United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:17-cv-08729

Hardeman v. County of Lake Assigned to: Honorable Sharon Johnson Coleman Referred to: Honorable Young B. Kim Case in other court: 18-02672 Cause: 28:1983 Civil Rights

Date Filed: 12/04/2017 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Tapanga Hardeman

represented by Ashley Meghan Murray O'Connor Law Firm, Ltd. 19 S. LaSalle Street Suite 1400 Chicago Chicago, IL 60603 (847) 691-0479 Email: amurray@koconnorlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin William O'Connor O'Connor Law Firm 19 South LaSalle Street Suite 1400 Chicago, IL 60603 312 906 7609 Email: koconnor@koconnorlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Daniel Williams

Matthew M. Popp O'connor Law Firm, Ltd. 19 S. Lasalle Street Suite 1400 Chicago, IL 60603 (312) 906-7561 Email: mpopp@koconnorlaw.com ATTORNEY TO BE NOTICED
represented by Ashley Meghan Murray (See above for address) LEAD ATTORNEY

Plaintiff Lewis Myles
Plaintiff Quenta Lamar Washington
Plaintiff Lavonte Murel
V. Defendant County of Lake

ATTORNEY TO BE NOTICED
Kevin William O'Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashley Meghan Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William O'Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashley Meghan Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William O'Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashley Meghan Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William O'Connor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Beth Greenberg Prager Lake County State's Attorney

Defendant Office of the Lake County Sheriff
Defendant Mark Curran Sheriff

18 N. County Street Waukegan, IL 60085 (847) 377-3050 Email: bprager@lakecountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Denise Fox Lake County State's Attorney's Office 18 North County Street Waukegan, IL 60085 (847)377-3106 Email: kfox@lakecountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Joseph Rice Lake County State's Attorney's Office 18 N. County St. 5th Floor Waukegan, IL 60085 (847) 377-3050 Email: srice@lakecountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Beth Greenberg Prager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Denise Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Joseph Rice (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant David Wathen Chief
Defendant John Doe Officers Defendant Supervisors

represented by Beth Greenberg Prager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Denise Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Joseph Rice (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/04/2017 12/04/2017 12/05/2017
12/05/2017

# Docket Text
1 COMPLAINT At Law filed by Daniel Hardeman; Jury Demand. Filing fee $ 400, receipt number 0752-13862199. (Attachments: # 1 Civil Cover Sheet)(Popp, Matthew) (Entered: 12/04/2017)
CASE ASSIGNED to the Honorable Amy J. St. Eve. Designated as Magistrate Judge the Honorable Young B. Kim. (nsf, ) (Entered: 12/04/2017)
2 MINUTE entry before the Honorable Amy J. St. Eve: Initial status hearing set for 1/16/18 at 8:30 a.m. in courtroom 1241. Parties shall refer to Judge St. Eve's web page at www.ilnd.uscourts.gov and file a Rule 26(f) Initial Status Report by 1/10/18 as set forth in the Rule 26(f) Report procedure. If the defendant has not been served as of 1/10/18, the Court will continue the filing date for the Rule 26(f) Report until the defendant is served. Mailed notice (kef, ) (Entered: 12/05/2017)
3 NOTICE TO THE PARTIES - The Court is participating in the Mandatory Initial Discovery Pilot (MIDP). The key features and deadlines are set forth in the attached Notice which includes the MIDP Standing Order. Also attached is a checklist for use by the parties. In cases subject to the pilot, all parties must respond to the

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mandatory initial discovery requests set forth in the Standing Order before initiating any further discovery in this case. Please note: The discovery obligations in the Standing Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the attached documents (Notice to Parties and the Standing Order) on each new party when the Complaint, Counterclaim, Crossclaim, or Third-Party Complaint is served. (jk, ) (Entered: 12/05/2017)
4 ATTORNEY Appearance for Plaintiff Daniel Hardeman by Kevin William O'Connor (O'Connor, Kevin) (Entered: 12/06/2017)
5 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 1/16/2018 and continued to 2/26/2018 at 08:30 AM.Mailed notice (kef, ) (Entered: 01/16/2018)
6 ATTORNEY Appearance for Defendant County of Lake by Beth Greenberg Prager (Prager, Beth) (Entered: 02/22/2018)
7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant County of Lake (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Prager, Beth) (Entered: 02/22/2018)
8 NOTICE of Motion by Beth Greenberg Prager for presentment of Motion to Dismiss for Failure to State a Claim 7 before Honorable Amy J. St. Eve on 2/26/2018 at 08:30 AM. (Prager, Beth) (Entered: 02/22/2018)
9 ATTORNEY Appearance for Defendant County of Lake by Karen Denise Fox (Fox, Karen) (Entered: 02/22/2018)
10 MOTION to Defer Responsive Pleading Deadline (MIDP) , filed by Defendant County of Lake. (Fox, Karen) (Entered: 02/22/2018)
11 NOTICE of Motion by Karen Denise Fox for presentment of Motion to Defer Responsive Pleading Deadline 10 before Honorable Amy J. St. Eve on 2/26/2018 at 08:30 AM. (Fox, Karen) (Entered: 02/22/2018)
12 MINUTE entry before the Honorable Amy J. St. Eve: Defendants' motion to defer answer 10 is granted. ORDER of Extension of Time to Answer or Otherwise Respond - The Court has determined that good cause exists to defer the filing of an answer, counterclaim, crossclaim or reply while it considers the pending motion to dismiss. If the motion is denied, the Court will designate a time for filing answers, counterclaims, crossclaims, and replies. If no time is designated, Rule 12(a)(4) will apply. The obligation to file Mandatory Initial Discovery (MID) responses as set forth in

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Standing Order 17-XX shall be measured from that date.Mailed notice (kef, ) (Entered: 02/23/2018)

13 ATTORNEY Appearance for Defendant County of Lake by Stephen Joseph Rice (Rice, Stephen) (Entered: 02/23/2018)

14 MINUTE entry before the Honorable Amy J. St. Eve:Status hearing held on 2/26/2018 and continued to 6/7/2018 at 08:30 AM. Defendant's motion to dismiss 7 is entered. Response by 3/26/18. Reply by 4/9/18. Mailed notice (kef, ) (Entered: 02/26/2018)

15 RESPONSE by Tapanga Hardeman to MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant County of Lake 7 (O'Connor, Kevin) (Entered: 03/26/2018)

16 REPLY by County of Lake, Mark Curran, David Wathen to response to motion 15 (Rice, Stephen) (Entered: 04/09/2018)

17 EXECUTIVE COMMITTEE ORDER:It appearing that cases previously assigned to the Honorable Amy J. St. Eve requires reassignment; therefore It is hereby ordered that the cases on the attached list are to be reassigned to the other judges of this Court as indicated, pursuant to Local Rule 40.1(f) within the guidelines of IOP 16. Case reassigned to the Honorable Sharon Johnson Coleman for all further proceedings. Honorable Amy J. St. Eve no longer assigned to the case. Signed by Executive Committee on 5/23/18.(rp, ) (Entered: 05/23/2018)

MEMORANDUM Opinion and Order: Defendant's Motion to

18

Dismiss Plaintiff's Complaint 7 is denied in part and granted in part.

Signed by the Honorable Sharon Johnson Coleman on 7/23/2018.

Mailed notice. (ym, ) (Entered: 07/23/2018)

19 NOTICE of appeal by County of Lake, Mark Curran, John Doe Officers, Office of the Lake County Sheriff, Supervisors regarding

08/03/2018 08/03/2018

orders 18 Filing fee $ 505, receipt number 0752-14776019. Receipt number: n (Prager, Beth) (Entered: 08/03/2018)
20 DOCKETING Statement by County of Lake, Mark Curran, John Doe Officers, Office of the Lake County Sheriff, Supervisors, David Wathen regarding notice of appeal 19 (Prager, Beth) (Entered: 08/03/2018)
21 SEVENTH CIRCUIT transcript information sheet by County of Lake, Mark Curran, John Doe Officers, Office of the Lake County Sheriff, Supervisors, David Wathen (Prager, Beth) (Entered: 08/03/2018)

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22 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 19 (jjr, ) (Entered: 08/03/2018)
23 TRANSMITTED to the 7th Circuit the short record on notice of appeal 19 . Notified counsel. (jjr, ) (Entered: 08/03/2018)
24 SEVENTH CIRCUIT transcript information sheet by County of Lake, Mark Curran, John Doe Officers, Office of the Lake County Sheriff, Supervisors, David Wathen (Prager, Beth) (Entered: 08/03/2018)
25 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 19 ; USCA Case No. 18-2672. (jk, ) (Entered: 08/03/2018)
26 CERTIFIED copy of order dated 8/14/18 from the USCA Seventh Circuit regarding notice of appeal 19 ; Appellate case no. : 18-2672: IT IS ORDERED that this appeal is DISMISSED, in accordance with Federal Rule of Appellate Procedure 42(b), ONLY as to appellees Lake County Illinois and Lake County Sheriff's Office. This appeal remains active as to the other parties. IT IS FURTHER ORDERED that briefing will proceed as follows: 1. The brief and required short appendix of the appellants are due by September 14, 2018. 2. The brief of the appellee is due by October 15, 2018. 3. The reply brief of the appellants, if any, is due by October 29, 2018. (tt, ) (Entered: 08/14/2018)
27 NOTICE OF ISSUANCE OF MANDATE ONLY AS TO APPELLANT , LAKE COUNTY SHERIFF'S OFFICE ; APPELLANT , LAKE COUNTY, ILLINOISof USCA dated 8/22/18 regarding notice of appeal 19 ;USCA No.18-2672 ; Record to be returned at a later date. (tt, ) (Entered: 08/22/2018)
28 CERTIFIED copy of order dated 8/14/18 from the USCA Seventh Circuit regarding notice of appeal 19 ; Appellate case no. : 18-2672: IT IS ORDERED that this appeal is DISMISSED, in accordance with Federal Rule of Appellate Procedure 42(b), ONLY as to appellees Lake County Illinois and Lake County Sheriff's Office. This appeal remains active as to the other parties. IT IS FURTHER ORDERED that briefing will proceed as follows: 1. The brief and required short appendix of the appellants are due by September 14, 2018. 2. The brief of the appellee is due by October 15, 2018. (tt, ) (Entered: 08/22/2018)
29 ORDER: Circuit Rule 33 - Briefing dated 8/22/18 from the USCA Seventh Circuit regarding notice of appeal 19 ; Appellate case no. : 18-2672: Pursuant to Circuit Rule 33, briefing in this appeal shall proceed as follows: 1. The brief and required short appendix of the

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appellants are due by October 10, 2018. 2. The brief of the appellee is due by November 13, 2018. 3. The reply brief of the appellants, if any, is due by November 27, 2018. (tt, ) (Entered: 08/22/2018)
30 MANDATE of USCA dated 9/3/2019 regarding notice of appeal 19 ; USCA No.18-2672 ; No record to be returned. (mma, ) (Entered: 09/03/2019)
31 CERTIFIED COPY OF USCA FINAL JUDGMENT dated 8/12/2019 regarding notice of appeal 19 ; USCA No. 18-2672. The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. (mma, ) (Entered: 09/03/2019)
32 MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing is set for 9/30/2019 at 9:00 AM. Mailed notice. (ym, ) (Entered: 09/11/2019)
33 MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing held on 9/30/2019. Defendant to file an answer by 10/15/2019. Plaintiff stated in court that he will file a motion for class certification by 10/30/2019. Defendant's response to the motion for class certification to be filed by 12/2/2019. Reply to be filed by 12/16/2019. Once the matter is fully briefed, the Court shall take it under advisement. Mailed notice. (ym, ) (Entered: 09/30/2019)
34 ANSWER to Complaint with Jury Demand by County of Lake, Mark Curran, David Wathen(Rice, Stephen) (Entered: 10/15/2019)
35 MOTION by Plaintiffs Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams for extension of time to file Plaintiffs' Motion for Class Certification (O'Connor, Kevin) (Entered: 10/28/2019)
36 NOTICE of Motion by Kevin William O'Connor for presentment of motion for extension of time to file 35 before Honorable Sharon Johnson Coleman on 11/5/2019 at 08:45 AM. (O'Connor, Kevin) (Entered: 10/28/2019)
37 ATTORNEY Appearance for Plaintiffs Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams by Kevin William O'Connor (O'Connor, Kevin) (Entered: 11/04/2019)
38 ATTORNEY Appearance for Plaintiffs Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams by Ashley Meghan Murray (Murray, Ashley) (Entered: 11/04/2019)

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39 MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiffs' agreed motion for extension of time to file plaintiffs' motion for class certification 35 is granted. Plaintiffs to file their motion for class certification by 11/8/2019. Defendants to file their response by 12/12/2019. Reply to be filed by 12/26/2019. No appearance necessary on 11/5/2019. Mailed notice. (ym, ) (Entered: 11/04/2019)
40 MOTION by Plaintiffs Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams to certify class and Memorandum of Law In Support Responses due by 12/12/2019 (Attachments: # 1 Exhibit A-C)(O'Connor, Kevin) (Entered: 11/08/2019)
41 NOTICE of Motion by Kevin William O'Connor for presentment of motion to certify class, 40 before Honorable Sharon Johnson Coleman on 1/7/2020 at 08:45 AM. (O'Connor, Kevin) (Entered: 11/08/2019)
42 MOTION by Defendants County of Lake, Mark Curran, Office of the Lake County Sheriff, David Wathen for leave to file excess pages - Unopposed (Rice, Stephen) (Entered: 12/12/2019)
43 NOTICE of Motion by Stephen Joseph Rice for presentment of motion for leave to file excess pages 42 before Honorable Sharon Johnson Coleman on 12/18/2019 at 08:45 AM. (Rice, Stephen) (Entered: 12/12/2019)
44 RESPONSE by County of Lake, Mark Curran, Office of the Lake County Sheriff, David Wathen to MOTION by Plaintiffs Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams to certify class and Memorandum of Law In Support 40 (Attachments: # 1 Affidavit Affidavits in Support of Response)(Rice, Stephen) (Entered: 12/12/2019)
45 SUPPLEMENT to response to motion, 44 - Czaplicki affidavit w signed copy of it (Rice, Stephen) (Entered: 12/13/2019)
46 MINUTE entry before the Honorable Sharon Johnson Coleman: Defendants' unopposed motion to file a brief in excess of 15 pages 42 is granted. Plaintiff is also given leave to file reply brief in excess of 15 pages. No appearance is necessary on 12/18/2019. Mailed notice. (ym, ) (Entered: 12/13/2019)
47 REPLY by Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams to response to motion, 44 (O'Connor, Kevin) (Entered: 12/26/2019)

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48 MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiffs' motion to certify certify class 40 is fully briefed, the Court shall take it under advisement. No appearance necessary on 1/7/2020. Mailed notice. (ym, ) (Entered: 01/06/2020)
49 ORDER Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (pj, ) (Entered: 03/17/2020)
50 ORDER Seconded Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/23/2020: Mailed notice. (docket7, ) (Entered: 03/31/2020)
51 ORDER CORRECTED ENTRY: ORDER Seconded Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance. Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020: Mailed notice...Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020:Mailed notice(docket7, ) (Entered: 04/03/2020)
52 ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket3, ) (Entered: 04/27/2020)
53 STATUS Report Joint by Tapanga Hardeman, Lavonte Murel, Lewis Myles, Quenta Lamar Washington, Daniel Williams (Popp, Matthew) (Entered: 05/15/2020)

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54 ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For nonemergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket3, ) (Entered: 05/26/2020)

55 ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk2, Docket) (Entered: 07/10/2020)

MEMORANDUM Opinion and Order: This Court grants Plaintiff's

56

motion for class certification 40 . The Court certifies the following

sub-classes: Subclass A: all persons present in the Lake County

Adult Correctional Facility between November 8, 2017, and

November 10, 2017, being held as pretrial detainees. Subclass B: all

persons present in the Lake County Adult Correctional Facility

between November 8, 2017, and November 10, 2017, as post-

conviction inmates. Signed by the Honorable Sharon Johnson

Coleman on 11/17/2020. Mailed notice. (ym, ) (Entered: 11/17/2020)

57 MINUTE entry before the Honorable Sharon Johnson Coleman: Telephone status hearing is set for 1/4/2021 at 9:30 AM. The call-in number is (877)336-1829 and the access code is 5205245. Members of the public and media will be able to call in to listen to this hearing. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (ym, ) (Entered: 12/17/2020)

58 MINUTE entry before the Honorable Sharon Johnson Coleman: Telephone status hearing held on 1/4/2021. Plaintiff to issue class discovery by 1/11/2021. Parties are to submit a proposed agreed protective order to the Court's proposed order email. Case is referred to Magistrate Judge Kim for discovery supervision and settlement. Telephone status hearing is set for 2/23/2021 at 9:30 AM. The call-in

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number is (877)336-1829 and the access code is 5205245. Members of the public and media will be able to call in to listen to this hearing. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (ym, ) (Entered: 01/04/2021)
59 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Young B. Kim for the purpose of holding proceedings related to: discovery supervision and settlement conference. Mailed notice. (ym, ) (Entered: 01/04/2021)
60 MINUTE entry before the Honorable Young B. Kim: A status hearing is scheduled for tomorrow at 11:00 a.m. by phone. The conference call number for the status hearing is (877) 336-1839 and the passcode is 4333213. Mailed notice (ma,) (Entered: 01/05/2021)
61 MINUTE entry before the Honorable Young B. Kim: Status hearing held by phone and continued to January 20, 2021, at 11:00 a.m. by phone. Parties are to use the same call- in information. Parties reported that they have not yet conducted any discovery. They also reported that the first step to move this case forward should be for Defendants to produce a complete list of class members and their last known contact information. The court orders Defendants to produce this class list with contact information to the Class by no later than January 19, 2021. (In light of this order, the Class is not required to serve anything by January 11, 2021.) If production of the class list is not possible by the deadline set here, Defendants should be prepared to explain at the next status hearing the specific collection process they must follow and the expected time to complete the process. Parties are to also report at the next status hearing whether they wish to explore settlement options before moving forward with formal written discovery. Mailed notice (ma,) (Entered: 01/06/2021)
62 MINUTE entry before the Honorable Young B. Kim: Status hearing held by phone and continued to February 3, 2021, at 11:00 a.m. by phone. Parties are to use the same call-in information. Defendants reported that they have identified 577 class members. Defendants also reported that they have produced the names and the last known addresses of the class members to class counsel. The class confirmed this report. The class is directed to share with Defendants, with a copy to the court by email, its draft notice to be mailed to the class members by January 29, 2021. Parties are expected to discuss the

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draft notice at the next status hearing. Mailed notice (Kim, Young) (Entered: 01/20/2021)
63 MINUTE entry before the Honorable Young B. Kim: Status hearing held by phone. Parties are ordered to exchange Rule 26(a)(1) disclosures by February 24, 2021. Parties are also ordered to file a status report by March 10, 2021, identifying the individuals that they wish to depose before proceeding with formal written discovery. The court will issue a follow-up order once it reviews the status report. Class is ordered to mail out the class notices by March 10, 2021. Mailed notice (ma,) (Entered: 02/03/2021)
64 MINUTE entry before the Honorable Sharon Johnson Coleman: Telephone status hearing held on 2/23/2021 and continued to 6/23/2021 at 9:30 AM. The call-in number is (877)336-1829 and the access code is 5205245. Members of the public and media will be able to call in to listen to this hearing. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (ym, ) (Entered: 02/23/2021)
65 CERTIFICATE of Service Plaintiffs' Initial Rule 26(a) Disclosures to Defendants by Kevin William O'Connor on behalf of Tapanga Hardeman (O'Connor, Kevin) (Entered: 02/24/2021)
66 STATUS Report by Tapanga Hardeman (Popp, Matthew) (Entered: 03/10/2021)
67 MINUTE entry before the Honorable Young B. Kim: In light of the joint status report, (R. 66), the parties are to comply with the following: (1) Plaintiffs are ordered to file a motion, by March 26, 2021, for leave to depose Mark Curran and John Idelberg and explain the general nature of the information they seek to discover through their depositions and the relevance of such information to this matter, and Defendants are to file a response thereto by April 9, 2021; (2) the parties are to schedule and confirm the dates and times for the depositions of the nine individuals identified in Plaintiffs' Rule 26(a)(1) disclosures (to take place between April 2 and May 14, 2021) by March 19, 2021 (if any of these individuals are in custody, Defendants are granted leave to depose them in custody); (3) the parties are to schedule and confirm the dates and times for the depositions of the other four individuals identified in Defendants' Rule 26(a)(1) disclosures (to take place between May 17 and June

11, 2021) by March 19, 2021; and (4) the parties are to file a joint status report by March 22, 2021, advising the court of the confirmed schedule for the 13 depositions noted herein. Mailed notice (ma,) (Entered: 03/10/2021)

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 Case: 1:17-cv-08729 Document #: 1 Filed: 12/04/17 Page 1 of 20 PageID #:1

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

TAPANGA HARDEMAN, DANIEL WILLIAMS, LEWIS MYLES, QUENTA LAMAR WASHINGTON, and LAVONTE MUREL,

Plaintiffs, v.

No. :

COUNTY OF LAKE, OFFICE OF THE LAKE COUNTY SHERIFF, SHERIFF MARK CURRAN, CHIEF DAVID WATHEN, and JOHN DOE OFFICERS and SUPERVISORS,

Honorable:

Defendants.

COMPLAINT AT LAW

NOW COME the Plaintiffs, TAPANGA HARDEMAN, DANIEL WILLIAMS, LEWIS

MYLES, QUENTA LAMAR WASHINGTON, and LAVONTE MUREL, by and through their

attorneys, O’CONNOR LAW FIRM, LTD., and alleges the following against the Defendants,

COUNTY OF LAKE, OFFICE OF THE LAKE COUNTY SHERIFF (hereinafter referred to as

“LAKE COUNTY SHERIFF”), SHERIFF MARK CURRAN, CHIEF DAVID WATHEN, and

JOHN DOE OFFICERS and SUPERVISORS, for the reasons set forth below:

JURISDICTION

1.

The jurisdiction of the court is involved pursuant to the Civil Rights Act of 1871,

42 U.S.C. § 1983; the Judicial Code, 28 U.S.C. § 1331, § 1343, and (b); the Constitution of

the United States; and this Court’s supplementary jurisdiction powers pursuant to 28 U.S.C. §

1367.

Case: 1:17-cv-08729 Document #: 1 Filed: 12/04/17 Page 2 of 20 PageID #:1

2.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part

of the events or omissions giving rise to Plaintiffs’ claims occurred in the Northern District of

Illinois.

3.

One or more of the Class of Plaintiffs have exhausted administrative remedies

reasonably available to them prior to bringing their 42 U.S.C. § 1983 civil rights claim in

accordance with the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)(a).

PARTIES

Plaintiffs

4.

Plaintiff, TAPANGA HARDEMAN, was at all relevant times, a resident of the

State of Illinois and of the United States of America, and was an inmate at the Lake County

Adult Correctional Facility in the City of Waukegan, County of Lake, State of Illinois.

5.

Plaintiff, DANIEL WILLIAMS, was at all relevant times, a resident of the State of

Illinois and of the United States of America, and was an inmate at the Lake County Adult

Correctional Facility in the City of Waukegan, County of Lake, State of Illinois.

6.

Plaintiff, QUENTA LAMAR WASHINGTON, was at all relevant times, a resident

of the State of Illinois and of the United States of America, and was an inmate at the Lake

County Adult Correctional Facility in the City of Waukegan, County of Lake, State of Illinois.

7.

Plaintiff, LEWIS MYLES, was at all relevant times, a resident of the State of

Illinois and of the United States of America, and was an inmate at the Lake County Adult

Correctional Facility in the City of Waukegan, County of Lake, State of Illinois.

8.

Plaintiff, LAVONTE MUREL, was at all relevant times, a resident of the State of

Illinois and of the United States of America, and was an inmate at the Lake County Adult

Correctional Facility in the City of Waukegan, County of Lake, State of Illinois.

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Defendants

9.

Defendant, LAKE COUNTY, is a governmental entity within the State of Illinois

which funds and operates the Lake County Jail and is a necessary party and is ultimately

responsible for Judgment or Settlement.

10. Defendant, SHERIFF MARK CURRAN (hereinafter referred to as “CURRAN”)

was at all times relevant, the duly elected sheriff of Lake County and the chief administrator of

the Lake County Jail. At all times relevant, he was acting under color of law and in the course

and scope of his employment as the agent, servant and an official policy maker for the

Defendant, LAKE COUNTY on issues relating to care of prisoners in Lake County Jail and the

policies, procedures and customs, as well as the acts and omissions, challenged by this suit and

as the County’s chief law enforcement officer. Defendant CURRAN was the commanding

officer of all Lake County sheriff’s deputies, correctional officers, and jail employees and he

was responsible for their training, supervision and conduct. He is being sued in his official and

individual capacities.

11. Defendant, CHIEF DAVID WATHEN (hereinafter WATHEN), was at all relevant

times, the Chief of Corrections in the Lake County Sherriff’s Office. At all times relevant, he

was acting under color of law and in the course and scope of his employment as the agent,

servant and an official policy maker for the Defendant, LAKE COUNTY, on issues relating to

the care of prisoners in Lake County Jail and the policies, procedures and customs, as well as

the acts and omissions, challenges by this suit and as the Sheriff’s Chief of Corrections. He was

one of the commanding officer of all Lake County correctional officers and jail employees, and

he was responsible for their training, supervision, and conduct. He is being sued in his official

and individual capacities.

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12. Defendants, LAKE COUNTY and CURRAN, are responsible for the establishment and implementation of the policies, procedures, practices, and customs, as well as the acts and omissions charged in this Complaint.
13. Defendant, LAKE COUNTY, is also responsible for ensuring that all of its facilities, including the Lake County Jail, are in compliance with federal and state law, department or agency policies, rules and regulations, and related standards of care.
14. The LAKE COUNTY SHERIFF is a duly incorporated municipal corporation in the State of Illinois and at all times relevant, Defendant, the LAKE COUNTY SHERIFF, owned, operated and maintained the Lake County Jail for purposes of housing inmates and pretrial detainees, and, as such, was acting under the color of State Law.
15. JOHN DOE OFFICERS AND SUPERVISORS were other correctional officers and supervisors at the Lake County Jail during the events complained of and contributed to injuries suffered by the Plaintiffs, through their actions or omissions. JOHN DOE OFFICERS and SUPERVISORS are sued in their individual capacities. Plaintiff will ask leave of the Court to amend this Complaint to insert these Defendants’ true names and capacity when same have been ascertained and will further ask leave to join said Defendants in these proceedings.
CLASS CERTIFICATION ALLEGATION 16. All Plaintiffs bring this action on their own behalf and pursuant, to Rules 23(a), and 23(b)(1) of the Federal Rules of Civil Procedure, on behalf of a class of affected inmates in the Lake County Adult Correctional Facility located at 20 S County Street, in the City of Waukegan, County of Lake, State of Illinois.
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17. Numerosity The class is so numerous that joinder of all members is impracticable. The
aforementioned allegations have affected all inmates in the Lake County Adult Correctional Facility at the times alleged. At any time, the Lake County Adult Correctional Facility can maintain a capacity of 740 inmates. As such joinder of all members of the class is impracticable. 18. Commonality
There are questions of law and fact common to all members of the class. Such questions include, but are not limited to:
a. Intentionally shut off the water at Lake County Adult Correctional Facility; b. Failed or intentionally deprived class members the necessary amount of drinking
water; c. Failed or intentionally deprived class members from taking a shower; d. Failed or intentionally subjected class members to be in a cell while feces and urine
festered in the toilet for a prolonged period of time; e. Had inadequate policies and/or procedures in effect to ensure the safety, health and
well-being of the class members, when they shut the water off; f. Failed or intentionally caused class members to live in inhumanely and unsanitary
conditions; g. Failed or intentionally ignored to address class members requests for additional
water, and concerns of living in unsanitary conditions
19. Typicality The claims of the plaintiffs are typical of those of the plaintiff class. Each of the
named plaintiffs, as well as the class members, were subject to the water being shutoff in the
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Lake County Adult Correctional Facility during the times alleged and suffered various and common injuries therefrom.
20. Adequacy Plaintiffs are capable of fairly and adequately protecting the interest of the plaintiff
class and will diligently serve as class representatives. Plaintiffs do not have any interests antagonistic to the class. Finally, plaintiffs are represented by counsel experienced in civil rights litigation.
21. Rule 23(b)(1) This action is maintainable as a class action pursuant to Federal Rules of Civil
Procedure 23(b)(1) because the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, which in turn would establish incompatible standards of conduct for the defendants. Additionally, the prosecution of separate actions by individual members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
GENERAL ALLEGATIONS and FACTUAL SUMMARY 22. On or around November 7, 2017, and at all times relevant, Plaintiffs, TAPANGA HARDEMAN, DANIEL WILLIAMS, QUENTA LAMAR WASHINGTON, LEWIS MYLES, and LAVONTE MUREL, were inmates at the Lake County Adult Correctional Facility in the City of Waukegan, County of Lake, State of Illinois. 23. On or about November 7, 2017, Defendants, COUNTY OF LAKE, LAKE COUNTY SHERIFF, CURRAN, WATHEN, JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, turned off the water at the Lake County Adult Correctional
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Facility. Defendants never informed the Lake County Jail inmates, including but not limited to the Plaintiffs, that the water was going to be turned off.
24. On or about November 7, 2017, Defendants, COUNTY OF LAKE, LAKE COUNTY SHERIFF, CURRAN, WATHEN, JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, individually and/or by and through their agents, servants, and/or employees, implemented a policy limiting all Lake County Jail inmates, including but not limited to the Plaintiffs, to five water bottles per day for all personal needs.
25. From on or about November 7, 2017 through November 10, 2017, said policy of the Defendants, COUNTY OF LAKE, LAKE COUNTY SHERIFF, CURRAN, WATHEN, JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, individually and/or by and through their agents, servants, and/or employees, required all Lake County Jail inmates, including but not limited to the Plaintiffs, to use the water bottles for everything, including but not limited to, drinking, cooking, brushing teeth, washing hands and face, and to take with medication. Lake County Jail correctional officers, and employees, denied inmate requests for additional water bottles, and in some instances placed inmates on lockdown for repeatedly requesting additional water bottles. As a result, inmates were either unable to take their medication, or were deprived of the necessary amount of drinking water to stay hydrated while taking medication.
26. On or about November 7, 2017, Defendants, COUNTY OF LAKE, LAKE COUNTY SHERIFF, CURRAN, WATHEN, JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, individually and/or by and through their agents, servants, and/or employees, implemented a policy prohibiting inmates, including but not limited to the Plaintiffs, from flushing the toilets in their cells unless feces were present, and were not allowed
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to flush their toilets overnight. Furthermore, each “Pod” had a barrel of water, and said policy required inmates, including but not limited to the Plaintiffs, to use the water for bathing, cleaning their cells, and flushing their toilets. Despite using said water to flush toilets when feces were present, Lake County Jail inmates, including but not limited to Plaintiffs, attempts to flush were unsuccessful and feces and urine remained in the toilets. Thus, Lake County Jail inmates, including but not limited Plaintiffs, were required to be situated in their cells with urine and feces festering for prolonged period of times. The presence of urine and feces festering in toilets produced a distinct, putrid aroma that caused inmates to become sick, sleep deprived, and agitated. The presence of urine and feces also attracted insects.
27. Furthermore, Lake County Jail inmates, were required to share water from the barrel of water in their “Pods” for bathing, showering, and personal hygiene matters. Moreover, Lake County Jail inmates, including but not limited to the Plaintiffs, were required to use the same water to clean their cells.
28. From on or about November 7, 2017 through November 10, 2017, due to the Defendants’ conduct, Lake County Jail inmates, including but not limited to the Plaintiffs, were forced to live inhumanely, unsanitary conditions, and were deprived of the necessary amount of drinking water to keep them hydrated, and to satisfy basic health and medical needs. As a result, Lake County Jail inmates, including but not limited to the Plaintiffs, suffered from a variety of ailments, including but not limited to, dehydration, migraine headaches, sickness, dizziness, constipation, and general malaise.
29. On the evening of November 10, 2017, Defendants, COUNTY OF LAKE, LAKE COUNTY SHERIFF, CURRAN, WATHEN, JOHN DOE LAKE COUNTY SHERIFF
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OFFICERS AND SUPERVISORS, individually and/or by and through their agents, servants, and/or employees, turned the water back on at the Lake County Adult Correctional Facility.
COUNT I Tapanga Hardeman Against All Defendants for Violations of the Eighth and
Fourteenth Amendment Rights 30. Plaintiff, TAPANGA HARDEMAN, restates and re-alleges by reference paragraphs 1 through 29 as though fully set forth herein as Paragraph 30 of Count I of this complaint. 31. From November 7, 2017 until and including November 10, 2017, and at all times material, the Defendant, the LAKE COUNTY SHERIFF, owned, operated and maintained the Lake County Jail for purposes of housing inmates and pretrial detainees, and, as such, was acting under the color of State Law. 32. From November 7, 2017 until and including November 10, 2017, Plaintiff, TAPANGA HARDEMAN, was a pretrial detainee in the care, custody and control of the LAKE COUNTY SHERIFF. 33. From November 7, 2017, until and including November 10, 2017, Plaintiff, TAPANGA HARDEMAN, was under the actual care, custody and control of the Defendant, LAKE COUNTY SHERIFF and the Lake County Jail, who therefore became responsible for Plaintiff, TAPANGA HARDEMAN’S health, safety and overall welfare. 34. From November 7, 2017, until and including November 10, 2017, notwithstanding the duties and obligations described above, the Defendants, LAKE COUNTY SHERIFF, LAKE COUNTY, CURRAN, WATHEN and JOHN DOE LAKE COUNTY SHERIFF OFFICERS, by and through its agents and employees, committed one or more of the following acts of deliberate and utter indifference:
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a. Intentionally shut off the water at Lake County Adult Correctional Facility; b. Failed or intentionally deprived Plaintiff, TAPANGA HARDEMAN, the necessary
amount of drinking water; c. Failed or intentionally deprived Plaintiff, TAPNGA HARDEMAN, from taking a
shower; d. Failed or intentionally subjected Plaintiff, TAPANGA HARDEMAN, to be in a
cell while feces and urine festered in the toilet for a prolonged period of time;
e. Had inadequate policies and/or procedures in effect to ensure the safety, health and well-being of Plaintiff, TAPANGA HARDEMAN, when they shut the water off;
f. Failed or intentionally caused Plaintiff, TAPANGA HARDEMAN, to live in inhumanely and unsanitary conditions;
g. Failed or intentionally ignored to address Plaintiff, TAPNGA HARDEMAN’S requests for additional water, and concerns of living in unsanitary conditions;
35. As a direct and proximate result of one or more of the foregoing wrongful acts and omissions, Plaintiff, TAPANGA HARDEMAN, was deprived of rights, privileges and immunities guaranteed by her Eighth and Fourteenth Amendments to the United States Constitution, namely she was subjected to inhumanely and unsanitary living conditions and as result suffered injuries.
36. Defendants knew or should have known that shutting off the water at the Lake County Adult Correctional Facility, and limiting the Plaintiff, TAPANGA HARDEMAN, to five water bottles per day for all purposes, would result in her becoming sick or otherwise general malaise. By failing to act in the face of an obvious risk, the Defendants’ failure to take adequate precautions to ensure that Plaintiff, TAPANGA HARDEMAN, had sufficient water for all purposes, was the direct and proximate cause of her injuries.
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WHEREFORE, Plaintiffs demand damages, jointly and severally, against OFFICE OF THE LAKE COUNTY SHERIFF, SHERIFF MARK CURRAN, LAKE COUNTY JAIL, CHIEF DAVID WATHEN AND JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, and for such other and further relief as this Court deems equitable and just.
COUNT II Daniel Williams Against All Defendants for Violations of the Eighth and Fourteenth
Amendment Rights
37. Plaintiff, DANIEL WILLIAMS, restates and re-alleges by reference paragraphs 1 through 29 as though fully set forth herein as Paragraph 37 of Count II of this complaint.
38. From November 7, 2017 until and including November 10, 2017, and at all times material, the Defendant, the LAKE COUNTY SHERIFF, owned, operated and maintained the Lake County Jail for purposes of housing inmates and pretrial detainees, and, as such, was acting under the color of State Law.
39. From November 7, 2017 until and including November 10, 2017, Plaintiff, DANIEL WILLIAMS, was a pretrial detainee in the care, custody and control of the LAKE COUNTY SHERIFF.
40. From November 7, 2017, until and including November 10, 2017, Plaintiff, DANIEL WILLIAMS, was under the actual care, custody and control of the Defendant, LAKE COUNTY SHERIFF and Lake County Jail, who therefore became responsible for Plaintiff, DANIEL WILLIAMS’ health, safety and overall welfare.
41. From November 7, 2017, until and including November 10, 2017, notwithstanding the duties and obligations described above, the Defendants, LAKE COUNTY SHERIFF, LAKE COUNTY, CURRAN, WATHEN and JOHN DOE LAKE COUNTY SHERIFF OFFICERS,
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by and through its agents and employees, committed one or more of the following acts of deliberate and utter indifference:
a. Intentionally shut off the water at Lake County Adult Correctional Facility; b. Failed or intentionally deprived Plaintiff, DANIEL WILLIAMS, the necessary
amount of drinking water; c. Failed or intentionally deprived Plaintiff, DANIEL WILLIAMS, from taking a
shower; d. Failed or intentionally subjected Plaintiff, DANIEL WILLIAMS, to be in a cell
while feces and urine festered in the toilet for a prolonged period of time;
e. Had inadequate policies and/or procedures in effect to ensure the safety, health and well-being of Plaintiff, DANIEL WILLIAMS, when they shut the water off;
f. Failed or intentionally caused Plaintiff, DANIEL WILLIAMS, to live in inhumanely and unsanitary conditions;
g. Failed or intentionally ignored the Plaintiff, DANIEL WILLIAMS’ requests for additional water, and concerns of living in unsanitary conditions;
42. As a direct and proximate result of one or more of the foregoing wrongful acts and omissions, Plaintiff, DANIEL WILLIAMS, was deprived of rights, privileges and immunities guaranteed by his Eighth and Fourteenth Amendments to the United States Constitution, namely he was subjected to inhumanely and unsanitary living conditions and as a result suffered injuries.
43. Defendants knew or should have known that shutting off the water at the Lake County Adult Correctional Facility, and limiting the Plaintiff, DANIEL WILLIAMS, to five water bottles per day for all purposes, would result in him becoming sick or experienced general malaise. By failing to act in the face of an obvious risk, the Defendants’ failure to take adequate
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precautions to ensure that Plaintiff, DANIEL WILLIAMS, had sufficient water for all purposes, was the direct and proximate cause of her injuries.
WHEREFORE, Plaintiffs demand damages, jointly and severally, against OFFICE OF THE LAKE COUNTY SHERIFF, SHERIFF MARK CURRAN, LAKE COUNTY JAIL, CHIEF DAVID WATHEN AND JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, and for such other and further relief as this Court deems equitable and just.
COUNT III Quenta Lamar Washington Against All Defendants for Violations of the Eighth and
Fourteenth Amendment Rights 44. Plaintiff, QUENTA LAMAR WASHINGTON, restates and re-alleges by reference paragraphs 1 through 29 as though fully set forth herein as Paragraph 44 of Count III of this complaint. 45. From November 7, 2017 until and including November 10, 2017, and at all times material, the Defendant, the LAKE COUNTY SHERIFF, owned, operated and maintained the Lake County Jail for purposes of housing inmates and pretrial detainees, and, as such, was acting under the color of State Law. 46. From November 7, 2017 until and including November 10, 2017, Plaintiff, QUENTA LAMAR WASHINGTON, was a pretrial detainee in the care, custody and control of the LAKE COUNTY SHERIFF. 47. From November 7, 2017, until and including November 10, 2017, Plaintiff, QUENTA LAMAR WASHINGTON, was under the actual care, custody and control of the Defendant, LAKE COUNTY SHERIFF and Lake County Jail, who therefore became responsible for Plaintiff, QUENTA LAMAR WASHINGTON’S health, safety and overall welfare.
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48. From November 7, 2017, until and including November 10, 2017, notwithstanding the duties and obligations described above, the Defendants, LAKE COUNTY SHERIFF, LAKE COUNTY, CURRAN, WATHEN and JOHN DOE LAKE COUNTY SHERIFF OFFICERS, by and through its agents and employees, committed one or more of the following acts of deliberate and utter indifference:
a. Intentionally shut off the water at Lake County Adult Correctional Facility; b. Failed or intentionally deprived Plaintiff, QUENTA LAMAR WASHINGTON, the
necessary amount of drinking water; c. Failed or intentionally deprived Plaintiff, QUENTA LAMAR WASHINGTON,
from taking a shower; d. Failed or intentionally subjected Plaintiff, QUENTA LAMAR WASHINGTON, to
be in a cell while feces and urine festered in the toilet for a prolonged period of time;
e. Had inadequate policies and/or procedures in effect to ensure the safety, health and well-being of Plaintiff, QUENTA LAMAR WASHINGTON, when they shut the water off;
f. Failed or intentionally caused Plaintiff, QUENTA LAMAR WASHINGTON, to live in inhumanely and unsanitary conditions;
g. Failed or intentionally ignored the Plaintiff, QUENTA LAMAR WASHINGTON’S requests for additional water, and concerns of living in unsanitary conditions;
49. As a direct and proximate result of one or more of the foregoing wrongful acts and omissions, Plaintiff, QUENTA LAMAR WASHINGTON, was deprived of rights, privileges and immunities guaranteed by his Eighth and Fourteenth Amendments to the United States Constitution, namely he was subjected to inhumanely and unsanitary living conditions and as a result suffered injuries.
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50. Defendants knew or should have known that shutting off the water at the Lake County Adult Correctional Facility, and limiting the Plaintiff, QUENTA LAMAR WASHINGTON, to five water bottles per day for all purposes, would result in her becoming sick or experience general malaise. By failing to act in the face of an obvious risk, the Defendants’ failure to take adequate precautions to ensure that Plaintiff, QUENTA LAMAR WASHINGTON, had sufficient water for all purposes, was the direct and proximate cause of her injuries.
WHEREFORE, Plaintiffs demand damages, jointly and severally, against OFFICE OF THE LAKE COUNTY SHERIFF, SHERIFF MARK CURRAN, LAKE COUNTY JAIL, CHIEF DAVID WATHEN AND JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, and for such other and further relief as this Court deems equitable and just.
COUNT IV Lewis Myles Against All Defendants for Violations of the Eighth and Fourteenth
Amendment Rights 51. Plaintiff, LEWIS MYLES, restates and re-alleges by reference paragraphs 1 through 29 as though fully set forth herein as Paragraph 51 of Count IV of this complaint. 52. From November 7, 2017 until and including November 10, 2017, and at all times material, the Defendant, the LAKE COUNTY SHERIFF, owned, operated and maintained the Lake County Jail for purposes of housing inmates and pretrial detainees, and, as such, was acting under the color of State Law. 53. From November 7, 2017 until and including November 10, 2017, Plaintiff, LEWIS MYLES, was a pretrial detainee in the care, custody and control of the LAKE COUNTY SHERIFF. 54. From November 7, 2017, until and including November 10, 2017, Plaintiff, LEWIS MYLES, was under the actual care, custody and control of the Defendant, LAKE COUNTY
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SHERIFF and Lake County Jail, who therefore became responsible for Plaintiff, LEWIS MYLES’ health, safety and overall welfare.
55. From November 7, 2017, until and including November 10, 2017, notwithstanding the duties and obligations described above, the Defendants, LAKE COUNTY SHERIFF, LAKE COUNTY, CURRAN, WATHEN and JOHN DOE LAKE COUNTY SHERIFF OFFICERS, by and through its agents and employees, committed one or more of the following acts of deliberate and utter indifference:
a. Intentionally shut off the water at Lake County Adult Correctional Facility; b. Failed or intentionally deprived Plaintiff, LEWIS MYLES, the necessary amount
of drinking water; c. Failed or intentionally deprived Plaintiff, LEWIS MYLES, from taking a shower; d. Failed or intentionally subjected Plaintiff, LEWIS MYLES, to be in a cell while
feces and urine festered in the toilet for a prolonged period of time;
e. Had inadequate policies and/or procedures in effect to ensure the safety, health and well-being of Plaintiff, LEWIS MYLES, when they shut the water off;
f. Failed or intentionally caused Plaintiff, LEWIS MYLES, to live in inhumanely and unsanitary conditions;
g. Failed or intentionally ignored the Plaintiff, LEWIS MYLES’ requests for additional water, and concerns of living in unsanitary conditions;
56. As a direct and proximate result of one or more of the foregoing wrongful acts and omissions, Plaintiff, LEWIS MYLES, was deprived of rights, privileges and immunities guaranteed by his Eighth and Fourteenth Amendments to the United States Constitution, namely he was subjected to inhumanely and unsanitary living conditions and as a result suffered injuries.
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57. Defendants knew or should have known that shutting off the water at the Lake County Adult Correctional Facility, and limiting the Plaintiff, LEWIS MYLES, to five water bottles per day for all purposes, would result in him becoming sick or experienced general malaise. By failing to act in the face of an obvious risk, the Defendants’ failure to take adequate precautions to ensure that Plaintiff, LEWIS MYLES, had sufficient water for all purposes, was the direct and proximate cause of his injuries.
WHEREFORE, Plaintiffs demand damages, jointly and severally, against OFFICE OF THE LAKE COUNTY SHERIFF, SHERIFF MARK CURRAN, LAKE COUNTY JAIL, CHIEF DAVID WATHEN AND JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, and for such other and further relief as this Court deems equitable and just.
COUNT V Lavonte Murel Against All Defendants for Violations of the Eighth and Fourteenth
Amendment Rights 58. Plaintiff, LAVONTE MUREL, restates and re-alleges by reference paragraphs 1 through 29 as though fully set forth herein as Paragraph 58 of Count V of this complaint. 59. From November 7, 2017 until and including November 10, 2017, and at all times material, the Defendant, the LAKE COUNTY SHERIFF, owned, operated and maintained the Lake County Jail for purposes of housing inmates and pretrial detainees, and, as such, was acting under the color of State Law. 60. From November 7, 2017 until and including November 10, 2017, Plaintiff, LAVONTE MUREL, was a pretrial detainee in the care, custody and control of the LAKE COUNTY SHERIFF. 61. From November 7, 2017, until and including November 10, 2017, Plaintiff, LAVONTE MUREL, was under the actual care, custody and control of the Defendant, LAKE COUNTY
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SHERIFF and Lake County Jail, who therefore became responsible for Plaintiff, LAVONTE MUREL’S health, safety and overall welfare.
62. From November 7, 2017, until and including November 10, 2017, notwithstanding the duties and obligations described above, the Defendants, LAKE COUNTY SHERIFF, LAKE COUNTY, CURRAN, WATHEN and JOHN DOE LAKE COUNTY SHERIFF OFFICERS, by and through its agents and employees, committed one or more of the following acts of deliberate and utter indifference:
a. Intentionally shut off the water at Lake County Adult Correctional Facility; b. Failed or intentionally deprived Plaintiff, LAVONTE MUREL, the necessary
amount of drinking water; c. Failed or intentionally deprived Plaintiff, LAVONTE MUREL, from taking a
shower; d. Failed or intentionally subjected Plaintiff, LAVONTE MUREL, to be in a cell
while feces and urine festered in the toilet for a prolonged period of time;
e. Had inadequate policies and/or procedures in effect to ensure the safety, health and well-being of Plaintiff, LAVONTE MUREL, when they shut the water off;
f. Failed or intentionally caused Plaintiff, LAVONTE MUREL, to live in inhumanely and unsanitary conditions;
g. Failed or intentionally ignored the Plaintiff, LAVONTE MUREL’S requests for additional water, and concerns of living in unsanitary conditions;
63. As a direct and proximate result of one or more of the foregoing wrongful acts and omissions, Plaintiff, LAVONTE MUREL, was deprived of rights, privileges and immunities guaranteed by his Eighth and Fourteenth Amendments to the United States Constitution, namely he was subjected to inhumanely and unsanitary living conditions and as a result suffered injuries.
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64. Defendants knew or should have known that shutting off the water at the Lake County Adult Correctional Facility, and limiting the Plaintiff, LAVONTE MUREL, to five water bottles per day for all purposes, would result in her becoming sick or experienced general malaise. By failing to act in the face of an obvious risk, the Defendants’ failure to take adequate precautions to ensure that Plaintiff, LAVONTE MUREL, had sufficient water for all purposes, was the direct and proximate cause of his injuries.
WHEREFORE, Plaintiffs demand compensatory damages, jointly and severally, against OFFICE OF THE LAKE COUNTY SHERIFF, SHERIFF MARK CURRAN, LAKE COUNTY JAIL, CHIEF DAVID WATHEN AND JOHN DOE LAKE COUNTY SHERIFF OFFICERS AND SUPERVISORS, and for such other and further relief as this Court deems equitable and just.
COUNT VI 745 ILCS 10/9-102 Indemnification Claim Against the County of Lake 65. Plaintiff adopts and re-alleges paragraphs 1 through 64 of counts I through V as paragraph 65 of count VI as though fully set forth herein. 66. In the event that any individual defendant is found liable for their actions performed in the course of their employment, the COUNTY OF LAKE, must indemnify such employee for this verdict pursuant to 745 ILCS 10/2-302. WHEREFORE, Plaintiffs demand that the COUNTY OF LAKE, pay for any compensatory judgment against individual defendants who acted in the course of their employment.
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JURY DEMAND PLAINTIFFS demand trial by jury.

O’CONNOR LAW FIRM, LTD. Kevin W. O’Connor Matthew M. Popp 19 S. LaSalle, Suite 1400 Chicago, IL 60603 Phone: 312-906-7609 Fax: 312-263-1913 firm@koconnorlaw.com

Respectfully Submitted,
/s/ Kevin W. O’Connor Attorney for Plaintiff

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 Case: 1:17-cv-08729 Document #: 18 Filed: 07/23/18 Page 1 of 6 PageID #:77

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

TAPANGA HARDEMAN, et al Plaintiff,
v.
COUNTY OF LAKE., et al.
Defendant.

)

)

)

Case No. 17-cv-8729

)

)

Judge Sharon Johnson Coleman

)

)

)

MEMORANDUM OPINION AND ORDER Plaintiffs, Tapanga Hardeman, Daniel Williams, Lewis Myles, Quenta Lamar Washington, and Lavonte Murel, on their own behalf and on behalf of all affected inmates (collectively, “Detainees”), bring this action against defendants, County of Lake, Office of the Lake County Sheriff, Sheriff Mark Curran, Chief David Wathen, and John Doe Officers and Supervisors (collectively, “Lake County Corrections”) for violating the Civil Rights Act of 1871, 42 U.S.C.§ 1983, pursuant to the Eighth and Fourteenth Amendment. Plaintiffs also seek indemnification from the County of Lake in the event that the individually named defendants are found liable for actions performed in the course of their employment. Lake County Corrections now move this Court to dismiss Detainees’ Complaint for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons set forth below, this Court grants Defendants’ motion in part and denies it in part.

Background The following facts are taken as true for the purpose of deciding this motion. Detainees,
were being held prior to trial at Lake County Adult Correctional Facility in Waukegan, County of Lake, IL. On or about November 7, 2017, when Detainees were housed at Lake County Correctional Adult Facility, Lake County Corrections turned off the water without advanced notice to the inmates. The water was not turned on again until November 10, 2017. While the water was

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turned off, Lake County provided inmates with five bottles of water per day to use for their personal needs, such as drinking, hygiene, cooking, and medical purposes. Detainees were provided a communal barrel of water located in the “pod” to use for bathing, cleaning their cells, and flushing the toilet. During this time, Detainees complained that they were deprived of sufficient water to take medication and to stay hydrated. While the water was shut off, Detainees also allege that they were restricted to flushing the toilets in their cells only when feces were present, and totally prohibited from flushing the commodes at night. Detainees contend that bodily excrement sat in toilets for prolonged periods, which attracted more vermin to the jail cells and caused a stench that made Detainees sick, agitated, and sleep-deprived.
Detainees filed this Complaint on December 4, 2017, alleging that Lake County Corrections violated their Eight and Fourteenth Amendment rights by intentionally depriving the detainees of adequate amounts of water for three days, which caused them to live in unsafe, inhumane and unsanitary conditions, and to suffer from various physical ailments.
Legal Standard A motion to dismiss pursuant to a Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint, not the merits of the allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679 – 80, 129 S. Ct. 1937 (2009). The issue to be determined by this Court is not whether the plaintiff should prevail, but whether under the plausibility standard, the plaintiff has alleged more than a possibility that the defendant actions were unlawful. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2012). When ruling on motion to dismiss, a court must review all well-plead facts in the light most favorable to the nonmoving party. Id. Discussion The underlying premise for all of Detainees’ claims is the water shut-down violated their Eighth and Fourteenth Amendment rights. Lake County Corrections moves to dismiss Detainees’
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entire Complaint arguing the insufficiency of the alleged constitutional violations. Specifically, they contend that the Eighth and Fourteenth Amendment claims cannot stand for two reasons: (1) the water shut-off was done for a legitimate governmental purpose, not punishment, and (2) the alleged deprivations were not of such a constitutional magnitude to show deliberate indifference. Additionally, Lake County Corrections contends that the suit is improper because it is entitled to qualified immunity as a government entity.
Section 1983 provides an avenue for vindicating federal rights impaired by state actors; however, it does not create a substantive right in and of itself. Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). A plaintiff must first identify the underlying constitutional right at issue in order to properly state a claim. Id. As jail officials have a duty to provide humane conditions of confinement to prisoners, Farmer v. Brennan, 511 U.S. 825, 832, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994), pretrial detainees are entitled to at least as much protection as the constitution provides convicted inmates when government actors treat them with deliberate indifference; however, courts have found that the Eighth Amendment does not apply to pretrial detainees. Board v. Farnham, 394 F. 3d 469, 477(7th Cir. 2005). The Supreme Court has determined that the proper framework for evaluating constitutional challenges to the conditions of pretrial detention is to examine whether those conditions amount to punishment since punishment prior to a determination of guilt violates due process under the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872 (1979). Accordingly, even though Courts apply the same Eighth Amendment deliberate indifference standard and look to the same case law in addressing claims, the protected right in prison condition complaints is properly derived from the Fourteenth Amendment for pre-trial detainees. Rice v. Corr. Med. Servs. (In re Estate of Rice), 675 F.3d 650, 664 (7th Cir. 2012).1
1 Detainees raise their Section 1983 claim under both the Eight and Fourteenth Amendment. Since the Eighth Amendment is not the proper avenue for a pretrial detainee to file a prison conditions
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In evaluating the constitutionality of the conditions or restrictions placed on pretrial detainees, courts look at whether the conditions alleged in the complaint amount to punishment. Board, 394 F.3d at 477. In order for a deliberate indifference claim to be constitutionally actionable under either the Eight or Fourteenth Amendment, a plaintiff has the burden of showing that: “(1) the harm to the plaintiff was objectively serious; and (2) the official was deliberately indifferent to her health or safety.” Id. at, 478; Farmer, 511 U.S. at 834-37.
Adverse conditions amount to unlawful punishment when they result in the denial of basic human needs, such as food, clothing, shelter, medical care, and reasonable safety. Farmer, 511 U.S. at 832; Rice, 675 F.3d at 664. An official acts with deliberate indifference “when he is subjectively aware of the condition or danger complained of, but consciously disregards it.” Rice, 675 F.3d at 665. Prisoners are protected from an official’s deliberate indifference to their current serious health issues as well as deliberate indifference to the unreasonable risk of serious damage to the prisoner’s future health. Henderson v. Sheahan, 196 F.3d 839, 846-47 (7th Cir. 1999). All inconveniences or uncomfortable conditions of confinement do not necessarily amount to a constitutional deprivation. Bell, 441 U.S. at 538. A single alleged prison condition or act alone may not constitute a constitutional deprivation; however, courts may aggregate conditions to find that, taken together, those conditions deprived a detainee of his or her basic human necessities. Budd v. Motley, 771 F.3d 840, 842-42 (7th Cir. 2013). If the alleged condition arises incident to a legitimate governmental punishment, such a condition is not presumed to have the requisite intent to punish that would make it unconstitutional. Hampton v. Fairman, Case No. 93 C 4076, 1995 U.S. Dist. LEXIS 3995, at *14 (N.D. Ill. Mar. 28, 1995)(Williams, J.).
Here, Detainees have alleged several things that they contend amount to a constitutional
grievance, that portion of the allegation is dismissed with prejudice. Smith v. Dart, 803 F.3d 304, 310 (7th Cir. 2015); Reed v. City of Chi., No. 01 C 7865, 2002 U.S. Dist. LEXIS 13375, at *4 (N.D. Ill. Mar. 12, 2002) (Moran, J.).
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violation, to include a lack of water and prolonged exposure to human excrement. Adverse Conditions While there is no mandate that each prisoner be provided clean, cold, warm, or running
water in their cells, Courts have found that water is essential to living so a detainee’s lack of drinking water over an extended period of time can constitute a constitutional. See Williams v. Collins, 2015 U.S. Dist. LEXIS 98725, 9 (N.D. Ill. 2015) (Kocoras, J.). A temporary lack of drinking water in one’s cell is not necessarily actionable under Section 1983 unless that prisoner is denied access to other sources of water. Id. (citing Tesch v. Cnty. of Green Lake, 157 F.3d 465, 476 (7th Cir. 1998)(holding that a disabled inmate’s allegations that he was denied assistance in “obtaining drinking water” for “less than two full days” was de minimis and did not state a claim for relief). Additionally, when the lack of water is connected to some other essential need, such as proper health and hygiene, a constitutional deprivation is possible. See id. (allegations that prisoner could not ‘hydrate ‘or take ‘prescribed medication’ without water in his cell sufficiently pled an unconstitutional condition of confinement); Jones v. Dart, 2015 U.S. Dist. LEXIS 12880, 5 – 8 (N.D. Ill. 2015)(Guzmán, J.). Further, courts are also clear that exposure to human excrement, regardless of the length of time, carries with it such an acute health risk that it offends the standards of human decency. Budd, 711 F.3d at 843; Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004).
The three-day water shutdown by itself would likely not amount to a viable constitutional deprivation since it was connected to a legitimate governmental purpose and Detainees were provided with alternative sources of water, i.e. the five bottles per day and the communal water barrel. Nonetheless, the associated hygiene issues alleged above could amount to sufficiently serious conditions to satisfy the first prong of the deliberate indifference test. Further, the fact that prison officials declined to provide additional water or relief from the clogged commodes when Detainees made requests supports a finding of deliberate indifference to Detainees’ present and potential
5

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health issues, satisfying the second prong. Considering the alleged adverse conditions arising from the water shut-down coupled with
the prison’s failure to address the requests of prisoners during the shut-down in a light most favorable to the Detainees, this Court finds that there is a sufficient factual basis to make out a Section 1983 claim that withstands Rule 12(b)(6) scrutiny. Accordingly, Defendant’s motion to dismiss is denied.
Qualified Immunity Qualified immunity shield officials from civil liability so long their conduct does not violate clearly established constitutional standards known to a reasonable person. Hernandez v. Mesa 137 S. Ct. 2003, 2009 (U.S. 2017). In determining if qualified immunity is an available defense, a court must first determine whether a constitutional right has been violated. Saucier v. Katz, 533 U.S. 194, 200 -01, 121 S. Ct. 2151 (2001). If one is present, then the Court looks to whether that right was clearly established at the time. Id. In light of the facts offered in the complaint and the aforementioned discussion, Detainees have sufficiently alleged a violation of their Fourteenth amendment rights. Further, as prison officials have a known duty to provide humane and reasonably safe conditions for the prisoners under their control, the right was clearly established as well. Farmer, 511 U.S. at 832. As such, the Court does not find, at this stage, that qualified immunity applies. Defendants’ motion is denied.

Conclusion

For the above reasons, Defendants’ Motion to Dismiss Plaintiff’s Complaint is denied in

part and granted in part.

IT IS SO ORDERED.

Dated: 7/23/2018

ENTERED:

SHARON JOHNSON COLEMAN United States District Court Judge

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In the
United States Court of Appeals

No. 18-2672

For the Seventh Circuit
____________________

TAPANGA HARDEMAN, et al.,

Plaintiffs-Appellees,

v.

SHERIFF MARK CURRAN, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 17 C 8729 — Sharon Johnson Coleman, Judge.
____________________

ARGUED MARCH 25, 2019 — DECIDED AUGUST 12, 2019 ____________________

Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges.
WOOD, Chief Judge. Water is vital for both health and sanitation. Dehydration affects practically every life function, including temperature regulation, digestion, brain function, toxin elimination, and oxygen distribution. See Jon Johnson, “Effects of having no water,” MEDICAL NEWS TODAY, https://www.medicalnewstoday.com/articles/325174.php

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(last visited July 19, 2019). After a few days, total deprivation of water can be fatal. Id. Basic sanitation is also essential.
The plaintiﬀs in this case, all pretrial detainees at the Lake County Adult Correctional Facility, allege that they were forced to learn this lesson the hard way. For approximately three days in 2017, the jail oﬃcials shut oﬀ all water in their jail without any warning. With no running water, the plaintiﬀs had only limited water that the defendants provided for their personal and sanitation uses. As a result, they became ill and feces built up and festered in the jails’ toilets, attracting insects. When plaintiﬀs asked for more water, they were locked down in their cells as punishment. The pretrial detainees responded with this putative class action, in which they alleged that the defendants violated their Fourteenth Amendment due process rights. Defendants moved to dismiss on the ground of qualiﬁed immunity. The district court denied their motion, and this interlocutory appeal followed. We agree with the district court’s decision and aﬃrm.
I
Because this case comes to us as a motion to dismiss asserting qualiﬁed immunity, we accept all well pleaded factual allegations in the complaint as true and draw all reasonable inferences in the plaintiﬀs’ favor. Reed v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018).
Defendants Lake County Sheriﬀ Mark Curran and Chief of Corrections David Wathen oversee the Lake County Adult Correctional Facility. (We refer to them, as well as the various yet-unnamed defendants, collectively as “Wathen.”) At the time of these events, plaintiﬀs (all pretrial detainees) were housed there. On November 7, 2017, Wathen shut oﬀ the

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water at the jail. He did not forewarn any of the detainees that this shutoﬀ was going to happen. The complaint does not reveal why Wathen shut oﬀ the water, although he avers in his brieﬁng that he did so in order to replace a water booster pump.
During the shutoﬀ, the detainees were not totally without water. Wathen provided them with ﬁve bottles (of indeterminate size) of water per day for their personal use. These ﬁve bottles were all that the detainees were given to drink, brush their teeth, wash their hands and faces, and take medication. When individual detainees asked for more water, they were refused. If a person repeatedly asked for more water, he was put on lockdown.
Wathen also provided a barrel of water (again, of unclear size) to each communal area, called a pod, within the jail. The barrel of water in each pod was to be used for bathing, cleaning the pod’s cells, and ﬂushing toilets within the cells. But not all ﬂushing: the detainees were instructed to ﬂush only when feces were present. They were forbidden to ﬂush at all during the night.
Unfortunately, these arrangements for ﬂushing were a failure, in that they often did not clear the toilets. This led to feces and urine sitting in toilets throughout the jail for prolonged periods of time. This was no small issue, as the jail has a capacity of approximately 740 inmates. There were thus hundreds of toilets holding feces and urine. Unsurprisingly, the continuous presence of excrement produced a powerful and putrid smell. Insects were also attracted to the unﬂushed feces.

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The plaintiﬀs and other detainees say that these conditions were disgusting and caused them tangible harm. They allege that they became “sick, sleep deprived, and agitated” because of the continuous presence of excrement in their cells; that they were not provided with enough water to take needed medications; and that the lack of drinking water and unsanitary conditions caused numerous ailments, including “dehydration, migraine headaches, sickness, dizziness, constipation, and general malaise.” Three days later, on November 10, 2017, the water shutoﬀ ended.
II
Because this appeal comes to us after a denial of qualiﬁed immunity, we must answer two questions: ﬁrst, whether the constitutional right asserted by the plaintiﬀs was clearly established at the time the defendants acted; and second, whether defendants’ actions violated that clearly established right. Reed, 906 F.3d at 546. “‘If either inquiry is answered in the negative, the defendant oﬃcial’ is protected by qualiﬁed immunity.” Id. (quoting Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017)). Our review is de novo. Id.
When attempting to defeat an assertion of qualiﬁed immunity, the burden is on the plaintiﬀs to show that a particular right is “clearly established.” To meet that burden, a plaintiﬀ’s asserted right must be deﬁned “at the appropriate level of speciﬁcity.” Wilson v. Layne, 526 U.S. 603, 615 (1999). “The Supreme Court has ‘repeatedly told lower courts … not to deﬁne clearly established law at a high level of generality.’” Reed, 906 F.3d at 548 (quoting Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013) (alteration in original)). An appropriately deﬁned right is clearly established if there is a closely analogous—though not necessarily identical—case identifying that

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right, or if “the defendant’s conduct was ‘so egregious and unreasonable that … no reasonable [oﬃcial] could have thought he was acting lawfully.’” Id. (alteration in original) (quoting Abbott v. Sangamon Cnty., 705 F.3d 706, 724 (7th Cir. 2013)). “The dispositive question ‘is whether the violative nature of particular conduct is clearly established.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
A
Plaintiﬀs here focus on two conditions that they allege violated their clearly established rights: the denial of the minimal amount of water needed for necessary activities of life, and the deprivation of the basic sanitary measure of preventing the build-up of feces, which forced plaintiﬀs to be surrounded by their own and others’ excrement. Both of these claims describe conditions of conﬁnement that courts have long recognized as potential constitutional violations. It has been clearly established for decades that prisons must provide inmates with “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). We have interpreted this general statement as a requirement that prisons provide inmates with “reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities.” Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (quoting Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987)); see also Woods v. Thieret, 903 F.2d 1080, 1082 (7th Cir. 1990) (“Clearly, prison oﬃcials have a responsibility to provide inmates with a minima of food, shelter and basic necessities.”).
Wathen argues that despite the generally well-established nature of these rights, the circumstances of this case—a nontotal deprivation caused by a three-day planned water

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shutdown—take us into novel territory. But what is so new about it? All but the most plainly incompetent jail oﬃcials would be aware that it is constitutionally unacceptable to fail to provide inmates with enough water for consumption and sanitation over a three-day period. Perhaps an oﬃcial would be excused for miscalculating the amount of water needed ex ante, so long as he worked to ﬁx the problem once it manifested. But that is not the case before us. According to plaintiﬀs’ allegations, Wathen provided a limited amount of water, he and his staﬀ were quickly made aware that more water was needed both for consumption and for sanitation, and they failed to provide any additional water. Indeed, plaintiﬀs allege that Wathen punished them for continued water requests.
The conditions that plaintiﬀs depict are very similar to those we have seen in previous cases, in both duration and severity. In Woods v. Thieret, we stated that an allegation of three days without food (more speciﬁcally, one full day without food, sandwiched between days without dinner or breakfast) stated a claim for a violation of the Eighth Amendment. 903 F.2d at 1082. In Johnson v. Pelker, 891 F.2d 136 (7th Cir. 1989), we reversed a grant of summary judgment for the defendants because “placing a prisoner in a cell for three days without running water and in which feces are smeared on the walls while ignoring his requests for cleaning supplies” could violate the Eighth Amendment. Id. at 139. Similarly, a number of our sister circuits have recognized that days-long deprivations of water and continued exposure to human excrement can violate the Eighth Amendment. See DeSpain v. Uphoﬀ, 264 F.3d 965, 974–75 (10th Cir. 2001) (stating that “[e]xposure to human waste, like few other conditions of conﬁnement, evokes both the health concerns emphasized in Farmer [v.

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Brennan, 511 U.S. 825 (1994),] and the more general standards of dignity embodied in the Eighth Amendment,” and collecting cases with similar holdings from the Second, Fifth, Seventh, and Eighth Circuits dating back to 1972); Dellis v. Corrections Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001) (holding that a plaintiﬀ “given only two half pints of milk and one sixteen and one-half ounce bottle of water” over three days stated an Eighth Amendment claim); Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000) (ﬁnding allegations of inadequate drinking water over four days, along with other deprivations, suﬃcient to state an Eighth Amendment claim).
We recently reaﬃrmed in Budd v. Motley that conditionsof-conﬁnement cases often involve “a mutually enforcing effect that produces the deprivation of a single, identiﬁable human need.” 711 F.3d 840, 843 (7th Cir. 2013) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). That is the case here. Drawing reasonable inferences in plaintiﬀs’ favor, as we must at this stage, problems caused by limited drinking water may have been exacerbated by the lack of water for sanitation and the consequent exposure to feces and insects. The rights that plaintiﬀs identify—to have enough water for drinking and sanitation, and not to be forced to live surrounded by their own and others’ excrement—are thus clearly established.
B
Wathen argues that his motive for shutting oﬀ the water is important, but that is so only if there is a subjective element to the plaintiﬀs’ case. As we now explain, that would be true if they were convicted prisoners, but it is not for pretrial detainees. Courts more commonly see suits of this nature brought by prisoners, whose rights are rooted in the Eighth Amendment’s prohibition on cruel and unusual punishment.

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Pretrial detainees are in a diﬀerent position, because their detention is unrelated to punishment. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015). Pretrial detainees may assert a conditions-of-conﬁnement claim under the Fourteenth Amendment’s Due Process Clause. Id. at 2473.
For many years, we analyzed pre-conviction Fourteenth Amendment and post-conviction Eighth Amendment conditions-of-conﬁnement claims under the same standard: that of the Eighth Amendment, which has both a subjective and an objective component. Farmer, 511 U.S. at 834. On the subjective side, we asked in both types of cases whether the defendant was deliberately indiﬀerent “to adverse conditions that deny ‘the minimal civilized measure of life’s necessities.’” Budd, 711 F.3d at 842 (quoting Farmer, 511 U.S. at 834); see also Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010) (also equating pretrial detainees to convicted prisoners). The Supreme Court put a halt to that equation, however, when it indicated that the interests of pretrial detainees and prisoners derive from separate sources and must be assessed diﬀerently. See Kingsley, 135 S. Ct. at 2473. The Court elaborated its reasoning as follows:
[T]he appropriate standard for a pretrial detainee’s excessive force claim is solely an objective one. For one thing, it is consistent with our precedent. We have said that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham [v. Connor, 490 U.S. 386,] 395, n. 10 [(1989)]. And in Bell [v. Wolﬁsh], we explained that such “punishment” can consist of actions taken with an “expressed intent to punish.” 441 U.S. [520,] 538 [(1979)]. But the Bell Court went on to explain that, in

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the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not “rationally related to a legitimate nonpunitive governmental purpose” or that the actions “appear excessive in relation to that purpose.” Id., at 561. The Bell Court applied this latter objective standard to evaluate a variety of prison conditions, including a prison’s practice of double-bunking.
Id.
It is true that Kingsley directly addressed only claims of excessive force, and so some circuits have understood its holding to be conﬁned to those facts. See Miranda v. Cnty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018) (collecting cases). We, however, have not taken that approach. Recognizing “that the Supreme Court has been signaling that courts must pay careful attention to the diﬀerent status of pretrial detainees,” we have held that a pretrial detainee’s claims of inadequate medical care “are subject only to the objective unreasonableness inquiry identiﬁed in Kingsley.” Id.
The plaintiﬀs in this case suggest that we should extend Kingsley further from the medical context to the general conditions-of-conﬁnement problem we have here. We see no principled reason not to do so. To the contrary, as we recognized in Miranda, there is “nothing in the logic the Supreme Court used in Kingsley that would support this kind of dissection of the diﬀerent types of claims that arise under the Fourteenth Amendment’s Due Process Clause.” Id. The Supreme Court has also said that medical care is simply one of the many conditions of conﬁnement to which an imprisoned person is subjected. Wilson, 501 U.S. at 303 (“Indeed, the medical care a prisoner receives is just as much

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a ‘condition’ of his conﬁnement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is aﬀorded against other inmates.”).
As we recognized in Miranda, several of our sister circuits have viewed Kingsley’s holding as establishing that an objective inquiry applies to a variety of conditions-of-conﬁnement claims, not just those involving excessive force. Miranda, 900 F.3d at 351–52; see also Gordon v. Cnty. of Orange, 888 F.3d 1118, 1120, 1122–25 (9th Cir. 2018) (medical-need claim); Darnell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017) (conditions of conﬁnement generally); Castro v. Cnty. of L.A., 833 F.3d 1060, 1070–71 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831 (2017) (failure-to-protect claim). Since Miranda was decided, the Tenth Circuit has joined those that apply Kingsley’s objective inquiry to a claim other than excessive use of force. See Colbruno v. Kessler, –––– F.3d ––––, No. 18-1056, 2019 WL 2751434, at *3–4 (10th Cir. July 2, 2019). Colbruno involved an allegation that oﬃcers unnecessarily walked a pretrial detainee nude through the public halls of a hospital when acquiring clothing would have taken “at most a matter of minutes,” and then handcuﬀed him to his hospital bed. Id. at *1, *5. In applying Kingsley’s objective standard, the Tenth Circuit made no distinction between excessive force, the forced unnecessary public nudity, the handcuﬃng to the hospital bed, or any other condition or restriction that might violate the Fourteenth Amendment. See id. at *6 (applying the Kingsley objective standard to both the nudity claim and the cuﬃng claim).
Like the Second and Tenth Circuits, we see no doctrinal reason to distinguish among diﬀerent types of conditions-ofconﬁnement claims for purposes of applying Kingsley’s

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objective standard. Neither the Supreme Court’s logic nor its language suggests that such a distinction is proper. See Wilson, 501 U.S. at 303; Bell, 441 U.S. at 539 (“[I]f a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inﬂicted upon detainees qua detainees.”); see also Miranda, 900 F.3d at 352. We therefore hold that Kingsley’s objective inquiry applies to all Fourteenth Amendment conditions-of-conﬁnement claims brought by pretrial detainees.
C
Though the right to water for drinking and personal sanitation, and the right to live in an environment free of accumulated human waste is clearly established, we must still ensure that plaintiﬀs have properly invoked that right in their complaint. To survive a challenge under Rule 12(b)(6), a complaint need plead only “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Qualiﬁed immunity may be appropriate at the pleading stage “where the plaintiﬀ asserts the violation of a broad constitutional right that had not been articulated at the time the violation is alleged to have occurred.” Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000). But “the plaintiﬀ is not required initially to plead factual allegations that anticipate and overcome a defense of qualiﬁed immunity.” Id. “Because a qualiﬁed immunity defense so closely depends ‘on the facts of the case,’ a ‘complaint is generally not dismissed under Rule 12(b)(6) on qualiﬁed immunity grounds.’” Reed, 906 F.3d at 548 (quoting Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)).

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A single clogged toilet does not violate the Constitution, and prisoners are not entitled to Fiji Water on demand. But on the other end of the spectrum, a defendant cannot purposefully deny water until a prisoner is on the brink of death or force a prisoner permanently to live surrounded by her own excrement and that of others. The latter actions would be so obviously unconstitutional that qualiﬁed immunity could not protect the perpetrators. See McDonald by McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (describing how qualiﬁed immunity is inappropriate when government action is “so egregious that no like case is on the books”). Our question is thus whether the severity and duration of the conditions Hardeman and the other plaintiﬀs allegedly experienced were so signiﬁcant that, if proved in the end, they violated the Constitution.
This would be our conclusion even if we took into account the County’s reason for shutting down the water. For present purposes, we will assume that Wathen’s stated reason—that a water booster pump needed to be replaced—is accurate. We do note that he might not be entitled to this favorable assumption, as the complaint makes no mention of why the water in the jail was turned oﬀ. It is anyone’s guess what discovery will reveal. Ensuring that repairs are done in a timely manner so that a jail has clean water is an obviously legitimate governmental objective. But regardless of the legitimacy of that objective, taking as true the conditions described in the complaint, with the plausible inferences we may draw from them, we ﬁnd conditions of conﬁnement that were objectively unreasonable and “excessive in relation to” any legitimate nonpunitive purpose. Kingsley, 135 S. Ct. at 2473 (quoting Bell, 441 U.S. at 561). They thus crossed outside of constitutional bounds.

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Some inconvenience was to be expected when Wathen shut oﬀ the jail’s water. Yet, as we have stressed, the conditions alleged by the plaintiﬀs went far beyond inconvenience. Exposure to hundreds of unﬂushable toilets is objectively unreasonable. See DeSpain, 264 F.3d at 974–75; Johnson, 891 F.2d at 139; LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) (“Causing a man to live, eat and perhaps sleep in close conﬁnes with his own human waste is too debasing and degrading to be permitted.”). This exposure, and the stench it caused, was compounded as insects became drawn to the standing feces and urine. Worse yet, inmates had insuﬃcient water to shower, to drink, to take medicines, to brush their teeth, and to clean their living areas; complaining about this lack of water was met with punishment. This describes objectively unreasonable conditions for pretrial detainees. See Woods, 903 F.2d at 1082; Dellis, 257 F.3d at 512; Johnson, 217 F.3d at 732. It is also plausible that the grossly unsanitary conditions throughout the jail were compounded by inmates’ dehydration-induced weakness and illness, thereby transforming what might otherwise have been a mere inconvenience into a problem of constitutional magnitude. See Budd, 711 F.3d at 843.
Wathen points to Tesch v. County of Green Lake, 157 F.3d 465 (7th Cir. 1998), to suggest that the conditions suﬀered by the plaintiﬀs were not constitutionally suspect. Tesch was a pretrial detainee with muscular dystrophy. Id. at 467. Because of his limited mobility, he could not obtain access to the sink in his cell for drinking water. Id. at 469. He was, however, given a beverage with each of his meals. Id. Tesch’s deprivation lasted for less than two days. Id. We held that these conditions were not so problematic as to violate the Constitution. Id. at 476. But Tesch is easily distinguishable. It applied the more

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demanding Eighth Amendment deliberate-indiﬀerence standard, as opposed to the objective inquiry that we apply here. See id. at 474–75. In addition, Tesch alleged nothing that exceeded “the general level of discomfort anyone can expect to experience while in custody.” Id. at 476. By contrast, plaintiﬀs here allege an assortment of physical illnesses brought on by water deprivation and appallingly unsanitary conditions in the Lake County jail.
Finally, we note that because the water shutdown was planned, none of these issues was unforeseeable or incurable. Even cursory Internet research would have given Wathen a general idea of how much water the jail would need to allow the inmates to ﬂush their toilets each day. And if Wathen could not procure enough water to ﬁx that problem, there was a still more obvious solution: portable toilets. If, as the complaint alleges, Wathen was able to transport thousands of bottles of water (ﬁve per day for several hundred inmates) and additional tubs of water into the jail, it is not clear why he could not similarly import portable toilets into the jail. Indeed, recognizing that a lack of indoor plumbing is a common problem at campgrounds, county fairs, music festivals, and other large gatherings, numerous companies have sprung up to provide this exact service, including to government entities. See, e.g. Vendor, Contract, and Payment Search, Contract to Service Sanitation, CITY OF CHICAGO, https://webapps1.chicago.gov/vcsearch/city/contracts/24835 (showing “multiple awards for rental and maintenance of portable chemical toilets, sinks, waste water barrels, waterless hand sanitizer dispensers and fresh water trailers” between 2011 and 2020). Had a longer time for the outage been likely, Wathen perhaps could have transported the aﬀected inmates to another facility until the Lake County jail’s repairs were completed. At the

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least, Wathen should have known that he needed to procure more water on the second and third days of the shutdown than he supplied for the ﬁrst.
We do not list these alternatives to suggest that Wathen must have done one or more of these things to satisfy due process. The Constitution is not so inﬂexible. Instead, we merely note these examples to show that Wathen appears to have had numerous options that would have allowed the alleged pump repair without depriving the detainees of adequate water and sanitation facilities in the interim. Whether the detainees can prove what they have alleged, and what Wathen and his codefendants can show in response, remains to be seen.
III
“[W]hen the State by the aﬃrmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the … Due Process Clause.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). The Supreme Court’s words apply with full force here. Hardeman and the other plaintiﬀs allege that the Lake County oﬃcials prevented them from caring for themselves and then deprived them of the most basic of human needs— water. The resulting alleged unsanitary conditions and physical harms were objectively unreasonable conditions of conﬁnement that (if proven) violated the Fourteenth Amendment’s due-process guarantee.
We thus AFFIRM the district court’s order denying the defendants’ request for qualiﬁed immunity.

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SYKES, Circuit Judge, concurring in the judgment. After Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018), it makes sense as a doctrinal matter to extend Kingsley’s objective standard to all conditions-of-confinement claims by pretrial detainees. As my colleagues explain, when a jail official harms a pretrial detainee, the constitutional right in question is the Fourteenth Amendment’s guarantee of due process, not the Eighth Amendment’s protection against cruel and unusual punishment. In Kingsley v. Hendrickson, 135 S. Ct. 2466, 2470–71 (2015), the Supreme Court confronted a pretrial detainee’s claim that jail officers used excessive force against him. The Court explained that the plaintiff’s due-process claim entailed two state-of-mind questions:
The first concerns the defendant’s state of mind with respect to his physical acts—i.e., his state of mind with respect to the bringing about of certain physical consequences in the world. The second question concerns the defendant’s state of mind with respect to whether his use of force was “excessive.”
Id. at 2472.
As to the first question, the Court reiterated the rule that negligently inflicted harm is not actionable as a constitutional violation; rather, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Id. That point was not disputed; the officers did not deny that they deliberately used force against the plaintiff. Id. As to the second question—“the defendant’s state of mind with respect to the proper interpretation of the force … that the defendant deliberately (not accidentally or negligently) used”—the Court ruled that the plaintiff need not establish

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that the officers subjectively intended to use excessive force. Id. Rather, at this step of the decision framework, the Court held that an objective inquiry applies. Id. at 2472–73. A pretrial detainee can prevail on an excessive-force claim by proving that the force deliberately used against him was objectively unreasonable—namely, by providing “objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 2473–74.
In Miranda we extended Kingsley’s “objective unreasonableness” standard to a claim that a pretrial detainee received constitutionally inadequate medical care. 900 F.3d at 352–54. We emphasized, however, that Kingsley retained the rule that mere negligence is not a constitutional violation. Id. at 353– 54. Miranda involved the death of a mentally ill jail inmate who refused food and water. Her estate sued the jail officials and medical providers involved in her care. To prevail against the medical providers, the estate was required to prove that they “acted purposefully, knowingly, or perhaps … recklessly when they considered the consequences of their handling of [her] case.” Id. at 353. The estate’s evidence was sufficient to support an inference that the medical providers “made the decision to continue observing [the inmate] in the jail, rather than transporting her to the hospital, with purposeful, knowing, or reckless disregard of the consequences.” Id. at 354. Accordingly, we held that “a jury must decide whether the doctors’ deliberate failure to act was objectively reasonable.” Id.
Like my colleagues, I see no principled reason to treat general conditions-of-confinement claims differently than medical conditions-of-confinement claims. I therefore agree

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that this case is governed by Kingsley’s objective standard— but importantly, only at the step in the liability framework that requires an interpretation of the conditions to which the plaintiffs were subjected during the three-day water shutoff. As I’ve just explained, under Kingsley the constitutional claim still carries a subjective component. To prevail, the plaintiffs must prove that the defendants acted purposefully, knowingly, or recklessly; negligence is not enough. In addition, nothing in Kingsley removed the threshold requirement in every conditions-of-confinement claim: “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). That’s because only “objectively [and] sufficiently serious” deprivations are actionable as a violation of the Constitution. Id. (quotation marks omitted). Typically, this refers to the denial of life’s basic necessities, such as “adequate food, clothing, shelter, and medical care.” Id. at 832.
So to prevail on a claim alleging unconstitutional conditions of pretrial confinement, the plaintiff must prove three elements: (1) the conditions in question are or were objectively serious (or if the claim is for inadequate medical care, his medical condition is or was objectively serious); (2) the defendant acted purposefully, knowingly, or recklessly with respect to the consequences of his actions; and (3) the defendant’s actions were objectively unreasonable—that is, “not rationally related to a legitimate governmental objective or … excessive in relation to that purpose.” Kingsley, 135 S. Ct. at 2473–74.
With these understandings, I agree that the qualifiedimmunity defense fails at this early stage of the litigation.

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Qualified immunity is normally hard to win on a Rule 12(b)(6) motion. See, e.g., Reed v. Palmer, 906 F.3d 540, 548–49 (7th Cir. 2018). This case is no exception. The factual allegations in the complaint describe a three-day water shutoff in the Lake County Jail in which the plaintiffs and other inmates were deprived of the minimal amount of water necessary to stay hydrated, take medication, maintain basic hygiene, and flush waste from their cell toilets. The complaint further alleges that as a result of the deteriorating conditions during the three-day shutdown, the plaintiffs and other inmates suffered “a variety of ailments, including but not limited to, dehydration, migraine headaches, sickness, dizziness, constipation, and general malaise.” Finally, the complaint alleges that the defendants intentionally and with deliberate indifference subjected the plaintiffs and other inmates to these conditions. I agree with my colleagues that these allegations state a claim for “denial of the minimal civilized measure of life’s necessities,” Farmer, 511 U.S. at 834 (quotation marks omitted), a clearly established constitutional violation. Majority Op. at pp. 5–6.
The defendants say they had a legitimate purpose for shutting off the water (to replace a water pump) and the ensuing conditions in the jail were not excessive in relation to that purpose. As my colleagues note, the factual basis for this argument lies outside the complaint. Regardless, we cannot evaluate the defendants’ response to the water-pump contingency without a factual record. At this stage we take the allegations in the complaint as true, and the plaintiffs are entitled to all reasonable inferences in their favor. The defendants may of course renew their immunity claim as the facts develop. Reed, 906 F.3d at 548–49 (explaining the difference in the qualified-immunity analysis at the pleadings

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stage and on summary judgment). For now, the district judge was right to reject the defense.

 
 Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 1 of 10 PageID #:406

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

TAPANGA HARDEMAN, DANIEL

)

WILLIAMS, LEWIS MYLES, QUENTA )

LAMAR WASHINGTON, and LAVONTE )

MUREL, individually and

)

on behalf of others similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF LAKE, OFFICE OF THE )

LAKE COUNTY SHERIFF, SHERIFF )

MARK CURRAN, CHIEF DAVID

)

WATHEN, and JOHN DOE OFFICERS )

and SUPERVISORS,

)

)

Defendants.

)

Case No. 17-cv-08729 Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER Plaintiff Tapanga Hardeman, on behalf of herself and all affected inmates, filed this action against County of Lake, Office of the Lake County Sheriff, Sheriff Mark Curran, Chief David Wathen, and John Doe Officers and Supervisors (collectively, “Lake County Corrections” or “Defendants”) for violating the Civil Rights Act of 1871, 42 U.S.C.§ 1983, pursuant to the Eighth and Fourteenth Amendment. County of Lake is also a defendant from which Hardeman seeks indemnification in the event that the individually named defendants are found liable for actions performed in the course of their employment. Hardeman now submits her First Amended Complaint, moves this Court for an order certifying this case to proceed as a class action pursuant to Federal Rule of Civil Procedure 23, and moves this Court to appoint the O’Connor Law Firm, LTD., as Class Counsel. (Dkt. 40.) For the reasons stated herein, Plaintiffs’ motion is granted in full.

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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 2 of 10 PageID #:407
Background Hardeman and the putative class members were being held at the Lake County Adult
Correctional Facility in Waukegan, County of Lake, IL on or about November 8, 2017. At that time, Lake County Corrections turned off the water and it was not turned on again until November 10, 2017, resulting in a shutoff lasting two and a half days. While the water was turned off, Lake County provided detainees with five bottles of water per day to use for their personal needs, such as drinking, hygiene, cooking, and medical purposes. Detainees were provided a communal barrel of water located in the “pod” to use for bathing, cleaning their cells, and flushing the toilet. During this time, detainees complained that they were deprived of sufficient water to take medication and to stay hydrated. While the water was shut off, detainees also allege that they were restricted to flushing the toilets in their cells only when feces were present, and were totally prohibited from flushing the commodes at night. Detainees contend that bodily excrement sat in toilets for prolonged periods, which attracted more vermin to the jail cells and caused a stench that made detainees sick, agitated, and sleep-deprived.
Hardeman filed this Complaint on December 4, 2017, alleging that Lake County Corrections violated her and other detainees’ Eight and Fourteenth Amendment rights by intentionally depriving them of adequate amounts of water for three days, which caused them to live in unsafe, inhumane and unsanitary conditions, and to suffer from various physical ailments. Lake Country Corrections filed a motion to dismiss on February 22, 2018. The Court denied the motion to dismiss, also denying qualified immunity. Lake County Corrections appealed that order to the Seventh Circuit, which affirmed this Court’s decision. Hardeman now seeks to certify this case to proceed as a class action pursuant to Federal Rule of Civil Procedure 23 and moves this Court to appoint the O’Connor Law Firm, LTD as class counsel.
Hardeman seeks to organize the class into two subclasses:
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 3 of 10 PageID #:408
Subclass A: all persons present in the Lake County Adult Correctional Facility between November 7, 2017, and November 10, 2017, being held as pretrial detainees Subclass B: all persons present in the Lake County Adult Correctional Facility between November 7, 2017, and November 10, 2017, as post-conviction inmates Legal Standard
To be entitled to class certification, Plaintiffs must demonstrate that they satisfy all of the requirements of Federal Rule of Civil Procedure 23(a) and one of the three alternatives set forth in Rule 23(b). Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012). Rule 23(a) requires that a proposed class meet requirements of numerosity, typicality, commonality, and adequacy of representation. Id. When certification is sought under Rule 23(b)(3), as it is here, the proponents of the class must also show that questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members and, relatedly, that a class action is superior to other available methods of resolving the controversy. Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016) (citing Fed. R. Civ. P. 23(b)(3)).
Rule 23 “does not set forth a mere pleading standard.” Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (internal quotation marks and citation omitted). When factual disputes bear on matters vital to certification, the Court must receive evidence and resolve those disputes prior to certifying the class. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). Certification is proper only if, “after rigorous analysis,” the Court is satisfied that Rule 23’s prerequisites have been met. Comcast Corp., 569 U.S. at 33. “Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements but they need not make that showing to a degree of absolute certainty. It is sufficient if each disputed requirement has been proven by a preponderance of evidence.” Messner, 669 F.3d at 811 (citations omitted). The Seventh Circuit has repeatedly reiterated that the focus of class certification must be on Rule 23 and that class certification proceedings cannot be allowed to turn into a preemptive determination of the merits. See Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 375 (7th Cir. 2015).
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 4 of 10 PageID #:409
Analysis Defendants spend much of their response brief arguing the merits of the case. The Court
reminds Defendants that a finding on the merits is inappropriate at this stage. The Court will consider the merits of this case only to the extent that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. See Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466, 133 S. Ct. 1184, 1195, 185 L. Ed. 2d 308 (2013).
Defendants argue that the class should not be certified given that there are factual discrepancies in the affidavits Hardeman attached to her motion, including whether the shut-off happened on November 7, 2017 or November 8, 2017. As to those dates, Defendants have presented enough evidence to establish that the water in the facility was shut off on November 8, 2017 and restored on November 10, 2017. Thus, the Court will narrow the class to include inmates housed in the correctional facility between November 8, 2017 and November 10, 2017. See Messner, 669 F.3d at 825 (noting that a court may refine class definitions, including when the proposed definition is overly broad).
Defendant also take issue with Hardeman relying only on affidavits to support her motion and argue that she must have conducted further discovery. Hardeman need not present more than affidavits in support of her motion at this point, so Defendants’ argument is rejected. See Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 371 (7th Cir. 2015) (noting that a court may receive evidence by affidavit to resolve factual issues pertaining to class certification issues). Defendants will have an opportunity to contest the merits of the case and the evidence Plaintiffs will rely on at later stages of litigation.
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 5 of 10 PageID #:410
1. Rule 23(a) a. Numerosity
Plaintiffs have demonstrated that their proposed classes are sufficiently numerous for class treatment. Numerosity requires that a class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[A] plaintiff does not need to demonstrate the exact number of class members as long as a conclusion is apparent from good-faith estimates.” Barragan v. Evanger’s Dog and Cat Food Co., 259 F.R.D. 330, 333 (N.D.Ill. 2009) (Darrah, J.). Here, Plaintiffs have presented evidence that the proposed class contains at least fifty members and argue that number could be higher than 500 members. (Dkt. 40-1.) Joinder of more than fifty plaintiffs would certainly be impracticable. See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n. 9 (7th Cir. 1969) (holding that a proposed class of 40 was “a sufficiently large group to satisfy Rule 23(a)”); Marquez v. Weinstein, Pinson & Riley, P.S., No. 14 C 739, 2017 WL 4164170, at *5 (N.D. Ill. Sept. 20, 2017) (Tharp, J.) (“Although there is no ‘magic number’ of class members for numerosity purposes, when a class reaches forty, joinder is typically considered impracticable”). Accordingly, Plaintiffs’ proposed class satisfies the numerosity requirement of Rule 23(a). b. Commonality
Plaintiffs have also demonstrated commonality, which means the existence of “‘questions of law or fact common to the class.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 346, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quoting Fed. R. Civ. P. 23(a)(2)). “What matters to class certification … [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (quoting Wal-Mart, 564 U.S. at 350). “A common nucleus of operative fact is usually enough to satisfy” this requirement. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 6 of 10 PageID #:411
Defendants argue that Hardeman cannot satisfy commonality because she does not offer significant proof that there was a common policy of practice that harmed the proposed class. Defendants argue there is no proof that inmates suffered “any harm at all” as a result of the shutoff. To the contrary, Hardeman provides several affidavits outlining deplorable conditions as a result of the water shutoff. These include inmates feeling dehydrated, having feces accumulating and festering in toilets overnight, being forced to use unsanitary water for personal hygiene, and being punished for requesting more water, among others. Hardeman has clearly provided evidence of a common harm to her proposed class.
Additionally, Defendants admit that water was shut off to all inmates between November 8, 2017 and November 10, 2017. They argue that the crux of the legal issue here is whether the conditions resulting from the shutoff rise to a constitutional violation and that that determination is highly individualized and does not rely on class-wide proof. Defendants misrepresent how individualized the claims in this case are.
The core of Hardeman’s case is that she and all members of the proposed class had their right to humane conditions of confinement violated pursuant to uniform policies, customs and practices implemented by Defendants during the water shutoff. The same defendants who caused the shutoff implemented the water bottle and trash can system, subjected all putative class members to the effects of feces and urine accumulating in their cells’ toilets, and punished pretrial detainees by placing them on lockdown for requesting more water. The constitutional claims for all putative class members therefore arise from the same conduct and practices of the same defendants. Furthermore, that plaintiffs might require individualized relief or some individualized proof does not necessarily preclude class certification. See Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 379 (7th Cir. 2015) (noting that Rule 23 does not requires that every question be common and that it is routine in
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 7 of 10 PageID #:412
class actions to have a final phase in which individualized proof is submitted). Accordingly, Hardeman has satisfied Rule 23’s commonality requirement. c. Typicality
Plaintiffs’ claims are typical if they arise from the same event, practice, or course of action that gives rise to the claims of other class members; and the claims of the Plaintiffs and the class members are based on the same legal theory. Keele, 149 F.3d at 595.
Here, Plaintiffs’ and the potential class members’ claims arise from the same course of action of Defendants: shutting off the water and allegedly subjecting the inmates to inhumane conditions. The claims of Plaintiffs and the potential class members also arise from the same legal theories: violations of the Eighth and Fourteen Amendments. Accordingly, Plaintiffs have satisfied the typicality requirement. d. Adequacy
The final requirement under Rule 23(a) is that the representative party will “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “[A]dequacy of representation is composed of two parts: the adequacy of the named Plaintiffs’ counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest of the class members.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (quotation omitted). To be an adequate representative, the named Plaintiffs must not have “antagonistic or conflicting claims.” Id. at 598.
Plaintiffs’ attorneys appear qualified, and no apparent conflicts exist between the named Plaintiffs and the class. Additionally, Hardeman has allegedly suffered the very harm she contends the whole class has suffered—inhumane conditions resulting from the water shutoff. Accordingly, Hardeman has satisfied the adequacy requirement.
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 8 of 10 PageID #:413
2. Rule 23(b)(3) Having determined that Hardeman meets Rule 23(a)’s threshold prerequisites, the Court
turns to the Rule 23(b)(3) requirements. Hardeman must demonstrate that “questions of law or fact common to class members predominate over any questions affecting only individual members” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). a. Predominance
“Rule 23(b)(3)’s predominance requirement is satisfied when common questions represent a significant aspect of a case and can be resolved for all members of a class in a single adjudication.” Messner, 669 F.3d at 815 (quotation omitted). While common questions of law or fact must predominate, they need not be exclusive. See Tatz v. Nanophase Techs. Corp., No. 01 C 8440, 2003 WL 21372471, at *9 (N.D. Ill. June 13, 2003) (Andersen, J.). This requirement is met when “common nucleus of operative facts and issues underlies the claims brought by the proposed class.” Messner, 669 F.3d at 815 (internal quotations omitted). Predominance is a qualitative concept that determines whether “there are more common issues or more individual issues, regardless of relative importance.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). Defendants argue that Plaintiffs cannot meet this requirement because individualized issues predominate.
Defendants argue that it would be difficult to determine liability on a class-wide basis because the constitutional claims are highly individualized. Because many of the detainees were treated differently, they argue, the analysis and outcome of their individual cases would differ. However, courts have found class treatment appropriate where “certain conditions [of confinement] common to all ... are unlawful.” See Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005), amended on reconsideration on other grounds, No. 04 C 6804, 2005 WL 3299391 (N.D. Ill. Nov. 30, 2005) (Gettleman, J.). This is especially true where the conditions stem from jail policies or practices that
8

Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 9 of 10 PageID #:414
are applied uniformly to all prisoners. See Young v. County of Cook, 2007 WL 1238920, at *7 (N.D.Ill. Apr. 25, 2007) (Kennelly, J.).
Here, the predominant legal issue is whether Defendants created unconstitutionally adverse conditions of confinement for all detainees present during the water shutoff, making them liable for resulting injuries to the putative class members. Many of the conditions of confinement are common to all class members. For example, the festering feces overnight, dehydration, and lack of sanitary water for personal hygiene. Based on the limited evidence before the Court, each of these conditions of confinement is the result of a uniform policy or practice by the correctional facility. The putative class will rely on these facts, among others, to prove a violation of the Eighth and Fourteenth Amendments. Accordingly, liability will not depend on each plaintiff’s individual circumstances because the class members will largely rely on the same issues of fact and law to support their claim. Whether some detainees were subject to different degrees of inhumane conditions will not prevent the court from analyzing the shared conditions suffered by all the detainees.
Defendants also argue that individualized analysis of Defendants’ conduct precludes class certification. The existence of individualized defenses, however, does not preclude class certification. See Dunn, 231 F.R.D. at 377. This argument also fails.
To the extent that Defendants argue that predominance cannot be satisfied because of individualized damages calculations, that argument is rejected. “It is well established that the presence of individualized questions regarding damages does not prevent certification under Rule 23(b)(3).” Messner, 669 F.3d at 815 (citing Wal–Mart v. Dukes, 131 S.Ct. at 2558). Factual issues around the gender of the detainees, number of individuals in a cell, quality of ventilation, and other issues can be resolved individually during the damages stage of litigation. Accordingly,
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Case: 1:17-cv-08729 Document #: 56 Filed: 11/17/20 Page 10 of 10 PageID #:415

individualized damages calculations will not prevent certification here, where common questions and factual issues regarding liability predominate. b. Superiority
Finally, Plaintiffs must show that proceeding as a class action is superior to alternative methods of resolving the controversy. See Fed. R. Civ. P. 23(b)(3). This requirement is satisfied if “a class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal citation and quotation marks omitted). Here, common issues of law and fact predominate, so both discovery and litigation will be more efficiently conducted pursuant to class certification. Defendants have not presented arguments objecting to the superiority requirement. Accordingly, it has been satisfied.
Conclusion For these reasons, this Court grants Plaintiff’s motion for class certification [40]. The Court
certifies the following sub-classes: Subclass A: all persons present in the Lake County Adult Correctional Facility between November 8, 2017, and November 10, 2017, being held as pretrial detainees Subclass B: all persons present in the Lake County Adult Correctional Facility between November 8, 2017, and November 10, 2017, as post-conviction inmates

IT IS SO ORDERED. Date: 11/17/2020

Entered: _____________________________ SHARON JOHNSON COLEMAN United States District Judge

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