-male and female alike--are subject to strip searches if they
return to their divisions. This simply ignores the part of the
policy that excepts female actual discharges from the requirement
of returning to their living quarters. There is no question that
the policy adopted pursuant to the Gary injunction facially applies
only to female court returns. In this respect, this case is not
analogous to those cited above, but is more similar to Mississippi
University for Women v. Hogan, 458 U.S. 718 (1982) (public
university’s policy of admitting only women to school of nursing
held unconstitutional) ; City of Cleburne v. Cleburne Assisted
Living Center, 473 U.S, 432 (1985) (zoning ordinance that required
special use permit for group home for mentally retarded held
unconstitutional); and Mary Beth G. v. City of Chicago 723 F.2d
1263 (7 Cir. 1983) (city’s practice of strip searching female
misdemeanor offenders while male misdemeanor offenders were subject
only to hand searches held unconstitutional). There was no
discussion, in these cases, of intent, presumably because the
challenged state action discriminates on its face, and its purpose
for doing so does not affect the level of scrutiny to which it is
subject. See Miss. Univ. for Women, 458 U.S. at 725 (statutes
intended to “protect” women subject to same heightened scrutiny as
any policy that expressly discriminates based. on gender).
Likewise, plaintiffs here need not make any further showing of

defendants’ intent.

20



strip searches to be conducted in a manner that allows only
the prison officials conducting the search to view the inmate,
Plaintiffs do not claim that a strip search conducted in a
manner that allows the inmates being searched to view each
other is per sé unreasonable. Plaintiffs make much of the
fact that in 2007, during the pendency of this lawsuit,
defendants instituted the use of privacy screens for male
group strip searches, and argue that this demonstrates
defendants had no justification for not using them earlier.

But this argument misses the point. As discussed above,

prison officials are not required to choose the least

restrictive means of achieving their objective of maintaining

order and safety within the institution. Moreover, granting

summary judgment based on CCDOC’s later use of privacy screens

raises a significant public policy concern. As the Eighth

Circuit noted in Klinger v. Department of Corrections,
{Plrison officials would be far less willing to
experiment and innovate at an individual institution
knowing that a federal court could impose liability on
the basis of a program comparison. Indeed, inmates would
suffer because officials would likely provide each
institution with the bare ‘constitutional minimum of
programs and services to avoid the threat of equal
protection liability.

31 F.3d 727, 733 (8 Cir. 1994). Similarly here, if each time

ccbot improved upon the conditions for conducting inmate

searches, a court could impose liability based on CCDOC’s pre-

improvement procedures, CCDOC would have a perverse incentive

37



held at least one or two meetings to consider whether a similar
policy could be instituted for male court returns but concluded it
would not be feasible due to the number of male court returns and
the lack of available space to segregate male possible discharges
within the RCDC or elsewhere in the Jail facility.

Plaintiffs also complain that, in addition to the fact that
female possible discharges may elect not to return to their
divisions (and thus avoid the strip search), female court returns
who do return to their divisions are strip searched in more
favorable conditions than their male counterparts, In particular,
while female inmates are also searched in groups, privacy screens
prevent them from seeing one another. The parties agree that
privacy screens were instituted for women as a result of claims
brought in Wilkes v. Sheahan, 01 C 1592 (N.D. Ill. 2001). In that
case, a group of female inmates alleged that the group strip
searches to which they were subjected were unsanitary and
humiliating because women who were menstruating were forced to
remove their. sanitary napkins, causing blood to run down their legs

and onto the floor, in view of other inmates.

“plaintiffs assert that it was this lawsuit that prompted the
use of privacy dividers for women. Defendants do not properly
admit or deny plaintiffs’ statement, but they acknowledge the
lawsuit and also admit that privacy dividers are used in order to
protect women from “embarrassment related to menstruation” during
searches. Accordingly, I consider plaintiffs’ statement undisputed.

14


Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 at *9 (N.D.
Ill., Aug. 20, 1998) (citations to record omitted). The court
therefore concluded that the defendant had not met its burden
of justifying the differential treatment, and that there was
no issue of material fact on the issue of liability under the
Equal Protection Clause.

The Gary court also found that the defendant’s practice
violated the plaintiffs’ Fourth Amendment rights. The court
noted that even assuming female court returns posed a security
risk if they returned to their housing divisions without being
strip searched, “a simple change in the processing of
individuals in the plaintiff class would eliminate” the need
to strip search the plaintiffs, all of whom were possible
discharges upon their return to the Jail and became actual
discharges after a records check revealed no outstanding
warrants of holds. Gary v. Sheahan, No. 96 C 7294, 1998 WL
547116 at *14 (N,D. Ill., Aug. 20, 1998). The court
explained:

Executive Director Velasco testified that the Sheriff has

the ability to review, in a very short period of time,

the six or eight females that are going to be discharged
on a daily basis to make a determination whether there
are other charges or holds pending. Furthermore,

Assistant Director Maul testified that it is feasible to

discharge females from the Receiving Room if they agreed

to waive picking up their property in their cells, and

instead have their property brought to them.

Id. (citations to record omitted).

24



a review of the inmate’s records by CCDOC staff, that the inmate is
not subject to any additional charges, warrants, or holds and may
therefore be released.

The parties agree that as of March 2008, the Jail housed 9,165
inmates. Of these, 8,436 were male and 729 were female-~a ratio of
approximately nine to one. CCDOC inmates live in one of the Jail’s
ten housing divisions, each of which operates semi-autonomously and
has its own separate building on the Jail grounds. Eight of the
divisions are for men, and two are for women. Inmates are housed
according to their security classifications, which are established
based on a number of factors, including criminal history, prior
convictions, prior disciplinary problems, known gang affiliation,
any history of drug or alcohol abuse, etc. Roughly 32% of all
ccpoc inmates (male and female) have a maximum = security
classification.

The Receiving, Classification and Diagnosis Center (“RCDC”) is
the Jail’s hub of inmate movement. All inmates who transfer
between housing divisions, or who enter or exit the Jail for any
reason, including court appearances, medical or psychiatric
treatment, participation in alternative programs, etc., must be
processed through RCDC. In addition, the RCDC is used by CCDOC and
outside agencies for various other purposes. For example, the
Illinois State Department of Corrections conducts parole hearings

twice a month in the male intake area of the RCDC. Inmates


of strip searching of all male court discharges not based upon
reasonable suspicion that they are concealing contraband
violates the Fourth Amendment is denied.

Plaintiffs’ claim that the manner in which the strip
search is conducted, in large non-private group settings,
violates the Fourth Amendment, is also inappropriate for
summary judgment. As plaintiffs’ formulation of the claim
indicates, lack of ‘privacy is their primary complaint.
Plaintiffs rely on two cases for the proposition that strip
searches must respect individual privacy: Campbell v. Miller,
499 F.3d 711 (7 Cir. 2007), and Hills v. Bogans, 735 F.2d 391
(10 Cir, 1984). While it is true that in each of these
cases, the appeals court held that manner in which the search
was conducted unreasonably invaded the arrestee’s privacy,
neither case supports judgment of plaintiffs’ claim as a
matter of law, Setting aside the fact that the plaintiff in
Campbell was searched incident to his arrest, and not while he
was in jail (the court noted that this distinction was
relevant), Campbell addressed a visual body cavity search
conducted in the arrestee’s friend's backyard, in plain view
of onlookers. In Hills, an arrestee was taken to a “lobby
area” of the jail, in which ten or twelve people, none of whom
was involved in the search, were milling about, then forced to

face the wall and drop his pants and undershorts for a visual

35



For the reasons discussed above, I again conclude that
defendants .must show an “exceedingly persuasive justification for
the classification,” that the classification serves “important
government objectives and that the discriminatory means employed
are substantially related to the achievement of those objectives.”
Miss. Univ. for Women, 458 U.S. at 724 (internal quotations
omitted). On reconsideration, I find that this is a question that
must be answered by a jury.

The challenged policies cannot be analyzed in a vacuum but
must be viewed in context, taking into account how they came into
existence and have evolved over time. That a portion of the CCDOC
inmate population must attend court each weekday is not a new
phenomenon. But a significant increase in the prison population
and evolving security issues have made the logistics of
transporting inmates from their housing divisions to and from the
various courts in Chicago and outlying districts increasingly
complex.

Prior to 1992, inmates attended court in their civilian
clothes, rather than in prison garb. In the event an inmate’s
court appearance resulted in the dismissal of the charges then
before the court, Court Services would call the Records Unit at
ccbpoc to find out whether any additional charges, warrants, or
holds prevented that inmate’s release from custody. If not, the

inmate was released by Court Services and was not required to

21


plaintiff class (rather than by negative reference to the
policy applied to female inmates) and makes clear that
defendants bear the burden of demonstrating that the gender-
based distinction is warranted under the circumstances of this
case. The record contains sharply conflicting expert opinions
on this question, and summary judgment is not the place to
resolve this battle of the experts.

For the foregoing reasons, the parties’ cross-motions for
summary judgment on plaintiffs’ claim that defendants’ policy
of strip searching of all male court discharges and not all
female court discharges violates the Equal Protection Clause
are denied.

Similarly, the analytical framework plaintiffs propose
for their claim that plaintiffs are not offered the same level
of privacy as similarly situated female court returns must be

turned on its head. Plaintiffs state that “(t]he reason the

Sheriff does not provide dividers for men during a strip

search is because there was previously a class action lawsuit
about the strip searching of women at the Jail and because
there are more men than women at the Jail.” The first
portion of this statement is a reference to Wilkes v. Sheahan,

01 C 1592 (N.D. Ill. 2001), in which the plaintiffs alleged

Mplaintiffs’ Statement of Material Facts (Docket No. 280-2)
No, 21.

27



defendant conceded that male court returns were not strip searched
in the RCDC pursuant to General Order 13.1, explaining that the
number of male court returns and the limited space available had
for years made strip searching male returns in the RCDC “just about
impossible.” Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 at *2
(N.D. Ill., Aug. 20, 1998), Moreover, the defendant in Gary
presented no evidence that the Sheriff's standard practice was to
strip all male inmates returning from court. The Gary court thus
concluded that there was no dispute that female court returns were
systematically strip searched, while male court returns were not.
The court further found that for the purpose of the plaintiffs’
claims, the male and female inmate populations were similarly
situated. Accordingly, the court held, pursuant to Mary Beth G,
and Mississippi University for Women, that the defendant bore the
burden of showing an “exceedingly persuasive justification” for the
differing treatment.

The Gary court went on to state:

Remarkably, the defendant does not even attempt to argue

that such a policy is related to any important government

objectives. Instead, the defendant tries to convince

this court that there is no disparity in the treatment of

the male[s] and females. The women are strip searched,

the defendant contends, pursuant to the defendant’s

standard operating procedure that all detainees returning

from court, both male and female, are to be strip

searched. Although such a written policy does exist, the

evidence has clearly shown that the actual practice in

the Jail has not reflected this policy for nearly a
decade.

23


inspection of his buttocks. One element that immediately

distinguishes both Campbell and Hill is that the viewing

public in those cases was not limited, as it is in this case,
to other inmates also being searched, but included passers-by
(Campbell) or anyone who happened to be in the jail’s “lobby
area” (Hills).

Defendants, for their part, cite to Thompson v. Souza,
111 F.3d 694 (9% Cir, 1997), and Elliot v. Lynn, 38 F.3d 188
(5% Cir, 1994), for the proposition that strip searches
conducted in front of other inmates are permissible under the
Fourth Amendment, and Farmer v. Perrill, 288 F.3d 1254 (10%

Cir. 2002), for the proposition that whether legitimate

penological objectives justify a strip search in an open area
in view of other inmates is a fact-sensitive issue. In
response to the Farmer defendants’ argument that the lower
court’s denial of summary judgment erroneously placed the
purden on the defendants to justify their policy (the same
argument defendants raise here), the court upheld the denial,
stating, “Defendants proffered evidence of their
justification, the plaintiff disputed that evidence, and the
district judge found that the matter could not be resolved at
the summary judgment stage. That is all.” 288 F.3d at 1261.

The situation in this case is similar. As defendants’

cases demonstrate, the Constitution clearly does not require

36



similarly situated. “The similarly situated inquiry focuses on
whether the plaintiffs are similarly situated to another group for
purposes of the challenged government action.” Klinger v.
Department ‘of Corrections, 31 F.3d 727, 731 (8 Cir. 1994).

The challenged action in plaintiffs’ first equal protection
claim is the systematic strip searching of male actual discharges,
whom defendants have no authority to detain, other than for a
reasonable time incident to outprocessing. Plaintiffs do not
challenge defendants’ policies or practices for strip searching
ccboc inmates generally, or even for strip searching court returns
other than those who are to be processed out. Thus, the most
salient feature of both the plaintiff class and the comparison
group of female actual discharges is their discharge status, and
they are similarly situated in that respect. As'to plaintiffs’
second claim, the challenged action is CCDOC’s gender-specific use
of privacy dividers. There is no question that strip searches are
invasive by nature, or that regardless of one’s gender, the level
of invasiveness is heightened when searches are conducted in the
view of others. That women menstruate may justify some level of
differential treatment, but it does not alter the similarly
situated inquiry. Accordingly, I again hold that plaintiffs are
similarly situated to female actual discharges.

On the issue of intent, both parties appear to believe that

for plaintiffs to prevail on their equal protection claim, they

18


291 possible discharges on a single day (of whom ccpoc transported
243), The corresponding numbers for female inmates show an average
of 38 possible discharges per day (of whom 31 are transported),
with a peak of 55 (45 transported). On average, 57% of male
possible discharges became actual discharges.’ Stated differently,
an average of 43% of male court returns who receive dismissal
mittimuses are not eligible for release (i.e., do not become actual
discharges) due to other holds. The parties do not dispute these
figures.

At all times relevant to this case, the policy and practice of
ccDoc has been to strip search all male and female court returns
who return'to their housing divisions after a court appearance,
regardless of the disposition of their cases. It has not been
CCDOC’s policy or practice during the relevant time period to strip
search court returns, male or female, in the RCDC.

All male court returns, including those returning from court
with dismissal mittimuses, are required to proceed from the RCDC to
their respective housing divisions while the Records Department of
the CCDOC processes their paperwork. If a male court return’ s
mittimus indicates that he is a possible discharge, an

administrative assistant in the Discharge Unit of the Records

process the mittimus papers of all of the inmates with court
proceedings to determine whether they may be discharged.

"the study does not provide a corresponding percentage for
female inmates.

10



strip searches of female misdemeanor offenders had ever turned

up contraband, the challenged searches were not justified.
Id.

Indeed, although courts of appeals are not unanimous on
the question, several circuits have agreed that minor
offenders charged with non-violent crimes not ordinarily
associated with drugs or weapons cannot be subject to strip
searches absent a reasonable suspicion that they are harboring
contraband. See, e.g., Swain v. Spinney, 117 F.3d 1, 7 (1*
Cir. 1997); Chapman v. Nichols, 989 F.2d 393, 395 (10TM Cir.
1993); but see Powell v. Barrett, No. 05-16734, 2008 WL
4072800 (11% Cir., Sept. 4, 2008) (no reasonable suspicion
required). The hitch in this case, of course, is that at the
time the searches are carried out on male court returns, CCDOC
does not know with what crimes, if any, the inmate is charged,
and, in case of the plaintiff class, the answer is--by
definition--none. Here, it becomes clear that the
reasonableness of plaintiffs’ searches cannot be resolved as
a matter of law, but depends on the jury’s resolution of the
same factual dispute discussed in relation to plaintiffs’
Fourteenth Amendment violations. If the jury credits the
testimony of plaintiffs’ experts, several of whom have opined
that segregating male possible discharges from the general

male court return population in the RCDC would not compromise

33


favoring one sex can be justified iff it intentionally and
directly assists members of the sex that is disproportionately
burdened.” Miss. Univ. for Women, 458 U.S. at 728. A jury
could conclude, based on the evidence, that while group
searches without privacy dividers are invasive and
uncomfortable to both sexes, they are unreasonably so for
women who may be viewed while menstruating, and that this
distinction justifies CCDOC’s gender-based classification.

For the foregoing reasons, the parties’ cross-motions for
summary judgment on plaintiffs’ claim that defendants’ policy
of strip searching of all male court discharges in large non-
private group settings with up to fifty inmates, while the
female court discharges, who opt to return to the housing
divisions, are afforded privacy, violates the Equal Protection
Clause are denied.

B. Fourth Amendment

On reconsideration, I have also revised my views about
the appropriateness of summary judgment on plaintiffs’ Fourth
Amendment claims. In defendants’ favor is Bell v. Wolfish,
441 U.S. 520 (1979), which upheld visual body cavity searches
of inmates--including both sentenced prisoners and pretrial
detainees--after contact visits, and which emphasized what the
Seventh Circuit has called “the animating theme” of the

Supreme Court’s recent prison jurisprudence, Johnson v.

30


toilet facilities while others do not. The parties disagree about
how many inmates can be held in the various bullpens.

Each weekday, approximately 800 to 1,200 inmates attend court,
and again the ratio of men to women is approximately nine to one,
Inmates are first transported from their housing divisions to the
RCDC, where they are staged in the various bullpens while CCDOC

transportation officers verify and prepare the inmates’ court

paperwork. Roughly half of the inmates attending court on any

given day attend hearings at the Criminal Courts Building (“CCB”)
in Chicago, which is adjacent to the CCDOC facilities and is
accessed by a system of underground tunnels, Inmates whose court
hearings are at one of the “outlying” courts are transported from
the RCDC to the courts and back by bus. Inmates going to court at
the CCB are taken through tunnels from the RCDC into the basement
of the CCB; which area is known as the “Bridge.” The Bridge is
separated by walls into two sides known as the “male bridge,” which
contains holding cells numbered 4-8, and the “female bridge,” which
contains holding cells numbered 1-3. Confusingly, inmates of
either sex may be held in the cells located on either side (but
male and female inmates presumably are not commingled). The Bridge
is staffed by CCDOC officers during the hours of inmate movement
from the Jail to the court. Transportation officers bring inmates
from the Bridge to the inmates’ next waystation--the courtroom

lockups--using dedicated elevators within the CCB. The lockups are



attending these hearings are “staged” in one of the several
bullpens that are also used for staging inmates before and after
they attend court.

The parties do not dispute the physical characteristics of the
RCDC, only the extent to which the premises are, or could be,
amenable to ‘certain’ activities. The parties agree on the
following: An area referred to as the “male intake area” contains
four small bullpens identified by letters A, B, C, and D, and six
larger bullpens identified by numbers 1 through 6. The numbered
bullpens are referred to as the “interior bullpens.” In addition

to the bullpens just described, there are five “exterior bullpens,”

which are located outside the male intake area.* Both male and

female inmates who enter or leave thé Jail, including for court
appearances, may be staged for transit at different times in these
bulipens. Defendants assert that due to security concerns,
however, inmates of different security classifications and/or
different discharge statuses generally are not commingled in the

various bullpens.' Some of the bullpens described above have

3I assume that these five “exterior bullpens” are the same as
those that are alternately referred to as “court return bullpens.”
Defendants also refer to something called the “bonding cage,” also
outside the intake area, and it is unclear whether this is
something other than the exterior bullpens.

‘Plaintiffs point out, and there is evidence to suggest, that
certain classes of inmates are, on occasion, commingled. CCDOC’s
position is that although this is sometimes inevitable due to
logistical constraints, it is highly undesirable from a security
perspective.



must demonstrate discriminatory intent beyond simply pointing to a
policy and practice that facially distinguishes between male and
female court returns. This is understandable, since many cases
invoking the Equal Protection Clause are concerned with statutes,
ordinances, or other state action that is facially neutral but that
disproportionately affects one group of individuals. See, e.g.,
Feeney, 442 U.S. 256 (1979) (upholding facially gender-neutral
veterans’ preference statute that disproportionately benefitted
men); Washington v. Davis, 426 U.S. 229 (1976) (upholding facially
race-neutral employment eligibility test that adversely impacted
black applicants); Yick Wo v. Hopkins, 118 U.S. 356 (1886)
(discharging from custody Chinese citizens imprisoned pursuant to
facially néutral ordinance arbitrarily applied against Chinese).
In such cases, because “purposeful discrimination is ‘the condition
that offends the Constitution,’” Id. at 274 (quoting Swann v.
Charlotte-Mecklenburg Board of Ed., 402 U.S. 1, 16 (1971)), to
prevail on an equal protection claim a plaintiff must prove not
only adverse impact but also invidious intent.

This, however, is not such a case. The CCDOC policy and
practice of segregating female possible discharges from the
remainder of the female court returns, such that female actual
returns may elect to avoid strip searches, is not gender-neutral on
its face. Defendants claim that their strip search policy and

practice is, in fact, gender neutral because all court returns-

19



Every court return, regardless of the court’s disposition of
his or her case,® is required to return to the Jail before being
released. Both male and female court returns are transported from
the courts back to the RCDC. At this point, the procedure for
processing court returns back into (or, in the case of actual
discharges, out of) the Jail diverges based on two factors: the
inmate’s sex, and whether the inmate obtained a dismissal mittimus.
As explained below, the combination of these factors is what
determines whether and how a court return is subject to a strip
search. The lack of uniformity between the procedures applied to
male actual discharges and female actual discharges is the basis
for plaintiffs’ claims.

Before delving into these procedures, a few additional
statistics provide helpful context. A representative study using
data from 2002-2005 shows that on average, 209 male inmates per day
receive dismissal mittimuses (i.e., they become “possible
discharges”), although CCDOC physically transports only 170 of

these inmates to and from court.® The same study showed a peak of

5For ease of reference, I sometimes refer to the disposition
of a court return’s “case.” What I mean in each instance is the
disposition of the particular charges or matter before the court on
the day of the hearing.

‘The remainder are “electronic monitoring” or “papers only”
inmates, who are not physically transported from the Jail to the
court and back, but who are nevertheless subject to CCDOC
monitoring or are in CCDOC custody. Both numbers are relevant,
since although only the inmates who are transported to and from
court are subject to the challenged strip search, CCDOC must

9



Several considerations emerge from my reexamination of
the Gary case and its relevance to plaintiffs’ claims. As
noted above, the parties agree that CCDOC’s current policy and
practice was instituted pursuant to the Gary court’s order
enjoining the Cook County Sheriff from strip searching female
possible discharges, “unless after their return a computer
check of their record indicates there are other reasons for
holding the inmate or unless the female court return [w]Jants
to return to her living quarters to recover personal items.”
That order plainly directs the Sheriff to adopt procedures
facially specific to female possible discharges, as was indeed
appropriate in view of the factual record in that case.

It is clear from this history that the gender-specific
policy adopted pursuant to Gary was instituted as a means of
righting particular constitutional wrongs visited on female
inmates in a particular context. It is reasonable to assume,
as the Gary court apparently concluded, that a gender-based
classification was appropriate based on the record in that
case. See Mississippi University for Women, 458 U.S. 718 at
728 (“In limited circumstances, a gender-based classification
favoring one sex can be justified if it intentionally and
directly assists members of the sex that is disproportionately
purdened”). Nevertheless, even assuming the policy adopted

pursuant to the Gary injunction was warranted under the

25



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, No. 04 ¢ 1051

Ve

THOMAS DART, SHERIFF OF COOK COUNTY,
in his official capacity, and COOK
COUNTY,

Defendants.
MEMORANDUM OPINION AND ORDER

On July 30, 2008, I entered an order resolving cross-motions

for summary judgment in this action (the “July 30 Order”), At
issue was whether defendants Michael Sheahan (then the Cook County
Sheriff) and Cook County violated the Fourth and/or Fourteenth
Amendment rights of plaintiffs Quentin Bullock, Jack Reid, and a
class of male individuals in the custody of the Cook County
Department of Corrections (“CCDOC” or the “Jail”). I granted
plaintiffs’ motion for summary judgment on claims that defendants’
policy of performing blanket strip searches on male inmates
returning to CCDOC from court hearings, where those hearings
resulted in the dismissal of certain charges and there was no
additional basis for the inmates’ detention, violated the Fourth
and Fourteenth Amendments. In particular, I held that defendants’

policy and practice of allowing female court returns, but not male



Female court returns are processed differently upon their
return from court. Upon or shortly after their arrival at RCDC,
female court returns are broken down into two groups, according to
the disposition noted on their mittimuses. All female court
returns other than those who received dismissal mittimuses are
required, like their male counterparts, to return to their housing
divisions, where they are strip searched. But female court returns
whose mittimuses show they are possible discharges are segregated
into a separate bullpen within the RCDC while the CCDOC staff
consults CIMIS and reviews their records to determine if they are
eligible for release. If these reviews show that there are no
additional holds on the possible discharges, their street clothing
is brought to them, and they may elect whether to return to their
divisions to retrieve their personal property, in which case they
are subject to a strip search, or instead to be discharged
immediately and return within thirty days for their personal
property.’ The parties dispute the average time it takes for
female actual discharges to be released, but there appears to be no
dispute that female court returns--regardless of whether they elect

to remain in the RCDC or return to the housing divisions--are

53Defendants state that roughly 90% of women entitled to
immediate discharge elect to return to their divisions.

12



Department checks CIMIS (a computerized record system containing
case information on each inmate), as well as the inmate’s paper
“record pack” to determine whether the inmate is an actual
discharge. If so, the inmate is brought back from his division to
RCDC, where his identity is verified and he is released. In the
case of plaintiffs Bullock and Reid, this process took eight-and-a-
half and eight hours respectively.’

The procedure by which male court returns are searched is as
follows: (1) the inmates are lined up at arm’s length from each
other; (2) the inmates are instructed to remove all of their
clothing; (3) the inmates are then instructed to extend their arms
and legs apart; and (4) the inmates are ordered to squat three or
four times, and to cough while squatting. The number of inmates
being searched at once varies; there is testimony that as many as
50 male inmates have been searched together, but that generally the

number is lower.

®the amended complaint states, “The detention of plaintiff
Bullock for approximately eight and one-half hours and plaintiff
Reid for eight hours after judges determined they should be
released from custody constitutes deliberate indifference to the
rights of the plaintiffs.” It is not clear from this language, and
the parties’ summary judgment papers do not clarify, whether
plaintiffs began counting at the time the judge signed the
dismissal mittimus, at the time plaintiffs were returned to CCDOC
custody after their hearings (recall that inmates are in the
custody of the courtroom deputy at least until they leave the
courtroom lockups, and apparently remain in the custody of Court
Services for some time thereafter en route to the Jail), at the
time they actually arrived at the Jail, or some other time.

11



without reasonable suspicion that they were concealing drugs
or weapons, violated the Fourth Amendment. The court
acknowledged that Bell upheld the strip searches in that case
on less than probable cause, but distinguished Bell on factual
grounds, including that the Bell plaintiffs, unlike Mary Beth
G., “were awaiting trial on serious federal charges...and were
being searched after contact visits.” 723 F.2d at 1272. The
court concluded that these factual differences were
“sufficiently significant to compel our own inquiry as to
whether the strip searches conducted by the City were
‘reasonable’ under the fourth amendment.” Id.

The court then proceeded to analyze the Bell factors,
balancing the severe intrusion on the plaintiffs’ privacy and
dignity against the City’s purported justification for the
search. Although the City asserted “the need to maintain the
security of the City lockups by preventing misdemeanor
offenders from bringing in weapons or contraband,” 723 F.2d at
1272, the court concluded that the City’s evidence “belies its
purported concerns.” Jd, at 1273. In particular, the court
noted that because the plaintiffs--all of whom were detained
on traffic or other minor offenses--were not charged with “the
kinds of crimes...that might give rise to a reasonable belief
that the woman arrestee was concealing an item in a body

cavity,” and that, in fact, there was no evidence that the

32


Phelan, 69 F.3d 144, 145 (7 Cir, 1995) (emphasis in
original): that prison administrators have broad discretion to
adopt and execute the policies they deem necessary to maintain
institutional security, and that judges should not interfere
with the “professional expertise of corrections officials.”
441 U.S. at 548, The Bell court further held that body cavity
searches can be conducted on less than probable cause, id, at
560, and that the existence of less restrictive means of
detecting contraband does not necessarily render the searches
unreasonable. Id. at 559 n. 40.

Bell did not, however, approve the use of blanket strip
searches in any and all circumstances, but instead reaffirmed
the need to conduct a fact-specific inquiry into the
reasonableness of the particular search. Prison “[o]fficials
do not have carte blanche to institute any policy they please
under the justification of institutional security,” Calvin v.
Sheriff of Will County, 405 F.Supp.2d 933, 942 (N.D. Ill.
2005) (citation omitted). Bell requires courts to 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.” 441 U.S. at 559.

In Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7
Cir. 1983), the Seventh Circuit held that the City’s policy of

routinely strip searching female misdemeanor offenders,

31



generally adjacent to the various courtrooms (though some or all
courtrooms share lockup facilities with one other courtroom) and
are staffed by courtroom deputies, who take custody of the inmates
upon their arrival. At the conclusion of the morning court calls,
Court Services’ transportation team takes the inmates from the
lockups back down to the Bridge. From there, they are returned to
the Jail via the RCDC, and ultimately, in most cases, to their
respective housing divisions, following a procedure that is at
least as complex as the one required for their arrival at the
court,

It should be apparent from the above that CCDOC has a complex
system requiring interagency coordination for transporting inmates
from their living quarters within the Jail to the courts and back.
It is also clear from the record that the logistics of moving
hundreds of inmates presenting a range of security risks to several

different locations requires significant time. Indeed, inmates

with court appearances are awakened between 4:00 and 4:20 a.m. to

ensure their prompt arrival at court calls beginning at 9:00 or
9:30 a.m, And at the end of each day, inmates returning from
outlying courts or from late court calls at the CCB may return to

the RCDC as late as 9:00 p.m.



return to CCDOC at all, other than to pick up his or her personal

belongings at a later time, That process changed in approximately
1992, when the inmate population of CCDOC experienced a dramatic
increase. Prisoners were no longer permitted to attend court
hearings in their street clothes, and for at least this reason,
they were required to return to the Jail after court appearances,
regardless of the court’s disposition of the pending charges.

By 1996, when the Gary plaintiffs brought their lawsuit, CCDOC
had a written policy, set forth in General Order 13.1, that
required all court returns, including male and female possible
discharges, to be strip searched, All court returns were also
required to return to their housing divisions within the Jail,
regardless of the disposition of their cases. The Gary plaintiffs
{a class of female actual discharges) alleged that the policy was
not enforced as written, and that in practice, all female court

. returns were subjected to systematic strip searches in the
receiving area of the Jail,** while male court returns were not
regularly strip searched at all. See Gary v. Sheahan, No. 96 C
7294, 1998 WL 547116 (N.D.°Ill., Aug. 20, 1998) (Coar, J.).

The parties in Gary agreed that pursuant to General Order
13.1, female. court returns were systematically strip searched in

the RCDC before returning to their housing divisions. The

227 presume that the “Receiving Area” referred to in Judge
Coar’s opinions refers to the RCDC.

22



summary judgment in their favor on plaintiffs’ unreasonable
delay claim, I decline to reconsider that denial. In any
event, I am convinced that pursuant to Chortek v. City of
Milwaukee, 356 F.3d 740, 747 (7 Cir. 2004) (“ [T]he
reasonableness of a length of detention typically ‘is a
question best left open for juries to answer based on the
facts presented in each case’”), summary judgment of this
claim is inappropriate in this case,
C. Eleventh Amendment Immunity

Defendants’ motion for reconsideration also asserts that
I erred in declining to grant summary judgment for defendants
on the basis of Eleventh Amendment immunity. They have not
persuaded me, however, that my denial of summary judgment on
this ground rested on a manifest error of law or fact.
Defendants concede that Sheriffs generally act as county,
rather than state officials. That an Illinois Sheriff may act
as an arm of the State does not compel the conclusion that
this exception--rather than the general rule--applies here.
Accordingly, defendants’ motion to reconsider the portion of
the July 30 Order denying summary judgment on the basis of

Eleventh Amendment immunity is denied.

Mas the substance of my analysis and the authorities I cited
made clear, at issue was whether defendants are immune from suit
under the Eleventh Amendment. References in the July 30 Order to

“qualified” immunity should be amended accordingly.

39



TIL.

‘For the foregoing reasons, defendants’ Rule 54(b) motion
for reconsideration is granted as to the portions of the July
30 Order that granted summary judgment to plaintiffs on their
Fourteenth Amendment claims and on certain of their Fourth
Amendment claims. Those portions of the July 30 Order are
vacated, and I now deny both parties’ motions for summary
judgment on those claims.

Defendants’ Rule 54(b) motion is denied as to the
portions of the July 30 Order denying defendant’s motion for
summary judgment of plaintiffs’ Fourth Amendment claim of

unreasonable delay and denying defendant’s motion for summary

judgment based on Eleventh Amendment immunity.

ENTER ORDER:

B.. Zz Brahh
Elaine E. Bucklo
United States District Judge

Dated: February 27, 2009

40


that the group strip searches to which they were subjected

were conducted in abusive, humiliating, and unsanitary
conditions that violated their Fourth, Eighth and Fourteenth
Amendment rights. Among other particulars, the Wilkes
plaintiffs alleged that although they or other women being
searched were menstruating, they were required to remove their
sanitary napkins and perform the search in a manner that
allowed blood to run down their legs onto the floor, in view
of other inmates. Based on the complaint, it appears that the
gravamen of the Wilkes plaintiffs’ Fourteenth Amendment claims
was that the manner in which the searches were conducted was
particularly humiliating and abusive to them as women because
of their particular physiological functions.

The Wilkes case was dismissed pursuant to a settlement

agreement prior to the issuance of any opinion, so the merits
of these claims was not decided. The point, however, is that
the gender-based classification underlying the policy on
privacy dividers, like the gender-based classification that
determines who can remain in the RCDC during outprocessing,
was instituted to rectify specific practices that violated (or
allegedly violated, in Wilkes) the rights of female inmates.
While neither Wilkes nor Gary is dispositive of whether
defendants | are justified in maintaining the gender-based

distinctions challenged in this case, the factual

28



supported facts, they must admit them. To the extent defendants
wish to convey that plaintiffs’ facts, although undisputed, fail to
tell the whole story, defendants may add, in a separate numbered
statement, whatever factual material they believe is necessary to
complete the picture. That is the purpose of L,R, 56.1(b)(3)©. I
remind both parties (for plaintiffs, while generally more
restrained in their factual statements, were not immune from
narrative, non-responsive, argumentative responses) that I am
entitled to demand strict adherence to L.R. 56.1, and that I may
refuse to consider facts presented in a fashion inconsistent with
the rule. Ciomber v. Cooperative Plus, Inc., 527 F,3d 635, 643 (7%
Cir. 2008).

With this introduction, I turn to the facts. A short glossary
of terms is useful to beqin, Throughout this opinion, I refer to
inmates who return to the Jail after an appearance in court as
“court returns.” I refer to court returns whose appearance
culminates in the issuance of a mittimus dismissing particular
charges against them as “possible discharges.” 1 refer to the
mittimus itself as a “dismissal mittimus.”* A possible discharge

becomes an “actual discharge” if the Sheriff determines, based upon

?T note that the parties use various terms to refer to such a
mittimus, including, for example, “court ordered release,” and
“court ordered discharge.” I am mindful that a mittimus does not
order or effect an inmate’s release but rather dismisses certain
charges against the inmate, and I have chosen the term “dismissal
mittimus” to reflect this distinction.

4


Since the present lawsuit was filed, defendants have begun
using privacy screens during male strip searches as well. In
February 2007, the Sheriff installed privacy screens for searching
male and female new inmates (or “arrestees”) arriving to the Jail.
Up to 37 new male inmates can be strip searched at a time with the
privacy screens, and approximately 200 to 350 new male inmates are
processed into the Jail on a daily basis. Also since 2007,
defendants have been using privacy screens when male court returns
are returned to their housing divisions and strip searched.

. II.

Summary judgment is appropriate where the record shows that
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir. 2007); Fep. R.
Crv. P. 56©. I must construe all facts in the light most favorable
to the non-moving party and draw all reasonable inferences in favor
of that party. Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).

A genuine issue of material fact exists when “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v, Liberty Lobby, Inc., 477 U.S. 242,
248, (1986). The nonmoving party, however, “must do more than
simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

15



(citing Plyler v. Doe, 457 U.S. 202, 216 (1982). Although the

Fourteenth Amendment “does not take from the States all power of
classification,” Personnel Administrator v. Feeney, 442 U.S, 256,
271 (1979), “a policy that expressly discriminates on the basis of
gender must carry the burden of showing an ‘exceedingly persuasive
justification’ for the differing treatment.” Mary Beth G, v, City
of Chicago, 723 F.2d 1263, 1274 (7% Cir, 1983) (citing Mississippi
University for Women v. Hogan, 458 U.S. 718 (1982). In my July 30
Order, I cheld that plaintiffs had satisfied the threshold
requirement of proving that male and female actual discharges are
similarly situated, that there was no material dispute about
defendants’ intent, and that defendants had failed to show an
exceedingly persuasive justification for their disparate treatment.

On reconsideration, I again conclude that male and female
actual discharges are similarly situated. I am mindful that the
sheer number of men versus women means that it may require more of
defendants to develop a system in which male possible discharges
are segregated and processed separately from other male court
returns than it did for them to develop a system for segregating
and processing female possible discharges separately from other
female returns. I am also mindful of the physiological differences
between men and women. These distinctions, however, go to whether
any or all of the differences in treatment plaintiffs allege are

justified, not to whether male and female actual discharges are

17


I.

At the outset, I feel compelled to note that ascertaining
which facts are genuinely in dispute in this matter has been
complicated by the manner in which the parties handled their Local
Rule 56.1 submissions. Instead of setting forth, and responding
to, short factual statements as the Rule requires, the parties
approached: their filings as a platform for advancing competing
characterizations of the evidence and for highlighting their
respective experts’ opinions. Defendants, in particular, packed
multiple, often conclusory assertions and opinions into each
factual “statement,” followed by a string cite to various portions
of the record. Plaintiffs (and I) were then faced with the burden
of trying to match up the various propositions in each numbered
statement with the corresponding citations and determining whether
the statements were, in fact, supported by the evidence. This
approach flies in the face of both the letter and the spirit of
LeR. 56.1.

In addition, defendants typically responded to plaintiffs’
statements with their own “undisputed” version of the same or
related facts, which recharacterized, amended, or added to the
facts plaintiffs set forth. This type of response is obviously
unacceptable, as it fails to respond to plaintiffs’ facts and also
introduces new facts that plaintiffs have no means of

controverting. If defendants cannot dispute plaintiffs’ properly


not to seek improvements, and to conduct searches in a manner
that minimally meets constitutional standards, even where
improvements are feasible, Of course, the jury may consider
evidence of these improvements in weighing the parties’
respective positions; but it does not entitle plaintiffs to
prevail as a matter of law.

For the foregoing reasons, the parties’ cross-motions for
summary judgment on plaintiffs’ claim that the manner in which
the strip search is conducted, in large non-private group
settings, violates the Fourth Amendment are denied.

As to plaintiffs’ Fourth Amendment claim based on
unreasonable delay, although defendants’ Rule 54(b) motion for
reconsideration seeks to vacate the entirety of the July 30
Order, defendants do not argue any basis for revisiting my
disposition of this claim. Motions for reconsideration--
regardless of whether brought under Rule 54(b) or Rule 59(e)--
serve a limited function, and are appropriate only to correct
manifest errors of law or fact or to present newly discovered
evidence. Rothwell Cotton Co. V. Rosenthal & Co., 827 F.2d
246, 251 (7 Cir. 1987) (quoting Keene Corp. v. Int'l Fid. Ins.
Co., 561 F.Supp. 656, 665-66 (N.D.I11. 1982), aff'd, 736 F.2d
388 (7 Cir.1984) (citation and footnote omitted)), amended
by, 835 F.2d 710 (7 Cir. 1987). As defendants have not

asserted that any of these grounds applies to my denial of

38



circumstances of that case, defendants still bear the burden
of proving in this case, on this record, that the security
concerns they assert justify maintaining a facially
discriminatory policy. Their burden is high, but it is not
insurmountable. Defendants may convince a jury that the
differences between the male and female inmate populations
(for example, the substantial size difference as well as
asserted differences in the nature and frequency of dangerous
incidents in each population), justify continuing to process
male actual discharges together with the other male court
returns, despite the fact that female actual discharges are
entitled, pursuant to Gary, to a less intrusive practice.
Indeed, CCDOC administrators have testified that the “simple”
solution available in Gary is not feasible here due to
logistical constraints that are inseparable from security
concerns.

I conclude that the ultimate question is best framed as
whether defendants have demonstrated an exceedingly persuasive
justification for CCDOC’s policy and practice of processing
male actual discharges together with the male general court
return population, while female actual discharges are
segregated and processed separately from the female court
return population. This formulation both identifies the

challenged policy in terms that affirmatively apply to the

26


court returns, to avoid being subjected to a strip search by

electing to remain in the Jail’s receiving area while their release
was processed, rather than return to their housing divisions,
violated plaintiffs’ right to equal protection. I also held that
defendants’ policy and practice of affording certain privacy
accommodations to female court returns who are strip searched but
not to male court returns, all of whom are strip searched, violated
plaintiffs’ right to equal protection. I further held that the
blanket strip search policy of all male court returns violated
plaintiffs’ Fourth Amendment rights. I also denied defendants’
motion, which sought summary judgment of non-liability on all of
plaintiffs’ claims, in its entirety. In particular, I held that
defendants are not immune: from liability under the Eleventh
Amendment as a matter of law, and that a material factual dispute
existed as to whether the length of plaintiffs’ detention was
reasonable.'

Now before me is defendants’ motion for reconsideration of my
July 30 Order. For the reasons discussed below, that motion is
granted in part. To the extent the motion is granted, on
reconsideration, I resolve the parties’ cross-motions for summary

judgment as set forth below.

‘The July 30 Order stated that both sought parties summary
judgment on the issue of unreasonable delay. In fact, only
defendants sought summary judgment on this issue.

2


institutional safety, it may conclude that CCDOC’s current
procedure is unreasonable. If, however, the jury credits
defendants’ witnesses, and determines that the Jail officials
are within their discretion to execute the current procedure
as necessary to institutional security, it could conclude that
the searches are reasonable, notwithstanding that some of the
inmates searched will ultimately be determined to have had no
charges pending at the time of the search.

Mary Beth G. does not preclude the latter of these
potential outcomes. Although the court determined in that
case that the City of Chicago lacked reasonable suspicion as
to female misdemeanor offenders as a class, it did not go so
far as to hold that individualized reasonable suspicion as to
each detainee was required, and implicitly acknowledged that
reasonable suspicion may exist as to other classes of
offenders (such as those charged with prostitution, assault,
or narcotics violations, 723 F.2d at 1273). Accordingly, if
a jury finds that security considerations prevent the
segregation of actual discharges before they return to their
divisions, it could also conclude that the blanket searches
were reasonable, based on reasonable suspicion as to some or
all of.the remaining court returns.

For the foregoing reasons, the parties’ cross-motions for

summary judgment on plaintiffs’ claim that defendants’ policy

34



circumstances and claims in those cases are certainly relevant
to the justifications defendants now assert. Defendants
continue to bear the burden of demonstrating an exceedingly
persuasive justification for the gender-based classification
underlying the differential use of privacy dividers.
Nevertheless, the question is properly framed not as whether
not providing dividers to men furthers an important government
interest, but rather whether providing them to women in the
first instance did so.“

Defendants assert “the objective of protecting women from
embarrassment related to menstruation” in support of their
gender-based classification. Plaintiffs do not claim that
this objective is unimportant, nor that the use of privacy

dividers for women is insufficiently related to its

achievement. Instead, plaintiffs attack defendants’
justification by claiming that it “fails to appreciate that
strip searches can be equally embarrassing, repulsive and
degrading to males.” This may be true (as noted above, this
is why men and women are similarly situated), but defendant is
entitled to have a jury weigh the evidence and decide whether
the added factor of menstruation justifies differential

treatment. As noted above, “a gender-based classification

Mr assume, for the present discussion, that defendants were
not independently obligated under the Fourth Amendment to use
privacy dividers for either men or women.

29



generally discharged in appreciably less time than the eight and
eight-and-a-half hours alleged by plaintiffs Bullock and Reid. *®
The option for female possible discharges to remain in the
RCDC while their records are reviewed and their release is
processed is, the parties agree, the result of an injunction issued
in Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 (N.D. Ill., Aug.
20, 1998) (Coar, J.). During that litigation, in March of 1997,
Judge Coar preliminarily enjoined the Cook County Sheriff from
strip searching female possible discharges, “unless after their
return a computer check of their record indicates there are other
reasons for holding the inmate or unless the female court return
{wlants to return to her living quarters to recover personal
items.” Id., Docket No. 37 (minute order). Pursuant to this
injunction, which later became final, the Executive Director of the
Jail issued a memorandum in 1997 setting forth the procedure

described above. Around the same time, the CCDOC executive staff

plaintiffs allege that the process averages two hours for
female actual discharges. Defendants raise several colorable
objections to plaintiffs’ evidence, including that it purports to
be based on data produced by defendants but does not accurately
reflect that data. Both parties reference the underlying data by
document control number (i.e., “Bates” number), not by exhibit
number, and I have been unable to locate the data in the record.
Nevertheless, in their response to plaintiffs’ statement of fact,
defendants cite several discharge times they believe are reflected
in that data, ranging from two hours and forty-five minutes to four
hours and forty-five minutes. Thus, although this evidence is
obviously insufficient to compare averages, even the longest female
discharge time cited by defendants is considerably shorter than
eight hours.

13


Corp., 475 U.S. 574, 586 (1986). “The mere existence of a
scintilla of evidence in support of the [nonmovant’s] position will
be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmovant ].” Anderson, 477 U.S. at 252.

Plaintiffs seek summary judgment on the following claims:

1. The strip searching of all male court discharges and

not all female court discharges violates the Equal

Protection Clause.

2. The strip searching of all male court discharges in

large non-private group settings with up to fifty inmates

while the female court discharges, who opt to return to

the housing divisions, are afforded privacy violates the

Equal Protection Clause.

3. The strip searching of all male court discharges not

based upon reasonable suspicion that they are concealing

contraband violates the Fourth Amendment.

4. Assuming, arguendo, the Defendants are entitled to

strip search all male court discharges, the manner in

which the strip search is conducted, in large non-private
group settings violates the Fourth Amendment.

Defendants oppose plaintiffs’ motion and seek summary judgment
in their favor on the grounds that 1) the strip search policy and
practice applied to plaintiffs was not unreasonable; 2) plaintiffs
cannot prevail on their equal protection claims; 3) plaintiffs
“unreasonable delay” in discharge claims are not actionable; and 4)
defendants are immune from suit under the Eleventh Amendment.

A. Equal Protection

The essential mandate of the Equal Protection Clause is that
“all persons similarly situated should be treated alike.” City of
Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985)

16