Case 1:03-cv-03086 Document 1 Filed 05/08/2003 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, Plaintiff, -vs-
SHERIFF OF WILL COUNTY,

)

)

)

)

)

)

(jury demand)

) ) MAGISTRATE J:JDGE [\~,6.s0N

Defendant.

)

COMPLAINT DOCKnED

Il!fl,Y 1 2. Z003

Plaintiff, by counsel, alleges as follows:

," --

1. This is a civil action arising under 42 U.S.C. §1983. The jurisi:l1.t:ti0lf of

this Court is invoked pursuant to 28 U.S.c. §1343.

~ 2;

2. Plaintiff Javar Calvin is a resident of the Northern District of Illi10iS.

3. Defendant Sheriff of Will County is sued in his official capacity.

4. In October of 2002, plaintiff was enlarged on bond in a misdemeanor case pending in the state court in Joliet, Illinois.

5. On October 19, 2002, a police officer of the City of Bolingbrook, Illinois arrested plaintiff because records maintained by defendant mistakenly indicated that a warrant had been issued for plaintiff's arrest.

6. Plaintiff was brought to the Will County Jail on October 20, 2002 at about 4:00 a.m. While at the jail, plaintiff repeatedly insisted that he had been arrested by mistake and that he was not sought in any outstanding warrant. Plaintiff's protestations were ignored by jail personnel.

Case 1:03-cv-03086 Document 1 Filed 05/08/2003 Page 2 of 5
-2 -
7. Plaintiff was scheduled to appear before a judge in the morning of Monday, October 21, 2002. Plaintiff determined that he was not among the prisoners who were being taken to court and complained to jail officials. The jail officials responded to plaintiff's complaint by placing him in disciplinary segregation.
8. Shortly after 9:00 a.m. on October 21, 2002, a judge reviewed plaintiff's bail status, concluded that plaintiff was being held in error, and ordered plaintiff's release. Jail personnel ignored this order until 1:00 p.m., when they took plaintiff from disciplinary segregation and brought him before the judge. The judge reaffirmed his order that plaintiff should be released.
9. Jail personnel again ignored the judge's order and returned plaintiff to disciplinary segregation at the jail, where he remained until he was released at about 7:30 p.m. that night.
10. The above described detention caused plaintiff to be deprived of rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States and was the direct and proximate result of the official policies of the Sheriff of Will County.
11. As the direct and proximate result of the above described unlawful detention, plaintiff incurred personal injuries and lost wages.
12. Plaintiff hereby demands trial to a jury.

Case 1:03-cv-03086 Document 1 Filed 05/08/2003 Page 3 of 5
-3 -
WHEREFORE, plaintiff prays that judgment be entered in his favor and against defendant in an amount in excess of twenty five thousand dollars as compensatory damages and that the costs of this action, including reasonable ,lImn,y,' 1m, be "",00 ,g';", d"~dmL~
KENNETH N. FLAXMAN 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2340 (312) 427-3200 attorney for plaintiff

Civil Cover SCheaeste 1:03-cv-03086 Document 1 Filed 05/08/2003 Page 4 of 5 Page I ofl
~~hED COUR'k-~ STATES DISTRICT NORTHERN DISTRICT OF ILLINOIS
Civil Cover Sheet 03(; 3086
1bis automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is reqnired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the fIling and service of pleadings or other papers as reqnired by law. 1bis form is authorized for use only in the Northern District of Illinois.

Plaintiff(s): Javar Calvin

County of Residence: Cook

Plaintiff's Atty:

Kenneth N. Flaxman Kenneth N. Flaxman P.C. 200 S Michigan Ave.,Ste 1240 (312) 427-3200

Defendant(s):Sheriff of Will Connty County of Residence:
Defendant's J!t.MrGISTRATE JLlDGEMmTED
MAY 12 Z003

II. Basis of Jurisdiction:

3_ Federal Question (U.S- not a party)

'-"',I

C''')

III. Citizenship of Principal Parties (Diversity Cases Only)
Plaintiff:-N/A Defendant:-N/A

IV. Origin:

1. Original Proceeding

V. Nature of Suit:

440 Other Civil Rights

VI.Cause of Action:

42 U.S.C. §1983: wrongful incarceration as the resnlt of a policy of

deliberate indifference by the Sheriff of Will County

VII. Requested in Complaint

Class Action: No

Dollar Demand: 25,000

Jury Demand: Yes

VIII. This case IS NOT a refiling of a previously dismissed case.

Signature:

Date:

If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser and change it.

Once correct, print this form, sign and date it and submit it with yOUT new civil action. Note: You may need to adjust the font size

in your browser display to make the form print properly.

Revi"d,06128100

http://www.ilnd.uscourts.govIPUBLIC/forms/auto.Js44.din

Case 1:03-cv-03086 Document 1 Filed 05/08/2003 Page 5 of 5

In the Matter of
Ja"!ir<CaIVin
"VS
ShenffpfW"jU(:::o\J4ty

IV-'~TED STATES DISTRICT COUR~ NuRTHERN DISTRICT OF ILUNO."
Eastern Division
DI1CKETED ,r>
MAY 1 Z Z003 Ca~e +\lumber:

,
APPEARANCES

ARE

HEREBY

FILED

BY

"
THE

UNDERSIGNED

AS

ATTORNEY(s1'~e"i'':'--5-''ir'->---'

f .... ~\)(.:r,"'f <

FIRM
Kenneth N. Flaxman P.c.
STREET ADDRESS
200 S Michigan Ave. Ste 1240
cm'6'~zg, Illinois 60604

IDENTIFICATIONNliMBER (SEE ITEM 4 ON REVERSE)
08830399

MEMBER OF TRIAL BAR?

0 J YES

[ NO

1RIALATTORNEY?

YES li'::J NO 0

SIGNATURE
NAME

(C)

FiRM STREET ADDRESS

CITY/STATE/ZIP

TELEPHONE NUMBER

IDENTIF1CATIONNUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TR1AL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

0 YES
[ J YES YES nL..I

J NO [ J l NO
NO L~J

SIGNA1URE

(B)

NAME

FiRM

STREET ADDRESS CITYISTATEIZIP

-:L...

". "

"

TELEPHONE~BER

IDENTIF1CATIONNUMBER (SEE ITEM 4 ON REVERSE) .,.,

.MEMBER OF TRIAL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

Wis J

YES

J

0 YES

o NO
o NO
D NO

SIGNATURE

(D)

NAME

FIRM

STREET ADDRESS

CITY/STATEIZIP

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE) MEMBER OF TRIAL BAR? TlUAL ATTOR.""ffiY? DESIGNATED AS LOCAL COUNSEL?

o YES
o YES
o YES

0 NO
NO L~
D NO

 </s> Case 1:03-cv-03086 Document 5 Filed 08/08/2003 Page 1 of 6

IN THE UNITED STATES DISTRICf COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN AND

)

WILLIAM VIRBLE MOORE,

)

)

Plaintiffs,

)

)

No. 03 CV 3086

-vs-

)

)

(Judge Gettleman)

SHERIFF OF WILL COUNTY AND )

WILL COUNTY, ILLINOIS,

)

)

Defendants.

)

DOCKETED
AUG 11 Z003
F Il ED
It AUG 0 8 2003

AMENDED COMPLAINT
Plaintiffs, by counsel, alleges as follows:

CLERMICI,CuHASEL W. DOCiC/:.S
• • OI:3TftICT COURT

1. This is a civil action arising under 42 U.S.C. §1983. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1343.

2. Plaintiff Javar Calvin is a resident of the Northern District of Illinois.

3. Plaintiff William Virble Moore is a resident of the Northern District of Illinois.

4. Defendant Sheriff of Will County is sued in his official capacity.

5. Defendant Will County, Illinois is an Illinois municipal corporation joined in this action pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003). Javar Calvin
6. In October of 2002, plaintiff Calvin was enlarged on bond in a misdemeanor case pending in the state court in Joliet, Illinois.

Case 1:03-cv-03086 Document 5 Filed 08/08/2003 Page 2 of 6
-2-
7. On October 19, 2002, a police officer of the City of Bolingbrook, Illinois arrested plaintiff Calvin because records maintained by defendant mistakenly indicated that a warrant had been issued for plaintiffs arrest.
8. Plaintiff Calvin was brought to the Will County Jail on October 20, 2002 at about 4:00 a.m. While at the jail, plaintiff repeatedly insisted that he had been arrested by mistake and that he was not sought in any outstanding warrant. Calvin's protestations were ignored by jail personnel.
9. Calvin was scheduled to appear before a judge in the morning of Monday, October 21, 2002. Calvin determined that he was not among the prisoners who were being taken to court and complained to jail officials. The jail officials responded to Calvin's complaint by placing him in disciplinary segregation.
10. Shortly after 9:00 a.m. on October 21, 2002, a judge reviewed Calvin's bail status, concluded that Calvin was being held in error, and ordered plaintiffs release. Jail personnel ignored this order until 1:00 p.m., when they took Calvin from disciplinary segregation and brought him before the judge. The judge reaffirmed his order that plaintiff should be immediately released.
11. After the judge ordered that plaintiff should be immediately released, jail personnel maintained Calvin in handcuffs and shackles and returned him to the jail.
12. At the jail, Calvin was strip searched and returned to disciplinary segregation, where he remained until he was released at about 7:30 p.m. that night.

Case 1:03-cv-03086 Document 5 Filed 08/08/2003 Page 3 of 6
-3-
William Moore 13. On May 18, 2003, a police officer of the City of Chicago Ridge, Illinois
arrested plaintiff Moore because records maintained by defendant mistakenly indicated that a warrant had been issued for plaintiffs arrest.
14. Moore was brought to, the Will County Jail on May 18, 2003 at about 9:00 a.m.
15. While at the jail, Moore repeatedly insisted that he had been arrested by mistake and that he was not sought in any outstanding warrant.
16. Moore's protestations were ignored by jail personnel who, in accordance with the policies of defendant, held plaintiff overnight at the jail.
17. In accordance with the policies of defendant, Moore was handcuffed, shackled and taken before a judge at about 1:30 p.m. on May 19, 2003. The judge ordered that plaintiff was to be released immediately.
18. After the judge ordered that plaintiff be released immediately, in accordance with the policies of defendant, plaintiff was held in handcuffs and shackles and taken back to the jail where he was strip searched and placed in a cell.
19. Plaintiff was released from the cell after about ten minutes of additional incarceration. CLASS ALLEGATIONS
20. The above described shacklings and strip searches were undertaken in accordance with a policy of defendant Sheriff of Will County.
21. This "strip search/shackling" policy is uniformly applied to all persons after they have appeared in court, irrespective of any court order that they

Case 1:03-cv-03086 Document 5 Filed 08/08/2003 Page 4 of 6
-4 -
be immediately released.
22. Plaintiffs contend that as a result of this "strip search/shackling" policy, they, and others whose immediate release has been ordered by a judge, were deprived of rights secured by Fourth and Fourteenth Amendment.
23. The refusal of jail personnel to take any action to investigate plaintiffs protestations that they were being held in error was the result of the failure of defendant Will County to have adopted a policy to require the speedy investigation of such claims.
24. The absence of such a policy has resulted in numerous persons being wrongfully detained at the Will County jail.
25. Plaintiffs bring this action individually and for the following two subclasses:
i. All persons who, at any time on and after two years preceding the filing of this lawsuit to the date of entry of judgment, were held in handcuffs and shackles at the Will County Jail and strip searched after a judge ordered their immediate release from custody and before being released.
ii. All persons who, in the two year period preceding the filing of this lawsuit to the date of entry of judgment, were held at the Will County Jail on a recalled or already executed warrant issued after having complained that they were being wrongfully held in custody.
26. Each proposed sub-class satisfies each of the prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure and class certification for each subclass is appropriate under Rule 23(b)(3).

•

Case 1:03-cv-03086 Document 5 Filed 08/08/2003 Page 5 of 6

-5 -

27. As the direct and proximate result of the above described unlawful detention, plaintiffs were deprived of their liberty, incurred personal injuries, and lost wages.
28. Plaintiffs hereby demand trial by jury.
WHEREFORE, plaintiffs pray that the Court order that this case may proceed as a class action, that judgment be entered in favor of plaintiffs and each member of the plaintiff class for appropriate damages in an amount in excess of twenty five thousand dollars as compensatory damages and that the costs of this action, including reasonable attorneys' fees, be taxed against defendants.

200 South Michigan Avenue Suite 1240 Chicago, lllinois 60604-2340
(312) 427-3200
attorney for plaintiffs

...

Case 1:03-cv-03086 Document 5 Filed 08/08/2003 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that I caused a copy of the foregoing to be served on Jeffrey S. Pavlovich, Esq., Leahy, Eisenberg & Fraenkel, Ltd., 161 N Clark St, Ste 1325, Chicago, IT. 60601-3288, by first class mail, postage repaid, this 8th day of August, 2003.

South Michigan Avenue
Suite 1240
Chicago, illinois 60604-2340
(312) 427-3200
an attorney for plaintiffs

 </s> Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 1 of 11

/.

Minute Ord~r Form (06f97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Robert W. Gettleman

Sitting Judge if Other than Assigned Judge

CASE NUMBER

03 C 3086

DATE

May 12,2004

CASE TITLE
MOTION:

Javar Calvin Vs Sheriff of Will County
[In the [ollowmg box (a) indLcate the party filing the motion, e.g., plamtiff, defendant, 3rd party plainhff, and (b) state briefly the nature of tile motion being presented.]

DOCKET ENTRY:

( I)

0

(2)

0

(3)

0

(4) 0

• (5)

(6)

0

Filed motion of [use listing in "Motion" box above.] Brief in support of motion due _ _. Answer brief to motion due_ _. Reply to answer brief duc_ _ _.
Hearing
Status hearing set for 5/26/04, at 9:00 a.m.
Pretrial conference[held/continued to] [set forlre-set for] on _ _ set for ___ at ___.

(7)

0

(8)

0

Trial[set for/re-set for] on _ _ _ at _ _. [Bench/Jury trial] [Hearing] held/continued to _ _ at _ _"

(9)

0

• (10)

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(1) 0 FRCP41(a)(2).
[Other docket entry}

Memorandum opInIon and order entered. Accordingly, plaintiffs' motion for class certification is granted with respect to subclasses II and III, and denied with respect to subclass 1.

(11) III

[For further detail see order attached to the original minute order.]

x-
r--
-
'--
'--

No notices required, advised in open eourt. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Dockcting to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.

courtroom

ODS

deputy's

initials

ZO : I ~ld f: I .m11UOZ
Date/time received in ...",\!ilLCl<ll<'~ Off.,e

Ilumber ofnOliccs
MAY 172004
date docketed
date maned notice
mailillg d~puty initials

IS

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 2 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, WILLIAM VIRBLE MOORE, )

and CHARLES DAVIS,

)

)

Plaintiffs,

)

)

v.

)

)

SHERIFF OF WILL COUNTY and WILL

)

COUNTY, ILLINOIS,

)

)

Defendants.

)

No. 03 C 3086 Judge Robert W. Gettleman
DOCKETED
MAY 1 7 2004

MEMORANDUM OPINION AND ORDER

Plaintiffs Javar Calvin, William Moore and Charles Davis, individually and on behalf of

aU others similarly situated, filed this putative class action pursuant to 42 U.s.C. § 1983, alleging

that they were unlawfully arrested and then strip searched while in the custody of defendant, the

Sheriff of Will County. Plaintiffs seek monetary damages for the deprivation of rights secured

by the Fourth and Fourteenth Amendments to the Constitution of the United States.

Plaintiffs have moved pursuant to Fed. R. Civ. P. 23 for certification of three subclasses

defined any person "who, from May 8, 2001 (two years before filing this action) to the date of

entry ofjudgment have been, is [sic], or will be:

1. Arrested on an erroneous computer indication that a warrant has been issued for his (or her) arrest for failure to appear in court in a misdemeanor or traffic case and is held overnight at the Will CountyJail;

II. Arrested on a warrant issued for failure to appear in a misdemeanor or traffic case and, following arrival at the Will County Jail, is or was strip searched without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons.

III. In the custody of the Sheriff of Will County of a traffic or misdemeanor charge (or on a warrant issued for failure to appear on a traffic or misdemeanor

(8

'.

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 3 of 11

charge), taken to court from the Will County Jail, ordered released by the Court or became entitled to release because the charge on which he (or she) was being held was no longer pending or was dismissed at the hearing, was ordered released on his (or her) own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release, was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance, was not the subject of any detainer or warrant, was returned in shackles to the Will County Jail to be processed out ofthe custody of the Sheriff of Will County, and Was [sic] strip searched without any individualized finding of reasonable suspicion that he (or she) was concealing contraband or weapons."
Defendants oppose certification, arguing that: (1) subclass I does not satisfY the
numerosity requirements of Rule 23(a); (2) subclass II does not satisfy the typicality requirement
of Rule 23(a); and subclasses II and III do not have a question oflaw or fact common to the class
that predominates over individual questions of law or fact, thus failing to satisfY Rule 23(b)(3).
FACTS
According to plaintiffs' second amended complaint, each plaintiff was arrested because
defendants maintained records that mistakenly indicated an outstanding arrest warrant when no
such warrant actually existed. Upon arrival at the Will County Adult Detention Facility
("WCADF"Y, each member was allegedly strip searched pursuant to the Sheriffs policy.
Plaintiffs Calvin and Moore repeatedly protested their arrests, insisting that they had no
outstanding warrants. Within two days of each plaintiffs arrest, a judge concluded that each
detention was in error and ordered each plaintiff released. After the release orders issued,
WCADF personnel allegedly maintained each plaintiff in handcuffs and shackles and returned

IPlaintiffs references to "Will County Jail" in the definition of their subclasses have been replaced with "Will County Adult Detention Facility," which defendants submit is the proper name of the facility to which plaintiffs were taken.
2
,..

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 4 of 11
him to WCADF. At the WCADF, personnel allegedly strip searched each plaintiff, returning him to a detention cell for several hours until his eventual release that day.
Plaintiffs contend that defendants' failure to use a more accurate system caused incorrect warrants to issue unchecked, thus amounting to deliberate indifference and the umeasonable detention of subclass I plaintiffs. Plaintiffs also maintain that the Sheriffs policy that allowed strip searches without reasonable suspicion that the arrestee possessed concealed contraband or weapons deprived each subclass II plaintiff of his Fourth Amendment rights. Last, plaintiffs contend that the Sheriffs policy of shackling and strip searching persons who were entitled to immediate release deprived each subclass III plaintiff of his Fourth Amendment rights.
DISCUSSION Fed. R. Civ. P. 23 requires a two step analysis to detennine whether a class should be certified. First, Rule 23(a) requires plaintiffs to demonstrate: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy ofrepresentation. Harriston v. Chicago Tribune Co., 992 F.2d 697,703 (7th Cir. 1993). Second, one of Rule 23(b)'s conditions must be satisfied. Cwiak v. Flint Ink Corp., 186 F.R.D. 494, 496 (N.D. Ill. 1999). In the instant case, Rule 23(b)(3) requires plaintiffs to demonstrate that: "1) common questions must predominate over any questions
affecting only individual members; and 2) class re~olution must be superior to other methods for
the fair and effective adjudication of the controversy." Portis v. City of Chicago, 2003 WL 22078279, *3 (N.D. Ill. Sept. 8,2003) (quoting Joncek v. Local 714 International of Teamsters Health and Welfare Fund, 1999 WL 755051, *7 (N.D. Ill. Sept. 3, 1999». Plaintiffs have the burden of showing compliance with Rule 23. Cwiak, 186 F.R.D. at 496. Defendants challenge certification of each subclass on different grounds.
3

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 5 of 11 , '-
1. Subclass J - The "Bad Warrant" Subclass Defendants oppose certification of subclass I, the "bad warrant" subclass, arguing that plaintiffs fail to demonstrate numerosity. A class may be certified only if the class is so numerous as to make joinder ofall members impracticable. Fed. R. Civ. P. 23(a)(1); Cwiak, at 496. Defendants contend that discovery shows only a handful of potential class members, namely the specific plaintiffs and a few other possible, yet unnamed, members. Defendants point to Sergeant Vitek's deposition testimony that, in his opinion, over the past four years, the Sheriffs records probably show less than five instances of a quashed warrant arrest. Plaintiffs contend that at least 75 people compose the first subclass, emphasizing the deposition testimony of Sergeant Brian Fink, who acknowledged that, perhaps as often as once a week, "a person [is] brought into the jail on a warrant and says that, 'That warrant was quashed; I shouldn't be here. ", Sergeant Fink added, however, that "everybody says that the warrant isn't any good." Plaintiffs also direct the court's attention to plaintiff Davis' deposition, in which he testified that the judge who ordered his release said he was "about the 201 st person coming in here getting falsely arrested." The Fink and Davis deposition excerpts do not persuade the court that the first subclass is sufficiently numerous to merit class treatment. The Fink deposition testimony addresses only how many people complain that they have been brought in invalid warrants; his testimony does not address the number of warrants that actually were quashed. The only evidence before the court regarding the number of actual quashed warrant arrests, which was provided by defendant, indicates that there have been only five incidents. Plaintiffs concede that five incidents alone do not satisfY the numerosity requirement of Rule 23(a).
4

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 6 of 11
Although plaintiffs are not required to show the exact number of people included in the proposed class, Cwiak, 186 F.R.D. at 494, the impracticability ofjoinder must be established by more than mere speculation. See id. at 496 ("[I]mpracticability ofjoinder must be positively shown, and carmot be speculative.") (citations omitted). The court thus denies plaintiffs' motion to certify subclass I. If further discovery reveals a greater number of actual quashed warrant arrests that would satisfy the numerosity requirement, however, plaintiffs may renew their motion to certify subclass I.
2. Subclass II - The "Post-Arrest Strip Search" Subclass Defendants oppose certification of subclass II, the "post-arrest strip search" subclass, arguing that plaintiffs fail to demonstrate, (1) typicality, and (2) a common question oflaw or fact that predominates over individual issues. The court addresses each of these arguments in turn below. A class may be certified only if the claims of the representative parties are typical of the claims of the class. Fed. R. Civ. P. 23(a)(3); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225,232 (7th Cir. 1983). Defendants argue that the class definition is overbroad and indefinite, thus making it too difficult for the court to "determine whether a particular individual is a member of the proposed class." See Clay v. American Tobacco Co., 188 F.R.D. 483, 490 (S.D.1l1. 1999). In arguing that the class is indefinite, defendants hypothesize a split in the class between those members who were strip searched and released on bond and those members who were strip searched and admitted as WCADF imnates. The court fails to see how the interests ofthe named plaintiffs, who were strip searched prior to being admitted as imnates, are not aligned with the interests of those class members who
5
'·',1',"

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 7 of 11
were strip searched prior to posting bail. Plaintiffs are challenging the policy of strip searching each person arrested on a warrant for failure to appear in a misdemeanor or traffic case without first making an individualized finding of reasonable suspicion or probable cause that he or she was concealing contraband or weapons. According to plaintiffs, the strip searches allegedly occurred "upon arrival," and the challenged policy applied to every arrestee regardless of whether he was later released on bond or admitted as a WCADF inmate. As plaintiffs point out, every member of the "post-arrest strip search" subclass advances the same claim that the Sheriffs uniforru strip search policy (specifically, to strip search all persons arrested on "failure to appear" warrants) is unconstitutional as applied to persons in custody on warrants issued in traffic and misdemeanor cases. The court thus concludes that plaintiffs have satisfied the typicality requirement.
Defendants further argue that, even if sufficiently definite, certification of subclass II should be denied because it fails to satisfy Rule 23(b)(3)'s requirement that questions oflaw or fact common to the members of the class must predominate over any questions affecting only individual members. According to defendants, "Requiring this court to make an individualized deterruination of the constitutionality of the search conducted by WCADF personnel, as applied to each potential class member, renders the proposed second subclass unmanageable." In this vein, defendants argue that the deterruination of whether a person is a member of subclass II carmot be made without hearing evidence on the circumstances of each person's arrest and search, which would include an individualized inquiry into whether there was reasonable suspicion that each class member had some hidden drugs or weapons at the time of the search.
6

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 8 of 11
Defendants misconceive the way in which reasonable suspicion factors into the class. Plaintiffs allege that under the uniform strip search policy adopted by the Sheriff, j ail personnel never undertook reasonable suspicion or probable cause inquiries. Thus, the ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, but whether the Sheriffs policy avoided all such inquiry, thus depriving those individuals of their Fourth and Fourteenth Amendment rights. The question of the validity of the Sheriffs policy thus predominates over any "individualized questions." See Blihovde v. St. Croix County. Wis., 219 F.R.D. 607, 620 (W.D. Wis. 2003) ("[T]he case law suggests that when the class is challenging a uniform policy, the validity of that policy predominates over individual issues and class certification is appropriate")? See also Mack v. Suffolk County,191 F.R.D. 16,24 (D.Mass. 2000) ("To require plaintiffto prove that each individual search was unsupportable, as well as indiscriminate, would be unnecessary and unfair. Given that these [persons] were routinely strip searched, the burden rests on defendants to demonstrate that particular searches were reasonable.") (citing Doe v. Calumet City, Ill., 754 F. Supp. 1211 (ND.Ill. 1990)).
For these reasons, the court certifies subclass II as:
2As plaintiffs point out, the proposed class definition excludes persons who were strip searched based on "reasonable suspicion." Accordingly, in the event that defendants believe that specific searches or classes of searches had a reasonable antecedent justification, defendants are not precluded from offering proof that the subjects of those searches should be excluded from the class. See, e.g., Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1220 (N.D.Ill. 1990). Because Sheriffs Policy and Procedure § 5080 requires elaborate documentation of strip searches conducted on the basis of "reasonable belief' that the imnate is concealing contraband or weapons, identifying such individuals should not be overly burdensome or require extensive factfinding by the parties.
7

>.

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 9 of 11

Any person who, from May 8, 200 I, to the date of entry ofjudgment has been, is, or will be:
Arrested on a warrant issued for failure to appear in a misdemeanor or traffic case and, following arrival at the Will County Adult Detention Facility, is or was strip searched without any individualized finding ofreasonable suspicion or probable cause that he or she was concealing contraband or weapons. 3. Subclass III - The "Post-Release Strip Search" Subclass - Rule 23(b)(3) Defendants oppose certification of subclass ill, the "post-release strip search" subclass, arguing that plaintiffs fail to demonstrate "that the questions oflaw or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). Plaintiffs claim deprivation ofliberty, personal injuries and lost wages as damages in the instant case. Defendants argue that personal injuries and lost wages are individualized questions according to each proposed subclass member's particular circumstances. Defendants concede that certification of a class can be correct even if the class members are entitled to different levels of injury and damages. De La Fuente, 713 F.2d at 233; Gal}' v. Sheahan, 1999 WL 281347 (N.D. Ill. March 31,1999). Nonetheless, defendants argue that certification in the instant case is improper because plaintiffs fail to present detailed evidence that each member's injuries would be of similar type and severity. According to defendants, the level ofpsychological trauma inflicted on each class member varies depending on the individual's particular mental state prior to the strip search (pointing to the difference in the reaction of a first-time arrestee and that of one arrested on
8

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 10 of 11
numerous prior occasions and familiar with the process). The fact that damages may vary based on each plaintiffs mental state is not, however, a sufficient reason to deny certification, because the court may bifurcate the lawsuit so that liability is determined first. If defendants are found liable, the court may then revisit the damages issue, including whether to certify another class or subclasses, or hold individual hearings, for the purpose of resolving damages. Blihovde, 219 F.R.D. at 621 (citing Denberg v. United States R. Retirement Bd., 696 F.2d 1193, 1207 & n.7 (7th Cir. 1983)). See also Portis v. City of Chicago, 2003 WL 22078279, *3 (N.D. Ill. 2003) ("[T]he possibility of individualized damage inquiries does not defeat class certification even if individual hearings ultimately may be required.") (quoting Williams v. Rizza Chevrolet-Geo. Inc., 2000 WL263731, at *3 (N.D. Ill. 2000)).
Defendants' remaining argument for denying certification of subclass III challenges "the possibility that plaintiffs believe they should have been released directly from the courthouse" rather than being returned to the WCADF general population for processing, which entitles defendants to strip search the inmates for contraband. Defendants argue that the returning inmates cannot be held in a holding cell because they must be allowed to collect their personal belongings from their cells in general population. Plaintiffs respond that persons arrested on warrants are unlikely to have personal property to collect upon release because their property is "taken from [them] and held in the property room" rather than their cells. Because this factual dispute goes directly to the merits of plaintiffs' challenge of the Sheriffs policy of returning released inmates to general population (and thus subjecting all of them to strip searches), it is premature. "[A] court may not refuse to certify a class on the ground that it thinks the class will eventually lose on the merits." Loeb Industries. Inc. v. Sumitomo COl]?, 306 F.3d 469, 480 (71h
9

Case 1:03-cv-03086 Document 18 Filed 05/12/2004 Page 11 of 11
Cif. 2002) (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177-78 (1974)). Accordingly, the court need not decide whether the Sheriffs policy passes muster before certifying subclass III.
For these reasons, the court certifies subclass III3 as: Any person who, from May 8,2001, to the date of entry ofjudgment has been, is, or will be:
In the custody of the Sheriff of Will County on a traffic or misdemeanor charge (or on a warrant issued for failure to appear on a traffic or misdemeanor charge), taken to court from the Will County Adult Detention Facility, ordered released by the court, or otherwise became entitled to immediate release, was returned to the Will County Adult Detention Facility to be processed out of the custody of the Sheriff of Will County, and was strip searched without any individualized finding ofreasonable suspicion that he or she was concealing contraband or weapons.
CONCLUSION For the reasons stated above, plaintiffs' motion for class certification is granted with respect to subclasses II and III, and denied with respect to subclass 1. This matter is set for a report on status on May 26,2004, at 9:00 a.m.
ENTER: May 12, 2004
Robert W. Gettleman United States District Jndge
3In the interest of clarity, the court, sua sponte, has simplified the definition of subclass III.
10

 </s> Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, et al., Plaintiff, -vs-
SHERIFF OF WILL COUNTY, Defendant.

)

)

)

)

No. 03 CV 3086

)

)

(Judge Gettleman)

)

)

)

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON LIABILITY

On August 17, 2005, the Court set a schedule for summary judgment submissions, accepting defendants’ suggestion that the legality of the Sheriff’s challenged strip search policies — the existence of which has been conceded by defendants — should be adjudicated without further discovery.1

Rule 56 of the Federal Rules of Civil Procedure requires that a case be
resolved without a trial when "the pleadings, depositions, answers to
_______________
1. Plaintiffs had intended to support their summary judgment motion with data (sought in an outstanding discovery request) about the number of times in which contraband had been discovered either in a strip search of persons arrested on warrants in misdemeanor cases and in a strip search of a person returning from court after that person’s release had been ordered. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (7th Cir. 1983) ("The City introduced several afﬁdavits of security personnel and one statistical survey in an attempt to show that weapons and contraband can be and have been concealed in the vagina.") The Court indicated that plaintiffs could obtain this data if required to respond to the Sheriff’s defense of his policies.

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 2 of 13 - 2 -
interrogatories, and admissions on ﬁle, together with the afﬁdavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." See, e.g., Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Waite v. Board of Trustees of Illinois Community College District No.
508, 408 F.3d 339, 345 (7th Cir. 2005). This rule is properly applied to this
case because all of the material facts concerning the Sheriff’s challenged policies
are undisputed.
I. THE POLICIES CHALLENGED BY THE CLASS This case involves two policies of the Sheriff of Will County: the ﬁrst
policy mandates the strip search of any person arrested on a warrant issued for
failure to appear in a misdemeanor, ordinance violation, or trafﬁc case. The
second policy requires the strip search of all persons following a court appear-
ance at which their release is ordered. Each policy is challenged by a subclass
that the Court certiﬁed under Rule 23(b)(3) in its order of May 12, 2004:
Subclass One Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be arrested on a warrant issued for failure to appear in a misdemeanor or trafﬁc case and, following arrival at the Will County Adult Detention Facility, is or was strip searched without any individualized ﬁnding of reasonable suspicion or probable cause that he or she was concealing contraband or weapons.
Subclass Two Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be in the custody of the Sheriff of Will County on a trafﬁc or misdemeanor charge (or on a warrant issued for failure to appear on a trafﬁc or misdemeanor charge), taken to court from the Will County Adult Detention Facility, ordered released by the court, or otherwise became entitled to immediate release, was returned to the Will County Adult Detention Facility to be processed out of the custody of the Sheriff of Will County, and was

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 3 of 13 - 3 -

strip searched without any individualized ﬁnding of reasonable suspicion that he or she was concealing contraband or weapons.
We show below that the policy challenged by each sub-class is undisputed and unconstitutional.

II. THE FACTS MATERIAL TO THE SHERIFF’S POLICIES ARE UNDISPUTED The Sheriff’s strip search policies are contained in "Policy #5080" of the
"Will County Adult Detention Facility Policy and Procedures." (Plaintiffs’ Rule 56.1 Statement, par. 4.) These policies were explained at a Rule 30(b)(6) deposition by Sergeant Brian Fink.2 (Fink Dep. 3, Plaintiff’s Exhibit 2.)
The strip search conducted at the Will County jail is deﬁned in Policy #5080 as a "visual body cavity search." (Plaintiffs’ Rule 56.1 Statement, par. 5.) Sergeant Fink provided details about this type of search at the Sheriff’s Rule 30(B)(6) deposition (Plaintiffs’ Rule 56.1 Statement, par. 6):

Defense Counsel: Sergeant Fink:

Can you explain for us the practice? First off, we explain to the inmates that we have to do a strip search before you return back to the jail population and we are going to ask you to please cooperate with us. First off we would ask the inmate to remove each

_ ____________
2. Sergeant Fink was an appropriate person to have been designated by the Sheriff to explain the strip search policies — Fink is the author of the written policy, (Plaintiffs’ Exhibit 2, Fink Dep. 5), and he testiﬁed "concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid 801(d)(2)(D).

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 4 of 13 - 4 -
layer of clothing individually and to shake it out in front of us, or in some cases to hand it to us to actually search the pockets.
Once the inmate has removed all of his clothing, he is instructed to — Now the [47] clothing — or he has nothing on. The inmate is instructed to show his hands so he is not — we know that he has not taken anything out of his clothing during the time he was handling it. Show the front, the back, the palms, to lift his arms to be able to examine underneath his arms, to then take his hands and run them behind his ears, and then to take his hands and bend forward and shake his hair out vigorously.
Then he is once again asked to show his hands. The inmate is then told to please turn around and to show the bottoms of his feet, and then to bend over and spread the cheeks of his buttocks with his hands. He is then asked to then stand straight up again, turn around, face the ofﬁcer, and to life his genitals. At that time we would then ask to see his hands again, and then we allow the inmate to redress.
The Sheriff’s written policy requires "a reasonable belief that the inmate is
carrying contraband or other prohibited material" before a "visual body cavity
search" may be performed. (Plaintiffs’ Rule 56.1 Statement, par. 7.) This policy
may well be constitutional if it required an individual determination that there
was "reasonable suspicion that the particular arrestee or detainee" is concealing
weapons or drugs. Thompson v. The County of Cook, No. 03 C 7172, N.D.Ill.
(Mem.Op., August 8, 2005, 15.) The Sheriff, however, does not require any
individual determination of reasonable suspicion in the two settings challenged
in this case.
The Sheriff’s policy assumes that there is a "reasonable belief" that a per-
son is carrying contraband whenever that person has been arrested on a warrant.
(Plaintiffs’ Rule 56.1 Statement, par. 8.) Accordingly, the Sheriff mandates a

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 5 of 13 - 5 -
strip search of every person arrested on a warrant even when the warrant had been issued in a trafﬁc, ordinance/regulatory or misdemeanor case. (Id.)
Subclass One challenges this presumption, asserting that it is not reasonable to assume that a person arrested on a warrant will have sought to hide contraband in a spot where it can only be discovered by a strip search.
The Sheriff also assumes that there is "a reasonable belief that the inmate is carrying contraband or other prohibited material" whenever a prisoner returns to the jail from a court appearance. (Plaintiffs’ Rule 56.1 Statement, par. 9.) On this presumption, the Sheriff requires that all inmates returning from court be strip searched, including those who are to be immediately released. (Plaintiffs’ Rule 56.1 Statement, par. 10.) Subclass Two contends that this presumption is not rationally related to any legitimate penological purpose when it is applied to detainees, like those in Subclass Two, who are about to be released.
III. THE SHERIFF’S POLICIES ARE UNCONSTITUTIONAL Under Fourth Amendment principles that the Seventh Circuit approved in
its afﬁrmance of Tinetti v. Wittke, 620 F.2d 160 (7th Cir. 1980), and applied in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983), the policies challenged in this case are unconstitutional.
Tinetti v. Wittke arose from a policy of the Racine County jail to require the strip search of persons arrested for non-misdemeanor trafﬁc offenses "due to an unwillingness or inability to post bond before their initial appearance in court." 620 F.2d at 160. The Court of Appeals noted that "[t]he search were conducted despite the absence of any probable cause to believe that the detainees were concealing contraband or weapons on their bodies." Id. The

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 6 of 13 - 6 -
district court found the strip search policy to be an unreasonable invasion of privacy, 479 F.Supp. 486, 491 (E.D.Wis. 1979), and the Seventh Circuit afﬁrmed on the district court’s opinion. 620 F.2d at 161.
The Seventh Circuit extended this reasoning beyond "non-misdemeanor trafﬁc offenses" to misdemeanor charges in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983). The Court of Appeals carefully analyzed the difference between a "full search" and a strip search, 723 F.2d at 1269-70, and concluded that "the strip searches bore an insubstantial relationship to security needs so that, when balanced against plaintiffs-appellees’ privacy interests, the searches cannot be considered ‘reasonable.’" (citation omitted) 723 F.2d at 1273.
District courts have applied these principles to invalidate strip search practices at the Calumet City police department, Doe v. Calumet City, 754 F.Supp. 1211, 1220 (N.D.Ill. 1990), and at the Cook County jail. Gary v. Sheahan, 1998 WL 547116 (No. 96 C 7294, N.D.Ill. August 20, 1998). This circuit does not stand alone on this issue: each circuit that has considered the question has concluded that a person arrested on a misdemeanor charge may not be strip searched upon being placed in the general jail population unless there is reasonable suspicion to believe that he (or she) is concealing a weapon or other contraband. Savard v. Rhode Island, 320 F.3d 34, 39-40 (1st Cir. 2003); Shain v. Ellison, 273 F.3d 56, 64-66 (2d Cir. 2001); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Watt v. City of Richardson, 849 F.2d 195 198-99 (5th Cir. 1988); Masters v. Crouch, 872 F.2d 1248, 1355 (6th Cir. 1989); Jones v. Edwards, 770 F.2d 739, 741 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 6145. 615 (9th Cir. 1984); Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984);

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 7 of 13 - 7 -
Wilson v. Jones, 251 F.3d 1340, 1342-43 (11th Cir. 2001). These principles require the invalidation in this case of the Sheriff’s policies.
A. Routine Strip Searches of Persons Arrested on Warrants Issued in Trafﬁc, Ordinance Violation, and Misdemeanor Cases is Unconstitutional The Sheriff acknowledges in his written policy that persons arrested in
trafﬁc, ordinance violation, and misdemeanor cases that involve neither weapons nor drugs should not be routinely strip searched.3 There is no rational basis for applying a different rule to persons arrested on a failure to appear warrant issued in a trafﬁc, ordinance or misdemeanor case.
Illinois law authorizes issuance of a "failure to appear" warrant, also known as a "bench warrant," when an accused has failed to appear in court. 725 ILCS 110-3. Although "a bench warrant does not amount to a judicial ﬁnding of probable cause to arrest in the traditional sense, i.e., that a crime had been committed and that defendant had committed it," (citation omitted) People v. Allibalogun, 312 Ill.App.3d 515, 518, 727 N.E.2d 633, 636 (2000), such a warrant authorizes the Sheriff to "book" a person arrested (or surrendering) on a bench warrant. Doe v. Sheriff of DuPage County, 128 F.3d 586, 588 (7th Cir. 1997). A "bench warrant," however, does not authorize the Sheriff to incarcerate the arrestee, but instead requires the Sheriff to bring the arrestee before
_______________
3. Section L of Policy 5080 states that "[n]o person arrested for a trafﬁc, ordinance/regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance arrest, shall be strip searched." (Plaintiffs’ Rule 56.1 Statement, par. 11.)

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 8 of 13 - 8 -
"the nearest and most accessible judge." 725 ILCS 5/109-1.
The Sheriff appears to concede that there is no rational basis for a presumption that persons arrested on a failure to appear warrant in trafﬁc, ordinance violation, or misdemeanor cases are likely to have secreted contraband on their body. "[A]rrestees do not ordinarily have notice that they are about to be arrested and thus an opportunity to hide something." Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001).
Rather than seeking to defend this irrational presumption, the Sheriff argues that it is lawful to strip search persons arrested on failure to appear warrants in misdemeanor, ordinance violation, and trafﬁc cases because such persons "are legally in custody under [13] the authority of a judge as opposed to an arrest without warrant just by a police ofﬁcer." (Fink Dep. 12-13, Plaintiffs’ Exhibit 2.) This argument is a lengthy non-sequitur: Issuance of a bench warrant does not constitute a ﬁnding that there is a reasonable basis for a strip search; the only judicial ﬁnding underlying a bench warrant is that a criminal defendant failed to comply with a condition of pre-trial release, such as appearing in court.
Equally without merit is the Sheriff’s argument that Illinois law authorizes the strip search of persons arrested on bench warrants. (Defendants’ Response to Plaintiffs’ Motion to Stay Discovery from Individual Class Members, Record Item No. 44, at 6.) The statute on which defendants rely, 725 ILCS 5/103-1(j), provides that the state law prohibition of strip searching persons arrested for a trafﬁc, regulatory, or misdemeanor cases (other than in cases involving weapons or a controlled substance) "shall not apply when the person is taken into custody by or remanded to the sheriff or correctional institution pursuant to a court

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 9 of 13 - 9 -
order." If this case was governed by Illinois law, plaintiffs would argue that 725 ILCS 5/103-1(j) does not apply to a person arrested on a bench warrant, who is in the custody of the sheriff only until he (or she) can be brought before "the nearest and most accessible judge." 725 ILCS 5/109-1. Illinois law, however, is not controlling on the Fourth Amendment claims at issue in this case: "A discriminatory state law is not a defense to liability under federal law; it is a source of liability under federal law." Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir. 1995).
The irrationality of the Sheriff’s presumption that persons arrested on warrants is reﬂected in the policy of the DuPage County Jail. General Order COR 6-9.8 of the DuPage County Jail, (Plaintiff’s Exhibit 3) governs searches of inmates. (Plaintiffs’ Rule 56.1 Statement, par. 14.) Section III (C)(1)(a) of this rule authorizes a strip search when the inmate has been arrested on a new charge involving drugs or weapons, as long as "there is reasonable belief established that the inmate has additional drugs or paraphernalia on his/her person, which is not detectable in a complete, accurate, and thorough pat search." (emphasis in original) (Plaintiffs’ Rule 56.1 Statement, par. 15.) The rule expressly states, however, that an arrest on a new charge does not include arrests on a "failure to appear warrant." Id.
The Fourth Amendment prohibits the routine strip search of persons arrested on trafﬁc, ordinance violation and misdemeanor charges (which do not involve weapons or drugs). This rule applies with equal force when a person is in custody on a failure to appear warrant issued in a trafﬁc, ordinance violation and misdemeanor case. Accordingly, summary judgment on liability should be entered in favor of Subclass One and against the Sheriff of Will County.

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 10 of 13 - 10 -
B. The Routine Strip Searches of Persons Returning from Court Who Are Awaiting Release from Custody Is Unreasonable The Sheriff has to date failed to offer any defense of his practice of
requiring the strip search of persons returning from court who are awaiting release from the jail. We note that a similar practice resulted in a sizable damage award in Young v. City of Little Rock, 249 F.3d 730, 735-36 (8th Cir. 2001).
In Bell v. Wolﬁsh, 441 U.S. 520 (1979), the Court considered a challenge to a Bureau of Prisons rule that required the strip search of every inmate returning from a "contact visit with a person from outside the institution." Id. at 558. The Court concluded that the rule was related to stopping the "[s]muggling of money, drugs, weapons, and other contraband" into the institution, id. at 559, and upheld the rule by "[b]alancing the signiﬁcant and legitimate security interests of the institution against the privacy interests of the inmates." Id. at 560. The Sheriff’s rule of strip searching persons who are to be released from the jail ﬂunks this balancing test.
The Sheriff’s policy of "strip search before release" has no relationship to institutional safety, as the district court recognized in Gary v. Sheahan, 1998 WL 547116 (No. 96 C 7294, N.D.Ill. August 20, 1998). There, the court invalidated the routine strip search of detainees at the Cook County jail after they had been ordered released from custody by a judge on the following reasoning:
[T]he question currently under review is whether the searches conducted on female detainees after they had been ordered released from custody by a judge is unreasonable under the circumstances. In order to determine reasonableness, the court must balance the prison’s need for security with the privacy interests of the plaintiffs. A court in this district has explained the balancing test as follows:
[I]f jail security is to justify the search the detainee must

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 11 of 13 - 11 -
present some threat to jail security. The facts in the cases where searches have been upheld suggest some reasonable cause on the part of the authorities to suspect that the detainees might be trying to smuggle weapons or contraband into the jail. A person detained for a violent crime may presumptively be suspected of carrying a weapon. However, when an arrestee is being detained brieﬂy awaiting the posting of bond on a trafﬁc or misdemeanor offense, generally a strip-search can be made only on reasonable suspicion that the arrestee is carrying or concealing a weapon or contraband, unless authorities can demonstrate that misdemeanants regularly pose a threat to jail security.
Simenc v. Sheriff of DuPage County, No. 82 C 4778, 1985 WL 4896, at * 3 (N.D.Ill. December 9, 1985) (Moran, J.) (citations omitted).
Pursuant to this test, variety of courts have found that strip searches in the prison context may be unconstitutional. For example, in Doe v. Calumet City, 754 F.Supp. 1211, 1218 (N.D.Ill. 1990) (Shadur, J.), the court found that the Constitution prohibits blanket strip search policies that do not distinguish between arrestees. Similarly, in Tinetti v. Wittke, 479 F.Supp. 486, 491 (E.D.Wis. 1979), aff’d, 620 F.2d at 160 (7th Cir. 1980), the court concluded that strip searches of detainees for nonmisdemeanor trafﬁc violations are unconstitutional absent probable cause to believe the offender is concealing contraband or weapons. This court’s analysis of the case law leads to the conclusion that the defendant must—at the least—have a reasonable suspicion that the plaintiff class member is carrying or concealing a weapon or contraband. The plaintiffs, as women for whom there is no longer any basis for their detention, clearly have a privacy interest in their body parts which is as great, if not greater, than that of pretrial detainees. See Tinetti, Mary Beth G., supra. As such, the defendant’s blanket policy of strip searching all court returns— including those who may proceed for release—is constitutionally suspect. See Doe, supra.
Gary v. Sheahan, 1999 WL 281347, *12-*13 (No. 96 C 7294, N.D.Ill. March 31, 1999)
The district court’s reasoning in Gary v. Sheahan, supra, is fully applica-
ble to this case. Accordingly, summary judgment on liability should be entered

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 12 of 13 - 12 -
in favor of Subclass Two and against the Sheriff of Will County.
IV. CONCLUSION For the reasons above stated, the Court should grant summary judgment
on liability in favor of each subclass and against the Sheriff of Will County.
Respectfully submitted,
/s/ Kenneth N. Flaxman ________________________ KENNETH N. FLAXMAN 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604 (312) 427-3200 ARDC No. 830399 attorney for the plaintiff class

Case 1:03-cv-03086 Document 48 Filed 08/31/2005 Page 13 of 13
CERTIFICATE OF SERVICE
I hereby certify that I caused a copy of the foregoing to be served on Kevin J. Clancy, Lowis & Gellen, 200 West Adams, Ste 1900, Chicago, Illinois 60606, by ﬁrst class mail, postage prepaid, this 31st day of August, 2005.
/s/ Kenneth N. Flaxman ________________________ KENNETH N. FLAXMAN 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604 (312) 427-3200 ARDC No. 830399
attorney for plaintiff

 </s> Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 1 of 26

IN THE UNTTED STATES DISTRTCT COURT FOR TIlE NORTIIERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, WTLLIAM VTRBLE MOORE, )

and CHARLES DAVIS,

)

)

Plaintiffs,

)

)

v.

)

)

SHERJFF OF WILL COUNTY,

)

)

Defendant.

)

No_ 03 C 3086 Judge Robert W. Gettieman

MEMORANDUM OPINION AND ORDER

Plaintiffs Javar Calvin, William Moore and Charles Davis, individually and on behalf or all others similarly situated, filed a dass action on May 8, 2003, pursuant to 42 U.S.c. ~ 1983, challenging certain provisions of the strip search policy of defendant, the Sheriff of Will County

("Sheriff')_ In its Memorandum Opinion and Order dated May 17, 2004, this court granted plaintiffs' motion to certify two subclasses of plaintiffs, and denied plaintiffs' motion to cCltify a

third class. Calvin v. SherifI' of Will County. 2004 WL 1125922 (N.D.Ill. May 17,2004). Plaintiffs have moved for summary judgment on liability regarding both subclasses

pursuant to Fed. R. Civ. P 56, arguing that defendant's strip search policy violates the Fourth

Amendment. Defendant has filed a motion to strikc portions of plaintiffs' Local Rule 56.1 statement, arguing that they contain legal conclusions and immaterial facts_ For the reasons

stated below, the court grants plaintiffs' motion for summaty judgment and denies defendant's

motion to strike as moo\.

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 2 of 26
The instant action concerns the strip Rearch policies ofthe Will County Adult Detention
Facility ("WCADF"). This court previously certified two subclasses in the inMant aclion_
Subclass f', the "Post-Arrest Strip Search" subclass, is defined as:
Any person who, from May 8, 2001, to the date of entry ofjudgment has been, is, or will
he:
Arrested on a warrant issued for failure to appear in a misdemeanor or traffic case and, following arrival at the Will County Adult Detention Facility, is or was strip searched without any individualized finding of reasonable suspicion or probable cause that he or she was concealing contraband or weapons. Calvin,
2004 WL 1125922, at * 4_
Subclass II, the "Post-Release Strip Search" subclass, is defined as:
Any person who, from May 8, 2001, to the date of entry ofjudgment has heen, is, or will
be:
In the custody of the Sheriff of Will County on a traffic or misdcmeanor charge (or On a warrant issued for failure to appear on a traffic or n1isdemeanor charge), taken to court from the Will County Adult Detention Facility, ordered released by the court, or
'Unless otherwise noted, thc following facts, taken from the parties' L.R. 56.1 statements and attached exhihits, arc not in dispute. The court notes that both parties expend unnecessary energy attacking each other's L.R. 56.1 statements. The court agrees that several oCplaintiffs' statements of fact contain legal conclusions. For example, paragraph 13 concludes that a "bench warrant" is equivalcnt to a "failure to appear warrant" described in 725 ILCS 110/3. The court also agrees, however, that several or derendant's responses to plainti ffs' statements of fact state are improper. For example, many of defendant's responses state, "Admitted in part and denied in part," but do not deny the statement. Instead, defendant attempts to insert additional, nonresponsive facts or legal argument in its response. The court need not resolve the issue, however, because, as discussed bclow, there is no dispute ahout any material issue offac!.
'The COUIt notes that the subclasses have been renumbered to reneet that the court denied certification of subclass I.
2

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 3 of 26
otherwise became entitled to immediate release, was returned to the Will County Adult Detention Facility to be processed out oflhe
custody of the Sheri rr of Will County, and was strip searched
without any individualized finding ofreasonab\c suspicion that he or she was concealing contraband or weapons. Id. at *6.
Policy No. 5080 of the WCADF Policy and Procedures ("Policy 5080") contains search policies for the WCADF, including policies for visual body cavity searches and strip searches.
Policy 5080 states that a visual hody cavity search is "the visual inspection ofthe anal or vaginal area," and must he "conducted by trained staffin private." Policy 5080 limits visual cavity
searches to instances when there is "a reasonahle hc1iefthat the inmate is carrying contraband or other prohibited materia\." Under Policy 5080, a strip search "requires the removal or arrangement of any clothing so that the entire hody or party of the body may be viewed." Strip
searches may not be performed on persons arrested lor traffic, ordinance/regulatory or
misdemeanor offenses, except in cases involving weapons or a controlled substance arrest. A strip search may be perfo[lJ1ed "ifthere is reasonable belieftbatthe individual is concealing a
weapon or concealed substance." Policy 5080 also provides two instances when a strip search may be conducted absent reasonable suspicion: (1) when an arrestee i~ "remanded to the custody
of the Sheriff on any warrant"; and (2) after "transports outside [the facility].'" Plaintiffs in the instant action challenge these two exceptions.
'Paragraph J of Policy 5080 states, "Strip searches may be performed on all inmates, [sic] remanded to the custody of the Sheriff on any warrant or mittimus for failure to post bond, or any subject arrested without warrant that will be housed in the WCADF. Tnmates already in custody, [sic] are subject to strip search during discipline moves and routine shakedowns or whenever there is reasonable belieflhat an inmate has come in contact with contrahand when unsupervised. (i.e. contact visits, transports outside or upon returning from any furlough or temporary release.[)]"
3

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 4 of 26
Sergeant Brain Fink ("Fink"), director of training and accreditation for the WCADF, wrote the original draft of Policy 5080 in 1989. Fink testified that during a strip search an inmate is first required to remove all of his clothing and shake it out or hand it to the guards to search the pockets. The inmate is instmcted to show his hands, lift his arms, run his hands behind his ears, and lean forward and shake his hair. The inmate in then asked to show his hands again, tum around and show the bottom of his feet, and hend over and spread the cheeks of his buttocks with his hands. Next, the inmate is told to stand up, face the officer, and lift his genitals. Finally, the inmate shows his hands again and is allowed to redress.4 All stip searches at the WCADF arc conducted in private areas and by an officer of the same gender as the person being searched.
Suhclass 1 challenges post-arrest strip searches. All persons alTested pursuant to a warrant, including a failure to appear ("FTA") warrant, are stripped searched if they are lL11willing or unahle to post bail. After being strip searched, these individuals arc housed in the "E"pod ("Epod") at the WCADF, which is a direct observation section of the facility consisting of 120 cells. Individuals who arc not strip searched whcn they arrive at the WCADF, including those arrested on misdemeanor or traffic offenses not based on warrants, are held in the booking area. Defendant asserts that the need to hold arrestees in hooking area has resulted in an overcrowding
4The court notes that deCendant denies plainti rcs' L.R. 56.1 statement that the strip scarch conducted at the WCADF is defined as a "visual cavity search" because Policy 5080 defines them separately_ Fink, however, who was produced by defendants pursuant to Fed_ R. Civ. P. 30(b)(6) to answer questions about the policies regarding strip searches applied at the WCADF , testified at his deposition that a strip search as conducted at the WCADF includes "what is referred to in Policy 5080 as a visual cavity search," and that there is no difference between the two searches. Defendant's effort to create a disputed issue of fact on this question is unpersuasl ve.
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problem in the hooking area, an area that was not intended to house inmates, and that even inmates in the E-pod are usually placed in a cell with another inmate due to overcrowding.
Subclass II challenges post-release strip searches performed on detainees who are ordered released by a judge and then returned to the WCADF to be processed and to retrieve their helongings. Inmates who arc taken out ofthe WCADF to court are not supervised hy Will County personnel the entire time that they are at the courthouse. While at the courthouse they (Ire placed in a housing unit cell with other inmates and have contact with people other than Will County Sheri ITs. In particular, inmates may have contact with their relatives and their lawyers.
Fink lesti fled that all persons returned from court to the WCADF arc strip searched, even those who have heen ordered released by a judge. According to Fink, persons ordered released must be searched because they are "going back in the inmate population and having contact with iImmtes" while they arc being processed before being released and in order to collect their personal possessions. Processing includes checking whether the individual has any outstanding cases, and whether there are any warrants or "holds" Irom other jurisdictions. Fink also testified that there is a reasonable belief that every inmate who returns from court is canying contraband or other prohihited material. Defendant changed its post-release procedures since the filing of the instant action. David Van Dyke ("Van Dyke"), deputy chiefsherifffor the County of Will, submitted an affidavit attesting that subsequent to September 15,2004, persons retuming from court after heing ordered released are not strip searched as a matter of course. Instead, "they are given the option of remaining in a holding area and having facility personnel retrieve their personal belongings from their cell, or they are allowed to return to tbeir cell to obtain their belongings themselves, but after consent, they are strip searched before entering the cell area"
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SUMMARY .JUDGMENT STANDARD A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue ormateriallact and the movant is entitled to judgment as a mattcr oflaw. See Fed. R. Civ. P. 56(c); Celotex Com. v. Catrell, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7'h CiL 1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set fOrtl1 specific facts showing there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); Becker v. Tenenbaum-Hill Associates. Inc., 914 F.2d 107, 110 (7,h Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. See Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7,h Cir. 1992). A genuine issue or material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobhy, Inc, 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7'" Cir. 1993). However, the nomnoving party "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 Corp., 475 U.S. 574, 586 (1986). "The mere existence ofa scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.
DISCUSSION In the instant case, despite each party's atlempt to create them by inserting legal conclusions and argument into their L.R. 56.1 statements, there are no material lacts in dispute.
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Indeed, there are very few facts at issue. Plaintiffs' motion for summary judgment on (he issue of liability is hascd almost entirely on two pieces of evidence: (1) Policy 5080; and (2) Fink's deposition testimony regarding the policies and practices concerning strip searches at (he WCADF. It is clearly established that Policy 5080 required the searching of members of
subclasses r and II, and that these policies wcrc cffectuated by defendant's personnel. Defcndant
concedes that it had no reasonable suspicion that allY of the class members had contrab,md or weapons. The question then is whether the strip search policies violated (he class memhers' Fourth Amendment rights. 1. Subclass 1- Post-arrest search
In their subclass I claim, plaintiffs challenge defendant's policy of strip searching every person arrested on an FTA warrant for a misdemeanor or (rantc violation who does not post bond. Plaintiffs argue that this policy violates the Fourth Amendment because it does not require an individual determination that there is a reasonable suspicion that the particular arrestee is concealing weapons or other contraband, ,md that defendant's proffered justifications are not sufficient to justify a strip search that includes a visual body cavity inspection.
Plainti ffs argue that an FTA warrant docs not carry with it the same probable cause finding as an arrest warrant issued f(Jr an underlying charge, and (ha( it is not reasonable to assume that a person arrested on an FTA warrant in a traffic or misdemeanor case "will have sought to hide contraband in a spot where it can only be discovered by a strip search." According to plaintiffs, this presumption is particularly inappropriate for individuals issucd FTA warrants in misdemeanor or (ramc cases. Defendant responds that an FTA warrant is equivalent (0 any warrant and thus justifies the strip searches of all warrant arrcstccs. Defendant also argues (ha(
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every warrant requires it to detain arrestees who cannot post bond, and that arrestees are detained in the E~pod with the general jail population. The strip searches, assert defendant, are thus justified by the jail's legitimate security concerns. For the reasons discusscd below, thc court grants plaintiffs' motion for summary judgment as to subclass I.
The Supreme Court's opinion in Bell v. Wolfish, 441 U.S. 520 (1979), is the seminal detainee strip search case. Balancing "the signilicant and legitimate security interests of the institution against the privacy interests of the inmates," the Bell court upheld a prison policy requiring inmates to submit to routine strip searches with visual cavity inspections after evelY contact with a person from outside the institution. Td. at 560. Despite holding that particular policy constitlltional, Bell did not validate a blanket policy of strip searching pretrial detainees. Wilson v. Jones, 251 F.3d 1340, 1342 (ll Ih Cif. 2001) (citing Masters v. Crouch, 872 F.2d 1248, 1253 (6'h Cir. 1989)); see also Tikalskv v. City of Chicago, 687 F.2d 175, 182 (7'h Cir. 1982) (Bell "did not validate strip searches per se"). Rather, Bell held that pretrial detainees retain constitutional rights, including the Fourth Amendment's protection against unreasonable searches and scizures, which are subject to limitations based on the fact of confinement and the institution's need to maintain security and order. Id. at 545-46. Tn balancing the constitutional rights of the inmate with the interests ofthc pcnal institution, a court must consider four factors: (1) the scope of the particular intrusion; (2) the manner in which it is conducted; (3) the place in which it is conducted; and (4) the justification for initiating it. Td. at 559.
In the instant case, ncither the place nor manner of the searches is problematic. Thankfully, the undisputed policy and practice ofthe strip searches at issue here do not illvolve the parade ofterribles and abuses presented by other strip search cascs. Sce. c.I;., Doc v. Calumet
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City, 754 F. StiPp. 1211, 1214-15 (N.D.JJl. 1990) (female arrestees subjected to "offensive touching," digital cavity searches, visual observation by male officers while being strip searched, and fondling by male officers while in plain sight ofmalc officers and others). Plaintiffs do not dispute that the WCADF searches were conducted in private by officers of the same gender, and with "tact." In addition, the WCADF personnel did not touch the detainees and there have heen no accusations of abuse.
Plaintiffs argue that the scope of searches - which require inmates to strip naked and permit a visual cavity inspection - was not justified. Courts have repeatedly held that strip searches that include visual inspection orthe anal and genital areas are inherently invasive. The Supreme Court stated in Bell that a strip search and visual inspection of inmates' body cavities
"instinctively gives us the most pause." 441 U.S. at 558-59. In Marv Beth G. v. City of Chicago,
723 F.2d 1263,1272 (7,h Cir. 1983), the Seventh Circuit described strip searches as "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and suhmission." See also, Swain v. Spilmey, 117 F.3d 1,7 (l" Cir. 1997) (visual cavity searches "impinge seriously" upon Fourth Amendment values); Chapman v. Nichols, 989 F.2d 393, 395 (lO,h eir. 1993) ("There can be no doubt that a strip search is an invasion of privacy of the first magnitude."); Thompson v. County of Cook, 2005 WL 1950363, at *7 (N.D.l11. Aug. 8,2005) ("It is beyond argument that the search involved [a strip search including visual cavity inspection] is extremely intrusive.").
Defendant must establish a sufficient "justification for initiating" such an invasive search. 13ell, 441 U.S. at 559. Defendant argues that the blanket strip search policy for warrant arrcstccs is necessary to ensure safety at the WCADF because warrant arrestces who do not post bond
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must be detained in the E-pod with the general jail population. Courts. beginning with Bell, have consistently held tllat institutional security is a legitimate law enforcement objective, and may provide a compelling reason for a strip search absent reasonable suspicion of individualized wrongdoing. See, e.g., Overton v. Bazzelta, 539 U.S. 126, 133 (2003) (maintaining institutional security is "perhaps the most legitimate of penological goals"). Courts have given prisons latitude to premise searches on the type of crime for which an imnate is arrested. See, e.g., Dufrin v. Spreen, 712 F.2d 1084, 1087 (6'0 Cir. 1983). When the inmate has been charged with only a misdemeanor or traffic violation, crimes not generally associated with weapons or contraband, however, eourts have required that officers have a reasonable suspicion that the individual imnate is concealing contrahand.
Tn Tinetti v. Wittke, 620 F.2d 160 (7'h Cir. 1980), the Seventh Circuit affirmed the district court's holding, 479 F. Supp. 486 (E.D. Wis. 1979), that a blanket policy of strip searching people charged with a non-misdemeanor traffic violation "without probable cause to believe that she was concealing weapons or contraband on her hody was a violation of the plaintiffs rights under the Fourth, Fifth, and Fourteenth Amendments ofthe U.S. Constitution." 479 F. Supp. at 491. The plaintiffs in Tinetti challenged a policy of the Racine County jail that required the strip search ofpersons arrested for non-misdemeanor traffic offenses "due to an unwillingness or inahility to post bond before their initial appearance in couri." 620 F.2d at 160. The Seventh Circuit adopted the district court's holding that, "[t]he intrusion on one's personal dignity occasioned by such searches requires that some justifiable basis exists." 479 F. Supp. at 491. Although Tinetti involved a search of people arrested for non-misdemeanor tranic violations only, its reasoning clearly applies to all blanket search policies, such as the one at issue here, that
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make no distinctions among the Iypes of' crimes charged and that fail 10 require any level ofhelieC that a particular arrestee is in possession of a weapon or contraband. Doc v. Calumet, 754 F. Supp. atI219n.IS.
In Mary Beth G, which applied the reasoning of Tinetti, the Seventh Circuit held that Chicago's policy of sUhjecting women, but not men, who had been arrested and detained on misdemeanor charges, to a strip search regardless of the charges against them or whether detention officers had any reasonable suspicion (hat a particular woman was concealing weapons or contraband, violated the Fourth Amendment. 723 F.2d a( 1273. The Marv Beth G. court noted, "The more intrusive the search, the closer the government authorities must come forward to demonstrating probable cause for believing (hat the search will uncover the objects for which (he search is being conducled." Id. at 1273 (quoting Terrv v. Ohio, 392 U.S. 1, 18 n. 15 (1968».
Other courts of appeals have also held strip searches of misdemeanor arrestees unconstitutional. Sec. c.g., Shain v. Ellison, 273 F.3d 56, 64-66 (2"d Cir. 2001) (policy of strip searching misdemeanor arrestces unconstitutional); Logan v. Shealy. 660 F.2d 1007, 1013 (4th Cir. 1981) (strip search unconstitu(ional hecanse the officer had "no cause" to believe IhalDUT detainee had a weapon or contraband); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (per curium) ("arrestees charged with minor offenses may he suhjectcd to a strip search only ifjail onicials have a reasonable suspicion that thc individual arrestee is carrying or concealing contraband"); Hill v. Bogans, 735 F.2d 391,394 (1 O'h Cir. 1984) (strip search of a traffic offender with "no circumstances here indicating [arrestee] might possess eilher a weapon or drugs" was unconstitutional); Wilson v. Jones, 251 F.3d 1340, 1342 (11 th Cir. 2001) (strip search policy that did not require reasonable suspicion violated Fourth Amendment).
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A. FfA warrant
Defendant does not respond to any ofthe court of appeals cases cited by plaintiffs except Mary Beth G., which it attempts to distinguish based on the plaintiffs ability to post bond, as discussed below. Instead, defendant argues that its search policy is dislingLlishable because it applies to detainees arrested pursuant to a warrant, which defendant asserts negates the need for individualized reasonable suspicion. In support of this argument, defendant cites 725 TLCS 5/l03-1(c), which provides that persons arrested tor a traffic, regulatory, or misdemeanor offense, except in cases involving weapons or a controlled substance, may not be strip searched. The statute also provides, however, that this restriction "shall not apply when the person is taken into custody or remanded to the sheriff or correctional institution pursuant to court order." 725 ILCS 5/103-1 (j). TlIinois state appellate courts have held that because FTA warrants in misdemeanor or traffic cases are "pursuant to court order," and the statutory restriction against strip searches docs not apply to persons arrested on such warrants. People v. Mitchell, 353 111. App. 3d 838, 840-841 (2nd Dis!. 2004); People v. Johnson, 334 TIl. ApI'. 3d 666, 672-3 (4'h Dist. 2002). lllinois courts have also held that strip searches of people arrested pursuant to FTA misdemeanor warrants do not violate the Fourth Amendment. Mitchell, 353 III. App. 3d at 843; Johnson, 334 Ill. App. 3d at 673.
A federal district court is, of course, not bound by a state court's rulings on matters of fCderallaw, including whether a state statute or county policy violates the Fourth Amendment. Sec. e.g., Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir. 1995) ("A discriminatory state law is not a defEmsc to liability under federal law; it is a source Mliability under f'ederallaw."). The question then, is whether the issuance of an FTA warrant, often referred to as a "bench
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warrant," satisfies the constitutional requirement of reasonable suspicion to conduct a strip search.
Plaintiffs argue that although defendant is authorized to "book" a person who is arrested or surrenders pursuant (0 an FTA warrant, such a warranl is distinguishable from an arrest warrant issued on a new charge. Plaintiffs assert that an FTA warrant is issued upon a llnding that a criminal defendant failed to comply with a condition of pretrial release, such as appearing in court, and thus cannot constitute a finding that there is a reasonable basis for a strip search. An Illinois appellate court has notcd that "a bench warrant does not amount to ajudieial finding of probable eausc to arrest in the (raditional sense, i.e., that a crime had been commiiled and that defendant had committed it." People v. Allibalogun, 312 Ill, App. 3d 515, 518 (2000) (citing United States v. Spencer, 684 f.2d 220, 223 (2"d Cir. 1982»).
The courl agrees with plaintiffs that i( is difficult to reconcile prohibiting automatic slrip searches of people arrested on traffic and misdemeanor charges -- as the lllinois statute, case law, and Policy 5080 all do - with allowing the strip searches ofpeopJe arrested for a failure to appear regarding the identical charges. Again, defendant fails to squarely addrcss plaintiffs' argument that defendant lacked reasonable suspicion to conduct (he strip searchcs. Instead, defendant argues that like all warrants, "the FTA warrants aTe valid court orders that lawfully authorize the Sheriffto arrest and detain someone, those warrants justified the searches in Ihis casc." Defendant fails, however, to provide any persuasive argument or case law in support of its leap of logic that the searches at issue here were constitutional because plaintiff5' detentions were lawful. Defendant cites Doc v. Sheriff of DuPage County, 128 FJd 586, 588 (7th Cir. 1997) and Corbett v. White, 2001 WL 1098054, at *7 (N.D. Ill. Sep. 17. 2001). Both ofthcse cases,
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however, address ajail's authority to detain a warrant arrestee, and do not discuss searches of detainees. Doe v. Sheriff of DuPage County and Corbertt arc thus not responsive to the gravamen of plaintiffs' challenge, which is not directed at the constitulionality of their detention but their trealment while detained.
Accordingly, defendant has failed to create a triable issue of fact that arrest pursuant to an FTA warrant justifies the blanket strip search policy. B. Opportunity to post bond
Detendant also argues thallhe searches are authorized because they arc not conducted untillhe arrestees arc given the opportunity to post bond. According to defendant, this is in
contrast (olhe searches at issue in Marv Beth G., Tinetti, and Gary v. Sheahan, 1998 WL 547116
(N.D.TlI. Aug. ZO, 1998). Defendant's argument (hat these cases arc distinguishable because the "key" in the courts' analysis "is that the detention is fOf a brief period awaiting hound" misconstrues the facts and the holdings in thosc cases. For example, the plaintiff in Tinetti was given an opportunity to post bond althe lime of her arrest for speeding. 479 F. Supp. at 488. She was unahle to pay bond, and was taken into custody and strip searched. Td. She was released two hours later when her uncle posted bail. Id. Defendant asserts, without support in lhe Tinetti opinion, that the plaintiff in that case could have avoided the strip search if she had been penniHed to call her uncle earlier. The Seventh Circuit affinned the district court's opinion that the blanket policy of strip searching detainees who did not post bond was unconstitutional, and did not limit its holding to instances in which the detainee could or would have posted bond if given another opportunity or any opportunity at all. Tinetti, 620 F.Zd at 160.
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Defendant's attempt to distinguish Mary Beth G. and Gary. on the grounds that the plaintiffs in those cases were awaiting bond is similarly unconvincing hecause neither holding is based on how long the arrestees were held or whether they wcre waiting for their bail to be paid. The plaintiffs in Gary were strip searched after being released, and thus, as the Gary court made clear, the case did not concern people awaiting bail at al1. 5 1998 WL 547116, at *12. The Seventh Circuit describes the plaintiffs in Mary Beth G. as held "in lockups" while "awaiting arrival of bail money." 723 F.2d at 1266. Defendant does not explain what would distinguish the lockups in Maw Beth G. from the E-pod in which plaintiffs here were placed. Moreover, there is nothing in the record ofthc instant case to suggest that plaintiff.. were not expecting to he hailed out imminently.
Defendan( fails to cite any case in which a court upheld a strip search pOlicy against a
constitutional challenge based on an opportunity to post hondo To the contrary, other courts have recognized that an arrestee's failure to post bond, which is often (he result of limited Ilnancial resources, cannot save a constitutionally infirm search. For example, the Shain court held that neither (he inability nor the refusal (0 post hail "creates a reasonable suspicion that the alleged offender has secreted contraband or a weapon." 273 F.3d a( 65. Defendant's argument that the opportunity to post bond negates a Fourth Amendment challenge to the strip searches is not supported hy the case law it cites, and is not persuasive.
'The court notes that the language from Gary quoted by defendant is a quotation from Simenc V. Sheriff of DuPage County, 1985 WL4896 (N.D.IlI. Dec. 9, 1985), in which the plaintiffs did challenge their lack of opportunity to post bond.
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C. Institutional security The most legally suhstantial justification offered by defendant in support of its strip
search policy is institutional security, although dcfendant devotes scant attention to sec(Lrity in its brief opposing summary judgment. Maintaining institutional security as well as the safety ofjail officers and inmates has been recognized as a significant interest and valid justification for stlip searches. Stanley v. Hcnson, 337 F.3d 961,966 (7'h Cir. 2003). The Supreme Court has obscrved that a "detention facility is a unique plaee fraught with serious security dangers." 8ell, 441 U.S. at 559. The Seventh Circuit agreed in Mary Beth G., concluding that "the need to assure jail security is a legitimate and suhstantial concern." 723 F.2d at 1273. An institutional practice claimed to infringe a constitutional guarantee must be evaluated in light of the institution's essential intercst in seculity. rd. at 546. The Supreme Court has instructed courts to make this evaluation de1erentially, giving due regard to the proiessional expertise of correctional officials. rd. at 548.
Although the determinations ofcorrectional officials regarding security procedures are entitled to deference, jail officials' decisions arc not immunized from scrutiny. Stanley, F.3d at 966. As a court in this district noted recently, "Officials do not have carle hlanche to institute allY policy they please under the justification of institutional security." Thompson, 2005 WL 1950363, at *7 (denying defendant's summary judgment motion arguing that visual cavity search of all dctainccs at jail did not violate FOUrtll Amendmcnt). Several courts of appeals have made similar observations. Sec. e.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1" Cir. 2001) ("An indiscriminate strip search policy routinely applied ... [cannot] be justified simply on the basis of administrative ease in attending to security considerations.") (ellipsis in original; quoting Logan,
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660 F.2d at 1013); Hill, 735 F.2d at 394-95 (Under Bell, "jail's desire to maintain security, to avoid charges of discriminatory treatment, and to promote administrati ve convenience simply does not justify routine strip searches in a public area ofpcrsons detained for minor traffic offenses.").
In the instant case, defcndant argues that the WCADF strip searches are required "hecausc the inmate will he placcd in a portion of the facility with hundreds of other inmates in close proximity, and it is necessary to protcct the safety nol only of guards and other irunates, but also the safety of the person heing searched." That is, because the warrant arrestees are "intenningled" with the general jail population at the WCADF, the arrestees must submit to a strip search.
Courts have frequently noted that the intermingling of illlnates is a serious concern that weighs in favor of the reasonablencss, and constitutionality, of the search. See Dufrin, 712 F.2d at 1087 (inmate would come into contact with general population); Logan, 660 F.2d at 1013 (noting lack of intermingling). Defendant cites to Roscom v. City of Chicago, 570 F. Supp. 259 (N.D. 111. 1983), in which the court upheld the strip search of an arrestee who was placed in jail after being unable to post bond. Several courts, including many courts of appeals, however, have since held that intemlingling alone is insufficient to justify a search without reasonable suspicion. Chapman v. Nichols, 989 F.2d 393, 396 (10'" Cir. 1993); Masters, 872 F.2d at 1254; sec also Wilson v. Jones', 251 F.3d 1340, 1341-42 (ll 'h Cir. 2001) (blanket policy of strip searching all
'The courl notes that the Eleventh Circuit, sitting in bane to rehear an appeal of a case striking down a strip search policy similar to that in Wilson, recently questioned its holding in Wilson that arrestees detained in the general jail population can constitutionally be subject to a strip search only if the search is supported hy reasonable suspicion. Evans v. City or Zebulon,
(continued ...) 17

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arrestees placed in general population violated the Fourth Amendment). The Ninth Circuit has stated that intermingling is a dubious reason for a strip search because it is inherently "limited and avoidable," Giles, 746 F,2d at 619,
Courts have repeatedly invalidated strip searches of arrestees that were placed in the general jail population based on the reasoning that less invasive searches or other detention practices cOlLid obviate the need for a strip search. For example, in Roberts v, State ofR.I., the First Circuit struck down a policy requiring the strip search oj" all arrcstccs held in the general population at an intake facility considered to be maximum security. 239 F.3d 107 (1" CiT, 2001), The Roberts COUTt held that the intermingling of arrestces with the general prison population, which was a product of the structure of Rhode Tsland prison system, "is not, in itscJj~ dispositive ofthe reasonableness of the search," The First Circuit found that to "place so mlLch weight on one (potentially alterable) characteristic of the state prison system would gut the balancing approach endorsed by the Supreme Court in Bell," Jd. at 113,
Tn the instant case, defendant fails to cite any authority in support of its presumption that, contrary to the case law cited above, placing a detainee in the general jail population per sc jnsti lies a strip search. Instead, defendant states conclusorily that there is a "reasonable belief' that the person is carrying contraband whenever the person has heen arrested on a warrant, but
"( .. ,continued) 407 F.3d 1272 (l1 1h Cir. 2005) (en bane). The Evans panel stated, "Most of tiS are uncertain that jailers are required to have reasonable suspicion of weapons or contraband before strip searching
for security and safety purposes - arrestees bound for the general jail population." rd, at 1278, The panel went on (0 observe the Supreme Court had never imposed such a "reasonable suspicion" prerequisite on inmate strip searches, but stopped short of resolving the accuracy of the panel's earlier statement. For now, the law in the Eleventh Circuit remains as stated in Wilson.
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does not explain the basis of this presumption. Courts invalidating searches of misdemeanor arrestees have noted that arrestees are unlikely to have contraband hidden in their body orifices at the time of arrest. See, e.g.. Shain v. Ellison, 273 F.3d 56, 64 (2".1 Cir. 2001) ("arrestcos do not ordinarily have notice that they are about to be arrested and thus an opportunity to hide
something"); Thompson, 2005 WL 1950363 at * 8 ("[I]t is a relatively sali:: assumption at least
in absence of evidence to the contrary - that only a negligible portion of anestees have concealed contraband in body cavities prior to their encounter with law enforcement.") (emphasis in original).
The Shain court distinguished its holding regarding misdemeanor arrestees from Bell's holding that it was reasonable to assume that prisoners might have hidden contraband after contact visits, noting that "[i]t is far less obvious that misdemeanor anestees frequently or evcn occasionally hide contraband in their bodily orifices." Shain, 273 F.3d at 64. Because of the nature of unanticipated arrests, blanket strip searcb policies are also unlikely to have the deterrent effect relied on in part by the Supreme Court in Bell. As the Giles court noted, unlike visits to the detention center in Bell, which are planned ami pennit visitors an opportunity to organize their smuggling activities, "arrests and confinement...are unplanned events, so the policy could not possibly deter arrestees from carrying contraband" Gi\Cs, 746 F.2d at 617.
The logic of Shain and Gi\Cs concerning unsuspecting arrcstcos is particularly applicable to subclass I which, pursuant to the class definition, does not include arrestees whom defendant had reasonable suspicion or probable cause to believe were concealing contraband or weapons. Defendant might have reasonable suspicion to search a person arrested on an FTA warranl in a case involving contraband or weapons, or whose record otherwise indicated a reason to helicve
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he might be secreting items in his body cavities. Such arrestees, however, are not included in subclass I and plaintiffs do not challenge such searches. Nothing in this opinion limits the WCADF's ability to conduct strip searches based on reasonable individualized suspicion, but such individualized justifications are the antithesis of the hlanket policy under attack.
The court docs not diminish or douht defendant's argument that all detainees must he searched in order to ensure the safety of everyone at the WCADF. Defendant does not argue, however, that people arrested on FTA warrants in misdemeanor or traffic cases arc likely to have secreted contrahand that can be uncovered only by a strip search, as opposed to a Jess invasive search such as a pat down. Defendant fa.ils to present any evidence that contraband is often, or ever, recovered from FTA warrant arrestees, and does not point to any particular security risk that would he posed in the absence of strip searches.
Defendant also fails to explain why all arrestees who arc detained at the WCADF must be held with the general jail population. Tfthere were a compelling reason to place FTA warrant arrestees who do not post bond in the general jail population, the resulting intenningling of detainees might provide a constitutionally sound reason for the strip search. Instead of oflering such a reason, defendant repeatedly points to overcrowding in the booking area and asserts that strip searches are required prior to intenningling with the general population jail in E-pod. As the cases discussed above make clear, administrative concerns such as "space constraints" arc not sufficient to justify blanket strip search policies. See, e.g., Roherts, 239 F.3d at 113; Hill, 735 F.2d at 394-95. Defendant fails to explain why a third option that would protect arrestees' Fourth Amendment rights while furthering defendant's legitimate Jaw enforcement objectives, such as separate holding cells for certain arrestees, is not possible.
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Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 21 of 26
Ahsent the proffer of any evidence to support its generalized claim of a security risk posed by members of subclass 1 or its claim that all detainees must he held with the general jail population, defendant has failed to create any triable issue of material fact that automatic post~ arrest strip searches arc justified for all warrant arrestees. See Thompson, 2005 WL 1950363, at *7 (defendant sheriff not entitled to summary judgment on reasonableness of strip search where it (ails to present evidence ofiten1s found on newly arriving detainees); see also, Roberts, 239 F.3d at 112 (indicating that searching all inmates is more reasonable in cases in which the rccord refleclR a history of problems with prisoners smuggling items into the institution).
"Bell has not been read as holding that the security interests of a detention facility will always outweigh the privacy interests of the detainees." Dobrowolskyj v. Jefferson County. 823 F.2d 955, 959 (6'0 Cir. 1987). As the First Circuit has noted, "the Fourth Amendment balance cannot be shifted so quickly" Roberts, 239 F.3d at 113. In the instant case, defendant suggests the placement of arrestecs among the general jail population as the sole basis for security concerns. Defendant docs not explain what other individuals are in the general population at the WCADF or what security risks they might pose, and defendant does not argue that individuals arrested on FTA warrants could be not held elsewhere. As the Roberts court noted, a prison system cannot rely on the realities of its own detention structure alone to justify an invasion of privacy as signi ficant as a strip search. ld.
Because the court finds that defendant's blanket policy of searching all arrestees arrested Oll FTA warrants for misdemeanor or traffic violations violates the Fourth Amendment, the court grants plaintiffs' motion for summary judgment of liability as to suhclass L
21

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 22 of 26
n. Subclass II - Post-release search In their subclass n claim, plaintiffs challenge defendant's policy of strip searching
individuals returned to the WCADF from court after being ordered released. Plaintiffs argue that the automatic post-release searches are unconstitutional because they are not justified under Bell. Defendant argues that after released arrestees return from court, processing the paperwork for final release "could take three to four to six hours," and that due to overcrowding iss\les they must be returned to the general jail population while they wait. According to defendant, once a return to a cell is necessary, a strip scarch is required because the returnees were not under the constant supervision of defendant while at court and they had contact with relatives and attorneys. For the reasons discussed below, the court grants plaintiffs' motion for summary
judgment as to subclass n.
Begilllling with Bell, courts "have given prisons far more leeway in conducting searches of inmates with outside contact then in searching everyone, simply because s\lch visits often allow smuggling of contraband." Roberts, 239 F.3d at 111; see also, Shain, 273 F.3d at 63 ("Unlike persons already injail who receive contact visits, arrestees do not ordinarily have notice that they are about to be arrested and thus an opportunity to hide something."); Masters, 872 F,2d at 1253 (6th Cir. 1989) (citing the "obvious risk" that visits may be used to introduce contraband); Thompson, 2005 WL 1950363, at *8 (distinguishing intake detainees from individuals searched following contact with outsiders).
Tn Bell, as discussed above, the Supreme Court upheld the policy of searching pretrial inmates after every contact visit. 441 U.S. at 560. The Supreme Court noted, however, that some ofthe pretrial detainees in that case were facing serious charges and that the defendant
22

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 23 of 26
proved that in at least one instance during the institution's short history contraband was found during a body cavity search. Id. at 558. In the instant case, by contrast, plaintiffs were charged with misdemeanor or traffic violations only. The plaintiffs had been ordered released prior to being brought back to the WCADF and strip searched. Plaintiffs, as individuals for whom there is no longer any basis for detention, clearly have a privacy interest in their body parts which is as great, if not greater, than that of pretrial detainees. Sec Tinetti, Marv Beth G., supra. Moreover, as with subclass 1, defendant presents no evidence that a post-release strip search has ever discovered any contraband.
Plaintiffs argue that the instant case is analogous to Gary, which held that the defendant's "blanket policy of strip searching all court returns - including those who may proceed for rele<lse - was constitutionally suspect." 1998 WL 547116, at *12-13. Tn Gary, as in the instant case, there was no longer any basis for the detention of the plaintiffs at the time they were searched, and the only reason they returned to the jail- and strip searched - was to collect their properly and to await processing. Td. at *14. The Gary court noted, "A simple change in the processing of the individuals in the plaintiff class would eliminate the problem." Id. at *14. Here, defendant admits that subsequent to September 15, 2004, returnees were given the option ofremaining in the holding area and having facility personnel retrieve their personal belongings from the cell, or being allowed to return to their cell after consenting to a strip search.7 The inmates who are not returned to their cells remain in the booking area while their release paperwork is completed.
Defendant has therefore followed the Gl!rv court's suggestion by instituting a simple change in
7Although defendant does not contest the admissibility of the change, the court notes that subsequent remedial measures are admissible to demonstrate feasibility. Fed. R. Evid. 407; Miles v.Badge #148 Baker, 1992 WL 14301, at *3 n. 7 (N.D.IlI. Jan. 17,1992).
23

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 24 of 26 •
procedure, and has failed to provide any evidence that the change has compromised security at the WCADF or created urm1aJ1ageabie administrative burdens.
Defendant argues that Qm:y is factually distinguishable because the strip searches in that case were performed only on women, and were conducted in puhlic areas. Id. at *2. It is true that there were troubling aspects concerning the place and ma11l1er of the strip searches in Qm:y that are not present in the instant casco Neither factor, however, was decisive in the Gary holding. Defendant abo argues that Qm:y can be distinguished because the defend,mt there attempted to justify the searches almost exclusively by claiming administrative inconvenience because it had to process six to eight inmates on a daily hasis. Tn addition, the defendant in Gary conceded that it could have processed (he court retumees quickly, and that it was possible to discharge the women from the receiving room if/hey agreed to waive collecting their personal
belongings from the cells and allowing thc helongings to be brought to them. Id. at * 14. The
Gary court recognized that Unsuperyised contact by inmates presents a security concem upon retum to the facility, but found this justification "substantially diminished" in that case because the defendant searched female inmates only, even though male irunates had the same degree of outside contact. Id.
Although the court agrees with defendant that Qm:y is factually distinguishable in some aspects, and that the holding in Qm:y "docs not automatically invalidate the searches here," much of the Gary holding is analogous (0 the instant case and weighs in plaintiffs' favor. In the instant case, although defendant does not concede quite as much as the dclcndant in Gary, it also ia.ils to offer any evidence of a genuine security concern posed by post-rclease detainees. Defendant asserts (hat i( receives twenty to thirty returnees at a time, that there was already an overcrowding
24

_ _ __ ... __...

.._. . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ,

Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 25 of 26

problem in the booking area which increased the time for processing the releases ofthese individuals, and that this makes it Jess practicable for all of them to remain in the booking area. Essentially, defendant argues that it has no choice but to place the released returnees back in the general jail population. This claim, however, is belied by its own change in procedure in September 2004, which gives post-release detainees the option of remaining in the booking area.
As with its claims of security dangers pose by FTA warrant arrestees, defendant does not asscrt that the September 2004 change regarding released returnees ha~ caused any administrative, security, or other problems, and fails 10 present any evidence to that clTect. See, ~,Arruda v. Fair, 710 F.2d 886, 887 (I" Cir. 1983) (a policy of scarching all inmales is more reasonable when the record indicates a "lengthy history of contraband problems."). Dclcndant again attempts to use its own internal administrative procedures and practices to justi fy an alleged constitutional violation. This argument in equally unpersuasive regarding subclass II for the reasons discussed above regarding subclass T.
As discussed above, to survive constitutional scrutiny a blanket policy of performing strip searches, which are inherently invasive, must be balanced by a justification such as a genuine need to preserve institutional security. In the instant case, defendant has failed to create a triable issue of facllhallhe slrip searches of post-release detainees are required to ensure the sarety 01' tile WCADF or that other procedures that impinged less on individuals' Fourth Amendment rights could nol be instituted. Because tile court finds that defendant's blanket policy of searching all post-release detainees who had becn arrcstcd on misdemeanor or traffic charges or on FTA warrants in misdemeanor or lraffic charges violates the Fourth Amendment, the court grants plaintiffs' motion for summary judgment as to liability for subclass II.
25

- .._- - - - " " - - " - - - " - - ' - ' - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ,
Case 1:03-cv-03086 Document 62 Filed 12/16/2005 Page 26 of 26 III. Motion to strike
Because the court did not consider any of the four paragraphs of plaintitT:~' L,R. 56.1 statement that were challenged hy defendant in granting summary judgement for plaintiffs, the court denies defendant's motion to strike as moot.
CONCLUSION For the reasons stated above, the court grants plaintiffs' motion for summary judgment as to liability as to subclass I and subclass II. The court denies as moot defendant Sheriffs motion to strike portions of plaintitfs' L.R. 56,1 statement. ENTER: December 16, 2005
Robert W. Gettleman Uoited States District Judge
26

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, WILLIAM VIRBLE

)

MOORE AND CHARLES DAVIS,

)

Plaintiffs, )

-vs-

) No. 03 CV 3086

)

SHERIFF OF WILL COUNTY AND

) (Judge Kendall)

WILL COUNTY, ILLINOIS

)

Defendants. )

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action through their respective undersigned counsel to resolve all matters at issue in this action.

RECITALS 1. Nature of litigation. Plaintiffs filed the above captioned action, for
themselves and all others similarly situated, in the United States District Court for
the Northern District of Illinois alleging violations of their Fourth Amendment
rights under the U.S. Constitution pursuant to 42 U.S.C. § 1983, resulting from
strip searches conducted of them at the Will County Adult Detention Facility
(“WCADF”).
2. Class Certification. Pursuant to the Court's order of May 12, 2004,
this case is proceeding as a class action for two subclasses defined as follows:
Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be arrested on a warrant issued for failure to appear in a misdemeanor or traffic case and, following arrival at the Will County Adult Detention Facility, is or was strip searched without any individualized finding of reasonable suspicion

or probable cause that he or she was concealing contraband or weapons. (“Subclass I”) and
Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be in the custody of the Sheriff of Will County on a traffic or misdemeanor charge (or on a warrant issued for failure to appear on a traffic or misdemeanor charge), taken to court from the Will County Adult Detention Facility, ordered released by the court, or otherwise became entitled to immediate release, was returned to the Will County Adult Detention Facility to be processed out of the custody of the Sheriff of Will County, and was strip searched without any individualized finding of reasonable suspicion that he or she was concealing contraband or weapons. (“Subclass II”).
3. Important Rulings. On December 16, 2005, the Court granted
plaintiffs' motion for summary judgment and entered a finding of liability against
defendant Sheriff of Cook County and in favor of Subclass One and Subclass
Two. Thereafter, on April 14, 2006, the Court granted defendants' motion to
certify the order granting summary judgment for an interlocutory appeal pursuant
to 28 U.S.C. §1292(b). The Court of Appeals granted permission to appeal on May
18, 2006.
4. Settlement Conference. In accordance with Seventh Circuit Rule
33, the parties participated in a Settlement Conference with Joel N. Shapiro,
Senior Conference Attorney of the United States Court of Appeals for the Seventh
Circuit. With the invaluable assistance of Mr. Shapiro, the parties have agreed to a
resolution of their disputes in this action. The class members desire to settle their
claims against Defendant, having taken into account through their counsel the
risks, delay and difficulties involved in establishing a right to recovery in excess of
2

that offered by this settlement and the likelihood that the litigation will be further protracted and expensive. Class Counsel has investigated the facts and the applicable law. Based on the foregoing, and upon an analysis of the benefits that this Settlement Agreement affords the class, Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
5. No Admission of Liability. Defendants deny liability to Plaintiffs and the class for the claims alleged, but consider it desirable that the action and the claims alleged therein be settled upon the terms and conditions set forth in this Agreement, in order to avoid further expense and burdensome, protracted litigation, and to put to rest all claims, known or unknown, that have been or might be asserted by Plaintiffs or the class members against Defendant.
In consideration of the foregoing, Plaintiffs, Class Counsel and Defendants stipulate and agree that the claims of the named Plaintiffs and the class against Defendants should be and are hereby compromised and settled, subject to the approval of the court, upon the following terms and conditions.
TERMS 6. Relief to the Class. To resolve all claims at issue in this case, including but not limited to claims for compensatory damages and claims for attorneys' fees and expenses, the parties have agreed that, as part of the consideration for this Agreement, including the releases contained herein, Defendants agree to pay a total amount of $2,150,000 (Two Million One Hundred
3

and Fifty Thousand Dollars) (“Settlement Fund”) in full settlement of all claims by all members of both subclasses. With respect to all claims asserted on behalf of each subclass, plaintiffs have agreed to waive their right to individual damage trials. The defendants have agreed to waive their right to appeal from the district court's finding of liability.
7. Incentive Payments. Each of the named plaintiffs will receive, subject to the approval of the court, an incentive award of $25,000 to be paid from the Settlement Fund. Defendants agree not to oppose Plaintiffs’ petition for such incentive awards. Such awards shall be in lieu of, and not in addition to, any other awards to which the named plaintiffs may be entitled under this settlement.
8. Administration, Attorneys’ Fees and Expenses. The cost of administration of the settlement will be paid from the Settlement Fund, as will attorneys’ fees and expenses. These costs include, but are not limited to, notice to the class, attempting to locate class members who are not reached by first class mail to their last known address, processing of claim forms and 1099 forms, issuance of settlement checks, and mailing (by certified mail, return reply requested) of settlement shares to class members. The settlement will be administered by Analytics, Incorporated, who has provided these services in similar cases and who has previously been engaged by class counsel in this case for the mailing of class notice. The total amount of attorneys' fees and reimbursed expenses will not exceed 40% of the total Settlement Fund, in an amount to be set by the Court. Defendants have agreed not to challenge any such request for fees
4

and reimbursement of expenses that may be made by class counsel. Class counsel intends to seek a total award of fees and reimbursement of expenses in an amount not to exceed forty percent of the total settlement in accord with the standard in the community of contingent fees ranging between one-third and 40% of the total recovery, with the higher percentage applying in risky cases and in those with a likelihood of a small recovery. The parties are in agreement that, subject to the approval of the Court, one-third of the total settlement plus reimbursement for the actual cost of class notice and the actual cost of notice of this proposed settlement shall be paid to class counsel as fees and reimbursable expenses and that any balance remaining in the “Reserve Fund” (as described below) on December 1, 2007 shall be paid to class counsel as additional fees.
9. Payments to Class Members. The parties, while recognizing that each class member has a distinct claim for damages, agree that the expense, uncertainty, and delay of providing each class member with an individual determination of damages outweighs the benefits of distribution on an pro rata basis. After the deduction of attorney’s fees and reimbursable expenses, the costs of administration of this settlement, and the incentive awards to the named Plaintiffs, the remainder of the Settlement Fund (hereinafter the “Net Settlement”) will be distributed to each class member who has not excluded him or herself, and who timely returns a claim form. Each class member who submits a timely claim form will receive a payment from the balance of the Settlement Fund based upon the procedures described below. The amount that each unnamed member of the
5

plaintiff class will receive cannot be computed until there has been a final determination of the number of class members who timely return a claim form; based on experience in other, similar cases, counsel for the parties estimate that each class member will receive an award greater than four hundred dollars ($400) and less than one thousand dollars ($1,000).
10. Notice and Claims Procedures. a. Within seven days after the Court has given its preliminary approval to this proposed settlement, notice of the proposed settlement, information about the date and time of the fairness hearing, and notice of a right to opt-out (for those members that have not previously received such opportunity) will be sent by first class mail to the last ascertainable address of each member of subclass one and subclass two. As used herein, “ascertainable” means the last known address as enhanced by the United States Postal Service change of address database. For any notice which is returned as undeliverable, reasonable efforts will be made to locate the class member using industry standard address correction procedures. The cost of this notice will be paid in the first instance by Plaintiffs and, assuming that this settlement obtains final approval from the Court, will be reimbursed from the total amount of the settlement. b. The notice of the proposed settlement will be accompanied by a 1099 form and a claim form that includes the release described below. Class members will be required to return the executed forms to the class action
6

administrator on or before December 1, 2006. Late claimants may receive payment under the provisions of subparagraph (e) below.
c. Within 7 days of the “Final Approval Date,” as defined below, the total amount of the settlement shall be transferred by defendants to an IOLTA client trust fund account maintained within the State of Illinois by class counsel. As used herein, “Final Approval Date” means the 31st day following entry of the order approving the settlement or, if there is an appeal, when the Court's order approving the settlement reaches a final adjudication.
d. Efforts to locate class members will continue through the date of the fairness hearing.
e. On or before December 18, 2006, payments will be made to each class member who has timely returned the 1099 form and claim form. A claim form shall be deemed timely it is received by the class action administrator on or before December 1, 2006. The amount of these payments will be computed by dividing the “Net Settlement” less a “Reserve Fund” by the number of timely claimants. One fifteenth (1/15) of the “Net Settlement” shall be set aside as the “Reserve Fund” and will be maintained by class counsel in an IOLTA account within the State of Illinois.
f. The “Reserve Fund” will be used to pay claims of class members who submit claim forms and 1099 form to the class action administrator on or before the earlier of December 1, 2007 or the date that the reserve fund is
7

exhausted. Each such claimant will be paid in the same collar amount as the claims paid pursuant to subparagraph (e) above. In the event that the reserve fund is insufficient to pay the full amount to each claimant whose claim form and 1099 form is received on the day on which the fund is exhausted, each such claimant will receive an aliquot share of the balancing remaining in the fund.
g. No part of the “Reserve Fund” will be returned to defendants.
h. Any balance remaining in the “Reserve Fund” on December 1, 2007 shall be paid to class counsel as additional fees.
12. Release. Plaintiffs and the members of the class will grant Defendants the following release:
Plaintiffs and each class member do hereby release and forever discharge the Defendants, and their present or former parents, officers, directors, partners, members, principals, insurers, insureds, representatives, employees, agents, servants, predecessors, successors, subsidiaries, affiliates, shareholders, and assigns ("Released Parties") of and from all causes of action, suits, claims and demands, whatsoever, for anything that occurred from the beginning of time up through and including the date the Court gives final approval to this settlement agreement, in law or in equity, known or unknown at this time, arising out of all of the factual allegations made in the above-captioned action, under any legal theory. This release is conditioned on the final approval of the Settlement Agreement by the Court and Defendant meeting its obligations therein. 13. Enforcement and Reservation of Jurisdiction. The parties agree that the Court will reserve jurisdiction to enforce the provisions of this agreement
8

and that the Court may, for good cause, adjust and reset the dates set out in paragraph 10 above.
Agreed to, this 15th day of September, 2006.

/s/ Kenneth N. Flaxman ______________________________ Kenneth N. Flaxman 200 South Michigan Avenue, Ste 1240 Chicago, IL 60604 (312) 427-3200
Attorney for the Plaintiff Class

/s/ Kevin J. Clancy (with consent) ______________________________ Kevin J. Clancy Lowis & Gellen, LLP 200 W. Adams, Suite 1900 Chicago, Illinois 60606 (312) 364-2500 Attorneys for the Defendants

9

 </s> Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, et al.,

)

)

Plaintiff,

)

)

-vs-

)

)

SHERIFF OF WILL COUNTY, et al., )

)

Defendant.

)

No. 03 CV 3086 (Judge Kendall)

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

The parties to this lawsuit, by counsel, respectfully request that the Court grant preliminary approval to the proposed settlement of this class action.

Grounds for this motion are as follows:

1. Following the grant of permission to appeal by the Seventh Circuit from the order granting summary judgment on liability, the parties, with the invaluable assistance of Joel N. Shapiro, Senior Conference Attorney of the United States Court of Appeals for the Seventh Circuit, have entered into a "class settlement agreement," a copy of which is attached to this motion.

2. The "class settlement agreement" requires defendants to pay two million one hundred and ﬁfty thousand dollars to resolve all claims at issue. The amount that each unnamed member of the plaintiff class will receive cannot be computed until there has been a ﬁnal determination of the number of class members who timely return a claim form; based on experience in other, similar cases, counsel estimate that each unnamed member of the class will receive between four hundred and one thousand dollars.

3. Pursuant to Rule 23(e)(1)(B), the parties requires that the Court direct that notice of this proposed settlement be sent by ﬁrst class mail to the last

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 2 of 12 - 2 -
"ascertainable" address of each member of subclass one and subclass two, where "ascertainable" means the last known address as enhanced by the United States Postal Service change of address database. The parties also request that the Court direct that for any notice which is returned as undeliverable, reasonable efforts shall be made by the class action administrator to locate the class member using industry standard address correction procedures. Finally, the parties request that the Court approve the engagement as class action administrator of Analytics, Incorporated, who has provided these services in similar cases and who has previously been engaged by class counsel in this case for the mailing of class notice.
Respectfully submitted,
/s/ Kenneth N. Flaxman ________________________ KENNETH N. FLAXMAN ARDC No. 830399 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email) attorney for the plaintiff class
/s/ Kevin Clancy (with consent) ______________________ Kevin Clancy Lowis & Gellen, LLP 200 W Adams St., Ste 1900 Chicago, IL 60606 (312) 364-2500
one of the attorneys for defendants

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 3 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, WILLIAM VIRBLE

)

MOORE AND CHARLES DAVIS,

)

Plaintiffs, )

-vs-

) No. 03 CV 3086

)

SHERIFF OF WILL COUNTY AND

) (Judge Kendall)

WILL COUNTY, ILLINOIS

)

Defendants. )

CLASS SETTLEMENT AGREEMENT
This settlement agreement is entered into by all parties to this action through their respective undersigned counsel to resolve all matters at issue in this action.

RECITALS 1. Nature of litigation. Plaintiffs filed the above captioned action, for
themselves and all others similarly situated, in the United States District Court for
the Northern District of Illinois alleging violations of their Fourth Amendment
rights under the U.S. Constitution pursuant to 42 U.S.C. § 1983, resulting from
strip searches conducted of them at the Will County Adult Detention Facility
(“WCADF”).
2. Class Certification. Pursuant to the Court's order of May 12, 2004,
this case is proceeding as a class action for two subclasses defined as follows:
Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be arrested on a warrant issued for failure to appear in a misdemeanor or traffic case and, following arrival at the Will County Adult Detention Facility, is or was strip searched without any individualized finding of reasonable suspicion

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 4 of 12
or probable cause that he or she was concealing contraband or weapons. (“Subclass I”) and
Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be in the custody of the Sheriff of Will County on a traffic or misdemeanor charge (or on a warrant issued for failure to appear on a traffic or misdemeanor charge), taken to court from the Will County Adult Detention Facility, ordered released by the court, or otherwise became entitled to immediate release, was returned to the Will County Adult Detention Facility to be processed out of the custody of the Sheriff of Will County, and was strip searched without any individualized finding of reasonable suspicion that he or she was concealing contraband or weapons. (“Subclass II”).
3. Important Rulings. On December 16, 2005, the Court granted
plaintiffs' motion for summary judgment and entered a finding of liability against
defendant Sheriff of Cook County and in favor of Subclass One and Subclass
Two. Thereafter, on April 14, 2006, the Court granted defendants' motion to
certify the order granting summary judgment for an interlocutory appeal pursuant
to 28 U.S.C. §1292(b). The Court of Appeals granted permission to appeal on May
18, 2006.
4. Settlement Conference. In accordance with Seventh Circuit Rule
33, the parties participated in a Settlement Conference with Joel N. Shapiro,
Senior Conference Attorney of the United States Court of Appeals for the Seventh
Circuit. With the invaluable assistance of Mr. Shapiro, the parties have agreed to a
resolution of their disputes in this action. The class members desire to settle their
claims against Defendant, having taken into account through their counsel the
risks, delay and difficulties involved in establishing a right to recovery in excess of
2

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 5 of 12
that offered by this settlement and the likelihood that the litigation will be further protracted and expensive. Class Counsel has investigated the facts and the applicable law. Based on the foregoing, and upon an analysis of the benefits that this Settlement Agreement affords the class, Class Counsel considers it to be in the best interest of the class to enter into this Settlement Agreement.
5. No Admission of Liability. Defendants deny liability to Plaintiffs and the class for the claims alleged, but consider it desirable that the action and the claims alleged therein be settled upon the terms and conditions set forth in this Agreement, in order to avoid further expense and burdensome, protracted litigation, and to put to rest all claims, known or unknown, that have been or might be asserted by Plaintiffs or the class members against Defendant.
In consideration of the foregoing, Plaintiffs, Class Counsel and Defendants stipulate and agree that the claims of the named Plaintiffs and the class against Defendants should be and are hereby compromised and settled, subject to the approval of the court, upon the following terms and conditions.
TERMS 6. Relief to the Class. To resolve all claims at issue in this case, including but not limited to claims for compensatory damages and claims for attorneys' fees and expenses, the parties have agreed that, as part of the consideration for this Agreement, including the releases contained herein, Defendants agree to pay a total amount of $2,150,000 (Two Million One Hundred
3

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 6 of 12
and Fifty Thousand Dollars) (“Settlement Fund”) in full settlement of all claims by all members of both subclasses. With respect to all claims asserted on behalf of each subclass, plaintiffs have agreed to waive their right to individual damage trials. The defendants have agreed to waive their right to appeal from the district court's finding of liability.
7. Incentive Payments. Each of the named plaintiffs will receive, subject to the approval of the court, an incentive award of $25,000 to be paid from the Settlement Fund. Defendants agree not to oppose Plaintiffs’ petition for such incentive awards. Such awards shall be in lieu of, and not in addition to, any other awards to which the named plaintiffs may be entitled under this settlement.
8. Administration, Attorneys’ Fees and Expenses. The cost of administration of the settlement will be paid from the Settlement Fund, as will attorneys’ fees and expenses. These costs include, but are not limited to, notice to the class, attempting to locate class members who are not reached by first class mail to their last known address, processing of claim forms and 1099 forms, issuance of settlement checks, and mailing (by certified mail, return reply requested) of settlement shares to class members. The settlement will be administered by Analytics, Incorporated, who has provided these services in similar cases and who has previously been engaged by class counsel in this case for the mailing of class notice. The total amount of attorneys' fees and reimbursed expenses will not exceed 40% of the total Settlement Fund, in an amount to be set by the Court. Defendants have agreed not to challenge any such request for fees
4

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 7 of 12
and reimbursement of expenses that may be made by class counsel. Class counsel intends to seek a total award of fees and reimbursement of expenses in an amount not to exceed forty percent of the total settlement in accord with the standard in the community of contingent fees ranging between one-third and 40% of the total recovery, with the higher percentage applying in risky cases and in those with a likelihood of a small recovery. The parties are in agreement that, subject to the approval of the Court, one-third of the total settlement plus reimbursement for the actual cost of class notice and the actual cost of notice of this proposed settlement shall be paid to class counsel as fees and reimbursable expenses and that any balance remaining in the “Reserve Fund” (as described below) on December 1, 2007 shall be paid to class counsel as additional fees.
9. Payments to Class Members. The parties, while recognizing that each class member has a distinct claim for damages, agree that the expense, uncertainty, and delay of providing each class member with an individual determination of damages outweighs the benefits of distribution on an pro rata basis. After the deduction of attorney’s fees and reimbursable expenses, the costs of administration of this settlement, and the incentive awards to the named Plaintiffs, the remainder of the Settlement Fund (hereinafter the “Net Settlement”) will be distributed to each class member who has not excluded him or herself, and who timely returns a claim form. Each class member who submits a timely claim form will receive a payment from the balance of the Settlement Fund based upon the procedures described below. The amount that each unnamed member of the
5

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 8 of 12
plaintiff class will receive cannot be computed until there has been a final determination of the number of class members who timely return a claim form; based on experience in other, similar cases, counsel for the parties estimate that each class member will receive an award greater than four hundred dollars ($400) and less than one thousand dollars ($1,000).
10. Notice and Claims Procedures. a. Within seven days after the Court has given its preliminary approval to this proposed settlement, notice of the proposed settlement, information about the date and time of the fairness hearing, and notice of a right to opt-out (for those members that have not previously received such opportunity) will be sent by first class mail to the last ascertainable address of each member of subclass one and subclass two. As used herein, “ascertainable” means the last known address as enhanced by the United States Postal Service change of address database. For any notice which is returned as undeliverable, reasonable efforts will be made to locate the class member using industry standard address correction procedures. The cost of this notice will be paid in the first instance by Plaintiffs and, assuming that this settlement obtains final approval from the Court, will be reimbursed from the total amount of the settlement. b. The notice of the proposed settlement will be accompanied by a 1099 form and a claim form that includes the release described below. Class members will be required to return the executed forms to the class action
6

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 9 of 12
administrator on or before December 1, 2006. Late claimants may receive payment under the provisions of subparagraph (e) below.
c. Within 7 days of the “Final Approval Date,” as defined below, the total amount of the settlement shall be transferred by defendants to an IOLTA client trust fund account maintained within the State of Illinois by class counsel. As used herein, “Final Approval Date” means the 31st day following entry of the order approving the settlement or, if there is an appeal, when the Court's order approving the settlement reaches a final adjudication.
d. Efforts to locate class members will continue through the date of the fairness hearing.
e. On or before December 18, 2006, payments will be made to each class member who has timely returned the 1099 form and claim form. A claim form shall be deemed timely it is received by the class action administrator on or before December 1, 2006. The amount of these payments will be computed by dividing the “Net Settlement” less a “Reserve Fund” by the number of timely claimants. One fifteenth (1/15) of the “Net Settlement” shall be set aside as the “Reserve Fund” and will be maintained by class counsel in an IOLTA account within the State of Illinois.
f. The “Reserve Fund” will be used to pay claims of class members who submit claim forms and 1099 form to the class action administrator on or before the earlier of December 1, 2007 or the date that the reserve fund is
7

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 10 of 12
exhausted. Each such claimant will be paid in the same collar amount as the claims paid pursuant to subparagraph (e) above. In the event that the reserve fund is insufficient to pay the full amount to each claimant whose claim form and 1099 form is received on the day on which the fund is exhausted, each such claimant will receive an aliquot share of the balancing remaining in the fund.
g. No part of the “Reserve Fund” will be returned to defendants.
h. Any balance remaining in the “Reserve Fund” on December 1, 2007 shall be paid to class counsel as additional fees.
12. Release. Plaintiffs and the members of the class will grant Defendants the following release:
Plaintiffs and each class member do hereby release and forever discharge the Defendants, and their present or former parents, officers, directors, partners, members, principals, insurers, insureds, representatives, employees, agents, servants, predecessors, successors, subsidiaries, affiliates, shareholders, and assigns ("Released Parties") of and from all causes of action, suits, claims and demands, whatsoever, for anything that occurred from the beginning of time up through and including the date the Court gives final approval to this settlement agreement, in law or in equity, known or unknown at this time, arising out of all of the factual allegations made in the above-captioned action, under any legal theory. This release is conditioned on the final approval of the Settlement Agreement by the Court and Defendant meeting its obligations therein. 13. Enforcement and Reservation of Jurisdiction. The parties agree that the Court will reserve jurisdiction to enforce the provisions of this agreement
8

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 11 of 12

and that the Court may, for good cause, adjust and reset the dates set out in paragraph 10 above.
Agreed to, this 15th day of September, 2006.

/s/ Kenneth N. Flaxman ______________________________ Kenneth N. Flaxman 200 South Michigan Avenue, Ste 1240 Chicago, IL 60604 (312) 427-3200
Attorney for the Plaintiff Class

/s/ Kevin J. Clancy (with consent) ______________________________ Kevin J. Clancy Lowis & Gellen, LLP 200 W. Adams, Suite 1900 Chicago, Illinois 60606 (312) 364-2500 Attorneys for the Defendants

9

Case 1:03-cv-03086 Document 80 Filed 09/15/2006 Page 12 of 12
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of September, 2006, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Kevin J. Clancy, Esq., Lowis & Gellen, 200 West Adams, Ste 1900, Chicago, Illinois 60606, and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 </s> --

--

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, et al.,

)

)

Plaintiff,

)

)

-vs-

)

)

SHERIFF OF WILL COUNTY, et al., )

)

Defendant.

)

No. 03 CV 3086 (Judge Kendall)

PLAINTIFF’S MEMORANDUM IN SUPPORT OF APPROVAL OF PROPOSED SETTLEMENT

More than 5000 classmembers have received notice of the proposed settlement of this case.1 Not a single class member has objected to any portion of the settlement. For the reasons set out below, the Court should approve the proposed settlement.2
I. History of the Litigation This action began on May 8, 2003, with the ﬁling of a single count com-
plaint by original plaintiff Javar Calvin. Plaintiff ﬁled an amended complaint on
August 12, 2003, adding William Moore as a plaintiff and adding allegations to
challenge an alleged "strip search/shackling" policy. A third named plaintiff,
Charles Davis, was added in the second amended complaint on February 12,
_ ____________ 1. Notice was mailed to 6570 persons; 1552 notices were returned as non-deliverable
by the United States Post Ofﬁce. 2. As explained below at 7-8, class counsel, with the agreement of defendants,
requests that the Court modify the payout schedule.

- 2 -
2004. This pleading refocused plaintiffs’ policy allegations, and was ﬁled contemporaneously with a motion for class certiﬁcation.
On May 12, 2004, the district court granted the motion for class certiﬁcation for two of the three subclasses proposed by plaintiffs.3 Plaintiffs provided notice of the pendency of the case to the class and, after completing discovery on class liability issues, moved for summary judgment. Defendants opposed this motion, but the district court granted summary judgment on liability to the plaintiff class on December 16, 2005. Calvin v. Sheriff, 405 F.Supp.2d 933 (N.D.Ill. 2005).
On April 14, 2006, the court granted defendant’s motion to certify the order granting summary judgment for an interlocutory appeal under 28 U.S.C. §1292(b). The Seventh Circuit granted the petition for permission to appeal on May 18, 2006.
After the appeal was docketed in the Court of Appeals, the parties participated in a settlement conference with Joel N. Shapiro, Senior Conference Attorney of the United States Court of Appeals for the Seventh Circuit. With the invaluable assistance of Mr. Shapiro, which extended over several months, the parties agreed to the proposed settlement which is now before the Court for ﬁnal approval.
_______________
3. The court refused to certify on numerosity grounds the third subclass proposed by plaintiffs. A claim similar to that which plaintiffs had sought to assert for this subclass was rejected by the Seventh Circuit in Hernandez v. Sheahan, 455 F.3d 772 (7th Cir. 2006).

- 3 -
II. The Proposed Settlement The proposed settlement brings this litigation to an end. Defendants, who
abandoned the challenged policies during the pendency of this case, will pay a total amount of $2,150,000. This Fund will cover administration of the settlement, i.e., notice to the class, attempting to locate class members who are not reached by ﬁrst class mail to their last known address, processing of claim forms and 1099 forms, issuance of settlement checks, and mailing (by certiﬁed mail, return reply requested) of settlement shares to class members. Class counsel has, to date, advanced $7,192.73 towards notice; counsel expects that an additional $35,000 will be required to process the claims.
Attorneys’ fees and expenses, and incentive awards to the three named plaintiffs will also come from the Fund. The balance of the Fund will be distributed on an aliquot basis to the class.
The settlement agreement provides that, subject to the approval of the court, each of the three named plaintiff will receive an incentive award in the amount of $25,000.4 This amount reﬂects the service that each named plaintiff provided to the class and is of comparable magnitude to incentive awards in other jail strip search cases.5
_______________
4. The incentive award is to paid to each named plaintiff without any deduction for attorneys’ fees or costs.
5. The class representative received a $25,000 incentive award in Maneely v. City of Newburg, S.D.N.Y., No. 01-cv-2600; each of the two class representatives in Blihove v. St. Croix County, W.D.Wis. No. 02-cv-450 received a $35,000 incentive award, and $300,000 was distributed to three class representatives in Haney v. Miami Dade County, S.D. Fl., No. 04-cv-20516.

- 4 -
The settlement agreement also provides that attorneys fees and reimbursed expenses will not exceed 40% of the Fund.6 Assuming that the Court approves the requested fee, as well as the proposed incentive awards, there will be $1,172,800.00 available for distribution to the class after payment of administration costs.
The class notice (Exhibit 1, attached), advised members of the class that each would receive at least four hundred dollars, with a probable payout of seven hundred dollars. 765 claims forms have been returned as of November 15, 2006. Assuming that this number does not increase beyond 800 by the December 1st deadline, each class member would receive $1,466.7
III. Standards for Approving the Settlement of a Class Action The standards for approving the settlement of a class action were recently
restated by the Seventh Circuit in Synfuel Technologies, Inc. v. DHL Express (USA), Inc. 463 F.3d 646, 653 (7th Cir. 2006):
In order to evaluate the fairness of a settlement, a district court must consider the strength of plaintiffs’ case compared to the amount of defendants’ settlement offer, an assessment of the likely complexity, length and expense of the litigation, an evaluation of the amount of opposition to settlement among affected parties, the opinion of competent counsel, and the stage of the proceedings and
_ ____________ 6. This percentage is set out in the notice of settlement that was mailed to each class
members: "Attorneys’ fees and expenses will be paid from this Settlement Fund in an amount to be set by the Court and not to exceed 40% of the Fund." 7. As explained below at 7-8, class counsel, with the agreement of defendants, suggests that each class member receive an initial payment of $1,000, and a second payment of any balance remaining on December 1, 2007.

- 5 -
the amount of discovery completed at the time of settlement. [citation omitted] The most important factor relevant to the fairness of a class action settlement is the ﬁrst one listed: the strength of plaintiff’s case on the merits balanced against the amount offered in the settlement. [citation omitted]
Before the Seventh Circuit granted the petition to appeal, class counsel believed that the order granting summary judgment did not involve any "contestable" legal issue, an essential element to the grant of permission to appeal under 28 U.S.C. §1292(b). Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d 674, 675 (7th Cir. 2000). Class counsel vigorously argued this point in opposing the petition for permission to appeal, pointing out that each circuit which has considered the constitutionality of policies like those at issue in this case had found the policies to be unlawful. The Seventh Circuit, however, did not accept this argument when it granted permission to appeal.
Our court of appeals has not been reluctant to plow new ground in civil rights cases. For example, in Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001), opinion on denial of rehearing, 260 F.3d 824 (7th Cir. 2001), the Seventh Circuit overruled its long standing precedent and departed from decisions in eight circuits to hold that 42 U.S.C. §1983 does not include a cause of action analogous to a common law action of malicious prosecution. Similarly, in Wallace v. Kato, 440 F.3d 421 (7th Cir. 2006), cert. granted, June 19, 2006, No. 05-1240, the Seventh Circuit overruled two of its recent decisions to establish a categorical rule of accrual for Section 1983 cases arising from an unlawful arrest. As with its holding in Newsome, the categorical rule that our Court of Appeals adopted in Wallace is different from the rule applied in other circuits.
In light of the uncertainty that was added to the case by the grant of the petition for permission to appeal, the settlement provides a reasonable monetary

- 6 -
recovery to the unnamed members of the plaintiff class. If each class member in this case receive $1,000, this would be the same as in two other jail strip search cases, Doan v. Watson, S.D.Ind., No. 99-4-C-B/S, Bull v. Sacramento County, California Superior Court, CA No. 01AS01545, and Kahler v. Renssalear County Jail, N.D.N.Y., No. 3-cv-1324.
In addition to considering the strength of plaintiff’s case on the merits and the monetary payment to each class member, "district judges presiding over proposed class settlements are expected to give careful scrutiny to the terms of proposed settlements in order to make sure that class counsel are behaving as honest ﬁduciaries for the class as a whole because class actions are rife with potential conﬂicts of interest between class counsel and class members." (citations omitted) Mirfasihi v. Fleet Mortg. Corp. 450 F.3d 745, 748 (7th Cir. 2006). The proposed settlement in this case was negotiated with the assistance of the Seventh Circuit’s Senior Settlement Attorney Joel Shapiro, and was thereby pre-screened to avoid any such conﬂicts.
The settlement in this case is a reasonable resolution of this class action and should be approved by the Court.

- 7 -
IV. The Proposed Modiﬁcation of the Pay-Out Schedule As drafted by the parties, the settlement agreement calls for a single pay-
out to class members who returned their claim form by December 1, 2006. Class members who submit claim forms after the December 1st date but before December 1,2007 would be paid from a "reserve fund" until that fund is exhausted.8
765 claims forms have been returned as of November 15, 2006. Assuming that this number does not increase beyond 800 by the December 1, 2006, each class member would receive $1,466, and the "reserve fund" would allow payments to about another 100 class members.
The return rate (15%, 765 claim forms from 5018 presumably delivered notices), is much lower than the 20% to 30% range that class counsel had anticipated. Class counsel expects that the response rate will increase as soon as checks are mailed out.
To insure that the settlement is distributed to as many class members as possible, class counsel therefore suggests that the initial payout on December 18, 2006 be limited to $1,000. The balance of the settlement fund, after payment of incentive payments, attorneys’ fees and costs, and the costs of administration of the settlement, would be held as the "reserve fund." Class members who come forward before December 1, 2007 would receive the same $1,000 payment, until
_______________
8. The "reserve fund" was set at 1/15 of the total settlement; any balance remaining in the "reserve fund" would be paid to class counsel as additional fees.

- 8 -
the reserve fund is exhausted. If money remain in the reserve fund on December 1, 2007, it will be distributed to class counsel (for additional fees not to exceed 40% of the total settlement), with any balance (after payment of the costs of a second distribution), being distributed on an aliquot basis to each class member. This revision to the payout schedule would be consistent with the class notice, which advises each class member that the likely payout "may be approximately seven hundred dollars." (A copy of the class notice is attached as Exhibit 1.) V. Attorneys Fees
"[A] lawyer who recovers a common fund for the beneﬁt of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole." Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). This is because "persons who obtain the beneﬁt of a lawsuit without contributing to its costs are unjustly enriched at the successful litigant’s expense." Id., citing Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970).
The rule in this circuit is that "when deciding on appropriate fee levels in common-fund cases, courts must do their best to award counsel the market price for legal services, in light of the risk of nonpayment and the normal rate of compensation in the market at the time." In re Synthroid Marketing Litigation, 264 F.3d 712, 718 (7th Cir. 2001), opinion following remand, 325 F.3d 974 (7th Cir. 2003). "The object in awarding a reasonable attorney’s fee . . . is to simulate the market . . . The class counsel are entitled to the fee they would have received had they handled a similar suit on a contingent fee basis, with a similar outcome, for a paying client. In re Continental Securities Litigation, 962 F.2d 566, 572 (7th Cir. 1992).
Civil rights cases are typically litigated on a contingent basis, where the lawyer agrees to accept a percentage of the recovery as his (or her) fee, subject

- 9 -
to a credit for any statutory fees are awarded. This percentage ranges from the customary one-third, Freeman v. Mayer, 95 F.3d 569, 570 (7th Cir. 1996) to 40%. Kirchoff v. Flynn, 786 F.2d 320, 322 (7th Cir. 1986). Attorneys use the higher percentage when the claim is small and the case is likely to be resolved by settlement, without any award of statutory fees.
In accord with these principles, class counsel seeks an award (to cover fees and litigation expenses) of forty percent of the settlement fund, with onethird to be paid contemporaneously with distribution to the class, and the balance to be held in the "reserve fund," and paid on December 1, 2007, if the fund has not been exhausted by late claimants.9 VI. Conclusion
For the reasons above stated, plaintiffs request that the Court approve the proposed settlement, authorize incentive payments of $25,000 to each of the named plaintiffs, and approve counsel’s request for an award of fees of forty percent of the settlement fund, with fees in the amount of one-third of the settlement fund to be paid contemporaneously with distribution to the class, and the balance to be held in the "reserve fund," and paid to counsel on December 1, 2007 if the "reserve fund" has not been exhausted by late claimants.
Plaintiffs also request that the Court modify the payout schedule, so that the initial payout on December 18, 2006 is limited to $1,000 to each class
_ ____________ 9. Counsel also seeks reimbursement for the $7,192.73 that he has advanced for class
notice.

- 10 -
members who has ﬁled a claim, with the remainder being added to the "reserve fund" and distributed to class members who submit claim forms after December 1, 2006 and before December 1, 2007, with any balance remaining in the "reserve fund," in excess of the additional attorney fees referred to above, to be distributed on a aliquot basis for each class member who has ﬁled a claim form.
Finally, plaintiffs request that the Court authorize the reimbursement to class counsel of the $7,192.73 that he has advanced for class notice and authorize the payment from the settlement fund to Analytics, Incorporated of its ordinary and necessary expenses in administering the settlement.
Respectfully submitted,
/s/ Kenneth N. Flaxman ________________________ KENNETH N. FLAXMAN ARDC No. 830399 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email) attorney for the plaintiff class

CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of November, 2006, I electronically ﬁled the foregoing with the Clerk of the Court using the CM/ECF system which will send notiﬁcation of such ﬁling to the following: Kevin J. Clancy, Esq., Lowis & Gellen, 200 West Adams, Ste 1900, Chicago, Illinois 60606, and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: none.
/s/ Kenneth N. Flaxman ______________________ Kenneth N. Flaxman ARDC Number 08830399 200 S Michigan Ave, Ste 1240 Chicago, IL 60604-2430 (312) 427-3200 (phone) (312) 427-3930 (fax) knf@kenlaw.com (email)

 </s> FILED

FEB 122004

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Judge Robert W. Gettleman United States District Court

EASTERN DIVISION

JAVAR CALVIN, et aI., Plaintiff,
-vs-
SHERIFF OF WILL COUNTY, Defendant.

)

)

)

)

No. 03 CV 3086

)

)

(Judge Gettleman)

)

)

)

DOCKETEn
FEB 1 32004

SECOND AMENDED COMPLAINT Plaintiffs, by counsel, alleges as follows:

1. This is a civil action arising under 42 U.S.C. §1983. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1343.

2. Plaintiff Javar Calvin is a resident of the Northern District of Illinois.

3. Plaintiff William Virble Moore is a resident of the Northern District of Illinois.

4. Plaintiff Charles Davis is a resident of the Northern District of Illinois.

5. Defendant Sheriff of Will County is sued in his official capacity.

6. Defendant Will County, Illinois is an Illinois municipal corporation joined in this action pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003). Javar Calvin
7. In October of 2002, plaintiff Calvin was enlarged on bond in a misdemeanor case pending in the state court in Joliet, Illinois.

\\

-2-
8. On October 19,2002, a police officer of the City of Bolingbrook, Illinois arrested plaintiff Calvin because records maintained by defendant mistakenly indicated that a warrant had been issued for plaintiff s arrest.
9. Plaintiff Calvin was brought to the Will County Jail on October 20, 2002 at about 4:00 a.m.
10. Upon his arrival at the jail, plaintiff was strip searched in accordance with a policy of the Sheriff of Will County
11. While at the jail, plaintiff repeatedly insisted that he had been arrested by mistake and that he was not sought in any outstanding warrant. Calvin's protestations were ignored by jail personnel.
12. Calvin was scheduled to appear before a judge in the morning of Monday, October 21, 2002. Calvin determined that he was not among the prisoners who were being taken to court and complained to jail officials. The jail officials responded to Calvin's complaint by placing him in disciplinary segregation.
13. Shortly after 9:00 a.m. on October 21, 2002, a judge reviewed Calvin's custody status, concluded that Calvin was being held in error, and ordered his release. Jail personnel ignored this order until 1:00 p.m., when they took Calvin from disciplinary segregation and brought him before the judge.
14. Before being brought before the judge, and in accordance with a policy of
the Sheriff of Cook County, Calvin was strip searched.
15. The judge reaffirmed his order that plaintiff should be immediately released.

•

-3-

16. After the judge ordered that Calvin should be immediately released, jail personnel maintained Calvin in handcuffs and shackles and returned him to the jail.
17. At the jail, Calvin was strip searched and returned to disciplinary segregation, where he remained until he was released at about 7:30 p.m. that night.
William Moore 18. On May 18, 2003, a police officer of the City of Chicago Ridge, Illinois
arrested plaintiff Moore because records maintained by defendant mistakenly indicated that a warrant had been issued for plaintiff's arrest.
19. Moore was brought to the Will County Jail on May 18, 2003 at about 9:00 a.m.
20. Upon his arrival at the jail, plaintiff was strip searched in accordance with a policy of the Sheriff of Will County
21. While at the jail, Moore repeatedly insisted that he had been arrested by mistake and that he was not sought in any outstanding warrant.
22. Moore's protestations were ignored by jail personnel who, in accordance with the policies of defendant, held plaintiff overnight at the jail.
23. In accordance with the policies of defendant, Moore was strip-searcl;1ed, handcuffed, shackled and taken before a judge at about 1:30 p.m. on May 19,2003. The judge ordered that plaintiff was to be released immediately.

-4-
Charles Davis 24. On September 21, 2003, a police officer of the City of Joliet, Illinois
arrested plaintiff Davis because records maintained by defendant mistakenly indicated that a warrant had been issued for plaintiffs arrest.
25. Davis was brought to the Will County Jail at about 5:00 p.m. on September 21, 2003.
26. Upon his arri val at the jail, plaintiff was strip searched in accordance with a policy of the Sheriff of Will County
27. While at the jail, Davis advised correctional staff that, before his arrest, he had been taking prescribed pain medication, that he had not been provided with any pain medication after his arrest, and that he was in constant pain.
28. Correctional staff infonned Davis that it would take a week or two before he could begin to receive his prescribed pain medication.
29. In accordance with the policies of defendant, Davis was strip-searched, handcuffed, shackled and taken before a judge at about 10:00 a.m. on September 22, 2003. The judge concluded that Davis had been arrested in error and ordered his immediate release.
30. After the judge ordered that Davis be released immediately, in accordance with the policies of defendant, Davis was held in handcuffs and shackles and taken back to the jail where he was again strip searched and placed in a cell.
31. Davis was released from the cell after several hours of additional incarceration.

, -5 -
CLASS ALLEGATIONS
32. Plaintiffs bring this case on behalf of the following three subclasses, con-
sisting of all persons who from May 8, 2001 to the date of entry of judg-
ment have been, is, or will be
1. Arrested on an erroneous computer indication that a warrant has been issued for his (or her) arrest for failure to appear in court in a misdemeanor or traffic case and is held overnight at the Will County Jail;
II. Arrested on a warrant issued for failure to appear in court in a misdemeanor or traffic case and, following arrival at the Will County Jail, is or was strip searched without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons.
III. In the custody of the Sheriff of Will County on a traffic or misdemeanor charge, taken to court from the Will County Jail, ordered released by the Court or became entitled to release because the charge on which he (or she) was being held was no longer pending or was dismissed at the hearing, was ordered released on his (or her) own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release, was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance, was not the subject of any detainer or warrant, was returned in shackles to the Will County Jail to be processed out of the custody of the Sheriff of Will County, and was strip searched without any individualized finding of reasonable suspicion that he (or she) was concealing contraband or weapons.
33. Plaintiffs Calvin, Moore, and Davis will adequately represent the claims of
Subclass I and contend that the Sheriffs refusal to have adopted a system
to check the correctness of "failure to appear warrants" amounts to deli-
berate indifference and results in unreasonable detention.

;

•

-6-

34. Plaintiffs Calvin, Moore, and Davis will adequately represent the claims of Subclass II and contend that Sheriffs policy of strip searching (both upon arrival at the jail and before being taken to court) persons arrested on "failure to appear warrants" that had been issued in traffic or misdemeanor cases without any individualized finding of reasonable suspicion that the arrestee was concealing contraband or weapons results in deprivations of Fourth Amendment rights;
35. Plaintiffs Calvin and Davis, who were each entitled to immediate release after their respective court appearances, will adequately represent the claims of Subclass III and contend that the Sheriffs policy of shackling and then strip searching persons upon their return from court when the person is entitled to immediate release results in deprivations of Fourth Amendment rights.
36. Each proposed subclass consists of more than one hundred persons and satisfies the numerosity requirement of Rule 23(a).
37. The claims asserted for each subclass present common questions of fact and law, and plaintiffs' individual claims are typical of those asserted for each subclass.
38. Plaintiffs are represented by competent counsel and will fully and adequately represent each subclass.
39. Certification of each subclass is appropriate under Rule 23(b)(3) because common questions predominate over individual issues and a class action is superior to other methods for the fair and effective adjudication of the

-7 -
controversy. DAMAGES
40. The above described policies of defendant, and the actions of defendant's agents and employees taken because of those policies, caused, or will cause, each plaintiff and each member of each proposed subclass to be deprived of rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States, to be deprived of their liberty, incur personal injuries, and lose wages.
41. Plaintiffs demand trial by jury.
WHEREFORE, plaintiffs pray that the Court order that this case may proceed as a class action on behalf of the three identified subclasses and that judgment be entered in favor of plaintiffs and each member of the plaintiff class for appropriate damages in an amount in excess of twenty five thousand dollars as compensatory damages and that the costs of this action, including reasonable attorneys' fees, be taxed against defendants.
NNETH N. FLAXMAN 200 South Michigan Avenue Suite 1240 Chicago, Illinois 60604-2340 (312) 427-3200 attorney for plaintiffs

I
CERTIFICATE OF SERVICE
I hereby certify that I caused a copy of the foregoing to be served on Jeffrey S. Pavlovich, Esq., Leahy, Eisenberg & Frankel, Ltd., 161 N Clark St., Ste 1325, Chicago, IL 60601-3288, by delivery this 12th day of February, 2004.
200 South Michigan Avenue Suite 1240 Chicago, illinois 60604-2340 (312) 427-3200 attorney for plaintiff

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, WILLIAM VIRBLE MOORE, )

and CHARLES DAVIS,

)

)

Plaintiffs,

)

)

v.

)

)

SHERIFF OF WILL COUNTY and WILL

)

COUNTY, ILLINOIS,

)

)

Defendants.

)

)

Case No. 03 C 3086 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Defendants Will County and the Sheriff of Will County (collectively “Defendants”) request that this Court amend the December 16, 2005 Memorandum Opinion and Order1 to certify the order

for interlocutory appeal pursuant to 28 U.S.C. §1292(b). Because the issues raised in this appeal

meet the requirements for certification, the motion to amend the order is granted.

Background

Plaintiffs Javar Calvin, William Virble Moore, and Charles Davis (collectively “Plaintiffs”)

brought a class action suit under 42 U.S.C. §1983 against Will County, Illinois and the Will County

Sheriff, alleging that Defendants violated Plaintiffs’ Fourth Amendment rights by conducting strip

searches in a Will County detention facility. Specifically, Plaintiffs challenged Will County “Policy

No. 5080,” created by the County in response to Illinois statute 725 ILCS 5/103-1(c), which provides

in relevant part:

1
The Memorandum Opinion and Order is a published opinion. See Calvin v. Will County, 405 F. Supp. 2d 933 (N.D. Ill. 2005).

(c) No person arrested for a traffic, regulatory or misdemeanor offense, except in such cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon or controlled substance. 725 ILCS 5/103-1(c). However, the statute later states that the provision of section (c) “shall not apply when the person is taken into custody by or remanded to the sheriff or correctional institution pursuant to a court order.” 725 ILCS 5/103-1(j). The Court2 certified two subclasses in the action: the “Post-Arrest Strip Search” subclass and the “Post-Release Strip Search” subclass. See December 16, 2005 Memorandum Opinion and Order at 2 (hereafter “Memorandum Opinion”). Both classes contain persons detained on misdemeanor or traffic offenses that did not involve weapons or controlled substances. Both classes contain persons who were detained after a failure-to-appear warrant (“FTA Warrant”) had been issued against them, and after they had been given a reasonable time to post bond and were unable or unwilling to do so. After providing notice to the classes and commencing discovery, Plaintiffs moved the Court to bifurcate discovery on the issues of liability and damages. See Docket No. 39. The Court granted the motion, and Plaintiffs moved for summary judgment solely on the issue of liability. See Docket No. 49. Defendants opposed summary judgment on liability and argued that material facts existed meriting trial or, in the alternative, that Defendants were entitled to judgment as a matter of law. The Court determined in its Memorandum Opinion that there were no genuine issues of material fact, because Will County followed Policy No. 5080, and a Will County officer testified to the manner
2
At that time, the case was assigned to a different judge in this district. On January 23, 2006, three days after Defendants filed the Motion discussed herein, the case transferred to the present judge as part of the Executive Order creating the judge’s initial calendar.
2

of the searches and that the County conducted the strip searches on the members of the Plaintiff class without reasonable suspicion that they carried weapons or contraband. Memorandum Opinion at 7. The Court concluded that the dispute could be resolved as a matter of law on the “reasonableness” of the search in light of the undisputed facts and the justifications for the policy. The Court held as a matter of law that the Will County policy and practice violated the Fourth Amendment and granted summary judgment on liability in favor of Plaintiffs.
Within one month of the issuance of the Court’s Memorandum Opinion and Order, Defendants filed their motion to amend the order to certify for interlocutory appeal the question of Defendant’s liability under 42 U.S.C. §1983. See Defendants’ Motion to Amend the Memorandum Opinion and Order Dated December 16, 2005 to Include Certification for Interlocutory Appeal at 4 (hereafter “Def. Mot. Amend”). Defendants believe there are two “central issues” in this case warranting appeal:
The first is whether conducting strip searches of all individuals who were arrested under [Failure to Appear, or “FTA”] warrants in misdemeanor and traffic cases, only after they have been unable or unwilling to post bond and thus are required to be housed with other inmates violates a person’s Fourth Amendment constitutional rights. The second issue is whether conducting strip searches of all individuals who had been held at the facility, taken to court for a hearing, placed in contact situations with third-parties outside of the County’s control, ordered released by a judge, and then returned to the Facility for an [sic] processing of their release violates a person’s Fourth Amendment constitutional rights. Def. Mot. Amend at 4. The parties have not yet conducted discovery on the issue of damages.
Legal Standard A district court order not otherwise appealable may be reviewed by the Court of Appeals in those cases where there exists ‘a controlling question of law as to which there is substantial ground
3

for difference of opinion and [where] an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §1292(b). The district court may certify an order for interlocutory appeal at its discretion, if a request for review of this kind has been brought within a reasonable time following the entrance of the order. Id., Richardson Elecs., Ltd. v. Panach Broad. Of Pennsylvania, Inc., 202 F.3d 957, 958 (7th Cir. 2000).
Discussion In order for a district court to certify a question for interlocutory appeal under 28 U.S.C. §1292(b), “there must be a question of law, it must be controlling, it must be contested, and its resolution must promise to speed up the litigation.” Ahrenholz v. Board of Trustees of the Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in original); see 28 U.S.C. § 1292(b).3 The Seventh Circuit has instructed district courts not to certify interlocutory orders under § 1292(b) “[u]nless all these criteria are satisfied....” Id. at 676 (emphasis in original). The parties agree that the constitutionality of the search is controlling. The parties also agree that a reversal would speed up the litigation, because a reversal by the Court of Appeals granting summary judgment for Defendants would terminate the case and obviate the need for the damages portion of discovery in this matter. Therefore, the Court will focus on the two portions of the Ahrenholz test about which the parties do not agree: whether the issue to be appealed is a question of law, and whether it is contested.
3
Plaintiffs do not dispute that Defendants met the fifth, non-statutory requirement for certification under Section 1292(b), that the petition for certification be filed within a reasonable time. Ahrenholz, 219 F.3d at 675-76.
4

A. Question of law A district court may certify an interlocutory order for appeal only if the appeal concerns a “question of law.” Ahrenholz, 219 F.3d at 677. In order to be a “question of law” meriting certification, the question should be a “reference to a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine” that “the court of appeals could decide quickly and cleanly without having to study the record. . .” Id. As a threshold matter, the order to be appealed is an order for summary judgment. As such, Plaintiffs argue that the mere fact that this order is one of summary judgment should render certification for interlocutory appeal inappropriate because any determination would require appellate review of a factual record. See Ahrenholz, 219 F.3d at 677 (“[T]o decide whether summary judgment was properly granted requires hunting through the record compiled in the summary judgment proceeding to see whether there may be a genuine issue of material fact lurking in there.”). However, Defendants’ response to the summary judgment motion did not contest the issues of material fact in this case - the text of the policy, and the deposition testimony by a Will County officer as to the county’s implementation of the written policy. Defendants’ motion for interlocutory appeal essentially concedes that no material facts are in dispute, as evidenced by Defendants’ decision to propose two “central” questions to send to the court of appeals. These two questions, reprinted above, attempt to condense the Court’s 26-page opinion into a single paragraph that would qualify as “questions of law.” Were the appellate court to answer these two “central” questions in Defendants’ favor, the appellate court presumably would reverse the Court and grant summary judgment in favor of Defendants, rather than remanding the case for trial on the merits.
5

While Defendants’ defined issues do not accurately reflect the issues in the case because neither includes the uncontested fact that the Will County officers lacked reasonable suspicion of weapons or contraband, the fact that Defendants have moved to condense the opinion to two “central” questions of law is sufficient basis in the Court’s view that all parties agree that the issues before the Court at this time are “questions of law” that are appropriate for resolution on appeal and do not require the Court of Appeals to review the factual record any farther than the limited uncontested facts designated in the Memorandum Opinion.
B. Contested Defendants argue that the constitutionality of conducting blanket strip searches on pre-trial detainees who were (i) charged with misdemeanor and traffic offenses, (ii) have arrest warrants for failure to appear at a court hearing, (iii) are unable to post bond, and (iv) are housed in a general jail population, constitutes a “contested” question of law meriting interlocutory appeal. A question of law is contested if there exists a “substantial ground for difference of opinion” concerning the legal question to be appealed: A question of law is contestable if there are substantial conflicting decisions regarding the claimed controlling issue of law, or the question is not settled by controlling authority and there is a substantial likelihood that the district court ruling will be reversed on appeal. United States v. Moglia, No. 02 C 6131, 2004 WL 1254128 (N.D. Ill. June 7, 2004). Defendants conceded during the proceedings on summary judgment that Defendants did not have reasonable suspicion that “any of the class members had contraband or weapons.” Memorandum Opinion at 7. Defendants rely on three primary facts to show that despite the lack of reasonable suspicion of weapons or contraband, the circumstances in Will County are different than
6

those discussed in the controlling precedent in this circuit. First, the county court had issued an FTA warrant for each Plaintiff class member. Second, none of the Plaintiff class members could post bond after a reasonable period, or in some cases refused to post bond. Third, each of the members of the Plaintiff class were housed in a group detention facility while awaiting a court hearing.
Defendants argue that each of the three elements stated above combine to justify the need to keep the search policy. Each of the class members had an outstanding FTA warrant at the time they were searched, so the officers were under a duty to arrest the person and hold them until one of two events occurred: either the persons posted bond, or they went before a judge. As none of the class members could or would post bond, the officers therefore were required to hold the class members until such time as they could go before a judge. And because Will County has general jail facilities, the officers had a duty to maintain security in a general jail population. This combination of factors, claim Defendants, justify the blanket search policy codified in Policy 5080.
Defendants claim that there exists a “substantial ground for difference of opinion” with respect to the search policy at issue, because there exists a split of authority between the state of Illinois and the Seventh Circuit with respect to these three qualifications. Illinois amended its statute governing rights on arrest in 1981 to include the subparagraphs at issue in this case:
(c) No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon or controlled substance. (j) The provisions of subsections (c) through (h) of this Section shall not apply when the person is taken into custody by or remanded to the sheriff or correctional institution pursuant to a court order.
7

725 ILCS 5/103. Two state court opinions, each published during the last two years, explicitly upheld the constitutionality of the amended Illinois statute in circumstances in which a person (i) was arrested pursuant to a civil or misdemeanor FTA, (ii) did not post bond, and (iii) had to be housed in a general jail population. See People v. Mitchell, 353 Ill. App. 3d 838, 819 N.E.2d 1252 (2d Dist. 2004); and People v. Johnson, 334 Ill. App. 3d 666, 778 N.E.2d 772 (4th Dist. 2002). Both Mitchell and Johnson addressed the constitutionality of 725 ILCS 5/103-1 in the context of a motion to suppress evidence uncovered during the searches, as opposed to the class action scenario here.
Mitchell and Johnson both held that civil or misdemeanor warrants are “court orders” that comply with the Illinois statute, and the strip searches conducted for jail security did not violate the Fourth Amendment. In Johnson, police discovered that the passenger in a car stopped for a routine traffic violation had an outstanding civil warrant. Johnson, 334 Ill. App. 3d at 670. Police arrested the passenger pursuant to the civil warrant and strip searched him before placing him in a general jail population, revealing illegal substances in the passenger’s possession. Id. The Court found that the strip search was constitutional despite the police officer’s testimony that he had no reasonable suspicion that the passenger had controlled substances, because the defendant “would be placed with other arrestees in a common holding area” and “defendant’s placement in the general jail population was imminent.” Id. At 674. Likewise, the court in Mitchell upheld a strip search conducted upon an individual with an outstanding misdemeanor warrant, explicitly stating that the individual was arrested not for a new offense, but ‘pursuant to a misdemeanor arrest warrant, which meets the ‘court order’ requirement of section 130-1(j).” Mitchell, 353 Ill. App. 3d at 840-41.
On the other hand, strip searches of misdemeanor traffic offenders are illegal under prevailing law in this circuit without individual suspicion that these individuals may be carrying weapons or
8

contraband. Tinetti v. Wittke, 479 F. Supp. 486 (N.D. Ill. 1979) affirmed and adopted per curiam 620 F.2d 160 (7th Cir. 1980) (strip searches of persons arrested and detained for non-misdemeanor traffic offenses without probable cause to believe the persons are concealing weapons or contraband are unconstitutional); Mary Beth G v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983) (holding that strip searches of misdemeanor offenders without reasonable belief that they might be carrying contraband are unconstitutional).4 Defendants cannot cite to a federal case holding that the issuance of a bench warrant can substitute for the requirement of reasonable suspicion that an arrested individual possesses weapons or contraband.
As the Court stated in its Memorandum Opinion: “[I]t is difficult to reconcile prohibiting automatic strip searches of people arrested on traffic and misdemeanor charges - as the Illinois statute, case law, and Policy 5080 all do - with allowing the strip search of people arrested for a failure to appear regarding the identical charges.” Memorandum Opinion at 13. Nonetheless, this contradiction has been codified in Illinois 725 ILCS 5/103(c) and (j), and has been upheld expressly by two recent Illinois appellate court decisions.
Both decisions recognize that prison officials who are required to hold an arrestee pursuant to a Court order for failure to appear must be afforded the control necessary to maintain a safe and secure environment for all individuals housed within their walls. Once a court order mandates that the prison official hold that arrestee, such that the prison must place the arrestee within its population for an undefined period of time, the Illinois courts recognize the over-riding need to search the
4Defendants rely upon Roscom v. City of Chicago, 570 F. Sup p. 12 59 (D.C . Ill. 1983). Roscom upheld the strip search of a person legally arrested for d ecep tive practices. Specifically, Roscom stated in upholding the search that “irrespective of the crimes charged against pre-trial detainees, Courts may reasonably consider any of them could be carrying weapons or contraband, either brought with the detainee into the County Jail or procured from other persons in the holding cell.” Id. at 1262.
9

arrestee for security purposes. No Seventh Circuit opinions have addressed the Illinois law or the factual scenario at issue here, and the case law of this circuit dates from the early 1980's, in one case prior to the Illinois law’s amendment.5 As such, the Court believes that this difference creates a “contested issue of law” meriting certification for interlocutory appeal pursuant to § 1292(b).
WHEREFORE, the Court finds that the Memorandum Opinion and Order of December 16, 2005 meets the requirements for interlocutory appeal. The Order involves an issue of law that is contested and controlling, and its resolution will substantially speed the termination of the litigation. The Court grants the motion of Defendants and amends the order to permit interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

So ordered. Dated: April 14, 2006

________________________________________ Virginia M. Kendall, United States District Judge Northern District of Illinois

5Plaintiffs cite to an unpub lished recent district case from this district on point and in their favor, Gary v. Sheahan, No. 96 C 7294, 1998 WL 547116 at *13 (N.D. Ill. Aug. 20, 1998):
[I]f jail security is to justify the search the detainee must present some threat to jail security. The facts in the cases where searches have been upheld suggest some reasonable cause on the part of the authorities to suspect the detainees might be trying to smug gle weapo ns or contraband into the ja il. . . A person detained for a violent crime may presumptively be suspected of carrying a weapon. However, when an arrestee is being detained briefly awaiting the posting of bond on a traffic or misdemeanor offense, generally a strip-search can be made only on reasonable suspicion that the attestee [sic] is carrying or concealing a weapon or contraband, unless authorities can demonstrate that misdemeanants regularly pose a threat to jail security.”
10

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAVAR CALVIN, et al., Plaintiff, -vs-
SHERIFF OF WILL COUNTY, Defendant.

)

)

)

)

No. 03 CV 3086

)

)

(Judge Kendall)

)

)

)

NOTICE OF HEARING ON SETTLEMENT OF CLASS ACTION
TO: All persons who were in custody at the Will County Jail on a trafﬁc or misdemeanor charge (or on a warrant issued for failure to appear on a trafﬁc or misdemeanor charge) after May 7, 2001.
A proposed settlement of the "Will County Jail strip search case" has been submitted to the Court for approval. This document describes the proposed settlement and gives instructions about what you must do if you believe that the proposed settlement should not be approved.
INTRODUCTION The plaintiffs in this action are all persons who were in custody at the Will County Jail on a trafﬁc or misdemeanor charge (or on a warrant issued for failure to appear on a trafﬁc or misdemeanor charge) after May 7, 2001. The defendants are the Sheriff of Will County and the Will County, Illinois.
On May 12, 2004, the Court ordered that the case may proceed as a class action. Thereafter, on April 14, 2006, the Court granted plaintiffs’ motion for summary judgment and entered a ﬁnding of liability against the Sheriff of Will County. On April 14, 2006, the Court granted defendants’ motion to certify the order granting summary judgment for an immediate appeal. The parties, with assistance from a settlement attorney of the United States Court of Appeals for the Seventh Circuit, were able to negotiate a settlement.
THE PROPOSED SETTLEMENT Counsel for the parties have agreed to a settlement of all claims at issue in this case. With respect to the claims asserted on behalf of the class, the plaintiff class will waive its right to individual damage trials, defendants will waive their right to appeal from the district court’s ﬁnding of liability and defendants will pay the sum of two million one hundred and ﬁfty thousand dollars in full satisfaction of all claims for damages, expenses, and attorneys’ fees. Attorneys’ fees and expenses will be paid

- 2 -
from this common fund, in an amount to be set by the Court and not to exceed 40% of the total. The three named plaintiffs will each receive $25,000. The remainder of the fund, less the costs of administering the settlement, will be paid to each class member in an equal amount. Class counsel estimates that each class member will receive at least four hundred dollars; based on experience in other, similar cases, class counsel believes that each member of the each class will receive about seven hundred dollars.
NOW, THEREFORE, TAKE NOTICE:
1. A hearing will be held before this Court in Courtroom 1719, United States Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, on ______ __, ____, at __:__ p.m., or as soon thereafter as counsel can be heard. The hearing shall be for the purpose of determining whether the terms of the proposed consent decree are fair, reasonable, and adequate, and whether the proposed consent decree should be approved by the Court. This hearing may be adjourned from time to time without further written notice to the class.
2. Any class member who wishes to be heard either in support or in opposition to the proposed settlement must ﬁle his or her written objection or comment with the Clerk of the United States District Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604 on or before _______ __, ____. The written objection or comment must be received in the Clerk’s ofﬁce on or before _______ __, ____. Written objections or comments will be considered whether or not the class member attends the hearing.
The foregoing references to the lawsuit and the settlement agreement are only summaries. The settlement agreement and all other papers ﬁled in this action may be examined and copied in the Ofﬁce of the Clerk, 219 South Dearborn Street, 20th ﬂoor, Chicago, Illinois between the hours of 9:00 a.m. and 4:30 p.m. Monday through Friday. Do not call either the Ofﬁce of the Clerk or Judge Kendall for information about the case.
Michael Dobbins Clerk, United States District Court

 </s> USCA7 Docket Sheet for 06-8015

http://pacer.ca7.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-8015&p...

General Docket
US Court of Appeals for the Seventh Circuit

Court of Appeals Docket #: 06-8015 Nsuit: 0 Sheriff Will County v. Calvin, Javar Appeal from: United States District Court

Filed: 4/24/06

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0752-1 : Ordering Judge: Virginia M. Kendall, Judge Date Filed: **/**/** Date order/judgment: **/**/** Date NOA filed: **/**/** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: null

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None

Docket as of April 26, 2006 11:03 pm

Page 1

06-8015 Sheriff Will County v. Calvin, Javar

SHERIFF WILL COUNTY Petitioner

Kevin J. Clancy FAX 312/364-1003 312/628-7855 Suite 1900 [COR LD NTC ret] LOWIS & GELLEN 200 W. Adams Street Chicago, IL 60606 USA

WILL COUNTY, ILLINOIS Petitioner

Kevin J. Clancy (See above) [COR LD NTC ret]

v.

JAVAR CALVIN Respondent

Kenneth N. Flaxman FAX 312/427-3930 312/427-3200 Suite 1240 [COR LD NTC ret] 200 S. Michigan Avenue Chicago, IL 60604 USA

WILLIAM V. MOORE Respondent

Kenneth N. Flaxman (See above) [COR LD NTC ret]

CHARLES DAVIS Respondent

Kenneth N. Flaxman (See above) [COR LD NTC ret]

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06-8015 Sheriff Will County v. Calvin, Javar
IN RE: SHERIFF WILL COUNTY and WILL COUNTY, ILLINOIS, Petitioners

Docket as of April 26, 2006 11:03 pm

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06-8015 Sheriff Will County v. Calvin, Javar

4/24/06

Petition for Permission to appeal pursuant to 28 U.S.C. 1292(b) docketed. [06-8015] [0-0] (03 C 3086) (amyd)

4/24/06

Filed Petitioner Sheriff Will County, Petitioner Will County IL docketing statement. [06-8015] [1979064-1] (amyd)

4/26/06

ORDER: Filed clerk's notice to Respondent Javar Calvin, Respondent William V. Moore, Respondent Charles Davis to file a response to petitioners' PETITION FOR PERMISSION TO APPEAL. [1979058-1] LAB [06-8015] Response due 5/10/06 for Charles Davis, for William V. Moore, for Javar Calvin. (hudk)

Docket as of April 26, 2006 11:03 pm

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 </s> USCA7 Docket Sheet for 06-2487

http://pacer.ca7.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-2487&p...

General Docket
US Court of Appeals for the Seventh Circuit

Court of Appeals Docket #: 06-2487 Nsuit: 3440 Oth Civil Rights-Fed. Question Calvin, Javar, et al v. Sheriff Will County, et al Appeal from: United States District Court

Filed: 5/25/06

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0752-1 : 03 C 3086 Ordering Judge: Virginia M. Kendall, Judge Court Reporter: April Metzler, Court Reporter Date Filed: 5/8/03 Date order/judgment: 4/14/06 Date NOA filed: 5/18/06 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Prior cases:

None

Current cases:

Lead

Member

Start

End

Related:

06- 8015 06- 2487 5/25/06 1/10/07

Docket as of January 25, 2007 11:02 pm

Page 1

06-2487 Calvin, Javar, et al v. Sheriff Will County, et al

JAVAR CALVIN Plaintiff - Appellee

Kenneth N. Flaxman FAX 312/427-3930 312/427-3200 Suite 1240 [COR LD NTC ret] 200 S. Michigan Avenue Chicago, IL 60604 USA

WILLIAM V. MOORE Plaintiff - Appellee

Kenneth N. Flaxman (See above) [COR LD NTC ret]

CHARLES DAVIS Plaintiff - Appellee

Kenneth N. Flaxman (See above) [COR LD NTC ret]

v.

SHERIFF WILL COUNTY Defendant - Appellant

Kevin J. Clancy FAX 312/364-1003 312/628-7855 Suite 1900 [COR LD NTC ret] LOWIS & GELLEN 200 W. Adams Street Chicago, IL 60606 USA

WILL COUNTY, ILLINOIS

Kevin J. Clancy

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Defendant - Appellant

(See above) [COR LD NTC ret]

Docket as of January 25, 2007 11:02 pm

Page 2

06-2487 Calvin, Javar, et al v. Sheriff Will County, et al
JAVAR CALVIN, WILLIAM V. MOORE and CHARLES DAVIS, Plaintiffs - Appellees
v.
SHERIFF OF WILL COUNTY and WILL COUNTY, ILLINOIS, Defendants - Appellants

Docket as of January 25, 2007 11:02 pm

Page 3

06-2487 Calvin, Javar, et al v. Sheriff Will County, et al

5/25/06

Private civil case docketed. [06-2487] [1979058-1] Transcript information sheet due 6/5/06. Docketing Statement due 5/25/06. (juli) [06-2487]

5/25/06

Case transferred from Miscellaneous Docket No. 06-8015. [06-2487, 06-8015] [1979058-1] (juli) [06-2487 06-8015]

5/25/06

[06-2487] ROA from No. Dist. of Il., E. Div. due 6/8/06. (juli) [06-2487]

5/25/06

ORDER: Pursuant to the court's order dated May 18, 2006, in case no. 06-8015, granting the petition for permission to appeal, briefing shall proceed as follows: [1979058-1] LAB [06-2487] Appellant's brief due 6/19/06 for Will County IL, for Sheriff Will County. Appellee's brief due 7/19/06 for Charles Davis, for William V. Moore, for Javar Calvin. Appellant's reply brief due 8/2/06 for Will County IL, for Sheriff Will County. (juli) [06-2487]

6/7/06

ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: [1979058-1] SCO [06-2487] Appellant's brief due 7/28/06 for Will County IL, for Sheriff Will County. Appellee's brief due 8/28/06 for Charles Davis, for William V. Moore, for Javar Calvin. Appellant's reply brief due 9/11/06 for Will County IL, for Sheriff Will County. (amyd) [06-2487]

6/9/06

ORDER: Appellant is directed to file the overdue Docketing Statement within 14 days from the date of this Rule to Show Cause. [1989566-1] LJ [06-2487] Docketing Statement response due 6/23/06 for Will County IL, for Sheriff Will County. (linj) [06-2487]

6/12/06

Filed Appellant Sheriff Will County in 06-2487, Appellant Will County IL in 06-2487 docketing statement. [06-2487] [1995506-1] (odea) [06-2487]

6/29/06

ORDER: Pursuant to Circuit Rule 33, briefing in this appeal is SUSPENDED pending further court order. [2000483-1] SCO [06-2487] (amyd) [06-2487]

8/29/06

ORDER: Pursuant to Circuit Rule 33, this appeal is STAYED and a telephonic STATUS conference is set for 10/17/06 at 9:30 a.m. The Settlement Conference will initiate the call.[2020284-1] SCO [06-2487] (hard) [06-2487]

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11/16/06

Notice to the District Court to transmit the record on appeal. [06-2487] [0-0] (stef) [06-2487]

11/30/06

Original record on appeal filed. Contents of record: 1 vol. pleadings. [06-2487] [2050281-1] (bria) [06-2487]

Docket as of January 25, 2007 11:02 pm

Page 4

06-2487 Calvin, Javar, et al v. Sheriff Will County, et al

1/8/07

Filed joint motion by Appellant Sheriff Will County in 06-2487, Appellant Will County IL in 06-2487, Appellee Javar Calvin in 06-2487, Appellee William V. Moore in 06-2487, Appellee Charles Davis in 06-2487 to dismiss case. [2062687-1] [06-2487] (hard) [06-2487]

1/10/07

ORDER: This cause is DISMISSED pursuant to F.R.A.P. 42(b). Mandate issued, record to be returned later. [06-2487] (mank) [06-2487]

1/24/07

Original record returned to the District Court. (Contents returned: 1 vol. pleadings.) [06-2487] [0-0] (cove) [06-2487]

1/25/07

Filed record receipt. [2068521-1] [06-2487] (josh) [06-2487]

Docket as of January 25, 2007 11:02 pm

Page 5

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Transaction Receipt

06/25/2007 12:28:19

PACER Login: hs0328

Client Code:

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Billable Pages: 5

Case Number:
Cost:

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 </s> CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?114473167541582-L_35...
CASREF, MASON, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:03-cv-03086

Calvin, et al v. Sheriff of Will Co, et al Assigned to: Honorable Virginia M. Kendall Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff Javar Calvin
Plaintiff William Virble Moore
Plaintiff Charles Davis

Date Filed: 05/08/2003 Date Terminated: 11/27/2006 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Kenneth N Flaxman Kenneth N. Flaxman, P.C. 200 South Michigan Avenue Suite 1240 Chicago, IL 60604-6107 (312) 427-3200 Email: knf@kenlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth N Flaxman (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth N Flaxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Sheriff of Will County

represented by Jeffrey S. Pavlovich Leahy, Eisenberg & Fraenkel, Ltd. 161 N. Clark Street #1325 Chicago, IL 60601 (312)368-4554 Email: jsp@lefltd.com TERMINATED: 01/05/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Daniel Robert Woods Leahy, Eisenberg & Fraenkel 161 North Clark Street Suite 1325 Chicago, IL 60601 (312) 368-4554 TERMINATED: 01/05/2005
Edward Joseph Leahy Leahy, Eisenberg & Fraenkel 161 North Clark Street Suite 1325 Chicago, IL 60601 (312) 368-4554 TERMINATED: 01/05/2005
Gerald Haberkorn Lowis & Gellen 200 West Adams Suite 1900 Chicago, IL 60606 (312) 364-2500 Email: geraldh@lowis-gellen.com ATTORNEY TO BE NOTICED
Joan Marie G. Kubalanza Lowis & Gellen 200 West Adams Suite 1900 Chicago, IL 60606 (312) 364-2500 TERMINATED: 01/05/2005
Kevin J. Clancy Lowis & Gellen 200 West Adams Suite 1900 Chicago, IL 60606 (312) 364-2500 Email: kclancy@lowis-gellen.com ATTORNEY TO BE NOTICED
Marsha K. Ross Haskell & Perrin 200 West Adams Street Suite 2005 Chicago, IL 60606-5284 (312) 781-9393

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Defendant Will County, Illinois

Martin W. McManaman Lowis & Gellen 200 West Adams Suite 1900 Chicago, IL 60606 (312) 364-2500 Email: martym@lowis-gellen.com ATTORNEY TO BE NOTICED
represented by Jeffrey S. Pavlovich (See above for address) TERMINATED: 01/05/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Robert Woods (See above for address) TERMINATED: 01/05/2005
Edward Joseph Leahy (See above for address) TERMINATED: 01/05/2005 ATTORNEY TO BE NOTICED
Gerald Haberkorn (See above for address) ATTORNEY TO BE NOTICED
Joan Marie G. Kubalanza (See above for address) TERMINATED: 01/05/2005
Kevin J. Clancy (See above for address) ATTORNEY TO BE NOTICED
Marsha K. Ross (See above for address)
Martin W. McManaman (See above for address) ATTORNEY TO BE NOTICED
Shannon F. O'Shea Kiesler & Berman 57 North Ottawa Street Suite 402 Joliet, IL 60431 (815) 723-2755

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TERMINATED: 01/05/2005

Date Filed 05/08/2003 05/08/2003 07/14/2003 07/14/2003 07/16/2003 07/31/2003 08/05/2003 08/05/2003 08/08/2003 08/08/2003 09/05/2003 09/05/2003 09/10/2003
10/01/2003

#

Docket Text

1 COMPLAINT; jury demand - Civil cover sheet - Appearance(s) of Kenneth N. Flaxman as attorney(s) for plaintiff (One original and one copy summons(es) issued.) ( Documents: 1-1 through 1-3) (hp) (Entered: 05/12/2003)
RECEIPT regarding payment of filing fee paid; on 5/8/03 in the amount of $150.00, receipt #10414464. (hp) (Entered: 05/12/2003)
2 ATTORNEY APPEARANCE for defendant by Jeffrey S. Pavlovich, Edward Joseph Leahy, Daniel Robert Woods; Notice. (aga) (Entered: 07/15/2003)
3 ANSWER by defendant to complaint [1-1]. (aga) (Entered: 07/15/2003)
SCHEDULE set on 7/16/03 by Hon. Robert W. Gettleman : Status hearing set to 9:00 8/5/03 . Status report due 7/31/03 . Courtroom deputy mailed notice (gds) (Entered: 07/16/2003)
4 JOINT STATUS REPORT by plaintiff and defendant; Notice (rmm) (Entered: 08/01/2003)
SCHEDULE set on 8/5/03 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 9/10/03 . Open court notice (gds) (Entered: 08/05/2003)
SCHEDULE set on 8/5/03 by Hon. Robert W. Gettleman : Plaintiff is granted leave to file an amended complaint by 8/12/03. Defendants' response is due by 9/5/03. Open court notice (gds) (Entered: 08/05/2003)
5 AMENDED COMPLAINT [1-1] by plaintiff Javar Calvin; jury demand; adding plaintiff William Virble Moore, defendant Will County, Illinois. (hp) (Entered: 08/11/2003)
ONE ORIGINAL SUMMONS and one copy issued as to defendant Will County, Illinois. (hp) (Entered: 08/11/2003)
6 ATTORNEY APPEARANCE for defendant Will Co IL by Jeffrey S. Pavlovich, Edward Joseph Leahy, Daniel Robert Woods, Shannon F. O'Shea; Notice. (hp) (Entered: 09/08/2003)
7 MOTION by defendants to dismiss plaintiffs' amended complaint (Attachment); Memorandum in support; Notice (hp) Modified on 09/15/2003 (Entered: 09/15/2003)
8 MINUTE ORDER of 9/10/03 by Hon. Robert W. Gettleman : Status hearing held and continued to 11/20/03 at 9:00 a.m. Defendant's motion to dismiss is denied without prejudice. [7-1] Defendant's answer is due by 10/01/03. No notice (hp) (Entered: 09/15/2003)
9 ANSWER by defendants to plaintiff's amended complaint [5-1]; Notice. (hp) (Entered: 10/02/2003)

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11/20/2003 01/03/2004 01/13/2004 02/12/2004 02/12/2004 02/12/2004
03/11/2004 03/12/2004 03/24/2004
03/25/2004 04/09/2004 05/03/2004 05/12/2004
06/25/2004 08/10/2004

SCHEDULE set on 11/20/03 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 1/13/04 . Open court notice (gds) (Entered: 11/20/2003)
19 ATTORNEY APPEARANCE for Sheriff of Will Co, Will Co IL by Gerald Haberkorn, Joan Marie G. Kubalanza, Kevin J. Clancy; Notice. (gcy) (Entered: 01/04/2005)
SCHEDULE set on 1/13/04 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 2/12/04 . Open court notice (gds) (Entered: 01/13/2004)
10 MOTION by plaintiffs to certify case as a class action (hp) (Entered: 02/13/2004)
11 SECOND AMENDED COMPLAINT [5-1] by plaintiff Javar Calvin, plaintiff William Virble Moore; adding plaintiff Charles Davis (hp) (Entered: 02/13/2004)
12 MINUTE ORDER of 2/12/04 by Hon. Robert W. Gettleman : Filed plaintiff's motion to certify case as a class action. [10-1] Answer brief to motion due 03/15/04. Reply to answer brief due 03/29/04. Status hearing held and continued to 04/20/04 at 9:00 a.m. Plaintiffs are granted leave to file second amended complaint. Mailed notice (hp) (Entered: 02/13/2004)
13 ANSWER by defendants to plaintiff's second amended complaint [11-1]; Notice (hp) (Entered: 03/12/2004)
14 MOTION by defendants Sheriff of Will Co, Will Co IL for enlargement of time to file answer brief to motion for certification ; Notice (las) (Entered: 03/25/2004)
15 MINUTE ORDER of 3/24/04 by Hon. Robert W. Gettleman : Status hearing reset to 5/4/04 at 9:00 a.m. Defendants' motion for enlargement of time to 3/25/04 to file answer brief to motion for certification is granted [14-1]. Plaintiffs' reply is due 4/9/04 [10-1]. Mailed notice (las) (Entered: 03/25/2004)
16 MEMORANDUM OF LAW by defendants in opposition to plaintiff's motion for class certification [10-1] (Attachments); Notice (cdy) (Entered: 03/26/2004)
17 REPLY MEMORANDUM by plaintiffs in support of motion to certify case as a class action [10-1] (Attachment). (air) (Entered: 04/13/2004)
SCHEDULE set on 5/3/04 by Hon. Robert W. Gettleman : Status hearing date of 5/4/04 is stricken. The Court will rule by mail. Telephone notice (gds) (Entered: 05/03/2004)
18 MINUTE ORDER of 5/12/04 by Hon. Robert W. Gettleman : Status hearing set for 05/26/04, at 9:00 a.m. Accordingly, plaintiffs' motion for class certification is granted with respect to subclasses II and III, and denied with respect to subclass I. [10-1] (Entered Memorandum Opinion and Order.) Notices mailed by judge's staff (hp) (Entered: 05/17/2004)
SCHEDULE set on 6/25/04 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 8/11/04 . Open court notice (gds) (Entered: 06/25/2004)
SCHEDULE set on 8/10/04 by Hon. Robert W. Gettleman : Status hearing reset to 9:00 9/15/04 . Telephone notice (gds) (Entered: 08/10/2004)

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09/15/2004 10/28/2004 12/20/2004 01/03/2005 01/05/2005
01/20/2005 02/11/2005 03/04/2005 03/15/2005
03/17/2005 03/23/2005
04/17/2005 04/17/2005

SCHEDULE set on 9/15/04 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 10/28/04 . Open court notice (gds) (Entered: 09/15/2004)
SCHEDULE set on 10/28/04 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 12/20/04 . Open court notice (gds) (Entered: 10/28/2004)
SCHEDULE set on 12/20/04 by Hon. Robert W. Gettleman : Status hearing held and continued to 9:00 1/5/05 . Open court notice (gds) (Entered: 12/20/2004)
20 MOTION by defendants for leave to substitute counsel Gerald Haberkorn, Joan Kubalanza and Martin McManaman in lieu of Jeffrey A. Pavlovich ; Notice. (hp) (Entered: 01/07/2005)
21 MINUTE ORDER of 1/5/05 by Hon. Robert W. Gettleman : Status hearing held and continued to 01/20/05 at 9:00 a.m. Defendants' motion for leave to substitute counsel is granted. Gerald Haberkorn, Joan Kubalanza and Martin McManaman are granted leave to appear as counsel for defendants in lieu of counsel who have heretofore appeared for defendants. [20-1] No notice (hp) (Entered: 01/07/2005)
22 MINUTE entry before Judge Robert W. Gettleman : Status hearing held on 1/20/2005. Settlement posture letters are due by 2/4/05, noon. Settlement Conference set for 2/9/2005 at 01:30 PM. [Open court notice) (gds, ) (Entered: 01/20/2005)
23 MINUTE entry before Judge Robert W. Gettleman : Settlement posture letters are due by 2/25/2005. Settlement Conference reset to 3/4/2005 at 11:00 AM. [Telephone notice] (gds, ) (Entered: 02/11/2005)
24 MINUTE entry before Judge Robert W. Gettleman : Settlement conference held on 3/4/2005. Settlement Conference set for 3/15/2005 at 10:00 AM. No notice (gds, ) (Entered: 03/08/2005)
26 MINUTE entry before Judge Robert W. Gettleman : Settlement conference held on 3/15/2005. Parties report they are unable to settle. Court approves class notice, to be mailed by 4/11/2005; opt-out deadline is 5/23/2005. Status hearing set for 5/31/2005, at 9:00 a.m. to report on response by class. Discovery ordered closed by 9/9/2005. Status hearing set for 9/13/2005 at 09:00 AM. Mailed notice (gds, ) (Entered: 03/22/2005)
25 EXECUTIVE COMMITTEE ORDER:Case referred to magistrate judge Michael T. Mason for discovery supervision and to conduct settlement conference. Signed by Executive Committee on 3/17/05. (lcw) (Entered: 03/22/2005)
27 MINUTE entry before Judge Michael T. Mason : This matter having been referred to Magistrate Judge Mason, an initial status hearing is set for 6/21/05 at 9:00 a.m. in courtroom 2214. The parties shall deliver a file-stamped courtesy copy of an initial status report providing the information required by the enclosed Order Setting Initial Status Report to the courtroom deputy, room 2220, by 6/16/05. Judicial staff mailed notice (kef, ) (Entered: 03/23/2005)
28 MOTION by Plaintiff Javar Calvin to reset mailing of class notice and to require defendant to bear costs of mailing (Flaxman, Kenneth) (Entered: 04/17/2005)
29 NOTICE of Motion by Kenneth N. Flaxman for presentment of motion to reset28 before Honorable Robert W. Gettleman on 4/21/2005 at 09:15 AM. (Flaxman,

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04/18/2005 04/18/2005
04/21/2005
05/16/2005 05/24/2005 06/15/2005 06/16/2005 06/16/2005 06/21/2005
07/14/2005 07/14/2005 07/14/2005 07/27/2005
07/28/2005

Kenneth) (Entered: 04/17/2005)
30 MOTION by Plaintiffs to reset dates for class notice and to require defendant to bear costs of mailing (gma, ) (Entered: 04/19/2005)
31 NOTICE of Motion by Kenneth N. Flaxman for presentment of MOTION by Plaintiffs to reset dates for class notice and to require defendant to bear costs of mailing 30 before Honorable Robert W. Gettleman on 4/21/2005 at 09:15 AM. (gma, ) (Entered: 04/19/2005)
32 MINUTE entry before Judge Robert W. Gettleman : Motion to reset dates for class notice28 is granted. Motion to require defendant to bear cost of mailing 30 is denied. Motion to reset 30 is granted. Notice to go out by 4/28/2005. Opt-out period to expire 6/9/2005.Status hearing reset to 6/16/2005 at 09:00 AM. Open court notice (gds, ) (Entered: 04/25/2005)
33 OPT OUT FORM as to plaintiff by Ronald Odam. (hp, ) (Entered: 05/20/2005)
34 OPT OUT FORM by Santiago Lopez (hp, ) (Entered: 05/26/2005)
35 Plaintiff's Report on Class Notice by Javar Calvin, William Virble Moore, Charles Davis (Flaxman, Kenneth) (Entered: 06/15/2005)
36 MINUTE entry before Judge Robert W. Gettleman : Status hearing held on 6/16/2005. No notice (gds, ) (Entered: 06/16/2005)
97 JOINT INITIAL STATUS Report by plaintiffs; Notice. (previously misplaced document) (rp, ) (Entered: 06/11/2007)
37 MINUTE entry before Judge Michael T. Mason : Magistrate Judge Status hearing held on 6/21/2005 and continued to 7/14/05 at 9:00 a.m. Parties are to propound written discovery by 7/1/05. Judicial staff mailed notice (kef, ) (Entered: 06/21/2005)
38 MINUTE entry before Judge Michael T. Mason : Magistrate Judge Status hearing held on 7/14/2005 and continued to 8/16/05 at 9:00 a.m. Judicial staff mailed notice (kef, ) (Entered: 07/14/2005)
39 MOTION by Plaintiffs Javar Calvin, William Virble Moore, Charles Davis to bifurcate discovery (Flaxman, Kenneth) (Entered: 07/14/2005)
40 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to bifurcate39 before Honorable Robert W. Gettleman on 7/20/2005 at 09:15 AM. (Flaxman, Kenneth) (Entered: 07/14/2005)
41 MEMORANDUM by Javar Calvin, William Virble Moore, Charles Davis, Javar Calvin, William Virble Moore, Charles Davis in support of motion to stay discovery from individual class members pending cross-motions for summary judgment on liability (Flaxman, Kenneth) (Entered: 07/27/2005)
42 MINUTE entry before Judge Robert W. Gettleman : Motion hearing held on 7/28/2005 regarding motion to bifurcate39. Plaintiff's motion to stay discovery due by 7/27/2005. Responses due by 8/3/2005. Replies due by 8/10/2005. Ruling before Honorable Robert W. Gettleman set on 8/17/2005 at 11:00 AM. No notice (gds, ) (Entered: 07/28/2005)

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08/02/2005 08/03/2005 08/10/2005 08/17/2005
08/31/2005 08/31/2005 08/31/2005 09/27/2005 09/27/2005 10/06/2005
10/13/2005 10/13/2005 10/13/2005 10/13/2005

43 MINUTE entry before Judge Michael T. Mason : Status hearing set for 8/16/05 at 9:00 a.m. is stricken. Judicial staff mailed notice (kef, ) (Entered: 08/02/2005)
44 RESPONSE by defendants Sheriff of Will County, Will County, Illinois to plaintiffs' motion to stay discovery from individual class members 39 ; Notice of filing. (hp, ) (Entered: 08/08/2005)
45 REPLY Memorandum in support of motion to stay discovery from individual class members, etc. (Flaxman, Kenneth) (Entered: 08/10/2005)
49 MINUTE entry before Judge Robert W. Gettleman : Plaintiff's motion to bifurcate 39discovery is granted in part and denied in part. Discovery will be bifurcated between liability and damages subject to request by plaintiffs under R. 56(f). Plaintiff's motion for summary judgment is due by 8/31/2005. Response is due by 9/28/2005. Status hearing held on 8/17/2005 and continued to 10/6/2005 at 10:00 AM. No notice (gds, ) (Entered: 09/01/2005)
46 MOTION by Plaintiffs Javar Calvin, William Virble Moore, Charles Davis for partial summary judgment (Flaxman, Kenneth) (Entered: 08/31/2005)
47 pursuant to Local Rule 56.1 STATEMENT by Javar Calvin, William Virble Moore, Charles Davis (Flaxman, Kenneth) (Entered: 08/31/2005)
48 MEMORANDUM by Javar Calvin, William Virble Moore, Charles Davis in Support of motion for partial summary judgment46 (Flaxman, Kenneth) (Entered: 08/31/2005)
50 MOTION by Defendants Sheriff of Will County, Will County, Illinois for extension of time to file response/reply to Plaintiffs' Motion for Summary Judgment (Clancy, Kevin) (Entered: 09/27/2005)
51 NOTICE of Motion by Kevin J. Clancy for presentment of motion for extension of time to file response/reply50 before Honorable Robert W. Gettleman on 10/6/2005 at 10:00 AM. (Clancy, Kevin) (Entered: 09/27/2005)
52 MINUTE entry before Judge Robert W. Gettleman : Motion for extension of time to file response regarding MOTION by Plaintiffs Javar Calvin, William Virble Moore, Charles Davis for partial summary judgment46 50 is granted. Responses due by 10/13/2005. Status hearing held and continued to 10/19/2005, at 10:30 a.m. Open court notice (gds, ) (Entered: 10/11/2005)
53 MOTION by Defendants Sheriff of Will County, Will County, Illinois to strike portions of Plaintiffs' Rule 56.1 Statement (Clancy, Kevin) (Entered: 10/13/2005)
54 NOTICE of Motion by Kevin J. Clancy for presentment of motion to strike53 before Honorable Robert W. Gettleman on 10/19/2005 at 10:30 AM. (Clancy, Kevin) (Entered: 10/13/2005)
55 RESPONSE by Defendants Sheriff of Will County, Will County, Illinois to Plaintiffs' LR 56.1 Statement (Clancy, Kevin) (Entered: 10/13/2005)
56 MEMORANDUM by Sheriff of Will County, Will County, Illinois in Opposition to Plaintiffs' Motion for Summary Judgment (Clancy, Kevin) (Entered: 10/13/2005)

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10/14/2005 10/19/2005
10/26/2005 12/16/2005
12/16/2005 12/20/2005 01/20/2006 01/20/2006 01/23/2006 01/23/2006 01/24/2006 01/24/2006

57 MINUTE entry before Judge Michael T. Mason : All matters relating to the referral of this case having been resolved, the referral is closed and the case is returned to the assigned judge. Judge Michael T. Mason no longer referred to the case. (kef, ) (Entered: 10/14/2005)
59 MINUTE entry before Judge Robert W. Gettleman : Set deadlines/hearing as to motion for partial summary judgment46:, Status hearing held on 10/19/2005. Replies due by 10/26/2005. Motion to strike is continued generally. Status hearing continued to 12/20/2005 at 09:00 AM. Open court notice (gds, ) (Entered: 11/02/2005)
58 REPLY memorandum by Javar Calvin, William Virble Moore, Charles Davisin Support of motion for summary judgment on liability 46 (Flaxman, Kenneth) Modified on 10/27/2005 (rbf, ). (Entered: 10/26/2005)
61 MINUTE entry before Judge Robert W. Gettleman: Memorandum opinion and order entered. Accordingly, plaintiffs' motion for partial summary judgment 46 is granted as to liability as to subclass I and subclass II. Defendant Sheriff's motion to strike portions of plaintiffs' L.R. 56.1 statement 53 is denied as moot. (For further detail see separate order) Mailed (vmj, ) (Entered: 12/23/2005)
62 MEMORANDUM Opinion and Order Signed by Judge Robert W. Gettleman on 12/16/2005(vmj, ) (Entered: 12/23/2005)
60 MINUTE entry before Judge Robert W. Gettleman : Status hearing held on 12/20/2005 Status hearing set for 2/1/2006 at 09:00 AM. Mailed notice (gds, ) (Entered: 12/20/2005)
63 MOTION by Defendants Sheriff of Will County, Will County, Illinois to amend/correct the Court's Memorandum Opinion and Order of December 16, 2005 to Include Certification for Interlocutory Appeal (Clancy, Kevin) (Entered: 01/20/2006)
64 NOTICE of Motion by Kevin J. Clancy for presentment of motion to amend/correct63 before Honorable Robert W. Gettleman on 2/1/2006 at 09:00 AM. (Clancy, Kevin) (Entered: 01/20/2006)
65 STATEMENT in Support of Motion to Amend the Memorandum Opinion and Order of December 16, 2005 to Include Certification for Interlocutory Appeal (Clancy, Kevin) (Entered: 01/23/2006)
68 EXECUTIVE COMMITTEE ORDER: Case reassigned to Judge Virginia M. Kendall for all further proceedings. Signed by Executive Committee on 1/23/06. Mailed notice(cem, ) (Entered: 01/26/2006)
66 MINUTE entry before Judge Robert W. Gettleman : This case is being reassigned to the calendar of Judge Kendall. Status hearing date of 2/1/2006 before Judge Gettleman is stricken. Mailed notice (gds, ) (Entered: 01/24/2006)
67 MINUTE entry before Judge Virginia M. Kendall : Initial status hearing set for 2/8/06 at 11:00 a.m. before Judge Kendall in Courtroom 1719. By 2/1/06, counsel are directed to confer, prepare, and file a Joint Status Report as directed in the Order Requiring Status Report and Setting Status Hearing for Newly Assigned Cases to the Calendar of Judge Kendall. Mailed notice (gmr, ) (Entered: 01/25/2006)

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01/26/2006 01/30/2006 02/02/2006 02/09/2006 02/16/2006 03/02/2006 04/14/2006
04/14/2006 05/19/2006
05/31/2006 06/12/2006 09/15/2006

69 Amended NOTICE of Motion by Kevin J. Clancy for presentment of motion to amend/correct63 (Clancy, Kevin) (Entered: 01/26/2006)
70 Amended NOTICE of Motion by Kevin J. Clancy for presentment of motion to amend/correct63 before Honorable Virginia M. Kendall on 2/2/2006 at 09:00 AM. (Clancy, Kevin) (Entered: 01/30/2006)
71 MINUTE entry before Judge Virginia M. Kendall : Motion hearing held. Briefing schedule set regarding motion to amend/correct 63 as follows: Response by 2/9/06. Reply by 2/16/06. Status hearing reset to 3/2/2006 at 09:00 AM. Mailed notice (gmr, ) (Entered: 02/02/2006)
72 MEMORANDUM by Javar Calvin, William Virble Moore, Charles Davis in Opposition to motion to amend/correct63 and certify for interlocutory appeal (Flaxman, Kenneth) (Entered: 02/09/2006)
73 REPLY by Sheriff of Will County, Will County, Illinoisin Support of MOTION by Defendants Sheriff of Will County, Will County, Illinois to amend/correct the Court's Memorandum Opinion and Order of December 16, 2005 to Include Certification for Interlocutory Appeal63 (Clancy, Kevin) (Entered: 02/16/2006)
74 MINUTE entry before Judge Virginia M. Kendall : Status hearing held. Ruling on pending motion(s) will be by mail. Mailed notice (gmr, ) (Entered: 03/02/2006)
75 MINUTE entry before Judge Virginia M. Kendall: For the reasons stated in the Memorandum Opinion and Order, defendants' motion to amend the memorandudm opinion and order dated 12/16/05 to include Certificate for Interlocutory Appeal 63 is granted. Accordingly, the court amends the order of 12/16/05 62 to permit interlocutory appeal pursuant to 28 U.S.C. 1292(b). Mailed (vmj, ) (Entered: 04/17/2006)
76 MEMORANDUM Opinion and Order signed by Judge Virginia M. Kendall on 4/14/2006(vmj, ) (Entered: 04/17/2006)
77 CERTIFIED copy of order from the USCA 7th Circuit dated 5/18/06, Appeal # 06-8015: The following are before the court: 1. Petition for permission to appeal, filed on 4/24/06, by counsel for the petitioners. 2. Answer to petition for permission to appeal, filed on 5/10/06, by counsel for the respondent. It is ordered that #1 is granted. Petitioners shall pay the required appellate fees to the clerk of the district court within ten days from the entry of this order purusant to Fed.R.App.P. 5(d)(1). Once the district court notifies this court that the fees have been paid, the appeal will be entered on this court's general docket and briefing will be set. (vmj, ) (Entered: 05/25/2006)
78 ACKNOWLEDGEMENT of receipt of short record on appeal; USCA Case no. 06-2487. (mjc, ) (Entered: 06/02/2006)
79 Circuit Rule 10(a) Request for Inclusion of Materials in Record on Appeal by Sheriff of Will County, Will County, Illinois (Clancy, Kevin) (Entered: 06/12/2006)
80 MOTION by Plaintiffs Javar Calvin, William Virble Moore, Charles Davis, Defendants Sheriff of Will County, Will County, Illinois to approve consent judgment (preliminary approval of class action settlement) (Flaxman, Kenneth)

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09/15/2006 09/20/2006
11/16/2006 11/17/2006 11/20/2006
11/27/2006 11/27/2006 11/30/2006 01/11/2007
01/11/2007 01/24/2007 04/06/2007 04/06/2007 04/11/2007

(Entered: 09/15/2006)
81 NOTICE of Motion by Kenneth N Flaxman for presentment of motion to approve consent judgment80 before Honorable Virginia M. Kendall on 9/20/2006 at 09:00 AM. (Flaxman, Kenneth) (Entered: 09/15/2006)
82 MINUTE entry before Judge Virginia M. Kendall : Motion hearing held. Joint Motion for preliminary approval of class action settlement 80 is granted. Fairness hearing set for 11/17/2006 at 09:00 AM. Class members shall have until 11/10/2006 to object to the proposed settlement. Mailed notice (gmr, ) (Entered: 09/21/2006)
83 MEMORANDUM by Javar Calvin, William Virble Moore, Charles Davis in Support of Approval of Proposed Settlement (Flaxman, Kenneth) (Entered: 11/16/2006)
84 MINUTE entry before Judge Virginia M. Kendall : Fairness hearing held. The parties shall provide the Court with a draft final approval order for review and entry. Mailed notice (gmr, ) (Entered: 11/17/2006)
85 NOTICE to transmit the record from the USCA - 7th Circuit dated 11/16/06 re: appeal no. 06-2487: Pursuant to Circuit Rule 11(a), the entire record is to be transmitted to this court immediately for use in the decision in the above named cause. (vmj, ) (Entered: 11/22/2006)
87 MINUTE entry before Judge Virginia M. Kendall : Enter Order Approving Class Settlement. Mailed (vmj, ) (Entered: 11/28/2006)
88 ORDER Approving Class Settlement Signed by Judge Virginia M. Kendall on 11/27/2006(vmj, ) (Entered: 11/28/2006)
89 RECEIVED long record USCA docket no 06-2487 on 11/28/06. (cdh, ) (Entered: 11/30/2006)
90 LETTER from USCA - 7th Circuit dated 1/10/07, Appeal No. 06-2487: Upon consideration of the motion to dismiss filed by the parties on 1/8/07, it is ordered that this cause is dismissed, pursuant to FRAP 42(b). (vmj, ) (Entered: 01/16/2007)
91 NOTICE of Issuance of Mandate from the USCA - 7th Circuit dated 1/10/07, Appeal No. 06-2487 (vmj, ) (Entered: 01/16/2007)
92 NOTICE of Record Return from the Seventh Circuit returning in USCA no. 06-2487 consisting of 1 vol of pleadings. (vmj, ) (Entered: 01/26/2007)
93 MOTION by Plaintiffs Javar Calvin, William Virble Moore, Charles Davisto establish procedure for final distribution of settlement funds (Flaxman, Kenneth) (Entered: 04/06/2007)
94 NOTICE of Motion by Kenneth N Flaxman for presentment of motion for miscellaneous relief93 before Honorable Virginia M. Kendall on 4/11/2007 at 09:00 AM. (Flaxman, Kenneth) (Entered: 04/06/2007)
95 MINUTE entry before Judge Virginia M. Kendall :Motion hearing held. Plaintiffs' motion to establish procedure for final distribution of settlement funds 93 is granted. Enter Order Establishing Procedure for Final Distribution of

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Settlement Funds. Mailed notice (gmr, ) (Entered: 04/11/2007)
96 ORDER Establishing Procedure for Final Distribution of Settlement Funds. Mailed notice(gmr, ) (Entered: 04/11/2007)

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[CONTENT] May 8, 2003 | 42 | 1983 | the U.S. District Court | the Northern District | Illinois | Fourth | Fourteenth Amendment | the Sheriff of Will County | Will County Jail ||| August 8, 2003 | second | Will County | Illinois ||| Jail ||| Specifically, Plaintiffs | Fourth | Fourteenth Amendment | two | 1 | Will County Jail | 2 | the Will County Jail |||  ||| second | third | February 12, 2004 ||| May 12, 2004 | the District Court | Robert W. Gettleman | two | 1 | between May 8, 2001 | the Will County Jail | 2 | between May 8, 2001 | Will County Jail | Sheriff ||| third ||| Calvin v. Sheriff | Will County | 2004 | 1125922 | 2004 | U.S. |||  ||| May 12, 2004 |||  ||| December 16, 2005 | the District Court | Gettleman | 1 | 2 | Fourth Amendment ||| Calvin v. Sheriff | Will County | 405 F.Supp.2d 933 ||| Dec 16, 2005 ||| April 14, 2006 | Court | Defendants | December 16 ||| Calvin v. Sheriff | Will County | 2006 | 1005141 | 2006 | U.S. |||  ||| 14, 2006 ||| the U.S. Court of Appeals | the Seventh Circuit ||| the Settlement Agreement | Will County | $2.15 million ||| 40% ||| three | 25,000 |||  ||| about $700 ||| September 20, 2006 | the District Court | Virginia M. Kendall ||| November 17, 2006 | Court | November 27 | 2006 |||  |||  [SUMMARY] On May 8, 2003, an individual mistakenly arrested on an erroneous warrant filed a 42 U.S.C. § 1983 lawsuit in the U.S. District Court for the Northern District of Illinois, alleging that his Fourth and Fourteenth Amendment rights had been violated by the Sheriff of Will County in that he had been unlawfully detained at the Will County Jail after being ordered released by a judge.  On August 8, 2003, an amended complaint was filed, adding a second named plaintiff and adding Will County, Illinois as a defendant.  The amended complaint also added allegations challenging the Jail's shackling and strip search policies and seeking class certification.  Specifically, Plaintiffs alleged that the Sheriff's "strip search/ shackling" policy deprived them of their Fourth and Fourteenth Amendment rights and sought certification of two subclasses: (1) all persons who were handcuffed, shackled, and strip searched at the Will County Jail after being ordered to be immediately released by a judge; and (2) all individuals who were held at the Will County Jail on a recalled or already executed warrant issued after they complained that they were being wrongfully held in custody.  Plaintiffs sought class certification, declaratory judgment, compensatory damages, and costs.  A second amended complaint adding a third named plaintiff was filed on February 12, 2004.

On May 12, 2004, the District Court (Judge Robert W. Gettleman) certified the case as a class action, establishing two subclasses: (1) all individuals who, between May 8, 2001 and the date of the judgment, were arrested for failure to appear in a misdemeanor or traffic case and, who, upon arrival at the Will County Jail, were strip searched without any individualized finding of reasonable suspicion or probable cause that he or she was concealing contraband or weapons (the "post-arrest strip search" subclass); and (2) all traffic or misdemeanor arrestees who, between May 8, 2001 and the date of the judgment, became entitled to release from the Will County Jail, and who, while being processed out of the Sheriff's custody, were strip searched without any individualized finding of reasonable suspicion that he or she was concealing contraband or weapons (the "post-release strip search" subclass).  The court refused to certify a third subclass consisting of those arrested on "bad warrants" because it found that the numerosity requirement had not been met.  Calvin v. Sheriff of Will County, 2004 WL 1125922, 2004 U.S. Dist. LEXIS 8717 (N.D.Ill. May 12, 2004). 

Plaintiffs subsequently moved for summary judgment.  On December 16, 2005, the District Court (Judge Gettleman) granted the Plaintiffs' motion, holding that both (1) the blanket policy of strip searching persons arrested for failure to appear in misdemeanor or traffic cases, and (2) the blanket policy of strip searching persons who were returned to jail for processing after being ordered released on traffic or misdemeanor charges violated Fourth Amendment.  Calvin v. Sheriff of Will County, 405 F.Supp.2d 933 (N.D.Ill. Dec 16, 2005).  On April 14, 2006, the Court, at the request of Defendants, amended its December 16 order to make it immediately appealable.  Calvin v. Sheriff of Will County, 2006 WL 1005141, 2006 U.S. Dist. LEXIS 27341 (N.D.Ill. Apr 14, 2006).  

While the case was on interlocutory appeal to the U.S. Court of Appeals for the Seventh Circuit, the parties settled the lawsuit.  Under the Settlement Agreement, Will County agreed to pay $2.15 million into a common fund to settle all claims for damages, expenses, and attorneys' fees.  Attorneys' fees and expenses were to be paid from the fund and were not to exceed 40% of the total payout.  Each of the three named plaintiffs was to receive $25,000 as an incentive payment.  The remainder of the fund would be used to pay class claims.  It was anticipated that each class member would receive about $700.

On September 20, 2006, the District Court (Judge Virginia M. Kendall) preliminarily approved the settlement.  After holding a November 17, 2006 fairness hearing, the Court issued a November 27, 2006 order finally approving the settlement.  Subsequent proceedings established the procedure for the final distribution of settlement funds.  No further proceedings are apparent from the docket.

