United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE UNITED STATES DISTRICT JUDGE.
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.
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  is granted.
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.
of these revised procedures, EPD prepared a new
“Personal Property Receipt” to be given to each
transferred inmate. It states in part:
NOTIFICATION REGARDING YOUR PROPERTY
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
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
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).
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.
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.
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
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. Plaintiffs contend that EPD's property
disposal policy violates this protected interest. Mot. Class
Cert. at 4.
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. 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.
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.
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.
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
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.)
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.
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.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.
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.
these reasons, the City's merits arguments are misplaced.
The Court will now turn to the requirements of Rule 23.