United States District Court, N.D. Illinois, Eastern Division
December 12, 2005.
ALICE KOZLOWSKI and RENEE WALKER, individually and on behalf of a class, Plaintiffs,
MICHAEL SHEAHAN, Sheriff of Cook County in his official capacity, and COOK COUNTY Defendants.
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Alice Kozlowski and Renee Walker, two former pretrial detainees
at the Cook County Department of Corrections ("the county jail"),
brings a putative class action against Cook County and its
sheriff, Michael Sheahan, in his official capacity, pursuant to
42 U.S.C. § 1983. Defendants jointly move to dismiss. For the
reasons set forth below, the motion is granted.
The following facts are derived from the amended complaint.
This case arises from the pretrial detention of Kozlowski and
Walker in Division III of the county jail. They were held for
several months in 2002; Kozlowski was released on July 24, 2002,
and Walker, on September 19, 2002. Am. Compl. at ¶ 3. They were
assigned to Division III because it was designated to house
inmates who needed medical treatment; Kozlowski received
treatment for drug addiction, and Walker, for asthma. Id. at ¶
7. Division III, which occupied three floors, was divided into six
tiers. Id. at ¶ 8. An interlocking area separated each floor
into two tiers. Id. This area served as the only passageway to
the tiers and a monitoring station for guards. Id. Inside each
tier were cells, a common holding area, and shower stalls. Id.
at ¶ 9. Each cell housed two inmates. Id. at ¶ 10. Secured by a
steel door with a small opening, each cell had two bunk beds, a
toilet, and a sink. Id. The common holding area, known as "the
day room," had pay phones and a television. Id. at ¶ 9. If
allowed in the day room, inmates could socialize with each other,
use the pay phones, and shower. Id. From the monitoring
station, guards could observe the day room, but not the cells.
Id. at ¶¶ 9-10. The monitoring station was supposed to be
staffed by guards. Id. at ¶ 8. As a result, it was impossible
for inmates to pass weapons or contraband from one tier to
The lockdowns, which usually lasted from Friday afternoon to
Sunday afternoon, were conducted to seize weapons and contraband
from inmates. Id. at ¶ 11. Between March 11, 2001 and March 11,
2003 ("the class period"), lockdowns took place at least once a
month. Id. at ¶¶ 2(c), 11. During each lockdown, teams of
guards searched the tiers for weapons and contraband. Id. at ¶
11. The searches of each tier took less than 40 minutes. Id.
Because inmates could not pass weapons or contraband between the
tiers without going through the monitoring stations, inmates
would not burden the search effort by using the day room and
shower stalls after their tiers were searched. Id. at ¶ 8. But
inmates were confined in their cells during the entire lockdown.
Id. at ¶ 11. As a result, they could not exercise, shower, use
the pay phones, or watch television. Id. at ¶ 12.
While they do not allege denial of food, medical care, or
protection during the lockdowns, Kozlowski and Walker claim the
lockdowns violated the Fourteenth Amendment by subjecting them to
protracted detention in their cells. They seek to represent all
female pretrial detainees held in Divisions III and IV during the class period. Defendants move to
dismiss on two grounds: (1) this case is time-barred; and (2)
plaintiffs fail to state a claim.
I. Motion to Dismiss Standard
"A motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, and dismissal of an action under
the rule is warranted only if `no relief could be granted under
any set of facts that could be proved consistent with the
allegations.'" Cler v. Ill. Educ. Ass'n, 423 F.3d 726, 729 (7th
Cir. 2005) (quoting DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000)). In ruling on a motion to dismiss, the court must
accept the well-pleaded allegations as true and draw all
reasonable inferences in favor of the nonmoving party. Cler,
423 F.3d at 729. To survive a motion to dismiss, a complaint
"need not plead particular legal theories or particular facts."
DeWalt, 224 F.3d at 612. All that is required is "a short and
plain statement . . . that will give the defendant fair notice"
of the nature and basis of the claim. Id. But a complaint must
be dismissed if it "reveals that the plaintiff's claim is barred
by a statute of limitations." Tregenza v. Great Am. Commc'ns
Co., 12 F.3d 717, 719 (7th Cir. 1993).
II. Statute of Limitations
Plaintiffs' § 1983 claim is subject to Illinois' two-year
limitations period for personal injury actions. Mitchell v.
Donchin, 286 F.3d 447, 450 (7th Cir. 2002). Defendants argue the
limitations period has run: Plaintiffs were released before
September 19, 2002, but did not file this case until September
28, 2005 more than three years after suffering the alleged
injuries. In response, plaintiffs argue the limitations period is tolled by the timely
commencement of Hart v. Sheahan, 03 C 1768 (N.D. Ill.), another
putative class action filed by pretrial detainees.
A. Hart v. Sheahan
Genise Hart and five other pretrial detainees filed a putative
class action against Sheriff Sheahan and Cook County on March 11,
2003. Defs. Exs. C (docket printout), F (second amended
complaint). Hart claimed protracted detention identical to
Kozlowski and Walker's allegations: "[D]uring the weekend lock
down, the detainee is neither released from her cell nor
permitted to shower, exercise or have access to a phone to
communicate with their [sic] lawyer or family." Defs. Ex. F at
¶ 20. In addition, Hart alleged that because they were confined
in their cells during the lockdowns, inmates could not
communicate with guards if they needed protection against
cellmates or medical attention. See, e.g., id. at ¶¶ 19, 39-41,
Judge Zagel initially dismissed Hart's second amended
complaint. Hart, Dkt. No. 35 (Dec. 18, 2003). On appeal, the
Seventh Circuit held that Hart sufficiently stated a claim based
on the alleged lack of access to medical attention and guard
[T]he heart of the plaintiffs' claim, with enough
merit to withstand a motion to dismiss, is that the
jail is subjecting them to a risk of serious harm by
an unreasonably protracted detention of them out of
sight and hearing of guards.
Hart v. Sheahan, 396 F.3d 887
, 894 (7th Cir. 2005) (emphasis
added). The Seventh Circuit instructed that on remand, Judge
Zagel should "prun[e] the overlong complaint of untenable
charges." Id. One of the untenable charges was Hart's claim
based on protracted detention alone. Had the Seventh Circuit
intended to allow the protracted detention claim to go forward,
its holding would not have included the restricting language
about the inmates' being "out of sight and hearing of guards." Id. Accordingly, Judge Zagel dismissed the
protracted detention claim on remand. Hart, Dkt. No. 100, at *1
(Oct. 25, 2005) (striking two allegations from Hart's fourth
amended complaint (Defs. Ex. B at ¶¶ 9(d)(iv)-(v)) "because they
seem relevant only to a theory that an unreasonably prolonged
detention (even without risk of serious harm) is
Kozlowski and Walker acknowledge they are putative class
members in Hart and that Judge Zagel has not ruled on class
certification. Pls. Mem. at 8. By filing the present case, they
attempt to revive the protracted detention claim dismissed in
Hart. See id. Whether Hart provides a basis for tolling the
limitations period depends on whether the tolling doctrine
applies to their claims.
B. Applicability of the Tolling Doctrine
First established in American Pipe & Construction Co. v.
Utah, the tolling doctrine provides that if a class action is
timely filed, the limitations period stops running for all
putative class members. 414 U.S. 538, 554 (1974). This doctrine
serves to avoid multiplication of intervention motions by
putative class members before class certification is decided.
See id. at 551. The doctrine protects "the principal purposes
of the class action procedure promotion of efficiency and
economy of litigation." Crown, Cork & Seal Co. v. Parker,
462 U.S. 345, 349 (1983). To achieve this purpose, the doctrine
should not be applied to a putative class member who multiplies
proceedings by filing a new action while class certification is
A clear majority of federal courts has followed this approach.
In Glater v. Eli Lilly & Co., the First Circuit refused to toll
the limitations period for a plaintiff who filed her individual
suit while class certification was pending. 712 F.2d 735, 739
(1st Cir. 1983). The First Circuit reasoned that judicial economy
"would not be served, and in fact would be disserved, by
guaranteeing a separate suit at the same time that a class action [was]
ongoing." Id. Applying the same rationale in Wyser-Pratte
Management Co. v. Telxon Corp., the Sixth Circuit held that
putative class members forfeited the benefit of the tolling
doctrine if they filed individual actions during the pendency of
class certification. 413 F.3d 553, 569 (6th Cir. 2005). The
weight of authorities militates against applying the tolling
doctrine to the present case because class certification in
Hart is pending.*fn1
Arguing the contrary, plaintiffs rely on Yang v. Odom,
392 F.3d 97 (3d Cir. 2004), and Catholic Social Services, Inc. v.
Immigration and Naturalization Service, 232 F.3d 1139 (9th Cir.
2000) (en banc). Yang and Catholic are distinguishable
because class certification in both cases had been decided.
Yang applied the tolling doctrine to plaintiffs after class
certification in a previous action was denied. Yang,
392 F.3d at 112. Similarly, Catholic dealt with a situation where
individual plaintiffs from a previously-dismissed class action
sought to file a new class action. Catholic, 232 F.3d at 1147
("[s]trickly speaking, this is not a statute of limitations
question at all"). Neither case sheds any light on the situation
here because class certification in Hart is still pending.
Thus, plaintiffs' argument on the applicability of the tolling
doctrine must fail.
Plaintiffs advance an alternative argument that Judge Zagel's
dismissal of Hart's protracted detention claim constitutes denial
of class certification. Because plaintiffs assert only the
protracted detention claim, they conclude tolling is applicable. This
argument not only lacks a legal basis, but also incorrectly
assumes their case may proceed under the protracted detention
As discussed above, Hart forecloses claims based on
protracted detention alone. Plaintiffs point to one sentence in
Hart: "[U]nless inmates can go between tiers, once a tier has
been searched there is no apparent reason why the inmates in that
tier can't be let out of their cells." Pls. Memo. at 3 (quoting
Hart, 396 F.3d at 893). This sentence, they assert, subjects
their protracted detention to constitutional scrutiny. Pls. Mem.
at 3. But the quoted sentence must be read in the context:
"These consequences [resulting from the lack of access to
medical care and guard protection] might . . . condemn the
administration of the jail if there . . . [exists an] other way
to conduct the lockdown." Hart, 396 F.3d at 893 (emphasis
added). The sentence quoted by plaintiffs addresses only the
claims based on lack of access to guards, and does not validate
claims based on protracted detention alone. Plaintiffs' argument
has no merit.
Under Hart, plaintiffs may not sue for protracted detention.
Id. at 894. The court need not address the parties' arguments
based on other issues. The present case may proceed, if at all,
only under the theory that defendants subjected the inmates "to a
risk of serious harm by an unreasonably protracted detention of
them out of sight and hearing of the guards." Id. The present
case parallels Hart; the tolling doctrine does not apply when
class certification in Hart is pending. Because the two-year
limitations period has expired, the present case must be
For the reasons set forth above, the motion to dismiss is
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