The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
Plaintiffs Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and two certified classes, have sued former Cook County Sheriff Michael Sheahan and Sheriff's employees Callie Baird, Scott Kurtovich, and Salvador Godinez (collectively the Sheriff Defendants), as well as Cook County, under 42 U.S.C. § 1983. Plaintiffs allege violations of their Fourth and Fourteenth Amendment rights during the time they were confined as pretrial detainees at the Cook County Jail (CCJ). Cook County and the Sheriff Defendants have moved separately for summary judgment, and plaintiffs have moved for partial summary judgment on the issue of liability.
On cross-motions for summary judgment, the Court construes facts and draws inferences "in favor of the party against whom the motion under consideration is made." In re United Air Lines, Inc., 453 F.3d 463, 469 (7th Cir. 2006).
1. CCJ and the Defendants
During the class period, CCJ housed, at any given time, approximately 10,000 pretrial detainees in ten residential divisions. Women are housed in two of the divisions, and men are housed in nine of them (one division houses both women and men). New detainees enter CCJ through the Receiving Classification and Diagnostic Center (RCDC). The RCDC contains separate areas for men and women. Between 250 and 350 detainees are booked into and out of CCJ daily, of which approximately 300 detainees are men and thirty to forty are women.
Most of the detainees arriving at CCJ have already had a probable cause hearing before a judge. Though defendants contend they do not know the nature of charges pending against detainees when they arrive at the RCDC, the evidence they cite on this point does not support that contention. Rather, the evidence shows that the RCDC staff has information identifying the specific offense(s) with which each detainee has been charged, though a charge is not expressly classified as a felony or a misdemeanor.
The Sheriff Defendants were all high-ranking officials in the Sheriff's office during times relevant to plaintiffs' claims. Sheahan was the Cook County Sheriff from December 1990 to December 2006. As Sheriff, Sheahan was the custodian of CCJ under Illinois law. See 55 ILCS 5/3-6017. Sheahan had policymaking authority over CCJ, including with regard to strip search policies.
Baird was the director of the Cook County Department of Corrections (CCDC) from July 2003 until November 2004.*fn1 She was succeeded by Kurtovich, who served as director from November 2004 until June 2006. In turn, Godinez followed Kurtovich as director of CCDC and continues to hold that position currently. Baird, Kurtovich, and Godinez all had policymaking authority over intake strip searches at CCJ during their respective tenures as directors of CCDC. This responsibility included ensuring CCJ's policies concerning intake strip searches complied with federal and state law.
2. Procedures and Strip Searches at CCJ
All new detainees entering CCJ are visually strip searched for the purpose of finding contraband. The search involves a visual inspection of the detainee's naked body, including his or her body cavities. Most detainees arriving at the RCDC enter CCJ's general population, regardless of the type of charge they are facing.
Defendants have submitted over 2000 pages of contraband reports, spanning several years, that they contend show a pervasive problem of detainees attempting to bring contraband into CCJ. Contraband, as defined in a jail setting, includes paper money, loose change, and cigarettes, as well as weapons and drugs. The majority of these 2000-plus pages of reports appear to deal with contraband that is not inherently dangerous, such as money.
Defendants contend that weapons and drugs have been "routinely" found in possession of detainees arriving at the RCDC. Sheriff Defendants' Local Rule 56.1 Statement ¶ 26. Defendants do not, however, cite to any evidence supporting their claim that these items are "routinely" found. Rather, they cite general testimony about the types of contraband found over the years and refer to the 2000 pages of contraband reports as a group without providing detail regarding how many of those reports concern drugs, weapons, or other dangerous items. As plaintiffs correctly point out, however, it is not the Court's responsibility to go hunting through a record of this size unguided to try to find a factual dispute. Rather, it is the parties' obligation to draw the Court's attention to evidence they contend is relevant. See, e.g., Roger Whitmore's Auto Serv., Inc. v. Lake County, 424 F.3d 659, 664 n.2 (7th Cir. 2005); Ogdon v. Hoyt, 409 F. Supp. 2d 982, 986-87 (N.D. Ill. 2006). Defendants have not satisfied this obligation by their general citation to the mass of contraband reports.
Similarly, the Sheriff Defendants contend that "[b]ased on the contraband report, misdemeanants were just as likely to carry contraband as detainees charged with more serious crimes." Sheriff Defendants' Local Rule 56.1 Statement ¶ 28. To support this contention they cite the testimony of their expert witness and contraband reports as a whole. The citation to defendants' expert does not support that statement. Defendants' expert testified that he considered the contraband reports as part of his opinion but did not indicate how many, if any, of those reports involved detainees charged with misdemeanors. And, as noted above, defendants' blanket citation to the 2000 pages of reports likewise does not properly support their contentions. In their briefs, defendants cite five specific examples from the reports of detainees allegedly charged with misdemeanors having been found with contraband, including weapons or drugs. See Sheriff Defendants' Reply in Supp. of their Mot. for Summ. J. Based on Constitutionality of Search Policies at 4 (citing Sheriff Defendants' Local Rule 56.1 Statement Ex. 10 at QH 384, 421, 423, 461); Sheriff Defendants' Mem. in Supp. of their Mot. for Summ. J. Based on Qualified Immunity at 4 (citing Sheriff Defendants' Local Rule 56.1 Statement Ex. 10 at QH 470). They do not, however, provide any basis to support their contention that these events occur "routinely." Sheriff Defendants' Local Rule 56.1 Statement ¶ 26. Moreover, as discussed below, the evidence does not support defendants' contentions regarding the five suggested examples.
In addition, defendants have provided no information regarding how many of the 2000-plus contraband reports involve detainees charged with non-weapon, non-drug misdemeanors, much less how many such detainees were found to possess weapons or drugs. Plaintiffs correctly point out that the contraband reports do not always indicate whether the contraband was found in a detainee's body pursuant to a strip search or was instead found in a detainee's clothes (e.g., loose change in a pocket). The difference is significant; a strip search would not be needed to find items in pockets.
The searches conducted during the class period involved having detainees strip naked, bend over, and spread their buttocks, or by having the detainees squat and cough multiple times. Strip searches were conducted without regard to the seriousness of the charges against an individual detainee and without individualized reasonable suspicion that a strip search was necessary. Defendants contend that the seriousness of the charges against any given detainee had been considered by a judge at bond court prior to the commitment of the detainee to CCJ. Though true, this does not contradict plaintiffs' contention that new detainees were strip searched at CCJ regardless of the level or the nature of the offense charged. As a result, a detainee who (for example) was unable to make bail on a misdemeanor charge was strip searched.
New female detainees arriving at CCJ ordinarily were not strip searched at the RCDC. Rather, they were searched with a body scanning machine at the RCDC and were later strip searched upon arrival at the residential division to which they were assigned. The women were strip searched in open-faced cubicles, a space similar to that provided by a privacy screen in a doctors' office, with dimensions of approximately five feet by five feet. Each cubicle contained a chair for the women's clothes, and the detainees could not see individuals in other cubicles. Throughout the class period, the squat-and-cough method was used for female detainees, not the bend-and-spread method.
The search procedures differed for male detainees. They were strip searched both at the RCDC and a second time upon arrival at a housing division. The strip searches at the RCDC were conducted using the bend-and-spread method until approximately February 2006. Since then, male detainees at the RCDC have been searched using the squat-and-cough method. Despite defendants' contentions to the contrary, the Rule 30(b)(6) witness for CCDC indisputably testified that he was not aware of any justification for using the bend-and-spread method for the men as opposed to the squat-and-cough method prior to February 2006. He also acknowledged that the squat-and-cough method is a more dignified way to conduct a search. The squat-and-cough method is as effective in conducting searches as the bend-and-spread method, and CCJ has not experienced any problems due to the change in methodology.
At the RCDC, male detainees were lined up in a hallway for their strip search. At times, detainees would cover the entire length of the hallway wall. Plaintiffs allege that the RCDC staff did not conduct searches until the holding bullpen was full, but defendants have presented evidence that searches sometimes take place before the bullpen was full. Defendants admit that guards took groups of seventy-five men for strip searches in the hallway, but they note that the last group searched at night was typically smaller. Plaintiffs present evidence that strip searches were occasionally conducted in a group of over 100 detainees at the same time, though defendants dispute that more than seventy-five detainees were ever searched at a time. CCDC's Rule 30(b)(6) witness could not rule out the possibility, however, that more than eighty detainees were sometimes searched in a single group at the RCDC.
The RCDC hallway where male detainees were strip searched in groups did not contain any privacy screens before January 31, 2007. Defendants' expert, Norman Carlson, is unaware of any other jails that have conducted group strip searches without privacy dividers in the last twenty years. When his deposition was taken in November 2006, CCDC's Rule 30(b)(6) witness stated that he was unaware whether CCDC had ever investigated the possibility or cost of installing privacy dividers in the hallway where men were strip searched at the RCDC. In or around February 2007, privacy screens were installed in the hallway where groups of men are strip searched at the RCDC.*fn2
The screens were spaced approximately four feet apart, and the hallway was large enough to accommodate thirty-seven stalls. Since the stalls were installed, the number of men searched at one time has been limited to the number of available stalls. Defendants dispute this is the case, but the evidence they cite does not support their contention. Sometime after January 2007, a body scanning machine was also installed in the male section at the RCDC. The parties dispute how long it takes the machine used on the male side of the RCDC to complete a scan.
Plaintiffs and defendants both compare defendants' policies to those used by the federal Bureau of Prisons (BOP). Defendants concede that BOP's procedures for strip searches of incoming detainees are reasonable under the circumstances facing BOP. By 1987, all BOP facilities had privacy screens for all detainees undergoing strip searches. Defendants' expert witness is unaware of any jurisdictions other than Cook County that conduct strip searches of all detainees charged with misdemeanors without giving them the option to avoid a strip search by remaining outside of the jail's general population.
Plaintiff Jones is a fifty-two year-old man. He was taken to CCJ after failing to comply with a condition of his bond for a misdemeanor traffic violation. During his intake at CCJ, Jones was strip searched with a group of fifty other men. Jones claims that during the search, he and the other men were lined up shoulder-to-shoulder and were required to bend over with their buttocks spread apart while a guard walked up and down the line. Defendants deny that the men in the group strip search would have touched each other and claim they would have been at least six inches apart based on the practice at CCJ. After posting bond later that same night, Jones was released from custody.
Plaintiff Johnson is a forty-four year-old man. He was arrested for felony possession of a controlled substance. Johnson alleges he was falsely arrested. He was taken to CCJ and strip searched in a hallway, allegedly with 100 other men. Johnson claims the search was so crowded that the naked men were touching each other. Defendants cite Johnson's deposition testimony to contend that the prisoners during the search were not touching each other. This takes Johnson's testimony out of context. When read in its entirety, it is clear that Johnson only denied that someone reached out and affirmatively tried to touch him. See Sheriff Defendants' Resp. to Pls.' 56.1 Statement Ex. 4 at 59-64. He unequivocally stated the crowding of the search resulted in poisoners touching each other: "Q. Nobody touched you or nobody touched you in the way that you were offended by? A. Offended by. I mean it was so crowded, I was touched but it wasn't done offensively." Id. at 59:23-60:2.
Plaintiff Young is a forty-seven year-old woman. She was arrested for failure to appear in court on a misdemeanor traffic violation and was taken to CCJ. While waiting for delivery of $200 for her bond, Young was subjected to an intake strip search.
On April 25, 2007, the Court, pursuant to Federal Rule of Civil Procedure 23, certified two classes of plaintiffs. Class I consists of "all males who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004." Dkt. No. 92 at 16. Jones and Johnson are the class representatives for Class I. Class II consists of "all persons charged only with misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip search and/or a visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004." Id. Jones and Young are the class representatives for Class II.*fn3
In addition to information about the class representatives, plaintiffs have submitted sworn declarations from over 500 men, selected randomly, who were strip searched at the RCDC during the class period. Defendants dispute the factual content of these declarations based on testimony regarding the general experiences of CCJ officials and employees, but not based on first-hand knowledge concerning the specific allegations contained in the declarations. Cook County also ...