Q. Did your position change?

9

A. Yes, sir.

10

Q. And what was your new position?

11

A. Division 5.

12

Q. For what period of time were you a lieutenant

13 in Division 5?

14

A. Approximately a year.

15

Q. What were your responsibilities in

16 Division 5?

17

A. The same as 6: oversee the shift activities

18 of the shift I was assigned to.

19

Q. In 1996 or 1997 did your title change?

20

A. Yes, sir.

21

Q. What was your new title?

22

A. Captain.

23

Q. Did your assignment change from Division 6 --

24

A. No, sir.

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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17

1

Q. -- for Division 5, rather.

2

A. No.

3

Q. You remained in Division 5 as a captain?

4

A. Yes, sir.

5

Q. For how long did you remain in Division 5 as

6 a captain?

7

A. Approximately a year.

8

Q. Approximately 1998?

9

A. Yes, sir.

10

Q. In 1998 did your title change?

11

A. Yes, sir.

12

Q. And what title did you receive?

13

A. Administrative captain.

14

Q. And did the unit that you were assigned to

15 change?

16

A. No, sir.

17

Q. You remained in Division 5?

18

A. Yes, sir.

19

Q. What were your responsibilities as

20 administrative captain?

21

A. The overall day-to-day operations of

22 Division 5.

23

Q. How long did you remain as an administrative

24 captain in Division 5?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

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18

1

A. The rest of the year.

2

Q. So approximately 1999 your title changed or

3 your position?

4

A. Both.

5

Q. And what was your title in 1999?

6

A. Captain.

7

Q. Oh, you were demoted?

8

A. Yes, sir.

9

Q. Did your pay decrease?

10

A. No, sir.

11

Q. Do you know why you lost the rank of

12 administrative captain?

13

A. No, sir.

14

Q. Did the division that you were assigned to

15 change?

16

A. Yes, sir.

17

Q. And what division were you assigned to?

18

A. Division 1.

19

Q. So how long did you remain in Division 1 as

20 a captain?

21

A. Approximately four months.

22

Q. And where was your new assignment?

23

A. Division 2.

24

Q. As a captain?

TOOMEY REPORTING (312) 853-0648

Plaintiffs' Exhibit 2

Page 18

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19

1

A. Yes, sir.

2

Q. During what period were you a captain in

3 Division 2?

4

A. Approximately four months.

5

Q. And this was in 2000?

6

A. Yes, sir.

7

Q. What was your role in Division 2 as a

8 captain?

9

A. Being in charge of the shift and shiftly

10 activities that I was assigned.

11

Q. Sometime in the year 2000 did you change

12 titles or position?

13

A. Yes, sir.

14

Q. And what was your new position?

15

A. Captain in Division 9.

16

Q. How long did you remain a captain in 9?

17

A. Approximately two years.

18

Q. Until about 2002?

19

A. Yes, sir.

20

Q. Okay. And in 2002 what -- did your title

21 change?

22

A. Yes, sir.

23

Q. What was your new title?

24

A. Administrative captain in Division 6.

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1

Q. Did your pay increase?

2

A. No, sir.

3

Q. What were your duties as administrative

4 captain in Division 6?

5

A. Oversaw the day-to-day operations of

6 Division 6.

7

Q. Okay. What years were you the

8 administrative captain in Division 6?

9

A. If I recall correctly, June of '01.

10

Q. Until when?

11

A. Approximately January of '02.

12

Q. In January of '02 did your title change?

13

A. Yes, sir.

14

Q. What was your new title?

15

A. Chief.

16

Q. Did your pay increase?

17

A. Yes, sir.

18

Q. What division were you in?

19

A. Division 6.

20

Q. What were your responsibilities as a chief

21 in Division 6?

22

A. Oversaw the day-to-day operations of

23 Division 6.

24

Q. How long did you remain as a chief in 6?

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1

A. Until approximately November of '02.

2

Q. In November of '02, tell me what your title

3 was.

4

A. I'm sorry, sir. I believe November of '01.

5

Q. In November of '01, did your title change

6 again?

7

A. Yes, sir.

8

Q. And what was your new title?

9

A. Superintendent.

10

Q. And what division were you made superintendent

11 of?

12

A. Division 11.

13

Q. Was that at the time Division 11 opened?

14

A. No.

15

Q. How long were you superintendent of Division

16 11?

17

A. Approximately two and a half years.

18

Q. When was the start date and when did you

19 change?

20

A. I believe November of '01 until April of '03.

21

Q. In April of '03, did your title remain the

22 same?

23

A. Yes, sir.

24

Q. Did your position change?

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1

A. Yes, sir.

2

Q. And where were you then assigned?

3

A. External Operations.

4

Q. In 2003 what areas were you responsible for

5 as superintendent?

6

A. All of the exterior posts of the CCDOC, the

7 transportation unit, the outlying hospital units,

8 the K-9 unit, and the sort team.

9

Q. Now, were there any hospitals that were

10 considered external posts?

11

A. Yes, sir.

12

Q. Each of these areas that you described:

13 the sort team, the K-9 unit, transportation unit,

14 and external post, and I believe there was one other

15 that I missed.

16

A. The actual post, outside post before entering

17 the CCDOC.

18

Q. Were there five units under the External

19 Operations group?

20

A. Yes, sir.

21

Q. Were they called "units" at that time in

22 2003?

23

A. No, sir.

24

Q. What were they called to identify those?

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1

A. Divisions.

2

Q. Divisions. So there was a K-9 division and

3 a sort division; would that be correct?

4

A. Yes, sir.

5

Q. And there would be an external post division?

6

A. Exact wordage, I don't know. External

7 Operations was a division, and the entities involved

8 were units.

9

Q. Was there a unit for external post?

10

A. Yes, sir.

11

Q. For what period of time were you the

12 superintendent of External Operations?

13

A. Until approximately March of the following

14 year.

15

Q. Between 2003 and 2004 did each of these

16 units that you described as part of External

17 Operations have a unit commander or leader?

18

A. Yes.

19

Q. Do you recall who was the unit leader in

20 2003 and 2004 of the external post unit?

21

A. Director Dennis Andrews.

22

Q. Is a director at a higher level than a

23 superintendent?

24

A. Yes, sir.

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1

Q. So I guess my question was misunderstood.

2

External Operations had five units;

3 correct in 2003 or 2004?

4

A. Yes, sir.

5

Q. My question was directed to whether each of

6 these units had a supervisor that was responsible

7 for the unit.

8

A. Yes, sir.

9

Q. And between 2003 and 2004, who was the unit

10 leader for the external post?

11

A. There were two chiefs assigned to the

12 division, which was Chief Brown and Chief Turner.

13

Q. Is that Daniel Brown?

14

A. No, sir.

15

Q. What was Mr. Brown's first name?

16

A. Joseph.

17

Q. And what was Mr. Turner's name?

18

A. George.

19

Q. You mentioned in 2004 -- I'm sorry. Strike

20 that.

21

Was there a central location where

22 the chiefs of the external post between 2003 and

23 2004 worked at?

24

A. Yes, sir.

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1

Q. Where would that have been?

2

A. That was Building 5 of the DCSI unit.

3

Q. And is that located at 27th and California?

4

A. I don't know the exact address, but it's

5 the 31st Street entrance.

6

Q. And Chief Brown and Chief Turner in 2003

7 and 2004 would been directly responsible for the

8 correctional officers who were assigned to Cook

9 County or Stroger Hospital; correct?

10

A. Yes.

11

MR. SMITH: You know, I'm going to object.

12 Again, we're outside of the scope of this

13 deposition.

14

I don't mind some, you know, simple

15 questions, but you're really dwelling on this phase

16 of questions between 2003 and 2004.

17

MR. MORRISSEY: I'm trying to get up to that

18 2006 date.

19

MR. SMITH: Okay. What happened on June 1st

20 of 2006 then, okay? How about that question?

21 BY MR. MORRISSEY:

22

Q. In 2004, your position changed again?

23

A. Yes, sir.

24

Q. And in 2004 what was your new position?

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1

A. Superintendent of Division 10.

2

Q. What period were you a superintendent of

3 10?

4

A. Approximately March of '06.

5

Q. In March of '06 did your title change?

6

A. No, sir.

7

Q. In March of '06 did your position change?

8

A. Yes, sir.

9

Q. What was your new position?

10

A. Superintendent of External Operations.

11

Q. For what period of time in '06, in March

12 of '06 to the present were you Superintendent of

13 External Operations?

14

A. Until August of '08.

15

Q. In March of 2006 what was -- was there an

16 organizational chart for the various units that

17 were in External Operations?

18

A. Yes, sir.

19

Q. And were the different groups within

20 External Operations in March of '06 broken down

21 into units?

22

A. Yes, sir.

23

Q. All right. Describe the various units in

24 March of 2006 for the External Operations.

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1

A. K-9 unit, transportation unit, sort unit,

2 External Operations posts, and outlying hospitals.

3

Q. When you were first superintendent of 2003,

4 is it correct that there was not a unit within the

5 External Operations for outlying hospitals?

6

A. No, sir.

7

Q. Is that correct? In 2003 and 2004 was there

8 a unit within External Operations that was

9 exclusively for outlying hospitals?

10

A. Yes, sir.

11

Q. In March of 2006 for what outlying hospitals

12 did External Operations provide security?

13

A. Any hospital within Cook County.

14

Q. In March of 2006 through August of 2008 were

15 you -- did you have a particular office where you

16 conducted the External Operations out of?

17

A. Yes, sir.

18

Q. Where was that office located?

19

A. Building 5 of the DCSI unit.

20

Q. Now, in March of 2006, besides yourself

21 were there other supervisors in the unit of outlying

22 hospitals?

23

A. Yes, sir.

24

Q. What were the names of the other supervisors

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1 in March of 2006 in order of rank?

2

A. As far as I can recall, Chief Brown. I

3 don't recall all the names, but I can give you the

4 commander assignments.

5

Q. That would be fine.

6

A. You would have one captain for each shift,

7 which would be three captains.

8

Q. And the captains at that time were?

9

A. I don't recall.

10

Q. And were there also lieutenants assigned to

11 the hospital unit in March of 2006?

12

A. Yes, sir.

13

Q. How many lieutenants were assigned in 2006

14 to the hospital unit?

15

A. They would fall under the captain. At any

16 time you could have two lieutenants assigned to the

17 Ex Op's unit.

18

Q. Two lieutenants assigned to the unit for the

19 hospital unit, correct, at any one time?

20

A. The commander who would be -- excuse me.

21

The commander would be in charge of

22 the outside posts at the CCDOC and also the outlying

23 hospitals.

24

Q. So the hospital unit included both the

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1 hospitals where the detainees were being treated at

2 any one time plus the external post for the jail --

3

A. Yes, sir.

4

Q. -- in March of 2006?

5

And there was one commander under you

6 that was in charge of all those areas?

7

A. Two.

8

Q. And one was Chief Brown; correct?

9

A. Yes, sir.

10

Q. In addition to Chief Brown, there were shift

11 captains; correct?

12

A. Yes, sir.

13

Q. And the shift captain may or may not have

14 been lieutenants? A lieutenant could also be a shift

15 commander?

16

A. Correct.

17

Q. And the shift commanders would be responsible

18 not only for the external post of the jail but also

19 the hospital units?

20

A. Yes, sir.

21

Q. And then below the captains and the

22 lieutenants, was there any other supervisors for the

23 hospital units?

24

A. Yes, sir.

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1

Q. What rank would that have been?

2

A. Sergeant.

3

Q. On each shift how many sergeants were there

4 in March of 2006?

5

A. Approximately five.

6

Q. Were these sergeants located outside of

7 Building 5 when they were assigned the different

8 shifts?

9

A. No, sir.

10

Q. They also would be stationed in Division 5?

11

A. No, sir.

12

Q. Where would they be stationed?

13

A. The basement of Division 9 is the radio room.

14

Q. Now, the captains, the shift captains, and

15 the shift lieutenants, would those also be housed

16 out of Division 9's radio room?

17

A. Yes, sir.

18

Q. And the sergeants would be based out of the

19 radio room; correct?

20

A. Yes, sir.

21

Q. Now, in March -- and was that true during

22 the entire time from 2006 to 2008, August of 2008,

23 when you were the Superintendent of External

24 Operations, all the supervisors were either based

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1 out of Division 5 or the radio room in Division 9?

2

A. You would also have a supervisor assigned

3 to Stroger Hospital.

4

Q. Would that be on each shift?

5

A. Yes, sir.

6

Q. Was there a room or location in Stroger

7 Hospital between March of 2006 and August of 2008

8 that the supervisor would be assigned?

9

A. Yes, sir.

10

Q. What room is that?

11

A. From '06 until approximately '07, the CCDOC

12 hospital office was located in the Fantus Clinic

13 building at Stroger Hospital.

14

Q. Was that the old Fantus Clinic building?

15

A. Yes, sir.

16

Q. Which was then -- was previously Cook

17 County?

18

A. Yes, sir.

19

Q. So the office in between 2006 to 2007 was

20 not in the modern Stroger building?

21

A. Correct.

22

Q. And sometime in 2007 the location for the

23 Stroger operation changed?

24

A. Yes, sir.

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1

Q. In what month in 2007?

2

A. I don't recall.

3

Q. Where was the location in 2007?

4

A. The new location is in the main building in

5 an area with the pharmacy department.

6

Q. Now, you mentioned each shift would have a

7 supervisor at Stroger between 2006 and August of

8 2008; correct?

9

A. Correct.

10

Q. What would the title be for that supervisor?

11

A. I'm sorry. Can you repeat?

12

Q. What would the supervisor's rank be that

13 was assigned to Stroger Hospital during each shift?

14

A. Sergeant.

15

Q. How many correctional officers in a normal

16 day would be assigned to Stroger between March of

17 2006 and August of 2008?

18

A. It would vary based on the inmate population.

19

Q. During that period of time, and that's what

20 I'm asking you about now, between March of 2006 and

21 August of 2008 what was the highest prison -- what

22 was the highest prison hospitalization rate for that

23 period of time?

24

MR. SMITH: Do you know?

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1

THE WITNESS: I don't know that.

2 BY MR. MORRISSEY:

3

Q. At any one time during the period between

4 March of 2006 and August of 2008, what was the

5 greatest number of inmates that were hospitalized

6 at Stroger to the best of your recollection,

7 approximately?

8

A. Approximately 30.

9

Q. And if you had 30 hospitalized detainees at

10 any one time at Stroger, how many guards would be

11 assigned then to the Stroger detail?

12

A. It could have been as high as 60.

13

Q. On each shift?

14

A. Yes, sir.

15

Q. Now, in addition to John Stroger Hospital,

16 were correctional officers assigned to Mt. Sinai

17 Hospital?

18

A. Yes, sir.

19

Q. Was there a regular detail to Mt. Sinai

20 Hospital from the CCDOC?

21

A. No, sir.

22

Q. On an average day during that period of time,

23 how many guards would be assigned to the Mt. Sinai

24 Hospital?

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1

A. Again, it would vary on if any inmate was

2 being treated at Mt. Sinai Hospital.

3

Q. On a day-to-day basis was there a

4 superintendent that was always responsible for

5 inmates at Mt. Sinai Hospital?

6

A. If they were being housed there, yes.

7

Q. To your knowledge, did pregnant women who

8 were in labor get sent to Mt. Sinai Hospital?

9

MR. SMITH: I'm sorry?

10

MR. MORRISSEY: To his knowledge, were

11 pregnant women that were in labor sent from the

12 CCDOC to Mt. Sinai Hospital.

13 BY THE WITNESS:

14

A. I don't recall.

15 BY MR. MORRISSEY:

16

Q. Do you know if pregnant women who were in

17 labor were sent to any other hospital besides

18 Stroger during the period from March of 2006 to the

19 time you left in August of 2008?

20

A. Yes.

21

Q. What other hospitals in addition to Stroger

22 were pregnant women sent to?

23

A. I don't recall.

24

Q. Was there any special training given to the

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1 guards who were assigned to the hospital unit during

2 the period from March 2006 to August of 2008 to your

3 knowledge?

4

A. I'm sorry, sir?

5

MR. MORRISSEY: Can you repeat the question?

6

(WHEREUPON, the record was read

7

by the reporter as requested.)

8 BY THE WITNESS:

9

A. No, sir.

10 BY MR. MORRISSEY:

11

Q. Prior to 2006, do you know if there was any

12 special training -- let me correct that.

13

Prior to 2006, do you know whether or

14 not the guards that were assigned to the hospital

15 unit under External Operations were given any

16 different training than the correctional officers

17 that were assigned to the CCDOC?

18

MR. SMITH: Objection, beyond the scope.

19 BY MR. MORRISSEY:

20

Q. You may answer.

21

A. No, sir.

22

Q. Do you know whether or not from March of

23 2006 to the present whether there have been any

24 special in-house training programs for guards that

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1 are assigned to the hospital unit?

2

A. No, sir.

3

Q. From March of 2006 to the present, are

4 there any General Orders or Departmental Orders that

5 specifically apply to External Operations?

6

A. Yes, sir.

7

Q. Are the General Orders -- what are the

8 nature of these orders?

9

Are they called General Orders or

10 Departmental Directives or Memorandums? Can you

11 explain?

12

A. Within the unit itself, they have what is

13 called a standing -- I'm sorry, Standard Operating

14 Procedure.

15

Q. Who was responsible for issuing the

16 Standard Operating Procedures?

17

A. They are authorized by the Assistant

18 Executive Director of Operations.

19

Q. Were any -- these are written documents,

20 correct, special operating procedures?

21

A. Yes.

22

Q. Standard Operating Procedures, they're

23 written documents?

24

A. Yes.

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1

Q. From March of 2006 to the present, what

2 Assistant Executive Director has been in charge of

3 the External Operations?

4

A. I can go from present back to -- I don't

5 have the exact date. Uhm, Assistant Director

6 Gilberto Romero.

7

Q. For what period was Assistant Executive

8 Director Romero in charge of External Operations?

9

A. Again, from present back to -- I don't

10 recall.

11

Q. Who preceded Director Romero?

12

A. Assistant Executive Director Dennis Andrews.

13

Q. During what period of time was Director

14 Andrews responsible for External Operations?

15

A. I can't give you definite dates.

16

Q. Was it during the period from 2006 to 2009,

17 sometime in that period?

18

A. Yes, sir.

19

Q. Is Dennis Andrews still with the Department?

20

A. Yes, sir.

21

Q. Would the Standard Operating Procedures also

22 be reviewed by the Executive Director to your

23 knowledge?

24

A. Not to my knowledge. I'm sorry. If I can --

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1 I don't know.

2

Q. Do you know if the Standard Operating

3 Procedures would be reviewed by the Sheriff of

4 Cook County, for External Operations?

5

A. I don't know.

6

Q. Were there any Standard Operating Procedures

7 in effect for hospitalized detainees during the

8 period from March of 2006 to the present?

9

A. Yes, sir.

10

Q. What Standard Operating Procedures were in

11 effect in regards to the policies and procedures for

12 hospitalized detainees during that period?

13

We're talking about March 2006 to the

14 present.

15

A. There is a Standard Operating Procedure

16 itself for any detainees housed at any hospital

17 within Cook County.

18

Q. I'm showing you what is going to be marked

19 as Plaintiff's Exhibit No. 2, Policy No. 32,

20 effective date October 2008, related to General

21 Order 9.44.

22

At the time that you came into the

23 unit in 2006 -- well, take a look at that document

24 for a moment first.

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1

(WHEREUPON, said document was

2

marked Plaintiff's Exhibit

3

No. 2, for identification,

4

as of 05-21-09.)

5 BY MR. MORRISSEY:

6

Q. Do you recognize that document, which is

7 Policy 32 issued October of 2008?

8

A. No, sir.

9

MR. MORRISSEY: I'm showing you what is

10 going to be marked as Exhibit No. 3.

11

(WHEREUPON, said document was

12

marked Plaintiff's Exhibit

13

No. 3, for identification,

14

as of 05-21-09.)

15 BY MR. MORRISSEY:

16

Q. It's Policy No. EO-32, effective date

17 July 25, 2006, related to G.O. 12.2.

18

Do you recognize that document?

19

A. Yes, sir.

20

Q. When that document was issued, did you sign

21 that order?

22

A. Yes, sir.

23

Q. Do you know who approved the order? Your

24 superintendent at that time was Dennis Andrews?

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1

A. Assistant Director.

2

Q. Okay. Assistant Director Andrews, do you

3 know if he approved that document, Exhibit 3?

4

A. I don't recall.

5

Q. Other than Exhibit 3, were there any other

6 written documents in regards to hospital policies

7 and procedures that were in effect in March -- in

8 the year 2006 up to the time you left in 2008?

9

A. Not that I recall.

10

Q. Was there a document that existed prior to

11 July of 2006 in regards to the hospital policies and

12 procedures?

13

A. Yes, sir.

14

Q. Do you know whether or not that document

15 would still exist?

16

MR. SMITH: I'm going to object. It's

17 outside of the scope.

18 BY THE WITNESS:

19

A. No, sir.

20 BY MR. MORRISSEY:

21

Q. Any other -- and was -- how are the -- how

22 was Exhibit 3 -- how do -- strike that.

23

Did the correctional officers and

24 supervisors that were assigned to the External

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1 Operations receive a copy of Exhibit 3?

2

A. Yes, sir.

3

Q. How would they have received a copy of

4 Exhibit 3?

5

A. They are handed out the SOP and sign for

6 that they've received a copy.

7

Q. Now, other than Exhibit 3, were there any

8 other written policies or procedures for correctional

9 officers and supervisors that were assigned to the

10 hospital unit of External Operations?

11

THE WITNESS: I'm sorry. Can you read that?

12

(WHEREUPON, the record was read

13

by the reporter as requested.)

14

MR. SMITH: I'm going to object. He already

15 answered no.

16 BY THE WITNESS:

17

A. No, sir.

18 BY MR. MORRISSEY:

19

Q. Were there any written memos that were

20 drafted and given to supervisors and correctional

21 officers assigned to the hospital unit between

22 March 2006 to August of 2008 that you're aware of?

23

A. I don't recall.

24

Q. Are there any reports that are prepared

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42

1 by officers that are assigned to the hospital unit

2 during their course of duty on each day?

3

A. Yes, sir.

4

Q. What types of reports are prepared by

5 correctional officers that are detailed to the

6 hospital unit during their shift?

7

A. Not recalling every report, there's a

8 basic attendance report of officers on duty.

9 There is a report of inmates that are housed to

10 outlying hospitals throughout Cook County as far as

11 I can recall.

12

Q. Okay. Showing you what will be marked as

13 Exhibit No. 4, it's a document entitled Cook County

14 Sheriff/Department of Corrections External

15 Operations Daily Detainee Hospitalization Checklist.

16

(WHEREUPON, said document was

17

marked Plaintiff's Exhibit

18

No. 4, for identification,

19

as of 05-21-09.)

20 BY MR. MORRISSEY:

21

Q. Looking at Exhibit No. 4, do you recognize

22 that document?

23

A. Yes, sir.

24

Q. What is that document?

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1

A. It's a sheet that stays at the room

2 assigned that the inmate is at, with the officer

3 providing security over that inmate.

4

Q. Is this prepared on a shift-by-shift basis?

5

A. It's prepared when an inmate arrives at a

6 hospital.

7

Q. For each day that an inmate is housed in a

8 hospital room, is there just one sheet checklist

9 prepared for that inmate?

10

A. The daily checklist is one sheet for a

11 24-hour period.

12

Q. Is there any spot on that report for each

13 of the guards during that 24-hour period that is

14 assigned to guard a hospital detainee?

15

A. Yes, sir.

16

Q. Where is that physically on this form?

17

A. The lower part of the sheet, there's three

18 boxes with the different shifts of the officer

19 assigned for that inmate.

20

Q. What is the purpose of this form?

21

A. The purpose of the form is for the officer

22 to record any type of activity for the inmate per

23 that shift.

24

Q. Is there a spot on this form for the name of

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1 the supervisor at the hospital?

2

A. Yes, sir.

3

Q. Where is that on this form? What box is

4 that?

5

A. The last box is at the bottom of the page.

6

Q. The supervisor would be a sergeant; correct?

7

A. It could be any rank of a supervisor.

8

Q. Now, are there any rules or regulations

9 that require that a supervisor make a check of a

10 detainee during a shift?

11

A. Yes, sir.

12

Q. How frequently do supervisors have to check

13 the status of a detainee who is hospitalized?

14

A. At least once a shift.

15

Q. What is the reason for that?

16

A. It's the supervisor's responsibility to

17 check both the officer is performing his function

18 as well as that the inmate is secured properly

19 according to SOPs.

20

Q. Is this an official report prepared for the

21 Sheriff of Cook County?

22

Let me rephrase the question.

23

MR. SMITH: Do you know the question?

24

MR. MORRISSEY: Let me rephrase.

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1 BY MR. MORRISSEY:

2

Q. Is this a business report that's prepared

3 by the supervisors and correctional officers on a

4 daily basis for all three shifts in which a

5 hospital detainee is housed?

6

Do you understand the question?

7

A. No, sir.

8

Q. Is this a form that your correctional

9 officers and supervisors are required to prepare

10 each day under you as the Superintendent of

11 External Operations?

12

A. Yes, sir.

13

Q. Are these forms kept by you or other

14 supervisors on a regular basis?

15

A. Yes, sir.

16

Q. Where are they maintained?

17

A. In a storage area at the CCDOC.

18

Q. For what period of time are these documents

19 stored at the CCDOC?

20

A. There's a procedure of documents that are

21 kept on site at the CCDOC and all others that are

22 kept at 23rd and Rockwell, referred to as the

23 warehouse.

24

Q. Do you know how long they are stored at the

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46

1 CCDOC before they are sent to the warehouse?

2

MR. SMITH: If you know.

3 BY THE WITNESS:

4

A. I don't know.

5 BY MR. MORRISSEY:

6

Q. On this form is there a place, is there an

7 indication whether the detainee who is hospitalized

8 is handcuffed?

9

MR. SMITH: I'm sorry, Tom. I didn't hear

10 that.

11

MR. MORRISSEY: Would you read that back?

12

(WHEREUPON, the record was read

13

by the reporter as requested.)

14 BY THE WITNESS:

15

A. Yes, sir.

16 BY MR. MORRISSEY:

17

Q. Where is that?

18

A. The top quarter of the page has three boxes

19 for if handcuffs were removed for meals or any other

20 reason.

21

Q. Is it important -- was it your policy and

22 the Department's policy for a correctional officer

23 assigned to guard a hospitalized detainee to make

24 a note every time the handcuffs were removed?

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1

A. Yes, sir.

2

Q. And was the officer required to report that

3 on the form which is designated as Plaintiff's

4 Exhibit No. 4?

5

A. Yes, sir.

6

Q. Looking at Exhibit No. 3, Roman numeral III,

7 is there a definition of high-risk inmates?

8

A. Yes, sir.

9

Q. Was it the policy and practice at the Cook

10 County Department of Corrections to consider all

11 detainees who are transported, housed, or otherwise

12 located outside of the CCDOC complex to be

13 considered high-risk inmates?

14

A. Yes, sir.

15

Q. Would that include inmates that were

16 hospitalized?

17

A. Yes, sir.

18

Q. Why were all detainees that were

19 hospitalized at -- hospitalized under the custody

20 of the Cook County Sheriff considered high-risk

21 inmates?

22

A. Leaving from the secure facility at the

23 CCDOC, you've now placed inmates in the general

24 public which has heightened the classification of

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1 the inmate.

2

Q. From the time you were the external

3 director in March of 2006 until the time you left,

4 was it the policy and practice of the Cook County

5 Sheriff to have a guard assigned to each

6 hospitalized detainee?

7

A. Yes, sir.

8

Q. Would the guard be present in the room of

9 each hospitalized detainee?

10

A. Yes, sir.

11

Q. Would the guard be armed?

12

A. Yes, sir.

13

Q. At Stroger Hospital, are more than one

14 patient assigned to a room?

15

A. Yes, sir.

16

Q. Are patients that are under the custody of

17 the Cook County Sheriff assigned to particular

18 floors or rooms at Stroger Hospital?

19

A. No, sir.

20

Q. Could a person that's under the custody and

21 control of the Cook County Sheriff as an inmate be

22 assigned to a room with a patient that is not in the

23 custody of the Sheriff?

24

A. At a time there was.

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1

Q. Has that practice or policy changed to your

2 knowledge?

3

A. Yes, sir.

4

Q. When did that practice and policy change?

5

A. I don't recall exactly the date.

6

Q. Was it during the time you were External

7 Operations Superintendent?

8

A. Yes, sir.

9

Q. What was the change in policy?

10

A. The change in policy that was made was that

11 inmates assigned to hospitals were either roomed

12 together, housed alone -- if this is the same -- or

13 placed in a single room.

14

Q. Do you know whether that was in effect

15 during the period of time from December 4, 2006, to

16 the present?

17

A. I don't recall.

18

Q. Was there a written statement or policy that

19 was issued that required hospitalized detainees to be

20 assigned to individual rooms?

21

MR. SMITH: Do you know?

22

THE WITNESS: I don't know.

23 BY MR. MORRISSEY:

24

Q. To your knowledge, who would have -- do you

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1 know who was responsible for creating that policy

2 of just assigning hospitalized detainees to single

3 rooms at Stroger?

4

A. Myself.

5

Q. Do you know why you effectuated the policy

6 of just assigning hospitalized detainees to their

7 own room?

8

A. It was my recollection, to protecting the

9 citizens, staff of Cook County, and the employees

10 at Cook County Hospital to be more safeguarded by

11 placing the inmates in a more isolated, secured

12 area.

13

Q. Was there any reason or any cause for your

14 change in the policy of isolating hospitalized

15 inmates?

16

A. Again, my belief, removing any inmate from

17 the confines of the CCDOC is a more heightened risk

18 of possible unusual occurrence with the general

19 public.

20

Q. When you were -- during the period of time

21 of December 4, 2006, to the present, was there a

22 policy and practice of shackling hospitalized

23 detainees?

24

A. Yes, sir.

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1

Q. Did that include older detainees?

2

A. Yes, sir.

3

Q. Did it include paralyzed detainees?

4

A. Yes, sir.

5

Q. Did it include detainees that were

6 pregnant?

7

A. Yes, sir.

8

Q. Did it include detainees that were in

9 labor?

10

A. No, sir.

11

Q. How were hospitalized detainees shackled

12 from December of 2006 to the present?

13

MR. SMITH: In general?

14

MR. MORRISSEY: Yes.

15

MR. SMITH: Any type of inmate?

16

MR. MORRISSEY: Right.

17 BY MR. MORRISSEY:

18

Q. Was there a practice or policy from December

19 of 2006 to the present in regards to how inmates

20 were shackled that were hospitalized?

21

A. I can answer yes until August of '08 when I

22 left the unit.

23

MR. SMITH: And that's what his question is.

24

THE WITNESS: Okay.

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1

MR. SMITH: Until August of '08.

2

THE WITNESS: Yes, sir.

3 BY MR. MORRISSEY:

4

Q. What was the manner in which they were

5 shackled during that period of time?

6

A. The restraints protocol was a leg shackle

7 on one leg and the other end of the shackle secured

8 to a secure portion of the bed, and the use of a

9 handcuff with a -- it's referred to as a "blue box"

10 over it with a belly chain, and that is attached to

11 the opposite end of the inmate's arm and to the

12 secure part of the bed frame.

13

Q. Now, can you describe what a belly chain

14 is?

15

A. A belly chain is a waist chain that the

16 handcuffs and blue box attach to the waist of a

17 detainee.

18

Q. What is a blue box?

19

A. A blue box is a device that protects the

20 locking mechanism of the handcuffs that cannot be

21 reached to alter the locking mechanism.

22

Q. Does that have a way of electronically

23 monitoring a detainee, the blue box?

24

A. No, sir.

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1

Q. The waist chain, or belly chain, does that

2 surround the person's waist?

3

A. Yes, sir.

4

Q. What is the purpose for the waist chain?

5

A. Again, in transporting an inmate from the

6 CCDOC complex, it is again a restraint safeguarding

7 the staff and the general public from an unusual

8 occurrence that would be caused by the inmate.

9

Q. Does that waist chain remain on the

10 hospitalized detainees when they're in their beds?

11

A. Not on the inmate, but it's from the

12 handcuffs to the bed frame.

13

Q. How is this policy and practice of shackling

14 hospitalized detainees conveyed to the guards that

15 are assigned to hospitals?

16

A. Through the Standard Operating Procedure and

17 at roll calls.

18

Q. Is this a difference in the External

19 Operations between the classification of "active

20 labor" and "labor"?

21

A. I don't recall.

22

Q. Have you ever heard the term "active labor"?

23

A. Yes, sir.

24

Q. And what do you understand active labor to

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1 mean?

2

A. An individual is in the process of delivering

3 a baby.

4

Q. What do you mean by "the process of

5 delivering a baby"?

6

A. The beginning of the, repeating again, the

7 person beginning to -- the baby from leaving the

8 womb to entering the world.

9

Q. So that would be right before the delivery

10 of the baby, you would consider active labor?

11

A. I don't know.

12

Q. Well, you just described the period when

13 the baby is leaving the womb and entering the world

14 as active labor; is that correct?

15

A. Yes, sir.

16

Q. How do you describe "labor"?

17

A. To my knowledge, labor would also be the

18 same.

19

Q. During the period between -- what is the

20 penological reason for classifying all detainees

21 as high-risk inmates?

22

A. Inmates from outside the CCDOC complex?

23

Q. Right.

24

A. Again, it would be the lesser security of

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55

1 the confines of the CCDOC moving an inmate into the

2 area reached by the general public or staff members,

3 wherever that inmate is.

4

Q. What was the penological reason for

5 shackling all detainees who were hospitalized at

6 Stroger Hospital?

7

MR. SMITH: Well, I'm going to object. He's

8 already answered several times.

9

MR. MORRISSEY: I'm asking in particular in

10 regards to the reason why hospitalized detainees

11 were shackled. What is the penological reason for

12 shackling them?

13

MR. SMITH: Tom, he's already answered it.

14 He said that once you're outside of the confines of

15 the jail --

16

MR. MORRISSEY: No, he didn't.

17

MR. SMITH: -- it's for security reasons.

18

MR. MORRISSEY: No. He answered why

19 they're considered high risk. I'm asking him now

20 the follow-up question why, what the penological

21 reason was for shackling detainees that are

22 hospitalized.

23

MR. SMITH: Do you understand that question?

24

THE WITNESS: No, sir.

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1 BY MR. MORRISSEY:

2

Q. Okay. You've described the process in

3 which detainees that are hospitalized are shackled.

4 Their leg and their arm are shackled to a bed;

5 correct?

6

A. Correct.

7

Q. I'm asking you to provide the penological

8 reason why that is done.

9

MR. SMITH: Do you understand the meaning

10 behind or definition of "penological"?

11

THE WITNESS: No, sir.

12

MR. SMITH: You have to rephrase it.

13 BY MR. MORRISSEY:

14

Q. All hospitalized detainees that are assigned

15 to a room have an armed guard in the room with them;

16 correct?

17

A. Correct.

18

Q. And that's for security reasons; correct?

19

A. Correct.

20

Q. Why are all hospitalized detainees required

21 to be shackled if there's a security guard -- if

22 there's a correctional officer who is armed that's

23 assigned inside the room with the detainee?

24

What correctional reason is there to

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1 provide the shackling?

2

MR. SMITH: He's already answered.

3

MR. MORRISSEY: No, he hasn't.

4

MR. SMITH: His answer stands.

5 BY MR. MORRISSEY:

6

Q. You can answer.

7

MR. SMITH: For extra security outside the

8 compound.

9

MR. MORRISSEY: He can answer it. You don't

10 need to answer it.

11 BY MR. MORRISSEY:

12

Q. Can you answer it?

13

A. Again, it would be for an inmate leaving the

14 secure confines of the CCDOC entering an area of the

15 general public, uhm, being in the custody of the

16 Sheriff, the officer is taking all precautions to

17 protect, again, the staff, general public, and the

18 officer's safety themselves.

19

Q. Is that in order to prevent the inmate from

20 fleeing, that a person that's in a hospital bed with

21 an armed guard would also have to be shackled?

22

A. It could be, yes.

23

Q. Any other reasons?

24

A. Yes, sir.

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58

1

Q. What other reasons?

2

A. Again, preventing harm to the officer,

3 staff, anyone that would be in close proximity

4 of that detainee that is now not confined at

5 the CCDOC.

6

Q. Is it your position that all women that were

7 in labor from either Division 3, that came either

8 from Division 3 -- strike that.

9

As the head of External Operations,

10 were you aware of a program called the MOM's program?

11

A. Yes, sir.

12

Q. What is the MOM's program?

13

A. All I can -- my knowledge of the Mom's

14 program is, it's a program that has to do with

15 pregnant females that are remanded to the custody

16 of the Sheriff, in helping them deal with their

17 pregnancy.

18

Q. Do you know in 2006 what person within the

19 Sheriff's Office was in charge of the MOM's program?

20

A. No, sir.

21

Q. As head of External Operations, were you

22 responsible for guarding the women that were assigned

23 to the MOM's program off the CCDOC campus?

24

A. Yes, sir.

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59

1

Q. Do you know what unit was responsible

2 within the External Operations for monitoring the

3 women that were assigned to the MOM's program?

4

A. If the individual was at any hospital

5 within Cook County, it would be the hospital unit.

6

Q. Do you know that the women that were

7 assigned to the MOM's program were housed at

8 Haymarket?

9

A. No, sir.

10

Q. Within your External Operations, were you

11 responsible for providing security for the women

12 that were housed off campus, off the CCDOC jail

13 complex?

14

MR. SMITH: Objection, form of the question.

15 Where off campus?

16

MR. MORRISSEY: Well, at the Haymarket

17 Center.

18 BY MR. MORRISSEY:

19

Q. Was your unit in charge of providing

20 security at the Haymarket Center for women detainees

21 in the MOM's program?

22

A. No, sir.

23

Q. Do you know a person by the name of

24 McDermott who works for the Sheriff?

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1

A. I've heard the name, yes, sir.

2

Q. Do you know if he's in charge of the women's

3 program at the Department of Corrections?

4

A. No, sir.

5

Q. Do you know a Ms. Jones who works for the

6 Sheriff?

7

A. No, sir.

8

Q. Do you know a Director Black who works for

9 the Sheriff?

10

A. Yes, sir.

11

Q. What's Director Black's first name?

12

A. I believe it's Jennifer.

13

Q. Is she assigned to the MOM's program to your

14 knowledge?

15

A. To my knowledge, yes.

16

Q. Do you remember where her office is?

17

A. No, sir.

18

Q. Do you know a Kimberly Proffitt?

19

A. I'm sorry?

20

Q. A Kimberly Proffitt?

21

A. No, sir.

22

Q. Do you know a Laurie Turner or a Laurie

23 Jones?

24

A. No, sir.

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61

1

Q. Do you know what Director Black's position

2 is with the Sheriff?

3

A. No, sir.

4

Q. Do you have personal knowledge that women

5 that were assigned to Division 3 at times were

6 pregnant?

7

A. Yes, sir.

8

Q. Was your unit, External Operations, at any

9 point in time responsible for transporting women

10 that were assigned to Division 3 who went into

11 labor either to Stroger or another hospital?

12

A. Yes, sir.

13

Q. During what period of time did External

14 Operations have a role in transporting women who

15 were pregnant in Division 3 to areas hospitals?

16

A. Anytime that a doctor from Cermak Hospital

17 notified the External Operations radio room that a

18 female had to be transported to an outlying

19 hospital.

20

Q. Would the radio communication -- what level

21 within Cermak Health Services would relay that

22 information, what type of person at Cermak Health

23 Services would relay that information to External

24 Operations?

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1

A. I'm not sure.

2

Q. Within your External Operations, you

3 mentioned that the radio room would receive calls

4 from Cermak for transportation?

5

A. Yes, sir.

6

Q. And were there correctional officers

7 assigned to the radio room?

8

A. Yes, sir.

9

Q. Were there logs maintained by the radio

10 operator for calls from Cermak Health Services?

11

A. There's a leg kept of the movements of a

12 detainee from area to an outlying hospital.

13

Q. What is that log called?

14

A. Movement Log.

15

Q. Are those Movement Logs kept in the regular

16 course of business?

17

A. Yes, sir.

18

Q. How long are they kept?

19

A. Again, they're kept on site for up to a year

20 and then moved over to our warehouse at 23rd and

21 Laflin.

22

Q. Is it easy for you to request the logbook

23 from 2007 if you did as a superintendent?

24

A. Yes, sir.

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63

1

Q. How long would it take you if you as a

2 superintendent requested a Movement logbook to be

3 brought to your office for the year 2007?

4

MR. SMITH: I'm going to object to that

5 question.

6 BY MR. MORRISSEY:

7

Q. You can answer.

8

MR. SMITH: He doesn't know how long it will

9 take.

10

MR. MORRISSEY: Well, I'm asking.

11

MR. SMITH: How can he --

12

MR. MORRISSEY: I'm asking him.

13

MR. SMITH: -- possibly know how long it's

14 going to take another person?

15

MR. MORRISSEY: I'm asking him.

16

MR. SMITH: Approximately.

17 BY THE WITNESS:

18

A. Approximately three days.

19 BY MR. MORRISSEY:

20

Q. What information is contained in the Movement

21 logs?

22

A. To the best of my recollection, the inmate's

23 name, number -- ID number, I'm sorry, bond amount,

24 next court date.

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64

1

Q. Is the condition of the detainees being

2 moved to the hospital get reported on the Movement

3 Log?

4

A. If reported by Cermak.

5

Q. So Cermak, if the call from Cermak to the

6 radio operator was that Mary Jones needs to be

7 transported to Stroger Hospital because she's in

8 labor, that would be put on the Movement Log?

9

A. Possibly, yes.

10

Q. Are there different modes of transportation

11 for inmates that are moved from the jail to the

12 hospital by External Operations?

13

A. Yes, sir.

14

Q. What different means of transporting

15 detainees from the jail to the hospital are

16 available?

17

A. By squad car, ATI ambulance, Chicago Fire

18 ambulance.

19

Q. What is an ATI ambulance?

20

A. To my recollection, it's an ambulance that

21 provides service to the County of transporting

22 detainees to an outlying hospital.

23

Q. How many ATI ambulances are at your disposal

24 as Superintendent of External Operations?

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65

1

A. I don't know.

2

Q. Do officers from External Operations drive

3 the ATI ambulances?

4

A. No, sir.

5

Q. Who is used to drive the ambulances?

6

A. People employed by ATI.

7

Q. That's a private company?

8

A. Yes, sir.

9

Q. If a detainee from Cook County Jail is

10 transported to the hospital by an ATI ambulance, are

11 correctional officers from External Operations, do

12 they accompany them?

13

A. Yes, sir.

14

Q. Are the detainees shackled when they're

15 transported by ambulance, the ATI ambulance to

16 the hospital?

17

A. Yes, sir.

18

Q. By shackled, you mean they're leg- and

19 hand-shackled?

20

A. Yes, sir.

21

Q. And there's a waist band on them?

22

A. Yes, sir.

23

Q. During the period of time that you were

24 External Operations Superintendent, were there any

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1 exceptions for inmates that were transported from

2 the jail to the hospital?

3

A. Yes, sir.

4

Q. What exceptions were there?

5

A. Any inmate being moved outside the normal

6 protocol, such as a woman in labor. You also had

7 inmates missing limbs. That required a different

8 kind of restraint.

9

Q. How would the correctional officer know that

10 the woman was in labor?

11

A. If it was relayed to us by Cermak Hospital.

12

Q. So would that also include -- when detainees

13 were transported by Chicago Fire ambulance from the

14 jail to the hospital, would correctional officers

15 accompany the detainees?

16

A. Yes, sir.

17

Q. And would all detainees transported from the

18 jail to a hospital by the Chicago Fire Department

19 ambulance be shackled?

20

MR. SMITH: Objection. He already answered

21 the question.

22

MR. MORRISSEY: He answered about ATI

23 ambulances.

24

MR. SMITH: It's the same question.

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1 BY MR. MORRISSEY:

2

Q. You may answer.

3

A. Yes, sir.

4

Q. Were there any exceptions for people that

5 were transported from the jail to the hospital by

6 Chicago Fire ambulances or by squad cars?

7

A. Yes, sir.

8

Q. What exceptions were there?

9

A. If fire staff was informed of a prisoner, a

10 female in labor or any inmate with missing limbs

11 that would cause for a different way to restrain.

12

Q. Were there any records that are maintained

13 by the transportation officers that transported

14 inmates from the jail to the hospital, were there

15 any records maintained by those officers?

16

A. Yes, sir.

17

Q. What records are maintained by the

18 transportation officers?

19

A. There's a shiftly record of any movements

20 in that officer's squad car of anybody being

21 transported.

22

Q. So when there's a transportation from the

23 jail to a hospital, there's a record maintained;

24 correct?

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1

A. Correct.

2

Q. And does that record indicate whether or

3 not the detainee that's being transported from the

4 jail to a hospital is placed in shackles?

5

A. Yes, sir.

6

Q. And on the form there's an indication

7 whether the person is shackled or not?

8

A. Yes, sir.

9

Q. If the form does not indicate that the

10 person was not shackled, is it your assumption as

11 the Superintendent of External Operations that the

12 detainees was shackled?

13

MR. SMITH: Objection.

14 BY MR. MORRISSEY:

15

Q. Do you understand the question?

16

A. No, sir.

17

Q. You mentioned that on the form prepared by

18 the transportation officers for inmates being

19 transported from the jail to the hospital, there is

20 a place on that form to indicate that the person was

21 shackled; correct?

22

A. Correct.

23

Q. On that form, is it a box or is there a

24 notation that has to be made by the officer?

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1

A. I don't recall.

2

Q. Do you review those forms or did you review

3 them as the Superintendent of External Operations?

4

A. No, sir.

5

Q. Did you personally transport detainees from

6 the jail to the hospital during the period of time

7 you were the superintendent?

8

A. Yes, sir.

9

Q. On how many occasions?

10

A. To my recollection, one.

11

Q. Was that person pregnant?

12

A. No, sir.

13

Q. Did you personally transport any women from

14 the jail, when you were superintendent, to a hospital

15 during the time she was in labor?

16

A. No, sir.

17

Q. Did you ever discuss with any of your

18 transportation officers whether or not women that

19 went into labor and were transported by the

20 transportation unit to the hospital, whether those

21 woman were shackled?

22

THE WITNESS: I'm sorry. Can you repeat?

23

(WHEREUPON, the record was read

24

by the reporter as requested.)

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1 BY THE WITNESS:

2

A. No, sir.

3 BY MR. MORRISSEY:

4

Q. Did you ever, during the time you were the

5 Superintendent of External Operations, ever discuss

6 with any officer or supervisor that transported a

7 woman from Division 3 to a hospital, who was in

8 labor, whether or not the woman was shackled or

9 not?

10

A. No, sir.

11

Q. Do you have any knowledge in regards to how

12 women that were in the MOM's program were transported

13 from the MOM's program to the hospital when they went

14 into labor?

15

A. No, sir.

16

Q. Did you ever discuss with any supervisor or

17 officer within the External Operations how women that

18 were in the MOM's program were transported from the

19 MOM's program to the hospital after they went into

20 labor?

21

A. No, sir.

22

Q. During the period of time when you were the

23 External Operations Superintendent, from March to

24 October of 2008, did you ever personally guard a

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1 woman that was in labor in any of the area

2 hospitals?

3

A. No, sir.

4

Q. During the period of time when you were

5 Superintendent of External Operations, did you ever

6 come into the room of a woman that was in labor and

7 hospitalized?

8

A. No, sir.

9

Q. Would it be correct to say that you have no

10 personal knowledge whether or not women that were

11 hospitalized and in labor during the period of time

12 from March of 2006 to the time you left in August of

13 2008, whether or not they were shackled while they

14 were in labor in the hospital?

15

THE WITNESS: I'm sorry.

16

(WHEREUPON, the record was read

17

by the reporter as requested.)

18 BY THE WITNESS:

19

A. I have no personal knowledge.

20 BY MR. MORRISSEY:

21

Q. Did you ever discipline a correctional

22 officer under your command during the period of

23 time from March of 2006 to August of 2008 for not

24 shackling a woman who was in labor?

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1

A. To my recollection, no.

2

Q. Did you ever discipline a correctional

3 officer or become aware that a correctional officer

4 was disciplined from March of 2006 to August of 2008

5 that shackled a woman who was in labor either being

6 delivered to a hospital or while in labor and

7 hospitalized?

8

A. To my recollection, no.

9

Q. During the period of time that you were

10 the External Operations Superintendent, did you ever

11 review any of the External Operations Daily Detainee

12 Hospitalization Checklist, which had previously been

13 marked as Exhibit 4, for hospitalized women that

14 were in labor?

15

A. I don't recall.

16

Q. Do you have any recollection of reviewing a

17 checklist prepared on a daily basis for women that

18 were hospitalized while in labor?

19

A. No, sir.

20

Q. During the period of time that you were

21 Superintendent of External Operations, did you ever

22 talk with the correctional officers that were

23 assigned to guard women that were hospitalized who

24 were detainees who were also in labor?

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1

A. To my recollection, no.

2

Q. During the time that you were Superintendent

3 of External Operations, did you ever talk with any

4 of the supervisors that were responsible for women

5 that were hospitalized and in labor and who were

6 under the custody of the Cook County Sheriff?

7

THE WITNESS: Please.

8

(WHEREUPON, the record was read

9

by the reporter as requested.)

10 BY THE WITNESS:

11

A. Yes.

12 BY MR. MORRISSEY:

13

Q. During the time you were Superintendent of

14 External Operations, did you ever discuss with your

15 supervisor whether or not women that were in custody

16 and in labor were shackled while they were in the

17 hospital or being transported to the hospital?

18

MR. SMITH: Objection, foundation.

19 BY MR. MORRISSEY:

20

Q. During the time you were superintendent.

21

A. To my recollection, no, sir.

22

Q. Other than what's been marked as Plaintiff's

23 Exhibit No. 3 (indicating), which is your hospital

24 policy and procedure, did you ever instruct any of

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74

1 the guards that were responsible for securing women

2 who were hospitalized and in labor in regards to

3 whether or not these women should be shackled?

4

A. No, sir.

5

Q. Did you ever instruct your supervisors that

6 were assigned to the hospitals in regards to whether

7 or not females that were shackled -- strike that.

8

Did you ever provide any instruction,

9 oral instruction to the supervisors at the

10 hospital under your command in regards to whether

11 women in labor should be shackled or not?

12

A. No, sir.

13

Q. Do you have personal knowledge whether your

14 supervisors ever instructed the correctional

15 officers under them whether or not women in labor

16 should be shackled or not --

17

MR. SMITH: Objection --

18 BY MR. MORRISSEY:

19

Q. -- who are hospitalized?

20

MR. SMITH: -- to what other people know.

21

MR. MORRISSEY: Let me rephrase the question.

22 BY MR. MORRISSEY:

23

Q. In your presence, did any supervisor to

24 your knowledge ever provide any instruction to the

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75

1 correctional officers in regards to whether inmates

2 that were pregnant and in labor and hospitalized

3 were to be shackled or not?

4

MR. SMITH: Objection, foundation.

5 BY THE WITNESS:

6

A. No, sir.

7

MR. MORRISSEY: Let's take a break.

8

(WHEREUPON, a recess was had

9

from 11:35 a.m. to 11:50 a.m.)

10 BY MR. MORRISSEY:

11

Q. As head of the External Operations or at

12 least former head of the External Operations, are

13 you aware of a system called CIMIS?

14

A. Yes, sir.

15

Q. Is there any information contained on CIMIS

16 whether or not a women is pregnant or not?

17

A. To my recollection, no, sir.

18

Q. Is there any information that's contained

19 on CIMIS to indicate whether or not a person is

20 hospitalized off the campus of the CCDOC?

21

A. Yes, sir.

22

Q. What information is contained in CIMIS

23 which would reflect that a person is hospitalized

24 and a detainee in Cook County Hospital?

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1

A. His housing status would show that he's

2 assigned to a hospital.

3

Q. What is the code for being assigned to a

4 hospital in CIMIS?

5

A. 15-HP.

6

Q. Would it be possible to determine whether

7 a woman during the period of time that she was

8 incarcerated was assigned to the hospital?

9

A. Yes, sir.

10

Q. And that could be derived from CIMIS system;

11 correct?

12

A. Yes, sir.

13

Q. Now, from December '06 until you left,

14 December 6th -- December 4, 2006, to the time that

15 you left in August of 2008, what was your written

16 policy in regards to women that are in shackles --

17 strike that. Let me rephrase it.

18

From 2006, December 4, 2006 to August

19 of 2008, what was the formal written policy of the

20 External Operations in regards to whether women who

21 in handcuffs -- women who were in labor were

22 handcuffed when they were transported to a hospital?

23

MR. SMITH: Do you understand the question?

24

THE WITNESS: Could you repeat it, please?

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1

(WHEREUPON, the record was read

2

by the reporter as requested.)

3 BY MR. MORRISSEY:

4

Q. Do you understand the question?

5

A. No, sir.

6

Q. Okay. From the time you were in charge with

7 External Operations until you left, what was the

8 formal written policy in regards to whether or not

9 women who were transported to a hospital while they

10 were in labor were handcuffed?

11

MR. SMITH: That's the exact same thing you

12 said before.

13

Do you understand the question?

14 BY MR. MORRISSEY:

15

Q. Do you understand the question?

16

A. No, sir.

17

Q. During the period from December of 2006 to

18 August of 2008, what was the formal written policy

19 in regards to transporting women to the hospital

20 who were in labor?

21

MR. SMITH: Well, I'm just going to object

22 to foundation. Are you referring to from the jail

23 or MOM's? Can you clarify that, please?

24

MR. MORRISSEY: Well, I'm asking in either

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1 sense.

2

MR. SMITH: There's two --

3

MR. MORRISSEY: Is there a difference?

4 Well, I'll ask it.

5

MR. SMITH: I think it would be two

6 different questions, yeah.

7

MR. MORRISSEY: All right.

8 BY MR. MORRISSEY:

9

Q. First of all, for women that were in

10 Division 3 that went into labor and were transported

11 to the hospital, what was the written formal policy

12 in regards to whether they were shackled during the

13 period of time from December of 2006 to August of

14 2008?

15

A. No leg irons, handcuffs, or waist chains

16 shall be used on a female inmate who is in labor.

17

Q. What was the formal written policy for

18 women that came from Division 3 once they were

19 hospitalized in either Stroger or some other

20 hospital who were in labor during that same time

21 period?

22

A. The same policy would stand in effect.

23

Q. That they shouldn't be shackled?

24

A. While in labor, yes, sir.

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79

1

Q. What was the formal written policy during

2 that same time period for women who were assigned

3 to the MOM's program and were transported to a

4 hospital while in labor?

5

A. That didn't fall under External Operations'

6 transport.

7

Q. What was the formal written policy in

8 regards to women who were assigned to the MOM's

9 program that were hospitalized while in labor?

10

A. The same protocol that's in effect.

11

Q. Which is what?

12

A. No leg irons, handcuffs, or waist chains

13 shall be used on a female while in labor.

14

Q. Why was that the written policy of the

15 External Operations for both people that were in

16 Division 3 and the MOM's program when they were in

17 labor?

18

A. To my recollection, that's from the State

19 statute that was put out.

20

Q. Okay. Now, you previously testified that

21 you had no personal knowledge whether or not women

22 that were transported from Division 3 to a hospital

23 while in labor were shackled; correct?

24

A. No, sir.

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80

1

MR. SMITH: Objection. I don't think he has

2 ever testified to this.

3 BY MR. MORRISSEY:

4

Q. You can answer.

5

A. No, sir.

6

Q. Pardon?

7

A. No.

8

Q. You have no personal knowledge?

9

A. I testified to the question when I was in

10 training or an officer in External Operations of no

11 knowledge.

12

Q. Okay. When you were Superintendent of

13 External Operations, you had no personal knowledge

14 whether or not women from Division 3 that were in

15 labor were transported in shackles or not?

16

A. Correct.

17

Q. And you previously testified that you never

18 discussed with any transport officer whether or not

19 women coming from Division 3 who were in labor to a

20 hospital were in shackles or not; correct?

21

A. Correct.

22

Q. And you had testified that you never

23 discussed with any supervisor from External

24 Operations whether or not women who left Division 3

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1 in labor to be transported to a hospital were

2 shackled or not; correct?

3

MR. SMITH: Objection. He said he did, and

4 now --

5

MR. MORRISSEY: I'm asking.

6

MR. SMITH: He already said he did.

7

MR. MORRISSEY: No. I'm asking him right now.

8

MR. SMITH: Well, then asked and answered.

9

MR. MORRISSEY: He didn't answer that.

10

MR. SMITH: Yes, he did.

11

MR. MORRISSEY: Let him answer the question.

12 BY THE WITNESS:

13

A. Correct.

14 BY MR. MORRISSEY:

15

Q. So you have no personal knowledge -- I'm

16 sorry.

17

You never discussed with a supervisor

18 during the time you were External Operations

19 supervisor whether or not women coming from

20 Division 3 who were in labor to a hospital were

21 shackled?

22

A. Correct.

23

Q. And it's correct that in regards to women

24 that were hospitalized who were originally in

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82

1 Division 3 and were hospitalized because they were

2 in labor, you have no personal knowledge whether or

3 not they were shackled or not while they were in

4 labor in the hospital; correct?

5

A. Correct.

6

Q. And you never talked with or discussed with

7 any of the correctional guards that provided security

8 for the women that were in labor in Division 3,

9 whether or not those women were shackled or not at a

10 hospital?

11

A. Correct.

12

Q. And the same would be true in regards to

13 supervisors that supervised the guards that

14 monitored the women that were in labor from

15 Division 3 in a hospital, whether or not they were

16 shackled or not; correct?

17

You never discussed that with their

18 supervisors; correct?

19

MR. SMITH: Objection, asked and answered.

20 BY MR. MORRISSEY:

21

Q. You can answer that.

22

MR. SMITH: Well, he already answered it.

23 He talked to the supervisors but not the

24 correctional officers.

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83

1

MR. MORRISSEY: No, I don't think he

2 talked about that. I think you're misstating the

3 testimony.

4

MR. SMITH: I'm not misstating.

5

MR. MORRISSEY: I'll ask him. Let me ask

6 him the question.

7 BY MR. MORRISSEY:

8

Q. During the time you were External Operations

9 supervisor, did you ever discuss with a supervisor

10 from either Stroger or from any of the other

11 outlying hospitals whether or not women that were

12 in labor in either the MOM's program or Division 3,

13 whether or not they were shackled when they were in

14 the hospital?

15

THE WITNESS: Can you repeat?

16

(WHEREUPON, the record was read

17

by the reporter as requested.)

18 BY THE WITNESS:

19

A. No, sir.

20

MR. MORRISSEY: I'm showing you what is being

21 marked as Group Exhibit No. 5. It's for a Simione

22 Jackson. It's a ten-page group exhibit, and I am

23 going to mark each page 1 through 10, for

24 identification purposes, and some of them have

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84

1 writing on the backside.

2

(WHEREUPON, said document was

3

marked Plaintiff's Group

4

Exhibit No. 5, for

5

identification, as of 05-21-09.)

6 BY MR. MORRISSEY:

7

Q. Showing you what has been marked as

8 Plaintiff's Exhibit No. 5, do you have those documents

9 in front of you?

10

A. No, sir.

11

MR. MORRISSEY: Do you have those documents?

12 It's the ones for Simione.

13

(WHEREUPON, a discussion was had

14

off the record.)

15 BY MR. MORRISSEY:

16

Q. Showing you what has been marked as Group

17 Exhibit No. 5, Group Exhibit 5 has ten pages.

18

MR. SMITH: What is this?

19

MR. MORRISSEY: Is that mine?

20

MS. SHAPIRO: That's an extra copy.

21

MR. SMITH: Okay. This is 5.

22 BY MR. MORRISSEY:

23

Q. Have you had an opportunity to look at those

24 documents?

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1

A. No, sir.

2

Q. Do you want to take a few moments and look at

3 them?

4

MR. MORRISSEY: I'll go out and see if --

5

MR. SMITH: Yes, he would like to look at

6 these.

7

(WHEREUPON, a recess was had

8

from 12:06 p.m. to 12:08 p.m.)

9 BY MR. MORRISSEY:

10

Q. Group Exhibit No. 5 was tendered by the

11 defendants this morning with regard to Simione

12 Jackson. I'd ask you to take a look as what has

13 been marked as page 2 of Simione Jackson's

14 documents.

15

Do you see that document?

16

A. Yes, sir.

17

Q. Is this a standard document that's maintained

18 in the regular course of business of the External

19 Operations at Cook County Jail?

20

A. Yes, sir.

21

Q. There is a date of May 2, 2008, on it;

22 correct?

23

A. Yes, sir.

24

Q. Does this indicate what time Simione Jackson --

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1 on what shift Simione Jackson came into the hospital,

2 Stroger Hospital?

3

MR. SMITH: Do you mind if I help him out

4 with times?

5

MR. MORRISSEY: No. That's fine.

6 BY MR. MORRISSEY:

7

Q. Referring to the bottom section of page 2,

8 it says there's a shift 11 to 7. That would be the

9 May 2, 2008, shift from 11:00 p.m. to 7:00 a.m. in

10 the morning?

11

A. Yes, sir.

12

Q. And it indicates an Officer Jackson was on

13 duty?

14

A. Yes, sir.

15

Q. Okay. Do you know an Officer Jackson?

16

A. To my recollection, no.

17

Q. That would indicate that Simione Jackson was

18 present at the hospital at some point during that

19 shift; correct?

20

A. Yes, sir.

21

Q. And it also indicates the two subsequent

22 shifts: a K. Pemberton?

23

A. Yes.

24

Q. Do you know Officer Pemberton?

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1

A. Yes, sir.

2

Q. What's his or her fist name?

3

A. Hers. Uh, Kimberly.

4

Q. Kimberly. She would be the officer assigned

5 during the 7:00 a.m. to 3:00 p.m. shift?

6

A. Yes, sir.

7

Q. And then there's an Officer Fleming. Do you

8 know Office Fleming?

9

A. Yes, sir.

10

Q. Is that a male or a female?

11

A. Female.

12

Q. What's Fleming's first name?

13

A. I believe Tabitha.

14

Q. Now, handcuffs, there's no notation under --

15 there's a notation under Handcuffs have been

16 removed during the following meals, and there's a

17 notation N.P.O. What does "N.P.O." stand for?

18

A. I'm not sure, sir.

19

Q. Is there any other indication on page 2

20 that Ms. Simione was not handcuffed on May 2, 2008?

21

MR. SMITH: The back of page 1?

22

MR. MORRISSEY: Actually, on the front page.

23

MR. SMITH: Oh, still?

24

MR. MORRISSEY: The front side of page 2.

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88

1 BY THE WITNESS:

2

A. No, sir.

3 BY MR. MORRISSEY:

4

Q. So as the Superintendent of External

5 Operations, by just looking at the front of page 2

6 you would assume that Ms. Jackson was handcuffed and

7 shackled to a bed?

8

MR. SMITH: I object to that characterization.

9

MR. MORRISSEY: Well, I'm just asking him.

10 BY THE WITNESS:

11

A. I couldn't answer yes or no, sir.

12 BY MR. MORRISSEY:

13

Q. Why not?

14

A. In the boxes where it's titled Handcuffs

15 have been removed, there is a three-letter

16 abbreviation which I don't know what the officer is

17 saying.

18

Q. The N.P.O.?

19

A. Correct.

20

Q. Okay. Turning --

21

MR. SMITH: N.P.O. --

22 BY MR. MORRISSEY:

23

Q. You don't know what "N.P.O." stands for?

24

A. No, sir.

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89

1

Q. Okay. Turning over on the opposite side,

2 there's some notations on the opposite side;

3 correct?

4

A. Yes, sir.

5

Q. Do you know a Sergeant Roldan?

6

A. Yes, sir.

7

Q. Who is Sergeant Roldan?

8

A. A 7:00 to 3:00 shift sergeant supervisor.

9

Q. Now, would Sergeant Roldan be responsible

10 for carrying out the policies and practices of

11 External Operations on May 2, 2008?

12

A. Yes, sir.

13

Q. Now, at 7:00 a.m. in the morning there's a

14 notation. Who would have made those notations on

15 the 7:00 to 3:00 shift on May 2, 2008?

16

A. Officers Pemberton.

17

Q. And is there a notation at 7:00 a.m. in the

18 morning?

19

A. Yes, sir.

20

Q. And what does that notation say?

21

A. Per Sergeant Roldan, this inmate has been

22 shackled and handcuffed. MOM's program.

23

Q. Okay. Would officer Kimberly Pemberton as a

24 correctional officer have to follow the instructions

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90

1 of her sergeant?

2

A. Yes, sir.

3

Q. There is another notation at 10:00 o'clock.

4 Can you read that?

5

A. Yes, sir.

6

Q. Can you read that for the record?

7

A. All is quiet with no movement.

8

Q. And, again, that would have been a notation

9 by Officer Kim Pemberton?

10

A. Yes, sir.

11

Q. Does an officer have to make a notation if

12 the officer is at lunch?

13

A. Should, yes, sir.

14

Q. And on front side of page 2, does it

15 indicate the name of the relief officer for when

16 Officer Pemberton took lunch?

17

A. Yes, sir.

18

Q. What's the name of that officer?

19

A. P. Walker.

20

Q. Do you know a P. Walker?

21

A. I know of female Pamela Walker, yes, sir.

22

Q. And she was, when you were Superintendent,

23 she was assigned to External Operations?

24

A. Yes, sir.

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91

1

Q. Do you know a Sergeant Johnson?

2

A. Yes, sir.

3

Q. Who is Sergeant Johnson?

4

A. 3:00 to 11:00 shift supervisor.

5

Q. Would Officer Pemberton have to follow a

6 command by Sergeant Johnson?

7

A. Yes, sir.

8

Q. She would be -- Sergeant Johnson would be

9 Officer Kimberly's supervisor; correct?

10

A. No, sir.

11

Q. She would -- Sergeant Johnson was a

12 supervisor at Stroger Hospital; correct?

13

A. Yes, sir.

14

Q. And an officer has to follow the commands of

15 a supervisor; correct?

16

A. Yes, sir.

17

Q. And at 5:00 p.m. in the evening, is there a

18 notation "per" at 5:00 p.m. in the evening?

19

A. Yes, sir.

20

Q. And at 5:00 p.m. in the evening, what officer

21 would have been on duty?

22

A. Officer Fleming.

23

Q. And was this 5:00 p.m. notation made by

24 Officer Fleming?

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92

1

A. I can't say.

2

Q. On a daily -- on an External Operations'

3 Daily Detainee Hospitalization Checklist, is it

4 normal and customary at times for correctional

5 officers filling out that form to have handwritten

6 notes?

7

A. Yes.

8

Q. Other than the correctional officers

9 assigned to guard a particular detainee, on an

10 External Operations' Daily Detainee Hospitalization

11 Checklist would any other individual make a notation

12 on that report?

13

A. If anybody else was assigned to that inmate.

14

Q. So as the executive -- as the Superintendent

15 of External Operations, you would assume that the

16 notation that was made at 5:00 p.m. on May 2, 2008,

17 was made either by Officer Fleming or an officer

18 assigned to guard Simione Jackson; correct?

19

A. Yes, sir.

20

Q. And is there a notation at 5:00 p.m. on

21 May 2, 2008?

22

A. Yes, sir.

23

Q. And what is the notation?

24

A. Per Sergeant Johnson, inmate is shackled and

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93

1 handcuffed. MOM's program.

2

Q. So as of Superintendent of External

3 Operations, would this document indicate to you

4 that Simione Jackson was shackled pursuant to

5 Sergeant Johnson's instructions?

6

A. Yes, sir.

7

Q. And Sergeant Johnson as a supervisor in

8 External Operations has the responsibility of

9 carrying out the External Operations' policies and

10 procedures?

11

A. Yes, sir.

12

Q. Now, there's a notation at 2014. Can you

13 read that notation?

14

A. Yes, sir.

15

Q. What does the notation say?

16

A. Patient is in active labor. Doctor issued

17 order for shackles to be removed. Notified Sergeant

18 Johnson.

19

Q. Now, from that document, does it reflect to

20 you that Sergeant Johnson was a supervisor at

21 Stroger Hospital on the 3:00 to 11:00 shift on May 2,

22 2008?

23

A. Correct.

24

Q. And this notation, would that indicate to

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94

1 you that the correctional officer that was guarding

2 Simione Jackson had notified her supervisor that a

3 doctor had issued an order that the shackles should

4 be removed?

5

A. Yes, sir.

6

Q. Now, under the policies and practices of

7 External Operations, can a doctor issue an order in

8 regards to a patient?

9

A. Yes, sir.

10

Q. Under what circumstances?

11

A. I don't understand.

12

Q. Under what circumstances can a doctor give

13 an order to a correctional officer that's assigned

14 to guard a hospitalized detainee?

15

MR. SMITH: Do you understand the question?

16

THE WITNESS: No.

17

MR. SMITH: Can you rephrase it, please?

18

MR. MORRISSEY: Sure.

19 BY MR. MORRISSEY:

20

Q. If on May 2, 2008, a doctor requested that

21 the shackles be removed from Simione Jackson, what

22 was the responsibility of the correctional officer

23 assigned to Simione Jackson under the general

24 practice and procedures?

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95

1

A. To remove the restraints.

2

Q. Was the correctional officer also required

3 to contact her immediate supervisor?

4

A. Yes, sir.

5

Q. Is there any other report that would been

6 prepared by Officer Fleming for Sergeant Johnson to

7 reflect that the shackles were removed?

8

A. No, sir.

9

Q. At 2014 Officer Fleming notes that

10 Ms. Jackson is in active labor. Do you as the

11 superintendent know what active labor is?

12

A. Yes.

13

Q. What would you consider active labor to be?

14

A. That a woman is beginning the process of

15 delivering a baby.

16

Q. Was there a practice of removing the shackles

17 from a pregnant woman who is in labor once she went

18 into what's called "active labor" in the process of

19 actually delivering a baby?

20

A. Yes.

21

Q. And would the doctor determine whether or not

22 a shackled pregnant woman is in active labor? Would

23 the doctor make that call?

24

A. Can you repeat?

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96

1

Q. Yeah.

2

You said that there was a practice for

3 a women that is in labor, who went into what now is

4 called "active labor," for the guards that were

5 providing security for her to remove the shackles

6 once the woman went into active labor; correct?

7

A. Correct.

8

Q. Was that after a doctor told the guard that

9 now the woman is just about ready to deliver the

10 baby and is in active labor?

11

A. Yes, sir.

12

Q. So the practice for a woman that was

13 preactive labor and hospitalized was to have her

14 shackled while she was hospitalized?

15

A. I don't understand the question.

16

Q. All right. If a woman from either Division 3

17 or the MOM's program went to the hospital between

18 2006, December of 2006 to August of 2008 and was in

19 labor, is it correct that the practice was to have

20 her shackled up to the point that a doctor told the

21 correctional officer or supervisor that the woman now

22 is in active labor and is about to deliver the baby?

23

MR. SMITH: Objection, asked and answered.

24

MR. MORRISSEY: He hasn't answered.

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97

1

MR. SMITH: He already said yes.

2

MR. MORRISSEY: I'm asking.

3 BY THE WITNESS:

4

A. Yes, sir.

5

MR. MORRISSEY: Let me take one more moment

6 to look at this.

7

I'm going to mark the pages for

8 Catherine Zaborowski.

9

(WHEREUPON, said document was

10

marked Plaintiff's Group

11

Exhibit No. 6, for

12

identification, as of 05-21-09.)

13

MR. MORRISSEY: I'll show you what has been

14 marked Plaintiff's Exhibit No. 6. It's a group

15 exhibit containing eight pages.

16

I'd ask you to take a few moments, and

17 maybe you can look at it before I'm going to ask you

18 some questions.

19

MR. SMITH: Okay. Make sure you tell her

20 not to leave. She's wanted.

21

MR. MORRISSEY: She's wanted?

22

MR. SMITH: Yeah.

23

MR. MORRISSEY: For what?

24

MR. SMITH: Huh?

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98

1

MR. MORRISSEY: For what?

2

MR. SMITH: She missed a court date.

3

MR. MORRISSEY: Well, you're not going to

4 arrest her.

5

MR. SMITH: Oh, yes, I am.

6

MR. MORRISSEY: No, you're not.

7

MR. SMITH: I'll take care of the baby.

8 Don't worry.

9

MR. MORRISSEY: No, don't do that.

10

MR. SMITH: Well, I have to.

11

MR. MORRISSEY: Don't do that. That would

12 be bad.

13

MR. SMITH: I'm a sworn officer of the court.

14

MR. MORRISSEY: Let me present her. All

15 right? Don't do that to her. All right? I'm asking.

16

What did she miss?

17

MR. SMITH: She missed a court date.

18

MR. MORRISSEY: Well, let's make arrangements.

19 I mean, you can't take her from the baby. Who's

20 going to take the baby? Are you going to handle the

21 baby this afternoon?

22

(WHEREUPON, a discussion was

23

had off the record.)

24

MR. SMITH: Let's move on.

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99

1

MR. MORRISSEY: I'm looking at the documents

2 that have been marked as Exhibit No. 6. I believe

3 we're probably missing the document from August 29th.

4 There probably was an additional document from

5 August 29th that we don't have with us.

6

MR. SMITH: We copied -- we actually brought

7 the originals down here, and we copied right from

8 the originals.

9

MR. MORRISSEY: Do we have the original here?

10

MR. MORRISSEY: And then we returned the

11 originals to the Sheriff's Office. So you're saying

12 you're missing what?

13

MR. MORRISSEY: Well, it appears that she

14 went from -- she arrived at the hospital on the 29th.

15

MR. SMITH: Yeah?

16

MR. MORRISSEY: So we don't know what

17 happened on the 29th before her baby was delivered.

18

The first document that we have is for

19 August 30, 2008.

20

MR. SMITH: August 30th, right.

21

MR. MORRISSEY: And she apparently delivered --

22 she went in the hospital, at least my records

23 indicate, on August 29th.

24

MR. SMITH: How accurate are your records,

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100

1 though?

2

MR. MORRISSEY: It's the complaint.

3

MR. SMITH: It looks like she -- this looks

4 like she just got here on the 30th.

5

(WHEREUPON, a discussion was had

6

off the record.)

7

MR. SMITH: Before we get too excited, can

8 we make sure that the 29th was in fact the date she

9 went in?

10

MR. MORRISSEY: Okay.

11

MR. SMITH: I mean, it could be that she

12 wasn't taken the 29th.

13

MR. MORRISSEY: Well, people usually aren't

14 mistaken about when their children are born. I

15 remember when my children were born. I could tell

16 you the minute and the hour when we went to the

17 hospital.

18

MR. SMITH: That may not be the case here,

19 Mr. Morrissey.

20 BY MR. MORRISSEY:

21

Q. Do you know whether there was any difference

22 in regards to the shackling of women that came to

23 the hospital in labor from Division 3 or came from

24 the MOM's program once they arrived at the hospital?

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101

1

MR. SMITH: At what point?

2 BY MR. MORRISSEY:

3

Q. All right. During the period of time you

4 were the Superintendent of the External Operations,

5 are you aware -- was there any difference for a

6 hospitalized woman in labor whether or not they

7 came from Division 3 or the MOM's program?

8

A. No, sir.

9

Q. Do you know what was the practice and/or

10 policy of restraining pregnant women assigned to the

11 Sheriff's MOM's program after October of 2008?

12

A. No, sir.

13

MR. SMITH: Excuse me, Tom.

14

MR. MORRISSEY: Yes?

15

MR. SMITH: I've got to say again that the

16 notes and everything we have here is that she got

17 to the hospital on the 30th, and she delivered on

18 the 30th.

19 BY MR. MORRISSEY:

20

Q. Well, let me ask you a question.

21

In August of 2008, do you know whether

22 or not women if the MOM's program were transported

23 by counselors from Haymarket to a hospital when

24 they were in labor?

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102

1

A. No, sir.

2

Q. Do you know whether or not counselors from

3 Haymarket or the MOM's program stayed with women

4 who were in labor once they arrived at the hospital

5 until they were relieved by somebody from External

6 Operations?

7

A. No, sir.

8

MR. SMITH: Now, we're talking prior to

9 October of '08; right?

10

MR. MORRISSEY: Right.

11

MR. SMITH: Okay. Just so we know.

12

MR. MORRISSEY: So we don't know whether or

13 not the plaintiff Zaborowski was at the hospital on

14 August 29, 2008, based upon the records that are in

15 front of us right now?

16

MR. SMITH: I agree.

17

MR. MORRISSEY: Okay.

18

MS. SHAPIRO: I've looked through the

19 documents.

20

MR. SMITH: Off the record for one second.

21

(WHEREUPON, a discussion was had

22

off the record.)

23 BY MR. MORRISSEY:

24

Q. Do you know whether or not there was any

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103

1 change in regards to shackling women after August of

2 2008 who were hospitalized while in labor?

3

A. No, sir.

4

Q. Do you know who would have knowledge in

5 regards to whether or not there was any change in

6 the practice and procedure of the Sheriff in regards

7 to shackling women that were in labor after the time

8 you left as Superintendent of External Operations?

9

MR. SMITH: Again, for clarification as it

10 relates to inmates that are in the MOM's program?

11

MR. MORRISSEY: Either program, either in

12 the MOM's program or in Division 3.

13

MR. SMITH: Because the --

14

MR. MORRISSEY: Well, I'm just asking.

15

MR. SMITH: I mean, the lion's share, or

16 majority, are all from the MOM's program, not from

17 the jail.

18

MR. MORRISSEY: I'm asking.

19

THE WITNESS: Can you read that back for me,

20 please?

21

(WHEREUPON, the record was read

22

by the reporter as requested.)

23 BY THE WITNESS:

24

A. No, sir.

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104

1 BY MR. MORRISSEY:

2

Q. When you were Superintendent, and I may have

3 asked you this, was there any difference in regards

4 to shackling women who were hospitalized in labor

5 who came either from the MOM's program or Division 3

6 of the jail?

7

A. No, sir.

8

MR. MORRISSEY: I'm going to continue this

9 deposition with the understanding that you'll

10 produce somebody that has knowledge after August of

11 2008 in regards to the shackling of women who were

12 in labor who were hospitalized up to the present.

13

I have no nothing further.

14

MR. SMITH: I have a couple of questions.

15

EXAMINATION

16 BY MR. SMITH:

17

Q. Superintendent Hickerson took over your spot;

18 correct?

19

A. Yes, sir.

20

Q. He, in fact, started doing what you had been

21 doing for the last two and a half years; correct?

22

A. Correct.

23

Q. Okay. And where did you move on to?

24

A. I went to Division 4.

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105

1

Q. Okay. And didn't you work with

2 Superintendent Hickerson on the new General Order

3 that was issued in October of '08?

4

A. I don't recall.

5

Q. Don't you -- do you remember looking at the

6 procedure and trying to change the way the Sheriff

7 watched pregnant females that had been enrolled

8 already in the MOM's program?

9

A. Yes, sir.

10

Q. And why is that?

11

MR. MORRISSEY: Can I hear that question back

12 again?

13

(WHEREUPON, the record was read

14

by the reporter as requested.)

15

MR. MORRISSEY: Can we have some foundation

16 for that question?

17 BY MR. SMITH:

18

Q. Before Superintendent Hickerson took over,

19 you met with him, correct, approximately in August

20 of '08?

21

A. Correct.

22

Q. And, again, did you have a discussion or

23 discussions regarding manpower and better ways to

24 use the External Op Sheriff officers?

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106

1

A. Yes, sir.

2

Q. And isn't it true that you and

3 Superintendent Hickerson thought that it would be

4 more feasible to just have the counselors for MOM's

5 watch the pregnant inmates as opposed to a Sheriff

6 deputy?

7

A. Yes, sir.

8

Q. And to your knowledge, is that the

9 procedure --

10

MR. MORRISSEY: I'm going to have an

11 objection throughout this as to the leading nature of

12 it, but you can continue.

13

MR. SMITH: All right.

14 BY MR. SMITH:

15

Q. And to your knowledge, after October 1st or

16 thereafter, to your knowledge, is it the sole

17 responsibility of the counselors from Haymarket MOM's

18 to watch over the pregnant inmates?

19

A. Yes, sir.

20

Q. So that's been abandoned, the use of Sheriff

21 deputies; correct?

22

A. Correct.

23

Q. And, again, to your knowledge that would be

24 a cost-cutting decision?

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107

1

A. Yes, sir.

2

MR. SMITH: All right. I don't have any more

3 questions.

4

MR. MORRISSEY: I have a few questions.

5

FURTHER EXAMINATION

6 BY MR. MORRISSEY:

7

Q. Where did you have this conversation with

8 Superintendent Hickerson in August of 2008?

9

A. I don't recall, sir.

10

Q. Other than yourself, was anybody else

11 present during that conversation?

12

A. I don't recall.

13

Q. Do you know whether -- was the discussion

14 solely about providing External Operations guards

15 for women that were in labor at the hospital?

16

A. I don't recall.

17

Q. Do you know whether or not executive --

18 Assistant Executive Director Dennis Andrews was

19 present during the conversation?

20

A. I don't recall, sir.

21

Q. Do you know whether or not Assistant

22 Executive Director Andrews was notified in regards

23 to this change in the procedure whereby women that

24 were assigned to the MOM's program were no longer

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108

1 going to be monitored by correctional officers?

2

A. Assistant Director Andrews was not -- did not

3 hold that rank at that time anymore.

4

Q. And when you were relieved in External

5 Operations in August of 2008, who was the person that

6 was the direct supervisor of the Superintendent of

7 External Operations?

8

A. Assistant Director Gilberto Romero.

9

Q. When did Assistant Director Romero become

10 responsible for External Operations to your

11 knowledge?

12

A. I don't recall.

13

Q. Was Superintendent -- was Executive Director

14 Romero advised that as of October 1, 2008,

15 correctional officers were no longer going to guard

16 women assigned to the MOM's program?

17

A. I don't know.

18

Q. Do you have personal knowledge after you

19 left in August of 2008 whether or not guards were

20 still assigned to women who were in labor and

21 involved with the Sheriff's MOM's program?

22

MR. SMITH: Objection. He already said no.

23

MR. MORRISSEY: I'm asking him.

24

MR. SMITH: Why can't --

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109

1

MR. MORRISSEY: I'm just asking him.

2 BY THE WITNESS:

3

A. No, sir.

4 BY MR. MORRISSEY:

5

Q. Okay. How did you become aware in October

6 of 2008 that External Operations was no longer

7 providing security for women assigned to the MOM's

8 program who were in labor at a hospital?

9

A. I don't recall.

10

Q. In August of 2008 when you had this

11 discussion with Superintendent Hickerson about

12 shackling and guarding women who were in labor at

13 the hospital, did you make a distinction between

14 women who were assigned to the MOM's program and

15 women who came to a hospital from the jail?

16

MR. SMITH: Do you understand that question?

17

THE WITNESS: No, sir.

18 BY MR. MORRISSEY:

19

Q. Who brought up the issue of whether or not

20 guards should continue to monitor women who were

21 assigned to the MOM's program?

22

A. I don't recall.

23

Q. As a superintendent of External Operations

24 in August of 2008, did you feel that women assigned

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110

1 to the MOM's program were less of a security risk

2 than women who came to a hospital in labor from

3 Division 3?

4

A. Yes.

5

Q. In August of 2008 what was your understanding

6 in regards to women that are assigned to the MOM's

7 program?

8

MR. SMITH: As to what?

9

MR. MORRISSEY: As to their security risk.

10 BY THE WITNESS:

11

A. That they were under the MOM's program of the

12 women's furlough and they carried less security risk

13 than the inmates that were housed and confined at

14 the CCDOC.

15 BY MR. MORRISSEY:

16

Q. Did you believe in August of 2008 that there

17 was less of a penological reason for having a guard

18 assigned to a woman who was in labor at the hospital

19 from the MOM's program than a person who came from

20 CCDOC?

21

MR. SMITH: Do you understand the question?

22

THE WITNESS: No.

23

MR. MORRISSEY: Read back the question.

24

MR. SMITH: Can you rephrase it?

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111

1

MR. MORRISSEY: All right.

2 BY MR. MORRISSEY:

3

Q. As the Superintendent of External Operations,

4 did you believe that there was less of a security

5 risk or a penological risk for not having a woman

6 from the MOM's program guarded by a correctional

7 officer than somebody that was at the jail, coming

8 from the jail?

9

MR. SMITH: Can you explain to him what your

10 meaning of "penological risk" is? I think that's

11 the problem here.

12 BY MR. MORRISSEY:

13

Q. Do you have a problem with the word

14 "penological"?

15

A. Yes, sir.

16

Q. By "penological," I mean whether there is

17 a security reason as a Superintendent of External

18 Operations for having a woman in the MOM's program

19 to have a correctional officer present while that

20 woman is hospitalized in labor?

21

THE WITNESS: Can you repeat the question,

22 please?

23

(WHEREUPON, the record was read

24

by the reporter as requested.)

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112

1

THE WITNESS: I'm still not understanding,

2 sir.

3 BY MR. MORRISSEY:

4

Q. And what don't you understand about the

5 question?

6

MR. SMITH: Penological risk, as stated, is

7 a reasonable security purpose as opposed to a purpose

8 that would be for punishment. That's what he's

9 trying to --

10

MR. MORRISSEY: No, no, I'm not asking him

11 that.

12 BY MR. MORRISSEY:

13

Q. My question is: If you have a woman that

14 initially was assigned to the MOM's program and then

15 she goes in the hospital in labor, is there a

16 security reason for having a guard, an armed guard

17 present at the bedside?

18

A. Yes.

19

Q. And what is that reason?

20

MR. SMITH: I think he's asked and answered

21 this --

22

MR. MORRISSEY: I'm just asking.

23

MR. SMITH: -- a hundred difference ways.

24

MR. MORRISSEY: I'm asking the reason.

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113

1

THE WITNESS: Can we repeat it?

2

MR. MORRISSEY: Let me ask this.

3

MR. SMITH: They're more of a danger.

4

MR. MORRISSEY: Let me ask a follow-up

5 question.

6 BY MR. MORRISSEY:

7

Q. Did you agree in August of 2008 that it

8 would be all right not to have an armed guard

9 present for a women who is assigned to the MOM's

10 program and who is hospitalized in labor?

11

A. Yes.

12

Q. Why did you come to that conclusion?

13

A. Due to the detainee being housed from not

14 within the confines of the CCDOC, she became -- she

15 was less of a risk to all.

16

Q. Therefore, it was your opinion in August of

17 2008 that having an armed guard present with a woman

18 from the MOM's program who is in labor was not

19 necessary?

20

A. Correct.

21

Q. Why then prior to August of 2008 was it

22 necessary for a woman who was assigned to the MOM's

23 program and who was in labor to not only have an

24 armed guard at her bedside but also to have the

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114

1 woman shackled?

2

A. That was the protocol.

3

Q. By "protocol," what do you mean?

4

MR. SMITH: The policy.

5 BY MR. MORRISSEY:

6

Q. By protocol, do you mean that prior to

7 August of 2008 it was the policy to have a woman

8 who was assigned to the MOM's program to be shackled

9 and have an armed guard present while she was in

10 labor in a hospital?

11

THE WITNESS: Can you repeat it?

12

MR. SMITH: You don't need to repeat it.

13 You've asked him this a hundred different ways.

14

MR. MORRISSEY: Well, I'm just asking.

15

MR. SMITH: They changed, they changed the

16 policy, but prior to August of '08 the policy was

17 different. Even though they were from the MOM's

18 program, they still had armed guards there.

19 BY MR. MORRISSEY:

20

Q. And the women shackled who were in the MOM's

21 program; correct?

22

MR. SMITH: Yes.

23 BY THE WITNESS:

24

A. Yes.

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115

1 BY MR. MORRISSEY:

2

Q. Okay. In August of 2008 you were aware

3 that there was a State law that said women that are

4 in labor are not to be shackled who are incarcerated;

5 correct?

6

A. Correct.

7

Q. Was the decision to follow the practice and

8 procedure made by your supervisors then, to have

9 women who were in labor and hospitalized shackled?

10

Do you understand the question?

11

A. No, sir.

12

Q. Okay. The policy in August of 2008 was to

13 have women in the MOM's program who were in labor

14 shackled while in the hospital; correct?

15

A. No, sir.

16

MR. SMITH: What's that?

17

MR. MORRISSEY: Pardon?

18

MR. MORRISSEY: That's directly contrary to

19 what we agreed to.

20

MR. SMITH: Yeah. He misunderstood your

21 question. That's all.

22

MR. MORRISSEY: Okay. Can you state --

23

MR. SMITH: Everybody prior to August of '08

24 that was outside the confines, more particularly in

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116

1 a hospital, were cuffed, were shackled?

2

THE WITNESS: Yes, sir.

3 BY MR. MORRISSEY:

4

Q. Including women in labor?

5

A. No, sir.

6

MR. SMITH: Not in labor. Not in labor. As

7 soon as the doctor says that she's going into labor,

8 active labor, he testified ten different ways --

9

MR. MORRISSEY: I'm sorry.

10

MR. SMITH: -- they took the shackles off.

11

MR. MORRISSEY: Okay, okay. I'm sorry.

12 BY MR. MORRISSEY:

13

Q. Where we have this conflict is the definition

14 right before a doctor says the person is going to

15 deliver the baby then was considered active labor,

16 correct, and the shackles came off?

17

A. Yes, sir.

18

Q. Okay. Prior to that, when the women were

19 not in active labor but in labor, all women whether

20 or not they were from the jail or from the MOM's

21 program were in shackles; correct?

22

A. No, sir.

23

MR. SMITH: You're getting -- you're making

24 him define "labor." What you're trying to do is tie

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117

1 him down to the word in a definition of labor. Okay?

2

MR. MORRISSEY: Okay.

3

MR. SMITH: And there are a number of

4 different reasons why you have to go to the hospital.

5 You could be in pre-labor, okay, and that's the

6 reason what he's trying to explain to you.

7

MR. SMITH: Okay, okay.

8

MR. SMITH: But the correctional

9 officers that are watching over the inmates, either

10 from MOM's -- and mostly they are from MOM's, are

11 not medical personnel.

12

They are correctional officers. They

13 have to take the advice and consent from the medical

14 personnel when to put the shackles on and when to

15 take them off.

16 BY MR. MORRISSEY:

17

Q. The decision -- when women left either the

18 jail or the MOM's program and were pregnant, the

19 practice and the policy of the Sheriff was to

20 follow the same protocol for all inmates that are

21 hospitalized: to have them shackled once they

22 reached the hospital; correct?

23

MR. SMITH: If they're not in labor.

24

MR. MORRISSEY: No, no. I'm just --

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118

1 BY THE WITNESS:

2

A. Correct. If they're not in labor.

3 BY MR. MORRISSEY:

4

Q. All right. You as a correctional officer

5 are not a medical person; correct?

6

A. Correct.

7

Q. So the policy and practice was that until a

8 doctor told a correctional officer or a supervisor

9 that the woman was about to deliver the baby, at

10 that time the correctional officer would remove the

11 shackles from a pregnant woman who is hospitalized;

12 correct?

13

A. Correct.

14

Q. And that was the policy and practice that

15 was followed in regards to pregnant women that were

16 brought to the hospital prior to August of 2008?

17

A. Correct.

18

Q. So that if a woman in 2008 was pregnant

19 either from MOM's or from the jail and she went to

20 the hospital, she would be shackled; correct?

21

A. Correct.

22

Q. Until such time that a doctor said the woman

23 is about to deliver the baby; correct?

24

A. Correct.

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119

1

MR. SMITH: Or words to that effect.

2 BY MR. MORRISSEY:

3

Q. All right. Now, in August of 2008 a decision

4 was made by you and Superintendent Hickerson that in

5 the future not only would women who are in the MOM's

6 program not have a guard present with them once they

7 were hospitalized, correct, but also those women

8 would not be restrained with shackles once they

9 arrived at the hospital; correct?

10

Do you understand the question?

11

A. No, sir.

12

Q. Okay. You as the then-current Superintendent

13 of External Operations in August of 2008 met with

14 Superintendent Hickerson; correct?

15

A. Correct.

16

Q. And the two of you along with Assistant

17 Director Romero agreed that in the future that women

18 assigned to the MOM's program once they arrived at

19 the hospital would not be under a correctional

20 officer's supervision; correct?

21

MR. SMITH: There's no Assistant Director

22 Romero. He was not involved in the decision making.

23 He was just informed of it. You're making it sound

24 like he was part of the decision.

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120

1

MR. MORRISSEY: Okay. Let me rephrase the

2 question then.

3 BY MR. MORRISSEY:

4

Q. In August of 2008 for women that were from

5 the MOM's program, you and Superintendent Hickerson

6 agreed that External Operations would no longer

7 provide security for those women when they were

8 hospitalized; correct?

9

MR. SMITH: From the MOM's program.

10

MR. MORRISSEY: From the MOM's program.

11 BY THE WITNESS:

12

A. Correct.

13 BY MR. MORRISSEY:

14

Q. Would it be correct that in regards to women

15 assigned to Division 3 who were pregnant but came to

16 the jail after August of 2008, the same protocol was

17 and is being followed in regards to continuing to

18 have External Operations' officers monitor them while

19 they were in the hospital?

20

A. Yes.

21

MR. SMITH: Yes. There's no one else to

22 watch them.

23 BY MR. MORRISSEY:

24

Q. And is it also true that after August of

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121

1 2008 in regards to women that came to the hospital

2 from Division 3 and who were pregnant, those women

3 remained shackled until a doctor told the

4 correctional officer guarding the woman that the

5 woman is about to deliver a baby?

6

A. Yes, sir.

7

MR. MORRISSEY: I have nothing further.

8

MR. SMITH: Okay. I have just a few

9 questions to clarify this. Believe me, a few.

10

FURTHER EXAMINATION

11 BY MR. SMITH:

12

Q. You know that when a person is arrested and

13 is pregnant, they have an option to go into the MOM's

14 program; correct?

15

A. Correct.

16

Q. Okay. And generally they go over a series

17 of questions, and they agree --

18

MR. MORRISSEY: Again, I'm going to object to

19 the leading question.

20

MR. SMITH: Then object.

21

MR. MORRISSEY: All right.

22

MR. SMITH: Fine.

23

MR. MORRISSEY: It is a continuation

24 objection.

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122

1 BY MR. SMITH:

2

Q. Okay. And then if they agree to cooperate

3 and comply with these conditions, they are then

4 shipped from the compound to the MOM's program;

5 correct?

6

A. Yes, sir.

7

Q. And then when that mother, that inmate is

8 ready to have a baby, you know that a counselor

9 takes the inmate from MOM's to the hospital?

10

MR. MORRISSEY: Again, objection to form.

11 BY MR. SMITH:

12

Q. Correct?

13

A. Correct.

14

Q. So you have a body from MOM's there watching

15 the MOM's inmate; correct?

16

A. Correct.

17

Q. Now, the difference with a person from

18 Division 3 is, there's nobody. There's no MOM's

19 program. There's no counselor. It's just her going

20 by herself to the hospital. Therefore, External Ops

21 still has to watch that person?

22

A. Correct.

23

MR. SMITH: I don't have anything more.

24

MR. MORRISSEY: I don't have anything further

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123

1 questions. Okay. Thanks a lot.

2

All right. For the record, my client,

3 Ms. Zaborowski, came down at the request of the

4 State's Attorney for a deposition today. Her

5 deposition was scheduled for 11:30.

6

Unfortunately, the deposition of

7 Superintendent Holmes ran over to 1:00 o'clock now,

8 and Mr. Smith has an engagement this afternoon that

9 he can't break.

10

So by agreement of the parties, we're

11 going to continue her deposition. Hopefully, she

12 won't have to be deposed.

13

MR. SMITH: Hopefully, but we know that we

14 just went too long with the first deponent, and we

15 have court next week.

16

Let me talk to you, though, before.

17

MR. MORRISSEY: I want to talk to you.

18

(WHEREUPON, the deposition was

19

adjourned as indicated herein.)

20

21

22

23

24

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Exhibit 3

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

CLEVE COTTON, III and DARRYL T.

)

SCOTT, individually and on behalf of the )

class defined herein,

)

)

Plaintiffs,

)

)

v.

)

)

ASSERT ACCEPTANCE, LLC,

)

)

Defendant.

)

No. 07 C 5005

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiffs Cleve Cotton, III and Darryl T. Scott bring the present one-count First

Amended Complaint against Defendant Asset Acceptance, LLC (“Asset Acceptance”), alleging

violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1601, et seq.

Before the Court is Plaintiffs’ Motion for Class Certification pursuant to Federal Rule of Civil

Procedure 23. For the following reasons, the Court, in its discretion, grants Plaintiffs’ Rule 23

motion.

BACKGROUND

In their First Amended Complaint, Plaintiffs allege that Asset Acceptance is engaged in

the business of purchasing charged-off consumer debts, including telecommunications debts, and

enforcing the debts against consumers. (R. 8-1, First Am. Compl. ¶ 9.) On February 26, 2007,

Asset Acceptance filed a lawsuit against Cotton in the Circuit Court of Cook County to collect a

debt for personal telecommunications services. (Id. ¶ 14.) The state court entered a default

judgment of $2,373.00 against Cotton in June 2007. (Id.) On or about June 18, 2007, Asset

Plaintiffs' Exhibit 3

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Acceptance filed a lawsuit against Scott in the Circuit Court of Cook County to collect a debt for personal telecommunications services. (Id. ¶ 15.) Asset Acceptance filed these state court lawsuits as an assignee of AT&T, a telecommunications company regulated by the Federal Communications Commission. (Id. ¶ 16.)
Plaintiffs further allege that the charges for which recovery was sought in their state court lawsuits were more than two years old and that the applicable statute of limitations to an action for the recovery of charges by a telecommunications carrier regulated by the Federal Communications Commission is two years pursuant to 47 U.S.C. § 415. (Id. ¶¶ 17, 18.) Plaintiffs also allege that Asset Acceptance regularly files and threatens to file lawsuits on federally-regulated telecommunications debts that are more than two years old at the time of the filing. (Id. ¶ 22.) Furthermore, Plaintiffs contend that Asset Acceptance engages in a pattern and practice of filing lawsuits on time-barred debts of modest amounts knowing that the persons sued could not retain counsel to defend such suits except by paying an amount comparable to that sought in the lawsuits. (Id. ¶ 26.) Plaintiffs thus maintain that Asset Acceptance’s conduct constitutes both a deceptive and unfair collection practice in violation of the FDCPA. (Id. ¶ 28.)
LEGAL STANDARD Federal Rule of Civil Procedure 23(a) states that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006).

2 Plaintiffs' Exhibit 3

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Failure to meet any of these Rule 23(a) requirements precludes class certification. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993).
In addition to satisfying the requirements under Rule 23(a), a party seeking class certification must also establish that the proposed class satisfies one of the requirements set forth in Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Oshana, 472 F.3d at 513. Here, Plaintiffs request certification of the proposed class pursuant to Rule 23(b)(3), which applies when “the questions of law 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.P. 23(b)(3); see also Amchem Prods., 521 U.S. at 615. Under Rule 23(b)(3), members of a certified class may opt out and pursue their claims individually. See In re Allstate Ins. Co., 400 F.3d 505, 508 (7th Cir. 2005).
The party seeking class certification has the burden of establishing that certification is proper. See Oshana, 472 F.3d at 513; Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). In determining whether a party has carried that burden, a court need not accept all of the complaint’s allegations as true. See Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Rather, in deciding whether to certify a class, the court “should make whatever factual and legal inquiries [that] are necessary under Rule 23.” Id. at 676. Finally, district courts have broad discretion in determining motions for class certification. See Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S.Ct. 2326, 2334, 60 L.Ed.2d 931 (1979); Payton v. County of Carroll, 473 F.3d 845, 847 (7th Cir. 2007).
ANALYSIS Plaintiffs define the class they seek to certify as follows:
3

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The class consists of (a) all individuals (b) against whom defendant Asset Acceptance, LLC filed a lawsuit in Illinois, Wisconsin or Indiana (c) to collect a debt for cellular or other federally regulated telecommunications services (d) where any of the telecommunications charges antedated the filing of the lawsuit by two years, (e) which lawsuit was pending at any time during a period beginning one year prior to the filing of this action and ending 20 days after the filing of this action.

(Id. ¶ 32.)

I. Federal Rule of Civil Procedure 23(a)

A.

Numerosity

To satisfy the numerosity requirement under Rule 23(a)(1), Plaintiffs must show that the

number of members in the proposed class is so large that joinder would be impracticable. See

Pruitt v. City of Chicago, Ill., 472 F.3d 925, 926 (7th Cir. 2006). Although there is no bright-line

rule for numerosity, a class of at least forty members is sufficient to satisfy the numerosity

requirement. See id.; Hinman v. M &M Rental Ctr., Inc., 545 F.Supp.2d 802, 805 (N.D. Ill.

2008). Because Plaintiffs point to evidence that there are approximately 7,900 individuals who

may fit the class definition, Plaintiffs have met the numerosity requirement under Rule 23(a)(1).

B.

Commonality

Rule 23(a)(2) requires that Plaintiffs prove the existence of questions of fact or law

common to the proposed class. See Culver v. City of Milwaukee, 277 F.3d 908, 910 (7th Cir.

2002) (class must be reasonably homogeneous); Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.

1998). “A common nucleus of operative fact is usually enough to satisfy the commonality

requirement of Rule 23(a)(2).” Keele, 149 F.3d at 594. A common nucleus of fact exists when a

defendant has “engaged in standardized conduct towards members of the proposed class.” Id.

Plaintiffs contend that the common nucleus of operative fact is that Asset Acceptance

brings or threatens to bring lawsuits to collect federally regulated telecommunications debts that

4

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are over two years old, and thus are time-barred under the Federal Communications Act

(“FCA”). See 47 U.S.C. § 415. Plaintiffs also maintain that Asset Acceptance’s conduct gives

rise to two legal questions: (1) whether the FCA statute of limitations applies; and (2) whether

filing or threatening to file time-barred lawsuits violates the FDCPA.

Asset Acceptance, on the other hand, argues that because many of the proposed class

members’ telephone bills contain both state-regulated and federally-regulated services, their

claims are not subject to common facts. It is well-established, however, that “[t]he fact that there

is some factual variation among the class grievances will not defeat a class action.” See Rosario

v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992); see also Keele, 149 F.3d at 594 (“factual

variations among class members’ grievances do not defeat class action.”).1 Indeed, because

Asset Acceptance’s alleged conduct was standardized as to the putative class members and the

class members share factual and legal questions, Plaintiffs have met their burden in establishing

the commonality requirement under Rule 23(a)(2). See Keele, 149 F.3d at 594; see, e.g.,

Cicilline v. Jewel Food Stores, Inc., 542 F.Supp.2d 831, 836 (N.D. Ill. 2008).

C.

Typicality

The typicality and commonality requirements are usually interrelated. See Rosario, 963

F.3d at 1018. Under Rule 23(a)(3), “the typicality requirement primarily directs the district

court to focus on whether the named representatives’ claims have the same essential

characteristics as the claims of the class at large.” Retired Chicago Police, 7 F.3d at 596-97; see

1 Asset Acceptance also argues that Plaintiffs’ claims cannot be adjudicated on a classwide basis because each putative class member’s claims hinges on individualized evidence. The Court will discuss Asset Acceptance’s class-wide proof argument under the predominance requirement pursuant to Rule 23(b)(3).
5

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also De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (“plaintiff’s

claim is typical if it arises from the same event or practice or course of conduct that gives rise to

the claims of other class members and his or her claims are based on the same legal theory.”).

Here, the issues are plain enough from the pleadings to determine that the named

Plaintiffs’ interests encompass the putative class members’ interests based on Plaintiffs’

allegations that Asset Acceptance brings collection actions on telecommunications debts after

the federal statute of limitations has run. See General Tel. Co. of Sw. v. Falcon, 457 U.S. 147,

160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); see also Stokely-Van Camp, 713 F.2d at 232

(plaintiff’s claim typical if it arises from same practice or course of conduct giving rise to other

class members’ claims). Nevertheless, Asset Acceptance asks the Court to “probe behind the

pleadings” in an attempt to show that Plaintiffs’ claims have factual differences and that

Plaintiffs’ claims lack merit. See Falcon, 457 U.S. at 160. At this stage of the proceedings,

however, the Court will not “delve into the merits of the ultimate issues in the case.” See

Cicilline, 542 F.Supp.2d at 835. Moreover, class members’ claims need not be factually

identical to satisfy the typicality requirement. See Brieger v. Tellabs, Inc., 245 F.R.D. 345, 350

(N.D. Ill. 2007); Flanagan v. Allstate Ins. Co., 242 F.R.D. 421, 428 (N.D. Ill. 2007).

In short, in pursuing their own claims, Plaintiffs will advance the interests of the

proposed class. See Falcon, 457 U.S. at 156; Keeler, 149 F.3d at 595. Therefore, Plaintiffs have

met their burden in establishing the typicality requirement under Rule 23(a)(3).

D.

Adequacy

“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest

between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625; see also

Asher v. Baxter Int’l Inc., 505 F.3d 736, 737 (7th Cir. 2007) (“Minimum standards of adequacy

6

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are the domain of Fed.R.Civ.P. 23(a)(4), which permits a class action only if ‘the representative parties will fairly and adequately protect the interests of the class.’”). To establish the adequacy requirement, class representatives must show that (1) their claims are not antagonistic or in conflict with those of the proposed class, (2) they have sufficient interest in the outcome of the case, and (3) experienced, competent counsel represents them. See Rosario, 963 F.2d at 1018; see also Falcon, 457 U.S. at 156.
Asset Acceptance does not challenge the adequacy of Plaintiffs’ counsel. Instead, Asset Acceptance argues that because Scott believes that he does not owe a debt on his telecommunication charges, his claim is antagonistic to the other putative class members’ claims. Whether Scott believes he owes the disputed debt does not change the legal theory on which he bases his claim, namely, that Asset Acceptance filed a time-barred claim against him in state court in violation of the FDCPA. Asset Acceptance also argues that Cotton is an inadequate class representative because he wants to remove the state court judgment from his credit record and does not understand the class claims. Not only does Asset Acceptance’s argument misstate Cotton’s deposition testimony, but Cotton’s alleged misunderstanding of his claim does not defeat class certification. See Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 300 (N.D. Ill. 2005) (“It is well established that a named plaintiff’s lack of knowledge and understanding of the case is insufficient to deny class certification, unless his ignorance unduly impacts his ability to vigorously prosecute the action.”) (internal citation omitted). Asset Acceptance gives no other relevant reason for denying class certification based on the adequacy requirement. Because there are no inconsistencies between Plaintiffs’ claims and the class members’ claims, Plaintiffs have established the adequacy requirement under Rule 23(a)(4). See Uhl v. Thoroughbred Tech. & Telecomm., Inc., 309 F.3d 978, 985 (7th Cir. 2002).
7

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II. Federal Rule of Civil Procedure 23(b)(3)

Under Rule 23(b)(3), the Court must determine whether (1) the questions of fact or law

common to the class members predominate over questions affecting only the individual class

members, and (2) a class action is superior to other available methods of adjudicating plaintiffs’

claims. See Amchem Prods., 521 U.S. at 615; In re Bridgestone/Firestone, Inc., 288 F.3d 1012,

1019 (7th Cir. 2002). The Court first turns to the predominance requirement.

A.

Predominance

“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623. In other

words, under Rule 23(b)(3), “each member must share common questions of law or fact with the

rest of the class, therefore making class-wide adjudication of the common questions efficient

compared to repetitive individual litigation of the same questions.” Lemon v. International

Union of Operating Eng’g, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir. 2000). The

existence of factual or legal differences within a class does not foreclose a plaintiff from

establishing predominance. See Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.

1980); see also Radamanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 435 (N.D. Ill.

2003) (“Although the common issues must predominate the case, it is not necessary that the

plaintiff show them to be exclusive.”).

When determining if a plaintiff has met the predominance requirement, district courts

may look beyond the pleadings and determine whether the parties’ claims are subject to proof by

common evidence. See Radamanovich, 216 F.R.D. at 43; see also Falcon, 457 U.S. at 161.

(courts may “probe behind the pleadings before coming to rest on the certification question”). If

the liability issues are not subject to class-wide proof – but instead require individualized

8

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determinations – the class’ common issues do not predominate. See Radamanovich, 216 F.R.D. at 435-36; see also Hyderi v. Washington Mut. Bank, FA 235 F.R.D. 390, 398 (N.D. Ill. 2006) (“predominance is concerned with whether the putative named plaintiffs can, through their individualized cases, offer proof on a class-wide basis”) (citing Hewitt v. Joyce Beverages of Wis., Inc., 721 F.2d 625, 628-29 (7th Cir. 1983)).
Key to Plaintiffs’ class definition is the requirement that Asset Acceptance filed a lawsuit against each putative class member “to collect a debt for cellular or other federally regulated telecommunications services.” Based on the class definition, Asset Acceptance argues that Plaintiffs’ proposed class depends on factual determinations that will be different for each class member. Specifically, Asset Acceptance maintains that the potential class members will have telephone bills that contain both federally-regulated interstate charges in which the federal twoyear statute of limitations may apply, see 47 U.S.C. § 415, and state-regulated intrastate charges in which the state statutes of limitations may apply. See 735 ILCS 5/13-206 (ten-year limitations period for breach of contract claims in Illinois); Wis. Stat. § 893.43 (six-year limitations period for breach of contract claims in Wisconsin); Ind. Code §§ 34-11-2-9, 344-11-2-11 (depending on the nature of the contract, ten or six-year limitations period for breach of contract claims in Indiana). As such, Asset Acceptance argues that the each of the putative class member’s claims and defenses hinges on individualized evidence.
In support of its argument, Asset Acceptance provides the Court with a sampling of 400 files of individuals who potentially meet Plaintiffs’ proposed class definition. (See R. 64-1, Ex. A, M. Beach Decl., Ex. 1, Sampling.) Michael Beach, Asset Acceptance’s Assistant Vice President of Legal, explained in his declaration that as part of the discovery in this matter, Asset Acceptance agreed to produce a 5% sampling of the accounts of approximately 7,908 individuals
9

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who potentially fall within the putative class defined in Plaintiff’s First Amended Complaint.

(Id., M. Beach Decl. ¶ 7.) The sampling reveals that of the 400 accounts compiled,

approximately 235 include charges for land line services, approximately 52 accounts include

charges for cellular services, and that 113 accounts include charges for both land line and

cellular services. Accordingly, Asset Acceptance argues that the Court will be required to

conduct an individual inquiry into each of the debtor’s bills to determine which debts were time-

barred when Asset Acceptance filed the state court lawsuits.

A review of these documents, however, reveals that identifying members of the proposed

class is not as difficult as Asset Acceptance suggests. Instead, the process of identifying class

membership and proof of class members’ FDCPA claims are ministerial in nature because the

information can be easily extracted from the class members’ phone bills. Compare Lau v. Arrow

Fin, Servs., LLC, 245 F.R.D. 620 (N.D. Ill. 2007) (inquiring into each class member’s records to

determine class membership does not preclude class certification) with Simer v. Rios, 661 F.2d

655, 669 (7th Cir. 1981) (membership in class depended on individual’s state of mind); Fletcher

v. ZLB Behring LLC, 245 F.R.D. 328, 332 (N.D. Ill. 2006) (proof of fraud allegations were

plaintiff-specific). Under the present circumstances, whether an individual fits the definition of

the proposed class, as well as the evidence supporting their FDCPA claims, can be determined

on an objective, class-wide basis, and thus Asset Acceptance’s argument that liability questions

are not subject to class-wide proof fails.

B.

Superiority

Finally, the Court must determine whether a class action is superior to other methods for

the adjudication of the proposed class’ claims. See Szabo, 249 F.3d at 676. A class does not

satisfy the superiority requirement if its claims are not governed by the same legal rules. See In

10

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re Bridgstone/Firestone, 288 F.3d at 1015. Here, the proposed class’ claims concern the same alleged violations of the FDCPA, namely, whether Asset Acceptance’s conduct constitutes an unfair or deceptive collection practice. See 15 U.S.C. §§ 1692e, 1692f. In addition, the Seventh Circuit teaches that class treatment for actions involving thousands of consumer class members with the same claim are superior to individual actions:
Rule 23(b)(3) was designed for situations such as this, in which the potential recovery is too slight to support individual suits, but injury is substantial in the aggregate. Reliance on federal law avoids the complications that can plague multi-state classes under state law, and society may gain from the deterrent effect of financial awards. Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006) (internal citations omitted); see also Cicilline, 542 F.Supp.2d at 838 (“Class certification is usually considered a superior method of adjudicating claims involving standardized conduct.”). The Court’s conclusion that a class action is superior to individual lawsuits under the circumstances is also supported by “the policy at the very core of the class action mechanism[,]” which “is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997). Plaintiffs have thus established superiority under Rule 23(b)(3).

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CONCLUSION For these reasons, the Court grants Plaintiff’s Motion For Class Certification pursuant to Federal Rule of Civil Procedure 23. Dated: June 26, 2008
ENTERED
_____________________________ AMY J. ST. EVE United States District Judge

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Exhibit 4

Case: 1:08-cv-06946 Document #: 26 Filed: 06/15/09 Page 151 of 163 PageID #:202

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

MICHAEL PARISH, CURTIS L. OATS,

)

LEILA KHOURY, SEAN DRISCOLL, CARLA )

LOFTON, ROY CLEAVES, LISA BROWN, )

DAN TAYLOR, DEAN MILLER, KEVIN

)

SANDERS, STACEY CLARK, and

)

CARLOTTE WATSON,

)

)

Plaintiffs,

)

)

vs.

)

)

SHERIFF OF COOK COUNTY and

)

COOK COUNTY, ILLINOIS,

)

)

Defendants.

)

Case No. 07 4369

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge:
Michael Parish and eleven other plaintiffs have sued the Sheriff of Cook County and Cook County for damages under 42 U.S.C. § 1983. Plaintiffs allege that the defendants maintained a policy or practice of deliberate indifference to their serious medical needs and thus violated their Fourteenth Amendment rights while they were confined at the Cook County Jail (CCJ). Plaintiffs have moved to certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). For the reasons stated below, the Court grants plaintiffs’ motion
Facts The Court takes the following facts from plaintiffs’ Second Amended Complaint. Plaintiffs allege that the defendants have implemented a policy of denying or delaying necessary prescription medication to detainees at CCJ. The policy allows medical

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technicians to deny various kinds of necessary prescribed medication solely on the basis of a “brief and cursory interview,” without inquiring into a detainee’s medical history and without consulting a physician. 2nd Am. Compl., ¶¶ A.c., B.c.
Plaintiffs divide their allegations into two general categories: psychotropic medication and non-psychotropic medication. Specifically, plaintiffs contend that the defendants’ policy allows medical technicians to deny prescribed psychotropic medication to detainees after a short interview. Instead, these detainees are routinely given anti-depressants, which are less costly than the psychotropic medications. Several of the plaintiffs reported suffering behavioral problems while on anti-depressants that they had not experienced while taking their prescribed psychotropic medication.
With respect to detainees who have been prescribed non-psychotropic medication, plaintiffs allege that medical histories are taken in overcrowded areas with little privacy. They also allege that the defendants’ policy allows medical technicians to discontinue prescribed medications required to prevent serious injury or death. The policy also prohibits physicians at the jail from prescribing medication for chronic pain. Finally, plaintiffs allege that there is no speedy or efficient procedure that allows a detainee to see a physician after a medical technician has denied any form of medication.
Parish alleges that he was transferred to the jail on September 27, 2005 from the Illinois Department of Corrections, where he had received psychotropic medication on a regular basis. Although he arrived at the jail with the medication, the medical technician concluded that Parish should no longer receive the psychotropic medication. Parish tried to obtain the medication for nine months. After an unsuccessful suicide attempt,
2

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Parish was finally prescribed the medication. Parish was released in 2006 but returned to the CCJ in 2007. Although Parish informed the medical technician of his need for psychotropic mediation, the medical technician again denied him the medication. Parish tried repeatedly to see a physician. Only after another unsuccessful suicide attempt was he finally permitted to see a physician who prescribed psychotropic medication.
The remaining plaintiffs all allege that at their intake interviews , they informed medical technicians of their condition and their prescribed medications. Nevertheless, the medical technicians denied them medications prescribed for conditions including mental illness, severe chronic pain, enlarged prostate, heart disease, acid reflux, congestive heart failure, asthma, hepatitis C, and a surgical wound. As a result, the plaintiffs suffered a variety of adverse consequences, including behavioral problems, severe pain, and an infection requiring hospitalization.
Plaintiffs filed suit in August 2007. They contend that defendants implemented a policy or practice at the CCJ of denying necessary prescribed medication in a manner that constitutes deliberate indifference to their serious medical needs, in violation of their Fourteenth Amendment rights. Plaintiffs have moved the Court to certify, under Federal Rule of Civil Procedure 23(b)(3), a class of “all persons confined at the Cook County Jail on and after August 3, 2005 who provided notice that he or she had been taking prescription medication for a serious health need and who was not provided with appropriate medication within 24 hours thereafter.”
Discussion The Court may certify a case as a class action if the party seeking certification demonstrates that it has met all the requirements of Rule 23(a) and one of the
3

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requirements of 23(b). Under Rule 23(a), the party must prove that the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the proposed class; the class representatives’ claims are typical of the claims of the class; and the representatives will fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a)(1)-(4). In this case, plaintiffs seek certification under Rule 23(b)(3). To succeed, they must show that “questions of law or fact common to the members of the class predominate over any questions affecting individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).
Plaintiffs bear “the burden of demonstrating that certification is appropriate.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). The Court need not rely solely on the allegations in plaintiffs’ complaint in assessing whether to certify a class, but instead “should make whatever factual and legal inquiries are required under Rule 23.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). A. Numerosity
Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is impracticable. Courts may not rely on conclusory allegations as to the size of a class or the impracticability of joinder, Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989), and may require that a plaintiff prove class size through affidavits or other evidence. Szabo, 249 F.3d at 676. The plaintiff need not, however, specify the exact number of persons in the class. Marcial, 880 F.2d at 957.

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In this case, the proposed class consists of detainees who requested but were denied necessary prescribed medications while confined at CCJ on or after August 3, 2005. Plaintiffs first based their claim of numerosity on allegations that they had uncovered over 300 additional detainees who filed grievances concerning the denial of prescription medication. Defendants pointed out that there was no evidence that the grievances included people who were similarly situated to plaintiffs.
The Court requested that the plaintiffs submit additional evidence of numerosity. Plaintiffs submitted over 180 affidavits executed by putative class members, an excerpt of a report by the court-appointed monitor in Duran v. Sheahan, Case No. 74 C 2949 (N.D. Ill.), a 2008 report by the United States Department of Justice on conditions at CCJ, and the depositions of three former CCJ employees.
Defendants attack the affidavits as “cookie-cutter” documents with only “three or four-line complaints” but make no mention of the other evidence offered. Def. Supp. Resp. at 1. Defendants’ argument is unavailing. Other courts have accepted similar affidavits to support numerosity. See, e.g., Jackson v. Sheriff of Cook County, No. 06 C 0493, 2006 WL 3718041, at *3 n. 7 (N.D. Ill. Dec. 14, 2006) (finding that the fact that fourteen affidavits submitted in support of class certification contained mostly boilerplate text did not diminish their likely veracity). The affidavits are statements made under oath, and defendants have not produced anything suggesting that they are false or untrustworthy. In addition, the reports by the court-appointed monitor and the Department of Justice reflect that numerous detainees have complained that they have been denied prescription medication. The Court finds the affidavits and the other evidence plaintiffs have submitted sufficient to establish the requisite numerosity.
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B. Commonality Rule 23(a)(2) requires the existence of questions of law or fact common to the
class. “‘A common nucleus of operative facts is usually enough to satisfy the commonality requirement of Rule 23(a)(2).’” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). A defendant’s pattern of standardized conduct generally is sufficient to constitute a common nucleus of operative facts. Id.
Plaintiffs contend that there are common questions of law and fact with respect to the existence and the constitutionality of the policy. Defendants argue that determining whether the decision to discontinue particular medications amounts to deliberate indifference requires an individualized inquiry.
Defendants’ argument improperly conflates the Rule 23(b)(3) requirement of predominance of common issues with the Rule 23(a)(2) requirement of existence of common issues. In any event, defendants appear to have misconstrued plaintiffs’ claims. Plaintiffs’ focus, at least for liability purposes, is on the defendants’ alleged policy of allowing unqualified personnel to usurp decisions made by medical doctors and other categorical policies, not on the particulars of individualized decisions. When “defendants have engaged in standardized conduct toward members of the proposed class,” the class satisfies Rule 23(a)(2)’s commonality requirement. Keele, 149 F.3d at 594.
In this case, plaintiffs have identified two factual and legal issues common to the class: whether defendants enforce the alleged policy and whether that policy violates

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the Fourteenth Amendment. A common legal theory is generally sufficient to support commonality. Id. Plaintiffs’ claims clearly share the same legal theory and therefore meet the commonality requirement. See Arreola v. Godinez, --- F.3d ---, No. 07-1700, 2008 WL 4553059 (7th Cir. Oct. 14, 2008) (finding that jail detainees’ claims challenging the constitutionality of a medical policy met the commonality requirement); Young v. County of Cook, No. 06 C 552, 2007 WL 1238920, at *5 (N.D. Ill. April 25, 2007) (finding commonality requirement satisfied when detainee class challenged the constitutionality of a blanket strip search policy); Jackson, 2006 WL 3718041, at *4 (finding that plaintiffs’ challenge to jail’s standardized STD testing met the commonality requirement even though factual distinctions between class members existed). C. Typicality
The typicality requirement focuses on “whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). The representatives’ claims are “typical if [they] arise[ ] from the same event or practice or course of conduct that gives rise the claims of the other class members and [their] claims are based on the same legal theory.” Id. Factual distinctions between the representative parties’ claims and the class members’ claims does not destroy typicality so long as the claims share the same legal theory. Id.
Plaintiffs laid out their own factual allegations and later produced 180 affidavits in support of their claim of typicality. Again, defendants’ arguments focus on predominance rather than typicality. In essence, they argue that the named plaintiffs’

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claims vary as to the type of illness complained of and the type of medication at issue. Defendants also contend that medical follow-up differed drastically among the plaintiffs and that these differences destroy typicality.
Between the complaint and the supplemental affidavits, the plaintiffs have met their burden with respect to typicality. Although the affidavits differ with respect to the individual affiants’ particular medical needs and prescriptions, each affiant swore that she notified CCJ personnel of her condition and her prescription, and that she either never received the medication or received it days or weeks later. These are precisely the underpinnings of the named plaintiffs’ claims. Because the “representatives’ claims have the same essential characteristics of the class at large,” plaintiffs have satisfied the typicality requirement. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (internal quotation marks and citation omitted). D. Adequacy
Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To satisfy this requirement, the interests of the representative parties must coincide with those of the rest of the class, and class counsel must be prepared and able to prosecute the action effectively. See Retired Police Ass’n, 7 F.3d at 598; Levie v. Sears, Roebuck & Co., 496 F. Supp. 2d 944, 950 (N.D. Ill. 2007).
Defendants do not challenge the adequacy of plaintiffs’ counsel, nor do they contend plaintiffs’ interests are at odds with those of other class members. Instead, defendants focus their objections on the individual plaintiffs’ alleged lack of credibility. In

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support, defendants list the criminal histories of eight plaintiffs, which include convictions for drug possession, robbery, and theft. Defendants assert that felons cannot be adequate class representatives, but they cite only a Second Circuit decision stating that district courts may consider credibility in adequacy of representation determinations. Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2nd Cir. 1998).
This argument is lacking in merit. Several courts have certified or have approved the certification of classes of prisoner and detainee plaintiffs. Arreola, 2008 WL 4553059, at *8-*11; Jackson, 2006 WL 3718041, at *5. If defendants were correct, there would be no such thing as a class action in the prison or jail context. In any event, defendants have failed to provide any basis to believe that the named plaintiffs’ criminal histories differentiate them from other class members or make their interests different from those of the class as a whole. E. Predominance and superiority
Rule 23(b)(3) requires the Court to find “that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that the class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). Generally, when a class challenges a uniform policy or practice, the validity of the policy or practice tends to be the predominant issue in the ensuing litigation. See General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n.15 (1982) (“Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees.”); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.

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1992) (holding that certification was appropriate when plaintiffs alleged that defendant had “an ongoing scheme to defraud and deceive prospective students”).
Plaintiffs challenge what they allege are policies and practices applied to the entire detainee population. Defendants contend that a class would be unmanageable because there are too many individual issues. Defendants assert that to determine liability, the Court will have to examine at least nine specific questions, including the relative urgency of each individual’s need for medication, whether CCJ personnel were subjectively aware of each individual detainee’s serious medical need, and the actual harm suffered by each individual. They maintain that individual determinations are the only way to resolve a deliberate indifference claim.
As the Court previously noted, plaintiffs’ claims focus on the policy of allowing CCJ personnel lacking medical degrees to in effect overrule decisions made by medical doctors regarding their patients’ medical needs, as well as other allegedly categorically applied policies. Plaintiffs’ primary contention is that the creation and execution of these policy amounts to deliberate indifference. In this regard, the individual stories of particular detainees may be illustrative, but they are unlikely to be determinative of the issue of liability. The predominant issues in the litigation, at least with regard to liability, will be the existence and constitutionality of the defendants’ alleged policies. A class action is the most efficient device for this kind of case because the legality of the policies can be determined in one proceeding.
By contrast, determination of damages for the class members likely will have to be done individually, as the nature and extent of any harm are likely to vary from person to person. Rule 23, however, provides enough flexibility to deal with that while still
10

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certifying a class. The Court may bifurcate liability and damages trials or appoint a magistrate judge to preside over individual damages proceedings. Carnegie v. Household Intern., Inc., 376 F.3d 656, 661 (7th Cir. 2004). As the Seventh Circuit stated earlier this month, “[a]lthough the extent of each class member’s damages might vary, district judges can devise solutions to address that problem if there are substantial common issues that outweigh the single variable of damages amounts.” Arreola, 2008 WL 4553059, at *11 (noting that the presence of individual damages issues did not preclude certification of a class where the claim alleged deliberate indifference to the medical needs of jail detainees). This is precisely such a case. The core issues, which predominate over all others, are the common issues the Court has previously identified.
Conclusion For the foregoing reasons, the Court grants plaintiffs’ motion for class certification [docket no. 21]. The Court certifies the following class under Rule 23(b)(3): all persons confined at the Cook County Jail on and after August 3, 2005 who provided notice that he or she had been taking prescription medication for a serious health need and who was not provided with appropriate medication within 24 hours thereafter. The case is set for a status hearing on November 13, 2008 at 9:30 a.m. Counsel are directed to confer regarding a proposed form of class notice and to submit a proposal or proposals to the Court by November 10, 2008.

Date: October 24, 2008

________________________________ MATTHEW F. KENNELLY United States District Judge

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Exhibit 5

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Plaintiffs' Exhibit 5 (excerpt of logbook for Simone Jackson)

Page 1

 
 Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 1 of 14 PageID #:284

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

Catherine Zaborowski and Simone Jackson, individually and on behalf of a class,
Plaintiffs,
vs.
SHERIFF OF COOK COUNTY, And COOK COUNTY ILLINOIS
Defendant.

)

)

)

)

)

)

No. 08 CV 6946

)

)

Judge St. Eve

)

)

)

)

SHERIFF THOMAS DART’S RESPONSE TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

NOW COMES Defendant SHERIFF THOMAS DART, by and through his attorney

ANITA ALVAREZ, STATE‟S ATTORNEY OF COOK COUNTY, by her Assistant State‟s

Attorney Pat Smith, for Defendant‟s Response to Plaintiffs‟ Motion for Class Certification

asking this court to deny the motion for class certification because the Plaintiffs fail to meet the

criteria under Fed. R. Civ. P. 23. In support, the Defendant states as follows:

I

INTRODUCTION

The motion for class certification should be denied. Class treatment is inappropriate

because each incident of shackling is an individualized factual event subject to case-by-case

analysis to determine if each occurrence was cruel and unusual punishment under the Eighth

Amendment, and/or a violation of Illinois § 730 ILCS 125/17.5 which states:

Notwithstanding any other statute, directive, or administrative regulation, when a pregnant female prisoner is brought to a hospital from a county jail for the purpose of delivering her baby, no handcuffs, shackles, or restraints of any kind may be used during her transport to a medical facility for the purpose of

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 2 of 14 PageID #:285
delivering her baby. Under no circumstances may leg irons or shackles or waist shackles be used on any pregnant female prisoner who is in labor. Upon the pregnant female prisoner‟s entry to the hospital delivery room, a county correctional officer must be posted immediately outside the delivery room. The Sheriff must provide for adequate personnel to monitor the pregnant female prisoner during her transport to and from the hospital and during her stay at the hospital.
The Plaintiffs (Zabrowski and Jackson 08 C 6946) seek to have the class certified under Federal Rules of Civil Procedure 23(b)(3). Plaintiffs will likely seek to join three additional parties, claimants in other suits against Sheriff Dart, as class members (Bryant 09 C 1546, Embrey 09 C 3470 and Morales 09 C 3546). Plaintiffs define the proposed class as, “All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.” (Plaintiffs‟ Motion for Class Certification, CM/ECF Document 26, P. 1). Plaintiffs do not make a facial challenge to the constitutionality of the Illinois statute. Instead Plaintiffs‟ argue the Sheriff‟s policies and procedures to comply with the Illinois pregnant inmate statute, specifically in regards to each plaintiff‟s experience while at Stroger hospital, were unconstitutional in their application. (See CM/ECF Document 26).
This case turns on individual issues. Plaintiffs and Defendant together concede the constitutionality of the statute in question. It is the constitutionality of the application of that Illinois statute to a particular set of events which is the issue in all four cases. However, the constitutionality of the application of a statute is a case-by-case analysis. The purpose of a class action is to establish the law or facts of a multitude of significantly similar cases in a single action where having individual Plaintiffs would be burdensome to the judicial system. When the proper analysis of the cases sought to be included in the classes all require a case-by-case
2

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 3 of 14 PageID #:286
analysis, then the purpose of declaring the class cannot be achieved. Further, Plaintiffs cannot establish numerosity as there are not so many cases involved
that individual treatment is not the preferred method of adjudication. Additionally, Plaintiffs have not suffered any actual injuries (physical injury, emotional injury supported by monetary expense or physical manifestation, or any other kind of injury) and therefore could not be representative of any class. Plaintiffs are also unable to satisfy their burden on most or all of the remaining criteria necessary to establish class certification including: commonality, typicality, adequacy, predominance and superiority. Finally, Plaintiffs‟ definition of whom to include in the class is inappropriate for class certification. Therefore, based upon the above statements and the following supportive arguments, Plaintiffs‟ Motion for Class Certification should be denied.
Standards for Class Certification and Review The Plaintiffs (Zabrowski and Jackson 08 C 6946, Bryant 09 C 1546, Embrey 09 C 3470 and Morales 09 C 3546) seek to have the class certified under Federal Rules of Civil Procedure 23(b)(3). The Court may certify a case as a class action if the party seeking certification demonstrates in a two prong inquiry that the party has met all the requirements of Rule 23(a) and that the claims fall under one of the four types of class actions listed at 23(b)(1)-(3). Under Rule 23(a), the party must prove that the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the proposed class, the class representatives' claims are typical of the claims of the class, and the representatives will fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a)(1)-(4). As for the second prong, Plaintiffs seek to show their claims fall under the class action type defined at Rule 23(b)(3). To succeed, Plaintiffs must show that “questions of law or fact common to the members of the class predominate over any questions affecting individual members, and a class
3

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 4 of 14 PageID #:287
action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3)(emphasis added). Plaintiffs bear “the burden of demonstrating that certification is appropriate.” Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).
In Szabo v. Bridgeport Machs., Inc., 249 F.3d 672 (7th Cir. 2001), the Seventh Circuit stated that, in deciding a motion for class certification, the district court should not assume that whatever the plaintiff alleges is true while disregarding the fact that the defendant contests the plaintiff's position on “key points.” Szabo, 249 F.3d at 674-676. The Court should look beyond the Complaint before deciding the issue of certification. Indeed, the Eighth Amendment analysis and analysis of each individual application of the Illinois statute by Sheriff‟s deputies requires an in depth evaluation of the individualized facts of each pregnancy and each shackling incident making class treatment inappropriate. Therefore, the Court need not rely solely on the allegations in plaintiffs‟ complaint in assessing whether to certify a class, but instead “should make whatever factual and legal inquiries are required under Rule 23.” Id.
Additionally, the definition of the class in the Seventh circuit must be phrased adequately to allow determination of class members. Plaintiffs bear the burden of proving that the class they propose is, in fact, identifiable as a class. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). While Rule 23 does not include a “definiteness” requirement, the Seventh Circuit has accepted that the definition of a proposed class must be “sufficiently definite to permit ascertainment of the class members . . .” Alliance to End Repression v. Rochford, 565 F.2d 975, 977-78 (7th Cir. 1977).
4

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 5 of 14 PageID #:288
Argument a) Individual Treatment is the Proper Analysis of Determining the
Constitutionality of Statutory Applications Statutes are presumed constitutional. Lockport v. Citizens for Community Action at Local Level, Inc., 430 U.S. 259, 272 (1977). The Sheriff is reasonable in relying upon the constitutionality of a statute. General Motors Corp. v. Oklahoma County Bd. Of Equalization, 678 P.2d 233, 237 (Okla. 1983). Therefore, the Illinois Statute § 730 ILCS 125/17.5 is constitutional, and the Sheriff acted appropriately in relying upon that statute. The Defendant admits, without waiving any defenses or admitting to any liability, the particular manner in which adherence to or application of a statute as carried forth in a particular situation can be found unconstitutional. However, determining the constitutionality of the application of a statute to a situation is a case-by-case analysis. Heller v. Doe, 509 U.S. 312, 320 (1993) quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). Case-by-case analyses are, by definition, highly fact specific to the events of that case and are therefore highly individualized. For instance, some of the plaintiffs mentioned above claim to have been shackled hand and foot throughout delivery (Ms. Jackson)(Zabrowski Complaint ¶ 15), while another claims only handcuffing during delivery (Ms. Zabrowski)( Zabrowski Complaint ¶ 10), while yet another claims to have been shackled only before and after delivery (Ms. Bryant)(Bryant Complaint ¶ 8). Some of the plaintiffs bring claims of U.S. Treaty violation (Ms. Embry and Ms. Morales)(Embry Complaint ¶ 7)(Morales Complaint ¶ 8) while the other three claim only constitutional violations. Four plaintiffs had vaginal deliveries while one (Ms. Embry) delivered through a cesarean procedure. (Embry Complaint ¶ 15). Additionally, Ms. Embry states
5

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 6 of 14 PageID #:289
anesthetization while the others do not. (Embry Complaint ¶ 18). Plaintiffs do not even all come from the same location, as some come from the MOMs program while Ms. Morales come from Division 3. (Morales Complaint ¶ 10-11). There are many additional differences, but the point is that the factual specifics and the particulars of when and how each plaintiff was shackled or handcuffed, as well as the particulars of the whole labor experience, differ between the various complaints.
Consequently, while these cases all have the common theme of shackling while pregnant, that theme does not override the necessity of an individualized analysis of each application of the Illinois statute. The four cases at issue here (Zabrowski and Jackson 08 C 6946, Bryant 09 C 1546, Embrey 09 C 3470 and Morales 09 C 3546) therefore, are inappropriate for class certification because there are factual differences, those factual difference require individualized treatment according to precedent, and such treatment runs in stark contrast to class certification.
b) Numerosity Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is impracticable. Courts may not rely on conclusory allegations as to the size of a class or the impracticability of joinder and may require that a plaintiff prove class size through affidavits or other evidence. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989); Szabo, 249 F.3d at 676. The plaintiff need not specify the exact number of persons in the class. Marcial, 880 F.2d at 957. However, recent Seventh Circuit precedent has determined fewer than 14 class members are not sufficient to support a certification of class status. Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008). Further, “the party supporting the class cannot rely on „mere speculation‟ or „conclusory allegations‟ as to the size of the putative class to prove that joinder is impractical for numerosity purposes. Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th
6

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 7 of 14 PageID #:290
Cir. 1990). In this case, Plaintiffs‟ proposed class currently consists of five detainees who were
shackled while at Stroger Hospital, there for the purpose of giving birth from December 4, 2006. Plaintiffs base their claim of numerosity on their unsupported statements to this court that they have “likely more than one hundred” plaintiffs available. (Plaintiff‟s Response to Defendant‟ Motion to Reassign P. 3). However, Plaintiffs have submitted no affidavits executed by putative class members, or any documentation beyond unsupported claims and postulations. Plaintiffs inappropriately make assertions of the existence of enough parties to the putative class to satisfy the numerosity requirement without any support for this claim. With only five plaintiffs in four cases and no supporting affidavits from additional parties, the Plaintiffs fail to meet the burden of establishing numerosity.
c) Commonality Rule 23(a)(2) requires the existence of questions of law or fact common to the class. “A common nucleus of operative facts is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). It may be true that when “defendant[s] have engaged in [identified] standardized conduct toward members of the proposed class,” the class satisfies Rule 23(a)(2)‟s commonality requirement. See e.g. Keele v. Wexler, 149 F.3d 589 at 594. However, in cases so holding the complained of standardized conduct is not legal conduct but rather illegal conduct. In this case, plaintiffs have identified no factual or legal issues common to the class which are different from those already approved by the Supreme Court. Defendant asserts that there are factual differences between the individual shackling in question which preclude a commonality finding and that the identified similar facts are no more intrusive.
7

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 8 of 14 PageID #:291
d) Typicality The typicality requirement focuses on “whether the named representatives‟ claims have the same essential characteristics as the claims of the class at large.” De La Fuente v. StokelyVan Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). The representatives‟ claims are “typical if [they] arise from the same event or practice or course of conduct that gives rise to the claims of the other class members and [their] claims are based on the same legal theory.” De La Fuente, 713 F. 2d at 232. Factual distinctions between the representative parties‟ claims and the class members‟ claims do not destroy typicality so long as the claims share the same legal theory. Id. First, Plaintiffs claim to draw class members from two sources, those in the MOMs program and those originating from Division 3. (Morales supra.). However, considering the separate origins of the proposed plaintiffs, the one source cannot be typical of the other. Surprisingly, Plaintiffs would like for the court to consider the factual story of female inmates from Division 3 (the jail) sufficiently similar to women from the MOMs program (a drug rehabilitation program). MOMs participants are in the rehabilitation and pregnancy program by election. They are screened, approved and placed by a process which considers, among other things, past criminal behavior and violent tendencies. Pregnant inmates remaining in Division 3 are there because they chose not to participate in MOMs or were ineligible do to their criminal record. MOMs is a privileged living condition program provided by the Sheriff to help ease the transition of inmates into motherhood. Division 3 is, quite simply, jail. The experience of these two groups, no matter the claim, cannot be typical of each other. Second, Plaintiffs have done nothing to support their claim of typicality except to point again to their guesses that there are numerous pregnant inmates who went into labor at Stroger Hospital and were shackled during that labor. Again, Defendant argues that named plaintiffs‟
8

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 9 of 14 PageID #:292
claims vary as to the manner in which shackling was conducted and nothing in the record supports a finding that these five class representatives are typical of unknown putative class members.
e) Adequacy Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To satisfy this requirement, the interests of the representative parties must coincide with those of the rest of the class, and class counsel must be prepared and able to prosecute the action effectively. See Retired Police Ass'n, 7 F.3d at 598; Levie v. Sears, Roebuck & Co., 496 F. Supp. 2d 944, 950 (N.D. Ill. July 17, 2007). First Plaintiffs have failed to provide affidavits sufficient to establish numerosity. Secondly, Plaintiffs have failed to prove typicality of those plaintiffs already named. Therefore, this court lacks any reasonable notion as to what the situation of additional members of the resulting class will resemble. This Court, therefore, has no way to determine if Plaintiffs can fairly and adequately represent the interest of the remaining class. Defendant Tom Dart challenges the adequacy of the named plaintiffs and contends those plaintiffs' interests are at odds with those of other putative class members if for no other reason than the fact that the interests of the remaining class members cannot be indentified to any reasonable degree.
f) Rule 23(b)(3): Predominance and Superiority Even if Plaintiffs could establish all aspects of Rule 23(a)(1)-(4), Plaintiffs‟ class still fails because Plaintiffs cannot complete the second prong of class certification: establishing that Plaintiffs‟ claim falls under the class type indentified under Rule 23(b)(3). Rule 23(b)(3) requires the Court to find “that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that the class action is
9

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 10 of 14 PageID #:293
superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3)(emphasis added). Generally, when a class challenges a uniform policy or practice, the validity of the policy or practice tends to be the predominant issue in the ensuing litigation. See General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n.15, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) (“Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees.”); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (holding that certification was appropriate when plaintiffs alleged that defendant had “an ongoing scheme to defraud and deceive prospective students”). The motion in this case alleges the manner in which Sheriff‟s Deputies complied with General Order 32 was a violation of Illinois Statute § 730 ILCS 125/17.5 regarding the shackling of pregnant inmates in labor and therefore was an Eighth Amendment constitutional violation regarding cruel or unusual punishment.
As mentioned above state statutes are presumed constitutional. Lockport 430 U.S. at 272. The Sheriff is reasonable in relying upon the constitutionality of a statute. General Motors Corp. 678 P.2d at 237. Therefore, the Illinois Statute § 730 ILCS 125/17.5 is presumed constitutional, and Sheriff Deputies acted appropriately in relying upon that statute and the manner in which it was enforced. However, the analysis of the application of a statute to a situation is a case-bycase analysis. Heller 509 U.S. at 320 (quoting Lehnhausen, 410 U.S. at 364). Such case-by-case analyses are highly fact specific to the events of that case and are therefore highly individualized. The four cases at issue here (Zabrowski, Bryant, Embrey and Morales) therefore, are inappropriate for class certification because highly individualized factual analyses run in stark contrast to class certification. Plaintiffs are unable to meet their burden to show a predominating question of fact or law to establish the class considering the proper inquiry into each allegation is
10

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 11 of 14 PageID #:294
an individualized case-by-case analysis. In addition to failing to establish questions of law or fact common to the members of the
class which predominate over individual factual analysis; plaintiffs also fail to show superiority. Plaintiffs must show that the class action method is superior to other available methods for the fair and efficient adjudication of the issues. Plaintiffs have merely guessed that the class size is likely more than 100 persons. There is simply no justifiable reason that a class action is a superior venue to adjudicate the claims of five individuals. These plaintiffs have already filed their individual suits, wherein they can receive a proper and individualized assessment of the constitutional violation they allege.
Given that the Court is allowed to look beyond the complaint when determining class certification, it is relevant to consider Plaintiffs‟ counsel history. Bringing these class actions could simply be part of a Morrissey-Flaxman business plan motivated solely by fees and not the vindication of fundamental rights. The difficulty of certifying a class here is that a $1,000.00$10,000.00 case (taking into consideration that Plaintiffs have suffered no physical injury and have to date incurred no expense for mental injury) quickly becomes a $10,000,000.00 $100,000,000.00 case. This is precisely why the Seventh Circuit permits review of certification decisions. Such a claim puts a bet-your-company decision to the Cook County Board and may induce a substantial settlement even if the Plaintiffs‟ position is weak. The pressure that class certification places on the defendant, and the ensuing settlement, prevents resolution of the underlying issues. See Szabo, 249 F.3d at 675.
The motion is silent on the “fair and efficient” adjudication prongs. There is no showing of any “mad rush to the courthouse” to file shackling cases and it‟s because there is no real injury from such restraint. It is true that none of the currently named plaintiffs suffered any physical or
11

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 12 of 14 PageID #:295
actual damages. In terms of efficiency, plaintiffs argue that one case is better than hundreds, but those hundreds are not being brought. In terms of fairness, the Szabo case points out how unfair it is to a defendant to end up settling an otherwise non-meritorious case because of the risk of an even larger judgment. Therefore, Defendants state that allowing Plaintiffs‟ class is neither fair nor efficient.
g) Class Definition The purported class as defined by Plaintiffs states, “All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.” This definition is unworkable. First, the class definition is inappropriate because the definition seeks to include hypothetical and future plaintiffs when it states “have been or who will be shackled.” In order to have a claim, a plaintiff must first have been in involved in a transaction or occurrence and then suffered an injury from that transaction or occurrence. However, in the class definition, Plaintiffs seek to include unknown and hypothetical plaintiff who have yet to suffer any incident, much less the injury. If Plaintiffs were concerned that the events occurring to them would continue to occur in the future to others, then such a claim is properly brought as an injunction. Plaintiffs‟ definition leaves the inference that Plaintiff expects the Sheriff‟s behavior to continue unaltered, and rather than enjoin that behavior, Plaintiffs seek to find new parties to join Plaintiff‟s lawsuit. Regardless of the intent, it is improper to seek to join future tort victims as such a status under the law does not exist. Secondly, Plaintiffs‟ class definition is inaccurate because a class is not identifiable if an extensive search of individual records is necessary to identify that class. If individual inquiry needs to be made to identify a claim of the proposed class, the definition is deficient. Lau v.
12

Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 13 of 14 PageID #:296
Arrow Fin. Servs., LLC, 245 F.R.D. 620, 624 (N.D. Ill. September 28, 2007). Such inquiry needs to be made on each member of the purported class as defined by Plaintiffs and is extremely burdensome in terms of time and dollars spent pulling files, finding information in the files, and making copies of the information or recording the information elsewhere. The Jail‟s CIMIS system cannot and does not determine who was pregnant. Even if the CIMIS did determine such things, that information is restricted by HIPAA.
The Sherriff‟s department has already spent significant man hours and expense locating un-centralized records for documents for the current five named plaintiffs and for documents which would reveal the names of potential class members. Class Counsel may offer sworn declarations from putative class members but has failed to do so. Therefore, class certification is neither fair nor efficient in this case.
Conclusion WHEREFORE, the MOTION FOR CLASS CERTIFICATION should be denied for failure to meet any one the requirements of Rule 23(b)(3) as numerosity, typicality, commonality and adequacy of representation are lacking. Further, no identifiable issues of law or fact exist as plaintiffs have only enunciated one fact issue and that issue must be analyzed on a case-by-case basis. Finally, class certification is neither the superior, nor fair method of evaluation since no issues of fact predominate over individual questions, thus requiring case by case analysis. For these reasons and all others listed above, the Plaintiffs‟ Motion for Class Certification should be denied.
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Case: 1:08-cv-06946 Document #: 44 Filed: 08/31/09 Page 14 of 14 PageID #:297 Respectfully submitted, ANITA ALVAREZ State's Attorney of Cook County
By: /s/ Pat Smith Pat Smith Deputy Supervisor of Federal Litigation Cook County State‟s Attorney Richard J. Daley Center 50 W. Washington Street, Room 500 Chicago, IL 60602 (312) 603-2388
14

 
 Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 1 of 175 PageID #:300

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

Catherine Zaborowski and

)

Simone Jackson, individually and on )

behalf of a class,

)

)

Plaintiffs,

)

-vs-

)

)

Sheriff of Cook County and Cook

)

County, Illinois,

)

)

Defendants.

)

No. 08 CV 6946 (Judge St. Eve)

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Plaintiffs challenge the Sheriff’s ―shackling policy‖ which requires that

pregnant women in his custody be shackled during labor and during recovery

following childbirth. Plaintiffs contend that this ―shackling policy‖ is uncons-

titutional. (Amended Complaint, ¶17.) Plaintiffs also contend, in a supple-

mental state law claim, that the Sheriff’s policy violates Illinois law.

(Amended Complaint, ¶18.)

Now before the Court is plaintiffs’ motion for class certification. Defen-

dants oppose class certification, raising a variety of meritless arguments.

Plaintiffs respond to defendants’ arguments below and demonstrate that this

case should be allowed to proceed as a class action under Rule 23(b)(3) for

All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 2 of 175 PageID #:301

I. Shackling Pregnant Woman during Labor Causes Harm

Defendants claim that ―none of the currently named plaintiffs suffered

any physical or actual damages‖ as a result of the shackling policy.

(Def.Mem. 11-12.) This is absurd: shackling a pregnant woman during labor

causes harm.

The American College of Obstetricians and Gynecologists has con-

cluded that ―[t]he practice of shackling an incarcerated woman in labor may

not only compromise her health care but is demeaning and unnecessary. . . .

Women [who have been shackled during labor] describe the inability to move

to allay the pains of labor, the bruising caused by chain belts across the

abdomen, and the deeply felt loss of dignity.‖ (Exhibit 1, infra, Letter, Ralph

Hale, MD to The Rebecca Project for Human Rights, June 12, 2007, available

at

http://www.acog.org/departments/underserved/20070612SaarLTR.pdf,

visited September 14, 2009.)

Named plaintiff Simone Jackson could not walk to quicken her labor

because defendants’ shackling policy required that she be shackled to her

hospital bed. (Exhibit 2, infra, Jackson Dep. 42:17-21.) Defendants’ shackling

policy thus lengthened the amount of time Jackson spent in labor and

thereby increased the amount of her pain. This increase in the amount of

pain caused ―actual damages‖ because the unnecessary infliction of pain is

actionable under the Due Process Clause of the Fourteenth Amendment

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Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 3 of 175 PageID #:302
without proof of an ―objective‖ injury. Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir. 2007).
II. The Class Definition Is Not “Unworkable”
Defendants assert that the proposed class definition is ―unworkable‖ because it includes woman ―who will be shackled‖ during labor. (Def.Mem. 12.) Defendants do not contend that they have abandoned the Sheriff’s shackling policy. Nor do defendants deny that they intend to continue to require the shackling of every woman who is transported from the jail to a hospital for childbirth. Thus, the number of woman aggrieved by the shackling policy will continue to grow until the Sheriff abandons this policy. If, as plaintiffs request, the Court allows the case to proceed as a class action, every woman who has been subjected to the shackling policy should be bound by the final judgment.
Defendants are in error in asserting that plaintiffs could seek an injunction to prohibit future use of the shackling policy. (Def.Mem. 12.) The law in this Circuit does not permit plaintiffs to obtain injunctive relief. Arreola v. Godinez, 546 F.3d 788, 799 (7th Cir. 2008) and Robinson v. City of Chicago, 868 F.2d 959, 965-68 (7th Cir. 1989) foreclose any attempt by plaintiff to secure injunctive relief, either individually or for a Rule 23(b)(2) class.
Defendants are also mistaken in claiming that it is impossible to identify women aggrieved by the shackling policy. (Def.Mem. 12.) Defendants have to date been able to locate ―documents which would reveal the names of
-3-

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 4 of 175 PageID #:303
potential class members.‖ (Def.Mem. 13.) These documents – which do not fully satisfy plaintiffs’ outstanding discovery requests – identify 49 women (in addition to the five women who are parties to pending lawsuits) who gave birth while in the custody of the Sheriff. The first and last names of these women are set out in Exhibit 3. (The last names are redacted in the public filing of this memorandum.)
III. The Constitutionality of the Shackling Policy Should Be Decided on a Class Basis
Defendants seek to argue that the constitutionality of the shackling policy must be decided on a case by case basis. (Def.Mem. 5-6.) This argument is without merit because the Sheriff requires correctional officers to apply the shackling policy to all women giving birth who are in the custody of the Sheriff
Plaintiffs allege that defendant Sheriff requires that all pregnant women in his custody be shackled during labor and during recovery following labor. (Amended Complaint, ¶17.) Plaintiffs supported their motion for class certification with the Rule 30(b)(6) deposition of Superintendent Holmes showing that this policy was in effect through at least though August of 2008. (Motion for Class Certification at 2, 4.) Sheriff Dart stated that the policy was still being applied on June 25, 2009, when he publicly acknowledged and defended the policy, explaining that ―[a]nytime a detainee is taken outside the jail for medical treatment, he or she becomes an immediate escape risk.‖ (Exhibit 4, infra.) Plaintiffs confirmed that defendants continue to apply the
-4-

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 5 of 175 PageID #:304
shackling in the Rule 30(b)(6) deposition of deposition of Superintendent
Hickerson (taken on July 9, 2009, after plaintiffs filed their class motion).
Superintendent Hickerson testified that the Sheriff has not made any
changes in his shackling policy after August of 2008. (Exhibit 5, Hickerson
Deposition 33:5-8.) The Sheriff’s policy continues to be that when a pregnant
woman comes to a hospital for childbirth, ―we follow the procedures that we
have a Department of Corrections inmate.‖ (Exhibit 5, Hickerson Deposition
41:17-19). As Hickerson explained (Exhibit 5, Hickerson Deposition 43:11-
45:7):
Q: The woman from Division 3 that is pregnant and was brought to the hospital for purposes of childbirth would be shackled in a room, correct?
Hickerson: Correct.
Q: And her leg – one leg would be shackled to the bed, correct? A: Yes, sir.
Q: And a hand would be shackled to the bed? A: Cuffed to the bed.
Q: Cuffed to the bed? A: Yes, sir.
Q: The guard that’s sitting in the room, [44] the armed guard that’s sitting in the room under the practice and policy of the Sheriff would be required to shackle the female to her bed, correct?
A: Yes.
Q: The female who was pregnant and at the hospital from Division 3 for purposes of giving birth would remain shackled pursuant to the practice of the Sheriff up until the point there was a direction from a doctor, correct?
A. Yes.
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Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 6 of 175 PageID #:305
*** Q: For a woman that's in Division 3 that's hospitalized, the
guard upon notice or an order -- receiving an order from a doctor would have to contact his or her supervisor in regards to the doctor's order to remove the shackles, correct? A: [45] Yes. Q: Only after the guard received approval from his or her supervisor would the guard then remove the shackles from the woman in Division 3 that is hospitalized for purposes of delivering a child? A: Unless it was an emergency.
Plaintiffs expect to prove that the Sheriff’s shackling policy is contrary to May v. Sheahan, 226 F.3d 876 (7th Cir. 2000). There, the Seventh Circuit held that ―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.‖ Id. at 884. Plaintiffs will support their case with evidence that the Sheriff’s policy of shackling a woman while she is in labor, sometimes removing the restraints for the actual delivery and then replacing the shackles immediately after childbirth, is not rationally related to any legitimate non-punitive government purpose and is plainly excessive when an armed correctional officer is bedside during labor and delivery.1
1 Defendants are mistaken in stating that this case is about ―the constitutionality of the application of a statute to a situation.‖ (Def.Mem. 5.) Plaintiffs are not challenging ―the constitutionality of the application of that Illinois statute [730 ILCS 125/17.5] to a particular set of events.‖ (Def.Mem. 2.) Plaintiffs’ challenge is to the Sheriff’s shackling policy, and not to any statute.
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The Rule 30(b)(6) deposition of Superintendent Holmes makes plain that the shackling policy is applied to all hospitalized detainees (Exhibit 2 to Class Motion at 51:3-7); whether a baby is born through a vaginal birth or through cesarean delivery (Def.Mem. 5), is irrelevant. Plaintiffs’ challenge to the shackling policy does not turn on whether the birthing mother is shackled hand and foot throughout delivery, or ―merely‖ handcuffed during delivery and then ―shackled only before and after delivery.‖ Id. Neither the ―particulars of when and how each plaintiff was shackled or handcuffed nor the particulars of the whole labor experience‖ (Def.Mem. 6), has any bearing on plaintiffs’ claim that, under May v. Sheahan, supra, defendants’ policy that all women be shackled during labor and immediately after delivery is unconstitutional.
The Seventh Circuit rejected a defendant’s similar attempt to change the focus of a class claim in Murray v. GMAC Mortgage Corp., 434 F.3d 948 (7th Cir. 2006), a consumer credit class action. There, the named plaintiff limited the class claim to statutory damages, declining ―to make personspecific arguments‖ that would have supported compensatory damages. Id. at 953. Defendant argued that individual determinations were nonetheless required; the district court agreed and denied class certification. Id. at 956. The Court of Appeals reversed, concluding that the legality of defendant’s conduct could be resolved from ―the four corners of the offer.‖ Id. In this case,
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the legality of defendants’ shackling policy can be resolved from the policy itself, without regard to any ―woman-specific argument.‖
Murray was applied by the district court in Jackson v. Sheriff, No. 6 CV 493, a case challenging the Sheriff’s now abandoned urethral swab policy. There, the Sheriff sought to argue that class certification was improper because the legality of the procedure turned on whether each prisoner had consented to the procedure. Jackson, supra, Mem.Op., December 14, 2006, at 8 (attached as Exhibit 6). The district court rejected this argument, accepting plaintiffs’ framing of the issue: that ―the totality of circumstances at the receiving unit makes it impossible for anyone to give a valid consent to the insertion of the urethral swab.‖ (Exhibit 6 at 8.) The district judge in Jackson thus concluded that ―[t]his framing of the issue effectively shifts the debate towards questions that are resolvable without delving into an individualized analysis of minor factual discrepancies.‖ Id. Plaintiffs in this case have similarly framed the issue to focus on the legality of the policy, irrespective of ―minor factual discrepancies.‖
Plaintiffs’ challenge to the Sheriff’s shackling policy in this case has nothing to do with whether a baby was born through a vaginal birth or through cesarean delivery. (Def.Mem. 5.) Nor does plaintiffs’ challenge to the shackling policy turn on the type of restraints used. Id.
Plaintiffs do not bring this case to transform a ten-thousand dollar claim into a one hundred million dollar claim. (Def.Mem. 11.) Plaintiffs have
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expressly requested, pursuant to Rule 23(C)(4) of the Federal Rules of Civil Procedure, that the case be maintained as a class action solely to adjudicate the legality of the Sheriff’s shackling policy, and that all questions of damages for unnamed members of the class be reserved to individual damage actions. As the Seventh Circuit wrote in Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003), ―it makes good sense‖ to resolve the legality of the shackling policy in ―one fell swoop while leaving the remaining, claimantspecific issues to individual follow-on proceedings.‖ Id. at 911.
Plaintiffs’ challenge to the Sheriff’s shackling policy is quite different from the claim of excessive detention before the Seventh Circuit in Harper v. Sheriff, No. 08-3413 (September 8, 2009). There, the Court of Appeals disapproved a district court’s order allowing a case to proceed as a class action because the Seventh Circuit concluded that whether a person had been subjected to an excessive length of detention could only be determined in an individual basis because what is excessive would ―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.‖ Harper, slip op. 7. There are no individual factors in defen-
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dants’ shackling policy, which requires shackling of all women who are taken from the Jail to a hospital for childbirth.
Plaintiffs demonstrate below that the Court should overrule defendants’ remaining objections to class certification.
IV. Numerosity
After plaintiffs filed their opening memorandum, defendants located ―documents which would reveal the names of potential class members.‖ (Def.Mem. 13.) Although defendants have yet to produce all of the documents requested by plaintiffs, the documents produced to date identify 49 women who have given birth while in the custody of the Sheriff. These women (with surnames redacted in the public filing), are identified in Exhibit 3, infra
Although plaintiffs expect the actual class size to be greater than the 49 persons identified to date, a class of 49 members satisfies the ―rule of thumb‖ for numerosity which this Court endorsed in Cotton v. Asset Acceptance, LLC, No. 07-C-5005 (N.D.Ill. June 26, 2008, Exhibit 3 to Class Motion). The Court should reject defendants’ challenge to numerosity.
V. Commonality
Defendants advance the remarkable claim that ―plaintiffs have identified no factual or legal issues common to the class.‖ (Def.Mem. 7.) This contention is without merit: plaintiffs identified the common questions in their motion for class certification (at 6-7):
The common question in this case is whether the use of bodily restraints on a pregnant woman during labor, delivery, or recov-
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ery following delivery is ―rationally related to a legitimate nonpunitive government purpose,‖ as required by May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000). This question is ―common to all potential class members,‖ Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008), and satisfies the commonality requirement of Rule 23(a). This case presents an overriding common question about the constitutonality of the use of bodily restraints on a pregnant woman during labor, delivery and recovery following delivery.
VI. Typicality
Defendants argue that the claims of the two named plaintiffs are not typical of those of the class because ―Plaintiffs claim to draw class members from two sources, those in the MOMs program and those originating from Division 3.‖ (Def.Mem. 8.) Defendants do not, however, present any evidence to support their claim that childbirth is different for a woman in the Sheriff’s custody who is in the ―MOM’s program‖ than for a woman in the Sheriff’s custody who is housed in ―Division 3.‖
Defendants assert that the ―MOM’s program‖ is a drug rehabilitation program, for which pregnant female detainees are ―screened, approved and placed.‖ (Def.Mem. 8.) Defendants claim that those pregnant detainees who are not in the ―MOM’s program‖ are held in ―Division 3‖ because ―they chose not to participate in MOM’s or were ineligible do[sic] to their criminal record.‖ Id. Defendants do not, however, contend that the Sheriff’s shackling policy is different for women in the ―MOM’s‖ program than for women in
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―Division 3.‖ Accordingly, the Court should reject defendants’ challenge to the typicality requirement.
VII. Adequacy
Defendants assert that there is a conflict between the named plaintiffs and the unnamed members of the putative class because ―the interests of the remaining class members cannot be identified to any reasonable degree.‖ (Def.Mem. 9.) This is an unusual and meritless objection.
Persons who have been injured by application of an unlawful policy have the identical interest in obtaining a remedy for that injury. Defendants are unable to show any conflict between the named plaintiffs and the unnamed members of the putative class. Nor do defendants question the ability of plaintiffs’ attorneys to represent the proposed class. The Court should reject defendants’ objections to the adequacy of the class representations tand their attorneys.
VIII. Rule 23(b)(3)
Defendants agree than ―when a class challenges a uniform policy or practice, the validity of the policy or practice tends to be the predominant issue in the ensuing litigation.‖ (Def.Mem. 10.) Defendants assert in conclusory fashion that the constitutionality of the shackling policy is involves ―highly individualized factual analyses.‖ Id. Nowhere in their memorandum, however, do defendants seek to identify these ―individualized factual analyses.‖ This silence is not surprising: there are no ―individual facts‖ about
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whether the shackling policy requires that pregnant woman in the custody of the Sheriff be shackled during labor and during recovery after childbirth.
Defendants fail to acknowledge the superiority of a class action to resolve the legality of the shackling policy in a single proceeding. Defendants point out that there are now four pending cases challenging the shackling policy.2 (Def.Mem. 2, 5-6.) Absent class certification, a ruling on the merits of the policy in any of the four cases would not be binding on the other three. But when ―a class is certified, its members (unless they opt out of the class), and not just the named plaintiff, are bound by the judgment. Wiesmueller v. Kosobucki, 513 F.3d 784, 786 (7th Cir. 2008).
2 Plaintiff do not, and will not, ―seek to join‖ the plaintiffs in those three individual cases as class members. On the contrary, plaintiffs oppose defendants’ pending motion for reassignment of the three other cases. (Record Item No. 37.)
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IX. Conclusion
For the reasons above stated and those previously advanced, plaintiffs request that the Court order that this case be maintained as a class action for:
All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.
Respectfully submitted,
/s/ Kenneth N. Flaxman Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, Illinois 60604 (312) 427-3200 Thomas G. Morrissey. 10249 S Western Ave Chicago, Illinois 60643 (773) 233-7900 Attorneys for Plaintiff
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Exhibit 1

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June 12, 2007
Malika Saada Saar Executive Director The Rebecca Project for Human Rights 2309 18th Street, NW, 2nd Floor Washington, DC 20009
Dear Ms. Saada Saar:
The American College of Obstetricians and Gynecologists (ACOG) is writing this letter in support of federal legislation to prohibit the practice of shackling incarcerated pregnant women in labor. This practice has already been outlawed in Illinois and in California. ACOG’s District IX testified in support of the legislation in California: “Physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk. Typically these inmates have armed guards on-site, which should be more than adequate to protect personnel helping a pregnant, laboring woman or to prevent her from fleeing.”
The practice of shackling an incarcerated woman in labor may not only compromise her health care but is demeaning and unnecessary. Most women in correctional facilities are incarcerated for non-violent crimes and are accompanied by guards when they are cared for in medical facilities. Testimonials from incarcerated women who went through labor with shackles confirm the emotional distress and the physical pain caused by the restraints. Women describe the inability to move to allay the pains of labor, the bruising caused by chain belts across the abdomen, and the deeply felt loss of dignity.
The safety of hospital personnel is paramount and for this reason, adequate correctional staff must be available to monitor incarcerated women in labor, both during transport to and from the correctional facility and during the hospital stay. However, the safety of personnel has not been compromised in the years since laws preventing shackling have been instituted in California and Illinois. This safety track record demonstrates the feasibility of preserving the dignity and providing compassionate care of incarcerated laboring women.
ACOG is committed to high quality obstetric care for all women. Incarcerated women in labor constitute a particularly vulnerable population. Preventing the practice of shackling these women is an important step toward assuring humanitarian care and social justice. If you need further assistance as the specifics of this legislation are developed, please do not hesitate to contact staff in our Department of Government Relations. Specifically, you can contact either Lucia DiVenere by phone at 202-863-2510 or via email at ldivenere@acog.org or Tara Straw by phone at 202-863-2512 or via email at tstraw@acog.org.
Sincerely,
Ralph Hale, MD Executive Vice President
cc: Janet Chapin, RN, MPH, Lucia DiVenere, Lisa Goldstein, MS, Tara Straw, Tara Linh Leaman, JD

Plaintiffs' Exhibit 1

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Exhibit 2

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 18 of 175 PageID #:317

1

1

IN THE UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

3

CATHERINE ZABOROWSKI and )

4

SIMONE JACKSON,

)

Individually and on

)

5

behalf of a Class,

)

)

6

Plaintiffs, )

)

7

-vs-

) No. 08 CV 6946

)

8

SHERIFF OF COOK COUNTY

)

and COOK COUNTY,

)

9

ILLINOIS,

)

)

10

Defendants. )

11

12

The deposition of SIMONE JACKSON

13

called by the Defendants for examination, taken

14

pursuant to the Federal Rules of Civil Procedure

15

of the United States District Courts pertaining

16

to the taking of depositions before MAUREEN A.

17

WOODMAN, a notary public within and for the

18

County of Cook and State of Illinois, at 500

19

Daley Center, Chicago, Illinois, on the 10th day

20

of March, 2009, at the hour of 9:30 o'clock a.m.

21

22

23

24

Plaintiffs' Exhibit 2

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Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 19 of 175 PageID #:318

2

1

PRESENT:

2

THOMAS G. MORRISSEY, LTD.

BY: MR. THOMAS G. MORRISSEY

3

10249 South Western Avenue

Chicago, Illinois 60643,

4

on behalf of the Plaintiffs;

5

ASSISTANT STATE'S ATTORNEY

6

BY: MR. PATRICK SMITH

500 Daley Center

7

Chicago, Illinois 60602,

8

on behalf of the Defendants.

9

ALSO PRESENT:

10

Ms. Lindsey Shapiro

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Plaintiffs' Exhibit 2

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3

1

I N D E X

2

WITNESS

PAGE

3

SIMONE JACKSON

4

Examination by Smith .............. 4-76

5

6 - - - - - - - - - - - - - - - - -
7

8

9

E X H I B I T S

10

DEPOSITION EXHIBIT

PAGE

11

1 ................................... 4

2 ................................... 71

12

13

14

15

16

17

18

19

20

21

22

23

24

Plaintiffs' Exhibit 2

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4

1

MR. SMITH: Mark this as Exhibit No. 1.

2

(WHEREUPON, said document

3

was marked as Jackson

4

Exhibit No. 1 for

5

Identification.)

6

(Witness was duly sworn.)

7

SIMONE JACKSON,

8

called as a witness herein, after having been

9

first duly sworn, was examined and testified as

10

follows:

11

EXAMINATION

12

BY MR. SMITH:

13

Q. Let the record reflect this is the

14

deposition of Simone Jackson taken by agreement.

15

Please identify yourself, spell

16

your complete name for the benefit of the court

17

reporter.

18

A. My name is Simone Laverne Jackson.

19

S-I-M-O-N-E. L-A-V-E-R-N. J-A-C-K-S-O-N.

20

MR. SMITH: This deposition is taken in the

21

lawsuit that's been filed by Ms. Jackson and Ms.

22

Zaborowski versus Sheriff of Cook County under

23

case number 086946.

24

Mr. Morrissey, please identify yourself

Plaintiffs' Exhibit 2

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5

1

for the record.

2

MR. MORISSEY: My name is Thomas Morrissey.

3

I represent the plaintiffs.

4

MR. SMITH: Thank you.

5

BY MR. SMITH:

6

Q. Ms. Jackson, do you go by any other

7

names?

8

A. I have. Sandra Greer.

9

Q. And any other names?

10

A. No, sir.

11

Q. What is your date of birth?

12

A. My date of birth is December the 1st,

13

14

Q. Have you ever used any other date of

15

births?

16

A. No.

17

Q. What about your Social Security number?

18

A. My Social Security number is

19

329-

20

Q. Have you used any other Social Security

21

numbers other than the one you have given the

22

court reporter?

23

A. No.

24

Q. Do you have a driver's license?

Plaintiffs' Exhibit 2

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6

1

A. I don't drive.

2

Q. You don't drive?

3

A. No.

4

Q. Do you have an Illinois identification

5

card?

6

A. Yes, I do.

7

Q. May I see it, please.

8

(Tendering document.)

9

A. You need my Social Security card, too?

10

Q. No.

11

MR. SMITH: Let the record reflect I have

12

been tendered one Illinois state identification

13

number that reads that ID number 2

14

I'm going to make this as an

15

exhibit, and this exhibit will be identified as

16

Simone Jackson Exhibit 1. I'm going to leave it

17

right here so we'll make copies for you. Make

18

sure it's returned to you.

19

BY MR. SMITH:

20

Q. Where were you born?

21

A. I was born here in Chicago, Illinois.

22

Q. What hospital?

23

A. Michael Reese.

24

Q. And what is your level of education?

Plaintiffs' Exhibit 2

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7

1

A. I received a GED. I have some college.

2

Q. Okay. What kind of college?

3

A. I went to vocational culinary arts

4

program. I had my sanitation license from the

5

State of Illinois.

6

Q. What is that?

7

A. Sanitation license?

8

Q. Yes. I don't know what that means.

9

A. Okay. Food sanitation license, that's

10

what I'm trying to say. Excuse me.

11

Q. Regarding food, sanitary food?

12

A. Yes.

13

Q. And when was that?

14

A. I received that in 2002. And I received

15

my GED in 1990.

16

Q. 1990?

17

A. Uh-huh.

18

Q. What neighborhood did you grow up in?

19

A. Bronzeville.

20

Q. Can you state your history of

21

employment, please, generally?

22

A. Generally it's food service, temporary

23

jobs.

24

Q. Let me cut you off to make it easier.

Plaintiffs' Exhibit 2

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8

1

What was the first job you held?

2

A. The first job I held was through the

3

Mayor's Office Summer Program.

4

Q. And that was what year?

5

A. Like '82, '83.

6

Q. Okay. And after that where did you go?

7

A. I had worked at the Congress Hotel. I

8

have worked at just various places. I haven't

9

had a lot of employment through the years,

10

through my years.

11

Q. You have?

12

A. I haven't. I have not.

13

Q. How about this, how many different jobs

14

have you held from maybe age 18 until present?

15

A. Maybe six.

16

Q. And what was the longest job that you

17

held?

18

A. The longest job I held was at the Navy

19

base at Great Lakes.

20

Q. And how long was that for?

21

A. Six months.

22

Q. Six months?

23

A. Uh-huh.

24

Q. Why did you leave that job?

Plaintiffs' Exhibit 2

Page 8

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 26 of 175 PageID #:325

9

1

A. Mental reasons.

2

Q. Are you married?

3

A. No, I'm not.

4

Q. Do you have any children?

5

A. Yes, I have six.

6

Q. Six of them. Okay. Let's start off

7

with the oldest. What's the oldest child's name?

8

A. Sebon, S-E-B-O-N, Jackson. He is 26.

9

Q. Sorry. Who is his father?

10

A. His father is Larry Redmond. Allison

11

Porter, she is 21. Her father is Brian Porter.

12

Marvellis Rubin. His father is Marvellis Rubin.

13

Q. How old is he?

14

A. The father?

15

Q. The third child.

16

A. The third child is 19.

17

Q. Three more to go.

18

A. I know.

19

Q. Helping you out, that's all.

20

A.

, she's 16, and her father's

21

Marveliss Rubin.

22

Q. Where does she reside at?

23

A. She resides at

East 73rd Street.

24

Q. With who?

Plaintiffs' Exhibit 2

Page 9

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 27 of 175 PageID #:326

10

1

A. With my mom and sister. Where am I at?

2

. She is age nine. Her father is

3

John

And

. And she is

4

ten months. And she resides -- you want to know

5

where? She resides with me at

West Monroe.

6

Also Whisper resides at the same address

7

West Monroe.

8

Q. And Whisper was the child that was born

9

in Stroger, correct?

10

A. No. Trinity.

11

Q. Okay. What was the date of her birth?

12

A. May the 3rd,

13

Q. Where do you currently reside at again?

14

A.

West Monroe. Apartment B.

15

Chicago, Illinois.

16

Q. Okay. And who lives with you?

17

A. My mom, my sister.

18

Q. What's your mom's name?

19

A. Ruth Pines. P-I-N-E-S.

20

Q. And who else? Your two children?

21

A. Yes, Whisper and Trinity. And my sister

22

Memory Pines. P-I-N-E-S.

23

Q. Memory?

24

A. Yes. Her husband, Vernon. And her two

Plaintiffs' Exhibit 2

Page 10

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11

1

children, Brilliance and Siasabon Pines.

2

Q. Anybody else?

3

A. That's it.

4

Q. And Trinity, who's Trinity's father?

5

A. Trinity's father is Lusher White.

6

Q. Lusher with an L?

7

A. With an L.

8

Q. And where does he stay?

9

A. He stay in Evanston, 1810 Darrell.

10

Q. Does he pay child's support?

11

A. Yes.

12

Q. He does. And is there a pending child

13

support case?

14

A. Yes, there is.

15

Q. Do you have any information regarding

16

that?

17

A. No, not right now.

18

Q. If I ask for it, will you give it to

19

your attorney?

20

A. Yes, I will.

21

Q. How long have you resided at that Monroe

22

residence?

23

A. Last 18 months. Prior to me coming home

24

from the Dwight, since January the 27th.

Plaintiffs' Exhibit 2

Page 11

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12

1

Q. And prior to going into Cook County the

2

last time, where did you live at?

3

A.

East 73rd Street.

4

Q. Regarding this complaint that you filed,

5

when did you -- what date did you enter the Cook

6

County jail?

7

A. November the 1st, 2007.

8

Q. And were you arrested by the CPD?

9

A. Yes, sir.

10

Q. And what was the charge?

11

A. Burglary.

12

Q. Burglary?

13

A. Yes, sir.

14

Q. What was your bond set at, do you

15

remember?

16

A. I think 20,000.

17

Q. After receiving a classification, where

18

were you assigned to, what division, three or

19

four?

20

A. Division three.

21

Q. Division three?

22

A. Uh-huh.

23

Q. And you were pregnant?

24

A. Yes, I was.

Plaintiffs' Exhibit 2

Page 12

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13

1

Q. Did you know how long you were pregnant,

2

how many months --

3

A. I was 12 weeks from the time --

4

Q. Let me finish the question.

5

A. Excuse me.

6

Q. How many months?

7

A. 12 weeks.

8

Q. 12 weeks?

9

A. Yes.

10

Q. And you were in division three, right?

11

A. Three.

12

Q. And you were then transferred, for lack

13

of a better word, to the MOMS program, correct?

14

A. Yes. I was offered that.

15

Q. How long did you stay in division three

16

before you went to the MOMS program?

17

A. About three weeks. I left on the 21st

18

of November.

19

Q. Let me ask you this, prior to giving

20

your deposition, did you have an opportunity to

21

review any material, any documents or anything?

22

A. Like what?

23

Q. Your complaint, did you read anything,

24

anything relating to this case?

Plaintiffs' Exhibit 2

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14

1

A. No, not really, no. I already know the

2

case. I know my complaint.

3

Q. Okay. So you have a good command of the

4

facts?

5

A. So far, yeah.

6

Q. Okay.

7

A. To my knowledge.

8

Q. Have you -- are you on any medication

9

right now?

10

A. No, I'm not.

11

Q. And have you had anything to drink --

12

don't me to be offensive or anything.

13

A. None taken.

14

Q. Any alcoholic drink in the last 12

15

hours?

16

A. No, I'm not under the influence of any

17

type of alcohol.

18

Q. Nothing going to impair your ability to

19

testify?

20

A. Exactly.

21

Q. Okay. Now, tell us about the MOMS

22

program. Is there a form that you have to fill

23

out or do you have to qualify to get into the

24

MOMS program, other than being pregnant?

Plaintiffs' Exhibit 2

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15

1

A. Yes.

2

Q. What is that? Tell us, please.

3

A. To qualify you cannot have any

4

significant bond forfeitures, you can't have any

5

escapes in your background, any violent crimes

6

like homicide or armed robberies, anything of

7

that nature. Also, of course, you have to be

8

pregnant.

9

Q. I said that.

10

A. I know you did. And your bond have to

11

be a certain amount. You have to have a bond for

12

one.

13

Q. It can't be no bond?

14

A. Right, and it has to be a certain amount

15

of bond. Can't exceed over like 250,000 or

16

something of that nature, so it's a cap to it.

17

Q. Okay. Anything else, any other terms or

18

any --

19

A. You have to have a -- acknowledge that

20

you have an addiction. Addiction of chemicals or

21

gambling.

22

Q. And did you have an addiction?

23

A. Yes, I did.

24

Q. What was your drug of choice?

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16

1

A. My drug of choice was heroin.

2

Q. Heroin?

3

A. Yes.

4

Q. And how long had you been on heroin?

5

A. I have been a user of heroin on and off

6

for the past 20 years.

7

Q. 20 years?

8

A. Yeah.

9

Q. Anything else, any other addictions?

10

A. No.

11

Q. Did you -- was this a physical form that

12

you had to fill out?

13

I have not had the benefit prior to

14

your deposition of getting a copy of like the

15

application form. Is that what it's called? Can

16

you help me out.

17

A. Yeah. Well, the initial interview. I

18

was interviewed for it.

19

Q. Is it like a one-on-one?

20

A. A one-on-one.

21

Q. Do you know whom you interviewed with?

22

A. No, not personally. No, I couldn't say

23

the deputy's name, the sheriff's name.

24

Q. Was it a correctional officer or was it

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17

1

a civilian?

2

A. It was a correctional officer and in

3

uniform. A Cook County Sheriff.

4

Q. Okay. Can I ask you, was it someone

5

that you knew in like division three?

6

A. No.

7

Q. But you don't know the person?

8

A. I don't know the person. Like I

9

never -- I wasn't constantly in contact with the

10

person that interview me.

11

Q. Okay. We already said that. Okay.

12

And after that interview, what's

13

the next step then?

14

A. The next step they called my references,

15

called the references that I gave. I had to give

16

three references of the people who could tell

17

about what -- you know, my addiction, would I

18

benefit from the program, so on and so forth.

19

And they did that.

20

I was told by my mom and my sister

21

and my children's grandmother that they did call

22

them and asked them some questions about me,

23

would I -- you know, would I run, would I benefit

24

from the program.

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18

1

Q. Would I what?

2

A. Would I escape, run, escape from the

3

program. That's what I mean.

4

I also signed -- once I was

5

approved I signed an agreement like I was still

6

incarcerated. I signed an agreement that I was

7

released on sheriff furlough, a furlough, so it

8

was like a bond slip paper with copies, you know.

9

I had a copy and so forth.

10

Q. The documents that relate to the MOMS

11

program, those documents that you signed, did you

12

keep copies of those?

13

A. I haven't got them. I'm sure, yeah.

14

But I also know that they had copies.

15

Q. If you find something of that nature,

16

you will hand it over to your attorney?

17

A. Yes.

18

Q. Okay. And how long did the procedure

19

take, do you remember?

20

A. From the time I was approved and left,

21

the day I left?

22

Q. Yes.

23

A. Oh, I left about eight, I got into

24

Haymarket 3:00 o'clock that afternoon. At the

Plaintiffs' Exhibit 2

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19

1

initial intake it took about maybe --

2

Q. So it happens all in one day?

3

A. It happens all in one day. It takes a

4

whole day.

5

Q. Okay. Were there any provisions

6

regarding restrains or shackling or handcuffing

7

in the application form that you may have signed?

8

A. Not -- no.

9

Q. You don't remember?

10

A. I'm pretty sure it wasn't.

11

Q. Now, how do you get from the compound to

12

the Haymarket?

13

A. Via a police car, a sheriff car.

14

Q. And were you shackled?

15

A. I was handcuffed.

16

Q. How were you handcuffed, front or back?

17

A. Front. Front.

18

Q. So for the record, it was just -- were

19

you standing there handcuffed on both your left

20

and your right wrists?

21

A. Yes, sir.

22

Q. Any other restraints?

23

A. I also received what they call a home

24

monitoring device that was placed on my ankle.

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20

1

Q. And where was that placed on your ankle,

2

at the jail?

3

A. No, at the MOMS program.

4

Q. We're going to get to that. We're

5

almost there.

6

A. No problem.

7

Q. So then you have the handcuffs then.

8

Once you get to Haymarket what's the procedure?

9

What's the intake there? What do you do?

10

A. I go in and talk to the staff of

11

Haymarket and they ask me -- they place me in

12

their database and ask me what's my name, what's

13

my Cook County jail number and my emergency

14

contact. They also at the same time the sheriff

15

is placing me on the monitor and logging me in

16

the system so the bracelet can monitor my

17

whereabouts inside the facility of Haymarket.

18

Q. Okay. And the sheriff does that part of

19

it, the ankle bracelet?

20

A. Yes.

21

Q. And do you remember who you spoke with

22

at Haymarket during that initial interview?

23

A. Her name was Diedra.

24

Q. Diedra?

Plaintiffs' Exhibit 2

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21

1

A. Welch.

2

Q. And how long does that procedure take?

3

A. About 30, 30 minutes.

4

Q. And are the ground rules discussed with

5

you?

6

A. Yeah, ground rules pertaining to

7

Haymarket facility. They're a unit it in itself,

8

no cussing. I signed the paper saying I agree to

9

their rules, Haymarket rules, and also the rules

10

of Cook County department.

11

Q. Okay. And just generally what were some

12

of the ground rules?

13

A. No profanity, take a shower daily, be

14

prepared for all meetings.

15

Q. Meetings?

16

A. Meetings. Also if I had any problems,

17

who my counselor was, if I needed any special

18

care like medications, psychiatric care they

19

would provide that, if it was an emergency as far

20

as my pregnancy they will provide medical care

21

immediately, things of that nature.

22

Q. Now, in division three you were housed

23

in a traditional type cell, correct?

24

A. Yes.

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22

1

Q. At Haymarket how are you housed?

2

A. I'm housed in like a bedroom, you know.

3

Q. Never been there.

4

A. I'm trying to explain.

5

Q. Right.

6

A. Bedroom in your house. It's like a room

7

like.

8

Q. How many ladies in each room?

9

A. It was -- two to a room and sometimes

10

one to a room. The clients that have one to a

11

room, they were there were they children. They

12

either had their baby with them or just had they

13

children or child.

14

Q. I see. Okay. And were there any -- how

15

was security run at Haymarket MOMS?

16

A. 24-hour security.

17

Q. Do you understand my question?

18

A. Yes. 24-hour security. Upon entering

19

the building, there is a security guard, you have

20

to show ID. On the unit that I was in it was a

21

locked unit, so if -- I couldn't get off the

22

elevator -- I mean get on the elevator without a

23

key. And I couldn't leave out like the exit

24

doors without an alarm sounding very loud. So it

Plaintiffs' Exhibit 2

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23

1

was a locked unit.

2

Q. But are you in any restraints while

3

you're in your room or in the -- is there like a

4

day room, something similar to a day room?

5

A. Yes, it is.

6

Q. And at any time are any handcuffs placed

7

on you or leg irons or anything?

8

A. No, sir.

9

Q. No?

10

A. No.

11

Q. And is the door to the room locked at

12

any time?

13

A. No locked doors other than the ones that

14

lead you to the street. Lead you out there.

15

Q. Okay.

16

A. Out of the facility.

17

Q. But your bedroom door, that's open?

18

A. Yeah, it's open. You can close it but

19

you can't lock it.

20

Q. And how long were you there at MOMS?

21

A. I was there from November 21 to

22

September the -- November the 21st, '07, to

23

September the 23rd, '08.

24

Q. November 21st of '07 to September of

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24

1

'08?

2

A. Yes. 11 months.

3

Q. I see. You came back there?

4

A. No, I went from the jail to Haymarket.

5

I had my baby. I stayed there until September

6

the 23rd. Then I went to sheriff furlough from

7

September the 23rd to November --

8

Q. I meant after you had your baby?

9

A. I stayed there.

10

Q. You went back for the MOMS program?

11

A. Yeah.

12

Q. Okay.

13

A. I was just considering that I never

14

left. I just went to the hospital.

15

Q. Okay. When did you go in labor then?

16

You got there on November 21st and

17

when did you start going into labor?

18

A. May the 3rd.

19

Q. So you were there for quite awhile

20

before you even went into labor?

21

A. Exactly.

22

Q. Do you know how many -- how long people

23

would normally stay, inmates, just if you knew?

24

Do you know?

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25

1

A. Well, I have one when I first entered

2

the facility a lady there with her child, she had

3

been there a year.

4

Q. Okay. All right. During that time in

5

the mother's program from November 21 until May

6

5th, did you have any problems with any of the

7

staff that you want to testify to?

8

A. Well, yes. I have disagreements. I had

9

attitude problems.

10

Q. You did?

11

A. Me, me, myself. I had an attitude

12

problem.

13

Q. Were you written up for any type of

14

disciplinary problems where it was written up?

15

A. Yes.

16

Q. You did?

17

A. Yes, yes.

18

Q. And how many times?

19

A. About twice.

20

Q. Twice?

21

A. Yes, sir.

22

Q. And as a result of being written up for

23

disciplinary problems, what came of that? Is

24

there a penalty or punishment?

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26

1

A. Yes, I will receive -- I had to write an

2

essay. I would have to lose my privilege of

3

ordering food out.

4

Q. Carry-outs?

5

A. Carry-outs for a privilege. I have lost

6

that before. Things like that.

7

Q. And did you keep any of these reports or

8

disciplinary tickets I think they're called, do

9

you have any of those with you?

10

A. No. But all my reports and things that

11

as far as my treatment in Haymarket file, as far

12

as that, my treatment.

13

Q. Did you keep any reports or anything

14

from your stay at Cook County Jail or Haymarket,

15

were they all kept at the facility?

16

A. Yeah, I have kept like group things

17

like -- like if you gave a seminar or something,

18

I would keep that, books they would give us.

19

Things pertaining to my getting better.

20

Q. Nothing really relevant to the lawsuit?

21

A. No, nothing relevant to the lawsuit.

22

Q. Now, on May 5th, let me ask this, when

23

is it determined that you're going into labor I

24

guess? I mean when is it decided?

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27

1

A. That I'm actually in labor?

2

Q. Yes.

3

A. The doctor said when I go to the

4

hospital, when the doctor checked me or the

5

nurse, they say that I'm in labor.

6

Q. So there's somebody at the MOMS program?

7

A. Uh-uh. I have to be transferred to the

8

hospital to truly determine that I am in labor.

9

Q. I guess -- this may sound silly. What

10

prompts that? How do you notify the MOMS people

11

to take you? What is required? I mean do they

12

do a check on you, a medical check on you in MOMS

13

to say, well, we better go over this -- you

14

better go over to Stroger? Or is this by your

15

word only?

16

A. Basically, yes, it's by my word of -- I

17

don't want to say maybe. It's by my word and the

18

symptoms that I described to them to say that,

19

okay, we'll make a phone call and call the

20

ambulance.

21

Q. Symptoms that would be commonplace?

22

A. With labor, yes.

23

Q. Okay. And that's what happened in your

24

case?

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28

1

A. Yes.

2

Q. Okay. So then you're taken then to

3

Stroger, correct?

4

A. Well, not just taken to Stroger.

5

They'll call an ambulance. The ambulance, they

6

make the decision on what hospital I go to. It

7

was usually Mount Sinai or Stroger. I just

8

happened to get Stroger.

9

Q. Okay. Tell us then, why don't you tell

10

us in your case back on May 5th what happened

11

that day?

12

A. May 5th?

13

Q. Yes, that's the day --

14

MR. MORISSEY: No, no. She didn't say that.

15

She said May 3rd.

16

MR. SMITH: I'm sorry. I didn't mean to

17

trick you up. I thought you said May 5th.

18

BY MR. SMITH:

19

Q. May 3rd. Okay.

20

A. Yes.

21

Q. On May 3rd, tell me about that date.

22

A. When I went in labor?

23

Q. Yes.

24

A. May the 3rd, the day I went in labor, I

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29

1

had woke up maybe like 3:00 o'clock in the

2

morning, that early morning part, wasn't feeling

3

good, my back was hurting. I went to the staff

4

office, told them I was hurting, that I thought I

5

was in labor.

6

Q. Slow down.

7

A. Okay. I went to the office, told them

8

that my back was hurting very bad and I believe I

9

was in labor. This was my sixth child, so I'm

10

pretty aware about labor. They told me

11

that -- they had to call the sheriff department

12

and call the director, you know, the things and

13

can I hold on. So I let them do that. Took a

14

shower. Got my bag ready.

15

Q. Okay.

16

A. And waited for the ambulance. The

17

ambulance came.

18

Q. What time?

19

A. I'm not sure.

20

Q. Approximately?

21

A. Let's say maybe an hour, 30 minutes at

22

the most.

23

Q. So about 3:30, 4:00?

24

A. Yes. The ambulance came. They asked me

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30

1

some questions about me.

2

Q. Now, were these paramedics?

3

A. Paramedics, EMTs.

4

Q. Were they from County or Chicago?

5

A. I think they private. I'm not sure. I

6

guess they from 911 call.

7

Q. Okay. So you don't know --

8

A. I don't know. I don't know. So they

9

came. I went to Cook County. They let staff

10

know that they were taking me to Cook County.

11

Q. Tell me about the circumstances of the

12

transportation. How was it -- how were you

13

transported in the ambulance?

14

A. On a gurney.

15

Q. Did they have the gurney in the building

16

in MOMS? How did they get you from your bedroom,

17

I guess, to the ambulance?

18

A. They brought the -- they brought they

19

equipment to transport me theirself (sic).

20

Q. What was that? What type of device was

21

that? What kind of equipment?

22

A. Like a chair. A chair.

23

Q. Wheelchair?

24

A. No, it wasn't a wheelchair. It was a --

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31

1

it was made like a chair. So I wouldn't say a

2

wheelchair, because it can break down to a bed.

3

It was they device, so whatever they standard

4

device they use.

5

Q. They put you in that device?

6

A. They put me in that device. Strapped me

7

around so I wouldn't fall. And they got me on

8

the elevator with the Haymarket staff. Her name

9

was Michelle. And we proceeded.

10

Q. Her name was Michelle?

11

A. Her name was Michelle. And we proceeded

12

to the ambulance and then to Stroger Hospital.

13

Q. Other than the straps so you don't fall

14

out, were you put in any type of leg irons or

15

handcuffs or any restraints at all?

16

A. No.

17

Q. No?

18

A. No.

19

Q. So it was just the restraint that was

20

used by the paramedics, right?

21

A. Yes.

22

Q. So then they put you in the back of the

23

ambulance?

24

A. Yes.

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32

1

Q. Who's back in there with you?

2

A. The Haymarket staff Michelle.

3

Q. Is there anyone from the sheriff's

4

office there?

5

A. No.

6

Q. Was there anyone from the sheriff's

7

office involved at all in the transportation from

8

your bedroom to the Stroger Hospital?

9

A. No.

10

Q. Now, you get to Stroger?

11

A. I get to Stroger. I go into the

12

emergency room. And the staff talks to the lady,

13

tell them I'm in labor.

14

Q. Michelle?

15

A. She talks to the lady at the emergency

16

room and tells them I am in labor. The lady

17

approaches me, asks me how many weeks I am, how

18

do I feel. Took me in the back because I had to

19

be checked to see if I was dilated or whatever.

20

To see if they'll keep me.

21

So I was proceeded to the back and

22

they checked me. And they okayed that I was in

23

labor. Proceeded to take me in the labor and

24

delivery floor. I was admitted to the labor and

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33

1

delivery floor. Michelle followed me up.

2

Q. What's Michelle's last name?

3

A. I'm not sure.

4

Q. Can you describe her for me?

5

A. She's an African American female. She's

6

about 240 pounds. She worked nights only. Short

7

hair, very short hair. That's about it.

8

Q. Continue then.

9

A. Okay. At the time I was admitted to

10

labor and delivery, taken to labor and delivery,

11

and Michelle came with me and she stayed there

12

until the sheriff came. She said she couldn't

13

leave or go anywhere like get a pop or anything

14

until the sheriff came.

15

Q. So describe the room that you're put in?

16

A. The room it's a big size room. It has a

17

TV. It has all the monitors and baby stuff, so

18

when you deliver, so it's a really big room.

19

Q. Was there other -- is there a single

20

room?

21

A. Yeah, it's a private room. It's a

22

private room. Has its own bathroom and stuff.

23

Like I said, it got all the baby's

24

stuff, monitors, lights and things like that.

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34

1

Q. Okay. And were you put in any

2

restraints at all, cuffs or --

3

A. Not by Michelle.

4

Q. By Michelle?

5

A. No, not by Michelle.

6

Q. How long -- I'm sorry, were you going to

7

say something?

8

MR. MORISSEY: There is no question pending.

9

And I prefer you ask questions and she will

10

answer.

11

MR. SMITH: That's what I'm doing. I didn't

12

want to cut her off. All right?

13

MR. MORISSEY: There's no question pending.

14

BY MR. SMITH:

15

Q. Let's start over.

16

How long did Michelle stay before

17

the sheriff got there?

18

A. I'd say about maybe three hours, maybe.

19

Q. Three hours?

20

A. Maybe three hours before the sheriff

21

came.

22

Q. Now, was medical personnel coming in and

23

out?

24

A. Yes, yes. And she introduced herself as

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35

1

Santa Maria, my nurse, she introduced, because

2

she was there all through the delivery until she

3

was relieved you know, but I delivered before

4

she -- her shift was over.

5

Q. What was her name?

6

A. Santa Maria.

7

Q. That was her first name?

8

A. That's what she said her name was. And

9

that's what I called her.

10

Q. Was she Hispanic?

11

A. I think she was Filipin, I think. I'm

12

not sure what her -- really what her ethnic

13

were -- was.

14

Q. Who was the correctional officer that

15

came and relieved Michelle?

16

A. Officer Jackson.

17

Q. Is that a male or female?

18

A. Female.

19

Q. Were they all female?

20

A. Yes, all of them was female.

21

Q. And did you know Officer Jackson at all

22

prior to her coming in the room that day?

23

A. No.

24

Q. And what happened when she came in?

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36

1

A. She came in with two, I guess her

2

superiors, they had white shirts. They had the

3

shackles with them in they hands. And they gave

4

them to her. And she -- they left. They talked

5

a minute.

6

Q. The white shirts left?

7

A. Right, the white shirts left. She

8

talked to me, asked me, you know, what I was

9

there for, just general questions, how old was I,

10

was it my first be baby, things like that.

11

Q. Small talk?

12

A. Small talk basically. I'd say about

13

maybe 40 minutes, another officer came, Officer

14

Flemmings.

15

Q. Did Officer Jackson put any restraints

16

on you?

17

A. No.

18

Q. And you said then Officer Flemmings?

19

A. Flemmings.

20

Q. And what happened when Officer Flemmings

21

came?

22

A. Officer Flemmings came to see that I had

23

to be shackled.

24

Q. She said that?

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37

1

A. She said that.

2

Q. She told that to Jackson?

3

A. She told that to Jackson. Jackson said

4

that she had been working with this unit for some

5

time and at one point they didn't shackle the

6

MOMS program.

7

Q. Do you know what she meant when she said

8

this unit?

9

A. What did she meant? That she had been

10

the person that relieved the -- stand on the

11

ladies that had babies from MOMS.

12

Q. So were you then shackled?

13

A. I was then shackled and handcuffed.

14

Shackled at one leg and handcuffed at the other,

15

other arm.

16

Q. So it's a handcuff on your left arm

17

or -- I mean I'm just saying the opposite?

18

A. Yeah, yeah, opposite.

19

Q. Opposite wrist and ankle, right?

20

A. Correct.

21

Q. Would you ever be shackled to the same

22

ankle with the -- did you still have the leg

23

bracelet on?

24

A. Well, she's putting it on. Flemmings

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1

putting it on.

2

Q. Your ankle bracelet?

3

A. You are talking about the home

4

monitoring thing?

5

Q. Yes.

6

A. That never came off. It never came off.

7

Q. I mean would they ever have the leg

8

bracelet with the home monitor on it on the same

9

leg?

10

A. Yeah.

11

Q. They would?

12

A. Uh-huh.

13

Q. And how did that feel after you had the

14

handcuffs on, the shackles on, on the arm and

15

leg?

16

A. How did it feel?

17

Q. Yes. Did you have any complaints or --

18

A. Yeah, because I'm in labor. I want to

19

move. I want to -- yeah.

20

Q. That's why you're here. I want to find

21

out about that.

22

A. No problem. I have no problem telling

23

you.

24

Q. Were they too tight?

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39

1

A. No, but I'm in pain so I want to move.

2

I want to caress myself, so it's like I can't do

3

but so much in the bed. So it felt like being

4

tied down. Okay. And then I know I'm in pain

5

and it's very uncomfortable.

6

Q. Okay. And was your feeling of

7

uncomfortable, was it right away or did it -- I

8

mean did it happen as soon as they put on the

9

cuffs were you uncomfortable?

10

A. Yeah, it was uncomfortable because I'm

11

constantly having to use the bathroom. I have

12

to --

13

Q. Let's stop there.

14

A. Okay.

15

Q. How would you use the bathroom?

16

A. They had to bring a bedpan. And if they

17

don't get there fast enough, I'd use it on

18

myself.

19

Q. Okay. Was a catheter at all put in?

20

A. Eventually.

21

Q. How long were you there before a

22

catheter was put in?

23

A. I'm going to say about maybe three

24

hours. Now, that -- with the catheter, I had to

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40

1

get one of the restraints taken off my leg,

2

because I had to sit my legs a certain way for

3

the catheter to come in. But once they put it in

4

they had put it back on. Because I had to put my

5

feet together like this. To get the catheter.

6

Q. Okay. And did you communicate that to

7

Officer Flemmings that you were uncomfortable

8

with the handcuffs?

9

A. Yes, and Officer Jackson.

10

Q. And what would you say to them?

11

A. That this -- that I wasn't going

12

nowhere. I didn't see why I had to be

13

restrained. I'm in labor. I have to ask for a

14

bedpan. They didn't feel like -- the officers

15

felt like it was the nurse's duty to get me a

16

bedpan. The nurses felt like they didn't have to

17

give me a bedpan because I didn't supposed to be

18

restrained. That's how they communicating with

19

each other.

20

Q. Let's talk about that for a while. Did

21

the nurse that you described --

22

A. Santa Maria.

23

Q. Did she say anything to the correctional

24

officers regarding your restraints?

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41

1

A. Yes.

2

Q. And what did she say?

3

A. She said that that wasn't supposed to

4

happen. That never happened. She never seen

5

that to happen, that the ladies that was

6

incarcerated be restrained.

7

She also made a call to the

8

captain, the captain on duty or whoever the

9

superior was.

10

Q. Santa Maria did?

11

A. Right, for me to get the restraints off.

12

She said she couldn't keep coming back for me to

13

go to the bathroom. She just couldn't.

14

Q. And do you know what captain she called?

15

A. No.

16

Q. Was the call made from your room?

17

A. No.

18

Q. How do you know she called the captain?

19

A. Because Flemmings and her went out and

20

she said that she had a problem -- Flemmings said

21

she was following orders and if she had a problem

22

call her captain and she will go with her. So

23

the verbal part was --

24

Q. Was told to you?

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42

1

A. Was in front of me. Was spoken in front

2

of me. But the results was just told at

3

the -- they came back and she said she couldn't

4

take them off.

5

Q. The captain?

6

A. No, Santa Maria came back and said they

7

wouldn't take them off.

8

Q. The captain said no?

9

A. Right.

10

Q. Right?

11

A. Yes, yes.

12

Q. You made it sound like I was putting

13

words in your mouth.

14

A. No.

15

Q. How about doctors, were any doctors in

16

the room?

17

A. No. But Santa Maria said that she was

18

calling the attending physician about it, the

19

restraints. They wanted me to walk to speed up

20

the labor process. And I couldn't walk because I

21

was restrained.

22

Q. Okay. Any doctors come in?

23

A. They didn't come in to talk to me, no.

24

Q. And how long were you there then before

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43

1

you started having -- the delivery process began?

2

A. The delivery process, I think I had my

3

baby about 9:00 o'clock on the 3rd.

4

Q. So you got there about --

5

A. P.m. But I came early morning on the

6

third, a.m.

7

Q. Let me ask you this. Do you know

8

approximately what time the cuffs were put on

9

you?

10

A. All I know it was during the 11:00 to

11

7:00 shift.

12

MR. MORISSEY: The night shift, right?

13

THE WITNESS: Right, 11:00 p.m. to 7:00 a.m.

14

shift.

15

BY MR. SMITH:

16

Q. Okay.

17

A. I left like 3:00 o'clock that morning,

18

something like that.

19

Q. So sometime before 7:00 a.m.?

20

A. Exactly.

21

Q. That's when Flemmings came in?

22

A. Right.

23

Q. Was Flemmings actually 7:00 to 3:00?

24

A. I'm not sure. She could have been.

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44

1

Q. And then, I'm sorry, I didn't hear the

2

time again when you had your baby?

3

A. About 9:00.

4

Q. A.m.?

5

A. P.m. 9:00 p.m.

6

Q. And what time did your doctor come in,

7

the doctor that delivered the baby?

8

A. They prepped me -- I'm not sure.

9

Because I'm in labor.

10

Q. That's what I'm trying to be very

11

general with it.

12

A. I know I was prepped. I'm not sure of

13

the time. I'm not sure when they actually came

14

in and delivered the baby. I know they did it,

15

so...

16

Q. When did they take the shackles off?

17

A. They didn't.

18

Q. They didn't?

19

A. No.

20

Q. So when you were having the baby, the

21

shackles were still on?

22

A. Yes. I know -- that's my testimony. I

23

know my arm was still shackled for sure, because

24

I'm numb down at the waist. I'm numb from my

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1

waist down.

2

Q. Did you have a --

3

A. Depidural (sic).

4

Q. Epidural?

5

A. Thank you.

6

Q. When did you get the epidural shot?

7

MR. MORISSEY: Objection. She said that she

8

was in labor. She wasn't conscious of the time

9

actual. She can answer. If you know.

10

THE WITNESS: Well, I don't know the exact

11

time, I don't. I don't know the exact time of

12

the actual depidural.

13

BY MR. SMITH:

14

Q. Epidural?

15

A. Epidural. And I know I had it. I know

16

I was prepped. I know I was put on the thing,

17

but I also am aware that my arm was still

18

shackled, you know, my arm was still cuffed.

19

Q. Did the doctor ever say something like

20

take the handcuffs off or did you hear him say

21

anything relating to you being shackled?

22

A. Yeah.

23

Q. What did you hear the doctor say?

24

A. I heard them say that -- I know when

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46

1

they came to put the epidural that was one part.

2

They asked me do I want the epidural, how I would

3

get it, and they talked about the shackles then,

4

because I have to sit a certain way. And they

5

said if I sat in this position -- because they

6

talking amongst the sheriff, if they can

7

unshackle me. If I laid in this position, would

8

I be -- can I still be shackled. If I laid, took

9

it another position, I would have to be

10

unshackled. So they made the decision to keep me

11

shackled while I got the epidural.

12

Q. Did you have to sit up for the epidural?

13

A. Yeah, I sat up for the epidural.

14

Q. So you were still restrained both by

15

ankle and wrist?

16

A. Uh-huh. And leg.

17

Q. Now, did you ever hear -- who was the

18

doctor that delivered the baby?

19

A. I'm not sure.

20

Q. Can you describe him for me, please?

21

A. It was all ladies.

22

Q. Female doctor, too?

23

A. Yes, female doctor, too. And there was

24

three of them, three ladies there.

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47

1

Q. Three doctors?

2

A. I don't know if they was doctors.

3

Q. Three personnel?

4

A. Three.

5

Q. Okay. All right.

6

And describe the doctor, was she

7

black, white, Hispanic?

8

A. No, it was like Indians.

9

Q. The nurses, too?

10

A. The three ladies that delivered the

11

baby, helped her deliver my baby was like

12

Indians.

13

Q. Okay. Do you remember any of their

14

names at all?

15

A. Not in -- just in that -- no. I don't

16

even know the doctor's name that delivered my

17

baby.

18

Q. Did you hear -- listen to my question

19

carefully. Did you hear any of the Indian

20

medical personnel tell the correctional officers

21

to take the restraints off?

22

A. No.

23

Q. Were there any complications? I trust

24

everything went well for your baby. It was

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48

1

delivered without incident?

2

A. Yes.

3

Q. Tell me then what happened next. What

4

happened after the baby was delivered?

5

A. After I delivered the baby, I was --

6

Q. Are you just shackled at that point

7

still just with your ankle?

8

A. I'm with my ankle. And like I said, I'm

9

there but I'm aware, I believe I'm aware. So I'm

10

still shackled. I'm shackled, because they

11

taken -- they got to transfer me to another bed.

12

And that's how I know I'm shackled.

13

Q. Why did they do that?

14

A. I'm not in an actual delivery room when

15

you stay in. Some rooms are where you can

16

deliver and stay in the same room. I'm not in

17

that type of room. So I have to be transported

18

to another room.

19

Q. Okay.

20

A. So by that time --

21

Q. Post delivery?

22

A. Exactly, post delivery.

23

So they take the handcuffs off, the

24

shackles off and they transfer me to the bed and

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49

1

I am wheeled to the next room.

2

Q. I just want to go back. And do you

3

remember when they took the leg shackle off you?

4

A. Yeah. When they transferred me to the

5

next bed.

6

Q. I mean before you had the baby, before

7

you delivered the baby.

8

MR. MORISSEY: Objection. She didn't say

9

that they took the shackle off.

10

THE WITNESS: Right, I just said I couldn't

11

feel it no more because I got the epidural.

12

BY MR. SMITH:

13

Q. I thought you said when they put you in

14

that device, you know --

15

A. I'm not sure, because I can't feel it.

16

I'm dead.

17

Q. You don't know if --

18

A. Right, because I can't feel it now. And

19

then my focus is mainly on pushing and --

20

Q. I know. I know. All right.

21

A. Well, like I said --

22

Q. So how long then do you stay in your

23

room after the baby was delivered?

24

A. After they cleaned me up, let's say

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50

1

another hour. Another hour. About an hour.

2

Q. Okay. And then when they moved you, do

3

you have both shackles on?

4

A. Yes.

5

Q. Okay. And in the other room they put

6

you in, describe that room?

7

A. It's a smaller room, with just a TV,

8

phone, bed and a bathroom. It's a private room.

9

It has a desk, couple of chairs in case I get

10

visitors or whoever sits in that room.

11

Q. And --

12

A. And I think it's on the same floor. I

13

don't remember going on the elevator or anything.

14

Q. Okay. And what officer was there? Was

15

it the same two officers or another officer?

16

A. It was Flemmings that took me to the

17

room. I went to sleep. When I woke up it was

18

another officer, Officer Martinez.

19

Q. Martinez?

20

A. Yes.

21

Q. And then you were shackled?

22

A. Yeah, I'm shackled. I'm shackled. I

23

stay shackled. I don't get unshackled until -- I

24

stayed from the 3rd to the 5th.

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51

1

Q. I don't know that. That's why I ask the

2

question.

3

A. No problem. I stayed from the 3rd to

4

the 5th. I stay shackled in handcuffs. I also

5

take care of my baby with the handcuffs and the

6

blue box. The blue box is a device that going

7

between the chain of the handcuffs. And that's

8

put on me, too. So I'm lifting my baby out the

9

crib with my hands, like a puppy. I'm also being

10

checked by somebody else, like the police

11

is -- the sheriff is put on me and then somebody

12

else in black uniform that come up and check,

13

make sure they locked. Like a special unit I

14

think you would call them.

15

Q. Okay. What were they for?

16

A. I guess to check the police.

17

Q. Check the police?

18

A. Make sure they doing they job.

19

Q. Okay.

20

MR. MORISSEY: By police you mean the

21

sheriffs?

22

THE WITNESS: Yes, yes, that's who I mean.

23

The sheriffs. Sheriff is doing they jobs.

24

BY MR. SMITH:

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52

1

Q. All right. And the shackles were just

2

on you the whole time?

3

A. The whole time. I also --

4

Q. It was always opposite, right?

5

A. Yes.

6

Q. Leg --

7

A. No, no.

8

Q. Wrist and ankle?

9

A. Wrist and then ankle. When I had the

10

baby they put the handcuffs on me with the blue

11

box. So it's heavy.

12

Q. All right. So the blue box, that

13

replaced the what?

14

A. No, it didn't replace anything. It made

15

it more -- what I'm trying to say I'm handcuffed.

16

Standard handcuff. The blue box what I'm saying

17

in between that. So it makes it even heavier.

18

MS. SHAPIRO: So you can't move your

19

hands --

20

MR. MORISSEY: Objection, only one person.

21

MS. SHAPIRO: Sorry.

22

THE WITNESS: I don't know it's there

23

really, because --

24

BY MR. SMITH:

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1

Q. Let's just say you don't know why?

2

A. Right. It's blue. And I guess so you

3

won't -- it's heavy. So it can be heavy.

4

Q. How heavy is it?

5

A. Oh, maybe four or five pounds.

6

Q. Four or five pounds?

7

A. With the whole thing, you know, with the

8

whole thing.

9

Q. How heavy is that blue box?

10

A. It's heavy. Because it's in the middle

11

of my wrist, so I have to lift it up.

12

Q. How much to your best guess, how

13

much --

14

A. Standard. It's a standard -- it goes to

15

the width of the handcuff.

16

Q. Okay. And what about your ankles, other

17

than the electronic monitoring bracelet, were

18

there any shackles on your ankles?

19

A. Yes.

20

Q. How was that? How did that work?

21

A. It was one shackle, one cuff with a

22

chain to go around inside the bed railing of the

23

bed and locked to me.

24

Q. 24 hours a day?

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54

1

A. 24 hours a day.

2

Q. So it's your testimony that you were

3

never able to use the bathroom that was in the

4

room?

5

A. Right. I never used it.

6

Q. Never used it?

7

A. Uh-uh.

8

Q. What about did you shower?

9

A. I didn't shower. I didn't shower. They

10

would --

11

Q. Did they give you a sponge bath?

12

A. Yeah, I would take a sponge. They

13

wouldn't give it to me. When I had to use the

14

bathroom, I would have to call the nurse. And

15

the nurses said that I was -- they wasn't really

16

aware I was shackled. They thought I was being

17

lazy.

18

Q. Do you know why they thought that, they

19

would think that?

20

A. I don't think they was aware that

21

why -- why I think that, because I felt --

22

Q. If you know.

23

MR. MORISSEY: Objection. You don't know

24

what the nurses thought.

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55

1

THE WITNESS: Right. Okay.

2

BY MR. SMITH:

3

Q. I asked her if she knew.

4

A. No, I didn't know.

5

Q. After your attorney told you. That's

6

okay. That's fine.

7

Any family visit you?

8

A. No visitors.

9

Q. Not allowed?

10

A. They wasn't allowed. My baby daddy

11

tried -- my father of the baby tried to visit me

12

but he was stopped. Wasn't no phone calls

13

allowed.

14

Q. And the baby's in the room with you?

15

A. Yeah.

16

Q. And you stayed there until --

17

A. The 5th. I did also have a surgery

18

while I was there. I received a tubal ligation

19

too.

20

Q. What's that?

21

A. That's where the tubes are closed up so

22

you wouldn't have no more babies. And I was

23

shackled during that procedure, too. And I was

24

also --

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56

1

Q. Let's stop there. I wasn't aware of

2

that.

3

You were then taken to the OR then

4

for that procedure?

5

A. Yeah. I was taken to OR.

6

Q. When was that done?

7

A. Like the 4th.

8

Q. And tell me about that. How did that --

9

how was that arranged for you?

10

A. I was taken off the shackles and put on

11

the bed and then shackled again and rolled to ER.

12

OR.

13

Q. They take you from your bed where you're

14

shackled?

15

A. Uh-huh.

16

Q. When I say you're shackled, I think we

17

can agree that it's always in either the

18

left -- the one wrist or the right wrist or

19

you're in the blue box, right?

20

A. Either or. Either or. Yes, I agree

21

with that.

22

Q. Don't want to keep on having to ask you

23

every minute of the day the position of the

24

shackle.

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57

1

So you are then taken on the

2

gurney?

3

A. Yes.

4

Q. And shackled again?

5

A. And I'm shackled again. And I go to the

6

ER.

7

Q. Who took you from your room, hospital

8

room, to the operating room?

9

A. The sheriff and a nurse.

10

Q. A nurse?

11

A. Yes.

12

Q. What sheriff was that?

13

A. I'm not sure of her name but it's like

14

Patterson or Peterson. Officer Patterson or

15

Peterson. She is accompanied by another officer,

16

Officer Moday. Monee. I'm wheeled there and

17

I'm --

18

Q. What time of day is that?

19

A. Afternoon. I'm not sure of the time.

20

But it's afternoon.

21

Q. Let's go back, because this took me by

22

surprise.

23

Did you make that decision -- was

24

that already arranged for you to have the surgery

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58

1

done?

2

A. Yes, that was arranged.

3

Q. This was something you worked out in the

4

MOMS program that after you deliver --

5

A. I worked it out with the -- my ob-gyne

6

to -- when I had the baby that I have my tubes

7

tied. So it's a procedure that has to be

8

approved like maybe 30 days before I had a baby.

9

So like my eighth month, seventh month.

10

Q. Okay. That's good enough. Okay.

11

Now, so then tell me what you

12

remember about the operating room, the OR.

13

A. Okay. Prior to going to that, the

14

anesthesiologist came out and said that I

15

couldn't come into the operating room with the

16

shackles on because of the magnetic force in the

17

light. And that he also stated to the officers

18

that he didn't want the shackles on because I

19

would be under anesthesia and I wouldn't be able

20

to move anywhere and there's no purpose for that.

21

So she said she was following

22

orders. And he said, well, he didn't want them

23

on because it was a risk. So they called

24

captains and they came up with a soft shackle.

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1

Q. What is that, a soft shackle?

2

A. It's made of cloth.

3

Q. Okay. I know what you mean.

4

A. So I stayed in the hallway about four

5

hours until they found what they needed to find.

6

Okay. So I end up going in surgery -- finally

7

going surgery with soft shackles. I come out to

8

the recovery. When I wake up I'm in the recovery

9

room and I'm shackled. Now I got on the regular

10

shackles.

11

Q. By the time you woke up you had the

12

regular metal shackles?

13

A. Right.

14

Q. And how were you shackled, to the --

15

A. I was shackled to the bed railing.

16

Q. Bed railing?

17

A. Yes, to the bed railing.

18

Q. Was it one leg and one arm or did you

19

have both arms?

20

A. Yeah.

21

Q. Which one?

22

A. It was one leg and one arm.

23

Q. Okay. And how long were you in recovery

24

room for?

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60

1

A. I don't know. I just woke up in there.

2

Q. Okay. And then when did you return to

3

your regular room, was it that day or the next

4

day?

5

A. That day.

6

Q. That day.

7

A. Uh-huh.

8

Q. Do you know what time of day it was?

9

A. Uh-uh.

10

Q. Was it nighttime?

11

A. Could have been. Could have been.

12

Q. Could have been?

13

A. Could have been. Like I said, it was a

14

long day in the hallway and --

15

Q. I agree.

16

And when you got back to your room,

17

you were shackled again?

18

A. Yes, returned to the bed, shackled.

19

Q. Who was the correctional officer?

20

A. I'm not sure.

21

Q. Following morning, how long did you

22

stay?

23

A. Following morning I'd say about 8:00 the

24

next day.

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1

Q. On the 5th?

2

A. Yeah, on the 5th, I stayed until maybe

3

about 3:00'ish.

4

Q. Were you shackled the whole time?

5

A. Yeah. Haymarket staff came and then I

6

was released.

7

Q. Well, let's talk about that with the

8

Haymarket then.

9

Was it the same lady? Was it

10

Michelle?

11

A. No, no, it was a lady named Delores that

12

came and got me.

13

Q. And she comes up to your room; is that

14

true?

15

A. Yeah, she came up to my room and said

16

that she was here to get me and she said that she

17

was making sure everything was prepared for me to

18

be released with a doctor, the baby was being

19

released. And I guess the officer got the okay

20

to release me and she unshackled me.

21

Q. Discharge summary instructions?

22

A. Yeah, instructions. Typical discharge

23

papers. And the officer left and I prepared

24

myself to go with my baby. And I went back to

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62

1

the MOMS program.

2

Q. How did you get -- what transportation

3

did you go --

4

A. I left in the Haymarket staff van.

5

Q. A van?

6

A. Yes.

7

Q. Who was with you in the van?

8

A. Me.

9

Q. You were driving the van?

10

A. And Ms. Delores. Delores was driving

11

the van.

12

Q. And the baby?

13

A. And the baby.

14

MR. SMITH: Do you want to take a break for

15

a couple of seconds?

16

MR. MORISSEY: Sure.

17

(Recess.)

18

BY MR. SMITH:

19

Q. Back on the record.

20

We left off at I believe you were

21

going -- you were transported and back at MOMS.

22

Okay.

23

A. Yes.

24

Q. And then you said you stayed there until

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63

1

approximately September?

2

A. The 23rd.

3

Q. The 23rd. Okay. And where did you go

4

after that?

5

A. Oh, I was given the opportunity --

6

Q. Let me back up.

7

Did you have any more -- any

8

problems during the period when you returned to

9

MOMS to when you left MOMS? So it would be from

10

May 5th until September.

11

A. What you mean by problems, that I had to

12

go back to the hospital or --

13

Q. No, like disciplinary problems or

14

anything, were you written up, or any problems

15

with the staff, those general type of problems,

16

fighting or anything.

17

A. No, just depression, postpartum

18

depression, standard stuff.

19

I talked about the situation with

20

my therapist and stuff like that.

21

Q. What situation?

22

A. That I -- what I had just experienced.

23

Q. Did you have to go back -- did you seek

24

any type of medical treatment for the shackling

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64

1

that happened to you?

2

A. No, I didn't seek no medical treatment,

3

like -- I would like to ask you like did I think

4

I needed some help from that?

5

Q. No. Let me ask you this. We'll get to

6

that.

7

As far as being shackled, which you

8

testified to during that period of time, did you

9

receive any type of physical injury as a result

10

of it?

11

A. No, no cuts or bruises or nothing like

12

that, no.

13

Q. Never saw anybody that had to go back to

14

Cermak or anything?

15

A. No.

16

Q. Now, you testified that you had

17

depression, correct?

18

A. Yeah.

19

Q. And did you have depression before this?

20

A. Yes, I did.

21

Q. Did you take medication for your

22

depression?

23

A. Yes, I did.

24

Q. What did you take?

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1

A. Zoloft.

2

Q. Zoloft?

3

A. Yes.

4

Q. And you indicated that when you got back

5

to MOMS, that you talked to a therapist?

6

A. My regular therapist, regular meeting,

7

yeah.

8

Q. Who was your therapist?

9

A. At Haymarket her name is Patty Fazio.

10

Q. Is that the only therapist that you had?

11

A. Yes. Pertaining to my mental, you know.

12

Q. Patty Fazio?

13

A. Fazio. F-A-Z-I-O.

14

Q. And did you see her prior to going to

15

Stroger Hospital?

16

A. Oh, yes. On a weekly basis.

17

Q. Did you get to see her more often after

18

you returned from Stroger?

19

A. No. It wasn't in her schedule to see me

20

more often.

21

Q. Okay. How long have you been on Zoloft?

22

A. I was on Zoloft -- I've been diagnosed

23

with depression like maybe since 2000.

24

Q. You've been on it for like nine years?

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66

1

A. No, I haven't been on it. I wouldn't

2

take the medication at first.

3

Q. You would go off and on?

4

A. Right, yeah.

5

Q. Running out?

6

A. No, I haven't had it.

7

Q. Is there a reason why not?

8

A. I'm being prescribed -- what I'm trying

9

to say, I'm being assessed for a diagnosis for my

10

Zoloft. I'm just getting out, so I'm into a Mile

11

Square, Mount Sinai Mental Health program, so I'm

12

assessed as we speak. And my therapist there is

13

Mr. Kelly.

14

Q. Did you go back to the county

15

jail -- did you go back to the compound division

16

three or division four or did you get shipped

17

right from MOMS to Dwight?

18

A. No, I went to division -- I mean I left

19

MOMS program to another program called Sheriff

20

Furlough.

21

Q. Where is that at?

22

A. That's -- the program itself is in Cook

23

County Jail but you can go home. So I went home.

24

I went home and then I would go to Sheriff

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1

Furlough program every day from 8:00 to 3:00.

2

Q. With your baby?

3

A. No, not with my baby, just with me. I

4

just had to show up. No kids was allowed in

5

County Jail.

6

Q. All right. You'd show up back at --

7

A. County.

8

Q. Where?

9

A. I think it's five, division five. You

10

go to division five.

11

Q. Did you stay in that County Sheriff

12

Furlough program until you were shipped to the

13

IDOC?

14

A. Until the disposition of my case.

15

Q. What was the -- what happened to your

16

case?

17

A. I was --

18

Q. Did you plead guilty?

19

A. I pled guilty to a theft.

20

Q. Okay.

21

A. Three years. Three years.

22

Q. So then did you continue to see any

23

mental health professionals when you went to the

24

IDOC?

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68

1

A. Yeah, when I went to Dwight, yes. I

2

ended up seeing him like a week before I got out.

3

I let him know through my intake that I was on

4

medication coming into the Department of

5

Corrections. Illinois Department of Corrections.

6

Q. Did you -- where is the intake for the

7

females? Did you go right to Dwight?

8

A. Yes.

9

Q. Dwight -- go right from the County to

10

Dwight?

11

A. Yes, sir.

12

Q. Did you tell the intake personnel at

13

Dwight about the shackling experience you had?

14

A. No.

15

Q. No?

16

A. No.

17

Q. Did you speak to anybody in Dwight, any

18

medical personnel about the shackling experience?

19

A. No, sir.

20

Q. When you got out -- when did you get out

21

from Dwight?

22

A. January 27, '09.

23

Q. Have you since spoken to anybody, any

24

medical professional about your shackling

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69

1

experience?

2

A. Yes, I talked to the therapist that I'm

3

trying -- where I'm at now, Mile Square.

4

Q. Where are you at?

5

A. Mile Square, the place that I go for my

6

therapist now.

7

Q. What is that? Who runs that? The

8

state?

9

A. I suppose so.

10

Q. Mile Square?

11

A. Mile Square. It's a subsidy of Mount

12

Sinai Hospital, so...

13

MR. SMITH: Do you know anything about this,

14

the program, Tom?

15

MR. MORISSEY: I'm not being deposed.

16

MR. SMITH: Off the record.

17

(Discussion off the

18

record.)

19

THE WITNESS: So I just start seeing him

20

last week. Because I need my medication and I

21

haven't had it since I've been released from

22

Dwight. They didn't send it with me or anything.

23

BY MR. SMITH:

24

Q. Well, as we sit here today, how do you

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70

1

feel about the shackling experience?

2

A. I feel outraged.

3

Q. Why is that?

4

A. Because I felt like I had my baby in

5

captivity.

6

Q. In captivity?

7

A. Uh-huh. And I'm mad at myself, you

8

know.

9

Q. You're what?

10

A. I'm upset with myself about it.

11

Q. Why are you upset at yourself?

12

A. Because I felt like it's something that

13

she didn't have to go through. It could have

14

been avoided, if I made the right decision and

15

not getting arrested, you know, not committing a

16

crime.

17

Q. Okay. All right.

18

Was this the first time you had a

19

one of your babies in while being incarcerated?

20

A. No. The first child I ever had

21

incarcerated was Marvellis, my 19-year old.

22

Q. Where was that at?

23

A. Dwight Correctional Center.

24

Q. How many times -- let me show you this.

Plaintiffs' Exhibit 2

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71

1

I'm not doing this to embarrass you. I want you

2

to look at this Illinois Department of

3

Corrections. It doesn't have all your arrests.

4

Some of the smaller misdemeanors and stuff we're

5

not concerned about, they're not on here. But

6

looking at it with your lawyer, is there anything

7

you disagree with?

8

A. Pertaining to this?

9

Q. Pertaining to those charges and

10

sentences and dates.

11

A. No, sir.

12

Q. Do you agree with everything?

13

A. Basically, yeah.

14

MR. SMITH: I'm going to strike the Ms.

15

Jackson Exhibit No. 1, which was the

16

identification card. I'm not going to be using

17

it as an exhibit. And I will mark this Exhibit

18

No. 2.

19

(WHEREUPON, said document

20

was marked as Jackson

21

Exhibit No. 2 for

22

Identification.)

23

BY MR. SMITH:

24

Q. I'm going to show you what has been

Plaintiffs' Exhibit 2

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72

1

previously marked as Jackson Exhibit No. 1 and

2

carefully read over this complaint and when

3

you're finished with it I'll ask you some

4

questions.

5

MR. MORISSEY: Off the record.

6

(Discussion off the

7

record.)

8

BY MR. SMITH:

9

Q. Back on the record.

10

You've read this document?

11

A. Yes.

12

Q. Is everything true and accurate to the

13

best of your belief?

14

A. To the best of my belief.

15

MR. MORISSEY: Objection. She doesn't have

16

personal knowledge of certain, about the other

17

one --

18

MR. SMITH: That's why I said to the best of

19

her ability.

20

BY MR. SMITH:

21

Q. If you had an opportunity to change

22

anything in the complaint, would you do it?

23

A. Would I do it? No. I wouldn't change

24

it.

Plaintiffs' Exhibit 2

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73

1

Q. If there is anything to add to the

2

complaint, would you do it?

3

A. The --

4

MR. MORISSEY: I'm going to object. You're

5

asking a non-lawyer whether or not she would add

6

any additional thing to a complaint, and she's

7

not equipped to draft the complaint. That's why

8

she has counsel to do it. But you can answer the

9

questions to the best of your ability.

10

THE WITNESS: When I talked about the

11

surgery part of it, the surgery.

12

BY MR. SMITH:

13

Q. Okay.

14

A. That's about it. But other than that,

15

no.

16

Q. Do you know Catherine Zaborowski?

17

A. I've seen her. I mean we was there

18

together for a period of time.

19

Q. Have you --

20

A. I was gone by the time she delivered.

21

Q. Okay. Have you and Catherine Zaborowski

22

ever talked about this case?

23

A. No, we didn't talk about the case. We

24

just talked about...

Plaintiffs' Exhibit 2

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74

1

Q. The shackling?

2

A. The shackling experience. The

3

experience.

4

Q. The experience?

5

A. Yeah, the experience.

6

Q. She told you about her being shackled?

7

A. Yes.

8

Q. And you told her about you being

9

shackled?

10

A. Yes.

11

Q. Is there anybody else that you told, any

12

other inmates that you told, any other people

13

that you told that you were shackled?

14

A. I didn't have to tell nobody. It was a

15

procedure that was being done, but -- at Stroger.

16

Let me say this. My prenatal care was at Mount

17

Sinai and my delivery was at Stroger. And

18

earlier part of the question, we was given a --

19

we didn't have a choice which hospital, we only

20

had two hospitals we would go to, Stroger and

21

Mount Sinai. But if it's called by ambulance, it

22

was up to the ambulance which one.

23

Q. I know. But my question was, did you

24

physically talk to any other inmates about your

Plaintiffs' Exhibit 2

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75

1

shackling experience other than Catherine

2

Zaborowski?

3

A. Yeah, I talked in groups.

4

Q. How many people would you say you talked

5

to?

6

A. I expressed my feelings in group to the

7

16 women that was housed there.

8

Q. You told everybody at MOMS?

9

A. My experience, what I went through,

10

yeah.

11

Q. How did you come in contact with

12

Mr. Morrissey?

13

A. I called him.

14

Q. You called him?

15

A. Uh-huh. I called him on the phone. And

16

I --

17

Q. Were you referred to him by somebody?

18

A. No. I had kind of knew of him -- things

19

on I seen on the jailhouse -- it was a lawsuit he

20

had and it was posted all over the jailhouse

21

about being strip searched. So I got his name

22

off --

23

Q. No sheriff officer told you?

24

A. No, no staff member, no. I just called

Plaintiffs' Exhibit 2

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76

1

411.

2

MR. SMITH: Thank you.

3

MR. MORISSEY: You're done. No further

4

questions.

5

MR. SMITH: Waive?

6

MR. MORISSEY: She waives signature.

7

AND FURTHER DEPONENT SAYETH NAUGHT

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Plaintiffs' Exhibit 2

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77

1

STATE OF ILLINOIS )

) SS:

2

COUNTY OF C O O K )

3

I, MAUREEN A. WOODMAN, Certified Shorthand

4

Reporter and Notary Public in and for the County

5

of Cook and State of Illinois, do hereby certify

6

that SIMONE JACKSON was first duly sworn to

7

testify the whole truth and that the above

8

deposition was recorded stenographically by me,

9

and was reduced to typewriting under my personal

10

direction.

11

I further certify that the said deposition

12

was taken at the time and place specified.

13

I further certify that I am not a relative

14

nor employee or attorney nor counsel of any of

15

the parties, nor a relative or employee of such

16

attorney nor counsel nor financially interested

17

directly nor indirectly in this action.

18

In witness whereof, I have hereunto set my

19

hand and affixed my seal of office at Chicago,

20

Illinois, this

day of

21

A.D., 2009.

22

23

MAUREEN A. WOODMAN, C.S.R.

24

License No. 084-002740

Plaintiffs' Exhibit 2

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Exhibit 3

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 96 of 175 PageID #:395

Members of the Putative Class Identified as of 9/14/0

1

Melissa

2

Sharonda

3

Jamille

4

Kiedra

5

Tomeika

6

Wendy

7

Lucretia

8

Charlene

9

Verna

10

Mariane

11

Victoria

12

Jamie

13

Jennifer

14

Candice

15

Jennifer

16

Cora

17

Nicole

18

Jasmine

19

Latrice

20

Ida

21

Denae

22

Shareka

23

Lawanda

24

Eric

25

Deborah

26 Veronica

27

Tammy

28

Felicia U

29

Kimberly

30

Brittany

31

Laura A.

32

Ashley

33

Londie

34

Towana

35

Stephanie

36

Angela

37

Anastasia

38

Denise

39

Teresa

40

Sheena J.

41

Martha

42

Anna

43

Kawana

44

Elaine

45

Charone

46

Joy

47

Latiana A.

48

Jassica

49

Christine

Plaintiffs' Exhibit 3

Page 1

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Exhibit 4

Handcuffing pregnant inmates - Chicago Tribune

http://archives.chicagotribune.com/2009/jun/25/opinion/chi-0625vpletters...

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 98 of 175 PageID #:397

Archives Opinion
Return to your last page
Archive for Thursday, June 25, 2009
Handcuffing pregnant inmates
June 25, 2009
Handcuffing pregnant inmates
This is in response to “Suit: Inmate shackled in labor; Woman was incarcerated days before hospital delivery” (News, June 12). Attorneys Thomas Morrissey and Kenneth Flaxman allege that the jail’s policy for handcuffing pregnant inmates while they are treated at outside hospitals violates state law. Nothing could be further from the truth. In fact, the jail’s written policy specifically cites the statute in question and orders correctional officers to not handcuff pregnant inmates while they are being transported to the hospital and while they are delivering their babies. Anytime a detainee is taken outside the jail for medical treatment, he or she becomes an immediate escape risk. That is why we are permitted by law to cuff pregnant inmates to their hospital beds if they are not in labor and after child birth. Many female inmates have successfully escaped custody while receiving medical treatment (including child birth) at hospitals outside of Cook County Jail. The policy is in place to protect both the hospital staff and the female inmates. In fact, not long ago, a female inmate who was hospitalized for surgery died while jumping from a hospital window at the in an escape attempt while she was recovering from the operation. Further, it should be mentioned that the sheriff’s office has operated a program called MOM’s that has allowed hundreds of pregnant inmates who are charged with non-violent crimes to receive therapeutic pre- and post-natal care while in custody. The program includes substance abuse counseling and mental-health treatment for pregnant inmates, and it allows them to remain with their babies after birth in a secure setting outside the jail walls.
– Thomas J. Dart, sheriff of Cook County, Chicago

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Related articles Plaintiffs' Exhibit 4

Page 1
9/3/2009 8:46 PM

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Exhibit 5

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1

1

IN THE UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

3

4

CATHERINE ZABOROWSKI and

)

SIMONE JACKSON,

)

5

individually and on behalf )

of a class,

)

6

)

Plaintiffs,

)

7

)

vs.

) No. 08 C 6946

8

)

SHERIFF OF COOK COUNTY and )

9

COOK COUNTY, ILLINOIS,

)

)

10

Defendants.

)

11

12

13

14

The deposition of GARY HICKERSON,

15

called for examination, taken pursuant to

16

notice and pursuant to the Federal Rules of

17

Civil Procedure for the United States District

18

Courts pertaining to the taking of depositions,

19

taken before Kathleen P. Lipinski, Certified

20

Shorthand Reporter and Notary Public, at 500

21

Daley Center Chicago, Illinois, commencing at

22

10:15 o'clock a.m. on the 9th day of July,

23

A.D., 2009.

24

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2

1

APPEARANCES:

2

Mr. Thomas G. Morrissey

(Thomas Morrissey, Ltd.)

3

10249 South Western Avenue

Chicago, Illinois 60643

4

Phone: (773) 233-7900

5

On behalf of the Plaintiffs;

6

Mr. Ronald Weidhuner

7

(State's Attorney of Cook County, Illinois

Civil Actions Bureau)

8

500 Daley Center

69 West Washington

9

Chicago, Illinois 60602

Phone: (312) 603-5527

10

On behalf of the Defendant.

11

12

13

14

ALSO PRESENT: Lindsey Scarpino,

Lindsey Shapiro, John Braves.

15

16

17

18

19

20

21

22

23

24

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3

1

I N D E X

2

WITNESS

PAGE

3

GARY HICKERSON

4

Direct Examination by Mr. Morrissey

04

5

Cross-Examination by Mr. Weidhuner

53

6

Redirect Examination by Mr. Morrissey 56

7

8

9

10

11

12

13

E X H I B I T S

14

HICKERSON DEPOSITION EXHIBIT

PAGE

15

No. 1

10

16

No. 2

10

17

No. 3

16

18

No. 4

29

19

20

21

22

23

24

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4

1

(WHEREUPON, documents marked

2

Hickerson Deposition Exhibit

3

Nos. 1-5, for identification.)

4

(WHEREUPON, the witness was

5

duly sworn.)

6

MR. MORRISSEY: This is a discovery

7

deposition pursuant to Rule 30(b)(6) in regards

8

to the practices and procedures of the Sheriff

9

of Cook County in regards to restraining and/or

10

shackling women that are pregnant and are

11

brought to a hospital.

12

The preliminary question is, Ron, are

13

you producing Superintendent Hickerson pursuant

14

to the Rule 30(b)(6) --

15

MR. WEIDHUNER: Yes.

16

WHEREUPON:

17

GARY HICKERSON,

18

called as a witness herein, having been first

19

duly sworn, was examined and testified as

20

follows:

21

DIRECT EXAMINATION

22

BY MR. MORRISSEY:

23

Q. Superintendent, you've been deposed

24

before in other matters, I'm sure, correct?

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5

1

A. Yes, sir.

2

Q. Will you please state your full name

3

for the record?

4

A. Gary Hickerson.

5

Q. You're currently superintendent of

6

what division?

7

A. Administration.

8

Q. Your direct supervisor is who?

9

A. Director Brown, Director Danny Brown.

10

Q. For what period of time have you been

11

the Superintendent of Administration?

12

A. Mid May of 2009 until present.

13

Q. You were recently deposed in a case

14

called Streeter vs. Sheriff of Cook County,

15

correct?

16

A. Yes, sir.

17

Q. Have you had an opportunity to review

18

your answers in that deposition?

19

A. No, sir.

20

Q. Would your answers be the same today

21

as they were then in regards to your various

22

titles and positions with the Cook County

23

Sheriff?

24

A. Yes, sir.

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6

1

Q. Briefly since January of 2006 until

2

the present, can you tell me the various

3

positions you've held with the Sheriff of Cook

4

County?

5

A. January of 2006, I was superintendent

6

in Division 5. In 2007, I was superintendent

7

of Division 4 and that was until mid August

8

of -- I'm sorry, 2006 of 5, 2007 of 4. I know

9

I moved to External Ops in August of 2008.

10

Q. Prior to being Superintendent of

11

External Operations in August of 2008 -- And I

12

have to keep my voice up because we have this

13

horrible HV -- heating and ventilation system

14

in this room.

15

Prior to August of 2008, what was your

16

previous position with the Sheriff?

17

A. Prior to August?

18

Q. Prior to August of 2008.

19

A. Prior to August of 2008, I was a

20

superintendent in Division 4.

21

Q. Prior to August of 2008, had you ever

22

worked in External Operations as an employee of

23

the Sheriff?

24

A. Yes. It was referred to as

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7

1

External -- It was referred to as Chief

2

Security at that time.

3

Q. When did you work in Chief Security?

4

A. As an officer in 1983 to 1986, as a

5

sergeant from 1987 until 1991, and a short

6

period for a few months after that as a

7

lieutenant in 1991.

8

Q. Would it be correct, then, to say that

9

since 1991 up until August of 2008, you had not

10

had any either supervisory responsibilities or

11

officers that were assigned to hospital units

12

or you didn't work in hospital units?

13

A. That's correct.

14

Q. For how long were you the

15

Superintendent of External Operations?

16

A. Nine months.

17

Q. When did you leave External

18

Operations?

19

A. Mid May of 2009.

20

Q. What is External Operations?

21

A. It's the area that -- It's the

22

division that handles all the perimeter

23

security of the Cook County Jail as well as all

24

the outlying hospital security for inmates that

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8

1

are hospitalized, I should say.

2

Q. Does External Operations also have

3

officers that are assigned to transport inmates

4

from the jail complex to outlying hospitals?

5

A. Yes.

6

Q. During the time you were the

7

superintendent, how many officers were assigned

8

the duty of transportation of inmates from the

9

jail to outlying hospitals?

10

A. We assign four officers per shift to

11

handle that detail and occasionally more

12

depending on how many inmates would actually

13

get ill at the jail at that time.

14

Q. Are there any vehicles under the

15

control of External Operations that are used to

16

transport detainees from the jail to hospital

17

complexes?

18

A. Yes.

19

Q. What types of vehicles are used?

20

A. Depending on the medical needs, we do

21

have handicapped vehicles. If the doctor

22

allows, we use the squad cars.

23

Q. What types of handicap vehicles are

24

under the jurisdiction of External Operations?

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9

1

A. There are two that I know of that are

2

assigned that we use when an inmate is in a

3

wheelchair that we have to use for handicap.

4

Q. Are those ambulances or vans?

5

A. The ambulances are not driven by us.

6

They are in the control of Cermak. We put an

7

officer in there before transporting, but we do

8

not drive that vehicle. It's Cermak's

9

vehicles.

10

Q. The other vehicles that are used to

11

transport inmates, what are they?

12

A. Squad cars.

13

Q. You said squad cars and you also have

14

two handicap vans?

15

A. Yes, sir, two handicap vans.

16

Q. And there are ambulances that Cermak

17

has, correct?

18

A. Correct.

19

Q. Are there any general orders or

20

divisional procedures that are given to

21

officers that transport inmates from the jail

22

to hospital facilities?

23

A. Yes.

24

Q. What are those written orders?

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10

1

A. There is a hospital and policy

2

procedure. I'm not sure of the number, but we

3

have hospital policy and procedures in our SOPs

4

that all officers are given.

5

Q. Showing you what has been marked as

6

Exhibit 1, it's a document that's dated

7

effective date July 25, 2006, and it's a

8

nine-page document. I'd ask you to take a look

9

at that document for a moment.

10

(WHEREUPON, witness viewing

11

document.)

12

BY THE WITNESS:

13

A. Okay.

14

BY MR. MORRISSEY:

15

Q. Is this the document you're referring

16

to?

17

A. Yes, sir.

18

Q. Are there any other documents that

19

you're aware of?

20

A. No, sir. This was changed when I was

21

a superintendent.

22

Q. I'm showing you what has been marked

23

as Plaintiff's Exhibit Number 2 with an

24

effective date of 2008. It's an eight-page

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11

1

document. It says it's related to General

2

Order 9.44. I'd ask you to take a look at

3

that.

4

Is that the document you're referring

5

to as updating the Exhibit 1 document?

6

A. Yes, sir.

7

Q. In regards to correctional officers

8

and supervisors that are responsible for

9

guarding inmates that are hospitalized, are

10

there any other written general orders or

11

divisional procedures that you're aware of that

12

were applicable during the period of time from

13

December of 2006 to the present?

14

A. No, sir.

15

Q. When you came in to External

16

Operations in August of 2008, who was the

17

superintendent that immediately preceded you?

18

A. Superintendent Michael Holmes.

19

Q. In August of 2008, was there a

20

procedure -- a practice and a written procedure

21

in regards to shackling all detainees that were

22

housed outside the Cook County Department of

23

Corrections complex?

24

A. Yes, sir.

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12

1

Q. What was the written policy and

2

practice in regards to -- Strike that.

3

In August of 2008, were all detainees

4

that were housed outside of the Cook County

5

Department complex classified as high-risk

6

inmates?

7

A. Yes, sir.

8

Q. As a superintendent of the External

9

Operations, what is a high-risk inmate?

10

A. The definition that we're using is any

11

inmate outside of the compound is considered a

12

high-risk inmate.

13

Q. Would an elderly inmate that is over

14

70 years old be considered a high-risk inmate

15

if they were hospitalized?

16

A. According to this definition, yes,

17

sir.

18

Q. As far as the practice when you were

19

Superintendent of External Operations, would a

20

70-year-old inmate be considered a high-risk

21

inmate?

22

A. Yes, sir.

23

Q. If a person was in a -- was a

24

paraplegic and was hospitalized and a detainee

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1

at the Cook County Department of Corrections,

2

would that detainee who was a paraplegic who

3

was housed at Stroger be considered a high-risk

4

inmate?

5

A. Yes, sir.

6

Q. If a person had open heart surgery and

7

was a detainee of the Sheriff, if that person

8

was hospitalized at Stroger Hospital, would

9

that person be considered a high-risk inmate?

10

A. Yes, sir.

11

Q. Now, if a person had open heart

12

surgery and was a detainee of the Sheriff and

13

was hospitalized at Cook County -- at Stroger

14

Hospital, would that person be shackled?

15

MR. WEIDHUNER: I'm going to object

16

because time frame is too general. Are we

17

talking during the operation, postop, or

18

exactly when in regards to this? Three months

19

ago, or what?

20

BY MR. MORRISSEY:

21

Q. Assuming that a person was a detainee

22

of the Sheriff and within 48 hours after the

23

surgery was placed in the hospital room, would

24

that person be considered a high-risk inmate?

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14

1

A. Yes, sir.

2

Q. And would that person necessarily be

3

shackled?

4

A. That would depend on the doctor's

5

orders, sir.

6

Q. Assuming that there were no specific

7

doctor's orders, under the practice of the

8

Sheriff, would that person who had received

9

open heart surgery 48 hours before be

10

considered a high-risk inmate and be shackled?

11

A. Yes, sir.

12

Q. When a person under the practice of

13

the Sheriff was shackled in a hospital room,

14

describe what the shackling included.

15

A. The shackling included the shackles

16

were attached to the bedframe and attached to

17

the leg, if we did it on the left side, then

18

the cuff would be cuffed on the right side of

19

their hand.

20

Q. If a detainee was housed -- Strike

21

that.

22

If a detainee of the Sheriff was

23

paralyzed and was hospitalized at Stroger

24

Hospital, would that -- and assuming that there

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15

1

was no specific doctor's order, would that

2

person be shackled pursuant to the Sheriff's

3

practice and policy?

4

A. Yes, sir.

5

Q. When you came in to the External

6

Operations in August of 2008, did you review

7

the divisional procedure?

8

A. Yes, sir.

9

Q. After you reviewed the divisional

10

procedure which is in front of you as

11

Exhibit 1, did you find it was necessary to

12

make any changes to that divisional --

13

A. Yes, sir.

14

Q. After reviewing it, what concerns did

15

you have about the divisional procedure which

16

is marked Exhibit 1?

17

A. The -- Some of the wording. We

18

decided to change some of the wording to spell

19

out exactly what we were doing. It wasn't the

20

actual policy itself, just some of the wording

21

in the policy itself of how we were handling

22

it.

23

Q. In regards to the written policy which

24

was in effect in August of 2008, did you make

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16

1

any changes in regards to women that were

2

detainees of the Sheriff that were brought to

3

the hospital when they were pregnant?

4

A. We did change some of the verbiage.

5

Q. Specifically what changes were made in

6

regards to women that were brought to the -- to

7

a hospital while pregnant?

8

A. I might stand corrected. It doesn't

9

look like we changed anything in the verbiage.

10

Q. So the written policy in regards to

11

women that leave the Cook County Jail complex

12

and go to a hospital while pregnant was not

13

changed by you after you became Executive

14

Director -- I'm sorry, after you became

15

Superintendent of External Operations?

16

A. That's correct.

17

Q. Were there any other written

18

directives or general orders that were changed

19

by you after becoming External Operations

20

superintendent in regards to pregnant women

21

that are hospitalized?

22

A. No, sir.

23

Q. Turning to Exhibit 3, if you will, for

24

a moment, it's an External Operations daily

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17

1

detainee hospitalization checklist for a woman

2

by the name of Simone Jackson dated 5/2/08. Do

3

you have that document in front of you?

4

A. No, I do not.

5

(WHEREUPON, document

6

tendered.)

7

BY MR. MORRISSEY:

8

Q. Take a moment to look at that

9

document. It's actually a two-page document.

10

(WHEREUPON, witness viewing

11

document.)

12

BY THE WITNESS:

13

A. Okay.

14

BY MR. MORRISSEY:

15

Q. In regards to Exhibit 3, Exhibit 3, is

16

that a form used by your correctional officers

17

that are assigned to External Operations?

18

A. Yes, sir.

19

Q. Was this form in existence at the time

20

that you were superintendent?

21

A. Yes, sir.

22

Q. And was this form -- Strike that.

23

What is the purpose of a form which is

24

titled "External Operations Daily Detainee

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18

1

Hospitalization Checklist"? What is the

2

purpose of it?

3

A. It is an informational sheet for the

4

supervisors to check to see if there's any

5

pertinent information day to day as to what

6

happened with the patient, or the inmate I

7

should say.

8

Q. What information is contained on the

9

form?

10

A. The officer that's assigned there

11

signs the sheet. The sergeant that is making

12

rounds signs the sheet. Any lunch relief

13

officers would sign the sheet. Any notations

14

for doctors' orders or requests would have

15

that, as well.

16

Q. Does the form also indicate whether or

17

not the prisoner was shackled during the course

18

of the day?

19

A. Yes.

20

Q. Why does this form indicate when a

21

prisoner/detainee is handcuffed or the

22

handcuffs are removed?

23

A. Why?

24

Q. Yes.

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19

1

A. That's part of our protocol. If

2

you're going to remove restraints, we need to

3

document it and notify your supervisor.

4

Q. It would be correct, then, to say that

5

the protocol or practice of the Sheriff was for

6

the guards to have the hospitalized inmate

7

shackled?

8

A. Correct.

9

Q. At all times, correct?

10

A. Correct.

11

Q. And by shackling, what do you mean?

12

A. Shackling the leg to the bedframe and

13

the hand to the other part of the bedframe.

14

Q. So for purposes of this deposition,

15

when I state "shackling," you understand what I

16

mean as far as a hospitalized detainee,

17

correct?

18

A. Yes, sir.

19

Q. And is it correct that this standard

20

form is used to note when, if at all, the

21

shackles are removed by the guards during the

22

course of a day, correct?

23

A. Yes, sir.

24

Q. And it's the obligation of the guard

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20

1

under the protocol or practice to make a record

2

if the shackles are removed from a hospitalized

3

detainee, correct?

4

A. Yes, sir.

5

Q. And if there is no notation on the

6

form, the assumption would be that the detainee

7

was shackled during that period of time,

8

correct?

9

A. Yes.

10

Q. During what parts -- Strike that.

11

Under what circumstances would a guard

12

that was assigned to monitor or watch a

13

hospitalized detainee remove the shackles

14

during the course of a day?

15

A. If they were allowed to go to the

16

bathroom, they would remove the shackles from

17

the bedframe and then re-shackle both legs and

18

allow them to go to the bathroom; if they were

19

being moved for a test; if a doctor requested

20

it.

21

But before any of this happens, they

22

must notify the supervisor on duty unless it's

23

an emergency situation. And they would then

24

notify them via radio that they had an

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21

1

emergency.

2

Q. Would it be correct to state that the

3

practice of the Sheriff was before any shackle

4

was removed from a hospitalized detainee that

5

the guard that was watching the detainee would

6

have to seek the approval of a supervisor?

7

A. Other than life-threatening.

8

Q. By "life-threatening," what do you

9

mean?

10

A. A doctor said the cuffs or shackles

11

have to come off or this person is going to

12

die. That would be life-threatening.

13

Q. What was and is the practice in

14

regards to assigning a correctional officer to

15

guard a hospitalized detainee?

16

A. I don't understand the question.

17

Q. The question is: If a detainee was in

18

a hospital room, was there a practice and prior

19

to August of 2008, of having a guard assigned

20

to the room with the hospitalized detainee?

21

A. Yes.

22

Q. Would that correctional officer have a

23

gun?

24

A. Yes, sir.

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22

1

Q. In addition, would the hospitalized

2

detainee under all circumstances be shackled?

3

A. Yes, sir.

4

Q. Now, you mentioned that in addition to

5

the correctional officer assigned to the room,

6

that there would be supervisors that also would

7

be responsible for monitoring hospitalized

8

detainees, correct?

9

A. Yes, sir.

10

Q. And the supervisor would also sign the

11

External Operations daily reports, correct?

12

A. Yes, sir.

13

Q. During the course of each shift, would

14

a supervisor have to come into the hospital

15

room where a detainee is housed to ensure that

16

the guard was performing his duty?

17

A. Yes, sir.

18

Q. And would that supervisor make a

19

notation or sign the External Operations log

20

which is indicated by Exhibit 3?

21

A. Yes, sir.

22

Q. Now, in addition to the form, is it

23

the practice of correctional officers to make

24

notes during those shifts?

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23

1

A. Yes, sir.

2

Q. And are those notes kept in the

3

regular course of business by the Sheriff's

4

Office?

5

A. Yes, sir.

6

Q. Turning to page 2 of Exhibit 3, are

7

those notes made by the correctional officer

8

assigned to Simone Jackson on May 2nd, 2008?

9

A. Yes, sir.

10

Q. Do you know a Sergeant Roldan?

11

A. Roldan, yes, sir.

12

Q. Was Sergeant Roldan part of External

13

Operations?

14

A. Yes, sir.

15

Q. Is there a note on May 2nd, 2008, by

16

the correctional officer that he had contacted

17

Sergeant Roldan at 7:00 a.m. in the morning?

18

A. Yes, sir.

19

Q. And does it reflect that Ms. Jackson

20

was shackled and handcuffed?

21

A. Yes, it does.

22

Q. And was that pursuant to the practice

23

of the Sheriff?

24

A. Yes, sir.

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1

Q. And does it indicate that Ms. Jackson

2

is part of the MOMs program?

3

A. Yes, it does.

4

Q. And what is the Moms Program?

5

A. The Moms Program, to the best of my

6

knowledge, is a program that allows the inmates

7

from Division 3 to go to the Haymarket and seek

8

counseling and skills while they're there.

9

Q. Does the note also indicate that --

10

Strike that.

11

It's your understanding that people

12

that are assigned to the MOMs program from

13

Division 3 are either pregnant or have

14

delivered a child, correct?

15

A. Yes.

16

Q. Does this note at 7:00 a.m. in the

17

morning on May 2nd, 2008, indicate that the

18

patient, Ms. Jackson's water bag had broken --

19

water had broken?

20

A. Yes, it does.

21

Q. Now, as a Superintendent of External

22

Operations, looking at this note, would it

23

occur to you that Ms. Jackson was hospitalized

24

for the purpose of delivering a child?

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1

A. Yes.

2

Q. Now, there is a notation at 5:00 p.m.

3

in the afternoon on May 2nd, 2008, correct?

4

A. I'm sorry?

5

Q. There is a notation on Exhibit 3 at

6

5:00 p.m. on May 2nd, 2008, correct?

7

A. Yes.

8

Q. Now, would that notation have been

9

made by the correctional officer that was

10

assigned to guard Ms. Simone Jackson?

11

A. Yes.

12

Q. And at that time that would have been

13

Officer Fleming?

14

A. Yes.

15

Q. So Officer Fleming would have made

16

that note in the normal course of business of

17

the Sheriff, correct?

18

A. Yes, sir.

19

Q. Do you know a Sergeant Johnson?

20

A. Yes.

21

Q. And does it reflect that

22

Sergeant Johnson would have been Officer

23

Pemberton's supervisor, correct -- I'm sorry,

24

Officer Fleming's supervisor?

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1

A. That is correct.

2

Q. And again it reflects that Ms. Jackson

3

is in the MOMs program, correct?

4

A. Correct.

5

Q. And Sergeant Jackson is giving an

6

order that Ms. Jackson should be shackled and

7

handcuffed, correct?

8

A. At 5:00 o'clock, yes, sir.

9

Q. And that order by Sergeant Jackson --

10

Sergeant Johnson was following the practice and

11

procedure of the Sheriff's Office in regards to

12

shackling and handcuffing prisoners that were

13

hospitalized, correct?

14

A. That is correct.

15

Q. Now, there is another notation at 2014

16

which would be 8:14 in the evening, correct?

17

A. Yes, sir.

18

Q. And that notation is: Patient is in

19

active labor. Doctor issued for for shackles

20

to be removed. Notified Sergeant Johnson.

21

That notation would have been made by

22

Officer Fleming, correct?

23

A. Correct.

24

Q. And that would be pursuant to the

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1

standard practice and procedures of the Sheriff

2

again, correct?

3

A. Correct.

4

Q. Looking at the front side of

5

Exhibit 3, the form, there's no notation on

6

that form that the shackles, in fact, were

7

removed at 8:14, correct?

8

A. Correct.

9

Q. And there's no notation at 8:14 by

10

Officer Fleming that the shackles, in fact,

11

were removed at 8:14, correct?

12

A. That is correct.

13

Q. Is it the practice and procedure for a

14

correctional officer to notify his or her

15

supervisor that a doctor is asking for the

16

shackles to be removed?

17

A. Correct.

18

Q. Now, there is a notation at 12:30 a.m.

19

in the morning that the shackles were removed,

20

correct?

21

A. It says "Cuffs were removed."

22

Q. "Patient is in labor," correct?

23

A. Correct.

24

Q. At 11:00 p.m. there is a notation by

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1

the officer on duty that "Patient is in labor.

2

Per the doctor no shackle order is present in

3

envelope." What does "in envelope" mean?

4

A. For each patient or each inmate there,

5

we keep an envelope that keeps this type of

6

paperwork and any other pertinent paperwork in

7

that envelope that is eventually going to go

8

back to External Operations to be filed, so

9

that order would have been in that envelope.

10

Q. Let me clarify. So for each

11

hospitalized patient, there is an envelope

12

maintained by the Sheriff's Office?

13

A. An 8-by-11 manila envelope, yes.

14

Q. Looking at this record, would it

15

appear to you that the shackle -- the handcuffs

16

were removed for the first time at 12:30 a.m.

17

on May 3rd, 2008?

18

A. They were removed at that time. Were

19

they removed earlier? I couldn't say. It's

20

not documented.

21

Q. And there is a notation at the time

22

the baby was delivered at 12:40 a.m. on

23

May 3rd, 2008?

24

A. That is correct.

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1

Q. In May of 2008, for women that came to

2

the jail -- came to the hospital from the jail

3

who were pregnant, the standard practice of the

4

Sheriff's Office was to shackle the woman once

5

she reached the hospital room, correct?

6

A. Yes, sir.

7

Q. For a woman that was pregnant and was

8

brought to a hospital for purposes of

9

delivering a baby, the practice of the Sheriff

10

in May of 2008 was to keep the shackles on the

11

woman until the point that a medical doctor

12

ordered a correctional officer to remove the

13

shackles; is that correct?

14

A. That's correct.

15

Q. Looking at Exhibit 4 which is a

16

document for Simone Jackson, the External

17

Operations daily detainee hospitalization

18

checklist dated May 3, '08, is that again a

19

record that's kept in the normal course of

20

business?

21

A. Yes, sir.

22

Q. And it's a two-page document, isn't

23

it, Superintendent?

24

A. Yes, sir.

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1

Q. And there's a notation made on the top

2

of the second page of 5/3/08, "Per Sergeant

3

Roldan, inmate is to remained cuffed and

4

shackled while handling her baby"; is that

5

correct?

6

A. Yes, sir.

7

Q. In May of 2008, for a woman that had

8

delivered a child at a hospital who was in

9

custody, was it the practice and the policy of

10

the Sheriff to handcuff and shackle the woman

11

while she was handling her baby?

12

A. Yes, sir.

13

Q. In May of 2008, was it the practice

14

and policy of the Sheriff of Cook County to

15

shackle a woman while she was breast-feeding

16

her newly-born child?

17

A. Yes, sir.

18

Q. There is a notation at 11:25 a.m. that

19

Officer McLean and Officer Pemberton are

20

transporting inmate to the fourth floor OR for

21

a medical procedure; is that correct?

22

A. That is correct.

23

Q. While a patient is being transported

24

to the operating room for a surgery in May of

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1

2008, was it the practice and policy to have

2

that inmate shackled?

3

A. Yes.

4

Q. At 11:34 a.m. there is a notation on

5

Exhibit 4, "Per Sergeant Roldan, restraints

6

cannot be removed during surgery because inmate

7

will not be completely sedated"; is that

8

correct? Do you see that notation?

9

A. Yes, sir.

10

Q. Was it the practice and policy of the

11

Sheriff of Cook County to maintain restraints

12

on a woman or inmate during the course of

13

surgery if there was no order by a doctor?

14

A. If an inmate is going to be completely

15

sedated, the shackles and the restraints would

16

come off completely.

17

If you're having a minor surgery

18

procedure which still means you're not

19

completely sedated, yes, we would leave the

20

shackles and cuffs on you unless the doctor

21

gives us an order.

22

Q. In August of 2008 when you became

23

Superintendent of External Operations, did you

24

review the procedures involving shackling

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1

pregnant women who are hospitalized while an

2

inmate of the Sheriff?

3

A. Yes.

4

Q. At whose direction did you review the

5

procedures in regards to shackling pregnant

6

women in August of 2008?

7

A. My immediate director at the time was

8

Director Romero.

9

Q. Did you have a conversation with

10

Director Romero when you took command of

11

External Operations?

12

A. Yes.

13

Q. Who was present during the

14

conversation?

15

A. Just myself and him.

16

Q. Do you recall what date that

17

conversation --

18

A. No, sir, I don't.

19

Q. Do you recall it was in the month of

20

August of 2008?

21

A. It might have been September. I went

22

on vacation as soon as I got there, so I didn't

23

really --

24

Q. Are there any records in regards to

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1

when you were on vacation in 2008?

2

A. Yes.

3

Q. But, to the best of your recollection,

4

you were on vacation in August?

5

A. Yes, for just a week.

6

Q. Within four to five weeks of becoming

7

the commander -- or the Superintendent of

8

External Operations, you recall having a

9

conversation with Romero in regards to

10

shackling of pregnant women?

11

A. All the policies. We sat down with

12

all the policies.

13

Q. And Director Romero is one of the

14

assistant directors to the executive directors?

15

A. Yes, sir.

16

Q. And specifically in regard -- What

17

policies of External Operations did you discuss

18

with Director Romero?

19

A. All of them. The policy is to review

20

these once per year.

21

Q. As a result of your conversations with

22

Director Romero, did you cause any of the

23

policies for External Operations to change?

24

A. Minor changes in different policies.

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1

I can't remember exactly which ones. We

2

actually wrote some policies pertaining to

3

something other than the hospital with some of

4

the newer equipment we were using.

5

Q. Were there any written changes in

6

regards to women that were pregnant and

7

hospitalized?

8

A. Not by us.

9

Q. Were there any written changes by

10

anybody within the Sheriff's Office after you

11

assumed command of External Operations?

12

A. The Women's Justice Program.

13

Q. Is the Women's Justice Program part of

14

the Sheriff's Office?

15

A. Yes, sir.

16

Q. Is there a woman by the name of

17

Ms. McDermott that is in charge of the Women's

18

Justice Department?

19

A. Yes, sir.

20

Q. After you became head of External

21

Operations, did you have any conversations with

22

Ms. McDermott in regards to pregnant women who

23

are hospitalized?

24

A. No, I did not.

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1

Q. Did Ms. McDermott make any changes

2

while you were head of External Operations in

3

regards to pregnant women that are

4

hospitalized?

5

A. I'm not sure if she did. I -- One of

6

her assistants might have.

7

Q. What changes were made by either

8

Ms. McDermott or one of her subordinates in

9

regards to hospitalized pregnant women?

10

A. They no longer had us sitting on the

11

females from the MOMs program.

12

Q. Now, when you say "sitting," what do

13

you mean?

14

A. We were no longer part of being

15

security for them. "Us" being External

16

Operations.

17

Q. Was that a decision made by -- Strike

18

that.

19

As the Superintendent of External

20

Operations, you have specific command and

21

responsibility for all inmates that are housed

22

outside of the jail compound, correct?

23

A. Yes.

24

Q. And the Women's Justice Department

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1

does not have responsibility in regards to

2

providing security and custody of detainees

3

that are housed off of the Cook County Jail

4

compound, correct?

5

A. I'm not sure what their policies are

6

now. I don't know their policies, to be honest

7

with you.

8

And I need to strike the last

9

statement because actually DCSI, I do believe,

10

sits on their own inmates at the hospital, as

11

well.

12

Q. What is DCSI?

13

A. Department of Community Supervision

14

and Intervention is the pre-release program,

15

the day reporting program, and the home

16

monitoring program; so I would not sit on their

17

inmates either.

18

Q. But those are -- But you received an

19

order sometime after August of 2008 from the

20

Women's Justice Department that women that were

21

assigned to the MOMs program were not to be --

22

that External Operations was not to provide

23

security?

24

A. That is correct.

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1

Q. Now, that was just specifically to

2

women that were part of the MOMs program,

3

correct?

4

A. Correct.

5

Q. So that you continued to have

6

responsibility over women that came from

7

Division 3 in the course of their pregnancy and

8

were hospitalized, correct?

9

A. That is correct.

10

Q. In regards to after August of 2008,

11

you stated that External Operations would no

12

longer provide security for women that were in

13

the MOMs program that were hospitalized for

14

purposes of delivering a child, correct?

15

A. Correct.

16

Q. Was there any other branch of the

17

Sheriff's Office that provided security for

18

women that were hospitalized after August of

19

2008 for the purposes of delivering a child?

20

A. For the Women's Justice Program?

21

Q. Do you understand my question?

22

A. No.

23

Q. In August of -- Sometime after August

24

of 2008, you're not sure specifically, correct?

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1

A. Correct.

2

Q. You don't have an exact date. It

3

could have been September or October of 2008

4

that External Operations no longer provided

5

security for women that were hospitalized from

6

the MOMs program?

7

A. It was in October of '08.

8

Q. So you're sure it was in October of

9

'08?

10

A. Yes, sir.

11

Q. After October of 2008, to your

12

knowledge, was any other division within the

13

Sheriff's Office responsible for providing

14

security for women from the MOMs program that

15

were hospitalized for the purposes of

16

delivering a child?

17

A. I don't know.

18

Q. Did you raise any concerns as the

19

External Operations superintendent in regards

20

to the security risk of not having a

21

correctional officer sitting at the bed of a

22

hospitalized female after 2008, that she may be

23

a flight risk?

24

A. No, sir.

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1

Q. Was it your responsibility, to your

2

knowledge, as the External Operations chief, to

3

provide security for all detainees that are

4

housed outside of the Cook County Department

5

of Corrections?

6

A. No, sir.

7

Q. Did you raise any concerns after

8

October of 2008 that your unit, External

9

Operations, was not providing security for

10

these women from the MOMs program that were

11

hospitalized for the purposes of delivering a

12

child?

13

A. No, sir.

14

Q. Did you personally have any concerns

15

that women from the MOMs program that were

16

hospitalized for the purpose of delivering a

17

child were a flight risk?

18

A. No, sir.

19

Q. Did you personally believe that there

20

was a penological reason after October of 2008

21

to have these women shackled that were in the

22

MOMs program and were hospitalized for the

23

purpose of delivering a child?

24

MR. WEIDHUNER: I'm going to object to

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1

that question. It calls for his particular,

2

what would you say, opinion. And this 30(b)(6)

3

is not for his opinion but for the policies,

4

practices, and customs of the Sheriff.

5

MR. MORRISSEY: Okay.

6

BY THE WITNESS:

7

A. I didn't care.

8

BY MR. MORRISSEY:

9

Q. In August of 2008 when you were --

10

Strike that.

11

After October of 2008 for women that

12

were assigned to the MOMs program and

13

hospitalized for the purposes of delivering a

14

child, was it your understanding that not only

15

a correctional officer is not assigned to the

16

room but also that the women were not shackled?

17

A. After?

18

Q. After October of 2008.

19

MR. WEIDHUNER: You're talking about

20

the MOMs now?

21

MR. MORRISSEY: Yes. Let me shorten

22

the question.

23

MR. WEIDHUNER: Okay.

24

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1

BY MR. MORRISSEY:

2

Q. After October of 2008 for women that

3

were assigned to the MOMs program that were

4

hospitalized for purposes of childbirth, were

5

they shackled?

6

A. I don't know.

7

Q. In August of 2008, what reason were

8

women that were assigned to the MOMs program,

9

what reason did you assign a guard to watch

10

women that were assigned to the MOMs program

11

that were hospitalized for the purpose of

12

delivering a child?

13

A. They were -- We were instructed by the

14

receiving and/or records department that this

15

was our inmate. "Ours" being the Department of

16

Corrections. And when it's a Department of

17

Corrections inmate, we follow the procedures

18

that we have for a Department of Corrections

19

inmate.

20

Q. Who instructed you from the RCDC that

21

a woman that was in the MOMs program in August

22

of 2008 who was hospitalized for the purpose of

23

delivering a child needed to be shackled?

24

A. Whoever took that information. We

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1

have hospital takeovers all the time. It

2

happens every day and we always get information

3

from a different records officer that this is

4

now our prisoner. We are to send an officer on

5

that prisoner.

6

Q. What type of log do you maintain in

7

regards to -- log from the -- concerning

8

information from the records office or the RCDC

9

that External Operations is to take over the

10

information for a hospitalized detainee?

11

A. That information should be in the

12

External Operations shift commander's office in

13

a logbook.

14

Q. Would it be correct to state that

15

after October of -- strike that -- that from

16

the time you became External Operations chief

17

in August of 2008 to the time you left, that

18

the procedures and practices in regards to

19

women that came from Division 3 to the hospital

20

who were brought to the hospital for purposes

21

of delivering a child remained the same?

22

A. Correct.

23

Q. During the time you were External

24

Operations superintendent from August of 2008

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1

up to you said May of 2009?

2

A. Yes, sir.

3

Q. If a woman from Division 3 was brought

4

to a hospital for the purpose of childbirth, a

5

correctional officer would be assigned to her

6

room, correct?

7

A. Correct.

8

Q. And the correctional officer would

9

have a gun, correct?

10

A. Yes.

11

Q. The woman from Division 3 that is

12

pregnant and was brought to the hospital for

13

purposes of childbirth would be shackled in a

14

room, correct?

15

A. Correct.

16

Q. And her leg -- one leg would be

17

shackled to the bed, correct?

18

A. Yes, sir.

19

Q. And a hand would be shackled to the

20

bed?

21

A. Cuffed to the bed.

22

Q. Cuffed to the bed?

23

A. Yes, sir.

24

Q. The guard that's sitting in the room,

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1

the armed guard that's sitting in the room,

2

under the practice and policy of the Sheriff

3

would be required to shackle the female to her

4

bed, correct?

5

A. Yes.

6

Q. The female who was pregnant and at the

7

hospital from Division 3 for purposes of giving

8

birth would remain shackled pursuant to the

9

practice of the Sheriff up until the point

10

there was a direction from a doctor, correct?

11

A. Yes.

12

Q. If and when a medical doctor

13

instructed the guard assigned to the hospital

14

room to remove the shackles, there would be a

15

practice of -- Strike that. Let me shorten it.

16

MR. WEIDHUNER: Why don't you, because

17

this has all been asked and answered, Tom.

18

BY MR. MORRISSEY:

19

Q. For a woman that's in Division 3

20

that's hospitalized, the guard upon notice or

21

an order -- receiving an order from a doctor

22

would have to contact his or her supervisor in

23

regards to the doctor's order to remove the

24

shackles, correct?

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1

A. Yes.

2

Q. Only after the guard received approval

3

from his or her supervisor would the guard then

4

remove the shackles from the woman in

5

Division 3 that is hospitalized for purposes of

6

delivering a child?

7

A. Unless it was an emergency.

8

Q. As the Rule 30(b)(6) designated

9

deponent, you're here to -- As the

10

Rule 30(b)(6) deponent, do you know whether or

11

not the procedures have changed at all since

12

you left External Operations in May of 2009

13

concerning the shackling of pregnant women from

14

Division 3 at the hospital?

15

A. I don't know.

16

Q. Currently who is the Superintendent of

17

External Operations?

18

A. Thomas Snooks.

19

Q. How do you spell his name?

20

A. S-n-o-o-k-s.

21

Q. Do you personally know how many women

22

from Division 3 gave birth to children during

23

the period from August of 2008 up to May of

24

2009?

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46

1

A. No, I do not.

2

Q. Now, in regards to Division 3, when a

3

woman from Division 3 was transported to the

4

hospital to give birth to a child, officers

5

from External Operations would accompany the

6

woman, correct?

7

A. Yes.

8

Q. To your knowledge, normally would the

9

woman be transported in an ambulance, if she

10

was being transported from Division 3 to a

11

hospital for the purpose of giving birth to a

12

child?

13

A. Yes.

14

Q. How many correctional officers from

15

Division -- How many correctional officers from

16

External Operations would be assigned to

17

transport a woman from Division 3 when she was

18

being transported to the hospital to give birth

19

to a child?

20

A. One officer in the ambulance,

21

two officers in a squad car following.

22

Q. The practice and policy of the Sheriff

23

from August 2008 to the present in regards to

24

women from Division 3 that are transported to

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47

1

the hospital for purposes of giving birth to a

2

child is to shackle the woman while she's being

3

transported?

4

A. Yes.

5

Q. In regards to women that are in

6

Division 3 that are transported to a hospital

7

for purposes of giving birth to a child, how

8

were they shackled in the ambulance?

9

A. To the bed that they're usually put on

10

and brought in. They would be shackled to part

11

of the metal bed as well as cuffed, and that

12

was depending on the type of condition she was

13

in. It would be up to the medical staff to

14

tell us what we can and can't do.

15

Q. In the absence of any direction from

16

the medical staff, the practice of shackling of

17

a woman from Division 3 to the hospital was

18

what? How was --

19

A. They were shackled to the bed,

20

bedframe. They were cuffed to the bedframe.

21

Q. When a woman from Division 3 is

22

transported to the hospital for purposes of

23

giving birth to a child, what type of

24

restraints are used once the female in

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48

1

childbirth arrives to the hospital?

2

A. The same.

3

Q. Can you tell me specifically?

4

A. Shackles and cuffs.

5

Q. In the emergency room?

6

A. Yes, sir.

7

Q. If the woman who was being trans- --

8

who was transported from Division 3 for the

9

purposes of giving birth to a child, to a

10

hospital, enters the emergency room, she is

11

shackled, correct?

12

A. Yes, sir.

13

Q. If that same woman is removed from the

14

emergency room and transferred to a labor and

15

delivery room, is it the practice of the

16

Sheriff to shackle the woman while she is

17

transported from the emergency room to the

18

labor and delivery room?

19

A. If the doctor said she's in labor,

20

they're removed. If the doctor does not tell

21

us that she's in labor, they remain on.

22

Q. Just to clarify. So unless the

23

medical doctor gives an order to the

24

correctional officers that the woman is in

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49

1

labor, the normal practice and procedure for

2

the Sheriff is to maintain the shackles on a

3

woman when she's moved from the emergency room

4

to the labor and delivery room?

5

A. Yes, sir.

6

Q. Is it also the practice and policy

7

once the woman from Division 3 is placed in the

8

labor and delivery room to secure the woman to

9

the hospital bed with shackles?

10

A. Yes.

11

Q. And for a woman in Division 3 after

12

she is placed in the labor and delivery room,

13

the shackles remain on that woman up to the

14

point in which a doctor issues a written order

15

or oral order that the shackles should be

16

removed?

17

A. Yes.

18

Q. Once a doctor issues an order to

19

remove the shackles, the shackles remain on the

20

woman until the guard's supervisor authorizes

21

the removal of the shackles, correct?

22

A. Yes.

23

Q. And it's the practice and procedure of

24

the Sheriff that once a child is delivered,

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50

1

that the shackles are re-placed on the woman?

2

A. If we're able to, if there's no

3

medical reasons, yes.

4

Q. And after the birth of a child, either

5

for a woman that was in the MOMs program or --

6

Well, strike that.

7

After the birth of a child for a woman

8

that was previously housed in Division 3, it is

9

the practice and the policy to have the woman

10

shackled during all times when she was

11

hospitalized?

12

A. Yes, sir.

13

Q. And for a woman in Division 3

14

during -- after she delivers a child, the

15

shackles remain on the woman while she is

16

breast-feeding the child?

17

A. Yes, sir.

18

MR. MORRISSEY: May I have a moment.

19

(Brief pause.)

20

BY MR. MORRISSEY:

21

Q. During that time you were the External

22

Operations supervisor -- superintendent, did

23

you receive any notice of any woman that was

24

hospitalized for purposes of delivering a child

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51

1

attempting to escape?

2

A. No, sir.

3

Q. During the time you were the External

4

Operations superintendent, did you receive any

5

notice or report that a woman that was assigned

6

to the MOMs program attempted to escape?

7

A. No, sir.

8

Q. Where are the External Operations

9

daily detainee hospitalization checklists kept?

10

Where are the records kept?

11

A. They're in a supply room in the South

12

Campus of the Sheriff's Department.

13

Q. Are those records kept under the

14

custody and control of the External Operations

15

Division?

16

A. Yes, sir.

17

Q. And that would be at 26th and

18

California?

19

A. It's actually at about 31st and

20

California.

21

Q. For what period of time, to your

22

knowledge, are those External Operations

23

checklist records maintained?

24

A. I'm not sure how many years they go

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52

1

back. I really don't know.

2

Q. When you were superintendent, did you

3

have access to those records?

4

A. Yes.

5

Q. And could you access the records for

6

the previous six months within a matter of a

7

day?

8

A. It would take a couple officers a few

9

days to go through it. They're boxed up in a

10

room down in the basement.

11

Q. Are they boxed up on a daily basis?

12

Are they run consecutively for --

13

A. Monthly basis.

14

Q. So if I asked you to pull the -- or

15

have somebody from your department pull the

16

External Operations checklist for a specific

17

individual that was hospitalized in the year

18

2008, that record could be obtained in a matter

19

of days?

20

MR. WEIDHUNER: I'm going to object at

21

this point. This has nothing to do with what

22

we are here for. Don't answer. And if you

23

keep it up, we're going to terminate the dep.

24

MR. MORRISSEY: I have nothing

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53

1

further.

2

CROSS-EXAMINATION

3

BY MR. WEIDHUNER:

4

Q. I'm going to ask you as to Exhibit

5

Number 2 which was the general order that was

6

effective October '08, page 3 of 8, D, "Labor

7

and Delivery Room." Sentence Number 1: In

8

accordance with Illinois Statute 730 ILCS

9

125/17.5 (Pregnant Female Prisoners) No

10

handcuffs, leg irons, or waist chains shall be

11

used on a female inmate (detainee) who is in

12

labor, this includes while being been

13

transported to the medical facility, what does

14

all that mean to you?

15

A. That means to me that if a doctor told

16

me that the inmate was in labor, we would not

17

use any restraints whatsoever.

18

Q. Now, we were talking a lot of times of

19

taking an inmate, a pregnant female from

20

Division 3, to the hospital to deliver this

21

baby. Do you know, would External Ops go to

22

Division 3 to pick them up or Cermak to pick

23

them up?

24

A. Cermak.

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54

1

Q. Do you recall of any instance where

2

you had to actually go to Division 3 and pick

3

up an inmate from there?

4

A. No, sir.

5

Q. In regards to Exhibits 3 and 4, in

6

regards to the officer's notes, are these just

7

a summary of what happens or is this supposed

8

to be word for word what an officer did on his

9

shift?

10

A. It is a summary of what happened.

11

Q. So when a doctor says take off the

12

cuffs and your officer calls his supervisor but

13

yet it doesn't say the cuffs were removed, can

14

we assume that the cuffs were removed or the

15

shackles were removed?

16

MR. MORRISSEY: I'm going to object.

17

I don't know if he has any personal knowledge.

18

BY MR. WEIDHUNER:

19

Q. If you know from your own personal

20

knowledge?

21

A. That, I wouldn't know.

22

Q. There was a note on Exhibit 4 of

23

5/3/08 of Simone Jackson at 11:34: Per

24

Sergeant Roldan restraints cannot not be

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55

1

removed during surgery because inmate will not

2

be completely sedated.

3

Do you remember saying yes to the --

4

A. Yes.

5

Q. At 11:40 hours, per sergeant Roldan

6

after receiving an okay, soft restraints can be

7

used. Metal restraints can be taken off after

8

soft restraints are in place. Arms and legs,

9

initials R.M.

10

A. Yes, sir.

11

Q. Who is R.M.?

12

A. I don't know. It could have been the

13

officer that was actually on duty. I'm

14

assuming it was R. McLean.

15

Q. Do you know how to spell McLean's

16

name?

17

A. It might be McLean or McClendon. I'm

18

looking -- It's a very poor -- I do believe it

19

is Officer McClendon.

20

Q. And that's looking at the 11:25 hours

21

entry?

22

A. Yes. It's a poor signature, but it is

23

McClendon. We do have a McClendon in that

24

office.

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56

1

Q. So in a nutshell, I think we can sum

2

up the policy as keep them shackled and cuffed

3

unless told by a doctor to remove them?

4

A. Yes, sir.

5

MR. WEIDHUNER: Nothing else.

6

MR. MORRISSEY: I have just a few

7

brief follow-ups.

8

REDIRECT EXAMINATION

9

BY MR. MORRISSEY:

10

Q. Now, women that are assigned to

11

Division 3, to your knowledge, have some type

12

of medical need, correct?

13

A. No.

14

Q. If you know?

15

A. No, they do not.

16

Q. Cermak is part of Division 8, correct?

17

A. Yes, sir.

18

Q. And Division 8 includes Division 3,

19

correct?

20

A. No. They are close but they're not

21

the same buildings.

22

Q. No, I'm not saying physically, but the

23

same superintendent from the Sheriff's Office

24

that's is in charge of Division 8 is also in

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57

1

charge of Division 3?

2

A. That is correct.

3

Q. And when I asked you those series of

4

questions about women that go to the hospital

5

from Division 3, you understood that I meant

6

that they either went physically from

7

Division 3 or from Cermak Hospital to a

8

hospital facility delivering a child, correct?

9

A. All females would leave from Cermak,

10

yes.

11

Q. So all women that were pregnant

12

generally would leave from Cermak when they

13

were going to the hospital for purposes of

14

delivering a child, correct?

15

A. Yes, sir.

16

Q. So my question just briefly is: When

17

a woman was taken from Cermak and formally

18

assigned to Division 3 and transported by

19

External Operations, she would have been

20

shackled during transport by officers from

21

External Operations, correct?

22

A. Yes, sir.

23

Q. And the same would be true that once

24

she got to the hospital, Stroger or Mount

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58

1

Sinai, that women that came from Cermak; i.e.,

2

Division 3, were shackled in the emergency

3

room, correct?

4

A. Yes.

5

Q. And the same would be true that if a

6

woman was assigned in Division 3 that came from

7

Cermak to the hospital and later was

8

transported to the labor and delivery room, she

9

would have remained shackled, correct?

10

A. Yes.

11

Q. And that a woman from Division 3 who

12

left the jail from Cermak would remain shackled

13

while she was hospitalized until the Sheriff's

14

Office received an order from a medical doctor

15

that the shackles should be removed?

16

A. Correct.

17

MR. MORRISSEY: I have nothing

18

further.

19

MR. WEIDHUNER: Nothing else.

20

MR. MORRISSEY: Thanks a lot.

21

THE COURT REPORTER: Signature?

22

MR. MORRISSEY: Don, signature?

23

MR. WEIDHUNER: Do you want to waive

24

your signature? The only thing we can change

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59

1

is waive spellings and typos.

2

THE WITNESS: I'll waive it.

3

MR. MORRISSEY: Show signature waived.

4

(WHEREUPON, at 11:50 a.m. the

5

deposition was completed and

6

the witness was excused.)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

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60

1

STATE OF ILLINOIS )

) SS:

2

COUNTY OF C O O K )

3

I, KATHLEEN P. LIPINSKI, a Notary

4

Public within and for the County of Cook, State

5

of Illinois, and a Certified Shorthand Reporter

6

of said state do hereby certify:

7

That previous to the commencement of

8

the examination of the witness, the witness was

9

duly sworn to testify the whole truth

10

concerning the matters herein;

11

That the foregoing deposition

12

transcript was reported stenographically by me,

13

was thereafter reduced to typewriting under my

14

personal direction, and constitutes a true

15

record of the testimony given and the

16

proceedings had;

17

That the said deposition was taken

18

before me at the time and place specified;

19

That the said deposition was adjourned

20

as stated herein;

21

That I am not a relative or employee

22

or attorney or counsel, nor a relative or

23

employee of such attorney or counsel for any of

24

the parties hereto, nor interested directly or

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61

1

indirectly in the outcome of this action.

2

IN WITNESS WHEREOF, I do hereunto set

3

my hand and affix my seal of office at Chicago,

4

Illinois, this 10th day of July, 2009.

5

6

7

8

9

10

_________________________________

11

KATHLEEN P. LIPINSKI, CSR

12

13

14

15

16

17

18

CSR 084-003808

19

20

21

22

23

24

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Exhibit 6

Case: 1:08-cv-06946 Document #: 46 Filed: 09/14/09 Page 162 of 175 PageID #:461

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

ROBERT JACKSON, JOSEPH McGRATH, and DERRELL SMITH
Plaintiffs,
v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS and DIRECTOR, CERMAK HEALTH SERVICES,
Defendants.

) ) ) ) ) No. 06 C 0493 ) ) HONORABLE DAVID H. COAR ) ) ) ) )

MEMORANDUM OPINION AND ORDER Now before this court is the Motion to Certify Plaintiff Class filed by plaintiffs Robert Jackson (“Jackson”), Joseph McGrath (“McGrath”), and Derrell Smith (“Smith”) (collectively “Plaintiffs”) against Defendants Sheriff of Cook County (“Sheriff”), Cook County of Illinois (“Cook County”), and Director of Cermak Health Services (“Cermak”) (collectively “Defendants”). For the reasons set forth below, Plaintiffs’ motion for class certification is GRANTED.
BACKGROUND1 The instant Plaintiffs were admitted to the Cook County Jail as pre-trial detainees at varying dates,2 where they were allegedly forced to undergo a screening test for sexually

1For the purposes of this motion, Plaintiff’s well-pleaded allegations are taken as true. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974).
2Jackson was admitted on February 4, 2004, McGrath on December 27, 2005, and Smith on July 20, 2004.
-1-

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transmitted disease (“STD screening”). Though some details of their accounts vary, the general process was the same in all cases. Upon arriving at the jail, Plaintiffs signed medical release forms and questionnaires as part of the admission procedure. One of these forms contained a “Consent for Treatment” decree, apparently signed by all three putative representatives, that read as follows:
I consent to a medical and mental health history and physical including screening for tuberculosis and sexually transmitted diseases as part of the intake process of the Cook County Jail....[signed by prisoner]. See Resp. to Cert. Mot. Ex. A at 18, Ex. B at 16, Ex. C at 17. All admitted prisoners were lined up to enter an examination room within the medical intake area. Once inside, a medical technician from Cermak Health Services asked the prisoners to lower their pants. The technician would then insert a cotton swab into the tip of each prisoner’s penis, apparently in order to collect a tissue sample for testing.3 At all times, jail deputies were nearby, though it is not entirely clear where they were usually stationed with respect to the examination area.4 On January 27, 2006, Plaintiff Jackson filed a complaint alleging violation of his constitutional rights under the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983. The Complaint was amended on January 31, 2006 to include additional Plaintiffs McGrath and Smith, and corrected on February 1, 2006. Plaintiffs in this case have now filed a motion for class certification. The putative plaintiff class consists of “[a]ll male prisoners at the Cook County Jail who, on and after January 27, 2004, was [sic] subjected to the non-consensual
3The particulars of this particular point in the process vary, as some accounts claim that: the swabbing was done over a garbage can; the technician failed to change his glove before administering the test to subsequent prisoners; and that either the prisoner held his own penis during the procedure or his penis was held by the technician.
4See, e.g., Smith Dep. at 51 (placing the guard in the doorway of the room). -2-

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insertion of a swab into this penis as part of his admission to the jail.” Cert. Mot. at 1. In
support of their motion to certify the class, Plaintiffs have submitted fourteen (14) “Sworn
Declarations” from men who had been admitted into the Cook County Jail.5 See Cert. Mot., Ex.
1. These declarations rely upon roughly identical text to state their support of the class and the
declarant’s potential membership in it:6
The undersigned, under penalties of perjury, certifies that the following statement are [sic] true: 1-2. [summary of individual’s biographical information, including
name, date of admission, CIMIS number, and age at the time] 3. On admission to the Cook County Jail, I was subjected to a
procedure which I understand to be known as the insertion of a urethral swab into my penis. 4. I did not consent to this procedure [and tried to refuse]. 5. I would not have agreed to undergo this procedure if I had been given a choice. 6. The procedure was painful and an embarrassing intrusion into a private part of my body. 7. I was in pain for [___] day(s) after the procedure. 8. The person who performed the procedure held my penis with his hand while inserting the swab. Id.

5These declarations were made by: Kamal J. Davis, Troy O. Hampton, Lawrence A. Howard, Crasseros Jackson, Jerome Johnson, Thomas Kelly, Sylvester Kimbrew, Larry E. Lawson, Kevin McDuffie, Calvin K. Odisho, Vincent D. Papaccio, Leonard Pitman, Michael Rodriguez, and John O. Williams.
6Bracketed language indicates wording that varied from one declaration to another, or which was absent from one or more of the declations.
-3-

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LEGAL BACKGROUND The federal Rules of Civil Procedure provide the federal district courts with broad discretion to determine whether certification of a class-action lawsuit is appropriate. Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998). When evaluating a motion for class certification, the court accepts as true all well-pleaded allegations made in support of certification. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974); Hardin v. Harshberger, 814 F.Supp. 703, 706 (N.D.Ill. 1993). The party seeking class certification bears the burden of showing that the requirements for the class certification have been met. Carlisle, 417 U.S. at 179; see also Patterson v. Gen. Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), cert. denied, 451 U.S. 914 (1981). Failure to establish any one of the requirements precludes class certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584 (7th Cir. 1993). Rule 23 of the Federal Rules of Civil Procedure governs the requirements of class certification. Under that rule, deciding a motion for certification requires a two-step analysis. First, the named plaintiff must satisfy the four threshold pre-requisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Second, the action must qualify under one of the three subsections of Rule 23(b); in this instance, the Plaintiffs seek to qualify under 23(b)(3), meaning they must establish that questions common to all members of the class predominate and that a class action would be the most effective approach to resolving the matter. In order to determine whether or not these criteria have been met, it is not appropriate to examine the substantive merits of the case itself. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (finding that the court deciding certification has no “authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether

-4-

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it may be maintained as a class action”). Nonetheless, it is necessary to “make a ‘preliminary inquiry...that has as its focus not the substantive strenth or weakness of the plaintiffs’ claims but rather the merits of those allegations that bear on the suitability of a case for class treatment under Rule 23(a) and (b).’” Rahim v. Sheahan, 2001 WL 1263493 at *10 (N.D.Ill. Oct. 19, 2001) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)).
ANALYSIS Because the Plaintiff have met all of the prerequisites of 23(a), as well as the criteria of 23(b)(3), their motion for class certification is GRANTED.
Numerosity Rule 23(a)(1) is satisfied if “the class is so numerous that joinder of all members is impracticable.” This places a positive burden on the party seeking to certify the class to show that there are enough class members that it would not make sense to bring them all into court. Plaintiffs are not required to specify the exact number of class members. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978). An approximation of the proposed class size can be based on common-sense assumptions and estimates. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (D. Ill. 1996). However, failure to provide an estimate, or means for making such an estimate, can prove fatal to a certification motion. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) (holding that plaintiffs “cannot rely on conclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity”) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)). While there is no set minimum number of plaintiffs required for class certification, Courts have generally recognized that joinder is impracticable where a class contains more than 40 members. Johnson v. Rohr-Ville Motors, Inc., 189 F.R.D.

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363, 368 (D. Ill. 1999) (citing Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969).
Defendants are correct that Plaintiffs have not given this Court a definite idea of how many members its putative class will contain. At present, it is only clear from the record that seventeen current or former prisoners have a potential claim against Defendants; the three named Plaintiffs and the additional fourteen declarants.7 While the definiteness of the total number of class members is a factor to consider in weighing considerations for or against certification, in this instance it is nonetheless clear that the putative class will be sufficiently large. As Plaintiffs previously stated, the alleged “invasive procedure has been applied to more than one thousand persons from January 27, 2004 to the present.” Cert. Mot. at at 1. The class will likely expand to include nearly all prisoners admitted into the Cook County Jail within the Plaintiffs’ proposed temporal range. Though somewhat variable due to prisoners who opt out, or unusual cases in which the roughly standardized procedures were not applied, it is clear that this putative class is sufficiently numerous for determining that certification would be more efficient than resolution through joinder or multiple legal actions.8

7Defendants maintain that because the supporting declarations use boilerplate language their veracity as personalized accounts is suspect and they should not be given significant weight. However, repeated language does not prove that the experience was not common to all of these declarants, and there was in fact some effort to individualize the declarations, e.g., the medical technician's approach, or the number of days of pain following the procedure, differed from one account to another.
8 Plaintiffs’ fourteen declarations were collected by contacting only three days’ worth of prisoners admitted into the Cook County Jail. Cert. Mot. at 2-4; Resp. to Cert. Mot. at 5. Even if class membership were limited to prisoners who sign such a declaration, Plaintiffs have thus far gained an average of 4b additional members for every considered day of admission into the jail. The proposed definition of the class, which would cover all prisoners admitted since January 27, 2004, would cover hundreds of days, and would therefore provide the requisite
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Defendant maintains that a mailing was sent to all prisoners currently held in the Cook County Jail system. Plaintiffs admit that this is true. Reply in Supp. of Cert. Mot. at 4 . Defendant also argues that Plaintiffs have had adequate time to seek out declarants regarding the typicality of the allegations and have only had limited success in their efforts. Resp. to Cert. Mot. at 5. However, Plaintiffs failure to more definitely determine the ultimate size of the class, despite their time and effort, is not terminal. As stated above, this class action will likely include a large majority of prisoners who have had the screening process applied to them, and a sufficiently high number of class members to warrant the greater efficiency of the class action process. Because enough information has been provided to make this determination, Plaintiffs have relied on more than mere “conclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity.” See Marcial, 880 F.2d at 957. Rather, they have provided adequate information from which a large, if indefinite, number of class members can be discerned.
Commonality/Typicality9 Rule 23(a)(2) calls for the "existence of at least one issue of fact or law common to all class members." Meiresonne v. Marriott Corp., 124 F.R.D. 619, 622 (D. Ill. 1989). "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2),” id., and under the rule the existence of some factual variation among class members will not defeat a class action, Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992).

numerosity.
9These two criteria are often analyzed together, see Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992), as this Court now does.
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Plaintiffs assert that there are several common questions of fact or law, namely: Is the procedure undertaken without consent? And, if so, is consent required by the Fourth and/or Fourteenth Amendments? Does the Procedure violate rights secured by the Fourth and/or Fourteenth Amendments? Is the manner in which the procedure is performed reasonably calculated to spread disease and, if so, is this a violation of rights secured by the Fourth and/or Fourteenth Amendments?
Pl.’s Cert. Mot. at 4-5. While there are some factual discrepancies among members of the putative plaintiff class, there are nonetheless common issues of fact and law to justify class certification.
Defendants rely too much on select factual determinations that might bary on a case-bycase basis, and which in some way might affect the screening process for individual putative class members. Rather than seeking to establish that the prisoner consent was valid in some instances and invalid in others, Plaintiffs maintain that, as a rule, the manner in which the screening process is conducted precludes valid consent: “Plaintiffs intend to show in their impending motion for summary judgment that the totality of circumstances at the receiving unit makes it impossible for anyone to give a valid consent to the insertion of the urethral swab.” Pl.’s Reply in Supp. of Class Cert. at 11. This framing of the issue effectively shifts the debate toward questions that are resolvable without delving into an individualized analysis of minor factual discrepancies. See, e.g., Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 (7th Cir. 2006) (upholding class certification despite member differences because the answers to the distinguishing question – the presence or absence of a firm offer – were not dispositive of the ultimate legal determinations).

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Similarly, the class definition satisfies the demands of Rule 23(a)(3), which requires that the claims of the class representatives be typical of those of other class members. A typical claim arises “from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Further, “similarity of legal theory may control even in the face of different facts.” Id. Here, the underlying factual basis was the same for all prisoners admitted to the Cook County jail; they were all admitted and screened, and a variety of different factors may or may not have combined to invalidate the boilerplate consent that they gave. The legal argument that comes out of this is that the prisoners’ constitutional rights under the Fourth and/or Fourteenth Amendments were violated. Despite minor difference in how the underlying process was executed, this indeed suffices to establish that all prisoners that underwent this screening share a common nucleus of facts, and that the Plaintiffs’ legal theory would carry over to any of them.
Representativeness Rule 23(a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” This inquiry is generally broken into two component parts: (1) whether Plaintiff's counsel possesses the sufficient qualifications and experience to litigate a class action lawsuit in federal court; and (2) whether Plaintiff has interests that are antagonistic to or in conflict with those of other class members. Defendant has not challenged the general adequacy of counsel in this case, and this Court sees no reason to doubt that it is adequate. Defendant does raise a question about the techniques used by Plaintiffs’ counsel in finding their clients in this instance. Resp. to Cert. Mot. at 4.

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However, this is unavailing – whether or not Plaintiffs were fully aware of their constitutional protections before they were approached by Mr. Flaxman and Mr. Morrissey has little to do with counsel’s ability to zealously advocate for the entire class from this point forward.
In addition, there is nothing to indicate that the Plaintiffs’ interests will be “antagonistic to those of the rest of the class.” While Defendants make a great deal out of the Second Circuit’s choice to consider Plaintiffs’ credibility of individuals, Resp. to Cert. Mot. at 8-9, they have not advanced evidence of dishonesty that would make this Court question their ability to stand as class representatives. Defendants’ suggestion that McGrath’s status as an “admitted heroin addict” should make his credibility “highly suspect” is not convincing, see Resp. to Cert. Mot. at 9, particularly where class membership is made up entirely of prisoners, many of whom have a history of criminality and/or drug abuse.
Predominance of Common Questions Rule 23(b)(3), which provides the grounds for Plaintiffs’ motion, requires that “questions of law 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.” Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997). “The matters pertinent to the finding [under Rule 23(b)(3)] include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action.” Fed. R. Civ. P. 23(b)(3). In considering these

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requirements, “the court must review the substantive elements of plaintiffs’ cause of action, the proof necessary for the various elements and the manageability of the trial on these isuses.” Rodriguez v. Ford Motor Credit Co., 2002 WL 655679 at *4 (N.D. Ill. Apr. 18, 2002) (citing Simer, 661 F.2d at 672)). “Where liability determinations are both individual and fact-intensive, class certification under Rule 23(b)(3) is improper.” Oshawa, 225 F.R.D. at 584 (citing Rodriguez, 2002 WL 655679 at *4)).
The “predominant” question is whether or not Defendants unconstitutionally performed the screening process without achieving valid consent from the prisoners. Largely because of the manner in which Plaintiff has framed this question – as a categorical determination that applies to all individuals subjected to that process – there is no reason to think that minor factual discrepancies will counterbalance the importance of this overarching issue. The most difficult and all-encompassing question of consent, and Defendants’ alleged nefarious intent, can be decided and applied to all potential members. These questions will predominate, addressing far weightier factual and legal issues than minor individual deviations from the standard jail practices in question.
The second part of 23(b)(1)(3) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” It is true that individualized factfinding with respect to each putative class member can undermine the potential benefits of class action status. See Fisher v. Britol-Myers Squibb Co., 181 F.R.D. 365, 373 (N.D. Ill. 1998) (finding that there is little efficiency when court would need to engage in“extensive individualized proceedings regardless of whether we certify a class”); Crato v. Estate of Kassel, 63 F.R.D. 18 (S.D.N.Y. 1974) (finding certification of plaintiff class, or subgroups of a plaintiff

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class, inappropriate in case of fraud because each member would be required to testify on the representations that were made to them). However, in this instance the factual determination required in every given instance would be a relatively straightforward one; if the Plaintiffs successfully establish that the screening process was necessarily non-consensual, determining membership would be a simple matter of deciding who went through that process. Any additional factual analysis of individual circumstances would be limited, as stated above.
Even if it were necessary to conduct a mini-hearing to establish that each of the individual putative class members was indeed subject to the practices outlined in Plaintiffs’ allegations, which should not be the case, this would still be more efficiently done if this court is first able to categorically address the alleged unconstitutional process itself. To rehear this same question for each prisoner defies logic, and the case therefore demands the efficiency of scale that Rule 23 provides. As the matter is framed by Plaintiffs, membership in the class will be determined by whether or not a given prisoner underwent the STD screening. This is well within the realm of reasonable membership determinations that courts of this circuit have found appropriate in the past.
This outcome is supported by the application of another, implicit requirement that this circuit has read into the explicit criteria of Rule 23; that the definition of the proposed class be "adequately defined and clearly ascertainable." Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981). If Plaintiffs were in fact arguing that some of the prisoners admitted into the Cook County Jail had consented, the margins of that class would be subjective and difficult to determine without a thorough factual analysis of each prisoner's experience. If that were the case, Plaintiffs would fail to meet the implicit criterion adopted by the Seventh Circuit. Id. However where, as here,

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the Plaintiffs maintain that the process itself is constitutionally suspect, they have presented an issue that can and should be addressed categorically with respect to all similarly-situated prisoners.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for class certification is GRANTED.

Enter:

Dated: December 14, 2006

/s/ David H. Coar David H. Coar United States District Judge

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CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of September, 2009, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Patrick S. Smith, ASA, 500 Daley Center, Chicago, IL 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)

 
 Order Form (01/2005) Case: 1:08-cv-06946 Document #: 58 Filed: 12/09/09 Page 1 of 6 PageID #:549
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Amy J. St. Eve

Sitting Judge if Other than Assigned Judge

08 C 6946

DATE

12/9/2009

Zaborowski et al vs. Sheriff of Cook County et al.

DOCKET ENTRY TEXT
The Court, in its discretion, denies Plaintiffs' Motion for Class Certification [26] pursuant to Federal Rule of Civil Procedure 23.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT

On January 28, 2009, Plaintiffs Catherine Zaborowski and Simone Jackson, on behalf of a class, filed an Amended Complaint alleging that the Sheriff of Cook County has an unconstitutional policy pertaining to pregnant women in custody. See 42 U.S.C. § 1983. Before the Court is Plaintiffs’ Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. Because Plaintiffs have failed to fulfill the adequacy requirement under Rule 23(a)(4), as well as the superiority and predominance requirements under Rule 23(b)(3), the Court, in its discretion, denies Plaintiffs’ motion.
BACKGROUND
In their Amended Complaint, Plaintiffs allege that Zaborowski entered the Cook County Jail on June 3, 2008 and that Jackson entered the Jail on November 23, 2007. (R. 13-1, Amend. Compl. ¶ 4.) At the time they entered the Cook County Jail, both Zaborowski and Jackson were pregnant. (Id. ¶ 5.) Plaintiffs further allege that they were transferred from the Cook County Jail to the Sheriff’s “MOM’s” program, which is an off-site, residential treatment program run by the Haymarket Center. (Id. ¶ 6.)
Continued...

Courtroom Deputy

KF

Initials:

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Zaborowski went into labor on August 29, 2008, and her counselor from the Haymarket Center transported her to Stroger Hospital. (Id. ¶ 7.) Following her arrival at Stroger Hospital, and in accordance with Defendant’s policy, deputy sheriffs shackled Zaborowski’s hand and foot to the hospital bed. (Id. ¶ 8.) Zaborowski remained shackled hand and foot to the hospital bed for about eleven hours while she was in labor. (Id. ¶ 9.) An armed deputy sheriff remained in the hospital room during that time. (Id.) Immediately before giving birth, the attending physician requested that the deputy sheriff unshackle Zaborowski’s foot. (Id. ¶ 10.) The deputy sheriff complied with the doctor’s request and Zaborowski was shackled to the bed by one arm when she delivered her child on August 30, 2008. (Id.) Plaintiffs further allege that in accordance with the Sheriff’s policy, the deputy sheriff then re-shackled Zaborowski’s foot about an hour after she gave birth. (Id. ¶ 11.) Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. (Id. ¶ 12.) During this time period, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk. (Id.)
After Jackson went into labor on May 3, 2008, her counselor from the Haymarket Center took her to Stroger Hospital. (Id. ¶ 13.) Following her arrival at Stroger Hospital, and in accordance with the Sheriff’s policies, deputy sheriffs shackled Jackson’s hand and foot to the hospital bed. (Id. ¶ 14.) Jackson remained shackled hand and foot while she was in labor and during birth. (Id. ¶ 15.) An armed deputy sheriff remained in the hospital room while she was in labor and delivered her child. (Id.) Jackson remained at Stroger Hospital for approximately four days during which Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk per the Sheriff’s policies. (Id. ¶ 16.)
In their motion for class certification, Plaintiffs seek to certify the following class: “All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.” Pursuant to Rule 23(c)(4), Plaintiffs request that this case be maintained as a class action solely to adjudicate the legality of the Sheriff’s shackling policy and that all questions of damages for the unnamed class members be reserved for separate, subsequent damages actions. (R. 26-1, Mot. Class Cert., at 1.)1
LEGAL STANDARD
“[T]he primary purposes of the class-action mechanism” are “judicial economy and efficiency.” Andrews v. Chevy Chase Bank, 545 F.3d 570, 577 (7th Cir. 2008). To that end, Federal Rule of Civil Procedure 23(a) states that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a); see also Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009). Failure to meet any of these Rule 23(a) requirements precludes class certification. See id.; Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008).
In addition to satisfying the requirements under Rule 23(a), a party seeking class certification must also establish that the proposed class satisfies one of the requirements set forth in Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Arreola, 546 F.3d at 794. Here, Plaintiffs request certification of the proposed class pursuant to Rule 23(b)(3), which applies when “the questions

1 After the parties briefed Plaintiffs’ motion for class certification, the Court requested supplemental briefing regarding Plaintiffs’ request to maintain the class action solely to adjudicate the legality of the Sheriff’s policy and reserving questions of damages for the unnamed class members to subsequent actions.

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of law 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.P. 23(b)(3); see also Amchem Prods., 521 U.S. at 615-16. Under Rule 23(b)(3), if “a few class members’ injuries prove to be substantial, they may opt out and litigate independently.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006).

The party seeking class certification has the burden of establishing that certification is proper. See Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). In determining whether a party has carried that burden, a court need not accept all of the complaint’s allegations as true. See Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Instead, in deciding whether to certify a class, the Court “should make whatever factual and legal inquiries [that] are necessary under Rule 23.” Id. at 676; see also General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (courts may “probe behind the pleadings before coming to rest on the certification question”). Meanwhile, courts will not address the merits of a class action claim unless it affects the class certification. See Szabo, 249 F. 3d at 677. District courts have broad discretion in determining motions for class certification. See Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979); Payton v. County of Carroll, 473 F.3d 845, 847 (7th Cir. 2007).

ANALYSIS

I. Federal Rule of Civil Procedure 23(a)

A. Numerosity

To satisfy the numerosity requirement under Rule 23(a)(1), Plaintiffs must show that the number of members in the proposed class is so large that joinder would be impracticable. See Pruitt v. City of Chicago, Ill., 472 F.3d 925, 926 (7th Cir. 2006). Although there is no bright-line rule for numerosity, a class of at least forty members is sufficient to satisfy the numerosity requirement. See id.; Harris v. Best Buy Co., Inc., 254 F.R.D. 82, 85 (N.D. Ill. 2008).

Plaintiffs maintain that they have identified at least 49 women who gave birth while in the Sheriff’s custody during the class period despite Defendants’ failure to produce all of the documents Plaintiffs have requested. Plaintiffs have provided a list of these 49 women. Because Plaintiffs have already identified 49 putative class members and maintain that they may be able to identify more once Defendants produce more relevant documents, Plaintiffs have met the numerosity requirement under Rule 23(a)(1). See Streeter v. Sheriff of Cook County, 256 F.R.D. 609, 612 (N.D. Ill. 2009) (“The Court may rely on common sense assumptions or reasonable inferences when ascertaining the size of the class.”); see also Arreola, 546 F.3d at 798.

B. Commonality

Rule 23(a)(2) requires that Plaintiffs prove the existence of questions of fact or law common to the proposed class. See Culver v. City of Milwaukee, 277 F.3d 908, 910 (7th Cir. 2002) (class must be reasonably homogeneous). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). A common nucleus of fact exists when a defendant has “engaged in standardized conduct towards members of the proposed class.” Id. Because Plaintiffs’ class action relies on the Sheriff’s standardized conduct pursuant the shackling policy, Plaintiffs have met their burden in establishing the commonality requirement under Rule 23(a)(2). See Streeter, 256 F.R.D. at 612. In addition, the class members are governed by the same legal rules as to the Sheriff’s liability. See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002) (“No class action is proper unless all litigants are governed by the same legal rules.”).

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C. Typicality

Next, Plaintiffs must establish that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Rahman v. Chertoff, 530 F.3d 622, 627 (7th Cir. 2008); Fed.R.Civ.P. 23(a)(3). As the Seventh Circuit explains:

A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and her claims are based on the same legal theory. Even though some factual variations may not defeat typicality, the requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large.

Arreola, 546 F.3d at 798 (quoting Oshana, 472 F.3d at 514) (quotation marks and citations omitted).

Plaintiffs satisfy the typicality requirement because their claim and the putative class members’ claims are based on the same legal theory and arise from the same practice or course of conduct, namely, the Sheriff’s shackling policy. See Arreola, 546 F.3d at 798. As such, Defendants’ strained distinction that some of the putative class members came directly from the Cook County Jail instead of the Haymarket Center has no bearing on the Court’s typicality analysis. See id. (“some factual variations may not defeat typicality”).

D. Adequacy Requirement – Rule 23(a)(4)

“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods, 521 U.S. at 625; see also Asher v. Baxter Int’l Inc., 505 F.3d 736, 737 (7th Cir. 2007) (“Minimum standards of adequacy are the domain of Fed.R.Civ.P. 23(a)(4), which permits a class action only if ‘the representative parties will fairly and adequately protect the interests of the class.’”). When determining the adequacy requirement, courts look to whether: (1) the named plaintiffs have conflicting or antagonistic claims with members of the putative class; and (2) counsel is qualified, competent, and experienced. See Kohen v. Pacific Inv. Mgmt. Co., LLC, 571 F.3d 672, 679 (7th Cir. 2009); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).

It is undisputed that Plaintiffs’ counsel is qualified, and thus the Court turns to whether Plaintiffs have conflicting or antagonistic claims to members of the proposed class. As discussed above, Plaintiffs request that this case be maintained as a class action solely to adjudicate the legality of the Sheriff’s shackling policy and that all questions of damages for the unnamed class members be reserved to individual damages actions. Under the circumstances, Plaintiffs are reserving the issue of damages to fulfill the commonality requirement due to the individualized nature of the proposed class members’ damages. By doing so, the named Plaintiffs are jeopardizing the unnamed class members’ ability to bring damages claims in subsequent lawsuits based on res judicata, also known as claim preclusion. See Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595, 606 (S.D.N.Y. 1982) (tailoring “class claims in an effort to improve the possibility of demonstrating commonality” was “purchased at the price of presenting putative class members with significant risks of being told later that they had impermissibly split a single cause of action.”).

To clarify, the “doctrine of res judicata bars a person from splitting his claim between two suits.” Allan Block Corp. v. County Materials Corp., 512 F.3d 912, 915 (7th Cir. 2008) (citing Restatement (Second) of Judgments §§ 24, 25 and comment b (1982)); see also Rivet v. Regions Bank of La., 522 U.S. 470, 476, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) (“Under the doctrine of claim preclusion, ‘[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’”) (citation omitted). Thus, under the circumstances, if the Court allowed Plaintiffs’ class action to go

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forward on the issue of liability only – leaving the issue of damages until future, individualized damages proceedings – the unnamed class members may be barred from seeking any damages. More specifically, because subsequent courts will determine the preclusive effect of this Court’s judgment in the present matter, the Court cannot ensure that granting class certification solely on the policy question as the named Plaintiffs’ request would preserve the class members’ rights to bring future damages claims. See In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 340 (S.D.N.Y. 2002); Thompson v. American Tobacco Co., Inc., 189 F.R.D. 544, 550 (D. Minn. 1999) (“even if the Court permits the reservation of issues in this case, whether a subsequent court would honor such a reservation is, at best, undeterminable at this time.”); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 805, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (“court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment”). Therefore, even though courts have recognized an exception to splitting separate substantive claims in the context of class certifications, see Makor Issues & Rights, Ltd. v. Tellabs, Inc., 256 F.R.D. 586, 597-98 (N.D. Ill. 2009), under the present circumstances, Plaintiffs are attempting to impermissibly split a single cause of action by separating the liability determination from the class members’ individual damages claims to the potential detriment of the unnamed class members. See Feinstein, 535 F.Supp. at 606.
Accordingly, the named Plaintiffs do not adequately protect the interests of the putative class members due to their request to reserve individual damages claims for subsequent lawsuits. See Thompson, 189 F.R.D. at 550-51; Feinstein, 535 F.Supp. at 606-07; see also MTBE Prods. Liab., 209 F.R.D. at 340-41 (named plaintiffs who waive potential claims of absentee plaintiffs are inadequate class representatives). Meanwhile, Plaintiffs fail to explain how the putative class members could “opt out” pursuant to Section 23(b)(3) under these circumstances, especially in light of the fact that every single class member would have to opt out in order for the Court to ensure that the proposed class members’ rights to bring future damages claims are adequately preserved. See MTBE Prods. Liab., 209 F.R.D. at 340. As such, requiring the unnamed plaintiffs to opt out in order to preserve their damages claims defeats the purpose of class treatment in the first instance. See Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 744 (7th Cir. 2008) (“The class action is an ingenious device for economizing on the expense of litigation and enabling small claims to be litigated.”). Indeed, Plaintiffs fail to explain how the unnamed plaintiffs could opt out and preserve their damages claims. Therefore, the named Plaintiffs have failed in their burden of establishing the adequacy requirement under Rule 23(a)(4). See Oshana, 472 F.3d at 513.
II. Superiority and Predominance Requirements– Rule 23(b)(3)
Under Rule 23(b)(3), the Court must determine whether (1) the questions of fact or law common to the class members predominate over questions affecting only the individual class members, and (2) a class action is superior to other available methods of adjudicating plaintiffs’ claims. See Amchem Prods., 521 U.S. at 615; Andrews, 545 F.3d at 577. Rule 23(b)(3) includes a list of factors for courts to consider regarding the predominance and superiority criteria:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Amchem Prods, Inc., 521 U.S. at 615-16; see also Szabo, 249 F.3d at 676.

Here, the class action – as proposed – does not fulfill the superiority requirement under Rule 23(b)(3)

08C6946 Zaborowski et al vs. Sheriff of Cook County et al.

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Case: 1:08-cv-06946 Document #: 58 Filed: 12/09/09 Page 6 of 6 PageID #:554
because judicial economy is not served by the Court determining the Sheriff Office’s liability after which at least 49 subsequent damages lawsuits could follow. See Andrews, 545 F.3d at 577 (“primary purposes of the classaction mechanism [are] judicial economy and efficiency”). Put differently, any efficiencies gained from consolidating the question of the Sheriff’s liability do not outweigh the fact that 49 separate plaintiffs may file subsequent damages lawsuits based on the same common facts. See id.; see also Hyderi v. Washington Mut. Bank, FA, 235 F.R.D. 390, 406 (N.D. Ill. 2006) (efficiency gains from consolidation did not outweigh follow-up procedures).
In addition, Plaintiffs’ argument that this is not a “nominal damages” case works against the superiority requirement. See Jackson v. National Action Fin. Servs., Inc., 227 F.R.D. 284, 290 (N.D. Ill. 2006) (“A class action is superior where potential damages may be too insignificant to provide class members with incentive to pursue a claim individually.”). In fact, there are three other pending lawsuits in the Northern District of Illinois that challenge the Sheriff’s shackling policy for pregnant women in custody in which the plaintiffs seek similar compensatory damages. See Danielle Bryant v. Sheriff of Cook County & County of Cook, No. 09 C 1546; Katina Embrey v. Sheriff of Cook County & County of Cook, No. 09 C 3470; and Marilu Morales v. Sheriff of Cook County & County of Cook, No. 09 C 3546.
Finally, in their supplemental briefs, Plaintiffs maintain that “Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation of individual damages issues.” Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). From the arguments made in their supplemental briefing, it appears that Plaintiffs are suggesting that the Court could hold separate trials as to the 49 or more class members’ damages even though the individual plaintiffs’ claims for damages would not be before the Court. As is the case here, 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.” Harper, 581 F.3d at 515 (quoting Hyderi, 235 F.R.D. at 406).

08C6946 Zaborowski et al vs. Sheriff of Cook County et al.

Page 6 of 6

 
 CCaassee: :10:098-8-c0v4-90694D6oDcoucmuemnet:n0t 0#7: 16153F4i9le0d4:903/2F3/il1e0d:P0a3g/e231/2o0f120PagPeIaDge#s:5: 621 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett M cKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 w w w .ca7.u sco u rts.g ov

March 23, 2010

ORDER
BEFORE MICHAEL S. KANNE, Circuit Judge TERENCE T. EVANS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge

No.: 09-8049

IN RE: CATHERINE ZABOROWSKI and SIMONE JACKSON, Petitioners

Originating Case Information:

District Court No: 1:08-cv-06946 Northern District of Illinois, Eastern Division District Judge Amy J. St. Eve
The following are before the court:

1) PETITION FOR PERMISSION TO APPEAL, filed on December 14, 2009, by counsel for the petitioner.

2) RESPONSE OF DEFENDANTS-RESPONDENTS TO PLAINTIFFSPETITIONERS’ RULE 23(f) PETITION FOR LEAVE TO APPEAL, filed on January 29, 2010, by counsel for the respondents.

3) PLAINTIFFS’ SUPPLEMENTAL MEMORANUDM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION, filed on February 9, 2010, by counsel for the petitioners.

IT IS ORDERED that #1 is DENIED.

form name: c7_Order_3J (form ID: 177)

CCaassee: :10:098-8-c0v4-90694D6oDcoucmuemnet:n0t 0#7: 16153F4i9le0d4:903/2F3/il1e0d:P0a3g/e232/2o0f120PagPeIaDge#s:5: 622

 
 Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 1 of 35 PageID #:586

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

Catherine Zaborowski and

)

Simone Jackson, individually and )

on behalf of a class,

)

)

Plaintiffs,

)

-vs-

)

)

Sheriff of Cook County and Cook )

County, Illinois,

)

)

Defendants.

)

No. 08 CV 6946 (Judge St. Eve)

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF AMENDED MOTION FOR CLASS CERTIFICATION

Plaintiffs file this memorandum pursuant to the Court’s order of or-

der of April 7, 2010 in support of their amended motion for class certifica-

tion.

I. Introduction

It its order of December 9, 2009 denying plaintiffs’ initial request for

class certification, the Court concluded that the proposed class satisfied

the numerosity, typicality, and commonality requirements of Rule 23(a).

(Order, Dec. 9, 2009, 3-4.) The Court recognized that plaintiffs were

represented by “qualified counsel” (Order, Dec. 9, 2009, 4), but held that

the named plaintiffs could not adequately represent the class because of

“their request to reserve individual damages claims for subsequent law-

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 2 of 35 PageID #:587
suits.” (Order, Dec. 9, 2009, 5.) Similarly, the Court held that the class “as proposed” (Order, Dec. 9, 2009 at 5, emphasis added), did not satisfy Rule 23(b)(3) because “any efficiencies gained from consolidating the question of the Sheriff’s liability do not outweigh the fact that 49 separate plaintiffs may file subsequent damages lawsuits based on the same common facts.” (Order, Dec. 9, 2009 at 6.)
Plaintiffs now propose a different class. Plaintiffs do not seek to limit the class to liability, but request that the case be maintained as a class action pursuant to Rule 23(b)(3) to adjudicate liability and damages for all class members. Plaintiffs demonstrate below that the Court should grant their amended motion for class certification.
II. Plaintiffs’ “Right to Have a Class Certified”
Rule 23 of the Federal Rules of Civil Procedure permits a litigant to “bring his [or her] claim as a class if he [or she] wishes.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S.Ct. 1431, 1438 (2010). Upon showing that the case satisfies the requirements of Rule 23, “the Federal Rules of Civil Procedure give the proposed class representative the right to have a class certified.” United States Parole Commission v. Geraghty, 445 U.S. 388, 403 (1980). While Rule 23(b) begins that “[a] class action may be maintained if Rule 23(a) is satisfied,” the permissive “may”
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Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 3 of 35 PageID #:588
refers to the plaintiff, rather than to the court: “The discretion suggested by Rule 23’s ‘may’ is discretion residing in the plaintiff.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S.Ct. at 1438. Rule 23 “empowers a federal court ‘to certify a class in each and every case’ where the Rule’s criteria are met.” Id. Moreover, Rule 23 “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Id. at 1437. Plaintiffs show below that their amended motion for class certification satisfies each criteria of Rule 23(a) and Rule 23(b)(3).
III. Facts
Each year, more than 30 women give birth while in the custody of the Sheriff of Cook County.
In 1998, the Sheriff adopted a policy mandating that all pregnant women in his custody be shackled during labor and during recovery following labor. The Sheriff’s shackling policy requires a Deputy Sheriff to bind one leg and one arm of the pregnant detainee to her hospital bed. The policy also requires an armed Deputy Sheriff to remain with the pregnant detainee during labor and delivery.
The Court summarized the facts of each of the named plaintiffs in its order of December 9, 2009 at 1-2:
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Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 4 of 35 PageID #:589
In their Amended Complaint, Plaintiffs allege that Zaborowski entered the Cook County Jail on June 3, 2008 and that Jackson entered the Jail on November 23, 2007. (R. 13-1, Amend. Compl. ¶ 4.) At the time they entered the Cook County Jail, both Zaborowski and Jackson were pregnant. (Id. ¶ 5.) Plaintiffs further allege that they were transferred from the Cook County Jail to the Sheriff’s “MOM’s” program, which is an offsite, residential treatment program run by the Haymarket Center. (Id. ¶ 6.)
Zaborowski went into labor on August 29, 2008, and her counselor from the Haymarket Center transported her to Stroger Hospital. (Id. ¶ 7.) Following her arrival at Stroger Hospital, and in accordance with Defendant’s policy, deputy sheriffs shackled Zaborowski’s hand and foot to the hospital bed. (Id. ¶ 8.) Zaborowski remained shackled hand and foot to the hospital bed for about eleven hours while she was in labor. (Id. ¶ 9.) An armed deputy sheriff remained in the hospital room during that time. (Id.) Immediately before giving birth, the attending physician requested that the deputy sheriff unshackle Zaborowski’s foot. (Id. ¶ 10.) The deputy sheriff complied with the doctor’s request and Zaborowski was shackled to the bed by one arm when she delivered her child on August 30, 2008. (Id.) Plaintiffs further allege that in accordance with the Sheriff’s policy, the deputy sheriff then re-shackled Zaborowski’s foot about an hour after she gave birth. (Id. ¶ 11.) Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. (Id. ¶ 12.) During this time period, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk. (Id.)
After Jackson went into labor on May 3, 2008, her counselor from the Haymarket Center took her to Stroger Hospital. (Id. ¶ 13.) Following her arrival at Stroger Hospital, and in accordance with the Sheriff’s policies, deputy sheriffs shackled Jackson’s hand and foot to the hospital bed. (Id. ¶ 14.) Jackson remained shackled hand and foot while she was in labor and during birth. (Id. ¶ 15.) An armed deputy sheriff remained in the hospital room while she was in labor and delivered her child. (Id.) Jackson remained at Stroger Hospital for approx-
-4-

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 5 of 35 PageID #:590
imately four days during which Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk per the Sheriff’s policies. (Id. ¶ 16.) In May v. Sheahan, 226 F.3d 876 (7th Cir. 2000), this Court held that the Sheriff’s policy requiring that all hospital detainees be shackled to their beds was “plainly excessive” as applied to an AIDS patient. Id. at 884. The Court reaffirmed this holding in Hart v. Sheahan, 396 F.3d 887 (7th Cir. 2005), where it cited May for the proposition that “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.” Id. at 892. The question presented in this case is whether the use of bodily restraints on a pregnant woman during labor, delivery, or recovery following delivery is “rationally related to a legitimate non-punitive government purpose.” As set out below, this question should be decided in one fell swoop in a Rule 23(b)(3) class action.
IV. The Proposed Class Continues to Satisfy the Numerosity, Typicality, and Commonality Requirements of Rule 23(a)
Plaintiffs supported their initial class motion with a list identifying 49 members of the putative class. (Order, Dec. 9, 2009, 3.) Five of those
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women have since filed individual cases.1 Plaintiffs have identified an additional 15 members of the putative class, identified in Exhibit 1. In accordance with the principles the Court applied in its order of December 9, 2009, the proposed class therefore continues to satisfy the numerosity requirement of Rule 23(a).
Nothing has changed pertaining to the commonality and typicality requirements of Rule 23(a) since entry of the Court’s order of December 9, 2009. For the reasons set out by the Court in its order of December 9, 2009 at 3-4, the proposed class continues to satisfy the commonality and typicality requirements of Rule 23(a).
V. The Amended Request for Class Certification Eliminates any Conflicts between the Named Plaintiffs and the Class
The Court concluded in its order of December 9, 2009 that the named plaintiffs “do not adequately protect the interests of the putative class members due to their request to reserve individual damage claims for subsequent lawsuits.” (Order, Dec. 9, 2009, 5.) Plaintiffs do not make any such request in their amended class motion.
The adequate representation requirement of Rule 23(a)(4) “serves to uncover conflicts of interests between named parties and the class they 1 Farrar v. Dart, 10-cv-00333; Fletcher v. Dart, 10-cv-00139; Lee v. Dart, 09 CV 789; Smith v. Dart, 09-cv-7791; Vitirriti v. Dart, 09-cv-7792.
-6-

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 7 of 35 PageID #:592
seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 594 (1997). As this Court stated in Silversman v. Motorola, Inc., 259 F.R.D. 163 (N.D.Ill. 2009), “[t]o establish that they will fairly and adequately protect the interests of the class, class representatives must show that: (1) their claims are not antagonistic to or in conflict with those of the proposed class; (2) they have sufficient interest in the outcome of the case; and (3) experienced, competent counsel represents them.” Id. at 173. The proposed class satisfies each of these requirements.
The named plaintiffs seek damages on the same theory asserted on behalf of the proposed class. Each of the named plaintiffs therefore “possess the same interest and suffer the same injury as the class members.” Uhl v. Thoroughbred Technology and Telecommunications, Inc., 309 F.3d 978, 985, quoting East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403 (1977). “In short, there are no inconsistencies between [the named plaintiffs’ claim] and the class members’ claims.” Harris v. Best Buy Co., Inc., 254 F.R.D. 82, 88 (N.D.Ill. 2008). The named plaintiffs therefore satisfy the first two prongs of the adequacy of representation requirement.
The named plaintiffs also satisfy the third prong of the adequacy requirement: the Court observed in its order of December 9, 2009 that “[i]t is undisputed that Plaintiffs’ counsel is qualified.” (Order, Dec. 9, 2009, 4.)
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Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 8 of 35 PageID #:593
Thus, as in Harris v. Best Buy Co., Inc., supra, the Court should conclude
that plaintiffs have “fulfilled the adequacy requirement of Rule 23(a)(4)
because [their] claim is not antagonistic to the proposed class’ claims, [they
have an] interest in the outcome of the case, and [their] counsel is
experienced and competent.” 254 F.R.D. at 88.
VI. The Revised Class Satisfies the Requirements of Rule 23(b)(3)
Rule 23(b)(3) permits a case to proceed as a class action when
(3) [T]he court finds that the questions of law 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 fair and efficient adjudication of the controversy. The matters pertinent to the finding include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.
1. Predominance “When determining if a plaintiff has met the predominance require-
ment, district courts look beyond the pleadings to determine whether the
-8-

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 9 of 35 PageID #:594
plaintiff’s claims are subject to class-wide proof by common evidence.” Siegel v. Shell Oil Co., No. 06-35, N.D.Ill, Feb. 23, 2009, at 5, attached as Exhibit 2. In this case, adjudicating the legality of the Sheriff’s alleged shackling policy will not require any individual determinations.
Plaintiffs allege that defendant Sheriff requires that all pregnant women in his custody be shackled during labor and during recovery following labor. (Amended Complaint, ¶17.) The Sheriff admitted at a Rule 30(b)(6) deposition that when a pregnant female detainee comes to a hospital for childbirth, she will go through labor with one leg shackled to the hospital bed and one of her hands cuffed to the bed.2 (Exhibit 3 at 7-9, Hickerson Deposition 43:11-45:7.) Plaintiffs’ theory of the case is that this shackling is unconstitutional under May v. Sheahan, 226 F.3d 876 (7th Cir. 2000).
Plaintiffs will thus “offer proof on a class-wide basis.” Hyderi v. Washington Mutual Bank, FA, 235 F.R.D. 390, 398 (N.D.Ill. 2006). As the district court concluded in Blihovde v. St. Croix County, Wis., 219 F.R.D. 607 (W.D.Wis. 2003), “the case law suggests that when the class is challenging a uniform policy, the validity of that policy predominates over in-
2 The Rule 30(b)(6) witness did not know if any changes had been made in shackling women assigned to the “MOM’s” program. Exhibit 3 at 5, Hickerson Deposition 41:6.
-9-

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 10 of 35 PageID #:595
dividual issues and class certification is appropriate.” Id. at 620. Accordingly, the amended class satisfies the predominance requirement of Rule 23(b)(3).
2. Superiority Plaintiffs’ counsel originally believed that an individual proceeding of some sort would be required to determine the amount of damages for each woman aggrieved by the shackling policy. On this basis, counsel proposed that the case be maintained as a class limited to liability. Plaintiffs’ counsel are now attorneys of record in nine cases challenging the shackling policy.3 Counsel have interviewed and been retained by other woman aggrieved by the challenged policy and have concluded that, unless a plaintiff can show that the shackling caused harm to the child, the damages in each case will be established by testimony from the shackling victim of the shock, panic, depression, shame, rage, and humiliation caused by being shackled during labor, delivery, or recovery following delivery.4 Once the common liability question is determined, damages for each classmember could be resolved through a series of multiple-plaintiff trials, as in
3 In addition to this case and the five cases enumerated in note 1 above, counsel are attorneys of record in Embrey v. Sheriff, 09 CV 3470, Morales v. Sheriff, 09 CV 3546, and Bryant v. Sheriff, 09 CV 1546. 4 No claim of injury to the child has come to light in our interviews of women aggrieved by the Sheriff’s shackling policy.
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Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 11 of 35 PageID #:596
Jenkins v. Raymark Industries, Inc., 782 F.2d 468 (5th Cir. 1986) (seven to ten plaintiffs), or (as is more likely), through settlement.
Resolving all issues in one case “makes good sense,” Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003), and is superior to litigating liability and damages in forty or more individual cases.
VII. Conclusion
For the reasons above stated, the Court should order that this case be maintained as a class action on behalf of:
All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.
Respectfully submitted,
/s/ Kenneth N. Flaxman Kenneth N. Flaxman 200 S Michigan Ave, Ste 1240 Chicago, Illinois 60604 (312) 427-3200 Thomas G. Morrissey. 10249 S Western Ave Chicago, Illinois 60643 (773) 233-7900 Attorneys for Plaintiffs
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Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 12 of 35 PageID #:597
Exhibit 1

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 13 of 35 PageID #:598

Members of the Putative Class Identified after September 14, 2009

1

Teri

2

Lynn L.

3

Kimberly

4

Lisa

5

Nedra

6

Sheri

7

Crystal

8

Jenice N.

9

Regina

10

Ana

11

Sheila

12

Brandy

13

Monique

14

Sheryl

15

Deana

Plaintiffs' Exhibit 1

Page 1

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Exhibit 2

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 15 of 35 PageID #:600

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

MICHAEL SIEGEL on behalf of himself, )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

SHELL OIL COMPANY, a Delaware

)

corporation, BP CORPORATION NORTH )

AMERICA, INC., an Indiana corporation, )

CITGO PETROLEUM CORPORATION, )

a Delaware corporation, MARATHON OIL )

COMPANY, an Ohio corporation, and

)

EXXON MOBIL CORPORATION,

)

a New Jersey corporation,

)

)

Defendants.

)

No. 06 C 0035

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

In his Amended Class Action Complaint, Plaintiff Michael Siegel alleges that Defendants

Shell Oil Company, BP Corporation North America, Inc., Citgo Petroleum Corporation,

Marathon Oil Company, and Exxon Mobil Corporation are liable under the Illinois Consumer

Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1, et. seq., for deceptive

and unfair practices (Counts I and II). Siegel also brings a common law unjust enrichment claim

based on both tort and quasi-contract (Count III) and a common law civil conspiracy claim

(Count IV). On September 23, 2008, the Court, in its discretion, denied Siegel’s Amended

Motion for Class Certification involving Siegel’s proposed nationwide classes. (R. 308-1,

Mem., Op., & Order.) Before the Court is Siegel’s Second Amended Motion for Class

Certification pursuant to Federal Rule of Civil Procedure 23. For the following reasons, the

Plaintiffs' Exhibit 2

Page 1

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 16 of 35 PageID #:601

Court, in its discretion, denies Siegel’s motion. Further, the Court denies Defendants’ Motion to Exclude Plaintiff’s Expert Testimony as moot.
BACKGROUND In his Amended Class Action Complaint, Siegel alleges that “Defendants possess oligopolistic power and have possessed oligopolistic power throughout the entire class period, i.e., 2000 to the date of judgment, in the crude, refined and gasoline industry (“gas industry”), and have used this power in concert with their co-conspirators to illegally and artificially restrain trade and increase the price of gasoline to consumers by controlling their inventory, production, exports, limiting supply, restricting purchase, zone pricing, falsely advertising the scarceness of gasoline and excessive mark up between gasoline and crude prices.” (R. 77-1, Amend. Compl. ¶ 1.) In the present motion for class certification, Siegel maintains that Defendants manipulated the nation’s supply of gasoline resulting in Siegel and the proposed class being damaged through paying Defendants’ inflated prices for gasoline. (R. 332-1, Pl.’s Second Amend. Mot. Class Cert., ¶ 1.) Siegel further contends that Defendants omitted material information, engaged in unfair practices, and that Defendants were unjustly enriched to the detriment of Siegel and the proposed class as a result of this conduct. (Id.) Siegel seeks certification of the following class: “All purchasers who made retail purchases of any Defendants’ branded gasoline in Illinois during the period from and including December 2, 2000, through and including September 5, 2008.” (Id. ¶ 2.)
LEGAL STANDARD “[T]he primary purposes of the class-action mechanism” are “judicial economy and efficiency.” Andrews v. Chevy Chase Bank, 545 F.3d 570, 577 (7th Cir. 2008); see also

2

Plaintiffs' Exhibit 2

Page 2

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 17 of 35 PageID #:602

Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 744 (7th Cir. 2008) (“The class action is an ingenious device for economizing on the expense of litigation and enabling small claims to be litigated.”). To that end, Federal Rule of Civil Procedure 23(a) states that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Failure to meet any of these Rule 23(a) requirements precludes class certification. See Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008).
In addition to satisfying the requirements under Rule 23(a), a party seeking class certification must also establish that the proposed class satisfies one of the requirements set forth in Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Arreola, 546 F.3d at 794. Here, Siegel requests certification of the proposed class pursuant to Rule 23(b)(3), which applies when “the questions of law 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.P. 23(b)(3); see also Amchem Prods., 521 U.S. at 615-16. Under Rule 23(b)(3), if “a few class members’ injuries prove to be substantial, they may opt out and litigate independently.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006).
The party seeking class certification has the burden of establishing that certification is

3

Plaintiffs' Exhibit 2

Page 3

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proper. See Oshana, 472 F.3d at 513. In determining whether a party has carried that burden, a court need not accept all of the complaint’s allegations as true. See Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Rather, in deciding whether to certify a class, the Court “should make whatever factual and legal inquiries [that] are necessary under Rule 23.” Id. at 676; see also General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (courts may “probe behind the pleadings before coming to rest on the certification question”). Finally, district courts have broad discretion in determining motions for class certification. See Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S.Ct. 2326, 2334, 60 L.Ed.2d 931 (1979); Payton v. County of Carroll, 473 F.3d 845, 847 (7th Cir. 2007).
ANALYSIS The Court turns to Rule 23(b)(3) because it is dispositive.1 Under Rule 23(b)(3), the Court must determine whether (1) the questions of fact or law common to the class members predominate over questions affecting only the individual class members, and (2) a class action is superior to other available methods of adjudicating plaintiffs’ claims. See Amchem Prods., 521 U.S. at 615; Andrews, 545 F.3d at 577. I. Predominance Here, Defendants maintain that Siegel cannot establish – through common proof – that Defendants’ conduct proximately caused harm to each member of the putative class, and thus

1 In their response brief, Defendants do not challenge the numerosity requirement or that there is a common nucleus of operative facts as required under Rule 23(a), and thus any such arguments are waived. See Steen v. Myers, 486 F.3d 1017, 1020 (7th Cir. 2007) (absence of discussion in briefs amounts to abandonment of claim). Meanwhile, Defendants’ bare-boned adequacy argument is waived. See White Eagle Coop. Ass’n v. Conner, 553 F.3d 467, 476 n.6 (7th Cir. 2009) (perfunctory and undeveloped arguments are waived).
4

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Siegel has failed in his burden of establishing that class treatment is appropriate under Rule 23(b)(3). The Court agrees. When determining if a plaintiff has met the predominance requirement, district courts look beyond the pleadings to determine whether the plaintiff’s claims are subject to class-wide proof by common evidence. See Thorogood, 547 F.3d at 747-48; Andrews, 545 F.3d at 577; Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1046-47 (7th Cir. 2007); Hewitt v. Joyce Beverages of Wis., Inc., 721 F.2d 625, 628-29 (7th Cir. 1983). In other words, “predominance is concerned with whether the putative named plaintiffs can, through their individualized cases, offer proof on a class-wide basis.” Hyderi v. Washington Mut. Bank, FA, 235 F.R.D. 390, 398 (N.D. Ill. 2006).
In Counts I and II of his Amended Class Action Complaint, Siegel brings claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1, et. seq., for deceptive and unfair practices. In the present motion, Siegel characterizes his deceptive practices claim as a “material omissions” claim and his unfair practices claim as an “unfair conduct” claim. Nevertheless, the elements of a claim under the ICFA are: (1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce. See Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 417, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002); Galvan v. Northwestern Mem’l Hosp., 382 Ill.App.3d 259, 264, 888 N.E.2d 529, 535, 321 Ill.Dec. 10, 16 (Ill.App. Ct. 2008). Moreover, “a private cause of action under ICFA requires a showing of proximate causation.” Oshana, 472 F.3d at 514-15; Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 200, 835 N.E.2d 801, 861, 296 Ill.Dec. 448, 508 (2005) (“Proximate causation is an element of all private

5

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causes of action under the Act.”). An Illinois deceptive practices case similar to the present matter involving the advertising
of gasoline is instructive. See Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002). In Oliveira, the Supreme Court of Illinois analyzed whether a defendant’s gasoline advertisements omitted material facts or were false and misleading under the ICFA and concluded that to establish the proximate cause for deceptive advertising, the plaintiff must show that he was somehow deceived. See Oliveira, 201 Ill.2d at 139-40, 155; see also Shannon v. Boise Cascade Corp., 208 Ill.2d 517, 525, 281 Ill.Dec. 845, 805 N.E.2d 213 (2004) (“deceptive advertising cannot be the proximate cause of damages under the Act unless it actually deceives the plaintiff.”). As the Seventh Circuit has explained in the context of deceptive practices claims, “a damages claim under the ICFA requires that the plaintiff was deceived in some manner and damaged by the deception.” Oshana, 472 F.3d at 513-14.
Likewise, to establish a common law claim of unjust enrichment – as alleged in Count III of Siegel’s Amended Class Action Complaint – a plaintiff must prove deception by the defendant. See Oshana, 472 F.3d at 515; Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 943 (7th Cir. 2001) (“in the absence of any deception on the part of the defendants, the requisite violation of ‘fundamental principles of justice, equity, and good conscience’ is not present.”) (citation omitted); HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 160, 137 Ill.Dec. 19, 545 N.E.2d 672 (1989); see, e.g., In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., No. MDL 1703, 2007 WL 4287511, at *9 (N.D. Ill. Dec. 4, 2007).
Here, Siegel’s own deposition testimony demonstrates that establishing causation for his ICFA deceptive and unfair practice claims would require the Court to make individual inquiries

6

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into the putative class members’ reactions to Defendants’ alleged unfair and deceptive conduct. Specifically, at his deposition Siegel stated that no one believed in the gas industry’s advertising that explained their profits were not exorbitant and that he, himself, did not personally believe them. (R. 358-1, Defs.’ Ex. 1, Siegel Dep., at 170-71.) Siegel further testified that he did not believe the Defendants’ statements with respect to disparities between the price of gasoline and the price of crude oil. (Id. at 271.) Moreover, Siegel admitted that – although he claims that Defendants’ advertising of the price at the gas pump failed to inform consumers that the price was not a fair market price – convenience was his number one factor in purchasing gasoline. (Id. at 21, 168.)
Siegel’s testimony that Defendants’ advertising did not deceive him and that he purchased gasoline based on other considerations – such as convenience – not only undermines the typicality requirement under Rule 23(a),2 but also illustrates the difficulty in certifying a class of “millions of individuals throughout Illinois during the relevant time period,”3 who may or may not have been deceived by Defendants’ conduct and who may or may not have relied on Defendants’ deceptive or unfair practice in purchasing gasoline. In general, the Court would be required to make individual determinations concerning the circumstances surrounding each individual’s gasoline purchases to discern whether Defendants conduct proximately caused plaintiff’s injuries. As to Siegel’s deceptive practices and unjust enrichment claims, for

2 As the Seventh Circuit teaches, “[e]ven though some factual variations may not defeat typicality, the requirement is meant to ensure that the named representative’s claims ‘have the same essential characteristics as the claims of the class at large.’” Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (citations and internal quotations omitted).
3 See R. 333-1, Pl.’s Mem. in Support, at 7.
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example, the Court would need to determine whether Defendants deceived each putative class member and whether the individual plaintiff was damaged by the deception. See In re Sears, 2007 WL 4287511, at *9 (“it will be necessary to show that each class member purchased the tool and paid the price as a result of defendant’s deception.”); see also Barbara’s Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 76, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007) (“Under Oliveira and its progeny, plaintiffs must prove that each and every consumer who seeks redress actually saw and was deceived by the statements in question.”). As the Seventh Circuit instructs, “when a separate evidentiary hearing is required for each class member’s claim, the aggregate expense may, if each claim is very small, swamp the benefits of class-action treatment.” Pastor, 487 F.3d at 1047; see, e.g., Thorogood, 547 F.3d at 746-48. Such is the case here. See, e.g., Clark v. Experian Info., Inc., 233 F.R.D. 508, 512 (N.D. Ill. 2005) (The nature of the plaintiffs’ [ICFA] claims require an individualize person-by-person evaluation of what the potential class members viewed on the defendants’ website, the potential class member’s understanding of and reliance on this information, and what damages, if any, resulted.”). In sum, unlike class actions where a defendant’s conduct is standardized and the class plaintiffs’ individual reactions to the defendant’s conduct are unnecessary in determining liability, see Murray v. GMAC Mortgage, Corp., 434 F.3d 948, 955 (7th Cir. 2006), Siegel’s proposed class requires the Court to determine how each plaintiff reacted to Defendants’ alleged unfair and deceptive conduct.
Accordingly, Siegel has failed in his burden of establishing that common evidence can be used to prove that each class member relied on Defendants’ unfair or deceptive conduct when purchasing gasoline at an allegedly elevated price. Because individual fact issues predominate over common fact issues, the Court denies Siegel’s motion for class certification as to his ICFA

8

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claims as alleged in Counts I and II of the Amended Class Action Complaint, as well as Siegel’s unjust enrichment claim in Count III. See Thorogood, 547 F.3d at 747-48.
In Count IV of his Amended Class Action Complaint, Siegel alleges a common law civil conspiracy claim. As the Court previously explained when denying Defendants’ Rule 12(c) motion for judgment on the pleadings, a civil conspiracy claim is not a stand-alone tort. (R. 2281, 1/2/08 Minute Order, at 5.) Instead, the “function of a conspiracy claim is to extend tort liability from the active wrongdoer to wrongdoers who may have only planned, assisted or encouraged the active wrongdoer.” Redelmann v. Claire Sprayway, Inc., 375 Ill.App.3d 912, 923, 314 Ill.Dec. 320, 874 N.E.2d 230 (2007). Put differently, “civil conspiracy is not an independent tort but must be premised on the commission of an underlying independent wrong.” De Bouse v. Bayer AG, 385 Ill.App.3d 812, 829, 324 Ill.Dec. 806, 896 N.E.2d 882 (2008). In fact, in his original class action brief, Siegel admitted that a common law civil conspiracy claim requires an underlying tort. (R. 291-1, Pl.’s Class Cert. Mem., at 32.) Because Siegel has failed to establish the Rule 23(b)(3) predominance requirement for the underlying tort and quasicontract claims, Siegel cannot establish predominance for his civil conspiracy claim. II. Superiority
Finally, the Court turns to whether a class action is superior to other methods for the adjudication of the proposed class’ claims. See Szabo, 249 F.3d at 676. In short, the difficulties in managing the plaintiff-specific issues in the proposed class work against Siegel establishing the superiority requirement under Rule 23(b)(3). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164, 94 S.Ct. 2140 (1974) (manageability considerations encompass “range of practical problems that may render the class action format inappropriate for a particular suit.”); see also

9

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Fed.R.Civ.P. 23(b)(3)(D). As the Seventh Circuit explains, although “the need for individual damages determinations does not, in and of itself, require denial of his motion for certification,” see Arreola, 546 F.3d at 801, “if the class certification only serves to give rise to hundreds or thousands of individual proceedings requiring individually tailored remedies, it is hard to see how common issues predominate or how a class action would be the superior means to adjudicate the claims.” Andrews, 545 F.3d at 577. Accordingly, Siegel has failed in his burden of establishing the superiority requirement under Rule 23(b)(3).
CONCLUSION For these reasons, the Court denies Plaintiff’s Second Amended Motion For Class Certification pursuant to Federal Rule of Civil Procedure 23 and denies Defendants’ Motion to Exclude Plaintiff’s Expert as moot. Dated: February 23, 2009
ENTERED
_____________________________ AMY J. ST. EVE United States District Judge

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Exhibit 3

Case: 1:08-cv-06946 Document #: 75 Filed: 05/10/10 Page 26 of 35 PageID #:611
1

1

IN THE UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

3

4

CATHERINE ZABOROWSKI and

)

SIMONE JACKSON,

)

5

individually and on behalf )

of a class,

)

6

)

Plaintiffs,

)

7

)

vs.

) No. 08 C 6946

8

)

SHERIFF OF COOK COUNTY and )

9

COOK COUNTY, ILLINOIS,

)

)

10

Defendants.

)

11

12

13

14

The deposition of GARY HICKERSON,

15

called for examination, taken pursuant to

16

notice and pursuant to the Federal Rules of

17

Civil Procedure for the United States District

18

Courts pertaining to the taking of depositions,

19

taken before Kathleen P. Lipinski, Certified

20

Shorthand Reporter and Notary Public, at 500

21

Daley Center Chicago, Illinois, commencing at

22

10:15 o'clock a.m. on the 9th day of July,

23

A.D., 2009.

24

TOOMEY REPORTING (312) 853-0648

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2

1

APPEARANCES:

2

Mr. Thomas G. Morrissey

(Thomas Morrissey, Ltd.)

3

10249 South Western Avenue

Chicago, Illinois 60643

4

Phone: (773) 233-7900

5

On behalf of the Plaintiffs;

6

Mr. Ronald Weidhuner

7

(State's Attorney of Cook County, Illinois

Civil Actions Bureau)

8

500 Daley Center

69 West Washington

9

Chicago, Illinois 60602

Phone: (312) 603-5527

10

On behalf of the Defendant.

11

12

13

14

ALSO PRESENT: Lindsey Scarpino,

Lindsey Shapiro, John Braves.

15

16

17

18

19

20

21

22

23

24

TOOMEY REPORTING (312) 853-0648

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3

1

I N D E X

2

WITNESS

PAGE

3

GARY HICKERSON

4

Direct Examination by Mr. Morrissey

04

5

Cross-Examination by Mr. Weidhuner

53

6

Redirect Examination by Mr. Morrissey 56

7

8

9

10

11

12

13

E X H I B I T S

14

HICKERSON DEPOSITION EXHIBIT

PAGE

15

No. 1

10

16

No. 2

10

17

No. 3

16

18

No. 4

29

19

20

21

22

23

24

TOOMEY REPORTING (312) 853-0648

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4

1

(WHEREUPON, documents marked

2

Hickerson Deposition Exhibit

3

Nos. 1-5, for identification.)

4

(WHEREUPON, the witness was

5

duly sworn.)

6

MR. MORRISSEY: This is a discovery

7

deposition pursuant to Rule 30(b)(6) in regards

8

to the practices and procedures of the Sheriff

9

of Cook County in regards to restraining and/or

10

shackling women that are pregnant and are

11

brought to a hospital.

12

The preliminary question is, Ron, are

13

you producing Superintendent Hickerson pursuant

14

to the Rule 30(b)(6) --

15

MR. WEIDHUNER: Yes.

16

WHEREUPON:

17

GARY HICKERSON,

18

called as a witness herein, having been first

19

duly sworn, was examined and testified as

20

follows:

21

DIRECT EXAMINATION

22

BY MR. MORRISSEY:

23

Q. Superintendent, you've been deposed

24

before in other matters, I'm sure, correct?

TOOMEY REPORTING (312) 853-0648

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41

1

BY MR. MORRISSEY:

2

Q. After October of 2008 for women that

3

were assigned to the MOMs program that were

4

hospitalized for purposes of childbirth, were

5

they shackled?

6

A. I don't know.

7

Q. In August of 2008, what reason were

8

women that were assigned to the MOMs program,

9

what reason did you assign a guard to watch

10

women that were assigned to the MOMs program

11

that were hospitalized for the purpose of

12

delivering a child?

13

A. They were -- We were instructed by the

14

receiving and/or records department that this

15

was our inmate. "Ours" being the Department of

16

Corrections. And when it's a Department of

17

Corrections inmate, we follow the procedures

18

that we have for a Department of Corrections

19

inmate.

20

Q. Who instructed you from the RCDC that

21

a woman that was in the MOMs program in August

22

of 2008 who was hospitalized for the purpose of

23

delivering a child needed to be shackled?

24

A. Whoever took that information. We

TOOMEY REPORTING (312) 853-0648

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42

1

have hospital takeovers all the time. It

2

happens every day and we always get information

3

from a different records officer that this is

4

now our prisoner. We are to send an officer on

5

that prisoner.

6

Q. What type of log do you maintain in

7

regards to -- log from the -- concerning

8

information from the records office or the RCDC

9

that External Operations is to take over the

10

information for a hospitalized detainee?

11

A. That information should be in the

12

External Operations shift commander's office in

13

a logbook.

14

Q. Would it be correct to state that

15

after October of -- strike that -- that from

16

the time you became External Operations chief

17

in August of 2008 to the time you left, that

18

the procedures and practices in regards to

19

women that came from Division 3 to the hospital

20

who were brought to the hospital for purposes

21

of delivering a child remained the same?

22

A. Correct.

23

Q. During the time you were External

24

Operations superintendent from August of 2008

TOOMEY REPORTING (312) 853-0648

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43

1

up to you said May of 2009?

2

A. Yes, sir.

3

Q. If a woman from Division 3 was brought

4

to a hospital for the purpose of childbirth, a

5

correctional officer would be assigned to her

6

room, correct?

7

A. Correct.

8

Q. And the correctional officer would

9

have a gun, correct?

10

A. Yes.

11

Q. The woman from Division 3 that is

12

pregnant and was brought to the hospital for

13

purposes of childbirth would be shackled in a

14

room, correct?

15

A. Correct.

16

Q. And her leg -- one leg would be

17

shackled to the bed, correct?

18

A. Yes, sir.

19

Q. And a hand would be shackled to the

20

bed?

21

A. Cuffed to the bed.

22

Q. Cuffed to the bed?

23

A. Yes, sir.

24

Q. The guard that's sitting in the room,

TOOMEY REPORTING (312) 853-0648

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44

1

the armed guard that's sitting in the room,

2

under the practice and policy of the Sheriff

3

would be required to shackle the female to her

4

bed, correct?

5

A. Yes.

6

Q. The female who was pregnant and at the

7

hospital from Division 3 for purposes of giving

8

birth would remain shackled pursuant to the

9

practice of the Sheriff up until the point

10

there was a direction from a doctor, correct?

11

A. Yes.

12

Q. If and when a medical doctor

13

instructed the guard assigned to the hospital

14

room to remove the shackles, there would be a

15

practice of -- Strike that. Let me shorten it.

16

MR. WEIDHUNER: Why don't you, because

17

this has all been asked and answered, Tom.

18

BY MR. MORRISSEY:

19

Q. For a woman that's in Division 3

20

that's hospitalized, the guard upon notice or

21

an order -- receiving an order from a doctor

22

would have to contact his or her supervisor in

23

regards to the doctor's order to remove the

24

shackles, correct?

TOOMEY REPORTING (312) 853-0648

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45

1

A. Yes.

2

Q. Only after the guard received approval

3

from his or her supervisor would the guard then

4

remove the shackles from the woman in

5

Division 3 that is hospitalized for purposes of

6

delivering a child?

7

A. Unless it was an emergency.

8

Q. As the Rule 30(b)(6) designated

9

deponent, you're here to -- As the

10

Rule 30(b)(6) deponent, do you know whether or

11

not the procedures have changed at all since

12

you left External Operations in May of 2009

13

concerning the shackling of pregnant women from

14

Division 3 at the hospital?

15

A. I don't know.

16

Q. Currently who is the Superintendent of

17

External Operations?

18

A. Thomas Snooks.

19

Q. How do you spell his name?

20

A. S-n-o-o-k-s.

21

Q. Do you personally know how many women

22

from Division 3 gave birth to children during

23

the period from August of 2008 up to May of

24

2009?

TOOMEY REPORTING (312) 853-0648

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CERTIFICATE OF SERVICE
I hereby certify that on the 10th day of May, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system Smith, ASA, 500, Daley Center, Chicago, IL 60602, and I hereby cerwhich will send notification of such filing to the following: Patrick S. tify 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) an attorney for plaintiffs

 
 Order Form (01/2005) Case: 1:08-cv-06946 Document #: 97 Filed: 06/22/10 Page 1 of 4 PageID #:709
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Amy J. St. Eve

Sitting Judge if Other than Assigned Judge

08 C 6946

DATE

6/22/2010

Zaborowski et al vs. Sheriff of Cook County et al.

DOCKET ENTRY TEXT
The Court grants Plaintiffs' Second Motion for Class Certification [76]. The Court will not entertain any motions for reconsideration as to this order because the parties have had ample opportunity to make their arguments.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT

On January 28, 2009, Plaintiffs Catherine Zaborowski and Simone Jackson, on behalf of a class, filed an Amended Complaint alleging that Defendants Sheriff of Cook County and Cook County, Illinois have an unconstitutional policy pertaining to pregnant women in custody. See 42 U.S.C. § 1983. On December 9, 2009, the Court denied Plaintiffs’ motion for class certification. The Court presumes familiarity with its December 9, 2009 order. In addition, on March 23, 2010, the United States Court of Appeals for the Seventh Circuit denied Plaintiffs’ Federal Rule of Civil Procedure 23(f) petition for permission to appeal the Court’s December 9, 2009 class certification order. Before the Court is Plaintiffs’ Second Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. For the following reasons, the Court grants Plaintiffs’ motion. The Court will not entertain any motions for reconsideration as to this Second Motion for Class Certification because the parties have had ample opportunity to make their arguments.
BACKGROUND
In their Amended Complaint, Plaintiffs allege that Zaborowski entered the Cook County Jail on June 3, 2008 and that Jackson entered the Jail on November 23, 2007. (R. 13-1, Amend. Compl. ¶ 4.) At the time they entered the Cook County Jail, both Zaborowski and Jackson were pregnant. (Id. ¶ 5.) Plaintiffs further allege that they were transferred from the Cook County Jail to the Sheriff’s “MOM’s” program, which is an off-site, residential treatment program run by the Haymarket Center. (Id. ¶ 6.)

Courtroom Deputy

KF

Initials:

08C6946 Zaborowski et al vs. Sheriff of Cook County et al.

Page 1 of 4

Case: 1:08-cv-06946 Document #: 97 Filed: 06/22/10 Page 2 of 4 PageID #:710
Zaborowski went into labor on August 29, 2008, and her counselor from the Haymarket Center transported her to Stroger Hospital. (Id. ¶ 7.) Plaintiffs allege that following Zaborowski’s arrival at Stroger Hospital, and in accordance with the Sheriff’s alleged policy, deputy sheriffs shackled Zaborowski’s hand and foot to the hospital bed. (Id. ¶ 8.) Zaborowski remained shackled hand and foot to the hospital bed for about eleven hours while she was in labor. (Id. ¶ 9.) An armed deputy sheriff remained in the hospital room during that time. (Id.) Immediately before giving birth, the attending physician requested that the deputy sheriff unshackle Zaborowski’s foot. (Id. ¶ 10.) The deputy sheriff complied with the doctor’s request and Zaborowski was shackled to the bed by one arm when she delivered her child on August 30, 2008. (Id.) Plaintiffs further allege that in accordance with the Sheriff’s policy, the deputy sheriff then re-shackled Zaborowski’s foot about an hour after she gave birth. (Id. ¶ 11.) Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. (Id. ¶ 12.) During this time period, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk. (Id.)

After Jackson went into labor on May 3, 2008, her counselor from the Haymarket Center took her to Stroger Hospital. (Id. ¶ 13.) Following her arrival at Stroger Hospital, and in accordance with the Sheriff’s alleged policy, deputy sheriffs shackled Jackson’s hand and foot to the hospital bed. (Id. ¶ 14.) Jackson remained shackled hand and foot while she was in labor and during birth. (Id. ¶ 15.) An armed deputy sheriff remained in the hospital room while she was in labor and delivered her child. (Id.) Jackson remained at Stroger Hospital for approximately four days during which Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk per the Sheriff’s policies. (Id. ¶ 16.)

In the present motion for class certification, Plaintiffs seek to certify the following class: “All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following delivery.” (R. 76-1, Mot. Class Cert., at 1.) Plaintiffs’ counsel further explains that they were mistaken in their belief that each class member should receive a separate damages determination as counsel argued in the first class certification motion. (Id. at 2.) Instead, Plaintiffs seek class certification to adjudicate both liability and damages for all class members. (R. 75-1, Pls.’ Mem., at 2.) To clarify, one of the Court’s concerns when denying Plaintiffs’ first class certification motion was the named Plaintiffs’ conflicts in representing the putative class members if the Court were to allow approximately 50 subsequent lawsuits to determine each class member’s damages. Plaintiffs now maintain that the damages in each case can be established through several separate proceedings in the instant lawsuit or through settlement. (Id. at 10.)

LEGAL STANDARD

As the Supreme Court recently explained, Federal Rule of Civil Procedure 23 “[b]y its terms [] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 130 S.Ct. 1431, 1437 (2010). “[T]he primary purposes of the class-action mechanism” are “judicial economy and efficiency.” Andrews v. Chevy Chase Bank, 545 F.3d 570, 577 (7th Cir. 2008). To that end, Rule 23(a) states that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a); see also Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009). Failure to meet any of these Rule 23(a) requirements precludes class certification. See Harper, 581 F.3d at 513; Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008).

In addition to satisfying the requirements under Rule 23(a), a party seeking class certification must also establish that the proposed class satisfies one of the requirements set forth in Rule 23(b). See Amchem Prods.,

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Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Arreola, 546 F.3d at 794. Here, Plaintiffs request certification of the proposed class pursuant to Rule 23(b)(3), which applies when “the questions of law 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.P. 23(b)(3); see also Amchem Prods., 521 U.S. at 615-16.
The party seeking class certification has the burden of establishing that certification is proper. See Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). In determining whether a party has carried that burden, a court need not accept all of the complaint’s allegations as true. See Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Instead, in deciding whether to certify a class, the Court “should make whatever factual and legal inquiries [that] are necessary under Rule 23.” Id. at 676; see also General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (courts may “probe behind the pleadings before coming to rest on the certification question”).
ANALYSIS
In the December 9, 2009 order, the Court concluded that Plaintiffs fulfilled the numerosity, commonality, and typicality requirements under Rule 23(a)(1)-(3). Plaintiffs’ new motion for class certification does not change the Court’s analysis as to these three requirements. In addition, Plaintiffs’ new proposal eliminates the previous conflict of interest concerns under the adequacy requirement pursuant to Rule 23(a)(4).1 Thus, the Court turns to the superiority and predominance requirements under Rule 23(b)(3).
Under Rule 23(b)(3), the Court must determine if (1) the questions of law or fact common to the class members predominate over questions affecting only the individual class members, and (2) a class action is superior to other available methods of adjudicating plaintiffs’ claims. See Amchem Prods., 521 U.S. at 615; Andrews, 545 F.3d at 577. Rule 23(b)(3) includes a non-exhaustive list of factors for courts to consider regarding the predominance and superiority criteria:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Amchem Prods, Inc., 521 U.S. at 615-16; see also Szabo, 249 F.3d at 676 (“Questions such as these require the exercise of judgment and the application of sound discretion”).
I. Predominance
Rule 23(b)(3)’s predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. Although the predominance requirement is similar to Rule 23(a)’s typicality and commonality requirements – which Plaintiffs have fulfilled – it is more demanding. See id. at 623-24; Puffer v. Allstate Ins. Co., 255 F.R.D. 450, 471 (N.D. Ill. 2009). To clarify, if a

1 The Court rejects Defendants’ argument that Plaintiffs’ counsel are not sufficiently competent to manage this class action as baseless. In the context of counsels’ conduct in connection with the May 11, 2010 settlement conference, Defendants’ motion for attorney’s fees is in front of Magistrate Judge Valdez. (R. 82-1.)

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putative class challenges a uniform policy, the policy’s validity tends to be the predominant issue in the litigation. See Falcon, 457 U.S. at 159 n. 15; CE Design Ltd. v. Cy’s Crabhouse North, Inc., 259 F.R.D. 135, 142 (N.D. Ill. 2009); see also Cicilline v. Jewel Food Stores, Inc., 542 F.Supp.2d 831, 838 (N.D. Ill. 2008) (“Class certification is usually considered a superior method of adjudicating claims involving standardized conduct, even if there are individual issues that exist among class members”).

Although Plaintiffs are challenging the Sheriff’s uniform shackling policy, Defendants nevertheless argue that there is a need for individualized proof based on the duration of each plaintiff’s restraint, the different ways plaintiffs were restrained, and the time period of the restraint. First, “the need for individual proof alone does not necessarily preclude class certification.” Pella Corp. v. Saltzman, ___ F.3d ___, 2010 WL 1994653, at *3 (7th Cir. May 20, 2010) (per curiam). Second, Defendants’ arguments go to damages and causation issues and not the underlying question of liability, namely, whether the Sheriff’s shackling policy is unconstitutional. If – later in the proceedings – the Court determines that this liability question involves individualized determinations, Defendants may move to de-certify the class. At this stage of the proceedings, however, Plaintiffs have satisfied the requirement that Plaintiffs and the putative class members share common questions of law making class-wide adjudication efficient compared to repetitive individual litigation on the same liability question. See Lemon v. International Union of Operating Eng’rs, 216 F.3d 577, 581 (7th Cir. 2000).

II. Superiority

When considering whether a class action would be superior to other forms of adjudication, a central question is that of manageability. See Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000). “[T]his consideration encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

Here, the obvious manageability problem is the question of the class member’s individual damages. As the Seventh Circuit teaches, Rule 23 allows courts to devise solutions to individual damages issues, including appointing a magistrate judge to preside over the damages proceedings, creating subclasses, or decertifying the class after the Court resolves liability issues. See Arreola, 546 F.3d at 801; Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). Also, there is a possibility that the parties may negotiate a settlement as to the individual plaintiff’s damages. See Carnegie, 376 F.3d at 661. Accordingly, the Court’s initial manageability concerns pertaining to the 50 subsequent lawsuits are no longer at issue, especially in light of Plaintiffs’ proposal that only a handful of damages proceedings will be necessary. See Cicilline, 542 F.Supp.2d at 838.

Meanwhile, Defendants’ argument that the class action is not superior because the potential damages are not nominal is without merit because Rule 23(b)(3) does not exclude cases in which individual damages may run high. See Amchem Prods., 521 U.S. at 617. Indeed, if “a few class members’ injuries prove to be substantial, they may opt out and litigate independently.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006). Thus, the fact that Plaintiffs’ damages may be more than nominal, alone, does not defeat Plaintiffs’ class certification motion.

Finally, Defendants take umbrage with the fact that after the Court denied Plaintiffs’ class certification motion on December 9, 2009, Plaintiffs’ counsel filed additional lawsuits challenging the Sheriff’s shackling policy on behalf of other plaintiffs. Counsels’ filing of these additional lawsuits was based on statute of limitations concerns. See Vitiritti v. Dart, No. 09 C 7792, 2010 WL 1418578, at *1 (N.D. Ill. Apr. 6, 2010) (statute of limitations tolls class action lawsuit from filing date through date class certification denied). Therefore, Defendants’ argument based on these additional lawsuits is unavailing, especially because these plaintiffs are now class members in the present lawsuit.

08C6946 Zaborowski et al vs. Sheriff of Cook County et al.

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 Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 1 of 31 PageID #:898

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

Catherine Zaborowski and Simone Jackson, )

individually and on behalf of a class, Nicole )

Blair, Lisa Brown, Danielle Bryant, Isabel )

Carmona, Mariane Cruz, Jennifer Farrar,

)

Cora Fletcher, Denae Johnson, Deborah Lee, )

Felicia Ligon, Angela Oss, Sheena

)

Richardson, Bennetta Sidney, Monique

)

Starnes, and Latania Walton,

) No. 08 CV 6946

)

Plaintiffs,

)

) (Judge St. Eve)

-vs-

)

)

Sheriff of Cook County and Cook County,

)

Illinois,

)

)

Defendants.

)

SECOND AMENDED COMPLAINT

Pursuant to leave of Court, plaintiffs file this second amended

complaint and, by counsel, allege 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 and 28 U.S.C.

§1367.

2. Plaintiffs Catherine Zaborowski, Simone Jackson, Nicole Blair,

Lisa Brown, Danielle Bryant, Isabel Carmona, Mariane Cruz, Jennifer

Farrar, Cora Fletcher, Denae Johnson, Deborah Lee, Felicia Ligon,

Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, and

Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 2 of 31 PageID #:899
Latania Walton are residents of the Northern District of Illinois. As set out below with greater specificity, each plaintiff was in the custody of the Sheriff of Cook County immediately before and immediately after she gave birth at Stroger Hospital.
3. Defendants are Thomas J. Dart, the Sheriff of Cook County, and Cook County, Illinois. The Sheriff is sued in his individual and official capacity, as set out below with greater specificity. Plaintiffs join the County pursuant to Carver v. Sheriff of LaSalle County, 324 F. 3d 947 (7th Cir. 2003).
4. Defendant Dart became the Sheriff of Cook County in 2006 and oversees nearly 10,000 detainees and 3,000 correctional officers at the Cook County Jail.
5. Dart has at all times been personally involved in the formulation and implementation of policies at the Cook County Jail.
a. Upon taking office as Sheriff, Dart instituted changes at the Cook County Jail, installing new technologies, including introducing body-scanning machines to prevent contraband from getting inside, while also raising standards for employment.
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b. Shortly after taking office in December of 2006, Dart began to conduct weekly “accountability meetings,” during which all high ranking Jail staffers are required to give detailed reports on activities in their respective divisions of the Jail.
c. Under the direction of defendant Dart, a “Weapons Free Committee” was formed at the Jail to collect, inventory, and analyze all inmate-made shanks and weapons with the goal of reducing inmate and staff injuries.
d. In 2007, defendant Dart formed a “blue ribbon” committee of former U.S. Attorneys and other legal and law enforcement experts to evaluate the Sheriff’s internal affairs operations.
e. Dart selected and hired a consultant to train correctional officers on how to better recognize and supervise inmates with mental health issues.
f. Before Dart became Sheriff, detainees were not permitted to have contact visits with their minor children. Dart changed this policy in May of 2008, when he authorized contact visits between female detainees and their children.
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g. Dart has been personally involved in the operation of the 13,000 square foot garden located on the grounds of the Cook County Jail that is used to train detainees.
6. At the same time that he adopted and implemented the above described progressive policies, defendant Dart permitted the continuation of an official policy (hereinafter “shackling policy”) requiring correctional officers to shackle pregnant woman, who are in the custody of the Sheriff of Cook County, before, during, and immediately after labor and delivery.
7. Defendant Dart’s shackling policy implements a barbaric practice that needlessly inflicts excruciating pain and humiliation:
a. Shackling a pregnant woman during and immediately after the birthing process poses an obvious and substantial risk of harm to the woman’s health and safety.
b. A pregnant woman who is shackled during the birthing process will often soil her bedsheets, causing actual discomfort and humiliation and subjecting the woman to a serious risk of infection.
c. A woman who is shackled during labor is unable to move to allay the pains of labor, and will often incur bruising from the shackles and experience a loss of dignity. -4-

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8. Defendant Dart has enforced his shackling policy in willful and
wanton disregard of the laws of the State of Illinois: At all times relevant,
there has been in force and effect an Illinois statute, compiled as 55 ILCS
5/3-15003.6, that provides as follows:
Pregnant female prisoners. Notwithstanding any other statue, directive, or administrative regulation, when a pregnant female prisoner is brought to a hospital form a County Department of Corrections facility for the purpose of delivering her baby, no handcuffs, shackles, or restraints of any kind may be used during her transport to a medical facility for the purpose of delivering her baby. Under no circumstances may leg irons or shackles or waist shackles be used on any pregnant female prisoner who is in labor. Upon the pregnant prisoner’s entry to the hospital delivery room, a county correctional officer must be posted immediately outside the delivery room. The Sheriff must provide for adequate personnel to monitor the pregnant female prisoner during her transport to and from the hospital and during her stay at the hospital. 9. Defendant Dart has enforced his shackling policy in deliberate
indifference to the laws of the United States:
a. Defendant Dart’s shackling policy violates the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (the “Torture Convention”),
G.A. Res. 46, 39 U.N. GAOR Supp. (No. 51), U.N. Doc.
A/39/51 (1984). The United States ratified this treaty in
1994.
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b. Defendant Dart’s shackling policy also violates the International Covenant on Civil and Political Rights (the “ICCPR”), GA res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at art. 7, U.N. Doc. A/6316 (1966). The United States ratified this treaty in 1992.
10. Defendant Dart has enforced his shackling policy in deliberate indifference to clearly established federal law:
a. In 1980, the United States Court of Appeals for the Seventh Circuit held that it was settled law that pretrial detainees may not be shackled without a good penological or medical reason.
b. At some time after December 1, 2007, defendant Dart learned that the widespread practice at the Cook County Jail was that pregnant female detainees would be i. Shackled while being transported to a hospital for labor and delivery, and/or ii. Shackled during labor and delivery; and/or iii. Shackled during recovery after labor,
11. After learning of the widespread shackling practices referred to above, defendant Dark knew that unlawful and unconstitutional policies
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were being applied to pregnant female detainees in his custody before, during, and after childbirth.
12. Notwithstanding his actual knowledge that unlawful and unconstitutional policies were being applied to pregnant female detainees in his custody before, during, and after childbirth, defendant Dart sought to conceal the unlawful policy by making false public statements that shackling was necessary because many female detainees have escaped from custody during childbirth. Dart also made the false public statement that shackling a detainee before, during, and after childbirth conforms to Illinois law.
13. Defendant Dart delayed for more than one year in taking remedial action after he learned that unlawful and unconstitutional shackling policies were being applied to pregnant female detainees in his custody before, during, and after childbirth. As set out below with greater specificity, plaintiffs Blair, Brown, Bryant, Carmona, Cruz, Farrar, Fletcher, Johnson, Lee, Ligon, Oss, Richardson, Sidney, Starnes, and Walton were each subjected to the shackling policy because of defendant Dart’s failure to intervene and take action to correct the unlawful policy after he acquired personal knowledge that, notwithstanding clearly settled
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federal law and the unambiguous state statute, female detainees were being shackled before, during, and after childbirth.
The Class Claim and the Class Representatives
14. Plaintiff Zaborowski entered the Cook County Jail on June 3, 2008; plaintiff Jackson entered the Jail on November 23, 2007.
15. Zaborowski and Jackson were each pregnant when she entered the jail.
16. Pursuant to the policies of defendant Sheriff, Zaborowski and Jackson were each transferred from the Jail to the Sheriff’s “MOM’s” program, an off-site, residential treatment program run by the Haymarket Center.
17. Plaintiff Zaborowski went into labor on August 29, 2008 and was taken by a counselor from the Haymarket Center to Stroger Hospital. Zaborowski was not handcuffed or otherwise restrained while she was being taken to the hospital.
18. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Zaborowski hand and foot to a hospital bed.
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19. Plaintiff Zaborowski remained shackled hand and foot to the hospital bed for about eleven hours while she was in labor. An armed deputy sheriff remained in the hospital room while plaintiff was in labor.
20. Immediately before the birth, the attending physician requested the deputy sheriff to unshackle plaintiff Zaborowski’s foot. The deputy complied with this request and Zaborowski was shackled to the bed by one arm when she delivered her child at about 8:15 a.m. on August 30, 2008.
21. In accordance with the policies of defendants, the deputy sheriff re-shackled plaintiff Zaborowski’s foot about an hour after the birth.
22. Plaintiff Zaborowski remained at Stroger Hospital until the evening of the next day, September 1, 2008. During this period, and as required by defendants’ policies, Zaborowski was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk
23. Plaintiff Jackson went into labor on May 3, 2008 and was taken by her counselor from the Haymarket Center to Stroger Hospital. Jackson was not handcuffed or otherwise restrained while she was being taken to the hospital.
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24. Following her arrival at Stroger Hospital, and in accordance with the policies of defendants, deputy sheriffs shackled plaintiff Jackson hand and foot to a hospital bed.
25. Plaintiff Jackson remained shackled hand and foot to the hospital bed while she was in labor and during birth. An armed deputy sheriff remained in the hospital room while plaintiff was in labor and was present when plaintiff delivered her child while shackled.
26. Plaintiff Jackson remained at Stroger Hospital for about four days. During this period, and as required by defendants’ policies, Jackson was shackled hand and foot to the hospital bed and was not permitted to use the toilet or to get up from the bed to walk.
27. Jackson and Zaborowski were each deprived of rights secured by the Fourth, Eighth, and Fourteenth Amendment to the Constitution of the United States by defendant Dart’s above described shackling policy.
28. Jackson and Zaborowski were each damaged as the direct and proximate result of defendant Dart’s failure and or refusal to implement the above referred Illinois statute.
29. As a direct and proximate result of defendant Dart’s shackling policy, and by defendant Dart’s failure and or refusal to implement the above referred Illinois statute, plaintiffs and all other persons subjected to
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the above referred policy were unreasonably restrained, subjected to punishment, incurred great emotional and physical pain and suffering.
30. Plaintiffs Jackson and Zaborowski bring this action individually and for all women in the custody of defendant Sheriff who, in the two year period preceding the filing of this lawsuit, were shackled during labor and after delivery. The class claim, which is asserted against defendant Dart in his official capacity only, satisfies each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure and has been allowed to proceed as a class action under Rule 23(b)(3).
THE INDIVIDUAL LIABILITY CLAIMS
31. Plaintiffs Nicole Blair, Lisa Brown, Danielle Bryant, Isabel Carmona, Mariane Cruz, Jennifer Farrar, Cora Fletcher, Denae Johnson, Deborah Lee, Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, and Latania Walton are all members of the class represented by Jackson and Zaborowski. In addition to the claim asserted by the class against defendant Dart in his official capacity, plaintiffs Blair, Brown, Bryant, Carmona, Cruz, Farrar, Fletcher, Johnson, Lee, Ligon, Oss, Richardson, Sidney, Starnes, and Walton seek to impose liability on defendant Dart in his individual capacity for his deliberate indifference in delaying for more than one year in taking remedial action after he learned
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that unlawful and unconstitutional shackling policies were being applied to pregnant female detainees in his custody before, during, and after childbirth. Dart’s failure to intervene and stop the unlawful practice was a proximate cause of the unlawful shackling of these plaintiffs.
Nicole Blair
32. Plaintiff Nicole Blair was admitted to the Cook County Jail as a pre-trial detainee on or about January 30, 2008.
33. Blair was pregnant when she was admitted to the jail. 34. Blair was transported to Stroger Hospital from the Cook County Jail on May 19, 2008 at the direction of a physician at the jail. 35. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Blair by hand and foot while she was being transported to the hospital. 36. Blair remained at Stroger Hospital until May 21, 2008. 37. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Blair to remain shackled to a hospital bed until shortly before she delivered her child. 38. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff re-shackled Blair following the birth of her child.
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39. As required by defendant Dart’s “shackling policy,” and notwithstanding requests of physicians at Stroger Hospital, a Deputy Sheriff required Blair to remain shackled at all times until she left Stroger Hospital.
40. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Blair was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Lisa Brown
41. Plaintiff Lisa Brown was admitted to the Cook County Jail as a pre-trial detainee on or about May 12, 2008.
42. Brown was pregnant when she was admitted to the jail. 43. Brown was transported to Stroger Hospital from the Cook County Jail on or about May 27, 2008 at the direction of a physician at the jail. 44. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Brown by hand and foot while she was being transported to the hospital. 45. Brown remained at Stroger Hospital until May 31, 2009.
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46. As permitted by defendant Dart’s “shackling policy,” a Deputy Sheriff required Brown to remain shackled to a hospital bed while she delivered her child.
47. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Brown to remain shackled until she left Stroger Hospital on May 31, 2008.
48. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Brown was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Danielle Bryant
49. Plaintiff Danielle Bryant was admitted to the Cook County Jail as a pre-trial detainee on or about August 9, 2008.
50. Bryant was pregnant when she was admitted to the jail. 51. Pursuant to the policies and/or practices of defendant Sheriff, Bryant was transferred to the Sheriff’s “MOM’s” program sometime before September 22, 2008. 52. Bryant went into labor on September 22, 2008 and was taken by a counselor from the Haymarket Center to Stroger Hospital. Bryant was not handcuffed or otherwise restrained while she was taken to the hospital.
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53. At the hospital, and as required by defendant Dart’s shackling policy, a deputy sheriff shackled Bryant’s foot to the hospital bed.
54. Bryant’s foot remained shackled to the hospital bed for approximately twelve hours while she was in labor. An armed deputy sheriff remained in the hospital room while Bryant was in labor.
55. Immediately before the birth of Bryant’s child at about 8:00 a.m. on September 23, 2008, a deputy sheriff unshackled Bryant’s leg. The deputy sheriff re-shackled Bryant to the bed shortly after the birth of her child.
56. After the delivery of her child, Bryant was removed from the labor and delivery room and assigned to a room within the hospital. There, as required by defendant Dart’s policies, Bryant was shackled by hand and foot to the bed.
57. Bryant remained at the hospital until the evening of September 25, 2008. With the exception of brief periods when she was feeding her baby, Bryant was shackled by hand and foot to the hospital bed.
Isabel Carmona
58. Plaintiff Isabel Carmona was admitted to the Cook County Jail as a pre-trial detainee on or about March 8, 2008.
59. Carmona was pregnant when she was admitted to the jail. -15-

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60. Carmona was transported to Stroger Hospital from the Cook County Jail on April 9, 2008 at the direction of a physician at the jail.
61. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Carmona by hand and foot while she was being transported to the hospital.
62. Carmona remained at Stroger Hospital until April 11, 2008. 63. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Carmona to remain shackled to a hospital bed until shortly before she delivered her child. 64. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff re-shackled Carmona following the birth of her child. 65. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Carmona to remain shackled until she left Stroger Hospital. 66. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Carmona was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Mariane Cruz
67. Plaintiff Mariane Cruz was admitted to the Cook County Jail as a pre-trial detainee on or about April 8, 2009.
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68. Cruz was pregnant when she was admitted to the jail. 69. Cruz began to exhibit symptoms of preterm labor on or about April 10, 2009; at the direction of a physician at the jail, Cruz was transported to Stroger Hospital at about 1:00 a.m. on or about April 11, 2009. 70. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Cruz by hand and foot while she was being transported to the hospital. 71. Cruz remained at Stroger Hospital until on or about April 13, 2009, where she received treatment to stop her labor. 72. As required by defendant Dart’s “shackling policy,” and notwithstanding requests of physicians at Stroger Hospital, a Deputy Sheriff required Cruz to remain shackled to a hospital bed during the entirety of her stay at the hospital. 73. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Cruz was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Jennifer Farrar
74. Plaintiff Jennifer Farrar was processed into the Cook County Jail as a pretrial detainee on November 24, 2008.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 18 of 31 PageID #:915
75. At the time she was processed into the jail, Farrar was enrolling in and receiving daily methadone from a treatment program.
76. While being processed into the Jail on November 24, 2008, Farrar informed intake personnel that she was pregnant and that she was receiving methadone on a daily basis from a methadone program.
77. As a result of the Sheriff’s policies at issue in Parish v. Sheriff, 07 CV 4369, Farrar did not receive methadone until November 29, 2009 and suffered withdrawal symptoms which included vomiting, sweating, cramps, and headaches. (Farrar is a member of the plaintiff class in the Parish litigation and does not seek to litigate in this action the claim that is at issue in Parish.
78. On January 7, 2009, jail personnel transported Farrar to the Rolling Meadows Courthouse.
79. In the course of the aforesaid court appearance, Farrar went into labor and was transported by ambulance to a hospital. As required by defendant Dart’s policy, Farrar’s hand and foot were shackled while she was being transported to the hospital.
80. Farrar was admitted to the hospital on January 7, 2009 and assigned to a labor and delivery room.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 19 of 31 PageID #:916
81. While in the labor and delivery room, as required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Farrar by hand and foot to the hospital bed.
82. Farrar remained shackled in the labor and delivery room. Farrar ‘s leg was unshackled shortly before delivery; plaintiff’s hand, however, remained shackled to the bed during the delivery.
83. As required by defendant Dart’s “shackling policy,” Farrar remained shackled during recovery following childbirth and at all times thereafter while she remained at the hospital.
Cora Fletcher
84. Plaintiff Cora Fletcher was admitted to the Cook County Jail as a pre-trial detainee on or about May 7, 2008.
85. Fletcher was pregnant when she was admitted to the jail. 86. Fletcher was transported to Stroger Hospital from the Cook County Jail on May 16, 2008 at the direction of a physician at the jail. 87. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Fletcher by hand and foot while she was being transported to the hospital. 88. Fletcher remained at Stroger Hospital from May 16, 2008 until May 20, 2008.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 20 of 31 PageID #:917
89. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Fletcher to remain shackled to a hospital bed while she was at Stroger Hospital on May 16, 2008.
90. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Fletcher to remain shackled to a hospital bed while she was at Stroger Hospital on May 17, 2008.
91. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Fletcher to remain shackled to a hospital bed for all save 45 minutes on May 18, 2008: the Deputy permitted Fletcher to leave the hospital bed and use a washroom for 15 minutes and unshackled plaintiff for 30 minutes while she received a gynecological examination. Fletcher remained shackled to a hospital bed for the remainder of the day on May 18, 2008.
92. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Fletcher to remain shackled to a hospital bed for all save 10 minutes on May 19, 2008.
93. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Fletcher to remain shackled to a hospital bed until she was discharged from the hospital on May 20, 2008.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 21 of 31 PageID #:918
94. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Fletcher was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Denae Johnson
95. Plaintiff Denae Johnson was admitted to the Cook County Jail on or about June 9, 2008.
96. Johnson was pregnant when she was admitted to the jail and was assigned to the Sheriff’s “Mom’s” program, a residential treatment program conducted outside of the Cook County Jail.
97. On June 10, 2008, Johnson was taken to Stroger Hospital for a medical appointment by a counselor from the Mom’s program. Johnson was not handcuffed or otherwise restrained while being transported to the hospital.
98. The counselor remained with Johnson until plaintiff gave birth at about 9:00 a.m. on June 10, 2008.
99. Following the birth of her child, and as permitted or required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Johnson to remain shackled until she left Stroger Hospital on or about June 13, 2008.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 22 of 31 PageID #:919
Deborah Lee
100. Plaintiff Deborah Lee was pregnant when she was admitted to the jail.
101. Lee went into labor on June 1, 2009 at approximately 4:00 p.m in the afternoon and was transported in a squad car to John Stroger Hospital. Lee’s legs were shackled and she was in handcuffs while she was being transported to the hospital.
102. Following her admission to the hospital, Lee was placed into a labor and delivery room.
103. While in the labor and delivery room, as required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Lee by hand and foot to the hospital bed.
104. As required by defendant Dart’s “shackling policy,” Lee remained shackled during labor.
105. At approximately 4:00 a.m. on June 2, 2009, Lee delivered a baby. As required by defendant Dart’s “shackling policy,” Lee delivered her child while shackled.
106. As required by defendant Dart’s “shackling policy,” Lee remained shackled during the next several days during her post-delivery recovery at Stroger Hospital.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 23 of 31 PageID #:920
Felicia Ligon
107. Plaintiff Felicia Ligon was admitted to the Cook County Jail as a pre-trial detainee on or about November 14, 2008.
108. Ligon was pregnant when she was admitted to the jail. 109. Ligon was transported to Stroger Hospital from the Cook County Jail on or about January 4, 2009 at the direction of a physician at the jail. 110. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Ligon by hand and foot while she was being transported to the hospital. 111. Ligon remained at Stroger Hospital until January 9, 2009. 112. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Ligon to remain shackled to a hospital bed until shortly before she delivered her child. 113. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff re-shackled Ligon about ten minutes after the birth (by Caesareian section), of her child. 114. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Ligon to remain shackled other than for a brief periods until she left Stroger Hospital.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 24 of 31 PageID #:921
115. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Ligon was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Angela Oss
116. Plaintiff Angela Oss was admitted to the Cook County Jail as a pre-trial detainee on or about August 26, 2008.
117. Oss was pregnant when she was admitted to the jail. 118. Oss went into labor in the evening of August 26, 2008 and was transported to St. Anthony Hospital where she gave birth shortly before midnight. 119. Oss remained at the hospital for two days. During that time, as required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Oss to be shackled to her hospital bed. 120. Following her discharge from the hospital, and as required by Dart’s “shackling policy,” Oss was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Sheena Richardson
121. Plaintiff Sheena Richardson was admitted to the Cook County Jail as a pre-trial detainee on or about September 10, 2008.
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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 25 of 31 PageID #:922
122. Richardson was pregnant when she was admitted to the jail. 123. Richardson was transported to Stroger Hospital from the Cook County Jail on September 15, 2008 at the direction of a physician at the jail. 124. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Richardson by hand and foot while she was being transported to the hospital. 125. Richardson remained at Stroger Hospital until September 19, 2008. 126. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Richardson to remain shackled to a hospital bed until shortly before she delivered her child. 127. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff re-shackled Richardson following the birth of her child. 128. As required by defendant Dart’s “shackling policy,” and notwithstanding requests of physicians at Stroger Hospital, a Deputy Sheriff required Richardson to remain shackled other than for a brief period on September 19, 2008 until she left Stroger Hospital.
-25-

Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 26 of 31 PageID #:923
129. Following her discharge from Stroger Hospital, and as
required by Dart’s “shackling policy,” Richardson was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
Bennetta Sidney
130. Plaintiff Bennetta Sidney was admitted to the Cook County Jail as a pre-trial detainee on or about April 4, 2009.
131. Sidney was pregnant when she was admitted to the jail. 132. Sidney went into labor on July 27, 2009 and was transported from the jail to Stroger Hospital at about 7:00 p.m. on July 27, 2009. 133. As required by defendant Dart’s shackling policy, a Deputy Sheriff shackled plaintiff by hand and foot, and placed a chain around plaintiff’s waist, before Sidney was taken to Stroger hospital. 134. Following her admission to the hospital, Sidney was placed into a labor and delivery room. 135. While in the labor and delivery room, as required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Sidney by hand and foot to the hospital bed.
-26-

Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 27 of 31 PageID #:924
136. Sidney gave birth to her child at approximately 11:30 p.m. that night. Sidney remained shackled until about 30 minutes before the birth of her child.
137. As required by defendant Dart’s “shackling policy,” Sidney remained shackled during post-delivery recovery until her release from the hospital on July 30, 2009.
Monique Starnes
138. Plaintiff Monique Starnes was admitted to the Cook County Jail in May of 2007.
139. Starnes was pregnant when she was admitted to the jail and in June of 2007 was assigned to the Sheriff’s “Mom’s program”, a residential treatment program conducted outside of the Cook County Jail.
140. On July 14, 2007, a counselor from the Mom’s program took Starnes to Stroger Hospital for a medical examination relating to Starnes’s pregnancy. Starnes was not handcuffed nor otherwise restrained while being transported to the hospital.
141. A physician at the hospital examined Starnes on July 14, 2007 and directed that she be admitted to the hospital for the purpose of delivering her baby.
-27-

Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 28 of 31 PageID #:925
142. While Starnes was in labor on July 14, 2007, a Deputy Sheriff, as permitted or required by defendant Dart’s “shackling policy,” shackled Starnes to the hospital bed.
143. Starnes was in labor for about two days before delivering her child. With the exception of a brief period, Starnes was shackled to the hospital bed during labor.
144. Following the birth of her child at about 9:30 p.m. on July 16, 2008, and pursuant to defendant Dart’s “shackling policy,” a Deputy Sheriff required Starnes to be shackled to her hospital bed.
Latania Walton
145. Plaintiff Latania Walton was admitted to the Cook County Jail as a pre-trial detainee on or about August 9, 2008.
146. Walton was pregnant when she was admitted to the jail. 147. Walton was transported to Stroger Hospital from the Cook County Jail on August 26, 2008 at the direction of a physician at the jail. 148. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff shackled Walton by hand and foot while she was being transported to the hospital. 149. Walton remained at Stroger Hospital until August 29, 2008.
-28-

Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 29 of 31 PageID #:926 150. As required by defendant Dart’s “shackling policy,” a Deputy
Sheriff required Walton to remain shackled to a hospital bed until shortly before she delivered her child.
151. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff re-shackled Walton following the birth of her child.
152. As required by defendant Dart’s “shackling policy,” a Deputy Sheriff required Walton to remain shackled other than when she was feeding her child until she left Stroger Hospital.
153. Following her discharge from Stroger Hospital, and as required by Dart’s “shackling policy,” Walton was shackled while a Deputy Sheriff returned plaintiff to the Cook County Jail.
154. Plaintiffs hereby demand trial by jury on all claims
-29-

Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 30 of 31 PageID #:927

Wherefore plaintiffs request that judgment be entered in their favor

and in favor of the proposed class, that plaintiffs and each class member

receive compensatory damages in an amount in excess of one hundred

thousand dollars, that plaintiffs Blair, Brown, Bryant, Carmona, Cruz,

Farrar, Fletcher, Johnson, Lee, Ligon, Oss, Richardson, Sidney, Starnes,

and Walton be awarded appropriate compensatory and punitive damages

against defendant Dart in his individual capacity, and that the Court grant

whatsoever other relief as may be appropriate.

Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, Il. 60643 (773)-233-7900

/s/ Kenneth N. Flaxman Kenneth N. Flaxman ARDC 0830399 200 South Michigan Ave Suite 1240 Chicago, Il. 60604-2430 (312) 427-3200

Attorneys for Plaintiffs

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Case: 1:08-cv-06946 Document #: 131 Filed: 09/21/10 Page 31 of 31 PageID #:928
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of September, 2010, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Michael Gallagher, ASA, 500 Daley Center, Chicago, IL 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: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 1 of 8 PageID #:957

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Catherine Zaborowski and Simone Jackson,

)

individually and on behalf of a class, Nicole

)

Blair, Lisa Brown, Danielle Bryant, Isabel

)

Carmona, Marianne Cruz, Cora Fletcher, Denae )

Johnson, Deborah Lee, Felicia Ligon, Angela Oss, )

Sheena Richardson, Bennetta Sidney, Monique )

Starnes, and Latania Walton

)

)

Plaintiffs,

)

)

vs.

)

)

THOMAS J. DART, SHERIFF OF COOK

)

COUNTY and COOK COUNTY, ILLINOIS

)

)

Defendants.

)

08 CV 6946
Honorable Judge St. Eve

DEFENDANT THOMAS DART, SHERIFF OF COOK COUNTY’S, MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

NOW COMES the Defendant, THOMAS DART, Sheriff of Cook County, individually,

by and through his attorney ANITA ALVAREZ, State‟s Attorney of Cook County, through her

assistant, Michael L. Gallagher, and pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, move this Honorable Court to dismiss Plaintiffs‟ Second Amended Complaint for the

failure to state a claim upon which relief may be granted against Sheriff Dart in his individual

capacity. In support thereof, the Defendant states as follows:

Introduction Plaintiffs1 bring this action under the Civil Rights Act, Title 42 Section 1983 of the

United States Code against Cook County Sheriff Thomas Dart in his individual capacity.

1 Catherine Zaborowski, Simone Jackson, Nicole Blair, Lisa Brown, Danielle Bryant, Isabel Carmona, Marianne Cruz, Cora Fletcher, Denae Johnson, Deborah Lee, Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, and Latania Walton.

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 2 of 8 PageID #:958
(Second Amended Complaint p.1-2). In particular, Plaintiffs allege that Sheriff Dart personally “adopted and implemented” an official policy of restraining female pre-trial detainees at the Cook County Department of Corrections (CCDOC) “before, during, and immediately after labor and delivery” in violation of the Fourth and Fourteenth Amendments of the Constitution. Id. at 1, 6).
However, Plaintiffs‟ claims against Sheriff Dart are exactly the “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” that should be dismissed pursuant to FRCP 12(b)(6). Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009); see Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Plaintiffs‟ assertions are especially baseless where the parties have engaged in extensive discovery regarding Sheriff Dart‟s alleged involvement in the “adopti[on] and implement[ation]” of the above policy. This discovery has included four (4) FRCP 30(b)(6) depositions of CCDOC supervising personnel and sworn interrogatories answered by Sheriff Dart himself, all of which establish that Sheriff Dart did not have personal involvement in the adoption or implementation of these alleged policies. Therefore, Plaintiffs have failed to state a cause of action against Sheriff Dart in his individual capacity and Plaintiffs‟ Second Amended Complaint should be dismissed with prejudice.
Standard of Review Under Rule 12(b)(6) a claim may be dismissed if, as a matter of law, “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”Neitzke v. Williams, 490 U.S. 319, 327 (1989); quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In reviewing a motion to dismiss, a district court‟s review is limited to the four corners of the complaint. Gomez v. Illinois State Bd. of Ed., 811 F.2d 1030, 1039 (7th Cir. 1987). The court should take the well-plead factual allegations of the complaint and view them, as well as reasonable inferences drawn from them, in the light most favorable to the
2

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 3 of 8 PageID #:959
Plaintiff. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). Nevertheless, while a district court will dismiss a complaint when no relief can be granted under a set of facts consistent with the allegations, the court should not strain to find inferences not plainly apparent from the face of the complaint. Hishon, 467 U.S. at 73. Furthermore, it should be noted that “litigants may plead themselves out of court by alleging facts that may establish defendants‟ entitlement to prevail.” Bennett v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998).
Plaintiffs Fail to Allege A Cause of Action Against Defendant Thomas Dart in his Individual Capacity To hold a defendant individually liable for damages due to alleged constitutional deprivations, substantive allegations of personal involvement on the part of the defendant must be stated. Potter v. Clark, 497 F.2d 1206 (7th Cir. 1974). The Seventh Circuit reaffirmed that “an individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation.” Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993); citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)(emphasis in original). A Plaintiff must demonstrate that the official “knowingly, willfully, or at least recklessly caused the alleged deprivation by his action or his failure to act.” Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). A defendant cannot be held liable by virtue of his employment or supervision of individuals who are alleged to have engaged in unconstitutional conduct. Rizzo v. Goode, 423 U.S. 362, 377 (1976). Because the doctrine of respondeat superior does not apply in § 1983 actions, it is not enough for plaintiff to allege wrongdoing on the part of defendant's subordinates. See Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Vicarious liability is insufficient to hold the employer or supervisor responsible merely because of his position. Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978). "An official satisfies the personal
3

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 4 of 8 PageID #:960
responsibility requirement of Section 1983 [only] if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent." Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). "[S]upervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. Id. "In short, some causal connection or affirmative link between the action complained about and the official sued is necessary for § 1983 recovery." Id. at 561.
In 2007, the Supreme Court retooled its interpretation of the pleading standards in the context of a motion to dismiss. See Twombly, 550 U.S. 553-554, 558-559. In Twombly, the Court stated that the "plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 553-556 (brackets omitted). The Court found that the plaintiffs‟ assertion of an unlawful violation of Section 1 of the Sherman Act was a “legal conclusion.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). The Court further found that plaintiff‟s nonconclusory “factual allegation of parallel behavior … did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-marked behavior.” Id. citing Twombly, 550 U.S. at 567.
The Court went on to find that the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. In so holding, Twombly retired the oft-quoted statement from Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), that a complaint survives a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 560-561; quoting Conley, 355 U.S. at 45-46; see Iqbal, 129 S. Ct. at 1944.
More recently in Iqbal, the Supreme Court explained the FRCP 8 pleading requirements in the context of Biven and Section 1983 claims against government officials in their individual
4

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 5 of 8 PageID #:961
and official capacities. Iqbal, 129 S. Ct. 1940. In particular, Iqbal alleged that defendants Attorney General Ashcroft and Federal Bureau of Investigations (FBI) Director Mueller “agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors” and that “Ashcroft was that policy‟s „principal architect‟; and that Mueller was “instrumental‟ in its adoption and execution.” Id. at 1939. However, the Court found that these claims were “conclusory and not entitled to be assumed true.” Id. at 1940. The Iqbal opinion further explained that while a court "must accept the factual allegations in the pleadings as true" and must liberally construe the claims in the light most favorable to the plaintiff, the courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 561, Iqbal, 129 S. Ct. at 1949-1950.
The Iqba Court based this holding on two “working principles” underlying the Court‟s decision in Twombly. Id. at 1949. First, a court‟s requirement to accept true all of the allegations contained in a complaint is inapplicable to legal conclusions because “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Second, only a complaint that states a “plausible claim” can survive a motion to dismiss. Id. at 1949-1950. Specifically, the Court stated:
Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not „show[n]‟ – „that the pleader is entitled to relief.” [internal citations omitted]. Id. citing Fed. Rule. Civ. Proc. 8(a)(2). See also Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009)(The Seventh Circuit held that plaintiff‟s allegation below “fail[ed] under Iqbal[‘s]” pleading requirement “because it is merely a formulaic recitation of the cause of action and nothing more.”
5

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 6 of 8 PageID #:962
“Plaintiff is informed, believes and alleges that the Defendants while acting in concert with other State of Illinois officials and employees of the Attorney General's Office, Department of Corrections and Prisoner Review Board did knowingly, intentionally and maliciously prosecute Plaintiff and Ronald Matrisciano in retaliation for Plaintiff and the said Ronald Matrisciano exercising rights and privileges under the Constitutions and laws of the United States and State of Illinois”. see also Walton v. Walker Jr. et. al., 364 Fed. Appx. 256, 258; 2010 U.S. App. LEXIS 2338 *4 (7th Cir. February 3, 2010)(Plaintiff‟s 82 page complaint-and the 184 pages of exhibits that accompany it-“contain nothing more than unsupported allegations that a wide variety of state and local officials over many months conspired to violate his rights.” Plaintiff‟s complaint only makes "‟[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,‟ and these are just the sort of „naked assertions‟ that the Supreme Court has counseled are not sufficient to avoid dismissal.” Iqbal, 129 S. Ct. at 1949; see Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). In the present case, Plaintiffs fail to allege sufficient facts to support the conclusion that Sheriff Dart personally “adopted and implemented” a policy of restraining female detainees “before, during, and immediately after labor and delivery” in violation of their constitutional rights. (Second Amended Complaint p.4). Instead, Plaintiffs‟ allegations are exactly the type of “threadbare recitals of the elements” that are insufficient to state a claim against Defendant in his individual capacity. Iqbal, 129 S. Ct. at 1949-1950. Instead of providing factual support for their claims, Plaintiffs provide “conclusory statements” regarding Sheriff Dart‟s participation in the adoption and implementation of the CCDOC‟s alleged policy of restraining detainees during labor and delivery. (Second Amended Complaint 7-8, 11-12) Plaintiffs have also been involved in extensive discovery regarding Sheriff Dart‟s alleged involvement in the adoption and implementation of the CCDOC‟s “shackling” policy. In fact, Plaintiffs have deposed four supervising personnel from the CCDOC. These four depositions
6

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 7 of 8 PageID #:963

have consisted of 352 pages of testimony regarding the Sheriff‟s policy, practice or custom

regarding restraining pregnant detainees, and more importantly, Sheriff‟s Dart personal

involvement in the creation and implementation of these policies, practices, or customs. In each

and every one of these depositions, the witnesses have testified that Sheriff Dart was not

involved in the creation, implementation, or supervision of the CCDOC‟s policy regarding

restraining female detainees during labor or delivery.

Moreover, Plaintiffs received Sheriff Dart‟s sworn answers to their interrogatories in the

matter of Deborah Lee v. Thomas J. Dart et. al., 09 CV 7789. Those interrogatories and answers

provided in part:

Interrogatory 2: State whether Defendant Dart had personal knowledge of the written policies, procedures, and/or practices relating to guarding or providing security for detainees while they are patients at a hospital, including but not limited to the practice or policy of restraining and/or shackling detainees to hospital beds during the period from December 1, 2004 through December of 2009.

Answer:

… Sheriff Dart is aware that detainees are guarded and require

security upon being transported to and while at hospitals outside of the Cook

County Department of Corrections. However, Sheriff Dart is unaware of the

specific procedures and means by which officers ensure detainees are transported

and secured. Finally, although Sheriff Dart did not personally participate in the

specific contents, creation, or implementation of such documents, the Cook

County Department of Corrections relies on… Sheriff Dart is aware that security

of detainees at a hospital, in general, consists of general requirements that such

security prevent escape of detainees, maintain the safety to the community and

individuals at said hospital, and that security is provided in accordance with any

applicable laws. Moreover, Sheriff Dart was aware that any security should act, in

managing security concerns, in accordance with any appropriate physicians‟

orders and each detainee‟s medical needs.

Therefore, Plaintiffs conclusory pleadings are precisely those prohibited by Iqbal, and their

claims against Sheriff Dart in his individual capacity should be dismissed.

7

Case: 1:08-cv-06946 Document #: 140 Filed: 10/12/10 Page 8 of 8 PageID #:964
CONCLUSION WHEREFORE, for the above stated reasons, Defendant Sheriff Thomas Dart is entitled to dismissal as a matter of law under F.R.C.P. 12(b)(6), and respectfully request that the Honorable Court dismiss with prejudice, Plaintiffs‟ Second Amended Complaint and all claims therein against Defendant Sheriff Thomas Dart in his individual capacity.
Respectfully Submitted, ANITA ALVAREZ State's Attorney of Cook County /s/ Michael L. Gallagher__ Michael L. Gallagher Assistant State's Attorney 500 Richard J. Daley Center Chicago, Il 60602 (312) 603-3124
8

 
 Case: 1:08-cv-06946 Document #: 147 Filed: 12/07/10 Page 1 of 24 PageID #:973

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

Catherine Zaborowski and Simone Jackson, )

individually and on behalf of a class, Nicole )

Blair, Lisa Brown, Danielle Bryant, Isabel )

Carmona, Mariane Cruz, Jennifer Farrar,

)

Cora Fletcher, Denae Johnson, Deborah Lee, )

Felicia Ligon, Angela Oss, Sheena

)

Richardson, Bennetta Sidney, Monique

)

Starnes, and Latania Walton,

) No. 08 CV 6946

)

Plaintiffs,

)

) (Judge St. Eve)

-vs-

)

)

Sheriff of Cook County and Cook County,

)

Illinois,

)

)

Defendants.

)

MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS

This case is proceeding as a class action to challenge a policy that

required all pregnant women in the custody of the Sheriff of Cook County

to be shackled during labor and during recovery following labor. The class

seeks to impose liability on the Sheriff in his official capacity. Plaintiffs

Blair, Brown, Bryant, Carmona, Cruz, Farrar, Fletcher, Johnson, Lee,

Ligon, Oss, Richardson, Sidney, Starnes, and Walton seek to impose

liability on the Sheriff in his individual capacity. Now before the Court is

the Sheriff’s motion to dismiss the individual capacity claim. The Court

should deny this motion for the reasons set out below.

Case: 1:08-cv-06946 Document #: 147 Filed: 12/07/10 Page 2 of 24 PageID #:974
I. Plaintiffs’ Theory of Individual Liability
Thomas J. Dart became the Sheriff of Cook County in December of 2006. (Second Amended Complaint, pars. 4, 5(b).) Rather than working from the loop office of his predecessor, Dart moved his office to the Cook County Jail, publicly declaring that “The jail is 90 percent of the job.”1 Dart explained that “The day in and day out things that impact our office that require decisions, and quick ones, are from out there.”
Upon becoming Sheriff, Dart promptly instituted a variety of changes at the jail, installing new technologies, including introducing bodyscanning machines to prevent contraband from entering the jail, while also raising standards for employment. (Second Amended Complaint, par. 5(a).) Dart applied a “hands on” style of management, and held weekly “accountability meetings,” during which all high ranking Jail staffers provide him with detailed reports on activities in their respective divisions of the Jail. (Second Amended Complaint, par. 5(b). Dart formed a “Weapons Free Committee” to collect, inventory, and analyze all inmate-
1 Plaintiffs advance this and the following contention in accordance with the Seventh Circuit’s rule that, in responding to a motion to dismiss, a plaintiff may “suggest facts outside the pleading, including on appeal, to show that a complaint should not be dismissed.” Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010). (The quotation appeared in the Chicago Tribune on December 2, 2006. )
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made shanks and weapons. (Second Amended Complaint, par. 5(c).) Dart also formed a “blue ribbon” committee of former U.S. Attorneys and other legal and law enforcement experts to evaluate the Sheriff’s internal affairs operations. (Second Amended Complaint, par. 5(d).)
In addition to this involvement in the everyday running of the jail, Dart selected and hired a consultant to train correctional officers on how to better recognize and supervise inmates with mental health issues. (Second Amended Complaint, par. 5(e).) Dart also changed Jail policy to permit contact visits between female detainees and their children. (Second Amended Complaint, par. 5(f).) Moreover, Dart became personally involved in the operation of the 13,000 square foot garden located on the grounds of the Cook County Jail that is used to train detainees in urban farming. (Second Amended Complaint, par. 5(g).)
At the same time that he adopted and implemented these progressive policies, Dart permitted the continuation of an official policy (hereinafter “shackling policy”) requiring correctional officers to shackle pregnant woman before, during, and immediately after labor and delivery. (Second Amended Complaint, par. 6.) The shackling policy violates clearly established federal law (Second Amended Complaint, par. 10), as well as
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the express terms of an Illinois statute, 55 ILCS 5/3-15003.6 (Second Amended Complaint, par. 8.)
Dart learned about the shackling policy some time after December 1, 2007. (Second Amended Complaint, par. 10(b).) Notwithstanding his actual knowledge of the unlawful and unconstitutional practices, Dart sought to conceal the unlawful policy by making false public statements that shackling was necessary because many female detainees have escaped from custody during childbirth. (Second Amended Complaint, par. 12.) Dart also made false public statement that Illinois law permits shackling a detainee before, during, and after childbirth. Id.
Although Dart eventually took remedial action to change the unlawful shackling practices (Second Amended Complaint, par. 13), plaintiffs were each subjected to the shackling policy because Dart failed “to intervene and take action to correct the unlawful policy after he acquired personal knowledge that, notwithstanding clearly settled federal law and the unambiguous state statute, female detainees were being shackled before, during, and after childbirth. Id.
Plaintiffs fairly allege in their second amended complaint that Dart knew about the unconstitutional shackling policy and that, as Sheriff, he
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had the ability to change that policy. Plaintiffs have therefore stated a
Section 1983 claim against Dart in his individual capacity.2
For more than 25 years, the law has been clearly established that
the official in charge of the Cook County Jail is responsible for violations of
constitutional rights that occur with his (or her) “knowledge and consent.”
An official satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent. Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986) Defendant acknowledges Rascon (Def.Mem. 3), but cites it for the
proposition that plaintiffs must show that defendant acted “knowingly,
willfully, or at least recklessly.” Id. Defendant, however, omits the final
clause of the quoted excerpt from Rascon — the language that recognizes
liability when “the conduct causing the constitutional deprivation occurs as
her direction or with her knowledge and consent.”
The Seventh Circuit has repeatedly reaffirmed the Rascon standard
for individual liability. See, e.g., Del Raine v. Williford, 32 F.3d 1024, 1052
2 Plaintiffs’ theory of liability is analogous to a § 1983 claim against a police officer who failed “to intervene to prevent a false arrest or the use of excessive force if the officer is informed of the facts that establish a constitutional violation and has the ability to prevent it.” Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008), quoting Morfin v. City of East of Chicago, 349 F.3d 989, 1001 (7th Cir. 2003).
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(7th Cir. 1994); McPhaul v. Board of Commissioners of Madison County, 226 F.3d 558, 566 (7th Cir. 2000). As this Court stated in Nicol v. Lavin, N.D.Ill., 03-cv-6688, Mem.Op., Aug 13, 2004, 11): “Refining the inquiry as to a supervisory official, Plaintiff need not allege ‘direct participation’ but merely acts or omissions at [defendant’s] ‘direction,’ with [defendant’s] ‘knowledge and consent,’ or exhibiting [defendant’s] ‘deliberate or reckless disregard’ for Plaintiff's constitutional rights.” Nicol v. Lavin, supra, attached as Exhibit 1.)
Defendant bases his motion to dismiss on a misreading of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (Def.Mem. 4-6), and on the meritless theory that a complaint should be dismissed under Rule 12(b)(6) because the defendant has denied wrongdoing in pre-trial discovery. (Def.Mem. 6-7.) Plaintiffs respond to these arguments below.
II. The Complaint Meets the Iqbal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Such well-pleaded facts “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950.
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Defendant’s Iqbal argument consists of the somewhat misleading assertion that the second amended complaint fails to allege “that Sheriff Dart personally ‘adopted and implemented’ a policy of restraining female detainees ‘before, during, and immediately after labor and delivery’ in violation of their constitutional rights. (Def.Mem. 6.) Plaintiffs do not, however, seek to impose liability on Dart because he “personally adopted and implemented” the shackling policy. As set out above, plaintiffs’ theory of the case is that Dart knew about the shackling practices and that Dart allowed those practices to continue with his “knowledge and consent.” Rascon v. Hardiman, 803 F.2d at 274.
The Seventh Circuit recently recognized in T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010) that Iqbal does not bar a claim that a supervisory official is liable when he (or she) “creat[es] an atmosphere that allowed abuse to flourish.” Id. at 590. The Court there concluded that “When a state actor’s deliberate indifference deprives someone of his or her protected liberty interest in bodily integrity, that actor violates the Constitution, regardless of whether the actor is a supervisor or subordinate, and the actor may be held liable for the resulting harm.” Id. at 591.
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Plaintiffs discussed in Part I of this memorandum their detailed, specific allegations of Dart’s personal involvement in the running of the Jail, as well as plaintiffs’ allegations that, after learning about the shackling policy, Dart allowed those practices to continue. These allegations are sufficiently detailed and meet the Iqbal standard.
III. The Sheriff’s Representations about Discovery Are Not Material to Whether the Complaint States a Claim
Defendant makes a variety of representations about information disclosed in discovery (Def.Mem. 2, 6-7), and argues that the Court should consider his denials about involvement in the “creation, implementation, or supervision” of the shackling policy in ruling on a Rule 12(b)(6) motion to dismiss. (Def.Mem. 6-7.) The Court should swiftly reject these arguments.
In ruling on a Rule 12(b)(6) motion to dismiss, the Court may only consider evidentiary materials that are referenced in, or attached to, the complaint. Wilson v. Price, 624 F.3d 389, 392 n.1 (7th Cir. 2010); McCready v. eBay, Inc., 453 F.3d 882, 891-92 (7th Cir. 2006). Dart’s self-serving denials of liability may, of course, be considered on a motion for summary judgment (after Dart has submitted to a deposition), but have no place in a Rule 12(b)(6) motion.
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IV. Conclusion
The Court should therefore deny defendant Dart’s motion to dismiss.
Respectfully submitted, /s/ Kenneth N. Flaxman
Kenneth N. Flaxman ARDC 0830399 200 South Michigan Ave Suite 1240 Chicago, Il. 60604-2430 (312) 427-3200 Thomas G. Morrissey, Ltd. 10249 S. Western Ave. Chicago, Il. 60643 (773)-233-7900 Attorneys for Plaintiffs
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Exhibit 1

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

SUSAN E. NICOL,

)

)

Plaintiff,

)

)

v.

)

)

JOHN LAVIN, in his Official Capacity as

)

DTRECTOR, DEPARTMENT Of COMMERCE )

& ECONOMIC OPPORTUNITY; PAM

)

MCDONOUGH, in her Official and Individual )

Capacities as DTRECTOR, DEPARTMENT OF )

COMMERCE & COMMUNITY AFFAIRS;

)

ROBERT L. HEARN, in his Ofliciai and Individual)

Capacities as SUPERVISOR, DEPARTMENT OF )

COMMERCE & COMMUNITY AFFAIRS; and )

ILLINOIS DEPARTMENT OF COMMERCE & )

ECONOMIC OPPORTUNITY (formerly

)

DEPARTMENT OF COMMERCE &

)

COMMUNITY AFFAIRS),

)

)

Defendants.

)

No. 03 C 6688

DOCKETED
AUG 1 3 2004

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Plaintiff Susan Nicol ("Nicol") filed a four-count second amended complaint against

Defendants John Lavin ("Lavin") in his official capacity as Director of the Department of

Commerce & Community Affairs ("DCCA"), Pam McDonough ("McDonough") in her

individual and official capacities as the former Director of the DCCA, Robert Hearn ("Hearn")

in his individual and official capacities as Supervisor in the Grant Monitoring Section of the

DCCA, and the Tllinois Department of Commerce & Economic Opportunity ("DCEO") fonnerly

known as the DCCA. Specifically, Plaintiff alleged race discrimination creating a hostile work

environment and retaliation in violation or 42 U.S.C. § 1981 against Lavin, McDonough, Hearn,

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and the DCEO (Count I); creation of a hostile work environment and retaliation in violation of Title VII ofthe 1964 Civil Rights Act against the DCEO (Count II); race, national origin, and skin color discrimination creating a hostile work envirorunent in violation of42 U.S.C. § 1983 against Lavin, McDonough, and Hearn (Count III); and race, national origin, and skin color discrimination in violation of the Illinois Civil Rights Act of2003 against the DCEO (Count IV). Plaintiff seeks a declaratory judgment, damages, and injunctive relief. Defendants have moved to dismiss all four counts pursuant to Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. For the reasons stated herein, Defendants' motion is granted in part and denied in part.
BACKGROUND' PlaintifTNicol is of Korean national origin, and was a b'nlnt monitor with the DCCA when the alleged discrimination occurred. (R. 20-1, Second Am. Compl. at 2, ~ 2.) Defendant Hearn, an African-American, is a Supervisor with the DCCA and supervised Nicol. (Jd. ,1,1 6-8.) In July 2001, Nicol returned from maternity leave and over the course of several months Hearn made inappropriate oral remarks and physical gestures toward her, and exhibited a demeaning attitude toward her work performance because of her race, national origin, and skin color. (ld. ~~ 12-14.) Hearn's conduct adversely impacted Nicol's work envirorunent. (fd. ,1,112, 20.) After Nicol complained about Hearn's conduct, Hearn used his supervisory role to take reprisal actions against her. (Jd. ,1,112-13.) Despite Nicol's informal written complaint and EEOC charges, the DCCA- under McDonough's direction- never completed an internal investigation

1 The Court assumes that the allegations in Plaintiffs complaint are true for purposes of this Rule 12(b)(6) motion. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7'h Cir. 2000).
2

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or resolved the complaints. (!d.~~ 5, 15, 17-19.) Further, during the alleged discrimination and

retaliation, the DCCA had a custom and practice oC failing to adequately investigate and provide

relief!o employees' complaints. (ld. ~ 24.) Moreover, McDonough knew about Hearn's

discriminatory conduct, deliberately failed to investigate or remedy the situation, and ratiHed

Hearn's actions. (/d.~ 22.) Consequently, Nicol resigned her position with the DCCA on May

22, 2002. (!d. ,121.)

LEGAL STANDARDS

A Rule 12(b)(l) motion is a defense asserting a federal court's lack of subject matter

jurisdiction over a lawsuit. See Fed.R.Civ.Proc. 12(b)(l). The purpose of a Rule 12(b)(6)

motion is to test the legal sufficiency of a complaint, not the merits of the case. Triad Assocs.,

Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7'" Cir. 1989). The Court must view the

allegations in the complaint "in the light most favorable to the plaintiff: taking as true all well-

pleaded factual allegations and making all possible inferences from those allegations in his or her favor." Lee v. City ofChicago, 330 F.3d 456,459 (7'11 Cir. 2003). A complaint is not

required to allege all, or any, of the J"acts entailed by the claim; the plaintiff can plead conclusions. Shah v. Inter-Continental Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7'11

Cir. 2003). Consequently, the Court may grant the motion to dismiss "only if it appears beyond

doubt that the plaintiff could prove no set of facts entitling him to relief." Triad Assocs., Inc.,

892 F.2d at 586.

ANALYSIS

I,

Count I: § 1981 Claim

42 U.S.C. § 1981 provides, in part:

AJl persons within the jurisdiction of the United States shall have the same right in every

3

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State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a) (2004). Defendants argue that they are entitled to Eleventh Amendment immunity, that Plaintiff has failed to state a claim under§ 1981, and that Plaintiff's § 1981 claim is barred by the statute of
limitations. The Court will address the arguments in turn. A. Eleventh Amendment' Immunity
Under the Eleventh Amendment, a state and its agencies arc immune from private suits
seeking damages or injunctive relief in l'ederal court unless by express and unequivocal language the state or Congress waives the state's Eleventh Amendment immunity. Kroll v. Bd. of Trustees, 934 F.2d 904, 907 (7'h Cir. 1991 ). Eleventh Amendment immunity shields state agencies from federal damages liability for§ 1981 claims. Rur.:ker v. Higher Educ. Aids Bd., 669
F.2d 1179, 1184 (7'h Cir. 1982). In addition, a lawsuit against ''a state official in his or her
ofticial capacity is not a suit against the official but rather is a suit against the oflicial's office" and "is no dill'ercnt from a suit against the Slate itself." Will v. Michigan Dep't o[Stak Police, 491 lJ.S. 58, 71 (1989) (internal citations omitted).'
The State of lllinois has not waived its Eleventh Amendment immunity for§ 1981

2 "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citi;r,ens or Subjects of any Foreign State." U.S. Const. amend. XI.
3 Notably, the Seventh Circuit in dicta cited Will to state that a district court correctly concluded that a former Illinois govemor lacks § 1981 damages liability in his oflicial capacity
pursuant to the state's Eleventh Amendment immunity. See Hearne v. Bd. ofEdu<:. ofCity of Chicago, 185 F.3d 770, 776 (7'h Cir. 1999) (citing Will and stating that the proposition was "so well established that it needs no further discussion").
4

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claims. &e 745 ILL. CoMP. STAT. 5/1,5/1.5 (2004). Also, Congress "has not expressed in
unequivocal language intent to alter immunity" in§ 1981 claims. Perkins v. Bd. of Trustees
Univ. ofIllinois, No. 95 C 4320, 1996 WL 308292, at* I (N.D.lll. June 4, 1996). A state official, however, may be sued in his or her official capacity when injunctive relief is sought because "oflicial-capacity actions for prospective relief are not treated as actions against the State." Kentuckyv. Graham,473 U.S.l59, l67,n.l4(1985);Exparte Young,209U.S. 123, 159-60 ( 1908). See also Edelman v. Jordan, 4 I 5 U.S. 651, 668-69 (1974) (stating that enjoining state officials' for past legal duty breach where its "practical effect" is indistinguishable from a retroactive damages award is barred by the Eleventh Amendment) (followed by Brazdo v. Illinois Dep 't ofProf'I Regulation, No. 94 C 134, 95 C 2066, 1995 WL 733445, at *4 (N.D. Ill. Dec. 8, 1995)). A plaintiff must show a "real or immediate threat of future harm" to have standing to seek prospective equitable relief. Sierakowski v. Ryan, 223 F.3d 440, 443 (7'h Cir. 2000) (citing City ofLos Angeles v. Lyons, 461 U.S. 95 (1983)).
PlainliffNicol alleges a§ 1981 claim against the DCEO, Lavin, McDonough, and Hearn in their official capacities. The DCEO is entitled to Eleventh Amendment immunity. Because Plain!i IT seeks prospective relief in her complaint, including reinstatement, her claim against Lavin and Hearn in their official capacities survives as to those only. Finally, McDonough as former Director of the DCCA is incapable of providing prospective relief, thus the claim against her in her official capacity is dismissed.
B. Failure to State a Claim Under § 1981 Defendants argue that tl1e complaint fails to state a claim under§ 1981 because it insufficiently alleges race discrimination and personal involvement. To state a claim under§

5

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1981 ,< Plaintiff must allege that (I) she is a member of a racial minority; (2) Defendants
intended to discriminate on the basis of race; and (3) the discrimination concerned the making and enforcing of a contract. See Morris v. Oj]ice Max. Inc., 89 F.3d 411,413 (7'h Cir. 1996). Thus, per Morri.1·, personal involvement is not an clement of a§ 1981 claim.'
Plaintiffs complaint contains sufficient allegations of the first and third elements of her§ 1981 claim. As to Hearn, Plainti!Tsufficiently alleges the second element ofhcr § 1981 claim in alleging that Ileam engaged in the alleged conduct "because of [her] race." As to McDonough, Plaintill' sufficiently alleges the second clement of her § 1981 claim in alleging that McDonough, as the Director of the DCCA during the alleged race discrimination, "knew" about Heam's alleged race discrimination, deliberately failed to fully respond to Plaintiff's internal complaint and complete an internal investigation thereof; and ratified Hearn's alleged race discrimination. Accordingly, Defendants' motion to dismiss is denied as to Plaintiffs§ 1981 cbim against McDonough and Hearn.
C. Statute of Limitations Defendants argue that Plaintiffs § 1981 claim is barred by a two-year statute of limitations. Congress enacted a four-year statute of]imitations for federal statutory claims enacted after December 1, 1990. Jones v. R.R. Donne/ley & Sons Co., 124 S.Ct 1836, !839 (2004); 28 U.S.C. § 1658(a) (2002). The statute provides "a genera\4-year limitations period for any federal statute subsequently enacted without one of its own." Jones, 124 S.Ct at 1845, n. 14

4 In light of Section I.A. of this Opinion and Order, only Plaintiffs§ 1981 claim against McDonough and Hearn in their individual capacities is at issue.
5 The Court notes that Rascon v. Ilardiman, 803 F.2d 269 (7'h Cir. 1986), was improperly cited in its March 10, 2004 Minute Order § 1981 discussion.
6

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(quoting North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995)) (internal quotations omitted). The Civil Rights Act of 1991 amended § 1981 such that !he statute prohibited race discrimination in the employment context. Jones, 124 S.C! at 1846. See 42 U.S.C. § 1981 (b) (2004). Therefore, the Supreme Court in Jones held that the four-year statute of limitations applied because the plaintiff's hostile work environment, wrongful termination, and failure-totransfer claims were brought pursuant to § 1981 as amended by the Civil Rights Act of 1991. Jones, 124 S.Cl at 1846.
Here, Plaintiff alleges race discrimination in the employment context pursuant to § 1981 as an1ended by the Civil Rights Act of 1991, and therefore !he four-year statute of limitations contained in 28 U.S.C. § 1658(a) applies. Plaintiff alleges such race discrimination by McDonough and Hearn until at least April 2002 and October 2001, respectively. Plaintiff filed her original complaint on September 22, 2003, within the applicable four-year statute of limitations. Accordingly, Defendants' motion to dismiss Plaintiffs§ 1981 claim pursuant to the statute oflimitations is denied. IT. Count II: Title VII Claim
Defendants argue that the Court should dismiss the race and national origin discrimination allegations in Count II because those allegations exceed the scope of her EEOC charge. Plaintiff fails to directly respond to this argument.
Generally, "a Title Vll plaintiff cannot bring claims in a lawsuit that were not included"
in an EEOC charge. Cheek v_ Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7!1' Cir.
1994). The EEOC charge is a "condition precedent with which Title VII plaintiffs must comply" - that promotes dispute settlement and provides notice- and is "not jurisdictional." /d. (citing Zip~s v_ Trans World Airlines, Inc., 455 U.S. 385, 392 (1982) and Babrocky v. Jewel Food Co.,
7

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773 F.2d 857. 864 (7'h Cir. 1985)). See also Gibson v. West, 201 FJd 990, 994 (7'" Cir. 2000). A Title VII plaintiff is not required to allege in an EEOC charge "each and every fact that combines to form the basis of each claim" in the complaint, a standard entailing "significant leeway." Cheek, 31 F.3d at 500 (internal quotations omitted).
An EEOC charge encompasses the claims in a complaint when (I) there is a "reasonable relationship" between the EEOC charge's allegations and the claims stated in the complaint; and (2) the claims slated in the complaint can "reasonably be expected to grow out of an EEOC investigation" of the charge's allegations. !d. As to the first inquiry, the Seventh Circuit in Cheeks stated that an EEOC charge and a complaint's claims are not "reasonably related unless there is a factual relationship between them" that at minimum describes the "same conduct" and implicates the "same individuals." !d. at 501 (internal quotations omitted). See Jayne v. ABF Fri!ight System, Inc., No. 98 C 2680, 1999 WL 92920, at *4 (N.D. Ill. Feb. 16, 1999) (concluding that plaintiff did not satisfy the Cheek test where the EEOC charge and complaint failed to describe the same people and failed to mention any individual by name). Additionally, courts may look beyond the EEOC charge document when undertaking the first inquiry. See Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7'h Cir. 1992) (considering plaintifl's artldavit that was attached to and filed with the EEOC charge). As to the second inquiry, the Seventh Circuit has noted that this requires "speculation as to what the EEOC might or might not discover" during an investigation. Cheek, 31 F.3d at 501.
Plaintiff Nicol checked boxes on three EEOC charges indicating race, color, national origin, sex, and age discrimination, and retaliation. (R. 24-2, Defs.' Mem, Supp. Mot. Dismiss, Ex. D.) With all three EEOC charges, Plaintiff attached and referred to a statement, and two EEOC charges had attached and referred to correspondence. (/d.) Each of these statements
8

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relates to allegations of discrimination and derogatory comments regarding Plaintitr s sex or age, and retaliation. None of the factual statements discuss or relate to her race or national origin.
The Seventh Circuit has noted that "simple technicalities such as '[w]hat boxes, for instance, are checked on the EEOC form do not necessarily control the scope of a subsequent complaint."' Noreuil v. Peabody CoCII Co., 96 F.3d 254,259 (7'h Cir. 1996) (quoting Kristujek v. Hussmann Foodservice Co., Toastmaster Div., 985 F.2d 364, 368 (7'1> Cir. 1993)). The Court finds that Plaintifrs claims of race and national origin discrimination are not rea~onably related to her sex discrimination and retaliation claims and cannot "reasonably be expected to grow out of an EEOC investigation" of such claims. Accordingly, those claims are dismissed From Count II. See Mohan v. American Tel. and Tel. Co., 1999 WL 495113, at •10 (N.D. Ill. Jun. 30, 1999) ('This Court finds that merely checking a box--without more--docs not fulfill the administrative purposes that a charge with the EEOC is designed to serve, and docs not provide a basis for a later federal court discrimination complaint").
Ill, Count IJI: § 1983 Claim
Plaintiff premises Count III on§ 1983, which protects citizens' constitutional rights, privileges, and immunities from being infringed by state actors. See 42 U.S.C. § 1983 (2004). Defendants argue four grounds for dismissing Count IlL First, Defendants argue that Lavin, McDonough, and Hearn in their official capacities, arc entitled to Eleventh Amendment immunity. Second, Defendants argue that Lavin, McDonough, and Hearn in their official capacities, are not "persons" under § 1983. Third, Defendants argue that the complaint fails to state a claim under § 1983 because it insuft1eiently alleges a constitutional violation aml pcrsonul invoivement. Fourth, Defendants argue that Plaintiffs § I983 claim is barred by the statute of limitations. The Court will address the arguments in turn.
9

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A. Eleventh Amendment Immunity Defendants argue that Lavin, McDonough, and Hearn in their oflicial capacities, are entitled to Eleventh Amendment immunity. As stated above, the Eleventh Amendment provides a state and its agencies immunity from private federal suits unless by express and unequivocal language the state or Congress waives the state's Eleventh Amendment immunity. Kroll, 934 F.2d at 907. The State of Illinois has not waived its Eleventh Amendment immunity for§ 1983 claims. See 745 ILL. CoMP. STAT. 5/1,5/1.5 (2004). Further, Congress has not abrogated the states' Eleventh Amendment immunity from § 1983 claims. See Quem v. Jordan, 440 U.S. 332, 341 (1979) (followed by Horton v. Marovich, 925 F.Supp. 540,545 (N.D. Ill. 1996)). For the same reasons discussed above regarding Plaintitl' s § 1981 claim, Plaintiff's § 1983 claim survives as to prospective relief only. 13ecause McDonough as the l(mner Director ol'the DCCA is incapable of providing prospective relief, Plaintiffs§ 1983 claim against McDonough in her official capacity fails.
B. Pcrsoos Under § 1983 Defendants argue that Lavin, McDonough, and Hearn in their official capacities, are not "persons" under § 1983. In Will v. Michigan Department ofState Police, the Supreme Court held that "neither a State nor its officials acting in their official capacities are 'persons' under§ 1983." Will, 491 U.S. at 71. However, state officials arc persons under§ 1983 when sued lor injunctive relief in their official capacities. /d. at 71, n. 10 (citing Kentucky, 473 U.S. at 167, n. 14; Ex parte Young, 209 U.S. at 159-60). Thus, Plaintiffs claim against Lavin and Hearn in their official capacities survives regarding injunctive relief.
C. :Failure to State a Claim Under§ 1983 Defendants argue that the complaint fail~ to state a claim under § 1983 because it
10

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insufficiently alleges a constitutional violation and personal involvement. In order to state a § 1983 claim, Plaintiff must allege that (I) Defendants violated Plaintiff's constitutional rights; and (2) they acted under color of state law. Pickrel v. City ofSpringfield, 45 F.3d 1115, 1118 (7'h Cir. 1995); Reichenberger v. Pritchard, 660 F.2d 280, 284 (7'h Cir. 1981 ). As to McDonough, a supervisory oflicial, Plaintiff must allege that McDonough was directly responsible for the constitutional violation and by her acts or omissions "knowingly, willfully, or at least recklessly caused" the violation of Plaintiffs constitutional rights. See McPhaul v. Bd. o[Comm 'rs ofMadison County, 226 F.3d 558, 566 (7'h Cir. 2000) (internal quotations omitted). Refining the inquiry as to a supervisory official, Plaintiff need not allege "direct participation" but merely acts or omissions at McDonough's "direction," with McDonough's "knowledge and consent," or exhibiting McDonough's "deliberate or reckless disregard" lor Plaintiffs constitutional rights. See Rascon v. Hardiman, 803 F.2d 269, 274 (7'h Cir. 1986). Moreover, to slate her § 1983 claim against both Hearn and McDonough pursuant to the Equal Protection Clause, Plaintiff must allege that a state actor purposefully discriminated against her because or her identi lica!ion with a particular group. See Sherwin Manor Nursing Center. Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7111 Cir. 1994). PlaintiiT has sufficiently alleged each of the elements of a § 1983 claim in her Second Amended Complaint.
D. Statute of Limitations
Defendants next argue that Plainli Cfs § 1983 claim is barred by the statute of limitations.
Federal courts must adopt the forum state's statute oflimitations for personal injury claims as the proper statute of limitations for§ 1983 claims. Wilson v. Garcia, 471 U.S. 261,276 (1985). The appropriate statute oflimitations for§ 1983 claims filed in the State of Illinois is two years as set forth in 735 ILCS § 5/13-202. Mitchell v. Donchin, 286 F.3d 447, 450, n. I (7'h Cir. 2002);
11

Plaintiffs' Exhibit 1

Page 11

Case: 1:08-cv-06946 Document #: 147 Filed: 12/07/10 Page 22 of 24 PageID #:994
Ashaja v. City ofChicago, 146 F.3d 459, 461 (7'" Cir. 1998). Plaintiff alleges race, national origin, and skin color discrimination creating a hostile
work environment pursuant to 42 U.S.C. § 1983, and therefore the two-year statute of limitations applies. PlaintitTalleges such discrimination regarding McDonough and Hearn until at least April2002 and October 2001, respectively. Because Plaintiffs § 1983 claim arises out or the same conduct alleged in her original complaint, it relates back to the date of the original pleading under Federal Rule of Civil Procedure 15(c)(2). See Johnson v. Artim Transp. System, Inc., 826 F.2d 538, 547 n. 9 (7'" Cir. 1987). Plaintiffs original complaint was filed on September 22, 2003, within the applicable two-year statute oflimitations. Accordingly, Defendants' motion to dismiss Plaintiffs § 1983 claim pursuant to the statute oflimitations is denied. IV. Count IV: Illinois Civil Rights Act of 2003 Claim
The Illinois Civil Rights Act of 2003 ("Illinois Civil Rights Act") prohibits the state from engaging in race, color, or national origin discrimination. See 740 ILL. COMP. STAT. 23/5(a)( I) (2004). Defendants argue that Count IV should be dismissed because the conduct on which Count IV is based took place before the erfective date of the Illinois Civil Rights Act. The Court agrees.
The Illinois Civil Rights Act states that its "(e)ffective" date is January I, 2004. See 2003 Ill. Legis. Serv. 93-425 (West). Where the legislature has clearly indicated a statute's temporal reach, the Court must adhere to it absent constitutional violation. Commonwealth Edison Co. v. Will County Collector, 749 N.E.2d 964, 971 (lll. 2001). In addition, the legislature has set forth the temporal reach or every statute lacking its own limitations period in 5 ILCS § 70/4, the "Statute on Statutes" forbidding retroactive application of substantive statutes. See Caveney v. Bower, 797 N.E.2d 596, 603-4 (Til. 2003) (following People v. Glisson, 782 N.E.2d
12

Plaintiffs' Exhibit 1

Page 12

Case: 1:08-cv-06946 Document #: 147 Filed: 12/07/10 Page 23 of 24 PageID #:995
25 I (II1. 2002)); 5 ILL. COMP. STAT. 70/4 (1874). q Bottoms v. Illinois Dep 't ofHuman
Services, No. 03 C 1881,2004 WL 1403811, at *3 (N.D.lll. June 22, 2004) (following Caveney and concluding that 745 !LCS § S/1.5, whose effective date was January 1, 2004, could not be applied retroactively in light of the statute's express temporal reach and the "default provisions of the Statute on Statutes").
Here, Plaintiffs claims pertain to conduct and events that occurred in 200 I and 2002. (SeeR. 20-1, Second Am. Compl. at 9, ~~ 2-22.) Indeed, when the Illinois Civil Rights Act became effective on January I, 2004, Plaintiff's c<tSe was already pending in this Court. (SeeR. 1-1, Campi. at 9.) Accordingly, Defendants' motion to dismiss Plaintiffs Illinois Civil Rights Act claim is granted.

CONCLUSION The Court grants in part and denies in part Defendants' motion to dismiss.

Dated: August 12,2004

ENTERED

13 Plaintiffs' Exhibit 1

Page 13

Case: 1:08-cv-06946 Document #: 147 Filed: 12/07/10 Page 24 of 24 PageID #:996
CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of December, 2010, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Michael Gallagher, ASA, 500 Daley Center, Chicago, IL 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)

 
 Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Amy J. St. Eve

Sitting Judge if Other than Assigned Judge

08 C 6946

DATE

12/29/2010

Zaborowski et al vs. Sheriff of Cook County et al

DOCKET ENTRY TEXT The Court denies Defendant Dart's motion to dismiss [140].

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
On September 21, 2010, Plaintiffs filed a Second Amended Complaint alleging that Defendants Thomas J. Dart, the Sheriff of Cook County, Illinois and Cook County, Illinois violated their constitutional rights based on Defendants’ policy of shackling female pre-trial detainees at the Cook County Department of Corrections (“CCDOC”) before, during, and immediately after they give birth. See 42 U.S.C. § 1983. Plaintiffs are suing Sheriff Dart in both his official and individual capacities. Before the Court is Defendant Dart’s motion to dismiss the claims brought against him in his individual capacity. For the following reasons, the Court denies Defendant Dart’s motion.
BACKGROUND
In their Second Amended Complaint, Plaintiffs allege that Sheriff “Dart has at all times been personally involved in the formulation and implementation of policies at the Cook County Jail.” (R. 131, Second Am. Compl. ¶ 5.) Plaintiffs further allege that Sheriff Dart has permitted the continuation of the official shackling policy that requires correctional officers to shackle pregnant woman in the custody of the Sheriff of Cook County before, during, and immediately after labor and delivery. (Id. ¶ 6.) Moreover, Plaintiffs allege that Sheriff Dart’s “shackling policy implements a barbaric practice that needlessly inflicts excruciating pain and humiliation.” (Id. ¶ 7.) Plaintiffs also state that Sheriff Dart enforced the shackling policy in willful and wanton disregard of the laws of the State of Illinois, specifically, 55 ILCS 5/3-15003.6. (Id. ¶ 8.)

Courtroom Deputy

KF

Initials:

08C6946 Zaborowski et al vs. Sheriff of Cook County et al

Page 1 of 3

In addition, Plaintiffs maintain that at some time after December 1, 2007, Sheriff Dart learned that the widespread practice at the Cook County Jail was that pregnant female detainees would be: (1) shackled while being transported to a hospital for labor and delivery; (2) shackled during labor and delivery; and/or (3) shackled during recovery after labor. (Id. ¶ 10.) Plaintiffs further allege that notwithstanding his actual knowledge of this unlawful and unconstitutional policy, Sheriff Dart waited more than one year to take remedial action concerning the shackling policy. (Id. ¶¶ 12, 13.)

LEGAL STANDARD

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Pursuant to Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As the Seventh Circuit explains, this “[r]ule reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)). Under the federal notice pleading standards, a plaintiff’s “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L.Ed.2d 1081 (2007); McGowan v. Hulick, 612 F.3d 636, 638 (7th Cir. 2010) (courts accept factual allegations as true and draw all reasonable inferences in plaintiff’s favor).

ANALYSIS

In his motion to dismiss, Sheriff Dart maintains that Plaintiffs’ allegations concerning his personal involvement are conclusory and baseless, and thus the Court should dismiss this claim. To clarify, to recover damages under Section 1983, a plaintiff must establish that the individual defendant was personally responsible for the constitutional violation. See Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir. 2010); Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir. 2009). Specifically, a “plaintiff bringing a civil rights action must prove that the defendant personally participated in or caused the unconstitutional actions.” Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (citation omitted). Meanwhile, “a supervisor is not liable for the acts of her subordinates under § 1983 unless she was aware of and approved her employees’ conduct.” Sides v. City of Champaign, 496 F.3d 820, 827 (7th Cir. 2007); see also Minix, 597 F.3d at 834 (supervisor must have condoned or acquiesced in subordinate’s unconstitutional treatment).

First, viewing the allegations and all reasonable inferences in Plaintiffs’ favor, they have alleged sufficient facts to state a claim to relief that is plausible on its face, thus giving Sheriff Dart fair notice of their claims and the grounds upon which they rest. See Twombly, 550 U.S. at 555, 570. More specifically, Plaintiffs have alleged that Sheriff Dart was personally involved in the formulation and implementation of policies at the Cook County Jail and that he permitted the continuation of the shackling policy. In addition, Plaintiffs maintain that at some time after December 1, 2007, Sheriff Dart learned of the shackling policy at the Cook County Jail, yet despite his actual knowledge of the policy, he waited more than a year to take remedial action. In sum, these allegations sufficiently allege that Sheriff Dart personally participated in or was involved in the implementation or administration of the shackling policy. See Grieveson, 538 F.3d at 776.

08C6946 Zaborowski et al vs. Sheriff of Cook County et al

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Second, Sheriff Dart also argues that based on discovery in this matter, including four Federal Rule of Civil Procedure 30(b)(6) depositions and sworn interrogatories, Plaintiffs have failed to state a claim upon which relief can be granted because Sheriff Dart has refuted the allegation that he was personally involved in the shackling policy. At this juncture, however, Defendant’s argument is without merit because “a Rule 12(b)(6) motion must be decided solely on the face of the complaint and any attachments that accompanied its filing.” Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010) (citing Fed.R.Civ.P. 10(c)). “[D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to his claim.” E.E.O.C. v. Concentra Health Serv., Inc., 496 F.3d 773, 778 (7th Cir. 2007) (citation omitted).
Here, Defendant has failed to attach the Rule 30(b)(6) depositions to his motion to dismiss, although he reproduces one interrogatory answer in his brief. The Court, however, cannot consider the interrogatory answer as part of the pleadings because Plaintiffs make no reference to Defendant’s interrogatory answers in their Second Amended Complaint. See Concentra Health, 496 F.3d at 778. Moreover, the Court will not convert this Rule 12(b)(6) motion into a motion for summary judgment based on one interrogatory answer that is factually disputed. See Hecker v. Deere & Co., 556 F.3d 575, 583 (7th Cir. 2009) (district court has discretion when deciding whether to convert a defendant’s motion to dismiss to a motion for summary judgment); McCready v. eBay, Inc., 453 F.3d 882, 891-92 (7th Cir. 2006) (attached documents cannot contain facts in dispute). Instead, Defendant Dart’s personal involvement argument is best left for summary judgment when the parties can fully brief this issue and present evidence pursuant to Northern District of Illinois Local Rule 56.1. Accordingly, the Court denies Defendant’s motion to dismiss.

08C6946 Zaborowski et al vs. Sheriff of Cook County et al

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

CATHERINE ZABOROWSKI and

)

SIMONE JACKSON, individually and )

on behalf of a class, NICOLE BLAIR, LISA)

BROWN, DANIELLE BRYANT, ISABEL )

CARMONA, MARIANNE CRUZ, CORA )

FLETCHER, DENAE JOHNSON,

)

DEBORAH LEE, FELICIA LIGON,

)

ANGELA OSS, SHEENA RICHARDSON, )

BENNETTA SIDNEY, MONIQUE

)

STARNES, and LATANIA WALTON, )

individually,

)

)

Plaintiffs,

)

)

v.

)

)

THOMAS J. DART, SHERIFF OF COOK )

COUNTY and COOK COUNTY,

)

ILLINOIS,

)

)

Defendants.

)

Case No. 08 C 6946

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

In their Second Amended Class Action Complaint, Plaintiffs Catherine Zaborowski and

Simone Jackson, individually, and on behalf of a class (“Class Plaintiffs”), allege violations of

their Fourteenth Amendment substantive due process rights and state law against Thomas J.

Dart, the Sheriff of Cook County, in his official capacity, in relation to the alleged policy of

shackling pregnant detainees1 during labor, delivery, and/or recovery following delivery. The

Individual Plaintiffs allege an individual capacity claim against Sheriff Dart based on his delay

1 The parties use the terms “detainee” and “inmate” interchangeably, although it is undisputed that Plaintiffs were pretrial detainees and not convicted prisoners. (See R. 257, 8/11/11, Reply Brief, at 2 n.1.)

in instituting any remedial action after he learned about the shackling policy. Before the Court are the parties’ cross-motions for summary judgment on the Class
Plaintiffs’ official capacity and state law claims pursuant to Federal Rule of Civil Procedure 56. Also before the Court is Sheriff Dart’s motion for summary judgment as to the Individual Plaintiffs’ individual capacity claim, also brought pursuant to Rule 56. Because there are genuine disputes as to the material facts underlying the Class Plaintiffs’ substantive due process and state law claims, the Court denies the parties’ cross-motions for summary judgment. The Court, however, grants Sheriff Dart’s motion for summary judgment in regard to the individual capacity claim and dismisses Sheriff Dart in his individual capacity from this lawsuit.
BACKGROUND I. Northern District of Illinois Local Rule 56.1
Northern District of Illinois Local Rule 56.1 assists the Court by “organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence.” Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). “The Rule is designed, in part, to aid the district court, ‘which does not have the advantage of the parties’ familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,’ in determining whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Specifically, Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the moving party contends there is no genuine issue.” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). “The opposing party is required to file ‘a response to each numbered paragraph in the moving party’s statement, including, in the case of
2

any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Also, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that requires the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).
The purpose of Local Rule 56.1 statements is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (“statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture”). The Court may disregard statements and responses that do not properly cite to the record. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005). Moreover, the requirements for responses under Local Rule 56.1 are “not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted.” Bordelon, 233 F.3d at 528. “District courts have broad discretion to enforce and require strict compliance with their local rules.” Benuzzi v. Board of Educ. of City of Chicago, 647 F.3d 652, 655 (7th Cir. 2011).
Many of the parties’ Local Rule 56.1 statements and responses are argumentative, evasive, and do not properly cite to the record. When culling the relevant facts of this case, the Court considered each statement and response individually to determine whether they were proper under the local rules. II. Relevant Facts
This case is partially proceeding as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) for: “All women in the custody of defendant Sheriff on and after December
3

4, 2006, who have been or who will be shackled during labor, delivery, or recovery following delivery.” (R. 217, Pls.’ Rule 56.1 Stmt. Facts ¶ 1.) The Individual Plaintiffs, who are bringing an individual capacity claim against Sheriff Thomas J. Dart, include Nicole Blair, Lisa Brown, Danielle Bryant, Isabel Carmona, Marianne Cruz, Cora Fletcher, Denae Johnson, Deborah Lee, Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, and Latania Walton. (R. 221, Defs.’ Rule 56.1 Stmt. Facts ¶ 3.) Defendants are the Sheriff of Cook County and Cook County, Illinois.2 (Pls.’ Stmt. Facts ¶ 2.)
In 1999, the Sheriff’s Office created the Department of Women’s Justice Services (“DWJS”) that specifically focuses on women offenders. (R. 214, Dart Rule 56.1 Stmt. Facts ¶ 34.) The DWJS’s mission is to create integrated programs and services that break the intergenerational cycle of trauma, addiction, and crime for women and their children. (Id.) These goals are achieved through various programs, including the Maternal Objective Management (“MOMs”) program. (Id.) The MOMs program is a residential program that is currently located outside of the Cook County Jail (“CCJ”) Complex at the Haymarket Center and provides pregnant and postpartum detainees treatment for mental health, physical health, and substance abuse, as well as other supportive services. (Pls.’ Stmt. Facts ¶ 5; Dart Stmt. Facts ¶ 55; Defs.’ Stmt. Facts ¶ 24.)
From December 2006 until October 14, 2008, if a pregnant detainee assigned to the
2 Although Cook County cannot be held vicariously liable for Sheriff Dart’s alleged misconduct in relation to the Individual Plaintiffs’ individual capacity claim, because Illinois counties have the duty to indemnify judgments against county sheriffs in their official capacity, Cook County is a necessary party to this lawsuit. See Askew v. Sheriff of Cook County, 568 F.3d 632, 636-37 (7th Cir. 2009); Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003); see also Moy v. County of Cook, 159 Ill.2d 519, 528-32, 203 Ill.Dec. 776, 640 N.E.2d 926 (Ill. 1994).
4

MOMs program was in labor, a Haymarket staff member would transport her to an outlying hospital, which in most cases was the John H. Stroger, Jr. Hospital of Cook County. (Defs.’ Stmt. Facts ¶ 16; Dart Stmt. Facts ¶ 58.) Also during this time period, correctional officers did not restrain detainees in the MOMs program while they were at the MOMs facility or in transport to or from a medical facility. (Dart Stmt. Facts ¶ 59; R. 242, Pls.’ Stmt. Add’l Facts ¶ 1.) Up until October 14, 2008, once a MOMs participant was admitted to a hospital, she was turned over to External Operations staff to be guarded in accordance with the External Operations policy in effect. (Defs.’ Stmt. Facts ¶ 29; Dart Stmt. Facts ¶ 60.) Effective October 14, 2008, correctional officers did not restrain detainees in the MOMs program in any way during the course of their pregnancy, including transportation to the hospital, labor, delivery, or post-delivery recovery. (Dart Stmt. Facts ¶ 64; Pls.’ Stmt. Add’l Facts ¶ 3.)
Pregnant detainees at the CCJ Complex who were eligible for placement in the MOMs program often remained at the CCJ Complex if the MOMs program was full. (Pl.’s Stmt. Facts ¶ 6.) There is evidence in the record that until April 2010, correctional officers shackled pregnant detainees housed at the CCJ Complex while transporting them to the hospital and at the hospital while they were in labor. (Id. ¶¶ 11, 23(b).) A correctional officer would accompany a pregnant detainee housed at the CCJ Complex in the ambulance on the way to the hospital and one or two other correctional officers would follow in a squad car. (Id. ¶ 12.)
The Sheriff of Cook County’s Policy Number EO-32, External Operations, Hospital Policy and Procedure, effective July 25, 2006, concerning the procedures for transporting detainees housed outside of the CCJ Complex, states:
(a) “In accordance with Illinois Statute 730 ILCS 125/17.5 (Pregnant Female Prisoners) NO handcuffs, leg irons or waist chains shall be used on a female
5

inmate (detainee) who is in labor, this includes while being transported to a medical facility.”
(b) “A female External Operations Officer is to be assigned to the pregnant inmate (detainee) whenever possible.”
(c) “The External Operations Officer is to remain no further than outside the delivery room door once the pregnant inmate (detainee) enters the room.”
(d) “The External Operations Officer will follow all hospital policies that do not conflict with maintaining the security of and preventing the escape of the inmate (detainee).”
(Defs.’ Stmt. Facts ¶ 51.) (emphasis added). The 2008 General Order is substantially the same
as the 2006 General Order regarding pregnant detainees in labor. (Id. ¶ 53.) Neither the 2006 or
2008 General Orders define “labor,” although the 2010 General Order defines “pregnant subject
in labor” as “any individual in the custody of the Cook County Sheriff’s Office who claims to be
in labor or giving birth, appears to be in labor, or who is verified by medical personnel to be in
labor.” (Id. ¶¶ 51, 53, 60.) The relevant 2010 General Order also barred the use of leg shackles
on pregnant detainees regardless of the stage of their pregnancy, including up to two weeks after
delivery. (Id. ¶ 59.) In February 2011, the Sheriff’s Office also adopted a General Order
prohibiting the shackling of “postpartum subjects.” (Pls.’ Stmt. Facts ¶ 27.)
At all times relevant to this lawsuit, and pursuant to Chapter 730, Corrections, specifically 730 ILCS 125/17.5,3 the law in Illinois regarding the use of restraints on pregnant
detainees stated:
Notwithstanding any other statute, directive, or administrative regulation, when a pregnant female prisoner is brought to a hospital from a county jail for the purpose of delivering her baby, no handcuffs, shackles, or restraints of any kind
3 Chapter 55, Counties, of the Illinois Compiled Statutes Annotated, states this same language. See 55 ILCS 5/3-15003.6.
6

may be used during her transport to a medical facility for the purpose of delivering her baby. Under no circumstances may leg irons or shackles or waist shackles be used on any pregnant female prisoner who is in labor. Upon the pregnant female prisoner’s entry to the hospital delivery room, a county correctional officer must be posted immediately outside the delivery room. The Sheriff must provide for adequate personnel to monitor the pregnant female prisoner during her transport to and from the hospital and during her stay at the hospital. (Defs.’ Stmt. Facts ¶ 55; Dart Stmt. Facts ¶ 41.) (emphasis added).
Despite the 2006 and 2008 General Orders and the Illinois statute, there is evidence in the
record that correctional officers shackled pregnant detainees Plaintiff Simone Jackson, who was
a MOMs participant, and Plaintiff Sheena Richardson, who was housed at the CCJ Complex, at
some point during labor, delivery, and/or recovery following delivery in May 2008 and
September 2008, respectively. (Pls.’ Stmt. Facts ¶¶ 14(c), 15, 17(a), (b), (c), 18, 20, 25(a), (b),
26, 28(b).) Also, the Superintendent of External Operations testified that until October 2008,
correctional officers shackled all detainees – whether they were from the MOMs program or the
CCJ Complex – at the hospital until the doctor informed the guards that the detainee was in
“active labor.” (Id. ¶ 22; Ex. 10, Holmes Dep., at 96-97.) Further, the Executive Director of the
Women’s Justice Services testified that in 2006 correctional officers used leg irons to secure
pregnant detainees to the bed frame while they were in the hospital to deliver their children. (Id.
¶ 15; Ex. 9, McDermott Dep., at 19-20.) The Superintendent of Administration also testified that
after 2008, correctional officers continued to shackle pregnant detainees who came from the CCJ
Complex while they were in the hospital to deliver their children. (Id. ¶ 23(b); Ex. 12, Hickerson
Dep, at 43.) Meanwhile, if there was no emergency or life threatening situation, the correctional
officer monitoring the detainee at the hospital was required to obtain a supervisor’s approval
before removing any such restraints. (Id. ¶¶ 19, 26.)
7

Both the 2006 and 2008 General Orders designated all detainees “who are transported, housed or otherwise located outside of the CCDOC [Cook County Department of Corrections] complex” as “high risk.” (Defs.’ Stmt. Facts ¶ 49; Dart Stmt. Facts ¶ 51.) Detainees who are transported or housed at outside medical facilities are considered “high risk” because they are no longer within the secured confines of the Cook County Jail, a lone correctional officer often guards the detainees, they have exposure to the public and medical personnel, and they have easier access to potential weapons. (Dart Stmt. Facts ¶ 51.) Moreover, numerous detainees have attempted to escape while being transported to or from a hospital or while at a hospital, including pregnant or postpartum detainees from the CCJ Complex and MOMs program. (Id. ¶ 52; Defs.’ Stmt. Facts ¶¶ 78-99.) Defendants, however, admit that women in the MOMs program are not likely to be a flight risk and that detainees assigned to the MOMs program wear electronic monitoring devices. (Pls.’ Stmt. Facts ¶¶ 5(d), 7.)
SUMMARY JUDGMENT STANDARD Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining summary judgment motions, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
8

323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted).
ANALYSIS
I. Substantive Due Process Claim
In their Second Amended Complaint, the Class Plaintiffs allege a substantive due process
claim under the Fourteenth Amendment. More specifically, the Class Plaintiffs maintain that the
Sheriff’s shackling policy violates their due process right to their liberty interest in bodily integrity because the use of restraints under the circumstances constitutes punishment.4 See Hart
v. Sheahan, 396 F.3d 887, 891 (7th Cir. 2005); May v. Sheahan, 226 F.3d 876, 884 (7th Cir.
2000); see also Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
Before the Court addresses Defendants’ argument that any such restraint policy was rationally
related to the CCJ’s legitimate penological interests in safety and security, the Court turns to the
official shackling policy at issue.
Although the 2006 and 2008 General Orders for External Operations – Hospital Policy
and Procedure – which applied to pregnant detainees housed outside of the CCJ Complex, stated
that “NO handcuffs, leg irons or waist chains shall be used on a female inmate (detainee) who is
4 In their opening brief, the Class Plaintiffs contend that the Sheriff’s policy amounts to a deliberate indifference to a serious medical need. See Minix v. Canarecci, 597 F.3d 824, 830-31 (7th Cir. 2010). Plaintiffs, however, fail to properly develop this argument. See Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011) (“undeveloped arguments are considered waived”). Indeed, since the beginning of this lawsuit, Plaintiffs have repeatedly characterized the Sheriff’s policy as violative of their liberty interest in bodily integrity. (See, e.g., R. 23, 6/15/09 Motion for Class Cert.; R. 173, 2/17/11 Rule 37 Motion to Bar.) Therefore, the Court addresses the Class Plaintiffs’ claim as a Fourteenth Amendment freedom from bodily restraint claim. See May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000).
9

in labor,” there is evidence in the record that correctional officers shackled pregnant detainees from the MOMs program at some point during labor, delivery, and/or recovery following delivery. Also, despite the Illinois statute forbidding the shackling of pregnant detainees in labor who are detained at a county jail, there is also evidence in the record that correctional officers shackled pregnant detainees assigned to the CCJ Complex while they were being transported to the hospital and also during labor, delivery, and/or recovery following delivery. Indeed, the Sheriff’s Office admits that it shackled pregnant detainees when they were being transported to the hospital and were in pre-labor or post-delivery. (See R. 223, Defs.’ 6/15/11 Brief, at 8.) The Sheriff’s Office, however, maintains that correctional officers did not shackle pregnant detainees during “active labor,” although the 2006 and 2008 General Orders and the Illinois statute do not distinguish between “labor” and “active labor.”
Accordingly, although the Sheriff’s official policy and Illinois statute forbid the use of handcuffs, leg irons, or waist chains on pregnant detainees who are in labor, the Class Plaintiffs maintain that the Sheriff’s Office had a widespread, unwritten practice of shackling pregnant detainees in labor.5 As such, Plaintiffs’ argument must be viewed under the framework set forth in Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because their official capacity claim against Sheriff Dart is a claim against the Sheriff’s Office itself, and they are arguing that there is a widespread custom or practice of shackling pregnant detainees during labor, delivery, and/or recovery following delivery. See Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (“Actions against individual defendants in their official capacities are treated as suits brought against the government entity itself”); see also
5 See R. 131, Second Amend. Compl. ¶ 11. 10

Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 306 (7th Cir. 2010) (“Monell recognized that the premise behind a § 1983 action against a government body is ‘the allegation that official policy is responsible for the deprivation of rights.’”) (citation omitted) (emphasis in original). Three types of policies or customs are recognized in this context:
(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policy-making authority. Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008) (citation omitted); see also Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007). Based on Plaintiffs’ arguments, the Court turns to whether there is evidence in the record of “a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law.” Klebanowski, 540 F.3d at 637. To demonstrate that the Sheriff’s Office is liable for a harmful custom or practice, the Class Plaintiffs must establish that policymakers for the Sheriff’s Office were deliberately indifferent as to the known or obvious consequences of the unwritten shackling policy. See Thomas, 604 F.3d at 303; Montano v. City of Chicago, 535 F.3d 558, 570 (7th Cir. 2008). “In other words, [the policymakers] must have been aware of the risk created by the custom or practice and must have failed to take appropriate steps to protect the plaintiff.” Thomas, 604 F.3d at 303; see also Montano, 535 F.3d at 570. Plaintiffs have presented sufficient evidence raising a genuine dispute as to the material fact that the Sheriff’s Office had a widespread practice of shackling pregnant detainees during labor, delivery, and/or recovery following delivery and that policymakers were aware of the
11

custom or practice and did not take appropriate steps to protect the Class Plaintiffs. See Phelan v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006) (“If the same problem has arisen many times and the municipality has acquiesced in the outcome, it is possible (though not necessary) to infer that there is a policy at work.”); Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995) (the “usual way in which an unconstitutional policy is inferred, in the absence of direct evidence, is by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned, thus in either event adopting, the misconduct of subordinate officers.”). More specifically, not only is there direct evidence in the record that correctional officers shackled pregnant detainees Plaintiffs Simone Jackson and Sheena Richardson at some time during labor, delivery, and/or recovery following delivery, CCJ policymakers testified about the shackling policy. See Waters v. City of Chicago, 580 F.3d 575, 582 (7th Cir. 2009) (a policymaker sets or adopts rules of conduct not merely implements preexisting rules). Specifically, the policymakers testified as follows: (1) the Superintendent of External Operations stated that until October 2008, correctional officers shackled pregnant detainees – whether they were from the MOMs program or the CCJ Complex – at the hospital until the doctor informed the guards that the detainee was in “active labor;” (2) the Executive Director of the Women’s Justice Services testified that in 2006 correctional officers used leg irons to secure pregnant detainees to the bed frame while they were in the hospital to deliver their children; and (3) the Superintendent of Administration testified that after 2008, correctional officers continued to shackle pregnant women who came from the CCJ Complex while they were in the hospital to deliver their children. As such, there is a genuine dispute as to the material fact
12

that policymakers knew of the shackling policy and did not take steps to protect the Class
Plaintiffs. On the other hand, construing the facts and all reasonable inferences in favor of the
Sheriff’s Office, the Class Plaintiffs have not presented sufficient evidence establishing that
there is no genuine dispute as to any material fact and that they are entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56(a).
The Court now turns to the Sheriff’s argument that this restraint policy was rationally
related to the CCJ’s legitimate penological interest in safety and security. In general, conditions
of confinement that are reasonably related to a legitimate and non-punitive governmental
objective are not unconstitutional. See Board v. Farnham, 394 F.3d 469, 477 (7th Cir. 2005);
Murphy v. Walker, 51 F.3d 714, 718 (7th Cir. 1995).6 The Seventh Circuit explains that in “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 punishment of the detainee.’” Hart, 396 F.3d
at 891 (quoting Wolfish, 441 U.S. at 535). “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.”
6 The Sheriff’s Office argues that Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and its progeny are the controlling legal authority. Turner and its progeny, however, concern prison regulations most often in the context of convicted prisoners’ First Amendment rights. See, e.g., Van den Bosch v. Raemisch 658 F.3d 778, 785 (7th Cir. 2011); Vinning-El v. Evans, 657 F.3d 591, 592-93 (7th Cir. 2011). As far as restrictive conditions of confinement as applied to pretrial detainees under the Fourteenth Amendment are concerned, the Seventh Circuit has relied upon Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), applying this standard in the context of shackling policies similar to the one at issue in this lawsuit. See May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000); Murphy v. Walker, 51 F.3d 714, 717-18 (7th Cir. 1995). The Court therefore follows the Supreme Court’s decision in Wolfish and the Seventh Circuit’s decisions in May and Murphy.
13

May, 226 F.3d at 884. As the Hart decision clarifies, pretrial detainees, as well as convicted prisoners, have “an interest in being free from gratuitously severe restraints and hazards, while the detention facility has an interest in protecting the safety of detainees and guards and preventing escapes.” Id. at 893.
Evidence in the record reveals that the External Operations Division has approximately 345 correctional officers who are responsible for the transfer of 3,000 to 4,000 detainees to medical facilities located outside of the CCJ Complex each year. (Defs.’ Stmt. Facts ¶ 14.) These medical facilities include at least three county hospitals and numerous medical clinics. (Id. ¶ 15.) Also, the vast majority of the pregnant detainees from either the CCJ Complex or the MOMs program deliver their children at Stroger Hospital, which is a 1.2 million square foot medical facility at which 300,000 patients are treated annually. (Id. ¶¶ 16, 17.) There is also undisputed evidence in the record that detainees have attempted to escape while being transported to or from the hospital or while at the hospital, including pregnant detainees. The Sheriff’s Office admits, however, that women in the MOMs program are not likely to be a flight risk and that detainees assigned to the MOMs program wear electronic monitoring devices, although the Sheriff’s Office does not admit that pregnant detainees transported from the CCJ Complex are not a flight risk. Finally, there is evidence in the record that at least one correctional officer would accompany pregnant detainees housed at the CCJ Complex while in transit to the hospital and that correctional officers guard all detainees at the outside medical facilities.
Construing these facts and all reasonable inferences in the Class Plaintiffs’ favor, there is sufficient evidence in the record raising a genuine dispute as to the material fact that the
14

shackling policy was rationally related to the non-punitive purpose of protecting the safety of hospital staff and correctional officers, as well as preventing escapes – based on the amount of detainees the Sheriff’s Office guards in transit and at the outlying medical facilities, as well as the previous escape attempts. See Wolfish, 441 U.S. at 546 (“maintaining institutional security and preserving internal order and discipline” are central goals of prison administration). In short, the Sheriff’s Office has presented sufficient evidence raising a genuine issue of fact that the shackling policy was not arbitrary, purposeless, or gratuitous, but was related to a nonpunitive, administrative purpose. See Wolfish, 441 U.S. at 539; Hart, 396 F.3d at 892; Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). The Sheriff’s Office, however, has not presented sufficient evidence to establish that there is no genuine dispute as to any material facts under the circumstances and that they are entitled to judgment as a matter of law – especially because the parties hotly dispute the extent to which the shackling policy was enforced in the first instance. See Fed.R.Civ.P. 56(a). Because genuine disputes of material facts exist in relation to the Class Plaintiffs’ substantive due process claim, the Court denies the parties’ crossmotions for summary judgment as to this claim. II. State Law Negligence Claim
In the Second Amended Complaint, the Class Plaintiffs also allege that the shackling policy is “in willful and wanton disregard of the laws of the State of Illinois.” (R. 131, Second. Am. Compl. ¶ 8.) The Class Plaintiffs’ state law claim sounds in negligence based on the Sheriff’s alleged violation of the Illinois statute that forbids shackling pregnant prisoners in labor. See Calloway v. Kinkelaar, 168 Ill.2d 312, 319-20, 213 Ill.Dec. 675, 659 N.E.2d 1322 (Ill. 1995). As the Supreme Court of Illinois has recognized, “tort liability may arise, on public
15

policy grounds, for tortious conduct that would defeat the aims and goals of a particular statutory scheme” if the statute “was designed to protect human life or property.” Id. at 319; see also Camp v. TNT Logistics Corp., 553 F.3d 502, 506 (7th Cir. 2009) (“a violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence; the violation does not constitute negligence per se.”). To clarify, if “the plaintiff is a member of the protected class and his or her injury is of the type that the statute was intended to protect against, the plaintiff may recover upon establishing that the defendant’s violation of the ordinance or statute proximately caused plaintiff’s injury.” Calloway, 168 Ill.2d at 319. Accordingly, to “recover damages based upon a defendant’s alleged statutory violation, a plaintiff must show that (1) she belongs to the class of persons that the statute was designed to protect; (2) her injury is of the type that the statute was designed to prevent; and (3) the violation proximately caused her injury.” First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 256, 242 Ill.Dec. 113, 720 N.E.2d 1068 (Ill. 1999); see also Camp, 553 F.3d at 506.
Instead of addressing the Class Plaintiffs’ state law negligence claim under this framework, the Sheriff’s Office argues that Plaintiffs cannot establish a state-created liberty interest under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). See Thielman v. Leean, 282 F.3d 478, 480 (7th Cir. 2002) (“Liberty interests can arise from two sources: the Federal Constitution or state law.”). As discussed above, Plaintiffs’ Fourteenth Amendment substantive due process claim is based on their liberty interest in bodily integrity, see Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), while their state law claim is a negligence claim based on the Sheriff’s alleged violation of the Illinois statute forbidding the shackling of pregnant prisoners during labor. See Calloway, 168
16

Ill.2d at 319-20. Therefore, the Sheriff’s arguments based on Sandin are misplaced. The Sheriff’s Office also contends that the Class Plaintiffs’ state law negligence claim is
barred by the one-year limitations period set forth in section 8-101(a) of the Illinois Local Government and Governmental Employees Tort Immunity Act. See 745 ILCS 10/8-101(a). The Sheriff’s Office, however, failed to raise this affirmative defense in the Answer to the Second Amended Complaint and brings this argument for the first time in the present summary judgment motions. The Sheriff’s failure to plead this affirmative defense in the Answer – and the fact that the Sheriff’s Office did not bring this defense until the summary judgment stage of these proceedings – amounts to waiver of the statute of limitations defense, especially because the Sheriff’s Office offers no cogent justification for the delay. See Walker, 526 F.3d at 979. The Court thus turns to the Class Plaintiffs’ negligence claim.
Here, the Class Plaintiffs have presented sufficient evidence creating a genuine dispute as to the material fact that they belong to the class of persons that the anti-shackling statute was designed to protect, namely, pregnant detainees in labor. Indeed, as Representative William Black stated at the Illinois General Assembly, House of Representatives debate on March 10, 1999: “[I]t’s kind of ludicrous, as you say, to think that the woman in labor is going to jump off the bed and run out of the hospital.” (Pls.’ Stmt. Facts ¶ 35.) Moreover, the Class Plaintiffs’ injuries associated with their shackling are the type of injuries the Illinois statute is designed to prevent, including the strain on the unborn child and the mother. (Id., Ex. 1, 3/10/99 Illinois General Assembly debate, at 2-3.) Based on the evidence in the record, a reasonable juror could infer that the Sheriff’s alleged violation of the statute proximately caused the Class Plaintiffs’ injuries. See Rivera v. Garcia, 401 Ill.App.3d 602, 613, 340 Ill.Dec. 224, 927 N.E.2d 1235 (1st
17

Dist. 2010) (“The injury must be the natural and probable result of the negligent act or omission”) (citation omitted).
Because the Sheriff’s Office is a local public entity, however, there is an extra layer of analysis required under the Illinois Local Government and Governmental Employees Tort Immunity Act. See 745 ILCS 10/1-101, et seq. Specifically, in “order to protect public funds from being dissipated by damage awards in tort cases, the Local Government and Governmental Employees Tort Immunity Act was enacted to shield local public entities and public employees from liability for ordinary negligence committed during the exercise of their duties.” Mitchell v. Special Educ. Joint Agreement Sch. Dist. No. 208, 386 Ill.App.3d 106, 111, 325 Ill.Dec. 104, 897 N.E.2d 352 (1st Dist. 2008) (internal citation omitted). Section 2-202 of the Tort Immunity Act states that a “public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” See 745 ILCS 10/2-202. The Tort Immunity Act defines willful and wanton conduct as:
[A] course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. This definition shall apply in any case where a “willful and wanton” exception is incorporated into any immunity under this Act. 745 ILCS 10/1–210; see also Tagliere v. Western Springs Park Dist., 408 Ill.App.3d 235, 24142, 348 Ill.Dec. 643, 944 N.E.2d 884 (1st Dist. 2011). As discussed above, certain policymakers at the Sheriff’s Office, namely, the Superintendent of External Operations, the Executive Director of the Women’s Justice Services, and the Superintendent of Administration, acknowledged that pregnant detainees from both the MOMs program and the CCJ Complex were shackled at some point during labor, delivery,
18

and/or recovery following delivery. Although these individuals were aware of the shackling of pregnant detainees in labor, there is no evidence in the record that they took any action to change the practice or to comply with the Illinois statute that became effective on January 1, 2000. Based on this evidence, a reasonable juror could infer that these policymakers consciously disregarded the pregnant detainees’ and their infants’ health when delivering. (See Pls.’ Stmt. Facts ¶¶ 32, 33.) Therefore, there are genuine disputes of material fact in regard to the Class Plaintiffs’ negligence claim based on the Illinois statute forbidding the shackling of pregnant prisoners in labor. The Court thus denies the parties’ cross-motions for summary judgment as to the Class Plaintiffs’ state law negligence claim. III. Individual Capacity Claim
Last, the Individual Plaintiffs assert that Sheriff Dart, in his individual capacity, had actual knowledge of the practice of shackling pregnant detainees during labor, delivery, and/or recovery following delivery and that Sheriff Dart took more than one year in taking remedial action after he learned of the shackling policy.
In his summary judgment motion, Sheriff Dart contends that the Individual Plaintiffs have failed to present sufficient evidence establishing a genuine dispute as to his personal involvement in the practice of shackling pregnant detainees in labor. “[I]ndividual liability under § 1983 requires ‘personal involvement in the alleged constitutional deprivation.’” Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010) (quoting Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)); see also Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009). It is well settled that “Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in
19

a constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996); see also Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (“A plaintiff bringing a civil rights action must prove that the defendant personally participated in or caused the unconstitutional actions.”) (citations omitted). Moreover, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). Instead, a government official satisfies the personal responsibility requirement if the conduct causing the alleged constitutional deprivation occurs at the official’s direction or with his knowledge and consent. See Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011).
While there is undisputed evidence in the record that Sheriff Dart was aware of the 2006 and 2008 General Orders that stated: “NO handcuffs, leg irons or waist chains shall be used on a female inmate (detainee) who is in labor, this includes while being transported to a medical facility,” the parties dispute whether Sheriff Dart knew of the unwritten practice of shackling pregnant detainees during labor, delivery, and/or recovery following delivery during the relevant time period. Specifically, Sheriff Dart asserts that he was unaware of the specific, day-to-day procedures the correctional officers used in restraining pregnant detainees – as supported by numerous Rule 30(b)(6) witnesses’ deposition testimony. (Dart Stmt. Facts ¶¶ 48, 62, 63; R. 248, Dart Add’l Stmt. Fact ¶ 1.) On the other hand, citing to their Local Rule 56.1(b)(3)(C) Additional Statement of Facts, the Individual Plaintiffs maintain that because Sheriff Dart had personal involvement in many aspects of running the Cook County Jail, a reasonable juror could infer that Sheriff Dart had knowledge of how correctional officers restrained pregnant detainees in labor. The Individual Plaintiffs, however, did not file a Local Rule 56.1(b)(3)(C) Additional
20

Statement of Facts in which they supposedly presented evidence of comments made in a press

release, “internet admissions,” and articles on www.huffingtonpost.com, among other

statements. See United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.

2010) (“summary judgment may only be defeated by pointing to admissible evidence in the

summary judgment record that creates a genuine issue of material fact.”). In sum, the Individual

Plaintiffs do not “set forth specific facts showing that there is a genuine issue for trial,” see

Anderson, 477 U.S. at 255, but only offer speculative arguments – not based on evidence – to

support their claim that Sheriff Dart had knowledge and was personally involved in the shackling

policy. See Truhlar v. United States Postal Serv., 600 F.3d 888, 893 (7th Cir. 2010)

(“unsupported speculation is insufficient to overcome a motion for summary judgment.”). The

Court therefore grants Sheriff Dart’s motion for summary judgment as to the individual capacity

claim.

CONCLUSION

For the these reasons, the Court denies the parties’ cross-motions for summary judgment

as to the Class Plaintiffs’ official capacity claim and state law negligence claim. The Court

grants Sheriff Dart’s motion for summary judgment as to the individual capacity claim. Because

the Court addressed Defendants’ objections to Plaintiffs’ Local Rule 56.1(b)(3)(B) Responses in

the context of each fact, the Court denies Defendants’ motion to strike as moot. The Court also

denies Plaintiffs’ conditional motion to defer Defendant Dart’s individual capacity claim

summary judgment motion as moot.

Date: December 20, 2011

ENTERED

_______________________________ AMY J. ST. EVE United States District Court Judge
21

 
 Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 1 of 36 PageID #:5598

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

Catherine Zaborowski and

)

Simone Jackson, individually and on )

behalf of a class, et al.

)

)

Plaintiffs,

)

)

-vs-

)

)

Sheriff of Cook County and

)

Cook County, Illinois

)

)

Defendants.

)

No. 08 CV 6946 (Judge St. Eve)

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Plaintiffs, with the agreement of defendants, move the Court to

grant preliminary approval to the class settlement agreement attached to

this motion as Exhibit 1.

Grounds for this motion are as follows:

1. The parties, with the assistance of Magistrate Judge Valdez,

have agreed to a settlement of this class action. The proposed settlement

allocates two million seven hundred and twenty thousand dollars

($2,720,000) for distribution to members of the class. Class counsel esti-

mate that each class member will receive an award ranging between five

thousand dollars and forty-five thousand dollars. The size of the award to

an individual class member will be determined by counsel in accordance

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 2 of 36 PageID #:5599
with a formula that weighs the nature and extent of the restraints employed. The Magistrate Judge will resolve any dispute about the appropriate point-count; to discourage meritless appeals, the point-count of any class member who is unsuccessful in her challenge will be reduced. The settlement also incorporates an agreement that class counsel will be paid attorneys’ fees in the amount of 25% of the total settlement fund of four million one hundred thousand dollars ($4,100,000). Class counsel will not receive any additional compensation from members of the class, and waive their right to recover under contingent fee agreement they entered into with many class members before the Court allowed the case to proceed as a class action.
2. Plaintiffs believe that class notice can be mailed within 21 days and suggests that the fairness hearing be set for an early date in August of 2012.
3. Attached as Exhibits 2 and 3 are proposed forms of class notice. Exhibit 2 is the proposed notice for potential class members who have not had an opportunity to opt out; Exhibit 3 is the proposed notice for those who have been provided with that opportunity. The proposed optout form is attached as Exhibit 4 and the proposed claim form is attached as Exhibit 5. Counsel for the parties will agree on appropriate dates for the
-2-

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 3 of 36 PageID #:5600
return of opt-out forms and submission of claim forms after the Court has scheduled the fairness hearing.
It is therefore respectfully requested that the Court grant preliminary approval to the proposed settlement set a date and time for a fairness hearing, and authorize the parties to provide notice by first class mail in the forms attached as exhibits 2 and 3.
Respectfully submitted, /s/ Kenneth N. Flaxman
Kenneth N. Flaxman ARDC 830399 200 S Michigan Ave, Ste 1240 Chicago, Illinois 60604 (312) 427-3200 Thomas G. Morrissey, Ltd. 10249 S Western Ave. Chicago, IL. 60643 (773) 233-7900 attorneys for the plaintiff class
-3-

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 4 of 36 PageID #:5601
Exhibit 1

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 5 of 36 PageID #:5602

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

Catherine Zaborowski and

)

Simone Jackson, individually and on )

behalf of a class, et al.

)

)

Plaintiffs,

)

)

-vs-

)

)

Sheriff of Cook County and

)

Cook County, Illinois

)

)

Defendants.

)

No. 08 CV 6946 (Judge St. Eve)

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action through their respective undersigned counsel to resolve all matters at issue in this action.

I. RECITALS
1. Nature of litigation. Plaintiffs filed the above captioned action, for themselves and all others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of 42 U.S.C. § 1983 and 730 ILCS 125/17.5.
2. Class Certification. Pursuant to the Court's order of June 22, 2010, this case is proceeding as a class action for:

All women in the custody of defendant Sheriff on and after December 4, 2006 who have been or who will be shackled during labor, delivery, or recovery following deliver y.

-1Plaintiffs' Exhibit 1

Page 1

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 6 of 36 PageID #:5603

3. Important Rulings. On December 20, 2011, the Court granted Sheriff Dart’s motion for summary judgment on plaintiffs’ individual capacity claim and denied cross motions for summary judgment on the official capacity claims. The Court denied defendants’ motion to reconsider on January 19, 2012.
4. Settlement Process. Counsel for the parties met with Magistrate Judge Valdez on May 11, 2010, November 16, 2010, and again on February 3, 2012 to explore the possibility of settlement. The final settlement conference resulted in a settlement in principle, subject to approval by the Cook County Board. The proposed settlement takes into account the risks, delay and difficulties involved in establishing a right to recovery in excess of that offered by this settlement and the likelihood that the litigation will be further protracted.
5. Certification by Class Counsel: Class Counsel have investigated the facts and the applicable law and believes that the number of class members is less than one hundred persons. Based on the foregoing, and on an analysis of the benefits that this Settlement Agreement affords the class, Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
6. Denial of Liability: Cook County and Sheriff vigorously contests each and every claim in this action. Cook County and Sheriff maintain that they have consistently acted in accordance with governing laws at all times. Cook County and Sheriff vigorously deny all the material allegations set forth in the Action. Cook County and Sheriff nonetheless have

-2Plaintiffs' Exhibit 1

Page 2

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 7 of 36 PageID #:5604
concluded that it is in its best interest that the Action be settled on the terms and conditions set forth in this agreement. Cook County reached this conclusion after considering the factual and legal issues in the Action, the substantial benefits of a final resolution of the Action, the expense that would be necessary to defend the Action through trial and any appeals that might be taken, the benefits of disposing of protracted and complex litigation, and the desire of Cook County to conduct its business unhampered by the distractions of continued litigation.
7. As a result of the foregoing, Cook County and Sheriff enter into this Stipulation without in any way acknowledging any fault, liability, or wrongdoing of any kind. Neither this Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by Cook County and Sheriff of the truth of any of the allegations made in the Action, or of any liability, fault, or wrongdoing of any kind whatsoever on the part of Cook County or Sheriff, or shall be used as precedent in the future against Cook County and Sheriff in any way.
8. To the extent permitted by law, neither this Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceeding, to establish any liability or admission by Cook County and/or Sheriff, except in any proceedings brought to enforce the Stipulation.

-3Plaintiffs' Exhibit 1

Page 3

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 8 of 36 PageID #:5605
9. Neither this Stipulation, nor any pleading or other paper related in any way to this Stipulation, nor any act or communication in the course of negotiating, implementing or seeking approval of this Stipulation, shall be deemed an admission by Cook County or Sheriff that certification of a class or subclass is appropriate in any other litigation, or otherwise shall preclude Cook County or Sheriff from opposing or asserting any argument it may have with respect to certification of any class(es) or subclass(es) in any proceeding or this Action, or shall be used as precedent in any way as to any subsequent conduct of Cook County or Sheriff except as set forth herein.
II. DEFINITIONS
10. In addition to the foregoing, the following terms shall have the meanings set forth below:
a. “Cook County” means the County of Cook and/or any other successors, assigns or legal representatives thereof.
b. “Sheriff” means the Sheriff of Cook County and/or any other successors, assigns or legal representatives thereof.
c. “Class Counsel” means Thomas G. Morrissey, 10249 South Western Avenue, Chicago, Illinois, 60643, and Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604.
d. “Class Member” means any person who is included within the definition of the Class (and that person’s heirs, executors, ad-

-4Plaintiffs' Exhibit 1

Page 4

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 9 of 36 PageID #:5606

ministrators, successors, and assigns), and who has not timely requested exclusion from the case. e. “Class Period” means the period commencing December 4, 2006 and continuing through February 14, 2011. f. “Effective Date” means that date on which the Court grants final approval of this proposed settlement. g. “Final Settlement Hearing” means the hearing at which the Court considers whether to grant final approval of this proposed settlement. h. “Administrator” means class counsel. i. “Class Members” means all persons who qualify as part of the Class who have not sought to opt-out from this action. j. “Released Claims” means and includes any and all Unknown Claims, known claims, and rights, demands, actions, causes of action, suits, debts, liens, contracts, liabilities, agreements, interest, costs, expenses or losses, for the acts alleged or which are or could have been alleged by the Named Plaintiffs, Class Members, or their unborn children alleging any past, present or future physical or emotional damages as a result of this Action, or relate in any way whatsoever to this Action regarding shackling of pregnant prisoners at the Cook County Jail. This release does not limit or otherwise bar any potential class member from participating as an unnamed class member in any cause of action or claim, whether or not filed to date in a

-5Plaintiffs' Exhibit 1

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Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 10 of 36 PageID #:5607

court of law known or unknown on or before the date of this settlement that arose out of her incarceration at the jail. k. “Released Persons” means Cook County, Cook County’s counsel, Sheriff of Cook County, Sheriff’s counsel, and any of Sheriff’s and Cook County’s past, present or future officers, agents, employees and/or independent contractors, and/or any other successors, assigns, or legal representatives thereof. l. “Class” means all women in the custody of defendant Sheriff who were shackled during labor, delivery, or recovery following delivery during the class period of December 4, 2006 through February 14, 2011. m. “Valid Claim Form” means a Claim Form includes an affirmation under penalties of perjury stating that the Class Member: (1) was or is in the custody of the Sheriff of Cook County on and after December 4, 2006; (2) was transported while in the custody of the Sheriff to a hospital for the purpose of delivering her child, and/or (3) was shackled during labor, delivery, or recovery following delivery. 11. Class Closure Date. As of February 15, 2011, the date of class closure, pregnant detainees at the Cook County Jail are not shackled during labor, delivery, or recovery following delivery. 12. Total Monetary Relief. To resolve all claims at issue in this case involving monetary relief to class members, attorneys' fees, expert and consulting witness fees, litigation costs, and expenses involved in the

-6Plaintiffs' Exhibit 1

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Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 11 of 36 PageID #:5608
administration of the settlement, the parties have agreed that, as part of the consideration for this Agreement, Defendants will establish a fund (the "Settlement Fund") in the amount of four million one hundred thousand dollars ($4,100,000). The parties further agree, as set out below with greater specificity, that no less than the sum of two million seven hundred and twenty thousand dollars ($2,720,000) shall be distributed to class members.
13. Payments to Class Members. The parties, while recognizing that each class member with a valid claim has a distinct claim for damages, agree that the expense, uncertainly, and delay of providing each class member with an individual determination of damages outweighs the benefits of a categorical distribution. Counsel for the parties also recognize that most class members would benefit from counseling provided in conjunction with a monetary award. Accordingly, the parties agree that class counsel, shall assign “points” to each class member and that the payment to each class member shall be computed by dividing two million seven hundred and twenty thousand dollars ($2,720,000) by the total number of points to obtain the dollar value of each point, and that each class member shall receive, subject to the payout procedures set out below, the number of points multiplied by the dollar value per point. Counsel estimate that payments to class members will range from five thousand dollars to forty-five thousand dollars.
14. Assignment of “Points” to Class Members. Class counsel, with the advice of Defense counsel, and subject to challenge by a class

-7Plaintiffs' Exhibit 1

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member, shall assign to each class member a “point score” in accordance with the following rating system:
a. One point to each class member who, while in the custody of the Sheriff and appearing to be in labor, was restrained while being transported to a hospital, did not give birth during this hospital admission, and whose claim is not contrary to hospital or jail records .
b. One point to each class member in category “a” above who gave birth after being transported to a hospital and whose claim is not contrary to hospital or jail records.
c. One point to each class member who, while in labor, was restrained for thirty minutes or more after arriving at a hospital and before delivery and whose claim is not contrary to hospital or jail records.
d. Two points to each class member who was restrained while giving birth and whose claim is not contrary to hospital or jail records.
e. One point to each class member who was restrained during post-delivery recovery and whose claim is not contrary to hospital or jail records.
f. One point to each class member who is a named party in this action.
g. One additional point to class representatives Catherine Zaborowski and Simone Jackson.

-8Plaintiffs' Exhibit 1

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Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 13 of 36 PageID #:5610

Any challenge by a class member to her point total shall be resolved by the Magistrate Judge, whose decision shall be final and not subject to review by the Court. At the discretion of the Magistrate Judge, the lesser of ten thousand dollars ($10,000) or two points may be deducted from the final award of any class member whose challenge is unsuccessful. 15. Counseling Procedure: The parties agree that most class members would benefit from counseling on issues relating to employment, education, housing, personal needs and family relations. In addition, the parties agree that most class members would benefit from family counseling, anger management, substance abuse treatment, job training and financial responsibility programs. Accordingly, the parties agree that one hundred thousand dollars ($100,000) shall be reserved from the settlement fund for the sole and exclusive purpose of providing such services. The parties will agree in advance of the final settlement hearing on the identity of the program providers for these services. The program providers shall provide to counsel for the parties an accounting of its expenses in accordance with generally accepted standards for reporting this type of grant expenditures. 16. Payout Procedure. Payments shall be made to class members in three installments. All payments shall be subject to any state, federal, or other valid liens, including but not limited to Medicaid liens. The first installment shall be forty percent (40%) of the class member’s projected share of the settlement (as estimated by class counsel with the advice of

-9Plaintiffs' Exhibit 1

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Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 14 of 36 PageID #:5611

defense counsel), and shall be made by Cook County within 60 days following the Court’s final approval of this agreement. The class member’s interest in her second and third installments shall be inalienable and may not be pledged, hypothecated, sold, or otherwise transferred. The second installment shall also be forty percent (40%) of the classmember’s projected share of the settlement (as estimated by class counsel with the advice of defense counsel), and shall be paid after the class member has successfully completed the counseling program referred to above. The parties shall submit to the Magistrate Judge any issue concerning payment of the second installment to a class member who is physically or otherwise unable to complete the above referred counseling program. The third installment shall be paid on the one year anniversary of the final approval of this settlement. If a class member fails or is otherwise unable to complete a counseling program, she shall receive the remainder of her settlement on the one year anniversary of the final approval of this settlement. If the sum of the claims exceeds two million seven hundred and twenty thousand dollars ($2,720,000), each claim shall be reduced by a proportionate amount. If the sum of the claims is less than two million seven hundred and twenty thousand dollars ($2,720,000), the remainder shall be held by the Cook County Comptroller until the one year anniversary of the final approval of this settlement to allow payment of any claim submitted late with good cause shown. Any funds remaining at the expiration of this one year period shall revert to the Maternal Objectives Management (“MOMS”) program provided by the Sheriff’s Women’s Justice Program and Haymarket Center.

-10Plaintiffs' Exhibit 1

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None of the reverted funds may be used by Cook County or the Sheriff of Cook County for any other purposes.
17. Administration of the Settlement. An Administration Fund in the amount of $175,000 shall be established. The Fund shall be administered by class counsel and shall include all aspects of the class settlement, other than the issuance of checks. The cost of administration of the settlement, including but not limited to notice to the class, website setup and maintenance costs, locating class members who cannot be reached by first class mail, establishing class membership, processing of claim forms, and the cost of mailing of settlement checks, shall be paid from the Administration Fund in an amount not to exceed one hundred seventy-five thousand dollars. For purposes of performing ministerial work in the administration of this settlement only, class counsel agrees to be compensated a rate of $200 per hour and $100 per hour for the time of legal assistants. Cook County shall reimburse counsel for administrative costs upon receipt of itemized statements, with payments to be made within 30 days of receipt of said statement with a maximum amount not to exceed the Administration Fund of $175,000. Any portion of the $175,000 not expended by the one year anniversary of the final approval of the settlement shall be distributed to class members as part of the third installment referred to in paragraph 16 above.
18. Attorneys’ Fees and Expenses: Attorneys’ fees and costs were not finally negotiated by Class Counsel and counsel for the Released Parties until after full agreement was reached on the monetary relief for

-11Plaintiffs' Exhibit 1

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the class. Class counsel represented that, before the case had been allowed to proceed as a class action, they had entered into written contingent fee agreements with many class members, and that the total amount of attorneys’ fees and expenses incurred to date was in excess of One Million Two Hundred Thousand Dollars ($1,200,000). Class counsel agreed to waive their right to receive any compensation from individual class members, and to reduce their fee claim to $1,025,000 (one million twenty five thousand dollars), or twenty five percent of the total amount of the settlement. Cook County has agreed that this amount of attorneys’ fees is fair and reasonable and will pay this amount as attorneys’ fees. Cook County has also agreed to reimburse class counsel for their costs and litigation expenses in an amount not to exceed eighty thousand dollars ($80,000). Cook County agrees that it will pay attorneys’ fees and expenses in two installments: the first shall be made within 35 days following the Court’s final approval of the settlement and shall be in the amount of half of the fees awarded and the entirety of the costs awarded; the second installment shall be made on January 15, 2013 for the remaining balance. The precise dates are subject to the feasibility of the Cook County Comptroller.
19. Notice and Claims Procedure: Within twenty-one days after the Court has given its preliminary approval to this proposed settlement, notice of the proposed settlement, information about the date and time of the fairness hearing, will be sent by first class mail to the last ascertainable address of each class member. “Ascertainable” means the last known address as enhanced by the United States Postal Service change of address

-12Plaintiffs' Exhibit 1

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database. In the event that this settlement obtains final approval from the Court, the cost of notice shall be deducted from the sum reserved for payment of administration expenses. Potential class members who entered the Cook County Jail before August 1, 2010 have received an opportunity to opt-out with notice of the pendency of the class action; potential class members who entered the Cook County Jail after August 1, 2010 shall receive notice of this settlement and an opportunity to opt-out of the settlement.
20. To participate in this settlement, each Class Member must submit a sworn Claim Form postmarked no later than _______ __, 2012. The Claim Form must provide the information specified in Section 10(m) above and an affirmation under penalty of perjury that the information set forth is true and correct.
21. The Class Notice will include a forwarding and return address, which will be a Post Office Box controlled by Class Counsel. Class Counsel shall provide Cook County and Sheriff with copies of all claim forms received.
22. Within 60 days of receipt of a claim form, class counsel shall determine whether the claimant appears to be a class member. Class counsel shall inform any claimant deemed by counsel not to be a class member of the reason for this determination and of the claimant’s right to petition the Court for a review of this determination.
23. Class counsel shall promptly notify Cook County and Sheriff of any determination that a claimant appears to be a class member. The

-13Plaintiffs' Exhibit 1

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first installment of all such claims shall be paid by Cook County unless, within 45 days of receipt of any such certification, Cook County or Sheriff provides class counsel with written notice of its challenge that a particular claimant is a member of the class. Counsel for the parties shall meet and attempt to resolve any such challenges. Upon counsel failing to reach an agreement, the dispute shall be submitted to the Magistrate Judge for resolution. The Court specifically reserves jurisdiction for the Magistrate Judge to resolve any challenges to class membership. The determination by the Magistrate Judge will be final and non-appealable. Neither Cook County nor the Sheriff shall be entitled to any costs, fees, or expenses associated with resolving any challenges to class membership. Class counsel shall be compensated from the administrative fund for their nonduplicative services in this regard at the rate set out in paragraph 17 above.
III. DECEASED, DISSOLVED, BANKRUPT, OR INCAPACITATED CLASS MEMBERS
24. Where a Class Member is deceased and a payment is due to that Class Member, upon receipt of a proper notification and documentation, the settlement payment shall be made in accordance with Illinois law.
25. Where a Class Member has been declared bankrupt, or is the subject of an open and ongoing bankruptcy proceeding, and a payment is due to the Class Member, upon receipt of proper notification and documentation, the settlement payment shall be made to such Class Member in accordance with applicable United States Bankruptcy Code laws.

-14Plaintiffs' Exhibit 1

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IV. COMMUNICATIONS WITH THE CLASS
26. The Class Notice shall list Class Counsels’ addresses and phone numbers. Other than as provided for in this Stipulation, communications relating to the Action or this Settlement with persons receiving Class Notices and Potential Class Members shall be through Class Counsel. Nothing in this Stipulation shall be construed to prevent Cook County, Sheriff, their employees, agents or representatives from communicating with Potential Class Members or Class Members in the normal course of its operations.

V. CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION OF STIPULATION
27. If the Court disapproves this Stipulation or fails to rule, or if the Court enters the Final Judgment but it is reversed or vacated on appeal, this Stipulation shall be null and void and of no force and effect. If the Court materially modifies any provision of the Stipulation or proposed Final Judgment, or if either is materially modified on appeal or remanded to the Court for modification, with Cook County and Sheriff determining what is “material” in the use of its reasonable discretion, Cook County, Sheriff or Class Counsel shall have the option of terminating this Stipulation and withdrawing this consent to the entry of the Final Judgment, in which case this Stipulation shall be null and void and of no force and effect.
28. If any financial obligation is imposed upon Cook County in addition to or greater than those specifically set out in this Stipulation, Cook County may withdraw its consent to the entry of the Final Judgment, in which case this Stipulation shall be null and void and of no force and effect.
-15-

Plaintiffs' Exhibit 1

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Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 20 of 36 PageID #:5617

In addition, Cook County or Sheriff, at their option, may withdraw its consent to the entry of the Final Judgment if more than twenty (20%) percent of the qualified class members opt out of this litigation.
VI. OBJECTIONS AND REQUESTS FOR EXCLUSION
29. Any class member may file a notice of intent to object to the proposed settlement. The written notice of intent to object must be filed with the Clerk of the Court not later than July 15, 2012.
30. Class Counsel and their respective firms, agree not to represent, encourage, or solicit any person to request exclusion from the Settlement Class or to benefit financially from a referral of any such person. In addition, Class Counsel and their respective firms agree not to represent, encourage, solicit or otherwise assist any person who requests exclusion from the Settlement Class, or seek to represent any form of opt-out class from this Settlement, or any other person, in any subsequent litigation that person may bring against Cook County, Sheriff of Cook County, or their employees regarding the Released Claims or any related claims of this settlement.
VII. REPRESENTATIONS AND WARRANTIES
31. Plaintiffs and Class Counsel warrant and represent that no promise or inducement has been offered or made for the Release in paragraph 10(j) except as set forth herein, that the Release is executed without any reliance whatsoever on any statements or representations not contained herein, including but not limited to any statements, conduct, disclosure or non-disclosure or representations regarding discovery in the Ac-

-16Plaintiffs' Exhibit 1

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tion, and that the Release reflects the entire agreement among the parties with respect to the terms of the Release. The warranties and representations made herein shall survive the execution and delivering of the Release and shall be binding upon the parties' heirs, representatives, successors and assigns.
VIII. RELEASES
32. Upon the Effective Date, Plaintiffs, all Class Members, and their heirs, trustees, executors, administrators, principals, beneficiaries, assigns and successors will be bound by the Final Judgment and conclusively deemed to have fully released, acquitted and forever discharged, as defined in paragraph 10(j) above.
33. All people and entities who meet the Class Definition and who have not timely filed “opt out” forms shall be forever barred from prosecuting their own lawsuit asserting any of the claims at issue in this litigation and they and their heirs, executors, administrators, representatives, agents, partners, successors and assigns shall be deemed to have fully released and forever discharged the Released Persons (defined below) from all Released Claims (defined below). “Released Persons” means County of Cook and the Sheriff of Cook County each of their past or present directors, officers, employees, agents, Board members, attorneys, advisors, consultants, representatives, partners, affiliates, parents, subsidiaries, related companies, and divisions, and each of their predecessors, successors, heirs and assigns.

-17Plaintiffs' Exhibit 1

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IX. MISCELLANEOUS PROVISIONS
34. The parties hereto and their undersigned counsel agree to undertake their best efforts and mutually cooperate to effectuate this Stipulation and the terms of the proposed settlement set forth herein, including taking all steps and efforts contemplated by this Stipulation, and any other steps and efforts which may become necessary by order of the Court or otherwise. The parties hereto further agree to defend this Stipulation against objections made to final approval of the Settlement or in any appeal of the Final Judgment or collateral attack on the Stipulation or Final Judgment. Class Counsel will not seek from Cook County any additional compensation, including attorney fees, cost, expenses or reimbursements for any work that may be involved in defending this agreement.
35. The undersigned counsel represent that they are fully authorized to execute and enter into the terms and conditions of this Stipulation on behalf of their respective clients. This agreement has been approved by the Litigation Subcommittee of the Cook County Board.
36. Except as otherwise provided between the parties, this Stipulation contains the entire agreement between the parties hereto, and supersedes any prior agreements or understandings between them. All terms of this Stipulation are contractual and not mere recitals, and shall be construed as if drafted by all parties hereto. The terms of this Stipulation are and shall be binding upon each of the parties hereto, their agents, attorneys, employees, successors and assigns, and upon all other persons claiming any interest in the subject matter hereof through any of the parties hereto, including any Class Member.

-18-

Plaintiffs' Exhibit 1

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37. To the extent permitted by law, this Stipulation may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of this Stipulation.
38. Enforcement and Reservation of Jurisdiction: The parties agree that the Court will reserve jurisdiction to enforce the provisions of this agreement and that the Court may, for good cause, adjust and reset the dates set out in paragraph 20 above for a reasonable period following final approval of this settlement. If the Court approves the settlement, it will enter an order that will dismiss the litigation with prejudice as to all Class Members, except as to those persons who have timely filed “opt-out” forms.
Agreed to, this ___th day of May, by the party representatives be-

low who have affixed their signatures showing their assent to the above

Class Settlement Agreement.

Plaintiffs’ Counsel:

/s/ Kenneth N. Flaxman

/s/ Thomas G. Morrissey

Kenneth N. Flaxman

Thomas G. Morrissey

200 S. Michigan Ave Suite 1240 10249 S. Western Ave

Chicago, IL 60604-2430

Chicago, IL 60643

(312) 427-3200

(773) 233-7900

Defendants are represented in the litigation by:

/s/ Michael Gallagher, ASA (with consent) Michael Gallagher, ASA Cook County State's Attorney's Office 50 W. Washington Room 500 Chicago, IL 60602 (312) 603-6572
-19-

Plaintiffs' Exhibit 1

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Exhibit 2

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 25 of 36 PageID #:5622

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

Catherine Zaborowski and

)

Simone Jackson, individually and on

)

behalf of a class, et al.

)

)

Plaintiffs,

)

)

-vs-

)

)

Sheriff of Cook County and

)

Cook County, Illinois

)

)

Defendants.

)

No. 08 CV 6946 (Judge St. Eve)

NOTICE OF HEARING ON SETTLEMENT OF CLASS ACTION

TO: All women who were shackled during labor, delivery, or recovery following delivery while in the custody of the Sheriff of Cook County between December 4, 2006 and February 14, 2011.
A proposed settlement of this case has been submitted to the Court for approval. This document describes the proposed settlement and gives instructions about what you must do if you are a class member and a) wish to participate in the settlement or b) exclude yourself form this case, or c) if you believe that the proposed settlement should not be approved.
PLEASE READ THIS NOTICE CAREFULLY THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU.
YOU MAY BENEFIT FROM READING THIS NOTICE
WHAT THIS CASE IS ABOUT
The plaintiffs in this action are the class of persons identified above. The defendants are the Sheriff of Cook County and Cook County, Illinois. The named plaintiffs filed this action, for themselves and others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of rights secured by the federal and state law.
On June 22, 2010, United States District Judge Amy J. St. Eve ordered that the case may proceed as a class action. Thereafter, after the parties had fully prepared for trial, counsel for the parties were able to negotiate a settlement.
THE PROPOSED SETTLEMENT
Counsel for the parties have agreed to a settlement of all claims at issue in this case. Defendants have agreed to pay $4,100,000 to cover damages for class members, incentive awards for the named plaintiffs, fees and costs of counsel, and administrative expenses.

Plaintiffs' Exhibit 2

Page 1

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 26 of 36 PageID #:5623

Two million seven hundred and twenty thousand dollars ($2,720,000) is allocated in the settlement for payment to class members. If the Court approves the proposed settlement, each class member will receive an award determined by the nature and extent of restraint during labor and post-delivery recovery. Each class member will be assigned a number of points, ranging from one to a maximum of nine. Class counsel estimates that class members will receive an award of more than five thousand dollars per point, or awards ranging from five to forty-five thousand dollars:

Restrained while being transported to a hospital while in labor, but did not give birth Restrained while being transported to a hospital while in labor and gave birth Restrained for thirty minutes or more while in labor at a hospital Shackled while giving birth

One point
One point Two point Two point

Restrained during post-delivery recovery A named party

One point One point

A class representative

One point

Payments to class members are subject to any state, federal, or other valid liens, including Medicaid liens and will be made in three installments. The first payment will be made within 60 days following the Court’s approval of the settlement, and will be 40% of the class member’s projected share of the settlement. The second installment shall be in the same amount as the first installment, and will be paid after completion of a counseling program (described below), or with the third and final installment on the one-year anniversary of the date the Court approves this settlement,
One hundred thousand dollars ($100,000) of the settlement is allocated for counseling class members on issues relating to employment, education, housing, personal needs and family relations. Attorneys’ fees and costs, which were negotiated after full agreement had been reached on the monetary relief for the class, will be paid by defendants in the amount of $1,025,000, or 25% of the settlement fund.
RELEASE
If you participate in this settlement, you will give the Defendants a “release” which means that you cannot sue about anything not pending in court that arises out of your incarceration at the Cook County Jail.
CLASS COUNSEL’S OPINIONS
The class is represented by attorneys Thomas G. Morrissey, 12049 South Western Avenue, Chicago, Illinois, 60643 (773) 238-4235 and Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604 (312) 698-9084. Class Counsel has investigated the facts and the applicable law and consider this settlement to be in the best interest of the class.
NO ADMISSION OF LIABILITY
By settling this lawsuit, Defendants are not admitting that they have done anything wrong. Defendants expressly deny any wrongdoing.

-2Plaintiffs' Exhibit 2

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NOW, THEREFORE, NOTICE:
A hearing will be held before this Court in Courtroom 1241, United States Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, on ________ __, 2012 at __:__ _.m., or as soon thereafter as counsel can be heard. The hearing shall be for the purpose of determining whether the terms of the proposed class settlement are fair, reasonable, and adequate, and whether the proposed settlement should be approved by the Court. This hearing may be adjourned from time to time without further written notice to the class.
Any class member who wishes to be heard either in support or in opposition to the proposed settlement must file his or her written objection or comment with the Clerk of the United States District Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604 on or before ________ __, 2012. Written objections or comments will be considered whether or not the class member attends the hearing.
YOUR OPTIONS
If you are an eligible class member and wish to receive a portion of the settlement proceeds, you must return the claim form at the end of this notice by ________ __, 2012. If the settlement is finally approved by the Court, and if you are an eligible class member, you will receive a check in an amount calculated in the manner explained above.
If you do not wish to participate in this case, you have the right to opt-out, which means to exclude yourself from both the class action and the settlement. To opt-out, you must return the opt-out form to one of the attorneys for plaintiff, Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604. The form must be received by ___________ __, 2012.
The foregoing references to the lawsuit and the settlement agreement are only summaries. The settlement agreement and all other papers filed in this action may be examined and copied in the Office of the Clerk, 219 South Dearborn Street, 20th floor, Chicago, Illinois between the hours of 9:00 a.m. and 4:30 p.m. Monday through Friday.
Do not call either the Office of the Clerk or Judge St. Eve for information about the case.
Thomas G. Bruton Clerk, United States District Court

-3Plaintiffs' Exhibit 2

Page 3

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Exhibit 3

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 29 of 36 PageID #:5626

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

Catherine Zaborowski and

)

Simone Jackson, individually and on

)

behalf of a class, et al.

)

)

Plaintiffs,

)

)

-vs-

)

)

Sheriff of Cook County and

)

Cook County, Illinois

)

)

Defendants.

)

No. 08 CV 6946 (Judge St. Eve)

NOTICE OF HEARING ON SETTLEMENT OF CLASS ACTION

TO: All women who were shackled during labor, delivery, or recovery following delivery while in the custody of the Sheriff of Cook County between December 4, 2006 and February 14, 2011.
A proposed settlement of this case has been submitted to the Court for approval. This document describes the proposed settlement and gives instructions about what you must do if you are a class member and a) wish to participate in the settlement or b) exclude yourself form this case, or c) if you believe that the proposed settlement should not be approved.
PLEASE READ THIS NOTICE CAREFULLY THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU.
YOU MAY BENEFIT FROM READING THIS NOTICE
WHAT THIS CASE IS ABOUT
The plaintiffs in this action are the class of persons identified above. The defendants are the Sheriff of Cook County and Cook County, Illinois. The named plaintiffs filed this action, for themselves and others similarly situated, in the United States District Court for the Northern District of Illinois alleging violations of rights secured by the federal and state law.
On June 22, 2010, United States District Judge Amy J. St. Eve ordered that the case may proceed as a class action. Thereafter, after the parties had fully prepared for trial, counsel for the parties were able to negotiate a settlement.
THE PROPOSED SETTLEMENT
Counsel for the parties have agreed to a settlement of all claims at issue in this case. Defendants have agreed to pay $4,100,000 to cover damages for class members, incentive awards for the named plaintiffs, fees and costs of counsel, and administrative expenses.

Plaintiffs' Exhibit 3

Page 1

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 30 of 36 PageID #:5627

Two million seven hundred and twenty thousand dollars ($2,720,000) is allocated in the settlement for payment to class members. If the Court approves the proposed settlement, each class member will receive an award determined by the nature and extent of restraint during labor and post-delivery recovery. Each class member will be assigned a number of points, ranging from one to a maximum of nine. Class counsel estimates that class members will receive an award of more than five thousand dollars per point, or awards ranging from five to forty-five thousand dollars:

Restrained while being transported to a hospital while in labor, but did not give birth Restrained while being transported to a hospital while in labor and gave birth Restrained for thirty minutes or more while in labor at a hospital Shackled while giving birth

One point
One point Two point Two point

Restrained during post-delivery recovery A named party

One point One point

A class representative

One point

Payments to class members are subject to any state, federal, or other valid liens, including Medicaid liens and will be made in three installments. The first payment will be made within 60 days following the Court’s approval of the settlement, and will be 40% of the class member’s projected share of the settlement. The second installment shall be in the same amount as the first installment, and will be paid after completion of a counseling program (described below), or with the third and final installment on the one-year anniversary of the date the Court approves this settlement,
One hundred thousand dollars ($100,000) of the settlement is allocated for counseling class members on issues relating to employment, education, housing, personal needs and family relations. Attorneys’ fees and costs, which were negotiated after full agreement had been reached on the monetary relief for the class, will be paid by defendants in the amount of $1,025,000, or 25% of the settlement fund.
RELEASE
If you participate in this settlement, you will give the Defendants a “release” which means that you cannot sue about anything not pending in court that arises out of your incarceration at the Cook County Jail.
CLASS COUNSEL’S OPINIONS
The class is represented by attorneys Thomas G. Morrissey, 12049 South Western Avenue, Chicago, Illinois, 60643 (773) 238-4235 and Kenneth N. Flaxman, 200 South Michigan Avenue, Suite 1240, Chicago, Illinois 60604 (312) 698-9084. Class Counsel has investigated the facts and the applicable law and consider this settlement to be in the best interest of the class.
NO ADMISSION OF LIABILITY
By settling this lawsuit, Defendants are not admitting that they have done anything wrong. Defendants expressly deny any wrongdoing.

-2Plaintiffs' Exhibit 3

Page 2

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 31 of 36 PageID #:5628
NOW, THEREFORE, NOTICE:
A hearing will be held before this Court in Courtroom 1241, United States Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, on ________ __, 2012 at __:__ _.m., or as soon thereafter as counsel can be heard. The hearing shall be for the purpose of determining whether the terms of the proposed class settlement are fair, reasonable, and adequate, and whether the proposed settlement should be approved by the Court. This hearing may be adjourned from time to time without further written notice to the class.
Any class member who wishes to be heard either in support or in opposition to the proposed settlement must file his or her written objection or comment with the Clerk of the United States District Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604 on or before ________ __, 2012. Written objections or comments will be considered whether or not the class member attends the hearing.
YOUR OPTIONS
If you are an eligible class member and wish to receive a portion of the settlement proceeds, you must return the claim form at the end of this notice by ________ __, 2012. If the settlement is finally approved by the Court, and if you are an eligible class member, you will receive a check in an amount calculated in the manner explained above.
The foregoing references to the lawsuit and the settlement agreement are only summaries. The settlement agreement and all other papers filed in this action may be examined and copied in the Office of the Clerk, 219 South Dearborn Street, 20th floor, Chicago, Illinois between the hours of 9:00 a.m. and 4:30 p.m. Monday through Friday.
Do not call either the Office of the Clerk or Judge St. Eve for information about the case.
Thomas G. Bruton Clerk, United States District Court

-3Plaintiffs' Exhibit 3

Page 3

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 32 of 36 PageID #:5629
Exhibit 4

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 33 of 36 PageID #:5630

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

CATHERINE ZABOROWSKI and SIMONE JACKSON, individually and on behalf of a class,
Plaintiffs,
-vs-
SHERIFF OF COOK COUNTY, and COOK COUNTY, ILLINOIS
Defendants.

) ) ) ) ) ) No. 08 CV 6946 ) ) (Judge St. Eve) ) ) ) )

OPT OUT FORM
I have read the notice which came with this opt-out form and I do not desire to participate as a member of the class in the above named case. I understand that by signing this form, I will not be represented by class counsel, but must proceed on my own.

Dated: ____________________

____________________________________
name

____________________________________________ address

____________________________________________

city

state

zip

If you do not wish to participate in this case, you must return this "opt out" form to the Law Ofﬁces of Kenneth N. Flaxman, 200 South Michigan
Avenue, Suite 1240, Chicago, Illinois 60604 by ________ --, 2012. This means that the form must be received at the ofﬁce of class counsel by _______ __, 2012 (not simply put in the mail by then).

Plaintiffs' Exhibit 4

Page 1

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 34 of 36 PageID #:5631
Exhibit 5

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 35 of 36 PageID #:5632

preprinted name preprinted address preprinted city, state zip

MAKE ADDRESS CORRECTIONS BELOW
__________________________________ Address
__________________________________ City
__________________________________ State and Zip

THIS CLAIM FORM MUST BE RETURNED BY ________ __, 2012 TO Claims Administrator P.O. Box 4602
Oak Park, Illinois 60303 (773) 896-9016

YOU MUST FILL OUT THIS FORM IF YOU WERE SHACKLED DURING LABOR, DELIVERY, OR RECOVERY FOLLOWING DELIVERY WHILE IN THE CUSTODY OF THE SHERIFF OF COOK COUNTY BETWEEN DECEMBER 4, 2006 AND FEBRUARY 14, 2011 AND YOU WANT TO PARTICATE IN THE SETTLEMENT IN Zaborowski v. Sheriff

I certify under penalties of perjury as provided by law that I was shackled during labor, delivery, or recovery following delivery while in the custody of the Sheriff of Cook County between December 6, 2006 and February 14, 2011.

Dated: ___________________

____________________________ signature

Plaintiffs' Exhibit 5

Page 1

Case: 1:08-cv-06946 Document #: 298 Filed: 05/17/12 Page 36 of 36 PageID #:5633
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of May, 2012, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Michael Gallagher, ASA, 500 Daley Center, Chicago, IL 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: 1:08-cv-06946 Document #: 305 Filed: 08/30/12 Page 1 of 2 PageID #:5669

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHERINE ZABOROWSKI and SIMONE JACKSON, individually and behalf of a class, et al.,
Plaintiffs,
v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS,
Defendants.

) ) ) ) ) Case No. 08 C 6946 ) ) ) ) ) ) )

ORDER OF DISMISSAL

AMY J. ST. EVE, District Court Judge:

IT IS HEREBY ORDERED:

The Court has reviewed the proposed settlement of this class action and, having held a hearing on the fairness of the settlement, with no objection having been filed, finds that notice of the proposed settlement has been provided to all class members by first class mail to her last known address and that the proposed settlement is fair, reasonable, and adequate. Accordingly, IT IS ORDERED that the proposed settlement be, and the same hereby is, approved.

IT IS FURTHER ORDERED:

1. This case is dismissed without prejudice with leave to reinstate on or before August 30, 2013.

2. In the event a motion to reinstate is not filed on or before August 30, 2013, the case shall be deemed dismissed with prejudice without further order of the Court.

3. The Court retains jurisdiction to enforce the terms of the settlement agreement until, and including, August 30, 2013.

Case: 1:08-cv-06946 Document #: 305 Filed: 08/30/12 Page 2 of 2 PageID #:5670 4. Defendant Cook County shall pay to attorneys Kenneth N. Flaxman and Thomas G. Morrissey the sum of $80,000 as reimbursement for expenses and $1,025,000 as compensation for attorneys fees, the fees to be paid in two installments as set out in the settlement agreement.
Date: August 30, 2012 ENTERED _______________________________ AMY J. ST. EVE United States District Court Judge
2

 
 Case: 1:08-cv-06946 Document #: 327 Filed: 10/19/17 Page 1 of 3 PageID #:5918

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

CATHERINE ZABOROWSKI, et al.,

)

)

Plaintiffs,

)

Case No. 08 C 6946

)

v.

)

Judge Amy St. Eve

)

SHERIFF OF COOK COUNTY and

)

COOK COUNTY, ILLINOIS,

)

)

Defendants.

)

ORDER

The Court, in its discretion, grants Defendant’s motion for relief from final judgment brought pursuant to Federal Rule of Civil Procedure 60(b)(6). [320]. The Court denies the Haymarket Center’s Rule 24(a)(2) motion to intervene in which it seeks to enforce the settlement agreement. [318]. Further, the Court denies as moot Plaintiffs’ motion to close the administration of the settlement because the Court already granted the parties’ agreed motion to close out the administration of the settlement on January 4, 2017. [316]. Plaintiffs and Defendant must submit an agreed proposed final order in accordance with this ruling by no later than October 26, 2017.

STATEMENT

After conducting a fairness hearing, on August 30, 2012, the Court approved the parties’ settlement agreement and the Court dismissed this lawsuit with prejudice on August 30, 2013. Pursuant to the settlement agreement, any settlement funds remaining after the distribution to the class members are to be used for the Maternal Objective Management (“MOMS”) program administered by the not-for-profit Haymarket Center. On December 14, 2016, the parties filed an agreed motion to close out the administration of the settlement that the Court granted on January 4, 2017. On that same date, the Court required counsel to prepare and submit a proposed order. Counsel failed to do so. On September 21, 2017, Plaintiffs filed the present motion and proposed order, which includes that the remaining balance of the settlement funds shall be paid to the Haymarket Center pursuant to the settlement agreement. Defendant Sheriff of Cook County then moved for relief from the Court’s final judgment pursuant to Rule 60(b)(6) seeking to prevent payment of the remaining settlement funds to the Haymarket Center because the Sheriff’s Office did not renew its contract with the Haymarket Center in relation to the MOMS program at issue in the settlement agreement. For the following reasons, the Court, in its discretion grants Defendant’s Rule 60(b)(6) motion based on the exceptional circumstances in this matter. Banks v. Chicago Bd. of Educ., 750 F.3d 663, 668 (7th Cir. 2014) (“Relief under this provision is an ‘extraordinary remedy’ and should be granted only in ‘exceptional circumstances.’”).

Case: 1:08-cv-06946 Document #: 327 Filed: 10/19/17 Page 2 of 3 PageID #:5919
LEGAL STANDARD
“Rule 60(b) allows a court to relieve a party from a final judgment, order, or proceeding.” Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir. 2011). “Rule 60(b)(6) is a catch-all provision that allows a judgment to be set aside for ‘any other reason that justifies relief[.]’” Philos Techs., Inc. v. Philos & D, Inc., 802 F.3d 905, 917 (7th Cir. 2015) (citation omitted). “A motion under the ‘catchall’ provision contained in Rule 60(b)(6) [] must be made ‘within a reasonable time.’” Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006). “[W]hat constitutes ‘reasonable time’ for a filing under Rule 60(b) depends on the facts of each case.” Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004) (per curiam).1 The Seventh Circuit reviews the denial of a motion brought under Rule 60(b) for an abuse of discretion. Philos Techs., 802 F.3d at 917; see also Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (“The district court has great latitude in making a Rule 60(b) decision because that decision is discretion piled on discretion.”) (internal quotation marks omitted).
ANALYSIS
The Court first notes that the Sheriff’s Office is not seeking to enforce the settlement, but instead, it seeks to modify or amend the final judgment, which the Court can consider under Rule 60(b)(6). On the other hand, the Haymarket Center has moved to intervene and seeks to enforce the settlement. The Court, however, does not have jurisdiction to enforce the settlement agreement because pursuant to the order of dismissal, the Court dismissed this lawsuit with prejudice on August 30, 2013. See Dupuy v. McEwen, 495 F.3d 807, 809 (7th Cir. 2007) (“when a suit is dismissed with prejudice, it is gone, and the district court cannot adjudicate disputes arising out of the settlement that led to the dismissal”); Shapo v. Engle, 463 F.3d 641, 643 (7th Cir. 2006) (“district court does not have jurisdiction to enforce a settlement agreement merely because the agreement was the premise of the court’s dismissal of the suit that the agreement settled”). In addition, a party cannot intervene in a case that is no longer pending. See NAACP v. New York, 413 U.S. 345, 365 (1973) (Under Rule 24, “the court where the action is pending must first be satisfied as to timeliness”). Accordingly, the Court denies the Haymarket Center’s motion to intervene.
As the Court explained in its December 20, 2011 summary judgment ruling, in 1999, the Sheriff’s Office created the Department of Women’s Justice Services (“DWJS”) that specifically focuses on women offenders. The DWJS’s mission is to create integrated programs and services that break the intergenerational cycle of trauma, addiction, and crime for women and their children. At that time, these goals were achieved through various programs, including the MOMs program, which was a residential program located outside of the Cook County Jail Complex at the Haymarket Center. The MOMS program provided pregnant and postpartum
1 Based on the unique facts of this case and the events occurring after the entry of the final judgment, the Court concludes that Defendant has filed this motion within a “reasonable time.” See Ingram, 371 F.3d at 952; Lowe v. McGraw-Hill Companies, Inc., 361 F.3d 335, 342 (7th Cir. 2004).
2

Case: 1:08-cv-06946 Document #: 327 Filed: 10/19/17 Page 3 of 3 PageID #:5920
detainees treatment for mental health, physical health, and substance abuse, as well as other supportive services.
In the present Rule 60(b)(6) motion, the Sheriff’s Office maintains that it no longer uses the MOMS program at Haymarket Center and that the Sheriff’s Office provides the substance abuse and treatment services previously provided by the MOMS program. Neither Plaintiff nor the Haymarket Center dispute this fact. The Sheriff’s Office argues that because it is impossible for the settlement balance to be used by Haymarket Center for the benefit of women in the Sheriff’s custody as provided in the settlement agreement, it seeks to amend the final judgment allowing the Sheriff’s Office to retain the balance of the settlement funds by placing them in a special purpose fund account with Cook County for the limited purpose of supporting a “MOMS” type program within the Sheriff’s Office. The Court agrees.
The parties’ settlement is for the benefit of the women in the Sheriff Office’s custody, not the Haymarket Center. The Court has no doubt the not-for-profit Haymarket Center’s MOMS program – that serves the Chicago area at large – has successful treatment programs. That being said, the settlement agreement between Plaintiffs and the Sheriff’s Office concerned women who were in the Sheriff’s custody. Because the Sheriff’s Office no longer has a contract with the Haymarket Center in conjunction with the MOMS program, but instead provides for abuse and treatment services in-house, the best solution is to amend the judgment allowing the Sheriff’s Office to retain the balance of the settlement funds by placing the funds in a special purpose account with Cook County for the limited purpose of providing in-house counseling and treatment to women in the Sheriff’s custody who otherwise would have been served by the MOMS program. The funds must be used for this limited purpose. Therefore, the Court, in its discretion, grants Defendant’s Rule 60(b)(6) based on these exceptional circumstances.

Dated: October 19, 2017

______________________________ AMY J. ST. EVE United States District Court Judge

3

 
 Case: 1:08-cv-06946 Document #: 337 Filed: 04/09/18 Page 1 of 4 PageID #:5994

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

CATHERINE ZABOROWSKI, et al.,

)

)

Plaintiffs,

)

Case No. 08 C 6946

)

v.

)

Judge Amy St. Eve

)

SHERIFF OF COOK COUNTY and

)

COOK COUNTY, ILLINOIS,

)

)

Defendants.

)

ORDER

The Court, in its discretion, grants Plaintiffs’ motion for the Court to reconsider its October 19, 2017 Order brought pursuant to Federal Rule of Civil Procedure 59(e). [329]. The Court denies Plaintiffs’ motion to stay judgment pending appeal under Federal Rule of Appellate Procedure 8(a) as moot. [330].

BACKGROUND

This motion pertains to the parties’ settlement agreement in this lawsuit that class Plaintiffs originally filed in 2008. As discussed in the Court’s October 2017 ruling, after the Court conducted a fairness hearing on August 30, 2012, the Court approved the parties’ settlement agreement and the Court dismissed this lawsuit with prejudice on August 30, 2013. Pursuant to the settlement agreement, any settlement funds remaining after the distribution to the class members were to be used for the Maternal Objective Management (“MOMS”) program administered by the not-for-profit Haymarket Center. On December 14, 2016, the parties filed an agreed motion to close out the administration of the settlement that the Court granted on January 4, 2017. On that same date, the Court required counsel to prepare and submit a proposed order. Counsel failed to do so at that time.

Instead, on September 21, 2017, Plaintiffs filed a motion to close the administration of the settlement in which Plaintiffs argued that the remaining balance of the settlement funds should be paid to the Haymarket Center pursuant to the settlement agreement. Defendant Sheriff of Cook County then moved for relief from the Court’s final judgment pursuant to Rule 60(b)(6) seeking to prevent payment of the remaining settlement funds to the Haymarket Center because the Sheriff’s Office did not renew its contract with the Haymarket Center in relation to the MOMS program at issue in the settlement agreement. At the September 27, 2017 status hearing, the Court entered the parties’ motions, including the Haymarket Center’s motion to intervene, and directed the parties to file position papers with respect to the Court’s jurisdiction by October 4, 2017. The Sheriff’s Office and Haymarket Center filed jurisdictional memoranda by the deadline asserting that the Court had jurisdiction to modify the final judgment pursuant to Rule

Case: 1:08-cv-06946 Document #: 337 Filed: 04/09/18 Page 2 of 4 PageID #:5994
60(b). On October 19, 2017, the Court, in its discretion, granted Defendant’s Rule 60(b)(6) motion based on the exceptional circumstances in this matter and allowed Defendant to retain the balance of the settlement funds by placing the funds in a special purpose account with Cook County for the limited purpose of providing in-house counseling and treatment to women in the Sheriff’s custody who otherwise would have been served by the MOMS program. In that ruling, the Court denied the Haymarket Center’s Rule 24(a)(2) motion to intervene.
LEGAL STANDARD
Rule 59(e) permits parties to file, within twenty-eight days of the entry of judgment, a motion to alter or amend the judgment. See Fed.R.Civ.P. 59(e). Motions under Rule 59(e) serve the limited function of allowing the Court to correct manifest errors of law or fact or consider newly discovered material evidence. See Baker v. Lindgren, 856 F.3d 498, 507 (7th Cir. 2017). “A ‘manifest error’ occurs when the district court commits a ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015) (citation omitted); see also Stragapede v. City of Evanston, Ill., 865 F.3d 861, 868 (7th Cir. 2017). A “Rule 59 motion is not a forum to relitigate losing arguments” see NLRB v. Latino Exp., Inc., 776 F.3d 469, 478 (7th Cir. 2015) (citation omitted), namely, it is not the proper vehicle to rehash previously rejected arguments. See Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014). District courts have broad discretion in determining Rule 59(e) motions. See Stragapede, 865 F.3d at 868.
ANALYSIS
As discussed, the Court relied on Rule 60(b) to amend the final judgment in its October 2017 ruling. See Kapco Mfg. Co. v. C & O Enter., Inc., 773 F.2d 151, 154 (7th Cir. 1985) (Rule 60(b) is “a method of reopening a closed case” that was “devised to give the district court a power of revisitation it had lacked” by allowing the court to modify judgments). Under the circumstances of this lawsuit, Defendant Sheriff has been more than willing to pay the settlement amounts under the parties’ settlement agreement, and thus issues of non-performance and breach of contract – that are typical in motions to enforce settlements – have never been at issue. Instead, due to budgetary restraints, the Sheriff’s Office no longer uses the Haymarket Center for the benefit of women in the Sheriff’s custody, but rather provides for abuse and treatment services in-house. Despite this change in circumstances, Plaintiffs’ class counsel takes the position that the Haymarket Center should receive the funds although the funds would no longer benefit the women in the Sheriff’s custody.
In the present motion, Plaintiffs argue that the Court made a manifest error of law because the Court did not have jurisdiction to alter or modify the final judgment because the terms of the settlement agreement were not incorporated into the August 2012 Order of Dismissal. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994); see, e.g., Natkin v. Winfrey, No. 1:99-CV-05367, 2015 WL 8484511, at *3 (N.D. Ill. Dec. 8, 2015). For the first time in the present motion, Plaintiffs’ counsel explains that a “dismissal order’s mere reference to the fact of settlement does not incorporate the settlement agreement in the dismissal
2

Case: 1:08-cv-06946 Document #: 337 Filed: 04/09/18 Page 3 of 4 PageID #:5994
order.”1 Miener By & Through Miener v. Missouri Dep’t of Mental Health, 62 F.3d 1126, 1128 (8th Cir. 1995).
Under this precedent, the Court must determine whether its August 2012 dismissal order embodied or incorporated the settlement agreement. See Miener, 62 F.3d at 1128 (“although Kokkonen does not state how a district court may incorporate a settlement agreement in a dismissal order, the case does suggest the agreement must be ‘embod[ied]’ in the dismissal order.”). Not long after the Supreme Court decided Kokkonen, the Seventh Circuit explained that “if the judgment explicitly incorporates the settlement, or reserves authority to enforce the settlement, the court possesses ancillary jurisdiction.” Lucille v. City of Chicago, 31 F.3d 546, 548 (7th Cir. 1994). In Lucille, the Seventh Circuit looked to whether the dismissal order contained the terms of the settlement agreement in ascertaining the district court’s jurisdiction. See id. at 548-49; see also Jones v. Ass’n of Flight Attendants-CWA, 778 F.3d 571, 573 (7th Cir. 2015).
Based on this precedent and turning to the August 30, 2012 Order of Dismissal, the dismissal order did not embody or incorporate the terms of the settlement agreement. The Order states as follows:
IT IS HEREBY ORDERED:
The Court has reviewed the proposed settlement of this class action and, having held a hearing on the fairness of the settlement, with no objection having been filed, finds that notice of the proposed settlement has been provided to all class members by first class mail to her last known address and that the proposed settlement is fair, reasonable, and adequate. Accordingly, IT IS ORDERED that the proposed settlement be, and the same hereby is, approved.
IT IS FURTHER ORDERED:
1. This case is dismissed without prejudice with leave to reinstate on or before August 30, 2013.
2. In the event a motion to reinstate is not filed on or before August 30, 2013, the case shall be deemed dismissed with prejudice without further order of the Court.
3. The Court retains jurisdiction to enforce the terms of the settlement agreement until, and including, August 30, 2013.
1 Despite the timing of Plaintiffs’ argument, the Court must address challenges to its subject matter jurisdiction at any time or stage of the proceedings. See Travelers Prop. Cas. v. Good, 689 F.3d 714, 718 (7th Cir. 2012) (“Jurisdictional objections cannot be forfeited or waived, of course, for this court has an ‘independent obligation to satisfy itself that federal subject matter jurisdiction exists.’”) (citation omitted).
3

Case: 1:08-cv-06946 Document #: 337 Filed: 04/09/18 Page 4 of 4 PageID #:5994

4. Defendant Cook County shall pay to attorneys Kenneth N. Flaxman and Thomas G. Morrissey the sum of $80,000 as reimbursement for expenses and $1,025,000 as compensation for attorneys fees, the fees to be paid in two installments as set out in the settlement agreement.
(R. 305, 8/30/12, Order of Dismissal.)
Although the Court referenced the settlement agreement in the dismissal order, the order did not discuss any specific terms of the settlement, including, for purposes of this motion, ¶ 16 of the settlement agreement entitled “Payout Procedure” that discusses the remaining balance of the settlement funds. Under these circumstances, the Court did not have jurisdiction to modify the judgment.
It remains unclear why class counsel wants the remainder of the settlement funds to go to a facility that does not serve the class members. Indeed, at the September 27, 2017 motion hearing, counsel unequivocally stated “obviously, representing the class members, we would like it to go to programs that would benefit the class exclusively.” (R. 336, 9/27/17 Hr’g Tr. at 9.) That being said, because the Court does not have subject matter jurisdiction over this matter, this question will remain unanswered.

Dated: April 9, 2018

______________________________ AMY J. ST. EVE United States District Court Judge

4

 
 Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 1 of 28
CONSALL,PROTO,RELATED,REOPEN,TERMED,VALDEZ
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:08−cv−06946

Zaborowski et al v. Sheriff of Cook County et al Assigned to: Honorable Amy J. St. Eve Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/04/2008 Date Terminated: 08/30/2012 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Catherine Zaborowski

represented by Thomas Gerard Morrissey Thomas G. Morrissey 10150 South Western Ave. Suite Rear Chicago, IL 60643 (773) 233−7900 Email: tgmorrisseylaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth N Flaxman Kenneth N. Flaxman, P.C. 200 South Michigan Avenue Suite 201 Chicago, IL 60604−6107 (312) 427−3200 Email: knf@kenlaw.com ATTORNEY TO BE NOTICED

Patrick William Morrissey Thomas G. Morrissey, Ltd. 10150 South Western Ave. Suite Rear Chicago, IL 60643 (773) 233−7900 Email: patrickmorrissey1920@gmail.com ATTORNEY TO BE NOTICED

Stacey L. Scanlon U.S. Department of Labor, Office of the Solicitor 230 S. Dearborn St. Room 844 Chicago, IL 60604 312−353−6990 Email: scanlon.stacey.l@dol.gov TERMINATED: 04/28/2011

Plaintiff
Simone Jackson individually and on behalf of a class

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

Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED

Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 2 of 28

Plaintiff Danielle Bryant
Plaintiff Jennifer Farrar
Plaintiff Sheena Richardson
Plaintiff Denae Johnson
Plaintiff Latania Walton
Plaintiff Mariane Cruz
Plaintiff

represented by Thomas Gerard Morrissey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 3 of 28

Deborah Lee
Plaintiff Monique Starnes
Plaintiff Bennetta Sidney
Plaintiff Lisa Brown
Plaintiff Angela Oss
Plaintiff Isabel Carmona
Plaintiff Felicia Ligon

represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 4 of 28

Plaintiff Nicole Blair
Plaintiff Haymarket Center TERMINATED: 10/19/2017

represented by Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
Stacey L. Scanlon (See above for address) TERMINATED: 04/28/2011
represented by John A. Wall Klein, Thorpe & Jenkins, Ltd. 20 North Wacker Drive Suite 1660 Chicago, IL 60606−2903 (312) 984−6400 Email: jawall@ktjnet.com ATTORNEY TO BE NOTICED

V. Defendant Sheriff of Cook County

represented by Anthony E. Zecchin Hale Law LLC 53 West Jackson Blvd. Suite 330 Chicago, IL 60604 (312) 870−6933 Email: azecchin@ahalelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Joseph Rock Rock Fusco & Connelly, LLC 321 North Clark Street Suite 2200 Chicago, IL 60654 (312) 494−1000 Email: jrock@rfclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Gallagher Wise Morrissey Kaveny, LLC 161 N. Clark Street Suite 3200 Chicago, IL 60601 (312) 580−2040 Email: mlg@wmklawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole M. Torrado P.O. Box 11206 Oakland, CA 94611 (773)575−2895 Email: nmtorrado@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald J. Pechous The Khowaja Law Firm LLC

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 5 of 28

Defendant Cook County, Illinois

8 South Michigan Ave., 26th Floor Chicago, IL 60603 (312) 356−3200 Email: dpechous@khowajalaw.com ATTORNEY TO BE NOTICED
Julia Suzanne Bruce Cook County State's Attorney's Office 50 W. Washington Avenue Chicago, IL 60602 (312) 603−5967 Email: julia.bruce@cookcountyil.gov ATTORNEY TO BE NOTICED
Patrick William Chinnery Pepper Law PLC 201 4th Ave. N. Suite 1550 Nashville, TN 37219 615−256−4838 Email: pchinnery@pepperlawplc.com ATTORNEY TO BE NOTICED
Patrick R Moran Rock Fusco Connelly LLC 321 N. Clark St. Suite 2200 Chicago, IL 60654 (312) 494−1000 Email: pmoran@rfclaw.com 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 Email: patrick.smith@cookcountyil.gov TERMINATED: 07/20/2010
Paul Anthony Castiglione Cook County State's Attorney's Office (69W) 69 W. Washington Suite 3110 Chicago, IL 60602 (312) 603−1840 Email: pcastig@cookcountygov.com ATTORNEY TO BE NOTICED
represented by Anthony E. Zecchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald J. Pechous (See above for address)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 6 of 28

Defendant Cora Fletcher
Service List

ATTORNEY TO BE NOTICED
Julia Suzanne Bruce (See above for address) ATTORNEY TO BE NOTICED
Patrick Stephen Smith (See above for address) TERMINATED: 07/20/2010
Paul Anthony Castiglione (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth N Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Richard Bond Cook County State's Attorney's Richard J. Daley Center 50 West Washington Suite 500 Chicago, IL 60602 (312) 603−5153 Email: AARON.BOND@cookcountyil.gov ATTORNEY TO BE NOTICED
Anthony E. Zecchin (See above for address) ATTORNEY TO BE NOTICED
Edgar L. Berre , III Cook County State's Attorney's Office Torts / Civil Rights Litigation Division Richard J. Daley Center 50 West Washington, Suite 500 Chicago, IL 60602 (312) 603−5170 Email: Edgar.Berre@cookcountyil.gov ATTORNEY TO BE NOTICED
Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
Mary Elizabeth McClellan Patton & Ryan LLC 330 N. Wabash Chicago, IL 60611 312−261−5160 Email: mmcclellan@pattonryan.com ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 7 of 28

Date Filed 12/04/2008 12/04/2008 12/04/2008 12/04/2008 12/04/2008 12/05/2008 12/15/2008 12/15/2008 12/15/2008 12/15/2008
01/23/2009 01/28/2009 02/05/2009 02/05/2009 02/11/2009 02/11/2009 02/17/2009
03/10/2009
05/05/2009

# Docket Text
1 COMPLAINT filed by Catherine Zaborowski, Simone Jackson; Jury Demand. Filing fee $350.(hp, ) (Entered: 12/04/2008)
2 CIVIL Cover Sheet (hp, ) (Entered: 12/04/2008)
3 ATTORNEY Appearance for Plaintiffs Catherine Zaborowski, Simone Jackson by Thomas Gerard Morrissey (hp, ) (Entered: 12/04/2008)
4 ATTORNEY Appearance for Plaintiffs Catherine Zaborowski, Simone Jackson by Kenneth N. Flaxman (hp, ) (Entered: 12/04/2008)
6 SUMMONS Issued as to Defendants Sheriff of Cook County, Cook County, Illinois (hp, ) (Entered: 12/04/2008)
7 MINUTE entry before the Honorable Amy J. St. Eve: Joint Status Report due by 1/12/2009. Initial status hearing set for 1/14/2009 at 08:30 AM in courtroom 1241. [For further details see minute order.] Mailed notice (kef, ) (Entered: 12/05/2008)
8 ATTORNEY Appearance for Defendant Cook County, Illinois by Patrick Stephen Smith (Smith, Patrick) (Entered: 12/15/2008)
9 MOTION by Defendant Cook County, Illinois for extension of time to answer or otherwise plead (Smith, Patrick) (Entered: 12/15/2008)
10 NOTICE of Motion by Patrick Stephen Smith for presentment of extension of time 9 before Honorable Amy J. St. Eve on 12/22/2008 at 08:30 AM. (Smith, Patrick) (Entered: 12/15/2008)
11 MINUTE entry before the Honorable Amy J. St. Eve: Defendant's motion for enlargement of time 9 is granted. Defendants to answer or otherwise plead by 2/5/09. Joint status report to be filed by 2/9/09. Initial status hearing set for 1/14/09 is stricken and reset to 2/12/09 at 8:30 a.m. No appearance is required on the 12/22/08 notice date. Mailed notice (kef, ) (Entered: 12/15/2008)
12 MINUTE entry before the Honorable Amy J. St. Eve: Status hearing set for 2/12/09 is stricken and reset to 2/17/2009 at 08:30 AM. Mailed notice (kef, ) Modified on 1/23/2009 (kef, ). (Entered: 01/23/2009)
13 AMENDED complaint by Catherine Zaborowski, Simone Jackson against Sheriff of Cook County, Cook County, Illinois (Flaxman, Kenneth) (Entered: 01/28/2009)
14 ANSWER to amended complaint by Sheriff of Cook County, Cook County, Illinois(Smith, Patrick) (Entered: 02/05/2009)
15 NOTICE by Sheriff of Cook County, Cook County, Illinois re answer to amended complaint 14 (Smith, Patrick) (Entered: 02/05/2009)
16 STATUS Report by Sheriff of Cook County, Cook County, Illinois (Smith, Patrick) (Entered: 02/11/2009)
17 NOTICE by Sheriff of Cook County, Cook County, Illinois re status report 16 (Smith, Patrick) (Entered: 02/11/2009)
18 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 2/17/2009 and continued to 3/10/09 at 8:30 a.m. Defendants' Rule 26(a)(1) disclosures by 2/27/09. Any additional written discovery to be issued by 3/9/09. Fact discovery to be completed by 11/30/09. Expert reports by 1/15/10. Rebuttal expert reports by 2/15/10. Expert discovery to be completed by 3/15/10. Parties are directed to meet and confer pursuant to Rule 26(f) and exhaust all settlement possibilities prior to the next status hearing. Mailed notice (kef, ) (Entered: 02/17/2009)
19 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 3/10/2009 and continued to 5/5/09 at 8:30 a.m. Parties are directed to meet and confer pursuant to Rule 26(f) and exhaust all settlement possibilities prior to the next status hearing.Mailed notice (kef, ) (Entered: 03/10/2009)
20 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 5/5/2009 and continued to 5/27/09 at 8:30 a.m. Parties are directed to meet and confer pursuant

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 8 of 28

05/14/2009 05/14/2009 05/15/2009 05/15/2009 05/27/2009 06/15/2009 06/15/2009 06/22/2009
07/10/2009 07/10/2009 07/13/2009
07/30/2009 07/30/2009 07/30/2009 07/30/2009 08/03/2009
08/06/2009

to Rule 26(f) and exhaust all settlement possibilities prior to the next status hearing.Mailed notice (kef, ) (Entered: 05/05/2009)
21 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for protective order (Smith, Patrick) (Entered: 05/14/2009)
22 NOTICE of Motion by Patrick Stephen Smith for presentment of motion for protective order 21 before Honorable Amy J. St. Eve on 5/21/2009 at 08:30 AM. (Smith, Patrick) (Entered: 05/14/2009)
23 MINUTE entry before the Honorable Amy J. St. Eve: Defendants' motion for protective order 21 is granted. No appearance is required on the 5/21/09 notice date. Mailed notice (kef, ) (Entered: 05/15/2009)
24 AGREED PROTECTIVE Order Signed by the Honorable Amy J. St. Eve on 5/15/2009:Mailed notice(kef, ) (Entered: 05/15/2009)
25 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 5/27/2009 and continued to 7/8/2009 at 08:30 AM. Mailed notice (kef, ) (Entered: 05/27/2009)
26 MOTION by Plaintiffs Catherine Zaborowski, Simone Jackson to certify class (Flaxman, Kenneth) (Entered: 06/15/2009)
27 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to certify class 26 before Honorable Amy J. St. Eve on 6/22/2009 at 08:30 AM. (Flaxman, Kenneth) (Entered: 06/15/2009)
28 MINUTE entry before the Honorable Amy J. St. Eve:Motion hearing held on 6/22/2009. Plaintiffs' motion for class certification 26 is entered. Response by 7/13/09. Reply by 7/27/09. Status hearing set for 7/8/09 is stricken and reset to 8/11/09 at 8:30 a.m. Mailed notice (kef, ) (Entered: 06/22/2009)
29 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for extension of time to file response/reply to Plaintiffs' Motion to Certify Class (Weidhuner, Ronald) (Entered: 07/10/2009)
30 NOTICE of Motion by Ronald Weidhuner for presentment of motion for extension of time to file response/reply 29 before Honorable Amy J. St. Eve on 7/16/2009 at 08:30 AM. (Weidhuner, Ronald) (Entered: 07/10/2009)
31 MINUTE entry before the Honorable Amy J. St. Eve: Defendants' motion for enlargement of time 29 is granted. Defendants' response to plaintiffs' motion to certify class 26 to be filed on or before 7/30/09. Reply by 8/13/09. No appearance is required on the 7/16/09 notice date. Mailed notice (kef, ) (Entered: 07/13/2009)
32 ATTORNEY Appearance for Defendants Sheriff of Cook County, Cook County, Illinois by Paul Anthony Castiglione (Castiglione, Paul) (Entered: 07/30/2009)
33 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for extension of time to file response/reply to Motion for Class Certification (Castiglione, Paul) (Entered: 07/30/2009)
34 NOTICE of Motion by Paul Anthony Castiglione for presentment of motion for extension of time to file response/reply 33 before Honorable Amy J. St. Eve on 8/6/2009 at 08:30 AM. (Castiglione, Paul) (Entered: 07/30/2009)
35 ATTORNEY Appearance for Defendants Sheriff of Cook County, Cook County, Illinois by Donald J. Pechous (Pechous, Donald) (Entered: 07/30/2009)
36 MINUTE entry before the Honorable Amy J. St. Eve: Defendants' motion for enlargement of time 33 is granted. Defendants' response to plaintiffs' motion for class certification 26 to be filed on or before 8/31/09. Reply by 9/14/09. No appearance is required on the 8/6/09 notice date. Mailed notice (kef, ) (Entered: 08/03/2009)
37 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois to reassign case No. 09 C 1546, Case No. 09 C 3470 and Case No. 09 C 3546 Pursuant to Local Rule 40.4 (Attachments: # 1 Exhibit Exhibit A, B, C)(Smith, Patrick) (Entered: 08/06/2009)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 9 of 28

08/06/2009 08/06/2009
08/10/2009 08/11/2009 08/17/2009 08/17/2009 08/31/2009 08/31/2009 09/14/2009 09/15/2009 09/24/2009
09/25/2009
10/01/2009
10/22/2009 11/05/2009 11/05/2009 11/10/2009

38 NOTICE of Motion by Patrick Stephen Smith for presentment of motion to reassign case 37 before Honorable Amy J. St. Eve on 8/13/2009 at 08:30 AM. (Smith, Patrick) (Entered: 08/06/2009)
39 RESPONSE by Catherine Zaborowski, Simone Jacksonin Opposition to MOTION by Defendants Sheriff of Cook County, Cook County, Illinois to reassign case No. 09 C 1546, Case No. 09 C 3470 and Case No. 09 C 3546 Pursuant to Local Rule 40.4 37 (Flaxman, Kenneth) (Entered: 08/06/2009)
40 MINUTE entry before the Honorable Amy J. St. Eve: Defendants' reply brief in support of their motion for reassignment is due on or before 8/17/09. No appearance is required on the 8/13/09 notice date. Mailed notice (kef, ) (Entered: 08/10/2009)
41 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 8/11/2009 and continued to 9/24/2009 at 08:30 AM. Mailed notice (kef, ) (Entered: 08/11/2009)
42 REPLY by Sheriff of Cook County, Cook County, Illinois to response in opposition to motion, 39 to Reassign (Smith, Patrick) (Entered: 08/17/2009)
43 NOTICE by Sheriff of Cook County, Cook County, Illinois re reply to response to motion 42 to Reassign (Smith, Patrick) (Entered: 08/17/2009)
44 RESPONSE by Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Catherine Zaborowski, Simone Jackson to certify class 26 (Smith, Patrick) (Entered: 08/31/2009)
45 NOTICE by Sheriff of Cook County re response in opposition to motion 44 (Smith, Patrick) (Entered: 08/31/2009)
46 RESPONSE by Catherine Zaborowski, Simone Jacksonin Support of MOTION by Plaintiffs Catherine Zaborowski, Simone Jackson to certify class 26 (Flaxman, Kenneth) (Entered: 09/14/2009)
47 MINUTE entry before the Honorable Amy J. St. Eve: The Court denies Defendants' motion to reassign and consolidate 37 . [For further details see minute order.] Mailed notice (kef, ) (Entered: 09/15/2009)
48 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 9/24/2009 and continued to 11/5/2009 at 08:30 AM. Parties are directed to meet and confer pursuant to Rule 26(f) and exhaust all settlement possibilities prior to the next status hearing. Mailed notice (kef, ) (Entered: 09/24/2009)
49 MINUTE entry before the Honorable Amy J. St. Eve: Status hearing set for 10/1/2009 at 08:30 AM to address questions concerning Plaintiffs' request to maintain the class action solely to adjudicate the legality of the Sheriff's policy under Rule 23(c)(4) with the individual damages claims done separately.Mailed notice (kef, ) (Entered: 09/25/2009)
50 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 10/1/2009. Plaintiffs' supplemental brief regarding individuals' damages issue to be filed by 10/22/09. Defendants' response by 11/5/09. Reply by 11/12/09. Status hearing set for 11/5/09 is stricken and reset to 11/17/09 at 8:30 a.m. Mailed notice (kef, ) (Entered: 10/01/2009)
51 SUPPLEMENTAL MEMORANDUM by Catherine Zaborowski, Simone Jackson in support of motion for class certification 26 (Flaxman, Kenneth) (Text modified on 10/23/2009 (vmj, ). (Entered: 10/22/2009)
52 RESPONSE by Defendants Sheriff of Cook County, Cook County, Illinois to Plaintiff's Supplemental Memorandum clarifying Questions by the Court (Smith, Patrick) (Entered: 11/05/2009)
53 NOTICE by Sheriff of Cook County, Cook County, Illinois re Response 52 (Smith, Patrick) (Entered: 11/05/2009)
54 REPLY by Catherine Zaborowski, Simone Jackson Supplemental Memorandum in Support of Motion by Plaintiffs Catherine Zaborowski, Simone Jackson for class certification 26 51 52 (Flaxman, Kenneth) (Text Modified by Clerk's Office on 11/12/2009) (hp, ). (Entered: 11/10/2009)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 10 of 28

11/10/2009 11/17/2009 12/03/2009 12/09/2009 12/09/2009 12/17/2009 01/21/2010 03/04/2010 03/04/2010 03/09/2010
03/23/2010
03/24/2010 03/24/2010 03/29/2010

55 REPLY by Catherine Zaborowski, Simone Jackson to reply to response to motion 54 [CORRECTED WITH INCLUSION OF EXHIBIT 1] (Flaxman, Kenneth) (Entered: 11/10/2009)
56 MINUTE entry before the Honorable Amy J. St. Eve: Status hearing set for 11/17/09 is stricken and reset to 12/4/2009 at 08:30 AM. Mailed notice (kef, ) (Entered: 11/17/2009)
57 MINUTE entry before the Honorable Amy J. St. Eve: Status hearing set for 12/4/09 is stricken and reset to 12/11/2009 at 08:30 AM. Mailed notice (kef, ) (Entered: 12/03/2009)
58 MINUTE entry before the Honorable Amy J. St. Eve: The Court, in its discretion, denies Plaintiffs' Motion for Class Certification 26 pursuant to Federal Rule of Civil Procedure 23. [For further details see minute order.] Mailed notice (kef, ) Modified on 12/9/2009 (kef, ). (Entered: 12/09/2009)
59 MINUTE entry before the Honorable Amy J. St. Eve: Status hearing set for 12/11/09 is stricken and reset to 12/17/2009 at 08:30 AM. Mailed notice (kef, ) (Entered: 12/09/2009)
60 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 12/17/2009 and continued to 1/21/2010 at 08:30 AM. Mailed notice (kef, ) (Entered: 12/17/2009)
61 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 1/21/2010 and continued to 3/4/2010 at 08:30 AM. This case is hereby stayed until a ruling from the Seventh Circuit is issued or until further order of the court. Mailed notice (kef, ) (Entered: 01/21/2010)
62 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 3/4/2010 and continued to 5/6/2010 at 08:30 AM. Plaintiffs' expert report by 4/19/10. Defendants' expert report by 5/19/10. Expert discovery to be completed by 6/18/10. Mailed notice (kef, ) (Entered: 03/04/2010)
63 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Maria Valdez for the purpose of holding proceedings related to: settlement conference.(kef, )Mailed notice. (Entered: 03/04/2010)
64 MINUTE entry before Honorable Maria Valdez: This case has been referred to Judge Valdez to conduct a settlement conference. Judge Valdez requires full compliance with the Court's Standing Order of Settlement Conference found on the Judge's website available at www.ilnd.uscourts.gov. The parties shall jointly contact the courtroom deputy, Yolanda Pagan, at 312/408−5135 with mutually agreeable dates or appear at 9:30 a.m. on 3/31/10 to set a settlement conference date. Because of the volume of settlement conferences conducted by Judge Valdez, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship.Mailed notice (yp, ) (Entered: 03/09/2010)
65 US Court of Appeals for the 7th Circuit Order, USCA # 09−8049: The following are before the court: 1. Petition for permission to appeal, filed on 12/14/2009, by counsel for the petitioner. 2. Response of defendants−respondents to plaintiffs−petitioners' Rule 23(f) petition for leave to appeal, filed on 1/29/2010, by the counsel for the respondents. 3. Plaintiffs' supplemental memorandum in support of motion for class certification, filed on 2/9/2010, by counsel for the petitioners. It is ordered that #1 is denied. (vmj, ) (Entered: 03/24/2010)
66 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to certify class [amended motion] (Flaxman, Kenneth) (Entered: 03/24/2010)
67 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to certify class 66 before Honorable Amy J. St. Eve on 4/5/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 03/24/2010)
68 MINUTE entry before Honorable Maria Valdez: Status hearing set for 3/31/10 before Judge Valdez is hereby stricken. Parties were given dates by phone to convey with their clients and shall jointly contact Yolanda Pagan at 312/408−5135 by no later than 3/30/10 to confirm the availability for settlement conference setting. Mailed notice (yp, ) (Entered: 03/29/2010)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 11 of 28

03/29/2010
04/05/2010 04/07/2010
04/21/2010 04/21/2010 04/22/2010
05/10/2010 05/11/2010 05/11/2010 05/18/2010 05/18/2010 05/28/2010

69 MINUTE entry before Honorable Maria Valdez: Case is set to 5/11/10 at 2:00 p.m. in courtroom 1300 for settlement conference. Judge Valdez requires full compliance with the Court's Standing Order of Settlement Conference found on the Judge's website available at www.ilnd.uscourts.gov, or the parties can contact courtroom deputy, Yolanda Pagan, at 312/408−5135 for a copy. Failure to comply with the provisions of the Court's Standing Order may result in the unilateral cancellation of the settlement conference by the Court. Because of the volume of settlement conferences conducted by Judge Valdez, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship.Mailed notice (yp, ) (Entered: 03/29/2010)
70 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 4/5/2010. Plaintiffs' amended motion for class certification 66 is entered. Plaintiffs' expert disclosure by 5/3/10. Defendants' expert disclosure by 6/2/10. Expert discovery to be completed by 7/2/10. Mailed notice (kef, ) (Entered: 04/05/2010)
71 MINUTE entry before Honorable Amy J. St. Eve: On 12/9/09, the Court denied Plaintiffs' first motion for class certification in which Plaintiffs sought to certify a class solely for liability issues leaving the damages actions for separate, subsequent proceedings. After the Seventh Circuit rejected Plaintiffs' Rule 23(f) petition for leave to appeal, Plaintiffs filed a second motion for class certification without filing a supporting legal memorandum 66 . Specifically, Plaintiffs' counsel maintains that after consulting a variety of experts, they have concluded that "they were mistaken in their view that each class member should receive a separate determination of damages." Whatever their reason, Plaintiffs must file a thorough, detailed legal memorandum supporting their new class definition that is due on or before 4/26/10. Defendants' response brief is due on or before 5/17/10. Plaintiffs' reply is due on or before 5/24/10. Status hearing set for 5/6/10 is stricken and reset to 5/27/10 at 8:30 a.m. Mailed notice (kef, ) (Entered: 04/07/2010)
72 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for extension of time for filing of supplemental memoranda (Flaxman, Kenneth) (Entered: 04/21/2010)
73 NOTICE of Motion by Kenneth N Flaxman for presentment of extension of time 72 before Honorable Amy J. St. Eve on 4/27/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 04/21/2010)
74 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion for class certification 66 is denied without prejudice. Plaintiffs' motion for extension of time 72 is granted. Plaintiffs to file their entire motion for class certification with supporting memorandum on 5/10/10. Response by 6/1/10. Reply by 6/8/10. Status hearing set for 5/27/10 is stricken and reset to 6/17/10 at 8:30 a.m. No appearance is required on the 4/27/10 notice date. Mailed notice (kef, ) (Entered: 04/22/2010)
75 MEMORANDUM in support of amended motion for class certification 76 by plaintiffs (Flaxman, Kenneth) Modified on 5/11/2010 (vmj, ). (Entered: 05/10/2010)
76 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to certify class [amended] (Flaxman, Kenneth) (Entered: 05/11/2010)
77 MINUTE entry before Honorable Maria Valdez:Settlement conference held on 5/11/2010. Plaintiffs did not attend although plaintiffs' counsel was present. No settlement reached at this time. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Honorable Maria Valdez no longer referred to the case.Mailed notice (yp, ) (Entered: 05/11/2010)
78 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for sanctions (Smith, Patrick) (Entered: 05/18/2010)
79 NOTICE of Motion by Patrick Stephen Smith for presentment of motion for attorney's fees 78 before Honorable Maria Valdez on 5/27/2010 at 9:45 AM. (Smith, Patrick) Modified on 5/19/2010 (vmj, ). (Entered: 05/18/2010)
80 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to certify class [amended] 76 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Smith, Patrick) (Entered: 05/28/2010)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 12 of 28

05/28/2010 06/01/2010 06/03/2010 06/03/2010 06/07/2010
06/07/2010 06/07/2010 06/08/2010 06/09/2010
06/11/2010 06/11/2010 06/17/2010
06/17/2010 06/17/2010 06/17/2010 06/18/2010 06/22/2010

81 NOTICE by Cook County, Illinois, Sheriff of Cook County re response in opposition to motion 80 Notice of Filing (Smith, Patrick) (Entered: 05/28/2010)
84 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Maria Valdez pursuant to Local Rule 72.1signed by Executive Committee on 6/1/2010.(vmj, ) (Entered: 06/03/2010)
82 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for attorneys fees (Smith, Patrick) Modified on 6/4/2010 (vmj, ). (Entered: 06/03/2010)
83 NOTICE of Motion by Patrick Stephen Smith for presentment of motion for attorneys fees 82 before Honorable Maria Valdez on 6/9/2010 at 09:45 AM. (Smith, Patrick) Modified on 6/4/2010 (vmj, ). (Entered: 06/03/2010)
85 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion for attorneys' fees 78 is denied as moot in light of the refiling of the same motion at doc. 82. The referral should remain open for the motion at doc. 82. Mailed notice (kef, ) (Entered: 06/07/2010)
86 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to disqualify counsel Patrick S. Smith (Flaxman, Kenneth) (Entered: 06/07/2010)
87 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to disqualify counsel 86 before Honorable Amy J. St. Eve on 6/17/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 06/07/2010)
88 REPLY memorandum by plaintiffs' in Support of Amended Motion for class certification 76 (Flaxman, Kenneth) Modified on 6/9/2010 (vmj, ). (Entered: 06/08/2010)
89 MINUTE entry before Honorable Maria Valdez:Motion hearing held on 6/9/2010 regarding MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for attorneys fees 82 . The Court enters the following briefing schedule: Response by 7/7/2010. Replies due by 7/14/2010. Report and recommendation to be issue by mail. Mailed notice (yp, ) (Entered: 06/09/2010)
90 MEMORANDUM IN OPPOSITION to plaintiffs' motion to disqualify Attorney Patrick S. Smith 86 by defendants'. (Smith, Patrick) (Text Modified on 6/15/2010 (vmj, ). (Entered: 06/11/2010)
91 NOTICE of filing by defendants' re MEMORANDUM IN OPPOSITION to motion 90 . (Smith, Patrick) Modified on 6/15/2010 (vmj, ). (Entered: 06/11/2010)
92 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 6/17/2010 and continued to 8/19/2010 at 08:30 AM. Plaintiffs' motion to disqualify counsel 86 is entered. Ruling by mail. Plaintiffs' expert report by 7/12/10. Defendants' expert report by 8/27/10. All expert discovery to be completed by 9/24/10. Mailed notice (kef, ) (Entered: 06/17/2010)
93 MINUTE entry before Honorable Amy J. St. Eve: The Court denies Plaintiffs' motion to disqualify counsel 86 . [For further details see minute order.] Mailed notice (kef, ) (Entered: 06/17/2010)
94 MOTION by Plaintiffs to reconsider order of 6/17/2010 93 (Flaxman, Kenneth) Modified on 6/18/2010 (vmj, ). (Entered: 06/17/2010)
95 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to reconsider 94 before Honorable Amy J. St. Eve on 7/1/2010 at 08:30 AM. (Flaxman, Kenneth) Modified on 6/18/2010 (vmj, ). (Entered: 06/17/2010)
96 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion to reconsider 94 is denied. No appearance is required on the 7/1/10 notice date. Mailed notice (kef, ) (Entered: 06/18/2010)
97 MINUTE entry before Honorable Amy J. St. Eve: The Court grants Plaintiffs' Second Motion for Class Certification 76 . The Court will not entertain any motions for reconsideration as to this order because the parties have had ample opportunity to make their arguments. [For further details see minute order.] Mailed notice (kef, ) (Entered: 06/22/2010)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 13 of 28

07/07/2010 07/08/2010 07/08/2010 07/11/2010 07/11/2010 07/12/2010
07/16/2010
07/18/2010 07/18/2010 07/20/2010 07/20/2010 07/23/2010 07/23/2010 07/26/2010
07/28/2010 08/20/2010 08/25/2010 08/25/2010

98 MEMORANDUM by plaintiffs in Opposition to motion for attorney fees 82 (Flaxman, Kenneth) Modified on 7/8/2010 (vmj, ). (Entered: 07/07/2010)
99 REPLY by defendants' to plaintiff's motion in opposition to motion for attorney fees 82 (Smith, Patrick) Modified on 8/12/2010 (vmj, ). (Entered: 07/08/2010)
100 NOTICE by defendants re 99 (Smith, Patrick) Modified on 8/12/2010 (vmj, ). (Entered: 07/08/2010)
101 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for extension of time for expert disclosures [AGREED] (Flaxman, Kenneth) (Entered: 07/11/2010)
102 NOTICE of Motion by Kenneth N Flaxman for presentment of extension of time 101 before Honorable Amy J. St. Eve on 7/15/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 07/11/2010)
103 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' agreed motion to extend time for expert disclosures 101 is granted. Plaintiffs to serve their expert report(s) by 7/19/10. Defendants to serve their expert report(s) by 9/3/10. All expert discovery to be completed by 10/1/10. Status hearing remains set for 8/19/10 at 8:30 a.m. No appearance is required on the 7/15/10 notice date. Mailed notice (kef, ) (Entered: 07/12/2010)
106 CERTIFIED copy of Order from U.S. Court of Appeals, 7th Circuit, Appeal No. 10−8023: Upon consideration of the defendants' petition for permission to appeal pursuant to FRCP 23(f), filed on 7/6/2010, it is ordered that the petition is denied. (Entered: 07/19/2010)
104 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to reassign case (s) (Flaxman, Kenneth) (Entered: 07/18/2010)
105 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to reassign case 104 before Honorable Amy J. St. Eve on 7/26/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 07/18/2010)
107 ATTORNEY Appearance for Defendants Cook County, Illinois, Sheriff of Cook County by Michael L. Gallagher (Gallagher, Michael) (Entered: 07/20/2010)
108 WITHDRAWING Patrick S. Smith as counsel for Defendants Cook County, Illinois, Sheriff of Cook County and substituting Michael L. Gallagher as counsel of record (Gallagher, Michael) (Entered: 07/20/2010)
109 RESPONSE by defendants in Opposition to plaintiffs' motion to reassign Bryant v. Sheriff 104 (Attachments: # 1 Exhibit 1)(Smith, Patrick) Modified on 7/26/2010 (vmj, ). (Entered: 07/23/2010)
110 NOTICE by Cook County, Illinois, Sheriff of Cook County re response in opposition to motion, 109 Notice of Filing (Smith, Patrick) (Entered: 07/23/2010)
111 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 7/26/2010. Plaintiffs' motion to reassign 104 is entered. Defendants' oral motion to withdraw response 109 is granted. Defendants to turn over class information to plaintiffs by 8/16/10. Agreed proposed notice to the class to be filed by 8/23/10. Status hearing set for 8/19/10 is stricken and reset to 8/31/10 at 8:30 a.m. Mailed notice (kef, ) (Entered: 07/26/2010)
112 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion to reassign 104 is granted. Reassignment orders to follow. Mailed notice (kef, ) (Entered: 07/28/2010)
113 NOTICE by Danielle Bryant, Simone Jackson, Monique Starnes, Catherine Zaborowski of filing of agreed proposed form of class notice (Flaxman, Kenneth) (Entered: 08/20/2010)
114 MOTION by Plaintiff Catherine Zaborowski to produce, MOTION by Plaintiff Catherine Zaborowski for protective order Agreed Motion for Protective Order (Morrissey, Thomas) (Entered: 08/25/2010)
115 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to produce, motion for protective order 114 before Honorable Amy J. St. Eve on 8/31/2010 at 08:30 AM. (Morrissey, Thomas) (Entered: 08/25/2010)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 14 of 28

08/25/2010 08/26/2010 08/26/2010 08/26/2010 08/26/2010 08/27/2010 08/30/2010 08/30/2010 08/31/2010 08/31/2010 08/31/2010
08/31/2010 08/31/2010
09/08/2010

116 MOTION by Plaintiff Catherine Zaborowski for protective order Corrected Agreed Motion for Protective Order (Attachments: # 1 Exhibit)(Morrissey, Thomas) (Entered: 08/25/2010)
117 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' agreed motion for protective order 116 is granted. Agreed protective order to follow. Counsel should submit the proposed order to Judge St. Eve's proposed order inbox. Plaintiffs' motion for protective order 114 is denied as moot. Mailed notice (kef, ) (Entered: 08/26/2010)
118 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for extension of time to serve expert reports [AGREED] (Gallagher, Michael) (Entered: 08/26/2010)
119 NOTICE of Motion by Michael L. Gallagher for presentment of extension of time 118 before Honorable Amy J. St. Eve on 8/31/2010 at 08:30 AM. (Gallagher, Michael) (Entered: 08/26/2010)
120 AGREED PROTECTIVE Order Signed by the Honorable Amy J. St. Eve on 8/26/2010:Mailed notice(kef, ) (Entered: 08/27/2010)
121 MINUTE entry before Honorable Amy J. St. Eve: Defendants' agreed motion to extend time for expert disclosures 118 is granted. Defendants have until 9/13/10 in which to serve their expert reports. All expert discovery to be completed by 10/14/10. Mailed notice (kef, ) (Entered: 08/27/2010)
122 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to amend/correct protective order 120 (Flaxman, Kenneth) (Entered: 08/30/2010)
123 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to amend/correct, motion for relief 122 before Honorable Amy J. St. Eve on 9/7/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 08/30/2010)
124 NOTICE by Simone Jackson, Catherine Zaborowski of filing of amended form of class notice and optout form (Flaxman, Kenneth) (Entered: 08/31/2010)
125 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Maria Valdez for the purpose of holding proceedings related to: settlement conference.(kef, )Mailed notice. (Entered: 08/31/2010)
126 MINUTE entry before Honorable Amy J. St. Eve: Status hearing held on 8/31/2010 and continued to 9/14/2010 at 08:30 AM. Plaintiffs' motion to amend protective order 122 is granted. Defendants to provide a revised list of potential class members to plaintiffs' counsel by 9/14/10. Notice should be sent out by 9/21/10. Deadline for opt−outs is 11/12/10. All expert discovery to be completed by 11/1/10. Mailed notice (kef, ) (Entered: 08/31/2010)
127 AMENDED AGREED PROTECTIVE Order Signed by the Honorable Amy J. St. Eve on 8/31/2010:Mailed notice(kef, ) (Entered: 08/31/2010)
128 MINUTE entry before Honorable Maria Valdez: This case has been referred to Judge Valdez to conduct a settlement conference. Judge Valdez requires full compliance with the Court's Standing Order of Settlement Conference found on the Judge's website available at www.ilnd.uscourts.gov. The parties shall jointly contact the courtroom deputy, Yolanda Pagan, at 312/408−5135 with mutually agreeable dates or appear at 9:30 a.m. on 9/21/10 to set a settlement conference date. Because of the volume of settlement conferences conducted by Judge Valdez, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship.Mailed notice (yp, ) (Entered: 08/31/2010)
129 MINUTE entry before Honorable Maria Valdez: Status hearing set for 9/21/10 is stricken. Settlement Conference set for 11/16/2010 at 02:00 p.m. in Courtroom 1300. Judge Valdez requires full compliance with the Court's Standing Order of Settlement Conference found on the Judge's website available at www.ilnd.uscourts.gov, or the parties can contact courtroom deputy, Yolanda Pagan, at 312/408−5135 for a copy. Failure to comply with the provisions of the Court's Standing Order may result in the unilateral cancellation of the settlement conference by the Court. Because of the volume of settlement conferences conducted by Judge Valdez, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship.Mailed notice (yp, ) (Entered: 09/08/2010)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 15 of 28

09/14/2010 09/21/2010 09/29/2010
09/29/2010 10/04/2010
10/07/2010 10/07/2010 10/07/2010 10/08/2010 10/12/2010 10/12/2010 10/12/2010

130 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 9/14/2010 and continued to 11/3/2010 at 08:30 AM. Plaintiffs' amended consolidated class action complaint to be filed by 9/21/10. Defendants to answer or otherwise plead by 10/12/10. Notice to the class should be mailed on or before 9/21/10. Mailed notice (kef, ) (Entered: 09/14/2010)
131 SECOND AMENDED complaint by Danielle Bryant, Catherine Zaborowski, Cora Fletcher, Simone Jackson, Monique Starnes, Jennifer Farrar, Sheena Richardson, Denae Johnson, Latania Walton, Mariane Cruz, Deborah Lee, Bennetta Sidney, Lisa Brown, Angela Oss, Isabel Carmona, Felicia Ligon against Cook County, Illinois, Sheriff of Cook County (Flaxman, Kenneth) (Entered: 09/21/2010)
132 MINUTE entry before Honorable Maria Valdez: Report and Recommendation on Defendants' motion for attorney's fees 82 is hereby submitted to Judge St. Eve. It is recommended that Defendants' Motion for Attorney's Fees 82 be granted and that sanctions be awarded to Defendants in the amount of $740.00. Counsel has fourteen days from the date of service of this Court's Report and Recommendation to file objections with the District Court. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Failure to object constitutes a waiver of the right to appeal. Lorentzen v. Anderson Pest Control, 64 F.3d 327 (7th Cir. 1995). (For further details see separate order.)Mailed notice (yp, ) (Entered: 09/29/2010)
133 REPORT AND RECOMMENDATIONS signed by the Honorable Maria Valdez on 9/29/2010. Mailed notice(yp, ) (Entered: 09/29/2010)
134 MINUTE entry before Honorable Rebecca R. Pallmeyer: Wendy Tarzian communicated with this court via e−mail to the court's emergency message box. The message was forwarded to the Acting Emergency Judge. As best the court can determine, Ms. Tarzian received notice of a class action pending before District Judge Amy St. Eve. Judge St. Eve certified a class of women who were in the custody of the Sheriff of Cook County on or after December 4, 2006 and have been or will be shackled during labor or delivery, or post−delivery recovery. In her message to the court, Ms. Tarzian (who evidently has been in the Sheriff's custody during the relevant time period) has never been pregnant or delivered a baby. The court assures Ms. Tarzian that if she has not and will not give birth in the Sheriffs custody, she is not a member of the class and need not take any action at this time. Counsel in this action are invited to communicate with Ms. Tarzian as appropriate. Mailed notice (etv, ) (Entered: 10/04/2010)
135 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County to stay expert discovery AGREED (Gallagher, Michael) (Entered: 10/07/2010)
136 AGREED NOTICE of Motion by Michael L. Gallagher for presentment of motion to stay 135 before Honorable Amy J. St. Eve on 10/13/2010 at 08:30 AM. (Gallagher, Michael) (Entered: 10/07/2010)
137 OBJECTIONS by plaintiffs to Proposed Findings and Recommendations 82 133 (Flaxman, Kenneth) {Text Modified by clerk's office on 10/13/2010 (vmj, ). (Entered: 10/07/2010)
138 MINUTE entry before Honorable Amy J. St. Eve: Defendants' agreed motion to stay expert discovery pending the parties' scheduled settlement conference 135 is granted. Expert discovery is hereby stayed. Status hearing set for 11/3/10 is stricken and reset to 11/22/10 at 8:30 a.m. No appearance is required on the 10/13/10 notice date. Mailed notice (kef, ) (Entered: 10/08/2010)
139 WRITTEN Opinion Signed by the Honorable Amy J. St. Eve on 10/12/2010: The Court adopts Judge Valdez's Report and Recommendation 133 granting Defendants' motion for sanctions 82 . Plaintiffs must pay Defendants $740.00 in attorney's fees by no later than 11/9/10. [For further details see minute order.] Mailed notice(kef, ) (Entered: 10/12/2010)
140 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois to dismiss Plaintiffs' Second Amended Complaint against Sheriff Dart in his individual capacity. (Gallagher, Michael) (Entered: 10/12/2010)
141 NOTICE of Motion by Michael L. Gallagher for presentment of motion to dismiss 140 before Honorable Amy J. St. Eve on 10/14/2010 at 08:30 AM. (Gallagher, Michael)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 16 of 28

10/14/2010 10/28/2010 11/16/2010 11/22/2010
12/07/2010 12/07/2010
12/09/2010 12/09/2010 12/10/2010 12/13/2010 12/13/2010 12/13/2010 12/14/2010 12/14/2010 12/21/2010

(Entered: 10/12/2010)
142 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 10/14/2010. Defendant Dart's motion to dismiss plaintiffs' second amended complaint 140 is entered. Response by 11/23/10. Reply by 12/7/10. Mailed notice (kef, ) (Entered: 10/14/2010)
143 Full SATISFACTION of Judgment regarding order on motion for sanctions,, order on report and recommendation,, written opinion, 139 in the amount of $740.00 (Gallagher, Michael) (Entered: 10/28/2010)
144 MINUTE entry before Honorable Maria Valdez:Settlement conference held on 11/16/2010. Parties unable to reach settlement at this time. Referral for settlement conference shall remain open until further order of the Court. Mailed notice (yp, ) (Entered: 11/17/2010)
145 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 11/22/2010 and continued to 1/20/11 at 8:30 a.m. Plaintiffs' response to defendant Dart's motion to dismiss 140 to be filed on or before 12/7/10. Reply by 12/14/10. Joint trial plan to be filed by 1/12/11. All expert discovery to be completed by 2/1/11. Class members claims by 5/1/11. Mailed notice (kef, ) (Entered: 11/22/2010)
146 ATTORNEY Appearance for Defendants Cook County, Illinois, Sheriff of Cook County by Julia Suzanne Bruce (Bruce, Julia) (Entered: 12/07/2010)
147 MEMORANDUM by Nicole Blair, Lisa Brown, Danielle Bryant, Isabel Carmona, Mariane Cruz, Jennifer Farrar, Cora Fletcher, Denae Johnson, Deborah Lee, Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, Latania Walton in Opposition to motion to dismiss 140 (Flaxman, Kenneth) (Entered: 12/07/2010)
148 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for extension of time to file response/reply as to motion to dismiss 140 AGREED (Gallagher, Michael) (Entered: 12/09/2010)
149 AGREED NOTICE of Motion by Michael L. Gallagher for presentment of motion for extension of time to file response/reply, motion for relief 148 before Honorable Amy J. St. Eve on 12/14/2010 at 08:30 AM. (Gallagher, Michael) (Entered: 12/09/2010)
150 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion for extension of time 148 is granted. Defendants' reply to their motion to dismiss 140 to be filed on or before 12/21/10. No appearance is required on the 12/14/10 notice date. Mailed notice (kef, ) (Entered: 12/10/2010)
151 MOTION by Plaintiff Catherine Zaborowski for leave to file supplement to memorandum in opposition to motion to dismiss (Flaxman, Kenneth) (Entered: 12/13/2010)
152 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for leave to file 151 before Honorable Amy J. St. Eve on 12/16/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 12/13/2010)
153 [AMENDED] NOTICE of Motion by Kenneth N Flaxman for presentment of motion for leave to file 151 before Honorable Amy J. St. Eve on 12/16/2010 at 08:30 AM. (Flaxman, Kenneth) (Entered: 12/13/2010)
154 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion for leave to file supplement 151 is granted. Counsel should separately file the supplement upon receipt of this order. No appearance is required on the 12/16/10 notice date. Mailed notice (kef, ) (Entered: 12/14/2010)
155 SUPPLEMENT by Catherine Zaborowski to memorandum in opposition to motion to dismiss 140 (Flaxman, Kenneth) Text Modified to read according to document on 12/20/2010 (vmj, ). (Entered: 12/14/2010)
156 REPLY by Defendant Sheriff of Cook County to memorandum in opposition to motion, 147 (Bruce, Julia) (Entered: 12/21/2010)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 17 of 28

12/29/2010 12/30/2010 12/30/2010 01/06/2011
01/11/2011 01/11/2011 01/12/2011
01/18/2011 01/18/2011 01/19/2011
01/20/2011 01/25/2011 01/25/2011 01/26/2011 01/27/2011
01/31/2011

157 WRITTEN Opinion Signed by the Honorable Amy J. St. Eve on 12/29/2010: The Court denies Defendant Dart's motion to dismiss 140 . [For further details see minute order.] Mailed notice(kef, ) (Entered: 12/29/2010)
158 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to compel (Flaxman, Kenneth) (Entered: 12/30/2010)
159 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to compel 158 before Honorable Amy J. St. Eve on 1/6/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 12/30/2010)
160 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 1/6/2011. Plaintiffs' motion to compel 158 is entered. Response by 1/17/11. Status hearing set for 1/20/11 is stricken and reset to 1/27/11 at 8:30 a.m. Mailed notice (kef, ) (Entered: 01/06/2011)
161 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to reset date for filing of joint trial plan and date for completion of expert discovery (Flaxman, Kenneth) (Entered: 01/11/2011)
162 [AGREED] NOTICE of Motion by Kenneth N Flaxman for presentment of motion to reset 161 before Honorable Amy J. St. Eve on 1/19/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 01/11/2011)
163 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' agreed motion to reset 161 is granted. Joint trial plan to be filed on or before 1/25/11. Expert discovery shall be completed by 2/28/11. No appearance is required on the 1/19/11 notice date. Mailed notice (kef, ) (Entered: 01/12/2011)
164 MOTION by Defendant Sheriff of Cook County to file instanter Defendant's Response to Plaintiffs' Motion to Compel (Attachments: # 1 Exhibit A)(Bruce, Julia) (Entered: 01/18/2011)
165 NOTICE of Motion by Julia Suzanne Bruce for presentment of motion to file instanter 164 before Honorable Amy J. St. Eve on 1/25/2011 at 08:30 AM. (Bruce, Julia) (Entered: 01/18/2011)
166 MINUTE entry before Honorable Amy J. St. Eve: Defendant's motion for leave to file response instanter 164 is granted. Counsel should separately file the response brief upon receipt of this order. No appearance is required on the 1/25/11 notice date. Mailed notice (kef, ) (Entered: 01/19/2011)
167 RESPONSE by Sheriff of Cook County to compel 158 (Bruce, Julia) Modified on 1/24/2011 (vmj, ). (Entered: 01/20/2011)
168 Joint Trial Plan by Simone Jackson, Catherine Zaborowski [and defendants] (Flaxman, Kenneth) (Entered: 01/25/2011)
169 NSWER to second amended complaint 131 and jury demand by Cook County, Illinois, Sheriff of Cook County(Bruce, Julia) Modified to link document on 1/26/2011 (vmj, ). (Entered: 01/25/2011)
170 WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 1/26/2011: The Court grants in part and denies in part Plaintiff's motion to compel 158 . [For further details see minute order.] Mailed notice(kef, ) (Entered: 01/26/2011)
171 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 1/27/2011 and continued to 3/24/2011 at 08:30 AM. Defendant is to serve complete responses to Plaintiffs interrogatories 2, 4, 6, 8,10, 13, and 15 by no later than 2/11/11. Dispositive motions with supporting memoranda should be filed on or before 5/31/11. Mailed notice (kef, ) (Entered: 01/27/2011)
172 ATTORNEY Appearance for Plaintiffs Nicole Blair, Lisa Brown, Danielle Bryant, Isabel Carmona, Mariane Cruz, Jennifer Farrar, Simone Jackson, Denae Johnson, Deborah Lee, Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, Latania Walton, Catherine Zaborowski by Stacey Lynn Scanlon (Scanlon, Stacey) (Entered: 01/31/2011)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 18 of 28

02/17/2011 02/17/2011 02/22/2011 03/08/2011
03/08/2011 03/15/2011 03/16/2011
03/24/2011 04/04/2011 04/04/2011 04/07/2011
04/14/2011
04/15/2011 04/25/2011 04/25/2011 04/27/2011 04/27/2011

173 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to bar evidence of "security interest" in restraining pregnant detainees who are in labor (Flaxman, Kenneth) (Entered: 02/17/2011)
174 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to bar 173 before Honorable Amy J. St. Eve on 2/22/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 02/17/2011)
175 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 2/22/2011. Plaintiffs' motion to bar evidence of "security interest" 173 is entered. Response by 3/8/11. Reply by 3/15/11. Mailed notice (kef, ) (Entered: 02/22/2011)
176 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to bar evidence of "security interest" in restraining pregnant detainees who are in labor 173 (Attachments: # 1 Exhibit A,B,C)(Bruce, Julia) (Entered: 03/08/2011)
177 NOTICE by Cook County, Illinois, Sheriff of Cook County re response in opposition to motion, 176 (Bruce, Julia) (Entered: 03/08/2011)
178 REPLY memorandum by plaintiffs Simone Jackson, Catherine Zaborowski in support of motion 176 (Flaxman, Kenneth) Modified on 3/16/2011 (vmj, ). (Entered: 03/15/2011)
179 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion to bar evidence of "security interest" in restraining pregnant detainees who are in labor 173 is denied without prejudice. Defendants, however, must serve responses to interrogatories 2, 6, and 10 in accordance with this order by no later than 4/1/11. [For further details see minute order.] Mailed notice (kef, ) (Entered: 03/16/2011)
180 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 3/24/2011 and continued to 6/2/2011 at 08:30 AM.Mailed notice (kef, ) (Entered: 03/24/2011)
181 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to bar evidence of "security interest" in restraining pregnant detainees who are in labor [renewed] (Flaxman, Kenneth) (Entered: 04/04/2011)
182 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to bar 181 before Honorable Amy J. St. Eve on 4/7/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 04/04/2011)
183 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 4/7/2011. Plaintiffs' renewed motion to bar evidence of "security interest" in restraining pregnant detainees who are in labor 181 is entered. Response by 4/14/11. Reply by 4/21/11. Mailed notice (kef, ) (Entered: 04/07/2011)
184 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to bar evidence of "security interest" in restraining pregnant detainees who are in labor [renewed] 181 (Attachments: # 1 Exhibit, # 2 Exhibit)(Gallagher, Michael) (Entered: 04/14/2011)
185 REPLY by plaintiffs in support of renewed motion to bar 184 (Flaxman, Kenneth) (Docket Text modified by Clerk's Office). (Entered: 04/15/2011)
186 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to compel defendant Dart to sbumit to a deposition (Flaxman, Kenneth) (Entered: 04/25/2011)
187 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to compel 186 before Honorable Amy J. St. Eve on 4/28/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 04/25/2011)
188 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to overrule objections to Rule 36 requests (Flaxman, Kenneth) (Entered: 04/27/2011)
189 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 188 before Honorable Amy J. St. Eve on 5/5/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 04/27/2011)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 19 of 28

04/28/2011 04/28/2011
04/28/2011 04/28/2011 05/05/2011 05/05/2011 05/10/2011 05/20/2011 05/24/2011 05/27/2011 05/27/2011 05/27/2011 06/02/2011 06/02/2011 06/02/2011 06/06/2011

190 MINUTE entry before Honorable Amy J. St. Eve:Motion hearing held on 4/28/2011. Plaintiff's motion to compel defendant Dart to submit to a deposition 186 and motion to overrule objections to Rule 26 requests 188 are entered. Responses by 5/5/11. Replies by 5/10/11. Mailed notice (kef, ) (Entered: 04/28/2011)
191 MOTION by counsel for Plaintiffs Nicole Blair, Lisa Brown, Danielle Bryant, Isabel Carmona, Mariane Cruz, Jennifer Farrar, Simone Jackson, Denae Johnson, Deborah Lee, Felicia Ligon, Angela Oss, Sheena Richardson, Bennetta Sidney, Monique Starnes, Latania Walton, Catherine Zaborowski to withdraw as attorney Stacey Scanlon (Morrissey, Thomas) (Entered: 04/28/2011)
192 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to withdraw as attorney, 191 before Honorable Amy J. St. Eve on 5/5/2011 at 08:30 AM. (Morrissey, Thomas) (Entered: 04/28/2011)
193 MINUTE entry before Honorable Amy J. St. Eve: Stacey Scanlon's motion to withdraw as counsel for plaintiffs 191 is granted. Attorney Stacey Lynn Scanlon terminated. No appearance is required on the 5/5/11 notice date. Mailed notice (kef, ) (Entered: 04/28/2011)
194 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to overrule objections to Rule 36 requests 188 (Bruce, Julia) (Entered: 05/05/2011)
195 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to compel defendant Dart to sbumit to a deposition 186 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Gallagher, Michael) (Entered: 05/05/2011)
196 REPLY by Simone Jackson, Catherine Zaborowski to response in opposition to motion 194 , response in opposition to motion, 195 (Flaxman, Kenneth) (Entered: 05/10/2011)
197 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Maria Valdez pursuant to Local Rule 72.1signed by Executive Committee on 5/20/2011. (For further detail see order)(vmj, ) (Entered: 05/23/2011)
198 MINUTE entry before Honorable Amy J. St. Eve: Status hearing set for 6/2/11 is stricken and reset to 6/29/2011 at 08:30 AM.Mailed notice (kef, ) (Entered: 05/24/2011)
199 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for extension of time UNOPPOSED (Gallagher, Michael) (Entered: 05/27/2011)
200 UNOPPOSED NOTICE of Motion by Michael L. Gallagher for presentment of extension of time 199 before Honorable Amy J. St. Eve on 5/31/2011 at 08:30 AM. (Gallagher, Michael) (Entered: 05/27/2011)
201 MINUTE entry before Honorable Amy J. St. Eve: Defendants' unopposed motion for extension of time 199 is granted. Dispositive motions with supporting memoranda should be filed on or before 6/14/11. No appearance is required on the 5/31/11 notice date. Mailed notice (kef, ) (Entered: 05/27/2011)
202 MINUTE entry before Honorable Amy J. St. Eve: The Court denies Plaintiffs' motion to compel Defendant Dart to submit to a deposition 186 . [For further details see minute order.] Mailed notice (kef, ) (Entered: 06/02/2011)
203 MINUTE entry before Honorable Amy J. St. Eve: The Court, in its discretion, denies Plaintiffs' renewed motion to bar evidence as a discovery sanction 181 . [For further details see minute order.] Mailed notice (kef, ) (Entered: 06/02/2011)
204 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 188 before Honorable Maria Valdez on 6/15/2011 at 09:45 AM. (Flaxman, Kenneth) (Entered: 06/02/2011)
205 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for reconsideration regarding order on motion to compel, text entry 202 (Flaxman, Kenneth) (Entered: 06/06/2011)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 20 of 28

06/06/2011 06/07/2011 06/07/2011 06/07/2011 06/11/2011 06/11/2011 06/13/2011
06/14/2011 06/14/2011
06/14/2011 06/14/2011 06/14/2011 06/15/2011 06/15/2011
06/15/2011

206 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for reconsideration, motion for relief, 205 before Honorable Amy J. St. Eve on 6/14/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 06/06/2011)
207 MINUTE entry before Honorable Amy J. St. Eve: The Court denies Plaintiffs' motion for reconsideration 205 . No appearance is required on the 6/14/11 notice date. [For further details see minute order.] Mailed notice (kef, ) (Entered: 06/07/2011)
208 RESPONSE by Defendants Cook County, Illinois, Sheriff of Cook County to order on motion for reconsideration, terminate deadlines and hearings 207 (Attachments: # 1 Exhibit, # 2 Exhibit)(Gallagher, Michael) (Entered: 06/07/2011)
209 NOTICE by Cook County, Illinois, Sheriff of Cook County re Response 208 (Gallagher, Michael) (Entered: 06/07/2011)
210 MOTION by Defendants Cook County, Illinois, Sheriff of Cook CountyDefendants seek leave to file briefs and Rule 56 statements of facts in excess of limits allowable under LR 7.1 and 56.1 (Gallagher, Michael) (Entered: 06/11/2011)
211 NOTICE of Motion by Michael L. Gallagher for presentment of motion for miscellaneous relief 210 before Honorable Amy J. St. Eve on 6/14/2011 at 08:30 AM. (Gallagher, Michael) (Entered: 06/11/2011)
212 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion to file statements of facts and dispositive motions in excess of allowable limits 210 is granted. Defendants are given leave to file up to 20 pages in support of their motion for summary judgment and up to 100 asserted facts. No appearance is required on the 6/14/11 notice date. Mailed notice (kef, ) (Entered: 06/13/2011)
213 MOTION by Defendant Sheriff of Cook County for summary judgment (Bruce, Julia) (Entered: 06/14/2011)
214 56.1(a) STATEMENT by Sheriff of Cook County (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, Part 1, # 15 Exhibit N, Part 2, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, Part 1, # 20 Exhibit R, Part 2, # 21 Exhibit R, Part 3, # 22 Exhibit R, Part 4, # 23 Exhibit R, Part 5, # 24 Exhibit S, Part 1, # 25 Exhibit S, Part 2, # 26 Exhibit T, # 27 Exhibit U, Part 1, # 28 Exhibit U, Part 2, # 29 Exhibit U, Part 3, # 30 Exhibit U, Part 4, # 31 Exhibit V, # 32 Exhibit W, Part 1, # 33 Exhibit W, Part 2, # 34 Exhibit W, Part 3, # 35 Exhibit W. Part 4, # 36 Exhibit W. Part 5, # 37 Exhibit W, Part 6, # 38 Exhibit X, Part 1, # 39 Exhibit X, Part 2, # 40 Exhibit X, Part 3, # 41 Exhibit Y, # 42 Exhibit Z, # 43 Exhibit AA, # 44 Exhibit BB, # 45 Exhibit CC, Part 1, # 46 Exhibit CC, Part 2, # 47 Exhibit CC, Part 3, # 48 Exhibit CC, Part 4, # 49 Exhibit DD, # 50 Exhibit EE, # 51 Exhibit FF, # 52 Exhibit GG, # 53 Exhibit HH, # 54 Exhibit II, Part 1, # 55 Exhibit II, Part 2, # 56 Exhibit II, Part 3, # 57 Exhibit II, Part 4, # 58 Exhibit II, Part 5)(Bruce, Julia) (Entered: 06/14/2011)
215 MEMORANDUM by Sheriff of Cook County in support of motion for summary judgment 213 (Bruce, Julia) (Entered: 06/14/2011)
216 MOTION by Plaintiffs Catherine Zaborowski, Simone Jackson for partial summary judgment (Flaxman, Kenneth) (Entered: 06/14/2011)
217 RULE 56 (c)(1)(a) Statement by Simone Jackson, Catherine Zaborowski regarding motion for partial summary judgment 216 (Flaxman, Kenneth) (Entered: 06/14/2011)
218 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for leave to file excess pages (Flaxman, Kenneth) (Entered: 06/15/2011)
219 EXHIBIT by Plaintiffs Simone Jackson, Catherine Zaborowski regarding MOTION by Plaintiffs Catherine Zaborowski, Simone Jackson for partial summary judgment 216 , Rule 56 statement 217 (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6−13, # 3 Exhibit 14−17, # 4 Exhibit 18−23, # 5 Exhibit 24−32)(Flaxman, Kenneth) (Entered: 06/15/2011)
220 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois for summary judgment as to Plaintiffs' class claims (Gallagher, Michael) (Entered: 06/15/2011)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 21 of 28

06/15/2011
06/15/2011 06/15/2011 06/15/2011 06/15/2011 06/15/2011 06/15/2011 06/16/2011
06/16/2011 06/22/2011
06/22/2011 06/28/2011 07/14/2011 07/14/2011 07/14/2011

221 RULE 56.a(1) Statement by Cook County, Illinois, Sheriff of Cook County regarding motion for summary judgment 220 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit L, # 14 Exhibit L, # 15 Exhibit L, # 16 Exhibit L, # 17 Exhibit N, # 18 Exhibit N, # 19 Exhibit N, # 20 Exhibit N, # 21 Exhibit N, # 22 Exhibit O, # 23 Exhibit O, # 24 Exhibit P, # 25 Exhibit P, # 26 Exhibit Q, # 27 Exhibit Q, # 28 Exhibit Q, # 29 Exhibit Q, # 30 Exhibit Q, # 31 Exhibit R, # 32 Exhibit S, # 33 Exhibit T, # 34 Exhibit U, # 35 Exhibit V, # 36 Exhibit V, # 37 Exhibit V, # 38 Exhibit W, # 39 Exhibit X, # 40 Exhibit X, # 41 Exhibit X, # 42 Exhibit X, # 43 Exhibit X, # 44 Exhibit X, # 45 Exhibit X, # 46 Exhibit X, # 47 Exhibit X, # 48 Exhibit X, # 49 Exhibit Y, # 50 Exhibit Y, # 51 Exhibit Z)(Gallagher, Michael) (Entered: 06/15/2011)
222 DOCUMENT entered in error (Gallagher, Michael) (Modified by Clerk's Office) (Entered: 06/15/2011)
223 MEMORANDUM by Cook County, Illinois, Sheriff of Cook County in support of motion for summary judgment 220 Corrected (Gallagher, Michael) (Entered: 06/15/2011)
224 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for leave to file excess pages [corrected] (Flaxman, Kenneth) (Entered: 06/15/2011)
225 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for leave to file excess pages 224 before Honorable Amy J. St. Eve on 6/21/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 06/15/2011)
226 MINUTE entry before Honorable Maria Valdez: Motion hearing held on 6/15/2011. MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski to overrule objections to Rule 36 requests 188 is taken under advisement. Court will rule by mail. Mailed notice (yp, ) (Entered: 06/15/2011)
228 NOTICE of Correction regarding 222 (vmj, ) (Entered: 06/16/2011)
227 MINUTE entry before Honorable Amy J. St. Eve: Parties' motions for leave to file in excess pages 218 224 are granted. Document 222 is stricken because it is a memorandum and not a motion. Parties' motions for summary judgment 213 216 220 are entered. Responses by 7/14/11. Replies by 7/28/11. No appearance is required on the 6/21/11 notice date. Status hearing remains set for 6/29/11 at 8:30 a.m. Mailed notice (kef, ) (Entered: 06/16/2011)
229 MEMORANDUM by Simone Jackson, Catherine Zaborowski in support of motion for partial summary judgment 216 (Flaxman, Kenneth) (Entered: 06/16/2011)
230 MINUTE entry before Honorable Maria Valdez: For the foregoing reasons, Plaintiffs' Motion to Overrule Objections to Rule 36 Requests 188 and deem specific requests to be admitted is granted in part and denied in part. Defendants are to amend their answers to Plaintiffs' requests for admission by July 5, 2011 consistent with this Order. (For further details see separate order.)Mailed notice (yp, ) (Entered: 06/22/2011)
231 ORDER Signed by the Honorable Maria Valdez on 6/22/2011.Mailed notice(yp, ) (Entered: 06/22/2011)
232 MINUTE entry before Honorable Amy J. St. Eve: Status hearing set for 6/29/11 is stricken and reset to 10/3/2011 at 08:30 AM.Mailed notice (kef, ) (Entered: 06/28/2011)
233 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for leave to file excess pages in their Response to Plaintiffs' Motion for Summary Judgment (Bruce, Julia) (Entered: 07/14/2011)
234 NOTICE of Motion by Julia Suzanne Bruce for presentment of motion for leave to file excess pages 233 before Honorable Amy J. St. Eve on 7/19/2011 at 08:30 AM. (Bruce, Julia) (Entered: 07/14/2011)
235 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion to file their response to plaintiffs' motion for summary judgment in excess of the allowable limits 233 is granted. No appearance is required on the 7/19/11 notice date. Mailed notice (kef, ) (Entered: 07/14/2011)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 22 of 28

07/14/2011
07/14/2011 07/14/2011 07/14/2011 07/15/2011 07/15/2011 07/15/2011 07/15/2011 07/15/2011 07/19/2011
07/19/2011 07/20/2011
08/09/2011 08/09/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011

236 RULE 56.1(a) Statement of Additional Facts Statement (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Bruce, Julia) (Entered: 07/14/2011)
237 RESPONSE by Defendants Cook County, Illinois, Sheriff of Cook County to Rule 56 statement 217 (Bruce, Julia) (Entered: 07/14/2011)
238 RESPONSE by Cook County, Illinois, Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Catherine Zaborowski, Simone Jackson for partial summary judgment 216 (Bruce, Julia) (Entered: 07/14/2011)
239 MEMORANDUM by Simone Jackson, Catherine Zaborowski in Opposition to motion for summary judgment 220 (Flaxman, Kenneth) (Entered: 07/14/2011)
240 MEMORANDUM by Simone Jackson, Catherine Zaborowski in Opposition to motion for summary judgment 213 (Flaxman, Kenneth) (Entered: 07/15/2011)
241 RULE 56.1(b)(3) Statement by Simone Jackson, Catherine Zaborowski regarding motion for summary judgment 213 (Flaxman, Kenneth) (Entered: 07/15/2011)
242 RULE 56.1(b)(3) Statement by Simone Jackson, Catherine Zaborowski regarding motion for summary judgment 220 (Flaxman, Kenneth) (Entered: 07/15/2011)
243 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for extension of time to file summary judgment documents (Flaxman, Kenneth) (Entered: 07/15/2011)
244 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for extension of time to file 243 before Honorable Amy J. St. Eve on 7/28/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 07/15/2011)
245 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for extension of time to file response/reply as to motion for summary judgment 213 , motion for summary judgment 220 , memorandum in support of motion 215 , memorandum in support of motion 223 (Bruce, Julia) (Entered: 07/19/2011)
246 AGREED NOTICE of Motion by Julia Suzanne Bruce for presentment of motion for extension of time to file response/reply, motion for relief,,,,,,,, 245 before Honorable Amy J. St. Eve on 7/26/2011 at 08:30 AM. (Bruce, Julia) (Entered: 07/19/2011)
247 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion for extension of time for filing summary judgment documents 243 is granted. Defendants' motion for extension of time 245 is granted. Summary judgment replies should be filed on or before 8/11/11. No appearance is required on the noticed motion dates. Mailed notice (kef, ) (Entered: 07/20/2011)
248 MOTION by Defendant Sheriff of Cook County for leave to file an additional statement of fact in support of their motion for summary judgment (Attachments: # 1 Exhibit 1)(Bruce, Julia) (Entered: 08/09/2011)
249 NOTICE of Motion by Julia Suzanne Bruce for presentment of motion for leave to file 248 before Honorable Amy J. St. Eve on 8/16/2011 at 08:30 AM. (Bruce, Julia) (Entered: 08/09/2011)
250 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for leave to file excess pages (Bruce, Julia) (Entered: 08/11/2011)
251 NOTICE of Motion by Julia Suzanne Bruce for presentment of motion for leave to file excess pages 250 before Honorable Amy J. St. Eve on 8/16/2011 at 08:30 AM. (Bruce, Julia) (Entered: 08/11/2011)
252 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County to strike Rule 56 statement 241 , Rule 56 statement 242 (Bruce, Julia) (Entered: 08/11/2011)
253 RESPONSE by Defendant Sheriff of Cook County to Rule 56 statement 241 Plaintiffs' Additional Fact (Bruce, Julia) (Entered: 08/11/2011)
254 REPLY by Defendant Sheriff of Cook County to memorandum in opposition to motion 240 in further support of his motion for summary judgment (Bruce, Julia) (Entered: 08/11/2011)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 23 of 28

08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/12/2011 08/16/2011
08/16/2011
08/19/2011 08/19/2011 08/25/2011 08/25/2011 08/25/2011 09/21/2011 10/21/2011
11/18/2011

255 NOTICE by Defendants Cook County, Illinois, Sheriff of Cook County to strike Rule 56 statement 241 , Rule 56 statement 242 . 252 , Response 253 , reply 254 (Bruce, Julia) (Text modified by Clerk's Office) (vmj, ). (Entered: 08/11/2011)
256 RESPONSE by Defendants Cook County, Illinois, Sheriff of Cook County to Rule 56 statement 242 Plaintiffs' Additional Facts (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Gallagher, Michael) (Entered: 08/11/2011)
257 REPLY by Defendants' in support of their motion for summary judgment as to plaintiffs' class claims (Gallagher, Michael) (Text modified by Clerk's Office) (vmj, ). (Entered: 08/11/2011)
258 NOTICE by Cook County, Illinois, Sheriff of Cook County re reply to response to motion 257 , Response 256 (Gallagher, Michael) (Entered: 08/11/2011)
259 RESPONSE regarding motion for partial summary judgment 216 (Flaxman, Kenneth) (Text Modified by Clerk's Office) (vmj, ). (Entered: 08/11/2011)
260 REPLY by Plaintiffs in support of cross−motion for partial summary judgment 216 (Flaxman, Kenneth) (Text Modified by Clerk's Office) (vmj, ). (Entered: 08/11/2011)
261 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion for leave to file in excess pages 250 is granted. Mailed notice (kef, ) (Entered: 08/12/2011)
262 MINUTE entry before Honorable Amy J. St. Eve: Motion hearing held. Defendant's motion for leave to file one additional statement of fact in support of the motion for summary judgment 250 is granted. Plaintiff's oral motion for leave to file 3 additional facts is granted. Plaintiff is given to 8/22/2011 to file the additional facts. Oral motion to extend time to file responses is granted in part. Responses are to be filed by 8/26/2011. Status hearing date of 10/3/2011 shall stand.Mailed notice (jms, ) (Entered: 08/16/2011)
263 MINUTE entry before Honorable Amy J. St. Eve: Minute entry dates 8/16/2011 262 is amended as follows: Mr. Flaxman abruptly left the courtroom after the case was called. Motion hearing held. Defendant's motion for leave to file one additional statement of fact in support of the motion for summary judgment 250 is granted. Plaintiff's oral motion for leave to file 3 additional facts is granted. Plaintiff is given to 8/22/2011 to file the additional facts. Oral motion to extend time to file responses is granted in part. Responses are to be filed by 8/26/2011. Status hearing date of 10/3/2011 shall stand.Mailed notice (jms, ) (Entered: 08/16/2011)
264 ADDITIONAL Statement of Facts pursuant to Local Rule 56.1 by plaintiffs'. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Morrissey, Thomas) (Text Modified by Clerk's Office) (vmj, ). (Entered: 08/19/2011)
265 NOTICE by All Plaintiffs re statement 264 (Morrissey, Thomas) (Entered: 08/19/2011)
266 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion to strike plaintiffs' responses to defendants' statement of facts 252 is entered and taken under advisement. Mailed notice (kef, ) (Entered: 08/25/2011)
267 RULE 56 (c)(1) Statement by Simone Jackson, Catherine Zaborowski regarding motion for summary judgment 213 (Flaxman, Kenneth) (Entered: 08/25/2011)
268 RESPONSE by Defendants Cook County, Illinois, Sheriff of Cook County to statement 264 of Additional Facts (Bruce, Julia) (Entered: 08/25/2011)
269 MINUTE entry before Honorable Amy J. St. Eve: Status hearing set for 10/3/11 is stricken and reset to 11/29/2011 at 08:30 AM.Mailed notice (kef, ) (Entered: 09/21/2011)
270 MINUTE entry before Honorable Maria Valdez: All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Honorable Maria Valdez no longer referred to the case.Mailed notice (yp, ) (Entered: 10/21/2011)
271 MINUTE entry before Honorable Amy J. St. Eve: Status hearing set for 11/29/11 is stricken and reset to 1/11/2012 at 08:30 AM.Mailed notice (kef, ) (Entered:

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 24 of 28

12/07/2011
12/13/2011 12/13/2011 12/14/2011 12/14/2011 12/14/2011 12/20/2011
12/20/2011 01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/10/2012

11/18/2011)
272 MINUTE entry before Honorable Amy J. St. Eve: Certain statements in Defendant Sheriff Dart's Local Rule 56.1(a) Statement of Facts (R. 214) are supported by interrogatory answers that do not comply with Federal Rule of Civil Procedure 33(b)(3), namely, that "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." The oath requirement can be satisfied by having the answers sworn to before a notary public or by providing a declaration −− under penalty of perjury −− pursuant to 28 U.S.C. § 1746. The Court directs Defendant Dart to supplement his Rule 56.1(a) Statement of Facts by supporting these statements with properly verified interrogatories by no later than December 14, 2011. Defendant Dart's failure to do so will result in the Court striking these statements as insufficient evidence in support of his Federal Rule of Civil Procedure 56 motion for summary judgment. See Fed.R.Civ.P. 56(e).Mailed notice (kef, ) (Entered: 12/07/2011)
273 MOTION by Plaintiff Catherine Zaborowski[Conditional] to Defer Considering Defendant Dart's Individual Capacity Summary Judgment Motion (Flaxman, Kenneth) (Entered: 12/13/2011)
274 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 273 before Honorable Amy J. St. Eve on 12/20/2011 at 08:30 AM. (Flaxman, Kenneth) (Entered: 12/13/2011)
275 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion to Defer Considering Defendant Dart's Individual Capacity Summary Judgment Motion 273 is entered and taken under advisement. No appearance is required on the 12/20/11 notice date. Mailed notice (kef, ) (Entered: 12/14/2011)
276 REVISED EXHIBIT Z by Defendants Cook County, Illinois, Sheriff of Cook County re Second Supplemental Answer to plantiffs' second set of interrogatories 221 (Gallagher, Michael) (Text modified by clerk's office) (vmj, ). (Entered: 12/14/2011)
277 EXHIBIT by Plaintiff Catherine Zaborowski revised Exhibits GG, EE, FF regarding statement,,,,, 214 (Attachments: # 1 Exhibit EE, # 2 Exhibit FF)(Gallagher, Michael) (Entered: 12/14/2011)
278 MINUTE entry before Honorable Amy J. St. Eve: The Court denies the parties' cross−motions for summary judgment as to the Class Plaintiffs' official capacity claim and state law negligence claim 216 220 . The Court grants Sheriff Dart's motion for summary judgment as to the individual capacity claim 213 . Because the Court addressed Defendants' objections to Plaintiffs' Local Rule 56.1(b)(3)(B) Responses in the context of each fact, the Court denies Defendants' motion to strike as moot 252 . The Court also denies Plaintiffs' conditional motion to defer Defendant Dart's individual capacity claim summary judgment motion as moot 273 . [For further details see separate Memorandum Opinion and Order.] Mailed notice (kef, ) (Entered: 12/20/2011)
279 MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 12/20/2011:Mailed notice(kef, ) (Entered: 12/20/2011)
280 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for leave to file supplement to joint trial plan (Flaxman, Kenneth) (Entered: 01/09/2012)
281 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for leave to file 280 before Honorable Amy J. St. Eve on 1/17/2012 at 08:30 AM. (Flaxman, Kenneth) (Entered: 01/09/2012)
282 MOTION by Plaintiffs Simone Jackson, Catherine Zaborowski for leave to file supplement to joint trial plan [CORRECTED PAGE ORDER] (Flaxman, Kenneth) (Entered: 01/09/2012)
283 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion for leave to supplement 280 is denied as moot in light of the corrected filing at doc. 282. Mailed notice (kef, ) (Entered: 01/09/2012)
284 MINUTE entry before Honorable Amy J. St. Eve: Plaintiffs' motion for leave to file supplement to joint trial plan 282 is granted. Counsel should separately file the

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 25 of 28

01/10/2012 01/11/2012 01/11/2012 01/12/2012
01/17/2012
01/17/2012 01/18/2012 01/19/2012 02/03/2012
03/20/2012 04/12/2012 04/26/2012 05/17/2012 05/17/2012

supplement upon receipt of this order. No appearance is required on the 1/17/12 notice date. Mailed notice (kef, ) (Entered: 01/10/2012)
285 SUPPLEMENT to other 168 [joint trial plan] (Flaxman, Kenneth) (Entered: 01/10/2012)
286 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Maria Valdez for the purpose of holding proceedings related to: settlement conference.(kef, )Mailed notice. (Entered: 01/11/2012)
287 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 1/11/2012 and continued to 3/20/2012 at 08:30 AM.Mailed notice (kef, ) (Entered: 01/11/2012)
288 MINUTE entry before Honorable Maria Valdez: Settlement Conference set for 2/3/2012 at 11:00 a.m. in Courtroom 1300. Judge Valdez requires full compliance with the Court's Standing Order on Settlement Conference found on Judge Valdez's website available at www.ilnd.uscourts.gov, or the parties can contact courtroom deputy, Yolanda Pagan, at 312/408−5135 for a copy. Failure to comply with the provisions of the Court's Standing Order may result in the unilateral cancellation of the settlement conference by the Court. Absent leave from the Court, cancellation will result if the Plaintiff fails to submit to chambers copies of the settlement letters four days prior to the settlement conference. Because of the volume of settlement conferences conducted by Judge Valdez, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship. Mailed notice (yp, ) (Entered: 01/12/2012)
289 MOTION by Defendants Cook County, Illinois, Sheriff of Cook County for reconsideration regarding memorandum opinion and order 279 denying Defendants' motion for summary judgment as to Plaintiffs' claims against Sheriff Dart and Cook County. (Gallagher, Michael) (Text Modified by clerk's office) (vmj, ). (Entered: 01/17/2012)
290 NOTICE of Motion by Michael L. Gallagher for presentment of motion for reconsideration, motion for relief,, 289 before Honorable Amy J. St. Eve on 1/23/2012 at 08:30 AM. (Gallagher, Michael) (Entered: 01/17/2012)
291 MINUTE entry before Honorable Amy J. St. Eve: Defendants' motion for reconsideration 289 is entered. No appearance is required on the 1/23/12 notice date. Mailed notice (kef, ) (Entered: 01/18/2012)
292 MINUTE entry before Honorable Amy J. St. Eve: The Court, in its discretion, denies Defendants' motion for reconsideration 289 . [For further details see minute order.] Mailed notice (kef, ) (Entered: 01/19/2012)
293 MINUTE entry before Honorable Maria Valdez:Settlement conference held on 2/3/2012. Parties reach terms of settlement in principle. Counsel for Defendants to recommend the settlement to the county board. County board must approve of the settlement before it may be final. The court will leave the settlement referral open in case the parties need any further assistance.Mailed notice (yp, ) (Entered: 02/03/2012)
294 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 3/20/2012 and continued to 4/19/2012 at 08:30 AM.Mailed notice (kef, ) (Entered: 03/20/2012)
295 MINUTE entry before Honorable Amy J. St. Eve: At the parties' request, Status hearing set for 4/19/12 is stricken and reset to 4/26/2012 at 08:30 AM.Mailed notice (kef, ) (Entered: 04/12/2012)
296 MINUTE entry before Honorable Amy J. St. Eve:Status hearing held on 4/26/2012 and continued 5/23/2012 at 08:30 AM.Mailed notice (kef, ) (Entered: 04/26/2012)
297 MINUTE entry before Honorable Amy J. St. Eve: At the parties' request, Status hearing set for 5/23/12 is stricken and reset to 5/22/2012 at 08:30 AM.Mailed notice (kef, ) (Entered: 05/17/2012)
298 MOTION by Plaintiff Catherine Zaborowski preliminary approval of class action settlement (Flaxman, Kenneth) (Entered: 05/17/2012)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 26 of 28

05/17/2012 05/22/2012
05/22/2012
05/22/2012 08/28/2012 08/30/2012
08/30/2012 09/13/2012 12/10/2012 12/10/2012 12/13/2012
12/14/2016 12/14/2016 01/04/2017
09/18/2017 09/18/2017 09/18/2017

299 NOTICE of Motion by Kenneth N Flaxman for presentment of motion 298 before Honorable Amy J. St. Eve on 5/22/2012 at 08:30 AM. (Flaxman, Kenneth) (Text modified by clerk's office) (vmj, ). (Entered: 05/17/2012)
300 MINUTE entry before Honorable Amy J. St. Eve: Status hearing held on 5/22/2012. Plaintiffs' agreed motion for preliminary approval of class action settlement 298 is granted. Notices shall be mailed out by 6/12/12. Any objections shall be filed by 8/7/12. Final fairness hearing set for 8/30/12 at 8:30 a.m. Order Preliminarily Approving Settlement and Providing for Notice to follow shortly. Mailed notice (kef, ) (Entered: 05/22/2012)
301 MINUTE entry before Honorable Maria Valdez: All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Honorable Maria Valdez no longer referred to the case.Mailed notice (yp, ) (Entered: 05/22/2012)
302 ORDER Preliminary Approving Settlement Signed by the Honorable Amy J. St. Eve on 5/22/2012:Mailed notice(kef, ) (Entered: 05/31/2012)
303 MOTION by Plaintiff Catherine Zaborowski to approve class action settlement. (Flaxman, Kenneth) (Text modified) (vmj, ). (Entered: 08/28/2012)
304 MINUTE entry before Honorable Amy J. St. Eve: Final fairness hearing held on 8/30/2012. Plaintiffs' motion to approve class action settlement 303 is granted. All pending dates and deadlines are stricken. Civil case terminated. Mailed notice (kef, ) (Entered: 08/30/2012)
305 ORDER of Dismissal Signed by the Honorable Amy J. St. Eve on 8/30/2012:Mailed notice(kef, ) (Entered: 08/30/2012)
306 LETTER from Sherri Y. Bryant dated 9/13/2012. (vmj, ) (Entered: 09/17/2012)
307 MOTION seeking guidance to expedite first payout to class members by Plaintiff Zaborowski. (Attachments: # 1 Exhibit Settlement Agreement)(Morrissey, Thomas) (Docket text modified by clerk's office) (vmj, ). (Entered: 12/10/2012)
308 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion 307 before Honorable Amy J. St. Eve on 12/13/2012 at 8:30 AM. (Morrissey, Thomas) (Modified by clerk's office) (vmj, ). (Entered: 12/10/2012)
309 MINUTE entry before Honorable Amy J. St. Eve: Motion hearing held on 12/13/2012. Plaintiffs' motion seeking guidance to expedite first payout to class members 307 is granted. The value of a point is set at $10,000. Mailed notice (kef, ) (Entered: 12/13/2012)
310 MOTION by Plaintiff Catherine Zaborowskito Close Out Administration of Settlment Agreed (Attachments: # 1 Exhibit Settlement Agreement)(Morrissey, Thomas) (Entered: 12/14/2016)
311 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for miscellaneous relief 310 before Honorable Amy J. St. Eve on 1/10/2017 at 08:30 AM. (Morrissey, Thomas) (Entered: 12/14/2016)
312 MINUTE entry before the Honorable Amy J. St. Eve: Parties' agreed motion to close out the administration of the settlement 310 is granted. Counsel shall prepare and submit a proposed order to to Judge St. Eve's proposed order email, the link for which can be found on her web page. No appearance is required on the 1/10/16 notice motion date. Mailed notice (kef, ) (Entered: 01/04/2017)
313 ATTORNEY Appearance for Defendant Sheriff of Cook County by John Joseph Rock (Rock, John) (Entered: 09/18/2017)
314 ATTORNEY Appearance for Defendant Sheriff of Cook County by Patrick R Moran (Moran, Patrick) (Entered: 09/18/2017)
315 ATTORNEY Appearance for Defendant Sheriff of Cook County by Patrick William Chinnery (Chinnery, Patrick) (Entered: 09/18/2017)

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 27 of 28

09/21/2017 09/21/2017 09/22/2017 09/22/2017 09/22/2017 09/22/2017 09/27/2017
10/04/2017 10/04/2017 10/04/2017 10/04/2017 10/19/2017
10/25/2017 10/31/2017 10/31/2017 10/31/2017

316 MOTION by Plaintiff Catherine Zaborowski to close the administration of the settlement (Morrissey, Thomas) (Entered: 09/21/2017)
317 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for miscellaneous relief 316 before Honorable Amy J. St. Eve on 9/27/2017 at 08:30 AM. (Morrissey, Thomas) (Entered: 09/21/2017)
318 MOTION by Plaintiff Haymarket Center to intervene (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Wall, John) (Entered: 09/22/2017)
319 NOTICE of Motion by John A. Wall for presentment of motion to intervene 318 before Honorable Amy J. St. Eve on 9/27/2017 at 08:30 AM. (Attachments: # 1 Certificate of Service)(Wall, John) (Entered: 09/22/2017)
320 MOTION by Defendant Sheriff of Cook CountyRule 60(b)(6) Relief from Final Order (Attachments: # 1 Exhibit A − Settlement Agreement, # 2 Exhibit B − Gubser Declaration, # 3 Exhibit C − Colbert Declaration)(Chinnery, Patrick) (Entered: 09/22/2017)
321 NOTICE of Motion by Patrick William Chinnery for presentment of motion for miscellaneous relief 320 before Honorable Amy J. St. Eve on 9/27/2017 at 08:30 AM. (Chinnery, Patrick) (Entered: 09/22/2017)
322 MINUTE entry before the Honorable Amy J. St. Eve:Motion hearing held on 9/27/2017. Motion to close the administration of settlement 316 , Haymarket Center's motion to intervene 318 and Sheriff of Cook County's Rule 60(b)(6) motion for relief from final order 320 are entered. Position papers with respect to jurisdiction shall be filed by 10/4/17. Mailed notice (kef, ) (Entered: 09/27/2017)
323 MEMORANDUM by Haymarket Center Memorandum of Law with Respect to Court Jurisdiction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)(Wall, John) (Entered: 10/04/2017)
324 NOTICE by Haymarket Center re memorandum, 323 Notice of Filing (Wall, John) (Entered: 10/04/2017)
325 CERTIFICATE of Service by John A. Wall on behalf of Haymarket Center regarding notice of filing 324 , memorandum, 323 (Wall, John) (Entered: 10/04/2017)
326 MEMORANDUM motion hearing, 322 by Sheriff of Cook County Regarding Jurisdiction to Entertain Rule 60(b)(6) Motion (Chinnery, Patrick) (Entered: 10/04/2017)
327 ORDER Signed by the Honorable Amy J. St. Eve on 10/19/2017: The Court, in its discretion, grants Defendants motion for relief from final judgment brought pursuant to Federal Rule of Civil Procedure 60(b)(6). 320 . The Court denies the Haymarket Centers Rule 24(a)(2) motion to intervene in which it seeks to enforce the settlement agreement. 318 . Further, the Court denies as moot Plaintiffs' motion to close the administration of the settlement because the Court already granted the parties' agreed motion to close out the administration of the settlement on January 4, 2017. 316 . Plaintiffs and Defendant must submit an agreed proposed final order in accordance with this ruling by no later than October 26, 2017. [For further details, see Order.] Mailed notice(kef, ) (Entered: 10/19/2017)
328 ATTORNEY Appearance for Plaintiff Catherine Zaborowski by Patrick William Morrissey (Morrissey, Patrick) (Entered: 10/25/2017)
329 MOTION by Plaintiff Catherine Zaborowski for reconsideration regarding order on motion for miscellaneous relief,,,, order on motion to intervene,,,,,,,,,,,, add and terminate parties,,, 327 (Morrissey, Patrick) (Entered: 10/31/2017)
330 MOTION by Plaintiff Catherine Zaborowski to stay regarding order on motion for miscellaneous relief,,,, order on motion to intervene,,,,,,,,,,,, add and terminate parties,,, 327 (Morrissey, Patrick) (Entered: 10/31/2017)
331 NOTICE of Motion by Patrick William Morrissey for presentment of motion to stay 330 , motion for reconsideration 329 before Honorable Amy J. St. Eve on 11/6/2017 at

Case: 1:08-cv-6946 As of: 11/29/2019 03:08 PM CST 28 of 28

11/03/2017 11/13/2017 11/14/2017 11/15/2017 12/06/2017
04/09/2018

08:30 AM. (Morrissey, Patrick) (Entered: 10/31/2017)
332 MINUTE entry before the Honorable Amy J. St. Eve: Plaintiffs' motion for reconsideration 329 and motion for stay of judgment 330 are entered. Defendants' response shall be filed by 11/13/17. No appearance is required on the 11/6/17 notice motion date. Mailed notice (kef, ) (Entered: 11/03/2017)
333 RESPONSE by Defendant Sheriff of Cook County to motion for reconsideration 329 , motion to stay 330 (Moran, Patrick) (Entered: 11/13/2017)
334 EXHIBIT by Defendant Sheriff of Cook County Exhibit A to Dkt. 333 regarding Response 333 (Moran, Patrick) (Entered: 11/14/2017)
335 REPLY by Plaintiff Catherine Zaborowski to Response 333 (Morrissey, Thomas) (Entered: 11/15/2017)
336 TRANSCRIPT OF PROCEEDINGS held on 9/27/17 before the Honorable Amy J. St. Eve. Court Reporter Contact Information: Joseph Rickhoff, 312−435−5562, joseph_rickhoff@ilnd.uscourts.gov. <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 12/27/2017. Redacted Transcript Deadline set for 1/8/2018. Release of Transcript Restriction set for 3/6/2018. (Rickhoff, Joseph) (Entered: 12/06/2017)
337 ORDER Signed by the Honorable Amy J. St. Eve on 4/9/2018: The Court, in its discretion, grants Plaintiffs' motion for the Court to reconsider its October 19, 2017 Order brought pursuant to Federal Rule of Civil Procedure 59(e). 329 . The Court denies Plaintiffs' motion to stay judgment pending appeal under Federal Rule of Appellate Procedure 8(a) as moot. 330 . [For further details, see Order.] Mailed notice(kef, ) (Entered: 04/09/2018)