The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan
MEMORANDUM OPINION AND ORDER
Plaintiffs Elton Gates ("Gates") and Luster Nelson ("Nelson") (collectively, "Plaintiffs") initiated this class action lawsuit under 42 U.S.C. § 1983 against the City of Chicago ("the City") and Chicago Police Superintendent Philip J. Cline (collectively, "Defendants") challenging the constitutionality of the City's policies governing the inventorying and return of money seized from individuals upon their arrest by the Chicago Police Department.*fn1 (No. 1, Compl.; No. 192, Fifth Amended Compl.) Pursuant to 28 U.S.C. § 636(c), all parties have now consented to the jurisdiction of the United States Magistrate Judge in this matter. (No. 514, Joint Consent to Exercise of Jurisdiction of U.S. Magistrate Judge.) Currently before the Court is Defendants' motion for summary judgment on the procedural due process claims of the Supplemental Class certified by this Court on May 12, 2011. (No. 537, Defs.' Mot. for Summary Judgment at 1; No. 538, Defs.' Mem. in Support of Mot. for Summary Judgment ("Defs.' Summary Judgment Mem.") at 1--4.) For the reasons set forth below, Defendants' motion is DENIED.
Individuals arrested by the Chicago Police Department are often carrying small amounts of money on their persons, which is seized and inventoried by the officers at the time of the arrest. See Gates v. City of Chicago, 623 F.3d 389, 391 (7th Cir. 2010). The named Plaintiffs here were arrestees from whom police officers confiscated money, and they have challenged the sufficiency of both the procedures the City has in place for the return of their seized funds as well as the notice provided that describes those procedures. Id.This is the ninth opinion to be issued in this case, including six opinions from Judge Ruben Castillo in the Northern District of Illinois, two decisions handed down by the Seventh Circuit Court of Appeals, and one previous opinion from this Court. See Gates v. Towery, 331 F. Supp. 2d 666 (N.D. Ill. 2004) ("Gates I") (partially granting and partially denying Plaintiffs' motion to reconsider dismissal of their complaint); Gates v. Towery, No. 04 C 2155, 2004 WL 2583905 (N.D. Ill. Nov. 10, 2004) ("Gates II") (granting Plaintiffs' motion for class certification with modification), aff'd, 430 F.3d 429 (7th Cir. 2005) ("Gates III"); Gates v. Towery, 435 F. Supp. 2d 794 (N.D. Ill. 2006) ("Gates IV") (partially granting and partially denying Defendants' motion to dismiss); Gates v. Towery, 456 F. Supp. 2d 953 (N.D. Ill. 2006) ("Gates V") (redefining the certified class and partially granting Defendants' motion to dismiss); Gates v. Towery, 507 F. Supp. 2d 904 (N.D. Ill. 2007) ("Gates VI") (dismissing certain claims and granting summary judgment in favor of Defendants on remaining claims); Gates v. City of Chicago, 623 F.3d 389 (7th Cir. 2010) ("Gates VII") (holding that Plaintiffs' restitution claims were properly dismissed as moot, but that the grant of summary judgment to Defendants on the due process "notice" and "procedures" issues was in error); Gates v. City of Chicago, 2011 WL 1811187 (N.D. Ill. May 12, 2011) ("Gates VIII") (granting Plaintiffs' motion for certification of a supplemental narcotics "procedures" class with modification). The complex factual background and extensive procedural history of this case have been detailed by the District Court, the Seventh Circuit, and this Court in past opinions and will only be recounted here as pertinent to the pending motion. See, e.g., Gates V, 456 F. Supp. 2d at 957--58; Gates VII, 623 F.3d at 391--94; Gates VIII, 2011 WL 1811187, at **1--2.
The District Court first certified a class in this case on November 9, 2004, pertaining to Plaintiffs' federal due process claims pursuant to the Fifth and Fourteenth Amendments.*fn2 Gates II, 2004 WL 2583905, at *9; (No. 192-2, Fifth Amended Compl. at 2, 6.) This class was affirmed by the Seventh Circuit in Gates III, 430 F.3d at 429, and subsequently divided into two subclasses by the District Court in Gates V,one for non-narcotics arrestees and one for narcotics arrestees. 456 F. Supp. 2d at 970. Plaintiff Gates was designated the representative of the non-narcotics subclass, and Plaintiff Nelson was assigned to represent the narcotics subclass. Id. at 968--70. These due process class definitions have remained unchanged since Gates V and are defined as follows:
A narcotics [or non-narcotics] class, composed of all those persons who, after March 23, 2002, and before December 14, 2004, had property taken from them upon their arrests by Chicago police officers provided: (a) the criminal charges against them have been resolved in the trial court; (b) no forfeiture action was commenced against the seized property; (c) the time for filing a forfeiture action has expired; (d) the property was not inventoried as evidence in any criminal investigation; (e) the arrestee was issued an inventory receipt when arrested indicating that the arrestee would be notified when the property was available for pick-up; (f) the arrestee never received notice that the property was ready for return; (g) the money has not been returned to the arrestee; and (h) the arrestee was [not] arrested for a narcotics offense.
In 2007, both Plaintiffs and Defendants moved for summary judgment, and in Gates VI, the District Court granted summary judgment to Defendants on the due process claims. 507 F. Supp. 2d at 907, 928. Plaintiffs appealed the Gates VI ruling, and in 2010, the Seventh Circuit held that summary judgment had been granted to Defendants in error. Gates VII, 623 F.3d at 413. In so holding, the court made clear that "meaningful notice" and "adequate procedures" are two separate and distinct due process questions and that Plaintiffs had adequately raised and preserved both issues. Id. at 404--05. The Seventh Circuit further concluded that the notice provided by the City "may be inadequate" and also that the "record was replete with factual disputes" regarding what the City actually requires of arrestees seeking return of their money. Id. at 405. The case was remanded to the District Court for further proceedings, and shortly thereafter, the parties consented to the jurisdiction of the United States Magistrate Judge. Gates VII, 623 F.3d at 413; (No. 514, Joint Consent to Exercise of Jurisdiction of U.S. Magistrate Judge).
During the three years that the summary judgment appeal was pending with the Seventh Circuit, the City did not remain idle. As part of the settlement of the related litigation, Kennedy v. City of Chicago, Case No. 06 C 4914 (N.D. Ill.), the City voluntarily agreed to implement both new notice and new procedure policies with regard to property taken from individuals upon their arrest. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class. Ex. 1 §5.1, Ex. 4; No. 538, Defs.' Summary Judgment Mem. at 3; No. 546, Pls.' Resp. to Defs.' Summary Judgment Mot. at 2.) Specifically, on October 16, 2009, the City revised the notices provided to all arrestees ("Revised Notice"), and on November 15, 2010, the City improved the procedures for the return of inventoried money for non-narcotics arrestees. (No. 497, Defs.' Resp. to Pls.' Mot. for Certification of a Supplemental Class. Ex. 1 §5.1, Ex. 4.) As a result of these highly commendable changes to City policy, the parties in this case have been able to reach a settlement that resolves all issues relating to non-narcotic arrestees as well as the bulk of the narcotic arrestee issues. (No. 542, Preliminary Approval Order, Ex. 1.) What remains are the claims of a subset of the Supplemental Class initially certified by this Court on May 12, 2011, to reflect the due process "procedures" issues identified and clarified by the Seventh Circuit in Gates VII. 2011 WL 1811187, at *15. This supplemental procedures class is currently defined as:
All those persons who had money taken from them upon their arrests by Chicago police officers for a narcotics related arrest between March 23, 2002 and May 14, 2011 provided: (a) an inventory receipt was issued to them for the cash that was seized; (b) the criminal charges that resulted in that arrest have been resolved in the trial court; (c) no forfeiture action was commenced against the seized money; (d) the time for filing a forfeiture action has expired; (e) the money was not inventoried as evidence in any criminal investigation; (f) the City of Chicago did not secure a court order to retain the property beyond the final resolution of the criminal charges; (g) the inventoried money, plus interest accruing from the date the criminal charges were resolved, has not been returned to the class member; and (h) they, at the time that the Settlement is finalized, are not members of the Gates Settlement Class laid out in the Stipulation and Agreement of Settlement that was preliminarily approved by the Court on May 13, 2010.*fn3
Gates VIII, 2011 WL 1811187, at *15; (No. 545, Minute Entry, June 16, 2011). Because the claims of individuals arrested for narcotics offenses prior to October 16, 2009, are included in the recent settlement, the group of arrestees with active claims actually consists only of those arrested for narcotics related offenses between October 16, 2009, and May 14, 2011. (No. 538, Defs.' Summary Judgment Mem. at 1; No. 546, Pls.' Resp. to Defs.' Summary Judgment Mot. at 2--3.) In their current motion for summary judgment, Defendants argue that the Revised Notice implemented on October 16, 2009, satisfies all due process concerns raised by the Seventh Circuit in Gates VII and mandates a resolution of the remaining procedural due process issues in their favor. (See generally No. 538, Defs.' Summary Judgment Mem.) For their part, Plaintiffs do not dispute Defendants' assertions that the Revised Notice satisfies due process notice requirements. (Stipulation and Agreement of Settlement, Kennedy v. City of Chicago, No. 06 C 4914, Docket No. 251-1, §5.1.) However, they contest the claim that a change in notice is sufficient to cure the deficiencies identified in the City's inventory return procedures. (No. 546, Pls.' Resp. to Defs.' Summary Judgment Mot. at 2--3.) It is with this record that the Court resolves Defendants' motion.
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment will always bear the initial burden of proving the absence of genuine issues of material fact." Seng-Tiong Ho v. Taflove, 648 F.3d 489, 496 (7th Cir. 2011). Such a genuine issue exists when, after viewing all the evidence in the light most favorable to the non-moving party, the court determines that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248--49 (1986); Nat. Athletic Sportswear, Inc. v. Westfield, Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). "In other words, [for summary judgment to be appropriate,] the record must reveal that no reasonable jury could find for the nonmoving party." Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 627 (7th Cir. 2006) (quoting Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)). The court's role is ...