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November 22, 1993

KEITH RUEHMAN, et al., Plaintiffs,
VILLAGE OF PALOS PARK, et al., Defendants.

The opinion of the court was delivered by: WILLIAM T. HART

 Plaintiffs in this case claimed that they were named in arrest warrants that have been quashed or recalled but are still listed as active on municipal and state computer data banks. The crux of plaintiffs' federal claims are that plaintiffs' Fourth Amendment *fn1" or due process rights have been violated in that defendants have failed to adequately maintain the computer networks so as to prevent the arrest and detention of persons on warrants that are no longer valid. Plaintiffs originally sought to represent a class and requested both damages and injunctive relief. This case has involved at least 11 plaintiffs and 25 defendants. Following rulings on various motions, settlement of some disputes, amendments to the complaint, the withdrawal of some claims, and the withdrawal of the claim for class certification, the number of remaining parties is substantially less. *fn2" The remaining plaintiffs are Keith Ruehman, Alan Miller, Joseph Brown, Michael Curtan, Dean Hyde, and Jean Sitar. The remaining defendants are the Clerk of the Circuit Court of Cook County (Aurelia Pucinski), the Village of Dolton, the Village of La Grange, the City of Chicago, and the Sheriff of Cook County (Michael Sheahan). Only official capacity claims remain and the remaining claims against one defendant is only for injunctive relief. Various motions are pending, most of which are motions for summary judgment.

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which the nonmovant will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).


 In Ruehman I, at 12-17 (*5-7), it was held that Pucinski was qualifiedly immune from any damages claim against her in her individual capacity. In Ruehman II, at 4-5 (*2), it was held that the official capacity damages claims against Pucinski could not be pursued because the Clerk of the Circuit Court was not a suable entity under 42 U.S.C. § 1983. See Will v. Michigan Department of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). *fn3" Plaintiffs were not precluded from pursuing their injunctive claims against Pucinski, those claims having previously been held to involve a justiciable case or controversy for those plaintiffs who still had recalled warrants listed as active on a computer system. See Ruehman I, at 29-30 (*11-12).

 Pucinski moves for summary judgment on the ground that plaintiffs lack standing to seek injunctive relief because none of them currently have any recalled warrants that are incorrectly listed as active on one of the computer systems. Plaintiffs do not dispute this factual contention and concede that they no longer have standing to seek injunctive relief. Plaintiffs, however, argue that they have standing to amend their complaint and seek declaratory relief.

 Just as plaintiffs lack standing to seek injunctive relief, they also lack standing to seek declaratory relief. Robinson v. City of Chicago, 868 F.2d 959, 967 (7th Cir. 1989), cert. dismissed, 493 U.S. 1012, 107 L. Ed. 2d 729, 110 S. Ct. 708 (1989), cert. denied, 493 U.S. 1035, 110 S. Ct. 756, 107 L. Ed. 2d 773 (1990). The "capable of repetition, yet evading review" exception does not apply where there is no expectation that these same plaintiffs are the ones against whom any repeated violation will be committed. Id. Also, any repeated violations will not necessarily evade review because a class potentially could be certified that would be unlikely to lose its standing once certified. See 868 F.2d at 967-68; Ruehman I, at 29-30 (*11-12) (holding that, as of that time, plaintiffs had standing to pursue injunctive relief); Hvorcik v. Sheahan, 1993 U.S. Dist. LEXIS 12406, 1993 WL 348569 *1 (N.D. Ill. Sept. 8, 1993) (certifying the same class as was originally sought to be certified in Ruehman, but with only the sheriff as a defendant). *fn4" The remaining claims against Pucinski will be dismissed as moot. *fn5" Pucinski will be dismissed from the case.


 Three plaintiffs still have pending claims against Sheriff Sheahan in his official capacity: Ruehman, Miller, and Sitar. Each of these plaintiffs have moved for summary judgment as to liability against the Sheriff and the Sheriff has moved for summary judgment to dismiss the claims against him by these plaintiffs.

 As is discussed in § I, supra, any claim for injunctive or declaratory relief is now moot in that these plaintiffs no longer have recalled warrants incorrectly listed as active on a computer system. The claim for injunctive relief against the Sheriff will be denied as moot.

 A. Eleventh Amendment

 In reliance on Scott v. O'Grady, 975 F.2d 366, 371-72 (7th Cir. 1992), cert. denied, 124 L. Ed. 2d 643, 113 S. Ct. 2421 (1993), Sheahan contends that the damages claims are barred by the Eleventh Amendment in that the Sheriff is acting as an agent of the state when processing warrants, which are orders of the state court. This argument has already been rejected twice. See Ruehman I, at 18 (*7); Ruehman II, at 5-6 (*2). Another judge in this district has also rejected the same argument made by the Sheriff in another case involving an arrest on a recalled warrant. Hvorcik v. Sheahan, 1993 U.S. Dist. LEXIS 7476, 1993 WL 192948 *2 (N.D. Ill. June 3, 1993) ("Quite unlike the action implicated in Scott, Sheahan's activities that are the gravamen of the [Second Amended Complaint]--those relating to the establishment and maintenance of records as to outstanding warrants--do not represent the purely ministerial enforcement of the orders of the state judiciary (they are not the fulfillment of a 'statutory, non-discretionary duty' as Scott, 975 F.2d at 371 described what was at issue there).") If the Sheriff's alleged misconduct was merely the enforcement of a warrant, then the holding of Scott would likely apply to bar such a claim since that would likely be construed as the enforcement of the court's order to arrest a particular person. The alleged misconduct in this case, however, is the failure by the Sheriff to properly track which warrants are still pending and which warrants have been recalled. That is not the enforcement of a state court warrant of arrest.

 The Sheriff also relies upon an August 29, 1983 memorandum issued by the presiding judge of the Sixth Municipal District. *fn6" That memorandum sets forth certain procedures for Sheriff's employees in the warrants office and Sheriff's employees who provide courtroom services. It is disputed whether this 1983 memorandum was in effect in 1991 when plaintiff Miller was arrested on a recalled warrant. In any event, the memorandum is not an order of the court. It is clear from the memorandum that it is merely reporting the procedures that the various agencies involved have agreed to implement in light of recommendations made by the Sixth Municipal warrant study committee. This memorandum does not convert any undertaking by the Sheriff to follow these procedures into the implementation of a court order. Additionally, the memorandum still leaves to the Sheriff's discretion the actual implementation of the computer tracking system and other procedures. General Order No. 8-89, which the Sheriff also relies upon, provides that police officers are to check with the Warrant Division prior to bringing prisoners for bond hearings and that the Warrant Division will complete a form noting any outstanding warrants. The order states nothing about tracking warrants or quash and recall orders and says nothing about the computer system. General Order No. 8-89 does not in any way control or limit the Sheriff's discretion in setting up a warrant tracking system. The damages claims against the Sheriff are not barred by the Eleventh Amendment.

 B. Sheriff's Practices

 In his motion for summary judgment, the Sheriff asserts that the evidence does not support the existence of any unconstitutional custom or policy. In neither its supporting brief nor Local Rule 12(m) Statement of Material Facts, does defendant point to any of the facts relevant to this issue. Instead, the primary focus of his argument is the lack of a causal relationship between any custom or policy and each plaintiff's arrest. Thus, defendant does not satisfy his initial summary judgment burden of "directing the . . . court to . . . the available evidence that pertains to each" issue. Selan, 969 F.2d at 564. Accord Celotex, 477 U.S. at 323. The issue of the nonexistence of a custom or policy is not raised by the Sheriff's motion for summary judgment.

 In response to plaintiffs' motions for summary judgment, the Sheriff again argues that the facts do not support the element of causation. While not expressly conceding that it is uncontested that the Sheriff had deficient and deliberately indifferent procedures for tracking warrants, the Sheriff's brief contains no argument to the contrary. The Sheriff's response to plaintiffs' Local Rule 12(m) Statements presents disputes as to some of the factual details, but does not contest the general description of the practices of the Sheriff's office. Set forth below in general terms are the practices of the Sheriff that are supported by the submission of plaintiffs, with any factual disputes presented by the Sheriff and supported by adequate submissions resolved in the Sheriff's favor. *fn7"

 There are two computer systems for tracking warrants that are pertinent to plaintiffs' claims against the Sheriff. The Sheriff maintains the Cook County Sheriff's Police Warrant Computer System ("SPWA"). The state maintains the Illinois State Police Law Enforcement Data System ("LEADS"). Police departments throughout the state have access to LEADS, but only the Sheriff has direct access to SPWA. Other police departments may make telephone inquiries regarding SPWA listings. The Circuit Court Clerk also has a computerized system for tracking warrants. The Sheriff and other police departments do not have direct access to the Clerk's system.

 Deputy sheriffs are assigned to the courtrooms of Circuit Court judges. The deputy sheriffs provide security for the courtroom. The deputy sheriffs are not responsible for providing the Sheriff's office with information about court orders entered in the courtrooms to which the deputies are assigned. The Sheriff's Fugitive Warrants Division ("FWD") is the division of the Sheriff that is responsible for tracking the status of warrants. One or more warrant clerks are assigned to the various municipal districts of the Circuit Court of Cook County. The warrant clerks are responsible for entering information on the SPWA and for also reporting certain information to LEADS.

 It takes two to five days for the quash and recall order to be forwarded to the Sheriff's basket for pickup. Most commonly it takes three days. After being picked up by the Sheriff's office, it is the responsibility of the Sheriff's warrant clerks to enter the recall order into SPWA. The Sheriff also maintains files with copies of active warrant orders.

 There are approximately 125,000 active warrants listed on SPWA. It is estimated that 50 to 75 per cent of these are from traffic cases. Each month, the Clerk provides the Sheriff with a list of all quash and recall orders entered in non-traffic cases that month. Since 1988, the Sheriff has compared the Clerk's monthly list to the list of active warrants on SPWA. Each month, 49 to 100 non-traffic warrants are found that are listed as active despite having been quashed. The SPWA is then updated to reflect that the warrant has been quashed. No similar cross-checking is done with traffic warrants because the Clerk does not provide a report for traffic warrants.

 It is known that the Clerk's office frequently fails to forward quash and recall orders to the Sheriff. Other than the cross-checking from the quash and recall report for non-traffic warrants, *fn8" nothing is done to remedy this known problem. The deputy sheriffs assigned for courtroom security are not required to report to the warrant clerks about quash and recall orders. No attempt is made to compare the State's Attorney's records of pending warrants with those listed on the SPWA. Except for the cross-checking described, the Sheriff's FWD does not clear a warrant unless it receives its copies of the quash and recall order from the Clerk.

 The FWD is headquartered in the Criminal Courts Building located at 26th and California in Chicago. There are no FWD supervisory personnel at the suburban courthouses and the supervisors rarely visit the warrant clerks assigned to suburban courthouses. The warrant clerks receive no special training from the FWD and there is no training manual for the SPWA system. There are no written procedures of the FWD as to how quash and recall orders are to be received from the Clerk's office. The work of warrant clerks is not reviewed or audited and there is no formal review process for evaluation of warrant clerks' SPWA work. The Illinois State Police provide LEADS training for at least some warrant clerks and certify clerks to work on LEADS.

 The Sixth Municipal District has the largest volume of warrants of the suburban districts. In July 1989, one of the Sixth District's two warrant clerks was on sick leave. The other clerk had been on the job for only six months at that point in time. She remained as the only Sixth District warrant clerk until October 1989. During that time period, the Sixth District had as many as 1500 warrants waiting to be entered into the computer. At least some warrants were being entered into SPWA as new warrants after the quash and recall orders had already been entered.

 Sheriff warrant clerks are responsible for entering warrants and recall information onto LEADS for felonies, violations of probation, violations of conditional discharge, and violation of supervision. Such information for misdemeanor and traffic cases can only be entered by the law enforcement agency issuing the warrant. The Sheriff cannot directly remove such warrants from LEADS. The other agencies rely on the Sheriff forwarding information about court orders issuing and recalling warrants. *fn9" When warrants in such cases are recalled, the Sheriff makes a computer printout indicating the warrant has been recalled and places the printout in a box for pickup by the issuing agency. Agencies often delayed in picking up copies of cancelled warrants or the cancelled warrants were misdirected. In 1992, the Sheriff began keeping records of when the other agencies picked up orders and had the other agencies sign acknowledgements that the warrants had been picked up.

 Prior to 1988, reports of outstanding warrants listed on SPWA would be sent out to various police departments. The police departments would report some incorrect information to the Sheriff and incorrectly listed warrants would be removed from SPWA. Beginning in 1988, such reports were sent only to police departments that specifically requested them.

 The LEADS Manual provides that local agencies should validate their records of warrants listed on LEADS, including comparing their records with those of the State's Attorney or Circuit Court Clerk. In 1988, the Illinois State Police conducted an audit of FWD procedures related to LEADS. Compliance with LEADS ...

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