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, 

 v. 

THOMAS J. DART, SHERIFF OF 

COOK COUNTY and COOK 

COUNTY, ILLINOIS 

Defendants. 

Case No. 1:12-cv-03148 

Honorable Amy J. St. Eve 

Magistrate Judge Michael T. Mason 

PLAINTIFF’S MOTION FOR CLASS CERTIFICATION 

AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Dated: July 19, 2013 

Myron M. Cherry 

Jacie C. Zolna 

MYRON M. CHERRY & ASSOCIATES, LLC 

30 North LaSalle Street, Suite 2300 

Chicago, Illinois 60602 

Phone: (312) 372-2100 

Robert M. Foote 

Kathleen Currie Chavez 

Peter Lawrence Currie 

Matthew J. Herman 

FOOTE, MIELKE, CHAVEZ & O’NEIL LLC 

10 West State Street, Suite 200 

Geneva, Illinois 60134 

Phone: (630) 232-7450 

 

Attorneys for Plaintiff and the Class

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I. INTRODUCTION

Plaintiff has brought this action on behalf of himself and others who were victimized by 

Defendant’s policy of unconstitutionally detaining free citizens following acquittal at trial. 

Rather than expeditiously freeing those found not guilty of the charges against them, Defendant 

instead manacles them, herds them together with inmates of the general prison population, and 

subjects them to a labyrinthine ordeal during which they are locked and confined in a series of 

holding cells and – having been forced once again to don prison-issue jumpsuits – even returned 

to their original jail cells precisely as if they had been found guilty of the most heinous of crimes. 

And then they wait. And they continue to wait, generally for several hours, until Defendant finds 

the time to complete a post-acquittal check for warrants and to navigate a host of other 

administrative checkpoints that have been needlessly interposed between these prisoners’ 

supposed victories at trial and their freedom-in-fact. As two commentators recently remarked 

about this astonishingly everyday travesty: 

That doesn’t happen in the United States, right? Wrong. As several acquitted 

defendants in Cook County will tell you, this is not a make-believe scenario. It is 

standard policy in Cook County. And it’s unconstitutional and should be 

changed. 

Terrence J. Truax and Sarah F. Weiss, Not guilty, but not free: Cook County violates rights of the 

acquitted, Chicago Dailey Law Bulletin, April 29, 2013 (Volume 159, No. 84), a copy of which 

is attached hereto as Ex. A. 

 Nor does Defendant contest the key facts of this case. Defendant unhesitatingly admits 

that, although detainees like Plaintiff “acquire rights as to [their] freedom ... as a result of [a] not

guilty verdict,” the Sherriff’s Office has no “procedures [in place] to protect his rights as a free 

man ... when he is in the Sheriff’s possession after he has been declared a free man and has 

acquired the rights of being a free man....” Deposition of Michael Charles Holmes (“Holmes 

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2 

Dep.”), pp. 34:6-35:13, 58:8-16, attached hereto as Ex. B. In short, Defendant “do[es]n’t have 

any system in place to differentiate between murderers and people who are acquitted at the end 

of each trial day.” Id., p. 105:2-9; see also id., pp. 103:24-104:9 (“[T]he fact that [an inmate] 

was acquitted is not taken into consideration at all at the end of that day.... His acquittal’s – 

hasn’t had any impact so far. On the system. He’s been acquitted, but [Defendant does not] 

officially recognize[] it in any way.”). 

But because individuals who are found not-guilty or are otherwise acquitted are free 

citizens entitled to a prompt release, the practices employed by Defendant violate their 

constitutional rights. Indeed, detaining and transporting innocent citizens in the same holding 

cells with other inmates not only substantially and unnecessarily increases the procedural steps 

for releasing the individual, but also creates a serious risk that the individual will be the victim of 

a violent assault.1

 The same is true with Defendant’s practice of processing every acquitted 

inmate back into the actual prison population only to process the individual out several hours 

later. There can be no possible justification for these practices, particularly since there are no 

longer any flight or safety concerns with respect to these free citizens. Indeed, Defendant’s own 

recent practices have demonstrated that its violations of the constitutional rights of Plaintiff and 

the class are entirely avoidable. See Bullock v. Dart, 599 F. Supp. 2d 947, 953-54 (N.D. Ill. 

2009) (discussing Defendant’s very different post-acquittal treatment of female acquittees who 

“are segregated into a separate bullpen within the RCDC while the [staff] reviews their records 

to determine if they are eligible for release” and then “may elect whether to return to their 

 

1

In fact, this is exactly what happened to Plaintiff. While being detained in a holding cell with other 

inmates after his acquittal, other inmates asked Plaintiff about the outcome of his trial. After informing 

them that he had been found not guilty and would be leaving jail, some of the inmates punched and 

pummeled Plaintiff about the face and body. See Complaint (Doc. 1), ¶¶ 30-31, attached hereto as Ex. C;

Deposition of Brian Otero, pp. 25:4-26:18, attached hereto as Ex. D. 

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divisions to retrieve their personal property ... or instead to be discharged immediately and 

return within thirty days for their personal property.”). 

Moreover, every acquitted male inmate during the relevant time period was subjected to 

the very same practices. As Defendant’s Rule 30(b)(6) representative admitted: 

Q. Is it your testimony that Mr. Otero was treated exactly like any other 

person who at that time was scheduled to be discharged? 

A. Yes. 

*** 

Q. Okay. So there’s no difference between how, according to your testimony 

and the Sheriff’s testimony, how Mr. Otero was treated in terms of his 

discharge than any other person who would be in a class just like Mr. 

Otero for these purposes. 

*** 

A. According to my testimony, yes. 

Holmes Dep. (Ex. B), p. 10:1-12. 

Because the challenged aspects of Defendant’s policy were applied in the same manner to 

all acquitted male detainees this case is suitable for class treatment. Indeed, the predominant 

issue in this case is whether such aspects render Defendant’s policy unconstitutional, the 

resolution of which would apply equally to Plaintiff and every other class member. The Court, 

therefore, should certify this case as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 

II. FACTUAL BACKGROUND

The Cook County Department of Corrections (“DOC”) is located at 26th Street and 

California Avenue in Chicago, Illinois. The DOC is a three- to five-minute-walk from the 

Circuit Court building, which is connected to the DOC by a tunnel. See Holmes Dep. (Ex. B), 

pp. 14:6-9, 17:17-20, 19:8-11. The Sherriff’s Office at the DOC maintains a file for every 

inmate, which is constantly updated and includes, among other things, a LEADS report (i.e., a 

warrant check), documents from other agencies and all court documents reflecting, among other 

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things, all pending cases on which the inmate is being held. Id., pp. 151:3-153:10. The 

Sherriff’s Office also maintains an electronic file for each inmate, which shows, among other 

things, all pending cases pertaining to such inmate. Id. p. 176:15-25. Therefore, according to 

Defendant, it would be a “relatively quick operation” to determine whether an inmate was being 

detained on more than one case. Id., p. 177:1-5. 

When a detainee is acquitted in court, he is immediately taken into the custody of the 

Sherriff’s Office and placed in a holding cell behind the judge’s chambers. Id., pp. 78:23-79:1, 

80:7-8. The acquittee remains in this holding cell until a Sheriff’s Deputy transports him to a 

larger holding area – referred to as the “bridge” – located in the basement of the Circuit Court 

building. Id., pp. 83:15-84:20, 86:16-22. The bridge consists of eight holding cells (known as 

“bullpens”), which hold new inmates as well as other inmates returning from court. Id., pp. 

99:24-100:19. About 50 individuals are held in each bullpen at any given time. Id. The free 

citizens who were acquitted that day are not segregated from the other inmates, but rather are 

comingled with inmates who were convicted, remanded to the Sheriff’s custody or otherwise 

returning from court. Id., 82:17-83:11, 90:6-91:5, 95:5-21. As Defendant explained: 

Q. The not guilty person is treated along with the groups of the guilty person at that 

point at the bridge, with no differentiation made. 

A. Correct. 

Q. And 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. 

A. Correct. 

Id., pp. 95:22-96:4. 

 Acquittees are then transported along with convicts and other inmates of indeterminate 

guilt from the bridge through the tunnel to a receiving room at the DOC where they are all 

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locked up together in yet another bullpen. Id., pp. 107:5-10, 108:13-20. Eventually, a transport

team arrives, and the detainees are called out one by one, handcuffed side-by-side, and 

transported back to their Division. Id., pp. 108:21-112:19. At the Division, they are ID’d and 

locked together into another holding cell. Id., pp. 113:8-17, 116:4-13. After yet more time 

passes, all of the detainees – acquittees and convicts alike – are processed back into the jail and 

brought to their respective living units. Id., pp. 116:4-25, 117:9-25. 

 Defendant acknowledges that “all acquitted inmates go through this process” and that it 

“is without exception applicable to everybody at the end of each day at trial.” Id., pp. 111:14-17, 

117:17-19. While Defendant has a written policy on handling court-ordered releases, that policy 

dictates procedures for processing an acquittee’s release only after he has already begun being 

transported and processed back into the general prison population. See General Order 9.27, 

Section III.C., attached hereto as Ex. E.

2

 Prior to that point in the process, the Sherriff’s Office 

has no policies in place that distinguish acquittees from other inmates or to timely deliver courtordered releases to the DOC. See Holmes Dep. (Ex. B), pp. 103:24-105:13; 156:24-157:10. 

 While an acquittee sits, waiting in his jail cell, the DOC’s Records Office reviews the 

court documents from all of the returning inmates from that day. Only at this point do the DOC 

policies begin to recognize his status as a prisoner acquitted of all charges; but even this is but 

the beginning of an ongoing process of reviewing the still-imprisoned citizen’s file considering 

the possibility of his release. This policy and process requires yet another warrant check despite 

the fact that the acquittee’s file already includes a warrant check. See Holmes Dep. (Ex. B), p. 

151:7-21. The additional warrant check can take up to another two hours, during which time the 

acquittee sits and waits in his jail cell. Id., p. 140:7-22. Moreover, Defendant intentionally waits 

 

2

 While Section III.C.1 of General Order 9.27 states that a “Transportation Officer” shall separate court 

documents into categories, including possible discharges, there is no Transportation Officer assigned to 

transportations from the 26th and California courthouse. See Holmes Dep. (Ex. B), p. 178:1-6. 

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several hours before they even start this process because, as Defendant’s representative put it, 

they want to wait until “the last second possible.” Id., p. 148:14-25. 

Finally, the acquittee is retrieved from his cell and brought to an outtake area where his 

identity is verified and he is released to the upper floor to be led through yet two more 

checkpoints. Id., pp. 187:11-189:17.3

 Plaintiff was subjected to these same exact procedures 

after his acquittal, which resulted in him being released from the DOC at approximately 3:00 

AM on July 22, 2011 despite the fact that he was acquitted almost nine hours earlier, at 6:20 PM 

the previous day. See Deposition of Brian Otero (Ex. D), pp. 34:22-24, 51:10-14.4

III. ARGUMENT

The Court should certify this case as a class action because all of the prerequisites of Rule 

23 are met. Under Rule 23(a), class certification is appropriate if: (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, and (4) the plaintiff will fairly and adequately protect the interests of the class. If

these four factors are met, the proposed class must also satisfy one of the Rule 23(b) 

 

3

 The only time constraint contained in Defendant’s written policy requires that once a call is placed to the 

Division after the Records Office completes the paperwork and warrant check, the Division officer then

has two hours to bring the acquittee to the receiving unit. See General Order 9.27, Section III.C.3.d. (Ex. 

E). The call that initiates this limited time period, however, takes place after the acquittee has already 

been subjected to several hours of detention with other inmates and processed back into the jail, and it 

only pertains to the time it takes to bring the acquittee from the jail cell to the receiving area. See Holmes 

Dep. (Ex. B), pp. 165:11-167:10. 

4

 There have been two prior class actions which involved allegations that the Cook County Sherriff’s 

Office detained individuals for an unconstitutional period of time after their legal release from custody. 

See Watson v. Sheahan, 94-cv-6891, 1998 WL 708803, *1 (N.D. Ill. Sept. 30, 1998) (“This case was 

brought under 42 U.S.C. § 1983 on behalf of a class of individuals who were allegedly detained for an 

unconstitutional period of time after their legal release from custody.”) and Bullock v. Sheahan, 568 F. 

Supp. 2d 965, 976 (N.D. Ill. 2008) (denying summary judgment on Plaintiffs’ claim that “they were 

subjected to unreasonable delays in being released from the CCDC after receiving court-ordered 

discharges”). Despite the fact that these two prior cases resulted in multi-million dollar settlements in 

1998 and 2011 respectively, the Sherriff’s Office has not amended any of its procedures with respect to 

releasing acquitted individuals. See Holmes Dep. (Ex. B), pp. 175:4-176:14. 

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prerequisites. Here, Plaintiffs seek certification under Rule 23(b)(3) and, therefore, must 

demonstrate that common questions of law or fact predominate over any individual issues and 

that a class action is superior to other methods for fairly and efficiently litigating the claims. 

This proposed class should be certified because all the requirements of Rule 23 are met.5

A. The Size of the Class Easily Satisfies the Numerosity Requirement 

 The putative class undoubtedly meets the numerosity requirement of Rule 23(a)(1). The 

class includes all male detainees in Cook County who were found not guilty or otherwise 

acquitted between April 27, 2010 and the present. According to the Sherriff’s Office, 

approximately 50 to 300 individuals are released from the DOC every day, at least several of 

whom Defendant’s records would show are being released due to an acquittal. See Holmes Dep. 

(Ex. B), pp. 69:22-25, 138:2-8. The class, therefore, likely comprises thousands if not tens of 

thousands of members. See Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 

(7th Cir. 1969) (151 potential class members sufficient to satisfy numerosity requirement). 

B. There Are Common Questions of Law and Fact 

The commonality element of Rule 23(a)(2) is satisfied here because there are questions of 

law or fact common to the class. To satisfy this requirement, the class claims “must depend 

upon a common contention” that “must be of such a nature that it is capable of classwide 

 

5

 Based on Defendant’s admission that all individuals who were in its custody and who were found not 

guilty or otherwise acquitted were subjected to the same release policies described above, and based on 

the findings in Bullock, 599 F. Supp. 2d at 953-54 that female acquittees were subjected to a different set 

of procedures, the class definition set forth in the Complaint should be amended as follows: 

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 Sherriff’s Office no longer had any legal right to 

detain from April 27, 2010 through the present. 

See Savanna Grp., Inc. v. Trynex, Inc., 10-cv-7995, 2013 WL 66181, *2-3 (N.D. Ill. Jan. 4, 2013) 

(permitting plaintiff to modify class definition in class certification motion without necessity of filing an 

amended complaint). 

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resolution – which means that determination of its truth or falsity will resolve an issue that is 

central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 

131 S. Ct. 2541, 2545 (2011). “The fact that there is some factual variation among the class 

grievances will not defeat a class action.” Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 

1992). Rather, a “common nucleus of operative fact is usually enough to satisfy the 

commonality requirement of Rule 23(a)(2).” Id. at 1118. 

Here, the claims of both Plaintiff and class members hinge upon the following common 

questions of fact and law: 

1) the existence of a policy or practice of detaining citizens who were found not-guilty or 

otherwise acquitted 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 for several hours until running a check for 

outstanding warrants; and 

2) whether such a policy or practice is unconstitutional. 

 Defendant has admitted to maintaining the procedures in question and to applying those 

procedures equally to every single acquitted detainee. See Holmes Dep. (Ex. B), pp. 10:1-12 

(admitting that “there’s no difference between how ... [Plainitff] was treated in terms of his 

discharge than any other person who would be in a class just like [Plaintiff]”), p. 69:22-70:11 

(stating that all “people to be released ... would be treated exactly the same under [the Sherriff’s] 

office’s procedures”), pp. 95:22-96:4 (“[A]ll the not guilties are treated ... alike because they’re 

in the same group with everybody else who’s treated the same without differentiation.”), p. 

105:10-13 (“[A]ll acquitted people are treated the same as every other acquitted person in the 

mix with the criminals.”), p. 108:13-20 (“Q. But this system I described ... that’s all true in any 

given day for everybody in the courthouse.... A. Correct.”), p. 111:14-17 (“Q. [T]his process I 

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described is without exception applicable to everybody at the end of each day at trial. A. Yes.”), 

p. 117:9-19 (“[A]ll acquitted inmates go through this process.”). 

 The constitutionality of Defendant’s policy is also common to each class member, and 

the resolution of this issue will apply with equal force to the entire class “in one stroke.” Dukes, 

131 S. Ct. at 2545.; see also Arreola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008) (finding 

detainees’ claims challenging the constitutionality of a medical policy met commonality 

requirement); Young v. County of Cook, 06-cv-552, 2007 WL 1238920 (N.D. Ill. Apr. 25, 2007) 

(finding commonality requirement met in strip-search class action because “the claims of both 

proposed classes are premised upon contentions that the defendants acted pursuant to policies 

and standard practices that were common to all class members.”); Streeter v. Sheriff of Cook 

Cnty., 256 F.R.D. 609, 612 (N.D. Ill. 2009) (same); Parish v. Sheriff of Cook Cnty., 07-cv-4369, 

2008 WL 4812875, *4 (N.D. Ill. Oct. 24, 2008) (“[P]laintiffs have identified two factual and 

legal issues common to the class: whether defendants enforce the alleged policy and whether that 

policy violates the Fourteenth Amendment. *** Plaintiffs’ claims clearly share the same legal 

theory and therefore meet the commonality requirement.”); Jackson v. Sheriff of Cook Cnty., 06-

cv-0493, 2006 WL 3718041, *4 (N.D. Ill. Dec. 14, 2006) (finding class action challenging jail’s 

standardized STD testing met commonality requirement); Barnes v. Dist. of Columbia, 242 

F.R.D. 113, 122 (D.D.C. 2007) (certifying class of inmates alleging they were unreasonably 

detained after release date, finding that whether “the overdetention ... practices were municipal 

policies and whether [they] violated the Constitution” were common questions that satisfied the 

requirements of Rule 23(a)(2)); Bynum v. Dist. of Columbia, 214 F.R.D. 27, 34 (D.D.C. 2003) 

(same). 

 For these reasons, the commonality element of Rule 23(a)(2) is satisfied. 

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C. Plaintiff’s Claims Are Typical of the Class 

 Rule 23(a)(3) is satisfied because Plaintiff’s claims are typical of the claims of other class 

members. “A plaintiff’s claim is typical if it arises from the same event or practice or course of 

conduct that gives rise to the claims of other class members and his or her claims are based on 

the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 

1983). “Whether [a plaintiff’s] claims are typical of those of the class members she represents is 

closely related to the commonality inquiry.” Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998). 

Indeed, “[a] finding that commonality exists generally results in a finding that typicality also 

exists.” Levitan v. McCoy, 00-cv-5096, 2003 WL 1720047, *4 (N.D. Ill. Mar. 31, 2003). “The 

Rule does not require that each member of a class suffer exactly the same injury as the named 

class representative.” Id. “Even when factual differences exist, similarity of legal theory 

satisfies the requirement.” Id. 

Here, the typicality requirement is plainly met. The named Plaintiff’s claim arises out of 

the very same policy that was applied in the very same manner to every single class member. In 

other words, the named Plaintiff’s claim and the claims of other class members arise under 

common legal theories and are based on the same conduct. See, e.g., Bynum, 214 F.R.D. at 34 

(finding that plaintiff in proposed over-detention class action met typicality requirement, noting 

that “[d]espite the varying lengths of each named plaintiffs’ overdetention ... all members of the 

class are advancing the same legal theory based on the same set of facts, namely, that their 

constitutional rights were violated when they were detained later than their release period”). 

Accordingly, the typicality requirement of Rule 23(a)(3) is satisfied. 

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D. Plaintiff and His Counsel Will Fairly and Adequately Represent the Class 

Plaintiff and his counsel will fairly and adequately represent and protect the interests of 

the class. First, there are no antagonistic interests or conflicting claims between Plaintiff and the

class he represents. Rather, Plaintiff’s interest in pursuing claims based on common legal 

theories coincides with the interests of the members of the class. Second, Plaintiff has retained 

attorneys who are nationally-known litigators with decades of experience in class actions and 

other complex litigation, who are ready, willing and able to vigorously prosecute this action on 

behalf of the class. See Firm Backgrounds, attached hereto as Ex. F and Ex. G. The 

requirements of Rule 23(a)(4) are therefore satisfied. 

E. Issues Common to the Class Predominate 

 The requirements of Rule 23(b)(3) are met here because the common issues of law and 

fact predominate over any individuals issues that may exist and a class action is superior to other 

available means for the fair and efficient adjudication of this controversy. “The predominance 

requirement of Rule 23(b)(3) [is] satisfied” when “the central questions in the litigation are the 

same for all class members.” Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010). When, 

like here, “a class challenges a uniform policy or practice, the validity of that policy or practice 

tends to be the predominant issue in the ensuing litigation.” Young, 2007 WL 1238920, *7. 

 The central issues in this case (i.e., those that predominate) are identical for every single 

class member. Indeed, the evidence demonstrates that Defendant’s policies applied across the 

board and in the same manner to every single class member. See Holmes Dep. (Ex. B), pp. 10:1-

12, 69:22-70:11, 95:22-96-4, 105:10-13, 108:13-20, 111:14-17, 117:9-19. The resolution of 

whether those policies are unconstitutional would be equally applicable to Plaintiff as it would be 

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to all class members. Courts in this District have repeatedly certified similar class actions 

challenging the constitutionality of inmate and/or detention policies, consistently finding that: 

The predominant issues in the litigation ... will be the existence and 

constitutionality of the defendants’ alleged policies. A class action is the most 

efficient device for this kind of case because the legality of the policies can be 

determined in one proceeding. 

Parish, 2008 WL 4812875, *5; Bullock, 599 F. Supp. 2d at 976-77 (denying defendant’s motion 

for summary judgment on over-detention claim brought on behalf of a certified class); Young, 

2007 WL 1238920, *7-8; Streeter, 256 F.R.D. at 614; Jackson, 2006 WL 3718041, *5-6; see 

also Barnes, 242 F.R.D. at 123; Bynum v, 214 F.R.D. at 39 (“The Court has already determined 

the existence of at least one common question of fact (whether defendant has detained the class 

members later than their scheduled release date) and at least one common question of law 

(whether these alleged overdetentions violate the Fourth, Fifth, and Eighth Amendments). A 

resolution of these two questions, which are common to all of the class members’ claims, would 

dispose of the issue of whether defendant is liable to plaintiffs in this action.”). 

Any argument that damages amongst class members could potentially vary does not 

defeat Rule 23(b)(3)’s predominance requirement. See De La Fuente, 713 F.2d at 233 (“It is 

very common for Rule 23(b)(3) class actions to involve differing damage awards for different 

class members.”). Such an argument has been consistently rejected in similar § 1983 cases. As 

one court explained: 

Defendants argue that individual issues relating to damages will predominate over 

the question of whether the male inmates’ constitutional rights have been violated. 

Plaintiffs seek only monetary damages and the amount of damages each plaintiff 

is entitled to will rely, in part, on the level of emotional distress experienced by 

that plaintiff. However, the fact that damages may vary among plaintiffs is not a 

sufficient reason to deny certification. 

Bullock v. Sheahan, 225 F.R.D. 227, 230 (N.D. Ill. 2004); see also Calvin v. Sheriff of Will Cnty., 

03-cv-3086, 2004 WL 1125922, *5 (N.D. Ill. May 17, 2004) (“The fact that damages may vary 

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based on each plaintiff’s mental state is not ... a sufficient reason to deny certification....”); 

Parish, 2008 WL 4812875, *6 (same); Bynum, 214 F.R.D. at 39 (“Defendant has pointed out that

if plaintiffs succeed in establishing that they are entitled to damages, the award that each 

individual class member is entitled to may vary significantly. Nevertheless, even if accepted as 

true, this single fact would not preclude a finding that common questions of law and fact 

predominate over individual questions.”); Barnes, 242 F.R.D. at 123 (“The dominant issues in 

this case ... go to liability-whether the overdetentions amount to an unconstitutional municipal 

policy.... These issues dwarf whatever unique issues might arise at the damages stage.”). 

Because the merits of this case will be decided predominantly, if not entirely, on issues common 

to the entire class the predominance requirement of Rule 23(b)(3) is met.6

 Resolving this controversy as a class action is also superior to other methods. Because 

this case involves similar, if not identical claims, of thousands of individuals against the same 

defendant, “class certification promises greater efficiency and consistency than serial litigation of 

nearly identical individual cases.” Barnes, 242 F.R.D. at 123-24. This will minimize the costs 

of discovery, motions and trial, and prevent a multiplicity of cases addressing identical issues 

that would unduly and unnecessarily congest the judicial system. See Young, 2007 WL 1238920, 

*8 (“From the standpoint of judicial economy, handling even a modest portion of the potential 

claims of detainees likely would overwhelm the docket in this District.”); Jackson, 2006 WL 

3718041, *6 (“To rehear this same question for each prisoner defies logic, and the case therefore 

demands the efficiency of scale that Rule 23 provides.”). 

 

6

 The mere fact that there may be slight variations in the length of each class members’ detention is 

similarly insufficient to defeat class certification as Plaintiff’s claim is based on a common course of 

conduct that every acquitted inmate is subjected to without exception, not any particular length of 

detention (albeit that lengthy detentions are the natural by-product of such practices). See, e.g., Bynum, 

214 F.R.D. at 34 (certifying over-detention class action “[b]ecause it was this alleged course of conduct 

that caused injury to the plaintiffs [even though it was] to varying degrees based on the length of time of 

their overdetention”). 

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 A class action is also superior because it is unlikely that most class members would 

pursue these claims on their own. See Bynum, 214 F.R.D. at 40 (“[M]any of the individual class

members who were allegedly overdetained for relatively short time periods may stand to recover 

only a small amount of damages. As such, the interest of class members in individually 

controlling the prosecution of separate actions against defendant appears to be relatively low.”); 

Barnes, 242 F.R.D. at 124 (same). There will also be no difficulties in managing this case as a 

class action as the identity of class members can be determined from Defendant’s records. See

Holmes Dep., (Ex. B), pp. 178:22-179:5, 179:15-20; see also Barnes, 242 F.R.D. at 124 (“The 

manageability of the action is patent on its face: notice to class members can be achieved, in 

most cases, by mailing notice to the last known addresses provided by D.O.C. databases.”). 

Accordingly, the superiority requirement of Rule 23(b)(3) is also met. 

F. In the Alternative, Certification is Appropriate Under Rule 23(b)(2) or Rule 23(c)(4) 

For the reasons set forth above, the Court should certify this case as a class action 

pursuant to Rule 23(a) and Rule 23(b)(3). In the event the Court disagrees for any reason, 

Plaintiff requests certification pursuant to Rule 23(b)(2) as Plaintiff also sought a declaration that

the “the policies or practices challenged herein are illegal and violative of the Constitutional 

rights secured to Plaintiff and the Class.” Complaint (Ex. C), Wherefore Clause (ii); see also 

McKenzie v. City of Chicago, 175 F.R.D. 280, 290 (N.D. Ill. 1997) (certifying class action 

pursuant to Rule 23(b)(2) seeking “ a declaration that the defendants’ actions in implementing 

the Ordinance and operating the Fast Track program are unconstitutional”); Westefer v. Snyder, 

00-cv-162, 2006 WL 2639972, *9 (S.D. Ill. Sept. 12, 2006) (“Rule 23(b)(2) is routinely 

employed as a tool to vindicate the civil rights of prison inmates.”) (citing cases). Class 

certification would also be appropriate pursuant to Rule 23(c)(4) with respect to the specific 

Case: 1:12-cv-03148 Document #: 41 Filed: 07/19/13 Page 15 of 17 PageID #:178
15 

issues of the existence and constitutionality of Defendant’s release policies as those issues are 

unquestionably common to Plaintiff and every class member See FED. R. CIV. P. 23(c)(4) (“[A]n 

action may be brought or maintained as a class action with respect to particular issues.”).7

WHEREFORE, Plaintiff respectfully requests the Court to enter an order (i) certifying 

this case as a class action, (ii) designating Plaintiff as the representatives of the class, and (iii)

appointing 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: July 19, 2013 

 Respectfully Submitted, 

BRIAN OTERO, individually and on behalf 

of all others similarly situated, 

 By: _ __ _/s/ Jacie C. Zolna________

 One of the Attorneys for Plaintiffs 

and the Class 

Myron M. Cherry 

Jacie C. Zolna 

MYRON M. CHERRY & ASSOCIATES, LLC 

30 North LaSalle Street, Suite 2300 

Chicago, Illinois 60602 

Robert M. Foote 

Kathleen Currie Chavez 

Peter Lawrence Currie 

Matthew J. Herman 

FOOTE, MIELKE, CHAVEZ & O’NEIL LLC 

10 West State Street, Suite 200 

Geneva, Illinois 60134 

Attorneys for Plaintiff and the Class

 

7

 Plaintiff also sought to enjoin Defendant from engaging in any further unlawful practices or policies and 

to implement release policies that do not violate the constitutional rights of free citizens acquitted on 

criminal charges. See Complaint (Ex. C), Wherefore Clauses (iii) and (iv). As shown above, Defendant 

has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final 

injunctive relief with respect to the class, which provides a further grounds for certifying the class under 

Rule 23(b)(2). The Court, however, struck the prayer for injunctive relief from the Complaint on the 

grounds that Plaintiff lacked standing to seek such relief. See October 18, 2012 Order (Doc. 24). Plaintiff 

raises this issue here solely to preserve it. 

Case: 1:12-cv-03148 Document #: 41 Filed: 07/19/13 Page 16 of 17 PageID #:179
CERTIFICATE OF SERVICE

 The undersigned hereby certifies that he served the foregoing Plaintiff’s Motion for 

Class Certification and Memorandum of Law in Support Thereof upon: 

Anthony Zecchin 

Cook County State’s Attorney’s Office 

50 West Washington Street, Room 500 

Chicago, Illinois 60602 

anthony.zecchin@cookcountyil.gov

via the electronic filing system on this 19th day of July, 2013. 

 

 _ __ _/s/ Jacie C. Zolna________

Case: 1:12-cv-03148 Document #: 41 Filed: 07/19/13 Page 17 of 17 PageID #:180