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

ROBERT JACKSON, JOSEPH McGRATH,

)

and DERRELL SMITH,

)

)

Plaintiffs,

)

) No. 06 CV 493

-vs-

)

) (Judge Coar)

SHERIFF OF COOK COUNTY,

)

COOK COUNTY, ILLINOIS, AND

)

DIRECTOR, CERMAK HEALTH SERVICES, )

)

Defendants.

)

PLAINTIFF’S MOTION TO CERTIFY CASE AS A CLASS ACTION
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, plaintiffs, by counsel, move the Court to order that this case may be maintained as a class action on behalf of:
All male prisoners at the Cook County Jail who, on and after January 27, 2004, was subjected to the non-consensual insertion of a swab into his penis as part of his admission to the jail.
Grounds for this motion are as follows:
1. As part of the admission procedure to the Cook County Jail, male prisoners are subject to an invasive procedure that involves the insertion of a swab into the prisoner’s penis. This invasive procedure has been applied to more than one thousand persons from January 27, 2004 to the present.
2. Plaintiffs contend that this invasive procedure is undertaken without consent, is conducted in a manner likely to spread disease, is an

- 2 -
unreasonable search and invasion of privacy, and is an unauthorized medical procedure that violates rights secured by the Fourth and/or Fourteenth Amendments.
3. Plaintiffs also contend that the manner in which the procedure is performed is reasonably calculated to spread disease in that the person who inserts the swab into the penis of each male prinoser does not change his rubber gloves after performing the procedure, but instead wears the same pair of gloves while he performs this procedure on numerous other persons.
4. The challenged procedure was applied to each of the named plaintiffs on his admission to the jail. (Corrected Amended Complaint, par. 7.)
5. The claims of the named plaintiffs are typical of those of the class. Plaintiffs attach to this motion as Exhibit 1 sworn declarations from fourteen males who were admitted to the Cook County Jail on the same days as the named plaintiffs.
a. The sworn declarations show that none of the males being admitted to the jail consented to the procedure and that, given the opportunity, each would have declined to have a swab inserted into his penis.
b. The sworn declarations also show that males being admitted to the jail do not have the ability to refuse the swab procedure. Kevin McDufﬁe was subjected to the procedure when he was transferred to the Cook County Jail from the Illinois Department of Corrections. (Sworn Declaration of Kevin McDufﬁe, par. 5.) McDufﬁe had been subjected to the procedure at the Cook County Jail one month before, did not wish to experience the painful experience again, and related these facts to a correctional ofﬁcer at the jail. Id. The

- 3 -
ofﬁcer’s response was "to be quiet." McDufﬁe followed this order: "I knew that if I complained further I would be beaten up by the ofﬁcer." Id. McDufﬁe’s averments are corroborated by a letter to counsel from Kevin Patterson (attached as Exhibit 2), who states, in pertinent part, the following:
[O]n the day in question I had been brought back to court from Dixon Correctional Center for a resentencing hearing and had been remanded to the custody of CCDOC. During the medical portion of the intake procedure I went before this medical med tech (a male) and was told to drop my pants. Since I had been through this procedure time(s) before and knowing how painful it is I informed the med tech that I was from Dixon C.C. and my medical history was in the folder. He stated "I don’t care about that, everyone coming into the jail must be tested" and thus I was made to submit to the test anyway. The procedure entails dropping you[r] pants and shorts the med tech grabs your penis with latex gloved hands. He then squeezed the head of the penis to open the inclosure. He then inserted the swab, (the entire cotton part) into the head of my penis. A very painful process.
c. In addition, the sworn declarations show that the pain from the swab procedure often continues for several days, and in some cases for a week or more. See, e.g., Sworn Declaration of Jamal J. Davis, par. 7; (three days); Sworn Declaration of Lawrence Howard, par. 7 (three days) Sworn Declaration of Jerome Johnson, par. 7 (28 days); Sworn Declaration of Leonard Pittman, par. 7 (4 days); Sworn Declaration of John O. Williams, par. 7 (3 days).
d. Moreover, the sworn declarations show that the procedure often involves the handling of the prisoner’s penis. Sworn Declaration of Jamal J. Davis, par. 8; Sworn Declaration of Lawrence Howard, par. 8; Sworn Declaration of Larry E. Lawson, par. 8; Sworn Declaration of Kevin McDufﬁe, par. 7;

- 4 -
Sworn Declaration of Leonard Pittman, par. 8; Sworn Declaration of John O. Williams, par. 8;
6. Further evidence that the case presents common questions of fact and law is found in the transcript of the trial before Judge Kennelly in Thompson v. County of Cook, 03 CV 7172.
a. The medical techs who insert the swab into the penis wear rubber gloves but do not changes their gloves after testing each prisoner. (Testimony of James Gray, Thompson v. County of Cook, 03 CV 7172, February 2, 2006, 46, attached as Exhibit 3.)
b. A medical tech will typically test 200 to 300 persons and use two to ﬁve pairs of gloves. (Testimony of James Gray, Thompson v. County of Cook, 03 CV 7172, February 2, 2006, 47.)
c. "Reality forces us [the medical personnal at the jail in charge of screening] to somwwhat compromise our care." (Testimony of Jean Kiriazes, Director of CQI Serivces and Risk Management at Cerman Hospital, Thompson v. County of Cook, 03 CV 7172, February 4, 2006, 52, attached as Exhibit 4.)
7. The intake procedure challenged by plaintiffs presents common questions of fact and law, including the following:
a. Is the procedure undertaken without consent? And, if so, is consent required by the Fourth and/or Fourteenth Amendments?
b. Does the procedure violate rights secured by the Fourth and/or Fourteenth Amendments?
c. Is the manner in which the procedure is performed reasonably calculated to spread disease and, if so, is this a violation of rights secured by the Fourth

- 5 -
and/or Fourteenth Amendments?
8. Plaintiffs are represented by competent counsel and will fully and adequately represent each subclass.
9. Class certiﬁcation is appropriate under Rule 23(b)(3) because common questions predominate over individual issues and a class action is superior to other methods for the fair and effective adjudication of the controversy.
It is therefore respectfully requested that the Court order that the case proceed as a class action under Rule 23(b)(3).
/s/ Kenneth N. Flaxman ________________________ KENNETH N. FLAXMAN ARDC No. 830399 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com
THOMAS G. MORRISSEY 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900 (phone) (773) 239-0387 (fax) tgmlaw@ameritech.net
attorneys for plaintiffs

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of September, 2006, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Francis J. Catania, Ass’t State’s Atty, 50 W Washington St, Room 500, Chicago, IL 60602, and Daniel F. Gallagher, Esq., Query & Harrow, Ltd., 175 W Jackson Blvd, Ste 1600, Chicago, IL 60604-2827, and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 
 oj)

KC F I L E DC;

IN THE UNITED STATES DISTRICT COURT

JAN 2 7 2006

FOR THE NORTHERN DISTRICT OF ILLINOIS MI!lHMb W, POIlIlINS

EASTERN DIVISION

eLf~K, U.9. DISTRICT COUR,(

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

)

)
)

06C 0498

)

No. 06 CV

)

)

(jury demand)

)
)

JUOGECOAR

)

)

\4AafS~n JUO<JB U!::'1l"11\1

COMPLAINT

Plaintiff, by counsel, alleges as follows:

1. This is a civil action arising under 42 U.S.c. §1983. The jurisdiction of this Court is conferred by 28 U.S.c. §1343.

2. Plaintiff Robert Jackson is a resident of the Northern District of Illinois.

3. Defendants are the Sheriff of Cook County and Cook County, lllinois. The Sheriff is sued in his official capacity, only. Plaintiff joins Cook County in this action in accordance with Caf1Jer v. Sheriff of LaSalle County, 324 F.3d 947 (7th Cir. 2003).

4. On or about February 4, 2004, plaintiff was admitted to the Cook County j ail as a pre-trial detainee.

5. As part of his admission to the jail, plaintiff was subjected to the insertion of a swab into his penis.

6. The insertion of a swab into plaintiff's penis unreasonably invaded his privacy and caused him discomfort.

-2-
7. The insertion of a swab into plaintiff's penis was conducted in accordance with an explicit policy of the Sheriff of Cook County or, in the alternative, with a practice that was so permanent and well-settled at the Cook County Jail that it constitutes a custom or usage with the force of law.
8. As the direct and proximate result of the above referred policy of defendant Sheriff, plaintiff was deprived of rights secured by the Fourth Amendment.
9. Plaintiff hereby demands trial by jury.
Wherefore plaintiff requests that judgment be entered in his favor and against defendant in an amount in excess of one hundred thousand dollars.
IliIInl1l1"'an
KENNETH . FLAXMAN
ARDC No. 830399 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)
attorney for plaintiff'"

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

ROBERT JACKSON, JOSEPH McGRATH, and DERRELL SMITH,
Plaintiffs,
-vs-
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS, AND DIRECTOR, CERMAK HEALTH SERVICES,
Defendants.

) ) ) ) ) No. 06 CV 493 ) ) (Judge Coar) ) ) ) ) )

CORRECTED AMENDED COMPLAINT

Plaintiffs, by counsel, allege as follows:

1. This is a civil action arising under 42 U.S.C. §1983. The jurisdiction of this Court is conferred by 28 U.S.C. §1343.

2. Plaintiff Robert Jackson, Joseph McGrath, and Derrell Smith are residents of the Northern District of Illinois.

3. Defendants are the Sheriff of Cook County, Cook County, Illinois and the Director of Cermak Health Services. The Sheriff and Director are each sued in his (or her) ofﬁcial capacity, only.

4. On or about February 4, 2004, plaintiff Robert Jackson was admitted to the Cook County jail as a pre-trial detainee.

5. On or about December 27, 2005, Joseph McGrath was admitted Cook County jail as a pre-trial detainee.

to the

- 2-

6. On or about July 20, 2004, Derrell County jail as a pre-trial detainee.

Smith was admitted to the Cook

7. As part of their admission to the jail, each plaintiff was subjected non-consensual insertion of a swab into his penis.

to the

8. The insertion of a swab into each plaintiff’s penis unreasonably invaded his privacy, constituted an unauthorized medical procedure, and caused each plaintiff personal injury and discomfort.

9. The insertion of a swab into each plaintiff’s penis was conducted in

a

manner reasonably calculated to spread disease: the person who inserted

the swab into each plaintiff’s penis wore the same pair of rubber gloves

when he inserted a swab into the penis of numerous

other pre-trial

detainees.

10. The insertion of a swab into the penis of pre-trial detainees was conducted in accordance with an explicit policy of the Sheriff of Cook County or an explicit policy of Cermak Health Services or, in the alternative, was a practice that was so permanent and well-settled at the Cook County Jail that it constitutes a custom or usage with the force of law.

11. As the direct and proximate result of the above referred policy, each plaintiff, and all other persons subjected to the above referred policy, incured pain and suffering and was deprived of rights secured by the Fourth and Fourteenth Amendments.

12. Plaintiffs bring this action for a class of all male pre-trial detainees at the Cook County Jail who, on and after January 27, 2004, was subjected to the non-consensual insertion of a swab into his penis as part of his

- 3-
admission to the jail. The proposed class satisﬁes each of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. The relief sought is appropriate damages for each person subjected to the policy and class certiﬁcation is appropriate under Rules 23(b)(3).
13. Plaintiff hereby demands trial by jury.
Wherefore each plaintiff requests that judgment be entered in his favor in an amount in excess of one hundred thousand dollars, that judgment be entered in favor of the proposed class and that the Court grant such relief for the each member of the proposed class as may be appropriate.
/s/ Kenneth N. Flaxman ________________________ KENNETH N. FLAXMAN ARDC No. 830399 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com
THOMAS G. MORRISSEY 10249 South Western Avenue Chicago, Illinois 60643 (773) 233-7900 (phone) (773) 239-0387 (fax) tgmlaw@ameritech.net
attorneys for plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on the 31st day of January, 2006, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: NONE and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: NONE.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

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

ROBERT JACKSON, JOSEPH McGRATH, and DERRELL SMITH
Plaintiffs,
v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS and DIRECTOR, CERMAK HEALTH SERVICES,
Defendants.

) ) ) ) ) No. 06 C 0493 ) ) HONORABLE DAVID H. COAR ) ) ) ) )

MEMORANDUM OPINION AND ORDER Now before this court is the Motion to Certify Plaintiff Class filed by plaintiffs Robert Jackson (“Jackson”), Joseph McGrath (“McGrath”), and Derrell Smith (“Smith”) (collectively “Plaintiffs”) against Defendants Sheriff of Cook County (“Sheriff”), Cook County of Illinois (“Cook County”), and Director of Cermak Health Services (“Cermak”) (collectively “Defendants”). For the reasons set forth below, Plaintiffs’ motion for class certification is GRANTED.
BACKGROUND1 The instant Plaintiffs were admitted to the Cook County Jail as pre-trial detainees at varying dates,2 where they were allegedly forced to undergo a screening test for sexually

1For the purposes of this motion, Plaintiff’s well-pleaded allegations are taken as true. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974).
2Jackson was admitted on February 4, 2004, McGrath on December 27, 2005, and Smith on July 20, 2004.
-1-

transmitted disease (“STD screening”). Though some details of their accounts vary, the general process was the same in all cases. Upon arriving at the jail, Plaintiffs signed medical release forms and questionnaires as part of the admission procedure. One of these forms contained a “Consent for Treatment” decree, apparently signed by all three putative representatives, that read as follows:
I consent to a medical and mental health history and physical including screening for tuberculosis and sexually transmitted diseases as part of the intake process of the Cook County Jail....[signed by prisoner]. See Resp. to Cert. Mot. Ex. A at 18, Ex. B at 16, Ex. C at 17. All admitted prisoners were lined up to enter an examination room within the medical intake area. Once inside, a medical technician from Cermak Health Services asked the prisoners to lower their pants. The technician would then insert a cotton swab into the tip of each prisoner’s penis, apparently in order to collect a tissue sample for testing.3 At all times, jail deputies were nearby, though it is not entirely clear where they were usually stationed with respect to the examination area.4 On January 27, 2006, Plaintiff Jackson filed a complaint alleging violation of his constitutional rights under the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983. The Complaint was amended on January 31, 2006 to include additional Plaintiffs McGrath and Smith, and corrected on February 1, 2006. Plaintiffs in this case have now filed a motion for class certification. The putative plaintiff class consists of “[a]ll male prisoners at the Cook County Jail who, on and after January 27, 2004, was [sic] subjected to the non-consensual
3The particulars of this particular point in the process vary, as some accounts claim that: the swabbing was done over a garbage can; the technician failed to change his glove before administering the test to subsequent prisoners; and that either the prisoner held his own penis during the procedure or his penis was held by the technician.
4See, e.g., Smith Dep. at 51 (placing the guard in the doorway of the room). -2-

insertion of a swab into this penis as part of his admission to the jail.” Cert. Mot. at 1. In
support of their motion to certify the class, Plaintiffs have submitted fourteen (14) “Sworn
Declarations” from men who had been admitted into the Cook County Jail.5 See Cert. Mot., Ex.
1. These declarations rely upon roughly identical text to state their support of the class and the
declarant’s potential membership in it:6
The undersigned, under penalties of perjury, certifies that the following statement are [sic] true: 1-2. [summary of individual’s biographical information, including
name, date of admission, CIMIS number, and age at the time] 3. On admission to the Cook County Jail, I was subjected to a
procedure which I understand to be known as the insertion of a urethral swab into my penis. 4. I did not consent to this procedure [and tried to refuse]. 5. I would not have agreed to undergo this procedure if I had been given a choice. 6. The procedure was painful and an embarrassing intrusion into a private part of my body. 7. I was in pain for [___] day(s) after the procedure. 8. The person who performed the procedure held my penis with his hand while inserting the swab. Id.
5These declarations were made by: Kamal J. Davis, Troy O. Hampton, Lawrence A. Howard, Crasseros Jackson, Jerome Johnson, Thomas Kelly, Sylvester Kimbrew, Larry E. Lawson, Kevin McDuffie, Calvin K. Odisho, Vincent D. Papaccio, Leonard Pitman, Michael Rodriguez, and John O. Williams.
6Bracketed language indicates wording that varied from one declaration to another, or which was absent from one or more of the declations.
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LEGAL BACKGROUND The federal Rules of Civil Procedure provide the federal district courts with broad discretion to determine whether certification of a class-action lawsuit is appropriate. Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998). When evaluating a motion for class certification, the court accepts as true all well-pleaded allegations made in support of certification. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974); Hardin v. Harshberger, 814 F.Supp. 703, 706 (N.D.Ill. 1993). The party seeking class certification bears the burden of showing that the requirements for the class certification have been met. Carlisle, 417 U.S. at 179; see also Patterson v. Gen. Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), cert. denied, 451 U.S. 914 (1981). Failure to establish any one of the requirements precludes class certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584 (7th Cir. 1993). Rule 23 of the Federal Rules of Civil Procedure governs the requirements of class certification. Under that rule, deciding a motion for certification requires a two-step analysis. First, the named plaintiff must satisfy the four threshold pre-requisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Second, the action must qualify under one of the three subsections of Rule 23(b); in this instance, the Plaintiffs seek to qualify under 23(b)(3), meaning they must establish that questions common to all members of the class predominate and that a class action would be the most effective approach to resolving the matter. In order to determine whether or not these criteria have been met, it is not appropriate to examine the substantive merits of the case itself. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (finding that the court deciding certification has no “authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether
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it may be maintained as a class action”). Nonetheless, it is necessary to “make a ‘preliminary inquiry...that has as its focus not the substantive strenth or weakness of the plaintiffs’ claims but rather the merits of those allegations that bear on the suitability of a case for class treatment under Rule 23(a) and (b).’” Rahim v. Sheahan, 2001 WL 1263493 at *10 (N.D.Ill. Oct. 19, 2001) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)).
ANALYSIS Because the Plaintiff have met all of the prerequisites of 23(a), as well as the criteria of 23(b)(3), their motion for class certification is GRANTED.
Numerosity Rule 23(a)(1) is satisfied if “the class is so numerous that joinder of all members is impracticable.” This places a positive burden on the party seeking to certify the class to show that there are enough class members that it would not make sense to bring them all into court. Plaintiffs are not required to specify the exact number of class members. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978). An approximation of the proposed class size can be based on common-sense assumptions and estimates. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (D. Ill. 1996). However, failure to provide an estimate, or means for making such an estimate, can prove fatal to a certification motion. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) (holding that plaintiffs “cannot rely on conclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity”) (citing Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)). While there is no set minimum number of plaintiffs required for class certification, Courts have generally recognized that joinder is impracticable where a class contains more than 40 members. Johnson v. Rohr-Ville Motors, Inc., 189 F.R.D.
-5-

363, 368 (D. Ill. 1999) (citing Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th
Cir. 1969).
Defendants are correct that Plaintiffs have not given this Court a definite idea of how
many members its putative class will contain. At present, it is only clear from the record that
seventeen current or former prisoners have a potential claim against Defendants; the three named
Plaintiffs and the additional fourteen declarants.7 While the definiteness of the total number of
class members is a factor to consider in weighing considerations for or against certification, in
this instance it is nonetheless clear that the putative class will be sufficiently large. As Plaintiffs
previously stated, the alleged “invasive procedure has been applied to more than one thousand
persons from January 27, 2004 to the present.” Cert. Mot. at at 1. The class will likely expand
to include nearly all prisoners admitted into the Cook County Jail within the Plaintiffs’ proposed
temporal range. Though somewhat variable due to prisoners who opt out, or unusual cases in
which the roughly standardized procedures were not applied, it is clear that this putative class is
sufficiently numerous for determining that certification would be more efficient than resolution
through joinder or multiple legal actions.8
7Defendants maintain that because the supporting declarations use boilerplate language their veracity as personalized accounts is suspect and they should not be given significant weight. However, repeated language does not prove that the experience was not common to all of these declarants, and there was in fact some effort to individualize the declarations, e.g., the medical technician's approach, or the number of days of pain following the procedure, differed from one account to another.
8 Plaintiffs’ fourteen declarations were collected by contacting only three days’ worth of prisoners admitted into the Cook County Jail. Cert. Mot. at 2-4; Resp. to Cert. Mot. at 5. Even if class membership were limited to prisoners who sign such a declaration, Plaintiffs have thus far gained an average of 4b additional members for every considered day of admission into the jail. The proposed definition of the class, which would cover all prisoners admitted since January 27, 2004, would cover hundreds of days, and would therefore provide the requisite
-6-

Defendant maintains that a mailing was sent to all prisoners currently held in the Cook County Jail system. Plaintiffs admit that this is true. Reply in Supp. of Cert. Mot. at 4 . Defendant also argues that Plaintiffs have had adequate time to seek out declarants regarding the typicality of the allegations and have only had limited success in their efforts. Resp. to Cert. Mot. at 5. However, Plaintiffs failure to more definitely determine the ultimate size of the class, despite their time and effort, is not terminal. As stated above, this class action will likely include a large majority of prisoners who have had the screening process applied to them, and a sufficiently high number of class members to warrant the greater efficiency of the class action process. Because enough information has been provided to make this determination, Plaintiffs have relied on more than mere “conclusory allegations that joinder is impractical or on speculation as to the size of the class in order to prove numerosity.” See Marcial, 880 F.2d at 957. Rather, they have provided adequate information from which a large, if indefinite, number of class members can be discerned.
Commonality/Typicality9 Rule 23(a)(2) calls for the "existence of at least one issue of fact or law common to all class members." Meiresonne v. Marriott Corp., 124 F.R.D. 619, 622 (D. Ill. 1989). "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2),” id., and under the rule the existence of some factual variation among class members will not defeat a class action, Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992).
numerosity. 9These two criteria are often analyzed together, see Rosario v. Livaditis, 963 F.2d 1013,
1017 (7th Cir. 1992), as this Court now does. -7-

Plaintiffs assert that there are several common questions of fact or law, namely: Is the procedure undertaken without consent? And, if so, is consent required by the Fourth and/or Fourteenth Amendments? Does the Procedure violate rights secured by the Fourth and/or Fourteenth Amendments? Is the manner in which the procedure is performed reasonably calculated to spread disease and, if so, is this a violation of rights secured by the Fourth and/or Fourteenth Amendments?
Pl.’s Cert. Mot. at 4-5. While there are some factual discrepancies among members of the putative plaintiff class, there are nonetheless common issues of fact and law to justify class certification.
Defendants rely too much on select factual determinations that might bary on a case-bycase basis, and which in some way might affect the screening process for individual putative class members. Rather than seeking to establish that the prisoner consent was valid in some instances and invalid in others, Plaintiffs maintain that, as a rule, the manner in which the screening process is conducted precludes valid consent: “Plaintiffs intend to show in their impending motion for summary judgment that the totality of circumstances at the receiving unit makes it impossible for anyone to give a valid consent to the insertion of the urethral swab.” Pl.’s Reply in Supp. of Class Cert. at 11. This framing of the issue effectively shifts the debate toward questions that are resolvable without delving into an individualized analysis of minor factual discrepancies. See, e.g., Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 (7th Cir. 2006) (upholding class certification despite member differences because the answers to the distinguishing question – the presence or absence of a firm offer – were not dispositive of the ultimate legal determinations).
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Similarly, the class definition satisfies the demands of Rule 23(a)(3), which requires that the claims of the class representatives be typical of those of other class members. A typical claim arises “from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Further, “similarity of legal theory may control even in the face of different facts.” Id. Here, the underlying factual basis was the same for all prisoners admitted to the Cook County jail; they were all admitted and screened, and a variety of different factors may or may not have combined to invalidate the boilerplate consent that they gave. The legal argument that comes out of this is that the prisoners’ constitutional rights under the Fourth and/or Fourteenth Amendments were violated. Despite minor difference in how the underlying process was executed, this indeed suffices to establish that all prisoners that underwent this screening share a common nucleus of facts, and that the Plaintiffs’ legal theory would carry over to any of them.
Representativeness Rule 23(a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” This inquiry is generally broken into two component parts: (1) whether Plaintiff's counsel possesses the sufficient qualifications and experience to litigate a class action lawsuit in federal court; and (2) whether Plaintiff has interests that are antagonistic to or in conflict with those of other class members. Defendant has not challenged the general adequacy of counsel in this case, and this Court sees no reason to doubt that it is adequate. Defendant does raise a question about the techniques used by Plaintiffs’ counsel in finding their clients in this instance. Resp. to Cert. Mot. at 4.
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However, this is unavailing – whether or not Plaintiffs were fully aware of their constitutional protections before they were approached by Mr. Flaxman and Mr. Morrissey has little to do with counsel’s ability to zealously advocate for the entire class from this point forward.
In addition, there is nothing to indicate that the Plaintiffs’ interests will be “antagonistic to those of the rest of the class.” While Defendants make a great deal out of the Second Circuit’s choice to consider Plaintiffs’ credibility of individuals, Resp. to Cert. Mot. at 8-9, they have not advanced evidence of dishonesty that would make this Court question their ability to stand as class representatives. Defendants’ suggestion that McGrath’s status as an “admitted heroin addict” should make his credibility “highly suspect” is not convincing, see Resp. to Cert. Mot. at 9, particularly where class membership is made up entirely of prisoners, many of whom have a history of criminality and/or drug abuse.
Predominance of Common Questions Rule 23(b)(3), which provides the grounds for Plaintiffs’ motion, requires that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997). “The matters pertinent to the finding [under Rule 23(b)(3)] include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action.” Fed. R. Civ. P. 23(b)(3). In considering these
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requirements, “the court must review the substantive elements of plaintiffs’ cause of action, the proof necessary for the various elements and the manageability of the trial on these isuses.” Rodriguez v. Ford Motor Credit Co., 2002 WL 655679 at *4 (N.D. Ill. Apr. 18, 2002) (citing Simer, 661 F.2d at 672)). “Where liability determinations are both individual and fact-intensive, class certification under Rule 23(b)(3) is improper.” Oshawa, 225 F.R.D. at 584 (citing Rodriguez, 2002 WL 655679 at *4)).
The “predominant” question is whether or not Defendants unconstitutionally performed the screening process without achieving valid consent from the prisoners. Largely because of the manner in which Plaintiff has framed this question – as a categorical determination that applies to all individuals subjected to that process – there is no reason to think that minor factual discrepancies will counterbalance the importance of this overarching issue. The most difficult and all-encompassing question of consent, and Defendants’ alleged nefarious intent, can be decided and applied to all potential members. These questions will predominate, addressing far weightier factual and legal issues than minor individual deviations from the standard jail practices in question.
The second part of 23(b)(1)(3) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” It is true that individualized factfinding with respect to each putative class member can undermine the potential benefits of class action status. See Fisher v. Britol-Myers Squibb Co., 181 F.R.D. 365, 373 (N.D. Ill. 1998) (finding that there is little efficiency when court would need to engage in“extensive individualized proceedings regardless of whether we certify a class”); Crato v. Estate of Kassel, 63 F.R.D. 18 (S.D.N.Y. 1974) (finding certification of plaintiff class, or subgroups of a plaintiff
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class, inappropriate in case of fraud because each member would be required to testify on the representations that were made to them). However, in this instance the factual determination required in every given instance would be a relatively straightforward one; if the Plaintiffs successfully establish that the screening process was necessarily non-consensual, determining membership would be a simple matter of deciding who went through that process. Any additional factual analysis of individual circumstances would be limited, as stated above.
Even if it were necessary to conduct a mini-hearing to establish that each of the individual putative class members was indeed subject to the practices outlined in Plaintiffs’ allegations, which should not be the case, this would still be more efficiently done if this court is first able to categorically address the alleged unconstitutional process itself. To rehear this same question for each prisoner defies logic, and the case therefore demands the efficiency of scale that Rule 23 provides. As the matter is framed by Plaintiffs, membership in the class will be determined by whether or not a given prisoner underwent the STD screening. This is well within the realm of reasonable membership determinations that courts of this circuit have found appropriate in the past.
This outcome is supported by the application of another, implicit requirement that this circuit has read into the explicit criteria of Rule 23; that the definition of the proposed class be "adequately defined and clearly ascertainable." Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981). If Plaintiffs were in fact arguing that some of the prisoners admitted into the Cook County Jail had consented, the margins of that class would be subjective and difficult to determine without a thorough factual analysis of each prisoner's experience. If that were the case, Plaintiffs would fail to meet the implicit criterion adopted by the Seventh Circuit. Id. However where, as here,
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the Plaintiffs maintain that the process itself is constitutionally suspect, they have presented an issue that can and should be addressed categorically with respect to all similarly-situated prisoners.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for class certification is GRANTED.

Enter:

Dated: December 14, 2006

/s/ David H. Coar David H. Coar United States District Judge

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

ROBERT JACKSON, JOSEPH McGRATH, and DERRELL SMITH
Plaintiffs,
v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS and DIRECTOR, CERMAK HEALTH SERVICES,
Defendants.

) ) ) ) ) No. 06 C 0493 ) ) HONORABLE DAVID H. COAR ) ) ) ) )

MEMORANDUM OPINION AND ORDER The parties to this action are: Plaintiffs Robert Jackson (“Jackson”), Joseph McGrath (“McGrath”), and Derrell Smith (“Smith”) on behalf of a certified class (collectively “Plaintiffs” or “the class”); Defendant Sheriff of Cook County (“Sheriff”); and Cook County of Illinois (“Cook County”) along with the Director of Cermak Health Services (“Cermak”), an operating unit of the Cook County Bureau of Health (collectively “Cermak Defendants”). Now before this court are the following motions: Plaintiffs’ Motion for partial summary judgment on liability (Doc. No. 98); Defendant Sheriff’s Motion for Summary Judgment (Doc. No. 103); Defendants Cermak and Cook County’s Motion for Summary Judgment (Doc. No. 104); and Defendants’ motions to dismiss (Doc. Nos. 30, 35).1 For the reasons stated below, the motions for summary

1The parties have also filed motions to strike portions of the Rule 56.1 statements (Doc. Nos. 129, 163). To the extent that the evidence disputed in those motions was not determinative in deciding the motions for summary judgment, these motions are DENIED as moot.
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judgment are DENIED, and Defendants’ motions to dismiss are DENIED in part and GRANTED in part.
BACKGROUND The named Plaintiffs represent a class of former inmates of the Cook County Jail who were subjected to a screening test for sexually transmitted diseases during the facility’s intake process. Following a bond hearing, all pre-trial detainees admitted to the jail were taken to the Receiving, Classification, Diagnostic Center (“RCDC”) for intake into the facility. The medical testing portion of this process included x-rays, a medical history, and a urethral swabbing used to screen for chlamydia and gonorrhea (“STD screening”). Each prisoner would enter the STD screening room one by one and stand behind a privacy screen, where a Cermak certified medical technician (“CMT”) was waiting to execute the swabbing itself. The CMT asked each prisoner to lower his pants, inserted a cotton swab two to four centimeters into the prisoner’s penis, rotated the swab, and extracted it in order to collect the required sample for testing. Some aspects of the process varied from prisoner to prisoner, such as whether or not the prisoner’s penis was held during this process and, if holding was necessary, whether the CMT or the prisoner did the holding. CMTs wore gloves at all times when in contact with the prisoners, although the frequency with which they changed these gloves and the ultimate purpose for wearing them is in dispute. In addition, it is also in dispute whether or not the procedure was conducted over a garbage can in order to catch possible discharge during the procedure. Each prisoner was asked to sign a release and consent form for the medical procedures, which included the following language: “I consent to a medical and mental health history and
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physical including screening for tuberculosis and sexually transmitted diseases as part of the intake process of the Cook County Jail.” See Resp. to Cert. Mot. Ex. A at 18, Ex. B at 16, Ex. C at 17. In at least some instances these forms were signed after the screening process, rather than before. Some parties have claimed to have encountered physical coercion themselves or witnessed it being applied to others by jail guards. It is generally unclear what level of knowledge of the procedure prisoners had as they began the swabbing procedure, for although there was an informational poster in place and some CMTs would solicit questions or provide information regarding the process, the degree of understanding of prisoners remains unclear.
Cermak is a division of the Cook County Bureau of Health and is therefore distinct from the Sheriff who was responsible for running Cook County Jail. Cermak employees entered the jail in order to conduct these intake tests and executed all aspects of the screening itself. However, because the screening took place inside the jail, the process was a collaborative one, Rodriguez Dep. at 43, with jail staff standing nearby at all times in order to ensure security and forward progress. A general order promulgated by the Sheriff supports the use of medical screening during intake, stating that all admitted prisoners should go through such a process.
Plaintiffs filed a complaint citing violations of their constitutional rights under the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983, which took its final form as of February 1, 2006 (Docket No. 7). In that complaint, Plaintiffs claim that the search violated their constitutional rights, protected under 42 U.S.C. § 1984, and that the manner in which the test was conducted was calculated to spread disease. On December 14, 2006, this court certified a class made up of: “All male prisoners at the Cook County Jail who, on and after January 27,
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2004, was [sic] subjected to the non-consensual insertion of a swab into his penis as part of his admission to the jail.” (Docket No. 101).
LEGAL BACKGROUND A party seeking summary judgment has the burden of showing, through “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that there are no genuine issues of material fact that would prevent judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). On a motion for summary judgment, courts “must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party.” Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380 (7th Cir. 2001). Even so, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In order to successfully oppose a motion for summary judgment, the non-movant must do more than raise a “metaphysical doubt” as to the material facts, see Wolf v. Northwest Ind. Symphony Soc‘y, 250 F.3d 1136, 1141 (7th Cir. 2001) (citation and quotation omitted), and instead must present definite, competent evidence to rebut the motion, see Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001); Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material
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dispute of fact exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Rule 56(c) mandates the entry of summary judgment against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. A non-moving party who bears the burden of proof on a specific issue must demonstrate by specific factual allegations that there is a genuine issue of material fact in dispute. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989). This evidence provided by the non-movant must be sufficient to enable a reasonable jury to find in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
Mere allegations in the pleadings, unsupported by record evidence, cannot create an issue of fact defeating summary judgment. Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). The Seventh Circuit has also made it clear that “self-serving affidavits, without any factual support in the record, are insufficient to defeat a motion for summary judgment.” Palmer v. Marion County, 327 F.3d 588 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) as stating that “[t]he object of [Rule 56(e) ] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.”); see also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (clarifying that such evidence is valid to the extent that it is “based on personal knowledge and [sets] forth specific facts showing that there is a genuine issue for trial”).
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ANALYSIS This Court now considers the possibility that the STD screening represents an unconstitutional search or invasion of privacy and, if it is unconstitutional, who is responsible for the violation. As an initial matter, it should be noted that this case has proceeded to this stage under a particular formulation. At certification, Plaintiffs maintained an intent “to show in their impending motion for summary judgment that the totality of circumstances at the receiving unit makes it impossible for anyone to give a valid consent to the insertion of the urethral swab.” Therefore, to the extent that Plaintiffs’ assertions represent unique accounts of individual experiences in the intake process, they are largely irrelevant to a determination of the summary judgment motions; to the extent that the conditions and experiences within the RCDC are not common to the class as a whole, they are either irrelevant to the suit as it now stands or urge reconsideration of certification.
Applicable Constitutional Principles This case centers on whether the urethral swab that was administered to all admitted prisoners amounts to an impermissible search. "There is no principle more firmly rooted in our constitutional jurisprudence than that warrantless search is presumptively illegal.” U.S. v. Gamble, 473 F.2d 1274, *1276 (7th Cir. 1973). In addition, inmates have a constitutional interest in being able to decline unwanted medical procedures. Cruzan v. Dir. Missouri Dep't of Health, 497 U.S. 261, 278-79, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Defendants claim that the due process protections of the Fourteenth Amendment should be applied to this case instead of the Fourth Amendment analysis that Plaintiffs have urged. See,
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e.g., Cermak Defs.’ Mot. to Dismiss Mem. at 3-7. Defendants are correct that Plaintiffs’ cited cases do not unequivocally support the application of the Fourth Amendment to this case. See Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004) (distinguishing restraint of a prisoner, to which Fourth Amendment was applied, and forced catheterization, which required due process analysis). However, Plaintiffs’ filings do not limit themselves to the Fourth Amendment analysis, as Defendants claim, but rather assume that both or either protections might be applicable. Corr. Am. Compl. ¶ 11. In subsequent filings, all parties have focused a great deal of energy on Fourth Amendment law. That approach was valid.
The Fourth Amendment provides the appropriate standard by which to consider whether the STD screening was constitutional. Courts have applied Fourth Amendment protections to the collection of bodily substances for analysis or the intrusive inspection of a plaintiff’s body when performed on an individual.2 See, e.g., Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (applying the Fourth Amendment to the non-consensual drawing of blood). Fourth Amendment analysis has also been upheld in cases where the intrusion was performed on a universal or class-wide basis. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989) (upholding Fourth Amendment analysis of the drawing of blood, use of a breathalyzer, and collection and testing of urine performed on all railroad employees); Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. [CITE] . 1861 (1979)
2Defendant Sheriff has attempted to distinguish Schmerber and other applications of Fourth Amendment to prisoner searches on the grounds that it involved an ongoing criminal investigation. Sheriff’s Summ. J. Resp. at 5. However, in that brief Sheriff goes on to consider several different instances in which the analysis was applied to cases similar to the instant one, and though there is a distinction between the manner in which criminal investigations and prison needs contend with the demands of the Fourth Amendment, those differences are properly subsumed under the “special needs” analysis discussed below.
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(post-visitation body cavity search in prison); Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992) (post-visitation urine analysis in prison). However, it is also true that forcible or unwanted medical procedures have been scrutinized on a due process basis, most often when performed on an individual. See, e.g., Cruzan, 497 U.S. 261.
The STD screening in question falls somewhere between the search procedures to which Fourth Amendment analysis applies and the medical procedures that typically require due process analysis. See Cermak Defs.’ Facts ¶ 19(a) (“The reasons for administering the STD test are to protect the community at large, as well as to detect and treat STDs within the Cook County jail population”). However, the case is more appropriately considered as a screening measure put in place to protect the general population. Therefore, it is not inappropriate to determine the reasonableness of the procedure in light of the Fourth Amendment. Accord Thompson v. County of Cook, 412 F.Supp.2d 881, 890-91 (N.D. Ill. 2005) . In any event, as other courts have noted there is significant overlap in the analysis required to determine reasonableness under the Fourth and Fourteenth Amendments. Therefore, even if this Court were to apply the somewhat different standards of the Fourteenth Amendment, the analysis would still involve a fact-intensive inquiry that cannot be decided at summary judgment.
This Court now considers whether the procedure was valid as an exception to the presumption against non-consensual searches, either because (1) it was reasonable in the context in which it was performed, or (2) the Plaintiffs knowingly and willingly consented to the procedure.
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Reasonable as a Matter of Special Need The Fourth Amendment forbids only those searches and seizures that are unreasonable, as its purpose is “to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances.” Schmerber, 384 U.S. at 768. Therefore, this Court must first consider whether or not the testing, when viewed in the totality of the circumstances in which it was performed and any relevant penological interests, was reasonable and therefore immune to constitutional constraints. Plaintiffs maintain that the balancing weighs in their favor because of the invasive nature of the test and Defendants’ failure to adequately define the government interest at stake. Defendants claim that their actions were done to further the health interests of the prison community and the community at large. See Sheriff Def.’s Resp. to Summ. J. Mot. at 8-9 (“[T]he sole purpose Cermak performs the STD test is to diagnose, treat, and control the spread of sexually transmitted diseases”; Cermak Def.'s Summ. J. Reply at 5 ("STD testing for infectious diseases has an important penological purpose.”). Defendants also maintain that the test itself was minimally invasive and therefore should be treated no differently from the mandatory blood tests that have repeatedly been found valid by other courts. Particular standards apply to plaintiff claims of constitutional deprivation in the context of legitimate incarceration. “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987). The balancing necessary to determine whether an action is reasonable is weighted in favor of prison administration in light of the important need to maintain order within a difficult environment. Wolff v. McDonnell, 418 U.S.
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539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) ("prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security."). This reflects the restriction of rights intrinsic to a prisoner’s incarceration. See Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“Loss of freedom of choice and privacy are inherent incidents of confinement.”); see also Madyun v. Franzen, 704 F.2d 954, 958 (7th Cir. 1983) (“[W]hile inmates are not stripped of their constitutional rights at the prison gate, it also is true that these rights properly are subject to a much greater degree of intrusion than would be allowed outside the prison gate.”), cert denied 464 U.S. 996, 78 L.Ed.2d 687 (1983).
Defendants can therefore minimize constitutional scrutiny – making consideration of consent unnecessary – if they can establish the reasonableness of their actions by way of a balancing test. In the context of prison medical examinations, where there is no criminal suspicion on which to base the validity of the search, the balancing centers on whether the government was acting based on a special need “beyond the ordinary law enforcement need.” Green v. Berge, 354 F.3d 675 (7th Cir. 2004) (finding collection of DNA for the construction of a database was a valid special need) (citing United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003)). This analysis requires consideration of several factors, including: (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted. Wolfish, 441 U.S. at 559; see also Green v. Berge, 354 F.3d 675, 678 (7th Cir. 2004) (applying a similar set of factors); compare Safley, 482 U.S. at 89-90 (considering (1) the existence of a valid rational connection between the regulation and a
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justifying government interest, (2) whether there are other avenues for the exercise of the rights in question, (3) impact that accommodating the constitutional rights would have on guards, other inmates, and prison resources generally; and (4) the absence of ready alternatives); Thompson, 412 F.Supp.2d 881(applying Safley to case involving same Defendants and many of the same facts as the instant case).
The balancing of interests dictated by the special needs test is necessarily a fact-intensive inquiry, requiring the court to examine the alleged deprivation in light of the totality of the circumstances. See Chandler v. Miller, 520 U.S. 305, 314, 117 S.Ct. 1295, 1301 (1997) (“[C]ourts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.”). Searches conducted within a prison context therefore might be appropriate in some instances and inappropriate in others, depending on the reason behind them and the manner in which it is performed. Compare, e.g., Bell v. Wolfish, 441 U.S. 520, 559 (1979) (finding Constitutional post-visitation cavity search of felonious prisoners reasonable for safety reasons) to Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983) (declining to uphold cavity search performed at intake on misdemeanor criminals).
As to the underlying value of the screening to the government and the public, Defendants maintain that the test was performed in furtherance of a “valid penological interest,” but speak in generalities when asked to explain that interest. See Def.’s Reply to Facts at ¶¶ 21-23; Cermak Defs.’ Facts ¶ 19(a) (“The reasons for administering the STD test are to protect the community at large, as well as to detect and treat STDs within the Cook County jail population”); Sheriff’s
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Facts ¶ 28(a) (same).3 Deponents have restated and prioritized these interests, but have done little to delve further into the specific motivations. See, e.g., Raba Dep. at 148-150 (stating intent was to protect the individual prisoner’s health, followed by fear of outbreaks within the prison population and in the general population as additional motivations). Plaintiffs point out that the test was not a response to a particular threat posed by an outbreak in either the outside public or the jail’s population. However, the underlying government interest need not be so specific or well-defined, provided the deprivation in question survives the balancing of interests involved. In addition, there is in fact evidence that STDs are transmitted within the jail, even if it does not rise to the level of an “outbreak.” See Rodriguez Dep. at 90, 99. Finally, merely discovering the frequency of infection in the prison population could be considered a special need.
Whatever the purported interest in continuing the STD screening, the actions of Defendants do not indicate that Defendants placed great value in seeing the process performed effectively. Defendants failed to distinguish in their record keeping between those who were tested and those who were not, which would appear to have a significant impact on the effectiveness of the procedure. In addition, Defendants appear unconcerned by the fact that workers at times failed to apply the test due to resource constraints, Sheriff Def.’s Resp. Facts ¶ 21, and currently, Cermak is not performing the test at all.4 See Raba Dep. at 75-81. It could
3It is also worth noting that this is the second proceeding in which the Defendants have been given the opportunity to explain their interest in seeing the test performed, and in both cases they have had difficulty showing a compelling need that might counterbalance the prisoners’ constitutional rights.
4While the threat of the instant lawsuit is perhaps a valid reason to terminate the practice, the apparent lack of effort in finding an alternative to the urethral swab suggests that the
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reasonably be inferred from these gaps in the use of the screening test, as well as its ultimate termination, that STD screening was not a high priority in the jail.
Defendants maintain that the magnitude of the constitutional deprivation is low, so that any balancing test used to analyze the procedure should be decided in their favor. See Sheriff’s Facts ¶ 26(c); Cermak Defs.’ Facts ¶ 18(a). However, this argument fails to withstand any degree of scrutiny. As another court of this district found, urethral swabbing involves "invasion of one of the most intimate and sensitive parts of the male body." Thomas, 412 F.Supp.2d at 892 (J. Kennelly). Though Defendants look for support in cases upholding the constitutionality of involuntary blood tests, the rationale for finding blood tests minimally invasive is that drawing blood is a common and therefore expected procedure to which all parties are accustomed. See Schmerber, 384 U.S. at 771 (“[A] blood test was a commonplace in these days of periodic physical examinations.”). It cannot be said that the forcible insertion of a cotton swab into one’s penis is similarly common. In light of this, as well as the physical and social discomfort involved with the procedure, there is little to support Defendants’ contention that the urethral swab test is only minimally invasive.
In addition, it appears Defendants made little if any effort to lessen the already invasive nature of the screening process. See Skinner, 489 U.S. at 626; Thompson, 412 F.Supp.2d at 892. The swabbing was done with a limited level of privacy, relying on a nominally-effective privacy screen to block the sight lines of other prisoners standing at an open doorway. See, e.g., Raba Dep. at 39; but see Murphy-Swallow Dep. at 86-87 (comparing the level of privacy to that which is found at another hospital); Morris Second Dep. at 16-17 (claiming that each treated prisoner
underlying need is not great. -13-

could not be observed by the others). It was performed in an area that was generally noisy and congested during intake hours. Raba Dep. at 95. There is also evidence that the STD screening can be accomplished via a less-intrusive urine analysis, even if there remain questions about such alternatives’ cost and effectiveness. See, e.g., id. at 53-54. Therefore, any claim that this test process is minimally invasive is undermined by Defendants’ failure to reduce the impact that it did have on the prisoners. As stated before, the standards of privacy and freedom from search within a prison are generally lower than that which is found in free society, but the lack of diligence or care with which the procedure seems to have been executed contradicts Defendants’ claim that the procedure was an appropriate means of meeting their need.
Finally, the cost, effort, and inconvenience of ensuring that the STD screening passed constitutional muster would not be high. The easiest method of remedying the problem – ensuring a more voluntary and knowing consent procedure – would not demand significant resources. And again, though its viability is still in question, urine analysis is another means of testing for STDs that would not raise the same constitutional concerns. See Raba Dep. at 53-55 (acknowledging that the urine analysis is similarly effective but claiming that it is more expensive).
For all of the foregoing reasons, there is insufficient evidence for determining as a matter of law that the STD test is a reasonable search warranted by a special governmental need. On this point, it is important to keep in mind the ultimate determination that must be made in allowing the government to assert a special need: “the proffered special need...must be substantial-important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized
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suspicion.” Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295 (1997). This bar has not been reached at this stage of the proceedings.
That said, the actions of Defendants were not so unreasonable as a matter of law as to warrant granting Plaintiffs’ motion for summary judgment on the issue of liability on this basis. Many of the most inflammatory of Plaintiffs’ allegations – that might otherwise urge this Court to find the screening test unreasonable as a matter of law – are also some of the most vigorously contested: the degree of privacy of those undergoing the procedure; the amount and duration of the pain involved; the extent to which genital manipulation by the CMTs is required; the viability of urine analysis or other alternatives; and the impact of the test on reducing the transmission of gonorrhea and chlamydia. This Court must also be mindful of the leeway given prison administrators who are ostensibly working to support the health of the population under their charge.5
Questions of material fact abound. While Plaintiffs portray the process as forceful, abrupt, impersonal, unyielding, and even malicious, Defendants have presented a very different version of the events in the RCDC.6 Final determination of whether the screening was unreasonable relies on a context-specific balancing that should not be settled as a matter of law when such significant questions remain. Defendants have largely failed to show that the procedure for testing prisoners for STDs is appropriately tailored to meet their need for public
5Though Plaintiffs have attempted to portray Defendants’ motivations as punitive or otherwise hurtful, they have yet to establish this malicious intent on the part of the Defendants and therefore have not undermined this presumption.
6According to the account of one volunteer physician, CMTs would focus only on the younger prisoners, would ask if they wanted to have the test done, and even had some prisoners request to have it done. Raba Dep. at 88-89.
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safety with a minimum of constitutional complications. At the same time, however, the standard is not high – merely establishing the frequency of STDs within a prison population could arguably be a special government need – and Defendants have put forth some evidence of societal benefit from the procedure. See Rodriguez Dep. at 90, 99. Finally, Plaintiffs go to great pains to establish that the STD screening was inconsistently applied, but there is no hard and fast rule that the testing must be universal in order to represent a special need. If it is found that the underlying interest of reducing STDs in the prison population was sufficiently compelling, even faulty execution of a policy to address that problem might be sufficient.
For these reasons, all parties’ motions for summary judgment are DENIED with respect to whether or not the STD screening is reasonable or unreasonable as a matter of law.
Consent Despite the fact that the swabbing procedure cannot be found constitutional or unconstitutional as a categorical matter, Defendants nonetheless prevail if they can establish that the Plaintiffs adequately consented to the procedure. See Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997). It is fairly clear that a consent form was signed by all members of the Plaintiff class, but the nature of that consent is still at issue. In order to prove that a search was unreasonable, then, Plaintiffs must show that the consent was invalid because it was given under duress or coercion. Id. at 1269. Mere “acquiescence to a claim of lawful authority” does not amount to consent sufficient to avoid liability. Bumper v. North Carolina, 391 U.S. 543, 549 (1968). Instead, consent must be “freely and voluntarily given” in light of“the totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 et seq. (1973).
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Defendant maintains that the consent provided was in all cases voluntarily made by prisoners with a full understanding of the situation they faced.7 In support, they generally point to the fact that there is little to no evidence of outright coercive language from the guards, or words of protest from Plaintiff class members. See generally Sheriff’s Summ. J. Resp. at 5-7. Plaintiffs respond that none of the class members knew they could decline the STD screening and that they all believed failing to go through any given stage in the intake process would be met with forceful or punitive measures. See, e.g., Morris Dep. at 12-15 (evidencing, through leading questions, an impression that the process was required and a lack of awareness regarding the nature of the STD test). Much of the deposition testimony on this issue appears forced and/or unclear, and Defendants have previously complained that the affidavits are written in stock language that does not appear to reflect individual impressions. However, determining such issues of credibility should take place where the facts can be brought out in an adversarial proceeding before a proper factfinder. In any event, nearly all of the Plaintiff deponents expressed some awareness of institutional pressure to acquiesce to the screening process and, in particular, the urethral swabbing. See Second Morris Dep. at 19 (describing the COs’ language to move the crowd along, “keep walking, don’t look back”). Some even claimed to have witnessed direct use of force where prisoners stepped out of line, see, e.g., Roberson Dep. at 19:4-21, or suffered it themselves at some point in the intake process, see Ellis Dep. at 31-34.
7It appears that in some cases, prisoners actually wanted the STD screening to be performed. At least one prisoner had previously received a similar test outside the prison and actually wanted to have it done to see if he had contracted anything. See Second Morris Dep. at 18: 19-20.
-17-

There are several important indications that the consent was not willingly given. Though Defendants maintain that all prisoners had the option of declining the test, there is sufficient indication that they believed the guards would force them, creating an issue of fact on this point. Defendants concede that the guards, though not directly involved in the medical screening, nonetheless served in an enforcement capacity and were near enough to intervene where necessary. This could be perceived as a coercive threat that places the willingness of consent in question. The validity of the consent is also called into question by the fact that the prisoners were forced to make this decision toward the end of an extensive intake process, and in many instances claim they had no idea what was happening until the STD screening was actually taking place. It is uncontested that there were posters in the screening room that described the process, but this does not establish that they were correctly placed, read by members of the class, or adequate for explaining the process.
The evidence does not portray particularly coercive actions on the part of the guards. At the same time, the overall environment in which the prisoners found themselves could reasonably have given the impression that there was no choice available. Even where signed, it is possible that the consent clause represented an invalid consent to the search. In Thompson v. County of Cook, it was noted that the consent did not even mention the type of test that would be performed. 412 F.Supp.2d at 891. In light of the relative obscurity of the urethral swab test, vaguely referencing a test for sexually transmitted diseases would not amount to consent to such an invasive and unexpected procedure. In addition, in at least some instances the consent was not even given before the procedure was carried out. See Defendant Sheriff’s Resp. Facts ¶ 27.
-18-

In light of these facts, summary judgment based on the presence of consent would be inappropriate.
There remain significant questions of fact regarding the consent forms, including the knowledge, willingness, and scope with which Plaintiffs’ signed them. Because the adequacy of this process is necessarily a fact-intensive inquiry, a decision as a matter of law is inappropriate where material facts remain in dispute. Summary judgment in favor of Defendants on this basis is therefore DENIED.
Liability of Sheriff of Cook County Plaintiff has claimed that the STD screening “was conducted in accordance with an explicit policy of the Sheriff of Cook County or an explicit policy of Cermak Health Services or, in the alternative, was a practice that was so permanent and well-settled at the Cook County Jail that it constitutes a custom or usage.” Corr. Am. Compl. ¶10. Defendant Sheriff has now moved for summary judgment in part on the grounds that he cannot be found liable under § 1983 in the absence of direct involvement in the STD screening process. Sheriff’s Summ. J. Mot. at 4-6. It is of course true that the officers did not directly conduct the procedures in question, and that mere supervisory authority is insufficient for finding fault under § 1983. Nonetheless, the degree of supervision, and the Sheriff’s adoption of a policy for facilitating the screening, could nonetheless amount to a knowing and substantial deprivation of constitutional rights. Liability under § 1983 arises only when a defendant is personally responsible for the deprivation of which the plaintiff complains. See Jones v. Drew, 2007 WL 737359, at *3 (7th Cir. 2007). To be personally liable for a subordinate's acts, a supervising official “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Id. (citing
-19-

Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006)). Those in a supervisory position can also be found liable if a custom or policy of depriving constitutional rights exists. See Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir.2005) (“[M]unicipal liability exists only ‘when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.’ ”) (quoting Monell v. N.Y. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). An unconstitutional policy or custom can take one of three forms: “(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority.” Rashe v. Beecher, 336 F.3d 588, 597 (7th Cir. 2003).
In Illinois, the Sheriff of Cook County and Cook County itself are distinct entities, and neither is considered an authority over the other. The Sheriff is a county official charged with “final policymaking authority over the jail.” DeGenova v. Sheriff of DuPage County, 209 F.3d 973 (7th Cir. 2000) (citations omitted). Because he or she is an elected county official, the Sheriff is empowered to execute these duties in manner “independent of and unalterable by any governing body.” See Moy v. County of Cook, 640 N.E.2d 926, 929 (1994) (finding no masteragent relationship between the two with respect to jail functions, based primarily on the County’s inability to terminate or control). Likewise, the County is under no obligation to bend to the Sheriff’s authority.
Defendant Sheriff encouraged this Court to dismiss the suit in light of the decisions and outcome of an almost identical factual situation before Judge Kennelly. See Lawrence E.
-20-

Thompson v. County of Cook and Michael Sheahan, 03-CV-7172. On February 7, 2006, that court granted Defendant Sheriff’s Rule 50 motion to dismiss the Cook County Sheriff after the close of the Plaintiff’s case. This Court is not aware of the basis for this decision, though Defendant Sheriff has submitted its memorandum corresponding to the issue in that case. It is certainly true that the instant matter is largely indistinguishable from Thompson’s urethral swabbing claims before Judge Kennelly. However, that ruling was based on the record before that court, made only after the case had proceeded to trial. It cannot be said that, as a matter of law, the evidence in this case will not show that the Sheriff’s policies with respect to STD screening amounted to a constitutional violation. Collateral estoppel cannot be applied to expand the findings of an individual’s case to an entire class absent evidence that the class’s interests were adequately represented. Washington Group Int’l, Inc. v. Bell, Boyd & Lloyd LLC, 383 F.3d 633, 636 (7th Cir. 2004). In terms of the facts presented, this Court cannot simply adopt another record as its own. Judge Kennelly’s ruling therefore has no effect on the instant case.
Based on the record of this case, there is no proof that the Sheriff was directly involved in any of the steps in the swabbing process itself – i.e., note-taking, obtaining consent, or inserting the cotton swab – and liability for the alleged deprivation does not attach on this basis. It is also clear that the Sheriff’s general administrative responsibilities do not create liability for the actions of his employees. The safety and welfare of Cermak employees and the prisoners they were testing demanded that the Sheriff’s staff be closely involved in the process, as the general security of the facility of the jail and its occupants fall under the general supervisory responsibilities of the sheriff. But again, the Seventh Circuit has made clear that this general
-21-

authority of a warden is not sufficient for establishing liability. Kelly v. Mun. Courts of Marion County, Ind., 97 F.3d 902, 909 (7th Cir.1996) (explaining that prison administrators are not “personally involved” in every § 1983 violation within that prison). Plaintiffs’ reliance on this general supervisory responsibility and DeGenova v. Sheriff of DuPage County, 209 F.3d 973 (7th Cir. 2000) is therefore misplaced.
Nonetheless, the Sheriff’s complicity in the screening process involves a more substantial connection between his or her policies and the alleged deprivation, which may amount to Section 1983 abuse. See Calhoun, 408 F.3d at 379. There was a policy in place of facilitating Cermak in carrying out its medical screening duties. If the STD screening that was a part of that process is deemed reasonable as a categorical matter, it is partly due to the jail’s interest in the health and welfare of those incarcerated there, and is something that could not happen without the Sheriff’s assistance. If the question becomes one of consent, the alleged coercion that would negate that consent is caused in some part by the presence and/or actions of those acting under the Sheriff’s policies. The record therefore leaves open the possibility that those working for the Sheriff were responsible for the alleged constitutional deprivation because they “kn[ew] about the conduct, facilitat [ed] it, approve[d] it, [and] condone[d] it,” Hildebrandt v. Illinois Dept. of Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003), in acting on the Sheriff’s policies.
The question of constitutionality in this case is not solely whether or not the STD screening was done or how it was done as a medical procedure. See Defs.’ Summ. J. Resp. at 11-13. Plaintiffs’ case also calls into question the surrounding environment in which it was done. Even if the Sheriff could not control the medical process itself, the jail hierarchy with respect to timing, logistics, safety, and physical security may have implicated the Sheriff’s staff
-22-

in affecting the manner in which it was performed. See Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004) (requiring that the policy or practice must be the “direct cause” or “moving force” behind the constitutional violation). Therefore, Sheriff’s policies might be deemed a “direct cause” or “moving force” behind the allegedly unconstitutional way in which the procedure was done, even if they were not a “direct cause” or “moving force” behind the existence of the procedure itself.
MOTIONS TO DISMISS Defendants had moved to dismiss this action based only on the allegations of the complaint, and those motions are largely dismissed as moot insofar as they have now been considered through summary judgment. However, several claims should be addressed as a matter of course. Defendants have alleged the following: the claim against Director of Cermak should be dismissed based on the redundancy of including both the Director and Cook County as Defendants; the entire suit should be dismissed due to Plaintiffs failure to allege “deliberate indifference” or a concrete injury; the Cermak Director claims qualified immunity because the case involves overcrowding issues covered under the Duran consent decree; and the entire case should be dismissed due to the collateral estoppel effects of Duran v. Sheahan, 74 C 2924 (“Duran”). For the reasons stated below, these motions are DENIED in part and GRANTED in part.
Standard On a motion to dismiss, the Court accepts all well-pleaded allegations in the plaintiff’s complaint as true. Fed. R. Civ. P. 12(b)(6). The purpose of a 12(b)(6) motion is to decide the adequacy of the complaint, not to determine the merits of the case. Gibson v. City of Chicago,
-23-

910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). A complaint should not be dismissed “unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Any ambiguities are construed in favor of the plaintiff. Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995). However, the court need “not strain to find inferences favorable to the plaintiffs which are not apparent on the face of th[e] . . . complaint.” Coates v. Illinois State Bd. of Ed., 559 F.2d 445, 447 (7th Cir. 1977).
A complaint that complies with the Federal Rules of Civil Procedure cannot be dismissed because it fails to allege facts. The Rules require simply that the complaint state a claim, rather than plead facts that would establish the validity of that claim. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). “All that need be specified are the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer.” Id. (citing Beanstalk Group, Inc. v. AM Gen. Corp., 283 F.3d 856, 863 (7th Cir. 2002)). The Seventh Circuit has ruled that stating a claim in federal court requires only “a short statement, in plain (that is, non-legalistic) English, of the legal claim.” Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). Plaintiffs “don’t have to file long complaints, don’t have to plead facts, don’t have to plead legal theories.” Id. “At this stage of the litigation, we are concerned not with what plaintiff did or did not show, but rather with what plaintiff did or did not allege.” Bworn v. Budz, 398 F.3d 904, 914 (7th Cir. 2005).
Complaints need not plead law or match facts to every element of a legal theory. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); see also Scott v. City of Chicago, 195 F.3d 950, 952 (7th Cir.1999); Hefferman v. Bass, 2006 WL 2973677, at *3 (7th Cir. 2006) (stating that it is
-24-

not necessary to “allege facts supporting each of the elements of the claim”). Rather, Plaintiff must simply plead “sufficient facts...to allow the court and the defendants to understand the gravamen of the plaintiff's complaint,” Doherty v. City of Chicago, 75 F.3d 318 (7th Cir. 1996). In order to determine whether this requirement has been met, the court may consider facts alleged in the related state action. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
Analysis Cermak Defendants argued that Plaintiffs allege no actual injury amounting to a constitutional deprivation, and that the lack of consent or other failures amount to mere negligence that cannot be brought under Section 1983. Cermak Defs.’ Dismiss Mem. at 9. However, in attempting to prove this point Cermak Defendants conflate “serious deprivation” of a constitutional right – which is required – with the presence or absence of a physical injury – which is not. See, e.g., Rowe v. Shake, 196 F.3d 778, 781 (7th Cir.1999) (“a prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained.”). This argument is therefore unavailing. Defendant Director of Cermak has questioned whether he or she is properly included as a Defendant in this case. Departments within a governing body generally lack the required separate legal existence to be held individually accountable. Jordan v. City of Chicago, Dept. of Police, 505 F.Supp. 1, 4 (N.D.Ill.1980). The question of Cermak’s independence from the County of Cook, and therefore the propriety of holding both of these Defendants liable in the instant case, has been disputed before. See Williams v. Fairman, 1995 WL 571729 (N.D.Ill. 1995). Other courts have found that Cermak is a subservient division of Cook County, and that
-25-

Cermak’s officers cannot be held liable concurrently with the County itself. See Glass v. Fairman, 992 F.Supp. 1040, 1043 (N.D. Ill. 1998); Williams v. Fairman, 1996 WL 164289, at *2 (N.D. Ill. 1996) (finding that the relevant ordinance “clearly defines Cermak as being a department within the County of Cook” and concluding that “Cermak lacks the capacity to be sued, and should be dismissed from this case”).
Plaintiffs have argued that Defendant’s argument on this point “is without merit because plaintiffs allege that the Director (and not Cook County) shares responsibility with the Sheriff for the challenged practice.” Pl.’s Opp. to Mot. to Dismiss at 6. However, this is irrelevant in light of the fact that the Director stands as a defendant only in his or her official capacity and official capacity liability is indistinguishable from that of the ultimately responsible governmental body. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations omitted). Plaintiff has failed to advance any other arguments regarding this issue. They have conceded that Cermak is “a division of the Cook County Bureau of Health Services,” Pls.’ Summ. J. Mem. at 2, which in turn is a division of Cook County for purposes of attributing liability. Insofar as the case has been brought against the Director of Cermak in his or her official capacity and the County is ultimately responsible for the policies of his position, Defendant Director of Cermak’s motion to dismiss is GRANTED.
The remaining arguments in Defendants’ motions to dismiss are unavailing. The Duran decree has no collateral estoppel effects on this court as, according to its terms, it is only binding on future equitable actions, Martin v. Davies, 917 F.2d 336 (7th Cir. 1990), regarding a particular range of overcrowding issues, Walker v. County of Cook, 2006 WL 2161829, at *3 (N.D. Ill. 2006). The instant case seeks only damages and was not an issue considered in or
-26-

encompassed by Duran’s consideration. Defendants requests for qualified immunity are out of place, as Defendants are appearing only in their official capacities. Ruffino v. Sheahan, 218 F.3d 697, 700 (2000)(“... it is well established that the qualified immunity doctrine does not apply to official capacity cases”). Therefore, all remaining motions to dismiss are DENIED.
CONCLUSION For the foregoing reasons, Plaintiffs’ and Defendants’ motions for summary judgment are DENIED, and Defendants’ motions to dismiss are GRANTED in part and DENIED in part.

Enter:

Dated: March 23, 2007

/s/ David H. Coar David H. Coar United States District Judge

-27-

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT JACKSON, et ai., Plaintiffs, v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS,
Defendants.

)

)

)

)

)

No. 06 C 00493

)

)

Judge David H. Coar

)

)

)

AGREED ORDER

This case coming before the Court as a set matter, counsel for the parties having advised

the Court of a proposed settlement that will be presented to the Cook County Board of

Commissioners, and the Court, after a review of the terms and provisions of the proposed

settlement, having concluded that the proposed settlement is reasonable,

IT IS HEREBY ORDERED:

I) The proposed settlement is preliminarily approved and, if accepted by the Cook

County Board of Commissioner, should be the subject of a fairness hearing pursuant to Rule

23(e)(C) of the Federal Rules of Civil Procedure, with notice to be provided to each class

member by first class mail, postage prepaid, to his last known address.

2) The terms of the proposed settlement shall remain confidential until presented to

the Cook County Board of Commissioners.

3) Defendant County of Cook shall issue a check for one hundred thousand dollars

($100,000.00) payable to Kenneth N. Flaxman, an attorney for the plaintiff class, to cover the

initial costs of notice. Mr. Flaxman shall maintain these funds in his sequestered client fund

IOLTA account within the State of Illinois, and shall provide an appropriate accounting to

defendants for these funds, which he may use solely and exclusively for providing notice of the

proposed settlement of this action. ENTER:

-UIM~JJ~

Agreed to:
lsi Kenneth N. Flaxman Kenneth N. Flaxman an attorney for the plaintiff class

David H. Coar United States District Judge
~ IS, ';"007
sl Francis J. Catania ARDC#6203188 Francis J. Catania, Attorney for County Defendants
lsi Daniel Gallagher Daniel Gallagher, Attorney for Sheriff

 
 Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 1 of 9

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

ROBERT JACKSON, JOSEPH McGRATH, )

and DERRELL SMITH,

)

PlaintiffS, )

-vs-

) No. 06 CV 493

)

SHERIFF OF COOK COUNTY AND

) (Judge Coar)

COOK COUNTY, ILLINOIS

)

Defendants. )

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action through their respective undersigned counsel to resolve all matters at issue in this action.

RECITALS
1. Nature of litigation. Plaintiffs filed the above captioned action, for
themselves and all others similarly situated, in the United States District Court for
the Northern District of Illinois alleging violations of their Fourth and Fourteenth
Amendment rights under the U.S. Constitution pursuant to 42 U.S.C. § 1983,
resulting from STD testing of males processed into the Cook County Jail.
2. Class Certification. Pursuant to the Court's order of December 14,
2006, this case is proceeding as a class action for:
All male prisoners at the Cook County Jail who, on and after January 27, 2004, were subjected to the non-consensual insertion of a swab into his penis as part of his admission to the jail.

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 2 of 9
3. Important Rulings. On March 23, 2007, the Court denied cross-motions for summary judgment and set the case for trial on June 18,2007. The parties filed their joint pre-trial order on April 27, 2007. On May 18, 2007, the Court held a pre-trial conference and ruled on motions in limine.
4. Settlement Conference. Following the Court's ruling on the motions in limine, counsel for the parties met to discuss the possibility of settlement and agreed to a resolution of the claims asserted on behalf of the class and the individual claims asserted for the named plaintiffs. The proposed settlement takes into account the risks, delay and difficulties involved in establishing a right to recovery in excess of that offered by this settlement and the likelihood that the litigation will be further protracted and expensive.
Class Counsel has investigated the facts and the applicable law and agrees with defense counsel that a reasonable estimate of the size of the class is thirty two thousand persons. Based on the foregoing, and upon an analysis of the benefits that this Settlement Agreement affords the class, Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
After reaching the proposed settlement of the class and individual claims, counsel discussed issues of attorneys' fees and costs and reached an agreement as to these matters.
The proposed settlement has been presented to the Cook County Board, which approved the agreement on July 10, 2007.
2

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 3 of 9
5. No Admission of Liability. Defendants deny liability to Plaintiffs and the class for the claims alleged, but consider it desirable that the action and the claims alleged therein be settled upon the terms and conditions set forth in this Agreement, in order to avoid further expense and burdensome, protracted litigation, and to put to rest all claims, known or unknown, that have been or might be asserted by Plaintiffs or the class members against Defendant.
In consideration of the foregoing, Plaintiffs, Class Counsel and Defendants stipulate and agree that the claims of the named Plaintiffs and the class against Defendants should be and are hereby compromised and settled, subject to the approval of the court, upon the following terms and conditions.
TERMS 6. Relief to the Class. To resolve all claims at issue in this case, including but not limited to claims for compensatory damages and claims for attorneys' fees and expenses, the parties have agreed that, as part of the consideration for this Agreement, Defendants will establish a fund in the amount of $4,575,000.00 (Four Million Five Hundred and Seventy Five Thousand Dollars) ("Settlement Fund") in full settlement of all claims at issue in this case. 7. Incentive Payments. Each of the named plaintiffs will receive, subject to the approval of the court, an incentive award of $25,000.00 to be paid from the Settlement Fund. Defendants agree not to oppose Plaintiffs' petition for such incentive awards. Such awards shall be in lieu of, and not in addition to, any
3

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 4 of 9
other awards to which the named plaintiffs may be entitled under this settlement. 8. Administration, Attorneys' Fees and Expenses. The cost of
administration of the settlement will be paid from the Settlement Fund, as will attorneys' fees and expenses. These costs include, but are not limited to, notice to the class, attempting to locate class members who are not reached by first class mail to their last known ascertainable address, processing of claim forms, and mailing of settlement shares to class members. The checks will be issued by and mailed by defendant Cook County using information ascertained by Class Counsel. The actual costs associated with such activities will be deducted from the $300,OQO.00.00 allocated for costs. The total amount of attorneys' fees will, subject to the approval of the Court, not exceed $1,000,000.00 (One Million Dollars), and the total costs of the litigation (including the cost of administering the settlement) will not exceed $300,000.00 (Three Hundred Thousand Dollars). The court will set the actual amount of costs and appropriate attorneys fees will be determined by petition to the court. Defendants have agreed not to challenge any request for fees and costs that may be made by class counsel up to the agreed amounts. Defendants have also agreed that the costs of mailing notice of this proposed settlement shall be advanced by defendant Cook County and deducted from the $300,000.00 allocated for costs.
9. Payments to Class Members. The parties, while recognizing that each class member has a distinct claim for damages, agree that the expense, uncertainty, and delay of providing each class member with an individual
4

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 5 of 9
determination of damages outweighs the benefits of distribution on an pro rata basis. The parties also agree that, based on judgments and settlements in comparable cases, payment of at least one hundred dollars would provide reasonable compensation for the injury being compromised in this settlement.
The actual amount to be paid to each class member will be determined after all claims forms have been received. The total amount paid will not exceed $3,200,000.00 (Three Million Two Hundred Thousand Dollars), and will computed by dividing the sum of $3,200,000.00 by the number of class members who timely returned claim forms. The parties do not believe that more than 32,000 claim forms will be returned and that each class member will therefore receive at least one hundred dollars. In the event that less than 16,000 claim forms are returned, each claimant will receive two hundred dollars and any funds remaining will revert back to Cook County, Illinois. The parties agree that, while it is unlikely that more than 32,000 claimants will respond to class notice, the Court will specifically reserve jurisdiction to decide, if more than 32,000 claims are filed, whether all claims in excess of 32,000 will be honored, or whether some claims should be disallowed based on probability calculations.
10. Notice and Claims Procedures. a. On or before August 31, 2007, notice of the proposed settlement, information about the date and time of the fairness hearing, and notice of a right to opt-out (for those members that have not previously received such opportunity) will be sent by first class mail to the last ascertainable address of each class
5

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 6 of 9
member. As used herein, "ascertainable" means the last known address as enhanced by the United States Postal Service change of address database. The cost of this notice will be paid in the first instance by defendant Cook County and, assummg that this settlement obtains [mal approval from the Court, will be deducted from the sum reserved for payment of costs and administration expenses ..
b. The notice of the proposed settlement will be accompanied by a claim form. Class members will be required to return the executed form to the class action administrator on or before October 15,2007.
e. Within 45 days following the final approval of this settlement, defendant Cook County will prepare checks for each class member who has submitted a timely claim. Defendant Cook County will also send these checks to each claimant by first class mail. The actual expense of check printing and mailing shall be deducted from the amount set aside in this settlement for costs and administration expenses.
f. Defendant Cook County will notify class counsel of any checks that are not delivered by the United States Postal Service. To the extent that funds are available from the amount set aside in this settlement for costs and administration expenses and for a 90 day period following the actual mailing of checks, class counsel shall make reasonable efforts to locate each such class member to whom the check was not delivered. Any costs incurred in this effort shall be reimbursed
6

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 7 of 9
from the funds remairling from the amount set aside in this settlement for costs and administration expenses.
g. At the expiration of the 90 day period referred to in the preceding paragraph, all funds that have not been distributed to class members or which have not been utilized for costs and administration expenses shall remain with defendant Cook County.
13. Enforcement and Reservation of Jurisdiction. The parties agree that the Court will reserve jurisdiction to enforce the provisions of this agreement and that the Court may, for good cause, adjust and reset the dates set out in paragraph 10 above for a reasonable period following final approval of this settlement. If the Court approves the settlement, it will enter an order of dismissal that will dismiss the litigation with prejudice as to all Class Members, except those persons who have timely filed "opt out" forms. All people and entities who meet the Class Definition and who have not timely filed "opt out" forms ("Releasing Persons") shall be forever barred from prosecuting their own lawsuit asserting any of the claims at issue in this litigation and they and their heirs, executors, administrators, representatives, agents, partners, successors and assigns shall be deemed to have fully released and forever discharged the Released Persons (defmed below) from all Released Claims (defmed below).
"Released Persons" means County of Cook and the Sheriff of Cook County each of their past or present directors, officers, employees, agents, Board members, attorneys, advisors, consultants, representatives, partners,
7

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 8 of 9

affiliates, parents, subsidiaries, related companies, and divisions, and each of their predecessors, successors, heirs and assigns.
"Released Claims" means any and all liabilities, claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts, agreements, damages, restitution, disgorgement, costs, attorneys' fees, losses, expenses, obligations or demands, of any kind whatsoever that the "Releasing Persons" may have or may have had, whether in arbitration, administrative, or judicial proceedings, whether known or unknown, suspected or unsuspected, threatened, asserted or unasserted, actual or contingent, liquidated or unliquidated, that were alleged in this lawsuit. This release does not extend to any claim that may be, has been, or will be, asserted on behalf of the "Releasing Person" as an unnamed class member in any other action.
Agreed to, this 16th day of July, 2007 by the party representatives below who have
affixed their signatures showing their assent to the above Class Settlement
Agreement.

Plainti ' Counsel include the following attorneys who serve as Plaintiffs' Co-

lead ou I:

~N. Flaxman 200 S. Michigan Avenue Suite 1240 Chicago, IL 60604-2430

(Jb/~

Thomas G. Morrissey

'\

10249 S. Western Avenue

Chicago, IL 60643

(312) 427-3200

(773) 233-7900

The couu,~,"pm,"UWd iu dw 'UigotiM by,

,,~

)

Francis J. a a

Cook County State's Attorney's Office

Richard J. Daley Center

50 W. Washington Room 500

Chicago, IL 60602

(312) 603-6572

The Sheriffof Cook County is represented in the litigation by: 8

Case 1:06-cv-00493 Document 228 Filed 07/17/2007 Page 9 of 9
Dafniel G)allag~ her ~_/ -=a-J
Querrey & Harrow, Ltd. 175 W. Jackson Street 16th Floor Chicago, IL 60604 (312) 540-7674
9

 
 Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 1 of 9 PageID #:6260

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

ROBERT JACKSON, JOSEPH McGRATH, )

and DERRELL SMITH,

)

Plaintiffi, )

-vs-

) No. 06 CV 493

)

SHERIFF OF COOK COUNTY AND

) (Judge Coar)

COOK COUNTY, ILLINOIS

)

Defendants. )

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action tbrough their respective undersigned counsel to resolve all matters at issue in this action.

RECITALS
1. Nature of litigation. Plaintiffs filed the above captioned action, for
themselves and all others similarly situated, in the United States District Court for
the Northern District of Illinois alleging violations of their Fourth and Fourteenth
Amendment rights under the U.S. Constitution pursuant to 42 U.S.C. § 1983,
resulting from STD testing of males processed into the Cook County Jail.
2. Class Certification. Pursuant to the Court's order of December 14,
2006, this case is proceeding as a class action for:
All male prisoners at the Cook County Jail who, on and after January 27, 2004, were subjected to the non-consensual insertion of a swab into his penis as part of his admission to the jail.

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 2 of 9 PageID #:6261
3. Important Rulings. On March 23, 2007, the Court denied cross-motions for summary judgment and set the case for trial on June 18, 2007. The parties filed their joint pre-trial order on April 27, 2007. On May 18, 2007, the Court held a pre-trial conference and ruled on motions in limine.
4. Settlement Conference. Following the Court's ruling on the motions in limine, counsel for the parties met to discuss the possibility of settlement and agreed to a resolution of the claims asserted on behalf of the class and the individual claims asserted for the named plaintiffs. The proposed settlement takes into account the risks, delay and difficulties involved in establishing a right to recovery in excess of that offered by this settlement and the likelihood that the litigation will be further protracted and expensive.
Class Counsel has investigated the facts and the applicable law and agrees with defense counsel that a reasonable estimate of the size of the class is thirty two thousand persons. Based on the foregoing, and upon an analysis of the benefits that this Settlement Agreement affords the class, Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
After reaching the proposed settlement of the class and individual claims, counsel discussed issues of attorneys' fees and costs and reached an agreement as to these matters.
The proposed settlement has been presented to the Cook County Board, which approved the agreement on July 10, 2007.
2

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 3 of 9 PageID #:6262
5. No Admission of Liability. Defendants deny liability to Plaintiffs and tbe class for tbe claims alleged, but consider it desirable tbat tbe action and tbe claims alleged therein be settled upon tbe terms and conditions set fortb in tbis Agreement, in order to avoid further expense and burdensome, protracted litigation, and to put to rest all claims, known or unknown, tbat have been or might be asserted by Plaintiffs or tbe class members against Defendant.
In consideration of the foregoing, Plaintiffs, Class Counsel and Defendants stipulate and agree that tbe claims of tbe named Plaintiffs and tbe class against Defendants should be and are hereby compromised and settled, subject to tbe approval oftbe court, upon tbe following terms and conditions.
TERMS 6. Relief to the Class. To resolve all claims at issue in tbis case, including but not limited to claims for compensatory damages and claims for attorneys' fees and expenses, tbe parties have agreed that, as part of tbe consideration for tbis Agreement, Defendants will establish a fund in tbe amount of $4,575,000.00 (Four Million Five Hundred and Seventy Five Thousand Dollars) ("Settlement Fund") in full settlement of all claims at issue in tbis case. 7. Incentive Payments. Each of tbe named plaintiffs will receive, subject to tbe approval of tbe court, an incentive award of $25,000.00 to be paid from tbe Settlement Fund. Defendants agree not to oppose Plaintiffs' petition for such incentive awards. Such awards shall be in lieu of, and not in addition to, any
3

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 4 of 9 PageID #:6263
other awards to which the named plaintiffs may be entitled under this settlement. 8. Administration, Attorneys' Fees and Expenses. The cost of
administration of the settlement will be paid from the Settlement Fund, as will attorneys' fees and expenses. These costs include, but are not limited to, notice to the class, attempting to locate class members who are not reached by first class mail to their last known ascertainable address, processing of claim forms, and mailing of settlement shares to class members. The checks will be issued by and mailed by defendant Cook County using information ascertained by Class Counsel. The actual costs associated with such activities will be deducted from the $300,00"0.00.00 allocated for costs. The total amount of attorneys' fees will, subject to the approval of the Court, not exceed $1,000,000.00 (One Million Dollars), and the total costs of the litigation (including the cost of administering the settlement) will not exceed $300,000.00 (Three Hundred Thousand Dollars). The court will set the actual amount of costs and appropriate attorneys fees will be determined by petition to the court. Defendants have agreed not to challenge any request for fees and costs that may be made by class counsel up to the agreed amounts. Defendants have also agreed that the costs of mailing notice of this proposed settlement shall be advanced by defendant Cook County and deducted from the $300,000.00 allocated for costs.
9. Payments to Class Members. The parties, while recognizing that each class member has a distinct claim for damages, agree that the expense, uncertainty, and delay of providing each class member with an individual
4

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 5 of 9 PageID #:6264
determination of damages outweighs the benefits of distribution on an pro rata basis. The parties also agree that, based on judgments and settlements in comparable cases, payment of at least one hundred dollars would provide reasonable compensation for the injury being compromised in this settlement.
The actual amount to be paid to each class member will be determined after all claims forms have been received. The total amount paid will not exceed $3,200,000.00 (Three Million Two Hundred Thousand Dollars), and will computed by dividing the sum of $3,200,000.00 by the number of class members who timely returned claim forms. The parties do not believe that more than 32,000 claim forms will be returned and that each class member will therefore receive at least one hundred dollars. In the event that less than 16,000 claim forms are returned, each claimant will receive two hundred dollars and any funds remaining will revert back to Cook County, Illinois. The parties agree that, while it is unlikely that more than 32,000 claimants will respond to class notice, the Court will specifically reserve jurisdiction to decide, if more than 32,000 claims are filed, whether all claims in excess of 32,000 will be honored, or whether some claims should be disallowed based on probability calculations.
10. Notice and Claims Procedures. a. On or before August 31, 2007, notice of the proposed settlement, information about the date and time of the fairness hearing, and notice of a right to opt-out (for those members that have not previously received such opportunity) will be sent by first class mail to the last ascertainable address of each class
5

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 6 of 9 PageID #:6265
member. As used herein, "ascertainable" means the last known address as enhanced by the United States Postal Service change of address database. The cost of this notice will be paid in the first instance by defendant Cook County and, assuming that this settlement obtains final approval from the Court, will be deducted from the sum reserved for payment of costs and administration expenses ..
b. The notice of the proposed settlement will be accompanied by a claim form. Class members will be required to return the executed form to the class action administrator on or before October 15, 2007.
e. Within 45 days following the final approval of this settlement, defendant Cook County will prepare checks for each class member who has submitted a timely claim. Defendant Cook County will also send these checks to each claimant by first class mail. The actual expense of check printing and mailing shall be deducted from the amount set aside in this settlement for costs and administration expenses.
f. Defendant Cook County will notify class counsel of any checks that are not delivered by the United States Postal Service. To the extent that funds are available from the amount set aside in this settlement for costs and administration expenses and for a 90 day period following the actual mailing of checks, class counsel shall make reasonable efforts to locate each such class member to whom the check was not delivered. Any costs incurred in this effort shall be reimbursed
6

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 7 of 9 PageID #:6266
from the funds remaining from the amount set aside in this settlement for costs and administration expenses.
g. At the expiration of the 90 day period referred to in the preceding paragraph, all funds that have not been distributed to class members or which have not been utilized for costs and administration expenses shall remain with defendant Cook County.
13. Enforcement and Reservation of Jurisdiction. The parties agree that the Court will reserve jurisdiction to enforce the provisions of this agreement and that the Court may, for good cause, adjust and reset the dates set out in paragraph l 0 above for a reasonable period following final approval of this settlement. If the Court approves the settlement, it will enter an order of dismissal that will dismiss the litigation with prejudice as to all Class Members, except those persons who have timely filed "opt out" forms. All people and entities who meet the Class Defmition and who have not timely filed "opt out" forms ("Releasing Persons") shall be forever barred from prosecuting their own lawsuit asserting any of the claims at issue in this litigation and they and their heirs, executors, administrators, representatives, agents, partners, successors and assigns shall be deemed to have fully released and forever discharged the Released Persons (defmed below) from all Released Claims (defmed below).
"Released Persons" means County of Cook and the Sheriff of Cook County each of their past or present directors, officers, employees, agents, Board members, attorneys, advisors, consultants, representatives, partners,
7

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 8 of 9 PageID #:6267

affiliates, parents, subsidiaries, related companies, and divisions, and each of their predecessors, successors, heirs and assigns.
"Released Claims" means any and all liabilities, claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts, agreements, damages, restitution, disgorgement, costs, attorneys' fees, losses, expenses, obligations or demands, of any kind whatsoever that the "Releasing Persons" may have or may have had, whether in arbitration, administrative, or judicial proceedings, whether known or unknown, suspected or unsuspected, threatened, asserted or unasserted, actual or contingent, liquidated or unliquidated, that were alleged in this lawsuit. This release does not extend to any claim that may be, has been, or will be, asserted on behalf of the "Releasing Person" as an unnamed class member in any other action.
Agreed to, this 16th day of July, 2007 by the party representatives below who have
affixed their signatures showing their assent to the above Class Settlement
Agreement.

Plainti ' Counsel include the following attorneys who serve as Plaintiffs' Co-

lead ou l:

~N. Flaxman 200 S. Michigan Avenue Suite 1240 Chicago, IL 60604-2430 (312) 427-3200

(}b/~

Thomas G. Morrissey

'

10249 S. Western Avenue

Chicago, IL 60643

(773) 233-7900

The Coo"'~''P'aerned in dw /Uigation bye

"~
Francis J. a a

)

Cook County State's Attorney's Office

Richard J. Daley Center

50 W. Washington Room 500

Chicago, IL 60602

(312) 603-6572

The SheriffofCook County is represented in the litigation by:
8

Case: 1:06-cv-00493 Document #: 228 Filed: 07/17/07 Page 9 of 9 PageID #:6268
w~~~
Daniel Gallagher Querrey & Harrow, Ltd. 175 W. Jackson Street 161h Floor Chicago, IL 60604 (312) 540-7674
9

 
 Case: 1:06-cv-00493 Document #: 251 Filed: 11/02/07 Page 1 of 1 PageID #:6335

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT JACKSON, eta!., Plaintiffs,
V.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS,
Defendants.

) ) ) ) ) No. 06 C 00493 ) ) Judge David H. Coar ) )
)

ORDER

This case came before the Court for a hearing pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure on the fairness of the proposed settlement of this class action; no one appeared at the hearing to object to the proposed settlement.
Based on its review of the "memorandum in support of approval of proposed settlement" filed herein by class counsel, as well as on its independent knowledge of this litigation, the Court finds that notice has been provided to class members in a reasonable manner and that the proposed settlement is fair, reasonable, and adequate and should be, and hereby is, approved under Rule 23(e)(l)(C).

IT IS HEREBY ORDERED: I) Payments to the unnamed members of the class shall be made by defendant Cook
County in accordance with the terms of the settlement agreement; 2) Each of the three named plaintiffs (Robert Jackson, Derrell Smith, and Joseph
McGrath), shall receive an incentive award in the amount of $25,000; 3) Class counsel Kenneth N. Flaxman and Thomas G. Morrissey are entitled to
reimbursement for costs in the amount of $45,012.32 and an award of attorneys' fees in the total amount of $1,000,000. 3) The Court reserves jurisdiction to enter such further orders as may be required to implement the settlement of this cas._e_·:..--~

ENTER:

David H. Coar United States District Judge

NOV 2- ZOO?

 
 COLE,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:06−cv−00493

Jackson v. Sheriff of Cook County et al Assigned to: Honorable David H. Coar Demand: $100,000 Cause: 42:1983 Civil Rights Act Plaintiff Robert L Jackson
Plaintiff Joseph McGrath
Plaintiff Derrell Smith

Date Filed: 01/27/2006 Date Terminated: 11/02/2007 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Kenneth N Flaxman Kenneth N. Flaxman, P.C. 200 South Michigan Avenue Suite 201 Chicago, IL 60604−6107 (312) 427−3200 Email: knf@kenlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey Thomas G. Morrissey 10249 South Western Avenue Chicago, IL 60643 (773) 233−7900 Email: tgmlaw@ameritech.net ATTORNEY TO BE NOTICED
represented by Kenneth N Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth N Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Gerard Morrissey (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Sheriff of Cook County

represented by Daniel Francis Gallagher Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604−2827 (312) 540−7000 Email: dgallagher@querrey.com LEAD ATTORNEY

Defendant Cook County, Illinois

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 ATTORNEY TO BE NOTICED
Dominick L Lanzito Peterson Johnson &Murray − Chicago LLC 233 South Wacker Drive 84th Floor Chicago, IL 60606 312 782 7150 Email: dlanzito@pjmlaw.com ATTORNEY TO BE NOTICED
Lawrence S. Kowalczyk Querrey &Harrow, Ltd. 175 West Jackson Boulevard Suite 1600 Chicago, IL 60604−2827 (312) 540−7000 Email: lkowalczyk@querrey.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
represented by Francis J. Catania Cook County State's Attorney Richard J Daley Center 50 W Washington St Room 302 Chicago, IL 60602 (312) 603−5440 Email: fcatania@cookcountygov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven L. Satter Cook County State's Attorney's Office 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−5105 Fax: (312) 603−3000 Email: ssatter@cookcountygov.com ATTORNEY TO BE NOTICED
William Joseph McFadden Daley Mohan Groble, P.C. 55 West Monroe Street Suite 1600 Chicago, IL 60603

Defendant Director, Cermak Health Services
Movant George Jenkins
Movant Charles Dimick also known as Jonathan Craig
Movant Isaac Briggs TERMINATED: 09/04/2008 Movant David Johnson

(312) 422−6522 Fax: (312) 422−5370 Email: wmcfadden@daleymohan.com ATTORNEY TO BE NOTICED
represented by Francis J. Catania (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George Jenkins N−12904 17705 Exchange Avenue #1−E Lansing, IL 60438 PRO SE
represented by Charles Dimick N−60182 Lawrence − LAW R.R. 2, Box 31 Sumner, IL 62466 PRO SE
represented by David Johnson R−47706 Logan − LGN R.R. 3, P.O. Box 1000 Lincoln, IL 62656 PRO SE

Date Filed 01/27/2006 01/27/2006 01/27/2006 01/27/2006 01/31/2006 02/01/2006 02/03/2006
02/03/2006

# Docket Text
1 COMPLAINT filed by Robert Jackson; Jury Demand.(mb, ) (Entered: 01/30/2006)
2 CIVIL Cover Sheet (mb, ) (Entered: 01/30/2006)
3 ATTORNEY Appearance for Plaintiff Robert Jackson by Kenneth N Flaxman (mb, ) (Entered: 01/30/2006)
5 SUMMONS Issued as to Defendant Sheriff of Cook County (mb, ) (Entered: 01/30/2006)
6 AMENDED complaint by Joseph McGrath, Derrell Smith, Robert Jackson against all defendants (Flaxman, Kenneth) (Entered: 01/31/2006)
7 Corrected AMENDED complaint by Joseph McGrath, Derrell Smith, Robert Jackson against all defendants (Flaxman, Kenneth) (Entered: 02/01/2006)
8 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for leave to appear as Additional Appearance for Plaintiffs (Morrissey, Thomas) (Entered: 02/03/2006)
9 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for leave to appear 8 before Honorable David H. Coar on 2/8/2006 at 09:00 AM.

02/03/2006 02/07/2006
03/08/2006
03/31/2006 03/31/2006 04/11/2006 04/11/2006 04/12/2006 04/12/2006 04/19/2006 04/19/2006 04/19/2006 04/19/2006 04/19/2006 04/19/2006 04/24/2006 04/24/2006 04/24/2006 04/25/2006

(Morrissey, Thomas) (Entered: 02/03/2006)
11 SUMMONS Issued as to defendants Director, Cermak Health Services, Cook County, Illinois (cdy, ) (Entered: 02/08/2006)
10 MINUTE entry before Judge David H. Coar : Plaintiff's motion for leave to appear as additional counsel 8 is granted. Leave is granted Thomas G. Morrissey to file additional appearance on behalf of the plaintiffs. The parties need not appear on the noticed motion date of 02/08/06. Attorney Thomas G. Morrissey for Joseph McGrath and Derrell Smith added. Mailed notice (cdy, ) (Entered: 02/07/2006)
12 MINUTE entry before Judge David H. Coar : Rule 16(b) Scheduling Conference set for 4/25/2006 at 09:00 a.m. Report of parties planning conference pursuant to Rule 26(f) and proposed scheduling order pursuant to Rule 16(b) to be filed and submitted to chambers. (Forms of report of planning conference and proposed scheduling order are available on the Court's web page or in chambers). Mailed notice (cdy, ) (Entered: 03/16/2006)
13 ATTORNEY Appearance for Defendant Sheriff of Cook County by Daniel Francis Gallagher (Gallagher, Daniel) (Entered: 03/31/2006)
14 NOTICE by Sheriff of Cook County re attorney appearance 13 (Gallagher, Daniel) (Entered: 03/31/2006)
15 MOTION by Defendant Sheriff of Cook County for extension of time (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 04/11/2006)
16 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for extension of time 15 before Honorable David H. Coar on 4/25/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 04/11/2006)
17 ATTORNEY Appearance for Defendant Cook County, Illinois by Francis J. Catania (Catania, Francis) (Entered: 04/12/2006)
18 NOTICE by Cook County, Illinois of Filing Attorney Appearance for County of Cook (Catania, Francis) (Entered: 04/12/2006)
19 ATTORNEY Appearance for Defendant Sheriff of Cook County by Daniel A. Kirk (Kirk, Daniel) (Entered: 04/19/2006)
20 NOTICE by Sheriff of Cook County re attorney appearance 19 (Kirk, Daniel) (Entered: 04/19/2006)
21 ATTORNEY Appearance for Defendant Sheriff of Cook County by Terrence Franklin Guolee (Guolee, Terrence) (Entered: 04/19/2006)
22 NOTICE by Sheriff of Cook County re attorney appearance 21 (Guolee, Terrence) (Entered: 04/19/2006)
23 ATTORNEY Appearance for Defendant Sheriff of Cook County by Lawrence S. Kowalczyk (Kowalczyk, Lawrence) (Entered: 04/19/2006)
24 NOTICE by Sheriff of Cook County re attorney appearance 23 (Kowalczyk, Lawrence) (Entered: 04/19/2006)
25 Proposed Scheduling Order by all parties by Sheriff of Cook County (Kowalczyk, Lawrence) (Entered: 04/24/2006)
26 NOTICE by Sheriff of Cook County re other 25 Proposed Scheduling Order by all parties (Kowalczyk, Lawrence) (Entered: 04/24/2006)
27 ATTORNEY Appearance for Defendant Cook County, Illinois by William Joseph McFadden (McFadden, William) (Entered: 04/24/2006)
28 MINUTE entry before Judge David H. Coar :Rule 16(b) Scheduling Conference held on 4/25/2006. Motion hearing held on 4/25/2006 regarding motion for extension of time 15 . Motion for extension of time 15 is granted, all defendants to answer or plead on or before May 24, 2006. All disclosures required by Rule 26(a)(1) shall be made on or before 5/15/2006. Any amendments to pleadings or actions to join other parties shall be filed on or before 7/1/2006. Discovery is

04/26/2006 05/24/2006 05/24/2006 05/24/2006 05/24/2006 05/24/2006 05/24/2006 05/24/2006 05/31/2006
05/31/2006 06/21/2006 06/23/2006 06/23/2006 06/28/2006

ordered closed on 11/1/2006. The parties shall disclose expert testimony pursuant to Rule 26(a)(2) on or before 11/15/2006 by the plaintiffs and 1/5/2007 by defendants. The parties may depose the other side' s expert at any time prior to 1/23/2007. The parties shall disclose any rebuttal expert pursuant to Rule 26(a)(2)(c) at any time prior to 2/12/2007. The parties may depose the opposing party's rebuttal expert by 3/1/2007. Dispositive motions with supporting memoranda due by 12/1/2006 (all motions are to be in accordance to and noticed for a date certain pursuant to Local Rule 5.3(b)). Final Pretrial Order due by 3/16/2007. Final Pretrial Conference set for 3/23/2007 at 11:00 AM. Jury Trial set for 4/2/2007 at 10:00 AM. The parties are directed to review this Court's standing orders. Copies are available in chambers or through the Court's web page. (pm, ) Modified on 4/25/2006 (pm, ). (Entered: 04/25/2006)
29 ATTORNEY Appearance for Defendant Director, Cermak Health Services by Francis J. Catania (Catania, Francis) (Entered: 04/26/2006)
30 MOTION by Defendant Sheriff of Cook County to dismiss (Gallagher, Daniel) (Entered: 05/24/2006)
31 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to dismiss 30 before Honorable David H. Coar on 5/31/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 05/24/2006)
32 MEMORANDUM by Sheriff of Cook County in Support of motion to dismiss 30 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Gallagher, Daniel) (Entered: 05/24/2006)
33 NOTICE by Sheriff of Cook County re memorandum in support of motion 32 (Gallagher, Daniel) (Entered: 05/24/2006)
34 NOTICE of Motion by Francis J. Catania for presentment of before Honorable David H. Coar on 5/31/2006 at 09:00 AM. (Catania, Francis) (Entered: 05/24/2006)
35 MOTION by Defendants Director, Cermak Health Services, Cook County, Illinois to dismiss the Corrected Amended Complaint (Catania, Francis) (Entered: 05/24/2006)
36 MEMORANDUM by Director, Cermak Health Services, Cook County, Illinois in Support of motion to dismiss 35 the Corrected Amended Complaint (Catania, Francis) (Entered: 05/24/2006)
37 MINUTE entry before Judge David H. Coar : Motion hearing held on 5/31/2006 regarding 30 and 35 . Enter briefing schedule on Defendant Director Cermak Healthcare and Cook County Illinois' motion to dismiss [35 and The Defendant Sheriff's motion to dismiss 30 . Responses due by 06/21/06. Replies due 07/07/06. Motions taken under advisement. Ruling to issue by mail. Enter Agreed Protective Order settling a dispute regarding discovery − privileged documents. (ar, ) (Entered: 06/12/2006)
38 AGREED Protective Order, signed by Judge David H. Coar on 5/31/2006 37 .(ar, ) (Entered: 06/12/2006)
39 MEMORANDUM by Joseph McGrath, Derrell Smith, Robert Jackson in Opposition to motion to dismiss 30 , motion to dismiss 35 (Flaxman, Kenneth) (Entered: 06/21/2006)
40 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel discovery (Attachments: # 1 Exhibit # 2 Exhibit B# 3 Exhibit C)(Morrissey, Thomas) (Entered: 06/23/2006)
41 Plaintiffs' Motion to Compel NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 40 before Honorable David H. Coar on 6/28/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 06/23/2006)
47 MINUTE entry before Judge David H. Coar :Motion hearing held on 6/28/2006 regarding motion to compel 40 . P Plaintiffs' Motion to compel 40 is granted as resolved by the parties, a signature order to be submitted. Documents to be

06/28/2006 06/28/2006 07/07/2006 07/07/2006 07/07/2006 07/07/2006 07/07/2006 09/08/2006 09/08/2006 09/11/2006 09/11/2006 09/13/2006
10/10/2006 10/10/2006 10/12/2006 10/12/2006 10/13/2006 10/13/2006 10/13/2006

produced twenty−one days. (pm, ) (Entered: 07/12/2006)
48 MINUTE entry before Judge David H. Coar : Enter signature order. Mailed notice (mjc, ) (Entered: 07/17/2006)
49 ORDER Signed by Judge David H. Coar on 6/28/2006.(mjc, ) (Entered: 07/17/2006)
42 REPLY by Sheriff of Cook Countyin Support of MOTION by Defendant Sheriff of Cook County to dismiss 30 Plaintiffs' Corrected Amended Complaint (Gallagher, Daniel) (Entered: 07/07/2006)
43 NOTICE by Sheriff of Cook County re reply to response to motion 42 to dismiss Plaintiffs' Corrected Amended Complaint (Gallagher, Daniel) (Entered: 07/07/2006)
44 REPLY IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS THE CORRECTED AMENDED COMPLAINT (Catania, Francis) (Entered: 07/07/2006)
45 NOTICE by Director, Cermak Health Services, Cook County, Illinois OF FILING THEIR REPLY IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS THE CORRECTED AMENDED COMPLAINT (Catania, Francis) (Entered: 07/07/2006)
46 CERTIFICATE by Director, Cermak Health Services, Cook County, Illinois Certificate of Service (Catania, Francis) (Entered: 07/07/2006)
50 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to certify class (Flaxman, Kenneth) (Entered: 09/08/2006)
51 INCORRECT document linked(Flaxman, Kenneth) Modified on 9/11/2006 (emd, ). (Entered: 09/08/2006)
52 NOTICE of Correction regarding notice of motion 51 (emd, ) (Entered: 09/11/2006)
53 CORRECTED NOTICE of Motion by Kenneth N Flaxman for presentment of motion to certify class 50 before Honorable David H. Coar on 9/13/2006 at 09:00 AM. (Flaxman, Kenneth) (Entered: 09/11/2006)
54 MINUTE entry before Judge David H. Coar : Motion hearing held on 9/13/2006 regarding motion to certify class 50 . Set deadlines as to motion to certify class 50 : Responses due by 11/3/2006; Replies due by 11/17/2006. Motion to certify class 50 is taken under advisement, ruling to issue by mail mailed notice (pm, ) (Entered: 09/15/2006)
55 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel Deposition of Charles Luna (Morrissey, Thomas) (Entered: 10/10/2006)
56 deposition of Charles Luna NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 55 before Honorable David H. Coar on 10/16/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 10/10/2006)
57 ATTORNEY Appearance for Defendant Sheriff of Cook County by Dominick L Lanzito (Lanzito, Dominick) (Entered: 10/12/2006)
58 NOTICE by Sheriff of Cook County re attorney appearance 57 (Lanzito, Dominick) (Entered: 10/12/2006)
59 MOTION by Defendant Sheriff of Cook County for protective order (Gallagher, Daniel) (Entered: 10/13/2006)
60 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for protective order 59 before Honorable David H. Coar on 10/16/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 10/13/2006)
61 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson, Defendants Sheriff of Cook County, Cook County, Illinois for extension of time for discovery (Morrissey, Thomas) (Entered: 10/13/2006)

10/13/2006 10/16/2006 10/18/2006 10/27/2006 10/27/2006 11/01/2006 11/01/2006 11/01/2006 11/03/2006 11/03/2006 11/03/2006 11/03/2006 11/06/2006
11/06/2006 11/06/2006
11/06/2006

62 To Extend Discovery NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time 61 before Honorable David H. Coar on 10/18/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 10/13/2006)
63 MINUTE entry before Judge David H. Coar :Motion hearing held on 10/16/2006 regarding motion to compel 55 , motion for protective order 59 Plaintiff's Motion to compel the deposiston of Charles Luna 55 is granted. Motion for protective order 59 is denied. mailed notice (pm, ) (Entered: 10/16/2006)
64 MINUTE entry before Judge David H. Coar : Motion for extension of time 61 is stricken, no one appeared to present the motion. Motion hearing held on 10/18/2006 regarding motion for extension of time 61 mailed notice (pm, ) (Entered: 10/18/2006)
65 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel discovery (Attachments: # 1 Exhibit A)(Morrissey, Thomas) (Entered: 10/27/2006)
66 Discovery NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 65 before Honorable David H. Coar on 11/1/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 10/27/2006)
67 MINUTE entry before Judge David H. Coar : Motion to compel 65 is granted as agreed by the parties and as stated on the record. Motion hearing held on 11/1/2006 regarding motion to compel 65 . mailed notice (pm, ) (Entered: 11/01/2006)
68 MOTION by Defendants Director, Cermak Health Services, Cook County, Illinois for extension of time to file response/reply to Plaintiffs' Motion for Class Certification (Catania, Francis) (Entered: 11/01/2006)
69 Agreed NOTICE of Motion by Francis J. Catania for presentment of motion for extension of time to file response/reply 68 before Honorable David H. Coar on 11/6/2006 at 09:00 AM. (Catania, Francis) (Entered: 11/01/2006)
70 RESPONSE by Sheriff of Cook County in Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to certify class 50 (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)(Gallagher, Daniel) (Entered: 11/03/2006)
71 NOTICE by Sheriff of Cook County re response in opposition to motion, 70 for class certification (Gallagher, Daniel) (Entered: 11/03/2006)
72 MOTION by Defendant Sheriff of Cook County to have Defendant Sheriff Sheahan's Request to Admit Deemed Admitted (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Gallagher, Daniel) (Entered: 11/03/2006)
73 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for miscellaneous relief 72 before Honorable David H. Coar on 11/6/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 11/03/2006)
74 MINUTE entry before Judge David H. Coar : Motion for extension of time to file response/reply regarding MOTION to certify class 50 68 is granted. Defendants' Responses due and shall be filed by 11/6/2006 as to motion to certify class 50 . MOTION by Defendant Sheriff of Cook County to have Defendant Sheriff Sheahan's Request to Admit Deemed Admitted 72 is continued to 11/13/2006 at 9:00 a.m. mailed notice (pm, ) (Entered: 11/06/2006)
Set/Reset Deadlines as to MOTION by Defendant Sheriff of Cook County to have Defendant Sheriff Sheahan's Request to Admit Deemed Admitted 72 . Motion Hearing set for 11/13/2006 at 09:00 AM. (pm, ) (Entered: 11/06/2006)
75 RESPONSE by Director, Cermak Health Services, Cook County, Illinois in Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to certify class 50 (Attachments: # 1 Exhibit A Jackson# 2 Exhibit B McGrath# 3 Exhibit C Smith# 4 Exhibit D Hradek# 5 Exhibit E Judkins# 6 Exhibit F Hill# 7 Exhibit G Spivey)(Catania, Francis) (Entered: 11/06/2006)
76 NOTICE by Director, Cermak Health Services, Cook County, Illinois re response in opposition to motion, 75 of Plaintiffs to Certify Class (Catania, Francis) (Entered: 11/06/2006)

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77 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for extension of time to serve expert's report (Morrissey, Thomas) (Entered: 11/10/2006)
78 Duplicate filing of document number 79. (Morrissey, Thomas) Modified on 11/13/2006 (emd, ). (Entered: 11/10/2006)
79 to serve expert's report NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time 77 before Honorable David H. Coar on 11/16/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 11/10/2006)
91 MINUTE entry before Judge David H. Coar : Motion hearing held on 11/13/2006 regarding motion for miscellaneous relief 72 . For the reasons stated on the record, The Motion to have request to admitt deemed admitted 72 is resolved as stated on the record. Motion #72 is terminated. mailed notice (pm, ) (Entered: 11/27/2006)
80 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel Discovery (Attachments: # 1 Exhibit A# 2 Exhibit B)(Morrissey, Thomas) (Entered: 11/15/2006)
81 Compel Discovery NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 80 before Honorable David H. Coar on 11/21/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 11/15/2006)
82 Motion to Compel NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 80 before Honorable David H. Coar on 11/20/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 11/15/2006)
94 MINUTE entry before Judge David H. Coar :Motion hearing held on 11/16/2006 regarding motion for extension of time 77 . MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for extension of time to serve expert's report 77 is granted. The expert discovery schedule is stricken, parties to follow the Federal Rules in reference to the expert discovery. mailed notice (pm, ) (Entered: 11/30/2006)
83 RESPONSE by Sheriff of Cook County in Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel Discovery 80 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Gallagher, Daniel) (Entered: 11/17/2006)
84 NOTICE by Sheriff of Cook County re response in opposition to motion 83 to compel the Designation of Witnesses Pursuant to a Rule 30(b)6 Notice (Gallagher, Daniel) (Entered: 11/17/2006)
85 REPLY by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to motion to certify class 50 (Flaxman, Kenneth) (Entered: 11/17/2006)
86 MINUTE entry before Judge David H. Coar : Motion to compel 80 is granted, as stated on the record. Motion hearing held on 11/20/2006 regarding motion to compel 80 mailed notice (pm, ) (Entered: 11/20/2006)
87 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for extension of time file motions for summary judgment (Morrissey, Thomas) (Entered: 11/21/2006)
88 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jacksonexceed limitation of ten depositions (Morrissey, Thomas) (Entered: 11/21/2006)
89 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel Discovery (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Morrissey, Thomas) (Entered: 11/21/2006)
90 NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion for extension of time 87 , motion to compel 89 , motion for miscellaneous relief 88 before Honorable David H. Coar on 11/28/2006 at 09:00 AM. (Morrissey, Thomas) (Entered: 11/21/2006)
92 MINUTE entry before Judge David H. Coar : Motion hearing held on 11/28/2006 regarding motion for extension of time 87 , motion to compel 89 , motion for

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miscellaneous relief 88 . MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for extension of time 87 to file motion for summary judgment is granted, motion to be filed by 12/15/2006. MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson exceed limitation of ten depositions 88 and MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel Discovery 89 are referred to the Magistrate Judge. All future discovery disputes and discovery motions are referred to the Magistrate Judge. mailed notice (pm, ) (Entered: 11/28/2006)
93 EXECUTIVE COMMITTEE ORDER:Case referred to Magistrate Judge Jeffrey Cole for discovery motion(s)specified. Plaintiffs' motion to exceed limitation of ten depositions 88 and Plaintiffs' motion to compel discovery 89 . All future discovery disputes and discovery motions. Signed by Executive Committee on 11/28/2006. (td, ) (Entered: 11/30/2006)
95 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel (Exhibits). (td, ) (Entered: 12/01/2006)
96 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to exceed limitation of ten depositions (Exhibits). (td, ) (Entered: 12/01/2006)
97 NOTICE of Emergency Motion by Thomas Gerard Morrissey for presentment of motion to compel 95 and motion to exceed the deposition limitation 96 before Honorable Jeffrey Cole on 11/30/2006 at 08:30 AM. (td, ) (Entered: 12/01/2006)
118 MINUTE entry before Judge Jeffrey Cole: Motion hearing held on 11/30/2006. Plaintiffs' Emergency Motion to compel 95 is granted as stated in open court. Plaintiffs' Motion to exceed limitation of ten depositions 96 is granted in part and denied in part as stated in open court. Mailed notice by judge's staff. (srb,) (Entered: 01/04/2007)
98 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for partial summary judgment on liability (Flaxman, Kenneth) (Entered: 12/14/2006)
100 MINUTE entry before Judge David H. Coar : For the reasons stated in the attached Memorandum Opinion and Order, Plaintiffs' motion to certify class 50 is granted. Mailed notice (td, ) (Entered: 12/15/2006)
101 MEMORANDUM Opinion and Order Signed by Judge David H. Coar on 12/14/2006.(td, ) (Entered: 12/15/2006)
99 of Undisputed Facts, Local Rule 56.1(a)(3) STATEMENT by Joseph McGrath, Derrell Smith, Robert Jackson (Flaxman, Kenneth) (Entered: 12/15/2006)
102 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for partial summary judgment 98 before Honorable David H. Coar on 12/20/2006 at 09:00 AM. (Flaxman, Kenneth) (Entered: 12/15/2006)
103 MOTION by Defendant Sheriff of Cook County for summary judgment (Gallagher, Daniel) (Entered: 12/15/2006)
104 MOTION by Defendants Director, Cermak Health Services, Cook County, Illinois for summary judgment (Catania, Francis) (Entered: 12/15/2006)
105 MEMORANDUM by Sheriff of Cook County in Support of motion for summary judgment 103 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Gallagher, Daniel) (Entered: 12/15/2006)
106 RULE 56 b Statement by Director, Cermak Health Services, Cook County, Illinois regarding motion for summary judgment 104 Local Rule 56.1 a 3 (Attachments: # 1 Exhibit List of Exhibits# 2 Exhibit A − Corrected Amended Complaint# 3 Exhibit B − Deposition of Lt. Luna# 4 Exhibit C − Deposition of Hradek# 5 Exhibit D − Deposition of Spivey# 6 Exhibit E − Deposition of Judkins# 7 Exhibit F − Deposition of Dr. Raba# 8 Exhibit G − Deposition of Dr. Rodriguez# 9 Exhibit H − Deposition of Hill# 10 Exhibit I − Journal Article − Dr. Trick# 11 Exhibit J − Deposition of Jackson# 12 Exhibit K − Deposition of Smith# 13 Exhibit L − Deposition of McGrath# 14 Exhibit M − Deposition of Murphy RN)(Catania, Francis) (Entered: 12/15/2006)

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107 MEMORANDUM by Director, Cermak Health Services, Cook County, Illinois in Support of motion for summary judgment 104 (Catania, Francis) (Entered: 12/15/2006)
108 RULE 56 Statement by Sheriff of Cook County regarding motion for summary judgment 103 (Attachments: # 1 Exhibit List of Exhibits 1 through 11# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11)(Gallagher, Daniel) (Entered: 12/15/2006)
109 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for summary judgment 103 before Honorable David H. Coar on 12/20/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 12/15/2006)
110 NOTICE of Motion by Francis J. Catania for presentment of motion for summary judgment 104 before Honorable David H. Coar on 12/20/2006 at 09:00 AM. (Catania, Francis) (Entered: 12/15/2006)
111 Corected NOTICE of Motion by Francis J. Catania for presentment of motion for summary judgment 104 before Honorable David H. Coar on 12/20/2006 at 09:00 AM. (Catania, Francis) (Entered: 12/15/2006)
112 MOTION by Defendant Sheriff of Cook County to stay class discovery pending a ruling on summary judgment (Gallagher, Daniel) (Entered: 12/15/2006)
113 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion to stay 112 before Honorable David H. Coar on 12/20/2006 at 09:00 AM. (Gallagher, Daniel) (Entered: 12/15/2006)
114 MEMORANDUM by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson in support of motion for partial summary judgment (Flaxman, Kenneth) Modified on 12/18/2006 (emd, ). (Entered: 12/15/2006)
120 MINUTE entry before Judge David H. Coar :Motion hearing held on 12/20/2006 regarding motion for partial summary judgment 98 , motion for summary judgment 103 , motion to stay 112 , motion for summary judgment 104 . Set deadlines as to Plaintiffs' motion for partial summary judgment 98 , Sheriff of Cook County's motion for summary judgment 103 , Defendnats Director, Cermak Health Services' motion for summary judgment 104 : Responses due by 1/19/2007; Replies due by 2/2/2007.The Motions [98, 103, &104] are taken under advisement − ruling to issue by mail. Defendant Sheriff's Motion to stay 112 is denied.Mailed notice (pm, ) (Entered: 01/10/2007)
115 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal; USCA Case No. 06−8040.(td, ) (Entered: 12/29/2006)
116 RULE 56 Statement by Sheriff of Cook County regarding motion for summary judgment 103 Corrected Local Rule 56.1 Statement (Attachments: # 1 Exhibit List of Exhibits 1 through 11# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11)(Gallagher, Daniel) (Entered: 01/04/2007)
117 NOTICE by Sheriff of Cook County re Rule 56 statement, 116 Corrected Local Rule 56.1 Statement (Gallagher, Daniel) (Entered: 01/04/2007)
119 TRANSCRIPT of proceedings for the following dates: 11/20/2006; Before the Honorable David H. Coar. (td, ) (Entered: 01/08/2007)
121 CERTIFIED COPY of order dated 1/9/2007 from the Seventh Circuit regarding notice of appeal; Appellate case no.: 06−8040. It is ordered that Defendant Sheriff Cook County's and County of Cook's petition for leave to appeal the grant of class certification pursuant to Rule 23(f) of the Federal Rules of Civil Procedure filed December 21, 2006, by counsel, is denied. (td, ) (Entered: 01/16/2007)
122 RULE 56 56 (E) and Local Rule 56.1(b)(1) Statement (Attachments: # 1 Exhibit Exhibit C Deposition of Howard Hradek# 2 Exhibit Exhibit D Deposition of Spivey# 3 Exhibit Exhibit E Deposition of Judkins# 4 Exhibit Exhibit F Deposition of Dr. Raba# 5 Exhibit Exhibit G Deposition of Dr Rodriguez# 6 Exhibit Exhibit H Deposition of Hill# 7 Exhibit Exhibit I Scholarly Article# 8 Exhibit Exhibit J

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Deposition of Jackson# 9 Exhibit Exhibit K Deposition Smith# 10 Exhibit Exhibit L Deposition McGrath# 11 Exhibit Exhibit M Deposition of Murphy# 12 Exhibit Exhibit N Deposition of Myvette# 13 Affidavit Exhibit O − Affidavits of 28 Detainees# 14 Exhibit Exhibit P Review by Centers for Disease Control# 15 Exhibit Exhibit Q Deposition of Jean Kiriazes# 16 Exhibit Exhibit R Declarations of Hayes−Bly and Patterson)(Catania, Francis) (Entered: 01/19/2007)
123 RULE 56 b and Local Rule 56.1(b)(3) Statement in Response to Plaintiffs SOF (Catania, Francis) (Entered: 01/19/2007)
124 MEMORANDMUM by Director, Cermak Health Services, Cook County, Illinois in Opposition to motion for partial summary judgment 98 (Catania, Francis) (Entered: 01/19/2007)
125 NOTICE by Director, Cermak Health Services, Cook County, Illinois of Argument In Response To Plaintiffs Motion For Summary Judgment, Responses To Plaintiffs Statement Of Fact, And Additional Facts And Materials Pursuant To Rule 56(E) (Catania, Francis) (Entered: 01/19/2007)
126 RESPONSE by Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for partial summary judgment on liability 98 (Gallagher, Daniel) (Entered: 01/19/2007)
127 RULE 56.1(b)(3)(B) Statement by Sheriff of Cook County regarding motion for partial summary judgment 98 (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10)(Gallagher, Daniel) (Entered: 01/19/2007)
128 RESPONSE by Defendant Sheriff of Cook County to statement 99 (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10)(Gallagher, Daniel) (Entered: 01/19/2007)
129 MOTION by Defendants Sheriff of Cook County, Cook County, Illinois to strike statement 99 (Gallagher, Daniel) (Entered: 01/19/2007)
130 NOTICE by Sheriff of Cook County re response in opposition to motion 126 , Response, 128 , Rule 56 statement, 127 , MOTION by Defendants Sheriff of Cook County, Cook County, Illinois to strike statement 99 129 (Gallagher, Daniel) (Entered: 01/19/2007)
131 MEMORANDMUM by Joseph McGrath, Derrell Smith, Robert Jackson in Opposition to motion for summary judgment 103 , motion for summary judgment 104 (Flaxman, Kenneth) (Entered: 01/19/2007)
132 RULE 56.1(b)(3) Statement by Joseph McGrath, Derrell Smith, Robert Jackson regarding motion for summary judgment 103 (Flaxman, Kenneth) (Entered: 01/19/2007)
133 RULE 56.1(b)(3) Statement by Joseph McGrath, Derrell Smith, Robert Jackson regarding motion for summary judgment 104 (Flaxman, Kenneth) (Entered: 01/19/2007)
134 RULE 56.1(b)(3)(C) Statement by Joseph McGrath, Derrell Smith, Robert Jackson regarding motion for summary judgment 103 , motion for summary judgment 104 (Flaxman, Kenneth) (Entered: 01/19/2007)
135 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for leave to depose prisoners and to prohibit further communications by defendants with class members about the dispute at issue in this case (Flaxman, Kenneth) (Entered: 01/21/2007)
136 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 135 before Honorable David H. Coar on 1/25/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 01/21/2007)
137 RESPONSE by Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for leave to depose prisoners and to prohibit further communications by defendants with class members about the

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dispute at issue in this case 135 and motion to decertify this litigation as a class action (Gallagher, Daniel) (Entered: 01/23/2007)
138 NOTICE by Sheriff of Cook County re response in opposition to motion, 137 and motion to decertify this litigation as a class action (Gallagher, Daniel) (Entered: 01/23/2007)
139 REPLY by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to response in opposition to motion, 137 (Flaxman, Kenneth) (Entered: 01/24/2007)
140 RESPONSE by Director, Cermak Health Services, Cook County, Illinois to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for leave to depose prisoners and to prohibit further communications by defendants with class members about the dispute at issue in this case 135 and Motion to Decertify the Class (Catania, Francis) (Entered: 01/24/2007)
141 NOTICE by Director, Cermak Health Services, Cook County, Illinois of DEFENDANTS DIRECTOR OF CERMAK HEALTH SERVICES AND COUNTY OF COOK RESPONSE TO PLAINTIFFS MOTION FOR LEAVE TO DEPOSE PRISONERS AND PROHIBIT FURTHER COMMUNICATIONS BY DEFENDANTS WITH CLASS MEMBERS AND MOTION TO DECERTIFY THE CLASS (Catania, Francis) (Entered: 01/24/2007)
142 MINUTE entry before Judge David H. Coar :Motion hearing held. Plaintiff's motion to depose prisoners and to prohibit communication with class members 135 is referred to the designated magistrate judge for disposition pursuant this court's referral order dated 11/28/2006.Advised in open court (jms, ) (Entered: 01/25/2007)
143 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 135 before Honorable Jeffrey Cole on 1/30/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 01/25/2007)
144 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel access to view and photograph during actual processing of prisoners (Flaxman, Kenneth) (Entered: 01/25/2007)
145 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to compel 144 before Honorable Jeffrey Cole on 1/30/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 01/25/2007)
150 MINUTE entry before Judge Jeffrey Cole : Motion hearing held on 1/30/2007. Plaintiff's Motion to compel access to view and photograph during actual processing of prisoners 144 is granted as stated in open court. Plaintiff's Unopposed Motion for leave to depose prisoners is granted as stated in open court. Plaintiff's motion to prohibit further communications by defendants with class members about the dispute at issue in this case 135 is denied as stated in open court. Defendants' motion to decertify this litigation as a class action 137 is entered and continued. Plaintiff has 28−days to respond to the motion to decertify and defendants have 14−days to reply. Ruling will be by mail. Draft order to follow. Mailed notice by judge's staff. (srb,) (Entered: 02/14/2007)
146 MINUTE entry before Judge David H. Coar :The date for filing the replies to the cross−motions for summary is extended to 2/3/2007.Mailed notice (slb, ) (Entered: 01/31/2007)
147 MINUTE entry before Judge David H. Coar :Docket entry # 146 is amended to reflect that the replies to the cross−motions for summary judgment shall be filed on or before 2/26/2007.Mailed notice (slb, ) (Entered: 01/31/2007)
148 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel depositions (Flaxman, Kenneth) (Entered: 02/11/2007)
149 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to compel 148 before Honorable Jeffrey Cole on 2/15/2007 at 08:30 AM. (Flaxman, Kenneth) (Entered: 02/11/2007)

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151 RESPONSE by Director, Cermak Health Services, Cook County, Illinoisin Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel depositions 148 (Catania, Francis) (Entered: 02/14/2007)
152 NOTICE by Director, Cermak Health Services, Cook County, Illinois of Filing Response to Plaintiffs' Motion to Compel Depositions (Catania, Francis) (Entered: 02/14/2007)
153 MOTION by Defendant Sheriff of Cook County for protective order (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Gallagher, Daniel) (Entered: 02/15/2007)
154 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for protective order 153 before Honorable Jeffrey Cole on 2/23/2007 at 09:30 AM. (Gallagher, Daniel) (Entered: 02/15/2007)
184 MINUTE entry before Judge Jeffrey Cole: Plaintiff's motion to compel depositions 148 is granted limited solely to the matters set forth in the motion and as stated in open court. The motion is denied as to Dr. Robert Simon. A further status hearing is set for 2/23/2007 at 9:30 a.m. Mailed notice by judge's staff. (srb,) (Entered: 03/24/2007)
155 EXHIBIT by Defendant Sheriff of Cook County EXHIBIT C − Deposition Transcript of Dr. Romina Kee regarding MOTION by Defendant Sheriff of Cook County for protective order 153 (Gallagher, Daniel) (Entered: 02/20/2007)
156 NOTICE by Sheriff of Cook County re exhibit 155 Exhibit C (Deposition Transcript of Dr. Romina Kee) to Sheriff of Cook County's Motion for Protective Order (Gallagher, Daniel) (Entered: 02/20/2007)
157 RESPONSE by Joseph McGrath, Derrell Smith, Robert Jacksonin Opposition to MOTION by Defendant Sheriff of Cook County for protective order 153 (Flaxman, Kenneth) (Entered: 02/22/2007)
169 MINUTE entry before Judge Jeffrey Cole : Status hearing held and continued to 3/28/2007 at 09:30 AM. Defendant Sheriff's motion for protective order 153 is entered and continued. Plaintiffs' motion to compel depositions 148 is entered and continued. Draft order regarding briefing on the motions to follow. Enter Order regarding motions 135 , 137 and 144 which were heard on 1/30/2007. Mailed notice (td, ) (Entered: 02/27/2007)
170 ORDER Signed by Judge Jeffrey Cole on 2/23/2007.(td, ) (Entered: 02/27/2007)
158 REPLY by Director, Cermak Health Services, Cook County, Illinois to Rule 56 statement 132 (Attachments: # 1 Exhibit Reply Exhibit A# 2 Exhibit Reply Exhibit B# 3 Exhibit Reply Exhibit C# 4 Exhibit Reply Exhibit D# 5 Exhibit Reply Exhibit E# 6 Exhibit Reply Exhibit F# 7 Exhibit Reply Exhibit G# 8 Exhibit Reply Exhibit H# 9 Exhibit Reply Exhibit I)(Catania, Francis) (Entered: 02/26/2007)
159 REPLY by Defendants Director, Cermak Health Services, Cook County, Illinois to Plaintiffs Resp to Director and County Motion for Summary Judgment (Catania, Francis) (Entered: 02/26/2007)
160 NOTICE by Director, Cermak Health Services, Cook County, Illinois of Filing Reply to Plaintiffs Response to Directors Motion for Sum Judgment (Catania, Francis) (Entered: 02/26/2007)
161 REPLY by Defendant Sheriff of Cook County to motion for summary judgment 103 , memorandum in support of motion 105 (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 02/26/2007)
162 RESPONSE by Defendant Sheriff of Cook County to Rule 56 statement 134 of Additional Facts (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit Exhibit 1 − Deposition Transcript of Dr. Raba# 3 Exhibit 2 − Deposition Transcript of Spivey# 4 Exhibit 3 − Deposition Transcript of Judkins# 5 Exhibit 4 − Deposition Transcript of Dr. Rodriguez# 6 Exhibit 5 − Deposition Transcript of Fields# 7 Exhibit 6 − Deposition Transcript of Nieves# 8 Exhibit 7 − Deposition Transcript of Carter# 9 Exhibit 8 − Deposition Transcript of Jones# 10 Exhibit 9 − Deposition Transcript of Howard Hradek# 11 Exhibit 10 − Deposition Transcript of Murphy−Swallow)(Gallagher, Daniel) (Entered: 02/26/2007)

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163 MOTION by Defendant Sheriff of Cook County to strike Rule 56 statement 134 Plaintiffs' Affidavit of Joseph McGrath and Portions of their Rule 56.1(b)(3)(C) Statement of Additional Facts (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gallagher, Daniel) (Entered: 02/26/2007)
164 NOTICE by Sheriff of Cook County re Response,, 162 , MOTION by Defendant Sheriff of Cook County to strike Rule 56 statement 134 Plaintiffs' Affidavit of Joseph McGrath and Portions of their Rule 56.1(b)(3)(C) Statement of Additional FactsMOTION by Defendant Sheriff of Cook County to strike Rule 56 statement 134 Plaintiffs' Affidavit of Joseph McGrath and Portions of their Rule 56.1(b)(3)(C) Statement of Additional Facts 163 , reply 161 in support of his motion for summary judgment (Gallagher, Daniel) (Entered: 02/26/2007)
165 RULE 56.1(a) Statement by Joseph McGrath, Derrell Smith, Robert Jackson regarding motion for partial summary judgment 98 reply to defendants' statements of additional facts (Flaxman, Kenneth) (Entered: 02/26/2007)
166 RULE 56.1(b)(3) Statement by Joseph McGrath, Derrell Smith, Robert Jackson regarding motion for partial summary judgment 98 responding to Cook County Defendants Rule 56.1 Statement (Flaxman, Kenneth) (Entered: 02/26/2007)
167 RULE 56.1(b)(3) Statement by Joseph McGrath, Derrell Smith, Robert Jackson regarding motion for partial summary judgment 98 responding to defendant Sheriff's Rule 56.1 Statement (Flaxman, Kenneth) (Entered: 02/26/2007)
168 REPLY by Joseph McGrath, Derrell Smith, Robert Jackson to response in opposition to motion 126 , memorandum in opposition to motion 124 , MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for partial summary judgment memorandum in support of 114 (Flaxman, Kenneth) (Entered: 02/26/2007)
171 MOTION by Defendants Director, Cermak Health Services, Sheriff of Cook County, Cook County, Illinois for extension of time Defendants' Motion to Extend Final Pretrial Order Deadline (Attachments: # 1 Exhibit 1)(Gallagher, Daniel) (Entered: 03/05/2007)
172 NOTICE of Motion by Daniel Francis Gallagher for presentment of extension of time 171 before Honorable David H. Coar on 3/12/2007 at 09:00 AM. (Gallagher, Daniel) (Entered: 03/05/2007)
173 MEMORANDUM by Director, Cermak Health Services, Sheriff of Cook County, Cook County, Illinois in support of motion for protective order 153 (Attachments: # 1 Exhibit 1# 2 Exhibit 2 − Part 1# 3 Exhibit 2 − Part 2# 4 Exhibit 2 − Part 3# 5 Exhibit 2 − Part 4# 6 Exhibit 2 − Part 5# 7 Exhibit 2 − Part 6# 8 Exhibit 2 − Part 7# 9 Exhibit 2 − Part 8)(Gallagher, Daniel) (Entered: 03/05/2007)
174 NOTICE by Director, Cermak Health Services, Sheriff of Cook County, Cook County, Illinois re memorandum in support of motion, 173 supplemental brief in support of motion for protective order (Gallagher, Daniel) (Entered: 03/05/2007)
175 MOTION by Defendant Sheriff of Cook Countyfor leave to file Supplemental Responses to Plaintiffs' Statement of Additional Facts (Attachments: # 1 Exhibit A)(Gallagher, Daniel) (Entered: 03/06/2007)
176 NOTICE of Motion by Daniel Francis Gallagher for presentment of motion for miscellaneous relief 175 before Honorable David H. Coar on 3/12/2007 at 09:00 AM. (Gallagher, Daniel) (Entered: 03/06/2007)
177 MOTION by Defendants Director, Cermak Health Services, Sheriff of Cook County, Cook County, Illinois to reset Trial (Catania, Francis) Incorrect pdf linked, modified on 3/12/2007. (Entered: 03/09/2007)
178 MOTION by Defendants Director, Cermak Health Services, Sheriff of Cook County, Cook County, Illinois to reset Trial (Catania, Francis) (Entered: 03/09/2007)
179 NOTICE of Motion by Francis J. Catania for presentment of motion to reset 178 before Honorable David H. Coar on 3/14/2007 at 09:00 AM. (Catania, Francis) (Entered: 03/09/2007)

03/12/2007 03/12/2007
03/23/2007 03/23/2007 03/23/2007
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04/23/2007 04/23/2007

180 NOTICE of Correction regarding MOTION by Defendants Director, Cermak Health Services, Sheriff of Cook County, Cook County, Illinois to reset Trial 177 . (td, ) (Entered: 03/12/2007)
181 MINUTE entry before Judge David H. Coar :Motion hearing held on 3/12/2007 regarding extension of time 171 , motion to reset 178 .The pretrial order deadline of 3/16, the pretrial conference of 3/23 and the trial date of 4/2/2007 are all stricken and terminated until ruling on the pending motion for summary judgment. Motion for extension of time 171 is moot. Motion to reset 178 is moot. Motion to file a sur−reply is denied. Parties need not appear on the noticed motion date of Wednesday 3/14/2007. Mailed notice (pm, ) (Entered: 03/12/2007)
182 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to reset schedule (AGREED) (Flaxman, Kenneth) (Entered: 03/23/2007)
183 AGREED NOTICE of Motion by Kenneth N Flaxman for presentment of motion to reset 182 before Honorable Jeffrey Cole on 3/29/2007 at 08:30 AM. (Flaxman, Kenneth) (Entered: 03/23/2007)
185 MINUTE entry before Judge David H. Coar : For the reasons stated in the attached memorandum and opinion, Defendant Sheriff's Motion to Dismiss 30 is DENIED and Defendants Director of Cermak and Cook County's Motion to Dismiss 35 is GRANTED in part and DENIED in part. Plaintiffs' Motion for partial summary judgment on liability 98 , Defendant Sheriff's Motion for Summary Judgment 103 , and Defendants Director of Cermak and Cook County's Motion for Summary Judgment 104 are DENIED. Motions to strike portions of the Rule 56.1 motions 129 and 163 are DENIED as moot. Parties are to submit a final pre−trial order (an original and two copies to be delivered to chambers) by April 27, 2007. Final pre−trial conference is set for May 11, 2007, at 10:30 AM, and jury trial for June 18, 2007 at 10:00 AM. Mailed notice (td, ) (Entered: 03/26/2007)
186 MEMORANDUM Opinion and Order Signed by Judge David H. Coar on 3/23/2007.(td, ) (Entered: 03/26/2007)
187 ANSWER to amended complaint by Cook County, Illinois(Catania, Francis) (Entered: 04/04/2007)
188 NOTICE by Cook County, Illinois of Filing Answer to Corrected Amended Complaint (Catania, Francis) (Entered: 04/04/2007)
189 ANSWER to amended complaint and affirmative defenses by Sheriff of Cook County(Gallagher, Daniel) (Entered: 04/04/2007)
190 NOTICE by Sheriff of Cook County re answer to amended complaint 189 of Filing Answer and Affirmative Defenses to Corrected Amended Complaint (Gallagher, Daniel) (Entered: 04/04/2007)
191 MEMORANDMUM by Joseph McGrath, Derrell Smith, Robert Jackson in Opposition to motion for protective order 153 (supplemental) (Flaxman, Kenneth) (Entered: 04/10/2007)
192 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jacksonapprove form of class notice (Flaxman, Kenneth) (Entered: 04/13/2007)
193 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 192 before Honorable David H. Coar on 4/19/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 04/13/2007)
194 MINUTE entry before Judge David H. Coar :MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jacksonapprove form of class notice 192 is entered and continued to 4/25/2007 at 9:00 a.m. Motion Hearing set for 4/25/2007 at 09:00 AM. No need to appear on the noticed motion date of 4/19/2007.Mailed notice (pm, ) (Entered: 04/18/2007)
195 REPLY by Sheriff of Cook County to MOTION by Defendant Sheriff of Cook County for protective order 153 (Gallagher, Daniel) (Entered: 04/23/2007)
196 NOTICE by Sheriff of Cook County re reply to response to motion 195 Reply in Support of the Defendants' Motion for Protective Order (Gallagher, Daniel)

04/24/2007 04/24/2007 04/25/2007
04/27/2007 04/30/2007 04/30/2007 05/01/2007 05/01/2007 05/02/2007 05/08/2007 05/08/2007 05/08/2007 05/08/2007 05/09/2007 05/09/2007 05/09/2007
05/10/2007
05/10/2007

(Entered: 04/23/2007)
208 MINUTE entry before Judge Jeffrey Cole : The defendants' motion for a protective order 153 is denied. Enter Memorandum Opinion and Order. (td, ) (Entered: 05/09/2007)
209 MEMORANDUM Opinion and Order Signed by Judge Jeffrey Cole on 4/24/2007. (td, ) (Entered: 05/09/2007)
197 MINUTE entry before Judge David H. Coar : Motion hearing held on 4/25/2007 regarding motion for miscellaneous relief 192 . MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to approve form of class notice 192 is granted. Mr. Morrissey will file the notice with the Clerk of the Court. Mailed notice (pm, ) (Entered: 04/25/2007)
198 PROPOSED Pretrial Order by Joseph McGrath, Derrell Smith, Robert Jackson (Flaxman, Kenneth) (Entered: 04/27/2007)
199 Notice of Filing of Class Notice by Joseph McGrath, Derrell Smith, Robert Jackson (Flaxman, Kenneth) (Entered: 04/30/2007)
200 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jacksonin limine (Flaxman, Kenneth) (Entered: 04/30/2007)
201 MOTION by Defendant Cook County, Illinoisin limine (Catania, Francis) (Entered: 05/01/2007)
202 NOTICE by Cook County, Illinois re MOTION by Defendant Cook County, Illinoisin limine 201 inadvertantly omitted from FPTO (Catania, Francis) (Entered: 05/01/2007)
203 ATTORNEY Appearance for Defendant Cook County, Illinois by Steven L. Satter (Satter, Steven) (Entered: 05/02/2007)
204 RESPONSE by Sheriff of Cook Countyin Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jacksonin limine 200 (Gallagher, Daniel) (Entered: 05/08/2007)
205 NOTICE by Sheriff of Cook County re response in opposition to motion 204 Plaintiffs' Motion in Limine (Gallagher, Daniel) (Entered: 05/08/2007)
206 MOTION by Defendant Sheriff of Cook Countyin limine #1 through #14 (Gallagher, Daniel) (Entered: 05/08/2007)
207 NOTICE by Sheriff of Cook County re MOTION by Defendant Sheriff of Cook Countyin limine #1 through #14 206 (Gallagher, Daniel) (Entered: 05/08/2007)
210 MOTION by Defendant Cook County, Illinois to join Co−Defendant Sheriff's Responses to Plaintiffs Motions in Limine (Catania, Francis) (Entered: 05/09/2007)
211 NOTICE by Cook County, Illinois re MOTION by Defendant Cook County, Illinois to join Co−Defendant Sheriff's Responses to Plaintiffs Motions in Limine 210 (Catania, Francis) (Entered: 05/09/2007)
212 RESPONSE by Joseph McGrath, Derrell Smith, Robert Jacksonin Opposition to MOTION by Defendant Sheriff of Cook Countyin limine #1 through #14 206 , MOTION by Defendant Cook County, Illinoisin limine 201 (Flaxman, Kenneth) (Entered: 05/09/2007)
213 MINUTE entry before Judge David H. Coar :The time for te final pretrial conference is changed to 4:00 p.m., if the parties are unable to be present at the four o'clock hour, they are to call the Courtroom Deputy to reschedule the conference in its entirety. They are also to call the other side to advise of same. Final Pretrial Conference and Motion in limine 200 , Motion in limine 201 , Motion in limine 206 Motion to join 210 are all reset for 5/11/2007 at 04:00 PM.Mailed notice (pm, ) Modified on 5/10/2007 (pm, ). (Entered: 05/10/2007)
214 MINUTE entry before Judge David H. Coar : By agreement of the parties, the Final Pretrial Conference scheduled for 5/11/2007 is stricken and no one should

05/15/2007 05/15/2007 05/15/2007
05/18/2007 06/04/2007 06/05/2007
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06/12/2007 06/13/2007 06/15/2007 06/15/2007 06/15/2007 07/02/2007 07/17/2007 07/17/2007 07/17/2007
07/31/2007

appear on 5/11/2007. MOTION by Defendant Cook County, Illinois to join Co−Defendant Sheriff's Responses to Plaintiff's Motions in Limine 210 is granted. Final Pretrial Conference and motion in limine 200 , motion in limine 206 , motion in limine 201 are reset for 5/18/2007 at 11:00 AM.Mailed notice (pm, ) (Entered: 05/10/2007)
215 MINUTE entry before Judge David H. Coar :The time for the final pretrial conference is changed to 2:00 p.m. Final Pretrial Conference/Motions in Limine is set for 5/18/2007 at 02:00 PM.Mailed notice (pm, ) (Entered: 05/15/2007)
216 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to compel Posting of Opt−Out Notice (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Morrissey, Thomas) (Entered: 05/15/2007)
217 Motion to Compel Posting of Opt Out Notice NOTICE of Motion by Thomas Gerard Morrissey for presentment of motion to compel 216 before Honorable David H. Coar on 5/18/2007 at 02:00 PM. (Morrissey, Thomas) (Entered: 05/15/2007)
220 MINUTE entry before Judge David H. Coar :Final pretrial conference held on 5/18/2007. Ruling on the motions in limine to follow.Final Pretrial Conference continued to 6/13/2007 at 01:00 PM.Mailed notice (pm, ) (Entered: 06/06/2007)
218 TRANSCRIPT of proceedings for the following dates: 5/18/2007; Before the Honorable David H. Coar. (Document not scanned) (td, ) (Entered: 06/05/2007)
219 MINUTE entry before Judge David H. Coar :Pursuant to telephonic notice from Thomas Morrissey, one of the attorneys for the plaintiffs, this action is tentatively settled. Settlement documents forthcoming.Mailed notice (pm, ) (Entered: 06/05/2007)
221 MINUTE entry before Judge David H. Coar :The attorney for the plaintiff having advised the Court of settlement, the date of 6/13/2007 will also serve as a status. Status hearing set for 6/13/2007 at 01:00 PM.Mailed notice (pm, ) (Entered: 06/06/2007)
222 MINUTE entry before Judge David H. Coar :The status hearing and the Final Pretrial Conference that is set for 6/13/2007 will be held at 02:30 instead of 1:00 PM. Mailed notice (pm, ) Modified on 6/12/2007 (pm, ). (Entered: 06/12/2007)
223 MINUTE entry before Judge David H. Coar :Status hearing held.Advised in open court (jms, ) (Entered: 06/13/2007)
224 MINUTE entry before Judge David H. Coar :The trial date of 6/18/20−7 is stricken, as this case has been settled.Mailed notice (pm, ) (Entered: 06/15/2007)
225 MINUTE entry before Judge David H. Coar : Enter Agreed Order. This case is set for a status hearing 7/17/2007 at 09:30 AM. Mailed notice (td, ) (Entered: 06/21/2007)
226 AGREED ORDER Signed by Judge David H. Coar on 6/15/2007. (td, ) (Entered: 06/21/2007)
227 OPT OUT FORM by Jose M. Olvera. (td, ) (Entered: 07/05/2007)
228 SETTLEMENT Agreement by Sheriff of Cook County and all parties (Gallagher, Daniel) (Entered: 07/17/2007)
229 NOTICE by Sheriff of Cook County re settlement agreement 228 (Gallagher, Daniel) (Entered: 07/17/2007)
230 MINUTE entry before Judge David H. Coar :Status hearing held on 7/17/2007. Settlement approved by Board. Objections/opt outs to the settlement to be filed 30 days prior to Fairness hearing by 9/27/2007.Fairness hearing set for 10/31/2007 at 09:00 AM (signature order to follow from plaintiff). Mailed notice (pm, ) (Entered: 07/17/2007)
231 MINUTE entry before Judge Jeffrey Cole : All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge

08/21/2007 08/28/2007 08/28/2007 08/29/2007
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Jeffrey Cole no longer referred to the case.Mailed notice (jms, ) (Entered: 07/31/2007)
232 MOTION by George Jenkins to be included as a class member. (td, ) (Entered: 08/24/2007)
233 RESPONSE by Joseph McGrath, Derrell Smith, Robert Jackson to MOTION to be included as a class member 232 (Flaxman, Kenneth) (Entered: 08/28/2007)
234 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to approve form of class notice (AGREED) (Flaxman, Kenneth) (Entered: 08/28/2007)
235 MINUTE entry before Judge David H. Coar : MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to approve form of class notice 234 is granted. The form of the class notice attached to the motion is approved. Time in which objections and opt−outs may be filed is extended and reset to 10/8/2007. For the reasons stated in Class Counsel's response 233 to Motion of Class Member George Jenkins, The Motion to be included as a clsss member 232 is denied as moot.Mailed notice (pm, ) (Entered: 08/29/2007)
236 MINUTE entry before Judge David H. Coar :Case settled, following motions are moot and termnated.Motion 88 is moot; Motion to compel 89 is moot; Motion to reset 182 is moot; Motion in limine 200 is moot; Motion in limine 201 is moot; Motion in limine 206 is moot; Motion to compel 216 is moot. Mailed notice (pm, ) (Entered: 09/30/2007)
237 LETTER from Craig Streeter dated 10/1/2007. (td, ) (Entered: 10/03/2007)
238 LETTER from Michael Sherrod Ellis Sr. (td, ) (Entered: 10/09/2007)
239 LETTER from Daniel T. Roberts dated 10/3/2007. (td, ) (Entered: 10/10/2007)
240 OPPOSITION to $3,200,000.00 Distribution Conditions by Class Member Ron Haddad Junior. (td, ) (Entered: 10/11/2007)
241 LETTER from Sanchez Abel dated 8/9/2007. (Document not scanned) (gej, ) (Entered: 10/12/2007)
242 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to extend date for submission of claims (Flaxman, Kenneth) (Entered: 10/26/2007)
243 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 242 before Honorable David H. Coar on 10/31/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 10/26/2007)
244 CERTIFICATE by Joseph McGrath, Derrell Smith, Robert Jackson of Service of Motion to Extend Date for Submission of Claims (Flaxman, Kenneth) (Entered: 10/26/2007)
245 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to extend date for submission of claims (corrected) (Flaxman, Kenneth) (Entered: 10/26/2007)
246 Plaintiffs' Memorandum in Support of Proposed Settlement by Joseph McGrath, Derrell Smith, Robert Jackson (Flaxman, Kenneth) (Entered: 10/26/2007)
247 RESPONSE by Cook County, Illinoisin Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to extend date for submission of claims (corrected) 245 , MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to extend date for submission of claims 242 (Attachments: # 1 Exhibit Letter to Morrissey Dated 100407)(Catania, Francis) (Entered: 10/26/2007)
248 NOTICE by Cook County, Illinois of Response in Opposition (Catania, Francis) (Entered: 10/26/2007)
249 MINUTE entry before Judge David H. Coar : Motion hearing held on 10/31/2007 regarding motion for miscellaneous relief 245 . MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to extend date for submission of claims 245 is granted for an additional 30 days from the date of the original date for filing

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05/05/2008 05/08/2008

claims. Time to file claims is extended to and including 11/22/2007. In court Fairness Hearing held on 10/31/2007, no one appeared opposing the settlement, the settlement is approved − the attorney to submit a signature order. Mailed notice (pm, ) (Entered: 10/31/2007)
250 MINUTE entry before Judge David H. Coar : The Court finds that the class is appropriate under FRCP 23, and notice provisions satisfy the requirements of FRCP 23. The Court finds the settlement is fair and reasonable, and hereby Approves the Agreement submitted by the parties. Payments to the unnamed members of the class shall be made by the defendant. Jackson, Smith and McGrath shall receive $25,000.00. Class counsel awarded − costs $45,012.32 and attorney fees in the total amount of $1,000,000.00. Civil case terminated. Enter Final Approval Order. Mailed notice (td, ) (Entered: 11/06/2007)
251 ORDER Signed by Judge David H. Coar on 11/2/2007. (td, ) (Entered: 11/06/2007)
252 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson for Guidance in Responding to Late Claims (Flaxman, Kenneth) (Entered: 12/03/2007)
253 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 252 before Honorable David H. Coar on 12/6/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 12/03/2007)
254 MINUTE entry before Judge David H. Coar :Motion hearing held on 12/6/2007 regarding # 252. Motion 252 by plaintiffs for guidance in responding to late claims is resolved. The time for filing claims is extended to March 31, 2008. After the expiration of the deadline of 3/31/2008, the remaining unclaimed money shall be returned to the County. Mailed notice (pm, ) (Entered: 12/06/2007)
255 CLAIM FORM by Gregory Reese. (gej, ) (Entered: 02/05/2008)
256 MOTION by Unknown George Jenkins for the Court's intervention (Exhibits). (td, ) (Entered: 03/10/2008)
257 NOTICE of OBJECTION by Charles Dimick. (td, ) (Entered: 03/12/2008)
258 RESPONSE by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to motion to intervene 256 , objections 257 (Flaxman, Kenneth) (Entered: 03/12/2008)
259 RESPONSE by Defendant Cook County, Illinois to Objection by George Jenkins (Catania, Francis) (Entered: 03/14/2008)
260 NOTICE by Cook County, Illinois of Filing Response to Objection by George Jenkins (Catania, Francis) (Entered: 03/14/2008)
261 RESPONSE by George Jenkins to defendant response to objection. (Exhibit). (gmr, ) Modified on 4/22/2008 (ea, ). (Entered: 04/04/2008)
262 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to enforce judgment and to allow payment of late claims (Flaxman, Kenneth) (Entered: 04/30/2008)
263 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to enforce judgment 262 before Honorable David H. Coar on 5/5/2008 at 09:00 AM. (Flaxman, Kenneth) (Entered: 04/30/2008)
264 MINUTE entry before Judge Honorable David H. Coar: Set deadlines/hearing as to motion to enforce judgment 262 :Responses due by 5/8/2008.MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to enforce judgment and to allow payment of late claims 262 is entered and continued to 5/13/2008 at 9:00 a.m. Motion Hearing set for 5/13/2008 at 09:00 AM. Parties need not appear on the noticed motion date of 5/5/2008.Mailed notice (pm, ) (Entered: 05/01/2008)
265 MOTION for appointment of counsel. (gej, ) (Entered: 05/08/2008)
266 RESPONSE by Cook County, Illinoisin Opposition to MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to enforce judgment and to allow payment of late claims 262 (Catania, Francis) (Entered: 05/08/2008)

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267 NOTICE by Cook County, Illinois of Filing Response to Motion to Enforce (Catania, Francis) (Entered: 05/08/2008)
268 REPLY by Joseph McGrath, Derrell Smith, Robert Jackson to response in opposition to motion 266 , MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jackson to enforce judgment and to allow payment of late claims 262 (Flaxman, Kenneth) (Entered: 05/08/2008)
269 MINUTE entry before Judge Honorable David H. Coar:Motion to appoint counsel 265 is denied; Motion # 265 is terminated.Mailed notice (pm, ) (Entered: 05/12/2008)
ORAL MOTION by Plaintiffs for a motion hearing on 5/14/08 at 9:30 a.m. (cdh, ) (Entered: 05/13/2008)
270 MINUTE entry before Judge Honorable Jeffrey Cole:Oral motion by plaintiffs' for hearing on motion 262 on 5/14/08 at 9:30 a.m. is granted. Oral arguments shall be heard on 5/14/08 at 9:30 a.m. on plaintiffs' motion 262 before Magistrate Judge Cole. Mailed notice (cdh, ) (Entered: 05/13/2008)
271 MINUTE entry before Judge Honorable David H. Coar: ; Motion hearing held on 5/13/2008 regarding motion to enforce judgment 262 . Motion to enforce judgment 262 is referred and continued before the Magistrate Judge. Mailed notice (pm, ) (Entered: 05/13/2008)
ORAL MOTION by Plaintiffs to withdraw B)to allow payment of late claims 262 . (cdh, ) (Entered: 05/14/2008)
272 MINUTE entry before Judge Honorable Jeffrey Cole:Motion hearing held. Oral arguments heard. The plaintiff has moved to compel the defendant to pay approximately 3,106 claims that he contends were timely filed, that is by March 31, 2008, and to allow payment of approximately 67 admittedly late claims. The Sheriff has objected on a number of grounds, the first being that March 31, 2008 was not the outside date by which to measure timeliness under the Settlement Agreement. The original date for the filing of claims had been extended by Judge Coar on various occasions, the last extension being granted on 12/6/07. That extension came in response to class counsels request for guidance to assist him in responding to claims that were filed after November 22, 2007 −− the date to which Judge Coar had extended the date for the filing of claims under the Class Action Settlement Agreement. The motion had proposed various solutions to deal with the issue. After reviewing those proposals, Judge Coar entered a minute order that stated "the time for filing claims is extended to March 31, 2008." The defendant contends that Judge Coar meant only to extend the filing date for those claims that were already late. (i.e, that were received after November 22nd). I think that an untenable reading of the order. If that were Judge Coar' intent, the order would have provided that the post−November 22nd claims would be deemed timely. Alternatively, the order would have adopted one of class counsel's alternative remedial mechanisms suggested in his December 3rd motion. [#262]. Judge Coar chose a different, more encompassing, and administratively easier solution: he simply extended the filing date across the board. The defendant's second concern is what he has characterized as the lack of diligence by class counsel in informing him of the existence of more than 3,000 claims which class counsel says were timely filed in accordance with Judge Coar's December 6th minute order. While it would have been perhaps better had this information been provided at an earlier time to the Sheriff, nothing in the Sheriff's responsive brief supports the conclusion that timeliness under the settlement agreement is a function of the date of notification to the Sheriff. The Sheriff is certainly entitled to an appropriate certification by class counsel that the approximately 3,000 plus claims at issue and there appear to be slightly more than the 3,106 referred to in the motion are valid and timely. Accordingly, class counsel is instructed by Friday, May 16, 2008, to file an appropriate certification regarding these claims that provides that the claims are valid and timely and explains in an overall way the basis for the conclusion. Beginning immediately, class counsel is also instructed to provide comprehensive reports on a weekly basis to counsel for the Sheriff regarding claims received. This obligation shall remain in effect until further order of court. The content of the reports is to be agreed upon by counsel for the Sheriff and class counsel. If they cannot agree on the content, the court will specify what should be included in the

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reports. Class counsel has orally moved to withdraw Part B of the motion which is to allow payment of late claims. That motion is granted without prejudice. The motion to require payment of valid and timely filed claims is granted subject to the conditions set forth herein. If the Sheriff seeks to contest the adequacy of the certification required under this order, he is free to do so within 7 days of receipt of the certification. Advised in open court. (cdh, ) (Entered: 05/14/2008)
273 Certification of Counsel as to Timeliness of Claims by Joseph McGrath, Derrell Smith, Robert Jackson (Flaxman, Kenneth) (Entered: 05/16/2008)
274 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Jeffrey Cole to hear and rule on Motion to enforce judgment 262 pursuant to Local Rule 72.1. Signed by Executive Committee on 5/20/2008. (gmr, ) (Entered: 05/22/2008)
275 STATUS Report on claims by Joseph McGrath, Derrell Smith, Robert Jackson (Flaxman, Kenneth) (Entered: 06/01/2008)
276 MOTION by Plaintiffs Joseph McGrath, Derrell Smith, Robert Jacksonto establish procedure to adjudicate "late claims" and to establish schedule for defendant to respond to reports of non−received checks (Flaxman, Kenneth) (Entered: 07/14/2008)
277 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief 276 before Honorable Jeffrey Cole on 7/17/2008 at 08:30 AM. (Flaxman, Kenneth) (Entered: 07/14/2008)
278 MINUTE entry before the Honorable Jeffrey Cole: Motion hearing held. Plaintiff's motion A) to establish procedure to adjudicate "Late Claims," and B) to establish schedule for defendant to respond to reports of non−received checks 276 is entered and continued to 8/5/2008 at 08:30 AM. Mailed notice (gmr, ) (Entered: 07/23/2008)
279 MINUTE entry before the Honorable Jeffrey Cole: Motion hearing held. Status hearing is set for 9/11/08 at 9:30 a.m. Plaintiffs' motion to establish procedure to adjudicate "late claims" and to establish schedule for defendant to respond to reports of non−received checks 276 is granted based on the agreement reached between counsel as discussed in court. Mailed notice (gmr, ) (Entered: 08/07/2008)
280 MOTION to intervene as plaintiff by Isaac Briggs. (Exhibits). (gmr, ) (Entered: 08/22/2008)
281 MINUTE entry before the Honorable David H. Coar:MOTION to intervene as plaintiff by Isaac Briggs 280 is denied− Motion#280 terminated. Mailed notice (pm, ) (Entered: 09/04/2008)
282 MINUTE entry before the Honorable Jeffrey Cole: Status hearing held and continued 10/2/08 at 8:30 a.m. Mailed notice (gmr, ) (Entered: 09/12/2008)
283 NOTICE by Kenneth Poindexter of Change of Address. (gmr, ) (Entered: 09/29/2008)
284 STATUS Report by Robert Jackson (Flaxman, Kenneth) (Entered: 09/29/2008)
285 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held and continued to 11/10/2008 at 8:30 AM.Mailed notice (cdh, ) (Entered: 10/02/2008)
286 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held and continued to 11/12/2008 at 8:30 AM.Mailed notice (cdh, ) (Entered: 11/10/2008)
287 MINUTE entry before the Honorable Jeffrey Cole:Status hearing held on 11/12/2008 and continued to 12/16/2008 at 8:30 AM.Mailed notice (tlp, ) (Entered: 11/12/2008)
288 STATUS Report on claims requiring adjudication of cause by Robert Jackson (Flaxman, Kenneth) (Entered: 12/15/2008)
289 MINUTE entry before the Honorable Jeffrey Cole: Status hearing held and continued to 1/14/2009 at 08:30 a.m. Mailed notice (gmr, ) (Entered: 12/17/2008)

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290 MINUTE entry before the Honorable Jeffrey Cole: Enter nunc pro tunc 12/16/08: Order Terminating Claims. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. (For further detail see separate order.) Mailed notice (gmr, ) (Entered: 01/12/2009)
291 ORDER Terminating Claims Signed by the Honorable Jeffrey Cole on 1/8/2009. (gmr, ) (Entered: 01/12/2009)
292 MINUTE entry before the Honorable Jeffrey Cole:Status hearing set for 1/14/09 is stricken pursuant to minute order of 1/7/09, closing the referral. Mailed notice (cdh, ) (Entered: 01/12/2009)
293 MOTION by Plaintiff Robert Jackson to enforce settlement (Flaxman, Kenneth) (Entered: 04/02/2009)
294 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to enforce 293 before Honorable David H. Coar on 4/8/2009 at 09:00 AM. (Flaxman, Kenneth) (Entered: 04/02/2009)
295 MINUTE entry before the Honorable David H. Coar:Motion hearing held on 4/8/2009 regarding motion to enforce 293 : Plaintiffs' Second Motion to enforce 293 is entered and continued 4/15/2009 at 09:00 AM. Mailed notice (pm, ) (Entered: 04/09/2009)
296 MINUTE entry before the Honorable David H. Coar: Motion hearing held on 4/15/2009 regarding motion to enforce 293 .MOTION by Plaintiff Robert Jackson to enforce settlement 293 is continued 5/12/2009 at 09:00 A.M. Mailed notice (pm, ) (Entered: 04/15/2009)
297 MINUTE entry before the Honorable David H. Coar: Motion by Plaintiff Robert Jackson to enforce settlement is entered and continued to 5/28/2009 at 9:00a.m. Mailed notice (slb, ) (Entered: 05/12/2009)
298 MINUTE entry before the Honorable David H. Coar: Motion hearing held on 5/28/2009 regarding motion to enforce 293 Motion to enforce 293 is moot as checks were cut. Plaintiffs' oral motion to set a deadline as stated on the record is denied. Mailed notice (pm, ) (Entered: 06/01/2009)
299 MOTION by Movant David Johnson for a late claim. (gmr, ) (Entered: 06/25/2009)
300 MINUTE entry before the Honorable David H. Coar:Motion by movant David Johnson for a late claim 299 is set for a status hearing 7/14/2009 at 9:00 a.m. Status/Motion Hearing set for 7/14/2009 at 09:00 AM.Mailed notice (pm, ) (Entered: 07/06/2009)
301 MINUTE entry before the Honorable David H. Coar: Motion hearing held on 7/14/2009 regarding motion for miscellaneous relief 299 . David Johnson's Motion for late claim 299 is referred to and continued before Judge Cole. Mailed notice (pm, ) (Entered: 07/14/2009)
302 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Jeffrey Cole pursuant to Local Rule 72.1 to hear and rule on Motion 299 of David Johnson for late claim. Signed by Executive Committee on 7/23/2009. (gmr, ) (Entered: 07/27/2009)
303 MINUTE entry before the Honorable Jeffrey Cole: Hearing on David Johnson's Motion for a Late Claim 299 is set for 8/11/09 at 9:30 a.m. Mailed notice (gmr, ) (Entered: 08/05/2009)
304 VIDEO WRIT issued as to David Johnson before Magistrate Judge Jeffrey Cole set for 8/11/09 at 9:30 a.m. faxed to Logan Correctional Center for service. (gmr, ) (Entered: 08/05/2009)
305 MINUTE entry before the Honorable Jeffrey Cole: Logan Correctional Center telephonically notified the court the video conference at Logan Correctional Center is unavailable at 9:30 a.m. on 8/11/09. Hearing on David Johnson's Motion for a Late Claim 299 set for 8/11/09 at 9:30 a.m. is reset to 8/11/2009 at 11:00 a.m. (gmr, ) (Entered: 08/06/2009)

07/31/2009 08/11/2009 08/20/2009
08/20/2009

306 VIDEO WRIT issued as to David Johnson before Magistrate Judge Jeffrey Cole set for 8/11/09 at 11:00 a.m. faxed to Logan Correctional Center for service. (gmr, ) (Entered: 08/06/2009)
307 MINUTE entry before the Honorable Jeffrey Cole: Motion hearing held on 8/11/2009. Movant David Johnson having appeared by phone. Movant David Johnson's motion for a late claim 299 is denied. Draft order to follow. Mailed notice (yp, ) (Entered: 08/11/2009)
308 MINUTE entry before the Honorable Jeffrey Cole: David Johnson's Motion for Late Claim was denied on 8/11/09. Enter Order Denying Motion for a Late Claim. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. (For further detail see separate order(s).) Mailed notice (gmr, ) (Entered: 08/24/2009)
309 ORDER Denying Motion for a Late Claim Signed by the Honorable Jeffrey Cole on 8/20/2009. (gmr, ) (Entered: 08/24/2009)

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

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

)

)

)

)

No. 06 C 0493

)

)

Judge David H. Coar

)

)

)

Magistrate .Judge .Jeffrey Cole

)

)

)

MEMORANDlJM OPINION AND ORDER

The defendants, SheriffofCook County, and Cook County, Illinois, have mov",d for the entry

of a protective order "with regards to a class discovery issue." (Sher!tto/Cook County's Motionjor

PI'II/eclive Order, at 1). The problem, however, is that the defendants are not raising a "discovery

issll"" at all; instead, as defendants finally conceded in their "Supplemental Brief in Support of

Motion for Protective Order," they are seeking a change of Judge Coar's certification of the class.

As such, it is beyond the scope 01' Judge Coar's referral for all discovery disputes and discovery

motions, and I have 110 authority to grant it.

On December 14,2006, after briefing and a hearing on the question of class certification,

Judge Coal' issued a Memorandum Opinion and Order granting the plaintiffs' motion for class

certification under Fed.R.Civ.P. 23(b)(3). The class is defined as:

All male prisoners at the Cook County Jail who, on and after January 27,2004, was [~icJ suhjected to the non-consensual insertion ora swab into his penis as part of his admission to the jail.

(Memorandum Opinion and Order, 12/14106, at 2-3). Judge Coal' reiterated lhis as the definition

of the class as recently as March 23, 2007. (Memorandum Opinion and Order, 3/23/07, aI3-4). The derend,mt'~ original3-pagc motion sought a protective order "limiting class discovery"
or to certain inmates, who were defined by age and dates admission into the jail. (Sherif/o/Cook
Coun~y 's Motion, a( 3). The motion argued that evidence provided in discovery had shown that only certain male prisoners at the Cook County Jail had been subjected to the non-consensual insertion of a swab in(o his penis a~ part of his admission to the jail after January 27, 2004, and thus, the discovery that was being sought in order to provide notice (0 the class, was overly broad and overly burdensome. Concemed that unless the class were redefined, the costs or mailing would be (needlessly) excessive and that there would be a substantial number offalse claims (how many, the defendants could not begin (0 guess), the motion sought a protective order, the erfect ofwhich would bc to provide notice only to individuals of a celtain age who had been admitted to tlle jail during certain defined periods, as opposed to all those who had entered the jail after January 27, 2004, as Judge Coar's class cCltification seemed to require.
Apart from (he superficiality of the presentation - the motion cited no cases and did not discuss the principles applicable to issuance of protective orders, see Au/olech rechnologies Ltd. Partnership v. Au/omaliondirecl.com. Inc., 235 F.R.D. 435, 439-40 (N.D.Ill. 20(6); Silva v. Fortis Benefits Ins. Co., 437 F.Supp.2d 819, 827 (N.D.IIl. 2(06) and thus did not go far to supporting the argument bcing advanced, see Kyles v. JK. Guardian Sec. Services, 236 F.R.D. 400 (N.D.llL 2(06) - the motion failed to recognize a critical problem lurking heneath the surface. Judge Coar had defined the class as "all male prisoners at the Cook County Jail who, on and aller January 27,2004, was subjected 10 the non-consensual insOliion of a swab into his penis as part of his admission to the jail" To grant what appeared to be a discovery motion would effectively redefine the class as
2

del1ned by Judge Coar and would result in an underinclusive notice to the class as Judge Coar envisioned it.
Members of a Rule 23(b)(3) dass must receive reasonable notice and an oppOliunity to opt out; that is an absoluk and unambiguous jurisdictional requirement for a COUlt to exercise jurisdiction over those class members. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974); Smilh v. Shawnee !.ibrary System, 60 F.3d 317, 321 (7th Cir. 1995); (fert v. Elgin Nat 'I Indus , Inc., 773 F.2d 154, 159-60 (7th Cir.1985). Thus, when notice is not sent to a Rule 23(b)(3) class until after the resolution or a motion for summary judgment, the party moving for summary judgment risks that the resulting order may not be binding On the <Ibsent class members. See J~fJerson v. Ingersolllnl'I Inc., 195 FJd 894, 896-97 (7th Cir.1999); Murray v. E*lJ<ade Financial Corp., 240 F.R.D. 392,400-401 (N.OJl!. 20(6); Williams v. I,anl!, 129 F.R.O. 636, 647-648 (N.O.Ill. 1990). Defendants apparently risked as much here, moving for summary judgment while appart'nUy delaying notice to the class as del1ned. See Shawnee Library S:ystem, 60 F.3d at 322 (defendants resisted motions to notity class and when summary judgment was granted, it was not effective as
against the entire class); compare Mortimer v. Rani, 2005 we 3497817, '4 (CO.Cal. Declaration.
20, 2005)(sheriffs department has the ability to compile a list of individuals who meet the class del1nition in this case).
Concerns similar to those dd'end,mls raise here - that notice to a class, which is broadly defined because onhe difliculty in defining it more nan·owly (and obviously more hroadly tilan the plaintiffs would like) - were addressed hy Judge Coar in another context by reference to the Seventh Circuit's finding that class actions should not be defeated "'because the prospective rct"i.mder has taken so much from so many that complexities arise.'" In re Sulfitric AcidAntitrust Litigation, 2007
3

WL 898600, *9 (N,D.lll, Mar. 21, 2007)(Coar, JV
At my suggestion, the defendants filed a "Supplemental Brier in Support of Motion for
Protective Order." While the Supplemental Brier still seeks a protective order, it elTectively
concedes that, at bollolll, what is sought is a redefinition of the class so that it conforllls to what the defendants claim has been revealed by the evidence in the case. (Supplemental Briej; at 1). The
redelined class, whieh the defendants contcnd is necessitated by the evidence adduced in discovery,
would limit class notification - which is simply an indirect way of redefining a class - 10: a, All inmate~ entering the Cook County Jail between June 24, 2004 and July 29, 2004, b, AII inmates aged 25 years old and youngcr cntering the Cook County Jail between April 1,2005 up to September 1,2005,
c, All inmates aged 35 years old and younger entering thc Cook County Jail b",\ween September 1, 2005 up \0 September 1,2006,
d, All inmates aged 25 years old and younger entering the Cook County Jail between Septemb",r 1,2006 <\nd January 25, 2007,
(Defendants' Supplemental Briel; at 5),
Ther", is no doubt that alier certifying the class, a court retains broad power to modify the
class definition ifit believes that it is inadequate. Gates v, Towery, 456 F,Supp.2d 953, 966 (N,D,1ll. 2006); Ruyd""-RoberSOIl v, Cilihallk Fed Sav. Bank, 162 F,R.D. 322, 328-29 (N.D,1ll.1995), It can
1 This is but a pa,ticularized application of the overarching principle that difficulties in proof occasioned by an adversary's own comlue( docs not result in a kind of immunity for the wrongdoer. Compare Anderson v, MI, Clemens PoI/elY Co" 328 U,S, 680, 688 (1946)(employer can't complain about inexactitude of damage award where he failed to keep I'ceOl'ds in accordance with statutory requirements); J Truell P"U.'ll" Co" Tne, v, Chrysler MOlors Corl'., 451 U.S, 557, 566 (1981); Uniled SlaleS v, Cohen, 145 F,2d 82 (2"d Cir, 194)(L.Hand, J.)("1t is a strange conception ofjustice that, if one only tangles one's crimes enough One gets an immunity because the result if beyond the powel' of ajlllY to unraveL"),
4

do ~o if at any time before a final judgment on the merits if the evidence or the legal principles
establishes that the class definition is (00 broad. Fed.R.Civ.P. 23(c)(1); In re Su/jilric Acid Antitrust
l.i/igation, 2007 WL 898600 at *9; Buycks-Roberson, 162 F.R.D. at 329. But it scarcely follows
from these general principles, that I am authorized to grant the requested relief.
Fed~ral courts are, as the Seventh Circuit continually cautions, courts oflimitedjurisdietion,
which must be ever-vigi Iant (0 ensure that jurisdictional limits are not transgressed.' The jurisdiction
of magistrate judges is even more limited than that or Article 1lI judges. The answer to Judg~
Posner's rhetorical question in Smool- "Does it really matter if federal courts decide on the merits
cases that they are not actually authorized to decide'!" is every bit as important to magistrate judge
jurisdiction as it is in (he cont~x( in which he posed it. For magistrate judges, no less than for district
judges, there must be strict adherence (0 (h~ rules (hat seek to ensure that f~deral courts do not
exceed the limits that (he Constitution and federal statutes impose on their jurisdiction.
My power in this and all other matters is defined and limited by 28 U.S.c. § 636. Rodl v.
Withrow, 538 U.S. 580, 585 (2003); Pinks/on v. Madry, 440 F.3d 879, 893 (7th Cir. 2006). See
general(y JeJlrey Cole, Magistrate Judge Practice, Chap. 10, § I0.2, llIin()i~ Institute or Continuing
, See, e.g., Smoot v, Mazda MOlors ofAmerica. Inc., 469 F.3d 675 (7th Cir. 2006)(1'0sn~r, J.); Blue Cross and Blue ShieldAssn. v. Americal1l\xpr""". Co" 467 F.3d 634 (7'" Cir. 2006)(Easlcrbrook, J.)("lfthese lawyers were physicians, their patients would be dead."). Some lawyers have objectcd to whatlhcy se~ as the n~edless stridency of the language of the opinions and the excessiveness o[the results. See Howard 1. Bashman. Commentary: Have 7th CirC"il Judges Gone Off Ihe Deep End?, at htlp:l/www.law.com/jsp/m1icle.jsp?id=1 165582068191. One blogger has pr~dict~d a gloomy future for appellate practice in the Seventh Circuit: "The Mazda/Smool decision is a scary warning to all federal appellate practitioners. Also scary is the 20 minute audio of the oral argument, in which Judges Posner and Easterbrook tlay both counsel like th~y were pulling the wings off of a tly." www.indianalawblog.com/documents/RG-9.pdf.Th~s~ sorts of over-reactions have little to commend them and conveniently overlook the court's repeated warning, about rule violations that for too long have gone unheeded - at least in the Court or App~al's view. Smoot, 469 F.3d at 677.
5

r,~gal Educa(ion (Federal Civil Practice 2(06). Section 636(b)( I )(A) provides in pertinent part:
(A) a judge may designate a magistrate judge to hear and determine any pretrial ma((er pending be«lTe the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, (0 dismiss or to permit maintenance of a class action, to dismiss for failure (0 stak a claim upon which relief can be granted, and to involuntarily dismiss an action.
I need not decide whether a motion to redefine a class falls within a motion "to dismiss or permit maintenance of a class action" and thus isinappropriatc for determination by me, although it would appear that it is. What is certain is that resolution ofthe motion, which is detellllined not by its title but by its subs(allce, Gl~yton v. United Slates, 453 F.3d 425, 426 (7'" Cir. 2006), depends upon redefining the class and thus involves infinitely more than discovery matters, which are all that Judge Coar has referred here. My authority in this case is canalized by the scope ofthat referral. As defendants have now admitted, this is not a discovery dispute or discovery motion, J have no authority to rule on the motion.
In support of the argument that I have authority to enter an order that effectively would
change the class definition, the deiendan(s rely upon ".Jarme.l'ek lsicl v. Acromed, 1995 U.S.Dist.
LEXIS 18245 (N.D.Ill. December 6, 1995)." (Defendants' Supplemental Brief; at 2). The citation of the casc·· presumably Jamasek v. Acromed _. is mystifying, for it docs not discuss class certi fication, class definition, or class actions at all. Nor does it address the authority or a magi~trate judge to make such rulings. In addition, the case docs not cite, as the defendants suggest, Baxter v. Savannah Sugar R(/ining Corp., 1968 U.S.Dis!. LEXIS 8719 (S.D.Ga. 1968). See Jamasek v. Acromed Corp., 1995 WL 733466 (N.D.lll. 1995).
No doubt recognizing the juri~dictional prohlem llI1derlying thc requested relief, the
6

ddendants alternatively sugge~t that I issue a report and recommendation on the matter pursuant to §636(b)(i)(13) which provides:
(13) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings offact
~nd recommendations t<)[ the disposition, by a judge of the court, or any motion
excepted in subparagraph (A), ol'applications for posttrial rclicfmadc by individuals convicted or criminal offenses and of prisoner petitions challenging conditions of confinement.
This request exceeds the defendants' authority as parties and my authority as well. Requests for a report and recommendation must come from the district court. However, a review of the evidence the defendants have marshaled to support. their demand that the class delln"d in Judge Coar's order be modified reveals that their argument is less than convincing. The evidence consists of: I) the deposition testimony ofthe head of Cermak Health Services STO Clinic, Dorothy Murphy; 2) a paper publish"d on the inmate STO swab testing; 3) the declaration or Dr. James McAuleywho was the medical director at Cermak at the time; and 4) some 400 employee sign-in sheets Irom inmatc intilke. According to the defendants, this evidence shows that c1as~ delinition ought to be pared to fit the time Irame and parameters espoused in their motion. Unfortunately the evidence is, at turns, contradictory, inexact, and not particularly probative. A~ sllch, the truncated class definition the defendants propos" has little to support it.
Ms. Murphy testified that "around April" of2002, Dr. McCauley -then medical director at
Cermak - discontinued STO swab testing as a part of inmate intake. (Sheri!! '!f Cook County's
Motion, Ex, A, Murphy Dep., p. 19), According to the paper published on the study, however, univo:rsaJ screening was not discontinued untilncarJy 'I year l~.ler, in March of2003. (SheriffofCook
County's Motion, Ex. B, p. 1), Dr. McAuley him sell; however, indicates that the testing was not
7

discontinued until May of 200]. (Defendants' Supplemental Rrie}; Ex. 1). Once the testing was discontinued. whenever that actually might have been, the City of Chicago's Health Dcpartment became concerned and provided funding for a "Continuous Quality improvement" project designed to determine parameters ofthose most at risk t()r STDs, as opposed to more costly universal testing. (Murphy Dep.• p.21).
The cQr project began with Ms. Murphy and one of the doctors reviewing 200 treatment records from either 2002 or 2003 - she could not recall which year - in order to develop a criteria for screening. (ld., p. 26-27). Sometime in June of2004 ... again, Ms. Murphy could not recall exact dates - (esting began on all male detainees, and continued through July of2004. (ld, pp. 28-29). According to the published study, the date was June 24'''. (Ex. B; p. I). it is not entirely clear from Ms. Murphy's deposition testimony that the screening ended in July 2004, but again, the paper indicates that the screening concluded on July 29, 2004. (Ex. 13, p. I). Ms. Murphy recalled that some 5900 dctainees were screened that month, although she allowed that she was on vacation ti)]" part of the til11e at issue. (Murphy Oep., pp. 36-37). The study states that 5634 detainees were
screened. (Ex. n, p.2).
Ms. Murphy testitled that, after the study, "(iJt was not the practice and the policy to do universal male STD screening," but that a detainee would be tested if he came through with "complaints ofsigns and symptoms ofSTD requiring medical attention ... " (Murphy Dep.. P. 49). According to Ms. Murphy, universal screening apparently began again in April 0[2005. (Id, pp. 4849). Rut, not surprisingly after the passage or time, her recollection of the parameters for the screening was less than clear:
Q: After April 0(2005, was it the practice and policy at Cennak to ulliversally screen male detainees?

A: It was the practice to universally screen male - all male detainees. It was the practice to provide focus scr",ening for urethral sWitbbing to persons 35 and under and symptomatic persons.
Q: For what period of lime after April-
A: I'm sorry, it was 25 and under. Wt: chunged it to 35 and under in September of 2005. Q: From April 1",2005, through September 1",2005, there was universal screening or mule detainees 25 years old and under, is that correct?
A: Uh-huh, about mid April.
Q: Aft.er September 1",2005, to the preSent, has there been universal scrt:ening of male detuinees using a urdhral swab for those 35 yeurs old and under? A: It was until about three months ago wht:n we ugain have run into problems with financing the program.. __ aguin reduced screening uge to 25 years and under or symptomatic, and five days a week for males and daily ror females because of money.
(ld, pp. 49-50). Ms. Murphy could not recall whether the date of the cbange wus two or three months prior to her deposition, which took place on November 15,2006. (Jd., pp. 50-51).
Beyond Ms. Murphy's testimony, which is less than exact at times, and the published study contrudicting her recollection of the date testing was discontinued, and Dr. McCauley's statement
contradicting both Ms. Murphy and the study on (hat date, the defendants submit copies of nearly 400 shift sign-in sheet~ from Cermak Health Services. (Defendants' Supplemental Brief, Ex. 2, pp. 00527-00913). Tbe defendants explain thaI the sheets document when someone was assigned to
pertorrn STD testing, noting that there were sheets among the 400 without any "STD" notation,
consistent with testimony that there wt:re days when none was performed due to lack or supplies. (Defendants' Supplemental Brief; ut 3).
Not clear frolll defendants' oi'lering IS what it proves. Although not presented III
9

chronological order, the sheets appear to span a time period from July 1,2004 (p. 00527) to January 31,2007. (p.00883). Obviously, then, as that is about a 940-daytime period, there is a sign-in sheet for fewer than half the days during that period. Whether testing occurred on those days - days incl uding those on which defendants daim there was nO tesling - is left unaddressed. So, basically, in order to show that testing concluded at the end of July 2004, defendants submit the sign-in sheets for that month (pp. 00527-00557) - with none for the following month. The next sign-in sheet provided is from April 26, 2005. (P.00559). Perhaps every sign-in sheet in the interim includes an "STO" notation. It is as ifthe ddendants seek to prove that there was no swah testing outside the temporal parameters of their redefined class by witWlOlding sign-in sheets from the days outside those parameters.
Of course the absence of evidence can, in the appropriate context, have evidcntialY signilicance. However, the reaS(lIlS ror the absence must he expbined, otherwise the absence is irrelevant. See Rule 40J, Federal Rules of'Evidence. The absence of an entry in records may he
or admissible to prove the nonoccurrence of the matter if the matter was a kind of which a
memorandum report record or data compilation was regularly made and preserved. Rule 803(7), Federal Rules ol'Evidence. But that is nollhe kind o rprooI'adduced by the defendants. Their proof is 110t that records that span and include relevant time periods railed (0 reflect testing; rather, it is that lhere are no records, and Irom the silence of the evidentiary record J am authorized, indeed compelled, to conclude that there was no testing. But, "inferences from silence are perilous," Posner, Cardozo: 1\ Study In Reputation, 37 (1990). Accord Uniled Slales v. Hale, 422 U.S. 171, 176 (1975); Coleman \I. Inlerco Inc. Divisions' Plans, 933 F.2d 550, 552 (7'" CiT. 1991)(PosneT, .I.).
There is nothing to establish the method or manner ofreeord-keeping employed in the sign-in
10

sheets. Perhaps STD assignments were not recorded religiously: even a cursory review of the 400 pages reveals that STD assignments were recorded in different columns. (See, e.g., pp. 00620, 00622,00625-26,0(634). There were also occasions where whoever was compiling the sheet did not bother to provide all the requested information, leaving certain col umns hlank, as with the equipment invenlory columns which require a notation ofpresence or ab~ence. (See, e.g., pp. 00591, 00594,0060 1,00603-05,00619-21,00639-41,00829-31). Perhaps, like equipment inventory, STD assignments were not noted every shift. In any event, the sign-in sheets fail to demonstrate with any certainty that testing was not performed on the days defendants contend it was nol performed. The sign-in sheets prove little on their own, and perhaps less when combined with the other contradictory and inexact evidence.
CONCLUSION
For the Joregoing reasons, the defendants' motion for a protective order [# 153Jis DENTED.

DATE: 4/24/07

ENTERED:

I I