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December 7, 1994

MICHAEL SHEAHAN, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

 Sheriff Michael Sheahan seeks dismissal of a portion of the Fourth Amended Complaint ("FAC") in this class action, a pleading that seeks (1) to add named plaintiffs (including Scott Zuziak, "Zuziak"), (2) to include a prayer for injunctive relief and (3) to extend the class period in light of the Sheriff's failure to address the problems that first triggered this lawsuit. For the reasons stated in this memorandum opinion and order, Sheriff Sheahan's motion--which specifically targets FAC Count I, the claim that asks for injunctive relief--is denied.

 From the very beginning the plaintiff class has claimed that the Sheriff has infringed the constitutional rights of its members--that his inaction in failing to take certain obvious and readily available steps to minimize the known presence of many invalid warrants in his computerized record system violates the constitutional standard of "deliberate indifference." This Court's March 24, 1994 memorandum opinion and order (the "Opinion," 847 F. Supp. 1414 *fn1" ) granted summary judgment as to liability in favor of the plaintiff class, explaining in detail why the class claims were viable under Section 1983. *fn2"

 This Court promptly expressed itself orally that such a stance on the Sheriff's part could not be tolerated. In exactly the same way, courts regularly reject the efforts of class-action defendants to pay off or otherwise to satisfy the individual claims of named plaintiffs in an effort to oust the courts of jurisdiction over the class action--a process of "picking off" the plaintiffs on a one-by-one basis. Both in the Opinion and during hearings in this case, this Court has constantly emphasized the case law that teaches "that once a class has been certified it acquires an existence separate and apart from that of the individual named plaintiffs, so that the failure of the latters' individual claims does not impair the class' entitlement to relief ( United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397-401, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980); Sosna v. Iowa, 419 U.S. 393, 399-403, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975))" (Opinion at 1425).

 Unsuccessful in that effort to torpedo FAC Count I, the Sheriff's counsel seeks to dismiss the proposed claim for injunctive relief by pointing to City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983) and O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974) as establishing the absence of an Article III case or controversy such as to justify equitable relief. Those cases, says Sheriff Sheahan, bar any potential for forcing him to cure the endemic problems identified in the Opinion. Under those opinions, the speculative nature of any potential future entanglements with the criminal law system on the part of the plaintiffs has been held to negate the required Article III standing for obtaining injunctive relief.

 Although O'Shea had been instituted as a class action (Lyons was not), neither O'Shea nor Lyons involved an already certified class. To this Court it seemed that fact, together with other factors discussed later in this opinion, might amount to material differences calling for a different legal conclusion, though neither party had adduced any case law addressing that possibility. It seemed entirely conceivable that although no specific individual might be able to demonstrate the likelihood that he or she would sustain future damages as the result of an invalid warrant remaining in the Sheriff's computer system as a seemingly live warrant, the fact (combined with the future probability) that one or more members of an entire class are thus placed in actual peril would appear to bulk much larger.

 In any event, this Court sent counsel for the litigants back to the books for further enlightenment on the matter. In response to this Court's request, counsel for Sheriff Sheahan has filed a supplemental memorandum by which he intends to show that O'Shea is still alive and well and living in the Seventh Circuit. *fn4" Although this Court had posed that inquiry in the class action context, virtually every case cited on the Sheriff's behalf involved individual claims *fn5" : Holstein v. City of Chicago, 29 F.3d 1145 (7th Cir. 1994); Smith v. Wisconsin Dep't of Agric., 23 F.3d 1134, 1141 (1994); Stewart v. McGinnis, 5 F.3d 1031, 1038 (7th Cir. 1993); Knox v. McGinnis, 998 F.2d 1405, 1413-14 (7th Cir. 1993); Feit v. Ward, 886 F.2d 848, 857-58 (7th Cir. 1989); and some more tangential cases that counsel characterizes by a "see also" label. Indeed, Sheriff Supp. Mem. 3-4 acknowledges that the plaintiff in Holstein had sought to file a class action but had not yet moved for class certification--so that Supp. Mem. 4 says:

Consequently, the class action exception to the mootness doctrine was not available to him.

 As for post-O'Shea class actions, however, Sheriff Sheahan points only to Palmer v. City of Chicago, 755 F.2d 560 (7th Cir. 1985). But there the Article III case or controversy requirement was found unsatisfied because no member of the plaintiff class had actually been deprived of his or her constitutional rights by the complained-of unconstitutional practice of withholding exculpatory evidence ( id. at 571). It was in that context that Palmer, id. at 570 quoted (and added emphasis to) this passage from Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976):

That a suit may be a class action...adds nothing to the question of standing, for even named plaintiffs who represent a class "must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent."

 But that issue is not involved here at all, for the real clincher in that respect is that further criminal activity (or even asserted criminal activity) on the part of a class member is not at all necessary for the peril posed by the Sheriff's unconstitutional conduct to be converted into reality. Zuziak's own case provides a dramatic illustration. Two days after an arrest warrant on a misdemeanor charge had been issued (on June 9, 1992, FAC P22) Zuziak turned himself in and was released on an I-bond, so that the state court judge issued an order recalling (quashing) the warrant (id. P23 and Ex. B). *fn6" Thus the presence of readily available and proper procedures in the Sheriff's computer system should have eliminated Zuziak's warrant from that system shortly after June 1992. It did not--because no such procedures had been adopted the warrant was still there, improperly reflected as an outstanding warrant for Zuziak's arrest, more than a year later (as already stated in n.6, even after the potential conviction for the misdemeanor offense had been erased by Zuziak's completion of the supervisory period). And it did not take any further brush with the criminal law to cause Zuziak to suffer harm from the Sheriff's dereliction--on the contrary, here is what FAC PP26-28 set out:

26. On or about August 21, 1993, Mr. Zuziak was stripping the floors at the Medinah Baptist Church in Medinah, Illinois. He saw some suspicious cars in the parking lot and called the police.
27. The Roselle police came and asked Zuziak for his identification. They then informed him he had a warrant out for his arrest which was entered in the ...

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