Case 1:06-cv-00552 Document 34 Filed 03/31/2006 Page 1 of 27

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

KIM YOUNG, RONALD JOHNSON, and

)

WILLIAM JONES, on behalf of themselves

)

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK, MICHAEL SHEAHAN, )

individually and in his official capacity as Sheriff )

of Cook County, CALLIE BAIRD, individually )

and in her official capacity as former Director of )

the Cook County Department of Corrections,

)

SCOTT KURTOVICH, individually and in his )

official capacity as Director of the Cook County )

Department of Corrections, KAREN SCOTT,

)

individually and in her official capacity as former )

Chief Operating Officer of the Cook County

)

Department of Public Health, STEPHEN

)

MARTIN, Jr., individually and in his official

)

capacity as Chief Operating Officer of the Cook )

County Department of Public Health, RUTH

)

ROTHSTEIN, individually and in her official

)

capacity as former director of the Cook County )

Bureau of Health Services, DANIEL WINSHIP, )

individually and in his official capacity as director )

of the Cook County Bureau of Health Services, )

LEONARD BERSKY, individually and in his )

official capacity as former Chief Operating Officer )

of Cermak Health Services of Cook County; and )

DAVID FAGUS, individually and in his official )

capacity as Chief Operating Officer of Cermak )

Health Services of Cook County,

)

)

Defendants.

)

No: 06-CV-552 JUDGE KENNELLY
JURY TRIAL DEMANDED

SECOND AMENDED COMPLAINT

Named Plaintiffs KIM YOUNG, RONALD JOHNSON and WILLIAM JONES,, on

behalf of themselves and a class of others similarly situated, through their attorneys, Loevy &

Loevy, complaining of Defendants COUNTY OF COOK, MICHAEL SHEAHAN, individually

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and in his official capacity as Cook County Sheriff, CALLIE BAIRD, individually and in her

official capacity as former Director of the Cook County Department of Corrections, SCOTT

KURTOVICH, individually and in his official capacity as Director of the Cook County

Department of Corrections, KAREN SCOTT, individually and in her official capacity as former

Chief Operating Officer of the Cook County Department of Public Health, STEPHEN MARTIN,

Jr., individually and in his official capacity as Chief Operating Officer of the Cook County

Department of Public Health, RUTH ROTHSTEIN, individually and in her official capacity as

former director of the Cook County Bureau of Health Services, DANIEL WINSHIP, individually

and in his official capacity as director of the Cook County Bureau of Health Services,

LEONARD BERSKY, individually and in his official capacity as former Chief Operating Officer

of Cermak Health Services of Cook County, and DAVID FAGUS, individually and in his official

capacity as Chief Operating Officer of Cermak Health Services of Cook County, state as follows:

Introduction

1. This is an action pursuant to 42 U.S.C. § 1983 and state law challenging several

unjustified and sexually-intrusive search procedures used on both men and women during the

booking/intake process at the Cook County Jail (“CCJ”).

2. First, the CCJ maintains a blanket policy requiring that all women placed in its

custody undergo a vaginal swabbing, a procedure which involves the insertion of a probe into the

vagina.

3.

There is no legitimate purpose for subjecting detainees to this procedure. Rather,

as explained below, it serves only to humiliate and dehumanize the women detainees. While

Defendants subject all women to this procedure upon their entry into Cook County Jail, it either

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ceased performing, or significantly restricted the use of the equivalent procedure on male detainees under equivalent circumstances several years ago, after being sued by a male detainee in the case of Thompson v. County of Cook, et al., 03-C-7172.
4 In addition to lacking any legitimate purpose, the procedures are also performed in a coercive, unsanitary, and dehumanizing environment. The examiners often fail to change gloves between procedures or otherwise follow usual precautions against the spread of infection. Moreover, the women are provided no explanation of what is being done to them. Indeed, asking questions can be considered recalcitrance which can result in the use of physical force on the woman.
5. For example, Plaintiff YOUNG was processed into the CCJ as part of a group of approximately 30 women, all of whom were required to undergo the vaginal swabbing. After it became clear what was being done to the group, one of the women demanded to know if the personnel performing the procedures were licensed. In response to her questions, several jail guards assaulted this woman in front of the rest of the group. Plaintiff herself asked what was about to happen to her when she was ordered to place herself on a table and put her legs in stirrups. Her question met with silence and she had to participate without an explanation.
6 The CCJ also requires both men and women to undergo strip and body cavity searches during intake/booking. For men, the procedure requires that they strip naked and line up facing a wall shoulder-to-shoulder with tens of other men (and sometimes more than 100) who are also being processed into the jail. The men are then instructed as a group to bend over and spread their buttocks with their hands. All of the men must remain in this position as guards walk down the row and visually inspects each man’s anal cavity. Often men are forced to stand
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naked amongst each other in close proximity for thirty-minutes or more. 7. Women are required to undergo a similar set of searches, but, at least, not in the
presence of other detainees. The women must strip naked, bend over and assume a crouched position. They are then instructed to cough several times as a guard or guards watch.
8 These strip and visual body cavity searches are conducted pursuant to a blanket procedure that does not require any particularized suspicion that the detainee is concealing anything in his/her cavities. Moreover, the CCJ requires that these searches be conducted on all detainees at the time they are first brought to the CCJ without regard to the nature of the crime for which they are being held. In other words, a person arrested for a traffic-related misdemeanor who has not yet been able to raise bail will be subjected to the same invasive search as someone arrested for much more serious offences.
9 The CCJ had no justification to force PLAINTIFFS and the members of the class to submit to these needlessly invasive searches and/or for forcing them to undergo the procedures in such humiliating ways. Nevertheless, Cook County’s policymakers, including Defendant SHEAHAN, instituted these unconstitutional procedures and they have turned a blind eye to the dehumanizing way in which these searches are conducted.
10. Indeed, individuals have sued previously over these practices, but the relativelysmall liability threatened by these individual suits has not been sufficient to cause the policymakers to implement reforms. Plaintiffs bring this class action to compensate those who have been victimized by these sexually-invasive procedures and, hopefully, to bring change.
Jurisdiction and Venue
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11. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367 as Plaintiffs asserts claims under federal law and the state law claims all arise out of the same facts as the federal claims. Venue is proper under 28 U.S.C. § 1391(b) as Defendant, COUNTY OF COOK, is physically situated in this judicial district, and the events giving rise to the claims in this case all occurred here.
Parties 12. Named Plaintiff KIM YOUNG is 44 years old. She resides in the State of Wisconsin. She is employed as a certified nurse assistant. She has three daughters. 13. Named Plaintiff RONALD JOHNSON is 41 years old and resides in Flossmoor, Illinois. He has a degree in business from Western Illinois University and is employed in auto sales. 14. Names Plaintiff WILLIAM JONES is a 50 year-old Illinois resident. He works as an expediter at a manufacturing company. 15. Defendant COUNTY OF COOK is a county of the State of Illinois. It oversees the Cook County Department of Corrections which in turn operates the Cook County Jail. It also oversees the Cook County Department of Health with in turn operates Cermak Health Services. 16. Defendant MICHAEL SHEAHAN is a resident of Cook County, Illinois. Throughout the class period, he has been the Sheriff of Cook County. In that capacity he is in charge of the Cook County Department of Corrections and the Cook County Jail. By law, custom, and/or delegation, he has policymaking authority over the jail for the actions at issue in this case. He is responsible for ensuring that the policies and practices of the CCJ comply with federal and state requirements for the treatment of detainees. Throughout the class period, he has
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had personal knowledge that the practices challenged in this case were occurring on a routine basis. He is sued in his official and individual capacities for the forced vaginal swabbing procedures as well as for the strip and cavity search procedures.
17. Defendants CALLIE BAIRD and SCOTT KURTOVICH have served as the Director of the Cook County Department of Corrections during the class period. Throughout their respective tenures as Director they have had responsibility, inter alia, for ensuring that the practices of the CCJ comply with federal and state requirements for the treatment of detainees. Throughout their respective tenures as Director, they implemented, enforced, and/or condoned the use of procedures challenged in this case. They are sued in their official and individual capacities for the forced vaginal swabbing procedures as well as for the strip and cavity search procedures.
18. Defendants KAREN SCOTT and STEPHEN MARTIN, Jr., have served as the Chief Operating Officer of the Cook County Department of Public Health. In that capacity they were in charge of the Cook County Department of Health. By law, custom, and/or delegation, they had policymaking authority over actions of Cermak Health Services at the CCJ at issue in this case. Throughout their respective tenures as Director they have had responsibility for ensuring that the policies and practices that they caused to be implemented at the CCJ comply with federal and state requirements for the treatment of detainees. Throughout their respective tenures as Director, they implemented, enforced and/or condoned the use of procedures challenged in this case. They are sued in their official and individual capacities for the forced vaginal swabbing procedures at the CCJ.
19. Defendants RUTH ROTHSTEIN and DANIEL WINSHIP have served as the
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director of the Cook County Bureau of Health Services. In that capacity they were in charge of the Bureau of Health Services and Cermak Health Services. By law, custom, and/or delegation, they had policymaking authority over the actions of Cermak Health Services at the CCJ at issue in this case. Throughout their respective tenures as Director they have had responsibility for ensuring that the policies and practices of Cermak Health Services at the CCJ comply with federal and state requirements for the treatment of detainees. Throughout their respective tenures as Director, they implemented, enforced and/or condoned the use of procedures challenged in this case. They are sued in their official and individual capacities for the forced vaginal swabbing procedures at the CCJ.
20. Defendants LEONARD BERSKY and DAVID FAGUS have served as the Chief Operating Officer of Cermak Health Services of Cook County. In that capacity they were responsible, inter alia, for ensuring that the practices of Cermak Health Services complies with federal and state requirements for the treatment of detainees. Throughout their respective tenures as Director, they implemented, enforced and/or condoned the use of procedures challenged in this case. They are sued in their official and individual capacities for the forced swabbing procedure.
Facts Concerning the Named Plaintiffs 21. On the evening of January 13, 2005, Plaintiff YOUNG was driving to her cousin’s house in Chicago for a funeral. Her daughter, sister and granddaughters were in the car with her. 22. Police arrested her on a warrant that was issued after Plaintiff YOUNG had failed to appear on a traffic ticket. 23. The police took her to the CCJ where she was processed in accordance with the
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jail’s usual procedures. Ms. Young participated in the intake with approximately 30 other women.
24. First, the women were placed in a line and serially taken behind a partition. When Ms. Young’s turn came, she was ordered to remove all of her clothes and underwear, and was told to squat down in front of a guard. The guard then told her to cough. Ms. Young complied with all of the guard’s instructions. She was required to repeat this procedure three times before being allowed to dress again.
25. Later, the approximately 30 women were led to a hallway lined with chairs, where they were ordered to sit and wait. Periodically, a woman emerged from a room off the hallway to call numbers assigned to the detainees. When their numbers were called, the detainees were made to enter the room.
26. When the woman called Ms. Young’s number, she entered the room and was told to sit at one of three tables. A woman, who was dressed in street clothes drew two tubes of blood from Ms. Young’s arm. When Young asked the woman why her blood was being taken, the woman did not respond.
27. Ms. Young was then sent to sit in the hallway again. Approximately twenty minutes later, she was called back into the room, but this time she was led behind a partition. A woman ordered Young to remove her clothes again saying, “we’re going to examine you.” When Young asked what she was being examined for, the woman responded “just get on the table.” Young protested, telling the woman that she expected to be bonded out of the jail soon. Ms. Young was ordered to climb on to the examining table and place her feet in stirrups.
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28. The woman proceeded to perform a vaginal swab on Ms. Young which included inserting a speculum and other probes into Ms. Young’s vaginal cavity.
29. Ms. Young was never given any paper to read or sign before any of these procedures were performed on her, nor was she asked any questions about her medical status or history.
30. After the procedure, Ms. Young was instructed to return to the hall, where she waited while the other women underwent the same procedure.
31. At one point, while Ms. Young was sitting in the hallway, one of the female detainees demanded to know if the person drawing blood was licensed. When this person responded that she was not licensed, the woman refused to enter the room with her. The woman responded, “we’re going to show you,” or words to that effect. Soon guards arrived, physically abused the protesting detainee, and took her away.
32. Neither Ms. Young nor any of the other women in her presence were asked to consent to these procedures nor were the nature or purpose of the procedures explained to them.
33. On information and belief, the persons administering these procedures were employees or agents of the Cook County Department of Health and of Cermak Health Services.
34. On January 15th, approximately 36 hours after being arrested, Ms. Young was brought before a judge and was released from Cook County Jail. While being checked out of the jail, Ms. Young asked the woman processing her paperwork if she could see the results of the procedures. The woman laughed at this request, and said “you better get out of here now.”
35. On April 18, 2005, Plaintiff JOHNSON was booked into CCJ after having been charged with possession of a controlled substance, a false charge of which he was later acquitted.
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36. Mr. Johnson went through the intake process with approximately 100 other men. These men were all ordered into a crowded hallway and then instructed to strip naked as a group. They remained naked in each other’s presence for more than thirty minutes. The ventilation was insufficient and the air stank of body odor.
37. At one point they were told to face a wall, bend over, and spread their buttocks with their hands. They had to remain in that position as guards walked down the row visually inspecting them. Several of the guards made comments that the men were un-bathed and stank.
38. The following day, Mr. Johnson was released from CCJ and placed on home monitoring.
39. On December 30, 2005, Plaintiff William Jones was riding in a friend’s car when the friend was pulled over by Palatine police. Upon checking the identity of the vehicle’s occupants, the officers discovered an outstanding warrant for Mr. Jones, issued after he had failed to appear at a hearing regarding a traffic offense. They therefore arrested him.
40. The police took Mr. Jones to CCJ where he was processed in accordance with the jail’s usual procedures. Mr. Jones participated in the intake with approximately 100 other men.
41. These men were all ordered into a crowded hallway and then instructed to strip naked as a group. They remained naked in each other’s presence for approximately 40 minutes. There was no heat in the hallway, and the temperature felt to be less than 50 degrees Fahrenheit. Many of the men were shivering. In addition, the ventilation was insufficient and the air stank of body order.
42. At one point a guard told the men to put their head on one of the hallway walls, which were filthy, bend over, and spread their buttocks with their hands. They had to remain in
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that position as a guard walked down the row visually inspecting them. 43. During the 40 minute period, the guards repeatedly engaged in hazing behavior,
poking fun at the men and trying to “put them in their place” with teasing commands. Class Allegations
44. Cook County Jail is one of the largest detention centers in the world. Hundreds of men and women are brought into Cook County Jail each day, amounting to approximately 100,000 people per-year. Each person booked into Cook County Jail is subjected to the intake procedures described herein.
45. Named Plaintiffs YOUNG, JOHNSON, and JONES (the “Named Plaintiffs”) seek to pursue claims both for themselves and for a class of others similarly situated. Named Plaintiffs believe that the class should be organized into the following four subclasses.
46. Class I consists of: All women who have been subjected to vaginal swabbing in connection with the intake procedures at the Cook County Jail at anytime on or after January 30, 2004. Class I brings claims pursuant to the Fourth Amendment, the Due Process Clause and the Equal Protection Clause. Plaintiff YOUNG seeks to represent this class. 47. The individuals in Class I are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class I numbers in at least the thousands.
a. On information and belief, approximately 200,000 persons have been booked into the Cook County Jail during the Class Period. A substantial percentage of these persons are women;
b. On information and belief, all women booked into Cook County Jail during the Class Period have been subjected to the challenged swabbing procedure; and
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c. Ms. Young herself witnessed at least 30 women being subjected to the

procedure.

48. There are questions of law and fact common to the claims of Class I. Among

these common questions are:

a. Whether there is any legitimate purpose for subjecting the female

detainees to the swabbing procedure;

b . Whether there is any sufficient justification for continuing to subject

women to the swabbing procedure when the CCJ discontinued or curtailed subjecting men to the

equivalent procedure under equivalent circumstances;

c. Whether the use of the procedure and/or the way in which it is conducted

is an unreasonable search;

d. Whether the use of the procedure and/or the way in which it is conducted

violates the detainees’ rights under the Due Process Clause;

e. Whether the use of the procedure on women when the equivalent

procedure on men has been discontinued violates the women’s rights to Equal Protection;

f.

Whether Cook County maintains an express policy, custom, and/or

widespread practice requiring the swabbing procedure, and/or whether the procedure was

instituted by a policymaker(s) of Cook County, and/or whether the policymakers of Cook County

condoned or were deliberately indifferent to the use of the procedure;

g. Whether any of Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT,

MARTIN, ROTHSTEIN, WINSHIP, BERSKY and/or FAGUS failed in their supervisory

responsibilities to have terminated this procedure; and

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h. Whether the procedure violates the women’s rights under state law. 49. Plaintiff YOUNG’s claims are typical of the claims of Class I. Ms. Young was detained at the CCJ and was subjected to the swabbing procedure in accordance with the CCJ’s usual practices. She seeks to prove that the procedure violates the Fourth Amendment, the Due Process Clause and the Equal Protection Clause, as well as state law, and that each of the Defendants is liable. 50. Plaintiff Young will fairly and adequately represent the interests of Class I. She has retained skilled counsel with experience in constitutional and class action litigation to represent the Class. 51. The questions of law and fact common to Class I predominate over any individual issues. 52. Class II consists of: All men who have been subjected to a strip and visual body cavity search pursuant to the uniform intake search procedures at the Cook County Jail at anytime on or after January 30, 2004. Class II brings claims pursuant to the Fourth Amendment, the Due Process Clause and the Equal Protection Clause. Plaintiffs JOHNSON and JONES seek to represent this class. 53. The individuals in the Class II are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class II numbers in at least the thousands.
a. On information and belief, approximately 200,000 persons have been booked into the Cook County Jail during the Class Period. A substantial portion of the persons are male;
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b. On information and belief, each man booked into Cook County Jail during the Class Period has been subjected to the group strip and visual cavity search described herein;
c. Mr. Johnson himself witnessed approximately 100 men being subjected to the procedure; and
d. Mr. Jones himself witnessed approximately 100 men being subjected to the procedure.
54. There are questions of law and fact common to the claims of Class II. Among these common questions are:
a. Whether it is unreasonable to conduct group strip and visual body cavity searches of the men in a manner which violates the Fourth Amendment;
b. Whether the use of group strip and visual body cavity searches violates the men’s rights under the Due Process Clause;
c. Whether the use of a group strip and body cavity search procedure for men but not for women violates the Equal Protection Clause;
d. Whether Cook County maintains an express policy, custom and/or widespread practice requiring the group procedure for members of Class II, and/or whether the application of the procedure to members of Class II was instituted by a Cook County policymaker(s), and/or whether the policymakers of Cook County condoned or were deliberately indifferent to the use of the procedure on the members of Class II;
e. Whether any of Defendants SHEAHAN, BAIRD and/or KURTOVICH failed in their supervisory responsibilities to have avoided the use of a group strip and cavity search procedure for the members of Class II; and
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f. Whether the procedure violates the state law rights of the members of Class II.
55. Plaintiffs JOHNSON’s and JONES’ claims are typical of the claims of Class II. Both were booked into the CCJ and was subjected to the strip search and visual cavity search procedure in accordance with the CCJ’s usual practices for males. Both seek to prove that the procedure violates the Fourth Amendment, the Due Process Clause and the Equal Protection Clause as well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURTOVICH and BAIRD are liable as a result.
56. Plaintiffs JOHNSON and JONES will fairly and adequately represent the interests of Class II. They have retained skilled counsel with experience in constitutional and class action litigation to represent the Class.
57. The questions of law and fact common to the Class II predominate over any individual issues.
58. Class III consists of: All persons who were arrested on failure to appear or bench warrants for traffic or misdemeanor offenses and all persons arrested for traffic or misdemeanor offenses and who were subsequently subjected to a strip and/or visual cavity search at the Cook County Jail at anytime on or after January 30, 2004 pursuant to the uniform intake search procedures. Class III brings claims pursuant to the Fourth Amendment and the Due Process Clause. Plaintiffs YOUNG and JONES seek to represent this class. 59. The individuals in Class III are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class III numbers in at least the thousands.
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a. On information and belief, approximately 200,000 persons have been booked into the Cook County Jail during the Class Period;
b. On information and belief, each person booked into Cook County Jail during the Class Period has been subjected to the strip searches described herein;
c. Ms. Young herself witnessed at least 30 women being subjected to the procedure;
d. Mr. Johnson himself witnessed approximately 100 men being subjected to the procedure; and
e. Mr. Jones himself witnessed approximately 100 men being subjected to the procedure.
60. There are questions of law and fact common to the claims of Class III. Among these common questions are:
a. Whether there is any sufficient justification for subjecting the members of Class III to a blanket strip/visual cavity search procedure;
b. Whether the use of the procedure and/or the way in which it is conducted is an unreasonable search;
c. Whether the use of the procedure and/or the way in which it is conducted violates the detainees’ rights under the Due Process Clause;
d. Whether Cook County maintains an express policy, custom and/or widespread practice requiring the procedure for members of Class III, and/or whether the application of the procedure to members of Class III was instituted by a Cook County policymaker(s), and/or whether the
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policymakers of Cook County condoned or were deliberately indifferent to the use of the procedure on the members of Class III;
e. Whether any of Defendants SHEAHAN, KURTOVICH and/or BAIRD failed in their supervisory responsibilities to have avoided strip/visual cavity searching the members of Class III; and
f. Whether the procedure violates the state law rights of the members of Class III.
61. Plaintiffs YOUNG’s and JONES’ claims are typical of the claims of Class III. Both were arrested for a failure to appear for traffic offenses and both were then detained at the CCJ and subjected to a strip search procedure in accordance with the CCJ’s usual practices. Both seek to prove that the procedure violates the Fourth Amendment and the Due Process Clause, as well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURTOVICH and BAIRD are liable as a result.
62. Plaintiffs Young and Jones will fairly and adequately represent the interests of the Class III. They have retained skilled counsel with experience in constitutional and class action litigation to represent the Class.
63. The questions of law and fact common to the Class III predominate over any individual issues.
64. Class IV consists of: All persons who were arrested for non-drug-related offenses and who were subsequently subjected to a visual cavity search at the Cook County Jail at anytime on or after January 30, 2004 pursuant to the uniform intake search procedures. Class IV brings claims pursuant to the Fourth Amendment and the Due Process Clause.
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Plaintiffs YOUNG and JONES seek to represent this class. 65. The individuals in Class IV are so numerous that joinder of all members is
impractical. The Named Plaintiffs estimate that Class IV numbers in at least the thousands. a. On information and belief, approximately 200,000 persons have been
booked into the Cook County Jail during the Class Period; b. On information and belief, each person booked into Cook County Jail
during the Class Period has been subjected to the visual cavity searches described herein; c. Ms. Young herself witnessed at least 30 women being subjected to the
procedure; d. Mr. Johnson himself witnessed approximately 100 men being subjected to
the procedure; and e. Mr. Jones himself witnessed approximately 100 men being subjected to
the procedure. 66. There are questions of law and fact common to the claims of Class IV. Among
these common questions are: a. Whether there is any sufficient justification for a blanket procedure of
subjecting the members of Class IV to a visual cavity search; b. Whether the procedure is an unreasonable search; c. Whether the use of the procedure and/or the way in which it is conducted
violates the detainees’ rights under the Due Process Clause; d. Whether Cook County maintains an express policy or custom requiring
the procedure for members of Class IV, and/or whether the application of the procedure to
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members of Class IV was instituted by a Cook County policymaker(s), and/or whether the policymakers of Cook County condoned or were deliberately indifferent to the use of the procedure on the members of Class IV;
e. Whether any of Defendants SHEAHAN, KURTOVICH and/or BAIRD failed in their supervisory responsibilities to have avoided visual cavity searching the members of Class IV; and
f. Whether the procedure violates the state law rights of the members of Class IV.
67. Plaintiffs YOUNG’s and JONES’ claims are typical of the claims of Class IV. Both were arrested for non-drug-related offenses and both were subjected to the visual cavity search procedure in accordance with the CCJ’s usual practices. Both seek to prove that the procedure violates the Fourth Amendment and the Due Process Clause, as well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURTOVICH and BAIRD are liable as a result.
68. Plaintiffs Young and Jones will fairly and adequately represent the interests of the Class IV. They have retained skilled counsel with experience in constitutional and class action litigation to represent the Class.
69. The questions of law and fact common to the Class IV predominate over any individual issues.
Count I - Class I’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 70. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 71. There is no proper or sufficient need or justification for the vaginal swabbing
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procedure. 72. By instituting and continuing the vaginal swabbing procedures identified above,
Defendants have subjected Plaintiff YOUNG and the members of Class I to an unreasonable search in violation of the Fourth Amendment.
73. By instituting and continuing the vaginal swabbing procedures identified above, Defendants have subjected Plaintiff YOUNG and the members of Class I to punishment in violation of the Fourteenth Amendment.
74. By instituting and continuing the vaginal swabbing procedures identified above, Defendants have denied Plaintiff YOUNG and the members of Class I the right to select and control their own medical treatment including refusing treatment, all in violation of the Fourteenth Amendment.
75. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY and FAGUS had supervisory responsibility to have terminated the procedure and failed to do so.
WHEREFORE, Named Plaintiff YOUNG respectfully demands judgment on behalf of herself and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY and FAGUS. Named Plaintiff YOUNG further demands an award of punitive damages on behalf of herself and the class against Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP,
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BERSKY and FAGUS.
Count II - Class I’s claims pursuant to 42 U.S.C. §1983 for violations of the Equal Protection Clause
76. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 77. By continuing the blanket vaginal swabbing procedures identified above even after terminating or limiting the use of the equivalent procedure for males, Defendants have violated the right to equal protection of Plaintiff YOUNG and the members of Class I. 78. There is no proper or sufficient need or justification for discriminating between men and women with regard to the swabbing procedure. 79. The continuation of the procedure for women, and/or the failure to limit it in the same manner as for men, resulted from policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s). Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY and FAGUS, instituted and/or condoned the differential treatment, and/or failed in their supervisory responsibility to have terminated or limited the procedures as to women when those steps were taken for the men.
WHEREFORE, Named Plaintiff YOUNG respectfully demands judgment on behalf of herself and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY and FAGUS. Named Plaintiff YOUNG further demands an award of punitive damages on behalf of herself and the class against
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Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY and FAGUS.
Count III - Class II’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 80. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 81. There is no proper or sufficient justification for the use of a group strip and cavity search procedure, nor for the other aspects of the procedure including the amount of time for which the men must remain naked. 82. By instituting and continuing the group strip and cavity search procedures identified above, Defendants have subjected Plaintiffs JOHNSON and JONES and the members of Class II to an unreasonable search in violation of the Fourth Amendment. 83. By instituting and continuing the group strip and cavity search procedure and allowing it to be performed in the alleged manner Defendants have subjected Plaintiffs JOHNSON and JONES and the members of Class II to punishment in violation of the Fourteenth Amendment. 84. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD and KURTOVICH instituted, condoned, and/or failed in their supervisory responsibility to have terminated the procedure. WHEREFORE, Named Plaintiffs JOHNSON and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN,
22

Case 1:06-cv-00552 Document 34 Filed 03/31/2006 Page 23 of 27
BAIRD and KURTOVICH. Named Plaintiffs JOHNSON and JONES further demand an award of punitive damages on behalf of themselves and the class against Defendants SHEAHAN, BAIRD and KURTOVICH.
Count IV - Class II’s claims pursuant to 42 U.S.C. §1983 for violations of the Equal Protection Clause
85. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 86. By instituting and continuing the group strip and cavity search procedures identified above for men but using an individualized and private search for women, Defendants have violated the right to equal protection of Plaintiffs JOHNSON and JONES and the members of Class II. 87. There is no proper or sufficient need or justification for discriminating between men and women with regard to the searches. 88. The use and continuation of this discriminatory procedure resulted from policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s). Defendants SHEAHAN, BAIRD and KURTOVICH instituted, condoned, and/or failed in their supervisory responsibility to have terminated the procedure.
WHEREFORE, Named Plaintiff JOHNSON and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURTOVICH. Named Plaintiffs JOHNSON and JONES further demand an award of punitive damages for themselves and the Class against Defendants SHEAHAN, BAIRD and KURTOVICH.
23

Case 1:06-cv-00552 Document 34 Filed 03/31/2006 Page 24 of 27
Count V - Class III’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 89. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 90. There is no proper or sufficient need or justification for a blanket procedure of strip and/or visual cavity searching the members of Class III. 91. By instituting and continuing a blanket procedure of strip searching the members of Class III, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class III to an unreasonable search in violation of the Fourth Amendment. 92. By instituting and continuing a blanket procedure of strip searching the members of Class III, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class III to punishment in violation of the Fourteenth Amendment. 93. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD and KURTOVICH instituted, condoned, and/or failed in their supervisory responsibility to have terminated the procedure. WHEREFORE, Named Plaintiffs YOUNG and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURTOVICH. Named Plaintiffs YOUNG and JONES further demand an award of punitive damages on behalf of themselves and the class against Defendants SHEAHAN, BAIRD and KURTOVICH.
24

Case 1:06-cv-00552 Document 34 Filed 03/31/2006 Page 25 of 27
Count VI - Class IV’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 94. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 95. There is no proper or sufficient need or justification for a blanket procedure of performing visual cavity searches on the members of Class IV. 96. By instituting and continuing a blanket procedure of visual cavity searching the members of Class IV, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class IV to an unreasonable search in violation of the Fourth Amendment. 97. By instituting and continuing a blanket procedure of visual cavity searching the members of Class IV, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class IV to punishment in violation of the Fourteenth Amendment. 98. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD and KURTOVICH instituted, condoned, and/or failed in their supervisory responsibility to have terminated the procedure. WHEREFORE, Named Plaintiffs YOUNG and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURTOVICH. Named Plaintiffs YOUNG and JONES further demands an award of punitive damages on behalf of themselves and the class against Defendants SHEAHAN, BAIRD and KURTOVICH.
25

Case 1:06-cv-00552 Document 34 Filed 03/31/2006 Page 26 of 27
Count VII - State Law Claim: Respondeat Superior 99. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 100. By all of the above employees of Defendant Cook County subjected Named Plaintiffs YOUNG, JOHNSON and JONES, and the members of the Classes I-IV to the procedures described above, all of which procedures violate Illinois law. 101. These employees’ actions and omissions were taken within the scope of their employment for Cook County . 102. Plaintiffs YOUNG, JOHNSON and JONES and the members of the Classes I-IV have suffered damages as a result. WHEREFORE, Named Plaintiffs YOUNG, JOHNSON and JONES respectfully demand judgment on behalf of themselves and the Class Members, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendant COOK COUNTY.
Count VIII - State Law Claim: Indemnification 103. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 104. By all of the above Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY, FAGUS and/or other as yet unidentified Cook County employees subjected Named Plaintiffs YOUNG, JOHNSON and JONES, and the members of the Classes I-IV to the procedures described above. 105. These persons’ actions and omissions were taken within the scope of their employment for Cook County.
26

Case 1:06-cv-00552 Document 34 Filed 03/31/2006 Page 27 of 27
106. Defendant COOK COUNTY is therefore required to indemnify an judgment awarded in this case against Defendants SHEAHAN, BAIRD, KURTOVICH, SCOTT, MARTIN, ROTHSTEIN, WINSHIP, BERSKY, FAGUS and/or other as yet unidentified Cook County employees.
WHEREFORE, Named Plaintiffs YOUNG, JOHNSON and JONES respectfully demand judgment on behalf of themselves and the Class Members, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendant COOK COUNTY.
Jury Demand Named Plaintiffs YOUNG, JOHNSON and JONES respectfully demand judgment trial by jury on behalf of themselves and the Class Members on all issues so triable.
RESPECTFULLY SUBMITTED,

Arthur Loevy Michael Kanovitz Jon Loevy Samantha Liskow LOEVY & LOEVY 312 North May St.,Suite 100 Chicago, IL 60607 (312) 243-5900

/s/ Michael Kanovitz Attorneys for Plaintiffs
27

 
 Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 1 of 25

J-N F"IL..~
IN THE UNITED STATES DJSTRICT COURT

NORTHERN DJSTRICT OF ILLINOIS EASTERN DJVISION

KIM YOUNG and RONALD JOHNSON,

)

on behalf of themselves and a class of others

)

JAN 80 2.006 CLERMKIC, HUA.SELD~ DoBBINS
. TRICT COURT

similarly situated,

)
) JUDGE KENNELLY

Plainti 11;;,

)

v.

2 )

) )

N°:------OI-l-loo6.a---'C'----O·5-5

COUNTY OF COOK, MICHAEL SHEAHAN, )

individual1y and in his offlcial capacity as Sheriff )

of Cook County, CALLIE BAIRD, individually )

and in her official capacity as Jonncr Director of )

the Cook County Department of Correction~,

)

MAGI5TRAT~ JIJIDG!
GEI'IAUJiNii DeAT ~OWN

SCOTT KURDOVICH, individually and in his )

official capacity as Director ofthe Cook County )

Department of Corrections, STEVEN MARTIN, Jr.,)

individually and in his ollieial capacity as director )

of the Cook County Department of Public Health )

RUTH ROTHENSTEIN, individually and in her )

official capacity as former director of the Conk )

County Department of Public Health., and

)

T,EONARD R. BERSK Y, individual1y and in his )

otficial capacity as Chief Operating Officer of )

ermak Health Services of Cook County,

)

)

Defendants.

)

JURY TRJAL DEMANDED

COMPLAINT Named Plaintiffs KIM YOUNG and RONALD JOHNSON, on behalf of themselves and a class of others ~imilarly situated, through their allorncys, Loevy & Locvy, complaining of Defendants COUNTY OF COOK, MICHAEL SHEAHAN, individually and in his official capacity as Cook County Sheriff, CALLIE BAIRD, individually and in her official capacity as former Director ofthe Cook County Department of Corrections, SCOTT KURDOVICH, individually and in his official capacity as Director of the Cook County Department of

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 2 of 25

Corrections, RUTH ROTHENSTEIN, individually and in her official capacity as fonner Director

of the Cook County Department ofPuhlic Health, and STEVE MARTIN, individually and in his

official capacity as Director of the Cook County Department of Public Health, LEONARD R.

BRRSKY, individually and in his oOidal capacity as Chief Operating Officer ofCennak Health

Services of Cook County, state as follows:

Introduction

1. This is an action purS\llllJtto 42 U.S.C. § 1983 and state law challenging the use of

several unjustilied and sexually-intrusive search procedures on both men and women at the Cook

County Jail ("CC1").

2. First, the CCJ maintains a blanket policy requiring that all women placed in its

custody undergo a vaginal swabbing, a procedure which involves the insertion of a probe into the

vagina.

3.

There is no legitinlale purpose for subjecting detainees to this procedure. Rather,

as explained below, it is used only to humiliate and dehumanize the women detainees. Tellingly,

Delendants ceased perlbm1ing the equivalent procedure on male detainees several years ago,

after being sued be a male detainee in the case of Thompson v. County of Cook, 03-C-7I72.

4

Tn addition to lacking any legitimate purpose, the procedures are also perfonned in

a coercive and dehumanizing environment. The women are provided no explanation of what is

being done to them. Indeed, asking questions is treated as a form of recalcitrance which can

result in the use of physical force on the woman.

5. For example, Plaintiff YOUNG was processed into the eCJ as part of a group of

approximately 30 women, all of whom were required to undergo the vaginal swabbing. After it

2

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 3 of 25

became clear what was being done to the group, one of the women demanded to know if the

personnel performing the procedures were licensed. In response to her questions, several jail

guards assaulted this woman in front of the rest orthe group. Plaintiff herself asked what was

about to happen to her when she was ordered to place herself" on a table and put her legs in

stirrups. Her question met with silence and she had to participate without an explanation.

6

The CCl also requires both men and women to undergo strip and body cavity

searches when being processed into the jail. For men, the procedure requires that they strip

naked and line up facing a wall shoulder-to-shoulder with tens of other men (and sometimes

more than 100) who arc also being processed into the jail. The men are then instructed as a

group to bend over and spread their buttocks with their hands. All of the men must remain in

this position as guards walk down the row and visually inspects each man's anal cavjty. Often

men arc forced to stand naked amongst each other in close proximity fl.lr thirty-minutes or more.

7. Women are required to undergo a similar set of searches, but, at least, not in the

presence of other detainees. 'Jbe women must strip naked, bend over and assume a crouched

position. They are then instructed to cough several times as a guard or guards watch.

I;

These strip and visual body cavity searches arc conducted pursuant to a blanket

procedure that does not require any particularized suspicion that the detainee is concealing

anything in hisfher cavities. Moreover, the CCJ requires that these searches be conducted on all

detainees at the time they are first brought to the CC.J without regard to the nature of the crime

for which they are being held. In other words, a person arrested fi.1f a traffic-related misdemeanor

who has not yet been able to raise bail will be subjected to the same invasive search as someone

arrested /()r much more serious ofJenees.

3

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 4 of 25

9

There was no constitutional jus(iflca(ion for the CCJ to force PLAINTIFFS and

(he members of (he class to suhmit to these needlessly invasive searches or for forcing them to

undergo the procedures in such humilia(ing ways. Nevertheless, Cook County's policymakers,

including Defendant SHEAHAN, instituted these unconstitutional procedures and they have

turned a blind eye to the dehumani"ing way in which these searches are conducted.

1O. Indeed, individuals have sued previously over these practices, but the relatively-

small liability threatened hy these individual suits has not been sufficient to cause the

policymakers to implement refonns. Plain(ifTs bring this c1a~s action to compensate those who

have heen victimized by these sexually-invasive procedures and, hopefully, to bring change.

Jurisdiction and Venue

II. The Court has jurisdiction over this action pursuant to 28 U.S.c. §§ 1331, 1367 as

Plaintiffs asserts claims under federal law and the state law claims all arise out of the same facts

as the federal claims. Venue is proper under 28 U.S.C. § 1391(b) as Defendant, COUNTY OF

COOK, is physically situated in this judicial district, and the events giving rise to the claims in

this case all occurred here.

Parties

12. Nanled PlaintifT KIM YOUNG is 44 years old. She resides in the State of

Wisconsin. She is employed as a certified nurse assistant. She has three daughters.

13. Named PJain(ifTRONALD JOHNSON is 41 years old and resides in Flossmoor,

Illinois. He has a degree in business from Western lllinois University and is employed in auto

sales.

4

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 5 of 25
14. Defendant COUNTY OF COOK is a county of the State of Illinois. It oversees the Cook County Department of Corrections which in tum operates the Cook County Jail. It abo oversees the Cook County Department of Health with in turn operates Cennak Health Services.
15. Defendant MICHAEL SIIEAHAN is a resident of Cook County. Illinois. Throughout the class peri od, he has been the Sheri ff of Cook County. In that capacity he is in charge of the Cook County Department of Corrections and the Cook County Jail. By law, custom, and/or delegation, he has polieymaking authority over the jail for the actions at issue in this case. He is responsible for ensuring that the policies and practices of the CCJ comply with federal and state requirements for the treatment 0 f detainees. Throughout the class period, he ha~ had personal koowledge that the practices challenged in this case were occurring on a routine basis. He is sued in his official and individual capacities Cor the forced veginal swabbing procedures as well as illr the strip and cavity search procedures.
IIi. Defendants CALI.1E BAIRD and SCOTT KlJRDOVICH have served as the Director ofthe Cook County Department of Corrections during the class period. They are responsihle, inter alia, for ensuring that the practices of the CCJ comply with federal and state requirements for the treatment of detainees. TIrroughout their respective tenures as Director, they has had personal knowledge that the practices challenged in this case were occurring on a routine basis. TIley arc sued in their official and individual capacities for the forced vaginal swabbing procedures as well as for the strip and cavity search procedures.
17. Defendants RUTH ROTIIENSTEIN and STEVE MARTIN have served as the Director of the Cook County Department of Public Health. In that capacity they were in charge of the Cook County Department of Health of Cermak Health Services. By law, custom, and/or
5

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 6 of 25
delegation, they had policymaking authority over the actions of Cermak Health Services at the CCJ at issue in this case. They are responsible for ensuring that the policies and practices of Cermak Health Services at the CCJ comply with federal and state requirements for the treatment of detainees. Throughout tbeir respective tenures they had personal knowledge that employees of Cem1ak Health Services were performing the vaginal swabbing procedures challenged in this case were occurring on a routine basis. They are sued in their official and individual capacities for the forced vaginal swabbing procedures at the CCJ.
18. Delendant LEONARD R. BERSKY, is the Chief Operating Officer of Cermak Health Services of Cook County. He is responsible, inter alia, for ensuring that the practices of Cermak Health Services comply with federal and statc requirements for the treatment of detainees. Throughout his t",]jure as Director he has had personal knowledge that employees of CeTInak Health Services were performing the challenged vaginal swabbing procedure on a routine basis. lIe is sued in his oflicial and individual capacities for the f()rced swabbing procedure.
Facts Concerning the Named Plaintiffs 19. On the evening of January 13,2005, Plaintiff YOUNG was driving to her cousin's house in Chicago I\.)r a funeral. Her daughter, sister and granddaughters were in the car with her. 20. Chicago police arrested her 011 a warrant that was issued after Plaintiff YOUNG had failed to appear on a traffic ticket. 21. The police took her to the CCJ where she was processed in accordance with th", jail's usual procedures. Ms. Young participated in the intake with approximately 30 other women.
6

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 7 of 25
22. First, the women were placed in a line and ~erially taken behind a partition. When Ms. Young's tum came, she was ordered to remove all of her clothes and underwear, and was told to squat down in front of a guard. The guard then (old her to cough. Ms. Young complied with all of the guard's instructions. She was required to repeat (his procedure three times before being allowed to dress again.
23. J,aler, the approximately 30 women were led to a hallway lined with chairs, where they were ordered to sit and wait. Periodically, a woman emerged from a room ofT the hallway to call numbers assigned to the detainees. When (heir numbers were called, (he detainees were made to enter the room.
24. When the woman called M~. Young's number, she entered the room and was told to sit at one of three tables. A woman, who was dressed in street clothes drew two tubes of hlood from Ms. Young's arm. When Young asked the woman why her blood was being taken, the woman did not respond.
25. Ms. Young was then sent to ~it in the hallway again. Approximately twenty minute~ later, she wa~ called back into the room, but this time she was led behind a partition. A woman ordered Young to remove her clothes again saying, "we're going to examine you." When Young asked what she was being examined for, the woman responded "just gel on the table." Young protested, telling the woman that she expected to bc bonded (lut ofthejail ~oon. Ms. Young was ordered to climb on to the examining table and plaee her feet in stirrups.
26. The woman proceeded to perform a vaginal swab on Ms. Young which included inserting a speculum and other probes into Ms. Young's vaginal cavity.
7

=
Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 8 of 25
27_ Ms. Young was never given any paper to read or sign before any of these procedures were perfomled on her, nor was she asked any questions about her medical status or history.
28. After the procedure, Ms. Young was instructed to return to the hall, where she waited while the other women underwent the same procedure.
29. At one point, while Ms. Young was sitting in the hallway, one orthe female detainees demanded to know if the person drawing blood was licensed_ When this person responded that she was not licensed, the woman refused to enter the room with her. The woman responded, "we're going to show you." Soon guards arrived, physically abused the protesting detainee, and took her away.
30. Neither Ms_ Young nor any of the other women in her presence were asked to consent to these procedures nor were the nature or purpose of the procedures explained to them.
31. On infonnation and belief, the persons administering these procedures were employees or agcnts of the Cook County Department of Health and of CemJak Health Services.
32. On January 15th, approximately 36 hours aller being arrested, Ms. Young was brought heforc ajudge and was released from Cook County Jail. Whik being checked out of the jail, Ms. Young asked the woman processing her paperwork if she could see the results of the medical procedures. The woman laughed at this request, and said "you better get out of here
now."
33. On April J8,2005, Plaintiff JOHNSON was booked into CeJ after having been charged with possession of a controlled substance, a false charge of which he was later acquitted.
34. Mr. Johnson went through the intake process with approximately 100 other men.
8

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 9 of 25
These men were all ordered into a crowded hallway and then instrueted to strip naked as a group. They remained naked in eaeh other's presence flu more than thirty minutes. The ventilation was insufficient and the air stank of body oder.
35. At one point they were told to face a wall, bend over, and spread their buttocks with their hands. They had to remain in that position as guards walked down the row visually inspecting them. Several of the guards made comments that the men were un-bathed and stank.
36. The following day, Mr. Johnson was released from CCJ and placed on home monitoring.
Class Allegatiol1s 37. Cook County Jail is one of the largest detention centers in the world. Hundreds of men and women are brought into Cook County Jail each day, amounting to approximately 100,000 people per-year. Each person booked into Cook County Jail is subjected to the intake procedures described herein. 38. Named Plaintiffs YOUNG and JOHNSON (the "Named Plaintifls") seek to pursue claims both for themsclves and for a class of others similarly situated. Named Plaintiffs believe that the class should be organized into the following four subclasses. 39. Class I consists of: All women who have been subjected to vaginal swabbing in connection with the intake procedures at the Cook County Jail at anytime on or alter January 30. 2004. Class Tbrings claims pursuant to the Fourth Amendment, the Due Process Clause and the Equal Protection Clause. Plaintiff YOUNG seeks to represent this class. 40. The individuals in Class I are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class I numbers in at least the thousands.
9

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 10 of 25

a. On information and belief, approximately 200,000 persons have been

hooked into the Cook County Jail during the Class Period. A substantial percentage of these

persons are women;

h. On infomla1ion and be1ieJ~ all women booked into Cook County Jail

during the Class Period have been subjected to the challenged swabbing procedure; and

c. Ms. Young herse1fwitnessed at least 30 women heing suhjeeted to the

procedure.

41. There are questions of law and fact common to the claims of Class I. Among

these common questions are:

a. Whether there is any legitimate purpose for subjecting the female

dctainees to the swahhing procedure;

b . Whether there is any sufficient justification for continuing to subject

women to the swahhing procedure, when the ceJ discontinued subjecting men to the equivalent

procedure;

e. Whether the use of the procedure and/or the way in which it is conducted

IS an unreasonable search;

d. Whether the usc of the procedure and/or the way in which it is conducted

violates the detainees' rights under the Due Process Clause;

e. Whether the use of the proeedurc on women when the equivalent

procedure on men has heen discontinued violates the women's rights to Equal Protection;

r

Whether Cook County maintains an express policy or custom requiring

the swabbing procedure, and/or whether the procedure was instituted by a polieymaker(s) of

10

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 11 of 25
Cook County, and/or whether the policymakers of Cook County condoned or were deliberately indilTerent to the use of the procedure;
g. Whether any of Defendants SHEAHAN, BAIRD, KURDOVJCH, ROTIIENSTEIN, MARTIN, and/or BERSKY failed in their supervi~ory responsibilities to have tenninated this procedure; and
h. Whether the procedure violates the women's right~ under state law. 42. Plaintiff YOUNG's claims are typical of the claims of Class I. Ms. Young was detained at the CC.T and was subjected to the swabbing procedure in accordance with the ccrs usual practices. She seeks to prove that the procedure violates the Fourth Amendment, the Due Process Clause and the Equal Protection Clause, as well a~ state law, and that each of the Defendants is liable. 43. Plaintiff Young will fairly and adequately represent the interests of Class l. She has retained skilled counsel with experience in constitutional and class action litigation to represent the Class. 44. The quesiions oflaw and fact common to Class I predominate over any individual Issues. 45. Class II consists of: All men who have been subjected to a strip and visual body cavity search in connection with the intake procedures at the Cook County Jail at anytime on or after January 30, 2004. Class II brings claims pursuant to the Fourth Amendment, the Due Process Clause and the Equal Protection Clause. Plaintiff JOHNSON seeks to represent this class. 46. The individu.·ds in the Class II are so numerous thai joinder of all members is
11

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 12 of 25

impractical. The Named Plaintiffs estimate that Class II numbers in at least the thousands_

a. On infonnation and belief, approximately 200,000 persons have been

booked into the Cook County Jail during the Class Period. A substantial portion of the persons

arc male;

b. On infonnation and belief, eaeh man booked into Cook County Jail during

the Class Period has been subjected to th.e strip and visual body cavity search described herein;

e. Mr. Johnson himself witnessed approximately 100 men being subjected to

the procedure.

47. There are questions oflaw and fact common to the claims of Class II. Among

these common questions are:

a. Whether it is unreasonable to conduct group strip and visual hody cavity

searches of the men in a manner whieh violates the FOLLrth Amendment;

b. Whether the use of group strip and visual hody cavity searches violates the

mcn's rights under the Due Process Clause;

c_ Whether the use of a group strip and body cavity search procedure for men

but not fClr women violates the Equal Protection Clause;

d.

Whether Cook County maintains an express policy or custom requiring

the group procedure for memhers of Class II, and/or whether the application of the procedure to

members of Class II was instituted hy a Cook County polieymaker(s), and/or whether the

polieymakers of Cook County condoned Or were deliberately indifferent to the use of the

procedure on the members or Class II;

e. Whether any of Defendants SHEAHAN and/or BAIRD failed in their

12

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 13 of 25

supervisory responsibilities to have avoided the use of a group strip and eavity search procedure

for the members of Class II; and

f.

Whether the procedure violates the state Jaw rights of the members of

Class II.

48. Plain(i(TJOHNSON's claims are typical of the claims of Class II. Mr. JOHNSON was booked into the CCJ and was subjected to the strip search and visual ~avity search procedure
in accordance with the ccr s usual practices for males. He seeks to prove that the procedure

violates the Fourth Amendment, the Due Process Clause and the Equal Protection Clause as well

as state law, and that Defendants COOK COUNTY, SHEAlIAN, KlJRDOVICH and BAIRD are

liable as a result.

49. Plaintiff JOHNSON will fairly and adequately represent th.e interests of Class II.

lIe has retained skilled counsel with experience in constitutional and class aetionliligation to

represent the Class.

50. The qu~s1ions of law and fact common to the Class II predominate over any

individual issues.

51. Class III consists of:
All persons who w~re arrested on failure to appear warrants for trame or misdemeanor ufTenses and all persons arrested for traffic or misdemeanor offenses and who were subsequently subjected to a strip search at (he Cook County Jail at anytime on or after January 30, 2004.

Class III brings claims pursuant to the Fourth Amendment and the Due Process Clause. PlaintifT

YOUNG seeks to repr~sent this class.

52. The individuals jn Class 1II are so numerous that joinder of all members is impra~tical. The Nam~d Plaintiffs estimate that Class III numbers in at least the thousands.

13

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 14 of 25

a. On infonnation and belief, approximately 200,000 persons have been

booked into the Cook County Jail during the Class Period;

b. On infonnation and belief: each person booked into Cook COWlty Jail

during the Class Period has been subjected to the strip searches described herein;

c. Ms. YOWlg herself witnessed at least 30 women being subjected to the

procedure; and,

d. Mr. Johnson himself witnessed approximately 100 men being subjected to

the procedure.

53. There are questions oflaw and fact conunon to the claims of Class III. Among

these conunon questions arc:

a. Whether there is any sufficient justification for subjecting the members of

Class III to a blanket strip search procedure;

b. Whether the use of the procedure andlor the way in which it is conducted

IS an unreasonable search;

e. Whether the use of the procedure and/or the way in which it is conducted

violates the detainees' rights under the Due Process Clause;

d.

Whether Cook County maintains an express policy or custom requiring

the procedure for members of Class III, andlor whether the application of the procedure to

members of Class III was instituted by a Cook County policymaker(s), andlor whether the

policymakers of Cook County condoned Or were deliberately indifferent to the use of the

procedure on the members of Class III;

e. Whether any of DefendanlS SHEAHAN, KURDOVICII andlor BAIRD

14

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 15 of 25
failed in their ~upervisory responsibilities to have avoided strip searching the members of Class III; and
f. Whether the procedure violates the state law rights of the members of Class Ill.
54. Plaintiff YOUNG's claims are typical of the claims of Class Ill. Ms. Young was arrcsted ror a failure to appear for a tramc offense and she was then detained althe CCJ and was subjected to the strip search procedure in accordance with the ccrs usual practices. She seeks to prove thatlhe procedure violates the Fourth Amendment and the Due Process Clause, as well as state law, and that Derendants COOK COUNTY, SHEAHAN, KURDOVICH and BAIRD are liable as a result.
55. Plaintiff Young will fairly and adequatcly represent the interests of the Class Ill. She has retained skilled counsel with cxperience in constitutional and class ae1ion litigation to represent the Class.
56. 1he questions oj" law and fact common to the Class III predominate over any individual issues.
57. Class TV consists of: All persons who were arrested for non-drug-relatcd offenses and who were subsequently subjected to a visual cavity ,earch at the Cook County Jail at anytime on or after January 30, 2004. Class IV brings claims pursuant to the Fourth Amendment and the Due Process Clause. Plaintiff YOUNG seeks to represcnt this class. 58. The individuals in Class IV are so numerous that joinder of all members is imprae1ical. The Named Plaintirrs estimate that Class IV numbers in at least the thousands.
15

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 16 of 25

a. On infonnation and belief, approximately 200,000 persons have been

booked into the Cook County Jail during the Class Period;

b. On information and belief, eaeh person booked into Cook County Jail

during the Class Period has been subjected to the visual eavity searches described herein;

e. Ms. Young herself witnessed at leas( 30 women being subjected to the

proecdure; and,

d. Mr. Johnson himsel I' witnesscd approximately 100 mcn being subjected to

the procedure.

59. There are questions oflaw and fact common to (he claims of Class IV. Among

these common questions arc:

a. Whether there is any su(Iicient justification for a blanket procedure of

subjecting the members of Class IV (0 a visual cavity search;

b. Whether (he procedurc is an unreasonable search;

c. Whether the use of the proccdure and/or the way in which it is conducted

violates (he detainees' rights under the Due Process Clause;

d.

Whether Cook County maintains an express policy or custom requiring

the procedure for membcrs of Class IV, andlor whether the application of the proccdure to

mcmhers of Class IV was instituted by a Cook County polieymaker(s), and/or whether the

polic)1nakcrs of Cook County condoned or were deliherately indifferent to the use of the

procedure on the memhers or Class IV;

c. Whether any or Defendants SHEAHAN, KURDOVICH and/or BAIRD

failed in their supervisory responsibilities to have avoided strip searching the mcmhers or Class

16

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 17 of 25

IV; and

f.

Whether the procedure violates the state law rights of the members of

Class IV.

60. PlaintiffYOUNCi's claims are typical of the claims of Class IV. Ms. Young was

arrested for a failure to appear for a traffic offense and she was then detained at the CCl and was

subjected to the visual cavity search procedure in accordance with the ccrs usual practices. She

seeks to prove th..1.t the procedure violates the Fourth Amendment and the Due Process Clause, as

well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURDOVICH and

BAIRD are liable as a result.

61. PlaintitfYoung will fairly and adequately represent the interests of the Class IV.

She has retained skilled counsel with experience in constitutional and class action litigation to

represent the Class.

62. The questions of law and fact common to the Class IV predominate over any

individual issues.

Count I - Class l's claims pursuant to 42 U.S.c. §1983 for violations of the I<'ourth and Fourteenth Amendments 63. Plaintiffs re-allege each paragraph of (his Complaint as if fully stated herein. 64. There is no proper or sullicient need or justification fiJr the vaginal swabbing procedure. 65. By instituting and continuing (he vaginal swabbing procedures identified above, Defendants have subjected PJaintiffYOUNG and the members of Class I to an unreasonable search in violation of the Fourth Amendment.
17

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 18 of 25
66. By instituting and continuing the vaginal swabbing procedures identified above, Defendants have suhjected PlaintiiI YOUNG and the members of Class Ito punishment in violation ofthe Fourteenth Amendment.
67. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY had supervisory responsibility to have tenllinated the procedure and failed to do so.
WHEREFORE, Named Plaintiff YOUNG respectfully demands judgment on behalf of herself and the class, awarding costs, fees, attomeys fees, actual damages, and any other appropriate rcliefagainst Defendants COOK COUNTY, SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY. Named Plaintiff YOUNG further demands an award ofplmitive damages on behalfofherselfand the class against Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY.
Count II - Class l's claims pursuant to 42 U.S.c. §1983 for violations of the Equal Protection Clause
68. Plaintiffs re-allege each paragraph of this Complaint as iffully stated herein. 69. By continuing the vaginal swabbing procedures identifled above even alter terminating or substantially reducing the frequency of perfomling the equivalent procedure for males, Defendants have violated the right (0 equal protection of Plaintiff YOUNG and the members of Class 1. 70. There is no proper or sut13cient need or justification for discriminating between men and women with regard to th" swabbing procedure.
18

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 19 of 25
71. The continuation of the procedure a~ to the women resulted from policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s). Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTIIENSTEIN and BERSKY had supervisory responsibility to have terminated the procedure as to women when the procedure was terminated for the men and failed to do so.
WIlER EFORE. Named Plaintiff YOUNG respectfully demands judgment on behalf of herself and the class, awarding costs, fees, attomeys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY,SIIEAHAN, I3AIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY . Named Plainti IT YOUNG further demands an award of punitive damages on behalfof herself and the class against Defendants SHEAHAN, 13AIRD, KURDOVICI-I, MARTIN, ROTHENSTEIN and BfiRSKY _
Count III - Class II's claims pursuant to 42 U.S.c. §1983 for violations of the Fourth and Fourteenth Amendments 72. Plainti ffs re-allege each paragraph of this Complaint as if fully stated herein. 73 _ There is nO proper or suflleientjustification for the use of a group strip and cavity search procedure, nor for the other aspects of the procedure including the amount of time for which the men must remain naked. 74. By instituting and continuing the group strip and cavity search procedures identified above, Defendants have subjected PlaintilT JOHNSON and the members of Class "to an unreasonable search in violation ofthe Fourth Amendment. 75. By instituting and continuing the group procedure and allowing it to be perfomJed in the alleged manner Defendants have subjected PlaintiffJOHNSON and the
19

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 20 of 25
members of Class I to punishment in violation of the Fourteenth Amendment. 76. Policies, customs and/or widespread practices of Defendant COOK COUNTY,
and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD, KLJRDOVICH, MARTIN, ROTIIENSTEIN and BERSKY had supervisory responsibility to have tenninated the procedure and failed to do so.
WHEREFORE, Named Plaintiff JOIINSON respectfully demands judgment on behalf of himself and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD, KURDOVICII, MARTIN, ROTHENSTETN and BERSKY . Named Plaintiff YOUNG further demands an award of punitive damages on behalf of himself and the class against Defendants SHEAHAN, BAIRD, KIJRDOVICH, MARTIN, ROTHENSTEIN and BERSKY.
Count IV - Class II's claims pursuant to 42 U.S.C. §1983 for violations of the Equal Protection Clause
77. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. ?S. By instituting and continuing the group stip and eavity search procedures identified above for men but using an individualized and private search for women, Defendants
have violated the right to equal protection of Plaintiff JOHNSON and the members of Class n.
79. There is no proper or sufficient need or justification for discriminating between mcn and women with regard to the searches.
80. The use and continuation of this discriminatory procedure resulted from policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its polieymaker(s). Defcndants SHEAHAN, BAIRD, KURDOVICII, MARTIN,
20

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 21 of 25
ROTHENSTEIN and ilERSKY had supervisory responsibility to prevent this discrimination towards the men and failed to do so.
WHEREfORE, Named Plaintiff JOHNSON respectfully demands judgment on behalf of himself and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTIIENSTEIN and BERSKY. Named Plaintiff YOUNG further demands an award of punitive damages against Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTIIENSTEIN and BERSKY.
Count V - Class Ill's claims pursuant to 42 U.S.c. §1983 for violations of the Fourth and F'ourteenth Amendments 81. PiaintitTS re~allcge each paragraph of this Complaint as if fully stated herein. 82. There is no proper or sutlicient need or justification for a blanket procedure of strip searching the members of Class Ill. 83. By instituting and continuing a blanket procedure of strip searching the membcrs of Class 1Il, Defendants have subjected Plaintiff YOUNG and the members of Class III to an unreasonable search in violation of the Fourth Amendment. 84. By instituting and continuing a blanket procedure of strip searching the members of Class ill, Dcfcndants have subjcctcd Plaintiff YOUNG and the members of Class I to punishment in violation of the Fourteenth Amendment. 85. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations.
21

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 22 of 25
Defendants SHEAHAN, BAIRD, KlJRDOVICH, MARTIN, ROTHENSTEIN and DERSKY had supervisory responsibility to have terminated the procedure and failed to do so.
WHEREFORE, Named Plaintiff YOUNG respectfully demands judgment on beha'!f of herself and the class, awarding costs, fees, attomeys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, DA.lRD, KURDOVICII, MARTIN, ROTIIENSTEIN and BERSKY. Nanled PlaintifIYOUNG further demands an award of punitive damages on behalf of herself and the e1ass against Defendants SI IEAHAN, BAIRD, KURDOVICII, MARTIN, ROTHENSTEIN and BERSKY.
Count VI - Class IV's claims pursuant to 42 U.S.c. §1983 for violations of the Fourth and Fourteenth Amendments 86. Plaintiffs re-allege each paragraph of this Complaint as iffully stated herein. 87. There is no proper or sufficient need or justification f()r a hlanket procedure of performing visual cavity searches on the members of Class IV. 88. By instituting and continuing a hlanket procedure of visual cavity searching the
members of Class IV, Defendants have subjected PlaintifIYOUNG and the members or Class
IV to an unreasonahle search in violation of the Fourth Amendment. 89. Fly instituting and continuing a blanket procedure of visual cavity searching the
members of Class IV, Defcndants have subjected Plaintiff YOUNG and the members of Class IV to punishment in violation orthe Fourteenth Amendment.
90. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SIIEAIIAN, BAIRD, KURDOVIClI, MARTIN, ROTIIENSTEIN and BERSKY had
22

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 23 of 25
supervisory responsibility to have terminated the procedure and failed to do so. WHEREFORE, Named PlaintilTYOUNG respectfully demands judgment on
behalf of herself and the class, awarding costs, fees, attomeys fees, actual damages, and any other appropriate relief against Defendants COOK COlJNTy,sI-IEAHAN, BAIRD, KURDOVICH, MARTIN, ROTIIENSTEIN and BERSKY. Named Plaintiff YOUNG further demands an award of punitive damages on behalf of herself and the class against Defendants SHEAHAN, BAI RD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY.
Count VII - State Law Claim; Respondeat Superior 91. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 92. By all of the above employees of Defendant Cook County subjected Named PlaintiJf~ YOUNG and JOIINSON and the members ofthe Classes I-IV to the procedures described above, all of which procedures violate J11inois law. 93. These employees' actions and omissions were taken within the scope ofthcir employment for Cook County . 94. Plaintiffs YOUNG and JOIINSON and the members ofthe Classes I-IV have sujfered damages as a result. WHEREFORE, Nanled Plaintiffs YOUNG and JOHNSON respectfully demand judgment on behalf of themselves and the Class Members, awarding costs, fees, atlomeys fees, actual damages, and any other appropriate relief against Defendant COOK COUNTY,
23

Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 24 of 25
Count VIII - State Law Claim: Indemnification 95_ Plaintiffs re-allege each paragraph of this Complaint as iffully stated herein. 96. By all ofthe above Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN, BERSKY and/or other as yet unidentified Cook County employees subjected Named Plaintitfs YOUNG and JOI-INSON and the members of the Classes I-IV to the procedures described above. 97. These persons' actions and omissions were taken within the scope oftheir employment for Cook County. 98. Defendant COOK COUNTY is therefore required to indemnify an judgment awarded in this case against Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN, 13ERSKY and/or other as yet unidentified Cook County employees_
WHEREFORE, Named Plaintiffs YOUNG and JOHNSON respectfully demand judgment on behalf of themselves and the Class Members, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendant COOK COUNTY.
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Case 1:06-cv-00552 Document 1 Filed 01/30/2006 Page 25 of 25

.Jury Demand Named Plaintiffs YOUNG and JOHNSON respectfully demand judgment trial by jury on
behalf ofthemsc1ves and the Class Members on all issues so triable.

RESPECTFULLY SUBMITTED,

Arthur Loevy Michael Kanovitz Jon Loevy Samantha Liskow LOEVY & LOEVY 312 North May St.,suitc 100 Chicago, 1L 60607 (312) 243-5900

-~-
Attorneys for Plaintiffs

25

 
 Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 1 of 26

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

KIM YOUNG, RONALD JOHNSON, and

)

WILLIAM JONES, on behalf of themselves

)

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK, MICHAEL SHEAHAN, )

individually and in his official capacity as Sheriff )

of Cook County, CALLIE BAIRD, individually )

and in her official capacity as former Director of )

the Cook County Department of Corrections,

)

SCOTT KURDOVICH, individually and in his )

official capacity as Director of the Cook County )

Department of Corrections, STEVEN MARTIN, Jr.,)

individually and in his official capacity as director )

of the Cook County Department of Public Health )

RUTH ROTHENSTEIN, individually and in her )

official capacity as former director of the Cook )

County Department of Public Health, and

)

LEONARD R. BERSKY, individually and in his )

official capacity as Chief Operating Officer of )

ermak Health Services of Cook County,

)

)

Defendants.

)

No: 06-CV-552 JUDGE KENNELLY JURY TRIAL DEMANDED

AMENDED COMPLAINT Named Plaintiffs KIM YOUNG, RONALD JOHNSON and WILLIAM JONES,, on behalf of themselves and a class of others similarly situated, through their attorneys, Loevy & Loevy, complaining of Defendants COUNTY OF COOK, MICHAEL SHEAHAN, individually and in his official capacity as Cook County Sheriff, CALLIE BAIRD, individually and in her official capacity as former Director of the Cook County Department of Corrections, SCOTT KURDOVICH, individually and in his official capacity as Director of the Cook County

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 2 of 26

Department of Corrections, RUTH ROTHENSTEIN, individually and in her official capacity as

former Director of the Cook County Department of Public Health, and STEVE MARTIN,

individually and in his official capacity as Director of the Cook County Department of Public

Health, LEONARD R. BERSKY, individually and in his official capacity as Chief Operating

Officer of Cermak Health Services of Cook County, state as follows:

Introduction

1. This is an action pursuant to 42 U.S.C. § 1983 and state law challenging the use of

several unjustified and sexually-intrusive search procedures on both men and women at the Cook

County Jail (“CCJ”).

2. First, the CCJ maintains a blanket policy requiring that all women placed in its

custody undergo a vaginal swabbing, a procedure which involves the insertion of a probe into the

vagina.

3.

There is no legitimate purpose for subjecting detainees to this procedure. Rather,

as explained below, it is used only to humiliate and dehumanize the women detainees. Whiel

Defendants subject all women to this procedure upon their entry into Cook County Jail, it either

ceased performing, or significantly restricted the use of, the equivalent procedure on male

detainees several years ago, after being sued be a male detainee in the case of Thompson v.

County of Cook, 03-C-7172.

4 In addition to lacking any legitimate purpose, the procedures are also performed in

a coercive, unsanitary, and dehumanizing environment. The examiners often fail to change

gloves between procedures or otherwise follow usual precautions against the spread of infection.

Moreover, the women are provided no explanation of what is being done to them. Indeed, asking

2

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 3 of 26
questions is treated as a form of recalcitrance which can result in the use of physical force on the woman.
5. For example, Plaintiff YOUNG was processed into the CCJ as part of a group of approximately 30 women, all of whom were required to undergo the vaginal swabbing. After it became clear what was being done to the group, one of the women demanded to know if the personnel performing the procedures were licensed. In response to her questions, several jail guards assaulted this woman in front of the rest of the group. Plaintiff herself asked what was about to happen to her when she was ordered to place herself on a table and put her legs in stirrups. Her question met with silence and she had to participate without an explanation.
6 The CCJ also requires both men and women to undergo strip and body cavity searches when being processed into the jail. For men, the procedure requires that they strip naked and line up facing a wall shoulder-to-shoulder with tens of other men (and sometimes more than 100) who are also being processed into the jail. The men are then instructed as a group to bend over and spread their buttocks with their hands. All of the men must remain in this position as guards walk down the row and visually inspects each man’s anal cavity. Often men are forced to stand naked amongst each other in close proximity for thirty-minutes or more.
7. Women are required to undergo a similar set of searches, but, at least, not in the presence of other detainees. The women must strip naked, bend over and assume a crouched position. They are then instructed to cough several times as a guard or guards watch.
8 These strip and visual body cavity searches are conducted pursuant to a blanket procedure that does not require any particularized suspicion that the detainee is concealing anything in his/her cavities. Moreover, the CCJ requires that these searches be conducted on all
3

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 4 of 26
detainees at the time they are first brought to the CCJ without regard to the nature of the crime for which they are being held. In other words, a person arrested for a traffic-related misdemeanor who has not yet been able to raise bail will be subjected to the same invasive search as someone arrested for much more serious offences.
9 There was no constitutional justification for the CCJ to force PLAINTIFFS and the members of the class to submit to these needlessly invasive searches or for forcing them to undergo the procedures in such humiliating ways. Nevertheless, Cook County’s policymakers, including Defendant SHEAHAN, instituted these unconstitutional procedures and they have turned a blind eye to the dehumanizing way in which these searches are conducted.
10. Indeed, individuals have sued previously over these practices, but the relativelysmall liability threatened by these individual suits has not been sufficient to cause the policymakers to implement reforms. Plaintiffs bring this class action to compensate those who have been victimized by these sexually-invasive procedures and, hopefully, to bring change.
Jurisdiction and Venue 11. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1367 as Plaintiffs asserts claims under federal law and the state law claims all arise out of the same facts as the federal claims. Venue is proper under 28 U.S.C. § 1391(b) as Defendant, COUNTY OF COOK, is physically situated in this judicial district, and the events giving rise to the claims in this case all occurred here.
Parties 12. Named Plaintiff KIM YOUNG is 44 years old. She resides in the State of Wisconsin. She is employed as a certified nurse assistant. She has three daughters.
4

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 5 of 26
13. Named Plaintiff RONALD JOHNSON is 41 years old and resides in Flossmoor, Illinois. He has a degree in business from Western Illinois University and is employed in auto sales.
14. Names Plaintiff WILLIAM JONES is a 50 year-old Illinois resident. He works as an expediter at a manufacturing company.
15. Defendant COUNTY OF COOK is a county of the State of Illinois. It oversees the Cook County Department of Corrections which in turn operates the Cook County Jail. It also oversees the Cook County Department of Health with in turn operates Cermak Health Services.
16. Defendant MICHAEL SHEAHAN is a resident of Cook County, Illinois. Throughout the class period, he has been the Sheriff of Cook County. In that capacity he is in charge of the Cook County Department of Corrections and the Cook County Jail. By law, custom, and/or delegation, he has policymaking authority over the jail for the actions at issue in this case. He is responsible for ensuring that the policies and practices of the CCJ comply with federal and state requirements for the treatment of detainees. Throughout the class period, he has had personal knowledge that the practices challenged in this case were occurring on a routine basis. He is sued in his official and individual capacities for the forced veginal swabbing procedures as well as for the strip and cavity search procedures.
17. Defendants CALLIE BAIRD and SCOTT KURDOVICH have served as the Director of the Cook County Department of Corrections during the class period. They are responsible, inter alia, for ensuring that the practices of the CCJ comply with federal and state requirements for the treatment of detainees. Throughout their respective tenures as Director, they has had personal knowledge that the practices challenged in this case were occurring on a routine
5

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 6 of 26
basis. They are sued in their official and individual capacities for the forced vaginal swabbing procedures as well as for the strip and cavity search procedures.
18. Defendants RUTH ROTHENSTEIN and STEVE MARTIN have served as the Director of the Cook County Department of Public Health. In that capacity they were in charge of the Cook County Department of Health of Cermak Health Services. By law, custom, and/or delegation, they had policymaking authority over the actions of Cermak Health Services at the CCJ at issue in this case. They are responsible for ensuring that the policies and practices of Cermak Health Services at the CCJ comply with federal and state requirements for the treatment of detainees. Throughout their respective tenures they had personal knowledge that employees of Cermak Health Services were performing the vaginal swabbing procedures challenged in this case were occurring on a routine basis. They are sued in their official and individual capacities for the forced vaginal swabbing procedures at the CCJ.
19. Defendant LEONARD R. BERSKY, is the Chief Operating Officer of Cermak Health Services of Cook County. He is responsible, inter alia, for ensuring that the practices of Cermak Health Services comply with federal and state requirements for the treatment of detainees. Throughout his tenure as Director he has had personal knowledge that employees of Cermak Health Services were performing the challenged vaginal swabbing procedure on a routine basis. He is sued in his official and individual capacities for the forced swabbing procedure.
Facts Concerning the Named Plaintiffs 20. On the evening of January 13, 2005, Plaintiff YOUNG was driving to her cousin’s house in Chicago for a funeral. Her daughter, sister and granddaughters were in the car with her.
6

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 7 of 26
21. Chicago police arrested her on a warrant that was issued after Plaintiff YOUNG had failed to appear on a traffic ticket.
22. The police took her to the CCJ where she was processed in accordance with the jail’s usual procedures. Ms. Young participated in the intake with approximately 30 other women.
23. First, the women were placed in a line and serially taken behind a partition. When Ms. Young’s turn came, she was ordered to remove all of her clothes and underwear, and was told to squat down in front of a guard. The guard then told her to cough. Ms. Young complied with all of the guard’s instructions. She was required to repeat this procedure three times before being allowed to dress again.
24. Later, the approximately 30 women were led to a hallway lined with chairs, where they were ordered to sit and wait. Periodically, a woman emerged from a room off the hallway to call numbers assigned to the detainees. When their numbers were called, the detainees were made to enter the room.
25. When the woman called Ms. Young’s number, she entered the room and was told to sit at one of three tables. A woman, who was dressed in street clothes drew two tubes of blood from Ms. Young’s arm. When Young asked the woman why her blood was being taken, the woman did not respond.
26. Ms. Young was then sent to sit in the hallway again. Approximately twenty minutes later, she was called back into the room, but this time she was led behind a partition. A woman ordered Young to remove her clothes again saying, “we’re going to examine you.” When Young asked what she was being examined for, the woman responded “just get on the table.”
7

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 8 of 26
Young protested, telling the woman that she expected to be bonded out of the jail soon. Ms. Young was ordered to climb on to the examining table and place her feet in stirrups.
27. The woman proceeded to perform a vaginal swab on Ms. Young which included inserting a speculum and other probes into Ms. Young’s vaginal cavity.
28. Ms. Young was never given any paper to read or sign before any of these procedures were performed on her, nor was she asked any questions about her medical status or history.
29. After the procedure, Ms. Young was instructed to return to the hall, where she waited while the other women underwent the same procedure.
30. At one point, while Ms. Young was sitting in the hallway, one of the female detainees demanded to know if the person drawing blood was licensed. When this person responded that she was not licensed, the woman refused to enter the room with her. The woman responded, “we’re going to show you.” Soon guards arrived, physically abused the protesting detainee, and took her away.
31. Neither Ms. Young nor any of the other women in her presence were asked to consent to these procedures nor were the nature or purpose of the procedures explained to them.
32. On information and belief, the persons administering these procedures were employees or agents of the Cook County Department of Health and of Cermak Health Services.
33. On January 15th, approximately 36 hours after being arrested, Ms. Young was brought before a judge and was released from Cook County Jail. While being checked out of the jail, Ms. Young asked the woman processing her paperwork if she could see the results of the procedures. The woman laughed at this request, and said “you better get out of here now.”
8

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 9 of 26
34. On April 18, 2005, Plaintiff JOHNSON was booked into CCJ after having been charged with possession of a controlled substance, a false charge of which he was later acquitted.
35. Mr. Johnson went through the intake process with approximately 100 other men. These men were all ordered into a crowded hallway and then instructed to strip naked as a group. They remained naked in each other’s presence for more than thirty minutes. The ventilation was insufficient and the air stank of body oder.
36. At one point they were told to face a wall, bend over, and spread their buttocks with their hands. They had to remain in that position as guards walked down the row visually inspecting them. Several of the guards made comments that the men were un-bathed and stank.
37. The following day, Mr. Johnson was released from CCJ and placed on home monitoring.
38. On January 30, 2006, Plaintiff William Jones was riding in a friend’s car when the friend was pulled over by Palatine police. Upon checking the identity of the vehicles occupants, the officers discovered an outstanding warrant for Mr. Jones, issued after he had failed to appear at a hearing regarding a traffic offense. They therefore arrested him.
39. The police took Mr. Jones to CCJ where he was processed in accordance with the jail’s usual procedures. Mr. Jones participated in the intake with approximately 100 other men.
40. These men were all ordered into a crowded hallway and then instructed to strip naked as a group. They remained naked in each other’s presence for approximately 40 minutes. There was no heat in the hallway, and the temperature felt to be less than 50 degrees Fahrenheit. Many of the men were shivering. In addition, the ventilation was insufficient and the air stank of body oder.
9

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 10 of 26
41. At one point a guard told the men to put their head on one of the hallway walls, which were filthy, bend over, and spread their buttocks with their hands. They had to remain in that position as a guard walked down the row visually inspecting them.
42. During the 40 minute period, the guards repeatedly engaged in “hazing” behavior, poking fun at the men and trying to “put them in their place” with teasing commands.
Class Allegations 43. Cook County Jail is one of the largest detention centers in the world. Hundreds of men and women are brought into Cook County Jail each day, amounting to approximately 100,000 people per-year. Each person booked into Cook County Jail is subjected to the intake procedures described herein. 44. Named Plaintiffs YOUNG, JOHNSON and JONES (the “Named Plaintiffs”) seek to pursue claims both for themselves and for a class of others similarly situated. Named Plaintiffs believe that the class should be organized into the following four subclasses. 45. Class I consists of: All women who have been subjected to vaginal swabbing in connection with the intake procedures at the Cook County Jail at anytime on or after January 30, 2004. Class I brings claims pursuant to the Fourth Amendment, the Due Process Clause and the Equal Protection Clause. Plaintiff YOUNG seeks to represent this class. 46. The individuals in Class I are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class I numbers in at least the thousands.
a. On information and belief, approximately 200,000 persons have been booked into the Cook County Jail during the Class Period. A substantial percentage of these persons are women;
10

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 11 of 26

b. On information and belief, all women booked into Cook County Jail

during the Class Period have been subjected to the challenged swabbing procedure; and

c. Ms. Young herself witnessed at least 30 women being subjected to the

procedure.

47. There are questions of law and fact common to the claims of Class I. Among

these common questions are:

a. Whether there is any legitimate purpose for subjecting the female

detainees to the swabbing procedure;

b . Whether there is any sufficient justification for continuing to subject

women to the swabbing procedure, when the CCJ discontinued subjecting men to the equivalent

procedure;

c. Whether the use of the procedure and/or the way in which it is conducted

is an unreasonable search;

d. Whether the use of the procedure and/or the way in which it is conducted

violates the detainees’ rights under the Due Process Clause;

e. Whether the use of the procedure on women when the equivalent

procedure on men has been discontinued violates the women’s rights to Equal Protection;

f.

Whether Cook County maintains an express policy or custom requiring

the swabbing procedure, and/or whether the procedure was instituted by a policymaker(s) of

Cook County, and/or whether the policymakers of Cook County condoned or were deliberately

indifferent to the use of the procedure;

g. Whether any of Defendants SHEAHAN, BAIRD, KURDOVICH,

11

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 12 of 26
ROTHENSTEIN, MARTIN, and/or BERSKY failed in their supervisory responsibilities to have terminated this procedure; and
h. Whether the procedure violates the women’s rights under state law. 48. Plaintiff YOUNG’s claims are typical of the claims of Class I. Ms. Young was detained at the CCJ and was subjected to the swabbing procedure in accordance with the CCJ’s usual practices. She seeks to prove that the procedure violates the Fourth Amendment, the Due Process Clause and the Equal Protection Clause, as well as state law, and that each of the Defendants is liable. 49. Plaintiff Young will fairly and adequately represent the interests of Class I. She has retained skilled counsel with experience in constitutional and class action litigation to represent the Class. 50. The questions of law and fact common to Class I predominate over any individual issues. 51. Class II consists of: All men who have been subjected to a strip and visual body cavity search pursuant to the uniform intake search procedures at the Cook County Jail at anytime on or after January 30, 2004. Class II brings claims pursuant to the Fourth Amendment, the Due Process Clause and the Equal Protection Clause. Plaintiffs JOHNSON and JONES seek to represent this class. 52. The individuals in the Class II are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class II numbers in at least the thousands.
a. On information and belief, approximately 200,000 persons have been booked into the Cook County Jail during the Class Period. A substantial portion of the persons
12

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 13 of 26
are male; b. On information and belief, each man booked into Cook County Jail during
the Class Period has been subjected to the strip and visual body cavity search described herein; c. Mr. Johnson himself witnessed approximately 100 men being subjected to
the procedure; and d. Mr. Jones himself witnessed approximately 100 men being subjected to
the procedure. 53. There are questions of law and fact common to the claims of Class II. Among
these common questions are: a. Whether it is unreasonable to conduct group strip and visual body cavity
searches of the men in a manner which violates the Fourth Amendment; b. Whether the use of group strip and visual body cavity searches violates the
men’s rights under the Due Process Clause; c. Whether the use of a group strip and body cavity search procedure for men
but not for women violates the Equal Protection Clause; d. Whether Cook County maintains an express policy or custom requiring
the group procedure for members of Class II, and/or whether the application of the procedure to members of Class II was instituted by a Cook County policymaker(s), and/or whether the policymakers of Cook County condoned or were deliberately indifferent to the use of the procedure on the members of Class II;
e. Whether any of Defendants SHEAHAN and/or BAIRD failed in their supervisory responsibilities to have avoided the use of a group strip and cavity search procedure
13

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 14 of 26
for the members of Class II; and f. Whether the procedure violates the state law rights of the members of
Class II. 54. Plaintiffs JOHNSON’s and JONES’ claims are typical of the claims of Class II.
Both were booked into the CCJ and was subjected to the strip search and visual cavity search procedure in accordance with the CCJ’s usual practices for males. Both seek to prove that the procedure violates the Fourth Amendment, the Due Process Clause and the Equal Protection Clause as well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURDOVICH and BAIRD are liable as a result.
55. Plaintiffs JOHNSON and JONES will fairly and adequately represent the interests of Class II. They have retained skilled counsel with experience in constitutional and class action litigation to represent the Class.
56. The questions of law and fact common to the Class II predominate over any individual issues.
57. Class III consists of: All persons who were arrested on failure to appear or bench warrants for traffic or misdemeanor offenses and all persons arrested for traffic or misdemeanor offenses and who were subsequently subjected to a strip and/or visual cavity search at the Cook County Jail at anytime on or after January 30, 2004 pursuant to the uniform intake search procedures. Class III brings claims pursuant to the Fourth Amendment and the Due Process Clause. Plaintiffs YOUNG and JONES seek to represent this class. 58. The individuals in Class III are so numerous that joinder of all members is impractical. The Named Plaintiffs estimate that Class III numbers in at least the thousands.
14

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 15 of 26

a. On information and belief, approximately 200,000 persons have been

booked into the Cook County Jail during the Class Period;

b. On information and belief, each person booked into Cook County Jail

during the Class Period has been subjected to the strip searches described herein;

c. Ms. Young herself witnessed at least 30 women being subjected to the

procedure;

d. Mr. Johnson himself witnessed approximately 100 men being subjected to

the procedure; and

e. Mr. Jones himself witnessed approximately 100 men being subjected to

the procedure.

.

59. There are questions of law and fact common to the claims of Class III. Among

these common questions are:

a. Whether there is any sufficient justification for subjecting the members of

Class III to a blanket strip search procedure;

b. Whether the use of the procedure and/or the way in which it is conducted

is an unreasonable search;

c. Whether the use of the procedure and/or the way in which it is conducted

violates the detainees’ rights under the Due Process Clause;

d. Whether Cook County maintains an express policy or custom requiring

the procedure for members of Class III, and/or whether the application of the procedure to

members of Class III was instituted by a Cook County policymaker(s), and/or whether the

policymakers of Cook County condoned or were deliberately indifferent to the use of the

15

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 16 of 26
procedure on the members of Class III; e. Whether any of Defendants SHEAHAN, KURDOVICH and/or BAIRD
failed in their supervisory responsibilities to have avoided strip searching the members of Class III; and
f. Whether the procedure violates the state law rights of the members of Class III.
60. Plaintiffs YOUNG’s and JONES’ claims are typical of the claims of Class III. Both were arrested for a failure to appear for traffic offenses and both were then detained at the CCJ and subjected to a strip search procedure in accordance with the CCJ’s usual practices. Both seek to prove that the procedure violates the Fourth Amendment and the Due Process Clause, as well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURDOVICH and BAIRD are liable as a result.
61. Plaintiffs Young and Jones will fairly and adequately represent the interests of the Class III. They have retained skilled counsel with experience in constitutional and class action litigation to represent the Class.
62. The questions of law and fact common to the Class III predominate over any individual issues.
63. Class IV consists of: All persons who were arrested for non-drug-related offenses and who were subsequently subjected to a visual cavity search at the Cook County Jail at anytime on or after January 30, 2004 pursuant to the uniform intake search procedures. Class IV brings claims pursuant to the Fourth Amendment and the Due Process Clause. Plaintiffs YOUNG and JONES seek to represent this class.
16

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 17 of 26

64. The individuals in Class IV are so numerous that joinder of all members is

impractical. The Named Plaintiffs estimate that Class IV numbers in at least the thousands.

a. On information and belief, approximately 200,000 persons have been

booked into the Cook County Jail during the Class Period;

b. On information and belief, each person booked into Cook County Jail

during the Class Period has been subjected to the visual cavity searches described herein;

c. Ms. Young herself witnessed at least 30 women being subjected to the

procedure;

d. Mr. Johnson himself witnessed approximately 100 men being subjected to

the procedure; and

e. Mr. Jones himself witnessed approximately 100 men being subjected to

the procedure.

.

65. There are questions of law and fact common to the claims of Class IV. Among

these common questions are:

a. Whether there is any sufficient justification for a blanket procedure of

subjecting the members of Class IV to a visual cavity search;

b. Whether the procedure is an unreasonable search;

c. Whether the use of the procedure and/or the way in which it is conducted

violates the detainees’ rights under the Due Process Clause;

d. Whether Cook County maintains an express policy or custom requiring

the procedure for members of Class IV, and/or whether the application of the procedure to

members of Class IV was instituted by a Cook County policymaker(s), and/or whether the

17

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 18 of 26
policymakers of Cook County condoned or were deliberately indifferent to the use of the procedure on the members of Class IV;
e. Whether any of Defendants SHEAHAN, KURDOVICH and/or BAIRD failed in their supervisory responsibilities to have avoided strip searching the members of Class IV; and
f. Whether the procedure violates the state law rights of the members of Class IV.
66. Plaintiffs YOUNG’s and Jones’ claims are typical of the claims of Class IV. Both were arrested for a failure to appear for a traffic offense and she was then detained at the CCJ and both were subjected to the visual cavity search procedure in accordance with the CCJ’s usual practices. Both seek to prove that the procedure violates the Fourth Amendment and the Due Process Clause, as well as state law, and that Defendants COOK COUNTY, SHEAHAN, KURDOVICH and BAIRD are liable as a result.
67. Plaintiffs Young and Jones will fairly and adequately represent the interests of the Class IV. They have retained skilled counsel with experience in constitutional and class action litigation to represent the Class.
68. The questions of law and fact common to the Class IV predominate over any individual issues.
Count I - Class I’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 69. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 70. There is no proper or sufficient need or justification for the vaginal swabbing
18

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 19 of 26
procedure. 71. By instituting and continuing the vaginal swabbing procedures identified above,
Defendants have subjected Plaintiff YOUNG and the members of Class I to an unreasonable search in violation of the Fourth Amendment.
72. By instituting and continuing the vaginal swabbing procedures identified above, Defendants have subjected Plaintiff YOUNG and the members of Class I to punishment in violation of the Fourteenth Amendment.
73. By instituting and continuing the vaginal swabbing procedures identified above, Defendants have denied Plaintiff YOUNG and the members of Class I the right to select and control their own medical treatment including refusing treatment, all in violation of the Fourteenth Amendment.
74. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY had supervisory responsibility to have terminated the procedure and failed to do so.
WHEREFORE, Named Plaintiff YOUNG respectfully demands judgment on behalf of herself and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY. Named Plaintiff YOUNG further demands an award of punitive damages on behalf of herself and the class against Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY.
19

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 20 of 26
Count II - Class I’s claims pursuant to 42 U.S.C. §1983 for violations of the Equal Protection Clause
75. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 76. By continuing the blanket vaginal swabbing procedures identified above even after terminating or limiting the use of the equivalent procedure for males, Defendants have violated the right to equal protection of Plaintiff YOUNG and the members of Class I. 77. There is no proper or sufficient need or justification for discriminating between men and women with regard to the swabbing procedure. 78. The continuation of the procedure for women, and/or the failure to limit it in the same manner as for men, resulted from policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s). Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY had supervisory responsibility to have terminated the procedure as to women when the procedure was terminated for the men and failed to do so.
WHEREFORE, Named Plaintiff YOUNG respectfully demands judgment on behalf of herself and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY,SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY . Named Plaintiff YOUNG further demands an award of punitive damages on behalf of herself and the class against Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN and BERSKY .
20

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 21 of 26
Count III - Class II’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 79. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 80. There is no proper or sufficient justification for the use of a group strip and cavity search procedure, nor for the other aspects of the procedure including the amount of time for which the men must remain naked. 81. By instituting and continuing the group strip and cavity search procedures identified above, Defendants have subjected Plaintiffs JOHNSON and JONES and the members of Class II to an unreasonable search in violation of the Fourth Amendment. 82. By instituting and continuing the group strip and cavity search procedure and allowing it to be performed in the alleged manner Defendants have subjected Plaintiffs JOHNSON and JONES and the members of Class II to punishment in violation of the Fourteenth Amendment. 83. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD and KURDOVICH had supervisory responsibility to have terminated the procedure and failed to do so. WHEREFORE, Named Plaintiffs JOHNSON and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURDOVICH. Named Plaintiffs JOHNSON and JONES further demand an award of punitive damages on behalf of themselves and the class against Defendants SHEAHAN, BAIRD and KURDOVICH.
21

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 22 of 26
Count IV - Class II’s claims pursuant to 42 U.S.C. §1983 for violations of the Equal Protection Clause
84. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 85. By instituting and continuing the group strip and cavity search procedures identified above for men but using an individualized and private search for women, Defendants have violated the right to equal protection of Plaintiffs JOHNSON and JONES and the members of Class II. 86. There is no proper or sufficient need or justification for discriminating between men and women with regard to the searches. 87. The use and continuation of this discriminatory procedure resulted from policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s). Defendants SHEAHAN, BAIRD and KURDOVICH had supervisory responsibility to prevent this discrimination towards the men and failed to do so.
WHEREFORE, Named Plaintiff JOHNSON and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURDOVICH. Named Plaintiffs JOHNSON and JONES further demand an award of punitive damages for themselves and the Class against Defendants SHEAHAN, BAIRD and KURDOVICH.
22

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 23 of 26
Count V - Class III’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 88. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 89. There is no proper or sufficient need or justification for a blanket procedure of strip and/or visual cavity searching the members of Class III. 90. By instituting and continuing a blanket procedure of strip searching the members of Class III, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class III to an unreasonable search in violation of the Fourth Amendment. 91. By instituting and continuing a blanket procedure of strip searching the members of Class III, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class III to punishment in violation of the Fourteenth Amendment. 92. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD and KURDOVICH had supervisory responsibility to have terminated the procedure and failed to do so. WHEREFORE, Named Plaintiffs YOUNG and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURDOVICH. Named Plaintiffs YOUNG and JONES further demand an award of punitive damages on behalf of themselves and the class against Defendants SHEAHAN, BAIRD and KURDOVICH.
23

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 24 of 26
Count VI - Class IV’s claims pursuant to 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments 93. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 94. There is no proper or sufficient need or justification for a blanket procedure of performing visual cavity searches on the members of Class IV. 95. By instituting and continuing a blanket procedure of visual cavity searching the members of Class IV, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class IV to an unreasonable search in violation of the Fourth Amendment. 96. By instituting and continuing a blanket procedure of visual cavity searching the members of Class IV, Defendants have subjected Plaintiffs YOUNG and JONES and the members of Class IV to punishment in violation of the Fourteenth Amendment. 97. Policies, customs and/or widespread practices of Defendant COOK COUNTY, and/or the express decisions of its policymaker(s) are the moving force behind these violations. Defendants SHEAHAN, BAIRD and KURDOVICH had supervisory responsibility to have terminated the procedure and failed to do so. WHEREFORE, Named Plaintiffs YOUNG and JONES respectfully demand judgment on behalf of themselves and the class, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendants COOK COUNTY, SHEAHAN, BAIRD and KURDOVICH. Named Plaintiffs YOUNG and JONES further demands an award of punitive damages on behalf of themselves and the class against Defendants SHEAHAN, BAIRD and KURDOVICH.
24

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 25 of 26
Count VII - State Law Claim: Respondeat Superior 98. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 99. By all of the above employees of Defendant Cook County subjected Named Plaintiffs YOUNG, JOHNSON and JONES, and the members of the Classes I-IV to the procedures described above, all of which procedures violate Illinois law. 100. These employees’ actions and omissions were taken within the scope of their employment for Cook County . 101. Plaintiffs YOUNG, JOHNSON and JONES and the members of the Classes I-IV have suffered damages as a result. WHEREFORE, Named Plaintiffs YOUNG, JOHNSON and JONES respectfully demand judgment on behalf of themselves and the Class Members, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendant COOK COUNTY.
Count VIII - State Law Claim: Indemnification 102. Plaintiffs re-allege each paragraph of this Complaint as if fully stated herein. 103. By all of the above Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN, BERSKY and/or other as yet unidentified Cook County employees subjected Named Plaintiffs YOUNG, JOHNSON and JONES, and the members of the Classes I-IV to the procedures described above. 104. These persons’ actions and omissions were taken within the scope of their employment for Cook County.
25

Case 1:06-cv-00552 Document 16 Filed 02/27/2006 Page 26 of 26
105. Defendant COOK COUNTY is therefore required to indemnify an judgment awarded in this case against Defendants SHEAHAN, BAIRD, KURDOVICH, MARTIN, ROTHENSTEIN, BERSKY and/or other as yet unidentified Cook County employees.
WHEREFORE, Named Plaintiffs YOUNG, JOHNSON and JONES respectfully demand judgment on behalf of themselves and the Class Members, awarding costs, fees, attorneys fees, actual damages, and any other appropriate relief against Defendant COOK COUNTY.
Jury Demand Named Plaintiffs YOUNG, JOHNSON and JONES respectfully demand judgment trial by jury on behalf of themselves and the Class Members on all issues so triable.
RESPECTFULLY SUBMITTED,

Arthur Loevy Michael Kanovitz Jon Loevy Samantha Liskow LOEVY & LOEVY 312 North May St.,Suite 100 Chicago, IL 60607 (312) 243-5900

/s/ Michael Kanovitz Attorneys for Plaintiffs
26

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

KIM YOUNG, RONALD JOHNSON, and

)

WILLIAM JONES, on behalf of themselves )

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK, MICHAEL SHEAHAN, )

individually and in his official capacity as

)

Sheriff of Cook County, CALLIE BAIRD,

)

individually and in her official capacity as

)

former Director of the Cook County

)

Department of Corrections, SCOTT

)

KURTOVICH, individually and in his official )

capacity as Director of the Cook County

)

Department of Corrections, KAREN SCOTT, )

individually and in her official capacity as

)

former Chief Operating Officer of the Cook )

County Department of Public Health,

)

STEPHEN MARTIN, JR., individually and in )

his official capacity as Chief Operating Officer )

of the Cook County Department of Public

)

Health, RUTH ROTHSTEIN, individually and )

in her official capacity as former director of )

the Cook County Bureau of Health Services, )

DANIEL WINSHIP, individually and in his )

official capacity as director of the Cook County )

Bureau of Health Services, LEONARD

)

BERSKY, individually and in his official

)

capacity as former Chief Operating Officer of )

Cermak Health Services of Cook County, and )

DAVID FAGUS, individually and in his official )

capacity as Chief Operating Officer of

)

Cermak Health Services of Cook County,

)

)

Defendants.

)

No. 06 C 552

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Kim Young, Ronald Johnson, and William Jones have sued Cook County; three of its current employees, Stephen Martin, Jr., Daniel Winship, and David Fagus; three of its former employees, Karen Scott, Ruth Rothstein, and Leonard Bersky; Michael Sheahan, the Cook County Sheriff; and two of his current employees, Callie Baird and Scott Kurtovich.1 Plaintiffs bring their suit under 42 U.S.C. § 1983, alleging that the defendants violated their Fourth and Fourteenth Amendment rights while they were incarcerated in the Cook County Jail (CCJ). The Cook County defendants and the Sheriff defendants have filed separate motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court denies the Cook County defendants’ motion in part and grants it in part and denies the Sheriff defendants’ motion.
Facts
According to plaintiffs’ second amended complaint, Sheriff Sheahan and two of his high level staff members, Callie Baird and Scott Kurtovich, have “implemented, enforced, and/or condoned” a policy of strip searching every inmate that enters the CCJ. Second Am. Compl. ¶¶ 16-17. This policy allegedly continues despite the fact that for more than twenty years, numerous courts – including the Seventh Circuit – have held that suspicionless strip searches of detainees accused of minor offenses are unconstitutional.2 Plaintiffs also allege that the
1 Cook County and its former and current employees are collectively referred to as the “Cook County defendants.” Sheahan and his employees are collectively referred to as the “Sheriff defendants.”
2 See, e.g., Shain v. Ellison, 273 F.3d 56, 64-66 (2d Cir. 2001); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001); Roberts v. Rhode Island, 239 F.3d 107, 111 (1st Cir. 2001); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983); Tinetti v. Wittke, 620 F.2d 160, 161 (7th Cir. 1980); Calvin v. Sheriff of Will County, 405 F. Supp. 2d 933, 942 (N.D. Ill. 2005).
2

individual defendants have “implemented, enforced, or condoned” a policy requiring all female inmates to undergo unconsented sexual transmitted disease (STD) testing. Id. ¶¶ 16-20.
Young claims that on January 13, 2005, she was arrested on an outstanding traffic warrant and taken to the CCJ. Shortly after arriving there, a female guard made her stand behind a partition, take her clothes off, squat down, and cough. Young put her clothes back on, and the guard led her, along with thirty other women, to a hallway lined with chairs. There, the women waited while they took turns going into a small room for STD testing. When Young’s name was called, she entered the room, and a woman ordered her to remove her clothes a second time. Young asked why she was being examined, but the woman simply instructed her to “get on the table.” Young followed the woman’s order and put her feet in stirrups. The woman then inserted a probe into Young’s vaginal cavity. Young claims that she did not consent to the strip search or the STD testing.
Johnson claims that on April 18, 2005, he was arrested for felony possession of a controlled substance.3 Shortly after he was booked in the CCJ, guards ordered him and onehundred other men to strip naked in a hallway. The guards then instructed them to face a wall, bend over, and spread their buttocks with their hands, as the guards proceeded to visually inspect them. The men remained naked in each other’s presence for more than thirty minutes, during which time the guards made comments that the men were unbathed and stank. The hallway was poorly ventilated, and the air reeked of body odor.
Plaintiff Jones claims that on December 30, 2005, he was arrested on an outstanding traffic warrant. Shortly after he was booked in the CCJ, he, like Johnson, was strip searched in a
3 Johnson claims that he was not convicted of these charges. 3

hallway along with one-hundred other men. There was no heat in the hallway, and the temperature felt like it was less than fifty degrees Fahrenheit. The men were shivering during the approximately forty minute period they remained in the hallway. The hallway was poorly ventilated, and the air reeked of body odor. Jones alleges that the guards repeatedly poked fun at the men.
In Count 1, plaintiffs allege that the vaginal swabbing procedure performed on Young violated the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment.4 In Count 2, they allege that the vaginal swabbing procedure performed on Young violated the Equal Protection Clause of the Fourteenth Amendment. In Count 3, plaintiffs allege that the strip searches performed on Johnson and Jones violated the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. In Count 4, plaintiffs allege that because jail officials strip searched Johnson and Jones in a group setting, but did not perform strip searches on similarly situated females in a group setting, the searches of the men violated the Equal Protection Clause of the Fourteenth Amendment. In Counts 5 and 6, plaintiffs allege that the strip searches performed on Jones and Young violated the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. Count 7 is a state law claim for respondeat superior liability against Cook County. Count 8 is a state law claim of indemnification against Cook County.
Discussion When considering a motion to dismiss, the Court reads the complaint liberally, granting
4 Plaintiff’s second amended complaint makes class-wide allegations, though the case has not yet been certified as a class action. For this reason, we recite the allegations of each count of the complaint as they pertain to each named plaintiff.
4

the motion only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that entitles him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We accept the allegations in the complaint as true and draw reasonable inferences in the plaintiff’s favor. Cler v. Ill. Educ. Ass’n, 423 F.3d 726, 729 (7th Cir. 2005). Under federal pleading rules, a complaint “need not set out legal theories or comprehensive factual narratives.” See, e.g., Rapid Test Prods., Inc. v. Durham School Svcs., Inc., No. 05-4066, — F.3d — , 2006 WL 2382430, at *2 (7th Cir. Aug. 18, 2006).
Together, the defendants’ motions propose seven different reasons for partial or complete dismissal of plaintiffs’ claims. We consider each argument in turn.
1. The individual defendants’ involvement The individual defendants (those other than Cook County) argue that the complaint fails to allege that they were personally involved in the claimed constitutional violations. An individual cannot be held liable under 42 U.S.C. § 1983 unless he caused or participated in an alleged constitutional deprivation. See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). Supervisors may not be held liable under this statute for negligently failing to prevent an employee from engaging in prohibited conduct. See Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997). Rather, “‘supervisors 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. (quoting Jones v. City of Chicago, 865 F.2d 985, 992-93 (7th Cir. 1988)). Plaintiffs sufficiently allege that the individual defendants were personally involved in the alleged constitutional violations. Specifically, they allege that the defendants “implemented, enforced, or condoned” the strip search and vaginal swabbing procedures at the CCJ. Second
5

Am. Compl. ¶¶ 16-20. In other words, they are claimed to have had knowledge that guards were performing strip searches and STD testing on all new detainees but failed to intervene. These allegations are sufficient to withstand a motion to dismiss. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (denying defendant’s motion for summary judgment because plaintiff offered evidence that the defendant knew that guards were denying the plaintiff constitutionally required writing materials but failed to intervene).
The individual Cook County defendants have also moved to dismiss the claims made against them in their official capacity, arguing these claims are redundant of the claims asserted against Cook County. See DeGenova v. Sheriff of DuPage County, 209 F.3d 973, 975 (7th Cir. 2000) (“An official capacity suit is the same as a suit against the entity of which the officer is an agent.”). Because the plaintiffs do not respond to this argument, they are deemed to have conceded the point. Accordingly, the Court dismisses the official capacity claims against Martin, Jr., Winship, Fagus, Scott, Rothstein, and Bersky.
2. Unwanted medical testing under the Fourth and Fourteenth Amendments The Cook County defendants argue that the Court should dismiss Count 1 of the second amended complaint because the vaginal swabbing procedure, as alleged, did not violate Young’s Fourth or Fourteenth Amendment rights. Defendants do not dispute that the vaginal swabbing procedure – if Young did not consent to it – constitutes unwanted medical treatment. Nor do defendants deny that Young has a Fourteenth Amendment liberty interest in refusing unwanted medical treatment. See Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278 (1990). Rather, defendants argue that they cannot be held liable for the test because if it was performed without Young’s consent, they were merely negligent in not recognizing the involuntary nature
6

of the procedure. They point out that allegations of negligence ordinarily are not enough to establish liability under § 1983. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
Young has alleged that the CCJ has a policy of requiring “all women” to undergo the vaginal swabbing procedure and that the circumstances of the swabbing procedure are “coercive.” Second Am. Compl. ¶ 2. She also claims that if an inmate refuses or asks a question about the procedure, the guards may use physical force on her or instruct her to perform the procedure without answering her question. See id. ¶¶ 4-5. Finally, Young has alleged that the defendants “implemented, enforced, or condoned the use of procedures challenged in this case.” Id. ¶¶ 16-20. If Young proved that the defendants implemented or condoned a policy requiring each female inmate to undergo a vaginal swabbing procedure whether she consented or not, a jury reasonably could find the defendants were more than negligent in recognizing that the testing violated the inmates’ Fourteenth Amendment rights. Indeed, these allegations, if taken as true (as the Court must do at this stage of the case), suggest that the defendants knowingly implemented or condoned a policy of coercing women to take the test or, worse, of forcing women to take the test despite their outright refusal.
The Cook County defendants also argue that the swabbing procedure does not violate the Fourth Amendment because it is not a search. As far as the Court can ascertain, it is an open question whether the Fourth Amendment’s prohibition against unreasonable searches applies to medical procedures, executed by government actors, that are unrelated to evidence gathering. At least one court has said that the Fourth Amendment applies only to conduct “motivated by some sort of investigatory or administrative purpose designed to elicit a benefit for the government.” United States v. Attson, 900 F.2d 1427, 1430 (9th Cir. 1990). It does not appear, however, that
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either the Supreme Court or Seventh Circuit have spoken directly on the issue.5 Regardless, we need not delve into this issue on a motion to dismiss, having already concluded that Count 1 states a claim under the Fourteenth Amendment. First, allowing the Fourth Amendment claim to go forward does not substantially alter the scope of discovery, if at all. Second, if, as Attson suggests, the resolution of this issue turns on the government’s motivation for performing the alleged procedure, then it is impossible at this stage of the litigation to determine what that motivation may have been. For these reasons, Count 1 states a claim for which relief may be granted, and the Court declines to dismiss Young’s Fourth Amendment claim.
3. Cook County’s control over the Sheriff Cook County argues that it cannot be held liable for the acts of the Sheriff because the Sheriff “is an independently elected constitutional officer who answers to the electorate, not the County government.” See County Mem. at 17-18. Cook County cites Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989), for the proposition that it cannot be held vicariously liable for the acts of the Sheriff. It ignores, however, the Seventh Circuit’s more recent pronouncement on the issue, which holds that in Illinois, the county is a necessary party to a suit for damages against the sheriff. See Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003) (“[A] county in Illinois is a necessary party in any suit seeking damages from an independently elected county officer (sheriff, assessor, clerk of court, and so on) in an official capacity.”); see also Robinson v. Sappington, 351 F.3d 317, 338-39 (7th Cir. 2003) (rejecting Macon County’s
5 In Sullivan v. Bornemann, 384 F.3d 372, 377 (7th Cir. 2004), the court held that the Fourth Amendment does not prohibit a police officer from briefly restraining a detainee at the direction of qualified medical personnel for the purpose of benefitting the detainee’s own health. The case does not address, however, whether the Fourth Amendment applies to the medical procedure itself.
8

argument that it should be dismissed from the plaintiff’s lawsuit alleging that her employer, a circuit court judge, sexually harrassed her, because Macon County would be required to pay any judgment).
4. Strip search performed on Johnson The Sheriff defendants argue that the Court should dismiss Johnson’s Fourth Amendment claim because a number of courts have held that jail officials may strip search detainees accused of felonies or drug crimes.6 See, e.g., Dufrin v. Spreen, 712 F.2d 1084, 1089 (6th Cir. 1983) (holding that a strip search of a detainee accused of felonious assault does not violate the Fourth Amendment); Doe v. Berberich, 704 F. Supp. 269, 272 (D.D.C. 1988) (holding that a strip search of a detainee accused of misdemeanor possession of marijuana does not violate the Fourth Amendment). The problem with the cases that the defendants cite, however, is that Johnson does not dispute that a policy of strip searching accused felons is legal when the search is conducted in a reasonable manner. Rather, he contends that jail officials searched him in a fashion that was unnecessarily abusive and humiliating. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court said that the test of reasonableness under the Fourth Amendment involves the consideration of four different factors: the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559. Examining these factors in the context of strip searches conducted after contact visits on pretrial detainees accused of serious
6 The Sheriff defendants have also moved to dismiss the plaintiffs’ class allegations, arguing that the proposed classes include accused felons who can lawfully be strip searched during the booking process. The Court declines to address the propriety of the alleged classes, however, because this objection is premature. The plaintiffs have not yet filed a motion for class certification.
9

felonies, the Court said that “[a] detention facility is a unique place fraught with serious security dangers” and that smuggling of contraband is a real and serious concern for jail administrators. Id. Though recognizing as well the significant invasion of privacy that strip searches entail, the Court held that post-contact visit strip searches did not violate the Fourth Amendment. Id. at 560. The Court cautioned, however, that searches carried out in an abusive fashion cannot be tolerated. Id.
In this case, we recognize that the scope of a strip search necessarily compromises a particularly serious privacy interest. As for the second and fourth Bell factors, Johnson’s complaint alleges a number of facts that suggest unreasonableness: the use of threatening or harassing language, see Evans v. Stephens, 407 F.3d 1272, 1281 (11th Cir. 2005), the lack of privacy, including the fact that many others could see Johnson’s naked body, see Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001); Del Raine v. Williford, 32 F.3d 1024, 1040 (7th Cir. 1994), the significant amount of time it took to complete the search, and the fact that the search took place in a crowded, odorous, poorly-ventilated hallway.
Balanced against these factors is the government’s justification for initiating the search. The defendants, citing a report from the John Howard Association, assert that the strip searches are justified to combat “serious security dangers” at the CCJ. See Sheriff Mem. at 10. The Court is not permitted, however, to consider these reports on a motion to dismiss for failure to state a claim. Even if we were, Johnson specifically alleges that the Sheriff did not have sufficient justification for the strip search procedures. See Second Am. Compl. ¶ 81. Taking these allegations as true and balancing them with the facts relevant to our consideration of the other three Bell factors, Johnson’s strip search allegations state a claim on which relief may be
10

granted. In short, without the benefit of evidence concerning the Sheriff’s need to conduct strip searches in the manner performed, the Court cannot determine whether the search performed on Johnson was conducted in a reasonable fashion. For these reasons, Johnson’s strip search allegations state a claim on which relief may be granted.
5. Finding of probable cause to arrest The Sheriff defendants also argue that the Court should dismiss the defendants Fourth Amendment claims because each pretrial detainee arrives at the CCJ after a judicial officer has found that probable cause exists to arrest and detain that individual. The Sheriff defendants contend that reasonable suspicion to strip search the detainee is inherent in a judge’s probable cause finding. The Court rejects the argument. We fail to see how a finding of probable cause to arrest suggests reasonable suspicion that an individual is concealing contraband, particularly where the relevant finding is that an individual has allegedly committed a non-violent, non-drug related misdemeanor or has failed to appear for a hearing in traffic court. See Shain v. Ellison, 273 F.3d 56, 65 (2d Cir. 2001) (holding that arraignment of person accused of misdemeanor does not suggest that the person is concealing contraband or weapons). 6. The Duran consent decree The Sheriff defendants next argue that the Court should dismiss this case in its entirety because it is barred by the doctrine of issue preclusion. They state that “the issue of living conditions and treatment of pretrial detainees at the Cook County Jail was decided by the district court in Duran [v. Sheahan, Case No.74 C 2949].” Sheriff Mem. at 13. This argument is lacking in merit for several reasons. First, as the Sheriff defendants themselves note, issue preclusion “generally prevents a
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party from relitigating an issue that has already been litigated.” Id. (citing Appley v. West, 832 F.2d 1021, 1025 (7th Cir. 1987)). Duran, however, was resolved not by way of litigation and decision, but by a consent decree – a negotiated resolution approved by the presiding judge. Because the issues underlying consent judgments ordinarily are not actually litigated, such judgments normally do not support issue preclusion. Arizona v. California, 530 U.S. 392, 41415 (2000); La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir. 1990).
Second, the Sheriff defendants’ contention that the particular issues involved in the present case were also at issue in Duran is utterly unsupported and borders on the frivolous. Their argument is that because Duran concerned “the treatment and living conditions of pretrial detainees,” it necessarily included the intake procedures at issue in this case. Sheriff Mem. at 14. This argument completely misunderstands the doctrine of issue preclusion, which requires the idenitical issue involved in the current suit to have been actually litigated, decided by a court on the merits, and necessary to the court’s judgment. See Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995). The Sheriff defendants have not even attempted to show that strip searching of detainees at intake or vaginal swabbing of female detainees was so much as discussed with the court prior to its approval of the Duran decree, let alone that those issues were disputed, litigated, or decided.
In any event, though it is true that Duran is claim-preclusive as to all pretrial detainees in the CCJ, including current detainees, see Martin v. Davies, 917 F.2d 336, 339 (7th Cir. 1990), it bars only claims by detainees for equitable relief that was sought in Duran. Id. at 340. The Sheriff defendants argue only issue preclusion, not claim preclusion, but we address the issue of
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claim preclusion to avoid the need to deal with it as the case progresses. The Duran decree addresses overcrowding, food quality, personal hygiene, visiting privileges, law library access, and detainee exercise. See Duran v. Elrod, 760 F.2d 756,760 (7th Cir. 1985). The Sheriff defendants have not pointed to any part of the Duran consent decree that addresses anything like the intake strip search and vaginal swabbing procedures that are at issue in this case. As a result, Duran does not preclude the present plaintiffs’ claims for injunctive relief – if they are actually making such claims, which is not entirely clear. See Richardson v. Ala. State Bd. of Educ., 935 F.2d 1240, 1245-46 (11th Cir. 1991) (holding that application of claim preclusion and issue preclusion doctrines was improper where consent decree addressed the discriminatory nature of a teacher certification test and second suit addressed the non-renewal of teacher contracts); New Orleans Steamship Ass’n v. EEOC, 680 F.2d 23, 25-26 (5th Cir. 1982) (holding that application of claim preclusion was improper where consent decree addressed racially discriminatory testing techniques and second suit addressed an allegedly discriminatory ranking procedure applied to those who had achieved a passing score on the test). In addition, the Seventh Circuit has made it clear that Duran has no claim-preclusive effect as to later claims for damages. See Martin, 917 F.2d at 340.
Finally, defendants suggest that the Court should transfer this case to our colleague, the Honorable George M. Marovich, who presides over the Duran case. Defendants have provided no basis to grant such a request. There is no question that Judge Marovich’s supervision of the Duran consent decree requires him to have intimate knowledge of the workings of the jail and other related issues. But that does not mean that anything that touches upon the operation of the jail is necessarily within the purview of the Duran case. Were the Sheriff defendants’ proposal
13

taken to its logical conclusion, every case filed in this District that involved events at the CCJ would be subsumed by Duran and transferrable to Judge Marovich, an obviously unsupportable result. For this reason, and because the defendants have offered no authority supporting their request for transfer, the Court denies the request.
7. Sheriff’s control over operations at Cermak Hospital The Sheriff defendants argue that they cannot be held liable for the vaginal swabbing procedures conducted by Cermak Health Services employees because “Sheahan has no employment relationship with Cermak[,] and Sheahan does not control Cermak or the Cook County Bureau of Health.” Sheriff Mem. at 16. This is not a basis for dismissal for failure to state a claim. As discussed earlier, plaintiffs allege in the second amended complaint that the Sheriff defendants instituted or condoned the vaginal swabbing procedure and had authority to terminate it but failed to do so. See Duckworth, 65 F.3d at 561. Though the plaintiffs may ultimately be unable to prove these allegations, at this point in the litigation, the allegations are sufficient to withstand the defendants’ motion to dismiss.
Conclusion For the foregoing reasons, the Court denies the Sheriff defendants’ motion to dismiss [docket no. 34]. The Court grants the Cook County defendants’ motion to dismiss [docket no. 38] to the extent it seeks dismissal of official capacity claims against Martin, Jr., Winship, Fagus, Scott, Rothstein, and Bersky, but we otherwise deny the motion. The defendants are directed to answer all remaining claims by September 15, 2006. The case is set for a status hearing on
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September 7, 2006 at 9:30 a.m. for the purpose of setting a discovery schedule.

Date: August 25, 2006

____________________________________ MATTHEW F. KENNELLY
United States District Judge

15

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

KIM YOUNG, RONALD JOHNSON, and

)

WILLIAM JONES, on behalf of themselves )

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK, et al.,

)

)

Defendants.

)

No. 06 C 552

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Kim Young, Ronald Johnson, and William Jones have sued the Sheriff of Cook County,

certain high ranking Sheriff’s employees, Cook County, and certain Cook County employees.

Plaintiffs allege that the defendants violated plaintiffs’ Fourth and Fourteenth Amendment rights

while they were confined as pretrial detainees at the Cook County Jail (CCJ). Plaintiffs have

moved to certify two classes pursuant to Federal Rule of Civil Procedure 23(b)(3). For the

reasons stated below, the Court grants plaintiffs’ motion.

Facts

In their second amended complaint, plaintiffs allege that the Sheriff and certain Sheriff’s

Department personnel “implemented, enforced, and/or condoned” a policy of strip searching

every detainee that enters the CCJ, irrespective of the nature of the charge against the detainee.

2d Am. Compl. ¶¶ 16-17. They contend that suspicionless strip searches of detainees accused of

misdemeanors and other minor offenses are unconstitutional. Plaintiffs also allege that the

searches of male detainees were conducted in a degrading manner that was significantly different

than the manner in which females were searched. Young alleges that on January 13, 2005, she was arrested on an outstanding traffic
warrant and taken to the CCJ. Shortly after arriving there, a female guard made her stand behind a partition, take her clothes off, squat down, and cough. Young put her clothes back on, and the guard led her, along with thirty other women, to a hallway lined with chairs, where the women waited while they took turns going into a small room for STD testing. Young claims that she did not consent to the strip search or the STD testing. Briefing on plaintiffs’ request to certify a class on their claims relating to the STD testing is being handled separately.
Johnson alleges that on April 18, 2005, he was arrested for felony possession of a controlled substance. Shortly after he was booked in the CCJ, guards ordered him and onehundred other men to strip naked in a hallway. The guards then instructed them to face a wall, bend over, and spread their buttocks with their hands, as the guards proceeded to visually inspect them. The men remained naked in each other’s presence for more than thirty minutes, during which, Johnson contends, the guards made comments that the men were unbathed and stank. He alleges that the hallway was poorly ventilated and that the air reeked of body odor.
Jones alleges that on December 30, 2005, he was arrested on an outstanding traffic warrant. He says that shortly after he was booked in the CCJ, he was strip searched in a hallway along with one hundred other men. According to Jones, there was no heat in the hallway, the temperature felt like it was less than fifty degrees Fahrenheit, and the men were shivering during the approximately forty minute period they remained in the hallway. The hallway was poorly ventilated, and the air reeked of body odor. Jones alleges that the guards repeatedly poked fun at the men.
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Plaintiffs contend that the strip searches performed on Johnson and Jones were conducted in a manner violative of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. They also allege that because jail officials strip searched Johnson and Jones in a group setting but did not perform strip searches on similarly situated females in a group setting, the searches of the men violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also contend that in view of the nature of the charges against Jones and Young, it violated the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment to strip search them. Plaintiffs have also made state law respondeat superior and indemnification claims against Cook County.
The plaintiffs have moved the Court to certify two classes. The first proposed class consists of all males who were, on or after January 30, 2004, subjected as new CCJ detainees to a strip search (a term the Court will use to cover both strip searches and visual body cavity searches). The second proposed class consists of all males and females detained for misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search as new CCJ detainees on or after January 30, 2004.
Discussion Federal Rule of Civil Procedure 23 authorizes a court to certify a case as a class action if the party seeking certification meets all of the requirements of Rule 23(a) and one of the requirements of Rule 23(b). Under Rule 23(a)(1)-(4), a plaintiff seeking certification of a class bears the burden of proving that the class is so numerous that joinder of all members is impracticable; there are common questions of law or fact; the representatives’ claims are typical of those of the class; and the representatives fairly and adequately protect the interests of the
3

class. FED. R. CIV. P. 23(a). Once a party satisfies the requirements of Rule 23(a), she must meet one of the
requirements delineated in Rule 23(b). In this case, plaintiffs seek certification under Rule 23(b)(3). As a result, they must show that “questions of law or fact common to the members of the class predominate over any questions affecting 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). Plaintiffs “assume[] the burden of demonstrating that [class] certification is appropriate.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). 1. Rule 23(a) requirements
Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is impracticable. Courts may rely on common sense assumptions or reasonable inferences as to the size of a class. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). The plaintiff is not required to show the exact number of class members so long as impracticability is apparent from good faith estimates. Lopez v. City of Chicago, No. 01 C 1823, 2002 WL 31415767, at *4 (N.D. Ill. Oct. 25, 2002). Mere speculation, however, is insufficient to prove numerosity. Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 1990) (citations omitted).
Rule 23(a)(2) requires the existence of questions of law or fact common to the class, and Rule 23(a)(3) requires that the class representatives’ claims be typical of those of the class. These requirements are closely related. See General Telephone Co. v. Falcon, 457 U.S. 147, 156 (1982). “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) (quoting
4

Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). A common set of operative facts is ordinarily present when the defendants are claimed to have engaged in “standardized conduct toward the members of the proposed class.” Id.
The typicality requirement of Rule 23(a)(3) focuses on “whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Retired Chicago Police Ass’n, 7 F.3d at 596-97. “A plaintiff’s claim is typical if it arises from the same event 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) (citations and internal quotation omitted). Factual distinctions between the claims of the named and represented plaintiffs do not defeat typicality. See Retired Chicago Police Ass’n, 7 F.3d at 596-97. The claims of the named plaintiffs must, however, have “the same essential characteristics” as those of the proposed class. See id. at 597.
Rule 23(a)(4) requires that the named plaintiffs fairly and adequately represent the class as a whole. To fulfill this requirement, both class counsel and the class representatives must be adequate. See id. at 598. A named plaintiff is generally considered to be adequate so long as his or her claims neither conflict with nor are antagonistic to those of other class members. See id.; Rosario, 963 F.2d at 1018.
a. Numerosity Proposed class one consists of all males who were, as new CCJ detainees, subjected to a strip search at any time on or after January 30, 2004. Since the beginning of the class period, approximately 250,000 men have been processed and searched at the CCJ’s Receiving Classification and Diagnostic Center (“RCDC”). Plaintiffs allege that strip searches of new male
5

detainees were conducted in the same manner throughout the class period. Given the immense number of male detainees processed and searched in the same manner, proposed class one fulfills the numerosity requirement of Rule 23(a)(1).
Proposed class two consists of all males and females charged with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search as new CCJ detainees on or after January 30, 2004. Plaintiffs sought database discovery from the Cook County Sheriff’s Department (“Department”) to determine the size of this proposed class. The Department claimed that it could not extract the information from its computers and has not provided information on the database system enabling plaintiffs to determine if they can extract the information themselves. As a result, plaintiffs have not yet received sufficient discovery to prove the exact size of proposed class two.
From publicly available data, however, plaintiffs discovered that seventeen persons encompassed within proposed class two were admitted to the jail over a four-day period in January 2007. Plaintiffs contend that by extrapolating this figure over the class period, it is obvious that the members of the proposed class are sufficiently numerous that their joinder as individual parties would be impracticable. The Court agrees; plaintiffs’ analysis is rooted in common sense, not speculation. See Lopez, 2002 WL 31415767, at *4 (holding that plaintiffs “need not demonstrate the exact number of class members” as long as a court can draw a conclusion as to numerosity based on plaintiffs’ good faith estimates).
Certain of the defendants argue that there is no “identifiable” class, but their actual argument seems to be that the strip searches conducted on incoming detainees are justified and should be declared legal. See Sheahan Resp. at 7-9. That is not an appropriate inquiry on a
6

motion for class certification. In Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001), the Seventh Circuit made it clear that a court need not accept all of the allegations of the plaintiff’s complaint in assessing whether to certify a class and “should make whatever factual and legal inquiries are necessary under Rule 23.” Id. at 675, 676. In this case, however, defendants’ proffered justification for their strip search policy has nothing to do with whether the proposed classes are sufficiently numerous, whether their claims present common issues, whether the named plaintiffs’ claims are typical of those of the class, whether the named plaintiffs are adequate class representatives, or whether the requirements of Rule 23(b) have been met. Thus inquiry into the merits is not, in the words of Szabo, “necessary under Rule 23” to determine the appropriateness of class certification.
Nor does the Court read Szabo as saying that it is appropriate to deny class certification – in the absence of a meritorious motion to dismiss or motion for summary judgment – on the ground that the plaintiff is likely to lose the case. And even if Szabo were read that way, it would be particularly unjust and inappropriate to apply such a rule in this case. All parties agreed to defer “merits” discovery pending the completion of class discovery and determination of plaintiffs’ class certification motion. Allowing defendants to defeat class certification by arguing that the evidence demonstrates that the policy of strip searching all new detainees is justified (a contention that, in any event, only addresses the claims of proposed class two) would amount to requiring the plaintiffs to fight blindfolded, standing on one leg, with their hands tied behind their backs. The issue is more appropriately addressed at a later stage of the case.
b. Commonality and typicality Plaintiffs contend that the claims of each of the proposed classes present common
7

questions of law and fact and that the named plaintiffs’ claims are typical of those presented by their fellow class members. Defendants argue that proposed class one is not viable because it includes men charged with all types of crimes with varied criminal histories. Defendants argue that this class definition is unworkable because it includes, for example, detainees accused of felonies or drug crimes, who, defendants say, properly can be strip searched.
Defendants’ argument misses the point. The claims of proposed class one concern not the propriety of conducting a strip search but rather the manner in which searches were conducted. In a nutshell, the claims of this class are that jail officials searched all men in an unreasonable and unnecessarily degrading manner and that the disparities between the search procedures for male and female detainees lack a substantial relationship to an important state purpose. In other words, the nature of the charges against particular detainees has no bearing (or, at most, a minimal bearing) on the claims of proposed class one.
To satisfy Rule 23(a)’s commonality requirement, a plaintiff need only show that there is at least one question of fact common to the class. Dunn v. City of Chicago, 231 F.R.D. 367, 372 (N.D. Ill. 2005). As a general rule, when “the defendants have engaged in standardized conduct towards members of the proposed class,” the class meets Rule 23(a)’s commonality requirement. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). In this case, the claims of both proposed classes are premised upon contentions that the defendants acted pursuant to policies and standard practices that were common to all class members.
Courts have consistently held that class actions challenging blanket strip search policies satisfy Rule 23(a)(2)’s commonality requirement. See, e.g., Bullock v. Sheahan, 225 F.R.D. 227, 229 (N.D. Ill. 2004) (“Plaintiffs allege that defendants’ policy of strip searching male inmates
8

under the stated conditions violates their Fourth and Fourteenth Amendment rights. That issue is central to the claims of the proposed class; the commonality requirement is met.”); Calvin v. Sheriff of Will County, No. 03 C 3086, 2004 WL 1125922, at *3 (N.D. Ill. May 17, 2004); see also, Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1267 (7th Cir. 1983) (“Although the circumstances surrounding the arrests and detentions of each of the plaintiffs-appellees in these consolidated cases are not identical, the situations involve the following common elements: each woman was arrested for a misdemeanor offense and each was subjected to the strip search policy of the City of Chicago.”).
The claims of proposed class one, which consists of male detainees, are that they were strip searched in a manner that affords no privacy from other detainees using search methods that are unreasonable and punitive and were treated in a way significantly different from female detainees without good reason. It can scarcely be questioned that the claims of the members of this proposed class have numerous issues in common.
The claim of proposed class two is that it is unreasonable and violative of the Constitution to strip search detainees who are charged only with misdemeanors or lesser offenses not involving weapons or drugs, absent some particularized suspicion that the particular detainee is hiding contraband. As with proposed class one, proposed class two challenges a standard policy of the CCJ (the existence of which, the Court notes, the defendants do not appear to dispute). Because both classes challenge what they characterize as standard policies and practices, common issues of fact and law permeate their claims.
A named plaintiff’s claims are not atypical simply because there are “factual distinctions between ... [their claims] and those of other class members.” See De La Fuente, 713 F.2d at 232.
9

Under Rule 23(a), the commonality and typicality requirements “tend to merge . . . [and] serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 158 n.13. In this case, the named plaintiffs are challenging the same strip search policies and methods as the classes they seek to represent. The likelihood of some range of variation in how different groups of new detainees were treated does not undermine the fact that the claims of each class share a common factual basis and legal theory. De La Fuente, 713 F.2d at 232.
Defendants argue that the named plaintiffs’ claims are not typical of those of the classes because some new detainees likely favor blanket strip searches because they result in confiscation of weapons and other items that might be used to harm them and because blanket searches may prevent some detainees from being victimized by others who might force them to conceal contraband. That may well be true, but it does not defeat the typicality of the named plaintiffs’ claims. Among other things, because certification is sought only under Rule 23(b)(3), members of the class will be permitted to opt out of the litigation. If the results of the opt-out process reflect a sufficient degree of antagonism among class members to suggest an absence of the requisite typicality, numerosity, or other relevant factors, the Court will be open to reexamination of the issue of certification of proposed class two. (The proposition that some detainees may prefer blanket strip searches has little to do with the propriety of certifying proposed class one, whose claims concern the manner of conducting strip searches, not whether they should be conducted to begin with.)
For these reasons, the Court finds that the named plaintiffs’ claims fulfill Rule 23(a)(3)’s
10

commonality and typicality requirements.
c. Adequacy Defendants do not dispute the adequacy of plaintiffs’ counsel. The Court has no doubt that plaintiffs’ counsel will be able to represent fairly the interests of the proposed classes. Defendants argue that Jones and Young, the proposed representatives of class two, are inadequate representatives of that class because they were charged with felony offenses, not misdemeanors. A proposed class representative must be a member of the class she wishes to represent. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). The evidence reflects, however, that like the other members of proposed class two, both Jones and Young were arrested on misdemeanor charges, not felonies. Specifically, Jones was arrested for driving on a suspended license, and Young was arrested for driving while her license was suspended or revoked, both of which are misdemeanors under Illinois law. See Pl. Reply at 4 & Exs. A & B; 625 ILCS 5/6-303(a). In short, based on the evidence presented, Jones and Young are members of the class. Defendants point out that the CCJ’s records appear to have stated that Jones and Young were charged with felonies. This gives rise to a legitimate question as to whether they are adequate class representatives; their individual claims may be subject to particularized defenses. See J.H. Cohn & Co. v. Amer. Appraisal Assocs., Inc., 628 F.2d 994, 998-99 (7th Cir. 1980) (representative’s claim may not be typical of those of the class – a requirement closely related to the adequacy of representation requirement – if it is likely to become a focus of the litigation). But this is far from apparent at this relatively early stage of the case, and the Court is unconvinced that any individual defenses are likely to be a significant focus of the case. That
11

said, as the case develops, the Court will not hesitate to reexamine this issue if asked and will, if it becomes appropriate, require substitute representatives for class two (and, if none are offered, will consider decertifying that class).
d. Conclusion For these reasons, the Court finds that both proposed classes satisfy the requirements of Rule 23(a).
2. Rule 23(b) requirements Plaintiffs seek certification of both classes under Rule 23(b)(3), which requires the “court
[to] find[] 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 the fair and efficient adjudication of the controversy.” FED. R. CIV. P. 23(b)(3).
When a class challenges a uniform policy or practice, the validity of that policy or practice tends to be the predominant issue in the ensuing litigation. See, e.g., Falcon, 457 U.S. at 147 n.20; Calvin, 2004 WL 1125922, at *4 (strip search case); Blihovde v. St. Croix County, 219 F.R.D. 607, 620 (W.D. Wis. 2003). Both proposed classes challenge what plaintiffs contend are uniform policies. The predominant focus of the litigation of proposed class one’s claims is likely to involve the justifications for, and propriety of, non-private strip searches.
Defendants argue, with regard to proposed class one, that the reasonableness of the way strip searches were conducted must be determined on a case-by-case basis. They point out that groups of incoming detainees varied in size from day to day. There is also the potential that the specifics of what correctional officers said to detainees before or during the searches, the room
12

temperature, and other factors may have differed from day to day. Though these are valid points,
the Court is persuaded that the predominant issues in the litigation of proposed class one’s
claims will concern the alleged lack of privacy and differences in the way male and female
detainees were treated, not whether (for example) there were fifteen as opposed to eighty male
detainees who came in on a particular date. In any event, from the limited evidence that
plaintiffs have developed to date, there is a basis to believe that it was relatively common for
correctional officers to make offensive comments to detainees. Thus, even if the specifics may
have differed on different dates, there is no reason to believe that those sorts of particulars will
become a major focus of the litigation.
With regard to proposed class two, it appears to be largely undisputed that the CCJ
searches all incoming detainees, irrespective of the characteristics of the particular detainee or
the nature of the charge against him. Defendants contend, however, that the Court will have to
make an inquiry, individual to each class member, regarding whether the facts known to CCJ
officials gave rise to a proper basis to conduct a search. This, defendants argue, precludes
certification under Rule 23(b)(3). The Court disagrees. We can put it no better than our
colleague Judge Robert Gettleman did in certifying a class of similar plaintiffs in a case
involving the Will County Jail:
Defendants misconceive the way in which reasonable suspicion factors into the class. Plaintiffs allege that under the uniform strip search policy adopted by the Sheriff, jail personnel never undertook reasonable suspicion or probable cause inquiries. Thus, the ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, but whether the Sheriff’s policy avoided all such inquiry, thus depriving those individuals of their Fourth and Fourteenth Amendment rights. The question of the validity of the Sheriff’s policy thus predominates over any “individualized questions.”
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Calvin, 2004 WL 1129522, at *4. In sum, the Court finds that plaintiffs have established that common questions
predominate over individual issues for both proposed classes. The Court also finds that plaintiffs have shown that a class action is the superior method
for pursuing plaintiffs’ claims. From the standpoint of judicial economy, handling even a modest portion of the potential claims of detainees likely would overwhelm the docket in this District. This is a case in which “class action treatment is appropriate and [ ] permitted by Rule 23 [because] the judicial economy from consolidation of separate claims outweighs any concern with possible inaccuracies from their being lumped together in a single proceeding for decision by a single judge or jury.” Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003).
Defendants also argue that the superiority requirement is not met because the treatment of pretrial detainees at the CCJ is already subject to monitoring pursuant to a consent decree entered in the case of Duran v. Sheahan, Case No. 74 C 2949. They contend that “[p]laintiffs covered by a consent decree cannot bring claims for equitable relief outside of a contempt order initiated before [the] court [that issued the consent decree].” Sheahan Resp. at 14. The Court addressed this issue when it considered defendants’ motion to dismiss. See Young v. County of Cook, No. 06 C 552, slip op. at 11-14 (N.D. Ill. Aug. 25, 2006). Defendants have made no new points in this regard, so the Court will summarize the pertinent portions of its earlier ruling. First, the contention that the issues in this case were at issue in Duran “is utterly unsupported and borders on the frivolous.” Id. at 12. The defendants have made no effort to show that strip searching of detainees at intake “was so much as discussed with the court prior to its approval of the Duran decree, let alone that those issues were disputed, litigated, or decided.” Id. Second,
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defendants “have not pointed to any part of the Duran consent decree that addresses anything like the intake strip search . . . procedures that are at issue in this case.” Id. at 13. As a result, the Duran decree does not preclude the proposed classes’ injunctive relief claims, and the Seventh Circuit has held that the decree has no preclusive effect on claims for damages. Id. (citing Martin v. Davies, 917 F.2d 336, 340 (7th Cir. 1990)). In short, the contention that the claims in this case may be brought, if at all, only as part of the Duran case is entirely lacking in merit. 3. Cook County
In its memorandum opposing class certification, Cook County argues, as it did in a motion to dismiss, that it cannot be held liable for the acts of the Sheriff. As the Court ruled, however, the County is a necessary party to this case. Id. at 8 (citing Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003), and Robinson v. Sappington, 351 F.3d 317, 338-39 (7th Cir. 2003)). In any event, the County’s argument presents no basis to decline certification of the proposed classes. 4. Final points
If anything “predominates” in this case, it is defendants’ strenuous and repeated arguments whose apparent aim is to convince the Court that the plaintiffs are doomed to lose the lawsuit. See, e.g., Sheahan Mem. at 3 & 6 (citing sixty-one instances in which strip searches revealed attempted smuggling), 4 (argument that there are good reasons for treating male detainees differently from females), 7-8 (arguing the legal validity of strip searches); Cook County Mem. at 6 (arguing that strip searches are legal), 11-14 (arguing that the search procedures are reasonable). These arguments are misplaced in the present context. As the Court has discussed, though it is appropriate to go behind the pleadings when necessary to assess the
15

factors for certification under Rule 23, none of these arguments actually concerns Rule 23’s factors. Moreover, defendants agreed to defer discovery on the merits, and as a result plaintiffs are effectively precluded at this stage from responding to defendants’ proffered justifications for the challenged policies. For those reasons, defendants cannot defeat class certification by arguing that plaintiffs are pursuing a losing cause.
If defendants want a decision on the merits – as seems to be the case – they should move for summary judgment. That will allow the Court to determine what discovery plaintiffs are entitled to take in order to address the merits. At the current stage of the litigation, however, a ruling that amounts to a decision on the merits of the plaintiffs’ claims would be premature.
Conclusion For the foregoing reasons, the Court grants plaintiffs’ motion for class certification [docket no. 75]. The Court certifies the following classes under Rule 23: (1) all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004; and (2) all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.

Date: April 25, 2007

__________________________________________ MATTHEW F. KENNELLY United States District Judge

16

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

KIM YOUNG, RONALD JOHNSON, and

)

WILLIAM JONES, on behalf of themselves

)

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK, MICHAEL SHEAHAN, )

individually and in his official capacity as Sheriff of )

Cook County, CALLIE BAIRD, individually and in )

her official capacity as former Director of the Cook )

County Department of Corrections,

)

SCOTT KURTOVICH, individually in his official )

capacity as Director of the Cook County

)

Department of Corrections,

)

SALVADOR GODINEZ, individually and in his )

official capacity as Director of the Cook County )

Department of Corrections, et al,

)

)

Defendants.

)

No. 06 C 0552 Judge Matthew Kennelly
JURY TRIAL DEMANDED

PLAINTIFFS’ LOCAL RULE 56.1(a)(1)(3) STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT
Named Plaintiffs, KIM YOUNG, RONALD JOHNSON, and WILLIAM JONES, on behalf of themselves and class of others, through their attorneys, LOEVY & LOEVY, and pursuant to Local Rule 56.1(a)(1)(3), respectfully submit the following statement of facts in support of their motion for summary judgment.

I. Parties

Class I and the Class Representatives

1. Plaintiff Class I consists of all men who were subjected to a strip search and/or a visual body cavity search on intake to the Cook County Jail (“CCJ”) on or after January 30, 2004. April 25, 2007 Order Certifying Class at 16, Dckt. No. 92. They challenge the manner used to strip search men on intake to the CCJ. Id. at 8. The representatives for Class I are William Jones and Ronald Johnson. Sheriff Defendants’ Answer to the Third Amended Complaint ¶ 51 (“TAC Answer”), Exhibit 1 hereto.

2. William Jones is a 52-year-old resident of Palatine, Illinois who had an over 20year career working for Motorola. William Jones Deposition at 5:2-4; 47:10-12, 65:22-24, Exhibit 2 hereto.

3. Mr. Jones was brought to CCJ after failing to comply with the condition of his bond for a misdemeanor traffic violation: driving with a suspended license. Exhibit 2 (Jones Dep.) at 7:18-9:17; 11; 16; Jones Court Documents at 1 (showing “BFW” warrant), 2 (showing “misdemeanor” and “minor traffic” violation checked), Group Exhibit 3 hereto. He had never been in a jail before. Exhibit 2 (Jones Dep.) at 67.

4. As part of intake, Mr. Jones was strip searched with a group of more than 50 other men in a cold hallway. Exhibit 2 (Jones Dep.) at 24; 28:10-21; 51:18-21; 70:5-9. The group was packed shoulder to shoulder, id., and they all had to stay bent over with their buttocks spread while a guard walked up and down the line. Id. at 34. He made bond later that night and was released. Id. at 10-11, 16, 42-43.

5. Ronald Johnson is a 44-year-old resident of Illinois with an MBA degree from Tulane University. Ronald Johnson Deposition at 7, 11:2-11, Exhibit 4 hereto. After being falsely arrested, he was taken to CCJ, and discharged the following day on home monitoring. Id. at 37-38; 123:13-22; Ronald Johnson Deposition in 05-c-6545 at 85-86, 122-141, Exhibit 5 hereto.

6. During intake, Mr. Johnson was strip searched in a hallway with approximately 100 other men. Exhibit 4 (Johnson Dep. in 06-c-552) at 51. It was so crowded that the participants were touching while naked. Id. at 59. The group had to bend over, spread their buttocks, and cough continuously while a guard walked down the line. Id. at 62-64.

Class II and the Class Representatives

7. Plaintiff Class II consists of all people who were charged with only a misdemeanor or lesser offense not involving drugs or weapons who were subjected to a strip and/or a visual body cavity search on intake to the CCJ on or after January 30, 2004. April 25, 2007 Order Certifying Class at 16, Dckt. No. 92. The class challenges the reasonableness of strip

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searching people with such charges absent individualized suspicion. Id. at 1. The representatives for Class I are William Jones and Kim Young. Id. at 11.
8. Kim Young is a 47-year-old grandmother who works as a certified nurse’s assistant. Kim Young Deposition at 6, 16-17, Exhibit 6 hereto. She was brought to CCJ following her arrest on a warrant from a failure to appear on a traffic case: a misdemeanor driving on a suspended license. Id. at 29, 46-47. Her bond was $200, but she did not have the money on her and had to wait for her sister to bring it to the jail. Id. at 34-35. Ms. Young went through an intake strip search before she bonded out. Id. at 143-144.
Defendants/Policymakers
9. The Defendants are Michael Sheahan in his official and individual capacities as Cook County Sheriff, Callie Baird in her official and individual capacities as Director of the Cook County Department of Corrections, Scott Kurtovich in his official and individual capacities as Director of the Cook County Department of Corrections, Salvador Godinez in his official and individual capacities as Director of the Cook County Department of Corrections (collectively the “Sheriff’s Department Defendants”) and Cook County. Answer of Sheahan, Baird, and Kurtovich to Plaintiffs’ Second Amended Complaint (“ SAC Answer”) ¶¶ 16-17, 84, 88, Exhibit 7 hereto; Exhibit 1 (TAC Answer) ¶¶ 16-17.
10. Mr. Sheahan was the Sheriff of Cook County from December 3, 1990 to December 1, 2006.1 Michael Sheahan Deposition Vol. 1 at 4:18-21, Exhibit 8 hereto. By law, the Sheriff is the Custodian of the Cook County Jail (“CCJ”). 55 ILCS 5/3-6017. He is the policymaker for the jail. Exhibit 7 (SAC Answer) ¶ 17.
11. The Sheriff has delegated policymaking authority over the jail to the Director of the Cook County Department of Corrections (“CC DOC”) including the policy for strip searching. See Exhibit 8 (Sheahan Dep. Vol. 1) at 13:19-24; 26:24-27:4, 49:22-50:9; 65:6-67:10.
12. Callie Baird was the Director from July of 2003 (before the beginning of the class period) until November of 2004. Deposition of Callie Baird Dep. at 12:15, Exhibit 9 hereto. Scott Kurtovich was the acting Director from November of 2004 to June of 2006, Deposition of Scott Kurtovich, Vol. I at 5:7-23, Exhibit 10 hereto. Salvador Godinez has been the Director since that time. Id.
13. Directors Baird, Godinez, and Kurtovich each had final policymaking authority over intake strip searches at the CCJ during their respective tenures. Exhibit 10 (Kurtovich Dep. Vol I.) at 7:18-24; 10:16-11:2; Kurtovich Deposition Vol II. at 42:16-44:5; 45:24-48:8; 49:1651:1, Exhibit 11 hereto. Additionally, Scott Kurtovich possessed final policymaking authority
1 Thomas Dart replaced Mr. Sheahan as Cook County Sheriff and he was automatically substituted in his official capacity for Michael Sheahan at that time. FRCP 25(d).
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over the strip searches from January 1, 2004 to the present (i.e., even before and after his tenure). Defendants’ Joint Response to Plaintiffs’ 5/14/07 Requests for Admission, No. 3, Exhibit 12 hereto.
14. During their tenures, Baird, Godinez, and Kurtovich were responsible for ensuring that the CCJ’s intake strip search procedures complied with state and federal requirements for the treatment of detainees. Exhibit 1 (TAC Answer) ¶ 17. This included the responsibility to reform intake search practices if they were not in compliance with the law. Exhibit 11 (Kurtovich Dep. Vol. II) at 38:23-39:2; 50:17-51:1.
15. Salvador Godinez admits that he implemented, enforced, and/or condoned the use of the procedures challenged in this case during his tenure as Director of the Cook County Department of Corrections (“CCDOC”). Exhibit 1 (TAC Answer) ¶ 17, FRCP 8(b)(3),(6).
16. It is also admitted that from January 1, 2004 to the present, Scott Kurtovich was aware of the procedures being used to conduct strip searches on new detainees at the CCJ. Id.; Exhibit 12 (Responses to 5/14/07 Requests for Admission), No. 4.
II. Background
The CCJ
17. During the class period, the CCJ has housed at a given time approximately 10,000 pretrial detainees in 10 residential divisions. Defendants’ [Sheriff Sheahan’s and Cook County’s] August 16, 2004 Status Report in 74 C 2949 at 2, Exhibit 13 hereto. The women are housed in two divisions, the men are housed in nine divisions (there is one division with both male and female tiers). Michael Sheahan Deposition Vol. II at 146:19-24, Exhibit 23 hereto.
18. In Jail parlance, new detainees coming into the facility are referred to as “on the new.” Daniel Brown Deposition Vol. I. at 163:17-19, Exhibit 14 hereto.
19. Detainees “on the new” enter the jail through the Receiving Classification and Diagnostic Center (“RCDC” or “Receiving”). Exhibit 14 (Brown Dep. Vol. I) at 20:1-9.
20. The RCDC is divided into a male side and a female side, which are physically separated. Exhibit 10 (Kurtovich Dep. Vol. I) at 74:2-20. Female officers can work on the male side of the RCDC, but men do not work on the female side. Exhibit 14 (Brown Dep. Vol. I) at 122:8-123:3.
21. Women on the new are not strip searched at the RCDC. Rather, they are only strip searched upon arrival to a housing division. Exhibit 14 (Brown Dep. Vol. I) at 21:2-20; 118:6-119:7; 133:3-134:9; 139:5-141:1; Exhibit 10 (Kurtovich Dep. Vol. I) at 58:8-12. Men on
4

the new are strip searched both at the RCDC and upon arrival to a housing division. Exhibit 10 (Kurtovich Dep. Vol. I) at 65:5-66:22; Exhibit 14 (Brown Dep. Vol. I) at 162:12-15.
The Class I Declarations
22. Group Exhibit 15 consists of declarations from 534 men who went through the RCDC hallway strip search during the class period. See Declarations, Group Exhibit 15 hereto; Declarations Summary (“Summary”), Exhibit 16 hereto.
23. The Class I declarations were obtained by attorneys who interviewed the declarants. Kanovitz Declaration ¶¶ 2-4 , Exhibit 17 hereto. Each attorney was given a portion of the CIMIS database showing each person who was booked into the CCJ on a given day of the class period. Id . The attorneys were instructed to contact potential male interviewees at random from the list and to interview only the first person for that day that they could reach. Id. By the above process, Plaintiffs foreclosed any chance for selectivity based on the account of the interviewees gave. Id.
24. Thus, each of the 513 declarations in the summary covers a different day of the class period, see Exhibit 16 (Summary), “search date” column, and thus describes a distinct strip search occurrence during the class period. Id.
25. A handful of times, there was an error and Plaintiffs obtained more than one declaration for a given class period day. When that happened, Plaintiffs would produce both statements to Defendants’ counsel and have included them in Group Exhibit 15. Id. ¶ 5.
III. The CCJ Intake Strip Search Policies
A. The Blanket Strip Search Procedure
26. All people entering CCJ “on the new” are strip searched under the CCJ’s blanket strip search policy. Exhibit 14 (Brown Dep. Vol. I) at 150:4-151:7. The strip search is done regardless of the seriousness of the charges, regardless of whether the crime involved violence or drugs, regardless of the circumstances of the arrest, and regardless of the detainee’s criminal history (or lack thereof). Exhibit 9 (Baird Dep.) at 32:9-22; Norman Carlson Deposition at 176:6-177:2, Exhibit 18 hereto.
27. Before adopting the blanket procedure of strip searching all detainees on the new, the Sheriff’s Department never looked into how often those accused of committing misdemeanors brought contraband into the CCJ. Exhibit 10 (Kurtovich Dep. Vol. I) at 91:2-17.
28. Indeed, the Sheriff’s Department’s’s FRCP 30(b)(6) witness was not aware of a strip or visual cavity search ever turning up drugs or weapons on a detainee who was accused of a non-drug, non-weapons offense misdemeanor. Exhibit 14 (Brown Dep. Vol. I) at 176-177.
5

B. The Procedure for Women
29. Instead of strip searching women at the RCDC, the CCJ uses a bodyscan machine. Erica Queen Deposition at 34:1-3, 63:5-22, Exhibit 19 hereto; Exhibit 14 (Brown Dep. Vol. I) at 120:4-121:12; Exhibit 10 (Kurtovich Dep. Vol. I) at 59:16-8.
30. The CCJ prohibited strip searching women at the RCDC in approximately 2000. Exhibit 19 (Queen Dep.) at 18:12-24; Exhibit 14 (Brown Dep. Vol. I) at 118:6-119:7; 120:4-11.
31. The change for women was made as the result of a lawsuit or lawsuits concerning the strip searching of women at the CCJ. Exhibit 10 (Kurtovich Dep. Vol. I) at 49:2-22; 58:1859:6; 140:23-141:1; 145:15-23;165:7-15; Exhibit 8 (Sheahan Dep. Vol. I) at 54:24-56:2, 73:1974:4.
32. The body scan machine was installed several years after the prohibition on RCDC strip searches for women went into effect. Exhibit 19 (Queen Dep.) at 41:3-7.
33. Under the current procedure, each woman steps, one at a time, onto a platform, spreads her arms and legs, and then the operator hits a button to start the scan. Id. at 34:10-16; 63:20-64:8. The scan takes about two minutes. Id.
34. The women remain clothed during the scan. Id. at 64:2-66:6. Even though the women are clothed, the jail maintains a partition between the group and the machine so that when one woman is undergoing the scan the others in the group cannot see her. Id. at 63:20-64:1.
35. After completing the body scan, the women are picked up by officers from their housing divisions. Id. at 60:19-23. Each woman is handcuffed and then they are escorted as a group through a tunnel beneath the jail complex to the housing division. Damita Delitz Deposition at 14:22-16:4, Exhibit 20 hereto.
36. Once at the division, the women are strip searched. Exhibit 14 (Brown Dep. Vol. I) at 92.
37. Each woman is directed into an open-faced cubicle which is approximately five feet by five feet. Exhibit 20 (Delitz Dep.) at 30:14-31:11; Exhibit 10 (Kurtovich Dep. Vol. I) at 47:9-48:12. The cubicle is like a privacy screen in a doctor’s office such that no woman standing in her cubicle can be seen by any of the other women in their cubicles. Id. Each cubicle has a chair for the woman’s clothes. Id.
38. The guards provide each woman a fresh sheet of paper to stand on so that they are not standing on the bare floor. Id.
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39. There are two women’s housing divisions. One has 13 cubicles, the other has only three, and no more than that number of women participate in the strip search at one time. Exhibit 20 (Delitz Dep.) at 28:15-29:16.
40. The women are first ordered to disrobe, then they are instructed to rub their fingers behind their ears, run their fingers through their hair, stretch their arms and feet apart, lift their breasts, and squat down and cough (although not necessarily in that order). Id. at 31:4-32:17. The women then put their clothes back on, one article at a time, after shaking each to show there is nothing inside. Id. at 35:1-13.
41. During this entire process, the women are disrobed for a total of no more than approximately four minutes. Id. at 59:13-16. It is a quick process. Id.
42. The process is the same for all women on the new. Exhibit 10 (Kurtovich Dep. Vol. I) at 92:14-18.
C. Additional Information About Prior Strip Search Lawsuits/Lack of Changes for the Men
43. On April 8, 2001, the Chicago Tribune published an editorial about strip searches of women at the CCJ. See Editorial, Exhibit 21 hereto; Exhibit 8 (Sheahan Dep. Vol. I) at 74:875:23; Exhibit 23 (Sheahan Dep. Vol. II) at 117:8-118:16.
44. Sheriff Sheahan and members of his staff read the editorial. Exhibit 23 (Sheahan Dep. Vol. II) at 118:12-120:20.
45. The editorial discussed a lawsuit filed by Tonya Townsend. Exhibit 21 (Editorial) at 1. Ms. Townsend’s lawsuit was styled Wilkes et al. v. Sheahan, et al. See Wilkes Amended Complaint, Exhibit 22 hereto. It challenged, inter alia, the female group intake strip searches at the CCJ. Id., passim.
46. Although he is not a lawyer, Sheriff Sheahan understood from the editorial that the lawsuit challenged “the demeaning way” in which strip searches were being performed at the CCJ. Exhibit 23 (Sheahan Dep. Vol II) at 122:23-124:3.
47. The editorial stated that women were being strip searched in groups of 15 to 40. Exhibit 21 (Editorial) at 1.
48. It stated that the women were being required to perform the squat and cough repeatedly during the search. Id. at 1.
49. The editorial stated that the guards would insult the women, calling them “bitches” and “whores.” Id. at 1.
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50. The editorial stated that women would cry, collapse, and even vomit during the search if they were “drug sick.” Id. at 1.
51. The editorial stated that unleashed dogs were sometimes used during the search. Id. at 2.
52. The editorial stated that even the guards performing the searches had testified that the floors were sometimes so fouled with urine, excrement and blood that they too felt like vomiting. Id. at 2.
53. The editorial stated that New York City strip searches its detainees individually, even though it has more detaineees than Cook County. Id. at 2.
54. The editorial stated that in Cook County, instead of performing the searches individually throughout the day, the jail waits until the bullpen fills up with a “critical mass” of detainees, sometimes for hours on end. Id. at 2-3.
55. In January of 1995, Sheriff Sheahan was sued by a male inmate, inter alia, for the manner of the group strip search, stating:
Upon my arrival at [the Jail] I was taken to receiving.... Afterward ... we were strip searched. We were made to stand naked and barefoot. The tunnel was extremely cold and the floor was damp and soiled. After our clothes were searched we were directed to turn around and face the wall. Then they searched our shoes and personal papers. I made the mistake of looking at the officer behind me. He bashed my head into the wall....
Pryor v. Sheahan, 1996 WL 221198, *1 (N.D. Ill. 1996).
56. Judge Manning refused Defendant Sheahan’s motion to dismiss these allegations, citing Bell. Thereafter, the claims were settled. See Report of Committee on Finance for April 15, 1997, available at http://legacy.cookcountygov.com/secretary/CommitteePages/ Meeting%20Reports/ Finance%20Committee/1997/04-15-97.htm.
57. On or about July 16, 2003 (before the class period commenced), detainee George Jenkins filed a grievance regarding his intake strip search at the RCDC. Jenkins Declaration ¶¶ 3-5; Jenkins Grievance, Group Exhibit 24, hereto.
58. It states, inter alia:
This is a second grievance. I am writing this grievance due to the improper and unconstitutional strip-body cavity search 3 times, or 2 more than was necessary.
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The second and third strip-body cavity searched was ordered as punishment for a detainee in the strip-body cavity search line not understanding English . . . On the 3rd strip-body cavity search c/o Broadway ordered us to stay bent over (Naked), holding our buttocks open (coughing), until he finished searching our shoes and property, which took about 5 minutes!
Id. (grievance).
59. In July of 2004, George Jenkins sued Defendant Sheahan and others over the intake strip search. Jenkins Amended Complaint, passim, Exhibit 25 hereto. The complaint alleged, inter alia, that plaintiff was subjected to misconduct:
while at the Cook County Department of Corrections, on July 7, 2003, Div. 5, at about 8:30 pm of the basement hallway or tunnel, during 3 consecutive strip body cavity searches that were performed in a highly abusive fashion and manner. . . . Defendant Sheahan has failed to establish policies designed to safe-guard the plaintiff from being subjected to a strip-body cavity search 3 times in an abusive fashion in violation of Bell v. Wolfish. . . . Defendant Velasco has a policy and practice of having plaintiff, and other pretrial detainees to be strip-body cavity searched in an open hallway-tunnel. . . [and that there are alleged] illegal acts that are contained in Exhibits #1 and #2.
Complaint at 6-7B. The first exhibit to Jenkins’ complaint was the grievance dated July 16, 2003. Id.
60. The second exhibit was a letter Jenkins sent to Sheriff Sheahan dated July 22, 2003, recounting the same events. Id. at Exh. 2. That letter was received by Mr. Sheahan’s office and Mr. Jenkins was told it was being investigated. Id. at Exh. 2, p. 4.
61. Sheriff Sheahan read the letters that his office received from inmates and did not have his staff intercept them. Exhibit 23 (Sheahan Dep. Vol. II) at 186:5-189:3.
D. The Group Strip Search Procedure for Men when this case was filed
1. The first strip search, at the RCDC
Size of the Group/Proximity of the Searchees/Lack of Dividers
62. Unlike with the women on the new, the men are strip searched at the RCDC before going to their housing divisions. Exhibit 10 (Kurtovich Dep. Vol. I) at 65:5-66:22.
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63. The RCDC staff do not start the strip search until the bullpen fills up. Exhibit 14 (Brown Dep.) at 98:12-22; 257. Then they take the men into a hallway to be strip searched as a group. Id. at 98:12-22; Exhibit 10 (Kurtovich Dep. Vol. I) at 75:13-23, 77:1-10. All men are strip searched in the same fashion. Exhibit 10 (Kurtovich Dep. Vol. I) at 92:19-22.
64. The hallway is approximately 150 feet long. Id. at 75:13-23. Sometimes the detainee line runs along the entire wall. Exhibit 14 (Brown Dep. Vol I) at 109:19-110:12. Declarants have reported massive strip searches with detainees lined up on both walls. See e.g. Declaration of Darrell Flenard 1-11-07 (Inmates were lined up on both sides of the hallway and both sides were completely full.”) (bates nos. 1016-1017), Group Exhibit 15.
65. Jail Guard Montique testified that the guards usually take groups of 75 men at a time from the bull pen and that the last group of the night is usually fewer. Alvin Montique Deposition at 34:16-37:7; 48:20-49:5, Exhibit 26 hereto.
66. Montique testified that the men have six inches or less between them. Id. at 35:311.
67. Of the 513 strip search events covered by the Summary, 453 (or almost 90%) involved searches where the detainees were packed so close that the declarant made physical contact with the body of at least one other detainee while he was being strip searched. Exhibit 16 (Summary) at Column 7 (“contact”). See e.g. Declarations of: Derrick Peterson 4-1-04 (“Given the number of men in the hallway, I had no personal space during the search. . . . I made contact with other searchees a number of times.”) (bates nos. 96-97); Roy Cobbs 2-22-05 (“We were instructed to be so close to the people next to us that we were touching.”) (bates nos. 296-297); John Schuricht 6-4-05 (“You could not move without touching the naked men on each side of you.”) (bates nos. 440-441); Joshua Yang 8-25-05 (“I was approximately 6 inches or less from the inmates next to me. Occasionally during the strip search I bumped up against the inmates next to me. There were no dividers.”) (bates nos. 549-550); Torrence Williams 3-8-06 (We were ordered to strip naked as a group. . . . I had no personal space during the search. As we stood in the hallway, I was actually touching the shoulders of the inmate to my right and to my left.”) (bates nos. 795-796); and Effrin Hobbs 1/1/07 (“The inmates were literally forced to stand shoulder to shoulder. As we stood in the hallway, I was actually touching the inmates to my right and to my left for the entire search period.”) (bates nos. 990-991), Group Exhibit 15.
68. Additionally, all 513 declarants reported that they could see the naked bodies of the other searchees and that it appeared that the other detaineees could see them. Exhibit 16 (Summary) at Column 8 (“visible”).
69. The population coming into the jail includes homeless people, Exhibit 18 (Carlson Dep.) at 127:12-19, and some of the detainees going through the strip search are dirty. Exhibit 26 (Montique Dep.) at 64:8-16.
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70. Many declarants reported an overwhelming stench from the mass strip search. See e.g. Declarations of: Dewayne Stewart 8-14-05 (“The hallway smelled horrible, like urine and a dead animal”) (bates nos. 526-527); Daniel Galven 8-11-05 (“The hallway smelled like bad body odor, and there was no ventilation.”) (bates nos. 520-521); and Bennet Sanders 1-1-06 (“There was garbage on the floor. The hallway smelled like feces.”) (bates nos. 711-712), Group Exhibit 15.
71. Even the jail guards have directed complaints to supervisors and each other about the stench. Exhibit 26 (Montique Dep.) at 55:20-56:7; Bryan Hatton Deposition. at 78:4-14; 58, Exhibit 27 hereto: Marlon Jones Dep.58-59:1, Exhibit 28 hereto.
72. No effort is made to determine the last time a person has bathed before they go through the group strip search. Exhibit 26 (Montique Dep.) at 64:17-21.
73. Some declarants estimated that over 100 men were forced to go through the search at one time. See e.g. Declarations of: Leroy McKeller 10-22-05 (bates nos. 632-633); Timothy P. Gaffigan 2-12-07 (bates nos. 1036-1037); and Brandon Gaiter 3-17-06 (bates nos. 805-806). Group Exhibit 15.
74. The Sheriff Department’s FRCP 30(b)(6) witness was unable to give an estimate of the average number of participants in each search. Exhibit 10 (Kurtovich Dep. Vol. I) at 77:116. Another 30(b)(6) witness, Daniel Brown, has seen 80 at a time, Exhibit 14 (Brown Dep. Vol. I) at 188:3-4, and he could not rule out that strip searches may be done with greater than 80 men at a time. Id. at 99:4-13.
75. For the period of time before Plaintiffs filed their motion for class certification, there were no privacy screens in the hallway for the men as there were for the women. Exhibit 10 (Kurtovich Dep. Vol. I) at 77:24-78:10.
76. Defendants’ expert, Norman Carlson, is not aware of any jails that have done group strip searches without affording privacy dividers in the last 20 years. Exhibit 18 (Carlson Dep.) at 158:4-9.
77. Mr. Carlson was the main defendant in Bell v. Wolfish along with Griffin Bell. Exhibit 18 (Carlson Dep.) at 46:1-11. By the time of Bell, the United States Bureau Of Prisons’ Metropolitan Correction Center at issue in that case was using privacy dividers for its strip searches such that each participant had privacy from the others. Id. at 50:8-51:9.
78. When asked in November 2006 why the CCJ had not installed privacy dividers for the group strip search in the RCDC hallway, the Department’s FRCP 30(b)(6) witness stated that he was the most knowledgeable person and that to the best of his knowledge the Department had never looked into it. Exhibit 10 (Kurtovich Dep. Vol. I) at 86:19-87:11; 89:9-19.
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79. He also was not aware of any reason why dividers could not be used in the RCDC hallway for the men, and he could not foresee any serious problem with installing them. Id. at 88:14-89:19.
80. Sheriff Sheahan made the decision to install the dividers for the women, Exhibit 8 (Sheahan Dep. Vol. I) at 46:23-48:4; 56:6-10; 67:13-24, and to change the area where the strip searches of the women were performed from the RCDC to the division. Exhibit 23 (Sheahan Dep. Vol. II) at 127:12-128:7.
81. He did not require the use of dividers for the men at that time. Exhibit 8 (Sheahan Dep. Vol. I) at 75:24-77:18.
82. Regardless, after approving the dividers for women, he did not have any objection to installing them for the men. Exhibit 8 (Sheahan Dep. Vol I) at 83:18-84:6.
The steps in the strip and visual anal cavity search
83. Once in the hallway, the men are instructed to line up, single file, behind a yellow line that runs along the floor and to place their backs against the wall. Exhibit 14 (Brown Dep. Vol. I) at 106:8-108:5. The guards then order the men to step forward, remove all of their clothing and shoes, put the articles on the line, and then place their backs against the wall. Id. at 184:12-85:21.
84. The group is then instructed through the following steps: raise their arms above their heads; wiggle their fingers; open their mouths and stick out their tongues; run their fingers through their hair; turn around and place their hands high up on the wall; and then lift the left foot then the right. Id. at 184:12-85:21.
85. Additionally, the men are instructed to take a step back, bend over at the waist, “grab their cheeks,” pull them apart, and cough. Id. at 112:12-22; 199:7-200:21. The guards then examined the exterior of each man’s anus. Id. at 170:3-9; 237:12-15.
86. For each step, the officers performing the search must observe each searchee in the group satisfactorily perform each step Id. at 185:17-188:15.
87. According to Daniel Brown, an FRCP 30(b)(6) witness for the Department, the Jail ceased performing this part of the search in or about March of 2006 (several months after this case was filed) and now uses the squat and cough alternative that it had been affording to the women. Id. at 112.
88. Brown was not aware of any justification for using the bend and spread on the men rather than squat and cough. Id. at 145:2-22.
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89. The CCJ has not encountered any problems substituting the squat and cough procedure on the men. Id. at 117-18. It appears to be just as effective as the visual bend and spread search. Id. at 176-177.
90. Despite the successful substitution, numerous declarants describing intake strip searches occurring after March of 2006 report that the bend and spread is still used and that they had to do both the bend and spread and the squat and cough procedures. See e.g. Declarations of: Stuart Fernandez 5-27-06 (bates nos. 884-885); Leodis Mitchell 5-30-06 (bates nos. 889-890); Darrell Flenard 1-11-07 (bates nos. 1016-1017); and Michael Scott 2-15-07 (bates nos. 10401041). Group Exhibit 15.
91. According to the FRCP 30(B)(6) witness Brown, the change from the bend and spread to the squat and cough procedure was never put in writing. Exhibit 14 (Brown Dep. Vol. I) at 112:9-116:11.
Hygiene/bodily fluids problems stemming from the dense search and lack of dividers
92. Bodily fluids were often present during the male group search. Exhibit 16 (Summary) at Column 10 (“bod. flds”). During 245 of the searches, the declarant or another detainee in the search released diarrhea, vomited, and/or bled. Id. See e.g. Declarations of: Vince King 4-22-04 (“During the search, any of the inmates were violently sick. The inmates were made to clean up their own vomit even though this made them get sick again.”) (bates nos. 98-99); Bennet Sanders 1-1-06 (“Then when that inmate threw up, the guards made that inmate clean the vomit up off the floor with his own shirt.”) (bates nos. 711-712); Nick Brocato 2-6-05 (“I witnessed a number of men who were physically ill during this search. There were a number of men who were vomiting and had diarrhea. There was also one individual who had blood coming out of his anus. None of these men were taken out of line.”) (bates nos. 280-281); Philip Jones 2-24-05 (“One older gentleman urinated on himself. There were also a couple individuals who were vomiting. These individuals were forced to clean up their own vomit.”) (bates nos. 298-299); John Schuricht 6-4-05 (“When we were told to bend over, one inmate about five people down from me complained that he could not bend over or he would throw up. The guards shoved him into the wall. I could hear the guards beating him. . . . When we left the hallway we had to walk through his vomit and feces.”) (bates nos. 440-441); Damon Sanders 8-22-05 (“ I observed at least 2 people vomit onto the floor. I also observed an inmate with open sores on their arm and back.”) (bates nos. 543-544); Jeremiah Brewer 5-26-06 (“ I did observe other inmates get ill and vomit during the search. When this would happen the guards would scream at the sick men and make them clean up the floor.”) (bates nos. 882-883); Kirk Flemming 10-27-06 (“I noticed that a few searchees were throwing up, and I saw one man pass out. The guards called for help, but it took over 30 minutes for help to arrive.”) (bates nos. 986-987); Effrin Hobbs 1-1-07 (“Because of the smells in the hallway, it was hard to breath. I ended up vomiting and at least two other inmates began vomiting as well.”) (bates nos. 990-991); and Anthony Williams 2-10-07 (“During the search a couple of inmates began to get sick. These inmates vomited on the floor and the walls of the hallway. The vomit splattered and hit other inmates
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and got on other inmates clothes that they had to put back on after the search. At no point during the strip search was any of this vomit cleaned up.”) (bates nos. 1032-1033). Group Exhibit 15.
93. Sheriff Sheahan knew that detainees vomit all the time because some may be coming down off of drugs and get sick during the strip search. Exhibit 23 (Sheahan Dep. Vol. II) at 166:2-24.
94. Defendants’ expert, Norman Carlson, testified that given the type of population that is coming into the jail, he would also expect that people would at times vomit or have diarrhea during the strip search. Exhibit 18 (Carlson Dep.) at 128:1-22.
95. Men vomit “all the time” during the strip searches. Exhibit 26 (Montique Dep.) at 59:22-60:1.
Insults and slurs/use of threats and violence
96. 431 of the 513 declarants reported insults being used by the guards during the group strip searches. Exhibit 16 (Summary) at Column 11 (“insults”).
97. The guards used insults about matters like body order, their anatomy, sexual orientation and race. See e.g. Declarations of: Joseph Sanchez 3-21-04 (“The guards called me a ‘faggot.’ They called other inmates ‘bitches.’”) (bates nos. 81-82); Vince King 4-22-04 (“The guards regularly made comments regarding inmates’ anatomy, especially their genitals.”) (bates nos. 98-99); Ronald Robinson 7-11-05 (“The guards made fun of inmates’ appearances, including commenting about an inmate’s genitalia, and animal noises to comment on the size of an inmate. One inmate who had bandages on and appeared to be bleeding was told, ‘it’s a shame they did not finish you off because you’re an ugly motherfucker.’”) (bates nos. 472-473); Dameon Sanders 8-22-05 (“I observed a guard insult one inmate who did not speak English very well. The guard asked about his green card and said ‘ what are you doing here in America.’ The guard also called him gay because of the look of his underwear.”) (bates nos. 544-545); Bennet Sanders 1-1-06 (“They called us ‘nigger,’ ‘motherfucker,’ ‘boy,’ and ‘punk.’ The guards called one inmate that was gay ‘faggot.’ The guards taunted him saying ‘With your homosexual ass.’”) (bates nos. 711-712); Brandon Gaiter 3-17-06 (“The guards called us ‘bitches,’ ‘hoes,’ ‘gays,’ and ‘ladies.’”) (bates nos. 805-806); Derrick Taylor 6-30-06 (“One of the searchee on the line told the guards that his mother had just passed on. The guards then made rude and derogatory comments about the searchee’s mother. When the searchee got upset he was called a ‘dope fiend’ and was threatened with being taken to another room and being beaten if he said another word.”) (bates nos. 927-928); and Kirk Fleming 10-27-06 (“They called us names like ‘bitches’ and ‘hoes.’ They used racial slurs and threatened physical violence.”) (bates nos. 986-987). Group Exhibit 15.
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98. Guards also frequently used violence during searches. Of the 513 declarants in the Summary, 397 of them either witnessed or was a victim of violence by the guards during the strip search. Exhibit 16 (Summary) at column 12 (“violence”). See e.g. Declarations of: Jesus Urichima 2-7-04 (“If someone does not understand English, they will get beat up by the guards for not understanding.”) (bates nos. 14-15); Jose Santoyo 1-1-05 (“When these individuals did not follow the guards’ instructions immediately, due to their lack of understanding, the guards would smash their heads into the wall or hit them in the face.”) (bates nos. 234-235); Kenneth Collier 8-30-05 (“Approximately 5 inmates were individually assaulted by the guards. For these inmates the guard approached the inmate and punched the inmate a few times in the face and stomach.”) (bates nos. 559-560); Mario Hogans 10-18-05 (“They treated the sickest inmates the worst. For example, when an inmate was too sick to stand, one of the guards went to him and told him to stand or he would ‘smack’ him. When the inmate failed to comply exactly, the guard smacked his head into the wall. Simply put, we were not treated like human beings.”) (bates nos. 630-631); Kevin Gage 1-26-06 (“While I was bent over during the strip search I was kicked in the back by one of the guards. I could not say anything in fear of brutal retaliation from the guards. I observed 3 other inmates get hit by the guards.”) (bates nos. 729-730); Alphonso Gaines 3-3-06 (“The sick inmate was hit by the guards because he threw up.”) (bates nos. 785786); Brandon Gaiter 3-17-06 (“I was hit in the back of the head with my own Timberland boot.”) (bates nos. 805-806); Waldon Brown 4-25-06 (“My head was slammed back against the wall when I briefly moved it. I also observed the guards slapping and pushing other men for not following the instructions fast enough.”) (bates nos. 848-849); Patrick Foster 6-17-06 (“I saw the guards slap one man and hit another with his own boot because they turned around while the guards were inspecting their own clothes”) (bates nos. 917-918); Patrick Sanders 10-15-06 (“One guard slapped a man in the face because he picked up his shoes when he was not supposed to. Upon getting hit, the man started to bleed from his nose.”) (bates nos. 976-977); and Michael Scott 2-15-07 (“The guards also threw shoes at some inmates and kicked some inmates from behind.”) (bates nos. 1040-4041). Group Exhibit 15.
99. Also, dogs were sometimes used during the strip searches, 25 of the 513 (or approximately 5%) strip search events in the Summary included the use of dogs. Exhibit 16 (Summary) at column 13.
100. Declarants reported that the dogs were used to threaten and frighten detainees during the strip search. See e.g. Declarations of: Nathaniel Butts 5-04 (“Perhaps the scariest aspect of the entire process was the use of the dogs. The guards allowed the dogs to search us without muzzles or leashes. The guards told us that if we moved the dogs would bite of (sic) our genitals.”)(bates nos. 100-101); Nick Brocato 2-6-05 (“There were three dogs used during this search. These dogs were unmuzzled and came right up to us to sniff our bodies.”)(bates nos. 280-281); Alvin Stanton 7-8-05 (“The dog sniffed the inmates belongings and the inmates themselves, while the inmates had no clothing on. The dog was not muzzled.”)(bates nos. 467468); Darryl Burrows 7-1-06 (“The dogs stood by the guards and barked at the searchees whenever a guard raised his voice.”)(bates nos. 930-931); and Derris Miles 7-3-06 (“At least
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three dogs were present during the search, one without a muzzle, and the guards made threats of physical violence if any searchee were to look at the dogs.”)(935-936). Group Exhibit 15.
101. Director Baird gave orders to have dogs present at the RCDC in connection with inmates entering the CC DOC. Exhibit 9 (Baird Dep.) at 41:23-44:14; 3/8/06 External Operations Memorandum, Exhibit 29 hereto.
102. She gave the order after Director Kurtovich requested it. Id. She claims that her purpose for having dogs present at the RCDC was to “provide a sense of calm” and a “deterrent effect.” Id.
103. Director Baird believes that there could be a “myriad of different situations” where it would be appropriate to use dogs during the RCDC strip search. Id. at 39:5-40:6.
104. The K9 officers were expressly ordered to have their dogs in the hallway during the male strip search. Declaration of Jeffrey Aleman ¶ 3, Exhibit 30 hereto. It was not uncommon for the inmates to be fearful of the dogs. Id. ¶ 4.
105. Director Baird claims she did not know that dogs were actually being used during the strip searches. Exhibit 9 (Baird Dep.) at 38:24-39:4.
106. On April 22, 2005 (after Kurtovich had succeeded Baird as Director), Kurtovich himself ordered that the dogs be present at the RCDC in connection with detainees on the new. 5/3/05 External Operations Memorandum, Exhibit 31 hereto; Exhibit 29 (3/8/06 Memorandum).
107. On April 23, 2005, CCJ K9 specialist Aleman wrote an incident report criticizing the use of dogs in the RCDC. 4/23/05 Report, Exhibit 32 hereto. He wrote a second such report on April 27, 2005. 4/27/05 Report, Exhibit 33 hereto.
108. On April 29, 2005, Mr. Aleman wrote a third such report, this time noting that the K-9 assignment came from Acting Director Kurtovich. 4/29/05 Report, Exhibit 34 hereto; Exhibit 30 (Aleman Declaration) ¶ 6. Shortly thereafter, he was removed from the K9 team and placed into a less desireable and lower paying position. Id. Director Kurtovich refused to give Mr. Aleman an explanation for the demotion. Id.
Repetitious searches and other demeaning procedures
109. Additionally, guards required that the groups repeat the strip search or portions thereof. This would often occur when one member of the group would make a mistake or take longer than the rest of the group, and the guards would require the entire group to repeat the procedure as a punishment; sometimes there was no provocation at all. See e.g. Declarations of: Roy Cobbs 2-22-05 (“I was order (sic) to bend and spread my cheeks as well as to squat and cough. Both of these procedures took approximately one minute. However, if anyone did not
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follow instructions we were forced to begin this process all over again. The (sic) occurred a couple of times.”)(bates nos. 296-297); Daniel Galvan 8-11-05 (“I was required to bend over, spread my butt cheeks, and cough. This process took approximately 10 minutes because the guards made all inmates repeat the process until the guards were satisfied that all inmates coughed in unison.”)(bates nos. 520-521); Robert Severson 10-17-05 (“Because some of the inmates did not cough loudly enough and because some did not cough all in unison, the guards forced us repeat this humiliating procedure. We had to go through the process of squatting and coughing about four or five times.”)(bates nos. 628-629); and Lonnie Holder 1-6-07 (“We were forced to do this twice during the search because one of the inmates did it wrong. We were bent over with our cheeks spread for about five minutes each time.”)(bates nos. 1006-1007); Group Exhibit 15.
110. Of the 513 declarants in the Summary, at least 395 reported the use of a bend and spread procedure either alone or with a squat and cough during the strip search.2 Exhibit 16 (Summary) at column 9.
111. The average length of time that these declarants had to remain in the bend and spread and/or squat and cough position was 6 minutes. Id.
112. The duration of the entire strip search reported by the declarants was as follows: approximately 46% lasted between fifteen and thirty minutes; approximately 20% lasted between thirty and forty-five minutes; while approximately 24% took longer than forty-five minutes. Approximately 6% lasted between ten and fifteen minutes, while the remainder took ten minutes or less. Exhibit 16 (Summary) at columns 1-5 (“overall length of searches”).
113. Temperature often was also an issue during the group searches: 273 of the 513 reported that the hallway was cold during the search. Exhibit 16 (Summary) at column 6 (“temp.”). See e.g. Declarations of: James Thigpen 2-6-04 (“It was cold to the point where it made you shiver.”)(bates nos. 11-12); Joseph Davison 6-1-06 (“The hallway where the strip search took place was extremely cold and uncomfortable.”)(bates nos. 893-894); and Kevin Henry 1-8-07 (“The hallway was freezing cold and very uncomfortable.”)(bates nos. 1010-1011). Group Exhibit 15.
114. It is common for the detainees to complain about the temperature. Exhibit 26 (Montique Dep.) at 55:12-15.
2 More declarants than 395 reported the use of a bend and spread procedure. The number reported in the Summary (395) constitutes only those men who described a specific amount of time for that procedure. See Group Exhibit 15, passim.
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2. The second strip search at the mens’ housing divisions
115. Once they have put their clothes back on, the men then wait in bull pens to be transported to the housing divisions. Exhibit 14 (Brown Dep. Vol. I) at 200:10-201:16.
116. When the men arrive at their respective divisions they undergo a second strip search. Id. at 162:12-163:24. The process is the same as at the RCDC. Id.; Exhibit 27 (Hatton Dep.) at 93:25-94:20.
117. The female body scan is used at the RCDC because the Department prohibits strip searching the women there like they do the men. Exhibit 10 (Kurtovich Dep. Vol. I) at 66:367:15. The purpose for the male RCDC search it to screen for contraband before the detainee is transported from receiving into the jail. Id.
118. The reason for strip searching men at the RCDC hallway, rather than only upon arrival to the housing division as with the women, is because the CCJ has a body scan machine for the women but not for the men. Exhibit 14 (Brown Dep. Vol. I) at 159:8-160:4.
119. The Department’s 30(b)(6) witness had no knowledge why the Sheriff does not provide a bodyscan machine for the men at the RCDC, or if the Department had ever looked into obtaining one. Id. at160:5-161:7.
120. Following this Court’s decision to certify the case as a class action, the CCJ did install a body scan machine for the men at the RCDC. Exhibit 11 (Kurtovich Dep. Vol II) at 19:19-19:4.
121. It takes only seconds to complete the scan. Id. at 58:3-10.
122. The machine costs approximately $150,000. Id. at 19:19-20:4. The CCJ also obtained an x-ray machine for the men’s shoes, which adds to the expense. Id. at 20:14-21:4
123. The machine is not 100% effective at finding contraband. Id. at 32:18-33:2. Nevertheless, it is Mr. Kurtovich’s recommendation that the scanning machines should replace the blanket strip search. Id. at 33:21-35:8; 68:3-13. Intake strip searches based on individual suspicion would still remain an option. Id.
124. As of Mr. Kurtovich’s deposition in December of 2007, the CCJ was still using the blanket strip search at the RCDC. Id. at 64:9-15.
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By contrast, the women have been transported to their housing division without any RCDC strip search or body scan
125. For at least seven years before Erica Queen’s November 2006 deposition, strip searching had been banned for women at the RCDC. Exhibit 19 (Queen Dep.) at 18:12-24.
126. About three years before her deposition, the CCJ had installed a bodyscan machine for the women in the RCDC. Id. at 41:3-7.
127. In the interim, new female detainees were simply transferred from the RCDC through the tunnel to the housing divisions without a strip search or a body scan for weapons or contraband. Id. at 41:11-21.
128. Since the CCJ installed the body scan machine on the women’s side of the RCDC, the women are now body scanned for weapons and contraband before going to their housing divisions. Id. at 60:19-23.
129. Nevertheless, when the machine breaks down, the women are sent directly to the divisions with no strip search to substitute. Id. at 40-41.
3. The addition of the dividers for the men’s strip searches
130. In February of 2007, after Plaintiffs filed their motion for class certification, the CCJ installed privacy dividers in the RCDC hallway for the male intake strip searches. 3/8/2007 Brown Affidavit ¶¶ 10-11, Exhibit 35 hereto.
131. The dividers are privacy screens, consisting, essentially, of cloth hung on a metal rod. Brown Dep. Vol. II at 14:21-15:1, Exhibit 36 hereto.
132. The screens were set up in the hallway, approximately every four feet. Id. at 20:14-21:9. The hallway is large enough to accommodate 37 strip stalls. Id.
133. The CCJ then limited the number of men who could go through the group intake strip search at one time to the number of stalls. Id. at 32:9-33:18.
134. The Department’s FRCP 30(b)(6) deponent testified that the change makes the search better and that the guards are probably more thorough with 37 people than with the greater numbers. Id. at 32:21-33:18; 36:1-38:2.
135. Also, the change has not affected the CCJ’s ability to timely process all of the detainees on the new. Id. at 80:12-81:12.
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136. Defendants’ expert, Norman Carlson, admits that the CCJ has not experienced any major problems from the addition of dividers (beyond the wear and tear on the dividers themselves). Exhibit 18 (Carlson Dep.) at 54:20-55:9.
137. Following installation of the partitions in the RCDC hallway, partitions were added for the strip searches at the divisions in approximately June of 2007. Exhibit 11 (Kurtovich Dep. Vol. II) at 9:21-10:7.
138. The change to the RCDC strip search procedure regarding the use of dividers was communicated orally to the guards; there is nothing in writing about the requirement. Exhibit 36 (Brown Dep. Vol. II) at 20:17-24.
139. Sometimes the guards fail to follow the verbal procedure. See e.g. Declaration of Nicholas Perez 5-4-07 (“As we stood in the hallway there were 2 to 3 inches of space between myself, and the inmate to my right and to my left. There were dividers, but the guards did not use them.”).
IV. The Admittedly Reasonable BOP Strip Search Procedures Compared
140. Defendants admit that the BOP procedures regarding intake strip searches of detainees are relevant to this case. Exhibit 12 (Defendants’ Responses to 5/14/07 Requests for Admission), No. 16.
141. Defendants also admit that the BOP procedures regarding intake strip searches of detainees are reasonable for the circumstances in the BOP. Exhibit 12 (Defendants’ Supplemental Joint Response to Plaintiffs’ 5/14/07 Requests for Admission), No. 8.
142. Defendants also assert that the circumstances for the BOP strip searches are similar to those for the CCJ in that: (1) both BOP and the CCJ receive pretrial detainees charged with nonviolent offenses, violent offenses, and drug offenses, and also those who are repeat felons; and (2) the BOP has a large intake volume of detainees sufficient to justify using a group strip search procedure. Defendants’ Joint Answers to Plaintiffs’ Amended 9/28/07 Interrogatories, No. 1, Exhibit 37 hereto.
BOP Privacy Requirements For Intake Strip Search
143. The BOP permits strip searching more than one detainee at a time. Program Statement 5800.12 Chapter 1 at 9-10, Exhibit 38 hereto.
144. Nevertheless, the policy requires privacy amongst the searchees by limiting the number of participants to the number of available strip stalls (which are, essentially, privacy dividers). Id.; Exhibit 18 (Carlson Dep.) at 191:17-192:4.
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145. The policy is dated 12/31/97. Id. By the time Mr. Carlson retired from the BOP in 1987 all of the facilities had privacy screens such that each person going through the strip search had privacy from the others. Exhibit 18 (Carlson Dep.) at 50:3-51:5.
BOP Prohibition on Blanket Strip Searches of Persons Charged with Misdemeanors
146. The BOP policies prohibit intake strip searches of detainee charged with misdemeanors or contempt unless the detainee consents or unless there is reasonable suspicion that the particular detainee is in possession of contraband or weapons. See Program Statement 7331.03 at 6, Exhibit 39 hereto.
147. Rather, persons charged with misdemeanors or contempt are given the option to avoid the strip search by remaining out of general population. Id.; Exhibit 18 (Carlson Dep.) at 169:15-20.
148. This prohibition has been in place since at least 2002. Exhibit 18 (Carlson Dep.) at 90:2-13.
149. Defendants’ expert, Norman Carlson, is not aware of any jurisdictions, other than Cook County, that are doing blanket strip searches of persons charged with misdemeanors without giving them the same option the BOP gives. Exhibit 18 (Carlson Dep.) at 169:15-20.

Arthur Loevy Michael Kanovitz Jon Loevy Samantha Liskow LOEVY & LOEVY 312 N. May St., Suite 100 Chicago, IL 60607 (312) 243-5900

RESPECTFULLY SUBMITTED, S/ Michael Kanovitz Attorneys for Plaintiff
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NOTICE OF FILING AND CERTIFICATE OF SERVICE I, Samantha Liskow, an attorney, certify that on November 10, 2008, I filed the attachment Statement of Facts and served this document by ECF electronic filing as to counsel for all parties.
/s/ Samantha Liskow
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 Case 1:06-cv-00552 Document 278 Filed 02/23/2009 Page 1 of 37

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

KIM YOUNG, RONALD JOHNSON,

)

and WILLIAM JONES, on behalf of

)

themselves and a class of others

)

similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

COUNTY OF COOK, MICHAEL F.

)

SHEAHAN, CALLIE BAIRD, SCOTT

)

KURTOVICH, and SALVADOR GODINEZ, )

)

Defendants.

)

Case No. 06 C 552

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge:
Plaintiffs Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and two certified classes, have sued former Cook County Sheriff Michael Sheahan and Sheriff’s employees Callie Baird, Scott Kurtovich, and Salvador Godinez (collectively the Sheriff Defendants), as well as Cook County, under 42 U.S.C. § 1983. Plaintiffs allege violations of their Fourth and Fourteenth Amendment rights during the time they were confined as pretrial detainees at the Cook County Jail (CCJ). Cook County and the Sheriff Defendants have moved separately for summary judgment, and plaintiffs have moved for partial summary judgment on the issue of liability.

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Facts On cross-motions for summary judgment, the Court construes facts and draws inferences “in favor of the party against whom the motion under consideration is made.” In re United Air Lines, Inc., 453 F.3d 463, 469 (7th Cir. 2006). 1. CCJ and the defendants During the class period, CCJ housed, at any given time, approximately 10,000 pretrial detainees in ten residential divisions. Women are housed in two of the divisions, and men are housed in nine of them (one division houses both women and men). New detainees enter CCJ through the Receiving Classification and Diagnostic Center (RCDC). The RCDC contains separate areas for men and women. Between 250 and 350 detainees are booked into and out of CCJ daily, of which approximately 300 detainees are men and thirty to forty are women. Most of the detainees arriving at CCJ have already had a probable cause hearing before a judge. Though defendants contend they do not know the nature of charges pending against detainees when they arrive at the RCDC, the evidence they cite on this point does not support that contention. Rather, the evidence shows that the RCDC staff has information identifying the specific offense(s) with which each detainee has been charged, though a charge is not expressly classified as a felony or a misdemeanor. The Sheriff Defendants were all high-ranking officials in the Sheriff’s office during times relevant to plaintiffs’ claims. Sheahan was the Cook County Sheriff from December 1990 to December 2006. As Sheriff, Sheahan was the custodian of CCJ
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under Illinois law. See 55 ILCS 5/3-6017. Sheahan had policymaking authority over CCJ, including with regard to strip search policies.
Baird was the director of the Cook County Department of Corrections (CCDC) from July 2003 until November 2004.1 She was succeeded by Kurtovich, who served as director from November 2004 until June 2006. In turn, Godinez followed Kurtovich as director of CCDC and continues to hold that position currently. Baird, Kurtovich, and Godinez all had policymaking authority over intake strip searches at CCJ during their respective tenures as directors of CCDC. This responsibility included ensuring CCJ’s policies concerning intake strip searches complied with federal and state law. 2. Procedures and strip searches at CCJ
All new detainees entering CCJ are visually strip searched for the purpose of finding contraband. The search involves a visual inspection of the detainee’s naked body, including his or her body cavities. Most detainees arriving at the RCDC enter CCJ’s general population, regardless of the type of charge they are facing.
Defendants have submitted over 2000 pages of contraband reports, spanning several years, that they contend show a pervasive problem of detainees attempting to bring contraband into CCJ. Contraband, as defined in a jail setting, includes paper money, loose change, and cigarettes, as well as weapons and drugs. The majority of these 2000-plus pages of reports appear to deal with contraband that is not inherently dangerous, such as money.
Defendants contend that weapons and drugs have been “routinely” found in
1Witnesses used the terms “director” and “executive director” of CCDC interchangeably in their depositions. Both terms refer to the same position.
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possession of detainees arriving at the RCDC. Sheriff Defendants’ Local Rule 56.1 Statement ¶ 26. Defendants do not, however, cite to any evidence supporting their claim that these items are “routinely” found. Rather, they cite general testimony about the types of contraband found over the years and refer to the 2000 pages of contraband reports as a group without providing detail regarding how many of those reports concern drugs, weapons, or other dangerous items. As plaintiffs correctly point out, however, it is not the Court’s responsibility to go hunting through a record of this size unguided to try to find a factual dispute. Rather, it is the parties’ obligation to draw the Court’s attention to evidence they contend is relevant. See, e.g., Roger Whitmore’s Auto Serv., Inc. v. Lake County, 424 F.3d 659, 664 n.2 (7th Cir. 2005); Ogdon v. Hoyt, 409 F. Supp. 2d 982, 986-87 (N.D. Ill. 2006). Defendants have not satisfied this obligation by their general citation to the mass of contraband reports.
Similarly, the Sheriff Defendants contend that “[b]ased on the contraband report, misdemeanants were just as likely to carry contraband as detainees charged with more serious crimes.” Sheriff Defendants’ Local Rule 56.1 Statement ¶ 28. To support this contention they cite the testimony of their expert witness and contraband reports as a whole. The citation to defendants’ expert does not support that statement. Defendants’ expert testified that he considered the contraband reports as part of his opinion but did not indicate how many, if any, of those reports involved detainees charged with misdemeanors. And, as noted above, defendants’ blanket citation to the 2000 pages of reports likewise does not properly support their contentions. In their briefs, defendants cite five specific examples from the reports of detainees allegedly charged with misdemeanors having been found with contraband, including weapons or drugs. See
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Sheriff Defendants’ Reply in Supp. of their Mot. for Summ. J. Based on Constitutionality of Search Policies at 4 (citing Sheriff Defendants’ Local Rule 56.1 Statement Ex. 10 at QH 384, 421, 423, 461); Sheriff Defendants’ Mem. in Supp. of their Mot. for Summ. J. Based on Qualified Immunity at 4 (citing Sheriff Defendants’ Local Rule 56.1 Statement Ex. 10 at QH 470). They do not, however, provide any basis to support their contention that these events occur “routinely.” Sheriff Defendants’ Local Rule 56.1 Statement ¶ 26. Moreover, as discussed below, the evidence does not support defendants’ contentions regarding the five suggested examples.
In addition, defendants have provided no information regarding how many of the 2000-plus contraband reports involve detainees charged with non-weapon, non-drug misdemeanors, much less how many such detainees were found to possess weapons or drugs. Plaintiffs correctly point out that the contraband reports do not always indicate whether the contraband was found in a detainee’s body pursuant to a strip search or was instead found in a detainee’s clothes (e.g., loose change in a pocket). The difference is significant; a strip search would not be needed to find items in pockets.
The searches conducted during the class period involved having detainees strip naked, bend over, and spread their buttocks, or by having the detainees squat and cough multiple times. Strip searches were conducted without regard to the seriousness of the charges against an individual detainee and without individualized reasonable suspicion that a strip search was necessary. Defendants contend that the seriousness of the charges against any given detainee had been considered by a judge at bond court prior to the commitment of the detainee to CCJ. Though true, this does not contradict plaintiffs’ contention that new detainees were strip searched at CCJ
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regardless of the level or the nature of the offense charged. As a result, a detainee who (for example) was unable to make bail on a misdemeanor charge was strip searched.
New female detainees arriving at CCJ ordinarily were not strip searched at the RCDC. Rather, they were searched with a body scanning machine at the RCDC and were later strip searched upon arrival at the residential division to which they were assigned. The women were strip searched in open-faced cubicles, a space similar to that provided by a privacy screen in a doctors’ office, with dimensions of approximately five feet by five feet. Each cubicle contained a chair for the women’s clothes, and the detainees could not see individuals in other cubicles. Throughout the class period, the squat-and-cough method was used for female detainees, not the bend-and-spread method.
The search procedures differed for male detainees. They were strip searched both at the RCDC and a second time upon arrival at a housing division. The strip searches at the RCDC were conducted using the bend-and-spread method until approximately February 2006. Since then, male detainees at the RCDC have been searched using the squat-and-cough method. Despite defendants’ contentions to the contrary, the Rule 30(b)(6) witness for CCDC indisputably testified that he was not aware of any justification for using the bend-and-spread method for the men as opposed to the squat-and-cough method prior to February 2006. He also acknowledged that the squat-and-cough method is a more dignified way to conduct a search. The squat-and-cough method is as effective in conducting searches as the bend-and-spread method, and CCJ has not experienced any problems due to the
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change in methodology. At the RCDC, male detainees were lined up in a hallway for their strip search. At
times, detainees would cover the entire length of the hallway wall. Plaintiffs allege that the RCDC staff did not conduct searches until the holding bullpen was full, but defendants have presented evidence that searches sometimes take place before the bullpen was full. Defendants admit that guards took groups of seventy-five men for strip searches in the hallway, but they note that the last group searched at night was typically smaller. Plaintiffs present evidence that strip searches were occasionally conducted in a group of over 100 detainees at the same time, though defendants dispute that more than seventy-five detainees were ever searched at a time. CCDC’s Rule 30(b)(6) witness could not rule out the possibility, however, that more than eighty detainees were sometimes searched in a single group at the RCDC.
The RCDC hallway where male detainees were strip searched in groups did not contain any privacy screens before January 31, 2007. Defendants’ expert, Norman Carlson, is unaware of any other jails that have conducted group strip searches without privacy dividers in the last twenty years. When his deposition was taken in November 2006, CCDC’s Rule 30(b)(6) witness stated that he was unaware whether CCDC had ever investigated the possibility or cost of installing privacy dividers in the hallway where men were strip searched at the RCDC. In or around February 2007, privacy screens were installed in the hallway where groups of men are strip searched at the RCDC.2
2Defendants argue that evidence regarding the privacy screens is inadmissible as a subsequent remedial measure. Federal Rule of Evidence 407 “does not require the exclusion of evidence of subsequent measures when offered [to demonstrate]
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The screens were spaced approximately four feet apart, and the hallway was large enough to accommodate thirty-seven stalls. Since the stalls were installed, the number of men searched at one time has been limited to the number of available stalls. Defendants dispute this is the case, but the evidence they cite does not support their contention. Sometime after January 2007, a body scanning machine was also installed in the male section at the RCDC. The parties dispute how long it takes the machine used on the male side of the RCDC to complete a scan.
Plaintiffs and defendants both compare defendants’ policies to those used by the federal Bureau of Prisons (BOP). Defendants concede that BOP’s procedures for strip searches of incoming detainees are reasonable under the circumstances facing BOP. By 1987, all BOP facilities had privacy screens for all detainees undergoing strip searches. Defendants’ expert witness is unaware of any jurisdictions other than Cook County that conduct strip searches of all detainees charged with misdemeanors without giving them the option to avoid a strip search by remaining outside of the jail’s general population. 3. Plaintiffs’ claims
Plaintiff Jones is a fifty-two year-old man. He was taken to CCJ after failing to comply with a condition of his bond for a misdemeanor traffic violation. During his intake at CCJ, Jones was strip searched with a group of fifty other men. Jones claims
2(...continued) feasibility of precautionary measures, if controverted . . . .” Fed. R. Evid. 407. Defendants argue that use of privacy dividers and body scanning machines were and are not always feasible for a number of reasons. The Court has considered evidence of subsequent measures taken by defendants only to the extent it bears on these feasibility issues, which the Court addresses further in the discussion below.
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that during the search, he and the other men were lined up shoulder-to-shoulder and were required to bend over with their buttocks spread apart while a guard walked up and down the line. Defendants deny that the men in the group strip search would have touched each other and claim they would have been at least six inches apart based on the practice at CCJ. After posting bond later that same night, Jones was released from custody.
Plaintiff Johnson is a forty-four year-old man. He was arrested for felony possession of a controlled substance. Johnson alleges he was falsely arrested. He was taken to CCJ and strip searched in a hallway, allegedly with 100 other men. Johnson claims the search was so crowded that the naked men were touching each other. Defendants cite Johnson’s deposition testimony to contend that the prisoners during the search were not touching each other. This takes Johnson’s testimony out of context. When read in its entirety, it is clear that Johnson only denied that someone reached out and affirmatively tried to touch him. See Sheriff Defendants’ Resp. to Pls.’ 56.1 Statement Ex. 4 at 59-64. He unequivocally stated the crowding of the search resulted in poisoners touching each other: “Q. Nobody touched you or nobody touched you in the way that you were offended by? A. Offended by. I mean it was so crowded, I was touched but it wasn’t done offensively.” Id. at 59:23-60:2.
Plaintiff Young is a forty-seven year-old woman. She was arrested for failure to appear in court on a misdemeanor traffic violation and was taken to CCJ. While waiting for delivery of $200 for her bond, Young was subjected to an intake strip search.
On April 25, 2007, the Court, pursuant to Federal Rule of Civil Procedure 23, certified two classes of plaintiffs. Class I consists of “all males who were subjected to a
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strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.” Dkt. No. 92 at 16. Jones and Johnson are the class representatives for Class I. Class II consists of “all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.” Id. Jones and Young are the class representatives for Class II.3
In addition to information about the class representatives, plaintiffs have submitted sworn declarations from over 500 men, selected randomly, who were strip searched at the RCDC during the class period. Defendants dispute the factual content of these declarations based on testimony regarding the general experiences of CCJ officials and employees, but not based on first-hand knowledge concerning the specific allegations contained in the declarations. Cook County also repeatedly contends that none of the affidavits are trustworthy, but it has submitted no evidence in support of that contention.
One RCDC employee testified that detainees have about six inches of space between each other during the strip searches. In nearly ninety percent of the declarations submitted by plaintiffs, the declarants claimed that the strip searches at the RCDC were so crowded that detainees made physical contact with one or more other
3Cook County contends that Jones and Young were not arrested on misdemeanors and cannot represent Class II. The Court rejected that argument in granting the motion for class certification. Young v. County of Cook, No. 06 C 552, 2007 WL 1238920, at *6 (N.D. Ill. Apr. 25, 2007). Cook County has presented no new evidence that would call for reconsideration of the previous ruling.
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detainees. Most declarants also reported being able to see other detainees’ naked bodies. Cook County contends that the detainees do not see each other because they are ordered to face the wall or look at the floor.
Though not necessarily experienced by the class representatives, many of the declarations submitted by plaintiffs detail additional problems during the group strip searches at the RCDC.4 Many of the declarants complained of strong, foul odors during the strip searches. The declarants also claim that bodily fluids were often present during the male group strip searches. Defendants dispute how often such fluids – including vomit, diarrhea, and blood – were actually present during searches. Over 400 of plaintiffs’ declarants also claim that the guards used insults or abusive language during strip searches. These included insults about body odor, anatomy, sexual orientation, and race. On occasion, entire groups would be required to repeat the strip search, or portions of it, after one detainee made a mistake during the process. Plaintiffs contend that dogs were used to threaten, frighten, and intimidate detainees during strip searches and that at times the dogs were not muzzled or leashed. Defendants deny these contentions and claim that dogs were only used occasionally in the search area.
Plaintiffs also claim that the Sheriff Defendants never looked into how often
4To dispute most of the allegations made by the declarants, defendants rely only on the deposition testimony of the class representatives – specifically, the absence of testimony by the class representatives regarding similar allegations. Unless they denied observing those conditions, the fact that the class representatives did not testify about them does not mean they did not experience or observe them; rather, it reflects only that defendants’ counsel did not ask questions about them during the depositions. Moreover, the fact that a class representative did not experience a particular adverse condition at the RCDC is not evidence that the same was true of the declarants.
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individuals accused of misdemeanors brought contraband items to CCJ. Defendants dispute this, citing generally to exhibit 10 to the Sheriff Defendants’ Local Rule 56.1 statement. As noted above, defendants’ submissions provide minimal detail about these 2000-plus pages of reports. The reports do not indicate whether the detainees identified in them were charged with misdemeanors or felonies. Moreover, defendants cite no evidence indicating that CCJ officials considered these reports or other similar information before adopting the blanket strip search policy for all detainees, including those charged with misdemeanors. Indeed, many of the contraband reports are from a period long after the strip search policy had been implemented. CCDC’s Rule 30(b)(6) witness testified that he could not recall a specific instance of a strip search of a detainee charged with a non-drug, non-weapons misdemeanor that resulted in the discovery of drugs or weapons.
Discussion Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). To determine whether a genuine issue of material fact exists, the Court must view the record in the light most favorable to the nonmoving party and draw reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). A genuine issue of triable fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,
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477 U.S. at 248. “The fact that plaintiff and defendants have filed cross-motions for summary judgment does not change the applicable standard. The Court must consider each motion independently and must deny both motions if there is a genuine issue of material fact.” Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 531 F. Supp. 2d 949, 953 (N.D. Ill. 2007) (citations omitted). 1. Motion to strike plaintiffs’ Local Rule 56.1 statement
The Sheriff Defendants have moved to strike plaintiffs’ Local Rule 56.1 statement and ask the Court to deny plaintiffs’ motion for summary judgment due to their alleged failure to comply with the local rule. They first take issue with paragraphs 1-8, 16-28, and 126-29 of plaintiffs’ statement on the ground that the facts contained in those paragraphs are immaterial. The Sheriff Defendants’ only explanation regarding immateriality is that plaintiffs do not cite these paragraphs in their summary judgment brief. Nothing in the local rule, however, requires a summary judgment movant to cite to each paragraph of its statement of facts in its motion or brief. Moreover, the paragraphs the Sheriff Defendants seek to strike clearly contain material facts concerning the plaintiffs, their claims, and the defendants’ procedures and policies – facts that are so fundamental that they form the basis of the parties’ dispute.
The Court denies the motion to strike with respect to paragraphs 1-8, 16-28, and 126-29. The Court grants the motion with respect to paragraph 77 because it is immaterial for present purposes. In that paragraph, plaintiffs note that defendants’ expert witness was the main defendant in the seminal Supreme Court case of Bell v. Wolfish, 441 U.S. 520 (1979).
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Next, the Sheriff Defendants contend that a number of paragraphs in plaintiffs’ statement do not comply with Local Rule 56.1 because they contain multiple factual assertions or multiple sentences and are overly descriptive of the evidence cited for support. To the extent these are technical violations of Local Rule 56.1 – it is not clear that they are – the Court, in its discretion, chooses to excuse them. See Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (noting that district courts have discretion to overlook failure to comply strictly with local rules regarding summary judgment). The Court also notes that defendants have not complied with Local Rule 56.1 in every paragraph of their factual statements. The Court has chosen to consider all proper evidence submitted by each of the parties, regardless of whether it was presented in strict compliance with Local Rule 56.1.
The Sheriff Defendants also contend that paragraphs 43-54 of plaintiffs’ factual statement are inadmissible hearsay. Those paragraphs report statements made in articles that appeared in the Chicago Tribune. Plaintiffs counter that the articles are not hearsay because they are only submitted for purposes of demonstrating that defendants were on notice regarding claims about the conditions at CCJ – an issue that does not appear to be seriously disputed. The Court declines to strike paragraphs 4354 but has not considered those paragraphs for purposes of this motion.
Last, the Sheriff Defendants challenge plaintiffs’ submission of affidavits by class members regarding conditions at CCJ and, specifically, their experiences during strip searches. The Sheriff Defendants claim it is inappropriate for the Court to consider these affidavits because none of them were submitted by detainees who were processed and searched at the exact same time as the class representatives.
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Defendants have not, however, cited any authority to support their contention, and their argument makes no sense: the claims of the class concern defendants’ practices over an extended period. In any event, the Seventh Circuit and other judges in this district have considered similar affidavits, without commenting on the propriety of doing so. See, e.g., Little v. Walker, 522 F.2d 193, 194 (7th Cir. 1977) (considering affidavits of putative class members regarding attacks in Illinois prisons on review of order dismissing complaint); Bullock v. Sheahan, 568 F. Supp. 2d 965, 975 (N.D. Ill. 2008) (considering affidavits submitted by class members regarding manner and conditions of strip searches in support of summary judgment motion); Doe v. Calumet City, 754 F. Supp. 1211, 1213-15 (N.D. Ill. 1990) (same). It is appropriate to consider the affidavits of class members submitted in support of plaintiffs’ motion for summary judgment to the extent those affidavits contain admissible evidence. The Court denies the Sheriff Defendants’ motion to strike these affidavits. 2. Class II plaintiffs
Plaintiffs and defendants both contend they are entitled to summary judgment with respect to the claims of the Class II plaintiffs – detainees charged with misdemeanor offenses not involving drugs or weapons who were strip searched, including a visual body cavity search, upon intake into CCJ. Defendants admit that all detainees entering CCJ, including those in Class II, are strip searched. It is also undisputed that these searches were conducted without making individualized reasonable suspicion determinations.
Pretrial detainees retain their constitutional rights, including the protections of the
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Fourth Amendment against unreasonable searches and seizures. Bell, 441 U.S. at 545; Thompson v. County of Cook, 412 F. Supp. 2d 881, 888-89 (N.D. Ill. 2005). Those rights, however, are limited due to the realities of confinement, most importantly the need to maintain security and order in jails and prisons. Bell, 441 U.S. at 545-46 (“There must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.”) (internal quotation omitted). Plaintiffs’ claims must be evaluated in this light, giving deference to the expertise of jail and prison officials. Id. at 546-48. In this regard, the Supreme Court prescribed a balancing test:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559. In Bell, the Supreme Court determined that strip and body cavity searches of pretrial detainees that had engaged in contact visits with visitors from outside the jail complied with constitutional standards. Id. at 558. The Seventh Circuit has stated that “the balancing test prescribed in [Bell] does not validate strip searches in detention settings per se.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). There are “few exercises of authority by the state that intrude on the citizen’s privacy and dignity as severely as” visual body cavity and strip searches. Id. (citing authority describing strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission”). “The more intrusive the search, the closer
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governmental authorities must come to demonstrating probable cause for believing that the search will uncover the object for which the search is being conducted.” Id. at 1273 (citing Terry v. Ohio, 293 U.S. 1, 18 n.15 (1968)).
In Mary Beth G., the plaintiffs claimed that their Fourth Amendment rights were violated by a City of Chicago policy to strip search all female detainees placed in Chicago Police Department detention facilities, without individualized suspicion for conducting the searches. Id. at 1267-68, 1273. The plaintiffs had been charged with misdemeanors and were being detained until they could make bond. Id. at 1272. The city attempted to justify the strip search policy based on security concerns. Id. at 127273. There was not, however, evidence that the women being strip searched posed serious security risks. Accordingly, the Seventh Circuit held the searches “bore an insubstantial relationship to security needs so that, when balanced against . . . privacy interests, the searches cannot be considered ‘reasonable.’” Id. at 1273.
Following Bell, courts of appeal have generally ruled that a detainee held on a misdemeanor charge not related to weapons or drugs may not be strip searched absent individualized reasonable suspicion that he or she is carrying such contraband. See, e.g., Id. at 1273; Roberts v. State, 239 F.3d 107, 112 (1st Cir. 2001); Shain v. Ellison, 273 F.3d 56, 62-66 (2d Cir. 2001); Amaechi v. West, 237 F.3d 356, 364-65 (4th Cir. 2001); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir. 1993); Maters v. Crouch, 872 F.2d 1248, 1253-54, 1257 (6th Cir. 1989); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.
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1985).5 The crux of these cases is that given the extreme intrusion into personal privacy that a strip search or body cavity search entails, people charged with minor offenses that do not involve drugs or weapons are not subject to such searches absent individualized reasonable suspicion.
A number of courts in this district, including this one, have come to the same conclusion. See Bullock, 568 F. Supp. 2d at 974-76 (granting summary judgment for plaintiffs on claim that policy of strip searching all detainees reentering CCJ while waiting to be discharged after a court appearance violated Fourth Amendment); Thompson v. County of Cook, 428 F. Supp. 2d 807, 812-15 (N.D. Ill. 2006); Calvin v. Sheriff of Will County, 405 F. Supp. 2d 933, 938-45 (N.D. Ill. 2005) (blanket policy of strip searching detainees arrested for failure to appear in court for misdemeanor and traffic violation cases violated Fourth Amendment); Gary v. Sheahan, No. 06 C 7294, 1998 WL 547116, at *10-13 (N.D. Ill. Aug. 20, 1998) (policy of strip searching female inmates following judicial determination that they must be released from custody violated Fourth Amendment); Doe v. Calumet City, 754 F. Supp. at 1220-21 (same).
Defendants challenge the continuing validity of Mary Beth G. and similar cases, relying on the Eleventh Circuit’s decision in Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc). In Powell, the Eleventh Circuit, acknowledging Mary Beth G. and other cases, held that there is no need, when evaluating a Fourth Amendment
5The Ninth Circuit has gone even further, finding unconstitutional a police department policy of strip searching all detainees charged with a felony without any analysis of individualized suspicion. See Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 716 (9th Cir. 1990), overruled in part on other grounds, Hunter v. Bryant, 502 U.S. 224 (1991). Plaintiffs do not argue for such a broad rule in this case.
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challenge to strip searches of detainees, to consider whether the detainees have been arrested for misdemeanors or for more serious crimes. Id. at 1309-10. This Court, even if it were so inclined, has no authority to disregard Mary Beth G. – even though the Eleventh Circuit believes that case was decided incorrectly.
Defendants focus on the need to maintain security at CCJ, especially with respect to the prevention of violence, as a justification for strip searching the Class II plaintiffs. As noted above, this is an important concern at a facility like CCJ, one that can justify strip searches of detainees. The problem with defendants’ contention in this case, however, is that they have not provided an evidentiary basis from which any reasonable jury could find the searches of Class II plaintiffs were reasonable, either with respect to misdemeanor detainees in general or each individual detainee, under the balancing test established in Bell and Mary Beth G.
Courts have generally required jail officials to have either individualized suspicion or suspicion arising from the nature of the charged offense before conducting a strip search of a detainee charged with a misdemeanor that does not involve drugs or weapons. See, e.g., Shain, 273 F.3d at 63; Roberts, 239 F.3d at 112 (requiring “a reasonable suspicion that the individual inmate is concealing contraband”); Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir. 1989) (analysis of validity of strip search justification requires “consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband”); Stewart, 767 F.2d at 156-57 (strip searches of “minor offenders awaiting bond when no reasonable suspicion existed that
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they as a category of offenders or individually might possess weapons or contraband” violated Fourth Amendment); Bullock, 568 F. Supp. 2d at 975 (requiring “individualized reasonable suspicion”); Thompson, 412 F. Supp. 2d at 890. Defendants have not presented any evidence that reasonable suspicion existed to strip search either members of Class II in general or class representatives Young and Jones specifically. Nor have defendants attempted to present evidence that individualized suspicion existed to conduct a strip search of any particular member of Class II.
Lacking any evidence of individualized suspicion of the Class II representatives or the members of Class II, defendants raise several additional arguments as to why security concerns at CCJ necessitate the blank strip search policy. In particular, defendants cite to the 2000-plus pages of contraband reports to support their argument that security at CCJ requires strip searching all detainees charged with misdemeanors that do not involve weapons or drugs. Those reports, however, would not enable a reasonable jury to reach that conclusion. First, many, if not most, of the reports indicate that the contraband found was money, not drugs or weapons that could lead to violence at CCJ. Though CCJ has an interest in preventing detainees from bringing into the jail non-dangerous contraband, such as money or cigarettes, that type of contraband does not pose the same security risk so as to justify highly intrusive strip searches of misdemeanor detainees absent individualized reasonable suspicion.
Second, the reports do not indicate the nature of the charges against the detainees who possessed contraband. Thus there is no evidence that members of Class II or misdemeanor detainees – a subset of all CCJ detainees – routinely possessed contraband. The Sheriff Defendants cite specifically to only five of the
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contraband reports in their briefs as specific evidence that misdemeanor detainees possessed drugs or weapons. The reports they cite, however, do not indicate the nature of the charges against the detainees in question. Without evidence of the nature of those charges, there is no basis upon which a jury reasonably could find that security concerns justify conducting extremely invasive searches of all Class II members. Though a history of security and violence issues might, along with other considerations, justify a blanket strip search policy, defendants have not presented any evidence that would justify such a policy with respect to misdemeanor detainees.
Finally, the reports do not always indicate whether the contraband was discovered as result of a strip search or instead was found in a detainee’s clothing or willingly surrendered. In the five reports cited in the Sheriff Defendants’ briefs, two of them involved finding contraband in pockets or shoes, and in one instance, the detainee voluntarily handed the contraband to officers. One report does not state whether the contraband was found in the detainee’s body cavities or clothes. Only one of those five reports involved contraband discovered during a squat-and-cough visual body cavity search. This is insufficient, as a matter of law, to justify highly intrusive strip searches of detainees charged with minor offenses without individualized reasonable suspicion that they possess contraband or pose a security risk. Roberts, 239 F.3d at 112 (“The lack of specific instances where a body cavity search was necessary to discover contraband supports a finding that the policy of searching all inmates is an unreasonable one.”); Calvin, 405 F. Supp. 2d at 944.
Defendants also argue that strip searches of the persons in Class II are justified because members of that class were admitted to the general population at CCJ, where
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they would come into contact with detainees facing more serious charges and might be attempting to smuggle contraband to them. Though the Supreme Court in Bell recognized the security risk posed by detainees that could attempt to smuggle dangerous contraband into jail following a contact visit, Bell, 441 U.S. at 558-60, the Class II plaintiffs present a different situation. Unlike detainees returning from contact visits who may have planned to use such a visit in an effort to obtain contraband and hide it in a body cavity, there is no basis to think the Class II plaintiffs knew they were about to be arrested, depriving them of the opportunity to hide something in their bodies. See Shain, 273 F.3d at 63; Thompson, 412 F. Supp. 2d at 890. The unexpected nature of the detainees’ arrest also undermines any deterrence argument, contrary to the situation with the plaintiffs in Bell, who could have used scheduled contact visits as an opportunity to attempt to smuggle contraband. Shain, 273 F.3d at 63.
Second, though intermingling with general prisoners may be one factor in evaluating the reasonableness of a strip search policy, that fact standing alone is not enough to justify strip searches in the absence of individualized reasonable suspicion. See Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993); Masters, 872 F.2d at 1254; Calvin, 405 F. Supp. 2d at 943.6 It is telling that defendants’ own expert testified that he is not aware of any jail that conducts strip searches of all detainees charged
6One ruling in this district implies that strip searches may be reasonable where the detainee will intermingle with the general jail population. See Roscom v. City of Chicago, 570 F. Supp 1259, 1262 (N.D. Ill. 1983). That case did not address the issue at great length or consider whether prisoner mingling renders strip searches reasonable per se. Moreover, Roscom was decided before the Seventh Circuit’s ruling in Mary Beth G., which does not prescribe such a rule.
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only with misdemeanors without giving those detainees the option to remain outside of the jail’s general population.
Moreover, courts have noted that a general policy to place detainees charged with minor offenses in the general jail population along with persons charged with more serious crimes does not justify a blanket strip search policy. See Roberts, 239 F.3d at 112-13; Chapman, 989 F.2d at 396; Calvin, 405 F. Supp. 2d at 944-45 (holding that “administrative concerns such as ‘space constraints’ are not sufficient to justify blanket strip search policies”). The Court finds the reasoning of those cases persuasive in light of past rulings by the Supreme Court and the Seventh Circuit. As discussed above, Bell and Mary Beth G. require this Court to balance CCJ’s interests against the severity of the searches that were conduced on members of Class II. Defendants have not offered an explanation or any evidence as to why all misdemeanor detainees must be held in CCJ’s general population. Instead, they rely on their general contentions about jail security, exactly the kind of reasoning the courts cited above found insufficient to justify blanket strip search policies for misdemeanor detainees. After balancing the interests in this case, the Court is persuaded that the CCJ’s choice of a policy that permits misdemeanor detainees to have contact with detainees charged with more serious offenses does not come close to outweighing the serious infringement on a misdemeanor detainee’s Fourth Amendment rights that occurs when a strip search is conducted.7 No reasonable jury could reach the opposite conclusion.
7The Court also notes that Illinois law (though it does not affect plaintiffs’ constitutional claims) requires, whenever possible, that detainees charged with minor offenses be housed separately from those charged with felonies. See 20 Ill. Admin.
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If CCDC officials suspect a particular detainee may be attempting to smuggle contraband into the jail’s general population (e.g., based on criminal history), they may have reasonable suspicion to conduct a strip and body cavity search of that detainee. See Calvin, 405 F. Supp. 2d at 944. But the possibility that this could occur in a given case does not justify conducting such searches against all detainees charged with misdemeanors that do not involve weapons or drugs.
Finally, defendants argue that the strip search procedure at CCJ is justified because a judge has already found probable cause that an offense has been committed by a detainee. The First Circuit found this was not a compelling reason that would justify a strip search of a detainee being held on a minor traffic violation. Roberts, 239 F.3d at 111. The Court agrees with the First Circuit. The existence of probable cause that a detainee committed a misdemeanor, by itself, has nothing to do with whether that detainee might have contraband on him or might attempt to smuggle contraband into CCJ. Defendants offer no explanation why a finding of probable cause that an individual has committed a misdemeanor unrelated to drugs or weapons provides any basis for conducting a highly intrusive strip or body cavity search of that detainee.
In light of Mary Beth G. and numerous similar rulings in other cases, the strip searches of all detainees held on misdemeanor or lesser charges not involving drugs or weapons, without individualized reasonable suspicion, violated their Fourth Amendment rights as a matter of law. No reasonable jury could find otherwise. As one judge in this
7(...continued) Code § 701.70(b)(4).
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district summarized: The facts in cases where searches have been upheld suggest some reasonable cause on the part of the authorities to suspect that the detainees might be trying to smuggle weapons or contraband into the jail. Such cause may be furnished by the nature of the offense or the nature of the offender.
Simenc v. Sheriff of DuPage County, No. 82 C 4778, 1985 WL 4896, at *3 (N.D. Ill. Dec. 9, 1985). Defendants have not presented any evidence that blanket strip searches are necessary with respect to the members of Class II generally. Nor have they presented evidence of individualized suspicion of the class representatives or other members of Class II to justify the strip searches. Weighing the nature of the searches at issue against the justifications and evidence provided by defendants, no reasonable jury could find defendants’ policies with respect to the Class II plaintiffs complied with the requirements of the Fourth Amendment. Accordingly, the Class II plaintiffs are entitled to summary judgment on their Fourth Amendment claims. 3. Class I plaintiffs
Class I includes “all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.” Dkt. No. 92 at 16. Plaintiffs challenge the searches of the Class I members under the Fourth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Both sides contend they are entitled to summary judgment with respect to the Class I plaintiffs.
a. Fourth Amendment For purposes of the summary judgment motions, plaintiffs concede that it is
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proper for CCJ to conduct strip searches of the Class I members in groups. They challenge the manner in which those group searches were conducted. Defendants argue that the manner in which the searches were conducted did not violate the Fourth Amendment as a matter of law.
Bell v. Wolfish is again the starting point for the Court’s analysis. The Supreme Court made clear, otherwise permissible strip “searches must be conducted in a reasonable manner.” Bell, 441 U.S. at 560; see also Campbell v. Miller, 499 F.3d 711, 718 (7th Cir. 2007) (finding unreasonable a strip search conducted in the backyard of a house in full view of the public).
The full extent of the circumstances of the group searches of the Class I members is factually disputed. The following facts concerning those searches, however, are undisputed: (1) men at CCJ have been routinely strip searched in groups of up to at least seventy-five individuals; (2) until approximately February 2007, there were no privacy screens in the hallway where the members of Class I were searched at the RCDC – meaning they were searched in full view of the other detainees in the group being searched8; (3) on occasion, bodily fluids have been present in the hallway where the searches of the Class I members occurred; (4) the members of Class I had, at times, no more than six inches of space between each other during the strip
8Defendants attempt to dispute whether Class I members could see each others’ naked bodies by stating that the detainees are ordered to look forward or down at the floor. Though defendants are entitled to reasonable inferences in response to plaintiffs’ motion, no reasonable fact finder could infer that seventy-five naked men standing in close quarters for purposes of a strip search will not, incidental to those circumstances, observe other men’s naked bodies. Such an inference would defy common sense. Regardless, it is undermined by the unrebutted class member declarations submitted by plaintiffs.
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searches before the privacy screens were installed; (5) individuals in the group searches, prior to the installation of the privacy screens, would accidentally bump into and touch each other; and (6) prior to some time in 2006, men were searched using the less dignified bend-and-spread method, whereas women were searched using the squat-and-cough method.
In light of these undisputed facts, the Court finds that the strip searches of the members of Class I before the privacy screens were installed at the RCDC were unreasonable and violated the Fourth Amendment as a matter of law. During that period, the class members, who were undergoing one of the most intrusive types of searches the government may permissibly conduct, were subjected to conditions that greatly enhanced their discomfort and humiliation. They were herded together with dozens of other men and forced to strip and bend over or squat in front of a large group, with less than a foot of space between them.
Though the officials at CCJ were entitled to conduct these strip searches (except as to Class II members) so long as they did so in a safe and efficient manner, the extreme conditions of the searches violated the Fourth Amendment. The search in Campbell was not conducted at a jail, but that case is still instructive for the Seventh Circuit’s clear denunciation of the search of a naked detainee in public view. Campbell, 499 F.3d at 718-19 (collecting cases); see also Amaechi, 237 F.3d at 361-62 (noting that reasonableness of strip search depends in large part on whether it was conducted in private). “When [strip] searches are conducted in public, the intrusion is considered even more severe.” Bullock, 568 F. Supp. 2d at 975 (citing Campbell, 499 F.3d at 71819) (holding strip search at CCJ violated Fourth Amendment as a matter of law).
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Defendants’ attempt to distinguish Campbell on the basis that the search in that case occurred at a private residence is unpersuasive. Finding that strip searches in “public” violate constitutional principles, the Seventh Circuit cited cases where the “public” search was conducted at a detention facility. See Campbell, 499 F.3d at 719 (citing Hill v. Bogans, 735 F.2d 391, 392, 395-95 (10th Cir. 1984); Logan v. Shealy, 660 F.2d 1007, 1010 (4th Cir. 1981)).
Elliott v. Lynn, 38 F.3d 188 (5th Cir. 1994), cited by defendants, provides an instructive contrast to the pre-privacy screen searches conducted at the RCDC. In Elliott, the warden ordered an institution-wide “shakedown” at a Louisiana penitentiary that included strip searching every prisoner incarcerated there. Id. at 189-90.9 This was done in response to a rash of murders, stabbings, and other attacks among the general population at the prison. Id. The plaintiffs in Elliott did not challenge the propriety of conducting strip searches, just the manner in which they were conducted. Id. at 190. Due to the need to search all 3,164 prisoners as quickly as possible, the prisoners were searched in groups of five or six in one area of the prison while fifty-five other inmates were present awaiting inspection. Id. There is no indication that the prisoners were piled together without personal space while being searched; rather, the searches took place in small groups while other prisoners stood apart from those being searched. The Fifth Circuit found the searches were reasonable under the circumstances, especially considering the need to conduct them quickly. Id. at 191-92.
9As convicted prisoners, those searched in Elliott enjoyed even more limited constitutional protections against unreasonable searches than the pretrial detainees in the current case. See Thompson, 412 F. Supp. 2d at 888-89 (collecting cases).
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The current case involves far less pressing needs, as there is no contention that violence would erupt if the searches of the Class I plaintiffs were conducted with fewer detainees at a time. Though other prisoners were present and possibly watching the searches in Elliott, that was due only to the emergency situation. Even facing such circumstances, the prison officials in Elliot searched only five to six men at a time, thereby calculating their efforts to preserve some dignity. Defendants submit no evidence that they made any such efforts during the period before they installed the privacy screens.
Defendants contend that privacy screens or partitions are not constitutionally required, and state, in this regard, that “[i]institutional security trumps detainees’ desires.” Sheriff Defendants’ Resp. to Pls.’ Mot. for Summ. J. at 12. This contention implicates the feasibility of using screens in the RCDC hallway because defendants are arguing that the desire for privacy screens must give to way to security concerns. Such a contention, however, is undermined by the fact that in 2007, privacy screens were installed in the hallway at the RCDC and have been used without problems since that time. Moreover, defendants’ expert witness testified that he was unaware of any facility (other than CCJ) that has conducted group strip searches without providing some sort of privacy partitions for the last two decades.
Based on the undisputed facts, no reasonable jury could find that the group strip searches of the Class I members prior to the installation of the privacy screens complied with the requirements of the Fourth Amendment. Accordingly, the Court enters summary judgment as to liability in favor the Class I plaintiffs for searches occurring before the installation of the privacy screens in the hallway at the RCDC in or
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around February 2007. The Court will not, however, grant either side’s motion for summary judgment
with respect to Class I’s alleged Fourth Amendment violations for the period after the privacy screens were installed at the RCDC. Disputed questions of material facts exist with respect to those searches. Those disputed facts include, at a minimum, (1) whether the privacy screens were always used; (2) the frequency and prevalence of bodily fluids present in the strip search area; (3) the alleged use of dogs for intimidation and humiliation purposes; and (4) other allegedly abusive conduct by CCJ officials. Though any one of these allegations, if proven by plaintiffs, arguably might not cause the searches to violate the Fourth Amendment, proof of some or all of them might be sufficient to do so. Accordingly, due to the existence of disputed factual issues, the Court denies plaintiffs’ and defendants’ motions for summary judgment on this part of Class I’s claims.
b. Equal protection The Class I plaintiffs also claim that the manner of the group strip searches conducted at the RCDC violates the Equal Protection Clause of the Fourteenth Amendment because male detainees were searched in a significantly different manner than female detainees, without justification for doing so. One difference between the male and female searches is that the female searches were conducted with privacy screens long before the men. Another difference has to do with the use of body scanning machines. As with the Class I plaintiffs’ Fourth Amendment claims, the facts are undisputed with respect to certain aspects of the strip searches prior to the time when the privacy screens were installed at RCDC. Accordingly, the Court will analyze
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the propriety of summary judgment based on those limited, undisputed facts. It is undisputed that the strip searches policies upon entry to CCJ expressly
treated men and women differently. When a “challenged policy expressly discriminates . . . on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982). A proponent of a policy that treats men and women in a significantly different way, as in this case, “must carry the burden of showing an exceedingly persuasive justification for the differing treatment. The burden is met only by showing at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Id. at 724 (internal quotations omitted); see also Mary Beth G., 723 F.2d at 1273-74 (applying the same rule in context of strip search policies). This comports with the general rule that gender-based classifications are subject to heightened scrutiny. Varner v. Ill. State Univ., 226 F.3d 927, 934 (citing J.E.B. v. Alabama, 511 U.S. 127, 136 (1994)); Bullock, 568 F. Supp. 2d at 973.
Defendants cite institutional security as a justification for the difference in the strip search policies between male and female detainees. Specifically, defendants focus on the greater number of men held at CCJ and processed through the RCDC. Defendant Sheahan made a similar argument in Bullock. See Bullock, 568 F. Supp. 2d at 972, 974 & n.2. Defendants certainly had a legitimate interest in processing detainees entering CCJ in a safe and efficient manner. They have not, however, presented any evidence that the difference in search policies between men and women
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“substantially furthers” that interest. See J.E.B., 511 U.S. at 136-37; Mary Beth G., 723 F.2d at 1273-74. Though it is undisputed that CCJ houses more men than women, that fact alone does not explain why, prior to the installation of the privacy screens, men were strip searched in such large groups, without any privacy, and packed together so tightly that they could not help seeing and touching each other. Nor does it explain why the squat-and-cough was not utilized for male detainees until long after it was used for female detainees. No reasonable juror could find that such a search furthers a substantial governmental interest.
Defendants also cite the fact that men and women are searched in different areas of CCJ as justification for the different policies. Several courts in this district have previously determined that such “logistical” concerns cannot justify the treatment of a specific group of detainees. See Bullock, 568 F. Supp. 2d at 973-74; Gary, 1998 WL 547116 at *2, 9.10 This Court agrees. Again, the logistics of processing male and female detainees in different areas does not justify treating men and women differently.
Cook County also contends that women’s menstrual cycles justify a policy affording female detainees greater privacy. This is not an “exceedingly persuasive” justification for the difference between the male and female searches. Male detainees also present hygiene issues. The fact that some female detainees present one different or additional hygiene issue is insufficient to justify the stark gender-based differences between the search policies prior to the time the privacy screens were
10The cases from the Fifth, Sixth, Eighth, and Ninth Circuits that the Sheriff Defendants cite in support of their contentions are inapposite, because none of them concerned disparate gender treatment with respect to strip search policies.
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installed in the male search area at the RCDC. Last, defendants contend that the differences in charges against men and
women justify the differing strip search policies. Apart from the inconsistency that arises from defendants’ desire to consider the nature of detainees’ charges with respect to Class I and their contrary arguments with respect to Class II, defendants fail to cite any evidence to support the contention that men and women were charged with materially different crimes or posed different security risks.
The undisputed facts show, as a matter of law, that the strip searches of the Class I members prior to the installation of privacy screens at the RCDC violated the Equal Protection Clause of the Fourteenth Amendment. The Court enters summary judgment in favor of plaintiffs on that basis. The Court denies both parties’ motions for summary judgment, however, with respect to remainder of the Class I plaintiffs’ equal protection claims, due to the existence of disputed material facts. Those facts include those that precluded summary judgment for either side on part of the Class I plaintiffs’ Fourth Amendment claims, as well as disputed facts concerning the viability of using body scanning machines for male detainees and the necessity of subjecting male detainees to two strip searches.
c. Unlawful punishment The Class I plaintiffs contend that certain aspects of the strip search procedures constitute unlawful punishment. The Eighth Amendment does not apply to pretrial detainees. Bell, 441 U.S. at 535 n.16; Tesch v. County of Green Lake, 157 F.3d 465, 472-73 (7th Cir. 1998). Pursuant to the Due Process Clause of the Fourteenth Amendment, however, pretrial detainees may not be punished, except in connection
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with infractions committed while in custody. Bell, 441 U.S. at 535; see also Thompson, 412 F. Supp. 2d at 887 (collecting authorities). Due process protections for pretrial detainees in this case are at least as great as the protections afforded to convicted criminals under the Eighth Amendment. Tesch, 157 F.3d at 473. Pretrial detainees “have an interest in being free from gratuitously severe restraints and hazards.” Hart v. Sheahan, 396 F.3d 887, 893 (7th Cir. 2005). Plaintiffs do not have to establish intent. See id. at 892 (“Punishment is not the only motive for brutal treatment. But whatever the motive is, if the brutal treatment is gratuitous, due process in its substantive sense has been violated.”).
As with the Class I plaintiffs’ Fourth Amendment claims, the Court denies summary judgment with respect to the post-privacy screen period, in which significant facts are disputed. For the policies during the earlier period to the extent there are no material factual disputes (the same as recounted above in the Fourth Amendment analysis), it is appropriate to enter summary judgment in favor of the Class I plaintiffs. Again it is undisputed that members of Class I, prior to the installation of privacy screens in the RCDC hallway, were strip searched in large groups, without any minimal form of privacy, where they saw and touched one another. No reasonable jury could find that this policy was “reasonably related to a legitimate goal.” Tesch, 157 F.3d at 474 (quotation omitted). Rather, this is an example of “unreasonably harsh treatment meted out to inmates who have not yet been convicted of any crime.” Hart, 396 F.3d at 892.
Accordingly, the Court grants summary judgment to the Class I plaintiffs on their
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unlawful punishment claim for the period prior to the installation of the privacy screens at the RCDC and otherwise denies their motion on the punishment claims. The Court denies defendants’ motions for summary judgment on the punishment claims. 4. Qualified immunity
The Sheriff Defendants filed a second summary judgment motion contending they are entitled to qualified immunity. Plaintiffs have sued the Sheriff Defendants in their individual and their official capacities. “[I]t is well established that the qualified immunity doctrine does not apply to official capacity claims.” Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001) (quotation omitted). The Court therefore denies Sheriff Defendants’ motion with respect to plaintiffs’ official capacity claims. Plaintiffs concede the Sheriff Defendants’ motion with respect to plaintiffs’ individual capacity claims. Accordingly, the Sheriff Defendants are entitled to summary judgment on qualified immunity grounds in their individual capacities. 5. Cook County’s liability
In its summary judgment motion, Cook County contends there is no basis to hold it liable for constitutional violations that occurred at CCJ. Under Illinois law, the Cook County Sheriff is an elected county officer. Cook County cannot be held vicariously liable for the Sheriff’s, or his staff’s, conduct. Moy v. County of Cook, 159 Ill. 2d 519, 528-32, 640 N.E.2d 926, 929-31 (1994); see also Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995). Thus Cook County is entitled to summary judgment on count seven of plaintiffs’ third amended complaint, which seeks to impose liability against Cook County under the doctrine of respondeat superior.
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Cook County is mistaken, however, when it contends that plaintiffs have not asserted a claim for indemnification against it. Count eight of the third amended complaint asserts such a claim. Cook County acknowledges that with respect to section 1983 claims against county sheriffs, Illinois counties have a duty to indemnify judgments, rendering the counties necessary parties. Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003). Accordingly, Cook County’s motion for summary judgment is denied with respect to count eight.
Conclusion For the foregoing reasons, the Court grants the Sheriff Defendants’ motion to strike plaintiffs’ Local Rule 56.1 statement with respect to paragraph 77, but otherwise denies that motion [# 259]. The Court grants the Sheriff Defendants’ motion for summary judgment based on qualified immunity with respect to the Sheriff Defendants in their individual capacities but otherwise denies that motion [# 206]; denies the Sheriff Defendants’ motion for summary judgment based on constitutionality of the search policy [# 204]; and grants Cook County’s motion for summary judgment with respect to plaintiffs’ respondeat superior claims but otherwise denies that motion [# 223]. The Court grants plaintiffs’ motion for summary judgment with respect to the claims by the Class II members and the Fourth and Fourteenth Amendment claims of the Class I members for searches that occurred prior to the installation of privacy screens in the hallway at the RCDC but otherwise denies the motion [#228]. The Court denies as moot plaintiffs’ motion to strike defendants’ expert [# 255]. This case is set for a status hearing on March 10, 2009 at 9:30 a.m. Each side is to file a status report by March 6,
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2009 addressing what issues and claims remain unresolved and how the Court should proceed.

Date: February 23, 2009

________________________________ MATTHEW F. KENNELLY United States District Judge

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 Case 1:06-cv-00552 Document 205 Filed 10/03/2008 Page 1 of 15

68555-DFG

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

KIM YOUNG and RONALD JOHNSON, and WILLIAM JONES, on behalf of themselves and a class of others similarly situated,
Plaintiffs,

v.
COUNTY OF COOK, MICHAEL F. SHEAHAN, individually and in his official capacity as Sheriff of Cook County, CALLIE BAIRD, individually and in her official capacity as former Director of the Cook County Department of Corrections, SCOTT KURTOVICH, individually and in his official capacity as Director of the Cook County Department of Corrections, SALVADOR GODINEZ, individually and in his official capacity as Director of the Cook County Department of Corrections, et al.
Defendants.

No. 06 C 0552
Judge Matthew Kennelly
Magistrate Judge Geraldine SoatBrown

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT ON CONSTITUTIONALITY OF SEARCH POLICY

NOW COME ALL SHERIFF DEFENDANTS ("Defendants"), by and through their attorneys, Querrey & Harrow, Ltd., and moves this Court pursuant to Rule 56 of the Federal Rules of Civil Procedure, to grant them summary judgment. In support, Defendants state:
INTRODUCTION A visual body cavity search ("visual search") is intrusive. But this discomfort pales in comparison to the mayhem unleashed when weapons and contraband slip into the general prison population. Consequences include assaults, rapes, escape attempts, and murders, the brunt of which is borne by inmates. A visual search reduces the presence of weapons and contraband, as evinced by the voluminous reports of contraband produced by Defendants. Courts recognize the realities ofjail life demand security be the foremost concern. Visual searches facilitate this end as they impede the flow of weapons and contraband, ensuring the safety of staff, detainees, and society at large. This bulwark against jail violence must remain.

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LEGAL BACKGROUND
A. Summary Judgment. Summary judgment is proper where the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter oflaw. Moriarty v. Svec, 429 F.3d 710, 716 (7th Cir. 2005). Courts construe the record in favor of the non-moving party. ld. Summary judgment is necessary as to both classes of Plaintiffs because no Constitutional violation exists. B. Fourth Amendment. Before considering the propriety of qualified immunity, courts first ask whether the Constitution was violated. Payne v. Pauley, 337 F.3d 767, 780 (7th Cir. 2003). The Fourth Amendment protects "against unreasonable searches and seizures." U.S. Const. Amend. IV. But Fourth Amendment protections are diminished in a correctional setting. Hudson v. Palmer, 468 U.S. 517 (1984). Moreover, "courts prudently are deferential to the experienced judgment of prison administrators." Fernandez v. Rapone, 926 F.Supp. 255, 260-61 (D. Mass. 1996). The following cases embody these points. The seminal case on visual search policies is Bell v. Wolfish, 441 U.S. 520 (1979). Bell addressed the very issue before this Court. The facility in Bell mandated everyone "expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution." ld. at 558. The policy encompassed everyone, including serious and lesser offenders, and even witness protection participants. ld. at 524. The Court upheld the visual search policy. It determined that officers may conduct a search without probable cause if it is reasonable and not motivated by punitive intent. The reasonableness of a search is determined by "balancing ... the need for the particular search against the invasion of personal rights that the search entails." ld. at 559. In doing so, the Court considered "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." ld. The justification for the searches and their location motivated the Court. "A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence." Bell, 441 U.S. at 559. This rationale led the Court to conclude a visual search conducted regardless of offense or individualized suspicion was reasonable under the Fourth Amendment.
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While the Supreme Court has not revisited prison search policies, it built on Bell in Hudson v. Palmer, 468 U.S. 517 (1984). Hudson considered whether an inmate has a reasonable expectation of privacy in his prison cell. Weighing the societal interests in the security of penal institutions against the privacy interests of inmates, the Supreme Court favored institutional security. "The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions." Id. at 526. The Court observed that prison officials must be "ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today." Id. at 527. The Court concluded, "it is accepted by our society that 'loss of freedom of choice and privacy are inherent incidents of confmement.'" Id. at 528, quoting Bell, 441 U.S. at 537. Bell was also the cornerstone of Blockv. Rutherford, 468 U.S. 576 (1984). In Block, the Supreme Court upheld a jail policy prohibiting contact visits for pretrial detainees. Id. at 588. A blanket prohibition on contact visits furthered security interests because visitors could smuggle contraband. Id. at 586.
C. Summation. While inmates retain some privacy rights, their expectations of privacy are diminished. This is reflected by the following. Officers may search cells at random. Hudson, 468 U.S. at 528. Officers can search inmates after seeing visitors. Bell, 441 U.S. at 537. Officers can search inmates after visiting the prison library or hospital. Peckham v. Wise. Dep't. ofCorrections, 141 F.3d 694 (7th Cir. 1998). Finally, inmates may be monitored while showering. Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995). It is in this milieu that the Plaintiffs' claims are evaluated.!
ARGUMENT Security in a jail is paramount. This priority curtails the freedoms of inmates. While officers do not have carte blanche to impinge on inmates' rights, these axioms afford jails significant discretion to implement security measures. Plaintiffs seek to dismantle a fixture of correctional facilities. In so doing, they elevate inmates' privacy interests to the neglect of institutional security. "Privacy is the thing most surely extingnished by a judgment committing
I The factual background is set forth in the Defendants' Motion for Summary Judgment based on Qualified Immunity and incorporated herein.
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someone to prison." Id. at 146. Because an inmate's expectation of privacy is incompatible with constant surveillance, conrts resolve this tension in favor of the correctional facilities.
A. The Searches are Reasonable Because no Individualized Suspicion is Required.
The purpose of the Cook County Department of Correction's ("CCDOC") search policy is two-fold: discovery and deterrence. The benefits are innumerable. Searching detainees at intake uncovers a baffling array of items. They include not only transparently troublesome things such as drugs and weapons, but also inherently innocuous items that can be transformed into tools of violence. The specter of being searched also serves the critical function of deterrence. Those who know of the search's thoroughness may refrain from attempting to smuggle contraband.
1. Bell Forecloses Plaintiffs' Claims. The facility in Bell had a policy that did not require individualized suspicion. Its policy applied to pretrial detainees, prisoners under writs of habeas corpus, "witnesses in protective custody, and persons incarcerated for contempt." Bell, 441 U.S. at 524. Thus, the policy applied to even those charged with no wrongdoing. If post-visit visual searches for everyone, including those in protective custody, are acceptable, it is difficult to discern how the CCDOC's policy is unreasonable. Defendants' underlying premise is straightforward: Bell controls this case. Plaintiffs attack the CCDOC's blanket policy. Yet, the policy in Bell was just that. Individualized suspicion was not necessary in Bell. It is not required here. Moreover, the basis for Plaintiffs' incarceration need not induce the search. The search's raison d'etre is the detainee's destination, the CCDOC. Criminal history and particularized suspicion are inconsequential. This is the lesson of Bell. Bell and its progeny emphasize institutional security. This factor sounds the death knell of Plaintiffs' case. "The prisoner's expectation of privacy always [must] yield to what must be considered the paramount interest in institutional security." Hudson, 468 U.S. at 528. The Eleventh Circuit elaborated that conrts intervene only if searches "are devoid of penological merit and imposed simply to inflict pain." Harris v. Ostrout, 65 F.3d 912, 916 (lIth Cir. 1995). The importance of Defendants' interest is indisputable: "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves."
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Pell v. Procunier, 417 U.S. 817, 823 (1974). The Seventh Circuit explained, Bell v. Wolfish "emphasized what is the animating theme of the Court's prison jurisprudence for the last twenty years: the requirement that judges respect hard choices made by prison administrators." Johnson, 69 F.3d at 145. Bell's elevation of institutional security disposes of Plaintiffs' contentions.
The Bell Court held that visual searches of every facility inhabitant were reasonable. Bell establishes that the Fourth Amendment does not require individualized cause for a visual search. Because Plaintiffs' theory of constitutional injury depends upon such a Fourth Amendment reading, Plaintiffs' claims fail as a matter oflaw.
2. Precedent Supports the CCDOC's Search Policy. The Seventh Circuit and its District Courts recognize that institutional security is an integral factor in the reasonableness calculation. In Campbell v. Miller, 787 F.2d 217 (7th Cir. 1986), the Seventh Circuit upheld a visual search before and after inmates used the prison library. "Prison authorities could legitimately fear that the library might become a depository into and out of which contraband could be smuggled." ld. at 228. The searches in Campbell are noteworthy because they were conducted without regard to particularized suspicion. Bruscino v. Carlson, 854 F.2d 162 (7th Cir. 1988), involved the same facility. Bruscino upheld a manual rectal search of inmates returuing to their cells. The court evaluated the search in light of the prison's violence and "with proper regard for the limited competence of federal judges to micromanage persons." ld. at 165. The reasonableness of the rectal search did not detain the court long, for the searches revealed "an impressive quantity and variety of contraband." ld. An inmate's challenge to a strip search policy was at issue in Peckham, 141 F.3d 694 (7th Cir. 1998). The search was "a visual inspection of a naked inmate without intrusion into the person's body cavities." ld. at 695. Officers conducted this search when prisoners returned from another facility, court, or a contact visit. The search was not predicated on individualized suspicion. The Seventh Circuit upheld the policy, "it is difficult to conjure up too many real-life scenarios where prison strip searches of inmates could be said to be unreasonable." ld. at 697. In Daughtery v. Harris, the Tenth Circuit approved of a policy at a federal prison subjecting all inmates to a rectal cavity search before being placed in the custody of U.S. Marshals. 476 F.2d 292 (10th Cir. 1973). The court held, "this policy of allowing rectal searches must be considered reasonable unless contradicted by a showing of wanton conduct." ld. at 294.
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District Courts in the Seventh Circuit have found individualized suspicion inapplicable in the reasonableness determination. Detainees challenged a CCDOC policy mandating all new detainees submit to a visual search in Roscom v. Chicago, 570 F.Supp. 1259 (N.D. Ill. 1983). The court upheld the search, reasoning that Bell "does not require a showing of probable cause for visual strip searches of pretrial detainees." ld. at 1262. It concluded the jail may reasonably consider any detainees "could be carrying weapons or contraband ... irrespective of the crimes charged." ld. Whether a strip search and manual cavity search were reasonable was the focus of Vasquez v. Gempeler, 2008 U.S. Dist. LEXIS 57168 (W.D. Wis. 2008). As to the strip search, the court held, "they are legal under circuit precedent, even if defendants did not have any particularized suspicion that plaintiff had unauthorized items." ld. at *2. The court also found the manual cavity search reasonable because legitimate security concerns existed. ld. at *3.
These decisions are the blueprint for adjUdicating this matter. The approval of analogous policies warrants the same result here. That institutional security is fostered by a visual search is a proposition so evident it needs no illustration. This principle reveals the flaw of Plaintiffs' suit.
3. Case Law Misconstruing Bell is Suspect. Despite the above cited precedent and Bell's holding that searches do not reqUire particularized suspicion, some cases have held to the contrary. They are incorrect. Their reliance is dubious because they shun Bell and disregard the deference to state correctional fucilities. See Turner v. Safley, 482 U.S. 78, 85 (1987). "Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities." The following are examples of Bell's misapplication.
a. Appellate Decisions. The Ninth Circuit considered the viability of a blanket search procedure in Kennedy v. Los Angeles Police Dep 't., 901 F.2d 702 (9th Cir. 1989), overruled on other grounds, Hunter v. Bryant, 502 U.S. 224 (1991). The court held a policy requiring a visual search of all persons arrested for felonies violated the Fourth Amendment. ld at 716. The Second Circuit held that strip searching detainees charged with misdemeanors absent reasonable suspicion violated the Fourth Amendment. Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001). See also Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001) (strip searching all arrestees held unconstitutioual). While
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not binding, these cases demonstrate the departure from Bell as they infuse a reasonable suspicion standard that Bell never enunciated.
The Seventh Circuit considered a search policy that did not account for individualized suspicion in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983). A city policy mandated female misdemeanants be strip searched in city lockups. The Seventh Circuit found Bell distinguishable "because the particularized searches in that case were initiated under different circumstances." Id. at 1272. The plaintiffs in Mary G. were "not inherently dangerous and ... were being detained only briefly while awaiting bond." Id. The concerns of Bell were inapplicable, "those dangers are [not] created by women minor offenders entering the lockups for short periods while awaiting bail." Id. at 1273. The record supported this fmding, during a onemonth period the visual search produced no contraband from minor offenders. Id.
Mary G. is distinguishable. The search in Mary G. applied to female arrestees at police stations, not to all persons booked into the general population of the largest jail in the country. The Plaintiffs have also undergone a Gerstein hearing in which a judge has found probable cause to detain them. Moreover, the record here is rife with discoveries of contraband, embodied by 2,000 pages of contraband reports. This fact clashes with the lack of contraband in Mary G. The substantial violence in the CCDOC further distinguishes Mary G. See Holly v. Woolfold, 415 F.3d 678, 679 (7th Cir. 2005) (describing "the dangerous general-population area" of the CCDOC and citing reports of stabbings and murders in the CCDOC). Additionally, Mary G. erroneously distinguished Bell on the ground that "the detainees [in Bell] were awaiting trial on serious federal charges after having failed to make bond." Id. at 1272. But the search policy in Bell encompassed everyone, including witnesses in protective custody. Because its analysis of Bell is mistaken, Mary G. rests on a frail foundation.
The Seventh Circuit jurisprudence discussed above is post Mary G. Cases like Bruscino and Peckham represent a retreat from Mary G.'s narrow approach. Mary G. is of no utility here due to the factual distinctions, its misreading of Bell, and recent Seventh Circuit case law.
b. District Court Decisions. Courts in this District have addressed intake searches. The outcomes vary. Some decisions have not given adequate weight to institutional security. Roscom, discussed above, contrasts with an unpublished decision striking a blanket strip search policy, Gary v. Hayes,
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1998 U.S. Dist. LEXIS 13378 (N.D. Ill. 1998). The Gary Court framed the issue as "whether the searches conducted on female detainees after they had been ordered released from custody by a judge is unreasonable under the circumstances." Id. at *36. It struck the policy, reasoning that officials must have "a reasonable suspicion that the class member is carrying a weapon or contraband." Id. This same policy, as applied to males, was litigated in Bullock v. Sheahan, 2008 U.S. Dist. LEXIS 59248 (N.D. Ill. 2008). The court invalidated it because "plaintiffs - as individuals for whom there is no longer any basis for detention - clearly have a privacy interest which is arguably greater than that of pretrial detainees." Id. at *20. The Bullock Court also noted the paltry amount of contraband discovered. Id. at *22.
Finally, in Thompson v. Cook County, 428 F. Supp. 2d 807 (N.D. Ill. 2006), a jury rejected plaintiff's claim that a strip search violated his Fourth Amendment rights. The District Court granted his motion for a new trial. "Strip searches at the time of intake of a detainee accused of a minor offense violate the Fourth Amendment unless correctional officers have reasonable suspicion to believe that the detainee is concealing contraband." Id. at 812. Defendants offered only non-specific evidence that contraband had been recovered. The court refused to consider the fact plaintiff would commingle with the general population because it would give officials "a basis for blanket strip searches of detainees irrespective of the presence of individualized reasonable suspicion." !d. at 815.
These cases are distinguishable. Gary and Bullock involved individuals ordered released by a judge. The Plaintiffs do not fit that description. They are on their way into the CCDOC while the plaintiffs in Gary and Bullock were on their way out. The privacy interests in Gary and Bullock were greater than in the instant case. Thompson is also unhelpful because it involved a single search, not the search policy itself. The defendants in Thompson offered only non-specific evidence of contraband. The 2,000 pages of contraband reports render Thompson inapposite. See Exhibit 10. Moreover, the plaintiff in Thompson was held in civil contempt, "incarcerated not to be punished." Id. at 887. Thompson did not involve pretrial detainees ordered detained pursuant to a Gerstein hearing as here, and thus the case is of marginal significance.
Summarily rejecting blanket search policies stands Fourth Amendment jurisprudence on its head. These cases buoy the delusion that Bell mandates individualized suspicion. It does not.
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It holds the opposite. This case affords the Court an opportunity to clarify the confusing patchwork of cases and restore the central plank of Bell.
4. The Eleventh Circuit Reaffirms Bell. The distortion of Bell is pervasive. This phenomenon is noted in a recent en banc decision of the Eleventh Circuit, Powell v. Barrett, 2008 U.S. App. LEXIS 18907 (11th Cir. Sept. 4, 2008). The court, by a vote of 11 to 1, reaffirmed the holding of Bell and lamented its erosion. Powell was a detainee class action challenging a jail's search policy. Under the policy "neither the charge itself nor any other circumstance supplied reasonable suspicion to believe that the arrestee might be concealing contraband." [d. at *3. Thus, the plaintiffs were searched "solely because they were entering the general population of inmates at the detention facility." [d. The search entailed detainees standing naked in a group of up to 40, with each arrestee "visually inspected front and back by deputies." [d. at *5. The policy did not include visual searches. [d. at *42. After examining Bell, the Eleventh Circuit concluded Bell dictated upholding the policy, as privacy expectations could not overcome security interests. The Eleventh Circuit addressed cases requiring individualized suspicion for a search. These cases included not only those emanating from other circuits, but also its own, Wilson v. Jones, 251 F.3d 1340 (l1th Cir. 2001). The Powell Court rebuked these decisions because they "misread Bell as requiring reasonable suspicion." Powell, at *23. It explained that Bell does not require reasonable suspicion before a search. For Bell required "a search of every inmate returning from a contact visit regardless of whether there was any reasonable suspicion to believe that the inmate was concealing contraband." [d. at *24. The Eleventh Circuit concluded its analysis by highlighting the opportunity detainees have to hide contraband, noting gang members "have all the time they need to plan their arrests and conceal items on their persons." !d. at *45. Some courts have emphasized snippets of Bell while gutting its central holding. This Court should endorse the Eleventh Circuit's astute analysis and adhere to Bell. Powell's 11 to I vote amplifies Defendants' position.
5. The Potential for Weapons and Contraband are at Their Peak During Initial Intake.
The CCDOC's interest in security is strongest when detainees are booked into the general popUlation. Courts recognize this process involves substantial risks to jail security. The record
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vindicates this view - 2,000 pages of contraband reports. See Exhibit 10. The Sixth Circuit's observations in upholding an intake search are apt: "[t]he security interests of the jail in conducting a search at this point were strong. [Plaintiff] was about to come into direct contact with the general jail population." Dobrowolskyj v. Jefferson County, 823 F.2d 955, 959 (6th Cir. 1987). The Tenth Circuit made the same determination in Archuleta v. Wagner, 523 F.3d 1278 (10th Cir. 2008). It upheld a search based on "the obvious security concerns inherent in a situation where the detainee will be placed in the general prison population." Id. at 1284. The First Circuit noted that "[i]ntermingling of inmates is a serious security concern that weighs in favor of the reasonableness, and constitutionality, of the search." Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir. 2001). These principles apply here.
Courts uphold blanket visual searches when inmates transfer to another area of the prison. In Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983), an inmate challenged a policy mandating visual searches when inmates visited the library, infirmary, and visiting room. Invoking Bell, the First Circuit upheld the procedure, noting it was "most hesitant to overturn prison administrator's good faith judgments." Id. at 887. In Peckham, the Seventh Circuit found a strip search of every inmate arriving from another facility or court was reasonable. 141 F.3d at 697.
That the CCDOC's procedure concerns individuals entering the facility does nothing to diminish the import of these cases. In fact, the probability of contraband is greater here because Plaintiffs are coming from outside the CCDOC. It is at this juncture that Defendants be most vigilant. Gang members may get themselves arrested in order to smuggle contraband into prison. Moreover, an arresting officer's pat-down search may miss items which are then concealed during booking. These examples represent real dangers ameliorated by a visual search. The CCDOC's policy minimizes the risks borne by staff and detainees alike.
If searches after trips to the hospital, trips to the library, and trips to other wings are reasonable, logic dictates that searches of those entering the facility from the outside are acceptable. This is a natural application of Bell, confirmed by eleven judges on the Eleventh Circuit, and grounded in common sense.
6. The Felon and Non-Felon Dichotomy is False. Courts have fixated on the charges of a detainee in calculating the reasonableness of an intake search. The precise date and locus of this notion's birth are unknown, but it has led a
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robust life. However, whether a detainee is charged with a felony or some lesser offense has no basis in Supreme Court prison search jurisprudence.
The Eleventh Circuit criticized this distinction in Powell. It pointed to Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989) and Mary G., 723 F.2d 1263. Powell at *31. The Eleventh Circuit was blunt: "[t]hose decisions are wrong. The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance . . . [and] finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities." Id. at *32. The Eleventh Circuit is correct. Bell is silent as to detainee status. Instead, Bell upheld the blanket policy Plaintiffs now ask the Court to strike.
The Eleventh Circuit singles out the Seventh Circuit, and rightly so. Citing Mary G., the Eleventh Circuit notes, "[t]he MCC was hardly a facility where all of the detainees were 'awaiting trial on serious federal charges,' as some of the opinions incorrectly state." !d. at *33, quoting Mary G. Thus, cases that have distinguished Bell on the basis that it involved dangerous offenders are mistaken. See also Aruda, 710 F.2d at 887-88 (1st Cir. 1983) ("the strip searches in [BelT] were not restricted to particularly dangerous prisoners."). Bell made no distinction for less dangerous detainees, or even witness protection participants. These facts render Plaintiffs' contentions futile because misdemeanants need not be excepted.
Claiming a detainee's non-felon status immunizes him from search ignores Bell on multiple grounds. First, Bell articulated no such distinction. Second, the test is "whether a prison search policy is 'reasonable' under the circumstances." Aruda, 710 F.2d at 887. Instead of concluding the search is suspect because the detainee is a minor offender, a court must undertake a balancing of interests. The central factors in that evaluation are the "why" and "where" of the search. But some cases bypass these fundamental questions, with predictable results.
Whether a detainee is charged with a felony or misdemeanor is a distinction without a difference. Finding to the contrary will have deleterious consequences for correctional facilities, as this approach underestimates the criminal mindset. Gangs may exploit the disjunctive treatment between offenders. The Eleventh Circuit concurs. Officials do not know whether a detainee is "only a minor offender or is also a gang member who got himself arrested so that he could serve as a mule smuggling contraband in to other members." Powell, at *36. Endorsing the felony-misdemeanor dichotomy frustrates security. This Court should reject it.
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7. Summation. Keeping contraband out of the CCDOC is a task of Sisyphean proportions. Defendants have devised a search policy they deem most effective to detect contraband. The Court should defer to this determination. Blanket search policies that encompass minor offenders and transcend individualized suspicion have the imprimatur of the Supreme Court. B. The Manner of the Searches is Reasonable. Plaintiffs renounce the manner in which the searches occurred, particularly the intrusiveness of the search and its public nature. But courts "accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system." Overton v. Bazzetta, 539 U.S. 126, 132 (2003). The burden is not on the Defendants to prove the validity of the policy but on Plaintiffs to disprove it. fd. In view of the rejection of similar claims, neither class of Plaintiffs can prevail.
1. Group Searches Are Permissible. Courts hold that visual searches in the presence of other inmates and staff are not constitntionally defective. This is so because of security concerns. In Elliott v. Lynn, 38 F.3d 188 (5th Cir. 1994), the Fifth Circuit held visual searches conducted before other inmates and correctional officers were reasonable because of security. A District Court in this Circuit entertained the question in Zunker v. Bertrand, 798 F.Supp. 1365 (E.D. Wis. 1992). "Visual body cavity searches conducted after contact visits as a means of preventing inmates' possession of weapons and contraband, even absent probable cause, have been found reasonable by the Supreme Court." !d. at 1369. The court held, "plaintiff's privacy interest in not having other inmates view the strip searches [did not] outweigh[] the security interests of the prison in this case." fd. at 1370. The presence of other inmates during a strip search was found reasonable in Difilippo v. Vaughn, 1996 U.S. Dist. LEXIS 8823 at *6 (E.D. Pa. 1996). The District Court in Fernandez v. Rapone, 926 F.Supp. 255 (D. Mass. 1996), held similarly. Strip searching inmates in front of others "does not render the searches unreasonable [because a] person's expectation of privacy is unquestionably diminished when he is incarcerated." fd. at 262. The correctional context necessitates a loss of privacy. That inmates lack a reasonable expectation of privacy in their unclothed bodies is also evident from the decisions upholding observation of inmates during showers. Phelan, 69 F.3d at 146 (7th Cir. 1995). In Burge v.
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Murtaugh, 2007 U.S. Dist. LEXIS 90736 (N.D. Ind. 2007), the court considered whether surveillance of inmates in the shower violated the Fourth Amendment. It did not, for "the privacy interests of the inmate almost always must yield." Id. at *4-5. In Rhoden v. DeTella, 1995 U.S. Dist. LEXIS 17354 at *10 (N.D. Ill. 1995), the court found no violation of a prisoner's right to privacy where officials were able to view him in the shower. These cases, while outside the search context, reinforce the view that institutional security cannot be undermined by detainees' privacy demands. That Plaintiffs are searched in front of others is insignificant given the realities ofjail life.
2. Searches in Areas of Limited Privacy Are Permissible. Plaintiffs argue the area where the searches occurred is unsuitable. Case law says otherwise. In Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994), the Seventh Circuit considered a challenge to a digital rectal search that transpired in the "lobby area" of a prison. The court upheld the search. It determined the circumstances warranted the location of the search. The court concluded, "[t]his court will not intervene in decisions within the purview of the warden and the Bureau of Prisons. The decision to initiate different methods to search for contraband is not for this court to make in this case." Id. at 1042. The Eighth Circuit reached a similar conclusion in Franklin v. Lockhart, 883 F.2d 654 (8th Cir. 1989). An inmate in Franklin challenged the manner and place in which officers conducted visual searches - in the hallway where other inmates could watch. Security concerns justified the procedure and since the record did not support a less public method, the searches were constitutional. Id. at 657. Finally, the Ninth Circuit held hallway strip searches were reasonable. Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988). It reasoned, "so long as a prisoner is presented with an opportunity to obtain contraband or a weapon while outside of his cell, a visual strip search has a legitimate penological purpose." Id. at 333. Plaintiffs' disdain for being searched is not without merit. As the Seventh Circuit has observed, "[t]here is no question that strip searches may be unpleasant, humiliating and embarrassing to prisoners." Calhoun v. Detella, 319 F.3d 936,939 (7th Cir. 2003). But in the same breath, the Court admonished, "not every psychological discomfort a prisoner endures amounts to a constitutional violation." Id. Because privacy expectations are at a nadir in jails, conducting searches in a group setting and public area do not implicate constitutional concerns.
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3. The Conditions Surrounding the Search Are Immaterial. Plaintiffs' affidavits devote significant attention to the obscene language of officers and the unpleasant conditions. Such issues are irrelevant to this Motion. The two classes of Plaintiffs are defmed not on the surroundings of the search, but on the type of search (visual) and the type of the offense charged (less than a felony). Moreover, case law rejects any notion these conditions are actionable as articulated here. Verbal abuse by correctional employees does not state a constitutional claim. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989); Mitchell v. Justus, 2006 U.S. Dist. LEXIS 36656 at *3 (W.D. Vir. 2006). One Northern District Court's comments are noteworthy, "[tJhe court notices judicially that foul language and name-calling occur all of the time in prison settings." Joyner v. Elrod, 1985 U.S. Dist. LEXIS 23519 (N.D. Ill. 1985). If such occurrences were actionable, "our courts would become arbitrators in thousands of prisoner complaints deciding how actionably obscene was the language." [d. at *2. Plaintiffs' cleanliness concerns are likewise irrelevant and precluded by precedent. Unpleasant odors are a natural consequence of prisons and the Constitution does not prohibit discomfort. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). In sum, Plaintiffs' displeasure with the context of the search has no bearing on this Motion.
4. Summation. Policies have consequences. Adopting Plaintiffs' position will inhibit Defendants' job of screening for contraband. It will also exacerbate an already precarious environment. Striking the search policy represents the "unguided substitution of judicial judgment for that of the expert prison administrators" the Supreme Court deemed "inappropriate." Bell, 441 U.S. at 554. Precedent, deference, and policy coalesce to warrant a finding that Defendants are entitled to summary judgment on both classes. C. Plaintiffs' Due Process and Equal Protection Claims Fail. The Fourteenth Amendment states, "nor shall any State deprive any person of life, liberty, or property, without due process of law." Due process claims are examined in two steps. First, the plaintiff must demonstrate that a liberty interest exists that the state interfered with, and second, whether the procedures attendant upon that deprivation were constitutionally sufficient. Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). Defendants have established that Plaintiffs' Fourth Amendment claims fail as a matter of law. A court has found probable cause to detain
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Plaintiffs per Gerstein. (S.O.F. 21-22). Thus, Plaintiffs' due process assertions cannot stand as Defendants have not interfered with any liberty interest.
Plaintiffs' equal protection claim also fails. Detainees must be treated equally, unless unequal treatment bears a rational relation to a legitimate penal interest. May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000). But the detainees are not similarly situated. Males outnumber females about eight to one. (S.O.F. 11). The different treatment is rationally related to security concerns as the large number of men requires that they be searched in a different area of the jail and a different manner. (S.O.F. 42-43). Males must be strip searched before going to their housing divisions. (S.O.F. 14-15). Any other arrangement would impermissibly slow the process such that detainees would not reach their housing division until the following day. (S.O.F. 5052). In sum, logistical and budgetary realities render any effort to treat the genders the same impossible. These immutable facts foreclose Plaintiffs' equal protection claim.
CONCLUSION What ultimately differentiates this case from Northern District and Seventh Circuit precedent is the 2,000 pages of contraband reports. These pages are fatal to Plaintiffs' cause because they breathe life into the dry, arcane, listless legal terms of "penological interest" and "institutional security." It is these reports that document the crises averted, the violence that did not befall detainees. Make no mistake, the main beneficiary of the search policy is the detainees themselves. Jail weapons are wielded with equal vigor against misdemeanants and felons, and that is why all entrants to the CCDOC must accept a transient unpleasantness early in order to forego a prolonged anguish later. WHEREFORE, the Sheriff Defendants respectfully request the Court determine that the search policy is constitutional and grant sununary judgment as to both classes in their favor. Defendants seek any additional relief the Court deems just.
Respectfully submitted, THE SHERIFF DEFENDANTS By: sl Daniel F. Gallagher Daniel F. Gallagher Querrey & Harrow, Ltd. 175 WestJackson Blvd., Suite 1600 Chicago,1L 60604-2827 l.D. #0905305
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 Case 1:06-cv-00552 Document 207 Filed 10/03/2008 Page 1 of 15

68555-DFG

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DNISION

KIM YOUNG and RONALD JOHNSON, and WILLIAM JONES, on behalf of themselves and a class of others similarly situated,
Plaintiffs,

v.
COUNTY OF COOK, MICHAEL F. SHEAHAN, individually and in his official capacity as Sheriff of Cook County, CALLIE BAIRD, individually and in her official capacity as former Director of the Cook County Department of Corrections, SCOTT KURTOVICH, individually and in his official capacity as Director of the Cook County Department of Corrections, SALVADOR GODINEZ, individually and in his official capacity as Director of the Cook County Department of Corrections, et al.
Defendants.

No. 06 C 0552
Judge Matthew Kenuelly
Magistrate Judge Geraldine SoatBrown

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT BASED ON OUALIFIED IMMUNITY

NOW COME Defendants, MICHAEL F. SHEAHAN ("Sheahan"), individually and in his official capacity as Sheriff of Cook County, CALLIE BAIRD ("Baird"), individually and in her official capacity as former Director of the Cook County Department of Corrections, SCOTT KURTOVICH ("Kurtovich"), individually and in his official capacity as Director of the Cook County Department of Corrections, and SALVADOR GODINEZ ("Godinez"), individually and in his official capacity as Director of the Cook County Department of Corrections (collectively "Defendants" or "Sheriff Defendants"), by and through their attorneys, Querrey & Harrow, Ltd., and move this Court to dismiss Plaintiffs' claims against the individual defendants based on qualified innnunity. In support, Defendants state as follows:
INTRODUCTION This Motion raises an issue of significant importance: whether correctional officials are entitled to qualified immunity when they followed a jail procedure enshrined in the Illinois Administrative Code and used by the Federal Bureau of Prisons and U.S. Marshals Service. This basis alone is enough to warrant qualified immunity. But there is more. Case law involving jail

Case 1:06-cv-00552 Document 207 Filed 10/03/2008 Page 2 of 15
search policies is notoriously unpredictable. Courts across the country have struggled to parse Supreme Court jurisprudence on the issue. The result is a patchwork of precedent, the only consistency being its inconsistency. Because case law regarding jail search policies is the antithesis of clarity, qualified immunity is proper. This factor, coupled with state law authorizing the conduct in question leads to the inescapable conclusion that Defendants are entitled to qualified immunity.
FACTS I. Background Regarding Named Plaintiffs.
Kim Young ("Young"), Ronald Johnson ("Johnson") and William Jones ("Jones"), (collectively, "Plaintiffs") take issue with certain intake procedures at the Cook County Department of Corrections ("CCDOC"). They claim these policies violated their constitutional rights guaranteed by the Fourth and Fourteenth Amendments. Plaintiffs sue pursuant to 42 U.S.C. § 1983.
Young was arrested and held on an outstanding warrant. (S.O.F. 3, 15, 44).1 Upon arriving at the jail, officers instructed her to remove her clothing and to squat down in front of an officer and cough. (Id.) She was behind a partition during this procedure. (Complaint at 8)? Johnson entered the CCDOC for possession of drugs. (S.O.F. 4). He was charged with a Class 4 felony pursuant to 720 ILCS 570/402(c). (!d.) He went through the intake process with 100 other men. (S.O.F. 11). He was ordered to strip naked. (S.O.F. 4, 14, 15, 30). Finally, Jones was arrested on an outstanding felony warrant. (S.O.F. 5). He went through the CCDOC intake procedure with 100 other men. (S.O.F. 11,30,31,35). He was subjected to a strip search. (S.O.F. 14, 15,30). II. Intake Statistics And Procedure.
The CCDOC houses over 10,000 pretrial detainees in ten residential divisions. (S.O.F. 8). New detainees enter through the Receiving Classification and Diagnostic Center ("RCDC"). (S.O.F. 8,35,36). Male and female detainees are physically separated. (S.O.F. 9)
Dan Brown ("Brown") was the Assistant Executive Director of the CCDOC during the time period covering Plaintiffs' allegations. (S.O.F. 10). Brown explained that between 250 and
I All citations are to Defendants' RuJe 56.1 Statement of Facts ("S.O.F."), unless otherwise noted. 2 All references to "Complaint" are to Plaintiffs' Third Amended Complaint.
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350 detainees are booked into and out of the jail daily. (S.O.F. 11). About 300 of those detainees are men and 30 to 40 are women. (Jd). Of those detainees processed for intake, almost all enter the jail's general population. (S.O.F. 12). There are release mechanisms for non-violent offenders under the Duran Consent Decree; as such, there is a high concentration of violent individuals comprising the general population of the Cook County Jail. (See Exhibit 12). III. Statutory Code Provisions and Jail Inspections.
The CCDOC requires that all new detainees be strip searched. (S.O.F. 14). Male detainees are strip searched upon admission. (S.O.F. 14, 15). That search is mandated by sections 701.40(f) and 701.140 of the Illinois Administrative Code. (20 Ill. Adm. Code 701.40(f) (2006)). While not governed by federal prison regulations, the CCDOC search policy is consistent with them. (S.O.F. 16, 18). Strip searches and visual cavity searches are authorized by Federal Bureau of Prisons' regulations and the U.S. Marshals Service directives. (Jd). The CCDOC's intake procedure is accredited by the American Correctional Association. (S.O.F. 19, 57-59). The Illinois Department of Corrections performs annual inspections of the jail and approves of the intake procedure. (S.O.F. 20).
Before entering the CCDOC, each detainee receives a Gerstein hearing in which a judge fmds probable cause to detain each individual, in accordance with Gerstein v. Pugh, 420 U.S. 103 (1975). (S.O.F. 21). The CCDOC is unique in that it only accepts detainees who have already seen a judge. (S.O.F. 22). When a new detainee arrives at the jail, the Sheriffs deputies are unaware of each detainee's charges. (S.O.F. 13, 23). A visual strip search, and not an anal cavity probe, is performed during the intake process. (S.O.F. 30). Before the search, the detainees are lined up and told they will be searched. (S.O.F. 31). At one point, the number of detainees searched varied, ranging from ten to seventy-five. (S.O.F. 32-37). From February 2007 to the present, no more than 35 detainees are visually searched at one time using partitions. (S.O.F.40). IV. Contraband.
The strip search prevents the introduction of contraband into the jail. (S.O.F. 24-29, 34, 64). Brown has personally searched new detainees. (S.O.F. 24). He could not recall a single strip search during which contraband was not found. (Jd). Items routinely discovered include cash,
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cigarette packages and lighters. (S.O.F. 26). Drugs and weapons such as razor blades and knives are de rigueur. (Jd).
Defense expert Nonnan Carlson is a fonner Director of the Federal Bureau of Prisons and has over fifty years of experience in correctional administration. (S.O.F. 62). He reviewed over 2,000 pages of contraband reports produced during discovery detailing contraband found during intake strip searches at CCDOC. (S.O.F. 27). Carlson observed that inmates with misdemeanor charges were as likely to carry contraband as inmates with more serious charges. (S.O.F. 28). For an example of this scenario, see Exhibit 10, QH 470. Finally, Carlson noted that the Federal Bureau of Prisons recognizes the anal cavity is a common place to smuggle contraband. (S.O.F. 29). V. Female Intake Search Procedure.
The smaller number of women entering the jail allows for a modified search procedure. (S.O.F. 42). The women go through a body scan machine in the receiving room. (S.O.F. 44). The body scan machine can take five minutes per individual. (S.O.F. 45). The machine does not always detect objects in detainees' mouths, under a flap of skin, or in the body cavity. (S.O.F. 45-49). Detainees have evaded the machine's detection and smuggled contraband into jail. (Jd). Recidivists can manipulate the scanning machines. (S.O.F. 45). As a result, women are strip searched with the use of partitions - identical to the ones used for male searches. (S.O.F. 44). VI. Male Intake Search Procedure.
Like the women, males go through an interview process, receive a medical screening, and are given a security level and housing division. (S.O.F. 35). Due to the large number of male detainees, the males are strip searched at the RCDC before going to their housing divisions. (S.O.F. 36). The RCDC is one of the only areas that can accommodate the large number of detainees. (Jd). Additionally, if the search transpired elsewhere it would increase the time a detainee might have a weapon. (S.O.F. 37).
Detainees would bend at the waist and spread their buttocks so that officers could look for contraband. (S.O.F. 38). One year before Plaintiffs filed their Complaint, Defendants changed the process such that detainees squatted rather than bended at the waist. (S.O.F. 39). In February 2007, Defendants installed partitions in the hallway where the male searches occurred. (S.O.F.
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40). However, partitions raise safety concerns, such as using partition parts as weapons and conceahnent of attacks by detainees. (S.O.F. 41).
Searching males using the same procedures as females would slow the process such that detainees would not reach their housing division in time to attend court, on the following morning. (S.O.F. 50-52). Detainees could not reach their housing locations, eat, shower, or contact family members. (lef). The jail is subject to a Consent Decree requiring the intake process be completed within a reasonable time, and eleven hours was deemed unreasonable in Lewis v. O'Grady, 853 F.2d 1366, 1370 (7th Cir. 1988). (S.O.F. 53). Lastly, Sheriff Sheahan was informed by District Court Judge Wayne Anderson, during the settlement of the prior female strip search class action that there was no problem with the male strip search. (S.O.F. 54). VII. Class Certification.
This Court certified two classes based on improper intake procedures. Class I consists of:
All males who were subjected to a strip search and/or visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.
Class II consists of: All persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.
ARGUMENT Plaintiffs' allegations and the testimony adduced during discovery demonstrate that any constitutional violations committed against Plaintiffs were the result of a strip search policy, not the conduct of individual Defendants. Moreover, this matter does not involve behavior that is egregious and devoid of social utility, but rather efforts to facilitate important law enforcement interests. There can be little dispute in the worth of combating the scourge ofjail violence. Thus, the reasonableness standard militates in favor of fmding qualified immunity. I. This Case Epitomizes Why The Qualified Immunity Doctrine Exists. Qualified immunity shields officers from liability for civil damages insofar as their conduct does not violate "clearly established statutory or constitutional rights of which a
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reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity "gives public officials the benefit of legal doubt," Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991), by relieving them from having to decide, at their fmancial peril, how judges will decide future cases. Greenberg v. Kmetko, 922 F.2d 382,385 (7th Cir. 1991).
In Saucier v. Katz, the Supreme Court set out a two-part test for qualified immunity. 533 U.S. 194,201 (2001). The threshold inquiry is whether "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id at 201. If they do not show a right was violated, the inquiry ends and sununary judgment based on qualified immunity is proper. Defendants have established in its Motion regarding the constitutionality of the search that the search policy is constitutional and thus this Court need not address the issue of qualified immunity.
Even if the Court disagrees with the Defendants' Motion, Plaintiffs fare no better because qualified immunity applies. In ascertaining the propriety of qualified immunity, the Court must determine "if the right was clearly established." Saucier, 533 U.S. at 201. '''Clearly established' within the context of qualified immunity means that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 639-40. This second question must be answered in light of the specific context of the case. Brosseau v. Haugen, 543 U.S. 194, 198 (2004). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the sitnation he confronted." Saucier, 533 U.S. at 201. "If officers of reasonable competence could disagree on" the lawfulness of the conduct, "immunity should be recognized." Hunter v. Bryant, 502 U.S. 224, 229 (1991).
Defendants need only show that reasonable minds could differ as to the lawfulness of their conduct. It is irrelevant in deciding qualified immunity whether there is a "more reasonable" interpretation of the law that may be conceived of after the fact. Hunter, 502 U.S. at 228. This distinguishes this Motion from other sununary judgment motions. "When reasonable minds could differ, in the typical summary judgment decision the balance tips in favor of the nonmovant while in the qualified immunity context the balance favors the movant." Ellis v. Wynalda, 999 F.2d 243,246 (7th Cir. 1993).
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A. The Statutory Law And Administrative Code Establish That The Defendants' Conduct Was Permissible.
In considering the "objective legal reasonableness" of the state officer's actions, one relevant inquiry is whether the defendant relied on a state statute, regulation, or official policy that explicitly sanctioned the conduct in question. Wilson v. Layne, 526 U.S. 603, 617 (1993). "The existence of a statute or ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official would find that conduct constitutional." Grossman v. City o/Portland, 33 F.3d 1200, 1209 (9th Cir. 1994). "Common sense dictates that reasonable public officials are far less likely to conclude that their actions violate clearly established rights when they are enforcing a statute on the books with no transparent constitutional problems." Connecticut ex reI. Blumenthal v. Crotty, 346 F.3d 84, 104 (2d Cir. 2003). These axioms dictate qualified immunity for Defendants is proper.
When the searches were performed there was statutory and administrative authority permitting these measures. Specifically, the Illinois Administrative Code, Federal Bureau of Prisons' Directives, and the U.S. Marshals Service Directives authorize strip searches of detainees upon admission into a correctional facility. (S.D.F. 15-19). This troika validates Defendants' actions, which were consistent with these provisions. Defendants acted reasonably in relying on unambiguous state and federal authority as the foundation for their intake procedure. The following synopses of the Illinois and Federal provisions capture their clarity and embody the propriety of Defendants' policies.
1. Regulatory Language Authorizing Strip Searches. The Illinois Administrative Code provision mandating strip searches at intake states:
1) A strip search shall be performed in an area that ensures privacy and dignity of the individual. The individual shall not be exposed to the view of others who are not specifically involved in the process.
2) Strip searches shall be conducted by a person ofthe same sex.
3) All personal clothing shall be carefully searched for contraband.
4) The probing of body cavities may not be done except where there is reasonable suspicion of contraband.
20 Ill. Adm. Code 701.40(f) (2007).
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The Code also provides that "[d]etainees permitted to leave the confines of the jail temporarily, for any reason, shall be thoroughly searched prior to leaving and before re-entering
the jail." 20 m. Adm. Code 701.140.
The Federal Bureau of Prisons has a similar directive. It instructs personnel to search detainees in a manner more extensive than the CCDOC's policy. The directive provides:
Staff shall instruct the inmate to lift or move any body folds or creases, to include penis and testicles, or breasts, and excess skin folds.... The inmate shall be asked to turn around facing away from the officer, with the arms extended to the side and the feet about shoulder width apart...The inmate shall be instructed to bend over as far as possible, reach behind and pull buttocks apart to expose the crevice area.
Male inmates are to be instructed to cough deeply. Female inmates
shall be instructed to face the officer, squat and cough deeply. A flashlight shall be used for a visual search ofthese areas.
Federal Bureau of Prisons, Directive 5800.12, Section 124. Finally, the U.S. Marshals Service Directives authorize strip searches in a manner that is
consistent with the CCDOC's procedures. The Directives mandate strip searches when there is reasonable suspicion. U.S. Marshals Service Directives Section 9.3(D)(3)(a). The U.S. Marshals Service Directives provides:
When conducting a strip search, the deputy will: (3) Inspect behind each ear and look inside the prisoner's ear canals, nostrils, and mouth, checking under the tongue, roof of the mouth, and between the lips and gums. Visually inspect down the front of the body, paying close attention to areas such as armpits, breasts; and genital area. Direct the prisoner to face in the opposite direction and conduct a visual inspection of the upper back area. (4) Direct the prisoner to spread his or her legs and bend forward at the waist. Observe the anus area and genitals from the rear. Conclude with an observation of the bottoms and between the toes of both feet.
U.S. Marshals Service Directives Section 9.3(D)(3)(f)(3)-(4). The directives also instruct: "[p]rior to accepting a prisoner(s) from a detention facility,
institution, or other inside or outside source, deputies may perform their own strip searches as
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necessary based on the factors due to the prisoner's contact with individual(s) inside or outside the facility and the need for a thorough search for contraband and/or weapons." 1d. at (D)(3).
2. The CCDOC's Intake Procedure Parallels the Federal Bureau of Prisous aud the U.S. Marshals Service.
Under the Bureau of Prisons' procedure, detainees must bend over as far as possible, pull their buttocks apart, and cough deeply. The federal correctional officers then use a flashlight for the visual search of these areas. The provisions of the U.S. Marshals Service Directives are essentially identical. Detainees at CCDOC must bend over and spread their buttocks, like inmates in federal facilities. During the relevant class period, the CCDOC shifted from this process to one in which the male detainees must squat and cough. This process mirrors how federal female detainees are searched. Moreover, the U.S. Marshals Service Directives instruct deputies to perform strip searches whenever a prisoner is accepted from an outside source. U.S. Marshals Service Directives Section 9.3(D)(3)(g). Thus, the strip search process of the CCDOC is consistent with the directives of the Federal Bureau of Prisons and the U.S. Marshals Service, providing additional support for a finding ofqualified immunity.
The Illinois Administrative Code requires the CCDOC strip search all detainees prior to entering the general population of the jail. Thus, non-violent and non-drug related misdemeanants cannot avoid the search process. Illinois law is clear. So are the Federal Bureau of Prisons and U.S. Marshall Directives. They make no distinction between detainees and their respective charges. Again, Defendants' conduct was reasonable because they were acting in accordance with state and federal regulations.
Finally, the American Correctional Association and the Illinois Department of Corrections inspected and certified the CCDOC. (S.O.F. 19, 20, 57-59). These entities did not raise any concerns regarding the intake procedure. (1d). Defendants relied on the compliance certifications as evidence that their intake procedure complied with national standards. Additionally, Norman Carlson opined that the searches serve a legitimate penological purpose and are performed in a reasonable manner. (S.O.F. 64) Finally, the John Howard Association, a court appointed monitor pursuant to the Duran consent decree, visits the jail approximately fifty times per year and has observed the intake procedure. (S.O.F. 60). It has never objected. (Id).
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These factors are additional evidence that Defendants had no reason to suspect the search policy violated clearly established statutory or constitutional rights.
For qualified innnunity not to apply, "the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Here, it was not. In fact, it was the lawfulness that was apparent. State and federal provisions authorized Defendants' conduct. Thus, Defendants are entitled to qualified innnunity.
3. Federal Precedent Dictates Qualified Immunity for Defendants Because They Acted in Accordance With Illinois Law.
It is axiomatic that officials who follow state and federal provisions should be protected by qualified immunity. For a central premise underlying qualified innnunity is "the need to avoid unfairly subjecting the official to liability for the good faith exercise of discretion pursuant to a legal obligation." Coleman v. Frantz, 754 F.2d 719, 727-28 (7th Cir. 1985). Even officials who depart from prison regulations "do not lose their qualified innnunity merely because their conduct violates some statutory or administrative provision." Davis v. Scherer, 468 U.S. 183, 194 (1984). If officials can maintain qualified innnunity despite violating a statutory provision, those who adhere to such provisions deserve qualified innnunity. The following cases involve instances in which qualified innnunity was found because the officials were acting pursuant to a regulation or statute.
The Supreme Court spoke on this issue in Wilson v. Layne, 526 U.S. 603 (1999). Layne involved police officers who served an arrest warrant with the media in tow. The Court determined the officers' conduct violated the Fourth Amendment. But the officers were entitled to qualified innnunity. Similar to the instant case, the officers' conduct was in accordance with a U.S. Marshals service policy and the local county's policy. Thus, "it was not unreasonable for law enforcement officers to look and rely on their formal ride-along policies." Id. at 617.
Examples of qualified immunity being granted abound in the Northern District. State actors sought qualified innnunity against an inmate's claim that he was routinely strip searched in Roy v. Jenkins, 1991 U.S. Dist. Lexis 14241 at *16 (N.D. Ill. 1991). The court cited to Bell, noting it "held that strip searches of convicted prisoners (and even pretrial detainees) did not violate the Fourth Amendment." Id. at *13. This pronouncement, coupled with the plaintiff's failure to state a particularized right existed, led the court to observe, "[the plaintiff! has no right
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to be entirely free from strip searches while in prison." Id at *15. Thus, it granted qualified immunity to prison officials because "strip searches are a valid prison security measure rationally related to a legitimate nonpunitive end." Id.
In Baushard v. Martin, 1993 U.S. Dist. LEXIS 23358 (N.D. Ill. 1993), the court considered whether a police official was entitled to qualified immunity after violating a police officer's due process rights. The official had not provided the officer with an adversarial hearing before discharging him. But the official "was following a CPD regulation which gave him discretion as to whether to institute adversarial proceedings." Id at *18. This necessitated a finding of qualified immunity. In Johnson v. Remmers, 2002 U.S. Dist. LEXIS 6518 (N.D. Ill. 2002), prison officials were granted qualified immunity "because they were acting pursuant to facially valid statutes and regulations." The court in Gonzalez v. TUmer, 775 F.Supp. 256, 265 (N.D. Ill. 1991), reached a similar conclusion when it held that an officer who follows a police regulation should be given qualified immunity. See also Zookv. Brown, 575 F.Supp. 72 (C.D. Ill. 1983) (sheriff granted qualified immunity regarding his disciplining of employee pursuant to Illinois statute). These cases signify that Defendants' actions were entirely reasonable as they were acting pursuant to the Illinois Administrative Code, Federal Bureau of Prisons directives, and the U.S. Marshals Service directives.
Federal appellate courts have made similar determinations. In Grossman, the Ninth Circuit invalidated a municipal ordinance prohibiting demonstrations in a public park without a permit. 33 F.3d 1200 (9th Cir. 1994). But the officer who arrested the demonstrator for violating the ordinance was entitled to qualified immunity. The court reasoned that "when a city council has duly enacted an ordinance, police officers on the street are ordinarily entitled to rely on the assumption that the council members have considered the views of legal counsel and concluded that the ordinance is a valid and constitutional exercise of authority." Id. at 1209. The D.C. Circuit held similarly in Lederman v. United States, 291 FJd 36 (D.C. Cir. 2002). Capitol Police were entitled to qualified immunity because they acted pursuant to a Capitol Grounds Regulation even though the regulation violated the First Amendment.
The Second Circuit's analysis in Connecticut ex reI. Blumenthal v. Crotty, 346 F.3d 84 (2d Cir. 2003), is also instructive. Connecticut brought suit arguing that New York's Nomesident Lobster Law discriminated against nomesidents of New York. The Second Circuit agreed,
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holding the statute violated the Privileges and Immunities Clause of the Fourteenth Amendment. However, the defendants were entitled to qualified inununity. "Without a clear legislative mandate or judicial order invalidating the Nonresident Lobster Law, the individual Appellants erred on the side of caution and relied upon the Nonresident Lobster Law's presumptive validity." Id. at 108. Finding this decision "objectively reasonable under the circumstances," the Second Circuit reversed the district court. Id.
In sum, even if the Court finds the underlying regulations constitutionally suspect, qualified immunity is still proper. State officials "are charged to enforce laws until and unless they are declared unconstitutional" and "the enactment of a law forecloses speculation by enforcement officers concerning its constitutionality." Michigan v. DeFillippo, 443 U.S. 31, 38 (1979). Accordingly, "even if the statute is arguably unconstitutional," officials are "obligated to
enforce it, and [are1 entitled to qualified inununity for any constitutional violation that might
have resulted." Egolfv. Witmer, 421 F. Supp. 2d 858, 876 (E.D. Pa. 2006). These cases are imbued in conunon sense. It is inconceivable that officials could be
individually liable when they were simply following state and federal guidelines. If the situation were otherwise, officials would be forced to navigate between the Scylla of ignoring the law and being derelict in their duty and the Charybdis of following the law and being individually liable. Courts recognize the intractable nature of such a dilemma. That is why officials in the aforementioned cases were granted qualified inununity. It is also why Defendants are entitled to qualified immunity.
B. Federal Precedent Regarding Strip Searches Did Not Clearly Establish Defendants' Conduct Was Unlawful.
Even if the Illinois Administrative Code and the federal directives are insufficient to bestow qualified immunity, the conflicting case law forecloses any doubt. To determine whether a right was clearly established, the Court looks to analogous cases decided before the defendant took the action challenged. Rakovich v. Wade, 850 F.2d 1180,1205 (7th Cir. 1988).
There are several cases permitting strip searches of detainees, as more thoroughly set forth in Defendants' Motion for Summary Judgment.3 Plaintiffs run headlong into the seminal
3 Defendants incorporate herein the constitutional contentions in their Motion for Summary Judgment on The Constitutionality of Search Policy.
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case of Bell v. Wolfish, 441 U.S. 520 (1979). In Bell, the Supreme Court held that the blanket policy of visual searches after every contact visit did not violate the Fourth Amendment. Id. at 558. The court reasoned that a "detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence." Id. at 559. The Supreme Court's pronouncement has been echoed by courts in this Circuit.
"Courts have routinely approved of visual searches of prisoners' rectal and genital areas." United States v. Oakley, 731 F. Supp. 1363,1371 (S.D. Ind. 1990). The district court in Liston v. Steffes, 300 F. Supp. 2d 742 (W.D. Wis. 2002), recognized that even minor offenders may be searched without reasonable suspicion if they are placed in the general jail population: "In this circuit, the law is well settled that strip searches may be performed on persons taken into custody on a misdemeanor or traffic violation ... if the person is going to be housed in the general jail population and not simply detained for release upon completion of the booking process." Id. at 756-57. Additionally, lllinois courts hold that strip searches of people arrested pursuant to failure to appear for misdemeanor warrants do not violate the Fourth Amendment. People v. Mitchell, 353 Ill. App. 3d 838, 840-41 (2nd Dist. 2004); People v. Johnson, 334 Ill. App. 3d 666, 672-73 (4th Dist. 2002).
These decisions clash with Northern District cases including Thompson v. Cook County, 428 F. Supp. 2d 807 (N.D. Ill. 2006), and Bullock v. Sheahan, 2008 U.S. Dist. LEXIS 59248 (N.D. Ill. 2008). This inconsistency necessitates qualified immunity.
Other courts have noted the uncertain landscape of strip search law necessitates qualified immunity. A district court held that a county sheriff was entitled to qualified immunity on claims that his strip search policy was unconstitutional in Powell v. Barrett, 376 F. Supp. 2d. 1340 (N.D. Ga. 2005), aff'd Powell v. Barrett, 2008 U.S. App. LEXIS 18907 (11th Cir. Sept. 4,2008) (en banc). It reasoned, "if the majority of the Eleventh Circuit continues to perceive room to debate the contours of this constitutional right, it seems to this Court that no state official could justifiably be charged with having 'fair warning' that conducting a strip search absent a reasonable suspicion of contraband violates the law." Id. at 1349. The First Circuit in Savard v. Rhode Island, 338 F.3d 23 (1st Cir. 2003), also granted qualified immunity in light of the existing uncertainty over the law of strip searches. See also Bahrampour v. Lampert, 356 F.3d
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969,977 (9th Cir. 2004) (upholding qualified immunity where "a conflict in the views of district
court judges on the issue [of strip searches1 demonstrates that the constitntionality of the
regulations was not clearly established"); Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir. 1985) (prison strip search "law was not charted clearly."). Conflicting case law in the Northern District and Seventh Circuit warrant the same treatment here.
The tension between the rights of detainees and the demands of institntional security engenders an environment of contrasting approaches. Courts have not provided a clear directive with regards to intake searches. To remedy this situation, courts have applied qualified immunity. This Court should do the same.
C. The Dangers of Jail Violence Warrant a Finding that Defendants' Conduct Was Lawful.
There are additional motivations to find for Defendants, namely, the security of the CCDOC. Institutional security is not an abstraction. Jail violence is endemic. The CCDOC's search policy seeks to stem this tide. The scale of the contraband seized reflects the gravity of the sitnation. The contraband reports differentiate this case from previous strip search cases. No other jail has created so detailed a record of the extent of smuggling drugs and weapons. No other jail has documented the prevalence of hiding contraband in bodily orifices, where a pat down or metal detector search would be ineffective. These realities demonstrate the dangers the correctional staff and inmates face and confirm the reasonableness of Defendants' actions. A reasonable jail policymaker could have believed that the problem of contraband justified visual searches.
Courts have highlighted the difficulties in striking a balance between the constitntional rights of the detainee and the penological interest in conducting contraband searches. Maintaining institutional security as well as the safety of jail officers and detainees are valid justifications for strip searches. Stanley v. Henson, 337 F.3d 966 (7th Cir. 2003) (noting that officers can consider every inmate as a potential carrier of contraband). Because institntional security is a legitimate law enforcement objective, there is a compelling reason for a strip search absent reasonable suspicion. Overton v. Bazzetta, 539 U.S. 126, 133 (2003). As a result, courts have invoked qualified immunity to protect correctional officials from strip search suits like this.
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CONCLUSION To reiterate, the dispositive inquiry in a qualified immunity determination is whether a reasonable official would understand that what he was doing was unlawful. Given that Defendants were following the law, the answer suggests itself. The Defendants' conduct in this case was the definition of lawful. The Defendants adhered to administrative code requirements and two sets of federal directives. To hold officials individually liable for conduct imposed by state and federal authorities is untenable with the rationale of qualified immunity. The ramifications of finding the search policy unconstitutional and Defendants without qualified immunity are far reaching. It will invite a deluge of challenges to federal correctional facilities following the same policy and hinder efforts to quell the rampant violence in correctional facilities throughout the country. WHEREFORE, the Sheriff Defendants respectfully request that this Court determine that the individual Defendants are entitled to qualified immunity and dismiss all claims against them. Defendants further seek any additional relief this Court deems just.
Respectfully submitted, THE SHERIFF DEFENDANTS
By: lsi Daniel F. Gallagher Daniel F. Gallagher Querrey & Harrow, Ltd. 175 WestJacksonBlvd., Suite 1600 Chicago, IL 60604-2827 (312) 540-7000 LD. #0905305
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 Case 1:06-cv-00552 Document 225 Filed 11/10/2008 Page 1 of 15

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

KIM YOUNG, RONALD JOHNSON, et al., Plaintiffs, v.
COUNTY OF COOK, et al., Defendants.

)

)

)

)

No: 06 C 552

)

Judge Matthew F. Kennelly

)

)

)

)

DEFENDANT COUNTY OF COOK’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

NOW COMES Defendant COUNTY OF COOK by its attorney RICHARD A. DEVINE, State’s Attorney of Cook County, through his assistant, Francis J. Catania, and moves this Honorable Court pursuant to Rule 56 of the Federal Rules of Civil Procedure to enter summary judgment in its favor and to dismiss Plaintiff’s complaint. In support thereof, Defendant states as follows:
INTRODUCTION
Defendant County of Cook stands accused of having a policy of strip searching jail detainees in an abusive manner and also a policy of strip searching persons charged with minor crimes without reasonable suspicion that they may be carrying contraband1 [EXHIBIT A, Third Amended Complaint]. The County of Cook is not liable because the County does not set operational policy for the Cook County Department of Corrections and under Section 1983 there is no respondeat superior liability. As a matter of well settled Seventh Circuit law, the County of Cook does not set policy for the Sheriff of Cook County and can have no direct liability for policies of the Sheriff because the County is unable to create or change such policies regarding the operation of the Cook County Department of Corrections. In addition, the strip search policy employed by the Office of the Sheriff of Cook County does not violate the constitution. The evidence in this record reveals only that the Sheriff is motivated to strip search detainees ONLY

1 All other claims in this suit have been settled and only these claims remain.
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because of the need to stop the introduction of weapons and contraband into the jail to preserve the safety and security of the jail, its employees and its detainees and prisoners.
STANDARD OF REVIEW A motion for summary judgment should be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact.” Fed. R. Civ. P. 56(c). However, a “[p]laintiff may not rely only on the bare assertions of his pleadings.” Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 651 (7th Cir. 2006) (citing Fed. R. Civ. P. 56(e)) (emphasis added). Local government units, such as the County of Cook, are not liable under § 1983 solely on a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658 at 690-91, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). A section 1983 action may be brought against a local government when the local government is shown to be the “moving force” behind the constitutional violation. Monell, 436 U.S. at 690 n.55. In Monell, the Supreme Court created two means of establishing local governmental liability under section 1983: policy and custom. A government policy or custom can be established in two ways. Policy is made when a “decision maker possessing final authority to establish municipal policy with respect to the action” issues an official proclamation, policy or edict. A course of conduct is considered to be a “custom” when, though not authorized by law, such practices of state officials [are] so permanent and well settled” as to virtually constitute law. The [County] is not required to pay any damages where neither it nor its employee is liable. Tibbs v. City of Chicago, 2005 U.S. Dist. LEXIS 4510 (N.D. Ill. Feb. 8, 2005).
FACTS Plaintiffs have pleaded that the County of Cook is directly liable for conducting strip searches in the Cook County Department of Corrections. The complaint describes this as a blanket policy of the County of Cook. [EXHIBIT A, Third Amended Complaint Paragraphs 6-8 “Complaint”]. The Complaint makes allegations at paragraphs 60(d), 66, 67, 75, 79, 84, 88, 93, and 98 that the County of Cook has such policies, yet plaintiff can point to no evidence to support that jail strip search policy is a policy of the County of Cook. Indeed, paragraphs 101
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and 104 of the complaint allege County employees participated in causing the harms alleged by the strip search policy, yet no evidence in the factual record shows Cook County itself; any Cook County policy maker; or any Cook County employee with policy making authority made such policy or policy.
All witnesses in this case who discuss the strip search policy are employees of the Sheriff of Cook County: Deputy Marlon Jones, Deputy Alvin Montique, Sgt. Erica Queen, Deputy Bryon Hatton, Deputy Brian Doyle, Dan Brown, Scott Kurtovich, Salvador Godinez and former Sheriff Michael Sheahan are all employees of the Office of the Sheriff [SOF #1-5].
There are two male class representatives in the case. Plaintiff/class representative Ronald Johnson was told to look at wall, not to look in any other direction except straight ahead [EXHIBIT B, Deposition of Ronald Johnson 55:1-6]. When ordered to put his clothes on, plaintiff/class representative Ronald Johnson could tell other detainees were dressing around him [Exhibit B, Johnson 67:21-24] but didn’t care about them and wasn’t observing them [Exhibit B, Johnson 68:1-3]. Plaintiff/class representative Kim Young testified about being taken to a gymnasium [SOF #9; EXHIBIT C, Young, 141:23-24 to 142:1-6] with 15-20 other females. A guard, ordered to disrobe and expose parts of her body to the guard, observed young. There was a divider separating her from other women. [SOF #9; Young, 142:12] This was different from when she was strip-searched in Waukesha County Jail in 2001. [SOF #10; Young, 143:3-8]. In 2001 she stood in line, and the women behind her could see her [SOF #10; Young, 143:12-15]. There are no witnesses and no evidence showing that the County of Cook directs policy-making by employees of the Sheriff regarding the operation of the Cook County Department of Corrections. For example, plaintiff deposed Marlon Jones [SOF #1; Jones, 4:9-12], Alvin Montique [SOF #2; Montique, 9:1-24], Erica Queen [SOF #3; Queen, 4:12-13], Bryan Hatton
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[SOF #4; Hatton, 5:8-9], and Brian Doyle [SOF #5; Hatton, 5:1-11]. Each of these persons is a Sheriff’s officer working at the jail and each was trained as an employee of the Office of the Sheriff. [SOF# 1, 2, 3, 4, 5]. Nearly all persons who are remanded to the jail actually enter the jail’s general population the evening of processing [SOF#29, Kurtovich 111:24-112:2]. The purpose of strip-searching persons before they enter the general population is to assure contraband does not enter the jail facility [SOF#30, Brown 145:12-16]. Although scanning machines are used more and more, the technology is not sufficiently developed that stripsearching can be abandoned altogether [SOF#31, Martin 173:6-13]
ARGUMENT
On April 25, 2007, the Court certified two classes under Rule 23: (1) all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004; and (2) all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004. The Complaint asserts that the County of Cook is liable for these strip searches, but the law and factual record of this case show the County of Cook maintains no such policy and even if it did the policy of the Sheriff in this regard is not unconstitutional.
I. THE COUNTY IS NOT LIABLE FOR CREATING OR IMPLEMENTING JAIL INTAKE STRIP SEARCH POLICY
It is undisputed that all the events in this case took place at the Cook County Department of Corrections. Pursuant to Illinois law the Sheriff is statutory custodian of the jail. He or she shall have the custody and care of the courthouse and jail of his or her county, except as is otherwise provided. See 55 ILCS 5/3-6017.
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Also as a matter of law, the Sheriff and his deputies are not County employees and, as a result, the County cannot be held liable for the alleged conduct of the Sheriff or his deputies. See Moy v. County of Cook, 159 Ill. 2d 519, 640 N.E.2d 926, 931 (1994) (holding that “the sheriff is a county officer and, as such, is not in an employment relationship with the County of Cook” and “therefore, the county may not be held vicariously liable for the sheriff’s alleged negligent conduct.”) accord O’Connor v. County of Cook, 787 N.E.2d 185, (1st Dist. March 10, 2003) (following Moy and holding that the County does not “bear any vicarious liability for the acts and omissions of the Sheriff and his staff.”)
Indeed, the Sheriff of Cook County is an independently elected constitutional officer who answers only to the electorate, not to the County government. Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989), cert. denied, 495 U.S. 929 (1990). Similarly, Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995) affirmed dismissal the plaintiff’s Section 1983 claims against DuPage County based upon the alleged conduct of the DuPage County Sheriff and stated that “it is plain that the county was properly dismissed; Illinois sheriffs are independently elected officials not subject to the control of the county.” By statute, Cook County Deputy Sheriffs and employees of the Department of Corrections are appointed by the Sheriff and perform all of their duties in the name of the Sheriff. See 745 ILCS 5/3-6008 and 5/3-6015. The County lacks the authority to establish any policies concerning training or the performance of duties by employees of the Sheriff’s office. Thompson, 882 F.2d at 1187.
In order to establish liability against the County, Plaintiff must identify the illegal conduct properly attributable to the County and show that the County was the “moving force” behind the alleged injury. This means that the Plaintiff must show that the action was taken with the requisite degree of culpability and demonstrate a direct causal link between the County action
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and the deprivation of federal rights. See Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). Plaintiffs fail to show that any illegal conduct was attributable to the County; much less show County was a moving force behind the injury. Therefore the County is not liable as alleged in the Complaint.
Because the Sheriff and his employees have no employment relationship with the County, the County cannot be held liable for the alleged misconduct of the individual defendants in this matter. See Moy, 640 N.E.2d at 931. Moreover, even if the deputies were County employees, under § 1983, there is no respondeat superior liability. Perkins v. Lawson, 312 F.3d. 872, 875 (7th Cir. 2002). Count VII paragraph 100 of the complaint alleges County of Cook is liable on a respondeat superior basis. There is no County employee remaining in the case. Scott, Martin, Rothstein, Winship, Bersky and Fagus have all been dismissed [SOF #15]. Under the doctrine of respondeat superior, an employer can be held vicariously liable for the tortious acts of its employees. Pyne v. Witmer, 129 Ill. 2d 351, 359, 135 Ill. Dec. 557, 543 N.E.2d 1304 (1989) and Alms v. Baum, 343 Ill. App. 3d 67, 71 (Ill. App. Ct. 1st Dist. 2003). The remaining defendants are employees of the Office of the Sheriff, who has sole authority to direct their actions. For purposes of respondeat superior liability, a servant is one whose physical conduct in performing the services is subject to the master's control or right to control Morgan v. Veterans of Foreign Wars of the United States, 206 Ill. App. 3d 569, 575, 151 Ill. Dec. 802, 565 N.E.2d 73 (1990). The County of Cook exerts no control over the named defendants or any other employee of the Sheriff.
In prior pleadings, Plaintiffs have suggested they adequately alleged customs, policies, and practices of the County of Cook violated federal rights of class members. No evidence exists in the factual record of this case to support such allegations. Plaintiffs allege that their injuries
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came about because the County followed a policy of strip-searching detainees in a harassing manner. However, even if true, this would not render the County liable. While a sheriff is viewed as a county officer, “count[ies] [are] given no authority to control the office of the sheriff,” Moy v. County of Cook, 640 N.E. 2d 926, 929 (Ill.1994). The Seventh Circuit has explicitly ruled that Illinois counties are not liable for their sheriffs’ actions under Monell, stating that “Illinois sheriffs are independently elected officials not subject to the control of the county.” Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995). Thus, County states that any policies promulgated by the Sheriff of Cook County or Michael F. Sheahan cannot be attributed to Cook County, and Cook County cannot be held liable under a respondeat superior theory. See Carver v. Sheriff of LaSalle County, 203 Ill. 2d 497, 787 N.E.2d 127, 136-37, 272 Ill. Dec. 312 (2003) ("… [S]heriffs answer to the electorate of the county from which they are elected, and not to the county board.") Finally, in Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995), the Seventh Circuit considered a § 1983 suit against the sheriff of DuPage County that attempted to impose municipal liability on the County of DuPage, for actions undertaken by the sheriff, the purported policymaker for the county. In Ryan, they affirmed the dismissal of the county as a defendant, holding that the sheriff is a policymaker for the county sheriff's office, not for the county itself. Ryan, 45 F.3d at 1092 and described Illinois sheriffs as “independently elected officials not subject to the control of the county” Franklin v. Zaruba, 150 F.3d 682, 685 (7th Cir. Ill. 1998).
The Seventh Circuit has recognized that in Section 1983 claims against Illinois sheriffs, Illinois counties have a duty to indemnify judgments or settlements entered against sheriffs or their deputies, and are accordingly necessary and indispensable parties for purposes of indemnification. See Carver v. Sheriff of LaSalle Co., 324 F.3d 947 (7th Cir. 2003). However,
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Plaintiffs, have not asserted a Carver indemnification claim, but rather, have asserted only direct and vicarious liability claims against the County of Cook. Such direct or vicarious liability claims are not viable under Thompson, Ryan, and Moy. If the Sheriff remains a party to this litigation in his official capacity, Plaintiff should be required to amend his Complaint to state a proper Carver indemnification claim for declaration against the County of Cook.
II. THE SHERIFF AND HIS EMPLOYEES DO NOT VIOLATE THE RIGHTS OF DETAINEES UNDER THE 4TH AND 14TH AMENDMENTS
Assuming Plaintiffs are allowed to amend their complaint to allege a proper Carver indemnification claim against the County of Cook, there still is no constitutional violation to indemnify. There is no constitutional violation where the strip search is no more intrusive than the one the Supreme Court upheld in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). First, and most fundamentally, the Court in Bell addressed a strip search policy, not any individual searches conducted under it. The Court spoke categorically about the policy, not specifically about a particular search or an individual inmate. See Bell, 441 U.S. at 560, 99 S. Ct. at 1885. Hudson v. Palmer, 468 U.S. 517, 538, 104 S. Ct. 3194, 3206, 82 L. Ed. 2d 393 (1984) cited Bell for the proposition that “[i]n some contexts, . . . the Court has rejected the case-by-case approach to the “reasonableness” inquiry in favor of an approach that determines the reasonableness of contested practices in a categorical fashion.”
The threshold determination here is whether a policy of strip search of a male detainee in the presence of other male detainees and male officers constitutes a constitutional violation. In the Complaint Plaintiffs allege that many men were ordered into a corridor where they were required to disrobe where they could observe each other in large groups. Plaintiffs’ claim of a constitutional violation based on the presence of officers and detainees during their strip search
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apparently satisfied the first inquiry for a municipal liability claim at the motion to dismiss stage. Now things are different.
The evidence in this case comes from the testimony of the named class representatives. Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and a class of others similarly situated, all testified as to certain procedures in regards to strip searching at the Cook County Department of Corrections. Johnson and Jones spoke of group strip searches but each described how guards told them to look straight ahead or at a line on the floor [SOF #6 & 7; Jones, 31:15-22] [SOF #8; Johnson, 55:1-4] and not to look around. To contrast this group strip search, Kim Young testified that following her arrest and bond hearing in January 2005, she was group strip searched in a gymnasium, but there was a divider which shielded her from the view of others except of course the guard. [SOF #9 & 10; Young, 141:23-24 to 142:1-6, 12]. This was only slightly different from her previous experience just 4 years prior in Wisconsin when she was strip searched individually but in a place where others in line could see her. [SOF #10; Young, 143:3-15]. The Wisconsin search was also a group strip search. None of the class representatives say much beyond the simple fact that strip searches were done in groups of persons who were involved in the process as new detainees. It is telling that Plaintiff Jones did not even discuss the search with other detainees because the strip search seemed to be a normal procedure so no one talked about it after it was done. [SOF#20, EXHIBIT D, Jones, 48:22-23]. If Plaintiffs/Class Representatives understand the need for strip searches in jails lawyers and judges can surely understand why the Supreme Court has recognized that security needs in the Bell situation found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater or less than those that justify searching an arrestee when he is being booked into the general population for the first time. At least one Federal Circuit, the 11th Circuit in
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And the searches conducted in the Bell case were more intrusive, and thereby impinged more on privacy interests, than those conducted in this case (see below, note 39 cited in Bell v. Wolfish, 441 U.S. 520, 558 (U.S. 1979).
The judicial orders issued at the motion to dismiss stage and the motion for class certification stage assumed that group strip searches violated the 4th Amendment. A survey of cases addressing this issue directly has NOT found any saying group searches are unconstitutional. In San Bernardino, the Court’s order on the motion to dismiss considered the fact that strip searches occurred in groups as a factor weighing against their constitutionality but did not decide whether group strip searches independently violated the Fourth Amendment. See Craft v. County of San Bernardino, 468 F.Supp.2d 1172 (C.D.Cal. 2006). Craft v. County of San Bernardino, 2008 U.S. Dist. LEXIS 27526 (D. Cal. 2008). In Adams, when denying Plaintiff’s motion for summary judgment, the Court ruled plaintiff failed to provide evidence that his constitutional rights were violated. Rather, plaintiff relies solely on the broad theory that all group strip searches are unlawful. The complaint was ruled to not state a claim. Additionally, in that case, plaintiff provided no evidence that County policy was behind the searches of plaintiff. Adams v. County of Sacramento, 2007 U.S. Dist. LEXIS 15666, 8-9 (D. Cal. 2007). In Boissiere v. Foti, 1988 U.S. Dist. LEXIS 11266 (D. La. 1988) the court was asked among other things to determine if group strip searches violated the right to privacy. Again the answer was no.
Recently, the 11th Circuit had a chance to look at, among others, the very issue raised here about group searches. The court's Powell v. Barrett en banc concern was in strip searches conducted on five detainees who were members of the arrestee group where neither the charge itself nor any other circumstance supplied reasonable suspicion that the detainee might be concealing contraband. The court upheld the policy of strip searches, at least where the strip
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search was no more intrusive than the one the U.S. Supreme Court upheld in Bell v. Wolfish. To the extent that the court's decision in Wilson v. Jones, 251 F. 3d 1340 (11th Cir. 2001), finding a constitutional violation, was inconsistent with the court's present reasoning, the court overruled it. At least one district judge in this Circuit relied in part on the reasoning of the now overruled Wilson case: Judge Gettleman citing with favor the Wilson court conclusion regarding persons charged with misdemeanors a strip search policy that did not require reasonable suspicion violated Fourth Amendment Calvin v. Sheriff of Will County, 405 F. Supp. 2d 933, 940 (N.D. Ill. 2005) [citing Wilson v. Jones, 251 F.3d 1340, 1342 (11th Cir. 2001)]. In Calvin, the Court found a county detention facility’s blanket strip search policy violated the Fourth Amendment as applied to arrestees detained on a failure-to-appear warrant in a misdemeanor or traffic case and misdemeanor or traffic detainees who were being processed for release following a court appearance. In evaluating the Bell decision, the Eleventh Circuit correctly notes that “the Supreme Court instructed us that jail officials should be accorded wide-ranging deference in the adoption and execution of policies and practices to preserve internal order and discipline and to maintain jail security. Assuming that the detainees being booked into the jail retained some Fourth Amendment rights, those rights were not violated by a policy or practice of strip searching each one of them, including full body visual searches, as part of the booking processes. The [Bell] court rejected a reasonable suspicion requirement for such policy or practice.” Powell v. Barrett, 2008 U.S. App. LEXIS 18907 (11th Cir. Ga. Sept. 4, 2008).
Specifically, the Powell en banc court was met with the following factual scenario drawn from the District Court record:
[H]aving the arrested person go into a large room with a group of up to thirty to forty other inmates, remove all of his clothing, and place the clothing in boxes. (Id. P 181.) The entire group of arrestees then takes a shower in a single large
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room. (Id. PP182, 238.) After the group shower each arrestee "either singly, or standing in a line with others, is visually inspected front and back by deputies." (Id. P183.) "Then each man [takes] his clothes to a counter and exchange[s] his own clothes for a jail jumpsuit." (Id. P 239.) Identifying an illustrative case, the complaint alleges that one of these five plaintiffs "along with every other inmate in the process, had to stand before a guard front and center, and show his front and back sides while naked." (Id. P240.) There is no allegation that any members of the opposite sex either conducted the visual searches or were present while they were being conducted. Nor is there any allegation that the searches were conducted in an abusive manner. Powell v. Barrett, 541 F.3d 1298 at (11th Cir. Ga. Sept. 4, 2008). Emphasis supplied. This group strip search practice is little different in terms of numbers and duration as that employed by the Sheriff. Aside from there being a group searched at one time, none of the plaintiff/class representatives testifies about specific conduct that might indicate the search was conducted as a matter of policy, with the intent to abuse. All agree that the place where the male strip search is conducted is a narrow hallway. No evidence exists that shows members of the opposite sex were present during the search. There are really no allegations of verbal abuse by guards directed toward the plaintiff/class representatives. There is no proof showing these plaintiff/class representatives were physically hurt by deputies. Even if we are to believe someone present during the strip search was threatened or that a deputy used racially derogatory language in the present of the plaintiff/class representative, allegations such as these simply do not implicate protected constitutional rights. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (even “racially derogatory language, while unprofessional and deplorable, does not violate the Constitution”). There is no claim that the strip search was performed any differently than those already approved in Bell, which were conducted as a matter of policy on all person detained. In fact, the Bell court described the precise nature of the strip searches done at the MCC: “If the inmate is a male, he must lift his genitals and bend over to spread his buttocks for visual inspection. The vaginal and anal cavities of female inmates also are visually inspected.
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The inmate is not touched by security personnel at any time during the visual search procedure. 573 F.2d, at 131; Brief for Petitioners 70, 74 n. 56. Bell v. Wolfish, 441 U.S. 520, 558 (U.S. 1979). And again, the Bell Court upheld this method of strip searching detainees.
III. EQUAL PROTECTION GROUND FAILS SINCE THE EVIDENCE SHOWS NO SIGNIFICANT DISPARITY OF TREATMENT IS BASED ON GENDER
The Complaint alleges that these strip searches are a violation of both the 4th Amendment and the 14th Amendment. According to the plaintiffs’ theory, since women have dividers and men do not, men have an equal protection claim. There remains no evidence or law supporting a position that dividers are a constitutionally required minimum. Plaintiffs suggest that the only difference between the searches conducted on men and women is based on gender. The evidence however highlights several reasons men and women are not similarly situated. In addition to gender, 1) women are searched in a gymnasium giving rise to the need for dividers to afford more protection from prying eyes not associated with the process while men are searched in a tunnel where access is easily controlled; 2) women have monthly bodily processes that might cause additional concern for privacy due to additional embarrassment which men clearly do not have to deal with; and 3) the numbers of women entering the jail far less than men, which by itself makes treating males different. There is no essential difference between the use of a privacy screen and the use of an order not to look at the persons next to you.
It is important to note that women are not strip searched in the same area as men. Women are strip searched in the division to which they have been assigned and there is no evidence that male correctional officers are ever involved in that process. Women are searched in a gymnasium [SOF#9], while men are searched in a hallway [SOF#16]. This difference alone can reasonably support the use of dividers in a gymnasium where the physical structure makes the
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place of the search less conducive to affording privacy and increases the likelihood that someone not involved in the process would be able to observe. Each male plaintiff/class representative described how he was ordered to face the wall and/or look at a line on the floor, thereby being ordered not to look around. This direction to avoid looking at others serves the same “privacy” concern as the dividers in a gymnasium. A policy is subject to scrutiny under the equal protection clause of the fourteenth amendment, which requires that the party seeking to uphold a policy that expressly discriminates on the basis of gender must carry the burden of showing an “exceedingly persuasive justification” for the differing treatment. Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 3336, 73 L. Ed. 2d 1090 (1982). If the evidence showed that women were not strip searched and men were, this might raise an equal protection issue. However, the factual record shows that both men and women are subjected to a strip search prior to admission into general population. Plaintiffs can point to no policy, which expressly discriminates; they can only point to one policy of strip searching detainees at intake, where an order to males not to look at each other is the functional equivalent of a privacy screen.
CONCLUSION
At this juncture, the Plaintiffs case shows that no policy of the County has caused a violation. It shows that the Sheriff has conducted strip searches in accordance with those already approved by the Supreme Court in Bell. That the Class representatives themselves can point to nothing beyond group strip searches, applicable to all including women, and that those persons are by and large charged with felonies and that some offices might use rude and offensive language in the presence of detainees being searched – though it seems to be comments about smell.
Despite Bell v. Wolfish, Courts still have difficulty evaluating a jail strip search policy. The Sixth Circuit identified one such problem. A district judge had allowed emotional response to be his guide. The 6th Circuit wrote: “[i]t is troubling to consider how much of our visceral
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reactions to strip searches, pro and con, may rest upon perceptions of class and sex.” See Dufrin v. Spreen, 712 F.2d 1084, 1088 (6th Cir. 1983): “In directing a verdict for Dufrin, the trial judge observed that he did not like the idea of police routing ‘middle-class housewives’ out of their beds ‘at 11:30 at night’ and forcing those housewives to submit to strip-searches . . . . We cannot believe from these comments that the trial court was implying that a different rule ought to exist for a female who was not middle-class, or who was not a housewife, or who was not from the suburbs. Any suggestion [otherwise] is in our view neither legally nor morally supportable” Dufrin v. Spreen, 712 F.2d 1084, 1088 (6th Cir. Mich. 1983). This court should not let visceral reactions to strip searches be the guide.
WHEREFORE, Defendant County of Cook respectfully requests that the Court grant Summary Judgment in favor of the County of Cook, dismiss plaintiffs’ liability claims against the County as set forth in the complaint, in their entirety. In addition, the Defendant County of Cook asks this court to rule that Plaintiffs have not pleaded a claim for indemnification and dismiss the County entirely. In the alternative, Defendant County of Cook asks this court to maintain the County of Cook as a party defendant solely for the purposes delineated in Carver v. Sheriff of LaSalle Co. and order plaintiff to re-plead. Defendant County of Cook also requests the Court order further relief as the Court may deem necessary and appropriate.
Respectfully Submitted, RICHARD A. DEVINE State's Attorney of Cook County By: /s/ Francis J. Catania Francis J. Catania ARDC # 6203188 Assistant State’s Attorney Richard J. Daley Center 50 W. Washington Street, Room 500 Chicago, IL 60602 (312) 603-6572
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 Case: 1C:0a6s-ec:v-0090-5257297DocuDmoecnutm#e:n3t6: 21-F4iled:F0il7e/d1:50/079/1P5/a2g0e091 of 2PPagaegse:ID2 #:8316

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley 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

July 15, 2009

PLRA FEE NOTICE AND ORDER

No.: 09-2797

KIM YOUNG, Plaintiff - Appellant
v.
COOK COUNTY, ILLINOIS, et al., Defendants - Appellees

Originating Case Information:
District Court No: 1:06-cv-00552 Northern District of Illinois, Eastern Division Court Reporter Laura M. Brennan Clerk/Agency Rep Michael W. Dobbins District Judge Matthew F. Kennelly
Circuit Rule 3(b) empowers the clerk to dismiss an appeal if the docket fee is not paid within fourteen (14) days of the docketing of the appeal. This appeal was docketed on July 15, 2009. The District Court has indicated that as of July 15, 2009, the docket fee has not been paid. Depending on your situation, you should:

1. Pay the required $450.00 docketing fee PLUS the $5.00 notice of appeal filing fee to the District Court Clerk, if you have not already done so. The Court of Appeals cannot accept this fee. You should keep a copy of the receipt for your records.
2. File a motion to proceed on appeal in forma pauperis with the District Court,

Case: 1C:0a6s-ec:v-0090-5257297DocuDmoecnutm#e:n3t6: 21-F4iled:F0il7e/d1:50/079/1P5/a2g0e092 of 2PPagaegse:ID2 #:8317
along with a certified copy of your prison trust account statement for the six (6) month period preceding the filing of the notice of appeal, if you have not already done so. An original and three (3) copies of that motion, with proof of service on your opponent, is required. This motion must be supported by a sworn affidavit in the form prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure (as amended 12/01/98), listing the assets and income of the appellant(s).
3. If the motion to proceed on appeal in forma pauperis is denied by the district court, you must either pay the required $450.00 docketing fee PLUS the $5.00 notice of appeal filing fee to the District Court Clerk, within fourteen (14) days after service of notice of the action to the district court, or within thirty (30) days of that date, renew your motion to proceed on appeal in forma pauperis with this court. If the motion is renewed in this court, it must comply with the terms of Fed. R. App. P. 24(a). In addition, you must provide this court with a brief memorandum explaining why you contend the district court's denial of leave to proceed on appeal in forma pauperis is erroneous. NOTE: The document should be titled "MEMORANDUM IN SUPPORT OF PLRA MOTION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS" and must be filed within thirty (30) days of service of the order of the district court.
Further, this appeal is subject to the Prison Litigation Reform Act. Accordingly, IT IS ORDERED that all other proceedings in this appeal are SUSPENDED pending the assessment and payment of any necessary fees. See Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997). The court will take no further action in this appeal until the fee status is resolved.
Neither party should tender any brief or motion that is not related to appellant's fee status on appeal. Appellee is under no obligation either to file a brief or to respond to any such motion filed by appellant. Any motion not related to appellant's fee status will be deemed denied without further court action.
form name: c7_PLRA_FeeNoticeSent_DC (form ID: 227)

 
 Order Form (01/200C5) ase: 1:06-cv-00552 Document #: 495 Filed: 11/17/09 Page 1 of 5 PageID #:12036
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Matthew F. Kennelly 06 C 552

Sitting Judge if Other than Assigned Judge
DATE
Mercado vs. Dart

11/17/2009

DOCKET ENTRY TEXT
For the reasons stated below, the Court denies defendant’s motion for judgment as a matter of law or for a new trial [# 470]. The Court directs the Clerk to terminate motions 415 and 436, upon which the Court previously ruled.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
A jury found in favor of the plaintiffs as to liability in this class action. The defendant, Cook County Sheriff Thomas Dart, has moved for judgment as a matter of law or for a new trial.
1. U.S. Department of Justice report
The Court admitted pursuant to Federal Rule of Evidence 803(8) an excerpt of a report by the U.S. Department of Justice (USDOJ) issued to the Sheriff pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997a. The Sheriff argues that the report contained double-hearsay, it consisted of opinions and conclusions, and it was unfairly prejudicial, in part due to its purportedly late identification by plaintiffs. This matter was fully briefed as a part of a pretrial motion in limine by Dart on which the Court heard extensive argument and made a detailed ruling. See 7/29/09 Tr. 42-52.
The Court deals with Dart’s timeliness point first. Plaintiffs persuasively argued in the motion in limine briefing that it was Dart who should have produced the report in discovery but failed to do so. Plaintiffs discovered it on their own and identified it as a possible exhibit in reasonably prompt fashion after discovering it. Dart has identified no real prejudice arising from the late disclosure. Though he contends that the information in the report could not be verified, the report itself contained an offer by USDOJ to provide information that would enable Dart to identify particular incidents referenced in the part of the report in question.
The Court correctly ruled that the report qualified for admission under Rule 803(8). In the language of that Rule, the report amounted to “factual findings resulting from an investigation made pursuant to authority granted by law.” Fed. R. Evid. 803(8). See, e.g., Palo v. Dallas County, No. 3:05-CV-0527-D, 2007 WL 2140590, at *8 (N.D. Tex. 2007); R.G. v. Koller, 415 F. Supp. 2d 1129, 1133 n.1 (D. Haw. 2006); McKnight

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v. District of Columbia, 412 F. Supp. 2d 127, 133 n.7 (D.D.C. 2006) (all admitting similar reports under Rule 803(8)). Dart argued prior to trial, and argues now, that the sources of information indicated lack of trustworthiness, but that argument was unpersuasive. Dart’s argument along these lines may have implicated the appropriate weight to be given the report, but it did not affect the report’s admissibility. The same is true of Dart’s double-hearsay argument. See generally Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994); Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1309-10 (5th Cir. 1991); McClure v. Mexia, 750 F.2d 396, 399-400 (5th Cir. 1985). As indicated above, Dart had all the tools needed to attempt to refute the report if he wished to do so, and he had both the ability and the opportunity to argue its weight before the jury.

Dart’s objection also suggests that the Court should have excluded the report under Federal Rule of Evidence 403 as unfairly prejudicial. The Court is unpersuaded that the balancing required under Rule 403 favors exclusion. Before evidence may be excluded under that rule, its probative value must be “substantially outweighed” by the danger of unfair prejudice (etc). Fed. R. Evid. 403 (emphasis added). Such was not the case here.

Finally, and in any event, in the overall context of the trial Dart suffered no appreciable harm from the admission of the USDOJ report. The incidents described in the report were far less specific and detailed than those discussed by the nearly twenty detainees who testified during the trial. The jury’s determination regarding what happened during intake strip searches largely boiled down to a determination of whether to believe those witnesses. The particular incidents referenced in the USDOJ report paled by comparison.

The Court also notes that Dart himself offered, and the Court admitted, reports by Illinois authorities regarding their inspections of the Cook County Jail. These reports were admitted on the same basis as the USDOJ report. The USDOJ report was no less admissible than the state authorities’ reports.

2. References to the L3 body scanning machine

Defendant says that the Court excluded reference to the Jail’s use of a body scanning machine. The Court agrees with plaintiffs that defendant has mischaracterized the record as well as the Court’s ruling.

At the final pretrial conference, the Court became aware that in or around March 2009, the Cook County Jail purportedly had begun to use a body scanning machine to examine male inmates at intake, allegedly in lieu of strip searches. Plaintiffs objected to the admission of this evidence at trial primarily on the ground that they had not been advised until late June 2009 (about six weeks before trial) of a policy change that supposedly had taken place more than three months earlier and that, one could reasonably infer, had been decided upon even before that. See July 27, 2009 Tr. 58-61. Dart did not dispute that his counsel first advised plaintiffs’ counsel about the change in policy in June 2009, three months after it supposedly went into effect. Id. 63; see also id. 60-61. As a result, plaintiffs argued, they had been completely foreclosed from attempting to determine whether the policy was actually being enforced and whether strip searches were still occurring. Id. 64.

Because plaintiffs were hamstrung in responding to the claimed policy change, the Court ruled that the liability trial would cover only the period through March 18, 2009, the date on which the change purportedly took effect. Id. 64. This made the alleged policy change effectively immaterial and irrelevant for purposes of the trial.

Contrary to Dart’s argument in his post-trial motion, Dart himself injected into the trial the use of the body scanning machine for searches of male detainees. See Pls.’ Resp. to Def.’s Mot. for Judg. at 9 (citing trial

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transcript). The Court allowed a good deal of this evidence to be admitted. Dart contends that the Court “refused” what Dart characterizes as his “attempt[ ] to explain why the L3 was being used” via witness Dan Brown. Def.’s Mot. for Judg. at 6 (“Through Dan Brown, the Sheriff attempted to explain why the L3 was being used. The Court refused. This ruling prevented a number of issues from being discussed.”). This, to be charitable, is revisionist history. During Brown’s examination, Dart introduced, without objection or adverse ruling, a good deal of evidence regarding an alleged “pilot project” relating to the L3 scanning machine. Tr. Vol. V 1169-71. Plaintiffs’ counsel objected when the testimony reached a point where it appeared it might run afoul of the Court’s pretrial ruling barring evidence regarding the claimed March 2009 policy change. Id. 1172. After hearing extensive argument outside the jury’s presence, the following interchange took place between the Court and Dart’s counsel:

THE COURT: So what additional are you planning to do at this point regarding with [sic] this witness regarding the subject of this body scanning machine that is in these pictures and so on?

MR. CATANIA: This one, nothing further. We have another one coming up. That is the female’s body scan.

Id. 1180-81 (emphasis added). Plaintiffs’ counsel advised that he did not object to introduction of evidence regarding use of a body scanning machine for searches of female detainees. Id. 1181.

In short, the contemporaneous comments of Dart’s own counsel at the time of the Court’s ruling put the lie to Dart’s current argument that the Court “refused” to allow witness Brown to explain further. Rather, Dart’s counsel said that he did not have further questions for Brown on the topic.

Following this discussion, the Court determined that to avoid running afoul of the pretrial ruling concerning the claimed policy change, no further evidence regarding use of a body scanning machine for searches of male detainees would be introduced “until I have an opportunity to address this further.” Id. 1183-84. At the start of the next day of trial, after hearing further argument, the Court stated that “I don’t want there to be any further questions or answers that even by implication talk about a change in procedures in March of 2009 . . . .” Id., Vol. VI 1306-07. The Court advised both sides that “if you think that there’s something along those lines that you need to get in, on either side, you need to front it with me first at a sidebar before it is asked of a witness and before you ask a question that I conclude after the fact is reasonably likely to draw testimony like that out of a witness’ mouth.” Id. 1308. After this, Dart never once asked the Court to introduce further evidence regarding use of the L3 scanning machine. In short, Dart has forfeited any argument regarding introduction of further evidence about the L3 machine, and even if he had not done so, the argument is without merit, because he was offered an opportunity to advise the Court about any further evidence on the topic he wished to offer, but never took that opportunity.

3. Jury instructions

In his motion for new trial, Dart “adopt[ed] and incorporate[d] by reference all objections made to Plaintiffs’ tendered instructions as stated in the jury instruction conference.” Def.’s Mot. for Judg. at 6. This onesentence argument forfeits the issue because it fails to develop whatever points Dart was making. See, e.g., White Eagle Co-op. Ass’n v. Conner, 553 F.3d 467, 476 n.6 (7th Cir. 2009) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived . . . .”).

In any event, the sole objection that Dart pressed involved whether the Court should give the jury a list of

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factors to be considered in deciding plaintiffs’ due process and equal protection claims. See Trial Tr. 189091 (discussing defense comments on instructions). Indeed, that is the only instruction that Dart discussed in his reply brief on the current motion after plaintiffs made their argument about forfeiture. See Def.’s Reply at 10. The Court declined to give a list of factors because it found them incomplete and, in part, argumentative, a ruling that the Court continues to believe was correct. In any event, the Court specifically permitted counsel to discuss these or any other factors during closing argument. Trial Tr. 1890.

Dart also complains that the instructions omitted or downplayed the factor of jail security. The Court disagrees. The instructions made it clear that jail security was “an important governmental objective and a legitimate governmental purpose.” See, e.g., Jury Instructions 14.

4. Weight and sufficiency of the evidence

Dart argues that the jury’s verdict on each of the claims was against the manifest weight of the evidence. A court considering a motion for new trial may not set aside the jury's verdict “if a reasonable basis exists in the record to support the verdict, viewing the evidence in the light most favorable to the prevailing party, and leaving issues of credibility and weight of the evidence to the jury.” Kapelanski v. Johnson, 390 F.3d 525, 520 (7th Cir. 2004); see also, Wipf v. Kowalski, 519 F.3d 380, 384 (7th Cir. 2008).

In their argument, Dart repeatedly mischaracterizes plaintiffs’ claims that were tried to the jury. As was made abundantly clear on numerous occasions, plaintiffs did not challenge the fact of a strip search; rather they challenged the manner in which Sheriff’s personnel conducted the search. In its final instructions, the Court described the parties’ contentions as follows:

The plaintiffs contend that upon intake to the Cook County Jail, they were subjected to searches that were conducted in an inhumane and unreasonable manner, and that they were inappropriately subjected to harsher searches than women.

The defendant contends that searches were conducted in an appropriate manner and for the purpose of safety and security at the Jail. The defendant also contends that any differential treatment of men and women was justified.

Jury Instructions 11. Plaintiffs’ equal protection claim concerned differences in which men and women were searched on intake; their due process claim required them to prove that “[s]trip searches were done in a manner that was not rationally related to a legitimate non-punitive governmental purpose, or the searches were done in a manner that appears excessive in relation to that purpose”; and their Fourth Amendment claim required them to prove that they “were searched in an unreasonable manner.” Jury Instructions 15-17.

The jury’s decision on each of the claims largely boiled down to a credibility contest, as the Court has discussed. The plaintiffs’ witnesses all testified that they were strip searched and body cavity searched in a group, shoulder to shoulder, with no privacy protection. The jury was entitled to believe these witnesses’ testimony over that of the several Sheriff’s personnel who testified in contrary fashion. In addition, enough of the plaintiffs’ witnesses testified that they were subjected to degrading comments and treatment that the jury was entitled to find that this, like the practice of strip searching and body cavity searching new detainees in a group without privacy, amounted to a policy of the Sheriff. Moreover, Dart has cited no case that holds that group strip searches conducted in this manner on pretrial detainees are per se legal (indeed the law is to the contrary, see Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009)), or that suggests that a jury finding of liability in this situation is against the manifest weight of the evidence. In addition, Dart’s arguments that

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certain elements of what plaintiffs claimed are not illegal or improper standing alone misses the point; the jury properly considered the totality of the circumstances, not bits of evidence considered in isolation. In sum, no new trial is required, nor are defendants entitled to judgment as a matter of law.
As part of their “manifest weight” argument, Dart challenges additional evidentiary rulings that the Court made. He advances no reason why any of these rulings were incorrect, let alone prejudicial in a way that would require a new trial.
- First, Dart’s counsel never offered any decent reason why the fact that a detainee had had a bond hearing had anything to do with the proper manner of an intake strip search. In any event, Dart managed to get in, on several occasions, evidence that detainees had come from the court system before the intake search, and he was not precluded from arguing that this evidence might show that the plaintiffs’ witnesses were mistaken or lying about what happened to them.
- Second, the nature of the testifying plaintiffs’ charges had no bearing on how they were searched, as Dart’s witnesses made it clear that all detainees are searched the same way, irrespective of the charges against them. And as plaintiffs point out, Dart was able to introduce before the jury the fact that the Jail housed persons accused of serious crimes – something that would have been obvious to the jury in any event.
- Third, Dart was not prejudiced by the inability to introduce specific instances in which contraband was found. Dart was given the opportunity to articulate how this impacted the manner of the search as challenged by plaintiffs (as opposed to the fact of the search), and he could offer nothing. And in any event, Dart was able to introduce a number of specific instances in which contraband was found, so even if the ruling was wrong, Dart was not unfairly prejudiced in a way that would require a new trial.
- Fourth, Dart did not object to testimony by certain plaintiffs about their feelings of humiliation, so he has forfeited that point. The Court also rejects Dart’s remaining evidentiary arguments for the reasons that formed the basis of the Court’s rulings before and during the trial.
Finally, the Court rejects Dart’s argument that he is entitled to judgment as a matter of law on plaintiffs’ equal protection claim based on the differential treatment between male and female detainees in intake searches. His argument essentially consists of a request that the Court reweigh the evidence, see Def.’s Mot. for Judg. 14-15, which is not the standard for determining a motion for judgment as a matter of law. See Filipovich v. K&R Express Sys., Inc., 391 F.3d 859, 963 (7th Cir. 2004). It is beyond question that the Sheriff treated male and female detainees differently in searching them at intake during the relevant period, and there was more than sufficient evidence supporting a finding that the differences were not justified under the standard that Dart agreed applies to equal protection claims.

06C552 Mercado vs. Dart

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 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------Case: 1:06-cv-00552 Document #: 650 Filed: 03/04/11 Page 1 of 9 PageID #:16105

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

KIM YOUNG, RONALD JOHNSON, WILLIAM JONES, ALLEN GORMAN, GERRAD LAMOUR, LEE MERCADO, BRADLEY HYTREK, CARL GRAY, and MATTHEW LIPTAK, on behalf of themselves and a class of others similarly situated,
Plaintiffs,
v.
COUNTY OF COOK and SHERIFF TOM DART in his capacity as Head of the Cook County Sheriff's Department,
Defendants.

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No: 06-CV-552

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JUDGEKENNELLY

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) JURY TRIAL DEMANDED

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FINAL JUDGMENT On November 24, 2010, the Court entered its Order Granting Preliminary Approval of Class Action Settlement and Directing Notice to Settlement Classes. After notice was sent to the Settlement Classes,1 this Court held a Final Approval Hearing on March 1, 2011, for the purpose of determining (1) whether the proposed settlement, on the terms set forth in the Parties' Settlement Agreement, is fair, reasonable, and adequate, and should be finally approved by this Court; (2) whether, pursuant to the terms of the proposed settlement, a judgment should be entered dismissing Defendant County of Cook and Sheriff Tom Dart and releasing Defendants

1 All terms and phrases used in this Order shall have the same meaning as in the Class Action Release and Settlement Agreement dated November 16, 2010, including the exhibits (the "Settlement Agreement").

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and the other Releases from all Released Claims; and (3) whether to award attorneys' fees and expenses to Class Counsel and Class Member Incentive Awards.
The Court, having reviewed the Settlement Agreement and all papers submitted in connection with the proposed settlement, and having considered all arguments of counsel and objectors; finds that the Parties have evidenced full compliance with the Preliminary Approval Order, and that there are substantial and sufficient grounds for entering this Order Granting Final Approval of Settlement and Final Judgment ("Final Order and Judgment"). The Court therefore directs the Parties and their counsel to implement and consummate the Settlement Agreement and directs the administration of the settlement in accordance with the terms and provisions of the Settlement Agreement.
IT IS THEREFORE ORDERED as follows: 1. The Court has federal subject matter jurisdiction of this Action and jurisdiction to approve the settlement. 2. The Court has personal jurisdiction over the Named Plaintiffs and all members of the Settlement Classes. 3. Pursuant to Federal Rule of Civil Procedure 23, the Court finds that (a) members of each Settlement Class are so numerous as to make joinder of all members impracticable; (b) there are questions of law or fact common to each of the Settlement Classes; (c) the claims of the Named Plaintiffs are typical of the claims of the Settlement Classes they represent; (d) the Named Plaintiffs and Class Counsel fairly and adequately protected and will continue to protect the interests of the members of the Settlement Classes; (e) questions of law or fact common to the members of each of the Settlement Classes predominate over any questions affecting only individual members; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the Action.
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4. The Court therefore finds that the requirements for certifying a settlement class have been met and are appropriate under the circumstances of this case pursuant to Federal Rule
of Civil Procedure 23(b)(3). The Court certifies for settlement purposes only the following
Settlement Classes, with the Named Plaintiffs representing each Settlement Class as follows:
(a) Settlement Class I (Class Representatives: Ronald Johnson)
All males who were subjected to a strip search and/or visual body cavity search as a new detainee at the Cook County Jail between January 30, 2004 and March 30,2009. (b) Settlement Class II (Class Representatives: Kim Young, Carl Gray, Matthew Liptak, Lee E. Mercado, Gerrard Lamour, Allen Gorman, Bradley Hytrek, William Jones) All people (male and female) charged with only a misdemeanor or lesser offense not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as a new detainee at the Cook County Jail between January 30, 2004 and March 30, 2009. (c) Excluded from these Settlement Classes are the following persons:
(i) Members of the Northern District of Illinois federal judiciary and their immediate families; and
(ii) All persons who have timely elected to opt out of or exclude themselves from the Settlement Classes in accordance with the Court's Orders. 5. The Court gives final approval to the settlement as fair, reasonable, and adequate to the Named Plaintiffs and to each member of the Settlement Classes, and in their best interests, and in full compliance with all requirements of due process and federal law. The settlement is finally approved in all respects.
6. The Settlement Agreement, settlement of this Action, or any proceedings taken pursuant thereto, are not, and should not in any event be offered or received as evidence of, a
presumption, concession, or an admission of liability or of any misrepresentation or omission in
any statement or written document approved or made by Defendant; provided, however, that
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reference may be made to this Agreement and the settlement provided for herein m such proceedings as may be necessary to effectuate the provisions of this Agreement.
7. The Court finds that the Mailed Notice, Published Notice, and Notice Plan implemented pursuant to this Agreement (i) constituted the best practicable notice; (ii) constituted notice that is reasonably calculated under the circumstances to apprise members of the Settlement Classes of the pendency of the Action, their right to object or exclude themselves from the proposed settlement and to appear at the Final Approval Hearing, and their right to make a claim under the settlement; (iii) were reasonable and constituted due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) met all applicable requirements of due process and federal law.
8. The Court finds that Class Counsel and the Named Plaintiffs adequately represented the Settlement Classes for the purpose of entering into and implementing the Settlement Agreement. The Court further finds that Rust Consulting, Inc., the Court-appointed Claims Administrator, has met all requirements of the Court as set forth in the Preliminary Approval Order and Settlement Agreement.
9. The Court has considered all objections, including those that may not technically qualify as objections and those that were filed after the objection deadline. This includes objections submitted by James Harris and Alicia Kimbrough-Hassan. After considering the objections, and all briefing and oral argument offered in support of or in opposition to same, and for the reasons stated in open court at the Final Approval Hearing, the Court finds that the objections are without merit. Accordingly, all objections are hereby overruled.
10. The Court hereby dismisses the Action (including all individual and class claims against Defendants) with prejudice and without fees or costs except as expressly provided in the Settlement Agreement; except that, by consent of the Parties, the Court shall retain jurisdiction
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over this Action until all aspect of the settlement of this Action, including any proceedings on the Assigned Claims are fully resolved. Except as set forth expressly in this Paragraph, the case is dismissed with prejudice upon entry of this Final Order and Judgment.
11. The Court finds that the Named Plaintiffs and each member of the Settlement Classes have conclusively compromised, settled, discharged, dismissed, and released all Released Claims against Defendant and the other Released Parties, as follows:
Named Plaintiffs' Release: As consideration for this Agreement, as of the date of payment of the Incentive Awards, the Named Plaintiffs, including each and every one of their respective agents, representatives, attorneys, heirs, assigns, or any other person acting on their behalf or for their benefit, hereby generally release and discharge Released Parties from any and all claims, demands, rights, causes of action, compensatory and punitive damages, attorneys' fees, costs, debts, or liabilities which they now have, or had at any time prior to and through the date of this release. Settlement Class Release: As consideration for this Agreement, as of the date of payment of the Incentive Awards, the Settlement Class Members, including each and every one of their respective agents, representatives, attorneys, heirs, assigns, or any other person acting on their behalf or for their benefit, hereby release and discharge Released Parties from any and all claims, demands, rights, causes of action, compensatory and punitive damages, attorneys' fees, costs, debts that were asserted in the Fifth Amended Complaint. 12. Accordingly, effective thirty-seven days after the entry of the Final Order and Judgment, the Named Plaintiffs and all members of the Settlement Classes who have not been excluded from the Settlement Class, whether or not they return a Claim Form within the time and
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in the manner provided for, are barred from asserting any Released Claims against Defendants and the other Released Parties, and any such members of the Settlement Classes are deemed to have released any and all Released Claims as against Defendants and the other Released Parties. The settlement and this Final Order and Judgment are binding on, and shall have res judicata and preclusive effect in, any pending and future lawsuits or other proceedings encompassed by the Released Claims maintained by or on behalf of the Named Plaintiffs and all other members of the Settlement Classes.

13. The Court approves the payment of attorneys' fees to Class Counsel in the amount of $18,333,333.00 and costs and expenses to Class Counsel in the amount of $227,374.98. This award shall be distributed to Class Counsel in accordance with the terms of the Settlement Agreement.

14. The Court approves the payment of the Named Plaintiffs' Incentive Awards as follows:

Named Plaintiff Kim Young:

$25,000

Named Plaintiff Ronald Johnson: $25,000

Named Plaintiff William Jones: $25,000

Named Plaintiff Allen Gorman: $25,000

Named Plaintiff Gerrard Lamour: $25,000

Named Plaintiff Lee Mercado:

$25,000

Named Plaintiff Bradley Hytrek: $25,000

Named Plaintiff Carl Gray:

$25,000

Named Plaintiff Matthew Liptak: $25,000

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The Incentive Awards shall be distributed in accordance with the terms of the Settlement Agreement.

15. The Court approves the payment of the Testifying Class Member Incentive Awards as follows:

Class Member Paul Beck:

$10,000

Class Member Bobby Bishop:

$10,000

Class Member Robert Brown:

$10,000

Class Member Robert Consiglio: $10,000

Class Member James Curran:

$10,000

Class Member Michael Higgs:

$10,000

Class Member John Jacobson:

$10,000

Class Member Derrick Jones:

$10,000

Class Member Dennis Maimonis: $10,000

Class Member Darryl Paul:

$10,000

Class Member Osbaldo Santiago: $10,000

Class Member Eric Slapak:

$10,000

Class Member Del Wilson:

$10,000

Class Member Ricky Winfield:

$10,000

16. Additional distributions from the Settlement Fund, including any reversion to the Defendant Cook County, shall be made in accordance with the terms of the Settlement Agreement. In addition, $3,000.00 of the award approved as payable to Class Counsel for costs

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and expenses shall be set aside by the Claims Administrator to fund payments made to potential class members Paul Long, Jorge A. Rodriguez, Jr., and R.L. Brooks, Jr., which payments shall be made in accordance with the terms of the Settlement Agreement to each of the foregoing three individuals who submits a claim form and is determined by the Claims Administrator to be eligible for payment. In the event that a portion of the $3,000.00 is not distributed to the foregoing three individuals, the remainder shall revert back to Class Counsel.
17. The Court hereby bars and enjoins all members of the Settlement Classes who have not been excluded from the Settlement Classes from (i) filing, commencing, prosecuting, intervening in, or participating (as class members or otherwise) in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction based on, relating to, or arising out of the claims and causes of action, or the facts and circumstances relating thereto, in this Action and/or the Released Claims and (ii) organizing members of the Settlement Classes who have not been excluded from the Settlement Classes into a separate class for purposes of pursuing as a purported class action any lawsuit or administrative, regulatory, arbitration, or other proceeding (including by seeking to amend a pending complaint to include class allegations, or seeking class certification in a pending action) based on, relating to, or arising out of the claims and causes of action, or the facts and circumstances relating thereto, in the Action and/or the Released Claims.
18. On March 15, 2011, the parties shall file an agreed list of all potential Settlement Class members who have properly and timely requested exclusion from the Settlement Classes, along with a proposed order regarding the same, which list reflects any exclusions submitted by Robert Lewis Jones, Jason Ferguson, and Erica Speed, who are granted until March 11, 2011 to submit an exclusion.
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Case: 1:06-cv-00552 Document #: 650 Filed: 03/04/11 Page 9 of 9 PageID #:16113 19. In the event this settlement does not become effective in accordance with the
terms of the Settlement Agreement, then the Settlement Agreement, this Final Order and Judgment, and all orders entered into regarding this settlement shall be null and void and vacated, in accordance with the Settlement Agreement. Further, in such case, the Settlement Fund, less notice and settlement administration expenses that have been properly disbursed, or properly incurred but not yet disbursed, shall be returned to Defendants pursuant to the Settlement Agreement.
20. The Court hereby authorizes the Parties, without further approval from the Court, to agree to and adopt such amendments, modification, and expansions of the Settlement Agreement as (a) are consistent in all material respects with this Final Order and Judgment and (b) do not limit the rights of the Settlement Class members under the terms of the Settlement Agreement.
Dated: ------------------
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 Case: 1:06-cv-00552 Document #: 637 Filed: 02/15/11 Page 1 of 44 PageID #:13876

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

KIM YOUNG, RONALD JOHNSON, WILLIAM JONES, ALLEN GORMAN, GERRAD LAMOUR, LEE MERCADO, BRADLEY HYTREK, CARL GRAY, and MATTHEW LIPTAK, on behalf of themselves and a class of others similarly situated,
Plaintiffs,
v.
COUNTY OF COOK and TOM DART, Sheriff of Cook County,
Defendants.

) ) ) ) No: 06 cv 552 ) ) ) JUDGE KENNELLY ) ) JURY TRIAL DEMANDED ) ) ) ) ) )

CLASS COUNSEL’S PETITION FOR ATTORNEYS’ FEES, COSTS, AND CLASS MEMBER INCENTIVE BONUSES

Arthur Loevy Jon Loevy Mike Kanovitz Samantha Liskow Roshna Bala Keen Heather Lewis Donnell LOEVY & LOEVY 312 North May St., Suite 100 Chicago, IL 60607 (312) 243-5900

Case: 1:06-cv-00552 Document #: 637 Filed: 02/15/11 Page 2 of 44 PageID #:13877
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... i
I. Summary Of The Petition ....................................................................................................1
II. Petitioners’ Success In This Litigation Has Achieved A Substantial Settlement Fund, As Well As Important Policy Changes ......................................................................4
III. The Settlement Agreement’s One-Third Contingency Fee Is Appropriate Under The Case Law And Should Be Approved............................................................................5
A. Under The Case Law, The Full Agreed Fee Is Appropriate And Should Be Awarded If It Is Consistent With A Percentage That Would Have Been Negotiated Ex Ante .....................................................................................................................5
B. The Circumstances Surrounding This Litigation Support A Conclusion That Counsel and the Class Would Have Negotiated A One-Third Contingency Fee ..................................................................................................................................6
1. Contingencies In The Amount Of One-Third Of The Common Fund Are Consistent With The Market Rate................................................................6
2. The Absence Of Other Law Firms In A Position To Pursue This Litigation..............................................................................................8
3. Class Counsel’s Capability To Perform The Superior Level Of Legal Work Necessary To Obtain The Tremendous Result ................................10
4. The Ex Ante Risk Of Nonpayment Was Sufficiently Substantial As To Justify The One-Third Contingency.....................................................13
C. Additional Evidence Supporting A One-Third Contingency Fee Here .................16
1. Professor Theodore Eisenberg’s Survey, Analysis, And Opinion.............16
2. The Record-Breaking Result......................................................................17
3. The Policy Reforms Will Provide Additional Non-Pecuniary Benefit To Hundreds Of Thousands Of Citizens .........................................................19
4. The Difficulties And Challenges Class Counsel Had To Overcome To Obtain The Successful Result...............................................................20
5. The Absence Of Any Objections To The Settlement Provision Allowing A One-Third Contingency Fee...................................................................31

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D. Any “Stair Step” Method Of Reducing The Fee Would Be Inappropriate Here...32 E. For Cross-Check Purposes, A One-Third Contingency Fee Would Not
Create An Unjustified “Windfall” .........................................................................34 1. Multipliers Between Two And Five Times Are Ordinarily
Considered Acceptable ..............................................................................35 2. Class Counsel’s Multiplier Of Approximately Three Is Well Within
The Range Of Acceptable ..........................................................................35 IV. Counsel’s Request For Reimbursement Of Costs Is Reasonable And
Should Be Approved..........................................................................................................36 V. The Court Should Approve The Incentive Bonuses For Class Representatives And
Class Members Who Testified At The Liability Trial .......................................................37 CONCLUSION ..............................................................................................................................39

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TABLE OF AUTHORITIES Bell v. Wolfish, 441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Berger v. Xerox Corp. Ret. Income Guarantee, Plan No. 00-584,
2004 WL 287902 (S.D. Ill. Jan. 22, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 38 Boone v. City of Philadelphia, 668 F. Supp. 2d 693 (E.D. Pa. 2009) . . . . . . . . . . . . . . . . . . 15, 19 Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . 9 Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . 18, 20 Farrar v. Hobby, 506 U.S. 103 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 9 Garcia v. City of Chicago, No. 01 C 8945, 2003 WL 22175620 (N.D. Ill. Sept. 19, 2003) . . . . 10 Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Goldsmith v. Tech. Solutions Co., 92 cv 4374, 1995 WL 17009594 (N.D. Ill. Oct. 10, 1995) . . 8 In re Abbott Labs. Sec. Litig., No. 92 cv 3869, 1995 WL 792083 (N.D. Ill. July 3, 1995) . . . . . 35 In re Comdisco Secur. Litig., 150 F.Supp.2d 943 (N.D. Ill. 2001) . . . . . . . . . . . . . . . . . . . . 34, 36 In re Continental Ill. Securities Litig., 962 F.2d 566 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 6, 37 In re Diet Drugs, 582 F.3d 524 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 35 In re General Instrument Securities Litig., 209 F. Supp. 2d 423 (E.D. Pa. 2001) . . . . . . . . . . . . . 7 In re Hanger Orthopedic Group, Inc. Sec. Litig., 418 F.Supp. 2d 164 (E.D.N.Y. 2006) . . . . . . 27 In re Interpublic Sec. Litig., No. Civ. 6527 Class Action,
2004 U.S. Dist. LEXIS (S.D.N.Y. Oct. 26, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 In re Linerboard Antitrust Litig., No. 98 cv 5055, 2004 WL 1221350 (E.D. Pa. June 2, 2004) . . 7 In re Marsh ERISA Litig., 265 F.R.D. 128 (S.D.N.Y. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 37 In re Oxford Health Plans, Inc., Secs. Litig.,
MDL Dkt. No. 1222, 2003 U.S. Dist. LEXIS 26795 (S.D.N.Y. June 12, 2003) . . . . . . . 7 In re Priceline.com, Inc. Secs. Litig., No. 3:00-CV-1884,
2007 WL 2115592 (D. Conn. July 20, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 In re Relafen Antitrust Litig., 231 F.R.D. 52 (D. Mass. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 In re Remeron Direct Purchaser Antitrust Litig., No. 03-0085,
2005 WL 3008808 (D. N.J. Nov. 9, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 In re Rite Aid Corp. Sec. Litig., 362 F.Supp. 2d 587 (E.D. Pa. 2005) . . . . . . . . . . . . . . . . . . . . 35
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Case: 1:06-cv-00552 Document #: 637 Filed: 02/15/11 Page 5 of 44 PageID #:13880
In re Synthroid Marketing Litigation, 325 F.3d 974 (7th Cir. 2003) . . . . . . . . . . . . . . . . . 8, 9, 36 In re Trans Union Corp. Privacy Litig., 629 F.3d 741, 2011 WL 117108 (7th Cir. 2011) . . . 9, 34 In re Xcel Energy, Inc., Securities, Derivative & “ERISA” Litig.,
364 F.Supp. 2d 980 (D. Minn. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 31 Jaffe Pension Plan v. Household Int’l, Inc., No. 02 cv 5893,
2010 WL 5017284 (N.D. Ill. Nov. 22, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Kaplan v. Rand, 192 F.3d 60 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Kirchoff v. Flynn, 786 F.2d 320 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 13, 33 Maley v. Del Global Technologies Corp., 186 F. Supp. 2d 358 (S.D.N.Y. 2002) . . . . . . . . 7, 35 Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . 20, 21 McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 31 Nichols v. SmithKline Beecham Corp., No. 00 cv 6222,
2005 WL 950616 (E.D. Pa. Apr. 22, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Retsky Family Ltd. v. Price Waterhouse LLP, No. 97 cv 7694,
2001 WL 1568856 (N.D. Ill. Dec. 10, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Roberts v. Texaco, Inc., 979 F.Supp. 185 (S.D.N.Y. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Robinson v. City of Harvey, 489 F.3d 864 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . 5 Sutton v. Bernard, 504 F.3d 688 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Synthroid Marketing Litig., 264 F.3d 712 (7th Cir. 2001) . . . . . . . 6, 8, 10, 12, 13, 18, 32, 33, 37 Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . 35 Waters v. International Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) . . . . . . . . . . 7, 27 Will v. General Dynamics Corp., No. 06 cv 698,
2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 34, 38 Young v. County of Cook, No. 06 cv 0552,
2007 WL 1238920 (N.D. Ill. Apr. 25, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
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Case: 1:06-cv-00552 Document #: 637 Filed: 02/15/11 Page 6 of 44 PageID #:13881
Now Comes Class Counsel, Loevy & Loevy, and respectfully requests an Order approving their Petition for attorneys’ fees and costs, as well as incentive bonuses for certain Class members. In support, Petitioners explain as follows. I. Summary Of The Petition
After five years of hard work, Class Counsel obtained a $55 million settlement for their clients. The litigation also brought about reforms in the strip search procedures at the nation’s largest single-site jail facility, meaningful changes that will protect the constitutional rights of hundreds of thousands of citizens in the future.
To achieve that outstanding result, a total of 35 different Class attorneys collectively dedicated more than 15,000 hours of time. All told, Class Counsel created 513 affidavits from class members, took and defended 84 depositions, briefed 47 motions, reviewed over 5,000 pages of discovery documents, and answered almost 21,000 phone calls and letters from the class members seeking an update on the case or asking questions about the case. We also litigated 32 of the defendants’ motions, filing 22 briefs; filed and responded to three pleadings in the appellate court; and represented the Class at four jury trials.
Presently before the Court is Class Counsel’s request for an award of fees and costs. The agreed Settlement Agreement authorizes compensation of one-third of the fund, as well as reimbursement of out of pocket expenses. As set forth in this Petition, an award in that amount is appropriate for a number of reasons, summarized as follows.
Under the applicable case law, the Seventh Circuit directs this Court to determine what percentage the Class would have negotiated ex ante for a contingency. Applying that standard, numerous courts, in this District and elsewhere, have awarded a “market rate” one-third contingency in common funds of similar size for class actions with similar levels of risk. See, e.g., Exhibit A, Mansfield et al. v. Airline Pilots Assoc., 06 cv 6869, slip op. at 8-9, (N.D. Ill. Dec. 14, 2009) (Ashman, J.) (awarding 35% fee for similarly-sized $44 million dollar fund, and finding that a 35% fee award is “consistent with awards in similarly complex cases in this and other jurisdictions, and accurately reflects the market rate for Class Counsel’s services consistent with Seventh Circuit case law...”) (emphasis added).

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A key variable in that determination is the extent of the risk. At one end of the class counsel compensation spectrum is the category of cases where the risks are low. Law firms vigorously compete with one another to represent those classes because the issues of liability, and even damages, are clear. The question in those cases is not so much “if” the defendant is going to pay, or even “how much,” but mainly “when.”
The instant case could not fall any farther from that end of the compensation spectrum. Indeed, the offending practices persisted out in the open for years without anyone undertaking to challenge them. That is at least in part because the prospects for success in mounting such a challenge were so daunting.
First, the largest Class included persons accused of felonies, i.e., people lawfully subject to being strip searched, as long as it was done properly. Their claims required proof of a widespread unconstitutional practice, a sharply-disputed and difficult-to-prove proposition. For the Class of misdemeanants, the case law was uncertain and unwelcoming, and only got worse as the case moved forward. Even in the realm of strip search litigation, this case was a risky outlier because it involved the nation’s largest single-site jail and class members who, unlike in the typical strip search class, had already been arraigned and failed to make bail. Moreover, incarcerated class members are among the least sympathetic of plaintiffs, and the Defendants were public safety governmental officials. From a statistical standpoint, prisoner civil rights cases settle infrequently, fail at trial 90% of the time, and rarely prevail on appeal.
Compounding the risk, the County was not in any frame of mind to settle, at least not without first attempting to knock out the claims at class certification, summary judgment, a liability trial, damages trials, and on appeal. A loss at any one of those stages would have meant defeat for the Class, and a total loss of counsel’s investments of time and resources. Prevailing at each stage required thousands of hours of diligent and creative legal work of the highest caliber, on par with what the city’s leading law firms provide to their highest-paying clients.
The other major reason why no one previously brought this class action, and thus why one-third would be an appropriate ex ante fee, is because so few firms are realistically situated to
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mount this fight. Complex civil rights cases comprise a very specialized federal practice area, requiring mastery of sophisticated constitutional issues and trial practice skills just to have a chance. Indeed, the lead named plaintiff, Kim Young, contacted ten different attorneys without success before Class Counsel agreed to pursue the claims.
The absence of other alternatives was no coincidence. Few, if any, other law firms have the special combination of attributes required to make this case successful, including: (a) substantial class action experience and the resources to manage and administer a quarter-million Class members; (b) capability of successfully litigating complex constitutional issues; (c) top-tier federal trial and appellate practices; (d) political willingness to take on Cook County; (e) capacity to devote the necessary 16,000 total hours and hundreds of thousands of dollars in expenses without repayment for five years; and (f) willingness to accept the very real risk of losing it all.
Class Counsel’s combination of strengths in all of those critical attributes is quite unique. The fact is, our firm and this case were a perfect match. Given the relative absence of other super-qualified firms, coupled with the need for a super-qualified firm if there was to be any chance of winning, the Class undoubtedly would have been willing to pay a heavy premium to secure the services of a firm such as ours in an ex ante face-to-face negotiation, much less a market-rate one-third contingency.
The Petition also discusses other reasons why a one-third contingency is appropriate here, including the Declaration of Professor Theodore Eisenberg, a well-respected authority on class action compensation. Professor Eisenberg opines that a one-third contingency is appropriate and similar to many other awards he has surveyed in comparable cases, another useful data point for the Court’s consideration.
Professor Eisenberg’s analysis also demonstrates the absence of any “scaling effect” (marginally diminishing fee percentages as fund sizes increase) for high-risk civil rights class action awards in the Seventh Circuit. In other words, where the nature of the case is such that additional work increases the fund size, courts recognize that the Class would want its counsel to be incentivized to aim higher and not to quit the fight too soon, i.e., just because a settlement
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offer reached the level where counsel’s compensation percentage drops off. In this case, for example, Class Counsel rejected earlier $20 and then $40 million offers, believing them to be too low to fairly compensate the Class. By continuing the battle through trial and on appeal (and thereby continuing to incur risk as opposed to locking in a fee) Class counsel was able to greatly expand the overall pie. From an ex ante perspective, the Class would have been best served by fully incentivizing that sort of decision-making, especially where, as here, the damages are soft, subjective, and totally unliquidated.
Finally, this Petition concludes by discussing the optional “cross-check” of the lodestar multiplier, as well as the possible applicability vel non of banded “stair step” compensation formulas. In both cases, the one-third contingency passes muster as the appropriate market rate. II. Petitioners’ Success In This Litigation Has Achieved A Substantial Settlement Fund,
As Well As Important Policy Changes The cash portion of the Settlement Fund consists of a $55 million common fund, as well as an assignment of additional claims against the insurers. Tens of thousands of members of the Class will receive the entire cash portion, net of the Claims Administrator’s fees, the incentive bonuses for class members who participated at trial, and Class Counsel’s fee and costs. Assuming the Court approves the incentive bonuses and the one-third contingency fee permitted under the Settlement Agreement, the Class will receive more than 64.3% of the fund, or $35,250,000.00. The Class members’ response to the Settlement Agreement has been favorable. Although the claims administrator has not completed processing all of the claims, our efforts and diligence have achieved an above-average claims rates of approximately 25%. See Exhibit B (Affidavit of Robin Niemic, Claims Administrator) at ¶¶ 21-22. In addition to distributing over $35 million in cash to the Class members, this litigation accomplished significant programmatic changes at the Cook County Jail (the “Jail”). Most fundamentally, the unconstitutional tactics have been discontinued, resulting in very real benefits for untold numbers of future detainees. As a result of this litigation and the case built by Class
4

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Counsel during discovery, the Jail purchased modern scanning equipment, an improvement that satisfies the Jail’s legitimate interests while eliminating the need to continue the abusive blanket strip search policy. Exhibit C (Godinez Dep. at 82:1-16). The Jail’s administrators themselves acknowledge that these changes comprise a “win win” because they have actually improved the Jail’s ability to detect contraband. Id. at 89:18-90:4, 90:16-91:1, 117:16-19, 161:11-162:21. And even where there is reasonable cause for a strip search, the Jail no longer uses group strip searches. Rather, detainees must be searched individually with privacy. Id. at 124:11-23. III. The Settlement Agreement’s One-Third Contingency Fee Is Appropriate Under The
Case Law And Should Be Approved While not dispositive, Class Counsel begins by noting that not one Class Member has filed an objection to the one-third contingency fee authorized in the Settlement Agreement. The Court obviously has an independent duty to examine the fairness of the fee, but the absence of any objections to the fee is a useful starting point, one that distinguishes this settlement from many that do generate fee objections. E.g., In re Diet Drugs, 582 F.3d 524, 542 (3d Cir. 2009) (15 objections to fees); Mansfield et al. v. Airline Pilots Assoc., No. 06 cv 6869 (N.D. Ill. Dec. 14, 2009) (hereinafter “Airline Pilots Assoc.”) (17 objections to fees), attached as Exhibit A. See also Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) (13% of jail conditions class members filed objections to settlement). Lack of objections aside, the law and facts support the full agreed fee for the following reasons. A. Under The Case Law, The Full Agreed Fee Is Appropriate And Should Be
Awarded If It Is Consistent With A Percentage That Would Have Been Negotiated Ex Ante By investing approximately 15,000 hours of high-quality legal work over the course of five years, a total of 35 lawyers for the Class succeeded in creating a common fund benefitting its members. Accordingly, we seek an award of fees under the common fund doctrine, a doctrine “based on the equitable notion that those who have benefitted from litigation should share its costs.” Skelton v. General Motors Corp., 860 F.2d 250, 253 (7th Cir. 1988) (citations omitted).
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When awarding fees from a common fund, “[t]he object . . . is to give the lawyer what he would have gotten in the way of a fee in an arm’s length negotiation, had one been feasible.” In re Continental Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992). Because the Class was unable to pay fees or costs, the relevant fee is the percentage of the recovery that counsel would have negotiated before undertaking the case, given the need to invest labor and risk hundreds of thousands of dollars in out of pocket costs, all with the specter of losing it all. Sutton v. Bernard, 504 F.3d 688, 693 (7th Cir. 2007) (ex ante contingency negotiation must account for risk of nonpayment, the quality and quantity of the work needed to litigate the case, and the likely stakes), citing Synthroid Mktg. Litig., 264 F.3d 712, 721 (7th Cir. 2001) (“Synthroid I”).
B. The Circumstances Surrounding This Litigation Support A Conclusion That Counsel and the Class Would Have Negotiated A One-Third Contingency Fee
There are numerous reasons why a one-third contingency would have been the appropriate negotiated fee in this case. These factors include the relevant market rate, the relative dearth of other law firms in a position to have tackled this litigation, the skill and reputation of Class Counsel, the difficulties in bringing this litigation to a successful conclusion, and the substantial risk of nonpayment. Class Counsel begins with the market rate.
1. Contingencies In The Amount Of One-Third Of The Common Fund Are Consistent With The Market Rate
A standard contingency arrangement for simple tort litigation runs between one-third and forty percent. Gaskill v. Gordon, 160 F.3d 361, 362 (7th Cir. 1998). Civil rights cases tend to be at the higher end of that range; attached as Exhibit D is an affidavit, signed by several local civil rights practitioners, attesting to 40% contingencies as the local market rate, reflecting the risks of loss in civil rights litigation. Cf. Kirchoff v. Flynn, 786 F.2d 320, 323-24 (7th Cir. 1986) (stating that a 40% contingency fee is typical in many practice areas, but that the unlevel playing field confronting civil rights plaintiffs may make a market rate of greater than 40% reasonable).1
1 A 40% contingency fee is not an uncommon arrangement for risky cases in other practice areas as well. See, e.g., In re Solis, 610 F.3d 969 (7th Cir. 2010) (40% contingency for fee collections contract); Kenseth v. C.I.R., 259 F.3d 881 (7th Cir. 2001) (40% contingency for age discrimination); Gerald R. Turner & Assoc., S.C. v. Moriarty, 25 F.3d 1356 (7th Cir. 1994) (40% contingency for medical malpractice); Robert W. Karr & Assoc., Ltd. v. Novoselsky, No. 08 cv 1197, 2008 WL 4865573 (N.D. Ill. July 14, 2008) (40% contingency for attorney malpractice).
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Given this 33%-40% baseline for contingent fee litigation, a great deal of case law supports a one-third fee for common fund settlements. See e.g., Waters v. International Precious Metals Corp., 190 F.3d 1291, 1293 (11th Cir. 1999) (affirming fee award of one-third of $40 million common fund); In re Marsh ERISA Litig., 265 F.R.D. 128, 149 (S.D.N.Y. 2010) (approving attorneys’ fees of one-third of a $35 million settlement); In re Priceline.com, Inc. Sec. Litig., No. 3:00 cv 1884, 2007 WL 2115592, at *6 (D. Conn. July 20, 2007) (awarding 30% of $80 million fund); Nichols v. SmithKline Beecham Corp., No. 00 cv 6222, 2005 WL 950616, at *22-24 (E.D. Pa. Apr. 22, 2005) (approving 30% fee of the $65 million settlement in pharmaceutical antitrust action); In re Remeron Direct Purch. Antitrust Litig., No. 03-0085, 2005 WL 3008808, at *17 (D. N.J. Nov. 9, 2005) (approving fee of one-third of the $75 million common fund); In re Relafen Antitrust Litig., 231 F.R.D. 52, 82 (D. Mass. 2005) (awarding onethird of $67 million common fund); In re Linerboard Antitrust Litig., No. 98 cv 5055, 2004 WL 1221350, at *19 (E.D. Pa. June 2, 2004) (awarding 30% of a $202 million settlement); In re Oxford Health Plans, Inc., Sec. Litig., MDL Dkt. No. 1222, 2003 U.S. Dist. LEXIS 26795, at *13 (S.D.N.Y. June 12, 2003) (awarding 28% of $300 million fund); Gutter v. E.I. Dupont De Nemours & Co., No. 95-2152-CIV-GOLD, slip op. at 7, (S.D. Fla. docketed June 2, 2003) (awarding one-third of $77.5 million common fund) (attached as Exhibit E,); Maley v. Del Global Tech. Corp., 186 F. Supp. 2d 358, 374 (S.D.N.Y. 2002) (approving fees of one-third of a $11.5 million settlement fund); In re General Instrument Sec. Litig., 209 F. Supp. 2d 423, 434 (E.D. Pa. 2001) (awarding one-third of a $48 million fund).
The same has been true in this Circuit, where courts have awarded fees of approximately one-third in common fund cases where the case was sufficiently risky to justify it. E.g., Gaskill, 160 F.3d 361 (7th Cir. 1998) (approving 38% fee for a $20 million dollar common fund in a risky case); Will v. General Dynamics Corp., No. 06 cv 698, 2010 WL 4818174, at *2 (S.D. Ill. Nov. 22, 2010) (awarding one-third of $15 million common fund and finding: “Where the market for legal services in a class action is only for contingency fee agreements, and there is a substantial risk of nonpayment for the attorneys, the normal rate of compensation in the market is
7

Case: 1:06-cv-00552 Document #: 637 Filed: 02/15/11 Page 13 of 44 PageID #:13888
33.33% of the common fund recovered”); Airline Pilots Assoc., No. 06 cv 6869, slip op. at 7 (N.D.Ill. Dec. 14, 2009) (transferred from Kennelly, J., to Ashman, J.) (approving 35% of a $44 million common fund, and finding 35% to be the market rate given that there was a “significant risk” of non-payment); In re Household Int’l Inc., No. 02 cv 7921 (N.D. Ill. Nov. 22, 2004) (awarding 30% of a $46.5 million fund and finding that 30% was “at or below the market rate”). See also Retsky Family Ltd. v. Price Waterhouse LLP, No. 97 cv 7694, 2001 WL 1568856, at *4 (N.D. Ill. Dec. 10, 2001) (“A customary contingency fee would range from 33% to 40% of the amount recovered”); Goldsmith v. Tech. Solutions Co., 92 cv 4374, 1995 WL 17009594, at *8 (N.D. Ill. Oct. 10, 1995) (collecting cases and concluding: “where the percentage method is utilized, courts in this District commonly award attorneys’ fees equal to approximately one-third or more of the recovery”).2
2. The Absence Of Other Law Firms In A Position To Pursue This Litigation
In securities and consumer class actions, it is not uncommon for multiple firms to jostle with one another to be class counsel. The same is true for certain MDL litigation. Such cases often present desirable economic propositions, i.e., a high likelihood of success coupled with big stakes. In those situations, firms literally compete for the cherry cases, and courts can establish the market rate via a bidding process.
For example, in In re Synthroid Marketing Litigation, 325 F.3d 974 (7th Cir. 2003) (“Synthroid II”), the court imposed a fee that would equate to 23% of a $55 million common fund. Id. at 975-76. Unlike the case at bar, Synthroid was an MDL consumer class action for which the economics were so attractive relative to the risk that numerous law firms around the country jumped in to compete to represent the class. Synthroid I, 264 F.3d at 714. Moreover, the predicate facts necessary for liability had already been established by a “whistleblower” account
2 Some trial courts in this Circuit have reduced the percentage below one-third in so-called “mega fund” cases where the stakes reach into the hundreds of millions. See, e.g., Berger v. Xerox Corp. Ret. Income Guarantee Plan, No. 00-584, 2004 WL 287902, at *2 (S.D. Ill. Jan. 22, 2004) (fee award of 29% of $239 million common fund), and Berger, No. 00-584 (S.D. Ill. Filed Jan. 20, 2004) (Memorandum in Support of Final Approval), attached as Group Exhibit F.
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published in the Journal of the American Medical Association. Id. at 713-14 (“After the article’s
publication, lawyers across the country began filing class action suits.”). Thus, liability was
never in doubt, and damages were certain to be sizable from the outset. Moreover, the defense
settlement offer came so early in the litigation that the court concluded that sufficient discovery
had not yet been conducted to determine whether the defendants’ offer was too low. Id. at 714-
15; see also In re Trans Union Corp. Privacy Litig., 629 F.3d 741, 2011 WL 117108, at *5 (7th Cir. 2011) (cases filed after the FTC had already found that Trans Union violated federal law).3
Not so here. There was no bidding war for the privilege of representing this prisoner
class. Quite the opposite, named Plaintiff Kim Young searched out, but was rejected by, ten
different law firms before she found Loevy & Loevy (“L&L”). Exhibit G (Young Aff. at ¶ 3).
From its vantage point, this Court is aware of how few civil rights firms in this District
were truly in a position to devote so many thousands of attorney hours and several hundred
thousand dollars in cash/credit (in an era when credit is tight), all in the hopes of being paid five
or more years down the road – assuming there was any payment at all. The Class also required a
firm capable of skillfully handling the staffing and administrative burden associated with almost
250,000 class members, including the ability to respond to thousands of letters and phone calls.
To be sure, such firms exist, but precious few concentrate in civil rights, a highly-
specialized field. Summary judgment and then Seventh Circuit review loomed as serious barriers
to recovery, and, with the County unwilling to settle prior to testing these waters, the experience and ability needed to address complex constitutional arguments was critical.4
3 The court also relied on an actual retainer that one of the attorneys had signed with an insurance third party payer to represent it in the case for 22% after liability had essentially become clear. In Re Synthroid Mktg. Litig. (“Synthroid II”), 325 F.3d at 976, 978 (explaining that the 22% rate was agreed to “after a good deal of the risk had been dissipated” and that the insurers still “had to offer 22% to sign up lawyers on a contingent fee”).
4 Class Counsel, for example, had to craft legal positions against a legal backdrop that began shifting unfavorably as our case progressed, when various appellate courts began dismissing class actions for detainees strip searched upon entry to general population. See Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d Cir. 2010) (dismissing claim of putative class strip searched on entry to general population); Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (dismissing claim for class entering general population); Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (dismissing claim for class entering general population and remanding claims of those strip searched before the need to enter general population was determined).
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The reality is, if Class Counsel had not taken the case, it likely never would have been brought at all, much less won. After all, the disputed practices had been ongoing out in the open for years, affecting hundreds of thousands of men, all without any prior challenge by any other law firms. This factor weighs strongly in favor of the conclusion that ex ante negotiation would have supported a contingency of at least one-third, if not more.
3. Class Counsel’s Capability To Perform The Superior Level Of Legal Work Necessary To Obtain The Tremendous Result
All of the foregoing speaks to the relative absence of other firms in any realistic position to prosecute this case properly. But even assuming arguendo there had been an availability of other firms competing to represent the Class, law firms are not fungible. Petitioners respectfully submit that the Class enjoyed the advantage of having been represented by one of the premier civil rights law firms in the Midwest, a factor which warrants compensation at the highest end of the spectrum. See Synthroid I, 264 F.3d at 720 (“Quality varies among lawyers, and awards net of fees could rise with the level of fees if a higher payment attracts the best counsel. We never see private clients auctioning off their legal work to the lowest bidder.”) (emphasis added).
As the Court has had the opportunity to observe during its tenure on the bench, L&L has grown to 21 lawyers, many with the type of stellar resumes which would qualify them to work for the nation’s largest and most prestigious law firms on behalf of the highest-paying clients. See Group Exhibit H (affidavits stating qualifications). Instead, our firm’s lawyers have devoted their careers to challenging civil rights cases, such as this one. As a result, the Class benefitted from a level of service that can only be characterized as top of the line. Cf. Garcia v. Chicago, No. 01 C 8945, 2003 WL 22175620, at *7 (N.D. Ill. Sept. 19, 2003) (Holderman, J.) (“In the case at hand, were it not for the skill and determination of [Loevy & Loevy], the violations of Garcia’s civil rights by the City proven by the evidence at trial would not have been established.”).
In further support of Class Counsel’s skills, reputation, and accomplishments, we offer affidavits submitted by the distinguished figures in the Chicago civil rights community, including, inter alia, Locke Bowman of the MacArthur Justice Center; Harvey Grossman of the American Civil Liberties Union; Craig Futterman of the Civil Rights Police Accountability
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Project at the University of Chicago; Flint Taylor of the People’s Law Office; Andrea Lyon of DePaul Law School; and Judson Miner of the Miner Barnhill firm. See Group Exhibit I. See also id., Affidavit of Robert S. Grabemann (L&L opposing counsel in recent civil rights trial). We are quite proud of their opinions, all of which place L&L in the highest tier of civil rights firms, and therefore worthy of the highest compensation. See id.5
Applying the Seventh Circuit standard of an ex ante negotiation, the Class would have been hard pressed to find many firms as well qualified to provide the level of service necessary to win, much less achieve the outstanding result obtained here. Because the supply is limited, the market power to negotiate something less than a one-third (or even greater) contingency is simply not there.
There is an additional factor distinguishing Class Counsel from the rest of the prospective pack. Actual trial practice is extremely rare in the class action world. While there are undoubtedly other class action firms with excellent trial attorneys, there are likely few that take on cases with an eye towards trying them rather than settling pretrial. There are fewer still that have the level of federal civil trial experience (and record of success) that L&L has to offer. This attribute was critical here given the need to obtain the “policy and practice”jury verdict and the high verdicts at the damage trials, without which the settlement, if it happened at all, would not have been anywhere near $55 million.
Even within the subset of class action firms with the capability of trying cases, the market thins further because, whatever the number of remaining firms, it is fair to say that virtually none have substantial experience in civil rights litigation, to say nothing of the level of expertise in this area comparable to L&L. Given L&L’s history of litigating and trying Monell policy and practice claims with uncommon frequency, see Exhibit J, Kanovitz Decl. ¶ 50, our firm was uniquely suited to build a case for trial. Granted, many of these other cases have been, for the
5 In addition to confirming our firm’s track record for aggressively and successfully litigating on behalf of our clients, these affidavits also corroborate our law firm’s decision to devote thousands and thousands of hours to important civil rights endeavors that are either purely pro bono, or else far more about civil rights principles than they are about economic remuneration.
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most part, “smaller” individual cases, but we have litigated each with the same thoroughness and vigor with which “big firms” treat the commercial interests of their highest-paying clients.6
Summarizing, L&L’s unique set of skills, built over more than a decade of trying civil rights cases, proved immensely valuable to the Class. The fact is, some law firms are more expensive than others. Some corporate law firms have earned the right to charge clients significantly higher rates, and some patent law firms command higher contingencies. Civil rights firms are no different, particularly where, as here, the Class required the services of a premium firm, without which it would have been less successful or not successful at all. See discussion, infra, at 36 fn. 21 (describing far smaller settlements in comparable class actions brought by other local attorneys). Class Counsel’s services provided very good value to the Class at the onethird contingency, and Counsel should capture the full benefit of that service. See Synthroid I, 274 F.3d at 720 (awards “could rise with the level of fees if a higher payment attracts the best counsel”).7
6 Finally, the settlement negotiation itself required experience and skill, including sophisticated and creative analysis of insurance issues. To ensure the Class had every advantage, Class Counsel hired insurance counsel from the Howrey law firm to advise and assist. On their own dime, Class Counsel paid these insurance lawyers almost $50,000 at an hourly rate of $605/hour (for an attorney with the same year of law school graduation as lead counsel, Mike Kanovitz). See Exhibit K (Howrey invoices).
7 Assuming hypothetically that the Class could have sought out less qualified attorneys who might have accepted a 30% or even a 25% fee, the Class was nonetheless better served by paying L&L a full third because the resulting overall expansion of the pie to $55 million completely dwarfs any potential savings for the Class associated with a reduced rate. This was simply not the type of class action where the pot was fairly fixed and the most rational choice would be to select the cheapest among competing, equally-qualified firms. See fn. 20, infra, discussing far smaller Bullock and Jackson settlements.
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4. The Ex Ante Risk Of Nonpayment Was Sufficiently Substantial As To Justify The One-Third Contingency
As our Court of Appeals has made clear, “[t]he greater the risk of loss, the greater the incentive compensation required.” Synthroid I, 264 F.3d at 719.8 The Seventh Circuit has,
quite properly, singled out civil rights litigation as being amongst the most risky propositions for
contingency fee representation. Kirchoff, 786 F.2d at 323 (while “40% is the customary fee in
tort litigation,” that is the fee for the normal tort litigation and “the risks plaintiffs face in §1983
litigation are greater” than the norm). Unlike regular tort litigation, Section 1983 cases face legal
and practical barriers resulting in more unsuccessful plaintiffs, as the Seventh Circuit
summarized:
A §1983 case is not like FELA litigation, in which all but a few defenses have been stripped away. It is not even like ordinary tort litigation. . . . [T]he plaintiff must show more in a §1983 case than in a case under the common law of torts. Negligence is not itself actionable. The plaintiff must show intentional wrongdoing or at least recklessness in most §1983 suits, and every “constitutional tort” will have one or more elements an ordinary negligence suit. The plaintiff also must overcome any immunity from suit the defendants may possess. A plaintiff suing the police may encounter juries sympathetic to the defendants -more sympathetic, anyway, than juries are apt to be when the defendant is a deep-pocket corporation in a products liability or FELA suit. When the plaintiff wins on the merits, the jury may treat the defendant as having shallow pockets. . . . Litigants under §1983 therefore have a harder time on the merits, and recover less when they win, than plaintiffs in much other tort litigation.
Id. at 323-24.
Empirical evidence bears out these observations. As is discussed in the attached
Declaration of Professor Theodore Eisenberg, civil rights cases succeed at far lower rates than
other types of plaintiff’s litigation. See Exhibit L (Eisenberg Aff. ¶¶ 49-52). Professor Eisenberg
analyzed the data from federal court case outcomes made publicly available by the
Administrative Office (“AO”) of the United States Courts covering fiscal years 1970 through
8 The converse is also true, and courts have ordered fees of less than one-third in lower risk cases. But, to be clear, they did so because the recovery was more certain at the outset, and thus the market would have dictated less of a contingency fee to compensate for the lower risk of loss. The relative lack of risk associated with certain brands of class actions is the main driver of fee awards lower than one-third.
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2008, which include the outcomes of literally millions of federal cases and over 100,000 trials. Id. ¶¶ 45-48.9
Not surprisingly, government actors enjoy a significant advantage in litigation, a phenomenon confirmed by empirical research showing a success rate 2.5 times higher than that of businesses. Id. ¶ 55. As Professor Eisenberg’s charts illustrate, see id. ¶ 49 (Fig. 1), the trial success rates of incarcerated plaintiffs in civil rights cases hover around 10%, and never exceed 20%. Id. ¶ 49. This contrasts sharply with noncivil rights cases (better than 50%) and even with nonprisoner civil rights cases, in which plaintiffs succeed at trial around 30% of the time.
Moreover, these low trial success rates are not a function of high rates of pretrial success. Civil rights cases are also far less likely than the norm to settle pretrial, and cases involving prisoners settle at the lowest rates of all. Id. ¶ 51 (“The combination of the lowest settlement rates of any major case category and the lowest trial win rates of any case category documents the extreme trial court level risk to counsel of bringing cases like this.”).
Risks associated with civil rights cases persist on appeal, with a reversal rate for plaintiff victories at about 50%, compared to about 14% when Defendants win. Id. ¶ 53 (“In short, counsel in civil rights cases, who survive high pretrial dismissal rates, as evidenced by low settlement rates shown in Figure 2, who survive low trial success rates, as shown in Figure 1, still must run the gauntlet of appellate reversal rates that show the highest gap between plaintiff and defendant appellate success of any case categories.”). Professor Eisenberg characterizes this as “transcendent, systemic risk,” exceeding any other category of litigation. Id. ¶ 54.
Empirical statistics aside, the notion that Cook County would have been willing, or even politically able, to pay $55 million to a class of Jail detainees was not an outcome that anyone would have called “likely” from an ex ante perspective. To obtain that result, Class Counsel had
9 Helpfully, there is a statistical category labeled “Prisoner civil rights, prison conditions.” According to Professor Eisenberg, the AO started using another code in 1998 to separate prison condition cases from other prisoner civil rights cases. AO Code 440, which is described as “Other civil rights” cases, is a reasonable proxy for §1983 cases. Id. ¶ 47, citing Schwab, S., Eisenberg, T., Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 Cornell L. Rev. at 725 (table I).
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to confront potentially dispositive pitfalls in terms of class certification, summary judgment, trial, and appeal. Each of those wins was vital to the Class’s ability to obtain its sizeable settlement, and failure at any of these stages would have doomed or substantially reduced the recovery. Thus, in contrast to class actions where law firms compete to represent the class, the risk here was substantial, and, as demonstrated by cases such as Gaskill, Airline Pilots Assoc., In re Household Int’l, and Will, the market for riskier cases dictates substantially higher contingency fees, either at or just slightly above/below one-third.10
In closing on this point, Petitioners wish to emphasize that when one speaks of “risk” in this context, the potential economic consequences are not merely abstract, particularly for a small or even mid-sized firm. Huge amounts of attorney time and out-of-pocket capital must be spent up front on behalf of the clients. All of this money and billable time can vaporize in an instant. Over the past decade, Class Counsels’ firm has invested millions of dollars in civil rights cases for attorney time and expenses that have gone uncompensated because they failed to prevail.11
To be clear, Class Counsel is not complaining. That is the nature of the game. These types of cases are very difficult to win. Counsel understand that risk going in, and knowingly assume it. But on the other side of the equation, when the plaintiffs do prevail for their clients – and, as here, where they prevail big – then full compensation commensurate with the scope of the accomplishment is appropriate. This is particular so given the economics of the practice, and the firm’s expense in compensating more than twenty highly-qualified attorneys, to say nothing of the multi-million dollar annual overhead associated with running a firm of that size.
10 This case was actually riskier than other strip search class actions in the 30% common fund range, which were more attractive because they involved detainees that had not yet been arraigned or who had been ordered released. Boone v. City of Philadelphia, 668 F.Supp. 2d 693 (E.D. Pa. 2009); Calvin v. Sheriff of Will County, No. 03 cv 3086 (N.D. Ill. entered Nov. 27, 2006) (attached as Exhibit M); Gallagher v. County of San Mateo, No. 04-0448 (N.D. Cal. Nov. 29, 2007) (attached as Exhibit N); Connor et al. v. Plymouth County, No. 00-10835-RBC (D. Mass. entered Mar. 11, 2004) (attached as Exhibit O). And, unlike almost any other class action in any category, this one had to proceed through trial and appeal.
11 As attorney Jon Loevy’s affidavit attests (Group Exhibit H) it is not an uncommon occurrence for the firm to lose a substantial investment in a case when the plaintiff fails to prevail for one reason or another. Id. ¶ 29.
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C. Additional Evidence Supporting A One-Third Contingency Fee
In addition to the foregoing ex ante analysis, other factors also support the one-third
contingency set forth in the Settlement Agreement. They are discussed below.
1. Professor Theodore Eisenberg’s Survey, Analysis, And Opinion
Class Counsel retained the aforementioned Professor Theodore Eisenberg to provide an
opinion on the reasonableness of the fee sought within the context of comparable civil rights
class actions. Exhibit L, Eisenberg Declaration. While Class Counsel acknowledges the
limitations of relying on this sort of evidence, Professor Eisenberg’s analysis and opinion
constitutes additional data for the Court’s consideration.
Professor Eisenberg is a Professor of Law at the Cornell Law School, and an Adjunct
Professor of Statistical Sciences at Cornell University. Id. ¶ 1. He regularly teaches at a Ph.D.
program on Institutions, Economics, and Law, and has previously taught at UCLA Law School,
Harvard Law School, Stanford Law School, and NYU School of Law. Id. ¶ 1.
It would be difficult to imagine anyone more experienced with the quantitative analysis of
common fund attorney fee awards than Professor Eisenberg. See id. ¶¶ 3-10. He has researched
and published widely on the subject of attorneys’ fees, and his empirical studies, including those
regarding attorney fees and class actions, span more than two decades.12 His articles concerning
12 See, e.g., Attorney Fees and Expenses in Class Action Settlements:1993-2008, 7 J. Empirical Legal Stud. 248 (2010) (with G. Miller); A New Look at Judicial Impact: Attorneys’ Fees in Securities Class Actions After Goldberger v. Integrated Resources, Inc., 29 Wash. U. J. Law & Policy 5 (2009) (with M. Perino); Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA L.Rev. 1303 (2006); Attorney Fees in Class Action Settlements: An Empirical Study, 1 J. Empirical Legal Stud. 27 (2004) (with G. Miller); Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 Cornell L. Rev. 719 (1988); The Reality of Constitutional Tort Litigation, in Civil Rights & Attorney Fees Annual Handbook 3 (Lobel & Wolvovitz eds. 1987) (preliminary version of same article appearing in 72 Cornell L.Rev. 641 (1987); What Is the Settlement Rate and Why Should We Care?, 6 J.Empirical Legal Stud. 111 (2009) (with C. Lanvers); Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts (with C. Lanvers), in Empirical Studies of Judicial Systems 2008 (K.C. Huang ed. 2009); Appeal Rates and Outcomes in Tried and Non-Tried Cases, 1 J. Empirical Legal Stud. 659 (2004); The Government as Litigant: Further Tests of the Case Selection Model, 5 Am. L. & Econ. Rev. 94 (2003) (with H. Farber); Litigation Realities, 88 Cornell L. Rev. 119 (2002) (with K. Clermont); Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 Illinois L. Rev. 947 (with K. Clermont); The Relationship Between Plaintiff Success Rates Before Trial and At Trial, 154, Part 1, Journal of the Royal Statistical Society, Series A 111 (1991).
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attorney fee awards have been cited in 29 judicial opinions, including by the Seventh Circuit. Id. ¶¶ 9-10. The Supreme Court, too, has cited and relied on empirical studies he authored or coauthored on various topics, including the eight Supreme Court opinions listed in his affidavit. His empirical studies have been the subject of stories in major media, including the New York Times, the Wall Street Journal, the Atlantic Monthly, among others. He has also testified about law-related empirical matters before federal and state legislatures.
Professor Eisenberg recently presented his empirical analysis of attorney fees to federal MDL judges at the 42nd Transferee Judges’ Conference, held in West Palm Beach, Florida, in October of 2009. He is the founder and editor of the Journal of Empirical Legal Studies, which is the official journal of the Society for Empirical Legal Studies. He also served on the editorial board of the American Law and Economics Review, and as an academic adviser to the National Center for State Courts. Professor Eisenberg has substantial experience in the study of civil rights and discrimination litigation. He is the author of Civil Rights Legislation (Lexis Nexis 5th ed. 2004), a casebook that includes hundreds of pages on Section 1983 civil rights litigation.
As set forth at length in his Declaration, Professor Eisenberg opines that a one-third contingency is appropriate here for numerous reasons. First, a one-third contingency is consistent with the market rate for similar awards in civil rights cases and class actions in the same risk category. Id. ¶¶ 41-56. Moreover, as Professor Eisenberg, the fact that the Young Plaintiffs had been arraigned further increases the risk premium, as did the fact that most Class plaintiffs were not challenging the right of the jail to strip search them, but only the manner in which it was done. Id. ¶ 59-60, 84. There is also the matter of the jury trials (which occur in less than 1% of the cases Professor Eisenberg studied, id. ¶ 82) and the interlocutory appeal, which in Professor Eisenberg’s opinion are sufficiently unusual and risky to warrant the highest end of the comparable awards. Id. This was also the highest strip search settlement that Professor Eisenberg has been able to locate, a result he describes as “historically high.” Id. ¶ 85.
In sum, Professor Eisenberg’s opinion provides additional support for the one-third contingency sought here.
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2. The Record-Breaking Result
As the Supreme Court has made clear, “the most critical factor” in determining reasonableness of the fee award “is the degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992). By any measure, the outstanding degree of success obtained here is beyond debate. This is no “coupon” settlement. Class Counsel broke the cash record for strip search settlements. The amount may well merit inclusion on the list of the highest (collectible) civil rights awards ever. A huge number of Class members – in the tens of thousands – will see meaningful checks to compensate them for the injury they suffered.
Class Counsel should not be “penalized” with a lower percentage merely because we achieved such outstanding results for the clients. In that regard, Professor Eisenberg searched for the existence of a possible “scaling effect” in Seventh Circuit common fund cases, i.e., he reviewed the awards to determine if percentages declined with the size of the recovery. Using regression analysis, he determined that there is almost no scaling effect present in the Seventh Circuit for the category of high risk cases. Id. ¶ 88. That result indicates that courts treat higherrisk cases differently, recognizing that the market, which may sometimes gravitate toward an ex ante “banded”-based negotiation in some types of commercial cases with fixed damages, is not universally applicable. Rather, as the Seventh Circuit noted, such arrangements make economic sense mainly when the recovery will not “increase in proportion to the number of hours devoted to the case.” Synthroid I, 264 F.3d at 721. This basic lack of scaling also can be seen in the fee awards in other strip search class actions, regardless of the size of the fund. See Exhibit L, Eisenberg Aff. ¶ 66.13
13 These other class actions were also arguably less risky than this one. Most involved blanket strip searches of pre-arraignment detainees not entering general population, or detainees whom the court had already ordered freed, and so those cases did not present the extra proof issues and risk of appellate reversal that this case did. Moreover, none of them appears to have proceeded past summary judgment. See Cazenave v. Foti, No. 00 cv 1246 (E.D. La. July 17, 2008) (awarding 35% in case that settled after summary judgment motions were filed for pre-arraignment detainees) (Order and Reasons attached as Exhibit P); Gallagher, No. 04-0448 (N.D. Cal. Oct. 29, 2004) (awarding 31.6% in case involving female pre-arraignment detainees settled after class certification) (Order of Judgment and Dismissal and Application for Attorneys’ Fees and Costs, attached as Group Exhibit N); Bynum v. District of Columbia, 412 F. Supp. 2d 73, 81 (D.D.C. 2006) (awarding 33.3% of pre-trial settlement where class involved over-
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As discussed, the history of this litigation demonstrates how the amount of the recovery in high risk cases does go up with increased marginal work. Class Counsel almost tripled the Classes’ recovery by pushing the case towards trial, and beyond.
3. The Policy Reforms Will Provide Additional Non-Pecuniary Benefit To Hundreds Of Thousands Of Citizens
As substantial as the financial component of this fund may be, the benefits obtained by Class Counsel cannot be measured in dollars alone. This litigation, including the Court’s ruling on summary judgment, also brought about meaningful and needed reforms at the country’s largest single-site Jail. The Jail now uses scanning technology instead of blanket strip searches. See Exhibit C, Godinez Dep. at 162:22-163:3. A detainee may be strip-searched only if there is particularized reasonable suspicion that he or she is harboring contraband. Id. at 104:4-105:9, 111:20-21, 142:20-143:3, 146:9-16.
As a result of these changes, hundreds of thousands of people will be spared abusive and often barbaric strip procedures that were inflicted on the class members – a policy and practice which has been discontinued in favor of a far more humane solution, all without sacrificing anything in terms of the Jail’s ability to detect contraband, which has actually been improved. Id. at 89:18-90:4, 90:16-91:1, 117:16-19, 161:11-162:21.
Under the law, this nonmonetary benefit further supports Counsel’s fee petition. See Robinson v. City of Harvey, 489 F.3d 864, 872 (7th Cir. 2007) (affirming fee award in part on nonmonetary benefit of successful Monell claim, described as a “victory that serves the public interest by exposing to light disturbing police malfeasance and grave municipal institutional
detention and strip searches of persons after a court had ordered them to be released); Calvin, 03 cv 3086 (N.D. Ill. Nov. 27, 2006) (awarding one-third to 40 % where claims involved prearraignment arrestees and persons whom the court had already ordered to be released; case settled after summary judgment) (Order Granting Final Approval of Class Action Settlement attached as Exhibit M); Boone, 668 F. Supp. 2d 693 (awarding 30% in a case that settled before class certification was decided; class definition, which includes people arrested on bench warrants, appears to contemplate persons who had not been arraigned notwithstanding that the opinion uses the both “pretrial detainees” and “arrestees” to describe the class); Connor, No. 00-10835-RBC (D. Mass. Mar. 11, 2004) (awarding 31% in case that involved claims by female pre-arraignment detainees as well as those held on default bonds and in protective custody that was settled after class certification) (Final Approval Order and Complaint attached as Exhibit O).
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failures, and one that will presumably help to deter future constitutional violations by the City’s officers”). See also Chicago Acorn v. City of Chicago, No. 97 cv 6391, 1999 WL 1256260, at *9 (N.D. Ill. Dec. 21, 1999) (plaintiffs’ counsel’s achievement in obtaining content-neutral policy for admission to city council meetings served an important public purpose, and thus supported fee request); Bynum, 412 F. Supp. 2d at 85 (“The policy achievements obtained through this litigation set it apart from many class fund cases, which provide only monetary relief.”).
In some class actions, courts place a valuation on the programmatic reforms as part of the total consideration to the class. We have not requested that sort of accounting here, urging instead that the Court consider the nonmonetary benefit as further support for the reasonableness of the one-third contingency authorized in the Settlement Agreement.14
4. The Difficulties And Challenges Class Counsel Had To Overcome To Obtain The Successful Result
In considering the request for compensation, Class Counsel urges the Court to keep in mind just how many obstacles stood in the way of victory for the Class. Putting aside the benefit of hindsight, a list of some of the legal and factual issues we had to prepare to confront is attached as Exhibit Q. Other challenges are discussed in the Declaration of lead counsel Michael Kanovitz (“Kanovitz Decl.”) (Exhibit J at ¶ 41), and we review some of them as follows.
Strategic Obstacles Unlike most other strip search defendants, the Jail did not accept detainees until after they had been arraigned by a judge and ordered into the custody of the Sheriff. The distinction matters, because after arraignment, it is necessary for the detainee to be housed pending trial and, thus, to be admitted into the inner confines of the facility (where different safety challenges are presented), as opposed to awaiting arraignment in holding cells. Compare Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (prohibiting blanket strip searches of unarraigned women in a municipal lock-up who were about to make bond).
14 Even though these new procedures were implemented in response to this litigation, as the Court may recall, the Sheriff refused to memorialize the reforms into the Settlement Agreement. Class Counsel was unwilling to allow impasse on this point to derail the settlement, as the jury’s verdicts at the liability and damages trials should be sufficient to ensure future compliance.
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Moreover, even under the most favorable expression of the case law for those charged with misdemeanors, blanket strip searches are still permissible so long as the facility demonstrates a history of contraband smuggling by class members. Mary Beth G., 723 F.2d at 1272-73. Here, as Defendants were always quick to point out, the Jail was notorious for problems with dangerous weapons and contraband.15
As for the Class’ argument about strip search methodology, this was by no means a guaranteed winner. The case of Bell v. Wolfish, 441 U.S. 520 (1979) had assumed, without deciding, that the Fourth Amendment would apply and, thus, require the methodology to be reasonable. But what was “reasonable” under a wide array of circumstances remained open to interpretation. Class counsel found the Jail’s practices objectionable, but the Jail definitely had a story to tell in terms of being the nation’s largest jail with hundreds of detainees to process in just a few hours each day. See Turner v. Safley, 482 U.S. 78, 89 (1987) (courts should not secondguess jail administrators for failing to choose the least burdensome method for a strip search).
Moreover, Class I’s claim concerning the strip search methodology turned, in part, on abuses that were relatively ad hoc: terrorizing detainees, using violence and profanity, bodily fluids spilling during the search. Those sorts of conditions were likely unconstitutional, but establishing that they were universal, so as to justify class treatment, was difficult and risky. Plaintiffs argued, and the Court agreed that any differences in the practices were not likely to predominate, Young v. County of Cook, No. 06 cv 0552, 2007 WL 1238920, at *7 (N.D. Ill. Apr. 25, 2007), but that was no foregone conclusion.16
15 E.g., Rudolph Bush, Inmate Slain in Knife Fight at Cook County Jail, 3 Other Prisoners Sent to Hospitals, Chicago Trib., Mar. 24, 2002, at 3 (reporting inmate fight with shanks); Jeff Cohen, 7 Inmates Injured During Brawl, Jail Fight Leaves 3 Hospitalized in Serious Condition, Chi. Trib., Oct. 28, 2003, at 3 (same); Patrick Rucker and Jo Napolitano, 21 Hurt in Gang Fight at Cook County Jail, 6 Inmates Sent to Area Hospitals, Chicago Trib., Oct. 17, 2004, at 1 (same).
16 The ruling was also interlocutory, and subject to being revisited as the record unfolded. Accordingly, building the case in discovery and trying it before a jury required special care so as not to permit the Fourteenth Amendment claims to devolve into disparate and varying experiences. The risk of unwinding the Court’s certification decision on this claim, and thus of losing some of the most powerful evidence of the unreasonable practices, was omnipresent.
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Early Proceedings Following the Court’s denial of Defendants’ motions to dismiss, Dckt. Nos. 37, 39, 56, Class Counsel geared up to take discovery required for class certification under Rule 23(b)(3). This involved document discovery, as well as depositions of policymakers, various jail guards and supervisors, and the named Plaintiffs themselves. See Exhibit J, Kanovitz Decl. at ¶ 39. Class Counsel proceeded to gather class members’ accounts of cruelty by the guards. This was a fact-intensive endeavor, and there was no guarantee going into discovery that Class Counsel was going to gather enough evidence to convince a jury to disbelieve the contrary accounts of jail guards, high-ranking administrators, and even jail physicians. Formal discovery was comprehensive, to say the least. We served 23 separate sets of requests for written discovery, took or defended 84 depositions, and reviewed more than 5,000 pages of documents produced in discovery. This included, for example, intensive scrutiny of thousands of pages of “contraband reports” produced and relied upon by the Jail, and researching court records of the persons identified to determine the nature of their charges and whether they belonged to Class II. We had to fight for much of the discovery we needed, filing and litigating seven discovery motions and responding to multiple others seeking to prevent discovery. The difficulty of obtaining class certification was compounded in all sorts of ways. For example, Defendants claimed repeatedly, and incorrectly, that the Jail’s database was so antiquated that they could not produce to us a list of persons admitted during the class period. See Young v. County of Cook, 2007 WL 1238920, *3 (N.D.Ill. April 25, 2007) (“Plaintiffs sought database discovery from the [Sheriff’s Department] to determine the size of this proposed class. The Department claimed that it could not extract the information from its computers . . .”); Exhibit J, Kanovitz Decl. ¶ 39. This prevented Plaintiffs from adducing witness evidence from the class members with which to prove the commonality of the widespread abuses. It also hampered Plaintiffs’ ability to establish numerosity for the misdemeanor class. Defendants were claiming that persons charged with non-drug/non-weapons misdemeanors rarely entered the Jail due to the I-bond system, and Plaintiffs had no database with which to disprove it. Accordingly,
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Class Counsel had to monitor the publicly admissible records of admissions to the Jail for a period of time and then look up the criminal file of each new detainee to locate those who were charged with Class II charges so as to prove that a misdemeanor class actually existed.17
Class Certification Following Plaintiffs’ successful motion for certification, Defendants petitioned the Seventh Circuit for leave to appeal under Rule 23(f). The relief sought by the Defendants would have ended the case. Class Counsel approached the appeal with the seriousness that it deserved, and devoted considerable resources to (successfully) protecting the Class’ interests. Once the Classes were certified, Class Counsel direct-mailed notice (at our expense) to over 180,422 Class Members. Unsurprisingly, many class members took a keen interest, calling and writing with questions. We received over 2,000 phone calls and almost 1,800 letters between the time when we sent notice and when the case went to trial. We were diligent about responding to each of these contacts, and we set up protocols so that class members with questions could speak to an attorney, making sure that written questions appropriate for an attorney were answered by an attorney. Exhibit R, Declaration of Roshna Bala Keen (“Keen Decl.”) at ¶¶ 4-7. News of the case spread as a result of media coverage of the Court’s summary judgment decision and of the liability trial. Between the liability trial and the time when we sent notice of the proposed settlement, counsel received another 1,600 phone calls and another almost 7,000 letters, most requesting an update on the case and asking for an explanation of what the case developments meant. Again, we responded to each and every communication, providing the class members with access to an attorney whenever requested. Exhibit R, Keen Decl. ¶ 8. Additionally, since sending out the notice of settlement, we have responded to over 3,200 more phone calls and almost 1,800 letters, explaining the settlement. Id. ¶ 9.
17 During discovery, Defendants also inundated Plaintiffs with irrelevant but voluminous documents. One example was an exhibit of 400 “contraband reports” that were apropos of nothing at issue at the certification stage, but which still required laborious analysis and tabulation so that Plaintiffs could respond to Defendants’ characterizations of what they showed. Another was Defendants’ reliance on documents and consent decrees in Duran and the Lewis v. O’Grady case which required Plaintiffs to study those records and dockets as well.
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On the investigation side, we undertook a massive project to gather over 500 declarations from randomly selected class members representing a cross section of the class period. We interviewed each declarant personally to produce the declaration. The difficulty in the logistics of the process alone was considerable. Also, given the state of the Jail’s charging data on the class members, we conducted a random sample of 2,000 class members and looked up every single file on them. We used this data to estimate the rate of Class II charges and also to analyze issues of length of stay for misdemeanor detainees with the assistance of database experts. We also surveyed procedures of other police departments and facilities and conducted a great deal of internet research to marshal evidence for the case.
Summary Judgment From the outset of the case, Class Counsel’s assessment, based on experience, was that we needed to prevail on summary judgment for Class II because those claims were not particularly viable if tried to a jury. Because the Jail’s history of contraband problems was legally relevant to the jury’s consideration of the reasonableness of blanket strip searches, if we left a jury question open then the Jail was going to be able to put on a host of incendiary evidence about drugs and shanks and violence towards officers and the detainees themselves. This would have not only destroyed Class II’s chances for success, it would also have created the appearance that the Plaintiffs’ case was at odds with jail security, thereby creating an unacceptable spillover risk for the Class I strip search methodology claims.18 Thus, merely surviving summary judgment so that we could present the case to a jury, which is the most that civil rights plaintiffs usually can hope for in discovery, was not enough. Because there was an undeniable history of contraband entering the Jail, Class Counsel needed to so thoroughly undermine the foundation for any conclusion that the evidence was relevant to Class II’s claims as to leave no jury question at all regarding the weight of the evidence. This
18 Class Counsel’s concerns were validated very quickly after we filed the case when the jury in the Thompson case came back with a defense verdict on roughly the same blanket strip search issue. See Exhibit S, Thompson v. County of Cook, No. 03 cv 7172 (N.D. Ill. Feb. 7, 2006).
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was no easy task. There were 2,000 pages of contraband reports, as well as anecdotal evidence from every Jail policymaker and employee who sat for a deposition. Nevertheless, we were able to establish that there was no evidence to link these thousands of contraband incidents to smuggling by members of the misdemeanor class. We also marshaled evidence to establish that it was feasible for the Jail to treat post-arraignment misdemeanor detainees in the same manner as other jails handle the pre-arraignment detainees that were the focus of the extant case law prohibiting blanket strip searches. This included not only issues of processing but, also, housing persons whom the court had ordered to be detained pending trial or making bond.
We also managed to develop sufficient evidence to obtain summary judgment in the Class’ favor on the methodology claims even though the Jail initially presented numerous justifications for using a group strip search procedure which, given the extremely large population of new detainees being processed each day, risked creating a jury question on the reasonableness of such searches (a question the Court found was in fact presented for the post-February 2007 class members).
Plaintiffs succeeded on the search methods claim based in large part on two facts Class Counsel were able to marshal during discovery. The first was the Jail administrators’ concession that privacy dividers could be installed in the hallway without impeding the timely processing of hundreds of inmates per night. Once we elicited those admissions, we forced the Jail’s hand in terms of purchasing the dividers. At the same time, the declaration evidence we gathered indicated that the Jail was not in fact using the dividers as it claimed to be, so there was a fine line which we needed to hew in both demonstrating the reasonableness of the dividers for purposes of summary judgment and, simultaneously, preserving the claims of the post-February 2007 class members.19
19 We also were fortunate in being able to move the Defendants’ own expert from the positions in his report to essentially backing Plaintiffs’ position by cross-examining him at his deposition. Separately, we created summaries of the declarations we had gathered in order to present evidence of repeated abuses occurring on over 500 different days of the class period. The summaries presented a powerful picture of routine abuse as a policy at work in the Jail.
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Liability Trial Following the Court’s rulings on summary judgment, we briefed Defendants’ motions for reconsideration and their request for an interlocutory appeal. Simultaneously, five of our attorneys began preparing for the liability trial. We took every preparation we could to win the trial, not only for the sake of the post-February 2007 class members, but also to protect those who had prevailed via the Court’s summary judgment ruling. Defendants clearly contemplated appealing that ruling, and we feared that a jury verdict for the defense would provide substantial fodder to undermine summary judgment in the eyes of the Seventh Circuit, even if it was not technically relevant. Moreover, the trial presented Defendants three bites at the apple because there were three Class I claims on which we had prevailed at summary judgment and which we needed to prove anew to the jury. There was extensive additional investigation, discovery and motion practice prior to trial. As explained above, we vetted hundreds of witnesses, and then participated in both written and deposition discovery regarding 34 class members who were disclosed for the trial. Between the Court’s February 23, 2009 order on summary judgment and the commencement of trial on August 13, 2009, the parties litigated 55 written motions, including 32 motions in limine. Locating and vetting class members for the trials was also time-consuming. Counsel faced the challenge of finding good witnesses out of a pool of hundreds of thousands of persons in a population that typically have credibility problems. Moreover, we had to prove a continuity of conduct over the course of years, which meant that we needed good witnesses from throughout the relevant time-frame. With a constant eye on preparing cases for jury trial, undersigned counsel invested heavily in locating the best witnesses available to support the Class’s claims. Class counsel also had to retain a number of experts, both as consultants and as testifying experts. We vetted approximately a dozen potential experts and ended up using a jail practice expert, a statistician, two database experts, and a damages expert. The trial covered eight days and 29 witnesses. Both from the standpoint of preparing the case and of presenting it to a jury, the trial of this class action was largely unchartered territory
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for which there was little guidance. As Professor Eisenberg attests, class actions are almost always either dismissed or else settled following class certification and before a trial. Exhibit L, Eisenberg Aff. ¶ 82. See also Jaffe Pension Plan v. Household Int’l, Inc., No. 02 cv 5893, 2010 WL 5017284, at *1 (N.D. Ill. Nov. 22, 2010) (“securities fraud class actions have rarely proceeded to trial, let alone reached subsequent proceedings”); In re Hanger Orthopedic Group, Inc. Securities Litig., 418 F. Supp. 2d 164, 170 (E.D.N.Y. 2006) (same); Waters, 190 F.3d at 1299 (“Rarely do class action litigations proceed to trial.”). Indeed, the 700-plus-page Federal Judicial Manual on Complex Litigation (Fourth) dedicates a scant three paragraphs to the subject of trials in class actions, concluding: “[t]here is no consensus on the use of [class action trial] procedures, however, and appellate review is scant.” Id. at 307. There are precious few precedents for class action trials at all, much less in the context of a case such as this, where there were multiple issues and questions for the jury, and where the evidence consisted largely of anecdotal accounts rather than documents and experts.
Interlocutory Appeal Following a Plaintiffs’ verdict on all three claims, the Defendants filed an interlocutory appeal on immunity grounds, as well as a motion to certify a far broader interlocutory appeal covering the merits of the summary judgment decision and jury verdict, a motion to stay the case, and a motion for new trial and judgment as a matter of law. Plaintiffs successfully briefed each of them, and filed a motion to dismiss the interlocutory appeal in the Seventh Circuit as well as a court-ordered brief on finality of the judgment appealed from. Those issues were sent to the merits panel and briefing was ordered on the appeal. See Young, No. 09-3092, Doc. 17-1 (7th Cir. Nov. 13, 2009). Despite the fact that the Court denied the Sheriff’s motion to certify an interlocutory appeal on the merits, the Sheriff proceeded to make those arguments in his immunity appeal anyway, claiming that the issues were sufficiently intertwined with the immunity issues to give the Seventh Circuit jurisdiction over the whole case. Accordingly, Class Counsel was called upon to defend the entire case on appeal, and we prepared an exhaustive 53-page response addressing every aspect of the summary judgment merits and the jury’s verdict.
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In the end, the arguments we raised in our motion to dismiss the appeal prevailed. The merits panel found that the Defendant’s immunity argument was too insubstantial to create a non-frivolous basis for jurisdiction. The appeal was dismissed without the court reaching any of the substantive issues going to the merits, deferring them until appeal after final judgment. See Mercado v. Dart, 604 F.3d 360, 366 (7th Cir. 2010); see also id. at 364 (agreeing with this Court that “[T]his appeal is substantively frivolous. It is nothing but a delaying tactic and deserves to be swiftly squelched.”).
The Damages Phase After dealing with the slew of Defendants’ motions that followed in the wake of the liability verdict, Class Counsel initiated damages discovery, consulted with experts about proving damages on a class-wide basis, and researched procedures for using special masters. This process culminated in Plaintiffs’ motion for a jury trial on class-wide damages. See Dckt. No. 493 (Plaintiffs’ Motion to Appoint a Special Master for the Damages Phase of the Case). After responsive briefing and argument, the Court denied the motion without prejudice, concluding that it would hold jury trials so that the parties could see what the claims were worth. See Dckt. No. 503. Thereafter, our five trial attorneys once again geared up for trial on a very short time frame, locating witnesses, participating in written and oral discovery, working with an expert, filing motions, and preparing ten plaintiffs for trial. In addition to the Class members, Counsel prepared to examine corroborating damages witnesses for each Class member (who were deposed but did not ultimately testify). Counsel also deposed thirteen Cermak Health Services employees and Jail employees who were disclosed by the Defendants to rebut the damages Plaintiffs, but who never testified. Three separate jury trials were held back-to-back over the course of nine days. At the conclusion of each trial, the juries awarded substantial damages to compensate plaintiffs for their injuries.
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Settlement Negotiations Even after Plaintiffs prevailed at each stage – including on motions to dismiss, motions for class certification, cross-motions for summary judgment, two interlocutory appeals to the Seventh Circuit, a liability trial, and three individual damage trials – negotiating a favorable settlement for the Class was not an easy proposition. In addition to the complexity of modeling claims rates and analyzing class sizes, the Parties were far apart on money, a gap that was magnified by several insurers’ refusals to pay under the County’s policies. The Court is familiar with the fact that it required at least six mediation sessions, as well as much additional work among the Parties, to finally reach a settlement agreement. Leaving aside the practical and political dimensions of any possible settlement, Class Counsel had to analyze numerous issues of insurance coverage and assignments. This required a great deal of research and creative thinking regarding relatively esoteric issues of insurance coverage, bad faith litigation, and municipal liability insurance policies. One measure of how complicated the negotiation became is that the lawyers for both sides had to hire coverage counsel to advise them. To ensure that the Class had every advantage, Class Counsel hired an insurance specialist from the Howrey law firm to advise and assist. As stated above, Class Counsel paid the Howrey firm almost $50,000, at hourly rates of $605/hour for an attorney with the same graduation year as Mr. Kanovitz. Exhibit K (Howrey invoices).
Claims Administration And Notice Once a settlement was reached, Class Counsel took the lead in soliciting competitive bids from possible claims administrators. Counsel also developed training materials for the claims administrator’s call center, and helped to train the company’s customer service representatives who answer Class Member inquiries. Exhibit B, Affidavit of Robin Niemiec, at ¶ 4(e). We also used our best efforts to get actual notice to the Class Members so as to facilitate claims by as many eligible people as possible. Prior to mailing, we made sure that the addresses in the Jail’s records were updated through national databases for changes of addresses. See Exhibit R, Keen Decl. ¶11. In addition, we obtained, via the Illinois Freedom of Information
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Act, a database of all people being held at any Illinois Department of Correction (“IDOC”) facility in order to send direct notice to incarcerated class members who would not otherwise have received notice. Id. ¶ 12. We also researched IDOC mail rules for each facility, and instructed the Claims Administrator to print special envelopes complying with the particulars of each facility. Id. ¶ 15. Further, we worked with IDOC’s parole division to obtain the current addresses for individuals on parole. Id. ¶ 13. As a result of these efforts, 260,000 individual notice packets were mailed on December 13, 2010. See Exhibit B, Niemiec Affidavit ¶ 12.
We also allocated attorneys and staff within the firm to assist class members in the claims process. We held clinics at the Harold Washington Public Library on weekends to assist class members in submitting claims forms and also accepted myriad “walk-ins” at our office during the week. See Exhibit R, Bala Keen Decl. ¶ 16. Thousands of class members also chose to contact us by telephone and letters. Id. ¶ 9. For a period of time, we had to dedicate two full-time attorneys to respond to all these inquires. Id. We have also received approximately 1,800 inmate letters since sending the Notice of the Settlement and have responded to each of these letters individually. Id. ¶ 8-9.
Even now that the claims period has expired, Class Counsel will continue to invest significant time working with opposing counsel and the Claims Administrator to review the validity of the large number of claims that were submitted, and to determine the proper payment level to which valid claimants are entitled. We estimate that another 610 hours of attorney time will be required before the administration process is completed. Id. ¶ 18.
Response and Claims Rates The Class has responded positively to the Settlement. As of the date of this filing, 77,933 individuals submitted claim forms. See Exhibit B, Niemiec Aff. ¶ 18. Based on preliminary analysis to date, the Claims Administrator expects that 61,239 of these forms are valid claims, meaning that we will have achieved a 25% claims rate. Id. ¶ 20, 21. The claims administrator has 30 years of experience administering class actions involving similar populations of claimants, and our efforts yielded one of the best claims rates the company
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has ever seen. See Exhibit B, Niemiec Aff. ¶ 1. Indeed, some historical claims rates in strip search settlements involving comparable municipalities have been significantly lower. See, e.g., McBean v. City of New York, 233 F.R.D. 377, 382 (S.D.N.Y. 2006) (7.5% claims rate; of 3,402 claims returned out of 40,352 class members); Tyson v. City of New York, Case No. 97 cv 3762 (S.D.N.Y. filed 7/28/2003) (less than 10% claims rate); Williams v. County of Los Angeles, 2:97 cv 03826-CW (C.D. Cal.) (9.15% participation rate) (available at http://www.clearinghouse.net/ detail.php?id=9746). It appears likely that once the claims administration process is completed, over 50,000 class members will obtain benefits from the Settlement Fund.
As things move forward, Counsel will continue to oversee and supervise the claims administrator’s processing of claim forms, resolving disputed claims, and making payments to Class Members until the claims processing is completed.
* * * * In sum, this case was anything but simple. This was not the type of class action in which counsel merely shows up, gets in line with the other law firms, and bides time until distribution of the fund. If there was to be any recovery, Class Counsel was going to have draw on their skills and experience to manufacture a path to victory, a path full of potential pitfalls. This reality further supports the contingency sought here.
5. The Absence Of Any Objections To The Settlement Provision Allowing A One-Third Contingency Fee
As a final note, this Court may also wish to consider that not one of the tens of thousands of responding class members have raised issues with the proposed fee. In contrast to some abusive class actions where recoveries are structured as little more than a pretext to pay counsels’ fees, this Class is obviously pleased with the result, as well they should be. Compare Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) (13% of the class in a jail conditions case filed objections to a settlement). Here, the total absence of any objections to the proposed fee is further evidence of the reasonableness of a one-third fee.
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D. Any “Stair Step” Method Of Reducing The Fee Would Be Inappropriate Here While recognizing the primacy of risk, some Seventh Circuit decisions also note that clients sometimes negotiate “diminishing marginal” fee structure in which the contingency percentage varies by layer of recovery. See Synthroid I, 264 F.3d at 721. This concept has no valid applicability here for several reasons. First, the economics that would support such a stair step approach make sense only in cases, such as commercial and consumer cases, where the amount of damages is essentially fixed, such that a greater commitment of time by counsel will not expand the damages available to the Class fund. Id. at 721 (noting that class actions and commercial contingency structures “produce diminishing marginal fees when the recovery will not necessarily increase in proportion to the number of hours devoted to the case”). Here, by contrast, the damages were purely “soft” and, viewed realistically, the upper end of the fund was truly just a function of how hard and far Class Counsel could push the County before one side blinked. In a very real sense, Class Counsel continually expanded the recovery by continuing to fight through trial, appeal, and beyond, until we obtained what we felt to be a fund that was fair for the Class.20 As it turned out, the course of the litigation served to confirm that an ex ante stair step arrangement would have run directly counter to the Class’ best interests. Recall that the County stood on its offer of $20 million – including an $8 million dollar contingency fee – and would go no higher. By refusing to settle on the cheap and instead investing the additional time to continue the battle through the damages trials and appeal, Class Counsel eventually succeeded in increasing the settlement by 275% ($35 million additional dollars) plus the assignment of the insurance claims.
20 Comparable cases litigated by other class counsel have resulted in far smaller settlements when counsel accepted settlement offers without taking the case to a liability trial, much less three additional damages trials and an appeal. See Jackson v. Sheriff of Cook County, No. 06 cv 493 (N.D. Ill. Aug. 28, 2007) ($4.575 million fund for strip searches with forced penile swabbing of approximately 160,000 individuals post-arraignment) (Exhibit T); Bullock v. County of Cook, No. 04 cv 1051 (N.D. Ill. Nov. 18, 2010) ($4.2 million dollar fund for strip searches of approximately 150,000 individuals returned to the jail for out-processing after court appearance that warranted their release) (Order Granting Preliminary Approval and Mot. for Preliminary Approval, attached as Group Exhibit U).
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The Class’ interests were thus served quite well by a compensatory incentive to pursue the strategy of pushing the upper limit, despite the substantial additional risk. Class Counsel, in other words, turned down the sure thing, instead risking everything because counsel believed an appropriate fund was much higher than what was being offered. In the end, that perseverance (and the associated incentive) virtually tripled what Class received. Under those circumstances, a marginal fee arrangement that reduced the contingency percentage once the fund exceeded, say, $20 million would have been a terrible deal for the Class. See Synthroid I, 264 F.3d at 721 (“This is not to say that systems with declining marginal percentages are always best. They also create declining marginal returns to legal work, ensuring that at some point attorneys’ opportunity cost will exceed the benefits of pushing for a larger recovery, even though extra work could benefit the client.”).
Finally, even if this case had been a good candidate for a commercial-type stair step arrangement, that alone would say nothing about what percentages should govern each band of recovery and, thus, sheds no light on whether an overall one-third percentage is proper for this settlement. For example, given that the Class needed Class Counsel to risk more than $200,000 of out of pocket costs and approximately 15,000 attorney-hours to pursue this case, and given the ex ante risk of loss and the likely financial stakes, the market may reasonably produce bands of 50% of the first ten million,21 one-third of the next $25 million, and 25% of any additional recovery. The overall result of that banding example turns out to be exactly the same as a onethird contingency. Given that one-third is a common award in similar-sized and larger funds where the case presented a significant risk of no recovery, there is every reason to believe that the appropriate risk bands should blend to at least one-third.
Furthermore, if anything, the Class here would reasonably have chosen to negotiate a stair-stepped fee that actually increased, rather than decreased. The lower-middle seven figure
21 In Kirchoff, the Seventh Circuit observed that even in cases far less risky than civil rights litigation, retainers commonly provide for a 50% contingency if the Defendant takes an appeal. 786 F.2d at 324, n.5.
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results obtained in cases like Bullock and Jackson set the baseline; assuming the Class wished to do better, a reasonable position is that it would only be willing to pay a low contingency for average results, but that it would pay more for a better recovery, for example, by negotiating for only 25% of the first $5 million, one-third of the next $20 million, and 40% of everything above that. Such an arrangement would equate to a 36% overall fee, which is essentially what Judge Ashman found to be the market rate very recently in a similarly-sized common fund case that had been pending before this Court. Airline Pilots Assoc., No. 06 cv 6869, slip op. at 7 (35% fee award is “consistent with awards in similarly complex cases in this and other jurisdictions, and accurately reflects the market rate for Class Counsel’s services consistent with Seventh Circuit case law...”) (attached as Exhibit A).
The point is that a one-third overall contingency fee is reasonable and accords with the market for the type of case and representation for which the Class would have been negotiating. The Court should, therefore, approve the one-third fee allowed under the Settlement Agreement.
E. For Cross-Check Purposes, A One-Third Contingency Fee Would Not Create An Unjustified “Windfall”
As explained above, Counsel has requested a fee percentage that is well-within the range of what is normal for cases of this type. That said, courts may, if they chose to do so, utilize a “rough lodestar cross check” to ensure that counsel’s total contingency fee as compared to the rough lodestar value of counsel’s hourly time is within a reasonable range of multiples of that value. In re Trans Union Corp. Privacy Litig., No. 00 cv 4729, 2009 WL 4799954, at *4 (N.D. Ill. Dec. 9, 2009), modified and remanded on other grounds, 629 F.3d 741 (7th Cir. 2011).
To be clear, a cross check is certainly not required, and some courts decline to employ one. See, e.g., Will, 2010 WL 4818174 at *3 (“The use of a lodestar cross-check in a common fund case is unnecessary, arbitrary, and potentially counterproductive”); In re Comdisco Sec. Litig., 150 F. Supp. 2d 943, 949 (N.D. Ill. 2001) (“[T]o view the matter through the lens of free market principles, any such ex post reevaluation (with or without a multiplier) is truly unjustified as a matter of logical analysis-and certainly so if it is only a one-way street.”). However, even were the Court to consider this analysis, it does nothing to change the result.
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1. Multipliers Between Two And Five Times Are Ordinarily Considered Acceptable
Courts that do consider the lodestar have found multipliers within the two to five times range to be acceptable. See, e.g., In re Diet Drugs, 582 F.3d 524, 545 n.42 (3d Cir. 2009) (“Whether the multiplier is 2.6, 3.4, or somewhere in that neighborhood, it is not problematically high”); Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) (multiplier of 3.5 in antitrust class action); In re Xcel Energy, Inc., Securities, Derivative & “ERISA” Litig., 364 F. Supp. 2d 980, 999 (D. Minn. 2005) (approving a 4.7 multiplier in lodestar cross-check); In re Rite Aid Corp. Sec. Litig., 362 F. Supp. 2d 587, 590 (E.D. Pa. 2005) (approving fee award of a 6.96 multiplier); In re Interpublic Sec. Litig., No. Civ. 6527 Class Action, 2004 U.S. Dist. LEXIS 21429, at *36-37 (S.D.N.Y. Oct. 26, 2004) (multiplier of 3.96); In re Household Int’l Inc., No. 02-7921 (N.D. Ill. Nov. 22, 2004) (approving fees amounting to a 4.65 multiplier) (attached as Exhibit V); Roberts v. Texaco, Inc., 979 F. Supp. 185, 198 (S.D.N.Y. 1997) (awarding a 5.5 multiplier in race discrimination class action), reversed on other grounds, Kaplan v. Rand, 192 F.3d 60 (2d Cir. 1999); In re Abbott Labs. Secur. Litig., No. 92 cv 3869, 1995 WL 792083, at *14 (N.D. Ill. July 3, 1995) (risks of case justified a 2.0 to 4.0 multiplier); Maley, 186 F. Supp. 2d at 369-71 (approving “modest multiplier” of 4.65 in securities fraud class action).
2. Class Counsel’s Multiplier Of Approximately Three Is Well Within The Range Of Acceptable
Here, the rough lodestar cross-check confirms that a one-third contingency is comfortably within the range of reasonableness. The total value of our firm’s lodestar time expended on behalf of the class comes to approximately $5,994,894.75. Kanovitz Decl. ¶ 42. This lodestar reflects 3,730.5, 11,700, and 1,140 hours of work, billed at competitive market rates for partners, non-partner attorneys, and paralegals, respectively. See Exhibits 1 and 3 to Kanovitz Decl. (time sheets and lodestar summary). At a one-third contingency, the multiplier comes to roughly 3.06. As demonstrated above, this multiplier is definitely within the cross-check range that courts have
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found acceptable.22
In any event, the lodestar cross-check cannot become a vehicle to “re-engineer” the
contingency percentage, because to do so would contravene the Seventh Circuit’s market-based
ex ante approach. See Synthroid II, 325 F.3d at 979-80 (7th Cir. 2003) (“The client cares about
the outcome alone” and class counsel’s efficiency should not be used “to reduce class counsel’s
percentage of the fund that their work produced”). Neither should the cross-check cause a court
to discount the ex ante market assessment of the riskiness of the case by substituting post-hoc
data suggesting that the bet succeeded. Again, to do so would circumvent the Seventh Circuit’s
ex ante market approach by discounting the economic reality that contingency firms experience
losses as well as wins, and must offset the losers with the winners. As Judge Shadur observed in
Comdisco:
[I]t seems entirely unfair to. . . to measure the reasonableness of a bid-generated percentage-of-recovery fee against a lodestar benchmark that has been calculated in hindsight in terms of those actually expended hours. After all, if the litigation had instead taken the path under which counsel had to slug the matter out to get that same result, spending (say) 150% or 200% of the originally anticipated hours, counsel would not be allowed to restructure its percentage bid in comparable hindsight terms to get a bigger share of the recovery.
150 F. Supp. 2d at 948.
IV. Counsel’s Request For Reimbursement Of Costs Is Reasonable And Should Be Approved
Class Counsel additionally seeks $227,374.98, said amount being costs they advanced to
produce the results achieved here. See Exhibit X (Declaration of Andy Thayer and attached
materials).
The Settlement Agreement expressly authorizes payment of Class Counsel’s costs from
22 Class Counsel have submitted the affidavit of Bruce Meckler in support of their fee petition to opine on their rates, which are significantly below where they would be had counsel remained at their prior law firms representing corporate clients. See Affidavit of Bruce Meckler, attached as Exhibit W. Mr. Meckler frequently opines on attorneys’ fees in the context fee litigation. Id. ¶ 2-3. Moreover, even though the “rough lodestar” cross check does not require scrutiny of the billable hours, and even though courts permit counsel to proffer summaries, we have provided detailed time records, not merely a summary of the hours charged, as class counsel often do. Our records demonstrate the reasonable, efficient and hard work that we put in over the past five years to achieve a tremendous result for the class. See Exhibit J, Kanovitz Decl. ¶ 3.
36

Case: 1:06-cv-00552 Document #: 637 Filed: 02/15/11 Page 42 of 44 PageID #:13917
the fund. Dckt. No. 624, ¶ 33. This accords with Rule 23(h), which provides for reimbursement of “reasonable” expenses in common fund class action settlements such as this. Fed. R. Civ. P. 23(h); see also 1998 Advisory Committee Notes (subsection 23(h) applies to cost awards in common fund settlements). Indeed, “[i]t is well-established that counsel who create a common fund like this one are entitled to the reimbursement of litigation costs and expenses. The expenses that may be reimbursed from the common fund encompass ‘all reasonable’ litigation-related expenses.” In re Marsh ERISA Litig., 265 F.R.D. 128, 150 (S.D.N.Y. 2010).
As reflected in Mr. Thayer’s Declaration and the accompanying materials, the costs for which Counsel seeks reimbursement represent the reasonable expenditures necessary to advance the case, such as expert fees for data analysis and jail policy experts, deposition and transcript fees and travel. Counsel incurred these reasonable expenses to aggressively litigate the case, such as conducting the necessary data and statistical analysis and engaging experts. These are the typical expenses the market reimburses as the costs of litigation. See, e.g., Synthroid I, 264 F.3d at 722 (reversing the district court for failure to award costs because court failed to consider the market’s reimbursement for such costs); In re Continental Sec. Litig., 962 F.2d at 570 (finding error for district court not to reimburse class counsel for electronic research expenses from common fund).23 The $227,374.98 sought should be approved. V. The Court Should Approve The Incentive Bonuses For Class Representatives And
Class Members Who Testified At The Liability Trial Class Counsel requests that the Court approve the $25,000 Named Plaintiff Incentive Awards and the $10,000 Testifying Class Member Incentive Awards, to be paid out of the Settlement Fund, as provided for in Paragraphs 30 and 31 of the Settlement Agreement. The nine Named Plaintiffs in this action (Kim Young, Ronald Johnson, William Jones, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek, Carl Gray and Matthew Liptak) were active, hands-on participants in this litigation, all to the benefit of the Class as a whole.
23 Over the course of their representation, Class Counsel generated Westlaw bills in the amount of $355,201. However, Class Counsel has decided not to seek reimbursement for that cost, notwithstanding the legal authority to do so cited in the text, because West invoices our firm at a fixed rate. In that sense, the cost is thus more akin to overhead, and Class Counsel cites it as further support for our request for one-third contingency.
37

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First, Named Plaintiff Kim Young worked hard to locate legal counsel to redress the wrongs she suffered at the Jail; she persevered through ten attorney rejections before locating Class Counsel. See Exhibit G, Young Aff. ¶ 3. The Class further benefitted from the substantial service provided by the nine Named Plaintiffs, and the significant investment of their time, including consulting with Counsel and actively participating in discovery. Each of the Named Plaintiffs prepared for and was deposed by Defendants’ counsel, undergoing extensive questioning about their experiences at the Jail. In addition, six of the Named Plaintiffs testified at the nine-day liability trial in August 2009.
The Named Plaintiff Incentive Awards sought here are consistent with those awarded in other common fund class actions with active participation, such as Plaintiffs exhibited here. See Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (affirming award of $25,000 to named plaintiff in recognition of the actions the plaintiff “[took] to protect the interests of the class, the degree to which the class [] benefitted from those actions, and the amount of time and effort” the named plaintiff expended in pursuing the litigation); Will, 2010 WL 4818174, at *4 (describing $25,000 named plaintiff incentive award as “well within the ranges typically awarded” for participation in the litigation); Berger v. Xerox Corp. Retirement Income Guar. Plan, No. 00-584, No. 2004 WL 287902, at *3 (S.D. Ill. Jan. 22, 2004) (approving $20,000 named plaintiff incentive awards).
In addition to the Named Plaintiffs, fifteen class members testified at the liability trial. They too had to participate in discovery, as well as take time away from work and other responsibilities, and endure the rigor and stress of litigation, all without knowing whether they would prevail. Their contributions to the liability trial were essential to the Class’s success at that critical juncture in the litigation. Approval of the nine Named Plaintiff Incentive Awards is warranted based on these individuals’ active participation in the litigation, their expenditure of time, and the benefit they conferred on the Class.24
24 The individuals eligible for the Testifying Class Member Incentive Awards are: Paul Beck, Bobby Bishop, Robert Brown, Robert Consiglio, James Curran, Michael Higgs, John Jacobson, Derrick Jones, Dennis Maimonis, Darryl Paul, Osbaldo Santiago, Eric Slapak, Del Wilson and Rickey Winfield.
38

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Conclusion For the reasons set forth herein, Class Counsel respectfully request that the Court approve payment from the Settlement Fund for: (1) a fee award of one-third of the Settlement Fund in the amount of $18,333,333 to Class Counsel; (2) reimbursement of Class Counsel’s costs in the total amount of $227,374.98; (3) Named Plaintiffs’ Incentive Awards in the amount of $25,000 to each of the nine named plaintiffs; and (4) Testifying Class Member Incentive Awards in the amount of $10,000 to each of the individuals, who are not Named Plaintiffs, and who testified at the August 2009 trial.

Arthur Loevv Jon Loevy Mike Kanovitz Samantha Liskow Roshna Bala Keen Heather Lewis Donnell LOEVY & LOEVY 312 North May Suite 100 Chicago, IL 60607

Respectfully submitted, s/ Mike Kanovitz

Certificate of Service
I, Mike Kanovitz, an attorney, hereby certify that on February 15, 2011, I caused a copy of this Petition to be filed and served on all counsel of record by means of the Court’s electronic filing system.
s/ Mike Kanovitz

39

 
 Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 1 of 27 PageID #:15718

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

KIM YOUNG, RONALD JOHNSON,

)

WILLIAM JONES, ALLEN GORMAN,

)

GERRAD LAMOUR, LEE MERCADO,

)

BRADLEY HYTREK, CARL GRAY, and

)

MATTHEW LIPTAK, on behalf of themselves )

and a class of others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF COOK and SHERIFF TOM

)

DART, Sheriff of Cook County

)

)

)

Defendants.

)

No: 06-CV-552
JUDGE KENNELLY JURY TRIAL DEMANDED

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THE PARTIES’ JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 2 of 27 PageID #:15719
Table of Contents Table of Authorities ........................................................................................................................ ii Introduction ......................................................................................................................................1 Facts .................................................................................................................................................3
A. Overview of the Litigation...................................................................................................3 B. The Settlement Process and the Settlement Agreement ......................................................3 C. Notice and Claims Administration.......................................................................................5 D. Per-Class Member Distribution ...........................................................................................9 Discussion ......................................................................................................................................12
A. The Proposed Settlement is Fair, Reasonable and Adequate, and Should Be Finally Approved...................................................................................................12 1. The Strength of Plaintiffs’ Case Is Appropriately Balanced with Defendant’s Settlement Offer ..........................................................................13 2. Continued Litigation Would Be Lengthy, Complex And Costly ....................15 3. There Is Virtually No Genuine Opposition To The Settlement Agreement ........................................................................................................15 4. Class Counsel Supports This Settlement Agreement.......................................19 5. This Settlement Was Negotiated Only After Significant Discovery And Litigation ..................................................................................................19
B. The Notice Provided To Class Members Meets Due Process .....................................20 C. The Court Should Grant Final Certification of the Two Settlement Classes...............22 Conclusion .....................................................................................................................................23

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Table of Authorities Armstrong v. Bd. of Sch. Dirs. of Milwaukee, 616 F.2d 305 (7th Cir. 1980) .........................12, 13 Boone v. City of Philadelphia, No.05 CV 0185 (E.D. Pa. June 1, 2009) ................................11, 12 Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc) .....................15 Bullock v. Dart, No. 04 CV 01051 (N.D. Ill.) (Filed Nov. 17, 2010) .............................................1 Calvin v. Sheriff of Will County, 03 CV 3086 (N.D. Ill. Nov. 11, 2006) ...............................11, 12 E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884 (7th Cir. 1985) ............................12, 13, 17 Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998) ..........................................................................12 Florence v. Bd. of Chosen Freeholders of County of Burlington, 621 F.3d 296
(3rd Cir. 2010) ...................................................................................................................15 Gautreaux v. Pierce, 690 F.2d 616 (7th Cir. 1982)........................................................................12 Isby v. Bayh, 75 F.3d 1191 (7th Cir.1996) ........................................................................12, 13, 15 Jackson v. Sheriff of Cook County, No. 06 cv 493 (N.D. Ill. Nov. 2, 2007) ....................1, 8, 9, 11 McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006)....................................................9 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ...........................................................20, 21 Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc) ........................................................15 Reynolds v. Beneficial Nat. Bank, 288 F.3d 277 (7th Cir. 2002)..................................................14 Synfuel Technologies, Inc. v. DHL Express (USA), Inc., 463 F.3d 646
(7th Cir. 2006)..............................................................................................................13, 14 Tyson v. City of New York, Case No. 97 cv 3762 (S.D.N.Y).........................................................9 Williams v. County of Los Angeles, 2:97 cv 03826-CW (C.D. Cal.) .............................................9
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Plaintiffs, by and through undersigned class counsel, Loevy & Loevy, respectfully submit this Memorandum in Support of the Parties’ Joint Motion for Final Approval of the Settlement Agreement. The Motion should be granted for the reasons that follow.
Introduction Plaintiffs and their counsel overcame numerous obstacles to reach the point of a satisfactory settlement. They aggressively litigated for over four years, pushing the case much further than most class actions ever go. As a result, the Class was able to achieve a record-breaking settlement of $55 million in cash, plus an assignment of claims. All parties to the case now seek to have the Court finally approve the Settlement and bring this litigation to an end. Courts consider several factors at this stage of the settlement process, and here they all point unanimously to final approval. For starters, Counsel respectfully submits that the negotiations yielded the maximum amounts that the Class could have hoped to attain in settlement, and the resulting fund is clearly fair and adequate for the Class. Other cases raising comparable issues for comparable classes achieved far less. See, e.g., Motion for Preliminary Approval and Settlement Agreement, Bullock v. Dart, No. 04 CV 01051 (N.D. Ill. Nov. 17, 2010) ($1.4 million dollar fund for class of 16,000 individuals with payment awards between $100 and $200 per valid claim) (attached as Group Exhibit A at pp. 1, 10-11); Order Granting Final Approval and Memorandum in Support of Proposed Settlement, Jackson v. Sheriff of Cook County, No. 06 CV 493 (N.D. Ill. Nov. 2, 2007) ($4.575 million dollar fund for class of approximately 100,000 individuals with payment awards between $100 and $200) (attached as Group Exhibit B at pp. 1, 3).

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Moreover, settlement was the only good litigation option at the time that the Class chose to settle. Not only did the Class avoid the risk of appeal from the forthcoming final judgment -- which in this case was a serious concern in light of changing law and the fear of sympathy for Defendants’ financial position -- it also avoided the untenable deluge of individual damages trials. Put simply, even if the Class won the appeal, most Class Members would have been losers in practical effect because of the impossibility of trying so many damages claims. There can be little doubt that the Settlement is fair and in the best interests of the Class.
Likewise, the notice sent to the Class was extremely effective. Class Counsel worked very hard to increase Class Member participation, and as a result of all of those diligent efforts (explained below), the Class Members have submitted claims at a high rate of at least 25%. By comparison, class actions involving strip search claims in New York and Los Angeles achieved claims rates of only 10% or less.
Finally, there have been very few objections to the settlement, particularly for a class of this size. Of the seven total objections, one was filed by an individual who apparently believes he should receive over $1.3 million from the fund, one seeks to have an award of clemency instead of money damages, and the remaining objections do not demonstrate any substantial grounds to doubt the adequacy and fairness of the Settlement.
Accordingly, and for the reasons that follow, the Court should finally approve the Settlement, finally certify the Settlement Classes, and order the Claims Administrator to make payments from the Settlement Fund to Class Members who have submitted timely and valid claims.
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Facts A. Overview Of The Litigation As the Court has had the opportunity to observe over the last four and one-half years, the parties actively and aggressively litigated this case before reaching a settlement. The case proceeded all the way through summary judgment, a liability trial, an interlocutory appeal, and several damages trials – the later three stages going well beyond the amount of process that most classes receive. In other words, the claims here were thoroughly litigated; there is no sense in which the Settlement was reached prematurely or without an ample exploration of the merits of the Class’ prospects and pitfalls. Class Counsel’s previously-filed Petition for attorneys’ fees, costs, and class member incentive bonuses (Dkt. 637) contains an extensive summary of the litigation activities during each stage of the litigation, as well as the associated risks faced by the Class. Rather than set forth the same lengthy and detailed background here, Plaintiffs respectfully refer the Court to pages 20-28 of that pleading, which is incorporated herein. B. The Settlement Process And The Settlement Agreement The Settlement Fund that was eventually accepted by the Class was not only the result of not only hard litigating, but also hard bargaining. As the Court is aware, the parties spent months in negotiations, both in six mediation sessions involving this Court, as well as additional outside conversations. Both sides also hired insurance coverage attorneys to advise them about the various applicable insurance policies that covered Cook County during the class period. Plaintiffs also analyzed the Defendants’ database, reviewed claims rates from other class actions with similar populations of claimants, and
3

Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 7 of 27 PageID #:15724
conducted a 2,000 person random sample audit to gain a better understanding of the percentage of detainees who fit the Class II definition. Based on all of these efforts, Class Counsel was able to negotiate a Settlement Fund that maximized the total consideration that the County was able to pay to the Class.
The proposed Settlement Agreement provides the Class with both a $55 million dollar cash fund and an assignment of claims against certain of the County’s insurers (the “Settlement Fund”). See Exhibit C (Settlement Agreement at ¶¶ 27-28). The cash portion pays for compensation to Class Members, as well as the costs of notice and settlement administration, incentive bonuses to class members who assisted the class, and the attorneys’ fees and costs for Class Counsel. Id. at ¶¶ 29-33. The cash available for payment to the Class will be distributed in shares which vary based upon three categories of class membership: men in Class II, men in Class I, and women in Class II. Id. at ¶ 34. A reversion of up to $5 million was also built into the Settlement to protect Cook County in the event that the class claims rate was not sufficient to consume the funds available for payment, net of fees and costs, using an expected payment of $1,000 for Class II men, $700 for Class I men, and $500 for Class II women. Id. at ¶ 37. However, as explained below, the claims rate in this case should be more than sufficient to moot any reversion. See Exhibit D (Declaration of Michael Kanovitz at ¶ 10). The Settlement Agreement provides that Settlement Class members will receive their payment from the cash portion of the Fund within 91 days after the entry of a final order approving the settlement (and assuming there are no appeals). See Exhibit C (Settlement Agreement at ¶ 44).
The Settlement Agreement also proposes that this Court retain jurisdiction until the litigation on the assigned claims is finally resolved so that the Court can determine
4

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the fairness of any settlement on the insurance claims and apportion fees and costs, though it does not require that such claims be pursued in federal court. See Exhibit C (Settlement Agreement at ¶ 47(f)). Any additional recovery on the assigned claims will be distributed to the claimants in a manner like the cash portion will be distributed. Id. at ¶ 44.
C. Notice and Claims Administration On November 24, 2010, the Court granted Plaintiffs’ motion for preliminary approval of the Settlement Agreement, and ordered the Claims Administrator to mail individual notice to potential Class Members. Dkt. 628; 624. The Court also approved the parties’ Notice Plan, Published Notice and Claim Form. Id. On December 13, 2010, pursuant to the Notice Plan, individual notices were mailed to 249,589 persons who appeared to be Class Members based on the data provided by Cook County Jail. See Exhibit E (Affidavit of Robin Niemiec at ¶ 12). The Notice was sent after the Claims Administrator first researched the last known address for Class Members in LexisNexis (which resulted in 155,555 updated addresses for individuals), and ran the class mailing list through the United States National Change of Address database. Id. at ¶ 7. In addition, Class Counsel provided the Claims Administrator the current population of individuals held at Illinois Department of Correction Facilities (“IDOC”) that Counsel had obtained via the Illinois Freedom of Information Act (“FOIA”). Id. at ¶¶ 8-10; Exhibit F (Affidavit of Roshna Bala Keen at ¶ 8). Counsel directed the Claims Administrator to compare the Class mailing list with IDOC’s population, which resulted in sending 29,019 individual Notice packets to Class
5

Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 9 of 27 PageID #:15726
Members within IDOC facilities, who likely would not otherwise have received notice. See Exhibit E (Niemiec Aff. at ¶ 9); Exhibit F (Bala Keen Aff. at ¶ 8).
To ensure that these Class Members received timely notices, Counsel also researched IDOC’s mail rules for each facility and instructed the Claims Administrator to print special envelopes complying with the particulars required by each facility. See Exhibit E (Niemiec Aff. at ¶ 10); Exhibit F (Bala Keen Aff. at ¶ 11). Counsel also worked with IDOC’s parole division to obtain the current address for anyone on parole, which resulted in sending 24,769 Notices to updated addresses for Class Members. See Exhibit E (Niemiec Aff. at ¶ 11); Exhibit F (Bala Keen Aff. at ¶ 9). The Claims Administrator mailed an additional 14,730 Notice Packets based on individuals’ requests. Exhibit E (Niemiec Aff. at ¶ 13).
Despite these efforts, approximately 87,050 Notice Packets were returned as undeliverable without forwarding address and 1,086 were returned with forwarding addresses, which the Claims Administrator then mailed to the new addresses. Id. at ¶ 14. For any Notice Packets returned from IDOC facilities, the Claims Administrator went to IDOC’s inmate locator on the IDOC website to find the current facility at which the individual was held, and then re-mailed the Notice Packet, which resulted in 1,933 Notice Packets being sent to a second IDOC facility. Id. All told, 266,252 Notice Packets were mailed to potential class members. Id. at ¶ 16.
In addition to the individual mailed Notice, published Notice was provided in two print cycles in: (1) La Raza, a Spanish-language weekly publication, published on December 17, 2010 and January 14, 2011; (2) the Chicago Sun Times, published on December 15, 2010 and January 15, 2011; (3) the Chicago Defender, published on
6

Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 10 of 27 PageID #:15727
December 15, 2010 and January 12, 2011; and (4) Prison Legal News, a monthly publication for incarcerated individuals, published on December 1, 2010 and January 1, 2011. See Exhibit E (Niemiec Aff. at ¶ 18). Published Notice ran in each of the publications as a quarter-page advertisement located in the main body of the paper (not the classified section). Additionally, a blank claim form was published in Prison Legal News in both print cycles, allowing incarcerated individuals to directly submit a claim form without needing to request one, which often requires extra time for these individuals.
The Notice Plan provided that the Jail would post “the Published Notice inside the Cook County Jail Receiving Classification and Diagnostic Center [RCDC] in a location that is accessible and visible to detainees.” See Exhibit C (Settlement Agreement at ¶ 14(h)). No date was specified for when the posting would occur, though the parties had contemplated that the posting would be placed in RCDC beginning on December 13, 2010, the date of the initial mailing.
The Cook County Department of Corrections (“CCDOC”) posted the Published Notice on January 3, 2011. See Exhibit F (Bala Keen Aff. at ¶ 13). The Published Notice was placed not only in the RCDC but in every division of the Jail and, in addition, it was posted in the law library and in several common areas of the Jail. Id. at ¶ 12-13. To accommodate Class Members who were processed into the Jail between December 13, 2010, and January 2, 2011, prior to the Jail posting, the parties agreed to accept late claims from these individuals, provided their claim is postmarked on or before February 17, 2011. Id. at ¶ 14. CCDOC has provided the Claims Administrator with a list of all
7

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admittees to the Jail during this time period. Id. at ¶ 15; see also Exhibit E (Niemiec Aff. at ¶ 17).
In addition to the published notice, Class Counsel held four clinics at the Chicago Harold Washington Public Library to assist class members in submitting claim forms, and also accepted a number of “walk-ins” at our law office. See Exhibit F (Bala Keen Aff. at ¶ 16). Thousands of class members also chose to contact Counsel by telephone, letter, and email. Id. at ¶ 4. Counsel received approximately 3,200 telephone calls and 1,800 inmate letters since sending the Notice, all of which were responded to individually. Id. at ¶ 4.
The Notice campaign was extraordinarily effective, and resulted in a claims rate for this case that is well above average. See Exhibit E (Niemiec Aff. at ¶ 41). To date, the Claims Administrator has received 78,314 claim forms of which 62,037 have been found to be valid and timely. Id. at ¶ 39. There are an additional 132 timely claims which the Claims Administrator still must process to determine if they are valid. Id. at ¶ 38. Thus, the claims rate for this settlement is at least 25% and could be as high as 28%. This is a much higher claims rate than average for this size class. See Exhibit E (Niemiec Aff. at ¶ 41) (Based on Rust’s experience as the claims administrator in other civil rights settlement class actions, the 25% eligible claim rate in this case is above-average and higher than similar settlements ). For example, the Jackson settlement achieved a claims rate of only 11% for the same class of Cook County Jail detainees represented here (the Jackson class was limited to men and the class period ended in 2007, so it covered approximately 100,000 members). See Group Exhibit G at p. 1 (Plaintiff’s Memorandum in Support of Approval of Proposed Settlement and Order Granting Final Approval,
8

Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 12 of 27 PageID #:15729
Jackson v. Sheriff of Cook County, No. 06 cv 493 (N.D. Ill. Nov. 2, 2007)). Likewise, strip search class actions in New York and Los Angeles also produced far lower claims rates. See Exhibit D (Kanovitz Decl. at Exhibit 6) (McBean v. City of New York, 02 CV 5426 (S.D.N.Y. 2006) (11% claims rate with 3,402 claims returned out of 40,352 class members)); id. at Exhibit 8 (Tyson v. City of New York, Case No. 97 CV 3762 (S.D.N.Y) (less than 10% claims rate with 6,000 claims returned in a class of 67,000)); id. at Exhibit 4 (Williams v. County of Los Angeles, 97 CV 03826 (C.D. Cal.) (13.3% claims rate with 36,730 claims returned in a class of 276,717)).
Thus, as a result of the high claims rate, far more class members will receive a payment through the Settlement Agreement than in the average case of this kind. Also, as a result of the high claims rate, there should be no reversion to Cook County, meaning that the Class will receive the benefit of the entire $55 million fund.
D. Per-Class Member Distribution As stated, Class Counsel has previously filed a Petition for attorneys’ fees and costs, as well as class representative and class member incentive bonuses allowed under the Settlement Agreement. Assuming the Court grants the Petition, the Class will receive $35,335,000, or 64.2% of the cash portion of the fund. This amount will be distributed entirely to the claimants, but, due to the high claim rates for this settlement, the estimated distribution per-class member will be prorated in accordance with the Settlement
9

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Agreement.1 The estimated per-class member payment amounts in the Settlement Agreement and Notice are up to $1,000 for Class II men, $700 for Class I men, and $500 for Class II women. See Exhibit D (Kanovitz Decl. at ¶ 7). Both the Settlement Agreement and the Class Notice state that the payment each class member receives would be less than the expected amount in the event that more than the anticipated number of Class Members submitted claims. See Exhibit C (Settlement Agreement at ¶ 26); Exhibit H (Notice at Question 8) (“If more than the expected number of class members submit claims, then the actual payments from the $55 million fund will be less than the expected payments, and there will be no reimbursement to the County”).
The pro rata adjustment amount should be approximately proportional to the amount by which the actual claims rate exceeds 20%. The final proration will also depend, to a lesser extent, upon the percentage mix of Class II to Class I claimants, because Class I men receive only 70% of the payment to Class II men, and women are only covered by the Settlement if they are in Class II.
At present, about 21% of claimants are confirmed to meet the definition of Class II based on the information for each claimant reflected in the Jail’s database. See Exhibit F (Bala Keen Aff. at ¶ 20). That percentage is expected to increase to as high as 26% as
1 As the parties closed the gap in their negotiations over the cash portion of the Settlement Fund and the County’s reversion rights, Class Counsel tried to arrive at as accurate an estimate of the claims rate as possible. Information Counsel had on other large strip search class actions (classes of 40,000 or greater) revealed an average claims rate of approximately 13%, with a high claims rate of approximately 20%. See Exhibit D (Kanovitz Decl. at ¶ 6), and id. at Exhibit 4 (summary chart). Rust Consulting, the Claims Administrator, confirmed that these figures fairly reflect the likely claims rate range for the Young class. See Exhibit F (Bala Keen Aff. at ¶ 19). Counsel calculated the anticipate a per-class member payments based on an assumption that Plaintiffs would achieve a claims rate towards the higher end of this range.
10

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the claims are processed, due to adjustments for ambiguities in the Jail’s database.2 If the rate of Class II membership reaches 26%, then the per-class member payments would be $770 for Class II men, $539 for Class I men, and $385 for Class II women at a 25% claims rate. Lower Class II rates would mean higher per-class member payments. Id. at ¶ 21.
Even with the above-average claims rate here, the cash portion of the fund remains so large that the prorated figures still compare favorably with the amounts paid in other strip search class actions approved as fair. See, e.g., Plaintiff’s Memorandum in Support of Approval of Proposed Settlement, Jackson, 06 CV 593 (N.D. Ill. Oct. 26, 2007) (awards of between $100-$200 for strip search and invasive penile swab, subject to reduction in the event that the claims rate exceeded 16%) (attached as Group Exhibit G at p. 3); Plaintiff’s Memorandum in Support of Approval of Proposed Settlement, Notice of Class Proposed Settlement and Hearing and Order Granting Final Approval, Calvin v. Sheriff of Will County, 03 CV 3086 (N.D. Ill. Nov. 11, 2006) (approving estimated payments of between $450 and $1,000 per class member, subject to reduction if the claims rate exceeded 15%) (attached as Group Exhibit I at pp., 7-8, 13, 15); Notice of Proposed Settlement and Hearing, Boone v. City of Philadelphia, No.05 CV 0185 (E.D.
2 The Jail’s database tracks the statute under which each class member was charged; however, that information alone is not sufficient to determine Class I/Class II membership for those statutes, which can be charged as either a felony or a misdemeanor (unless the statute involves a weapons or drug offense). See Exhibit D (Settlement Agreement at ¶ 29); Exhibit F (Bala Keen Aff. at ¶ 21). To address this deficiency the parties have agreed to send a letter to claimants with such charges, inviting them to submit proof that their charges were for a misdemeanor and not a felony. Id. at ¶ 22. The charges for claimants in this category who are known to be incarcerated (and who therefore may not have been able to obtain the necessary proof) will be researched by Class Counsel manually using Cook County Circuit Court records, a laborious process. Id. at ¶ 23. The final Class II rate is expected to be at or below 26% based on a random sample of 2,000 class members that Class Counsel researched during discovery. See Exhibit D (Kanovitz Decl. at ¶¶ 3-4).
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Pa. June 1, 2009) (misdemeanants would receive between $600 and $900 each while individuals who were arrested for more serious crimes would recover about $100 each out of the total settlement fund) (attached as Group Exhibit J at p. 4).3
Discussion The Court should finally approve the proposed settlement because it is fair, reasonable and adequate. Movants explain as follows. A. The Proposed Settlement Is Fair, Reasonable And Adequate, And
Should Be Finally Approved “Federal courts naturally favor the settlement of class action litigation.” Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir.1996); see also Armstrong v. Bd. of Sch. Dirs. of Milwaukee, 616 F.2d 305, 313 (7th Cir. 1980), overruled on other grounds, Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998) (“Settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources.”). To finally approve a class action settlement, the Court “must determine whether a proposed decree is lawful, fair, reasonable, and adequate.” E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985) (citing Gautreaux v. Pierce, 690 F.2d 616, 631 (7th Cir. 1982)). In its review, the Court considers the facts “in the light most favorable to the settlement” and evaluates the fairness of the settlement viewing it in its entirety, rather than its component parts. Isby, 75 F.3d at 1199 (quoting Armstrong, 616 F.2d at
3 None of these cases achieved the high claims rates achieved here. See, e.g. Plaintiffs’ Memorandum in Support of Approval of Proposed Settlement, Calvin, No. 06 CV 03086 (N.D. Ill.) (filed Nov. 16, 2006) (as of date of filing for final approval, the claims rate was 15%) (attached as Group Exhibit I at p. 7); Memorandum of Law in Support of Plaintiffs’ and Defendant’s Motion for Final Approval of Settlement and Class Certification, Boone, No. 05 CV 1851 (E.D. Pa. Sept. 23, 2009) (as of date of filing, claims rate was 15%) (attached as Group Exhibit J at p. 16).
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Case: 1:06-cv-00552 Document #: 641 Filed: 02/22/11 Page 16 of 27 PageID #:15733
315 (7th Cir. 1980)). The Seventh Circuit has “admonished [the district courts] ‘to refrain from resolving the merits of the controversy or making a precise determination of the parties’ respective legal rights . . . .’” Id. at 1196-97 (quoting in part E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985), cert. denied, 478 U.S. 1004).
To make its fairness determination, the Court considers the following factors: (1) the strength of plaintiffs’ case compared to the amount of defendants’ settlement offer; (2) an assessment of the likely complexity, length and expense of the litigation; (3) an evaluation of the amount of opposition to settlement among affected parties; (4) the opinion of competent counsel, and; (5) the stage of the proceedings and the amount of discovery completed at the time of settlement. Synfuel Technologies, Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006), quoting Isby, 75 F.3d at 1199.
Applying the foregoing factors here strongly supports approval of the settlement as fair, reasonable and adequate. Most significantly, the approximate expected value of continued litigation to Class Members is within range of the actual settlement, which demonstrates the fairness of the County’s $55 million dollar settlement offer.
1. The Strength Of Plaintiffs’ Case Is Appropriately Balanced with Defendant’s Settlement Offer
Of the factors described above, the most important is the strength of Plaintiffs’ case compared with the Defendant’s settlement offer. Isby, at 75 F.3d at 1199 (“The district court properly recognized that the first factor, the relative strength of plaintiffs’ case on the merits as compared to what the Defendants offer by way of settlement, is the most important consideration.”); see also Armstrong, 616 F.2d at 314 (same). Under the Seventh Circuit’s approach to this factor, the Court must “quantify the net expected value
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of continued litigation to the class.” Synfuel, 463 F.3d at 653, quoting Reynolds v. Beneficial Nat. Bank, 288 F.3d 277, 284 (7th Cir. 2002). To do so, the Court should “estimat[e] the range of possible outcomes and ascrib[e] a probability to each point on the range.” Id. Although “[a] high degree of precision cannot be expected in valuing a litigation,” the Court should determine a “ballpark valuation.” Id.
After years of litigating their respective positions, the parties were well-equipped to assess the settlement value of Plaintiffs’ claims. From Plaintiffs’ perspective, it would have been a losing proposition to continue litigating. Without a settlement, the class members would have had to face the prospect of individual damages trials in order to obtain compensation. That would be a pipe dream for most class members. Somewhere between 60,000 and 70,000 class members have submitted valid claims. If each of those persons instead had to participate in a damages trial, and assuming the Court could try three plaintiffs’ claims per day, we would need a minimum of 20,000 court days, of which there are approximately 252 per year. Assuming the Court had nothing to do but try these cases, it would take much of the rest of the century to complete the trials.4 In other words, settlement was the sensible decision for the Class as a whole.
Moreover, as the Court observed first hand, the cash portion of the fund represents the most that the County could pay in settlement (certainly as a political and practical matter). Even so, the Class is also receiving an assignment of potentially valuable claims against the insurers that refused to provide coverage. The policies provided for $80 million in coverage and the assignment includes claims to damages in
4 Certainly a Court might fashion other solutions to get class members compensated, as by using special masters or entering a liability judgment classwide so that the individual class members could pursue damages actions in multiple courts. Nevertheless, the foregoing example illustrates why a settlement was prudent at this juncture.
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excess of the coverage. Although no one can predict the future, the assignments are valuable and may well result in additional monies beyond the cash portion of the fund being paid to the Class.
Also militating in favor of settlement was the risk of appeal from the forthcoming final judgments. For the reasons set out more fully in Class Counsel Fee Petition pages 9 n.4 and 14, dkt. 637, there was appellate risk on both the Class I and Class II claims, and the state of the County’s financial condition loomed in the background. See also Florence v. Bd. of Chosen Freeholders of County of Burlington, 621 F.3d 296 (3rd Cir. 2010) (dismissing blanket strip search claim); Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc) (same) Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc) (same).
2. Continued Litigation Would Be Lengthy, Complex And Costly If the parties were to continue to litigate this action through individual damage trials, each side would expend considerable time and money in prosecuting and defending their positions. As explained above, it would take almost 80 years of trial time were all the claims to be tried. The costs in attorney and court time would be enormous. Moreover, even with creative solutions to try to ensure that the class members got their day in court, many class members would certainly have to wait several years for compensation, if not longer. By contrast, the proposed Settlement Agreement provides compensation now to all of the Class Members who have submitted timely, valid claims.
3. There Is Virtually No Genuine Opposition To The Settlement Agreement
Given the large size of the class and the number of individual notices that were mailed, it is telling that only seven objections were received. Cf. Isby v. Bayh, 75 F.3d
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1191, 1200 (7th Cir. 1996) (13% of jail conditions class members filed objections to settlement). Of these seven, only five were properly filed with the Court and timely.5 Despite these deficiencies, Counsel has addressed the substance of all of the objections below.
Of these seven, one is filed by a person who requests that 2.5% of the settlement fund be allocated to him personally without any explanation or basis for doing so. See Exhibit E (Niemiec Aff. at Exhibit 9 at pp. 2-4) (Objection filed by Sienky Lallemand). His objection seeks a disproportionate and unfair allocation of the settlement fund.
The remaining objections are no more problematic. For instance, Richard Kearney objects to the fact that Class I men will receive a payment that is less than Class II men, given that all men go through the same strip search procedure regardless of their charges. Id. at Exhibit 9 at p. 5. The difference in payment levels is fair. Unlike Class I men, Class II men had a claim that they should not have been strip searched at all and therefore should not have suffered any intrusion of privacy. It is appropriate to assess their injuries as greater than persons who were allowed to be strip searched.
William T. Sherrod objects that the settlement fund should be allocated in such a manner that persons who were strip searched multiple times during the class period would receive up to five payments. See Exhibit E (Niemiec Aff. at Exhibit 9 at p. 1). While this is one way of allocating the available settlement monies, it is not the only fair method, and the Parties did not believe that it was consistent with how juries would
5 Two objections were not filed with the Court as required by the Settlement Agreement and set forth in the Notice. Exhibit C (Settlement Agreement at ¶ 14(r)); Exhibit H (Notice) at Question 15 (“How do I tell the Court I don’t like the Settlement?”). See also Exhibit E (Niemiec Aff. at Exhibit 9 at 10-14) (Objections filed by Ronald Witt and David Kraybill). Of these two objections, David Kraybill’s objection was also untimely. Rust Consulting received his objection on February 4, 2011, and emailed it to Class Counsel only yesterday.
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assess damages. Persons who were admitted into the jail on multiple occasions are likely to be less sympathetic than a person who was arrested only once, and thus likely to get lower damages. In merely disclosing to the jury that he was strip searched during multiple admissions, a plaintiff would risk lowering his overall award. A claim for a single strip search may result in greater compensation than the total for multiple strip searches. Moreover, the experience at the bellwether trials demonstrated that jurors perceive additional strip searches to be far less injurious than a single strip search. For all of these reasons a single payment sufficiently accommodates persons who were booked multiple times, and is fair.
William Dujka and Ronald Witt object that the amount of the settlement is too little given the abuses that occurred during their strip searches. Id. at Exhibit 9 at p. 6, 10-12. These are the only two individuals out of the entire quarter-million member Class making such an objection. For the reasons explained throughout this Memorandum, the amount of the settlement is fair both in terms of the gross payment to the Class and in terms of the per-class member distribution, and comports with other settlements approved as fair. Moreover, the fact that a class settlement amount is below what a class member might achieve by opting out and proceeding individually is to be expected, and does not demonstrate that the consideration to the class is unfair. Cf. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985) (“The essence of settlement is compromise. Each side gains the benefit of immediate resolution of the litigation and some measure of vindication for its position while foregoing the opportunity to achieve an unmitigated victory.”) (citations omitted). In addition, the substance of Mr. Witt’s objection (which was not filed with the Court) relates to sexual injuries suffered as a
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result of being subjected to a penal swab at the Jail, a particularly invasive procedure formerly part of the Jail’s intake process that was not encompassed by this strip search class action. See Exhibit E (Niemiec Aff. at Exhibit 9 at 12).
Antonio Claiborne objects that money damages are not a sufficient remedy as to him and that the relief provided to him should be expungement of his criminal record or clemency. Id. Exhibit 9 at pp. 7-9. Expungement or clemency is not a remedy that was available to the class and it is not a remedy for which the Defendants had the power to settle. That being said, nothing in this settlement precludes Class Members like Mr. Claiborne from seeking expungement of their records if they qualify to do so.6
Finally, David Kraybill mailed an untimely objection to Rust, which he also failed to file with the Court, in which he (and he alone, out of the quarter-million Class members) objects to the attorney’s fees portion of the Settlement Agreement. Id. at Exhibit 9 at pp. 13-14. Assuming the Court is inclined to overlook the procedural shortcomings, the substance of his objection has been thoroughly addressed in Class Counsel’s Petition for Attorney’s Fees and Costs, which Counsel refers to and incorporates here. Dkt. 637.7 In short, while he believes that Counsel should be “adequately compensated for taking a case like this to trial and for the expense and risk” involved, he believes Counsel’s fees should be lower than the fees we receive when we represented Plaintiffs on an individual basis. See Exhibit E (Niemiec Aff. at Exhibit 9) at
6 Class Counsel has frequently referred individuals, including Class Members in this action, to the Expungement Desk at the Daley Center, which is staffed by volunteers from the Cabrini Green Legal Aid Clinic, to assist individuals in processing the necessary forms to expunge their records. See Exhibit F (Bala Keen Aff. at ¶ 5). 7 Because this objection was not received until after Class Counsel had already filed their Petition for fees and costs, it was not specifically referenced or addressed therein, although, as stated in the text, Counsel stand on their arguments contained in the Petition.
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13. For the reasons discussed extensively in Counsel’s fee petition and the accompanying affidavits, the one-third fee provided for in the Settlement Agreement accurately reflects the market for and the high risk nature of this case. Dkt. 637 at pp. 620. In any event, the fee is in fact less than the 40% contingency that Counsel typically requires to take a case of this nature on an individual basis.
4. Class Counsel Supports This Settlement Agreement Class Counsel’s firm is in an excellent position to evaluate the fairness of the settlement based on more than a decade of hard-won experience representing civil rights plaintiffs. As the Court saw from its supervision of the settlement process, Class Counsel took a hard-line position in negotiations and kept fighting (all the way through trials and an appeal) until we were able to get a fund size which we felt was fair. We rejected offers of $20 million (with a 40% contingency fee) and, later, of $40 million. We also insisted on obtaining an assignment of claims that, after much evaluation (including by hiring expensive coverage counsel), we believed the County was undervaluing. Because the County’s final settlement offer provides significant payments to class members (in line with many other class action settlement) without further delay or risk, while allowing the Class to seek more, Counsel determined that settlement would provide the best benefit for class members, and Counsel supports the settlement.
5. This Settlement Was Negotiated Only After Significant Discovery And Litigation
As recounted in greater detail in Class Counsel’s Petition for Attorney’s Fees, Costs, and Class Member Incentive Bonuses (dkt. 637) the Settlement was obtained only after completing discovery, conducting multiple trials and litigating an appeal. There are more than 600 entries on the docket. Thus, this case is completely on the opposite end of
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the spectrum from those which raise a red flag because they settled early in the game. There can be no serious contention that the Class should have litigated further before settling.
B. The Notice Provided To Class Members Meets Due Process The purpose of a class notice is to provide interested parties notice of the settlement, their right to object and exclude themselves, and enough information about the terms of the settlement so that they can evaluate their options. See Phillips Petroleum Co. v. Shutts, 472 U.S.797, 812 (1985). In this case, the Notice that was provided Class Members met and surpassed the requirements of due process. At the outset, the initial mailing sent to the last known address of 249,599 confirmed and potential class members amply complied with constitutional minimums, but Plaintiffs went to numerous additional efforts to find current addresses for as many individuals as possible. Plaintiffs also directed the claims administrator to research the last known address for all individuals, utilizing LexisNexis and the United States Postal Service’s NCOA address updating service, and then supplemented this information by obtaining parolee addresses from the Illinois Department of Corrections (“IDOC”). See Exhibit E (Niemiec Aff. at ¶ 7-11); Exhibit F (Bala Keen Aff. at ¶ 7-9). In addition, Plaintiffs obtained a list of all persons currently held in the IDOC and directed the Claims Administrator to send notice to incarcerated class members at their IDOC addresses, including explicit instruction on the nuances of correctly marking the envelopes according to the mail rules of each institution. Id. at ¶ 11. The direct notice provided to Class Members was certainly the “best practicable, reasonably calculated under the
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circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Phillips Petroleum Co., 472 U.S. at 812 .
The Notice Plan also included published notice in the Sun Times, Chicago Defender, La Raza (selected to reach Spanish speaking class members) and Prison Legal News (selected to reach incarcerated class members). The Published Notice ran in each of the publications as a quarter-page ad located in the main body of the paper (not the classified sections) in two print cycles. Moreover, the Notice in the Prison Legal News included a printed Claim Form, enabling incarcerated individuals to submit a claim form without needing to rely on the prisons’ mail systems, which tend to suffer from unexpected and potentially lengthy delays. See Exhibit E (Niemiec Aff. at ¶ 18). The Notice was also made available in Spanish and on a designated website. Finally, the Defendant posted the Notice in the Cook County Jail’s RCDC, every division of the Jail, the law library and in several common areas of the Jail. See Exhibit F (Bala Keen Aff. at ¶¶ 12-15). The Parties endorsed the Notice Plan because it is the best practicable means to reach potential class members and would encourage a high rate of claim submissions.
Finally, the high claims rate is good evidence of the effectiveness of the Notice. The Notice Plan achieved the goal of effectively reaching class members and encouraging them to submit claims. The Notice provided individuals with all the information needed to reach an informed decision regarding their rights and the Proposed Settlement Agreement. Both Parties agreed that the provided was the best practicable in consideration of all the factors at issue for this class of individuals.
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C. The Court Should Grant Final Certification of the Three Settlement Classes
Each of the two Proposed Settlement Classes meets the requirements for certification upon settlement and the even more stringent requirements for certification as a litigation class. See April 25, 2007 Order; Dkt. 92. First, the Settlement Classes meet the four prerequisites of Rule 23(a) of numerosity, commonality, typicality and adequacy of representation. The members of the Settlement Classes, 250,000 strong, are so numerous that joinder is impracticable. Likewise, the Settlement Classes satisfy Rule 23(a)(2) because there are common factual and legal questions for the Class Member’s claims. Id. at 8 (courts have repeatedly held that “class actions challenging blanket strip search policies satisfy Rule 23(a)(2)’s commonality requirement”) (citations omitted); see also Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (“A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)”). The requirements of Rule 23(a)(3) are met because the claims or defenses of the representative parties are typical of the claims or defenses of the class. Finally, the representative Class Members and Class Counsel adequately represent the interests of Settlement Class Members. The Settlement Classes also meet the requirements for certification under Rule 23(b)(3) because common questions predominate over questions affecting only individual members and class resolution is superior to individual lawsuits as this Court has already found in the litigation context. Dkt. 92, April 25, 2007 Order at 13-14; see also In re AT & T Mobility Wireless Data Services Sales Litigation, No. 10 cv 2278, 2010 WL 3190108, at *9 (N.D. Ill. Aug. 11, 2010) (applying Rule 23(b)(3) standards for certification of a settlement class).
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Conclusion For all the reasons described above, Plaintiffs respectfully request that the Court finally approve this class action settlement and certify the two Settlement Classes. A proposed Order is attached to the Parties’ Joint Motion for Final Approval of Class Action Settlement as Exhibit 1.

Arthur Loevy Michael Kanovitz Jon Loevy Roshna Bala Keen Samantha Liskow Heather Lewis Donnell LOEVY & LOEVY 312 North May Street Suite 100 Chicago, IL 60607 (312) 243-5900

Respectfully submitted, /s/ Michael Kanovitz

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CERTIFICATE OF SERVICE I, Michael Kanovitz, an attorney, certify that on February 22, 2011, I filed a copy of this Plaintiffs’ Memorandum in Support of the Parties’ Joint Motion for Final Approval of Class Action Settlement via the court’s CM/ECF electronic filing system, and thereby caused a copy to be served to all counsel of record.
/s/ Michael Kanovitz

 
 Order Form (01/200C5) ase: 1:06-cv-00552 Document #: 503 Filed: 12/11/09 Page 1 of 3 PageID #:12060
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Matthew F. Kennelly

Sitting Judge if Other than Assigned Judge

06 C 552

DATE

12/11/2009

Young, et al. vs. Cook County, et al.

DOCKET ENTRY TEXT
The Court issues the following preliminary ruling regarding the pretrial procedures to be followed with regard to the damages trials. Counsel should be prepared to address these points (as well as any other pertinent issues) at the 12/14/09 status hearing.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
The Court has reviewed defendant’s “motion to clarify damages schedule / reset damages trial.” The Court has advanced hearing date on the motion to 12/14/09 at 9:30 a.m., the same date and time as the status hearing previously set.
The Court notes initially that the motion is based on an incorrect premise, namely that the damages trials the Court has set are “in order to ascertain the damages of the class.” Motion ¶ 1. The Court said nothing of the kind. The purpose of the damages trials is to decide the damages of the individual class members whose damages will be tried, to facilitate the entry of a final judgment on less than all claims under Rule 54(b). The Court also notes that its assumption was that these damages trials will involve only plaintiffs who are members of the classes and portions of classes in whose favor liability was determined via the summary judgment ruling. In other words, the Court assumed that damages trials would not involve members of the class in whose favor liability was determined via the recent jury trial, given to the pendency of the interlocutory appeal. The Court is open to reconsidering the latter point and will expect counsel to discuss it at the 12/14/09 hearing.
The Court will hear argument on the motion on 12/14/09 but offers the following preliminary determinations regarding the pretrial procedures to be followed with regard to the damages trials. Counsel should be prepared to address these points (as well as any other pertinent issues) at the 12/14/09 hearing.
1) The Court will set a short and certain date, preferably before the end of 2009, for plaintiffs’ counsel to identify the plaintiffs whose damages cases will be tried (hereafter referred to as “the damages plaintiffs”). The damages plaintiffs should include, absent unusual circumstances, all of the named members of the classes or portions of classes in whose favor liability was determined via the summary judgment ruling. If any members of those classes testified at the recent liability trial, they should also be included among the

06C552 Young, et al. vs. Cook County, et al.

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Case: 1:06-cv-00552 Document #: 503 Filed: 12/11/09 Page 2 of 3 PageID #:12061 STATEMENT
damages plaintiffs, absent unusual circumstances.
2) Within 7 days after their identification, the damages plaintiffs will be required to serve Rule 26(a)(1) disclosures relating to the damages trials.
3) Defendant wishes to, and is entitled to, serve written discovery requests on the damages plaintiffs. That said, there is no reason for defendant to delay preparation of those requests. The Court expects defendants to prepare those requests in advance of the identification of the damages plaintiffs and to serve them on plaintiffs’ counsel 7 days prior to the date on which they are required to identify the damages plaintiffs, so that plaintiffs’ counsel have the requests in hand. The Court will shorten to 7 days the time for the damages plaintiffs to answer the requests. In other words, answers will be due on the same date as the Rule 26(a)(1) disclosures. The damages plaintiffs will be required to serve any objections to the written discovery on the date for identification of the damages plaintiffs; counsel will be required to meet and confer regarding any objections within 2 business days thereafter; and the Court will rule on those objections within 1 business day thereafter, so as not to delay the service of timely answers to the discovery requests.
4) The Court will impose a strict deadline on both sides for the service of document subpoenas on nonparties relating to the damages trials. Counsel are expected to propose an appropriate deadline at the upcoming hearing. The Court will set, and will enforce, strict deadlines on compliance with those subpoenas and will expect the party that serves the subpoena to take diligent and prompt steps to obtain compliance.
5) The defendant’s Rule 26(a)(1) disclosures will be due within 21 days after the plaintiffs’ Rule 26(a)(1) disclosures.
6) The damages plaintiffs’ disclosures pursuant to Fed. R. Civ. P. 26(a)(2)(A) & (B) will be due no later than 28 days after the Rule 26(a)(1) disclosures.
7) The damages plaintiffs will be required to appear for deposition on dates to be scheduled. The Court expects the parties to propose at the 12/14/09 hearing an appropriate deadline for completion of such depositions. The Court intends to exercise strict control over scheduling of deposition dates and will, given the limited issues to be tried, shorten the length of the depositions (the Court expects the parties to make proposals in this regard at the 12/14/09 hearing). The Court likewise intends to shorten the time limits on any other depositions taken by either side relating to the damages trials.
8) The Court will impose a sanction of dismissal on any plaintiff who unjustifiably fails to appear for deposition as directed. Because of the limited time available prior to trial, substitutions of plaintiffs will not be permitted absent unusual circumstances. For this reason, plaintiffs’ counsel are advised to do their best to select plaintiffs who will comply with the discovery requirements that the Court is imposing.
9) The Court also expects the parties to propose at the 12/14/09 hearing an appropriate deadline for completion of any other fact depositions relating the damages trials.
10) The defendant’s disclosures pursuant to Fed. R. Civ. P. 26(a)(2)(A) & (B) will be due no later than 21 days after the plaintiffs’ disclosures pursuant to those Rules.
11) Depositions of experts, if any, must be completed by no later than 3/19/10, in other words, 10 days before the start of the damages trials.

06C552 Young, et al. vs. Cook County, et al.

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Case: 1:06-cv-00552 Document #: 503 Filed: 12/11/09 Page 3 of 3 PageID #:12062 STATEMENT
12) The Court will forego the usual requirements for a final pretrial order and will require the parties to provide only lists of witnesses and exhibits and objections to the same, as well as proposed jury instructions regarding the issues to be tried (preliminary and general instructions may be omitted). Any motions in limine will be due by 3/22/10, in other words, one week before the trial date. Motions in limine will be argued, to the extent necessary, on 3/26/10, the last business day prior to the start of trial.
13) The Court acknowledges that it may not have covered every possible point of pretrial procedure and expects the parties to be prepared to discuss these and any other pretrial issues at the hearing on 12/14/09.

06C552 Young, et al. vs. Cook County, et al.

Page 3 of 3

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

KIM YOUNG, et al., Plaintiffs,
vs. SHERIFF THOMAS DART,
Defendant.

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Case No. 06 C 552

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MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge:
The defendant, Cook County Sheriff Thomas Dart, has moved to stay proceedings in this Court pending his interlocutory appeal of a purported Eleventh Amendment issue, specifically, the Court’s ruling denying his motion for judgment as a matter of law at the recent jury trial. Defendant’s interlocutory appeal is frivolous. Accordingly, the Court denies his motion to stay these proceedings.
Background Plaintiffs, on behalf of two certified classes, sued the defendant for constitutional violations stemming from strip searches performed on incoming detainees at Cook County Jail (CCJ). Some of the plaintiffs’ claims concerned whether any strip search was appropriate; other claims concerned the manner in which strip searches were conducted. The Court granted partial summary judgment in favor of one of the classes and a portion of the other class on the issue of liability. See Young v. County of Cook, 616 F.

Supp. 2d 834 (N.D. Ill. 2009). Defendant’s interlocutory appeal does not concern that ruling. The plaintiffs’ remaining claims were tried to a jury in August 2009 on the issue of liability. The claims that were tried did not involve whether defendant was permitted to conduct a strip search at intake. Rather, the claims considered at the trial all involved the manner of intake strip searches conducted at the CCJ from February 2007 through March 2009.
During the trial, defendants filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. The motion included an argument that plaintiffs’ claims were barred by the Eleventh Amendment to the United States Constitution. See Dkt. No. 415. Specifically, defendants contended that a provision of the Illinois Administrative Code required them to conduct strip searches, thereby transforming county officials into agents of the State of Illinois and conferring Eleventh Amendment immunity on them as state actors. Id. at 11-12. The Court denied that motion in an oral ruling. The jury subsequently found in favor of plaintiffs on each of their claims.
On August 21, 2009, defendants filed a notice of appeal from the Court’s denial of their Rule 50 motion. The notice of appeal referenced only the denial of that particular motion, not any other ruling by the Court.1 Defendants also filed a motion to stay proceedings in this Court during the pendency of their interlocutory appeal. The Court ordered expedited briefing on defendants’ motion to stay.
1The notice of interlocutory appeal makes it clear that defendant is appealing only from the Court’s order denying his judgment as a matter of law at trial, and not from anything relating to the Court’s summary judgment ruling.
2

Discussion An interlocutory appeal on Eleventh Amendment immunity grounds typically requires a stay of further proceedings in the district court. See generally Apostol v. Gallon, 870 F.2d 1335, 1337-40 (7th Cir. 1989). Exceptions exist to the general rule. “[A] notice of appeal may be so baseless that it does not invoke appellate jurisdiction.” Id. at 1339. Thus this Court may decline to stay proceedings if defendants’ interlocutory appeal is frivolous. Id. Frivolousness that would justify denying a motion to stay includes when the decision concerning immunity “is so plainly correct that nothing can be said on the other side.” Id. Additionally, a motion to stay may be denied where defendants “forfeit” the right to a stay or where “they use [a] claim[ ] of immunity in a manipulative fashion.” Id. In the current case, defendants’ interlocutory appeal is frivolous, for at least two reasons. First, defendants forfeited their Eleventh Amendment defense by failing to plead it or to assert it in timely fashion. Second, the defense is plainly lacking in merit, because the trial in this case concerned the manner of the strip searches, not whether defendant was entitled to conduct strip searches. In reaching these conclusions, the Court is cognizant that the Seventh Circuit has instructed district court judges to exercise “restraint” when using their power to find an interlocutory appeal concerning immunity frivolous. Id. 1. Forfeiture Immunity from suit is an affirmative defense. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (qualified immunity); cf. Baxter v. Vigo County Sch. Corp., 26 F.3d 728,
3

734 n.5 (7th Cir. 1994) (defendant bears burden of persuasion on Eleventh Amendment assertion). “[F]ailure to raise [an affirmative] defense in a timely manner will result in a forfeiture.” Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (internal quotation marks omitted).2
Defendant contends that he has not forfeited the Eleventh Amendment defense raised in his Rule 50 motion, which forms the basis for his interlocutory appeal, because it appeared in his answer and affirmative defenses to the third amended complaint. The Court disagrees; that was a different Eleventh Amendment defense. In that answer, defendant asserted that he has “absolute immunity from suit for monetary damages under the Eleventh Amendment . . . because [he was] executing a valid Court Order and therefore [has] judicial immunity.” Answer & Aff. Defs. to Pls.’ 3d Am. Compl. (dkt. no. 154) at 43 ¶ 6. Execution of a court order is not the Eleventh Amendment defense that defendant later asserted in his Rule 50 motion and that forms the basis for his interlocutory appeal. Rather, the Rule 50 motion was expressly premised on the purported application of a provision of the Illinois Administrative Code. In short, the Eleventh Amendment defense that defendant pleaded and the one that he asserted for the first time in his Rule 50 motion are not the same.
Defendant did reference the Illinois Administrative Code in another affirmative defense responding to the third amended complaint. Specifically, defendant asserted that the Illinois Administrative Code “specifically mandates that the Sheriff conduct strip
2 The Eleventh Amendment does not curtail federal courts’ subject matter jurisdiction. See, e.g., Endres v. Indiana State Police, 349 F.3d 922, 925 (7th Cir. 2003).
4

searches as part of the admission of detainees. 20 Ill. Adm. Code 701.40 (2006). As such, these Defendants cannot be held liable for enacting or supervising programs required under state law.” Answer & Aff. Defs. to Pls.’ 3d Am. Compl. (dkt. no. 154) at 44 ¶ 8. Defendant did not, however, identify this as implicating the Eleventh Amendment or any other sort of immunity.3
Even if defendant had asserted in his pleadings the Eleventh Amendment defense on which he now bases his interlocutory appeal, he forfeited the right to stay these proceedings, because he did not seek a ruling on the defense before trial. See Apostol, 870 F.2d at 1339. In this respect, this case is different from Bullock v. Dart, No. 04 C 1051 (N.D. Ill.), which defendant cites in his motion to stay. Defendant correctly notes that Judge Elaine Bucklo concluded that an interlocutory appeal based on an Eleventh Amendment defense in that case was not frivolous. The Bullock defendants, however, raised the issue of Eleventh Amendment immunity in a summary judgment motion and began pursuing their interlocutory appeal as soon as Judge Bucklo denied their motion for reconsideration of her summary judgment decision on that issue. The defendant in the present case acknowledges these facts about Bullock in his motion to stay. See Defs.’ Mot. to Stay Proceedings ¶¶ 6-7. Unlike Bullock, the defendant in this case acted in the least expeditious manner possible: he failed to plead the defense he now seeks to assert; he failed to bring it before the Court in a dispositive motion prior to trial; and he raised it for the first time near the end of a jury
3Defendants’ answer to the fifth amended complaint, filed on July 14, 2009, contains the same defenses as the answer to the third amended complaint pertaining to the Eleventh Amendment and the Illinois Administrative Code. See Answer & Aff. Defs. to Pls.’ 5th Am. Compl. (dkt. no. 350) at 47 ¶¶ 6 & 8,
5

trial. Defendant’s own motion demonstrates his tardiness in raising the Eleventh
Amendment issue. He contends that a stay is necessary “[t]o obtain the full benefits of this appeal, including immunity from suit under the Eleventh Amendment.” Defs.’ Mot. to Stay Proceedings ¶ 5. If defendant wanted the “full benefit” of an Eleventh Amendment defense, he could have and should have raised the issue in a motion to dismiss or, at the absolute latest, in a motion for summary judgment. Instead, he sat on the issue – or did not think of its existence – during three years of discovery and extensive motion practice. He waited until nearly two weeks into a jury trial on liability to raise it for the first time.
It bears mentioning that defendant did assert yet another Eleventh Amendment defense at an earlier point in the case. After the Court ruled on the parties’ summary judgment motions in late February 2009 (after the case had been pending for about three years), defendant filed a motion for an interlocutory appeal under 28 U.S.C. § 1292(b). See Defendants’ Joint Mot. for Interloc. Appeal (dkt. no. 281). The motion largely focused on the merits of the Court’s summary judgment ruling. Defendant also stated, however, that he had “raised Eleventh Amendment immunity as an affirmative defense. The grounds for Eleventh Amendment immunity are numerous. Defendants’ search process is mandated by state law and thus defendants were acting pursuant to state law.” Id. at 10. This argument, however, centered on the proposition that the CCJ houses state prisoners in addition to local detainees. See id. Defendant also stated that “the issue of whether the defendants acted as an ‘arm of the state’ in conducting visual strip searches where state law mandates a ‘thorough’ search is inextricably
6

intertwined” (he did not say what it is intertwined with). Id. at 9. But he cited nothing to support the proposition that state law mandated a “thorough” search, leaving this entirely to the imagination. In any event, the purported requirement for a thorough search is not contained in the Illinois Administrative Code provision that defendant cited in his Rule 50 motion and that is the basis for his current interlocutory appeal. In other words, the purported Eleventh Amendment defense that defendant tried to assert in his motion for interlocutory appeal back in March 2009 is not the Eleventh Amendment defense he now raises.
In any event, defendant’s assertion of the Eleventh Amendment in his March 2009 motion for an interlocutory appeal of the summary judgment ruling was utterly frivolous, because defendant had not even hinted at an Eleventh Amendment issue during the extensive summary judgment briefing. When the Court called this glaring omission to the attention of defense counsel at the hearing on the motion, held on April 1, 2009, counsel conceded that defendant had not raised the purported Eleventh Amendment defense as a basis for summary judgment. The Court found that aspect of the March 2009 motion for interlocutory appeal frivolous, and defendant did not pursue the matter further.
To summarize, defendant’s current interlocutory appeal based on the Eleventh Amendment defense raised in his Rule 50 motion is frivolous because defendant did not plead it, did not raise it in a motion for summary judgment, and only sought to raise it near the end of a two-week jury trial. Under these circumstances, defendant has
7

forfeited the defense.4 2. Nature of plaintiffs’ claims and the Eleventh Amendment
Even had the defendant had not forfeited his contention that he was a state actor because Illinois law required him to perform strip searches, his interlocutory appeal on that issue would still be frivolous. The defense is utterly lacking in merit with respect to the claims that were decided at the jury trial.
“The Eleventh Amendment does not apply to suits against counties or other local government entities,” including county sheriffs in Illinois. Richman v. Sheahan, 270 F.3d 430, 439 (7th Cir. 2001). An exception to this rule exists when a county sheriff acts “as an arm of the state.” Id. “In determining whether the sheriff is an agent of Illinois government when performing particular functions, [courts] have looked to the degree of control exercised by Illinois over the conduct at issue and whether the Eleventh Amendment policy of avoiding interference with state (as opposed to county) policy is offended by the lawsuit.” Id.
In his Rule 50 motion, defendant relied upon a section of the Illinois Administrative Code pertaining to jail procedures that states:
701.40 Admission Procedures . . . f) Strip Search
1) A strip search shall be performed in an area that ensures privacy and dignity of the individual. The individual shall not be exposed to the view of others who are not specifically involved in the process.
4 Defendant does not contend that the defense is non-forfeitable. 8

2) Strip searches shall be conducted by a person of the same sex. 3) All personal clothing shall be carefully searched for contraband. 4) The probing of body cavities may not be done except where there is reasonable suspicion of contraband. Intrusive searches may only be conducted:
A) By a medically trained person who is not a detainee, for example, a physician, physician's assistant, registered nurse, licensed practical nurse, or paramedic; and B) In a private location under sanitary conditions. 20 Ill. Admin. Code 701.40(f). Assuming this regulation, as defendant contends, requires a strip search – as opposed to prescribing how a strip search, if done, should be conducted – it does not provide an Eleventh Amendment defense to the claims that were tried before the jury and that were the subject of defendant’s Rule 50 motion. At the trial, the plaintiffs never contested defendant’s right to strip search them upon intake to the CCJ. To the contrary, the plaintiffs admitted during their testimony that it was appropriate to conduct a strip search, and plaintiffs’ counsel so stated to the jury a number of times. Rather, plaintiffs’ claims that were tried to the jury involved the manner of the strip searches that defendant conducted on intake. Nothing in the Illinois administrative regulation quoted above required defendants to search detainees in the manner plaintiffs alleged at trial – nor does defendant so contend. As a result, compliance with the regulation was not and could not have been a defense to plaintiffs’ claim that were tried to the jury. Defendant plainly was not acting as an agent of the State of Illinois for the conduct that was the subject of the trial and the Rule 50 motion. The State exercised
9

no control over the conduct found by the jury, specifically, strip searches performed without privacy, with the subjects of the search exposed to the view of others not involved in the process. And the Eleventh Amendment’s policy of avoiding interference with state (as opposed to county) policy is not offended by a suit that could not have succeeded had defendant actually followed the State regulation on which he belatedly sought to rely.
Conclusion For the reasons stated above, the Court concludes that defendant’s interlocutory appeal of the denial of his Rule 50 motion is frivolous and therefore denies his motion to stay proceedings in this Court pending that appeal [# 434].

Date: September 15, 2009

________________________________ MATTHEW F. KENNELLY United States District Judge

10

 
 Order Form (01/200C5) ase: 1:06-cv-00552 Document #: 495 Filed: 11/17/09 Page 1 of 5 PageID #:12036
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Matthew F. Kennelly 06 C 552

Sitting Judge if Other than Assigned Judge
DATE
Mercado vs. Dart

11/17/2009

DOCKET ENTRY TEXT
For the reasons stated below, the Court denies defendant’s motion for judgment as a matter of law or for a new trial [# 470]. The Court directs the Clerk to terminate motions 415 and 436, upon which the Court previously ruled.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
A jury found in favor of the plaintiffs as to liability in this class action. The defendant, Cook County Sheriff Thomas Dart, has moved for judgment as a matter of law or for a new trial.
1. U.S. Department of Justice report
The Court admitted pursuant to Federal Rule of Evidence 803(8) an excerpt of a report by the U.S. Department of Justice (USDOJ) issued to the Sheriff pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997a. The Sheriff argues that the report contained double-hearsay, it consisted of opinions and conclusions, and it was unfairly prejudicial, in part due to its purportedly late identification by plaintiffs. This matter was fully briefed as a part of a pretrial motion in limine by Dart on which the Court heard extensive argument and made a detailed ruling. See 7/29/09 Tr. 42-52.
The Court deals with Dart’s timeliness point first. Plaintiffs persuasively argued in the motion in limine briefing that it was Dart who should have produced the report in discovery but failed to do so. Plaintiffs discovered it on their own and identified it as a possible exhibit in reasonably prompt fashion after discovering it. Dart has identified no real prejudice arising from the late disclosure. Though he contends that the information in the report could not be verified, the report itself contained an offer by USDOJ to provide information that would enable Dart to identify particular incidents referenced in the part of the report in question.
The Court correctly ruled that the report qualified for admission under Rule 803(8). In the language of that Rule, the report amounted to “factual findings resulting from an investigation made pursuant to authority granted by law.” Fed. R. Evid. 803(8). See, e.g., Palo v. Dallas County, No. 3:05-CV-0527-D, 2007 WL 2140590, at *8 (N.D. Tex. 2007); R.G. v. Koller, 415 F. Supp. 2d 1129, 1133 n.1 (D. Haw. 2006); McKnight

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v. District of Columbia, 412 F. Supp. 2d 127, 133 n.7 (D.D.C. 2006) (all admitting similar reports under Rule 803(8)). Dart argued prior to trial, and argues now, that the sources of information indicated lack of trustworthiness, but that argument was unpersuasive. Dart’s argument along these lines may have implicated the appropriate weight to be given the report, but it did not affect the report’s admissibility. The same is true of Dart’s double-hearsay argument. See generally Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994); Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1309-10 (5th Cir. 1991); McClure v. Mexia, 750 F.2d 396, 399-400 (5th Cir. 1985). As indicated above, Dart had all the tools needed to attempt to refute the report if he wished to do so, and he had both the ability and the opportunity to argue its weight before the jury.

Dart’s objection also suggests that the Court should have excluded the report under Federal Rule of Evidence 403 as unfairly prejudicial. The Court is unpersuaded that the balancing required under Rule 403 favors exclusion. Before evidence may be excluded under that rule, its probative value must be “substantially outweighed” by the danger of unfair prejudice (etc). Fed. R. Evid. 403 (emphasis added). Such was not the case here.

Finally, and in any event, in the overall context of the trial Dart suffered no appreciable harm from the admission of the USDOJ report. The incidents described in the report were far less specific and detailed than those discussed by the nearly twenty detainees who testified during the trial. The jury’s determination regarding what happened during intake strip searches largely boiled down to a determination of whether to believe those witnesses. The particular incidents referenced in the USDOJ report paled by comparison.

The Court also notes that Dart himself offered, and the Court admitted, reports by Illinois authorities regarding their inspections of the Cook County Jail. These reports were admitted on the same basis as the USDOJ report. The USDOJ report was no less admissible than the state authorities’ reports.

2. References to the L3 body scanning machine

Defendant says that the Court excluded reference to the Jail’s use of a body scanning machine. The Court agrees with plaintiffs that defendant has mischaracterized the record as well as the Court’s ruling.

At the final pretrial conference, the Court became aware that in or around March 2009, the Cook County Jail purportedly had begun to use a body scanning machine to examine male inmates at intake, allegedly in lieu of strip searches. Plaintiffs objected to the admission of this evidence at trial primarily on the ground that they had not been advised until late June 2009 (about six weeks before trial) of a policy change that supposedly had taken place more than three months earlier and that, one could reasonably infer, had been decided upon even before that. See July 27, 2009 Tr. 58-61. Dart did not dispute that his counsel first advised plaintiffs’ counsel about the change in policy in June 2009, three months after it supposedly went into effect. Id. 63; see also id. 60-61. As a result, plaintiffs argued, they had been completely foreclosed from attempting to determine whether the policy was actually being enforced and whether strip searches were still occurring. Id. 64.

Because plaintiffs were hamstrung in responding to the claimed policy change, the Court ruled that the liability trial would cover only the period through March 18, 2009, the date on which the change purportedly took effect. Id. 64. This made the alleged policy change effectively immaterial and irrelevant for purposes of the trial.

Contrary to Dart’s argument in his post-trial motion, Dart himself injected into the trial the use of the body scanning machine for searches of male detainees. See Pls.’ Resp. to Def.’s Mot. for Judg. at 9 (citing trial

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transcript). The Court allowed a good deal of this evidence to be admitted. Dart contends that the Court “refused” what Dart characterizes as his “attempt[ ] to explain why the L3 was being used” via witness Dan Brown. Def.’s Mot. for Judg. at 6 (“Through Dan Brown, the Sheriff attempted to explain why the L3 was being used. The Court refused. This ruling prevented a number of issues from being discussed.”). This, to be charitable, is revisionist history. During Brown’s examination, Dart introduced, without objection or adverse ruling, a good deal of evidence regarding an alleged “pilot project” relating to the L3 scanning machine. Tr. Vol. V 1169-71. Plaintiffs’ counsel objected when the testimony reached a point where it appeared it might run afoul of the Court’s pretrial ruling barring evidence regarding the claimed March 2009 policy change. Id. 1172. After hearing extensive argument outside the jury’s presence, the following interchange took place between the Court and Dart’s counsel:

THE COURT: So what additional are you planning to do at this point regarding with [sic] this witness regarding the subject of this body scanning machine that is in these pictures and so on?

MR. CATANIA: This one, nothing further. We have another one coming up. That is the female’s body scan.

Id. 1180-81 (emphasis added). Plaintiffs’ counsel advised that he did not object to introduction of evidence regarding use of a body scanning machine for searches of female detainees. Id. 1181.

In short, the contemporaneous comments of Dart’s own counsel at the time of the Court’s ruling put the lie to Dart’s current argument that the Court “refused” to allow witness Brown to explain further. Rather, Dart’s counsel said that he did not have further questions for Brown on the topic.

Following this discussion, the Court determined that to avoid running afoul of the pretrial ruling concerning the claimed policy change, no further evidence regarding use of a body scanning machine for searches of male detainees would be introduced “until I have an opportunity to address this further.” Id. 1183-84. At the start of the next day of trial, after hearing further argument, the Court stated that “I don’t want there to be any further questions or answers that even by implication talk about a change in procedures in March of 2009 . . . .” Id., Vol. VI 1306-07. The Court advised both sides that “if you think that there’s something along those lines that you need to get in, on either side, you need to front it with me first at a sidebar before it is asked of a witness and before you ask a question that I conclude after the fact is reasonably likely to draw testimony like that out of a witness’ mouth.” Id. 1308. After this, Dart never once asked the Court to introduce further evidence regarding use of the L3 scanning machine. In short, Dart has forfeited any argument regarding introduction of further evidence about the L3 machine, and even if he had not done so, the argument is without merit, because he was offered an opportunity to advise the Court about any further evidence on the topic he wished to offer, but never took that opportunity.

3. Jury instructions

In his motion for new trial, Dart “adopt[ed] and incorporate[d] by reference all objections made to Plaintiffs’ tendered instructions as stated in the jury instruction conference.” Def.’s Mot. for Judg. at 6. This onesentence argument forfeits the issue because it fails to develop whatever points Dart was making. See, e.g., White Eagle Co-op. Ass’n v. Conner, 553 F.3d 467, 476 n.6 (7th Cir. 2009) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived . . . .”).

In any event, the sole objection that Dart pressed involved whether the Court should give the jury a list of

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factors to be considered in deciding plaintiffs’ due process and equal protection claims. See Trial Tr. 189091 (discussing defense comments on instructions). Indeed, that is the only instruction that Dart discussed in his reply brief on the current motion after plaintiffs made their argument about forfeiture. See Def.’s Reply at 10. The Court declined to give a list of factors because it found them incomplete and, in part, argumentative, a ruling that the Court continues to believe was correct. In any event, the Court specifically permitted counsel to discuss these or any other factors during closing argument. Trial Tr. 1890.

Dart also complains that the instructions omitted or downplayed the factor of jail security. The Court disagrees. The instructions made it clear that jail security was “an important governmental objective and a legitimate governmental purpose.” See, e.g., Jury Instructions 14.

4. Weight and sufficiency of the evidence

Dart argues that the jury’s verdict on each of the claims was against the manifest weight of the evidence. A court considering a motion for new trial may not set aside the jury's verdict “if a reasonable basis exists in the record to support the verdict, viewing the evidence in the light most favorable to the prevailing party, and leaving issues of credibility and weight of the evidence to the jury.” Kapelanski v. Johnson, 390 F.3d 525, 520 (7th Cir. 2004); see also, Wipf v. Kowalski, 519 F.3d 380, 384 (7th Cir. 2008).

In their argument, Dart repeatedly mischaracterizes plaintiffs’ claims that were tried to the jury. As was made abundantly clear on numerous occasions, plaintiffs did not challenge the fact of a strip search; rather they challenged the manner in which Sheriff’s personnel conducted the search. In its final instructions, the Court described the parties’ contentions as follows:

The plaintiffs contend that upon intake to the Cook County Jail, they were subjected to searches that were conducted in an inhumane and unreasonable manner, and that they were inappropriately subjected to harsher searches than women.

The defendant contends that searches were conducted in an appropriate manner and for the purpose of safety and security at the Jail. The defendant also contends that any differential treatment of men and women was justified.

Jury Instructions 11. Plaintiffs’ equal protection claim concerned differences in which men and women were searched on intake; their due process claim required them to prove that “[s]trip searches were done in a manner that was not rationally related to a legitimate non-punitive governmental purpose, or the searches were done in a manner that appears excessive in relation to that purpose”; and their Fourth Amendment claim required them to prove that they “were searched in an unreasonable manner.” Jury Instructions 15-17.

The jury’s decision on each of the claims largely boiled down to a credibility contest, as the Court has discussed. The plaintiffs’ witnesses all testified that they were strip searched and body cavity searched in a group, shoulder to shoulder, with no privacy protection. The jury was entitled to believe these witnesses’ testimony over that of the several Sheriff’s personnel who testified in contrary fashion. In addition, enough of the plaintiffs’ witnesses testified that they were subjected to degrading comments and treatment that the jury was entitled to find that this, like the practice of strip searching and body cavity searching new detainees in a group without privacy, amounted to a policy of the Sheriff. Moreover, Dart has cited no case that holds that group strip searches conducted in this manner on pretrial detainees are per se legal (indeed the law is to the contrary, see Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009)), or that suggests that a jury finding of liability in this situation is against the manifest weight of the evidence. In addition, Dart’s arguments that

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certain elements of what plaintiffs claimed are not illegal or improper standing alone misses the point; the jury properly considered the totality of the circumstances, not bits of evidence considered in isolation. In sum, no new trial is required, nor are defendants entitled to judgment as a matter of law.
As part of their “manifest weight” argument, Dart challenges additional evidentiary rulings that the Court made. He advances no reason why any of these rulings were incorrect, let alone prejudicial in a way that would require a new trial.
- First, Dart’s counsel never offered any decent reason why the fact that a detainee had had a bond hearing had anything to do with the proper manner of an intake strip search. In any event, Dart managed to get in, on several occasions, evidence that detainees had come from the court system before the intake search, and he was not precluded from arguing that this evidence might show that the plaintiffs’ witnesses were mistaken or lying about what happened to them.
- Second, the nature of the testifying plaintiffs’ charges had no bearing on how they were searched, as Dart’s witnesses made it clear that all detainees are searched the same way, irrespective of the charges against them. And as plaintiffs point out, Dart was able to introduce before the jury the fact that the Jail housed persons accused of serious crimes – something that would have been obvious to the jury in any event.
- Third, Dart was not prejudiced by the inability to introduce specific instances in which contraband was found. Dart was given the opportunity to articulate how this impacted the manner of the search as challenged by plaintiffs (as opposed to the fact of the search), and he could offer nothing. And in any event, Dart was able to introduce a number of specific instances in which contraband was found, so even if the ruling was wrong, Dart was not unfairly prejudiced in a way that would require a new trial.
- Fourth, Dart did not object to testimony by certain plaintiffs about their feelings of humiliation, so he has forfeited that point. The Court also rejects Dart’s remaining evidentiary arguments for the reasons that formed the basis of the Court’s rulings before and during the trial.
Finally, the Court rejects Dart’s argument that he is entitled to judgment as a matter of law on plaintiffs’ equal protection claim based on the differential treatment between male and female detainees in intake searches. His argument essentially consists of a request that the Court reweigh the evidence, see Def.’s Mot. for Judg. 14-15, which is not the standard for determining a motion for judgment as a matter of law. See Filipovich v. K&R Express Sys., Inc., 391 F.3d 859, 963 (7th Cir. 2004). It is beyond question that the Sheriff treated male and female detainees differently in searching them at intake during the relevant period, and there was more than sufficient evidence supporting a finding that the differences were not justified under the standard that Dart agreed applies to equal protection claims.

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In the
United States Court of Appeals
For the Seventh Circuit

No. 09-3092 LEE MERCADO, et al.,
v.

Plaintiffs-Appellees,

THOMAS J. DART, Sheriff of Cook County, Illinois, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 06 C 552—Matthew F. Kennelly, Judge.
ARGUED APRIL 5, 2010—DECIDED APRIL 28, 2010

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. A class of persons detailed at the Cook County Jail contends in this suit under 42 U.S.C. §1983 that the Sheriff of Cook County (who runs the Jail), and his staff, have subjected them to needlessly humiliating strip searches (including body-cavity searches). Plaintiffs have other contentions as well, and the district judge has certified subclasses to pursue dif-

CaCsea:s1e::0C06a9-sc-e3v:0-0090925-35029D2ocumDeonctu:m#0:e06n70t1:0133F67il4e3d2:F70il4e/d2:8F0/1i4le0/2dP8: a/02g50e/1220/o2f01P30aPgaegsPe:aI1Dg3e#s::1133693

2

No. 09-3092

ferent claims. The current appeal, by the Sheriff (other defendants have not joined this appeal), concerns only searches after February 2007 of detainees when they first arrive at the Jail.
The district judge concluded that, because the class’s claims arise from the manner rather than the fact of these searches, the holding of Bell v. Wolfish, 441 U.S. 520, 558–62 (1979), does not vindicate the Sheriff’s position. A jury trial was held. At the close of the proofs, the Sheriff filed a motion for judgment as a matter of law. Fed. R. Civ. P. 50. He argued that Illinois requires jailers to conduct strip searches and that, when complying with this rule, a sheriff or other custodian is part of “the state” for the purpose of the doctrine of state sovereign immunity recognized in Hans v. Louisiana, 134 U.S. 1 (1890).
The parties call this “eleventh amendment immunity,” which is triply inaccurate—first because Hans did not interpret the eleventh amendment, whose text is limited to diversity suits; second because the eleventh amendment limits the jurisdiction of federal courts rather than establishing an immunity, see Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998); Ruehman v. Sheahan, 34 F.3d 525, 527 (7th Cir. 1994); and third because a state (including a state officer sued in an official capacity) is not a “person” for the purpose of §1983. Will v. Michigan Department of State Police, 491 U.S. 58 (1989). That statutory rule makes it unnecessary and inappropriate to consider what limits the eleventh amendment would create. Lapides v. University System of Georgia, 535 U.S. 613, 617–18 (2002); see also Arizonans for Official English v. Arizona, 520 U.S. 43,

CaCsea:s1e::0C06a9-sc-e3v:0-0090925-35029D2ocumDeonctu:m#0:e06n70t1:0133F67il4e3d2:F70il4e/d2:8F0/1i4le0/2dP8: a/02g50e/1230/o2f01P30aPgaegsPe:aI1Dg3e#s::1133694

No. 09-3092

3

69 (1997). For reasons discussed below, however, it does not matter whether “eleventh amendment immunity” is a useful shorthand for the Sheriff’s position.
The district judge observed that the theory behind the Rule 50 motion was being raised for the first time even though the suit had been pending for three years. The judge deemed the contention forfeited and submitted the case to the jury, which returned a verdict in favor of the class on liability. Because the trial had been bifurcated, the next stage was the presentation of evidence about damages. But, before that phase could begin, the Sheriff filed a notice of appeal, contending that the rejection of his theory is immediately appealable under Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).
Metcalf & Eddy applies to sovereign immunity the approach to interlocutory appeals developed by Mitchell v. Forsyth, 472 U.S. 511, 525–30 (1985), for situations in which a public official asserts an absolute or qualified immunity. We assume (without deciding) that the Supreme Court would extend this understanding of the collateral-order doctrine, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), to an appeal by a state official who contends that the definition of the word “person” in §1983 means that a suit is untenable—though that extension of Mitchell would bring the doctrine awfully close to authorizing interlocutory review of the merits. (Sovereign immunity does not apply because §5 of the fourteenth amendment empowers Congress to subject states to suits for violations of that amendment.

CaCsea:s1e::0C06a9-sc-e3v:0-0090925-35029D2ocumDeonctu:m#0:e06n70t1:0133F67il4e3d2:F70il4e/d2:8F0/1i4le0/2dP8: a/02g50e/1240/o2f01P30aPgaegsPe:aI1Dg3e#s::1133695

4

No. 09-3092

See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The class contends that the Sheriff violated the fourteenth amendment, directly and via its incorporation of the fourth amendment. So Congress could authorize a suit such as this against a state, though Quern v. Jordan, 440 U.S. 332 (1979), holds that §1983 does not do so.) Even on the assumption that Mitchell applies to appeals of this kind, however, the Sheriff’s appeal must be dismissed for want of jurisdiction.
Like any other application of the collateral-order doctrine, Mitchell depends on characterizing the decision under review as “final,” because Mitchell interprets 28 U.S.C. §1291, a statute that makes finality essential to appellate jurisdiction. Mitchell rests on the view that, as a practical matter, an order declining to dismiss a complaint, or denying a motion for summary judgment, finally resolves the defendant’s assertion of a “right not to be tried”—for an immunity (unlike a defense on the merits) confers an entitlement to be free of the judicial process as well as an entitlement to avoid an adverse judgment. An order rejecting a claim of immunity is final in the two senses that matter to Mitchell and its successors: it represents the district court’s definitive resolution, and it subjects the defendant to the judicial process, with all of the costs that discovery and trial produce. When a district court postpones resolution until it has received additional submissions from the litigants, it has not made a decision that is “final” in Mitchell’s sense. See Khorrami v. Rolince, 539 F.3d 782, 786–87 (7th Cir. 2008). And when the defendant’s contention does not invoke a “right not to be tried,” the foundation for an interlocutory appeal is missing.

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To date, the Supreme Court has treated only two kinds of orders as “final” for the purpose of an immunity appeal: denial of a motion to dismiss the complaint and denial of a motion for summary judgment. See generally Behrens v. Pelletier, 516 U.S. 299, 305–11 (1996). These two orders often are the outcome of focused engagements after full briefing; each represents the end of a discrete stage in the litigation, during which the legal issue has crystallized and been resolved as a matter of law. Oral denial of a mid-trial motion under Rule 50, by contrast, is not final by that standard. It is possible to see how an order denying a motion for summary judgment can be called “final” for some purposes even though the judge has allowed the suit to proceed; but a mid-trial ruling is not “final” for any purpose. It is a step on the way to a verdict. And a mid-trial motion under Rule 50 does not assert a “right not to be tried” or even a “right to be free of costly discovery”; it asserts a right to win (that’s why it is called a “motion for judgment as a matter of law”). Discovery and trial have occurred by the time lawyers start making Rule 50 motions. A judge’s oral statement allowing the trial to proceed may presage a final decision (judgment on the verdict) but is not itself a final decision.
It is hard to imagine that the Justices have authorized public officials to bring trials to a halt and disband the jury while a pre-verdict appeal proceeds. As a practical matter that would give every public official a right to a mistrial in every §1983 suit that seemed to be going the plaintiff’s way, because once a trial stops jurors are likely to forget the evidence, to come across information

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they are not supposed to read, to discuss the trial with friends and relatives, or all three. Appellate delay would compel the trial to start over with a new jury. Although a district judge is entitled to certify that an appeal is frivolous and proceed with the litigation, see Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), the need for this procedure (and for the court of appeals to consider whether to stay the trial notwithstanding an Apostol certification) would throw a monkey wrench into the proceedings. And at a second trial the public official could force still another mistrial, because Behrens holds that there is no numerical limit on the number of permissible interlocutory appeals in a single case. The only requirement is that each order sought to be appealed be “final” under Mitchell.
Thus both formal reasons (a mid-trial order is not “final” and does not concern a “right not to be tried”) and practical ones (the need to prevent defendants from thwarting the completion of ongoing trials and disrupting the orderly management of litigation) lead us to conclude that a district judge’s oral statement denying a mid-trial Rule 50 motion is not appealable as a “collateral order” under §1291.
Should bifurcated trials be treated differently? The Sheriff did not file his appeal until the jury had returned its verdict on liability. Perhaps one could say that the Sheriff was asserting a “right not to be tried” on the damages phase of the litigation. Attaching dispositive significance to the fact that the district judge chose to bifurcate the trial might turn what is supposed to be an

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economizing measure (the liability phase is easier to manage if damages evidence is postponed) into an occasion for a prolonged interruption. But just in case the Justices should conclude that there is a difference between a mid-trial Rule 50 decision in a unitary trial and a mid-trial Rule 50 decision in a bifurcated trial, we add that this appeal must be dismissed anyway, because it is frivolous.
The district judge thought the appeal frivolous because the Sheriff forfeited this theory of immunity by raising it for the first time at the end of trial. (Earlier he had raised other theories related to sovereign immunity, but this one was a novelty in the litigation.) The judge was right to find a forfeiture, though this does not necessarily render the appeal frivolous. Appellate courts sometimes relieve the parties of forfeitures, especially when the litigation is against a public official in a representative rather than a personal capacity. See, e.g., Day v. McDonough, 547 U.S. 198 (2006); Granberry v. Greer, 481 U.S. 129 (1987); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–67 (1945); Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, No. 08-3183 (7th Cir. Apr. 22, 2010) (en banc). But this appeal is substantively frivolous. It is nothing but a delaying tactic and deserves to be swiftly squelched. Cf. Abney v. United States, 431 U.S. 651, 662 n.8 (1977).
The Sheriff of Cook County, a local official, is not “the state” for the purpose of either Illinois or federal law, and therefore the Sheriff is a “person” as §1983 uses that word. (City and county officials also are not “states” for

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the purpose of the eleventh amendment and related doctrines of sovereign immunity, see Northern Insurance Co. v. Chatham County, 547 U.S. 189, 193–94 (2006); Lincoln County v. Luning, 133 U.S. 529, 530 (1890)—though, as we have said already, only the definition of “person” matters to this suit.) The Sheriff’s contrary argument proceeds in two steps: first, he contends that Illinois law requires all sheriffs to conduct strip searches of all inmates arriving at county jails; second, he maintains that any local official whose conduct is dictated by state law is “the state” to the extent of that obligation. It follows, the Sheriff concludes, that he is not a “person” under Will (or, in his own language, that he has “eleventh amendment immunity”). Neither premise of this syllogism is sound.
1. The state law on which the Sheriff relies is 20 Ill. Admin. Code §701.40(f), a regulation that specifies procedures for admissions to county jails. It provides:
1) A strip search shall be performed in an area that ensures privacy and dignity of the individual. The individual shall not be exposed to the view of others who are not specifically involved in the process.
2) Strip searches shall be conducted by a person of the same sex.
3) All personal clothing shall be carefully searched for contraband.
4) The probing of body cavities may not be done except where there is reasonable suspicion of

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contraband. Intrusive searches may only be conducted:
A) By a medically trained person who is not a detainee, for example, a physician, physician’s assistant, registered nurse, licensed practical nurse, or paramedic; and
B) In a private location under sanitary conditions.
The Sheriff reads this regulation as if it said “[a] strip search shall be performed” and the sentence stopped there. Plaintiffs, by contrast, read the language as a requirement that strip searches, if performed, “shall be performed in an area that ensures privacy and dignity” (and so on). In other words, the Sheriff treats the “shall” in this construction as compelling a strip search, while the plaintiffs treat it as compelling the preservation of dignity.
Either reading is possible, because “shall” is a notoriously slippery word. See, e.g., Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432–33 & n.9 (1995). One reason to think that the Sheriff’s reading is sensible is subsection (b), which says: “Detainees shall be given an immediate frisk search.” This uses “shall” in the same way that the Sheriff thinks that the word works in subsection (f). But if subsection (f) directs the Sheriff to conduct a strip search of every newly admitted detainee, it also directs the Sheriff to conduct each search in a dignified manner, and to refrain from conducting a body-cavity search “except where there is reasonable suspicion of contraband”.

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Plaintiffs have not contended in this suit that the Jail’s practice of conducting strip searches of detainees first entering the jail violates either the federal Constitution or Illinois law. Rather the plaintiffs contend, and the jury found, that the manner of the search is unreasonable and thus violates the fourth amendment as well as §701.40(f). No matter how favorably to the Sheriff subsection (f) is read, it does not compel him or his staff to perform any of the acts—such as having large numbers of detainees drop their pants simultaneously to raucous hooting and taunts from guards of both sexes—that have led to this litigation and the jury’s verdict. And because no plausible understanding of subsection (f) treats it as authorizing, let alone commanding, the challenged practices, the major premise of the Sheriff’s argument has not been established. (We assume for this purpose that the evidence supports the class’s view of matters; an interlocutory appeal under Mitchell does not authorize a court of appeals to resolve factual disputes. See Johnson v. Jones, 515 U.S. 304 (1995).)
2. The minor premise also is wrong. The proposition that anyone who obeys state law must be “the state” is not supported by any rule or decision of which we are aware. We asked the Sheriff’s lawyer at oral argument if a business that puts soot scrubbers on its smokestack, in compliance with regulations under the Clean Air Act of 1970, would be “the federal government” for purposes of citizen suits under that statute (which therefore would have to be dismissed as barred by sovereign immunity). Counsel answered yes but could not supply authority for the proposition, which if true would make

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many state and federal laws unenforceable by entitling private defendants to the benefit of sovereign immunity. The National Labor Relations Act requires employers to recognize and bargain with unions that are supported by a majority of its workers; does this turn all collective bargaining into an activity by the federal government? The Fair Labor Standards Act sets minimum wages; do employers act as “the United States” when they pay (or fail to pay) the legally required wages?
The Sheriff may be confused by the fact that some public officials in Illinois serve in dual capacities. Each county has a State’s Attorney. That official is “the state” when representing the state (all criminal prosecutions are brought in the state’s name) and “the county” when representing the county (which he serves as its lawyer in civil suits). See National Casualty Co. v. McFatridge, No. 09-1497 (7th Cir. Apr. 28, 2010), slip op. 12–14 (discussing this dual-capacity status). But it does not follow from the fact that one person may be an official of two different public entities that every person who is subject to state or federal law is “the sovereign” whose law he obeys. A sheriff in Illinois may perform some tasks on behalf of the state—so we assumed in Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992)—but when running the county jail he is a county official. DeGenova v. Sheriff of DuPage County, 209 F.3d 973, 976–77 (7th Cir. 2000); see also Ill. Const. Art. VII §4(c); People ex rel. Davis v. Nellis, 249 Ill. 12, 21, 94 N.E. 165, 169 (1911).
That some rules for the conduct of county officials (and private citizens) are set by a state does not make that

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person “the state” for the purpose of §1983, the eleventh amendment, or doctrines of sovereign immunity. Status of an entity as “the state” depends on the organization chart and not on whose law supplies the substantive rule or who pays the judgments. See Regents of University of California v. Doe, 519 U.S. 425 (1997).
Sometimes a person who follows another sovereign’s commands is entitled to offsetting benefits. For example, a person acting on the directions of a federal agency may be treated as a “person acting under” that agency, which entitles the person to remove any litigation to federal court. See 28 U.S.C. §1442(a)(1); Watson v. Philip Morris Cos., 551 U.S. 142, 151–52 (2007). A vendor that sells products made strictly according to a federal buyer’s specifications is not liable to private persons in tort for defects in those products. See Boyle v. United Technologies Corp., 487 U.S. 500 (1988). And a private firm that complies with a state law that replaces competition with regulation does not violate the antitrust laws, even when an identical private agreement would be deemed unlawful per se. See, e.g., Parker v. Brown, 317 U.S. 341 (1943). But rules such as these are a far cry from a norm that anyone whose behavior is controlled by state or federal law must be treated as part of the government, and suits against it dismissed by operation of sovereign immunity or the limited scope of the word “person” in §1983.
The Sheriff is responsible for his own policies—and as a state actor (but not himself “the state”) for any unconstitutional policies that Illinois has directed him to im-

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plement. This interlocutory appeal is dismissed because it is not from a “final decision” and because it is frivolous. Any remaining arguments are open to review on appeal from the final decision.

4-28-10

 
 Case: 1:06-cv-00552 Document #: 624-1 Filed: 11/18/10 Page 1 of 50 PageID #:13753

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

KIM YOUNG, RONALD JOHNSON, WILLIAM JONES, ALLEN GORMAN, GERRAD LAMOUR, LEE MERCADO, BRADLEY HYTREK, CARL GRAY, and MATTHEW LIPTAK, on behalf of themselves and a class of others similarly situated,
Plaintiffs,
v.
COUNTY OF COOK and TOM DART, Sheriff of Cook County,
Defendants.

) ) ) ) No: 06-CV-552 ) ) JUDGE KENNELLY ) ) JURY TRIAL DEMANDED ) ) ) ) ) ) ) )

CLASS ACTION RELEASE AND SETTLEMENT AGREEMENT This Class Action Release and Settlement Agreement (“Agreement”) is made between and among (1) Kim Young, Ronald Johnson, William Jones, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek, Carl Gray, and Matthew Liptak, (collectively, the “Named Plaintiffs”), individually and as representatives of the Settlement Classes defined in Paragraph 10 below (collectively, “Plaintiffs”), and counsel for the Named Plaintiffs and the Settlement Classes, Michael Kanovitz, Esq., and the law firm of Loevy & Loevy, on the one hand; and (2) the County of Cook and Tom Dart, Sheriff of Cook County (“Defendants”), on the other hand (collectively, the “Parties”).
1. This Agreement is entered into to effect a full and final settlement and dismissal with prejudice all claims against Defendants in the above-captioned lawsuit (the “Action”) on the terms set forth below, subject to the approval of the Court. The Parties acknowledge that this Settlement Agreement is contingent upon the Finance Committee of the Cook County Board of Commissioners giving its approval to the settlement, and that if the settlement is not so approved by the time of the Mailed Notice Date (as defined below),

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the Settlement Agreement, and any preliminary approval of the settlement shall have no force

or effect, and the Parties will be returned to the status quo ante with respect to this Action as

if this Agreement had never been entered into (other than as to notice and claims

administrator costs which may have been incurred), as further set forth in Paragraphs 53-55.

RECITALS

2.

This is a class action, in which Plaintiffs claim that the Sheriff of

Cook County violated the United States Constitution by maintaining a policy and practice of

conducting blanket strip searches and/or visual body cavity searches during the initial

admission process at Cook County Jail (hereinafter, “Jail”) on pre-trial new admission

detainees charged with misdemeanors or lesser offenses not involving drugs or weapons; and

by maintaining a policy and practice of conducting strip searches and/or visual body cavity

searches of pre-trial male new admission detainees in an unconstitutional manner during the

initial admission process at the Jail. Defendants have denied and continue to deny these

claims and further deny that they have engaged in any wrongdoing whatsoever.

The Court previously certified two litigation classes in this Action. The first certified class,

known as “Class I,” consisted of “All males who were subjected to a strip search and/or

visual body cavity search as a new detainee at the Cook County Jail after January 30, 2004.”

The second certified class, known as “Class II,” consisted of “All people (male and female)

charged with a misdemeanor or lesser offense not involving drugs or weapons who were

subjected to a strip search and/or a visual body cavity search as a new detainee at the Cook

County Jail after January 30, 2004.” Class I claimed that the manner in which the strip

searches and/or visual body cavity searches were conducted was abusive and violated the

Fourth Amendment’s prohibition against unreasonable searches, the Fourteenth

Amendment’s Due Process Clause, and the Fourteenth Amendment’s Equal Protection

Clause. Class II claimed that the blanket policy of conducting strip-searches and/or visual

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body cavity searches on individuals detained on suspicion of misdemeanor or lesser offenses not involving drugs or weapons violated the Fourth Amendment’s prohibition against unreasonable searches. Prior judicial determinations in this case have held in favor of Class I and Class II on the issue of liability as to all of their claims. Specifically, in February of 2009, the Court granted summary judgment to all members of Class II and to those members of Class I who were admitted to the Jail prior to February of 2007. Thereafter, the Court held a trial on the claims of members of Class I admitted to the Jail between February of 2007 and March 30, 2009. On August 13, 2009, the jury found that the Office of the Sheriff of Cook County violated the constitutional rights of these additional class members. Neither the Court’s summary judgment rulings nor the trial determined the damages to Class I or Class II. The Parties recognize the risk, expense, difficulty and uncertainty associated with resolving the issue of damages on a class-wide basis and any appeals that may follow, as well as the uncertainty inherent in complex litigation, and have concluded that the settlement as set forth in this Agreement is fair, reasonable, adequate, and in the best interests of all Parties. The Parties have reached this Agreement at arms’ length, after consultation with their independent advisors and attorneys, in order to resolve these disputes conclusively without the uncertainty, expense, and delay of further litigation, pursuant to the terms set forth herein.
SETTLEMENT TERMS Preliminary Certification of Settlement Classes 3. This Settlement Agreement shall fully and finally settle all individual and class action claims against Defendants that were asserted in the Action, as further provided in Paragraphs 49 and 50 of this Agreement. 4. The parties to this Agreement are sometimes referred to as “the Parties” and include:
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(a) The Named Plaintiffs, Kim Young, Ronald Johnson, William

Jones, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek, Carl

Gray, and Matthew Liptak, individually, and on behalf of the Settlement

Classes, as defined in Paragraph 10; and

(b) The Defendants, the County of Cook and Office of the Sheriff

of Cook County.

5. The “Released Parties” consist of Defendants, the County of Cook and

Office of the Sheriff of Cook County, and all of their future, current, and former officers,

agents, and employees.

6. Counsel for the Named Plaintiffs and the Settlement Classes are

Michael Kanovitz and the law firm of Loevy & Loevy. They are referred to as “Class

Counsel.”

7. The “Claims Administrator” refers to Rust Consulting, Inc.

8. The “Settlement Fund” means the sum total of settlement

administration and notice costs, attorneys’ fees and costs, Incentive Awards, and claims

payments, which, in sum total, shall consist of a $55 million cash fund, plus an assignment by

Defendants to Plaintiffs of certain insurance claims, as further set forth in Paragraph 28.

9. “Claimant” means a potential member of one or more of the Settlement

Classes who submits a claim for settlement payment pursuant to the terms of this Agreement.

10. The Parties stipulate to certification, for settlement purposes only, of

the two Settlement Classes (collectively “Settlement Classes,” and individually, “Settlement

Class I” and “Settlement Class II”) defined as follows:

(a)

Settlement Class I is defined as:

All males who were subjected to a strip search and/or visual body cavity search as a new detainee at the Cook County Jail between January 30, 2004 and March 30, 2009.

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(b)

Settlement Class II is defined as:

All people (male and female) charged with a misdemeanor or lesser offense not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as a new detainee at the Cook County Jail between January 30, 2004 and March 30, 2009.

(c) Named Plaintiff Kim Young is a class representative for

Settlement Class II. Named Plaintiffs Allen Gorman, Bradley Hytrek,

William Jones, Gerrad Lamour, Matthew Liptak, and Lee Erick Mercado are

class representatives for Settlement Classes I and II. Named Plaintiffs Carl

Gray and Ronald Johnson are class representatives for Settlement Class I.

(d) Excluded from these Settlement Classes are the following

persons:

(i) Members of the Northern District of Illinois federal judiciary and their immediate families; and

(ii) All persons who timely elect to opt out of (i.e., exclude themselves) from the Settlement Classes in accordance with the Court’s Orders, as well as all persons who timely elected to opt out of the Litigation Classes on or before February 12, 2009 pursuant to the Court’s Notice in this case.

11. Solely for purposes of implementing this Agreement and effectuating
the settlement, Defendants stipulate that the Court may enter an Order certifying the
Settlement Classes, appointing Named Plaintiffs as representatives of the Settlement Classes
(as set forth in Paragraph 10), and appointing the following as Class Counsel for the
Settlement Classes:
Michael Kanovitz Loevy & Loevy 312 North May Street, Suite 100 Chicago, Illinois 60607 Telephone: (312) 243-5900 Facsimile: (312) 243-5902 Email: mike@loevy.com

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12. Solely for the purpose of implementing this Agreement and effectuating the settlement, the Parties stipulate that the following shall be appointed as Claims Administrator:
Rust Consulting, Inc.
13. Solely for the purpose of implementing this Agreement and effectuating the settlement, Defendants stipulate that the Named Plaintiffs are adequate representatives of the Settlement Classes, as set forth in Paragraph 10.
14. The Parties shall promptly move the Court to enter an order (the “Preliminary Approval Order”) that is without material alteration from Exhibit A hereto, and that, among other things:
(a) preliminarily approves this Agreement; (b) preliminarily certifies the Settlement Classes defined herein, with the Named Plaintiffs approved as class representatives of the Settlement Classes as set forth in Paragraph 10, and Loevy & Loevy appointed as Class Counsel for the Settlement Classes; (c) schedules a fairness hearing on final approval of this Agreement (the “Final Approval Hearing”) to consider the fairness, reasonableness, and adequacy of the proposed settlement and whether it should be finally approved by the Court, as well as to determine the Attorneys’ Fee Award; (d) finds the settlement to be sufficiently fair to warrant providing notice to the Settlement Classes; (e) appoints Rust Consulting, Inc. as Claims Administrator; (f) approves the form of mailed notice (the “Mailed Notice”), the content of which is without material alteration from Exhibit B hereto, and
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directs its mailing to potential members of the Settlement Classes by first class U.S. mail, postage prepaid, to the last-known address for each such person reflected in Cook County Department of Corrections’ records, in accordance with the procedures set forth in Paragraphs 15 and 16, and, for Mailed Notices returned, directs the Claims Administrator to follow the procedures set forth in Paragraph 20;
(g) approves the form of published notice (the “Published Notice”), the content of which is without material alteration from Exhibit C hereto, and directs that it be published in accordance with the Notice Plan, as set forth in Paragraph 14(h);
(h) approves the notice plan (the “Notice Plan”), which shall consist of: (i) sending mailed notice directly to potential members of the Settlement Classes as set forth in Paragraph 14(f) and Paragraphs 15, 16, and 20; (ii) publishing the Published Notice in the following publications: La Raza (Spanish-language weekly publication), the Chicago Sun Times (weekday publication), the Chicago Defender (weekday publication), and Prison Legal News (monthly publication), by placing the Published Notice in each of the foregoing publications as a 1/4 page ad located in the main body of the paper (not the classified section) in two print cycles; (iii) publishing a Claim Form in Prison Legal News in two print cycles; (iv) a website, which the Claims Administrator shall maintain as described in Paragraph 19; and (v) by posting the Published Notice inside the Cook County Jail Receiving Classification and Diagnostic Center (“RCDC”) in a location that is accessible and visible to detainees;
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(i) and finds that it satisfies the requirements of due process and federal law;
(j) approves the settlement website as described in Paragraph 19 which may be amended during the course of the settlement as appropriate and agreed to by the Parties, and which shall be maintained until the Court enters an order relinquishing jurisdiction;
(k) directs the Claims Administrator to maintain a toll-free VRU telephone system containing recorded answers to frequently asked questions, along with an option permitting potential Settlement Class members to speak to live operators or to leave messages in a voicemail box;
(l) approves the claim forms, the contents of which are without material alteration from Exhibit D hereto, for distribution to potential members of the Settlement Classes, and sets a date after which Claim Forms shall be deemed untimely (as further provided in Paragraph 24 below);
(m) determines that the Notice Plan, including the Mailed Notice and Published Notice, (i) is the best practicable notice; (ii) is reasonably calculated, under the circumstances, to apprise potential members of the Settlement Classes of the pendency of the Action and of their right to object or to exclude themselves from the proposed settlement; (iii) is reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) meets all applicable requirements of due process and federal law;
(n) requires the Claims Administrator, at or before the Final Approval Hearing, to file proof of mailing of the Mailed Notice, as well as a list of all persons who timely requested exclusion from the Settlement Classes
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(along with an affidavit attesting to the accuracy of that list (the “Opt-Out List”));
(o) requires each potential member of the Settlement Classes who wishes to exclude himself or herself from the Settlement Classes to submit an appropriate, timely request for exclusion, received no later than forty-five (45) days after the mailing is initially completed (the “Mailed Notice Date”), to the Claims Administrator at the address in the Mailed Notice, and further requires that any requests for exclusion be exercised individually by a Settlement Class member, not as or on behalf of a group, class, or subclass, except that such requests may be submitted on behalf of an individual Settlement Class Member by the executor or administrator of a deceased Settlement Class Member’s estate, or the legal guardian of a Settlement Class Member who has been declared incompetent, or a person with a valid Power of Attorney from the Settlement Class Member. In the case of Settlement Class Members whose mailing was returned to the Claims Administrator as undeliverable and to whom a Notice and Claim Form was re-mailed to a different, current address, the deadline for receipt of the request for exclusion shall be extended by 14 days;
(p) preliminarily enjoins all potential members of the Settlement Classes unless and until they have properly and timely excluded themselves from the Settlement Classes (i) from filing, commencing, intervening in, or participating as plaintiff, claimant, or class member in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction asserting the same claims set forth in the Fifth Amended Complaint in this Action and/or the Released Claims (as defined in Paragraph 48); (ii) from
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filing or commencing, a lawsuit or administrative, regulatory, arbitration, or other proceeding as a class action on behalf of any members of the Settlement Classes who have not properly and timely excluded themselves (including by seeking to amend a pending complaint to include class allegations or seeking class certification in a pending action), asserting the same claims set forth in the Fifth Amended Complaint in this Action and/or the Released Claims; and (iii) from attempting to effect an opt-out of a class of individuals in any lawsuit or administrative, regulatory, arbitration, or other proceeding asserting the same claims set forth in the Fifth Amended Complaint in this Action and/or the Released Claims (as defined in Paragraph 48);
(q) rules that any potential member of the Settlement Classes who does not submit a timely, written request for exclusion from the Settlement Classes will be bound by all proceedings, orders, and judgments in the Action, even if such person subsequently initiates individual litigation or other proceedings encompassed by the Released Claims (as defined in Paragraph 48);
(r) requires each member of the Settlement Classes who has not submitted a timely request for exclusion from the Settlement Classes and who wishes to object to the fairness, reasonableness, or adequacy of this Agreement or the proposed settlement, or the Attorneys’ Fee Award, or Incentive Awards, to mail to the Claims Administrator (who shall promptly forward it to Class Counsel and Counsel for Defendants) and to file with the Court a statement of the objection, as well as the specific legal and factual reasons, if any, for each objection, including any support the member of the Settlement Classes wishes to bring to the Court’s attention and all evidence the
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member of the Settlement Classes wishes to introduce in support of his or her objection, or be forever barred from objection, as follows: the objection must contain (1) a heading that refers to the Action by case name (Young v. County of Cook) and case number (06-CV-552); (2) a statement whether the objector intends to appear at the Final Approval Hearing, either in person or through counsel and, if through counsel, a statement identifying that counsel by name, bar number, address, and telephone number; (3) a statement of the specific legal and factual basis for each objection; (4) a list of any witnesses the objector may call at the Final Approval Hearing, with the address of each witness and a summary of his or her proposed testimony; and (5) a description of any and all evidence the objector may offer at the Final Approval Hearing. Objections will be deemed untimely unless they are received by the Claims Administrator and filed with the Court no later than forty-five (45) days after the Mailed Notice Date, and in the case of Settlement Class Members whose mailing was returned to the Claims Administrator as undeliverable and to whom a Notice and Claim Form was re-mailed to a different, current address, the deadline for receipt of objections shall be extended by 14 days;
(s) provides that the rights to object to the proposed settlement must be exercised individually by a Settlement Class member or his or her attorney, not as a member of a group, class, or subclass, and, except in the case of a deceased or incapacitated Settlement Class member, not by the act of another person acting or purporting to act in any other representative capacity, unless that person is legally authorized to do so;
(t) requires any attorney hired by a member of the Settlement Classes at the Settlement Class member’s expense for the purpose of objecting
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to this Agreement or to the proposed settlement, or to the Attorneys’ Fee Award or Incentive Award, to mail to Claims Administrator (who shall promptly forward it to Class Counsel and Counsel for Defendant) and to file with the Clerk of the Court a notice of appearance within the time period allowed for the Settlement Class Member’s filing of the objection;
(u) directs the Claims Administrator to rent a post office box to be used for receiving requests for exclusion, objections, notices of intention to appear, and any other non-privileged communications, and providing that only the Claims Administrator, Class Counsel, Defendant, the Court, the Clerk of the Court, and their designated agents shall have access to this post office box, except as otherwise expressly provided in this Agreement; and finds that if any privileged communications are disclosed to the Class Administrator, the Court, Defendant, or Counsel for Defendant, the privilege has not been waived by such disclosure;
(v) directs the Claims Administrator and/or Class Counsel promptly to furnish Class Counsel, Counsel for Defendant, and the Claims Administrator with copies of any and all objections, exclusions, or notices of intention to appear, that come into its possession (except as expressly provided in this Agreement);
(w) contains any additional provisions agreeable to the Parties that might be necessary to implement the terms of this Agreement and the proposed settlement; and
(x) finds that preliminary approval of the settlement is contingent upon Finance Committee of the Cook County Board of Commissioners giving its approval to the settlement, and that if the Settlement Agreement is not so
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approved by the Mailed Notice Date, the settlement, the Settlement Agreement, and the Court’s preliminary approval of the settlement shall have no further force or effect, and the Parties will be returned to the status quo ante with respect to this Action as if this Agreement had never been entered into (other than as to notice and claims administrator costs which may have been incurred), or the settlement preliminarily approved, as further set forth in Paragraphs 53-55.
Class Notice and Opt-Out Procedures 15. Within twenty (20) days of the entry of the Preliminary Approval Order, the Claims Administrator shall cause the Mailed Notice, along with the Claim Form, to be mailed by first class U.S. mail postage pre-paid to the last-known address of each potential member of the Settlement Classes whose names and last-known addresses are reasonably ascertainable from the Cook County Department of Corrections records, as agreed to by the Parties. Prior to the mailing, the Claims Administrator shall use address updating services, including but not limited to Lexis SmartLinx and the National Change of Address Database, to verify the accuracy of the addresses of all potential Settlement Classes members, the costs of which are included in the administration costs described in Paragraph 29. In addition, the Claims Administrator shall use reasonable efforts to identify any Settlement Class members who are currently in the custody of the Illinois Department of Corrections and/or the Office of the Sheriff of Cook County, the costs of which are included in the administration costs described in Paragraph 29, and for those members who are so identified, Mailed Notice and the Claim Form shall be mailed to the Settlement Class Members at the respective individual facility at which they are being held.
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16. If, as a result of the mailing, a forwarding address is provided by the Postal Service, but the Mailed Notice is not forwarded by the Postal Service, the Claims Administrator will re-mail the Mailed Notice to the forwarding address. In the event that any such Mailed Notice is returned as undeliverable a second time, no further mailing shall be required. In the case of Settlement Class Members whose Mailed Notice and/or Claim Forms are returned as undeliverable, if the Claims Administrator obtains a current address for any such Settlement Class Member, the Claims Administrator shall re-mail the Mailed Notice and Claim Form to the current address.
17. The Claims Administrator shall effectuate the Published Notice, as set forth in further detail in Exhibit C and Paragraphs 14(g) and 14(h).
18. The Claims Administrator shall maintain a toll-free VRU telephone system containing recorded answers to frequently asked questions, along with an option permitting potential Settlement Class members to speak to live operators or to leave messages in a voicemail box. The Claims Administrator will also maintain a non-toll free telephone number to speak with live operators.
19. The Claims Administrator shall maintain a website for this settlement as set forth in Paragraph 14(j). The website shall include, at a minimum, copies of the Settlement Agreement (including exhibits), the Mailed Notice, the Claim Form, and the Preliminary Approval Order, and may be amended as appropriate during the course of the settlement as agreed to by the Parties. The Mailed Notice and Claim Form shall also be made available in Spanish upon the request of a Claimant and posted on the website. The Parties will notify each other of the receipt of any request for exclusion or objection to this Agreement received from a member of the Settlement Classes within two (2) business days of receipt.
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20. As set forth above, in the case of Settlement Class Members whose Mailed Notice and/or Claim Forms are returned as undeliverable, if the Claims Administrator subsequently obtains a current address for any such Settlement Class Member, the Claims Administrator shall re-mail the Mailed Notice and Claim Form to the current address, and the deadlines for any such Settlement Class Member shall be extended as follows: the postmark deadline for submitting a Claim Form, the deadline by which the Claims Administrator must receive objections and the objections must be filed with the Court, and the deadline by which the Claims Administrator must receive exclusions, shall each be extended by fourteen (14) days.
21. The Named Plaintiffs agree that they shall not elect or seek to opt out or exclude themselves from the Settlement Class(es).
22. All potential members of the Settlement Classes who do not timely and properly exclude themselves from the Settlement Classes shall be bound by this Agreement, and all their claims that are brought in this Action shall be dismissed with prejudice and released as set forth in Paragraphs 49 and 50, even if they never received actual notice of the Action or this settlement.
Claim Forms and Certain Settlement Administration Procedures 23. The Claim Form shall be without material alteration from Exhibit D. 24. To be eligible for any monetary relief set forth in Paragraph 34, a
Settlement Class(es) Member must (a) truthfully, accurately to the best of his or her ability, and completely fill out the Claim Form; (b) sign the Claim Form under penalty of perjury; and (c) mail the Claim Form on or before forty-five (45) days after the Mailed Notice Date to the Claims Administrator and/or Class Counsel, except in the case of Settlement Class Members whose Mailed Notice and/or Claim Forms are returned as undeliverable and for whom the Claims Administrator re-mails the Mailed Notice and Claim Form to the current
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address, for whom the postmark deadline for submission of claim form shall be extended by fourteen (14) days (i.e., fifty-nine (59) days after the Mailed Notice Date).
25. Claim Forms must be signed by the Settlement Class Member, except that Claim Forms may be submitted on behalf of a Settlement Class Member by (1) the executor or administrator of a deceased Settlement Class Member’s estate, (2) the legal guardian of a Settlement Class Member who has been declared incompetent, or (3) a person with a valid Power of Attorney from the Settlement Class Member.
26. The Claims Administrator will be responsible for all tax withholding and reporting as required by law, including for issuing any necessary IRS 1099 form(s) to Settlement Class Members.
Settlement Class Recovery, Costs of Notice, Incentive Awards, and Attorneys’ Fees and Expenses 27. Defendants shall be responsible for the funding of a settlement fund (the “Settlement Fund”). The Settlement Fund shall include $55,000,000.00 in cash, to be funded by Defendants. 28. Assignment of Claims.
(a) Cook County and the Sheriff of Cook County will assign to plaintiffs, to the fullest extent permitted by law, all claims and rights to payment from the following insurance policies (collectively, the “Insurance Policies”) in connection with the claims asserted in Young v. County of Cook, et al. and/or the settlement thereof, whether arising under the policies themselves or the common law, or pursuant to statute, and whether sounding in contract, tort, or otherwise, as well as for any actions the insurers have taken or refused or failed to take in connection with the claims asserted in Young v. County of Cook, et al. and/or the settlement thereof:
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•

Insurance Company of the State of Pennsylvania Policy No. 6034672, effective

December 31, 2003 to December 31, 2004;

•

Insurance Company of the State of Pennsylvania Policy No. 6041577, effective

December 31, 2004 to December 31, 2005;

•

Insurance Company of the State of Pennsylvania Policy No. 8766984, effective

December 31, 2006 to December 31, 2007;

•

Lexington Insurance Company Policy No. 7577060, effective December 31, 2006 to

December 31, 2007;

•

Insurance Company of the State of Pennsylvania Policy No.4890591, effective

December 31, 2007 to December 31, 2008;

•

Lexington Insurance Company Policy No. 1071788, effective December 31, 2007 to

December 31, 2008;

•

Insurance Company of the State of Pennsylvania Policy No. 4890641, effective

December 31, 2008 to December 31, 2009; and

•

Lexington Insurance Company Policy No. 015542506, effective December 31, 2008

to December 31, 2009.

(b) This agreement does not constitute a stipulation by either side

as to the amount of damages in addition to policy limits, if any, which may be

recovered pursuant to the assignment.

(c) Defendants agree that they will reasonably cooperate with

Plaintiffs in asserting any and all of the rights assigned to Plaintiffs.

(d) Plaintiffs acknowledge that this is an assignment of a claim, not

of the Insurance Policies. Subject to the limitations set forth below,

Defendants agree not to take any action with regard to the Insurance Policies

that would impair Plaintiffs’ ability to pursue the rights and claims assigned.

This assignment does not create any further payment obligations on the part of

Defendants other than those amounts that Cook County has agreed to pay in

Paragraph 27 above.

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(e) Defendants warrant and represent that as of the Effective Date of this Agreement, none of the aggregate limits of any of the above policies have been impaired in any way by the payment of either indemnity or defense costs. Defendants further warrant and represent that as of the Effective Date of this Agreement, they are not pursuing claims for insurance coverage to their insurers under the Insurance Policies, other than in connection with Young v. County of Cook, et al., and Michael Parish et al., v Sheriff of Cook County and County of Cook, Case No. 07 CV 4369 (N.D. Ill.). Plaintiffs further warrant and represent that as of the Effective Date of this Agreement, Defendants have not assigned any rights under the above policies to any party(ies) other than Plaintiffs.
(f) Notwithstanding any language to the contrary, nothing herein shall preclude Defendants, after the Effective Date of this Agreement, from providing notice of any claims to any or all of the insurers under the Insurance Policies. Nor shall Defendants be precluded, after the Effective Date of this Agreement, from pursuing or preserving any claims for insurance coverage under the Insurance Policies, subject to the limitation below in paragraph g. regarding the following aggregate limits (collectively, the “Aggregate Limits”):
(1) the $5,000,000 “Errors and Omissions Liability Aggregate, other than personal injury offense wrongful acts” in the 2003-04 Insurance Company of the State of Pennsylvania (“ICOSP”) Special Excess Liability Policy for Public Entities and the $5,000,000 “Annual Aggregate” in the 2004-05 ICOSP Excess Liability Policy;
(2) the $10,000,000 “Errors and Omissions Liability Aggregate, other than personal injury offense and advertising injury offense wrongful acts” in the 2006-07, 2007-08, and 2008-09 ICOSP Special Liability Excess Policies for Public Entities;
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(3) the $10,000,000 “Errors and Omissions Liability Aggregate, other than personal injury offense and advertising injury offense wrongful acts” limits in the 2006-07 and 2007-08, and 200809 Lexington Insurance Company (“Lexington”) Excess Liability policies; and
(4) the (i) $10,000,000 “Class Action Strip Search or Body Cavity Search Liability Aggregate” in the 2008-09 ICOSP Special Liability Excess Policy for Public Entities; and (ii) $10,000,000 “Class Action Strip Search or Body Cavity Search Liability Aggregate” in the 2008-09 Lexington Excess Liability policy. (g) For a period of six months from the Court’s final approval of this Agreement, Defendants shall not accept any funds from ICOSP or Lexington that will reduce the Aggregate Limits. Nothing herein, however, precludes the County from taking any actions at any time to pursue or preserve their rights to any of the Aggregate Limits. Similarly, other than during the foregoing six month period, nothing herein precludes the County from accepting or otherwise receiving any funds from ICOSP or Lexington that would reduce the Aggregate Limits. If, however, the County accepts or receives funds from ICOSP or Lexington that would reduce the Aggregate Limits, the following procedures and requirements will apply:
(1) The County shall give Plaintiffs’ counsel Loevy & Loevy notice of the actual receipt of funds that reduce the Aggregate Limits. Such notice shall be given to Loevy & Loevy within 30 days after the Director of the Department of Risk Management of the Cook County Bureau of Finance receives actual knowledge of the actual receipt of such funds.
(2) Within 30 days of receipt of such notice from The County, either party may initiate a binding arbitration seeking declaratory relief with respect to the following questions: (a) do the Insurance Policies provide coverage, and if so to what extent, for the claims in Young v.
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County of Cook that are subject to the Aggregate Limits, and (b) do the funds received by the County as identified in the foregoing notice implicate the Aggregate Limits, such that the County’s receipt of those funds has reduced the amounts available to pay Plaintiffs for covered claims subject to those same Aggregate Limits (together, g(2)(a) and (b) are referred to as the “Coverage Questions”). (3) Any such arbitration must be filed within the 30-day time period set forth above, unless otherwise agreed to in writing by the parties. Either party may commence the arbitration by filing a written demand for arbitration with the American Arbitration Association. The arbitration shall be conducted in Chicago, Illinois in accordance with the American Arbitration Association Commercial Arbitration Rules and procedures in effect at the time of filing of the demand for arbitration. (4) If the arbitrator answers the Coverage Questions in paragraph (g)(2) above in the affirmative, then the County shall be required to pay to Plaintiffs that portion of the Aggregate Limits that were eroded by the County’s receipt of funds, but only to the extent that Plaintiffs would have been entitled to those funds pursuant to the assigned claims had the Aggregate Limits not been eroded. (5) In any such arbitration, the County may assert any and all arguments that it, ICOSP, or Lexington may have as to why insurance coverage may not exist for the assigned claims in Young v. County of Cook. No prior statements, correspondence, or other communications (whether or oral or written) regarding insurance coverage positions or theories
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made or taken by either of the Parties shall be admissible as evidence or used against one of the Parties in any other way in connection with the arbitration. (6) Plaintiffs shall use their best efforts to diligently pursue any claims assigned herein directly against ICOSP and Lexington. If Plaintiffs at any time enter into a settlement agreement with ICOSP or Lexington regarding coverage under the Insurance Policies for the claims assigned herein and which does not expressly reserve the issue of the Coverage Questions for monies that were previously paid to the County under this paragraph (g) that reduced the Aggregate Limits, then these arbitration procedures shall be null and void, and Plaintiffs shall not be permitted to recover any funds from the County with respect to the Aggregate Limits or otherwise. If Plaintiffs enter into a settlement agreement that expressly reserves the Coverage Questions, then in any arbitration pursuant to this section, Plaintiffs shall bear the burden of not only prevailing on the Coverage Questions, but shall also bear the burden of proving that the Plaintiffs would have settled for more had the County not impaired the Aggregate Limits, and by how much. The County may make any and all arguments in the arbitration that any settlement agreement with ICOSP or Lexington was sufficient to compensate the Plaintiffs for all claims assigned herein, and that the County should not have to pay any additional monies to Plaintiffs from any funds that the County received from ICOSP or Lexington that reduced the Aggregate Limits.
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(7) If, prior to the conclusion of any arbitration set forth above, Plaintiffs’ claims against ICOSP or Lexington reach a judgment that decides any of the Coverage Questions, that judgment shall be binding on the parties with respect to the questions that were to be decided in the arbitration. If any such judgment is being appealed, either party may seek relief to stay or continue the arbitration until the resolution of any such appeal. No restrictions apply to the County’s ability to accept insurance proceeds under the Insurance Policies or any other policies that do not reduce the Aggregate Limits, and none of the foregoing procedures apply to the County’s acceptance of any such insurance proceeds.
(h) Plaintiffs agree that, as part of any settlement or other agreement with ICOSP, Lexington, or any related entities of these insurers (collectively, the “Insurers”), they shall not enter into any agreement involving any of the Insurers buying back any or all of the Insurance Policies. Similarly, Plaintiffs agree that, as part of any settlement or other agreement with the Insurers, Plaintiffs shall not release any rights under the Insurance Policies to insurance coverage, other than those rights assigned to Plaintiffs herein for the Young v. County of Cook, et al. matter. 29. All costs of sending the Mailed Notice and Claim Form and administering the Settlement will be paid out of the Settlement Fund. Defendants shall provide sufficient funds for the Claims Administrator to send out the Mailed Notice and Claim Form no later than seven (7) days before the Mailed Notice Date. The Claims Administrator will perform all work necessary to send the Mailed Notice and Claim Form to the Settlement Class Members and administer the settlement and the Settlement Fund. The
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Parties will provide to the Claims Administrator an agreed list of members of the Settlement Classes (“Class List”) based upon a careful analysis of the Cook County Department of Corrections booking records produced by Defendants in this litigation (hereinafter, “CCDOC records”) and the offense classification chart for the Illinois Criminal Code that is prepared by the Administrative Office of the Illinois Courts (hereinafter, “AOIC table”), to determine the list of individuals who fall into one or both of the Settlement Classes. Where charge data or offense classification data was either unavailable or inconclusive, the following assumptions were used to determine class eligibility: (i) if a statutory charge was ambiguous, such that it was capable of being either a felony or a misdemeanor depending on the nature and circumstances of the specific alleged offense, then in the case of those ambiguous charges that most frequently appeared in the CCDOC records, the ambiguous charges were treated as felony charges, and for all remaining ambiguous charges, the offense classification assigned to that specific charge by CCDOC for any given detainee at the time of the detainee’s admission was used; (ii) if a charge listed in the CCDOC records did not appear in the AOIC table, then the offense classification assigned to that specific charge by CCDOC at the time of the detainee’s admission was used; and (iii) if the offense classification of a particular charge is elevated by statute from misdemeanor to felony where the individual had a prior conviction for that same offense, then in instances in which a detainee was admitted to CCDOC during the class period more than once for such a charge, that charge is treated as a misdemeanor during that particular detainee’s first admission during the class period and as a felony during that particular detainee’s second or subsequent admission during the class period on that charge.
30. The Named Plaintiffs’ incentive awards (“Incentive Awards”) will be paid out of the Settlement Fund. Subject to Court approval, each of the nine Named Plaintiffs will each be paid an additional $25,000 as an award for services provided to the class and in
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recognition of the time, effort, and substantial benefits conferred to the Classes as a result of their involvement. Such awards shall not affect the Named Plaintiffs’ right to seek payment as a Settlement Class Member, except in the case of Named Plaintiffs Allen Gorman and William Jones, who shall not submit Claim Forms as Settlement Class Members but who shall receive payment in addition to the Incentive Awards by Defendants in the full amount of the jury awards awarded on their individual claims, which amounts shall not be paid from the Settlement Fund. The Claims Administrator shall comply with the Internal Revenue Code and may issue IRS Form 1099-MISC where appropriate.
31. Each Settlement Class Member who is not a Named Plaintiff and who testified at the August 2009 trial in this Action shall each be paid an additional $10,000 as an award (“Testifying Class Member Incentive Award”) for services provided to the class and in recognition of the time, effort, and substantial benefits conferred to the Classes as a result of their involvement. Specifically, an award of $10,000 each shall be paid to Paul Beck, Bobby Bishop, Robert Brown, Robert Consiglio, James Curran, Michael Higgs, John Jacobsen, Derrick Jones, Dennis Maimonis, Darryl Paul, Osbaldo Santiago, Eric Slapak, Del Wilson, and Rickey Winfield. Such awards shall not affect these Settlement Class Members’ right to submit Claims Forms and seek payment as Settlement Class Members. The Claims Administrator shall comply with the Internal Revenue Code and may issue IRS Form 1099MISC where appropriate.
32. Each individual who submitted his claim for damages to be tried individually in March and April of 2010 shall be paid by the Defendants for the full amount of the jury awards on his claim. The awards (“Individual Damage Awards”) are as follows: Allen Gorman, $42,000.00; Daniel Coleman, $40,000.00; Robert Brown, $40,000.00; William Jones, $25,000.00; Gerardo Aranda, $32,500.00; Vincent Jackson, $25,000.00; David Malcom, $65,000.00; Martin Medina, $65,000.00. The Individual Damage Awards
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shall not be paid out of the Settlement Fund. Defendants shall pay the Individual Damage Awards within twenty-one (21) days of the entry of the Preliminary Approval Order. The foregoing individuals who will be paid the Individual Damage Awards shall provide counsel for Defendant Cook County with their address and either a social security number or I-TIN (e.g., through a sworn statement or a W-9 form) at least seven (7) days prior to the issuance of payment, so that Defendants can satisfy any federal reporting requirements, or if these individuals do not submit this information, their respective Individual Damage Awards may be subject to backup withholding but only to the extent permitted under federal law. Such individuals may seek a refund from the federal or state government.
33. Class Counsel’s attorneys’ fees, costs, and expenses will be paid out of the Settlement Fund. Class Counsel shall seek from the Court an award of actual costs incurred in this matter, along with attorneys’ fees of up to one-third of the Settlement Fund (collectively hereinafter, the “Attorneys’ Fee Award”). Defendants shall not oppose Class Counsel’s petition for the Attorneys’ Fee Award. The final determination of the Attorneys’ Fee Award will be decided by the Court during the Final Approval Hearing. The Attorneys’ Fee Award will be disbursed to Class Counsel at such time as provided in Paragraph 42 below.
34. Payments to eligible Settlement Classes Members who submit timely and valid Claim Forms shall be determined as follows: Men who were strip-searched one or more time(s) who satisfy the definition of Settlement Class II shall be entitled to an estimated payment (subject to adjustment) of $1,000. Men who were strip-searched one or more times who satisfy the definition of Settlement Class I but not Settlement Class II shall be entitled to an estimated payment (subject to adjustment) of $700. Women who were strip-searched one or more times who satisfy the definition of Settlement Class II shall receive estimated payment (subject to adjustment) of $500.
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35. The following drug- or weapon-related offense shall be considered ineligible under the definition of Settlement Class II: 720 ILCS 5/12-2(a)(1) Aggravated assault; 720 ILCS 5/24-1 Unlawful Use of Weapon; 720 ILCS 5/21-6 Unauthorized Possession or Storage of Weapons; 720 ILCS 5/33F-3 Unlawful Use of Body Armor; 720 ILCS 550 Cannabis Control Act; 720 ILCS 570 Illinois Controlled Substances Act; 720 ILCS 646 Meth Control & Community Protection Act; 720 ILCS 647 Meth Manufacturing Chem. Retail Sale Control Act; 720 ILCS 648 Meth Precursor Control Act; 720 ILCS 690 Use of Intoxicating Compounds Act; 720 ILCS 635 Hypodermic syringes and needles Act; and 720 ILCS 600 Drug Paraphernalia Control Act.
36. In the event that the payment amounts required by Paragraph 37 exceed the funds remaining in the Settlement Fund after payment of other amounts provided for in Paragraphs 29, 30, 31, 33, and 42, payments to Settlement Class Members shall be reduced pro rata to distribute the shortfall.
37. In the event that, following the payment of the other amounts specified in paragraphs 29, 30, 31, 33, and 42, the number of valid Claim Forms does not consume the entire remainder of the Settlement Fund, then Defendant County of Cook may exercise the right to receive a reversion of up to $5 million from such surplus. It is expressly understood that any such reversion will be paid from the monies that the County contributed to the Settlement Fund in excess of the $40 million in self-insured retention (“SIR”) funds offered in its attempts to obtain policy limits from its insurers. In addition, any remaining surplus in the Settlement Fund following the reversion shall be distributed in pro rata amounts to each Settlement Class Member who is eligible for payment amounts under Paragraphs 34 and 3941.
38. The payment amounts to Settlement Class Members, as set forth in Paragraph 34, 36, and 37, are not affected by the number of strip-searches to which a
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Settlement Class Member has been subjected. Settlement Class Members shall receive the same payment amount under this Settlement regardless of the number of times they were strip searched. Settlement Class Members shall receive the highest payment amount to which they are eligible based on any one admission to Cook County Jail during the class period. For example, a Settlement Class Member who meets the definition of Class II on a particular admission date and who meets the definition of only Class I on another admission date shall be entitled to payment as a member of Class II.
ADDITIONAL CLAIMS ADMINISTRATION PROCEDURES 39. Settlement Claims shall be denied if the information in the Class List
indicates that the Claimant is not eligible for payment. For purposes of calculating the claim payments, the information in the Class List shall control and may not be challenged by Claimants except as otherwise specifically provided in this Agreement. The Claims Administrator shall provide copies of all Claim Forms (including any related documents and non-privileged communications from claimants) to Class Counsel and Defendant’s counsel on a weekly basis, and in any event by no later than seven (7) days after the deadline for submitting claims. Within seventy-seven (77) days of the final date of submission of Claim Forms, as set forth in Paragraph 24, the Claims Administrator shall provide to Class Counsel and Defendant’s counsel a list of the Settlement Class members who submitted Claim Forms, along with (1) the Claims Administrator’s initial proposal for which Claim Forms are valid and timely, and (2) the proposed payments for each of the claimants. Class Counsel and Defendants’ counsel shall have twenty-one (21) days thereafter in which to confer regarding (1) which Claim Forms are valid and timely and (2) the appropriate payments (if any) for each claim. If Class Counsel and counsel for Defendant cannot agree on whether any particular claim is entitled to payment under the settlement, they shall submit the issue to the Court. The Court’s decision shall be final, binding, and non-appealable.
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40. Where the Claims Administrator, in its discretion, elects to notify the Claimant of a defect in the Claim Form, such as the failure to sign the Claim Form, such notification must be mailed as soon as practicable upon the Claims Administrator’s receipt of the Claim Form, and in no event may the deficiency notice be mailed later than eighty-two (82) days after the Mailed Notice Date. The Claimant shall have twenty-one (21) days from the date the deficiency notification was mailed to cure the defect. The Claims Administrator’s failure to timely notify a Settlement Class Member of a potential defect in that individual’s Claim Form will mean that the alleged deficiency must be disregarded for purposes of determining eligibility for payment awards. The Claims Administrator may, in its discretion, disregard any deficiency in the Claim Form for purposes of determining eligibility for payment.
41. Within one hundred and ten (110) days of the Mailed Notice Date, the Claims Administrator shall mail to all Claimants who submitted Claim Forms a notice informing the Claimant of the determination as to whether, and how much money (if any), he or she is entitled to receive under the Settlement, but this notice shall be sent only to those Claimants for whom the Claims Administrator has made a determination about eligibility for payment that is different from, or inconsistent with, the information claimed by the claimant on his or her Claim Form. The letter shall also advise the Claimant that he or she may object to the amount of the payment, or to the denial of payment, by mailing to the Claims Administrator, within twenty-two (22) days after the date that the Claims Administrator mails the notice, a written and signed statement setting forth the basis for that objection, including any documents that support the Class Member’s objection, such as charging documents or court papers. Any objection to the aforementioned notice regarding payment amount that is not postmarked within that twenty-two (22) day period shall be waived. The only valid basis for an objection is that the criteria set forth in Paragraphs 34 and 35 were not properly applied
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to the Claimant. The Claims Administrator shall forward any objections to Class Counsel and counsel for Defendant within three (3) days of receipt. The Parties shall seasonably report to the Court any objections that have been submitted and seek the Court’s resolution of these objections no later than fourteen (14) days after the postmark deadline for the submission of these objections. The Parties shall also report to the Court regarding their joint or respective recommendation for resolution of each of the objections.
42. Defendant will pay the Attorneys’ Fee Award, the Incentive Awards, and the Testifying Class Member Incentive Awards within thirty-seven (37) days after the Final Approval Order is entered.
43. Defendants will fund the remainder of the Settlement Fund within eighty-five (85) days after the entry of the Final Approval Order, which amount the Claims Administrator shall hold in trust and distribute in accordance with the terms of this Agreement.
44. The Claims Administrator shall distribute payments within ninety-one (91) days of the entry of the Final Approval Order to each Settlement Class Member who submitted a valid Claim Form. The check will be mailed to the Settlement Class Member at the address indicated on the Claim Form. The Claims Administrator will be responsible for all tax withholding and reporting as required by law, including for issuing any necessary IRS 1099 form(s) to Settlement Class Members. All checks issued to the Settlement Class member claimants in accordance with this Paragraph shall indicate on their face that they are void after one hundred and eighty (180) days from the date issued (“Void Date”). Any monies received as a result of the Assigned Claims, net of attorneys’ fees and costs and claims administration costs, as specified in Paragraphs 29 and 33, will be distributed pro rata as an additional payment to the Settlement Class Members who submitted valid Claim Forms and to whom payment awards were issued pursuant to paragraph 44.
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45. Reversion of funds to the Defendant, if any, as set forth in Paragraph 37, shall occur no earlier than thirty (30) days following the Void Date. Any monies that remain in the Settlement Fund from unclaimed checks that become void and that are not subject to reversion shall be distributed to Program Services at Cook County Jail, for use for counseling, recreation, skills, training, and the like for detainees.
ATTORNEYS’ FEE AWARD 46. Class Counsel will petition the Court for an order awarding attorneys’ fees in an amount no greater than one-third of the Settlement Fund and for actual costs incurred in this matter. The terms of this Agreement are not conditioned upon any minimum or maximum Attorneys’ Fees Award, or upon the payment of any Incentive Award or claims payment to any Named Plaintiffs. Defendants, the Named Plaintiffs, and Class Counsel agreed to all substantive terms of the settlement with respect to members of the Settlement Classes prior to reaching an agreement concerning attorneys’ fees and costs. The Named Plaintiffs and Class Counsel do not condition their willingness to enter into, or perform under, this Settlement Agreement on any agreement or accord regarding the attorneys’ fees or costs of Class Counsel, or the Named Plaintiffs’ Incentive Awards. Class Counsel shall receive from the Settlement Fund the amount of attorneys’ fees and costs approved by the Court, but in no event more than one-third of the Settlement Fund plus actual costs, by the due dates provided herein. Such fees and costs are inclusive of all efforts heretofore expended by Class Counsel and any other attorneys acting on behalf of the Named Plaintiffs and Settlement Classes, up to and including the execution of this Settlement Agreement, and further include all services to be performed by Class Counsel in effectuating this Settlement Agreement. Class Counsel will also be eligible to receive as Attorneys’ Fees up to one-third of the amount recovered from the Defendants’ insurers if Plaintiffs recover any funds in the action on the Assigned Claims.
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Final Approval, Dismissal of Claims, and Releases 47. If after conducting the Final Approval Hearing, the Court grants final approval of this Agreement (including any modifications thereto made by the Parties as provided for herein), the Parties will request that the Court enter a final order (the “Final Order and Judgment”) that, among other things:
(a) certifies the Settlement Classes for settlement purposes only, and finds that the Court has personal jurisdiction over all members of the Settlement Classes and that the Court has subject matter jurisdiction to approve this Agreement and all exhibits thereto;
(b) gives final approval to the settlement set forth in this Agreement as fair, reasonable, and adequate as to the Named Plaintiffs and the Settlement Classes, and in their best interests, and in compliance with all requirements of due process and federal law, and directs the Parties and their counsel to implement and consummate this Agreement and direct the administration of the settlement in accordance with its terms and provisions;
(c) declares this Agreement and the Final Order to be binding on, and have res judicata and preclusive effect in, all pending and future lawsuits or other proceedings encompassed by the Release (as set forth in Paragraphs 49 and 50) maintained by or on behalf of the Named Plaintiffs and all other members of the Settlement Classes, as well as their heirs, executors and administrators, successors, and assigns;
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(d) finds that the Mailed Notice, Published Notice, and Notice Plan implemented pursuant to this Agreement (i) constituted the best practicable notice; (ii) constituted notice that is reasonably calculated, under the circumstances, to apprise members of the Settlement Classes of the pendency of the Action, their right to object or exclude themselves from the proposed settlement and to appear at the Final Approval Hearing, and their right to seek monetary and other relief; (iii) were reasonable and constituted due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) met all applicable requirements of due process and federal law;
(e) finds that Class Counsel and the Named Plaintiffs adequately represented the Settlement Classes for the purpose of entering into and implementing the Agreement;
(f) retains jurisdiction over this Action until all aspects of the settlement of this Action, including any proceedings on the Assigned Claims, are fully resolved;
(g) adjudges that the Named Plaintiffs and the Settlement Classes have conclusively compromised, settled, discharged, dismissed, and released any and all Released Claims against the Released Parties;
(h) approves the payment of the Attorneys’ Fee Award to Class Counsel as set forth in Paragraph 33 and 46, and the payment of Incentive Awards to the Named Plaintiffs and Testifying
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Class Member Incentive Awards as set forth in Paragraph 30 and 31; (i) provides that, as set forth in Paragraphs 48-50, the Named Plaintiffs and all members of the Settlement Classes who have not been excluded from the Settlement Class, whether or not they return a Claim Form within the time and in the manner provided for, shall be barred from asserting any Released Claims against the Released Parties, and any such members of the Settlement Classes shall have released any and all Released Claims as against the Released Parties; (j) determines that the Agreement and the settlement provided for herein, and any proceedings taken pursuant thereto, are not, and should not in any event be offered or received as evidence of, a presumption, concession, or an admission of liability or of any misrepresentation or omission in any statement or written document approved or made by Defendant; provided, however, that reference may be made to this Agreement and the settlement provided for herein in such proceedings as may be necessary to effectuate the provisions of this Agreement; (k) bars and enjoins all members of the Settlement Classes who have not been excluded from the Settlement Classes from (i) from filing, commencing, intervening in, or participating as plaintiff, claimant, or class member in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction asserting the same claims set forth in the Fifth
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Amended Complaint in this Action and/or the Released Claims (as defined in Paragraphs 49 and 50); and (ii) organizing members of the Settlement Classes who have not been excluded from the Settlement Classes into a separate class for purposes of pursuing as a purported class action lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction asserting the same claims set forth in the Fifth Amended Complaint in this Action and/or the Released Claims (as defined in Paragraphs 49 and 50); (l) approves the Opt-Out List and determines that the Opt-Out List is a complete list of all Settlement Classes members who have properly and timely requested exclusion from the Settlement Classes and, accordingly, shall neither share in nor be bound by the Final Order; and (m) authorizes the Parties, without further approval from the Court, to agree to and adopt such amendments, modifications, and expansions of this Agreement and all exhibits hereto as (i) shall be consistent in all material respects with the Final Order and Judgment and (ii) do not limit the rights of members of the Settlement Classes. 48. The claims released by the Named Plaintiffs and the Settlement Classes members as set forth in Paragraphs 49 and 50 are the “Released Claims.” 49. Named Plaintiffs’ Release: As consideration for this Agreement, as of the date of payment of the Incentive Awards, the Named Plaintiffs, including each and every one of their respective agents, representatives, attorneys, heirs, assigns, or any other person
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acting on their behalf or for their benefit hereby generally release and discharge Released Parties from any and all claims, demands, rights, causes of action, compensatory and punitive damages, attorneys’ fees, costs, debts, or liabilities which they now have, or had at any time prior to and through the date of this release.
50. Settlement Class Members’ Release: As consideration for this Agreement, as of the date of payment for of the Incentive Awards, the Settlement Class Members, including each and every one of their respective agents, representatives, attorneys, heirs, assigns, or any other person acting on their behalf or for their benefit hereby generally release and discharge Released Parties from any and all claims, demands, rights, causes of action, compensatory and punitive damages, attorneys’ fees, costs, debts that were asserted in the Fifth Amended Complaint.
51. In the event of an appeal of any aspect of the Final Order, the dates for payment set out herein (Paragraphs 37, 43, 44, and 45) shall be fifteen days following the resolution of such appeal.
52. Nothing in this Agreement shall preclude any action to enforce the terms of the Agreement, including participation in any of the processes detailed therein.
Withdrawal from Settlement 53. Within fifteen (15) days of the occurrence of any of the following events, and upon written notice to counsel for all Parties, any Party shall have the right to withdraw from the settlement: (a) if the Court fails to approve the Agreement or if on appeal the Court’s approval is reversed or substantially modified; or (b) if the Court materially alters any of the terms of the Agreement; or (c) if the Preliminary Approval Order, as described in Paragraph 14, or the Final Approval Order, as described in Paragraph 47, is not entered by the
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Court, or is reversed or modified on appeal, or otherwise fails for any reason; or 54. If this Agreement is not approved by the Court or the settlement is not given approval by the Finance Committee of the Cook County Board of Commissioners, or otherwise fails to become effective, the orders, judgment, and dismissal to be entered pursuant to this Agreement shall be vacated; this Agreement shall have no further force and effect, and the Parties will be returned to the status quo ante with respect to the Action as if this Agreement had never been entered into (other than as to notice and claims administrator costs which may have been incurred). 55. If this Agreement fails to be approved or otherwise fails to be consummated in accordance with its terms: (a) The Named Plaintiffs shall be entitled to continue this Action on behalf
of the classes in accordance with the rulings, circumstances and procedural posture that existed in this Action on or about November 1, 2010; and
(b) Defendants shall retain all rights to continue its defense to this Action and to assert claims in accordance with the rulings, circumstances and procedural posture that existed in this Action on November 1, 2010.
Additional Provisions 56. The Parties hereto shall execute all documents and perform all acts necessary and proper to effectuate the terms of this Agreement. The executing of documents must take place prior to the date scheduled for the Final Approval Hearing.
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57. The Parties may not destroy documents generated related to the notice and administration of the Agreement until eighteen (18) months after the full resolution (including appeals) of any proceeding on the Assigned Claims.
58. Nothing in this Agreement shall be construed to prevent Defendant from communicating orally, electronically, or in writing with Settlement Classes members in the ordinary course of business.
59. All documents, papers and notices required to be given by this Agreement to Plaintiffs, the classes or Class Counsel shall be given to:
Michael Kanovitz LOEVY & LOEVY 312 N. May Street, Suite 100 Chicago, Illinois 60607 All documents, papers and notices required to be given under this Agreement to Defendant shall be given to: Francis Catania Assistant State’s Attorney State's Attorney's Office Richard J. Daley Center 50 W. Washington Street, Room 302 Chicago, IL 60602 60. The Parties to this Agreement agree to cooperate in the submission of this Agreement to the Court and will recommend acceptance of the Agreement by all necessary parties. The Parties shall cooperate in taking any such other steps as may be requested by the Court to implement this Agreement and the settlement provided for herein. 61. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois. 62. The Parties to this Agreement warrant that they are executing this Agreement freely and voluntarily, after independently determining that its provisions are of a
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material benefit to them, and that the duties and obligations imposed by it are fair and reasonable.
63. The Parties to this Agreement have read and fully understand the stated terms and conditions, have had time to reflect on and consider the benefits and consequences of entering into this Settlement Agreement, and have had the opportunity to review the terms of this Agreement with their respective attorneys. The Parties also warrant that they have not entered into this Agreement in reliance upon any warranty or representation, express or implied, of any nature or kind by any other Party, other than the warranties and representations expressly made in this Agreement.
64. Except as otherwise expressly provided in this Agreement, this Agreement constitutes the entire agreement between and among the Parties with respect to the settlement of the Action, and it supersedes all prior and contemporaneous written and/or oral agreements between the parties. All negotiations, discussions, prior understandings and agreements between the Parties with regard to the subject matter of this Agreement are merged into this Agreement, which fully, completely, and accurately states and expresses the Parties’ entire understandings and agreements, and may not be modified or amended except upon a writing signed by the Parties and their respective counsel.
65. This Agreement shall not be construed more strictly against one Party than another merely because of the fact that it may have been prepared by counsel for one of the Parties, it being recognized that, because of the arms’-length negotiations resulting in the Agreement, all Parties hereto have contributed substantially and materially to the preparation of the Agreement.
66. In the event that there are any developments in the effectuation and administration of this Agreement that are not dealt with by the terms of this Agreement, then
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Case: 1:06-cv-00552 Document #: 624-1 Filed: 11/18/10 Page 39 of 50 PageID #:13791 such matters shall be dealt with as agreed upon by the Parties, and, failing agreement, as shall be ordered by this Court. 67. In the event any date or deadline set forth in this Agreement falls on a weekend or legal holiday, such date or deadline shall be on the first business day thereafter. Unless otherwise noted, all references to “days” in this Agreement shall be to calendar days. 68. This Agreement may be executed in any number of counterparts, each of which together shall be deemed one and the same instrument. Facsimile and PDF signature copies are acceptable.
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 Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 1 of 69
BROWN,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6,1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:06−cv−00552

Young et al v. County of Cook et al Assigned to: Honorable Matthew F. Kennelly Case in other court: 09−02797
09−03092 12−01528 Cause: 42:1983 Prisoner Civil Rights Plaintiff
Kim Young

Date Filed: 01/30/2006 Date Terminated: 08/11/2010 Jury Demand: Both Nature of Suit: 555 Civil Rights (Prison Condition) Jurisdiction: Federal Question
represented by Michael I Kanovitz Loevy &Loevy 312 North May Street Suite 100 Chicago, IL 60607 (312)243−5900 Email: mike@loevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron S. Mandel Loevy &Loevy 312 N. May St. Suite 100 Chicago, IL 60607 (312) 243−5900 Email: aaron@loevy.com TERMINATED: 01/23/2013
Arthur R. Loevy Loevy &Loevy 312 North May Street Suite 100 Chicago, IL 60607 (312)243−5900 Email: loevylaw@loevy.com ATTORNEY TO BE NOTICED
Cindy Tsai Loevy &Loevy 312 N May Street Suite 100 Chicago, IL 60607 (312) 243−5900 Email: cindy@loevy.com ATTORNEY TO BE NOTICED
Heather Lewis Donnell Loevy &Loevy 321 North Mat Street Suite 100 Chicago, IL 60607 312 243 5900 Email: heather@loevy.com ATTORNEY TO BE NOTICED
Jonathan I. Loevy Loevy &Loevy 312 North May Street

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 2 of 69

Suite 100 Chicago, IL 60607 (312)243−5900 Email: jon@loevy.com ATTORNEY TO BE NOTICED

Julie Marie Goodwin Loevy &Loevy 312 North May Street Suite 100 Chicago, IL 60607 (312) 243−5900 Email: julie@loevy.com ATTORNEY TO BE NOTICED

Matthew T. Jenkins Deshur Law Firm 55 West Monroe Street Suite 3950 Chicago, IL 60603 312 243 5900 Email: mjenkins@loevy.com TERMINATED: 10/24/2008

Roshna Bala Keen Deshur Law Firm 55 West Monroe Street Suite 3950 Chicago, IL 60603 (312) 243−5900 Email: roshna@loevy.com ATTORNEY TO BE NOTICED

Samantha Liskow 140 S. Dearborn Ste. 404 Chicago, IL 60603 Email: liskows@gmail.com TERMINATED: 01/13/2016 ATTORNEY TO BE NOTICED

Plaintiff
Ronald Johnson on behalf of themselves and a class of others similarly situated

represented by Michael I Kanovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013

Arthur R. Loevy (See above for address) ATTORNEY TO BE NOTICED

Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED

Jonathan I. Loevy

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 3 of 69

(See above for address) ATTORNEY TO BE NOTICED

Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED

Roshna Bala Keen (See above for address) ATTORNEY TO BE NOTICED

Samantha Liskow (See above for address) TERMINATED: 01/13/2016 ATTORNEY TO BE NOTICED

Plaintiff William Jones

represented by Michael I Kanovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013

Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED

Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED

Roshna Bala Keen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Allen Gorman

represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013

Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED

Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED

Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 4 of 69

Plaintiff Gerrad Lamour

represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013

Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED

Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED

Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lee Mercado

represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013

Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED

Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED

Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Doe TERMINATED: 06/29/2009

represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013

Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED

Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED

Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 5 of 69

Plaintiff Bradley Hytrek
Plaintiff Larry Fisher TERMINATED: 06/29/2009
Plaintiff Carl Gray

represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013
Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED
Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013
Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED
Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013
Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED
Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 6 of 69

Plaintiff Matthew Liptak
Plaintiff Carlos Nash TERMINATED: 12/31/2012
Plaintiff Antione Younger TERMINATED: 12/31/2012
Plaintiff Kenan D Johnson TERMINATED: 12/31/2012
Plaintiff Shawn Lewis TERMINATED: 12/31/2012 Plaintiff Brian D Lewis TERMINATED: 12/31/2012
Plaintiff

represented by Aaron S. Mandel (See above for address) TERMINATED: 01/23/2013
Cindy Tsai (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Julie Marie Goodwin (See above for address) ATTORNEY TO BE NOTICED
Michael I Kanovitz (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Nash R−00551 Dixon − DIX 2600 North Brinton Avenue Dixon, IL 61021 PRO SE
represented by Antione Younger M−31285 Robinson − RCC 13423 East 1150th Avenue Robinson, IL 62454 PRO SE
represented by Kenan D Johnson M−08449 Pontiac − PON P.O. Box 99 Pontiac, IL 61764 PRO SE
represented by Shawn Lewis 1124 W. Wilson Chicago, IL 60640 PRO SE
represented by Brian D Lewis #2010−1013076 Cook County Jail P.O. Box 089002 Chicago, IL 60608 PRO SE

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 7 of 69

Darnell Grigsby TERMINATED: 12/31/2012

represented by Darnell Grigsby B−34441 Pinckneyville − PCC P.O. Box 999 Pinckneyville, IL 62274 PRO SE

Plaintiff
Adolph Love TERMINATED: 12/31/2012

represented by Adolph Love 3331 South Giles Avenue Chicago, IL 60616 PRO SE

Plaintiff
Michael Mejia TERMINATED: 12/31/2012

represented by Michael Mejia K−83133 Pontiac − PON P.O. Box 99 Pontiac, IL 61764 PRO SE

Plaintiff
Elroy Henderson TERMINATED: 12/31/2012

represented by Elroy Henderson M−20461 P.O. Box 1000 Menard, IL 62259 PRO SE

Plaintiff
Raymond Hardy TERMINATED: 12/31/2012

represented by Raymond Hardy N−61428 Western − WST 2500 Rt. 99 South Mount Sterling, IL 62353 PRO SE

Plaintiff
Detrick Deshun Cullum TERMINATED: 12/31/2012

represented by Detrick Deshun Cullum M−22036 Pinckneyville − PCC P.O. Box 999 Pinckneyville, IL 62274 PRO SE

Plaintiff
Delaney M Charlson TERMINATED: 12/31/2012

represented by Delaney M Charlson N−71745 Lawrence − LAW 10930 Lawrence Road Sumner, IL 62466 PRO SE

V. Defendant County of Cook

represented by Dominick L Lanzito Peterson Johnson &Murray − Chicago LLC 200 West Adams Street Suite 2125

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 8 of 69

Chicago, IL 60606 312 724−8024 Fax: 312 896 9318 Email: dlanzito@pjmlaw.com TERMINATED: 09/20/2006 LEAD ATTORNEY

Francis J. Catania Cook County State's Attorney Richard J Daley Center 50 W Washington St Room 302 Chicago, IL 60602 (312) 603−5440 Fax: (312) 603−3600 Email: francis.catania@cookcountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Sheahan individually and in his official capacity as Sheriff of Cook County

represented by Daniel Francis Gallagher Cook County State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−5365 Email: daniel.gallagher2@cookcountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Paul Keleher The Keleher Appellate Law Group, LLC 115 South LaSalle Street Suite 2600 Chicago, IL 60603 (312) 648−6164 Email: ckeleher@appellatelawgroup.com ATTORNEY TO BE NOTICED

Daniel A. Kirk Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604−2827 (312) 540−7000 Email: dkirk@querrey.com TERMINATED: 11/06/2008

Dominick L Lanzito (See above for address) ATTORNEY TO BE NOTICED

Francis J. Catania (See above for address) ATTORNEY TO BE NOTICED

Ghazal Sharifi City of Evanston Law Department 2100 Ridge Ave Suite 4400 Evanston, IL 60201 (847)866−2937 Email: gsharifi@cityofevanston.org

Lawrence S. Kowalczyk Querrey &Harrow, Ltd.

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 9 of 69

175 West Jackson Boulevard Suite 1600 Chicago, IL 60604−2827 (312) 540−7000 Email: lkowalczyk@querrey.com ATTORNEY TO BE NOTICED

Paul A O'Grady Peterson Johnson and Murray Chicago LLC 200 West Adams Street Suite 2125 Chicago, IL 60606 312 782−7150 Fax: 312 896 9318 Email: pogrady@pjmlaw.com ATTORNEY TO BE NOTICED

Terrence Franklin Guolee Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604 (312) 540−7544 Email: tguolee@querrey.com ATTORNEY TO BE NOTICED

Defendant
Callie Baird individually and in her official capacity as former Director of the Cook County Department of Corrections

represented by Daniel Francis Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel A. Kirk (See above for address) TERMINATED: 11/06/2008

Dominick L Lanzito (See above for address) ATTORNEY TO BE NOTICED

Lawrence S. Kowalczyk (See above for address) ATTORNEY TO BE NOTICED

Paul A O'Grady (See above for address) ATTORNEY TO BE NOTICED

Terrence Franklin Guolee (See above for address) ATTORNEY TO BE NOTICED

Defendant
Scott Kurdovich individually and in his official capacity as Director of the Cook County Department of Corrections

represented by Daniel Francis Gallagher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel A. Kirk (See above for address) TERMINATED: 11/06/2008

Dominick L Lanzito

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 10 of 69

(See above for address) ATTORNEY TO BE NOTICED

Lawrence S. Kowalczyk (See above for address) ATTORNEY TO BE NOTICED

Paul A O'Grady (See above for address) ATTORNEY TO BE NOTICED

Terrence Franklin Guolee (See above for address) ATTORNEY TO BE NOTICED

Defendant
Steven Martin, Jr. individually and in his official capacity as director of the Cook County Department of Public Health TERMINATED: 01/31/2008

represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ruth Rothenstein individually and in her official capacity as former director of the Cook County Department of Public Health TERMINATED: 01/31/2008

represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Leonard R Bersky individually and in his official capacity as Chief Operating Officer of Cermak Health Services of Cook County TERMINATED: 01/31/2008

represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
David Fagus individually and in his official capacity as Chief Operating Officer of Cermak Health Services of Cook County TERMINATED: 01/31/2008

represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Karen Scott individually and in her official capacity as former Chief Operating Officer of the Cook County Department of Public Health TERMINATED: 01/31/2008

represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Daniel Winship individually and in his official capacity as director of the Cook County Bureau of Health Services TERMINATED: 01/31/2008

represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Director Salavador Godinez

represented by Daniel Francis Gallagher (See above for address)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 11 of 69

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dominick L Lanzito (See above for address) ATTORNEY TO BE NOTICED

Lawrence S. Kowalczyk (See above for address) ATTORNEY TO BE NOTICED

Paul A O'Grady (See above for address) ATTORNEY TO BE NOTICED

Terrence Franklin Guolee (See above for address) ATTORNEY TO BE NOTICED

Defendant Director Salavador Godinez

Defendant
Jeffery Starks TERMINATED: 12/31/2012

represented by Jeffery Starks K−60812 Menard − MND P.O. Box 1000 Menard, IL 62259 PRO SE

Defendant Marlon Robertson

represented by Marlon Robertson B−54606 Stateville − STV P.O. Box 112 Joliet, IL 60434 PRO SE

Defendant
Larry Banks TERMINATED: 12/31/2012

represented by Larry Banks 5914 South Washtenaw Chicago, IL 60629 PRO SE

Defendant
Theopolis Williams TERMINATED: 12/31/2012

represented by Theopolis Williams B−31679 Lawrence − LAW 10930 Lawrence Road Sumner, IL 64266 PRO SE

Movant Benito Hernandez

represented by Benito Hernandez K59299 PRO SE

V. Intervenor

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 12 of 69
George Jenkins TERMINATED: 03/02/2012

Date Filed 01/30/2006 01/30/2006 01/30/2006 01/30/2006 01/30/2006 01/30/2006 01/30/2006 01/31/2006 01/31/2006 01/31/2006 01/31/2006 01/31/2006 02/20/2006 02/24/2006
02/27/2006 02/27/2006 03/07/2006 03/07/2006

# Docket Text
1 COMPLAINT filed by Kim Young, Ronald Johnson; Jury Demand.(mjc, ) (Entered: 01/31/2006)
2 CIVIL Cover Sheet. (mjc, ) (Entered: 01/31/2006)
3 ATTORNEY Appearance for Plaintiffs Kim Young, Ronald Johnson by Michael I Kanovitz. (mjc, ) (Entered: 01/31/2006)
4 ATTORNEY Appearance for Plaintiffs Kim Young, Ronald Johnson by Arthur R. Loevy. (mjc, ) (Entered: 01/31/2006)
5 ATTORNEY Appearance for Plaintiffs Kim Young, Ronald Johnson by Samantha Anne Liskow. (mjc, ) (Entered: 01/31/2006)
6 ATTORNEY Appearance for Plaintiffs Kim Young, Ronald Johnson by Jonathan I. Loevy. (mjc, ) (Entered: 01/31/2006)
8 SUMMONS Issued as to Defendants County of Cook, Michael Sheahan, Callie Baird, Scott Kurdovich, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky. (mjc, ) (Entered: 01/31/2006)
9 SUMMONS Returned Executed by Kim Young, Ronald Johnson as to County of Cook on 1/31/2006, answer due 2/21/2006. (Kanovitz, Michael) (Entered: 01/31/2006)
10 SUMMONS Returned Executed by Kim Young, Ronald Johnson as to Michael Sheahan on 1/31/2006, answer due 2/21/2006. (Kanovitz, Michael) (Entered: 01/31/2006)
11 SUMMONS Returned Executed by Kim Young, Ronald Johnson as to Steven Martin, Jr on 1/31/2006, answer due 2/21/2006. (Kanovitz, Michael) (Entered: 01/31/2006)
12 SUMMONS Returned Executed by Kim Young, Ronald Johnson as to Scott Kurdovich on 1/31/2006, answer due 2/21/2006. (Kanovitz, Michael) (Entered: 01/31/2006)
13 ALIAS Summons Issued as to Scott Kurdovich, Steven Martin, Jr, Leonard R Bersky. (mjc, ) (Entered: 02/02/2006)
14 SUMMONS Returned Executed by Kim Young, Ronald Johnson (Liskow, Samantha) (Entered: 02/20/2006)
15 MINUTE entry before Judge Matthew F. Kennelly :Status hearing set to 9:00 a.m. on 4/10/2006 before Judge Kennelly, in Chambers, Room 2188. Parties are to review and comply with Judge Kennelly's standing initial order, which may be found on his web page, located at http://www.ilnd.uscourts.gov/JUDGE/KENNELLY/mfkpage.htm. Counsel for plaintiff (s) are ordered to cause a copy of this order to be delivered forthwith to each defendant in the same manner that summons has been or is being served on each defendant Mailed notice (or, ) (Entered: 02/24/2006)
16 AMENDED complaint by Kim Young against all defendants also adding William Jones, Plaintiff (Kanovitz, Michael) (Entered: 02/27/2006)
17 NOTICE by Kim Young re amended complaint 16 (Kanovitz, Michael) (Entered: 02/27/2006)
18 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich by Daniel Francis Gallagher (Gallagher, Daniel) (Entered: 03/07/2006)
19 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich (Gallagher, Daniel) (Entered: 03/07/2006)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 13 of 69

03/07/2006 03/07/2006 03/07/2006 03/07/2006 03/07/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/14/2006 03/14/2006 03/15/2006 03/30/2006 03/30/2006 03/31/2006 03/31/2006 04/10/2006
05/05/2006 05/05/2006

20 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich by Lawrence S. Kowalczyk (Kowalczyk, Lawrence) (Entered: 03/07/2006)
21 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich (Kowalczyk, Lawrence) (Entered: 03/07/2006)
22 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich for extension of time to respond to First Amended Complaint (Kowalczyk, Lawrence) (Entered: 03/07/2006)
23 NOTICE of Motion by Lawrence S. Kowalczyk for presentment of motion for extension of time 22 before Honorable Matthew F. Kennelly on 3/15/2006 at 09:30 AM. (Kowalczyk, Lawrence) (Entered: 03/07/2006)
24 ATTORNEY Appearance for Defendants County of Cook, Steven Martin, Jr, Leonard R Bersky by Francis J. Catania Assistant State's Attorney (Catania, Francis) (Entered: 03/07/2006)
25 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich by Terrence Franklin Guolee (Guolee, Terrence) (Entered: 03/10/2006)
26 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re attorney appearance 25 (Guolee, Terrence) (Entered: 03/10/2006)
27 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich by Daniel A. Kirk (Kirk, Daniel) (Entered: 03/10/2006)
28 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re attorney appearance 27 (Kirk, Daniel) (Entered: 03/10/2006)
29 MOTION by Defendants County of Cook, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky for extension of time to file answer or otherwise plead (Catania, Francis) (Entered: 03/14/2006)
30 NOTICE of Motion by Francis J. Catania for presentment of motion for extension of time to file answer 29 before Honorable Matthew F. Kennelly on 4/10/2006 at 09:00 AM. (Catania, Francis) (Entered: 03/14/2006)
31 MINUTE entry before Judge Matthew F. Kennelly : Defendants' motion for additional time 22 is granted. Response to complaint is to be filed by 4/12/06. Mailed notice (mjc, ) (Entered: 03/20/2006)
32 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich by Lawrence S. Kowalczyk (Kowalczyk, Lawrence) (Entered: 03/30/2006)
33 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re attorney appearance 32 (Kowalczyk, Lawrence) (Entered: 03/30/2006)
34 SECOND AMENDED complaint by Kim Young, William Jones, Ronald Johnson against all plaintiffs Defendants (Kanovitz, Michael) (Entered: 03/31/2006)
35 NOTICE by all plaintiffs re amended complaint 34 (Kanovitz, Michael) (Entered: 03/31/2006)
36 MINUTE entry before Judge Matthew F. Kennelly : Motion for extension of time to answer 29 is granted. Status hearing pursuant to Rule 16(b) held with attorneys for all parties. Rule 26(a)(1) disclosures are to be made by 5/8/2006. Dicovery is stayed pending the next status hearing. Status hearing continued to 5/11/2006 at 09:30 AM. (or, ) (Entered: 04/14/2006)
37 MOTION by Defendants David Fagus, County of Cook, Steven Martin, Jr to dismiss the Second Amended Complaint (Catania, Francis) (Entered: 05/05/2006)
38 NOTICE of Motion by Francis J. Catania for presentment of motion to dismiss 37 before Honorable Matthew F. Kennelly on 5/11/2006 at 09:00 AM. (Catania, Francis) (Entered: 05/05/2006)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 14 of 69

05/08/2006 05/08/2006 05/08/2006 05/08/2006 05/08/2006 05/08/2006 05/11/2006 05/11/2006
05/22/2006 06/08/2006 06/08/2006 06/19/2006 06/19/2006 06/22/2006
06/22/2006
06/22/2006
06/22/2006 08/25/2006

39 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich to dismiss plaintiff's second amended complaint (Gallagher, Daniel) (Entered: 05/08/2006)
40 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to dismiss 39 before Honorable Matthew F. Kennelly on 5/11/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 05/08/2006)
41 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich for leave to file brief in excess of 15 pages (Gallagher, Daniel) (Entered: 05/08/2006)
42 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for leave to file 41 before Honorable Matthew F. Kennelly on 5/11/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 05/08/2006)
43 MEMORANDUM by Michael Sheahan, Callie Baird, Scott Kurdovich in Support of motion to dismiss 39 (Gallagher, Daniel) (Entered: 05/08/2006)
44 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re memorandum in support of motion 43 (Gallagher, Daniel) (Entered: 05/08/2006)
45 ATTORNEY Appearance for Defendant County of Cook by Dominick L Lanzito (Lanzito, Dominick) (Entered: 05/11/2006)
46 MINUTE entry before Judge Matthew F. Kennelly : Plaintiffs' response to defendants' motion to dismiss 37 , 39 is to be filed by 6/8/06. Replies are to be filed by 6/22/06. Ruling will be made by mail. Status hearing of 5/11/06 is vacated. Mailed notice (mjc, ) (Entered: 05/15/2006)
47 ATTORNEY Appearance for Defendants Karen Scott, Daniel Winship, Ruth Rothenstein, Leonard R Bersky by Francis J. Catania (Catania, Francis) (Entered: 05/22/2006)
48 MOTION by Plaintiff Kim Young for leave to file excess pages Response to Defendants' Motions to Dismiss (Attachments: # 1 Exhibit Oversized Response Brief)(Kanovitz, Michael) (Entered: 06/08/2006)
49 NOTICE of Motion by Michael I Kanovitz for presentment of motion for leave to file excess pages 48 before Honorable Matthew F. Kennelly on 6/13/2006 at 09:30 AM. (Kanovitz, Michael) (Entered: 06/08/2006)
50 NOTICE of Motion by Michael I Kanovitz for presentment of motion for leave to file excess pages 48 before Honorable Matthew F. Kennelly on 6/27/2006 at 09:30 AM. (Kanovitz, Michael) (Entered: 06/19/2006)
51 MINUTE entry before Judge Matthew F. Kennelly : Motion for leave to file excess pages 48 is granted. (or, ) (Entered: 06/19/2006)
52 REPLY BY COUNTY OF COOK DEFENDANTS TO THE PLAINTIFF?S COMBINED RESPONSE TO THE MOTION BY COUNTY OF COOK TO DISMISS THE SECOND AMENDED COMPLAINT (Catania, Francis) (Entered: 06/22/2006)
53 NOTICE by David Fagus, Karen Scott, Daniel Winship, County of Cook, Steven Martin, Jr, Ruth Rothenstein OF REPLY BY COUNTY OF COOK DEFENDANTS TO THE PLAINTIFF?S COMBINED RESPONSE TO THE MOTION BY COUNTY OF COOK TO DISMISS THE SECOND AMENDED COMPLAINT (Catania, Francis) (Entered: 06/22/2006)
54 REPLY by Michael Sheahan, Callie Baird, Scott Kurdovichin Support of MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich to dismiss plaintiff's second amended complaint 39 (Attachments: # 1 Affidavit Affidavit with General Order)(Gallagher, Daniel) (Entered: 06/22/2006)
55 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re reply to response to motion, 54 (Gallagher, Daniel) (Entered: 06/22/2006)
56 MINUTE entry before Judge Matthew F. Kennelly : For the reasons set forth in the Memorandum Opinion and Order, the Court denies the Sheriff defendants' motion to dismiss (34). The Court grants the Cook County defendants' motion to dismiss

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 15 of 69

08/25/2006 09/07/2006
09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/20/2006 09/21/2006 10/02/2006 10/06/2006 10/12/2006 10/12/2006 10/18/2006 10/18/2006 01/31/2007 01/31/2007

(38) to the extent it seeks dismissal of official capacity claims against Martin, Jr., Winship, Fagus, Scott, Rothstein, and Bersky, but the motion is otherwise denied. Answer to all remaining claims due 9/15,2006. Status hearing set to 9/7/06 at 9:30 a.m. for the purpose of setting a discovery schedule. Mailed notice (mjc, ) (Entered: 09/07/2006)
57 MEMORANDUM Opinion and Order Signed by Judge Matthew F. Kennelly on 8/25/2006.(mjc, ) (Entered: 09/07/2006)
58 MINUTE entry before Judge Matthew F. Kennelly : Status hearing held on 9/7/2006 and continued to 2/7/2006 at 09:30 AM. Motion for class certification is to be filed by 1/31/2007. Parties may begin taking class discovery. (or, ) (Entered: 09/08/2006)
59 ANSWER to Complaint with Jury Demand Second Amended Complaint by David Fagus, Karen Scott, Daniel Winship, County of Cook, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky(Catania, Francis) (Entered: 09/15/2006)
60 NOTICE by David Fagus, Karen Scott, Daniel Winship, County of Cook, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky Answer to Plaintiffs' Second Amended Complaint (Catania, Francis) (Entered: 09/15/2006)
61 ANSWER to amended complaint and Affirmative Defenses by Michael Sheahan, Callie Baird, Scott Kurdovich(Gallagher, Daniel) (Entered: 09/15/2006)
62 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re answer to amended complaint 61 and affirmative defenses (Gallagher, Daniel) (Entered: 09/15/2006)
63 MOTION by Defendant County of Cook to withdraw as attorney (Lanzito, Dominick) (Entered: 09/15/2006)
64 NOTICE by County of Cook re MOTION by Defendant County of Cook to withdraw as attorney 63 (Lanzito, Dominick) (Entered: 09/15/2006)
65 MINUTE entry before Judge Matthew F. Kennelly : Motion for leave to withdraw is granted. Dominick Lanzito is granted to withdraw his appearance for defendants. Mailed notices (gcy, ) (Entered: 09/20/2006)
66 NOTICE of Motion by Dominick L Lanzito for presentment of before Honorable Matthew F. Kennelly on 10/10/2006 at 09:30 AM. (Lanzito, Dominick) (Entered: 09/21/2006)
67 NOTIFICATION by Dominick Lanzito of Address Change for defendant County of Cook. (mjc, ) (Entered: 10/05/2006)
68 MINUTE entry before Judge Matthew F. Kennelly : Motion for leave to withdraw appearance of Dominic Lanzito as attorney for defendant County of Cook is granted. Mailed notices (gcy, ) (Entered: 10/10/2006)
69 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich by Dominick L Lanzito (Lanzito, Dominick) (Entered: 10/12/2006)
70 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re attorney appearance 69 (Lanzito, Dominick) (Entered: 10/12/2006)
71 MOTION by Plaintiff Kim Young to compel 30(b)(6) Deposition (Attachments: # 1 Exhibit A through I)(Kanovitz, Michael) (Entered: 10/18/2006)
72 NOTICE of Motion by Michael I Kanovitz for presentment of motion to compel 71 before Honorable Matthew F. Kennelly on 10/25/2006 at 09:30 AM. (Kanovitz, Michael) (Entered: 10/18/2006)
73 MOTION by Defendant County of Cook, Plaintiff Kim Young for extension of time to file motion (Liskow, Samantha) (Entered: 01/31/2007)
74 NOTICE of Motion by Samantha Anne Liskow for presentment of extension of time 73 before Honorable Matthew F. Kennelly on 2/7/2007 at 09:30 AM. (Liskow, Samantha) (Entered: 01/31/2007)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 16 of 69

01/31/2007 01/31/2007 02/07/2007
03/01/2007 03/01/2007 03/06/2007
03/09/2007
03/09/2007 03/09/2007 03/09/2007 03/23/2007 04/13/2007 04/13/2007 04/18/2007 04/18/2007

75 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to certify class (Attachments: # 1 Exhibits)(Liskow, Samantha) (Entered: 01/31/2007)
76 NOTICE of Motion by Samantha Anne Liskow for presentment of motion to certify class 75 before Honorable Matthew F. Kennelly on 2/7/2008 at 09:30 AM. (Liskow, Samantha) (Entered: 01/31/2007)
77 MINUTE entry before Judge Matthew F. Kennelly dated 2/7/07: Motion hearing held. Joint motion to extend time to file motion for certification of the proposed "Swabbing" Class (Dkt. No. 73) is granted. Motion terminated. Defendant County of Cook is given until March 2, 2007 to file her motion for class certification of the "swabbing" class. Defendant's are to respond to plaintiff's motion to certify class 75 on or before 3/9/07. Plaintiff to reply by 3/23/07. A status hearing and ruling date on motion for class certification is set for 4/23/07 at 9:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 02/07/2007)
78 MOTION by Defendant County of Cook, Plaintiff Kim Young for extension of time to file motion (Liskow, Samantha) (Entered: 03/01/2007)
79 NOTICE of Motion by Samantha Anne Liskow for presentment of extension of time 78 before Honorable Matthew F. Kennelly on 3/6/2007 at 09:45 AM. (Liskow, Samantha) (Entered: 03/01/2007)
80 MINUTE entry before Judge Matthew F. Kennelly : The joint motion to further extend time is granted The deadline for filing a motion for class certification on the proposed "swabbing" loss is extended to 5/2/07. No further extensions will be granted. The case remains set for a status hearing on 4/23/07 at 9:30 a.m. Mailed notices (gcy, ) (Entered: 03/07/2007)
81 RESPONSE by Michael Sheahan, Callie Baird, Scott Kurdovichin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to certify class 75 (Attachments: # 1 Exhibit List of Exhibits to Defendants' Response to Plaintiffs' Motion for Class Certification# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit Group 4 (Part 1 of 5)# 6 Exhibit Group 4 (Part 2 of 5)# 7 Exhibit Group 4 (Part 3 of 5)# 8 Exhibit Group 4 (Part 4 of 5)# 9 Exhibit Group 4 (Part 5 of 5)# 10 Exhibit 5# 11 Exhibit 6# 12 Exhibit 7# 13 Exhibit 8# 14 Exhibit 9)(Gallagher, Daniel) (Entered: 03/09/2007)
82 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re response in opposition to motion,, 81 for class certification (Gallagher, Daniel) (Entered: 03/09/2007)
83 RESPONSE by David Fagus, Karen Scott, Daniel Winship, County of Cook, Steven Martin, Jr, Ruth Rothenstein, Leonard R Berskyin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to certify class 75 (Catania, Francis) (Entered: 03/09/2007)
84 NOTICE by David Fagus, Karen Scott, Daniel Winship, County of Cook, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky (Catania, Francis) (Entered: 03/09/2007)
85 REPLY by Plaintiff Kim Young to motion to certify class 75 (Attachments: # 1 Exhibit A−C)(Kanovitz, Michael) (Entered: 03/23/2007)
86 Defendants' Responses to Plaintiffs' First Requests to Admit to the Cook County Sheriff's Department Defendants by Michael Sheahan, Callie Baird, Scott Kurdovich (Gallagher, Daniel) (Entered: 04/13/2007)
87 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re other 86 Defendants' Responses to Plaitniffs' First Requests to Admit to the Cook County Sheriff's Department Defendants (Gallagher, Daniel) (Entered: 04/13/2007)
88 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to compel discovery (Liskow, Samantha) (Entered: 04/18/2007)
89 NOTICE of Motion by Samantha Anne Liskow for presentment of motion to compel 88 before Honorable Matthew F. Kennelly on 4/23/2007 at 09:30 AM. (Liskow, Samantha) (Entered: 04/18/2007)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 17 of 69

04/23/2007 04/25/2007 04/25/2007 05/01/2007 05/10/2007
05/18/2007 07/12/2007 07/12/2007 07/18/2007
07/20/2007 07/20/2007 08/29/2007
09/07/2007 09/07/2007 09/11/2007 09/11/2007 09/11/2007
09/12/2007

90 MINUTE entry before Judge Matthew F. Kennelly :Status hearing held on 4/23/2007 and continued to 5/10/2007 at 09:30 AM. (or, ) (Entered: 04/24/2007)
91 MINUTE entry before Judge Matthew F. Kennelly : For the reasons set forth in the Memorandum Opinion and Order, the Court grants plaintiffs' motion for class certification (document 75). Mailed notices (gcy, ) (Entered: 04/27/2007)
92 MEMORANDUM Opinion and Order Signed by Judge Matthew F. Kennelly on 4/25/2007:(gcy, ) (Entered: 04/27/2007)
93 STIPULATION That Plaintiff Young Will Not Move To Certify the Putative Class Claims in Count I−II (Kanovitz, Michael) (Entered: 05/01/2007)
94 MINUTE entry before Judge Matthew F. Kennelly : Status hearing held and continued to 8/29/2007 at 9:30 am. Plaintiff's motion to compel is entered and continued to 5/17/2007 at 9:30 a.m. Fact discovery cutoff set to 12/3/2007. Plaintiff's 26(a)(2) disclosures due 1/7/2008, and defendant's by 2/7/2008. Expert discovery cutoff is 3/7/2008.Mailed notice (mjc, ) (Entered: 05/14/2007)
95 MINUTE entry before Judge Matthew F. Kennelly :Motion to compel 88 is terminated based on agreement to comply. (or, ) (Entered: 05/18/2007)
96 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for protective order (Liskow, Samantha) (Entered: 07/12/2007)
97 NOTICE of Motion by Samantha Anne Liskow for presentment of motion for protective order 96 before Honorable Matthew F. Kennelly on 7/18/2007 at 09:30 AM. (Liskow, Samantha) (Entered: 07/12/2007)
98 MINUTE entry before Judge Matthew F. Kennelly : Agreed motion for entry of protective order is granted. Counsel is directed to summit an electronic version of each order for signature, following instructions on Judge Kennelly's web page. Mailed notices (gcy, ) (Entered: 07/18/2007)
99 PROTECTIVE Order Signed by Judge Matthew F. Kennelly on 7/20/2007:(or, ) (Entered: 07/27/2007)
100 PROTECTIVE Order Signed by Judge Matthew F. Kennelly on 7/20/2007:(or, ) (Entered: 07/27/2007)
101 MINUTE entry before Judge Matthew F. Kennelly :Status hearing held on 8/29/2007. Plaintiff's attorney fails to appear. Status hearing continued to 9/12/2007 at 09:30 AM. Plaintiff's attorney is ordered to appear. (or, ) (Entered: 08/29/2007)
102 MOTION by Plaintiff Kim Young to compel discovery answers (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kanovitz, Michael) (Entered: 09/07/2007)
103 NOTICE of Motion by Michael I Kanovitz for presentment of motion to compel 102 before Honorable Matthew F. Kennelly on 9/12/2007 at 09:30 AM. (Kanovitz, Michael) (Entered: 09/07/2007)
104 RESPONSE by Michael Sheahan, Callie Baird, Scott Kurdovichin Opposition to MOTION by Plaintiff Kim Young to compel discovery answers 102 (Gallagher, Daniel) (Entered: 09/11/2007)
105 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re response in opposition to motion 104 to compel (Gallagher, Daniel) (Entered: 09/11/2007)
106 MANDATE from USCA Seventh Circuit: 1.)Defendants' petition for leave to appeal the grant of class certification pursuant to Rule 23(f) of the Federal Rule of Civil Procedure; 2.) Respondents' answer in opposition to the petition for leave to appeal, pursuant to F.R.C.P.23(f) and FRAP 5. IT IS ORDERED that #1 is denied; USCA 07−8013.(gcy, ) (Entered: 09/14/2007)
107 MINUTE entry before Judge Matthew F. Kennelly :Motion to compel 102 is granted in part and denied in part as discussed in open court. Status hearing held on 9/12/2007 and continued to 12/11/2007 at 09:30 AM. (or, ) (Entered: 09/17/2007)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 18 of 69

09/26/2007
09/26/2007 10/26/2007
10/26/2007 10/26/2007 10/26/2007 11/05/2007 11/05/2007 11/07/2007 11/08/2007 11/08/2007 11/13/2007
11/19/2007 11/19/2007 11/19/2007

108 RESPONSE by Defendants David Fagus, Karen Scott, Daniel Winship, County of Cook, Michael Sheahan, Callie Baird, Scott Kurdovich, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky Defendants Supplemental Joint Response to Plaintiffs' 5/14/07 Requests to Admit to All Defendants (Gallagher, Daniel) (Entered: 09/26/2007)
109 NOTICE by all defendants re Response, 108 Defendants Supplemental Joint Response to Plaintiffs' 5/14/07 Requests to Admit to All Defendants (Gallagher, Daniel) (Entered: 09/26/2007)
110 RESPONSE by Defendants David Fagus, Karen Scott, Daniel Winship, County of Cook, Michael Sheahan, Callie Baird, Scott Kurdovich, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky Defendants' Joint Response to Plaintiffs' Amended 9/28/07 Requests to Admit to All Defendants (Gallagher, Daniel) (Entered: 10/26/2007)
111 NOTICE by all defendants re Response, 110 Defendants' Joint Response to Plaintiff's Amended 9/28/07 Requests to Admit to All Defendants (Gallagher, Daniel) (Entered: 10/26/2007)
112 Defendants' Joint Answers to Plaintiffs' Amended 9/28/07 Interrogatories by David Fagus, Karen Scott, Daniel Winship, County of Cook, Michael Sheahan, Callie Baird, Scott Kurdovich, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky (Gallagher, Daniel) (Entered: 10/26/2007)
113 NOTICE by all defendants re other, 112 Defendants' Joint Answers to Plaintiffs' Amended 9/28/07 Interrogatories (Gallagher, Daniel) (Entered: 10/26/2007)
114 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to compel Deposition of Defendant Sheahan (Attachments: # 1 Exhibit A &B)(Kanovitz, Michael) Entry Modified by the Clerk's Office on 11/6/2007 (cdy, ). (Entered: 11/05/2007)
115 NOTICE of Motion by Michael I Kanovitz for presentment of motion to compel 114 before Honorable Matthew F. Kennelly on 11/8/2007 at 09:30 AM. (Kanovitz, Michael) (Entered: 11/05/2007)
116 Re− NOTICE of Motion by Michael I Kanovitz for presentment of motion to compel 114 before Honorable Matthew F. Kennelly on 11/13/2007 at 09:30 AM. (Kanovitz, Michael) (Entered: 11/07/2007)
117 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich to stay the deposition of Michael F. Sheahan and for Leave for Individual Sheriff Defendants to File Motion for Summary Judgment Based on Qualified Immunity (Gallagher, Daniel) (Entered: 11/08/2007)
118 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to stay, 117 before Honorable Matthew F. Kennelly on 11/13/2007 at 09:30 AM. (Gallagher, Daniel) (Entered: 11/08/2007)
119 MINUTE entry before Judge Matthew F. Kennelly :Plaintiffs Kim Young, William Jones, Ronald Johnson to compel Deposition of Defendant Sheahan 114 is granted. MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich to stay the deposition of Michael F. Sheahan is denied and for Leave for Individual Sheriff Defendants to File Motion for Summary Judgment Based on Qualified Immunity 117 is granted. Motion hearing held on 11/13/2007 regarding motion to stay, 117 and motion to compel. 114 Mailed notice (tlp, ) (Entered: 11/13/2007)
120 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich for extension of time to complete discovery Agreed Motion to Extend Fact Discovery Cut−Off 30 Days (Gallagher, Daniel) (Entered: 11/19/2007)
121 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich for extension of time to complete discovery Agree Motion to Extend Fact Discovery Cut−Off 30 Days (Gallagher, Daniel) (Entered: 11/19/2007)
122 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for extension of time to complete discovery 121 before Honorable Matthew F. Kennelly on 11/27/2007 at 09:30 AM. (Gallagher, Daniel) (Entered: 11/19/2007)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 19 of 69

11/27/2007
12/11/2007 12/31/2007 12/31/2007 12/31/2007
12/31/2007 01/02/2008 01/03/2008
01/03/2008 01/03/2008 01/04/2008 01/04/2008 01/08/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008

123 MINUTE entry before Judge Matthew F. Kennelly : Defendants' agreed motion to extend fact discovery cutoff is granted. Fact discovery cutoff dae is extended to 1/3/08. No further extensions. Rule 26(a)(2) dates are extended to 2/4/08 for plaintiffs and 3/4/08 for defendants. Expert discovery cutoff date is extended to 4/11/08. Status hearing of 12/11/07 is vacated and reset to 1/10/08 at 9:30 a.m. Mailed notices (gcy, ) (Entered: 11/28/2007)
124 MINUTE entry before Judge Matthew F. Kennelly :Status hearing set for 1/10/2008 is vacated and reset for 1/16/2008 at 09:30 AM. (or, ) (Entered: 12/11/2007)
125 AMENDED complaint by Kim Young, William Jones, Ronald Johnson against all defendants Adding Defendant Salvador Godinez (Kanovitz, Michael) (Entered: 12/31/2007)
126 NOTICE by all plaintiffs re amended complaint 125 and Stipulation to Amend Complaint (Kanovitz, Michael) (Entered: 12/31/2007)
127 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to compel Defendant Sheahan to Continue his Prematurely−Terminated Deposition (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kanovitz, Michael) (Entered: 12/31/2007)
128 NOTICE of Motion by Michael I Kanovitz for presentment of motion to compel 127 before Honorable Matthew F. Kennelly on 1/2/2008 at 09:30 AM. (Kanovitz, Michael) (Entered: 12/31/2007)
132 SUMMONS Issued as to Defendant Salavador Godinez. (mjc, ) (Entered: 01/03/2008)
129 Supplementary Exhibit (transcript of the Sheahan deposition) to Plaintiffs' Motion to Compel Defendant Sheahan to Continue His Prematurely−Terminated Deposition by Kim Young, William Jones, Ronald Johnson (Liskow, Samantha) (Entered: 01/03/2008)
130 NOTICE by all plaintiffs re other 129 − notice of filing of transcript (Liskow, Samantha) (Entered: 01/03/2008)
131 Corrected NOTICE of Motion by Samantha Anne Liskow for presentment of motion to compel 127 before Honorable Matthew F. Kennelly on 1/8/2008 at 09:30 AM. (Liskow, Samantha) (Entered: 01/03/2008)
133 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich for protective order Sheriff of Cook County's Motion for Protective Order (Gallagher, Daniel) (Entered: 01/04/2008)
134 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for protective order 133 before Honorable Matthew F. Kennelly on 1/8/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 01/04/2008)
135 MINUTE entry before Judge Matthew F. Kennelly :Motion to compel 127 is granted. Motion for protective order 133 is denied. (or, ) (Entered: 01/08/2008)
136 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for discovery Reopen Fact Discovery (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kanovitz, Michael) (Entered: 01/11/2008)
137 MOTION by Plaintiff Kim Young to compel interrogatory answers (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kanovitz, Michael) (Entered: 01/11/2008)
138 NOTICE of Motion by Michael I Kanovitz for presentment of motion for discovery 136 before Honorable Matthew F. Kennelly on 1/16/2008 at 09:30 AM. (Kanovitz, Michael) (Entered: 01/11/2008)
139 NOTICE of Motion by Michael I Kanovitz for presentment of motion to compel 137 before Honorable Matthew F. Kennelly on 1/16/2008 at 09:30 AM. (Kanovitz, Michael) (Entered: 01/11/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 20 of 69

01/15/2008
01/15/2008 01/15/2008 01/15/2008 01/16/2008 01/17/2008 01/23/2008 01/23/2008
01/23/2008
01/24/2008
01/28/2008 01/28/2008 01/28/2008 01/28/2008 01/28/2008 01/28/2008 01/28/2008

140 RESPONSE by Michael Sheahan, Callie Baird, Scott Kurdovichin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for discovery Reopen Fact Discovery 136 (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 01/15/2008)
141 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re response in opposition to motion 140 Sheriff of Cook County's Response to Plaintiff's Motion to Re−Open Discovery (Gallagher, Daniel) (Entered: 01/15/2008)
142 SUMMONS Returned Executed by Kim Young, William Jones, Ronald Johnson as to Salavador Godinez on 1/7/2008, answer due 1/28/2008. (Kanovitz, Michael) (Entered: 01/15/2008)
143 REPLY by Kim Young, William Jones, Ronald Johnson to response in opposition to motion 140 to Reopen Fact Discovery (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit d)(Kanovitz, Michael) (Entered: 01/15/2008)
144 MINUTE entry before Judge Matthew F. Kennelly :Status hearing held on 1/16/2008. Motion to compel and motion to re−open fact discovery are entered and continued to 1/24/2008 at 09:30 AM. (or, ) (Entered: 01/16/2008)
145 ATTORNEY Appearance for Plaintiff Kim Young by matthew T. Jenkins (Jenkins, matthew) (Entered: 01/17/2008)
146 STATUS Report Regarding Motions Continued to 1/24/08 by Kim Young, William Jones, Ronald Johnson (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kanovitz, Michael) (Entered: 01/23/2008)
147 RESPONSE by Michael Sheahan, Callie Baird, Scott Kurdovichin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for discovery Reopen Fact Discovery 136 − Supplemental Response (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Gallagher, Daniel) (Entered: 01/23/2008)
148 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich re response in opposition to motion, 147 Sheriff of Cook County's Supplemental Response to Plaintiff's Motion to Re−Open Discovery (Gallagher, Daniel) (Entered: 01/23/2008)
156 MINUTE entry before Judge Matthew F. Kennelly : Plaintiff's oral motion regarding experts is denied for the reasons stated in open court. Plaintiff's motion to reopen discovery is continued to 2/14/2008 at 9:30 AM. Expert discovery cutoff, on liability, is set to 4/25/2008. Plaintiff's 269a)(2) disclosures on liability issue, due by 2/18/2008, and defendant's by 3/18/2008. Damages expert discovery cutoff is deferred pending ruling on motion for summary judgment. Summary judgment on liability, is due by 5/23/2008. (or, ) (Entered: 01/29/2008)
149 ATTORNEY Appearance for Defendant Salavador Godinez by Daniel Francis Gallagher (Gallagher, Daniel) (Entered: 01/28/2008)
150 ATTORNEY Appearance for Defendant Salavador Godinez by Lawrence S. Kowalczyk (Kowalczyk, Lawrence) (Entered: 01/28/2008)
151 ATTORNEY Appearance for Defendant Salavador Godinez by Terrence Franklin Guolee (Guolee, Terrence) (Entered: 01/28/2008)
152 ATTORNEY Appearance for Defendant Salavador Godinez by Dominick L Lanzito (Lanzito, Dominick) (Entered: 01/28/2008)
153 ATTORNEY Appearance for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez by Paul A OGrady (OGrady, Paul) (Entered: 01/28/2008)
154 ANSWER to amended complaint and Affirmative Defenses to Plaintiffs' Third Amended Complaint by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez(Gallagher, Daniel) (Entered: 01/28/2008)
155 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re answer to amended complaint 154 and Affirmative Defenses to Plaintiffs' Third Amended Complaint (Gallagher, Daniel) (Entered: 01/28/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 21 of 69

01/30/2008 01/31/2008
02/12/2008 02/14/2008 03/07/2008 03/07/2008 03/07/2008 03/08/2008 03/08/2008 03/17/2008 03/27/2008 03/27/2008 04/03/2008 04/03/2008 04/08/2008 04/08/2008
04/08/2008 04/10/2008

157 STIPULATION of Dismissal (Liskow, Samantha) (Entered: 01/30/2008)
158 MINUTE entry before Judge Matthew F. Kennelly : Pursuant to stipulation, plaintiffs' claims against defendants Ruth Rothstein, Karen Scott, Stephen Martin Jr., Daniel Winship, Leonard Bersky and David Faus are dismissed with prejudice and without costs. The Clerk is directed to terminate those defendants. The case remains pending against all other defendants. Mailed notices (gcy, ) (Entered: 01/31/2008)
159 MINUTE entry before Judge Matthew F. Kennelly :Time for Hearing on motion to reopen discovery is moved to 09:00 AM. on 2/14/2008. (or, ) (Entered: 02/12/2008)
160 MINUTE entry before Judge Matthew F. Kennelly :Motion for discovery 136 is withdrawn. Motion to compel 137 is withdrawn. (or, ) (Entered: 02/15/2008)
161 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez for extension of time (Gallagher, Daniel) (Entered: 03/07/2008)
162 NOTICE of Motion by Daniel Francis Gallagher for presentment of extension of time 161 before Honorable Matthew F. Kennelly on 3/13/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 03/07/2008)
163 RE−NOTICE OF AGREED MOTION NOTICE of Motion by Daniel Francis Gallagher for presentment of extension of time 161 before Honorable Matthew F. Kennelly on 3/17/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 03/07/2008)
164 ANSWER to amended complaint Third by David Fagus, Karen Scott, Daniel Winship, County of Cook, Steven Martin, Jr, Ruth Rothenstein, Leonard R Bersky(Catania, Francis) (Entered: 03/08/2008)
165 NOTICE by County of Cook re answer to amended complaint 164 filed by stipulation without objection (Catania, Francis) (Entered: 03/08/2008)
166 MINUTE entry before Judge Honorable Matthew F. Kennelly:Motion for extension of time 161 is granted. Deadline for 26(a)(2) disclosures is extended to 3/25/2008. (or, ) (Entered: 03/19/2008)
167 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to bar (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gallagher, Daniel) (Entered: 03/27/2008)
168 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to bar 167 before Honorable Matthew F. Kennelly on 4/10/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 03/27/2008)
169 MOTION by Defendant County of Cook to join and Adopt the Expert of Co−Def. Sheriff of Cook County (Catania, Francis) (Entered: 04/03/2008)
170 NOTICE of Motion by Francis J. Catania for presentment of motion to join 169 before Honorable Matthew F. Kennelly on 4/10/2008 at 09:30 AM. (Catania, Francis) (Entered: 04/03/2008)
171 MEMORANDUM by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez in support of motion to bar 167 (Attachments: # 1 Exhibit A)(Gallagher, Daniel) (Entered: 04/08/2008)
172 MEMORANDUM by Kim Young, William Jones, Ronald Johnson in Opposition to motion to bar 167 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Kanovitz, Michael) (Entered: 04/08/2008)
173 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re memorandum in support of motion 171 Sheriff of Cook County's Supplemental Memorandum to Motion to Bar (Gallagher, Daniel) (Entered: 04/08/2008)
174 MINUTE entry before Judge Honorable Matthew F. Kennelly:Motion to bar 167 is denied; Motion to join 169 is granted; Set/reset hearings ( Status hearing set for 5/1/2008 at 09:30 AM.) (or, ) (Entered: 04/10/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 22 of 69

05/01/2008 05/06/2008 05/06/2008 05/12/2008
05/13/2008 05/19/2008 05/19/2008 05/20/2008 05/25/2008 05/28/2008
05/29/2008
06/05/2008 06/05/2008 06/23/2008 06/30/2008

175 MINUTE entry before Judge Honorable Matthew F. Kennelly: Status hearing held on 5/1/2008 and continued to 6/23/2008 at 9:30a.m. The date for filing the motion(s) for summary judgment is extended to 8/1/2008.Mailed notice (slb, ) (Entered: 05/05/2008)
176 MOTION by Defendants County of Cook, Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez, Salavador Godinez to transfer case Based on Relatedness (Attachments: # 1 Exhibit Streeter Amended Complaint)(Catania, Francis) (Entered: 05/06/2008)
177 NOTICE of Motion by Francis J. Catania for presentment of motion to transfer case 176 before Honorable Matthew F. Kennelly on 5/13/2008 at 09:30 AM. (Catania, Francis) (Entered: 05/06/2008)
178 MINUTE entry before Judge Honorable Matthew F. Kennelly: Response to motion to transfer case 176 due by 5/21/2008. Motion Hearing set for 5/22/2008 at 09:30 AM. Parties are to note the change in the proposed date for hearing from 5/21/2008 to 5/22/2008. Presentment date of 5/13/2008 is vacated. (or, ) (Entered: 05/12/2008)
179 TRANSCRIPT of Proceedings before Judge Honorable Matthew F. Kennelly held on 1/16/08 (Volumes 1). (gcy, ) (Entered: 05/14/2008)
180 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to Transfer for Settlement Conference (Gallagher, Daniel) (Entered: 05/19/2008)
181 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for miscellaneous relief 180 before Honorable Matthew F. Kennelly on 5/28/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 05/19/2008)
182 RESPONSE by Kim Youngin Opposition to MOTION by Defendants County of Cook, Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez, Salavador Godinez to transfer case Based on Relatedness 176 (Kanovitz, Michael) (Entered: 05/20/2008)
183 MINUTE entry before the Honorable Matthew F. Kennelly: Hearing held on motion to transfer based on relatedness. Motion is denied for the reasons stated in open court. Mailed notices (gcy, ) (Entered: 05/27/2008)
184 MINUTE entry before the Honorable Matthew F. Kennelly: Motion hearing held. MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to Transfer for Settlement Conference 180 is denied for the reasons stated in open court. Status hearing date of 6/23/2008 shall stand.Advised in open court (jms, ) (Entered: 05/28/2008)
185 MINUTE entry before the Honorable Matthew F. Kennelly: The parties are directed to be prepared to discuss at the upcoming status hearing the issue of notice to the certified class in this case, which, as best as the Court can now determine, has not been addressed since the Seventh Circuit declined defendants' petition for leave to appeal the class certification decision several months ago. Mailed notices (gcy, ) Modified on 6/16/2008 (gcy, ). (Entered: 05/30/2008)
186 MOTION by counsel for Plaintiff Kim Young to withdraw as attorney Matthew Jenkins (Loevy, Arthur) (Entered: 06/05/2008)
187 NOTICE of Motion by Arthur R. Loevy for presentment of motion to withdraw as attorney 186 before Honorable Matthew F. Kennelly on 6/25/2008 at 09:30 AM. (Loevy, Arthur) (Entered: 06/05/2008)
188 MINUTE entry before the Honorable Matthew F. Kennelly:Status hearing held on 6/23/2008 and continued to 7/9/2008 at 09:30 AM. Plaintiff's proposal regarding notice is due by 6/30/2008. Defendant's response due by 7/3/2008. (or, ) (Entered: 06/25/2008)
189 STATUS Report Regarding Class Notice by Kim Young, William Jones, Ronald Johnson (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 06/30/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 23 of 69

07/03/2008 07/03/2008 07/09/2008 07/09/2008 08/12/2008
08/14/2008
09/23/2008 09/23/2008 09/29/2008
10/01/2008 10/01/2008 10/02/2008 10/02/2008 10/03/2008 10/03/2008 10/03/2008 10/03/2008 10/03/2008

190 RESPONSE by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to status report 189 regarding Notice to the Class (Gallagher, Daniel) (Entered: 07/03/2008)
191 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re Response 190 to Plaintiff's Status Report Regarding Notice to the Class (Gallagher, Daniel) (Entered: 07/03/2008)
192 MINUTE entry before the Honorable Matthew F. Kennelly:Status hearing held on 7/9/2008 and continued to 8/12/2008 at 09:30 AM. Dispositive motion deadline is vacated. (or, ) (Entered: 07/09/2008)
193 ATTORNEY Appearance for Plaintiffs Kim Young, William Jones, Ronald Johnson by Roshna Balasubramanian. (gcy, ) (Entered: 07/11/2008)
194 MINUTE entry before the Honorable Matthew F. Kennelly:Status hearing held on 8/12/2008 and continued to 8/14/2008 at 09:00 AM., with attorneys by telephone. Additional Status hearing set for 12/18/2008 at 09:30 AM. (or, ) (Entered: 08/12/2008)
195 MINUTE entry before the Honorable Matthew F. Kennelly:Status hearing pursuant to Rule 16(b) held on 8/14/2008 with attorneys for both sides. Deadline for filing summary judgment is 10/3/2008; responses are due 11/7/2008. Replies are not contemplated, but if required on any issues unique to a particular party's motion, the reply will be due on 11/21/2008. (or, ) (Entered: 08/18/2008)
196 MOTION by Defendant County of Cook for disclosure and Reopen Discovery to Disclose a Witness (Catania, Francis) (Entered: 09/23/2008)
197 NOTICE of Motion by Francis J. Catania for presentment of motion for disclosure 196 before Honorable Matthew F. Kennelly on 9/30/2008 at 09:30 AM. (Catania, Francis) (Entered: 09/23/2008)
198 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiff's response, if any, to defendant's motion to reopen is to be filed by 10/3/08. Motion hearing date of 9/30/08 is vacated and reset to 10/8/08 at 9:30 a.m. Mailed notices (gcy, ) (Entered: 09/30/2008)
199 MOTION by Plaintiffs Kim Young, William Jones to continue the Deadline for Filing Summary Judgment (Kanovitz, Michael) (Entered: 10/01/2008)
200 NOTICE of Motion by Michael I Kanovitz for presentment of motion to continue 199 before Honorable Matthew F. Kennelly on 10/8/2008 at 09:30 AM. (Kanovitz, Michael) (Entered: 10/01/2008)
201 MOTION by Defendant County of Cook for extension of time to file Motion for Summary Judgment (Catania, Francis) (Entered: 10/02/2008)
202 NOTICE of Motion by Francis J. Catania for presentment of motion to continue 199 , extension of time 201 before Honorable Matthew F. Kennelly on 10/8/2008 at 09:30 AM. (Catania, Francis) (Entered: 10/02/2008)
203 MEMORANDUM by Kim Young, William Jones, Ronald Johnson in Opposition to motion for disclosure 196 (Kanovitz, Michael) (Entered: 10/03/2008)
204 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez for summary judgment Based on Constitutionality of Search Policy (Gallagher, Daniel) (Entered: 10/03/2008)
205 MEMORANDUM by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez in support of motion for summary judgment 204 on Constitutionality of Search Policy (Gallagher, Daniel) (Entered: 10/03/2008)
206 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez for summary judgment based on Qualified Immunity (Gallagher, Daniel) (Entered: 10/03/2008)
207 MEMORANDUM by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez in support of motion for summary judgment 206 based on Qualified Immunity (Gallagher, Daniel) (Entered: 10/03/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 24 of 69

10/03/2008
10/03/2008
10/03/2008
10/03/2008 10/03/2008 10/03/2008 10/08/2008 10/13/2008 10/14/2008 10/14/2008 10/15/2008
10/24/2008 10/31/2008 10/31/2008 11/06/2008 11/10/2008 11/10/2008

208 RULE 56 Statement by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez regarding motion for summary judgment 204 , motion for summary judgment 206 (Attachments: # 1 Exhibit 1 through 13 filed in paper format with the Court due to their voluminous size)(Gallagher, Daniel) (Entered: 10/03/2008)
209 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez for summary judgment Based on Constitutionality of Search Policy 204 , memorandum in support of motion 207 , memorandum in support of motion 205 , Rule 56 statement, 208 , MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez for summary judgment based on Qualified Immunity 206 (Gallagher, Daniel) (Entered: 10/03/2008)
210 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re Rule 56 statement, 208 Exhibits 1 through 13 to Sheriff Defendants' Rule 56.1 Statement of Undisputed Facts in Support of their Motions for Summary Judgment filed in paper format with the Court due to their voluminous (Gallagher, Daniel) (Entered: 10/03/2008)
211 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez Motion to Decertify this Litigation as a Class Action (Gallagher, Daniel) (Entered: 10/03/2008)
212 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for miscellaneous relief 211 before Honorable Matthew F. Kennelly on 10/8/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 10/03/2008)
214 EXHIBITS to Sheriff Defendants' Local Rule 56.1 statement of undisputed facts in support of their motions for summary judgment. Vols I thru XI; Notice(gcy, ) (Entered: 10/09/2008)
213 MINUTE entry before the Honorable Matthew F. Kennelly:All motions are continued to 10/15/2008 at 09:30 AM. (or, ) (Entered: 10/09/2008)
215 STATUS Report Regarding the County's Motion to Reopen Discovery by Ronald Johnson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Kanovitz, Michael) (Entered: 10/13/2008)
216 STATUS Report and Response to Plaintiffs' Report by County of Cook (Attachments: # 1 Affidavit County Exhibit 1 Greg Green)(Catania, Francis) (Entered: 10/14/2008)
217 NOTICE by County of Cook (Catania, Francis) (Entered: 10/14/2008)
218 MINUTE entry before the Honorable Matthew F. Kennelly:Motion to reopen discovery is denied. Motion to continue is granted. Motion for extension of time 201 is granted. Deadline for filing dispositive motions is extended to 11/8/2008. Status hearing set for 11/13/2008 at 09:30 AM. (or, ) (Entered: 10/15/2008)
219 MINUTE entry before the Honorable Matthew F. Kennelly: Motion to withdraw Matthew Jenkins as counsel for plaintiff is granted [#186]. Mailed notices (gcy, ) (Entered: 10/27/2008)
220 MOTION by counsel for Defendants Michael Sheahan, Callie Baird, Scott Kurdovich to withdraw as attorney (Kirk, Daniel) (Entered: 10/31/2008)
221 NOTICE of Motion by Daniel A. Kirk for presentment of motion to withdraw as attorney 220 before Honorable Matthew F. Kennelly on 11/6/2008 at 09:30 AM. (Kirk, Daniel) (Entered: 10/31/2008)
222 MINUTE entry before the Honorable Matthew F. Kennelly: The motion of Daniel Kirk to withdraw his appearance as counsel is granted. Mailed notices (gcy, ) (Entered: 11/06/2008)
223 MOTION by Defendant County of Cook for summary judgment (Catania, Francis) (Entered: 11/10/2008)
224 NOTICE by County of Cook of Filing Motion for Summary Judgment (Catania, Francis) (Entered: 11/10/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 25 of 69

11/10/2008 11/10/2008 11/10/2008
11/10/2008 11/10/2008 11/10/2008
11/10/2008 11/10/2008 11/10/2008 11/13/2008 12/08/2008 12/08/2008 12/09/2008

225 MEMORANDUM in Support of Motion for Summary Judgment by County of Cook (Catania, Francis) (Entered: 11/10/2008)
226 RULE 56 (b) Local rule 56.1 Statement of County of Cook (Catania, Francis) (Entered: 11/10/2008)
227 RULE 56 (b) Local Rule 56.1 Statement by County of Cook regarding motion for summary judgment 223 (Attachments: # 1 Exhibit Third Amended Complaint, # 2 Exhibit B Deposition of Plaintiff Johnson, # 3 Exhibit C Deposition of Kim Young, # 4 Exhibit D Deposition of Jones, # 5 Exhibit F Dismissal Order, # 6 Exhibit G Deposition of Marlon Jones, # 7 Exhibit H Deposition of Alvin Montique, # 8 Exhibit J Deposition of Sgt. Erica Queen, # 9 Exhibit K Deposition of Bryan Hatton, # 10 Exhibit L Deposition of Brian Doyle, # 11 Exhibit M Deposition of Jeffrey Aleman, # 12 Exhibit N Deposition of Dep Delitz, # 13 Exhibit O Deposition of Steven Martin, # 14 Exhibit P part of Deposition of Scott Kurtovich, # 15 Exhibit Q Deposition #1 of Brown)(Catania, Francis) (Entered: 11/10/2008)
228 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for summary judgment (Liskow, Samantha) (Entered: 11/10/2008)
229 Memorandum in Support of Plaintiffs' Motion for Summary Judgment by Kim Young, William Jones, Ronald Johnson (Liskow, Samantha) (Entered: 11/10/2008)
230 Plaintiffs' Statement of Facts in Support of Their Motion for Summary Judgment by Kim Young, William Jones, Ronald Johnson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, Part A, # 16 Exhibit 15, Part B, # 17 Exhibit 15, Part C, # 18 Exhibit 15, Part D, # 19 Exhibit 15, Part E, # 20 Exhibit 15, Part F, # 21 Exhibit 15, Part G, # 22 Exhibit 15, Part H, # 23 Exhibit 15, Part I, # 24 Exhibit 15, Part J, # 25 Exhibit 15, Part K, # 26 Exhibit 16, # 27 Exhibit 17, # 28 Exhibit 18, # 29 Exhibit 19, # 30 Exhibit 20, # 31 Exhibit 21, # 32 Exhibit 22, # 33 Exhibit 23, # 34 Exhibit 24, # 35 Exhibit 25, # 36 Exhibit 26, # 37 Exhibit 27, # 38 Exhibit 28, # 39 Exhibit 29, # 40 Exhibit 30, # 41 Exhibit 31, # 42 Exhibit 32, # 43 Exhibit 33, # 44 Exhibit 34, # 45 Exhibit 35, # 46 Exhibit 36, # 47 Exhibit 37, # 48 Exhibit 38, # 49 Exhibit 39)(Liskow, Samantha) (Entered: 11/10/2008)
231 Plaintiffs' Exhibit List to Their Statement of Facts in Support of Summary Judgment by Kim Young, William Jones, Ronald Johnson (Liskow, Samantha) (Entered: 11/10/2008)
232 MOTION by Plaintiffs Kim Young, William Jones, Ronald JohnsonMotion for Leave to File Additional Statements of Facts and Pages in Support of their Motion for Summary Judgment (Liskow, Samantha) (Entered: 11/10/2008)
233 NOTICE of Motion by Samantha Liskow for presentment of motion for miscellaneous relief 232 before Honorable Matthew F. Kennelly on 11/13/2008 at 09:30 AM. (Liskow, Samantha) (Entered: 11/10/2008)
234 MINUTE entry before the Honorable Matthew F. Kennelly: Status hearing held. Motion for leave to file in excess of 15 pages is granted. Response to motion for summary judgment, up to 22 pages, is due by 12/18/2008. No reply is to be filed without prior leave of Court. Motion to decertify is continued generally. Mailed notices (gcy, ) (Entered: 11/17/2008)
235 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for extension of time to file response/reply to Defendants' motions for summary judgment (Liskow, Samantha) (Entered: 12/08/2008)
236 NOTICE of Motion by Samantha Liskow for presentment of motion for extension of time to file response/reply 235 before Honorable Matthew F. Kennelly on 12/11/2008 at 09:30 AM. (Liskow, Samantha) (Entered: 12/08/2008)
237 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to join Plaintiff's Motion to Briefly Extend Time for Summary Judgment Responses (Gallagher, Daniel) (Entered: 12/09/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 26 of 69

12/09/2008 12/11/2008 12/11/2008

238 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to join 237 before Honorable Matthew F. Kennelly on 12/16/2008 at 09:30 AM. (Gallagher, Daniel) (Entered: 12/09/2008)
239 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiff's motion to extend response deadline and defendants' motion to join in plaintiff's motion are both granted. Response due date is extended to 12/23/08. Motion hearing date of 12/17/08 is vacated. Mailed notices (gcy, ) (Entered: 12/11/2008)
240 TRANSCRIPT OF PROCEEDINGS held on 4/10/08 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Valarie M. Ramsey, (708)860−8482, valharam@aol.com.

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.

12/16/2008 12/23/2008 12/23/2008 12/23/2008
12/23/2008 12/23/2008 12/23/2008 12/23/2008 12/23/2008 12/23/2008

Redaction Request due 1/2/2009. Redacted Transcript Deadline set for 1/12/2009. Release of Transcript Restriction set for 3/11/2009. (amb, ) (Entered: 12/11/2008)
241 MINUTE entry before the Honorable Matthew F. Kennelly: Defendants' motion to join plaintiffs' already granted motion to extend time is granted. Mailed notices (gcy, ) (Entered: 12/16/2008)
242 RESPONSE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinezin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for summary judgment 228 (Gallagher, Daniel) (Entered: 12/23/2008)
243 RESPONSE by County of Cookin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson for summary judgment 228 (Catania, Francis) (Entered: 12/23/2008)
244 RULE 56.1 Statement of Additional Undisputed Facts in Support of their Response to Plaintiffs' Motion for Summary Judgment (Attachments: # 1 Exhibit List to Defendants' Local Rule 56.1 Statement of Additional Undisputed Facts in Support of their Response to Plaintiffs' Motion for Summary Judgment, # 2 Exhibit 1 (Part 1 of 3), # 3 Exhibit 1 (Part 2 of 3), # 4 Exhibit 1 (Part 3 of 3), # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7)(Gallagher, Daniel) (Entered: 12/23/2008)
245 RULE 56 Local Rule 56.1(b)(3)(A) &(B) Statement in Response to Plaintiffs' 56.1(a)(3) Statement (Catania, Francis) (Entered: 12/23/2008)
246 RULE 56 Local rule 56.1 (b)(3)(c) Statement of Additional Fact (Attachments: # 1 Exhibit C−1 Declaration of James Pfeiffer)(Catania, Francis) (Entered: 12/23/2008)
247 NOTICE by County of Cook of filing Response to Plaintiffs' Motion for Summary Judgment, Response to SOF, Statement of Additional Fact (Catania, Francis) (Entered: 12/23/2008)
248 RULE 56.1(b)(3)(c) Statement of Additional Factos In Response to Cook County's Motion For Summary Judgement (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kanovitz, Michael) (Entered: 12/23/2008)
249 RULE 56.1(b)(3)(c) Statement of Additional Facts in Response to the Sheriff's Motion for Summary Judgement (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Kanovitz, Michael) (Entered: 12/23/2008)
250 RESPONSE by Kim Young, William Jones, Ronald Johnsonin Opposition to MOTION by Defendant County of Cook for summary judgment 223 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Kanovitz, Michael) (Entered: 12/23/2008)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 27 of 69

12/23/2008
12/23/2008 12/23/2008 12/23/2008 12/23/2008 12/23/2008 12/23/2008
12/23/2008 12/23/2008 12/23/2008 12/23/2008 01/05/2009

251 RESPONSE by Plaintiffs Kim Young, William Jones, Ronald Johnson to Rule 56 statement, 208 PLAINTIFFS' RESPONSE TO DEFENDANTS SHEAHAN, BAIRD, KURTOVICH, AND GODINEZ' LOCAL RULE 56.1 STATEMENT OF UNDISPUTED FACTS (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, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Kanovitz, Michael) (Entered: 12/23/2008)
252 MEMORANDUM by Kim Young, William Jones, Ronald Johnson PLAINTIFFS MEMORANDUM IN OPPOSITION TO SHERIFF DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE CONSTITUTIONALITY OF THE SEARCH POLICY (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 12/23/2008)
253 MEMORANDUM by Kim Young, William Jones, Ronald Johnson PLAINTIFFS RESPONSE TO DEFENDANT COOK COUNTY'S MOTION FOR SUMMARY JUDGMENT (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 12/23/2008)
254 RESPONSE by Plaintiffs Kim Young, William Jones, Ronald Johnson PLAINTIFFS RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY (Kanovitz, Michael) (Entered: 12/23/2008)
255 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to strike Defendants' Expert's Statement (Keen, Roshna) (Entered: 12/23/2008)
256 RESPONSE by Kim Young, William Jones, Ronald Johnsonin Opposition to MOTION by Defendant County of Cook for summary judgment 223 (Attachments: # 1 Exhibit A)(Keen, Roshna) (Entered: 12/23/2008)
257 RESPONSE by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to other,,,, 230 to Plaintiffs' Local Rule 56.1(a)(1)(3) Statement of Undisputed Facts in Support of their Motion for Summary Judgment (Attachments: # 1 Exhibit List to Defendants' Response to Plaintiffs' Local Rule 56.1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3 (Part 1 of 3), # 5 Exhibit 3 (Part 2 of 3), # 6 Exhibit 3 (Part 3 of 3), # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8 (Part 1 of 2), # 12 Exhibit 8 (Part 2 of 2), # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11 (Part 1 of 3), # 16 Exhibit 11 (Part 2 of 3), # 17 Exhibit 11 ( Part 3 of 3), # 18 Exhibit 12)(Gallagher, Daniel) (Entered: 12/23/2008)
258 Exhibits No. 13 through 18 to Defendants' Response to Plaintiffs' Local Rule 56.1 Statement of Facts by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez (Attachments: # 1 Exhibit 13 (Part 1 of 2), # 2 Exhibit 13 (Part 2 of 2), # 3 Exhibit 14 (Part 1 of 2), # 4 Exhibit 14 (Part 2 of 2), # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18)(Gallagher, Daniel) (Entered: 12/23/2008)
259 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to strike other,,,, 230 Plaintiffs' Local Rule 56.1 Statement of Undisputed Facts (Gallagher, Daniel) (Entered: 12/23/2008)
260 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re other, 258 , Rule 56 statement,, 244 , Response,,, 257 , response in opposition to motion 242 , MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to strike other,,,, 230 Plaintiffs' Local Rule 56.1 Statement of Undisputed Facts 259 (Gallagher, Daniel) (Entered: 12/23/2008)
261 NOTICE of Motion by Roshna Bala Keen for presentment of motion to strike 255 before Honorable Matthew F. Kennelly on 1/6/2009 at 09:30 AM. (Keen, Roshna) (Entered: 12/23/2008)
262 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion to strike, filed 12/23/08. I taken under advisement. Response to motion is to be filed by 1/13/09; reply is to be filed by 1/20/09. Mailed notices (gcy, ) (Entered: 01/06/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 28 of 69

01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009
01/12/2009 01/12/2009 01/12/2009 01/16/2009 01/16/2009 01/20/2009 01/20/2009 01/20/2009 01/21/2009 02/23/2009

263 RESPONSE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinezin Opposition to MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to strike Defendants' Expert's Statement 255 (Gallagher, Daniel) (Entered: 01/12/2009)
264 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re response in opposition to motion 263 to strike Defendants' Expert's Statement (Gallagher, Daniel) (Entered: 01/12/2009)
265 MOTION by Defendants Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez for leave to file reply brief (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gallagher, Daniel) (Entered: 01/12/2009)
266 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for leave to file 265 before Honorable Matthew F. Kennelly on 1/20/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 01/12/2009)
267 RESPONSE by Plaintiffs Kim Young, William Jones, Ronald Johnson to complaint 1 , Rule 56 statement,, 244 PLAINTIFFS= RESPONSE TO DEFENDANTS SHERIFF OF COOK COUNTY, SHEAHAN, BAIRD, KURTOVICH, AND GODINEZ= STATEMENT OF ADDITIONAL FACTS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Kanovitz, Michael) (Entered: 01/12/2009)
268 RESPONSE by Plaintiffs Kim Young, William Jones, Ronald Johnson to Rule 56 statement 246 PLAINTIFFS= RESPONSE TO DEFENDANT COOK COUNTY'S STATEMENT OF ADDITIONAL FACTS (Kanovitz, Michael) (Entered: 01/12/2009)
269 MOTION by Plaintiffs William Jones, Ronald Johnson to amend/correct other,,,, 230 Plaintiffs LR 56.1 Statement (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kanovitz, Michael) (Entered: 01/12/2009)
270 NOTICE of Motion by Michael I Kanovitz for presentment of motion to amend/correct, motion for relief 269 before Honorable Matthew F. Kennelly on 1/20/2009 at 09:30 AM. (Kanovitz, Michael) (Entered: 01/12/2009)
271 MEMORANDUM by William Jones, Ronald Johnson in Opposition to motion to strike, motion for relief 259 (Kanovitz, Michael) (Entered: 01/16/2009)
272 MINUTE entry before the Honorable Matthew F. Kennelly: Defendants' motion for leave to file a reply brief is granted. Plaintiff's motion for leave to correct certain clerical and typographic errors is also granted. Mailed notices (gcy, ) Modified on 1/20/2009 (gcy, ). (Entered: 01/20/2009)
273 REPLY by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez to memorandum 252 to Plaintiffs' Response to Defendants' Motion for Summary Judgment (Gallagher, Daniel) (Entered: 01/20/2009)
274 NOTICE by Michael Sheahan, Callie Baird, Scott Kurdovich, Salavador Godinez re reply to response to motion 273 Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment (Gallagher, Daniel) (Entered: 01/20/2009)
275 REPLY by Plaintiffs William Jones, Ronald Johnson to motion to strike 255 (Kanovitz, Michael) (Entered: 01/20/2009)
276 RULE 56 (a)(1)(3) Statement CORRECTED (Attachments: # 1 Corrected Exhibit 16, # 2 Corrected Exhibit 19)(Keen, Roshna) (Entered: 01/21/2009)
277 MINUTE entry before the Honorable Matthew F. Kennelly: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants the Sheriff Defendants' motion to strike as to par. 77 of plaintiffs' Local Rule 56.1 statement [#259]: grants those defendants' motion for summary judgment based on qualified immunity as to individual capacity claims only [#206]; denies those defendants' motion for summary judgment based on constitutionality [#204]; and grants Cook County's motion for summary judgment with respect to respondent superior claims only [#223]. The Court grants plaintiffs' motion for summary judgment as to Class II's claims and as to Class I's Fourth and Fourteenth Amendment claims with

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 29 of 69

02/23/2009 03/05/2009 03/05/2009 03/05/2009 03/05/2009 03/06/2009 03/06/2009 03/06/2009 03/10/2009 03/10/2009 03/16/2009
03/16/2009 03/17/2009 03/17/2009 03/17/2009 03/24/2009 04/01/2009

regard to the period before installation of privacy screens [#228]. The motions are otherwise denied. The Court denies as moot plaintiffs' motion to strike defendants' expert [#255]/ A status hearing is set for 3/10/09 at 9:30 a.m. Each side is to file a status report by 3/6/09 addressing what issues and claims remain unresolved and how the Court should proceed. Mailed notices (gcy, ) (Entered: 02/23/2009)
278 MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 2/23/2009:(gcy, ) (Entered: 02/23/2009)
279 MOTION by Defendants County of Cook, Michael Sheahan for reconsideration (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gallagher, Daniel) (Entered: 03/05/2009)
280 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for reconsideration 279 before Honorable Matthew F. Kennelly on 3/11/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 03/05/2009)
281 MOTION by Defendants County of Cook, Michael Sheahan for leave to appeal (Interlocutory Appeal) (Gallagher, Daniel) (Entered: 03/05/2009)
282 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for leave to appeal 281 before Honorable Matthew F. Kennelly on 3/11/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 03/05/2009)
283 STATUS Report by County of Cook, Michael Sheahan (Gallagher, Daniel) (Entered: 03/06/2009)
284 NOTICE by County of Cook, Michael Sheahan re status report 283 (Gallagher, Daniel) (Entered: 03/06/2009)
285 STATUS Report of Plaintiffs by Kim Young (Kanovitz, Michael) (Entered: 03/06/2009)
286 MINUTE entry before the Honorable Matthew F. Kennelly:Motion to decertify 211 is denied. Status hearing held. Jury Trial set for 6/22/2009 at 09:45 AM. Status hearing continued to 3/25/2009 at 09:30 AM.n notice (or, ) (Entered: 03/10/2009)
287 MINUTE entry before the Honorable Matthew F. Kennelly: Motion hearing date of 3/11/09 is vacated based on discussion at status hearing on 3/10/09. Mailed notices (gcy, ) (Entered: 03/11/2009)
288 MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to file instanter Oversized Response in Opposition to Defendants' Motion for Reconsideration (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 03/16/2009)
289 NOTICE by all plaintiffs re MOTION by Plaintiffs Kim Young, William Jones, Ronald Johnson to file instanter Oversized Response in Opposition to Defendants' Motion for Reconsideration 288 (Keen, Roshna) (Entered: 03/16/2009)
290 MINUTE entry before the Honorable Matthew F. Kennelly:Plaintiffs' motion to file oversized response instanter 288 is granted. Mailed notice (Kennelly, Matthew) (Entered: 03/17/2009)
291 RESPONSE by Kim Young, William Jones, Ronald Johnsonin Opposition to MOTION by Defendants County of Cook, Michael Sheahan for reconsideration 279 (Kanovitz, Michael) (Entered: 03/17/2009)
292 NOTICE by all plaintiffs re response in opposition to motion 291 (Kanovitz, Michael) (Entered: 03/17/2009)
293 MINUTE entry before the Honorable Matthew F. Kennelly:Status hearing and ruling set for 3/25/2009 is vacated and reset to 4/1/2009 at 09:30 AM. (or, ) (Entered: 03/24/2009)
296 MINUTE entry before the Honorable Matthew F. Kennelly: Motion for leave to appeal 281 is denied for the reasons stated in open court. Status hearing held and continued to 4/9/2009 at 9:30 AM. Jury Trial set for 6/22/2009 is vacated and reset to 8/3/2009 at 09:45 AM. (or, ) (Entered: 04/02/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 30 of 69

04/02/2009 04/02/2009 04/02/2009
04/02/2009 04/09/2009
04/10/2009 04/10/2009 04/16/2009
04/21/2009 04/21/2009 04/22/2009 04/27/2009

294 MINUTE entry before the Honorable Matthew F. Kennelly: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies defendants' motion for reconsideration 279 . Mailed notices (gcy, ) (Entered: 04/02/2009)
295 MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 4/2/2009:(gcy, ) (Entered: 04/02/2009)
297 MINUTE entry before the Honorable Matthew F. Kennelly: The Memorandum Opinion and Order of 2/23/09 [#278] is vacated. For the reasons stated in the accompanying Revised Memorandum Opinion and Order, the Court grants the Sheriff Defendants' motion to strike par. 77 of plaintiffs' Local Rule 56.1 statement [#259]; grants those defendants' motion for for summary judgment based on qualified immunity as to individual capacity claims only {#206]; denies those defendants' motion for summary judgment based on constitutionality [#204]; and grants Cook County's motion for summary judgment with respect to respondent superior claims only [#223]. The Court grants plaintiffs' motion for summary judgment as to Class II's claims and as to Class I's Fourth and Fourteenth Amendment claims with regard to the period before installation of privacy screens [#228]. The motions are otherwise denied. The Court denies as moot plaintiffs' motion to strike defendants' expert [#255]. Mailed notices (gcy, ) (Entered: 04/03/2009)
298 REVISED MEMORANDUM OPINION AND ORDER Signed by the Honorable Matthew F. Kennelly on February 23, 2009 (revised April 2, 2009)(gcy, ) (Entered: 04/03/2009)
299 MINUTE entry before the Honorable Matthew F. Kennelly: Status hearing held on 4/9/2009. Plaintiffs are granted leave to file Fourth Amended Complaint by 4/10/2009, to only add additional named plaintiffs. Defendants to file objections to proposed new class representatives by 5/22/2009. Motion regarding John Doe issue to be filed by 5/22/2009. A further status hearing is set for 6/11/2009 at 9:30 A.M. Parties are directed to submit to chambers a draft order with agreed pretrial dates as soon as possible. Mailed notice by judge's staff. (srb,) (Entered: 04/09/2009)
300 Fourth AMENDED complaint by Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Kim Young, William Jones, Ronald Johnson against all defendants (Kanovitz, Michael) (Entered: 04/10/2009)
301 NOTICE by all plaintiffs re amended complaint 300 (Kanovitz, Michael) (Entered: 04/10/2009)
302 MINUTE entry before the Honorable Matthew F. Kennelly: By agreement of the parties, by 4/23/09, plaintiffs are to provide defendants a list of class members they may call at trial, by 5/6/09, defendants identify all other class members they may call at trial by 6/22/09; the parties will exchange will call/may call trial witness lists and trial exhibit lists; by 7/1/09, the parties will exchange the topics and issues they plaint to raise in limine, by 7/10/09, plaintiffs will provide defendants a draft of the final pretrial order; and by 7/17/09, defendants will provide plaintiffs their comments and additions to the draft. The final pretrial order is to be filed by 7/20/09. Final pretrial conference is set to 7/29/2009 at 03:00 p.m. Mailed notices (gcy, ) (Entered: 04/16/2009)
303 MOTION by Movant Mario D Hawkins to intervene instanter. (gcy, ) (Entered: 04/22/2009)
304 APPLICATION to sue of defend as a poor erson by Movant Mario D Hawkins for leave to proceed in forma pauperis. (gcy, ) (Entered: 04/22/2009)
305 MINUTE entry before the Honorable Matthew F. Kennelly: The Court directs the attorneys representing the class to respond within fourteen days to the motion to intervene filed by Mario Hawkins 303 . The Court defers ruling on Hawkins' motion to proceed in forma pauperis 304 until after a response is filed. Mailed notices (gcy, ) (Entered: 04/23/2009)
306 MOTION by Defendants County of Cook, Michael Sheahan for protective order Defendants' Rule 26(b)2 Motion for Protective Order and to Conduct Discovery (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gallagher, Daniel) (Entered:

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 31 of 69

04/27/2009 04/29/2009
04/29/2009 04/29/2009 04/29/2009 04/30/2009 05/07/2009 05/07/2009 05/07/2009
05/07/2009 05/07/2009
05/11/2009
05/11/2009 05/12/2009 05/18/2009 05/19/2009 05/22/2009

04/27/2009)
307 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for protective order 306 before Honorable Matthew F. Kennelly on 4/30/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 04/27/2009)
308 RESPONSE by Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doein Opposition to MOTION by Defendants County of Cook, Michael Sheahan for protective order Defendants' Rule 26(b)2 Motion for Protective Order and to Conduct Discovery 306 (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 04/29/2009)
309 REPLY by County of Cook, Michael Sheahan to response in opposition to motion, 308 Defendants' Reply to Planitiff's Response to Rule 26(b)2 Motion for Protective Order and to Conduct Discovery (Gallagher, Daniel) (Entered: 04/29/2009)
310 NOTICE by Michael Sheahan re reply to response to motion 309 Defendants' Reply to Plaintiff's Response to Rule 26(b)2 Motion for Protective Order and to Conduct Discovery (Gallagher, Daniel) (Entered: 04/29/2009)
311 NOTICE by all plaintiffs re response in opposition to motion, 308 (Keen, Roshna) (Entered: 04/29/2009)
312 MINUTE entry before the Honorable Matthew F. Kennelly:Motion for protective order 306 is granted in part as stated in open court. (or, ) (Entered: 04/30/2009)
313 ATTORNEY Appearance for Plaintiffs Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe by Michael I Kanovitz (Kanovitz, Michael) (Entered: 05/07/2009)
314 ATTORNEY Appearance for Plaintiffs Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe by Michael I Kanovitz (Kanovitz, Michael) (Entered: 05/07/2009)
315 MOTION by Defendant County of Cook, Plaintiffs Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe to compel discovery responses (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Liskow, Samantha) (Entered: 05/07/2009)
316 NOTICE of Motion by Samantha Liskow for presentment of motion to compel, 315 before Honorable Matthew F. Kennelly on 5/12/2009 at 09:30 AM. (Liskow, Samantha) (Entered: 05/07/2009)
317 RESPONSE by Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doein Opposition to MOTION by Movant Mario D Hawkins to intervene 303 (Attachments: # 1 Exhibit A)(Liskow, Samantha) (Entered: 05/07/2009)
318 RESPONSE by County of Cook, Michael Sheahanin Opposition to MOTION by Defendant County of Cook, Plaintiffs Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe to compel discovery responses 315 (Gallagher, Daniel) (Entered: 05/11/2009)
319 NOTICE by Michael Sheahan re response in opposition to motion, 318 Defendants' Response to Plaintiffs' Motion to Compel (Gallagher, Daniel) (Entered: 05/11/2009)
320 MINUTE entry before the Honorable Matthew F. Kennelly:Motion to compel is entered and continued to 5/20/2009 at 09:30 AM. (or, ) (Entered: 05/12/2009)
321 ATTORNEY Appearance for Defendant Michael Sheahan by Francis J. Catania as additional counsel (Catania, Francis) (Entered: 05/18/2009)
322 MINUTE entry before the Honorable Matthew F. Kennelly:Motion to compel 315 is withdrawn. Hearing set for 5/20/2009 is vacated. (or, ) (Entered: 05/19/2009)
323 OBJECTIONS − Defendants' Joint Objections to Class Representatives and Objections to John Doe Status (Attachments: # 1 Exhibit 1 (Part I of II), # 2 Exhibit 1 (Part II of II), # 3 Exhibit 2 (Filed Under Seal), # 4 Exhibit 3, # 5 Exhibit

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 32 of 69

05/22/2009 05/22/2009 06/03/2009
06/04/2009
06/05/2009 06/05/2009 06/09/2009 06/09/2009 06/11/2009
06/11/2009
06/16/2009 06/18/2009 06/22/2009 06/22/2009 06/22/2009 06/23/2009

4, # 6 Exhibit 5)(Gallagher, Daniel) (Entered: 05/22/2009)
324 NOTICE by County of Cook, Michael Sheahan re objections, 323 (Gallagher, Daniel) (Entered: 05/22/2009)
325 MOTION by Plaintiff John DoeProceed by Anonymous Name (Keen, Roshna) (Entered: 05/22/2009)
326 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs are directed to respond to defendants' objections to adequacy of class representatives and objections to John Doe status by no later than 6/9/09. The Court anticipates ruling on both matters at the status hearing previously set for 6/11/09. mailed notice (mk) (Duplicate of entry no. 327)(rp, ). (Entered: 06/03/2009)
327 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs are directed to respond to defendants' objections to adequacy of class representatives and objections to John Doe status by no later than 6/9/09. The Court anticipates ruling on both matters at the status hearing previously set for 6/11/09. mailed notice (mk) (Entered: 06/04/2009)
328 MOTION by Defendant Michael Sheahan miscellaneous Defendant's Motion for Miscellaneous Relief (Gallagher, Daniel) (Entered: 06/05/2009)
329 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for miscellaneous relief 328 before Honorable Matthew F. Kennelly on 6/11/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 06/05/2009)
330 RESPONSE by Plaintiffs Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe to objections, 323 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kanovitz, Michael) (Entered: 06/09/2009)
331 RESPONSE by Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doein Opposition to MOTION by Defendant Michael Sheahan miscellaneous Defendant's Motion for Miscellaneous Relief 328 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Keen, Roshna) (Entered: 06/09/2009)
332 MINUTE entry before the Honorable Matthew F. Kennelly: For the reasons stated below, the Court denies defendants' motion objecting to plaintiffs' class representatives [#323]. The Court also denies the motion of one class representative to proceed in this action under the pseudonym "John Doe" [#325]. [For further details see text below.]. Mailed notices (gcy, ) (Entered: 06/12/2009)
333 MINUTE entry before the Honorable Matthew F. Kennelly: Status hearing held and continued to 7/2/2009 at 9:30 A.M. It is ordered that the deadline for taking any and all depositions is 6/30/2009. Anyone who doesn't get deposed by 6/30/2009 will not be allowed to testify. Defendant's Motion for miscellaneous relief 328 is entered and continued to 7/2/2009 at 9:30 a.m. Mailed notice by judge's staff. (srb,) (Entered: 06/12/2009)
334 MOTION by Plaintiff Kim Young for default judgment. (gcy, ) (Entered: 06/18/2009)
335 Corrected Fourth AMENDED complaint by Bradley Hytrek, Larry Fisher, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado against all defendants (Kanovitz, Michael) (Entered: 06/18/2009)
336 MOTION by Defendant Michael Sheahan to bar Plaintiffs' Untimely Disclosed Class Representative and Class Member Witnesses or Continue August 3rd Trial Date to Conduct Discovery on Same (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gallagher, Daniel) (Entered: 06/22/2009)
337 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to bar, 336 before Honorable Matthew F. Kennelly on 6/25/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 06/22/2009)
340 MOTION for leave to intervene by George Jenkins. (gcy, ) (Entered: 06/25/2009)
339 MOTION by Movant Mario D Hawkins for reconsideration. (gcy, ) (Entered: 06/25/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 33 of 69

06/24/2009 06/25/2009 06/26/2009
06/26/2009 06/29/2009 07/09/2009 07/09/2009 07/09/2009 07/09/2009 07/10/2009
07/14/2009 07/14/2009 07/14/2009 07/14/2009

338 RESPONSE by Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek, Larry Fisherin Opposition to MOTION by Defendant Michael Sheahan to bar Plaintiffs' Untimely Disclosed Class Representative and Class Member Witnesses or Continue August 3rd Trial Date to Conduct Discovery on Same 336 (Keen, Roshna) (Entered: 06/24/2009)
341 MINUTE entry before the Honorable Matthew F. Kennelly: Hearing held on Motion to bar 337 . Motion is terminated as moot. Motion to continued is denied 336 . Plaintiff has leave of court to file fifth amended complaint. Status hearing set for 7/2/2009 is vacated. (gcy, ) (Entered: 06/26/2009)
342 MINUTE entry before the Honorable Matthew F. Kennelly: The Court denies the motions of Mario D. Hawkins for leave to intervene 303 . Mr Hawkins has not shown that his interests will be inadequately protected by the current parties or class counsel. Mr. Hawkins' motion for leave to proceed in forma pauperis 304 , his motion for "default judgment" 93340, and his motion for reconsideration 339 are also denied. The Clerk is directed to mail a copy of this order to Marco D. Hawkins, No. N−14062, Logan Correctional Center, Box 1000, Lincoln, IL 62656, and is thereafter directed to remove Mr. Hawkins name from the docket as a person entitled to receive notices of court orders, etc. in this case, as that unduly complicates the sending of electronic notices. Mailed notices (gcy, ) (Entered: 06/26/2009)
343 MINUTE entry before the Honorable Matthew F. Kennelly: Enter agreed protective order. [For further detail see separate order(s)]. Mailed notices (gcy, ) (Entered: 06/26/2009)
344 Fifth AMENDED complaint by Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek against all defendants (Kanovitz, Michael) (Entered: 06/29/2009)
345 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Bradley Hytrek, Larry Fisher for leave to file excess pages (Attachments: # 1 Exhibit A, # 2 Errata B)(Keen, Roshna) (Entered: 07/09/2009)
346 NOTICE of Motion by Roshna Bala Keen for presentment of motion for leave to file excess pages, 345 before Honorable Matthew F. Kennelly on 7/14/2009 at 09:30 AM. (Keen, Roshna) (Entered: 07/09/2009)
347 MOTION by Defendants County of Cook, Michael Sheahan to join Plaintiffs' Motion for Leave to File Motions in Limine in Excess of 15 Pages (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 07/09/2009)
348 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to join 347 before Honorable Matthew F. Kennelly on 7/14/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 07/09/2009)
349 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion for leave to file excess pages 345 and defendants' motion to join 347 are granted. Neither side asked for a specific number of excess pages. The Court grants a 50% increase in the page limit, so each side may file motions in limine totaling up to 23 pages. The motions will not be called for hearing on July 14. Mailed notices. (mk) (Entered: 07/10/2009)
350 Defendant Sheriff of Cook County's ANSWER to amended complaint and affirmative defenses to Plaintiffs' Fifth Amended Complaint by Michael Sheahan(Gallagher, Daniel) (Entered: 07/14/2009)
351 NOTICE by Michael Sheahan re answer to amended complaint 350 and affirmative defenses to Plaintiffs' Fifth Amended Complaint. (Gallagher, Daniel) (Entered: 07/14/2009)
352 ANSWER to amended complaint FIFTH by County of Cook(Catania, Francis) (Entered: 07/14/2009)
353 NOTICE by County of Cook (Catania, Francis) (Entered: 07/14/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 34 of 69

07/14/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009
07/15/2009 07/15/2009 07/15/2009 07/16/2009 07/16/2009
07/20/2009 07/20/2009 07/22/2009
07/22/2009 07/22/2009
07/22/2009

354 NOTICE of appeal by Mario D Hawkins regarding order 342 (Due). (yap, ) (Envelope postmarked 7/11/09) Modified on 7/15/2009 (aew, ). (Entered: 07/15/2009)
355 NOTICE of Appeal Due letter sent to counsel of record. (yap, ) (Entered: 07/15/2009)
356 TRANSMITTED to the 7th Circuit the short record on notice of appeal 354 . Notified counsel (yap, ) (Entered: 07/15/2009)
357 MOTION by Defendants County of Cook, Michael Sheahanin limine Nos. 1 through 13 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Gallagher, Daniel) (Entered: 07/15/2009)
358 NOTICE by Michael Sheahan re MOTION by Defendants County of Cook, Michael Sheahanin limine Nos. 1 through 13 357 (Gallagher, Daniel) (Entered: 07/15/2009)
359 MOTION by Plaintiffs Carl Gray, Matthew Liptak, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin limine Nos. 1 − 18 (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)(Kanovitz, Michael) (Entered: 07/15/2009)
361 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 354 ; USCA Case No. 09−2797. (gcy, ) (Entered: 07/16/2009)
362 PLRA FEE NOTICE AND ORDER. USCA 09−2797. (gcy, ) (Entered: 07/16/2009)
363 NOTICE of Case Opening.; USCA 09−2797 (gcy, ) (Entered: 07/16/2009)
360 MINUTE entry before the Honorable Matthew F. Kennelly: The time for the final pretrial conference is advanced to 7/29/2009 at 01:30 PM. Mailed notices. (mk) (Entered: 07/16/2009)
364 MOTION by Plaintiffs Carl Gray, Matthew Liptak, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin limine Corrected Nos. 1 − 18 (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)(Kanovitz, Michael) (Entered: 07/16/2009)
365 PROPOSED Pretrial Order (Keen, Roshna) (Entered: 07/20/2009)
366 NOTICE by all plaintiffs re proposed pretrial order 365 (Keen, Roshna) (Entered: 07/20/2009)
367 RESPONSE by County of Cook, Michael Sheahanin Opposition to MOTION by Plaintiffs Carl Gray, Matthew Liptak, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin limine Corrected Nos. 1 − 18 364 Defendant's Responses to Plaintiffs' Motions in Limine (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Gallagher, Daniel) (Entered: 07/22/2009)
368 NOTICE by Michael Sheahan re response in opposition to motion, 367 Defendant's Response to Plaintiffs' Motions in Limine (Gallagher, Daniel) (Entered: 07/22/2009)
369 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for leave to file excess pages in response to motions in limine instanter (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Keen, Roshna) (Entered: 07/22/2009)
370 NOTICE of Motion by Roshna Bala Keen for presentment of motion for leave to file excess pages, 369 before Honorable Matthew F. Kennelly on 7/29/2009 at 09:30 AM. (Keen, Roshna) (Entered: 07/22/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 35 of 69

07/23/2009 07/23/2009 07/23/2009
07/23/2009 07/24/2009 07/24/2009 07/24/2009 07/24/2009 07/27/2009 07/27/2009
07/27/2009 07/27/2009 07/27/2009

371 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion for leave to exceed page limit 369 is granted. Mailed notices. (mk) (Entered: 07/23/2009)
372 RESPONSE by Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek to MOTION by Defendants County of Cook, Michael Sheahanin limine Nos. 1 through 13 357 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kanovitz, Michael) (Entered: 07/23/2009)
373 MINUTE entry before the Honorable Matthew F. Kennelly: The Court denies George Jenkins' motion for leave to intervene 340 . Mr. Jenkins has failed to show that his interests are not adequately protected by the existing parties to the case. The Clerk is directed to mail a copy of this order to Mr. Jenkins and is thereafter directed to remove his name and address from the docket. Plaintiffs' counsel are directed to advise Mr. Jenkins in writing of any decision on the merits regarding liability with respect to the particular class of which he claims to be a member. Mailed notices (gcy, ) (Entered: 07/23/2009)
MAILED copy of order dated 7/23/09 to George Jenkins at Pinckneyvile Correctional Center. (gcy, ) (Entered: 07/23/2009)
374 MINUTE entry before the Honorable Matthew F. Kennelly: Set/reset hearings: Due to a scheduling problem beyond the Court's control, the time for the pretrial conference is reset to 7/29/2009 at 03:00 PM. The Court apologizes for any inconvenience caused by the rescheduling of the conference. Mailed notices. (mk) (Entered: 07/24/2009)
375 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for leave to file Reply in Support of Motions in Limine 2−4, 6 (Attachments: # 1 Exhibit 1, # 2 Exhibit A)(Keen, Roshna) (Entered: 07/24/2009)
376 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for sanctions (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Kanovitz, Michael) (Entered: 07/24/2009)
377 NOTICE of Motion by Roshna Bala Keen for presentment of motion for sanctions, 376 , motion for leave to file, 375 before Honorable Matthew F. Kennelly on 7/29/2009 at 09:30 AM. (Keen, Roshna) (Entered: 07/24/2009)
378 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion for leave to file reply 375 is denied. The Court is issuing this morning a decision ruling on a number of the parties' motions in limine and identifying which motions require further argument. Mailed notices. (mk) (Entered: 07/27/2009)
379 MINUTE entry before the Honorable Matthew F. Kennelly: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants plaintiffs' and defendants' motions in limine part, denies them in part, and defers them in part for further argument [docket nos. 357,359,364]. The Court terminates, based upon previous rulings in open court, defendants' motion to bar untimely disclosed class representatives or continue the trial date [docket no. 336] and terminate as moot defendants' motion for miscellaneous relief [docket no. 328]. Mailed notices (gcy, ) (Entered: 07/27/2009)
380 MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 7/27/2009:(gcy, ) (Entered: 07/27/2009)
381 ATTORNEY Appearance for Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Bradley Hytrek, Larry Fisher by Cindy Tsai (Tsai, Cindy) (Entered: 07/27/2009)
382 ATTORNEY Appearance for Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Bradley Hytrek, Larry Fisher by Julie Marie Thompson (Thompson, Julie) (Entered: 07/27/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 36 of 69

07/27/2009
07/27/2009 07/27/2009 07/27/2009
07/27/2009 07/28/2009 07/28/2009 07/28/2009 07/29/2009 07/29/2009 07/29/2009
07/30/2009 07/30/2009 08/02/2009
08/03/2009

383 EXHIBIT by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Bradley Hytrek, Larry Fisher regarding MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for sanctions 376 (Keen, Roshna) (Entered: 07/27/2009)
384 MOTION by Defendant Michael Sheahan for reconsideration regarding motion in limine, 364 Defendant's Motion to Reconsider Evidence of IDOC Reports and Duran Monitor (Attachments: # 1 Exhibit − Group Exhibit 1)(Gallagher, Daniel) (Entered: 07/27/2009)
385 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for reconsideration, motion for relief 384 before Honorable Matthew F. Kennelly on 7/29/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 07/27/2009)
386 RESPONSE by Michael Sheahanin Opposition to MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for sanctions 376 Defendant Sheriff of Cook County's Response to Plaintiffs' Motion for Sanctions (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gallagher, Daniel) (Entered: 07/27/2009)
387 NOTICE by Michael Sheahan re response in opposition to motion, 386 Defendant's Response to Plaintiffs' Motion for Sanctions (Gallagher, Daniel) (Entered: 07/27/2009)
388 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek to clarify ruling on Plaintiffs' motion in limine No. 1 (Kanovitz, Michael) (Entered: 07/28/2009)
389 NOTICE of Motion by Michael I Kanovitz for presentment of motion to clarify 388 before Honorable Matthew F. Kennelly on 7/29/2009 at 03:00 PM. (Kanovitz, Michael) (Entered: 07/28/2009)
390 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion for sanctions will be heard at the pretrial conference at 3:00 p.m. on 7/27/09 and will not be called at 9:30 a.m. Mailed notices (gcy, ) (Entered: 07/28/2009)
391 MOTION by Plaintiff Kim Young to amend/correct proposed pretrial order 365 (Keen, Roshna) (Entered: 07/29/2009)
392 NOTICE of Motion by Roshna Bala Keen for presentment of motion to amend/correct, motion for relief 391 before Honorable Matthew F. Kennelly on 7/29/2009 at 03:00 PM. (Keen, Roshna) (Entered: 07/29/2009)
393 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Bradley Hytrek, Larry Fisher to amend/correct MOTION by Plaintiff Kim Young to amend/correct proposed pretrial order 365 391 Corrected Motion to Amend Proposed Pretrial Order (Keen, Roshna) (Entered: 07/29/2009)
394 Defendant's Request to Modify the Prospective Jury Letter by Michael Sheahan − By Thomas Dart, Office of Sheriff of Cook County (Gallagher, Daniel) (Entered: 07/30/2009)
395 NOTICE by Michael Sheahan re other 394 Defendant's Request to Modify the Prospective Jury Letter (Gallagher, Daniel) (Entered: 07/30/2009)
396 RESPONSE by Carl Gray, Matthew Liptak, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek to MOTION by Defendants County of Cook, Michael Sheahanin limine Nos. 1 through 13 357 Supplemental Response to Motion in limine No. 5 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Keen, Roshna) (Entered: 08/02/2009)
397 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial begun. Testimony to begin on 8/4/2009 at 10:00 AM. (or, ) (Entered: 08/03/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 37 of 69

08/03/2009
08/04/2009 08/04/2009 08/04/2009 08/04/2009
08/04/2009 08/05/2009 08/06/2009 08/07/2009 08/07/2009 08/07/2009 08/09/2009 08/09/2009 08/09/2009 08/09/2009 08/10/2009
08/10/2009

402 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion to amend the pretrial order is granted [391 &393], Plaintiff's motion to clarify ruling is terminated; the ruling in question is clarified as stated below 388 . Defendants' motion to reconsider is granted in part and denied in part as stated below 384 . Plaintiffs' motion for sanctions is granted as stated below 376 . The Court makes additional rulings on the parties' motions in limine as stated below. [For further details see text below]. Mailed notices (gcy, ) (Entered: 08/04/2009)
398 Proffer by Carl Gray, Matthew Liptak, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek on Use of Pleadings as Notice (Kanovitz, Michael) (Entered: 08/04/2009)
399 REPLY by Defendant Michael Sheahan Defendant's Supplemental Reply in Support of His Motion in Limine Number 5 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gallagher, Daniel) (Entered: 08/04/2009)
400 NOTICE by Michael Sheahan re reply 399 Defendant's Supplemental Reply in Support of His Motion in Limine Number 5 (Gallagher, Daniel) (Entered: 08/04/2009)
401 RESPONSE by County of Cook, Michael Sheahanin Opposition to MOTION by Plaintiffs Carl Gray, Matthew Liptak, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin limine Nos. 1 − 18 359 Supplement to Response to Plaintiff's Motion in Limine #2 Contraband Reports (Catania, Francis) (Entered: 08/04/2009)
403 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held and continued to 8/5/2009 at 10:00 AM. (or, ) (Entered: 08/05/2009)
404 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held and continued to 8/6/2009 at 10:00 AM. (or, ) (Entered: 08/05/2009)
405 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held and continued to 8/7/2009 at 09:00 AM. (or, ) (Entered: 08/07/2009)
406 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held and continued to 8/10/2009 at 09:45 AM. (or, ) (Entered: 08/07/2009)
407 Proffer of the Testimony of Charles Fasano by Michael Sheahan (Gallagher, Daniel) (Entered: 08/07/2009)
408 NOTICE by Michael Sheahan re other 407 Proffer of the Testimony of Charles Fasano (Gallagher, Daniel) (Entered: 08/07/2009)
409 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek to enforce prior orders (Kanovitz, Michael) (Entered: 08/09/2009)
410 NOTICE of Motion by Michael I Kanovitz for presentment of motion to enforce 409 before Honorable Matthew F. Kennelly on 8/10/2009 at 09:45 AM. (Kanovitz, Michael) (Entered: 08/09/2009)
411 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley HytrekFor In−Trial Curative Jury Instruction (Kanovitz, Michael) (Entered: 08/09/2009)
412 NOTICE of Motion by Michael I Kanovitz for presentment of motion for miscellaneous relief 411 before Honorable Matthew F. Kennelly on 8/10/2009 at 09:45 AM. (Kanovitz, Michael) (Entered: 08/09/2009)
413 RESPONSE by Michael Sheahanin Opposition to MOTION by Plaintiffs Carl Gray, Matthew Liptak, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley HytrekFor In−Trial Curative Jury Instruction 411 Response in Opposition to Plaintiffs' Motion for Curative Instruction (Gallagher, Daniel) (Entered: 08/10/2009)
414 NOTICE by Michael Sheahan re response in opposition to motion, 413 (Gallagher, Daniel) (Entered: 08/10/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 38 of 69

08/10/2009 08/11/2009 08/11/2009 08/11/2009 08/11/2009 08/11/2009 08/12/2009 08/12/2009 08/12/2009
08/12/2009 08/13/2009 08/13/2009
08/13/2009 08/13/2009 08/14/2009
08/21/2009 08/21/2009 08/21/2009 08/21/2009

422 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held and continued to 8/11/2009 at 10:00 AM. (or, ) (Entered: 08/12/2009)
415 MOTION by Defendant Michael Sheahan for judgment Defendant's Motion for Judgment as a Matter of Law (Gallagher, Daniel) (Entered: 08/11/2009)
416 NOTICE by Michael Sheahan re MOTION by Defendant Michael Sheahan for judgment Defendant's Motion for Judgment as a Matter of Law 415 (Gallagher, Daniel) (Entered: 08/11/2009)
417 Defendant's Comments and Requested Jury Instructions by Michael Sheahan (by Defendant, Thomas Dart, Office of the Sheriff of Cook County) (Gallagher, Daniel) (Entered: 08/11/2009)
418 NOTICE by Michael Sheahan re other 417 Defendant's Comments and Requested Jury Instructions (Gallagher, Daniel) (Entered: 08/11/2009)
423 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held and continued to 8/12/2009 at 10:00 AM. (or, ) (Entered: 08/12/2009)
419 Offer of Proof − Contraband Reports by Michael Sheahan (By Defendant, Thomas Dart, Office of the Sheriff of Cook County) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gallagher, Daniel) (Entered: 08/12/2009)
420 NOTICE by Michael Sheahan re other 419 Offer of Proof − Contraband Reports (By Defendant, Thomas Dart, Office of the Sheriff of Cook County) (Gallagher, Daniel) (Entered: 08/12/2009)
421 MINUTE entry before the Honorable Matthew F. Kennelly: The following motions have been ruled upon or otherwise disposed of and are therefore terminated: plaintiffs' and defendants' motions in limine [357, 359, 364]; plaintiffs' motion to enforce prior orders 409 ; and plaintiffs' motion for a curative jury instruction 411 . (mk) (Entered: 08/12/2009)
424 MINUTE entry before the Honorable Matthew F. Kennelly:Jury trial held. Testimony completed, closing arguments held. Deliberation begun and continued to 8/13/2009 at 09:30 AM. (or, ) (Entered: 08/12/2009)
425 JURY Instructions. (gcy, ) (Entered: 08/13/2009)
426 MINUTE entry before the Honorable Matthew F. Kennelly: Jury trial held. Jury reached a verdict. Jury returns its verdict in favor of plaintiffs and against defendants for all three claims. Jury trial completed on 8/13/2009. Post trial motions to be filed by 9/3/2009. Status hearing set for 9/17/2009 at 9:30 A.M. Status hearing set for 9/19/2009 is vacated. Mailed notice by judge's staff. (srb,) (Entered: 08/13/2009)
428 JURY Notes. (RESTRICTED)(gcy, ) (Entered: 08/17/2009)
429 JURY Verdict entered in favor of plaintiffs and against defendants.(RESTRICTED) (gcy, ) (Entered: 08/17/2009)
427 MINUTE entry before the Honorable Matthew F. Kennelly: The order of 8/13/2009 is amended as follows: Status hearing is set for 9/9/2009 at 9:30 A.M. Status hearing set for 9/17/2009 is vacated. Mailed notice by judge's staff. (srb,) (Entered: 08/14/2009)
430 NOTICE of appeal by Michael Sheahan regarding orders 424 Filing fee $ 455, receipt number 07520000000004034224. (Gallagher, Daniel) (Entered: 08/21/2009)
431 NOTICE by Michael Sheahan re notice of appeal 430 (Gallagher, Daniel) (Entered: 08/21/2009)
432 DOCKETING Statement by Michael Sheahan regarding notice of appeal 430 (Gallagher, Daniel) (Entered: 08/21/2009)
433 NOTICE by Michael Sheahan re docketing statement 432 (Gallagher, Daniel) (Entered: 08/21/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 39 of 69

08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/24/2009
08/24/2009 08/24/2009 08/25/2009 08/25/2009 08/25/2009 08/27/2009
08/27/2009 08/27/2009 08/28/2009 08/28/2009

434 MOTION by Defendant Michael Sheahan to stay Defendant's Motion to Stay Proceedings (Gallagher, Daniel) (Entered: 08/21/2009)
435 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to stay 434 before Honorable Matthew F. Kennelly on 9/9/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 08/21/2009)
436 MOTION by Defendant Michael Sheahan for leave to appeal (Interlocutory Appeal) (Gallagher, Daniel) (Entered: 08/21/2009)
437 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for leave to appeal 436 before Honorable Matthew F. Kennelly on 9/9/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 08/21/2009)
441 PLRA C.R. 3(b) FINAL ORDER 354 : DISMISSED for failure to pay the required docketing fee pursuant to Circuit Rule 3(b) ; USCA No. 07−2797. (gcy, ) (Entered: 08/24/2009)
442 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 07−2797. No Record to be returned. (gcy, ) (Entered: 08/24/2009)
438 MINUTE entry before the Honorable Matthew F. Kennelly: On the Court's motion, the case is set for a status hearing on 8/25/2009 at 9:30 a.m. regarding defendants' motion to stay and motion for interlocutory appeal. Counsel should be aware that if the Court determines to set a briefing schedule on either or both of these motions, they should be prepared to file briefs promptly so that the Court can rule on the motions by 9/4/2009 at the latest. Mailed notices. (mk) (Entered: 08/24/2009)
439 NOTICE of Appeal Due letter sent to counsel of record. (gej, ) (Entered: 08/24/2009)
440 TRANSMITTED to the 7th Circuit the short record on notice of appeal 430 . Notified counsel (gej, ) (Entered: 08/24/2009)
443 ATTORNEY Appearance for Defendant Michael Sheahan by Christopher Paul Keleher − Appearance for Defendant, Thomas Dart, Office of the Sheriff of Cook County (Keleher, Christopher) (Entered: 08/25/2009)
444 MINUTE entry before the Honorable Matthew F. Kennelly: Response to motions to stay and for interlocutory appeal is to be filed by 8/31/2009; reply by 9/2/2009. (or, ) (Entered: 08/25/2009)
445 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 430 ; USCA Case No. 09−3092. (mjc, ) (Entered: 08/26/2009)
446 CERTIFIED copy of order dated 8/27/09 from the 7th Circuit regarding notice of appeal 430 ; The Clerk of the District Court of the Northern District of Illinois, Eastern Division is requested to transmit document #429, filed August 13, 2009, to the court for immediate review; Appellate case no. : 09−3092 (gcy, ) (Entered: 08/27/2009)
447 TRANSMITTED to the USCA for the 7th Circuit supplemental record on appeal 430 (USCA no. 09−3092) consisting of 1 flash drive [Doc No. 429(Restricted)]. (gcy, ) (Entered: 08/27/2009)
448 USCA RECEIVED on 8/27/09 the supplemental record consisting of Doc No. 429 (1 Flash Drive) regarding notice of appeal 430 . (gcy, ) (Entered: 08/27/2009)
449 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Bradley Hytrek for leave to file excess pages (Keen, Roshna) (Entered: 08/28/2009)
450 RESPONSE by Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin Opposition to MOTION by Defendant Michael Sheahan to stay Defendant's Motion to Stay Proceedings 434 , MOTION by Defendant Michael Sheahan for leave to appeal (Interlocutory Appeal) 436 (Attachments: # 1 Exhibit A−E)(Kanovitz, Michael) (Entered: 08/28/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 40 of 69

08/31/2009 08/31/2009 09/01/2009

451 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek to amend/correct response in opposition to motion, 450 instanter (Attachments: # 1 Exhibit A, # 2 Exhibit 1)(Kanovitz, Michael) (Entered: 08/31/2009)
452 NOTICE of Motion by Michael I Kanovitz for presentment of motion to amend/correct,, motion for relief, 451 before Honorable Matthew F. Kennelly on 9/3/2009 at 09:30 AM. (Kanovitz, Michael) (Entered: 08/31/2009)
453 TRANSCRIPT OF PROCEEDINGS held on 8/3/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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.

09/01/2009 09/01/2009

Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
454 DOCUMENT entered in error. Modified on 9/2/2009 (kmt, ). (Entered: 09/01/2009)
455 TRANSCRIPT OF PROCEEDINGS held on 8/5/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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.

09/01/2009

Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
456 TRANSCRIPT OF PROCEEDINGS held on 8/6/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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.

09/01/2009

Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
457 TRANSCRIPT OF PROCEEDINGS held on 8/7/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 41 of 69

09/01/2009 09/01/2009 09/01/2009 09/01/2009

Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
458 TRANSCRIPT OF PROCEEDINGS held on 8/10/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.
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.
Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
459 TRANSCRIPT OF PROCEEDINGS held on 8/11/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.
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.
Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
460 TRANSCRIPT OF PROCEEDINGS held on 8/11/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.
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.
Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
461 TRANSCRIPT OF PROCEEDINGS held on 8/13/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.
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.
Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 42 of 69

09/01/2009

462 TRANSCRIPT OF PROCEEDINGS held on 8/12/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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.

09/01/2009

Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Ward, Frances) (Entered: 09/01/2009)
463 TRANSCRIPT OF PROCEEDINGS held on 8/12/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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.

09/02/2009

Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Brennan, Laura) (Entered: 09/01/2009)
464 TRANSCRIPT OF PROCEEDINGS held on 8/4/09 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−427−4393, Laura_M_Brennan@ilnd.uscourts.gov.

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.

09/02/2009 09/02/2009
09/02/2009 09/02/2009 09/02/2009

Redaction Request due 9/23/2009. Redacted Transcript Deadline set for 10/5/2009. Release of Transcript Restriction set for 12/1/2009. (Brennan, Laura) (Entered: 09/02/2009)
465 NOTICE of Correction regarding transcript 454 . (kmt, ) (Entered: 09/02/2009)
466 RESPONSE by Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin Opposition to MOTION by Defendant Michael Sheahan to stay Defendant's Motion to Stay Proceedings 434 , MOTION by Defendant Michael Sheahan for leave to appeal (Interlocutory Appeal) 436 (Attachments: # 1 Exhibit A−E)(Kanovitz, Michael) (Entered: 09/02/2009)
467 REPLY by Michael Sheahan to response in opposition to motion, 466 − Sheriff's Reply in Support of Motion for Interlocutory Appeal and Motion for Stay (Gallagher, Daniel) (Entered: 09/02/2009)
468 NOTICE by Michael Sheahan re reply to response to motion 467 − Defendant, Thomas Dart, Office of the Sheriff of Cook County's Reply in Support of Motion for Interlocutory Appeal and Motion for Stay (Gallagher, Daniel) (Entered: 09/02/2009)
469 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion to file corrected response is granted. Mailed notices (gcy, ) (Entered: 09/03/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 43 of 69

09/03/2009
09/03/2009
09/03/2009 09/09/2009
09/09/2009 09/09/2009 09/09/2009 09/15/2009
09/15/2009 09/15/2009 09/17/2009 09/17/2009 09/22/2009 10/02/2009
10/02/2009 10/06/2009
10/16/2009

470 MOTION by Defendant Michael Sheahan for judgment − The Sheriff's Motion for Judgment as a Matter of Law or a New Trial, MOTION by Defendant Michael Sheahan for new trial (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gallagher, Daniel) (Entered: 09/03/2009)
471 NOTICE by Michael Sheahan re MOTION by Defendant Michael Sheahan for judgment − The Sheriff's Motion for Judgment as a Matter of Law or a New TrialMOTION by Defendant Michael Sheahan for new trial 470 (Gallagher, Daniel) (Entered: 09/03/2009)
472 ADMITTED TRIAL EXHIBITS by defendants. (RESTRICTED)(gcy, ) (Entered: 09/04/2009)
473 MINUTE entry before the Honorable Matthew F. Kennelly: Status hearing held. Ruling on motions to stay and for leave to appeal will be made by mail (434, 436). Response to motion for judgment as a matter of law and for a new trial is to be filed by 10/9/09; reply brief is to be filed by 10/23/09 (470). Plaintiffs exhibits 10J, 10K, 10L, 10N and 10P are to be filed under seal. (or, ) (Entered: 09/10/2009)
474 ADMITTED TRIAL EXHIBITS by Plaintiffs ; Notice(gcy, ) (Entered: 09/10/2009)
475 TRIAL EXHIBITS 10J,10K,10L,10N and 10P by Plaintiffs. (RESTRICTED)(gcy, ) (Entered: 09/10/2009)
476 SEVENTH CIRCUIT transcript information sheet. (gcy, ) (Entered: 09/11/2009)
477 MINUTE entry before the Honorable Matthew F. Kennelly: For the reasons stated in the accompanying Memorandum Opinion and order, the Court concludes that defendant's interlocutory appeal of the denial of his Rule 50 motion is frivolous and therefore denies his motion to stay proceedings in this Court pending that appeal 434 . Mailed notices (gcy, ) (Entered: 09/15/2009)
478 MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 9/15/2009:(gcy, ) (Entered: 09/16/2009)
480 MOTION to intervene by Anthony Wheeler &Leonard Davis. (gcy, ) (Entered: 09/18/2009)
479 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 430 , 354 (USCA no. 09−2797, 09−3092). (gej, ) (Entered: 09/17/2009)
481 MINUTE entry before the Honorable Matthew F. Kennelly: The pro se motion of Anthony Wheeler and Leonard Davis to intervene is denied for the reasons stated below. Mailed notices (gcy, ) (Entered: 09/18/2009)
482 USCA RECEIVED on 9/22/2009 the long record regarding notice of appeal 430 , notice of appeal 354 . (gej, ) (Entered: 09/24/2009)
483 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, John Doe, Bradley Hytrek for extension of time and for leave to file excess pages (Liskow, Samantha) (Entered: 10/02/2009)
484 NOTICE of Motion by Samantha Liskow for presentment of extension of time 483 before Honorable Matthew F. Kennelly on 10/7/2009 at 09:30 AM. (Liskow, Samantha) (Entered: 10/02/2009)
485 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion for extension of time and to file excess pages 483 is granted; response to post−trial motion may be up to 25 pages and is to be filed by 10/16/09. Due date for reply is extended to 10/30/09. (mk) (Entered: 10/06/2009)
486 RESPONSE by Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrekin Opposition to MOTION by Defendant Michael Sheahan for judgment − The Sheriff's Motion for Judgment as a Matter of Law or a New TrialMOTION by Defendant Michael Sheahan for new trial 470 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Liskow, Samantha) (Entered: 10/16/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 44 of 69

10/30/2009 10/30/2009 11/06/2009 11/06/2009
11/13/2009 11/16/2009 11/16/2009 11/16/2009 11/17/2009
11/18/2009
12/01/2009 12/01/2009 12/03/2009 12/10/2009 12/10/2009

487 REPLY by Michael Sheahan to response in opposition to motion, 486 − Sheriff's Reply in Support of Motion for Judgment as a Matter of Law or a New Trial. (Gallagher, Daniel) (Entered: 10/30/2009)
488 NOTICE by Michael Sheahan re reply to response to motion 487 − Sheriff's Reply in Support of Motion for Judgment as a Matter of Law or a New Trial. (Gallagher, Daniel) (Entered: 10/30/2009)
489 MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for leave to file supplement (Liskow, Samantha) (Entered: 11/06/2009)
490 NOTICE by Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek re MOTION by Plaintiffs Carl Gray, Matthew Liptak, Kim Young, William Jones, Ronald Johnson, Allen Gorman, Gerrad Lamour, Lee Mercado, Bradley Hytrek for leave to file supplement 489 (Liskow, Samantha) (Entered: 11/06/2009)
491 NOTICE of Motion by Samantha Liskow for presentment of motion for leave to file 489 before Honorable Matthew F. Kennelly on 11/18/2009 at 09:45 AM. (Liskow, Samantha) (Entered: 11/13/2009)
492 AMENDED NOTICE of Motion by Samantha Liskow for presentment of motion for leave to file 489 before Honorable Matthew F. Kennelly on 11/18/2009 at 09:30 AM. (Liskow, Samantha) (Entered: 11/16/2009)
493 MOTION by Plaintiff Lee Mercado to Appoint a Special Master for the Damages Phase of the Case (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 11/16/2009)
494 NOTICE of Motion by Michael I Kanovitz for presentment of motion for miscellaneous relief 493 before Honorable Matthew F. Kennelly on 11/19/2009 at 09:30 AM. (Kanovitz, Michael) (Entered: 11/16/2009)
495 MINUTE entry before the Honorable Matthew F. Kennelly: For the reasons stated below, the Court denies defendant's motion for judgment as a matter of law of for a new trial [#470]. The Court directs the Clerk to terminate motion 415 and 436, upon which the Court previously ruled. [For further details see text below]. Mailed notices (gcy, ) (Entered: 11/18/2009)
496 MINUTE entry before the Honorable Matthew F. Kennelly: Motion hearing held. Motion by plaintiffs for leave to file a supplement 489 is denied for the reasons stated in open court. Motion by plaintiff to appoint a Special Master 493 is entered and continued to 12/03/09 at 9:30 a.m. Defendant is to file a response to motion to appoint a special master 493 by 12/01/09. Motion hearing date of 11/19/09 is vacated. Mailed notice (lcw, ) (Entered: 11/18/2009)
497 RESPONSE by Michael Sheahanin Opposition to MOTION by Plaintiff Lee Mercado to Appoint a Special Master for the Damages Phase of the Case 493 − Sheriff Dart's Response to Plaintiffs' Motion to Appoint a Special Master (Gallagher, Daniel) (Entered: 12/01/2009)
498 NOTICE by Michael Sheahan re response in opposition to motion, 497 − Sheriff Dart's Response to Plaintiffs' Motion to Appoint a Special Master (Gallagher, Daniel) (Entered: 12/01/2009)
499 MINUTE entry before the Honorable Matthew F. Kennelly:Motion to appoint special master 493 is denied without prejudice. Jury Trial set for 3/29/2010 at 09:30 AM. Status hearing set for 12/14/2009 at 09:30 AM. (or, ) (Entered: 12/05/2009)
500 MOTION by Defendant Michael Sheahan to clarify − Sheriff's Motion to Clarify Damages Schedule/Reset Damages Trial. (Gallagher, Daniel) (Entered: 12/10/2009)
501 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to clarify 500 before Honorable Matthew F. Kennelly on 12/16/2009 at 09:30 AM. (Gallagher, Daniel) (Entered: 12/10/2009)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 45 of 69

12/11/2009
12/11/2009
12/14/2009 12/14/2009 01/07/2010 01/13/2010
01/13/2010 01/13/2010
01/13/2010
01/13/2010 01/14/2010 01/14/2010 01/25/2010 01/29/2010

502 MINUTE entry before the Honorable Matthew F. Kennelly: On the Court's motion, the hearing date on defendant's "motion to clarify damages schedule / reset damages trial" is advanced to the status hearing date previously set for 12/14/2009 at 9:30 a.m. The Court is e−mailing the parties, under separate cover, a minute order that will be entered later today regarding pretrial procedures and the issues to be discussed at the 12/14/09 hearing. (mk) (Entered: 12/11/2009)
503 MINUTE entry before the Honorable Matthew F. Kennelly: The Court issues the following preliminary ruling regarding the pretrial procedures to be followed with regard to the damage trials. Counsel should be prepared to address these points (as well as any other pertinent issues) at the 12/14/09 status hearing. [For further details see text below]. Mailed notices (gcy, ) (Entered: 12/11/2009)
504 MINUTE entry before Honorable Matthew F. Kennelly: Defendant's motion to clarify or reset damages trial 500 is denied for the reasons stated in open court on 12/14/09 and in the court's order of 12/11/09. (mk) (Entered: 12/14/2009)
505 MINUTE entry before Honorable Matthew F. Kennelly: Status hearing held and continued to 1/7/2010 at 09:30 AM. (or, ) (Entered: 12/16/2009)
506 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 1/14/2010 at 09:30 AM. (or, ) (Entered: 01/07/2010)
507 MOTION by Defendant Michael Sheahan to compel − Defendant's Motion to Overrule Objections and Compel Answers to Discovery (Attachments: # 1 Exhibit A, # 3 Exhibit C, # 4 Exhibit D)(Gallagher, Daniel) # 5 Exhibit B (removed per court order dated 1/15/2010)) (mjc, ). Modified on 1/19/2010 (mjc, ). (Entered: 01/13/2010)
508 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to compel 507 before Honorable Matthew F. Kennelly on 1/20/2010 at 09:30 AM. (Gallagher, Daniel) (Entered: 01/13/2010)
509 MINUTE entry before Honorable Matthew F. Kennelly: The Court directs plaintiffs to file a written response to the motion to compel by 4:30 p.m. on 1/19/10. The Court's intention is to rule on the motion at the hearing set for 1/20/10. In the response, plaintiffs should (in addition to whatever else they want to say) describe the nature of the damages−related testimony that they intend to offer from the plaintiffs and their other damages−related witnesses at the upcoming trials. (mk) (Entered: 01/13/2010)
510 MINUTE entry before Honorable Matthew F. Kennelly: After entering the order earlier today directing plaintiffs to respond to the motion to compel by 1/19/10, the Court realized that the case is set for a status hearing tomorrow, 1/14/10. The Court will be prepared to rule on the motion to compel at tomorrow's status hearing if plaintiffs are in a position to address it orally at that time. (mk) (Entered: 01/13/2010)
511 REPLY by Lee Mercado to MOTION by Defendant Michael Sheahan to compel − Defendant's Motion to Overrule Objections and Compel Answers to Discovery 507 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kanovitz, Michael) (Entered: 01/13/2010)
512 MINUTE entry before Honorable Matthew F. Kennelly:Motion to compel 507 is denied in party as stated in open court. Status hearing held and continued to 1/25/2010 at 09:30 AM. (or, ) (Entered: 01/15/2010)
513 MINUTE entry before Honorable Matthew F. Kennelly: Clerk of Court is directed to remove the image of exhibit B to document 507 from the docket.Mailed notice (mjc, ) (Entered: 01/19/2010)
514 MINUTE entry before Honorable Matthew F. Kennelly: Status hearing held and continued to 2/9/2010 at 9:30 A.M. Mailed notices (gcy, ) (Entered: 01/26/2010)
515 MOTION by Plaintiffs Ronald Johnson, William Jones, Kim Young to strike portions of Defendants' 66 Witness Disclosures and Compel a Better Explanation of the Expected Testimony (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Kanovitz, Michael) (Entered: 01/29/2010)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 46 of 69

01/29/2010 02/01/2010
02/01/2010 02/04/2010 02/08/2010 02/08/2010 02/09/2010 02/09/2010 02/10/2010 02/11/2010 02/17/2010
02/17/2010 02/19/2010 02/19/2010 02/21/2010 02/21/2010

516 NOTICE of Motion by Michael I Kanovitz for presentment of motion to strike, 515 before Honorable Matthew F. Kennelly on 2/4/2010 at 09:30 AM. (Kanovitz, Michael) (Entered: 01/29/2010)
517 RESPONSE by Michael Sheahanin Opposition to MOTION by Plaintiffs Ronald Johnson, William Jones, Kim Young to strike portions of Defendants' 66 Witness Disclosures and Compel a Better Explanation of the Expected Testimony 515 Defendant's Response to Plaintiffs' Motion to Strike Portions of Defendant's Rule 26(a)1 Disclosures (Gallagher, Daniel) (Entered: 02/01/2010)
518 NOTICE by Michael Sheahan re response in opposition to motion, 517 (Gallagher, Daniel) (Entered: 02/01/2010)
519 MINUTE entry before Honorable Matthew F. Kennelly: Hearing held on motion to strike (515). Motion is entered and continued to 2/9/2010 at 9:30 a.m. Mailed notices (gcy, ) (Entered: 02/05/2010)
520 MOTION by Defendant Michael Sheahan to compel an Executed HIPAA Authorization (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gallagher, Daniel) (RESTRICTED). Modified on 2/11/2010 (gcy, ). (Entered: 02/08/2010)
521 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to compel 520 before Honorable Matthew F. Kennelly on 2/11/2010 at 09:30 AM. (Gallagher, Daniel) (Entered: 02/08/2010)
522 MINUTE entry before Honorable Matthew F. Kennelly:Motion to compel 520 is granted. Status hearing held. Motion to strike is continued to 2/10/2010 at 09:30 AM. (or, ) (Entered: 02/09/2010)
523 MEMORANDUM by Ronald Johnson, William Jones, Lee Mercado, Kim Young in support of motion to strike, 515 (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 02/09/2010)
524 MINUTE entry before Honorable Matthew F. Kennelly: Hearing held on motion to strike (515). Response and supplemental memorandum to motion are to be filed by 2/17/2010. Ruling set for 2/22/2010 at 10:00 a.m. Mailed notices Attachments>(gcy, ) (Entered: 02/11/2010)
525 MINUTE entry before Honorable Matthew F. Kennelly: The Clerk of the Court is directed to remove the PDF from docket entry 520 and place it under seal. Mailed notice (lcw, ) (Entered: 02/11/2010)
526 RESPONSE by Michael Sheahanin Opposition to MOTION by Plaintiffs Ronald Johnson, William Jones, Kim Young to strike portions of Defendants' 66 Witness Disclosures and Compel a Better Explanation of the Expected Testimony 515 − Defendant's Supplemental Response to Plaintiffs' Motion to Strike (Gallagher, Daniel) (Entered: 02/17/2010)
527 NOTICE by Michael Sheahan re response in opposition to motion, 526 − Defendant's Supplemental Repsonse to Plaintiffs' Motion to Strike (Gallagher, Daniel) (Entered: 02/17/2010)
528 MOTION by Defendant Michael Sheahan to bar Plaintiffs' Expert or in the Alternative to Extend − Defendant's Motion to Bar Plaintiffs' Expert or in the Alternative to Extend (Gallagher, Daniel) (Entered: 02/19/2010)
529 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to bar 528 before Honorable Matthew F. Kennelly on 2/24/2010 at 09:30 AM. (Gallagher, Daniel) (Entered: 02/19/2010)
530 MOTION by Plaintiff Lee Mercado to expedite Defendants' response to one interrogatory (Kanovitz, Michael) (Entered: 02/21/2010)
531 NOTICE of Motion by Michael I Kanovitz for presentment of motion to expedite 530 , motion to strike, 515 before Honorable Matthew F. Kennelly on 2/24/2010 at 09:30 AM. (Kanovitz, Michael) (Entered: 02/21/2010)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 47 of 69

02/22/2010 02/23/2010 02/24/2010 02/24/2010
03/01/2010 03/01/2010 03/01/2010 03/02/2010 03/04/2010 03/09/2010 03/10/2010 03/11/2010 03/12/2010 03/12/2010 03/15/2010 03/16/2010

532 MINUTE entry before Honorable Matthew F. Kennelly: Hearing held on balance of motion to strike. Motion 515 is denied without prejudice. Status hearing set for 2/24/2010 at 10:30 AM. (or, ) (Entered: 02/22/2010)
533 MEMORANDUM by Lee Mercado in Opposition to motion to bar 528 (Attachments: # 1 Exhibit Gilligan Report)(Kanovitz, Michael) (Entered: 02/23/2010)
534 MINUTE entry before Honorable Matthew F. Kennelly: Plaintiffs' motion to expedite response to a single interrogatory 530 is entered and continued generally; plaintiffs must promptly advise the court if they seek a ruling on the motion. Status hearing set for 3/10/2010 at 9:30 a.m. (mk) (Entered: 02/24/2010)
535 MINUTE entry before Honorable Matthew F. Kennelly: Order for 05 C 552, Young v. Cook County:For the reasons stated in open court, defendant's motion to bar plaintiff's expert is denied without prejudice to filing a motion in limine, but defendant's alternative motion to extend is granted. The deadline for defendant's Rule 26(a)(2) disclosures is extended to 3/12/10, with the condition that any experts identified by defendants in their Rule 26(a)(2) disclosures must be made available for deposition during the week of 3/15/10. The deadline for submitting lists of witnesses and exhibits and objections to the same, as well as proposed issues−related jury instructions, is 3/22/10. Final pretrial conference is set to 3/26/10 at 1:30 p.m. (or, ) (Entered: 02/25/2010)
536 MOTION by Defendant Michael Sheahan for rule to show cause for Dr. Robert Owens (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Sharifi, Ghazal) (Entered: 03/01/2010)
537 NOTICE of Motion by Ghazal Sharifi for presentment of motion for rule to show cause 536 before Honorable Matthew F. Kennelly on 3/4/2010 at 09:30 AM. (Sharifi, Ghazal) (Entered: 03/01/2010)
538 ATTORNEY Appearance for Defendant Michael Sheahan by Ghazal Sharifi (Sharifi, Ghazal) (Entered: 03/01/2010)
539 ATTORNEY Appearance for Plaintiffs John Doe, Larry Fisher, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young by Aaron S. Mandel (Mandel, Aaron) (Entered: 03/02/2010)
540 MINUTE entry before Honorable Matthew F. Kennelly:Motion hearing held on 3/4/2010 regarding motion for rule to show cause[536. Motion is granted. Hearing set for 3/10/2010 at 09:30 AM. (or, ) (Entered: 03/08/2010)
541 MINUTE entry before Honorable Matthew F. Kennelly: Rule to show cause hearing is vacated. Status hearing set for 3/10/2010 to stand. (or, ) (Entered: 03/09/2010)
542 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 3/15/2010 at 09:30 AM. Settlement Conference set for 3/16/2010 at 03:30 PM. (or, ) (Entered: 03/10/2010)
543 MINUTE entry before Honorable Matthew F. Kennelly: Settlement Conference reset to 3/18/2010 at 03:15 PM. (or, ) (Entered: 03/11/2010)
544 MOTION by Plaintiffs Ronald Johnson, William Jones, Kim Young to compel defendants' discovery responses (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Keen, Roshna) (Entered: 03/12/2010)
545 NOTICE of Motion by Roshna Bala Keen for presentment of motion to compel 544 before Honorable Matthew F. Kennelly on 3/15/2010 at 09:30 AM. (Keen, Roshna) (Entered: 03/12/2010)
546 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 3/16/2010 at 10:15 AM. (or, ) (Entered: 03/15/2010)
547 MINUTE entry before Honorable Matthew F. Kennelly: Status hearing held. For the reasons stated in open court, plaintiffs' motion to compel 544 is denied as to the

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 48 of 69

03/16/2010 03/18/2010
03/18/2010
03/22/2010 03/22/2010 03/22/2010
03/22/2010
03/22/2010 03/22/2010 03/22/2010 03/22/2010 03/22/2010 03/22/2010 03/22/2010
03/22/2010 03/22/2010 03/22/2010 03/22/2010 03/22/2010 03/22/2010

issues regarding the February 26 interrogatories and is otherwise entered and continued to 3/18/2010 at 3:15 PM. (mk) (Entered: 03/16/2010)
548 MINUTE entry before Honorable Matthew F. Kennelly:Motion hearing held on 3/16/2010 regarding motion to compel 544 . (or, ) (Entered: 03/16/2010)
549 MINUTE entry before Honorable Matthew F. Kennelly: Plaintiffs' motion to compel is set for argument and ruling on 3/22/2010 at 9:30 AM. (mk) (Entered: 03/18/2010)
550 MINUTE entry before Honorable Matthew F. Kennelly: Settlement conference held. Settlement does not appear to be possible at this time. Mailed notices (gcy, ) (Entered: 03/19/2010)
551 MINUTE entry before Honorable Matthew F. Kennelly:Motion to compel 544 is terminated. (or, ) (Entered: 03/22/2010)
552 MOTION by Defendant Michael Sheahanin limine − Defendant's Motions in Limine Nos.1 through 6 (Gallagher, Daniel) (Entered: 03/22/2010)
553 MOTION by Defendant Michael Sheahanin limine − Defendant's Amended Motions in Limine Nos. 1 through 6 (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 03/22/2010)
554 NOTICE by Michael Sheahan re MOTION by Defendant Michael Sheahanin limine − Defendant's Amended Motions in Limine Nos. 1 through 6 553 (Gallagher, Daniel) (Entered: 03/22/2010)
555 WITNESS List by Michael Sheahan (Gallagher, Daniel) (Entered: 03/22/2010)
556 Exhibit List − Defendant's Exhibit List − Defendant Office of the Sheriff of Cook County by Michael Sheahan. (Gallagher, Daniel) (Entered: 03/22/2010)
557 OBJECTIONS − Defendant's Objections to Plaintiffs' Witness List (Gallagher, Daniel) (Entered: 03/22/2010)
558 OBJECTIONS − Defendant's Objections to Plaintiffs' Exhibit List (Gallagher, Daniel) (Entered: 03/22/2010)
559 Statement of the Case by Michael Sheahan − Defendant Office of the Sheriff of Cook County (Gallagher, Daniel) (Entered: 03/22/2010)
560 PROPOSED Jury Instructions by Michael Sheahan (Gallagher, Daniel) (Entered: 03/22/2010)
561 NOTICE by Michael Sheahan re objections 558 , objections 557 , other 559 , witness list 555 , exhibit list 556 , proposed jury instructions 560 − Defendant's Witness List, Defendant's Exhibit List, Defendant's Objections to Plaintiffs' Witness List, Defendant's Objections to Plaintiffs' Exhibit List, Statement of the Case, and Defendant's Proposed Jury Instructions (Gallagher, Daniel) (Entered: 03/22/2010)
562 Exhibit List by Ronald Johnson, William Jones, Kim Young. (Keen, Roshna) (Entered: 03/22/2010)
563 WITNESS List by Ronald Johnson, William Jones, Kim Young (Keen, Roshna) (Entered: 03/22/2010)
564 OBJECTIONS by Ronald Johnson, William Jones, Kim Young to witness list 555 (Keen, Roshna) (Entered: 03/22/2010)
565 OBJECTIONS by Ronald Johnson, William Jones, Kim Young to exhibit list 556 (Keen, Roshna) (Entered: 03/22/2010)
566 PROPOSED Jury Instructions by Ronald Johnson, William Jones, Kim Young (Keen, Roshna) (Entered: 03/22/2010)
567 MOTION by Plaintiffs Ronald Johnson, William Jonesin limine (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, # 15 Exhibit O, # 16 Exhibit P, # 17

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 49 of 69

03/22/2010 03/22/2010
03/24/2010
03/24/2010 03/24/2010 03/25/2010
03/25/2010 03/25/2010
03/26/2010 03/29/2010 03/30/2010 03/31/2010 03/31/2010 04/01/2010 04/05/2010 04/06/2010

Exhibit Q)(Keen, Roshna) (Entered: 03/22/2010)
568 Statement of the Case by Ronald Johnson, William Jones, Kim Young (Keen, Roshna) (Entered: 03/22/2010)
569 NOTICE by Ronald Johnson, William Jones, Kim Young re witness list 563 , proposed jury instructions 566 , other 568 , objections 565 , MOTION by Plaintiffs Ronald Johnson, William Jonesin limine 567 , exhibit list 562 , objections 564 (Keen, Roshna) (Entered: 03/22/2010)
570 RESPONSE by John Doe, Larry Fisher, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Youngin Opposition to MOTION by Defendant Michael Sheahanin limine − Defendant's Motions in Limine Nos.1 through 6 552 , MOTION by Defendant Michael Sheahanin limine − Defendant's Amended Motions in Limine Nos. 1 through 6 553 PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION IN LIMINE NO. 1 TO STRIKE DR. JAMES GILLIGAN (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 C)(Kanovitz, Michael) (Entered: 03/24/2010)
571 OBJECTIONS to Defendant's Jury Instructions (Keen, Roshna) (Entered: 03/24/2010)
572 AMENDED Exhibit A to Response in Opposition to Motion in limine to bar Dr. James Gilligan (Keen, Roshna) (Entered: 03/24/2010)
573 RESPONSE by Michael Sheahanin Opposition to MOTION by Plaintiffs Ronald Johnson, William Jonesin limine 567 − Defendant's Response to Plaintiffs' Motions in Limine for the Damages Trials (Gallagher, Daniel) (Entered: 03/25/2010)
574 OBJECTIONS by Michael Sheahan to proposed jury instructions 566 − Defendant's Objections to Plaintiffs' Jury Instructions for the Damages Trial (Attachments: # 1 Exhibit A)(Gallagher, Daniel) (Entered: 03/25/2010)
575 NOTICE by Michael Sheahan re objections 574 , response in opposition to motion 573 − Defendant's Response to Plaintiffs' Motions in Limine for the Damages Trials and Defendant's Objections to Plaintiffs' Jury Instructions for the Damages Trial (Gallagher, Daniel) (Entered: 03/25/2010)
576 MINUTE entry before Honorable Matthew F. Kennelly: Final pretrial conference held. Ruling held on motions in limine 552 553 567 . (or, ) (Entered: 03/26/2010)
577 MINUTE entry before Honorable Matthew F. Kennelly: Summary jury trial regarding damages as to plaintiffs Daniel Coleman, Allen Gorman and Robert Brown held and continued to 3/30/2010 at 10:00 A.M. (or, ) (Entered: 04/01/2010)
578 MINUTE entry before Honorable Matthew F. Kennelly: Summary jury trial regarding damages as to plaintiffs Daniel Coleman, Allen Gorman and Robert Brown held and continued to 3/31/2010 at 10:00 AM. (or, ) (Entered: 04/01/2010)
579 MINUTE entry before Honorable Matthew F. Kennelly: Summary jury trial regarding damages as to plaintiffs Daniel Coleman, Allen Gorman and Robert Brown held and concluded. (or, ) (Entered: 04/01/2010)
580 MINUTE entry before Honorable Matthew F. Kennelly: Jury selection for Summary jury trial regarding damages held. Jury trial continued to 4/1/2010 at 10:00 A.M. (or, ) (Entered: 04/01/2010)
581 MINUTE entry before Honorable Matthew F. Kennelly: Summary trial on damages held and continued to 4/5/2010 at 10:00 AM. (or, ) (Entered: 04/01/2010)
583 MINUTE entry before Honorable Matthew F. Kennelly: Summary trial on damages held and concluded. (or, ) (Entered: 04/08/2010)
584 MINUTE entry before Honorable Matthew F. Kennelly:Summary jury trial on damages begun and continued to 4/7/2010 at 10:00 AM. (or, ) (Entered: 04/08/2010)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 50 of 69

04/07/2010 04/08/2010 04/08/2010
04/13/2010

585 MINUTE entry before Honorable Matthew F. Kennelly:Summary jury trial on damages completed on 4/7/2010. Deliberations begun and continued to 4/8/2010 at 9:00 A.M. (or, ) (Entered: 04/08/2010)
582 PROPOSED Jury Instructions by County of Cook, Michael Sheahan (Catania, Francis) (Entered: 04/08/2010)
586 MINUTE entry before Honorable Matthew F. Kennelly: The case is set for status hearing on 4/19/2010 at 09:30 a.m., to address, among other things, setting a date for a continued settlement conference with appropriate representatives present; the disposition of and entry of appropriate judgment(s) on the claims that were tried from 3/29/10 through 4/7/10; and the setting of a post−trial motion due date and briefing schedule on those claims; as well as any other matters the parties wish to address. Mailed notices (gcy, ) (Entered: 04/09/2010)
587 TRANSCRIPT OF PROCEEDINGS held on 1/14/2010 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.

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.

04/13/2010

Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
588 TRANSCRIPT OF PROCEEDINGS held on 3/29/10 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.

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.

04/13/2010

Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
589 TRANSCRIPT OF PROCEEDINGS held on 3/30/10 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.

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.

04/13/2010

Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
590 TRANSCRIPT OF PROCEEDINGS held on 3/31/10 before the Honorable Matthew F. Kennelly. A.M.. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.

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

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 51 of 69

04/13/2010
04/13/2010
04/13/2010
04/19/2010 04/20/2010 04/27/2010 04/28/2010 04/28/2010

Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
591 TRANSCRIPT OF PROCEEDINGS held on 3/31/10 before the Honorable Matthew F. Kennelly. P.M. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.
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.
Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
592 TRANSCRIPT OF PROCEEDINGS before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.
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.
Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
593 TRANSCRIPT OF PROCEEDINGS held on 4/5/10 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Valarie M. Ramsey, (708)−860−8482, valharam@aol.com.
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.
Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (kmt, ) (Entered: 04/13/2010)
594 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held. Settlement Conference set for 4/29/2010 at 10:30 AM. Plaintiff's position papers are to be submitted in camera by 4/26/2010. (or, ) (Entered: 04/19/2010)
TRANSMITTED to the USCA for the 7th Circuit supplemental record on appeal 430 (USCA no. 09−02797consisting of 5 volumes of transcripts Doc. nos. 587 thru 593, (gcy, ) (Entered: 04/21/2010)
595 RECEIVED by USCA on 4/27/10 the Supplemental record. USCA no. 09−3092. (gcy, ) (Entered: 04/28/2010)
598 CERTIFIED copy of order dated 04/28/10 from the 7th Circuit regarding notice of appeal 430 ; The slip opinion of this court issued on April 28, 2010, is amended as follows: Page 1, first line opinion, change "detailed" to "detained" ; Appellate case no. : 09−3092. (gcy, ) (Entered: 05/21/2010)
599 MANDATE of USCA dated 4/28/10 regarding notice of appeal 430 ; Final Judgment ; USCA No. 09−3092. (gcy, ) (Entered: 05/21/2010)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 52 of 69

04/28/2010 04/29/2010 05/10/2010 05/20/2010 06/04/2010 06/08/2010 06/25/2010 07/09/2010 07/15/2010
07/16/2010 07/26/2010 07/26/2010 07/26/2010 07/29/2010
08/09/2010 08/09/2010

600 OPINION from the. USCA for the 7th Circuit; Argued 4/5/10; Decided 4/28/10 in USCA case no. 09−3092 (gcy, ) (Entered: 05/21/2010)
596 MINUTE entry before Honorable Matthew F. Kennelly:Settlement conference held and continued to 5/10/2010 at 03:00 PM., and to 5/17/2010 at 02:00 PM. (or, ) (Entered: 04/29/2010)
597 MINUTE entry before Honorable Matthew F. Kennelly:Continued Settlement conference held. Settlement conference date of 5/17/2010 is vacated and reset to 6/4/2010 at 03:00 PM. (or, ) (Entered: 05/10/2010)
601 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 09−3092. No record to be returned. (gcy, ) (Entered: 05/21/2010)
602 MINUTE entry before Honorable Matthew F. Kennelly:Settlement conference held and continued to the following two dates: 6/11/2010 at 03:00 PM., and 6/25/2010 at 03:30 PM. (or, ) (Entered: 06/04/2010)
603 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 09−3092 consisting of 1 Transcript, 1 Exhibit and 2 Sealed Envelopes. (gcy, ) (Entered: 06/14/2010)
604 MINUTE entry before Honorable Matthew F. Kennelly: Settlement conference held on 6/25/2010 and continued to 7/9/2010 at 3:30 P.M. Mailed notice by judge's staff. (srb,) (Entered: 06/28/2010)
605 MINUTE entry before Honorable Matthew F. Kennelly:Settlement conference held and continued to 7/16/2010 at 03:30 PM. County Board representative is to be present. (or, ) (Entered: 07/09/2010)
607 MINUTE entry before Honorable Matthew F. Kennelly: Telephone conference held with attorneys for both sides. Settlement conference set for this date is vacated because a prerequisite to the conference did not take place as planned. The settlement conference is reset to 7/29/10 at 3:00 p.m., with a County Board representative or representatives to be present. (or, ) (Entered: 07/19/2010)
606 MINUTE entry before Honorable Matthew F. Kennelly: The parties are directed to comment in writing by 7/26/2010 to the proposed judgment order set forth below. [For further details see text below]. Mailed notices (gcy, ) (Entered: 07/19/2010)
608 RESPONSE by Defendant Michael Sheahan to text entry 606 Defendant Sheriff of Cook County's Response to This Court's Proposed Judgment Order (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 07/26/2010)
609 NOTICE by Michael Sheahan re Response 608 (Gallagher, Daniel) (Entered: 07/26/2010)
610 RESPONSE by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to text entry 606 to Court's proposed order (Kanovitz, Michael) (Entered: 07/26/2010)
611 MINUTE entry before Honorable Matthew F. Kennelly:Continued settlement conference held. County board member fails to appear as directed. The settlement conference is reset to 8/5/2010 at 2:00 PM. County Board member Silvestri is ordered to appear in person. Plaintiffs are directed to make a written counter−proposal to defense counsel by no later than 7/30/2010 at 4:30 PM. The Court advises that judgments will be entered on 8/9/2010 on individual claims pursuant to the Court's earlier order. (or, ) (Entered: 07/29/2010)
612 MINUTE entry before Honorable Matthew F. Kennelly: In this order, the Court deals with various issues regarding the entry of judgments on the claims of certain individual plaintiffs in this case, pursuant to the orders dated 7/16/10 and 7/29/10. [For further details see text below]. Mailed notices (gcy, ) (Entered: 08/09/2010)
613 MINUTE entry before Honorable Matthew F. Kennelly: Two telephone conferences regarding settlement held with attorneys for both sides. Telephone status hearing, to be initiated by counsel, is set for 8/11/10 at 8:45 a.m. Mailed notices (gcy, ) (Entered: 08/10/2010)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 53 of 69

08/11/2010
08/11/2010 08/11/2010 08/11/2010 08/11/2010 08/18/2010 08/23/2010 08/26/2010 09/02/2010 09/08/2010 10/13/2010 11/01/2010 11/12/2010 11/18/2010
11/18/2010 11/18/2010

614 MINUTE entry before Honorable Matthew F. Kennelly: Status hearing held by telephone with attorneys for all parties. Telephone status hearing is set to 8/17/10 at 8:45 AM., with counsel to initiate call to chambers. Pursuant to the orders dated 7/16/10, 7/29/10, and 8/9/10, the claims of plaintiff Michael Funderberg and Eugene Kazecki are severed from those of the classes.The Clerk is directed to enter judgment in favor of Michael Funderberg and Eugene Kazecki, and against the Sheriff of Cook County and the County of Cook, in the amount of $0. Mailed noitces (gcy, ) (Entered: 08/11/2010)
615 ENTERED JUDGMENT: IT IS HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Michael Funderberg and Eugene Kazecki, and against the Sheriff of Cook County and the County of Cook, in the amount of $0.(gcy, ) (Entered: 08/11/2010)
790 JURY Verdict entered in favor of plaintiffs and against defendant. (Mailed Notice) (RESTRICTED) (gcy, ) (Entered: 04/09/2013)
791 JURY Verdict entered in favor of plaintiffs and against defendant. (Mailed Notice) (RESTRICTED) (gcy, ) (Entered: 04/09/2013)
792 JURY Verdict entered in favor of plaintiff's and against defendants. (Mailed Notice) (RESTRICTED) (gcy, ) (Entered: 04/09/2013)
616 MINUTE entry before Honorable Matthew F. Kennelly:Telephone Status hearing held and continued to 8/23/2010 at 8:45 AM. (or, ) (Entered: 08/18/2010)
617 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with attorneys by telephone. Status hearing continued to 8/26/2010 at 8:45 AM., with attorneys by telephone. (or, ) (Entered: 08/23/2010)
618 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with attorneys by telephone. Telephone status hearing continued to 9/2/2010 at 8:45 AM. (or, ) (Entered: 08/27/2010)
619 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 9/8/2010 at 8:45 AM., with attorneys by telephone. (or, ) (Entered: 09/03/2010)
620 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with attorneys by telephone. Telephone status hearing continued to 10/13/2010 at 9:00 AM. (or, ) (Entered: 09/08/2010)
621 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with attorneys by telephone. Status hearing continued to 11/1/2010 at 9:00 AM., with attorneys by telephone. (or, ) (Entered: 10/13/2010)
622 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 11/12/2010 at 9:00 AM., with attorneys by telephone. (or, ) (Entered: 11/01/2010)
623 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held with parties by telephone. Telephone status hearing set for 11/17/2010 at 08:45 AM. (or, ) (Entered: 11/12/2010)
624 MOTION by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young for settlement preliminary approval of class action settlement (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Kanovitz, Michael) (Entered: 11/18/2010)
625 NOTICE of Motion by Michael I Kanovitz for presentment of motion for settlement, 624 before Honorable Matthew F. Kennelly on 11/24/2010 at 09:30 PM. (Kanovitz, Michael) (Entered: 11/18/2010)
626 MEMORANDUM motion for settlement, 624 by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kanovitz, Michael) (Entered: 11/18/2010)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 54 of 69

11/23/2010 11/24/2010 11/24/2010 01/07/2011 01/10/2011 01/20/2011 01/27/2011 01/31/2011 02/15/2011 02/15/2011 02/15/2011
02/17/2011
02/17/2011
02/22/2011 02/22/2011

627 ATTORNEY Appearance for Plaintiffs John Doe, Larry Fisher, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young by Heather Lewis Donnell (Donnell, Heather) (Entered: 11/23/2010)
628 MINUTE entry before Honorable Matthew F. Kennelly: Motion hearing held on 11/24/10. Motion by plaintiffs for preliminary approval 624 is granted. Fairness hearing is set for 3/1/10 at 9:30 a.m. Mailed notice (lcw, ) (Entered: 11/24/2010)
629 CERTIFICATE of Service of Notice upon U.S Attorney and Illinois Attorney General pursuant to 28 U.S.C.A. Sec 1715(b) (Catania, Francis) (Entered: 11/24/2010)
630 OBJECTION by Ap. William T. Sherrod, Jr. (mjc, ) (Entered: 01/11/2011)
631 STATEMENT of Objection by Sienky Lallemand. (gcy, ) (Entered: 01/12/2011)
632 LETTER from Richard K. Kearney. (gcy, ) (Entered: 01/20/2011)
633 NOTICE of Objection to Settlement in Young v. Cook County et al., No. 06 CV 552 by William J. Dujika. (ber, ) (Entered: 01/31/2011)
634 NOTICE by Antonio B. Claiborne with reference to settlement. (mjc, ) (Entered: 02/04/2011)
635 MOTION by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young for leave to file excess pages Petition (Kanovitz, Michael) (Entered: 02/15/2011)
636 NOTICE of Motion by Michael I Kanovitz for presentment of motion for leave to file excess pages 635 before Honorable Matthew F. Kennelly on 2/23/2011 at 09:30 AM. (Kanovitz, Michael) (Entered: 02/15/2011)
637 PETITION by Class Counsel for Attorneys' Fees, Costs, and Class Member Incentive Bonuses (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 J−2, # 12 Exhibit J−3, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit L−1, # 16 Exhibit L−2, # 17 Exhibit L−3, # 18 Exhibit L−4, # 19 Exhibit L−4 (2 of 2), # 20 Exhibit M, # 21 Exhibit N, # 22 Exhibit O, # 23 Exhibit P, # 24 Exhibit Q, # 25 Exhibit R, # 26 Exhibit S, # 27 Exhibit T, # 28 Exhibit U, # 29 Exhibit V, # 30 Exhibit W, # 31 Exhibit X)(Kanovitz, Michael) (Entered: 02/15/2011)
638 AFFIDAVIT of Andy Thayer regarding petition,, 637 With attachments 1−10 (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 2a, # 4 Exhibit 2b, # 5 Exhibit 3a, # 6 Exhibit 3b, # 7 Exhibit 4a, # 8 Exhibit 4b, # 9 Exhibit 5a, # 10 Exhibit 5b, # 11 Exhibit 5c, # 12 Exhibit 6a, # 13 Exhibit 6b, # 14 Exhibit 6c, # 15 Exhibit 7a, # 16 Exhibit 7b, # 17 Exhibit 8a, # 18 Exhibit 8b, # 19 Exhibit 9a, # 20 Exhibit 9b, # 21 Exhibit 10a, # 22 Exhibit 10b)(Kanovitz, Michael) (Entered: 02/17/2011)
639 AFFIDAVIT of Andy Thayer regarding petition,, 637 With attachments 11−20 (Attachments: # 1 Exhibit 11a, # 2 Exhibit 11b, # 3 Exhibit 11c, # 4 Exhibit 12a, # 5 Exhibit 12b, # 6 Exhibit 13a, # 7 Exhibit 13b, # 8 Exhibit 14a, # 9 Exhibit 14b, # 10 Exhibit 15a, # 11 Exhibit 15b, # 12 Exhibit 15c, # 13 Exhibit 16a, # 14 Exhibit 16b, # 15 Exhibit 16c, # 16 Exhibit 16d, # 17 Exhibit 17a, # 18 Exhibit 17b, # 19 Exhibit 17c, # 20 Exhibit 18a, # 21 Exhibit 18b, # 22 Exhibit 18c, # 23 Exhibit 19a, # 24 Exhibit 19b, # 25 Exhibit 19c, # 26 Exhibit 20)(Kanovitz, Michael) (Entered: 02/17/2011)
640 MOTION by Defendant County of Cook, Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young for settlement final approval (Attachments: # 1 Exhibit 1)(Kanovitz, Michael) (Entered: 02/22/2011)
641 MEMORANDUM by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young in support of motion for settlement, 640 final approval (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 55 of 69

02/22/2011 02/22/2011 02/22/2011 02/24/2011 02/24/2011 03/01/2011
03/04/2011 03/04/2011
03/04/2011 03/15/2011 03/21/2011 03/29/2011 03/30/2011 04/05/2011 04/06/2011

G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Kanovitz, Michael) (Entered: 02/22/2011)
642 MOTION by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young for leave to file excess pages memorandum (Kanovitz, Michael) (Entered: 02/22/2011)
643 NOTICE of Motion by Michael I Kanovitz for presentment of motion for leave to file 642 , motion for settlement, 640 before Honorable Matthew F. Kennelly on 3/1/2011 at 09:30 AM. (Kanovitz, Michael) (Entered: 02/22/2011)
644 MINUTE entry before Honorable Matthew F. Kennelly: Plaintiffs' motion for leave to file oversized brief nunc pro tunc is granted. Mailed notices (gcy, ) (Entered: 02/23/2011)
645 MOTION Concerning the mailing to class members. (gcy, ) (Main Document 645 replaced on 3/7/2011) (gcy, ). (Entered: 02/28/2011)
648 SEALED DOCUMENT. [Pursuant to Order Dated 3/4/11]. (gcy, ) (Entered: 03/07/2011)
646 MINUTE entry before Honorable Matthew F. Kennelly: Fairness hearing held. Class members Robert Louis Jones, Erica Speed, and Jason Ferguson are herebygranted permission to opt out of the settlement and the class in this case if they wish to do so, by filing written notice with the Clerk of this Court by no later than March 11, 2011. Any such opt−out notice is to be filed under Case No. 06 C 552. Motion to file oversize brief is granted (642). Order for approval ofsettlement to follow. Mailed Notices (gcy, ) (Entered: 03/02/2011)
647 MINUTE entry before Honorable Matthew F. Kennelly: The Clerk is directed to remove image of page three of document number 645 and place that page under seal. Mailed notices (gcy, ) (Entered: 03/07/2011)
649 MINUTE entry before Honorable Matthew F. Kennelly: Enter Order granting final approval of class action settlement and final judgment. The Court hereby authorizes the parties, without further approval from the Court, to agree to and adopt such amendments, modifications, and expansions of the Settlement Agreement as (a) are consistent in all material respects with this Final Order and Judgment and (b) do not limit the rights of the Settlement Class members under the terms of the Settlement Agreement. All pending motions are to be terminated. [For further detail see separate order(s)]. Mailed notices (gcy, ) (Entered: 03/08/2011)
650 ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FINAL JUDGMENT Entered by the Honorable Matthew F. Kennelly on 3/4/2011:(gcy, ) (Entered: 03/08/2011)
651 STATUS Report Joint Submission of Interim List of Exclusions by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Michael Sheahan, Kim Young (Attachments: # 1 Exhibit A)(Kanovitz, Michael) (Entered: 03/15/2011)
652 LETTER from Joseph Wilkins dated 3/11/11. (gcy, ) (Entered: 03/23/2011)
653 RESPONSE by Defendant County of Cook, Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to letter 652 from Joseph Wilkins (Keen, Roshna) (Entered: 03/29/2011)
654 AFFIDAVIT of Juan Martinez. (Poor Quality Original − Paper Document on File) (gcy, ) (Entered: 03/31/2011)
655 MINUTE entry before Honorable Matthew F. Kennelly: The Court directs plaintiffs' counsel to file, by 4/12/11, a response to the affidavit filed by Juan Martinez[docket no. 654].Mailed notice (mjc, ) (Entered: 04/06/2011)
656 RESPONSE by Defendant County of Cook, Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to affidavit 654 of Juan Martinez (Keen, Roshna) (Entered: 04/06/2011)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 56 of 69

04/07/2011 04/22/2011 04/25/2011
04/26/2011 05/26/2011 05/26/2011 06/01/2011 06/03/2011 06/08/2011 06/10/2011
06/16/2011 06/21/2011
06/27/2011 06/27/2011

657 MOTION for reconsideration by James Harry Rand. (gcy, ) (Entered: 04/11/2011)
658 RESPONSE by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to MOTION for reconsideration 657 by James Harry Rand (Keen, Roshna) (Entered: 04/22/2011)
659 MINUTE entry before Honorable Matthew F. Kennelly: James Harry Rand's motion for reconsideration 657 is granted for the reasons stated in the response by plaintiffs counsel. The request by Joseph Wilkins seeking to file a late claim form 652 is likewise granted for the reasons stated in the response by plaintiffs counsel. The request by Juan Martinez seeking to file a late claim form 654 is denied for the reasons stated in the response by plaintiff's counsel. Reasonable efforts were made to give notice to all potential classmembers, including Mr. Martinez. It appears that notice was sent to Mr. Martinez based on the alias name and address he provided upon admission to the Cook County Jail, so any failure to receive individual notice is due to his own actions. The Clerk is directed to mail a copy of this order to Juan Martinez, # M00898, P.O. Box 999, Canton, Illinois 61520. (gcy, ) (Entered: 04/26/2011)
MAILED Copy or order dated 4/25/11 to Juan Martinez @ Canton, IL. (gcy, ) (Entered: 04/26/2011)
660 MOTION investigation to self claimant is a classmember by Guadalupe Chacon. (gcy, ) (Entered: 05/31/2011)
661 CERTIFICATE of service. (gcy, ) (Entered: 05/31/2011)
662 MINUTE entry before Honorable Matthew F. Kennelly: Class counsel is directed to respond by 6/8/11 to the motion by Guadalupe Chacon "for investigation to see if claimant is a class member." Class counsel should send Mr. Chacon a copy of the response. (mk) (Entered: 06/01/2011)
663 MOTION by George Jenkins to intervene. (Exhibits). (gcy, ) (Entered: 06/07/2011)
664 RESPONSE by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to MOTION investigation to self claimant is a classmember 660 (Keen, Roshna) (Entered: 06/08/2011)
665 MINUTE entry before Honorable Matthew F. Kennelly: The Court denies Guadalupe Chacon's motion seeking determination of whether he is a class member [#660] for the reasons stated in the response filed by class counsel. The Clerk is directed to mail a copy of this order to Guadalupe Chacon, #R−26892, Illinois River Correctional Center. P.O. Box 999, Canton, IL 61520. On a separate matter, the Court directs plaintiffs' counsel to file a response to George Jenkins' "motion for court intervention." by no later than 6/17/11. Mailed notices (gcy, ) (Entered: 06/13/2011)
666 RESPONSE by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to MOTION by Intervenor George Jenkins to intervene 663 (Keen, Roshna) (Entered: 06/16/2011)
667 MINUTE entry before Honorable Matthew F. Kennelly: The Court denies George Jenkins' "motion for intervention" for the reasons stated in the parties' joint response to that motion. The Clerk is directed to terminated Mr. Jenkins' motion [#663] as well as the motion previously filed by Guadalupe Chacon [#660], upon which the Court previously ruled. The Clerk is directed to mail a copy of this order to George Jenkins, 17725 Exchange Ave., Lansing, IL 60438. Mailed notices (gcy, ) (Entered: 06/21/2011)
668 MOTION by Defendant County of Cook to Order a Stay in Payments and Order Claimant List to be issued to IDHFS (Attachments: # 1 Exhibit Protective Order Doc #100)(Catania, Francis) (Entered: 06/27/2011)
669 NOTICE of Motion by Francis J. Catania for presentment of motion for miscellaneous relief 668 before Honorable Edmond E. Chang on 6/28/2011 at

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 57 of 69

06/28/2011
06/28/2011 06/29/2011 07/18/2011
07/28/2011 08/01/2011 08/19/2011
09/01/2011 09/16/2011 09/20/2011

01:00 PM. (Catania, Francis) (Entered: 06/27/2011)
670 MINUTE entry before Honorable Matthew F. Kennelly: Defendant has noticed a motion on one day's notice for presentment on today's date (6/28/11) before the emergency judge. In the motion, defendant seeks to stay payments pursuant to the settlement in this case that defendant believes will begin on 6/30/11, as well as further relief. Given those facts, the motion should have been noticed before the undersigned judge when he resumes holding court on 6/29/11 (or earlier), not before the emergency judge. The Court orders that no payments pursuant to the settlement may be made prior to 6/30/11, takes under advisement the request to provide a copy of the claimant list to the Illinois Department of Healthcare and Family Services as well as the other relief sought by defendant, and enters and continues the motion to 6/29/11 at 9:30 a.m. (M. Kennelly) (Entered: 06/28/2011)
671 RESPONSE by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to notice of motion 669 response to Defendant's Emergency Motion for Miscellaneous Relief (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Keen, Roshna) (Entered: 06/28/2011)
672 MINUTE entry before Honorable Matthew F. Kennelly: For the reasons stated in open court, defendant's motion to stay is denied. Oral motion to reconsider is denied for the reasons stated in open court. (or, ) (Entered: 06/30/2011)
673 MINUTE entry before Honorable Matthew F. Kennelly: The Court has, over the past six weeks or so, received letters from a number of persons who claim to be class members and who complain that their claims have been denied (John B. Myles, Ricky E. Dumas, Eugene Tasior, Juan Rodriguez, and Paul Long). Copies of these letters are available at Judge Kennelly's chambers, which, for the time being, is in Room 1000. Plaintiffs' counsel is directed to file with the court and mail to the claimants a written response, by no later than August 1, 2011. (mk) (Entered: 07/18/2011)
737 LETTER from Darnell Grigsby. (gcy, ) (Entered: 07/30/2012)
674 RESPONSE by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to text entry,, 673 to letters from J. Myles, R. Dumas, E. Tasior, J. Rodriguez, and P. Long (Attachments: # 1 Exhibit Letter to Myles, # 2 Exhibit Letter to Tasior, # 3 Exhibit Letter to Dumas, # 4 Exhibit Letter to Rodriguez, # 5 Exhibit Letter to Long)(Tsai, Cindy) (Entered: 08/01/2011)
675 MINUTE entry before Honorable Matthew F. Kennelly: The Court has reviewed the submission by class counsel dated 8/1/11. Based on that submission, the objections/inquiries by John B. Myles and Paul Long are terminated as moot. The Court approves the rejection of Rickey E. Dumas' claim on the ground that it was untimely and no legitimate basis for an excuse has been offered. It appears that the objections/inquiries by Eugene Tasior and Juan Rodriguez remain under advisement between the parties. The Court also notes that is continues to receive a significant volume of inquiries and objections by letter. The Court sets the case for a status hearing on 9/1/11 at 9:30 a.m. so that it can provide copies of these materials to the parties and to discuss whether it is possible to establish a mechanism for dealing with such inquiries henceforth. Mailed notices (gcy, ) (Entered: 08/22/2011)
676 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 9/22/2011 at 09:30 AM. (or, ) (Entered: 09/02/2011)
677 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received several additional inquiries regarding the status of settlement payments and requests that plaintiffs' counsel pick these up from chambers (Room 2188) and distribute copies of defendants' counsel. (mk) (Entered: 09/16/2011)
678 STATUS Report by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Attachments: # 1 Exhibit A − Summary of Findings, # 2 Exhibit B − Standard Letter, # 3 Affidavit from Rust Consulting, # 4 Text of Proposed

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 58 of 69

09/22/2011 09/26/2011
09/27/2011 09/27/2011 09/30/2011
09/30/2011
10/03/2011 10/06/2011 10/10/2011 10/17/2011

Order)(Tsai, Cindy) (Entered: 09/20/2011)
679 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held and continued to 2/13/2012 at 09:30 AM. (or, ) (Entered: 09/23/2011)
680 MINUTE entry before Honorable Matthew F. Kennelly: This matter came before the Court on the joint request of the plaintiffs and the defendants for rulings on objections from claimants, fully briefed in the Joint Status Report Regarding Objections and Other Settlement Activities [dkt. no. 678]. For the reasons stated in that Report and in open court, it is hereby ordered that the Court adopts and approves the parties recommendations; class counsel shall file under seal the names of the claimants who were referred to in the status report by his/her claim number; and class counsel shall notify objectors of the Courts rulings. (mk) (Entered: 09/26/2011)
681 SEALED DOCUMENT by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Kim Young Names of Claimants Referenced in Status Report [DE 678] (Attachments: # 1 Supplement Names of Claimants Referenced in Status Report [DE 678])(Tsai, Cindy) (Entered: 09/27/2011)
682 Redacted Names of Claimants Referenced in Status Report [DE 678] by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Attachments: # 1 Supplement Redacted Names of Claimants Referenced in Status Report [DE 678])(Tsai, Cindy) (Entered: 09/27/2011)
683 MINUTE entry before Honorable Matthew F. Kennelly: A current and former Cook County Jail detainee named Quincy Smith has filed a lawsuit, randomly assigned to the undersigned judge's docket, in which he appears to assert a claim under the settlement in this case. Counsel are directed to obtain a copy of Mr. Smith's complaint (Case No. 11 C 6074) and are to file, by October 11, 2011, a status report under the present case number (Case No. 06 C 552), with a copy to Mr. Smith, advising the Court concerning the appropriate action to take regarding Mr. Smith's case. (mk) (Entered: 09/30/2011)
684 MINUTE entry before Honorable Matthew F. Kennelly: A second former Cook County Jail detainee named Dale Smith has filed a lawsuit, assigned to the undersigned judge's docket, in which he appears to assert a claim under the settlement in this case. Counsel are directed to obtain a copy of Mr. Smith's complaint (Case No. 11 C 6390) and are to file, by October 11, 2011, a status report under the present case number (Case No. 06 C 552), with a copy to Mr. Smith, advising the Court concerning the appropriate action to take regarding Mr. Smith's case. (mk) (Kennelly, Matthew) (Entered: 09/30/2011)
685 REQUEST for Order by Jerome Ballentine. (Attachments: # 1 Exhibit). (RESTRICTED). (gcy, ) Modified on 10/6/2011 (gcy, ). (Entered: 10/05/2011)
686 MINUTE entry before Honorable Matthew F. Kennelly: The Clerk is directed to place document 685 under seal because it contains personal identifying and other arguably non−public information regarding the movant. Mailed notices (gcy, ) (Entered: 10/06/2011)
687 STATUS Report (Joint) Regarding Complaints Filed by Quincy Smith, Dale A Smith, and Jerome Balentine by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2)(Tsai, Cindy) (Entered: 10/10/2011)
688 MINUTE entry before Honorable Matthew F. Kennelly: The claims of Jerome Balentine and Dale A. Smith are denied for the reasons stated by counsel for the parties in the joint status report filed on 10/10/11. Quincy Smith may pursue, if appropriate, the remedy stated at page two of the status report for making a claim regarding fraudulent check cashing. Plaintiff's counsel are directed to mail a copy of this order to Mr. Ballentine, Mr. Dale Smith, and Mr Quincy Smith. Mailed notices (gcy, ) (Entered: 10/17/2011)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 59 of 69

10/17/2011
10/28/2011
11/10/2011
11/14/2011 11/28/2011
11/29/2011 12/08/2011 12/12/2011 01/11/2012
01/11/2012

689 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received letters inquiries/complaints form Warren Blakeley Jr., Michael J. Chachere, Sebron Floyd, Nathaniel Jackson, Randy Jackson, George Johnson, Terrence Kirksey, Thomas Maberry, Jeryme Morgan, Robert Smith, Scottie Smith, Reginald Thomas, and Chris Wakeman. Plaintiffs' counsel are directed to pick up those documents from chambers by 10/18/11 and are to provide a copy to defendants' counsel. The parties are to file a joint status report dealing with these inquiries/complaints by no later than 10/31/11. Mailed notices (gcy, ) (Entered: 10/17/2011)
690 STATUS Report (Joint) Regarding Letters To The Court from Warren Blakeley Jr., Michael J. Chachere, Sebron Floyd, Nathaniel Jackson, Randy Jackson, George Johnson, Terrence Kirksey, Thomas Maberry, Jeryme Morgan, Robert Smith, Scottie Smith, Reginald Thomas, and Chris Wakeman by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 10/28/2011)
691 MINUTE entry before Honorable Matthew F. Kennelly: The Court approves the parties status report filed on 10/28/11. For the reasons stated in the report, the Court approves payment to Warren Blakeley Jr. and Terrence Kirksey as members of Class 1 and denies the claims of Sebron Floyd, Jeryme Morgan, Randy Jackson, Scottie Smith, Reginald Thomas, and Scott Wakeman. With regard to Michael J. Chachere, Nathaniel Jackson, George Johnson, Thomas Maberry, and Robert Smith, to whom checks have already been issued, the Court approves the parties' proposal and advises those claimants that they may pursue, if appropriate, the remedy described in the status report for making a claim regarding fraudulent cashing of a check. Plaintiff's counsel are directed to mail a copy of this order to all claimants named in the order.Mailed notice (mjc, ) (Entered: 11/14/2011)
692 LETTER from Jerell Thomas. (gcy, ) (Entered: 11/16/2011)
693 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received additional letters, from the following persons: Tommie Kimble, Andrew McKnight, Andre Devon Gray, Anthony Orre, Anthony Roscoe, Scottie Smith, and Jerell Thomas. The Court requests that plaintiffs' counsel pick up the letters from chambers, distribute copies to defense counsel, and file a status report regarding those and other letters recently picked up, by no later than 12/15/11. (mk) (Entered: 11/28/2011)
694 STATUS Report (Joint) Regarding Letters To The Court by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 11/29/2011)
695 LETTER from Reginald Brewer. (Exhibits). (gcy, ) (Entered: 12/12/2011)
696 STATUS Report (Joint) Regarding Letters To The Court by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 12/12/2011)
697 MINUTE entry before Honorable Matthew F. Kennelly: The Court approves the joint status report dated 11/29/22 (dkt. 694)and, as proposed in that report, denies the claims of David Hummon, Daniel McGregory, and Jerell Thomas, and again denies the claim of Sebron Floyd. The Court adopts the parties' proposals regarding Belton Reed and Eugene Tasior. Class counsel is directed to send a copy of this order to Messrs. Hummon, McGregory, Thomas, Floyd, Reed and Tasior. Mailed notices (gcy, ) (Entered: 01/12/2012)
698 MINUTE entry before Honorable Matthew F. Kennelly: The Court approves the parties' status report dated 12/12/11. For the reasons stated in the report, the Court denies the claims for compensation or additional compensation submitted by Andre Devon Gray, Anthony Roscoe, and Scottie Smith. The court also approves the parties' proposals, as stated in the report, relating to Tommie Kimble, Andrew McKnight and Anthony Orre. The Court directs class counsel to mail a copy of this order to Mr. Gray, Mr. Roscoe, Mr. Smith, Mr. Kimble, Mr. McKnight, and Mr. Orre. Notices mailed by Judicial staff. (gcy, ) (Entered: 01/12/2012)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 60 of 69

01/25/2012
01/25/2012
01/25/2012 01/26/2012 01/31/2012 02/09/2012 02/10/2012 02/13/2012 02/23/2012 02/23/2012 03/01/2012 03/02/2012

699 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received a significant number of additional letter inquiries from claimed class members (Alfonzo Caldwell, Alfred Wright, Earl Johnson, Curtis Gordon, Marlon Robertson, Philil Deavila, Trent Fourney, Michael Rouse, Ricardo Velasco, Eduardo Rodriguez, and Jeryme Morgan). These include several inquiries that appear to use the same format and complain that inmates at Logan Correctional Center who submitted late claims obtained relief but inmates at other prisons did not. The Court requests plaintiffs' counsel to pick up these letters from chambers and provide copies to defendants' counsel. A joint status report is to be filed by 2/15/12 making recommendations regarding how to deal with these inquiries; the complaint about differential treatment; and whether it may be appropriate at some point in time to stop accepting and dealing with follow−up inquiries regarding the settlement. The status report should also include a report on the status of any insurance−related litigation that may impact the overall settlement amount. (mk) (Entered: 01/25/2012)
700 MOTION by Defendants Callie Baird, County of Cook, Salavador Godinez, Salavador Godinez, Scott Kurdovich, Michael Sheahan, Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young for hearing JOINT MOTION FOR STATUS CONFERENCE (Kanovitz, Michael) (Entered: 01/25/2012)
701 NOTICE of Motion by Michael I Kanovitz for presentment of motion for hearing, 700 before Honorable Matthew F. Kennelly on 1/31/2012 at 09:30 AM. (Kanovitz, Michael) (Entered: 01/25/2012)
702 MINUTE entry before Honorable Matthew F. Kennelly: Joint motion for status hearing 700 is granted. The case is set for a status hearing in chambers (Room 2188) at 9:00 a.m. on 1/31/12. (mk) (Entered: 01/26/2012)
703 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held. Status hearing previously set for 2/13/2012 to stand. (or, ) (Entered: 02/01/2012)
716 MOTION to demand for judgment by John Preston Jenkins. (Exhibits). (gcy, ) (Entered: 03/06/2012)
704 STATUS Report (Joint) Regarding Letters to the Court by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 02/10/2012)
705 MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held on 2/13/2012 (or, ) (Entered: 02/13/2012)
712 NOTICE of appeal by Anthony Roscoe regarding orders 698 . (IFP Pending) (gel, ) (Entered: 03/06/2012)
713 AFFIDAVIT by Anthony Roscoe for leave to appeal in forma pauperis. (gel, ) (Entered: 03/06/2012)
711 MOTION to intervene by Darnell Brigsby (aka) Darnell Moore. (gcy, ) (Entered: 03/06/2012)
706 MINUTE entry before Honorable Matthew F. Kennelly: For the reasons set forth in the Joint Status Report filed on 2/10/12 (docket no. 704), the Court: (1) denies the requests for relief made by Alfonzo Caldwell, Philip Deavila, Trent Forney, and Dwayne Hill; (2) terminates as moot the requests by Andre Stallings and Rarl Johnson; (3) denies the request of Michael Rouse to submit a late claim; (4) denies the request for relief made by Marlon Robertson; (5) terminates as moot the inquiry of Curtis Gordon; (6) denies as premature the requests of Ricardo Velasco, Eduardo Rodriguez, and Jeryme Morgan for information about a possible additional payment from insurance proceeds; (7) directs counsel to include an update regarding the request of Reginald Brewer in their next status report; and (8) denies the request of Odunba Adebayo to submit a late claim. Class counsel is directed to mail a copy of this order to each of the above−named claimants along with a copy of the 2/10/12 status report. In addition, the Court agrees with the parties' proposal that the final void date on all checks issued moving forward should be 4/16/12. (mk) (Entered: 03/02/2012)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 61 of 69

03/02/2012 03/02/2012
03/02/2012 03/05/2012 03/06/2012 03/06/2012 03/06/2012 03/06/2012 03/14/2012 03/15/2012
03/19/2012
03/19/2012

707 MINUTE entry before Honorable Matthew F. Kennelly: The Court has reviewed the Joint Status Report dated 2/10/12 (docket no. 704). The Court grants the request of claimant Allory Smith and directs payment of his claim. Class counsel is directed to send Mr. Smith a copy of this order. (mk) (Entered: 03/02/2012)
708 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received letters and requests from Brian Lewis, John Preston Jenkins, Delano Horn, Clarence Hebron, Jeffrey Stars, Samuel S. Jackson, Andre Devon Gray, Frederick Pigram, and Emerson Tucker. Class counsel is directed to promptly pick up these materials from chambers (Room 2188), and the parties are directed to file a joint status report regarding these letters and requests by no later than 3/16/12. (mk) (Entered: 03/02/2012)
709 MINUTE entry before Honorable Matthew F. Kennelly: The Clerk is directed to terminate the pro se appearance of George Jenkins in this matter. Mailed notices (gcy, ) (Entered: 03/02/2012)
710 MOTION by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to clarify REGARDING ALLORY SMITH (Tsai, Cindy) (Entered: 03/05/2012)
714 NOTICE of Appeal Due letter sent to counsel of record. (gel, ) (Entered: 03/06/2012)
715 TRANSMITTED to the 7th Circuit the short record on notice of appeal 712 . Notified counsel (gel, ) (Entered: 03/06/2012)
717 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 712 ; USCA Case No. 12−1528. (gcy, ) (Entered: 03/07/2012)
718 PLRA FEE NOTICE AND ORDER from the 7th Circuit regarding notice of appeal 712 ; Appellate case no. : 12−1528. (gcy, ) (Entered: 03/07/2012)
732 MOTION to compel for compensation by Nathaniel Jackson (Exhibits). (gcy, ) (Entered: 04/23/2012)
719 STATUS Report REGARDING LETTERS TO THE COURT by Callie Baird, County of Cook, Salavador Godinez, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Scott Kurdovich, Gerrad Lamour, Matthew Liptak, Lee Mercado, Michael Sheahan, Kim Young (Tsai, Cindy) (Entered: 03/15/2012)
720 MINUTE entry before Honorable Matthew F. Kennelly: Plaintiffs' motion for clarification regarding Allory Smith (dkt. no. 710) is granted. The Court's order of 3/2/12 (dkt. no. 707) was erroneous and did not comport with the discussion at the 2/13/12 status hearing. The order is therefore vacated. If, by no later than 4/9/12, Mr. Smith submits proof of mailing of his claim form, then his claim is to be paid. Plaintiffs' counsel are directed to promptly transmit a copy of this order to Mr. Smith and are to provide a further status report regarding his claim by no later than 4/20/12. (mk) (Entered: 03/19/2012)
721 MINUTE entry before Honorable Matthew F. Kennelly: MINUTE entry before Honorable Matthew F. Kennelly: The Court has reviewed the joint status report filed on 3/15/12 (dkt. no. 719). The Court again finds that notice of the settlement and the requirements for making a claim under the settlement was provided in the best means practical under the circumstances. See Fed. R. Civ. P. 23(c)(2)(B). The Court makes the following rulings regarding the claims addressed in the report: 1) If, by no later than 4/16/12, Brian Lewis provides the claims administrator with proof of timely mailing of his claim form, the administrator is to pay his claim. If Mr. Lewis does not do so, his request for payment is denied. 2) The Court denies John Preston Jenkins' motion to demand judgment (dkt. no. 716) for the reasons stated in the joint status report, in particular that he did not submit a timely claim. 3) The Court denies Delano Horn's request for payment because he failed to advise class counsel of his change of address and failed to submit a timely claim. 4) Regarding the claim of Clarence Hebron, a further status report is to be filed by 4/20/12. 5) The Court denies Jeffrey Starks' request for payment on the ground that he failed to make a timely showing that he was eligible for payment. 6) The Court approves class counsel's determination to make payments to Samuel Jackson and

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 62 of 69

03/19/2012
03/19/2012
03/19/2012 03/21/2012 03/26/2012 03/29/2012 03/29/2012 04/02/2012
04/04/2012 04/16/2012

Frederick Pigram on the ground that they are class members and made timely claims, and counsel's determination to reissue payment to Emerson Tucker on the same grounds. 7) The Court approves class counsel's proposals with regard to Darnell Grigsby and Reginald Brewer, specifically, that each of them is to submit a properly completed fraudulent activity report to the claims administrator. Unless Mr. Grigsby and Mr. Brewer submit such a report to the claim administrator by no later than 4/17/12, their claims will be denied. A joint status report regarding their claims is to be filed by 4/20/12. Finally, class counsel is directed to promptly mail a copy of this order to each claimant addressed in the order. (mk) (Entered: 03/19/2012)
722 MINUTE entry before Honorable Matthew F. Kennelly: The Court denies Anthony Roscoe's motion to appeal in forma pauperis (#713) because his appeal would be frivolous. As stated in the status report filed by counsel for the parties on 12/12/11 (#696), Mr. Roscoe was aware of the pendency of the lawsuit but did not submit a timely claim. This was the result of his own defaults, including his providing of incorrect information to either the Cook County Jail when arrested or to the IDOC, and his later failure to advise class counsel of his prisoner transfer in 2010. The Clerk is directed to transmit copies of this order to the Court of Appeals and to Anthony Roscoe, #B−66981, Lawrence Correctional Center, 10930 Lawrence Rd. Summer, IL 62466. Class counsel is directed to promptly file a copy of Mr. Roscoe's letter that was addressed in the 12/12/11 status report. (gcy, ) (Entered: 03/20/2012)
723 MINUTE entry before Honorable Matthew F. Kennelly: The Clerk denies the motion to intervene filed by Darnell Grigsby a/k/a Darnell Moore. Though his motion is not entirely clear, Mr. Grigsby appears to contest the propriety of adequacy of the previously−approved settlement. The motion is woefully untimely and is denied [dkt. no. 711]. The Clerk is directed to mail a copy of this order to Darnell Grigsby, No. B−34441, P.O. 999, Pinckneyville, IL 62274. Mailed notices (gcy, ) NOTE: this is a corrected version of the order originally entered on this motion. (Entered: 03/20/2012)
724 MOTION to intervene by Luther Washington. (gcy, ) (Entered: 03/21/2012)
725 LETTER by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young ANTHONY ROSCOE LETTER ADDRESSED IN DECEMBER 12, 2011 STATUS REPORT (Tsai, Cindy) (Entered: 03/21/2012)
733 PROOF of Service by Jose A. Valdovinos. (gcy, ) (Entered: 04/23/2012)
726 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 712 (USCA no. 12−1528). (gel, ) (Entered: 03/29/2012)
727 USCA RECEIVED on 3/29/2012 the long record regarding notice of appeal 712 . (gel, ) (Entered: 03/30/2012)
728 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received letters or motions from the following persons who claim they are class members but did not receive sufficient notice or submitted claim forms and did not receive payment: Nathaniel Jackson, Scottie Smith, Trent Forney, Luther Washington, Lee Whitaker, Omar Salas, DeJuan Jones, and Jose Valdovinos. The Court has also received a letter from Andre Gray requesting reconsideration of an earlier ruling (Mr. Gray says he received the settlement notice after the deadline for submitting claims). The parties are directed to file a status report responding to these requests by no later than 4/16/12. Mailed notices (gcy, ) (Entered: 04/02/2012)
729 LETTER from Jerell Thomas dated 4/3/12. (gcy, ) (Entered: 04/06/2012)
730 STATUS Report (Joint) Regarding Letters from Andre Gray, Nathaniel Jackson, Scottie Smith, Jerell Thomas (Dckt 729), Trent Forney, DeJuan Jones, Omar Salas, Jose Valdovinos, Luther Washington, and Lee Whitaker and Updates on Clarence Hebron and Allory Smith by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 04/16/2012)

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 63 of 69

04/20/2012
04/27/2012 04/27/2012 07/02/2012 07/23/2012 07/30/2012
07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/30/2012 07/31/2012
08/08/2012
08/10/2012
08/10/2012

731 STATUS Report (Joint) Regarding Darnell Grigsby and Reginald Brewer by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 04/20/2012)
734 MANDATE of USCA dated 4/27/12 regarding notice of appeal 712 ; DISMISSED ; USCA No. 12−1528. (gcy, ) (Entered: 04/27/2012)
735 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 12−1528. No record to return. (gcy, ) (Entered: 04/27/2012)
736 LETTER from Reginald Brewer. (gcy, ) (Entered: 07/09/2012)
747 Opt. In Form/Non payment by Darnell Grigsby. (gcy, ) (Entered: 08/07/2012)
738 STATUS Report (Joint) Regarding Reginald Brewer and Darnell Grigsby by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Attachments: # 1 Exhibit A)(Tsai, Cindy) (Entered: 07/30/2012)
740 LETTER dated 3/25/12. (gcy, ) (Entered: 08/07/2012)
741 OPT In Form/non−payment by Delaney M Charlson. (gcy, ) (Entered: 08/07/2012)
742 Opt. In Form/Non payment by Carlos Nash. (gcy, ) (Entered: 08/07/2012)
743 Opt. In Form/Non payment by Antione Younger. (gcy, ) (Entered: 08/07/2012)
744 Opt. In Form/Non payment by Kenan D Johnson. (gcy, ) (Entered: 08/07/2012)
745 Opt. In Form/Non payment by Shawn Lewis. (gcy, ) (Entered: 08/07/2012)
746 Opt. In Form/Non payment by Brian D Lewis. (gcy, ) (Entered: 08/07/2012)
751 OPT In Form/Non−Payment by Adolph Love. (gcy, ) (Entered: 08/16/2012)
752 OPT In Form/Non−Payment by Michael Mejia. (gcy, ) (Entered: 08/16/2012)
754 OPT In/Non Payment by Marlon Robertson. (gcy, ) (Entered: 08/23/2012)
755 LETTER from Michael Meija. (gcy, ) (Entered: 08/23/2012)
756 LETTER from Lonny M Banks. (gcy, ) (Entered: 08/23/2012)
757 LETTER by Theopolis Williams. (gcy, ) (Entered: 08/23/2012)
739 MINUTE entry before Honorable Matthew F. Kennelly: As further explained below, the Court approves the recommendations in the joint status report of 4/16/12(dkt. no. 730), regarding communications from Andrew Gray, Nathaniel Jackson, Scottie Smith, Jerell Thomas, Trent Forney, DeJuan Jones, Omar Salas, Jose Valdovinos, Luther Washington, and Lee Whitaker. Class counsel is directed to mail a copy of this order to each of those persons. [For further detail see text below.] Mailed notice (gcy, ) (Entered: 08/01/2012)
748 MINUTE entry before Honorable Matthew F. Kennelly: Starting on 8/7/12 and likely continuing through 8/9/12, a number of letters, inquiries, and objections that have been sent to Judge Kennelly's chambers over the past several months, and which have been accumulating, will be uploaded to the docket. Each bears a stamp showing the date on which it was received. The Court directs counsel for the class and for defendants to examine these materials and submit a joint status report by no later than 8/23/12. (mk) (Entered: 08/08/2012)
749 STATUS Report (Joint) Regarding Letters to the Court by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 08/10/2012)
750 STATUS Report (Joint) Update on the Settlement Fund and Other Related Matters by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Attachments: # 1 Exhibit A − Proposed Order)(Tsai, Cindy) (Entered: 08/10/2012)

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08/22/2012 08/24/2012 09/04/2012 09/04/2012 09/04/2012 09/04/2012 09/04/2012 09/11/2012 09/25/2012
09/26/2012
10/05/2012 10/05/2012 11/14/2012 11/14/2012 11/14/2012 11/27/2012

753 STATUS Report (Joint) Regarding Adolph Love (dckt. 751) and Michael Mejia (dckt. 752) by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 08/22/2012)
758 LETTER from Michael Mejia dated 8/15/12. (gcy, ) (Entered: 08/28/2012)
759 LETTER from Adolph Henry Love dated 8/30/12. (gcy, ) (Entered: 09/10/2012)
760 LETTER from Adolph Henry Love. (gcy, ) (Entered: 09/10/2012)
761 MOTION by Plaintiff Adolph Love for leave to issue execution. (gcy, ) (Entered: 09/10/2012)
762 NOTICE of Motion for issuance of execution by Adolph Love. (gcy, ) (Entered: 09/10/2012)
764 MOTION by Plaintiff Adolph Love for Issuance of a writ of execution. (gcy, ) (Entered: 09/13/2012)
763 STATUS Report (Joint) Regarding Letters to the Court by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 09/11/2012)
765 MINUTE entry before Honorable Matthew F. Kennelly: For the reasons stated below, the Court denies the motions and requests submitted by Darnell Grigsby, Reginald Brewer, Marlon Robertson, Michael Mejia, Larry Banks, Theopolis Williams, and Adolph Love. Class counsel are directed to mail a copy of this order to those claimants. The Clerk is directed to terminate motions 761 &764, upon, which the Court rules in this order, and motions 724 &732, upon which the court ruled a numbers of months ago. Finally, the Court notes that the parties have not yet responded to the following requests/inquiries; Jeffrey Starks (#740), Delaney Charlson (#741), Carlos Nash (#(742). Antoine Younger (#(743), Kenan Johnson (#(744). Shawn Lewis (#(745), and Brian Lewis (#746). They are directed to file a joint status report regarding these requests by no later than 10/5/12. [For further detail see text below.] Mailed notices (gcy, ) (Entered: 09/26/2012)
766 MINUTE entry before Honorable Matthew F. Kennelly: It has come to the Court's attention that counsel did, in fact, file a status report addressing the remaining claimants who have submitted objections and inquiries (dkt. no. 749), so the Court's previous order is vacated to the extent it required a further status report on these claimants. The status report in question, however, refers to the claimant who submitted the document filed as docket no. 740 is unknown. That is because, for unknown reasons, the Clerk failed to image the envelope in which the claimant's letter was received. The claimant's name is Jeffrey Starks, and the envelope reflects that he is (or was) an inmate at Menard Correctional Center with IDOC number K60812. Counsel are directed to file a further status report regarding that claimant only. (mk) (Entered: 09/26/2012)
767 STATUS Report (Joint) Regarding Jeffrey Starks by County of Cook, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 10/05/2012)
768 LETTER from Elroy Henderson dated 9/28/12. (gcy, ) (Entered: 11/16/2012)
769 LETTER from Raymond Hardy dated 10/25/12. (gcy, ) (Entered: 11/16/2012)
770 MOTION by Plaintiff Raymond Hardy for leave to proceed in forma pauperis an affidavit. (gcy, ) (Entered: 11/16/2012)
771 MOTION by Plaintiff Raymond Hardy to order class counsel to process and forward class party his settlement funds in the above entitled cause. (gcy, ) (Entered: 11/16/2012)
772 MOTION by Defendant Larry Banks for writ of execution. (gcy, ) (Entered: 11/29/2012)

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12/07/2012 12/10/2012 12/10/2012 12/10/2012 12/19/2012 12/31/2012
12/31/2012
12/31/2012
01/03/2013 01/16/2013 01/16/2013 01/23/2013 03/30/2013

773 STATUS Report (Joint) Regarding Elroy Henderson, Raymond Hardy, and Larry Banks (dckts. 768−772) by County of Cook, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 12/07/2012)
774 LETTER from Detrick Cullum. (gcy, ) (Entered: 12/12/2012)
775 MOTION by Plaintiff Detrick Deshun Cullum for appointment of counsel. (gcy, ) (Entered: 12/12/2012)
776 MOTION by Plaintiff Detrick Deshun Cullum for leave to proceed in forma pauperis. (gcy, ) (Entered: 12/12/2012)
777 STATUS Report (Joint) Regarding Detrick Cullum (dckt 774−776) by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 12/19/2012)
778 MINUTE entry before Honorable Matthew F. Kennelly: Class counsel states in a status report filed on 10/5/12 [# 767] that an error was made regarding claimant Jeffrey Starks and that a settlement check has been sent to him. The Court has heard nothing further from Mr. Starks, which indicates that he received the check. There is nothing more for the Court to decide regarding Mr. Starks. Class counsel is directed to send Mr. Starks a copy of this order. (mk) (Entered: 12/31/2012)
779 ORDER signed by the Honorable Matthew F. Kennelly on 12/31/2012: For the reasons stated in this order, the Court denies the claims and requests for payment by Delaney Charlson 741 , Carlos Nash 742 , Antoine Younger 743 , Kenan Johnson 744 , Shawn Lewis 745 , Elroy Henderson 768 , Raymond Hardy [769 &771], Larry M. Banks 772 , and Derrick Cullum [774−776], including any and all motions they filed, except for Mr. Hardy's and Mr. Cullum's motions to proceed in forma pauperis, which are granted [770 &776]. Class counsel are directed to send a copy of this order to each of these persons and to provide written verification of doing so, by no later than 1/4/13. All pro se parties are hereby terminated. (mk) (Entered: 12/31/2012)
780 MINUTE entry before Honorable Matthew F. Kennelly: The Court previously dealt with Brian Lewis's request for payment in an order dated 3/19/12 [# 721], giving Mr. Lewis until 4/16/12 to provide proof of timely mailing of his claim form. The Court directed class counsel to send a copy of that order to Mr. Lewis. Mr. Lewis says he did not receive it and was not aware of it until another inmate showed it to him. The Court finds that Mr. Lewis has provided a sufficient basis for his belated response to the 3/19/12 order and also accepts Mr. Lewis's statement regarding his submission of a timely form. His claim is to be paid in full, within 14 days of this order. Class counsel are directed to send Mr. Lewis a copy of this order promptly and are to file written verification of having done so by no later than 1/4/13. (mk) (Entered: 12/31/2012)
781 Written Verification of Mailing by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 01/03/2013)
782 MOTION by Plaintiffs Ronald Johnson, William Jones, Kim Young to withdraw counsel (Thompson, Julie) (Entered: 01/16/2013)
783 NOTICE of Motion by Julie Marie Thompson for presentment of motion to withdraw 782 before Honorable Matthew F. Kennelly on 1/24/2013 at 09:30 AM. (Thompson, Julie) (Entered: 01/16/2013)
784 MINUTE entry before Honorable Matthew F. Kennelly: The motion for withdrawal of Aaron Mandel as counsel for plaintiffs is granted [dkt.no.782]. The motion hearing date of 1/24/13 is vacated. Mailed notices (gcy, ) (Entered: 01/24/2013)
785 MINUTE entry before Honorable Matthew F. Kennelly: The Court has received a letter from Brian Lewis (see docket entries 780 &781) stating that he received payment but that he was "misclassified" and the payment was in an incorrect amount. Class counsel is directed to file a status report by 4/8/13 stating the amount paid to Mr. Lewis and describing the justification for the particular amount.

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04/01/2013 04/02/2013 04/05/2013 04/05/2013 04/10/2013 05/24/2013 10/16/2013 10/23/2013
11/05/2013 11/08/2013
12/09/2013 12/10/2013 01/27/2014

A copy of the report is also to be sent to Mr. Lewis. (mk) (Entered: 03/30/2013)
786 STATUS Report Regarding Brian Lewis by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 04/01/2013)
787 LETTER from Donald Jordan dated dated 2/26/13. (gcy, ) (Entered: 04/03/2013)
788 MINUTE entry before Honorable Matthew F. Kennelly: Class counsel are directed to file a response to the letter from Donald Jordan (dkt. no. 787), by no later than 4/12/13, and are also directed to mail a copy of the response to Mr. Jordan. (mk) (Entered: 04/05/2013)
789 MINUTE entry before Honorable Matthew F. Kennelly: Clerk of Court is directed to place document number 787 under seal because it contains a social security number. Mailed notices (gcy, ) (Entered: 04/05/2013)
793 STATUS Report (Joint) regarding Donald Jordan (dckt 787) by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Entered: 04/10/2013)
794 MINUTE entry before Honorable Matthew F. Kennelly: The Court denies the request of Donald M. Jordan for payment of his claim for the reasons stated in the status report filed by the parties on 4/10/13 (docket no. 793 ). Class counsel are directed to mail Mr. Jordan a copy of this order. Mailed notice (mjc, ) (Entered: 05/28/2013)
795 MOTION by Randy McGee for leave of court to file belated civil action as previously un−notified class member. (mjc, ) (Entered: 10/18/2013)
796 MINUTE entry before Honorable Matthew F. Kennelly: By no later than 11/6/2013, plaintiffs and defendants are directed to respond to Randy McGee's motion to file a belated civil action and are to serve their response(s) on Mr. McGee. Mr. McGee is directed to file a reply to the response by no later than 11/27/2013. Class counsel is directed to mail Mr. McGee a copy of this order. (mk) (Entered: 10/23/2013)
797 RESPONSE by County of Cook, Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to MOTION by Unknown Randy McGee for leave to file 795 (Joint Response) (Tsai, Cindy) (Entered: 11/05/2013)
798 TRANSCRIPT OF PROCEEDINGS held on 3/1/11 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312−435−5785, Laura_M_Brennan@ilnd.uscourts.gov.
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.
Redaction Request due 11/29/2013. Redacted Transcript Deadline set for 12/9/2013. Release of Transcript Restriction set for 2/6/2014. (Brennan, Laura) (Entered: 11/08/2013)
800 RESPONSE by Randy McGee to parties' joint response to petitioner's request for leave of court to file belated civil action; (Exhibits). (mjc, ) (Entered: 12/11/2013)
799 RESPONSE by Unknown Randy McGee to response to motion, 797 (Tsai, Cindy) (Entered: 12/10/2013)
803 REQUEST by plaintiff/petitioner's Randy McGee of decision or status report on pending "movant's response to parties' joint response to petitioner's request forleave of court to file belated civil action." (mjc, ) (Entered: 02/05/2014)

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01/31/2014 01/31/2014
02/11/2014 02/15/2014 11/07/2014 02/11/2015 02/28/2015
03/11/2015
03/20/2015 03/27/2015
06/09/2015 06/22/2015 08/26/2015
10/27/2015

801 ENTERED IN ERROR (Main Document 801 replaced on 2/3/2014) (pjg, ). (Entered: 01/31/2014)
802 ORDER Entered by the Honorable Matthew F. Kennelly on 1/31/2014: For the reasons stated below, the Court construes Randy McGee's motion for leave of court to file a belated civil action as a motion to file a late claim and hereby grants the motion (dkt. no. 795 ). Mr. McGee's claim is to be paid within 21 days of this order. Class counsel are directed to provide Mr. McGee with a copy of this order. Mailed notice (tlm) (Entered: 01/31/2014)
804 STATUS Report by Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young (Tsai, Cindy) (Docket Text Modified by Clerk's Office)(mr, ). (Entered: 02/11/2014)
805 MINUTE entry before the Honorable Matthew F. Kennelly: The Court terminates as moot Randy McGee's motion for a status report 803 . (mk) (Entered: 02/15/2014)
806 LETTER from Juan Mora dated 11/3/14. (mjc, ) (Entered: 11/18/2014)
807 MOTION by Movant Benito Hernandez to enforce settlement. (ks, ) (Entered: 02/18/2015)
808 MINUTE entry before the Honorable Matthew F. Kennelly: Class member Benito Hernandez has filed a motion alleging that he was underpaid pursuant to the settlement. Class counsel and defendants are directed to file a response to the motion by no later than 3/13/2015 and are directed to mail a copy of their responses as well as a copy of this order to Mr. Hernandez. Mr. Hernandez is given until 3/27/2015 to file a reply to the responses by class counsel and defendants. (mk) (Entered: 02/28/2015)
809 RESPONSE by Plaintiffs Delaney M Charlson, Detrick Deshun Cullum, John Doe, Larry Fisher, Allen Gorman, Carl Gray, Darnell Grigsby, Raymond Hardy, Elroy Henderson, Bradley Hytrek, Kenan D Johnson, Ronald Johnson, William Jones, Gerrad Lamour, Brian D Lewis, Shawn Lewis, Matthew Liptak, Adolph Love, Michael Mejia, Lee Mercado, Carlos Nash, Kim Young, Antione Younger to motion to enforce 807 (Joint) (Attachments: # 1 Exhibit A)(Tsai, Cindy) (Entered: 03/11/2015)
810 REPLY to Response by Class and Defendants' counsel by Movant Benito Hernandez. (ks, ) (Entered: 03/24/2015)
811 ORDER: The Court denies class member Benito Hernandez's motion to enforce settlement [dkt. no. 807]. Based on the response filed by counsel for the defendants, it appears that Mr. Hernandez received the correct settlement payment amount. In his reply, Mr. Hernandez refers to the possibility of additional settlement payments from insurers. However, no such payments have been obtained at this point. Class counsel are directed to mail a copy of this order to Mr. Hernandez. Signed by the Honorable Matthew F. Kennelly on 3/27/2015. Mailed notice(ks, ) (Entered: 03/30/2015)
812 MOTION for Payment from Class Action Suit Young−vs−Cook County by Glenn Rogers (Exhibits). (tlm) (Entered: 06/11/2015)
813 RESPONSE by Plaintiffs Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young to motion for miscellaneous relief 812 Parties' Joint Response to Mr. Rogers' Motion for Payment (Tsai, Cindy) (Entered: 06/22/2015)
814 ORDER: The Court denies Glenn Rogers's motion for payment dkt. no. 812 on the ground that it was not filed within a reasonably prompt and diligent time after the deadline for claims had run and Mr. Rogers realized he had not received payment. Signed by the Honorable Matthew F. Kennelly on 8/26/2015. Mailed notice (aee, ) (Entered: 08/27/2015)
815 MOTION by Unknowns Insurance Company of the State of Pennsylvania, Lexington Insurance Company, Illinois National Insurance Company, AIG Claims, Inc., AIG Specialty Excess to unseal document Trial Exhibits (Attachments: # 1

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 68 of 69

10/27/2015 10/27/2015
11/04/2015 11/05/2015 11/05/2015 11/10/2015 11/10/2015
11/16/2015 11/18/2015 11/20/2015 11/30/2015 11/30/2015 12/02/2015 12/14/2015

Exhibit A, # 2 Certificate of Service)(Sorensen, Colleen) (Entered: 10/27/2015)
816 Unopposed NOTICE of Motion by Colleen P Sorensen for presentment of motion to unseal document, 815 before Honorable Matthew F. Kennelly on 11/4/2015 at 09:30 AM. (Sorensen, Colleen) (Entered: 10/27/2015)
817 NOTICE OF EMAIL NOTIFICATION FAILURE, for document # 815 , 816 sent to Attorney Ghazal Sharifi returned as: Unknown Address Error. Mailed to attorney Ghazal Sharifi Letter re: bounce back email and a Notification of Change of Address form. Notices have been set to No. Counsel must email the Clerk's Office at Docketing_ILND@uscourts.gov when a Notification of Change of Address has been filed to ensure electronic notification is reset. (ea, ) (Entered: 10/28/2015)
818 MINUTE entry before the Honorable Matthew F. Kennelly: Motion hearing held on 11/4/2015 regarding motion to unseal document 815 . Moving party fails to appear. Motion to unseal document 815 is stricken. Mailed notice. (pjg, ) (Entered: 11/05/2015)
819 MOTION by Unknowns AIG Claims, Inc., AIG Specialty Excess, Illinois National Insurance Company, Insurance Company of the State of Pennsylvania, Lexington Insurance Company to unseal document Trial Exhibits (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Sorensen, Colleen) (Entered: 11/05/2015)
820 Unopposed NOTICE of Motion by Colleen P Sorensen for presentment of motion to unseal document, 819 before Honorable Matthew F. Kennelly on 11/10/2015 at 09:30 AM. (Sorensen, Colleen) (Entered: 11/05/2015)
821 MINUTE entry before the Honorable Matthew F. Kennelly: Motion hearing held on 11/10/2015. Motion to unseal document 819 is granted. Order to follow. Mailed notice. (pjg, ) (Entered: 11/10/2015)
822 ORDER: Having reviewed the duly noticed Unopposed Motion of Insurance Company of the State of Pennsylvania, Lexington Insurance Company, Illinois National Insurance Company, AIG Claims, Inc. and AIG Specialty Excess (the "Insurers") to Obtain Trial Exhibits Filed Under Seal, it is hereby ORDERED that the Insurers be permitted to obtain copies of the exhibits filed under seal at Docket Nos. 472 and 475 . Signed by the Honorable Matthew F. Kennelly on 11/10/2015. Mailed notice (ph, ) (Entered: 11/10/2015)
823 MAIL RETURNED, for document # 818 sent to Brian D. Lewis returned as undeliverable, return to sender. No new contact information received. (nsf, ) (Entered: 11/18/2015)
824 MINUTE entry before the Honorable Matthew F. Kennelly: Pursuant to Court order 822 , photocopies of exhibits filed under seal as docket nos. 472 and 475 provided to Shanard Banks, Legal Assistant to Attorney Colleen P. Sorensen of Hinkhouse, Williams, Walsh, LLP by court staff. (pjg, ) (Entered: 11/18/2015)
825 MOTION by Defendant Jeffery Starks for discovery and production of documents. (ph, ) (Entered: 11/24/2015)
827 MAIL RETURNED, for document # 818 sent to Kenan D. Johnson returned as undeliverable, return to sender. No new contact information received. (Aranda, Erica) (Entered: 12/02/2015)
828 MAIL RETURNED, for document # 818 sent to Adolph Love returned as undeliverable, return to sender. New address found, re−mailed to 3331 South Giles Avenue Chicago, IL 60616. (Aranda, Erica) (Entered: 12/02/2015)
826 MAIL RETURNED, for document # 818 sent to Shawn Lewis returned as undeliverable, return to sender. New address found, re−mailed to 1124 W. Wilson Chicago, IL 60640 (Aranda, Erica) (Entered: 12/02/2015)
829 ORDER: The Court denies Jeffrey Starks's motion for discovery [dkt. no. 825 ] because Mr. Starks offers no viable basis for the discovery he requests in this long−closed case. Mr. Starks says the basis for his motion for discovery is that another motion was stricken on November 4, 2015 due to the movant's

Case: 1:06-cv-552 As of: 02/29/2016 12:29 AM CST 69 of 69

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non−appearance. That motion, however, was not filed by Mr. Starks, and it had nothing to do with him. If Mr. Starks wants more information about the case, he (or someone on his behalf) may consult the following website maintained by counsel for the plaintiff class: http://www.loevy.com/class−action /young−strip−search−class−action/. The Clerk is directed to mail a copy of this order to movant Jeffrey Starks, # K−60812, Menard Correctional Center, P.O. Box 1000, Menard, IL 62259. Signed by the Honorable Robert W. Gettleman on 12/14/2015. Mailed notice (ph, ) (Entered: 12/14/2015)
MAILED a copy of order dated 12/14/2015 to movant Jeffrey Starks, # K−60812, Menard Correctional Center, P.O. Box 1000, Menard, IL 62259. (ph, ) (Entered: 12/14/2015)
830 MOTION by Attorney Samantha Liskow to withdraw as attorney for Allen Gorman, Carl Gray, Bradley Hytrek, Ronald Johnson, William Jones, Gerrad Lamour, Matthew Liptak, Lee Mercado, Kim Young. No party information provided (Liskow, Samantha) (Entered: 01/05/2016)
831 NOTICE of Motion by Samantha Liskow for presentment of motion to withdraw as attorney 830 before Honorable Matthew F. Kennelly on 1/14/2016 at 09:30 AM. (Liskow, Samantha) (Entered: 01/05/2016)
832 MINUTE entry before the Honorable Matthew F. Kennelly: Plaintiffs' motion to withdraw the appearance of Samantha Liskow as attorney 830 is granted. (mk) (Entered: 01/13/2016)