IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARCUS BARNES, individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

)

v. ) No. 20-cv-2137

)

ROB JEFFREYS, in his official )

Capacity as the Director of the Illinois )

Department of Corrections, )

)

Defendant. )

PLAINTIFF’S MOTION FOR CLASS CERTIFICATION 

PURSUANT TO FED. R. CIV. P. 23(B)(2) AND FOR APPOINTMENT 

OF CLASS COUNSEL PURSUANT TO FED. R. CIV. P. 23(G)(1)

Plaintiff, through counsel, respectfully requests that this Court enter an order 

pursuant to Federal Rule of Civil Procedure 23(b)(2) certifying this case as a class 

action on behalf of all individuals who have been convicted of sex offenses and 

completed their court-imposed sentence of incarceration but remain imprisoned in 

the Illinois Department of Corrections because they cannot find housing that 

complies with 730 ILCS 5/3-3-7(a)(7.6). Plaintiff further requests that this Court 

enter an order appointing the undersigned attorneys as class counsel. In support 

thereof, Plaintiff states as follows.

INTRODUCTION

Plaintiff challenges the constitutionality of 730 ILCS 5/3-3-7(a)(7.6) (hereinafter 

“the One-Per-Address Statute.”). The Statute prohibits any individual on 

mandatory supervised release for a sex offense from residing “at the same address 

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or in the same condominium unit or apartment unit or in the same condominium 

complex or apartment complex with another person he or she knows or reasonably 

should know is a convicted sex offender or has been placed on supervision for a sex 

offense.”

Plaintiff Marcus Barnes, and the members of the class he seeks to represent, 

have all completed their court-ordered terms of incarceration and are entitled to 

release on Mandatory Supervised Release (“MSR”). They remain in prison because 

they cannot find an approved “host site” at which to live while on MSR due to the 

enforcement of the One-Per-Address Statute. 

Plaintiff claims enforcement of the Statute against him and others similarly 

situated violates the Eighth Amendment. Plaintiff seeks injunctive and declaratory 

relief on behalf of the class against Rob Jeffreys in his official capacity as the 

director of the Illinois Department of Corrections. Mr. Jeffreys is the public official 

with ultimate authority for enforcement of the One-Per-Address Statute.

Plaintiff’s claims are ideally suited to proceed as a class action under Federal 

Rule of Civil Procedure 23(b)(2). As set forth below, the proposed class satisfies each 

element of Rule 23(a) because (1) the class is so numerous that joinder of all 

members is impracticable; (2) there are questions of law or fact common to the class;

(3) the claims of the named Plaintiff are typical of the claims of the class; and (4) the 

named Plaintiff will fairly and adequately protect the interests of the class. Fed. R. 

Civ. P. 23(a). Moreover, this matter meets the requirements for class certification 

under Rule 23(b)(2) because Defendant has acted in a manner that applies 

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generally to the class as a whole, rendering class-wide injunctive and declaratory

relief appropriate under Fed. R. Civ. P. 23(b)(2).

ARGUMENT

I. The Court Should Certify the Proposed Class

For a district court to certify a class action, the named plaintiff and the proposed 

class must satisfy the numerosity, commonality, typicality, and adequacy 

requirements of Rule 23(a) and the requirements of at least one subsection of Rule 

23(b). Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Here, because the 

named Plaintiff and the proposed class meet all four Rule 23(a) requirements and 

the requirements of Rule 23(b)(2), the class should be certified.

A. The Proposed Class Meets All of the Requirements of Fed. R. Civ. P. 

23(a) and 23(b)(2)

1. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that the class be “so numerous 

that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). A class 

“including more than 40 members” generally meets this standard. Barragan v. 

Evanger’s Dog and Cat Food Co., 259 F.R.D. 330, 333 (N.D.Ill. 2009); Streeter v. 

Sheriff of Cook County, 256 F.R.D. 609, 612 (N.D. Ill. 2012) (same); accord William 

B. Rubenstein, et al., Newberg on Class Actions, § 3:12 (5th ed. 2011) (“a class of 40 

or more members raises a presumption of impracticability of joinder based on 

numbers alone.”)

Here, the proposed class easily satisfies this standard. According to the final 

report of the Illinois Sex Offenses & Sex Offender Registration Task Force, 

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published in December 2017, “[o]n average, the Illinois Department of Corrections 

houses 1,200 to 1,400 offenders who may not be released from custody because they 

are unable to secure permanent, stable housing meeting Illinois statute 

requirements or agency policy.”1 If only five percent of those individuals are being 

held due to the One- Per-Address Statute, the class would easily satisfy the 

numerosity requirement. Moreover, the number of individuals imprisoned in IDOC 

due to a lack of compliant housing has grown substantially since the publication of 

the Task Force Report and continues to grow every month as additional individuals 

finish their sentences of imprisonment and become eligible for release on MSR.

2. Commonality

Rule 23(a)(2) requires that “there are questions of law or fact common to the 

class.” Fed. R. Civ. P. 23(a)(2). The Seventh Circuit has observed that a “common 

nucleus of operative fact is usually enough to satisfy the commonality requirement.” 

Rosario, 963 F.2d at 1018; Streeter, 256 F.R.D. at 612 (same). 

An injunctive challenge to a statute that applies generally to all members of the 

class is a textbook example of a case that satisfies the commonality requirement 

and warrants class certification. Indeed, this Court and the Seventh Circuit have

repeatedly recognized that “[a] class action is ... an appropriate vehicle to address 

what is alleged to be a systemic problem.” Coleman v. County of Kane, 196 F.R.D. 

505, 507 (N.D. Ill. 2000) (finding commonality in case challenging sheriff’s policy 

regarding bond fees); Corey H. v. Board of Educ. of City of Chicago, No. 92 C 3409, 

																																																							 1 Available at: http://www.icjia.state.il.us/news/sex-offenses-and-sex-offenderregistration-task-force-final-report

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2012 WL 2953217, at *7 (N.D. Ill. Jul. 19, 2012) (“Plaintiffs have attacked ... 

systemic failures and district-wide policies that apply to every member of the 

certified class ...”); Olson v. Brown, 594 F.3d 577 (7th Cir. 2010) (finding a class

action was an appropriate vehicle to challenge jail policies concerning responding to 

inmates’ grievances and opening inmates’ legal mail); Streeter v. Sheriff of Cook 

County, 256 F.R.D. 609, 612–13 (N.D. Ill. 2009) (certifying class of detainees 

challenging the Cook County jail’s strip search policy).

Here, the named Plaintiff and all members of the proposed are challenging the 

constitutionality of the same statute. Accordingly, all of the core factual and legal 

questions are appropriate for resolution on a class-wide basis. These common 

questions include the following:

• What are the rationales for the One-Per-Address Statute; 

• Whether there is any compelling interest served by the Statute;

• Whether the Statute violates the Eighth Amendment as applied to the 

members of the class. 

Because there are common questions of law and fact pertaining to all members 

of the class, this matter meets the commonality requirement of Fed. R. Civ. P. 

23(a)(2).

3. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties 

are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The 

standard for determining typicality is not an identity of interest between the named 

plaintiffs and the class, but rather a “sufficient homogeneity of interest.” Jones v. 

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Blinziner, 536 F. Supp. 1181, 1190 (N.D. Ind. 1982) (citing Sosna v. Iowa, 419 U.S. 

393, 403 n.13 (1975)). “[T]he typicality requirement is liberally construed.” Gaspar 

v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996). A “plaintiff’s claim is typical if 

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

claims of other class members and [is] based on the same legal theory.” De La 

Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). This 

requirement “is meant to assume that the named representative’s claims ‘have the 

same essential characteristics as the claims of the class at large.’” Oshana v. Coca–

Cola Co., 472 F.3d 506, 514 (7th Cir. 2006).

Where, as here, the named plaintiffs’ injuries arise from a generally applicable

statute affecting all members of the class, typicality exists even if there are factual 

differences in precisely how the policy was applied to each plaintiff. Streeter v. 

Sheriff of Cook County, 256 F.R.D. 609, 612-13 (N.D. Ill. 2009) (certifying class of 

detainees strip searched upon entry to Cook County Jail, despite the Sheriff’s 

argument that there were differences in the circumstances of each search “because 

‘the likelihood of some range of variation in how different groups of ... detainees 

were treated does not undermine the fact that the claims of each class [member] 

share a common factual basis and legal theory.’”); Areola v. Godinez, 546 F.3d 788, 

798 (7th Cir. 2008) (typicality satisfied where plaintiff was in the “same boat” as 

other Cook County Jail detainees who had been denied crutches); Bullock v. 

Sheahan, 225 F.R.D. 227, 230 (N.D. Ill. 2004) (“[p]otential factual differences” 

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relating to individual searches held insufficient to defeat typicality in a jail strip 

search case).

In this case, the named Plaintiff’s claims are typical of the class as a whole. 

Plaintiff Barnes is currently detained in IDOC despite having completed his term of 

incarceration because he is subject to the One-Per-Address Statute. Each member of 

the proposed class is in the same situation. As such, Plaintiff is subject to the same 

policy applicable to every member of the class. Moreover, the named plaintiff and 

each class member has the same legal theories—that is, that the challenged statute

violates the Eighth Amendment. Accordingly, the named Plaintiff satisfies Rule 

23(a)(3)’s typicality requirement. See Fonder v. Sheriff of Kankakee County, No. 12-

CV-2115, 2013 WL 5644754, at *6 (C.D. Ill. Oct. 15, 2013) (typicality satisfied where 

“Plaintiff is challenging the same strip search policy as the class he seeks to 

represent”); Olson, 284 F.R.D. at 411 (typicality satisfied where class representative 

and members of proposed class had their legal mail opened improperly by 

correctional officers).

4. Adequacy

Rule 23(a)(4) requires that the named plaintiffs “will fairly and adequately 

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequate 

representation inquiry consists of two parts: “(1) the adequacy of the named 

plaintiffs as representatives of the proposed class’ myriad members, with their 

differing and separate interests, and (2) the adequacy of the proposed class counsel.” 

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Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011). Both elements 

are met here. 

a. Plaintiff Is an Appropriate Representative of the Interests of 

the Class 

The named Plaintiff will fairly and adequately protect the interests of the class.

The named Plaintiff is currently being detained in IDOC pursuant to the allegedly 

unconstitutional statute. Both the named Plaintiff and the members of the proposed 

class have a common interest in ensuring that this statute is enjoined. The named 

Plaintiff and the class members raise the same claims and seek the same relief, and 

the class representative does not have interests antagonistic to the interests of the 

class. Plaintiff Barnes is committed to obtaining an injunction to prevent future 

violations of detained individuals’ constitutional rights. Accordingly, Plaintiff

Barnes has a strong personal stake in the proceedings that will “insure diligent and 

thorough prosecution of the litigation.” Rodriguez v. Swank, 318 F. Supp. 289, 294 

(N.D. Ill.1970), aff'd 403 U.S. 901 (1971).

b. Adequacy of Representation

The named Plaintiff is represented by experienced civil rights counsel who are

well qualified to represent the interests of the members of the class and have

devoted substantial time and resources to vigorously prosecuting this case. Ms. 

Nicholas and Mr. Weinberg have successfully litigated numerous constitutional 

cases in which broad equitable relief was sought, including the Murphy class action

which raised claims closely related to the claim raised here. See, e.g., Murphy v. 

Raoul, 16 C 11471, 380 F. Supp. 3d 731 (N.D. Ill., 2019) (Kendall, J.) (certified class 

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action; obtained permanent injunction governing IDOC procedures for releasing sex 

offenders on MSR); RCP Publications Inc. v. City of Chicago, 15 C 11398 (certified 

class action; obtained permanent injunction prohibiting enforcement of City’s signposting ordinance and class-wide damages); Adair v. Town of Cicero, No. 18 C 3526, 

2019 U.S. Dist. LEXIS 110949 (N.D. Ill. July 3, 2019) (pending certified class action 

on behalf of women detained in Town of Cicero police lockup); Koger v. Dart, 114 F. 

Supp. 3d 572 (N.D. Ill., 2015) (obtained declaratory judgment holding ban on 

newspapers in the Cook County Jail unconstitutional); Pindak v. Dart, 10 C 6237 

(N.D. Ill. 2016) (Pallmeyer, J.) (obtained a permanent injunction ordering the 

sheriff to train deputies concerning First Amendment rights); Norton v. City of 

Springfield, 806 F. 3d 411 (7th Cir. 2015) (obtained a injunction barring the City of 

Springfield from enforcing its municipal panhandling ordinance). 

Because the Plaintiff Barnes has demonstrated a commitment to vigorously 

pursuing class-wide relief and because he is represented by competent and 

experienced counsel, he satisfies Rule 23(a)(4)’s adequacy requirements.

5. Plaintiff Satisfies Fed. R. Civ. P. 23(b)(2) Because this Case 

Seeks Declaratory and Injunctive Relief from Policies that 

Impact the Entire Proposed Class

The final requirement for class certification is that the named plaintiff must 

meet the requirements of at least one of the subsections of Rule 23(b). Subsection 

(b)(2) requires that “the party opposing the class has acted or refused to act on 

grounds generally applicable to the class, thereby making appropriate final 

injunctive relief or corresponding declaratory relief with respect to the class as a 

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whole.” Fed. R. Civ. P. 23(b)(2). Courts have long recognized that civil rights class 

actions are the paradigmatic 23(b)(2) suits, “for they seek classwide structural relief 

that would clearly redound equally to the benefit of each class member.” Marcera v. 

Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979), vacated on other grounds, 442 U.S. 

915 (1979); see also Alliance to End Repression v. Rochford, 565 F. 2d 975, 979 n.9

(7th Cir. 1977) (“Rule 23(b)(2) ... is devoted primarily to civil rights class actions 

which allege violations of constitutional rights.”) (citing Advisory Committee Notes 

to the 1966 Amendments to Rule 23.) As stated in the leading treatise on class 

actions:

Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights 

suits. Most class actions in the constitutional and civil rights areas 

seek primarily declaratory and injunctive relief on behalf of the class 

and therefore readily satisfy Rule 23(b)(2) class action criteria.

A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002). Because 

this case seeks class-wide injunctive and declaratory relief, it is appropriate for 

certification as a class action under Fed. R. Civ. P. 23(b)(2).

II. The Court Should Designate Plaintiff’s Counsel as Class Counsel 

Under Rule 23(g)(1)

Federal Rule of Civil Procedure 23(g) requires that the district court appoint 

class counsel for any class that is certified. Fed. R. Civ. P. 23(g)(1). The attorneys 

appointed to serve as class counsel must “fairly and adequately represent the 

interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). The appointed class counsel must 

be listed in a court’s class certification order. Fed. R. Civ. P. 23(c)(1)(B).

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Rule 23(g) provides four factors for a court to consider in appointing class 

counsel: (1) “the work counsel has done in identifying or investigating potential 

claims in the action;” (2) “counsel’s experience in handling class actions, other 

complex litigation, and the types of claims asserted in the action;” (3) “counsel’s 

knowledge of the applicable law”; and (4) “the resources that counsel will commit to 

representing the class.” Fed. R. Civ. P. 23(g)(1)(A). 

The undersigned attorney satisfies each of these requirements. First, Plaintiff’s

counsel have invested substantial work into preparation of this case, including 

speaking to numerous families and individuals affected by the challenged policies, 

drafting a complaint, drafting a motion for a preliminary injunction and temporary 

restraining order, and conducting extensive legal research concerning the class

members’ claims. Second, as set forth in §I(A)(4)(c) above, Plaintiff’s counsel have

devoted substantial professional resources to litigation on behalf of individuals who 

have been convicted of sex offenses and have significant experience in handling 

complex civil rights litigation, including the kind of claims asserted in this case.

Finally, Plaintiff’s counsel have dedicated and will continue to commit substantial

resources to the representation of this class. In sum, Plaintiff’s counsel fully satisfy

the criteria for class counsel set forth in Rule 23(g), and Plaintiff respectfully 

requests that the Court appoint undersigned counsel to represent the class.

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CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court grant 

the motion for class certification and appoint the undersigned attorney as Class 

Counsel.

Respectfully submitted,

/s/ Adele D. Nicholas

/s/ Mark G. Weinberg

Counsel for Plaintiffs 

Law Office of Adele D. Nicholas

5707 W. Goodman Street

Chicago, Illinois 60630

847-361-3869

adele@civilrightschicago.com

Law Office of Mark G. Weinberg

3612 N. Tripp Avenue

Chicago, Illinois 60641

(773) 283-3913

mweinberg@sbcglobal.net

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