United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiffs, Doe II and Doe III, sued the City of Harvey and its Police Department ("Harvey") for allegedly maintaining a policy of discrimination against female victims of sexual assault in violation of Section 1983 and the Equal Protection Clause of the U.S. Constitution. Before the Court is plaintiffs' amended motion for class certification on behalf of themselves and the putative class members, comprising all females who reported sexual assaults to Harvey on or after August 3, 1997. (Dkt. #106, Mot.) For the following reasons, the Court denies plaintiffs' motion.
Plaintiffs, on behalf of themselves individually and others similarly situated, filed an initial complaint in March 2012, alleging that Harvey failed to investigate diligently the sexual assault allegations made by women. Plaintiffs allege that following the report of a sexual assault of a woman, as part of the investigation, a sexual assault evidence collection kit is taken for testing. However, plaintiffs' cases were investigated by different Harvey detectives, each of whom exercised their own discretion regarding investigatory strategies. Some class members' cases were solved without any delay. In other cases, Harvey detectives allegedly failed to collect a sexual assault evidence kit at all; or Harvey collected the evidence kits, but failed to submit the kits for testing; or the kits were submitted, but prompt follow up was not received. This, plaintiffs allege, resulted in damage to plaintiffs and the putative class, as well as the spoliation of evidence. It is plaintiffs' contention that these failures, as well as an overall lack of instruction and training in dealing with victims of sexual assault, represent Harvey's practice of not treating sexual assault complaints by female victims seriously.
Plaintiffs move to certify a class of "all females who reported sexual assaults to the City of Harvey Police Department on or after August 3, 1997." (Dkt. #7, First Amended Complaint, at ¶ 9(b)). Both Doe II and Doe III are members of this class.
The four representative class members are identified as follows:
Doe I was 11 years old when her mother reported a sexual assault on August 3, 1997. (Dkt. #118-12, Doe I Dep. 11, 104-06.) Detective Joshua took Doe for a victim sensitivity interview shortly thereafter at La Rabida Hospital. ( Id. at 72.) Doe I then recanted her allegations. ( Id. at 77, 79, 82.) The offender, her step-father, denied sexual relations (Dkt. #118-7, Teresa Dep. 52), and her mother opted not to press charges. (Dkt. #118-10, Joshua Dep. 269-70). The Illinois Department of Children and Family Services investigated. (Teresa Dep. 63.) A rape kit was taken and submitted to the Illinois State Police ("ISP") on August 6, 1997. (Joshua Dep. 200.) The results were allegedly sent to Harvey on September 19, 1997, but Detective Joshua testified that he did not see them. ( Id. at 256.)
Doe II was 17 years old when she was assaulted by a person she knew on May 24, 2007. (Dkt. #118-5, Doe II Dep. 7, 66, 100.) The offender claimed the sexual relation was consensual. ( Id. at 79.) A rape kit was taken and submitted to the ISP on June 15, 2007 for processing. ( Id. at 82.) A medical exam showed tearing of the vagina and anus. ( Id. at 83.) The assailant was arrested on June 15, 2007. ( Id. at 75.)
Doe III was in eighth grade when she was first assaulted on April 28, 2008 in a bathroom at school by an offender that she knew. (Dkt. #114-3, Doe III Dep. 47, 74.) The offender claimed no assault occurred and that the sexual relation was consensual. ( Id. at 61.) Doe III had engaged in consensual sexual relations with the offender on April 2, 2008, also in a bathroom at school. ( Id. at 47.) Detective Armstrong interviewed Doe III and the offender. (Dkt. #118-6, Sales Dep. 109.) The Assistant State's Attorney did not approve felony charges. ( Id. at 89.) The offender's case was transferred to the Cook County Juvenile Division. (Dkt. #118-13, Aff. of Placement, Juvenile Division.) On April 11, 2012, Harvey sent the rape kit for processing and a DNA match was made to a sperm sample from the vaginal swabs. (Dkt. #118-15, Doe III ISP Report, RN 851B-08, redacted.) Doe III's second assault was committed on May 15, 2008, by a stranger in an abandoned house. (Doe III Dep. at 150-161.) A rape kit was taken and submitted for processing on June 11, 2008. (Doe III ISP Report, CRN4522B-08, redacted.) There was no other physical evidence or witnesses, and the offender has yet to be identified. (Doe III Dep. 61.)
The fourth identified class member, TM, was 13 years old when she was assaulted by a stranger on November 30, 1999. (Dkt. #118-8, TM Dep. 19, 32.) She did not see the offender's face. ( Id. at 36.) The rape kit was submitted to the ISP for testing on October 27, 2010, and no DNA match was identified. (Dkt. #118-17, TM ISP Report, RN 14685A-99, redacted.) The offender has yet to be identified.
Plaintiffs argue that class certification is appropriate under two separate provisions of the Federal Rules of Civil Procedure: 23(b)(2) because Harvey acted or refused to act in the same manner as to all class members, and 23(b)(3) because Harvey violated the class members' equal protection rights. Plaintiffs additionally assert that this action is maintainable under Rule 23(c)(4) for all the class issues alleged. Harvey opposes plaintiffs' motion arguing that plaintiffs cannot meet the commonality, typicality, or adequacy of representation requirements of Rule 23(a). Moreover, Harvey contends that plaintiffs also fail to meet the requirements of 23(b)(2), Rule 23 (b)(3), and Rule 23(c)(4), as each member seeks damages that justify individual suits, and because common injunctive and declaratory relief cannot be ordered class-wide. Additionally, Harvey moves to strike certain evidence and exhibits cited in support of plaintiffs' motion for class certification.
Class certification depends not on the merits of the lawsuit, but on whether the requirements of Federal Rule of Civil Procedure 23 are met. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). To obtain class certification under Rule 23, plaintiffs must satisfy each requirement of Rule 23(a) - numerosity, commonality, typicality, and adequacy of representation - and one of the three subsections of Rule 23(b). See Harper v. Sheriff of Cook County, 581 F.3d 5120961, 513 (7th Cir. 2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). In this case, Plaintiffs argue that class certification is proper under Rule 23(b)(2), 23(b)(3), and 23(c)(4). (Mot. at 11.)
In order to grant class certification under Rule 23, the Court must be "satisfied, after a rigorous analysis" that the Rule's requirements are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __, 131 S.Ct. 2541, 2551 (2011) (citation omitted). "Frequently that rigorous analysis' will entail some overlap with the merits" of the claim. Id. "Failure to meet any of the Rule's requirements precludes class certification.'" Harper, 581 F.3d at 513 (quoting Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008)). Satisfaction of these requirements, on the other hand, categorically ...