The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
The parties to this action are: Plaintiffs Robert Jackson ("Jackson"), Joseph McGrath ("McGrath"), and Derrell Smith ("Smith") on behalf of a certified class (collectively "Plaintiffs" or "the class"); Defendant Sheriff of Cook County ("Sheriff"); and Cook County of Illinois ("Cook County") along with the Director of Cermak Health Services ("Cermak"), an operating unit of the Cook County Bureau of Health (collectively "Cermak Defendants"). Now before this court are the following motions: Plaintiffs' Motion for partial summary judgment on liability (Doc. No. 98); Defendant Sheriff's Motion for Summary Judgment (Doc. No. 103); Defendants Cermak and Cook County's Motion for Summary Judgment (Doc. No. 104); and Defendants' motions to dismiss (Doc. Nos. 30, 35).*fn1 For the reasons stated below, the motions for summary judgment are DENIED, and Defendants' motions to dismiss are DENIED in part and GRANTED in part.
The named Plaintiffs represent a class of former inmates of the Cook County Jail who were subjected to a screening test for sexually transmitted diseases during the facility's intake process.
Following a bond hearing, all pre-trial detainees admitted to the jail were taken to the Receiving, Classification, Diagnostic Center ("RCDC") for intake into the facility. The medical testing portion of this process included x-rays, a medical history, and a urethral swabbing used to screen for chlamydia and gonorrhea ("STD screening"). Each prisoner would enter the STD screening room one by one and stand behind a privacy screen, where a Cermak certified medical technician ("CMT") was waiting to execute the swabbing itself. The CMT asked each prisoner to lower his pants, inserted a cotton swab two to four centimeters into the prisoner's penis, rotated the swab, and extracted it in order to collect the required sample for testing. Some aspects of the process varied from prisoner to prisoner, such as whether or not the prisoner's penis was held during this process and, if holding was necessary, whether the CMT or the prisoner did the holding. CMTs wore gloves at all times when in contact with the prisoners, although the frequency with which they changed these gloves and the ultimate purpose for wearing them is in dispute. In addition, it is also in dispute whether or not the procedure was conducted over a garbage can in order to catch possible discharge during the procedure.
Each prisoner was asked to sign a release and consent form for the medical procedures, which included the following language: "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." See Resp. to Cert. Mot. Ex. A at 18, Ex. B at 16, Ex. C at 17. In at least some instances these forms were signed after the screening process, rather than before. Some parties have claimed to have encountered physical coercion themselves or witnessed it being applied to others by jail guards. It is generally unclear what level of knowledge of the procedure prisoners had as they began the swabbing procedure, for although there was an informational poster in place and some CMTs would solicit questions or provide information regarding the process, the degree of understanding of prisoners remains unclear.
Cermak is a division of the Cook County Bureau of Health and is therefore distinct from the Sheriff who was responsible for running Cook County Jail. Cermak employees entered the jail in order to conduct these intake tests and executed all aspects of the screening itself. However, because the screening took place inside the jail, the process was a collaborative one, Rodriguez Dep. at 43, with jail staff standing nearby at all times in order to ensure security and forward progress. A general order promulgated by the Sheriff supports the use of medical screening during intake, stating that all admitted prisoners should go through such a process.
Plaintiffs filed a complaint citing violations of their constitutional rights under the Fourth and Fourteenth Amendments pursuant to 28 U.S.C. § 1983, which took its final form as of February 1, 2006 (Docket No. 7). In that complaint, Plaintiffs claim that the search violated their constitutional rights, protected under 42 U.S.C. § 1984, and that the manner in which the test was conducted was calculated to spread disease. On December 14, 2006, this court certified a class made up of: "All 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 his penis as part of his admission to the jail." (Docket No. 101).
A party seeking summary judgment has the burden of showing, through "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that there are no genuine issues of material fact that would prevent judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). On a motion for summary judgment, courts "must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380 (7th Cir. 2001).
Even so, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In order to successfully oppose a motion for summary judgment, the non-movant must do more than raise a "metaphysical doubt" as to the material facts, see Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001) (citation and quotation omitted), and instead must present definite, competent evidence to rebut the motion, see Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001); Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material dispute of fact exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A non-moving party who bears the burden of proof on a specific issue must demonstrate by specific factual allegations that there is a genuine issue of material fact in dispute. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989). This evidence provided by the non-movant must be sufficient to enable a reasonable jury to find in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.
Mere allegations in the pleadings, unsupported by record evidence, cannot create an issue of fact defeating summary judgment. Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). The Seventh Circuit has also made it clear that "self-serving affidavits, without any factual support in the record, are insufficient to defeat a motion for summary judgment." Palmer v. Marion County, 327 F.3d 588 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) as stating that "[t]he object of [Rule 56(e) ] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); see also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (clarifying that such evidence is valid to the extent that it is "based on personal knowledge and [sets] forth specific facts showing that there is a genuine issue for trial").
This Court now considers the possibility that the STD screening represents an unconstitutional search or invasion of privacy and, if it is unconstitutional, who is responsible for the violation. As an initial matter, it should be noted that this case has proceeded to this stage under a particular formulation. At certification, Plaintiffs maintained an intent "to show in their impending motion for summary judgment that the totality of circumstances at the receiving unit makes it impossible for anyone to give a valid consent to the insertion of the urethral swab." Therefore, to the extent that Plaintiffs' assertions represent unique accounts of individual experiences in the intake process, they are largely irrelevant to a determination of the summary judgment motions; to the extent that the conditions and experiences within the RCDC are not common to the class as a whole, they are either irrelevant to the suit as it now stands or urge reconsideration of certification.
Applicable Constitutional Principles
This case centers on whether the urethral swab that was administered to all admitted prisoners amounts to an impermissible search. "There is no principle more firmly rooted in our constitutional jurisprudence than that warrantless search is presumptively illegal." U.S. v. Gamble, 473 F.2d 1274, *1276 (7th Cir. 1973). In addition, inmates have a constitutional interest in being able to decline unwanted medical procedures. Cruzan v. Dir. Missouri Dep't of Health, 497 U.S. 261, 278-79, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990).
Defendants claim that the due process protections of the Fourteenth Amendment should be applied to this case instead of the Fourth Amendment analysis that Plaintiffs have urged. See, e.g., Cermak Defs.' Mot. to Dismiss Mem. at 3-7. Defendants are correct that Plaintiffs' cited cases do not unequivocally support the application of the Fourth Amendment to this case. See Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004) (distinguishing restraint of a prisoner, to which Fourth Amendment was applied, and forced catheterization, which required due process analysis). However, Plaintiffs' filings do not limit themselves to the Fourth Amendment analysis, as Defendants claim, but rather assume that both or either protections might be applicable. Corr. Am. Compl. ¶ 11. In subsequent filings, all parties have focused a great deal of energy on Fourth Amendment law. That approach was valid.
The Fourth Amendment provides the appropriate standard by which to consider whether the STD screening was constitutional. Courts have applied Fourth Amendment protections to the collection of bodily substances for analysis or the intrusive inspection of a plaintiff's body when performed on an individual.*fn2 See, e.g., Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (applying the Fourth Amendment to the non-consensual drawing of blood). Fourth Amendment analysis has also been upheld in cases where the intrusion was performed on a universal or class-wide basis. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989) (upholding Fourth Amendment analysis of the drawing of blood, use of a breathalyzer, and collection and testing of urine performed on all railroad employees); Bell v. Wolfish, 441 U.S. 520, 60 L.Ed. 2d 447, 99 S. [CITE] . 1861 (1979) (post-visitation body cavity search in prison); Forbes v. Trigg, 976 F.2d 308 (7th ...