United States District Court, N.D. Illinois, Eastern Division
Elizabeth Alicea, Michelle Urrutia, Katina Ramos, and Jack Artinian, individually and on behalf of others similarly situated, Plaintiffs,
County of Cook, and Thomas J. Dart, individually and in his official capacity as Sheriff of Cook County, Defendants.
MEMORANDUM OPINION AND ORDER
A. GUZMÁN UNITED STATES DISTRICT JUDGE.
reasons stated below, the Court denies Plaintiffs' motion
for class certification . Plaintiffs may renew their
motion for class certification with a revised proposed class
definition no later than December 13, 2019. Defendants may
either respond to the renewed motion for class certification
or file a motion seeking to proceed first with a
determination on the merits. Either way, Defendants have
until January 8, 2019 to submit their filing. At that time,
the Court will review the parties' filings and issue an
order as to how it will proceed.
Court assumes familiarity with the facts and history of this
case. The Court has reviewed the parties' recent
submissions, their briefs on class certification, and
additional case law addressing the Fourth Amendment as it
relates to searches of pretrial detainees and concludes that,
as currently defined, Plaintiff's class is unable to be
proposed class is defined as follows:
All persons who used a toilet in a holding cell in a
courthouse in Cook County, Illinois since August 8, 2016,
wherein any part of the toilet is visible in the camera feed
monitoring the cell.
Court noted in its order of July 24, 2019, to be certified as
a class action, a proposed class must satisfy the
requirements of Federal Rule of Civil Procedure
(“Rule”) 23(a) and one of the three alternative
requirements in Rule 23(b). Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Rule
23(a) provides that a class may be certified if: (1) the
class is so numerous that joinder of all putative class
members is impracticable (“numerosity”); (2)
there are questions of law or fact common to the putative
class (“commonality”); (3) the claims or defenses
of the named party are typical of the claims or defenses of
the putative class members (“typicality”); and
(4) the named party will fairly and adequately protect the
interests of the class (“adequacy”). Fed.R.Civ.P.
23(a). “[A] proposed class must always meet the Rule
23(a) requirements[.]” Messner, 669 F.3d at
811. “Because Rule 23(a) provides a gate-keeping
function for all class actions, ordinarily [courts] would
begin there and only turn . . . to Rule 23(b) after [the
court is] certain that all of Rule 23(a)'s requirements
had been met.” Bell v. PNC Bank, Nat'l
Ass'n, 800 F.3d 360, 374 (7th Cir. 2015).
further reflection, the Court finds that, as currently
defined, the proposed class is too broad to satisfy the
commonality requirement. See Duffin v. Exelon Corp.,
No. 06 C 1382, 2007 WL 1385369, at *2 (N.D. Ill. May 4, 2007)
(“The court . . . has inherent authority to reconsider
interlocutory orders before entering final judgment.”).
Plaintiffs' proposed definition includes “all
persons”; apparently realizing the overbroad nature of
their definition, Plaintiffs assert in their reply in support
of their motion for class certification that
“persons” “clearly means”
“pretrial detainees.” (Reply, Dkt, # 113, at 2
n.1.) The Court questions this assertion, but even accepting
arguendo Plaintiffs' contention and substituting pretrial
detainees for “persons, ” it is clear that
specificity in the confined-person's status is necessary
in the Fourth Amendment context. In Fonder v. Sheriff of
Kankakee County, 823 F.3d 1144 (7th Cir. 2016), for
example, the Seventh Circuit found the certification of a
class of arrestees alleging a Fourth Amendment violation for
being strip searched to be problematic because class members
who had been arrested, strip searched, and immediately
released were treated the same as arrestees who had been
strip searched and sent to the general population of the
county jail. Id. at 1146. The Seventh Circuit found
this aggregation improper, noting that
[a]t least two members of the class . . . contend that they
were arrested, strip searched, and then immediately released.
Perhaps others are in that category. If they are telling the
truth, they have good claims that their [Fourth Amendment]
rights have been violated. Yet they are members of the class
defined by the district court and so are barred by principles
of preclusion from filing their own suits.
Id. See also Adair v. Town of Cicero, No.
18 C 3526, 2018 WL 5112949, at *2 (N.D. Ill. Oct. 19, 2018)
(“Johnson's Fourth Amendment holding [that
confined persons do not have a right of privacy when using
the toilet] applies only to prisoners and pretrial detainees
- not arrestees awaiting a probable-cause hearing.”).
characterize themselves as “pretrial detainees”
and allege that “the vast majority” of putative
class members were “temporarily held, ”
“have simply been arrested and are waiting to go to
court to post bond for their release, ” and “have
not been convicted of any crime.” (Compl., Dkt. # 1,
¶ 2.) But the term “pretrial detainee” could
include a variety of individuals - from those who have just
been arrested and are waiting to post bond to those who are
unable to make bond and are shuttling back and forth between
the jail and the courthouse for status hearings. The Fourth
Amendment treats these individuals differently, but
Plaintiffs' proposed definition does not account for this
may renew their motion for class certification with a revised
proposed class definition no later than December 13, 2019.
Plaintiffs are directed to provide citations to Seventh
Circuit case law in support of their proposed definition in
order to assist the Court in determining whether a summary
judgment motion should be briefed before the renewed class
certification motion. See Talley v. NCO Fin. Sys.,
Inc., No. 06 C 48, 2006 WL 2927596, at *2 (N.D. Ind.
Oct. 12, 2006) (“[Considering the advisory committee
notes to the 2003 Amendments to Rule 23, and noting that the
Defendant's Motion for Summary Judgment will be fully
briefed shortly, the Court finds that, in this case, it is in
the interests of judicial economy and efficiency for the
Court to rule on the motion for summary judgment prior to the
motion for class certification in order to determine whether
the claim of the named Plaintiff lacks merit and thus whether
the motion for class certification is
moot.”). See also Hartley v. Suburban
Radiologic Consultants, Ltd., 295 F.R.D. 357, 368 (D.
Minn. 2013) (“To require notice to be sent to all
potential plaintiffs in a class action when the underlying
claim is without merit is to promote inefficiency for its own
the Fonder court stated that “[i]f the
evidence calls into question the propriety of defining a
class in a particular way, then the definition must be
modified or subclasses certified.” Id. at
1147. Given the amount of money and effort that will be
expended in providing class notice as Plaintiffs have
outlined in their supplemental filing, Plaintiffs are
directed to address in their motion for ...