IN THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT 

No. 14-________ 

BRIAN OTERO, individually and ) 

on behalf of a class of similarly situated ) 

individuals, ) 

 ) 12 C 3148 

 Plaintiff, ) 

 ) Honorable Judge 

 vs. ) Amy J. St. Eve 

 ) 

THOMAS J. DART, et al. ) Magistrate Judge 

 ) Michael T. Mason 

 Defendants. ) 

DEFENDANT DART’S RULE 23(f) PETITION FOR PERMISSION TO APPEAL 

Petitioner Thomas Dart, Sheriff of Cook County, respectfully requests that the Court 

grant permission to appeal from the district court’s order of September 2, 2014 (R. 92 attached as 

Appendix 1)(“Order”), granting Plaintiffs’ renewed motion for class certification pursuant to 

Federal Rule of Civil Procedure (Fed. R. Civ. P.) 23(b)(3), which certified the following class: 

All male inmates who while being detained by the Cook County Sheriff’s Office were 

found not guilty, were acquitted, or had charges brought against them dismissed, and for 

whom the Sheriff’s Office no longer had any legal right to detain from April 27, 2010 

through the present. (App. 1, p.18). 

Petitioners ask this Court to grant permission to appeal where: (1) the district court 

disregarded this Court’s opinions in Harper v. Sheriff of Cook County, 581 F.3d 511, 515-16 (7th 

Cir. 2009), cert. denied, 130 S. Ct. 910 (2010), and Portis v. City of Chicago, 613 F.3d 702 (7th 

Cir. 2010), which are applicable to the instant case and demonstrate that Plaintiff’s class fails to 

meet the requirements of Fed. R. Civ. P. 23(a) and the predominance requirement of Fed. R. Civ. 

P. 23(b)(3). See Harper, 581 F.3d at 515-16 (whether a specific procedure for processing 

individuals who have been remanded to the Sheriff is unconstitutional must consider the specific 

SHORT RECORD

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facts and circumstances of each detainee’s release and “liability, to say nothing of damages, 

would need to be determined on an individual basis”); Portis, 613 F.3d at 705 (decertifying the 

class and rejecting the plaintiff’s argument for a “bright line” rule in determining whether a 

detention was unreasonable and instead finding such analysis be done on a case-by-case basis); 

and (2) the district court improperly infringed on the deference afforded to correctional officials 

in running a facility like Cook County Jail (CCJ). See Bell v. Wolfish, 441 U.S. 520, 547 

(1979)(courts should ordinarily defer to expert judgment in jail administration); Lewis v. 

O’Grady, 853 F.2d 1366, 1369 (7th Cir. 1988)(the sheriff is “given wide discretion in releasing a 

discharged prisoner”).

JURISDICTIONAL STATEMENT 

Plaintiff originally brought claims under 42 U.S.C. § 1983, alleging that the process of 

discharging male detainees from CCJ who had been found not guilty or otherwise acquitted was 

unconstitutional. R. 1, ¶ 11. In particular, Plaintiff alleged that the CCJ’s process of thoroughly 

reviewing documentation and performing identity checks to determine whether a detainee has 

other pending criminal matters or outstanding warrants, is unconstitutional. Plaintiff, on behalf of 

the purported class, sought class certification under Fed. R. Civ. P. 23(b)(2) and (b)(3). R. 41, p. 

7, n.5. The district court originally denied Plaintiff’s motion for class certification with prejudice

as to a class based on the alleged unreasonableness of the delay in releasing acquitted detainees, 

and denied the motion without prejudice as to a class based on a challenge to any specific 

detention procedures. R. 52, pp. 14-15. Plaintiff subsequently filed an amended class action 

complaint and a renewed motion for class certification on seeking compensatory damages under 

Fed. R. Civ. 23(b)(3). R. 56, 60. In his amended complaint, Plaintiff expanded the definition of 

his proposed class to include male detainees who had not only been found not guilty or acquitted, 

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but also those who had charges against them dismissed or otherwise received a judicial 

determination requiring their release. R. 56, p. 5. 

On September 2, 2014, the district court granted Plaintiff’s motion for class certification, 

but modified the class definition by removing the language “or otherwise received a judicial 

determination requiring their release” from the original class definition. R. 92, p. 18. Petitioner 

filed this petition for permission to appeal within fourteen (14) days following the entry of the 

district court’s order granting the motion for class certification. This Court has the discretionary 

authority to hear this appeal pursuant to Fed. R. Civ. P. 23(f). See Carnegie v. Household Int’l 

Inc., 376 F.3d 656, 658 (7th Cir. 2004). 

The district court’s decision to grant certification in this matter seriously undermines and 

is in conflict with well-established Supreme Court and Seventh Circuit precedent regarding both 

class action litigation and the limits of judicial involvement in the administration of correctional 

facilities. Specifically, the district court failed to apply Harper and Portis, both of which compel 

denial of class certification and are binding authority in this Circuit. The district court’s decision 

ignores the need for thorough and accurate review of detainee records at the largest single-site 

jail facility in the United States, R. 80, p. 3, to ensure not only that the discharge of detainees 

takes place as promptly as practicable, but also that the wrong person is not discharged, which 

could pose a very real and serious threat to the members of society. The district court’s 

certification of the class also runs afoul of the guidance provided by the Supreme Court and this 

Court in according due deference to correctional facilities. Instead, the district court has decided 

to certify Plaintiff’s class – despite very limited discovery, no citations to authority that would 

support Plaintiff’s claim, no expert discovery or opinion and no citation to accepted correctional 

standards that would even suggest that the CCJ discharge procedure is unreasonable, let alone 

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unconstitutional. Moreover, and significantly, the CCJ discharge procedure is not part of the 

dozens of conditions and issues that are part of the consent decree in United States v. Cook 

County, 10 C 2946, which illustrates that concerns, if any, about the discharge procedure are not 

sufficient to merit inclusion in the wide-ranging issues that comprise that lawsuit. 

Permission to appeal pursuant to Fed. R. Civ. P. 23(f) may be granted or denied “on the 

basis of any consideration that the court of appeals finds persuasive.” Blair v. Equifax Check 

Srvcs, Inc., 181 F.3d 832, 833 (7th Cir. 1999)(citing Committee Note accompanying Fed. R. Civ. 

P. 23(f)). However, there is a stronger case for allowing an appeal where “. . . the more novel the 

issue presented by the appeal and so less likely that the district court’s resolution of it will stand, 

more important the resolution of the issue is either to the particular litigation or to the general 

development of class action law, and the more likely the prompt resolution of the issue is to 

expedite the litigation and prevent a coercive settlement. . .” Carnegie, 376 F.3d at 658; see also 

Blair, 181 F.3d at 835 (an appeal may be taken if it facilitates the development of the law). 

This Court should grant Defendant’s petition to appeal the district court’s decision as 

these concerns are present in the instant case. The class that has been certified is novel in this 

Circuit as prior class litigation has involved specific aspects of the discharge process that were 

alleged to be unconstitutional, including strip searches and invasive testing for sexually 

transmitted diseases, but that is not the case in the present matter.1

 The importance of appellate 

review of the district court’s decision is also significant because of the volume of litigation 

involving CCJ, including lawsuits that are seeking to proceed as class actions. A ruling by this 

Court would clarify the requirements for a plaintiff’s lawsuit to be certified as a class action, see 

 1 Streeter v. Sheriff of Cook County, 256 F.R.D. 609 (N.D. Ill. 2009), Young v. County of Cook, 06 C. 552 

(N.D. Ill.) and Bullock v. Sheahan, 225 F.R.D. 227 (N.D. Ill. 2004) all involved strip searches and 

Jackson v. Sheriff of Cook County, 06 C 493 (N.D. Ill.) involved a procedure that involved testing of 

detainees for sexually transmitted diseases by way of taking a penile swab. 

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Blair, 181 F.3d at 835 (noting that a consideration of whether to take an appeal is it would 

facilitate the development of the law), both generally and in the context of lawsuits involving 

correctional facilities, and also potentially limit the individuals who are members of the class or 

impose limitations on damages. Finally, assuming arguendo that all class members are entitled to 

damages, review by this Court could “prevent a coercive settlement,” as many class members 

will be entitled to no more than nominal damages and their success at trial is unlikely, but the 

number of class members and fees may unfairly increase the pressure to settle this case. See 

Carnegie, 376 F.3d at 658. 

QUESTIONS PRESENTED 

1. Whether the district court abused its discretion in certifying Plaintiff’s class in 

light of this Court’s decisions in Harper and Portis, which reversed class certification where the 

required individual inquiries defeated both commonality and typicality under similar factual 

scenarios, and where there was no predominance because each detention needed to be evaluated 

under a reasonableness standard, rather than a rule. Harper, 581 F.3d at 515; Portis, 613 F.3d at 

705.

2. Whether the district court abused its discretion where its ruling on class 

certification constitutes an unwarranted intrusion on the administration of the Cook County Jail. 

STATEMENT 

I. The District Court Abused its Discretion in Finding Plaintiff Met the Commonality 

and Typicality Requirements of Rule 23(a) and the Predominance Requirement of 

Rule 23(b)(3) Where its Ruling Disregarded This Court’s Holdings in Harper and 

Portis, Which Require Denial of Certification of Plaintiff’s Class 

 

The district court abused its discretion by disregarding the Court’s holdings in 

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Harper and Portis that common questions regarding reasonableness do not predominate 

“because reasonableness is a standard rather than a rule, and because one detainee’s 

circumstances differ from another’s.” Portis, 613 F.3d at 705; Harper, 581 F.3d at 515. 

A. The district court abused its discretion by finding that Plaintiffs satisfied the 

commonality and typicality requirements of Rule 23(a) 

 Under Rule 23(a), the party seeking certification must demonstrate, first, that: (1) the 

class is so numerous that joinder of all members is impracticable, (2) there are questions of law 

or fact common to the class, (3) the claims or defenses of the representative parties are typical of 

the claims or defenses of the class, (4) the representative parties will fairly and adequately 

protect the interests of the class. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541; 180 L. Ed. 2d 

374 (2011). The typicality requirement under Rule 23(a)(3) is closely related to the commonality 

requirement of Rule 23(a)(2). Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). The district 

court’s determination may be made only after it conducts a “rigorous analysis” granting 

certification. See Comcast Corp. v. Behrend, 133 S. Ct 1426, 1432 (2013). 

This Court addressed similar detention-related proceedings and held that class 

certification was not appropriate. In Harper, the plaintiff attempted to certify a class based on, as 

the court ultimately “decipher[ed]”, an allegation that the Sheriff’s policy of holding detainees 

after bond had been posted was unconstitutional. Harper, 581 F.3d at 514-15. In vacating the 

district court’s decision to certify the plaintiff’s proposed class, this Court held that the 

“constitutionality of this detention depends on whether the length of the delay between the time 

the Sheriff was notified that bond had been posted and the time that the detainee was released 

was reasonable in any given case.” Id. at 515. Such a determination is: 

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an individual issue that will depend on how long each detainee was held after 

bond was posted and what justifications there might be for the delay on that 

particular day or for that particular detainee--the time of day, whether the jail 

was processing an unusually large number of detainees at that time, whether 

other events occurring at the jail legitimately slowed processing times, whether 

the detainee's lack of cooperation delayed processing, etc. 

Id.; see Lewis v. O'Grady, 853 F.2d 1366, 1370 (7th Cir. 1988)(what is a reasonable time for 

detaining prisoner after grounds for detention have ceased depends on facts presented in each 

case). Moreover, “[l]iability, to say nothing of damages, would need to be determined on an 

individual basis. Thus, common issues do not predominate over individual issues, making this 

case inappropriate for class disposition.” Harper, 581 F.3d at 515; see FED. R. CIV. P. 23(b)(3). 

 In Portis v. City of Chicago, 613 F.3d 702 (7th Cir. 2010), this Court reversed 

certification of a class of arrestees that were held more than two hours from the time a Central 

Booking (CB) number was issued until they were released from police custody. 613 F.3d at 705. 

The court found that the facts and circumstances for each detainee’s release, in addition to the 

length of time they remained in custody, would have to be examined and that such inquiry goes 

to the reasonableness of the detention – which is a “standard rather than a rule.” Id. 

 In this case, the district court’s ruling granting class certification disregarded this Court’s 

decisions in Harper and Portis and doing so constituted an abuse of discretion. On a daily basis, 

CCJ transports approximately 1,000 pretrial detainees to 17 different courthouses located 

throughout Cook County. R. 80, p. 3. Once a detainee is found not guilty, acquitted, or had the 

charges brought against him dismissed, the CCJ personnel can only then begin the process of 

discharging a detainee once the orders are received from the court. Id, p. 12. The paperwork (i.e., 

court orders) necessary to begin this procedure is generated by the combined effort of the 

courtroom clerk and the judge, with no involvement of Sheriff’s personnel at all. Id., p. 10. Once 

the proper paperwork is received, CCJ staff is able to conduct a series of checks – including if 

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the detainee has other pending cases, outstanding warrants or any other reason why the detainee 

should still be detained. R. 80, pp. 11-12. This process is continuous, taking place twenty-four 

hours a day, seven days a week. Id., p. 11. 

 Once this labor-intensive process is completed, the pack is returned to a sergeant and 

auditor for review. R. 80, p. 13. At that point, the receiving room receives the pack and, after a 

final review, the detainee is brought from his division to complete the discharge process. Id. At 

this point, the final paperwork is completed so that the detainee may be discharged. Id. The 

detainee then retrieves any personal property that he entered the jail with and is allowed to leave 

the outer gate of CCJ after a final identity check is done. 

Proper analysis of each putative class member’s claim requires the district court to make 

individualized determinations as to the reasonableness of that detainee’s release. As this Court 

held in Harper – and as is equally applicable here - the determination of whether a detainee’s 

detention was constitutional or not depended on the reasonableness of the delay in each 

detainee’s case. Harper, 581 F.3d at 515 (emphasis added). This analysis will need to be done 

for every class member in order to determine if their discharge was improper. Harper and Portis

teach that the length of detention is a crucial and potentially dispositive variable which will 

undoubtedly vary from class member to class member and thus is not common to the class as a 

whole. And under these cases, the time of detention cannot simply be removed from the inquiry, 

even where the procedure itself is allegedly at issue. Whether Plaintiff’s class suffered a 

constitutional harm – as well as any recovery – is dependent on the length of time that each 

detainee was in custody. See Portis, 613 F.3d at 705 (length of time among the factors to be 

considered in determining if a detention is reasonable). This Court has made it clear that 

individualized determinations, under very similar circumstances, is required not just in light of 

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damages, but also in determining liability and thus Plaintiff’s claims are not suitable for a class 

action. See Harper, 581 F.3d at 515-16; Lewis v. Tully, 660 F. Supp. 293, 296 (N.D. Ill. May 14, 

1987)(“No court has ever held jailers liable for delaying a prisoner’s release in order to verify his 

identify and ensure that they have no further basis for holding him”); see also Portis, 613 F.3d at 

705 (each plaintiff would bear the burden of showing that his detention was unreasonable). 

Therefore, the district court erred in granting Plaintiff’s motion for class certification and this 

Court should reverse that decision. 

Neither the Plaintiff nor the district court has cited any legal precedent, correctional 

standards, or correctional expert opinion stating that CCJ’s approach to transporting and 

processing purported class members contradicts accepted correctional practice, let alone is 

unconstitutional. Instead, the district court assumes the discharge procedure at CCJ is per se 

unconstitutional without any evidentiary support to buttress this claim and without any showing 

of harm. This is clearly contrary to the holdings of Harper and Portis, and the district court 

should have rejected Plaintiff’s effort to certify his class.

The district court distinguished Harper and Portis based on Plaintiff’s change in “focus” 

in his renewed class certification motion and opined that this Court implicitly left open the 

possibility of class treatment where the constitutionality of a particular detention procedure was 

being challenged as long as the length of detention was not a central issue in the case. R. 92, pp. 

8-9.2

 However, the issue of how long a detainee was held after he was to be released is not only 

“a” central issue, but “the” central issue in this case, regardless of Plaintiff’s focus. See Harper, 

581 F.3d at 515. Plaintiff’s allegations in his second attempt at certification are the same as those 

made in his original class motion and clearly require the application of Harper and Portis. 

 2 The district court referred to this as an “overdetention plus” type of case in its earlier opinion denying 

Plaintiff’s motion for class certification. R. 52, p. 9.

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Moreover, the district court relied on cases where the length of time was not at issue and instead 

involved allegations of additional constitutional violations independent of merely being held in 

custody.3 These factual distinctions are significant and, as Plaintiff’s class lacks any such 

additional claims, Harper and Portis are clearly applicable and binding on the district court. In 

the absence of authority for Plaintiff’s claim not being governed by the decisions in Harper and 

Portis, review by this Court is warranted under Fed. R. Civ. P. 23(f). See Carnegie, 376 F.3d at 

658 (“the more novel the issue presented by the appeal and so the less likely that the district 

court’s resolution of it will stand . . . the stronger the case for allowing the appeal”). 

 For the above reasons, the district court erred in granting Plaintiff’s motion for class 

certification and this Court should accept Petitioner’s petition and reverse the order certifying 

Plaintiff’s class.

B. The district court abused its discretion by finding that Plaintiffs satisfied the 

predominance and superiority requirements of Rule 23(b)(3). 

 Rule 23(b)(3) allows for certification where the requirements of Rule 23(a) have been 

met, and where the Court finds that "questions of law or fact common to members of the class 

predominate over any questions affecting only individual members" and that "a class action is 

superior to other available methods for resolving the controversy." Fed. R. Civ. P. 23(b)(3). Rule 

23(b)(3)’s predominance requirement is “far more demanding” and the district court has “a duty 

to take a ‘close look’ at whether common questions predominate over individual ones.” Comcast, 

133 S. Ct at 1432. 

 In the instant case, the district court erred in its conclusion that Plaintiff met his burden 

and established the predominance requirement under Fed. R. Civ. P. 23(b). In order for a plaintiff 

 3 Streeter, Young, and Bullock all involved strip searches; Parish v. Sheriff of Cook County, 07 C 4369 

(N.D. Ill.) in which there is a pending motion to decertify the class, alleged there was an allegation of a 

policy denying or delaying the provision of necessary medication; and Jackson involved the testing of a 

detainees for sexually transmitted diseases by way of taking a penile swab. 

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to make a sufficient showing, he must demonstrate that common answers to common questions 

must not only exist, but must predominate over any necessary individualized inquiry. Comcast, 

133 S. Ct. at 1432 (emphasis added). Damages must also be susceptible to measurement across 

the entire class and questions of individual damages cannot overwhelm questions common to the 

class. See, e.g., Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds, 133 S. Ct. 1184, 

1196 (2013); Comcast, 133 S. Ct. at 1433 (reversing class certification where questions of 

individual damages in that case would “inevitably overwhelm” questions common to the class).

Here, there is no question that inquiry into each and every class member’s length of detention 

and any factors that would have increased that time,4

 as well as the individual facts and 

circumstances or events prior to that detainee’s discharge (e.g., being allegedly beaten up), must 

be made; therefore, Plaintiff did not satisfy the predominance requirement and the district court 

erred in certifying the class. See e.g., Amchem Prods. v. Windsor, 521 U.S. 591, 624-25 

(1997)(the fact that all members of proposed class were exposed to asbestos insufficient to 

satisfy predominance requirement where greater number of significant individual issues existed); 

Harper, 581 F.3d at 515 (“claiming that an issue predominates does not make it so”); see also

Portis, 613 F.3d at 705)(“Because reasonableness is a standard rather than a rule, and because 

one detainee’s circumstances differ from another’s, common questions do not predominate and 

class certification is inappropriate”); Hyderi v. Wash. Mut. Bank, FA, 235 F.R.D. 390, 398 (N.D. 

Ill. 2006)(Filip, J.)(a putative class representative cannot define the issues narrowly solely to 

meet the predominance requirement and “leav[e] all of the individual issues for follow-on 

proceedings. . .”).

 4

 For example, the distances between CCJ and the suburban courthouses ranges from 17 miles to the 

Bridgeview courthouse and up to 33 miles to the Rolling Meadows courthouse, with travel on some of the 

busiest highways in the State and often during “rush hour.” See R. 80, pp. 4-5 (citations omitted). 

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The district court’s decision to certify the class was also error because it is not a superior 

method in which to proceed. The likelihood of individuals proceeding with their own lawsuits –

rather than remaining in Plaintiff’s class – is evidenced by no fewer than four individual lawsuits 

currently pending in the Northern District making virtually the same allegations as those put 

forth by Plaintiff.5

Further, as this Court noted, “[i]f resolving a common issue will not greatly simplify the 

litigation to judgment or settlement of claims of hundred or thousands of claimants, the 

complications, the unwieldiness, the delay, and the danger that class treatment would expose the 

defendant or defendants to settlement-forcing risks are not costs worth incurring.” Parko v. Shell 

Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). A grant of class certification “can put considerable 

pressure on the defendant to settle, even when the plaintiff’s probability of success on the merits 

is slight. . . [and] some district judges may be tempted to use the class device to wring settlement 

from defendants whose legal positions are justified but unpopular.” Blair, 181 F.3d at 834.

Moreover, the possibility of a large judgment in a class action suit, even if only slight, can force 

a “blackmail settlement[ ]” and “judicial concern about them is legitimate, not ‘sociological.’” In 

re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298 (7th Cir. 1995). Whether or not this case 

would survive summary judgment may be an issue for another day, but it is almost undisputable 

that many – if not virtually all – of the class members will have nothing more than time for 

which to be compensated; the number of class members who missed a job interview or the birth 

of a child as a result of the delay in their discharge will likely be small or even non-existent. 

However, the possibility of settlement for reasons other than legal merit of the claims support 

this Court granting Petitioner’s request for permission to appeal pursuant to Fed. R. Civ. P. 23(f).

 5 See Johnson v. Dart, 13 C 7880 (Lee, J.); January v. Dart, 13 C 4766 (Pallmeyer, J.); Smith v. Dart, 13 

C 8223 (Tharp, J.); Shultz v. Dart, 13 C 3641 (Feinerman, J.). 

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II. The District Court’s Ruling Improperly Infringes on the Deference That 

Correctional Officials are Entitled to in the Administration of Cook County Jail

The effect of the district court’s decision is to impose restrictions upon CCJ on how 

detainees are to be released from custody. Courts of review, including the Supreme Court and the 

Seventh Circuit, have instructed courts to defer to the expertise and experience of jail officials in 

how to run a correctional facility. However, the district court disregarded established precedent 

and instead substituted its own judgment, despite Plaintiff’s failure to show, with any evidence, 

that the discharge procedure was not constitutionally permissible. 

As the Supreme Court cautioned, because “problems that arise in the day-to-day 

operation of a corrections facility are not susceptible of easy solutions...[p]rison 

administrators...should be accorded wide-ranging deference in the adoption and execution of 

policies and practices that in their judgment are needed to preserve internal order and discipline 

and to maintain institutional security." Bell, 441 U.S. at 547; see Block v. Rutherford, 468 U.S. 

576, 589 (1984)(courts may not engage in “an impermissible substitution of [our] view on the 

proper administration of [a correctional facility] for that of the experienced administrators of that 

facility.”). 

The district court concluded that Plaintiff’s claim was based on the processing of 

acquitted detainees in the same way as the rest of the detainees, specifically for commingling 

acquitted or “not guilty” detainees with other detainees and returning them to their cells in their 

respective living units. R. 92, p. 9. The conclusion that putting these two groups together or 

making detainees return to their cells is unconstitutional or improper is without any support in 

Seventh Circuit jurisprudence. 

This Court’s decision in Lewis demonstrates that the district court’s ruling was 

impermissibly overbroad and crossed into the province and expertise of jail officials. In Lewis, 

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the plaintiff was arrested on a warrant that was later found to be for a different person. 853 F.2d 

at 1367. After it was determined that the plaintiff was not the person named in the warrant, the 

judge entered an order which simply reflected that the plaintiff was not the person named in the 

warrant. 853 F.2d at 1369. The Court distinguished between an order from the judge to release 

the plaintiff and a release made pursuant to an administrative determination by the Sheriff, which 

in this case consisted of administrative steps to verify the plaintiff’s identity before releasing him 

and found this distinction to be “critical.” Id. The court noted that the Sheriff is “given wide 

discretion in releasing a discharged prisoner.” Id. (citing Bell, 441 U.S. at 547). Such discretion 

is evidenced by the fact that “judges do not ordinarily direct the sheriff as to when and how to 

release a prisoner.” Id. However, that is exactly what Plaintiff is asking this Court to do, contrary 

to established precedent and in light of a complete lack of evidence to support Plaintiff’s claim 

that his case is suitable for class treatment. See, e.g., Turner v. Safley, 482 U.S. 78, 84-85 

(1987)(courts are “ill equipped” to deal with prison administration and, because that task is 

“peculiarly within the province of the legislative and executive branches of government . . . [the] 

separation of powers concerns counsel a policy of judicial restraint”); Pell v. Procunier, 417 U.S. 

817, 827 (1974)(limitations on in-custody visitation is “peculiarly within the province and 

professional expertise of corrections officials, and, in the absence of substantial evidence in the 

record to indicate that the officials have exaggerated their response to these considerations, 

courts should ordinarily defer to their expert judgment in such matters”); Rapier v. Harris, 172 

F.3d 999, 1003 (7th Cir. 1999)(courts should defer to the expertise of correctional officials 

regarding implementation of measures related to pretrial confinement); see also Tully, 660 F. 

Supp. at 297 (“the court must be careful not to substitute its own judgments for the reasonable 

decisions of the Sheriff on matters of prisoner security.”).

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The district court’s decision is contrary to well-established Supreme Court and Seventh 

Circuit precedent and threatens to impose its own judgment as to the manner in which detainees 

should be discharged from CCJ without the required deference to the expertise of correctional 

officials. The district court impermissibly exceeded its role in certifying Plaintiff’s class without 

any evidence to justify its intrusion into the role of administration at the largest jail in the 

Country. Therefore, this Court should grant Defendant’s petition and reverse the district court’s 

decision certifying Plaintiff’s class.

CONCLUSION 

For these reasons, the district court abused its discretion in certifying Plaintiff’s class. 

Petitioners respectfully request that this Court grant them leave to appeal the district court’s 

order granting class certification and seek reversal and remand of that decision. 

ANITA ALVAREZ 

STATE'S ATTORNEY OF COOK COUNTY 

/s/ Anthony E. Zecchin 

Anthony E. Zecchin 

Assistant State’s Attorney 

500 Richard J. Daley Center 

Chicago, IL 60602 

(312) 603-3373

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CERTIFICATE OF SERVICE 

I hereby certify that on September 14, 2014, I electronically filed the foregoing with the 

Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the 

CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that 

service will be accomplished by the CM/ECF system. 

/s/ Anthony E. Zecchin 

 Anthony E. Zecchin 

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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BRIAN OTERO, individually and on behalf of ) 

a class of similarly situated individuals, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 12-cv-3148 

 ) 

THOMAS J. DART, SHERIFF OF COOK ) 

COUNTY, and COOK COUNTY ILLINOIS, ) 

 ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

AMY J. ST. EVE, District Court Judge: 

Plaintiff Brian Otero has sued the Cook County Sheriff for allegedly violating his Fourth 

and Fourteenth Amendment rights by detaining him in an unreasonable manner after a jury 

acquitted him of all charges.1 Plaintiff has filed an Amended Class Action Complaint on behalf 

of himself and all other similarly situated male inmates. (R. 56, Amended Class Action 

Complaint.) Before the Court is Plaintiff’s Renewed Motion for Class Certification. (R. 60, 

Mot.) For the following reasons, the Court grants Plaintiff’s motion with a modification of the 

class definition. 

BACKGROUND

Plaintiff Brian Otero filed his initial Complaint in April 2012, alleging that Defendants 

maintain an unlawful policy or practice of “detaining, holding in custody, or imprisoning free 

 

1

 Otero joined Cook County as a party pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 

(7th Cir. 2003). Cook County is an indispensable party to this suit because state law requires the county 

to pay judgments entered against the Sheriff’s Office in its official capacity. Id. To the extent that Otero 

alleged substantive claims against Cook County in the Complaint, the Court dismissed those claims under 

Rule 12(b)(6) on October 18, 2012. (See R. 24 at 12.) 

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citizens following a trial or other proceeding at which the citizen is found not guilty or otherwise 

acquitted.” (R. 1, Compl. ¶ 1.) Plaintiff alleged that “Defendants’ illegal policies and/or 

procedures” subjected class members to “being detained for unreasonable amounts of time and in 

an unreasonable manner.” (Id., ¶ 2.) Plaintiff moved to certify the following class: 

All males who were criminal defendants in Cook County, were detained at the 

time of trial or other proceeding and were found not guilty or otherwise acquitted 

at a trial or other proceeding and for whom the Sheriff’s Office no longer had any 

legal right to detain from April 27, 2010 through the present. 

(R. 41, Mot. for Class Cert. at 7, n. 5.) On December 20, 2013, the Court denied Plaintiff’s 

motion with prejudice to the extent that he sought to certify the class based on the alleged 

unreasonableness of the delay in releasing acquitted detainees from Cook County Jail, and 

without prejudice to the extent he sought to certify a class challenging one or more specific 

detention procedures applied to acquitted detainees. (R. 52.)2

 

On January 15, 2014, Plaintiff filed an Amended Class Action Complaint “on behalf of 

himself and other male inmates who were victimized by Defendant’s policy of unconstitutionally 

detaining, holding in custody and imprisoning free citizens following an acquittal or other 

favorable disposition of the charges brought against them.” (R. 56, ¶ 1.) Count I of the 

Amended Complaint alleges that this unlawful detention violates the Fourth and Fourteenth 

Amendments. Plaintiff specifically alleges that Defendants have: 

[A] policy or practice under which it shackles, transports and detains acquitted 

individuals to change back into their prison jumpsuit and be processed back into 

the general prison population. In fact, Defendant has conceded that it has no 

policies or procedures in place that distinguish acquittees from other inmates over 

whom Defendant has the continued right to detain or that in any way 

acknowledge an inmate’s right to freedom that he acquires by virtue of an 

acquittal or other favorable disposition of the charges brought against him. 

(Id. ¶ 8.) 

 

2

 The Court presumes familiarity with its December 20, 2013 Memorandum Opinion and Order denying Plaintiff’s 

motion for class certification. 

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With respect to his own circumstances, Plaintiff alleges that following his acquittal, and 

despite the fact that he had no other pending charges or warrants against him, Cook County 

Sheriff’s officers seized him and placed him in handcuffs. (Id., ¶ 17.) The Sheriff’s Officers 

then detained Plaintiff with other regular inmates in a number of different holding cells and 

ultimately processed him back into his Division within the general prison population. 

(Id.) Plaintiff also alleges that while he was detained after his acquittal, other inmates “punched 

and pummeled Plaintiff about the face and body” after they learned that he was acquitted and 

would be leaving jail. (Id. ¶ 18.) 

Plaintiff’s Amended Complaint adds a second count for a violation of the Equal 

Protection Clause of the Fourteenth Amendment as, Plaintiff alleges, “similarly situated female 

acquitted inmates are not subjected to these policies or practices, but rather are segregated from 

other inmates and not returned to their original jail cells.” (Id. ¶ 2.) Plaintiff asserts that these 

similarly situated females “are segregated from other inmates and are given the option to either 

remain in the receiving room or return to their jail cell while Defendant processes their release.” 

(Id. ¶ 10.) 

The parties have conducted class certification discovery and Plaintiff asserts the 

following facts in his motion for class certification. When a male detainee is acquitted or 

otherwise has the charges brought against him dismissed, he is immediately taken back into the 

custody of the Cook County Sheriff’s Office (“Sheriff’s Office”) and placed in a holding cell 

behind the judge’s chambers. The Sheriff’s Office then transports him to a larger holding cell 

known as the “bridge,” which is located in the basement of the criminal court building at 26th 

Street and California. The bridge consists of eight holding cells (known as “bullpens”), which 

hold new inmates as well as other inmates returning from court. Each bullpen holds 

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approximately 50 individuals at any given time. The Sheriff’s Office does not segregate or 

otherwise treat differently the acquitted detainees from the other inmates. 

Sheriff’s officers then transport the acquitted detainees along with the regular inmates 

through a tunnel that connects the criminal court building to the Cook County Department of 

Corrections (“DOC”). Upon arrival at the DOC, Sheriff’s officers hold the acquitted detainees 

with the regular inmates in another bullpen. Eventually, a transport team arrives and calls out the 

detainees one by one, handcuffs them, and transports them back to their respective Division. 

Upon arrival at the Division, the Sheriff’s Office identifies each detainee and returns all of the 

detainees to another holding cell. At some point, the Sheriff’s Office processes all of the 

detainees back into the Cook County Jail and their respective cells. 

Although the DOC has a written policy on handling court-ordered releases, that policy 

identifies procedures for processing an acquitted detainee’s release after he has already begun the 

process of transferring back into the general jail population. This DOC General Order, which 

addresses “inmate/detainee discharge procedures,” assigns responsibility for reviewing court 

documents for acquitted detainees to a “Transportation Officer.” There is no transportation 

officer assigned to the criminal courthouse at 26th Street and California. The DOC has no 

system or policy in place at the criminal court building to differentiate between acquitted 

detainees and other inmates. After the Sheriff’s Office returns the detainees to their jail cells, the 

DOC’s Records Office reviews the court documents from all of the returning inmates on that 

day. It is only after this process that the DOC retrieves the acquitted detainee from his cell, 

escorts him to an outtake area, verifies his identification, and releases him. 

Defendant has acknowledged that it treated Mr. Otero in the same exact manner as every 

other acquitted detainee. Defendant also has acknowledged that female inmates who are 

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acquitted or otherwise ordered to be released do not undergo the same procedure. Rather than 

automatically returning female acquitted detainees to the Cook County Jail, the Sheriff’s Office 

gives them the option of remaining in the receiving department or returning to their cells to 

collect and pack their own belongings. 

LEGAL STANDARD 

 To obtain class certification under Rule 23, a plaintiff must satisfy each requirement of 

Rule 23(a) – numerosity, commonality, typicality, and adequacy of representation – and one 

subsection of Rule 23(b). See Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 

2009); Oshana v. Coca–Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Once a party satisfies the 

requirements of Rule 23(a), he must meet one of the requirements of Rule 23(b). In this case, 

Plaintiff argues that class certification is appropriate under Rule 23(b)(3) or, in the alternative, 

Rule 23(b)(2) or 23(c)(4). (Mot. at 14.) A court may certify a Rule 23(b)(3) class where 

“questions of law and fact common to members of the class predominate over any questions 

affecting only individual members, and . . . a class action is superior to other available methods 

for fairly and efficiently resolving the dispute in question.” Fed. R. Civ. P. 23(b)(3). Under Rule 

23(b)(2), a court may certify a class where “the party opposing the class has acted or refused to 

act on grounds that apply generally to the class, so that final injunctive relief or corresponding 

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 

23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class 

action with respect to particular issues.”

In order to grant class certification under Rule 23, the Court must be “satisfied, after a 

rigorous analysis” that the Rule’s requirements are met. Wal-Mart Stores, Inc. v. Dukes, -- U.S. -

-, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011) (citation omitted). “‘Failure to meet any of 

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the Rule's requirements precludes class certification.’” Harper, 581 F.3d at 513 (quoting 

Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008)). Satisfaction of these requirements, on 

the other hand, categorically entitles a plaintiff to pursue his claim as a class action. See Shady 

Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559 U.S. 393, 398-99, 130 S. Ct. 1431, 176 L. 

Ed. 2d 311 (2009). The plaintiff bears the burden of proving each disputed requirement by a 

preponderance of the evidence. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 

(7th Cir. 2012). District courts have broad discretion in determining whether the plaintiff has 

satisfied this burden. See Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S. Ct. 2326, 60 L. Ed. 

2d 931 (1979); Messner, 669 F.3d at 811. 

ANALYSIS 

I. Rule 23(a) 

Plaintiff moves to certify the following class: 

All male inmates who while being detained by the Cook County Sheriff’s Office 

were found not guilty, were acquitted, had charges brought against them 

dismissed or otherwise received a judicial determination requiring their release 

and for whom the Sheriff’s Office no longer had any legal right to detain from 

April 27, 2010 through the present. 

Plaintiff argues that the proposed class satisfies the requirements of Rule 23(a) and Rule 

23(b)(3). When determining whether to certify a class, the Court must make an independent 

determination about the appropriateness of certifying the class. Davis v. Hutchins, 321 F.3d 641, 

649 (7th Cir. 2003). 

A. Numerosity 

Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is 

impracticable. Courts may not rely solely on the plaintiff’s allegations as to the size of a class or 

the impracticability of joinder, and instead may rely on evidence to prove class size. Szabo, 249 

F.3d at 676. In this case, Defendant has testified that on any given day the DOC could release 

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between 50 and 300 individuals, and that DOC’s records would be able to identify who was 

released pursuant to an acquittal or other court order. Further, Defendant does not address or 

challenge Plaintiff’s claim that he satisfies the numerosity requirement. The Court, therefore, 

finds that Plaintiff has satisfied the numerosity requirement. 

B. Commonality 

Rule 23(a)(2) requires the existence of questions of law or fact common to the class. 

“Commonality requires the plaintiff to demonstrate that the class members have suffered the 

same injury.” Wal-Mart Stores, Inc. v. Dukes, -- U.S. --, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 

374 (2011) (quotation and citation omitted). This requirement, however, does not mean that the 

proposed class members have merely “all suffered a violation of the same provision of law.” Id. 

Rather, the claims of a class must depend upon a common contention, and that contention must 

be capable of classwide resolution. Id. “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., -- F.3d -- (7th Cir. Aug. 22, 2014) (quoting Wal-Mart, 131 S. Ct. 

at 2551). “The critical point is the need for conduct common to members of the class.” Id. 

(citing IKO Roofing Shingle Prods. Liab. Litig., No. 14-1532, 2014 WL 2958615 (7th Cir. July 

2, 2014); Keele v. Wexler ,149 F.3d 589, 594 (7th Cir.1998). Where the defendant’s allegedly 

injurious conduct differs from class member to class member, courts are not likely to find 

common answers. Id. Where the same conduct or practice by the same defendant gives rise to 

the same kind of claims from all class members, however, there is a common question. Id. 

(citing cases). 

In Harper v. Cook County, 581 F.3d 511 (7th Cir. 2009), the Seventh Circuit reversed a 

district court’s class certification of detainees because it reasoned that the constitutionality of the 

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detentions at issue depended on whether the length of the delay before the detainee’s release was 

reasonable in any given case. This determination depended on “how long each detainee was held 

after bond was posted and what justifications there might be for the delay on that particular day 

or for that particular detainee.” Id. at 515. The Seventh Circuit identified various justifications 

that may exist for any given delay and determined that “liability, to say nothing of damages, 

would need to be determined on an individual basis.” Id. 

In Portis v. City of Chicago, 613 F.3d 702 (7th Cir. 2010), the Seventh Circuit reversed a 

district court’s decision to certify a Rule 23(b)(3) class in a case challenging the Chicago Police 

Department’s allegedly unconstitutional detention of individuals arrested for non-jailable 

offenses. The plaintiffs argued that taking more than two hours to process and release those 

individuals made their detention unreasonable in violation of the Fourth Amendment. Id. at 703. 

The Seventh Circuit held that the district court erred in prescribing a two-hour limit to this 

process, and that plaintiffs would need to show “that any particular detention was excessive.” Id. 

In making that determination, the Court would need to examine both the length of a given 

detention and the reasons why the release was deferred. Id.

Here, the Court previously dismissed Plaintiff’s initial attempt to certify the class because 

Plaintiff was unable to distinguish his class from the failed classes in Harper and Portis. 

Specifically, the Court found that “[t]he thrust of Plaintiff’s claim is that the Sheriff’s Office held 

acquitted detainees for an unreasonable amount of time after their acquittals,” and that “most of 

Plaintiff’s allegations focus on the allegedly unreasonable delay in his release, rather than the 

constitutionality of any specific detention procedures.” (R. 52 at 11.) The Court also noted, 

however, that the Seventh Circuit implicitly left open the possibility for class treatment where 

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the plaintiff challenges the constitutionality of a particular detention procedure as long as the 

length of detention is not a central issue in the case. See Harper, 581 F.3d at 514. 

While Plaintiff’s amended proposed class is largely the same as his initial proposed class, 

he has changed the focus of his claim. In his renewed motion for class certification, Plaintiff 

presents the following common questions of fact and law that he asserts apply to the unlawful 

detention claims of both Plaintiff and the proposed class: 

1. Whether Defendant lacked policies and procedures that acknowledge a male 

inmate’s right to freedom that he acquires by virtue of an acquittal or other 

favorable disposition of the charges brought against him; 

2. Whether Defendant maintains a policy or practice of detaining male citizens 

who were found not guilty or otherwise received a judicial determination 

requiring their release by seizing and handcuffing them, detaining and 

transporting them in the same holding cells as the other regular inmates, 

processing them back into the general prison population and continuing to hold 

them until running a check for outstanding warrants; and 

3. Whether such policies or practices (or lack thereof) are unconstitutional. 

(Mot. at 7-8.) Based on these questions, Plaintiff’s claim challenges Defendant’s alleged 

restriction of acquitted detainees’ right to freedom by treating them in the same manner as 

regular inmates returning to their cells in the general population of the Cook County Jail. Rather 

than focus on the length of time of Plaintiff’s post-acquittal detention, he now focuses on 

Defendant’s practice of grouping acquitted detainees together with regular inmates, and 

transporting them to their cells in the jail’s general population. Plaintiff’s equal protection claim 

further clarifies his new argument. Plaintiff’s equal protection claim is based on his allegation 

that Defendant segregates similarly situated female acquitted inmates from other inmates and 

does not return them to their jail cells. Rather, Defendant gives them the option to either remain 

in a separate receiving room or return to their jail cell while Defendant processes their release. 

(Am. Compl. at ¶¶ 2, 10.) 

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Defendant repeatedly acknowledges that it did not treat Plaintiff any differently than any 

other person who was scheduled to be discharged. (See, e.g., R. 60-2, Holmes Dep. Tr. at 10:1-

12 (agreeing that “Mr. Otero was treated exactly like any other person who at that time was 

scheduled to be discharged”); pp. 95:22-96:4 (acknowledging that “all the not guilties are treated 

also alike because they’re in the same group with everybody else who’s treated the same without 

differentiation”); pp. 111:14-17 (“Q: Now, this process I described is without exception 

applicable to everybody at the end of each day at trial. A: Yes.”).) Defendant’s alleged practice, 

therefore, was common as to each member of the class. Thus, the question of the 

constitutionality of this practice is also common to each class member. 

Defendant argues that Plaintiff cannot establish commonality because his claim fails to 

generate common answers, rather than common questions. (R. 80, Def. Resp. at 17.) Defendant 

asserts that no common answer can exist because the length of time that each class member 

remained in custody will invariably differ. (Id.) In support, Defendant identifies a number of 

variables – such as computer malfunctions, transportation issues, and the number of detainees on 

a given day – that can complicate the timing of a detainee’s discharge. As stated above, 

however, Plaintiff’s Amended Complaint and motion for class certification do not focus on the 

length of time that he remained in custody after acquittal. 

Defendant also argues that the number of detainees at Cook County Jail suffering from 

mental illness – approximately 20-30% of the population – defeats Plaintiff’s commonality 

argument. Defendant argues that these detainees require individualized discharges. (Id. at 18.) 

Plaintiff’s Amended Complaint and renewed motion for class certification identify a potential 

common “answer” that would satisfy his proposed class: that Defendant segregate acquitted male 

detainees from regular inmates following their acquittal. Defendant fails to explain how, 

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especially at this stage of the litigation, this solution would prevent the individualized attention 

that some acquitted detainees may require. 

In his renewed motion for class certification, Plaintiff has identified at least two factual 

and legal issues common to the class: whether Defendant maintains a policy or practice of 

treating acquitted detainees exactly as it does regular inmates until the acquitted detainee is 

processed back into the general jail population, and whether that policy violates the Fourth and 

Fourteenth Amendments. Further, Plaintiff presents a potential “answer” or solution that has the 

potential for class-wide resolution. The Court, therefore, finds that Plaintiff has met his burden 

with respect to commonality. 

C. Typicality 

“The commonality and typicality requirements of Rule 23(a) tend to merge.” Spano v. 

The Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011) (quoting General Telephone Co. of the 

Southwest v. Falcon, 457 U.S. 147, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). In analyzing the 

typicality requirement, the Seventh Circuit instructs that “there must be enough congruence 

between the named representative’s claim and that of the unnamed members of the class to 

justify allowing the named party to litigate on behalf of the group.” Id. Generally, “a claim is 

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

claims of the other class members and is based on the same legal theory.” Oshana v. Coca-Cola 

Co., 472 F.3d 506, 513 (7th Cir. 2006) (quotations omitted). “Although ‘the typicality 

requirement may be satisfied even if there are factual distinctions between the claims of the 

named plaintiff[] and those of other class members,’” the named plaintiff’s claims must share 

“the same essential characteristics as the claims of the class at large.” Muro v. Target Corp., 580 

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F.3d 485, 492 (7th Cir. 2009) (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 

232 (7th Cir. 1983)). 

Defendant asserts that Plaintiff cannot meet the typicality requirement because his class 

definition is far too broad. (Resp. at 22.) Defendant explains that Plaintiff’s proposed class 

would include “many different categories of detainees that are clearly and certainly distinct from 

Plaintiff.” (Id.) As an example, Defendant identifies detainees who have had charges dismissed 

via a nolle prosequi (nolle pros) or have had charges stricken with leave to reinstate (SOL). 

Defendant explains that these detainees are in a different position than Plaintiff, or any other 

detainee who has been acquitted, because they are not final adjudications and they do not 

preclude a subsequent indictment or reinstatement of charges. Defendant also contends that the 

proposed definition is too broad because it includes all detainees for whom there has been “a 

judicial determination requiring their release.” As Defendant asserts, this class could include, to 

name a few examples, (1) detainees whom a judge has ordered to be placed on electronic 

monitoring; (2) detainees who are to be released to another agency based on a warrant or other 

hold; (3) detainees who have been found unfit to stand trial and must be remanded to the Illinois 

Department of Human Services; (4) detainees who have posted bond; and (5) detainees who have 

been held on a probation violation and have been recommitted to probation. (Id. at 8-9, 23-24.) 

Plaintiff’s proposed class clearly focuses on detainees who have been acquitted or found 

not guilty. Plaintiff himself obtained a “not guilty” verdict from a jury following his trial. 

Plaintiff’s briefs are replete with references to “acquitted detainees” rather than the broader and 

amorphous category of those who have received “a judicial determination requiring their 

release.” (See, e.g., Mot. at 1 (“the challenged aspects of Defendant’s policy were applied in the 

same manner to all acquitted male detainees”); 2 (“when a detainee is acquitted in court ...”); 3 

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(“citizens who were acquitted that day are not segregated from the other inmates...”); 4 (“the 

Sheriff’s Office has no policies in place that distinguish acquittees from other inmates or that 

acknowledge their acquittal and right to freedom”).) Further, the first “common questions” upon 

which, Plaintiff asserts, the unlawful detention claims hinge, address a male inmate’s “right to 

freedom that he acquires by virtue of an acquittal or other favorable disposition of the charges 

brought against him.” (Mot. at 6.) 

The Court agrees with Defendant, in part, that Plaintiff’s proposed class is too broad to 

satisfy the typicality requirement. The types of detainees who might fall under the category of 

those for whom there has been “a judicial determination requiring release” includes detainees 

whose charges have not been dismissed. These detainees with pending criminal charges are not 

entitled to the same “right to freedom” as an acquitted detainee. The Court, however, disagrees 

with Defendant regarding detainees who have had charges dismissed by nolle prosequi or have 

had charges stricken with leave to reinstate. While the principle of double jeopardy does not 

apply to these types of detainees, the charges brought against them have been dismissed and they 

are entitled to the same freedom at the time of the dismissal as a detainee who has been 

acquitted. See People v. Norris, 214 Ill.2d 92, 104, 291 Ill. Dec. 629, 824 N.E.2d 205 (2005) 

(“[W]hen a nolle prosequi is entered before jeopardy attaches, the State is entitled to refile the 

charges against the defendant”); Ferguson v. City of Chicago, 213 Ill. 2d 94, 100, 289 Ill. Dec. 

679, 820 N.E. 2d 455 (2004) (“Where a case is stricken with leave to reinstate, the matter 

remains undisposed of. The same charges continue to lie against the accused, albeit in a dormant 

state”). 

The Court, therefore, finds that a modified class that includes only “those detainees who 

were found not guilty, acquitted, or had the charges brought against them dismissed” satisfies the 

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typicality requirement. Under this definition, there would be enough congruence between 

Plaintiff’s claim and the class members’ claims to allow Plaintiff to litigate on behalf of the 

group. See Spano, 633 F.3d at 586. The class definition may not, however, include the language 

“or otherwise received a judicial determination requiring their release.” 

D. Adequacy of Representation 

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect 

the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Adequacy of representation is composed of 

two parts: the adequacy of the named plaintiff’s 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) (quoting Sec’y of Labor 

v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986)(en banc). “A class is not fairly and 

adequately represented if class members have antagonistic or conflicting claims.” Id. (citations 

omitted). 

Defendant does not challenge the adequacy of Plaintiff’s counsel, but it does assert that 

Plaintiff would not be an adequate class representative because his criminal background, which 

includes multiple felony convictions, presents “serious credibility problems.” (Resp. at 25.) 

Defendant further notes that one of Plaintiff’s convictions is for possession of a stolen motor 

vehicle, which involves dishonesty. Plaintiff argues that both of his prior convictions occurred 

more than ten years ago when Plaintiff was a teenager. Further, neither conviction relates to the 

claims brought in Plaintiff’s suit. (R. 87, Reply at 8.) 

Defendant’s argument ignores that the proposed class members are all one-time inmates 

detained at Cook County Jail. The nature of the suit and of the proposed class means that all 

class members will at least have been arrested and detained, and some will likely have criminal 

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records and prior convictions. Defendant has not explained how Plaintiff’s criminal history 

differentiates him from the proposed class members. Further, if convicted felons could not serve 

as adequate class representatives, “there would be no such thing as a class action in the prison or 

jail context.” Parish v. Sheriff of Cook County, 07 C 4369, 2008 WL 4812875 at *5 (N.D. Ill. 

2008). 

Defendant also challenges Plaintiff’s adequacy as a class representative on the basis that 

there are too many divergent categories of class members, but the Court has already addressed 

this argument in the typicality analysis. Ultimately, the Court finds that there is no basis to hold 

that Plaintiff and his counsel will not fairly and adequately protect the interests of the protected 

class. 

II. Rule 23(b)(3) 

A. Predominance and Superiority 

A court may certify a Rule 23(b)(3) class where “questions of law and fact common to 

members of the class predominate over any questions affecting only individual members, and . . . 

a class action is superior to other available methods for fairly and efficiently resolving the 

dispute in question.” Fed. R. Civ. P. 23(b)(3). Predominance is similar to commonality but 

requires a “far more demanding” inquiry. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 

624, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997); Messner, 669 F.3d at 814. In broad terms, 

predominance requires that the “legal or factual questions that qualify each class member’s case 

as a genuine controversy” are “sufficiently cohesive to warrant adjudication by representation.” 

Messner, 669 F.3d at 814 (quoting Amchem, 521 U.S. at 623). It requires more than simply 

“counting noses” – i.e., “determining 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. 

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2014). Instead, predominance requires a qualitative decision regarding whether “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. 

Defendant makes a number of arguments explaining why Plaintiff fails to meet the 

predominance requirement. None are persuasive. Defendant argues that the large and diverse 

number of categories to which individual detainees could belong defeat the predominance of any 

one issue. The Court has already modified the class definition to address this concern. Plaintiff 

challenges what he alleges is a policy and practice that applies to all Cook County Jail detainees, 

who are found not guilty, acquitted, or otherwise have the charges against them dismissed. The 

predominant issue in this litigation will be the existence and constitutionality of that alleged 

practice. 

Defendant argues that it will be impossible for the Court to separate the time it takes to 

discharge a detainee from Plaintiff’s claims, and that the Court will have to analyze individually 

each detainee’s discharge. Defendant, however, seems to concede that it applies this practice to 

all detainees equally. Given the modified class definition, there will be no need to distinguish 

each detainee’s discharge. Defendant suggests that the proposed class members’ damages claims 

will vary on an individual basis and that this variance overwhelms any common issue. But 

Plaintiff is not required to establish common proof of damages for class members. Butler v. 

Sears, Roebuck and Co., 727 F.3d 796, 801 (7th Cir. 2013), cert. denied, 134 S. Ct. 1277 (2014). 

Indeed, “[i]t is very common for Rule 23(b)(3) class actions to involve differing damage awards 

for different class members.” De La Fuente, 713 F.2d at 233. Defendant also argues, in seeming 

contrast to its “time” argument, that Plaintiff’s detention claim remains the same, and that he has 

simply removed the time allegation. Plaintiff’s removal of the time allegation from the detention 

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claim shifts the focus of the claim away from the length of the post-acquittal detention, to 

Defendant’s practice of treating acquitted detainees no differently than regular inmates until they 

return to their cells. Plaintiff’s allegations now focus on a specific detention procedure, rather 

than the length of detention. Defendant’s argument also ignores Plaintiff’s new equal protection 

claim, which provides context to Plaintiff’s detention claim because it identifies the alternative 

release procedure that Plaintiff believes should apply to male detainees. 

A class action is the superior procedure for litigating these claims because the Court can 

determine the legality of the alleged practice and procedure in one proceeding. The proposed 

class might include hundreds, if not thousands of members, many of whom are unlikely to 

pursue their claims on their own. Even if damages vary among class members, the Court may 

hold separate liability and damages trials or appoint a magistrate judge to preside over individual 

damages proceedings. Butler,727 F.3d at 798; see also Arreola, 546 F.3d at 801. 

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CONCLUSION 

For these reasons, the Court grants Plaintiff’s motion for class certification. The Court 

certifies the following class under Rule 23(b)(3): 

All male inmates who while being detained by the Cook County Sheriff’s Office 

were found not guilty, were acquitted, or had charges brought against them 

dismissed, and for whom the Sheriff’s Office no longer had any legal right to 

detain from April 27, 2010 through the present. 

The Court designates Plaintiff Brian Otero as the class representative and appoints Myron 

M. Cherry and Jacie C. Zolna of Myron M. Cherry & Associates, LLC and Robert M. Foote of 

Foote, Mielke, Chavez & O’Neil, LLC as class counsel. 

DATED: September 2, 2014 ENTERED 

 ______________________________ 

 AMY J. ST. EVE 

 U.S. District Court Judge 

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