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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

QUENTIN BULLOCK and JACK REID,

Individually and on behalf of a class,

Plaintiffs,

v.

MICHAEL SHEAHAN, SHERIFF OF COOK

COUNTY, in his official capacity, and COOK

COUNTY,

Defendants.

)

)

)

)

)

)

)

)

)

)

Case No.: 04 C 1051

Judge: Elaine Bucklo

Magistrate Judge Sidney Schenkier

RULE 54(B) MOTION FOR RECONSIDERATION

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................................................1

II. THIS COURT VIEWED THE EVIDENCE IN A LIGHT FAVORABLE TO

MOVANTS AND IMPROPERLY DISREGARDED DEFENDANTS¶ EVIDENCE

THAT CREATED GENUINE ISSUES OF MATERIAL FACT ......................................4

III.THE COURT ERRED IN ADOPTING THE TEST OF 3LESS INTRUSIVE

ALTERNATIVES. ́ ..........................................................................................................13

IV.THIS COURT ERRONEOUSLY SHIFTED THE BURDEN AND IMPOSED THE

DUTY TO ASCERTAIN 3INDIVIDUALIZED REASONABLE SUSPICION ́ ON

DEFENDANTS..................................................................................................................18

V. DEFENDANTS WERE IMMUNE UNDER THE ELEVENTH AMENDMENT..........19

VI. CONCLUSION..................................................................................................................20

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TABLE OF AUTHORITIES

PAGE

CASES

Adams v. City of Chicago,469 F.3d 609 (7th Cir.2006)..............................................................13

Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir.2004) ....................................1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................1, 4

Bell v. Wolfish, 441 U.S. 520 (1979) .................................................................................. passim

Calvin v. Sheriff of Will County, 405 F.Supp.2d 933 (N.D.Ill. 2005)..........................................15

Campbell v. Miller, 499 F.3d 711 (7th Cir.2007).................................................................14, 15

Canedy v. Boardman, 16 F.3d 183 (7th Cir.1994)......................................................................15

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...........................................................................19

Central Nat¶l Life Ins. Co. v. Fidelity and Deposit Co. of Maryland,

626 F.2d 537 (7th Cir.1980) ..................................................................................................1

Colby v. J.C. Penney Co., 811 F.2d 1119 (7th Cir.1987)............................................................15

Del Raine v. Williford, 32 F.3d 1024 (7th Cir.1994) ..............................................................3, 14

Elliot v. Lynn, 38 F.3d 188 (5th Cir.1994), cert denied, 514 U.S. 1117......................................15

Farmer v. Perrill, 288 F.3d 1254 (10th Cir.2002)..................................................................3, 16

Gary v. Sheahan, 1998 WL 547116 (N.D.Ill. Aug. 20, 1998) ................................................7, 15

Gould v. Bowyer, 11 F.3d 82 (7th Cir.1993) ..............................................................................15

Guzman v. Sheahan, 495 F.3d 852 (7th Cir.2007)........................................................................2

Johnson v. Phelan, 69 F.3d 144 (7th Cir.1995),

cert. denied, 519 U.S. 1006 (1996) ...................................................................... 2, 13, 14, 15

Lewis v. O¶Grady, 853 F.2d 1366 (7th Cir. 1988)................................................................3, 5, 6

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (1976)...................................................................1

Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983) ................................................19

New Jersey v. T.L.O., 469 U.S. 325 (1985)................................................................................19

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Overton v. Bazzetta, 539 U.S. 126 (2003)..................................................................................19

Peckham v. Wisconsin Dept. of Corrections, 141 F.3d 694 (7th Cir.1998).................................15

Petitti v. New England Tel. & Tel. Co., 909 F.2d 28 (1st Cir.1990)..............................................1

Rossy v. Roche Prod., Inc. 880 F.2d 621 (1st Cir.1989)...............................................................1

Simenc v. Sheriff of DuPage County, Ill.,

No. 82 C 4778, 1985 WL 4896 (N.D.Ill. Dec. 9, 1985)........................................................15

Skinner v. Ry. Labor Exec. Assn., 489 U.S. 602 (1989)..............................................................14

Sparks v. Stutler, 71 F.3d 259 (7th Cir.1995), cert. denied, 519 U.S. 948 (1996) .......................14

Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004) ..................................................................3

Thompson v. Souza, 111 F.3d 694 (9th Cir.1997) ......................................................................15

Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990).........................................................................12

Townsend v. Fuchs, 522 F.3d 765 (7th Cir.2008).......................................................................16

Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995)................................................ 3, 14, 19

Wilkes v. Sheahan, N.D. No.01C1592 .........................................................................................9

Winston v. Lee,470 U.S. 753 (1985) ............................................................................................3

OTHER AUTHORITIES

20 Ill.Adm.Code §701.140(a)....................................................................................................19

Fed. R. Civ. P. 54(b) ...................................................................................................................1

Fed. R. Evid. 407 ......................................................................................................................13

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Defendants move the Court for reconsideration, pursuant to Fed. R. Civ. P. 54(b),1 of the

Court¶s July 30, 2008 Order as follows:

I. INTRODUCTION

In ruling on a summary judgment motion, this Court¶s role is to view both the evidence

and reasonable inferences that can be drawn from that evidence in a light favorable to the

nonmoving party, here the defendants. It then must decide if there is a genuine issue of material

fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (holding 3the judge¶s function is

not himself to weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial ́ when considering a summary judgment motion). This Court

acknowledged, but then failed to apply, this established law because it reviewed the disputed

facts (many of which this Court erroneously labeled as 3undisputed ́), viewed the evidence in a

light favorable to the movants/plaintiffs, weighed the evidence, disregarded defendants¶ expert

testimony and evidence, and then made findings of fact, thereby usurping the jury¶s role.

Among this Court¶s impermissible findings of fact were the defendants¶ 3intent ́ and

whether the defendants¶ actions in strip searching were 3reasonable. ́ Yet, intent and

reasonableness are quintessential examples of fact-specific inquiries that depend on the totality

of circumstances. Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.1990) (3When

intent is an issue, we have held that our review μwill be most searching¶ since these questions are

most suited for jury determinations ́ and citing Rossy v. Roche Prod., Inc., 880 F.2d 621, 624

(1st Cir.1989)); Central Nat¶l Life Ins. Co. v. Fidelity and Deposit Co. of Maryland, 626 F.2d

537, 540 n.6 (7th Cir.1980) (3Where intent is a controlling element, courts must be especially

cautious in granting summary judgment, since the resolution of that issue depends so much on

the credibility of the witnesses, which can best be judged by the trier of facts after observation of

the witnesses during direct and cross-examination. ́).

This is equally true when the issue is reasonableness of the officials¶ actions. Amnesty

America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.2004) (reversing summary

judgment because of the 3fact specific nature of the injury ́ on an excessive force claim, holding

that the excessive force claim had to be determined in the totality of the circumstances and

whether the governmental interests were outweighed by the 3nature and the quality of the

intrusion on plaintiff¶s Fourth Amendment interests ́ was a determination for the factfinder).

1 Because this Court¶s order did not adjudicate all claims as to all parties it may be revised at any time before the

entry of judgment. Fed.R.Civ.P. 54(b). See also Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976)

(holding that orders granting partial summary judgment 3are by their terms interlocutory ́).

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Although this Court holds that reasonableness is a fact question with respect to the plaintiffs¶

delay in discharge claim (Op. 20), it then states that reasonableness is a legal question with

respect to less intrusive alternative measures (Op. 14-20). This inconsistent application of tests

for fact-specific inquiries is improper.

When this action is appealed, the Seventh Circuit¶s review will not be deferential, but de

novo. Guzman v. Sheahan, 495 F.3d 852, 856 (7th Cir.2007) (citation omitted). Trying this case

without submitting the issues of liability on the strip searches to the jury as the factfinder, will

waste of judicial resources should the Seventh Circuit reverse because of the genuine issues of

fact shown by the conflicting expert opinions and evidence contained in this record. This Court

should vacate its finding of liability because there are genuine issues of material facts.

The law on strip searches and pretrial detainees is discussed extensively in the crossmotions for summary judgment and is not repeated, but adopted, herein. However, it must be

noted that this Court¶s rulings conflict with the binding precedent of the Supreme Court in Bell v.

Wolfish, 441 U.S. 520, 558-63 (1979) and of the Seventh Circuit in Johnson v. Phelan, 69 F.3d

144 (7th Cir.1995), cert. denied, 519 U.S. 1006 (1996).

· This Court struck the visual strip search as unreasonable (Op. 14-20). In Bell, a

similar strip search ± a visual examination of the genitals and buttocks ± was upheld

as a reasonable means to maintain security 3after every contact visit with a person

from outside the institution. ́ 441 U.S. at 558-60 & n.39. The Supreme Court

rejected the district court¶s holding that the institution had to show probable cause to

strip search and rejected the appellate court¶s holding that the 3gross violation of

personal privacy inherent in such search cannot be outweighed by the government¶s

security interest. ́ Id. at 558. The Court held that these searches did not violate the

Fourth Amendment, which only prohibits 3unreasonable searches. Id. at 558. It held

that the visual body-cavity inspections are appropriate when 3[b]alancing the

significant and legitimate security interests of the institution against the privacy

interests of the inmates ́ Id. at 560.

· This Court made the fact finding and accepted the position of plaintiffs and their

expert that there were other less intrusive means and a more private place to strip

search (Op. 12-14, 18-19). This Court believed that Bell held that the existence of less

intrusive alternatives is 3not dispositive ́ (Op. 19). In fact, Bell rejected the test of

whether there was a 3less intrusive and equally effective alternative to cavity

inspections. ́ Id. at 559 n.40; Phelan, 69 F.3d at 145 (3Less-restrictive-alternative

arguments are too powerful: a prison always can do something, at some cost, to make

prisons more habitable, but if courts assess and compare these costs and benefits then

judges rather than wardens are the real prison administrators. ́). See §III, infra.

· This Court found that the defendants¶ method of searching was unreasonable (Op. 14-

20), but the Bell test mandates 3balancing of the need for the particular search against

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the invasion of personal rights that the search entails. Courts must consider the scope

of the particular intrusion, the manner in which it is conducted, the justification for

initiating it, and the place in which it is conducted. ́ Id. at 559. The searches here

comported with Bell and were constitutionally valid. Alternatively, this is a factdependent inquiry for a jury, not a judge faced with conflicting expert opinions and

evidence. Farmer v. Perrill, 288 F.3d 1254, 1261 (10th Cir.2002) (whether

defendants¶ legitimate, penological interests justified search in open area is question

of fact not properly decided on motion for summary judgment).

· This Court also dismissed defendants¶ position in part because the history of searches

only found one instance of contraband (Op. 17). This identical argument was made ±

and rejected ± in Bell. The Supreme Court held: 3That there has been only one

instance where an MCC inmate was discovered attempting to smuggle contraband

into the institution on his person may be more a testament to the effectiveness of this

search technique as a deterrent that to any lack of interest on the part of the inmates to

secrete and import such items when the opportunity arises. ́ Id. at 559. As the

Seventh Circuit has held, 3[i]t cannot be questioned that the body cavities of prisoners

are capable of secreting a surprising array of objects, and that inmates are willing to

go to extreme lengths to obtain weapons and illicit drugs. ́ Del Raine v. Williford, 32

F.3d 1024, 1042 (7th Cir.1994) (citations omitted). It is because of this that the

government has a 3need to search, both visually and physically, such private parts of

the body. ́ Id.

A final note. The class members are individuals who were lawfully arrested and detained

at the jail pending disposition of their case. Bell, 441 U.S. at 536 (pretrial detainees have had a

3judicial determination of probable cause as a prerequisite to [the] extended restraint of [their]

liberty following arrest ́ and are lawfully committed). This Court holds that as soon as the

detainee returns from court, that detainee automatically has increased privacy rights (Op. 16).

Those detainees have a reduced expectation of privacy as long as they are within the confines of

the jail. Lewis v. O¶Grady, 853 F.2d 1366, 1369 (7th Cir. 1988). Accord Sullivan v. Bornemann,

384 F.3d 372, 376-77 (7th Cir. 2004) (quoting Winston v. Lee, 470 U.S. 753, 758 (1985))

3While the Fourth Amendment does protect [detainee¶s] expectations of privacy, the law

provides that this applies only to μlegitimate expectations that in certain places and at certain

times [an individual] has the right to be let alone¶ ́ (original emphasis)). The 3special needs ́ of

the institution to maintain security dictate that visual searches of court returnees are reasonable.

Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653-54 (1995) (noting that there is a 3special

need ́ that exists in a school context in order to maintain discipline and order in the schools).

The fact that some ± not all ± of the pretrial detainees who return from court will be ultimately

released does not eviscerate the defendants¶ interest in maintaining the security at the jail ± the

largest single site jail in the country.

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II. THIS COURT VIEWED THE EVIDENCE IN A LIGHT FAVORABLE TO

MOVANTS AND IMPROPERLY DISREGARDED DEFENDANTS¶ EVIDENCE

THAT CREATED GENUINE ISSUES OF MATERIAL FACT

This Court disregarded defendants¶ evidence, weighed the evidence, ignored defendants¶

experts¶ opinions, made credibility findings and made findings of fact, concluding it was not

3persuaded ́ (Op. 19). This is not the role of this Court, which is to determine if there was a

genuine issue of material fact based on the evidence when viewed in a light favorable to the

defendants. Anderson, 477 U.S. at 249. There are genuine issues of material facts, and summary

judgment was improper. The evidence that defendants submitted which conflicts with this

Court¶s fact findings include:

· This Court finds, 3The following facts are not in dispute . . . Aside from the smaller

bullpens A, B, C, and D, the male intake area of the RCDC has six additional larger

bullpens, numbered 1-6. Some of the larger numbered bullpens can house 150 to 200

inmates ́ (Op. 2).

This finding is both inaccurate and taken out of context. The 3bullpens ́ referred to in

this statement are not located in the RCDC but in the basement tunnel area of the Criminal Court

Building (3CCB ́) known as the 3Bridge ́ (Ex.C ¶63).2 The Department of Corrections (3DOC ́)

officers work at the male Bridge in the morning, and Court Services relieves at 1:00 p.m. At that

point, if the bullpens are full on the Bridge, the DOC officers will bring those inmates who have

returned from court and are staged in Bullpens 4, 5, and 6 on the Bridge back to the jail. Court

return inmates cannot be taken over to the RCDC in the jail between 3:00 and 4:00 p.m. because

Central Bond Court is not over (Ex.C ¶103). There are holding cells (also called bullpens)

designated 1, 2, and 3 on the 3female bridge, ́ and the 3male bridge ́ consists of cells designated

4, 5, 6, 7, and 8 (Ex.C ¶¶ 63-65). On an average day, between 1:30 and 4:00 p.m. there are 150

to 200 males in 5 and 6 on the Bridge (Ex.C ¶104). After the approximately 150 to 200 male

inmates are brought to the RCDC by Court Services around 4:00 p.m., or when the jail advises

that it is clear, it varies from day to day on how many court returns will be brought down to the

Bridge and at what time. Court Services, which is manning the bridge, can only bring a

maximum of 50 inmates back to the RCDC in the jail at a time (Ex.C ¶105; Ex.A ¶143).

2 All factual statements appearing in this Motion for Reconsideration are taken from either Defendants¶ Response

to Plaintiffs¶ Rule 56.1 Statement of Uncontested Facts, as Exhibit A (3Ex. A ́), or from Defendants¶ Statement

of Additional Facts that require the denial of summary judgment, as Exhibit B (3Ex. B ́), or Defendants¶ Local

Rule 56.1(a)(3) Statement of Undisputed Facts, as to Exhibit C (3Ex. C ́), or Plaintiffs¶ Statement of Material

Facts Pursuant to Local Rule 56.1, as Exhibit D (3Ex. D ́), or Plaintiffs¶ Response to Defendants¶ Statement of

Material Facts referred to as Exhibit E (3Ex. E ́).

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Contrary to this Court¶s finding, it is disputed that any single bullpen on the Bridge or in

the RCDC has the capacity to hold anywhere near 150 to 200 inmates. Each of the larger

bullpens in the RCDC can hold up to 40 inmates (Ex.A ¶135). Even taking plaintiffs¶ disputed

evidence at face value, the maximum number of inmates that can be accommodated in a larger

bullpen is up to 50, 60 or 80, depending on which piece of the plaintiffs¶ inconsistent evidence is

reviewed (Ex.A ¶¶133, 135, 138; Ex.B ¶¶133, 135; Ex.D ¶¶135, 138).

This Court¶s finding was made in support of plaintiffs¶ contention that there is sufficient

space in the RCDC to hold male potential discharges until the Records Department determines

whether the person is an actual discharge. However, this is a disputed fact and is material insofar

as it is not feasible for the jail to provide male prisoners with the same option as female prisoners

due to the lack of secure space and vastly greater number of male prisoners involved in the

process (Ex.A ¶¶117, 122-25, 131, 133-34; Ex.B ¶¶16, 40, 123; Ex.C ¶¶71-83).

· This Court finds that another undisputed fact is 3a mittimus indicates the disposition

of an inmate¶s criminal case to the Department of Corrections. This document

indicates if the inmate is a μpossible discharge.¶ . . . any inmate ordered discharged

remains in custody until the Sheriff determines that there are no other cases or holds

which would prevent the inmate from being released. The jail staff checks CIMIS,

the jail¶s computerized record keeping system, in order to determine whether a court

discharge has other cases which would require continued detention ́ (Op. 3).

The Court¶s description of an inmate as a 3possible discharge, ́ or an inmate ordered

discharged as interchangeable misconstrues the evidence, is ambiguous and is not on point.

Based on the uncontested findings in the 3Brown Study, ́ 44% of male court return pretrial

detainees who receive court ordered dischargeable dispositions on a given criminal case or

charge cannot be released from the jail due to the existence of additional pending criminal cases,

charges, warrants and/or holds (Ex.C ¶124). Therefore, even if the court disposes of a case or

charge, it cannot order the inmate to be discharged until a determination is made that no other

basis exists to detain the inmate. In Lewis, the Seventh Circuit held that notwithstanding a

court¶s disposition of pending criminal charges in favor of the defendant/pretrial detainee, the

sheriff retains the legal authority to continue to hold the defendant in custody for a reasonable

period of time pending the sheriff¶s taking of necessary administrative tasks, including

transporting the defendant from court back to the jail, verifying said defendant¶s identity,

checking for the existence of other warrants or mittimuses against the defendant, completing

paperwork, and other administrative steps. 853 F.2d at 1369 (emphasis added).

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Further, this Court failed to take into account this record that a trial judge does not order

the release of an inmate from the county jail. A 3possible discharge ́ on a mittimus does not

necessarily qualify a detainee (a/k/a inmate) for membership in the putative class, nor does it

necessarily authorize the release of that inmate from the CCDOC (Ex.A ¶9; Ex.B ¶9; Ex.C ¶35).

When an inmate comes back from court with a possible discharge on a mittimus, the jail staff

cannot simply check CIMIS to determine whether a potential discharge is an actual discharge.

Viewing the evidence in favor of plaintiffs, this Court accepted plaintiffs¶ characterization of the

CIMIS system as one that enables quick and easy access to information. CIMIS breaks down

frequently, with individual work stations failing almost daily, and every few months the entire

CIMIS system fails (Ex.A ¶78). CIMIS failures can create time delays and/or a reduction in the

number of terminals available for use, and has been non-functioning as long as eight hours.

CIMIS is the management information system at the CCDOC. It is an offender tracking system

that stores data in the late 1970¶s-fashion (Ex.A ¶78; Ex.B ¶70).

Further, checking CIMIS is only the first step to see if the individual has other charges,

cases or holds that would require continued detention. When an inmate comes back from court

with a mittimus, each mittimus is time stamped in the RCDC. Once the mittimus papers are

brought up to the records unit at the CCDOC, there are five administrative assistants who work

the 12 p.m. to the 8 a.m. shift Monday through Friday, who review mittimus papers and

complete jail files, page by page and cover to cover for inmates who have attended court on a

given date and who have received a court order disposing of a given criminal case or charge

(Ex.B ¶¶10-11). Plaintiffs¶ jail policy expert Sheila Vaughan concedes that CIMIS alone is not

sufficient to determine whether an inmate returning from court with a mittimus indicating a

dismissal of a particular criminal case or charge is actually eligible for discharge. Instead,

Vaughan agrees that in all such instances, each such inmate¶s complete paper jail record or file

must be checked before the inmate is deemed to be actually eligible for release from the jail¶s

custody (Vaughan 4/6/06 report, p. 6 of 23, 3Tab 26 ́ to Pl. LR56.1 Stmt).

In general, it takes additional time for the records department to review the files of male

vs. female potential discharges. This is related to the disproportionately greater number of male

potential discharges compared to female potential discharges on any given day, the

disproportionately greater amount of file information which must be reviewed for male potential

discharges compared to female potential discharges, as well as the limited resources available at

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the jail. This process can take varying amounts of time, but depending on the file, it could take

six hours or even two days (Ex.A ¶78; Ex.B ¶11).

· This Court finds that there 3there is testimony that as many as 50 to 80 male inmates

have been searched together ́ (Op. 4). It then concludes that the policy and practice

of strip searching male returns differs from that for female returns.

This testimony the Court refers to has no relevance to the strip searching of returns.

Plaintiffs in this case sued because after receiving a court order dismissing a particular criminal

charge against them, they had to return to their respective housing division at the Cook County

Department of Corrections (3CCDOC ́) and were strip-searched in the division, although they

were a potential discharge (Ex.C ¶¶7, 9) This testimony from the Young case, however, only

relates to processing of new arrestees into the jail (Ex.A ¶¶24-25; Ex.17 in Table of Exs. for

Resp. to Pl. Stmt of Mat. Facts, pp. 158-62, 186-89, 262-64). It has nothing to do with the

different option provided to female court returns with potential discharges versus male court

returns with potential discharges. In the instant case, procedures on new arrestees (male or

female) is irrelevant. No evidence was submitted on differences, if any, in procedures that are

utilized to process new female arrestee into the jail versus new male arrestees. The facts,

circumstances and context of this strip search testimony referenced by the Court is completely

different from the instant case and misapprehends the issues to be addressed herein (Ex.A ¶25).

· This Court also finds, 3it is the policy and practice of the Sheriff not to give male

returns who are to be discharged an option to avoid being strip searched. In contrast,

the jail has a specific procedure in place for female returns who are to be discharged

which affords them the option of not being strip searched ́ (Op.4).

This record is replete with evidence disputing the contention that it is feasible to provide

male court returns with a potential discharge disposition with the same option as female court

returns. This Court relies on the trial court decision in Gary v. Sheahan, 1998 WL 547116 at *1,

14 (N.D.Ill. Aug. 20, 1998). Two witnesses played a prominent role in the Gary case, Robert

Glotz and John Maul. Their testimony in this case clearly demonstrates why an issue of fact is

present as to whether the identical option can be provided both female and male inmates

returning from court with a potential discharge disposition. Glotz actually served as one of

plaintiffs¶ experts in Gary. In Gary, both Glotz and Maul opined that it was feasible to offer

women the option of not being strip searched because there were only 8 to 10 females prisoners

potentially then being discharged each week. Both testified in this case that the same option

cannot be provided to male detainees because there are so many more men and because of the

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lack of safe and secure space to hold them for a number of hours while their jail packets are

being reviewed (Ex.A ¶¶37-42, 145; Ex.B ¶¶37-40; Ex.C ¶¶42-43; Ex.E ¶¶42-43). This

testimony is consistent with the testimony given by the jail administrators and the Sheriff¶s

expert witnesses in this case, including that for a multiple of reasons (outlined in Defendants¶

Local Rule (3LR ́) 56.1 submissions), it is simply not feasible to offer men the same option (See

Ex.A ¶¶15-16, 30-31, 47, 50, 122-125, 131-136, 146-158; Ex.B ¶¶16, 30-31, 44-48, 50, 123,

128, 133, 135, 153; Ex.C ¶¶13-18, 26, 30-32, 40, 41, 44, 72-75; Ex.E ¶¶13-18, 26, 30-32, 41, 72-

75). These reasons include that the number of male inmates returning from Court can exceed the

number of female inmates by a factor of 10, male and female inmates require different practices

and procedures for safe, secure and efficient movement, staging and processing. Moreover,

space limitations and the maintenance of security in the jail prevent male inmates from being

provided the same option as female inmates. Given the larger number of male inmates who

receive a discharge disposition on a single case or charge for which they appear in court on a

given date, compared to female inmates with discharge dispositions, the male inmates cannot be

kept safely in separate bull pens after court appearances for a number of hours due to potential

safety, security, sanitary and health problems. The sheer volume of male inmates and lack of

space creates a potential for violence and disturbances among male inmates themselves and

between male inmates and correctional staff (Ex.B ¶¶16, 39-40, 44-48; Ex.C ¶¶37-39, 42-44).

Thus, while it is feasible to provide female court returns with potential discharges the

option of remaining in the RCDC or returning to their housing divisions because of the low

numbers, it is not feasible for males to remain in the RCDC and not be returned to the housing

divisions (Ex.A ¶¶37-42, 145; Ex.B ¶¶37-40; Ex.C ¶¶13-17, 42-43, 74; Ex.E ¶¶13-17, 42-43,

74). Females have 3one set of circumstances in one area of the facility that is utilized for them

and they take up much less space, ́ there are 3a lot lower numbers ́ and 3it takes a lot less staff to

process them compared to the males ́ (Ex.C ¶¶51, 74; Ex.E ¶74). The material issues of whether

males and females are similarly situated and whether it is feasible to provide male court returns

with a potential discharge with the same option as the female court returns with potential

discharges, are a disputed questions of fact for a jury to decide.

· This Court finds 3when female discharges are strip searched they are placed in a

location with privacy dividers among the inmates. These dividers or privacy screens

do not allow inmates to see each other during the strip search ́ (Op. 5). This Court

also finds 3Defendants also note that men do not have menstrual cycles. According

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to Defendants, this is significant because this bodily function is the reason given for

providing privacy screens to female discharges ́ (Op. 8). 3

At the CCDOC, privacy screens have been and are now used for female strip searches.

Females, in any correctional setting, are not similarly situated to men and present special issues

due to the fact that women menstruate. This Court acknowledges this difference but still finds

males and females are 3comparable in all material respects ́ and, therefore, similarly situated.

Females are provided a disposable mat to stand on for the strip search. A fresh supply of

sanitary napkins is readily available. Appropriate disposal of used sanitary napkins is also

readily available. These accommodations are provided to female inmates to eliminate

embarrassment in a group setting and to prevent potential infection to other inmates and

correctional staff from these bodily fluids (Lane¶s 1/28/08 Report in Dfts¶ Table of Exs. for

LR56.1 Stmt. of Undisputed Facts as Ex. 7D, pp. 6-7). This difference in bodily function is the

primary reason why female inmates have been and continue to be provided with privacy screen

during the strip search process, which was before a 3pilot project ́ was implemented for male

inmates. Defendants provided a multitude of additional factors to be considered for why

previously only females and not males were provided with the dividers (See Lane and Moyer

Reports attached to Dfts¶ Stmt. of Undisputed Facts, Exs.7D, 8C).

In finding that providing privacy screens to females but not males violated the Equal

Protection clause, the Court held that defendants 3failed to establish there is an important

government objective served by failing to afford male inmates privacy screens ́ and 3failed to

establish that searching the discharges in this manner is substantially related to achieving an

important government objective ́ (Op. 14). The Court suggests that the failure to provide screens

does not increase deterrence nor improve the effectiveness of the searches in uncovering

contraband. In so holding, the Court has ignored entirely the central justification defendants

have offered for providing screens for women.

Reframing the issue will make this point clearer. The issue is better understood as

whether the defendants had a legitimate interest in providing the screens for women, not whether

they had a legitimate interest in failing to provide them to men. Defendants articulated this

3 In the separate lawsuit of Wilkes v. Sheahan, N.D. No.01C1592, relief was sought for strip searches conducted

when women were having their menstrual cycles and were exposed to the embarrassment of having blood run

down their legs onto the floor. It was alleged that other women in the strip search groups were subject to

potential infection from these bodily fluids. The Wilkes case was never certified as a class action. Wilkes was

dismissed by agreement and stipulation of the parties (Ex. A, ¶ 21; Ex. B, ¶ 21).

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interest clearly, as addressed extensively in section II above: women, unlike men, menstruate and

privacy screens shield them from embarrassment related to this bodily function. There can be

little doubt that providing privacy screens is substantially related to the objective of protecting

women from embarrassment related to menstruation. The Court makes no finding that such an

objective is somehow illegitimate. In asking only whether there was a good reason not to

provide screens to men, this Court overlooked the sound reason for providing the screens to

women ± a reason that simply does not apply to men. This ± together with the differences in

population size and available facilities ± is why summary judgment should have been entered in

favor of defendants. Alternatively, the question of the reasonableness of these accommodations

for different bodily functions based on gender is an issue to be decided by the trier of fact.

· This Court erroneously finds there is another undisputed fact, stating 3Also since

2007, Defendants¶ have been using privacy screens when the putative class members

were returned to their housing divisions and strip searched. Defendants contend that

this is a μpilot program,¶ but it is implemented for all court returns and inmates

housed in all divisions ́ (emphasis supplied) (Op. 6).

Beginning in late 2007, a pilot project was initiated at the jail to evaluate the efficiency

and practicality of use of dividers or privacy screens during the strip-search of male inmates

upon their return to their housing divisions following court appearances (Ex.B ¶19). Safety and

security is the paramount concern in a correctional facility, and therefore such a concern will

need to be carefully evaluated in terms of whether this pilot program is, in fact, implemented on

an ongoing and/or permanent basis (Brown March 2008 Affid. at ¶¶10-12, attached to Table of

Exs. for Resp. to Pl. Stmt. of Mat. Facts and Dfts¶ Add¶l Facts as Ex. 16). This procedure

remains under evaluation. (See Lane and Moyer Reports attached to Dfts¶ Stmt. of Undisputed

Facts, Ex. 7D, pp. 3-6, and Ex. 8C, pp. 2-5, 14-15). Its statement that defendants 3contend ́ this

to be a 3pilot program ́ shows that this Court is rejecting the credibility determination of

defendants¶ witnesses and, after weighing the evidence (instead of weighing it in a light

favorable to defendants), makes a fact finding. Yet, this is the function of a jury, not a court in

ruling on a summary judgment motion. Although there is no constitutional mandate for the use

of privacy screens during strip searches (for either males or females), the jail is evaluating

alternative methods in order to determine best practices (Ex.C ¶46). The reasonableness of

defendants¶ actions with regard to the screens is an issue for the trier of fact.

· This Court finds 3The statistics concerning inmate violence clearly indicate this takes

place among female inmates as well as male inmates ́ (Op. 9), and subsequently

footnoting:

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Defendants¶ reliance on the statistical data concerning specific incidents in

jail among the male and female inmate population is faulty. (emphasis

supplied). According to Defendants, there is a greater number of male

inmates and a greater number of incidents within the male inmate

population, therefore male inmates are more dangerous. This reasoning is

faulty (emphasis supplied) precisely because it fails to control for

population size. For example, Defendants set forth that 76 percent of all

reported fights involve male inmates. This means female inmates are

responsible for almost a quarter of fights and yet make up less than 10

percent (specifically 729 in 2008). Therefore, based on Defendants¶

statistics, individual female inmates are more likely to be involved in

fights than male inmates.

(Op. 13 & n.2).

In concluding men and women are similarly situated, this Court impermissibly weighed

the conflicting evidence by relying on this piece of statistical data regarding 3fights ́ to obliterate

the factual issue concerning whether or not male inmates have a greater tendency for violence

than female inmates. This amounts to the weighing of conflicting facts, a job for the trier of fact.

Further, this Court is substituting its discretion for that of the experienced correctional

administrators, who deal with these issues on a daily basis. Bell, 441 U.S. at 547-48.

Not all violence is equal. Of particular concern to the jail officials are 3shanks, ́ which

are any type of object fashioned by an inmate from another object such as a toothbrush, pen,

piece of metal, wood, glass, plastic, etc. and which is used or intended to be used to stab another

person (Ex.C ¶54; Ex.E ¶54). The CCDOC and Court Services staffs have discovered

homemade weapons, drugs and contraband during strip searches of male inmates while attending

and/or returning from court in their divisions in the jail (Ex.C ¶30). This record contains various

examples of incident reports that demonstrate the repeated occasions whereby male inmates

admitted and/or were actually observed obtaining contraband while in court and/or inside a court

room lockup cells, including one incident whereby a detainee obtained a 35-inch metal shank

from a radiator located within courtroom 308¶s lockup cell following a court appearance. In at

least one instance, 3inmates on the new ́ (new arrestees) were observed passing contraband to

male court returns (Ex.C ¶31, 54; Ex.E ¶54).

Plaintiffs failed to provide conflicting evidence showing female court returns (with or

without a discharge disposition) attempted to secrete the dangerous shanks that can be used to

stab other inmates or correctional staff, into the jail. Statistically, 99 percent of all shanks

recovered at the jail are from male prisoners (Ex.C ¶¶54-55; Ex.E ¶54). It is imperative to take

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the appropriate security measures to prevent the potential violence that can be inflicted with such

weapons. This Court also disregarded the significance of the self-reported male gang affiliations

at the jail, as compared to female (1,714 males to 19 females) (Ex.C ¶56; Ex.E ¶56). Gang

affiliations add more elements of danger to an already dangerous place (Lane 5/4/06 report pp. 8-

9, Ex. 7B to Table of Exs. for LR56.1 Stmt. of Undisputed Facts). Further, 100% of all fires

started at the jail involved males (Ex.C ¶55).

This Court rejected this evidence, stating 3. . . , female discharges are also capable of

smuggling contraband into the jail ́ (Op. 10). This is reason why all inmates are strip searched

upon their return to the housing divisions, for safety and security.

This Court held that because women are 3capable ́ of violence, men and women are

similarly situated (Op. 13, n.2). Statistically, males are far more likely to be members of violent

gangs, start fires, and create shanks which sole purpose is to stab a person. That females are

3capable ́ does not mean that their violent acts are similar to males¶ violence. Weighing the

statistical data and facts relating to violent behavior at the jail is a material issue of fact for a jury

to decide. These fact-intensive inquiries on the reasonableness of defendants¶ actions must be

resolved by a jury. Differences in kind and frequency of violent acts committed by men and

women relevant to deciding of two groups were similarly situated. Timm v. Gunter, 917 F.2d

1093, 1103 (8th Cir. 1990). Indeed, the significance of these factors does not depend on the men

and women being housed in separate buildings rather than separate division of the same building,

the only distinction this Court made between the present case and Timm.

· This Court holds: 3Finally, underscoring the weakness of this argument is the fact that

defendants¶ primary justification for distinguishing between male and female

discharges is their alleged inability to hold them in the RCDC while their records are

reviewed ± a logistical rather than a security concern ́ (Op. 9-10)

This Court improperly weighs the evidence and makes a credibility determination as

evidenced by its characterization of defendants¶ evidence that only proves an 3alleged ́ inability

to hold male potential/actual discharges in the RCDC separate from other male court returns (as

is done with female actual/potential discharges). Second, this statement mischaracterizes and

ignores evidence in the record. Defendants pointed to multiple witnesses¶ testimony and/or Rule

26 reports referencing multiple safety/security issues as to why each of the specific proposals

offered by plaintiffs¶ retained experts Henry, Vaughan, Rubio and Moliver cannot be

implemented at the jail, as well as various safety/security issues that were not considered or

disregarded by plaintiffs¶ experts (See, e.g., Dft. Mo/SJ, p. 9). After weighing the evidence, this

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Court rejected defendants¶3primary justification ́ (security) for distinguishing between genders

as a 3logistical, ́ not security, concern (Op. 9-10).4 The logistics and security are not mutually

exclusive, and the former must always factor into maintaining the latter. Further, this Court cites

no controlling authority that would suggest that logistical concerns are irrelevant. To the

contrary, in mandating deference to prison administrators, cases like Bell and Phelan underscore

the significance of the logistical concerns administrators are in the best position to weigh. Bell,

441 U.S. at 559 n. 40; Phelan, 69 F.3d at 145.

· This Court references the Jail's Pilot Program which, beginning in 2007, implemented

the use of privacy screens or dividers in the strip searching of all male inmates

returning to the eight separate male housing divisions at the jail, including those

returning from court appearances (which, in turn, includes those male inmates who

are potentially/actually eligible for discharge from custody) (Op. 5-6, 8, 14).

In their Reply in Support of Summary Judgment, defendants set forth their reasons and

supporting authorities as to why evidence of this pilot program was inadmissible in the instant

action, including, inter alia, the fact that the record indicates that the Sheriff never disputed the

feasibility of implementing the use of privacy screens or dividers to search male inmates

returning to their housing divisions following court appearances (Dft¶s Reply, pp. 23-27).

Defendants also distinguished Adams v. City of Chicago, 469 F.3d 609 (7th Cir.2006) (relied

upon by plaintiffs for their argument that an exception to Fed. R. Evid. 407 applied). For these

reasons, defendants submit that this Court erred in considering evidence of the pilot program in

granting plaintiffs¶ motion for summary judgment.

III. THE COURT ERRED IN ADOPTING THE TEST OF

3LESS INTRUSIVE ALTERNATIVES. ́

This Court also concludes that the manner in which the searches at issue are conducted

violates the Fourth Amendment because 3less restrictive, equally effective ́ alternatives ± such as

are provided to women ± are available (Op. 12-14, 18-19). The Court¶s conclusion rests on an

erroneous application of the law and an impermissible weighing of the conflicting evidence

presented by the parties. Based on the uncontested facts, summary judgment should have been

entered for defendants or, alternatively, there are questions of fact for a jury to resolve.

First, this Court suggests that Bell held the existence of such alternatives can be

considered, but 3is not dispositive ́ (Op. 19). There can be no doubt that Bell did not adopt ± or

4 This Court improperly conflates the Fourteenth and Fourth Amendment analysis in finding that administrative

costs under the Fourth Amendment could be dismissed because 3defendants failed to effectively distinguish

female discharges ́ (Op. 17).

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sanction ± a 3less intrusive alternative ́ test; it expressly rejected this. 441 U.S. at 559- 60 n. 40.

As the Supreme Court has held: 3We have repeatedly refused to declare that only the 3least

intrusive ́ search practicable can be reasonable under the Fourth Amendment. Skinner [v. Ry.

Labor Exec. Assn., 489 U.S. 602,] 629 n.9 [(1989)] (collecting cases). ́ Vernonia School Dist.

47J v. Acton, 515 U.S. 646, 663-64 & n.3 (1995) (upholding random drug tests of athletes) Del

Raine v. Williford, 32 F.3d 1024 (7th Cir.1994) (rejecting the 3less intrusive alternative ́ relying

on Bell and upholding forced rectal probe as not violative of the Eighth Amendment).

There are at least two compelling reasons why a 3less intrusive alternative ́ is not the test.

First, if courts were required to evaluate other alternatives, this would be 3tantamount to federal

court micro-management of a penological facility, ́ and making a 3decision to initiate different

methods to search for contraband is not for this court to make . . . ́ Id. at 1042. Under Bell,

prison officials must be 3accorded 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. ́ 441 U.S. at 547-48. Second, anyone can conceive of

alternatives, and 3μelaborate less-restrictive-alternative arguments could raise insuperable

barriers to the exercise of virtually all search-and-seizure powers.¶ ́ Vernonia, 515 U.S. at 664

n.3. The Seventh Circuit has expressly held that the 3fourth amendment does not require the use

of μless intrusive [yet] equally effective alternatives to [body] cavity inspections.¶ ́ Sparks v.

Stutler, 71 F.3d 259, 262 (7th Cir.1995), cert. denied, 519 U.S. 948 (1996). This is because

[l]ess-restrictive-alternative arguments are too powerful: a prison always can do

something, at some cost, to make prisons more habitable, but if courts assess and

compare these costs and benefits then judges rather than wardens are the real

prison administrators. [Bell v.] Wolfish emphasized what is the animating theme

of the Court¶s prison jurisprudence for the last 20 years: the requirement that

judges respect hard choices made by prison administrators. ́

Phelan, 69 F.3d at 145. In light of the deference owed to prison administrators, the searches at

issue here did not violate the Fourth Amendment, and summary judgment should have been

entered in favor of defendants.

This Court misplaced on four decisions to justify the premise that 3less intrusive, equally

effective ́ alternatives can 3tip the balance ́ in a Bell analysis (Op. 19). Campbell v. Miller, 499

F.3d 711 (7th Cir.2007), addressed the visual anal cavity search of an individual arrested on

suspicion of marijuana possession. The strip search was conducted in the suspect¶s friend¶s

backyard in full view of friends and neighbors before Campbell was issued a citation and

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released. Because no evidence was presented to suggest 3any conceivable exigency ́ justifying

the public strip search, Campbell found the search was unreasonable. Campbell has no bearing

here where the search at issue was conducted within a jail facility, and evidence was presented

establishing that the method of the search was necessary to preserve security in the jail.

This Court cites Canedy v. Boardman, 16 F.3d 183 (7th Cir.1994), for the principle that

3where it is reasonable« to respect an inmate¶s constitutional privacy interests, doing so« is a

constitutional mandate ́ (Op. 19). The Seventh Circuit later clarified in Phelan that it is 3best to

understand the references to μprivacy¶ in Canedy and similar cases as invocations of the eighth

amendment¶s ban on cruel and unusual punishments. ́ 69 F.3d at 147; Peckham v. Wisconsin

Dept. of Corrections, 141 F.3d 694, 697 (7th Cir.1998) (3Eighth Amendment« is more properly

posed to protect inmates from unconstitutional strip searches, notably when their aim is

punishment, not legitimate institutional concerns ́). As no Eighth Amendment claim has been

raised here, Canedy does not apply.

Finally, this Court relies on two trial court cases, Calvin v. Sheriff of Will County, 405

F.Supp.2d 933, 943 (N.D.Ill. 2005) and Simenc v. Sheriff of DuPage County, Ill., No. 82 C 4778,

1985 WL 4896 (N.D.Ill. Dec. 9, 1985), as authority that strip searches 3have repeatedly [been]

invalidated ́ based on the existence of less-intrusive measures and must at minimum be

conducted where the search cannot be observed by anyone other than the person conducting the

search (Op. 15, 19). Reliance on Calvin and Simenc, or any trial court decision is misplaced

because these decision lack precedential value. 5 Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir.1993)

3A district court decision binds no judge in any other case, save to the extent that doctrines of

preclusion (not stare decisis) apply ́); Colby v. J.C. Penney Co., 811 F.2d 1119, 1123-24 (7th

Cir.1987) (3district judges . . . must not treat decisions by other district judges, . . . as

controlling ́ (original emphasis)). Even if precedent, Calvin and Simenc are distinguishable (see

Dft. SJ Reply, pp. 8-10). The decisions of federal appellate courts obviously have precedential

value, and, contrary to the trial courts, they have declined to find searches unreasonable simply

because not conducted privately. Thompson v. Souza, 111 F.3d 694 (9th Cir.1997) (strip

searches in view of other inmates upheld in face of security concerns); Elliot v. Lynn, 38 F.3d

188 (5th Cir.1994), cert denied, 514 U.S. 1117 (upholding visual body cavity search in light of

5 This Court¶s repeated reliance throughout its decision on Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116

(N.D. Aug. 20, 1998) and other trial court decisions is misplaced for this same reason (see, e.g., Op. 11, 12, 14,

15, 17.

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deference owed to administrator); Farmer v. Perrill, 288 F.3d 1254 (10th Cir.2002) (conflicting

evidence re: penological justification for collective search precluded summary judgment).

In Farmer, a male-to-female transsexual inmate complained about routine strip searches

of inmates returning from the recreation yard to the prison¶s 3Special Housing Unit. ́ The

inmate complained that the searches were unnecessary from a security perspective and

unreasonably conducted in view of others. Id. at 1257. Although the location of the searches

was disputed, the appellate court assumed for the sake of its decision that the searches occurred

in an open area in full view of other inmates and staff. Id. at 1260. Defendants offered evidence

of their need to conduct the searches in an open area, and plaintiff offered her own evidence

attempting to call into question the justifications proffered by the defense. Id. at 1260-61.

Plaintiff also suggested alternatives to the strip searches. In view of this disputed evidence, the

court declined to decide whether the search would ultimately pass constitutional muster, as

reasonable noting that the legitimacy of defendants¶ asserted penological need for conducting the

searches in an open area presented a genuine issue of material fact not appropriate for resolution

at the summary judgment stage. Id. at 1261.

This Court found plaintiffs¶ experts¶ credible and accepted their theories on several 3less

intrusive and equally effective alternatives ́ to current policy and practice at the jail (Op. 12-14,

18-19). Having recognized that 3[d]efendants present additional arguments as to why none of

these proposed alternatives are tenable ́ (Op. 18-19), the Court should simply have found ± as in

Farmer± that the defendants¶ penological justification for conducting the searches in this case

presents a genuine issue of material fact precluding summary judgment. Instead, this Court

engaged in impermissible fact-finding rejecting defendants¶ (unidentified) evidence and labeling

it 3unpersuasive and in some cases unsupported by the record ́ (Op. 19). The Court ignores the

vast amount of evidence defendants presented in favor of their policy.

Defendants presented evidence from several experts that have provided extensive and

authoritative reports disputing the plaintiffs¶ proposals for 3several less intrusive and equally

effective alternatives ́ (Ex.C ¶¶13-17). This Court rejected their credibility, found them

3unpersuasive ́ and made findings of fact, which were a product of impermissible weighing of

evidence (Op. 19). Credibility determinations, however, lie exclusively within the fact finder¶s

domain and are not appropriate for a district court to make at the summary judgment stage.

Townsend v. Fuchs, 522 F.3d 765, 774-75 (7th Cir.2008). This is particularly true here because

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3the moving party¶s version of the facts changed over time to eventually support the non-moving

party¶s position. ́ Outlaw v. Newkirk, 259, F.3d 833, 638 (7th Cir. 2001).

Even if the plaintiffs¶ other feasible alternatives were the legal test, this record is replete

with conflicting evidence and expert opinions (Ex.C ¶¶13-17). This evidence demonstrates that

it is not feasible to separately stage male potential discharges in the RCDC before it is

determined that they are an actual release due to, among other things, space, staff, and security.

Males cannot be provided with the same option as females (Ex.A ¶¶15-16, 18-19; Ex.B ¶¶16, 19;

Ex.C ¶¶38-56). It is a disputed fact that there is sufficient space in the RCDC to hold male court

returns who return from court with a potential discharge. The evidence shows that virtually all

inmate movement comes through the RCDC. It is impossible to predict the volume of movement

at any one time or the space, staff, and resources required for maintenance of safety and security.

Due to the physical size and layout, complexity of operations, staffing issues, and security

concerns, it would be extremely difficult, if not impossible, for additional activities to be

conducted in the RCDC (Ex.A ¶¶117, 122-25, 131, 133-34; Ex.B ¶134; Ex.C ¶¶71-83).

The claim that the jail has the ability to utilize other spaces besides the RCDC (such as

the lockups and the Bridge area, in the CCB at 26th and California) to hold male court returns

until such time as the Records Department determines whether the person is an actual discharge,

is disputed. The evidence shows that approximately half of all detainees going to court on a

daily basis are transported by bus to appear in the outlying courts (as this Court acknowledged

(Op. 3)). There is no alternative method offered by the plaintiffs on what type of alternative

process can be used to transport and separately stage male inmates with potential discharge

dispositions returning from the outlying courts at the court room lockups or in the bridge cells at

the CCB (Ex.C ¶34). Further, the suggestion that significant numbers of detainees can be staged

by Court Services in their holding pens at the CCB does not take into account the dynamics of

detainee movement into and out of the courts throughout the day. Court Services, which serves

the CCB (and Bridge after 1:00 p.m. each weekday) (Ex.C ¶103)), has an entirely different

mission and set of responsibilities (Ex.A ¶¶139-45; Ex.B ¶¶140-41; Ex.C ¶¶90-100).

It is disputed that the jail has the ability to identify, before court, or immediately

thereafter, whether any male inmates who receive 3possible discharges ́ have other pending

cases. The evidence of record demonstrates the incapacity of the CIMIS system to accurately

and efficiently process inmate data without the Records Department¶s manual, page-by-page

review of the inmate files (Ex.B ¶¶ 10-11) Not only would the plaintiffs¶ proposal increase the

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time required to generate court passes, but it could affect the accuracy of the data because of the

timing and coordination required for batch processing of updates to separate databases. It would

have a ripple effect on both the manual and automated procedures required to run the daily court

call (Ex.A ¶¶70-71, 73, 75, 76, 80-89).

Contrary to this Court¶s fact finding, the extensive discovery that has taken place in this

case shows that the jail cannot provide additional holding facilities in the RCDC by creating new

bullpens to handle court discharges (Ex.A ¶¶146-49). The 3commissary ́ and the 3commissary

storage areas ́ that are adjacent to the RCDC are not underutilized and represent an essential

operational service that plaintiffs¶ experts and this Court ignored (Ex.A ¶¶147-49). The

plaintiffs¶ New York expert architect admits that his proposals are only a first step in a process

that does not consider all costs that might be involved, financial or otherwise (Ex.A ¶146).

Plaintiffs¶ expert architect conceptual proposals cannot feasibly be implemented to separately

stage male court returns with potential discharges, and specifically, through reconfiguration of

the sanitation area, commissary and commissary storage areas, because this expert failed to take

into account the full range of operational implications inherent in his proposal to achieve new

holding pens for potential discharges (Ex.A ¶¶146-59; Ex.B ¶¶136-53; Ex.C ¶¶13-16).

For this Court to sort through all of these alternative proposals, weighing the costs and

benefits of each option, amounts to judicial micromanaging contrary to Bell¶s directive.

IV. THIS COURT ERRONEOUSLY SHIFTED THE BURDEN

AND IMPOSED THE DUTY TO ASCERTAIN 3INDIVIDUALIZED

REASONABLE SUSPICION ́ ON DEFENDANTS.

In granting plaintiff¶s motion for summary judgment on liability, this Court held:

3[D]efendants have failed to establish that individual male inmates pose a greater security threat

than individual female inmates. Nor have they established that they had individualized

reasonable suspicion (Op.17). In so holding, this Court has improperly shifted the burden on

defendants to 3prove ́ its justification ́ for its actions opposing summary judgment (Op. 17). It

also applied a heightened standard of scrutiny to these jail officials to show that their decisions in

the method and manner of conducting male and female searches must be 3substantially related ́

to the government¶s interest (Op. 11-12). And, besides improperly adopting a 3less intrusive

alternative ́ test rejected by the Supreme Court and Seventh Circuit (see §III, supra), this Court

also imposed the burden on defendants that they had to have 3individualized reasonable

suspicion ́ before acting. This Court has violated binding precedent in imposing these

unrecognized legal requirements and should vacate its decision.

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This Court held that defendants, as the parties seeking to uphold the policy, bore the

burden of establishing the constitutional validity of the policy (Op. 11-12, citing Mary Beth G. v.

City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983)). Two decades after the decision in Mary

Beth G, the Supreme Court held that 3[t]he burden . . . is not on the State to prove the validity of

prison regulations but on the prisoner to disprove it. ́ Overton v. Bazzetta, 539 U.S. 126, 132

(2003). And, because this was plaintiffs¶ motion for summary judgment, the burden remained on

them to establish there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 332 (1986). This Court erred in imposing these burdens on defendants.

This Court also erred in applying a heightened standard of scrutiny to this case involving

the method and manner of conducting male and female searches must be 3substantially related ́

to the government¶s interest (Op. 11-12). Bell squarely holds that the rational relationship test

applies to searches, and it upheld the same visual search at issue here as reasonably related to the

government¶s interest in maintaining security. 441 U.S. at 558-60.

This Court imposed another burden on defendants in rejecting their 3proposed

justifications for conducting these searches ́ because defendants failed to establish the 3greater

security threat ́ or that they 3had individualized reasonable suspicion ́ (Op. 15, n.3, 17). (It then

supports its finding by stating 3none of the searches of the class members resulted in detection of

any weapons or drugs, ́ again impermissibly engaging in fact- finding (see §II, supra). The

Supreme Court has rejected 3reasonable suspicion ́ as a test. A defendant¶s actions need not be

justified by 3individualized suspicion of wrongdoing, and the 3Fourth Amendment imposes no

irreducible requirement of such suspicion. ́ Vernonia, 515 U.S. at 664 & n.3 (holding that

school officials do not need reasonable suspicion in conducting random drug testing of athletes,

citing New Jersey v. T.L.O., 469 U.S. 325, 342 (1985), and collecting cases where the court

upheld suspicionless searches and seizures); see also Muehler v. Mena, 544 U.S. 93, 101 (2005)

(where officers were lawfully searching premises and had lawfully restrained plaintiff/occupant,

they did not need 3independent reasonable suspicion ́ under the Fourth Amendment to question

her). To hold that officials must establish 3reasonable suspicion ́ would make maintaining

security in jails and prisons impossible, and would violate Supreme Court binding precedent in

Bell.

V. DEFENDANTS WERE IMMUNE UNDER THE ELEVENTH AMENDMENT.

This Court held that defendants were not entitled to immunity holding that a visual strip

search exceeded Illinois¶s statutory mandate to 3thoroughly search ́ under 20 Ill.Adm.Code

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§701.140(a) (Op. 21-23). In so finding, this Court relied on the New York administrative code

and New York case law instead of acknowledging defendants¶ argument and supporting

authorities that the Illinois Administrative Code Jail Standards requires a strip search of inmates

returning to their housing divisions from locations outside of the jail (i.e., court appearances)

(see Dft. SJ Reply, pp. 28-31). The searches here are not invasive bodily searches, but visual, as

approved by Bell. It is impossible to conceive of a 3thorough ́ search that could be less invasive.

Moreover, the evidence on whether the visual strip search was required was not

controverted by plaintiffs¶ ± or defendants¶ ± experts. They both agreed that a strip search is

necessary anytime an inmate returns to a housing division following a court appearance (Ex.C

¶26), Lane¶s 1/28/08 pp. 2-3 report (attached as Ex.11, 11-D to Ex.A, B and attached as Ex.7A,

7D to Ex.C). Plaintiffs failed to meet their burden showing there was a genuine issue of material

fact that under Illinois law; a 3thorough search ́ does not encompass the visual search of court

returnees. Because the search was mandated by state law, and defendants should have been

afforded immunity under the Eleventh Amendment. In refusing to accord defendants immunity

± and, indeed, in addressing this issue in terms of 3qualified immunity, ́ a concept separate and

distinct from Eleventh Amendment immunity ± this Court erred.

VI. CONCLUSION

This Court failed to apprehend the complexity of operations at the jail and the different

aspects of inmate movement throughout the facility, including movement to and from court. To

administer a correctional facility involves the management of a complex series of events and

people. Correctional administrators must balance competing interests in a very challenging

physical environment. This is especially true in the face of extraordinary challenges in the

management of an ever-increasing population of inmates and detainees at the jail (Ex.C ¶23).

The facts and circumstances surrounding the processes and procedures at the largest single site

jail in the United States cannot be theoretically analyzed through the use of forced logic (Ex.C

¶¶18-20). These operations must be viewed in their proper context in order to set forth a fair and

accurate picture of the realities of what takes place at the jail on a daily basis. The Court has not

done this and its decision is nothing short of judicial micromanagement of the jail.

This Court should have entered judgment for defendants based on the Fourteenth

Amendment because women are not similarly situated to men given their undeniable

physiological differences, the numerical differences in the two populations and available

facilities. The mere fact that women are capable of violence does not prove discriminatory intent

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and defendants articulated a legitimate basis for distinguishing the two populations. This Court

also should have entered summary judgment for defendants on the Fourth Amendment because,

in light of the deference owed to prison administrators, the searches at issue here were

constitutional. Moreover, defendants were immune under the Eleventh Amendment in this claim

for damages.

Alternatively, a thorough review of the extensive evidence when viewed in favor of

defendants conclusively demonstrates there are disputed all material facts, including the

feasibility of each of the several alleged less intrusive alternatives theoretically proposed by the

plaintiffs. These are issues of fact to be decided by a jury. This Court erred, in both its

appreciation of the legal tests and in weighing the evidence, in ruling on the motion for summary

judgment, and holding as a matter of law that defendants were liable.

WHEREFORE, Defendants request this Honorable Court to reconsider and vacate its

Memorandum Opinion and Order of July 30, 2008 and for such other relief deemed appropriate.

Steven M. Puiszis

Bernard E. Jude Quinn

Frank J. Marsico

Hinshaw & Culbertson LLP

222 N. LaSalle Street, Suite 300

Chicago, IL 60601-1081

(312) 704-3000

Respectfully submitted,

By: s/Steven M. Puiszis

One of the Attorneys for Defendant,

Michael Sheahan, Sheriff of Cook County

By: s/Patrick Driscoll

Assistant State¶s Attorney, Patrick

Driscoll, Chief Civil Actions Bureau,

Office of the States Attorney of Cook

County

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CERTIFICATE OF SERVICE

I hereby certify that on August 18, 2008, I electronically filed the above-mentioned

Motion for Reconsideration with the Clerk of the U.S. District Court, Northern District of

Illinois, Eastern Division, by using the CM/ECF system, which will send notification of such

filings(s) to the following:

Thomas G. Morrissey, Esq.

Attorney at Law

10249 South Western Avenue

Chicago, IL 60643

tgmlaw@ameritech.net

Patrick M. Blanchard, Esq.

State¶s Attorney of Cook County

500 Richard J. Daley Center

Room 575

Chicago, IL 60602

pblanch@cookcountygov.com

Robert Farley, Jr.

1155 South Washington Street

Suite 201

Naperville, Illinois 60540

farleylaw@aol.com

By: s/Bernard E. Jude Quinn

 One of its Attorneys

Steven M. Puiszis

Bernard E. Jude Quinn

Frank J. Marsico

Hinshaw & Culbertson LLP

222 N. LaSalle Street, Suite 300

Chicago, IL 60601-1081

(312) 704-3000

ARDC No.: 6284492

Email: jquinn@hinshawlaw.com

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