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T.S. v. Twentieth Century fox Television

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

January 16, 2020

T.S. and Q.B., individually and on behalf of all others similarly situated, Plaintiffs,



         During the summer of 2015, Plaintiffs T.S. and Q.B. were pretrial detainees at the Cook County Juvenile Temporary Detention Center (“JTDC”). On several days during that summer, Defendant Twentieth Century Fox and other Fox entities (collectively, “Fox Defendants”) filmed scenes for the television show Empire at the JTDC. Plaintiffs allege that Empire filming altered the normal operations of the JTDC in ways that harmed them and other juvenile detainees. In this proposed class action, they assert claims under 42 U.S.C. § 1983 and various supplemental state law theories. See 28 U.S.C. §§ 1331, 1367(a). Plaintiffs bring constitutional claims against Defendants Cook County, Illinois; Leonard Dixon, the Superintendent of the JTDC; the Chief Judge of the Circuit Court of Cook County in his official capacity; and Defendant Does (collectively, “County Defendants”). Plaintiffs assert supplemental state law claims against the County and Fox Defendants. The parties' cross-motions on the issue of class certification[1] are now before the court. As explained here, while some of Plaintiffs' claims may be amenable to class treatment, the class as currently defined-“all youths who were detained at the JTDC during the Empire filming”-is overbroad. Plaintiffs' motion for class certification [235] and Defendants' motion to strike class allegations [212] are both denied without prejudice.


         During three brief periods in the summer of 2015 (June 21-26, July 13-16, and August 23-26), the Fox Defendants filmed scenes for the television show Empire at the JTDC. (Mot. to Deny Class Cert. (“Mot. to Deny”) [212] at 7.) Between 250 and 400 detainees under the age of 18 are held at the JTDC at any given time while they await trial or other court proceedings, remaining there, on average, for less than a month.[2] (Kraus Report ¶ 20, Ex. 2 to Mot. for Class Cert. [236]; Dunlap Dep. 93:8-11, Ex. D to Gov't Reply Mem. [248]; Dunlap Report ¶ 27, Ex. 1 to Mot. for Class Cert.) The JTDC is a five-story building with residential areas on floors three through five, and other facilities for the detainees on the lower floors such as the Nancy B. Jefferson School's classrooms, recreation areas, a visiting room, and a chapel. (Mot. for Class Cert. at 6.) Detainees at the JTDC are housed in residential “pods”-living units of generally fewer than 15 detainees, in which individual cells open onto a shared common area. (Id. at 6, 14.) The detainees' activities at the JTDC occur with the other residents of their pods, and pods generally remain separate from each other. (Mot. to Deny at 8.)

         The JTDC is under the authority of the Office of the Chief Judge of the Circuit Court of Cook County, and Defendant Leonard Dixon is the JTDC's Superintendent. (Mot. for Class Cert. at 7.) In May 2015, JTDC officials, including Dixon, were contacted by a Fox location scout and ultimately agreed to allow the show Empire to film at the facility. (Id.) At times during filming, Plaintiffs allege, there were more than 200 of Empire's cast and crew members at the JTDC. (Id.) Superintendent Dixon permitted the Fox Defendants access to several areas of the JTDC, including the northern part of the outdoor recreation area, pods 3A and 3B (normally two of JTDC's intake pods for male detainees), the chapel, the visitation room, several classrooms, and the hallways surrounding these areas. (Id. at 7-8.)

         Plaintiffs allege that the decision to allow filming at the JTDC caused numerous disruptions to the facility's normal operations. (See Id. at 8-16.) According to Plaintiffs, these disruptions included additional confinement of detainees to their pods, the elimination of outdoor recreation, July classes being conducted on the pods rather than in the Nancy B. Jefferson School classrooms, [3] reduced opportunities for off-pod recreation and programming, disruption to intake procedures, overpopulation of the pods, confinement of visitation to an unusually small space, and delayed response to requests for medical attention. (Id.) The Plaintiffs also allege that filming disrupted the JTDC behavior economy, which uses points to reward detainees for good behavior. (Id. at 16.) Specifically, as detainees earn points, they advance to higher “levels” (starting at level one and moving to level four) and enjoy greater privileges, such as increased access to the commissary, voluntary programs, and tournaments. (Id.; Steward Dep. at 163:8-10, Ex. 15 to Mot. for Class Cert.; Steward Decl. ¶¶ 8-11, Ex. D to Mot. to Deny.)

         As noted, most JTDC residents stay, on average, for periods shorter than one month, but Plaintiff T.S. was a JTDC resident during all three of Empire's filming periods. T.S. claims that he was required to spend more time on his pod during filming. In July, the residents of T.S.'s pod did not go to the classrooms for school, but instead received instruction from teachers who came to the pod. (Mot. for Class Cert. at 9, 18.) T.S. was assigned to level four at the time of filming and was eligible to participate in the JTDC's voluntary programs. (T.S. Dep. 114:12-116:24, Ex. E to Mot. to Deny.) T.S. claims that he signed up for a writing program and a parenting class that were canceled during Empire filming.[4] (Id.; Exs. 12, 33-36 to Mot. for Class Cert.) T.S. asserts, further, that he was denied access to the outdoor recreation yard during Empire filming and that his pod had no off-pod recreation on at least June 24, 2015. (Mot. for Class Cert. at 19.) During Empire filming, T.S. submitted requests for medical attention for a toothache, headaches, and psychological distress, and he believes that the response time was greater than usual. (Id. at 22.) T.S. claims, in addition, that he had less privacy during family visits in the alternative visitation room during filming. (Id.)

         Plaintiff Q.B. was detained at the JTDC during parts of the summer of 2015, but was not detained at the JTDC on any day when school was in session in July. (Mot. to Deny at 24.) Q.B. was assigned to level one and was not eligible to participate in the JTDC's voluntary programs. (Q.B. Dep. 53:9-54:2, 56:9-57:10, Ex. C to Mot. to Deny.) Q.B. does not recall submitting a request for medical attention while Empire was filming at the JTDC. (Mot. for Class Cert. at 22.) Q.B. states that on June 23, 2015, recreation time scheduled for his pod occurred in the pod's common area rather than outdoors or in one of the designated areas on the lower floors of the facility. (Id. at 19.) Q.B. also claims that a visit with his grandmother was canceled on June 23, 2015 when Empire was filming at the JTDC, and that he had less privacy during his visits in the alternative visitation room with his court-appointed mentor. (Id. at 22.)

         Plaintiffs seek to certify a class of all youth detained at the JTDC during Empire filming. They seek money damages from the County Defendants for the alleged violation of their due process rights pursuant to 42 U.S.C. § 1983 (Counts I, II, and VI). They also seek damages under state law theories: intentional infliction of emotional distress against the County Defendants (Count IX) and breach of fiduciary duty against Defendant Dixon and Defendant Does (Count VII). Against the Fox Defendants, Plaintiffs assert state law claims of inducement of a breach of fiduciary duty (Count VII), civil conspiracy (Count X) and unjust enrichment (Count XII).[5]


         Any proposed class must meet four requirements under Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation. Fed.R.Civ.P. 23(a). The class then must satisfy the requirements of one of the three types of classes listed in Rule 23(b). See Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012). For all of their claims, Plaintiffs seek certification under Rule 23(b)(3), which requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). In the alternative, Plaintiffs ask the court to certify a class for their claims against the Fox Defendants under Rule 23(b)(1)(B), appropriate if “adjudications with respect to individual class members . . . would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Fed.R.Civ.P. 23(b)(1)(B).

         A “party seeking class certification must affirmatively demonstrate his compliance with the rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Plaintiffs bear the burden of showing that Rule 23's requirements are met by a preponderance of the evidence. Messner, 669 F.3d at 811. A court may look beyond the pleadings to determine whether class certification is appropriate, because “[o]n issues affecting class certification, [ ] a court may not simply assume the truth of the matters as asserted by the plaintiff.” Id. If there are factual disputes, “the court must receive evidence and resolve the disputes before deciding whether to certify the class.” Id. (internal quotation omitted). This inquiry may involve “some overlap with the merits of the plaintiff's underlying claim, ” Wal-Mart, 564 U.S. at 351, but class certification is not a “dress rehearsal for a trial on the merits, ” Messner, 669 F.3d at 811.

         I. Rule 23(a) Requirements

         A. Class Overbreadth

         Although Rule 23 does not explicitly address the issue, courts have recognized that a proposed class must be ascertainable, meaning that it is “defined clearly and based on objective criteria.” Mullins v. Direct Dig., LLC, 795 F.3d 654, 659 (7th Cir. 2015). If “a class is defined so broadly as to include a great number of members who for some reason could not have been harmed by a defendant's allegedly unlawful conduct, the class is defined too broadly to permit certification.” Messner, 669 F.3d at 824. Class overbreadth is not a merits question. That is, if “a proposed class consists largely . . . of members who are ultimately shown to have suffered no harm, that may not mean that the class was improperly certified but only that the class failed to meet its burden of proof on the merits.” Id.

         A class definition is not infirm merely because it may include a small percentage of persons who were not harmed. Messner, 669 F.3d at 825-26 (reversing denial of class certification where defendant admitted that only about 2.4 percent of the putative class members could not have been harmed by alleged anticompetitive practices). Still, a class definition that sweeps in a large proportion of persons who could not have been injured is overbroad. See Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (affirming district court's refusal to certify a proposed class that included millions of people who could not have been injured by defendant's failure to disclose ingredients in diet fountain drinks).

         In the case before this court, Plaintiffs' proposed class, defined as all youth detained at the JTDC during Empire filming, may indeed include some individuals who could not have been harmed. William Steward, a Deputy Executive Director of the JTDC, testified in his deposition that many detainees arrive at the JTDC and are released shortly thereafter, without ever having left the intake unit. (Steward Dep. 266:3-21.) This could happen, for example, if a detainee is not ultimately charged, or the court does not order the individual to be confined at the JTDC. (Id.) As Plaintiffs have not specifically stated what it means to be “detained” for purposed of the class definition, some detainees who never leave the intake unit are currently included in the class definition. (See Gov't Sur-Reply [278] at 1.) Plaintiffs defend this, noting that these individuals were nevertheless affected by Empire filming because when scenes were filmed at the entrance of the JTDC, new detainees were required to be shackled as they entered the facility.[6] (Pls.' Sur-Reply [279] at 7.) As Defendants observe, however, individuals who were never assigned to a pod could not have experienced the alleged alterations to the normal operations of the pods. Moreover, the injury that this group is alleged to have experienced-shackling-has not been raised as a class claim. That said, the court is uncertain how many putative class members fall within the group of individuals who were never transferred from the intake area to a residential pod, and believes that the inclusion of some number of individuals who were not ultimately confined at the JTDC is not, by itself, a basis to deny class certification in this case. Instead, this concern must be addressed by means of a narrower class definition.

         B. Numerosity

         To be certified, the proposed class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In the Seventh Circuit, a class as small as forty members may suffice. See Neil v. Zell, 275 F.R.D. 256, 260 (N.D. Ill. 2011). Based upon the report of their expert that the JTDC was operating near its Functional Operating Capacity of 382 detainees during the period of Empire filming (Dunlap Report ¶ 60), Plaintiffs estimate that there are at least 300 potential class members. (Mot. for Class Cert. at 17.) Defendants do not challenge Plaintiffs' ability to meet the requirements of Rule 23(a)(1).

         C. Commonality

         To satisfy the commonality requirement, Plaintiffs must show that there are “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(1). Even one common question may suffice. See Phillips v. Sheriff of Cook Cty., 828 F.3d 542, 550 (7th Cir. 2016) (quoting Wal-Mart, 564 U.S. at 359). A superficial common question, such as whether class members “have all suffered a violation of the same provision of law, ” McCaster v. Darden Rests., 845 F.3d 794, 800 (7th Cir. 2017) (quoting Wal-Mart, 564 U.S. at 350), is not sufficient for class treatment, however. See Van v. Ford Motor Co., 332 F.R.D. 249, 273 (N.D. Ill. 2019). Rather, a prospective class must show that “determination of [the] truth or falsity [of a common contention] will resolve an issue that is central to the validity of each one of the claims in one stroke.” Phillips, 828 F.3d at 550 (quoting Wal-Mart, 564 U.S. at 340). “The critical point is ‘the need for conduct common to members of the class.'” Phillips, 828 F.3d at 553 (quoting Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)). “[S]upplemental proceedings can [ ] take place if, for example, the common question relates to liability of the defendant to a class and separate hearings are needed to resolve the payments due to each member.” Spano v. The Boeing Co., 633 F.3d 574, 585 (7th Cir. 2011).

         Defendants' motion to deny class certification does not challenge Plaintiffs' ability to meet the commonality requirement, conceding that “the presence of Empire's cast and crew on those few days in June, July, and August 2015 had some impact on the JTDC's normal operations.” (Mot. to Deny at 17.) The court finds that Plaintiffs have identified at least one question that is common to the class-whether Empire filming disturbed operations at the JTDC in ways that violated class members' constitutional rights. Accordingly, Plaintiffs have satisfied Rule 23(a)'s commonality requirement.

         Plaintiffs assert that the County Defendants violated their due process rights by altering the JTDC's normal operations to facilitate Empire filming. To pursue such a claim under 42 U.S.C. § 1983, Plaintiffs must allege “(1) the deprivation of a right secured by the Constitution or federal law and (2) that defendants were acting under color of state law.” Wilson v. Warren Cty., Ill., 830 F.3d 464, 468 (7th Cir. 2016). After the close of briefing, the Seventh Circuit clarified the correct standard to apply to unlawful conditions of confinement claims brought by pretrial detainees. See Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019). It is the Fourteenth Amendment's Due Process Clause, not the Eighth Amendment's prohibition of cruel and unusual punishment, that governs challenges to a pretrial detainee's conditions of confinement. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). This is because pretrial detainees, unlike convicted prisoners, may not be punished. Hardeman, 933 F.3d at 821; see also Schall v. Martin, 467 U.S. 253, 269 (1984). For some time, courts in this Circuit have recognized “little practical difference, if any, between the standards applicable to pretrial detainees and convicted inmates when it comes to conditions of confinement claims, ” and have therefore analyzed such claims under the Eighth Amendment test. Smith v. Dart, 803 F.3d 304, 310 (7th Cir. 2015). More recently, the Supreme Court has clarified that “the interests of pretrial detainees and prisoners derive from separate sources and must be assessed differently.” Hardeman, 933 F.3d at 822 (citing Kingsley, 135 S.Ct. at 2473). Accordingly, in Hardeman, the Seventh Circuit held that “Kingsley's objective inquiry applies to all Fourteenth Amendment conditions-of-confinement claims brought by pretrial detainees.”[7] 933 F.3d at 823.

         As explained in Judge Sykes's concurring opinion, to succeed on a conditions-of-confinement claim, a pretrial detainee must prove that

(1) the conditions in question are or were objectively serious (or if the claim is for inadequate medical care, his medical condition is or was objectively serious); (2) the defendant acted purposefully, knowingly, or recklessly with respect to the consequences of his actions; and (3) the defendant's actions were objectively unreasonable-that is, ‘not rationally related to a legitimate governmental objective or . . . excessive in relation to that purpose.'

Hardeman, 933 F.3d at 827 (Sykes, J., concurring) (quoting Kingsley, 135 S.Ct. at 2473-74). A court should consider the severity and duration of the conditions experienced by pretrial detainees because there is “a de minimis level of imposition with which the Constitution is not concerned.” Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979) (quoting Ingraham v. Wright, 430 U.S. 651, 674 (1977)); see also Hardeman, 933 F.3d at 824 (majority). A combination of conditions of confinement that are “not individually serious enough to work constitutional violations, may violate the Constitution . . . when they have ‘a mutually enforcing effect that produces the deprivation of a single, identifiable human need'” such as food or exercise. Budd v. Motley, 711 F.3d 840, 842- 43 (7th Cir. 2013) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). The second element, requiring purposeful, knowing, or reckless conduct, reflects that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Kingsley, 135 S.Ct. at 2472; see also Miranda v. Cty. of Lake, 900 F.3d 335, 353 (7th Cir. 2018) (“[N]egligent conduct does not offend the Due Process Clause.”).

         The third element of a conditions-of-confinement claim incorporates the reasoning of Bell v. Wolfish. In Bell, the Supreme Court explained that, when assessing whether “particular restrictions and conditions accompanying pretrial detention amount to punishment, ” the court “must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” 441 U.S. at 538. “In the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not ‘rationally related to a legitimate nonpunitive governmental purpose' or that the actions ‘appear excessive in relation to that purpose.'” Kingsley, 135 S.Ct. at 2473 (quoting Bell, 441 U.S. at 561).

         The primary common question that Plaintiffs have identified is whether “the deprivations imposed on the hundreds of detainees at the JTDC were done for a legitimate governmental purpose.”[8] (Mot. for Class Cert. at 31.) As so stated, that question appears to assume one element that Plaintiffs need to prove-that the alterations to the normal operations of the JTDC experienced by each detainee were serious enough to be considered “a problem of constitutional magnitude.” Hardeman, 933 F.3d at 824. The core issue that Plaintiffs raise, however, is whether allowing Empire to film at the JTDC is a legitimate justification for altering the normal operations of the facility.[9] This is an issue that is common to all proposed class members. As Plaintiffs have not alleged that the County Defendants intended to punish them, their due process claim requires a showing either that the County Defendants' actions were “not rationally related to a legitimate governmental objective, ” or that their actions were “excessive” in relation to a legitimate governmental objective. Kingsley, 135 S.Ct. at 2473. Whether filming serves a legitimate government purpose may not be dispositive of the County Defendants' liability (cf. Mot. for Class Cert. at 31), but that question is one that is common to every member of the putative class. Accordingly, Plaintiffs have satisfied Rule 23(a)'s commonality requirement.

         D. Typicality

         Rule 23(a)(3) requires that the “claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). The typicality requirement is “liberally construed.” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996). The claims of the representatives need not be identical to those of the class members, but they should have the “same essential characteristics as the claims of the class at large.” Oshana, 472 F.3d at 514; Van, 332 F.R.D. at 280. The representatives' injuries must “arise[ ] from the same event or practice or course of conduct that gives rise to the claims of other class members” and must be “based on the same legal theory.” Oshana, 472 F.3d at 514 (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). Overall, “there must be enough congruence between the named representative's claim and that of the unnamed members of the class to justify allowing the named party to litigate on behalf of the group.” Spano, 633 F.3d at 586. As an initial point, because the parties only briefed the due process standard applicable to conditions-of-confinement claims by pre-trial detainees (rather than the Eighth Amendment standard that applies to convicted persons), the class definition should be limited to individuals who have not been convicted of a crime.

         Some of the conduct giving rise to Q.B. and T.S.'s claims appear to be typical of the class, but other alleged deprivations that they experienced appear to be unique. The primary issues of typicality relate to Plaintiffs' claims arising out of the altered school schedule, voluntary programming, and medical care. The current class definition includes detainees who were not at the JTDC while school was in session, detainees who were not eligible to participate in voluntary programming, and detainees with varying medical needs. The class could be redefined to include only the alleged deprivations that are common to every class member; to the extent this would risk prejudicing class members with stronger claims by grouping them with weaker claims, see Van, 332 F.R.D. at 282, the court would entertain proposed subclasses.


         The Nancy B. Jefferson School at the JTDC was on break in late June and August; thus, the only sessions interrupted by Empire filming days were in July. (See Dixon Dep. at 71:2-10, Ex. 6 to Mot. for Class Cert.; Steward Decl. ΒΆΒΆ 3-5.) T.S., but not Q.B., was detained at the JTDC in July when classes were conducted in the pods rather than in the classrooms. As currently defined, the class is overbroad with respect to this claim. The court recognizes, further, that because the ...

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