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Wilson v. City of Evanston

United States District Court, N.D. Illinois, Eastern Division

August 30, 2017




         Plaintiffs Jermaine Wilson (“Wilson”) and Dameon Sanders (“Sanders”) were arrested by the Evanston Police Department (“EPD”) in July 2013. They allege that, at the times of their arrests, EPD took and inventoried various items of personal property in their possession. Plaintiffs were later transferred to the Cook County Jail and permitted to bring only such items of their property as Cook County would accept. The remainder of their property was retained by EPD. Upon their transfer, EPD gave Plaintiffs receipts instructing them that, if the retained property was not retrieved within thirty days, it would be destroyed or otherwise disposed of.

         In this case, Plaintiffs contend that EPD disposed of their property pursuant to this policy and have sued the City of Evanston (“the City”) under 42 U.S.C. § 1983, claiming that EPD's property disposal policy violates their substantive and procedural due process rights. They seek to certify a class of similarly situated individuals. For the reasons that follow, Plaintiffs' motion for class certification [57] is granted.


         In January 2012, EPD revised its policy for handling arrestees' personal property once they were transferred to the custody of Cook County. See Def.'s Resp. Opp'n Mot. Class Cert. 3, ECF No. 63; 2d Am. Compl. ¶ 8, ECF No. 56. According to the City, the January 2012 revision accomplished two goals: (1) making retrieval of property easier for arrestees by enabling them to designate a third party to retrieve their property; and (2) “highlight[ing] the need for immediate action on the part of the arrestee” by reducing the amount of time before EPD would dispose of property from ninety to thirty days. Resp. at 3.

         As part of these revised procedures, EPD prepared a new “Personal Property Receipt” to be given to each transferred inmate. It states in part:

Certain property in your possession[ ] will not be accepted by the Cook County Department of Corrections when you are transported to court for your bond hearing. These items are marked above with a checkmark. In order to protect your property, we have inventoried them with our Property Bureau. You or your designee will have 30 days from the date of your arrest to retrieve these items. If you do not retrieve these items within the 30 days they will be disposed of as provided by statute. THIS IS THE ONLY NOTICE YOU WILL RECEIVE ABOUT YOUR PROPERTY.
These items may be retrieved during the normal operating hours of the Property Bureau as posted on the [EPD] web site. We strongly suggest that you call first to schedule an appointment (847.866.5029).

Pls.' Mot. Class Cert., Ex. 2, ECF No. 57 (emphasis omitted). The form then calls for the arrestee's signature. Id. It also provides a space in which the arrestee can designate a third party who can, “upon presentation of proper identification and the yellow copy of this notice, ” retrieve the arrestee's property. Id. (emphasis omitted).

         Plaintiffs were transferred to the custody of Cook County after their arrest by EPD, and each received a Prisoner Property Receipt documenting various items of property that EPD retained. Resp. at 3. Wilson was arrested by EPD on July 10, 2013. Resp., Ex. 2 (“Wilson Dep.”), at 24:17-20, ECF No. 64-2. He was transferred to the Cook County Jail and remained there while his criminal case was pending for a year and a half. Id. at 57:10-14. During this time, EPD destroyed or otherwise disposed of items of his property. Mot. Class Cert., Ex. 5 ¶¶ 63-64. Sanders was arrested on July 25, 2013. Resp., Ex. 3 (“Sanders Dep.”), at 28:19-22, ECF No. 64-3. He was transferred to the Cook County Jail and remained there while his criminal case was pending for four months. Id. During this time, EPD destroyed or otherwise disposed of items of his property. See Id. at 62:24-63:11.

         Wilson filed this suit against the City on October 23, 2014, and filed an amended complaint on May 12, 2015. In his First Amended Complaint, Wilson asserted a Fifth Amendment takings claim and a Fourteenth Amendment procedural due process claim. 1st Am. Compl. ¶¶ 31-32, ECF No. 26. The City moved to dismiss both claims. The Court granted the City's motion as to the Fifth Amendment takings claim, finding that Wilson had failed to exhaust state law remedies. Wilson v. City of Evanston, No. 14 C 8347, 2016 WL 344533, at *3 (N.D. Ill. Jan. 28, 2016). The Court then addressed two different aspects of Wilson's procedural due process claim. First, it concluded that Wilson did not state a claim based on his theory that the notice contained in the Prisoner Property Receipt was insufficient. Id. at *4. It then turned to Wilson's theory that EPD's procedure for recovering inventoried property was inadequate. Wilson claimed that EPD requires prisoners' designees to be in possession of a receipt in order to pick up property, that Cook County does not provide access to these receipts while prisoners are in custody, and that EPD is aware of this shortcoming. Id. at *5 (citing 1st Am. Compl. ¶ 15). In light of these allegations, the Court held that “Wilson has alleged that [the City's] procedure is not reasonably calculated to allow prisoners who are detained for over thirty days to recover their property, ” and therefore stated a plausible procedural due process claim. Id. Wilson added Sanders as a co-plaintiff and filed a Second Amended Complaint on August 31, 2016.

         The present motion for class certification followed thereafter. Plaintiffs seek to certify two classes under Federal Rule of Civil Procedure (“Rule”) 23(b)(3). One corresponds to a substantive due process-based theory of recovery, and the other to a procedural due process-based theory.[1]

         Under the substantive due process-based theory, Plaintiffs argue that an Evanston ordinance requiring the EPD to store property for sixty days after the final disposition of court proceedings in connection with which the property was taken creates a constitutionally protected property interest.[2] Plaintiffs contend that EPD's property disposal policy violates this protected interest. Mot. Class Cert. at 4.

         Under the procedural due process-based theory, Plaintiffs maintain that, because “persons incarcerated are unable to travel to [EPD] to retrieve their property, ” EPD's policy is not reasonably calculated to permit them to recover their property if they are held for more than thirty days. Pls.' Reply Supp. Class Cert. 10, ECF No. 10. In their supplemental brief, Plaintiffs elaborate on this theory, explaining that they seek a determination of “whether the notice requiring an in-custody arrestee to find a designee to retrieve his (or her) property provides a constitutionally adequate procedure.” Pls.' Supplemental Br. at 7.[3] In their brief, Plaintiffs explain that the named plaintiffs, despite attempting to designate family members to pick up their personal property, were unsuccessful in doing so. Id. at 6-7. At the status hearing in which the Court ordered supplemental briefing, Plaintiffs explained that instead of requiring someone else to retrieve Plaintiffs' property, Evanston “should hold [arrestees' property] until [they] get out.” This theory departs from Plaintiffs' initial theory that Cook County prohibits individuals from keeping their personal property receipts, which Plaintiffs abandon in their briefing. Pls.' Reply at 10-11.

         Plaintiffs propose the following classes for certification:

Class I, Substantive Due Process: All persons whose property, following an arrest on and after October 23, 2012, was held at [EPD] and destroyed or otherwise disposed of before the conclusion of court proceedings in connection with which such property was seized or otherwise taken possession of.
Class II, Procedural Due Process: All persons whose property, following an arrest on and after October 23, 2012, was held at [EPD] and destroyed or otherwise disposed of while that person remained in the custody of a jail or penitentiary.

         Legal Standard

         Plaintiffs move to certify two classes under Rule 23. Under Rule 23(a), it is the movant's burden to establish four requirements: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). If the movant establishes these requirements, the movant must then show that its proposed class satisfies one of the categories in Rule 23(b). Where, as here, the movant seeks to proceed under Rule 23(b)(3), “questions of law or fact common to class members [must] predominate over any questions affecting only individual members, ” and “a class action [must be] superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).

         In regard to these requirements, “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, it is the movant's burden to demonstrate, by a preponderance of the evidence, that the requirements of Rule 23 are satisfied. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). As such, when reviewing a motion for class certification, a court “may not simply assume the truth of the matters as asserted by the plaintiff[s], ” but instead must receive evidence and resolve factual disputes as necessary before deciding whether certification is appropriate. Id. (citing Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001)). “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart, 564 U.S. at 350-51 (internal quotation marks and citation omitted).

         That said, while it is proper to look to the merits in ensuring that class certification is proper under Rule 23, Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010), “[m]erits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied, ” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1195 (2013). “The Seventh Circuit has been as unequivocally clear as the Supreme Court in Amgen, warning that ‘[i]n conducting this analysis, the court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits.'” Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 376 (7th Cir. 2015) (quoting Messner, 669 F.3d at 811.)


         Before turning to analyze whether Plaintiffs have met the requirements of Rule 23, the Court pauses to address the City's initial argument that Plaintiffs' claims are not “[c]ognizable” under § 1983, and that the Court should therefore “deny Plaintiffs' request for class certification without analyzing the proposed classes under Rule 23.” Resp. at 6-8.

         This argument plainly misunderstands the nature of the Rule 23 inquiry. As explained above, it is not the Court's task in evaluating Plaintiffs' class certification motion to determine whether their claims are plausible or will succeed. Merits issues are relevant only insofar as they help determine whether Rule 23's requirements are met. Amgen, 133 S.Ct. at 1195; Bell, 800 F.3d at 376; see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal quotation marks and citation omitted) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”). Thus, despite the City's suggestion otherwise, see Resp. at 6-8, it is irrelevant for the purposes of this motion whether Plaintiffs state adequate substantive and procedural due process claims, or whether their admissions defeat any such claims.[4]The City can pursue such arguments pursuant to Rules 12(c) and 12(h)(2), or on summary judgment under Rule 56. Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1047 (2016) (explaining that failure of proof is an argument for summary judgment, not class certification). Whether the City ordinance on which Plaintiffs ground their substantive due process claims actually creates a protectable interest may be hotly contested, see Resp. at 8, Def.'s Supplemental Brief at 2-3, Pls.' Supplemental Br. at 3-5, but it is a question for another day.

         The City's argument that “Plaintiffs fail to identify the [substantive due process] class definition in the Second Amended Complaint, ” Resp. at 7, fares no better. As the Seventh Circuit has held, “[a] complaint must contain three things: a statement of subject-matter jurisdiction, a claim for relief, and a demand for a remedy. Class definitions are not on that list.” Chapman v. First Index, Inc., 796 F.3d 783, 785 (7th Cir. 2015) (internal citation omitted). In so holding, the court rejected the argument the City raises here: namely, that Plaintiffs should have to amend their complaint to assert their proposed class definition. Id. It is of no consequence, therefore, that Plaintiffs do not propose their class definitions in their complaint.[5]

         For these reasons, the City's merits arguments are misplaced. The Court will now turn to the requirements of Rule 23.

         I. ...

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