IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRIAN OTERO, individually, and )

on behalf of a class of similarly situated )

individuals, )

)

Plaintiff, ) Case No. 12 C 3148

)

v. )

)

THOMAS J. DART, Sheriff of Cook )

County and COOK COUNTY, ILLINOIS,1 )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

 On January 15, 2014, Plaintiff Brian Otero, individually and on behalf of a class of

similarly situated individuals, filed an Amended Complaint against Defendants Cook County

Sheriff Thomas J. Dart, in his official capacity, and Cook County, Illinois alleging violations of

his constitutional rights based on his post-acquittal detention at the Cook County Jail (“CCJ”),

which is administered by the Cook County Department of Corrections (“CCDOC”) as part of the

Cook County Sheriff’s Office.2

 See 42 U.S.C. § 1983. Before the Court is Plaintiff’s motion for

partial summary judgment and Defendant Dart’s motion for summary judgment brought pursuant

1

 Plaintiff joined Cook County as a Defendant in this action because state law requires

the County to pay judgments entered against the Sheriff in his official capacity. See Askew v.

Sheriff of Cook Cnty., 568 F.3d 632, 636 (7th Cir. 2009); Carver v. Sheriff of LaSalle Cnty., 324

F.3d 947, 948 (7th Cir. 2003); 55 ILCS 5/5–1002.

2

 Under Illinois’ County Jail Act, “[t]he Sheriff of each county in this State shall be the

warden of the jail of the county, and have the custody of all prisoners in the jail, except when

otherwise provided in the “County Department of Corrections Act.” 730 ILCS 125/2; see also

Moy v. County of Cook, 159 Ill. 2d 519, 526, 203 Ill.Dec. 776, 640 N.E.2d 926 (1994).
to Federal Rule of Civil Procedure 56(a) and Northern District of Illinois Local Rule 56.1. For

the following reasons, the Court grants Defendant’s motion for summary judgment in regard to

Plaintiff’s claim based on the Fourteenth Amendment’s procedural due process protections, but

denies the remainder of Defendant’s motion. The Court also denies Plaintiff’s motion for partial

summary judgment.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

Local Rule 56.1 “is designed, in part, to aid the district court, ‘which does not have the

advantage of the parties’ familiarity with the record and often cannot afford to spend the time

combing the record to locate the relevant information,’ in determining whether a trial is

necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local

Rule 56.1(a) requires the moving party to provide “a statement of material facts as to which the

moving party contends there is no genuine issue and that entitle the moving party to a judgment

as a matter of law.” Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). “The

non-moving party must file a response to the moving party’s statement, and, in the case of any

disagreement, cite ‘specific references to the affidavits, parts of the record, and other supporting

materials relied upon.’” Id. (citation omitted); see also L.R. 56.1(b)(3)(A). Local Rule

56.1(b)(3)(C) “requires specifically that a litigant seeking to oppose a motion for summary

judgment file a response that contains a separate ‘statement ... of any additional facts that require

the denial of summary judgment.’” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.

2012) (citation omitted). 

2
In general, the purpose of Local Rule 56.1 statements and responses is to identify the

relevant admissible evidence supporting the material facts, not to make factual or legal

arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (“statement of material

facts did [ ] not comply with Rule 56.1 as it failed to adequately cite the record and was filled

with irrelevant information, legal arguments, and conjecture”). “When a responding party’s

statement fails to dispute the facts set forth in the moving party’s statement in the manner

dictated by the rule, those facts are deemed admitted for purposes of the motion.” Cracco v.

Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). Moreover, “[e]vidence supporting or

opposing summary judgment must be admissible if offered at trial, except that affidavits,

depositions, and other written forms of testimony can substitute for live testimony.” Widmar v.

Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). 

The parties challenge many of each other’s Rule 56.1 Statements of Facts and Statements

of Additional Facts as not abiding by the Local Rules. The Court will consider these objections

within each statement and follow the Local Rule’s parameters as discussed immediately above. 

II. Relevant Facts

A. Procedural Background

On April 27, 2012, Plaintiff filed his original class action Complaint alleging that

Defendant Dart has a “policy or practice of unlawfully detaining, holding in custody or

imprisoning free citizens following a trial or other proceeding at which the citizen is found notguilty or otherwise acquitted.” (R. 1, Compl. ¶¶ 1, 36.) Plaintiff alleged that this policy or

practice was unreasonable in length and manner. (Id. ¶ 32.) After the Court granted in part and

denied in part Defendant’s motion to dismiss in October 2012, Plaintiff filed his first motion for

3
class certification pursuant to Rule 23(b)(3) on July 23, 2013. Because Plaintiff’s theory of

liability was based on the length of his post-acquittal detention, the Court denied Plaintiff’s

motion for class certification on December 20, 2013 under well-established Seventh Circuit case

law. See Portis v. City of Chicago, 613 F.3d 702, 705 (7th Cir. 2010); Harper v. Sheriff of Cook

Cnty., 581 F.3d 511, 514-15 (7th Cir. 2009). More specifically, “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.” Otero v. Dart, 306 F.R.D. 197, 200 (N.D.

Ill. 2014).

On January 15, 2014, Plaintiff filed his Amended Complaint alleging that Defendant Dart

“maintains a policy or practice of detaining, holding in custody and imprisoning male inmates in

an unreasonable manner with deliberate indifference to their constitutional rights following a

trial or other court appearance where the individual is found not guilty, is acquitted, obtains a

dismissal of the charges brought against him or otherwise receives a judicial determination

requiring his release.” (R. 56, Am. Compl. ¶ 27.) In addition, Plaintiff alleges that Defendant

“treats male inmates differently than similarly situated female inmates who were found not

guilty, were acquitted, obtained a dismissal of the charges brought against them or otherwise

received a judicial determination requiring their release.” (Id. ¶ 38.) Plaintiff bases his claims

on the Fourth Amendment, the Fourteenth Amendment’s substantive and procedural due process

protections, and the Fourteenth Amendment’s Equal Protection Clause.

4
Plaintiff then filed his renewed motion for class certification on January 30, 2014

changing the focus of his claims. Rather than relying on the length of his post-acquittal

detention, Plaintiff readjusted his claim to focus on Defendant’s practice of placing acquitted

detainees with regular detainees and transporting them from court back to their cells in CCJ’s

general population. See Otero, 306 F.R.D. at 204. Based on Plaintiff’s fine-tuning of his claim,

the Court granted Plaintiff’s motion for certification and certified 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.

Otero, 306 F.R.D. at 208.

B. Cook County Jail and Cook County Department of Corrections

The CCJ is one of the largest jail systems in the United States and is situated on a 96-acre

site at 26th Street and California Avenue in Chicago, Illinois. (R. 185, Def.’s Rule 56.1 Stmt.

Facts ¶ 15; R. 198, Pl.’s Stmt. Add’l Facts ¶ 1; R. 182, Pl.’s Rule 56.1 Stmt. Facts ¶ 4.)3 There

are fourteen courthouses in Cook County, including the criminal courthouse located at 26th

Street and California Avenue in Chicago. (Pl.’s Stmt. Facts ¶ 9.) Representatives from the

Sheriff’s Office estimate that staff transports approximately 800 to 1,000 CCJ detainees to and

from the numerous Cook County courthouses to the CCJ on any given day. (Id. ¶ 12.) The

3

 Defendant objects to Plaintiff’s reliance on Defendant’s own website, namely,

www.cookcountysheriff.org, arguing that Plaintiff has failed to lay a proper foundation to

authenticate this information. In general, records from government websites are selfauthenticating. See SEC v. Berrettini, No. 10 CV 1614, 2015 WL 5159746, at *6 (N.D. Ill. Sept.

1, 2015). 

5
CCDOC’s General Order 9.27, dated October 15, 1995, provides a framework for detainee

discharge procedures. (Id. ¶ 56.) 

C. Defendant’s Policies and Practices 

When a detainee is admitted to or discharged from the CCJ – whether he is being initially

admitted, ultimately discharged, or is traveling to and from court – the Sheriff’s Office processes

him through the Reception Classification Diagnosis Center (“RCDC”). (Def.’s Stmt. Facts ¶¶

15, 28; Pl.’s Stmt. Facts ¶ 23.) The RCDC operates in three buildings, including the basement of

Division V, the newly constructed RCDC building, and the “bridge” or basement level of the

criminal courts building at 26th and California. (Pl.’s Stmt. Facts ¶ 25.) The RCDC staff uses

the various holding cells in the RCDC throughout the day for different and varying purposes. 

(Id. ¶ 24.) 

Officers take detainees going from the CCJ to the criminal courthouse at 26th and

California through a bridge in the criminal courts building. (Id. ¶ 26.) The RCDC staff at the

bridge segregates the detainees into holding cells by courtroom location so the courtroom

deputies can retrieve and transport the detainees to their court appearances. (Id.) When staff

members transport detainees from the bridge to the courtrooms, they separate the detainees based

on whether they are going to the north or south side of the courtroom building and by courtroom

floor. (Id. ¶ 27.) Immediately before and after their court appearances, detainees are held in the

holding cells located behind the courtrooms. (Id. ¶ 28.) 

After their court appearances, staff members transport the male detainees – whether they

have had a judicial determination of discharge or not – to a holding area in the bridge of the

criminal courthouse. (Id. ¶ 49.) The bridge consists of eight holding cells (also known as

6
“bullpens”) that hold about 50 detainees at any given time. (Id. ¶ 50.) Thereafter, Sheriff’s

Office personnel transport the male acquittees along with other male detainees from the bridge

through the tunnel, and, ultimately, to the RCDC where an officer locks them up together in

another bullpen. (Id. ¶ 51; Def.’s Stmt. Facts ¶ 19.) When transporting detainees from the

bridge, officers segregate the maximum security detainees and the increased maximum security

detainees from the other detainees. (Pl.’s Stmt. Facts ¶ 52; Def.’s Stmt. Facts ¶ 38.) The staff

then transports the remainder of the detainees in groups that could be anywhere from 10 to 100

detainees depending on volume and staffing levels. (Pl.’s Stmt. Facts ¶ 52.) After staff members

place the male detainees in the RCDC holding cells, a transportation unit takes them back to

their respective living units within the CCJ. (Id. ¶ 53.) 

Once male acquittees – who have had a judicial determination of discharge – are back in

their living unit, the Records Division conducts its review of the court orders (“mittimuses”) and

creates a discharge packet. (Id. ¶¶ 55, 58; Def.’s Stmt. Facts ¶¶ 49, 51.) A Records Division

supervisor then reviews and approves the discharge packet, after which he or she sends the

packet to the RCDC for staff review. (Def.’s Stmt. Facts ¶ 67.) When the packet is returned to

the Records Division supervisor after the RCDC review, the supervisor conducts the final review

of the discharge packet. (Id.) An officer in the Discharge Unit then conducts an exit interview

of the detainee. (Id. ¶ 68.) When the detainee is ready for discharge, staff transport him to

Division V where CCDOC officials conduct a final check. (Id. ¶¶ 69, 70.)

With respect to female detainees who are found not guilty or otherwise acquitted in court,

a Sheriff’s officer conducts a pre-screening of the mittimuses to determine whether the female

detainee is a potential candidate for release. (Pl.’s Stmt. Facts ¶ 61; R. 201, Def.’s Rule 56.1

7
Stmt. Add’l Facts ¶ 13.) If the mittimus indicates a disposition of the female’s charges, an

officer then checks the jail management computer system to determine whether there are other

pending cases, warrants, or holds. (Pl.’s Stmt. Facts ¶ 63.) It only takes a few moments to look

at a mittimus to determine whether an individual is a potential candidate for release. (Id. ¶ 65.) 

Once the jail staff is aware of a female detainee’s favorable disposition, the staff member

commences the final review and release process for her. (Id. ¶ 66.) When the staff identifies a

potential female release candidate through the pre-screening process, they give her the option of

remaining in the RCDC pending the Records Division’s final review of her file. (Id. ¶ 68; Def.’s

Stmt. Add’l Facts ¶ 16.) A Sheriff’s Office employee then segregates the female detainees who

choose to remain in the RCDC to hold them separately from other detainees. (Pl.’s Stmt. Facts ¶

71; Def.’s Stmt. Facts ¶ 82.) Also, if a female detainee elects to remain in the RCDC, a staff

member places a call to her jail division so that an officer assigned to her former living unit can

collect her personal belongings. (Pl.’s Stmt. Facts ¶ 73.) 

D. Plaintiff’s Detention

Plaintiff Brian Otero was incarcerated at the CCJ following an arrest for burglary on

November 24, 2009. (Def.’s Stmt. Facts ¶ 6.) Almost one and a half years later, on July 21,

2011, a jury returned a not guilty verdict as to Plaintiff on the burglary charge. (Id. ¶ 7.) The

Cook County States Attorney tried Plaintiff with his brother for the burglary at the same time,

but the jury returned a guilty verdict as to Plaintiff’s brother. (Id. ¶ 8.) Following the jury

verdict, staff took Plaintiff to a holding pen in Division V with other detainees at which time the

other detainees overheard a conversation that the jury found Plaintiff not guilty. (Id. ¶ 9.) Three

unknown detainees then attacked Plaintiff causing him injury when he was in the Division V

8
holding cell on his way back from court. (Id. ¶ 10.) Thereafter, personnel transferred Plaintiff

back to his living unit, namely, Division VI of the CCJ. (Id. ¶ 13.) After the discharge

paperwork was completed, but before his release, staff returned Plaintiff to a holding cell in

Division V. (R. 185-2, Def.’s Ex. 2, Otero Dep., at 49-50.) 

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also Life Plans, Inc. v. Security

Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015). In determining summary judgment

motions, “facts must be viewed in the light most favorable to the nonmoving party only if there

is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167

L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that

there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary

judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine

issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). “To survive summary

judgment, the non-moving party must show evidence sufficient to establish every element that is

essential to its claim and for which it will bear the burden of proof at trial.” Life Plans, Inc., 800

F.3d at 349. 

9
ANALYSIS

I. Overdetention Claim – Count I

In Count I of the Amended Complaint, Plaintiff alleges that Defendant’s policies and

practices deprived him of his Fourth and Fourteenth Amendment rights. Plaintiff seeks to hold

Sheriff Dart liable under § 1983 because he is a lawmaker whose “edicts or acts may fairly be

said to represent official policy.” Monell v. Department of Social Servs., 436 U.S. 658, 694, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978). As discussed in the Court’s September 2, 2014 class

certification ruling, “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.” Otero, 306 F.R.D. at 204. More

specifically, Plaintiff contends that the Sheriff’s Office has no policies in place that distinguish

male acquittees from other detainees.4 In Count I, Plaintiff brings his overdetention claim

pursuant to the Fourteenth Amendment’s substantive and procedural due process protections, as

well as the Fourth Amendment’s prohibition against unreasonable seizures. Defendant Dart

moves for summary judgment regarding Plaintiff’s overdetention claim as alleged in Count I of

the Amended Complaint.

A. Fourth Amendment and Substantive Due Process 

1. Fourth Amendment

The Court first examines Defendant’s argument that the Fourteenth Amendment applies

under the circumstances and not the Fourth Amendment’s protections against unreasonable

4

 Although the certified class includes individuals who had judicial determinations of

discharge other than acquittal, for the sake of clarity, the Court refers to the class and policy as

involving post-acquittal detainees. 

10
searches and seizure. Defendant specifically argues that Fourth Amendment protections only

apply to detainees during the period of confinement between their arrest and the judicial

determination of probable cause. See Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir.

2011); Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir. 2006). Plaintiff’s claim, however,

is based on his post-acquittal confinement, and thus he was “a free citizen protected by the

Fourth Amendment.” Shultz v. Dart, No. 13 C 3641, 2013 WL 5873325, at *4 (N.D. Ill. Oct. 31,

2013) (after defendant “was sentenced to time served and told by the judge that he was free to

leave, he once again became a free person and thus protected by the Fourth Amendment.”); see

also Smith v. Dart, No. 13 C 8223, 2015 WL 1727341, at *2 (N.D. Ill. Apr. 13, 2015) (“after he

was acquitted, plaintiff was no longer in custody pursuant to legal process, the touchstone of

Fourteenth Amendment protection.”); cf. Lewis v. O’Grady, 853 F.2d 1366, 1372 (7th Cir. 1988)

(delay in “releasing an individual from custody could violate his fourth amendment rights”).5

The Court therefore turns to Plaintiff’s argument that he has presented sufficient evidence

creating an issue of material fact for trial that Defendant’s policy is unreasonable in violation of

the Fourth Amendment. “The test of reasonableness under the Fourth Amendment is not capable

of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct.

1861, 60 L.Ed.2d 447 (1979). In assessing the reasonableness of Defendant’s policy, the Court

5

 Defendant relies on Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988), for the

proposition that retaining custody over a detainee while tending to pre-release administrative

tasks is not per se unconstitutional, which is an accurate statement of law. Nevertheless, relying

on case law discussing the Fourth Amendment, the Lewis decision reversed the district court’s

directed verdict and remanded the case to allow a jury to determine whether the length of the

detainee’s detention was reasonable under the circumstances. See id. at 1367 (citing Gramenos

v. Jewel Co., Inc., 797 F.2d 432, 437 (7th Cir. 1986), and Moore v. Marketplace, 754 F.2d 1336,

1351 (7th Cir. 1985)).

11
examines “the nature and quality of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests at stake.” Graham v. Connor, 490

U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Fourth Amendment reasonableness

standard is inherently fact dependent. See Williams v. Indiana State Police Dep’t, 797 F.3d 468,

472 (7th Cir. 2015). 

Plaintiff’s argument that Defendant’s overdetention policy is unreasonable rests on

Defendant’s lack of policy for pre-screening acquitted male detainees for release and failure to

segregate them from the general population after they return from court – like Defendant’s

policy for acquitted female detainees. Due to this lack of policy, Plaintiff argues that the nature

and quality of his continued detention after acquittal was burdensome and unacceptably

dangerous, especially because Defendant no longer had any legal right to detain him. Plaintiff

has presented evidence in the form of the expert opinion of Jeffrey Schwartz, Ph.D. – that

Defendant does not challenge under Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) – raising an issue of fact

for trial that Defendant’s lack of policy subjects acquitted male detainees to unreasonable risks

of violence from other detainees and unreasonable risks of the jail staff’s use of force. Plaintiff’s

evidence concerning the general risk of violence at the CCJ is also supported by the testimony of

Defendant’s Rule 30(b)(6) witness and the RCDC’s Superintendent. (Pl.’s Stmt. Facts ¶¶ 16,

17.) 

On the other hand, examining the facts and all reasonable inferences in Plaintiff’s favor,

Defendant has failed to present sufficient evidence to establish – as a matter of law – that

countervailing governmental interests outweigh Plaintiff’s right to be released as a free man. 

12
Defendant, for example, suggests that it is necessary to process acquitted male detainees under

the present procedures due to volume and space constraints at the CCJ. As far as space is

concerned, there is evidence in the record that even during some of the busier times at the

RCDC, there are several unused male holding cells available, as well as additional unused space

on the first floor of Division V. (Pl.’s Stmt. Facts ¶¶ 87-89.) Equally important, Defendant’s

argument does not directly address why jail staff does not segregate male detainees with courtordered discharges from the other male detainees, especially because evidence in the record

creates a triable issue of fact that this category of detainees is a fraction of the detainees

returning from the Cook County criminal courthouses on any given day and that it only takes a

few seconds to verify a mittimus to determine whether an individual is a potential candidate for

release. (Pl.’s Stmt. Facts ¶¶ 12, 52, 65.) Furthermore, Plaintiff has presented evidence that the

Sheriff’s Office has the resources to segregate acquitted female detainees, as well as detainees

with “new bonds,” namely, individuals who have been in court, remanded to the Sheriff’s

custody, and are waiting for someone to post their bond. (Id. ¶ 37; 209-1, Johnsen Dep., at 26-

28.) 

In further support of the argument that countervailing governmental interests justify his

post-acquittal detention policy, Defendant Dart presents evidence and argues that the CCDOC’s

discharge procedures are acceptable by highlighting different factors that may cause reasonable

delays. Defendant, for example, points to traffic concerns when transporting detainees from the

many Cook County courthouses back to the CCJ, completing and processing paperwork, and

processing new detainees. (Def.’s Stmt. Facts ¶¶ 21-26, 30, 45-46, 59.) Defendant also argues

that the staff must conduct a complete review of an acquitted detainee’s paperwork, including

13
searching for outstanding warrants or holds. (Id. ¶¶ 54-58, 60-61, 63-68.) In response, Plaintiff

does not dispute that CCDOC personnel must process the necessary paperwork, verify court

orders, and check for outstanding warrants before releasing detainees – especially because the

question of delay or length of time concerning Plaintiff’s overdetention is not at issue in this

lawsuit. Indeed, in relation to these routine delays, Plaintiff explains that he “does not dispute

that such burdens and delays exist. They do. But they can and would be avoided altogether if

males were treated the same as females and allowed to remain outside of the general population

pending their release.” (R. 200, Pl.’s Resp. Brief, at 17.) Thus, Defendant’s argument based on

the reasonableness of the delay in releasing acquitted detainees is unavailing. 

Accordingly, viewing the evidence and all reasonable inferences in Plaintiff’s favor – as

the Court is required to do at this procedural posture – he has presented sufficient evidence

creating a genuine issue of material fact for trial that Defendant’s overdetention policy is

unreasonable under the Fourth Amendment. The Court thus denies Defendant’s summary

judgment motion in this respect. 

2. Substantive Due Process

The Court recognizes that if an action falls squarely within the Fourth Amendment’s

protections, such as an excessive force claim, substantive due process would not govern that

claim. See Graham, 490 U.S. at 395 (“where a particular Amendment provides an explicit

textual source of constitutional protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be the guide for

analyzing these claims.”). Because Defendant argues that the present claim does not fall “within

the ambit of those activities regulated by the Fourth Amendment” – and Plaintiff asserts a

14
substantive due process claim in the alternative – the Court also considers Plaintiff’s claim under

the Fourteenth Amendment’s substantive due process protections for the sake of completeness. 

See Belcher v. Norton, 497 F.3d 742, 754 (7th Cir. 2007); see also Villanova v. Abrams, 972

F.2d 792, 797 (7th Cir. 1992) (“Does the distinction between the two legal categories (search and

seizure, and due process) make any practical difference? Probably not, since whether the issue

[of continued confinement] is addressed under the Fourth Amendment or under the due process

clause, the benefits of confinement to the government must be compared with the costs to the

person confined.”).

“The touchstone of due process is protection of the individual against arbitrary action of

government,” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935

(1974), “whether the fault lies in a denial of fundamental procedural fairness, or in the exercise

of power without any reasonable justification in the service of a legitimate governmental

objective.” County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d

1043 (1998) (internal citations omitted). “[T]o determine whether due process requirements

apply in the first place” courts “must look to see if the interest is within the Fourteenth

Amendment’s protection of liberty and property.” Board of Regents of State Colleges v. Roth,

408 U.S. 564, 570-71, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). 

Here, Plaintiff has “a liberty interest in being free from incarceration absent a criminal

conviction.” Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992); see

also Slone v. Herman, 983 F.2d 107, 110 (8th Cir. 1993) (once order “suspending [inmate’s]

sentence became final and nonappealable, the state lost its lawful authority to hold [inmate]”);

Shultz, 2013 WL 5873325, at *5 (“The substantive component of the Fourteenth Amendment’s

15
due process guarantee recognizes that the detention of an individual without legal authority may

constitute a deprivation of liberty.”) Because Plaintiff has fulfilled this threshold requirement,

the Court turns to his substantive due process claim.

“[T]he Due Process Clause contains a substantive component that bars certain arbitrary,

wrongful government actions ‘regardless of the fairness of the procedures used to implement

them.’” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (citation

omitted). “In the context of substantive due process, the inquiry involves ‘an appraisal of the

totality of the circumstances rather than a formalistic examination of fixed elements.’” Holloway

v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1069 (7th Cir. 2012) (quoting Armstrong v. Squadrito,

152 F.3d 564, 570 (7th Cir. 1998)). In his summary judgment motion, Defendant Dart argues

that Plaintiff has failed to show that the totality of the Sheriff Office’s “actions rise to the level of

shocking the conscience that is required for a Fourteenth Amendment due process violation to

have occurred.” (R. 186, Def.’s Opening Brief, at 17.) To clarify, “the substantive component

of the Due Process Clause is violated by executive action only when it ‘can properly be

characterized as arbitrary, or conscience shocking, in a constitutional sense.’” Lewis, 523 U.S. at

847 (quotation omitted). 

In examining the “shocks the conscience” standard under the Supreme Court’s Lewis

decision, the Seventh Circuit explained that “less horrible conduct also violates substantive due

process.” Armstrong, 152 F.3d at 576. The Armstrong decision clarified that “the Court

endorsed the use of the deliberately indifferent standard for cases in which the defendants have

the luxury of forethought” explaining “that prison is the quintessential setting for the deliberately

indifferent standard because ‘in the custodial situation of a prison, forethought about an inmate’s

16
welfare is not only feasible but obligatory.’” Armstrong, 152 F.3d at 576 (quoting Lewis, 523

U.S. at 851). The Seventh Circuit thus concluded that “[i]f any doubt remained about whether

deliberate indifference could shock the conscience, the [Lewis] Court summed up with: ‘When

such extended opportunities to do better are teamed with protracted failure even to care,

indifference is truly shocking.’” Id. at 577 (quoting Lewis, 523 U.S. at 853). In other words,

“when the circumstances permit public officials the opportunity for reasoned deliberation in their

decisions, [courts] shall find the official’s conduct conscience shocking when it evinces a

deliberate indifference to the rights of the individual.” King ex rel. King v. E. St. Louis Sch. Dist.

189, 496 F.3d 812, 819 (7th Cir. 2007); see also Christensen v. County of Boone, Ill., 483 F.3d

454, 468 (7th Cir. 2007) (“it is often important to differentiate between situations in which the

state actor is acting under exigent circumstances and those situations in which the state actor is

working at a more deliberate pace.”). 

In response to Defendant’s summary judgment motion, Plaintiff asserts that his claim is

based on Defendant’s policy and practice that restricts acquitted detainees’ right to freedom by

treating them in the same manner as regular detainees returning from court, which is based on a

deliberative policy as opposed to any exigent circumstances. The Court agrees and applies the

deliberate indifference standard to Plaintiff’s claim. Under the Fourteenth Amendment’s

substantive due process protections, the Seventh Circuit defines “deliberate indifference as

‘conscious disregard of known or obvious dangers.’” Armstrong, 152 F.3d at 577 (citation

omitted). Put differently, “the defendant must have known that the plaintiff ‘was at serious risk

of being harmed [and] decided not to do anything to prevent that harm from occurring even

though he could have easily done so.’” Id. (citation omitted); see also Board v. Farnham, 394

17
F.3d 469, 478 (7th Cir. 2005). The Court also notes that it is well-settled that jail officials have a

duty to protect detainees from violent assaults at the hands of fellow detainees pursuant to the

Fourteenth Amendment. See Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008) (citing

Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). 

Plaintiff has presented evidence that detainees have filed lawsuits against Defendant Dart

and his predecessors regarding unsafe conditions due to the commingling of detainees of

different classifications, as well as in the specific context of overdetention, yet the Sheriff’s

Office has not altered its policies or General Order 9.27, which was promulgated twenty years

ago. Further, Plaintiff has presented Dr. Schwartz’s expert opinion that Defendant is and was on

notice that the CCJ is a dangerous place and that placing acquitted detainees among other

detainees increases their risk of harm based on the pervasive pattern of assaults when detainees

of different classifications are commingled. This evidence creates a triable issue of fact that the

Sheriff’s Office was aware of a substantial risk of harm to Plaintiff, yet did not take steps to

protect him from this danger. 

Defendant Dart, on the other hand, argues that the Seventh Circuit’s decision in Smith v.

Sangamon County Sheriff’s Dep’t, 715 F.3d 188 (7th Cir. 2013), forecloses Plaintiff’s claim. In

Smith, a detainee based his Fourteenth Amendment deliberate indifference due process claim on

the Sheriff’s security classifications arguing that this policy did not do enough to separate violent

from nonviolent detainees within the jail. See id. at 191. The Seventh Circuit rejected the

plaintiff’s claim because he failed to present any evidence that the classification policy created a

serious risk of physical harm to the detainees. See id. at 192. As discussed above, Plaintiff has

presented sufficient evidence creating a triable issue of fact to survive Defendant Dart’s

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summary judgment motion in this respect. 

 Next, relying on the deposition testimony of the RCDC’s Superintendent, Defendant

argues that returning acquitted detainees to their housing unit is a safer course of action than

holding detainees in bullpens or holding cells. This argument does not establish – as a matter of

law – that Defendant did not act with deliberate indifference based on Defendant’s failure to

separate acquittees while holding them in the various bullpens before returning the detainees to

their housing units. In fact, the RCDC’s Superintendent testified that holding detainees

collectively for long periods of time in bullpens creates tension. (R. 208-1, Johnsen Dep., at

163.) 

Defendant further attempts to ameliorate any showing of deliberate indifference by

setting forth evidence that the Sheriff’s Office “has implemented several measures over the last

few years to reduce the number of total hours it takes to process a detainee and to improve the

accuracy and efficiency of the discharge process.” (Def.’s Opening Brief, at 26.) Again,

Defendant’s argument focuses on the timing of the acquitted detainees release and not the risk of

harm resulting from commingling detainees in holding pens and returning them to their housing

units. 

Examining the facts and all reasonable inferences in Plaintiff’s favor, Plaintiff has

presented sufficient evidence creating a triable issue of fact that Defendant acted with deliberate

indifference under the circumstances. The Court therefore denies Defendant’s summary

judgment motion concerning Plaintiff’s Fourteenth Amendment substantive due process claim.

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B. Procedural Due Process 

Plaintiff also brings his overdetention claim under the Fourteenth Amendment’s

procedural due process protections. In evaluating procedural due process claims, courts engage

in a two-step analysis: (1) whether the plaintiff was deprived of a protected liberty or property

interest and (2) what type of process was due. See Hinkle v. White, 793 F.3d 764, 767 (7th Cir.

2015). Because Plaintiff has a protected liberty interest to be free from incarceration absent a

criminal conviction, the Court examines what process Plaintiff was due under the circumstances. 

“Generally, due process requires some kind of hearing before the State deprives a person of

liberty or property,” although, “in some circumstances [] a postdeprivation hearing or a

common-law-tort remedy satisfies due process.” Tucker v. Williams, 682 F.3d 654, 660 (7th Cir.

2012) (citations omitted). 

In support of his summary judgment motion, Defendant Dart argues that pursuant to

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the common law tort of

false imprisonment provides an adequate post-deprivation procedural safeguard under the

circumstances.6 See Schepers v. Commissioner of Ind. Dep’t of Corr., 691 F.3d 909, 916 (7th

Cir. 2012) (“in some circumstances, a deprivation of liberty or property might be the result of a

‘random and unauthorized’ act by a state official, and the aggrieved person is thus relegated to

post-deprivation remedies such as state tort actions.”). In Parratt, the Supreme Court “held that

a claim based on the due process clause of the Fourteenth Amendment is not actionable if the

alleged violation was the unauthorized act of a rogue state officer rather than an application of

6

 The Parratt doctrine does not apply to substantive due process claims. See Armstrong

v. Daily, 786 F.3d 529, 539-40 (7th Cir. 2015); Belcher v. Norton, 497 F.3d 742, 750 (7th Cir.

2007); Pena v. Mattox, 84 F.3d 894, 897 (7th Cir. 1996).

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state law or policy, as long as the state provides an adequate remedy for the wrongful act of its

employee.” Llovet v. City of Chicago, 761 F.3d 759, 761 (7th Cir. 2014); see also Armstrong,

786 F.3d at 539 (“Parratt is limited to a narrow category of due process cases where the plaintiff

claims he was denied a meaningful pre-deprivation hearing, but under circumstances where the

very notion of a pre-deprivation hearing would be impractical and even nonsensical, and where

the deprivation was not carried out through established state procedures.”). Because Plaintiff’s

claim is based on Defendant’s policies and practices, the Parratt doctrine does not apply, and

thus Defendant’s argument is without merit. See Schepers, 691 F.3d at 916 (citing Logan v.

Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)); see, e.g.,

Smith, 2015 WL 1727341, at *3 (“plaintiff is not complaining that state actors deviated, through

inadvertence or design, from a permissible state procedure,” instead, “he attacks the procedure

itself as unconstitutional, which is an actionable due process claim.”). 

Turning to what process was due under the circumstances, the Court recognizes that

“[d]ue process requires government to follow reasonable procedures for minimizing mistaken

deprivations of liberty.” Atkins v. City of Chicago, 631 F.3d 823, 827 (7th Cir. 2011). “While

the requirements of due process vary with the particulars of the proceeding, it is well-established

that the essential requirements of due process are notice and an opportunity to be heard.” Tom

Beu Xiong v. Fischer, 787 F.3d 389, 400 (7th Cir. 2015). “The purpose of notice under the Due

Process Clause is to allow an interested party to challenge the deprivation of a protected liberty

interest before it occurs” and the “case law involving what type of notice is required under the

Due Process Clause is numerous, and its applicability wide-spread.” Matamoros v. Grams, 706

F.3d 783, 790 (7th Cir. 2013). “The amount and timing of the process due when a deprivation of

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liberty or property (in the constitutional sense of these terms) is alleged varies with

circumstances.” Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir.

2006).

 In his response brief, Plaintiff does not explain what type of notice was required or the

nature of the process he was due under the circumstances – nor has Plaintiff cited legal authority

lending guidance to this question. After careful research, the Court has not found any legal

authority concerning what pre-deprivation process would be appropriate for Plaintiff’s

overdetention claim – most likely because the protections under substantive due process are a

better fit under the circumstances. See Barnes v. D.C., 793 F. Supp. 2d 260, 274-75 n.11

(D.D.C. 2011); see, e.g., Shultz, 2013 WL 5873325, at *5. To clarify, Plaintiff’s claim

essentially rests on the premise that no matter how much process Defendant could or would

provide, the substantive component of due process bars Defendant from unreasonably detaining

him after his acquittal. See Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997) (discussing

difference between substantive and procedural due process); see also Zinermon, 494 U.S. at 125

(procedural due process is “a guarantee of fair procedure”). 

In sum, construing the evidence and all reasonable inferences in Plaintiff’s favor, he has

failed to submit evidence to establish every element that is essential to his procedural due

process claim for which he will bear the burden of proof at trial. See Life Plans, Inc., 800 F.3d at

349. As such, the Court grants Defendant’s motion regarding Plaintiff’s procedural due process

claim. 

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II. Equal Protection Claim – Count II

In Count II of his Amended Complaint, Plaintiff alleges that Defendant’s overdetention

policy discriminates against acquitted male detainees based on gender. Both Plaintiff and

Defendant move for summary judgment as to Plaintiff’s Equal Protection claim. “The Equal

Protection Clause grants to all Americans the ‘right to be free from invidious discrimination in

statutory classifications and other governmental activity.’” D.S. v. E. Porter Cnty. Sch. Corp.,

799 F.3d 793, 799 (7th Cir. 2015) (quoting Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671,

65 L.Ed.2d 784 (1980)). “Gender is a quasi-suspect class that triggers intermediate scrutiny in

the equal protection context; the justification for a gender-based classification thus must be

exceedingly persuasive.” Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569,

577 (7th Cir. 2014) (citing United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135

L.Ed.2d 735 (1996)). This “burden is met only by showing at least that the classification serves

important governmental objectives and that the discriminatory means employed are substantially

related to the achievement of those objectives.” Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 723, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); see also Young v. County of Cook, 616

F. Supp. 2d 834, 853 (N.D. Ill. 2009). 

First, Defendant argues that Plaintiff has failed to establish the existence of sufficiently

different treatment of male and female detainees implicating constitutional concerns. In

particular, Defendant argues that the only way the Sheriff’s Office treats females differently than

males is that female acquittees have the option to either stay at the RCDC or return to their living

unit pending the processing of their discharge packet. Defendant’s argument fails to recognize

that Plaintiff has presented evidence creating a triable issue of fact that staff pre-screens female

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acquittees for discharge and gives preferential treatment when processing discharge packets of

female detainees. Moreover, Plaintiff has presented evidence establishing a triable issue that

Defendant’s policy and procedures for discharging acquitted female detainees are safer than the

policies in place for acquitted male detainees, and it is well-settled that jail officials have a duty

to protect detainees from violent assaults at the hands of fellow detainees pursuant to the

Fourteenth Amendment. Accordingly, Defendant’s first argument is misplaced.7

Next, Plaintiff argues that Defendant has failed in his burden of offering an “exceedingly

persuasive” justification for processing female acquittees differently than the male acquittees.

Looking to Defendant Dart’s justifications, he argues that the lower number of female detainees,

fewer female living units, and lower number of incidents among female detainees allows for the

different treatment because it is easier and less staff-intensive to transport and discharge female

detainees. (Def.’s Stmt. Add’l Facts ¶¶ 12, 14.) Defendant further contends that the important

governmental objective of safety in the CCJ underscores the need for gender-based differences

and that courts have counseled against micro-managing the day-to-day operations of jails and

prisons. See Wolfish, 441 U.S. at 545-46. In the context of prison and jail management, the

Supreme Court also teaches that there must be a “mutual accommodation between institutional

needs and objectives and the provisions of the Constitution.” Wolff, 418 U.S. at 556. 

In any event, Defendant’s argument that it is less staff-intensive and easier to discharge

female detainees is of no consequence in the Court’s analysis of Plaintiff’s Equal Protection

7

 Based on the argument that the CCJ’s present procedures do not result in different

treatment of male and female acquittees, Defendant asserts that the proper standard for Plaintiff’s

Equal Protection claim is the rational basis test. Under the circumstances, however, Plaintiff has

presented sufficient evidence of gender-based differences triggering intermediate scrutiny in the

equal protection context. See Hayden, 743 F.3d at 577.

24
claim because “[f]inancial constraints may not be used to justify the creation or perpetuation of

constitutional violations.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 392, 112 S.Ct.

748, 116 L.Ed.2d 867 (1992). Also, Defendant’s stated reasons do not show – as a matter of law

– that discharging acquitted female detainees differently then acquitted male detainees serves

“important governmental objectives and that the discriminatory means employed are

substantially related to the achievement of those objectives.” Hogan, 458 U.S. at 723; see also

Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983) (“the equal protection

clause of the fourteenth amendment [] requires that the party seeking to uphold a policy that

expressly discriminates on the basis of gender must carry the burden of showing an ‘exceedingly

persuasive justification’ for the differing treatment.”) (citation omitted). There is no doubt that

jail safety and security issues concern important governmental objectives, but Defendant fails to

establish that the procedures the Sheriff’s Office employs to discharged acquitted male detainees

substantially relate to that objective. See, e.g., Bullock v. Sheahan, 568 F.Supp.2d 965, 973

(N.D. Ill. 2008) (“The blanket strip search policy of all male potential discharges is not

substantially related to the achievement of prison safety and security as articulated by

defendants.”). 

To further underscore Defendant failing in his burden of showing that the different

treatment between acquitted male detainees and acquitted female detainees serves an important

governmental interest, Plaintiff presents the RCDC Superintendent’s testimony that he does not

know why female acquittees get the option to remain in the RCDC pending the final review of

their files as opposed to returning to their housing unit. (Pl.’s Stmt. Facts ¶ 69.) Although this is

a relevant fact for the jury’s consideration when determining Defendant’s rationale for the

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difference in treatment, it does not establish, as a matter of law, that Defendant’s justification for

a gender-based classification policy or procedure violates the Equal Protection Clause as

Plaintiff suggests.

Because both sides have presented evidence showing disputed material facts for a jury to

decide, the Court denies Defendant’s and Plaintiff’s summary judgment motions regarding

Plaintiff’s Equal Protection claim as alleged in Count II of the Amended Complaint. 

CONCLUSION

For these reasons, the Court grants in part and denies in part Defendant’s motion for

summary judgment [184] and denies Plaintiff’s motion for partial summary judgment [181].

Dated: January 7, 2016

ENTERED

______________________________

AMY J. ST. EVE

United States District Court Judge

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