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Jackson v. Sheriff of Cook County

December 14, 2006

ROBERT JACKSON, JOSEPH MCGRATH, AND DERRELL SMITH PLAINTIFFS,
v.
SHERIFF OF COOK COUNTY, COOK COUNTY, ILLINOIS AND DIRECTOR, CERMAK HEALTH SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Now before this court is the Motion to Certify Plaintiff Class filed by plaintiffs Robert Jackson ("Jackson"), Joseph McGrath ("McGrath"), and Derrell Smith ("Smith") (collectively "Plaintiffs") against Defendants Sheriff of Cook County ("Sheriff"), Cook County of Illinois ("Cook County"), and Director of Cermak Health Services ("Cermak") (collectively "Defendants"). For the reasons set forth below, Plaintiffs' motion for class certification is GRANTED.

BACKGROUND*fn1

The instant Plaintiffs were admitted to the Cook County Jail as pre-trial detainees at varying dates,*fn2 where they were allegedly forced to undergo a screening test for sexually transmitted disease ("STD screening"). Though some details of their accounts vary, the general process was the same in all cases. Upon arriving at the jail, Plaintiffs signed medical release forms and questionnaires as part of the admission procedure. One of these forms contained a "Consent for Treatment" decree, apparently signed by all three putative representatives, that read as follows:

I consent to a medical and mental health history and physical including screening for tuberculosis and sexually transmitted diseases as part of the intake process of the Cook County Jail....[signed by prisoner].

See Resp. to Cert. Mot. Ex. A at 18, Ex. B at 16, Ex. C at 17. All admitted prisoners were lined up to enter an examination room within the medical intake area. Once inside, a medical technician from Cermak Health Services asked the prisoners to lower their pants. The technician would then insert a cotton swab into the tip of each prisoner's penis, apparently in order to collect a tissue sample for testing.*fn3 At all times, jail deputies were nearby, though it is not entirely clear where they were usually stationed with respect to the examination area.*fn4

On January 27, 2006, Plaintiff Jackson filed a complaint alleging violation of his constitutional rights under the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983. The Complaint was amended on January 31, 2006 to include additional Plaintiffs McGrath and Smith, and corrected on February 1, 2006. Plaintiffs in this case have now filed a motion for class certification. The putative plaintiff class consists of "[a]ll male prisoners at the Cook County Jail who, on and after January 27, 2004, was [sic] subjected to the non-consensual insertion of a swab into this penis as part of his admission to the jail." Cert. Mot. at 1. In support of their motion to certify the class, Plaintiffs have submitted fourteen (14) "Sworn Declarations" from men who had been admitted into the Cook County Jail.*fn5 See Cert. Mot., Ex. 1. These declarations rely upon roughly identical text to state their support of the class and the declarant's potential membership in it:*fn6

The undersigned, under penalties of perjury, certifies that the following statement are [sic] true:

1-2. [summary of individual's biographical information, including name, date of admission, CIMIS number, and age at the time]

3. On admission to the Cook County Jail, I was subjected to a procedure which I understand to be known as the insertion of a urethral swab into my penis.

4. I did not consent to this procedure [and tried to refuse].

5. I would not have agreed to undergo this procedure if I had been given a choice.

6. The procedure was painful and an embarrassing intrusion into a private part of my body.

7. I was in pain for [___] day(s) after the procedure. 8. The person who performed the procedure held my penis with ...


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