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Purnell v. Sheriff of Cook County

May 4, 2009

LARRY PURNELL, PLAINTIFF,
v.
SHERIFF OF COOK COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Blanche M. Manning United States District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, currently a federal prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, Cook County and its Sheriff, violated the plaintiff's constitutional rights by repeatedly subjecting him to an illegal search and seizure. More specifically, the plaintiff alleges that on multiple occasions when he was admitted to the jail, he was required to submit to a non-consensual test for sexually transmitted diseases that involved the insertion of a cotton swab into his penis. This matter is before for ruling on the defendants' motion to dismiss, which the court is treating as a motion for summary judgment. See Fed. R. Civ. P. 12(c); Minute Order of January 29, 2009 (converting the motion to summary judgment and granting the parties the opportunity to submit any additional materials they deemed relevant). For the reasons stated in this order, the motion is granted.

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Walker v. Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000).

However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "W here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted).

FACTS

The defendants filed a statement of uncontested material facts pursuant to Local Rule 56.1(a)(3) (N.D. Ill.). Together with their summary judgment motion, the defendants served on the plaintiff the mandatory notice under Local Rule 56.2, explaining the requirements of the Local Rules and warning the plaintiff that his failure to respond with appropriate evidentiary support could result in entry of judgment against him. (Document no. 40, Notice to Pro Se Litigant.) Despite the admonition, the plaintiff has not submitted a statement of contested facts supported by citations to the record; instead, he simply states his opposition to certain asserted facts. However, unsupported statements in a brief are not evidence and cannot be given any weight. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (failure to controvert the facts as set forth in the moving party's statement results in those facts being deemed admitted; mere disagreement is inadequate if made without reference to specific supporting material).

Because the plaintiff is proceeding pro se, the court will consider the factual assertions he makes in his brief, but only to the extent that the plaintiff could properly testify about the matters asserted at trial--that is, only with respect to those facts within the plaintiff's personal knowledge. See Fed. R. Evid. 602. The following facts, gathered from the defendants' statement of facts, the parties' exhibits, and the record in Case No. 06 C 0493 (N.D. Ill.) are therefore deemed undisputed for purposes of this motion:

In 2006, a former detainee at the Cook County Jail filed suit regarding the non-consensual insertion of a cotton swab in his penis as part of his admission to the jail. (See Jackson v. Sheriff of Cook County, et al., Case No. 06 C 0493 (N.D. Ill.), Complaint, document no. 1.) Shortly thereafter, the complaint was amended to seek class action status on behalf of all pre-trial detainees who, on or after January 27, 2004, had been subjected to the cotton swab test for sexually transmitted diseases. (Jackson, supra, Amended Complaint, document no. 7.)

In 2007, the parties reached a settlement agreement in Jackson. (Defendants' Exhibit 3, Settlement Agreement, document no. 228 in case no. 06 C 0493.) Judge Coar of this district, who presided over Jackson, approved the form and manner of a notice sent to class members. See Jackson, supra, Minute Entry of August 29, 2007. The notice granted class members until October 8, 2007, to object to the proposed settlement agreement and/or to opt out. (Settlement Agreement, p. 5; Plaintiff's Exhibit 6, "Notice of Settlement of Class Action.") The notice was sent by first class mail to the last "ascertainable" address of class members, with class counsel directed to make "reasonable efforts" to locate each class member. (Id.)

Class counsel Kenneth Flaxman supervised the mailing of the notice to class members. (Defendants' Exhibit 5, Affidavit of Kenneth Flaxman, ¶¶ 1, 3.) At the time notice was mailed out to class members, Flaxman was unaware of any inmate in federal custody. (Id., ¶ 5.)

In connection with the Jackson litigation, Andrew Krok, a programmer for the Cook County of Department of Corrections, created a database of all males booked into the Cook County Jail from January 27, 2004, through March 31, 2005. (Defendants' Exhibit 4, Affidavit of Andrew Krok, ¶ 2.) Krok gathered names, addresses, birth dates, and other identifying information for each inmate. (Id., ¶ 3.)

One of the inmates listed was a Larry Purnell, for whom Krok obtained a street address in Indiana. (Id., ¶ 4.). The plaintiff concedes that he lives at that address when not incarcerated, but points out that the computerized print-out of the address lacked an east/west designation and included the wrong ZIP code.

In addition, there is apparently more than one Larry Purnell in the area who has been incarcerated at the Cook County Jail. (Plaintiff's Exhibit 4, Letter from the Office of Corporation Counsel.) The plaintiff maintains that he therefore did not receive actual notice of the lawsuit until the end of November 2007, when his son received notice of the pay-out.*fn1

The court approved the settlement agreement on November 2, 2007. (Defendants' Exhibit 10, ...


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